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OFFICIAL OPINIONS

THE ATTORNEYS-GENERAL

Sl|? dommnniuf altl| of iKaHBarI]uarttfi.

PUBLISHED BY THE

ATTORNEY-GENERAL.

Volume III.

From 1906 to 1912 inclusive.

BOSTON :

WRIGHT & POTTER PRINTING CO., STATE PRINTERS,

32 DERNE STREET.

1913.

THIS VOLUME CONTAINS
THE OPINIONS OF ATTORNEYS-GENERAL

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

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

PREFACE.

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

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

Attorney-General.

JAMES M. SWIFT,

Attorney-General.

Boston, November, 1913.

Table of Statutes cited or referred to in this

Volume.

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

United States Constitution.

. 268

267, 268, 496

. 267

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

PAGE

. 438
. 433

. 277

Acts of Congress.

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

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

§ 5219,

United States Revised Statutes.

PAGE I

. 410 I § 5278,

PAGE

. 434

Constitution of the Commonwealth.

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

art. 30, . 191, 222, 510

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

§ 1, art. 4, 154, 285, 287,

300, 385, 410, .500, 549

c. 2, § 1, art. 7, . . 547

§ 1, art. 10, . . 548

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

§ 3, art. 1, 5, . . 227

§ 4, art. 2, . . 415

Const., c. 5, § 2, . . . . 385

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

art. 18, 75, 156

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

1821, c. 32, § 1,

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

Statutes of the

PAGE

69
155

14
550
551
550

38
551
333

Common\\t:alth .

PAGE

1854, c. 448, § 47,

. 555

1857, c. 56,

. 13

1860, c. 211,

. 541

1863, c. 220,

. 308

c. 220, §§ 1-8,

. 309

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

. 562

c. 223,

. 310

1865, c. 283, § 8, .

. 188

1866, c. 67,

. 413

Vlll

STATUTES CITED.

Statutes of the Commonwealth — Con.

PAGE

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.

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,

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,

7, 428, 528

c. 386,

. 138

c. 484, § 3,

. 206

§1, .

. 139

c. 520, § 1,

454, 574

§2, .

. 141

§2,

4, 455, 574

c. 402, § 1, .

. 512

§§3,

. 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,

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.

Statutes of the Commonwealth — Con.

1908, c. 60i,

§ 142,

§§ 142-150,

1909, 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

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

247

156

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, .

PAGE

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

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

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.

1889, c. 5,
c. 146,

§10,

Laws of New Hampshire.

PAGE

. 202

1893, c. 100,

. 202

. 203

1895, c. 27, §§ 22, 23, .

. 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

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

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

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

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.

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.

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. •

OPINIONS OF THE ATTORNEY-GENERAL.

To the Boiird
of Registration
in Pharmacy.

1906
May 9.

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

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

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

To the Board
of Registration
in Pharmacy.

liKW
May 2.i.

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

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

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

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

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

DANA MALONE, ATTORNEY-GENERAL. 51

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

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

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

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

TrG£lS1J TGT

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

_ General.

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

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

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

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

52 OPINIONS OF THE ATTORNEY-GENERAL.

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

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

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

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

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

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

DANA MALONE, ATTORNEY-GENERAL. 53

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

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

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

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

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

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

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

54 OPINIONS OF THE ATTORNEY-GENERAL.

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

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

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

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

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

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

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

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

DANA MALONE, ATTORNEY-GENERAL. 55

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

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

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

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

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

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

56 OPINIONS OF THE ATTORNEY-GENERAL.

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

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

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

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

DANA MALONE, ATTORNEY-GENERAL. 5^

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

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

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

"^ p ' t 0 t "^ P intendent of

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

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

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

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

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

190(5
July 18.

5S OPINIONS OF THE ATTORNEY-GENERAL.

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

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

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

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

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

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

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

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

DANA MALONE, ATTORNEY-GENERAL. 59

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

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

The Massachusetts Highway Commission request my opinion To the

. p • Massachusetts

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

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

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

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

60 OPINIONS OF THE ATTORNEY-GENERAL.

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

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

Section 21 provides: —

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

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

DANA MALONE, ATTORNEY-GENERAL. 61

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

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

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

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

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

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

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

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

Hospital.

1906
July 26.

(^2 OPINIONS OF THE ATTORNEY-GENERAL.

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

To your questions I reply as follows : —

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

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

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

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

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

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

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

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

DANA MALONE, ATTORNEY-GENERAL. 63

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

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

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

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

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

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

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

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

04 OPINIONS OF THE ATTORNEY-GENERAL.

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

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

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

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

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

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

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

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

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

DANA MALONE, ATTORNEY-GENERAL. 65

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

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

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

No.

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

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

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

. CJeneral.

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

. , ''' July 31.

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

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

66 OPINIONS OF THE ATTOENEY-GENERAL.

Taxation — Exemption — "Farming Utensils" — Person.

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

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

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

All hand tools for farming.

Plow, including "Riding Plow."

Harrow.

Cultivator.

Planter, geared and otherwise.

Mowdng machine.

Tedder.

Horse rake.

Reaper, including reaper and binder.

Potato digger.

Ensilage cutter.

Spray pump, also tank. ,

Churn.

Wagon, where used principally for farm purposes.

Cart, where used principally for farm purposes.

Sled, where used principally for farm purposes.

Chains.

Manure spreader.

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

Windmill, including pump.

Boiler (steam), also cooker.

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

Power saw (for fire wood).

Fruit evaporator.

Cider mill and press.

DANA M ALONE, ATTORNEY-GENERAL.

Incubator.

Cream separator.

Cream cooler.

Honey extractor (centrifugal) .

Carriage.

Wagon (other than farm wagon).

Cart (other than farm cart) .

Sled (other than farm sled) .

Sleigh.

Pung.

Harness (blankets, whips, robes).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DANA MALOXE, ATTORNEY-GENERAL. 69

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

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

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

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

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

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

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

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

' ' , Commissioner

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

"^ ^ ^ _ "^ October lb.

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

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

70 OPINIONS OF THE ATTORNEY-GENERAL.

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

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

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

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

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

Insurance — Fire Insurance — Explosion.

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

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

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

Novembers. » ,1 jr ^

as toUows: —

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

DANA MALONE, ATTORNEY-GENERAL. 71

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

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

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

City and Town — Debts — Refunding or Renewal.

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

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

Treasurer

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

^ *^ _ General.

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

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

OPINIONS OF THE ATTORNEY-GENERAL.

within twenty years,
that : —

Section 18 of the same chapter provides

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

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

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

To the Board
of Recistration
in Pharmacy.

I'JOG
November 30.

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

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

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

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

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

DANA MALONE, ATTORNEY-GENERAL. 73

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

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

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

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

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

n- -rt • /^' • • • 11 River Basin

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

OPINIONS OF THE ATTORNEY-GENERAL.

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

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

Section 3 provides : —

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

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

DANA MALONE, ATTORNEY-GENERAL. 75

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

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

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

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

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

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

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

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

OPINIONS OF THE ATTORNEY-GENERAL.

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

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

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

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

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

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

DANA MALONE, ATTORNEY-GENERAL. 77

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

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

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

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

7S OPINIONS OF THE ATTORNEY-GENERAL.

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

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

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

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

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

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

DANA M ALONE, ATTORNEY-GENERAL. 79

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

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

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

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

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

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

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

so OPINIONS OF THE ATTORNEY-GENERAL.

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

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

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

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

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

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

DANA MALONE, ATTORNEY-GENERAL. 81

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

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

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

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

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

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

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

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

OPINIONS OF THE ATTORNEY-GENERAL.

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

It appears from this section that the principal duty of the
Board created by this section of the statute, with relation to
matters of health, was the investigation of contagious or in-
fectious diseases and the prevention of such diseases, and it is
therefore provided that the Board shall consult with the local
authorities thereon. Then follows the phrase under considera-
tion,— "and shall have co-ordinate powers as a board of
health, in every place, with the board of health," etc.

The strong reason for assuming that the powers referred to
are conferred only where contagious disease exists or is likely to
exist is the fact that they are mentioned in a section which pur-
ports to treat only of contagious or infectious diseases. Upon
the whole, I am of opinion that the words as used in R. L.,
c. 75, § 8, are applicable only to places throughout the Common-
wealth where contagious disease exists or seems likely to exist,
and are confined to such place.

To the

Insurunce

Commissioner

1907
February 13.

Insurance — Assessment Insurance — Foreign Corpora-
tion — Change from Assessment to Old Line Busi-
ness— Valuation of Policies.

A foreign insurance company admitted to this Commonwealth under the provisions
of St. 1890, c. 421, an act relating to assessment insurance, which transacted
business therein under the provisions of such statute until June 9, 1899,
when it was authorized to transact the business of old line life insurance
and since such date has transacted such business, is entitled to have its
poUcies valued and to have a reserve maintained thereon on the basis of
renewable term insurance, in accordance with R. L., c. 118, § 11, cl. 4, par. 2.

You request my opinion as to whether the Security Mutual
Life Insurance Company of New York, which was admitted to
Massachusetts in 1893 under the provisions of chapter 421 of
the Acts of 1890, and transacted business in this Common-
wealth as an assessment life company until June 9, 1899, when
it was authorized to transact business as an old line life com-

DANA MALONE, ATTORNEY-GENERAL. 83

pany, and which has continued to transact such business in that
way since that date, is entitled to have its policies valued in
accordance with the second paragraph of the fourth clause of
section 11 of chapter 118 of the Revised Laws. This paragraph
is as follows : —

All policies or certificates of insurance issued before the first day of
luly in the year eighteen hundred and ninety-nine by corporations which
"ormerly transacted a life insurance business under the provisions of
•hapter four hundred and twenty-one of the acts of the year eighteen
lundred and ninety and acts in amendment thereof, and which now have
luthority to do business in this commonwealth under the provisions of
.his cliapter, which policies or certificates are in force on the thirty-fii-st
lay of December of anj- year and which contain a provision for a payment
)ther than the premium stipulated therein and under which the duration
)f the premium payment is the same as the duration of the contract,
'xcept in endowment certificates and endowment policies, shall be valued
md shall have a reserve maintained thereon on the basis of renewable
erm insurance as fixed bj^ attained age in accordance with the provisions
)f this chapter. To the reserve liabilitj^ determined as above the insurance
lommissioner shall add the determinate contract reserve under anj^ other
)olicies or certificates issued bj^ said companies, before said first day of
I'uly and remaining in force on the thirtj^-first day of December of any
"•ear, and in the absence of such contract reserve shall value them as
;ontracts providing similar benefits are to be valued under the provisions
)f this chapter. But under no policy or certificate shall a greater aggre-
gate reserve liability be charged than is otherwise required by this chapter.
Ul policies of life insurance issued by any such corporation subsequent
0 the first day of July in the year eighteen hundred and ninety-nine,
ncluding those which contain a provision for a pa5auent other than the
iremiums specified therein, shall be valued and a reserve maintained
hereon according to the provisions of this chapter, but all such policies
^sued by said former assessment corporations prior to the first daj' of
anuary in the year nineteen hundred and three, shall be valued taking
he first year as one-year-term insurance.

Chapter 229 of the Acts of 1899 was passed April 1, 1899,
'Ut by section S was to take effect July 1, 1899. This com-
'any changed its business from an assessment to an old line
Drm of business on June 9, 1899, as it was entitled to under the
iw as it stood prior to the passage of chapter 229 of the Acts
f 1899.

OPINIONS OF THE ATTORNEY-GENERAL.

I am of opinion that the Legislature did not intend to limit
the benefits conferred by the portion of the section above
quoted to those companies that changed from an assessment to
an old line form of insurance upon or subsequent to July 1,
1899. Consequently, R. L., c. 118, § 11. cl. -i, par. 2, does not
exclude this company simply on the ground that on the first day
of July, 1899, it was already engaged in transacting old line
insurance. Therefore, the company is entitled to have its poli-
cies valued in accordance with the provisions of the above
quoted section.

To the Super-
intendent of
State Adult
Poor.
1907
March 5.

Pauper — Derivative Settlement — Retroactive Statute.

A pauper born in 1830 -who derived a settlement from his father in 1843, which
became fixed when such pauper became of age, had acquired a settlement
before the first day of May, 1860, and such settlement was therefore defeated
and lost by the retroactive pro\-ision of R. L., c. 80, § 6, notwithstanding
the fact that the settlement of the father came within the exception con-
tained in such statute, and was not defeated thereby.

You request my opinion upon the following statement of
facts: —

The pauper was born in Wareham, Mass., 1830; removed to Fairhaven,
Mass., in 1833, where he derived a settlement from his fa.her, who acquired
a settlement in same place in 1843. The pauper since his majority has
performed none of the acts necessary to acquire a settlement. His father
continued to reside in Fairhaven until bis death, July 6, 1874, owning and
occupying a freehold estate each j'ear since 1843. Under the provisions
of R. L., c. 80, § 6, "Any settlement which was not fully acquired sub-
sequent to the first day of ^Nlay, in the year eighteen hundred and sixty,
is hereby defeated and lost, unless such settlement prevented a subsequent
acquisition of settlement in the s^me place; ..." As the father's
settlement was saved under the exception, and that settlement acquired
when the son was a minor, does it follow that the settlement of the son,
the pauper, is not lost?

The settlement of the pauper in question, derived from his
father in 1843, became fixed when the pauper became of age
in 1851, and thereafter was unaffected by any subsequent loss
or acquisition of settlement by his father. He had, therefore, a
settlement in the town of Fairhaven, acquired before the first

I DANA MALONE, ATTORNEY-GENERAL. 85

day of May, 1860, and such settlement was clearly defeated
and lost by the retroactive provision of R. L., c. 80, § 6, — "Any
settlement which was not fully acquired subsequent to the first
day of May in the year eighteen hundred and sixty is hereby
defeated and lost, unless such settlement prevented a subse-
quent acquisition of settlement in the same place," — since
after 1851 he did nothing which would entitle him to a settle-
ment either in Fairhaven or elsewhere, and does not come,
therefore, within the exception in the above-entitled section.
The fact that the father's settlement did come within the excep-
tion and was not lost seems to me to be immaterial in respect
to the settlement of the son.

5tate Board of Health — Nuisance — Jurisdiction —
Abatement of Nuisance — Pending Complaint to
Local Board of Health and Bill of Complaint in
Superior Court.

The State Board of Health may, under the pro\-isions of R. L., c. 75, § 109, enter-
tain an application or complaint alleging that a corporation engaged in the
manufacture of cement is maintaining a nuisance upon its premises, and
may investigate the conditions attending such manufacture upon such prem-
I ises, notwithstanding that such corporation was authorized bj- the local

I authorities to engage in and carrj- on the business of manufacturing cement

at such place, and notwithstanding that a bill of complaint of the same
tenor was filed by the petitioner and is now pending before the Superior
Court, and that a like complaint has been presented to the local board of
health, upon which such board has not yet acted.

The State Board of Health requests my opinion as to its To the

• <i. . . , , , State Board

unsdiction in the matter of a complaint directed against the of Health.
Russia Cement Company of Gloucester, and a petition for the -March le.
ibatement of a nuisance alleged to exist on the premises of said
?ompany. The Russia Cement Company moved to dismiss the
:omplaint for the reason that the State Board of Health lacked
urisdiction.

It appears that the business of the Russia Cement Company
vas being conducted upon the same premises to which the cor-
Doration had been assigned by the local board of health in 1881,
ind in buildings occupied and used by the written permission of

8(i OPINIONS OF THE ATTORNEY-GENERAL.

the mayor and board of aldermen; that at the time of filing the
petition the said business was being conducted on said premises
under the regulations of and in the mode prescribed by the
local board of health, and with its approval; that on July 16,
1906, the same petitioner made a like complaint to the local
board, which complaint is now held under advisement by that
board; and that on Oct. 11, 1906, the same petitioner filed a bill
of complaint of the same tenor and effect in the Essex Superior
Court, praying for an injunction and the prohibition of said
business, and the same is now pending in said court.

The cement company objects to the jurisdiction of the State
Board of Health: —

(1) Because of the proceeding in and before the local board
of health.

(2) By reason of the proceedings in and before the Superior
Court.

The jurisdiction of the State Board of Health is under R. L.,
c. 75, § 109, which reads as follows: —

If any buildings or premises are so occupied or used, the state board
of health shall, upon application, appoint a time and place for hearing
the parties and, after due notice therefor to the party against whom the
application is made and a hearing, may, if in its judgment the public
health, comfort or convenience so require, order any person to desist
from further carrying on said trades or occupations in such building or
premises; and whoever thereinafter continues so to occupy or use such
buildings or premises shall forfeit not more than two hundred dollars for
every month of such occupancy and use, and in like proportion for a
shorter time.

The question is, therefore, whether the fact that a license has
been issued to the Russia Cement Company by the local au-
thorities, and the business of said company is conducted with
the approval and subject to the regulation of the local board of
health, and that a petition has been filed in the Superior Court
to enjoin such company from maintaining a nuisance, limits the
jurisdiction of the State Board of Health in the premises.

The power of the State Board of Health under R. L., c. 75,
§ 109, was first established in St. 1871, c. 167, which authorized

DANA MALONE, ATTORNEY-GENERAL. 87

such Board to forbid the exercise of an offensive trade in any
municipaUty of more than 4,000 inhabitants. See Sawyer v.
State Board of Health, 125 Mass. 182, 192, where the court say: —

It simply gives to the State Board of Health jurisdiction, whether
concurrent with the town boards or exclusive it is not material to this
case to inquire, in cities and large towns, to do what may be done in
every town of the Commonwealth by the local board of health.

In Cambridge v. Trelegan, 181 Mass. 565, the court state, in
speaking of the authority of the local board to forbid the carry-
ing on of a slaughter house as dangerous to the public health
after license by the proper authority : —

From its origin the policy of requiring the license mentioned has been
shown not to be exclusive of the exercise of their usual powers by boards
of health by the express grant of power to the State Board of Health to
prohibit carrying on the business of slaughtering in a building or premises
occupied for that purpose. St. 1871, c. 167, § 2; St. 1874, c. 308; Pub.
Sts., c. 80, § 93; R. L., c. 75, § 109. The court is of opinion that this
grant of power is not exclusive, and that it would be unwarranted and
anomalous to hold the license good against the local board acting under
Pub. Sts., c. 80, § 84, R. L., c. 75, § 91, when it would be no answer to
the State Board acting under what is now another section of the same
chapter of the Revised Laws. See Saunjer v. State Board of Health, 125
Mass. 182, 191, 192; Stone v. Heath, 179 Mass. 385.

In these cases it appears clear that the jurisdiction of the
State Board of Health is at least concurrent with that of local
boards of health in cities and towns of more than 5,000 in-
habitants; and the fact that the local board of health refuses
to act in the premises does not in any way affect the right of
the State Board of Health to proceed. Indeed, it may well
have been that the Legislature intended that the State Board
under just such circumstances should have the power to inter-
vene, and prohibit the carrying on of business injurious to the
public health.

I am therefore of opinion that the fact that the question con-
cerning the Russia Cement Company had been raised before the
local board of health, and that the method of business of such

OPINIONS OF THE ATTORNEY-GENERAL.

company had been approved by such board, does not affect the
present proceedings brought before the State Board of Health.
In respect to the proceedings pending before the Superior
Court, the case of Stone v. Heath, 179 Mass. 385, seems to be
conclusive. In that case the court say, in discussing action by
a local board of health (p. 389) : —

And if it be true, as alleged, that action was taken with a view to
affect proceedings in the suit pending in the Superior Court between the
plaintiffs and the water company, that also furnishes no ground for
interference with the board of health. It often happens chat the pro-
ceedings in one tribunal are affected or may be affected by action taken
by another tribunal. Such action may even be taken with that purpose
in view, so long as it is within the jurisdiction of the tribunal that acts,
and may also be at the instance of one of the parties to the proceedings
in the other tribunal.

I am of opinion, therefore, that the State Board of Health
may proceed with the investigation of the question raised by the
petition in this case, if it deems it proper to do so.

Constitutional Law — Acceptance of Statute — Approval
BY Majority of Qualified Voters of Commonwealth.

So much of Senate Bill No. 9, entitled "An Act to fix the punishment for the crime
of murder," as purports to provide that such act shall take effect when ap-
proved by a majority of the voters of the Commonwealth, is unconstitutional.

mttt^S'the ^ hsi\e your letter in which you say that the joint judiciary
"^"igo?^"^^' committee ask my opinion as to the constitutionality of section
^IHII- 5 of Senate Bill No. 9. The title of that bill is, "An Act to fix

the punishment for the crime of murder." Said section 5 reads

as follows : —

This act shall take effect when approved by a majority of the qualified
voters of the Commonwealth at the next annual state election.

In the Opinion of the Justices, 160 Mass. 586, our Supreme
Judicial Court has said that there is nothing in our Constitution
which would lead one to think that the people desired that any

DANA MALONE, ATTORNEY-GENERAL. 89

law should ever be submitted to them for approval or rejection;
that by the Constitution the Senate and the House of Repre-
sentatives have been made the legislative department of the
government.

Apparently it was thought that the persons selected for the executive,
egislaUve and judicial offices in the manner prescribed in the Constitution
vould be men of good character and intelhgence, of some experience in
iffairs and of some independence of judgment, and would have a better
)pportunity of obtaining information, taking part in discussion and care-
ully considering conflicting opinions, than ^he people themselves; and
he people therefore put the responsibility of carrying on the government
ipon their representatives.

The question under consideration was an act granting to
vomen the right to vote in town and city elections. The act
)rovided that it should take effect throughout the Common-
vealth on its acceptance by a majority vote of the voters of the
vhole Commonwealth.

The question was further considered in the case of Brodbine
7. Revere, 182 Mass. 600; and the court, speaking by Chief
lustice Knowlton, said: —

It is well established in this Commonwealth and elsewhere that the
LiBgislature cannot delegate the general power to make laws, conferred
ipon it by a Constitution hke that of Massachusetts. This doctrine is
leld by the courts almost universally.

These decisions seem conclusive, and I am therefore of
)pinion that it would be unconstitutional to provide that said
ict shall take effect when approved by a majority of the voters
)f the Commonw^ealth.

90 OPINIONS OF THE ATTORNEY-GENERAL.

Massachusetts State Sanatorium — Application — Pref-
erence OF Citizens.

Under the provision of St. 1907, c. 222, § 1, that "preference shall be given to
those applicants who are citizens of the Commonwealth," the trustees of
the Massachusetts State Sanatorium are authorized to give precedence in
cases of tuberculosis: first, to incipient cases of citizens; second, to ad-
vanced cases of citizens; third, to incipient cases where the applicants are
not citizens; and fourth, to advanced cases where the applicants are not
citizens.

TotheTrus- J h&ve vour letter of the 4th, in which you say that the

tees of Massa- -^

sanftorlu^nf'' trustces of the Massachusetts State Sanatorium desire to ask
AprTii. my opinion on the effect of chapter 222 of the Statutes of 1907,

section 1 of which is as follows: —

In the admission of persons to the Massachusetts state sanatorium
preference shall be given to those apphcants who are citizens of the
Commonwealth.

You say that the State Sanatorium was established by St.
1895, c. 503, under the name of Massachusetts Hospital for
Consumptives and Tubercular Patients; that the name was
changed to Massachusetts State Sanatorium by St. 1900, c. 192;
that there is no provision of law which defines the objects of
the institution or the admission of patients; that cases of tuber-
culosis are divided by the medical profession into three classes,
according to the progress the disease has made, — (1) incipient,
(2) advanced and (3) far advanced; and that the trustees have
for the past ten years admitted only persons who after medical
examination were pronounced to be in the incipient stages of
tuberculosis, believing that in so doing they were best carrying
out the object of the institution, but that whenever there were
not sufficient incipient cases to fill the institution, moderately
advanced cases were accepted, and that incurable cases are not
accepted. You say there are not sufficient applications from
incipient cases to fill the sanatorium, and moderately advanced
cases are frequently admitted, but only when their admission
does not result in preventing the admission of incipient cases.

You ask whether chapter 222 of the Acts of 1907 compels

DANA MALONE, ATTORNEY-GENERAL. 91

rou to admit persons in the moderately advanced or incurable
tages of tuberculosis who are citizens of Massachusetts, in pref-
■rence to applicants in the incipient stages of tuberculosis who
ire residents but not citizens.
I think the law as it stands to-day authorizes you to admit

1) incipient cases where the persons are citizens, (2) advanced
ases where the persons are citizens, and preference must be
;iven to these two. I see no objection to your making a rule
hat you will not admit far advanced cases. If you should do
hat, you can then, after having provided for the incipient and
dvanced cases where the applicants are citizens, admit, first,
neipient cases where the applicants are not citizens, and then
.dvanced cases where the applicants are not citizens.

In other words, my conclusion is that you would be war-
anted in giving preference (1) to incipient cases of citizens,

2) to advanced cases of citizens, (3) incipient cases where the
,pplicants are not citizens, and (4) advanced cases where the
-pplicants are not citizens.

Bounty Commissioners of Bristol County — Compensation
FOR Services as Members of Joint Board.

'he Governor and Council may not provide compensation for the county commis-
sioners of the county of Bristol for services as members of the joint board
created by St. 1903, c. 462, to locate and construct a new drawbridge over
Great Taunton River, and consisting of the Board of Railroad Commis-
sioners, the Board of Harbor and Land Commissioners, and the county commis-
sioners of the county of Bristol.

My opinion is asked orally by Your Excellency as to whether To the

* "^ " . Governor.

r not the Governor and Council may provide compensation i907
or the county commissioners of the county of Bristol for their
ervices as members of the joint board created by chapter 462
f the Acts of 1903, to locate and construct a new drawbridge
ver Great Taunton River, between the city of Fall River and
he town of Somerset.
Section 1 of this chapter provides that: —

The board of raih-oad commissioners, the board of harbor and land
omniissioners and the county commissioners of the county of Bristol,

92 OPINIONS OF THE ATTORNEY-GENERAL.

who are constituted a joint board to act by a majority vote of all the
members, are hereby authorized and directed to locate and construct
a new drawbridge between the city of Fall River and the town of Somer-
set, over Taunton Great river . . .

Section 5 provides for the appointment of a special com-
mission to estimate and determine the towns, cities and corpo-
rations to be assessed for the cost of constructing and maintain-
ing the bridge.

Section 6 provides that : —

. The members of the boai'd of railroad commissioners, the board
of harbor and land commissioners and the special commission appointed
under this act shall receive such compensation as the governor and council
shall approve, the same to be paid by the county of Bristol. . . .

I am of opinion that the Governor and Council have no
authority under the act in question to approve or vote any
compensation to the county commissioners of Bristol County.
The words "special commission" do not in my opinion indi-
cate the whole of the joint commission, but refer to the special
commissioners to be appointed under section 5.

Registered Pharmacist — Conduct of Business — Attend-
ance OF Registered Pharmacist.

R. L., c. 76, § 23, requires that an unregistered member of a copartnership engaged
in the business of pharmacy, who compounds for sale or dispenses for medi-
cinal purposes drugs, medicines, chemicals or poisons, shall do so only under
the personal supervision of a registered pharmacist.

Jf^Regis^ratYon ^J' ^'^^^^ commuuication of March 28 you seek my opinion
in Pharmacy, ^p^^^ ^^xe qucstiou whcthcr, under R. L., c. 76, § 23, it is neces-
■^^' sary "for a registered pharmacist to be in attendance at all

times in a drug store while conducting the business of a phar-
macist." The section referred to is as follows: —

The provisions of sections twenty-one to twenty-nine, inclusive, of
chapter one hundred, section twenty-six of chapter seventy-five and
section two of chapter two hundred and thirteen shall not apply to physi-
cians who put up their own prescriptions or dispense medicines to their

DANA MALONE, ATTORNEY-GENERAL. 93

■atients; nor to the sale of di'ugs, medicines, chemicals or poisons at
wholesale only; nor to the manufacture or sale of patent and proprietary
ledicines; nor to the sale of non-poisonous domestic remedies usually
old by grocers and others; nor shall any unregistered member of a
opartnership be hable to the penalties hereof if he retails, compounds for
lie or dispenses for medicinal purposes drugs, medicines, chemicals or
oisons only under the personal supervision of a registered pharmacist,
'he widow, executor or administrator of a registered pharmacist who has
ied or the wife of one who has become incapacitated may continue his
usiness under a registered pharmacist.

In reply I beg to advise you that the statute clearly requires
bat an unregistered member of a copartnership who compounds
)r sale or dispenses for medicinal purposes drugs, medicines,
hemicals or poisons shall do so only under the personal super-
ision of a registered pharmacist, and such supervision can exist
nly when a registered pharmacist is present.

,ABOR — Eight-hour Law — Domestic Servants — Holidays.

nder St. 1907, c. 269, amending St. 1906, c. 517, and providing that no laborer,
workman or mechanic emploj^ed by or on behalf of the Commonwealth or
of any county therein or in any city or town which has accepted the pro-
visions of R. L., c. 106, § 20, "shall be requested or required to work more
than eight hours in any one calendar day or more than forty-eight hours
in any one week, except in cases of extraordinary emergency," cooks, maids,
I or other domestic servants may not be requested or required to work more

than eight hours in any one calendar day or more than forty-eight hours in
any one week, except in cases of extraordinary emergency.

lO workman, laborer or mechanic so employed may be requested to work more
than eight hours in any one calendar day, except in cases where a Saturday
half-holiday is given, in which case the hours of labor on other working days
may be increased to make a total of forty-eight hours for the week's work.

mployees may arrange between themselves to substitute for each other in pro-
viding for vacation periods; but they may not be requested or required so
to do by their employers if it results that such arrangement involves more
than eight hours' work by any of the parties in any one day.

''^here an employee at a State insane hospital, as a precautionary measure, is
required to remain and to sleep in a room adjoining the room of a patient
or a dormitory, the time of sleep is not to be considered as time on duty.

I have your letter of the 25th, in which you ask my opinion To the super-
intendent of

pon certain questions relative to the so-called eight-hour law, ^^^^^^^^f ^^i
eing chapter 269 of the Acts of 1907, section 1 of \vhich reads j^^^^'^^e.
s follows: —

94 OPINIONS OF THE ATTORNEY-GENERAL.

Section one of chapter five hundred and seventeen of the acts of the
year nineteen hundred and six is hereby amended by inserting after the
word "laws," in the sixth hne, the following: — No laborer, workman or
mechanic so employed shall he requested or required to work more than
eight hours in any one calendar day or more than forty-eight hours in any
one week except in cases of extraordinary emergency. Only a case of
danger to property, to life, to pubMc safety, or to public health shall be
considered a case of extraordinary emergency within the meaning of this
section. Engineers shall be considered mechanics within the meaning
of this act, — and by adding at the end of the section the following: —
Threat of loss of employment or threat to obstruct or prevent the obtain-
ing of employment, or threat to refrain from employing in the future shall
be considered requiring within the meaning of this section, — so that the
section as amended will read as f ollovrs : — ■ Section 1 . Eight hours shall
constitute a day's work for all laborers, workmen and mechanics now or
hereafter employed by or on behalf of the Commonwealth, or of any
county therein, or of any city or town which has accepted the provisions
of section twenty of chapter one hundred and six of the Revised Laws.
No laborer, workman or mechanic so employed shall be requested or
required to work more than eight hours in any one calendar day or more
than forty-eight hours in any one week except in cases of extraordinary
emergency. Only danger to property, to life, to public safetj' or to public
health shall be considered cases of extraordinary emergency within the
meaning of this section. Engineers shall be considered mechanics witliin
the meaning of this act. But in cases where a Saturday half -holiday is
given the hours of labor upon the other working days of the week may be
increased sufficiently to make a total of forty-eight hours for the week's
work. Threat of loss of employment or threat to obstruct or prevent the
obtaining of employment, or threat to refrain from employing in the
future shall be considered requiring within the meaning of this section.

You ask: "Is it permissible to employ domestics on the
hourly basis?"

By domestics I assume that you mean house servants, both
men and women; and I am of opinion that neither men nor
women can be requested or required to work more than eight
hours in any one calendar day, nor more than forty-eight
hours in any one week, except in cases of extraordinary emer-
gency.

2. "i\Iay employees work overtime on other days, to make
up for a holiday on any other day than Saturday?"

DANA MALONE, ATTORNEY-GENERAL. 95

They cannot be requested or required to work more than
'ight hours in any one calendar day except in cases where a
Saturday half-holiday is given, in which case the hours of labor
ipon the other working days of the week may be increased
ufficiently to make a total of forty-eight hours for the week's
vork.

3. "Are cooks, maids and other domestics included under the
ight-hour law?"

I am of opinion that they are so included. R. L., c. 8, § 4,
1. 4, provides: "Words importing the masculine gender may be
pplied to females." The Supreme Court of the United States,
n the case of Silver v. Ladd, 7 Wall. 219, held that the words
single man" and "married man," in construing a benevolent
tatute of the government made for the benefit of its own citi-
ens, must be taken in the generic sense; and that an act of
Congress, granting by way of donation land in Oregon Territory
0 every white settler or occupant, embraced within the term
'single man" an unmarried woman. I have no reason to think
he Legislature intended to discriminate between men and wo-
nen doing the same work, by providing that a man should not
)e required to work more than eight hours, while a woman
night be required to work much longer.

4. "May employees arrange between themselves to substitute
or each other, thus exchanging time off duty, — as, for in-
tance, in arranging for a vacation of two weeks?"

There is no reason why they may not do so by mutual agree-
Qent; but they should not be requested or required to work
fiore than eight hours in any one day by their employer.

5. "If an employee, as a precaution in case of fire or other
mergency, is required to remain in a room adjoining a patient's
oom or dormitory, this employee being allowed and expected
0 go to bed and go to sleep, is this time of sleep to be con-
idered as time on duty?"

No. It is no more a requirement than if you requested your
mployees to sleep in any particular building upon the premises
f the hospital.

OC)

OPINIONS OF THE ATTOKNEY-GENERAL.

To the
Board of
Metropolitan
Park Com-
missioners.

1907
May 10.

Board of Metropolitan Park Commissioners — Rules and
Regulations — Roadways — Violation of Rules and
Regulations — Arrest — Warrant.

The authority of the Metropolitan Park Commission, under St. 1893, c. 407, § 4,
and St. 1894, c. 288, § 3, to make rules and reg\ilations for the government
and use of open spaces, lands, rights and easements or interests in land, is
the same whether such lands or rights, easements or interetts in land to
which such rules are applicable were acquired and are controlled by such
commission under St. 1893, c. 407, § 6, or St. 1896, c. 465, § 2.

The term "roadways," as used in St. 1894, c. 288, § 3, includes roadways under
the care of the Metropolitan Park Commission, constructed upon lands ac-
quired under St. 1893, c. 407, §§ 4 and 6.

A police officer appointed by the Metropolitan Park Commission may arrest with-
out warrant any person who violates in his presence any rule or regulation
duly made by such commission by authority of St. 1894, c. 288; and may
arrest without warrant any person who violates in his presence any rule or
regulation duly made by such commission by authority of St. 1903, c. 407,
whenever such violation involves acts which are in fact breaches of the pub-
lic peace.

By a communication dated April 10, 1907, your Board
inquires: —

1 . Whether or not the commission has authority to make rules
and regulations for the government and use of open spaces, lands,
rights, easements or interests in lands transferred to its care and
control under either St. 1893, c. 407, § 6, or St. 1896, c. 465, § 2.

2. Whether or not the term "roadways," referred to in St.
1894, c. 288, § 3, includes roadways under the care of the com-
mission, constructed upon lands acquired under St. 1893, c. 407,
§§ 4 and 6.

3. Whether or not a police officer appointed by the commis-
sion may arrest without warrant a person committing in his
presence a violation of a rule enacted under either St. 1893,
c. 407, § 4, or St. 1894, c. 288, § 3.

The open spaces, lands, rights, easements or interests in lands
referred to in the first inquiry are those transferred to the care
and control of the Metropolitan Park Commission under the
following statutes : —

St. 1893, c. 407, § 6:— I

Any city or town within said district, or any local board of such city
or town, with the latter's consent, is hereby authorized and empowered

DANA MALONE, ATTORNEY-GENERAL. 97

> transfer the care and control of any open space owned or controlled
r it to the metropoUtan park commission, upon such terms and for such
iriod as may be mutually agreed upon; or to enter into an agreement
th said commission for the joint care and preservation of open spaces
thin or adjacent to such city or town; and the metropolitan park
mmission may in like manner transfer the care and control of any open
ace controlled by it to any local board of a city or town within the said
strict, with the consent of such city or town and upon such terms and
• such period as may be mutually agreed upon.

St. 1896, c. 465, § 2: —

Said commission is hereby authorized and empowered to transfer for
re and control, including police protection, any lands or rights or ease-
snts or interest in land, although the same be a roadway or boulevard
ned or controlled by it, to any citj^ town or county, or local board of a
7 or town within the metropohtan parks district, with the consent of
•h city, town, county or board, and upon such terms and for such period
may be mutually agreed upon, and to enter into an agreement with
y such city, town or county or board for the joint care and control or
lice protection of said land or boulevard, and also for laying out, con-
i acting and maintaining streets or ways into or across any such land

< boulevard; and any city, town or county, or any local board within
metropoUtan parks district, is hereby authorized and empowered to

• .nsfer for care and control, including pohce protection, any land, rights,

< lements or interest in land in its control, although the same be already
i )art of a public street owned or controlled by it, to the metropoUtan
1 "k commission for such period and upon such terms as may be mutually
i eed upon, and to enter into an agreement with said commission for the
X it care and control, including poUce protection, of said land or street.

The powers of the commission in the premises were first de-
f ed in St. 1893, c. 407, § 4, which provided that: —

5aid board shaU have power to acquire, maintain and make available
tthe inhabitants of said district open spaces for exercise and recreation;
a I to this end, acting so far as may be in consultation with the proper
1' al boards, shall be authorized to take, in fee or otherwise, in the name
al for the benefit of the Commonwealth, by purchase, gift, devise or
e inent domain, lands and rights in land for public open spaces within
s: I district, or to take bonds for the conveyance thereof; . . .

n furtherance of the powers herein granted, said board may employ
Suitable police force, make rules and regulations for the government
a I use of the public reservations under their care, and for breaches

98 OPINIONS OF THE ATTORNEY-GENERAL.

thereof affix penalties not exceeding twenty dollars for one offence, to be
imposed by any court of competent jurisdiction; and in general may do
all acts needful for the proper execution of the powers and duties granted
to and imposed upon said board by the terms of this act. . . .

St. 1894, c. 288, the so-called "boulevard act," provided in
section 1 that the Board of Metropolitan Park Commissioners
might connect any road, park, way or other public open space
with any part of the cities or towns of the metropolitan parks
district under its jurisdiction, by a suitable roadway or boule-
vard; and such commission was given for this purpose authority
to exercise any of the rights and powers granted to it by the
earlier act, in the manner therein prescribed, as well as the
power to take or acquire, in fee or otherwise, by purchase, gift,
devise or eminent domain, lands or rights or easements or in-
terest in land within the metropolitan parks district, although
the land so taken or any part of it w^as already a street or way.
Section 3 is in part as follows: —

In furtherance of the powers herein granted said board may appoint
clerks, police and such other emploj'^ees as it may from time to time find
necessary for the purposes of this act, remove the same at pleasure, and
make rules and regulations for the government and use of the roadways
or boulevards under its care, breaches whereof shall be breaches of the
peace, punishable as such in any court, having jurisdiction of the same;
and in addition said board shall have the same rights and powers overi
and in regard to the roadways or boulevards taken and constructed
hereunder as are or may be vested in them in regard to other open spaces
by said chapter four hundred and seven and acts in amendment thereof
and in addition thereto, and shall also have such rights and powers in
regard to the same as, in general, counties, cities and towns have ovei
public ways under their control.

In an opinion by Attorney-General Parker, dated Aug. 21,^
1903 (2 Op. Atty.-Gen. 454), relating to the police jurisdictioi
of the Metropolitan Park Commission, it is said : —

It follows, therefore, that the authority of the Metropolitan Park Com-
mission with regard to police regulation of pubhc open spaces does nol
<liffer from that which they have over parkways and boulevards as defined
in the opinion of last year already referred to. (See 2 Op. Atty.-Gen. 363.]

DANA MALONE, ATTORNEY-GENERAL. 99

St. 1894, c. 288, did not contain any provision by which a
city or town Avithin the district was empowered to transfer to
the Metropolitan Park Commission open spaces within the con-
trol or ownership of such city or town, or to enter into joint
agreements for the care or preservation of open spaces, or by
which the commission might transfer the care and control of
open spaces to any local board of a city or town, as appears in
St. 1893, c. 407, § 6, above quoted. This omission was sup-
plied in St. 1896, c. 465, entitled "An Act to better define
the authority of the Metropolitan Park Commission." This
statute, in section 1, deals exclusively with roadways or boule-
v^ards (see 1 Op. Atty.-Gen. 588, 593); and in my opinion is
to be construed to be supplementary to St. 1894, c. 288. Sec-
tion 2 of chapter 465 of the Acts of 1896 is hereinbefore quoted.

I am of opinion that, so far as the power and authority of the
Metropolitan Park Commission to make rules and regulations
:'or the government of public open spaces, roadways or boule-
vards is involved, it is the same whether the lands or rights,
casements or interest in land, to which such rules are appli-
mble, were acquired by the Board and are controlled by it
inder St. 1893, c. 407, § 6, or St. 1896, c. 465, § 2; and that
5uch authority is defined in St. 1893, c. 407, § 4, and St. 1894,
:. 288, § 3. (See 2 Op. Atty.-Gen. 454.)

The second inquiry deals with the term "roadways," as used
n St. 1894, c. 288, § 3; and the substance of the inquiry is
;vhether or not roadways constructed by the Metropolitan Park
Commission upon lands acquired and held as open spaces, under
:he provisions of St. 1893, c. 407, are to be considered as park-
vays, roadways or boulevards constructed under the provisions
)f St. 1894, c. 288.

I am of opinion that they are to be so considered. It has
ilready been decided that the commission may expend the
noney appropriated under the "boulevard act," so called (St.
1894, c. 288), in constructing a roadway over land already ac-
luired by such board under St. 1893, c. 407, if the purpose of
iuch connection is to connect a road, park, way or other public
)pen space within any part of the cities or towns of the metro-

100 OPINIONS OF THE ATTORNEY-GENERAL.

politan parks district under the jurisdiction of the commission
(2 Op. Atty-Gen. 567); and a consideration of the provisions
of St. 1894, c. 288, appears to warrant a conclusion that it was
contemplated by the Legislature that the commission should
under such statute be authorized to construct parkways or
boulevards across existing parks or open spaces under its control.
This is forcibly shown by striking out of section 1 of such act
such words and phrases as do not directly bear upon the present
question, so that it reads as follows : —

The board of metropolitan park commissioners, constituted under the
authority of chapter four hunched and seven of the acts of the year eighteen
hundred and ninety-three is hereby authorized to take . . . any lands
. . . although the lands so taken ... be already a street or way, and
to construct and maintain . . . over the same or any other land acquired
bj' said board bj'' said act a suitable roadway or boulevard.

The word "same" in the above extract obviously refers to
lands taken under the provisions of St. 1894, c. 288; while the
words "or any other land acquired by said board by said act"
as obviously refer to lands taken or acquired by the commission
under the provisions of St. 1893, c. 407. (See words "said
act," in eighth line of St. 1894, c. 288, § 1.)

It follows, therefore, in my opinion, that the Board is ex-
pressly authorized to construct, under the provisions of St. 1894,
c. 288, roadways across public reservations or open spaces taken
or acquired by it under the provisions of St. 1893, c. 407, and
may make rules and regulations for the government and control
of such roadways, under the provisions of the former statute,
the so-called "boulevard act;" or, in other words, that St. 1894,
c. 288, § 3, providing that the commission may " make rules and
regulations for the government and use of a roadway or boule-
vard under its care, breaches whereof shall be breaches of the
peace," is applicable as well to such roadways as to parkways or
boulevards which connect with but do not cross the open spaces
or reservations established under the "park act," so called.

The remaining question is, whether or not a police officer ap-
pointed by the commission may arrest without warrant any per-

DANA MALONE, ATTORNEY-GENERAL. 101

son who violates in his presence a rule or regulation duly made
by the commission under either the "park act" or the "boule-
vard act."

The powers and duties of the metropolitan park police are
defined in St. 1897, c. 121, § 3, as follows: —

The police appointed or employed by said commission, in accordance
with the provisions of chapter fom- hundred and seven of the acts of the
year eighteen hundred and ninety-three and chapter two hundred and
eighty-eight of the acts of the year eighteen hundred and ninety-four and
all acts in amendment thereof and in addition thereto, shall have within the
metropoUtan parks district all the powers of poUce officers and constables
of cities and towns of this Commonwealth, except the power of serving
and executing civil process, and when on duty may carry such weapons
as said commission shall authorize.

The power of police officers and constables to arrest w^ithout
warrant any person committing in their presence a breach of the
peace, and to hold such person until he can be brought before a
magistrate, has long been recognized.

It has often been held that constables, as conservators of the peace,
have power to arrest, upon view, persons violating the laws, and detain
them until they can be brought before a magistrate. (Shaw, C.J., in
. Commonwealth v. Hastings, 9 Met. 259, 262.)

And see Commoimealth v. Tohin, 108 Mass. 426, 429; Parker
v. Barnard, 135 Mass. 116, 117.

And the common law authority of such officers has been much
broadened by statute. So it is provided in R. L., c. 31, § 2,
that : —

The watch shall suppress and prevent all disturbances and disorders.
During the night time, they may examine all persons abroad whom they
have reason to suspect of an unlawful design, and may demand of them
their business abroad and whither they are going; may disperse any
assembly of three or more such persons; and may enter any building to
suppress a riot or breach of the peace therein. Persons so suspected who
do not give a satisfactory account of themselves, persons so assembled
and who do not disperse when ordered, and persons making, aiding or
abetting in a riot or disturbance, may be arrested by the watch, and shall

102 OPINIONS OF THE ATTORNEY-GENERAL.

thereupon be safely kept, by imprisonment or otlierwise, until the next
morning and then taken before a police, district or municipal court or
trial justice to be examined and prosecuted.

And in R. L., c. 212, §36: —

Whoever is found in a state of intoxication in a public place, or is foimd
in any place in a state of intoxication committing a breach of the peace
or disturbing others by noise, may be arrested without a warrant by a
sheriff, deputy sheriff, constable, watchman or police officer, and kept in
custody in a suitable place until he has recovered from his intoxication.

In R. L., c. 212, § 47, it is provided that in the case of rogues
and vagabonds and other persons enumerated in the preceding
section, they —

may be apprehended by a sheriff, deputy sheriff, constable, police officer
or watchman, or by any other person by the order of a magistrate or any
of said officers, without a warrant and be kept in custody for not more
than twenty-four hours, Sunday or a legal holiday excepted; and at or
before the expiration of such time he shall be taken before a police, district
or municipal court or trial justice and proceeded against, as provided in
the preceding section, or discharged as such court or justice shall deter-

See also St. 1906, c. 403; R. L., c. 212, §§ 57-62, etc.

It would seem, therefore, that the metropolitan park police,
having all the powers of police officers and constables with re-
spect to offences against the law, may arrest without warrant in
case of any breach of the peace committed in their presence or
in the case of any criminal act when by statute a warrant is
dispensed with; and it remains to determine whether or not a
breach of the rules and regulations established by the Metro-
politan Park Commission is a breach of the peace within the
rule apparently established by the decisions. In the case of
rules or regulations made under the provisions of St. 1894, c.
288, no difficulty arises, for by section 3 breaches thereof are
expressly made "breaches of the peace, punishable as such in
any court having jurisdiction of the same." St. 1893, c. 407,
does not contain identical language with this section, the words

DANA MALONE, ATTORNEY-GENERAL. 103

1 that statute (section 4) being that the Metropolitan Park
ommission may "make rules and regulations for the govern-
lent and use of the public reservations under their care, and for
reaches thereof affix penalties ... to be imposed by any court
F competent jurisdiction;" and it is, of course, conceivable that
le addition of the specific declaration in the later act, that vio-
.tions of the rules and regulations relating to parkways and
oulevards shall be breaches of the peace, was intended to
•eate a distinction between the rules relating to reservations
ad public open spaces, and those applicable to parkways and
aulevards; even if this be so, however, the distinction is not of
■eat importance, for, so far as the violations of rules estab-
shed under St. 1893, c. 407, § 4, do in fact constitute disturb-
ices of the public peace upon such reservations or open spaces,
ley may be so treated, and the offender may be arrested with-
it warrant, the officer in such case acting by authority in-
erent in his office. See Commonwealth v. Tobin, 108 Mass.
26, 429. And this class of oft'ences must include by far the
,rger number of the cases in which the officer is called upon to

2t.

Replying directly to the question as submitted, therefore, I
m of opinion that a police officer appointed by the commission
lay arrest without warrant any person who violates in his
resence any rule or regulation duly made by the commission by
uthority of St. 1894, c. 288, the so-called "boulevard act," and
lay arrest without warrant any person who violates in his pres-
nce any rule or regulation duly made by the commission by
uthority of St. 1893, c. 407, the so-called "park act," when-
e'er such violation involves acts which are in fact breaches of
le public peace.

104 opinions of the attorney-general.

Treasurer and Receiver-General — Bonds of Common-
wealth — Issue — Transfer to Executor or Adminis-
trator.

The Treasurer and Receiver-General, under R. L., c. 6, § 74, which pro\-ides "that
the treasurer may . . . issue in substitution for mutilated, defaced or
indorsed bonds presented to him other bonds of like or equivalent issues,"
may, at the request of an executor or administrator, transfer to such execu-
tor or administrator in his individual capacity bonds issued by the Com-
monwealth to a decedent or to the executor or administrator of a decedent,
pro\-ided that in the case of an executor there is nothing in the will restrict-
ing his general authority in the premises.

TreM^er You Fcquest my opinion as to whether you may, at the re-

G^ele^.^"" quest of an executor or administrator, transfer bonds issued by

May 23. the Commouwealth to such executor or administrator in his

individual capacit5^ I assume that your question appHes to

bonds registered in the name of the decedent as well as to those

registered in the name of an executor or administrator as such.

Your authority to transfer bonds is derived from section 74

of chapter 6 of the Revised Laws, which provides that : —

The treasurer may . . . issue in substitution for mutilated, defaced
or indorsed bonds presented to him other bonds of like or equivalent
issues.

There can be no doubt that in the case of bonds registered m
the name of a deceased person, or of, an executor or admin-
istrator as such, that the executor or administrator is the proper
person to endorse them. You may, therefore, in the ordinary
case legally register bonds so endorsed in the name of the trans-
feree, upon satisfying yourself that the endorser is the executor
or administrator. In my opinion, your duties in this regard are
analogous to those of corporations with respect to the transfer
of their corporate shares. It has been held that a corporation
must be presumed to know what are the legal powers of an exec-
utor, but not the particular provisions of any will; nor is it re-
quired to determine whether or not the executor is acting
properly. Hutchins v. State Bank, 12 Met. 421 (423). When a
transfer of its stock is presented to a corporation, it is bound at
its peril to see that it is a genuine transfer by one who has

DANA M ALONE, ATTORNEY-GENERAL. 105

power of disposition over the stock; but when a transfer by one
who has the full power to transfer it is presented, the corpora-
tion has the right to act upon it, and it is not its duty to in-
:[mTe into the purposes of the parties or to investigate the ques-
don whether that transaction is in good faith or is fraudulent.
docker v. Old Colony R.R. Co., 137 Mass. 417.

In the case of an executor I think it would be wise, although
lot absolutely necessary, to satisfy yourself that there is noth-
ng in the will restricting his general authority as executor. In
he absence of any such restriction upon the authority of an
jxecutor, and in any case without investigating the authority of
m administrator, you may properly transfer bonds duly en-
lorsed, without regard to the person to w'hom the endorsement
uns.

Civil Service — Vendor of Intoxicating Liquors —

Agents.

^he words, "vendor of intoxicating liquors," as used in R. L., c. 19, § 16, relating
to the civil service, which provides in part that "no vendor of intoxicating
liquors shall be appointed to or retained in any office, appointment or em-
ployment to which the provisions of this chapter apply," are applicable to
one who either as principal or agent sells intoxicating liquor, and would
include persons who drive about among the customers of their employers and
deliver intoxicating liquors and collect money from such customers, and who
make sales upon their routes, as well as persons who are employed as bar-
tenders.

You request me to define the words "vendor of intoxicating xothe

,, ,. . -.r>pi -I r\ p ^ -n> • 1 Civil Service

iquors, as used in section 16 oi chapter 19 or the Revised Commission,
^aws, relating to the civil service. That section is as follows: — May^.

No person habitually using intoxicating liquors to e.xcess and no vendor
f intoxicating liquors shall be appointed to or retained in any office,
ppointment or employment to which the provisions of this chapter apply.

The only real question as to the meaning of the word as used
1 this statute is whether or not it includes an agent as well as a
rincipal. A vendor is "the seller; one who disposes of a thing
1 consideration of money." (Bouvier's Law Dictionary.) The
endor of land, as distinguished from the grantor, is he who

I0() OPINIONS OF THE ATTORNEY-GENERAL.

negotiates the sale and becomes the recipient of the considera-
tion, though the title comes to the vendee from another source
and not from the vendor, Rutland v. Brister, 53 Miss. 683, 685.
Thus, one who contracts to sell land which he does not own is a
vendor. Of course the vendor is not in such case necessarily
the agent of the grantor. The important thing is, however,
that the vendor sells that to which he has no title.

An early draft of the civil service bill used the words " person
who holds a license for the sale," instead of the word "vendor."
The bill as enacted contained the word "vendor," as at present.
This clearly indicates an intention on the part of the Legislature
to enlarge the restriction, and I am of opinion that the restric-
tion so enlarged includes agents for the sale of intoxicating
liquor, as well as principals.

A vendor of intoxicating liquor would be, therefore, one who,
either as principal or agent, sells intoxicating liquor. Persons,
therefore, who in driving around among the customers of their
employers and delivering beer, ale or other intoxicating liquors,
collect money from these customers to whom the goods have
been sold, and also sell to any on their routes who may wish to
be supplied, and collect money on such sales, also persons who
are employed as bartenders but who are not owners of liquor
businesses, are, in my opinion, vendors of intoxicating liquors
within the meaning of section 16 of chapter 19 of the Revised
Laws.

Clerks of Courts — Fees for Naturalization — County

Accounts.

Clerks of courts having jurisdiction to naturalize aliens as citizens of the United
States, under the act of Congress of June 29, 1906, are not entitled to re-
tain for their own use one-half of the naturalization fees received by them
under such act, and all such fees should be paid over to the treasurer of the
county for which such court is constituted.

Controller ^'^u ask my opinion as to whether clerks of courts can retain

AcSii'ts' ^or their own use and benefit one-half of the naturalization fees
May 24. undcr the naturalization law of the United States and the laws

of this Commonwealth.

DANA MALONE, ATTORNEY-GENERAL. 107

R. L., c. 165, § 37, provides: —

The annual salaries of clerks (of courts) shall be in full compensation
or all services rendered by them in the civil or criminal courts, to the
;ounty commissioners, in making any returns required by law or in the
)erformance of any other official duty except for such clerical assistance
IS may be allowed under the provisions of the following section.

Section 31 of said chapter is as follows: —

The clerks of the courts in the several counties, and of the supreme
udicial court and the superior court in the county of Suffolk, shall keep
. cash book, which shall be county property and shall be and remain a
)art of the records of the courts, in which they shall keep accounts of all
ees received by them for their official acts and services, including fees
or copies which they are not required by law to furnish, fees and money
n proceedings relative to naturalization or for naturalization certificates,
,nd all fees and money of whatever description or character received by
hem, or by any assistant or other person in their offices or employment,
or any acts done or services rendered in connection with their said
iffices, and shall on or before the tenth day of each month pay over to
he treasurer of the county, or to such other officer as is entitled to
eceive them, all fees received during the preceding calendar month, and
hall render to him an account thereof under oath.

The United States Naturalization Act of June 29, 1906 (34
J. S. St. at Large, 596), provided in section 3 as follows: —

That exclusive jurisdiction to naturahze afiens as citizens of the United
itates is hereby conferred upon the following specified courts: United
States Circuit and District Courts now existing . . . ; also all courts
'f record in any state or territory now existing, or which may hereafter
•e created, having a seal, a clerk, and jurisdiction in actions at law or
quity, or law and equity, in which the amount in controversy is unlimited.

It is further provided in section 13 of said act, as follows: —

That the clerk of each and every court exercising jurisdiction in natural i-
' ation cases shall charge, collect, and account for the following fees in
ach proceeding: . . . The clerk of any court collecting such fees is
ereby authorized to retain one half of the naturalization fees collected
[•y him in such naturahzation proceeding; the remaining one half of the
aturafization fees in each case collected by such clerks, respectively, shall
e accounted for in their quarterly accounts which they are hereby required

108 OPINIONS OF THE ATTORNEY-GENERAL.

to render the Bureau of Immigration and Naturalization, and paid ovei
to such bureau within thirty days from the close of each quarter in each
and every fiscal yeai- ... In addition to the fees herein required, the
petitioner shall deposit with and pay to the clerk of the court a sum ol
money . . . ; provided that the clerks of courts exercising jurisdictioc
in naturalization proceedings shall be permitted to retain one half of the
fees in any fiscal year up to the sum of three thousand dollars.

You inquire: —

1. Have the clerks of courts heretofore referred to the right tc
retain for their own use one-half the naturalization fees receivec
by them under the naturalization laws of the United States?

2. If they have not such right, to whom should said one-hali
be paid by said clerks?

You will observe that section 37 of chapter 165 of the Revisec I
Laws provides that salaries of clerks shall be in full compensa
tion for all services rendered by them in the civil or crimina
courts; and that section 31 of said chapter provides that the
clerks of courts in the several counties shall keep a cash booli
in which they shall keep accounts of all fees received by then
for their official acts and services, including fees and money u
proceedings relative to naturalization or for naturalization cer
tificates, and all fees and money of whatever description or char
acter received by them, etc., and shall on or before the tentt
day of each month pay over to the treasury of the county al
fees received during the preceding calendar month, and shal
render to him an account thereof under oath.

It seems to me clear, therefore, that the clerks of courts can-
not retain for their own use one-half of said naturalization fees
received by them under the naturalization laws of the United
States, as their duties and powers are prescribed by the laws
of this Commonwealth, and they perform the duties required by
the United States naturalization act by virtue of their oflSces as
clerks of courts of this Commonwealth and not through ap-
pointment by the United States, and our law specially requires
that all naturalization fees be paid over to the treasurer of the
county.^

1 But see County of Hampden, 207 Mass. 167.

DANA MALONE, ATTORNEY-GENERAL. 109

ONSTITUTIONAL LaW — CiTIES AND ToWNS — HARVEST AND

Sale of Ice — Taxation.

proposed bill, entitled "An Act to authorize the city of Holyoke to harvest and
sell ice at wholesale," which in part provides for the raising of money by tax-
ation to directly defray the cost of the carrying on by such city of the business
of harvesting and selling ice, or for the repayment of loans made for such
purpose, is unconstitutional, as authorizing the raising of money by taxation
for a purpose not public in its nature.

You request my opinion as to the constitutionality of a bill q^^^^^^^,^
bich has passed the Senate and the House of Representa- jy^e'ig
v^es, entitled "An Act to authorize the city of Holyoke to
irvest and sell ice at wholesale." This bill authorizes the
ty of Holyoke to " cut and harvest ice from any great pond or
/er in its limits and from any ponds or reservoirs used by the
unicipality as a water supply, and to store and sell the same

wholesale to the inhabitants of the city." It authorizes the
king of land or easements and the raising of money by taxa-
)n or by loan for the purpose of carrying out its provisions.
The principal question raised by your inquiry is whether or
•t the cutting and harvesting of ice and the storing and sale

the same at wholesale to the inhabitants of a municipality is
public purpose, for which money may be raised by taxation.
16 precise question has not been passed upon by our courts,
•r, so far as I can discover, by the courts of any other State.
' le justices of the Supreme Judicial Court, however, have been
lied upon to pass upon analogous questions. In the Opinion

the Justices, reported in 150 Mass. 592, the justices advised
e House of Representatives that under the Constitution the
;gislature has power to authorize cities and towns to manu-
: sture and distribute gas or electric light for use in their public
i'eets and buildings and for sale to their inhabitants. Long
1 fore that opinion was given it was held that the " supplying
< a large number of inhabitants with pure water is a public
irpose." Lumbard v. Stearns, 4 Cush. 60.

On the other hand, in an Opinion of the Justices to the House
( Representatives, reported in 155 Mass. 598, a majority of
^e justices expressed the opinion that the Legislature could not

110 OPINIONS OF THE ATTORNEY-GENERAL.

under the Constitution authorize cities and towns to buy coal
and wood for the purpose of sale to their inhabitants for fuel
and in an Opinion of the Justices to the House of Representa-
tives, reported in 182 Mass. 605, the justices were unanimously
of the opinion that in the absence of an extraordinary emer-
gency it was not within the constitutional power of the Legis-
lature to enact a law conferring upon cities and towns authoritj
to establish and maintain municipal fuel or coal yards or to pur
chase coal and wood for the purpose of selling it generally t(
their inhabitants or others.

The line of distinction between these two classes of cases wa;
pointed out in the opinion last referred to. It was there saic
(p. 608) : —

The business of selling fuel can be conducted easily by individuals ii
competition. It does not require the exercise of any governmenta
function, as does the distribution of water, gas and electricity, whicl
involves the use of the public streets and the exercise of the right ol
eminent domain. It is not important that it should be conducted as i
single large enterprise with supplies emanating from a single source, as
is required for the economical management of the kinds of business lasl'
mentioned. It does not even call for the investment of a large capital
but it can be conducted profitably by a single individual of ordinar}
means.

To my mind this language is as applicable to the business oi
selling ice to the inhabitants of a city or town generally as t(
the business of selling fuel to such inhabitants, and indicate:
that the conducting of such a business is not a public purpose
for which money may be raised by taxation. Moreover, when il
is considered that the bill authorizes the sale of ice at wholesale
only, it is even more apparent that the purpose is not public.

My conclusion, therefore, is that the bill concerning whicl
you request my opinion, authorizing, as it does, the raising o
money by taxation to provide directly for the cost of carrying
on the business of harvesting and selling ice or for the repay-
ment of loans made to provide therefor, is unconstitutional, as
authorizing the raising of money by taxation for a purpose nol
public in its nature.

DANA MALONE, ATTORNEY-GENERAL. Ill

Attorney-General — Legislative Committee — Prepara-
tion AND Draft of Proposed Legislation.

It is not within the scope of the duties of the Attorney-General to draft proposed
legislation, or to advise a committee of the Legislature except upon bills
actually pending before it; but if so requested he may, in his discretion
and as matter of courtesy, submit a draft of a bill for the consideration and
assistance of such committee.

Certain questions have been orally and informally referred c°^^ittpp
to me with respect to a so-called merger of the Boston & Maine o° Railroads.
Railroad with the New York, New Haven & Hartford Railroad ^'^^■
Company, and certain legislation designed to prohibit or con-
trol such merger has been submitted for my consideration.

I desire to point out to your committee that there is at pres-
ent before me no evidence whatever of the actual and existing
relations of the two companies above mentioned, except the
statement of President Mellen that "certain interests identified
with my company have placed the control of the Boston &
Maine Railroad where my company can have it when they get
the power to take it," and therefore that the use of the word
"merger" in connection with such transactions as may have
taken place between such corporations or the individual stock-
holders thereof is as yet unwarranted.

It would appear, however, that at present the effect of the
action of the New York, New Haven & Hartford Railroad Com-
pany in the premises, and the object which that corporation is
now seeking to attain, is to establish a control of the Boston &
Maine Railroad through interests friendly to the New^ York,
New Haven & Hartford Railroad Company by means of the
purchase of the stock of the Boston & Maine Railroad sufficient
to enable the New York, New Haven & Hartford Railroad
Company to elect such directors as it may desire to place in
ofiice, who might manage and operate the Boston & Maine
Railroad in the interest of the corporation by whose stock they
were elected, and to the possible disadvantage of the corpora-
tion of which they are officers and of the people of the Com-
monwealth.

St. 1906, c. 463, part 11., § 57, provides in part that "a rail-

112 OPINIONS OF THE ATTORNEY-GENERAL.

road corporation . . . shall not directly or indirectly subscribe
for, take or hold the stock or bonds of or guarantee the bonds
or dividends of any other corporation;" and actions brought
under this section against the New York, New Haven & Hart-
ford Railroad Company to test the legality of the means by
which that corporation controls the stock in certain Massachu-
setts street railway companies are now pending before the
Supreme Judicial Court. No evidence has come to my atten-
tion of any violation of this section of the statute, arising out
of the attempted control of the Boston & Maine Railroad, nor
is there such evidence in the report of the hearing before your
committee.

Further legislation drawn by me and based upon the sugges-
tions contained in His Excellency's message of June 5, 1907,
now before your committee, is submitted herewith, as contain-
ing in proper legal form the views of His Excellency in the
premises. In response to a vote of the committee, I also annex
hereto a draft of a bill which in my judgment is sufficient, by
reason of its provisions, to prevent the control of a corporation
chartered by the Commonwealth from passing, through the
purchase of its stock, into the hands of corporations or individ-
uals less directly within and subject to the jurisdiction of the
Commonwealth, and which in my opinion is a constitutional
exercise of the powers of the Commonwealth in the premises.

Strictly, it is not within the scope of the duties of the Attor-
ney-General to draft proposed legislation, nor, indeed, to advise
a committee of the Legislature except upon such bills as may be
actually pending before it. In the present situation, however,
I have prepared a draft of a bill for your consideration, not
only as a matter of courtesy, but because I desire to render to
your committee such assistance as is in my power in safe-
guarding the interests of the Commonwealth. Should the
Legislature, or either branch of it, or your committee, by a
formal inquiry in writing, seek my opinion and advice upon any
question presented by or relating to any legislation, it will then
become my duty to reply thereto as fully as circumstances may
require.

DANA MALONE, ATTORNEY-GENERAL. 113

•TATE Highway — Alteration of Location — Abandonment.

portion of an existing State highway which, under a proposed plan for altera-
tion of location under R. L., c. 47, §§ 7 and 8, does not fall within the limits
of such highway as established by such alteration, may be abandoned.

The Massachusetts Highway Commission requests my opinion To the
3 to whether a portion of the State highway in the town of Highway

.,''., Commission.

rimfield may be abandoned by the commission, in view of the . i^o^

roposed laying out and taking charge of a new State highway
mning substantially parallel to the portion proposed to be
bandoned.

The statute in question is R. L., c. 47, §§ 7 and 8, which
rovide as follows : —

Section 7. Said commission may, with the concurrence of the mayor
id aldermen of a city or the selectmen of a town, alter the location of a
ate highway in such city or town by filing a plan thereof and a certificate
lat said commission has laid out and taken charge of said state highway,
i altered in accordance with said plan, in the office of the county com-
issioners for the county in which said highway is situated, and by fiUng
copy of the plan or location as altered in the office of the clerk of such
ty or town. ♦

Section 8. Said commission may, with the concurrence of the mayor
id aldermen of a city or the selectmen of a town, abandon any land or
irt thereof, or rights in land which have been taken or acquired by it in
ich city or town by executing, acknowledging and recording a deed
lereof accompanied by a plan of survey which shall be recorded therewith,
lid abandonment shall revest the title to the land or rights abandoned
I the persons, their heirs and assigns, in whom it was vested at the time
" the taking, and may be pleaded in reduction of damages in any suit
lerefor on account of such taking.

These sections were originally Acts of 1900, c. 475, §§ 1 and
It is obvious that the two sections must be read together,
id together provide for the alteration of an existing location
id the abandonment of that portion thereof which is not to be
ibjected to the easement in favor of the public in the new
cation. If this be so, the only question to determine is whether
' not the proposed action by the commissioners will or may be
1 alteration of the location within the meaning of section 7.

June 25.

]\\ OPINIONS OF THE ATTORNEY-GENERAL.

If the proposed plan contemplates the laying out and taking
charge of a wholly new piece of State highway, I think the
existing one cannot lawfully be abandoned. But it seems to me
that the plan can be properly carried out as an alteration of the
existing highway. The proposed new highway will apparently
run for a substantial distance along a route which, though en-
tirely distinct from the present highw^ay, will render its use
superfluous.

I think these facts are sufficient to make the new location an
alteration as defined by Knowlton, C.J., in Bennett v. Wellesley,
189 Mass. 308, at pp. 318, 319.

An opinion of my predecessor, dated Sept, 6, 1902, and re-
ferred to by your commission, was in answer to the question
whether or not a State highway might be wholly abandoned by
the commissioners and surrendered to a town to be under the
sole control of the town, and has therefore no relation to the
question of alteration now under discussion.

I am therefore of opinion that the portion of the location of
the present State highway which will not fall within the limit
established by the new plan may be abandoned by the Highway
Commission, provided that the new portion be laid out and
taken charge of as an alteration of the location of the existing
highway, in accordance with the provisions of sections 7 and 8
of chapter 47.

Pauper — Settlement — Assessment of Taxes.

Under the provisions of R. L., c. 80, § 1, cl: 5, providing that "A person of the
age of twenty-one years who resides in any place within this Commonwealth
for five consecutive years and within that time pays all state, county, city
or town taxes duly assessed on his poll or estate for any three years within
that time shall thereby acquire a settlement in such place," it is necessary
not only that the required taxes should be paid but also that the assessments
thereof should be made within such period.

i^ton'dentor' You rcqucst my opinion as to whether Robert S. Chute, a
state Adult pauper, has acquired a legal settlement in Lynn under the pro-
.luiy 2. visions of R. L., c. 80, § 1, cl. 5, which is as follows: —

A person of the age of twenty-one years who resides in any place
within this coninionwealth for five consecutive years and within that

DANA MALONE, ATTORNEY-GENERAL. 115

ime pays all state, county, city or town taxes duly assessed on his poll
r estate for any three years within that time shall thereby acquire a
Bttlement in such place.

The facts of the case are these: A pauper, aged thirty-nine,
•as committed to the Foxborough State Hospital Nov. 2, 1905.
[e had resided in Lynn continuously since 1902, and had been
ssessed a poll tax for the years 1893, 1894 and 1897, which
ad been paid May 10, 1894, Feb. 19, 1895, and Aug. 15, 1898,
ispectively.

The question is, whether the statute requires that the same
ve-year period which embraces the three dates of payment
lUst also embrace the three dates of assessment, even though
le three assessments were made within a five-year period.

It is settled by the decisions that the pauper must have lived
I a city or town during the whole of the three years for which
le taxes were assessed. Taunton v. Wareham, 153 Mass. 192.
he pauper in the present case having paid between Aug. 15,
S93, and Aug. 15, 1898, the taxes assessed to him for 1893,
S94 and 1897, has he complied with the express requirement
"' the statute that he shall have paid all "taxes duly assessed
n his poll or estate for any three years within that time"?
an the three years, 1893, 1894 and 1897, be considered within
16 five-year period from Aug. 15, 1893, to Aug. 15, 1898?
he taxation year is from May 1 to May 1. Southboroiigh v.
(arlbormgh, 24 Pick. 166. The taxation year in 1893 began on
[ay 1, and therefore that year is not wholly Avithin the period
2ginning with Aug. 15, 1893. Under a strict construction, it
innot be held that the taxes assessed in the present case were
>r three years within a period of five years. It has long been
'ttled that the five years' residence and the five years of taxa-
on must be coincident. Southboroiigh v. Marlborough, supra.

Prior to 1898 the Attorney-General gave an opinion that,
ider Pub. Sts., c. 83, § 1, cl. 5, if three taxes assessed for three
?ars within a period of five years were paid, it was immaterial
lat payment was not made within a five-year period. (See

Op. Atty.-Gen. 519.) The law was amended by Acts of 1898,

425, § 1, so as to require that the three taxes assessed within

110 OPINIONS OF THE ATTORNEY-GENERAL.

the five-year period should also be paid within a period of five
years. It seems fairly clear that it is the intention of the Legis-
lature, by the act of 1898, to provide that the required number
of taxes should be assessed and paid within one five-year period
of residence.

I am therefore of opinion that the pauper in question did not
acquire a legal settlement in Lynn under the provisions of the
statute above quoted.

Automobiles — Registration by Dealer — Expiration of

Registration.

The provision of St. 1903, c. '473, § 1, as amended by St. 1907, c. 580, § 1, that
"the registration of every automobile or motor cycle shall expire upon the
first day of January in each year," is applicable not only to automobiles or
motor vehicles which are owned by single individuals, but also to similar
vehicles when owned or controlled by dealers.

Massachusetts The Massachusctts Highway Commission requires my opinion
commfssion. upou a questiou arising under St. 1907, c. 580, which is entitled
ju^V "An Act relative to automobiles and motor cycles." Your

communication states that : —

In section 1 of this act, in the last sentence, it is stated "The registra-
tion of every automobile or motor cycle shall expire upon the first day of
January in each j^ear." Section 2 of the act relates to the registration
of motor vehicles owned or controlled by manufacturers or dealers. In
this section it is not specifically stated that the registration of such ma-
chines shall expire annually, and the commission is in doubt whether or not
it is intended by the law that the registration certificates shall so expire.

St. 1907, c. 580, § 1, amends St. 1903, c. 473, § 1, by adding
at the end of the section the words, "The registration of every
automobile or motor cycle shall expire upon the first day of
January in each year." The section, before amendment, pro-
vided for the registration of automobiles and motor cycles, but
contained no provision with regard to the expiration of the
registration required; and section 2 of chapter 580 of St. 1907
amended section 2 of chapter 473 of St. 1903, by substituting
the word "fifteen" for the word "ten," so that the amended
section reads as follows : —

DANA MALONE, ATTORNEY-GENERAL. 117

Everj' manufacturer of or dealer in automobiles or motor cycles maj^,
instead of registering each automobile or motor cycle owned or controlled
by him, make application upon a blank provided by said commission for
a general distinguishing number or mark, and said commission maj'', if
satisfied of the facts stated in said application, grant said application,
and issue to the applicant a certificate of registration containing the
name, place of residence and address of the appUcant, and the general
distinguishing number or mark assigned to him, and made in such form
and containing such further provisions as said commission may determine;
and all automobiles and motor cycles oAvned or controlled by such manu-
facturer or dealer shall, until sold or let for hire or loaned for a period of
more than five successive days, be regarded as registered under such
general distinguishing number or mark. The fee for every such certificate
of registration shall be fifteen dollars.

The question submitted is not free from difficulty. It is to
be observed that section 2, above quoted, does not contain any
provision whatever for the expiration of the registration of auto-
mobiles or motor cycles owned or controlled by a manufacturer
or dealer; and it might fairly be contended that such registra-
tion continued indefinitely, notwithstanding the provision al-
ready referred to which was added to section 1 of chapter 473
of St. 1903. Upon the whole, however, I am inclined to believe
that the two sections must be read together, and that the regis-
tration referred to in section 2 is the registration established by
section 1, which expires annually upon the first day of January
n each year.

The provisions of section 2 are intended to provide an alter-
lative for a dealer who owns or controls many automobiles or
Dotor cycles, so that he may by a single registration "register
^ach automobile or motor vehicle owned or controlled by him."
There is nothing in the section to indicate that the Legislature
ntended to permit a dealer, by a single registration and the
)ayment of a single fee of $15, permanently to register all such
lutomobiles or other motor vehicles which he might own or
control in the course of his business.

I am therefore of the opinion that the commission should hold
hat the amendment of section 1 of chapter 580 of St. 1907, —
'The registration of every automobile or motor cycle shall

118 OPINIONS OF THE ATTORNEY-GENERAL.

expire upon the first day of January in each year," — is appli-
cable not only to automobiles or motor vehicles which are
owned by private individuals, but also to similar vehicles when
owned or controlled by dealers.

Member of Legislature — Eligibility for Other Office —
Examiner of Private Bankers.

A member of the Legislature for the session of 1907 is ineligible for appointment
to the position of examiner of persons, partnerships, associations or corpora-
tions engaged in private banking, created by St. 1907, c. 377, § 4.

To the Bank J liavc vour letter of the 16th, in which you inquire in refer-

juiy'^is 6^^^^ ^o the appointment of a member of the present Legislature

as a clerk in your department, whose especial duty is to be to
examine private bankers, under the supervision of your depart-
ment, as required by chapter 377 of the Acts of 1907.

Section 21 of chapter 3 of the Revised Laws provides that: —

No member of the general court shall, during the term for which he is
elected, be ehgible to any office under the authority of the commonwealth
created during such term, except an office to be filled by vote of the people, i

Section 4 of chapter 377 of the Acts of 1907 reads as follows:

The bank commissioner shall, at such times as he may deem expedient,
examine, either personally or by a competent examiner whom he shall
appoint, every such person, partnership, association or corporation, and
thoroughly inspect and examine its affairs to ascertain its financial con-
dition and whether it has complied with all provisions of law applicable
thereto. The proper charges incurred by reason of any such examination
shall be paid by the person, partnership, association or corporation*
concerned.

The law contemplates an examination either by yourself per-
sonally or by a competent examiner whom you shall appoint.
Your right to so appoint was given you by said chapter 377 of
the Acts of 1907. The Legislature intended by section 21,
above quoted, to prohibit the appointment of a member of thei
General Court to any office which was created during the term

DANA MALONE, ATTORNEY-GENERAL. 119

for which he was elected. It seems to me that section 4, above
quoted, creates an office which cannot be filled by such member.
I note you say in your letter that he would perform other
duties, of a clerical nature, in your department. You would,
however, be obliged to appoint him an examiner if he should
examine the private bankers that you name, for otherwise he
would have no authority in the premises; and I must therefore
reply that such an appointment would be contrary to law.

A similar inquiry was submitted to the late Attorney-General
Knowlton in reference to an appointment to the office of in-
surance examiner. The reply was in the negative, and I quote
from the opinion the following: —

The obvious purpose of this statute is to remove from a member of the
Legislature any temptation to be influenced in his vote by reason of the
possibility that he may be a candidate for the places created by the Legis-
lature of which he is a member. (1 Op. Atty.-Gen. 347.)

In this view of the law I concur, and am of the opinion that
it is applicable to this case.

Veteran in the Service of the Commonwealth — Retire-
ment.

A. veteran of the civil war employed by the Metropolitan Park Commission as a
police officer is "in the service of the Commonwealth" within the meaning
of St. 1907, c. 458, which provides in part that "a veteran of the civil war
in the service of the Commonwealth, if incapacitated for active duty, shall
be retired from active service with the consent of the governor."

' In reply to your communication of July 24, inquiring whether to the Metro
!)r not a veteran of the civil war emploved bv the Metropolitan Commisaion.

. ' . "^ . 1907

Park Commission as a police officer is "in the service of the Ju'y si.
Commonwealth," within the meaning of St. 1907, c. 458, which
provides in part that "a veteran of the civil war in the service
3f the Commonwealth, if incapacitated for active duty, shall be
retired from active service, with the consent of the governor,
at one half the rate of compensation paid to him when in active
service, to be paid out of the treasury of the Commonwealth,"

120

OPINIONS OF THE ATTORNEY-GENERAL.

I have to advise you that in my opinion a veteran so employed
is engaged in the service of the Commonwealth, within the
meaning of the statute above quoted, and may be retired as
therein provided. If the veteran in question is so retired,
however, there seems to be no existing legislation which would
authorize the assessment of the pension to which he would
become entitled upon the metropolitan parks district, and the
expense of such pension would therefore have to be borne by
the Commonwealth, requiring a special appropriation therefor
by the Legislature.

Corporation — Agreement of Association
Husband and Wife.

Parties —

To the Com-
missioner of
Corporations.

1907
August 8.

A husband and wife may legally enter into the contract represented by an agree-
ment of association for the purpose of forming a corporation under the gen-
eral laws.

In reply to your communication dated Aug. 1, 1907, I advise
you that in my opinion a husband and wife may legally enter
into the contract represented by an agreement of association
for the formation of a corporation.

Under the laws of this Commonwealth a married woman may
undoubtedly enter into the contract represented by an agree-
ment of association for the formation of a corporation. R. L.,
c. 153, § 2. She may enter into such a contract even if her
husband is also a party thereto, unless by so doing she is mak-
ing a contract with him. If the contract is not between the
husband and wife, the fact that they are both parties to it is
not objectionable. Major v. Holmes, 124 Mass. 108.

In my opinion a married woman is not contracting with her
husband when she and he enter into the contract represented by
an agreement of association for the formation of a corporation.
The agreement of association constitutes an offer which must be
accepted by the corporation before it can become binding. The
formation of the corporation constitutes an acceptance of the
offer made by the persons signing the agreement of association.
The parties to the contract thereby formed are the corporation
on the one hand and the subscribers on the other.

DANA MALONE, ATTORNEY-GENERAL. 121

That this is the true nature and effect of the agreement of
issociation appears from the decisions of the court in the cases
)f Atliol Mvsic Hall Co. v. Carey, 116 Mass. 471, and Hudson
Real Estate Co. v. Tower, 156 Mass. 82. In the former case it
vas said (p. 473) that: —

The promise of each subscriber "to and with each other," is not a
ontract capable of being enforced, or intended to operate literally as
, contract to be enforced between each subscriber and each other who
nay have signed previously, or who should sign afterwards, nor between
ach subscriber and all the others collectively as individuals. The under-
aking is inchoate and incomplete as a contract until the contemplated
rganization is effected, or the mutual agent constituted to represent the
ssociation of individual rights in accepting and acting upon the propo-
itions offered by the several subscriptions. When thus accepted, the
remise may be construed to have legal effect according to its purpose
nd intent, and the practical necessity of the case; to wit, as a contract
'ith the common representative of the several associates.

In advising you as above I am not unmindful of the opinion
f a former Attorney-General,^ in which he said that he saw no
uflBcient reason for changing what he understood —

3 have been the uniform practice of j'our department, to decline to accept
husband and wife toward making up the necessary number of associates,
n the ground that the agreement is a contract between each subscriber
ad all the others, and that a husband and wife camiot lawfully make
ich a contract with each other.

I With deference to the opinion of my predecessor, I cannot, in
iew of the decisions cited, agree with his conclusion upon the
uestion which you submit.

1 1 Op. Atty.-Gen. 47.

122

OPINIONS OF THE ATTORNEY-GENERAL.

To the

.Ma.ssuchusetts
Highway
Commission.

1907
October 25.

Public Records — Returns of Companies engaged in the
Transmission of Intelligence by Electricity.

By St. 1906, c. 433, the Massachusetts Highway Commission is required to re-
ceive and file the annual returns made by companies engaged in the trans-
mission of intelligence by electricity within the Commonwealth, and such
returns are therefore public records, under R. L., c. 35, § 6, which defines
public records to be "any written or printed book or paper . . . which any
officer or employee of the Commonwealth . . . has received or is required
to receive for filing."

The Massachusetts Highway Commission asks my opinion
as to whether or not the annual returns made by companies
engaged in the transmission of intelHgence by electricity within
the Commonwealth, which are filed with the commission in
accordance with the provisions of St. 1906, c. 433, § 8, are to be
considered as public records, to the extent that they are to be
open to the inspection of the public.

St. 1906, c. 433, § 8, is as follows: —

Every company engaged in the business of the transmission of intelli-
gence by electricity within the Commonwealth shall annually, on or before
the first day of October in each year after the year nineteen hundred and
six, submit to said commission a report of its doings for the year ending
on such date or dates preceding as said commission may designate, which
report shall be in such form and detail as the commission may from time
to time prescribe, and shall be called the "Annual Return". Such return
shall be sworn to by the treasurer and by th,e chief accounting officer of
such company, and shall include a statement of its business, receipts and
expenditures within the Commonwealth during the year, its dividends
paid out and declared, the amount of its authorized capital and its in-
debtedness and financial condition, on such date or dates as said com-
mission may designate.

Section 9 provides for a penalty for failure to make the
annual return required by the preceding section.
R. L., c. 35, § 5, provides that: —

In construing the provisions of this chapter and other statutes, the
words "pubhc records" shall, unless a contrary intention clearly appears,
mean any written or printed book or paper . . . which any officer or
employee of the commonwealth or of a county, city or town has received
or is required to receive for filing.

DANA MALONE, ATTORNEY-GENERAL. 123

Section 17 of the same chapter provides that: —

Every person who has the custody of any pubhc records shall, at
•easonable times, permit them to be inspected and examined by any
person, under his supervision, and shall furnish copies thereof on the
)aymcnt of a reasonable fee.

The provisions of R. L., c. 35, § 5, above quoted, were consid-
ered in an opinion of the Attorney-General, dated Sept. 22,
1902, and addressed to the Insurance Commissioner, which
lealt with the annual returns required to be filed by insurance
companies under the provisions of R. L., c. 118, § 96. It is
here stated that : —

This legislative definition cannot be held to include within its intention
ivery paper which an officer of the Commonwealth receives and files.
it must be limited to such as he is required by law to so receive for filing,
^ny other construction must be prejudicial to the rights and interests
)f the Commonwealth or its officers, and, indeed, of parties or persons
naking communications with such officers.

The original act for which the provision of the Revised Laws is a sub-
stitute, St. 1897, c. 439, § 1, called a pubhc record any paper which a
mblic officer is required by law to receive, or in pursuance of any such
equirement has received for fifing. The compilers of the Revised Laws
lave not preserved the distinction between a paper which an officer is
•equired by law to receive and one which he receives for his own con-
/enience. The existing qualification for the purpose of definition makes
I test of the requirement to receive for filing, and any paper so received
'alls within the definition of a public record. (2 Op. Atty.-Gen. 381.)

I can see no distinction, for the purposes of this inquiry,
)etween the returns filed with the Insurance Commissioner by
nsurance companies and those filed w-ith the Massachusetts
highway Commission by telephone companies; and, since it
ippears that the Massachusetts Highway Commission is re-
juired to receive and file the returns provided for in section 8,
iuch returns must, in my opinion, be deemed to be public
■ecords, and as such open to the inspection of the public.

124 OPINIONS OF THE ATTORNEY-GENERAL.

State Board of Charity — Minor Child — Religious
Faith — Adoption — Discharge.

St. 1905, c. 464, § 1, which in part pro^ades that "No minor child in the care, or
under the supervision of any state board of charity, or of any state commis-
sion, or state board of trustees, shall be denied the free exercise of the re-
ligion of his parents . . ." does not affect the authority of the State
Board of Charity in its discretion to discharge a minor child committed to its
custody into the custody of adopted parents, if it appears to such Board that
the objects of the commitment have been accomplished and that the inter-
ests of the child will be best served by such discharge, notwithstanding that
the religious belief of such adopted parents differs from that of the natural
parents of such child.

_ . The State Board of Charity informs me that it has received

10 tne ^

o/cha^rfty.*^ f^om Jcssc M. Puriiiton and Clara F. Purinton "a petition
Novemb'eris. foF the discharge of one Kate Jamrock to their care;" and I am
requested to give my opinion as to the bearing of the provisions
of chapter 464 of the Acts of 1905 on the powers of the Board
with respect to the granting of the petition in question. I am
further asked whether there is any other law affecting its action
and power of discharge in said case.

Section 1 of chapter 464 of the Acts of 1905 reads as follows:

No parents, or surviving parent; of any minor child in the care or under
the supervision of the state board of charity, or of any state commission,
or of any state board of trustees, shall be denied the right of any child
of theirs to the free exercise of the religious ^belief of his parents and the
liberty of worshipping God according to the religion of his parents, or
surviving parent, or of the religion which his parents professed, if they
are both deceased; and no minor child in the care, or under the super-
vision of any state board of charity, or of an)^ state commission, or state
board of trustees, shall be denied the free exercise of the rehgion of his
parents, or of his surviving parent, or of his parents if they are both de-
ceased, nor the liberty of worshipping God according to the religion of his
parents, whether living or deceased.

I regard the question as to this statute as settled by the case
of Purinton et al. v. Jamrock, 195 Mass. 187, 199, in which the
court say : —

It is undoubtedly the general policy of the Commonwealth to secure
to those of its wards who arc children of tender years the right to be

DANA MALONE, ATTORNEY-GENERAL. 125

rought up, where this is reasonably practicable, in tlie religion of their
irents. St. 1905, c. 464, § 1. But it is the right of the children that is
■oteded by this statute. The rights of the parents arc still regulated by
le same principles as before. . . . The first and paramount duty is
> consult the welfare of the child. The wishes of the parent as to the
ligious education and surroundings of the child are entitled to weight;
there is nothing to put in the balance against them, ordinarily they will
• decisive. If, however, those wishes cannot be carried into effect
ithout sacrificing what the court, sees to be for the welfare of the child,
ey must so far be disregarded. The court wall not itself prefer one
lUrch to another, but will act without bias for the welfare of the child
ider the circumstances of each case. . . . The parents' religion is
ima facie the infant's rehgion, and the infant should be brought up in
at reUgion and protected against disturbing influences from persons
a different religious faith; but the infant's weKare must be first of all
garded, and its requirements must be treated as paramount.

Further, the court say : —

This child has been for over four years in the family of the petitioners;
cy were found to be suitable persons to have her custody and education;
strong affection had growai up between her and them; her interest will

greatly jiromotcd by the adoption.

In advising you in this matter, I am therefore obhged to
^fer to the opinion of our highest court, and to say that the
neral pohcy of the law as to the rights of parents has not been
anged by said statute, but the statute evidently intended to

I ovide that the child should not be denied the free exercise
the religion of her parents when she is of sufficient under-

;mding to choose for herself.
As to the final paragraph of said opinion, which reads, —

We have treated the questions arising upon these exceptions as if the

< oct of this decree of adoption would be to entitle the petitioners at

< EC to the custody and control of the child. But in this case she is still
i the custody of the State Board of Charity, and apparently will so
1 Qain until she shall come of age, or that Board shall consider the object
( the conmiitmcnt accomplished, —

i IS entirely within the discretion of the Board to keep the child
i its custody until the child shall become of age, or the Board

126

OPINIONS OF THE ATTORNEY-GENERAL.

shall consider the object of the commitment accomplished. It
the Board should in their discretion decide that the object
of the commitment has been accomplished, and vote to discharge
the child, the adopted parents, being the petitioners, would
acquire the custody and incur the responsibility of the parent?
in respect to such child.

The court seems to regard the whole matter as entirely withir
the discretion of the Board, taking into consideration the wel-
fare of the child; and I know of no other law affecting tht
Board's power to discharge in this case.

To the

Massachusetts
District Police.

1907
November 14.

Manufacturing Establishment — Employment of ]\Iinor^
OR Women — Textile Goods — Knitting.

A manufacturing establishment in which goods are made by the process of knittini
is an estabhshment "engaged in the manufacture of textile goods," withii
the meaning of R. L., c. 106, § 27, as amended by St. 1907, c. 267, pro^idin;
that "No person and no agent or officer of a person or corporation engagec
in the manufacture of textile goods shall employ any minor under eighteei
years of age or any woman, before six o'clock in the morning or after si;
o'clock in the evening."

You require my opinion as to whether or not a manufacturing
establishment in which goods are made by the process of knit-
ting is to be considered as a textile factory, as referred to ii
chapter 267 of the Acts of 1907.

You do not set forth the nature of the "goods" manufac-
tured, but I assume that such goods in the raw material an
textile materials, such as wool, flax, silk, cotton or hemp, anc
that my opinion is desired as to whether or not the process b}
which such materials are converted into manufactured goodj
serves to distinguish such goods when completed from textih
fabrics.

St. 1907, c. 267, amends R. L., c. 106, § 27, so as to read a^
follows : —

No person, and no agent or officer of a person or corporation engaget
in the manufacture of textile goods, sliall employ any minor under eighteei
j^ears of age, or an\ woman, before six o'clock in the morning or afte;
six o'clock in the evening. Whoever violates the provisions of this sectioi

DANA MALONE, ATTORNEY-GENERAL. 127

shall be punished by a fine of not less than twenty nor more than fifty
dollars for each offence.

I The word "textile" as an adjective is defined to be "of or

I pertaining to weaving. Woven, or capable of being woven;

' 'ormed b\^ weaving: as, textile fabrics; textile materials, such as
.vool, flax, silk, cotton." The term "textile fabrics," which

I nay be regarded as synonymous with the words "textile
^oods," as used in the statute above quoted, has been defined
:o include those fabrics woven, as carpets, or capable of being

, voven or formed by weaving, and the noun "textile" to be a
abric which is woven or may be w^oven, — a fabric made by

[ veaving. See Wood v. Allen, 111 la. 97, 100. Such appears to
)e the generally accepted definition.

I am of opinion that the process of knitting is to be con-
lidered as a form of weaving, if th6 material used is a textile
naterial. So the word is defined as meaning, "To w'eave by
coping or knotting a continuous thread; form by w^orking up
.•am or thread with knitting-needles into a fabric held together
)y a series of knots or inter-loopings; as to knit stockings.
^ence — To form as if by knotting or weaving; put together;
. ." Thus it has been held under the Constitution of Loui-
.iana, which exempted capital, machinery and other property
■mployed in the manufacture of textile fabrics, that a manu-
actory of fish lines, ropes and other hempen articles was an
'stablishment employed in the manufacture of textile fabrics,
md the court said: "Such articles as fish lines and ropes can
>nly be made by being woven from raw materials, and are
hemselves textil efabrics." See Cohn v. Parker, 41 La. Ann.
194; Neiv Orleans v. Arthurs, 36 La. Ann. 98.

Although the statute is a penal one, and must be strictly con-
trued, it is nevertheless my opinion that, since knitting may
airly be considered as a form of weaving, and since the product
f made from textile materials may be a textile fabric, and so
textile goods," an establishment where the process of knitting
•^ employed for the manufacture of such goods must be held to
ome within the terms of the statute.

128

OPINIONS OF THE ATTORNEY-GENERAL.

To the
Adjutant
General.
1907
November 15.

Veteran in the Service of the Commonwealth — Retire-
ment — Compensation.

Under St. 1907, c. 458, § 1, which provides that "a veteran of the civil war in the
service of the Commonwealth, if incapacitated for active duty, shall be re-
tired from active service ... at one-half the rate of compensation paid
to him when in active service ..." a veteran so retired is not entitled
to receive compensation based upon the estimated cash value of benefits
in the nature of living expenses, occupancy of a dwelling house free from
rent, and like privileges, in addition to the fixed salary paid to him from the
treasury of the Commonwealth.

I am requested by you to define the meaning of Acts of 1907,
c. 458, § 1, which provides that, —

A veteran of the civil war in the service of the Commonwealth, if
incapacitated for active duty, shall be retired from active service, with
the consent of the governor, at one half the rate of compensation paid
to him when in active service, to be paid out of the treasury of the
Commonwealth, —

as to whether or not a veteran eligible under the provisions of
this statute for retirement, who has been receiving benefits in
the nature of living expenses, occupancy of a dwelling house
free from rent, and like privileges, in addition to the salary paid
to him from the treasury of the Commonwealth, is entitled to
be retired at one-half such salary plus one-half the cash value of
whatever benefit he may have been receiving at the time of his
application.

R. L., c. 6, § 58, provides that, —

Salaries payable from the treasury shall, unless otherwise provided, be
paid on the fu-st of each month and shall be in full for all services rendered
to the Commonwealth by the person to whom they are paid, —

and this section in itself, in my opinion is decisive of the ques-
tion now under consideration.

House rent, living expenses and like advantages which certain
employees of the Commonwealth may enjoy are given to such
employees not as salary which they have a right to demand, but
as privileges which the nature or place of their duties requires
the Commonwealth to grant to them to secure the highest

DANA M ALONE, ATTORNEY-GENERAL. 129

egree of efficiency. Such privileges may at any time be dis-
mtinued, and the employee required to provide both his own
ving expenses and his own house, should such a course be
)ssible without injuring the efficiency of the employee or of
ly other employee who may occupy the same position.
It is, moreover, most unlikely that the Legislature intended
i reduce such items as living expenses, house rent and the like
■ a monetary value, and to include such value in the term
compensation," without providing some means other than the
aims of the employee himself for determining the exact cash
[uivalent of such privileges. It must follow, I think, that the
ord "compensation" is to be limited to salaries, the exact
aount of which is determined by law, and may always be
leedily ascertained by the Governor and Council, and does not
tend to benefits or privileges received by an employee, which
ay not only vary in their character, but in their value, as the
ice of necessities of living rises or falls.

[ViL Service — Exemption — Clerk in the Office of
State Forester — Governor and Council — Approval
OF Employment.

ider St. 1904, c. 409, § 4, which authorizes the State Forester to hire such as-
sistants as he may need in the performance of his duties, and to fix their
salaries, "subject to the approval of the Governor and Council," such ap-
proval is not equivalent to confirmation by the Executive Council within
the meaning of R. L., c. 19, § 9, which exempts from the operation of the
civil service law and rules "officers . . . whose appointment is subject to
confirmation by the Executive Council."

Your letter of October 30 seeks my opinion upon the ciuestion to the civii
lether or not the position of clerk in the office of the State nTission.
)rester is within the classified civil service. November is.

St. 1904, c. 409, § 4, which relates to the State Forester,
far as it is applicable to the present question, is as follows: —

The state forester is hereby empowered, subject to the approval of the
1 vernor and council, to hire such assistants as he maj'^ need in the per-
'■ rmance of his duties, and to fix their salaries.

130 OPINIONS OF THE ATTORNEY-GENERAL.

Your communication then proceeds as follows : —

The question is, whether the language of section 4 of chapter 409 of th
Acts of 1904, "subject to the approval of governor and council," has th
same legal meaning as the language in section 9 of chapter 19 of the Re
vised Laws, exempting from civil service classification officers, "whos
appointment is subject to confirmation bj^ the executive council."

Persons exempt from the classified civil service are stated b,
R. L., c. 19, § 9, to be in part, "judicial officers and officer
elected by the people or by a city council, or whose appoint
ment is subject to confirmation by the executive council or cit
council of any city." The expression used in the above statute
"subject to confirmation by the executive council," is inartificif
and inexact, since there appears to be no case under the statute
of the Commonw^ealth where an appointment is confirmed b
the Council. I am, however, aware that the word "confirms
tion" is now very generally used in connection with the func
tion of the Council, which, under the Constitution and unde
numerous statutes, is to advise with the Executive upon th
matter of appointments, and to consent to such appointment
when made. The Constitution of Massachusetts, in referrin
to the powers of the Executive Council, speaks as follows (par
2, c. 2, § 1, art. 9): "All judicial officers, the solicitor-genera
and coroners shall be nominated and Appointed by the governo
by and with the advice and consent of the council; and ever;
such nomination shall be made by the governor, and made a
least seven days prior to such appointment." It is obviousl;
to this important power and dut}^ of the Council that R. L.
c. 19, § 9, has reference.

I am of opinion that the approval of the employment aiK
compensation of clerks in the several departments of the Com
monwealth is not an exercise of this function, even as designate(
in R. L., c. 19, § 9, and is rather an approval by the Council
acting with the Executive, of a scheme for proposed appoint
ments and expenditures, than a confirmation of the particula
appointment to be made. In the present instance the approva
of the Governor and Council is an approval of such plans as an

DANA MALONE, ATTORNEY-GENERAL. 131

ontemplated by the State Forester and such expenditures as

nay result therefrom, and not a confirmation of the particular

I )ersons to be appointed to clerkships by such officer.

1 Assuming that no other valid ground for objection exists,

' herefore, I must advise you that in my opinion a clerk in the

.ffice of the State Forester is not exempt from the civil service

aw or rules, and must be held to fall within the classified civil

ervice.

Trust Compaxy — Branch Office — City or Town.

it. 1902, c. 355, § 2, providing that the Board of Commissioners of Savings Banks
might authorize any trust company to maintain "a branch office in the city
or town in which its main office is located," does not permit the authorization
of more than one branch office in such city or town.

You ask mv opinion as to the right of trust companies to To the Bank

' ^ Coiiimis3ioner.

Qaintain more than one branch office under chapter 355 of the j^o^g^^^jJer 29
^cts of 1902. This act reads as follows: —

Section 1. No trust company shall liereafter maintain a branch office
xcept as hereinafter provided.

Section 2. The board of commissioners of savings banks may au-
horize in writing snj' trust company to maintain a branch office in the
ity or town in which its main office is located, for the sole purpose of
eceiving deposits, paying checlcs and transacting a safe deposit business.

Section 3. This act shall take effect upon its passage.

I find that the matter was suggested to the Legislature by the
savings Bank Commissioners in their report of Jan. 13, 1902,
n which occurs the following: —

Another matter on which legislation may be required arises in the fact
hat within a few days one trust company has established, at some dls-
ance from its main offices, an office for the receipt of deposits and payment
)f checks, — a course which does not meet the approval of this Board, and
or which the Board claims there is no legal authority, and which is con-
rar>' to the policy of the Commonwealth as evidenced in its banking laws.

I am further informed by you that the matter of authorizing
nore than one branch office was called to the attention of the
legislature of 1907, but no action was taken thereon.

132

OPINIONS OF THE ATTORNEY-GENERAL.

From the facts so presented to me, and from a consideration
of the statute in question, I am of opinion that the Legislature
contemplated the authorization of a single branch office only, and
that the act does not authorize a trust company to maintain
more than one branch office. I understand that the Worcester
Trust Company now has three branch offices, which have
been authorized by the Savings Bank Commissioners. Under
these circumstances, it seems to me proper that you should call
the situation to the attention of the Legislature in your annual
report, although, as I have stated, it is my opinion that it was
not the intention of the Legislature to permit the authorization
of more than a single branch office.

Insane Person — Property in Possession of Officers of
Institutions for Insane — Disposition — Cities and
Towns — Commonwealth — Guardian — Public Admin-
istrator.

The receipt of money belonging to public charges supported in institutions for the
insane or in private families under the supervision of the State Board of
Insanity, by such Board or by the ofHcers of such institutions, for safe keep-
ing because such public charges are not competent to care for it, is not author-
ized by any provision of law.

Money so received may not legally be deposited in a bank or trust company, with
other funds, to the account of any State Board or institution for the insane.

Such money may not be applied by the Commonwealth to the payment of the
expense of supporting any such public charge, during his lifetime, without
the appointment of a guardian; it may, however, be received in payment
for such support, upon an order by the insane person entitled thereto, given
after his discharge from custody as unrecovered, although even in this case
it is ad\'isable that a guardian should be appointed.

Money left in the possession of the treasurers of the several State institutions
for the insane by patients who were supported prior to Jan. 1, 1904, as town
charges, and who died before that date, should be paid to the overseers of
the poor of the places to which such patients were chargeable, if claimed by
them on account of charges for the support of such patients; or, if no such
claim is made, should be paid to the public administrator of the county in
which the institution is situated. Money so retained which belonged to
deceased patients who were supported as State charges may be covered
into the treasury of the Commonwealth.

BoardT o'f * " ^ ou Fcqucst my opinion with reference to the care and

^ i907_ ' disposition of money belonging to public charges supported in

institutions or in the care of private families under the super-

DANA MALONE, ATTORNEY-GENERAL. 133

vision of the State Board of Insanity, and passing into the
Dossession of the officers of such institutions or of such State
Board for safe keeping, because such pubhc charges are not
competent to care for it. Your specific questions I will answer
n order : —

1. May such money be legally deposited in a bank or trust
company on the same account as other funds of the institution?

; No. There is no provision of law authorizing the officers of

! !uch institution or Board to receive such money. The practice

s apparently one adopted wholly for the benefit of the patient,

vithout legal authority; and funds should consequently be held,

f at all, in trust for the beneficiary, and not mingled with other

I unds.

2. May it be legally deposited in a bank or trust company on
I separate account?

If there is no guardian, and the person in charge of the
noney is of the opinion that the bank or trust company is a
lafe depository, it may be deposited, but only as an act of kind-
less to the patient; there is no legal authority therefor.

3. May it be claimed by the State in payment for support of
iuch public charge, without the appointment of a guardian? If
0, by what method?

No; not prior to the death of the insane person. Although
\. L., c. 87, §§ 78, 79, jjrovide for the payment of the charges
or the support of insane persons by such persons if of sufficient
ibility, it would not be proper for the Commonwealth or for
my institution to appropriate the money of an insane person
or this purpose. A guardian should be appointed, to protect
he interest of the patient.

4. May it be taken by the State in payment of his support
)n his order, given after his discharge as unrecovered from
■ustody as an insane person?

Yes; after a patient is discharged from the hospital he may
)e treated and dealt with as an ordinary person of sound mind,
rrespective of whether or not he has been discharged as "un-
ecovered." It would seem, however, that money should not be
eceived by the State, even on a discharged person's order.

134 OPINIONS OF THE ATTORNEY-GENERAL.

without the appointment of a guardian, if the superintendent
of the institution or other person receiving the money is of
opinion that the discharged person is unable to look after his
affairs with reasonable prudence.

5. The treasurers of the State insane hospitals and asylums
have in their possession money left by patients w'ho w-ere sup-
ported prior to Jan. 1, 1904, as town charges, and who died
previous to that date. . . . You ask what disposition should be
made of this money. Must it be returned to the towns or can
it be covered into the State treasury?

By the provisions of R. L., c. 87, § 37, the overseers of the
poor of the place to w'hich the deceased was actually chargeable
are entitled to take possession of all his real and personal
property. Consequently, such sums should be paid to the
overseers of the poor of the places to wdiich the patients were
respectively chargeable, if the said overseers desire to be reim-
bursed for the expenses incurred for the pauper. If there are
no such charges for expenses as aforesaid, and if the person in
charge of the institution, or the Board, has no knowledge of any
husband, widow or heir of the deceased who should be notified,
the money, if less than twenty dollars in all, should be delivered
to a public administrator for the county in wdiich the institution
is. See R. L., c. 138, § 18, and 1 Op. Atty.-Gen. 536. If
the amount exceeds twenty dollars, and the overseers of the
poor of the city or town make no claim upon it, the public
administrator of the county in which the institution is situated
should be notified of the facts. See R. L., c. 138, § 2. If the
public administrator neglects or declines to act, the district
attorney of the district in which the institution is situated
should be notified. See R. L., c. 138, § 17.

6. The treasurers also have $772.47 wdiich belonged to de-
ceased patients who w^ere always supported as State charges. Is
it legal for this Board to receive that money, under the provi-
sions of section 9, chapter 87, and section 27, chapter 81, of
the Revised Laws, and how shall it proceed to do so?

Yes. Section 9 of chapter 87 of the Revised Laws provides,
in part: —

DANA MALONE, ATTORNEY-GENERAL. 135

The board shall have the same powers relative to tlie state poor who
,re inmates of the institutions under its supervision and to their property
s are vested in towns and overseers of the poor relative to paupers sup-
lorted and relieved by towns.

Section 37 of chapter 81 provides that: —

Upon the death of a pauper who at his decease is actualh' chargeable
0 a place within this commonwealth, the overseers of the poor thereof
aay take possession of all his real and personal property.

These provisions obviously give the State Board of Insanity
)Ower to take the property of such deceased patients as have
)een supported as State charges, for the purpose of reimbursing
he Commonwealth for the sums expended for their support.
Che money so obtained should be covered into the treasury of
he Commonwealth.

7. The treasurers of the several institutions mentioned also
lave savings bank books which belonged to patients now de-
jeased, who were supported during commitment as State
charges, and these deposits have been unclaimed for more than
ive years. Can the State recover from these deposits the
charges for the support of these patients; or, if these unclaimed
deposits should be paid to the State Treasurer, under the provi-
dons of section 55, chapter 113 of the Revised Laws, is there
my method by which the hospitals can be reimbursed for the
support of said patients?

The Board has the same right to receive the money on de-
posit in a savings bank and apply the same to the indebtedness
:)f the patient to the Commonwealth for his support as it has to
take and apply the money on hand with the treasurers of the
institutions under the provisions quoted in the preceding answer.
R. L., c. 113, § 55, does not apply to any deposits made in
savings banks other than those made by authority of the pro-
bate court, court of insolvency or other court.

136

OPINIONS OF THE ATTORNEY-GENERAL.

To the
State Board
of Health.

1907
December 9.

Public Records — Letters and Reports in Custody of
State Board of Health.

Under the provisions of R. L., c. 35, § 5, that "The words 'public records' shall
. . . mean any written or printed book or paper ... in or on which
any entry has been made or is required to be made by law, or which
any officer or employee of the Commonwealth . . . has received or is
required to receive for filing," reports and letters of complaint which are the
result of investigation made by the State Board of Health under its general
authority to make sanitary investigation and inquiry, which are in the cus-
tody of the State Board of Health, are not public records, and therefore are
not open to public inspection.

I am asked by the State Board of Health whether certain
reports and letters of complaint are public records, within the
meaning of sections 5 and 17 of chapter 35 of the Revised Laws,
which provide as follows: —

Section 5. In construing the provisfdns of this chapter and other
statutes, the words "public records" shall, unless a contrary intention
clearly appears, mean any written or printed book or paper, any map
or plan of the Commonwealth or of any county, city or town which is
the property thereof and in or on which any entry has been made or is
required to be made by law, or which any officer or employee of the
Commonwealth or of a count}^, city or town has received or is required
to receive for filing, and any book, paper, record or copy mentioned in the
.six following sections. The word "record" shall, in this chapter, mean
any written or printed book, paper, map or plan.

Section 17. Every person who has the custody'' of any public records
shall, at reasonable times, permit them to be -inspected and examined by
any person, under his supervision, and shall furnish copies thereof on the
pajTnent of a reasonable fee. In cities and towns such inspection and
furnishing of copies may be regulated by ordinance or by-law.

You say that the Board, under its general authority to make
sanitary investigations and inquiries, began on March 1, 1905,
a systematic examination of premises where milk is produced
for public sale, employing a skilled veterinarian, who up to the
present time has examined more than 8,300 dairies; that for
convenience and the sake of uniformity the conditions observed
at each place are reported to the Board on blank forms, and in
case the conditions noted are incompatible with the production
of a sanitary milk supply, the secretary of the Board calls the
attention of the proprietor thereto, and makes suggestions with

DANA MALONE, ATTORNEY-GENERAL. 137

he request that they be adopted. You say that the publication

if a list of the farmers whose premises have been found to"

aerit criticism would not be for the public good, but that an

ijustice would be done to those farmers who have adopted

he suggestions offered and have continued to keep their cows

nd premises in proper sanitary condition.

These reports and letters of complaint about which you speak

re not incorporated into and are not a necessary part of the

;cord which you are required by law to keep. If they were, it

ould be your duty, upon request, to furnish them for inspec-

on and examination, and to furnish copies of the same. Such

?ing the case, and such papers not forming a part of the record

' the work done in your office, and not being of such a charac-

r that you are required by law to receive them for filing, but

?ing obtained and preserved by you for your own convenience

I the proper administration of your office, you are not obliged

' t exhibit them to any person who may ask to see them.

Similar opinions have been rendered to various departments

{ my predecessors, and I see no reason for departing from the

lie already laid down by them.

\.UPER Law — Contagious Diseases — Quarantine — Tem-
porary Aid to Unsettled Paupers — Cities and Towns
— Board of Health — Overseers of the Poor.

the family of an unsettled person suffering from contagious disease dangerous
to the public health, but not quarantined, is aided for the reason that such
family are unable to maintain themselves, and are, therefore, a charge to
the city or town where they are domiciled, such aid should be rendered by
the overseers of the poor under the provisions of R. L., c. 81, § 21, the tem-
porary aid law, so called, and subject to the restrictions therein contained.

. the board of health of such city or town expends money for the support of the
family of a person infected with a contagious disease, and therefore quarantined
with his family, such expense is incurred for the preservation of the public
health, and cannot be recovered either from the city or town where such per-
sons are settled, or from the Commonwealth if such persons have no settlement.

1 neither of the above cases does aid so rendered pauperize the persons aided.

Vou seek my opinion upon certain facts which are stated as to the Super-

f I intendent of

1 lows : State Adult

i laborer, thirty years old, is suffering from tuberculosis. He ^^j^^^^ i7
iij been earning $9 a week, and has no money saved. His

138 OPINIONS OF THE ATTORNEY-GENERAL.

attending physician and the local board of health are notified.
He has a wife and four children without means of support.
Neither his wife nor his children are sick.

Upon these facts you submit the following specific ques-
tions: —

Under the statutes, should the board of health provide for the sick
person only, and the overseers of the poor provide for the other members
of the family who are not sick?

If the overseers of the poor so provide, is the aid rendered by them to
the persons not sick hmited as to amount by the terms of the temporarj^
aid law, if the persons so aided have no legal settlement, and reimburse-
ment is asked from the Commonwealth?

Does the aid so rendered by the overseers of the poor pauperize the
family?

Should the board of health provide not only for the sick person, but
also for the other members of the family who are not sick?

Is the aid so furnished by the board of health to the persons not sick
limited as to amount by the terms of the temporary aid law if the persons
so aided have no legal settlement, and reimbursement is asked from the
Commonwealth, or is such aid controlled only by the words "suitable"
as to character and "reasonable" as to expense?

The statutes which are material in the premises are St. 1907,
c. 386, amending St. 1902, c. 213, § 1, and the temporary aid
statute, so called, R. L., c. 81, § 21.

St. 1902, c. 213, § 1, as amended, reads as follows: —

Reasonable expenses incurred by the board of health of a city or town
or by the Commonwealth in making the provision required by law for
persons infected with smallpox or other disease dangerous to the public
liealth shall be paid by such person or his parents if he or they be able
to paj^, otherwise by the city or town in which he has a legal settlement,
upon the approval of the bill by the board of health of such city or town
or by the state board of charity; and such settlement shall be determined
by the overseers of the poor, and by the state board of charity in cases
cared for by the Commonwealth. If the person has no settlement, such
expense shall be paid by the Commonwealth, upon the approval of bills
therefor by the state board of charity.

Section 2 as amended provides : —

DANA MALONE, ATTORNEY-GENERAL. 139

No person for whose care and maintenance a city or town or the Com-
lonwealth has incurred expense in consequence of smallpox, scarlet
!ver, diphtheria, tuberculosis, dog bite requiring anti-rabic treatment,
r other disease dangerous to the public health shall be deemed to be a
auper by reason of such expenditure.

R. L., c. 81, § 21, so far as it is material to the present ques-
on, provides : —

A city or town may furnish aid to poor persons found therein, having
) lawful settlements within the Commonwealth, if the overseers of the
)or consider it for the pubhc interest; but, except in cases under the
ovisions of section fourteen of chapter eighty-five, not for a greater
nount than two dollars a week for each family during the months of
I 'ay to September, inclusive, or three dollars a week during the other
j onths; and the overseers shall in every case give immediate notice in
"iting to the state board of charity, which shall examine the case and if it
rects a discontinuance of such aid, shall remove such persons to the
ate hospital or to any state or place where they belong, if their neces-
;ies or the public interest requires it, and the superintendent of said
jspital shall receive the persons removed thereto as if they were sent
ere in accordance with the provisions of section seven of chapter eighty-
's.

This statute was amended by St. 1903, c. 355, but such
Qendment does not aflPect the present question.
The first question raised by the inquiries above quoted is
lether or not the board of health of a city or town, if aid is
! rnished to persons other than the person infected with small-
•X or other disease dangerous to the public health, may charge
!ch expenses to or collect them from the Commonwealth in
ses of unsettled persons.

I am of opinion that under the provisions of St. 1907, c, 386,
1, the board of health of a city or town is not authorized to
' arge to the Commonwealth any expenditures made to the
i mily of a person infected with a contagious disease, such aid
Hng necessary only when the family of the person aftected is
itlated or quarantined. This appears to be the conclusion
uched by the court in the case of Haverhill v. Marlborough,
7 Mass. 150, which was a suit brought by the city of Haver-

140 OPINIONS OF THE ATTORNEY-GENERAL.

hill to recover the expenses incurred by such city in consequencel
of the illness from smallpox of two persons whose settlement!
was in Marlborough. The case was tried without a jury, upon
the pleadings and an agreed statement of fact, in the lower
court, which disallowed certain items charged by the city of
Haverhill against the city of Marlborough. After passing upon
certain of the claims which were allowed in the court below and
sustaining the decision there rendered, the court says (p. 155):

The other classes of expenses were for services of policemen stationed
to enforce the quarantine of the house, and for sicpplies for other persons
not ill, furnished because they were also quarantined in the same building.
All these expenses were disallowed by the lower court, and we think
righth\ They were not incurred for the persons infected with smallpox,
but for the preservation of the public health.

This decision would seem to be decisive upon the first ques-
tion, and to show, at least in the case of settled persons, that
the expenses for which recovery i^ allowed must be strictly
limited to those incurred for or in behalf of the person actually
afflicted with a contagious disease. I see no reason to distin-
guish between those expenses which one city or town may re-
cover from another city or town in the case of settled paupers,
and those which a city or town may recover from the Common-i
wealth in the case of unsettled paupers. It was the evident
purpose of the statute to allow a reimbursement for the same
expenses in both cases. It follows, therefore, that if the board
of health expends money for the support or maintenance of the'
family of a person infected with a contagious disease who were
quarantined with such person, such expenses must be treated as
having been incurred for the preservation of the public health,
and cannot be recovered either from a city or town where the
sick person is settled, or from the Commonwealth in case such
person has no settlement.

If, however, the family of a person suffering from such dis-
ease but not quarantined are aided for the reason that such
family are unable to care for and maintain themselves, and are,
therefore, a charge upon the city or town where they are

DANA MALONE, ATTORNEY-GENERAL. 141

omiciled the aid rendered should, in my opinion, be rendered
y the overseers of the poor, under R. L., c. 81, § 21, the tem-
orary aid law, so called, and subject to the restrictions there
5tablished, as would be the case where such family had become
oor and unable to support themselves, by reason of the death
' injury of the parent whose work it was to provide for them.
With respect to the effect of aid rendered under either of
lese statutes in cases of contagious diseases dangerous to the
iblic health, I am of opinion that such expenditures as are
ade by the board of health, whether in behalf of the person
flicted or of his family, do not pauperize any of the persons
ho receive such aid. Where the aid is rendered by the over-
ers of the poor, the question is more difficult; but in that case
30, in my opinion, the aid furnished, if it may properly be said
at the expense incurred was in consequence of contagious
sease dangerous to the public health, does not pauperize the
•rsons aided. This view is confirmed by the fact that the
ovision of St. 1907, c. 386, § 2, is broad enough in terms to
elude not only aid furnished by the local board of health for
e purpose of preserving the public health, but also aid fur-
shed by the overseers of the poor, and required by the
'verty of the family of the person afflicted with such disease.

:teran in the Service of the Commonw^ealth — Retire-
ment — Compensation — Salary.

1 St. 1907, c. 458, § 1, providing that "a veteran of the civil war in the serv-ice
of the commonwealth, if incapacitated for active duty, shall be retired from
active serv-ice, with the consent of the governor, at one-half the rate of com-
pensation paid to him when in active ser\ace, to be paid out of the treasury
of the commonwealth," the word "compensation" is to be limited to salaries
the exact amount of which is determined by law, and may not include li\ang
expenses or other like advantages, in addition to such salary.

(n answer to Your Excellency's letter, enclosing a communi- xothe
c ion from the superintendent of the Medfield Insane Asvlum, i908 '

January 20.

1 regard to the pension case of an employee of said institution,

I eply as follows : —

142 OPINIONS OF THE ATTORNEY-GENERAL.

This question depends upon the meaning of section 1 of
chapter 458 of the Acts of 1907, which provides that: —

A veteran of the civil war in the service of the commonwealth, if in-
capacitated for active duty, shall be retired from active service, with the
consent of the governor, at one-half the rate of compensation paid to
him when in active service, to be paid out of the treasury of tlie common-
wealth.

In the case submitted for my consideration, the veteran was
paid a salary of $1,500 a year, and in addition received his board
and lodging; and he now claims to be entitled to be retired at
one-half such salary plus one-half the cash value of the board
and lodging he was receiving at the time of his application.

R. L., c. 6, § 58, provides that: —

Salaries payable from the treasury sliall, unless otherwise pro\dded, be
paid on the first of each month and shall be in full for all services rendered
to the commonwealth by the person to whom thej^ are paid.

This section itself, it seems to me, is decisive of the question
now under consideration. The living expenses and like advan-
tages which certain employees of the Commonwealth may enjoy
are given to them not as salary, but as privileges which the
nature or place of their duties require the Commonwealth to
grant to them to secure the highest degree of efficiency. SuchI
privileges may at any time be discontinued and the employee^
required to defray his own living expenses, should such a course
be possible without injuring the efficiency of the employee or of
any employee who may occupy the same position. It is not
probable that the Legislature intended to reduce such items as
living expenses to a monetary value without providing some
means other than the claims of the employee himself for deter-
mining the exact value of such privileges; and it must follow, I
think, that the word "compensation" is to be limited to salaries,
the exact amount of which is determined by law and may
always be speedily ascertained by the Governor and Council.

DANA MALONE, ATTORNEY-GENERAL. 143

'axation — Stkeet Railway Corporation — Receiver —
Returns to Local Assessors — Liability for Tax.

t. 1906, c. 463, Part III., § 133, requiring a street railway corporation to make
a return to the board of assessors of every city and town of the amount of
gross receipts for the j^ear ending on the preceding 30th of September, and
of the length of trade operated, requires a street railway company to make
such return, notwithstanding such company has gone into the hands of a
receiver, and its franchises and property have been sold prior to September
30, under the provisions of St. 1906, c. 463, Part III., § 144, to another cor-
poration, organized for the purpose of owning and operating such road; and
the tax pro\'ided for by section 134 of Part III. of such statute may be assessed
upon it and may be collected from the purchasing company.

You have requested my opinion upon certain facts growing to the Tax
' it of the sale of the property and franchises of the South i908

j f t^ J ^ January 27.

I [iddlesex Street Railway Company to the Middlesex & Boston

:reet Railway Company. You state that the South Middle-
X Street Railway Company went into the hands of a receiver,
id that its property and franchises were sold by the receiver

July, 1907; that the Middlesex & Boston Street Railway
ompany was organized to own and operate said road, and that
e former company did not, on Sept. 30, 1907, own or operate
ly track.

Your questions are, first, whether the South Middlesex Street
ailway Company is required to make a return to the local
sessors for the year ending Sept. 30, 1907, of the length of
ack operated by it in public ways and places, and of its gross
ceipts, in accordance with the provisions of St. 1906, c. 463,
irt IIL, § 133; and, second, whether this company is liable

taxation under the provisions of section 134 of this statute,
• d, if so, whether the tax may be collected from the purchasing
< mpany.

I am of opinion that the original company is required to make
i return in accordance with the provisions of section 133 of the
utute cited, and is liable to taxation under section 134 thereof.

The statute requires a return of the amount of the gross re-
( pts for the year ending on the preceding thirtieth day of
^ptember, and of the length of track operated. It is not neces-
S"y that the company making the return should be operating

144 OPINIONS OF THE ATTORNEY-GENERAL.

the road on the thirtieth day of September. The statute re-
quires a statement of the gross receipts for the year ending at
that time. UnHke the statute providing for the corporate fran-
chise tax (St. 1906, c. 463, Part III., § 125), it does not require
that the length of track operated be taken at any particular
time. There is no reason why the original company should not
make the return required by statute.

Furthermore, there is no reason why it should not be liable
for the tax. This tax is not based upon the value of the fran-
chise at the time of assessment (see Commonwealth v. Lancaster
Savings Bank, 123 Mass. 493), but is a payment for the use of
the streets and highways. Such a tax may be laid on a cor-
poration in the hands of a receiver as well as a property tax. j
City National Bank v. Charles Baker Company, 180 Mass. 40.

If the tax is not laid on the original company, it cannot be
laid at all. It is a tax imposed in lieu of payment for the care
and repair of streets and highways. Springfield v. Springfield
Street Raihvay, 182 Mass. 41, 45; Boston v. Union Freight Rail-
road Co., 181 Mass. 205; McDonald v. Union Freight Railroad
Co., 190 Mass. 123. It is in lieu of payment for the care and
repair of streets and highways for the year covered by the gross
receipts returned. Since it is based on gross receipts per mile,
the cities and towns in which the railway is operated will receive
nothing in lieu of payment for care alid repairs for the period
during which the road was operated by the original company,
unless a tax is assessed upon such company. Clearly, the Legis-
lature did not intend that the cities and towns within which a
street railway was operated should be required to bear the bur-
den of caring for and repairing streets and highways merely
because the franchises and property of the railway company
were sold during the tax year.

Though the return must be made by the original company,
and the tax assessed upon it, the tax may, in my opinion, be
collected from the purchasing company. I assume that the
franchises and property of the company were purchased unden
authority of St. 1906, c. 463, Part III., § 144, which provides;
that the purchaser shall hold and possess the railway, franchises.'

DANA MALONE, ATTORNEY-GENERAL. 145

nd property "subject to the same duties and liabilities as the
riginal street railway company;" but it provides that no action
lall be wrought against such purchasers "to enforce any lia-
ility incurred by said original company, except debts and lia-
ilities owing from said original company to any city or town
ithin which the railway is operated, and taxes and assessments
ir which said original company is liable under the statutes
'lating to street railways, which shall be assumed and paid by
lid new company."

The liability for the commutation tax imposed by the sections
)ove cited upon the original company is, in my opinion, such a
ibility as the purchasing company is required to assume, and

such a liability incurred by the original company as may be

e ground for an action against the new^ company.

^UPER Law — State Pauper — Aid rendered in Place
OF Settlement of Wife — City or Town — Reim-
bursement BY Commonwealth — Notice.

here a town seeks reimbursement under the provision of R. L., c. 85, § 16, that
"if a state pauper has a wife who is also a pauper hav-ing a legal settlement
in the commonwealth, he shall be supported by the place where his wife has
her settlement, and the commonwealth upon a written notice to the state
board of charity within sixty days after aid is first given to him shall reim-
burse such place," such town must show that notice was given strictly in
accordance with the terms of the provision for reimbursement; and a town
is not entitled to be reimbursed for expenses incurred for a period of sixty
daj^s prior to the date of notice, when more than sixty days have elapsed since
aid was first rendered.

My opinion is requested by you with respect to a claim made to the Supei
1 the overseers of the poor of the town of Easton, under the state Aduil
i lowing circumstances : — iocs

^ February 14.

Un Aug. 12, 1907, the town of Braintree notified the State

J'ard of Charity that an unsettled male pauper was receiving
luper relief; and on Aug. 16, 1907, Braintree notified the town
c Easton that the former was aiding the family, and claimed
t It the wife of the pauper and his children had settlements in
i ston. These settlements apparently are not denied by the

146 OPIXIONS OF THE ATTORXET-GEXER.U..

town of Easton. Some time subsequent to the latter date the
State Board notified the overseers of the poor of Braintree thai
it considered the case in question closed, for the reason that the
wife had a settlement in Easton, and that if any claim is made
upwn the Commonwealth it should come from that place. Or
Dec. 3. 1907, the town of Easton notified the State Board
making a claim for the man's share of the aid given, to whicl:
the State Board repHed that the notice was too late, not cominc
within sixtA* days after aid was first rendered to the pauper ii
question in accordance with the pro\'i5ions of section 16 o
chapter So of the Revised Laws. The town of Easton contend
that it is entitled to reimbursement for the period of sixty day
prior to its notice, irrespective of the time which has elapses
subsequent to the rendering of the first aid.
R. L., c. S5. § 16, provides that: —

If a state pauper has a wife who is also a pauper having a legal se::.r
ment in this commonwealth, he shall be supported by the place wher-
his wife has her settlement; but the commonwealth upon written DOtb'
to the state board of charity within sixty days after aid is first givai U
him, shall reimburse such place the cost of such support based upon th»
expense of supporting him had he been committed to the state hosiatal

In my opinion, the contention of the State Board of Charitj
must be sustained. I think the words of the statute are den
and unambiguous, to the effect that the Commonwealth shal
only reimburse cities and towns upon written notice within sixtj
days after aid is first given. I find nothing in the history o
this section which tends to put any other interpretation upoi
the words used.

D-VXA ^LAXOXE, ATTORNEY-GENERAL. 147

• suranxe — ix^-estmext of fuxds — secured loaxs —

Mortgages.

der the proviaons of St. 1907, c. 576, § 37, that the capital of any domestic
lEisuranee company other than Ufe, and three-fourths of the reserve of any
domestic stock or mutual life insurance company, shall be invested as therein
prescribed, a domestic life insurance company may invest its fiinds in loans
secured by assessable stock of any trust company or bank; or in loans se-
cured by stock, bonds and other collateral, whether or not such collat-eral
is designated in St. 1907, c. 576. § 37. clauses 1 to 5. inclusive; or in loans
upon mortgages of real estate to an amount exceeding 60 per cent, of the fair
market value of the property mortgaged at the time of such loan.

My opinion is requested by you upon the following ques- To the

Insurance
1 ns: ConuniaaoE

.. Whether or not it is lawful for a domestic life insurance company to
3 est any of its funds in loans secured by assessable stock of any trust
« Qpany or bank as collateral.

I. Whether or not it is lawful for such a company to invest any of its
i ds in loans secured by stocks, bonds or other coUateral not designat-ed
i 5ub-di^-isions 1 to 5, inclusive, of section 37 of chapter 576 of the Acts
(1907.

5. Whether or not it is lawful for such a company to invest any of its
f ds in loans upon mortgages of real estate to an amount exceeding 60
1 cent, of the fair market value of the ijroperty at the time of such loan.

.n my opinion, all of these inquiries must be answered in the
£ rmative.
^t. 1907, c. 576, § 37. pro\"ides: —

Che capital of any domestic insurance company other than life, and
1 3e fourths of the reser\-e of any domestic stock or mutual life insm^ance
c ipany . shaU be invested only as f oUows : —

■ In loans upon improved and unencumbered real property in any
81 € of the United States, provided that no loan on such real property
d Q exceed sLxty per cent of the fair market value thereof at the time
0 uch loan, . . .

190S
February ;

. In loans secured by coUateral security consisting of any of the above.

rhe word "above"" here refers to the earlier clauses pro\'iding
f( investment in United States or State bonds, municipal bonds,

148 OPINIONS OF THE ATTORNEY-GENERAL.

school and water district bonds, railroad or street railway bonds
and notes,

8. No domestic life insurance company shall invest any of its fund'
in any unincorporated business or enterprise, nor in the stocks or e\-i-
dcnce of indebtedness of any corporation, the owners or holders of whici
stock or evidence of indebtedness may in any event be or become liable
on account thereof to any assessment except for taxes, nor shall sucl
life insurance company invest any of its funds in its own stock or in th(
stock of any other insurance compan5^ No such company shall inves'
in, acquire or hold directly or indirectly more than ten per cent of th(
capital stock of any corporation, nor shall more than ten per cent of it
capital and surplus be invested in the stock of any one corporation. . .
nor shall any such company'- enter into any agreement to withhold fron
sale any of its property, but the disposition of its property shall be at al
times within the control of its board of directors.

9. Nothing herein shall prevent such company from investing or loaninj
any funds not required to be invested as provided in sub-divisions om
to seven, inclusive, of this section in any manner that the directors of sucl
life insurance companj^ maj'' determine : provided, however, that such fund
shall not be invested in the purchase of stocks or evidence of indebtednes;
prohibited by sub-division eight of this section, and provided that n(
loan of such funds shall be made to an individual or firm unless it i
secured by collateral security.

It is clear that the capital and one-fourth of the reserve of (
domestic life insurance company is limited only as to invest-
ments by clauses 8 and 9. The prohibited investment undei
section 8 means the purchase and ownership by a domestic li!(
insurance company of stock or evidence of indebtedness of f
company liable to assessments other than taxes. That prohibi-
tion does not extend to loans made by a domestic company
which are limited only by the proviso of clause 9, to the effeci
that no loan shall be made unless it is secured by collatera
security. In my opinion, the whole of the capital stock anc
one-fourth of the reserve of a domestic life insurance compan^
may be invested in loans to individuals or firms secured by stool
of a trust company or bank which is assessable otherwise thar
for taxes.

The same reasoning applies to the second question. In m}
opinion, there is no limitation upon the class or nature of the

DANA MALONE, ATTORNEY-GENERAL, 149

illateral security required under the above quoted proviso of

ause 9. Consequently, the whole of the capital and one-fourth
I? the reserve of such a company may be invested in loans

•cured by stocks, bonds or other collateral not designated in

auses 1 to 5, inclusive.

As to the third inquiry, I do not think that mortgages of

al estate are controlled by clause 9, and, except as otherwise
j cpressly provided by clause 4 of this section, a company may

vest any of its funds in loans upon mortgages of real estate
such an amount as it sees fit, and is not limited to 60 per

nt. of the fair market value.

:CRETARY OF THE COMMONWEALTH — HiSTORY OF UnIT OF

Military Organization of Massachusetts Volunteers
— Approval by Proper Veteran Association — Pur-
chase OF Copies.

1893, c. 413, § 1, as amended by St. 1899, c. 388, authorizing the purchase by
the Secretary of the Commonwealth, subject to the restrictions therein pre-
scribed, of 500 copies of a history of any regiment, battery or other unit of
military organization of Massachusetts Volunteers, prepared and published
"under the sanction and authority of its proper veteran association," per-
mits the purchase of the designated number of copies of such a publication
sanctioned and approved by certain late ofBcers of the organization appointed
by the members thereof for the purpose, although no veteran association
exists in connection with such organization.

I have your inquiry of February 20 respecting the authority to the
( certain late officers of the Eighth INIassachusetts Infantry, Secretary.

I iited States Volunteers, to approve, under the provisions of February 25.
' 1893, c. 413, § 1, the publication of a history of such regi-

i-nt during the Spanish war, entitled "Twelve Months with

I I Eighth Massachusetts Infantry in the Service of the United
•^ites." Section 1 of the statute above cited is as follows: —

^Vhenever, after the passage of this act, any regiment or battery, or
Cicr unit of military organization of Massachusetts volunteers, shall
J blish or shall have prepared for publication a history of such organiza-
ta, under the sanction and authority of its proper veteran association,
^ ich history shall be shown to the satisfaction of the governor and

150 OPINIONS OF THE ATTORNEY-GENERAL.

council to be, so far as is practicable in such works, faitlifuUy and accu-
rately prepared and historically correct, to contain matter not previously
published or accessible to the general historian, to be of sufficient reliability
and importance to justify the purchase of copies as herein provided for,
and to contain a complete roster of the organization, corrected to the date
of publication, the secretary of the commonwealth, with the approval of
the governor and council, and at a price fixed by them, shall purchase five
hundred copies of such history. Said history shall be in one volume, and
the price thereof shall not exceed two dollars for a volume of four hundred
octavo pages.

The provisions of the statute above quoted were, by St. 1899,
c. 388, made applicable to histories of organizations of Massa-
chusetts volunteers which saw active service in the field during
the Spanish war.

The specific inquiry presented by your communication is
whether or not the certificate of approval which you submitted
is a sufficient compliance with the provision of St. 1893, c. 413,
§ 1, requiring that such publication should be under the sanction
and authority of the proper veteran association of the military
organization whose history is in question. The undoubted pur-
pose of such provision was to secure the approval of such
veteran association, if any, to the publication of any history of
the organization which it represents. In the present instance it
is true that there was in existence no regular association of
veterans of the Spanish war who had served in the Eighth
Massachusetts Volunteer Infantry; but if, as I assume, the
members of such regiment who would be eligible to membership
in a veteran association associated themselves together and duly
selected a committee to represent them, which committee exam-
ined the publication and duly sanctioned and authorized the
same, as appears from the certificate of approval above referred
to, I am of opinion that the terms of the statute have been
substantially complied with in the premises, and that the
Secretary of the Commonwealth is authorized to deal with the
publication alreadv referred to as directed in St. 1893, c. 413,
§1.

DANA MALONE, ATTORNEY-GENERAL. 151

ONSTITUTIONAL LaW — APPROPRIATION — PUBLIC PuRPOSE

— Liability of Commonwealth for Act of Insane
Person released on Parole.

he Commonwealth is not liable for any act of or injury caused by an insane per-
son released from a public asylum on parole, by authority of St. 1905, c. 435,
§ 1; and an appropriation for the purpose of compensating the widow of a
member of an unpaid commission in the service of the Commonwealth, who
was killed by an insane person so released on parole, is not for a public pur-
pose, and is, therefore, unconstitutional.

You ask my opinion on the following questions: — cCmmittee^on

Ways ind

1. Is the responsibility of the Commonwealth, if any, for injury caused ^'^igos
;■ an insane person released from a public asylum on parole, such as
ay constitutionally be recognized by the Legislature through a com-
•nsatory appropriation.

March 11.

Chapter 435 of the Acts of 1905 provides in section 1 that: —

The superintendent or keeper of any institution, pubhc or private, used
holly or in part for the care of the insane, may permit any inmate thereof
mporarily to leave such institution in charge of his guardian, relatives,
lends or by himself, for a period not exceeding six months, and may
ceive him when returned by any such guardian, relatives, friends or
)on his own apphcation within such period, without any further order
commitment. The expense of such return of a pauper may be paid
.' the state board of insanity, if, in its opinion, a new commitment would
herwise be necessary.

It is therefore clear that an insane person may be released
om a public asylum on parole. Even if the superintendent
?ted improperly, no government has ever held itself liable to
idividuals for the misfeasance, laches or unauthorized exercise
" power by its officers and agents. In the language of Judge
tory, "it does not undertake to guarantee to any person the
delity of any of the officers or agents whom it employs, since
lat would involve it in all its operations in endless embarass-
lents and difficulties and losses which would be subversive of
le public interests." Gibbons v. United States, 8 Wall. 274.
'herefore, whether the insane person was properly released or

152 OPINIONS OF THE ATTORNEY-GENERAL.

not, no liability attached on the part of the Commonwealth.
If an appropriation of money to be raised by taxation is con-
templated in a case of this kind, it would be by way of gift,
and would clearly be an excess of legislative power.

I am of opinion, therefore, that such appropriation cannot be
constitutionally made.

2. Would an appropriation to the widow of a member of an unpaid
commission be an appropriation for a public purpose?

The power of the government to affect the individual in his
private rights of property is confined to purposes and objects
alone which the government was established to promote, public
uses and the public service.

I am informed that the appropriation suggested is to the
widow of one of the five members of the Commission on Com-
merce and Industry, appointed pursuant to chapter 104 of the
Resolves of 1907. This commission had been appointed about
six months, and had not made its report when Edward Cohen,
one of the members, was shot in an anteroom of the Executive
Chamber at the State House.

The power to give rewards after the event for conspicuous
public service, if it exists at all, is limited to cases where a man
has deserved greatly of the Commonwealth by military or civil
services in which the public advantage 'of recognizing his merit
should be the strong element, and "the public welfare alone
must be the ground, as it is the only legal justification for this
kind of payment." Opinion of Justices, 175 Mass. 602. Can it
be fairly said that a member of a commission, paid or unpaid,
who had been in the service of the Commonwealth only for a
few months, whose report had not been made, has deserved
greatly of the Commonwealth by conspicuous service which
would be entitled to a reward by way of gift? It seems to me
that it cannot be fairly thought that the public good will be
served by such a grant, and that in such a case the only public
advantage is such as may be incident and collateral to the
relief of a private citizen.

DANA MALONE, ATTORNEY-GENERAL. 153

I am of opinion that an appropriation to the widow of such
person is not for a public purpose, and cannot be made under
le Constitution.

3. Would an appropriation to the widow of one not in the service of
le Commonwealth, injured while in a public building, whether or not
trough the negligence of any servant of the Commonwealth, be an
)propriation for a public purpose?

I understand that this question refers to the shooting by an
isane person of Dennis D. Driscoll, who was not in the employ
' the Commonwealth, but w^ho was waiting in the anteroom of
le Executive Chamber wdth Edward Cohen for the purpose of
terviewing His Excellency the Governor on the question of the
irdon of a prisoner in the State Prison at Charlestow^n. I am
opinion that a payment by the Commonwealth, to the widow
a person shot as aforesaid, of any sum of money merely by

j ason of his happening to be at the State House on an unoffi-

' al matter when he received his injury, would not be for a
iblic purpose within the meaning of the law; and that there is
) more reason for such payment than there would be if the
;rson were elsew' here — upon the streets or in any building —

I hen he was shot, and that such an appropriation would not be

j r a public purpose.

3NSTITUTI0NAL LaW — TAXATION — APPROPRIATION OF PUB-
LIC Funds — Public Purpose — Religious Society,
School or Institution — Sectarian Control.

society, school or institution which is under direct ecclesiastical or sectarian
control, and is designed solely or even principally for the benefit of persons
of a particular sect or denomination, cannot be held to be maintained for a
public purpose such as would justify an expenditure of money raised by taxa-
tion ; and an appropriation for the benefit of such societj^ school or institution
from the public funds raised by taxation would be unconstitutional.

I have the honor to acknowledge the receipt of an order to the House

. 1 of Repre-

i opted by the Honorable House of Representatives on the senmives.
1 enty-eighth day of February, 1908, requiring my opinion, April 6.
i follows : —

154 OPINIONS OF THE ATTORNEY-GENERAL.

Ordered, That the Attorney-General be requested to submit to the
House of Representatives his opinion in writing upon the following ques-
tion: Under the Constitution and laws of the Commonwealth, can a
State, county, city, town, village or other civil division use its property
or credit, or any money raised by taxation or otherwise, or authorize
either to be used, for the purpose of founding, maintaining or aiding by
appropriation or in any other manner any church, religious denomination
or religious society, or any institution, school, society or undertaking
which is under sectarian or ecclesiastical control?

The question is a somewhat broad one, but for the purposes
of this inquiry I assume that the Honorable House of Repre-
sentatives in substance desires my opinion on the question
whether or not public moneys raised by taxation may, under the
constitutional provisions, be expended by the Commonwealth or
by any county, city or town thereof for the purpose of founding,
maintaining or otherwise aiding any church, religious denomina-
tion or religious society or any institution, school, society or
undertaking which is under sectarian or ecclesiastical control.
On this assumption I submit the following conclusions : —

The right to appropriate public funds for specific purposes
is no more extensive than the power to levy taxes for such
specific purposes. The power of taxation has been defined and
limited by the Constitution of the Commonwealth. Article
IV. of section I. of chapter I., part second, declares that the
purposes for which the power of taxation in its various forms
may be exercised by the Legislature are "for the public service,
in the necessary defence and support of the government of the
said commonwealth, and the protection and preservation of the
subjects thereof." Article XL of section I. of chapter H. re-
stricts the issuing of moneys from the treasury to purposes of
"the necessary defence and support of the commonwealth; and
for the protection and preservation of the inhabitants thereof,
agreeably to the acts and resolves of the general court."

In Lowell v. Boston, 111 Mass. 454, 460, it is said that: —

The power to levy taxes is founded on the right, duty and responsibility
to maintain and administer all the governmental functions of the State,
and to provide for the public welfare. To justify any exercise of the

DANA MALONE, ATTORNEY-GENERAL. 155

lOwer requires that the expenditure which it is intended to meet shall be
Dr some public service, or some object which concerns the public welfare.

And in Mead v. Acton, 139 Mass. 341, 344, the court said: —

The right to tax is the right to raise money by assessing the citizens
jr the support of the government and the use of the State. The term
taxation" imports the raising of money for public use, and excludes
(le raising of it for private uses. Opinion of the Justices, 186 Mass. 604.

The question is in each case, therefore, whether or not the
urpose for which money is to be appropriated and spent is a
•ubhc purpose, or, in connection with the precise question under
onsideration, whether or not the estabhshment, maintenance
r aid of a church, religious denomination or rehgious society
r of any institution, school, society or undertaking which is
nder sectarian or ecclesiastical control may be a public purpose
;hich would justify the appropriation and use of public money.

With respect to churches and rehgious societies or denomina-
ions in general, the question is disposed of by a consideration
f the existing provisions of the Constitution and of the history
f their enactment. The original provision of the Constitution
mbodied in the bill of rights (article III.) expressly empowered
he Legislature to compel the several towns, parishes and other
lolitical divisions of the Commonwealth to provide for public
/orship, and failure so to do was in some cases subject even

0 indictment. See Commonwealth v. Waterborough, 5 Mass.
1.57. As a necessary consequence of this duty, the towns and

parishes of the Commonwealth were authorized to raise money
<y taxation for the purpose of maintaining and supporting
public Protestant teachers of piety, religion and morality"

1 all cases where such provision was not voluntarily made.
t. 1799, c. 87. And fines and penalties were provided for the
ailure so to do. It remained for the constitutional amendment
uly adopted in 1834 to put an end to taxation for the support
f churches or religious societies. The final words of this
mending article (article XI. of the articles of amendment)
re as follows : —

156 OPINIONS OF THE ATTORNEY-GENERAL.

and no subordination of any one sect or denomination to another shall
ever be established by law.

It is true that the Commonwealth still aids churches or re-
ligious societies of every sect and denomination by a general
exemption from taxation of their property (see R. L., c. 12,
§ 5, cl. 7); but I am constrained to conclude that in respect of
particular religious societies or churches an appropriation of
public moneys raised by taxation for their benefit would be un-
constitutional and void," for the reason that such appropriation
would not be for a public body, but for an association of in-
dividuals (see Kingman v. Brockton, 153 Mass. 255), and might
be objectionable for the reason that it effected a subordination
of one sect or denomination to another, contrary to the final
provision of article XI. of the Amendments to the Constitution
of the Commonwealth hereinbefore referred to.

In the case of schools, so far as such schools fall within the
limits of the system of education required to be established and
maintained by the cities and towns of the Commonwealth the
rule seems to be equally well established and definite. Article
XVIII. of the Amendments to the Constitution is as follows: —

All moneys raised by taxation in the towns and cities for the support
of public schools, and all moneys which may be appropriated by the state
for the support of common schools, shall be applied to, and expended in,
no other schools than those which are conducted according to law, under
the order and superintendence of the authorities of the town or city in
which the money is to be expended; and such money shall never be
appropriated to any religious sect for the maintenance, exclusively, of
its own school.

The terms "public schools" and "common schools," as used
in this amendment, have been repeatedly defined. So in Jenkins
V. Andover, 103 Mass. 94, 99, the court said: —

These are the schools to which the eighteenth article appUes, — schools
which towns are required to maintain, or authorized to maintain, though
not required to do so, as a part of our system of common education, and
which are open and free to all the children and youth of the towns in
which they are situated, who are of proper age or qualifications to attend

DANA MALONE, ATTORNEY-GENERAL. 157

lem, or which adjoining towns may unite to support as a part of the
,me system. . . . This class of schools does not include private schools
hich are supported and managed by individuals; nor colleges or acade-
ies organized and maintained under special charters for promoting the
gher branches of learning, and not specially intended for, nor limited
', the inhabitants of a particular locahty.

In the case of all such schools an appropriation of public
oney to or for the benefit of any religious sect for the mainte-
ince exclusively of its own school is expressly forbidden. See
mkins v. Andover, above cited.

Upon the other hand, it has long been the custom of the
ommonwealth to aid by grants of land, by immunity from
xation, and even by direct appropriation of money, the estab-
;hment and maintenance of colleges, technical schools and
:her institutions of higher learning. The distinction between
1 appropriation for public schools and for the institutions of
I gher learning has been pointed out in Merrick v. Aviherst, 12
[len, 500, 508, as follows: —

The phrases "public schools" and "common schools" have acquired
ider the legislation and practice of this State a well-settled signification,
tiey are never applied to the higher seminaries of learning, such as in-
■rporated academies and colleges. These, in a certain broad and com-
•ehensive sense, are pubhc institutions, because they are controlled by
■rporations and are usually open to all persons who are willing to comply
ith the terms of admission and tuition. But the broad line of distinction
'tween these and the "public or common schools" is, that the latter
e supported by general taxation, that they are open to all free of expense,
id that they are under the immediate control and superintendence of
;ents appointed by the voters of each town and city. That the amend-
ent was intended to apply only to these schools is manifest, not only
Dm the terms in which it is expressed, but also from the history of its
igin and adoption as part of the organic law.

The assistance granted the higher institutions of learning,
lerefore, is based upon the proposition that the constitutional
•Qvision did not apply to them, and that the establishment and
aintenance of such institutions is a public purpose for which
le Constitution does not forbid the appropriation of money

158 OPINIONS OF THE ATTOENEY-GENERAL.

raised by taxation. Upon the other hand, a school, society or
institution which is under direct sectarian or ecclesiastical con-
trol, and was designed solely, or even principally, for the benefit
of persons of that particular sect or denomination, and for no
others, could not be deemed to be maintained for a public pur-
pose which would warrant an appropriation of the public funds.
Replying to the specific question of the Honorable House of
Representatives, the principles above described are in my
opinion equally applicable to any institution, society or under-
taking for which it is asked that public money be appropriated.
I apprehend that the question in each case must be whether or
not the purpose which it is sought to aid is a public purpose,
and such question is to be determined upon the facts then
presented.

Civil Service — Exemption — Officer — Clerk of Chief

OF Police.

The clerk of the chief of police of the city of Worcester, who is appointed by such
chief of police, subject to confirmation by the city council, and whose duties
are such clerical duties as may be prescribed by such chief of police, is not
an "officer" within the meaning of R. L., c. 19, § 9, which excepts from the
operation of the civU service law and rules " and officers . . . whose appoint-
ment is subject to confirmation by the . . . city council of any city," and
the appointment of such clerk must be made in accordance with the require-
ments of such law and rules.

ciVifservice ^^^ rcqucst my opinion upon certain questions in regard
Co^.^mis8ion. ^^ ^^^ positiou of clcrk of the chief of police of the city of
Aprim. Worcester. You advise me that on Feb. 3, 1908, the city

council of that city passed an ordinance which provides as

follows : —

Section 1. In the month of February, nineteen hundred and eight,
and in the month of January of each alternate year thereafter, the chief
of police shall appoint a clerk, subject to confirmation by the city council
as hereinafter provided.

Section 2. The appointment of clerk of the chief of police, made as
provided in section one of this ordinance, shall take effect when confirmed
by the city council of the city of Worcester, and approved by the mayor.

Section 3. The clcrk of the chief of police shall be under the sole direc-
tion of, and his duties shall be such as are prescribed by, the chief of police.

DANA MALONE, ATTORNEY-GENERAL. 159

No statement is made by you as to the duties prescribed for
,uch clerk by the chief of police, but I assume that they are
)rdinary clerical duties.

You make several inquiries, but in my view of the law a reply
0 one of them will, I think, be sufficient to enable you to per-
orm your duty in the premises. This question is as follows: —

Is the appointment of a clerk of the chief of police, made under the
hove ordinance and without due requisition and certification under
he civil service law and rules, a legal appointment?

My answer is that such appointment is not a legal appoint-
nent. The position of clerk of the chief of police is within the
•ivil service rules, unless it is expressly excepted therefrom.
The only exception which with any show of reason could be held
0 apply to a person holding that position is the exception of
officers . . . whose appointment is subject to confirmation by
he . . . city council of any city." R. L., c. 19, § 9. In my
)pinion, however, a clerk of a chief of police is not an "officer"
vithin the meaning of the word as here used.

That there is a distinction between public "office" and public
'employment" is well settled. Broicn v. Russell, 166 Mass, 14,
15; Attorney-General v. Drohan, 169 Mass. 534, 535. See, also,
Opinion of the Justices, 166 Mass. 589. This distinction is
ecognized in the statutes of this Commonwealth relating to
•ivil service. R. L., c. 19, §§ 9, 23, 25, 26, 28 and 32. Cf. St.
.884, c. 320, §§ 2, 14. See, also. Brown v. Russell, swpra;
Opinion of the Justices, supra. The principal test as to whether
)r not a position is an office, as distinguished from an employ-
nent, is whether or not it involves "a delegation of a portion of
he sovereign power to, and possession of it by, a person filling
he office." 1 Op. Atty.-Gen. 72. The position in question
loes not satisfy this requirement. The method of appointment
md the period of service, whether fixed or otherwise, may prop-
erly be considered in determining whether or not a position is
in "office" or an "employment," but are not decisive. "The
lecisive question is whether the real character and functions of
he place in question make it an office or an employment in the

160 OPINIONS OF THE ATTORNEY-GENERAL.

sense of the law and in view of the distinction thereby estab-
Hshed." 1 Op. Atty.-Gen. 72, 73.

The line of distinction between offices and employments is
clearly not the same as that between positions in the official
service and in the labor service, under civil service rules. j\Iany
positions in the official service are not offices within the meaning of
the word as used in section 9 of chapter 19 of the Revised Laws.

In my view of the law I am sustained by an opinion of my
predecessor, from which I have quoted above, in which he
stated that in his opinion a clerk to the board of overseers of
the poor of the city of Lawrence, holding a position which called
merely for clerical service and assistance to the chief clerk, was
not an "elective officer" within the meaning of the civil service
law as it then stood. St. 1884, c. 320, § 15.

The principles which I have stated are equally applicable to
the position of night janitor of the city hall of Salem. The
ordinary duties of a night janitor are not such as to constitute
him an "officer", within the meaning of section 9 of chapter 19
of the Revised Laws.

Constitutional Law — Public Funds — Appropriation —
Public Purpose — Money not directly raised by
Taxation.

Since the relief of persons who have suffered los^ by fire, or by other great and
general calamity, is not a public purpose which will justify the expenditiire
of public funds, an appropriation of public money for such purpose is uncon-
stitutional, and it is immaterial that the money sought to be so appropriated
was not directly raised by taxation, but was received from the sale and rental
of lands belonging to the Commonwealth.

Commiuee*on ^ havc the houor to acknowledge the receipt of a communica-
^"mi ^^^^ from the Senate committee on rules, requesting my opinion

Aprin4. «gg ^Q ^Y^^ constitutionality of the enclosed bill accompanjing

the petition of William j\I. Robinson for legislation for the relief
of the sufferers by the recent fire in Chelsea." The bill sub-
mitted with such communication is in the form of a resolve,
and is as follows: —

Resolved, That there may be expended for the relief of sufferers from
the recent fire in the city of Chelsea a sum not exceeding one hundred

DANA MALONE, ATTORNEY-GENERAL. 161

Dusand dollars, the same to be taken from the CommoDwealth's flats
provement fund, created by chapter two hundred and thirty-seven of
3 acts of the j^ear eighteen hundred and seventy-eight, and to be ex-
ided under the direction of the governor.

It has long been established in this Commonwealth that
)ney raised by taxation may be expended only for a public
rpose. Lowell v. Oliver, 8 Allen, 247, 253; Mead v. Acton,
9 Mass. 341, 344; Kingman et al., Petitioners, 153 Mass. 566;
)inion of the Justices, 155 Mass. 598, 601; Opinion of the
stices, 186 Mass. 603, 605; Opinion of the Justices, 190 Mass.
1, 613. And it is equally well settled that the relief of per-
is who have suffered loss by fire or by other great and general
amity is not in a legal sense a public purpose. So, in the
ie of Lowell v. Boston, 111 INIass. 454, at page 472, in con-
ering the constitutionality of St. 1872, c. 364, an act author-
ug the city of Boston to issue bonds and lend the proceeds on
] )rtgage to the owners of land, the buildings upon which were
rned by the great fire of 1872, the court, through Mr. Justice
ells, said : —

i As a judicial question the case is not changed by the magnitude of the
I amity which has created the emergency, nor by the greatness of the
\ ergency or the extent and importance of the interests to be promoted.
1 ese are considerations affecting only the propriety and expediency
< the expenditure as a legislative question. If the expenditm'e is, in its
1 ;ure, such as will justify taxation under any sta.te of circumstances,
1 Delongs to the Legislature exclusively to determine whether it shall be
i :horized in the particular case ; and however slight the emergency, or
1 .ited or unimportant the interests to be promoted thereby, the court
1 5 no authority to revise the legislative action.

On the other hand, if its nature is sucli as not to justify taxation in any
i 1 all cases in which the Legislature might see fit to give authoritj^
t irefor, no stress of circumstances affecting the expediencj^, importance
( general desirableness of tlie measure, and no concurrence of legislative
i 1 municipal action, or preponderance of popular favor in am' particular
( e, will supply the element necessary to bring it within the scope of
1 islative power.

The proposed resolve does not, upon its face, disclose or indi-
(te an expenditure of the sum appropriated thereby for any

162 OPINIONS OF THE ATTORNEY-GENERAL.

exclusively public purpose, and I conceive, therefore, that the
precise inquiry upon which your committee seeks my opinion is
the question whether or not the fact that the proposed appro-
priation is to be made from a specific fund created from moneys
received from the sale or use of the Commonwealth's lands (see
St. 1878, c. 237) is sufficient to distinguish the present case in
principle from those already cited, so as to permit an appro-
priation of public monej's for purposes not strictly public.

Upon this question I am constrained to advise your com-
mittee that in my opinion it is immaterial that the proposed
resolve contemplates an expenditure of money which was not
raised directly by taxation, but which was received from the ,.
sale and rental of lands belonging to the Commonwealth. I

It must, I think, be obvious that money so received is aE
asset of the Commonwealth and is public money available foi
public purposes, and that its employment for other than publi(
purposes must necessarily require sums to replace it which cai
be raised only by taxation. Upon this point my opinion is con
firmed by the language of the highest court of the Common
wealth in considering St. 1904, c. 458, an act which providec
for the payment of bounties to certain veterans of the civil wai
(Opinion of the Justices, 186 Mass. 603, 605), which was as
follows : —

Section 6 authorizes an issue of bonds of the Commonwealth to provide
for the pajTnents to be made under the act, and authorizes an appropria-
tion of money to pay the bonds, out of the sums that shall be received
from the United States government for expenses incurred by the Common-
wealtli in connection with the civil war. Under St. 1903, c. 471, these
sums are to be paid into the treasury of the Commonwealth for the reduc-
tion of the pubhc debt, and the effect of the statute before us is to take
from the treasury, for the pajanent of these bounties, money which
ultimately can be replaced onlj^ by taxation. We are therefore brought
to the question whether it is in the power of the Legislature to tax the
people of the Commonwealth to provide money for this purpose.

Moreover, the question seems also to have been decided m
Loioell V. Boston, above cited, where, on page 461, the court
say: —

DANA MALONE, ATTORNEY-GENERAL. 163

The incidental advantage to the pubhc or to the State, which results
cm the promotion of private interests and the prosperity of private
iterprises or business, does not justify their aid by the use of public
oney raised by taxation, or for which taxation maj'- become necessary.

Since the resolve under consideration provides for the expendi-
I're of money from the public treasury for purposes not neces-
rily public, which can be ultimately replaced only by taxation,
am unable to distinguish between the present case and those
ses which have been discussed; and I must, therefore, advise
e honorable Senate committee on rules that in my opinion the
solve as submitted to me is not in conformity with the Consti-
tion of the Commonwealth.

)RPORATioN — Foreign Corporation — Laws of District
OF Columbia.

1903, c. 437, § 56, which defines a foreign corporation to be any corporation
organized "under laws other than those of the commonwealth for the purposes
for which domestic corporations may be organized under the provisions of
section seven" of such chapter, extends to and includes a corporation chartered
under the general laws of the District of Columbia.

You request my opinion upon the followina; question: — xothe

^ Commissioner

of Corpora-
Is the fact that a corporation is organized under the general laws of the ^°m8
j strict of Columbia a reason sufficient to excuse said corporation from ^^"^ "^"
! ng its annual certificate of condition and paying the excise tax as
1 [uired of foreign corporations b}^ chapter 437 of the Acts of 1903?

I am of opinion that your question should be answered in the
igative. A corporation chartered by Congress legislating di-
I'tly for the District of Columbia is a foreign corporation
nhin the meaning of St. 1903, c. 437, § 56, which defines the
tm " foreign " corporation " as including every corporation
(artered "under law^s other than those of the commonwealth
I' purposes for which domestic corporations may be organized
vder the provisions of section seven." See Daly v. National
J^e Insurance Co., 64 Ind. 1; Layden v. Knights of Pythias,

164 OPINIONS OF THE ATTORNEY-GENERAL.

128 N. C. 546. The regulation of such a corporation is not an
interference with interstate commerce, nor is it an interference
with the carrying on of governmental functions.

Civil Service Commission — Certificatiox of Pay Rolls
OF THE City of Boston — Police Force.

Members of the police force of the city of Boston are not persons "in the service oi
employment of the city of Boston," within the meaning of St. 1908, c. 210
providing in substance that the Civil Service Commission shall certify all
pay rolls, bills and accounts for salary or compensation of persons in th(
service or employment of such city.

Jp ^.Jie . You ask mv opinion as to whether the Police Commissioneii

Civil bervice ^ i t

^igos'^^'""' ^^^ members of the police force of the city of Boston are per-|
Apni^s. g^j^g ajj^ ^j^g service or employment of the city of Boston,"

wuthin the meaning of chapter 210 of the Acts of 1908, in sub
stance providing for the certification by the Civil Service Com'
mission of all pay rolls, bills and accounts for salary of persons
in the service of the city of Boston.

I am of opinion that they are not. St. 1906, c. 291, § 8
provides that: —

All expenses for the maintenance of buildings, the pay of the police
clerks, stenographers and other emploj^ees, and all incidental expenses
incurred in the performance of the duties of said commissioner or in th(
administration of said police, shall be paid by the city of Boston upoD
the requisition of said police commissioner.

The Legislature has established a special public officer, ap
pointed by the Governor, independent of any control or direc
tion on the part of the city of Boston, as the head of the police
department of such city. The city has no control over him oi
the police officers. That statute requires the payment of the
bills upon the requisition of the Police Commissioner. Undei
these circumstances, I am of opinion that chapter 210 of the)
Acts of 1908 does not apply. See Malioncy v. Boston, 171
Mass. 427.

DANA MALONE, ATTORNEY-GENERAL. 165

Ietropolitan Park Commission — Rules and Regulations
FOR Government of Police Force — Punishment of
Breach of Regulations by Forfeiture of Pay —
Transfer — Civil Service — Veteran — Waiver by
Officer of Benefit of Civil Service Rules.

le Metropolitan Park Commission under existing provisions of law has authority
to establish rules for the government of its police force, and under such rules
to punish a police officer, who has committed an offence, by a forfeiture of
pay for a period not exceeding thirty days ; or to transfer a poHce officer who
is a veteran from a reservation or parkway in one city or town to a reserva-
tion or parkway in another city or town within the jurisdiction of such
commission.

le authority of the Metropohtan Park Commission in the premises is not limited
by St. 1904, c. 314, § 1, which provides that persons holding office or employ-
ment in the public ser\'ice of the Commonwealth, classified under the civil
service rules, "shall hold such office or emploj^ment and shall not be removed
therefrom, lowered in rank or compensation, or suspended, or, without his
consent, transferred from such office or employment to any other except for
just cause and for reasons specifically given in writing; or by St. 1905, c. 150,
§ 1, and R. L., c. 19, § 23, which extends a like protection to veterans in the
public service of the Commonwealth.

1 agreement signed by a police officer upon entering the ser\'ice of the Metropolitan
Park Commission, to the effect that he will obey and be bound by such rules
and regulations as are or may be from time to time adopted by such com-
mission, would not constitute a waiver by such officer of any rights under
the statutes above quoted; and such agreement is material only as evidence
that at the time of entering the service of such commission the subscriber
was aware of the rules and regulations then in force.

In a letter of recent date you state that the Metropolitan to the Metro-

1 /-I . . . . 1 1 • p politan Park

irk Commission request my opinion as to the authority or commission.

le commission in certain matters pertaining to the adminis- May 25.

ation of its police force, and you call my attention to a rule

ily enacted by vote of the commission, and now in force, for

e government thereof, to the effect that any member of such

rce may be punished by the Board in its discretion, either by

primand, by forfeiture of pay for not exceeding thirty days for

ly one offence, by being reduced in rank, or by dismissal from

e force on conviction by the commission of any one of a num-

T of enumerated offences, such as intoxication, any act of

subordination, neglect of duty, neglect or disobedience of

ders, any legal offence, immoral conduct, etc. You also have

lied to my attention the following agreement, which every

lOG OPINIONS OF THE ATTORNEY-GENERAL.

police officer upon entering the service of the commission is re-
quired to sign: —

In consideration of my employment as a member of the Metropolitan
Park Police, I agree to obey and be bound by such rules and regulations
as are or may be from time to time adopted for the govermnent of the
Police Department of the Metropolitan Park Commission.

The specific questions to which you request answers, in the
order in which you ask them, are: —

1. If the Board finds a police officer guilty of any offence under this
rule, has it the authority to punish such officer by forfeiture of his pay
for a period not exceeding thirty days?

2. Is such a forfeiture a lowering of " compensation" within the meaning
of St. 1904, c. 314, § 1, or of St. 1905, c. 150, § 1?

3. If such police officer so found guilty is a veteran within the meaning
of R. L., c. 19, § 20, has the Board authority to impose upon him, without
a hearing before the Board of Conciliation and Arbitration, a punishment
not amounting to a transfer from his office or employment, an abolition
of his office or a lowering of compensation, within the meaning of said
chapter 150 of the Acts of 1905?

4. If the Board transfers a police ofP-cer who is a veteran from a reserva-
tion or parkway in one town where he has been performing police duty
to a reservation or parkway in another city or town for service, is such
transfer a transfer of office or employment within the meaning of said
act of 1905, so that such officer is entitled to a hearing before said Board
of Conciliation and Arbitration?

5. Whether or not the signing of the agreement quoted, by a police
officer upon entering the service of the commission, has any effect upon
his legal obUgations to the commission and upon the authority^ of the
commission over him?

The answers to the first three questions depend, of course,
upon the authority of the commission to make rules for the
administration of its police force, and upon the authority of the
commission in the enforcement of those rules to punish viola-
tions of the rules.

It may be assumed as beyond dispute that the Legislature, in
giving to the commission its powers, intended to confer upon it
exclusive and complete authority and control over the reserva-

DANA MALONE, ATTORNEY-GENERAL. 167

tions and parkways acquired by it. St. 1893, c. 407, § 4; St.
1894, c. 288, §§ 1 and 3. 1 Op. Atty.-Gen. 588, 590; 2 Op.
Atty.-Gen. 303, 366. In furtherance of this object, the com-
mission is given power to employ a suitable poUce force, and the
policing of the reservations and parkways obviously, therefore,
becomes as much a part of the duty of the commission as the
doing of any other duly authorized act of administration and
maintenance. The express grant of authority to employ a suit-
able police force would, however, be somewhat futile if it did
not carry with it, at least by implication, the authority to enact
reasonable rules for the effective administration of that police
force. It obviously follows, also, that the power to enact rules
and regulations would be a useless power if it were not accom-
panied by the authority to enforce by reasonable means obedi-
ence to those rules and regulations. The position of the com-
mission in these matters is not to be distinguished from the
position of every public officer in similar matters; and therefore
the familiar principle is applicable, that public officers have
not only the powers expressly conferred upon them by law,
but also by necessary implication such powers as are requisite
to enable them to discharge the official duties devolved upon
them. 23 Am. & Eng. Ency. Law. 365. Vose v. Deane, 7
Mass. 280.

Moreover, the power of the commission to enforce by reason-
able measures discipline in its police force results not only from
the very nature of the authority and responsibility conferred
upon the commission by law, but also from the nature of the
oflSce of a police officer. The police officer, in his employment,
is not acting under a contract, strictly speaking, but he is essen-
tially a State oflBcer bound to preserve its peace and to execute
its laws. Philliys v. Boston, 150 Mass. 491. The conditions of
his employment are, therefore, not fixed by contract, and his
duties and responsibilities are not to be interpreted by the rules
governing the interpretation of contracts. He is responsible to
the superior agency of the government which appoints him, and
must conform in the performance of his duties to such reason-
able conditions as such superior agency may prescribe.

IG8 OPINIONS OF THE ATTORNEY-GENERAL.

jNIy opinion upon the question of the general authority of the
commission, therefore, is that the commission has authority to
establish rules for the government of its police force, and under
those rules to punish a police officer who has committed an
offence. This opinion seems to be amply sustained by Malcolm
V. Boston, 173 Mass. 312.

Your first question asks whether the commission have author-
ity in the exercise of this general power to impose as a specific
penalty forfeiture of pay for a brief period not exceeding thirty
days. From what has already been said it follows that the
commission have this authority, unless it has been taken from
them by statutory modification of their general powers. The
general powers of the commission have been somewhat qualified
by the statutory requirements in the cases of persons not
veterans who are employed under the civil service law. St.
1904, c. 314, provides: —

Section 1. Every person holding office or employment in the public
.service of the commonwealth or in any countj'^, city or town thereof,
classified under the civil service rules of the commonwealth, shall hold
such office or employment and shall not be removed therefrom, lowered
in rank or compensation, or suspended, or, without his consent, trans-
ferred from such office or employment to any other except for just cause
and for reasons specifically given in writing.

Section 2. The person sought to be remqved, suspended, lowered or
transferred shall be notified of the proposed action and shall be furnished
wit h a copy of the reasons required to be given by section one, and shall,
if he so requests in writing, be given a public hearing, and be allowed
to answer the charges preferred against him either personally or by
counsel. A copy of such reasons, notice and answer and of the order of
i-cnioval, suspension or transfer shall be made a matter of public record.

But the effect of these qualifications is rather a prescription
as to the method of enforcing the powers already possessed than
a curtailing of the powers. The statute quoted was amended by
St. 1905, c. 243, by adding to section 2 the following: —

provided, hoivever, that nothing contained in this act shall be construed
to prevent temporary suspension for a period not exceeding thirty days
made without compliance with the provisions of this act and pending
further action under this act.

DANA MALONE, ATTORNEY-GENERAL. 109

In my opinion there is nothing in these statutes which de-
prives the commission of the authority which it had under its
general powers to punish an ojfficer guilty of an offence by a
forfeiture of his pay for a period not exceeding thirty days, and
I therefore answer your first question in the affirmative.

The answer to your second question is embraced in the an-
swer to the first; but answering it upon the particular point
raised, as to whether such a forfeiture is a lowering of compen-
sation within the meaning of the statute cited, I am of opinion
that it is not. The compensation of an officer is not lowered,
within the meaning of the statute, unless the rate of compensa-
tion be lowered.

The provision in regard to increasing or diminishing tlic pay manifestly
refers to the salary which has been or may be established, and not to such
reductions as may occur through fines or forfeitures established to preserve
and promote the discipline and efficiency of the force. Morton, J., in
Malcolm v. Boston, 173 Mass. 321.

Your third question raises the point of the authority of the
commission over the members of its police force who are
veterans within the meaning of R. L., c. 19, § 20, and are there-
fore entitled by law to certain special privileges. The authority
of the commission over the veterans in its police force does not
differ from its authority over other members of the force, except
so far as that authority may have been qualified by statute.
The only modification of the general authority of the commis-
sion as above stated, so far as it applies to veterans, is in St.
1905, c. 1.50, amending R. L., c. 19, § 23, so as to read as
follows: —

No veteran who holds an office or employment in the public service
of tb.e commonwealth, or of any city or town therein, shall be removed
or suspended, or shall, without his consent, be transferred from, such
office or employment, nor shall his office be abohshed, nor shall he be
lowered in rank or compensation, except after a full hearing of which he
shall have at least seventy-two hours' written notice, with a statement
of the reasons for the contemplated removal, suspension, transfer, lowering
in rank or compensation, or abolition. The hearing shall be before the
state board of conciliation and arbitration, if the veteran is a state em-

170 OPINIONS OF THE ATTORNEY-GENERAL.

ployee, or before the maj^or of the city or selectmen of the town of wliich
he is an employee, and the veteran shall have the right to be present and
to be represented by counsel. Such removal, suspension or transfer,
lowering in rank or compensation, or such aboUtion of an office, shall
be made only upon a written order stating fully and specifically the cause
or causes therefor, and signed by said board, mayor or selectmen, after
a hearing as aforesaid.

In my opinion, none of the provisions of the act cited curtail
the authority which the commission had under its general
powers to impose upon a poUce officer, who is a veteran and has
been found guilty of an offence, a punishment not amounting to
a transfer of his office or employment, an abolition of his office
or a lowering of his rank or compensation without a hearing
before the State Board of Conciliation and Arbitration. I
therefore answer your third question in the affirmative.

The fourth question I answ^er in the negative. The transfer
of a police officer who is a veteran, from a reservation or park-
way in one tow^n to a reservation or parkway in another city or
town within the jurisdiction of the commission, assuming that
his service is that of police duty in each place, is not a transfer
of office or employment within the meaning of St. 1905, c. 150,
above cited. His office under the transfer is still that of a
police officer, and his employment is still that of police duty;
the officer himself has been transferred from one locality to an-
other, but there cannot be said to have been a transfer either of
office or employment, within the meaning of the act, the obvi-
ous purpose of which is to prevent changes of grade and
classification.

In reply to your inquiry as to the effect upon the legal obliga-
tions of a police officer to the commission, and upon the author-
ity of the commission over him, resulting from the signing of the
agreement quoted upon entering the service of the commission,
my opinion is that the signing of the agreement has little if any
effect upon the legal obligations of the officer to the commission,
and no legal effect upon the authority of the commission over
him. Even if the agreement was made by the officer for w^hat
can actually be proved to be a good consideration, it is hard to

DANA MALONE, ATTORNEY-GENERAL. 171

see any practical value to the commission in the technical civil
right thus acquired in addition to the greater rights which it
already possessed under its general authority, and it is clear
that it does not affect the authority of the commission over the
DfRcer.

By signing such an agreement the officer cannot, in my opin-
ion, be held to have waived any rights under the civil service
law. The civil service law applicable to the case is to be re-
garded as a general law, and an agreement to waive the provi-
sions of a general law of this nature is generally held to be
invalid as opposed to public policy. See Washington National
Bank v. Williams, 188 Mass. 103.

The only practical value of the signing of such an agreement
is that evidence is furnished that the officer, at the time of
SQtering the service of the commission, knew of the rules estab-
lished by it, which evidence might become material in any
hearing upon the case.

Insurance — Officer or Director of Insurance Company
— Investment of Funds.

By R. L., c. 118, § 25, relating to domestic insurance companies, it is provided that
"no officer of the company, and no member of a committee thereof, charged
with the duty of investing its funds, shall borrow the same or be directly or
indirectly liable for, or on account of, loans thereof to others;" and a director
of such an insurance company who is also a member of the finance committee
thereof violates such provision by renewing a mortgage loan or by giving a
new loan to trustees of a real estate trust of which such director was both a
trustee and a shareholder, the legal title to the trust estate being in the
trustees and the equitable title thereto in such persons as are for the time
being shareholders.

You ask my opinion whether a director of a domestic insur- to the
ance company, who was also a member of the finance committee commissioner.
and "charged with the duty of investing its funds," has violated June 3.
the provisions of R. L., c. 118, § 25, by (a) renewing a mortgage
loan to certain trustees of a real estate trust of which the di-
rector was both a trustee and a shareholder; and (6) making a
new loan to another real estate trust of which the director was
also a trustee and a shareholder.

OPINIONS OF THE ATTORNEY-GENERAL.

The dates of these occurrences are subsequent to the Revised
Laws, but prior to the going into effect of St. 1907, c. 576, and
consequently the question is one to be determined by the lan-
guage of the Revised Laws. This section provides in part that : —

No officer of the company and no member of a committee thereof
charged with the duty of investing its funds sliall borrow the same
or be directly or indirectly liable for or on account of loans thereof to
others; nor shall any director or other officer take or receive to his own
use any fee, brokerage, commission, gift or other consideration for or on
account of a loan made by or on behalf of such company.

Copies of the declarations of trust have been submitted to me.
In each declaration of trust the following provision appears: —

The trustees shall have no power to bind the shareholders personally.
In every written contract they may make, reference shall be made to this
declaration of trust. The person or corporation contracting with the
trustees shall look to the funds and property of the trust for the payment
under such contract, or for the payment of any debt, mortgage, judgment
or decree, or of any money that may otherwise become due or payable by
reason of the failure on the part of said trustees to perform such contract
in whole or in part, and neither the trustees nor the shareholders, present
or future, shall be personally liable therefor;

and each declaration of trust provides that the term "share
holder" shall mean holder of record of a receipt or a certificate
from the trustees thereunder. It is clear, I think, that the
whole legal title to the trust estate is in the trustees, and that
the whole equitable title is continuously in such persons as are
for the time being shareholders under the declaration of trust.
See Howe v. Morse, 174 Mass. 491, 503.

Copies of the mortgage notes have also been submitted to me,
from which it appears that the trustees under the declarations
of trust, to which reference was therein expressly made, did "as
trustees thereunder, but not individually, promise to pay" the
amount of the mortgage to the insurance company.

As was pointed out in the case of Bowditch v. Neiv England
Life Imurance Co., 141 Mass. 292, 295, referred to in your letter
to me, the statute under discussion — ^1

DANA MALONE, ATTORNEY-GENERAL. 173

is designed to forloid officers, who are charged with the dutj'- of investing
the funds of the corporation, borrowing of themselves, and thus to prevent
the risk of the funds being invested bjr them, under the promptings of
self-interest, upon insufficient securitj^ In other words, the purpose is to
protect the corporation and the policy holders from the dishonesty or
self-interest of the officers. It is intended as a shield to the corporation.

Adopting this exposition of the purpose of the statute, I am
of opinion that the director mentioned by 3'ou, charged with the
duty of investing the funds of a domestic insurance company,
has violated the provisions above quoted, inasmuch as he, as
trustee, and while an owner of shares in the trust, has borrowed
money of the corporation, and thus created a debt for which the
property of the trust is liable to be taken on execution. Al-
though the director is not apparently directly or indirectly per-
sonally liable for or on account of the loan, yet, as owner of
both the legal title and a portion of the equitable title of the
property which is directly liable, I conceive that he is brought
within the rule laid down in the case above cited, because the
loan might be made "under the promptings of self-interest,
upon insufficient security."

Subsequent to the doing of the acts referred to by you, the
law was changed by St. 1907, c. 576, § 26, which now provides
in part that: —

All investments and deposits of the funds of the company shall be made
in its corporate name, and no director or other officer thereof, and no
member of a committee having any authority in the investment or dis-
position of its funds, shall accept, or be the beneficiary of, either directly
or remotely, any fee, brokerage, commission, gift or other consideration
for or on account of any loan, deposit, purchase, sale, payment or exchange
made by or in behalf of such companj'', or be pecuniarilj'^ interested in any
such purchase, sale or loan, either as borrower, principal, co-principal,
agent or beneficiary except that if a policy holder he shall be entitled to all
the benefits accruing under the terms of his contract.

In my opinion, the acts of the director above set forth would
be clearly in violation of the law as it stands to-dav.

174 OPINIONS OF THE ATTORNEY-GENERAL.

State Highway — Defect or Want of Repair — Liability
OF Commonwealth — Construction or Repair — Use
OF Liquid Asphalt — Damage.

By the provision of R. L., c. 4t, § 13, that "the commonwealth shall be liable for
injuries sustained by persons while traveling on state highways in the manner
and subject to the limitations, conditions and restrictions provided in sections
eighteen, twenty and twenty-one of chapter fifty-one, except that notice of
the injury shall be given to a member of the commission or to its secretary,"
no liability is imposed upon the Commonwealth for damages to the person
or property of a traveler upon a State highway other than for damages caused
by reason of a defect or a want of repair or of a sufficient railing in or upon
such highway. To constitute such defect or want of repair there must be
something in the condition of the highway, either by reason of defective
construction or want of repair or in the nature of an obstruction, which is
dangerous to the safety of the person or property of the traveler; and where
the property of such traveler upon a State highway is damaged by splashes
of liquid asphalt used in connection with the construction or repair of such
highway, the statute above cited affords no remedy.

>ias'J^chu3etts The Massachusctts Highway Commission has referred to me
commTssion. foF siich action as I may deem proper certain claims for damage
June 16. to the Wearing apparel and vehicles of travelers upon State

highways, occasioned by preparations used in the repair and
maintenance of such highways. Of these claims, the case pre-
sented in the communication from one Leon Samuels appears
to be typical. The facts as stated by the claimant are: —

It appears that while going through a certain portion of the road which
was under repair, a part which was tarred over had proper signs theieon,
denoting that it was not open for travel; another part, however, which
was completely covered with dirt and gravel, had no such signs, thereby
indicating that it was open for travel. In crossing said supposedly com-
pleted part in her automobile, she [the wife of the claimant] was splashed
with tar which apparently had not hardened into condition to make the
road fit for traffic, and as a result her automobile coat, Panama hat, pair
of gloves and chiffon veil were completely ruined, and occasioned a loss
of SIOO.

Other claims are made by H. C. Poore and G. F. Saumsiegle,
respectively, for damages occasioned by liquid asphalt used in sur-
facing a State highway. In both of these cases the report of the
division engineer states that proper signs and warnings were dis-
played, calling attention to the condition of the road at the time.

DANA MALONE, ATTORNEY-GENERAL. 175

The liability of the commission is fixed by R. L., c. 47, § 13,
which is as follows : —

The commonwealth shall be hable for injuries sustained by persons
while traveUng on state highways, in the manner and subject to the
limitations, conditions and restrictions provided in sections eighteen,
twenty and twentj^-one of chapter fifty-one, except that notice of the
injiuy shall be given to a member of the commission or to its secretar}'.
The commonwealth shaU not be liable for an injury which may be sus-
tained upon the sidewalk of a state highway or during the construction
of such liighway. The amount wliich may be recovered for anj such
injury shall not exceed one-fifth of one per cent of the state valuation
last preceding the commencement of the action of the city or town in
which the injurj^ was received, nor shall it exceed four thousand dollars.

Section 18 of chapter 51 of the Revised Laws, above referred
to, is as follows: —

If a person sustains bodily injury or damage in his property by reason
of a defect or a want of repair or a want of a sufficient raihng in or upon
a way, causeway or bridge, and such injmy or damage might have been
prevented, or such defect or want of repah or want of railing might have
been remedied by reasonable care and diligence on the part of the county,
city, town or person by law obliged to repair the same, he may, if such
county, cit}', to^\^l or person had or, by the exercise of proper care and
dihgence, might have had reasonable notice of the defect or want of repair
or want of a sufficient railing, recover damages therefor from such county,
city, to'W7i or person; but he shall not recover from a county, city or
town more than one-fifth of one per cent of its state valuation last pre-
ceding the commencement of the action nor more than four thousand
dollars, and no action therefor shall be maintained by a person whose
carriage and the load thereon exceeds the weight of six tons.

It has been held that there is no liability upon a city or town
for damages to the person or property of a traveler upon its
ways, except such as is fixed and imposed by statute. Monies
V. Lyn7i, 121 Mass. 442. And such damage must be caused by
reason of "a defect or a want of repair or a want of a sufficient
raihng in or upon a way, causeway or bridge." The question
to be determined is, therefore, whether the application of liquid
asphalt or tar in connection with the construction of a highway

176 OPINIONS OF THE ATTORNEY-GENERAL.

in and of itself constitutes a defect or a want of repair in the
highway, within the meaning of the statute.

It is, I think, obvious that the application of the substance
above mentioned to the highway cannot constitute "a want of
repair," if, as must be assumed, it is a proper material to be
used in the repair and maintenance of the surface of a highway,
and is properly applied without negligence upon the part of .the
contractor or of the agents of the Commonwealth.

The statutes have nowhere defined what is to be considered
as a "defect."

The duty of a town is to make the highway safe and con-
venient for travelers. Raymond v. Lowell, 6 Cush. 524; Horfon
V. Ipsiuich, 12 Cush. 488. In the present case no question of
the safety of the traveler arises, since the injury is analogous to
that occasioned by the spattering of mud or water from the
moist surface of the highway, which latter does not constitute
a defect. See Stone v. Ilubbardsion, 100 Mass. 49, 56; McAidei
V. Boston, 113 Mass. 503; Williams v. Lawrence, 113 Mass
506; McGowan v. Boston, 170 INIass. 384. Taking all the cases
together, I am of opinion that, in order to constitute a defect
within the meaning of the statute, it is necessary that there
should be something in the condition of the highway, either h}
reason of defective construction or want of repair or in th(
nature of an obstruction, which is dangerous to the safety of th(
traveler, and not merely damaging to the appearance of hi;
attire or to the conveyance in which he travels. Here the roac
was properly posted, so as to draw the attention of the travelei
to its condition of recent repair and to put him upon his guarc
in passing across it, and the only result of the application o
the material by which damage was occasioned would have been
had these warnings been heeded, the inconvenience of seeking
another route of travel. For mere inconvenience, occasione(
even by a defect, there appears to be no remedy given under thi
statutes. Brailey v. Southhorough, 6 Cush. 141; Holman v
Townsend, 13 Met. 297, 299; Smith v. Dedham, 8 Cush. 522.

I am further of the opinion that even if the method of th,
application of the liquid asphalt to the way in question was im

DANA MALONE, ATTORNEY-GENERAL. 177

])roper or negligent npon the part of the contractor or agents of
the Commonwealth, such negligence would not make the exist-
ence of liquid asphalt upon the surface of the way a defect,
within the meaning of the statute. For mere negligence of
cities or towns, not constituting defects in the way, the statute
in question affords no remedy. See Billings v. Worcester, 102
Mass. 329, 333.

I am therefore of the opinion that the claims in these in-
stances have no basis in law, and that the Commonwealth is
not liable therefor.

Labor — Employment of Children — Child under Four-
teen Years of Age — Certificate of Ability to Read
AND Write — Factory or Workshop.

Under the provisions of R. L., c. 106, § 28, as amended bj^ St. 1905, c. 267, § 1,
that "no child under the age of fourteen years and no child who is over four-
teen and under sixteen years of age who does not have a certificate as required
by the following four sections certifying to the child's ability to read at sight
and to write legibly simple sentences in the English language shall be employed
in any factory, workshop or mercantile establishment," no school committee
or superintendent of schools or other person is authorized to issue to a child
under fourteen years of age the certificate above referred to, and such child
may not at any time be employed in a factory or workshop.

Your communication of recent date requests my opinion xo the
upon certain questions relative to the interpretation to be given Massachusetts
to R. L., c. lOG, § 28, as amended by St. 1905, c. 267, § 1. D'«*ftP°'-^-

The statute above referred to, as amended by St. 1905, c. 267,

§ 1, is as follows: —

No child under the age of fourteen years and no child who is over
fourteen and under sixteen years of age who does not have a certificate
' as required by the following four sections certifying to the child's ability
to read at sight and to wTite legibly simple sentences in the English
language shall be employed in any factory, workshop or mercantile es-
tablishment. No child under the age of fourteen years shall be employed
at work performed for wages or other compensation, to whomsoever pay-
able, during the hours when the public schools of the city or town in which
he resides are in session, or be employed at work before six o'clock in the
morning or after seven o'clock in the evening.

178 OPINIONS OF THE ATTORNEY-GENERAL.

A modification of St. 1905, c. 267, has, however, been made
by St. 1906, c. 284, § 2, which is as follows: —

Minors to whom said chapter two hundred and sixty-seven applies
shall be permitted to work on Saturdays between the hours of six in the
moniing and seven in the evening, in mercantile establisliments.

The specific questions upon which my opinion is required
are: —

Can d cMld under fourteen years of age, and who has a certificate from
the authorized school authorities certifying the child's ability to read at
sight and to wiitc logibly simple sentences in the English language, be
legally employed in any factoiy, workshop or mercantile establishment
during the hours when the public schools of the city or town in which he
resides are not in session?

If a child under fourteen years of age can read at sight and write legibly
simple sentences in the English language, can the school committee,
superintendent of schools, or person authorized by the school committee,
issue him a certificate as provided in section 32, chapter 106, Re\ised
Laws?

Since both questions refer to the possession by a child of a^
certificate issued by the school authorities certifying to the
ability of the child to read and write, it may simplify the issues
if I state at the outset that in my opinion the provisions of the
statutes quoted and the subsequent sections of chapter 106 of
the Revised Laws, relative to the certificate mentioned, have no
application whatever to a child under fourteen years of age.

It therefore follows that the fact stated in your first question,
that the child under fourteen years has a certificate of ability to
read and write, can have no bearing upon the question as to the
legality of the employment of the child in a factory, workshop
or mercantile establishment during the hours when the public
schools of the city or town in which he resides are not in sessionj

By the provisions of R. L., c. 106, § 28, as amended by St.1
1905, c. 267, § 1, quoted above, the employment of any childl
under fourteen years of age in any factory, workshop or mer-
cantile establishment, was absolutely prohibited.

The employment of a child over fourteen years of age, but

DANA MALONE, ATTORNEY-GENERAL. 179

inder sixteen, was prohibited, unless that child had attained to

prescribed degree of education, and could obtain a certificate
rom the proper authorities certifying to that fact.

The obvious intent of the statute was to preserve the original
(revision of the statute preventing the employment of a child
inder fourteen years of age, under any circumstances, in a work-
hop, factory or mercantile establishment; and, further, to pro-
ide additional opportunity for the education of children by
reating a second class of children, consisting of those more
han fourteen but less than sixteen years of age, who might not
>e employed in the establishments specified until they were able
0 pass a prescribed educational test.

Construing the provisions of the statute, therefore, in accord-
nce with the clear purpose of the act, it is obvious that the
)rovisions relative to the educational qualification refer only to
he second class mentioned, — the children between fourteen
ind sixteen years of age.

Construing the provisions of the statute according to the well-
ecognized rule of statutory construction, — that a limiting
:lause is to be confined in its application to the last antecedent
mless the subject-matter of the act requires a different con-
truction, — the same conclusion is reached.

The modification of St. 1905, c. 267, by St. 1906, c. 284, § 2,
quoted above, permits the employment of the minors to whom
5t. 1905, c. 267, applies, on Saturdays between the hours of 6 in
;he morning and 7 in the evening in mercantile establishments,
md leaves unchanged the law as to employment in factories and
vorkshops.

Upon your first question, therefore, my opinion is that a child
mder fourteen years of age may not be employed in a factory
)r workshop at any time, and may be employed in a mercantile
establishment only on Saturdays between the hours of 6 in the
norning and 7 in the evening.

Upon your second question my opinion is, that no school
.'ommittee, superintendent of schools or other person is author-
zed by the statutes to issue to a child under fourteen years of
ige a certificate under the provisions of R. L., c. 106, § 32.

July 9.

180 OPINIONS OF THE ATTORNEY-GENERAL,

Proprietary or Patent Medicines — Label — Fractional
Part of Original Package — Prosecution — Public
Notice — State Board of Health.

St. 1906, c. 386, as amended by St. 1907, c. 259, providing in section 1 that "upon
every package, bottle or other receptacle holding any proprietary or patent
medicine . . . shall be marked or inscribed a statement on the label of the
quantity or proportion of each of said substances contained therein," requires
that the container of fractional parts sold from the original package by pre-
scription shall be also marked with the prescribed label.

The provision of St. 1906, c. 386, § 6, as amended by St. 1907, c. 259, that the State
Board of Health shall not cause the prosecution of persons violating the
provisions of such act "for the sale at retail or for the gift or exchange of any
patent or proprietary medicine or food preparation containing any drug or
preparation the sale of which is prohibited or restricted as aforesaid," until
after public notice, is not applicable to sales of unlabeled quantities.

sute Board ^'^^ Fcquest my opinion as to the construction to be given

°mf'^' to St. 1906, c. 386, as amended by St. 1907, c. 259. Section 1

of the amended act, so far as it is material upon the questions

presented, is as follows : —

Upon every package, bottle or other receptacle holding any proprietary
or patent medicine, or any proprietary or patent food preparation, which
contains alcohol, morphine, codeine, opium, heroin, chloroform, cannabis
indica, chloral hydrate, or acetanilid, or any derivative or preparation
of any such substances, shall be marked or inscribed a statement on the
label of the quantity or proportion of each of said substances contained
therein. The size of type in which the names of the above substances
shall be printed on the labels as above, shall not be smaller than eight
point (brevier) caps: provided, that in case the size of the package will
not permit the use of eight point cap type the size of the type may be
reduced proportionately. The provisions of section nineteen of chapter
seventy-five of the Revised Laws, so far as they are consistent herewith,!
shall apply to the manner and form in which such statements shall bei
marked or inscribed.

Section 3 prohibits the sale of any patent or proprietary med-
icine containing certain substances.

Section 4 prohibits the sale of certain drugs except under cer-
tain restrictions.

Section 5 exempts certain classes from the prohibitions of sec-
tions 3 and 4. »

DANA MALONE, ATTORNEY-GENERAL. 181

Section 6 is as follows : —

Whoever manufactures, sells or offers for sale any medicine or food
reparation in violation of the provisions of this act shall be punished
y a fine of not less than five nor more than one hundred dollars. It
hall be the duty of the state board of health to cause the prosecution
f all persons violating the provisions of this act; but no prosecution shall
e brought for the sale at retail, or for the gift or exchange of any patent
r proprietary medicine or food preparation containing any drug or
reparation the sale of which is prohibited or restricted as aforesaid,
nless the said board has, prior to such sale, gift or exchange, given public
otice in such trade journals or newspapers as it may select that the
ift, exchange or sale at retail of the said medicine or food preparation
■Quld be contrarj^ to law.

You state that a number of retail druggists have asked
rhether it is necessary for them, within the meaning of the
hove statute, to label with the prescribed label fractional parts
old from the original package by prescription; and they have
lointed out the practical difficulty in carrying a stock of labels
dT the very large variety of patent medicines which they are
bliged to sell.

It seems to me that the law requires the labeling of the con-
ainer of fractional parts of the original package. The language
■f the act is very comprehensive, — " every package, bottle or
'ther receptacle holding any proprietary or patent medicine."
-^hese words must be given their ordinary meaning, unless some
eason appears for giving them a different meaning. If the
-legislature had intended the act to apply only to original pack-
ges, it would have been easy so to limit the scope of the act.
Che words should also be interpreted in such a way as to carry
tut what appears to have been the intent of the Legislature.
Che most obvious and natural purpose of the act is the protec-
ion of all who are to buy the patent and proprietary medicines,
t cannot have been the intent of the Legislature to protect
•nly the druggists dealing in these medicines; and yet, if a
ractional part of the original package is not to be marked,
he public are no better informed as to the ingredients of
vhat they are buying than they were before the passage of

182 OPINIONS OF THE ATTORNEY-GENERAL.

the act, unless they take pains to ask to be shown the original
package.

As to the second point, by section 6 the seUing without label
of patent or proprietary medicines in any quantity is made a
distinct offence with a fixed penalty, and the offender is liable
to a penalty upon the commission of the offence. The clause o)
the statute referring to prosecution after public notice refers tc
the sales prohibited and restricted by sections 3 and 4, which dc
not include and are not to be construed as connected with the
sale of an unlabeled quantity.

Public Officer — Register of Deeds — Official Bond.

A bond given by the register of deeds of a county to the county commissioner;
thereof, and running to such commissioners, does not satisfy the requiremen
of R. L., c. 22, § 7, that "each register shall give bond to the county for th(
faithful performance of his official duty, with such sureties and in such mm
as the commissioners or mayor [in the county of Suffolk] respectively shal
approve."

Controller Replying to your letter, in which you ask whether it is im-

AcSS* perative that a bond of a register of deeds run to the treasurei

September 20. of thc couuty, or whether a bond given to the county commis-

sioners is sufficient, I have to inform you that the statute

applicable to the matter is R. L., c- 22, § 7, which reads as

follows : —

Each register of deeds, except in the county of Suffolk, shall be sworn
before the county commissioners and, in the county of Suffolk, before
one or more of the aldermen of the city of Boston. Each register shall
give bond to the county for the faithful performance of his official duty
Avith such sureties and in such sum as the commissioners or mayor, re-
spectively, shall approve.

It is therefore necessary that to comply with the statute the
bond in question should run to the county of Dukes County,
and not to either the county commissioners or the county treas-
urer. I therefore must advise you that all public officials
should be required to give bonds strictly complying with the

DANA MALONE. ATTORNEY-GENERAL. 183

•ovisions of the above statute, and bonds not in statutory
rm should not be held by the supervising authorities to be
ifficient or accepted as such.

i.viNGS Banks — Authorized Investments — Bonds, Cou-
pon Notes or Other Evidences of Indebtedness of the
New York, New Haven & Hartford Railroad Com-
pany.

mds, coupon notes or other evidences of indebtedness of the New York, New
Haven &. Hartford Railroad Company, a corporation chartered by the laws
of this Commonwealth, payable more than twelve months after the date of
issue and issued prior to the passage of St. 1908, c. 620, in excess of the capital
stock of such railroad corporation, which do not fall within any of the excep-
tions set forth in St. 1906, c. 463, part II., § 66, are issued in violation of the
provision of such section that "a railroad corporation, unless expressly
authorized by its charter or by special law, shall not issue bonds, coupon
notes or other evidences of indebtedness payable at periods of more than
twelve months after the date thereof to an amount which, including the
amount of all such securities previously issued and outstanding, exceeds in
the whole the amount of its capital stock at the time actually paid in ;" and such
bonds, coupon notes or other evidences of indebtedness not being "issued
according to law," within the meaning of R. L., c. 113, § 26, cl. 3, h, are not
legal investments for savings banks in this Commonwealth.

You request my opinion as to whether the issue of New To the Bank

^ 1/ X- Commissioner.

ork, New Haven & Hartford Railroad Company 6 per cent. October 12
ibenture bonds is a legal investment for Massachusetts^savings
inks.
R. L., c. 113, § 26, relating to savings banks, provides: —

Deposits and the income derived therefrom shall be invested only as
Uows: —

Third, . . .

h. In the bonds and notes of the New York, New Haven and Hartford
ailroad Company issued according to law, notwithstanding the e.xistence
1 the twenty-first day of March in the year eighteen hundred and ninety-
X of a mortgage indebtedness not then matured upon the whole or a part

the road of said company.

This provision was first enacted in St. 1896, c. 178. I am
ot aware that it has ever been passed upon by our Supreme
"ourt or by the Attorney-General.

184 OPINIONS OF THE ATTORNEY-GENERAL.

Section 65 of part II. of chapter 463 of the Acts of 1906,
wliich provides for the determination by the Board of Railroad
Commissioners of the reasonable necessity of any proposed issue
of railroad stock, bonds or notes payable at periods of more
than twelve months from date, contains also a provision that: —

The provisions of this section shall not require the approval of the
board of railroad commissioners to the issue of capital stock or bonds,
or of coupon notes or other evidences of indebtedness as aforesaid, author-
ized by law of this commonwealth, the proceeds of which are to be expended
in another state or countiy, or wliich are to pay for borrowed money
expended in another state or country.

Section 66 provides that : —

A railroad corporation, unless expressly authorized by its charter or
by special law, shall not issue bonds, coupon notes or other evidences of
indebtedness payable at periods of more than twelve months after the
date thereof to an amount which, including the amount of all such securi-
ties previously issued and outstanding, exceeds in the whole the amount
of its capital stock at the time actually paid in; but this limitation shall
not apply to the issue of bonds for the purpose of paying and refunding
at maturitj^ bonds lawfully issued prior to the second day of June in the
year eighteen hundred and ninety-seven; nor shall it apply to such of
the bonds issued or to be issued under a mortgage as are deposited to
retire at or before maturity bonds or other evidences of indebtedness
previously issued and outstanding at the date of such mortgage, and as
do not exceed the par value of the funded or other debt so to be retired;
and such corporation shall not issue the securities specified in this section
unless authorized by a vote of its stockholders at a meeting called for the
purpose.

The fact that the excepting clause of section 65 is omitted
from section 66 seems to indicate that the latter section was in-
tended to apply to the issue of all evidences of indebtedness,
payable at periods of more than twelve months, of railroads
chartered by this Commonwealth, irrespective of the purposes
for which the money raised by such issue is to be expended,
whether in another State or country or in this Commonwealth.
Section 66 provides that the amount, including the amount of
all such securities previously issued and outstanding, with cer-

DANA MALONE, ATTORNEY-GENERAL. 185

;ain exceptions, shall not exceed in the whole the amount of a
•ailroad's capital stock at the time actually paid in. From a
nemorandum furnished me of the capital stock issued and out-
standing of the New York, New Haven & Hartford Railroad
IJompany, the amount of bonds, coupon notes or other evi-
lences of indebtedness payable at periods of more than twelve
nonths after the date thereof, issued prior to the issuance of the
) per cent, debenture bonds about which you inquire, appears
0 be largely in excess of the capital stock actually paid in. It
nay be that some of these bonds come within the exceptions
nentioned in section 66, but, unless this is so, the issue would
lot be duly authorized in this Commonwealth under the provi-
ions of St. 1906, c. 463, part H., § 66, above quoted, as it
rould be in excess of the capital stock paid in. Consequently,
he bonds so issued would not be legal investments for savings
)anks, because they would not be "issued according to law,"
vithin the meaning of R. L., c. 113, § 26, cl. 3, h.

In my opinion, it makes no difference for what purpose the
)roceeds of such issue are to be used, whether within or without
he Commonwealth. See Attorney-General v. Neiv York, Neiv
'{men & Hartford Railroad Co., 198 Mass. 413.

Having received no information as to the amount of bonds
ailing within these exceptions in the case of the New York, New
laven & Hartford Railroad Company, I make no final decision
dth respect to the debentures under discussion, but merely
idvise you as to the principles of law to be applied in determin-
ng the cases presented to you after the facts have been fully
.scertained.

My attention has been called to chapter 590 of the Acts of
908, relative to savings banks, and chapter 620 of the Acts
•f 1908, relative to railroad securities. Neither of these statutes
lowever, affects the present question, the latter because it did
lot take effect until June 12, 1908, which was subsequent to the
late of the issue of the debenture bonds under discussion, and
he former because it provides (as does the section of the Re-
'ised Laws above quoted) that railroad securities, to be valid
nvestments, must be bonds or notes issued "in accordance with

180 OPINIONS OF THE ATTORNEY-GENERAL.

the laws of this Commonwealth." See St. 1908, c. 590, part V.,

§ G8, cl. 3, a.

As a general principle, I would say that bonds, coupon notes
or other evidences of indebtedness payable at periods of more
than twelve months after their date, issued in excess of the
capital stock of a railroad corporation, would not be issued in
accordance with the laws of this Commonwealth, and conse-
quently would not be legal investments for savings banks in
Massachusetts, whether the proceeds of such issue are to be
used within or without the Commonwealth. See Common-
icealth V. Smith et als., 10 Allen, 448.

Master in Chancery — Removal from County — Vacancy
— Appointment — Governor.

It is the duty of the Governor, under the provisions of R. L., c. 165, § 52, to appoint
masters in chancery as vacancies occur, "so that the number thereof in the
several counties shall be eleven in Suffolk, nine in Essex, seven in Middlesex,
seven in Worcester and not more than five in any other county;" and where
a master in chancery appointed for the county of Middlesex removes there-
from with the intention of permanently residing elsewhere, a vacancy is
created in the list of such officers for such county, which the Governor is
authorized to fill by appointment.

Governor. Through the executive secretary you, inquire whether or not

October 19. a master in chancery appointed under the provisions of R. L.,
c. 165, § 52, for the county of Middlesex, and who thereafter
removes from Middlesex County to Suffolk County, by such
removal vacates the office held by him, so that the appointment
by the Governor of an additional master in chancery to be cred-
ited to Middlesex County would be warranted.
R. L., c. 165, § 52, is as follows: —

The governor, with the advice and consent of the council, shall, as
vacancies occur, appoint masters in chancery so that the number thereof
in the several counties shall be eleven in Suffolk, nine in Essex, seven in
Middlesex, seven in Worcester and not more than five in any other county.
They shall be sworn, and shall hold their offices for a term of five years,
unless sooner removed h\ the governor and council.

DANA MALONE, ATTORNEY-GENERAL. 187

By St. 1904, c. 348, the number of masters in chancery for
Middlesex County was increased to eleven.

The obvious purpose of the statute above quoted was to pre-
serve in the several counties named therein the designated num-
ber of masters in chancery, who should there perform the duties
imposed upon them by statute, in order that the convenience of
residents of such counties might be properly served, and that
opportunity might be given to gain access to a master in chan-
cery whenever necessity might arise.

I am therefore of opinion that where a master in chancery
appointed for Middlesex County removes therefrom and resides
elsewhere, a vacancy is created in the list of masters in chancery
for such county, and that the Governor is authorized to appoint
a master in chancery to fill such vacancy. My opinion is not
affected by the provisions of St. 1906, c. 187, which has con-
ferred upon masters in chancery jurisdiction to act throughout
the Commonwealth, and has provided that their commissions
should be "issued for the Commonwealth," for the reason that
the requirement of residents of the several counties as masters
in chancery therein is equally strong, whether or not the juris-
diction of such officers extends throughout the Commonwealth.

Corporation — Foreign Corporation — Usual Place of
Business within the Commonwealth.

A foreign corporation engaged in the business of operating mines beyond the limits
of the Commonwealth, which maintains an office within the Commonwealth
as a place for meetings of its board of directors, has a usual place of business
therein, within the meaning of St. 1903, c. 437, § 58, and must comply with
the requirements of sections 58-60 of such chapter.

You ask my opinion on the question as to whether the Bing- To the Com-

, "" . , ^ missioner of

ham Metal Mmmg Company, a corporation organized under Corporationa.
the laws of the State of Maine, is doing business within this October^26.
Commonwealth so as to be subject to chapter 437 of the Acts
of 1903, by reason of the following facts: —

1. It is a foreign corporation, operating mines in the State of
Utah, where all of its mining business is transacted.

KS8 OPINIONS OF THE ATTORNEY-GENERAL.

2. It has rented an office in Boston, and owns office furniture
therein.

3. The purpose of the Boston office is simply to have a place
for meetings of its board of directors.

4. It also has an account with a Boston bank.

You ask: "Upon this statement of facts, is it my duty to
require the Bingham Metal Mining Company to file the usual
papers under sections 58-60 of chapter 437 aforesaid?"

The question is a close one, but I am inclined to the opinion
that the corporation has such a usual place of business. The
original statute imposing a tax on mining companies incorpo-
rated elsewhere and doing business outside the Commonwealth
applied to a corporation "having an office or place of business
within the Commonwealth for the direction of its affairs or
transfer of shares." St. 1865, c. 283, § 8. Such corporations
were required to semiannually make returns to the Tax Com-
missioner, and to pay to the Treasurer of the Commonwealth a
tax of one-twentieth of one per cent, upon the par value of the
capital stock. This provision appears in Pub. Sts., c. 13, § 43.
By St. 1882, c. 106, a foreign corporation engaged in mining,
" which shall for any period exceeding ten days establish, set up,
have or keep principal or branch, subscription, treasury or trans-
fer office or agency within this Commonwealth," was required to
file a certificate setting forth the name of the corporation, etc.,
and to pay a tax. In R. L., c. 14, § 51, it was provided that a
foreign corporation engaged outside the Commonwealth in min-
ing, and having "a usual place of business in this common-
wealth," should make a semiannual return to the Tax Commis-
sioner, and pay a tax.

The history of the statute seems to indicate that the corpora-
tions which were originally included in St. 1865, c. 283, § 8,
were intended to be included within R. L., c. 14, § 51; that is,
that the phrase "usual place of business" used in the Revised
Laws is broad enough to include corporations which had within
this Commonwealth offices used solely for directors' meetings or
transfer offices. There is certainly no indication of any intent
to change the law.

DANA MALONE, ATTORNEY-GENERAL. 189

The business corporation act, St. 1903, c. 437 (§ 95), ex-
pressly repeals R. L., c. 14, § 51. The provisions of this act,
however, so far as they are the same as those of statutes existing
at the time of its passage, are to be construed as a continuation
of those statutes. The words "usual place of business" occur in
section 58 of the later act, and are to be construed as- they were
to be construed under the earlier act. If, therefore, the Bing-
ham Metal Mining Company w^as within the provisions of R. L.
c. 14, § 51, it is also, in the absence of anything to indicate a
contrary intention, within the provisions of St. 1903, c. 437,
§§58-60.

I think, therefore, that it is your duty to require the Bingham
Metal Mining Company to file the usual papers under sections
58-60 of chapter 437 aforesaid.

Fisheries and Game — Pursuit of Wild Fowl — Launch or

Power Boat.

The shooting of wild fowl from a launch or power boat, which has been used to
reach a place frequented by such wild fowl, and is there anchored, constitutes
a violation of the provisions of R. L., c. 92, § 11, as amended by St. 1906,
c. 241, which forbids the pursuit of wild fowl "with or by aid of a boat pro-
pelled by steam or naphtha, or of a boat or vessel propelled by any mechan-
ical means other than sails, oars or paddles."

In a letter of recent date your Board requests my opinion ^^^j^^
as to whether it would be a violation of R. L., c. 92, § 11, as onFiTher'^r"
amended by St. 1906, c. 241, "if a resident of Gloucester ^^ loos"''

November 12.

should go out on Gloucester Bay in a steam launch, anchor it,
set decoys, shoot out of the boat, and get the dead birds by
means of a row boat."

So far as material, the statute above cited provides that
"whoever . , . pursues any wild fowl with or by the aid of a
boat propelled by steam or naphtha, or of a boat or vessel pro-
pelled by any mechanical means other than sails, oars or pad-
dles, . . . shall be punished by a fine of not exceeding twenty
dollars for each offence."

In my opinion, the act described would constitute a violation
of this provision.

ion OPINIONS OF THE ATTORNEY-GENERAL.

The obvious intent of the statute is that the hunter shall not
be able to get a greater advantage over the game which he is
pursuing than he is able to obtain without the aid of a power
boat or similar mechanical means.

In the case stated, the pursuit of the birds was begun when
the hunter started from home; and, although the hunter has
brought his power boat to a stop before shooting, and perhaps
has completed the pursuit of the game by row boat, he has,
nevertheless, pursued the birds with or by the aid of the power
boat, and is therefore within the prohibitions of the statute.

Civil Service — Exemption — Heads of Principal Depart-
ments OF a City — City Bookkeeper.

The office of city bookkeeper, established by the charter of the city of North Adams
(St. 1895, c. 148), does not constitute the incumbent the head of any principal
department in the governmental organization of such city, and, in the absence
of other grounds for exemption, is within the operation of civil service rule
VII., class 4, which includes "bookkeepers and persons doing similar work
in the service of the Commonwealth and of any city thereof."

cfvii'service ^^^ inquire whether the office of city bookkeeper, established
dommbsion. by the city charter of the city of North Adams (St. 1895, c. 148,
Docemb_er4. | 34)^ ^^^^^ ^j^j^j^ ^.^jj ^^^^j^^ ^^^^ yjj^ ^j^^^ 4, — " book-
keepers and persons doing similar work' in the service of the
Commonwealth and of any city thereof." You cite, as appli-
cable to the office of bookkeeper, the following provisions, to be
found in the city charter of North Adams, viz.: —

Section 34. There shall be the following administrative officers, who
shall be appointed by the mayor and who shall perform the duties by
law^ and hereinafter prescribed for them, respectively, and such further
duties not inconsistent with the nature of their respective offices as the
city council may prescribe. . . . VIII. A city bookkeeper, who shall
also be clerk of the board of public w^orks. and shall keep the accounts of
all the departments as herein otherwise provided. . . .

Section 43. All city officers not hereinbefore mentioned shall perform
such duties as are or may be from time to time prescribed by law, and
such other duties, not inconsistent herewith or with general laws, as the
council may from time to time prescribe.

DANA MALONE, ATTORNEY-GENERAL. 191

Section 44. The administrative officers and boards above-named in
his title, and all administrative officers and boards hereafter established
y the city council and not coming within the department of anj'' officer
r board so above-named, shall have the power, except as herein otherwise
■rovided, to appoint or employ and to remove or discharge, all officers,
lerks and employees in their respective departments. Such appointments
hall not be for any specified term but shall hold good until removal or
ischarge. . . .

A city bookkeeper is obviously within the scope of the civil
ervice law and rules, unless he is exempted by section 9 of
hapter 19 of the Revised Laws, which provides as follows: —

Judicial officers and officers elected bj^ the people or by a city council,
ir whose appointment is subject to confirmation by the executive council
ir city council of any city, officers elected by either branch of the general
curt and the appointees of such officers, heads of principal departments
)f the commonwealth or of a city, the employees of the treasurer and
eceiver-general, of the board of commissioners of savings banks, and of
.he treasurer and collector of taxes of any city, two employees of the
nty clerk of anj'- city, teachers of the public schools, the secretaries and
•onfidential stenographers of the governor, or of the mayor of any city,
3olice and fire commissioners and chief marshals, or chiefs of police and
ire departments, shall not be affected as to their selection or appointment
)y any rules made as aforesaid; but, with the above exception, such
•ules shall apply to members of police and fire departments.

Although it is not specifically so stated, I assume that the city
bookkeeper is not an officer whose appointment is subject to con-
firmation by the city council of North Adams, and that if ex-
empted at all it is because he comes within the provisions
exempting the heads of principal departments of a city. A de-
partment is defined to be "a distinct part of a governmental
organization; a branch of government." Thus, in the Consti-
tution of Massachusetts, article 30 of the Bill of Rights, the
word "department" is applied to the legislative, judicial and
executive powers. A principal department of a city is one of
the several divisions of governmental organization into which
the government of a city readily separates itself. Broadly
speaking, those departments would be the executive, as repre-
sented by the mayor; the legislative, as represented by the city

192 OPINIONS OF THE ATTORNEY-GENERAL.

council; and the administrative, as represented by administra-
tive officers appointed by the mayor or elected by the city
council. Undoubtedly, however, the statute had particularly in
view certain principal and easily recognized divisions in the
administrative department of a city; such as, for instance, the
division relating to public works, the division including the care
and maintenance of the poor, and certain other distinct fields
for administrative activity. See Attorney-General v. Trehy, 178
Mass. 186.

Upon this definition it is obvious that the office of city book-
keeper, as established by the charter of the city of North Adams
does not constitute the incumbent the head of any principal
department of the governmental organization of the city, and,
in the absence of other grounds for exemption, such officer
would be subject to the civil service law and rules.

Inspection of Buildings — Sanitation and Ventilation —
Inspection Department of District Police.

Under the provisions of St. 1907, c. 537, § 5, and St. 1908, c. 369, the inspection
department of the Massachusetts District Police has no jurisdiction over
matters of sanitation or ventilation in buildings subject to inspection, other
than to order changes in construction for ventilating or sanitary purposes,
when the necessity therefor is reported to such department by the State
Board of Health. /

Chief of the ^- ^^^"^ letter of November 6 you require my opinion upon

dXc'i'poUcc. t^^t^ question whether or not, under the existing laws, the in-
Decembcrii. spcctors of factoHes and public buildings in the inspection
department of the District Police are authorized or required to
take any independent and initial action with respect to the
inspection of ventilation and sanitary appHances in public
buildings.

Under the provisions of Pt. L., c. 104, § 41, and c. 106,
§§ 41-45, inclusive, all jurisdiction with respect to matters of
sanitation and ventilation in public buildings was vested in the
factory inspectors of the District Police. This authority was,
however, specifically repealed by St. 1907, c. 537, § 5, which is
as follows : —

DANA MALONE, ATTORNEY-GENERAL. 193

The state inspectors of health shall, under the direction of the state

)ard of health and in place of the inspection department of the district

)lice, enforce the provisions of section forty-one of chapter one hundred

id four of the Revised Laws so far as said section provides that factories

all be well ventilated and kept clean, sections forty-one, forty-four

d forty-seven to sixty-one, inclusive, of chapter one hundred and six

the Revised Laws, chapter three hundred and twenty-two of the acts

the year nineteen hundred and two, chapter four hundred and seventy-

e of the acts of the year nineteen hundred and three, chapter two

ndred and thirty-eight of the acts of the year nineteen hundred and

e, and chapter two hundred and fifty of the acts of the year nineteen

ndred and six; and the powers and duties heretofore conferred and im-

sed upon the members of said inspection department of the district

lice by section eight of chapter one hundred and eight of the Revised

ws in respect to the foregoing sections and acts, and in respect to all

:s in amendment thereof or in addition thereto, and in respect to any

ler laws, are hereby conferred and imposed upon said state inspectors

health or such other officers as the state board of health may from

1 16 to time appoint : provided, however, that neither said board of health

I r any inspector thereof shaU have authority to require structural

i erations to be made in buildings, but shall report the necessity therefor

■ the inspection department of the district police. Wherever in said

] )visions of law the words "inspector" or "inspectors" of factories and

Wic buildings, "inspection department of the district police," "in-

i ictor" or "inspectors" of the district police, "district pofice," "factory

i pector" or "inspectors," and "member" or "members" of the district

] ice occur, they shall be taken to mean state inspector or inspectors

( health. Wherever the words "chief of the district police" occur, they

i ill be taken to mean the state board of health.

While this section is inartificial and in some respects obscure
i to construction, it is not necessary for the purposes of this
i [uiry to go beyond the express repeal of the sections of chap-
t s 104 and 106 of the Revised Laws, above quoted. Upon the
aproval of this act, the duties and powers theretofore vested in
t ' members of the inspection department of the District Police
■V re transferred to and imposed upon the State inspectors of
1 dth, or such other officers as the State Board of Health might
a )oint.

St. 1907, c. 537, was in effect amended by St. 1908, c. 389,
e.itled "An Act to define the powers and duties of the in-

194 OPINIONS OF THE ATTORNEY-GENERAL.

specters of factories and public buildings," Such inspectors
were given the power to enter any building, structure or enclo-
sure, for the purpose of examining the methods of prevention of
fire, means of exits and means of protection against accidents;
and they were further authorized to make investigations as to
the employment of children, young persons and women, "except
concerning health and the influence of occupation upon health."
They may also enter any public building and public or private
institution or schoolhouse, church, theatre, or other place of
public resort, and make such investigations and order such
structural or other changes as may be necessary in connection
with the construction, occupation and heating appliances and
conditions, but they are expresslj^ forbidden to order changes
for ventilating or sanitary purposes. The section then proceeds:
"provided, however, that they may order structural changes for
any purpose whenever the necessity therefor has been reported
in accordance with the provisions of section five of chapter five
hundred and thirty-seven of the acts of the year nineteen hun-
dred and seven." The provision of St. 1907, c. 537, § 5, re-
ferred to, relates to notice from the State Board of Health, and
has already been quoted.

It results, from this proviso, that, while the inspectors of fac-
tories have no powers to investigate, inspect or upon their own
initiative order changes in methods of ventilation in buildings 1
subject to their jurisdiction, it becomes their duty, upon report
of the State Board of Health, to order such changes as may be
deemed proper in the premises.

From a consideration of the statutes above referred to, it
clearly follows that the only connection with matters pertaining
to sanitation or ventilation which the inspection department of
the Massachusetts District PoHce still retain is the single duty
to order structural changes in buildings for ventilating and san-
itary purposes when the necessity therefor is reported to the
inspection department of the District Police bv the State Board
of Health.

DANA MALONE, ATTORNEY-GENERAL. 195

Corporation — Purpose of Organization — Buying and
SELLING Real Estate.

The Commissioner of Corporations has no authority to approve the incorporation
of certain persons for the purchase of waste, undeveloped or partially devel-
oped lands with a view to their development and sale, such purpose being
forbidden by St. 1903, e. 437, § 7, as amended by St. 1906. c. 286, § 1, that
"three or more persons may associate themselves . . . with the intention
of forming a corporation under the general laws for any lawful purpose . . .
except to buy and sell real estate."

In a letter of Jan. 21, 1909, you have requested my opinion Tothe
IS to whether or not you have authority to approve the incor- of Corpora-

Doration of certain persons for purposes as follows : —

To buy and make waste, undeveloped and partially developed land
nto useful property; to survey and divide the same into building lots
md roads, to build factories thereon and sell, or develop a manufacturing
jusiness in the same, or improve it in any other way; to accept pay
herefor in stocks, or mortgages. To sell houselots for cash, or on land
;ontracts, or bonds. To establish parks and pleasure grounds on the
iame, and to make, vend, buy and sell any and all kings of manufactured
irticles and to do any and all other things necessary or convenient to
;arry out the general purposes specified, so far as the same shall not
;onflict with the laws of the Commonwealth.

The provision of the statute upon the subject is clear and
iefinite. St. 1903, c. 437, § 7, as amended by St. 1906, c. 286,
provides as follows : —

Three or more persons may associate themselves by a written agree-
nent of association with the intention of forming a corporation under
■he general laws for any lawful purpose which is not excluded by the
)rovision of section one except to buy and sell real estate.

Among the purposes of the proposed corporation is the pur-
)ose to buy and sell real estate, which is obviously not a pur-
)ose for which incorporation is permitted by the statute.

In my opinion, therefore, you are quite correct in your ruling
0 the effect that you had no authority to approve of the incor-
Doration proposed for the purposes described.

tions.

1909
January 21.

19G

OPINIONS OF THE ATTORNEY-GENEKAL.

To the
State Board
of Health.

1909
January 22.

Boards of Health — Causes of Sickness — Contagious
Diseases — Right to enter Schools — Inspectors of
Health.

A local board of health may, under its general authority conferred by R. L., c. 75,
if in fact a contagious disease as a cause of sickness is found in a school, or if
such board has reasonable and proper grounds for believing that a contagious
disease may be found therein, enter such school and make all necessary
examinations in the premises, and, if pupils suffering from contagious diseases
dangerous to the public health are found, may remove such pupils to a hospital
or quarantine station, but, in the absence of any reasonable grounds for
believing that contagious disease existed in a school, such board or its agents
would have no authority to enter therein for the purpose of making an exami-
nation of the physical condition of the pupils in attendance.

State inspectors of health, acting under their general powers as defined in St. 1907,
c. 537, § 3, providing that such inspectors "shall gather all information
possible concerning the prevalence of tuberculosis and other diseases dangerous
to the public health within his district," would not be authorized to enter a
school or hospital for the purpose of making a physical examination of in-
di^^dual pupils or patients.

You require my opinion upon the question "whether a local
board of health, or its agents, acting under its general powers
in investigating causes of sickness within its town and removing
or preventing the same, has authority to enter public schools
for the purpose of detecting causes of sickness, and, in case of
discovery of infection in a pupil, to exclude such pupil from the
school, and to make such further quarantine regulations as it
may in case of disease in a house for' the protection of the
public."

I assume that your inquiry is directed to the exercise by local
boards of health of the general powers conferred upon such
boards, with respect to causes of sickness, by R. L., c. 75, § 65,
which is as follows : —

The board of health shall examine into all nuisances, sources of filth
and causes of sicloiess within its town, or on board of vessels within the
harbor of such town, which may in its opinion be injurious to the pubhc
health, shall destroy, remove or prevent the same as the case may require
and shall make regulations for the public health and safety relative
thereto and relative to articles which are capable of containing or convey-
ing infection or contagion or of creating sickness which are brought into
or conveyed from its town, or into or from any vessel. Whoever violates
any such regulation shall forfeit not more than one hundred dollars.

DANA MALONE, ATTORNEY-GENERAL. 197

and that your inquiry is further limited to the authority of a
local board of health, where contagious diseases have been found
actually to exist, to enter a school and discover whether or not
such disease is actually present among the pupils attending such
school. If it be further assumed that entries into such school
for purposes involving an examination of the physical condition
of the scholars therein are based upon reasonable grounds for
believing that cases of sickness, which are in fact and effect
causes of sickness, exist in such school, I am of opinion that
local boards of health have the necessary power in the premises.
Where sources of sickness actually exist, the powers of local
boards of health are broad and comprehensive. See Belmont v.
New England Brick Co., 190 Mass. 442; Stone v. Heath, 179
Mass. 385. And such powers are not weakened where the
causes of sickness are cases of contagious disease so numerous as
to form an epidemic. See Oliver v. Gale, 182 Mass. 39, 40.
Chapter 75 of the Revised Laws itself contains provisions for
dealing with diseases dangerous to the public health, and gives
to a local board of health the power to remove or to quarantine
a person suffering from a disease of that character. See sec-
tions 42, 43, 44 and 45.

It follows, therefore, that if in fact contagious disease as a
cause of sickness is found in a school, or if a local board of
health has reasonable and proper grounds for believing that
such contagious disease may be found therein, such board has
authority to enter such school and to make all necessary exam-
inations in the premises, and if pupils suffering from conta-
gious diseases dangerous to the public health are found therein,
to remove them to a hospital or quarantine station, in accordance
with the provisions of section 42 above referred to. Upon the
other hand, however, I am of opinion that a local board of
health has no greater powers with respect to investigating
generally the state of health of the pupils in a school than such
board would have with respect to any other individual; and
that, in the absence of any reasonable ground to believe that
contagious disease as a cause of sickness exists in any school,
such board of health, or its agents, would have no authority to

19S OPINIONS OF THE ATTORNEY-GENERAL.

enter upon the premises for the purpose of making an examina-
tion of the physical condition of the pupils in attendance at
such school.

Your communication further inquires whether State inspec-
tors of health, acting under their general powers as defined in
St. 1907, c. 537, § 3, which provides that each State inspector of
health "shall gather all information possible concerning the
prevalence of tuberculosis and other diseases dangerous to the
public health within his district," have authority to enter school-
houses and hospitals for the purpose of obtaining such informa-
tion. The State inspectors of health are appointed under the
provisions of St. 1907, c. 537, which provides in section 3
that: —

Every state inspector of health shall inform himseK respecting the
sanitary condition of his district and concerning all influences dangerous
to the public health or threatening to affect the same ; he shall gather aU
information possible concerning the prevalence of tuberculosis and other
diseases dangerous to the public health within his district, shall disseminate
knowledge as to the best methods of preventing the spread of such dis-
eases, and shall take such steps as, after consultation with the state board
of health and the local state authorities, shall be deemed advisable for
their eradication; he shall inform himself concerning the health of all
minors emploj^cd in factories within his district, and, whenever he may
deem it advisable or necessary, he shall call the ill health or physical
unfitness of any minor to the attention of his oi' her parents or employers
and of the state board of health.

You do not, in this question, state the character of the in-
formation of which the health inspector is assumed to be in
search. If such inspector desires to enter ^ school or hospital
for the purpose of making a physical examination of individual
pupils or patients, I am of opinion that the statute above
quoted would not authorize him so to do. He has, how-ever,
the same right to enter a hospital or school that is possessed by
any other individual in search of information, independent of
statute. If the statute above quoted confers upon such inspec-
tor any right of entry into hospitals or schools, such right or
authority must be found in the first clause of section 3, and

DANA MALONE, ATTORNEY-GENERAL. 199

nust be for the purpose of enabling the inspector to inform
limself concerning the sanitary conditions of his district, which
jonceivably might include the sanitary condition or method of
construction of either a hospital or a school, and such other
nformation of like nature as might be deemed necessary or
mportant. Upon the other hand, if the information which he
.eeks is to be gained by an examination of persons or of records
)f case in the custody of a hospital or school, or other similar
nformation, I am of opinion that the statute does not contem-
)late the acquisition thereof as a matter of right, and does not
;onfer authorit}^ upon the inspector to enter either a hospital
)r a school for any such purpose.

Boston & Maine Railroad — Extension of Line — Con-
solidation WITH OTHER CORPORATIONS — LIABILITY TO

Forfeiture of Charter.

The ownership and control of the Portsmouth Street Railway and the purchase of
the Eastern Railroad Company, both corporations of the State of New
Hampshire, by the Boston & Maine Railroad, were duly authorized by the
Legislature of this Commonwealth, and such acquisition and control do not
render the charter of the Boston & Maine Railroad liable to forfeiture under
the provision of St. 1906, c. 463, part II., § 47, that "if a railroad corporation
owning a railroad in this commonwealth and consolidated with a corporation
owning a railroad in another state . . . without authority of the general
court, . . . extends its line of railroad, or consolidates with any other corpora-
tion, . . . the charter and franchise of such corporation shall be subject to
forfeiture."

The acquisition and control of the Concord Street Railway and the extension of
its line from Concord to Manchester, by the Concord & Montreal Railroad
Company, was an acquisition and extension of a New Hampshire corporation
of its own line, under proper authority from the State of New Hampshire, and
such acquisition and extension do not render liable to forfeiture under the
provision of law above cited the charter of the Boston & Maine Railroad,
which operates the Concord & Montreal Railroad under a lease authorized
by the Legislature of this Commonwealth.

On January 26 an order of the tenor following was adopted '^^^^^l
3y the Honorable Senate: — February le.

Ordered, That the Attorney-General be requested to inform the Senate
■vhether in his opinion the Boston & Maine Railroad Company, or any
)ther raihoad corporation owning a railroad in the Commonwealth and
-onsolidated with a railroad in another State, has subjected itself to the

200 OPINIONS OF THE ATTORNEY-GENERAL.

forfeiture of its charter and franchise by reason of the provision of the
general raihoad and railway law contained in chapter four hundred and
ninety-tliree of the statutes of nineteen hundred and six which forbids
such a corporation to extend its line of raikoad without the authority of
the General Court, or by reason of any other provision of section forty-
seven of part two of said chapter.

I have the honor to acknowledge the receipt of the foregoing
order, and to reply thereto as follows: —

I assume that the Honorable Senate, by reference to " chapter
four hundred and ninety-three of the statutes of nineteen hun-
dred and six," intended to designate chapter 463 of the Acts of
said year, which is entitled "An Act relative to railroad cor-
porations and street railway companies," and to require my
opinion upon the effect of section 47 of part II. of said chapter
with reference to the present status of the Boston & jNIaine
Railroad and of any other railroad corporation owning a rail-
road within the Commonwealth and consolidated with a rail-
road in another State.

The section referred to, St. 1906, c. 463, part II., § 47, pro-
vides that : —

If a railroad corporation owning a raihoad in this commonwealth and
consolidated with a corporation owning a railroad in another state increases
its capital stock, or the capital stock of such consolidated corporation,
except as authorized by tliis act, without authority of the general court,
or without such authority extends its line of railroad, or consolidates with
any other corporation, or makes a stock dividend, the charter and fran-
cliise of such corporation shall be subject to forfeiture.

No evidence was transmitted to me by the Honorable Senate,
or is officially before me, with respect to any specific act or acts
of the Boston & Maine Railroad, or of any other consolidated
corporation operating a railroad within the Commonwealth, ex-
cept the New York, New Haven & Hartford Railroad Company,
upon the legal status of which, with respect to certain provi-
sions of the section above quoted, I have already expressed an
opinion, which is before the Honorable Senate in my annual
report; and I am awnre of no provision of law which would

DANA MALONE, ATTOKNEY-GENERAL. 201

equire or even authorize the Attorney-General officially to
sccrtain or determine the facts material and necessary to a
oiisideration of the present inquiry, in order to perform intelli-
ently the duty imposed upon him by the provisions of R. L.,
. 7, § 7, to "give his opinion upon questions of law submitted
3 him by the governor and council or by either branch of the
eneral court."

I am informed, however, that, although the question in the
3rm submitted involves an investigation of fact with respect to
he history of the several consolidated railroad corporations
/hich operate railroads within the Commonwealth, which it is
eyond the power of the Attorney-General to make, the Honor-
ble Senate had particularly in view certain definite and specific
cts of the Boston & Maine Railroad, upon the legality of
.'hich, with respect to the provisions of the statute above
uoted, my opinion is desired, viz., the acquisition or control of
he Concord Street Railway and the extension of its road to
lanchester, the ownership and control of the Portsmouth
treet Railway and the purchase of the Eastern Railroad Com-
any.

With respect to these transactions the material facts are mat-
ers of record, and are before me. The Concord Street Railway
i directly owned and operated by the Concord & Montreal
iailroad Company, a corporation of the State of New Hamp-
hire, which has extended the line of such street railway to the
ity of Manchester. Both the original purchase and the subse-
uent extension were effected under and by virtue of the pro-
isions of the general laws of the State of New Hampshire,
/hich permit a railroad corporation to construct and operate its
nes by electricity in or upon the public highways. The sec-
ions above referred to are as follows (St. (N. H.) 1895, c. 27,
§ 22 and 23) : —

Section 22. Every railroad corporation established under the laws
f this state, and operating railroads therein with steam for a motive
ower, are hereby authorized to operate their railroads, or any part
hereof, by electricity; and for the purpose of making the necessary
hanges from steam to electricity as motive power, every such raihoad

202 OPINIONS OF THE ATTORNEY-GENERAL.

corporation may, with the consent of the railroad commissioners, and
subject to the provisions of sections seventeen and eighteen of this act,
issue such an additional amount of capital stock as may be necessary
to defray the expenses of making such change in motive power and
equipment.

Section 23. If any existing steam railroad shall build extensions,
branches, or additions to its hues, to be operated by electricity as the
motive power, such steam railroad shall have the same right to build
and operate such extensions, branches, and additions in the public high-
ways, and be subject to all the duties, Uabilities, and restrictions as to
that part of said extensions, branches, and additions operated by elec-
tricity in public highways, as by the provisions of this act are conferred
and imposed upon street railways in their use of public highways.

See St. (N. H.) 1903, e. 102.

The connection of the Boston & Maine Railroad with these
transactions arises from the fact that it operates the Concord &
Montreal Railroad Company under a lease dated June 29, 1895,
and duly authorized by the Legislatures of Massachusetts and
of New Hampshire, in New Hampshire by chapter 5 of the Acts
of the year 1889, and in Massachusetts by St. 1893, c. 263. See
St. (N. H.) 1893, c. 100; St. (N. H.) 1889, c. 146.

It appears, therefore, that the acquisition of a street railway
line in Concord and the extension of such line from Concord to
Manchester by the Concord & Montreal Railroad Company was
an acquisition and extension by a New Hampshire corporation
of its own line, duly authorized thereto by the laws of that
State.

The Portsmouth Street Railway Company was constructed
and is operated as a part of the Dover & Portsmouth Railroad
Company, under authority of chapter 27 of the Acts of the year
1895, of New Hampshire, the general law of the State of New
Hampshire, which, as before stated, permits the operation by
steam roads of extensions, branches or additions to its lines
operated by electricity in the public highways (see sections 22
and 23 of chapter 102 of the statutes of New Hampshire for the
. year 1903); and such street railway formed a part of the line of

the Dover & Portsmouth Railroad Company on Jan. 1, 1900,
when such company was acquired by purchase by the Boston &

j DANA MALONE, ATTORNEY-GENERAL. 203

ilaine Railroad. This acquisition was effected under the ex-
ress authority of the State of New Hampshire, given in St.
889, c. 5, § 10, which authorized the purchase of the road,
'anchises and property of the Eastern Railroad Company, the
)astern Railroad in New Hampshire, the Portsmouth, Great
alls & Conway Railroad, the Portsmouth & Dover Railroad,
nd certain other railroads therein named. The Massachusetts
uthority for the purchase of the Portsmouth & Dover Railroad
ppears to have been conferred by St. 1891, c. 308, which in
action 1 provided that: —

The Boston and Maine Railroad is hereby authorized to acquire by
urchase, the road, franchises and property of any railroad corporation
'hose road is now operated by it under lease, contract or through owner-
hip of stock, and whether said road belongs to a corporation organized
nder the laws of this Commonwealth or organized under the laws of the
tate of Maine, the state of New Hampshire, or the state of ^^ermont.

Prior to the passage of this statute the relation of the Boston
i Maine Railroad to the Portsmouth & Dover Railroad Com-
)any had been that of lessor to lessee. It therefore appears
hat the street railway in question forms a part of a railroad
;orporation whose property, rights and franchises are owned by
;he Boston & Maine Railroad; that prior to such ownership
iuch extensions as may have been made of the lines of the
Portsmouth Street Railway were extensions of the line of the
Portsmouth & Dover Railroad Company; and that subsequent
:o such ownership there have been, as I am informed, no exten-
sions thereof.

The acquisition of the Eastern Railroad Company, as has
been stated, was authorized in New Hampshire by St. 1889,
c. 5, which in section 10 authorized the Boston & Maine Rail-
road to acquire by purchase the road, franchises and property
of the Eastern Railroad Company, and thereafter to acquire by
purchase the roads, franchises and property of the Eastern Rail-
road of New Hampshire, the Portsmouth, Great Falls & Con-
way Railroad, and certain other railroads therein specified. In
section 12 the Boston & Maine Railroad was further authorized

204 OPINIONS OF THE ATTORNEY-GENERAL.

"to acquire by purchase the road, franchises and property of
any railroad corporation incorporated under the laws of either
the state of Massachusetts, Vermont or Maine whose road is
now leased to or operated by said Boston & Maine Railroad

. .", — a general provision identical with that contained in the
• Massachusetts statute of 1891, chapter 308, which has already
been quoted. In Massachusetts a like permission was granted
to the Boston & Maine Railroad by St. 1888, c. 250, which in
section 1 provided for the acquisition of the Eastern Railroad
Company, with authority subsequently to acquire by purchase
the road, franchises and property of the Eastern Railroad Com-
pany of New Hampshire and of the Portsmouth, Great Falls &
Conway Railroad (see St. 1890, c. 195). In accordance with the
authority conferred by these statutes of Massachusetts and New
Hampshire, respectively, the Boston & Maine Railroad acquired
by purchase the road, franchises and property of the Eastern
Railroad Company on May 9, 1890, the Eastern Railroad in
New Hampshire on June 15, 1899, and the Portsmouth, Great
Falls & Conway Railroad on May 9, 1890.

From these facts it is clear that the Boston & Maine Railroad
has not in the specific instances discussed consolidated with any
other railroad within the State of New Hampshire, and has not
within that State extended its own line contrary to the prohibi-
tion of St. 1906, c. 463, part II., § 47. - It must follow, there-
fore, that if by reason of any of these transactions the charter
of the Boston & Maine Railroad has become liable to forfeiture
under the provision of law already referred to, it has become
liable thereto by reason of the extension of the line of the Con-
cord & ^Montreal Railroad Compahy, a New Hampshire corpora-
tion leased by the Boston & Maine Railroad, from Concord to
Manchester in the State of New Hampshire, — an extension
which was duly authorized by the laws of New Hampshire.
Upon this point I am constrained to say to the Honorable
Senate that in my opinion the provisions of section 47 cannot be
extended to include, even by implication, an extension of the
lines of a New Hampshire corporation so authorized and ef-
fected. Even if the extension under consideration were of the

DANA MALONE, ATTORNEY-GENERAL. 205

nes of the Boston & Maine Railroad itself, the scope and

''Urpose of the provision in section 47, with respect to exten-

|ions of the lines of railroads beyond the limits of the Com-

lonwealth, would not be wholly free from doubt. In the

ase of Attorney-General ex rel. v. New York, New Haven &

lartford R.R. Co., 198 Mass. 413, the court, in discussing a

onsolidated corporation similar to the Boston & Maine Rail-

: oad, and the mutual concessions by the several States by

/hich it was created, said (page 422) : —

How far, by reason of the peculiar nature of the corporation, or by
Dree of express provisions in the statutes, has Massachusetts given up
ts right of control of this corporation, or relieved it of the application
I f our general laws, and how far has it retained such control? As creating
I , corporation to build and operate a railroad in two different States, and
! >y the language quoted from St. 1844, c. 28, § 2, the Legislature recog-
I lized the fact that the corporation might have certain franchises, rights,
)0wers, privileges and property granted or acquired under the laws of
)nly one of the two States. As to such rights and powers as pertain
, )nly to local matters, like the location of the railroad, the possession and
nanagement of real estate, the crossing of highways and other railroads,
I -he State in which they were to be exercised would have exclusive juris-
liction. This fact is enough to show the reason for using the language
•eUed on by the defendant. In regard to all such matters, the action
)f only one State would be appropriate and sufficient. How far this
mplied authority to grant powers and franchises without the co-opera-
tion of the sister State should be held to extend, it is unnecessary in this
3ase to decide. Whether it should go so far as to include the acquisition
jf other raihoads within the State where the power is granted, or the
.ocation and construction of new fines and extensions there, and an increase
Df the capital stock for such purposes, is a question upon which it is not
Qecessary to express an opinion.

See 1 Op. Atty.-Gen. 118, 137.

It further appears that all issues of stock and bonds of the
Boston & Maine Railroad have been made in conformity' to
the laws of the Commonwealth, and have been approved by the
Board of Railroad Commissioners.

This being so, I have to advise the Honorable Senate that
such facts as I now have before me do not disclose any acts of

20G OPINIONS OF THE ATTORNEY-GENERAL.

the Boston & Maine Railroad, or, with the exception herein-
before stated, of any other consoHdated corporation which
operates a railroad within the Commonwealth, which would
render liable to forfeiture the charters of such corporations
under the provisions of section 47 of part II. of chapter 463
of the Acts of 1906.

To the

Commissioners
on Fisheries
and Game.

1909
February 26.

Registration of Hunters — Citizen — Residence on Land

USED exclusively FOR AGRICULTURAL PURPOSES.

Under the provisions of St. 1908, c. 484, § 3, which exempts, from the requirement
prescribed by the statute of a certificate of registration, citizens who are
bona fide residents on land owned or leased by them, and on which they are
actually domiciled, such land being used exclusively for agricultural purposes,
a person who is resident in a city or town and not upon a farm, but who is
the owner of a wood lot used for growing wood, is not exempt from registration.
A farmer, however, who is actually resident upon land used exclusively for
agricultural purposes, may hunt without registration in a wood lot which
is a part of his farm.

In a letter of present date you have requested my opinion
upon the construction to be given to section 3 of chapter 484
of the Acts of 1908, requiring citizens of the United States
resident in Massachusetts, who desire to hunt in Massachu-
setts, to be registered and to pay a registration fee. The
section referred to is as follows : —

Every citizen of the United States who is a bona fide resident of this
state shall pay for such certificate a fee of one dollar: provided, however,
that this act shall not apply to any such citizen who is a bona fide resident
on land owned or leased by him and on which he is actually domiciled,
which land is used exclusively for agricultural purposes, and not for club
or shooting purposes.

Your inquiries, as I understand them, are: first, whether a
person who lives in a city or town and not upon a farm, but
is the owner of a wood lot used for growing w^ood, may hunt in
that wood lot without registration; and, second, whether a per-
son who does live upon a farm and carries on agriculture as a
vocation, and is the owner of a wood lot used for growing
wood, may hunt in that wood lot without registration.

DANA MALONE, ATTORNEY-GENERAL. 207

In my opinion, the first question is to be answered in the
legative. The clear intent of the proviso quoted is to exempt
he farmer from restrictions upon his freedom to hunt within
;he hmits of his own farm. The resident of a town or city who
s not a farmer, but owns a wood lot, is not actually domiciled
md resident on land used exclusively for agricultural purposes.
He is therefore within neither the intent nor the terms of the
statute, and is clearly not exempt from registration.

In reply to the second question, my opinion is that a farmer
ivho is actually domiciled and resident upon land used exclu-
>ively for agricultural purposes may hunt without registration
m a wood lot which is part of his farm. All the land embraced
m the farm which he operates as a farm, whether it is tillage,
pasture or woodland, is to be considered as land used for agri-
cultural purposes. Such w^ood lot, while it need not be actually
contiguous to the rest of the farm, must, in my opinion, be so
nearly adjacent as to be considered as in fact a part of the farm
upon which the farmer lives, and to be so used.

Pauper Law — Insane Person — Removal from the Com- ■
monwealth — settlement.

The provision of R. L., c. 80, § 6, that "a person who is absent from the common-
wealth for ten consecutive years shall lose his settlement," is applicable to
an insane person who was removed to an asylum in another state and there
maintained for more than ten consecutive years.

In a letter of recent date you have requested my opinion To the state
upon the question arising upon the following facts: a woman ^"jg?^*^-
fifty years of age had an undoubted settlement in Massachu- m^^^.
setts, when, in 1896, she was taken to Mount Hope Asylum
in Baltimore, Md., where she has remained continuously since
that time supported as a private patient. Her relatives now de-
sire to have her returned to Massachusetts and committed to an
insane hospital of this Commonwealth.

The question upon which you have asked my opinion is,
whether the woman's settlement in Massachusetts has been lost
under the provision of the last clause of R. L., c. 80, § 6, that —

20S OPINIONS OF THE ATTOKNEY-GENERAL.

A person who is absent from the commonwealth for ten consecutive
years shall lose his settlement.

The clause of the statute quoted, which has been held to be
prospective in operation, was enacted in 1898, and has, there-
fore, been in effect during more than ten years of the patient's
absence.

In my opinion, the statute operates upon the settlements of
the sane and insane with the same effect, and whether a settle-
ment has been lost under its provisions depends not upon the
mental condition of the person in question, but solely upon her
actual residence during the ten years under consideration.

The patient referred to has, therefore, in my opinion, lost the
settlement which she had in Massachusetts in 1896.

To the House
of Ucpre-
sentativea.

1909
March 25.

Animals — Slaughter or Killing — Healthy Condition —
Meat from Carcasses of Cattle infected with Tuber-
culosis — Sale.

St. 1908, c. 329, providing in section 1 that "the sale, offer or exposure for sale, or
delivery for use as food, of the carcass ... of any animal which has come
to its death in any manner or by any means otherwise than by slaughter or
killing while in a healthy condition . . . shall be punished by a fine of not
more than two hundred dollars or by imprisonment for not more than six
months," does not permit meat derived from the carcasses of cattle infected
to any degree with tuberculosis or any other disease to be sold as food within
this Commonwealth.

I have the honor to acknowledge the receipt of an order
adopted by the Honorable House of Representatives on March
10, last, requiring the opinion of the Attorney-General "as to
whether the laws and statutes of this Commonwealth permit
cattle which are infected to any degree with tuberculosis to
be killed and sold as food in this Commonwealth."

I am aware of no provision of law which forbids the killing
of cattle which are infected with tuberculosis; on the contrary,
the killing of cattle so infected is in certain cases expressly re-
quired (see R. L., c. 90, §§ 4, 6), and I therefore assume that
the Honorable House of Representatives in substance requires
my opinion upon the question whether or not the laws of the

DANA MALONE, ATTORNEY-GENERAL. 209

ommonwealth permit the sale of food products in any form
erived from the carcasses of cattle which are found to have
een to any degree infected with tuberculosis. Upon that
ssumption I reply as follows: —

The general supervision and inspection of slaughtered animals
lid of all meat and other food products derived therefrom is
ested in boards of health of cities and towns. R. L., c. 56,

70, provides in part that: —

Boards of health of cities and towns may inspect the carcasses of all
aughtered animals and all meat, fish, vegetables, produce, fruit or
revisions of any kind found in their cities or towns, and for such purpose
ay enter any building, enclosure or other place in which such carcasses
• articles are stored, kept or exposed for sale. If, on such inspection,

is found that such carcasses or articles are tainted, diseased, corrupted,
5cayed, unwholesome or, from any cause, unfit for food, the board of
3alth shall seize the same and cause it or them to be destroyed forthwith
' disposed of otherwise than for food.

See R. L., c. 56, § 73.

By section 99 of chapter 75 of the Revised Laws it is pro-
ided that the proprietor of everj^ slaughter house, canning,
alting, smoking or rendering establishment, and of every estab-
shment used for the manufacture of sausages or chopped meat
f any kind, who is engaged in the slaughter of neat cattle,
heep or swine, the meat or product of which is to be sold or
sed for food, shall be annually licensed by the mayor and
Idermen of the city, the selectmen of the town, or, in towns,
aving a population of more than five thousand, by the board
f health, if there be any.

Section 101 provides that: —

A licensee under the provisions of the preceding section sh?ll not
laughter any such animals, or cause them to be slaughtered at such
laughter house or establishment, on any days other than those specified
1 the application for such license, except in the presence of a member
f the board of health or of an inspector appointed therefor by said board;
ut he may at any time change the days for slaughtering such animals,
y giving at least seven days' written notice thereof to the board or officer
uthorized to issue hcenses, who shall immediately give written notice of
uch change to such inspector of such city or town.

210 OPINIONS OF THE ATTORNEY-GENERAL.

Section 102 provides that: —

Such inspector as has been appointed by the board of health shall be
present at all licensed slaughter houses or establishments upon the days
designated for slaughter by the licensee, as provided in the preceding
section, and there carefully examine the carcasses of all animals at the
time of slaughter. Such inspection shall be made in such manner and
under such rules and regulations as the board of catcle commissioners
may determine and direct. If, in the opinion of an inspector, any carcass,
or any meat or product thereof is diseased, cormpted, unwholesome or
unfit for food, he shall seize it and cause it to be destroyed, as provided
in section seventy of chapter fifty-six.

Section 103 provides that in a slaughtering establishment
wherein inspection and branding is not carried on under the
rules and regulations for the inspection of live stock and other
products, established by the United States department of agri-
culture, the carcasses of animals slaughtered shall at the time of
slaughter, if not condemned, be stamped or branded by the in-
spector thereof in like manner as those inspected by the United
States Bureau of Animal Industry for interstate trade.

By section 104 a penalty is provided for the sale of un-
stamped carcasses, which shall be deemed unfit for food. See
St. 1903, c. 220; St. 1908, c. 329.

R. L., c. 90 (originally St. 1894, c. 491), dealt w^ith the con-
tagious diseases of domestic animals, arid in general authorized
the Board of Cattle Commissioners, established by its provi-
sions, from time to time to make orders and regulations relative
to the prevention, suppression and extirpation of contagious dis-
eases of domestic animals, and relative to the inspection, ex-
amination, quarantine, care and treatment or destruction of
such animals which are affected with, or have been exposed to,
such diseases. Section 7 is as follows: —

The board may make regulations for the inspection of meat, which shall
conform to the regulations of the United States bureau of animal industry
for the inspection of meat for export and for interstate commerce.

By St. 1902, c. 116, the Board of Cattle Commissioners was
abolished, and a Bureau of the State Board of Agriculture, to

DANA MALONE, ATTORNEY-GENERAL. 211

1)6 known as the Cattle Bureau, was created. In section 3 it
7as provided that the Governor should annually appoint a
^hief of the Cattle Bureau, who should have the powers and
lerform the duties heretofore imposed and conferred upon the
Joard of Cattle Commissioners, with the additional proviso
hat no orders or regulations made by him under authority of
actions 4 and 7 of chapter 90 of the Revised Laws should
ake effect until approved by the Governor and CounciL

R. L., c. 90, § 12, provided for the appointment in cities, ex-
ept Boston, and in all towns, of one or more inspectors of ani-
nals. By section 13 authority was conferred upon the Cattle
Commissioners, whose powers are now vested in the Chief of
he Cattle Bureau, to appoint such inspector or inspectors in
iny city or town which failed to comply with the provisions of
ection 12, above cited. Sections 14 and 15 deal with the
luties of such inspectors. Section 16 is as follows: —

An inspector shall comply with and enforce all orders and regulations
vhich may be directed to him by the board of cattle commissioners or by
my of its members. If he refuses or neglects so to do, he shall be punished
)y a fine of not more than five hundred dollars.

The effect of the statutes above cited is to provide that the
nspection of slaughter houses, and of the carcasses of cattle
slaughtered therein and the products derived therefrom, so far
IS such inspection relates to food products, is within the juris-
liction of the local boards of health. See R. L., c. 75, §§ 100-
108; c. 56, §§ 70-76. It is also apparent from such statutes
;hat the Cattle Bureau of the State Board of Agriculture is
zested with authority to examine and inspect living animals and
:he carcasses of animals which may be killed as a result of such
nspection, in order to ascertain whether or not such animals
ivere affected with any contagious or infectious disease. See
R. L., c. 90, §§ 12-34. It is to be observed, however, that the
nspection conducted by the Cattle Bureau does not include an
investigation of the food products derived from cattle, such in-
spection being within the jurisdiction of local boards of health,
but is limited to an inspection of living cattle and a post-

212 OPINIONS OF THE ATTORNEY-GENERAL.

mortem examination of cattle which have been killed for the
reason that they appeared to be affected with some contagious
disease enumerated in R. L., c. 90, § 28.

The inspection of meat within this Commonwealth is guided
by certain rules and regulations prepared by the Chief of the
Cattle Bureau and submitted for approval to the Governor and
Council, under authority of R. L., c. 90, § 7, as amended by St.
1902, c. 116, § 3, which rules and regulations, in accordance
with the direction contained in that section, are in conformity
with the regulations established by the United States Bureau of
Animal Industry for the inspection of meat for export and for
interstate commerce. The rules and regulations of the Federal
Bureau, promulgated by authority of an act of Congress, ap-
proved June 30, 1906 (34 St. 674), provide in section 13, as fol-
lows : —

Paragraph 1. The following principles are declared for guidance in
passing on carcasses affected with tuberculosis : —

Principle A. — The fundamental thought is that meat should not be
used for food if it contains tubercle bacilli, if there is a reasonable possibility
that it may contain tubercle bacilli, or if it is impregnated with toxic sub-
stances of tuberculosis or associated septic infections.

Principle B. — On the other hand, if the lesions are localized and not
numerous, if there is no evidence of distribution of tubercle bacilh through
the blood, or by other means, to the muscles or ],o parts that may be eaten
with the muscles, and if the animal is well nourished and in good condition,
there is no proof, or even reason to suspect, that the flesh is unwhole-
some. . . .

Principle D. — By localized tuberculosis is understood tuberculosis
limited to a single or several parts or organs of the body without evidence
of recent invasion of numerous bacilli into the systemic circulation.

Paragraph 2. The following rules shall govern the disposal of tuber-
culosis meat : —

Rule A. — The entire carcass shall be condemned —

(a) When it was observed before the animal was killed that it was
suffering with fever.

(h) When there is a tuberculous or other cachexia, as shown by anemia
and emaciation.

(c) When the lesions of tuberculosis are generalized, as sliown by their
presence not only at the usual seats of primary infection, but also in parts

DANA MALONE, ATTORNEY-GENERAL. 213

I f the carcass or the organs that may be reached by the baciUi of tuber-
ulosis only when they are carried in the systemic circulation. Tubercii-
)sis lesions in any two of the following-mentioned organs are to be
ccepted as evidence of generalization when they occur in addition to
)cal tul)erculous lesions in the digestive or respiratory tracts, including
he lymphatic glands connected therewith; spleen, kidney, uterus, udder,
vary, testicle, adrenal gland, brain, or spinal cord or their membranes.
Numerous uniformly distributed tubercles throughout both lungs also
fford evidence of generalization.

(d) When the lesions of tuberculosis are found in the muscles or inter-
luscular tissue or bones or joints, or in the body lymphatic glands as a
?sult of draining the muscles, bones or joints.

(e) When the lesions are extensive in one or both body cavities.

(/) When the lesions are multiple, acute, and actively progressive.
Evidence of active progress consists in signs of acute inflammation about
he lesions, or liquefaction necrosis, or the presence of young tubercles.)

Rule B. — An organ or a part of a carcass shall be condemned —

(a) When it contains lesions of tuberculosis.

{b) When the lesion is immediately adjacent to the flesh, as in the case
f tuberculosis of the parietal pleura or peritoneum, not only the mem-
irane or part affected but also the adjacent thoracic or abdominal wall
3 to be condemned.

(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: —

DANA MALONE, ATTORNEY-GENERAL. 217

Dherein. . . . The pro\'isions of section nineteen of chapter seventy-
ive of the Revised Laws, so far as they are consistent herewith, shall
j,pply to the manner and form in which such statements shall be marked
)r inscribed.

Section 6 of this statute imposes a penalty upon "whoever
nanufactures, sells or offers for sale any . . . food preparation
n violation of the provisions of this act ..."

R. L., c. 75, § 19, provides in part that "the required label
ihall be firmly attached to or printed on the exterior of the said
irticle, on the top or side thereof and in plain sight."

In my opinion, the requirements of these statutes are com-
plied with so long as the glass bottle is within the pasteboard
.vrapper, if a proper statement is inscribed upon the pasteboard
vrapper. The required label is then "on the exterior of the
)ackage or envelope." If, however, the glass bottle is removed
rom the pasteboard wrapper and in this condition sold or of-
'ered for sale, these statutes are not complied with unless the
itatement be properly marked or inscribed upon the glass bottle
tself.

Che Soldiers' home in Chelsea — Charitable Corpora-
tion — Purposes of Incorporation — Soldiers and
Sailors.

The charitable corporation called the "Trustees of the Soldiers' Home in Massa-
chusetts," created by the provisions of St. 1877, c. 218, for the purpose of
establishing and maintaining in the city of Chelsea a home "for deserving
soldiers and sailors and such members of their families as said trustees maj^
deem to be proper," may receive in such home or institution any deserving
soldier or sailor, who has served in the organized military or naval forces
either of the commonwealth or of the United States; and the transfer con-
templated by St. 1908, c. 199, § 3, providing that "all real and personal estate
held by said trustees shall revert to the commonwealth when the purpose for
which the trustees were incorporated shall have been accomplished," may
not be made upon failure to find inmates for the institution who have served
in the late war of the rebellion.

I have vour letter of April 8, in w'hich vou inquire, on behalf TotheCom-

■" * ' . mittee on

>f the committee on finance of the Executive Council, "in re- {;-j,"guj|Ve^ ^''^
;ard to the future transfer of the Chelsea Hospital by its board "^""gog"'
'f trustees to the Commonwealth." ^.5!!ll*-

218 OPINIONS OF THE ATTORNEY-GENERAL.

By the name "Chelsea Hospital" you doubtless intend to
designate the home for worthy soldiers and sailors maintained
in the city of Chelsea by the "Trustees of the Soldiers' Home
in Massachusetts," a charitable corporation created by the pro-
visions of St. 1877, c. 218, for the purpose of establishing and
maintaining a home "for deserving soldiers and sailors and
such members of their families as said trustees may deem to
be proper." The Commonwealth has repeatedly appropriated
money in aid of the institution so established. See Res. 1905,
c. 50; 1906, c. 53; 1907, c. 12, etc. In addition to the an-
nual appropriation so made by the Commonwealth, there have
been from time to time other appropriations for the construction
of additional buildings for the use of the institution. See Res.
1905, c. 77; St. 1906, c. 48; Res. 1907, c. 105, etc. In 1908 the
charter of the corporation (St. 1877, c. 218) was amended by
St. 1908, c. 199, which provided, among other things, for the
representation among the trustees of the institution, three of
whom are appointed by the Governor by and with the advice
and consent of the Council, of the voluntary associations known
as the "Massachusetts Division, Sons of Veterans, United
States of America," and the "Department of Massachusetts,
United Spanish War Veterans." In section 3 of this act there
is a provision that "all real and personal estate held by said
trustees shall revert to the commonwealth when the purpose
for which the trustees were incorporated shall have been ac-
complished," — a provision probably attached to the act for
the reason that most of the property held or controlled by the
corporation was donated or paid for from appropriations made
by the Commonwealth.

Upon these facts I assume that in substance you desire to be
advised whether or not "the purpose for which the trustees were
incorporated" is to be deemed to have been accomplished when
there may be no longer deserving soldiers or sailors who have
served in and are veterans of the war of the rebellion. It is to
be observed that the purposes of the institution, as expressed in
St. 1877, c. 218, § 1, are not in any way limited to deserving
soldiers or sailors who have served in any particular war, or,

DANA MALONE, ATTORNEY-GENERAL. 219

ideed, to soldiers who have served in any war; and in my
pinion such purposes are sufficiently broad to include and apply
0 any deserving soldier or sailor who has served in the or-
anized military or naval forces either of the Commonwealth
r of the United States, and cannot fail so long as the United
tates or the Commonwealth may maintain a regular military
r naval force of enlisted soldiers or sailors. It is therefore my
pinion that the transfer contemplated by St. 1908, c. 199, § 3,
lay not be made upon failure to find inmates for the institu-
ion known as the "Soldiers' Home in Massachusetts" who
ave served in the late war of the rebellion, and that other
eserving soldiers and sailors who are not veterans of that war
lay be ehgible to become inmates thereof. In reaching this
onclusion I do not deem it necessary to consider whether or
ot the provisions of the section above referred to are effective
t any time to secure in the manner contemplated the transfer
■f the real and personal estate held by the trustees of such in-
titution.

NSURANCE — Accident and Health Disability — Form of
Policy — Insurance Commissioner — Approval — Ex-
ercise OF Legislative Power by Ministerial Of-
ficer — Constitutional Law\

I proposed act, vesting in the Insurance Commissioner authority to approve the
form of every policy of accident or health disability insurance issued in this
Commonwealth, and constituting such approval a condition precedent to the
issuance and delivery of such policy, without prescribing any standard form
therefor or directing what, in substance, such policy shall contain, would
be unconstitutional under the Constitution of Massachusetts, Article XXX.
of the Bill of Rights, as a delegation of legislative power to a ministerial officer.

By your letter of April 5 you seek my opinion upon the To the
onstitutionalitv of a proposed act relative to accident, health insurance.

\ . . 1909

nd disability insurance, which contains the following pro- April 21.
isions: —

Section 1. On and after January first, nineteen hundred and ten,
10 policy of accident or health disability insurance shall be issued or
lelivered in this commonwealth that does not provide for a period of
:race in the pajTiient of premiums of at least thirty days during which

220 OPINIONS OF THE ATTORNEY-GENERAL.

period the policy shall remain in force nor until a copy of the form thereof
has been filed at least thirty days with the insurance commissioner, and
has been approved by him.

Section 2. If the insurance commissioner refuses to approve the
form of policy aforesaid, he shall notify the proper officer of said com-
pany, with a statement of the reasons of said commissioner for the refusal
of his approval; and said company may, within a reasonable time after
the receipt of such notification, petition the supreme court to review the
said action of the insurance commissioner.

Insurance against bodily injury or death by accident and
upon the health of individuals is authorized by St. 1907, c. 576,
§ 32, as amended by St. 1908, c. 248, which provides that: —

Ten or more persons residents of this commonwealth may form an
insurance company for any one of the following purposes: —

Fifth, To insure any person against bodily injury or death by accident,
or any person, firm or corporation against loss or damage on account of
the bodily injury or death by accident of any person, or against damage
caused by automobiles to property of another, for which loss or damage
said person, firm or corporation is responsible, and to make insurance
upon the health of individuals.

It is well established that the Legislature may prescribe a
standard form of policy for any one or more of the kinds of in-
surance authorized under the section above quoted, or may
enact substantive provisions for all policies {Neio York Life In-
surance Co. V. Hardison, 199 Mass. 190; Hewins v. London
Assurance Corporation, 184 Mass. 177; Quinn v. Fire Association,
180 Mass. 560; Boyden v. Massachusetts Masonic Life Assn., 167
Mass. 242; St. 1907, c. 576, §§ 60, 91 and 93), and may em-
power the Insurance Commissioner to pass upon and approve
or disapprove both the form and substance of insurance policies
submitted to him, in regard to such standard form or to any
other requirement of law, vesting in the court the authority
to review such finding upon petition of any company aggrieved
thereby. Aetna Life Insurance Co. v. Hardison, 199 Mass. 181;
Provident Savings, etc.. Society v. Cutting, 181 Mass. 261; St.
1907, c. 576, § 75.

DANA MALONE, ATTORNEY-GENERAL. 221

It is to be observed, however, that the authority of the In-
surance Commissioner to approve or disapprove the form or
substance of a pohcy of insurance, in the cases above cited, rests
upon some statutory declaration of the essentials which such
policy shall contain, and that the function of the commissioner
is to determine, as a ministerial officer and in the management
of the details in the administration of the law, whether or not
such policy conforms to the requirements of law, his determina-
tion being subject to judicial review. New York Life Insurance
Co. v. Hardison, supra, p. 197.

With respect to the kinds of insurance here under considera-
tion, to wit, accident, health and disability insurance, the Legis-
lature has not established any standard form of policy, nor
directed what in substance the contract shall contain; and in
approving or disapproving any policy submitted to him under
the provisions of section 1 of the proposed statute, the Insur-
ance Commissioner must act upon his own unguided judgment,
discretion and experience. In other words, the act in effect au-
thorizes the Insurance Commissioner to establish such standard
form or forms as he may deem applicable or proper in the
premises, without in any particular indicating what shall be in-
cluded therein. An authority so sweeping cannot be deemed to
be the mere working out of details under a legislative act, or de-
termination of facts upon which the application of a law has
been made to depend, or discretion in its execution (see Com-
monwealth v. Sisson, 189 Mass. 247), but is rather an authority
to make or change the law itself. In other jurisdictions, where
no standard form or other requirement has been established for
contracts of insurance, a power vesting in the Insurance Com-
missioner, or some other officer with like duties, to formulate
and prescribe the nature of such contracts, has been held to be
unconstitutional as a delegation of the legislative authority to
a ministerial officer. King v. Concordia Fire Insurance Co., 140
Mich. 258, 268; O'Neil v. Insurance Co., 166 Pa. St. 77; An-
derson V. Assurance Co., 59 Minn. 182; Phoenix Insurance Co.
V. Perkins, 19 So. Dak. 59; Bowling v. Insurance Co., 92 Wis.

222 OPINIONS OF THE ATTORNEY-GENERAL.

73; and I see no reason to doubt the application in this Com-
monwealth of the principals so established.

I am therefore of opinion that section 1 of the proposed act
is unconstitutional, for the reason that it purports to delegate
to and vest in a ministerial officer authority which may be con-
stitutionally exercised only by the Legislature itself. Constitu-
tion of Massachusetts, Bill of Rights, Article XXX.

I may add that in my opinion section 2 of the proposed act
is objectionable upon like grounds, since it purports to impose
upon the Supreme Judicial Court duties which are ministerial
and not judicial in their nature. Case of Supervisors of Elec-
tions, 114 Mass. 247.

Insurance — Corporation — Transaction of Insurance
Business — Place of Contract — Jurisdiction.

A Massachusetts corporation maintaining a department store, which, in combina-
tion with certain other corporations, persons and co-partnerships within and
beyond the Commonwealth, has given to a resident in the State of New York
a power of attorney to make contracts of insurance in its behalf with each of
such other corporations, persons and co-partnerships in which all of the other
corporations, persons and co-partnerships bear a proportionate and distinct
liability, is transacting the business of insurance within the provisions of St.
1907, c. 576, § 3, which provides that "a contract of insurance is an agreement
by which one party for a consideration promises to pay money or its equiva-
lent or to do an act valuable to the assured upon the destruction, loss or injury
of something in which the other party has an interest ..." If, however,
such contracts are made in the State of New York, and no act in connection
therewith is done within this Commonwealth, such corporation is not engaged
in the business of insurance within the Commonwealth.

i5.i?ance ^^^ ^^k my Opinion upon the question whether or not a

commiasioner. Massachusctts Corporation maintaining a department store for
-^^' the sale of dry goods and other merchandise, upon the facts

stated by you, should be held to be engaged in the business
of insurance, and with respect thereto subject to the regulations
and restrictions imposed by the laws of the Commonwealth
upon the conduct of the business of insurance.

Upon the facts submitted it may be assumed that the cor-
poration in question, and other persons, copartnerships and cor-
porations within and beyond the Commonwealth, have given to
a person resident in the State of New York their several powers

DANA MALONE, ATTORNEY-GENERAL. 223

of attorney which authorize such person to make contracts of in-
surance with each of such persons, copartnerships and corpora-
tions, in which all of the other persons, copartnerships and cor-
porations shall bear a proportionate and distinct liability. By
the powers of attorney so given an association has been created
for the purpose above stated, which is managed and directed
by a committee of five, representing those who have executed
such powers of attorney, which committee has the power to dis-
qualify and close the account of any member of such association;
to maintain a general supervision over the acts of the attorney
in fact; and to take charge of money received by him, subject
to the deduction of his compensation, and to invest the same.

Upon these facts two questions are presented; first, whether
or not the transactions above described constitute the business
of insurance as defined by the provisions of the laws of the
Commonwealth; and, second, if such transactions do constitute
the business of insurance, whether or not such business may
be regulated in accordance with the insurance laws.

No difficulty is presented by the first question. St. 1907,
c. 576, § 1 , provides that : —

In this act, unless the context otherwise requires : —
"Company" or "insurance company" includes all corporations, asso-
ciations, partnerships or individuals engaged as principals in the business
of insurance.

Section 3 provides : —

A contract of insurance is an agreement by which one party for a con-
sideration promises to pay money or its equivalent or to do an act valu-
able to the assured upon the destruction, loss or injury of something in
which the other party has an interest, and it shall be unla^^^ul for a com-
pany to make a contract of insurance upon or relative to any property or
interests or lives in this commonwealth, or with any resident thereof, or
for any person as insurance agent or insurance broker to make, negotiate,
solicit or in any manner aid in the transaction of such insurance, except
as authorized by the provisions of this act or the laws relating to "fra-
ternal beneficiary corporations" and "assessment insurance." All con-
tracts of insurance on property, lives or interests in this commonwealth
shall be deemed to be made therein.

224 OPINIONS OF THE ATTORNEY-GENERAL.

The transaction of the corporation in question, in my opinion,
clearly constitutes the business of insurance. The corporation
by its authorized agent receives a contract of insurance under
which, in case of loss, each member of the association is sever-
ally and distinctly bound to pay a proportionate part. Such
corporation, also through its agent, makes with each and every
other member a similar contract, upon which it in turn is
severally liable for its proportionate share of the total amount
of insurance provided for in such contract. It follows that the
corporation, through its agent, has made as many separate con-
tracts of insurance as there are persons, copartnerships or cor-
porations which have filed powers of attorney with the com-
mon agent; or, in other words, it has participated in separate
contracts of insurance equal in number to the total number of
such powers of attorney. It is to be observed that this is not
the case of a corporation which insures in a mutual insurance
company, thereby binding itself by a single contract to pay
assessments wherever loss is incurred by any member of the
company; the distinction being that in such case there is but a
single contract, providing for the payment of such assessments
as may be necessary, while here the corporation has written as
many separate contracts of insurance as there are members of
the association, and it will continue to write additional and
separate policies as often as new members are admitted thereto.

I am confirmed in the view already expressed by section 91 of
chapter 576 of the x\cts of 1907, which provides for the regula-
tion of associations of individuals wdio conduct the business of
insurance in the manner known as Lloyds, " whereby each asso-
ciate underwriter becomes liable for a proportionate part of the
whole amount insured by a policy."

Upon the second inquiry a more difficult question is pre-
sented. Although it is not specifically so stated, I assume that
the contracts made under authority of the power of attorney
given by the corporation in question are made in New York,
that payments upon them by way of premiums or other charges
and payments of losses are there made, and that no business is
in fact conducted within this Commonwealth. This being so,

DANA MALONE, ATTORNEY-GENERAL. 225

t would seem that if the association, with the exception of the
Vlassachusetts corporation, w^ere composed of persons, copart-
lerships or corporations which were not domiciled or located
vithin the Commonwealth, the insurance by such corporation
if its property in Massachusetts with such association could not
)e regulated by the laws of this Commonwealth. In Allgeyer
\ Louisiana, 165 U. S. 578, 591, the court, in holding that the
)tate of Louisiana could not constitutionally prohibit the mak-
Qg of contracts by its citizens with corporations not permitted
0 do business in the State of Louisiana, where such contracts
rere made beyond the limits of that State, said : —

In the privilege of pursuing an ordinary calling or trade and of acquir-
ig, holding and selling property must be embraced the right to make all
roper contracts in relation thereto, and although it may be conceded
hat this right to contract in relation to persons or property or to do busi-
ess within the jurisdiction of the State may be regulated and sometimes
rohibited when the contracts or business conflict with the policy of the
tate as contained in its statutes, yet the power does not and cannot
xtend to prohibiting a citizen from making contracts of the nature in-
olved in this case outside of the limits and jurisdiction of the State, and
.•hich are also to be performed outside of such jurisdiction; nor can the
tate legally prohibit its citizens from doing such an act as writing this
?tter of notification, even though the property which is the subject of
he insurance may at the time when such insurance attaches be within
he limits of the State.

It must, I think, be equally true that a person resident in
Massachusetts and engaged in other business therein may be-
'ond the limits of the Commonwealth execute a contract to
nsure a person domiciled in another State, and that persons
nay go from Massachusetts into other jurisdictions with the
•urpose either of insuring or of being insured, and may execute
dth citizens of other States such contracts as they desire to
nake. It can hardly be that, if persons so minded meet in
nother jurisdiction and assume toward each other the rela-
ions of insurer and insured under a contract made and to be
performed in such jurisdiction, doing no act in connection
herewith in this Commonwealth, they may, upon their return

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.

DANA MALONE, ATTORNEY-GENERAL. 233

Boston Railroad Holding Company — Acquisition of
Stock, Bontds, and Other Evidences of Indebtedness
OF THE Boston & Maine Railroad — Restraint of
Trade — Anti-Trust Act.

The proposed bill (now St. 1909, c. 519) incorporating the Boston Railroad Holding
Company, which authorized such company to acquire the stock, bonds and
other evidences of indebtedness of the Boston & Maine Railroad, and
permitted any railroad corporation existing under the laws of the Common-
wealth at the date of the passage of such bill to guarantee the principal of
and the dividends and interest upon the capital stock, bonds, notes and other
evidences of indebtedness of the Boston Railroad Holding Company, and to
acquire and hold such stock, bonds, notes and other evidences of indebtedness,
is not in conflict with the provisions of the so-called Anti-Trust Act, the
Federal Statute of July 2, 1890 (26 Stat. 209), which provides in section 1
that " every contract, combination in the form of trust or otherwise, or con-
spiracy in restraint of trade or commerce among the several states, or with
foreign nations, is hereby declared illegal."

The committee on railroads has submitted to me for my To the

^ Committee on

Dpinion the following question : — ^i909°^^^*

May 27.

The committee on raihoads is considering the so-called holding com-
pany bill submitted to it by you. The question has been raised as to
whether, if the New Haven Railroad were to control, directly or indirectly,
this company, it would be a violation of the so-called Sherman Anti-Trust
Act or of any other federal statute, or whether the holding company could
then be made a party to the federal suit now pending against the New
Haven Railroad.

I assume that the inquiry of the committee is directed to any
action upon the part of the New York, New Haven & Hartford
Railroad Company which may be authorized by the provisions
of section 4 of the proposed bill, which, so far as material, are
as follows : —

Any railroad corporation incorporated at the date of the passage of
this act under the laws of this commonwealth may guarantee the princi])al
of and the dividends and interest upon the capital stock, bonds, notes
and other evidences of indebtedness of said Boston raihoad holding
company, and may acquire and hold said stock, bonds, notes and other
evidences of indebtedness: provided, however, that the shares of stock of
said Boston railroad holding company shall not be sold or transferable
until said stock has been guaranteed as hereinbefore provided. Any

234 OPINIONS OF THE ATTORNEY-GENERAL.

railroad corporation acquiring said stock as hereinbefore provided shall
not thereafter sell the same without the express authority of the legislature.

The so-called Sherman Anti-Trust Act, the statute of July 2,
1890 (26 Stat. 209), which is, so far as I am aware, the only
federal statute material in the premises, is entitled "An Act
to protect trade and commerce against unlawful restraints and
monopolies," and provides in section 1 that: —

Every contract, combination in the form of trust or otherwise, or con-
sph-acy, in restraint of trade or commerce among the several states, or
with foreign nations, is hereby declared to be illegal. Every person who
shall make any such contract or engage in any such combination or
conspiracy, shall be deemed guilty of a misdemeanor, and, on conviction
thereof, shall be punished by fine not exceeding five thousand dollars,
or by imprisonment not exceeding one year, or by both said punislmients,
in the discretion of the court.

It provides in section 2 that: —

Every person who shall monopolize, or attempt to monopolize, or
combine or conspire with any other person or persons, to monopolize
any part of the trade or commerce among the several states, or with
foreign nations, shall be deemed guilty of a misdemeanor.

These provisions of law have been the subject of numerous
decisions by the Supreme Court of the United States: United
States v. E. C. Knight Co., 156 U. S. 1; United States v. Trans-
Missouri Freight Association, 166 U. S. 290; United States v.
Joint Traffic Association, 171 U. S. 505; Hopkins v. United
States, 171 U. S. 578; Anderson v. United States, 171 U. S. 604;
Addyston Pipe & Steel Co. v. United States, 175 U. S. 211;
Montague & Co. v. Lowry, 193 U. S. 38; Northern Securities Co.
v. United States, 193 U. S. 197; Swift & Co. v. United States,
196 U. S. 375; Loewe v. Laivlor, 208 U. S. 274; Shawnee Com-
press Co. V. Anderson, 209 U. S. 423; and see United States v.
American Tobacco Co., 164 Fed. 700; Bigeloio v. Calumet &
Hecla Mining Co., 167 Fed. 721.

Of the cases above cited, the Northern Securities Co. v. United
States (193 U. S. 197), known as the "Northern Securities

DANA MALONE, ATTORNEY-GENERAL. 235

lase," was the most important, as it was the most sweeping in
ffect. In that case the basis of the complaint brought by the
?deral government was the acquisition by the Northern Securi-
es Company, a corporation of the State of New Jersey, of the
ontrol of the Great Northern Railway Company, operating
nes of railway which extended from Duluth and St. .Paul in
he State of Minnesota, to Portland in the State of Oregon, and
0 Everett and Seattle in the State of Washington, and the
s'orthern Pacific Railway Company, operating lines of railway
rem Ashland in the State of Wisconsin, and from Duluth and
it. Paul in the State of Minnesota, to Portland in the State of
)regon, and to Spokane, Seattle and Tacoma in the State of
Vashington, which were parallel and competing lines, and were
ngaged in active competition for interstate freight and pas-
enger traffic. This was effected by means of an exchange of
he stock issued by the Northern Securities Company for that
»f the two railroads above mentioned, and the possession of
uch stock vested in the Northern Securities Company the
;ontrol of both railroads, with the direct and necessary effect,
IS the court said, "to restrain and monopolize interstate com-
nerce by suppressing or (to use the words of this court in
United States v. Joint Traffic Association) 'smothering' compe-
-ition between the lines of tAvo railway carriers" (p. 354). A
najority of the court held this transaction to be a violation of
l:he Anti-Trust Act, so called, and the Northern Securities Com-
pany was required to reconvey to the former holders all of the
jtock of the Great Northern Railway Company and the North-
ern Pacific Railway Company which had come into its posses-
sion. After reviewing and summarizing the previous decisions
upon the Anti-Trust Act, the majority opinion laid down
certain principles as established by such decisions and within
which the case before the court was held to fall. These prin-
ciples, as declared by the court, speaking through ]Mr. Justice
Harlan, were as follows : —

That although the act of Congress known as the Anti-Trust Act has
lie reference to the mere manufacture or production of articles or com-
modities within the limits of the several States, it does embrace and

236 OPINIONS OF THE ATTORNEY-GENERAL.

declare to be illegal every contract, combination or conspiracy, in what-
ever fomi, of whatever nature, and whoever may be parties to it, which
directly or necessarily operates in restraint of trade or commerce among
the several States or ivith foreign nations;

That the act is not limited to restraints of interstate and international
trade or commerce that are unreasonable in their nature, but embraces
all direct. restraints imposed by any combination, conspiracy or monopoly
upon such trade or conamerce;

That railroad carriers engaged in interstate or international trade or
commerce are embraced by the act ;

That combinations even among private manufacturers or dealers whereby
interstate or international commerce is restrained are equally embraced by
the act;

That Congress has the power to estabhsh rules by which interstate and
international commerce shall be governed, and, by the Anti-Trust Act,
has prescribed the rule of free competition among those engaged in such
commerce;

That every combination or conspiracy which would extinguish com-
petition between otherwise competing railroads engaged in interstate
trade or commerce, and which would in that way restrain such trade or
commerce, is made illegal by the act;

That the natural effect of competition is to increase commerce, and an
agreement whose direct effect is to prevent this play of competition
restrains instead of promotes trade and coinmerce;

That to vitiate a combination, such as the act of Congress condemns,
it need not be shown that the combination, in fact, results or will result
in a total suppression of trade or in a complete monopoly, but it is only
essential to show that by its necessary operation it tends to restrain
interstate or international trade or commerce or tends to create a monopoly
in such trade or commerce and to deprive the pubUc of the advantages
that flow from free competition;

That the constitutional guarantee of liberty of contract does not pre-
vent Congress from prescribing the rule of free competition for those
engaged in interstate and international commerce; and

That under its power to regulate commerce among the several States
and with foreign nations. Congress had authority to enact the statute
in question.

The court also, in eflfect, decided that the Anti-Trust Act
might be enforced against a State corporation acting within its
charter powers, provided that such action created a combina-
tion or conspiracy which was in restraint of interstate trade;
and disposed of the contention upon the part of the defendants

DANA MALONE, ATTORNEY-GENERAL. 237

hat if the statute were held to embrace the particular case
hen under consideration it would be repugnant to the Consti-
ution of the United States.

Such, then, in brief, are the affirmative propositions estab-
shed by the Northern Securities case, and the statute must
low be taken to extend to every combination or conspiracy in
estraint of interstate commerce, whether reasonable or un-
easonable. See Shaumee Compress Co. v. Anderson, supra;
Jnitecl States v. American Tobacco Co., supra.

If the principle so declared is to be accepted without reserva-
ion or qualification, it must be conceded that it would reach
,nd forbid every kind of combination of individuals or corpo-
ations in any way engaged in interstate commerce, and would
n and of itself be decisive of the present inquiry; but in the
s'orthern Securities decision the court did not have before it a
:ase which involved the consolidation by express authority of a
5tate of two domestic railroad corporations engaged in inter-
;tate traffic, or the control of one by the other, expressly sanc-
ioned by the same authority; on the contrary, the combina-
;ion before the court was expressly forbidden by the State in
.vhich one of the constituent railroads was incorporated and
DOth were extensively operated (see Gen. Laws of Minn., 1899,
3. 359; Laws of Minn., 1881, p. 109; 1874; p. 154), and was
effected by means of a corporation of a State at a distance from
:he territory in which such railroads were located.

I conceive, therefore, that the first and more important ques-
tion which is presented by the communication of the committee
IS in substance whether or not the provisions of the Anti-Trust
A.ct include and prohibit a consohdation of two railroad corpora-
tions, such consolidation being duly authorized by the State by
which they were created, or a control of one such railroad by
the other, duly sanctioned by the Legislature of such State; and
to this inquiry I reply as follows: —

The right of a State to authorize or require or forbid the con-
solidation of corporations which are subject to its jurisdiction is
clearly recognized by the decisions of the Supreme Court of the '
United States. In Louisville & Nashville Railroad Co. v. Ken-

238 OPINIONS OF THE ATTORNEY-GENERAL.

tiicky, 161 U. S. 677, where the court was dealing with the con-
soHdation of the Louisville & Nashville Railroad Company, the
Chesapeake, Ohio & Southwestern Railroad Company and cer-
tain subordinate corporations, a consolidation alleged to be in
violation of the provisions of section 201 of the Constitution of
Kentucky of 1891, which forbade the consolidation of the
capital stock, franchise or property, or the pooling of the earn-
ings, of certain corporations, including railroad corporations, it
is nowhere intimated that the power of a State to authorize or
forbid the consolidation of railroad corporations within its
limits is to be .confined to lines of railroad engaged exclusively
in Mi^rastate commerce. Upon the other hand, the court, at
page 702, uses language which expressly concedes and confirms
the right of a State to create and to regulate the instruments of
interstate commerce within its jurisdiction, even to the extent
of permitting the purchase by one railroad corporation of the
stock of another : —

It has never been supposed that the dominant power of Congress over
interstate commerce took from the States the power of legislation with
respect to the instruments of such commerce, so far as the legislation
was within its ordinary police powers. Nearly all the railways in the
country have been constructed under State authority, and it cannot be
supposed that they intended to abandon their power over them as soon
as thej' were finished. The power to construct them involves necessarily
the power to impose such regulations upon their operation as a sound
regard for the interests of the public may seem to render desirable. In
the division of authority with respect to interstate railways Congress
reserves to itself the superior right to control their commerce and forbid
interference therewith; while to the States remains the power to create
and to regulate the instruments of such commerce, so far as 'necessary
to the conservation of the public interests.

If it be assumed that the States have no right to forbid the consolida-
tion of competing lines, because the whole subject is within the control
of Congress, it would necessarily follow that Congress would have the
power to authorize such consolidation in defiance of State legislation,—
a proposition which only needs to be stated to demonstrate its unsound-
ness. As we have already said, the power of one railway corporation to
. purchase the stock and franchises of another must be conferred by express
language to that effect in the charter; and hence, if the charter of the
Louisville & Nashville Company had been silent upon that point, it will

DANA M ALONE, ATTORNEY-GENERAL. 239

e conceded that it would have no power to make the proposed purchase
1 this case. As the power to pui-chase, then, is derivable from the State,
le State may accompany it with such limitations as it may choose to
npose.

See also Railroad Co. v. Maryland, 21 Wall. 456.

The case of Louisville & Nashville Railroad Co. v. Kentucky
•as decided on March 30, 1896, more than five years after the
assage of the Anti-Trust Act; and while the statute was not
ivolved in the question at issue, and was not referred to in the
pinion, the court must be deemed to have been well aware of
:s provisions, and upon that date to have declared that such
revisions did not limit the right of a State to regulate and
ontiol domestic railroad corporations so far as necessary to the
onservation of the public interests; and that even in the case
•f competing railroads such regulation and control did not con-
titute an interference with interstate commerce. See Pearsall
'. Great Northern Raihvay Co., 161 U. S. 646; Cleveland, etc.,
ly. Co. V. Illinois, 177 U. S. 514; Wisconsin, Minnesota &
^acific Railroad v. Jacobson, 179 U. S. 287, 297; Louisville &
Sashville Railroad Co. v. Kentucky, 183 U. S. 503, 519; see
Jso Missouri Pacific Raihvay v. Larrahee Mills, 211 U. S. 612,
)21.

It is evident that the several States have never regarded the
statute as prohibiting or even limiting their action with respect
;o the regulation and control of domestic railroad corporations
IS an exercise of the police power. In this Commonwealth the
\'ew York, New Haven & Hartford Railroad Company, the
Boston & Maine Railroad and the Boston & Albany Railroad
Company, as they now exist, are the result of numerous consoli-
lations, leases and other forms of control authorized by the
;tatutes of this Commonwealth and of other States in which
;hey have been incorporated. Subsequent to 1890, when the
\nti-Trust Statute was enacted, the Boston & Albany Railroad
Company has been leased to the New York Central & Hudson
River Railroad Company by authority of St. 1900, c. 468; the
Fitchburg Railroad Company has been leased to the Boston k
Maine Railroad by authority of St. 1900, c. 426; the Old Colony

240 OPINIONS OF THE ATTORNEY-GENERAL.

Railroad Company has been leased to the New York, New
Haven & Hartford Railroad Company by authority of the
general law (1894); and numerous other statutes have been
enacted authorizing consolidations or leases of railroads within
the Commonwealth. See St. 1894, c. 53; St. 1898, cc. 194,
399; St. 1900, c. 424 (and see St. 1906, c. 463, part I, § 67;
St. 1907, c. 585). In no one of these instances has the au-
thority of the Commonwealth or the legality of the action of
any railroad thereunder been questioned by the federal author-
ities. I cannot believe that it was beyond the power of the
Commonwealth to enact the legislation by which these con-
solidations were effected, or that the federal courts would enter-
tain bills in equity to enjoin their further continuance, or sus-
tain criminal suits against the officers who operate the lines of
railroad which they include; and in this respect I am unable to
distinguish between a consolidation and any other form of com-
bination or control. So long as a combination is created by]
State authority, it seems to me immaterial by what means it is
effected, whether by a holding company, a lease or a con-
solidation.

Notwithstanding any doubt which may be created by the
language of the decision in the Northern Securities case, I am
therefore constrained to conclude that' there is still vested in
the several States, under the police power, authority to regulate
and control domestic railroad corporations, notwithstanding
that such corporations are instrumentalities of and are engaged
in interstate commerce and in competing therefor, including the
power to authorize their consolidation or the control of one by
another through a lease or the ownership of stock; and I am
further of opinion that it is within the authority of the Com-
monwealth to pass the proposed act now before the committee,
and that action thereunder by the New York, New Haven &
Hartford Railroad Company or by any other railroad corpora-
tion chartered by the Commonwealth of Massachusetts would
not constitute a violation of the Anti-Trust Act. If the law
were otherwise it would, in my judgment, create inextricable
confusion in every State in the Union, and, in the words of Mr.

DANA MALONE, ATTORNEY-GENERAL. 241

istice Holmes, a former chief justice of the highest court of the
ommonwealth, in his dissenting opinion in the Northern Secur-
iies case, would "disintegrate society so far as it could into
dividual atoms."

Whether or not the holding company contemplated by the
•oposed statute might properly be made a party to the suit
•ought under the Anti-Trust act in the federal court, and now
mding, against the New York, New Haven & Hartford Rail-
•ad Company, is a question which must depend upon the ulti-
ate decision in that suit, and I cannot with propriety attempt
I foretell what that decision may be. I may, how^ever, sug-
'st that the allegation which concerns the ownership or con-
ol of the stock of the Boston & Maine Railroad by the New
ork, New Haven & Hartford Railroad Company is but one
nong several grounds for federal action, and is not essential
» the maintenance of the suit; and that such allegation is
ised upon a state of facts which, as I am advised, does not
3W exist, and which may be distinguished from the state of
,cts which would exist if action were taken by the New York,
ew Haven & Hartford Railroad Company under the proposed
atute now before the committee.

register of deeds is not by law required to receive and record an instrument in a
foreign language, whether or not such instrument is accompanied by a
translation.

In reply to your inquiry as to "whether or not a register of ^°J|jfn^r°^'
eeds within this Commonwealth is obliged under its laws to ^""^^^^ ^^<^oTds.
!eeive and record any instrument in a foreign language, even "°^

the said instrument be accompanied by a translation," I
ivise you that in my opinion a register of deeds is not obliged
) receive and record any instrument in a foreign language, even
lough such instrument be accompanied by a translation.

The purpose of recording an instrument in the registry of

242 OPINIONS OF THE ATTORNEY-GENERAL.

deeds is to give notice of the contents thereof. It follows that
the record must be such that a person examining it with a rea-
sonable degree of care and intelligence may obtain actual notice
of the facts recorded. Persons making such examinations can-
not, in my opinion, reasonably be required to be familiar with
languages other than English, which is the language used in the
conduct of the affairs of the Commonwealth and in ordinary
business transactions. Since the record must be in English, and
since it must be an accurate copy of the instrument recorded,
the instrument must be in English. The record of a transla-
tion of an instrument would not be in compliance with the
statutes requiring the recording of such instrument. Even if
both an original instrument in a foreign language and a trans-
lation of it were recorded, a person examining the record would
have no assurance that the translation was accurate.

State Highway — Opening — City or Tow^n — Water
Works — Service Pipes.

The water commissioners of a town are not authorized, without the permission of
the Massachusetts Highway Commission, as, required by R. L., c. 47, § 11,
to open a State highway for the purpose of laying service pipes therein, under
an act providing that, in the construction and maintenance of suitable water
works for the use of such town, they may "lay and maintain aqueducts, con-
duits, pipes and other works under and over . . . public and other waj^s" in
such town.

MMsachusetts ^^^ ^^^^^ letter of July 2 you state that the water commis-
oimmfssion. sioncrs of the town of Plainville recently opened a State high-
Juiy 12. way in that town for the purpose of laying service pipes, and

that the opening so effected was without permission from the

Massachusetts Highway Commission.

Such action is expressly forbidden by the provisions of R. L.,

c. 47, § 11, that: —

No opening shall be made in any such highway nor shall any structure
be placed thereon . . . except in accordance with a permit from the
commission, which shall exercise complete and permanent control over
such highways.

DANA MALONE, ATTORNEY-GENERAL. 243

It appears, however, that the water commissioners of the
own of Plainville make the claim that they are not required to
ecure a permit from the Massachusetts Highway Commission
n accordance with the provision above quoted, for the reason
hat chapter 404 of the Acts of 1908, entitled "An Act to au-
horize the town of Plainville to supply itself and its inhabit-
ants with water," provides in section 2 that the town, for the
lurpose of constructing and maintaining complete and effective
v'ater works, "may construct wells and reservoirs and establish
•umping works, and may construct, lay and maintain aque-
ucts, conduits, pipes and other works under and over any
ind, water courses, railroads, railways and public or other
/ays, and along such ways in the town of Plainville, in such
Qanner as not unnecessarily to obstruct the same; and for the
lurpose of constructing, laying, maintaining, operating and re-
lairing such conduits, pipes and other works, and for all proper
mrposes of this act, said town may dig up or raise and em-
•ank any such lands, highways or other ways in such manner
s to cause the least hindrance to public travel on such ways."

I am of opinion that the water commissioners of the town of
'lainville may not rely upon the provisions of the latter statute
0 justify their action in opening a State highway within that
own; and that in digging up a State highway, unless au-
horized so to do, such statute cannot serve as justification in
he premises.

244

OPINIONS OF THE ATTORNEY-GENERAL.

To the Board
of Appeal.

1909
August 11.

Taxation — Excise Tax on Express Business on any Rail-
road, Railway, Steamboat or Vessel in the Common-
wealth — Computation — Gross Earnings within the
State — Value of Capital, Bonds and Unfunded
Debt — Deductions — Stocks, Securities and Real
Estate outside Commonwealth not used in Express
Business.

In St. 1907, c. 586, as amended by St. 1908, c. 194, and St. 1908, c. 615, imposing
an excise tax upon all persons, companies, partnerships or associations doing
an express business upon any railroad, railway, steamboat or vessel in the
Commonwealth, and providing, in section 5, that such tax shall be "upon
the fair cash value of such proportion of his or its capital, bonds and unfunded
debt ... as the gross earnings of the said person, company, partnership or
association within the state, bear to his or its total gross earnings," the words,
"gross earnings . . . within the state" include earnings within the State
from interstate business, and such earnings should be considered in determin-
ing the amount of such tax.

In determining the amount "of the capital, bonds and unfunded debt" of a person,
company, partnership or association doing an express business on any rail-
road, railway, steamboat or vessel within the Commonwealth for the purpose
of computing the excise tax provided for under the statutes above cited,
property consisting of stocks, securities and real estate outside the Common-
wealth and not used in the express business should be deducted from the
total value of the capital, bonds and unfunded debt.

The Board of Appeal, constituted under R. L., c. 14, § 65,
has requested my opinion upon certain questions relative to the
computation of the tax upon the Adams Express Company and
the American Express Company imposed by St. 1907, c. 586,
as amended by St. 1908, c. 194, and St. 1908, c. 615.

This statute in section 5 requires the Tax Commissioner to
levy an excise tax upon every person, company, partnership or
association doing an express business on any railroad, railway,
steamboat or vessel in the Commonwealth, —

upon the fair casli value of such proportion of his or its capital, bonds
and unfunded debt . . ., after deducting therefrom the value of the
real estate, machinery, merchandise and other property belonging to
the person, company, partnership or association, within the common-
wealth and subject to taxation in the various cities and towiis thereof,
together with the vahie of securities owned by him or it and not hable to
local taxation, as the gi-oss earnings of the said person, company, partner-
ship or association within the state, bear to his or its total gross earnings.

DANA MALONE, ATTORNEY-GENERAL. 245

The first question submitted is as to the meaning of the words
'gross earnings . . . within the state," as used in the above
ection.

The tax imposed by the statute is similar in its nature to the
ax imposed in this Commonwealth upon telegraph companies,
md held to be constitutional in Western Union Telegraph Co. v.
Massachusetts, 125 U. S. 530 (see also Massachusetts v. Western
Jnion Telegraph Co., 141 U. S. 40), and to the taxes on express
•ompanies imposed in some other jurisdictions and sustained in
he Adams Express Cases, 165 U. S. 194; 165 U. S. 255; 166
J. S. 171; 166 U. S. 185. See also Fargo v. Hart, 193 U. S.
:90. It is an excise under the Massachusetts Constitution
neasured by the value of property within the Commonwealth
lot otherwise taxed. It is an attempt to reach the additional
•alue "gained by the property being part of a going concern."
The local tax and the excise "together fairly may be called a
commutation tax." See Holmes, J., in Galveston, Harrisburg,
'.tc., Railroad v. Texas, 210 U. S. 217, 226.

In the value of the property which is the measure of the tax,
he Legislature, in my opinion, intended to include the in-
creased value due to the use of such property in interstate com-
nerce. The tax "is intended to reach the intangible value due
:o . . . the organic relation of the property in the State to the
lA^hole system." See Holmes, J., in Fargo v. Hart, 193 U. S.
190, 499.

This can constitutionally be done. Adams Express Cases,
nipra; Fargo v. Hart, supra; Galveston, Harrisburg, etc., Rail-
'oad V. Texas, supra.

The value of property within the State, including the in-
creased value due to its use in interstate commerce, may be
ietermined by reference to gross earnings within the State, in-
cluding earnings from interstate business. In my opinion, the
vvords "gross earnings . . . within the state," as used in the
present statute, include earnings within the State from inter-
state business, and such earnings should be considered in de-
termining the amount of the excise.

The statute, unlike many statutes imposing similar taxes,

246 OPINIONS OF THE ATTORNEY-GENERAL.

does not provide a method of determining the part of the earn-
ings from interstate business to be treated as earnings within
■the State. Cf. Maine v. Grand Trunk Railway Co., 142 U. S.
217; Wisconsin & Michigan Railroad Co. v. Powers, 191 U. S.
379; Galveston, Harrisburg, etc., Railroad v. Texas, supra. Such
earnings are, therefore, to be determined as a matter of fact
without the aid of prima facie rules. I shall not attempt to
advise as to the method which should be followed in making
this determination. Unless it has been made to appear to the
Board of Appeal, as it has not to me, that the amount of the
gross earnings within the State, used by the Tax Commissioner
in the computation of the tax, includes a larger part of the
earnings from interstate business than, all things considered,
can fairly be apportioned to this State, the Board should not
revise the determination of the Tax Commissioner upon this
point.

The second inquiry is as to whether, in determining the fair
cash value of the proportion of the capital, bonds and un-
funded debt of the companies upon which the tax is levied,
property consisting of stocks, securities and real estate outside
the Commonwealth not used in the express business should be
deducted from the total value of capital, bonds and unfunded
debt.

In my opinion this deduction should be made. Fargo v.
Hart, supra, is decisive upon the point that such property can-
not be used as the measure of a tax such as is here in question.
See also Delaware, Lackawanna & Western Railroad Co. v. Penn-
syhania, 198 U. S. 341. The reason is clear. The tax is, in
effect, a tax on the property by which it is measured. A State
cannot tax property outside its jurisdiction. The more diffi-
cult question is whether such property should be deducted in
computing the tax, or whether the statute should be regarded
as unconstitutional as an attempt to tax property not within
the jurisdiction of the Commonwealth. In my judgment, the
former is the better view. Though the requirement of such a
deduction may not be read into the statute except for good
reason {American Glue Co. v. Commonwealth, 195 Mass. 528,

DANA MALONE, ATTORNEY-GENERAL. 247

130), there is, in the fact that otherwise federal constitutional
equirements would be infringed, a sufficient reason for implying
.uthority to make such deduction. Such a construction is in
.ccord with the established principle stated in Pittsburg, etc.,
Railway Co. v. Backus, 154 U. S. 421, 428: —

It is not to be assumed that a State contemplates the taxation of any
iroperty outside its territorial limits, or that its statutes are intended
0 operate otherwise than upon persons and property within the State,
t is not necessary that every section of a tax act should in terms declare
he scope of its territorial operation. Before any statute will be held to
titend to reach outside property, the language expressing such intention
Qust be clear.

The conclusion which I have reached as to the second inquiry
s in accord with an opinion given by my predecessor to the Tax
I"ommissioner under date of Dec. 1, 1905.

Taxation — Exemption — Woodland used for Educational
Purposes — Forestry.

4. tract of woodland, acqmred and used by Harvard University for the purpose of
instruction in forestry, is owned and occupied for educational purposes, and
is therefore exempt from taxation, under the provisions of R. L., c. 12, § 5,
cl. 3, which exempt from taxation real estate owned and occupied by literary,
charitable and scientific institutions for the purpose for which such institutions
are incorporated.

You have requested my opinion as to whether a tract of commiSfoner.
ibout seventeen hundred acres of woodland, situated in the August i3.
town of Petersham, acquired by Harvard University for the
teaching of forestry, is subject to taxation.

The woodland in question is taxable unless it is exempt be-
cause owned and occupied by Harvard University, or its officers,
tor the purposes for which the university was incorporated.
R. L., c. 12, § 5, cl. 3. I am of opinion that it is exempt on
this ground. No question is made but that the teaching of
forestry is within the broad educational purposes for which
Harvard University was incorporated. That woodland is as

248 OPINIONS OF THE ATTORNEY-GENERAL.

necessary for the teaching of forestry as is a farm for the teach-
ing of agriculture, is apparent. As a farm is exempt from tax-
ation if used in the teaching of agriculture {ML Hermon Boys'
School V. Gill, 145 Mass. 139), so, in my judgment, woodland
used in the teaching of forestry is likewise exempt from taxa-
tion. To claim this exemption, of course, the officers of the
university must, in their use of the woodland, be acting in good
faith and reasonably. Emerson v. Trustees of the Milton
Academy, 185 Mass. 414, 415. So far as disclosed by the facts
submitted to me and agreed to by the assessors of the town and
by the representative of the university, there is nothing to in-
dicate that the use of the woodland in question is not in good
faith and reasonable. It does not appear that the area is un-
reasonably large. It appears that the sales of lumber from the
woodland are considerable in amount, but this fact does not
deprive the university of its exemption, if such sales are merely
incidental to the main use of the woodland as a place and
means of instruction. From the statement submitted, it is to be
inferred that such sales are merely incidental to such main use.
A part of the tract (whether of the seventeen hundred acres
situated in the town of Petersham or of three hundred in the
adjoining town of Phillipston is not stated) is poor farming
land, on which are a dwelling house which is occupied and used
by students, two barns and a few other buildings. This dwell-
ing house is used as a dormitory and dining room and for lec-
ture rooms; the resident superintendent lives in one wing of it.
It is, by reason of this use, exempt from taxation. See Harvard
College v. Cambridge, 175 Mass. 145. The barns and other
buildings are exempt from taxation, since they are used for pur-
poses incidental to instruction in forestry. See Mt. Hermon
Boys' School v. Gill, supra; Emerson v. Trustees of Milton
Academy, suyra. The farming land not occupied by buildings
is not used for purposes inconsistent with the general use of the
woodland. It would be difficult to acquire a large area of
woodland without some open. Under authority of Wesleyan
Academy v. Wilhraham, 99 Mass. 599, 604, it is exempt from
taxation.

DANA MALONE, ATTORNEY-GENERAL. 249

Taxation — Business Corporation — Deductions — Stocks
and b0nt)s subject to taxation if owned by a natural
Person Resident in this Commonwealth.

n the assessment of the franchise tax upon a business corporation under St. 1903,
c. 437, or St. 1909, c. 49, part III, the value of stocks and bonds which
would be subject to taxation if owned by a natural person in this Common-
wealth should not be deducted from the value of the corporate franchise.

You have requested mv opinion as to the method of deter- To th^ Tax

Commissioner.

nining the amount upon which the franchise tax upon domestic October 22
msiness corporations is to be assessed.

By St. 1903, c. 437, § 72, codified as St. 1909, c. 490, part
.II, § 41, cl. 3, it is provided that there shall be deducted from
;he value of the shares constituting the capital stock of a do-
nestic business corporation the value "of its property situated
n another state or country and subject to taxation therein,"
ind "of securities which if owned by a natural person resident
n this commonwealth would not be liable to taxation." In
5t. 1903, but not in the codification, it is further provided that
'from such value there shall not be deducted securities which,
f owned by a natural person resident in this commonwealth,
(vould be liable to taxation."

Your inquiry is whether there should be deducted from the
value of the shares constituting the capital stock of such a cor-
poration the value of "certain stocks and bonds, all of which
*\'ould be subject to taxation if owned by a natural person resi-
dent in this Commonwealth, which stocks and bonds upon the
first day of May are situated in New York and Illinois."

In determining the amount upon which the franchise tax upon
a business corporation is to be assessed, no deductions are to be
made other than those expressly authorized by statute. Com-
momvealth v. New England Slate & Tile Co., 13 Allen, 391; Cf.
Commomcealth v. Hamilton Mfg. Co., 12 Allen, 298; Manufac-
tnrers' Insurance Co. v. Loud, 99 Mass. 146; Home Insurance
Co. V. New York, 134 U. S. 594.

In view of the express provision of St. 1903, it is clear that
under that law the value of the stocks and bonds in question

250

OPINIONS OF THE ATTORNEY-GENERAL.

should not be deducted from the value of the shares constitut-
ing the capital stock of the corporation. The provisions of the
codification, which took effect on the thirtieth day after June
12, 1909 (R. L., c. 8, § 1), are to be construed as continuations
of existing statutes (section 26). Such codification is not to be
presumed to have changed the law unless the intention clearly
appears. Wright v. Dresser, 140 Mass. 147, 149. The commis-
sion which reported the codification expressly disclaim any in-
tention to change the law (report of the Commission on Taxa-
tion, .January, 1908, pp. 12, 79), and the same construction can
reasonably be given to the law as codified as was given to the
earlier law. It is, therefore, unnecessary for me to express an
opinion as to which law governs, since, in my judgment, under
either law the value of the stocks and bonds referred to is not
to be deducted.

To the Bank
Commissioner.

1909
October 26.

Corporation — Name or Title containing the Words
"Bank" or "Banking."

The provisions of St. 1909, c. 491, § 4. amending St. 1908, c. 590, § 16, that no
person, partnership, corporation or association, except co-operative banks,
savings banks and trust companies incorporated under the laws of this
Commonwealth, and such foreign banking corporations as were doing business
therein and were subject to the examination or supervision of the Bank
Commissioner on June 1, 1906, should thereafter "transact business under
any name or title which contains the word 'bank' or 'banking,' as descriptive
of said business," are applicable to a corporation organized prior to the
passage of such act.

I have your letter of the 19th inst., in which you request my
opinion as to whether or not it is in violation of chapter 491
of the Acts of 1909 for any corporation chartered by this Com-
monwealth prior to the passage of said act to continue to use
the words "bank" or "banking" in connection with its busi-
ness. Your reference is to section 4 of the act cited, which
amends St. 1908, c. 590, § 16, by adding at the end thereof the
words: "Nor shall any person, partnership, corporation or asso-
ciation except co-operative banks incorporated under the laws
of this commonwealth and corporations described in the first
sentence of this section hereafter transact business under any

DANA MALONE, ATTORNEY-GENERAL. 251

ime or title which contains the words 'bank' or 'banking,' as
?scriptive of said business." The corporations described in the
•st sentence of the section are " savings banks and trust com-
mies incorporated under the laws of this commonwealth," and
such foreign banking corporations as were doing business in
is commonwealth and were subject to examination or super-
sion of the commissioner on June first, nineteen hundred and
v.

This statute is in the nature of a police regulation for the pre-
•ntion of fraud. Its purpose is evidently to prevent persons,
irtnerships, corporations and associations other than those
ider the supervision of the Bank Commissioner from holding
iCmselves out as banks or banking institutions. It is in-
nded that any one dealing with a corporation which transacts
isiness under a name or title containing the words "bank"
• "banking" shall have the assurance that he is safeguarded
such dealing by provisions of law and by State supervision,
his purpose wholly fails if the prohibition in the statute under
)nsideration be construed as not applying to corporations
rmed prior to its enactment.

The language of the statute, apart from other considerations,
dicates that the Legislature meant that the prohibition should
jply to corporations, whenever formed. If the Legislature had
tended it to apply only to corporations formed after its enact-
ent, it could readily have said so. If this had been the inten-
on, the prohibition, in the case of corporations, would natu-
.lly have been against incorporation rather than against the
ansaction of business under such name or title. The prohi-
tion, as applied to corporations, is the same as applied to
arsons, yet no one would suggest that the prohibition as to
arsons applied only to those commencing business after the
issage of the act.

The history of the statute, so far as it is of any assistance,
ads to the same conclusion. The statute was passed at the
stance of the Bank Commissioner, who recommended legisla-
on prohibiting the doing of business under such name or title
by organizations not incorporated under banking or trust

252 OPINIONS OF THE ATTORNEY-GENERAL.

company laws of this Commonwealth." There is here no sug-
gestion of a limitation to corporations afterward formed.

The hardship caused by the statute, construed in this man-
ner, is not unreasonably severe. A change in the name of a
corporation may readily be effected. See St. 1903, c. 437, § 40.
Of course the name has a value which would be destroyed by a
change, but to require a change in name imposes no greater
hardship upon the corporation than upon a person, partnership
or association. At any rate, the hardship is no greater than the
Legislature may properly impose under a police regulation. No
constitutional rights are invaded.

These considerations lead me to the conclusion which I have
stated, — that the prohibition in the statute applies to the cor-
porations not expressly excepted therefrom, regardless of the
time of formation.

Insane Peeson — Guardian — Petition to sell Real
Estate — Notice.

Under the provisions of St. 1909, c. 504, § 102, that upon a petition of a guardian
for license to sell property of a spendthrift or of an insane person a license to
sell shall not be granted to such guardian unless "seven days' notice of the
petition therefor has been given to the overseers of the poor of the city or
town in which the spendthrift resides, or to the state board of insanity in
the case of an insane person," such notice, in the case of an insane person,
is to be given only to the State Board of Insanity.

R. L., c. 145, § 41, providing that a conservator shall give bond as required of
guardians of insane persons, and making all provisions of law relative to the
management, sale or mortgage of the property of insane persons applicable
to such conservator, is not repealed by St. 1909, c. 504, §§ 99-102, inclusive,
providing for the appointment of guardians for insane persons and spend-
thrifts, and is to be construed in connection with such statutes.

To^t^hejtate You havc rcqucsted my opinion as to the construction of St.

^"'%^- 1909, c. 504, §§ 99, 100, 101 and 102, with reference to the fol-

Novemb_er 1. j^^^^j^^^ questions : —

First: must notice of guardian's petition for license to sell property
of an insane person be given only to the overseers of the poor of the city
or town in which said insane person resides, or to the said overseers and
to the State Board of Insanity or only to the State Board of Insanity ?

Second: what effect does chapter 504, Acts of 1909, sections 99 to

DANA MALONE, ATTORNEY-GENERAL. 253

)2 inclusive, have upon Revised Laws, chapter 145, section 41, in re-
ird to notices to be sent to the Board of Insanity ?

The sections of the statute referred to are as follows: —

Section 99. If the relatives or friends of an insane person, or the

ayor and aldermen of a city or the selectmen of a town in which he is
1 inhabitant or resident, or the state board of insanity, apply to the
•obate court to have a guardian appointed for him, the court shall
luse not less than seven days' notice of the time and place appointed
r the hearing to be given to him and to the state board of insanity,
;cept that the court may, for cause shown, direct that a shorter notice
? given to liim and to the said board; and if after a hearing the court
ids that he is incapable of taking care of himself, it shall appoint a
lardian of his person and estate. A copy of such appointment shall be
:nt by mail by the register to the said board. If in the opinion of the
)urt additional medical testimony as to the mental condition of the person
Jeged to be insane is desirable, it may require such person to submit to
camination, and may appoint one or more physicians, expert in insanity,
) examine such person and report their conclusions to the court. Reason-
ble expense incurred in such examination, shall be paid out of the estate
t such person, or by the county, as may be determined by the court.

Section 100. Upon the petition of the mayor of a city, the select-
ion of a town, the overseers of the poor of a city or town, the state board
f insanity, or other person in interest, the court may, if it finds that the
'elfare of a minor, insane person, or spendthrift requires the immediate
ppointment of a temporary guardian of his person and estate, appoint

temporary guardian of such minor, insane person, or spendthrift, with
r without notice, and may in like manner remove or discharge him or
snninate the trust. A temporary guardian may proceed and continue
1 the execution of his duties, notwithstanding an appeal from the de-
ree appointing him, until it is otherwise ordered by the supreme judicial
ourt, or until the appointment of a peraianent guardian, or until the
rust is otherwise legally terminated.

Section 101. No final account or discharge of a guardian of an in-
ane person shall be allowed under the provisions of chapter one hundred
nd forty-five of the Revised Laws, unless at least seven days' notice of
he petition therefor has been given to the state board of insanity.

Section 102. A Hcense to sell shall not be granted to the guardian
'f a spendthrift who resides in this commonwealth, or of an insane person,
inless seven days' notice of the petition therefor has been given to the
iverseers of the poor of the city or town in which the spendthrift resides,
r to the state board of insanity in the case of an insane person. Such
lotice may be served upon any one of said overseers or board.

254 OPINIONS OF THE ATTOENEY-GENERAL.

In my opinion, the statute, in section 102, provides that
notice of a guardian's petition to sell property of an insane per-
son who resides in this Commonwealth shall be given only to
the State Board of Insanity. The provision as to notice to the
overseers of the poor applies only to the case of a spendthrift.
The language of the act seems to me clear, and the construction
indicated is in accord with the general purpose of the act, to
bring all matters relative to the care and support of the insane
into the hands of State officials.

In reply to the second question, my opinion is that since
R. L., c. 145, § 41, has been neither repealed nor amended, it is
to be construed as still in force and to be read with the statute
above quoted. R. L., c. 145, § 41, is as follows: —

Such conservator shall give bond as is required of guardians of in-
sane persons, and all provisions of law relative to the management, sale
or mortgage of the property of insane persons shall apply to such con-
servator.

Since St. 1909, c. 504, contains the present provisions of law
relative to the management, sale or mortgage of the property of
insane persons, the provisions of sections 99-102 are applicable
to the cases of persons for whose property conservators have
been appointed, and notice of petitions for the disposition of
property in the hands of conservators must be given to the
State Board of Insanity.

While, however, this is in my opinion clearly the effect of the
statutes as they stand, it would seem that the situation may
have been the result of an oversight upon the part of the Legis-
lature. St. 1909, c. 504, expressly provides that in the case of
a spendthrift the guardian's ntttice shall be given to the over-
seers of the poor of the city or town where the spendthrift re-
sides. The position of an aged person whose property is in the
hands of a conservator is more nearly analogous to that of a
spendthrift than that of an insane person, and as a matter of
administration it would seem that the law should be so amended
as to require the conservator to give notice of his petitions to the
overseers of the poor rather than to the State Board of Insanity.

DANA MALONE, ATTORNEY-GENERAL. 255

i'oREiGN Corporation — Usual Place of Business — Com-
missioner OF Corporations.

"he words "usual place of business," in R. L., c. 126, § 4, which provides that
every foreign corporation which has a usual place of business within the
Commonwealth, or is engaged therein, permanently or temporarilj', in the
construction, erection, alteration or repair of a building, bridge, railroad,
railway or structure of any kind, shall, before doing business in this Common-
wealth, in writing appoint the Commissioner of Corporations and his successor
in office to be its true and lawful attorney, include a foreign corporation
which has executive offices within the Commonwealth where a considerable
part of the management of the business of the company is carried on.

You have requested my opinion as to whether certain for- To the Com-
ign pubHc service corporations for which the Stone & Webster Corporations.
lanagement Association acts as general manager may be said November 5.
0 have usual places of business in this Commonwealth, and
hus become subject to the provisions of chapter 126 of the
levised Laws.

A foreign public service corporation is subject to the provi-
ions of this chapter if it "has a usual place of business in this
commonwealth" (section 4). The language quoted is the
ame as that used in R. L., c. 14, § 50, and in St. 1903, c. 437,
i58.

Under date of Oct. 26, 1908, I advised you that "the phrase
usual place of business' used in the Revised Laws is broad
nough to include corporations which had within this Common-
i^ealth offices used solely for directors' meetings or transfer
'ffices . . .", and that these words in section 58 of the business
orporation act "are to be construed as they were to be con-
trued under the earlier act." In this opinion I was interpret-
ng the law relative to mining companies. I am, however, of
•pinion that the words "usual place of business" are to be.
onstrued in the same way in the section now under consider-
tion as in the sections of the Revised Laws dealing with min-
ng companies and in the statute dealing with business corpo-
ations. Li my opinion, if the companies in question actually
lave executive offices here, at which offices a considerable part
'f the management of the companies' business is carried on,
hey have usual places of business here within the meaning of

256

OPINIONS OF THE ATTORNEY-GENERAL.

chapter 126 of the Revised Laws. Cf. People v. Horn Silver
Mining Co., 105 N. Y. 76.

I do not attempt to pass upon the specific cases submitted,
since each case must be determined upon its special facts.

To the Bank
Commissioner.

1909
November 11.

Savings Banks — Authorized Investments — First Mort-
gages OF Real Estate — Notes secured by a Mort-
gage OF Real Estate to a Trust Company.

Notes secured by a mortgage of a tract of land with buildings thereon to a trust
company as trustee, as security for an issue of notes made by the owners
of the property, of which the notes in question are a part, are not a legal
investment for savings banks, since they do not constitute an investment
in "first mortgages of real estate," within the provisions of St. 1908, c. 590,
§ 68, cl. 1, defining authorized investments for savings banks in this Com-
monwealth.

You ask my opinion as to whether it is lawful for a savings
bank to invest in notes secured by a mortgage of a tract of land
with buildings thereon to a trust company, as trustee, as secur-
ity for an issue of notes made by the owners of the property of
which the notes referred to are a part. These notes amount
on the whole to less than 60 per cent, of the value of the real
estate subject to the mortgage.

St. 1908, c. 590, § 68, cl. 1, which defines authorized invest-
ments for savings banks, is as follows: —

First. In first mortgages of real estate located in this commonwealth
not to exceed sixty per cent of the value of such real estate; but not more
than seventy per cent of the whole amount of deposits shall be so in-
vested. If a loan is made on unimproved and unproductive real estate,
the amount loaned thereon shall not exceed forty per cent of the value
of such real estate. No loan on mortgage shall be made except upon
wi-itten application showing the date, name of applicant, amount asked
for and security offered, nor except upon the report of not less than two
members of the board of investment who shall certify on said application,
according to their best judgment, the value of the premises to be mort-
gaged; and such application shall be filed and preserved with the records
of the corporation.

At the expiration of every such loan made for a period of five or more

DANA M ALONE, ATTORNEY-GENERAL. 257

ears not less than two members of the board of investment shall certify
I wTiting, according to their best judgment, the value of the premises
lortgaged; and the premises shall be revalued in the same manner at
iterv-als of not more than five years so long as they are mortgaged to
:eh corporation. Such report shall be filed and preserved with the
icords of the corporation. If such loan is made on demand or for a
lorter period than five years, a revaluation in the manner above pre-
iribed shall be made of the premises mortgaged not later than five years
"ter the date of such loan and at least every fifth year thereafter. If at
le time a revaluation is made the amount loaned is in excess of sixty per
■nt, or in the case of unimproved and unproductive real estate in excess
■ forty per cent, of the value of the premises mortgaged, a sufficient
I duction in the amount of the loan shall be required, as promptly as
I ay be practicable, to bring the loan within sixty per cent, or in the case
' unimproved and unproductive real estate within forty per cent, of the
ilue of said premises.

Savings banks cannot invest in any notes of the kind de-
mhed unless such investment is authorized by clause 1 of
16 above section, which authorizes investments in "first mort-
ages of real estate located in this commonwealth, not to ex-
3ed sixty per cent, of the value of such real estate." The
uestion is, therefore, whether the investment described is an
ivestment in "first mortgages of real estate."

A similar question was considered by Attorney-General

Lnowlton. (1 Op. Atty.-Gen. 434.) St. 1894, c. 317, § 21,

'as then in force. It did not differ materially, so far as this

aestion is concerned, from the present statute. In that opinion

le then Attorney-General said : —

I am of opinion, however, that the purchase of bonds by a savings
ank, which are a portion of a larger number secured by a mortgage
ven by the obligor to a third person as trustee for the benefit of bond-
elders, is not a "loan upon mortgage," within the meaning of the stat-
ues relating to savings banks. . . . "Loans upon first mortgages of real
■tate," as that expression is used in the statute, are loans made to an
dividual or a corporation upon the security of a mortgage given by the
)rrower to the savings bank. Certain rights attach to the holder of a
ortgage which do not appertain to the holder of a bond secured by a
ortgage in the hands of a trustee. It was, in my opinion, the inten-
3n of the statute to authorize savings banks to loan upon mortgages only

258 OPINIONS OF THE ATTORNEY-GENERAL.

when the full and unrestricted rights of mortgagees are conferred upon
the bank, to the end that the entire control and custody should be in the
hands of the bank. (Page 435.)

In an opinion of Attorney-General Parker (2 Op. Atty.-
Gen. 593) the same provision of statute, then R. L., c. 113,
§ 26, cl. 1, was under consideration, and it was pointed out that
in the case of an assignment of a mortgage to a savings banlc
the section contemplates one "which should have effect to vest
in the latter (that is, the savings bank) the full and unrestricted
rights of a mortgagee in the premises."

The general propositions stated in these opinions were clearly
correct, and no reason appears for now departing from them.

It is true that certain of the specific objections existing in
the case considered in the opinion of the Attorney-General first
cited (1 Op. Atty.-Gen. 434) have been done away with. The
trustee cannot require indemnity before foreclosing; he has no
prior lien on the property for his charges; there is no express
exemption from responsibility for the negligence of agents and
the trustee has not discretion as to whether or not to foreclose.
It is to be noticed, however, that any holder of a note may re-
quest foreclosure. The result is that some other person holding
a note secured by the mortgage in question might insist upon
foreclosure, although the bank did not wish it, and the bank
could not prevent such foreclosure. The bank has not, then,
entire control and custody as it would have in the case of a
mortgage held by it directly.

It is not clear to me that it is contemplated to comply with
the provisions of the first clause of section 68, which provides
that "no loan on mortgage shall be made except upon written
application showing the date, name of applicant, amount asked
for and security offered, nor except upon the report of not less
than two members of the board of investment who shall certify
on said application, according to their best judgment, the value
of the premises to be mortgaged." If this is not done, clearly
the loan would not be one authorized by the statute. It is
further provided in the second paragraph of the first clause of
said section that at the expiration of every such loan there must

DANA MALONE, ATTORNEY-GENERAL. 259

)e a revaluation by the board of investment at intervals of not
nore than five years so long as they are mortgaged; and also
hat "If at the time a revaluation is made the amount loaned
3 in excess of sixty per cent of the value of the premises mort-
;aged, a sufficient reduction in the amount of the loan shall be
equired, as promptly as may be practicable, to bring the loan
,ithin sixty per cent, of the value of the premises."

The deed of trust, a copy of which is submitted to me,
lakes no provision for such a contingency; and from a careful
onsideration of the statute I am of opinion that such a loan
;'as not contemplated by the Legislature, but that the words
so long as they are mortgaged to such corporation" mean a
irect mortgage to the savings bank itself and not to a trustee.

am, therefore, of opinion that such an investment in the case
escribed is not an investment in "first mortgages of real es-
ate." As pointed out in the opinion first quoted, such forms
f loans are becoming more frequent, and it may be that the
/Cgislature will authorize savings banks to purchase them; but
ntil such time comes I am of opinion that savings banks can-
ot legally invest therein.

Trust Company — Reserve — Time Deposit.

n agreement in -wTiting, payable thirty days after demand or notice, is a time
deposit payable at a stated time, within the meaning of St. 1908, c. 520, § 8,
which provides that "every trust company . . . shall at all times have on
hand as a reserve an amount equal to at least fifteen per cent of the aggregate
amount of its deposits, exclusive of savings deposits and of time deposits
represented by certificates or agreements in writing and payable only at a
stated time."

You request my opinion as to whether an agreement in writ- J°j^^i^fo°n''er
ig, payable thirty days after demand or notice, is a time de- j^.^vem'ber 12.
osit payable at a stated time, and therefore exempt from the
iserve requirements.

St. 1908, c. 520, § 8, provides that: —

Every trust company doing business within the commonwealth shall
'■> all times have on hand as a reserve an amount equal to at least fifteen

200 OPINIONS OF THE ATTORNEY-GENERAL.

per cent of the aggregate amount of its deposits, exclusive of savings
deposits and of time deposits represented by certificates or agreements in
writing and payable only at a stated time, but whenever such time de-
posits may be withdrawn within thirty days they shall be subject to the
reserve requirements of this act; and every trust company doing business
in the city of Boston shall at all times have on hand as a reserve an amount
equal to at least twenty per cent of the aggregate amount of its deposits
computed in the same manner.

In my opinion, this law requiring a reserve does not apply to
deposits of the character described in the question. The de-
posits in question cannot be withdrawn within thirty days, but
only thirty days after demand or notice, and therefore come
within the terms of the statute which exempts deposits payable
at a stated time from the reserve requirement.

Official Bond — Surety — Married Woman

Principal.

^YIFE OF

Under the provisions of R. L., c. 153, § 2, that "a married woman may make con-
tracts, oral and written, sealed and unsealed, in the same manner as if she
were sole, except that she shall not be authorized hereby to make contracts
with her husband," a married woman may, as surety, sign the official bond
of her husband.

In answer to your communication, dated November 17, in
which you inquire whether or not a wife is eligible as surety

To the
Controller
of County
Accounts.

November 23. upon the official boud of her husband, I beg to refer you to the
provisions of R. L., c. 153, § 2, which section is as follows: —

A married woman may make contracts, oral and ■wi'itten, sealed and
unsealed, in the same manner as if she were sole, except that she shall
not be authorized hereby to make contracts with her husband.

This statute "enables a married woman to 'make contracts,
oral and written, sealed and unsealed, in the same manner as
if she were sole,' and does not require that the consideration of
her contracts should enure to her own benefit. The provision
that nothing in this act shall authorize her 'to convey property
to, or make contracts with, her husband,' is evidently not in-

I DANA MALONE, ATTORNEY-GENERAL. 261

[tended to impose any new restriction on her capacity, but
merely to affirm the rule of the common law, so far as her
husband is the other party to her grant or contract; and does
not prevent both of them from binding themselves by a joint
promise to a third person, within the authority conferred by the
statute. Parker v. Kane, 4 Allen, 346," {Major v. Holmes, 124
Mass. 108.) See also Binney v. Globe National Bank, 150 Mass.
574.

It follows, therefore, that a married woman may, as surety,
, sign the official bond of her husband.

[ndustrial Education — Independent Industrial Schools
— State Board of Education — Public Schools —
Cities and Towns.

The provisions in sections 2 and 3 of chapter 505 of the Acts of 1906 for the establish-
ment of independent industrial schools, for the maintenance of which the
Commonwealth has in part to reimburse the municipalities by which such
schools are established, do not create distinct classes of schools after establish-
ment, but rather prescribe methods by which such schools may be created,
and contemplate industrial schools, the establishment of which has been
initiated and superintended by the Commission on Industrial Education, or
by its successor, the State Board of Education, or has been provided for by
the municipality in which such school is located.

An independent industrial school, so established, must be in addition to, and not
a part of, the public school system of the city or town where such school is
located.

You request my opinion upon the question whether or not To^thejtate
schools which had been maintained in certain cities as evening Education.
schools, in which industrial education had to some extent been Januarys.
introduced, and which were abandoned by such cities and then
established by the Commission on Industrial Education as in-
dependent industrial schools, to be carried on in co-operation
with the respective cities, are independent industrial schools
within the meaning of St. 1906, c. 505, and acts in amendment
thereof or addition thereto.

St. 1906, c. 505, was inartificially drawn in the first instance,
and has been frequently amended without apparent effort to
bring such amendments into harmony with the existing pro-

262 OPINIONS OF THE ATTORNEY-GENERAL.

visions of law. It seems to me, however, that chapter 505 con-
templated that the commission should initiate and superintend
the establishment of, and the municipalities should provide, in-
dustrial schools which should be independent of and in addition
to the public or common schools required by law to be estab-
lished and maintained by the various cities and towns of the
Commonwealth, and that the commission should have a general
superintendence over the whole field of industrial education, and
should have full power with respect to the disbursement of all
money, whether appropriated by a municipality or by the Com-
monwealth, for industrial education. See St. 1908, c. 572.

St. 1909, c. 540, amended section 5 of chapter 505 of the Acts
of 1906, which now reads as follows: —

Upon certification by the board of education to the auditor of the
commonwealth that a city, to^vn or district, either by moneys raised by
local taxation or by moneys donated or contributed, has maintained
an independent industrial school, the commonweahh, in order to aid in
the maintenance of such schools, shall pay annually from the treasury
to such cities, towns or districts a smu equal to one half the sum
raised by local taxation for this purpose: provided, that no payment to
any city or town shall be made except by special appropriation by the
legislature.

Chapter 457 of the Acts of 1909 provides for the consoHda-
tion of the Board of Education and the Commission on Indus-
trial Education, and there appear to be no provisions in the
statute which affect the powers of the Board of Education, as
successor to the Commission on Industrial Education, with re-
spect to that branch of its work.

After some consideration of the subject, I am of opinion that
the independent industrial schools for the maintenance of which
the Commonwealth is in part to reimburse the municipalities by
which such schools are established, are industrial schools the
establishment of which has been initiated and superintended by
the commission in the first instance, or by its successor, the
State Board of Education, or has been provided for by the
municipality in which it is located; and that the provisions of
sections 2 and 3 of said chapter 505, with respect to initiating

DANA MALONE, ATTORNEY-GENERAL. 263

the establishment of and providing for such schools, do not
refer to distinct classes of schools after establishment, but to
the methods by which independent schools may be set in
motion. I am further of opinion that our legislation clearly
contemplates a course of instruction and a class of schools in
addition to the public school system as established by law in
this Commonwealth, and that an independent industrial school
cannot be a part of the public school system of any munici-
pahty. What was apparently done by the Commission on In-
dustrial Education was to arrange with a municipality that a
part of the public school system, in which more or less industrial
education had been introduced, should be abandoned by the
city and taken over by the commission as an independent indus-
trial school. In no case does it appear that an independent
school was established in addition to the educational facilities
already maintained in any municipality, but, on the contrary,
such municipality discontinued a branch of its public school
system, which was then, with some changes in courses of in-
struction, taken over as an independent school. This, in my
opinion, was not the intent of the statute, since in no case was
an independent school established. The only effect of the ac-
tion so taken was to transfer the control and the responsibility
for the maintenance of an existing school or educational institu-
tion; and where the statute contemplated opportunities in the
direction of industrial studies in addition to the educational
opportunities offered by the public schools, it results that the
industrial courses are offered more or less at the expense of the
instruction in the public schools, as such. I am of opinion
that this course was not what the statute contemplated when
it authorized the commission to initiate and superintend the
establishment of industrial schools. If schools such as you
describe are independent schools within the meaning of the
statute, the cities and towns by which they are maintained may,
of course, be reimbursed, and this reimbursement would extend
to section 4 of chapter 572 of the Acts of 1908. If they are not,
and from the facts presented to me they appear not to be, no
reimbursement can be had.

264

OPINIONS OF THE ATTORNEY-GENERAL.

To the Bank
Commissioner

1910
January 18.

Savings Bank — National Bank or Trust Company — Con-
nected Offices — Elevator or Dumb-waiter.

A connection between a savings bank having an office upon the second floor of a
building and a national bank or trust company upon the floor below by means
of a small lift or dumb-waiter, is forbidden by the provision of St. 1908,
c. 590, § 19, that "no savings bank shall occupy the same office or suite of offices
with a national bank, trust company or other bank of discount, nor any office
directly connected by means of doors or other openings in partitions with
the office or suite of offices used or occupied by any such national bank, trust
company or other bank of discount."

You ask my opinion as to whether section 19 of chapter 590
of the Acts of 1908 is violated where there is a connection be-
tween a savings bank, having an office on the second floor of a
building, and a national bank or trust company underneath,
occupying the first floor, by means of a dumb-waiter or small
lift, sufficiently large for the transportation of money or securi-
ties by an opening through the floor, but not large enough for
the use of a person.

St. 1908, c. 590, § 19, is as follows: —

No savings bank shall occupy the same office or suite of offices with a
national bank, trust company or other bank of discount, nor any office
directly connected by means of doors or other openings in partitions with
the office or suite of offices used or occupied ty any such national bank,
trust company or other bank of discount. Any such corporation \'io-
lating the provisions of this section shall be punished by a fine of not
more than five hundred dollars.

The law provides that a savings bank shall not have an office
directly connected by means of doors or other openings in parti-
tions with the office occupied by a national bank or trust com-
pany.

I am of opinion that in the case described by you there is
such a connection, and that the law was intended to, and does,
prohibit such connection. I do not see how such an opening
can be made in the ceiling of the room, so as to connect the
two institutions, if it cannot be made in the sides. I think the
word "partition" is broad enough to cover both cases, and such
connection is therefore prohibited by the statute.

DANA MALONE, ATTORNEY-GENERAL. 265

iuiLDixG Regulations — City of Boston — Boston State

Hospital.

he Boston State Hospital, of which the custody, control and management are
vested, under the provisions of St. 1909, c. 504, §§ 14-23, in the State Board
of Insanity and the trustees of said institution, is not subject to the inspection
and regulation of the officials of the city of Boston with relation to gas, electric
Hghting and plumbing therein.

You have requested mv opinion as to whether the Boston To the state

, "^ . . . Board of

tate Hospital is subject to the regulation and inspection of the ^'^^'^q'jq^-
flficials of the city of Boston with relation to gas, electric light- January 27.
ig and plumbing connected wuth the institution.

By the provisions of St. 1909, c. 504, §§ 14-23, the custody,
lanagement and control of the Boston State Hospital are en-
rusted to the State Board of Insanity and to the trustees of the
ospital. Upon the State Board of Insanity are also imposed
he duties of supervision, of approving plans and specifications
or buildings, of making frequent visitations and careful inspec-
ions.

Since the Commonwealth has taken upon itself the entire
ustody and management of the property in question, and has
•y the provisions of the statute referred to regulated the con-
luct of its officers and agents in that custody and management,
fc must be considered to have retained these matters within its
pecial and peculiar jurisdiction.

The statutes providing for regulation and inspection by offi-
ials of the city of Boston constitute a delegation of the police
)Ower of the Commonwealth, and that delegation is to be
trictly construed. It is a presumption of law^ that the Legis-
ature, in delegating that power, had primarily in view the
egulation of the conduct of the citizen and not that of the
IJommon wealth. Therefore, while the provisions of the statutes
vith reference to regulation and inspection by city officials are
general in their terms, and do not expressly exclude from their
cope any property within the limits of the city, there is an
mplied exception of the property owned and controlled by the
Tommonwealth itself, and retained, through the provisions of
he special statute cited, under its own jurisdiction. See 1 Op.

266 OPINIONS OF THE ATTORNEY-GENERAL.

Atty.-Gen. 290; Teasdale v. Newell, etc., Construction Co., 192
Mass. 440.

I am therefore of opinion that your question is to be answered
in the negative.

Taxation — Property omitted from Annual Assessment —
Removal of Taxpayer from the Commonwealth.

Under the provisions of St. 1909, c. 490, part I, § 85, an assessment of taxes upon
property omitted from the annual assessment may be made, although the
person assessed has removed from the Commonwealth prior to December 15.

commi^foner. You requcst HIV Opinion as to whether the assessment
Febma°ry7. of taxes authorized by St. 1909, c. 490, part I., § 85, upon
property omitted from the annual assessment, may be made
if the person assessed has removed from the Commonwealth
prior to December 15. I assume, of course, that such person
was a resident of the Commonwealth on the preceding 1st of
May.

The statute is as follows : —

If the real or personal estate of a person, to an amount not less than
one hundred dollars and liable to taxation, has been omitted from the
annual assessment of taxes in a city or town,, the assessors shall between
the fifteenth and twentieth days of December next ensuing assess such
person for such estate. The taxes so assessed shall be entered on the
tax list of the collector who shall collect and pay over the same. Such
additional assessments shall not render the tax of such city or tovm
invaUd although its amount, in consequence thereof, shall exceed the
amount authorized by law to be raised.

In my opinion, the assessment may be made. It is made as
of May 1, and "is not to be considered as a new and inde-
pendent assessment, but simply as the correction of a mistake
in the regular taxation; . . . the tax of a tax-payer for the
year is but a single tax, and a single assessment." Noyes v.
Hale, 137 Mass. 266, 271; Harwood v. North Brookfield, 130
Mass. 561. I find no jurisdictional objection to the correction
of a tax assessment in the fact of a change of residence by the
person assessed.

DANA M ALONE, ATTORNEY-GENERAL. 267

Constitutional Law — Constitution of the United
States — Amendment — Income Tax.

proposed amendment to the Constitution of the United States, vesting in Congress
the "power to lay and collect taxes on incomes, from whatever source derived,
■nathout apportionment among the several States, and without regard to any
census or enumeration," was intended to empower Congress to lay and collect
taxes on incomes without the restriction imposed by the Constitution of the
United States in article I., § 8, that "all duties, imposts and excises shall be
uniform throughout the United States," and § 9, that "no capitation, or
other direct tax, shall be laid, unless in proportion to the census or enumera-
tion hereinbefore directed to be taken."

I am in receipt of a communication from you, dated Feb- committee on
lary 7, in which, by direction of the committee on federal Refat^lns.
•lations, you submit certain questions with relation to a February 9.
lint resolution of the Congress of the United States proposing
1 amendment to the Constitution of the United States, which
nendment is now before that committee, and is as follows : —

Article XVI. The Congi'ess shall have power to lay and collect
ixes on incomes, from whatever source derived, without apportionment
nong the several States, and without regard to any census or enumera-
on.

I Your communication states that the committee on federal
'lations requires my opinion upon the "interpretation of the
hraseology of the proposed amendment," and also requests me
to furnish an outline of the probable effect and operation of
leh tax, if levied, especially with reference to the existing laws
I this Commonwealth on the subject." I am advised that the
recise point to which your inquiry is directed is to so much of
le proposed amendment as purports to authorize Congress to
Ly and collect taxes on incomes "without apportionment
mong the several States, and without regard to any census or
numeration."

The Constitution of the United States, in article I., section 8,
mong other provisions, empowers Congress "to lay and collect
ixes, duties, imposts and excises," but imposes a limitation
lat "all duties, imposts and excises shall be uniform through-
ut the United States." Bv section 9 of the same article it is

26S OPINIONS OF THE ATTORNEY-GENERAL.

provided that "No capitation, or other direct tax, shall be
laid, unless in proportion to the census or enumeration herein-
before directed to be taken." By section 2 of article I. it is
provided that : —

Representatives and direct taxes shall be apportioned among the
several states which may be included Tvnthin this Union, according to their
respective numbers, which shall be determined by adding to the whole
number of free persons, including those bound to service for a term of
years, and excluding Indians not taxed, three-fifths of all other persons.
The actual enumeration shall be made within three years after the first
meeting of the congress of the United States, and within every subsequent
term of ten years, in such manner as they shall by law direct.

Taxes levied by Congress, therefore, if direct taxes, must be
levied in proportion to the census or enumeration provided for
in section 2 of article I. of the Constitution of the United
States; and if indirect taxes, they must be subject to the quali-
fication imposed by section 8 of the same article, — that they
shall be uniform throughout the United States. The distinc-
tion between the two classes of taxes is well expressed in the
case of Pollock v. Farmers' Loan & Trust Co., 157 U. S. 429,
where, in an opinion by Chief Justice Fuller (page 557), it is
stated : —

Thus, in the matter of taxation, the Constitution recognizes the two
great classes of direct and indirect taxes, and lays down two rules by
which their imposition must be governed, namely : the rule of apportion-
ment as to direct taxes; and the rule of unifonnity as to duties, imposts
and excises.

The first question to be considered is whether a tax on the rents or
income of real estate is a direct tax witliin the meaning of the Constitution.
. . . but a tax upon property holders in respect of their estates, whether
real or personal, or of the income yielded by such estate, and the payment
of which cannot be avoided, are direct taxes.

The court, in this case, decided that a tax levied by Congress
upon the income from real estate, like a tax upon the realty
itself, was a direct tax, and that the statute under considera-

DANA MALONE, ATTORNEY-GENERAL. 209

ion (28 Stat. 509, c. 349), so far as it purported to levy a tax
ipon income so derived, was unconstitutional.

Upon a rehearing of the same case (158 U. S. 601), the court
leld that the tax laid by the statute above referred to, upon
ncome derived from real estate and from invested personal
)roperty, was invalid, for the reason that it constituted a direct
ax, which could not be levied without apportionment among
he several States, as provided in the Constitution.

The purpose of the proposed amendment to the Constitution
s, therefore, as it expressly states, to empower Congress to lay
md collect taxes on incomes, without the restriction imposed
Dy the constitutional provisions above stated, — that there
)hall be an apportionment among the several States, according
to their inhabitants, to be determined by an enumeration made
by the United States.

The effect and operation of an income tax laid by Congress
under authority of the proposed amendment, if adopted, must
be matter of pure conjecture, and must remain such until the
passage of an act upon which an opinion may be based. It
may be said, however, that the only effect which such an act
could have with reference to the existing laws of this Common-
wealth on the subject, would be the imposition of an added
burden of taxation upon those persons w^ho fell within its pro-
visions.

Hours of Labor — Mercantile Establishment — Employ-
ment OF Women — Manager of Department.

St. 1909, c. 514, § 47, which provides that " no child and no woman shall be employed
in laboring in a mercantile establishment more than fifty-eight hours in a
week," does not prohibit the employment in such establishment of a woman
as the manager of a large department, entrusted with the control and super-
vision of numerous persons employed therein, and whose duties require the
exercise of judgment and discretion, and do not necessarily involve either
manual labor or labor performed within fixed hours.

In your letter dated February 3 you request my opinion on To.t^he^^ ^^^
the question whether or not section 47 of chapter 514 of the ■^?^^','5^|"^„^,Vce.
Acts of 1909, which, so far as material, provides that "no child Febru^y h.
and no woman shall be employed in laboring in a mercantile

270 OPINIONS OF THE ATTORNEY-GENERAL.

establishment more than fifty-eight hours in a week," extends
to and includes "a woman employed by a mercantile establish-
ment as the manager and superintendent of a special depart-
ment in such establishment, said woman being the buyer for
such department, and having, at times, as many as four hun-
dred employees under her direction, consisting of men, women
and minors; she having no special hours for arriving at or leav-
ing such establishment, the times necessary for her to be present
being determined by herself."

I have no hesitation in advising you that the statute to which
you refer is not applicable to a woman w^ho is a manager and
superintendent of a large department, entrusted with the con-
trol and supervision of numerous persons employed therein, and
whose duties require the exercise of judgment and discretion,
and do not necessarily involve either manual labor or labor per-
formed within any fixed and definite hours.

Civil Service — State Boards, Departments or Commis-
sions — Authority to require Special Qualifications
IN Applicants for Appointment qr Employment.

No State board, department or commission is authorized to require of applicants
for appointment or employment qualifications other than those required by
the civil service law and rules, and the Civil Service Commission in its dis-
cretion may or may not accede to a requisition calling for special qualifications.

J°Repr"°"'^ I have the honor to acknowledge the receipt of an order
^"'f^Vo*"'" adopted by the House of Representatives, which reads as fol-

February21. l^^^^. _

Ordered, That the Attorney-General inform the House of Represen-
tatives what boards, departments and commissions, if any, of the Com-
monwealth can specially require of applicants for positions under them
qualifications other than required by the Civil Service Commission, and
to what extent they may go in those quaUfications; also, to what extent
the Civil Service Commission are bound to accede to requisitions made
for certain qualifications by boards, departments and commissions in
making up or advertising notices of examinations for applicants for
positions so qualified by departments, boards and commissions.

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

' 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

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(

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: —

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

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.

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.

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

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.

DANA MALONE, ATTORNEY-GENERAL. 321

The following year an act (St. 1883, c. 251) was passed "to
cure better provisions for escape from hotels and certain other
lildings, in case of fire." This provided, in part, in section 1,
at the keeper of a hotel, boarding or lodging house containing
le hundred or more rooms, "and being four or more stories
gh," should maintain at least two competent watchmen, prop-
ly assigned, and on duty between the hours of 9 o'clock at
gilt and 6 o'clock in the morning; and the keeper of a hotel,
)arding or lodging house containing more than fifty but less
an one hundred rooms, "and being three stories high," should
aintain at least one competent watchman on duty during the
me hours. Section 2 provided that: —

Hotels used and occupied as public houses, for the reception and en-
'tainment of guests, boarding or lodging houses and school buildings,
ing three or more stories high, and accommodating or ha\'ing the means

accommodating thirty or more persons, . . . shall be supplied inside
ereof with proper and sufficient means or appliances for escape, in case

fire, ...

In 1888 the law regulating ways of egress and means of escape
om fire was codified in St. 1888, c. 426, in which section 1 con-
ins the following provision: —

Every building now or hereafter used, in whole or in part, as a public
lilding, public or private institution, schoolhouse, church, theatre,
ibUc hall, place of assemblage or place of public resort, and evcrj' build-
g in which ten or more persons are employed above the second story in
factory, workshop or mercantile or other establishment, and every
)tel, family hotel, apartment house, boarding house, lodging house or
nement house in which ten or more persons lodge or reside above the
cond story, and every factory, workshop, mercantile or other estab-
hment the owner, lessee or occupant of which is notified in writing by
e inspector hereinafter mentioned that the provisions of this act are
■emed by him applicable thereto, shall be provided with proper ways
egress, or other means of escape from fire, sufficient for the use of all
■rsons accommodated, assembling, employed, lodging or residing in
ch building; . . .

And the same provision, that "every hotel, family hotel,
)artment house, boarding house, lodging house or tenement

322 OPINIONS OF THE ATTORNEY-GENERAL.

house in which ten or more persons lodge or reside above the
second story," is repeated in St. 1894, c. 481, § 24, and, with the
single change from "every hotel," etc., to " a hotel," etc., is
to be found in R. L., c. 104, § 25, as amended by St. 1907,
c. 503, § 1.

It appears, therefore, that the regulation of means of escape
in hotels and boarding or lodging houses originally applied only
to hotels and boarding or lodging houses which were three or
more stories in height (St. 1883, § 251), and that such regula-
tion so limited had been in force for five years when laws rela-
tive to the inspection of buildings were codified in St. 1888,
c. 426, where substantially the same language was employed in
section 1 with reference to hotels and boarding or lodging houses
that is to be found in existing provisions of law. I see no rea-
son to believe that by this codification the Legislature intended
to extend the application of the law to a class of buildings
w^hich up to that time had been excepted from its provisions,
or to limit the application of the qualifying words to tenement
houses, so as to create a distinction between a tenement house
and a hotel, family hotel, apartment house, boarding house and
lodging house. The conclusion which I have reached is sup-
ported by the language of the court which considered this sec-
tion (then St. 1888, c. 426, § 1), in Perry v. Bangs, 161 Mass.
35. 36, where the court said: —

Section 1 of St. 1888, c. 426, fii'st describes the buildings to be subject ■
to the provisions of the act, and this description includes "every hotel,
family hotel, apartment house, boarding house, lodging house, or tene-
ment house in which ten or more persons lodge or reside above the second
story." The description ends as follows: "and every factory, workshop,
mercantile or other establishment the owner, lessee, or occupant of which
is notified in writing by the inspector hereinafter mentioned that the
provisions of this act are deemed by him applicable thereto, shall be
provided with proper ways of egress or other means of escape from fire,
sufficient for the use of all persons accommodated, assembling, employed,
lodging, or residing in such building." We assume that the words re-
quiring a notice in writing from the inspector that he deems the provisions
of the act applicable to certain establishments apply only to the buildings
or establishments mentioned in the last clause of the description, and that

DANA MALONE, ATTORNEY-GENERAL. 323

hotel in which more than ten persons lodge or reside above the second
Dry is subject to the provisions of the act, even if no such notice has been
;^en by an inspector.

I am constrained to advise you, therefore, that a certificate of
I inspector of factories and public buildings is not required be-
re an innholder's license or a license to sell intoxicating liquors
ay be granted by the city or town authorities for a hotel in
hich not more than ten persons lodge or reside above the
cond story.

Your communication contains certain other inquiries, as fol-
ws: —

Does section 33, chapter 104, Revised Laws, apply to any hotel more

an one story in height outside of Boston?

Does section 34, chapter 104, Revised Laws, require an annual inspec-

m by the city or town (except Boston) inspector of buildings, or the

ief engineer of the fire department, in May, of every hotel of less than

a rooms above the second story?

Does section 34, chapter 104, Revised Laws, require knotted ropes or

tter appUances in every hotel which is not otherwise suitably provided

th fire escapes, and which is more than one story in height?

These inquiries relate to sections 33 and 34 of chapter 104 of
le Revised Laws, and in slightly different phrase present the same
|iestions. Section 33, so far as it is material, is as follows: —

The owner, lessee, proprietor or manager of a hotel, which is not othcr-
ise suitably provided with fire escapes, or of a lodging house which
■ntains ten or more rooms above the second story, shall place or cause
be placed a knotted rope or better appliance for use as a fire escape in
ery room of said hotel or lodging house used as a lodging room, except
cms on the ground floor.

Your inquiries, in substance, require my opinion upon the
uestion whether or not the words "Avhich contains ten or more
)oms above the second story" qualify the word "hotel," as
ell as the words "lodging house."

I am of opinion that a consideration of the history of this
articular provision makes it clear that the words "which con-
lins ten or more rooms above the second story" apply to and

524 OPINIONS OF THE ATTORNEY-GENERAL.

describe a lodging house, and have no reference to the word
"hotel" which precedes them. Thus, the provision with re-
spect to hotels was originally enacted in 1890, and is to be
found in chapter 307 of that year, and required that : —

Every owner, lessee, proprietor or manager of a hotel . . . shall . . .
place or cause to be placed a knotted rope or other better appliance for
use as a fire escape in every room of said hotel used as a lodging room,
except rooms on the ground floor.

The provision with respect to lodging houses containing ten
or more rooms above the second story was enacted in 1894 (St,
1894, c. 341); and in the same year the two provisions were
combined in St. 1894, c. 481, § 44, which is identical with sec-
tion 33 of chapter 104 of the Revised Laws, except that in the
latter section the w^ords "for the protection of human hfe ir
case of fire" are omitted after the words "fire escapes" in the
third line.

It follows, therefore, that the description with respect tc
rooms above the second story is applicable only to a lodging
house, and does not describe or limit the word "hotel."

Civil Service — Assistant Commissioner of the Penal
Institutions Department of the City of Boston.

The assistant commissioner of the penal institutions department of the city ol
Boston appointed by the penal institutions commissioner under the provision;
of St. 1897, c. 395, § 5, is within the classification of "superintendents, assist-
ant and deputy superintendents, deputies, executive officers and person;
other than the chief superintendent of departments ..." in civil service
rule 7, section 1, clause 1, and is subject to the provisions of the civil service
law and rules.

cfviflervice ^ ^'^ Fcquest my opinion as to wdiether the position of assist-

*^'i9io''^^*°°' ^^^* commissioner of the penal institutions department of Bos-
Juiyu. ^^j^ jg within the classified civil service.

The penal institutions department is a department of th(
city of Boston. See opinion of Feb. 16, 1910. The assistant
commissioner is within the classification of civil service rule 7
section 1, clause 1, of "superintendents, assistant and deput}

DANA MALONE, ATTORNEY-GENERAL. 325

uperintendents, deputies, executive officers and persons other
han the chief superintendent of departments performing any of
he duties of a superintendent in the service of any city." The
act that the position is described as that of "assistant commis-
ioner" instead of "assistant superintendent" is immaterial,
ince the duties must be analogous, and in my opinion such as-
istant commissioner is within the classified service of the city.
The only remaining question is, whether the position is by
tatute exempt from civil service rules. It is not so exempt by
L L., c. 19, § 9, which is the general provision for exemptions,
lor, in my opinion, is it exempt by any special statutory provi-
ion. St. 1895, c. 449, § 14, provides that "the institutions de-
)artment shall be under the charge of one institutions commis-
ioner." Section 20 provides that: —

The officer or board in charge of any department created by this act

. . may, with the approval of the mayor, appoint not exceeding three

issistants . . . ; and such appointment shall be exempt from the laws re-

ating to civil service in the commonwealth and the cities and towns thereof.

St. 1897, c. 395, § 5, after changing the name of the depart-
nent, provides that "the penal institutions commissioner may,
.vith the approval of said mayor, appoint one assistant." St.
1909, c. 486, § 15, repeals St. 1895, c. 449, § 20, except as to the
election department. The office of assistant commissioner is,
:herefore, created by St. 1897, c. 395, and as to it there is no
specific provision for exemption from the civil service.

Civil Service — Officers whose Appointment is subject to
Confirmation by City Council — Constables.

C"onstable3 whose appointments must be confirmed by the city council of the city
of Boston are "officers . . . whose appointment is subject to confirmation
by the . . . city council" within the meaning of R. L., c. 19, § 9, providing
that such officers, among others, shall not be affected as to their selection or
appointment by the civil service rules.

You have requested mv opinion as to whether constables To the

^ ' ^ •IP Civil Service

\vhose appointments must be confirmed by the city council ot Commission,
the city of Boston are officers within the provisions of R. L., J"'y 2i.

326 OPINIONS OF THE ATTORNEY-GENERAL.

c. 19, § 9, and therefore exempt from civil service classifica-
tion.

R. L., c. 19, §§ 6 to 8, inclusive, authorize the making of rules
regulating the selection of officers and employees in the service
of the cities of the Commonwealth. Under authority of these
sections certain rules have been made, one of which places
within the classified service ** constables in the service of any
city receiving pay other than the statutory fees." Civil service
rule 7, class 18. Constables in the service of the city of Boston
receiving pay other than the statutory fees, are, therefore,
within the civil service classification, unless expressly excepted
therefrom by statute.

R. L., c. 19, § 9, provides that: —

Judicial officers and officers elected by the people or by a city council,
or whose appointment is subject to confirmation by the executive council
or city council of any city, . . . police and fire commissioners and
chief marshals, or chiefs of police and fu-e departments, shall not be
affected as to their selection or appointment by any rides made as afore-
said; but, with the above exception, such rules shah apply to members
of police and fire departm.ents.

The constables in question are not expressly excepted from
the application of the rules unless they 'are "officers . . . whose
appointment is subject to confirmation by the . . . city
council."

In towns, "the selectmen may appoint as many constables
... as in their opinion may be necessary." R. L., c. 25, § 87.
In cities, the mayor and aldermen have the powers of select-
men. R. L., c. 26, § 2. When an appointment is to be made
by the mayor and aldermen, the mayor has "the exclusive
power of nomination, subject to confirmation or rejection by
the aldermen." R. L., c. 26, § 8. In the city of Boston, the
mayor and city council have the powers of a board of alder-
men. St. 1909, c. 486, § 1.

The principal duty of a constable is the service of process,
both criminal and civil. A constable may, however, serve civil
process only if he has given the statutory bond. R. L., c. 25,
§§ 88 to 93, inclusive.

DANA MALONE, ATTORNEY-GENERAL. 327

In view of the statutory provisions referred to, I am of opin-
m that a constable is an officer within the meaning of the
,ord as used in R. L., c. 19, § 9. See Leavitt v. Leavitt, 135
lass. 191, 193; Brown v. Russell, 166 Mass. 14, 26; Attorney-
ieneral v. TiUinghast, 203 INIass. 539. "His appointment is
ubject to confirmation by the . . . city council" of Boston.
[itorney-General v. Douglass, 195 Mass. 35, 38. The constables
Q question are, therefore, in my judgment, exempt from civil
ervice classification.

The opinion which I have expressed applies to constables, but

, lot to members of the pdlice department. Police officers are, in

j ;eneral, classified within civil service rules. See rule 7, classes

' A to 17, inclusive. The statute which provides for exemptions

rem the application of the civil service rules further provides

hat "such rules shall apply to members of police . . . depart-

nents." R. L., c. 19, § 9. Moreover, in the city of Boston not

)nly regular and reserve police, but also special police, are ap-

Dointed by the police commissioner and not by the mayor and

:ity council. St. 1887, c. 177; St. 1898, c. 282; St. 1906, c. 291,

MO.

City or Town — Money borrowed in Anticipation of
Taxes — Limit of Authority to issue Notes in Payment.

I Under the provisions of R. L., c. 27, § 6, authorizing a city or town, by a majority
vote, to "incur debts for temporary loans in anticipation of the taxes of the
municipal year in which such debts are incurred and expressly made payable
therefrom by such vote," a town may not legally issue notes for debts incurred
in anticipation of taxes in any one year when such debts exceed in the aggregate
the total amount which the town has by vote authorized to be so borrowed.

A town may not, under the provisions of R. L., c. 27, § 6, authorize an amount to
be borrowed in anticipation of taxes which exceeds the amount of the tax
assessed or to be assessed for the year within which the debt is contracted.

By your letter of July 29 you desire to be advised as to xotho
whether or not a town has authoritv "to legally issue notes the Bureau

.of Statistics.

m anticipation of taxes for any one year to an amount m the ^^'^J^^^g
aggregate in excess of the total amount which the town b\- vote
has authorized may be borrowed. For example: if a town is
authorized to borrow S50,000 in anticipation of taxes, may it

328 OPINIONS OF THE ATTORNEY-GENERAL.

borrow in excess of that sum, provided at any one time it has
not more than S50,000 outstanding?"

I assume that you refer to money borrowed in anticipation of
taxes under the provisions of R. L., c. 27, § 6, which is as fol-
lows : —

Cities and towns may by a majority vote incur debts for temporary
loans in anticipation of the taxes of the municipal year in which such
debts are incurred and expressly made payable therefrom by such vote.
Such loans shall be payable within one year after the date of their incur-
rence, and shall not be reckoned in determining the authorized Umit of
indebtedness.

Under this provision of law I am of opinion that the amount
of the debt which the town has by vote duly authorized to be
incurred may not in any case be exceeded, and that the au-
thority of the town officers in the premises is exhausted when
they have once contracted a debt to the extent of the sum set
forth in such vote. It follows, therefore, that notes may not be
legally issued for debts incurred in anticipation of taxes in any
one year when such debts in the aggregate exceed the total
amount w^hich the town has by vote authorized to be so bor-
row'ed. See 1 Op. Atty.-Gen. 24, 65, 418; Agaivam National
Bank V. Inhabitants of South Hadley, 128 Mass. 503; Smith v.
Dedham, 144 Mass. 177.

You also desire to be advised "as to what is the limit, if any,
upon the amount which can be borrowed by a municipality in
anticipation of taxes."

Section 6, above quoted, imposes no express limitation upon
the authority of a town to incur debts for temporary loans, but,
by its implication, such authority must be limited to the
amount of the tax assessed or to be assessed in the year during
which such debt is incurred. Thus, if the debt is incurred be-
fore the tax has been actually assessed, its amount must not
exceed the amount of taxes to be levied for the year within
which such debt is contracted. If the debt is incurred after the
taxes have been assessed and before they are collected, it must
not in any event exceed the amount of tax money assessed for
that year remaining uncollected.

DANA MALONE, ATTORNEY-GENERAL. 329

STREET Railway Company — Issue of Bonds — Board of
Railroad Commissioners — Approval — Sale at Less
THAN Par Value.

The pro%'ision of St. 1906, c. 463, part III., § 103, that for the purposes therein
specified a street railway company "may . . . increase its capital stock or
issue bonds, ... to such an amount, ... as the board of railroad com-
missioners shall determine will realize the amount which has been properly
expended or will be properly required ... for such of the purposes aforesaid
as are set out in its petition to said board," authorizes the Board of Railroad
Commissioners to approve an issue of bonds and the sale thereof by a street
railway company at less than par value, provided that the price realized by
such sale furnishes a fair and reasonable equivalent for the securities so
disposed of.

The Board of Railroad Commissioners, having acted upon the petition of a street
railway company and determined the amount of bonds which, if sold at par,
would realize the amount properly expended or properly required, as set
forth in the petition, upon a subsequent petition may take into consideration
the fact that the petitioner has been unable to dispose of the bonds so
authorized at par, and may approve a further issue of bonds for the same
purpose in order to meet the deficit so created.

5t. 1910, c. 536, amending St. 1906, c. 463, part III., § 103, and providing that
the Board of Railroad Commissioners, in authorizing an issue of bonds under
section 103, "may prescribe the minimum price at which such bonds shall
be sold, and may modify such price from time to time," and where the mini-
mum price so established is less than par, may provide for the establishment
of a sinking fund which at the maturity of the bonds will amount to the
difference between the selling price and the par value thereof, is applicable
to a petition pending at the time of its passage.

By a communication dated September 23 you have requested J°Rafiroad'^'^
ny opinion upon certain questions arising under the provisions Comnwsioners.
|)f St. 1906, c. 463, part III., § 103, as amended by St. 1910, o<=!f^2i.
p. 536. Your communication states that under the statute first
nentioned, and prior to the enactment of the amendment, the
Board approved : —

m issue by a street railway companj- of bonds of a par or face value
, 'qual to the amount of certain floating indebtedness properly incurred
jy the company in the construction and equipment of its railway and in
he purchase of property necessary for its operation. The company
?old the bonds, and realized therefrom an amount less than their par
>'alue and less than the amount of floating indebtedness which it was
:>roposed to pay. After applj'ing the proceeds of the sale of said bonds
0 said floating indebtedness, the company filed its petition with the
Board for approval of the issue of additional bonds to an amount sufficient

530 OPINIONS OF THE ATTORNEY-GENERAL.

to pay the balance of tlie floating indebtedness not paid with the proceeds
of the bonds previously approved by the Board and issued and sold by
the company. During the pendency of this petition, the General Court
enacted chapter 536 of the Acts of 1910.

Upon these facts, and upon the assumption that the Board is
satisfied that the petitioning street railway company acted in
good faith in the sale of the bonds first approved and obtained
a fair market value therefor, the following specific questions are
asked: —

1. Can the Board now, under the authority conferred upon it by said
section 103 of Part III. of chapter 463 of the Acts of 1906, as amended
by chapter 536 of the Acts of 1910, approve, upon the company's pending
petition, the issue of such additional bonds as this Board may deem to be
reasonably necessary to realize the balance of the amount of floating
indebtedness, previously found by the Board to have been properly
incurred, and which the bonds previously approved by it had not been
sufficient entirely to pay?

2. Can the Board now, under said statutes, and on the company's
pending petition, if the Board approves the issue of any additional bonds
as prayed for in said petition, require the company to establish a sinking
fund, as provided in said chapter 536 of the Acts of 1910?

3. Is it necessary for said company to authorize and file a new petition
subsequent to the enactment of chapter 536 of the Acts of 1910, in order
to give this Board jurisdiction under said act to require the company to
establish a sinking fund under the provisions thereof?

Section 103 of part III. of chapter 463 of the Acts of 1906
provides as follows : —

A street railway company, for the purpose of building an extension,
or of acquiring land for pleasure resorts, or of acquiring or building power
houses or car houses or park buildings, or of acquiring or equipping addi-
tional rolling stock, or of changing its motive power, or of furnishing
electricity to a town for light, or of abolishing grade crossings, or of paying
betterment assessments for widening or otherwise altering streets, or of
complying with any requirements lawfully imposed, or of making perma-
nent investments or improvements, or of acquiring any additional real
or personal property necessary or convenient for its corporate objects, or
of refunding its funded debt, or for the payment of money borrowed or
indebtedness incurred for any of the foregoing purposes, or for other

DANA MALONE, ATTORNEY-GENERAL. 331

imilarlj'- necessary and lawful purposes, may, in accordance with the
)rovisions of sections one hundred and seven, one hundred and eight, one
lundred and eleven and one hundred and twelve of Part III, and of
ections forty-eight to fifty-six, inclusive, of Part II, increase its capital
tock or issue bonds, secured by mortgage or otherwise, to such an amount,
)eyond the amounts fixed and limited by its agreement of association
ir its charter, or bj' any special law, as the board of railroad commissioners
hall determine will realize the amount which has been properly expended
ir will be properly required, and as said board shall approve for such of
he purposes aforesaid as are set out in its petition to said board.

To the purposes for which a street railway company might in-
•rease its capital stock, as thus set forth, St. 1909, c. 485, added
he further purpose of supplying itself with w^orking capital.

Sections 107 to 112 of part III. of the chapter last quoted
'ontain certain directions and restrictions upon the issuance of
-tocks, bonds, coupon notes and other evidences of indebtedness
)y street railway companies, which are not pertinent to the
present inquiry.

Sections 48 to 56 of part II. regulate the issuance by a rail-
•oad corporation of coupon or registered bonds, coupon notes or
)ther evidences of indebtedness payable at periods of more than
:welve months from the date thereof to provide means for fund-
ing its floating debt, or for the payment of money borrowed for
my lawful purpose, or authorize the mortgage of a part or all of
its railroad, equipment or franchise, or a part or all of its real
)r personal property, together with provisions for the operation
md management of the railroad in case there is a default in the
performance of the conditions of the mortgage.

St. 1910, c. 536, is as follows: —

Section one hundred and three of Part III of chapter four hundred
md sixty-tln-ee of the acts of the year nineteen hundred and six is hereby
imended by adding at the end thereof the following: — Said board, in
luthorizing the issue of any bonds under this section may prescribe the
ninimum price at which such bonds shall be sold, and may modify such
price from time to time, as the board may deem proper. Whenever said
Joard authorizes or has approved the issue or sale of bonds of a face
\-alue in excess of the amount determined by it to have been properly
expended or to be properly required, it may, in its order of approval, or

332 OPINIONS OF THE ATTORNEY-GENERAL.

at any time thereafter, require the company issuing such bonds to estab-
lish a sinking fund, estimated to realize at the maturity of said bonds a
sum equal to the difference between the amount or amounts for which
such bonds were authorized or approved, and the face value of the bonds
so authorized or approved therefor, and may designate some Massachu-
setts trust company as trustee and custodian of such fund, and may from
time to time change such trustee. The provisions of any agreement
relative to said sinking fund, made between the street railway company
and the trust company selected as such trustee, shall be submitted to said
board and shall not be valid until approved by it.

This statute created no new purpose for which, subject to the
approval of the Board of Railroad Commissioners, bonds may
be issued. Its only effect is to confer upon the Board authority
to prescribe a minimum price at which bonds may be sold, and,
where such minimum price is less than par, to provide for the
establishment of a sinking fund which will at maturity amount
to the difference between the selling price and the par value of
the bonds. It follows, therefore, that the first question to be
decided is, whether or not section 103, without reference to the
amendment passed in 1910, either expressly or by implication,
places a limitation upon the sale of bonds issued under its pro-
visions for the purpose of raising money to pay for work of con-
struction or to fund floating indebtedness or for any other law-
ful purpose.

I am of opinion that there is nothing in section 103, or in
the other sections therein referred to, which limits the power of
a street railway company to dispose of bonds, lawfully issued,
at less than par if the price obtained is the fair market value of
the securities sold. Generally speaking, a corporation, in the
absence of statutory prohibition or restriction, may issue its
bonds or other evidences of indebtedness at a discount, or may
dispose of them at less than par, provided that the price realized
or the work or materials furnished give a reasonable equivalent
for the securities disposed of. Gamble v. Queens County Water
Co., 123 N. Y. 91; Coe v. Columbus, etc., Railroad Co., 10 Ohio,
372; Northside Railway Co. v. Wonhington, 88 Tex. 562. And
this power in railroad or street railway corporations has been
uniformly recognized by the Legislature of this Commonwealth.

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

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

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

JAMES M. SWIFT, ATTORNEY-GENERAL. 347

i iepartment, institution or undertaking which receives an
innual appropriation of money from the treasury of the Com-
nonwealth in accordance with such provisions, by examining
md auditing the books and accounts or prescribing the methods
)f accounting of such officers or boards.
The statute to which you refer is as follows: —

Section 1. Every officer or board having charge of any department,
nstitution or undertaking which receives an annual appropriation of
ixoney from the treasury of the commonwealth, including annual appro-
priations to be met by assessments, shall, annually, on or before the
ifteenth day of November, submit to the auditor of the commonwealth
statements in detail showing the amount appropriated for the current
iscal year and the amounts required for the ensuing fiscal year, with an
explanation of the reason for any increased appropriation, and with cita-
tions of the statutes relating thereto, and with a statement of the expendi-
tures for the current year and for each of the next preceding two years.
The said estimates shall not include any estimates for special purposes
or objects. The auditor of the commonwealth shall embody the said
statements, with a like statement relating to his own department, in one
document, which shall be printed, and shall be submitted on or before
the first Thursday in January of each year to the governor and council
for examination, and the governor shall transmit the same to the general
court with such recommendations, if any, as he may deem proper. The
auditor shall also submit his estimates for the ensuing fiscal year for the
ordinary and other revenue of the commonwealth which shall be made
a part of the document herein provided for. Copies of the document
shall be distributed to the members of the general court.

Section 2. Officers, heads of departments, boards, commissions and
trustees of institutions, who, in their annual reports, or otherwise, recom-
mend appropriations from the state treasury for special purposes or objects,
including appropriations to be met by assessments in addition to the
ordinary running expenses, shrll submit estimates thereof in detail to the
auditor of the commonwealth on or before the fifteenth dpy of November
in each year, and he shall classify them and embody them in one docu-
ment which shall be printed, and shall be submitted on or before the fu-st
Thursday in January of each year to the governor and coimcil for exam-
ination, and the governor shall transmit the same to the general court
with such recommendations, if any, as he may deem proper. He shall
make recommendation as to "how much should be raised by the issue of
bonds and how much should be paid out of cm-rent revenue. Copies
of the document shall be distributed to the members of the gcnerid
court.

348 OPINIONS OF THE ATTORNEY-GENERAL.

Section 3. The plans, estimates and specifications made in ?ccord-
ance with the provisions of chapter five hundred and twenty of the acts
of the year nineteen hundred and seven, or of amendments thereof, relat-
ing to any improvement described in either of the documents aforesaid,
shall at the same time be submitted to the governor and council.

Section 4. The auditor shall furnish to the governor and council
such further information in regard to the revenue, expenditures and other
financial operations of the commonwealth, and in such form as the gov-
ernor may require.

Section 5. The governor may, in his discretion, transmit to the
general court from time to time, with his recommendations, if any, thereon,
■ particular items in either of the said documents, and may withhold other
items for further investigation.

Section 6. Section twenty-six of chapter six of the Revised Laws,
as amended by section six of chapter two hundred and eleven of the acts
of the year nineteen hundred and five and section five of chapter five
hundred and ninety-seven of the acts of the year nineteen hundred and
eight, and all acts and parts of acts inconsistent herewith, are hereby
repealed.

Section 7. This act shall take effect upon its passage.

It is to be observed that this statute provides that the
Auditor shall in the first instance receive the estimates of State
officers and boards and transmit them to the Governor and
Council for examination, together with estimates for ordinary
and other revenue of the Commonwealth made by him, and
that the only power vested in the Governor with respect to
such estimates is that of making such recommendations as he
may deem proper. It is also made the duty of the Auditor to
furnish to the Governor and Council further information in
connection with such estimates regarding the revenue, expendi-
tures and other financial operations of the Commonwealth in
such form as the Governor may require.

I am of opinion that this statute does not confer upon the
Governor and Council, or upon the Governor alone, any new
or additional right to examine the expenditures or books of
account of, or to prescribe the method of accounting which
shall be used by, any State officer or board for the purpose of
verifying or otherwise investigating the estimates so required.
It is already provided by St. 1908, c. 597, § 4, that —

JAMES M. SWIFT, ATTORNEY-GENERAL. 349

I Under the direction of the auditor, the supervisor of accounts shall
j iirect and control all the accounts in all departments, and shall have full
liuthority to prescribe, regulate and make changes in the methods of
} ceeping and rendering accounts, and shall see that they are properly
naintained, and that all items are correctly allocated between capital
•eceipts and disbursements and operating revenue and expense. He
ihall establish in each department a proper system of accounts, which
ihall be uniform so far as is practicable. He shall estabhsh a proper
iystem of accounting for stores, supplies and materials, and maj^ provide,
vhere he deems it necessary, for a continuing inventory thereof. He
nay inquire into the methods of purchasing and handling such stores,
lupplies and materials by the departments, reporting to the auditor such
ihanges as may in his judgment be deeme^ wise. He shall provide such
lafeguards and systems of checking as will insure, so far as is possible, the
)roper collection of all revenue due the commonwealth; and, where he
ieems it necessary, shall provide that forms and receipts shall be num-
bered consecutively, making the departments responsible for their use
)r cancellation;

md by section 6 that —

"UTienever the word "departments" occurs in this act it sh.dl be under-
stood to include all departments, boards, commissions, institutions and
Dfl&ces of the commonwealth which incur expense or to which income
iccrues, unless the context requires a different interpretation.

Under these provisions of law the Auditor is given full au-
thority to prescribe, regulate and make changes in the methods
of keeping or rendering accounts in all State departments,
boards, commissions and offices, and to see, by audit or other-
wise, that they are properly maintained; and there is nothing
in the language of St. 1910, c. 220, to warrant a conclusion that
by its enactment the Legislature intended to supersede or
modify the authority of the Auditor under the statutes above
cited by conferring upon the Governor and Council any super-
vision or control of public expenses or the methods of account-
ing therefor. Upon the contrary, it is the obvious intention of
the latter statute that the estimates furnished to the Governor
and Council in accordance with its requirements should be fur-
nished through the Auditor, and that any additional informa-

350 OPINIONS OF THE ATTORNEY-GENERAL.

tion which may be required in the premises should be supplied
by him (§4).

The general power of the Governor and Council to investi-
gate the expenditures of State officers, boards or commissions
was made the subject of an opinion by my predecessor to His
Excellency the Governor, dated April 26, 1909 {ante, p. 226),
in which it was stated that —

The Governor and Council may at any time examine such bills and
vouchers in the Auditor's department, and thus familiarize themselves
with the expenditures of the Commonwealth as much as they wish. They
may take such measures as they see fit to ascertain that the money ap-
propriated for the various institutions in the Commonwealth is being ex-
pended in the manner intended by the Legislature, and may make such
personal investigation at the institutions themselves as may be necessary
to make sure that this is being done; but they have no right to say that the
money appropriated by the Legislature shall not be expended in the way
authorized by it. There are various departments under the immediate
supervision of the Governor, and in such departments it is his duty to see
that the money appropriated is properly expended therein. There are
other departments in which it is the duty of the head of such departments
to see that the money appropriated is properly expended, and for which
the Governor is not responsible, and in which he has no authority except
so far as may be necessary to see that the warrants are drawn in accord-
ance with the appropriations authorized by the Legislature. Should the
Governor and Council be of opinion that the finances of any institution
are not being properly and economically expended, the remedy would be by
removal of the trustees or other officers over whom they have authority,
in accordance with the statutes in such case made and provided. To
this extent, under the Constitution and law of the Commonwealth the
Governor and Council have authority to investigate the expenditures of
any department, and to familiarize themselves as much as they see fit
with any of the expenditures of the Commonwealth.

I am, therefore, forced to the conclusion that, in the investi-
gation of the estimates submitted to the Governor and Council,
under the provisions of St. 1910, c. 220, the Governor and
Council are not authorized to audit the books or accounts of any
officer or board whose estimates are before them for considera-
tion, or to prescribe any method of accounting to be followed
by such officer or board, and that such information as may be

JAMES M. SAVIFT, ATTORNEY-GENERAL. 351

equired with respect to matters of finance, in addition to that
uppHed by the estimates themselves, is to be furnished by the
luditor in such form as the Governor may require.

'iviL Service Commission — City of Boston — Appoint-
ment TO Office — Investigation — Public Records.

a the performance of the duties required by St. 1909, c. 486, § 10, that the Civil
Service Commission shall make a careful inquiry into the qualifications of
a nominee for ofnce in the city of Boston, under such rules as they may, with
the consent of the Governor and Council, establish, such commission act
in a special and limited capacity under the authority of that section alone,
i and they are not controlled by the general pro-\dsions relating to civil service,

in R. L., c. 19, and in the rules formulated thereunder.

setters and other memoranda received by the Civil Ser^^ce Commission in the
course of the investigation provided for in St. 1909, c. 486, § 10, are not
received, and are not required to be received, for filing within the meaning
of R. L., c. 35, § 5, providing that the words "public records" shall mean
"any written or printed book or paper, any map or plan of the commonwealth
or of any county, city or town which is the property thereof and in or on
which any entry has been made or is required to be made by law, or which
any officer or employee of the commonwealth or of a county, city or town
has received or is required to receive for filing;" and they are not, therefore,
pubUc records as therein defined.

i member of the Legislature has no greater right to inspect letters or papers which
are in the possession of the commission but are not public records, than has
any other member of the pubUc.

, By the provisions of section 10 of chapter 486 of the Statutes To the

\ e tt A - ' • • p 1 • e Civil Service

)f 1909, An act relating to the administration of the city of Commission.
Boston and to amend the charter of the said city," certain January 28.
Iluties with respect to the appointment of heads of depart-
nents and members of municipal boards in the city of Boston
.vere vested in the Civil Service Commission upon the receipt of
I certified copy of a certificate of appointment from the mayor
n the form provided in such section : —

The commission shall immediately make a careful inquiry into the
lualifications of the nominee under such rules as they may, with the
ionsent of the governor and council, establish, and, if they conclude
:hat he is a competent person with the requisite qualifications, they shall
lie with the city clerk a certificate signed by at least a majority of the
iommission that they have made a careful inquiry into the qualifications
3f the appointee, and that in their opinion he is a recognized expert, or

352 OPINIONS OF THE ATTOKNEY-GENERAL.

that he is quahfied by education, training or experience for said office, as
the case may be, and that they approve the appointment. ... If the
commission does not within thirty days after the receipt of such notice
file said certificate with the city clerk the appointment shall be void.

In the performance of these duties the Civil Service Commis-
sion have formulated certain regulations which, so far as mate-
rial, are : —

2. Upon receipt of the said copy of certificate of appointment the
Civil Service Commission shall make such inquiry concerning the train-
ing, experience, character and qualifications of the appointee as it judges
necessary.

3. Upon request from the Civil Service Commission, the mayor shall
furnish to it such information as it may call for relating to the age, resi-
dence, experience, training, character and qualifications of the appointee;
and he shall forward to it any and all correspondence, papers, petitions,
recommendations and protests in his possession relating to the appointee,
all of which shall be returned to the mayor within thirty days after re-
ceipt from the city clerk of said copy of certificate of appointment.

The city council and city clerk of Boston, and all commissioners and
commissions appointed by the Governor, shall, upon request from the
Civil Service Commission, furnish to it such information as it may call for
relating to the age, residence, experience, training, character and qualifi-
cations of the appointee.

In connection with the careful inquiry which is required by
the statute the commission have invited communications, both
oral and in writing, with reference to persons appointed under
the provisions of St. 1909, c. 486, § 9, and, as you state in your
letter, " have, in fact, used many sources of information — data
furnished in writing by the mayor or by the appointee; personal
conferences at the State House by the commission with the ap-
pointee and with other citizens; personal investigation by the
individual commissioners; testimony of sworn witnesses taken
at the State House by the commission; official city and State
reports and other documents; reports and notes made by
agents and inspectors employed by the commission; letters writ-
ten to the commission voluntarily by various citizens; letters
written by citizens in response to letters of inquiry sent out by

JAMES M. SWIFT, ATTORNEY-GENERAL. 353

lie commission; letters written by citizens presumably in re-
Donse to a general invitation to the public made by the com-
lission in a notice issued to the press April 6, 1910." The
Dtice to which you refer was as follows: —

April 6, 1910.

In order that the Civil Ser^^ce Commission may fulfill in tlic most

I )mplete manner possible the duty imposed upon it by chapter 486 of

le acts of 1909 in making "the careful inquiry" therein required into

le qualifications of nominees for the positions of heads of departments,

id in order that no injustice may be done to any nominee, or to the

ayor of the city of Boston, or to the public, by reason of the failure on

1 18 part of the commission to receive the fullest information, the com-

I ission hereby issues this formal notice that information as to the qualifi-

1 itions of a nominee presented to the commission at its office in the

;ate House by any one, in person, or in writing over his signature, will

; considered in the investigation which the commission will undertake

ider the rules framed by it and approved by the Governor and Council.

You further advise me that a request in writing has been
lade by a member of the present Legislature, in the form fol-
'wing: —

So that your Board may have a definite request before you in writing,
respectf uUy submit the f ollowmg : — •

As a member of the Legislature of 1911, and for the pm-pose of obtain-
g accurate information relating to a matter of legislation before said
)dy, I desire to examine at your office at the State House, in the presence
■ the secretary of the Board, aU the letters, petitions, communications,
^commendations for and against the certification of Morris L. Morrison
•• a member of the board of assessors, and Joseph P. Lomasney as a
ember of the board of health of the city of Boston.

A further request was thereafter made by the said member
lat the matter be referred ■ to the Attorney-General, and in
?cordance therewith the Civil Service Commission submitted
•r the decision of the Attorney-General the following specific
uestions : —

(1) Are such letters and papers, described as above, "records of their
oceedings" or "recommendations of apphcants received by them or

354 OPINIONS OF THE ATTORNEY-GENERAL.

by any officer authoi-ized to make appointments, or to employ laborers
or others within the scope of such rules," within the meaning of R. L.,
c. 19, § 5, and such as are under that statute requh-ed "to be preserved"
and "to be open to public inspection?"

(2) Are such letters and papers "public records," within the definition
prescribed in R. L., c. 35?

(3) Are the commissioners under obligation by law to allow an
individual member of the Legislature to inspect such letters and
papers?"

On January 20, in accordance with a request of the said
member, a hearing was given by me, at which the Civil Service
Commission was represented by its secretary, and the said
member was fully heard upon all the questions raised by his
original communication to the Civil Service Commission and by
the inquiries of the commission as above quoted. To his state-
ments and arguments I have given most careful consideration.
Upon so much thereof as was addressed to the propriety of per-
mitting an examination of letters or documents in the nature of
evidence for or against persons appointed to office under the
provisions of St. 1909, c. 486, § 9, which may be in the posses-
sion of the Civil Service Commission, as a matter of policy or
fairness I cannot assume to pass except in so far as such con-
siderations are involved in the construction of the statutesi
which are applicable in the premises.

Replying specifically to the questions of the Civil Service
Commission, therefore, my opinion is as follows : —

(1) R. L., c. 19, § 5, provides that the commission —

shall keep records of their proceedings and of examinations made by
them or under their authority. Recommendations of applicants received
by them or by any officer authorized to make appointments or to employ
laborers or others, within the scope of such rules, shall be preserved.
Such records and recommendations shall, under regulations approved by
the governor and council, be open to pubhc inspection.

This provision of law is found in the general statute whicl"
provides for the "selection of persons to fill appointive positions
in the government of the commonwealth and of the severa

JAMES M. SWIFT, ATTORNEY-GENERAL. 355

nties thereof and the selection of persons to be employed as
aborers or otherwise in the service of the commonwealth and
,aid several cities" (section 6), under rules prepared by the
commission and approved by the Governor and Council, which
nclude —

The classification of the positions and employments to be filled.

Open competitive and other examinations to test the practical fitness
if applicants.

The filling of vacancies in and the selection of persons for public posi-
ions and emplojanents in accordance with the results of such examinations,
ir in the order of application, or otherwise.

Promotions, if practicable, on the basis of ascertained merit in the
xamination and seniority of service.

A period of probation before an appointment or employment is made
)ennanent.

Preference to veterans in appointment and promotion.

It is clear that in the performance of the duties required by
he provisions of St. 1909, c. 486, § 10, hereinbefore quoted,
he commission act in a special and limited capacity, under the
luthority of that section alone. They are not to be controlled
)y the general provisions relating to civil service, which are to
)e found in R. L., c. 19, and in the rules formulated there-
mder, (See section 9.) The provisions of R. L., c. 19, § 5,
herefore, have no application to the proceedings of the com-
nission under St. 1909, c. 486, § 10.

(2) R. L., c. 35, § 5, defined the words "public records" as
oUows : —

In construing the provisions of this chapter ?nd other statutes, the
vords "pubhc records" shall, unless a contrary intention clearly appears,
nean any \\Titten or printed book or paper, any map or plan of the com-
nonwealth or of any county, city or town which is the property thereof
i.nd in or on which any entry has been made or is required to be made
)y law, or which any oflacer or employee of the commonwealth or of a
•ounty, city or town has received or is required to receive for filing, and
tny book, paper, record or copy mentioned in the six following sections,
fhe word "record" shall, in this chapter, mean any Amtten or printed
)ook, paper, map or plan.

356 OPINIONS OF THE ATTORNEY-GENERAL.

Speaking of this section, in an opinion dated Sept. 22, 1902
(2 Op. Atty.-Gen. 381), the Attorney-General stated that —

This legislative definition cannot be held to include within its intention
every paper which an officer of the Commonwealth receives and files.
It must be Umited to such as he is required by law to so receive for filing.
Any other construction must be prejudicial to the rights and interests of
the Commonwealth or its officers, and, indeed, of parties or persons making
communications with such officers.

And see ante, p. 136. This section has been construed and
this view has been confirmed in the case of Round v. Police
Commissioner, 197 Mass. 218, where, at page 220, the court
say: —

The petitioner contends that such a paper, returned to the Licensing
Board, is a public record under the R. L., c. 35, § 5, because it is a paper
which an officer of the city has received or is required to receive for filing.
An examination of this section shows that it relates to books, papers and
maps which are intended for the use of the public. We are of opinion
that the returns by pawnbrokers are not papers received for filing. There
are statutes which require that certain papers be filed in the office of the
city or town clerk, or in some registry, for inspection by all persons
interested. Such papers are "received for filing" within the meaning of
the statute; but the statute as to returns, by pawnbrokers makes no
provision for filing. The licensing boards may preserve them in such a
way as they choose.

While the facts in the two cases are not identical, I am
bound to follow the construction therein declared. To make
any letter, paper or document in the possession of the Civil
Service Commission a "public document" within the meaning
of R. L., c. 35, § 5, therefore, the commission must have re-
ceived or must be required to receive such letter, paper or docu-
ment for filing under the terms of some particular statute. Xo
such requirement is to be found in St. 1909, c. 486, § 10. The
commission are broadly authorized to "make a careful inquiry
into the qualifications of the nominee under such rules as they
may, with the consent of the governor and council, establish,
and, if their conclusion is favorable to such nominee, they are

JAMES M. SWIFT, ATTORNEY-GENERAL. 357

equired to file with the city clerk a certificate to that effect.
?his inquiry is to be governed only by their discretion and by
uch rules as, with the consent of the Governor and Council,
hey may adopt for their own guidance.

The rules so far adopted, which I have already quoted, do
ot in my opinion require the filing of any letter, paper or docu-
Qcnt by the commission. They do, in rule 3, require the
aayor to forward to the commission "any and all correspon-
ience, papers, petitions, recommendations and protests in his
lossession relating to the appointee," and they provide for the
eturn of the same, after the commission have reached a de-
ision, but this provision has no bearing upon like documents
ddressed to and received by the commission in the course of
heir inquiry, and, so far as it is material at all, suggests an
ntent that such matters should not be retained and filed by
he commission.

I am therefore constrained to conclude that the letters and
>ther memoranda to which your inquiry is directed are not re-
vived for filing, and are not required to be filed, by any law
vhich has been called to my attention. They are received by
he commission in connection w^ith the specific duties required
)y the provisions of St. 1909, c. 486, § 10, for the purpose of
tiding the commission in the performance of those duties. The
;ommission are not required to receive or to retain and pre-
serve them; and they are retained and preserved, if at all, only
or the information or convenience of the commission. Since
hey are not received and are not required to be received for
iling, within the meaning of R. L., c. 35, § 5, they are not
)ubhc records as defined in that section.

(3) A member of the Legislature, as such, has no greater
'ight to inspect letters or papers which are in the custody of
he commission, but are not public records, than has any other
nember of the public, and his individual rights are to be meas-
ired by those of the public generally.

358

OPINIONS OF THE ATTORNEY-GENERAL.

To the

Adjutant

General.

1911
February 3.

Volunteer Militia — Aemory Commission

OF Armories.

Construction

The duty of the armory commission, under the provision of St. 1908, c. 604, § 133,
as amended by St. 1909, c. 323, § 1, that "if in their judgment the needs
of the service demand it, subject to the approval of the commander-in-chief,
. . . shall construct armories, not exceeding three yearly, until the volunteer
militia shall be provided with adequate quarters," is to construct armories
until the volunteer militia are provided with adequate quarters, subject to
the limitation that there shall not be under construction in any one year
more than three such armories.

Relative to the construction of St. 1908, c. 604, § 133, as
amended by St. 1909, c. 323, § 1, which, so far as material, is
as follows : —

The armory commissioners shall rebuild, remodel or repair armories of
the first class which have been injured or destroyed by fire, and may
reconstruct, remodel, enlarge or otherwise improve existing state armories,
if in their judgment the needs of the service demand it, subject to the
approval of the commander-in-chief, and, in addition, shall construct
armories, not exceeding three yearly, until the volunteer militia shall be
provided with adequate quarters.

you submit the following questions for my opinion: —

1. Must the armory commission build any armories?

2. Must they build from one to tliree ?

3. Must they build three each year?

Assuming that to the first and second questions should be
added the word "yearly," I understand your inquiry is in sub-
stance to require my opinion upon the duties of the commis-
sioners with respect to the construction of armories in any given
year.

The duty of the commission seems to be plain. They are
to "construct armories . . . until the volunteer militia shall
be provided with adequate quarters." The provision that they
shall not construct more than three of such armories yearly is
a limitation upon this duty. Except for this limitation the
matter is in the discretion of the commission, and if they in
good faith construct armories as rapidly as possible for the

JAMES M. SWIFT, ATTORNEY-GENERAL. 359

ccommodation of the volunteer militia they are not required
1 any one year to begin the construction of either one, two or
hree new armories. I am of the opinion that the limitation
bove referred to means that the commission shall not have
nder construction in any one year more than three such
rmories.

.iCENSE — Keeper of Hospital for Care of Insaxe and
Feeble-minded — Suitable Person — Resident or Con-
sulting Physician.

Inder the provisions of St. 1909, c. 504, § 24, that "the governor and council may,
upon the recommendation of the state board of insanity, license any suitable
person to establish and keep a hospital or private house for the care and
treatment of the insane, epileptic, feeble-minded, and persons addicted to
the intemperate use of narcotics and stimulants," a physician who is employed
by the owner or owners of such hospital or private house as resident physician
in charge, or who is on the staff of consulting physicians connected therewith,
is not a suitable person to receive such license.

You have requested my opinion in regard to the provisions to the state
)f section 24 of chapter 504 of the Acts of the vear 1909, insanity.

Vnich IS as follows: February 8.

The governor and council may, upon the recommendation of the state
Doard of insanity, license any suitable person to establish and keep a
lospital or private house for the care and treatment of the insane, epileptic,
"eeble-minded, and persons addicted to the intemperate use of narcotics
3r stimulants, and may at any time revoke such license. No such recom-
mendation shall be made unless the said board is satisfied that the person
ipplying therefor is a duly qualified physician, as provided in section
thirty-two, and has had practical experience in the care and treatment
Df such patients. Any person owning or maintaining such a hospital
or private house on the date of the passage of this act shall be entitled
to maintain the same under the provisions of law in force at that time,
except that every such hospital or house shall be subject to the visitation
and supervision of the state board of insanity.

Your specific inquiries are as follows: —

1. Is a physician, who is employed by the owner or owners as resident
physician in charge, on a salary or for a share in the profits, a proper
person to be granted a Hcense under this section?

360

OPINIONS OF THE ATTORNEY-GENERAL.

2. Is a physician, who is not in chai-ge of or residing in such a hospital
or private house and who has no pecuniary interest in the business, but
who is on the staff of consulting physicians, a proper person to be granted
a license under tliis section?

In my opinion it is contemplated by the statute that a license
"to establish and keep a hospital or private house for the care
and treatment of the insane, epileptic, feeble-minded, and per-
sons addicted to the intemperate use of narcotics or stimu-
lants," shall be granted only to a person who is to be the re-
sponsible head of such hospital or private house, that is, "to
one who exercises control or proprietorship" of it. Cf. Com-
monwealth V. Kimhall, 105 Mass. 465, 467. On this view of
the law it is obvious that the answer to your second inquiry
must be in the negative. Your jfirst inquiry raises a more diffi-
cult question, but in my judgment it must be answered in the
same way. The "physician who is employed by the owner or
owners as resident physician in charge" is not the responsible
head of the hospital or private house in such a sense as to en-
title him to be licensed.

To the
Controller
of County
Accounts.

1911
March 3.

County Treasurer — Salaries of Clerks of the Court,
County Commissioners and County Treasurer — In-
creased Population — Readjustment.

Further legislative authority is required before a county treasurer may lawfully
pay increased salaries to the clerks of the courts, the county commissioners
and the county treasurer upon the basis of increased population as determined
by St. 1904, c. 451, § 1.

By your letter of February 2 you request my opinion upon
the construction to be given to St. 1904, c. 451, "An Act
relative to the salaries of clerks of the courts, county commis-
sioners and county treasurers," in which it is provided, in sec-
tion 1, that —

The counties of the commonwealth, for the purpose of establishing
the salaries of clerks of the courts, county commissioners and county
treasurers, are hereby divided into nine classes, according to the following

JAMES M. SWIFT, ATTORNEY-GENERAL. 361

able; and the annual salaries of the clerk of the courts, county commis-
ioners and county treasurer, in full for aU services performed by them,
or each county in a class, shall be as therein specified, paj^able by the
aid county in monthly instalments.

Chen follow nine classes, A, B, C, D, E, F, G, H and I, of
^^hich classes A and D may be taken as examples.

Class A. Counties having a population of less than fifteen thousand,
0 mt, the counties of Nantucket and Dukes County; salaries: — Clerk
'f the courts, six hundred dollars; commissioners (Nantucket, none),
our hundred dollars; treasurer (Nantucket, none), three hundred dollars.

Class D. Counties having a population of from sixty thousand to
linety thousand, to wit, none; salaries: — Clerk of the courts, twent)^-
our hundred dollars; commissioners, twenty-two hundi-ed dollars; treas-
irer, eleven hundred dollars.

The precise question upon which you desire to be advised is
vhether or not the county treasurer, upon being satisfied by
)fficial information of the result of the latest census, is author-
zed to pay to the clerks of the courts, the county commission-
ers and to himself as county treasurer, salaries under the next
ligher class in any case where the census shows that a county
las gained sufficiently in population to be taken from the class
Dclow and placed therein.

The act to which you refer forms one of five statutes passed
n 1904; the other four being chapter 452, "An Act to establish
:he salaries of registers of deeds and assistant registers of
deeds;" chapter 453, "An Act to establish the salaries of the
justices, clerks and assistant clerks of certain police, district
:ind municipal courts;" chapter 454, "An Act to establish the
salaries of the chief justice, associate justices, clerks and as-
sistant clerks of the municipal court of the city of Boston;"
and chapter 455, "An Act to establish the salaries of the judges,
registers and assistant registers of probate." Chapter 452, rela-
tive to the salaries of registers of deeds and assistant registers
of deeds, provides, in section 1, that "registers of deeds shall
receive annual salaries based upon the following scale," and

362 OPINIONS OF THE ATTORNEY-GENERAL.

establishes three classes, A, B, and C. In section 2 it was pro-
vided that —

The salaries of registers of deeds and assistant registers of deeds here-
inbefore specified shall be readjusted in January, nineteen hunched and
six, and every five years thereafter, upon the basis of the average yearly
receipts of the respective registries for the five preceding years, in accord-
ance with the classification set forth in section one.

Chapter 455 was substantially similar in form, providing, in
section 1, that —

Judges, registers and assistant registers of probate shall receive from
the treasury of the commonwealth annual salaries based upon the follow-
ing scale. If the amount in any case comprised in the fhst two classes
exceeds an even hundred number of dollars by a sum less than fifty dollars,
the excess shaU be deducted; and if the excess is fifty dollars or more
a sum shaU be added sufficient to make the excess an even hundred
doUars. . . .

Section 2 provides : —

Salaries of judges, registers, and assistant registers of probate shall be
readjusted in the year succeeding each national or state census, in accord-
ance with the classification set forth in section one.

Both of these statutes contain express provision for readjust-
ment at regular periods upon the basis of population or receipts
of money.

Chapters 451 and 453, which establish classes according to
population, contain no such provision for readjustment, and
do not refer to the State or national census, or to any other
oflBcial determination of the population upon which the divi-
sions are to be based. They both purport to establish salaries,
and not to establish divisions by which the salaries are to be
determined from time to time.

Chapter 451 has been several times amended. St. 1905, c.
179; St. 1906, cc. 276, 290; St. 1907, c. 253; St. 1910, c. 537;
and see St. 1907, c. 145, § 2; St. 1909, c. 232. But none of
these amendments is of much assistance in determining the
question now under consideration. In the case of chapter 453,

JAMES M. SWIFT, ATTORNEY-GENERAL. 363

lowever, a statute which in form is substantially like chapter
:51, the amendments are more instructive. Thus, in St. 1905,
■. 165, it is provided that —

The police court of Lowell, being a court the judicial district of which
las, and has had since the twenty-fifth day of April in the year nineteen
lundred and four, a population of more than one hundred thousand,
hall be included in class B as defined in section one of chapter four liun-
Ired and fifty-three of the acts of the year nineteen hundred and four,
ntitled "An Act to establish the salaries of the justices, clerks and assist-
,nt clerks of certain police, district and municipal covirts"; and the
alaries of the justice, special justices, clerk and assistant clerk of the
lolice court of LoweU shall be those which are established bj^ said chapter
or the courts included in the said class B, to be so allowed from the first
[ay of July in the year nineteen hunched and four.

Vnd in St. 1908, c. 323, which, in like terms, transferred the
)olice court of Lawrence from Class D, where it was placed
)y chapter 453, to Class C, such transfer was made by reason
)f an increased population which entitled it to be so trans-
erred. See also St. 1906, c. 325. Of more significance than
nther of these, however, is St. 1905, c. 339, which provided for
I specific readjustment after the taking of the decennial census
)f the year 1905, to be "effected in each case by the county
:reasurer of the county concerned, in accordance with the pro-
visions of said chapter [St. 1904, c. 453]; and, beginning with
:he first day of January in the year nineteen hundred and six,
che said salaries shall be paid according to the said readjust-
ment." And finally, in St. 1910, c. 501, it was provided, in
section 1, that —

The salaries of the justices, clerks and assistant clerks of the district,
police and municipal courts, other than the municipal court of the city
Df Boston, and the classes into which said courts are distributed, when
:he population of the judicial district of each of said courts as ascertained
oy the last preceding national or state census permits it, shall be so read-
justed, by the officer paying the salary, as to correspond with the classes
md salaries provided for by chapter four hundi-ed and fifty-three of the
icts of the year nineteen hundred and four, and acts in amendment thereof
ind in addition thereto. Payment of salaries so readjusted shall begin
3n the first day of July of the year in which said census is taken.

364

OPINIONS OF THE ATTORNEY-GENERAL.

The obvious purpose of this statute was to estabHsh a method
by which the salaries of the officers included within the provi-
sions of St. 1904, c. 453, might be readjusted in accordance
with the schedules of salaries contained in that chapter wdthout
further recourse to the Legislature, and furnishes the strongest
evidence that without such additional provision the Legislature
did not deem that the statute as originally enacted authorized
such readjustment. Since St. 1904, c. 451, is in form sub-
stantially similar to chapter 453, I can see no reason why the
construction given to the latter chapter should not apply to
the former, and I must, therefore, advise you that in my opin-
ion further legislative authority is required before the county
treasurer may lawfully pay increased salaries to the clerks of
the courts, the county commissioners and the count}^ treasurer
upon the basis of an increased population of the county con-
cerned.

To the
State Board
of Health.

1911
March 7.

State Board of Health — Sources of Water Supply —
Regulation — Artificl\l Reservoirs — Boating and
Fishing.

R. L., c. 75, § 133, as amended by St. 1907, c. 467, § 1, providing in part that the
State Board of Health "may make rules and regulations to prevent the
pollution and to secure the sanitary protection of all such waters as are used
as sources of water supply," and "may delegate the granting and withholding
of any permit required by such rules or regulations to state boards and com-
missions and to selectmen in towns and to boards of health, water boards
and water commissioners in cities and towns, to be exercised by such select-
men, boards and commissions . . . ; and upon complaint of any person
interested said board shall investigate the granting or withholding of any
such permit and make such orders relative thereto as it may deem necessarj'
for the protection of the public health," does not authorize the State Board
of Health, upon petition of certain inhabitants of a town requesting such
Board to cause suitable rules and regulations to permit fishing in certain
reservoirs artificially constructed and now owned and used as a source of
water supply by such town, to reqviire the water and sewer board thereof
to issue permits for fishing, since the regulation of boating or fishing or of
any use of such reservoirs which does not directly relate to the preservation
of the purity thereof is for such town to establish.

By a communication dated February 25 you seek my opinion
upon certain questions respecting the rights of the State Board
of Health in the matter of a petition which has been entered

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

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: —

JAMES M. SWIFT, ATTORNEY-GENERAL. 371

If, at any time hereafter, any specific and particular amendment or
jnendments to the constitution be proposed in the general court, and
,greed to by a majority of the senators and two-thirds of the members
if the house of representatives joresent and voting thereon, such proposed
mendment or amendments shall be entered on the journals of the two
lOuses, with the yeas and nays taken thereon, and referred to the general
curt then next to be chosen, and shall be published : and if, in the general
curt next chosen as aforesaid, such proposed amendment or amendments
hall be agreed to by a majority of the senators and two-thirds of the
aembers of the house of representatives present and voting thereon, then
i shall be the duty of the general court to submit such proposed amend-
lent or amendments to the people; and if they shall be approved and
atified by a majority of the qualified voters, voting thereon at meetings
^gally warned and holden for that purpose, they shall become part of the
onstitution of this commonwealth.

The article contains no specific direction as to the precise
ime when a proposed amendment shall be submitted to the
)eople, and does not expressly limit the authority of the Legis-
ature in this respect to the General Court which agrees to a
)roposed amendment already passed upon by the General
]!ourt of the previous year, and if such limitation exists it ex-
sts only by necessary implication. I am aware of no decision
)f the court upon the point raised by your inquiry, and the
luestion seems to be one of novel impression. In the absence
)f judicial authority in the premises I am inclined to the opinion
hat no sufficient reason is apparent for limiting the power of
he General Court to submit to the people a proposed amend-
nent of the Constitution to the particular Legislature by which
uch proposed amendment was agreed to; and if no action with
aspect to submission was taken by such Legislature, an
imendment so adopted may be submitted to the people for their
iction by a subsequent Legislature, in the form of a resolve
)assed in the usual manner.

372

OPINIONS OF THE ATTORNEY-GENERAL.

To the Bank
Commissioner.

1911
March 28.

Co-operative Bank — Unincorporated Association — Way
OR Manner of transacting Business — Savings Bank.

An unincorporated association formed for the purpose of accumulating a fund for
the purchase of real estate and for building thereon, for making loans and
for accumulating a fund to be returned to the stockholders, the property of
which is vested in trustees and the shares of which mature when they reach
the value of $500, with pro\asion for assignment or withdrawal, and which
does not offer to its members — who are persons having one or more shares
of stock who have signed the articles of association — the money so accumu-
lated according to the premium or rate of interest paid by them for priority,
but invests such money as the funds of a savings bank are invested, does
not transact "the business of accumulating the savings of its members and
loaning to them such accumulation in the manner of a co-operative bank"
in violation of the prohibition of R. L., c. 114, § 1.

Quaere, whether the wa5' or manner in which such association transacts its business
might not lead the public to believe that such business was that of a sa\dngs
bank.

You have requested my opinion upon certain questions rela-
tive to the Attleborough Savings and Loan Association.

The Attleborough Savings and Loan Association is unincor-
porated. Its purpose, as stated in the preamble to its Articles
of Association, is that "of accumulating a fund for the pur-
chase of real estate and for building thereon, for removing in-
cumbrances therefrom, for making lo^ns, and for the further
purpose of accumulating a fund to be returned to stockholders."
Any person holding one or more shares of the stock and having
signed the Articles of Association is a member of the associa-
tion. Articles of Association, Article 1. The title to the prop-
erty of the association is vested in trustees. Article 4. Livest-
ments may be made in loans "on first mortgages of real estate,
in INIassachusetts and Rhode Island, upon shares of this associa-
tion, and upon such other securities as savings banks are au-
thorized to take under the laws of Massachusetts," also "in
real estate in the town of Attleborough," Article 8. ^Members
pay monthly dues of $2 per share and fines for default of pay-
ment. Article 10. Shares mature when they reach the value
of $500, Article 13. Provision is made for assignment or
withdrawal of shares, Article 9. You further state that "the
money accumulated is not offered to the members according

JAMES M. SWIFT, ATTORNEY-GENERAL. 373

0 the premiums or rate of interest bid by them for priority,
)ut is invested almost precisely as are the funds of a savings
)ank."

Your first inquiry is as follows : —

Is this association, on the evidence submitted, transacting the business
if accumulating the savings of its members and loaning to them such
.ccumulations in the manner of a co-operative banlc, contrary to the
iro visions of section 1 of chapter 114 of the Revised Laws?

R. L., c. 114, § 1, provides, in part, that —

No person, and no association or corporation, except foreign associa-
ions and corporations duly licensed by the board of commissioners of
avings banks prior to the fourteenth day of April in the year eighteen
lundred and ninety-six to transact business in this commonwealth, shall
ransact the business of accumulating the savings of its members and
caning to them such accumulations in the manner of a co-operative
)ank, unless incorporated in this commonwealth for such purpose.

I am of opinion that the association in question does not
ransact "the business of accumulating the savings of its mem-
)ers and loaning to them such accumulations in the manner of

1 co-operative bank," contrary to the provisions of the statute
luoted.

It would be difficult to distinguish the manner in which the
issociation in question transacts the business of accumulating
;he savings of its members from that of a co-operative bank.
The association, however, does not loan to them such accumu-
ations in the manner of a co-operative bank. The loaning of
mch accumulations to such of the members as make the best
)ffers is characteristic of a co-operative bank. See Ativood v.
Ihmas, 149 Mass. 167, 169; Attorney-General v. Pitcher, 183
Mass. 513, 516. The loaning of money to its members upon
:heir shares is merely incidental in the case of the association
n question. There are no provisions that such loans shall be
nade to those members who offer the greatest premiums or
'ates of interest, as in the case of a co-operative bank. R. L.,

-• m, § 11.

374 OPINIONS OF THE ATTORNEY-GENERAL,

Your second inquiry is as follows : —

Is this association soliciting or receiving deposits or transacting business
in the vray or manner of a savings bank contrary to the provisions of
section 16 of chapter 590 of the Acts of 1908?

St. 1908, c. 590, § 16, provides as follows: —

No corporation, either domestic or foreign, and no person, partnership
or association except savings banks and trust companies incorporated
under the laws of this commonwealth, or such foreign banking corpora-
tions as were doing business in this commonwealth and were subject to
examination or supervision of the commissioner on June first, nineteen
hundred and six, shall hereafter make use of any sign at the place where
its business is transacted having thereon any name, or other word or
words indicating that such place or office is the place or office of a sa\dngs
bank. Nor shall such corporation, person, partnership or association
make use of or circulate any wo-itten or printed or partly written and partly
printed paper whatever, having thereon any name, or other word or
words, indicating that such business is the business of a savings bank;
nor shall any such corporation, person, partnership or association, or any
agent of a foreign corporation not having an established place of business
in this commonwealth, solicit or receive deposits or transact business in
the way or manner of a savings bank, or in such a way or manner as to
lead the public to beheve, or as in the opinion of the commissioner might
lead the public to believe, that its business is, that of a savings bank.

Though it is not absolutely clear that its way or manner of
transacting business is that of a savings bank, I advise you
that you may properly be of the opinion that the way or man-
ner in which it transacts its business might lead the public to
believe that its business is that of a savings bank.

(

JAMES M. SWIFT, ATTORNEY-GENERAL. 375

rONSTITL'TIONAL LaW — PuBLIC HIGHWAYS — UsE — EREC-
TION OF Structures over Public Ways — Eminent
Domain — Public Purpose.

^ proposed bill which provides that upon petition and after public notice and a
public hearing the board of street commissioners of the city of Boston may,
•w-ith the approval of the maj-or, issue a permit to certain individuals named
therein "to construct and maintain a bridge across Avon Street in said city
for the purpose of connecting buildings owned by them on opposite sides of
said street or for the purpose of a fire escape, on such conditions and subject
to such restrictions as said board may prescribe," purports to confer upon
such indi%aduals an absolute right to be granted by the city of Boston, and
in so far as the grant of such right would be inconsistent with the rights of
other persons, to require the exercise of the power of eminent domain without
pro\'ision for compensation.

\ proposed bill which authorizes the city of Boston through its mayor, if it shall
sell the whole or a part of its real estate on Mason Street in said city, "to
grant to the purchaser of said estate, and his successors in title, the right to
connect the real estate so sold with property on Tremont Street opposite
said real estate by means of a covered passageway or bridge over Mason
Street," and provides for the compensation of any person whose property
may be injured by the erection of the structure so authorized, appears to
contemplate the exercise of the power of eminent domain, not for a public
purpose but for the benefit of certain individuals who may purchase the real
estate described therein.
Both bills are therefore objectionable upon constitutional grounds.

You have submitted to me on behalf of the joint standing TotheHo»ise

Committee

committee on cities certain bills now pending before that °°j^'j*'^^-
I committee, and have stated that my opinion is desired upon Marchsi.
I the following specific question: "With reference to House bills
'numbered 817 and 451, would either or both of these bills,
[if passed, be in your opinion constitutional; or, to put it in

another way, is there any constitutional objection to the

passage of these bills?"
House Bill No. 817 is entitled "An Act to authorize the

Construction of a Bridge over Avon Street in the City of

Boston," and provides in section 1 that —

Upon petition and after seven days' public notice published in at least
three newspapers pubhshed in the city of Boston, and a public hearing
thereon, the board of street commissioners of the city of Boston may,
with the approval of the mayor, issue a permit to Eben D. Jordan and
Edward J. Mitten to build and maintain a bridge across Avon street in
said city for the purpose of connecting buildings owned by them on

376 OPINIONS OF THE ATTORNEY-GENERAL.

opposite sides of said street, or for the purpose of a fire escape, on such
conditions and subject to such restrictions as said board may prescribe.

House Bill No. 451 is entitled "An Act to authorize the
Bridging of Mason Street in the City of Boston," and provides
that —

The city of Boston by its mayor is hereby authorized and empowered,
if it shall sell the whole or part of its real estate on Mason street in said
city, to grant to the purchaser of said estate and his successors in title
the right to connect the real estate so sold with property on Tremont
street opposite said real estate by means of a covered passageway or
bridge over Mason street, said covered passageway to be not more than
twenty feet in width and at the bottom of the floor not less than twenty
feet above the street level.

In section 3 provision is made for the compensation of any
person whose property may be damaged by the erection of the
structure so authorized.

I assume that both Avon Street and Mason Street were laid
out and constructed as public highways, and that although the
fee of the land remains in the landowner, the public have ac-
quired in such streets an easement of travel which includes
"every kind of travel and communicati9n for the movement or
transportation of persons or property which is reasonable and
proper in the use of a public street." Neio England Telephone
& Telegraph Co. v. Boston Terminal Co., 182 Mass. 397, 399;
see also Cheney v. Barker, 198 Mass. 356, 362. The easement
so acquired extends to the use of structures either above or
below the surface of the way, when such structures "are used
by the public or a part of the public, or are held and used in
private ownership for the benefit of the public." New England
Telephone & Telegraph Co. v. Boston Terminal Co., supra;
Sears v. Crocker, 184 Mass. 586, 588. But these uses and the
facilities therefor must be "reasonable in reference to their
effect upon adjacent property, as well as their effect upon other
kinds of public uses of the street," and "a use of the street
which would constitute a grave private nuisance to property
at the side of the street could not have been contemplated by

JAMES M. SWIFT, ATTORNEY-GENERAL. 377

;he law as being acquired by a taking for a highway or street."
Lentell v. Boston & Worcester Street Ry. Co., 202 ]\Iass. 115,
.19. Thus, elevated s.tructures in the street for the use of street
ailways or other instrumentalities of transportation have been
leclared by the Legislature to impose an additional servitude
ipon land taken for street purposes, and provision has been
nade for any injury to property caused by them. St. 1894,
:. 548, § 8; and see St. 1903, c. 163, § 3. Lentell v. Boston
£• Worcester Street Ry. Co., supra; Baker v. Boston Elevated
ly. Co., 183 Mass. 178. This would seem to have been the
heory upon which one of the two bills now before me (House
3ill No. 817) was drafted, for it contains, in section 3, provi-
ion for compensation to any person whose property may be in-
ured by the construction of the bridge authorized in section 1.
louse Bill No. 451, however, contains no such provision, and,
f the structure authorized by it may be considered to be an
nstrumentality of public travel, transportation or communi-
;ation, fairly raises the question whether the erection and main-
enance of such a structure should be held to be a reasonable
md proper use of a public street, or is a use which was not
ncluded in the original easement and imposes a new servitude
ipon the land taken for which compensation must be made.
This question is not free from difficulty. The court has de-
clared, in Sears v. Crocker, 184 Mass. 586, at page 588, that —

Our system, which leaves to the landowner the use of a street above
ir below or on the surface, so far as he can use it without interference
vith the rights of the pubhc, is just and right, but the pubUc rights in
hese lands are plainly paramount and they include, as they ought to
aclude, the power to appropriate the streets above or below the surface
.s well as upon it, in any way that is not unreasonable, in reference either
0 the acts of all who have occasion to travel or to the effect upon the
property of abutters.

Abutters are bound to withdraw from occupation of streets above or
lelow the sui'face whenever the public needs the occupied space for travel.
The necessary requirements of the public for travel were all paid for when
he land was taken, whatever they may be, and whether the particulars
>f them were foreseen or not. The only limitation upon them is that
hey shall be of a kind which is not unreasonable.

378 OPINIONS OF THE ATTORNEY-GENERAL.

The question in each case must depend primarily upon public
necessity and the conditions which exist with reference to the
particular locality affected. If the public use of the streets at
or near Avon Street or Mason Street require that there should
be an elevated structure over either or both of those streets, in
order that public travel, transportation or communication may
be maintained between points upon either side of such streets,
I am inclined to the opinion that the erection of such a struc-
ture might well be held to impose no additional servitude upon
the highway beneath.

But it is essential that the need for such means of communi-
cation should be a public need, and that it should be open to
the public. Nothing in either of said bills shows that the
structures therein authorized are required by any public neces-
sity or are to be instrumentalities of public travel. On the
contrary, it seems that they are not designed primarily for the
use of the public, as such, but to serve the convenience of abut-
ting owners and to enhance the value of their property. In
House Bill No. 817 the permission which may be granted upon
compliance with the requirements therein set forth is to two
individuals, and is "for the purpose of connecting buildings
owned by them on opposite sides of sajd street;" and in House
Bill No. 451 the right to maintain such structure is granted
to the purchasers of certain real estate now^ held by the city of
Boston, and is made appurtenant thereto.

Where a public highway is laid out and constructed the ease-
ment secured by the public is no more than an easement of
travel. The fee remains in the landowner, who may make any
use of his property not inconsistent with its use as a highway.
Commonwealth v. Morrison, 197 Mass. 199, 205; Cheney v.
Barker, 198 Mass. 356, 362. If the erection and maintenance
of structures like those contemplated by the two bills aforesaid
are not inconsistent with the paramount rights of the public
in the streets over which such structures are to pass, the land-
owner requires no permission from the Legislature to erect them.
"The Legislature is the supreme authority in regard to public
rights in the streets and highways" (Boston Electric Light Co. <

JAMES M. SWIFT, ATTORNEY-GENERAL. 379

V. Boston Terminal Co., 184 Mass. 566, 570), and it may define
or limit the extent of the rights which it deems necessary for
the pubhc, or may even abandon some of them by permitting
uses of abutting property which, without such permission,
would involve an interference with the public use, provided that
such abandonment does not go far enough to amount to an
appropriation of public property to private uses. The proposed
acts seem to be more than a legislative declaration that the use
of private property in the manner which they describe does
not interfere with the public easement of travel, — or, in other
words, a definition or limitation of the public use, — and are,
in my opinion, objectionable upon constitutional grounds, in
that they assume to confer upon private persons rights with
respect to the use of abutting property which are made para-
mount to the rights of other persons, which, to that extent,
would be an appropriation of those rights, requiring the exer-
cise of the power of eminent domain. In House Bill Xo. 871
the exercise of this pov^•e^ is clearly contemplated, for it pro-
vides in section 3 for the compensation of any one whose prop-
erty may be injured by the erection of the structure authorized.
House Bill No. 451 contains no such provision, but since it
purports- to confer an absolute right to be granted by the city
of Boston, would necessarily require the exercise of such power
in so far as the grant of such right would interfere with the
rights of others. No information has been submitted to me
respecting the exact limits of the property affected by the pro-
posed legislation or the nature of the title by which it is held.
Said property is not even certainly described in the bills them-
selves. For this reason I am necessarily confined to a discus-
sion of the general principles which appear to be applicable in
the premises. These lead me to the opinion that there is con-
stitutional objection to the passage of either of the bills sub-
mitted to me.

380

OPINIONS OF THE ATTORNEY-GENERAL.

To the House
Committee
on Cities.

1911
March 31.

Constitutional Law — Appropriation of Money raised by
Taxation — Public Purpose — Museum of Fine Arts.

The Constitution of the Commonwealth, in chapter V., section II., imposes upon
the Legislature the duty "in all future periods of this commonwealth, to
cherish the interests of literature and the sciences, and all seminaries of them,"
and "to encourage private societies and public institutions, rewards and
immunities, for the promotion of . . . arts, sciences, . . . and a natural
history of the country," and the appropriation of money in the reasonable
performance of the duty so imposed would be for a public purpose.

A proposed bill authorizing the city of Boston to appropriate money, not exceeding
$50,000 in any single year, for the maintenance and support of the Museum
of Fine Arts in said city, subject to certain conditions to be performed by
the trustees of such museum, as therein prescribed, would therefore be con-
stitutional.

Under existing law, however, the city of Boston has no authority to appropriate
money for such purpose.

You have required my opinion upon the following ques-
tion: —

With reference to House Bill No. 1527, is there any constitutional ob-
jection to the passage of this bill; and, if not, does the city of Boston
now have, in your opinion, the right, without additional legislation, to
appropriate money for the purposes named in the bill ?

House Bill No. 1527 authorizes and empowers th.e city of
Boston to appropriate money, not exceeding $50,000 in any
single year, for the maintenance and support of the Museum of
Fine Arts, subject to the condition that the trustees thereof —

shall continue to open their buildings and collections for free admission
to the people of Boston the same number of days in the week as they now
do, and that said trustees shah annually report to the mayor and the
school committee of the city of Boston statistics showing the financial
condition of said museum, its income and disbursements, and the nature
and kind of instruction given by it and the number of its teachers and
pupils.

INIoney raised by taxation may be expended only for a public
purpose. Lowell v. Oliver, 8 Allen, 247, 253; Opinion of the
Justices, 204 Mass. 607, 611. The power of the Legislature
to authorize an appropriation by the city of Boston for the
benefit of the INIuseum of Fine Arts must depend upon whether

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,

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

JAMES M. SWIFT, ATTORNEY-GENERAL. 399

v'hich this question can be raised, since companies other than
he Boston Elevated Railway Company could object to the stat-
ite only on the ground that it was unconstitutional as to them,
lee Hatch v. Reardon, 204 U. S. 152, 160; Interstate Ry. Co.
-. Massachusetts, supra. I am therefore of opinion that the
till, if enacted, would not be unconstitutional as to companies
ther than the Boston Elevated Railway Company on the
round that it discriminated against them.

As to whether it would be unconstitutional as to such other
ompanies on other grounds, it is, as I have said, impossible to
etermine upon the facts before rne. Whether in any case it
rould be unconstitutional as interfering with foreign or inter-
tate commerce, or as impairing the obligation of a contract,
ould readily be determined. Whether in any case it deprives

corporation of its property without just compensation and
without due process of law involv^es a detailed knowledge as to
he financial condition of the corporation and the amount of
lusiness done by it.

I advise you, therefore, that in my opinion the bill, if en-
cted, would be unconstitutional as to the Boston Elevated
lailway Company, and that it would not be unconstitutional
-S to other street and elevated railway companies on the
Tound that it discriminated between them and the Boston
illevated Railway Company, but that no further advice can
)e given as to its constitutionality as to such other companies
ipon the facts before me.

400 OPINIONS OF THE ATTORNEY-GENERAL.

• Constitutional Law — Contract — Boston Elevated Rail-
way Company — Free Transfers.

St. 1897, c. 500, § 10, which provides that the Boston Elevated Railway Company
may "establish, and take a toll or fare, which shall not exceed the sum of five
cents for a single continuous passage in the same general direction upon the
roads owned, leased or operated by it," which "sum shall not be reduced by
the legislature during the period of twenty-five years, from and after the
passage of this act," with the further provision that the Board of Railroad
Commissioners may, upon petition and after notice and a hearing, reduce
such toll or fare, but that such toll or fare shall not, without the consent of
the corporation, be so reduced as to yield less than a certain fixed income,
and which further provides that "said corporation shall also provide free
transfer from elevated to surface and from surface to elevated cars at all
stations of the elevated lines reached by surface lines and from one elevated
car or train to another at junction points entitling a passenger to a continuous
ride in the same general direction," and such further free transfers on all the
surface lines as may be required by the Board of Railroad Commissioners,
created a contract between the Commonwealth and the Boston Elevated
Railroad Company; and a proposed amendment to the section above quoted,
providing in part that such corporation "may establish for its sole benefit
a toll or fare which shall not exceed the sum of five cents for a single continuous
passage between the terminals and transfer points of said roads, and transfer
checks shall be issued or transfers made on demand without additional pay-
ment, which shall entitle the passenger to a continuous ride from any station
or transfer point to any other station or transfer point on the system," such
transfers to be issued from and between midnight and six o'clock in the
morning, on cars leaving certain specified stations, so as to render to passengers
the same amount of service during the hours from midnight to six o'clock in
the morning for the same fare as they receive during the other hours of the
day, is unconstitutional and void, for the reason that it changes the require-
ments as to transfers established by such contract.

mhteeon™' ^^^ havc Tequestcd my opinion as to whether House Bill

street Railways. js^T^. 11G4, if enacted, would be constitutional. This bill is
May_3^ , entitled "An Act relative to free transfers on the cars of

the Boston Elevated Railroad Company," and amends St. 1894,
c. 548, by substituting for section 16 thereof a new section. As
St. 1894, c. 548, § 16, is not now in force, having been repealed
by St. 1897, c. 500, § 22, it is obvious that the bill is not in
proper form. I assume, however, that the intention is to
amend St. 1897, c. 500, § 10, which is the section now in force
dealing with the same subject-matter, and I answer your ques-
tion upon that assumption.

From the title of the bill and from the petition which accom-
panies it, I infer that the purpose of the bill is to change the

JAMES M. SWIFT, ATTORNEY-GENERAL. 401

equirement as to transfers, and I therefore consider primarily
ts constitutionality in this aspect.

St. 1897, c. 500, § 10, authorizes the Boston Elevated Rail-
vay Company to "establish and take a toll or fare which shall
lot exceed the sum of five cents for a single continuous passage
n the same general direction upon the roads owned, leased or
)perated by it," which "sum shall not be reduced by the legis-
ature during the period of twenty-five years, from and after
he passage of this act," with a provision, however, that the
Board of Railroad Commissioners may, upon petition, after
lotice and hearing, reduce such toll or fare, but that such toll
)r fare shall not, without the consent of the corporation, be so
•educed as to yield less than a certain fixed income. The
lection further provides that —

Said corporation shall also provide free transfer from elevated to surface
ind from surface to elevated cars at all stations of the elevated lines
•cached by suiiace lines and from one elevated car or train to another
it junction points entitling a passenger to a continuous ride in the same
general direction, and such further free transfers on all the surface lines
)f railway owned, leased or operated by it, as may be satisfactory to or
•equired by the board of raili'oad commissioners.

The proposed act provides, in part, as follows : —

Said corporation may establish for its sole benefit a toll or fare which
ihall not exceed the sum of five cents for a single continuous passage
between the terminals and transfer points of said routes. And transfer
checks shall be issued or transfers made on demand, ^\'ithout additional
Dayment, which shall entitle the passenger to a continuous ride from any
station or transfer point to any other station or transfer point on the system
ind said transfers shall be issued from and between the hours of twelve
nidnight and six in the morning on cars leaving and arriving at Adams
square, Hanover street, ScoUay square and Northampton street, Boston,
'md Harvard square, Cambridge, and Uphams Corner, Dorchester, so
xs to render passengers the same amount of service during the hours of
welve midnight and six in the morning for the same fare as they receive
luring the other hours of the daj^

The provisions of St. 1897, c. 500, § 10, undoubtedly created
I contract between the Commonwealth and the Boston Elevated

402 OPINIONS OF THE ATTORNEY-GENERAL.

Railway Company (2 Op. Atty.-Gen. 261, 426, 429; Opinion
of the Attorney-General to the House of Representatives, April
22, 1911), and this contract is still in force. The right to
charge a toll or fare of a fixed amount which shall not be re-
duced except in a prescribed manner is of the essence of the
contract. So is the limitation as to the transfers which may
be required. A change in the rate other than in the prescribed
manner, or, what is equivalent thereto, a change in the require-
ments as to transfers, is an impairment of the contractual
rights of the company. See Detroit v. Detroit Citizens' St. Ry.
Co., 184 U. S. 368, 398; Minneapolis v. Minneapolis St. Ry. Co.,
215 U. S. 417, 434; see also. Interstate Ry. Co. v. Massachusetts,
207 U. S. 79, 86.

The proposed act clearly changes the requirements as to
transfers. It substitutes for a requirement that the corpora-
tion shall provide "such further free transfers on all the surface
lines of railway owned, leased or operated by it, as may be
satisfactory to or required by the board of railroad commis-
sioners," certain absolute requirements. It is immaterial that
the railroad commissioners might make even more stringent re-
quirements than are made by the proposed act. The corpora-
tion is entitled to have the requirements made in the manner
fixed by its contract. To this extent at least, the bill, if
enacted, would be unconstitutional. I do not imply that there
are not other aspects in which it would be unconstitutional.

JAMES M. SWIFT, ATTORNEY-GENERAL. 403

rOVERNOR — STATEMENT OR ESTIMATE OF PROPOSED ExPEXDI-

TURES — Investigation of Officers, Departments or
Institutions of the Commonwealth — Employment of
Agents or Experts.

he authority of the Governor under St. 1910, c. 220, § 1, in substance requiring
that certain statements and estimates should be submitted to the Governor
and Council, and that the Governor should transmit the same to the General
Court with such recommendations, if any, as he might deem proper, was
not extended by the provisions of St. 1911, c. 82, authorizing him "to employ
such persons as he may deem proper to make such investigation of any of
the commissions, departments or institutions of the commonwealth as he
believes is necessary to enable him to carry out the provisions of chapter
two hundred and twenty of the acts of the year nineteen hundred and ten,"
and his power to investigate, by means of agents, investigators or experts
employed under the provisions of the chapter last cited, any officer, depart-
ment or institution, must be predicated upon the existence of a statement
of proposed expenditures and of other matters required by St. 1910, c. 220,
which is to be transmitted to the Legislature,
follows, therefore, that after the Governor has transmitted to the Legislature
the statements or estimates of expenditure in relation to any particular officer,
department or institution there is no longer authority or occasion for any
such investigation.

You submit for my consideration a communication dated .p°g^^rgr
lay 8, 1911, in which you say, in part, that— Gene^r''"''

Under authority of His Excellency the Governor, given by chapter
I of the Acts of the year 1911, on or about the middle of March last,
[r. Harvey S. Chase began an investigation of the department of the
reasurer and Receiver-General. He was granted free access to eveiy
3ok and record in the department and there was sho^\^l and explained to
m ever\'thing he desired.

On March 28 he rendered a report to the Governor, the Executive
ouncil and the joint committee on ways and means. This report was
nt to the Legislature by the Governor and referred to the joint committee
• 1 ways and means.

lid, further, that Mr. Chase —

I IS demanded of me the privilege of further investigating this
apartment and thus covering the same ground of his previous in-
5stigation.
I desire, therefore, to be advised of the extent of the authority for

1911
May 11.

404 OPINIONS OF THE ATTORNEY-GENERAL.

investigating this department given by chapter 82 of the acts of the
General Court of this year.

You further state that Mr. Chase was appointed by the Gov-
ernor to conduct an investigation, on March 17, 1911, by a
written authority, in part as follows : —

Acki^owledging your favor of to-daj', you are hereby authorized to
conduct an investigation in regard to the offices of the Treasurer, . . .
in accordance with the provisions of the legislative act approved ]\Iarch 2,
1911, a copy of which is hereto attached.

Said chapter 82 of the Acts of 1911 did not extend the gen-
eral power of the Governor with respect to investigations, as
defined and described in an opinion rendered to the Governor
by the Attorney-General, dated April 26, 1909. The statute
was passed solely for the purpose set forth therein, namely, to
enable the Governor "to carry out the provisions of chapter
two hundred and twenty of the acts of the year nineteen hun-
dred and ten," which is the so-called "Walker act."

The effect of this latter statute was determined by the Su-
preme Court in an opinion of the justices to the Senate, dated
April 7, 1911, which is, in part, as follows: —

The St. of 1910, c. 220, has made but a very small change in the law
of the Commonwealth. . . .

The only new pro\dsion in this particular is the requirement that it
[estimates and statements] shall be submitted "to the governor and
council for examination, and the governor shall transmit the same to the
general court wdth such recommendations, if any, as he may deem proper."
. . . Under this statute, after the document has been printed it is to
be formally submitted to the Governor and Council for examination as
well as distributed to the members of the General Court; while mider the
former statute the governor was left to obtain a copy as he might. Under
the present statute he is to transmit it to the General Court, so that they
may know that he has had an opportunity to examine it, and he may
make recommendations or not, as he chooses. . . . The only material
effect of this statute is to give a legislative invitation to the Governor
to examine the documents prepared by the Auditor, and to make recom-
mendations upon the subjects contained in them if he chooses, and also

JAMES M. SWIFT, ATTORNEY-GENERAL. 405

0 give him an implied assurance that his recommendations as to the
.mount of the appropriations will receive respectful consideration.

The duty and power of the Governor in the premises, there-
ore, being confined to the transmission of the statements of
stimates for appropriations submitted to the Auditor by the
'arious State officers, boards and commissions, and transmitted
)y the Auditor to the Governor, to be accompanied by a recom-
nendation or not, as he sees fit, it follows that his power to
nvestigate any officer, department or institution must be predi-
cated upon the existence of a statement of proposed expendi-
ures and of other matters required by St. 1910, c. 220, which
nay be transmitted by him to the -Legislature. The employ-
nent of agents, investigators and "experts" is only such as
he Governor believes is necessary to enable him to carry out
he provisions of said St. 1910, c. 220. If there are no such
;stimates for the current year before him for transmission, and
ipon which before transmission he seeks further information, it
oUows that there is no authority or occasion for any investi-
gation under said St. 1910, c. 220, or St. 1911, c. 82.

With reference to this you state that —

The regular appropriations for salaries and expenses of this department
vere approved by the Governor on February 11, being chapter 2'3 of
he acts of this year, and on February 17 His Excellency sent a special
nessage to the House of Representatives recommending the enactment
)f a bill authorizuig the payment of the sum of S3-13,691, the sinking
:und requirements for the pajment of the direct debt of the Common-
.vealth for the year 1911, and $167,833.33 for the payment of certain
serial bonds falling due during said year. This bill was passed and ap-
aroved by His Excellency on INIarch 17, being chapter 157 of the acts
Df this year.

It appears, therefore, that when Mr. Chase was first ap-
pointed by the Governor the statement or estimate of expenses
from the department of the Treasurer, which had been before
the Governor under the requirements of said St. 1910, c. 220,
bad already been transmitted to the Legislature by the Gov-
lernor, and the appropriation had been made and approved by the

406 OPINIONS OF THE ATTORNEY-GENERAL.

Governor. Further, it appears that the statement with refer-
ence to the sinking funds had also been transmitted to the
Legislature and had been enacted into law, with the approval
of the Governor. So far, then, as relates to the department
of the Treasurer itself, or to the sinking fund requirements, the
Governor did not have before him any statement or estimate
under the provisions of said St. 1910, c. 220. There was, there-
fore, no ground for an investigation by the Governor, or his
agent, "to enable him to carry out the provisions of chapter
two hundred and twenty of the acts of the year nineteen hun-
dred and ten," as specified in St. 1911, c. 82. I am of opinion,
therefore, that so far as relates to the operation, maintenance!
and management of the department of the Treasurer and
Receiver-General Mr. Chase w^as without authority from the
beginning, and that the investigation that has been made
w^as made by the consent and with the acquiescence of the
Treasurer.

I am of opinion, therefore, that as Mr. Chase has no au-
thority to conduct an investigation into the management or
methods or details of the department of the Treasurer and Re-
ceiver-General, you are within your rights in refusing him per-
mission so to do.

Constitutional Law — Public Park — Change of Use —
Back Bay Fens — Proprietary Rights.

It is within the power of the Legislature to authorize the park commissioners of
the city of Boston to permit the erection of a public schoolhouse upon land
known as the Back Bay Fens, acquired in fee by the city of Boston under
authority of St. 1875, c. 185, which provided in section 3 that such com-
missioners should "have the power to locate within the limits of the city of
Boston one or more public parks, and for that purpose from time to time to
take in fee, by purchase or otherwise, any and all such lands as said board
may deem desirable therefor, ..." since the proposed use of the land in
question is undoubtedly for a public use and no proprietary rights will be
afifected thereby.

Se°nate. ^ have the honor to acknowledge the receipt of an order of

May 11. the Honorable Senate requiring my opinion upon the following

question of law: "Are the provisions of section 1 of the bill

JAMES M. SWIFT, ATTORNEY-GENERAL. 407

)rinted as Senate, No. 441, now pending in the Senate, a copy
)f which is transmitted herewith, constitutional? "
The section to which the order refers is as follows : —

Section 1. The park commissioners of the city of Boston are hereby
luthorized, upon the request of the schooUiouse commissioners of the
•aid city, -with the approval of the school committee of said city, to pei-mit
he erection of a building for the high school of commerce within the
imits of the Back Bay Fens in said city of Boston.

The Back Bay Fens, so called, were acquired in 1877 by the
)ark commissioners of the city of Boston, under authority of
5t. 1875, c. 185. This statute provided in section 3 that said
commissioners should "have power to locate within the limits
)f the city of Boston one or more public parks; and for that
purpose, from time to time, to take in fee, by purchase or other-
,vise, any and all such lands as said board may deem desirable
:herefor; . . ." By section 6 it was provided that —

The fee of all lands taken or purchased by said board under this act
ihall vest in the city of Boston, and said citj'' shall be liable to pay all
lamages assessed or determined, as provided in the preceding section, and
ill other costs and expenses incurred by said board in the execution of the
oowers vested m them by this act. Said city shall also be authorized to
:ake and hold in trust or otherwise any devise, grant, gift or bequest that
aaay be made for the purpose of laying out, improving or ornamenting
my parks in said city.

Section 17 contained a provision making the act effective upon
acceptance by a majority of the legal voters of the city of Bos-
ton present and voting; and the act was accepted in accord-
ance with such provision on June 9, 1875. I am informed by
the corporation counsel of the city of Boston that the park
dommissioners acquired title by purchase and without con-
dition, and that in order to perfect the title of the city said
lands were subsequently taken in fee under authority of the
provision of St. 1875, c. 185, § 3, above quoted.

From this statement of the situation it appears that the Back
Bay Fens are held for park purposes and that the fee therein

408 OPINIONS OF THE ATTORNEY-GENERAL.

is in the city of Boston. The question is whether it is within
the power of the Legislature to authorize the park commis-
• sioners of said city to permit the erection of a public school-
house upon this land now held for park purposes.

This question must, in my opinion, be answered in the
affirmative. The proposed use of the land in question is un-
doubtedly for public purposes. The legal title to the land,
though acquired at the expense of the city, is held by it in
trust for the public. Holt v. City Council of Somerville, 127
Mass. 408. The Legislature represents the interests of the
public and controls the use which is made of the park. No
action on the part of tax-paying citizens or voters or of the
city council is required. Codman v. Crocker, 203 Mass. 146,
152, 153. The power of the Legislature in this respect is ex-
tensive. In Commonwealth v. Davis, 162 Mass. 510, 511, the
court pointed out that "when no proprietary right interferes,
the Legislature may end the right of the public to enter upon
the public place by putting an end to the dedication to pubHc
uses. So it may take the lesser step of limiting the public use
to certain purposes." On this principle it may, it seems, sub-
ject to this limitation, change the public use. Cj. Mt. Hope
Cemetery v. Boston, 158 Mass. 509, 511. This principle is,
therefore, broad enough to justify the proposed act if such act
does not affect proprietary rights. Upon the facts before me
it does not appear that there are any proprietary rights which
will be affected by the erection of a schoolhouse in the park.
Upon that assumption, the provisions of section 1 of the bill
are, therefore, constitutional.

JAMES M. SWIFT, ATTORNEY-GENERAL. 409

Constitutional Law — Taxation — National Banks —
Tax on Deposits.

A. proposed bill, in substance imposing upon all or certain of the deposits in national
banks within the Commonwealth an annual tax of not more than one half
of one per cent., if enacted, would be unconstitutional as a tax upon the
property of the depositors or upon the property of the bank because it is
not proportional within requirement of the Constitution of Massachusetts,
Part II., c. 1, § 1, Art. IV., that taxes levied upon property must be "pro-
portional and reasonable."

Such a bill would also be unconstitutional as a tax upon the property of the bank
because it is in confhct with Revised Statutes of the United States, § 5219,
which restricts the power of a State to tax national banks to a taxation of the
shares of stock in the names of the shareholders and to an assessment of the
real estate of the bank.

As an excise upon the privileges of the depositors, such bill would be unconstitutional
because the mere right to take and hold property cannot be made the subject
of an excise tax; and as an excise upon any privileges of the bank, it would
be unconstitutional because it would be in conflict with the provisions of
Re-^-ised Statutes of the United States, § 5219, above cited.

In behalf of the committee on wavs and means of the House To the House

"" , , Committee on

of Representatives you have requested my opinion as to ];^jg^^3^°^
whether or not House Bill No. 1827 is constitutional, "and yi^^J:\^
whether the State can legislate on a matter of this kind per-
taining to national banks."
House Bill No. 1827 is as follows: —

Sectiox 1. The provisions of chapter three hundred and forty-two
of the acts of the year nineteen hundred and nine shall apply to national
banks ha\'ing a place of busmess in the commonwealth of Massachusetts,
and said provisions shall only apply to such of the deposits therein re-
ferred to as do not exceed in amount the limits imposed upon deposits in
savings l^anks by section forty-six of chapter five hundred and ninety of the
acts of the year nineteen hundred and eight and acts in amendment
thereof and addition thereto.

Section 2, This act shall take effect upon its passage.

St. 1909, c. 342, referred to in this bill, imposes upon "every
trust company having a savings department, ... an annual
tax on the amount of its deposits therein," substantially such
as is imposed upon savings banks (St. 1909, c. 490, part HI.,
§§ 21-23), — that is, "an annual tax of one half of one per
cent on the amount of its deposits," — except that for the

410 OPINIONS OF THE ATTORNEY-GENERAL.

years 1910, 1911 and 1912 a smaller rate is fixed; and section 4
exempts from local taxation deposits taxed under the provi-
sions of that act. St. 1908, c. 590, § 46, as amended, referred
to in the bill, permits savings banks to "receive on deposit
from any person not more than one thousand dollars," and to
allow interest thereon, "and upon the interest accumulated
thereon, until the principal, with the accrued interest, amounts
to two thousand dollars." See St. 1909, c. 491, § 7. The effect
of the bill, if enacted and valid, would be to impose upon all
or certain of the deposits in the national bank an annual tax of
not more than one half of one per cent. It is not necessary
for me to consider the construction of the act, since upon any
construction it is, in my opinion, invalid upon fundamental
grounds.

The Constitution of this Commonwealth contains two provi-
sions authorizing taxation, which are to be found in Part II.,
c. I., § I., Art. IV. The General Court is authorized to "im-
pose and levy proportional and reasonable assessments, rates
and taxes, upon all the inhabitants of, and persons resident,
and estates lying, within the said commonwealth; and also to
impose and levy reasonable duties and excises upon any prod-
uce, goods, wares, merchandise, and commodities whatsoever,
brought into, produced, manufactured, or being within the
same; . . ." In substance, the first provision authorizes pro-
portional and reasonable taxes upon property; the second, rea-
sonable excises upon privileges.

Section 5219 of the Revised Statutes of the United States
"is the measure of the power of a State to tax national banks,
their property or their franchises. By its unambiguous provi-
sions the power is confined to a taxation of the shares of stock
in the names of the shareholders and to an assessment of the
real estate of the bank. Any state tax therefore which is in
excess of and not in conformity to these requirements is void."
' Owenshoro National Bank v. Oweiishoro, 173 U. S. 664, 669.
See also Third National Bank of Louisville v. Stone, 174 U. S. 432.

The tax sought to be imposed by the bill in question would
be unconstitutional as a tax upon the property of the depositors

JAMES M. SWIFT, ATTORNEY-GENERAL. 411

\3T upon the property of the bank because not proportional
(Opinion of the Justices, 195 Mass. 607); and as a tax upon
the property of the bank would be void because in conflict
with the federal statute referred to. It would be unconstitu-
tional as an excise upon the privileges of the depositors, for the
depositors are merely owners of money on deposit, that is,
creditors of the bank, and "the mere right to own and hold
property" such as this "cannot be made the subject of an ex-
cise tax" (Opinion of the Justices, supra, p. 614); and would be
void as an excise upon any privilege of the bank, because in
3onflict with the federal statute referred to. The tax cannot
in any view be considered as a tax on the "shares of stock in
the names of the shareholders" or "an assessment of the real
estate of the bank." See Owensboro National Bank v. Owens-
boro, supra.

Citizen — Voters — Formation of Credit Union.

Under the provision of St. 1909, c. 419, § 3, that "seven or more citizens of this
commonwealth who have associated themselves by an agreement in writing
for the purpose of forming a credit union, may . . . become a corporation
. . .," the persons signing such agreement need not be voters.

By your letter of May 23 vou require mv opinion "as to To the Bank

•^ "^ ^ ^ ^ " ^ Commissioner.

whether the law (St. 1909, c. 419, § 3) requires all of the ap- ^^^sii^^.
plicants for a credit union to be citizens in the sense that
I they must be voters." •

The section cited provides that —

Seven or more citizens of this commonwealth who have associated
themselves by an agreement in writing for the piu-pose of forming a credit
union may, with the consent of the board of bank incorporation, become
a corporation upon complying with all the provisions of section three of
chapter one hundred and fourteen of the Revised Laws, except those
which relate to the Ihnit of capital to be accumulated.

Your letter states you have before you an agreement of asso-
ciation signed "by seven applicants, only five of whom are
naturalized citizens of this Commonwealth." I assume the two
remaining applicants are unnaturalized aliens.

412 OPINIONS OF THE ATTORNEY-GENERAL.

The language of the section above quoted is explicit and re-
quires that all the parties to the agreement therein provided for
must be citizens of the Commonwealth. An unnaturalized alien
is not a citizen of the United States, and therefore cannot be-
come even by residence a citizen of the Commonwealth. It
follows that the board of bank incorporation may not consent
to the formation of a corporation by such applicants.

Replying to your specific inquiry, however, I have to advise
you that the act does not require that citizens who may associ-
ate themselves for the purpose of forming a credit association
should be voters. A citizen is not necessarily a voter.

May 31.

Mekcantile Establishment — Premises of Telegraph

Company.

Premises maintained by a telegraph company do not constitute a mercantile
establishment within the pro\'ision of St. 1909, c. 514, § 17, that, "'mercan-
tile establishments ' shall mean any premises used for the purpose of trade in
the purchase or sale of any goods or merchandise, and any premises used for
the purposes of a restaurant or for publicly providing and serving meals."

Chief of the ^^ ^ Communication dated May 19 you request my opinion

^mT* ^°'"'°' upon the question whether or not the Postal Telegraph Com-
pany and similar corporations are to -be considered as mer-
cantile establishments, and therefore as coming within the
provision of St. 1909, c. 514, § 56, that "no child under the
age of fourteen years, and no child who is over fourteen and
under sixteen years of age who does not have a certificate as
required by the four following sections . . . shall be employed
in any factor}'-, workshop or mercantile establishment."

The act in which the above provision of law is found is a
codification of the laws relating to labor, and in section 17 cer-
tain words and phrases as used in such codification, including
the phrase "mercantile establishments," are defined. The pro-
vision is as follows : —

"Mercantile establishments" shaU mean any premises used for the
purposes of trade in the purchase or sale of any goods or merchandise,
and any premises used for the purposes of a restaurant or for publicly
pro\iding and serving meals.

JAMES M. SAVIFT, ATTORNEY-GENERAL. 413

I am of the opinion that the premises maintained by the
Postal Telegraph Company are not used for the purposes of
trade in the purchase or sale of any goods or merchandise, or
for the purposes of a restaurant or for publicly providing and
serving meals. It follows, therefore, that such premises are
not to be considered as a mercantile establishment.

Hours of Labor — Vacations — Persons employed at State
House — Governor — Governor and Council.

Neither the Governor nor the Governor and Council have any power to determine
the hours of labor or the length of vacations for persons employed at the
State House.

You have requested my opinion as to "what power, if any, xothe
the Governor or the Governor and Council have with regard isn,

" June 1.

to determining the hours of labor for employees at the State

House, and with regard to the length of their vacations."

In my opinion neither the Governor nor the Governor and
Council have any power in regard to the hours of labor for
employees at the State House, or in regard to their vacations,
except so far as they may have power over employees in the
executive department. The hours of labor of the different em-
ployees are to be determined, in my opinion, by the head of the
department in which such employee is employed. So long as
such heads of departments act reasonably there is apparently
no authority in any one to interfere.

I am aware that on July 15, 1872, the Council adopted the
following order : —

Ordered, That all persons employed in the various departments in the
State House shall be on duty daily from 9 o'clock a.m. to 4 o'clock p.m.,
with an intemiission of one hour for dinner; and that a vacation not
longer than one month be allowed to each employee.

This was apparently adopted under authority of St. 1S6G,
c. 67, which gave to the Executive Council the right to fix the
ofBce hours of the departments. This statute, however, was
repealed by St. 1879, c. 236.

414 OPINIONS OF THE ATTORNEY-GENERAL.

Constitutional Law — Governor — Bills and Resolves —
Action — Five Days — Sundays — Holidays.

Under the provision of the Constitution of the Commonwealth, Part II., c. I., § I.,
Art. II., that "if any bill or resolve shall not be returned by the governor
within five days after it shall have been presented, the same shall have the
force of a law," the governor is to be allowed five full days, beginning at
12 o'clock midnight next following the time when the bill is presented, in
which to exercise his right either to signify his approval by signing such bill
or to return it with his objections in writing to the Senate or House of Rep-
resentatives.

In computing such period of five days, Sunday is to be excluded and holidays
included.

To the I have the honor to reply to the inquiry of Your Excellency,

Governor. ^ "^

Junl\ transmitted to me through your secretary, whether or not,

under the provision of the Constitution of the Commonwealth,
Part the Second, Chapter I., section I., Article II., "if any bill
or resolve shall not be returned by the governor within five
days after it shall have been presented, the same shall have
the force of a law," the five days may be construed to begin
upon midnight of the day on which the bill is presented to the
Governor, exclusive of Sundays and holidays.

I am of opinion that in acting under the constitutional pro-
vision above quoted the Governor is to be allowed five full days,
beginning at 12 o'clock midnight next following the time when
the bill is presented, in which to exercise his right either to
signify his approval of such bill by signing it or to return it
with his objections, in writing, to the Senate or House of Rep-
resentatives, and that in the computation of such periods of
five days Sundays are to be excluded.

With reference to the question of holidays, I have not been
able to find any judicial decisions on the point. It is a general
rule, however, that anything may be legally done on a holiday
which is not expressly prohibited, and that as to the legality of
business done, holidays are different from Sundays. My con-
clusion from the cases I have examined on this point is that
in the case of Sunday it is to be inferred that no work shall be
done, but that in the case of a holiday any work may be done
which is not prohibited by law. There is no prohibition upon

JAMES M. SWIFT, ATTORNEY-GENERAL. 415

he Governor forbidding him to veto a bill on a holiday, and
therefore assume that he may do so. As he may express his
eto on a holiday, I am of the opinion that the better rule is
0 include the holiday as one of the five days allowed under the
onstitutional provision.

Statute — Presumption of Lawful Passage — Adminis-
trative Officers.

'he presumption arising from the proper custody and due authentication of an
act of the Legislature that such act was passed in accordance with the require-
ments of the Constitution, should be regarded as binding upon administrative
officers, and such act should be regarded by them as having "the force of a
law."

In behalf of the Civil Service Commission you request my To the

,, ii(-i i*i'' • ^ ^ (I \ Civil Service

>pmion as to whether St. 1911, c. 119, which is entitled An Commission.
^Lct relative to qualifications for examination by the civil J""e 7.
ervice commission," has the "force of a law." This act,
ifter having passed both branches of the General Court, was
'laid before the Governor for his revisal," and was by him
•eturned to the House of Representatives, in which branch it
)riginated, without his approval. Thereupon, as appears from
:he journal, a quorum being present, more than two-thirds of
:he members present but less than two-thirds of the entire
nembership (unless the members paired in favor be counted)
ligreed to pass it. Thereafter, it was sent to the other branch,
md was approved by two-thirds of the members present. You
jcek my advice as to whether upon these facts the act was le-
gally passed; that is, whether the constitutional requirement
'or the passage of a bill over the Governor's veto, that two-
thirds of the Senate or House of Representatives, in which it
originated, should agree to pass it (Const., Part II., c. 1, § 1,
^■Tt. II.), was complied with.

The bill is now deposited with the Secretary of the Common-
«-eaIth, who, under the Constitution (Part II., c. 2, § 4, Art.
n.), has the custody of the records of the Commonwealth. It
Jears the statements, signed, respectively, by the speaker of the

416 OPINIONS OF THE ATTOKNEY-GENERAL.

House and the president of the Senate, that it was passed to be
enacted by those branches. It also bears the statement, signed
by the speaker and by the clerk of the House, that the bill,
"having been returned to the House of Representatives by His
Excellency the Governor with his objections thereto in writing,
is passed by the House of Representatives notwithstanding said
objections, two-thirds of the members having voted in the
affirmative;" and the statement, signed by the president and
by the clerk of the Senate, that it "has been passed in concur-
rence by the Senate, the objections of His Excellency the Gov-
ernor to the contrary notwithstanding, two-thirds of the mem-
bers present having approved the bill." Said bill is, therefore,
in the proper custody and duly authenticated, and is presumed
to have been enacted in accordance with constitutional require-
ments. Whether such presumption can be overcome by refer-
ence to the legislative journals is a matter upon which the
courts are not in agreement. The Supreme Court of the United
States holds that a bill wdiich is in proper custody and duly
authenticated is conclusive evidence of its execution and valid
enactment (Field v. Clark, 143 U. S. 649; Flint v. Stone-
Tracy Co., 220 U. S. 107), and the same view is held by nu-
merous State courts. Other State courts take a different view.
Without expressing an opinion as to the view which is likely
to be adopted by the Supreme Judicial Court of this Common-
wealth when the case comes before it, I advise you that the
presumption arising from proper custody and due authentica-
tion should be regarded as binding upon administrative officers,
and that said act should be regarded by your commission as
having the "force of a law." I do not, of course, intend by so
advising you to imply that if the journals were referred to it
would appear that the bill was not legally enacted. Upon care-
ful consideration I have concluded that I ought not to express
an opinion in answer to that inquiry.

JAMES M. SWIFT, ATTORNEY-GENERAL. 417

'oRPORATiox — Charter — Purpose — Holding Compaxy —
Acquisition of Stock of Domestic Street Railway,
Gas and Electric Light Corporations.

nder the provisions of St. 1903, c. 437, § 7, as amended by St. 1906, c. 286, § 7,
that "three or more persons may associate themselves by a written agreement
of association with the intention of forming a corporation under general laws
for any lawful purpose which is not excluded by the provisions of section one
except to buy and sell real estate," a corporation may be organized for the
purpose "to buy and hold a majority of the shares of the capital stock of
any street railway, gas and electric light companies organized under the laws
of this commonwealth to do business within this commonwealth."

You request my opinion as to whether "a corporation may To the Com-
missioner of
e organized under chapter 437 of the Acts of the year 1903 Corporations.

)r the following purpose: 'to buy and hold a majority of the J^^^-
lares of the capital stock of any street railway, gas and elec-
*ic light companies organized under the laws of this Common-
'ealth to do business within this Commonwealth.' "
It is well established in this Commonwealth that a corpora-
ion may be organized under the general laws for the purpose
f acquiring the stock of other corporations under the pro-
isions of St. 1903, c. 437, § 7, as amended by St. 1906, c. 286,
"hich is as follows: —

Three or more persons may associate themselves by a ■\\Titten agreement
f association wdth the intention of forming a corporation under general
iws for any lawful purpose which is not excluded by the provisions of
action one except to buy and sell real estate.

By section 1, as amended by St. 1910, c. 385, it is provided
lat the purposes excluded from its provisions are: —

■purpose of carr^-ing on the business of a bank, savings bank, co-

■ ative bank, trust company, surety or indemnitj' company, or safe

I>osit company, or to corporations organized under general or special

ws of this commonwealth for the purpose of carr\'ing on within the

Duimonwealth the business of an insurance company, railroad, electric

iiilroad or street railway company, telegraph or telephone company.

IS or electric light, heat or power company, canal, aqueduct or water

Jmpany, cemetery or crematory company, or to any other corporatioas

hich now have or mav hereafter have the right to take or condcnm

418 OPINIONS OF THE ATTORNEY-GENERAL.

land within the commonwealth, or to exercise franchises in public ways
granted by the commonwealth or by any county, city or town; but, except
as hereinbefore provided, the provisions of this section shall not be con-
strued to prohibit the organization of a corporation under the provisions
of this act for the purpose of carrying on any lawful business outside of
this commonwealth.

The question is then presented whether the ownership of
stock for purposes of investment or control is a lawful purpose
under the foregoing provisions of law\

In and of itself the ownership of stock is undoubtedly a law-
ful purpose; and if expressly authorized, stock may be acquired
and held for purposes of investment or bought and sold for pur-
poses of profit. It is only when contrary to public policy as
declared by express statute or by the principles of common law
that such holding will become unlawful. Is such acquisition
and ownership unlaw^ful w-hen the corporations to be controlled
by means of the ownership of stock are not business corpora-
tions but public-service corporations, such as gas and electric
light or street railway companies? I am aware of no provi-
sion of law wdiich expressly forbids such ownership in the
case of public-service corporations. It has been suggested that
the organization of a business corporation to acquire the stock
of or to control public-service corporations is in effect the
organization of public-service corporations under the business
corporation law (St, 1903, c. 437), which constitutes a violation
of so much of section 1 as provides that it shall not apply
to the corporations enumerated, including street railway com-
panies and electric light companies. In my opinion, however,
this contention is disposed of by the language of the court
in Pullman Car Co. v. Missouri Pacific Co., 115 U. S. 587, and
in Peterson v. Chicago, Rock Island & Pacific Ry. Co., 20.:
U. S. 364, 391, where the court said: —

It is true that the Pacific company practically owns the controlling
stock in the Gulf compam', and that both companies constitute elements
of the Rock Island system. But the holding of the majority interest
in the stock does not mean the control of the active officers and agentf
of the local company doing business in Texas. That fact gave the Pacifi<

JAMES M. SWIFT, ATTORNEY-GENERAL. 419

i iompany the power to control the road by the election of the directors of
I the Gulf company, who could in turn elect officers or remove them from
;:he places already held; but this power does not make it the company

:ransacting the local business.
This record discloses that the officers and agents of the Gulf company

control its management. The fact that the Pacific company owns the
j jontrolHng amounts of the stock of the Gulf company, and has thus the
I DOwer to change the management, does not give it present control of the

jorporate property and business.

I This conclusion, however, is based upon the assumption that
:he holding corporation is organized in good faith to conduct

I ;he business of acquiring and owning the stock specified, and is
lot a device or trick to avoid the consequences of illegal acts
3r to accomplish a purpose which would not be permitted to a
3ublic-service corporation.

The question whether the organization of a holding company
:or the purpose of acquiring the stock of and controlling a pub-
ic-service corporation is against public policy as tending to
create a monopoly is a more difficult one. Numerous cases in
Dther jurisdictions have decided contrary to such organization,
[n this Commonwealth, however, it appears to be the estab-
ished policy to restrict competition in the case of such public-
iCrvice corporations as gas and electric light companies and
itreet railway companies, subject to regulation by the State.
566 Weld V. Gas and Electric Light Commissioners, 197 Mass.
556, 558. Indeed, it may be said that in this Commonwealth
ill public-service corporations are so supervised and controlled
Dy the public authorities that there is no longer unrestricted
competition, upon the theory that the rights of the public are
Detter served by careful regulation than by unregulated com-
oetition.

In this Commonw^ealth, also, there appears to be no public
3oHcy opposed to the creation of holding companies, so called,
3ven when they are for the purpose of holding the stock of
public-service corporations. Thus, by St. 1909, c. 519, the
Boston Railroad Holding Company was incorporated for the
purpose "of acquiring and holding the whole or any part of

420

OPINIONS OF THE ATTORNEY-GENERAL.

the capital stock, bonds and other evidences of indebtedness of
the Boston and Maine Railroad, and of voting upon all certifi-
cates of stock so acquired and held . . ." For many years
voluntary associations, resembling in many of their attributes
corporations, have been organized and are maintained to acquire
the stock of public-service corporations.

I am, therefore, of the opinion that the public policy of the
Commonwealth does not appear to be opposed to the creation
of holding companies created for the purpose of acquiring and
holding the stock of street railways or gas and electric light
companies, and that a provision authorizing such acquisition
and holding, in the charter of a business corporation organized
under the general laws, would not express an unlawful purpose
as against public policy. That is, in my opinion a corporation
may be organized under chapter 437 of the Acts of 1903 for
the purposes set forth in your inquiry.

To the Board
of Harbor and
Land Com-
missioners.

1911
June 24.

Hours of Labor — Dumping Inspectors — Civil Engineer.

Dumping inspectors employed by the Board of Harbor and Land Commissioners,
whose duty it is "to see that all material which is to be dumped in tidewater
is transported and dumped in its proper locality, none of it being deposited
in any other place," are not "workmen, laborers or mechanics" within the
meaning of St. 1911, c. 494, § 1, providing that "the service of all laborers,
workmen and mechanics now or hereafter employed by the commonwealth
... is hereby restricted to eight hours in any one calendar day."

The further provision of such section that "engineers shall be regarded as mechanics
within the meaning of this act" does not extend to or include persons who
follow the profession of ci\Tl engineering.

You have requested my opinion with reference to the stand-
ing of dumping inspectors under the provision of section 1 of
chapter 494 of the Statutes of 1911, that "the service of all
laborers, workmen and mechanics now or hereafter employed
by the commonwealth ... is hereby restricted to eight hours
in any one calendar day."

You state that the duties of dumping inspectors, who are
civil service appointees, are, "To see that all material which is
to be dumped in tidewater is transported and dumped in its

(

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.

JAMES M. SWIFT, ATTORNEY-GENERAL. 423

i As appears from the section last quoted, the general provi-
ions of the act do not take effect until "its acceptance by a
najority vote of the legal voters of the town of ^Yest Brook-
leld present and voting thereon at a legal meeting called for
he purpose within three years after its passage." If the act is
!o accepted, the town is authorized to issue "bonds, notes or
crip to an amount not exceeding thirty thousand dollars."
Hich bonds, notes or scrip, however, if issued, must be issued
n accordance with a vote of the town. There is nothing in
he act from which it is to be implied that the vote by which
he act is accepted is also a vote to issue bonds, notes or scrip,
^n voting to issue bonds, notes or scrip the town must, of
course, follow the statutory requirements. So far as the special
let prescribes the details of such issue it is to be followed; in
)ther respects the general law controls. Cf. 1 Op. Atty.-Gen.
263. The special act does not state whether the vote to issue
Donds, notes or scrip shall be a majority or a two-thirds vote.
The general law (R. L., c. 27, § 8) requires, in the case of a
town, "a vote of two thirds of the voters present and voting
at a town meeting," and, in the case of a city, "of two thirds
Df all the members of each branch of the city council." It
follows that "a vote of two thirds of the voters present and
voting" is required to authorize the issue of bonds, notes or
scrip under authority of the act here in question. The correct-
ness of this view appears from the fact that it is expressly
provided by general law (R. L., c. 27, § 21) that where a city
accepts by a vote of two thirds of the legal voters an act to
supply it with water, " a vote of the majority or the members
of each branch of the city council" is sufficient to authorize the
issue of bonds. By this statute it is recognized that in cases
not within this exception a vote "of two thirds of all the mem-
bers of each branch of the city council" or "of two thirds of
the voters present and voting at a town meeting," as the case
may be, is necessary. Cf. St. 1876, c. 19.

424 OPINIONS OF THE ATTORNEY-GENERAL.

Attorney-General — Duties — Limit of Time — Constitu-
tional Law — Referendum — Matter of Local Self-
government.

The senate has no authority to fix a limit of time within which the Attorney-General
is to perform his duties or any of them.

A provision in a proposed bill that "this act shall be submitted to the qualified
voters of the Commonwealth at the- next State election, in answer to the
question, ' Shall a law enacted by the General Court of the year 1911 relative
to the development of the Port of Boston and authorizing the expenditure of
$9,000,000 for that purpose, be accepted' . . ." does not fall within the excep-
tion permitting a referendum in matters of local self-government, and would,
therefore, be unconstitutional.

To the I have the honor to transmit herewith mv opinion in re-

teenate. _ ^ '■

juf ^13 sponse to the following order to the Honorable Senate, dated

^^^' July 12, 1911: —

Ordered, That the Attorney-General be requested to furnish to the
Senate forthwith his opinion on the following question: Wliether the
following pending amendment of the Senate BiU relative to the develop-
ment of the port of Boston (printed as Senate, No. 570), referring the
measure by referendum to the voters of the Commonwealth, is constitu-
tional, to wit: striking out section 19 and inserting in place thereof the
follo\snng new section: — "Section 19. This act shall be submitted to
the quahfied voters of the commonwealtli at the next state election in
answer to the question ' Shall a law enacted by the general court of the year
nineteen hundred and eleven relative to the development of
the port of Boston and authorizing the expenditure of nine
million doUars for that purpose be accepted?' If a majority

VES.

of the voters voting thereon vote in the affirmative, this act shall there-
upon take effect; otherwise it shall be null and void."

The form of the order compels me to respectfully remind the
Honorable Senate that it has no authority to fix the limit of
time within which the Attorney-General shall perform his duties
or any of them. Therefore, so much of the order as requires
my opinion forthwith I respectfully disregard. INIy desire, how-
ever, to assist the Honorable Senate in the performance of its
duties, as well as the deference I owe that honorable body, has
caused me to give attention to the question submitted as early
as I could consistently with the other duties of my office.

JAMES M. SWIFT, ATTORNEY-GENERAL. 425

In my opinion the proposed referendum as set forth in said
order is unconstitutional within the principles now well estab-
lished in this Commonwealth, as stated in the Opinion of
the Justices, 160 Mass. 586, and in the decisions and discussions
in the following cases: Brodbine v. Revere, 182 Mass. 598;
Graham v. Roberts, 200 Mass. 152; and Wyeth v. Cambridge
Board of Health, 200 Mass. 474; and in the opinion of my
learned predecessor, Attorney-General Malone, to the com-
mittee on the judiciary, under date of April 3, 1907 (ante,
p. 88). While the proposed legislation in some respects may
be said to be a statute of local concern, it appears that the
expenses are to be borne by the State at large, and the
referendum is directed to the voters of the State at large.
Said referendum, therefore, does not come within the exception
permitting a referendum in matters of local self-government,
within the meaning of said decisions.

Attorney-General — Opinion — Statement of Facts —
Monopolies — Public Policy — Legislature.

The Attorney-General is not required to express an opinion upon any case or to
take any other action relative thereto upon the request of a State officer,
board or commission unless sufficient facts are stated to enable him to come
to a definite conclusion in the premises.

The determination of the attitude of the Commonwealth toward monopolies is
primarily a function of the Legislature, and does not fall within the scope
of the duties of the Attorney-General.

To vour letter of July 3, 1911, I have been giving as care- xothe

"• '^ 1 (• • Governor.

ful and earnest consideration as the contents thereof permit, mi

In it you make the following statements : —

Complamts are current that the prosperity of the shoe industry in
' this Commonwealth has been seriously impaired and is further threatened
by the existence of a monopoly in shoe machinery. . . .

It is represented that practically all the shoe machinery in use in Massa-
chusetts is owned by a single corporation which, though organized under
the laws of another State, has its principal office here. It is practically
impossible for any shoe manufacturer to buy his machinery or any part
of it. He can secure it only upon lease and upon terms arbitrarily fixed

July u.

426 OPINIONS OF THE ATTORNEY-GENERAL.

by this corporation, which is said to be without competition in the manu-
facture of shoe machinery. The company has since the date of its organi-
zation, by various methods, acquired or destroyed the business of every
competitor. It accordingly now has a complete and absolute monopoly
of the entire field. . . .

Complaints are rife that the corporation has used its power to the
disadvantage of our local industry. It has enforced oppressive terms
and has discriminated against locaUties, and m a measure has discriminated
against m.anuf acturers here in favor of those located in other States. There
is a well-founded current belief that the arbitrary restrictions imposed
by this monopoly are responsible for the depression of the industry of
which our manufacturers are beginning seriously to complain.

I call your attention to the fact that within the year last past, when
its monopoly was threatened by competition, this corporation acquired
the machines, the manufacturing plants and the patents of a prominent,
independent shoe machinery manufacturer. If this transaction could
have been prevented it would have afforded distinct relief and protection
against the present situation of absolute monopoly and autocratic control.
It is of importance now to determine whether the current belief as to its
invalidity is justified, and if so, what remedy may be applied.

You then proceed as follows : —

Assuming the facts to be as outhned above, I respectfully request
your opinion upon the following points : —

1. Is the existing law sufficient to enable ypu, as the chief law officer
of the Commonwealth, successfully to accomplish the destruction of
this monopoly, or the reUef in any measure of the shoe industry of the
Commonwealth from the power of this corporation absolutely to control
and dominate our shoe manufacturers ?

2. Was the acquisition by this corporation of the shoe machinery,
the manufacturing plants and the letters patent of an independent manu-
facturer in September, 1910, in \'iolation of any existing law of the Com-
monwealth ?

3. If, in your opinion, the existing law is insufficient to give relief,
what other or further legislation is in your opinion necessary or expedient
to curb or break the power of this alleged monopoly ?

From a legal standpoint, and as a basis for an opinion that
will be of any value whatever, I am unable to find in your letter
anything that permits or enables me to come to any conclusion.
It contains no statement of facts or evidence such as is neces-
sary as a basis for legal consideration or action.

JAMES M. SWIFT, ATTORNEY-GENERAL. 427

However, the deference that I owe to the office of the Chief
Executive of this Commonwealth has led me to consider said
letter in a broad and general way as a request from you for
(1) a statement as to existing law, and (2) a statement as to
the necessity or expediency of further legislation concerning the
subject of manufacturing monopoly in this Commonwealth. So
far as I am able I advise you, therefore, along the lines of these
inquiries.

As io Existing Law. — There are now upon the books three
statutes which bear upon the subject of monopolies.^ These
are R. L., c. 56, § 1; St. 1907, c. 469; and St. 1908, c. 454.
There are also important common law principles, a considera-
tion of which would be essential to any complete statement of
the law of monopolies. Unless, however, it appears that no
reUef can be obtained under the statutes cited, it is unnecessary
to consider whether relief could be obtained apart from these
statutes.

R. L., c. 56, § 1, prohibits making "it a condition of the sale
of goods, wares or merchandise that the purchaser shall not sell
or deal in the goods, wares or merchandise of any other person,
firm, corporation or association," and imposes a penalty for the
violation of the provisions of the section. There is no sug-
gestion in your letter that these provisions have been violated
by the corporation to which you refer.

St. 1907, c. 469, prohibits inserting in or making "it a con-
dition or provision of any sale or lease of any tool, implement,
appliance or machinery that the purchaser or lessee thereof shall
not buy, lease or use machinery, tools, implements or appliances
or material or merchandise of any person, firm, corporation or
association other than such vendor, or lessor," and imposes a
penalty for the violation of the provisions of the act.

If Your Excellency has any evidence or sources from which
such evidence might be obtained of the violation of either of
the foregoing statutes, I have to advise you that the same
should be submitted to the district attorney for the district in

1 The efifect of St. 1911, c. 503, b limited to procedure.

428 OPINIONS OF THE ATTORNEY-GENERAL.

which such violation was committed, since he has charge of the
administration of the criminal law in that regard.

St. 1908, c. 454, is entitled "An Act relative to monopoHes
and discriminations in the sale of articles or commodities in
common use." Its first and second sections are as follows: —

Section 1. Every contract, agreement, aiTangement or comlDina-
tion in violation of the common law in that thereby a monopoly in the
manufacture, production or sale in this commonwealth of any article
or commodity in common use is or may be created, established or main-
tained, or in that thereby competition in this state in the supply or price
of any such article or commodity is or may be restrained or prevented,
Of in that thereby, for the purpose of creating, estabhshing or maintaining
a monopoly within this state of the manufacture, production or sale of
any such article or commodity, the free pursuit in this state of any lawful
business, trade or occupation is or may be restrained or prevented, is
hereby declared to be against public pohcy, illegal and void.

Section 2. The attorney-general, or, by his direction, a district
. attorney, may bring an action in the name of the commonwealth against
any person, trusteOj director, manager, or other officer or agent of a cor-
poration, or against a corporation, to restrain the doing in this common-
wealth of any act herein forbidden or declared to be illegal, or any act in,
toward or for the making or consummation of any contract, agreement,
arrangement or combination herein prohibited, wherever the same may
have been made. The superior court shall haye jurisdiction to restrain
and enjoin any act herein forbidden or declared to be illegal.

Obviously, this statute is of broad application. It is im-
possible for me, however, to advise you either as to the prob-
able outcome of a proceeding brought thereunder against the
corporation to which you refer, or as to the legality of the
contract in question, without having a complete knowledge of
the facts involved. I therefore respectfully suggest that you
submit to me the facts and evidence upon which your con-
clusions are based, that I may institute proceedings under this
statute if the facts appear to justify such action. It is im-
possible for me to predicate any opinion or official action upon
manifest hearsay or assumptions.

As to the Necessity or Expediency of Further Legislation. —
For the purpose of advising you as to the necessity or expedi-

JAMES M. SWIFT, ATTORNEY-GENERAL. 429

ency of further legislation I have the same need of detailed in-
formation as to the facts as for the purpose of advising you
as to the apphcation of existing law. Furthermore, the deter-
mination of the Commonwealth's attitude toward monopoly is
primarily a legislative function, and does not fall within the
scope of the duties of the Attorney-General.

It is as much my earnest desire as it is that of Your Excel-
lency that the laws of the Commonwealth shall be strictly en-
forced, and that such corrections or amendments shall be pro-
vided as may appear necessary in any proper case. Manifestly,
however, action or legislation based upon insuflficient informa-
tion and evidence would result in disaster and confusion, a
result which Your Excellency, I assume, as well as I myself,
would greatly deplore.

Charles River Basin — Metropolitan Park Commission
— Lechmere Canal — Authority to widen and
deepen.

The Metropolitan Park Commission, under the p^o^^sions of St. 1903, c. 465, which
in section 4 required the Charles River Basin Commission to "dredge navigable
channels in the basin" and to "dredge Lechmere canal to such depths as will
afford to and at the wharves thereon not less than seventeen feet of water up
to and including Sawj'er's lumber wharf, and not less than thirteen feet of
water from said wharf up to the head of the canal at Bent street," and of St.
1909, 0. 524, § 1, by which such commission succeeded to "all the powers,
rights, duties and liabilities" of the Charles River Basin Commission, has
authority to widen a part of Lechmere Canal, to reinforce the adjoining land
by piling and to dredge the part of the canal so widened to the depth pre-
scribed in said chapter 465.

You have requested my opinion in behalf of the Metropolitan to the Metro-
Park Commission as to whether it has authority under St. Commission.
1903, c. 465, and St. 1909, c. 52-1, to widen a part of Lechmere August i.
Canal, to reinforce the adjoining land by piling and to dredge
the part of the canal thus widened to the depth prescribed in
said chapter 465.

By St. 1909, c. 524, § 1, the Metropolitan Park Commission
succeeds to "all the powers, rights, duties and liabilities" of
the Charles River Basin Commission. By St. 1903, c. 465, § 4,

430 OPINIONS OF THE ATTORNEY-GENERAL.

the Charles River Basin Commission was required to "dredge
navigable channels in the basin," and to "dredge Lechmere
canal to such depths as will afford to and at the wharves
thereon not less than seventeen feet of water up to and includ-
ing Sawyer's lumber wharf, and not less than thirteen feet of
water from said wharf up to the head of the canal at Bent
street." The section further provided as follows: —

The commission shall do all such dredging and all strengthening of
the walls of the canals and of the basin where dredging is done by the
driving of prime oak piles two feet on centres along the front of said
wharves or walls, and all removing and relocating of pipes and conduits
made necessary by such dredging, so that vessels requiring a depth of
water not exceeding the respective depths above prescribed can lie along-
side of, and in contact with, the wharves; and this work shall be done
in such manner as to cause the least possible inconvenience to abutters,
and shall be finished on or before the completion of the dam; and after
the walls or wharves have been so strengthened, all repairs on or rebuilding
of the walls and wharves shall be done by the abutters.

The commission shall do such dredging in the basin outside of the
channels aforesaid as may be necessary for the removal of sewage,
sludge or any offensive deposit; shall do such other dredging as it shall
deem proper, and shall take all proper measures for the destruction of
malarial mosquitoes in the basin and its vicinity.

The part of the canal in question is northwest of Commercial
Avenue and runs from Commercial Avenue to the point where
the canal turns toward the south. The canal is here 100 feet
wide and is bounded on the southwest by land of the heirs of
John T. Scully. The southwest side of this part of the canal is
an "open shore." It is proposed that the heirs of John T.
Scully allow a part of their land to become a part of the canal,
and that the commission reinforce the adjoining land by piling
and dredge the canal to a width of 115 feet. Your inquiry
is as to whether this proposed scheme may legally be carried
out.

So far as the widening of the canal is concerned I am of
opinion that there can be no legal objection to permitting the
abutting owners to allow their land to become a part of the
canal to the extent proposed. So far as the dredging of the

JAMES M. SWIFT, ATTORNEY-GENERAL. 431

I canal is concerned the only express requirement here material
' is that it be dredged "to such depths as will afford to and at
the wharves thereon not less than seventeen feet of water.
..." If as a matter of fact the proposed dredging is rea-
sonably incidental to the fulfilling of this requirement, such
dredging is authorized. So far as the driving of piles is con-
cerned, the statute makes certain specific requirements. Even
if these express requirements do not apply in front of open
shores, the commission is authorized to "take such measures
as are necessary to protect the channel of the canals." I ad-
vise you, therefore, as my predecessor advised the Charles River
Basin Commission in reply to a similar inquiry, that "if . . .
in your opinion, as a matter of fact, the driving of the piles in
question is a reasonable method of protecting a channel dredged
under the statutory requirement that Lechmere canal be
dredged, you have . . . authority to do such driving of piles."

Taxation — Bonds of Domestic Electric Light Corpora-
tion SECURED BY MORTGAGE ON ReAL EsTATE AND PER-
SONAL Property — Exemption.

i The bonds of a domestic electric light corporation secured by a mortgage of real
estate within the Commonwealth and of personal property are not exempt
from taxation under the pro\-isions of St. 1909, c. 490, part I., § 4, cl. 2, that
personal estate, for the purpose of taxation, shall not include "any loan on
mortgage of real estate, taxable as real estate, except the excess of such loan
above the assessed value of the mortgaged real estate."

You have requested mv opinion as to whether the mortgage to the Tax

^ "• ^ Commissioner.

bonds of the Boston Electric Light Company, a domestic cor- ^^jon ^^
poration, are exempt from taxation. The bonds in question
are secured by a mortgage of real estate within the Common-
wealth and of personal property. The amount of the issue of
bonds is less than the assessed valuation of the mortgaged
real estate.

The bonds are taxable under St. 1909, c. 490, part L, § 4,
cl. 2, which provides that personal estate for the purpose of tax-

432 OPINIONS OF THE ATTORNEY-GENERAL.

ation shall include "money at interest, and other debts due
the person to be taxed more than he is indebted or pays in-
terest for; but not including in such debts due him or indebted-
ness from him any loan on mortgage of real estate, taxable as
real estate, except the excess of such loan above the assessed
value of the mortgaged real estate," unless such bonds con-
stitute a "loan on mortgage of real estate, taxable as real
estate," within the meaning of the statute. In Brooks v. West
Sijringfield, 193 Mass. 190, it was held that bonds secured by
mortgage of real estate in this Commonwealth, real estate in
other States and personal property were not exempt from tax-
ation under this statute, then R. L., c. 12, § 4. The prin-
ciples therein laid down are applicable to bonds secured by
mortgage of real estate in this Commonwealth and personal
property. They are, in my opinion, applicable though the
amount of the issue of bonds is less than the assessed valuation
of the mortgaged real estate, as in the case of the bonds in
question. I advise you, therefore, that the mortgage bonds of
the Boston Electric Light Company are taxable.

Extradition — Governor — Duty of Executive —
Discretion.

Where the papers accompanjang the demand of the Executive of another State
for the arrest and extradition of an alleged fugitive from the justice of that
State appear to be legal and in proper form, and no question is raised as to
the identity of the person demanded, or testimony offered to contradict the
sworn evidence in the affidavits accompanying such demand that on or about
the date of the alleged crime such person was in the demanding State and
thereafter left it and has been found within the Commonwealth, it is the duty
of the Governor to honor such demand, and he has no legal discretion to refuse
to honor it, even if upon full hearing he should be of opinion that under all
the circumstances the interests of justice would be served by such refusal.

Governor. lu the matter of the demand of the Executive of Con-

September 11. uccticut for the extraditiou of Nathan Berman and Louis

Brooks, Your Excellency has requested my opinion as to

"whether, in view of the fact that the requisition papers have

JAMES M. SWIFT, ATTORNEY-GENERAL. 433

Deen found by me to be in proper form, and of other admitted
'acts," Your Excellency would have "any legal discretion to
leny the requisition of the Governor of Connecticut even if
jpon full hearing" Your Excellency "should be of opinion that
mder all the circumstances the interests of justice would be
served by denying the requisition."

In reply I have the honor to advise Your Excellency that the
luties of the Governor of this Commonwealth with reference to
;he demand upon him from the Executive of another State for
;he extradition of an alleged fugitive from justice, who has been
charged with crime in the demanding State and has been found
vithin this Commonwealth, are prescribed in clear and un-
'quivocal terms in the Constitution of the United States and in
:he Revised Statutes of the United States.

The Constitution of the United States provides, in Article
y, Section II, as follows: —

A person charged in any state with treason, felony, or other crime,
vho shall flee from justice, and be found in another state, shall, on demand
)f the executive authority of the State from which he fled, be delivered
iip to be removed to the state having jurisdiction of the crime.

In discussing this provision of the Constitution, the Supreme
Court of the United States, in Kentucky v. Dennison, 24 How.
[U. S.) 66, said: —

Looking, therefore, to the words of the Constitution — to tlic obvious
Dolicy and necessity of this provision to preserve harmony between States,
ind order and law within their respective borders, and to its early adoption
3y the colonies, and then by the Confederated States, whose mutual
nterest it was to give each other aid and support whenever it was needed
— the conclusion is irresistible, that this compact engrafted in the Con-
I ititution included, and was intended to include, cveiy offence made punish-
ible by the law of the State in which it was committed, and that it gives the
•ight to the Executive authority of the State to demand the fugitive from
;he Executive authority of the State in which he is found; that the right
;iven to "demand" impUes that it is an absolute right; and it follows
^hat there must be a correlative obhgation to deUver, without any rcfer-
fflce to the character of the crime charged, or to the poUcy or laws of
'he State to which the fugitive has fled.

434 OPINIONS OF THE ATTORNEY-GENERAL.

The duty of providing by law the means of carrying this
provision of the Constitution into execution, from the nature
of the duty and the object in view, devolved upon Congress,
and Congress, therefore, passed the act of 1793, February 12,
which, as codified in the Revised Laws of the United States,
section 5278, provides as follows: —

Whenever the executive authority of any State or Territory demands
any person as a fugitive from justice, of the executive authority of any
State or Territory to which such person has fled, and produces a copy of
an indictment found or an affidavit made before a magistrate of any
State or Territory, charging the person demanded with having committed
treason, felony or other crime, certified as authentic by the governor or
chief magistrate of the State or Territory from which the person so charged
has fled, it shaU be the duty of the executive authority of the State or
Territory to which such person has fled to cause him to be arrested and
secured, and to cause notice of the arrest to be given to the executive
authority making such demand, or to the agent of such authority ap-
pointed to receive the fugitive, and to cause the fugitive to be deUvered
to such agent when he shall appear. If no such agent appears within
six months from the time of the arrest, the prisoner may be discharged.
All costs or expenses incurred in the apprehending, securing and trans-
mitting such fugitive to the State or Territory making such demand shall
be paid by such State or Territory.

In discussing the provision of the act of 1793, in the same
case (Kentucky v. Dennison), the Supreme Court of the United
States said : —

The demand being thus made, the act of Congress declares that "it
shall be the duty of the Executive authority of the State" to cause the
fugitive to be arrested and secured, and deUvered to the agent of the
demanding State. The words "it shall be the duty," in ordinary legis-
lation, imply the assertion of the power to command and to coerce obedi-
ence. But looking to the subject-matter of this law, and the relations
which the United States and the several States bear to each other, the
court is of opinion the words "it shall be the duty" were not used as
mandatoiy and compulsory, but as declaratory of the moral duty which
this compact created when Congress had provided the mode of canying
it into execution. The act does not provide any means to compel the
execution of this duty, nor inflict any punishment for neglect or refusal

JAMES M. SWIFT, ATTORNEY-GENERAL. 435

on the part of the Executive of the State; nor is there any clause or pro-
vision in the Constitution which arms the government of the United
States \\ath this power.

And, further, the court said : —

It does not purport to give authority to the State Executive to arrest
and deliver the fugitive, but requires it to be done, and tlie language
of the law implies an absolute obligation which the State authority is
boimd to perfoiin. And when it speaks of the duty of the Governor,
it e\'idently points to the duty imposed by the Constitution in the clause
we are now considering. The performance of this duty, however, is left
to depend on the fidelity of the State Executive to the compact entered
into with the other States when it adopted the Constitution of the United
States, and became a member of the Union. It was so left bj^ the Con-
stitution, and necessarily so left by the act of 1793."

See also McNichols v. Pease, 207 U. S. 100, and cases there
sited.

The provisions of the Constitution of the United States and
oi the Revised Statutes of the United States above quoted are
the supreme law of the land with reference to extradition, and
no statute of this Commonwealth can impose restrictions or
limitations upon the operation of this law of the United States.
No statute of this Commonwealth, therefore, can alter the duty
imposed upon the Executive of this Commonwealth by the Con-
stitution and laws of the United States. For this reason the
provision of the Revised Laws of Massachusetts, chapter 217,
section 12, that the Governor may consider the question of the
3xpediency of complying wdth an application for extradition, is
I i to be construed as giving Your Excellency the right to consider
questions of expediency or discretion only upon applications by
I this Commonw^ealth upon other States, or upon demands for
persons held here in custody to answer for crimes against this
Commonwealth or the United States, or by force of any civil
:)rocess.

This ruling is in harmony with the settled practice in this
Commonwealth and with the opinion of one of my predecessors
n this office, given on Aug. 21, 1902, in which the Governor of

436 OPINIONS OF THE ATTORNEY-GENERAL.

this Commonwealth was advised as follows, in response to a
request for an opinion not only as to the law of the case but
also as to the expediency of the Governor's favorable action
upon the demand of the Executive of North Carolina for the
extradition of a negro who contended that mob violence would
prevent him from having a fair trial in a southern State : —

I am of opinion, however, that my investigation must be confined
to the legal aspects of the case, and that Your Excellency's action must
be controlled by the requirements of the Constitution and statutes of
the United States, and that the Massachusetts statutes cannot be operative
except in so far as is consistent with the federal law. Upon this view,
the right of Your Excellency to consider questions of expediency or discre-
tion exists only upon applications for requisition going from this Common-
wealth, or upon demands for persons held here in custody to answer for
crimes against this Commonwealth, or the United States, or by force
of any civil process. (2 Op. Atty.-Gen. 368.)

The case now^ before Your Excellency is not a case which falls
within the class in which the law may be said to authorize the
exercise of discretion, and the scope of proper inquiry by Your
Excellency as a guide to action is, therefore, narrowly limited
by law. Certain questions of law and of fact are, however,
open to Your Excellency's inquiry. The duty to surrender to
the demanding State the alleged fugitives does not arise unless
the demand is in proper form. Your Excellency, therefore, is
justified in inquiring into the technical sufficiency of the ap-
plication for extradition and the accompanying documents.

In accordance with the long-established practice, upon receipt
of the extradition papers by Your Excellency from the Execu-
tive of Connecticut, they w^ere referred to the Attorney-General j
for an opinion as to whether, as matter of law, the papers were
in proper form and the requisition might lawfully be complied
with. I

In accordance with Your Excellency's request, I examined
the papers in these cases with reference to their technical suffi-
ciency. The law requires that the person demanded shall be
charged with the commission of an offence against the laws of
the demanding State, in these cases Connecticut. It is im-

JAMES M. SWIFT, ATTORNEY-GENERAL. 4'M

I material under the law whether the offence charged is a crime
'under the laws of this Commonwealth. If a crime is substan-
tially charged in the papers, that is sufficient, and it is im-
naterial that the complaint or indictment is inartificially
irawn or is imperfect as a matter of pleading, if it substan-
:ially charges a crime. Pierce v. Creecy, 210 U. S. 387, and
ases cited. In my opinion the papers in these cases satisfied
;hat requirement of the law.

Your Excellency is also justified in satisfying yourself that
:he persons demanded are fugitives from justice. The term
'fugitive from justice" is frequently misunderstood, for the
j 'eason that it is popularly supposed that to be a fugitive from
justice one must have fled to escape detection or avoid prose-
■ution. That, however, is not the legal meaning of the term as
iefined by the United States Supreme Court. In Roberts v.
Reilly, 116 U. S. 80, at page 97, the court said: —

To be a fugitive from justice, in the sense of the act of Congress regu-
ating the subject under consideration, it is not necessary that the party
charged should have left the State in which the crime is alleged to have been
3ommitted, after an indictment found, or for the purpose of avoiding a
prosecution anticipated or begun, but simply that having within a State
committed that which by its laws constitutes a crime, when lie is sought
:o be subjected to its criminal process to answer for his offence he has

eft its jurisdiction and is found within the territory of another.

The motive with which the demanded person left the de-
manding State is, therefore, not material to the decision of the
questions presented for Your Excellency's determination in this
Commonwealth. It appeared by sworn evidence in the papers
accompanying the demand of the Governor of Connecticut that
the persons demanded were in Connecticut at the time when
he crime is alleged to have been committed, and that they sub-
>equently left the State and have been found within this C\nn-
tnonwealth. Nothing appeared to contradict that statement,
ind Your Excellency is, in my opinion, justified in finding that
-equirement of the law satisfied. See Appleyard v. Masfta-
Jhmetts, 203 U. S. 222.

438 OPINIONS OF THE ATTORNEY-GENERAL.

Your Excellency may also satisfy yourself that the persons
demanded are in fact the persons now held in this Common-
wealth under the fugitive warrant. No question was raised as
to the matter of identity; and it appeared by sworn evidence
in the papers that the persons now held under the fugitive
warrant in this Commonwealth are the persons demanded by
the Executive of Connecticut.

The affidavits in the papers appear to have been taken before
magistrates under the law of Connecticut. No question as to
the good faith of the Executive of Connecticut was raised. The
papers were certified as authentic by the Executive of Connecti-
cut; that certification of the papers by that Executive in itself
sufficiently authenticates the complaints or affidavits as being
sworn to before a magistrate, and such certification, under the
ruling of the United States Supreme Court, precludes Your
Excellency from going behind such certificate to the truth of the
facts so stated. In the case of Kentucky v. Dennison, cited
above, the court said: —

It will be observed that the judicial acts which are necessary to au-
thorize the demand are plainly specified in the act of Congress; and the
certificate of the Executive authority is made conclusive as to their verity
when presented to the Executive of the State \vhere the fugitive is found.
He has no right to look behind them, or to question them, or to look
into the character of the crime specified in this judicial proceeding. The
duty which he is to perform is, as we have already said, merely minis-
terial — that is, to cause the party to be arrested and delivered to the
agent or authority of the State where the crime was committed.

The Constitution of the United States, in Article IV., Section
I, provides that —

Full faith and credit shall be given in each state to the pubhc acts,
records, and judicial proceedings of every other state. And the congress
may by general laws prescribe the manner in which such acts, records
and proceedings shall be proved, and the effect thereof.

I have already quoted above the law enacted by Congress
with respect to requisitions; and since the proof of these rec-

JAMES M. SWIFT, ATTORNEY-GENERAL. 439

)rds and judicial proceedings of the State of Connecticut com-
)lies with the requirements of the statutes, that proof is to
)e accepted by Your Excellency as conclusive.

After careful consideration of all these matters, I have re-
)orted to Your Excellency that the demand of the Executive of
^Connecticut was proper in form, and that the requisition might
awfully be complied with.

Since, therefore, the demand of the Executive of Connecticut
ippears to be in proper form, and since the specified facts con-
•erning which Your Excellency may law^fully inquire have been
stablished in the manner prescribed by law, I must advise
i'our Excellency that, under the provisions of the Constitution
md laws of the United States and of this Commonwealth,
YouT Excellency has no legal discretion to deny the requisition
3f the Governor of Connecticut.

In reply to the further inquiry of Your Excellency as to
whether the petitioners have been afforded by me opportunity
for a full hearing at which they could present all proper objec-
tions to the granting of the application, I have the honor to
reply that counsel for the alleged fugitives was, at his request,
afforded an opportunity for a full hearing upon all points which
I am authorized by law to investigate and consider in cases of
demands by other States upon this Commonwealth, and that
representatives of labor organizations interested were present,
and that opportunity was given to every person present to
speak upon the points in issue, or to ask for information. The
questions of the innocence or guilt of the persons involved, or
of the justice or injustice of the prosecution of the charge were
not inquired into, since those questions may be tried only in
Connecticut, the State having jurisdiction of the ofl'ence
charged, and may not lawfully be inquired into by me.

Counsel for both the complainant and the alleged fugitives
were heard at length. Counsel for the alleged fugitives dis-
cussed thoroughly and forcibly the matter of the technical
sufficiency of the papers, and attacked the validity of the
papers on various points. The arguments were taken down
by a stenographer, and all objections were carefully noted.

440 OPINIONS OF THE ATTORNEY-GENERAL.

After careful consideration of all contentions I reached the
conclusion which I have already stated herein, and notified the
ofiices of both counsel for the complainant and for the alleged
fugitives of my decision.

In reply to the further inquiry whether, if Your Excellency
should honor the requisition of the Governor of Connecticut,
"the petitioners will still have ample opportunity of applying
to the courts of this Commonwealth for such protection as they
may be legally entitled to under the laws of Massachusetts," I
advise you that Revised Laws of Massachusetts, chapter 217,
section 14, provides that —

A person who is arrested upon such a warrant shaU not be delivered to
such agent of a state or territory until he has been notified of the de-
mand for his surrender and has had an opportunity to apply for a WTit
of habeas corpus, if he claims such right of the officer who makes the
arrest.

If, therefore. Your Excellency honors the requisition by issu-
ing the executive warrant, the alleged fugitives, under this
provision of the statutes, are entitled to be given the oppor-
tunity to petition for a writ of habeas corpus, if they claim the
right to so apply. In such a proceeding the lawfulness of the
extradition would be passed upon by the court, but the warrant
of Your Excellency would, according to the language of the
Supreme Court in Davis' Case, 122 Mass. 324, be held to be
"prima facie evidence, at least, that all necessary legal pre-
requisites have been complied with, and, if the previous pro-
ceedings appear to be regular, is conclusive evidence of the
right to remove him (the prisoner) to the state from which he
fled."

JAMES M. SWIFT, ATTORNEY-GENERAL. 441

Governor — Appropriations for State Commissions, De-
partments OR Institutions — Employment of Persons
TO investigate Statements and Estimates — Contract
— Compensation.

Jnder the provisions of St. 1911, c. 82, that "the governor is hereby authorized to
employ such persons as he may deem proper to make such investigation of
any of the commissions, departments or institutions of the commonwealth
as he believes is necessary to enable him to carry out the provisions of chapter
two hundred and twenty of the acts of the year nineteen hundred and ten,"
and that for such purpose he may "expend such sums out of the amount
authorized by chapter five hundred and forty-nine of the acts of the year
nineteen hundred and eight as may be approved by the governor and council,"
the governor, acting independently of the council, has no power to determine,
by contract or otherwise, the rate of compensation to be paid to the persons
employed by him to make the required investigations.

5ince the purpose of St. 1910, c. 220, providing in substance that statements or
estimates for appropriations for State commissions, departments or institu-
tions shall annually be submitted to the Governor and Council, and trans-
mitted by the Governor to the Legislature, with such recommendations as
he may deem necessary, the Governor and Council may not legally allow
persons employed under authority of St. 1911, c. 82, above cited, compensation
for investigations or for reports thereon made since the prorogation of the
General Court for the year in which they were employed, nor compensation
for time spent in appearing before the joint committee on ways and means
of the General Court to explain their reports or to be questioned in regard to
them, or for time spent in explaining their charges for services to the council
or to any committee thereof.

On behalf of the committee on finance, accounts and war- To the

Executive

rants of the Council you request my opinion upon the following secretary.

lUeStions:— September.'?.

1. Has the Governor, acting independently of the Council, the power
;o determine conclusively, by contract or otherwise, the rate of com-
pensation to be paid to the persons employed by him under the provi-
dons of chapter 82 of the Acts of the year 1911?

2. Can the Governor and Council legally allow such persons compen-
iation, to be paid from the treasury of the Commonwealth, 1st, for time
spent in appearing before the joint committee on ways and means of
:he General Court to explain their reports or be questioned in regard
:o them; 2d, for time spent in explaining their charges for services to
.he Council or its committees; 3d, for any services performed since the
prorogation of the General Court of the present year; and if so, for \\liat
services ?

442 OPINIONS OF THE ATTORNEY-GENERAL.

St. 1911, c. 82, is as follows: —

The governor is hereby authorized to employ such persons as he may
deem proper to make such investigation of any of the commissions, de-
partments or institutions of the commonwealth as he beUeves is necessary
to enable him to carry out the provisions of chapter two hundred and
twenty of the acts of the year nineteen hundred and ten. Such persons
shall report in writing to the governor, and copies of every report shall,
at the same time, be sent by said persons to the governor's coimcil and
to the joint committee on waj^s and means of the general court. For
this purpose the governor may expend such sums out of the amount
authorized by chapter five hundred and forty-nine of the acts of the year
nineteen hundred and eight as may be approved by the governor and
council.

In my opinion the first question must be answered in the
negative. The act provides specifically that "the governor
may expend such sums ... as may be approved by the gov-
ernor and council." While the person may be designated and
employed by the Governor, the compensation is to be fixed by
the Governor and Council.

The second question concerns the basis for the allowance of
compensation. It requires consideration of the duties and
powers provided by law, as set forth in St. 1910, c. 220, and St.
1911, c. 82.

The effect of St. 1910, c. 220, has been judicially determined
by the Supreme Judicial Court in an Opinion of the Justices to
the Senate, dated April 7, 1911, which in part is as follows: —

The St. of 1910, c. 220, has made but a veiy small change in the law
of the Commonwealth. . . .

The only new provision in this particular is the requirement that it
(estimates and statements) shall be submitted " to the governor and
council for examination, and the governor shall transmit the same to
the General Court, with such recommendations, if any, as he may deem
proper." . . . Under this statute, after the document has been printed,
it is to be foimally submitted to the governor and council for examination,
as well as distributed to the members of the General Com-t, while under
the foraier statute the governor was left to obtain a copy as he might.
Under the present statute he is to transmit it to the General Court, so
that they may know that he has had an opportunity to examine it, and

JAMES M. SWIFT, ATTORNEY-GENERAL. 443

le may make recommendations or not, as he chooses. . . . The only
'naterial effect of this statute is to give a legislative invitation to the
; ;overnor to examine the documents prepared bj^ the auditor and to make
ecommendations upon the subjects contained in them if he chooses, and
ilso to give him an implied assurance that his recommendations as to the
.mount of the appropriations will receive respectful consideration.

The effect of both statutes was passed upon in an opinion of
he Attorney-General to the Treasurer and Receiver General,
lated May 11, 1911, which in part is as follows: —

The duty and power of the Governor in the premises, therefore, being
.onfined to the transmission of the statements of estimates for appro-
] )riations submitted to the Auditor bj'' the var'ous State officers, boards
,nd commissions and transmitted by the Auditor to the Governor, to be
iccompanied by a recommendation or not. as he sees fit, it follows that
lis power to investigate any officer, department or institution must be
)redicated upon the existence of a statement of proposed expenditures
md of other matters required by St. 1910, c. 220, which may be trans-
nitted by him to the Legislature. The emplojonent of agents, investiga-
ors and "experts" is only such as the Governor believes is necessary
;o enable him to carry out the provisions of said St. 1910, c. 220. If there
ire no such estimates for the current year before him for transmission,
md upon which before transmission he seeks further information, it
'ollows that there is no authority or occasion for any investigation under
5aid St. 1910, c. 220, or St. 1911, c. 82.

Answering, first, the third subdivision of the second question
submitted, the Governor and Council may not legally allow per-
sons employed under authority of St. 1911, c. 82, compensation
'or any investigation or report thereon made since the proroga-
:ion of the General Court.

As to the other subdivisions of the second question submitted,
>.t is to be observed that the services for which payment may be
imade under St. 1911, c. 82, are the making of investigations and
:he making of reports in writing upon such investigations.
There is no express provision for payment of compensation for
:he explanation of such reports to the ways and means com-
mittee, nor is there any implication that such reports shall
-equire oral explanation. In my opinion it cannot fairly be
mplied that the persons employed under said statute were

444 OPINIONS OF THE ATTORNEY-GENEKAL.

to have compensation for oral explanations of their written re-
ports. The examination of such persons before the ways and
means committee upon the subjects of their reports appears
to be of the same kind as the examination of any persons ap-
pearing before such committee as witnesses. Their right to
compensation would be the right which witnesses ordinarily
have to compensation for appearance before such committees.
See R. L., c. 6, § 51; R. L., c. 204, § 21.

As to the second subdivision of the second question sub-
mitted, I am of opinion that the explanation to the Council of
charges for services is not a service performed for the Common-
wealth but by the persons interested, in their own behalf, for
w^hich they are not entitled to extra compensation. So far as
appears in your communication they appeared voluntarily be-
fore the Council. If, however, they do not so appear, but are
summoned, their standing is only that of witnesses. In that
case they would be entitled only to the witness fees provided
by law. See R. L., c. 175, § 7; R. L., c. 204, § 2.

Constitutional Law — Public Office — Truant Officer —

Woman.

Under existing statutes a woman may not be appointed to or exercise the duties
of the office of truant officer, as established by R. L., c. 46, § 12, although there
appears to be no constitutional objection thereto.

crvii^Servic '^^^ Clvil Scrvicc Commission desires my opinion upon the

^°™T9n'°'^' question whether or not a woman may be appointed to the
September 28. position of truaut officcr, an office which is included within
the classified civil service by Civil Service Rule 7, clause 19.

Truant officers, under the provisions of section 12 of chapter
46 of the Revised Laws, are appointed by the school committees
of the several cities and towns, and the duties to be performed
by such officers are to be found in section 13 of the same chap-
ter, which is as follows: —

Truant officers shall inquire into aU cases aiising under the provisions
of sections one and six of chapter forty-four and sections three, four and

JAMES M. SA^^FT, ATTORNEY-GENERAL. 44'

\-c of this chapter, and may make complaints and serve legal processes
;sued mider the provisions of this chapter. They shall have the over-
.ght of children placed on probation under the provisions of section
?ven. A truant officer may apprehend and take to school, -wathout a
•arrant, any truant or absentee found wandering about in the streets
r pubUc places thereof. (See also R. L., c. 44, § 1, and St. 1909, c. 514,
§ 62-65).

From a consideration of the provisions of law above cited,
nd of the earlier statutes upon the same subject (see St. 1873,
. 262; St. 1874, c. 233, § 2; St. 1894, c. 498, § 20, and St. 1898,
. 496, §§ 33 and 36), it appears that a truant officer is au-
horized to serve legal process in all cases relating to truancy,
0 arrest truants under certain circumstances without a war-
ant, and to enter into factories, workshops or mercantile estab-
ishments for the purpose of obtaining information with re-
ation to the employment of minors. This, in my opinion,
constitutes a truant officer a public officer within the definition
aid down in Attorney-General v. Drohan, 169 Mass. 534, which
s as follows: —

Without attempting an exliaustive definition of what constitutes a

DubUc office, we think that it is one whose duties are in their nature public,

ihat is, involving in their performance the exercise of some portion of the

j ;overeign power, whether great or small, and in whose proper perfonnance

I ill citizens, irrespective of party, are interested, either as members of the

' entire body politic, or of some dulj^ estabUshed division of it.

At common law a woman could not perform the duties of a
Dublic officer. Thus, in Robinson's Case, 131 Mass. 376, at
page 378, the court, after discussing several offices, concludes: —

And we are not aware of any pubhc office, the duties of which must
be discharged by the incumbent in person, that a woman was adjudged
to be competent to hold, without express authority of statute, except
that of overseer of the poor, a local office of an administrative character,
in no way connected with judicial proceedings. (Page 379.)

In that case it was held that a woman could not, without
statutory authority, be examined for admission as an attorney
and counsellor of the Supreme Judicial Court.

446 OPINIONS OF THE ATTORNEY-GENERAL.

There are numerous opinions of the justices relative to the
incumbency by women of positions and offices in the pubhc
service. Thus, in 107 Mass. 604, the justices held that a
woman could not constitutionally hold the office of justice of
the peace. In 115 Mass. 602, the justices, in reply to the ques-
tion, "Under the Constitution of this Commonwealth can a
woman be a member of the school committee? " limiting them-
selves to the effect of the Constitution upon the capacity of a
woman to hold such office, and without interpreting existing
statutes, held that the question should be answered in the
affirmative. It is to be observed, however, that, as in the case
of attorneys at law (see St. 1882, c. 139), a special act was
passed authorizing women to act as members of a school com-
mittee. See St. 1874, c. 389. In 150 Mass., at pages 586, 591,
the justices declared that —

The clause of the Constitution which provides for the appointment
of notaries public, interpreted with reference to the history and nature
of the office and the long-continued and constant practice of the govern-
ment here and the usage_ elsewhere, cannot be considered as authorizing
the Governor, by and with the advice and consent of the Council, to
appoint women to be notaries pubhc.

In 165 Mass. 599, the justices rendered an opinion that an
act providing for the appointment of women to be notaries
public would be unconstitutional. In an Opinion of the Justices
in 136 Mass. 578, it was held that under St. 1879, c. 291, § 2,
authorizing the Governor, with the advice and consent of the
Council, to appoint nine persons as a State Board of Health,
Lunacy and Charity, he might appoint a woman as a member of
such board, but this opinion was based upon what the justices
declared to be the established policy of the Legislature, evi-
denced by numerous statutes, that women might serve upon
such boards. See St. 1868, c. 153, § 1; St. 1870, c. 370, § 10;
St. 1873, c. 166; St. 1877, c. 195, § 1.

The principle upon which these opinions are based constrains
me to hold that in the present case, although the Constitution
would not prevent a woman from holding the office of truant

JAMES M. SWIFT, ATTORNEY-GENERAL. 447

)fEcer, such office is a public office requiring the exercise of
governmental functions; and that unless expressly authorized by
itatute the incumbent should not be a woman. This view is
onfirmed by a consideration of the following cases in which
;pecial legislation for that purpose was enacted: Overseers of
he Poor, St. 1886, c. 150; Commissioners of Deeds and similar
luties, St. 1883, c. 252; Assistant Probation Officers in the
Vlunicipal Court of the City of Boston, St. 1897, c. 266. See,
urther, St. 1907, c. 261.

The following provisions, among others, authorizing the ap-
)ointment of women to public offices, are found in the Revised
L,aws : —

C. 165, § 4, which provides that the assistant clerk for the
county of Hampden may be a woman.

C. 25, § 62; which provides that an assistant town clerk may
)e a woman,

C. 20, § 19, which provides that in counties in which there is
QO assistant clerk of courts the county commissioners may ap-
point a clerk yro tempore, who may be a woman.

C. 76, § 24, which provides that there shall be a board of
registration in dentistry, consisting of five persons, male or fe-
male.

C. 222, § 1, which provides that there shall be a board of
prison commissioners, consisting of five persons, two of whom
shall be women.

C. 22, § 8, which provides that registers of deeds may, sub-
ject to the approval of the Superior Court, appoint an assistant
register of deeds, who may be a woman.

C. 164, § 17, which provides that the assistant registers of
probate in the counties of Bristol, Hampden and Hampshire .
may be women.

C. 108, § 1, which provides that the inspection department
of the district police shall consist of the chief of said force,
thirty-three male and two female members.

I am therefore of opinion that, under existing statutes, a
woman may not be appointed to or exercise the duties of the
office of truant officer.

448

OPINIONS OF THE ATTORNEY-GENERAL.

To the
State Board
of Health.

1911
October 3.

Water Supply — Great Ponds — State Board of Health
— Control and Regulation — Public Rights — Cities
AND Towns.

Under the provisions of R. L., c. 75, §§ 112 and 113, as amended by St. 1907, c. 467,
vesting in the State Board of Health the "oversight and care of all inland
waters and of all streams and ponds used by any city, town or public institu-
tion ... as sources of water supply," and providing that it may regulate
and control the exercise of the public rights of boating, fishing, skating or
taking ice, and may delegate the power of granting or withholding permits
to the local authorities, "and upon complaint of any person interested . . .
shall investigate the granting or withholding of any such permit and make
such orders relative thereto as it may deem necessary for the protection of
the public health," a city or town may prohibit the public right of boating
or fishing upon a great pond used as a source of water supply only in cases
where such prohibition is necessarily involved in the use of such great pond
as a source of water supply, and where complaint is made with respect to the
granting or withholding of a permit by the local authorities, if such board
considers that the issuance of the permit so withheld would not endanger
the purity of the source of water supply, it may make such order in the premises
as it deems necessary for the protection of the public health, and may doubt-
less require the issuance of the permit.

Ill a letter dated September 30 you state that by vote of the
State Board of Health you were authorized to submit certain
questions for my determination. These questions are as fol-
lows : —

Query 1 . — Can any town or city absolutely prevent fishing and boating
upon a natural great pond, even though the town or city claims to own in
fee the surrounding property of the great pond which has been taken
for a water supply ?

Query 2. — Can the State Board of Health issue a permit to boat and
fish on a great pond, when the properly delegated authorities of a town
or city refuse to issue a permit to fish and boat to an individual on a great
pond wliich has been taken for a water supply by a town or city ?

The facts upon which your questions arise appear to be as
follows: in 1909, the town of Concord, acting under authority
of St. 1884, c. 201, § 2, took the water from a certain pond,
which I assume to be a great pond, for the purposes of water
supply, and thereafter petitioned the State Board of Health to
make rules and regulations to prevent the pollution and to se-

JAMES M. SWIFT, ATTORNEY-GENERAL. 449

ure the sanitary protection of the waters of such pond, under
he provisions of R. L., c. 75, § 113, as amended by St. 1907,
. 4G7, § 1, which provides that —

Said board may cause examinations of such waters to be made to ascer-
lin their purity or fitness for domestic use or their liabilitj' to impair
le interests of the public or of persons lawfully using them or to imperil
le pubhc health. It may make rules and regulations to prevent the
Dilution and to secure the sanitaiy protection, of all such waters as are
sed as som'ces of water supply. Said board may delegate the granting
ad withholding of any permit required by such rules or regulations to
;ate boards and commissions and to selectmen in towns and to boards
I health, water boards and water commissioners in cities and towns, to
e exercised by such selectmen, boards and commissions, subject to such
icommendation and direction as shall be given from time to time by
16 state board of health; and upon complaint of any person interested
lid board shall investigate the granting or witliholding of any such
ermit and make such orders relative thereto as it may deem necessary
)r the protection of the public health.

On April 7, 1910, the State Board of Health duly made cer-
ain rules and regulations, containing, among others, the regula-
ion that —

No person shall bathe in, and no person shall, unless pennittcd by
written pennit of the board of water and sewer commissioners of the
awn of Concord, fish in, or send, drive or put any animal mto, Nagog
'end, so called. ... No person other than a member, officer, agent or
mployee of said board of water and sewer commissioners, or public
fficer whose duty may so require, shall, unless so pemiitted by a wTitten
lermit of said board, enter or go, in any boat, skiff, raft or other contriv-
nce, in or upon the water of said Nagog Pond, nor shall enter or go upon,
r drive any animal upon, the ice of said pond.

Acting under this authority the board of water and sewer
ommissioners of the town of Concord have refused to permit
(Gating and fishing thereon, and one of the persons so refused
las petitioned the board to act, under the provisions of R. L.,
■• 75, § 113, as amended by St. 1907, c. 467, § 1, providing that
ipon complaint of any person interested the State Board of
health "shall investigate the granting or withholding: of any

450 OPINIONS OF THE ATTORNEY-GENEKAL.

such permit and make such orders relative thereto as it may
deem necessary for the protection of the pubHc health."

The questions which you submit are not in terms limited to
the specific facts above stated, which appear from the papers
accompanying your communication, but I assume that they
were framed with those facts in view, to determine the duty of
your board in the premises.

It is well established that the appropriation of the waters,
or any part thereof, of a great pond by a town for purposes of
water supply under legislative authority, does not take away the
rights of the public in such pond "excepting so far as they are
necessarily lost in the exercise of a right conferred upon the
town to use the waters of the pond as a source of water sup-
ply." 2 Op. Atty.-Gen. 239, 240; Rockport v. Webster, 174
Mass. 385. It follows, therefore, that unless the public use
of a great pond for boating or fishing is so far inconsistent
with its use as a source of water supply as to be necessarily
lost in the exercise of the right acquired by a town, such
town would have no right to absolutely prohibit boating or
fishing.

Under the provisions of R. L., c. 75, § 113, as amended by
St. 1907, c. 467, § 1, it is to be observed that the State Board
of Health is vested with authority to make rules and regula-
tions "to prevent the pollution and to secure the sanitary pro-
tection" of all waters which are used as sources of water sup-
ply, and, acting under this provision, may require that persons
who desire to exercise the public right of boating or fishing shall
secure permits either from the Board itself or from the local
board to whom the authority to issue such permits has been
delegated, or may forbid the exercise of such public rights al-
together. See Sprague v. Minon, 195 Mass. 581.

Replying specifically to your first inquiry, therefore, I am of
opinion that a city or town is authorized to prohibit the public
right of fishing or boating upon a great pond used as a source
of water supply only in cases where such prohibition is neces-
sarily involved in the use of such great pond as a source of
water supply.

JAMES M. SWIFT, ATTORNEY-GENERAL. 451

Your second inquiry calls for my opinion upon the powers of
he State Board of Health acting under the provisions of R. L.,
. 75, § 113, as amended by St. 1907, c. 467, § 1, already
ited.

Under these provisions of law the Board may make rules and
emulations to protect sources of water supply, and may pro-
libit the exercise of the public rights of boating and fishing in
>r upon such sources of water supply, except to such persons
,s may receive a permit therefor. The authority to issue such
lermits may be delegated, among others, to selectmen in towns
nd to boards of health, water boards or water commissioners in
ities and towns, to be exercised under the direction of the
>tate Board of Health. Where complaint is made in any case
\ith respect to the granting or withholding of such permit by
he Board to whom the issuance thereof has been delegated,
he Board shall investigate the matter and make such orders
•elative thereto as may be deemed necessary for the protection
)f the public health. If, upon due investigation, the Board in
iny case determines that a permit withheld by the local au-
horities may be issued without endangering the purity of the
•ources of water supply, they may make such order in the
)remises as they deem necessarj^ for the protection of the pub-
ic health, and such order may doubtless require the issuance
)f the permit. In such a case, therefore, the State Board of
health may issue or cause to be issued a permit to boat and
ish, notwithstanding that the properly delegated authorities
)f a city or town have previously refused to do so, provided
:hat such issuance is not inconsistent with the proper protection
)f the public health.

452

OPINIONS OF THE ATTORNEY-GENERAL.

Lyman and Industrial Schools — Trustees — Lyman
Fund — Income — Purchase of Land — Title.

Under the provisions of St. 1911, c. 566, § 3, that the trustees of the Massachusetts
Training Schools "succeed to the trusts, right, powers and duties" of the
trustees of the Lyman and Industrial Schools, and of R. L., c. 86, § 1, that
the board of trustees of the Lyman and Industrial Schools should be "a
corporation for the purpose of taking, holding and investing in trust for the
commonwealth any grant, devise, gift or bequest made for the use of any
institution of which they are trustees," the trustees of the Massachusetts
Training Schools may purchase, from the accumulated income from the
Lyman Fund and Lyman Trust Fund, so called, land for the use of the
Lyman School.

The title to the land so purchased should be taken in the name of the trustees, in
trust for the Commonwealth.

Without express or impUed authority from the Legislature, title to land cannot
be taken in the name of the Commonwealth by any public officer or
board.

In behalf of the trustees of the Massachusetts Training
Schools you have requested my opinion upon certain questions

To the Trus-
tees of the
Massachusetts
Training

' '^ 1911" hereinafter quoted.

October 18. -.7- n , .• • p 11

lour nrst question is as follows

Have the trustees of the Massachusetts Training Schools (see Acts
1911, c. 566), the successors to the trustees of the Lyman School (as pro-
vided in R. L., c. 86), the right to purchase land for the use of the Lyman
School from the accumulated income from the Lyman Fund and Lyman
Trust Fund, so called ?

In replying to this inquiry I assume that the language of the
gift of the Lyman Fund and the Lyman Trust Fund, so called,
is broad enough to authorize the proposed expenditure of
accumulated income, and that the only point upon which you
desire my advice is as to the statutory authority of the trustees.
As to the statutory authority of the trustees, my opinion is
that they have the right to purchase land for the use of the
Lyman School from the accumulated income of these funds.
I base this opinion upon the statutory provision (St. 1911,
c. 566, § 3) that the trustees of the Massachusetts Training
Schools "succeed to the trusts, rights, powers and duties" of
the trustees of the Lyman and Industrial Schools; and upon the

JAMES M. SWIFT, ATTORNEY-GENERAL. 453

tatutory provision (R. L., c. 86, § 1) that the board of trustees
I if the Lyman and Industrial Schools was "a corporation for
he purpose of taking, holding and investing in trust for the
ommonwealth any grant, devise, gift or bequest made for the
ise of any institution of which they are trustees." If the
rustees of the Massachusetts Training Schools have the right
o expend the accumulated income in question for the use of
he Lyman School, and if they have the right to receive grants
■f land, it follows that they may expend such accumulated in-
ome in the purchase of land.
Your second question is as follows: —

If they have this right, how should the title be taken, whether in the
.ame of the trustees, or directly in the name of the Commonwealth ?

In my opinion title should be taken in the name of the trus-
ees, in trust for the Commonwealth.
Your third question is as follows: —

Can the Commonwealth take title without legislative sanction, it
leing in the nature of a gift to the Commonwealth, if purchased by income
rem accmnulated funds, and without appropriation tlierefor?

Title to land cannot be taken in the name of the Common-
vealth by any board or officer who has not express or implied
luthority from the Legislature to do so. As I have advised
/■Qu in answer to your first inquiry, I am of opinion that there
s statutory authority for the trustees of the ^Massachusetts
Fraining Schools to take title in the name of the trustees, in
:rust for the Commonwealth, to land purchased with accumu-
ated income of trust funds.

454

OPINIONS OF THE ATTORNEY-GENERAL.

To the Bank
Commissioner.

1911
November 3.

Trust Company — Savings Department — Board of In-
vestment — Member as Endorser on Note for Money
Loaned by Corporation.

Under the provisions of St. 1908, c. 520, § 2, that all loans or investments of deposits
in the savings department of a trust company "shall be made in accordance
with statutes governing the investment of deposits in savings banks," and
of St. 1908, c. 590, § 44, that no member of a board of investment of a savings
bank shall borrow or use any portion of the funds of such bank or "be surety
for loans to others or, directly or indirectly ... be an obligor for money
borrowed of the corporation," a member of the board of investment of a
trust company cannot legally be an endorser upon a personal note for money
loaned by such company to any person.

You have requested my opinion "as to whether a member
of the board of investment of a trust company can be an en-
dorser on a personal note for money loaned by said trust
company to a borrower without violating the provisions of sec-
tion 2 of chapter 520, Acts of 1908, as restricted by section 44
of chapter 590, Acts of 1908."

Section 1 of chapter 520 of Statutes of 1908 is as fol-
lows: —

Every trust company soliciting or receiving deposits (a) which may
be withdrawn only on presentation of the , pass-book or other similar
form of receipt which permits successive deposits or withdrawals to be
entered thereon; or (b) which at the option of the trust company may be
withdrawn only at the expiration of a stated period after notice of inten-
tion to withdraw has been given; or (c) in any other waj' which might
lead the public to believe that such deposits are received or invested under
the same conditions or in the same manner as deposits in savings banks;
shall have a savings department in which all business relating to such
deposits shall be transacted.

Section 2 provides that —

All such deposits shall be special deposits and shall be placed in said
savings department, and all loans or investments thereof shall be made
in accordance with the statutes governing the investment of deposits in
savings banks. The duties of the board of investment relative to the
investment of such deposits shall be performed by a board or committee
appointed by the board of directors of such corporation.

JAMES M. SWIFT, ATTORNEY-GENERAL. 455

Section 44 of chapter 590 of Statutes of 1908 provides that —

No president, treasurer, member of a board of investment or officer
' )f such corporation charged with the duty of investing its funds shall
)orrow or use any portion thereof, be surety for loans to others or, directly
)r indirectly, whether acting indiiidually or as trustee holding property
n trust for another person, be an obhgor for money borrowed of the
corporation; . . .

It was the obvious purpose of the Legislature, in St. 1908,
^ 520, § 2, to make the investment or loan of deposits in the
savings department of a trust company subject to the same
regulations and restrictions that are applicable to the invest-
ment or loan of deposits in savings banks, and one of these re-
strictions is that no member of a board of investment or in-
vestment committee shall borrow or use any of such deposits,
or be surety for loans made to others than himself. It follows,
therefore, in my opinion, that a member of a board of invest-
ment of a trust company cannot legally be an endorser on a
personal note for money loaned by such company to any
person.

Labor Laws — Mercantile or Manufacturing Establish-
ment— Restaurant — Establishment maintaining Lunch
Room and Food Salesroom.

An establishment which maintains a lunch room, and also a food salesroom from
which supplies are sent to other lunch rooms maintained by the same establish-
ment at other places and lunches are sent to be served at certain high, Latin
and normal schools, the receipts of such food salesroom being a little over
one eighth of the total receipts, is not, by reason of the maintenance of such
food salesroom, excluded from the definition of "mercantile establishment"
in St. 1909, c. 514, § 17, that such establishment "shall mean any premises
used for the purposes of trade in the purchase or sale of any goods or merchan-
dise, and any premises used for the purposes of a restaurant or for publicly
providing and serving meals," and is not, therefore, a "manufacturing
establishment," defined by the same section as "any premises, room or place
used for the purpose of making, altering, repairing, ornamenting, finishing
or adapting for sale any article or part of an article."

You have requested my opinion as to whether the New Eng- '^°.^J{^^f ^^^
land Kitchen, so called, maintained by the Women's Educa- Di«t;>>7°'i<^«-
tional and Industrial Union of Boston, is a manufacturing or a no^2!!^'°-

456 OPINIONS OF THE ATTORNEY-GENERAL.

mercantile establishment within the meaning of those terms
as used in the laws relating to labor. The facts, I understand,
are these: At the New England Kitchen, which is situated on
Charles Street, there is a lunch room and a food salesroom.
From this place is sent the food which the Union serves for
lunches at the high, Latin and normal schools. From it also
are sent supplies to the place of business of the Union on Boyl-
ston Street, where are maintained three lunch rooms, with a
common kitchen, and a food salesroom. Receipts from sales of
food at the food salesroom of the New England Kitchen con-
stitute about one ninth of the total receipts of the New Eng-
land Kitchen, and a little over one-eighth of such total receipts
exclusive of supplies sent to Boylston Street. You state that
"it is to be noted that the establishment in question [by which
I infer that you refer to the New England Kitchen and not to
the Union's place of business on Boylston Street] may be con-
sidered principally as a restaurant; also that it is a general cus-
tom in restaurants to sell such foods as are served therein to
persons desiring to use the same off the premises." St. 1909,
c. 514, § 17, contains the following definitions of "manufactur-
ing establishments" and "mercantile estabhshments" as those
terms are used in the laws relative i^o the employment of
labor : —

"Manufacturing establishments" shall mean any premises, room or
place used for the purpose of making, altering, repairing, ornamenting,
finishing or adapting for sale any article or part of an article.

"Mercantile establishments" shal mean any premises used for the
purposes of trade in the purchase or sale of any goods or merchandise,
and any premises used for the purposes of a restaurant or for publicly
providing and ser\ang meals.

The labor laws contain distinct provisions applicable to
"manufacturing establishments" and to "mercantile establish-
ments." See, for example, St. 1909, c. 514, § 47, and § 48, as
amended by St. 1911, c. 484, § 1. The definitions must there-
fore be regarded as mutually exclusive. If an establishment is
within one of the definitions it is not within the other. The

JAMES M. SWIFT, ATTORNEY-GENERAL. 457

New England Kitchen is, on your statement, to be "considered
principally as a restaurant." A restaurant is in express terms
within the definition of "mercantile establishments." It is,
therefore, immaterial that but for such express inclusion it
might be considered as within the definition of "manufacturing
establishments." I infer that your inquiry is as to whether
the fact that the New England Kitchen maintains a food sales-
room excludes it from the definition. As you have stated, the
sale at a restaurant of food to be used off the premises is a
usual practice, and one which must be taken to have been in
the mind of the Legislature when it defined "mercantile estab-
hshments" as including restaurants. The receipts from sales at
the food salesroom of the New England Kitchen are a com-
paratively small part of the total receipts of the establishment;
in other words, the food salesroom is incidental to the lunch
room, or restaurant. Without attempting to state precisely
where the line is to be drawn, I advise you that in my opinion,
from the facts stated, the New England Kitchen is not by
reason of its maintaining a food salesroom excluded from the
definition of "mercantile establishments." It is a mercantile
rather than a manufacturing establishment.

Election — Death of Candidate on Morning of Election
Day — Failure to elect — Special Election — Gov-
ernor.

Where a candidate for the office of clerk of the courts died on the morning of the
day of the election, but as the fact of his death was not generally known and
his name was upon the official ballot the highest number of votes was cast
for him, there was a failure to elect, and the Governor should cause a precept
to be issued for the election of such officer in accordance with the provisions
of St. 1907, c. 560, § 306.

You have requested my opinion as to whether William C. q°J^^^ot.
Kevin was elected clerk of the courts for the county of Dukes November 27.
County at the last State election and as to whether a new elec-
tion will be necessary.

458 OPINIONS OF THE ATTORNEY-GENERAL.

It appears that the name of Samuel Keniston was upon the
official ballot as a candidate for such office and that the highest
number of votes was cast for him. It further appears that said
Keniston died on the morning of election day before the open-
ing of the polls. It does not appear to what extent the fact of
the death of said Keniston was known to the voters of the
county, but it is not claimed by the said Nevin that such fact
was generally known.

Upon these facts I am of opinion that said Nevin was not
elected clerk of the courts for said county, but that there was a
failure to elect. This view is supported by authority. Hoices
V. Perry, 92 Ky. 260; State v. Walsh, 7 Mo. App. 142; State v.
Speidel, 62 Ohio St. 156. It is an application of the principle
that where the person receiving the highest number of votes is
ineligible there is a failure to elect, and the person receiving the
next highest number is not elected. This rule seems to be com-
mon to England and America. In England, however, and in
one or more States of the United States it seems that this rule
does not apply where the voters at the time of the election have
notice of the ineligibility. The weight of authority in America
seems to be, however, that the fact of notice is immaterial.
Bowker et ah, Petitioners; Loring and Russell, Election Cases,
282, and note; Cooley, Const. Lim. (7th ed.) 931, 932; Dillon,
Municipal Corporations (5th ed.), § 373, and note. I am
aware of no authority which, in the absence of evidence that
the fact of the death of said Keniston was generally known to
the voters of Dukes County at the time of the election, would
hold said Nevin to have been elected clerk of the courts. Ac-
cording to the weight of authority in this country he would not
have been elected even if it appeared that the fact of the death
of said Keniston was generally known.

Since there has been a failure to choose a clerk of the courts,
St. 1907, c, 560, § 306, becomes applicable. This section pro-
vides that the Governor shall cause a precept to be issued for
the election of such officer.

JAMES M. SWIFT, ATTORNEY-GENERAL. 459

City or Town — Tuberculosis Hospital — Maintenance
OF Ward or Beds in Priyate Hospital or General
City or Town Hospital — Subsidy from Common-
wealth.

The maintenance by a city or town of a tuberculosis ward or bed or beds in a private
tuberculosis hospital or in a general city or town hospital does not fulfil the
requirements of St. 1911, c. 597, § 1, which provides that "every city or town
which establishes and maintains a tuberculosis hospital shall be entitled to
receive from the commonwealth a subsidy of five dollars per week for each
patient who is unable to pay for his support, or whose kindred bound by law
to maintain him are unable to pay for the same."

You have submitted to me three inquiries relative to the To the

. Trustees of

construction of St. 1911, c. 597, entitled "An Act to encourasre Hospitals for

" Consumptives.

and promote the building and use of tuberculosis hospitals in December 4
cities and towns." This statute, in section 1, provides that —

Every city or town vdiich establishes and maintains a tuberculosis
hospital shal be entitled to receive from the commonwealth a subsidy
of five dollars per week for each patient who is unable to pay for his sup-
port, or whose kindred bound by law to maintain him arc unable to pay
for the same, but the city or town shall not become entitled to his subsidy
unless, upon examination authorized by the trustees of hospitals for con-
sumptives, the sputum of such patients be found to contain bacilli of
tuberculosis, and unless the hospital be subject to the inspection of, and
be approved by, said trustees.

Your inquiries are substantially whether or not a city or
town is entitled to the subsidy above provided for (1) if it
maintains in a private tuberculosis hospital a tuberculosis ward
or bed or beds; (2) if it maintains a tuberculosis ward in a
general city or town hospital, or a bed or beds for tuberculous
patients in such hospitals; and (3) if it maintains a tuberculosis
ward in a private general hospital or a bed or beds for tuber-
culous patients in such hospital.

I am of opinion that all three of these inquiries should be
answered in the negative. The purpose of the statute is ob-
viously as stated in the title, "to encourage and promote the
building and use of tuberculosis hospitals; " or, in other words,
to furnish an inducement to cities and towns to erect and

460

OPINIONS OF THE ATTORNEY-GENERAL.

maintain hospitals for persons afflicted with tuberculosis where
such patients may be cared for and treated. It follows, there-
fore, that cities and towns which maintain wards or beds in
private hospitals or in general city hospitals are not entitled
to the subsidy provided for in the section above quoted.

To the
Treasurer
and Receiver-
General.
1911
December 4.

Commonwealth — Employees — Retirement — Massachu-
setts Agricultural College — Teachers and Em-
ployees.

The Massachusetts Agricultural College is a public charitable corporation organized
for educational purposes, and is not, strictly speaking, a State institution
and its teachers and employees are not eligible to participate in the retirement
system established by St. 1911, c. 532, for employees of the Commonwealth.

You have requested my opinion as to whether teachers and
employees of the Massachusetts Agricultural College are eligible
for participation in the retirement system for the employees of
the Commonwealth, established by chapter 532 of the acts of
the present year. Only employees of the Commonwealth are
eligible for such participation. By the terms of the statute
"the word 'employee' means any person on the pay roll of the
commonwealth, whether employed in the direct service of the
commonwealth or in the metropolitan district service, who
regularly gives his whole time to that service " (section 1). The
teachers and employees of the Massachusetts Agricultural Col-
lege are not, in my opinion, employees of the Commonwealth,
within this definition. Under date of June 13, 1910, my prede-
cessor advised the House of Representatives that the Massachu-
setts Agricultural College was "a public charitable corporation
organized for educational purposes," and that it was not "in
the strict sense of the words ... a State institution." Ante,
pp. 308, 312. Since that time the Massachusetts Agricultural
College has transferred its property to the Commonwealth
under authority of St. 1911, c. 311. That statute did not,
however, change the nature of the institution. Its teachers
and employees are, therefore, employees of a public charitable

JAMES M. SWIFT, ATTORNEY-GENERAL. 4C1

corporation and not of the Commonwealth, even though con-
siderable sums of money are appropriated by the Common-
wealth for the support of the corporation.

Civil Service

Civil Service — Vendor of Ixtoxicating Liquors — Drug-
gist — Sixth-class License.

A druggist who holds a sixth-class license to sell intoxicating liquors is a "vendor
of intoxicating liquors" within the meaning of R. L., c. 19, § 16, p^o^^ding
that "no . . . vendor of intoxicating liquors shall be appointed to or retained
in any office, appointment or employment to which the provision of this
chapter shall apply."

In behalf of the Civil Service Commission you have re- To the

. "^ . Civil Se

quested my opinion as to whether a druggist who holds a sixth- Commission,
class license to sell intoxicating liquors is a "vendor of in- December ii.
toxicating liquors" within the meaning of section 16 of chapter
19 of the Revised Laws.

Chapter 19 of the Revised Laws deals with the civil service.
Section 16 of this chapter is as follows: —

No person habitually using intoxicating liquors to excess and no vendor
of intoxicating liquors shall be appointed to or retained in any office,
appointment or employment to which the provisions of this chapter apply.

Licenses of the sixth class are "licenses to retail druggists and
apothecaries to sell liquors of any kind for medicinal, mechan-
ical or chemical purposes only, and to such persons only as may
certify in writing for what use they want them." R. L., c. 100,
§18.

I am of opinion that a druggist who holds a sixth-class license,
and by virtue thereof sells intoxicating liquors, is a "vendor of
intoxicating liquors" within the meaning of the civil service
statute quoted. It may be that the reasons which in the mind
of the Legislature make the holder of a license of one of the
first five classes an improper person for appointment under the
civil service law do not apply to the holder of a sixth-class
license. A holder of a sixth-class license who sells intoxicating

462

OPINIONS OF THE ATTORNEY-GENERAL.

liquors thereunder is, however, clearly within the ordinary
meaning of the words "vendor of intoxicating liquors." In my
judgment, the intention of the Legislature to exclude the holder
of such a license from the statutory prohibition is not clear
enough to justify a departure from the ordinary construction of
the phrase.

To the Bank
Commissioner .

1911
December 21.

Savings Banks — Legal Investment — Bonds of Terminal
Corporations — Railroad.

By providing in St. 1908, c. 590, § 68, cl. 3, subdivision a, that deposits in savings
banks and the income derived therefrom may be invested "in the bonds or
notes, issued in accordance with the laws of this commonwealth, of a railroad
corporation incorporated therein, ... or in the first mortgage bonds of a
terminal corporation incorporated in this commonwealth," and in subdivision
c of cl. 3 of said § 68, as amended by St. 1909, c. 491, § 8, that such deposits
and the income derived therefrom may be invested "in the first mortgage
bonds of a railroad corporation incorporated in any of the New England states,
the railroad of which is located wholly or in part therein," the Legislature
intended to restrict the investment of such deposits and income to the first
mortgage bonds of terminal companies incorporated within the Common-
wealth.

The Portland Terminal Company, a corporation organized under the laws of the
State of Maine for the purpose of establishing, maintaining, operating and
developing a terminal in the city of Portland, and authorized to acquire and
hold any or all of the franchises, rights or properties of certain railroad corpora-
tions within the territory designated as such terminal, which within such
territory operates trains, issues time-tables, sells tickets therefor, and generally
engages in the business of a common carrier of passengers, baggage and express,
may, however, be construed to be a "railroad corporation" within the mean-
ing of St. 1908, c. 590, § 68, cl. 3, subdivision c, as amended by St. 1909, c. 491,
§ 8, above quoted.

You have submitted for my opinion the following request:
"Will you kindly give me your opinion as to whether the bonds
of the Portland Terminal Company will be legal investments
for Massachugfetts savings banks, if in proper form."

While your question is a broad one, from the correspondence
and memoranda accompanying your letter I assume that the
specific point of inquiry is whether or not the bonds of the Port-
land Terminal Company would be legal investments for Massa-
chusetts savings banks, or, in other words, whether the Portland
Terminal Company is to be considered as a railroad, under the

JAMES M. SWIFT, ATTORNEY-GENERAL. 463

provisions of St. 1908, c. 590, § 68, cl. 3, subdivision c, as
amended by St. 1909, c. 491, § 8, which, in substance, provides
that deposits in savings banks, and the income derived there-
from, shall be invested only as follows : —

c In the first mortgage bonds or assumed first mortgage bonds or
in the bonds secured by a refunding mortgage as described in paragraphs
(3) or (4) of subdivision g, of a raihoad corporation incorporated in any of
the New England states, the railroad of which is located wholly or in
part therein, which have been guaranteed as to principal and interest
by a railroad corporation described in subdivisions a or 6 which is in
possession of and is operating its own road.

Said company was incorporated under the laws of Maine, by
chapter 96 of the Acts of 1887, entitled "An Act providing for
a Union Railway Station at Portland." Section 1 of that act
named the incorporators and provided that the corporation
should be authorized "to erect, maintain, manage and govern
a union railway station in Portland, for passengers, with con-
venient approaches, tracks, round houses, car sheds, signal
towers and all other convenient and usual appurtenances of
union railway stations; and for those purposes (was) authorized
to purchase, lease or otherwise obtain the right to occupy so
much as may be convenient therefor, of the tracks and road-bed
of any railroad company, with the consent of the company own-
ing or controlling such tracks or road-bed, and also to acquire,
hold and dispose of all such lands and buildings and other prop-
erty, real or personal, as may be convenient for the purposes
aforesaid." By section 2 a provision was made for such rules
and regulations for the government of such union station and
its grounds and approaches as might be consistent with the
laws of the State of Maine and the ordinances of the city of
Portland. This section also contained a provision that any
railroad entering Portland might have the common use of the
station. In section 4 it was provided that any railroad com-
pany whose tracks had entered or might thereafter enter the
city of Portland should have the lawful right to purchase, hold
and dispose of shares in the capital stock or bonds, scrip or

464 OPINIONS OF THE ATTORNEY-GENERAL.

other negotiable promises issued by the Union Railway Station
Company, "or guaranty to other purchasers or holders thereof,
the payment of said bonds, scrip, or other promises or any part
thereof."

This chapter was amended during the present year by chap-
ter 189 of the laws of the State of Maine for 1911, by which the
name of the corporation was changed to the Portland Terminal
Company. By section 2 it was provided that the railroad ter-
minal created by the act should include within its limits any or
all the properties of the Union Railway Station Company, the
Boston & Maine Railroad, the Maine Central Railroad Com-
pany, the leasehold interests of the Maine Central Railroad as
lessee of the Portland & Ogdensburg and of the Portland &
Rumford Falls Railroad, situated in the cities of Portland,
South Portland or Westbrook; and any or all the properties in
such cities of any other railroad company using the terminal
facilities under agreement with the terminal corporation. Sec-
tion 3 was as follows : —

For the establisliment, maintenance, operation and development of
such railroad terminal, and for the regulation of railroad business, passen-
ger, freight and express, within its limits, the Portland Tenninal Company
may acquire by contract, purchase or lease from the Boston & Maine Rail-
road and the Maine Central Raiboad Company,' or from any other railroad
company using or desiring to use said terminal, all or any part of the rail-
road. franchises, rights or properties within the limits of said terminal,
including lands, rights of way, tracks, road-beds, bridges, wharves, water
rights, round-houses, raikoad repair shops, stations, or other buildings;
and all title to the same or any interests therein, or any right of exercise
or operation thereof or to manage the same, withm the limits aforesaid;
nothing herein contained, however, shall authorize the Portland Termmal
Company to acquire or to renew the use of the abandoned railroad location
from Woodfords to the junction with the belt line, so called, running
from the foot of Preble street to the Union station in Portland. The tracks
on said abandoned location and Pitt street bridge, so called, over the same
to be removed by the Boston & Maine Raikoad at its own expense within
three months after this act takes effect.

Within the limits of said terminal for the purpose of making changes
and improvements therein and for all the purposes of its charter, the
terminal company shall have the same powers of eminent domain as
said railroad companies have by law; damages for real estate taken by

JAMES M. SWIFT, ATTORNEY-GENERAL. 465

condemnation to be estimated and paid in tlie same manner as prouded
by law in cases of lands taken for railroad uses.

Any corporation owning, operating, or controlling the same is hereby
authorized to make sale, lease or conveyance to the said terminal com-
pany of property which the company is hereby authorized to acquire.

The Portland Terminal Company is hereby authorized to purchase
or build railway repair shops within its hmits and to operate the same
under its own management.

Within the railroad locations included in the terminal the terminal
company may locate according to law and build, maintain and operate
electric railroads; and may purchase or lease, maintain and operate
electric street raih'oads within the limits of said terminal.

Section 6 provided as follows : —

The Boston & Maine Railroad and the Maine Central Railroad Com-
pany, and any other railroad company using the terminal facilities by
agreement with the terminal company, are each hereby authorized to
guarantee the pajnnent of the bonds issued by the Portland Terminal
Company under this act, and to lease or convey to said Portland Terminal
Company any or all property within the limits of said terminal.

Under these provisions said Portland Terminal Company is
authorized, within the limits of the railroad terminal established
for the purpose, to operate railroads, both steam and electric,
and the amount of trackage comprised within the cities men-
tioned in the act is of considerable extent. It is, therefore, in a
broad sense a "railroad" company, as held in Coughlan v.
Cambridge, 166 Mass. 268, and in Wall v. Piatt, 169 Mass. 398;
and see ante, p. 43. When this last opinion was given, how-
ever, the statutes relating to investments for savings banks con-
tained no mention of a terminal company, as such. This first
appears in St. 1908, c. 590, § 68, cl. 3, subdivision a, in which
it is provided that investments may be made as follows: —

In the bonds or notes, issued in accordance sviih the laws of this com-
monwealth, of a railroad corporation incorporated therein the railroad
of which is located wholly or in part therein, which has paid in di^^dends
in cash an amount equal to not less than four per cent per annum on all
its outstanding issues of capital stock in each fiscal year for the five years
next preceding such investment, or in the first mortgage bonds of a tcr-

466 OPINIONS OF THE ATTORNEY-GENERAL.

minal corporation incorporated in this commonwealth and whose prop-
erty is located therein, which is owned and operated, or the bonds of which
are guaranteed as to principal and interest, or assumed, by such railroad
corporation.

The evident intention of the Legislature to distinguish be-
tween terminal companies within Massachusetts and those out-
side of this Commonwealth is significant, and leads me to the
conclusion that it was not intended to permit investment by
savings banks in the bonds of a terminal corporation, as such,
organized and actually situated in some other New England State.

In the present case, while the matter is not entirely free from
difficulty, I am of opinion that the bonds of the Portland Ter-
minal Company may be considered bonds of a railroad corpora-
tion, and therefore legal investments for savings banks so far as
this specific inquiry is concerned.

I have been informed, and assume to be facts, that the Port-
land Terminal Company has exercised its authority to take over
the property of the Boston & Maine Railroad and the Maine
Central Railroad within the terminal limits established by the
act; that it runs regular passenger trains from Union Station in
Portland to Portland Junction on the Grand Trunk Railroad;
that it owns fifteen locomotives, rents- six, and owns its own
equipment of flat cars, derrick cars, and other rolling stock,
and operates passenger cars; that it issues time-tables and ad-
vertises the arrival and departure of its trains; that it sells its
own passenger tickets and receives the compensation therefor;
and that it employs a large number of people, including en-
gineers, firemen, brakemen, conductors, baggage-masters, freight
agents, ticket agents, ticket sellers and lost-article agents.
Within its limits, therefore, it seems to be doing the business
of a common carrier of passengers, baggage and express. It
therefore appears that said corporation, in addition to being a
terminal company, is a railroad company within the meaning of
the provisions of law hereinbefore cited.

The foregoing conclusion is upon the assumption that said
bonds, when issued, will be in all other respects in accordance
with the requirements of our statute. It appears, however, that

JAMES M. SWIFT, ATTORNEY-GENERAL. 461

a part of the property to be covered by the mortgage securing
said bonds is subject to a prior consolidated mortgage of the
Maine Central Railroad maturing April 1, 1912. This, in my
opinion, will prevent said bonds from becoming legal invest-
ments for Massachusetts savings banks until after the expira-
tion of said mortgage on April 1, 1912.

Marriage — Notice of Intention of Marriage — Entry —

Certificate.

Under the provision of R. L., c. 151, § 16, as amended by St. 1911, c. 736, § 1, that
"persons who intend to be joined in marriage in this commonwealth shall,
not less than five days before their marriage, cause notice of their intention
to be entered in the office of the clerk or registrar of the city or town in which
they respectively dwell, or, if they do not dwell within the commonwealth,
in the office of the clerk or registrar of the city or town in which they propose
to have the marriage solemnized," and the provision of R. L., c. 151, § 53,
as amended by St. 1911, c. 736, § 2, that "after the expiration of five days
from the date of the entry of such intention the clerk or registrar shall deliver
to the parties a certificate . . . , specifj-ing the time when notice of the
intention of marriage was entered with him . . .", delivery of the certificate
should not be made until the expiration of five full days after the date of entry,
excluding the day of such delivery and Sundays and holidays.

You have requested my opinion as to the manner in which xothe

„ . p . Secretary.

the time which must elapse between the entry ot notice ot in- 1912

. _ , » . January 2.

tention of marriage and the issuing of the certificate thereof is

to be computed.

R. L., c. 151, § 16, as amended by St. 1911, c. 736, § 1, is
as follows : —

Persons who intend to be joined in marriage in this commonwealth
shall, not less than five days before their marriage, cause notice of their
intention to be entered in the office of the clerk or registrar of the city
or town in which they respectively dwell, or, if they do not dwell within
the commonwealth, in the office of the clerk or registrar of the city or
town in which they propose to have the man-iage solemnized.

R. L., c. 151, § 23, as amended by St. 1911, c. 736, § 2, is,
in part, as follows: —

After the expiration of five days from the date of the cntiy of such
intention the clerk or registrar shall deliver to the parties a certificate

468 OPINIONS OF THE ATTORNEY-GENERAL.

signed by him, specifying the time when notice of the intention of marriage
was entered with him and all facts relative to the marriage which are
required by law to be ascertained and recorded, except those^relative
to the person by whom the marriage is to be solemnized.

R. L., c. 151, § 25, as amended by St. 1911, c. 736, § 3, pre-
scribes a penalty for the improper issuing of a certificate of
intention of marriage.

The language used in section 16, as amended, to describe the
five days' period is different from that used in section 23, as
amended. It describes, however, the same period of time, and
must be construed in the same way. In computing the five
days' period in accordance wdth section 23, as amended, the date
of the entry of intention must be excluded. Bemis v. Leonard,
118 Mass. 502. The language clearly indicates that five days
are to expire before the delivery of the certificate, that is,
the day of such delivery is to be excluded from the computa-
tion. Fractions of a day are, of course, to be disregarded (see
Hannum v. Tourtellott, 10 Allen, 494), as a day means twenty-
four hours and begins at midnight. As to Sunday, the gen-
eral rule is that "when a statute fixes a limitation of time with-
in which a particular act may or may not be done," if the time
limited "is less than a week, Sunday is excluded." Cunning-
ham V. Mahan, 112 Mass. 58, 59. I know of no reason why
the general rule should not be applied to the statute in question.
The meaning of this statute is that persons who are interested
in an intended marriage are entitled to a reasonable opportunity
on each of five days to examine the records in the office of
the clerk or registrar of the city or town for the notice of
intention of such marriage. On Sunday the clerk or registrar
is not required to keep his office open and his records are not
ordinarily open to inspection. Similarly, he is not required
to keep his office open on a legal holiday. R. L., c. 8, § 5,
el. 9. Such a holiday should, therefore, in my opinion, be
excluded from the computation. See, however, my opinion to
the Governor of the Commonwealth, under date of June
1, 1911.

JAMES M. SWIFT, ATTORNEY-GENERAL. 469

Legislative Counsel and Agents — Returns —
Compensation.

The pro\-ision of R. L., c. 3, § 24, requiring the keeping of a docket for the entr3'
of the names of legislative counsel and agents, that "such entries shall include
the name and business address of the employer, the name, residence and
occupation of the person employed, the date of the employment or agreement
therefor, the duration of the employment, . . . and the special subjects of
legislation, if any, to which the employment relates," is satisfied by an entry
that a person is so employed "on all matters of interest to the emploj^er,"
unless the employment is for some special subject of legislation.

The provision of R. L., c. 3, § 24, above quoted, and the further pro\asion of section
30, that an employer "shall render to the secretary of the commonwealth a
complete and detailed statement, under oath, of all expenses incurred or paid
in connection with the employment of legislative counsel or agents, or with
promoting or opposing legislation," are not complied with by a statement
that a person is employed as legislative counsel upon an annual salarj' without
a statement either of the amount of such salary or of a fair apportionment
thereof.

You have requested my opinion with reference to R. L., g^^retary
c. 3, §§ 23, 24, 25 and 30, in substance as to whether a general janlfary 9.
statement that a legislative counsel or agent is employed "on
all matters of interest to said corporation," is in compliance
with the law.

Said section 24, after requiring the keeping o? a docket in
which shall be entered the names of legislative counsel and
agents, provides that —

Such entries shall include the name and business addi'ess of the em-
ployer, the name, residence and occupation of the person employed, the
date of the employment or agreement therefor, the duration of the em-
ployment, if it can be determined, and the special subjects of legislation,
if any, to which the employment relates.

Under this section, in my opinion, no entry is required other
than one such as "on all matters of interest to said corpora-
tion," unless said employment is for some special subject of
legislation. There may be a general employment other than
employment in connection with specific legislation. Section 25,
however, requires further entries, both by the employer and the
employee. Under the requirements of this section I am of the

470 OPINIONS OF THE ATTORNEY-GENERAL.

opinion that although the original employment may be gen-
eral, a counsel or agent before acting with reference to any
specific piece of legislation must make an entry of that specific
legislation upon the docket.

You also request my opinion in substance as to whether the
return by a legislative counsel or agent of employment on an
annual salary, which salary is not stated, is in compliance with
the law. Said section 30 requires that the employer " shall ren-
der to the secretary of the commonwealth a complete and de-
tailed statement, under oath, of all expenses incurred or paid
in connection with the employment of legislative counsel or
agents, or with promoting or opposing legislation," This does
not, in my opinion, require an employer to make a detailed
payment for each particular service. The statute, however, is
not complied with by a mere statement that the legislative
counsel is employed upon an annual salary. If the service per-
formed as legislative counsel or agent is substantial in amount,
so that it must have been taken into consideration in fixing the
amount of the annual salary, there is expense incurred within
the meaning of the statute which should be made to appear in
some manner.^ It is not clear just how this should be done in
case no apportionment is made by the, employer. If the an-
nual salary is stated it would seem to cover the requirement of
the statute, or if a fair apportionment of said salary was made,
and that part apportioned to legislative work is returned, the
provisions of the statute would seem to be fulfilled. A mere re-
turn of an annual salary, without stating any amount, is not
in my opinion, a compliance with the law.

JAMES M. SWIFT, ATTORNEY-GENERAL. 471

Attorney-General — Order fixing Limit of Time for
Performance of Duty to advise General Court —
Street Railway Corporation — New York, New
Haven & Hartford Railroad Company — Ownership
AND Control of Springfield Street Railway Com-
pany — Supreme Judicial Court — Decree — Compli-
ance.

The General Court has no authority to fix a limit of time within which the Attorney-
General shall discharge his statutory duty of advising the General Court or
either branch of it.

The action of the New York, New Haven & Hartford Ralilroad Company in divest-
ing itself of all interest in or control over the New England Investment and
Security Company, which, through the instrumentality of the Springfield
Railway Companies, owned and controlled the Springfield Street Railway
Company, and by placing the stock of such street railway company in the
ownership and control of the New England Investment and Security Company,
whose trustees and officers are not connected as officers or directors with the
New York, New Haven & Hartford Railroad Company and have entered
into no agreement, trust or other undertaking with said company, with
respect to their acts as officers or trustees of the New England Investment
and Security Company, if performed in good faith, constitutes a compliance
with the decree of the Supreme Judicial Court dated June 23, 1908, which
enjoined the New York, New Haven & Hartford Railroad Company from
subscribing for or taking or holding, directly or indirectly, the stock of the
Springfield Street Railway Company, and from assuming or exercising the
franchise or privilege of subscribing for, taking or holding the stock of such
corporation.

On June 2, 1911, the General Court adopted an order in the xothe

General
1912
January 29.

p ii . J General Court.

lollowing terms: — 1912

Ordered, That the Attorney-General report to the General Court not
later than Jan. 15, 1912, whether the New York, New Haven & Hartford
Raihoad Company has comphed, with respect to the Springfield Street
Railway Company, with the order of the court, as more particularly set
out in a decree, under date of June 23, 1908, of the Supreme Judicial
Court; and, if so, how said railroad company has divested itself of its
interest in said railway in accordance with said decree.

With respect to the form of the order, it is to be observed
that the General Court has no authority to fix a limit of time
within which the Attorney-General shall discharge his statutory
duty of advising the General Court, or either branch of it. See
II Op. Atty.-Gen. 125, 405.

472 OPINIONS OF THE ATTORNEY-GENERAL.

It may be doubted, also, whether the order as framed pre-
sents any such question of law as is contemplated by the pro-
vision of R. L., c. 7, § 7, that the Attorney-General "shall give
his opinion upon questions of law submitted to him by the
governor and council or by either branch of the general court,"
inasmuch as no sufficient facts are presented to raise any ques-
tion of law; and the order apparently contemplates not so
much a determination of a question of law as an investigation
into existing facts and a report thereon. Inasmuch, however,
as it appears that certain facts with respect to the action of the
New York, New Haven & Hartford Railroad Company in the
premises have been presented to the Board of Railroad Com-
missioners in connection with a petition of the Springfield Street
Railway Company and the Western Massachusetts Street Rail-
way Company and a petition of the Uxbridge & Blackstone
Street Railway Company and the Worcester & Blackstone
Valley Street Railway Company for the approval by such
Board of proposed consolidations of the companies joining in
each of the respective petitions, upon which such Board has
officially acted, and the same facts were submitted to certain
individual members of the Committee on Railroads at the ses-
sion preceding that at which the order above quoted was
adopted, in connection with the passage of St. 1910, c. 601, au-
thorizing the New York, New Haven & Hartford Railroad
Company to acquire, purchase, hold and own the whole, or
any part not less than half, of the capital stock of the Berk-
shire Street Railway Company, it may fairly be presumed that
such facts were known to the General Court. I shall, there-
fore, assume that the question of law intended to be submitted
by the order of the General Court was, in substance, whether
or not the acts of the New York, New Haven & Hartford Rail-
road Company as presented to the Board of Railroad Commis-
sioners constitute a proper compliance with the terms of the
decree of June 23, 1908, referred to in said order.

The history of the litigation between the Commonwealth and
the New York, New Haven & Hartford Railroad Company is
fully discussed in the reports of my predecessor to the General

JAMES M. SAVIFT, ATTORNEY-GENERAL. 473

Court for the years 1907 (p. xiii.) and 1908 (p. xv.). The
*1 decree referred to was rendered upon an information in equity
brought by the Attorney-General under the provisions of St,
1906, c. 372, in substance alleging that the New York, New
Haven & Hartford Railroad Company, a corporation duly or-
ganized under the laws of this Commonwealth for the purpose,
among others, of owning and operating a railroad therein, had
directly and indirectly subscribed for, taken and held the stock
and bonds and had guaranteed the bonds and dividends and
was then directly and indirectly holding the stock and bonds
and was guaranteeing the bonds and dividends of certain street
railway companies incorporated under the laws of this Common-
wealth, to wit, the Worcester & Southbridge Street Railway
Company, the Worcester & Blackstone Valley Street Railway
Company, the Worcester & Webster Street Railway Company,
the Webster & Dudley Street Railway Company, the Berkshire
Street Railway Company and the Springfield Street Railway
Company, and that the stock and bonds held and the bonds
and dividends guaranteed by said railroad company were so
held and guaranteed without authority from the General Court,
or any law thereof, and that the New York, New Haven &
Hartford Railroad Company, by reason of the acts described,
had assumed and exercised and was assuming and exercising a
franchise and privilege and had transacted and was transact-
ing a kind of business not authorized by its charter or by the
laws of this Commonwealth, to wit, the franchise and privilege
of acquiring, taking and holding the stock and bonds of such
domestic street railway corporations and of guaranteeing the
bonds and dividends of said corporations and of owning and
operating said street railway corporations and the business of
acquiring or purchasing said stock and bonds and of guarantee-
ing said bonds and dividends, and of owning and operating
street railway corporations, in violation of law and to the preju-
dice and damage of the Commonwealth. The petition then
concludes —

Wherefore, the Attorney-General prays the consideration of tliis court
in the premises, and that a wTit of injunction issue restraining said New

474 OPINIONS OF THE ATTORNEY-GENERAL.

York, New Haven & Hartford Eailroad Company from the further use
and enjoyment of said franchise and privilege and from the further prose-
cution of the said business, and for such other reUef in the premises as
equity and justice may require.

The decree, so far as it is material to the question now pre-
sented, is as follows : —

It is ordered, adjudged and decreed as follows: —
The defendant is, and its officers, directors, attorneys, agents and
employees, respectively and collectively, are hereby enjoined and re-
strained : —

1. From subscribing for or taking, directly or indirectlj'-, the capital
stock of the Worcester & Southbridge Street Railway Company, the
Worcester & Blackstone Valley Street Railway Company, the Worcester
& Webster Street Railway Company, the Webster & Dudley Street
Railway Company, the Berkshire Street Railway Company and the
Springfield Street Railway Company, or either of them, all being street
railway corporations incorporated under mnd by virtue of the laws of
this Commonwealth, and mentioned in the information.

2. From assuming or exercising the franchise or privilege of subscribing
for, or taking, directly or indirectly, the stock of said street railway cor-
porations, or either of them.

3. From holding, directly or indirectly, the stock of said street railway
corporations, or either of them, after the first day of July, in the year 1909.

4. From assuming or exercising the franchise or privilege of holding,
directly or indirectly, the stock of said street railway corporations, or
either of them, after the first day of July, in the year 1909.

Provided, however, That nothing herein contained shall affect existing
leases executed in accordance with the provisions of chapter 293 of the
Acts of the year 1901 of this Commonwealth.

From this decree the defendant appealed, and the decree was
finally affirmed in Attorney-General v. New York, New Haven
& Hartford Railroad Co., 201 Mass. 370.

The state of facts to which this decree was applicable arose
as follows: the New York, New Haven & Hartford Railroad
Company, a consolidated corporation created by the concur-
rent legislation of the State of Connecticut and the Common-
wealth of Massachusetts, acquired in the years 1903 and 1904
all the shares of stock of the Worcester & Connecticut Eastern

JAMES M. SWIFT, ATTORNEY-GENERAL. 475

Railway Company, which by appropriate legisLition in the State
of Connecticut became, in part at least, a holding corporation
under the name of Consolidated Railway Company of Connecti-
cut. The Consolidated Railway Company of Connecticut in
turn acquired all or a majority of the stock of the domestic
street railway corporations named in the information of the
Attorney-General, except the Springfield Street Railway Com-
pany, of which substantially all of the stock was acquired by
a voluntary association known as the Springfield Railway Com-
panies, created for that purpose and controlled by the Con-
solidated Railway Company of Connecticut. The attention of
the Legislature of 1905 having been directed to the situation
so created with respect to the ownership of the stock in do-
mestic street railways, and being advised by the then Attorney-
General that the ownership and control of the capital stock of
street railway companies incorporated in iNIassachusetts by the
New York, New Haven & Hartford Railroad Company or the
Consolidated Railway Company of Connecticut was illegal (see
n Op. Atty.-Gen. 570), an inquiry into the facts relative to
such acquisition was begun, but no definite action was taken
thereon. In the Legislature of the following year the discus-
sion was renewed; a bill entitled "An Act relative to invest-
ments by railroad corporations in street railway companies"
was introduced but not finally adopted, and St. 1906, c. 372,
which authorized the Attorney-General to proceed by an in-
formation in equity against any corporation which assumed or
exercised a franchise or transacted a business not authorized
by the laws of the Commonwealth, and under which the in-
formation in the present case was brought, was enacted. On
June 26, 1906, before the conclusion of the session of the Legis-
lature for that year, the Consolidated Railway Company of
Connecticut sold and conveyed to the New England Livest-
ment and Security Company, a voluntary association, all of
the stock, bonds and other securities held by it in the Worces-
ter & Southbridge Street Railway Company, the Worcester
& Blackstone Valley Street Railway Company and the Berk-
shire Street Railway Company, and 102 shares of stock in the

476 OPINIONS OF THE ATTORNEY-GENERAL.

Springfield Street Railway Company, and also sold and con-
veyed to said company all of its interest in the Springfield
Railway Companies, which then held 19,253 shares of the stock
of the Springfield Street Railway Company, which, with the
102 shares already referred to, were substantially all of the
shares of said stock. In 1907, under authority of an act of
the Connecticut Legislature (House Joint Resolution No. 357)
the New York, New Haven & Hartford Railroad Company was
merged into the Consolidated Railway Company of Connecticut,
and the consolidated corporation, by a later statute, became the
New York, New Haven & Hartford Railroad Company. So far
as I am aware the situation so established continued un-
changed until May 8, 1908, when the opinion in the case of
Attorney-General v. Neiv York, New Haven & Hartford Railroad
Co., 198 Mass. 413, was handed down. In that decision the
court held, in substance, that the Consolidated Railway Com-
pany of Connecticut and the two voluntary associations, the
Springfield Railway Companies and the New England Invest-
ment and Security Company, were all instrumentalities of the
New York, New Haven & Hartford Railroad Company through
which such corporation acquired and owned and used the prop-
erty of the domestic street railway corporations named in the
information, "with as complete control as it has over its loco-
motive engines," in violation of the provision of St. 1906, c.
463, Part II., § 57, that —

A railroad corporation, unless authorized by the general court or by
the provisions of the following five sections, shaU not directly or indirectly
subscribe for, take or hold the stock or bonds of or guarantee the bonds
or dividends of any other corporation.

The court further stated, on page 431, that —

From the findings and evidence in the very voluminous report of the
master, and notably from the testimony of Mr. Mellen, the president of
the voluntary associations, and the corporations, and of Hamaer, the
secretary and comptroller of the New England Investment and Security
Company, it is plain that all the street railway companies mentioned in
the information are indirectly held and controlled and managed in the

JAMES M. SWIFT, ATTORNEY-GENERAL. 47'

interest of the defendant as absolutely and completely as it holds and
manages its hne of railroad between Springfield and New York.

It thus appeared that the precise situation to which the de-
cree above quoted was directed was an indirect and illegal con-
trol by the New York, New Haven & Hartford Railroad Com-
pany of the stock, bonds and other securities of the specified
domestic street railway corporations, effected through an owner-
ship by the New York, New Haven & Hartford Railroad Com-
pany of all of the stock of the Consolidated Railway Company
of Connecticut, which, in turn, controlled the Springfield Rail-
way Companies and the New England Investment and Security
Company, which held the legal title to the stock, bonds and
other securities of such domestic street railway corporations.

The decree in terms enjoins and restrains the defendant, and
its ofiicers, directors, attorneys, agents and employees, in two
respects, — first, from subscribing for or taking either directly
or indirectly, and from assuming to exercise the franchise or
privilege of subscribing for or taking directly or indirectly, the
stock of the street railways included within its provisions; and
second, from holding directly or indirectly, and from assuming
the franchise or privilege of holding directly or indirectly, such
stock. Briefly stated, those enjoined must not, either directly
or indirectly, acquire or hold such stock. It is unnecessary to
determine what should be deemed to constitute a direct acquisi-
tion or holding of the stock by the New York, New Haven &
Hartford Railroad Company or its officers, directors, attorneys,
agents and employees, since upon the facts in evidence the court
failed to find that the acquisition and holding were direct in
the first instance. With respect to an indirect subscription for
and taking of such stock subsequent to the date of the decree
no question appears to have been raised, and therefore the sole
inquiry presente'd for my determination is whether or not that
corporation has ceased to indirectly hold or control the stock of
the Springfield Street Railway Company, the corporation named
in the order of the General Court.

In Attorney-General v. Neiv York, New Haven & Hartford

478 OPINIONS OF THE ATTORNEY-GENERAL.

Railroad Co., 198 Mass. 413, the court, at page 426, has defined
the words "subscribed for, take or hold" in St. 1906, c. 463,
Part II., § 57, as —

intended to include legal ownership of every kind. The word "indi-
rectly" covers other modes of holding than by taking or holding
the legal title. The words together cover every kind of proprietary
interest in the stock or bonds referred to. It is immaterial how or where
the legal title is held directly, if, indirectly, the railroad corporation is
the equitable or beneficial owner of it. What the Legislature was seeking
to prevent was influence in the management of the subordinate corpora-
tion by the other corporation, however exercised, and whether extending
to absolute control or falling short of it. With this in view, language
was used in the statute to include every kind of beneficial ownership,
however indirectly held.

The situation with respect to the indirect holding of the
stock by the New York, New Haven & Hartford Railroad Com-
pany was described at length by the court, at pages 426-431 : —

The master's summary of facts and the other findings that appear in
the report show how completely the defendant controls the street rail-
ways in question. The capital stock of all of them but the Springfield
Street Railway Company was bought and held by the Consolidated Rail-
way Company, all of whose stock is held by the defendant, and all of
whose directors are the defendant's directors. If we assume that this
corporation was legally organized and is legally maintained, so as to haA'e a
separate corporate existence, it is in reality a piece of legal machinery
owned and operated by the defendant. Through this the defendant
acquires and owns and uses property with as complete control as it has
over its locomotive engines. If it does tliis indirectly, it does it as effectively
as if the ownership were direct. Through the direct purchase and owTier-
ship of the street railway corporations, by its creature, the Consohdated
Railway Company, the defendant transgressed the law as to aU the street
railway companies mentioned in the information, except the Springfield
Street Railway Company, and is still transgressing in the same way as
to the Worcester & Webster Street Railway Company and the Webster &
Dudley Street Railway Company, whose ownership is retained in the same
fomi. Some of these street railway companies have been dealt with
directly by the defendant, at different times, by votes of its directors
while acting in that capacity The defendant's president is the president
of the Consolidated Railway Company and of all these street railway

JAMES M. SWIFT, ATTORNEY-GENERAL. 479

companies, and he receives no compensation for the perfonnance of these
official duties, except his salary as president of the defendant corporation.
The stock of the Springfield Street Railway Company was acquired
tlii'ough action of the Consolidated Railway Company, whose directors
voted that it "should be acquired by this company, and that the plan for
pajTiient of the same, outlined by the president be approved, namely
the estabhshnient of a trust covering the issue of S3,000,000 guaranteed
trust certificates, and the sum of SI, 500,000 of 4 per cent, debentures
of this company." Here was the origin of the Springfield Railway Com-
panies, which was established by the Consolidated Railway Company as
a part of a scheme for holding and controlling the stock of the Springfield
Street Railway Company. This is a voluntaiy association, consisting
of a board of trustees, of whom all but one are directors of the Consolidated
Railway Company and of the defendant corporation, who are designated
as trustees in the declaration of trust, together with the members of the
firm of Lee, Higginson and Company of Boston, bankers, who are called
subscribers. Under the instrument the trustees assume no personal
jfinancial hability and have no beneficial ownership, although they are
the holders of the legal title to all the property belonging to the association,
and are the managers of it. Lee, Higginson and Company are parties
for the purpose of disposing of preferred shares to be issued by the associa-
tion, and managing other matters of finance. As a part of the arrange-
ment, the Consolidated Railway Company entered into a contract with
Lee, Higginson and Company which, after the formal part, began with a
recital as follows: "Whereas, the Consolidated Railway Company desires
to acquire the whole or at least a majority of the capital stock of the
Springfield Street Railway Company, and desires Lee, Higginson and Com-
pany to offer to the stockholders of said company S225 in cash per share,
or $75 in cash per share and $150 in preferred stock of the Springfield
Railway Companies issued under a declaration of trust, dated March 15,
1905," etc. It was then agieed that the Consolidated Railway Company
should sell its 4 per cent, fifty-year debentures to the amount of $1,500,000
and Lee, Higginson and Company should buy not exceeding that amount
of these debentures at a price named, and should underwTite not exceeding
$2,937,600 an amount of the preferred shares of the Springfield Railway
Companies at $100 per share. Then followed this recital, "which sale
of bonds, with cash to be paid by the Consolidated Railway Company,
and underwriting, will furnish the funds necessary for the purchase of
said street railway stock at the price agreed upon," etc. It was then
agreed that the Consolidated Railway Company should forthwith issue,
sell and deliver to Lee, Higginson and Company, the debentures, and that
there should be "formed a holding trust to be called the Springfield Rail-
way Companies ... to acquire and hold the whole or at least a majority

480 OPINIONS OF THE ATTORNEY-GENERAL.

of the capital stock of the Springfield Street Railway Company; which
said trust shall issue at this time not exceeding $2,937,600 of preferred
shares, which shall be entitled to cumulative di^ddends at the rate of 4
per cent, per annum, payable," etc., — "and in case of hquidation, pay-
ment of the principal of said preferred shares at the rate of SI 05 per share,
to be guaranteed by the Consolidated Railway Company, and to be subject
to call on any dividend date at the rate of $105 per share, as provided in
the agreement of said Consolidated Railway Company with the Springfield
Railway Companies," etc. There was a provision that Lee, Higginson
and Company should underwrite at par so many of the preferred shares
as should be necessary to acquire the whole, or at least a majority of the
stock of the Springfield Street Railway Company at the price stated.
There was then a provision for an underwriting commission to be given
to Lee, Higginson and Company in full payment for their services. The
expenses of forming the trust and of carrying out the terms of the agree-
ment were to be paid by the Consohdated Railway Company. Under
this arrangement the stock of the Springfield Street Railway Company
was acquired and turned over to the association, which consisted of the
trustees, with no financial interest, and the Consolidated Railway Com-
pany, which was then the beneficial owner of all the property. The com-
mon shares in the Springfield Railway Companies to the amount of $5,000,-
000, were to be delivered to the Consolidated Railway Company as soon
as a majority of the stock of the Springfield Street Railway Company
should be acquired. The proceeds of aU the prefeiTed shares were to be
accounted for to the Consolidated Railway Company by Lee, Higginson
and Company. The trust, including the accompanying contracts, was sun-
ply a machine, consti-ucted for the management of the property and the
business in the interest of the Consolidated Railway Company, which
was the interest of the defendant corporation. As to sales made by Lee,
Higginson and Company to third persons, and as to the underwTiting of
Lee, Higginson and Company if that be deemed a purchase by them of
the preferred shares, the Consohdated Railway Company is still indirectly
the owner of the shares, or at least of an interest in them. The Spring-
field Railway Companies is not a corporation, although the parties, by
their contract, sought to obtain many of the advantages of a corporation
without its liabilities. See Hussey v. Arnold, 185 Mass. 202. All who have
any proprietary interest in it have rights of property as individual o^\'ners,
subject to such restraints upon the management and use of it as are legally
imposed by the contracts under which it is held. They are equitable
tenants in common. By the terms of the agreement the association must
be wound up and liquidated at the end of twenty years and eleven months.
If there are profits from the enterprise, the Consolidated Railway Company
will be entitled to the whole of them. It held all the common shares,

JAMES M. SWIFT, ATTORNEY-GENERAL. 481

although it has since turned them over to the New England Investment
and Security Company. The other holders of the prefeiTed shares can
receive only $105 per share as principal, with interest at 4 per cent. Any
proceeds beyond that amount will go to the Consohdated Railway Com-
pany. If there is not enough in the property to pay that, the Consolidated
Railway Company must make up the deficiency; for it guaranteed this
amount to all of the preferred shares on hquidation. It can at any time
wind up the association; for by its contract it has retained a right to call
and redeem all the preferred shares on any dividend date at $105 per
share. The case is like that of an association that issues mortgage bonds
to be redeemed at $105 at maturity, with a right to call and redeem them
at any earher time at the same rate. In such a case the bondholders have
merely made a loan. The real beneficial owners of the property are those
who have agreed to pay the loan whereby the property will be redeemed.
The transfer of certificates to purchasers of prcfen-ed shares is in the
nature of a pledge. It seems plain that the Consolidated Railway Com-
pany is indu'ectly the holder and owner of everj^thing belonging to the
Springfield Railway Companies, subject to its relations to the New Eng-
land Investment and Secm-ity Company to which we shall refer hereafter.
As the defendant owns all the stock of the Consolidated Railway Com-
pany, it is indirectly the holder and owner of the 19,253 preferred shares
of the Springfield Street Railway Company in the hands of the trustees
of the Springfield Railway Companies, as well as of the right to redeem the
preferred shares in the hands of purchasers.

The New England Investment and Security Company is a voluntary
association similar to the Springfield Railway Companies, although in
terms it is of broader scope as to the property that may be owned and the
i business that may be transacted. The declaration of trust by which it
was created was signed by seven of the directors of the Consolidated
Railway Company and of the defendant corporation, who were designated
as the trustees, and by the Consohdated Railway Company, and by a
member of the firm of Mackay and Company, bankers, who contracted to
sell the preferred shares, and by an assistant of the president of the numer-
ous corporations and the associations, who are designated together as
subscribers. The trustees have no financial interest and are under no
financial habiUty in regard to the property or business, but they hold the
legal title and act as managers, under the name of the New England In-
vestment and Security Company. They issued preferred shares and
common shares which represent the o\ATiership m the property and busi-
ness of the association. The prefcn-ed shares are guaranteed by the
Consohdated Railway Company, principal and interest, as the shares of
the Springfield Railway Companies are, and are subject to call in the same
way, and are to be redeemed at $105 per share when called, or when the

482 OPINIONS OF THE ATTOKNEY-GENERAL.

affairs of the association are liquidated. This guaranty was made at the
request of the defendant corporation, which in turn guaranteed the Con-
sohdated Railway Company against loss from its guaranty. The Con-
sohdated Railway Company sold to the New England Investment and
Security Company all the stocks and bonds which it held of the Worcester
& Southbridge Street Railway Company, the Worcester & Blackstone
Valley Street Railway Company, the Worcester Railway and Investment
Company, the Spruigfield Street Railway Company and the Springfield
Railway Companies, for the sum of $10,000,000, which was paid by the
promissory note of the New England Investment and Security Company,
and it guaranteed the preferred shares of this company to the amount of
$10,000,000, at the request of the defendant corporation. The contract
under which the shares were issued and the guaranty was made, was
signed only by the New England Investment and Security Company,
the Consohdated Railway Company and the New York, New Haven &
Hartford Railroad Company. In the last analysis, in view of the owTier-
ship of one corporation by the other, the only party that had any interest
in the matters covered by the contract was the defendant corporation.
There was a contract with Mackay and Company for the sale of these
shares, but they were all held by Mackay and Company for the benefit
of the Consohdated Railway Company. At the time of the hearing there
were 66,137 prefen-ed shares held by Mackay and Company and owned
by the Railway Company. So far as relates to the questions with which
we are now concerned, there is no substantial difference between the two
voluntary associations. In each the equitable ownership is in the Con-
sohdated Railway Company which is entitled ultimately to the profits
from the management, if there are profits, on hquidation, and which must
make good the loss to the preferred shareholders if there is a deficiency.

So far as affects the relations of the Consolidated Railway
Company with the New York, New Haven & Hartford Railroad
Company, the only change in the situation dealt with by the
court in its opinion above quoted appears to be that occasioned
by the merger of the latter company into the former company,
which has already been referred to.

Since, under the laws of Connecticut, the two corporations
mentioned have been merged into a single consolidated corpora-
tion novV known as the New York, New Haven & Hartford
Railroad Company, that corporation, in order to bring into ex-
istence the conditions which w^ill constitute "a performance of
its duty to cease to hold or control either directly or indirectly

JAMES M. SWIFT, ATTORNEY-GENERAL. 483

the stocks referred to in the information" (Attorney-General v.
Neiv York, New Haven & Hartford Railroad Co., 201 Mass.
370, 372), must divest itself of such holding or control, either
by disposing of all interest in the two voluntary associations or
by disposing of the stock of the street railway companies by a
bona fide sale or transfer. I am advised that the New York,
New Haven & Hartford Railroad Company has chosen the
former method, and has taken action to divest itself of all inter-
est in or control over the New England Investment and Security
Company, which, since June 26, 1906, has owned all of the
stock of the Springfield Railway Companies, which in turn held
substantially all of the shares of stock of the Springfield Street
Railway Company. This action is reported to me to be as fol-
lows: at the time of the decree most of the trustees and officers
of the New England Investment and Security Company were
also directors and ofiicers of both the New York, New Haven &
Hartford Railroad Company and of the Consolidated Railway
Company of Connecticut. The present officers of the New
England Investment and Security Company are not corporate
officers or directors of the consolidated corporation known as
the New York, New Haven & Hartford Railroad Company. In
addition, the following action, as reported to me, has been
taken by the New York, New Haven & Hartford Railroad Com-
pany to divest itself of the indirect ownership and control of
the stock of the several street railway companies named in the
decree : —

1. The New Haven Company surrendered all the common shares of
the New England Investment and Secm-ity Company issued to it except
1,000. It has sun-endered, also, all the right originally reserved to it,
when it surrendered such common shares, to again demand their issue
to it. It has also sun-endered all right to demand the issue to it of any
additional common shares.

2. It has sold, without reservation or option of any kind, the 1,000
outstanding common shares. The purchasers thereof have paid for the
same and hold the same with an absolute title.

3. It has assigned and transferred to the New England Investment
and Security Company all its originally reserved right to call for redemp-
tion the preferred shares of the Springfield Railway Companies.

484 OPINIONS OF THE ATTORNEY-GENERAL.

4. It has assigned to the trustees for the tune being deemed to repre-
sent the common shareholders of the New England Investment and
Secm-ity Company, all its originally resei-ved right to call for redemption
the preferred shares of the New England Investment and Secm-ity Com-
pany, and that right is now held by the trustees, deemed to be appointed
for the common shareholders, to be exercised by such trustees only for
the benefit of the holders of such common shares.

5. It has accepted in heu of its demand claim against the New England
Investment and Security Company, fifteen-year notes, unsecured except
by covenants of the Investment Company not to dispose of its existing
assets without substituting other assets deemed by the trustees to be
of equivalent value, and not to pledge or encumber its assets without
equally securing by the instrument of pledge or mortgage the fifteen-year
notes issued by the Investment Company.

6. Although advised that it was under no obligation so to do, the New
York, New Haven & Hartford Railroad Company has contracted for the
sale of all the fifteen-year notes so taken by it in pajonent of its demand
claim against the New England Investment and Security Company.

7. It has sold to the New England Investment and Security Company
aU the bonds and promissory notes which it held of any of the street rail-
way companies mentioned in the information excepting the "Worcester &
Webster and Webster & Dudley companies, the disposition of which is
next hereinafter described.

8. The New York, New Haven & Hartford Raihoad Company has
sold and transferred to the New England Investment and Security Com-
pany all the stock, bonds, certificates of indebtedness and other obUga-
tions of every kind which it held of the Worcester & Webster and Webster
& Dudley Street Railway companies, except only such as had, prior to
the beginning of the suit by the Attorney-General against the New York,
New Haven & Hartford Raikoad, or by its predecessors in title, been
pledged to the New York Security and Trust Company of New York,
as trustee under the mortgage from the Worcester & Connecticut Eastern
Railway Company, as collateral security for an issue of mortgage bonds
by said last-named railway company, and as tp the reversion or equity of
redemption in all stock, bonds and other obhgations of said Worcester &
Webster and Webster & Dudley Street Railway companies so pledged,
said New York, New Haven & Hartford Raihoad Company has executed
a transfer and assignment of all its right therein, subject only to the lien
of the trustee under said mortgage.

The result of this action upon the part of the New York, New
Haven & Hartford Railroad Company, as disclosed in the evi-
dence submitted to me and contained in the official declaration

JAMES M. SWIFT, ATTORNEY-GENERAL. l.-^O

and statement of the corporation made to the House of Repre-
sentatives for the year 1909 (House Document 1329), and in
the absence of any question as to the good faith of said cor-
poration, is to place the stock of the several street railway com-
panies mentioned in the decree in the ownership or control of
the New England Investment and Security Company, whose
trustees and officers are not connected as officers or directors
with the New York, New Haven & Hartford Railroad Company
and have entered into no agreement, trust or other undertaking
with such corporation with respect to their acts as officers or
trustees of the New England Investment and Security Com-
pany; and to terminate the ownership by the New York, New
Haven & Hartford Railroad Company of any shares of the
stock of the New England Investment and Security Company,
either by surrendering such stock to the association itself or
by transferring it to individuals, free of all trusts and under no
agreement or undertaking upon the part of the individuals to
whom it was transferred. (See House Document 1329, pp. 4,

5.)

Upon the information before me, therefore, I am of opinion
that by divesting itself of all interest in or control over the New
England Investment and Security Company, which through the
instrumentality of the Springfield Railway Companies owned
and controlled the Springfield Street Railway Company, the
New York, New Haven & Hartford Railroad Company has
complied with the decree of June 23, 1908, and in the manner
above described has divested itself of its interest in the Spring-
field Street Railway Company.

486

OPINIONS OF THE ATTORNEY-GENERAL.

Constitutional Law — Taxation — Appropriation of Pub-
lic Funds — Public Purpose — Relief of Destitute
Families of Striking Employees.

A proposed resolve "That there be allowed and paid from the treasury of the
commonwealth the sum of ten thousand dollars to be expended ... for the
relief of destitute families of employees of the factories at Lawrence, who
were thrown out of work by the strike in that city," contemplates an appropria-
tion of money raised by taxation for a purpose other than a public purpose,
and if passed would be unconstitutional.

On behalf of the House Committee on Rules you have re-

To the House
Committee

on Rules. questcd my opinion as to the constitutionality of the following

February 7. , t i r? 'xx

resolve now pending before your committee : —

Resolved, That there be allowed and paid from the treasury of the
commonwealth the sum of ten thousand dollars, to be expended under
the direction of two persons, citizens of the city of Lawrence, to be ap-
pointed by the governor, and to serve without compensation, for the
relief of destitute families of employees of the factories at Lawrence who
are thrown out of work by the strike in that city. Any expenses necessarily
incurred in carrying out the provisions of this resolve shall be paid from
the said sum.

The question presented resolves itself into an inquiry as to
whether the expenditure of money from the treasury of the
Commonwealth, raised by taxation, for the purposes of the re-
solve is an expenditure for a public purpose, it being a well-
established principle that money raised by taxation may be ex-
pended only for a public purpose. See Lowell v. Oliver, 8 Allen,
247; Mead v. Acton, 139 Mass. 341; Kingman v. Brockton, 153
Mass. 255; Opinion of the Justices, 155 Mass. 598; 186 Mass.
603; and 190 Mass. 611. The words "public purpose," in the
sense herein used, were held in Lowell v. Boston, 111 Mass. 454,
not to include the purpose of an act which provided for the
relief of persons wdio had suffered loss by the fire of 1872, using,
at page 472, the following language: —

As a judicial question the case is not changed by the magnitude of
the calamity which has created the emergency, nor by the gi-eatness of
the emergency or the extent and importance of the interests to be pro-

JAMES M. SWIFT, ATTORNEY-GENERAL. 4S<

moted. These are considerations affecting only the propriety and expedi-
ency of the expenditure as a legislative question. If the expenditure is,
in its nature, such as will justifj^ taxation under any state of circumstances,
it belongs to the Legislature exclusively to detennine whether it shall
be authorized in the particular case; . . .

On the other hand, if its nature is such as not to justify taxation in
any and all cases in wliich the Legislature might see fit to give authority
therefor, no stress of circumstances affecting the expediency, importance
or general desirableness of the measure, and no concuiTcnce of legislative
and municipal action, or preponderance of popular favor in any particular
case, vnW supply the element necessary to bring it within the scope of
legislative power.

An opinion to the same effect was given by Attorney-General
Malone in 1908 with reference to a proposed resolve providing
for the expenditure of money for the relief of sufferers from the
Chelsea fire.

The present resolve does not appear to have for its purpose
an expenditure of money which can be considered a public pur-
pose. Both its title and the terms of the resolve provide for aid
to be given to certain individuals. The fact that the individ-
uals may be many in number does not of itself make the pur-
pose a public one. In Loivell v. Boston, above cited, appears
the following language : —

The incidental advantage to the pubhc or to the State, which
results from the promotion of private interests and the prosperity of
private enterprises or business, does not justify their aid by the use
of public money raised by taxation, or for which taxation may become
necessary.

The part of the decision in Mead v. Acton, above cited, also in
point is as follows : —

The direct primary object is to benefit individuals, and not the public.
In any view we can take of the statute, the pajonents it contemplates are
mere gratuities or gifts to individuals. ... A statute conferring such
power is unconstitutional, because it authorizes raising money by taxation
for the exclusive benefit of particular individuals, and appropriates money
for a private purpose which can only be raised and used for public objects.
The right to tax is the right to raise money by assessing the citizens for

488

OPINIONS OF THE ATTORNEY-GENERAL.

the support of the government and the use of the State. The term "taxa-
tion" imports the raising of money for public use, and excludes the raising
of it for private uses.

In my opinion the resolve submitted is clearly within the
principles and decisions hereinbefore referred to, and would pro-
vide for an unconstitutional appropriation of public funds.

To the
Adjutant
General.
1912
February 7.

Sheriff — Right to require Assistance in Case of Actual
OR Impending Riot, Tumult or Other Breach of the
Peace — Citizen — Militia — Precept.

Where there is imminent, impending danger of a riot or other breach of the peace,
the sheriff of any county may call such aid as a man of ordinary prudence,
firmness and activity in such situation might think necessary to quell such
riot or disturbance; or where a tumult, riot or mob actually exists or is
threatened he may, under the provisions of St. 1908, c. 604, § 142, issue a
precept directing any commander of a brigade, regiment, battalion, corps
of cadets or company within his jurisdiction "to appear at a time and place
therein specified, to aid the civil authority in suppressing such violence and
supporting the laws."

If, however, no riot or other breach of the peace actually exists or is threatened, a
sheriff has no authority to call upon citizens to act as patrolmen or to do
ordinary poUce duty.

You have requested my opinion as to whether the Sheriff of
Essex County can be required to establish patrols and police
guards in the city of Lawrence to take the place of and to per-
form the duties of the regular city police, the latter being un-
able to preserve the peace. I am informed, and for the pur-
poses of this opinion assume, that there are no riots at present
in the city, and that troops are stationed there against such a
contingency. It is also stated that it is your desire to with-
draw the militia from the city as soon as possible, consistent
with the proper preservation of the peace and suppression of
attempts to violate the law of the Commonwealth.

The office of sheriff is one of the oldest known to the law, and
from earliest times he has been the chief officer for the preserva-
tion of the peace in his county. By R. L., c. 23, § 14, it is
provided : —

JAMES M. SWIFT, ATTORNEY-GENERAL. 4S9

They [sheriffs] may require suitable aid m the execution of their office
in a criminal case, in the preservation of the peace, in the apprehending
or securing of a person for a breach of the peace and in cases of escape
or rescue of persons arrested upon ci\dl process.

The first use of the phrase "suitable aid" as above employed
appears in chapter 20 of the Acts of the Province of Massachu-
setts Bay in the year 1698. The phrase should be construed,
therefore, as giving the same authority as that of a sheriff un-
der the common law, in the light of which it is to be inter-
preted unless otherwise modified by statute. Consideration of
the decisions in that regard discloses in each case a situation
where the breach of the peace was actually in progress, or
where there had been an outbreak just previously, with an-
other disturbance expected and imminent as a reasonable cer-
tainty. I am led to the conclusion that in order to furnish
cause for the sheriff to exercise this extraordinary remedy under
his common law authority, there must be a necessity for it be-
cause of disorders either existing at the time of his action or
imminently threatened, with apparent certainty to occur. In
the exercise of this function the sheriff apparently acts in a
quasi-judicial capacity, and his determination, so long as exer-
cised within the reasonable scope of his authority, cannot be
questioned. Ela v. Smith, 5 Gray, 121.

In addition to R. L., c. 23, § 14, hereinbefore cited, R. L.,
c. 211, § 1, further provides: —

If twelve or more persons, being armed with clubs or other dangerous
weapons, or if thirty or more persons, whether armed or not, are unlaw-
fully, riotously or tumultuously assembled in a city or town, the mayor
and each of the aldermen of such city, each of the selectmen of such
town, every justice of the peace living in any such city or to^\'n and the
sheriff of the county and his deputies shall go among the persons so assem-
bled, or as near to them as may be with safety, and in the name of the
commonwealth command all persons so assembled immediately and peace-
ably to disperse; and if they do not thereupon immediately and peaceably
disperse, each of said magistrates and officers shall command the assist-
ance of all persons there present in suppressing such riot or unlawful
assembly and arresting such persons.

490 OPINIONS OF THE ATTORNEY-GENERAL.

As there is no riot in progress, upon the assumption in
your inquiry, the situation is not within the scope of this
section.

In answer to the specific inquiry, therefore, I am of the
opinion that unless a riot or other breach of the peace actually
exists, or there is immediate, impending danger thereof, the
sheriff has no power to call citizens from their own pursuits to
act as patrolmen or to do police duty; that is, to perform the
ordinary duties that are performed by police patrolmen of the
city of Lawrence. On the other hand, if there is imminent,
impending danger of a riot or other breach of the peace the
sheriff has the power and the duty to call such aid as a man of
ordinary prudence, firmness and activity in his situation would
think necessary to quell the disturbance. In case of threatened
riot our statutes provide a method in which he may proceed,
namely, to call upon the organized militia by precept issued to
its commander, under St. 1908, c. 604, § 142, which provides as
follows : —

In case of a tumult, riot, mob, or a body of men acting together by
force, to violate or resist the laws of the conmaonwealth, or when such
tumult, riot or mob is threatened, and the fact appears to the commander-
in-chief, to the sheriff of the county, to the may9r of the city or the select-
men of the town, the commander-in-chief may issue liis order, or such
sheriff, mayor or selectmen may issue a precept, directed to any com-
mander of a brigade, regiment, battaUon, corps of cadets or company,
within their jurisdiction, directing him to order his command, or a part
thereof, to appear at a time and place therein specified, to aid the ci\'il
authority hi suppressing such violence and supporting the laws; which
precept shall be in substance as follows: —

Commonwealth of Massachusetts.

To [insert the officer's title] A.B., commanding [insert his command].

Whereas, it appears to [the sheriff, mayor or the selectmen] of the [county, city
or town] of , that [here state one or more of the causes above mentioned]

in our of , and that military force is necessary to aid the civil

authority in suppressing the same: Now, therefore, we command you that you
cause [your command, or such part thereof as may be desired], armed and equipped
vvith ammunition and with proper officers, to parade at , on ,

then and there to obey such orders as may be given according to law. Hereof
fail not at your peril, and have you there this precept with your doings returned
thereon.

JAMES M. SWIFT, ATTORNEY-GENERAL. 491

This precept shall be signed by such sheriff, mayor or select-
men, and may be varied to suit the circumstances of the case;
and a copy of the same shall be immediately forwarded to the
commander-in-chief.

From this section the power of the sheriff and that of the
mayor appear to be the same. While this means may not be
the exclusive means to be employed under such circumstances,
nevertheless, in case of emergency it would be proper under this
authority for the sheriff to call upon the mihtia to aid him in
the execution of the duties of his office. It would appear,
therefore, that the militia might be called upon by the sheriff
rather than to be relieved by him by means of other persons
summoned to take the place of the militia. This action would
largely be left to the discretion and judgment of the sheriff,
under the circumstances as they might appear.

Constitutional Law^ — Police Power — Regulation of
Private Business — Sale of Theatre Tickets.

The right of the Legislature under the police power to regulate the conduct of a
private business in respect to public safety or morals does not extend to the
regulation of the sale of tickets of admission to theatres and other places of
amusement; and a proposed bill requiring that such tickets shall have the
price printed thereon and that it shall be unlawful to sell or offer for sale
any such ticket for an amount in excess of the printed sum, if passed, would
be unconstitutional and void.

On behalf of the Committee on the Judiciary you have re- to the House

• • • • !• r TT Tt'U Conimittco on

quested my opinion upon the constitutionality oi Mouse liill the Judiciary.
No. 967. This bill in substance provides that every ticket for February is.
admission to a theatre, opera house, concert hall or other place
of public exhibition or amusement shall have printed upon its
face the price thereof; that no greater sum shall be asked or
received therefor; and that it shall be unlawful for any person,
firm or corporation to sell or offer for sale any such ticket for a
sum in excess of that printed thereon.

Statutes of this character have been considered by the courts
of California (Ex parte Quarg, 149 Cal. 79) and of Illinois
(People v. Steele, 231 111. 340), and have been held unconsti-

492

OPINIONS OF THE ATTORNEY-GENERAL.

tutional for the reason that the business of conducting a theatre
or other place of amusement is a private business, and while
such business may be regulated by the Legislature in respect to
public morals or safety, under the police power, the right of
regulation cannot be extended to the sale of tickets of admission
to places of amusement. Thus, in Ex parte Quarg, above cited
the court said, at page 81 : —

The police power is broad in its scope, but it is subject to the just
limitation that it extends only to such measures as are reasonable in their
application and which tend in some appreciable degree to promote, protect
or preserve the public health, morals or safety, or the general welfare.
The prohibition of an act which the court can clearly see has no tendency
to affect, injure or endanger the public in any of these particulars, and
which is entirely innocent in character, is an act beyond the pale of this
hmitation, and it is therefore not a legitimate exercise of police power.
The sale of a theatre ticket at an advance upon the original purchase price.
or the business of reseUing such tickets at a profit, is no more immoral,
or injurious to pubUc welfare or convenience, than is the sale of any
ordinary article of merchandise at a profit.

I have no doubt that the principles so declared are applicable
to the question now before me, and I am therefore of opinion
that, if passed, House Bill No. 967 wou|d be unconstitutional
and void.

To the Chief
of the Dis-
trict Police.

1912
February 15.

Massachusetts District Police — Chief — Boiler Inspec-
tion Department — Chief Inspector.

St. 1906, c. 521, entitled "An Act to provide for the appointment of a chief inspector
of the boiler inspection department of the District Police," which provides
in section 1, in part, that "said chief inspector shall have supervision over
the members of said boiler inspection department in order to secure the
uniform enforcement throughout the commonwealth of all acts relative to
the inspection of boilers and the examination of engineers and firemen," does
not create an independent department, and the action of such chief inspector
is under the jurisdiction and subject to the orders of the Chief of the District
Police.

Under section 1 of chapter 521 of the Acts of 1906, an act to
provide for the appointment of a chief inspector of the boiler
inspection department of the District Police, providing, in

JAMES M. SWIFT, ATTORNEY-GENERAL. 493

part, as follows: "Said chief inspector shall have supervision
over the members of said boiler inspection department in order
to secure the uniform enforcement throughout the common-
wealth of all acts relative to the inspection of boilers and the
examination of engineers and firemen," you have made the
following request for my opinion : —

To what extent has the chief of the District Police authority over said
chief inspector and members of this branch of the inspection department
of the District Police? That is to say: —

First. — Has the chief inspector authority to detail any or all of the
boiler inspectors for duty in any district of the Commonwealth without
obtaining permission from the Chief of the District Police?

Second. — Has the chief inspector the authority to order such inspectors,
or any of them, from their districts to any other part of the Commonwealth
without obtaining permission from the Chief of the District Police?

Third. — How far does the authority of the Chief of the District Police
extend over the duties, disciphne and general conduct of the chief in-
spector and inspectors of boilers?

You also further inquire as to whether "there exists a depart-
ment know^n as the 'boiler inspection department' ".

In my opinion there is no provision of law which establishes
as a superior, independent department outside of the authority
of the Chief of the District Police a "boiler inspection depart-
ment."

By section 1 of chapter 108 of the Revised Laws the District
Police force is divided into two departments, to wit: the inspec-
tion department and the detective department. The boiler in-
spectors are appointed from the inspection department of the
District Police. In my opinion the action of the chief inspector
of the boiler inspection department, so called, is under the
jurisdiction and subject to the orders of a superior, the Chief
of the District Police.

Answering your questions specifically : —

The first should be answered in the negative, that is, the de-
tails made by the chief inspector would be subject to the ap-
proval or disapproval of the Chief of the District Police.

As to the second, the same answer should be made.

494

OPINIONS OF THE ATTOKNEY-GENERAL.

As to the third, I am of the opinion that the authority of the
Chief of the District Police is the same over the chief boiler in-
spector as it is over the heads of the other divisions of the de-
partment, that is, that he is the superior oflficer over all.

Commonwealth — Employee — Veteran

Consent.

Retirement —

To the Chief
of! the Dis-
trict Police.

1912
February 16.

St. 1907, c. 458, § 1, providing that, with the consent of the Governor, a veteran
of the civil war in the service of the Commonwealth, if incapacitated for
active duty, may be retired at one-half the rate of compensation paid to him
when in active service, was designed not only to provide a pension for the
person so retired, but also to relieve the public service of persons unable to
perform the duties required of them, and if incapacitated for duty a veteran
may be so retired without his consent and upon the request and recommenda-
tion of the head of the department in which he is employed.

By a communication dated February 12 you have requested
my opinion upon the question whether, under the provisions of
St. 1907, c. 458, § 1, you are authorized to request and recom-
mend the retirement of any veteran employed in the depart-
ment who in your opinion is incapacitated to such a degree as
to render his retirement necessary for the good of the service,
irrespective of his desire to so retire. '

The statute to which you have referred is as follows : —

A veteran of the civil war in the service of the conmionwealth, if incapac-
itated for active duty, shall be retired from active service, with the consent
of the governor, at one half the rate of compensation paid to him when in
active service, to be paid out of the treasury of the commonwealth: pro-
vided, that no veteran shall be entitled to be retired under the provisions
of this act unless he shall have been in the ser\'ice of the commonwealth
at least ten j^ears. But if, in the opinion of the governor and council,
any veteran of the civil war in said service is incapacitated to such a
degree as to render his retirement necessary for the good of the service,
he may so be retired at any time. A veteran retired under the provisions
of tins act, whose term of service was for a fixed number of years, shall
be entitled to the benefits of the act without reappointment.

This statute is applicable to cases where a veteran of the
civil war in the service of the Commonwealth is incapacitated

JAMES M. SWIFT, ATTORNEY-GENERAL. 495

for active duty, and in such cases is mandatory, and, besides
providing a pension for the person retired, is obviously intended
to reheve the pubHc service of persons unable to perform the
duties required of them. I am therefore of opinion that, with
the consent of the Governor, a veteran may be retired, if in-
capacitated for active duty, without regard to the desire of
such veteran in the premises; and while the statute contains
no express provision to that effect, I have no doubt that the
head of a department may properly request and recommend re-
tirement in such cases.

Constitutional Law — Police Power — Regulation of
Sale op Goods, Wares and Merchandise made by
Convict Labor in Prison — Constitution of the
United States — Commerce Clause.

a proposed act requiring that all goods, wares and merchandise made by convict
labor in any prison, reformatory or jail in this or any other State and brought
into this Commonwealth, shall, before being exposed for sale, be marked
"Convict Made," and providing that any person offering such goods for sale
or having such goods in possession, without the printed label or mark, shall
be guilty of a misdemeanor, cannot be justified as a valid exercise of the
police power; and since it would constitute a burden or restriction upon
interstate commerce, and would therefore be in contravention of the commerce
clause (U. S. Const., Art. I., § VIII.) of the Federal Constitution, would
therefore be unconstitutional if enacted. '

Your committee has requested my opinion upon the con- Jom^i

stitutionality of House Bill No. 833, entitled "An Act relative "Vgu'^'"
to the marking of goods made in penal institutions," and pro- *^!L_
viding, in substance, that all goods, wares and merchandise
made by convict labor in any prison, reformatory or jail in
this or any other State in w^hich convict labor is employed and
imported, brought or introduced into the State of Massachusetts,
shall, before being exposed for sale, be branded, labelled or
marked "Convict Made;" and that any person offering such
goods for sale, or having such goods in possession for that pur-

' See Opinion of the Justices, 211 Mass. 605.

ttee

496 OPINIONS OF THE ATTORNEY-GENERAL.

pose, without the brand, label or mark, shall be guilty of a mis-
demeanor, and upon conviction shall be punished by a fine not
exceeding $1,000 nor less than $50, or by imprisonment for a
term not exceeding twelve months or by both fine and im-
prisonment.

I am of opinion that the proposed bill, if enacted, would be
unconstitutional for the reason that it is in contravention of the
commerce clause of the Federal Constitution (U. S. Const., Art.
I., § VIII) which provides that "the congress shall have power
... to regulate commerce . . . among the several states,
. . .", since prison-made goods, when brought into the Com-
monwealth from another State, become articles of interstate
commerce, and, as such, may not be discriminated against.
Arnold v. Yanders, 56 Ohio, 417. Since, for the reasons which
are set forth at length in the opinion of the court in the case
of People V. Hawkins, decided by the Court of Appeals of the
State of New York (157 N. Y. Rep. 1), the proposed legisla-
tion cannot be justified as a valid exercise of the police power,
it w^ould constitute a burden or restriction upon interstate
commerce, and is therefore unconstitutional.

JAMES M. SWIFT, ATTORNEY-GENERAL. 497

Constitutional Law — Qualification of Voters — Legis-
lature — Police Power — Regulation of Conduct of
Elections.

The qualifications which shall entitle any person to vote or to be voted for
and the right to elect and to be elected to public office are defined in
Article IX. of the Declaration of Rights and Articles III., XX. and XXI.
of the Articles of Amendment to the Constitution of the Common-
wealth.

The conduct of elections may be regulated by the Legislature under the police
power for the purpose of providing an easy and reasonable mode of exercising
the constitutional right preventing error and fraud and securing order and
regularity; but all such regulation must be subordinate to the provisions
of the Constitution and cannot add to or diminish the qualifications of a
voter as therein prescribed.

Whether or not the provisions of a proposed act which restrict the expenditure of
money or the contribution of any other valuable thing in connection with
an election by any person whether or not such person is a candidate for
public office, to travelling expenses incurred by himself and to expenses for
preparing,' circulating and filing nomination papers; to forbid, except in cases
of age or physical disability, the conveyance of any voter to the polls other-
wise than at his own expense, and require that if any person elected to office,
or any member or agent, or his campaign committee, or any other person
acting in his or their interest or behalf, is con\'icted of any \'iolation of the
law relating to corrupt practices at the primary at which such candidate was
named, or at the election at which he was elected, such office shall be vacated
and a new election shall be held to fill it, are reasonable and necessary precau-
tions against bribery, fraud and other improper conduct in connection with
elections and, therefore, a protection to the constitutional right to elect and
to be elected to office, is primarily a question of fact and, therefore, a proper
subject for the determination of the Legislature.

It would seem, however, that the enforcement of such stringent regulations as
those above described could hardly be held to be a reasonable regulation of
the exercise of the right to take part in elections.

A provision in the proposed act requiring that persons who, by reason of age or
physical infirmity, are unable to reach the polls without assistance and are,
therefore, transported to and from the polls shall, before voting, make a
statement under oath of such disability, is clearly unconstitutional as im-
posing a qualification upon such persons additional to those prescribed by
the Constitution.

By an order dated February 27 the Honorable Senate has re- to the Senate,
quested my opinion upon four questions of law affecting the March 8.
constitutionality of House Bill No. 1360, which is entitled "An
Act relative to election expenses." Section 1 of this bill is de-
signed to amend St. 1907, c. 560, § 316, as amended by St.

498 OPINIONS OF THE ATTORNEY-GENERAL.

1911, c. 679, § 1, by striking out the whole of said section and
substituting the following section: —

No person shall, in order to aid or promote his own or another's nonuna-
tion or election to a public office, directly or indirectly, liimself or through
another person, give, pay, expend or contribute, or promise to give, pay,
expend or contribute, any money or valuable thing, except for expenses
directly incurred and paid by a person for traveUing and for purposes
properly incidental to travelhng, and for preparing, circulating and filing
nomination papers; but nothing in this section shall be construed to pro-
hibit a person from making a voluntary payment of money or a voluntary
and unconditional promise of payment of money to a pohtical committee
for the promotion of the principles of the party which it represents and
for expenses properly incidental thereto.

Section 2 of the proposed bill purports to amend St. 1907,
c. 560, § 317. The section as there set forth, however, has been
already amended by St. 1911, c. 679, § 2, and I assume that
the proposed bill is applicable to the amended section. The
present amendment strikes out the whole of this section and in
its place provides that — •'

The mayor of each city and the selectmen of each town of two thousand
or more mhabitants in the commonwealth shall, at each primary and
election, provide one conveyance for each voting precinct within their
jurisdiction, to be used under the direction of the presiding officer at each
poUing place in transporting to and from the poUs such persons only as
by reason of age or physical infirmity are unable to reach the same without
assistance. A record of all persons so transported shall be kept by the
presiding officer, and he shall require from each before voting a statement
under oath of such physical disabihty. No voter shall be conveyed to the
polls otherwise than entirely at his own expense except as herein proA^ded.

Section 6 of the proposed bill amends St. 1911, c. 679, § 6,
which provides that —

If a person elected to public office is con\acted of any ■s\'ilful violation
of the law relating to corrupt practices in connection with the primary
or election at which he was nominated or elected, his office shall thereby be
vacated, and a new election shall be held for the purpose of filling the same.

so that it shall read as follows : —

If a person elected to pubUc office, or any member or agent of his cam-
paign committee, or any other person acting in his or their interest or

JAMES M. SWIFT, ATTORNEY-GENERAL. 499

, behaK, is comdcted of any violation of the law relatmg to corrupt practices
in connection mth the primaiy or election at which he was nominated
or elected, his office shall thereby be vacated, and a new election shall be
held for the purpose of filhng the same.

The inquiries of the Honorable Senate with relation to the
provisions above quoted are as follows : —

1. Is the provision in section 1 of the bill pruited as House Bill Xo.
1360 constitutional, which forbids a candidate to incur any expense in
order to aid his nomination or election except as provided in lines 12 to 20
of said section?

2. Is the provision in the same section constitutional, which extends
the same prohibition to persons not candidates?

3. Is the provision in section 2 of the same bill constitutional, which
p^o^^des that no voter shall be conveyed to the polls otherwise than
entirely at liis own expense, except in case of physical inability?

4. Is the provision of section 6 of the same bill constitutional, which
provides for vacating an election because of coiTupt practices without
proof of a candidate's knowledge or consent?

The qualifications which shall entitle any person to vote or
to be voted for in this Commonwealth, and the right to elect
or to be elected to public office, which is consequent upon such
qualifications, are clearly fixed and defined by the Constitution
of Massachusetts, and the Legislature cannot add to or alter
the former or restrict or destroy the latter. Kinneen v. Wells,
144 Mass. 497, 499. The provisions of the Constitution of the
Commonwealth upon this subject are to be found, first, in
Article IX. of the Declaration of Rights, which declares that —

All elections ought to be free; and all the inhabitants of this common-
wealth, having such quahfications as they shall establish by their frame
of government, have an equal right to elect officers, and to be elected,
for pubhc employments.

and second, in the Articles of Amendment to the Constitution
which prescribe the qualifications of voters, to be found in
Articles III., XX. and XXXI., of which it is necessary to con-
sider only Article III. This article is as follows: —

Eveiy male citizen of twenty-one years of age and upwards, exccptmg
paupers and persons under guardianship, who shall have resided witliin

500 OPINIONS OF THE ATTORNEY-GENERAL.

the commonwealth one year, and within the town or district in which
he may claim a right to vote, six calendar months next preceding any elec-
tion of governor, lieutenant-governor, senators, or representatives, shall
have a right to vote in such election of governor, Ueutenant-govemor,
senators and representatives; and no other person shall be entitled to
vote in such elections.

The qualifications of voters being thus established, the con-
duct of elections may be regulated by the Legislature under
Article IV. of Section I. of Chapter I. of Part the Second of
the Constitution, by which full power and authority is con-
ferred upon the General Court —

from time to time to make, ordain and estabUsh, all manner of wholesome
and reasonable orders, laws, statutes, and ordinances, directions and
instructions, either with penalties or without; so as the same be not
repugnant or contrary to this constitution, as they shall judge to be for
the good and welfare of this commonwealth, and for the government and
ordering thereof, and of the subjects of the same, and for the necessary
support and defence of the government thereof;

but all legislation must be subordinate to the provisions of the
Constitution already cited, and cannot add to or diminish the
qualifications of a voter as therein prescribed. Kinneen v.
Wells, suyra, p. 499; Blanchard v. Stearns, 5 Met. 298, 301;
Williams v. Whiting, 11 Mass. 424; Opinion of the Justices, 5
Met. 591, 592; Commonwealth v. Rogers, 181 Mass. 184, 186.
The power of the Legislature in the premises was well de-
scribed by Chief Justice Shaw in the case of Capen v. Foster,
12 Pick. 485, at page 488, where he stated —

And this court is of opinion that in aU cases where the Constitution
has conferred a pohtical right or privilege, and where the Constitution
has not particularl}^ designated the manner in which that right is to be
exercised, it is clearly ^dthin the just and constitutional limits of the
legislative power to adopt any reasonable and uniform regulations in
regard to the time and mode of exercising that right, which are designed
to secure and facilitate the exercise of such right, in a prompt, orderly and
convenient manner. Such a construction would afford no warrant for
such an exercise of legislative power, as, under the pretence and color of
regulating, should subvert or injuriously restrain the right itself.

And see, Cole v. Tticker, 164 Mass. 486.

JAMES M. SWIFT, ATTORNEY-GENERAL. 501

The provision of the Constitution from which the Legislature
derives the power to regulate the exercise of the right of fran-
chise is that which confers upon the General Court the police
power (see Commomvealth v, Danziger, 176 Mass. 290, 291,
and cases cited), and this power must always be reasonably
exercised. CommomceaUh v. Bearse, 132 Mass. 542, 546; Com-
monwealth V. Alger, 7 Cush. 53.

From the principles above discussed, therefore, it is clear that
in passing upon the constitutionality of legislation which affects
the right of any person or persons to elect or to be elected to
pubUc offices created by the Constitution or laws of the Com-
monwealth, it is necessary to determine as a matter of fact
whether or not such legislation is intended to "provide 'an
easy and reasonable mode of exercising the constitutional
right' " and is "calculated to prevent error and fraud, to secure
order and regularity in the conduct of elections, and thereby
give more security to the right itself." Commomoealth v. Rogers,
181 Mass. 184, 186; citing Capen v. Foster, supra; Kinneen v.
Wells, supra; and Jaquith v. Wellesley, 171 Mass. 138, 143.

From the principles which I have already discussed it follows
that the proposed amendments will be constitutional only if
they are designed to afford and do afford an easy and reasonable
mode of exercising the constitutional right of participating in
elections, and are "calculated to prevent error and fraud, to
secure order and regularity of conduct of elections, and thereby
give more security to the right itself." It is to be observed
that the effect of the proposed legislation, taken as a whole, is
to restrict the expenditure of money pr the contribution of any
other valuable thing in connection with an election, by any per-
son, whether or not such person is a candidate for public office,
to travelling expenses and expenses properly incident to travel
incurred by himself, and to expenses for preparing, circulating
and filing nomination papers; to forbid, except in the manner
designated, the conveyance of any voter to the polls except en-
tirely at his own expense; and to require that if any person
elected to office, or any member or agent of his campaign com-
mittee, or any other person acting in his or their interest or

502 OPINIONS OF THE ATTORNEY-GENERAL.

behalf, is convicted of any violation of the law relating to cor-
rupt practices at the primary at which such candidate was
nominated or the election at which he was elected, such office
shall be vacated and a new election shall be held to fill it. The
provision in St. 1907, c. 560, § 316, as amended by section 1 of
the proposed bill, that the act shall not apply to voluntary pay-
ments or promises of payment of money to a political com-
mittee, does not enlarge the field of permitted expenditure, for
the reason that except for the purposes already enumerated no
person is authorized to expend it, although the words "for the
promotion of the principles of the party which it represents and
for expenses properly incidental thereto" may have been in-
tended to permit to political committees a greater freedom than
is given to individuals in the premises.

The question thus presented is primarily one of fact, and
therefore a proper subject for the determination of the Legis-
lature. The enactment of the proposed amendments would
have the effect of a determination by the General Court that
the regulations contained therein were not in its opinion a
restriction upon the exercise of the constitutional right affected,
but were reasonable and necessary precautions against bribery,
fraud and other improper conduct in connection with elections,
and therefore a protection of the right itself, and, as such,
would doubtless be entitled to great weight. See Common-
wealth V. Bearse, 132 Mass. 542, 549; Commonwealth v. Alger, 7
Cush. 53, 102. So far as I am at liberty to express my views
upon a question of this character, however, I am constrained
to say that in my opinion^ by the enforcement of such stringent
regulations as those contained in the proposed bill, the right of
every citizen of the Commonwealth duly qualified to elect and
to be elected to public office would be seriously impaired and re-
stricted, since under such regulations a general election held
throughout the Commonwealth might be invalidated by the act
of a single person in violating even some minor provision of
the law relative to corrupt practices. A regulation of elections
which makes possible such a result can hardly be held to be a
reasonable regulation of the exercise of the right to take part in

JAMES M. SWIFT, ATTORNEY-GENERAL. 503

elections, but is, rather, an injurious restraint and interference
with it. For the reasons stated, therefore, I am of opinion that
the proposed amendments referred to in each of the questions
submitted by the Honorable Senate do not constitute a reason-
able or necessary regulation of the constitutional right, are not
necessary for its protection, and, if passed, would therefore be
unconstitutional and void.

With respect to the second inquiry of the Honorable Senate,
which refers to section 2 of the proposed bill, there is a further
objection upon constitutional grounds, in that said section pur-
ports to require of certain persons otherwise qualified to vote,
as a preliminary to voting, an oath relative to their physical
condition, which clearly constitutes a qualification additional
to those prescribed by the Constitution.

See Kinneen v. Wells, 144 Mass. 497; Rison v. Farr, 24 x\rk.
161; Davies v. McKeeby, 5 Nev. 369; Green v. Shumicay, 39
N. Y. 418.

Constitutional Law — Appropriation of Money Raised by
Taxation — Moral Obligation — Repayment of Money
PAID UNDER Mistake of Fact or Law — New^ York,
New Haven & Hartford Railroad Company.

The fiilfilment of a moral obligation upon the Commonwealth, created by a claim
growing out of general principles of right and justice and based upon con-
siderations of a moral or merely honorary nature, such as would be binding
on the conscience or honor of an individual, is a public purpose, and money
raised by taxation may be appropriated therefor, although such claim could
not be enforced by any legal procedure.

A proposed resolve to provide for repayment by the Commonwealth of a sum
erroneously paid as taxes by the New York, New Haven & Hartford Railroad
Company, if the Legislature determined that the facts submitted in connec-
tion therewith imposed upon the Commonwealth a moral obligation of the
character heretofore recognized, would, if passed, be constitutional.

Your communication of March 6 states that you desire my to the Com-

, mitteo on

opinion "concerning the constitutionality of the repayment of Taxation,
the franchise tax for 1910 to the New York, New Haven & MMi.
Hartford Railroad as set forth in House Bill No. 508." The
bill to which you refer is a proposed resolve to provide for
the repayment by the Commonwealth of a sum erroneously

504 OPINIONS OF THE ATTORNEY-GENERAL.

paid as taxes by the New York, New Haven & Hartford Rail-
road Company, and is as follows: —

Whereas, on September fifteen, nineteen hundred and nine, the New
York, New Haven and Hartford Raihoad Company executed an instru-
ment purporting to convey its real estate in Park Square in the city of
Boston to Moses Williams and others, as trustees, and whereas the said
trustees paid the tax on the said property levied by the city of Boston
for the year nineteen hundred and ten, the said property being valued
by the city at the sum of four million four hundred and seventy-two thou-
sand dollars, and whereas on May sixteen, nineteen hundred and eleven,
the supreme judicial court of the commonwealth rendered a decision that
the said deed of conveyance was null and void, then making the said cor-
poration hable to repay the said tax to the said trustees and then also enti-
thng the said corporation to an abatement of part of the franchise tax
paid to the commonwealth by the said corporation for the year nineteen
hundred and ten. now, therefore, be it

Resolved, That the treasurer of the commonwealth shall pay co the said
corporation a sum equivalent to the sum which would have been deducted
from the franchise tax of the said corporation for the year nineteen hun-
dred and ten, had not the said deed of conveyance been made, with, interest
from the date of the payment of the said tax in the year nineteen hundred
and ten, until the date when this resolve takes effect.

The facts upon which your inquiry is based are substantially
recited in the preamble to the proposed resolve. The New
York, New Haven & Hartford Railroad Company having in
its possession certain real estate formerly occupied as a station
at Park Square in the city of Boston, rendered unavailable for
railroad purposes by the erection of the terminal passenger sta-
tion and other changes made under the provisions of St. 1896,
c. 516, on Sept. 15, 1909, conveyed said real estate to certain
trustees, subject to the terms, conditions and trust contained in
a declaration of trust bearing the same date. These trustees,
who had full power in the premises, were to develop the prop-
erty and dispose of it for the benefit of the holders of shares,
which, to the number of 52,000, the trustees were authorized
to issue to the New York, New Haven & Hartford Railroad
Company in payment for the real estate so conveyed. The tax
in question was assessed and paid under the provisions of St.
1909, c. 490, part HI., §§ 40-43, and as the Park Square prop-

JAMES M. SWIFT, ATTORNEY-GENERAL. 505

3rty stood in the name of the trustees and was taxed to them
by the city of Boston, the New York, New Haven k Hartford
Railroad Company did not include it in its statement of the
v\-orks, structures, real estate, machinery, underground conduits,
wires and pipes owned by it and subject to local taxation as re-
quired by section 40 above referred to, and it was not, there-
fore, deducted from the amount of the franchise tax as author-
ized by section 41. Upon May 16, 1911, the Supreme Judicial
Court of the Commonwealth, in the case of Williams v. John-
son, 208 Mass. 544, a proceeding brought by a stockholder of
the New York, New Haven & Hartford Railroad Company,
handed down a decision holding that the disposition of the
Park Square property of the New York, New Haven & Hart-
ford Railroad Company was vltra vires, that the deed of said
company to the trustees was beyond the power of the corpora-
tion or the directors to make, and that the trustees took no
valid title under it. If the invalidity of the transfer of the
title had been known at the time when the tax for the year
1910 was assessed, the company would have been entitled to
have the value of the Park Square property deducted from the
value of its corporate franchise in determining the amount of
franchise tax, and if such invalidity had been discovered within
six months after the payment of said tax, the corporation
might have secured a proper deduction by a petition to the
Supreme Judicial Court, as provided in section 70 of part HI.
of chapter 490, but since more than six months have elapsed
from the date of payment of the tax there is now no legal
rem.edy open to the corporation.
Upon these facts, I reply to your specific inquiry as follows: —
It is well established that the Legislature may appropriate
money raised by taxation only for a public purpose. Lowell v.
Boston, 111 INIass. 454; Kingman et al., petitioners, 153 Mass.
566; Opinion of the Justices, 186 Mass. 603, 605; Opinion of
the Justices, 190 Mass. 611, 613.

Among those purposes which are generally recognized as pub-
lic, and for which money raised by taxation may be expended,
is the fulfilment of moral obligations, so-called, resting upon

506 OPINIONS OF THE ATTORNEY-GENERAL.

the sovereign, which cannot be enforced or required by any legal
procedure; and it has been held that where a claim grows out
of general principles of right and justice and is based upon
considerations of a moral or merely honorary nature, such as
are binding on the conscience or the honor of an individual,
it may be fulfilled although the claim could obtain no recogni-
tion in a court of law\ United States v. Realty Company, 163
U. S. 427, 440.

How far the Legislature of this Commonwealth may go in
recognizing moral obligations by the appropriation of money
raised by taxation has never been determined by the courts,
although in Earle v. Commonwealth, 180 Mass. 579, in speaking
of such an appropriation to be recovered as damages for a kind
of injury for which it was unnecessary to provide compensation,
Mr. Justice Holmes observed that "some latitude is allowed to
the Legislature. It is not forbidden to be just in some cases
where it is not required to be by the letter of paramount law."
Such obligations have been very generally recognized in the past
by legislative acts appropriating money to compensate indi-
viduals for injuries received or property destroyed in the public
service (see, for example, Resolves of 1910, c. 102; Resolves of
1909, c. 137; Resolves of 1908, cc. 49, 52, 55, etc.); or to afford
compensation for other less definite and certain claims (see Re-
solves of 1906, c. 61; Resolves of 1905, c. 55; Resolves of 1904,
c. 49; Resolves of 1903, cc. 36, 77, 83; Resolves of 1902, cc. 11,
57), and no question appears to have been raised with respect
to them.

This recognition has been expressly extended to the reim-
bursement for money paid into the treasury of the Common-
wealth under a misapprehension of fact. Thus, Resolves of
1907, c. 19, provides for the payment to the town of Dalton of
$2,618.76, said amount "having been paid by the town . . .
for the support of a State charge under a misapprehension of
facts." And see Resolves of 1904, c. 78. Even more closely in
point is Resolves of 1907, c. 36, which provided for reimbursing-
the Mexican Central Railway for taxes inadvertently assessed,
which had been paid into the treasury of the Commonwealth,.

JAMES M. SWIFT, ATTORNEY-GENERAL. 507

and for the recovery of o'ne of which a petition had been
brought under St. 1903, c. 437, § 84, upon which the court had
held the assessment invaUd. Mexican Central Raihcay v. Coni-
mo7iweaUh, 192 Mass. 129.

Although the court has never precisely defined the limits of
the power of the General Court with respect to the recognition
of claims such as that presented by the proposed resolve in
favor of the New York, New Haven & Hartford Railroad Com-
pany, if the Legislature shall determine that the facts submitted
in connection with said resolve impose upon the Common-
wealth a moral obligation of the character of that recognized
in the case of the Mexican Central Railway Company, or in
other cases cited where municipalities or individuals have been
reimbursed for money paid under a mistake of fact or law, I am
of opinion that it may make a sufficient appropriation to discharge
said obligation.

Constitutional Law — Elections — Voting Machines, Bal-
lot Boxes and Counting Apparatus — Examination
BY State Ballot Law Commission — Delegation of
Legislative Authority.

a provision in a proposed act relating to the use of voting machines, that "the
State Ballot Law Commission shall also constitute the State Board of Voting
Machine Examiners, and shall at such times, under such conditions and after
such public notice as they shall determine, examine voting machines, ballot
boxes and counting apparatus, and they shall make and file with the Secretary
of the Commonwealth their report on such machines, ballot boxes and count-
ing apparatus as in their judgment conform to the requirements of law,
together with such written or printed descriptions and such drawings, specifica-
tions and photographs as shall clearly identify such machines," does not vest
in or impose upon the State Ballot Law Commission any powers and duties
which involve a delegation of legislative authority which would be objection-
able upon constitutional grounds.

The provision above quoted does not directly require the State Ballot Law Commis-
sion to approve only such machines as fulfill the requirements of the primary
law, but indirectly requires such approval, since they are required to make
and file their report only on such machines, ballot boxes and counting
apparatus as in their judgment conform to such requirements.

By a vote, the Committee on Election Laws has submitted ;^Vu^"„^'"\
to me certain specific inquiries with relation to the draft of an '^oiT
act now pending before said committee, entitled "An Act'

508 OPINIONS OF THE ATTOKNEY-GENERAL.

relative to the examination and use of voting machines, ballot
boxes and counting apparatus." Section 1 of the proposed
draft amends section 186 of chapter 560 of the Acts of the year
1907 by striking out the whole of said section and inserting in
its place the following : —

No member of said commission (the state ballot law commission) shall
hold any public office except that of justice of the peace or notary public,
or be a candidate for pubhc office, or member or employee of any political
conmiittee, or have any pecuniary interest, directly or indirectly, in any
voting machine, ballot box or counting apparatus. If any member of the
commission shall be nominated as a candidate for public office and shall
not in writing decline said nomination within three days, he shall be deemed
to have vacated his office as a member of said commission. The state
ballot law commission shall also constitute the state board of voting ma-
chine examiners and shall, at such times, under such conditions, and after
such public notice as they shall determine, examine voting macliines,
ballot boxes and counting apparatus, and they shall make and file with the
secretary of the commonwealth their report on such machines, ballot boxes
and counting apparatus as in their judgment conform to the requirements
of law, together with such written or printed descriptions, and such draw-
ings, specificatioiis and photographs as shall clearly identify such machines,
and the secretary of the commonwealth shall send a copy of each report
on voting machines to every city and town clerk. For the purpose of
such examination the said board may employ not more than three
expert machinists at a cost not exceeding ten dollars each for each day
employed, to be paid from the appropriation for the expenses of the
commission.

Section 2 provides as follows: —

Voting machines shall fm-nish convenient, simple and satisfactory means
of voting and of ascertaining and recording the true result thereof with
facility and accuracy, special regard being given to the prevention and
detection of double voting; but no machine shall be approved which does
not secure to the voter as much secrecy in voting as is afforded by the use
of the official ballot. Ballot boxes shall have sufficient locks and keys
or seal fastenings, and shall contain mechanical devices for receiving,
registering and cancelling every ballot deposited thereon; but no such
box shall record any distinguishing number or mark upon a ballot. No
machine, ballot l)ox oi counting apparatus, except such as is approved in
accordance with the provisions of this section, shall be used at any election,

JAMES M. SWIFT, ATTORNEY-GENERAL. 509

primary or caucus in this coninionwealth; nor shall anj' such machines,
ballot boxes or counting apparatus be used except in accordance -nith the

provisions of this act.

The questions submitted for my consideration are —

First. — As to the constitutionahty of the provision delegating the
power to specify or to detemiine the requirements of voting machines,
especially as to whether the machines would fulfill the requirements of
our laws relating to primaries and elections.

Second. — Does the bill herewith submitted fully authorize and compel
the commissioners named in the bill to approve only such machines as
fulfill the requirements of our primary and election laws?

and you further state that —

If the bill does not, in your opinion, either in fonn or in substance fully
cover the question that may arise, we should be very glad to have you
make suggestions and draft of a bill that would fully cover the subject
matter.

The purpose of the proposed bill is to vest in the State Ballot
Law Commission the power to examine voting machines, bal-
lot boxes and counting apparatus for the purpose of determin-
ing whether or not such appliances conform to the requirements
of law which are substantially stated in section 2; and if the
commission determine that such appliances do conform to the
requirements of law, it is made their duty to file with the
Secretary of the Commonwealth their approval in writing thereof,
together with a sufficient description to identify the particular
kind of voting machine, ballot box or counting apparatus ap-
proved.

Subject to the limitation that the qualifications which entitle
any person to vote in this Commonwealth and the right to
elect and to be elected to public office which is consequent upon
the possession of such qualifications, may not be altered or re-
stricted, the Legislature may adopt any reasonable and uniform
regulations in regard to the time and manner of exercising the
right of voting, which are designed to secure and facilitate the
exercise of such right in a prompt, orderly and convenient man-

510 OPINIONS OF THE ATTORNEY-GENERAL.

ner. Capen v. Foster, 12 Pick. 485, 488; Kinneen v. Wells, 144
Mass. 497; Cole v. Tucker, 164 Mass. 486.

The regulations in the proposed act with respect to the use
of voting machines appear to be reasonable and uniform in
their application, and are, therefore, open to no objection upon
the ground that they constitute an interference with the con-
stitutional right "to elect officers, and to be elected, for public
employments." Art. IX., Declaration of Rights. Nor, in my
opinion, do the powers and duties vested in and imposed upon
the State Ballot Law Commission involve a delegation of the
legislative authority which would be objectionable upon consti-
tutional grounds. See Art. XXX., Declaration of Rights.

It is well established in this Commonwealth that while the
Legislature may not delegate the general power to make laws
conferred upon it by the Constitution, it may leave to a sub-
ordinate tribunal the determination of such details as the Leg-
islature cannot well determine for itself in the carrying out of a
legislative act. Brodbine v. Revere, 182 Mass. 598, 602; Com-
monwealth v. Sisson, 189 Mass. 247.

In the present instance, the examination of the various kinds
of mechanical appliances for the purpose of determining which
and how many of them conform to the requirements of the
laws of the Commonwealth and may, therefore, be used in pri-
maries and elections, is clearly a detail of administration the
determination of which may properly be delegated by the Leg-
islature to a subordinate tribunal.

In reply to your second inquiry, I am of opinion that the
proposed act as submitted to me indirectly requires the State
Ballot Law Commission to approve only such machines as ful-
fill the requirements of the primary and election law, but does
not directly do so, since they are required only to "make and
file with the secretary of the commonwealth their report on such
machines, ballot boxes and counting apparatus as in their judg-
ment conform to the requirements of law." I suggest in the
interests of clearness that this provision be made to read that
"they shall file with the secretary of the commonwealth their
approval in writing of all machines, ballot boxes and counting

JAMES M. SWIFT, ATTORNEY-GENERAL. 511

apparatus which in their judgment conform to the requirements
of law," and that the words "and of the preceding" be inserted
before the word "section" in Hne 15 of section 2 of the proposed
act.

Board of Railroad Commissioners — Procedure — Ques-
tions OF Law or Fact — Rulings.

The provision of St. 1906, c. 463, Part III., § 157, that the Supreme Judicial Court
or the Superior Court shall have jurisdiction in equity "to re\'iew, annul,
modify or amend the rulings of any State board or commission relative to
street railways ..." does not require the Board of Railroad Commissioners
to make formal rulings upon questions of law or issues of fact with respect
to which the performance of their duties does not call upon them to make a
decision.

If, however, the determination of a question of law is involved in the decision of
the Board upon any matter of administration properly before them, they
may express such determination in the form of a ruling.

You have requested my opinion as to whether it is consistent "^^^^i^^^
with the functions of the Board of Railroad Commissioners to Commiasionere
make specific findings upon certain requests for rulings pre- ^^"'"'^^ ^°"
sented to them by counsel under the circumstances set forth in
your communication of March 11, as follows: —

In a communication dated Nov. 16, 1910, Hon. Walter Parley Hall,
former chairman of this Board, requested the opinion of the Attorney-
General upon certain questions arising in connection with two petitions
then pending before this Board, one being the petition of the city of
Worcester for approval of authority granted to the Worcester Consolidated
Street Railway Company to act as common carrier of baggage and freight
in that city, and the other being the petition of the Worcester Merchants'
Association that the Worcester Consolidated Street Railway Company
be requu-ed to act as common carrier of baggage and freight in the city of
Worcester. In reply to this communication an opinion was rendered by
Hon. Dana Malone, Attorney-General at that tune, under date of Dec. 27,
1910.

On Nov. 29, 1911, a conference was held by the Board in relation to
the pending petition of the Worcester Merchants' Association, which was
attended by representatives of the Worcester Merchants' Association and
of the Worcester Consohdated Street Railway Company, and also by
Mr. E. H. Vaughan, representing the city of Worcester. On Dec. 1, 1911,
two sets of requests for ruUngs of law were filed by Mr. Vaughan, copies

512 OPINIONS OF THE ATTORNEY-GENERAL.

of which are enclosed herewith. Subsequently, on Dec. 4, 1911, the
Board issued an order, a copy of which is also enclosed.

The statute under which this proceeding was instituted is
St. 1907, c. 402, § 1, which provides that —

A street railway company may become a common carrier of newspapers,
baggage, express matter and freight in such cases, upon such parts of its
railway, and to such extent, in any city or town, as, after pubhc notice
and a hearing, upon the petition of any interested party, the board of
aldei"men or the selectmen in such city or town and the board of railroad
commissioners shaU by order approve. If the board of aldemien or
selectmen to whom such a petition is presented act adversely thereon or
fail to act within sixty days from the date of the filing of such petition the
petitioner or any interested party may file such petition -with the board of
railroad commissioners, who shall after public notice and a hearing deter-
mine whether public necessity and convenience require the granting of
such petition and shall make an order dismissing such petition or requiring
any street railway company named in such petition to act as such common
carrier in such cases, upon such parts of its railway and to such extent,
and under such regulations and restrictions, as in the opinion of said rail-
road commissioners pubUc necessity and convenience require. Any
street railway company acting under authority hereof shall be subject to
such regulations and restrictions as may from time to time be made by the
local authorities aforesaid, with the approval of the raihoad commis-
sioners, and shall also be subject to the provisi6ns of all laws now or here-
after in force relating to common carriers so far as they shaU be consistent
herewith and with said regulations and restrictions. The authority con-
feiTed upon any street railway company by virtue of the provisions of
this act may at any time be revoked or terminated in any citj'- or town or
upon any part of its railway, by the board of aldermen or selectmen with
the approval of the board of railroad commissioners.

The principal contentions of the city of Worcester were, first,
that the board of aldermen had not acted adversely and had
not neglected to act w'ithin the meaning of the statute above
quoted, and that the Board of Railroad Commissioners should
have considered the petition which was originally presented to
the board of aldermen and not the subsequent petition pre-
sented by the Worcester Merchants' Association; and, second,
that as matter of law said Board w^as authorized to approve a

JAMES M. SWIFT, ATTORNEY-GENERAL. 513

I limited franchise. In accordance with the opinion of the At-
torney-General hereinbefore referred to, however, the Board
took no action with respect to the petition of the \Yorcester
Consohdated Street Railway Company, upon which the board
of aldermen had acted, and issued an order in the usual form
and without any limitation as to the duration of the franchise
upon the petition presented by the Worcester Merchants' As-
sociation.

The rulings submitted for my consideration are obviously in-
tended to raise the contentions of the city in various forms,
doubtless with a view to further proceedings under the provi-
sions of St. 1906, c. 463, Part III., § 157, which is as follows: —

The supreme judicial court or the superior court shall have jurisdiction
in equity, upon the petition of a street raihvay company, or of the board of
aldermen of a city or the selectmen of a town in which the street railway
is located, or of any interested party, to compel the observance of and to
restrain the violation of all laws which govern street railway companies,
and of all orders, rules and regulations made in accordance ^vith the pro-
visions of this chapter by the board of aldermen of a city, the selectmen of
a town or the board of railroad commissioners, and to review, annul, modify
or amend the rulings of any state board or commission relative to street
railways as law and justice may requhe.

See Kilty v. Railroad Commissioners, 184 ]\Iass. 310.

It may be doubted whether the use of the word "rulings" in
this section was intended to include rulings other than those
necessarily involved in or inferred from the determination of
administrative questions and the action of the Board conse-
quent thereon, but even if it may be extended to formal rulings
upon questions of law requested by parties, the statute does not
purport to require that such rulings shall be given by the
Board. Moreover, I am of opinion that since the Board of
Railroad Commissioners deal primarily with matters of ad-
ministration, it may be said to be in general inconsistent with
their functions to make formal rulings upon questions of law or
issues of fact upon which the performance of their duties does
not require them to make a decision. Upon the other hand,
where the determination of a question of law is involved in the

514

OPINIONS OF THE ATTORNEY-GENERAL.

decision of the Board upon any matter of administration prop-
erly before them, I see no reason why they may not express
such determination in the form of a ruHng, and to that extent
the making of ruhngs of law is consistent with the functions of
the Board.

To the Com-
missioners on
Fisheries and
Game.
1912
March 19.

Conviction — Plea of Nolo — Case placed on File —
Game Laws — Violation — Certificate of Registra-
tion.

A plea of nolo where the case is placed on file and such plea is not followed bj' a sen-
tence or other form of final judgment, is not a "con\iction" within the
meaning of St. 1911, c. 614, § 11, which provides that "every person convicted
of \'iolating the game laws shall immediately surrender to the officer who
secures such conviction his certificate of registration. . . ."

Your communication of March 9 refers to St. 1911, c, 614,
§11, which provides that —

Every person contacted of \dolating the game laws shall immediately
surrender to the officer who secures such conviction his certificate of
registration; and the officer shall forthwdth forvvard said certificate to the
commissioners on fisheries and game, who shall cancel the same and notify
the clerk issuing the certificate of registration of the cancellation. No
other certificate of registration shall be issued to such person so con%'icted
during a period of one year after the date of conviction.

and you inquire with reference thereto whether "in cases where
the defendant pleads nolo and the case is placed on file, is it,
in your opinion, a conviction within the meaning of the statute,
and should such a person be ineligible for a license within one
year?"

In reply to this inquiry I have to advise you that in my
opinion upon a plea of nolo, where the case is placed on file and
said plea is not followed by any sentence or other form of final
judgment, the person so pleading is not convicted within the
meaning of the statute above cited, and the provision with re-
spect to the issuance of a certificate of registration is not appli-
cable.

JAMES M. SWIFT, ATTORNEY-GENERAL. 510

Riot or Other Disturbance of the Public Peace —
County, City or Town Authorities — Duties — Suit-
able Aid — Sheriff — Mayor — Selectmen — Precept
— Discretion.

The public authorities of a county, city or town, in cases of a pubhc disturbance
with rioting or anticipated rioting, are required to use the utmost of the
powers within their control for the enforcement of the laws and the preserva-
tion of the peace.

Since a sheriff, in cases where actual rioting exists or is imminently threatened,
may require, under the provisions of R. L., c. 23, § 14, suitable aid in the
preservation of the peace, he may under such circumstances call such assistance
as a man of ordinary prudence, firmness and acti\'ity in his situation woiild
think necessary to quell the existing or threatened disturbance.

In cases of existing or threatened rioting, the sheriff of a county, the mayor of a
city or the selectmen of a town may issue a precept under the provisions of
St. 1908, c. 604, §§ 142-150, directed to any commander of a brigade, regiment,
battalion, corps of cadets, or company within his or their jurisdiction, requir-
ing such commander to appear and aid the civol authority in suppressing
violence and supporting the laws, the issuance of such precept being governed
by the exercise of the sound discretion, good judgment and honesty of
purpose of the sheriff or other local officer or officers in determining as a
matter of fact whether or not the local police may be able to cope with the
existing or threatened situation.

Under date of March 19 Your Excellency requests my To the

Governor.

opinion upon the following question : — „ ^.^l^^

March 20.

In case of a public disturbance, vnth. rioting or anticipated rioting, what
are the rights and duties of to-mi or city authorities, county authorities
(particularly the sheriif), the State pohce and the mihtia, with reference
to maintaining order; and how far is it the duty of the local authorities
to go before calling on the State ?

Taking up first the duties of town, city and county au-
thorities in a case such as is inquired of, they may be briefly
and comprehensively stated to be the enforcement of the laws
and the preservation of the peace. As to "how far is it the
duty of the local authorities to go before calling on the State,"
it is impossible to answer by giving any precise formula appli-
cable to every case, but it may be briefly stated to be the duty
of the local authorities to use the utmost of the powers within
their control in the enforcement of the laws and the preserva-
tion of the peace. Our laws recognize, however, that there

516 OPINIONS OF THE ATTORNEY-GENERAL.

may be occasions when town, city or county aiitliorities may
find it difficult or impossible in thus exercising their authority
to perform their full duty merely by the local officials. In the
case of actual rioting, from early times the sheriff has had au-
thority as now prescribed by R. L., c. 23, § 14, which provides
as follows : —

They [sheriffs] may require suitable aid in the execution of their office
in a criminal case, in the preservation of the peace, in the apprehending
or securing of a person for a breach of the peace and in cases of escape or
rescue of persons arrested upon civil process.

The first use of the phrase "suitable aid" as above employed
appears in chapter 20 of the Acts of the Province of INIassachu-
setts Bay in the year 1698. The phrase should be construed,
therefore, as giving the same authority as that of a sheriff under
the common law, in the light of which it is to be interpreted
unless otherwise modified by statute. Consideration of the de-
cisions in that regard discloses in each case a situation where
the breach of the peace was actually in progress, or where there
had been an outbreak, just previously, with another disturbance
expected and imminent as a reasonable certainty. I am led to
the conclusion that in order to warrant ,the sheriff in exercising
this extraordinary remedy under his common-law authority,
there must be a necessity for it because of disorders either exist-
ing at the time of his action or imminently threatened, with
apparent certainty to occur.

In addition to R. L., c. 23, § 14, hereinbefore cited, R. L.,
c. 211, § 1, further provides: —

If twelve or more persons, being armed with clubs or other dangerous
weapons, or if thirty or more persons, whether armed or not, are unlaw-
fully, riotously or tumultuously assembled in a city or town, the mayor
and each of the aldermen of such city, each of the selectmen of such to\\Ti,
every justice of the peace living in any such city or town and the sheriff
of the county and his deputies shall go among the persons so assembled,
or as near to them as maj^ be with safety, and in the name of the common-
wealth command all persons so assembled immediately and peaceably to
disperse; and if they do not thereupon iimuediately and peaceably dis-
perse, each of said magistrates and officers shall command the assistance

JAMES M. SWIFT, ATTORNEY-GENERAL. 517

of all persons there present in suppressing such riot or unlawful assenil .ly
and arresting such persons.

If there is, therefore, imminent, impending danger of a riot
or other breach of the peace, the sheriff has the power and the
j duty to call such aid as a man of ordinary prudence, firmness
I and activity in his situation would think necessary to quell the
disturbance. This use of the power to compel the aid and
assistance of citizens in general is to be used only to quell a
riot, but not to keep men for general police duty as occasion
may require.

With reference to anticipated rioting, as well as rioting al-
ready existing, the statutes have provided another method
which may be employed by either the selectmen of a town, the
mayor of a city or the sheriff of a county. These provisions
are found in St. 1908, c. 604, §§ 142-150, but so far as material
to the purposes of the present inquiry are contained in sections
142 to 145, which provide as follows: —

Section 142. In case of a tumult, riot, mob, or a body of men acting
together by force to violate or resist the laws of the commonwealth, or
when such tumult, riot or mob is threatened and the fact appears to the
commander-in-chief, to the sheriff of the county, to the mayor of the city
or to the selectmen of the town, the commander-in-chief may issue his
order, or such sheriff, mayor or selectmen may issue a precept, directed
to any commander of a brigade, regiment, naval brigade, battalion,
squadron, corps of cadets or company, within their jurisdiction; directing
him to order his command, or a part thereof, to appear at a time and place
therein specified to aid the civil authority in suppressing such violence and
supporting the laws; which precept shall be in substance as follows: —

COMMOlSrWEALTH OF MASSACHUSETTS.

To [insert the officer's title] A. B., commanding [insert his command].

Whereas, it appears to [the sheriff, mayor or the selectmen] of the [county,
city or town] of , that [here state one or more of the causes above

mentioned] in our of . and that military force is

necessary to aid the civil authority in suppressing the same: Xow, therefore, we
command you that you cause [your command, or such part thereof as may be
desired], armed and equipped with ammunition and with proper officers, to parade
at on , then and there to obey such orders as may

be given according to law. Hereof fail not at your pcrU, and have you there this
precept with your doings returned thereon.

518 OPINIONS OF THE ATTORNEY-GENERAL.

This precept shall be signed by such sheriff, mayor or selectmen, and
may be varied to suit the circumstances of the case; and a copy of the
same shall immediately be forwarded by such sheriff, mayor or selectmen
to the commander-in-chief.

Section 143. The officer to whom the ordei: of the commander-in-cliief
or biigade commander, or such precept, is directed shall forthwith order
the troops therein called for to parade at the time and place appointed, and
shall immediately notify the commander-in-chief of his order, directly
in the most expeditious manner, and by letter through the usual military
channels.

Section 144. If an officer refuses or neglects to obey such order or
precept, or if any officer or soldier neglects or refuses to obey an order
issued in pursuance thereof, he shall be punished as a com-t-martial may
adjudge.

Section 145. Such troops shall appear at the time and place ap-
pointed, armed, equipped, and with ball ammunition, and shall obey
and execute such orders as they have received, or such additional
orders as they may then and there receive from the governor, or from
an officer serving under the provisions of section one hundred and
forty-two.

With reference to the propriety of calling out the militia
by the aforesaid precept by the selectmen of a town, the mayor
of a city or the sheriff of a county, the Supreme Judicial Court
has said, in the case of Ela v. Smith, 5 Gr3,y, 121, 135, in a learned
and exhaustive opinion covering generally the subject-matter of
the present inquiry : —

In exercising the authority thus conferred, the statute makes it the
fii'st duty of the mayor or other magistrate to determine whether the occa-
sion for calling out a military force exists. This depends on a question
of fact, which it is his exclusive duty to determine. If it be made to appear
to him that a tumult or riot is threatened, he may then issue his precept.
He is, in his official capacity, and under the sanction of his oath of office,
to examine and decide this question. This provision of the statute clearly
confers a judicial power. Whenever the law vests in an officer or magis-
trate a right of judgment, and gives him a discretion to determine the facts
on which such judgment is to be based, he necessarily exercises, within
the limits of his jurisdiction, a judicial authority. So long as he acts within
the fair scope of this authority he is clothed with all the rights and immuni-
ties which appertain to judicial tribunals in the discharge of their appro-
priate functions.

JAMES M. SWIFT, ATTORNEY-GENERAL. 519

The same authority resting in the sheriff by the terms of the
statute as in the mayor of a city, the language of this decision
would equally apply to the powers and duties of the sheriff in
that regard. In said decision the court further said: —

It cannot be urged, as a valid argument against tine recognition of this
authority in civil officers, that it is liable to abuse, and may be made the
instrument of oppression. The great security against its misuse and per-
version is to be found in the discretion, good judgment and honesty of
purpose of those to whom important public duties are necessarily entrusted.
But the existence of such authority is essential in a community where
the first and most important use of law consists in preser\nng and protect-
ing persons and property from unlawful violence.

To that part of Your Excellency's question which refers to
the rights and duties of various public authorities, "with refer-
ence to maintaining order," I can perhaps do no better than to
quote further from said decision, as follow^s: —

But wliile thus recognizing the authority of civil officers to call out and
use an amied force to aid in suppressing a riot or tumult actually existing,
or preventing one which is threatened, it must be borne in mind that no
power is conferred on the troops, when so assembled, to act independently
of the civil authority. On the contrary, they are called out, in the words
of the statute, "to aid the civil authority," not to usurp its functions, or
take its place. They are to act as an armed police only subject to the
absolute and exclusive control and direction of the magistrates and other
civil officers designated in the statute, as to the specific duty or ser\nce
which they are to perfonu. The statute does not even enlarge the power
of the civil officers by giving them any military authority; but only places
at their disposal, in the exercise of their appropriate and legal functions,
an organized, discipUned and equipped body of men, capable of more
efficient action in an emergency, and among a multitude, than an ordinary
police force. Nor can the magistrate delegate his authority to the military
force which he summons to his aid, or vest in the miUtary authorities any
discretionary power to take any steps or do any act to prevent or suppress a
mob or riot. They must perfonn only such service and render such aid
as is required by the ci^-il officers. This is not only essential to guard
against the use of excessive force and the exercise of irresponsible power;
but it is required by the fundamental principles of our Constitution, which
provides that "the military power shall always be held in an exact sub-
ordination to the civil authority, and be governed by it." Declaration of

520 OPINIONS OF THE ATTORNEY-GENERAL.

Rights, Art. XVII. It does nojt follow from this, however, that the mili-
tary force is to be taken wholly out of the control of its proper officers.
They are to direct its movements in the execution of the orders given by
the civil officers, and to manage the details in which a specific ser^dce or
duty is to be performed. But the sei-vice or duty must be first prescribed
and designated by the civil authority.

It would therefore seem that the sheriff or other local officer
should use sound discretion, good judgment and honesty of
purpose in determining as a matter of fact whether or not the
local police were able to cope with a situation such as is re-
ferred to in the present inquiry. Acting with these considera-
tions in mind, such officer has the right to issue the precept
provided for in said section 142 of chapter 604 of the Acts of
1908.

The reference in said inquiry to "the State police" I as-
sume to mean the District Police, provided for by chapter 108
of the Revised Laws, and amendments thereof and additions
thereto. Section 7 of said chapter provides as follows: —

The district police shall have and exercise tlu-oughout the common-
wealth all the powers of constables, except the service of civil process, and
of police officers and watchmen. The governor may at any time command
their services in suppressing riots and in preserving the peace; but, except
as aforesaid, a member of the inspection department shall not be required
to perform any other duties than such as pertain to an inspector of fac-
tories and pubhc buildings or to an inspector of steam boilers.

Whether or not the District Police shall be employed in a
case such as is inquired of is a matter of policy and discretion
to be determined by the exercise of the judgment of the person
upon whom the duty falls to so determine, under the circum-
stances of each particular case. No specific rule or formula
can be definitely given beyond the use of the best judgment pos-
sible under the circumstances at the time.

March 28.

JAMES M. SWIFT, ATTORNEY-GENERAL. 521

Constitutional Law — Money raised by Taxation — Ai--
PROPRiATioN — Public Purpose — Homes for Mechan-
ics, Laborers or Other Wage Earners.

A proposed bill authorizing the commission established by St. 1911, c. 607, to
purchase in the name of the Massachusetts Homestead Commission an(i
"for the purpose of providing homes for mechanics, laborers or other wage
earners," and appropriating money therefor, would be unconstitutional if
passed, since it involves the expenditure of public money for a private
purpose. 1

On behalf of the Committee on Ways and Means you have To the House
submitted for my consideration a draft of a bill entitled "An vvays"a"<r°°
Act to extend and define the duties of the Homestead Com- ,. 1912,
mission," accompanying the special report of the Homestead
Commission, House Document Xo. 441, and have orally
brought to my attention certain inquiries with reference to the
constitutionality of the provisions of said bill, with the request
that I advise your committee thereon.

With reference to that part of section 3 which provides as
follows: —

The treasurer and receiver-general is authorized to loan the commission
from time to time such sums as it may certify to him in writing to be
necessary to carry out the purposes of this act, except for the expenses
incurred under section five, from the funds deposited by the savings banLs
in the treasury of the commonwealth under the provisions of section fifty-
six of chapter five hundred and ninety of the acts of the year nineteen hun-
dred and eight, and subject to the restrictions of said act —

I am of the opinion that there is no constitutional objection.
Said money in the hands of the Treasurer is public money
available for public purposes, according to law. If the purpo.se
for which it is to be expended in this case is a lawful, public
purpose it may be deemed available, as provided in said section.
As to section 1 of said bill, which provides as follows: —

The commission established by chapter six hundred and seven of the
acts of nineteen hunched and eleven shall be authorized to purcha.se in
the name of the Massachusetts Homestead Commission a tract or tracts

1 See Opinion of the Justices, 211 Mass. 624.

522 OPINIONS OF THE ATTORNEY-GENERAL.

of land for the purpose of providing homes for mechanics, laborers, or
other wage-earners, and shall have authority to sub-divide, improve,
build upon, lease, rent, sell, re-purchase, manage, and care for said tract
or tracts and the buildings constructed thereon, in accordance with such
terms and conditions as may be determined upon by the commission, due
consideration being given to the proper laying out of streets, parks, garden
areas, and buildings for recreation or other public purposes ; and the com-
mission shall make such regulations, restrictions, and reservations in con-
tracts, leases, deeds, and otherwise as may be necessary for the protection
of said tract or tracts from any objectionable use. Each person holding
property under the jurisdiction of the commission shall be the owner of at
least five shares of stock as hereinafter provided for, before being permitted
to occupy or acquire title to any of said real estate; provided, however,
that the conmiission in exceptional cases may temporarily waive the afore-
said requirement as to ownership of stock prior to occupancy —

different principles have to be considered. In the first place,
the purpose stated in said section is "providing homes for me-
chanics, laborers or other wage-earners." This limits the bene-
fits of said act to certain definite classes, thereby taxing the
public in general for a certain favored class, without disclosing
any substantial reason for such class legislation. If this objec-
tion should be cured by an amendment which included any
citizen instead of members of these particular classes, there re-
mains the further and more fundamental, question as to whether
the expenditure provided for in this proposed act is an expendi-
ture for public purposes.

The principle governing such consideration was long ago
stated by the Supreme Court of this Commonwealth, in Lowell
V. Boston, 111 Mass. 454 (see, also, Loan Association v. Topeka,
20 Wall. 655; ante, p. 305). Among other things it was therein
pointed out, at page 461 : —

It is the essential character of the direct object of the expenditure which
must determine its vaUdity as justifying a tax, and not the magnitude
of the interests to be affected, nor the degree to which the general advan-
tage of the community, and thus the pubhc welfare, may be ultimately
benefited by their promotion.

Applying the principle of that case to the bill under con-
sideration, it appears that the direct object of the expenditure

JAMES M. SWIFT, ATTORNEY-GENERAL. 523

of the public money herein provided for is the purchase of land
and the erection of homes for laborers, mechanics and wage-
earners. The public benefit alleged is the improvement of the
health and morals of the community. It appears, however,
that this alleged public benefit is so remote and incidental that
it cannot outweigh the real character of the direct object of the
expenditure, which appears to be fundamentally for private
rather than public purposes.

While I am of the opinion that under the limitation of the
decisions as they now stand these provisions are unconstitu-
tional, it is impossible for me to say how far our Supreme
Judicial Court might go in approving legislation purporting to
be enacted for the public welfare and for the betterment of
health and morals, it being in each case largely a question of
degree. There is at least grave doubt as to the constitution-
ality of said section 1.

Town — Note payable "during the Year 1912" — Date

OF Payment.

A note of a town payable "within the year 1912" is in effect a note payable at a
future date certain, or earlier at the option of the maker, and therefore does
not comply with the requirement of St. 1910, c. 616, § 1, that a town note
shall state "the date when it will become due for payment."

You have requested mv opinion as to whether you may xo^tho

, , J . . . , Director of

"properlv certifv a note of a town made payable within the the Buroau

^ ^ «' ^ * of Stiiti.slici).

year 1912,' under the provisions of chapter 616, Acts of 1910, ^1^012^
section 1 of which provides that the note shall state 'the date
when it will become due for payment.' "

A note payable "within the year 1912" is, in effect, a note
payable at a future date certain, or earlier at the option of the
maker, and so is not payable at any fixed or determinable
future time. Mahoney v. Fitzpatrick, 133 Mass. 151; Stults v.
Silva, 119 Mass. 137; Way v. Smith, 111 Mass. 523. And see
Richards v. Barloic, 140 Mass. 218. It does not comply, there-
fore, with the requirement of St. 1910, c. 610, § 1, that a town
note shall state "the date when it will become due for pay-
ment," and you should not certify it.

524 OPINIONS OF THE ATTORNEY-GENERAL.

License — Engineer — Steam Boiler — Owner or User
— Operation — Unlicensed Person — Coal Shovel-

ERS.

The provision of R. L., c. 102, § 8, as amended by St. 1907, c. 373, § 1 and St. 1911,
c. 562, § 1, that "the owner or user of a steam boiler or engine . . . shall
not operate or cause to be operated a steam boiler or engine for a period of
more than one week, unless the person in charge of and operating it is duly
licensed," allows such owner or user, in the exercise of good faith and in an
unavoidable emergency, a period of one week within which to procure a
person licensed in accordance with the requirements of law; and by the use
of such period, the owner or user is not thereafter forever prohibited from
availing himself under like conditions of such allowance.

The provision of R. L., c. 102, § 80, as amended by St. 1911, c. 562, § 2, that "to
work with a licensed person there may be employed not more than one
unlicensed person, who, in the presence and under the personal direction of
the licensed person, may operate the appurtenances of a boiler or engine,"
does not require that coal shovelers, whose sole duty consists in putting coal
under the boiler, should be licensed, since coal shovelers, or other persons
performing the duties of mere laborers in handling coal used in the operation
of a boiler or boilers, are not operating any appurtenances thereof.

of^the^Dis-*^^ Under date of April 6 you have written me with reference to

trict^Poiice. sections 78, 79 and 80 of chapter 102 of the Revised Laws, as
amended by chapter 373 of the Acts of 1907 and by chapter
562 of the Acts of 1911, requesting my opinion upon the fol-
lowing matters: —

April 8.

First, the last clause of section 78 reads as follows : —

The owner or user of a steam boiler or engine, other than boilers or engines
above excepted, shall not operate or cause to be operated a steam boiler or engine
for a period of more than one week, unless the person in charge of and operating
it is duly licensed.

Is it to be understood that the owner or user of a steam boiler or engine,
who from necessity has employed a person not duly Ucensed for a period of
one week, is forever after prohibited from such provision of section 78 in
connection with the use of the same boiler or boilers; or could he be per-
mitted, after a reasonable period of time, to again take advantage of this
provision?

Second, the last clause of section 80 reads as follows: —

provided, however, that to work with a licensed person there may be employed
not more than one unlicensed person who, in the presence and under the personal
direction of the licensed person, may operate the appurtenances of a boiler or
engine.

JAMES M. SWIFT, ATTORNEY-GENERAL. 525

Under the provisions of tliis clause are we to understand that there
must be one hcensed fii-eman who operates the appurtenances of a boiler,
and who is allowed one helper, who may be unlicensed, to operate any
appurtenances of a boiler or boilers, and also that an unlimited number of
coal shovelers may also be employed, whose duty solely consists in putting
coal under the boiler in a large boiler plant?

In my opinion with reference to the first inquiry, your sug-
gestion of a possible construction that the owner or user of a
steam boiler, who had employed a person not licensed for the
period of one week, might be forever after prohibited from
taking advantage of the provision of section 78 in that regard,
would be a most unreasonable construction. Taking said sec-
tion 78 in connection w4th section 79, which provides that —

If such steam engine or boiler is found to be in charge of or operated by
a person who is not a duly licensed engineer or fireman and, after a lapse
of one week from such time, it is again found to be operated l:»y a person
who is not duly licensed,, it shall be deemed prima facie evidence of a viola-
tion of the provisions of the preceding section —

It is obvious that this provision w^as intended for emergencies,
so that a person in the exercise of good faith, and in an un-
avoidable emergency, might be allowed one week in Avhich to
provide himself with a licensed person within the requirements
of the law\ The object of the provision would not be accom-
plished if the right therein given is exhausted by its operation
for one w^eek and then forever prohibited.

With reference to the second inquiry, the question seems to
be practically governed by an opinion of Attorney-General
Knowlton, II Op. Atty.-Gen. 62. I am of the opinion that
within the limits of your inquiry there must be one licensed
person, either fireman or engineer, who operates the appur-
tenances of a boiler, and who is allowed one helper who may
be unlicensed. There may also be an unlimited number of
coal shovelers, whose duty consists solely in putting coal under
the boiler. It was ruled in said opinion of Attorney-General
Knowlton "that licenses are not required for mere laborers,
whose duties require no skill and involve no responsibility."

526 OPINIONS OF THE ATTORNEY-GENERAL.

Since that opinion the statute has been changed so that it
provides that it shall be unlawful for any person to have charge
of or to operate the a'pinirtenances of a boiler as well as the
boiler or engine itself. This does not, in my opinion, change
the conclusion reached by Attorney-General Knowlton. I know
of no use of the word "appurtenances" which would include
coal within that term. Coal shovelers or coal hoisters, or other
persons performing duties of mere laborers with reference to
the coal used in the operation of boilers, are not in my opinion
operating any appurtenances thereof.

Constitutional Law — Police Power — Competition —
Purpose to injure or destroy Business of a Rival —
Discrimination — Lowering of Prices in one Locality
BY A Person, Firm, Association or Corporation en-
gaged in Business in Several Localities — " Unfair
Discrimination."

The purpose to injure or destroy the business of a rival by competition is not
illegal.

A proposed act providing that "any person, firm, association or corporation . . .
engaged in the production, manufacture or distribution of any commodity
in general use, that shall intentionally, for the purpose of destroying the
business of a competitor in any locality, discriminate between different
sections ... of this Commonwealth, or between purchasers, by selling such
commodity at a lower rate for such purpose in one section . . . than is
charged in another section . . . shall be deemed guilty of unfair discrimina-
tion, which is hereby prohibited and declared unlawful", in effect renders
unlawful all competition in any locality entered into for the purpose specified
by a person, firm, association or corporation carrj-ing on business in more
than one such locality.

The prohibition in such proposed act is not limited to discrimination entered
upon maliciously or for the purpose of destroying the business of competitors
in order to create a monopoly or for any other illegal purpose, and therefore
discloses no sufl!icient distinction between the acts of discrimination pro-
hibited and other acts of discrimination or competition not prohibited to
justify such prohibition as a valid exercise of the police power.

Such proposed act, therefore, if passed, would be unconstitutional and void.

commiuee'on On behalf of the Committee on Bills in the Third Read-
ThirdReading. ing you havc submitted for my consideration a proposed
Aprii^23. bill entitled "An Act to prohibit discrimination in the sale

JAMES M. SWIFT, ATTORNEY-GENERAL. 527

of commodities," and requested my opinion upon its consti-
tutionality.

The first section of the bill in question is as follows: —

Any person, finn, association or corporation, foreign or domestic, doing
busmess in the commonwealth of IMassachusetts and engaged in the pro-
duction, manufacture or distribution of any commodity in general use,
that shall intentionally, for the purpose of destroying the business of a
competitor in any locahty, discriminate between different sections, com-
munities, towns or cities of this commonwealth, or between purchasers,
by sellmg such conunodity at a lower rate for such purpose in one section,
conmiunity, town or city than is charged for said commodity by the
vender in another section, community, towoi or city in the commonwealth,
after making due aUowance for the difference, if any, in the grade or quality
and in the cost of transportation, shall be deemed guilty of unfair discrimi-
nation, which is hereby prohibited and declared unlawful.

There are other sections which define offences, provide for
their prosecution and prescribe penalties, but in view of the
conclusion hereinafter stated it is unnecessary to refer to them
in detail.

The bill is undoubtedly designed to invoke the police power
to prohibit a discrimination in prices between different localities
in the Commonwealth, or between purchasers in different lo-
calities, where prices have been lowered in one locality for the
purpose of destroying the business of a competitor in such
locality, and in effect to render unlawful competition in a single
locality entered into by a person, firm, association or corpora-
tion carrying on business in more than one locahty. Like dis-
crimination, induced by any other purpose or motive, is not
illegal.

The fundamental question presented by the inquiry of the
committee is, therefore, whether the definition of unfair dis-
crimination in the section of the bill above quoted is grounded
upon a reasonable distinction with reference to other forms of
discrimination or competition so as to permit a valid e.xercise
of the police powder in the premises.

As above stated, discrimination is "unfair," and therefore
prohibited, only when it arises from a lowering of prices in a

528 OPINIONS OF THE ATTORNEY-GENERAL.

given locality "intentionally, for the purpose of destroying the
business of a competitor;" but since in the conduct of business
competition, which gives to one what it takes from another,
must inevitably result in the destruction in whole or in part
of the business of a rival, the specified purpose, to a greater
or less extent, is inseparable from all competition. In itself,
moreover, the purpose to injure the business of a rival by com-
petition is not illegal. Martell v. WhUe, 185 Mass. 255, 260;
Plant V. Woods, 176 Mass. 492, 501; Boiven v. Matheson,
14 Allen, 499. And see Commonwealth v. Hunt, 4 Met. Ill,
134. And this is true even where the injury sought to be
accomplished is the destruction of the business and the conse-
quent ruin of a competitor. Martell v. White, suyra, p. 261.
It follows, therefore, that neither the act of discriminating nor
the purpose which brings the act within the prohibition of the
bill, if separately considered, is illegal. On the contrary, the
public policy of the Commonwealth has recognized and justified
competition in business and has expressly declared that every
contract, agreement or combination which restrains or prevents
competition in the supply or price of any article or commodity
is against public policy and is illegal and void. St. 1908, c. 454.
See Vegelahn v. Guntner, 167 Mass. 92; Commonwealth v. Hunt,
4 Met. Ill, 134.

The police power extends to all matters which affect the lives,
limbs, health, comfort and welfare of all in their persons and
property {Commomvealth v. Bearce, 132 Mass. 542, 546) and
the Legislature may enact "such reasonable regulations as they
may judge necessary to protect public and private rights, and
to impose no larger restraints upon the use and enjoyment of
private property, than are in their judgment strictly necessary
to preserve and protect the rights of others." Commonwealth
V. Alger, 7 Cush. 53, 102.

There are, however, limitations upon this power. Thus, in
O'Keeffe v. Somerville, 190 Mass. 110, the court, in speaking
of the regulation of the ordinary transactions of business (in
this case the imposition of an excise tax upon the selling or

JAMES M. SWIFT, ATTORNEY-GENERAL. 529

giving of trading stamps in connection with the sale of articles,
which was held invalid), said, at page 114: —

One of the reasons why these methods are allowable is found in the
famihar principle that constitutional hberty means "the right of one to
use his faculties in all lawful ways, to live and work where he will, to earn
his hvelihood in any lawful calling, and to pursue any lawful trade or
avocation." The restrictions upon conduct wliich may be imposed in the
exercise of the pohce power include everji^hing that maj^ be neccssaiy in
the interest of the public health, the public safety or the pubhc morals,
and they include nothing more. These doctrines have often been discussed
and elaborated, and it is unnecessary to consider them at length in this
case.

To constitute the bill now before me a proper exercise of the
police power, therefore, it must appear that the public health,
the public safety or the public morals require protection against
competition when it takes the form of a discrimination in the
price of a commodity between localities or purchasers in dif-
ferent localities which is unnecessary where competition does
not result in such discrimination. The right primarily pro-
tected is the right of the competitor in a locality against which
the discrimination is directed to be free from competition, a
right which does not exist at common law {Walker v. Cronin,
107 Mass. 555; Martell v. White, 185 Mass. 255), and which
contravenes the established public policy of the Commonwealth.
Such being the purpose and eflfect of the bill submitted to me,
I am constrained to say that in its present form it discloses no
sufficient distinction betw^een the acts prohibited and other
forms of competition which the law not only permits but en-
courages, and that in my opinion, if enacted, it would not con-
stitute a valid exercise of the police power.

Legislation, substantially like the bill now before your com-
mittee, has been twice considered by courts of last resort. In
State V. Drayton, 82 Nebr. 254, a statute almost identical in
terms was upheld upon the ground that it "was enacted for
the purpose of supplying a defect in the anti-trust laws of the
State," upon an information charging that the defendant "did

530 OPINIONS OF THE ATTORNEY-GENERAL.

unlawfully, maliciously and intentionally, for the purpose of
destroying the business of a competitor . . . discriminate be-
tween different sections of the State," and both the prosecuting
ojBBcer and the court treated the statute as if the word "mali-
ciously" was a part of it, and as if the purpose which made the
discrimination unfair and therefore unlawful was the purpose
of destroying the business of a competitor "in order that the
wrongdoer may have a monopoly" (page 264).

In State v. Central Lumber Co., 24 So. Dak. 136, the statute
under consideration made discrimination unlawful when such
discrimination was for the purpose of "destroying the competi-
tion of any regular, established dealer ... or to prevent the
competition of any person who in good faith intends and at-
tempts to become such dealer," and the court again treated the
statute as if it were directed against monopolies.

If the bill in question were in terms directed against discrim-
ination entered upon maliciously or for the purpose of destroy-
ing business in order to create a monopoly, a very different
question would be presented, and if enacted, it might well be
treated as supplying a defect in the anti-trust laws of the Com-
monwealth. No such limitation, however, is to be found in it
in its present form. Section 1 doubtless, includes a person, firm,
association or corporation which discriminates in prices for the
purpose of creating a monopoly, but it also extends to and in-
cludes persons who discriminate in the course of lawful and
proper competition, with the purpose of destrojang the business
of competitors, so far as competition may destroy it, for their
own benefit, without any malicious or unlawful intent to injure
the public by creating a monopoly in the sale of the commodi-
ties in which they deal. This unlawful purpose is, in my
opinion, essential to distinguish the acts sought to be pro-
hibited and to afford a reasonable basis for regulation under
the police power.

JAMES M. SWIFT, ATTORNEY-GENERAL. 531

Constitutional Law — Amendment to Constitution —
Taxation — Wild or Forest Lands — Standing Wood
AND Timber.

A proposed constitutional amendment, giving to the General Court full power and
authority "to prescribe for wild or forest lands such methods of taxation as
will develop and conserve the forest resources of the Commonwealth," if
adopted would permit the enactment by the Legislature of taxation laws
with reference to woodlands and wood lots without regard to their size so
long as said wood lots or woodlands were wild and forest lands; that is, in
a state of nature and uncultivated except for the purpose of producing wood
and timber.

The term "wild or forest lands" does not include a tract of woodland located within
fence premises of which the principal use is for pasturage.

The technical signification of the term "wild or forest lands" has never been
established or defined by the courts of this Commonwealth. The term
"standing wood and timber" has not received, either in the statutes of this
Commonwealth or in the decisions of the court, a fixed or technical definition
of universal or even of general application.

The proposed amendment to the Constitution, which would confer upon the
General Court full power and authority to prescribe for wild or forest lands
"such methods of taxation as will develop and conserve the forest resources
of the Commonwealth," would authorize the enactment of laws to pro\'ide
that wild or forest lands should be taxed without reference to the element of
value contributed by the growth thereon, and that the tax upon the value
of such growth might be reduced or altogether omitted in the determination
of the tax to be assessed upon said lands.

I have the honor to acknowledge the receipt of an order To the Houae

" _ , ot Represent-

adopted by the Honorable House of Representatives on April stives.
12, requesting my opinion upon certain questions "in respect ^^°y '•
to the constitutional amendment, relative to the taxation of
wild or forest lands, now pending in the House of Repre-
sentatives and contained in House Resolve No. 19S2." This re-
solve, which was duly passed by the Legislature of last year,
is as follows : —

Full power and authority are hereby given and granted to the general
court to prescribe for wild or forest lands such methods of taxation as will
develop and conserve the forest resources of the commonwealth.

The specific questions submitted to me by the Honorable
House of Representatives are as follows : —

1. Does the amendment as at present drafted include all wood lots and

woodlands irrespective of their size?

532 OPINIONS OF THE ATTORNEY-GENERAL.

2. Does the amendment as drawn discriminate against small wood
lots and include only large tracts of woodland?

3. Does the term "wild land" include small wood lots?

4. Does the amendment as drawn pennit the enactment of taxation
laws by the Legislature with reference to wood lots and woodlands regard-
less of their size?

5. Does the term "wild or forest lands" include a tract of woodland
located within fenced premises whose principal use is for pasturage ?

6. Is the terai "wild or forest lands " a term of well-known legal significa-
tion estabhshed by any decision of any court of last resort in the United
States ?

7. Is the term "standing wood and timber" a term of well-known
legal signification established by various decisions of courts of last resort
in the United States ?

8. Does the amendment as drawn pennit the enactment of laws to
tax the land and exempt or reduce the tax on the growing timber which
stands upon it?

The proposed amendment is broad in terms and is designed
to afford the Legislature comprehensive authority to adopt for
wild or forest lands such methods of taxation as in their judg-
ment may best develop and conserve the forest resources of the
Commonwealth. So far as I am aware, the term "wild or
forest lands" has never been precisely defined by either the
court or the Legislature of this Commpnwealth, but the term
''wild land" is well known to the law, and has been often dis-
cussed and its signification definitely determined in connection
with writs of dower and writs of entry or actions of tort for
trespass. In these connections it has been defined as land in
a state of nature, and includes marsh land, sprout land and
woodland. Conner v. Shepherd, 15 Mass. 164; Wehh v. Town-
send, 1 Pick. 21; Richmond Iron Works v. Wadhanis, 142 Mass.
569. Such land does not cease to be wild land, even when used
as an appendage to a cultivated farm for the purpose of pro-
curing fuel and timber. White v. Willis, 7 Pick. 143; White
V. Cutler, 17 Pick. 248. The term "forest land" does not seem
to have been directly considered by the court. As used in the
proposed amendment, above quoted, however, it probably does
not differ greatly in meaning from the term "wild land," which
precedes it. The word "forest," alone, has been defined to be —

JAMES M. SWIFT, ATTORNEY-GENERAL. 533

A tract of land covered with trees; a wood, usually one of considerable
extent; a tract of woodland with or without enclosed interv^als of open
and uncultivated ground. — Century Dictionary and CYCLOPiEoiA.

In the case of White v. Cutler, 17 Pick. 248, Chief Justice
Shaw, in discussing the right of dower of a widow in wild and
uncultivated land, uses the terms "forest lands" and "wood-
lands" interchangeably: —

These reasons apply as well to the case of a wood lot situated in the
midst of a cultivated country, as to forest lands in their original state.
But the chief justice, in delivering the opinion of the court in this case
{Conner v. Shepherd, 15 Mass. 164), takes care in terms to hmit its opera-
tion to the case of woodlands not used or connected with a cultivated
farm, or other improved estate.

It is well established that wild land does not lose its character
by being kept and used by its owners for the purpose of raising
wood for profit. White v. Cutler, 17 Pick. 248. See Slater v.
Jepherson, 6 Cush. 129; Morris v. Callanan, 105 Mass. 129. In
my opinion the term "wild land," as defined by the court,
would include forest land, with the possible exception that the
term "forest lands" may include land planted and cultivated
for the purpose of producing trees in sufficient numbers to con-
stitute such land forest land.

Replying specifically to the first, second, tliird and fourth
questions submitted by the Honorable House of Representa-
tives, I am of opinion that the amendment as at present drafted
would permit the enactment by the Legislature of taxation laws
with reference to wood lots and woodlands, without regard to
their size, so long as said wood lots or woodlands Avere wild or
forest lands within the definition already made; that is. land
in a state of nature, and uncultivated except for the purpose
of producing wood and timber. It is to be observed that the
amendment as at present drafted is permissive only, and,
strictly speaking, cannot be said to include or exclude any par-
ticular kind or class of wood lots or woodlands. The foregoing
answer, however, is based on the assumption that the Honorable
House of Representatives desires my opinion upon the question

534 OPINIONS OF THE ATTORNEY-GENERAL.

of whether or not said amendment would permit the enactment
of laws which should include wood lots and woodlands without
reference to their extent.

It has been held upon a writ of dower that wood and pasture
land occupied as such and used in connection with a homestead
should not be considered as wild and uncultivated land {Shat-
tnck V. Gragg, 23 Pick. 88), and it is, in my opinion, at least
doubtful if the term "wild or forest lands" would be held to
include a tract of woodland located within fenced premises, of
which the principal use was for pasturage. The question pre-
sented is chiefly one of fact, to be determined by the circum-
stances in each particular case. Speaking generally, however,
and upon the assumption that the principal use of the tract is
for pasturage, which is more or less inconsistent with the pro-
duction and growth of forests, I am of opinion that the fifth
question of the Honorable House of Representatives should be
answered in the negative.

In respect to the sixth question of the Honorable House of
Representatives, I have already stated that the courts of this
Commonwealth have never established and defined the tech-
nical signification of the term "wild or forest lands," and I am
not aware nor have I been advised of any decision of a court of
last resort in any other State which establishes a general legal
signification of that precise term.

To the seventh inquiry submitted by the Honorable House
of Representatives I reply as follows: the terms "standing
wood" and "standing timber" have been frequently defined
by courts of last resort in the several States, but such decisions
have been directed to the construction of the respective terms
in specific legislative enactments, in deeds or grants, or in con-
tracts, and have defined such terms with reference to the con-
text in which they are found and to the purpose which the
instrument was designed to accomplish, and so do not estabHsh
for them fixed and definite legal significations which would be
applicable wherever the words may be found. Thus, for ex-
ample, in Strout v. Harper, 72 Me. 270, where it was held that
in a deed a reservation of "all the standing wood upon the lot,

JAMES M. SWIFT, ATTORNEY-GENERAL. 535

together with the right to enter and remove the same at any-
time within three years," included trees suitable for timber as
well as trees suitable only for fuel, the court saying (page 273) : —

Tme, the word "wood" is often used to designate fuel. But when so
used it means fuel wholly, or, at least, partially, prepared for the fire.
The term "standing wood" cannot be so used. It can apply only to
trees. And when there is nothing ia the context, or in any other part of
the deed, to indicate that it is used in a more hmited sense, we thuik it
must be held to include all the trees, — trees suitable for tunber as well
as those fit only for firewood.

x\nd see Shiffer v. Broadhead, 126 Penn. St. 260; Haskell v.
Ayers, 35 Mich. 89; Wilson v. State, 17 Tex. App. 393; O'llan-
lan V. Denvir, 81 Cal. 60; Domcorth v. Sawyer, 94 Me. 242. In
this Commonwealth standing wood and timber are mentioned
occasionally in the statutes. See R. L., c. 134, § 11; c. 208, § 7;
St. 1869, c. 249. And more frequently in the decisions of the
court. See White v. Foster, 102 Mass. 375; Drake v. Wells, 11
Allen, 141; Fletcher v. Livingston, 153 Mass. 388; Worthen v.
Garno, 182 Mass. 243. But the term "standing wood and tim-
ber" has not received, either in the statutes or in the opinions
of the court, a fixed or technical definition of universal, or even
of general, application.

The eighth inquiry of the Honorable House of Representa-
tives is so phrased as to leave me in some doubt as to the exact
question upon which my opinion is desired. Limiting my reply
to the precise terms of said inquiry, however, I have to advise
the Honorable House of Representatives that the proposed
amendment, which would confer upon the General Court full
power and authority to prescribe for wild or forest lands "such
methods of taxation as will develop and conserve the forest
resources of the Commonwealth," would doubtless authorize the
enactment of laws to provide that wild or forest lands should
be taxed without reference to the element of value contributed
by the growth thereon, and that the tax upon the value of such
growth might be reduced or altogether omitted in the deter-
mination of the tax to be assessed upon said lands.

536 OPINIONS OF THE ATTORNEY-GENERAL.

Gypsy and Brown-tail Moths — State Forester — Work
OF Destruction of Moths — Co-operation with Pri-
vate Individuals — Supplies.

Under the pro\asions of St. 1905, c. 381, § 3, as amended by St. 1906, c. 268, § 1,
and St. 1908, c. 591, § 1, providing that the superintendent for the suppression
of the gypsy and brown-tail moth, among other things, "may act in co-
operation with any person, persons, corporation or corporations, including
other states, the United States or foreign governments," and "may devise,
use and require all other lawful means of suppressing or preventing said
moths," the State Forester, who succeeds to the powers of the superintendent
for the suppression of the gypsy and brown-tail moth under the pro\'isions
of St. 1909, c. 263, when actually engaged in the work of destroying such
moths in a given locality may co-operate with adjacent landowners, who
are carrying on work upon their own premises in conjunction with the public
work, by furnishing them at cost supplies to be actually used in such work,
or may authorize the local superintendent to furnish such supplies as his
agent.

Forestef*^** Your letter of May 2 submits for my consideration an inquiry

May 13. ^^ to whether, under the provisions of St. 1905, c. 381, § 3, you

are authorized to permit local superintendents to sell supplies
to property owners at cost, said supplies to be used only for
the purpose of suppressing the gypsy and brown-tail moths on
their own property. You state that with the approval of the
Governor you have already established a supply store from
which various articles used in the work of destroying the gypsy
and brown-tail moths are furnished at cost prices to such cities
and towns as are by law entitled to reimbursement from the
Commonwealth.

The section of the statute to which you refer, as amended
by St. 1906, c. 268, § 1, and St. 1908, c. 591, § 1, is as fol-
lows : —

The said superintendent shall act for the commonwealth in suppressing
said moths as public nuisances, in accordance with the provisions of this
act. For this purpose he shall establish an office and keep a record of
his doings and of his receipts and expenditures, and may, subject to the
approval of the governor, make iniles and regulations governing all opera-
tions by cities, to\\ais or individuals under this act. He may employ
such clerks, assistants and agents, including expert advisers and inspectors,
as he may deem necessary and as shall be approved by the governor. He
may make contracts on behalf of the commonwealth ; may act in co-opera-

JAMES M. SWIFT, ATTORNEY-GENERAL. 537

tion with any person, persons, corporation or corporations, including other
states, the United States or foreign governments; may conduct investiga-
tions and accumulate and distribute inforaiation concernmg said moths;
may devise, use and require all other la^n^ul means of suppressing or pre-
venting said moths; may lease real estate when he deems it necessary,
and, with the approval of the board in charge, may use any real or
personal property of the commonwealth; may at all times enter upon the
land of the commonwealth or of a municipality, corporation, or other
owner or owners, and may use all reasonable means in carrjing out the
purposes of this act; and, in the undertakings aforesaid, may, in accord-
ance with the provisions of this act, expend the funds appropriated or
donated therefor; but no expenditure shall be made or liability incurred
in excess of such appropriations and . donations. The clerks, assistants
and agents employed by said superintendent may at all times, in carrying
out the purposes of this act, enter upon the land of the commonwealth or
of a municipality, corporation or other o^\^ler or owners.

By St. 1909, c. 263, the powers of the superintendent for the
destruction of gypsy and brown-tail moths were transferred to
the State Forester.

The section quoted vests the State Forester with broad
powers, and since, by St. 1905, c. 381, § 1, the pupae, nests,
eggs and caterpillars of the gypsy and brown-tail moths, as well
as the moths themselves, are declared to be public nuisances, I
see no reason to doubt that, when actually engaged in the work
of destroying such moths in any stage of their development in
a given locality, you may co-operate with adjacent owners who
are carrying on, or may desire to carry on, private work upon
their own premises in conjunction with the public work by fur-
nishing them at cost supplies to be actually used in such work,
or may authorize a local superintendent to furnish them as
your agent.

Upon the other hand, I am of opinion that nothing in the
section should be construed to authorize the indiscriminate sale
of such supphes to private individuals upon the mere assump-
tion that they are to be used in connection with work upon the
premises of such individuals, and that the proper and safe rule
to follow in the premises, if such supplies are to be so fur-
nished, is to require them to be used upon work which is closely

538 OPINIONS OF THE ATTORNEY-GENERAL.

connected with some public work of the same character, and
which may be subject to the general supervision of the State
Forester or his agents.

Constitutional Law — Appropriation of Money raised by
Taxation — Public Purpose — Reclamation and Sale
OF Wet Lands — Eminent Domain — Gratuity.

a proposed act providing, in substance, for the taking by eminent domain, at the
assessed valuation thereof, of tracts of wet lands for the purpose of reclama-
tion, which, after such taking and reclamation, are to be cultivated for two
years by the State Board of Agriculture and then sold at a price not less than
the cost of such land plus the cost of reclamation, one-half of any sums
received in excess of such total cost to be awarded to the original owner or
owners of the land sold, and appropriating therefor the sum of $10,000, might
be held to contemplate the accomplishment of a public purpose which would
warrant the exercise of the power of eminent domain and the appropriation
of money raised by taxation, if, as matter of fact, the development and
distribution for occupation of the land affected gave relief to a considerable
and thickly settled agricultural region, and affected beneficially the com-
munity as a whole, throughout such region, as well as individuals who acquired
the land itself.

So much of such proposed act as provides that one-half of any sum received by
the Commonwealth upon disposing of reclaimed land, in excess of the cost
of the land plus the cost of reclamation, shall be awarded to the original
owner or owners thereof authorizes a payment which is in the nature of a
gratuity, and would therefore be unconstitutional.

TOgthe Senate. gy ^n Older dated April 25, 1912, the Honorable Senate has
^^fLi5" required my opinion upon the following questions of law: —

1. If the bill entitled "An Act to provide for protecting the public
health and promoting the general welfare by the reclamation of wet
lands," now pending in the Senate (printed as House No. 7, and amended
by the Senate), should be enacted, would its provisions be constitutional?

2. Would it be constitutional to provide for the expenditure of $10,000
from the treasury of the Commonwealth for the taking and improving
of wet lands by the State Board of Health and by the Board of Agriculture,
and for the exemption from taxation of such lands so long as the title
thereto remains in the Commonwealth ?

3. Is it possible that section 2, and especially the provisions of lines 6
and 7 of said section, providing that the rule of damages shall be the
assessed valuation, would be unconstitutional ?

4. Is it possible that section 6, and especially the provisions of line 5
of said section, providing that the Commonwealth may take, own and
operate deposits of marl and peat, would be unconstitutional?

JAMES M. SWIFT, ATTORNEY-GENERAL. 539

The proposed act is entitled "An Act to provide for protect-
ing the piibhc health and promoting the general welfare by the
reclamation of wet lands," and is as follows: —

Section 1. The sum of ten thousand dollars is hereby appropriated,
to be paid out of the treasury of the commonwealth from the ordinary
.revenue of the current year, to constitute a fund called the Wet Lands
Reclamation Fund, the same to be expended under the direction of the
state boards of health and agriculture, in the manner and for the purpose
hereinafter specified.

Section 2. The said board of health, with the approval of the governor
and coimcil, may take for the purposes of this act any tract or tracts of
wet lands of two or more adjacent owTiers, except salt marshes, together
with such diy land, if any, as may be necessary for access thereto, by
eminent domain, at the assessed valuation of said lands.

Any person aggrieved by a taking as aforesaid may have his damage
assessed in the manner provided by law in respect to the taking of land
for public parks.

Title to lands so taken shall pass to the commonwealth, and they shall
be exempt from taxation until sold as hereinafter pro\aded.

Section 3. The said board, acting through such agent or agents as it
shall appoint, shall proceed to drain and reclaim such lands, and for that
purpose may purchase such machinery and equipments and execute such
contracts, as the governor and council may approve, emploj'ing so far as
may be practicable the labor of prisoners under regulations and conditions
prescribed by the prison commissioners.

Section 4. When said lands, or any convenient part thereof, shall
have been drained and reclaimed, the board of agricuUure shall cause
the same to be cultivated for not less than two successive seasons, in such
a manner as, in the opinion of the board, shall best demonstrate the value
thereof for agricultural uses.

Section 5. The said board of agriculture shall thereafter, at such
time or times as it shall deem expedient, offer such lands for sale, in whole
or in part, at a price not less than the cost of the land plus the cost of re-
claiming the same.

One half of any sums received m excess of such total cost, shall be
awarded to the original owner or owners of the land sold, and the other
half of such excess shall be turned in to the treasuiy of the commonwcaUh
until the original appropriation shall have been refunded. The rcmaunng
proceeds of such sales shall be returned to the reclamation fund, to be used
for the reclamation of successive tracts in the manner hereinbcfoie provided.

Section 6. The town boards, actmg jointly, may, in their discretion,
reser^^e from sale any tracts containing marl, peat, or other deposits of

540 OPINIONS OF THE ATTORNEY-GENERAL.

commercial value, by the exploitation of which the cost of reclaiming the
remainder may be reduced; and may lease or operate such reserved por-
tions in any manner approved by the governor and council.
Section 7. This act shall take effect upon its passage.

The title of the bill recites that it is an act "to provide for
protecting the public health and promoting the general wel-
fare," but its provisions clearly contemplate not merely the
exercise of the police power of the Commonwealth for the pres-
ervation of the public health or safety, since, by its provisions,
the exercise is required of the governmental powers of eminent
domain and taxation (see §§ 1, 2). Nor is it an exercise of
the police power in providing reasonable regulations for the
general advantage of the owners of wet or swampy lands. See
R. L., c. 195, §§ 1-16; Coomes v. Burt, 22 Pick. 422; Day v.
Hurlhurt, 11 Met. 321; Sherman v. Tobey, 3 Allen, 7; Wurts
V. Hoagland, 114 U. S. 606; Head v. Amoskeag Manfg. Co.,
113 U. S. 9. Acts of this character are not designed to accom-
plish a public pvirpose and do not involve an exercise either
of the power of eminent domain or of the power of taxa-
tion. Henry v. Thomas, 119 Mass. 583, 584; Lowell v. Boston,
111 Mass. 454. It is well established thfat these latter powers
may be invoked only where the purpose to be accomplished is
a public purpose. Lowell v. Boston, 111 Mass. 454, 462; Talbot
v. Hudson, 16 Gray, 417; Opinion of the Justices, 182 Mass.
605, 607; Opinion of the Justices, 155 Mass. 598, 601.

The first and most important question presented by the
several inquiries of the Honorable Senate is whether or not the
purpose of the proposed bill is a public purpose. The purpose
stated in the title, that of protecting the public health, is not
conclusive, for the reason that the public health might well
be protected under the police power without recourse either to
the power of eminent domain or to the power of taxation, since,
if conditions warranted it, the wet lands might well be declared
a public nuisance, and so abated at the expense of the persons
benefited (see 11. L., c. 75, §§ 75-85; Grace v. Board of Health
of Newton, 135 Mass. 490), or might be abated under a statute

JAMES M. SWIFT, ATTORNEY-GENERAL. 541

like R. L., c. 195, §§ 1-16, upon the theory that all owners of
contiguous property of this character were common proprietors
and could be required to join in the work of reclamation and
to pay a reasonable and proportionate part of the expense. It
is obvious from a consideration of the bill, moreover, that the
taking of lands for the purpose of drainage, the purchase of
machinery for their development, and the experimental culti-
vation to "demonstrate the value thereof for agricultural uses,"
are not in any sense reciuired for the protection of the public
health, and that the primary, if not the only, object of the bill
is to secure the reclamation of the lands and their development
so far as may be necessary to make them marketable. The pur-
pose of the act, then, may fairly be said to be the acquisition
and development of wet lands so as to make them, after de-
velopment, fit for profitable occupation by the people of the
Commonwealth or such of the people as may have opportunity
to acquire them.

The exercise of the power of eminent domain in connection
with the drainage of wet lands has been sustained. See Coster
V. Tide Water Co., 3 C. E. Green, 54, 518; State v. Blake,
7 Vroom, 447; Talhot v. Hudson, 16 Gray, 417. In the latter
case the court sustained a statute (St. 1860, c. 211) which pro-
vided that a considerable tract of land situated in different
towns and held by a large number of owners, which Avas flooded
by reason of a dam maintained by private persons, might be
reclaimed by the removal of the dam by commissioners ap-
pointed under the act, compensation being paid out of the
treasury of the Commonwealth to the persons by whom the
dam had been maintained. The court discusses at length
whether or not the purpose for which the power of eminent
domain was here exercised was a public purpose. Thus, at page
423: —

In many cases there can be no difficulty in detennining whether an
appropriation of property is for a public or private use. If land i.s taken
for a fort, a canal or a highway, it would clearly fall witliiu the first cla.ss;
if it is transferred from one person to another or to several persons solely
for their pecuUar benefit and advantage, it would as clearly come within

542 OPINIONS OF THE ATTOKNEY-GENERAL.

the second class. But there are intermediate cases where pubUc and pri-
vate interests are blended together, in which it becomes more difficult
to decide within which of the two classes they may be properly said to fall.
There is no fixed rule or standard by which such cases can be tried and
determined. Each must necessarily depend upon its own peculiar circum-
stances. In the present case there can be no doubt that every owner of
meadow land bordering on these rivers will be directly benefited to a greater
or less extent by the reduction of the height of the plaintiffs' dam. The
act is therefore in a certain sense for a private use, and enures directly
to the individual advantage of such owners. But this is by no means
a decisive test of its validity. Many enterprises of the highest public
utility are productive of great and immediate benefits to individuals.
A railroad or canal may largely enhance the value of private property
situated at or near its termini; but it is not for that reason any less a pubhc
work, for the construction of which private property may well be taken.
We are therefore to look further in to the probable operation and effect
of the statute in question, in order to ascertain whether some pubhc
interest or benefit may not be likely to accrue from the execution of the
power conferred by it upon the defendants. If any such can be found,
then we are bound to suppose that the act was passed in order to effect it.
We are not to judge of the wisdom or expediency of exercising the power to
accomplish the object. The Legislature are the sole and exclusive judges
whether the exigency exists which calls on them to exercise their authority
to take private property. If a use in its nature public can be sub-
served by the appropriation of a portion of the plaintiffs' dam in the
manner provided by this act, it was clearly ,within the constitutional
authority of the Legislature to take it, and in the absence of any declared
purpose we must assume that it was taken for such legitimate and author-
ized use.

The court, in sustaining the exercise of the power, referred to
the statutes providing for the improvement of meadows,
swamps and low lands as instances of the exercise of the power
of eminent domain for purposes like that in the case at bar
(page 428). The analogy, however, was denied in Lowell v.
Boston, suyra (see page 468), although the case was followed
upon the principal question, the court, in Lowell v. Boston, say-
ing (page 470) : —

The main question was, whether the relief of an extensive territory of
valuable lands, in a thicldy settled agricultural region, from the nuisance
of flooding by the waters of a stream, caused by a single dam below, con-

JAMES M. SWIFT, ATTORNEY-GENERAL. 543

stituted such an object of public concern as to justify the exercise of the
power by removing the dam. The court recognized the difficulty that,
so far as the removal of the dam benefited each land owmer, it was a private
use which would not justify the exercise of that power. But the obstruc-
tion in the stream injuriously affected "so large a territor}% situated in
different towois, and owaied by a great number of persons," as to give it
the character of a pubhc nuisance, the removal of which "would seem to
come fairly within the scope of legislative action." While we do not
assent to the suggestions in that opinion, that the general provisions of law
for the regulation of mills and the improvement of meadows are based upon
the constitutional power to appropriate private property under the right
of eminent domain, we accord fully with the judgment rendered and the
general principle upon wliich it is founded.

If the use to which the property is to be put is a public use,
the decision of the Legislature as to the necessity w'hich re-
quires it to be taken is conclusive. Talbot v. Hudson, siqjra;
Miller v. Fitchburg, 180 Mass. 32, 37. The question as to
whether or not the use is a public one, however, must ultimately
be decided by the court. Miller v. Fitchburg, siiyra, page 37,
and cases cited. If the proposed bill benefits no one but the
present or prospective owners of the land taken, or if the only
benefit is in the profitable development and sale of the lands
themselves, the purpose of the statute would not, in my
opinion, be a public one. See Opinion of the Justices, 182
Mass. 605, 607; Opinion of the Justices, 155 Mass. 601. If,
upon the other hand, the development and distribution for
occupation of the lands affected gave relief to a considerable
and thickly settled agricultural region, and aft'ected bene-
ficially the community as a whole throughout such region, as
well as the individuals who acquired the land itself, it would
doubtless be held by the court to be a public purpose which
would justify the exercise of the power of eminent domain. As
I have stated, the ultimate decision is for the court, but with-
out definite knowledge as to the land which may be afTected or
the resulting benefits to the public as a whole, I am of opinion
that I am not required to hold that the purpose of the act, as
gathered from its provisions alone, would necessarily be un-
constitutional.

544 OPINIONS OF THE ATTOKNEY-GENERAL.

The first question of the Honorable Senate, however, extends
to and includes not only the general purpose of the act as
stated in sections 1 and 2, but also matters of detail compre-
hended in other provisions, and I am therefore constrained
to call attention to the provisions of section 5, that one-half
of any sums received by the Commonwealth, upon disposing of
such lands, in excess of the cost of the land plus the cost of
reclamation, shall be awarded to the original owner or owners
of any such land sold; and to say that in my opinion such pro-
vision is clearly unconstitutional. By section 2 it is provided
that the State Board of Health, with the approval of the Gov-
ernor and Council, may take by eminent domain any tract of wet
land of two or more adjacent owners, at the assessed valuation
thereof, and that any person aggrieved by a taking as aforesaid
may have his damages assessed in the manner provided b}' law
with respect to the taking of land for public parks, and that
title to the land so taken shall pass to the Commonwealth. It
is clear that upon such taking the title passes to the Common-
wealth in fee, and the owner, having received compensation
under the provisions of section 2, has no further right, title or
interest in the land taken, and a payment to him of half of the
sum received in excess of the cost and expense of development
cannot be considered to be an expenditure of public money for
a public purpose, since the Commonwealth receives nothing in
return therefor, but would be in the nature of a gratuity. With
respect to the specific provision just considered, therefore, I
am of opinion that the proposed act is unconstitutional.

In reply to the second question of the Honorable Senate I
should say that, assuming that the purpose for which the land
is taken and the money appropriated was a public purpose
within the principles discussed in considering the first inquiry
of the Honorable Senate, the expenditure of $10,000 from the
treasury of the Commonwealth and the exemption of the land
from taxation, so long as the Commonwealth retains title, would
be constitutional.

Replying to the third inquiry of the Honorable Senate in
the precise terms of said inquiry, I am of opinion that it is

JAMES M. SWIFT, ATTORNEY-GENERAL. 545

possible that the provision of section 2, that the rule of damages
shall be the assessed valuation, would be unconstitutional. In
exercising the power of eminent domain the Legislature has no
authority to designate an arbitrary amount which must be ac-
cepted by the person whose land is taken as damages for the
taking, or to prescribe rules or principles upon which damages
shall be computed. See Monongahela Navigation Co. v. United
^tates, 148 U. S. 312; In re Opinion of the Justices, 66 N. H.
629; Neichiiryport Water Co. v. Neivburyport, 85 Fed. Rep.
723. If the provision of section 2 that "said board of health
. . . may take . . . any tract or tracts of wet lands . . . by
eminent domain, at the assessed valuation of said lands," is to
be regarded as an assessment of the damages occasioned by said
taking, it might well be found objectionable upon constitutional
grounds. The designation of a fixed sum to be paid as damages
for the taking of land by eminent domain, even where an al-
ternative is provided by an appeal to a jury, is, so far as I am
aware, without precedent; but if the amount so fixed may be
regarded as an offer of settlement which may or may not be
accepted by the person whose land is taken, and whose consti-
tutional rights to a just compensation for his property are
protected by a further provision that "any person aggrieved
by a taking as aforesaid may have his damages assessed in the
manner provided by law in respect to the taking of land for
public parks," the constitutional requirement in the premises
might be satisfied, since it is at least doubtful if any offer
or award is required where provision is made for an ultimate
determination of damages by a jury. See Hamlin v. New Bed-
ford, 143 Mass. 192; Bent v. Evierij, 173 Mass. 495; St. 1898,
c. 278, § 4. And see Attorney-General v. Old Colony Railroad,
160 Mass. 62, 90.

Again, replying in the precise phraseology of the fourth in-
quiry of the Honorable Senate, it is, in my opinion, possible
that section 6, and especially lines 5 and 6, would be unconsti-
tutional. If the exploitation and operation of marl, peat or
other deposits of commercial value would properly constitute an
entrance bv the Commonwealth "as a competitor into the field

546 OPINIONS OF THE ATTORNEY-GENERAL.

of industrial enterprise, with a view either to the profit that
could be made through the income to be derived from the busi-
ness, or to the indirect gain that might result to purchasers if
prices were reduced by governmental competition," it would
clearly be unconstitutional. Opinion of the Justices, 182 Mass.
605, 607. If, on the other hand, such exploitation and opera-
tion were merely temporary, undertaken in connection with the
development of other adjacent or similar lands acquired for
a public purpose, and were intended only for the purpose of
reducing the cost of reclaiming the remainder of such land,
such work might well be held to be a proper and incidental
element of economy in the general work of reclamation.

Constitutional Law — Volunteer Militia — Adjutant
General — Term of Office.

The provision of chapter II., section I., Article X. of the Constitution of the
Commonwealth, that "the governor shall appoint the adjutant general,"
does not impose a limitation upon the authority of the General Court to
fix and determine the tenure of office of the adjutant general, and a provision
in a proposed act having for its purpose the revision of the organization of
the volunteer militia, that "the term of office of the adjutant general shall
be five j'^ears from the passage of this act," would not be unconstitutional.

Jf'^ReprSent- ^7 ^^ ordcr adoptcd by the Honorable House of Repre-
^*i9i2' sentatives on May 1, 1912, I am requested to inform the House

■ of Representatives whether in my opinion that provision of

House Bill No. 2221 entitled "An Act to revise the organi-
zation of the Massachusetts Volunteer Militia," which provides
that "the term of office of the adjutant general shall be five
years from the passage of this act," is constitutional and legal.

The proposed act, which amends St. 1908, c. 604, § 12, by
striking out the whole of said section and substituting a new
section therefor, among other things provides that —

The military and administrative staff of the commander-in-chief shall
consist of: —

The adjutant general, with the rank of brigadier general, who shall,
ex officio, be chief of staff, such officers of the United States anny or navy

JAMES M. SWIFT, ATTORNEY-GENERAL. •>47

as may be detailed as assistant chiefs of staff, together with the chiefs of
the inspector general's department, judge advocate general's department,
quartermaster's department, subsistence department, pay department,
medical department and ordnance department.

The terms of office of the chiefs of the above named departments shall
be five years, as provided in chapter four hundred and forty-nine of the
acts of the year nineteen huudi-ed and eleven (and the term of office of the
adjutant general shall l^e five years from the passage of this act and he shall
be ehgible for reappointment) .

The existing provision upon the subject is to be found in
St. 1908, c. 604, § 12: —

The staff of the commander-in-chief shall consist of: —

1 adjutant general, with the rank of brigadier general, who shall, ex-officio,

be chief of staff;
1 assistant adjutant general, with the rank of colonel;
4 aides-de-camp, each with the rank of major;
6 aides-de-camp, to be selected from the <3ommissioned officers of the

Massachusetts volunteer militia, but not to be relieved from duty

with their organizations while serving in this capacity.

In time of war the commander-in-chief may appoint such additional
staff officers as the service may require, with such rank, not higher than
that of colonel, as he may designate. The above staff officers, excepting
the detailed aides-de-camp, shall be commissioned and hold office until
their successors are appointed and qualified, but they may be removed
at any time by the commander-in-chief.

The precise inquiry of the Honorable House of Representa-
tives is, therefore, in substance, whether or not the General
Court may provide a fixed and definite term of office for the
adjutant general of the volunteer militia.

The pertinent provisions of the Constitution are contained in
chapter II., section 1, dealing with the powers and prerogatives
of the Governor. Article VII. constitutes the Governor the
commander-in-chief of the army and navy, and of all military
forces of the State, by sea and land, and vests in him full power,
by himself, or by any commander, or other officer or ofiicers,

548 OPINIONS OF THE ATTOKNEY-GENERAL.

from time to time, to train, instruct, exercise and govern the
militia and navy. Article X. provides —

The captains and subalterns of the miUtia shall be elected by the wa-itten
votes of the train-band and alann hst of their respective companies, the
field officers of regiments shall be elected by the written votes of the
captains and subalterns of their respective regiments; the brigadiers shall
be elected, in hke manner, by the field officers of their respective brigades;
and such officers, so elected, shall be commissioned by the governor, who
shall determine their rank.

The legislature shall, by standing laws, direct the time and manner of
convening the electors, and of collecting votes, and of certifying to the
governor, the officers elected.

The major-generals shall be appointed by the senate and house of
representatives, each having a negative upon the other; and be com-
missioned by the governor.

And if the electors of brigadiers, field officers, captains or subalterns,
shall neglect or refuse to make such elections, after being duly notified,
according to the laws for the time being, then the governor, with the advice
of council, shall appoint suitable persons to fill such offices.

The commanding officers of regiments shall appoint their adjutants
and quartermasters; the brigadiers their brigade-majors; and the major-
generals their aids; and the governor shall appoint the adjutant-
general.

The governor, with ad^dce of council, shall appoint all officers of the
continental army, whom by the confederation of the United States it is
provided that this commonwealth shall appoint, as also all officers of forts
and garrisons.

'The di^asions of the militia into brigades, regiments, and companies,
made in pursuance of the militia laws now in force, shall be considered as
the proper divisions of the militia of this commonwealth, until the same
shall be altered in pursuance of some future law.

I am advised that doubt has arisen as to the power of the
Legislature to create a fixed term of office for the adjutant gen-
eral, in view of the arrangement and language of the provisions
of the Constitution above cited and of the distinction which
seems to be made between officers of the militia who are
commissioned to command and officers who are appointed adju-
tants, quartermasters, brigade-majors and aids to major-gen-
erals, wuth whom the adjutant general is included in Article

JAMES M. SWIFT, ATTORNEY-GENERAL. .>i9

X., and it is suggested that from the relation between an
adjutant and his commanding officer, a brigade-major and his
brigadier, an aid and his commanding general, and the adjutant
general and the commander-in-chief, a constitutional right is
to be inferred which is vested in the Governor, as commander-
in-chief, and in a major-general, brigadier or regimental com-
mander to appoint as adjutant general, aid, brigade-major,
adjutant or quartermaster, such eligible person as he may de-
sire, and that it would be in contravention of such constitutional
right to provide a fixed term of office for any of these officers.
The relations between a commanding officer and his personal
staff are doubtless so intimate and of such a character as to
render it desirable that such commanding officer should exercise
his personal judgment in the selection of the members of his
staff, and military custom appears to have recognized the pro-
priety of such action by the commanding officer in requiring as
matter of etiquette, upon a change of commanders, a voluntary
tender of the resignations of members of the staff of his pred-
ecessor. This custom has been at times recognized in the
statutes relating to the organization of the militia. (See R. S.,
c. 12, § 73.) It does not follow, however, that the existence
of such a custom, or even a recognition of it in the Constitution
in the apparent distinction between officers of the militia elected
to command and officers appointed to positions upon the staff
of a commanding officer, if such distinction amounts to recogni-
tion, must be given the force of a constitutional restriction upon
the power of the General Court to deal with the term or teiuire
of staff appointments, or regarded as creating a modification, in
the case of such appointments, of the well-recognized principle
that where an office is established by the Constitution without
provision as to the term or duty thereof the latter may be al-
tered, enlarged or modified in such manner as the Legislature
may deem to be for the public interest. Opinion of the Jus-
tices, 117 Mass. 603; Wales v. Belcher, 3 Tick. 508; see Taft v.
Adams, 3 Gray, 126; Const, of Mass., c. 1, § 1, Art. IV.

A careful consideration of the provisions of the Constitution
which are material to this question discloses no intention upon

550 OPINIONS OF THE ATTORNEY-GENERAL.

the part of the framers thereof to impose a hmitation upon the
power of the General Court to fix and determine the tenure
of oflfice of the adjutant generah Upon the contrary, the Jour-
nal of the Convention for Massachusetts Bay, 1779-80, shows
that in discussing the paragraph dealing with staff appoint-
ments, which was afterwards adopted, it was suggested that
the words "during pleasure" be inserted, and that the sugges-
tion was thereafter withdrawn and the paragraph accepted in
its present form. The purpose of the suggestion, and the
meaning of the words "during pleasure," may be illustrated by
quoting from the constitution, submitted to the people by the
General Court of 1777-78 and rejected by popular vote, a pro-
vision found in the 26th clause that "the Attorney-General,
Sheriffs, Registers of the Courts of Probate, Coroners, Notaries
Public, and Naval Officers, shall be appointed and hold their
offices during pleasure." The convention, therefore, upon con-
sideration and with intention, omitted from the clause of the
Constitution which relates to the appointment of staft' officers
any express provision for the limitation which it is now argued
must by implication be read into said clause.

The early statutes which deal with the organization of the
volunteer militia contain no provision from which may be in-
ferred a recognition that the tenure of office of either the
adjutant general or any other staff officer was to be during
the pleasure of his commanding officer (see St. 1809, c. 108);
and it is significant that the earliest provision relative to the
discharge or removal of staff officers (St. 1821, c. 92, § 16)
was enacted after the adoption in 1821 of Article IV. of the
Amendments to the Constitution, which, in part, provided
that —

All officers commissioned to command in the militia may be removed
from office in such manner as the legislature may, by law, prescribe —

and superseded a provision that —

No officer, duly commissioned to command in the militia, shall be re-
moved from his office, but by address of both houses to the governor, or

JAMES M. SWIFT, ATTORNEY-GENERAL. 551

by fair trial in court-martial, pursuant to the laws of the commonwealth
for the time being —

and at the time when the Legislature first assumed and exer-
cised the authority to provide for the discharge of militia
oflBcers in a manner other than by fair trial in court-martial,
or by address of both houses to the Governor. See St. 1821,
c. 32, § 1; St. 1835, c. 144, §§ 2, 3; R. S., c. 12, §§ G7-73.

INIoreover, there is nothing in the language of the constitu-
tional provision itself which requires a construction inconsistent
with an authority in the Legislature to determine the term of
office of the adjutant general or of any other staff officer (see
Avery v. Inhabitants of Tyringham, 3 Mass. 160), and in at
least one instance such power has been exercised by the Legis-
lature by providing, in Gen. Sts., c. 13, § 62, that "the adju-
tant general shall hold his office for the term of one year,"
subject to removal at any time by the commander-in-chief.
And see St. 1912, c. 268; St. 1911, c. 449.

For the reasons above stated, therefore, I am of opinion that
the provision of House Bill No. 2221, that the term of office
of the adjutant general shall be five years from the passage
thereof, would not be unconstitutional.

552 OPINIONS OF THE ATTORNEY-GENERAL.

Constitutional Law — Governor — Veto — Duty to re-
turn Bill with Objections thereto in Writing to the
Branch in which it originated — Return — Limit of
Time.

Where certain bills, due under the proAdsions of Article II. of Section I. of Chapter
I. of the Constitution of the Commonwealth to be returned on May 27 by
the Governor, with his objections thereto in writing, to the House of Rep-
resentatives, in which branch such bills originated, were found, on the morning
of May 28, on the desk of the clerk of the House of Representatives, and the
speaker of the House of Representatives, on a point of order, riiled that the
vetoes were not properly returned until received by the clerk at 8 o'clock
upon the morning of May 28, and such bills were transmitted by the clerk
to the Secretary of the Commonwealth, with a statement of the above facts,
it is not the duty of the Secretary to determine whether or not such bills
were seasonably returned, and he should receive and record them among the
laws of the current year, leaving the question of their validity to be determined
by the proper tribunal.

It would seem, however, that the duty devolving upon the Governor under the
provisions of Article II. of Section I. of Chapter I. of the Constitution, if
he has objection, to return a bill or resolve within the prescribed period of
time to the branch of the Legislature in which it originated, should be per-
formed with sufficient formality to insure that the return shall be made to
some proper officer of the Senate or House of Representatives, as the case
may be, if the branch to which the bill or resolve and the objections are sent
is not in session, i

se°critlry ^^'^ dcsire ihv opinion as to whether or not it is your duty

junl^. to receive certain bills transmitted to yoii by the clerk of the

House of Representatives under circumstances which appear
from a communication accompanying said bills to be as fol-
lows : —

These acts and resolve were found on the desk of the clerk of the House
of Representatives on the morning of Tuesday, May 28, last. They were
due to be returned by His Excellency the Governor to the House of Repre-
sentatives, m which branch they originated, with his objections thereto
in writing, on Monday, May 27.

At the session of the House on Tuesday, May 28, the speaker called the
attention of the House to the fact that these bills and resolve had been
found on the desk of the clerk of the House that morning.

A point of order was raised that the bills and resolve and veto messages
were not properly before the House of Representatives, not having been

» See Tuttle v. Boston, 215 Mass. 57.

JAMES M. SWIFT, ATTORNEY-GENERAL. 553

retui'ned by the Governor within the five days allowed under Article II.
of Section I. of Chapter I. of the Constitution.

On tliis point of order the speaker ruled as follows: "the vetoes were
without question returned after the clerk's office was closed on the last
day during which, under Ai'ticle II. of Section I. of Chapter I. of the Con-
stitution, three of the vetoes should apparently have been returned.
There is no official record whether the vetoes were left in the clerk's office
before or after midnight. The chair, therefore rules that simply lea\'ing
the papers in the clerk's office after it is closed is not such a return to the
House of Representatives of the bills and resolves, with liis objections
thereto in writing, as is required by the Constitution, as the House can
take cognizance of; and that tliree of the vetoes were not properly re-
tm-ncd until received by the clerk at 8 o'clock this morning."

It is the duty of the Secretary of the Commonwealth, under
the provisions of R. L., c. 9, § 1 —

at the close of each session of the general court, [to] collate and cause to
be printed in one volume, in style and arrangement as heretofore, the
constitution of the commonwealth, the acts and resolves passed, any
amendments to the constitution agreed to during such session, the gov-
ernor's address and messages, a hst of the changes of names returned
dm-ing the preceding year by the probate courts, a list of the officers of the
civil government of the commonwealth, a table of changes in the general
laws, and an index.

I assume, therefore, that your inquiry, in substance, requires
my opinion as to whether or not you shall receive for record,
and include in the collated and printed volume of the acts and
resolves for the current year, the two bills and the resolve trans-
mitted to you in the manner hereinbefore described.

The ruling of the speaker, already quoted, appears to be
based upon the fact that there was before him " no official rec-
ord whether the vetoes were left in the clerk's office before or
after midnight;" but the absence of such record is not, in my
opinion, conclusive, for if the placing of the bills and the resolve
upon the desk of the clerk of the House of Representatives dur-
ing the absence of the clerk and after his office was closed f.^r
business is a sufficient compliance with the constitutional pro-
vision that the Executive shall return such bills and resolve,

554 OPINIONS OF THE ATTORNEY-GENERAL.

together with his objectiGns thereto in writing, to the branch of
the Legislature in which they originated, the hour or moment
when they were placed there may be established by competent
proof. Gardner v. The Collector, 6 Wall. (U. S.) 499, 511. And
see United States v. Allen, 36 Fed. Rep. 174; Lyons v. Woodsj
153 U. S. 649, 663.

Since the fact, if it be a fact, may be established by proper
evidence, I shall assume for the purposes of your inquiry that
the several bills and resolve were placed upon the desk of the
clerk of the House of Representatives before midnight on Mon-
day, May 27, and within the period allowed therefor by the
Constitution. The present status of the bills and the resolve
in question, therefore, must depend upon whether or not they
have been duly "returned" to the House of Representatives.

The provision of the Constitution which is material in the
premises is Article H. of Section I. of Chapter I. of Part the
Second of the Constitution, which I quote : —

No biU or resolve of the senate or house of representatives shall become
a law, and have force as such until it shaU have been laid before the gov-
ernor for his revisal; and if he, upon such revision, approve thereof, he shall
signify his approbation by signing the same. But if he have any objection
to the passing of such biU or resolve, he shall return the same, together
with his objections thereto, in writing, to the' senate or house of repre-
sentatives, in whichsoever the same shall have originated; who shall enter
the objections sent down by the governor, at large, on their records, and
proceed to reconsider the said bill or resolve. But if after such reconsidera-
tion, two-thirds of the said senate or house of representatives, shall, not-
withstanding the said objections, agree to pass the same, it shall, together
with the objections, be sent to the other branch of the legislature, where it
shall also be reconsidered, and if approved by two-thirds of the members
present, shall have the force of a law; but in aU such cases, the votes of
both houses shall be determined by yeas and nays; and the names of the
persons voting for, or against, the said bill or resolve, shall be entered upon
the public records of the commonwealth.

And in order to prevent unnecessary delays, if any bill or resolve shall
not be returned by the governor within five days after it shall have been
presented, the same shall have the force of a law.

It has been held that a bill can be laid before the Governor
only by being presented to him personally. So in Opinion of

JAMES M. SWIFT, ATTORNEY-GENERAL. 555

the Justices, 99 Mass. 636, in reply to an inquiry of the House
of Representatives as to whether a bill transmitted by the Sen-
ate to the Secretary of the Commonwealth during a temporary
absence of the Governor from the Commonwealth was properly
"laid before" the Governor prior to his return, the court
said : —

As the duty of revisal by the Governor is a personal duty, with which
he alone is intrusted when his chair is not vacant, it is necessary^ that the
bill should be laid before him personally. A bill is not laid before him or
presented to him, within the meaning and intent of these pro\'isions, by
being sent from the Senate to the Secretary of the Commonwealth. The
Constitution makes the Secretary an independent officer, and prescribes
his duties; and liis possession of a bill sent by the Senate to be presented
to the Governor is not the possession of the Governor.

A bill must be laid before the Governor, or the person who, for the
time being, is clothed with the powers of Governor under the Constitution,
for his revision. The individual whose duty it is to sign the bill is entitled
to have it before him, that he may have the opportunity to sign it or
return it with his objections thereto to the branch of the Legislature in
which it originated. This bill does not appear to have been so presented
to any one, except by the statement that it was returned uasigncd on the
19th, 'ftith the Governor's objections.

This opinion is cited with approval in FcinceU v. Boston,
192 Mass. 15, 19. In the latter case the then charter of the
city of Boston (St. 1854, c. 448, § 47) required an ordinance,
order, resolution or vote to be presented to the mayor, and pro-
vided that if such ordinance, order, resolution or vote "shall
not be returned by the mayor within ten days after it shall have
been presented the same shall be in force; " and it was held
that leaving a vote with a clerk in the mayor's office, in the
absence of the mayor, was not a presentation to that officer
within the meaning of the provision above quoted.

Beyond holding, in Opinion of the Justices, 135 Mass. 594,
that the Governor is not required to deliver a bill or resolve in
person, the courts of this Commonwealth do not appear to have
defined what constitutes returning a bill or resolve to the branch
of the Legislature in which it originated. In that opinion it
is said that the delivery by the Governor "of the message to

556 OPINIONS OF THE ATTORNEY-GENERAL.

the private secretary, who is an ofRcer provided for by statute,
and the proper organ of communication with the Legislature,
with directions to have it sent down, was the first step in its
transmission to the House." In the case of Harpending v.
Haight, 39 Cal. 189, however, the meaning of the word in a
provision of the constitution of Cahfornia that "if any bill
shall not be returned within ten days after it shall have been
presented to him (the governor) . . . the same shall be a law,
in like manner as if he had signed it, unless the Legislature, by
adjournment, prevent such return," was discussed at great
length. It there appeared that on the last day of the pre-
scribed period the Governor, by his messenger, sent to the
Senate a bill which he had declined to sign, with his objections
thereto in writing. LTpon arriving at the Senate chamber,
however, the messenger discovered that the Senate had ad-
journed until the following morning, and immediately returned
both the bill and the message to the Governor without attempt-
ing to deliver them to the Senate or to deposit them with any
officer of the Senate or with any other person for its use, and
they were thereafter retained by the Governor. After referring
to the constitutional requirement that a bill must, before be-
coming a law, be "presented to the Governor," the court says,
at page 199: —

And so, upon the other hand, when we come to consider the correspond-
ing duty of the Executive to "return" the bill to the Senate in this case,
we know by attending to the results to be brought about by such "return"
that it must be a step taken by which his own time for deUberation is
ended and that for the deUberation of the Senate is begun; that the bill
itself must be put beyond the Executive possession; that it must be placed
into the possession, actual or potential, of the Senate itseK; and that,
as part of this return, the Executive objections to the passage of the bill
must be stated.

And again, at page 203 : —

It was the duty of the messenger to communicate to the Senate the
message which he bore from the Executive on that occasion. This was
to be done in the most direct mamier that circumstances would permit.

JAMES M. SAVIFT, ATTORNEY-GENERAL. 557

It was impossible for him to immediately aimounce it to the Senate, for
that body was not in session. It had a right to be in recess, if it desired
so to be, and it was not in the power of the Executive or his messenger
to recall it to its sittings. But its right to be in recess was no greater or
higher than was the right of the Executive to return the bill in question
for its reconsideration; nor is there any reason why the free exercise of
these admitted rights upon the part of the Senate and Governor, respec-
tively, should bring them into coUision. The Senate has the unqualified,
constitutional power to adjourn for three consecutive days. (Art. IV.,
Sec. 15, Constitution.) It must often happen that these three days will
include the last day allowed the Executive for the exercise of the veto
power against the passage of a particular Senate bill.

Now, if the mere fact of the recess of the Senate, thus constitutionally
taken, does operate to defeat, in a measure, the exercise of the veto power
conferred on the Executive by the Constitution, then we have the strange
spectacle of an irreconcilable conflict between the several clauses of that
instrument itself, by which the Senate, by the mere exercise of its own
admitted constitutional authority to adjourn, violates the equally clear
constitutional right of the Executive to have it kept in session.

We are of opinion that the adjom-nment of the Senate on March 31
did not cm-tail the veto power of the Executive over the bill in question,
nor should it even have emban-assed him in its exercise. The return
should have "been made in such manner as the circumstances would permit;
it should, at all events, have left the bill and message be3'ond the Executive
control, and, if need be, in the immediate custody of some proper person
who would be Hkely to dehver it to the Senate at the first opi^ortunity.
The best return that the circumstances would admit, would, in our judg-
ment, be a proper return. The maxim lex non cogit ad impossibilia would
be apphcable to such a condition of affairs. We know of no other rule,
either, upon which the clear right of the Governor to make the return to
the Senate can be reconciled ^ith the equally clear right of the Senate
to be in recess at the time.

If the requirement of the Constitution that, before becoming
a law- a bill or resolve must be laid before the Governor for his
revisal, can be met only by laying such bill or resolve before
bim personally, it would seem that the corresponding duty de-
volving upon the Governor, if he has objection, to return such
bill or resolve within five days to the branch of the Legishiture
in which it originated, should be performed with .sufficient
formality to insure that the return shall be made to some proper
officer of the Senate or House of Representatives, as the case

558 OPINIONS OF THE ATTORNEY-GENERAL.

may be, if the body to which the bill or resolve and the objec-
tions are sent down is not in session. See Opinion of the
Justices, 45 N. H. 607, 610. Or at least to "the immediate
custody of some proper person who would be likely to deliver
it ... at the first opportunity." See Harpending v. Haight,
supra, p. 204.

In the case here under consideration, if a decision upon this
point were required by the inquiry submitted to me, I should
be inclined to accept the principles laid down in the cases cited,
and to hold that upon the facts before me the bills and the
resolve transmitted to you by the clerk of the House of Repre-
sentatives were not returned to that body before midnight on
May 27, and therefore were not returned within the five days
allowed therefor by the Constitution.

I am of opinion, however, that I am not required to pass
upon this question. The bills and the resolve to which your in-
quiry is directed were transmitted to you by the clerk of the
House of Representatives, and are in your possession and cus-
tody as the recording officer of the Commonwealth and the
custodian of its records; and you are officially advised that the
House of Representatives, in which they originated and to
which they should have been returned ]by the Executive, has
declined to receive them, upon the ground that they were not
seasonably returned to it. Under these circumstances it is not
the duty of the Secretary to determine whether or not the bills
and the resolve in question were in fact returned, or w^iether or
not the action of the House was warranted in the premises. He
should be guided by the official record of the facts, and receive
and record the several bills and the resolve among the laws of
the current year, leaving the question of their validity to be
determined by the proper tribunal.

JAMES M. SWIFT, ATTORNEY-GENERAL. 559

CouxTY Treasurers — Pa Y^iENTS — Approv \L of Bill or
Order — Duty to ascertain Legality of Expendi-
tures.

Under the pro-vdsions of R. L., c. 21, § 8, that "each county treasurer shall collect,
receive and safely keep all money belonging to the county, and pay out the
same in accordance with law," it is the duty of a countj' treasurer to ascertain
whether or not a paj-ment which he is called upon to make, by an order or
bill duly approved by the countj- commissioners, may be made by him ac-
cording to law, and he is therefore required to satisfy himself that the
expense for which payment is to be made was legally incurred in the first
instance.

In a letter dated May 13 you state that certain payments by To the

1 • 1 "if 11 p 1 1 • ' Controller

county treasurers, which are irregular bv reason oi there beiiiK ofCounty

, , Acrounts.

no legal authority for their payment," have come to vour at- ,*''*'-,o

o ^ L- >, J .. June 12.

tention, and that with reference to such payments "the claim
made by certain treasurers is that their only liability is under
chapter 21, sections 12 and 17 of the Revised Laws, and that
whatever bill comes to them, approved by the commissioners,
is for them to pay, unquestioned," and you desire my opinion
"as to whether the treasurer is responsible for all improper
payments made by him, or, if his responsibility is limited by
law, just what that limitation is."

The duty of a county treasurer as defined by 11. L., c. 21, § S,
is as follows : —

Each county treasurer shall collect, receive and safely keep all money
belonging to the county, and pay out the same in accordance with law;
but he shall not pay money to the county commissioners or associate
commissioners to be disbursed by them in behalf of the county.

Section 9 provides that —

No pajanents, except of expenses in criminal prosecutions, of expenses
of the coui-ts, of the compensation or salaries of county officers cstal)li.shed
by law, of outstanding notes or bonds and of interest thereon, shall be
made by a treasurer except upon orders drawn and signed by a majority
of the county commissioners, certified by their clerk and accompanied,
except in the county of Suffolk, by the original bills, vouchers or evidenca'j
of county indebtedness for which payment is ordered, stating m detail

560 OPINIONS OF THE ATTORNEY-GENERAL.

the items and confirming such bill or account. Said clerk shall not certify
such orders until he has recorded them in the records of the county com-
missioners.

Section 12 provides in part that —

The county treasurer may, before pajTnent of an account rendered
against the county by a county officer, in writing require of him a ^\Titten
statement of the specific provision of law authorizing it. Said statement
shall be filled with the vouchers. The treasurer shaU be personally hable
for money paid out by him, except pajnnents specifically required by law,
unless there is an unexpended balance of an appropriation made for the
purpose sufficient for such payment, and he shall be personally hable for
any money paid by him without the voucher and certificate required by
law, except as proidded in section thirty-four.

The county treasurer is chiefly a disbursing officer. Most of
the payments made by him are made upon orders issued by the
county commissioners or upon bills audited or allowed by said
commissioners or other public officers. See St. 1907, c. 170;
R. L., c. 158, § 8; R. L., c. 157, §§ 16, 17. In so far as the
expenses for the payment of which such orders are issued or bills
approved are incurred for purposes for which expense may
legally be incurred, I am of opinion tha| the county treasurer
may exercise no discretion, and may make payment without in-
curring responsibility in the premises. Upon the other hand, it
is clearly the duty of the county treasurer to ascertain whether
or not a payment which he is called upon to make by an
order or by a bill duly approved may be made by him accord-
ing to law, and this necessarily requires him to satisfy himself
that the expense for w^hich the payment is to be made was
legally incurred in the first instance, and for this purpose he
may require a written statement of the specific provision of
law by which any such expense was authorized. See R. L.,
c. 21, § 12. If, upon the face of the record presented by the
voucher or certificate, it clearly appears that there is no legal
warrant for the expenditures, no order of the county com-
missioners or no approval by them or by any public officer of
charges so incurred is sufficient to warrant the payment.

JAMES M. SWIFT, ATTORNEY-GENERAL. 5(31

Veteran — Commissioned Officer — Gratuity —
Attorney — Fee.

St. 1912, c. 702, which in section 1 provides for a gratuity of $125 "for those
veteran soldiers and sailors who volunteered their services in the civil war,"
and in section 2 provides that such gratuity "shall be paid to every person
or his legal representatives . . . who served in the army or na^'y of the
United States to the credit of the commonwealth during the ci\-il war, ..."
includes commissioned officers as well as enlisted men.

The Commission on Gratuities, established by section 3 of St. 1912, c. 702, is not
required to make or to secure payment of the fee prescribed by section 6
to any attorney or other person entitled thereto for the prosecution of a claim
for a gratuity under such statute.

By a communication dated July 2, 1912, you request my TotheCom-

• • • r> ' 1 1 -•'■./->■<<-. " ^ mission on

opinion upon two questions; nrst, whether bt. 1912, c. /()2, Gratuities,
entitled "An Act to provide for suitably rewarding certain Juiy_8.
veteran soldiers and sailors" should be construed to include
officers; and second, whether, under the provisions of section 6,
it is the duty of the commission to pay the fee therein pro\ided
for.

The act above cited provides, in section 1, that —

For the purpose of promoting the spirit of loyalty and patrioti-sm, and
in recognition of the sacrifice made both for the commonwealth and for
the United States by those veteran soldiers and sailors who volunteered
their services in the ci\dl war, and for the purpose of promoting the public
weKare, by giving visible evidence to this generation and future genera-
tions that, if danger should again threaten the nation and the call should
again come for men, Massachusetts will not forget the great ser^nce of
those who volunteer, a gratuity of one hundred and twenty-five dollars
to each veteran is hereby authorized to be paid from the treasur}- of the
commonwealth under the conditions hereinafter set forth.

Section 2 is as follows: —

The gratuity herein provided for shall be paid to ever}- person, or his
legal representatives, not being a conscript or a substitute, and not ha\nng
received a bounty from the commonwealth or from any city or town
therein, who served in the army or na\T of the United States to the credit
of the commonwealth during the civil war, and was honorably discharged
from such ser\'ice, and is li^-ing at the time of the passage of this act;

562 OPINIONS OF THE ATTORNEY-GENERAL.

it being intended and provided that the said gift shall not be a bounty, nor
a payment in equalization of bounties, nor a payment for services rendered,
nor a payment for the purpose of making the result of their contracts of
enlistment more favorable to them because the contracts of other soldiers
were on better terms, but a testimonial for meritorious service such as the
commonwealth may rightly give, and such as her sons may honorably
accept and receive.

The latter section in terms provides that the gratuity "shall
be paid to every person . . . not being a conscript or a substi-
tute, and not having received a bounty from the commonwealth
or from any city or town therein, who served in the army or
navy of the United States to the credit of the commonwealth
during the civil war, and was honorably discharged from such
service, and is living at the time of the passage of this act."
If, therefore, an officer can satisfy the commission that, not
being a conscript or a substitute, he has served in the army or
navy of the United States to the credit of the Commonwealth
during the civil war, and has been honorably discharged from
service, I am of opinion that he would be entitled to receive the
gratuity, notwithstanding that bounties were in the first in-
stance payable only to enlisted men. See St. 1864, cc. 48,
143, 211. The present statute does not contemplate that the
payment of a gratuity under its terms shall be in lieu of
bounty.

With respect to your second question, I am of opinion that
the commission is not required to make payments to an at-
torney or other person entitled thereto for the prosecution of a
claim under the statute. Section 6, to which your communica-
tion refers, is as follows: —

The fee for the prosecution of a claim under this act shall not exceed
the sum of five dollars; and the fee agreed upon between the parties, not
exceeding the said amount, shall be paid to the attorney or other person
entitled thereto out of the amount allowed on the certificate of the com-
mission allowing the same. Any attorney or other person who demands
or receives for his services any greater compensation than the sum above
specified shall be guilty of a misdemeanor, and shall for every such offence
be punished by a fine not exceeding one hundred dollars or by imprison-

JAMES M. SWIFT, ATTORNEY-GENERAL. .5(13

ment at hard labor for a term not exceeding six months, or by l^otii such
fine and imprisonment.

There is nothing in this section to impose upon the commis-
sion the duty to secure payment of the fee named therein to the
attorney or other person who may be entitled to it.

License — Keeper of Hospital for Insane or Feeble-
minded — Suitable Person — Partnership.

In behalf of the State Board of Insanity you have requested J^'e Board
my opinion upon the following question: — °' m"^^'

August 13.

Whether under section 24, chapter 504, Acts of 1909, the State Board
of Insanity is limited in its recommendations to individuals or whether
it can recommend that licenses be granted to partnerships.

The section of the statute referred to provides as follows: —

The governor and council may, upon the recommendation of the state
board of insanity, hcense any suitable person to estabUsh and keep a
hospital or private house for the care and treatment of the insane, epileptic,
feeble-minded, and persons addicted to the intemperate use of narcotics
or stimulants, and may at any time revoke such license. No such recom-
mendation shall be made unless the said board is satisfied that the person
applymg therefor is a duly qualified physician, as provided in section
thirty-two, and has had practical experience in the care and treatment
of such patients. Any person owning or maintaining such a hospital
or private house on the date of the passage of this act shall be entitled
to maintain the same under the provisions of law in force at that time,
except that every such hospital or house shaU be subject to the \'isitation
and supervision of the state board of insanity.

The word "person," as used in different statutes, varies much
in the comprehensiveness of its scope, and its meaning in any

564 OPINIONS OF THE ATTORNEY-GENERAL.

particular statute must usually be determined by the context
and by consideration of the object of the statute in which it is
used. It has sometimes been construed as including a corpora-
tion, an artificial person, and as used in some statutes it has
undoubtedly been sometimes held to include a copartnership.

Considering the word as it is used in the statute in question
with reference to its context and with reference to the purpose
of the statute, the term "suitable person" and the term "the
person applying therefor" in my opinion are to be considered
as referring to one and the same person, and since the Board,
in order to make its recommendation to the Governor and
Council, must state that the applicant for a license in addition
to being otherwise "suitable" is "a duly qualified physician, as
provided in section thirty-two," it becomes clear that the word
"person" was not intended to include a partnership as such,
since a partnership cannot be "a duly qualified physician."

Considering the meaning of the word with reference to the
clear purpose of the statute leads to the same conclusion. The
provisions of law requiring the license as a prerequisite to
the right to establish or keep such a hospital as is described in
the act were obviously to keep the control and management of
such hospitals under only such physicians as were deemed by
the Board to be suitable and duly qualified to conduct them.

If the word "person" were to be construed to include a part-
nership, and if the words "person applying therefor" were to
be construed as requiring simply that the one member of the
partnership who made the application should be a duly qualified
physician, the result would be not only that the application in
the name of the physician Avould not in fact be the application
of the partnership, but also the very object of the law might
be defeated because the physician might be the only physician
among the partners, or might be merely a nominal or silent
partner, or one of several partners having only an insignificant
part of the management of the hospital. In a previous opinion
to the Board I have advised that the only person entitled to be
licensed under the statute referred to was the responsible head
of such hospital or private house, that is, "the one who exer-

JAMES M. SWIFT, ATTORNEY-GENERAL. 0<i.l

cises control or proprietorship of it." Ante. p. 359; Common-
wealth V. Kimhall, 105 Mass. 465, 467.

The opinion above expressed is, however, not to be construed
as holding that duly licensed individuals may not lawfully form
a partnership for the purpose of establishing or keeping sucli a
hospital. In other words, while your Board is, in my opinion,
not authorized to recommend for license a partnership, but must
limit its recommendations to individuals, the law does not ap-
pear to forbid the formation of a partnership by individuals,
each of whom is a duly qualified physician, and each of whom
has been deemed suitable to establish and keep such a hospital
by your Board, and each of w'hom has been duly licensed as an
individual for such work.

Town — Indebtedness for Water Supply — Vote.

A tow-n which has accepted by a two-thirds vote an act authorizing it to supply
itself and inhabitants with water, may incur indebtedness therefor only by
compliance with the provision of R. L., c. 27, § 8, which requires a vote of
two-thirds of the voters present and voting at a town meeting to authorize
incurring indebtedness for such purpose.

You have requested mv opinion as to "whether a town to the Deputy
which accepts by a two-thirds vote an act authorizing it to b^";«;^^^^'
supply itself and inhabitants with water may incur debt there- ^j^^m2 ^^
for without being required to comply with the provisions of
R. L., c. 27, § 8, which makes necessary a two-thirds vote in
order that it may incur debt for such a purpose," and you have
informed me orally that your inquiry is made with a specml
reference to the town of Merrimac, which, by St. 19()3, c. 281,
was authorized to supply itself and its inhabitants with water.

Section 6 of that act is as follows: —

Said town may, for the purpose of paying the necessary expenses and
UabiUties mcurred under the provasions of this act, issue from time to time
bonds, notes or scrip to an amount not e.Kcecdiiig ninety thousiuul dollani^
Such bonds, notes or scrip shaU bear on their face the words, Town ot
Merrimac Water Loan, and shall be payal^le at the expiration of periods

566 OPINIONS OF THE ATTORNEY-GENERAL.

not exceeding thirty years from the date of issue, shall bear interest,
payable semi-annually, at a rate not exceeding four per cent per annum,
and shall be signed by the treasurer of the towTi and countersigned by the
water commissioners hereinafter provided for. Said town may sell such
securities at pubhc or private sale, or pledge the same for money borrowed
for the purpose of this act, and upon such terms and conditions as it may
deem proper : provided, that such securities shall not be sold for less than
the par value thereof.

Section 14 is as follows: —

This act shall take full effect upon its acceptance by two thirds of the
legal voters of the town of Merrimac present and voting thereon at a legal
meeting called for the purpose within three years from its passage; but
the number of meetings so called in any one year shall not exceed three;
and for the purpose of being submitted to the voters as aforesaid this act
shall take effect upon its passage.

Your question would seem to be answered by the application
of the principles stated in an opinion rendered to your depart-
ment July 7, 1911, in reply to a closely similar question.

The vote of the town to accept St. 1903, c. 281, is not to be
construed as a vote to issue bonds, notes or scrip. It is merely
an acceptance of the legal authority to, issue bonds, notes or
scrip for the purposes of the act at such later time or times as
it shall in accordance with law vote to exercise that authority.
In the exercise of that authority the town must follow the stat-
utory requirements. So far as St. 1903, c. 281, prescribes the
details of such issue it is to be followed; in other respects the
general law must control. The special act does not state
whether the vote to issue bonds, notes or scrip shall be a majority
or a two-thirds vote. The matter is, therefore, governed by
the provisions of R. L., c. 27, § 8, which requires, that debts
shall be incurred only in the case of a town, by "a vote of two
thirds of the voters present and voting at a town meeting,"
and in the case of a city, by a vote "of two thirds of all the
members of each branch of the city council."

It is provided by R. L., c. 27, § 21, that where a city accepts,
bv a vote of two-thirds of the legal voters, an act to supply it

JAMES M. SWIFT, ATTORNEY-GENERAL. 567

with water a "vote of the majority of the members of each
branch of the city council" shall be sufficient to authorize the
issue of bonds. By imphcation, it appears from this provision
of law that a vote merely to accept the act is not sufficient to
authorize the issue of bonds, and that the issue of bonds must
be authorized by a subsequent vote of the city or town. It also
appears by implication from this provision of the statutes that
in cases not within this exception a two-thirds vote is necessary
to authorize such an issue of bonds. There is no provision of
law authorizing a town which has accepted such an act to issue
bonds on a vote of less than two-thirds of the voters present
and voting at a town meeting.

Your question is, therefore, to be answered in the negative.

Hours of Labor — Cities and Towns — Acceptance of

Statute.

St. 1911, c. 494, providing in section 1 that "the ser\'ice of all laborers, workmen
and mechanics, now or hereafter employed ... by any city or town which
has accepted the provisions of section twenty of chapter one hundred and
six of the Revised Laws, or of section forty-two of chapter five hundred and
fourteen of the acts of the year nineteen hundred and nine, ... is hereby
restricted to eight hours in any one calendar day," is not in force in cities
and towns which have not accepted the pro\'isions of R. L., c. 106, § 20.
or of St. 1909, c. 514, § 42, but which had accepted the pro\-isions of St. 1899,
c. 344, a corresponding provision of an earlier law.

You have requested my opinion as to whether chapter 494 Jf"i{,'^^,^!lL"'
of the Acts of 1911 is applicable to and in force in cities and '"jbu"''"'
towns w^hich have not accepted the provisions of section 2(1 of
chapter 106 of the Revised Laws or of section 42 of chapter :)14
of the Acts of 1909, but which had accepted the provisions of
chapter 344 of the Acts of 1899, a corresponding provision of
an earlier law.

Section 1 of said chapter 494 of the Acts of 1911 is in part as

follows : —

The ser^ace of aU laborers, workmen and mechanics, now or horoaftcr
employed by the commonwealth or by any county therein or by any city

AuKUiit 15.

56S OPINIONS OF THE ATTORN'EY-GENERAL.

or town which has accepted the pro^"isions of section twenty of chapter
one hundred and six of the Re\'ised Laws, or of section forty-two of chapter
five himdred and fourteen of the acts of the year nineteen hundred and
nine, or by any contractor or subcontractor for or upon any pubhc works
of the commonwealth or of any county therein or of any such city or town,
is hereby restricted to eight hours in any one calendar day, . . .

In my opinion this inquiry must be answered in the negative.
In section 20 of chapter 106 of the Revised Laws it is pro\"ided
that such laws should be applicable to cities and towns which
had accepted the p^o^'isions of that section, " or the correspond-
ing provisions of earlier laws." Chapter 514 of the Acts of
1909, which prohibited requesting or requiring, etc., any em-
ployee to work more than eight hours in any one day, omitted
the foregoing phrase which had been contained in said section
20 of chapter 106 of the Re\'ised Laws, providing only that it
should apply to cities which had accepted the provisions of sec-
tion 20 of chapter 106 of the Re\'ised Laws and section 42 of
said chapter 514 of the Acts of 1909. In chapter 494 of the
Acts of 1911, in which the word "permit" was added to the
p^e^^ous pro\'isions of the act of 1909, it is also provided that
the act shall apply to cities and towns which had accepted the
provisions of said section 20 of chapter 106 of the Revised Laws
or of section 42 of chapter 514 of the Acts of 1909. It appears
clear, therefore, that in order to have chapter 494 of the Acts
of 1911 in force in any city or town, it must appear that such
city or town has accepted either the provisions of section 20 of
chapter 106 of the Revised Laws or section 42 of chapter 514
of the Acts of 1909.

The earlier provisions of law were less stringent than the
more recent legislation hereinbefore cited, and it appears to me
to have been the intent of the Legislature, when they made the
law more drastic and added the recent provisions to the general
law making eight hours a legal day's work, to require cities and
towns to accept the provisions of these more recent enactments.
As this is a penal statute, and so must be strictly construed,
I am of opinion that the act in question is not in force in such
cities and towns as are covered by your inquiry.

JAMES M. SWirr, ATTORNEY-GENERAL. 569

WoRKiiEx's Compensation Act — Employee — Common-
wealth AS Employer.

The provisions of St. 1911, c. 751, which establishes a sj-stem for the compensation
of employees for personal injuries received in the course of their emploj-ment,
are not applicable to the Commonwealth as an employer in its various dei)art-
ments nor to direct employees of the Commonwealth.

You have requested my opinion as to whether, under the To the st«te
provisions of St. 1911, c. 751, known as "the workmen's com- Education,
pensation act," the Massachusetts Board of Education is re- Au^m i9.
quired to insure teachers, janitors, engineers, working stu-
■fnts and others employed to do work about the grounds and
-lops of certain educational institutions within the jurisdiction
of the Board, such, for example, as the normal schools. The
Massachusetts Agricultural College, to which you refer in your
letter, is not strictly a State institution, and I will, therefore,
confine myself to answering the question with reference to those
institutions in which the persons referred to are employed di-
rectly by the Commonwealth.

While in the words of the Supreme Judicial Court of the
Commonwealth, "the act in question involves a radical de-
parture in the manner of dealing with actions or claims for
damages for personal injuries received by employees in the
course of their employment from that which has heretofore pre-
vailed in this Commonwealth" (209 Mass. 607), it is not, in
my opinion, to be considered as involving a radical change in
the law as to what shall constitute claims or causes of action
against the Commonwealth or in the law prescribing the manner
of the prosecution of such claims.

The Commonwealth, since it is sovereign, may be impleaded
in its own courts only by its clearly expressed consent, and
claims against the Commonwealth may be prosecuted only in
the manner and upon the terms assented to by the Common-
wealth by clear legislative enactment.

The statute in question is not by express provision made ap-
pUcable to the Commonwealth, and its provisions as to the
administration of the law are not consistent with an intention

570 OPINIONS OF THE ATTORNEY-GENERAL.

by the legislative body that the act should apply to the Com-
monwealth as the employer in its various departments, or to
persons directly employed by the Commonwealth in those de-
partments.

In my opinion, therefore, the statute in question is not to be
considered as applicable to the Commonwealth or to those di-
rectly employed by the Commonwealth within the field of the
jurisdiction of the State Board of Education.

License to operate Automobile — Revocation — Convic-
tion — Judgment of Guilty placed on File.

The Massachusetts Highway Commission, under the provisions of St. 1909, c. 534,
§ 22, that "a conviction of a violation of this section shall be reported forth-
with by the court or trial justice to the commission, which shall revoke
immediately the license of the person so convicted," is warranted in treating
a judgment of guilty placed on file by the trial court as a conviction.

Massachusetts Your inquiry of August 27 in substance requires my opinion
Commfssion. upon the qucstiou whether or not a judgment of guilty placed
September 17. ou file by the court constitutes a conviction within the meaning
of St. 1909, c. 534, § 22.

The section cited establishes, among other offences, that of
operating an automobile or motor cycle recklessl}^ or so that
the lives and safety of the public may be endangered, and your
communication states that the judgment or finding of guilty
was upon facts tending to prove this offence. The section then
proceeds as follows: —

A conviction of a violation of this section shall be reported forthwith
by the court or trial justice to the commission, which shall revoke immedi-
ately the license of the person so convicted. If it appears by the records
of the commission that the person so convicted is the owner of a motor
vehicle, or has exclusive control of any motor vehicles as a manufacturer
or dealer, the commission may revoke the certificate of registration of all
motor vehicles so exclusively owned or controlled. Whenever any person
so convicted appeals, the commission shall suspend forthwith the license
of the person so convicted, and shall order the hcense delivered to it, and
shall not reissue said license unless such person is acquitted in the appellate
court, or unless the commission in its discretion, after an investigation

JAMES M. SWIFT, ATTORNEY-GENERAL. 571

or upon a hearing, decides to reissue it. No new license or certificate
sliall be issued by the commission to any person convicted of a violation
of this section until after sixty days from the date of such final con\iction,
nor thereafter except in the discretion of the commission.

The question is not free from difficulty. In MunMey v. Iloyt,
179 Mass. 108, where it was provided in St. 189G, c. 397, § 9,
that the Board of Registration in Pharmacy, after hearing,
might suspend the registration and certificate of a registered
pharmacist, or might revoke such registration and certificate
altogether, but which contained the proviso that "the license or
certificate of registration of a registered pharmacist shall not
be suspended or revoked for a cause punishable by law until
after conviction by a court of competent jurisdiction," the court
held that the placing of the case on file after a plea of guilty
was a sufficient conviction to warrant the suspension or revoca-
tion of the license. The court said, at page 111: —

It is the intention of the statute to give a pharmacist charged with a
crime the right to a trial in the court ha\'ing jurisdiction of his offence,
but if his guilt be there established so that the court may impose sentence
according to its powers, then it is sufficiently established for the Board
of Pharmacy to act upon their finding, and to impose the penalty acconling
to their powers.

And again, at page 112: —

The problems before the respective tribunals are entirely difTcrcnt, and,
the guilt of the accused being established through con\'iction by plea
or verdict in the one and by the finding after a hearing in the other,
the accused is subject to such punishment as the respective tril)unal.s
may lawfully impose, and the right of either to proceed to judgment
is not affected by the fact that the other sees fit to decline to proceed to
judgment.

And it appears to be well settled that in its ordinary legal sense
the word "conviction," as used in the statutes of the Common-
wealth, signifies that the defendant has pleaded guilty or has
been found guilty by the verdict of a jury or the finding of a
court. 1 Op. Atty.-Gen. 499; Comwnnuralth v. Luchwood,

572 OPINIONS OF THE ATTORNEY-GENERAL.

109 Mass, 323. In some cases, however, the word is employed
in statutes to designate the judgment and sentence of the court
upon a verdict, finding or confession of guilt. Thus, in Com-
monwealth V. Kiley, 150 Mass. 325, under the provision of St.
1887, c. 392, that "the conviction by a court of competent
jurisdiction of a person licensed under the provisions of chapter
one hundred of the Public Statutes, for violation of any of the
provisions of said chapter, and the several acts in amendment
thereof, shall of itself make the license of said person void," the
court held that a verdict of guilty found by a jury in the Su-
perior Court, from which an appeal was taken, was not a con-
viction within the meaning of the statute above cited, and the
court said : —

Under this provision, tlie effect of a conviction of the kind named is
to deprive the defendant of a valuable right, without an opportunity for
further trial or investigation. We are of opinion that nothing less than a
final judgment, conclusively estabUshing the guilt, will satisfy the meaning
of the word "conviction" as here used. At any time before a final judg-
ment of the court a motion in arrest of judgment may be made, or the
verdict may be set aside upon a motion for a new trial, on the ground of
newly discovered evidence, or for other good cause; and, upon further
proceedings, it may turn out that the defendant is not guilty.

And see Commonwealth v. Gorham, 99 Mass. 420; Fay v. Har-
lan, 128 Mass. 244.

The distinction between the case of Munkley v. Hoyt and the
case of Commonwealth v. Kiley, and other similar decisions,
appears to rest upon the fact that in the latter the conviction it-
self voids or revokes the license so that the loss of the license
in effect becomes a part of the sentence rather than a conse-
quence of the verdict or finding of guilty, whereas in the former
case the determination of the guilt of the licensee did no more
than confer jurisdiction upon an independent tribunal to pro-
ceed with a separate inquiry resulting in the revocation or sus-
pension of the license.

The case presented by the inquiry of the commission appears
to lie somewhere between the above decisions. Under the pro-
visions of section 22, above quoted, which are mandatory, the

JAMES M. SWIFT, ATTORNEY-GENERAL. 573

commission is not vested with any discretion in the premises,
and their function in connection with the revocation of the
license is purely ministerial, so that at least to the extent of
making the revocation of the license a necessary consequence of
the conviction of the licensee, the statute resembles that con-
sidered by the court in Commonicealth v. Kilcy. Upon the
other hand, the provision of section 22 that "whenever any per-
son so convicted appears, the commission shall suspend forth-
with the license of the person so convicted," appears to con-
template action upon the part of the commission before the final
judgment which constitutes a conviction as defined in Common-
ivealth V. Kiley. The purpose of the section is undoubtedly to
protect the public against the reckless operation of automobiles
or motor cycles.

Taking into consideration that the purpose of section 22 is
to secure the safety of the public upon highways where auto-
mobiles and other motor vehicles may be operated at a high
rate of speed, it is apparent that there is sound and adequate
reason why a person who has pleaded or has been found guilty
of reckless operation should not be permitted to continue operat-
ing until a final judgment has been rendered in his case, but
should be forthwith deprived of his license, not as a punishment
for the offence but as a measure of protection to the public.
This, I am advised, is the view heretofore adopted by the com-
mission in dealing with similar cases. While the question can-
not be said to be entirely free from doubt, I am of opinion that
for the reasons above discussed and in view of the puri)ose of
the statute and the obvious considerations of public safety
involved, the commission is so far warranted in treating a judg-
ment of guilty as a sufficient conviction to require the revoca-
tion of the license of the person so convicted as not to be
required to change the policy already pursued by it, until the
precise point has been adjudicated otherwise by the courts.

574 OPINIONS OF THE ATTORNEY-GENERAL.

Trust Company — Savings Department — Payment of
Fixed Dividend requiring Transfer of Funds from
General Banking Fund of Company.

The provision of St. 1908, c. 520, § 3, that the accounts of the savings department
of a trust company "shaJl be kept separate and distinct from the general
business of the corporation," prohibits the promise of a fixed dividend or
rate of interest upon money deposited in the savings department of a trust
company, which for its maintenance requires a transfer of funds from the
general banking department of the company to the savings department.

CommiMf(?ner YouF letter of September 24 requires my opinion as to the
Octo^bfr2. authority of a trust company which has estabhshed a savings
department, under the provisions of St. 1908, c. 520, to promise
to pay a definite rate of interest or dividends upon money de-
posited therein, any deficiency in the earnings of the savings
department to be made up by a transfer of funds necessary to
complete the required amount of dividends or interest from the
general banking department of the trust company.
St. 1908, c. 520, §§ 1, 2 and 3, are as follows: —

Section 1. Every trust company soliciting or receiving deposits (a)
which may be withdrawn only on presentation of the pass-book or other
similar form of receipt which permits successive deposits or withdrawals
to be entered thereon; or (6) which at the option' of the trust company may
be withdrawn only at the expiration of a stated period after notice of
intention to withdraw has been given; or (c) in any other way which
might lead the public to believe that such deposits are received or invested
under the same conditions or in the same manner as deposits in savings
banks; shall have a savings department in which all business relating to
such deposits shall be transacted.

Section 2. All such deposits shall be special deposits and shall be
placed in said savings department, and all loans or investments thereof
shall be made in accordance with the statutes governing the investment
of deposits in savings banks. The duties of the board of investment
relative to the investment of such deposits shall be performed by a board
or committee appointed by the board of directors of such corporation.

Section 3. Such deposits and the investments or loans thereof shall
be appropriated solely to the security and payment of such deposits, and
shall not be mingled with the investments of the capital stock or
other money or property belonging to or controlled by such corporation,
or be liable for the debts or obligations thereof until after the deposits in

JAMES M. SWIFT, ATTORNEY-GENERAL.

said savings department have been paid in full. The accounts and trans-
actions of said savings department shall be kept separate and distinct
from the general business of the corporation.

Section 5 of the same chapter provides that —

All income received from the investment of funds in said savings depart-
ment, after deducting the expenses and losses incurred in the management
thereof and such sums as may be paid to depositors therein as interest
or dividends, shall accrue as profits to such corporation and may be trans-
ferred to its general funds.

It was the obvious purpose of the provisions of chapter 520,
above quoted, to place a trust company, so far as possible,
upon the same footing as a savings bank, and to require that it
be conducted entirely separate from the general business of the
trust company by which it is maintained. This being so, I am
of opinion that the promise of a fixed dividend or rate of in-
terest upon money deposited in the savings department of a
trust company requiring for its maintenance a transfer of funds
from the general banking department of the company to the
savings department, is contrary to the provision of St. 1908,
c. 520, § 3, above cited, that the accounts and transactions of
the savings department shall be kept separate and distinct from
the general business of the company, and is therefore unauthor-
ized.

Civil Service — Inspectors of Slaughtering.

Inspectors of slaughtering nominated and appointed under the provisions of St.
1911, c. 297, § 6, as amended by St. 1911, c. 534, § 2, are included within the
terms of Civil Service Rule 7, c. 11.

In behalf of the State Board of Health you have requested J,«,cWd
my opinion as to whether, in view of the provisions of St. 1911, "^^^^^^^^^
c. 297, and St. 1911, c. 534, relating to the nomination, ap- '^i-1 '
pointment and removal of inspectors of slaughtering, the mspec-
tors nominated and appointed under those provisions of law m
cities are subject to civil service law and rules.

576 OPINIONS OF THE ATTOKNEY-GENERAL.

St. 1911, c. 534, is entitled, "An Act relative to the appoint-
ment of inspectors of slaughtering," and provides, in section 2,
as follows: —

Section six of chapter two hundred and ninety-seven of the acts of the
year nineteen hundred and eleven is hereby amended by striking out said
section and inserting in place thereof the following: — Section 6. For the
purposes of this act inspectors shaU be appointed, shaU be compensated,
and may be removed in accordance with the provisions of law relating to
inspectors of animals, except that the appointment of such inspectors shall
be made by the local boards of health and except that in respect to such
inspectors the state board of health shaU perform the duties and exercise
the authority imposed by law upon the chief of the cattle bureau of the
state board of agriculture in respect to inspectors of animals. The first
appointments under this act shall be made within thirty days after its
passage.

The provisions of law relating to inspectors of animals re-
ferred to are contained in St. 1912, c. 608, § 6, providing —

The mayor and aldermen in cities, except Boston, and the selectmen
in towns shall annually, in March, nominate one or more inspectors of
animals, and before the first day of April shall send to the commissioner
of animal industry the name, address and occupation of each nominee.
Such nominee shall not be appointed until approved by the commissioner
of animal industry. ,

The provisions of law, other than the civil service law, which
are now in force with reference to the nomination, appointment
and removal of inspectors of slaughtering may, therefore, be
said to be in substance as follows: the boards of health in cities,
except Boston, and the boards of health in towns shall annually,
in March, nominate one or more inspectors of slaughtering, and
before the first day of April shall send to the State Board of
Health the name, address and occupation of each nominee.
Such nominee shall not be appointed until approved by the
State Board of Health. The aforesaid officials of cities and
towns may remove any inspector, and shall thereupon immedi-
ately nominate another in his place and send notice thereof as
prescribed above. In all cities at least one of the inspectors of
slaughtering shall be a registered veterinary surgeon.

JAMES M. SWIFT, ATTORNEY-GENERAL.

The question submitted, therefore, is whether, in spite of tlie
fact that the LegishUure has made provision by the statutes
quoted for the nomination and appointment of inspectors of
slaughtering by boards of health in cities, and for the approval
by the State Board of Health of those appointed, and for the
immediate filling of any vacancy which may occur, and in these
statutes has made no express reference to the civil service law
and rules, the position is nevertheless within tlie jurisdiction of
the Civil Service Commission.

R. L., c. 19, authorizes the appointment of a civil service
commission, and provides that the commissioners shall from
time to time prepare rules regulating the selection of persons to
fill appointive positions in the government of the Common-
wealth and of the several cities thereof. Of the rules made
under authority of that provision of law, Civil Service Rule 7,
providing for the classification of the official service, includes, as
class 11, "Inspectors other than inspectors of work and persons
doing similar work, except railroad inspectors, in the service of
the Commonwealth or of any city thereof."

In my opinion the term "inspectors," as used in the rule
quoted, is sufficiently broad to include inspectors appointed
under St. 1911, c. 534. The functions of the position of in-
spector of slaughtering, and the nature of the office itself, are
not such as to bring the position within any of the general
statutory exceptions from the application of the civil service
law provided by R. L., c. 19, § 9, and its amendments. The
fact that the successful performance of the work required in the
position calls for the special qualification of professional train-
ing does not in itself except the position from the application of
civil service law^ and rules. I am not aware of any statute
which specifically excepts the office from the civil service
law.

The position of inspector of slaughtering must, therefore, be
held to be within the jurisdiction of the Civil Service Commis-
sion unless it can be said that the provisions of St. 1911, c. 297,
and St. 1911, c. 534, show an intention on the part^f the Legis-
lature so inconsistent with the intention to subject the position

578

OPINIONS OF THE ATTORNEY-GENERAL.

to civil service law and rules as by implication to exempt the
office therefrom.

In my opinion the statute is not so to be construed. At the
time when the Statutes of 1911 were enacted inspectors in the
service of cities were in the classified list of the civil service
rules. The Legislature must be presumed to have known that
the inspectors whose appointment was provided for by the Stat-
utes of 1911 would be subjected to civil service law and rules
unless they were expressly exempted therefrom by action of the
Legislature. The Legislature is, therefore, in my opinion, to
be considered as having provided that the local boards of
health and the State Board of Health might respectively nom-
inate, appoint and approve, but only subject to existing laws.
It is to be noted that the effect of such construction is not to
nullify the power of nomination, appointment and approval be-
stowed upon the local boards of health and the State Board of
Health, but merely to limit those powers to the extent that
nominations and appointments must be made from the certified
list of the Civil Service Commission, and the procedure with
reference to the nomination, appointment and removal of the
officials in question must be governed by civil service law and
rules.

Town — Notes — Certification — Director of Bureau of
Statistics — Vote to authorize Selectmen to refund
Debt "upon the Passage of an Act authorizing the
Same."

The vote of a town at a town meeting held on March 4, 1912, appro\-ing the action
of the selectmen in asking the Legislature to authorize such town to refund
its debt, and authorizing the selectmen "to refund said debt upon the passage
of an act of the Legislature authorizing the same," does not constitute a
valid acceptance of the authority to refund the debt in question, conferred
by a statute passed on March 28 follo^\'ing, and the Director of the Bureau
of Statistics should not certify notes issued in accordance with such vote.

You have requested my opinion as to what action should be
taken bv vou with reference to a series of notes which the

To the
Director of
the Bureau
of Statistics.

November?, towu of Nortli Reading desires to issue under St. 1912, c. 343,

JAMES M. SWIFT, ATTORNEY-GENERAL. 579

and which have been presented to you for certification under the
provisions of St. 1910, c. 616, as amended by St. 1912, c. 45.
The facts from which the question arises are as follows: in
the warrant for the town meeting of North Reading, held on
March 4, 1912, appeared the following: —

Article 16. To see if the town will approve of the action of the select-
men in asking the Legislature to authorize the to^^•n to refund its debt
amounting to $9,600, and will authorize the selectmen to refund said debt
upon the passage of an act of the Legislature authorizing the same.

Pursuant to that article the town voted as follows: —

Article 16. Under Article 16, upon motion of Mr. A. G. Barber,
voted to approve the action of the selectmen in asking the Legislature to
authorize the town to refund its debt amounting to S9,600, and to author-
ize the selectmen to refund said debt upon the passage of an act of the
Legislature authorizing the same.

The act of the Legislature upon the subject-matter referred
to in the vote of the town was passed as St. 1912, c. 343, on
March 28, 1912, and took effect upon its passage. That act
provides as follows : —

Section 1. For the purpose of paying certain outstanding notes
amounting to nine thousand six hundred dollars, the toA\'n of North Read-
ing is hereby authorized to borrow the said sum and to issue notes therefor.
One of the said notes shall be payable in each year after the said loan is
made, and the amount of the first nine notes so issued shall be one thou-
sand doUars each, and the amount of the tenth note shall be six lunulred
dollars. The said notes shall be signed by the treasurer and countersigned
by the selectmen of the town, and shaU bear interest at a rate not exceeding
four and one half per cent per annum. The money required to pay tlic
interest on said notes in each year, and that part of the principal which
becomes due in that year, shaU be raised by taxation in the same manner
in which the other expenses of the iovm are provided for.

Section 2. This act shall take effect upon its passage.

The specific question presented by you is whether the v..tc
quoted above constitutes sufficient authority to warrant the
issue of the notes in question and their certification by you
without further vote of the town.

580 OPINIONS OF THE ATTORNEY-GENERAL.

In my opinion the question is to be answered in the negative.

At the time when the town meeting was held, on March 4,
1912, I assume that the town had no existing authority to re-
fund the debt in question. It is at least clear that the vote of
the town on that date was not effective to authorize the refund-
ing of the debt under any other legislation than that of 1912.

The vote passed at the meeting of March 4, 1912, was an
attempt to anticipate authority which the town had not yet
acquired. At the time when the town thus purported to au-
thorize the exercise of authority which it expected the Legis-
lature to confer upon it the town did not know definitely that
any such authority would be conferred upon it or what the
measure or form of the authority conferred would be if con-
ferred. It was possible that the Legislature might grant the
authority in the terms asked by representatives of the town,
or withhold it completely, or grant it with such qualifications
and conditions that the act when passed would not be acceptable
to the town.

Upon these facts the town cannot be considered to have ac-
cepted by valid action a grant of authority which had not in
fact been offered to it at the time of the vote and the form and
terms of which it could not foretell.

Furthermore, the vote itself is too indefinite in its provisions
to be effective. Since the act of March 28, 1912, had not been
passed when the vote was taken, and since there was no cer-
tainty as to what the final form of the act might be, it is not
permissible to read into the vote of March 4, 1912, the pro-
visions of the act which was passed on March 28, 1912.

Considering the vote by itself, therefore, and apart from the
statute, as it must be considered, the vote appears to be en-
tirely lacking in any provisions as to the rate of interest, the
amount of the proportionate payments, and the terms of the
bonds or notes to be issued. Such a vote, without a statute to
be read into it or construed with it, is inadequate to authorize
the officials of the town to take the necessary steps for the
issuing of the notes in question.

There is no provision in St. 1912, c. 343, that the town treas-

JAMES M. SWIFT, ATTORNEY-GENERAL. 581

iirer or other officials of the town may issue the notes without
further vote of the town. Where the Legislature intends to
authorize such action by the town treasurer without further
vote of the town, it expresses that intention. St. 1912, c. 45S,
is entitled, "An Act to authorize the town of Essex to refund
certain indebtedness," and section 3 of that statute provides as
follows: —

The treasurer of the to\\Ti of Essex, with the approval of the select-
men, is hereby authorized, ^vathout further vote of the town, to incur
indebtedness under the provisions of this act for which said town shall
be liable, and to issue notes of the town therefor in accordance with law.

If chapter 343 of the Acts of 1912 contained such a provision
quite a different situation would be presented.

Upon the present state of facts, therefore, I have to advise
you that in my opinion you should not certify the series of
notes w^hich has been presented to you for certification.

Public Records — Records of Public or Incorporated
Hospitals — Inspection.

Under the provisions of St. 1905, c. 330, § 3, that the records of hospitals supported
in whole or in part by contributions from the Commonwealth or from any
municipality, and incorporated hospitals offering treatment to patients free
of charge or conducted as public charities, "shall not be open to public
inspection until they are produced in court by the person ha-v-ing the custody
of the same," the superintendent or other officer in charge of such institu-
tion is not required or permitted to furnish any person with a copy of any
part of such record.

I have received your letter stating that you have received ;^^.,'J;^ j*^;"^
a request from an attorney representing a patient who was )\;;,'^;;1" ''"*''
formerly under the care of the Worcester State Hospital, that sovemfM.rM.
you furnish a detailed record of the history of the patient's
case, and asking my opinion upon the questions, first, whether
you are compelled by law to furnish a copy of the records to
the person requesting it; and second, whether, if not compelled
to furnish such copy, it is lawful for you to furnish it if you
deem it best.

582

OPINIONS OF THE ATTORNEY-GENERAL.

The answers to both questions are found in the provisions of
St. 1905, c. 330. The amended provisions are as follows: —

Section 1. Hospitals supported in whole or in part by contributions
from the Commonwealth or from any municipahty, incorporated hospitals
offering treatment to patients free of charge, and incorporated hospitals
conducted as public charities, shall keep records of the cases under their
care and the history of the same in books kept for that purpose.

Section 2 [as amended by St. 1908, c. 269]. Such records, and similar
records kept prior to April twenty-fifth, nineteen hundred and five, shall
be in the custody of the person in charge of the hospital, and shall be
admissible as evidence in the courts of the Commonwealth as to all matters
therein contained.

Section 3. Section seventeen of chapter thirty-five of the Revised
Laws shall not apply to such records, and they shall not be open to public
inspection until they are produced in court by the person having the
custody of the same.

You are, therefore, not only not compelled to furnish a copy
of the records, but by statutory provision the furnishing of such
copy is expressly prohibited, and the usual provision of law that
every person having the custody of public records shall at rea-
sonable times permit inspection of those records and furnish
copies thereof on payment of reasonable fees, is made inappli-
cable to the records of patients in a State insane hospital.

Lottery — Element of Chance — Voting Contest.

An arrangement or contract entered into by a foreign corporation dealing in ponies,
with certain merchants and managers of theatres within the Commonwealth,
by which each such merchant or manager contracting with the pony company
issues to every customer for each 25 cents received 25 votes, which may be
cast by the bearer in favor of any contestant in a contest in which the person
receiving the highest number of votes is entitled to a pony and outfit from
such company, involves no element of chance, and therefore does not con-
stitute a lottery within the meaning of the several sections of R. L., c. 214,
which prohibit lotteries within the Commonwealth.

To the Chief You havc rcquestcd my opinion as to whether the operation

t"ctPoHce. of a certain arrangement entered into by various managers of

November 22.

theatres and other buildings licensed by your department is
subject to the provisions of the laws of this Commonwealth

JAMES M. SWIFT, ATTORNEY-GENERAL. 583

prohibiting setting up, promoting, permitting, advertising, or in
any manner participating or assisting in the operation of a
lottery.

The arrangement in question is substantially as follows: a
pony company of Ohio makes contracts with various theatre
owners and merchants by the terms of which a voting contest
is carried on in connection with the management of the theatre
or business for the purpose of advertising the ponies of the Ohio
company. Each theatre owner or merchant contracting with
the pony company issues to every customer for each 2o cents
received, either for admission tickets or for merchandise, 25
votes. These votes so received may be cast by the bearer in
favor of any contestant, and the contestant securing the highest
number of votes receives a pony and outfit from the Ohio com-
pany. In case of a tie the value of the pony and outfit is
divided among those having an equal number of votes.

Without assuming to refer to all the provisions of Massachu-
setts law" aimed at the prevention of the operation of lotteries,
most of which provisions are embodied in chapter 214 of the
Revised Laws, the following section may be cited as fairly illus-
trating the policy of the law" upon the subject : —

Section 7. Whoever sets up or promotes a lottery for money, or by
way of lottery disposes of any property of value, or under the pretext of a
sale, gift or delivery of other property or of any right, pri\-ilege or thing
whatever disposes of or offers or attempts to dispose of any property, with
intent to make the disposal thereof dependent upon or connected with
chance by lot, dice, numbers, game, hazard or other gambUng device,
whereby such chance or de\ace is made an adchtional inducement to the
disposal or sale of said property, and whoever aids either by printing or
writing, or is in any way concerned, in the setting up, managing or drawing
of such lotterj', or in such disposal or offer or attempt to dispose of prop-
erty by such chance or de\ice, shall for each offence be punished by a fine of
not more than two thousand dollars or by imprisonment for not more
than one year.

"Lottery" is defined in the Century Dictionary as follows: —

1. Distribution of anything by lot; allotment; also, the drawing of
lots; determination by chance or fate; random choice; matter of chance;

584 OPINIONS OF THE ATTORNEY-GENERAL.

as, the lottery of life. 2. A scheme for raising money by selhng chances
to share in a distribution of prizes; more specifically, a scheme for the
distribution of prizes by chance among persons purchasing tickets, the
coiTespondingly numbered slips or lots, representing prizes or blanks,
being drawn from a wheel on a day previously announced in connection
with the scheme of intended prizes. 3. The lot or portion falling to one's
share; a chance allotment or prize.

In all these definitions chance is the essential element. If
the element of chance is absent the things which are necessary
to constitute a lottery are not present.

An analysis of the plan submitted as that operated under the
contract between the pony company and the theatre managers
and merchants fails to reveal any element of chance. Every-
thing is determined by a definite and invariable rule in advance,
except the question as to who shall receive the votes which are
cast, and that question is in no way determined by chance.
Tickets of admission and articles of merchandise are for sale
to everybody. Everybody who pays 25 cents, or any multiple
thereof, either for tickets or merchandise receives a certain fixed
number of votes for each 25 cents paid. Each person having
received his votes is free to cast them for w'homsoever he
chooses, and his own choice is determined absolutely and solely
by his own preference, which is expressed at his own volition.
Whether his personal choice proves to be the winner of the
contest depends not at all upon chance but merely upon
whether a sufficient number of other voters have exercised their
will in the same manner and given effect to the same pref-
erence, and that question is determined not by lot or by hazard
but by the ordinary processes of arithmetic.

In my opinion, therefore, the arrangement in question
is not a lottery and is not within the scope of the description
of the kindred evils for the suppression of w^hich provision
is made by chapter 214 of the Revised Laws, and its amend-
ments.

While no similar arrangement appears to have been under
the consideration of the courts of this Commonwealth, a discus-
sion of a case very similar in its facts is to be found in the

JAMES M. SAVIFT, ATTORNEY-GENERAL. 5ij5

opinion of the court in Quatsoe v. Egglesion, 42 Ore. :!1.-), in
which the court held that since "the award of the })ian().s wliich
are proposed to be given away as an inducement is not made
by chance or lot, but by the affirmative and conscious act and
will of the holders of tickets obtained with goods purchased at
the defendant's store," the scheme did not constitute a lotterv.

Insurance — Steam Boilers — Inspection by Insurance
Companies — Certificate.

Under the provisions of St. 1907, c. 465, § 17, as amended by St. 1912, c. 531, § 7,
that "insurance companies engaged in the business of inspecting and insuring
steam boilers shall, after each internal and external inspection, if the lx)iler
and its appendages conform to the rules formulated by the Board of Boiler
Rules, and if they deem the boiler to be in safe working condition otherwise,
issue a certificate of inspection . . . ," it is the duty of an insurance com-
pany making such inspection to issue a certificate upon each inspection with-
out regard to the purpose for which such inspection is made.

You have requested my opinion as to the construction to be to the chief
given to St. 1907, c, 465, § 17, as amended bv St. 1912, c. 581, District Folic*.

1912

§ 7, with reference to the inspection of steam boilers by in- December i.
surance companies engaged in the business of inspecting and
insuring steam boilers within this Commonwealth. The statute
in its amended form provides as follows: —

Insurance companies engaged in the business of inspecting and iasuriug
steam boilers shall, after each internal and external inspection, if the
boiler and its appendages conform to the rules foiTOulated by the l)oard
of boiler rules, and if they deem the boiler to be in safe working
condition otherwise, issue a certificate of inspection stating the maxi-
mum pressm-e at which the boiler may be operated. This maximum
pressure shall be detennined under the rules established by the hoard of
boiler rules.

It appears that certain companies duly authorized to insure
steam boilers in this Commonwealth from time to time inspect
boilers upon which the owners desire to place insurance, or in-
spect such boilers for the information of the owner or pro-

586 OPINIONS OF THE ATTORNEY-GENERAL.

spective purchaser, and that these companies contend that they
are not required by the law to issue certificates after inspections
for such purposes.

Your question is whether the insurance companies authorized
to engage in the business of insuring and inspecting boilers in
this Commonwealth are required by the statute to issue a cer-
tificate of inspection after an inspection for such purposes as
those above mentioned.

The statute prescribes that after each internal and external
inspection, if the boiler and its appendages conform to the
rules, and if it is deemed to be in safe working condition other-
wise, a certificate of inspection shall be issued. The provision
is not that after every annual inspection, or that after every
regular inspection, or that after every inspection which the in-
surance company chooses to designate as an inspection made in
accordance with the requirements of law a certificate shall be
issued. No exception is made by the terms of the statute. An
inspection is an inspection, whatever its object, and so far as
appears from the statute one internal and external inspection
does not dift'er from another. The statute does not fix any
time for making inspections. It merely provides that inspec-
tions shall be made at intervals of not piore than one year.
It is, therefore, not open to the insurance companies to desig-
nate one of several inspections as the inspection required by
law, and to refuse to issue a certificate upon any other inspec-
tion. It is not open to the insurance companies to make dis-
tinctions between inspections which the statute itself does not
make.

From the comprehensive language used in the statute it
would seem to have been the intent of the Legislature that the
latest inspection should be the one upon which the certificate
in force is based, and to have the certified condition of the
boiler kept up to date as closely as possible. That such was
the intent of the Legislature is also indicated by the provisions
of section 10 of chapter 465 of the Acts of 1907, which pre-
scribe that every insurance company shall forward to the chief
inspector of boilers, within fourteen days after each internal

JAMES M. SWIFT, ATTORNEY-GENERAL. 5S7

and external inspection, reports of all boilers so inspected by it.
That is in effect a requirement that the chief inspector of
boilers shall have the benefit of all information up to date
which the insurance companies have acquired in the transaction
of their business.

In my opinion, therefore, the interpretation given to the stat-
ute by you is correct, and the insurance companies are required
to issue a certificate after every inspection, whatever may have
been the object of or reason for the inspection.

588 OPINIONS OF THE ATTORNEY-GENERAL.

1908
August 28.

OPINIONS UPON APPLICATIONS FOR LEAYE TO FILE

INFORMATIONS IN THE NAME OF THE

ATTORNEY-GENERAL.

Attoeney-General ex rel. v. Visitors of the Theological
Institution in Phillips Academy in Andover.

Attorney-General — Public Charitable Trust — Trust Fund —

Mandamus.

Under the provisions of R. L., c. 7, § 6, which makes it the duty of the Attorney-
General to enforce the due application of funds given or appropriated to
public charities within the Commonwealth, and to prevent breaches of trust
in the administration thereof, the Attorney-General -nill not sanction, by the
use of his name upon a petition for a writ of mandamus, the expenditure of
trust funds for the purpose of deciding a purely technical question, when in
his opinion no public advantage will be served thereby.

This is an application to the Attorney-General by Rev. Wil-
liam E. Wolcott, D.D., and Mr, Willianl Shaw, to sign an in-
formation praying that a writ of mandamus issue to the visitors
of the Theological Institution in Phillips Academy in Andover,
commanding them to hold a meeting at which the said trustees
shall be duly summoned to appear, and to determine thereat
whether, in the removal and affiliation of Andover Theological
Seminary with Harvard University and in the terms and condi-
tions of said affiliation and in the general plan of such removal
and affiliation, said trustees are not acting contrary to the stat-
utes of the foundation and in violation of the terms of their
trust.

Section 6 of chapter 7 of the Revised Laws provides that: —

He [the attorney-general] shall enforce the due application of funds
given or appropriated to public charities within the commonwealth,
prevent breaches of trust in the administration thereof . . .

DANA MALONE, ATTORNEY-GENERAL. 589

On March 12, 1908, the trustees of Andover Theological Sem-
inary (eleven of the trustees being recorded for the affiliation,
and one failing to vote, there being twelve members of tiie
board) voted to remove from Andover to Cambridge, and also,
by official vote and mutual agreement made with the authori-
ties of Harvard University, they afi'ected an affiliation of the
tw^o institutions. The terms of affiliation provide in part that
the organization of the seminary shall be maintained without
change, all its trusts being executed as at present.

The trustees are given express authority to remove the sem-
inary by the statutes of the founders (1778) : —

Whereas, in the course of human events, the period may arrive, when
the prosperity of this Institution may be promoted by removing it from
the place v/here it is founded; if it shall hereafter be judged, upon mature
and impartial consideration of aU circumstances, by two-tliirds of the
Trustees, that for good and substantial reasons, which at this time do not
exist, the true design herein expressed wiU be better served, by ^emo^^ng
the Seminaiy to some other place, it shall be in their power to remove it
accordingly; provided that if this event shall ever take place, there shall
be fairly and truly entered on the Clerk's records, all the reasons whereon
the determination was grounded, and the same shall be subscribed by the
members who effected the detennination; but unless the good of man-
kind shall manifestly require it, this Seminary shall never be rcmoA'cd
from the South Parish in the Town of Andover.

Article XX. of the associate statutes defines the powers and
duties of the board of visitors, as follows: —

The powers and duties of the Board of Visitors, thus constituted and
organized, shall be as follows, namely: —

1. To visit the Foundation once in every j^ear, and at other times, when
regularly called thereto;

2. to inquhe into the state of this our Fund and the management of
this Foundation, with respect both to Professors and Students;

3. to determine, interpret, and explain the Statutes of this Foundation
in all cases, brought before them in their judicial capacity;

4. to redress grievances, both with respect to Professors and Students;

5. to hear appeals from decisions of the Board of Trustees and to remedy
upon complaint, duly exhibited in behalf of the said Professors and Stu-
dents;

590 OPINIONS OF THE ATTORNEY-GENERAL.

6. to review and reverse any censure passed by said Trustees upon any
Professor or Student in this Foundation;

7. to declare void all Rules and Regulations, which may be inconsistent
with the original Statutes thereof;

8. to take care that the duties of every Professor in this Foundation
be intelligently and. faithfully discharged, and to admonish or remove
him, either for misbehavior, heterodoxy, incapacity, or neglect of the
duties of his office;

9. to examine into the proficiency of the students, and to admonish,
suspend, or deprive any student for negligence, contumacy, or any heinous
crime, committed against the laws of God or the Statutes of this Founda-
tion;

10. and in general, to see that our true intentions, as expressed in these
Statutes, be faithfully executed; always administering justice impartially,
and exercising the functions of their office in the fear of God, according
to the said Statutes, the Constitution of this Seminary and the laws of
the Land.

At a meeting of the visitors, on the thirteenth day of May,
1908, upon the petition of these applicants, praying the Board
to decide whether the trustees, in passing a vote to remove the
seminary and to affiliate with Harvard University, had not
acted contrary to the statutes of the seminary and perverted
their trusts, the following vote was passed : —

The visitors feel that they should not entertain the petition, because
they are not satisfied that the visitors have a right to review the action
of the trustees in deciding to remove the seminary from Andover to Cam-
bridge, and to affiliate with Harvard, and because they are not satisfied
that the petitioners have a right to institute such a petition.

It is claimed that the visitors, who are three in number, have
the power, and that it is their duty, to review the action of the
trustees in voting to remove said seminary from Andover and to
affiliate with Harvard University; that, contrary to the terms of
their appointment and contrary to the statutes of the foundation
under which they hold office, they have neglected to take official
cognizance of the votes of the trustees of said seminary with
reference to such removal.

As to the power of the visitors, Mr. Justice Knowlton, in
Smyth V. PMUips Academy, 154 Mass. 551, 554, says that: —

DANA MALONE, ATTORNEY-GENERAL. 591

They [the statutes] leave the Avhole management and control of the
theological institution in the board of trustees, who constitute tlie corpora-
tion, and who hold the property, subject only to a ^^sitato^ial power in
the board of visitors, whose general duty is to visit the corporation and
see that the trustees manage the institution in conformity with the statutes,
and, if errors or abuses are discovered, to con-ect them.

The trustees have been advised as to their riglits and duties
by eminent lawyers, from whose opinions I quote: —

It follows . . . that the visitors camiot revise, and they ha^'e no power
to negative, a decision by the tmstees to change the location of the semi-
naiy, if determined upon by the ti-ustees m an honest exercise of their judg-
ment, and not from corrupt motives or ulterior purposes. Sucli action
by the trustees is not maladministration, but a properly exercised adminis-
trative function.

Courtesy may suggest that the visitors be infoimed by the trustees of
their intended plan, but neither the letter nor the spu'it of the original
foundation or of the associate foundation gives the visitors any legal right
to be consulted or any joint power of action or any power to aimul the
action of the trustees.

This is not a case involving the maladministration or misap-
plication of trust funds, or the denial of the benefits or emolu-
ments of the foundation to those entitled thereto; but I am
asked to sign an information against the board of visitors for
alleged misconduct in exercising its general visitatorial powers.

From a careful examination of article XX., above quoted,
which defines the powers and duties of the board of visitors, I
am satisfied that the board of visitors have no right to review
the action of the trustees in voting to remove to Cambridge.
The power of removal is expressly given to the trustees by the
statutes of the founders, with no provision therein for review
by the visitors, nor do I find such power in said article XX..
which seems to me to deal especially with the doctrinal creeds
and requirements to be observed by professors and students,
the duty of explaining the statutes in reference thereto, as well
as redressing grievances in respect both to i)rofessors and stu-
dents, and seeing that the professors and students have the
benefits of the foundation as provided in the statutes.

592 OPINIONS OF THE ATTORNEY-GENERAL.

Some weight should be given to the action of the board of
visitors, upon which there is an able lawyer. In refusing to
act, they say "they are not satisfied that the visitors have a
right to review the action of the trustees," which, it seems to
me, is equivalent to saying, in this case, that in the opinion of
the visitors they have no such right.

In the event of the granting of the writ by the court, I am
not satisfied from any evidence which I have that the visitors
would vote not to remove and affiliate, if they had the power.
An opinion of an Attorney-General is quoted by the petitioners,
as follows : —

It is not necessary that the Attorney-General should be satisfied that
the information which he is called upon to sign can be maintained. If the
questions raised by it are doubtful, and the matter is one of public impor-
tance, it is his duty to sign the information, even though he may be of
opinion that it cannot be maintained. (Vol. II., pp. 635, 636.)

But in this case, if there is a technical question which might
be tried out, I do not believe in sanctioning the expenditure of
trust funds to try out such a question in the courts, when, in
all probability, no public advantage will be served.

Upon a mature and impartial consideration of all the circum-
stances, I am clearly of opinion that, in the exercise of the dis-
cretion entrusted to the Attorney-General, I should not sign
the petition.

Peirce & Wadsworth, for the petitioners.
Burton P. Gray, for the respondent.

DANA MALONE, ATTORNEY-GENERAL. 593

Attorney-General ex rel. v. Louis X. Richer.

Statute — General and Particular — City Charter oj Marl-
borough — Superintendent of Streets — Appointment — Attor-
ney-General — Quo Warrajito — Local Question.

R. L., c. 26, § 36, which pro\'ides that "uo member of the city council shall, during
the term for which he was chosen, either by appointment or by election of
the city council or of either branch thereof, be eligible to any office the salary
of which is payable by the city," is superseded with respect to the city of
Marlborough by St. 1890, c. 320, § 17, the charter of such city, pro\adiDg
that " no person shall be eligible by appointment or election . . . to any office
of emolument the salary of which is payable out of the city treasury, who
at the time of such election or appointment is a member of the city council; "
and an alderman of such city elected for the year beginning in January, 1908,
who has taken the oath of office and participated in the business transacted
by the board of aldermen, and upon the sixth day of January has resigned
therefrom, may legally be appointed superintendent of streets by the mayor.

An information in the nature of quo warranto will be signed by the Attorney-
General only when the construction of a law which affects the public generally
is involved, or where the Commonwealth is interested in the determination
of the question raised; and he will not sign such an information for the
purpose of determining a question purely local in its application.

This was a petition to the Attorney-General for the use of his i908

■^ "" . September 6

name upon an information in the nature of quo loarranto aganist

Louis N. Richer, to try his title to the office of superintendent
of streets in the city of Marlborough. Upon hearing, it ap-
peared that the respondent was elected an alderman of the city
of Marlborough for the year beginning in January, 190S, and
that on the sixth day of January, 1908, he duly took the oath
of office and participated in the business transacted by tiie
board of aldermen, at least to the extent of taking part in the
election of a chairman of such board; that thereupon he re-
signed from the board of aldermen, and was upon the same day,
to wit, Jan. 6, 1908, appointed superintendent of streets by
the mayor of said city, such nomination being duly confirmed
by the board of aldermen. The term of office for which the
respondent was so appointed was for a term of one year
from the first day of February, 1908, and he duly qualified and
took the oath of office as superintendent of streets on Jan.
16, 1908.

594 OPINIONS OF THE ATTORNEY-GENERAL.

The petition before me appears to be based upon the pro-
visions of R. L., c. 26, § 36, which is as follows: —

No member of the city council shall, during the term for which he was
chosen, either by appointment or by election of the city council or of either
branch thereof, be ehgible to any office the salary of which is paj'-able
by the city. (See St. 1886, c. 117.)

If the provision above quoted were applicable to and gov-
erned the appointment of the respondent, there could be httle
doubt of the illegality of such appointment. The charter of the
city of Marlborough, however, enacted in St. 1890, c. 320, con-*'
tained in section 17 a provision to the effect that: —

No person shall be ehgible by appointment or election by the mayor
and aldermen, or city council, to any office of emolument the salary of
which is payable out of the city treasury, who at the time of such election
or appointment is a member of the city council.

It is admitted that the respondent, at the time of his appoint-
ment to the office of superintendent of streets, had duly re-
signed from the office of member of the board of aldermen, and
was not, therefore, a member of the city council at the moment
of such appointment. R. L., c. 26, § ,36, above quoted, was
originally enacted in 1886, four years prior to the passage of
the act chartering the city of Marlborough, which was chapter
^ 320 of the Acts of 1890; so that the provision in the charter was
considered by the Legislature with chapter 117 of the Acts of
1886 in mind. It must therefore have been intended by the
Legislature to change the law so far as the city of jNIarlborough
was concerned.

That a subsequent legislative act repeals all prior acts repugnant to
it, is a principle which results from the unlimited nature of legislative
power. The last expression of the legislative will must be carried into
effect, as the law of the land. Brown v. Lowell, 8 Mete. 172.

It would therefore seem that the legislative intent was to re-
peal the general law as to the city of Marlborough. It has been
said that it would require very strong terms in a general act to

DANA MALONE, ATTORNEY-GENERAL. 595

show that it was intended to supersede a special act in order to
hold it to be such a repeal.

Here the two statutes are irreconcilable; they cannot be read
together; they cover the same subject-matter; and it therefore
appears to be the legislative will to repeal the prior general law
so far as Marlborough is concerned, it having been done with
full knowledge on the part of the Legislature of the provisions
of the statute of 188G.

This being the legislative will, I feel it my duty to rule, what
I believe to be the law, that the provision in the charter of the
city of Marlborough must govern, and that if it is desired to
change to conform to the general law, legislation should be
asked for.

-^ Informations in the nature of quo warranto, under the rule
established by my predecessors, are signed by the Attorney-Gen-
eral only when the construction of a law affecting the Common-
wealth generally is involved, or when the Commonwealth, as
such, is for any reason interested in the determination of the
question; but when the question is purely local, and one in
which the Commonwealth is in no way interested, the reason
for signing does not exist. In this case the question is a local
one, involving the construction of the city charter of Marl-
borough alone; and I am unable to find such a case, presenting
questions as to the construction of any law affecting the Com-
monwealth generally, as requires the Attorney-General to grant
the use of his name to an information in the nature of quo
warranto.

For both of the reasons above named the application is there-
fore refused.

William M. Brigham, for the petitioner.

James W. McDonald, city solicitor, for the respondent.

596 OPINIONS OF THE ATTORNEY-GENERAL.

MEMORANDUM.

Chapter 86 of the Resolves of 1908.

Flowage of Land in this Commonwealth by Erection of Dam in
Connecticut — Proceedings at Laiv — Suits between the States.

The Attorney-General has no authority to prosecute claims for the benefit of
private individuals except in the single instance of the unascertained
individuals who may benefit by a public charitable trust. The lawful erec-
tion of a dam in the State of Connecticut by a Connecticut corporation,
which results in the flowage of certain lands and highways within the
Commonwealth at certain times and seasons, does not cause damage of such
serious magnitude as would justify the Commonwealth in bringing legal
proceedings in courts of the United States.

By resolve of the Legislature approved May 1, 1908, it
was provided that: —

The attorney-general is hereby authorized and directed to inquire and
detennine to what extent, if any, the sovereignty of the commonwealth
has been violated by the Berkshire Power Company, a Connecticut cor-
poration, which, by the erection and maintenance of a dam across the
Housatonic river in the state of Connecticut, some distance southerly of
the line between said, state and the town of Sheffield in this commonwealth,
is alleged to have overflowed lands and highway in said town, causing
great hindrance to public travel and menacing the public health. And
the attorney-general is authorized to institute such proceedings in the
premises in courts outside of this commonwealth as he may deem expedient,
in the name and at the expense of the commonwealth.

This resolve is to be construed as calling the attention of
the Attorney-General to the situation which exists with ref-
erence to the construction by the Berkshire Power Company,
a Connecticut corporation, of a dam across the Housatonic
River in the State of Connecticut, and the consequent flow-
ing of adjacent lands in the town of Sheffield, in the Com-

DANA MALONE, ATTORNEY-GENERAL. 59;

monwealth of Massachusetts, which is stated to have caused
great hindrance to public travel and has menaced the public
health. From so much of the resolve as authorizes the At-
torney-General to institute proceedings in courts outside the
Commonwealth, it may further be inferred that it was the de-
sire of the Legislature that, should conditions warrant it, an
appropriate proceeding should be brought in the courts of the
United States or in the courts of Connecticut for the purpose of
abating the alleged nuisance.

In accordance with the desire of the Legislature as expressed
in this resolve, I have made a careful investigation of the ques-
tion presented therein, and have twice visited the locality
where the effect of the dam referred to is manifested, once in
the company of a competent engineer.

The facts in the case are, briefly stated, that the Berkshire
Power Company, a corporation organized under the laws of
Connecticut for the purpose, among others, of owning, con-
structing and operating power plants of various kinds for gen-
erating electricity, has constructed a dam across the Housatonic
Tiiver at North Canaan, Conn., the height of such dam being
al)out 6 feet, exclusive of flash boards. It is said that, taking
into consideration all the circumstances, the difi'erence between
the water above and below the dam is approximately 8 feet.
It further appears that the country above the dam is, com-
paratively speaking, flat, and that the raising of the water.
even to the extent specified, results in the flowing of a con-
siderable area of riparian land, including to some extent two or
three of the highways of the town of Sheffield.

No detailed estimate of the damage to the highways has
been presented to me. The flowed area is not permanently
below the level of high-water mark, except as to a very small
area, and the only effect of such flowing, of which I am ad-
vised, is to place water upon such highways and land at cert am
times and seasons, especially during what are called the spring
freshets, and to render a certain area of the land in the village
of Sheffield swampy. The dam of the Berkshire Power Com-
pany was erected under express authority of the State of Con-

598 OPINIONS OF THE ATTORNEY-GENERAL.

nectlcut in Special Acts of Connecticut, 1905, chapter 374, an
act which provides, for the payment of damages to any person
whose property is injured by the erection or maintenance of
such dam.

Attempts have been made to settle the damages so occa-
sioned to Massachusetts land owners, but in some cases these
have failed, and there has been considerable litigation in the
federal courts. It was there attempted to obtain an injunction
against the company, but it was jBnally held that the com-
plainant was estopped from claiming this form of relief, for the
reason that he had participated in negotiations for a settlement.
See Griffith v. Berkshire Power Co., and Hughes v. Berkshire
Poicer Co., 158 Fed. 219. The court did, however, intimate
that in the same proceeding the complainants might have their
damages assessed. See also Andrus v, Berkshire Power Co.,
145 Fed. 47, 147 Fed. 76, and 203 U. S. 596. It is clear,
moreover, that owners of property in Massachusetts who are
damaged have a remedy under the Connecticut statute, should
they go into Connecticut to enforce it. Brickett v. Haverhill
Aqueduct Co., 142 Mass. 394.

In any event, however, the Attorney-General has no author-
ity to prosecute claims for the benefit of private individuals,
except in the single instance of the unascertained individuals
who may benefit by a public charitable trust; and there his
power and duty in the premises rest upon the benefit which
accrues to the public generally by the proper administration
of a charitable trust, rather than upon any benefit which may
accrue to the individuals whom, because they are unascertain-
able, he represents. Even if the State should make the claims
of those individuals who have been damaged in their property
rights its own, and should attempt to pursue such claims in
the courts of the United States, where alone they may be so
pursued, it would be unavailing. See New Hampshire v.
Louisiana, 108 U. S. 76. If, therefore, any action upon the
part of the Attorney-General is required in the premises, it
must be upon the ground that the public health, convenience
and safety are affected to such a degree as to constitute a

DANA MALONE, ATTORNEY-GENERAL. 599

public nuisance, or that the rights of the Commonwealth of
Massachusetts, as a sovereign State, have been invaded, to
such an extent as to justify an appeal to the Supreme Court
of the United States for redress. It may be assumed that if
the Commonwealth w^ere dealing with a private individual or
corporation within the limits of its jurisdiction, the flowing of
the highways would constitute a public nuisance to the extent
that such individual or corporation might be indicted and
prosecuted therefor, if there were no reasonably proper ground
for such flowage. It does not follow, however, that because an
obstruction of the highway might be made the subject of a
criminal indictment, it is therefore, and for that reason alone,
a proper ground for action by the Attorney-General.

But it may be assumed that if an individual or corporation
within the jurisdiction of the Commonwealth had committed
the acts complained of, such acts, if unauthorized, would
justify interference by appropriate proceedings upon the part
of the Attorney-General in the interests of the general public
who use the highways. The precise question to be determined
is, therefore, whether or not such acts constitute a sufficient
ground for a proceeding by the Commonwealth, by its chief
law officer, in the Supreme Court of the United States, to vindi-
cate its sovereignty or to protect the lives or property of its
inhabitants from the acts of a citizen of another State, — for
such an action can be brought in no inferior court. Article III.,
section 2 of the Constitution of the United States provides that
the judicial power of the United States shall extend to "con-
troversies betw^een two or more states," and controversies "bc-
tw^een a state and citizens of another state;" and by the same
article and section it is also provided that in cases "in which
a state shall be a party, the supreme court shall have original
jurisdiction." See New Hampshire v. Louisiana, lOS U. S. 70,
86. Any action upon the facts here presented would un-
doubtedly be an action by a State against the inhabitants of
another State, within the meaning of the Constitution, and
would therefore have to be brought in the Supreme Court of
the United States. That such an action will lie, has long been

600 OPINIONS OF THE ATTORNEY-GENERAL.

established. Thus it was said in the late case of Georgia v.
Tennessee Copper Co., 206 U. S. 230, 237: —

The caution with which demands of this sort, on the part of a State,
for the rehef from injuries analogous to torts, must be examined, is dwelt
upon in Missouri v. Illinois, 200 U. S. 496, 520, 521. But it is plain that
some such demands must be recognized, if the grounds alleged are proved.
When the States by their union made the forcible abatement of outside
nuisances impossible to each, they did not thereby agree to submit to
whatever might be done. They did not renounce the possibility of making
reasonable demands on the ground of their still remaining gtiasi-sovereign
interests; and the alternative to force is a suit in this court. Missouri v.
m'nois, 180 U.S. 208, 241.

But the case presented must be one of serious and general
interest to the complainant. So, in Missouri v. Illinois, 200
U. S. 496, 521, the court said: —

Before this court ought to intervene, the case should be of serious magni-
tude, clearly and fully proved, and the principle to be applied should be
one which the court is prepared deliberately to maintain against all con-
siderations on the other side. See Kansas v. Colorado, 185 U. S. 125.

Is the case presented by the situation in the town of Shef-
field such a case that the highest court in/ the land would hold
that it was of such serious magnitude as would, between sov-
ereign and independent States, justify a resort to war? See
Missouri v. Illinois, 200 U. S. 518, 520. I say without hesi-
tation that it is not; that injuries of the character here com-
plained of have existed and have been tolerated if not recognized
by the courts of the several States for a long time. Indeed,
our own court has declared the principle which governs acts
of the character here set forth. In Mannville Co. v. Worcester,
138 Mass. 89, the court expressly recognized the possibility of
creating an easement upon land in one State by acts accom-
plished in another. That case was an action of tort by the
owner of a mill site in the State of Rhode Island for the diver-
sion of waters in Massachusetts. The court held that there
was no distinction between flowage and diversion, and in dis-

DANA MALONE, ATTORNEY-GENERAL. 601

posing of a contention that a servitude could not be created in
one State in favor of lands in another State, said : —

"We are unable to agree to tliis proposition upon cither principle or
authority. Every decision and dictum that we have found, bearing on
the precise point, is the other way. Slack v. Walcott, 3 Mason, oOS, 51(5;
Thayer v. Brooks, 17 Ohio, 489; Stillman v. White Rock Manfg. Co., 3
Woodb. & M. 538; Rimdle v. Delaware & Raritan Canal, 1 Wall. Jr. 275,
S. C. 14 How. 80; Foot v. Edwards, 3 Blatchf. 310.

We think that the cases wMch recognize civil, and even criminal, lia-
bility for flowing land in one State by means of a dam in another, are hardly
less pertinent. Howard v. Ingersoll, 17 Ala. 780; Wooster v. Great Foils
Manfg. Co., 39 Maine, 246; Eachus v. Illinois & Michigan Canal, 17 111.
534; Armendiaz v. Stillman, 54 Texas, G23; State v. Lord, 16 N. H. 357.
The defendant admits these cases to be law, and tries to distinguish them.
But we cannot assent to the distinction between discharging and with-
drawing water.

The court further observes : —

Of course the laws of Rhode Island cannot subject Massachusetts land
to a servitude, and, apart from any constitutional considerations, if there
are any, w-hich we do not mean to intimate, Massachusetts might prohibit
the creation of such servitudes. So it might authorize any acts to be done
within its limits, however injurious to lands or persons outside them.
But it does not do either. It has no more objection to a citizen of Rhode
Island owning an easement, as incident to his ownership of land in that
State, than it has to his owning it in gi'oss, or to his purchasing lands here
in fee. Questions might be conceived as to the transfer of such easements,
but they do not arise here. Slack v. Walcott, iibi supra. So far as their
creation is concerned, the law of Massachusetts governs, whether the motlc
of creation be by deed or prescription, or whether the right be one whicli
is regarded as naturally arising out of the relation between the two estates;
being created, the law of Rhode Island, by permission of that of Mas.sa-
chusetts, lays hold of them and attaches them in such way as it sees fit
to land there, Massachusetts being secured against anj^liing contrarj' to
its views of policy by the common traditions of the two States, and by
the power over its owti territorj^ which it holds in reserve.

In speaking of this case the court said, in Mulhall v. Fallon,
176Mass. 266, 267: —

We come then to the more difficult question, whether the plaintiff can
claim the benefit of the act. However this may be decided, it is not to be

602 OPINIONS OF THE ATTORNEY-GENERAL.

decided upon any theoretic impossibility of Massachusetts law conferring
a right outside her boundary lines. In Matmville Co. v. Worcester, 138
Mass. 89, where a Rhode Island corporation sought to recover for a diver-
sion of waters from its mill in Rhode Island by an act done higher up the
stream in Massachusetts, it was held, following earlier decisions, that
there was no such impossibility, although the point was strongly urged.
It is true that legislative power is territorial, and that no duties can be
imposed by statute upon persons who are within the limits of another
State. But rights can be offered to such persons, and if, as is usually the
case, the power that governs them makes no objection, there is nothing
to hinder their accepting what is offered.

Moreover, the Supreme Court of the United States has
recognized the same Hmitation, for in the case of Missouri v.
Illinois, 200 U. S. 496, the court said (p. 521): —

But it does not follow that every matter which would warrant a resort
to equity by one citizen against another in the same jurisdiction equally
would warrant an interference by this court with the action of a State.
It hardly can be that we should be justified in declaring statutes ordaining
such action void in every instance where the Circuit Court might intervene
in a private suit, upon no other ground than analogy to some selected sys-
tem of municipal law, and the fact that we have jurisdiction over contro-
versies between States.

The nearest analogy would be found in those cases in which an easement
has been declared in favor of land in one State over land in another. But
there the right is recognized on the assumption of a concun-ence between
the two States, the one, so to speak, offering the right, the other permitting
it to be accepted. Mannville Co. v. Worcester, 138 Massachusetts, 89.
But when the State itself is concerned, and by its legislation expressly
repudiates the right set up, an entirely different question is presented.

It seems to me that we have here exactly the case of a
servitude created in one State upon lands situated in another,
against which no provision has been enacted in the State where
the land is situated, and where full and adequate means of
assessing damages have been afforded to individuals or corpora-
tions in their property; and that, so far as concerns the flowing
of the land and the injury to private owners, there is no
ground for action upon the part of the Attorney-General.

DANA MALONE, ATTORNEY-GENERAL. G03

Upon the score of public health there is no evidence to show
that any such situation exists as requires the intervention of
the Supreme Court of the United States. The general public
appears to be affected only to a limited extent, even by the
flowing of riparian land and a section of some hundred yards
in length of a highway and lesser damages to one or two other
highw^ays in the town of Sheffield. When one contrasts the
statement of the situation at Sheffield, of the portion of the
public affected, and of the very slight grounds for action upon
the part of the Commonwealth as a sovereign State, with the
situation of which the State of Georgia complained, in Georgia
V. Tennessee Copper Co., supra, w^here the allegation of the bill,
that a wholesale destruction of forest, orchard and crops was
going on, and other injuries were being done and threatened in
five counties, was amply sustained by the proof ofl'ered to the
court, who found that noxious gas was carried by the wind
great distances and over great tracts of Georgia land, — it
seems hardly necessary to seek further authority for the prop-
osition that it would be impossible to prove a case based upon
the condition in Sheffield, which would bring an action by the
Commonwealth against the Berkshire Power Company, a cor-
poration and citizen of Connecticut, within the principle laid
down by the Supreme Court of the United States as governing
action by a State against a citizen of another State.

INDEX-DIGEST.

ABANDONMENT — Of State Highway 113
See State Highway. 2.

ABATEMENT — Of Nuisance — Juris-
diction of State Board of Health 85
See State Board of Health. 2.

ACCEPTANCE— Of Statute — Approved

by Majority of Qualified Voters 88
See Statute. 1.

Of Statute relating to Hours of Labor

— Cities and Towns . . 567

See Labob. 8.

ACCIDENT AND HEALTH DISA-
BILITY INSURANCE.

See Insurance.

ADJUTANT GENERAL — Volunteer
Militia — Constitutional Law —
Term of Office . . .546

The provisions of chapter II., section I.,
Article X. of the Constitution of the Common-
wealth, that "the governor shall appoint the
adjutant general," does not impose a limitation
upon the authority of the General Court to fix
and determine the tenure of office of the adju-
tant general, and a provision in a proposed
act having for its purpose the revision of the
organization of the volunteer militia, that
"the term of office of the adjutant general
shall be five years from the passage of this
act," would not be unconstitutional.

ADMINISTRATOR — Transfer to, of

Bonds of Commonwealth . 104

See Treasurer and Receiver-
General.

ADOPTION — Of State Minor Ward —

Rehgious Faith . . .124

See State Board of Charity.

AGENT — Of Insurance Company —
Commission on Policy on Life
of — Rebate ....
See Insurance. 3.

ALCOHOL — In Proprietary or Patent
Medicine or Food Preparation
Receptacle — Label — State-
ment of Contents . • .• 216
Where a proprietary or patent medicine or
food preparation containing alcohol is put up
in a glass bottle enclosed in a pasteboard

ALCOHOL — Continued.

WTajjpcr, the pro\asions of St. 1906, c. 380,
§ 1, as amended by St. 1907, c. 259. { I.
requiring that "upon evcr>- package, bottle
or other receptacle holding any propric(ar>- or
patent medicine or any proprictar>- or patent
food preparation which contains alcohol . . .
shall he marked or inscribed a statement on the
label of tlie quantity or proportion of each of
said sulistances contained therein," are com-
plied with if a proper statement is inscril>o<i
upon the pasteboard wrapper, so long lus .-tich
bottle is contained therein. If, however, the
glass bottle is removed from such wrai)i>erand
separately sold or offered for sale, the statutes
above cited would require a statement of the
quantity or proportion of alcohol ct>ntaine<l
in such bottle to be inscribed upon the bottle
itself.

ALLOWANCES FOR TRAVEL — Em-
ployees of Cuuiuioiiwciilth . 292
See Fees.

ALTERATION — Of Location of Suto

Highway . . . .113

See St.^te Highway. 2.

AMENDMENT — To Constitution of the

United States — Income Tax . 267
See Constitutional Law. 5.

To Constitution of Commonwealth 370

(See Constitutio.val Law. 11.

To Constitution — Taxation of Wild

or Forest Lands . .531

iSee CoNSTrriTio.vAL Law. 24.

ANIMALS — Slaughfer or KillinK —
Healthy Condition — Meat fnmi
Carca-s.-^cs of Cattle infcctoil with
Tuberculosis — Sale • 20s

St. 1908, c. 329, providiiiK in !«ection 1 that

"the sale, offer or exposure for sale, or dcUvco'

for use as food, of the rarraas ... of any

animal which has come to i* ■ ' '■ "• ■"'^'

manner or by any moan.s i

slaughter or killing while in a

. . . shall Ix? punished by :

than two hundred dollars or

for not more than six ni' :

permit meat derived from tin- ■

cattle infected to any degree witli

or any other disea.se to l>c sold as !• "i .■..>...;<

this Commonwealth.

606

INDEX-DIGEST.

ANTI-TRUST ACT — Acquisition of
Stock and Bonds and Other Evi-
dences of Indebtedness of the
Boston & Maine Raib-oad by the
Boston Railroad Holding Com-
pany — Restraint of Trade . 233
See Boston Railroad Holding
Company. 1.

APPROPRIATION — Public Purpose —
Liability of Commonwealth for
Act of Insane Person . . 151

See Constitutional Law. 1.

Public Purpose — Society, School

or Institution under Sectarian

Control 153

See Constitutional Law. 2.

Public Purpose — Money not di-
rectly raised by Taxation . . 160
See Constitutional Law. 3.

Public Purpose — Museum of Fine
Arts .....

See Constitutional Law. 13.

380

For Repayment of Money paid under

Mistake of Fact or Law — Moral
Obligation .... 503

See Constitutional Law. 21.

For Homes for Mechanics, Laborers

or Other Wage Earners — Public
Purpose . . . . .521

ASee Constitutional Law. 22.

Of Public Funds for Reclamation and

Sale of Wet Lands — Public
Purpose ..... 538
iSee Constitutional Law. 25.

APPROPRIATIONS — Annual — State-
ment of Amounts required for
Ensuing Fiscal Year — Verifica-
tion of Estimates — Examination
and Audit of Books of Account . 346
See Governor and Council. 2.

For State Commissions, Departments

or Institutions — Employment
of Persons to investigate State-
ments and Estimates — Contract
— Compensation . . . 441

See Governor. 6.

APPROVAL — Of Appointment and
Compensation of Officers of State
Institution .... 313
See Westborough State Hos-
pital. •

Of Bonds of Street Railway Company

— 'By Board of Railroad Com-
missioners — Sale at Less than
Par Value .... 329

See Street Railways. 1.

ARMORIES — Use for Rallies of Politi-
cal Parties and Meetings for the
Discussion of Public Questions . 344
See Militia. 1.

Construction of

See Militia. 2.

ARMORY COMMISSION

tion of Armories
See Militia. 2.

. 358

Construc-

358

ARREST — For Violation of Rules and
Regulations of Metropolitan
Park Commission . . .96

See Metropolitan Park Com-
mission. 2.

ASSESSMENT — Annual, for Taxation
— Omitted Property — Removal
of Taxpayer from the Common-
wealth 266

See Taxation. 7.

ASSESSMENT INSURANCE.

See Insurance.

ASSESSORS — Term of Office
See Towns. 1.

337

ASSISTANT COMMISSIONER OF
THE PENAL INSTITUTIONS
DEPARTMENT OF THE
CITY OF BOSTON . 324

See Civil Service. 7.

ATTORNEY-GENERAL — Legislative
Committee 7— Preparation and
Draft of Proposed Legislation 111
It is not within the scope of the duties of the
Attorney-General to draft proposed legislation,
or to advise a committee of the Legislature
except upon bills actually pending before it;
but if so requested he may, in his discretion
and as matter of courtesy, submit a draft of
a bill for the consideration and assistance of
such committee.

2. Duties — Senate — Authority to

require Opinion within Fixed

Time 424

The Senate has no authority to fix a limit of

time within which the Attorney-General is to

perform his duties or any of them.

3. Opinion — Statement of Facts —

Monopolies — Public Policy —
Legislature .... 425

The Attorney-General is not required to
express an opinion upon any case or to take
any other action relative thereto upon the
request of a State officer, board or commission
unless sufficient facts are stated to enable him
to come to a definite conclusion in the premises.

The determination of the attitude of the
Commonwealth toward monopolies is primarily

INDEX-DIGEST.

607

ATTORNEY- GENERAL — Continued.
a function of the Legislature, and does not fall
within the scope of the duties of the Attorney-
General.

4. Order fixing Limit of Time for

Performance of Duty to advise
General Court .... 471
The General Court has no authority to fix a
limit of time within which the Attorney-
General shall discharge his statutory duty of
advising the General Court or either branch
of it.

5. Public Charitable Trust — Trust

Fund — Mandamus . . 588 I

Lender the provisions of R. L., c. 7, § 6, 1
which makes it the duty of the Attorney-
General to enforce the due application of funds
given or appropriated to public charities
within the Commonwealth, and to prevent
breaches of trust in the administration thereof,
the Attorney-General will not sanction, by the
use of his name upon a petition for a writ of
mandamus, the expenditure of trust funds for
the purpose of deciding a purely technical
question, when in his opinion no public ad-
vantage will be served thereby.

6. Quo Warranto — Local Question —

Statute — General and Particular

— City Charter of Marlborough

— Superintendent of Streets —
Appointment .... o93

R. L., c. 26, § 36, which provides that "no
member of the city council shall, diu-ing the
term for which he was chosen, either by ap-
pointment or by election of the city council
or of either branch thereof, be eligible to any
office the salary of which is payable by the
city," is superseded with respect to the city
of Marlborough by St. 1S90, c. 320, § 17, the
charter of such city, providing that " no person
shall be eligible by appointment or election
... to any office of emolument the salary of
which is payable out of the city treasury, who
at the time of such election or appointment is
a member of the city council;" and an alder-
man of such city elected for the year beginning
in January, 1908, who has taken the oath of
office and participated in the business trans-
acted by the board of aldermen, and upon the
sixth day of January has resigned therefrom,
may legally be appointed superintendent ol
streets by the mayor.

An information in the nature of quo war-
ranto will be signed by the Attorney-General
only when the construction of a law whicM
affects the public generally is involved, or
where the Commonwealth is interested in the
determination of the question raised; and he
Mdll not sign such an information for the pur-
pose of determining a question purely local
in its application.

Authority to bring Proceedings for

the Benefit of Private Individ-

uals . . V • 9fi ■

See Constitutional Law. JO.

AUTOMOBILES — Cities and Towm —
Sp('ci;il Regulations — Statutory
Construction . . . .20

A regulation adopted by the selectmen of a
town, fixing the speed limit for automobiles
and niotor cycles throughout .such town "in
fire district, eight miles per hour; o^i'-^vV.
fifteen mUes per hour," is a >;
within the meaning of St. 1 ■
statute in force at the time . .

although the limit so fixed coini-idcs «iiii iho
extreme limit established by such statute, mid
is unaffected by the enactment of St. 1906,
c. 412, § 1, which established a rate of twelve
mUes in the thickly settled or bu-iiinc^ part
of a city or town, and a rate of 'wenty mile«
outside thereof, as the extreme limit of speed.

2. Cities and Towns — Special Regu-
lations — Posting — Sign Boards
— Massachusetts Highway Com-
mission . . _ . 78
Under the provisions of St. 1903, c. 473, J 8,
as amended by St. 1905, cc. 31 1 and 366, and by
St. 1906, c. 412, which enacted that local au-
thorities "may make special regulations as to
the speed of automobiles and niotor cycli^ and
as to the use of such vehicles on r^i^i'"^'''^'"
roads or ways, including their c<ii
elusion therefrom ..." a rcgulati
by the selectmen of a town restricting , :
of automobiles and motor cycles upon ilie
streets of the thickly settled portion of «uch
town to nine miles per hour i- '" ' -
tion; and, in the absence of ;
provided, it becomes the (lut\-
setts Highway Commission to pool suclj rc;;u-
lation conspicuously on sign boards at such
points as the commission may deem neces-
sary.

3. Registration by Dealer — Expira-
tion of Registration -119
The provision of St. 1903. c. 473, SI.**
amended by St. 1907. c. 5M). § 1. that llie
registration of ever>- automobile or motor cycle
shall expire upon the first day of I - ' "'
each year," is applicable not only
biles or motor vehicles which air
single individuals, but .also to ."iniihir v.i.M..^
when owned or controlled by dealers.

Loss by Collision — Insurance . 39

See Insurance. 2.

License to operate — RevocaUon —

Conviction • . o.u

See License. 5.

BACK BAY FENS — Erection <. I. -'"""1 ^^

HdUsc on 't _■ 1ft '

:icc CO.NSTITUTIONAL LAW. lO.

BALLOT BOXES — ExaininaUon of. by
Ballot Law Cominis-sion — Dele-
gation of Legisl.uive Authority —
Constitutional Law .
See Elections.

507

608

INDEX-DIGEST.

BALLOT LAW COMMISSION — Ex-
amination of Voting Machines,
Ballot Boxes and Counting Ap-
paratus — Delegation of Legisla-
tive Authority — Constitutional
Law ..... 507

See Elections.

"BANK" OR "BANKING" — In Name

or Title of Corporation . . 250

See Corporation. 3.

BENEVOLENT CORPORATION — Au-
thority to increase Holding of
Real or Personal Property . 31

See Charitable Corpora-
tion. 2.

BILLS AND RESOLVES — Action of

Governor — Five Days — Sun-
days — Holidays . . . 414
See Governor. 5.

Veto — Return by Executive —

Limit of Time . . . .552

See Governor. 7.

BOARD OF RAILROAD COMMIS-
SIONERS — Procedure —
Questions of Law or Fact —
Rulings . . . . .511

The pro\asion of St. 1906, c. 463, Part III.,
§ 157, that the Supreme Judicial Court or the
Superior Court shall have jurisdiction in equity
" to review, annul, modify or amend the rulings
of any State board or commission relative to
street railways ..." does not require the
Board of Railroad Commissioners to make
formal rulings upon questions of law or issues
of fact with respect to which the performance
of their duties does not call upon them to
make a decision.

If, however, the determination of a question
of law is involved in the decision of the Board
upon any matter of administration properly
before them, they may express such determina-
tion in the form of a ruling.

Approval of Bonds of Street Railway

Company — Sale at Less than
Par Value . . . .329

See Street Railways. 1.

Certification of Bonds of Street

Railway Company as Legal In-
vestment for Savings Banks —
Returns — Returns including
Nine Months eiiding June 30,

1910 338

See Savings Banks. 5.

BOARD OF REGISTRATION IN
PHARMACY.

See Registered Pharmacist.

BOARDS OF HEALTH — Causes of
Sickness — Contagious Diseases
— Right to enter Schools — In-
spectors of Health . . . 196

BOARDS OF HEALTH — Continued.

A local board of health may, under its gen-
eral authority conferred by R. L., c. 75, if in
fact a contagious disease as a cause of sickness
is found in a school, or if such board has reason-
able and proper grounds for believing that a
contagious disease may be found therein, enter
such school and make all necessary examina-
tions in the premises, and, if pupUs suffering
from contagious diseases dangerous to the
public health are found, may remove such
pupils to a hospital or quarantine station, but,
in the absence of any reasonable grounds for
believing that contagious disease existed in a
school, such board or its agents would have no
authority to enter therein for the purpose of
making an examination of the physical condi-
tion of the pupils in attendance.

State inspectors of health, acting under their
general powers as defined in St. 1907, c. 537,
I 3, providing that such an inspector "shall
gather all information possible concerning the
prevalence of tuberculosis and other diseases
dangerous to the public health within his dis-
trict," would not be authorized to enter a
school or hospital for the purpose of making
a physical examination of individual pupils or
patients.

Contagious Diseases — Quarantine

— Expense .... 137
See Pauper. 4.

BOATING — Regulation of Public Use of

Sources of Water Supply — Arti-
ficial Reservoirs . . . 364
See State Board of Health. 5.

BOILER INSPECTION DEPART-
MENT — Qf Massachusetts Dis-
trict Police — Chief Inspector . 492
^ee Massachusetts District
Police.

BOND — Official — Surety — Married

Woman — Wife of Principal . 260
Under the provisions of R. L., c. 153, § 2,
that "a married woman may make contracts,
oral and written, sealed and unsealed, in the
same manner as if she were sole, except that
she shall not be authorized hereby to make
contracts with her husband," a married woman
may, as surety, sign the official bond of her
husband.

BONDS — Of Corporation — Value in
Excess of Value of Mortgaged
Real Estate . . . .24

See Taxation. 1.

Of a Railroad Corporation having

no Completed Roadbed — Sav-
ings Banks — Legal Investments 43
See Savings Banks. 1.

Of Domestic Street Railway Com-
pany — Acquisition of, by For-
eign Railroad Corporation . 53
See Foreign Corporation. 1.

INDEX-DIGEST.

009

BONDS — Continued.

Registered, of Commonwealth —

Signature of Governor — Rubber
Stamp . . . . .65

See Governor. 2.

Of Commonwealth — Transfer to

Executor or Administrator . 104
See Treasurer and Receiver-
General.

Of the New York, New Haven &

Hartford Railroad Company —
Authorized Investments for Sav-
ings Banks .... 183
See Savings Banks. 2.

Of Boston & Maine Railroad — Ac-
quisition by Boston Railroad
Holding Company — Restraint
of Trade . . . .233
See Boston Railroad Holding
Company. 1.

Of Boston Railroad Holding Com-

panv — Exemption from Local
Taxation . . . .280

(See Boston Railroad Holding
Company. 2.

Of Street Railway Company — Ap-
proval by Board of Railroad
Commissioners — Sale at Less
than Par .... 329
See Street Railways. 1.

Of Street Railway Company —

Certification as Legal Invest-
ment for Savings Banks by
Board of Railroad Commis-
sioners ..... 338
See Savings Banks. 5.

Of Domestic Electric Light Corpo-
ration secured by Mortgage on
Real Estate Taxation — Exemp-
tion 431

See Tax.\tion. 10.

Of Terminal Corporation — Legal

Investment for Savings Banks . 462
iSee Savings Banks. 6.

BOSTON, CITY OF — Certification

of Pay Roll of Police • .164

.See Civil Service Commission.

Building Regulations . • • 2G5

»See Boston State Hospital.

City Charter — Heads of Depart-
ments — Sealers of Weights and
Measures . • . ■ 296
See Civil Service. 6.

Assistant Commissioner of the Penal

Institutions Department . . 324

>See Civil Service. 7.

BOSTON, CITY 0¥ — Cnufinu.d.

Letters and Memoranda ri'ccived in

the Investigation of .Appointees

to Office — Public Records . 351

iSee Public Records. ;i.

Civil Service — Veterinary Inspector

— Veterinarj- Medical In.spector

— Veterinarian . . . 368
See CrviL Service. 9.

Appropriation for Museum of Fine

Arts 3M)

See Constitutio.nal Law. l.S.

BOSTON & MAINE RAILROAD —

Extension of Line — Cuii^oiida-
tion with other Con>orations —
Liability to Forfeiture of Charter 199
The ownership and control of the Portsmouth
Street Railway and the purchase of the Eastern
Railroad Company, both corporations of the
State of New Hampshire, by the Boston &
Maine RaUroad, were duly authorized by the
Legislature of this Commonwealth, and Buch
acquisition and control do not render the
charter of the Boston & Maine Railroad liable
to forfeiture under the provision of .St. 1906,
c. 463, part II., § 47, that "if a railroad cor-
poration owning a railroad in this conmion-
wealth and consolidated with a corporation
owning a railroad in another state . . .
without authority of the general court, . . .
extends its line of railroad, or consolidates with
any other corporation, . . . the charter and
franchise of such corporation shall be subject
to forfeiture."

The acquisition and control of the Concord
Street Railway and the extension of its line
from Concord to Manchester, by the Concord
& Montreal Railroad Company, was an
acquisition and extension of a New Hampshire
corporation of its own line, under projHT au-
thority from the State of New Hanipf'hire, and
such acquisition and extension do not render
hable to forfeiture under the provi.sion of law
above cited the charter of the Boston «S: Maine
Railroad, which operates the Concord &
Montreal Railroad under a lease authoriicd
by the Legislature of this Commonwealth.

Acquisition of Stock, Bonds and

Other Evidences of Indcbtednesa

— Restraint of Trade . 233
See Boston Railroad Holding
Company. I .

BOSTON ELEVATED RAILWAY
COMPANY — (•..ii.-titiiti..ii:il
Law— Hate.-i — Str.ct .md Ele-
vated Railway Con>oration» —
Impairment of Obliiiation of
Contract — Discrimmation —
Equal Protection of Law . . 300

A propose*! bill, providing th.-u •..i, rill -treel
and elevated railways in thi." ''|n

the fares which are now five "<*

reduced to three cents between t,., ,, ,.i... ol

610

INDEX-DIGEST.

BOSTON ELEVATED RAILWAY

COMPANY — Continued.
sis and eighty in the morning and five and seven
in the evening," would, in the case of the
Boston Elevated Railway Companj', be un-
constitutional and void because it would
impair the obligation of the contract estab-
lished by the charter of that corporation
(St. 1907, 0. 500, § 10) authorizing such cor-
poration to establish and take a toll or fare
not exceeding five cents, which sum should not
be reduced by the Legislature during a period
of twenty-five years after the passage of such
statute. Such proposed bill would not be
unconstitutional as to other street or elevated
railway corporations as constituting so unjust
a discrimination in favor of the Boston Ele-
vated Railway Company and against such
other companies as to deny the latter the equal
protection of the laws.

2. Constitutional Law — Contract —

Free Transfers 400

St. 1897, c. 500, § 10, which provides that the
Boston Elevated Railway Company may "es-
tablish, and take a toll or fare, which shall not
exceed the sum of five cents for a single con-
tinuous passage in the same general direction
upon the roads owned, leased or operated by
it," which "sum shall not be reduced by the
legislature during the period of twenty-five
years, from and after the passage of this act,"
with the further provision that the Board of
Railroad Commissioners may, upon petition
and after notice and a hearing, reduce such
toll or fare, but that such toll or fare shall not,
without the consent of the corporation, be
so reduced as to yield less than a certain fixed
income, and which further provides that "said
corporation shall also provide free transfer
from elevated to surface and from surface to
elevated cars at all stations of the elevated
lines reached by surface lines and from one
elevated car or train to another at junction
points entitling a passenger to a continuous
ride in the same general direction," and such
further free transfers on all the surface lines
as may be required by the Board of Railroad
Commissioners, created a contract between
the Commonwealth and the Boston Elevated
Railroad Company; and a proposed amend-
ment to the section above quoted, providing
in part that such corporation "may establish
for its sole benefit a toll or fare which shall
not exceed the sum of five cents for a single
continuous passage between the terminals and
transfer points of said roads, and transfer
checks shall be issued or transfers made on
demand without additional payment, which
shall entitle the passenger to a continuous ride
frorn any station or transfer point to any other
station or transfer point on the system,"
such transfers to be issued from and between
midnight and 6 o'clock in the morning, on
cars leaving certain specified stations, so as to
render to passengers the same amount of serv-
ice during the hours from midnight to 6 o'clock
in the morning for the same fare as thej' receive

BOSTON ELEVATED RAILWAY

COMPANY — Continued.
during the other hours of the day, is uncon-
stitutional and void, for the reason that it
changes the requirements as to transfers es-
tablished by such contract.

BOSTON RAILROAD HOLDING
COMPANY — Acquisition of
Stock, Bonds, and Other Evi-
dences of Indebtedness of the
Boston & Maine Railroad —
Restraint of Trade — Anti-Trust

Act 233

The proposed bill (now St. 1909, c. 519)
incorporating the Boston Railroad Holding
Company, which authorized such company
to acquire the stock, bonds and other evidences
of indebtedness of the Boston & Maine Rail-
road, and permitted any railroad corporation
existing under the laws of the Commonwealth
at the date of the passage of such bill to guaran-
tee the principal of and the dividends and in-
terest upon the capital stock, bonds, notes and
other evidences of indebtedness of the Boston
Railroad Holding Company, and to ac-
quire and hold such stock, bonds, notes and
other e\'idences of indebtedness, is not in
conflict with the pro\nsions of the so-called
Anti-Trust Act, the Federal Statute of July 2,
1890 (26 Stat. 209), which provides in section 1
that "every contract, combination in the form
of trust or otherwise, or conspiracy in restraint
of trade or commerce among the several states,
or with foreign nations, is hereby declared
illegal."

2. Taxation — Excise — Bonds —

Exemption from Local Taxation 280
_ A bill which establishes a special and dis-
tinct method for the taxation of the Boston
Railroad Holding Company, incorporated
under the provisions of St. 1909, c. 519, for the
sole purpose of acquiring and holding the
capital stock, bonds and other evidences of
indebtedness of the Boston & Maine Railroad,
and of voting upon the stock and collecting
and receiving dividends and interest upon the
stock, bonds and other evidences so acquired
and held, by imposing an excise tax upon such
corporation and exempting its bonds from
local taxation, is objectionable upon consti-
tutional grounds; first, because the franchise
to acquire and hold stock, bonds and other
securities, exercised by such corporation, is
not to be distinguished from the franchises of
other corporations which have been or may be
organized for similar purposes, and the impo-
sition of such excise upon a single corporation,
therefore, would not be reasonable, within the
meaning of article IV., section I., chapter L,
part the second of the Constitution of Massa-
chusetts, which authorizes the Legislature to
impose and levy reasonable duties and excises;
and second, because there is no valid distinc-
tion between the bonds of such corporation
and the bonds of any other business corpora-
tion which may hold securities of Hke character,

INDEX-DIGEST.

r.ii

BOSTON RAILROAD HOLDING

COMPANY — Continued.
and the exemptiou from taxation of such bonds
would have an efTect to render the general tax
on property throughout the Commonwealth
unequal and disproportionate, and so be ob-
noxious to the Constitution; and the creation
of such exemption, therefore, would exceed the
constitutional authority of the Legislature "to
impose and levy proportional and reasonable
assessments, rates, and taxes, upon all the
inhabitants of, and persons resident, and
estates b^ng, within the said Commonwealth,"
as defined in the Constitution of Massachu-
setts, part the second, chapter I., section I.,
article IV.

BOSTON STATE HOSPITAL — Build-
ing Regulations — City of Boston 265
The Boston State Hospital, of which the
custody, control and management are vested,
under the pro^'isions of St. 1909, c. 504,
§§ 14-23, in the State Board of Insanity and
the trustees of said institution, is not subject
to the inspection and regulation of the officials
of the city of Boston with relation to gas, elec-
tric lighting and plumbing therein.

BREACH OF THE PEACE — Right

of Sheriff to require Assistance . 488
See Sheriff.

Duty of County, City or Town Au-
thorities in Case of Riot . .515
See Riot.

BUSINESS — Of Unincorporated Asso-
ciation — Way or Manner of
transacting .... 372
See Co-operative Bank.

BUSINESS CORPORATION — Fran-
chise Tax — Assessment — De-
ductions . . . • 249
See Taxation. 6.

BUILDING — Storage — Iron Tank for

keeping Gasolene . • .5^

See Explosives.

Hotel — Intoxicating Liquors —

Certificate of Inspector of Fac-
tories and PubUc Buildmgs —
Lodging House Ten or More
Rooms above the Second Story . 6iy
See License. 1.

BUILDING REGULATIONS — Of

City of Boston . ■ • -^"^^

See Boston State Hospital.

BUILDINGS — Inspection of — Sanita-
tion and Ventilation — Inspec-
tion Department of District
Police • ■ ■ i-J'^

Under the provisions of St. 1907, c. 537 § 5
and St. 1908, c. 369, the inspection department
of the Massachusetts District Pohce has no

BUILDINGS — Contifui-;/!.

juri.'silicti<ju over iiiuticrs of sanitatiun or

ventilation in ljuildiiii'~ - j: i.-.t i,. ii,.i„ f^.t).
other than to order c!i r

ventilating or sanit;.: .■•

necessity therefor is rciiort'-i im -u-h d'i.ri-
ment by the State Board of Health.

2. Inspection of — Inspector of Fac-
tories and P'lbli'- TViildinjcs —
Plans — E ■ ■ • .t — Ac-
comniodatiu: ir More

Employees a i - i St/jry . J.'Jl

The word "estahlishnieui," a.-, use<l in R. L.,
c. 104, § 22, which in part provides that "no
building more than two stories in ' ■ ■'• • - ■ '"h
is designed to be used above the-
in whole or in part, as a factory. -r

mercantile or other establishincal aul has
accommodations for ten or more employt-cs
above said story, . . . shall Ije erected until
a copy of the plans thereof has been deposited
with the inspector of factories nnd public Imild-
ings for the district in whir! 1 ! ' ' * -d

. . .", refers to a single bi i».

and does not include a nun 11 '•'o

the second story which are iudcpcudcutiy oc-
cupied, and in none of which are ten or more
persons employed.

Expense of destro.\-ing Gypsy and

Brown-tai) Moths and Nests —
Value of Land includes BuildinR^ .'M
.See Gypsy and Brown-tail
Moths. 1.

CANDIDATE — Death on Morning of

Election Day — Special Election 4.'i7
Sec Election Laws. 1.

CATTLE — Infected with Tuberculosis

— Sale of Meat from Carcasses of 208
See Animals.

CERTIFICATE — Registered Pharma-

pigt — Sale of IntoxicatinK Li<|Uor 50
See Registered Pharmacist. 2.

Of AbiUtv to read and write — Em- ^^

ployment of Children . • 1 "

See Labor. 4.

Of Physician — Insane Person —

Temporary Care and Treatment .^9
See Insane Person, .i.

Of Entry of Intention of MarriaK« . 407

See Notice.

Of Registration as Hunter — Sur-
render on Conviction of Vjolation ^

of Game Laws '*•

See Game Laws.

Of Inspection of Steam Boiler by In-

surance Company — Issue • »>'«

See l.NSCRANCE. 9.

612

INDEX-DIGEST.

CERTIFICATION — Of Bonds of Street
Railway Company as a Legal In-
vestment for Sa^■ings Banks —
Returns to Board of Railroad
Commissioners . . . 338

See Savings Banks. 5.

CHARITABLE CORPORATION —

Special Charter — Increase in
Holdings of Real and Personal
Property . . . .12

A corporation chartered tinder a special act,
for the ptirpose of pro-s-iding for the support of
aged, destitute women not otherwise pro^-ided
for, may increase its holdings of real and per-
sonal property under the general pro^'ision of
R. L., c. 125, § 8, authorizing any corporation
organized under general or special laws for
educational, charitable, benevolent or religious
purposes to hold real or personal estate to an
amotmt not exceeding §1,500,000, pro\-ided
that the charter of such corporation contains
no provision inconsistent therewith.

2. Authority to increase Holdings of

Real or Personal Property . 31

Corporations specially chartered for chari-
table or benevolent purposes may, without
express legislative authority, increase the
amovmt of real or personal property held by
them, in accordance with the pro\"isions of
R. L., c. 125, § 8, that any such corporation
may hold real and personal estate to an amount
not exceeding §1,500,000.

Qucere, as to the effect of R. L., c. 125, § 12,
pro%-iding that any such corporation formed
before July 27, 1874, upon compUance with the
requirements of such section, may accept the
preceding sections of such chapter, and there-
upon "shall have the powers and p^i^-ileges
and shall be subject to the duties and liabilities
of corporations formed under said sections."

The Soldiers' Home in Chelsea —

Purposes of Incorporation . 217

See The Soldiers' Home ix j

Chelsea.

Institution incorporated for Care of

Insane — Exemption from Tax-
ation of Land .... 384
See CoxsTiTUTiONAL Law. 15.

CHARLES RIVER — Rules for the Use

of 14

See Metkopolitan Paek Com-
Anssiox. 1.

CHARLES RIVER BASIN — Widening
and Deepening of Lechmere

Canal 429

See Metropolitax Park Com-
mission. 4.

CHILDREN — Emploj-ment — Factorj'
or Workshop — Certificate of
Ability to read and write . . 177

iSee Labor. 4.

CHINESE RESTAURANTS — Dis-
crimination .... 276
See CoNSTiTiTTioxAL Law. 7.

CITIES AND TOWNS — Debts — Re-
funding or Renewal . .71
Under the pro^•ision3 of R. L., c. 27, § IS,
that cities and towns may renew or refund any
debts in securities payable within the period
fixed by section 11 of such chapter, a note
issued by a town to renew or refund a debt
incurred for schoolhouse construction, and
payable within the required period of twenty
years from the date of the original issue, is a
valid obligation of such town.

2. Harvest and Sale of Ice — Taxa-
tion 109

A proposed bill, entitled "An Act to au-
thorize the city of Holyoke to harvest and sell
ice at wholes^e," which in part provides for
the raising of money by taxation to directly
defray the cost of the carr>"ing on by such city
of the business of harv^esting and seUing ice,
or for the repajTnent of loans made for such
purpose, is unconstitutional, as authorizing
the raising of money by taxation for a purpose
not public in its natture.

3. Money borrowed in Anticipation

of Taxes — Limit of Authority

to issue Notes in Payment . 327

Under the pro%dsions of R. L., c. 27, § 6,
authorizing a citj- or town, by a majority vote,
to "incur debts for temporary loans in
anticipation of the taxes of the municipal
year in which such debts are incurred and
expressly made payable therefrom by such
vote," a town may not legally issue notes for
debts incurred in anticipation of taxes in any
one year when such debts exceed in the aggre-
gate the total amount which the town has by
vote authorized to be so borrowed

A town may not, under the provisions of
R. L., c. 27, § 6, authorize an amount to be
borrowed in anticipation of taxes which ex-
ceeds the amount of the tax assessed or to be
assessed for the year within which the debt is
contracted.

4. Tuberculosis Hospital — Mainte-
nance of Ward or Beds in Private
Hospital or General City or
Town Hospital — Subsidy from
Commonwealth . . . 459

The maintenance by a city or town of a
tuberculosis ward or bed or beds in a private
tuberculosis hospital or in a general city or
town hospital does not fulfil the requirements
of St. 1911, c. 597, § 1, which pro\ade3 that
"every city or town which establishes and
maintains a tuberculosis hospital shall be
entitled to receive from the commonwealth a
subsidy of five dollars per week for each patient
who is unable to pay for his support, or whose
kindred bound by law to maintain him are
unable to pay for the same."

INDEX-DIGEST.

G13

CITIES AND TOWTHS — Continued.

Licenses for Fish Trap .

See Tide Water.

Automobiles — Special Regulations 26
See Automobiles. 1.

■ Gypsy and Brown-tail Moths —
Desti^ction of Xests — Expense

— Assessed Value of Lands —
Buildings . . .34
See Gypsy axd Bro-r-x-tail
Moths. 1.

- Sealers of Weights and Measures —

Inspection of Mechanical De-
■vices . . . . .51

iSee Weights and Measures.

- Liability for Support of Inmates

in Massachusetts Hospital for
Feeble-minded — Notice . . 57

See Massachusetts Hospital
FOR Feeble-minded.

- Automobiles — Special Regulations

— Sign Boards — Posting . 78
Se^ Automobiles. 2.

- Contagious Diseases — Powers of

Stat« Board of Health . . 81

See State Board of Health. 1 .

Branch Office of Trust Company
See Trust Company. 2.

131

Contagious Diseases — Temporarj'
Aid to Unsettled Paupers —
Quarantine — Expense . . 137

See Pauper. 4.

■ State Pauper — Aid rendered in
Place of Settlement of Wife —
Reimbursement by Common-
wealth — Notice . . .145
See Pauper. 5.

-Water Works — Opening in State

Highway for Ser-^-ice Pipes . 242

See State Highway. 4.

- Independent Industrial Schools -;-

Initiation — Additional to PubUc
School System . - • 261

See Schools. 3.

- Independent Industrial Schools —

Maintenance Fund — Money re-
ceived from Fees for Licenses to
sell Intoxicating Liquors . • 31o

See Schools. 4.

- Water Supplv — Control and Ref-

lation of Great Ponds — Pubhc

Rights . • Vr • fi

See St.\te Board of Health, b.

CITIES AND TOWNS — '

Officers — Duty in (a ,r

Other Disturbance oi tli.- I'ul.iic

Peace 515

See Riot.

Acceptance of Statute relating to

Hours of Labor . 567

See Labor. 8.

CITIZEN — Voters — Formation of

Credit Union . . . .411

Under the pro\-ision of Si. Vmii ,■ .jm 5 ;<.
that "seven or more ci'

wealth who have assoi . ■\

agreement in writing for i :i. .;

a credit union, may . . . '.
tion . . .," the persons sii::.
ment need not be voters.

Preference of, in Application to Mas-
sachusetts State Sanatorium . 90
See Massachusetts .State Sana-
torium.

Registration of Hunters — Residence

on Land used exclxisively for
Agricultural Purposes . . 206

See Hunters.

Right of Sheriff to require .Assistance

of, in Case of .\ctual or Impend-
ing Riot, Tumult or Other
Breach of the Pea'" . 4S8

See Sheriff.

CITY BOOKKEEPER — Civil Scr\-ice

Excmi)tii<ii .... 190
^tf Civil -Service. 4.

CIVIL ENGINEER — Hours of Labor 420

.S((' Labor. 7.

CIVIL SERVICE — Vendor of Intoxi-
cating Liquors — Agents . . 105
The words "vendor of intoxi'-atine liquors,
as used in R. L., c. 19. § IG. r ' vil
service, which provides 1: •"
vendor of intoxicating lis "
pointed to or retained in :;
ment or employment to w: '*
of this chapter apply." ar. •'•
who either as principal or bl-
eating liquor, and would i;. "»
drive about among the ■ ■''
employers and deliver into\ »
collect money from such ( u "»
make sales upon their route.-, lu-. well iu, i>cr-
sons who are employed jis bartender*.

2 Exemption — Clerk in the Office

of State Forester — Governor
and CouncU — -Approval of tm-
plo\'ment • • , . , " \ '

Under St."l904, c. -I"" ^« «),„■•, .nt!...nio«
the State Forester to : '".

mav need in the ijerf.i ''

to fix their salaries, - ^nhy-^ t.. 11. •■ :ii....'.>.u

614

INDEX-DIGEST.

CIVIL SERVICE — Continued.
of the Governor and Council," such approval
is not equivalent to confirmation by the Execu-
tive Council within the meaning of R. L., c. 19,
§ 9, which exempts from the operation of the
civil service law and rules "officers . . .
whose appointment is subject to confirmation
by the Executive Council."

3. Exemption — Officer — Clerk of

Chief of Police . . .158

The clerk of the chief of police of the city of
Worcester, who is appointed by such chief of
police, sulDJect to confirmation by the city
council, and whose duties are such clerical
duties as may be prescribed by such chief of
police, is not an "officer" within the meaning
of R. L., c. 19, § 9, which excepts from the
operation of the civil service law and rules
"and officers . . . whose appointment is sub-
ject to confirmation by the . . . city council
of any city," and the appointment of such
clerk must be made in accordance with the
requirements of such law and rules.

4. — — Exemption — Heads of Principal
Departments of a City — City
Bookkeeper .... 190
The office of city bookkeeper, established by
the charter of the city of North Adams (St.
1895, c. 148), does not constitute the incum-
bent the head of any principal department
in the governmental organization of such city,
and, in the absence of other grounds for exemp-
tion, is within the operation of civil service
rule VII., class 4, which includes "book-
keepers and persons doing similar work in the
service of the Commonwealth and of any city
thereof."

5. State Boards, Departments or

Commissions — Authority to re-
quire Special Qualifications in
Applicants for Appointment or
Employment .... 270
No State board, department or commission
is authorized to require of applicants for ap-
pointment or employment qualifications other
than those required by the civil service law
and rules, and the Civil Service Commission
in its discretion may or may not accede to a
requisition calling for special qualifications.

6. Statutes — General and Particular

— Repeal — Heads of Depart-
ments — Sealers of Weights and
Measures — City Charter of City
of Boston .... 296

St. 1909, c. 486, which established a new
charter for the city of Boston, providing, in
section 9, that heads of all departments of
such city shall be recognized experts in such
work as may devolve upon the incumbents of
such offices, or persons specially fitted by
education, training or experience to perform
the same, and shall be appointed without
regard to party affiliation; and, in section 10,
that in making such appointments the mayor

CIVIL SERVICE — Continued.
shall sign a certificate of appointment and file
the same with the city clerk, who shall there-
upon forward a certified copy to the Civil
Service Commission, who shall make a careful
inquiry into the qualifications of the nominee
under such rules as thej^ may establish, with
the consent of the Governor and Council, and,
if they find such qualifications sufficient to
meet the requirements of the law, such com-
mission shall file a certificate with the city
clerk stating that they have made the requisite
examination and that they approve the ap-
pointment; and, in section 62, that all acts
and parts of acts so far as inconsistent with
such act are repealed, — does not repeal the
provisions of St. 1909, c. 382, authorizing the
Civil Service Commissioners to prepare a rule,
to be approved by the Governor and Council,
for including within the classified service all
principal or assistant sealers of weights and
measures holding office by appointment under
any city or town of over ten thousand in-
habitants, "whether such officers are heads
of principal departments or not;" and the
latter statute is still applicable to sealers of
weights and measures in the city of Boston.

7. Assistant Commissioner of the

Penal Institutions Department
of the City of Boston . . 324

The assistant commissioner of the penal
institutions department of the city of Boston
appointed by the penal institutions commis-
sioner under the provisions of St. 1897, c. 395,
§ 5, is within the classification of "superin-
tendents, assistant and deputy superintend-
ents, deputies, executive officers and persons
other than the chief superintendent of de-
partments ..." in civil service rule 7, sec-
tion 1, clause 1, and is subject to the provisions
of the civil service law and rules.

8. Officers whose Appointment is

Subject to Confirmation by City
Council — Constables . . 325

Constables whose appointments must be
confirmed by the city council of the city of
Boston are "officers . . . whose appointment
is subject to confirmation by the . . . city
council" within the meaning of R. L., c. 19,
§ 9, providing that such officers, among others,
shall not be affected as to their selection or
appointment by the civil service rules.

9. City of Boston — Veterinary In-
spector, Veterinary Medical In-
spector and Veterinarian . . 368
The positions of "veterinary inspector,"
"veterinary medical inspector" and "vet-
erinarian" are within the classification estab-
lished by civil service rule 7, class 11, which
includes "inspectors other than inspectors of
work, and persons doing similar work, except-
ing railroad inspectors, in the service of the
Commonwealth or of any city thereof," and
are therefore subject to the civU service law
and rules.

INDEX-DIGEST.

<)15

CIVIL SERVICE — Contimicd.

10. Vendor of Intoxicatiufi Liquors —

Druggist — Sixth-class License .461
A druggist who holds a sixth-class license
to sell intoxicating liquors is a "vendor of
intoxicating liquors" within the meaning of
R. L., c. 19, § 16, providing that "no . . .
vendor of intoxicating liquors shall be ap-
pointed to or retained in any office, appoint-
ment or employment to which the provision
of thds chapter shall apply."

11. Inspectors of Slaughtering . . 575

Inspectors of slaughtering nominated and
appointed under the provisions of St. 1911,
c. 297, § 6, as amended by St. 1911, c. 534.
§ 2, are included within the terms of civil
service rule 7, c. 11.

Waiver of Benefits of Ci\-il Ser\4ce

Rules — Effect . .165

See METROPOLIT.A.N Park Com-
mission. 3.

CIVIL SERVICE COMMISSION —

Certification of Pay Rolls of the
City of Boston — Police Force . 164
Members of the police force of the city of
Boston are not persons "in the ser\ace or
employment of the city of Boston," withm the
meaning of St. 1908, c. 210, providing in
substance that the Civil Service Commission
shall certify all pay rolls, bills and accounts
for salary or compensation of persons in the
service or employment of such city.

Public Records — Letters and Mern-

oranda received in the Investi-
gation of Appointees to Office
in the City of Boston . . 351

See Public Records. 3.

CLERK OF CHIEF OF POLICE —

Officer 158

See Civil Service. 3.

CLERKS OF COURT — Fees for

Naturalization — County Ac-
counts . . • .-,..• ^?"
Clerks of courts having jurisdiction to
naturalize aliens as citizens of the United
States, under the act of Congress of June J\),
1906, are not entitled to retain for their own
use one-half of the uaturaUzation fees received
by them under such act, and all such lees
should be paid over to the treasurer of the
county for which such court is constituted.

2. Money paid into Court — In-

terest . . • • • .

A clerk of the courts may not appropriate
to his own use interest upon money whicn
under a rule of court or under a statute has
been paid into court for the benefit of the
prevafiing party in a suit brought to cleterraino
the right to the possession of such money, and
such interest is to be added to the principal
sum so deposited.

CLERKS OF COURT

Rcadjri.-tiiKMit wf

iTcused Pupulutii
See Salaries.

hi-

:i<X)

COAL SHOVELERS — (ii><'r:iti>ii .,i
Steam Boiler — Uaiiconscd Per-
son 524

See License. 3.

COMMERCE CLAUSE — Of Con.stitu-
tion of the United .States —
Regulation of .Siile of Goods.
Wares and Merchandise made
by Convict Lalxjr in Prison . 495
.See CoNSTiTUTiovAL Law. 20.

COMMISSION ON GRATUITIES —

Claim fur Gratuity — Fee of
Attorney — Payment . . 561

See Veteran.

COMMISSIONED

tuity

See Veteran.

OFFICER — Grii-

.->oi

COMMISSIONER OF CORPORA-
TIONS — May not apiirovo Ur-
ganization of Corporation to buy
and sell Re.al Estate . . 195

Sec Corporation. 2.

COMMONWEALTH — Employee— Vet-
eran— Retirement . . .119
A veteran of the ciN-il war employed by the
Metropolitan Park Commission as a police
officer is "in the service of the Common-
wealth" within the meaning of St. I'.HJT. c.
458, which provides in part that "a vcti-ran of
the civil war in the service of the Common-
wealth, if incapacitated for active duty, nhali
be retired from active service with the consent
of the governor."

2. Veteran — Retirement — Com-
pensation • , . •, ■ .J**
Under St. 1907. c. 458. § 1. which provide*
that "a veteran of the civil war m the s.rvic«
of the Commonwealth, if mr:ip:i''it(''..l for
active dutv, shall bd retired fr-; rv-
ice . . . at one-half the rate o! >on
paid to him when in active - *
veteran so retired is not enti ive
compensation based upon the i*n
value of benefits in the t ■ " .'•«-
penses, occupancy of a 'r«e
from rent, and like privii' ' »«
the fixed salary paid to hiiu Iroiu th- ir.iHury
of the Commonwealth.

3 Emplovee — Veteran — Retinv

ment — CompensaUoD —

Salary ■ , ' .u '. ■•:

In St. 1907, c. 4.58. ( 1. providing Inft/ . »

veteran of the civil war i.. t!.- - rv.-P r,. thr

commonwealth, if mcui

dutv. shall l)c retired froi.

theconscnt of the govtri. ■. .

616

INDEX-DIGEST.

COMMONWEALTH — Continued.
rate of compensation paid to him when in
active service, to be paid out of the treasury
of the commonwealth," the word "compensa-
tion" is to be Hmited to salaries the exact
amount of which is determined by law, and
may not include living expenses or other like
advantages, in addition to such salary.

4. Employee — Veteran — Retire-
ment — Consent . . . 494
St. 1907, c. 458, § 1, providing that, with the
consent of the Governor, a veteran of the civil
war in the service of the Commonwealth, if
incapacitated for active duty, may be retired
at one-half the rate of compensation paid to
him when in active service, was designed not
only to provide a pension for the person so
retired, but also to relieve the public service
of persons unable to perform the duties re-
quired of them, and if incapacitated for duty
a veteran may be so retired without his consent
and upon the request and recommendation of
the head of the department in which he is
employed.

Employment of Counsel by Public Officer

in Investigation — Expense . 29

See Public Officer. 2.

Employees of — Hours of Labor —

Domestic Servants — Holidays . 93
See Labor. 3.

Reimbursement for Aid rendered

State Pauper — Notice . . 145

See Pauper. 5.

Liability for Act of Insane Person

released on Parole . . .151

iSee Constitutional Law. 1.

Liability for Damage from Liquid

Asphalt on State Highway . 174
See State Highway. 3.

Employees of — Witness Fees and

Allowances for Travel . . 292

See Fees.

Employees at State House — Va-
cations ..... 413
See Labor. 6.

Title of Land purchased by Trustees

of a State Institution . . 452

See Lyman and Industrial
Schools.

Employees of, Retirement — Teachers

and Employees of Massachusetts
Agricultural College . . 460

See Massachusetts Agricul-
tural College. 2.

Employees of — Workmen's Com-
pensation Act .... 569
See Workmen's Compens.vtion
Act.

COMPENSATION — Of Persons em-
ployed to investigate Statements
or Estimates of Appropriations
for State Commissions, Depart-
ments or Institutions . .441
See Governor. 6.

Of Legislative Counsel and Agents

— Returns . . . .469

See Legislative Counsel and
Agents.

COMPETITION — Purpose to injure or
destroy Business of a Rival —
Discrimination . . . 526

See Constitutional Law. 23.

CONSTABLE

See Civil Service. 8.

325

CONSTITUTIONAL LAW — Appro-
priation — Public Purpose —
Liability of Commonwealth for
Act of Insane Person released
on Parole . . . . 151

The Commonwealth is not liable for any
act of or injury caused by an insane person
released from a public asylum on parole, by
authority of St. 1905, c. 435, § 1; and an
appropriation for the purpose of compensating
the widow of a member of an unpaid commis-
sion in the service of the Commonwealth,
who was killed by an insane person so re-
leased on parole, is not for a public purpose,
and is, therefore, unconstitutional.

2. Taxation — Appropriation of Pub-
lic Funds - — Public Purpose —
Religious Society, School or In-
stitution — Sectarian Control . 153
A society, school or institution which is
under direct ecclesiastical or sectarian control,
and is designed solely or even principally for
the benefit of persons of a particular sect or
denomination, cannot be held to be maintained
for a public purpose such as would justify an
expenditure of money raised by taxation; and
an appropriation for the benefit of such so-
ciety, school or institution from the public
funds raised by taxation would be unconsti-
tutional.

3. Public Funds — Appropriation —

Public Purpose — Money not
directly raised by Taxation . 160

Since the relief of persons who have suffered
loss by fire, or by other great and general ca-
lamity, is not a public purpose which will
justify the expenditure of public funds, an
appropriation of public money for such pur-
pose is unconstitutional, and it is immaterial
that the money sought to be so appropriated
was not directly raised by taxation, but was
received from the sale and rental of lands
belonging to the Commonwealth.

INDEX-DIGEST.

CONSTITUTIONAL LAW — Continued.

4. Insurance — Acoidcnt and Hralth

Disability — Form of Policy —
Insurance Commissioner — Ap-
proval — Exercise of Legislative
Power by Ministerial Officer . 219
A proposed act, vesting in the Insurance
Commissioner authority to approve the form
of every policy of accident or health disability
insurance issued in this Commonwealth, and
constituting such approval a condition prece-
dent to the issuance and delivery of such
policy, without prescribing any standard form
therefor or directing what, in substance, such
policy shall contain, would be unconstitu-
tional under the Constitution of Massachu-
setts, Article XXX. of the Bill of Rights, as
a delegation of legislative power to a minis-
terial officer.

5. Constitution of the United States

— Amendment — Income Tax . 267
A proposed amendment to the Constitution

of the United States, vesting in Congress "the
power to lay and collect taxes on incomes,
from whatever source derived, without ap-
portionment among the several States, and
without regard to any census or enumeration,"
was intended to empower Congress to lay and
collect taxes on incomes without the restriction
imposed by the Constitution of the United
States in Article I., § 8, that "all duties,
imposts and excises shall be uniform through-
out the United States," and § 9, that "no
capitation, or other direct tax, shall be laid,
unless in proportion to the census or enumera-
tion hereinbefore directed to be taken."

6. Great Pond — Right of Legisla-
ture to determine Height at
which Water shall be maintained 273
It is wathin the constitutional p()wer of the
Legislature to pass an act establishing a point
upon the shores of a great pond below which the
waters therein shall not be drawn by persons
entitled to the use thereof, if adequate provi-
sion is made for compensation if the condition
thus established interferes with vested rights
of riparian owners, or affects prescriptive or
granted rights to lower the waters of such ponds.

7. Constitution of the United States

— Discrimination — Proposed
Act forbidding Women under
Twenty-one to enter Chinese
Restaurants . . • • 276

A bill providing that "it shall be unlawful
for any woman under twenty-one years of age
to enter a Chinese restaurant or hotel or to be
served with food or drink therein, and that
"it shall be unlawful for the proprietor of any
such hotel or restaurant to admit any woman
under twenty-one years of age thereto or to
serve her with food or drink therein, . and
further providing that "violation.^ of this act
shall be punished by fine or imprisonment at
the discretion of the court, is in effect a di;,-
crimination against the Chinese by reason of

CONSTITUTIONAL LAW — r
their natioiuility, and tli.r<-fMt.',
would be ill violation of tin- I ■ •
ment to the Con.stitution of t
and therefore unconstitution.n

8. Taxation — Uniform Rate uix)n

All Personal E.statc within the
Commonwealth . . . 201

A proposed act designed to tax pj-r^/itiul

estate at a uniform rate thrf'; ' ■ •'

monwealth, such uniform ra

age of the annual rates for tl^

years, is objectionable upon . 1

grounds, because it subjects p< r

to taxation at a rate different fr..; ...:,■

applicable to real estate, and l>ccau.-»e the nite

so established does not bear any relation to

the amount to be raised by taxation.

9. Taxation — Income Tax . . 299

A general income tax, impo.sod upon the
income from real and personal proport\-. as
well as upon income from annuiti. ' ' ■■.i

professions, trades and eniplosn u

is in addition to and not in sul' -• . r

existing taxes, would probably be htl<i un-
constitutional as a property tax, as not \w'uig.
within the requirement of the Constitution of
Massachusetts, part II., section I., .Vrticlc IV.,
that taxes shall be "proportional and n-a-^.n-
able," upon the ground that thereby a Knatt-r
burden is imposed upon property from which
income is derived than upon property of o<iual
value from which no income is derived, and
would be unconstitutional a.s an excise tax for
the reason that the mere right to own and
hold property cannot be made the subject of
an income tax.

10. Money raised by Taxation —

Public Purpose — Relief of Per-
sons out of Employinont l>y
Construction of Highway" in
Times of Industrial Di-'r; ' ' '

The expenditure of money rais.- : :i

must be limited to a public puri- '•'

not, therefore, within the jn.wer of t ho 1^ *:i>-
lature to authorize the Govonior an<l t ouncil
to issue and sell bonds and t ' •'..• pro-
ceeds in the construction ■■ wIht«>
the primarj' purpose of su< II .n waa
to furnish relief to persons oui u! . ii.i'l"yi"f"i
in times of industrial distress.

11 Amendment to Constitution —

Submis-sion to People ''"

Where a proposed amendment ■ '•

stitution was duly agreed to by ■
the Senate and two-third.^ of tli.
the House of Representatives in t
years, as provirled in Article I.\. '
raents of the Constitution " ■

wealth, but no further acti
respect thereto, it may !><■ ;

neoplc as required by snul zirtidc bi a '^'""J
ESd in the usual manner by a sub^uenl
Legislature.

618

INDEX-DIGEST.

CONSTITUTIONAL LAW — Continued.
12. Publie Highways — Use — Erec-
tion of Structures' over Public
Ways — Eminent Domain —
Public Purpose . . . 375

A proposed bill which provides that upon
petition and after public notice and a public
hearing the board of street commissioners of
the city of Boston may, with the approval of
the mayor, issue a permit to certain individ-
uals named therein "to construct and main-
tain a bridge across Avon Street in said city
for the purpose of connecting buildings owned
by them on opposite sides of said street or for
the purpose of a fire escape, on such conditions
and subject to such restrictions as said board
may prescribe," purports to confer upon such
individuals an absolute right to be granted by
the city of Boston, and in so far as the grant
of such right would be inconsistent with the
rights of other persons, to require the exercise
of the power of eminent domain without
provision for compensation.

A proposed bill which authorizes the city of
Boston through its mayor, if it shall sell the
whole or a part of its real estate on Mason
Street in said city, "to grant to the purchaser
of said estate, and his successors in title, the
right to connect the real estate so sold with
property on Tremont Street opposite said real
estate by means of a covered passageway or
bridge over Mason Street," and provides for
the compensation of any person whose property
may be injured by the erection of the structure
so authorized, appears to contemplate the
exercise of the power of eminent domain, not for
a public purpose, but for the benefit of certain
individuals who may purchase the real estate
described therein.

Both bills are therefore objectionable upon
constitutional grounds.

13. Appropriation of Money raised by

Taxation — Public Purpose —
Museum of Fine Arts . . 380

The Constitution of the Commonwealth, in
chapter V., section II., imposes upon the Legis-
lature the duty "in all future periods of this
commonwealth, to cherish the interests of
literature and the sciences, and all seminaries
of them," and "to encourage private societies
and public institutions, rewards and immuni-
ties, for the promotion of . . . arts, sciences,
. . . and a natural history of the country,"
and the appropriation of money in the reason-
able performance of the duty so imposed would
be for a public purpose.

A proposed bill authorizing the city of Boston
to appropriate money, not exceeding $50,000
in any single year, for the maintenance and
support of the Museum of Fine Arts in said
city, subject to certain conditions to be per-
formed by the trustees of such museum, as
therein prescribed, would therefore be con-
stitutional.

Under existing law, however, the city of
Boston has no authority to appropriate money
for such purpose.

CONSTITUTIONAL LAW — Continued.

14. Public Highways — License —

Use for Commercial or Advertis-
ing Purposes .... 383
A city may constitutionally be authorized to
require, and to issue through its board of
supervisors, licenses for the use of specified
parts of public streets therein for the storage
and sale of merchandise for purposes necessary
for the construction or repair of works or build-
ings and for commercial or advertising purposes
in cases where the consent of the abutting
owner or owners has been obtained. The
issuance of such licenses, if confined within
reasonable limits, constitutes a definition by
public authority of the public use of a highway.

15. Taxation — Exemption — Chari-
table Corporation — Land ac-
quired by Institution incorpo-
rated for Care of Insane . . 384
A proposed bill which provides that "no
private corporation or association now existing
or hereafter incorporated for the care of the
insane shall acquire land ... to be exempt
from taxation without the consent of the legal
voters of the town or governing board of a city
where such land is situated," would not be
unconstitutional as creating an unreasonable
exception from the provisions of law for ex-
emption applicable to property of charitable
corporations generally, or because it delegates
to cities and towns power to determine whether
specific land therein which may be acquired
by such institutions shall be included within
the exemption applicable to land owned by
charitable institutions generally.

16. Public Park — Change of Use —

Back Bay Fens — Proprietary
Rights . ' . . . .406

It is within the power of the Legislature to
authorize the park commissioners of the city
of Boston to permit the erection of a public
schoolhouse upon land known as the Back Bay
Fens, acquired in fee by the city of Boston
under authority of St. 1875, c. 185, which
provided in section 3 that such commissioners
should "have the power to locate within the
limits of the city of Boston one or more public
parks, and for that purpose from time to time
to take in fee, by purchase or otherwise, any
and all such lands as said board may deem
desirable therefor, ..." since the proposed
use of the land in question is undoubtedly for
a public use and no proprietary rights will be
affected thereby.

17. Referendum — Matter of Local

Self-government . . . 424

A provision in a proposed bill that "this act
shall be submitted to the qualified voters of
the Commonwealth at the next State election,
in answer to the question, ' Shall a law enacted
by the General Court of the year 1911 relative
to the development of the Port of Boston and
authorizing the expenditure of $9,000,000 for
that purpose, be accepted' ..." does not

INDEX-DIGEST.

()19

CONSTITUTIONAL LAW — Continued.
fall within the exception permitting a referen-
dum in matters of local self-government, and
would, therefore, be unconstitutional.

18. Taxation — Appropriation of

Public Funds — Public Purjwse
— Relief of Destitute Families
of Striking Emploj'ees . . 486

A proposed resolve, "That there be allowed
and paid from the treasury of the common-
wealth the sum of ten thousand dollars to be
expended ... for the relief of destitute
families of employees of the factories at Law-
rence, who were thrown out of work by the
strike in that city," contemplates an appro-
priation of money raised by taxation for a
purpose other than a public purpose, and if
passed would be unconstitutional.

19. Police Power — Regulation of

Private Business — Sale of
Theatre Tickets . . .491

The right of the Legislature under the police
power to regulate the conduct of a private
business in respect to public safety or morals
does not extend to the regulation of the sale of
tickets of admission to theatres and other places
of amusement; and a proposed bill requiring
that such tickets shall have the price printed
thereon and that it shall be unlawful to sell or
offer for sale any such ticket for an amount in
excess of the printed sum, if passed, would be
unconstitutional and void.

20. Police Power — Regulation of

Sale of Goods, Wares and Mer-
chandise made by Convict Labor
in Prison — Constitution of the
United States — Commerce
Clause . . . . .495

A proposed act requiring that all goods,
wares and merchandise made by convict labor
in any prison, reformatory or jail in this or
any other State and brought into this Com-
monwealth, shall, before being exposed for
sale, be marked "Convict Made," and pro-
viding that any person offering such goods for
sale or having such goods in possession, without
the printed label or mark, shall be guilty of a
misdemeanor, cannot be justified as a valid
exercise of the police power; and since it would
constitute a burden or restriction upon inter-
state commerce, and would therefore be in
contravention of the commerce clause (U. S.
Const., Art. I., § VIIL) of the Federal Con-
stitution, would therefore be unconstitutional
if enacted.

21. Appropriation of Money raised

by Taxation — Moral Obligation
— Repayment of Money paid
under Mistake of Fact or Law —
New York, New Haven & Hart-
ford Railroad Company . . 503
The fulfillment of a moral obligation upon
the Commonwealth, created by a claim growing
out of general principles of right and justice

CONSTITUTIONAL LAW — r

and busfd uijcm cr)tisi.|,'r:iti.ni- .

merely honorary natu-.. - .

binding on the consci.

dividual, is a public pi;; ;

by taxation may be mp; ,

although such claim could i

any legal procedure.

A proposed resolve to pm .
by the Commonwealth of .
paid as taxes by the Xcw Y,.i ... . ,
Hartford Railroad Conipaiiv, if th
determined that the facts" subni:
nection therewith imposed upon i'
wealth a moral obligation of li r

heretofore recognized, would, if
constitutional.

22. Money raised by Taxatiua —

Appropriation — Public Pur-
pose— Homes for \i..'... -
Laborers or Other \ i

A proposed bill authorizii ■,

established by St. 1911, c. >•' ;,

the name of the Massaclr. |

Commission and "for the pu I ; ..^

homes for mechanics, laborers or oiiit-r w«no
earners," and appropriating money therefor,
would be unconstitutional if passed, since it
involves the expenditure of public money for a
private purpose.

23. Police Power — Competition —

Purpose to injure or destroy
Business of a Rival — Di.scrinii-
natiou — Lowering of Prices in
one Locality by a Person. Firm,
Association or Corporation en-
gaged in Business in Several
Localities — "Unfair Discrimi-
nation" 526

The puri)ose to injure or destroy the bui^incss

of a rival !)>■ compel it inn is not illegni.

A propo.sed ad proviiling that "any [XTson,

firm, association or corporation . . . enKuccd

in the production, manufacture or di.Mtril)ution

of any commodity in general use. th;«» -' ■"

intentionally, for the purpose of det^r

the business of a competitor in r^riv !■

discriminate between differ.

of this Commonwealth, or l)c •

by selling such commodity a^

such purpose in one section . . . iti

charged in another section . . . *h:ii

deemed guilty of unfair disiri- ■ — ■ •

is horeljy proliiliifcd .•md di

in effect renders unlawful a

any locality entered into

specified by a person, firm, :i

poration carrying on busint-^- - -a

one such locality.

The prohibition in >»i!rh prop'^'*'^ """^ »■ •»"*

limited to di.scriiii'

liciou.-'ly or for tl.^

business of comp' '

monopoly or for mo "'•■

therefore discloses no

between the acta of di.si ; . .. , • •- • i

620

IXDEX-DIGEST.

CONSTIT U TIONAL LAW — Continued.
and Ouher act; of dis-c-rixniiiation or competitioii
not prohibited to justify such prohibition as a
Tsiid exercdse of the police power.

Such proposed act, therefore, if passed,
would be tmconstitational and void.

24. Amendment to Constitution — '

Taxation — Wild or Forest Lands
— Standing Wood and Timber . 531

A proposed constitutional amendment, giv-
ing to the General Court fuU power and au-
thority 'to prescribe for wild or forest lands
such methods of taxation as wiU develop and ;
conserve the forest resources of the Common-
wealth," if adopt«i would permit the enact-
ment by the Legislature of taxation laws with
reference to woodlands and wood lots without
regard to their size so long as said wood lots or
woodlands 'were wild and forest lands: that
is, in a state of nature and uncultivated except
for the ptirpose of producing wood and timber.

The term "wild or forest lands" does not
include a tract of woodland located within
fence premises of •which the principal use is for
pasturage.

The technical signification of the term "wild
or forest lands" has never been established or
defined by the courts of this Commonwealth.
The term '" standing wood and timber" has not
received, either in the statutes of this Com-
monwealth or in the decisions of the court, a
fixed or technical definition of tmiversal or :
even of general application.

The proposed amendment to the Constitu-
tion, which would confer utyjn the General
Cotirt full power and authority to prescribe
for wild or forest lands "such methods of taxa-
tion as will develop and conserve the forest ;
reso-OTces of the Commonwealth," would au-
thorize the enactment of laws to provide that
wild or forest lands should be taxed without
reference to the element of value contributed
by the growth thereon, and that the tax upon
the value of such growth might be reduced or
altogether omitted in the determination of the
tax to be assessed upon said lands.

2-5. Appropriation of Money raised i

by Taxation — Public Piirpose —
Reclamation and Sale of Wet
Lands — Eminent Domain —
Gratuity .... o-SS

A proposed act providing, in substance, for
the taking by eminent domain, at the assessed
vahiatLon thereof, of tracts of wet lands for
liie jmrpose of reclamation, which, after such
taking and reclamation, are to be cultivated
for two j-ears by the .State Board of Agriculture
and then sold at a price not less than the cost
of such land plus the cost of reclamation, one-
half of any sums received in excess of such
total cost to be awarded to the original owner
or owners of the land sold, and appropriating
therefor the sum of $10,000, might be held to
contemplate the accomplishment of a public
pfurptose which would warrant the exercise of ;
the power of eminent domain and the appro- ■

CONSTITUTIONAL LAW — Continued.
priation of money raised by taxation, if. as
matter of fact, the development and distribu-
tion for occupation of the land affected gave
rdief to a considerable and thickly settied
agricultural region, and affected beneacialiy
the commvmity as a whole, throughout such
region, as well as individuals who acquired the
land itself.

So much of such proposed act as provides
that one-half of any sum received by the Com-
monwealth upon disi)osing of reclaimed land,
in excess of the cost of the land plus the cost of
reclamation, shall be awarded to the original
owner or owners thereof authorizes a pa\-ment
which is in the nature of a gratuity, and would
therefore be unconstitutional.

26. ^Flowage of Land in this Com-
monwealth by Erection of Dam
in Connecticut — Proceedings at
Law — Suits between the States 596
The Attorney-General has no authority to
prosecute claims for the benefit of private
individuals except in the single instance of the
tinascertained individuals who may benefit by
a public charitable trust. The lawftil erection
of a dam in the State of Coiuiecticut by a
Connecticut corporation which results in the
flowage of certain lands and highways within
the Commonwealth at certain times and
seasons does not catise dam^age of such seriotis
magnitude as would justify- the Commonwealth
in bringing legal proceedings in cotirts of the
United States.

Acceptance of Statute upon Approval

by Majority of Voters of Com-
monwealth . . . . 5^
See Statcxe. 1.

Taxation to defray Cost of har-
vesting and selling Ice . .109
See CrtxES azo) Towxs. 2.

Taxation — Exemption from Local

Taxation of Bonds of Boston
Railroad Holding Company . 2S0
See BosTox Railhoad Holdixg

COICPAXY. 2.

Free Transportation of Letter Car-
riers in Uniform on Street Rail-
ways ..... 388
See Street Plajxwats. 2.

Rates — Street and Elevated Rail-
way Corporations — Impairment
of Obligation of Contract —
Discrimination . . . 396
See BosTox Elev.^ted Railway

Co\IPAXT. 1.

Obligation of Contract — Boston

Elevated Railway Company —
Free Transfers .... 400
S^e BoBTOx Elevated R.a.ilw.\t

COilPAXT. 2.

IXDEX-DIGEST.

621

CONSTITUTIONAL LAW — Continued.

Tax on Depcsits in National Banks -109

See Taxatiox. 9.

B1II3 and Resolves — Action of

Governor .... 414

See GovxHXOE. 5.

Public Office — Truant Officer —

Woman ..... 444 '
See Teitaxt Officer.

Regulation of Conduct of Elections

— Qualification of Voters . . 497

See Elxctiox Latts. 2.

Examination by State Ballot Law

Commission of Voting Machines,
Ballot Boxes and Counting Ai>-
paratus — Delegation of Legisla-
tive Authority- .... 507
See Electioxs.

Term of Office of Adjutant General 546

See Adjittaxt Gexeral.

Veto of Executive — Duty to return

BUI with Objections thereto in
"Writing to the Branch in which
it originated — Rettim — Limit

of Time 552

Stt Goverxoe. 7.

CONTEAC

For :

CONSTITUTION OJ THE UNITED
STATES — Amendment — In-
come Tax .... 267
See Cox'STiiL hoxal Lavt. 5.

Discrimination — Proposed Act for-
bidding Women under Twenty-
one to enter Chinese Restaxirants

See CoxsTrrrnoxAL Law. 7.

CONTAGIOUS DISEASES — Powers

of State Board of Health in

Cities and Towns

See State Boakd of Health. 1 .

Temporary Aid to Unsettled Paupers

— Quarantine — Expense
5f€ Pattper. 4.

Inspectors of Health — Right to

enter Schools . • • -

5€€ Boards of Health.

CONTBACT — Counts- Commissioners

— PubUc Works — Notice —
Posting and P*ublication -
See CorxTT CoinnssioxERS. 1.

State Officers or Boards — Hours of

I^bor — Materials and suppUes
,Stv Labor. 2.

Insurance — Place of making — ^

Jurisdiction . • • • ~

See IxscRAX-CE. S

276

137

196

Ste GovEEXOB. 6.

CONVICTION — p:

placed on

Certificate

a Hunter . 614

See Game Laws.

Judgment of Guiiv.' ;'.i'~-"-i n !".!•• —

Revocati'^r. '■:' L-^- :." •. ■ ■•;-•'-'■•■
Auton. - 570

S« L:

CO-OPERATIVE BANK —

>'•■-- ■ Taas.iodrio

- ank . .372

An ur.1 - association formed for

the purp";?; ;i umulating a fund for the
purchase of real estate and for buOdinc thereon,
for making loans and f r h^-mi-.i'i'.-i'::.:; .» fux>d
to be returned to tl ' I>-

ertj* of which is V' ~ ' -le

sliar - ■ "' ■• - ■• "tie

val : at

or ^^ i»«

members — -aLo _re ;.vr;_':^ h.i-. .:.o "Tie or
more shares of stock who ha\-e signed the

articles c: --••••■ f'^. r.i >r.. v -. .iccu-

mulated of

interest :- '^

such mc:

are inve^'

of acctm.^

and loaning it'

manner of a i -^^

of th ^^^ • ,jj

sucL ., %

was that of a sa\-iiigs bank.

CORPORATION — .Vereement ■■: -V.^
^,;.^.,;..,, — Parties — Hu-'hand

A bus-
the contr , , ,

association ;<jr vho ;^-'v;r;-_j--' •->. ."rr:.
poration under the general laws.

120

for-

2. — r

T
au:
tai:.
vel
vie^^
po^-
as :■■
on.

with lii^
under th
. . . exc^

_Buyia<

195

622

IXDEX-DIGEST.

CORPORATION — Continued.

3. Name or Title containing the

Words "Bank" or "Banking" . 250
The provisions of St. 1909, c. 491, § 4,
amending St. 190S, c. 590, § 16, that no person,
partnership, corporation or association, except
co-oi>erative banks, savings banks and trust
companies incorporated under the laws of this
Commonwealth, and such foreign banking
corporations as were doing business therein
and were subject to the examination or super-
vision of the Bank Commissioner on June 1,
1906. shoiild thereafter "transact business
under any name or title which contains the
word 'bank' or 'banking,' as descriptive of
said business," are apphcable to a corporation
organized prior to the passage of such act.

4. Charter — Purpose — Holding

Company — Acquisition of Stock
of Domestic Street Railway, Gas
and Electric Light Corporations 417
Under the provisions of St. 1903, c. 437, § 7,
as amended by St. 1906, c. 2S6, § 7, that " three
or more persons may associate themselves bj-
a written agreement of association with the
intention of forming a corjjoration under gen-
eral laws for anj' lawful purpose which is not
excluded bj- the pro^-isions of section one
except to buy and sell real estate," a corpora-
tion may be organized for the purpose " to buy
and hold a majority of the shares of the capital
stock of any street railwaj", gas and electric
light companies organised under the laws of
this commonwealth to do business within this
commonwealth. ' '

Charitable Corporation — Authority

to increase holding of Real and
Personal Estate iinder Special

Charter 12

See Charitable Corpoka-

TIOX. 1.

Charitable or Benevolent — Author-
ity to increase Holding of Real
or Personal Propenv* . .31
See Charitable Corpora-
tion. 2.

Street Railwav — Receiver — Lia-

bilirs" for Tax . . . .143

See Taxation. 3.

Boston & Maine Railroad — Exten-
sions and Consolidations with
Other Corporations — Liability
to Forfeiture of Charter . . 199
See Boston & Maine Railroad.

The Soldiers' Home in Chelsea —

Purposes of Incorporation . 217

See The Soldiers' Home in
Chelsea.

Transaction of Insurance Business —

Place of Contract — Jurisdiction 222
See Insitrance. 8.

CORPORATION — Continued.

Business — Pranchise Tax — Deduc-
tions — Stocks and Bonds sub-
ject to Taxation if owned bj- a
Natural Person Resident in this
Commonwealth
.See Taxation. 6.

249

Domestic — Taxation — ^Minimum

Limit of Tax — Deductions . 335
See Taxation. S.

Charitable — Exemption from Taxa-
tion of Land for Institution for
Care of the Insane . . . 3S4
See Constitutional JLaw. 15.

COUNSEL — Emplovment of, bv PubUc

Officer 29

See Pttblic Officer. 2.

COUNTY — Officers of — Duty in Case
of Riot or Other Disturbance of
the Public Peace . . . 515

See Riot.

COUNTY COMMISSIONERS — Con-
tracts— " Constmction of Pub-
Uc Works " — Notice — Posting
and Publication . . .9

The words "construction of pubhc works,"
as tised in R. L., c. 20, § 27, pro%-iding in part
that all contracts made by the cotmty commis-
sioners for the construction of pubhc works, if
exceeding $800 in amotmt, shall be made in
writing and after posting and pubUcation of
notice as therein prescribed, do not require
that notice of proposals for the emploj'ment
of architects to prepare plans shall be posted
and published.

2. Of Bristol County — Compensa-
tion for Services as Members of
Joint Board . . . .91

The Governor and Council may not provide
compensation for the county commissioners of
the countj' of Bristol for services as members
of the joint board created by St. 1903, c. 462,
to locate and construct a new drawbridge over
Great Taunton Pdver, and consisting of the
Board of Railroad Commissioners, the Board
of Harbor and Land Commissioners, and the
cotmty commissioners of the county of Bristol.

Readjustment of Salaries — In-
creased Population . . .360
See Salaries.

COUNTY TREASURERS — Paj-ments
— Approval of Bill or Order —
Dutj- to ascertain LegaUty of __
Expenditures .... 559
Under the pro%'isioiis of R. L., c. 21, § 8,
that "each countj- treasurer shall collect,
receive and safely keep all money belonging
to the countj", and pay out the same in ac-
cordance with law," it is the dutj' of a county
treasurer to ascertain whether or not a paj'-

IXDEX-DIGEST.

LC^

COUNTY T TEES — ':

ment •whicr. i' '. ' : :.

order or bi_ _. ,._::,;_ ;•

commi^oneri, may be made by h.

TO la^, and he is therefore reqiiir

himseK that the expense for whicji z:.y-^.^-:^i

is to be made ■was legally incmred in the first

instance.

COITRT — Money paid into — Interest . 290

Sii CiERSS OF CotTBT. 2.

COURTS — District, Police and Munic-
ipal — Justices and Clerks —
Salaries — Readjustment —
County Treasurer ... 3

St. 190i, c. 4->3. -R-Lich established the
salaries of the justices, clerks and assistant
clerks of certain district, police and municipal
courts upon a basis of population, expressly
excepted from such classincation the justices
and clerks of the district courts of Franklin
County, and such exception was not anected
by St. i905, c. 339, providing for a readjust-
ment of such salaries by the county treasiirers
of the several counues, after the taking of the
deceimial census of the year 1905.

It follows, therefore, that the rre-?.?'iTer of
the county of Franklin is not a! - :■
readjust the salaries of the o±
district courts of such county uj . . --s

of population.

CREDIT UNION — Formation of —
Subscribers to Agreement of In-

DEDUCTIONS — T

corporation
See CmzEX.

411

DAM

E^iuto ...
See Taxattox. S.

DKFBCT C~ ■" '"— "~ "PAIR —

5<c siAifc HluHttAt. .y.

DEMAND NOTE.

See Note.

DEPARTMT 7

■ Investigation of Officers by Agent-

Experts employed by GoveriKr 4'-VJ
See GovzRxoa. 4.

• Persons employed '
Statements or E-
Contract — Comp^rii^u ,4 n
See GovEBNOs. 6.

• Erected by Connecticut Corpora-
tion in Connecticut — Flowage
of Land in Commonwealth —
Xtiisance — Remedy . ^ - 596
See CoxSTrnmoXAi. Law. 26.

DAMAGE — From Liquid Asphalt on

State Highway — Liability . 174
See State Highttat. 3.

DATE — Of Payment of Town Note

Payable "'during the year 1912" 523
See Towxs, 4.

DAY — Action of Governor on Bills and
Resolves — Sundays ani Holi-
days . . • 414

Sf€ GOVEKXOB. O.

DAY'S WORK <5I

;?t:t Labor. 1.

State Officers and Boards — Con-
tracts — Hours of Labor — Ma- _
terials and Supplies . - . <3
5e€ Labok. 2.

DEBTS — Refunding or Renewal of. by _
Citv or Town . - • • ' ^

.Sff Cities ant) Towxs. 1.

DEPOSITS — I

- — Tit

409

DIRECTOR — Of Insurance Company

— Investment of Funds

5€^ IXSCBAXCE. 7.

DIRECTOR or BUREAU OF STA-
TISTICS — N v. — ( ■■.-..:; -a-

the S.ii:-e

See Towns. 6-

DISCRIMINATION . ^

^:-.. CoNSTITt-nOXAL LaW. 4.

Lowering of Prices in

bvaP.r- :..Fir::;

ii.

See CoxHniLiioxAL L.*.v.

183

DISTRICT OF COL

ri'ion orpa:.

S-t F'HU^N ■ -

DISTRICT. POLICE AND MUNIC-
IPAL COURTS.

5t« COVKT*.

DISTRICT POLICE -

RuiiJinc? — ."^aii;"

tilauon

See BciLDixc*. 1

DOMESTIC SERVANTS — Uour* o.'

I.,,:- r — H 'a i.i>> • • . JM

624

INDEX-DIGEST.

DRUGGIST — Vendor of Intoxicating

Liquors ..... 461
See Civil Service. 10.

DUMPING INSPECTORS — Hours of

Labor 420

See Labor. 7.

EDUCATIONAL PURPOSES — Wood-
land used in teaching Forestry —
Exemption from Taxation . 247

See Taxation. 5.

ELECTION LAWS — Election — Death
of Candidate on Morning of Elec-
tion Day — Failure to elect —
Special Election — Governor . 457
Where a candidate for the office of clerk of
the courts died on the morning of the day of
the election, but as the fact of his death was
not generally known and his name was upon
the official ballot the highest number of votes
was cast for him, there was a failure to elect,
and the Governor should cause a precept to
be issued for the election of such officer in
accordance with the provisions of St. 1907,
c. 560, § 306.

2. Qualification of Voters — Consti-
tutional Law — Legislature —
Police Power — Regulation of
Conduct of Elections . . 497

The qualifications which shall entitle any
person to vote or to be voted for and the right
to elect and to be elected to public office are
defined in Article IX. of the Declaration of
Rights and Articles III., XX. and XXI. of
the Articles of Amendment to the Constitution
of the Commonwealth.

The conduct of elections may be regulated
by the Legislature under the police power for
the purpose of providing an easy and reason-
able mode of exercising the constitutional right
preventing error and fraud and securing order
and regularity; but all such regulation must
be subordinate to the provisions of the Con-
stitution and cannot add to or diminish the
qualifications of a voter as therein prescribed.

ELECTION LAWS — Continued.
elected, such office shall be vacated and a new
election shall be held to fill it, are reasonable
and necessary precautions against bribery,
fraud and other improper conduct in con-
nection with elections and, therefore, a pro-
tection to the constitutional right to elect and
to be elected to office, is primarily a question
of fact and, therefore, a proper subject for the
determination of the Legislature.

It would seem, however, that the enforce-
ment of such stringent regulations as those
above described could hardly be held to be a
reasonable regulation of the exercise of the
right to take part in elections.

A provision in the proposed act requiring
that persons who, by reason of age or physical
infirmity, are unable to reach the polls without
assistance and are, therefore, transported to
and from the polls shall, before voting, make a
statement under oath of such disability, is
clearly unconstitutional as imposing a quali-
fication upon such persons additional to those
prescribed by the Constitution.

ELECTIONS — Voting Machines, Ballot
Boxes and Counting Apparatus
— Examination by State Ballot
Law Commission — Constitu-
tional Law — Delegation of Leg-
islative Authority . . . 507
A provision in a proposed act relating to
the use of voting machines, that "the State
Ballot Law Commission shall also constitute
the State Board of Voting Machine Exam-
iners, and shall at such times, under such
conditions and after such public notice as they
shall determine, examine voting machines,
iDallot boxes and counting apparatus, and they
shall make and file^ with the Secretary of the
Commonwealth their report on such machines,
ballot boxes and counting apparatus as in their
judgment conform to the requirements of law,
together with such written or printed descrip-
tions and such drawings, specifications and
photographs as shall clearly identifj'^ such ma-
chines," does not vest in or impose upon the
State Ballot Law Commission any powers and
duties which involve a delegation of legislative
authority which would be objectionable upon
constitutional grounds.

The provision above quoted does not directly
require the State Ballot Law Commission
to approve only such machines as fulfill the re-
quirements of the primary law, but indirectly
requires such approval, since they are required
to make and file their report only on such
machines, ballot boxes and counting apparatus
as in their judgment conform to such require-
ments.

ELECTRIC LIGHT COMPANY —

Holding Company incorporated
to acquire Stock of Domestic
Street Railway, Gas and Electric
Light Corporation . . .417

See Corporation. 4.

INDEX-DIGEST.

C25

ELECTRIC LIGHT COMPANY —

Continued.
Domestic — Taxation — Bonds se-
cured by Mortgage on Real Es-
tate and Personal Property —
Exemption .... 431
See Taxation. 10.

ELEVATED RAILWAY COMPANIES

— Special Rates to Pupils of
State Normal Schools . . 75

^ee Schools. 2. *

Rates — Constitutional Law . . 396

See Boston Elevated Railway
Company. 1.

EMINENT DOMAIN — Reclamation
and Sale of Wet Lands — Gra-
tuity 538

See Constitutional Law. 25.

EMPLOYEES — Of Commonwealth —
Retirement — Teachers and Ern-
ployees of Massachusetts Agri-
cultural College . . . 400
See Massachusetts Agricul-
tural College. 2.

Of Commonwealth — Veteran — Re-
tirement — Consent . . 494
See Commonwealth. 4.

Of Commonwealth — Workmen's

Compensation Act . . • 569

See Workmen's Compensation
Act.

Of Commonwealth — Hours of

Labor — Holidays . . .93

See Labor. 3.

ESTABLISHMENT — Inspection of

Buildings — Accommodations
for Ten or More Employees
above Second Story . . .231

See Buildings. 2.

Mercantile— Employment of Women 209

See Labor. 5.

EXCISE TAX — Exemption • 280

See Boston Railroad Holding
Company. 2.

On Express Business on any Railroad,

Railwav, Steamboat or Vessel in
the Commonwealth — Computa-

tion '^'^^

See Taxation. 4.

EXECUTIVE COUNCIL — Petition for

Pardon — Reference • ■ ^

See Governor. 1.

EXECUTOR — Transfer to, of Bond« of

Comnionwoiilth . 104

.Sec Treasiueu and Receivku-

Gkneual.

EXEMPTION — From Taxmi..., --

Farming Utensils i'.

See Taxation. 2.

From Taxation — Woodland
for Educational Purpost-s .
See Taxation. 5.

u.-*o«l

Civil Service — Officer
See Crv'iL Service.

217

loS

EXPENDITURES — Of Dcimr* mcuts
and Institutictns — .\uthority of
Governor and Council to in-
vestigate .... 226
See Governor AND Council. 1.

Proposed — Statement or Estimate

— Investigation of Officers, De-
partments or Institutions . . 403
See Governor. 4.

EXPLOSION — Fire Insurance 70

S/r Insur.\nce. 4.

EXPLOSIVES — Storage — "•Building"

— Iron Tank for keeping Gaso-
lene . • • . 5'-

The word "building" as used in St. 1904,
c. 370, § 3, as amended by St. 1905. c. 2S0, pro-
viding that no building shall 1m; erect<'<l or
used in any city or town for thf^ ko<'iMnK.
storage, manufacture or sale of gxii. ' '

certain other exiilosivcs without a ■

the mayor and aldermen of a cit\- ■
men of a town, a permit from tin '
District Police, or some i>er.soii <!■

him, applies to and includes ai. .-••. •

closed except by pipe ronncclions. !in( pla.-.-<i
upon an uncovered brick f(mii<lati'>i;. ...-i2ti.mI
and intended as a •'container" i
and would apply to and inrhidc -
ture, even if under ground, from
liquid is taken by means of a pump.

EXPRESS BUSINESS-" '-

road. l{ail\\ay. .-■ '^

Ves.si-1 ill ihi' CoMia.

Computation of Excise lux
Sec T.\XATioN. 4.

EXTRADITION — Governor — Duty of

Executive— Disf-rit I.. I. i*-

Where the papers accompi
of the Executive of anofh'T ~
and extradition of an al
justice of that State ai
proper form, and n<> <|"
identity of the person d.m.i:
offered to contradict the sw.
affidavits accompanying su.:
or about the date of the a
person was in the deniaiidin.

626

INDEX-DIGEST.

EXTRADITION — Continued.
after left it and has been found within the
Commonwealth, it is the duty of the Governor
to honor such demand, and he has no legal
discretion to refuse to honor it, even if upon
full hearing he should be of opinion that under
all the circumstances the interests of justice
would be served by such refusal.

FACTORY — Employment of Children

— Certificate . . ' . . 177

See Labor. 4.

FARMING UTENSILS"

tion from Taxation .
See Taxation. 2.

Exemp-

FEEBLE-MINDED PERSON — Keeper
of Hospital for Insane and
Feeble-minded — Suitable Per-
son — Resident or Consulting
Physician .... 359

See License. 2.

Keeper of Hospital for Insane and

Feeble-minded Persons — Suit-
able Person — Partnership . 563
See License. 4.

FEES — State Board of Health — Food
and Drug Inspectors — Em-
ployees of Commonwealth —
Witness Fees and Allowances
for Travel . . _ . .292

Food and drug inspectors appointed by the
State Board of Health are employees of the
Commonwealth within the meaning of R. L.,
c. 204, § 47, as amended by St. 1910, c. 311,
providing in part that "any employee receiv-
ing regular compensation from the common-
wealth shall not be entitled to a witness fee
before any court or trial justice ... in a
cause in which the commonwealth is a party,"
and are not entitled to witness fees for at-
tendance at court or allowances for travel in
any cause in which the Commonwealth is a
party.

For Naturalization

iSee Clerks of Court.

106

For Licenses for Sale of Intoxicating
Liquors — Independent Indus-
trial Schools . . . .315
See Schools. 4.

Tuition — Independent Industrial

Schools — Nonresident Pupils . 315
See Schools. 4.

Registration of Motor Vehicles owned

by the United States . .318

See Massachusetts Highway
Commission.

For Prosecution of Claim for Gratu-
ity to Veteran — Payment . 561
See Veteran.

FIRE — Relief of Persons who have suf-
fered Loss by — Public Purpose 160
(See Constitutional Law. 3.

FIRE INSURANCE.

<See Insurance.

FIREMEN — Injuries suffered in the
Performance of Duty — Drill or
Exercise of Horses . . . 279

See Firemen's Relief Fund.

FIREMEN'S RELIEF FUND — Inju-
ries suffered in the Performance
of Duty — Drill or Exercise of
Horses 279

R. L., c. 32, § 73, as amended by St. 1903,
c. 253, creating a firemen's relief fund, to be
used "for the relief of firemen . . . who may
be injured in the performance of their duty
at a fire or in going to or returning from the
same," does not authorize the use of such
fund for the relief of firemen who may be
injured while taking part in drill, or while
exercising the horses of the department by
order of the superior officers.

FISH TRAP — License -
Towns
See Tide Water.

Cities and

FISHERIES AND GAME — Pursuit of
Wild Fowl — Launch or Power
Boat . . . . .189

The shooting of wild fowl from a launch or
power boat, which has been used to reach a
place frequented by such wild fowl, and is
there anchored, constitutes . a violation of the
provisions of R. L., c. 92, § 11, as amended by
St. 1906, c. 241, which forbids the pursuit of
wild fowl "with or by aid of a boat propelled
by steam or naphtha, or of a boat or vessel
propelled by any mechanical means other than
saUs, oars or paddles."

FISHING — Regulation of Public Use of
Sources of Water Supply — Arti-
ficial Reservoirs . . . 364
See State Board of Health. 5.

FOOD AND DRUG INSPECTORS —

Witness Fees and Allowances
for Travel . . . .292

See Fees.

FOOD PREPARATION — Containing
Alcohol — • Receptacle — State-
ment of Contents . . . 216
.See Alcohol.

FOREIGN CORPORATION -- Rail-
road Company — Acquisition
and Control of Stock and Bonds
of Domestic Street Railway Com-
panies — Control of Domestic
Street Railway Companies —
Leasing — Forfeiture of Charter 53
House Bill No. 1358, providing in section 1

that "it shall be unlawful for a railroad cor-

INDEX-DIGEST.

027

FOP-EIGN CORPORATION — Continued.
poration operating a railroad in this Common-
wealth to acquire, own or hold, directly or
indirectly, the stock or bonds of any street
railway company having a location in any
city or town in this Commonwealth, or to
lease the franchise and property of any such
street railway," and in section 2, that "upon
petition of the attorney-general of the Com-
monwealth to the supreme court in equity
... a receiver shall be appointed who
shall take possession and control of the prop-
erty of any street railway" included in sec-
tion 1, with further provision in section 4
for forfeiture of the charter of such company,
after due notice and hearing, is ineffective to
prevent the purchase of the stock of a domestic
street railway by a railroad corporation char-
tered in another State and duly authorized
thereto by the laws of that State.

Such bill prohibits the leasing of the fran-
chise of a domestic street railway company by
a railroad corporation operating a steam rail-
road within the Commonwealth.

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

2. Laws of District of Columbia . 163

St. 1907, c. 437, § 56, which defines a foreign
corporation to be any corporation organized
"under laws other than those of the com-
monwealth for purposes for which domestic
corporations may be organized under the
provisions of section seven" of such chapter,
extends to and includes a corporation chartered
under the general laws of the District of Co-
lumbia.

3. Usual Place of Business within the

Commonwealth . • •. 187

A foreign corporation engaged in the busmess
of operating mines beyond the limits of the
Commonwealth, which maintains an office
within the Commonwealth as a place for
meetings of its board of directors, has a usual
place of business therein, within the meaning
of St. 1903, c. 437, § 58, and must comply with
the requirements of sections 58-60 of such
chapter.

4. Usual Place of Business — Com-

missioner of Corporations .^_^oo

The words "usual place of business, in
R. L., c. 126, § 4, which provides that every
foreign corporation which has a usual place of
business within the Commonwealth, or is
engaged therein, permanently or temporarily,
in the construction, erection, alteration or
repair of a building, bridge, railroad, railway
or structure of any kind, shall, before doing
business in this Commonwealth, in writing
appoint the Commissioner of Corporations and

FOREIGN CORPORATION

his successor in oflice to he its t:
attorney, inchide a foreinn corp
has executive offices within tlio (
where a considerable purt of th.
of the business of the compauj

III
h
ih

!lt

Insurance Company — Tax upon

Premiums — Reciprocal LcKii*-
lation . . . . .19

.Sec In8CR.\nce. 1.

Insurance — Change from Assess-
ment to Old Line Business
Valuation of Policies . . S2
See Insurance. 5.

FOREIGN LANGUAGE — Duty of

FRANKLIN COUNTY — District
Courts — Adjustment of Salaries
— County Treasurer . 3

jSee Courts.

FREE TRANSFERS — On Boston Ele-
vated Railway Company — Con-
stitutional Law — Obligation of
Contract . . . • 100

See Boston Elevated Railway

C0XIP.\NY. 2.

FUNDS — Of Insurance Company
Investment
See Insurance. 6.

147

GAME LAWS — Violation — Con vie
tion — Plea of Nolo — Com'
placed on File — Certificato of
Registration • . • • ^U

A plea of nolo where the case is placed on tUo
and such pica is not followed by a scntoncc or
other form of final judpmont. is not a "con-
viction" within the nu-anuiK of M. lUll.
c 614 § 11, which provides that •every por.ion
convicted of violating the game hiws MiaU
immediately surrender to the officer who
secures such conviction his certificate ot
registration. ..."

GAS COMPANY — HoldinK Company
inc.rporated to acquire block of
Doni.stic Street Railway. Caa
and Electric Light Cor|)oration 417
See Corporation. 4.

GASOLENE '-

See E.XPL08IVE8.

GENERAL COURT - Order l.xinK
Limit of Time for Perform-
ance of Duty of Attorney-
General to advise . • • *•"

See Attorney-General. 4.

628

INDEX-DIGEST.

GOODS, WARES AND MERCHAN-
DISE — Made by Convict Labor
in Prison — Regulation — Con-
stitution of the United States —
Commerce Clause . . . 495

See Constitutional Law. 20.

GOVERNOR — Petition for Pardon —

Executive Council . . .5

The Governor may, in his discretion, refuse

to refer to the Executive Council a petition for

pardon or a petition for commutation of the

death penalty.

2. Registered Bonds of the Common-
wealth — Signature — Rubber
Stamp . . . . .65

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

3. Master in Chancery — Removal

from County — Vacancy — Ap-
pointment .... 186
It is the duty of the Governor, under the
provisions of R. L., c. 165, § 52, to appoint
masters in chancery as vacancies occur, "so
that the number thereof in the several counties
shall be eleven in Suffolk, nine in Essex, seven
in Middlesex, seven in Worcester and not more
than five in any other county;" and where
a master in chancery appointed for the county
of Middlesex removes therefrom with the in-
tention of permanently residing elsewhere, a
vacancy is created in the list of such officers
for such county, which the Governor is author-
ized to fill by appointment.

4. Statement or Estimate of Proposed

Expenditures — Investigation of
Officers, Departments or Institu-
tions of the Commonwealth —
Employment of Agents or Ex-
perts 403

The authority of the Governor under St.
1910, c. 220, § 1, in substance requiring that
certain statements and estimates should be
submitted to the Governor and Council, and
that the Governor should transmit the same
to the General Court with such recommenda-
tions, if any, as he might deem proper, was not
extended by the provisions of St. 1911, c. 82,
authorizing him "to employ such persons as
he may deem proper to make such investigation
of any of the commissions, departments or
institutions of the commonwealth as he be-
lieves is necessary to enable him to carry out
the provisions of chapter two hundred and
twenty of the acts of the year nineteen hundred
and ten," and his power to investigate, by
means of agents, investigators or experts em-
ployed under the provisions of the chapter last
cited, any officer, department or institution,
must be predicated upon the existence of a
statement of proposed expenditures and of

GOVERNOR — Continued.

other matters required by St. 1910, c. 220,

which is to be transmitted to the Legislature.

It follows, therefore, that after the Governor
has transmitted to the Legislature the state-
ments or estimates of expenditure in relation
to any particular officer, department or insti-
tution, there is no longer authority or occasion
for any such investigation.

5. Constitutional Law — Bills and

Resolves — Action — Five Days

— Sundays — Holidays . . 414

Under the provision of the Constitution of
the Commonwealth, Part II., c. I., § I., Art.
II., that "if any bill or resolve shall not be
returned by the governor within five days after
it shall have been presented, the same shall
have the force of a law," the governor is to
be allowed five full days, beginning at 12
o'clock midnight next following the time
when the bill is presented, in which to exercise
his right either to signify his approval by
signing such bill or to return it with his objec-
tions in writing to the Senate or House of
Representatives.

In computing such period of five days,
Sunday is to be excluded and holidays included.

6. Appropriations for State Commis-
sions, Departments or Institu-
tions — Employment of Persons
to investigate Statements and
Estimates — Contract — Com-
pensation .... 441
Under the provisions of St. 1911, c. 82, that
"the governor is hereby authorized to employ
such persons as he niay deem proper to make
such investigation of any of the commissions,
departments or institutions of the common-
wealth as he believes is necessary to enable
him to carry out the provisions of chapter
two hundred and twenty of the acts of the
year nineteen hundred and ten," and that for
such purpose he may "expend such sums out
of the amount authorized by chapter five
hundred and forty-nine of the acts of the year
nineteen hundred and eight as may be approved
by the governor and council," the Governor,
acting independently of the Council, has no
power to determine, by contract or otherwise,
the rate of compensation to be paid to the
persons employed by him to make the re-
quired investigations.

Since the purpose of St. 1910, c. 220, pro-
viding in substance that statements or esti-
mates for appropriations for State commissions,
departments or institutions shall annually be
submitted to the Governor and Council, and
transmitted by the Governor to the Legisla-
ture, with such recommendations as he may
deem necessary, the Governor and Council
may not legally allow persons employed under
authority of St. 1911, c. 82, above cited,
compensation for investigations or for reports
thereon made since the prorogation of the
General Court for the year in which they were
employed, nor compensation for time spent in

INDEX-DIGEST.

020

GOVERNOR — Continued.
appearing before the joint committee on ways
and means of the General Court to explain
their reports or to be questioned in regard to
them, or for time spent in exphvining their
charges for services to the Council or to any
committee thereof.

7. Veto — Constitutional Law —

Duty to return Bill with Objec-
tions thereto in Writing to the
Branch in which it originated —
Return — Limit of Time . . 552

Where certain bills, due under the provisions
of Article II of Section I of Chapter I of the
Constitution of the Commonwealth to be re-
turned on May 27 by the Governor, with his
objections thereto in writing, to the House of
Representatives, in which branch such bills
originated, were found, on the morning of
May 28, on the desk of the clerk of the House
of Representatives, and the speaker of the
House of Representatives, on a point of order,
ruled that the vetoes were not properly re-
turned until received by the clerk at 8 o'clock
upon the morning of May 28, and such bills
were transmitted by the clerk to the Secretary
of the Commonwealth, with a statement of the
above facts, it is not the duty of the Secretary
to determine whether or not such bills were
seasonably returned, and he should receive
and record them among the laws of the current
year, leaving the question of their validity to
be determined by the proper tribunal.

It would seem, however, that the duty de-
volving upon the Governor under the provi-
sions of Article II of Section I of Chapter I
of the Constitution, if he has objection, to
return a bill or resolve within the prescribed
period of time to the branch of the Legislature
in which it originated, should be performed
with sufficient formality to insure that the
return shall be made to some proper officer of
the Senate or House of Representatives, as the
case may be, if the branch to which the bill or
resolve and the objections are sent is not in
session.

Effect of Acceptance of Resignation

of Public Officer ... 1
^ee Public Officer. 1.

Executive Duty as to Extradition

— Discretion . ■ ■ • '*'^-'

See Extradition.

Election — Death of Candidate on
Morning of Election Day —
Special Election
See Election Laws. 1 .

457

GOVERNOR AND COUNCIL — Au-
thority to investigate Expendi-
tures of Departments and Insti-
tutions—Committee on \^ays
and Means . ■ • • -.-"

The Governor and Council may make in-
vestigations for the purpose of ascertaining

GOVERNOR AND COUNCIL /.

whether or imt inoiiry ruij.rni, ■ .,.

Legislature lor tiit.- .-levcrai dtp ,.1

institutions which, or the e.\; .f

which, are by law subject to thr ,i,^

is being expended in a pr r, liut

they may not constituti nt tho

expenditure of money .so ai , , . . ; for the
purposes for which it was approprmti'd.

The committee on ways and nu'iins of tho
Legislature may at any time iL-^k the lulvico of
the Governor and Council in rci^ard to a pro-
posed appropriation, i>ut is iicit rcmiinii ~u to
do.

2. .\nnual Appropriations - ■ Maic-

ments of Amounts re<iuired for
the Ensuing Fiscal Year — Veri-
fication of Estimates — Exami-
nation and Audit of Books of
Account ..... 340
St. 1910, c. 220, § 1, requiring that every
officer or board having charge of any depart-
ment, institution or undertaking which rcci-ivwi
an annual appropriation fn^in the ircaMiry of
the Commonwealth, .shall annually .sul)init to
the Auditor statements in detail showing tho
amounts appropriated for the current fiscal
year and required for the ensuing fiscal year,
and that the Auditor shall comliinc >urh
statements with a like statenu-iit rclaling to
his own department in one document, to Ik?
printed and submitted on or Ix-forc the firnt
Thursday in January to the Governor and
Council for examination, and by the Governor
transmitted to the General Court with such
recommendations as he may deem pro|KT.
does not confer upon the Governor and Coun-
cil, or upon the Governor alone, any m-w or
additional authority to examine, for tlie pur-
pose of verifying or otherwi.se invest iRutinK
such statements, the cxjienditures or »KK)k.H of
accounts of, or to prescribe for suc-ii |nir|>o»H'
the method of accounting which shall In- ui*o<l
by any State officer or lx>urd.

.\ppointnient and Compen.sation of

Officers of Westltorough Stuto
Hospital — .Vpprovul . •<!•*

.See Westbokocou St.\te Hos-
pital.

GRATUITY — Reclamation and Sale of
Wet Lands — Eminent Domain
— Award of Profit.s of Half by
Commonwealth to Oriinnal

Owner or Owners . •

See CoNSTiTUTioNAi. Law. 25.

53H

To Veterans of Civil War — Com-

missioned Officer . . • -^^l

,s', , Vetehan.

GREAT POND — RiRht to determine
Height at which Water «hall be
maintained ■ „

.See CON9TITUTIONAL Law. •».

630

INDEX-DIGEST.

GREAT ¥OND — Continued.

Water Supply — Regulation of Pub-
lic Rights — Wright's Pond and
Ashley's Pond in City of Holyoke 302
See State Board of Health. 4.

Control and Regulation — Public

Rights — Water Supply . 448

See State Board of Health. 6.

GUARDIAN — Of Insane Inmate of
Public Institution — Appoint-
ment ..... 132
-See Insane Person. 1.

Of Insane Person — Petition to sell

Real Estate — Notice . . 252

See Insane Person. 2.

GYPSY AND BROWN-TAIL MOTHS

— Owner of Real Estate — De-
struction of Eggs and Nests —
Expense — Assessed Value of
Lands — Buildings . .34

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

2. State Forester — Work of De-
struction of Moths — Co-opera-
tion with Private Individuals —
Supplies . . • . . . 536

Under the provisions of St. 1905, c. 381, § 3,
as amended by St. 1906, c. 268, § 1, and St.
1908, c. 591, § 1, providing that the superin-
tendent for the suppression of the gypsy and
brown-taU moth, among other things, "may
act in co-operation with any person, persons,
corporation or corporations, including other
states, the United States or foreign govern-
ments," and "may de^^se, use and require all
other lawful means of suppressing or prevent-
ing said moths," the State Forester, who
succeeds to the powers of the superintendent
for the suppression of the gypsy and brown-
tail moth under the pro\dsions of St. 1909,
c. 263, when actually engaged in the work of
destrojang such moths in a given locality, may
co-operate with adjacent landowners, who are
carrying on work upon their own premises in
conjunction \^^th the public work, by furnish-
ing them at cost supplies to be actually used
in such work, or may authorize the local
superintendent to furnish such supplies as his
agent.

HEADS OF PRINCIPAL DEPART-
MENTS.
See Civil Service.

HEALTH, STATE BOARD OF.

See State Board of Health.

HIGHWAYS — Construction of, in
Times of Industrial Distress,
to relieve Unemploj-ed — Money
raised by Taxation — Public Pur-
pose ..... 305
See Constitutional Law. 10

Use — Erection of Structures Over

— Public Purpose . . . 375
See Constitutional Law. 12.

Use for Commercial or Advertising

Purposes ..... 383
See CoNSTXTUTiON.\L Law. 14.

HISTORY — Of Militar^^ Organization of
Massachusetts Volunteers — Ap-
proval . . . . .149
See Secretary of the Com-
monwealth.

HOLDING COMPANY — Incorporated
to acquire Stock of Domestic
Street Railway, Gas and Electric
Light Corporation . . . 417

See Corporation. 4.

HOLIDAY — Action of Governor on Bills
and Resolves within Five Days

— Constitutional Law . . 414
See Governor. 5.

HOLYOKE, CITY OF — Wright's Pond
and Ashlev's Pond — Regulation
of Public Rights . . .302

See State B'oard of Health. 4.

HOMES — For Mechanics, Laborers or
Other Wage Earners — Appro-
priation of Public Funds . .521
See Constitutional L.\w. 22.

HOSPITALS — Tuberculosis — Main-
tenance of Ward or Beds in Pri-
vate Hospital or General City
or Town Hospital — Subsidj^
from Commonwealth . . 459

See Cities and Towns. 4.

For Care of Insane and Feeble-
minded — Keeper — Resident
or Consulting Physician — Suit-
able Person .... 359
See License. 2.

For Care of Insane and Feeble-
minded Persons — Keeper —
Partnership — Suitable Person . 503
See License. 4.

Public or Incorporated — Records
— Inspection .
See Public Records. 4.

581

INDEX-DIGEST.

G31

HOTEL — Intoxicating Liquors — Cer-
tificate of Inspector of Factories
and Public Buildings . . 319

jSee License. 1.

HOURS OF LABOR.

See Labor.

HUNTERS — Registration of — Citizen

— Residence on Land used ex-
clusively for Agricultural Pur-
poses 206

Under the provisions of St. 1908, c. 484, § 3,
which exempts, from the requirement pre-
scribed by the statute of a certificate of registra-
tion, citizens who are bona fide residents on
land owned or leased by them, and on which
thej^ are actually domiciled, such land being
used exclusively for agricultural purposes, a
person who is resident in a city or town and
not upon a farm, but who is the owner of a
wood lot used for growing wood, is not exempt
from registration. A farmer, however, who
is actually resident upon land used exclusively
for agricultural purposes, may hunt without
registration in a wood lot which is a part of
his farm.

Registration — Certificate — Sur-
render on Con\'iction of Viola-
tion of Game Laws — Plea of
Nolo — Case placed on File . 514
See Game Laws.

HUSBAND AND WIFE — Corporation

— Agreement of Association . 120
See Corporation. 1.

ICE — Harvest and Sale of, by Cities and

Towns 109

iSee Cities and Towns. 2.

INCOME TAX — Constitution of the

United States — Amendment . 267
iSee Constitutional Law. 5.

Under Constitution of Common-
wealth . . . • • 299
See Constitutional Law. 9.

INDEPENDENT INDUSTRIAL

SCHOOLS — In Addition to
Public School System — Initia-
tion — State Board of Educa-

tion 261

See Schools. 3.

Nonresident Pupils — Tuition Fees

— Maintenance Fund — Dispo- _
sition of Revenue ■ • 31o
See Schools. 4.

INNHOLDER — "Open" or "PubUe"

Bar . . . ■ • 6

See Intoxicating Liquors, i.

132

IjuI ttU-

INSANE PERSON — Prnr

scs.<ion of Officer

fur Insane — Di^i

monwealth — Guurdi:iu — I'uLUc

Administrator .

The receipt of money In l..r,!'M,i.
charges supported in ins'
sane or in private fnmili<-
sion of the St::'
Board or by t!
for safe kecpin

are not competoiiL lo care for it,
thorized by any provision of law.

Money so received may • • * ' — "•• ' - de-
posited in a bank or trust ,er
funds, to the account of .^ . or
institution for the insane.

Such money may not be applied by the
Commonwealth to the payment >.i' tl-.i i \t.orw
of supporting any such public ng

his lifetime, without the api" a

guardian; it may, however, ! in

payment for such support, up«;i hy

the insane person entitled theri' .ter

his discharge from custody a.s uurL*-.;'. tred,
although even in this case it is advisable that
a guardian should h'> ■■'■'■'' '■■■'■

Money left in the ; -rs

of the several State i: ne

by patients who wen' ^u; : ' m.

1, 1904, as town charges. 'fc

that date, should be p.ail - of

the poor of the places to wliicli ouch p.iiients
were chargeable, if claimed by them on account
of charges for the support of -■ ' ■ • nts;
or, if no such claim is made, - dd

to the public administrator r,f in

which the institution is -r so

retained which belonged i ita

who were supported as St.. - . be

covered into the treasury of the Comtuon-
wealth.

2. Guardian — Petition to aell Real

Estate — Notice

Under the proAnsions of St. 1900. r.
§ 102, that upon a potifir.n of :\ iTir<!;'ir
license to sell prop«r'
an insane person a h

granted to such guar;....

notice of the petition thereior i

to the overseers of the poor of t:

in which the spenilthr'

board of insanity in '

son," such notice, ii.

person, is to be given only to the suitc it

of Insanity. . ,, , ..

R. L., c. 145. § 41. provulin- i'." »
servator shall give Iwnd u-
guardians of insane person",;"
provisions of .law rchUiye '
sale or mortgage of the
persons applicable to sueli
repealed by St. 1909. c.
elusive, pro\^dmg for t!
guardians for insane persoi.- •'•'•'",•/
and is to be construed m connecUon wiUi
statutes.

1 for
of

trd

-on-
of
dl

..f
■uch

632

INDEX-DIGEST.

INSANE PERSON — Continued.

3. Mental Disease — Temporary

Care and Treatment — Certifi-
cate of Phj^sician — Oath —
Natural Guardian . . . 289

Under St. 1909, c. 504, § 44, providing for
the temporary care, treatment and observation
at the McLean Hospital of any person suffering
from mental disease, "on the written applica-
tion of his natural or legal guardian . . . ,
together with the certificate of a physician
qualified as provided in section thirty-two, that
such temporary care is necessary by reason of
mental disease," the physician must set forth,
under oath, the same qualifications as those
required under section 32.

The term "natural guardian," as used in
section 44 of chapter 504 of the Statutes of 1909,
includes the father, and, upon the death of the
father, the mother until she remarries.

Liability of Commonwealth for Act

of, released on Parole . . 151

See Constitutional Law. 1.

Removal from the Commonwealth —

Settlement . . . .207

See Pauper. 6.

Keeper of Hospital for Insane and

Feeble-minded — Suitable Per-
son — Resident or Consulting
Physician .... 359

See License. 2.

Exemption from Taxation of Land

acquired by Institution incor-
porated for Care of Insane . 384
See Constitutional Law. 15.

Keeper of Hospital for Insane and

Feeble-minded Persons — Suit-
able Person — Partnership . 563
See License. 4.

INSPECTION — Of Buildings.
See Buildings.

Of Buildings — Inspection Depart-
ment of District Police — Sanita-
tion and Ventilation . . 192
See Buildings. 1.

Plans — Accommodations for Ten or

More Employees above Second

Story 231

See Buildings. 2.

Of Records of Public or Incorporated

Hospitals . . . .581

See Public Records. 4.

Of Steam Boilers by Insurance Com-
panies — Certificate . . 585
See Insurance. 9.

INSPECTOR — Veterinary and Medical

Veterinary .... 368

See Civil Service. 9.

INSPECTOR OF FACTORIES AND
PUBLIC BUILDINGS — In-
spection of Buildings — Plans —
Establishment — Accommoda-
tions for Ten or More Employees
above Second Story . . .231

See Buildings. 2.

Certificate — Intoxicating Liquors —

Hotel

See License. 1.

319

INSPECTORS OF HEALTH — Right

to enter Schools . . . 196

See Boards of Health.

INSPECTORS OF SLAUGHTERING 575

»See Civil Service. 11.

INSTITUTIONS — Investigation of Ex-
penditures of . . . . 226
See Governor and Council. 1.

Investigation of Officers by Agents or

Experts employed by Governor . 403
See Governor. 4.

Persons employed to investigate

Statements or Estimates of —
Contract — Compensation . 441

See Governor. 6.

INSURANCE — Foreign Insurance Com-
pany — Tax upon Premiums —
Reciprocal Legislation . . 19

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

2. Marine Insurance — Automobile

— Loss by Collision . . .39

INDEX-DIGEST.

G33

INSURANCE — Continued.
caused by the collision of such automobile
with another object, or against liability for
damage caused thereby to other property.

3. Rebate — Commission on Policy

on Life of Officer or Agent of
Company . . . .47

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

4. Fire Insurance — Explosion . 70

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

5. Assessment Insurance — Foreign

Corporation ^ Change from As-
sessment to Old Line Business —
Valuation of Policies . . 82

A foreign insurance company admitted to
this Commonwealth under the provisions of
St. 1890, c. 421, an act relating to assessment
insurance, which transacted business therein
under the provisions of such statute until
June 9, 1899, when it was authorized to trans-
act the business of old line life insurance and
since such date has transacted such business,
is entitled to have its policies valued and to
have a reserve maintained thereon on the basis
of renewable term insurance, in accordance
with R. L., c. 118, § 11, cl. 4, par. 2.

6. Investment of Funds — Secured

Loans — Mortgages. ._^ ■ .\.^^

Under the provisions of St. 1907, c. 576,
§ 37, that the capital of any domestic insurance
company other than life, and three-fourths of
the reserve of any domestic stock or mutual
life insurance company, shall be invested as
therein prescribed, a domestic life insurance
company may invest its funds in loans secured
by assessable stock of any trust company or
bank; or in loans secured by stock, bonds
and other collateral, whether or not such col-
lateral is designated in St. 1907, c. 576, § 37,
clauses 1 to 5, inclusive; or in loans upon
mortgages of real estate to an amount exceed-
ing 60 per cent, of the fair market value of the
property mortgaged at the time of such loan.

INSURANCE — Coutinued.

"• Officer or Director of Iii.><uratir(>

Company — Investment nf run.;. 171
. By R. L.. c. lis. § -2-,, relutii,-
in.surancc companies, it is pr<>\ 1
officer of the company, and no j..
eonmiittee thereof, charucd with the uuty of
investing its funds, shall borrow tl)<« -r!!.!.- or
be directly or indirectly liable for. ■ .,,i

of, loans thereof to others;" un.i ,f

such an insurance company wlio , ,.

ber of the finance comniiitce th ,»

such provision by renewing a n n

or by giving a new loan to tru~' il

estate trust of which .such din-i • ||

a trustee and a sharehi>lder. thi 10

the trust estate being in the tnisi.-,-, a.-id the
equitable title thereto in such ix-rsonj! an arc
for the time being shareholders.

8. Corporation — Transaction of In-
surance Business — Place of C(jn-
tract — Jurisdiction . . . 222

A Massachusetts corporation maintnininK a
department store, which, in combination with
certain other corporations, persons and co-
partnerships within and beyond the C'onmion-
wealth, has given to a resident in the St:itc of
New York a power of attorney to niakf con-
tracts of insurance in its behalf with cadi of
such other corporations, persons and co-part-
nerships in which all of the other coriX)rati<)n!i,
persons and co-part ner.ships bear a pro|)ort ion-
ate and distinct liability, is trnn«H''tiri',' the
business of insurance within tin- .f

St. 1907, c. 576, § 3. which pn. :i

contract of insurance is an agrccn h

one party for a consideration pr' v

money or its equivalent or to do a: i'-

to the assured upon the (lestnn ii-... ■ .-- ..r
injury of something in which the other p:irty
has an interest. ..." If. however, --u'': '•■>i>-
tracts are made in the State of N' '1 'd

no act in connection therewith 1 11

this Commonwealth, such corp-ji ^ . - •!
engaged in the business of insurance wiihiti the
Commonwealth.

9. Steam Boilers — In.spection by In-
surance Companies — Ccrtinoato .Vili
Under the proWsions of St. 1(M)7. c. 46.'>. | 17.
as amended by St. 1912, c. 5.11. i 7. that •"in-
surance companies engaK*'*! '» *'''' ' '^

inspecting and insuring steam ■ I.
after each internal and exteri;
if the boiler and its appe: ' >
the rules fornuilato<l by tl r
Rules, and if they deem thi '<•
working condition otherwise, iiwue u <«riiiu«to
of inspection . ..." it is thn duty of nii in-
surance company making -'■ ' "' "' '"

issue a certificate upon each it

regard to the purpose- for \^ :
tiou is made.

Approval of Form of Pfiliry — Es-

ercise of Legislative Power . 210

Sec C0.V8TITIT10NAL Law. 4.

634

INDEX-DIGEST.

INSURANCE COMMISSIONER — Ap-
proval of Policy — Exercise of
Legislative Power . . . 219

See Constitutional Law. 4.

INTOXICATING LIQUORS — Inn-
holder — "Open" or "Public Bar" 6

An "open" or "public bar" is a bar or
counter kept and maintained principally if
not exclusively for the sale of intoxicating
liquors under any one of the first three classes
of licenses enumerated in R. L., c. 100, § 18,
to be drunk at such bar or counter when fur-
nished, such bar or counter being open to the
public, so that all persons not excepted by the
provisions of R. L., c. 100, § 17, cl. 4, may have
access thereto, and may obtain liquor for
immediate consumption.

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

2. License — Licensed Place — Li-
censed Premises . . . 390

In R. L., c. 100, § 13, as amended by St.
1910, c. 476, § 1, providing in part that "in
cities and towns which vote to authorize
the sale of intoxicating liquors, the number of
places licensed for the sale of such liquors shall
not exceed one for each one thousand of the
population," and that "Nowhere in the com-
monwealth shall a fourth or fifth class license
be granted to be exercised upon the same
premises with a license of any of the first
three classes" with certain exceptions therein
stated, the words "licensed places" must
be construed to mean places where a license
is to be exercised, and such places are identical
with licensed premises, except where two or
more licenses are granted to the same person
to be exercised upon the same premises.

A proposed bill providing that a licensed
place "may consist of one or more rooms or
premises adjoining but having no interior
connection or means of communication with
each other," would directly affect the provi-
sions of R. L., c. 100, § 13, as amended by
St. 1910, c. 476, § 1, for the reason that under
its provisions a license of the fourth or fifth
class might be exercised with a license of any
of the first three classes at a single licensed
place, although in a room or rooms physically
separated from those in which was exercised
any license of the first three classes.

Sale by Registered Pharmacist —

Certificate . . . .50

See Registered Pharmacist. 2.

■ Vendor of — Civil Service
See Civil Service. 1.

105

Money received from Fees for grant-
ing Licenses for the Sale of —
Maintenance of Independent In-
dustrial Schools . . . 315
See Schools. 4.

INTOXICATING LIQUORS — Cora-

tinued.

Hotel — Certificate of Inspector of

Factories and Public Buildings 319
See License. 1.

Vendor of — Druggists' Sixth-class

License ..... 461
See Civil Service. 10.

INVESTIGATION — Of Expenditures of

Departments and Institutions . 226
See Governor and Council. 1 .

Of Officers — Departments or In-
stitutions — By Agents or Ex-
perts employed by Governor . 403
See Governor. 4.

Of Statements or Estimates of

Officers, Departments or In-
stitutions — Compensation of
Persons employed . . . 441

See Governor. 6.

INVESTMENT — Board of, of Savings
Department of a Trust Company
— Member as Endorser on Note
for Money loaned by Corpora-
tion ..... 454
See Trust Company. 4.

INVESTMENTS — Savings Banks —
Bonds of Railroad Corporation
having no Completed Roadbed 43
>See Savings Banks. 1.

Of Funds of Insurance Company —

Secured Loans — Mortgages . 147
See Insurance. 6.

Funds of Insurance Company . 171

See Insurance. 7.

Of Savings Banks — Bonds, Coupon

Notes or Other Evidences of
Indebtedness of the New York,
New Haven & Hartford Railroad
Company . . . .183

See Savings Banks. 2.

Authorized, of Savings Banks —

Notes secured by a Mortgage of
Real Estate to a Trust Company 256
See Savings Banks. 3.

For Savings Banks — Bonds of

Street Railway Company —
Dividend Equal to Five Per Cent,
for Five Years — Returns in-
cluding Nine Months, ending
June 30, 1910 — Certification by
Board of Railroad Commissioners 338
See Savings Banks. 5.

Legal, for Savings Banks — Bonds of

Terminal Corporations . . 462

See Savings Banks. 6.

INDEX-DIGEST.

035

LABEL — Proprietary or Patent Medi-
cines — Fractional Part of Origi-
nal Package — Notice — Sale of
Proprietary or Patent Medicines
— Violation of Law — Prosecution ISO
See State Boahd of Health. 3.

Receptacle for Proprietary or Patent

Medicines or Food — Prepara-
tion containing Alcohol — State-
ment of Contents . . . 216
See Alcohol.

LABOR — Hours of — Insane Hospital —
Day's Work — Half-holiday —
Sunday Employment — Work by
the Hour — Appropriations . 61

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

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

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

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

2. State Officers or Boards — " Day's

Work" — Contract — Materials
or Supplies . • .• . • f^

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

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

3. Eight-hour Law — Domestic Serv-

ants — Holidays . ,. • „. -.off;

Under St. 1907, c. 269, amending St .1906

c. 517, and providing that no laborer, workman

LABOR — Continued.

or mechanic craiUoycd by or on ^-.f^h-ilf nf tho
Commonwealth or of nny couir .r

in any city or town whicli hiv> .!•

provisions of R. L.. c. 10(1, § ^ in;

requested or required to work more thun i-iRhi
hours in any one calendar Hay or muro tlmn
forty-eight hours in any u: ' in

cases of extraordinary < i -,

maids, or other domestic .•-• : r

requested or required to work in it

hours in any one calendar day ■ ii

forty-eight hours in any one w..„, ,.»..,. iii
cases of extraordinary emernoncy.

No workman, laborer or i-i'-chnni'- «»o em-
ployed may be requested ; ' " -n
eight hours in any one i-'^ ,'t
in cases where a Saturday h n,
in which case the hours of laUur ou uiUer work-
ing days may be increased to make a totiil of
forty-eight hours for the week's work.

Employees may arrange between thein^'lves
to substitute for each other in i.rr.vi'iiT;.- for
vacation periods; but they w.y r(«-

quested or required so to do by i : rs

if it results that such arrangei:. • i-s

more than eight hours' work by any oi tho
parties in any one day. ^

Where an employee at a St:i' "»-

pital, as a precautionary meas';: '-d

to remain and to sleep in a room "c

room of a patient or a dormitory, iho iinio
of sleep is not to be considered as tune on
duty.

4. Employment of Children — Child

under Fourteen Years of Anc —

Certificate of Ability to read and

write — Factor>' or Workshop . 1(7

Under the provisions of R. L., o. HM5. J 28.

as amended by St. 100.5. c 267. § 1. *h^^ . uo

child under the age of fourteen "o

child who is over fourteen an<l ■■"

years of age who docs not ha.' 'W

as required by the foliowint? l.,ur »<*. twrw

certifying to the child's ability to r.-nd at wuhl

and to write legibly simi ' ' ■•'no

English language shall I "V

factory, workshop or m '•"

ment," no school committee ur ■ ■>«■

of schools or other person is '»

issue to a child under fourt "o

certificate above rcfcrrci '•"

may not at any time lie 1 1. >

or workshop.

= Mercantile E.stablishment — Em-
ployment of Women — Manager
of Department _ , ■

St. 1909, c. 514, § 47, v

" no child and no woman

laboring in a mercantil/-

than fiftv-eight hours ii.

prohibit the employment i

of a woman as the i:

ment, entrusted wi;

vision of numerous ; »,,.,,„• . s j

and whose duties require ibc . \' r. i < > j

269

'hal

:,ot
.Ht

.rt-

. 'T-

in,

udit-

636

INDEX-DIGEST.

LABOR — Continued.

ment and discretion, and do not necessarily
involve either manual labor or labor performed
within fixed hours.

6. Vacations — Persons employed at

State House — Governor — Gov-
ernor and Council . . . 413
Neither the Governor nor the Governor and

Council have any power to determine the hours

of labor or the length of vacations for persons

employed at the State House.

7. Dumping Inspectors — Civil En-
gineer ..... 420

Dumping inspectors employed by the Board
of Harijor and Land Commissioners, whose
duty it is "to see that all material which is to
be dumped in tidewater is transported and
dumped in its proper locality, none of it being
deposited in any other place," are not "work-
men, laborers or mechanics" within the mean-
ing of St. 1911, c. 494, § 1, providing that "the
service of all laborers, workmen and mechanics
now or hereafter employed by the common-
wealth ... is hereby restricted to eight hours
in any one calendar day."

The further provision of such section that
"engineers shall be regarded as mechanics
within the meaning of this act" does not extend
to or include persons who follow the profession
of civil engineering.

8. Cities and Towns — Acceptance of

Statute ..... 567
St. 1911, c. 494, providing in section 1 that
"the service of all laborers, workmen and
mechanics, now or hereafter employed . . .
by any city or town which has accepted the
provisions of section twenty of chapter one
hundred and six of the Revised Laws, or of
section forty-two of chapter five hundred and
fourteen of the acts of the year nineteen hun-
dred and nine, ... is hereby restricted to
eight hours in any one calendar day," is not
in force in cities and towns which have not
accepted the provisions of R. L., c. 106, § 20,
or of St. 1909, c. 514, § 42, but which had
accepted the provisions of St. 1899, c. 344, a
corresponding provision of an earlier law.

LABOR LAWS — Mercantile or Manu-
facturing Establishment — Res-
taurant — Establishment main-
taining Lunch Room and Food
Salesroom .... 455

An establishment which maintains a lunch
room, and also a food salesroom from which
supplies are sent to other lunch rooms main-
tained by the same establishment at other
places and lunches are sent to be served at
certain high, Latin and normal schools, the
receipts of such food salesroom being a little
over one-eighth of the total receipts, is not,
by reason of the maintenance of such food
salesroom, excluded from the definition of
"mercantile establishment" in St. 1909, c.

LABOR LAWS — Continued.
514, § 17, that such establishment "shall
mean any premises used for the purposes of
trade in the purchase or sale of any goods or
merchandise, and any premises used for the
purposes of a restaurant or for publicly pro-
viding and serving meals," and is not. therefore,
a "manufacturing establishment," defined by
the same section as "any premises, room or
place used for the purpose of making, altering,
repairing, ornamenting, finishing or adapting
for sale any article or part of an article."

LAND — Sale of, to Institutions, by

Trustees at Profit . . .308

See Massachusetts Agricul-
tural College. 1.

Purchased by Trustees of Lyman

and Industrial Schools from In-
come of Lyman Fund — Title . 452
See Lyman and Industrial
Schools.

LAUNCH — Pursuit of Wild Fowl
.See Fisheries and Game.

189

LECHMERE CANAL — Authority of
Metropolitan Park Commission
to widen and deepen . . 429

See Metropolitan Park Com-
mission. 4.

LEGISLATION — Preparation of Draft

by Attorney-General . .111

<See Attorney-General. 1.

LEGISLATIVE COUNSEL AND
AGENTS — Returns — Com-
pensation ' . . . . 469

The provision of R. L., c. 3, § 24, requiring
the keeping of a docket for the entry of the
names of legislative counsel and agents, that
"such entries shall include the name and
business address of the employer, the name,
residence and occupation of the person em-
ployed, the date of the employment or agree-
ment therefor, the duration of the employ-
ment, . . . and the special subjects of legis-
lation, if any, to which the employment
relates," is satisfied by an entry that a person
is so employed "on all matters of interest to
the employer," unless the employment is for
some special subject of legislation.

The provision of R. L., c. 3, § 24, above
quoted, and the further provision of section 30,
that an employer "shall render to the secre-
tary of the commonwealth a complete and
detailed statement, under oath, of all expenses
incurred or paid in connection with the em-
ployment of legislative counsel or agents, or
with promoting or opposing legislation," are
not complied with by a statement that a per-
son is employed as legislative counsel upon an
annual salary without a statement either of the
amount of such salary or of a fair apportion-
ment thereof.

INDEX-DIGEST.

G37

LEGISLATURE — EliKibility of Member
for Other Office — Examiner of
Private Bankers . . .118

A member of the Legislature for the session
of 1907 is ineligible for appointment to the
position of examiner of persons, partnerships,
associations or corporations engaged in private
banking, created by St. 1907, c. 377, § 4.

Right to determine Height of Water

to be maintained in a Great

Pond 273

See Constitutional Law. 6.

LETTER CARRIERS — Free Trans-
portation on Street Railways —
Constitutional Law . . . 388

<See Street Railways. 2.

LICENSE — Intoxicating Liquors — Li-
censed Premises — Certificate of
Inspector of Factories and Public
Buildings — Hotel — Lodging
House — Ten or More Rooms
above the Second Story . .319

The provisions of R. L., c. 104, § 49, requiring
that the certificate of an inspector of factories
and public buildings shall be obtained before
an innholder's license or a license to sell in-
toxicating liquors may be granted for any
premises, is not applicable, under R. L., c. 104,
§ 25, as amended by St. 1905, c. 347, and St.
1907, c. 503, § 1, to a hotel in which not more
than ten persons lodge or reside above the
second story.

In section 33 of chapter 104 of the Revised
Laws, providing in part that "the owner,
lessee, proprietor or manager of a hotel, which
is not otherwise suitably provided with fire
escapes, or a lodging house which contains ten
or more rooms above the second story, shall
place ... a knotted rope . . . for use as a
fire escape in every room of said hotel or
lodging house used as a lodging room, except
rooms on the ground floor," the words "which
contains ten or more rooms above the second
story" apply to and describe a lodging house,
and have no reference to the word "hotel" in
said section.

2. Keeper of Hospital for Care of

Insane and Feeble-minded —
Suitable Person — Resident or
Consulting Physician . . 359

Under the provisions of St. 1909, c. 504, § 24,
that " the governor and council may, upon the
recommendation of the state board of insanity,
license any suitable person to establish and
keep a hospital or private house for the care
and treatment of the insane, epileptic, feeble-
minded, and persons addicted to the intem-
perate use of narcotics and stimulants," a
physician who is employed by the owner or
owners of such hospital or private house as
resident physician in charge, or who is on the
staff of consulting physicians connected there^
with, is not a suitable person to receive such
license.

LICENSE — Conlimied.

3- Steam Boiler or Kiij;iiif — Owiicror

User — OpiTutioii — InlicciuttHl
Person — ( 'o;il Shovelers . . 524

The provi.-^ion of U. L., c. 102. j h an
amended by St. 1907, c. 373, § 1. ;;!,.l >t i-m,
c. 562, § 1, that "the owner or n .\\\

boiler or engine . . . shall i.. ..r

cause to be operated a steam I.
for a period of more than on-
the person in charge of and opcr,.
licensed," allows such owner or u.m r, m thu
exercise of good faith and in an uniivoidiiblf
emergency, a period of one week witliin which
to procure a person licensed in accordimce
with the requirements of law; and V>y th<- u»o
of such period, tlio owner or u.-' ■ ' ■ ro-

after forever prohiliited from :.■ -.-If

under like conditions of such i\\\

The provision of R. L., c. 1U_', J >0, tm
amended by St. 1911, c. 562, § 2, that •"to
work with a licensed person then- may lie
employed not more than one unliccnswd jmt-
son, who, in the presence and under the
personal direction of the licen.sed person, may
operate the appurtenances of a lM)ilcr or
engine," does not require that coal shoveler.-*,
whose sole duty consists in putting coal under
the boiler, should be licensed, 8inr<* coal
shovelers, or other persons )•'' the

duties of mere laborers in haii'. . -'-d

in the operation of a boiler or i- not

operating any appurtenances thercot.

4. Keeper of Hospitid for Insane or

Feeble-minded — Suitable Per-
son— Partnership . 563
Under the provisions of St. 1909, c. 504, } 24.
that "the governor and council may, ii[»on
the recommendation of the state lK»»rd of
insanitv, license any .suitable person to es-
tablish" and keep a hospit.al or privMf houHc
for the care and treatment > ■' no,
epileptic, feeble-minded, and p' '•<i
to the intemperate use of narc • nu-
lants," a license may not be Krantitl lo a
partnership as such.

5. To operate Automobile — Revoca-
tion — Conviction — JudRment
of Guilty placed on File . 570

The Massachu.sptts Highway f'omniKwion.
under the provisions of St. I'.M)'' ' * -2.

that "a conviction of a vioiatioi. ■"»

shall be reported forthwith b "r

trial justice to the conm •''

revoke immediately the li •'

so convicted," is warrant*<l ... .. .. ...^ -- • - '•"

ment of guilty placed on file by the tnai coUfl
as a conviction.

Innholder — "OiM?n" or "PubUc

Bar" • ■ ■ ^

See Intoxicating Liquorb. 1.

For Fi.sh Trap maintainwi in Tide

Water

Sec Tide Water.

638

INDEX-DIGEST.

LICENSE — Continued.

For Sale of Intoxicating Liquor —

Fees — Maintenance of Inde-
pendent Industrial Schools . 315
See Schools. 4.

Use of Public Highways for Comfner-
cial or Advertising Purposes
See CoNSTiTUTiONAii Law. 14.

583

Licensed Place for Sale of Intoxicat-
ing Liquors — Licensed Premises 390
See Intoxicating Liquors. 2.

Sixth-class — Druggist . . . 461

See Civil Service. 10.

LIFE INSURANCE.

See Insurance.

LOAN — By Trust Company to Single

Individual . . . .69

See Trust Company. 1.

LOCATIONS — For Telegraph, Tele-
phone and Electric Light Poles
on State Highway . . .59

See State Highway. 1.

Alteration of, of State Highway
ASee State Highway. 2.

113

LODGING HOUSE — Ten or More
Rooms above the Second Story

— Hotel 319

See License. 1.

LOTTERY — Element of Chance — Vot-
ing Contest .... 582
An arrangement or contract entered into by
a foreign corporation dealing in ponies, with
certain merchants and managers of theatres
within the Commonwealth, by which each such
merchant or manager contracting with the
pony company issues to every customer for
each 25 cents received 25 votes, which may be
cast by the bearer in favor of any contestant
in a contest in which the person receiving the
highest number of votes is entitled to a pony
and outfit from such company, involves no
element of chance, and therefore does not
constitute a lottery within the meaning of the
several sections of R. L., c. 214, which prohibit
lotteries within the Commonwealth.

LYMAN AND INDUSTRIAL SCHOOLS

— Trustees — Lyman Fund —
Income — Purchase of Land —
Title 452

Under the provisions of St. 1911, c. 566,
§ 3, that the Trustees of the Massachusetts
Training Schools "succeed to the trusts, right,
powers and duties" of the trustees of the
Lyman and Industrial Schools, and of R. L.,
c. 86, § 1, that the board of trustees of the
Lyman and Industrial Schools should be "a
corporation for the purpose of taking, hold-
ing and investing in trust for the common-

LYMAN AND INDUSTRIAL SCHOOLS

— Co7itinued.
wealth any grant, devLse, gift or bequest
made for the use of any institution of which
they are trustees,"' the trustees of the Massa-
chusetts Training Schools may purchase, from
the accumulated income from the Lyman Fund
and Lyman Trust Fund, so called, land for the
use of the Lyman School.

The title to the land so purchased should be
taken in the name of the trustees, in trust for
the Commonwealth.

Without express or implied authority from
the Legislature, title to land cannot be taken
in the name of the Commonwealth by any
public officer or board.

LYMAN FUND 452

See Lyman and Industri.\l
Schools.

MANDAMUS — Writ of — Public Char-
itable Trust — Technical Ques-
tion — Use of Name of Attorney-
General ..... 588
See Attorney-General. 5.

MANUFACTURING ESTABLISH-
MENT — Establishment main-
taining Lunch Room and Food
Salesroom .... 455

See Labor Laws.

MARLBOROUGH, CITY OF — City
Charter — Superintendent of
Streets — Appointment . . 593

See Attorney-General. 6.

MARRIAGE — Notice of Intention of —

Entry — Oertificate . . . 467

See Notice.

MARRIED WOMAN — Wife of Princi-
pal as Surety on Official Bond . 260
See Bond.

MASSACHUSETTS AGRICULTURAL
COLLEGE — State Institution
— Trustees — Sale of Land to
Institution at a Profit _ . . 308

To be a State institution implies that the
institution, and the work it carries on, is
directly under the control of the Common-
wealth; that its officers are the agents of the
Commonwealth, and that its property is the
property of the Commonwealth;- and the Mas-
sachusetts Agricultural College at Amherst, a
public charitable corporation organized under
the provisions of St. 1863, c. 220, for educa-
tional purposes, and having a distinct corporate
existence, does not answer these requirements,
and is not, strictly speaking, a State institution.
The trustees of the Massachusetts Agri-
cultural College may not legally, as individuals,
purchase land and later sell it to such institu-
tion at an increased cost over the original price.

INDEX-DIGEST.

039

MASSACHUSETTS AGRICULTURAL
COLLEGE — Continued.

2. Employees of Commonwealth —

Retirement — Teachers and Em-
ploj^ccs ..... 460
The Massachusetts Agricultural College is a
public charitable corporation organized for
educational purposes, and is not, strictly speak-
ing, a State institution, and its teachers and
employees are not eligible to participate in the
retirement system established by St. 1911,
c. 532, for employees of the Commonwealth.

MASSACHUSETTS DISTRICT PO-
LICE — Chief — Boiler Inspec-
tion Department — Chief Inspec-
tor 492

St. 1906, c. 521, entitled "An Act to prov-ide
for the appointment of a chief inspector of the
boiler inspection department of the District
Police," which pro\-ides in section 1, in part,
that "said chief inspector shall have super-
vision over the members of said boiler inspec-
tion department in order to secure the uniform
enforcement throughout the commonwealth of
all acts relative to the inspection of boilers and
the examination of engineers and firemen,"
does not create an independent department,
and the action of such chief inspector is under
the jurisdiction and subject to the orders of the
Chief of the District Police.

MASSACHUSETTS HIGHWAY COM-
MISSION — Motor Vehicles
owned by United States Govern-
ment — Certificate of Registra-
tion — Fees .... 318
Under St. 1909, c. 534, which in section 2
requires the registration of motor vehicles, and
in section 29 fixes the fees to be collected
therefor, with the further pro^dsion that the
Massachusetts Highway Commission "may
issue certificates of registration for motor
vehicles and licenses to operate the same to
any member of the foreign diplomatic corps
without the payment of the fees therefor,"
such commission is not authorized to issue a
certificate of registration without the payment
of fees for motor vehicles owned by the govern-
ment of the United States.

Original Location for Poles in State

Highway . . • .59

See State Highway. 1.

Automobiles — Posting Special

Regulations of Cities and Towns
— Sign Boards - • .78

See Automobiles. 2.

MASSACHUSETTS HOSPITAL FOR
FEEBLE-MINDED — Cities or
Towns — LiabiUty for Support
of Settled Inmates — Notice . 57
R. L., c. 85, § 20, providing that "a city or

town in which an inmate of the state hospital

is found to have a legal settlement shaU be.

liable to the commonwealth in like manner

MASSACHUSETTS HOSPITAL FOR
FEEBLE-MINDED -r,,:f „,<.,/.

as one town i.^ hal>lc to iiimihir i:, !;' . . .■•■-,"
does not limit the lialiility ■
town to a period of three nioir

ing the date of notice, aa is ih

towns under R. L., c. 81, § 17, and ouch
liability is not affected by want of notice.

MASSACHUSETTS STATE SANA-
TORIUM — Application —
Preference of Citizens . 90

Under the provision of St. 1907, c. 222, t 1.

that "preference shall be given U> ''
plicants who are citizens of the '
wealth," the trustees of the .Ma-
State Sanatorium are authorized t.j mvu
precedence in cases of tuberculosis: first, to

incipient cases of citizens; second, t" •■'' !

cases of citizens; third, to incip
where the applicants are not citi,
fourth, to advanced cases where the iii'ihrniin
are not citizens.

MASTER IN CHANCERY — Removal

from County — Vacancy — Ap-
pointment .ISO
See Governor. 3.

MATERIALS AND SUPPLIES —

Hours of Lalior — Stati- Con-
tracts . .73
See Labor. 2.

MAYOR — Duty in Case of Riot or
Other Disturbance of the Public
Peace — Miliiia — Precept —
Discretion .... 515

See Riot.

MEASURES 51

Sfc Weights .\sn Mkssikes.

MEMBER OF LEGISLATURE —

Eligibility for Other Otfico . 118

Sec LEGI3I.u\TfKE.

MERCANTILE ESTABLISHMENT -

Prfnii.->cs of Tilf«r:ii>li ' m.;. >;.
Premises maintained by a
pany do not constitute n mT.
ment within the pr
§ 17, that " 'incrr:
mean any preniisi -
trade in the purchu.-i- oi
merchandise, and any i
purposes of a re^tauriim
viding and serving mcal-

Emi)lovnient of Wonini - ii'.iir- <•.

Lai)or — .Manager of Dcpiirt-

ilJ

menl

Sec Labor.

269

•Eh!

maintnining Lunch
I'«H)d SalcB-oom . «0
Laws.

640

INDEX-DIGEST.

METROPOLITAN PARK COMMIS-
SION — Rules and Regulations
for the Use of the Charles River 14
The Metropolitan Park Commission may,
regardless of the ownership of the soil beneath
the stream, enact and enforce rules and regula-
tions governing the public use of the Charles
River at any point within the metropolitan
parks district, provided that such rules and
regulations are not repugnant to the power of
Congress to regulate commerce, and are not
in conflict with the authority to supervise
tide waters, vested by R. L., c. 96, § 8, in the
Board of Harbor and Land Commissioners.

2. Rules and Regulations — Road-
ways — Violation of Rules and
Regulations — Arrest — Warrant 96

The authority of the Metropolitan Park
Commission, under St. 1893, c. 407, § 4, and
St. 1894, c. 288, § 3, to make rules and regula-
tions for the government and use of open
spaces, lands, rights and easements or interests
in land, is the same whether such lands or
rights, easements or interests in land to which
such rules are applicable were acquired and
are controlled by such commission under St.
1893, c. 407, § 6, or St. 1896, c. 465, § 2.

The term "roadways," as used in St. 1894,
c. 288, § 3, includes roadways under the care
of the Metropolitan Park Commission, con-
structed upon lands acquired under St. 1893,
c. 407, §§4 and 6.

A police officer appointed by the Metropoli-
tan Park Commission may arrest without war-
rant any person who violates in his presence
any rule or regulation duly made by such
commission by authority of St. 1894, c. 288;
and may arrest without warrant any person
who violates in his presence any rule or regula-
tion duly made by such commission by au-
thority of St. 1903, c. 407, whenever such
violation involves acts which are in fact
breaches of the public peace.

3. Rules and Regulations for Govern-
ment of Police Force — Punish-
ment of Breach of Regulations by
Forfeiture of Pay — Transfer —
Civil Service — Veteran —
Waiver by Officer of Benefit of
Civil Service Rules . . .165

The Metropolitan Park Commission under
existing provisions of law has authority to
establish rules for the government of its police
force, and under such rules to punish a police
officer, who has committed an offense, by a
forfeiture of pay for a period not exceeding
thirty days; or to transfer a police officer who
is a veteran from a reservation or parkway in
one city or town to a reservation or parkway
in another city or town within the jurisdiction
of such commission.

The authority of the Metropolitan Park
Commission in the premises is not limited by
St. 1904, c. 314, § 1, which provides that
persons holding office or employment in the

METROPOLITAN PARK COMMIS-
SION — Continued.
public service of the Commonwealth, classified
under the civil service rules, "shall hold such
office or employment and shall not be removed
therefrom, lowered in rank or compensation,
or suspended, or, without his consent, trans-
ferred from such office or employment to any
other except for just cause and for reasons
specifically given in writing;" or by St. 1905,
c. 150, § 1, and R. L., c. 19, § 23, which extends
a like protection to veterans in the public
service of the Commonwealth.

An agreement signed by a police officer upon
entering the service of the Metropolitan Park
Commission, to the effect that he will obey
and be bound by such rules and regulations
as are or may be from time to time adopted by
such commission, would not constitute a waiver
by such officer of any rights under the statutes
above quoted; and such agreement is material
only as evidence that at the time of entering
the ser\'ice of such commission the subscriber
was aware of the rules and regulations then
in force.

4. Charles River Basin — Lechmere

Canal — Authority to widen and
deepen ..... 429
The Metropolitan Park Commission, under
the provisions of St. 1903, c. 465, which in
section 4 required the Charles River Basin
Commission to "dredge navigable channels in
the basin" and to "dredge Lechmere canal to
such depths as will afTord to and at the wharves
thereon not less than seventeen feet of water
up to and including Sawyer's lumber wharf, and
not less than thirteen feet of water from said
wharf to the head of the canal at Bent street,"
and of St. 1909, c. 524, § 1, by which such
commission succeeded to "all the powers,
rights, duties and liabilities" of the Charles
River Basin Commission, has authority to
widen a part of Lechmere Canal, to reinforce
the adjoining land by piling and to dredge the
part of the canal so widened to the depth
prescribed in said chapter 465.

MILITIA — Armories — Use for Public
Purposes — Rallies of Political
Parties and Meetings for the
Discussion of Public Questions . 344
Under the provision of St. 1908, c. 604,
§ 140, that "armories . . . shall not be used
except by the organized militia for such mili-
tary purpose or purposes incidental thereto as
may be designated by the commander-in-
chief: provided, however, that the commander-
in-chief, upon terms and conditions to be
prescribed by him and upon an application
approved by the military custodian of an
armory . . . may allow the temporary use of
such armory for public purposes," an armory
may be used for rallies of political parties or
meetings for the discussion of questions of
.public policy which are of interest or benefit
to the community at large.

INDEX-DIGEST.

r.n

MILITIA — Continued.
2. Armory Commission — Construc-
tion of Armories . . 358
The duty of the armory commission, under
the provision of St. 1908, c. 604, § 133, as
amended by St. 1909, c. 323, § 1, that "if
in their judgment the needs of the service
demand it, subject to the approval of the
commander-in-chief, . . . shall construct ar-
mories, not exceeding three yearly, until the
volunteer militia shall be provided with ade-
quate quarters," is to construct armories until
the volunteer militia are provided ^^^th ade-
quate quarters, subject to the limitation that
there shall not be under construction in any
one year more than three such armories.

Right of Sheriff to call upon, in Case

of Actual Tumult, Riot or Mob . 488
See Sheriff.

Precept requiring Appearance of, in

Time of Riot — Duty of Sheriff,
Mayor or Selectmen — Discre-
tion ..... 515
See Riot.

Term of Office of Adjutant General

— Constitutional Law . . 546

See Adjutant General.

MINOR — Adoption — Discharged by
State Board of Charity — Re-
ligious Faith . . .124
See State Board of Charity.

Employment in
Textile Goods .
See Textile Goods

Manufacture of

126

MISTAKE — Of Fact or Law — Repay-
ment of Money paid under —
Moral Obligation — Public Pur-
pose ..... 503
See Constitutional L.^w. 21.

MONOPOLIES — Public Policy — Leg-
islature ..... 425
See Attorney-General. 3.

MORTGAGE — On Real E.state —
Taxation of Domestic Corpora-
tion — Deductions . . . 335
See Taxation. 8.

On Real Estate — Taxation — Bonds

of Domestic Electric Corporation
secured by Mortgage on Real
Estate and Personal Property —
Exemption . . • .431

See Tax,\tion. 10.

MOTOR VEHICLES — Owned by

United States Government — ^
Registration — Fees . .318

See Massachusetts Highway
Commission.

MUSEUM OP PINE ARTS - \|-

propri;iti()ii fur M-di.-y r;ii«.Nl

by Taxation for aj^o

See Constitutional Law. 13.

NAME — Of Corporation rontnininK the

Words "Bank" or "BunkinR" 250
Sec Cohporation. 3.

NATIONAL BANK — Savings Bank —
ConiiiMtinK Offices — Elevator
or Dunilj-waiter . . . 204

See Savings Banks. 4.

Tax on Deposits — Constitutional

Law 409

See Tax-^tion. 9.

" NATURAL GUARDIAN "

See Ins.vne Perso.n. 3.

NATURALIZATION — Foes

S( e ( LKHKS of Court.

289

100

NEW ENGLAND COTTON YARN
COMPANY — Ta\:iti.,ii —
Bonds in Excess of MurtguKud
Real Estate ' . . . .24

Sec T.\X.^.TION. 1.

NEW YORK, NEW HAVEN & HART-
FORD RAILROAD COM-
PANY—.'^i ret Railway C.ri...-
ration — Ownership and ("■in-
trol of Springfield Street Kailway
Company — Supreme Judiii;U
Court — Decree — Conipliaiiro 471
The action of the New York. Now Hiivon A
Hartford Railroad Company in divesting
itself of all interest in or control over the New
England Investment and Security (Oinpaiiy,
which, through tlie inslruinentidity of tlio
Springfield Railway Companies, (>wiii-<J and
controlled the Springfield >fr,.\ i: nlwav
Company, and by placing tie 'ion

street railway compMny in th- md

control of the New i ■ • '
Security Company,
are not coiuiected a

the New York, New llavxii A : • uJ-

road Company and have ei no

agreement, trust or other ui: win

said company, with re.s|x?ct t ■»

officers or trustees of the N< v I";

vestment and Security C'ompai.
in good faith, ennstitutes a <•
the decree of the Supreme '
dated June 23, 19l)S, which ct,. -'W

York, New Haven & Hartfonl m-

pany from .subscril)ing f«>r or tn^..., ■■ • -hK.
directly or in<lirectly. the stoek of the >pnng-
field Street R.ailway Company, .nnrl fr-.m .-w-
suming or exenising the franch <'t^

of subscribing for, taking or h- x^li

of such corporation.

642

INDEX-DIGEST.

NEW YORK, NEW HAVEN & HART-
FORD RAILROAD COM-
PANY — Continued.

Bonds, Coupon Notes or Other Evi-
dences of Indebtedness of — Au-
thorized Investments for Savings
Banks .....
^ee Savings Banks. 2.

183

Repayment to, of Money paid under

Mistake of Fact or Law —
Moral ObHgation . . . 503

See Constitutional Law. 21.

NOLO CONTENDERE — Violation of
Pharmacy Law — Conviction
and Fine . . . .72

See Pharmacy Law. 1.

Conviction — Case placed on File . 514

See Game Laws.

NOTE — In Payment of Money borrowed
in Anticipation of Taxes —
Limit of Authority to issue . 327
See Cities and Towns. 3.

Demand — Time of Payment —

Note payable to Town Treasurer 342
See Towns. 2.

For Money loaned by Trust Com-
pany, Member of Board of In-
vestment of Savangs Department
as Endorser .... 454
<See Trust Company. 4.

Payable "during the Year 1912" —

Date of Payment . . . 523

See Towns. 4.

Of Town — Certification — Director

of Bureau of Statistics — Vote to
authorize Selectmen to refund
Debt "upon the Passage of an
Act authorizing the Same" . 578
See Towns. 6.

NOTICE — Of Intention of Marriage —

Entry — Certificate . . . 467

Under the provision of R. L., c. 151, § 16, as
amended by St. 1911, c. 736, § 1, that "persons
who intend to be joined in marriage in this
commonwealth shall, not less than five days
before their marriage, cause notice of their
intention to be entered in the office of the
clerk or registrar of the city or town in which
they respectively dwell, or, if they do not dwell
within the commonwealth, in the office of the
clerk or registrar of the city or town in which
they propose to have the marriage solemnized,"
and the provision of R. L., c. 151, § 53, as
amended by St. 1911, c. 736, § 2, that "after
the expiration of five days from the date of the
entry of such intention the clerk or registrar
shall deliver to the parties a certificate . . . ,

NOTICE — Contimied.

specifying the time when notice of the inten-
tion of marriage was entered with him . . . , "
delivery of the certificate should not be made
until the expiration of five full days after the
date of entr>', excluding the daj^ of such de-
livery and Sundays and holidays.

County Commissioners — Contracts

for Construction of Public Works 9
5ee County Commissioners. 1.

Of Liability for Support of Settled

Inmates of Massachusetts Hos-
pital for Feeble-minded . . 57
See Massachusetts Hospital
FOR Feeble-minded.

Of Aid rendered State Pauper
Place of Settlement of Wife
See Pauper. 5.

145

Of Petition of Guardian of Insane

Person to sell Real Estate . 252

See Insane Person. 2.

NUISANCE — Abatement — Pending
Complaint to Local Board of
Health — Jurisdiction of State
Board of Health . . .85

iSee State Board of Health. 2.

OFFICE — Eligibility of Member of Leg-
islature for . . . .118
See Legislature.

Term of, of Adjutant General —

Constitutional Law . . . 546

See Adjutai^t General.

OFFICER — Of Insurance Company —
Commission on Policy on Life
of — Rebate . . . .47

See Insurance. 3.

CivU Service — Exemption — Clerk

of Chief of Police . . .158

jSee Civil Service. 3.

— Of Insurance Company — Invest-
ment of Funds . . . 171
»See Insurance. 7.

Administrative or Ministerial — In-
surance Commissioner — Ap-
proval of Policy — Exercise of
Legislative Power . . '. 219
See Constitutional Law. 4.

• Assessors — Term of Office
5ee Towns. 1.

Truant Officer — Woman
See Truant Officer.

337

444

INDEX-DIGEST.

i\\:i

OFFICERS — Of Institutions for Insane
— Disposition of Property of In-
mates ..... 132
<See Ins.vne Person". 1.

Of Westborough State Hospital —

Appointment and Compensation 313
See Westborough State Hos-

PIT.\.L.

■ Appointment subject to Confirmation

by City Council — Constable . 325
See Civil Service. 8.

Investigation of, by Agents or Ex-
perts employed by Governor . 403
.See Governor. 4.

Administrative — Custody and Au-
thentication of Statute — Pre-
sumption of Lawful Passage . 415
.See Statute. 2.

Persons employed to investigate
Statements or Estimates of —
Contract — Compensation . 441

See Governor. 6.

•Of County, City or Town — Duty
in Case of Riot or Other Dis-
turbance of the Public Peace . 515
See Riot.

OFFICES — Executive, of Foreign Cor-
poration -Rathin the Common-
wealth — Usual Place of Business 255
See Foreign Corporation. 4.

National Bank or Trust Company

and Sa\-ings Bank — Elevator or
Duml>waiter .... 264
See Savings Banks. 4.

OPENING — In State Highway for Serv-
ice Pipes — Cities and Towns . 242
See St.^te Highway. 4.

OVERSEERS OF THE POOR — Con-
tagious Diseases — Temporary
Aid to Unsettled Paupers . .137

See Pauper. 4.

PARDON — Petition for Pardon — Ref-
erence to Executive Council . 5
.See Governor. 1.

PARTNERSHIP — Keeper of Hospital
for Insane and Feeble-minded
Persons — Suitable Person . 563

See License. 4.

PAUPER — Settlement — EfToot of Kp-
troactive Statute upon Deriva-
tive Si'ttloniciit
Where the derivati-
which was not full\
May 1, 18G0, and (ii.i ,,., ,.., .
quent acquisition of a scttk-nu-i.
place, was defeated and lost hy i ■
pro\-ision of R. L., c. 80. { fj. '
of a daughter derived from that
subsequent to May 1. 1^G0. i- ;. :
afifected by the loss of the settlemeat oi
mother.

the

2. Derivative Settlement — Retroac-
tive Statute . . . S4
A pauper born in 1830 who derived a m-tth-
ment from his father in 1^4X. whifh tw'--»n>«?
fixed when such paui" : ' ' i> -
quired a settlement .f
May, 1860. and sue!,

fore defeated and lost by il«c r- ►-

^^sion of R. L., c. 80, S 6, notwi' lo

fact that the settlement of thr i.itncr > unc
within the exception containetl in such statute,
and was not defeated thereby.

3. Settlement — .Assessment of Taxes 1 14

Under the provisions of R. L., c. hO, { 1.
cl. 5, providing that "A person of the aK<' of
twenty-one years who resides in any plare
within this Conunonwealth for five con."«ecutivc
years and within that tim'» pays all »into.
county, city or town taxi - ' ' ' ■•»

his poll or estate for an> <n

that time shall therein- a, ■■t

in such place," it is necessary ; it

the required taxes should Ix? ; -<>

that the assessments thereof slu...... .^ !o

within such period.

4. Contagious Diseases — Quarantine

— Teniporar>- .\id t<» rMs4ttlcd
Paupers — Cities and Townn —
Board of Health — Oversceru of
the Poor n7

If the family of an 1. c

from cont agious dise: v -

health, but not quar

reason that such fani I : a

themselves, and are, ;

city or town wherr ' '>

aid should l)e rcmhT'

poor under the provi.-; . -'.

the temporary aid law, .-m ..ul>it.«cl

to the re.<tri''tinn'' »h<T.-in .

If the 1. • ' ' - • -^n

expends n '^

of a persi": ■^■

and thcrefoft ,|uur.iii:;:;i i ■ •>

expense is incurred for th<- '"*

public health, and cannot • «"

from the city or town wli- i -^^

settled, or from thf" f'on "

persons have n<>

In neither oi *"• **

rendered paup* r.

644

INDEX-DIGEST.

PAUPER — Continued.

5. State Pauper — Aid rendered in

Place of Settlement of Wife —
City or Town — Reimbursement
by Commonwealth — Notice . 145
Where a town seeks reimbursement under
the provision of R. L., c. 85, § 16, that "if a
state pauper has a wife who is also a pauper
having a legal settlement in the commonwealth,
he shall be supported by the place where his
wife has her settlement, and the common-
wealth upon written notice to the state board
of charity within sixty days after aid is first
given to him shall reimburse such place," such
town must show that notice was given strictly in
accordance with the terms of the provision for
reimbursement; and a town is not entitled to
be reimbursed for expenses incurred for a period
of sixty days prior to the date of notice, when
more than sixty days have elapsed since aid
was first rendered.

6. Insane Person — Removal from

the Commonwealth — Settlement 207
The provision of R. L., c. 80, § 6, that "a
person who is absent from the commonwealth
for ten consecutive years shall lose his settle-
ment," is applicable to an insane person who
was removed to an asylum in another state
and there maintained for more than ten con-
secutive years.

PERSON — As not including Corporation 66
See Taxation. 2.

PHARMACY LAW — Plea of Nolo Con-
tendere — Conviction and Fine . 72
A plea of nolo contendere, followed by a fine
imposed by the court, is a conviction within
the meaning of R. L., c. 76, § 17, pro-viding
that the Board of Registration in Pharmacy
may suspend the license of a registered phar-
macist only "for a cause punishable by law,"
and "after his conviction by a court of com-
petent jurisdiction."

2. Conduct of Business — Attend-
ance of Registered Pharmacist . 92
R. L., c. 76, § 23, requires that an unregis-
tered member of a copartnership engaged in
the business of pharmacy, who compounds for
sale or dispenses for medicinal purposes drugs,
medicines, chemicals or poisons, shall do so
only under the personal supervision of a regis-
tered pharmacist.

PHYSICIAN — Certificate of — Tempo-
rary Care and Treatment of In-
sane Person .... 289
See Insane Person. 3.

Resident or Consulting — Keeper of

Hospital for Insane and Feeble-
minded ..... 359
See License. 2.

PIPES — Right of Town to open State

Highway, to lay . . . 242

See State Highway. 4.

PLAGE — Licensed . .390

See Intoxicating Liquors. 2.

PLANS — Approval of, by Inspector of
Factories and Public Buildings

— Establishment . . .231
See Buildings. 2.

POLICE — In City of Boston — Certifi-
cation of Pay Rolls . . . 164
See Civil Service Commission.

Metropolitan Park — Rules and Reg-
ulations ..... 165
See Metropolitan Park Com-
mission. 3.

POLICE OFFICER — Rules and Regu-
lations of Metropolitan Park
Commission — Violation — Ar-
rest without Warrant . . 96
See Metropolitan Park Com-
mission. 2.

POLICE POWER.

See Constitutional Law.

PORTLAND TERMINAL COMPANY

— Bonds — Legal Investment

for Savings Banks . . . 462

See Savings B.\nks. 6.

POWER BOAT — Pursuit of Wild Fowl 189
See Fisheries and G.^me.

PREMISES — Licensed

.See Intoxicating Liquors.

390

PRISON — Regulation of Sale of Goods,
Wares and Merchandise made
by Convict Labor in . . 495

iSee Constitutional Law. 20.

PROPERTY — Of Insane Inmates of
Public Institutions — Disposi-
tion 132

See Insane Person. 1.

PROPRIETARY OR PATENT MEDI-
CINES — Label .180
See State Board of Health. 3.

Containing Alcohol — Receptacle —

Statement of Contents . . 216

.See Alcohol.

PUBLIC ADMINISTRATOR — Prop-
erty of Insane Inmate of Public
Institution .... 132
See Insane Person. 1 .

INDEX-DIGEST.

(ii.l

PUBLIC CHARITABLE TRUST —

Administration of Trust Fund —
Mandamus — Use of Name of
Attorney-General . . . 58S

iSee Attorney-General. 5.

PUBLIC FUNDS — Expenditure for Re-
lief of Destitute Families of Strik-
ing Employees .... 486
.See Constitutional Law. 18.

PUBLIC OFFICER — Resignation —
Acceptance — Governor — Ex-
ecutive Council . . . 1
The resignation of a public officer, appointed,
with the advice and consent of the Council, by
the Governor, becomes effective upon accept-
ance by the Governor without further action
thereon by the Executive Council.

2. Investigation — Employment of

Counsel — Expense . . .29

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

3. Register of Deeds — Official Bond 182

A bond given by the register of deeds of a
county to the county commissioners thereof,
and running to such commissioners, does not
satisfy the requirement of R. L., c. 22, § 7,
that "each register shall give bond to the
county for the faithful performance of his
official duty, with such sureties and in such
sum as the commissioners or mayor [in the
county of Suffolk] respectively shall approve."

PUBLIC PARK — Change of Use —

Proprietary Rights . . . 406

See Constitutional Law. 16.

PUBLIC POLICY — Of Commonwealth
toward Monopolies — Determi-
nation — Legislature . . 425
See Attorney-General. 3.

PUBLIC PURPOSE — Rehef of Persons
out of Employment, by Construc-
tion of Highways in Times of In-
dustrial Distress . . . 305
See Constitutional Law. 10.

Use of Armory for
jSee Militia. 1.

344

■Public Highways — Erection of

Structures over Public Ways . 375
See Constitutional Law. 12.

Money raised by Taxation — Appro-
priation for the Benefit of the
Museum of Fine Arts . . 380

^ee Constitutional L.^w. 13.

PUBLIC PURPOSE — (\,uimu.:l.

Appropriiilioii <,f Pul^lic Fund* for

Relief i,l Dcstitulo Fuiuiliwj of
Striking Employeci . . 48(J

See Co.NSTITUTIO.VAL Law. 18.

Appropriation of Public Funds —

Moral Obligation — Ropiiyment
of Money paid under Mistake of
Fact or Law .... 503
See Constitutio.nal Law. 2L

Appropriation of Public Funds for

Homes for Mechanics, Laborers,

or Other Wage Earners . .521

See Constitutio.val Law. 22.

Appropriation of Public Funds for

Reclamation and Sale of Wet

Lands 538

See Constitutional Law. 25.

PUBLIC RECORDS — Returns of Com-

panii-.- (imaged i:; *' • '■' •

sion of Intelligcii 122

By St. 1906. c. 433, the \ 1 Ai-

way Commi.'^sion is requircl t- . lilo

the annual returns made by coin .-ed

in the transmission of intelligeui' - .-ity

within the Commonwealth, anil such n-turns
are therefore pubUc records, under R. L., c. 35,
§ 6, which defines public records to Ikj "anv
written or printed i)ook or paper . . . which
any officer or employee of the Commonwealth
. . . has received or is required to receive for
filing."

2. Letters and Report.s in Custody of

State Board of Health .136

Under the provi.sions of R. L., c. 35, { 5.
that "The words 'pul)lic records' shall . . .
mean any written or printed U>ok or \iti\>pt
... in or on which any entry hsis Ix-t-n niado
or is required to be made by l:iw. <>r which

any officer or employee of the <" • •■ illh

. . . has received <>r is require: :or

filing," reports and letters of r i<'h

are the result of invcstigati ' >to

Board of Health under v ^V

to make sanitary inve-stit;.. ■ '^*;

which are in the cu.-itody oi the .■^taic HounJ
of Health, arc not public record.-*, and therefore
are not open to public in.spection.

3. Letters and Memornndn roreiv»H|

by Civil ."■^ervicf ('onniiix^inn in
the Investigiitioii <•< Vi.r".i>i'<'«-«
to Office in thi* ( '
In the perforni;in<'<' of •

by St. 1909, c. 4sr., $ 10. t

Commission shall make :i

the qualification.s of a non.

city of Boston, und« r ■:

with the consent of i ■

establish, such coniin

limited capacity und" r t

section alone, and tluy :ir

the general i)ri>»i~i""s n !

•ho

'V,

il.
u>d

'•.tt
l.y

I'-C,

646

IXDEX-DIGEST.

PUBLIC RECORDS — Continued.

in R. L., c. 19, and in the niles formulated

thereunder.

Letters and other memoranda received by
the Ci\*il Sers-ice Commission in the course of
the investigation pro\'ided for in St. 1909,
c. 486, § 10, are not received, and are not
required to be received, for filing within the
meaning of R. L., c. 35, § 5, pro\'iding that
the words "public records" shall mean "any
written or printed book or paper, any map or
plan of the commonwealth or of any county,
city or town which is the property thereof and
in or on which any entiy* has been made or is
required to be made by law, or which any
officer or employee of the commonwealth or
of a county, city or town has received or is
required to receive for filing;" and they are
not, therefore, public records as therein de-
fined.

A member of the Legislature has no greater
right to inspect letters or papers which are in
the possession of the commission but are not
public records, than has any other member of
the public.

4. Records of Public or Incorporated

Hospitals — Inspection . .581

Under the pro\-isions of St. 1905, c. 330,
§ 3, that the records of hospitals supported in
whole or in part by contributions from the
Commonwealth or from anj- municipalitj", and
incorporated hospitals offering treatment to
patients free of charge or conducted as public
charities, "shall not be open to public inspec-
tion until they are produced in court bj' the
person ha^-ing the custody of the same," the
superintendent or other officer in charge of such
institution is not required or permitted to
furnish any person with a copy of anj- part
of such record.

PUBLIC RIGHTS — In Great Ponds —

Control and Regulation . . 302

See State Board of Health. 4.

RAILROAD — Foreign Corporation —
Control of Stock and Bonds of
Domestic Street Railway Com-
panies . . . . .53
.See FoREiGX Corporatiox. 1.

Portland Terminal Company as a . 462

.See Savixgs Banks. 6.

REAL ESTATE — Corporation to buy

and sell ..... 195
See Corporatiox. 2.

Of Insane Person — Petition
Guardian to sell — Notice
See IxsAXE Persox. 2.

First Mortgage of — Authorized In-
vestments for Sa^-ings Banks —
Notes secured by a Mortgage
of Real Estate to a Trust
Company .... 256
See Savixgs Bax-ks. 3.

REBATE — Commission on Policy on
Life of Officer or Agent of In-
s\u"ance Companj' . . .47

See IxsT-RAXCE. 3.

RECEIVER — Of Street Railway Cor-
poration — Returns to Local As-
sessors . . . . .143
See Taxatiox. 3.

RECORD — Duty of Register of Deeds to
receive and record Instrument in
Foreign Language . . .241

See Register of Deeds.

REFERENDUM — Submitted to Qual-
ified Voters of the Common-
wealth 424

.See Coxstitutiox^al Law. 17.

In Great Ponds — Regulation and

Control — Cities and Towns . 448
See State Board of Health. 6.

PUBLIC SCHOOLS — Independent In-
dustrial Schools in Cities and
Towns to be Additional to Pubhc
School System . . . 261

See Schools. 3.

" PUBLIC WORKS " — County Com-
missioners — Contracts Notice . 9
.See CorxTT Commissioxers. 1.

QUARANTINE — Contagious Diseases

— Board of Health — Expense 137
.See Pauper. 4.

QUO WARRANTO .593

See Attorxet-Gexeral. 6.

A register of deeds is not by law required to

receive and record an instrument in a foreign

language, whether or not such instrument is

accompanied by a translation.

Official Bond

See Public Officer.

182

REGISTERED PHARMACIST — Pre-
scription — Registered Physician
— Place of Residence . . 50

A registered pharmacist may, under the pro-
visions of St. 1906, c. 281, fill a prescription
written by a registered physician practising
medicine in the city or town where such
registered pharmacist is engaged in business,
■without regard to the place of residence of
such physician.

INDEX-DIGEST.

REGISTERED PHARMACIST — Con-
tinued.

'-■ Board of Registration in Pharmacy

— Intoxicating Liquor — Sale —
Certificate . . . .50

A registered pharmacist who holds a certifi-
cate issued by the Board of Registration in
Pharmacy, under the pro\dsions of R. L., c. 100
§ 23, and stating that such pharmacist is a
proper person to be entrusted with a license to
sell intoxicating Hquor, as pro^■ided in section
21, such certificate ha^-ing been issued before
the passage of St. 1906, c. 281, authorizing
registered pharmacists to sell without license
int9xicating liquor upon prescriptions of
registered physicians practising within the
same city or town, under the conditions set
forth in such chapter, must, before taking
advantage of the pro^-isions of St. 1906, c. 281,
receive a new certificate of fitness from such
Board.

Conduct of Business — Attendance 92

See Pharmacy Law. 2.

Vendor of Intoxicating Liquors ■
Sixth-class License .
See CrviL Service. 10.

461

REGISTERED PHYSICIAN — Pre-
scription filled at Place of
Business . . . . .50

See Registered PHAR^LiCIST. 1.

REGISTRATION — By Dealer in Au-
tomobiles— Expiration . .116
See ArxoMOBiLEs. 3.

Of Hunters — Residence on Land

used exclusivelv for Agricultural
Purposes . . . .206

See Hunters.

Certificate — Motor Vehicles owned

by f nited States Government . 318
.See Mass.^chcsetts Highw.^y
Commission".

Certificate of, as Hunter — Sur-
render on ConWction of Violation
of Game Laws . . .514
See G.iME Laws.

REGULATION — Of Public Use of
Sources of Water Supplj- — -Ar-
tificial Reservoirs . . 364
See State Board of Health. 5.

RELIGIOUS SOCIETY, SCHOOL OR
INSTITUTION — Appropria-
tion of Public Funds for . . 153
See CoxsTiTUTioxAL Law. 2.

RESERVE — Of Trust Company — Time

Deposit 259

See Trust Compaxt. 3.

Ar-

RESIGNATION - Public Officer

• ccptance by Governor ,

See Public Officer. 1.

RESTAURANT - Establishment main-
tainirii; Lunch R<x)m and Food
Suit's R(M>ni — MtTruiitilo or
ManufacturinK Establishment . 455
Sec L.vBuK Laws.

RESTRAINT OF TRADE - Acqui«-

lilJIl nf Stock .411.1 " ■ ' - ,1

Other Evidences of 1
of the Boston AM;, ^i

by the Boston Railruud lijiimg
Company ... 233

See Boston Railroad Hildino

(OMPAXY. 1.

RETIREMENT — Of Veteran in Ser\-ice

of Commonwealth .119

See Commonwealth. 1.

Of Veteran in Ser\-ice of Common-
wealth — Compensation . . 128

iS€€ CoMMOXWnE.tLTH. 2.

Of Veteran in Ser\-ice of Common-
wealth — Compensation — Sal-

ar>- 141

See Commonwealth. 3.

Employees of <"

Teachers and I
sachusetts .Agn
See MASSACHistrrs
TCRAL College. 2.

AuiUL

■ Employee of Commonwealth — Vet-
eran ..... 494
See Commoxwe.\lth. 4.

RETURNS — Of Companies .
the Transmission <«i '
by Electricity — Pii
■See Public Record.h.

122

Of Legislative Counsel and Agents —

Compensation .... 469
See Leoisl-vtive Cocksel ajco

Agexts.

RIOT — Or Other Disturbance of th.^
Public Peace — ('<iutity. <
Town .Authorities — Dir
Suitable .Aid — Sheriff — .\i . ^ ■■
— Selectmen — Precept — Dis-
cretion -^l-'
The public autli
town, in cases of
rioting or an"' "•
use the utin
control for t!
presorv:r

.">inci-
exists or:

under the proviai«>ii3 ui R. L.. c. JJ, J 11. suit-
able aid in the prcsor>-ation of the peace, be

648

INDEX-DIGEST.

RIOT — Continued.

may iinder such circumstances call such assist-
ance as a man of ordinarj- prudence, firmmess
and acm-ity in his situation would think neces-
sary to quell the existing or threatened dis-
turbance.

In cases of existing or threatened rioting,
the sheriff of a county, the mayor of a city or
the selectmen of a town may issue a precept
under the pro^-isions of St. 1908, c. 604,
§§ 142-150, directed to any conrmander of a
brigade, regiment, battaUon, corps of cadets,
or company within his or their jurisdiction,
requiring such commander to appear and aid
the ci^-il authoritj- in suppressing violence and
supporting the laws, the issuance of such pre-
cept being governed by the exercise of the
sound discretion, good judgment and honesty
of piirpose of the sheriff or other local officer
or officers in determining as a matter of fact
whether or not the local police may be able
to cope with the existing or threatened situ-
ation.

Actual or Impending — Right of

Sheriff to require Assistance . 48S
See Sheritf.

ROADWAYS — Controlled by Metro-
poUtan Park Commission — Vio-
lation of Rules and Regulations . 96
iSee Meteopoi-itax Park Com-
mission". 2.

RULES AND REGULATIONS — For

Lse of Charles River . . 14

See Metropolitax Park Com-

MIS3IOX. 1.

Special Regulations for Automobiles

— Cities and Towns . . 26
See Automobiles. 1.

Special Regulations for Automobiles

— Cities and Towns — Posting . 78

See AlTTGMOBILES. 2.

Of MetropoUtan Park Commission —

Violation — Arrest — Warrant . 96
See Methopolitax Park Com-

MISSIOX. 2.

For Metropolitan Park PoHce . 165

See Metropolitax Park Com-

MISSIOX. 3.

SALARIES — Of Clerks of Court,
County Commissioners and
County Treasurer — Increased
Population — Readjustment . 360
Further legislative authoritj- is required
before a countj' treasurer maj- lawfully pay
increased salaries to the clerks of the courts,
the county commissioners and the countj'
treasurer upon the basis of increased popula-
tion as determined by St. 1904, c. 451, § 1.

SALARIES — Continued.

Justices and Clerks of District, Police

and Municipal Courts — Read-
justment .... 3
See Courts.

SALE — Of Goods, "Wares and Merchan-
dise made by Con-^-ict Labor in
Prison — Regulation . . 495

See CoxSTiTUTioxAL Law. 20.

SANITATION AND VENTILATION

— Inspection of Buildings —
Jurisdiction of Inspection De-
partment of District PoHce . 192
See BuiLDixGS. 1.

SAVINGS BANKS — Legal Invest-

ments — Bonds of a RaHroad
Corporation ha-\"ing no Com-
pleted Roadbed . . .43
A railroad company incorporated in the
State of Rhode Island and Pro^•idence Planta-
tions, under an act containing the pro\-ision,
among others, that if such company fails to
complete the location, lay-out and construction
of its railroad on or before May 15, 1909, the
charter shall be void and of no effect, which
has filed its location and acquired bj- con-
demnation the land upon which to build its
road, but has not otherwise complied with the
conditions of its charter, and has constructed
no phj-sical railroad, is not a railroad company
whose road is located whoUy or in part in one
of the New England States within the meaning
of R. L., c. 113, § 26, cl. 3, par. b, which pro-
^•ides that sa\-ings banks may invest "in the
first mortgage bonds of a railroad company
incorporated in any of the New England
states and whose road is located wholly or in
part in the same."

2. Authorized Investments — Bonds,

Coupon Notes or Other E-\-i-
dences of Indebtedness of the
New York, New Haven & Hart-
ford Railroad Company . . 183
Bonds, coupon notes or other evidences of
indebtedness of the New York, New Haven
& Hartford Railroad Company, a corporation*
chartered by the laws of this Commonwealth,
payable more than twelve months after the
date of issue and issued prior to the passage of
St. 1908, c. 620, in excess of the capital stock
of such railroad corporation,, which do not fall
within any of the exceptions set forth in St.
1906, c. 463, part II., § 66, are issued in
"4'iolation of the provision of such section that
"a railroad corporation, unless expressly au-
thorized by its charter or by special law, shall
not issue bonds, coupon notes or other e\a-
dences of indebtedness payable at periods of
more than twelve months after the date
thereof to an amount which, including the
amount of all such securities pre\'iou3lj' issued
and outstanding, exceeds in the whole the
amount of its capital stock at the time actuallj-
paid in;" and such bonds, coupon notes or

INDEX-DIGEST.

040

SAVINGS BANKS — Continued.
other e\'iQences of indebtedness not being
"issued according to law," within the meaning
of R. L., c. 113, § 26, cl. 3, h, are not legal
investments for sa^•ings banks in this Common-
wealth.

3. Authorized Investments — First

Mortgages of Real Estate —
Notes secured by a Mortgage of
Real Estate to a Trust Company 256
Notes secured by a mortgage of a tract of
land with buildings thereon to a trust company
as trustee, as security for an issue of notes made
by the owners of the property, of which the
notes in question are a part, are not a legal
investment for savings banks, since they do
not constitute an investment in "first mort-
gages of real estate," within the pro\-isions
of St. 190S, c. 590, §68, cl. 1, defining author-
ized investments for sa\'ings banks in this
Commonwealth.

4. National Bank or Trust Company

— Cormected Offices — Elevator

or Dumb-waiter . . . 264

A connection between a savings bank having
an office upon the second floor of a building and
a national bank or trust company upon the
floor below by means of a small lift or dumb-
waiter, is forbidden by the pro\-ision of St.
190S, c. 590, § 19, that "no sa%-ings bank shall
occupy the same office or suite of offices with
a national bank, trust company or other bank
of discount, nor any office directly connected
by means of doors or other openings in parti-
tions with the office or suite of offices used or
occupied by any such national bank, trust
company or other bank of deposit."

5. Legal Investments — Street Rail-
way Company — Bonds — Di^-i-
dend equal to Five Per Cent, for
Five Years — Returns — Nine
Months ending June 30, 1910 —
Board of Railroad Commissioners

— Certification . . • • 33S
The Board of Raikoad Commissioners, under

the pro^-ision of St. 190S. c. 590, § 6S, sub-
di%dsion fiifth. that deposits and the mcome
derived therefrom may be invested by savings
banks "in the bonds of any street railway
companv . . . which has earned and paid in
di-^-idends in cash an amount equal to at least
five per cent, upon all its outstanding capital
stock in each of the five years last preceding
the certification by the board of railroad com-
missioners hereinafter pro\-ided for;' and of
St. 1909, c. 502, § 1. that the annual returns
required bv law to be made to such Board
shall be returns for the year ending on the
thirtieth dav of June; and section 2, that such
returns for' 1910 "shall cover the doings of
street railwav companies ... for the preced-
ing nine months only, and said period of nme
months shall be deemed, under the pro%-isions
of section sixtv-eight of chapter five hundred
and ninetv of" the acts of the year mueteen

SAVINGS BANKS — r
hundred and eight, sul^
as onp of the fivo vf»;'.r-
but •'

at 1
capr

have bceii evifutxi aliij p.i.

said five years, shall not
of nine months; an'. • •
pany which shall h ■
dends in cash an .
cent, upon all i
each of the fi--

ception of said

included in the list to b--
mitted by the hnaH "
transmit to tl
the name of ;.
has paid di\-i'i
ending Sept. 30, luaJ, 5 ;
ending Sept. 30, 1906. 1
respectively, and 2 t -•■■
3 per cent, on pr>
months ending on J'.

::^

of
•>d

in-
. vi-

;*r

■ in

■ :%»-
•^4

for the nine

6. Legal Investment — Bond« of

Terminal Corporations — Rail-
road 462

By providing in St. 190<;. r. riOO. j 68. cl. 3,

subdi\'ision a, that : « banks

and the income li' may be

invested "in the ! ... . .-:• i m

accordance with the laws o:

wealth, of a railroad cnrpnrtiti

therein, ... or in '

of a terminal corp< :

commonwealth," ;^-

of said § 6S>,

§ S, that such

therefrom ma> i>

gage bonds of a r-.i.

rated in any of th

railroad of w!

therein," the

the investmei

to the first n.

panics incorpv:
The Porthma i

poration orpamzetl •.

of Maine fur th.

maintaining,

terminal in ti

izcd to acquir.

franchises, ri;:hts it i

railroad ror;"Tfl'!"r> \

designa;

such t< r

tables, .

engages in li

of pa^euptT

however. Ik-

corixjration"

c. 590. § 68, .

by St. 1909. c. 4J1. i ^. ■'

T-. • - ' v-_... ;.,T^,,M — Way

qvL.t.

650

INDEX-DIGEST.

SAVINGS DEPARTMENT — Of Trust
Company — Member of Board
of Investment as Endorser on
Note for Money loaned by Cor-
poration ..... 454
See Trust Compaxt. 4.

SCHOOL COMMITTEE — Authority
to draw Orders directly on Town
Treasury ....

See Schools. 1.

SCHOOL HOUSE — Erection of, in Pub-
lic Park — Change of Use —
Proprietary- Rights . . . 406

See CoxsTiTrxioxAL, Law. 16.

SCHOOLS — School Committee — Au-
thority to draw Orders directlj'
on Town Treasury^ — By-Law . 37
The school committee of a town may, in the
performance of the duties imposed upon such
committee bj' law, and for the purposes set
forth in the statutes, make expenditures which
such town is bound to pay, and for the pay-
ment thereof may draw orders directly upon
the town treasury-, notwithstanding a by-law
of the town to the effect that the town treasurer
shall not pay money upon orders other than
orders drawn by the selectmen.

2. Public or Private — State Normal

Schools — Pupils — Street or
Elevated Railway Companies —
Special Rates . . . .75

Pupils in State normal schools are not en-
titled to the benefits of R. L., c. 112, § 72, as
amended by St. 1906, c. 479, pro-\-iding that
"the rates of fare charged by street or elevated
railway companies for the transportation of
pupils of the public or private schools . . .
shall not exceed one-half the regidar fare
charged by such street or elevated railway
company for the transportation of other pas-
sengers."

3. Industrial Education — Independ-
ent Industrial Schools — State
Board of Education — - Public
Schools — Cities and Towns . 261
The pro\'isions in sections 2 and 3 of chapter
505 of the Acts of 1906 for the establishment
of independent industrial schools, for the
maintenance of which the Commonwealth has
in part to reimburse the municipalities by
which such schools are established, do not
create distinct classes of schools after estab-
lishment, but rather prescribe methods by
which such schools may be created, and con-
template industrial schools, the establishment
of which has been initiated and superintended
by the Commission on Industrial Education,
or by its successor, the State Board of Educa-
tion, or has been pro\'ided for by the munic-
ipality in which such school is located.

An independent industrial school, so estab-
lished, must be in addition to, and not a part
of, the pubUc school system of the city or town
where such school is located.

SCHOOLS — Continued.

4. Independent Industrial Schools —

Non-resident Pupils — Tuition
Fees — ^laintenance Fund —
Disposition of Revenue — Cities
and Towns — Money received
from Fees for granting Licenses
for the Sale of Intoxicating
Liquor ..... 315
St. 1908, c. 572, § 4, which permits the at-
tendance of non-resident pupils at an inde-
pendent industrial school "upon payment by
the city or town of his residence of such tuition
fee as may be fixed by the" State Board of
Education, authorizes such Board to establish
a tuition fee for such attendance which in the
view of the Board is fair and reasonable under
all the circumstances of the case. Tuition fees
received from non-resident pupils, and revenue
arising from compensation for the work of
pupils or from a sale of the products of an
independent industrial school, should be ap-
plied to the maintenance of such school.

Money received by a city or town from fees
for the granting of liquor licenses and appro-
priated to the maintenance fund of an inde-
pendent industrial school is not "money raised
by local taxation" or "money donated or con-
tributed," within the meaning of St. 1906,
c. 505, § 5, as amended bj- St. 1909, c. 540,
providing that where "a city, town or district,
either by moneys raised by local taxation or by
moneys donated or contributed, has maintained
an independent industrial school, the common-
wealth, . . . shall pay ... to such cities,
towns or districts a sum equal to one half the
sum raised by local taxation," and no account
should be made thereof in the reimbursement
pro\-ided for in such section.

Right to Enter — State Inspectors of

Health — Cdntagious Diseases

— Boards of Health . . 196

See Boards of Health.

SEALERS OF WEIGHTS AND MEAS-
URES.

.See Weights and Measures.

Heads of Departments — City

Charter of City of Boston . 296

See Civil Service. 6.

SECRETARY OF THE COMMON-
WEALTH — History of Unit of
Military Organization of Massa-
chusetts Volunteers — Approval
byProper Veteran Association —
Purchase of Copies . . . 149

St. 1893, c. 413, § 1, as amended by St. 1899,
c. 388, authorizing the purchase by the Secre-
tarj' of the Commonwealth, subject to the re-
strictions therein prescribed, of 500 copies of a
history of any regiment, battery or other unit of
military organization of Massachusetts Volun-
teers, prepared and published "under the
sanction and authority of its proper veteran
association," permits the purchase of the des-

INDEX-DIGEST.

651

SECRETARY OF THE COMMON-
WEALTH — Continued.
ignated number of copies of such a publication
sanctioned and approved by certain late
officers of the organization appointed by the
members thereof for the purpose, although no
veteran association exists in connection with
such organization.

SELECTMEN — Duty in Case of Riot or
Other DisturlDance of the Public
Peace — MiUtia — Precept —
Discretion .... 515

See Riot.

SENATE — Authority to require Opinion
of Attorney-General within Fixed

Time ■42-1

See Attorxey-Gexeral. 2.

SETTLEMENT.

See Pauper.

SHERIFF — Right to require Assistance
in Case of Actual or Impending
Riot, Tumult or Other Breach
of the Peace — Citizen — Mihtia
— Precept . . ._ . 488

Where there is imminent, impending danger
of a riot or other breach of the peace, the
sheriff of any county may call such aid as a
man of ordinarj' prudence, firmness and ac-
tivity in such situation might think necessary
to quell such riot or disturbance; or where a
tumult, riot or mob actually exists or is threat-
ened he mav, under the pro\-ision3 of St. 190S,
c. 604, § 142, issue a precept directing any
commander of a brigade, regiment, battaUon,
corps of cadets or company within his juris-
diction "to appear at a time and place therein
specified, to aid the ci\-il authority m sup-
pressing such \-iolence and supporting the
laws." , f 1.

If, however, no riot or other breach of the
peace actually exists or is threatened, a sheriff
has no authority to call upon citizens to act
as patrolmen or to do ordinarj- poUce duty.

Duty in Case of Riot or Other Dis-
turbance of the Public Peace —
Suitable Aid — Militia — Pre-
cept — Discretion . . • ^l**
See Riot.

SIGNATURE — Of Governor, on Reg-

istered Bonds . . • .60

See Governor. 2.

SOLDIERS' HOME IN CHELSEA —

Charitable Corporatioa — Pur-
poses of Incorporation — Soldiers
and Sailors . .• • „ , • "lli

The charitable corporation called tne
"Trustees of the Soldiers' Home in Massa-
chusetts," created by the Pro^Tsions of M.
1S77 c -nS, for the purpose of estabhshing
and 'maintaining in the city of Chelsea a
home "for deser^-ing soldiers and sailors and
such members of their families as said trustees

SOLDIERS' HOME IN CHELSKA —

Continuril.
may deem to tx* i)ropcr," m-.iv r. •!■,.• i;i
home or institution any d<-- •
sailor, who has served in the '■:
or naval forces either of the . ..,1,.:.
of the United States: and the tr
templated by St. 190S, c. l'.»<.>. §
that "all real and personal <•-•
trustees shall revert to th
when the purpose for which t;.
incorporated shall have been ac
may not be made upon failure to i;
for the institution who have served m ;!.•
war of the rebellion.

SPECIAL ELECTION — Precept of Gov-

ernnr . . . . .

.Sk Ele<tiiin" Laws. 1.

457

SPRINGFIELD STREET RAILWAY
COMPANY — Owncr-iup iind
Control by New Vcirk, New
Haven & Hurtturd Railroad
Company — Decree of Supreme
Judicial Court — Compliance 471
See New York, New H.wen &
H.VRTFORD Railroad Company.

STANDING WOOD AND TIMBER —

Taxutimi — .\ni('nilni'-iit tn (uti-
slitutiou Relative to Taxation of
Wild or Forest Lands .531

See CoN-STiTUTioxAL Law. 24.

STATE BOARD OF CHARITY-

Minor Child — Rcliiiioiis l:in)!

— Adoption — Discharge .
St. 1905, c. 464, § 1, which in part jr
that " No minor child in the care, or un ;
supervision of any state board of charity^r oj
any state commission, or stat*" hoard of
trustees, shall be denic<l the fr
of the religion of his parents . .
affect the authority of the >' i
Charity in its discretion to ;
child committed to its custo-i
of adopted parents, if i* • ■
that the .ibjccts of th.-
accomplished and th 1
child will be best ser
notwithstanding that
such adopted parents ^'■■■- '■
natural parents of such child.

STATE BOARD OF EDUCATION -

IiatiiitiMii ..1 l.i.i.-iH-iul.'Ut In-
dustrial Schools
See Schools. 3.

STATE BOARD OF HEALTH ^ < ' .n-

Pnwers with Lo<:>! i: >r : "f

Health — Cities an
Under R. I- . -• '^- * **
that "if s'
or infection
health exist.- -.

652

INDEX-DIGEST.

STATE BOARD OF HEALTH — Con-
tinued,
within the Commonwealth," the State Board
of Health shall make an investigation thereof
and "shall have co-ordinate powers as a board
of health in every city and town, with the board
of health thereof ..." the exercise of such
co-ordinate powers by the State Board of
Health is confined to places throughout the
Commonwealth where contagious diseases
exist or seem likely to exist.

2. Nuisance — Jurisdiction — Abate-
ment of Nuisance — Pending
Complaint to Local Board of
Health and Bill of Complaint
in Superior Court . . .85

The State Board of Health may, under the
provisions of R. L., c. 75, § 109, entertain an
application or complaint alleging that a cor-
poration engaged in the manufacture of cement
is maintaining a nuisance upon its premises,
and may investigate the conditions attending
such manufacture upon such premises, not-
withstanding that such corporation was
authorized by the local authorities to engage
in and carry on the business of manufacturing
cement at such place, and notwithstanding
that a bill of complaint of the same tenor was
filed by the petitioner and is now pending
before the Superior Court, and that a like
complaint has been presented to the local
board of health, upon which such board has
not yet acted.

3. Proprietary or Patent Medicines

— Label — Fractional Part of
Original Package — Prosecution

— Public Notice . . . 180
St. 1906, c. 386, as amended by St. 1907,

c. 259, providing in section 1 that "upon every
package, bottle or other receptacle holding
any proprietary or patent medicine . . . shall
be marked or inscribed a statement on the
label of the quantity or proportion of each
of said substances contained therein," requires
that the container of fractional parts sold
from the original package by prescription shall
be also marked with the prescribed label.

The provision of St. 1906, c. 386, § 6, as
amended by St. 1907, c. 259, that the State
Board of Health shall not cause the prosecu-
tion of persons violating the provisions of
such act "for the sale at retail or for the gift
or exchange of any patent or proprietary
medicine or food preparation containing any
drug or preparation the sale of which is pro-
hibited or restricted as aforesaid," until after
public notice, is not applicable to sales of
unlabeled quantities.

4. Water Supply — Great Ponds —

Control and Regulation —
Wright's Pond and Ashley's
Pond in the City of Holj^oke —
Regulation of Public Rights . 302
The State Board of Health, under the pro-
visions of R. L., c. 75, § 112, and § 113 as

STATE BOARD OP HEALTH — Con-

tinued.
amended by St. 1907, c. 407, vesting in such
board the "oversight and care of all inland
waters and of all streams and ponds used
by any city, town or public institution . . .
as sources of water supply," and pro\iding
that it may regulate and control the exercise
of the public rights of fishing, boating, skating
or taking ice, and may delegate the power of
granting or witholding permits to the local
authority, — may regulate the exercise of
such public rights on Wright's Pond and
Ashley's Pond in the city of Holyoke, used by
said city as a source of water supply under
the provisions of St. 1872, c. 62, provided
such regulation or prohibition is reasonably
necessary to secure the sanitary protection
thereof.

5. Sources of Water Supply — Reg-
ulation — Artificial Reservoirs —
Boating and Fishing . .364

R. L., c. 75, § 133, as amended by St. 1907,
c. 467, § 1, providing in part that the State
Board of Health "may make rules and regula-
tions to prevent the pollution and to secure
the sanitary protection of all such waters as
are used as sources of water supply," and
"may delegate the granting and withholding
of any permit required by such rules or regu-
lations to state boards and commissions and to
selectmen in towns and to boards of health,
water boards and water commissioners in
cities and towns, to be exercised by such
selectmen, boards and commissions . . . ;
and upon complaint of any person interested
said board shall investigate the granting or
witholding of any such permit and make
such orders relative thereto as it may deem
necessary for the protection of the public
health," does not authorize the State Board
of Health, upon petition of certain inhabitants
of a town requesting such Board to cause
suitable rules and regulations to permit
fishing in certain reservoirs artificially con-
structed and now owned and used as a source
of water supply by such town, to require the
water and sewer board thereof to issue per-
mits for fishing, since the regulation of boating
or fishing or of any use of such reservoirs
which does not directly relate to the preserva-
tion of the purity thereof is for such town to
establish.

0. Water Supply — Great Ponds —

Control and Regulation — Public .
Rights — Cities and Towns . 448
Under the provisions of R. L., c. 75, §§ 112
and 113, as amended by St. 1907, c. 467,
vesting in the State Board of Health the
"oversight and care of all inland waters and of
all streams and ponds used by any city, town
or public institution ... as sources of water
supply," and providing that it may regulate
and control the exercise of the public rights of
boating, fishing, skating or taking ice, and may
delegate the power of granting or withholding

INDEX-DIGEST.

653

STATE BOARD OF HEALTH — Con-

tinned.
permits to the local authorities, "and upon
complaint of any person interested . . . shall
investigate the granting or withholding of any
such permit and make such orders relative
thereto as it may deem necessary for the
protection of the public health," a city or
town may prohibit the public right of boating
or fishing upon a great pond used as a source
of water supply only in cases where such pro-
hibition is necessarily involved in the use of
such great pond as a source of water supply,
and where complaint is made with respect to
the granting or %\dthholding of a permit by the
local authorities, if such board considers that
the issuance of the permit so withheld would
not endanger the purity of the source of water
supply, it may make such order in the premises
as it deems necessary for the protection of the
public health, and may doubtless require the
issuance of the permit.

Letters and Reports in Custodj' of —

Public Records . . .136

See Public Records. 2.

Food and Drug Inspectors — Wit-
ness Fees and Allowances for
Travel 292

See Fees.

STATE FORESTER — Co-operation
with Private Individuals in De-
struction of Gypsy and Brown-
tail Moths . . . .536
See Gypst and Brown-tail
Moths. 2.

STATE HIGHWAY — Massachusetts
Highway Commission — Tele-
graph, Telephone and Electric
Light Poles — Original Loca-
tions . . . • .59
The Massachusetts Highway Commission
have no jurisdiction to grant original locations
for telephone, telegraph or electric light poles
independently of the local board, which, under
the provisions of St. 1906, c. 117, are con-
stituted the tribunals for that purpose.

2. Alteration of Location — Abandon-
ment .... '..^V^
A portion of an existing State highway which,
under a proposed plan for alteration of location
under R. L.. c. 47, §§ 7 and 8, does not fall
within the limits of such highway as established
by such alteration, may be abandoned.

3. Defect or Want of Repair — Lia-
bility of Commonwealth — Con-
struction or Repair — Use of
Liquid Asphalt — Damage . 174

By the provision of R. L.. c. 47, § 13, that
"the commonwealth shall be liable for injuries
sustained by persons while traveling on state
highways in the manner and subject to the

STATE HIGHWAY — Continurd.
limitations, oonditiuiis mid n -^trirtionii pro-
vided in sections figlitocn, (wcniy m.! m. •.t\.
one of chapter fifty-one, except th
the injury shall be (riven to a nn i
commission or to its sccrotury," w i:
is imposed upon the Commonwealth f(.r
ages to the per.«nn or property of u tr , -
upon a State highway other than for da:,
caused V>y reason of a defect or a w;.:
repair or of a sufficient railing in or ui>oi. .
highway. To constitute such {lefcoi or ■•
of repair there must be soniethinR in fli.-
dition of the highway, either \n
defective construction or waul of i
the nature of an obstruction, whid.
ous to the safety of the person or i.i. ■,
of the traveler; and where the prop< r:
such traveler upon a i>tate highway is duin.iK.^i
by splashes of liquid asphalt used in connection
with the construction or repair of such high-
way, the statute above cited affords no remedy.

4. Opening — City or Town — Water

Works — Servdce Pipes . . 242

The water commissioners of a town arc not
authorized, without the i)erniission of the
Massachusetts Highway Coniniission, as re-
quired by R. L., c. 47, § 11, to oi>cii a State
highway for the purpose of la>'ing wrvice pi|x*s
therein, under an act providing that, in the

construction and maintenance of stii* ' ' • r

works for the use of such town, th'
and maintain aqueducts, conduit-. i

other works under and over . . . public and
other ways" in such town.

STATE HIGHWAYS — Rules and Regu-
lations — \iolation — Arrest —

Warrant 00

See Metropolitan Park Com-
mission. 2.

STATE HOUSE — Persons employctl at

— Vacations . . .413

See Labor. 6.

STATE INSTITUTION — Trustooa

Sale of I. ami to Institution ut a
Profit ^"S

See MA88ACHV8ETT8 AORICl'I/-
TL"RAL CoLLKCK. 1.

STATE NORMAL SCHOOLS — Street

and Elevated Uailway Compa-
nies — Special Uatos to Pupils . 75
.Sec Schools. 2.

STATUTE — Acceptance — Approved by
Majority of (^ualifitHl Votcm of
Coninionwcalth • ,-,.?*

So much of Senate Hill No " < ..nM.l An
Act to fi-x the punishment
murder," as purports to pro-.

shall take effect when approv.-i i.\ :»■....;

of the voters of the Commonwealth, w uncon-
stitutional.

654

INDEX-DIGEST.

STATUTE — Continued.

2. Presumption of Lawful Passage —

Administrative Officers . . 415

The presumption arising from the proper
custody and due authentication of an act of
the Legislature that such act was passed in
accordance with the requirements of the Con-
stitution, should be regarded as binding upon
administrative officers, and such act should be
regarded by them as having "the force of a
law."

Effect of Retroactive Statute on De-
rivative Settlement . . .67
See Pauper. 1.

Effect of Retroactive Statute —

Settlement . . . .84

See Pauper. 2.

Acceptance — Hours of Labor —

Cities and Towns . . . 567

See Labor. 8.

General and Particular — Repeal —

City Charter of City of Boston . 296
See Civil Service. 6.

General and Particular — Appoint-
ment of Superintendent of Streets
in City of Marlborough . . 593
See Attorney-General. 6.

STEAM BOILER — Operation by Un-
licensed Person . . . 524
See License. 3.

Inspection by Insurance Companies

— Certificate .... 585
See Insurance. 9.

STEAM ENGINE — Operation by Un-
licensed Person . . . 524
See License. 3.

STOCK — Of Domestic Street Railway
Company — Acquisition of, by
Foreign Railroad Corporation
See Foreign Corporation. 1.

Of Boston & Maine Railroad — Ac-
quisition by Boston Railroad
Holding Company — Restraint
of Trade . . . .233
See Boston Railroad Holding
Company. 1.

STREET RAILWAYS — Issue of Bonds
— Board of Railroad Commis-
sioners — Approval — Sale at
Less than Par Value . . 329

The provision of St. 1906, c. 463, Part III.,
§ 103, that for the purposes therein specified a
street railway company "may . . . increase
its capital stock or issue bonds, ... to such
an amount, ... as the board of railroad
commissioners shall determine will realize the
amount which has been properly expended or
will be properly required . . . for such of the

STREET RAILWAYS — Continued.
purposes aforesaid as are set out in its petition
to said board," authorizes the Board of Rail-
road Commissioners to approve an issue of
bonds and the sale thereof by a street railway
company at less than par value, provided that
the price realized by such sale furnishes a fair
and reasonable equi\'alent for the securities
so disposed of.

The Board of Railroad Commissioners, hav-
ing acted upon the petition of a street railway
company and determined the amount of bonds
which, if sold at par, would realize the amount
properly expended or properly required, as set
forth in the petition, upon a subsequent
petition may take into consideration the fact
that the petitioner has been unable to dispose
of the bonds so authorized at par, and may
approve a further issue of bonds for the same
purpose in order to meet the deficit so created.

St. 1910, c. 536, amending St. 1906, c. 463,
Part III., § 103, and pro\'iding that the Board
of Railroad Commissioners, in authorizing an
issue of bonds under section 103, "may pre-
scribe the minimum price at which such bonds
shall be sold, and may modify such price from
time to time," and where the minimum price
so established is less than par, may provide
for the establishment of a sinking fund which
at the maturity of the bonds will amount to the
difference between the selling price and the par
value thereof, is applicable to a petition pend-
ing at the time of its passage.

2. Free Transportation of Letter Car-
riers in Uniform — Constitutional
Law — Safety, Health or Proper
Convenience of the Public . 388

A statute requiring street railway companies
to carry free on their passenger cars United
States letter carriers in uniform in the city or
town in which such letter' carriers are employed,
does not tend to promote the safety, health or
proper convenience of the public, but is an
arbitrary enactment in favor of the persons
designated, letter carriers in uniform, and, as
such, is unconstitutional and void.

Acquisition of Stock and Bonds of,

by Foreign Railroad Corporation

— Control . . . .53
See Foreign Corporation. 1.

Special Rates to Pupils of State

Normal Schools . . .75

See Schools. 2.

Taxation — Receiver — Liability for

Tax 143

See Taxation. 3.

Bonds of — Legal Investment for

Sa\angs Bank — Dividend Equal
to Five Per Cent, for Five Years

— Returns including Nine
Months, ending June 30, 1910 —
Certification by Board of Rail-
road Commissioners . . . 338
See Savings Banks. 5.

INDEX-DIGEST.

055

STREET RAILWAYS — Continued.

Rates — Constitutional Law . . 396

See Boston Elevated Railway

Company. 1.

Holding Company incorporated to

acquire Stock of Domestic Street
Railway, Gas and Electric Light
Corporations . . . .417

See Corporation. 4.

Ownership and Control by Railroad

Corporation . . . .471

See New York, New Haven &
Hartford R.^ilroad Company.

SUITABLE PERSON — Keeper of Hos-
pital for Insane and Feeble-
minded — Resident or Consult-
ing Physician .... 359
See License. 2.

Keeper of Hospital for Insane and

Feeble-minded Persons — Part-
nership ..... 563

See License. 4.

SUNDAY — Action of Governor on Bills
and Resolves within Five Days
— Constitutional Law . .414

See Governor. 5.

SUPERINTENDENT OF STREETS —

Appointment of, iu City of Marl-
borough ..... 593
See Attorney-General. 6.

SUPREME JUDICIAL COURT — De-
cree of, respecting Ownership and
Control, by New York, New Ha-
ven & Hartford Railroad Com-
pany, of Springfield Street Rail-
way Company — Compliance . 471
See New York, New Haven &
Hartford R.ulroad Company.

SURETY — On Official Bond — Wife of

Principal . • • -260

See Bond.

SURPLUS — Of Trust Company — Loan

to Single Individual . . .69

See Trlst CoMPANT^. 1.

TAX — Income . . _ . 267

See Constitutional Law. o.

TAXATION — Corporate Bonds — Mort-
gage — Value of Bonds in Excess
Sf Value of Mortgaged Real Es-
tate . • , ^- \t
The bonds of the New England Cotton \ am
Company, amounting to 85,206,000 par value,
are taxable to the holders thereof upon the
excess of the amount outstanding over the
assessed value, to ^\-it. 82.105,575, of the real
estate mortgaged to secure such bonds.

TAXATION — Conlinufd.

2. Exemption — •* FiirniinR I tiiisila"

— Person .60

Under the provi.sionti of R. L., r. 1.' ( .',
cl. 11, excmptinK from taxation, an
specified articles of propi-rty. thi-
utensils of evcr>* iktsoh," such •
should in general bo confiiied to ii:
tools and uten.-sils used by any |mt-
pursuit of agriculture.

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

3. Street Railway Corporation —

Receiver — Returns to I>>cal
Assessors — Liabilitv for Tax. 143
St. 1906, c. 4C3, Part IIL, § i:W, rcHjuiring
a street railway corporation to make a return
to the board of as.sessor!> of ev<T>- '•i'v and
town of the anK)unt of ji ' ' r tin-

year ending on the prec^ '-ni-

ber, and of the length <•: f'-

quires a street railway comp.Uij u. ;
return, notwithstanding s'uch con

gone into the hands of a r- ' ■ . .; ■

franchises and property havi ,'nor

to September 30, undi-r tli' - <>'

St. 1906, c. 463, Part III., § 111,
corporation, organized for the i
owning and operating such road; :i:
provided for by section 134 of Pari 111. ui
such statute may be assessed ui)on it ami may
be collected from the purchajiing company.

4. Excise Tax on Expre.s.« P.>i-iii.-- on

Any Railroad, Rail

boat or Vessel in tl

wealth — Conipufai:

Earnings within il

Value of Capital. P.

funded Debt — D<

Stocks, Securities m

tate out^i'i" ' '•■■".

used in F.
In St. 1907. c. .>■
c. 194, and St. r.Kis, r. <■.
tax upon all person.-^, (••"■
or associations doin;{ an ■
any railroad, railway. '
the Commonwealth, and :
that such tax shall l>f 'o- ■ ••
value of such proportion oJ his or
bonds and 111/11:1!") 'l'"''^ . . . n«
earning.s of t!
ship or asson

or its total ni-

earnings . . . within tii<- "t"'

ings within the SfMto fr.m. im

and such cai

deterniining ^,^|

In deterniii
bonds and unluii>i»>i .i'
pany, partncr.xhip or
express business on n
steaml>oat or ves,'«ol v
wealth for the pun)o.He « :

tax proWded for under in.- "■;''.' "■^:_u_
cited; property con.-^.st.ng of stock». sccunuw

656

INDEX-DIGEST.

TAXATION — Continued.
and real estate outside the Commonwealth
and not used in the express business should be
deducted from the total value of the capital,
bonds and unfunded debt.

5. Exemption — Woodland used for

Educational Purposes — For-
estry 247

A tract of woodland, acquired and used by
Harvard University for the purpose of in-
struction in forestry, is owned and occupied
for educational purposes, and is therefore
exempt from taxation, under the provisions
of R. L., c. 12, § 5, cl. 3, which exempt from
taxation real estate owned and occupied by
literary, charitable and scientific institutions
for the purpose for which such institutions are
incorporated.

6. Business Corporation — Deduc-
tions — Stocks and Bonds sub-
ject to Taxation if owned by a
Natural Person Resident in this
Commonwealth . . . 249

In the assessment of the franchise tax upon
a business corporation under St. 1903, c. 437,
or St. 1909, c. 490, part III., the value of stocks
and bonds which would be subject to taxation
if owned by a natural person in this Common-
wealth should not be deducted from the value
of the corporate franchise.

7. Property omitted from Annual

Assessment — Removal of Tax-
payer from the Commonwealth, 266
Under the provisions of St. 1909, c. 490,
part I., § 85, an assessment of taxes upon
property omitted from the annual assessment
may be made, although the person assessed
has removed from the Commonwealth prior
to December 15.

8. Domestic Corporation — Mini-
mum Limit of Tax — Local
Taxation — Deductions — Mort-
gage on Real Estate . . . 335
In determining the minimum limit of tax
upon a domestic corporation under the provi-
sions of St. 1909, c. 490, Part III., § 43, that
"the total amount of tax to be paid by such
corporation in any year upon its property
locally taxed in this commonwealth and upon
the value of its corporate franchise shall
amount to not less than one tenth of one per
cent of the market value of its capital stock
at the time of said assessment as found by the
tax commissioner," a mortgage on real estate
taxable as real estate to the mortgagor, and
held by a domestic corporation, is not included
within "its property locally taxed in this
commonwealth," and the tax paid by the
mortgagor on such real estate may not be
used to reduce the amount of the franchise
tax to be paid by the corporation holding
such mortgage.

TAXATION — Continued.
9. National Banks — Tax on De-
posits — Constitutional Law . 409

A proposed bill, in substance imposing upon
all or certain of the deposits in national banks
within the Commonwealth an annual tax of
not more than one-half of one per cent., if
enacted, would be unconstitutional as a tax
upon the property of the depositors or upon
the property of the bank because it is not
proportional within requirement of the Consti-
tution of Massachusetts, Part II., c. 1, § 1,
Art. IV., that taxes levied upon property
must be "proportional and reasonable."

Such a bill would also be unconstitutional as
a tax upon the property of the bank because
it is in conflict with Revised Statutes of the
United States, § 5219, which restricts the
power of a State to tax national banks to a
taxation of the shares of stock in the names
of the shareholders and to an assessment of
the real estate of the bank.

As an excise upon the privileges of the
depositors, such bill would be unconstitutional
because the mere right to take and hold prop-
erty cannot be made the subject of an excise
tax; and as an excise upon any privileges of
the bank, it would be unconstitutional because
it would be in conflict with the provisions of
Revised Statues of the United States, § 5219,
above cited.

10. Bonds of Domestic Electric Light

Corporation secured by Mort-
gage on Real Estate and Personal
Property — Exemption . .431

The bonds of a domestic electric light cor-
poration secured by a mortgage of real estate
within the Commonwealth and of personal
property are not exempt from taxation under
the provisions of St. 1909, c. 490, Part I.,
§ 4, cl. 2, that personal estate, for the purpose
of taxation, shall not include "any loan on
mortage of real estate, taxable as real estate,
except the excess of such loan above the as-
sessed value of the mortgaged real estate."

By Cities and Towns, to defray Cost

of harvesting and selling Ice . 109
See Cities and Towns. 2.

Public Purpose — Appropriation for

Society, School or Institution
under Sectarian Control . . 153

See Constitutional Law. 2.

Excise — Boston Railroad Holding

Company — Exemption of Bonds
from Local Taxation . . 280

See Boston Railroad Holding
Company. 2.

Uniform Rate upon All Personal Es-
tate within the Commonwealth 294
See Constitutional Law. S.

Income Tax . . . .

See Constitutional Law'.

299

INDEX-DIGEST.

657

TAXATION — Continued.

Money raised by — Expenditure for

Construction of Hishways to re-
lieve Persons out of Employment
in Times of Industrial Distress
— Public Purpose
See Constitutional Law. 10.

305

■Appropriation of Money raised by,
for the Museum of Fine Arts —
Public Purpose . . . 380

See Constitutional Law. 13.

• Exemption of Land acquired bj' In-
stitution for Care of Insane
See Constitutional Law. 15.

384

T Appropriation of Public Funds raised

by — Relief of Destitute Fami-
lies of Striking Employees —
Public Purpose . . . 486

See Constitutional Law. 18.

Of Wild or Forest Lands — Amend-
ment to Constitution — Stand-
ing Wood and Timber . .531
See Constitutional Law. 24.

TAXES — Money borrowed in Anticipa-
tion of — Limit of Authority to
issue Notes in Payment . . 327

See Cities and Towns. 3.

TELEGRAPH COMPANY — Premises

of — Mercantile Establishment . 412
See Mercantile Establishment.

TERMINAL CORPORATION — Bonds

of — Lemd Investment for Sav-
ings Banks . . . .462
See Savings Banks. 6.

TEXTILE GOODS — Manufacturing
Establishment — Employment of
Minors or Women — Knitting . 126
A manufacturing establishment in which
goods are made by the process of knitting is
an establishment "engaged in the manufacture
of textile goods," within the meaning of R. L.,
c. 106, § 27, as amended by St. 1907, c. 267,
providing that " No person and no agent or
officer of a person or corporation engaged in
the manufacture of textile goods shall employ
any minor under eighteen years of age or any
woman, before six o'clock in the morning or
after six o'clock in the evening."

THEATRE TICKETS — Sale of — Reg-
ulation— Police Power . .491
See Constitutional Law. 19.

TIDE WATER — Cities and Towns —

License — Fish Trap . .18

A fish trap cannot be lawfully maintained
in tide water without a license, as rc(4uired by
R. L., c. 91, § 116, from the selectmen of the
town, or mayor and lioard of aldermen of the
city, within which such fish trap is located.

TIME DEPOSIT — Rcseno of Trust

Company .... 259

Sec TnusT Compavy. a.

TOWNS — Assessors — Term of Office . 337
Since St. 1907, c. 579, ( I, iir.viiii,^ i„ ,,ftrl

that "each as.sps.sor in oven.' ■ • n in

the common wealth . . . ahull l or

appointed for the term '>f I'l . ."

took effect on Jan. 1, I'.ti .^^

which may choo.se us*- ..•-, aa
pro\'ided in St. 1907, c. .V.n, j .s, i.

2. Issue of Notes — Demand Notes

— Time of Payment — Town
Treasurer .... 342

St. 1910. c. 616, S 1, prnvi'- - •' ■ '.
note issued by a town shall
when it shall become du'- f' r
R. L., c. 27, § 6, providiii ■
pation of taxes shall "1

year after the date of tin .: .. ;

prohibit the issue by the town of a note payable
on demand.

A town note may not, under the proviMona
of St. 1910, c. 610, § 1, be made payable to the
town treasurer.

3. Water Supply — Indebtcdneas —

Vote — Two-thirds M---^"'- 422
A town which accepts by a : ■• an

act authorizing it to supply i - i'l-

habitants with water, in incur:
must comply with the pri)\
c. 27, § 8, requirinK a two-tlur r

that it may incur debt for such puri>i>«i.

4. Note Payable "during the Year

1912" — Date of Pjiynicnf . '>2:i

A note of a town payable "\vi»!iiii •'• v. ir
1912" is in effect a note pay
date certain, or earlier at ti
maker, and therefore doo.s i
the requirement of St. 1910,
a town note shall state "the i
become due for payment."

5. Indebtedness for Water Supply —

Vot« . • V, • J'!^
A town which hm iwv»<»ptAd by a two-thirda

vote an act author! ' ' ' " " •

inhaliitants with w
therefor only by c ■
of R. L., c. 27, § s. w;..
two-thirds of the vot4r
at a town meeting to au;..
debtedness for such purpose.

6. Notes — (■

of liurcu :

to authori..

Debt "ujMin i

.\ct !iiithori>!iii
The vote -'
on March 1, 1
selectmen in :

such town to rt'iuaJ lU uibi, an .
the selectmen "to refund sajd U«i

of mi

578

658

INDEX-DIGEST.

TOWNS — Continued.

passage of an act of the Legislature author-
izing the same," does not constitute a valid
acceptance of the authority to refund the debt
in question, conferred by a statute passed on
March 28 following, and the Director of the
Bureau of Statistics should not certify notes
issued in accordance with such vote.

School Committee — Authority to

draw Orders directly on Town
Treasury . . . .37

See Schools. 1.

TOWN TREASURER — Note Payable to 342

See Towns. 2.

TRANSFER — Of Bonds of Common-
wealth 104

See Treasurer and Receiver-
General.

TRAVEL — Allowances for Employees

of Commonwealth . . . 292

See Fees.

TREASURER AND RECEIVER-
GENERAL — Bonds of Com-
monwealth — Issue — Transfer
to Executor or Administrator . 104
The Treasurer and Receiver-General, under
R. L., c. 6, § 74, which provides "that the
treasurer may . . . issue in substitution for
mutilated, defaced or indorsed bonds presented
to him other bonds of like or equivalent
issues," may, at the request of an executor or
administrator, transfer to such executor or
administrator in his individual capacity bonds
issued by the Commonwealth to a decedent
or to the executor or administrator of a de-
cedent, provided that in the case of an ex-
ecutor there is nothing in the will restricting
his general authority in the premises.

TRUANT OFFICER — Public Office —

Woman • — Constitutional Law . 444
Under existing statutes a woman may not be
appointed to or exercise the duties of the office
of truant officer, as established by R. L., c. 46,
§ 12, although there appears to be no con-
stitutional objection thereto.

TRUST COMPANY — Loan to Single

Individual — "Surplus" . . 69

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

2. Branch Office — Citv or Town . 131

St. 1902, c. 355, § 2, providing that the
Board of Commissioners of Savings Banks
might authorize any trust company to maintain
"a branch office in the city or town in which
its main office is located," does not permit
the authorization of more than one branch
office in such city or town.

TRUST COMPANY — Continued.

3. Reserve — Time Deposit . . 259

An agreement in writing, payable thirty
days after demand or notice, is a time deposit
payable at a stated time, within the meaning
of St. 1908, c. 520, § 8, which provides that
"every trust company . . . shall at all times
have on hand as a reserve an amount equal
to at least fifteen per cent of the aggregate
amount of its deposits, exclusive of savings
deposits and of time deposits represented by
certificates or agreements in writing and pay-
able only at a stated time."

4. Savings Department — Board of

Investment — Member as En-
dorser on Note for Money
loaned by Corporation . . 454

Under the provisions of St. 1908, c. 520, § 2,
that all loans or investments of deposits in the
savings department of a trust company "shall
be made in accordance with statutes governing
the investment of deposits in sa\'ings banks,"
and of St. 1908, c. 590, § 44, that no member
of a board of investment of a savings bank shall
borrow or use any portion of the funds of such
bank or "be surety for loans to others or,
directly or indirectly ... be an obligor for
money borrowed of the corporation," a member
of the board of investment of a trust companj^
cannot legally be an endorser upon a personal
note for money loaned by such company to
any person.

5. Savings Department Payment —

of Fixed Di%'idend requiring
Transfer of Funds from General
Banking Fund of Companv . 574

The provision of St. 1908, c. 520, § 3, that
the accounts of the savings department of a
trust company "shall be kept separate and
distinct from the general business of the corpo-
ration," prohibits the promise of a fixed divi-
dend or rate of interest upon money deposited
in the savings department of a trust company,
which for its maintenance requires a transfer
of funds from the general banking department
of the company to the savings department.

Savings Bank — Connecting Offices

— Elevator or Dumb-waiter . 264
See Savings Banks. 4.

TRUSTEES — Of State Institution — Sale

of Land to Institution at a Profit 308
See Massachusetts Agricul-
tural College. 1.

Of Westborough State Hospital —

Appointment of Officers — Com-
pensation . . . .313
<See Westborough State Hos-

Of Lyman and Industrial Schools —

Lyman Fund — Purchase of Land

— Title 452

See Lyman and Industrial
Schools.

INDEX-DIGEST.

059

TUBERCULOSIS — Sale of Meat from

Carcasses of Cattle infected with 208
See Animals.

TUBERCULOSIS HOSPITAL — Main-
tenance of Ward or Beds in Pri-
vate Hospital or General City or
Town Hospital — Subsidy from
Commonwealtli . . . 459

See Cities and Towns. 4.

TUMULT — Right of Sheriff to require

Assistance .... 4SS

See Sheriff.

" UNFAIR DISCRIMINATION " —

Lowering of Prices in One Lo-
calitj' by a Person, Firm, Asso-
ciation or Corporation engaged
in Business in Several Localities 526
See Constitutional Law. 23.

UNIFORM RATE — Of Taxation upon
Personal Property within the
Commonwealth . . . 294

See Constitutional Law. 8.

UNITED STATES — Motor Vehicles
owned by — Registration —
Fees . . . • • 318

See Massachusetts Highway
Commission.

USUAL PLACE OF BUSINESS — Of

Foreign Corporation . . 187

See Foreign Corporation. 3.

Of Foreign Corporation — Executive

Officers within the Common-
wealth . . . • • 255
See Foreign Corporation. 4.

VACANCY — In Office of Master
in Chancery — Removal from

County 186

See Governor. 3.

VACATIONS — Of Persons employed at

State House . . • .413

See Labor. 6.

VENDOR — Of Intoxicating Liquors . 105
See Civil Service. 1.

Of Intoxicating Liquors — Drug-
gists' Sixth-class License . .401
See Civil Service. 10.

VETERAN — Commissioned Officer

Gratuity — Attorney — Fee . 5bi
St 1912 c 702, which in section 1 provides
for a gratuity of $125 ''for those veteran
soldiers and sailors who vo unteered their ser^-
ices in the civil ^'ar/ and in section 2 provdcs
that such gratuity "shall be paid to c^ery
person or his legal representatives ..v, ho
served in the army or navy of the Umtcd
States to the credit of the commonwealth

VETERAN — Continued.

duriiii; tlio civil wur, . .
sioned officers n.s well us i
The Coniniis-sioii on Cii
by section 3 of St. 1912. c. 7w.,
to make or to secure payment •
scribed by section 0 to any utt.
person entitled thereto for the pr

w lull « ronimi«-

d>lt«h«d

■lltl"Ii <il M

claim for a gratuity under such »Uitutc.

In Service of Commonwealth — R«?-

tirement . .119

See Commonwealth. 1.

In Service of Commonwealth — Re-
tirement — Componajition . 128
See Commonwealth. 2.

In Service of Commonwealth — R«^-

tirement — Compensation . 141

See Commonwealth. 3.

Employee of Commonwealth — Re-
tirement — Consent i'Ji
See Commonwealth. 4.

VETERINARIAN .368

.s.t ('i\ 11- Service. 9.

VETERINARY INSPECTOR . 368

VETERINARY MEDICAL INSPEC-
TOR 3r>s

Sec Civil Service. 9.

VETO — Duty of Executive — Return
of Bill or Resolve — Limit of

Time 5o2

Sec Governor. 7.

VOLUNTEERS — History- of Unit of
.Military Organization of — A|>-

j.roval " 1*9

Sic Seckktakv or the Com-
monwealth.

VOTE — Of Town to incur Indobt45dnc«

for Water Supply ^"

See Towns. 3.

Of Town inrurrinn Indebt«d»e*.H fur

Water Supply . . • •

See Towns. 5.

To authorize Selectmen to rrfund

Debt "upon the Pii-»«»«e «».»'»
Act ttutlmrizinK the Snme

Note

See Towns. 0.

VOTERS ' '

.s..'l

VOTING CONTEST

See Lottkuy.

^uU-

£65

578

4Q7

.^8;2

660

INDEX-DIGEST,

VOTING MACHINES — Examination
of, by Ballot Law Commission —
Delegation of Legislative Au-
thority — Constitutional Law . 507
See Elections.

WAIVER — By Officer of Metropolitan
Park Police of Benefits of Civil
Service Rules, Effect of . . 165

>See Metropolitan Park Com-
mission. 3.

WATER SUPPLY — Great Ponds —

Regulation of Public Rights . 302
See State Board of Health. 4.

Regulation of Public Use of —

Sources of Artificial Reservoirs —
Boating and Fishing . . 364

See State Board of Health. 5.

Of Town — Indebtedness
Two-thirds Majority
See Towns. 3.

Vote

422

Great Ponds — Control and Regula-
tion — Public Rights . . 448
See State Board of Health. 6.

Of Town, Indebtedness for — Vote 565

See Towns. 5.

WAYS AND MEANS, COMMITTEE

ON — Authority to ask Advice

of Governor and Council . . 226

See Governor and Council. 1.

WEIGHTS AND MEASURES — In-
spection — Mechanical Devices
for measuring Value of Com-
modity weighed . . .51
The duty of the Deputy Sealer of Weights
and Measures, and of sealers of weights and
measures appointed in the several cities and
towns under the provisions of R. L., c. 62,
§ 18, is confined to a determination of the
accuracy of such appliances as register weights
and dry or liquid measures, and does not
require an examination of such mechanical
devices as purport to register the value of the
commodity weighed or measured.

WESTBOROUGH STATE HOSPITAL

— Trustee — Appointment of
Officers — Compensation — Gov-
ernor and Council . . . 313
St. 1909, c. 504, § 18, providing that the
trustees of the Westborough State Hospital
"shall appoint or make provision . . . for
appointing such officers as . . . may be
necessary for conducting . . . the business
of the institution; and shall determine, sub-
ject to the approval of the governor and
council, the salaries of all the officers . . . ,"
includes all persons who hold positions in
such institution which are created by the

WESTBOROUGH STATE HOSPITAL

— Continued.

trustees, and who are paid salaries, as dis-
tinguished from persons who do not hold
distinct positions and are e?mployed for wages,
and requires that the propo; -d npensation
of a person holding such posi....n shall be
approved by the Governor and C'^'mcil.

WET LANDS — Reclamation a. i Sale
of — Appropriation — Public
Purpose — Eminent Domain —
Gratuity . . . .538

See Constitutional Law. 25.

WIFE — As Surety on Official Bond of

Husband . . . .260

See Bond.

WILD FOWL — Pursuit of, in Launch

or Power Boat . . .189

See Fisheries and Game.

WILD OR FOREST LANDS— Taxa-
tion — Amendment to Constitu-
tion — Standing Wood and Tim-
ber 531

See Constitutional Law. 24.

WITNESS FEES — Employees of Com-
monwealth . . . .292
See Fees.

WOMAN — Truant Officer — Constitu-
tional Law .... 444
See Truant Officer.

WOMEN — Employment in Manufacture

of TextUe Goods . . .126

See Textile Goods.

Employment of — Mercantile Estab-
lishment — Manager of Depart-
ment ..... 269
See Labor. 5.

WOODLAND — Used for Educational
Purposes — Exemption from
Taxation .... 247

See Tax^vtion. 5.

WORKMEN'S COMPENSATION ACT

— Employee — Commonwealth

as Employer .... 569
The provisions of St. 1911, c. 751, which
establishes a system for the compensation of
employees for personal injuries received in
the course of their employment, are not ap-
plicable to the Commonwealth as an em-
ployer in its various departments nor to
direct employees of the Commonwealth.

WORKSHOP — Employment of Chil-
dren — Certificate
See Labor. 4.

177

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