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

?i;;-:<.* ; 



OFFICIAL OPINIONS 



THE ATTORNEYS-GENERAL 



Ci)e Commontoealtft of 0ia00ac|)U0etts» 



PUBLISHED BY THE 

ATTOE^EY-GEISrERAL. 



Volume IV. 

From 1913 to 1916 inclusive, 



BOSTON: 
WRIGHT & POTTER PRINTING CO., STATE PRINTERS, 
32 DERNE STREET. 
1918. 



OFFICIAL OPINIONS 



THE ATTORNEYS-GENERAL 



Cije Commontuealtj) of 9^a00acf)U0ett0» 



PUBLISHED BY THE 

ATTOEJSTEY-GE^EEAL. 



Volume IV. 

From 1913 to 1916 inclusive. 



BOSTON: 

WRIGHT & POTTER PRINTING CO., STATE PRINTERS, 

32 DERNE STREET. 

1918. 



THIS VOLUME CONTAINS 
THE OPINIONS OF ATTORNEYt^-GENERAL 

JAMES M. SWIFT, 1913, 
THOMAS J. BOYJSTTOlSr, 1914, 

he:n'ry c. attwill, 1915-1916. 

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



PREFACE. 



This volume is issued by the Attorney-General in pursuance of the 
authority contained in Resolves of 1917, chapter 111, which provides 
that the Attorney-General shall "collect and publish in a volume 
properly indexed and digested such of the ofl&cial opinions heretofore 
published as an appendix to the annual reports of the attorney- 
general during the years nineteen hundred and thirteen to nineteen 
hundred and sixteen, inclusive, as he may deem to be of public 
interest or useful for reference." 

This volume is in substantial uniformity with the preceding vol- 
umes. The work of preparation has been in charge of Mr. Louis H. 
Freese, Chief Clerk. 

HENRY C. ATTWILL, 

Attorney-General. 
Boston, January, 1918. 



Table of Statutes cited or referred to in this 

Volume. 



United States Constitution. 



Art. I, § 8, cl. 3, 
Art. IV, § 2, 
Art. IV, . 



366 
241 
439 



Amendment 5, 
Amendment 14, 



PAGE 

. 139 
139, 387, 558 



Acts of Congress. 



1906, June 29, c. 3592, 34 Stat. 596, 
1916, June 3, c. 134, 39 Stat. 166, 



PAGE 

. 196 
. 611 



United States Compiled Statutes. 



7981, 8153, 8206, 
8283-8285, 



366 

582 



10126, 



PAGE 

439 



Constitution of the Commonwealth. 



Dec. of Rights, art. 1, 

art. 2, 

art. 10, 

art. 11, 

art. 16, 

art. 18, 

art. 30, 

Const., c. 1, § 1, art. 3, 

§ 1, art. 4, 



139^ 218, 253 

421 

483 

202 

179 

420 

54 

44 

44, 70, 192, 



215, 255, 260, 261, 338, 387 



Const., c. 1, § 4, 

c. 2, § 1, 

§1, 

§1, 

§1, 

§3, 

c. 3, art. 

Amend'ts Const. 



art. 1, 

art. 1, 

art. 9, 

art. 8, 

art. 10, 

art. 1, 

3, 

, art. 2, 

8, 

11, . 



PAGE 

. 215 

. 259 
125, 259 
. 120 
. 536 
'. 385 
. 125 
. 338 
. 457 
. 420 



Statutes of the Commonwealth. 

PAGE 



1744, c. 30, § 1, . 


. 380 


1845, c. 163, §§ 3, 4, 


1784,0.64, . 


. 380 


§§6, 9, 


1785, c. 42, . 


. 380 


1854, c. 226, 


1830, c. 81, . 


. 530 


1859, c. 173, 


1836, c. 131, 


. 276 


1866, c. 149, § 4, . 


1845, c. 163, 


. 82 


1867, c. 321, 



PAGE 

. 84 
. 85 
. 277 
77, 541 
. 527 
. 277 



Vlll 



STATUTES CITED. 



Statutes of the Commonwealth — Con. 



1868, c. 

1869, c. 

c. 

1872, c. 

1874, c. 

1875, c. 

1886, c. 

1887, c. 

1888, c. 
1892, c. 

1894, c. 

1895, c. 
1897, c. 



1899, c. 
c. 



313, 

428, 

432, 

236, § 1, 

364, 

347, 

65, . 

296, 

214, § 68, 

435, §§ 2, 3, 

170, 

433, § 2, 

— §3, 
276, 
288, 

288, § 3, 
444, 

483, § 6, 
488, §§ 25, 26, 
500, §§ 3, 19, 

- §7, . 

— §10, 

— §17, 

— §21, 
442, § 17, 
448, § 1, . 

- §2, . 

- §3, . 

- §4, . 

- §6, . 

— §14, 



1900, c. 476, 



1901, c 

1902, c 

c 

c. 

c. 

1903, c, 

c, 

c. 



— §1, . 

— §§4,6, 
422, § 17, 
115, 

187, 

190, § 2, . 
213, § 1, . 
534, § 11, 

— §12, 
253, § 1, . 
332, 

402, 
415, 



PAGE 

. 277 
. 77 

527, 528 
. 528 
. 289 
. 528 

541, 542 
. 380 
. 505 
. 229 
. 77 
. 66 
. 67 

173, 174 
. 324 
. 187 
. 155 
. 80 

510,511 
. 409 

409, 413 

409, 412 
. 34 

410, 412 
. 403 
. 608 

458, 593 

599, 607 

. 463 

463, 594, 595 
. 605 
593, 594 

459, 463, 464 
. 459 
. 403 
. 28 
. 633 
. 626 
. 474 
. 410 
.411 
. 428 
. 403 
. 359 
. 521 



1903, c. 



417, 
437, 



§1, . 
§2, . 
§39, 
§40, 

§§•41, 42, 
§90, 



c, 

c. 

1904, c, 

c, 

c. 



c. 

c. 

c. 

1905, c. 

1906, c. 

c. 

c. 

c. 

c. 



452, 
459, 
124, 
243, 
370, 



§§ 1, 2, 3, 
§§ 1, 5, 



395, 
452, 

548, 
280, 

171, 

210, 
244, 
256, 
365, 
421, 
422, 



§2, 
§3, 
§5, 

§2, 



§1, 



§1, 



§§ 1, 2, 



§10, 

§§ 43, 162, 163, 

c. 463, part I, § 36, 

part II, . 



PAGE 

. 273 
. 465 
76, 83, 86 
241, 530 
. 83 
. 75 
76, 230 
. 231 
. 624 
. 342 
. 233 
. 333 
397, 399 
. 582 
405, 426 
. 405 
. 475 
. 296 
. 409 
. 582 
. 580 
. 544 
. 128 
, 623 
. 295 
. 534 
430, 431 
272, 395, 396 
. 392 
. 393 
. 200 
. 95 
§§ 13-28, 87, 93 
§§ 19-24, 89, 90, 
91, 92, 96, 97, 98 
§§ 65, 71, 78, 



c 

1907, c 

c, 

c 

c, 



502, 
203, 
215, 
386, 
394, 
396, 
402, 



127, 
§76, 



§2, 
§1, 



. 91 
. 97 
. 625 
185, 186 
625, 627 
. 474 
. 618 
. 231 
. 45 



STATUTES CITED. 



IX 



Statutes op the Commonwealth — Con. 



1907, c 

c 



PAGE 

458, . . . .54 
465, § 14, ... 590 
c. 475, . . . .381 

§§ 5, 10, . . . 379 

c. 520, . . . .80 
c. 521, § 1, . . . .256 
c. 556, .... 276 
c. 561, . . . .499 

§24, . . 499,500 

c. 576, § 11, . 29, 32, 33 

§ 26, par. 4, . . 209 

§ 32, cl. 5, 506, 507, 535 

. • § 34, 506, 507, 509, 536 



1908, c. 

c. 

c. 

c. 

c. 

c. 

c. 

c. 

c. 



108, 
142, § 
253, 
294, 
365, 
375, § 
422, 
478, § 
502, 
511, 
512, § 
520, § 
562, 



} 37, par. 4, 

J47, 
J64, 
}66, 
!§ 69, 76, 81, 

§ 1, 2, . 



1, 

§4, 



5, 



§2, 

§27, 

c. 590, § 16, 

§ 44, 

§ 68, cl. 8th, 

■ § 68. 

c. 604, § 132, 

§§ 141, 142, 151 

160, 



§191, 



1909, c. 

c. 

c. 



133, 
261, 
380, 
382, 



114, 145 
. 552 

114, 115 
. 507 
. 505 
. 61 

212, 213 

195, 196 
. 551 
. 52 
. 133 

212, 213 
. 278 

398, 405 

503, 505 
. 184 
9,10 
. 453 
. 455 
. 454 
. 190 

297, 298 
9, 10 
. 228 
. 538 

152, 
. 584 
. 538 
. 124 
62, 111 
474, 475, 476 
127, 128, 213 



1909, c. 382, 

c. 391, 

c. 412, 

c. 422, 

c. 428, 

c. 486, 



§2, . 

§1, . 
§1, . 
§§ 1, 2, 3, 



§§ 9, 10, 

§18, 

§21, 

c. 490, part 



c. 491, 
c. 504, 



c. 514, 



c. 519, 



526, 
526, 
531, 
534, 



I, § 4, cl 

§13, 

§§14, 

§26, 

§71, 

part III, § 39, 

§40, 

§41, 

§43, 

§§ 1, 4, 



§4, . 

§7, . 

§8, . 

§10, 

§12, 

§§ 17, 18, 

§§ 29, 43, 

§58, 

§76, 

§82, 

§85, 

§§ 103, 104 

§17, 

§21, 

§§ 58, 60, 

§§ 1, 3, 4, 

§3, 

§5, 



§2, 
§9, 
§15, 
§17, 



1910, c. 223, 



PAGE 

. 129 

475, 476 
. 86 
. 617 

222, 223 
. 453 

153, 156 
. 515 

455, 456 

4, . 499 

. 446 

15,23, 534 

501, 502 
. 509 
. 83 
. 221 
. 555 

501, 502 
. 190 
. 81 
. 74 
. 220 
. 80 
. 82 
. 80 
. 164 

586, 587 
. 80 
. 587 

588, 589 
. 220 
. 587 
. 137 

140, 203 
. 102 
. 377 
. 370 

406, 407 
. 406 
. 182 

608, 610 
. 609 
. 186 
. 7 
. 398 



STATUTES CITED. 



Statutes of the Commonwealth — Con. 




16. 



PAGE 

. 563 
. 578 
63, 64, 65, 66 
11, 483 
. 484 
12, 450, 487 
12, 361, 485 
363, 484 
450, 451 
. 31 
. 135 
. 63 
. 27 
. 28 
. 105 
152, 518 
. 512 
503, 505 
100, 390 
52,53 
38, 40, 41 
. 590 
. 57 
. 223 
. 154 
. 519 
. 225 
76,79 
. 75 
335, 337 
. 388 
564, 565 
. 2 
1 
. 565 
. 287 
. 494 
447, 448 
. 276 
. 516 
576, 577 
. 577 
. 91 
. 518 
. 494 



STATUTES CITED. 



XI 



Statutes of the Commonwealth — Con. 



1913, c. 356, 

c. 368, 

c. 396, 

c. 410, 

c. 421, 

c. 424, 

c. 443, 

c. 452, 

c. 464, 

c. 471, 

c. 479, 

c. 484, 

c. 487, 

c. 494, 

c. 529, 

c. 538, 

c. 564, 

c. 610, 

c. 617, 

c. 619, 

c. 633, 

c. 654, 

c. 655, 

c. 673, 

c. 682, 

c. 688, 

c. 705, 



§1, 



§1, 

§1, 

§1, 

§§1, 

§1, 

§5, 

§§1, 

§5, 

§1, 
§§1,2, 
§§ 3, 5, 6, 
§§ 15, 20, 
§25, 



§1, 



§2, 

§3, 

§4, 

c. 719, § 3, 

§ 5, cl. 15, 

§§5,6,7, 

1, . 



c. 720, 
c. 758, 
c. 763, 

c. 778, 

c. 779, 



§§ 1, 6, 

§5, . 

§1, ■ 

§4, . 
§18, 



PAGE 

159, 160 
. 578 
. 159 

111, 492 
. 264 

117, 118 
. 288 
. 427 
. 470 
. 629 
. 518 

173, 174 
. 151 
153, 154, 156 
. 512 
98, 318 
. 346 

117,118 
. 402 

137, 138 
. 138 
. 334 
. 58 
. 59 
. 347 
. 305 
. 494 
. 296 
. 509 

112. 170 
. 171 

143, 171 

144. 171 
. 149 
. 134 
. 262 
. 110 
. 119 
. 568 
. 569 
. 315 
. 311 
. 102 
. 331 
. 104 



1913, c. 784, 



c. 807, 



c. 831, 



c. 832, 



c. 835, 

1914, c. 198, 

c. 368, 

c. 398, 

c. 453, 

c. 458, 

c. 474, 

c. 479, 

c. 540, 

c. 545, 

c. 556, 

c. 570, 

c. 600, 

c. 605, 

c. 630, 

c. 643, 

c. 653, 

c. 712, 

c. 720, 

c. 742, 

c. 752, 

c. 766, 



§2, . 

§16, 

§§ 23, 29, 

§1,2, 
§5, . 
§6, . 

§7, . 

§§ 8, 9, 
§§ 11-15, 
§§ 20, 23, 

§6, . 

§ 6, par. 5, 

§§ 107, 259, 

§427, 
§2, 



§1, 

§§1, 



§4, 



§§ 1, 2, 3, 5, 

!§ 6, 22, 25, 
;§ 17, 22, 25, 
!§7,8, 

J2, . 

J200, 



PAGE 

. 597 

. 87 
. 597 
. 546 
. 591 
546, 591 
256, 591 
. 591 
. 118 
. 257 
. 567 
. 258 
. 325 
. 326 
. 340 
. 643 
. 446 
. 534 
447, 494 
. 315 
. 512 
. 489 
. 280 
. 278 
. 322 
. 320 
. 318 
. 323 
. 470 
. 301 
. 300 
. 435 
. 436 
. 469 
. 388 
. 389 
618, 619 
307, 308 
636, 637 
392, 397 
. 395 
. 538 
. 374 
375, 379 
. 373 



Xll 



STATUTES CITED. 



Statutes of the Commonwealth — Con. 



1914, c. 766, 



c. 792, 



§3, 
§4, 
§5, 

§7, 



§§2, 3, 

§§ 4, 5, 8, 

§§7,8, 

c. 795, 

§ 2, . 

§ 3, . 

§ 6, . 

§ 10, 

§ 13, 

■ § 22, 

1915 (Gen.), c. 32, 
c. 98, 



c. 163, § 1, 
c. 174, 
c. 212, 
c. 227, 
c. 237, § 21, 
c. 289, § 7, 
c. 296, 

§§2,3, 



PAGE 

372, 375, 376, 379 
. 376 
373, 376 
375, 379 
. 404 
403, 404 
. 404 
299, 300 
330, 399 
. 581 
581, 400 
397, 401 
' . 585 
. 581 
. 572 
. 499 
. 466 
613, 614, 615 
. 467 
. 518 
. 547 
509, 510 
. 538 
. 496 
. 497 
. 631 



PAGE 

1915 (Gen.), c. 296, § 8, . . 498 

c. 301, §§ 5, 14, . . 551 

(Spec.), c. 326, . . 486,489 

§ 2, . . 488 

c. 335, . . .483 

1916 (Gen.), c. 98, ... 642 

§ 5, . . 644 

§ 9, . . 643 

116, § 1, . . 613 

122, § 2, . , 588 

126, . . .583 

131, . . .540 

158, §§ 1, 2, . . 621 

224, . . 562,563 

225, § 1, . 576, 577 

241, §§ 1, 10, . . 575 

242, . 567, 634, 635 
285, . . .573 

— §9, . .574 
288, § 3, . 593, 619 

— § 5, . . 574 
296, § 10, . 574, 575 
307, § 1, . . 591 

— § 7, . .592 
310, § 1, . . 615 



1907, c. 108, 
1912, c. 51, . 



Resolves. 



PAGE 

. 364 
, 395 



1913, c. 96, 

1914, c. 141, 



PAGE 

175, 176 
. 304 



Statute of 43 Elizabeth, c. 4, 



. 355 



1641-47, 
1649, . 



Colony Ordinance. 

PAGE 

. 49, 266 1660, 
. 641 



PAGE 

639 



Province Laws. 



1711, c. 5, 



PAGE 

379 



STATUTES CITED. 



XUl 



c. 80, §§ 40, 41, 75, 
c. 87, § 6, . 



Public Statutes. 



PAGE 

, 534 
, 80 



c. 87, § 7, . 
c. 222, §§ 20, 22, 



81 
229 



Revised Laws. 







PAGE 






PAGE 


C.3, §21, . 


. 238,239 


c. 50, 


§ 17, . 


. 549 


c. 6, § 58, 




. 514,583 


c. 52, 


§§9,10,11,12, 


. 185 


C.7, §1, 




. 452,453 




§26, . 


. 606 


§7, 




. 560 


c. 54, 


§§ 1, 2, . 


. 184 


C.8, §1, 




. 299 


c. 55, 


§1, . 


. 423 


§4, 




. 308, 547, 550 


c. 56, 


§70, . 


16, 100, 101, 390 


§4, cl 


3, . 


. 321,351 




§§40,70, . 


. 637 


§5,cl 


16, . 


. 343 




§§ 51-67, . 


. 391 


§5,cl 


25, . 


. 316 




§§ 51-69, . 


. 101 


c. 12, § 4, 




. 499 


c. 57, 


§21, . 


. 27 


§5, cl 


3, . 


. 353 


c. 62, 


§3, . . 


. 28 


■ §6, 




. 192 




§18, . 


. 127, 128, 129 


c. 13, § 35, 




. 548 




§ 43, . 


. 182 


c. 19, . 




. 619, 620 


c. 64, 


§4, . 


. 424 


§9, 




213, 329, 331 


c. 65, 


§ 13, . 


. 633 


§13, 




. 173, 174 




§§ 13-29, . 


. 515 


§17, 




. 490, 491 




§14, . 


. 634 


c. 25, . 




. 540 




§15 . 


633, 634, 636 


§77, 




. 445 




§§16,19, . 


. 634 


c. 26, § 2, 




. 540 




§ 19, . 


. 567,634 


c. 29, § 1, par. 2, . 


. 126 


c. 67, 


§§25,28, . 


365, 366, 367 


§§10,12, . 


. 406 


c. 69, 




. 466 


c. 32, §§ 9, 10, . 


. 379,380 


c. 75, 


§1, .' ' 


. 298,404 


§§14,15, . 


. 545 




§2, . 


. 404 


§28, . 


. 381 




§3, . 


. 299, 404 


§65, 




. 545 




§42, . 


. 534 


§§71- 


77, : 


. 429 




§52, . 


. 475 


§73, 




. 428,544 




§57, . 


. 474 


c. 39, §19, 




. 353 




§ 100, 


. 157 


c. 42, § 9, 




. 343 




§ 113, 


. 403,404 


§18, 




. 419 




§ 122, 


. 404 


§19, 




. 420 




§ 139, 


. 627 


§43, 




. 323 




§§ 136-139, 


. 626 


c. 44, . 




. 626 


c. 76, 


§3, . 


. 407 


§6, 




. 625,627 




§§ 8, 9, . 


. 432,434 


c. 48, §45, 




. 185 




§§14,18, . 


. 110 


§65, 




. 15 


c. 77, 


§26. . 


. 551 


c. 49, §§ 23, 33, 45, 


. 548 


c. 78, 


§38, . 


. 406 


c. 50, § 10, . 


. 


. 548 


c. 79, 


§§ 18, 19, . 


613, 614, 615 



XIV 



STATUTES CITED. 



Revised Laws — Con. 





PAGE 










PAGE 


c. 81, §§ 17, 18, 


. 569 


c. 102, 


§78, . . . .19 


§§ 19, 32, 33, . . 569, 571 




§113, 






. 405 


c. 86, §22, . 


. 629 


c. 108, 


§36, 






. 424 


c. 87, § 120, 


. 589 


c. 109, 


§1, • 






. 530 


c. 91, §§ 14, 15, 


. 641,642 




§3, . 






. 274 


§§23,24,2^ 


), . . . 640 


c. Ill, 


§46, 






. 92 


c. 92, § 14, . 


. 518,519 


c. 116, 


§3, . 






. 190 


c. 96, § 14, . 


. 487 




§34, 






9,10 


§ 16, . 


. 487, 488 


c. 119, 


§12, 






. 403 


§ 17, . 


487, 488, 525, 526 


c. 121, 








392, 393 


§18, . 


. 169 




§§ 34, 35, 






. 395 


§22, . 


. 526, 527, 528 


c. 124, 


§1, . 






. 123 


§23, . 


. 488 


c. 125, 


§2, . 






. 353 


§24, . 


. 526 


c. 128, 


§§ 93, 94, 1 


LOO, 




. 18 


§25, . 


. 170 


c. 151, 


§11, 






. 176 


§27, . 


. 640 


c. 160, 


§9, . 






. 638 


c. 97, . 


. 450 




§§11,12,' 


'0, 




. 295 


§§15-23, 


. 449, 451 


c. 165, 


§37, 






. 195 


c. 100, §17, . 


. 61 


c. 175, 


§21, 






. 491 


§22, ; 


. 111,492 


c. 204, 


§29, 






. 52 


§23, . 


62, 63, 111 


c. 206, 


§5, . 






. 470 


§42, . 


. 423 


c. 217, 


§83, 






. 467 


§47, . 


. 61 


c. 223, 


§30, 






. 490 


§§48-51, 


. 430 


c. 225, 


§§ 63, 65, ( 


)6, 




332, 333 


§55, . 


. 309, 310 




§§ 113, lit 


» 




. 229 


c. 102, § 40, 


. 424 




§117, 






. 623 


§41, 


. 563 




§128, 






. 624 


§§ 57-68, 


. 563 




§129, 






229, 624 


§59, 


. 423' 













CASES CITED. 



XV 



Table of Cases cited in this Volume. 



Adair v. United States, 208 U. S. 

161, 173, 23 

Adams v. Adams, 100 Mass. 365, . 178 

V. Holt, 214 Mass. 77, . . 177 

.lEtna Life Ins. Co. v. Hardison, 

199 Mass. 180, . . . .38 

Allgeyer v. Louisiana, 165 U. S. 

578, .... 23,254 

American Academy of Arts and 

Sciences v. Harvard College, 12 

Gray, 582, . . . .355 

Anderson v. Board of President and 

Directors of Public Schools, 26 

L. R. A. 707, . . .282 

Ashby V. Eastern Railroad Co., 

5 Met. 368, . . .50 

Asylum v. Phoenix Bank, 4 Conn. 

172, 359 

Atkin V. Kansas, 191 U. S. 207, 223, 24 
Attorney-General v. Ellis, 198 Mass. 

91, : 170 

V. McCabe, 172 Mass. 417, . 492 

V. New York, New Haven and 

Hartford R.R. Co., 198 Mass. 

413, 369 

V. Revere Copper Co., 152 

Mass. 444, . . . .526 

Baker's Appeal, 108 Pa. St. 510, . 493 
Ball V. Wyeth, 99 Mass. 338, . 543 

Baltimore & Ohio R.R. Co. v. Inter- 
state Commerce Commission, 221 

U. S. 612, 619, . . . .71 
Bandel v. Department of Health of 

City of New York, 127 App. Div. 

382; 193 N. Y. 133, . .406 

Bank of Augusta v. Earle, 13 Pet. 

519, .... 241,242 

Barnes v. Mayor of Chicopee, 213 

Mass. 1, 260 



PAGE 

Barron v. Smith, 108 Md. 317, . 393 
Bath V. Freeport, 5 Mass. 325, . 590 

Bellows Falls Power Co. v. Com- 
monwealth, 222 Mass. 51, . . 555 
Bickford v. Richards, 154 Mass. 163, 345 
Bigelow V. Bemis, 2 Allen, 496, . 543 

V. Randolph, 14 Gray, 541, . 201 

Black V. Commissioners of Bun- 
combe County, 129 N. C. 121, . 44 
Blair v. Chicago, 201 U. S. 400, . 274 
Blood V. Nashua & Lowell R.R. Co., 

2 Gray, 137, . . . .526 

Bohnen v. Metz, 126 App. Div. 

(N. Y.) 807; 193 N. Y. 676, . 444 
Boston V. Brookhne, 156 Mass. 172, 185 

V. Richardson, 105 Mass. 351, 

359, 50 

V. Schaffer, 9 Pick. 415, . . 189 

Boston & Roxbury Mill Corp. v. 

Newman, 12 Pick. 467, . . 50 

Boston & Worcester R.R. Corp. v. 
Old Colony R.R. Corp., 12 Cush. 

605, 236 

Boston Loan Co. v. Boston, 137 

Mass. 332, . . . .502 

Boston Molasses Co. v. Common- 
wealth, 193 Mass. 389, . . 279 
Bourne v. Joint Board of Commis- 
sioners, 221 Mass. 293, . . 595 
Braceville Coal Co. v. People of the 

State of Illinois, 147 III. 66, . 284 

Braynard v. Marshall, 8 Pick. 194, . 198 
Brickett v. Haverhill Aqueduct Co., 

142 Mass. 394, . . . .249 

Brightman v. JEtna Ins. Co., 220 

Mass. 17, .... 429 

Brodbine v. Revere, 182 Mass. 598, 

600, . .42, 43, 44, 187 

Browm v. Lowell, 8 Met. 172, . . 155 



XVI 



CASES CITED. 



Brown v. Mullica Township, 48 

N. J. L. 447, . . . .394 

V. Murdock, 140 Mass. 214, . 534 

Burke v. Holyoke Board of Health, 

219 Mass. 219, . . . .498 

Burnham v. Morrissey, 14 Gray, 226, 566 
Butler V. Attorney-General, 195 

Mass. 79, 83, . . . ,50 
Coble V. State, 31 Oh. St. 100, . 492 
CampbeU v. Holt, 115 U. S. 620, . 543 
Carr v. Riley, 198 Mass. 70, . . 324 
Gassier v. Fales, 139 Mass. 461, . 630 
Chapin et al. v. Town of Lincoln, 

217 Mass. 336, . . . .262 
Charles River Bridge v. Warren 

Bridge, 7 Pick. 344, . . .273 
Chase v. Boston, 193 Mass. 522, . 502 
Chesley v. Nantasket Beach Steam- 
boat Co., 179 Mass. 469, . . 198 
Chicago, Burlington & Quincy R.R. 

Co. V. McGuire, 219 U. S. 549, 

569, . . . .23, 69, 72 

City of Boston i. Lecraw, 17 How. 

434, 362 

CoUister v. Hayman, 183 N. Y. 253, 520 
Colorado Paving Co. v. Murphy, 

37 L. R. A. 630, . . .281 

Commissioners v. Holyoke Water 

Power Co., 104 Mass. 446, . 274, 530 
Commonwealth v. Alger, 7 Gush. 53, 

79, 49,51 

V. Bennett, 108 Mass. 27, . 43 

V. Boston Advertising Co., 188 

Mass. 348, . . . .415 
V. Boston Terminal Co., 185 

Mass. 281, . . .526 
V. Breakwater Co., 214 Mass. 

10, 582 

V. Breed, 4 Pick. 460, . . 526 

V. Cooley, 10 Pick. 37, . . 310 

V. Curtis, 9 Allen, 266, . . 185 

V. ElUs, 158 Mass. 555, . . 554 

V. Emerson, 165 Mass. 146, . 218 

V. Hamilton Mfg. Co., 120 

Mass. 383, . . . .24 

V. Hana, 195 Mass. 262, . 424 

V. Jewelle, 199 Mass. 558, . 434 



Commonwealth v. Jones, 142 Mass. 

573, 576, 124 

V. Kelly, 177 Mass. 221, . 314 

V. Kingsbury, 199 Mass. 

542, .... 186, 189 

V. McCafferty, 145 Mass. 384, 554 

V. McGann, 213 Mass. 215, . 423 

V. Martell, 200 Mass. 482, . 523 

V. New Bedford Bridge, 2 

Gray, 339, . . .273 
V. Old Colony & FaU River 

R.R. Co., 14 Gray, 93, . . 185 
V. Peoples Express Co., 201 

Mass. 564, . . . .198 

V. Perry, 155 Mass. 117, 139, 253, 

254, 255, 282, 284, 523 



— V. Phelps, 210 Mass. 78, . 

— V. Porn, 195 Mass. 443, . 

— V. Riley, 210 Mass. 387, 

— V. Roxbury, 9 Gray, 451, 

— V. Sisson, 178 Mass. 578; 
Mass. 247, 

— V. Stodder, 2 Cush. 562, 

— V. Strauss, 191 Mass. 545, 



. 198 

. 434 

. 24 

49, 640 

189 

42, 218 

. 185 

140, 

560, 561 

. 51 

51, 269 



V. Tewksbury, 11 Met. 55, 

V. Vincent, 108 Mass. 441, 

V. Weatherhead, 110 Mass. 

175, 51 

V. Wilhamstown, 156 Mass. 70, 277 

V. Worcester, 3 Pick. 462, . 491 

Conley v. Lackawanna L-on & Steel 

Co., 88 N. Y. Supp. 125, . . 427 
Connolly v. Union Sewer Pipe Co., 

184 U. S. 540, . . . .424 

Connor v. City of New York, 2 

Sandford, 355, . . . .260 
Cooley V. Board of Wardens of Port 

of Philadelphia, 12 How. 144, . 367 
Coosaw Mining Co. v. South Caro- 

hna, 144 U. S. 550, . . .275 
Copeland v. Springfield, 166 Mass. 

498, .... 155,393 

Cotter V. Doty, 5 Ohio, 393, . . 254 
Crowninshield v. Crowninshield, 187 

Mass. 221, . . . . 189 

Gushing ?;. Worrick, 9 Gray, 382, . 313 



CASES CITED. 



XVU 



Danforth v. Groton Water Co., 178 

Mass. 472, . . . .543 

Dartmouth College v. Woodward, 

4 Wheat, 518, . . . 243,530 

Davidson v. Boston & Maine R.R., 

3 Cush. 91, 105, . . 50, 235 

Davol V. Davol, 13 Mass. 264, . 177 

Denham v. County Commissioners, 

108 Mass. 202, . . . .15 

Devney's Case, 223 Mass. 270, . 546 
Dexter v. Blackden, 93 Me. 473, . 254 
Donaghy v. Macy, 167 Mass. 178, . 260 
Downey v. Bender, 57 App. Div. 

(N. Y.) 310, . . . .444 
Dresel v. Jordan, 104 Mass. 407, 417, 14 
Drury v. Midland R.R., 127 Mass. 

571, 50 

Dunbar v. Boston & Providence 

R.R., 181 Mass. 383, . . 543 

Dwyer v. New York, New Haven & 

Hartford R.R. Co., 209 Mass. 419, 237 
Ehot «. McCormick, 144 Mass. 10, . 198 
Ems V. Hudson, 36 Mont. 135, . 44 
Essex Co. V. Lawrence, 214 Mass. 

79,87, 85 

Evans v. Foss, 194 Mass. 513, . 325 

Ewen V. Thompson Starrett Co., 

208N. Y. 245, . . . 444,445 

Erving v. Burnet, 11 Pet. 41, . 313 

Ex parte Burnside, 86 Ky. 423, . 44 

Quarg, 149 Cal. 79, . 208, 520 

Fallbrook Irrigation District v. 

Bradley, 164 U. S. 112, . . 43 

Farr Alpaca Co. v. Commonwealth, 

212 Mass. 156, . . . .502 
Fay V. Salem & Danvers Aqueduct 

Co., Ill Mass. 27, . . 267,268 
Fitchburg R.R. v. Boston & Maine 

R.R., 3 Cush. 88, . . . 529 
Fitzgerald v. Mayor of Boston, 220 

Mass. 503, . . . .469 

Flagg V. Flagg, 16 Gray, 175, . . 15 
Friberg v. Builders Iron & Steel Co., 

201 Mass. 458, . . . .314 
Frorer v. People, 141 111. 171, . 255 

Gage V. Stein Krauss, 131 Mass. 

222, 169 



Gallagher v. Hathaway Mfg. Co., 

172 Mass. 230, . . . .345 

Gardner Water Co. v. Inhabitants 

of Gardner, 185 Mass. 190, . 269 

Gaw V. Ashley, 195 Mass. 173, . 148 

Georgia R.R. & Banking Co. v. 

Smith, 128 U. S. 174, . . 275 

Gillman v. State, 165 Ala. 135, . 492 
Greeley v. Hamman, 12 Colo. 99, . 491 
Greenwood v. Freight Co., 105 U. S. 

13, 530 

Hammond v. Hyde Park, 195 Mass. 

29, 627 

Hampden County v. Morris, 207 

Mass. 167, . . . .197 

Harmon v. Inhabitants of New 

Marlborough, 9 Cush. 525, . 535 

Haverhill v. Marlborough, 187 Mass. 

155, 1 

Heathman v. Hall, 3 Iredell, 414, . 308 
Henry v. Newburyport, 149 Mass. 

582, 585, 50 

Hickory Tree Road, 43 Pa. 139, . 393 
Hill V. Boston, 122 Mass. 344, . 201, 344 
Hillsdale College v. Rideout, 82 

Mich. 94, .... 305 

Hittniger v. Fames, 121 Mass. 539, 169 
Holbrook v. Holbrook, 1 Pick. 248, . 591 
Holden v. Hardy, 169 U. S. 366, 24, 

25,71 
Home for Aged Women v. Common- 
wealth, 202 Mass. 422, . 237, 526 
Hosmer v. Lovelan, 19 Barbour 

(N. Y.), Ill, . . . .442 

Hunt V. Lucas, 99 Mass. 404, . 202 

lU. Cent. R.R. Co. v. La. R.R. Com., 

236 U. S. 157, . . . .479 
In re Dr. Munroe, 5 Mad. Ch. R. 

379, 167 

Goddard, 16 Pick. 504, . . 491 

James CarroU, 11 Chic. Leg. 

News, 14, 441 

In re Northampton, 158 Mass. 

299, 200 

Jackson v. State, 131 Ala. 21, . 43 

Jennings v. Menaugh, 118 Fed. Rep." 

612, 124 



XVlll 



CASES CITED. 



John P. Squire & Co. v. Tellier, 185 

Mass. 18, .... 521 

Johnson v. Walker, 155 Mass. 253, . 514 
Joseph V. Bigelow, 4 Cush. 82, 84, . 14 
Jones V. Jones, 18 Me. 308, . . 177 

V. Robbins, 8 Gray, 329, . 630 

Kansas v. Colorado, 206 U. S. 46, 

250, 251 
Keefe v. Lexington & Boston Street 

Ry. Co., 184 Mass. 183, 185, . 47 
Keene t;. Stetson, 5 Pick. 492, 495, . 50 
Keith V. Maguire, 170 Mass. 210, . 609 
Kentucky v. Dennison, 24 How. 

66, 439 

Ketchum v. City of Buffalo, 14 N. Y. 

356, 146 

Kilty V. Railroad Commissioners, 

184 Mass. 310,311,312, . . 92 

King V. Inhabitants of Barham, 8 

Barn & C, 99, . . . . 312 

Kittredge v. North Brookfield, 138 

Mass. 286, . . . .277 

Knoxville Water Co. v. Knoxville, 

200 U. S. 22, . . . . 275 

Koch V. State, 126 Wis. 470, 478, . 492 
Lahar v. Eldridge, 190 Mass. 504, . 128 
Lakeman v. Burnham, 7 Gray, 437, 

441, 51 

Lee V. Massachusetts Ins. Co., 6 

Mass. 208, . . . .14 

Little V. Holyoke, 177 Mass. 114, . 202 
Livermore v. Waite,102 Cal. 113, . 393 
Locke V. Motley, 2 Gray, 265, . 50 

Lochner v. New York, 198 U. S. 45, 

23, 25, 71 
Logan V. FideUty & Casualty Co., 

146 Mo. 114, . . .507 

Lord V. County of Essex, 98 Mass. 

484, 514 

Louisiana v. Pillsbury, 105 U. S. 

278, .... 36,273 

Louisville & Nashville R.R. v. Ken- 
tucky, 161 U. S. 677, . . 561 
Louisville R.R. Co. v. Wilson, 138 

U. S. 501, . . .341 

Lowell V. Boston, 111 Mass. 454, 

289, 291 



PAGE 

Lyman v. Fiske, 17 Pick. 231, . 168 

Mahar v. Steuer, 170 Mass. 454, . 492 

Manuel v. Manuel, 13 Ohio St. 
450, 299 

Martin v. CoUins, 165 Mass. 256, . 630 

McLean v. Arkansas, 211 U. S. 547, 
548, . . . .69,72 

Merchants Legal Stamp Co. v. 
Murphy, 220 Mass. 281, . . 561 

MetropoUtan Life Ins. Co. «). Insur- 
ance Commissioner, 208 Mass. 
386, . . . 41,506,508 

Missouri v. lUinois, 180 U. S. 208, . 251 

Molly Varnum Chapter D. A. R. v. 
Lowell, 204 Mass. 487, 

Moore v. Sanford, 151 Mass. 285, 

Mount Hermon Boys' School v. Gill, 
145 Mass. 139, .... 

Mulcrevy et al. v. City and County 
of San Francisco, 231 U. S. 669, . 

Murphy v. Commonwealth, 172 
Mass. 264, .... 

Myers v. Manhattan Bank, 20 Ohio, 
301, 

Nelson v. State Board of Health, 
186 Mass. 330, . -42, 189 

V. State Board of Health, 108 

Ky. 769, 

V. St. Martin's Parish, 111 

U.S. 716, .... 

New England Sanitarium v. Stone- 
ham, 205 Mass. 335, . 

New London & Northern R.R. v. 
Boston &, Albany R.R., 102 
Mass. 386,' .... 

Newton v. Newton, 188 Mass. 226, 

Nichols V. Boston, 98 Mass. 39, 

Nisbett V. Toole, 69 Minn. 104, 439, 440 

North Bridgewater Bank v. Cope- 
land, 7 AUen, 139, . . . 1 

Northwestern Fertilizing Co. v. 
Hyde Park, 97 U. S. 659, . 

Nye V. Storer, 168 Mass. 53, . 

O'Brien v. City of Woburn, 184 
Mass. 598, .... 

Ohio Railway Commission v. Worth- 
ington, 225 U. S. 101, . 480, 482 



354 
485 

354 

197 

230 

242 



407 



36 



354 



200 
185 
526 



275 
209 

492 



CASES CITED. 



XIX 



O'Keefe v. Somerville, 190 Mass. 

110, . . . 216,255,558 

Olcott V. Supendsors, 16 Wall. 678, . 277 
Old Colony Railroad Co., petitioner, 

185 Mass. 160, . . . .66 
Oliveri v. Atkinson, 168 Mass. 28, . 168 
O'MaUey v. County, 3 Kulp (Pa.), 41, 394 
Opinion of Justices (R. I.), 24 R. I. 

603, 72 

Opinion of Justices, 8 Gray, 21, . 484 

5 Met. 587, . . .168 

14 Mass. 472, . . .120 

107 Mass. 604, . . .125 

117 Mass. 603, . . .260 

122 Mass. 600, . . .44 

148 IMass. 623, . . .44 

150 Mass. 595, 598, . 44, 162 

155 Mass. 598, . . .162 

160 Mass. 587, . . .43 

163 Mass. 589, . . .24 

165 Mass. 599, . . .260 

182 ]\Iass. 605, 609, . 163, 484 

190 Mass. 605, 616, 36, 121, 382 

196 Mass. 625, . . .218 

204 Mass. 607, . . 291, 485 

207 Mass. 601, . .198 

208 Mass. 607, . 44, 198, 558 

210 Mass. 610, . . .120 

211 IMass. 630, . . .44 

214 Mass. 599, . . 420, 559 

Packard v. Ryder, 144 Mass. 440, . 51 
Page V. Page, 189 Mass. 85, . . 178 
Parker v. Boston & Maine R.R., 3 

Cush. 107, . . . .271 

V. Parker, 211 Mass. 139, . 178 

Paul V. Virginia, 8 Wall. 168, . 242 

Peik V. Chicago, etc., Ry. Co., 94 

U. S. 164, . . .275 

Pembina Mining Co. v. Pennsyl- 
vania, 125 U. S. 181, . . .530 
People V. Board of Aldermen, 42 
N. Y. Supp. 545, . .321 

V. Coldnell, 168 N. Y. 671, . 254 

V. Fitch, 154 X. Y. 14, . . 358 

V. Flinn, 189 X. Y. 180, . 520 

V. Gnison, 109 X. Y. 389, . 255 

V. Jackson, 8 Mich. 110, . 491 



People V. Manistee Co., 26 Mich. 

422, 492 

V. New York, 161 N. Y. 233, . 357 

V. Powers, 231 lU. 560, . . 520 

V. Saline, 176 111. 165, . . 44 

V. Steele, 231 111. 340, . . 520 

V. Wenzel, 105 Mich. 70, . 394 

Peoples Ice Co. «;. Davenport, 149 

Mass. 322, . . . .169 

Pine et als. v. Xew York City, 112 

Fed. Rep. 98; 185 U.S. 93, . . 245 
Pine Grove Township v. Talcott, 

19 WaU. 666, . . . .277 
Pitney v. Washington, 240 U. S. 387, 558 
Plumley v. Massachusetts, 155 U. S. 

461, 521 

Portland Bank v. Apthorp, 12 Mass. 

252, 216 

Pratt V. Davis, 224 111. 300, . . 532 
Prentice v. Dehon, 10 Allen 353, . 543 
Price t . Maxwell, 28 Pa. 23, . . 355 
Prince v. Crocker, 166 Mass. 347, 

276, 277 
Providence Steamboat Co. v. Fall 

River, 183 Mass. 535, . . 200 

Quinlan v. H. & T. C. Ry. Co., 89 

Tex. 356, 393 

Raihoad Co. v. Otoe, 16 Wall. 667, . 277 
Rast v. Van Deman, 240 U. S. 342, . 558 
Re Argus Printing Co., 1 N. D. 434, 493 
Rea V. Aldermen of Everett, 217 

Mass. 427, . . . 431, 432 

Rhode Island v. IMassachusetts, 12 

Pet. 657, 251 

Richardson v. State, 66 Ohio 108, . 205 
Riverbank Improvement Co. v. 

Bancroft, 209 Mass. 217, . . 621 

Rockport V. Webster, 174 Mass. 385, 

267, 268, 271 
Rowell V. Doyle, 131 Mass. 474, . 169 
Ruhstrat v. People, 49 L. R. A. 181, 255 
Runyan v. Coster's Lessee, 14 Pet. 

122, 242 

Russell V. Howe, 12 Gray, 147, . 44 

Rutter i. Sullivan, 25 W. Va. 427, . 44 
Salisburj- Land & Improvement Co. 

V. Commonwealth, 215 Mass. 371, 516 



XX 



CASES CITED. 



PAGE 

Sears v. Boston, 1 Met. 250, . . 167 
Seibert v. Lewis, 122 U. S. 284, 290, 36 
Selectmen of Wellesley v. Boston & 
Worcester St. Ry. Co., 188 Mass. 

250, 47 

Shannon v. Shannon, 2 Gray, 285, . 178 
Shaw V. Spencer, 100 Mass. 382, 395, 40 
Simpson v. Story, 145 Mass. 497, . 394 
Sim's Case, 7 Cush. 285, . . 198 

Sinking Fund Cases, 99 U. S. 700, . 530 
Slater v. Gunn, 509 Mass. 514, . 641 
Slaughter House Cases, 16 Wall. 36, 254 
Smith V. Mayor of Haverhill, 187 

Mass. 323, . . . .128 

Smith V. Porter, 10 Gray, 66, 68, . 14 
Somerset v. Dighton, 12 Mass. 383, 1 
Southern Pacific Terminal Co. v. 
Interstate Commerce Commis- 
sion, 219 U. S. 498, . . 480, 482 
Southern Ry. Co. v. Railroad Com- 
missioners of Indiana, 236 U. S. 

439, 582 

Sprague v. Dorr, 185 Mass. 10, . 42 

V. Minon, 195 Mass. 581, 268, 271 

Spring Vale Water Works v. 

Shottler, 110 U. S. 347, . 530 

Springfield v. Connecticut River 

R.R. Co., 4 Cush. 71, . . 185 

Starkweather v. American Bible 

Society, 72 lU. 50, . . . 242 
State V. Board of Control, 85 Minn. 

189, 356 

V. Crawford, 58 Ore. 116, . 492 

V. Hooker, 22 Okla. 712, . . 299 

V. Loomis, 115 Mo. 307, . . 284 

V. Robitshek, 60 Minn. 123, . 491 

V. Standard Oil Co., 61 Neb. 28, 243 

V. Starkey, 49 Minn. 503, . 321 

Stimson v. Brookline, 197 Mass. 568, 237 
Stone V. Charlestown, 114 Mass. 214, 43 
Strouse v. American Credit Indem- 
nity Co., 91 Md. 244, . .211 
Sullivan v. Boston, 126 Mass. 540, . 201 
Supervisors of Election, 114 Mass. 
247, 54 



Sykes v. St. Louis & San Francisco 

R.R. Co., 127 Mo. App. 326, . 299 
Taft V. Adams, 3 Gray, 126, . . 260 

Talbot V. Hudson, 16 Gray, 417, . 484 
Tanner v. Little, 240 U. S. 369, . 558 
Teasdale v. Newell & SnowUng Con- 
struction Co., 192 Mass. 440, . 539 
Texas & New Orleans R.R. Co. v. 

Sabine Tram Co., 227 U. S. Ill, . 479 
Thompson v. DoUiver, 132 Mass. 

103, 493 

The Scow No. 1, 169 Fed. Rep. 717, 582 
Trowbridge v. Brookline, 144 Mass. 

139, 271 

United Firemen's Ins. Co. v. Thomas, 

82 Fed. Rep. 406, 408, . . 40 

United States v. Knight, 14 Peters, 

315, 433 

V. Morris, 14 Peters, 464, 475, 119 

Walcott V. Swampscott, 1 Allen, 101, 345 
Waltham Bank v. Waltham, 10 Met. 

334, 502 

Waters-Pierce Oil Co. v. Texas, 177 

U. S. 28, 243 

Watuppa Reservoir Co. v. Fall 

River, 147 Mass. 548, 557, . .51 
Warren v. Para Rubber Shoe Co., 

166 Mass. 97, . . . . 209 
Wellington, petitioner, 16 Pick. 96, . 484 
West Roxbury v. Stoddard, 7 Allen, 

158, 640 

Weston V. Sampson, 8 Cush. 347, 

354, 51 

White V. PhiUipston, 10 Met. 108, . 345 
Worcester v. Piatt, 128 Mass. 367, 

372, 40 

V. Wilbraham, 13 Gray, 586, . 168 

Worden v. New Bedford, 131 Mass. 

23, 202 

Work V. Corrington, 34 Ohio State, 

64, 438 

Wright V. Oakley, 5 Met. 400, . 395 

Wyeth V. Cambridge Board of 

Health, 200 Mass. 474, 481, . 42 
V. Richardson, 10 Gray, 240, . 440 



OPINIONS 

OP 

JAMES M. SWIFT, ATTOENEY-GENERAL. 



Statute — Limit of Time for holding Articles of Food 
IN Cold Storage — Prospective in Effect. 

The provision of St. 1912, c. 652, § 5, that "no article of food shall be held in cold 
storage within this commonwealth for a longer period than twelve calendar 
months, except with the consent of the state board of health as hereinafter 
provided," is not retroactive in effect and is not applicable to goods received 
into cold storage previous to Sept. 1, 1912, the date upon which such statute 
took effect. 

You have requested my opinion as to whether, under section To the 
5 of chapter 652 of the Acts of 1912, providing that "no article of Health. 
of food shall be held in cold storage within this commonwealth .January i. 
for a longer period than twelve calendar months, except with 
the consent of the state board of health as hereinafter pro- 
vided," with reference to goods received into cold storage 
previous to Sept. 1, 1912, the period of twelve calendar months 
is to be construed as running from the date when the food was 
actually received into cold storage or from the first day of 
September, 1912, the day upon which, under the provisions of 
section 12, the act took effect. 

In my opinion the period of twelve months is to be consid- 
ered as running only from the first day of September, 1912. 
Statutes are considered prospective unless the language is such 
as to show clearly that they were intended to be retrospective. 
North Bridgewater Bank v. Copeland, 7 Allen, 139; Haverhill 
v. Marlborough, 187 Mass. 155; Somerset v. Dighton, 12 Mass. 
383. The statute in question contains no provision indicat- 
ing that it was the intent of the Legislature that it should 
have a retroactive effect. On the contrary, section 12 contains 
the simple and unqualified provision that the act shall take 
effect on the first day of September, 1912. 



OPINIONS OF THE ATTORNEY-GENERAL. 

For the purposes of administration of the law, it would seem 
that no other construction is possible. Section 4 provides that 
all articles of food when deposited in cold storage shall be marked 
plainly with the date of receipt on the containers in which they 
are packed, but it would hardly be practicable to determine the 
date of receipt of goods received into storage before Sept. 1, 
1912, in the absence of such markers. 



Solitary Confinement — Juvenile Reformatory School — 
Inmate — Officer — "Constant Supervision." 

Under the provisions of St. 1911, c. 265, § 1, that "it shall be unlawful for the 
officers of any juvenile reformatory school to place an inmate in any cell, 
room or cage in solitary confinement," the term "solitary confinement" 
imports an involuntary restraint in solitude, as a disciplinary penalty for 
some offence committed ; and if the assignment of an irunate of such a school 
to a separate room is not made as a punishment for an offence committed 
while an inmate thereof, but is due merely to the segregation of inmates in 
the ordinary management and discipline of the school, or is a part of the 
treatment for the correction of moral delinquencies or physical defects, it 
does not constitute solitary confinement within the meaning of such provision. 

Under the further provision that, "whenever restraint or separation from the 
other iimiates is necessary, confinement shall be permitted only in a place 
where the inmate is under the constant supervision of an officer of the 
school," an inmate of such a school may be confined alone in a cell, room 
or cage if such confinement is not in the nature of a punishment, or may 
be confined in a cell, room or cage as a punishment, provided he is under 
the constant supervision of an officer of the school. 

The term "constant supervision," as used in St. 1911, c. 265, § 1, does not mean 
the continuous or uninterrupted presence of an officer in the same cell, room 
or cage with the inmate, but requires a special supervision or observation 
sufficiently close to keep such officer constantly informed of the conduct 
and situation of such inmate. 

Under the provisions of St. 1911, c. 265, § 1, inmates of juvenile reformatory 
schools occupying their own single bedrooms at night, with the doors closed 
and opening off and upon either side of a long corridor, are not so separated 
from the other inmates as to require constant supervision by an officer of 
such school, but if an inmate is, for disobedience, confined alone in such a 
bedroom, either with or without further physical restraint, such confine- 
ment would require the constant supervision of such officer. 



In behalf of the trustees of the Massachusetts Training 



To the 

Trustees of 

Tr'SSa^"^'^"^ Schools you have submitted to me several questions as to the 

'^ 1913 interpretation of St. 1911, c. 265, § 1, which provides as 

January 15. p n 

loliows: — 



JAMES M. SWIFT, ATTORNEY-GENERAL. 

It shall be unlawful for the officers of any juvenile reformatory school 
to place an inmate in any cell, room or cage in solitary confinement. 
Whenever restraint or separation from the other inmates is necessary, 
confinement shall be permitted only in a place where the inmate is under 
the constant supervision of an officer of the school. 

Since the answer to the seventh question is really the key to 
the answ^ers to all the questions, it may serve to simplify the 
discussion if I answer first the question which you have pro- 
pounded as the seventh. 

7. What constitutes solitary confinement in a cell, cage or room withm 
the meaning of these terms as used in said statute? 

The term "solitary confinement," in its ordinary use, has a 
technical meaning, of w^hich the essential element is involun- 
tary restraint in solitude as a disciplinary penalty for some 
offence committed. The restraint is usually in a special place, 
stripped of bodily comforts except such as are necessary to 
maintain health, and designed in the simplicity of its equip- 
ment to have, so far as possible, a chastening effect upon the 
occupant. The solitude consists not only of being alone but of 
being deprived of intercourse with others except for the con- 
veyance of food and other necessary purposes. 

The term as used in this statute is, in my opinion, to be con- 
strued as used in its technical sense so far as that construc- 
tion is consistent W'ith the other terms of the act. Assuming 
that the act w^as intended to apply to the Industrial School for 
Girls, the Legislature must be presumed to have had knowledge 
of the tendencies of many of the inmates of the school and of 
the methods of administration which it is necessary to adopt 
to meet and correct those tendencies. The Legislature must also 
be presumed to have knowledge of the fact that the con- 
struction of the buildings of the institution is specially adapted 
to the needs of the inmates, w^ith single rooms opening from 
common corridors. The statute is to be construed reasonably 
and in accordance with the intent of the Legislature so far as 
that intent may be determined. In the absence of express 
provision to accomplish the result, it is not to be supposed that 



OPINIONS OF THE ATTORNEY-GENERAL. 

the Legislature, by the enactment of this statute, intended to 
affect the normal administration of the school, or to alter the 
methods by which the needs of the inmates were ministered 
unto, or to cause to be changed the physical structure of the 
buildings. The effect of the statute is merely to prohibit the 
trustees from using certain recognized forms of punishment for 
offences committed in the school. If the assignment of an in- 
mate to a single, separate room is not made as a punishment 
for an offence committed while an inmate of the school, but is 
merely due to the segregation of inmates in the ordinary man- 
agement and discipline designed for the benefit of all the 
inmates of the school, or is a part of the ordinary treatment for 
the correction of moral delinquencies or physical defects, it does 
not constitute solitary confinement within the meaning of the 
act. 

Resuming, then, the order in which the questions have been 
asked by you : — 

1. Does this act absolutely prohibit the placing of an inmate of a juvenile 
reformatory institution alone, by himself or by herself, in "any cell, room 
or cage? " Or does it permit it when the inmate is under " constant super- 
vision" of an officer? 

In my opinion the statute does not prohibit the placing of an 
inmate of a juvenile reformatory institution alone in a room if 
it is not done as a punishment. It does not prohibit placing 
such inmate alone in a cell, room or cage, if, while kept in the 
cell, room or cage, he or she is under the constant supervision 
of an officer, for the reason that if he or she is under the 
constant supervision of an officer, as "constant supervision" is 
hereafter defined, he or she is not technically in solitary 
confinement. 

2. What does the phrase "constant supervision" of an officer, as used 
in this statute, mean? Does it mean absolutely the continuous or unin- 
termittent presence of an officer with the inmate, or does it mean only a 
special supervision or observation, intermittent, but at regular or recurring 
intervals, sufficiently frequent to secure the well-being of the inmate? If 
an intermittent or recurring period is sufficient, how long may this inter- 
mission be? 



JAMES M. SWIFT, ATTORNEY-GENERAL. 

In my opinion the term "constant supervision" does not 
mean tlie continuous or unintermittent presence of an officer in 
the same cell, room or cage with the inmate, but rather a 
sj)ecial supervision or observation of the inmate, sufficiently 
close and immediate to keep the officer informed of the conduct 
of the inmate and to insure detection of any act or attempt of 
the inmate which might affect his or her well-being. The 
statute does not by its terms require that the confinement shall 
be in the actual presence of an officer, and the usual distinction 
between a thing done by or in the presence of a person and a 
thing done under the supervision of a person is not to be over- 
looked in the construction of this statute. The question as to 
the degree in which the observations may be intermittent is, of 
course, purely a matter of administration of the school which 
will be affected by consideration of the peculiar characteristics 
and requirements of each individual offender. It is, therefore, 
impossible for me to express an opinion in a form more specific 
than that the supervision shall be sufficiently constant and im- 
mediate to meet the needs of each individual case. 

3. Are inmates occupying their own single bedrooms at night with the 
doors closed, and opening off, on either side of, a long corridor, so "sep- 
arated from the other inmates" as to require "constant supervision of an 
officer" within the meaning of this statute? (It may be assumed in this 
question that officers occupy bedrooms on the same floor.) 

Assuming that the inmates are merely occupying their own 
bedrooms in the usual course of their life at the school, and not 
as a penalty for an offence committed at the school, the question 
is, in my opinion, clearly to be answered in the negative. The 
mere fact that the inmates occupy single bedrooms does not of 
itself constitute separation as contemplated by the act. 

4. Does the situation where inmates are sent for disobedience to their 
own bedrooms, alone, and told to close the door and remain within, with- 
out other means of detention, constitute solitary confinement in a "cell, 
room or cage" within this act? Does such a situation call for "constant 
supervision of an officer?" 



OPINIONS OF THE ATTORNEY-GENERAL. 

Considering the phraseology of the statute, including the word 
"room," without qualification, as a contemplated place of con- 
finement, I am of the opinion that the trustees should adopt a 
construction of the statute requiring constant supervision in 
such a situation as that presented by this question. Here, again, 
the nature of the constant supervision required would vary ac- 
cording to the disposition of the inmate, the seriousness of the 
offence committed, and the temper of the inmate at the time of 
confinement. The supervision required by the statute in this 
situation will naturally differ widely from that required in the 
case of an inmate locked in a room and restrained in such a 
manner as to prevent physical violence. 

5. If an inmate is in his or her own single bedroom for cause, and is 
handcuffed or otherwise restrained there, to prevent harm to him or 
herself, or to prevent destruction of the furniture or property in the room, 
does this bedroom become "a ceU, room or cage" within this act? 

While the inmate's own room could not be considered as a 
place of solitary confinement except under the phraseology of 
an act manifestly aimed at limiting and restricting the use of 
the ordinary modes of discipline, I am of the opinion that the 
term "cell, room or cage" should be considered by the trustees 
as sufficiently broad to include the inmate's own bedroom, and 
that therefore the inmate so restrained should be given such 
constant supervision as would be adapted to the needs of the 
situation. 

6. Is sending one or more inmates to the third floor of a cottage to sleep 
in single bedrooms (the rooms being more isolated than in question 3), 
the doors of which are not locked, but in which the inmate is supposed 
to remain for the night with the door closed, either such separation from 
the other inmates, or such restraint, or such confinement, within the words 
of this act, as to require the "constant supervision" as used in this act? 

If the word "sending" is to be considered as having merely 
the meaning of "assigning," and such assignment of rooms is 
not made as a penalty for an offence, I am of the opinion that 
the assignment is not subject to the provisions of the statute. 



JAMES M. SWIFT, ATTORNEY-GENERAL. 

If, however, the word "sending" is to be considered as having 
the significance of sending as a penalty for an offence, I am of 
the opinion that whether the doors of the rooms to which the 
inmates are sent are locked or unlocked, constant supervision, 
as applicable to the circumstances of the case, is required by the 
terms of the act. 



City and Town — Regulation of Traffic — Vehicles — 
Massachusetts Highway Commission — Approval. 

An ordinance of a city regulating the use of the streets, sidewalks and highways 
therein, and relating to vehicles of all kinds, both "motor and horse-drawn," 
does not require the approval of the Massachusetts Highway Commission 
under the provisions of St. 1909, c. 534, § 17, that "the city council of a 
city . . . may make special regulations as to the speed of motor vehicles 
and as to the use of such vehicles upon particular ways, and may exclude 
such vehicles altogether from certain ways; provided, however, that no 
such special regulation shall be effective . . . until after the Massachusetts 
highway commission shall have certified in writing, after a public hearing, 
that such regulation is consistent with the public interests." 

Your letter of December 19 states that the Massachusetts to the 
Highway Commission has received " a copy of an ordinance and HrgSlay*^^^ 
amendment thereto regulating the use of the streets, sidewalks °°i9ir* 



and highways in the city of Lawrence, this ordinance relating 
to vehicles of all kinds, motor and horse-drawn. The city 
authorities have referred the matter to the commission, a ques- 
tion having arisen as to whether or not the ordinance should be 
submitted to this Board for its approval or otherwise, under the 
provisions of section 17, chapter 534 of the Acts of 1909," and 
you inquire whether or not the approval of the commission is 
required in the premises. 

The section to which you refer, so far as material, provides 
as follows : — 

The city council of a city or the board of aldermen of a city having no 
common council, and the selectmen of a town, and boards of park com- 
missioners, as authorized by law, may make special regulations as to the 
speed of motor vehicles and as to the use of such vehicles upon particular 
ways, and may exclude such vehicles altogether from certain ways; pro- 
vided, however, that no such special regulation shall be effective unless it 
shall have been published in one or more newspapers, if there be any, pub- 



January 16. 



OPINIONS OF THE ATTORNEY-GENERAL. 

lished in the city or town in which the way is situated, otherwise in one or 
more newspapers pubUshed in the county in which the city or town is sit- 
uated; nor unless notice of the same is posted conspicuously by the city, 
town, or board of park commissioners making the regulation at points 
where any way affected thereby joins other ways; nor until after the 
Massachusetts highway commission shall have certified in wTiting, after a 
public hearing, that such regulation is consistent with the public inter- 
ests; . . . 

In my opinion this provision was not intended to require that 
regulations relating to the use of public streets and general regu- 
lations of traffic thereon should be approved by the Massachu- 
setts Highway Commission and is applicable only to special 
regulations as to the speed of motor vehicles and as to the use 
of such vehicles upon particular ways, including their exclusion 
therefrom. Since the particular ordinance submitted to said 
commission involves a general regulation of traffic, and is not a 
special regulation applicable only to motor vehicles, it follows 
that the Massachusetts Highway Commission is not required to 
certify in writing that such ordinance is consistent with the 
public interests. 



Trust Company — Savings Department — I^oan to Single 

Individual. 

The limitation in R. L., c. 116, § 34, relating to trust companies, that "the total 
liabilities of a person, ... for money borrowed, ... to such corporations 
having a capital stock of five hundred 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," is inconsistent with the subsequent 
provision in St. 1908, c. 590, § 68, regulating the investment of deposits in 
savings banks and the income thereof, that such deposits and income may 
be invested "in loans of the classes hereafter described, payable and to be 
paid or renewed at a time not exceeding one year from the date thereof; but 
not more than one-third of the deposits and income shall so be invested, nor 
shall the total liabilities to such corporation of a person, partnership, asso- 
ciation or corporation for money borrowed upon personal security . . . 
exceed five per cent of such deposits and income," which provision is made 
applicable to the savings departments of trust companies by St. 1908, c. 520, 
§ 2, and with respect to deposits and income in the savings department of 
a trust company is repealed by the provision in § 16 of the latter statute, 
that "all acts and parts of acts inconsistent herewith are hereby repealed." 
It follows that the deposits and income in the savings department of such 



JAMES M. SWIFT, ATTORNEY-GENERAL. 

trust companj^ may be loaned to a person, partnership, association or cor- 
poration to the amount of 5 per cent, of such deposits and income, provided 
that the borrower is not otherwise indebted to the trust company. If, 
however, a person, partnership, association or corporation borrows to the 
extent of 5 per cent, of such deposits and income, no further loans may be 
obtained from the corporation either in its savings department or in its 
commercial department; and if the loan has already been secured through 
the commercial department in accordance with the provisions of R. L., 
c. 116, § 34, the amount so obtained must be considered in determining the 
amount of any loan from the savings department so that the combined sum 
of the indebtedness shall not exceed 5 per cent, of the deposits and income 
of the savings department. 



You have submitted for my consideration an inquiry relating To the Bank 

Commission 

1913 
February 5. 



to the appUcation of R. L., c. 116, § 34, to the savings depart- 1913 



ment of a trust company. This provision is as follows :- 

The total liabilities of a person, other than cities or towns, for money 
borrowed, including in the liabilities of a firm the liabilities of its several 
members, to such corporations (trust companies) having a capital stock 
of five hundred thousand doUars 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, . . . 

St. 1908, c. 520, prescribing the manner in which a trust com- 
pany may receive deposits in its savings department, provides, 
in section 2, that — 

All such deposits shall be special deposits and shaU 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. . . . 

St. 1908, c. 590, § 68, which regulates the investment of de- 
posits in savings banks and the income derived therefrom, pro- 
vides that such deposits and income may be invested: — 

Eighth. In loans of the classes hereafter described, payable and to be 
paid or renewed at a time not exceeding one year from the date thereof; 
but not more than one-third of the deposits and income shall so be in- 
vested, nor shall the total liabilities to such corporation of a person, part- 
nership, association or corporation for money borrowed upon personal 
security, including in the liabilities of a partnership or company not in- 
corporated the liabilities of the several members thereof, exceed five per 
cent of such deposits and income. 



10 OPINIONS OF THE ATTORNEY-GENERAL. 

Your specific inquiry is whether or not "the provisions of 
section 2, chapter 520, Acts of 1908, enlarge or extend the Hmi- 
tations upon personal borrowings as first defined in section 34, 
chapter 116, Revised Laws, so that it would be legal for a trust 
company to simultaneously loan the same parties in its banking 
or commercial department to the limit named in said section 34 
and in its savings department to the limit named in the eighth 
clause of section 68, chapter 590, Acts of 1908." 

It is obvious that the limitation in R. L., c. 116, § 34, is in- 
consistent with the subsequent provision of St. 1908, c. 590, 
§ 68, cl. 8, and since, in the latter statute, it is provided, in sec- 
tion 16, that "all acts and parts of acts inconsistent herev/ith 
are hereby repealed," I am of opinion that in respect of such 
inconsistency St. 1908, c. 590, § 68, cl. 8, should govern, and 
the deposits and income in the savings department of a trust 
company may be loaned to a person, partnership, association or 
corporation to the amount of 5 per cent, of such deposits and 
income, provided that the borrower is not otherwise indebted 
to the trust company. Since, however, this clause fixes the total 
liability of a borrower from such a corporation at 5 per cent, 
of the deposits and income in the savings department, it follows 
that, having borrowed to that extent, a person cannot obtain 
any further loans from the corporation either in its savings de- 
partment or in its so-called commercial department, and that if 
he has already secured a loan from the commercial department 
in accordance with the provisions of R. L., c. 116, § 34, the 
amount so obtained must be considered in determining the 
amount of any loan from the savings department, so that the 
combined sum of his indebtedness shall not exceed 5 per cent, 
of the deposits and income of the savings department, and that, 
if such person first secures a loan from the savings department 
for an amount which exceeds one-fifth of the capital stock of the 
corporation, he cannot thereafter secure a loan from the com- 
mercial department, since his total liabilities "to such corpora- 
tion" for moneys borrowed already exceeds one-fifth of said 
capital stock. 



JAMES M. SWIFT, ATTORNEY-GENERAL. 11 



COMMON\\^EALTH PlER — OlD CoLONY RaILROAD CoMPANY — 

Lease — Cancellation — Directors of the Port of 
Boston — Agreement — Execution — Date. 

Where the Directors of the Port of Boston, acting under the authority of St. 1911, 
c. 748, §§4 and 5, executed a contract with the Old Colony Railroad Com- 
pany, and its lessee, the New York, New Haven & Hartford Railroad 
Company, by which an existing lease to the Old Colony Railroad Company 
from the Board of Harbor and Land Commissioners of the Commonwealth 
Pier, at a quarterly rental of $17,500, was cancelled, and it was provided 
that the Old Colony Railroad Company and its lessee should be absolved 
and discharged from any further obligation or promises under or by virtue 
of said lease, except the payment of any unpaid rent up to July 1, such 
agreement being dated "this first day of July, 1912," but not executed in 
fact until Oct. 10, 1912, the agreement so drawn and executed was effectual 
to relieve the lessee of the obligation to pay rental for the period of the con- 
tinuance of the lease after July 1, and the Old Colony Railroad Company 
or its lessee may justly claim that the rental paid for the months of July 
and August should be reimbursed to it in accordance with the terms of such 
agreement. 

In view of the fact that the payment was required to be made by force of an 
existing lease, it may be doubted whether such reimbursement should be 
made without express authority from the Legislature. 

By an instrument dated Nov. 1, 1910, the Board of Harbor to the Auditor 
and Land Commissioners leased to the Old Colony Railroad wealth. °"°^° 

1913 

Company, for the term of thirty years, the property known as February 6. 
the " Commonwealth Pier," the consideration for said lease 
being the payment by the company of the sum of $70,000 
yearly, by quarterly payments, as follows: "Seventeen thousand 
five hundred (17,500) dollars on the first day of March, 1911, 
and the same sum thereafter on the first day of June, Septem- 
ber, December and March in each and every year during said 
term." 

By St. 1911, c. 748, an act relating to the development of the 
port of Boston, the governor, in section 1, was authorized, with 
the advice and consent of the council, to appoint three persons, 
and the mayor of the city of Boston to appoint one person, to 
constitute the Directors of the Port of Boston. By section 2 
the directors so appointed were made the administrative officers 
of the port, to "cause to be made all necessary plans for the 
comprehensive development of the harbor," to have immediate 
charge of the lands now or hereafter owned by the common- 



12 OPINIONS OF THE ATTORNEY-GENERAL. 

wealth upon or adjacent to the harbor front, except lands under 
the control of the metropolitan park commission or of the metro- 
politan water and sewerage board, and of the construction of 
piers and other public works therein, to administer all terminal 
facilities which are under their control, and to keep themselves 
thoroughly informed as to the present and probable future re- 
quirements of steamships and shipping, and as to the best 
means which can be provided at the port of Boston for the 
accommodation of steamships, railroads, warehouses and in- 
dustrial establishments. 
Section 4 is as follows: — 

All the rights, powers and duties now pertaining to the board of harbor 
and land commissioners in respect to such lands, rights in lands, flats, 
shores, waters and rights belonging to the commonwealth in tidewaters 
and land under water as constitute that part of Boston harbor lying 
westerly and inside of a line drawn between Point AUerton on the south 
and the southerly end of Point Shirley on the north, or as adjoin the 
same or are connected therewith, and any other rights and powers here- 
tofore vested by the laws of the commonwealth in the board of harbor 
and land commissioners in respect to any part of said area, are hereby 
transferred to and hereafter shall be vested in and exercised by said di- 
rectors. There shall also be transferred to and vested in the directors the 
right to expend any unexpended funds heretofore appropriated to be ex- 
pended by the board of harbor and land commissioners in the area above 
designated, and the right which the board of harbor and land commis- 
sioners has heretofore exercised in regard to moneys paid to the common- 
wealth in accordance with the provisions of section twenty-three of chap- 
ter ninety-six of the Revised Laws. Said directors shall also assume and 
take over, on behalf of the commonwealth, any rights, powers and duties 
of the board of harbor and land commissioners under any contracts here- 
tofore made for the improvement, filling, sale, use or other disposition of 
the lands, flats or waters of the commonwealth within said area, including 
any structures now existing or being built therein or thereon. 

Section 5 provides, in part, that — 

With the consent of the governor and council, the directors may take 
or acquire by purchase or otherwise, and hold, such real property and 
such rights and easements therein as the directors may from time to time 
consider necessary for the purpose of constructing, or securing the con- 
structing or utilizing of, piers and, in connection therewith, highways. 



JAMES M. SWIFT, ATTORNEY-GENERAL. 13 

waterways, railroad connections, storage yards and sites for warehouses 
and industrial establishments, and may lay out and build thereon and 
upon such other lands as under section four of this act are under its juris- 
diction, such piers, with buildings and appurtenances, docks, highways, 
waterways, railroad connections, storage yards and public warehouses as, 
in the opinion of the directors, may be desirable. 

Acting under the provisions of, and exercising the very broad 
powers conferred by, these provisions, the Directors of the Port 
of Boston entered into negotiations with the directors of the 
Old Colony Railroad Company and of its lessee, the New York, 
New Haven & Hartford Railroad Company, looking to the can- 
cellation of the lease already referred to, and a tentative agree- 
ment for that purpose was submitted to the Directors of the 
Port of Boston in a letter addressed to them on July 1, 1912. 
The actual agreement or contract for such cancellation was not 
finally executed by said directors until October 10, although it 
had been executed by the company some days prior to that 
date, and was not approved by the Governor and Council until 
November 6. The agreement as originall}^ drawn and finally 
executed by both parties was dated "this first day of July, 
1912," and contained a stipulation that — 

The lease dated Nov. 1, 1910, ... is hereby cancelled and terminated 
as of the date of this instrument, the Commonwealth assuming full control 
of said property so leased, and the Old Colony and its lessee the New 
Haven being absolved and discharged from any further obligation or 
promises under or by virtue of said lease, except the payment of any 
unpaid rent up to July 1. 

The Old Colony Railroad Company or its lessee, the New 
York, New Haven & Hartford Railroad Company, upon Sep- 
tember 1 paid the quarterly rent as provided for in the lease 
of Nov. 1, 1910, amounting to $17,500, and the lessee, the New 
York, New Haven & Hartford Railroad Company, in view" of 
the terms of the instrument as finally executed, has made 
formal application to the Auditor of the Commonwealth that 
such payment, covering the months of July and August, amount- 
ing to $11,666.07, be refunded to it. The matter is now before 



14 oprsioxs OF THE attoilni:t-gzxeral. 

me iqMm ytMir inqoiry as to whether the New York. Xew Haven 
& Hartfcml RaOroad Company is entitled to the amount claimed 
by it, and whether, if said company is entitled thereto, it may 
be paid withoin fmxher action of the Legislature. 

All deeds or contracts should be dated on the day of their 
execution, and in the absence of other evidenc-e upon the sub- 
ject it has been held reasonable and safe to conclude in any 
particular instance that a legal instrument by which property 
is conveyed was c-ompleted on the day on which it bears date. 
.SiinfA V. Porter, 10 Gray. ^, 6S. This presumption, however., 
is subject to proof by extraneous evidence that the instrument 
was in fact dated upon another day. Lee v. Mas-*achuseti.s 
Insurance Co.y 6 Mass. 2aS: Dre-^fJ v. Jordan. 104 Mass. 407, 
417. 

It is clearly established, however, that the date of a deed or 
contract is not essential to the validity of the instnmient. Lee 
V. M(M.*aeh'u^eU^ Insurance Co., »upra; Joseph v. Bigelow, 4 
Cush- S2, S4. The agreement now under consideration in 
respect to its validity would not be affected if the date of its 
execution were entirely omitted. This being so, I am of 
opinion that the question now raised must depend upon the 
intention of the parties to the agreement and not upon the date 
of its execution. Upon its face it purports to be a cancellation 
of the existing lease from -July 1, 1912. and to release the lessee 
from any obligation to make pa^^nents of the rent which 
acerued after said date. I am ad\'ised that the provision that 
the obligations of the lessee should terminate upon July 1, 1912. 
was not intended to be dei>endent upon the date of the actual 
execution of the instrument, and was designedly retained not- 
withstanding that such execution was not formally completed 
untfl the month of October. Such being the intent of the 
parties, I am of opinion that the instnmient was effectual to 
relieve the lessee of the obligation to pay rental for the period 
of the continuance of the lease after July 1, and that the Old 
Colony Railroad Company, or the Xew York, Xew Haven k. 
Hartford Railroad Company, its lessee, may justly claim that 
the rental paid for the months of July and August should be 



JAMES M. SWIFT. ATT0KST:Y-GE>"XEAI-. 15 

reimbursed to it in accordance with the terms of the agreement: 
but in ^^ew of the fact that the pa^"ment, when made, was re- 
quired to be made by force of an existing lease, it is doubtful 
if such reimbursement should be made without express authority 
from the Lesrislature. 



Cmzs AXD Towxs — PEiVATr Way — Width axd Geade — 
Regixatiox — CoxsnxtTioxAL Law. 

T'ne term "' private ^ray" in iis Technical sense imports a w^aj" laid oat irader the 
provisions of R. I~ e. 45. § 63, and ^le foDoviiig sectioBis, and is, in fact, a 
puUie -cTEv laid out by public offieexs for the coanmon neeesaty and eos^ 
venience: and the LesisLaiure may anUiaEiae a sty or town to make or- 
dinances or by4aiF5 ecHitroDing the eoBStznetion of soA ^i^iy witii le^iect 
to width and grade. Upon the other hand, a vaty over pinste land in 
which the pabhc has no interest cannot be legolated lUid eontniiled as to 
width <»- vrade by the ordinances of a city or Has by-lavs d a town. 

On behalf of the Committee on Cities vou have submitted to Tos&eS 



me the following question of law: "Is it within the power of cssies. 
the Legislature to authorize a city or town to make ordinances r-rr^s^ 
controlling the construction of private ways in respect to width 
and grade; and if such authority were given, would it be pos- 
sible for a cit^- or town to pro\'ide that all private wa\-s must 
be of a determined width and a grade approved by the proper 
officials of the city or town?" 

The term "private way" in its technical sense means a way 
kid out under the pro\Tsions of R. L., c. -IrS, § 65, and the fol- 
lowing sections, and differs from a town way in the fact that 
the damages occasioned by its being laid out are assessed in 
whole or in part upon the person or p>ersons for whose benefit 
it is constructed. Flagg v. Flagg, 16 Gray. 175. "Such ways 
are laid out by pubhc officers as branches of public roads, upon 
the imphed groimd . . . that the common convenience and ne- 
cessity require such la\"ing out." Denham v. County Commis- 
sioners, lOS Mass. 2t?2. The la\"ing out of either town ways or 
private ways is not restricted in respect to width and grade, 
such matters being left to the discretion of the selectmen or 
road commissioners, to be determined by the public necessity or 



16 



OPINIONS OF THE ATTORNEY-GENERAL. 



convenience in each particular case; but I have no reason to 
doubt that the Legislature may authorize a citj^ or town to 
limit the actual construction of such ways in respect to width 
and grade. 

Upon the other hand, a way over private land in which the 
public has no interest, the w^ay and the land over which it passes 
being private property, could not be regulated or controlled as 
to width or grade by the ordinances of a city or the by-laws of 
a town. 



State Board of Health — Cities and Towns — Boards 
OF Health — Rules and Regulations relating to the 
Keeping and Exposure for Sale of Articles of Food 
— Approval — Public Hearing. 

Under the provisions of R. L., c. 56, § 70, as amended by St. 1912, c. 448, that 
"boards of health of cities and towns may make and enforce reasonable 
rules and regulations, subject to the approval of the state board of health, 
as to the conditions under which all articles of food may be kept for sale 
or exposed for sale" and that "any person affected by such rules and regu- 
lations, in the form in which they are presented to the state board of health 
for approval, may appeal to the said board for a further hearing," the State 
Board of Health is not required to hold a public hearing before approving 
rules and regulations submitted to it unless some person affected thereby 
has applied for further hearing. 



You have called my attention to the provisions of R. L., 

The amendment 



To the 

State Board of 

Hpfllth 

1913 c. 56, § 70, as amended by St. 1912, c. 448. 

February 20. , . i p • i ' -n • • • i • i 

adds to the end or said section vO certain provisions, which, so 

far as is material to your inquiry, are as follows: — 

Boards of health of cities and towns may make and enforce reasonable 
rules and regulations, subject to the approval of the state board of health, 
as to the conditions under which all articles of food may be kept for sale 
or exposed for sale, in order to prevent contamination thereof and injury 
to the public health. Before the board of health of any city or to^^^l 
submits such rules and regulations to the state board of health for ap- 
proval it shall hold a public hearing thereon, of which notice shall be 
given by publication for two successive weeks, the first publication to be 
at least fourteen days prior to the date of the hearing, in a newspaper 
published in such city or town, or, if none is so published, in a newspaper 
published in the county in which such city or town is located. Any per- 



JAMES M. SWIFT, ATTORNEY-GENERAL. - 17 

son affected by such rules and regulations, in the form in which they are 
presented to the state board of health for approval, may appeal to the 
said board for a further hearing, and said board shall not grant its approval 
to rules and regulations concerning which such an appeal has been taken 
until it has held a public hearing thereon, advertised in the manner speci- 
fied above in this section with reference to hearings before boards of health 
in cities and towns. 

You state that "a hearing was held before the Boston Board 
of Health in accordance with the statutes, and the rules and 
regulations were duly presented to the State Board of Health 
for its approval, which approval was given by the State Board 
of Health at a meeting held Feb. 6, 1913;" and that you have 
received a letter "protesting against these regulations and 
against the action of the State Board of Health in approving 
the said regulations without a public hearing;" and that "no 
request for such a hearing was made to the State Board of 
Health, however, and the Board concluded, therefore, that there 
was no opposition to such regulations from the citizens of Bos- 
ton." Upon these facts your inquiry is in substance whether or 
not the State Board of Health " acted within its rights in approv- 
ing these regulations without holding an advertised hearing." 

In my opinion this inquiry is answered by the provisions 
above quoted, which require public hearings to be held by local 
boards of health before making or enforcing any rules or regu- 
lations in the premises. The State Board of Health, however, 
is not required to hold public hearings unless a person affected 
by such rules and regulations in the form in which they are 
presented to it appeals to said board for a further hearing, in 
which case a public hearing, advertised in the same manner as 
that required for hearings before local boards of health, must be 
held. If, as I assume from the statement made by you, no 
appeal was taken to the State Board of Health, it follows that 
no public hearing was required in this particular case; such 
hearing being required only upon appeal to the State Board 
from the form of the rules and regulations adopted by the local 
board. 



18 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Auditor 
of the Common- 
wealth. 

1913 
February 21. 



Land — Registration — Assurance Fund — Income. 

In R. L., c. 128, relating to the registration and confirmation of titles to land, 
the provision of § 100, that the income of the assurance fund established 
by § 93 shall be added to the principal and invested, until it amounts to 
$200,000, and thereafter shall be used, as far as may be, to defray the ex- 
penses of the administration of the provisions of this chapter, permits the 
sum accruing from such fund to be used in addition to the annual appro- 
priation made by the Legislature, unless it is provided that such appropriation 
shall include all other sums previously appropriated for such purpose. 

You have requested my opinion concerning the provisions of 
R. L., c. 128, §§ 93, 94 and 100, on the following questions: — 

1, Should the assurance fund be increased above the amount of 1200,000 
by the amounts received under the provisions of section 93? 

2. Can the income from this fund from invested securities be used by 
the Land Court in addition to the amount which is appropriated by the 
Legislature for expenses of the court? 



R. L., c. 128, §§ 93, 94 and 100, provide as follows: — 

Section 93. Upon the original registration of land, and also upon the 
entry of a certificate showing title as registered owners in heirs or devisees, 
there shall be paid to the recorder one-tenth of one per cent of the assessed 
value of the land, on the basis of the last assessment for miinicipal taxation, 
as an assurance fund. 

Section 94. All money received by the recorder under the provisions 
of the preceding section shall be paid to the treasurer and receiver general, 
who shall keep it invested, with the advice and approval of the governor 
and council, and shall report annually to the general court the condition 
and income thereof. 

Section 100. The income of the assurance fund shall be added to the 
principal and invested, until said fund amounts to two hundred thousand 
dollars, and thereafter the income of such fund shall be usfed to defray, as 
far as may be, the expenses of the administration of the provisions of this 
chapter, instead of being added to the fund and accumulated. 

I am of opinion that it is the intent of the statute that the 
assurance fund shall remain untouched until it has reached the 
sum of S200,000, and that thereafter the interest thereon shall 
be used to defray the expenses of the Land Court, and that the 
payments into the fund of the money received under section 93 
shall still continue. 



JAMES M. SWIFT, ATTORNEY-GENERAL. 19 

In my opinion the annual appropriation made by the Legis- 
lature, unless it states that the sum therein named shall include 
all other sums previously appropriated for that purpose, does 
not affect the income from said fund. The sum accruing from 
said fund may be used in addition to the appropriation by the 
Legislature in any given year. 



License — Steam Boiler or Engine — Locomotive. 

A locomotive used by a railroad company for the purpose of making steam to 
heat its passenger cars, or for operating steam drills, or for any work neces- 
sitating the use of steam power other than the actual work of hauling cars, 
is within the exemption contained in R. L., c. 102, § 78, as amended by 
St. 1911, c. 562, § 1, that "no person shall have charge of or operate a steam 
boiler or engine in this commonwealth, except boilers and engines upon 
locomotives . . . unless he holds a license as hereinafter provided ..." 
and a person in charge of or operating a steam boiler or engine thereon is 
not required to hold a license therefor. 

You have requested my opinion as to whether a locomotive to the chief of 

,, Ml Pit e 1 • ^ the Massachu- 

used by a railroad company tor the purpose or making steam setts District 
to heat its passenger cars, or for operating steam drills, or for i9i3 



any work necessitating the use of steam power other than the 
actual work of hauling cars, is within the exemption contained 
in the words "except boilers and engines upon locomotives" in 
R. L., c. 102, § 78, as amended by St. 1911, c. 562, § 1. Section 
78, as amended, provides as follows: — 

No person shaU have charge of or operate a steam boiler or engine in 
this commonwealth, except boilers and engines upon locomotives, motor 
road vehicles, boilers and engines in private residences, boilers in apart- 
ment houses of less than five flats, boilers and engines under the jurisdic- 
tion of the United States, boilers and engines used for agricultural purposes 
exclusively, boilers and engines of less than nine horse power, and boilers 
used for heating purposes exclusively which are provided with a device 
approved by the chief of the district police limiting the pressure carried to 
fifteen pounds to the square inch, unless he holds a license as hereinafter 
provided. . . . 

Whether a person operating a boiler or engine is within the 
exception of the statute depends, by its very wording, upon 



February 24. 



20 



OPINIONS OF THE ATTORNEY-GENEKAL. 



whether it is upon a locomotive. There is no restriction as to 
the use of a locomotive in the enactment. The question 
whether it is a locomotive or not is determined by its design 
and its potentiality rather than by any use to which it may be 
temporarily applied. In the absence of any facts indicating 
that the locomotive has been changed in form or design, I as- 
sume that it is still a steam engine which travels on wheels 
turned by its own power and is designed and adapted to travel 
on a railway and has power to haul cars from place to place. 
Upon that assumption, it is still a locomotive according to 
the ordinary acceptation and dictionary definition of that term; 
and a person in charge of or operating a steam boiler or engine 
upon such locomotive is exempted from the requirement of 
holding a license as provided in the statute. If it is desirable to 
restrict the use of such locomotives merely to hauling cars, new 
legislation appropriate to that end will be necessary. 



To the Joint 
Committee on 
Labor. 

1913 
February 28. 



Constitutional Law — Hours of Labor — P'air, Reason- 
able AND Appropriate Exercise of Police Power — 
Question of Fact. 

The constitutionality of a proposed measure limiting the hours of labor of persons 
employed in certain designated occupations depends upon the determina- 
tion of the question whether such measure, if enacted, would constitute a 
fair, reasonable and appropriate exercise of the police power upon the one 
hand, or an unreasonable, unnecessary and arbitrary interference with the 
right of the individual to his personal liberty to make such contracts as he 
deems necessary or proper upon the other. 

In the absence of evidence bearing upon the relation which exists between the 
occupations so designated and the health of those employed in them, the 
Attorney-General is not sufficiently advised to pass upon the question of 
the constitutionality of such proposed measure as a question of law. 

It is for the Legislature, in the first instance, to determine, upon the facts and 
considerations presented to it, whether in its judgment there is fair and 
reasonable ground to say that there is material danger to the public health 
or to the health of the employees if the hours of labor in the occupations 
designated are not curtailed. 

The Joint Committee on Labor has submitted to me copies 
of three bills, providing for the regulation of the hours of em- 
ployment in certain occupations, and has requested my opinion 



JAMES M. SWIFT, ATTORNEY-GENERAL. 21 

as to whether these bills would be constitutional if enacted into 
law. Senate Bill No. 145 is entitled "An Act fixing hours of 
employment of employees of express companies," and provides 
in section 1 as follows: — 

The hours of emploj-ment of all employees of firms, persons, corporations 
or associations engaged in the express business in this commonwealth 
shaU be limited to nine hours within eleven consecutive hours: provided, 
hoivever, that in case of emergency an officer or agent of such company may 
request an employee to work over and above nine hours, time over and 
abov^e nine hours to be paid extra. On Sundaj's and legal holidays extra 
labor maj^ be performed at extra compensation and at request of employees. 
Intimidation of employees or threats of loss of employment by any officer 
or agent of anj^ such company shall be considered as coercion and "requir- 
ing" within the meaning of this section. Anj^ company or its agent which 
violates the provisions of this act shall forfeit for each offence not less than 
one hundred nor more than five hundred doUars. 

House Bill No. 47 is entitled "An Act relative to the hours 
of labor of drug clerks," and provides in sections 1 and 2 as 
follows : — 

Section 1. No registered pharmacist, assistant pharmacist, clerk, ap- 
prentice or other emploj^ee in any pharmacy, drug store or apothecary 
shop, shall be required or allowed to work more than twelve hours in any 
consecutive twenty-four, nor more than sixty-five hours in any consecutive 
one hundred and sixty-eight, except in particular cases in which the board 
of registration in pharmacy shall grant specific permission, in due accord- 
ance with the provisions of this act. 

Section 2. The board of registration in pharmacy shall have authority 
to grant permission to any registered pharmacist who is the owner or man- 
ager of any pharmacy, drug store or apothecary shop, to request and to 
allow any registered pharmacist, assistant pharmacist, clerk, apprentice or 
other employee to work more than twelve hours in any consecutive twenty- 
four, or more than sixty-five hours in any consecutive one hundred and 
sixty-eight: provided, that such registered pharmacist, assistant phar- 
macist, clerk, apprentice or other employee shall not be required or aUowed 
to work more than one hundred and thirty hours in any consecutive three 
hundred and thirty^-six. 

House Bill No. 1081 is entitled "An Act to regulate the hours 
of labor of certain employees in paper mills and other industrial 



22 OPINIONS OF THE ATTORNEY-GENERAL. 

establishments operated day and night," and provides in sec- 
tions 1, 2 and 3 as follows: — 

Section 1. No person who is employed as a tour- worker in any paper 
mill, foundry, factory or any manufacturing or mechanical or other indus- 
trial establishment which is in operation both day and night, either con- 
tinuously or intermittently, shall, except in case of emergency, be required, 
requested or permitted to work more than forty-eight hours in any one 
week or more than eight hours in any one calendar day. 

Section 2. Only a case of danger to property, to life, to public safety 
or to public health shall be considered a case of emergency within the 
meaning of this act, except in case of employment for the repair, renewal, 
adjustment or care of machinery or appliances in order to maintain the 
same in continuous operation, and except in case of employment of a tour- 
worker in substitution for and in the temporary absence of another. 

Section 3. For the purposes of this act the expression "tour- work- 
ers" shall mean all employees who tend or are employed for the purpose 
of tending machinery or appliances of any description which are operated 
both day and night, either continuously or intermittently, and shall be 
deemed to include machine tenders and their helpers, engineers and their 
helpers, calender tenders and their helpers, cutter tenders and all other 
persons whose attendance is required in consequence of the continuity 
of operation of such machinery or appliances. 

These three bills refer to entirely distinct occupations, and 
vary in the degree of regulation to which they would subject 
the employment of labor in these occupations. Each bill there- 
fore must be considered upon its own special provisions and 
upon its own individual merits. 

There are, however, certain general principles of law which 
are applicable to the entire class of legislation to which these 
three bills belong, and these general principles may well be 
briefly stated as a basis for the consideration of the particular 
bills.' 

Whether such legislation is unconstitutional or not depends 
on whether it unwarrantably deprives those who are subject to 
it of their liberty. The liberty of the individual is guaranteed 
both by the State and Federal constitutions, and it has been 
held that the right to make contracts is embraced in the concep- 
tion of liberty as guaranteed by the Constitution. Allgeyer v. 



JAMES M. SWIFT, ATTORNEY-GENERAL. 23 

Louisiana, 165 U. S. 578; Lochner v. New York, 198 U. S. 45; 
Adair v. United States, 208 U. S. 161; Chicago, Burlington & 
Quincy R. R. Co. v. McGuire, 219 U. S. 549, 566. In the case 
of Allgeyer v. Louisiana, 165 U. S. 578, 589, the court said, in 
referring to the Fourteenth Amendment to the Constitution of 
the United States : — 

The liberty mentioned in that amendment means not only the right of 
the citizen to be free from the mere phj^sical restraint of his person, as by 
incarceration, but the term is deemed to embrace the right of the citizen 
to be free in the enjoyment of all his faculties; to be free to use them in all 
lawful ways; to live and work where he will; to earn his livelihood by 
any lawful calling; to pursue any livelihood or avocation, and for that 
purpose to enter into all contracts which may be proper, necessary and 
essential to his carrying out to a successful conclusion the purposes above 
mentioned. 

The right to contract is not, however, an absolute right. It 
is held subject to certain powers inherent in the sovereignty of 
each state and of the United States which are known as the 
"police powers." The police powers are not easily described, 
and specific limitations of them have not been attempted by the 
courts. They are somewhat elastic in their nature and grow 
and vary with public opinion. For present purposes, however, 
it is sufficient to describe them as the powers which the sov- 
ereignty may exercise in relation to the safety, health, morals 
and general welfare of the public. 

In the exercise of those powers the State may subject the 
property and the liberty of the individual to reasonable con- 
ditions without violating the provisions of the Fourteenth 
Amendment to the Constitution. 

The question as to the constitutionality of the bills presented, 
therefore, resolves itself into the question whether the bills, if 
enacted into law, would constitute a reasonable exercise of the 
police power by the governing power of the State. The ques- 
tion was thus expressed by the United States Supreme Court 
in the case of Adair v. United States, 208 U. S. 161, 173: — 

In every case that comes before this court, therefore, where legislation 
of this character is concerned and where the protection of the Federal Con- 



24 OPINIONS OF THE ATTOENEY-GENERAL. 

stitution is sought, the question necessarily arises: Is this a fair, reason- 
able and appropriate exercise of the police power of the State, or is it an 
unreasonable, unnecessary and arbitrary interference with the right of the 
individual to his personal liberty or to enter into those contracts in rela- 
tion to labor which may seem to him appropriate or necessary for the 
support of himself and his family? 

Having thus indicated as a guide to the committee the funda- 
mental question involved in determining whether the proposed 
legislation would be constitutional, it may be of further assist- 
ance if I indicate in what manner a few attempts of the exercise 
of this police power in the matter of regulating the hours of 
labor have been judged by the Supreme Judicial Court of this 
Commonwealth and the Supreme Court of the United States. 

The statutes regulating the hours of labor of employees of 
the Federal, State and municipal governments and of persons 
employed by persons contracting with these governments upon 
public work have been held to constitute a class entirely distinct 
from the statutes regulating the hours of labor of employees of 
private corporations and individuals, and have been sustained 
by a divided court as a lawful exercise of the right of the sov- 
ereign to prescribe the conditions under which it will permit 
work of a public character to be done. Atkin v. Kansas, 191 
U. S. 207, 223. 

Legislation limiting the hours of labor for women and chil- 
dren, while its constitutionality as applied to women has been 
doubted in some States, has been upheld generally and in this 
Commonwealth as a matter of health regulation. Common- 
ivealth V. Hamilton Mfg. Co., 120 Mass. 383; Opinion of the 
Justices, 163 Mass. 589, 594; Commonwealth v. Riley, 210 Mass. 
387. 

In the case of Holden v. Hardy, 169 U. S. 366, the question 
of regulating the hours of labor for men was raised, and the 
Supreme Court of the United States, with two justices dis- 
senting, sustained as a valid exercise of the police power a stat- 
ute of the State of Utah entitled "An Act regulating the hours 
of employment in underground mines and in smelters and ore 
reduction works," which limited to eight hours per day the 



JAMES M. SWIFT, ATTORNEY-GENERAL. 25 

period of employment in all underground mines and in smelters 
and all other institutions for the reduction or refinement of ores 
or metals, except in case of emergency where life or property 
was in imminent danger. It was pointed out in that case that 
the men worked in an atmosphere of poisonous gases, dust and 
impalpable substances which in the judgment of the court tended 
to produce morbid, noxious and deadly effects in the human 
system. In the course of its opinion the court said: — 

These employments, when too long pursued, the Legislature has 
judged to be detrimental to the health of the employees, and, so long 
as there are reasonable grounds for believing that this is so, its decision 
upon this subject cannot be reviewed by the Federal courts. 

In the case of Lochner v. New York, 198 U. S. 45, the United 
States Supreme Court, with three justices dissenting, reversed 
the decision of the highest court of New York, and held uncon- 
stitutional, as not within the limits of the police power, a statute 
of New York limiting to sixty hours in any one week the period 
of employment in a biscuit, bread or cake bakery or confec- 
tionery establishment, and containing no emergency clause. In 
this case the court referred to the above-mentioned case of 
Holden v. Hardy as one of the "border ones" in which the 
court had been "guided by rules of a very liberal nature." A 
careful reading of the entire opinion in this case would un- 
questionably be instructive to the committee, but particular 
attention should be called to the following quotations from the 
opinion: — 

It is a question of which of two powers or rights shall prevail — the 
power of the State to legislate, or the right of the individual to liberty of 
person and freedom of contract. The mere assertion that the subject 
relates though but in a remote degree to the public health does not neces- 
sarily render the enactment valid. The act must have a more direct rela- 
tion, as a means to an end, and the end itself must be appropriate and 
legitimate, before an act can be held to be valid which interferes with the 
general right of an individual to be free in his person and in his power to 
contract in relation to his own labor. — Page 57. 

We think the limit of the police power has been reached and passed in 
this case. There is, in our judgment, no reasonable foundation for holding 
this to be necessary or appropriate as a health law to safeguard the public 



26 OPINIONS OF THE ATTORNEY-GENERAL. 

health or the health of the individuals who are following the trade of a 
baker. — Page 58. 

The act is not, within any fair meaning of the term, a health law, but 
is an illegal interference with the rights of individuals, both employers 
and employees, to make contracts regarding labor upon such terms as 
they may think best, or which they may agree upon with the other parties 
to such contracts. — Page 61. 

Other decisions of the United States court and of the various 
state courts might be cited, but perhaps enough have been 
referred to, to show the view taken by the majority of a divided 
court at the time when the questions were presented. 

The question of the constitutionality of the legislation pro- 
posed cannot be adequately considered or discussed except upon 
presentation of the facts with reference to the occupation to 
which the proposed legislation is to apply. It is for the Legis- 
lature, in the first instance, to say, upon the facts and con- 
siderations presented to it, whether in its judgment there is 
"fair and reasonable ground, in and of itself, to say that there 
is material danger to the public health or to the health of the 
employees" if the hours of labor are not curtailed in the occupa- 
tions to which these bills refer. 

I assume that evidence and arguments have been submitted, 
or will be submitted, to the committee, bearing upon the re- 
lation which exists between these various occupations and the 
health of those employed in them. No such evidence or argu- 
ments are before me, and I am, therefore, unable to determine 
finally the character of the employment in these occupations as 
shown by any particular evidence that has been or may be 
submitted to the committee. 

It is to be noted, however, that Senate Bill No. 145, limiting 
the hours of employment of employees of express companies, 
purports to limit the hours of employment of "all employees" 
in the express business. It would thereby place a person doing 
light office work, with long intervals of comparative leisure, or 
a person merely exercising the functions of supervisor of team- 
ing, employed in the open air, upon the same basis with a man 
doing heavy manual labor and one exposed to long hours 
out-of-doors in bad weather. 



JAMES M. SWIFT, ATTORNEY-GENERAL. 27 

It is to be noted, also, that House Bill No. 47, limiting the 
hours of labor of registered pharmacists, assistant pharmacists, 
clerks, apprentices "or other employee" in any pharmacy, drug 
store or apothecary shop to sixty-five hours in any one week, 
applies equally to the pharmacist constantly engaged in pre- 
paring prescriptions and to the clerk whose only duty is to tend 
the counter at which confectionery and cigars are sold. 

With reference to these bills and to House Bill No. 1081, 
limiting to eight hours per day the period of employment in 
any paper mill, foundry, 'factory or any manufacturing, me- 
chanical or other industrial establishment, as therein provided, 
the committee will have before it sufficient information to 
enable it to determine the question under the principles here- 
inbefore set forth, applying in addition to common knowledge 
of the facts in reference to such business such particular evi- 
dence or facts as have been or may be submitted to the com- 
mittee for the purpose of enlightening it as to the necessity for 
such legislation, or as indicating that there is danger to health 
and welfare in these various occupations, within the limits 
hereinbefore set forth. 

Constitutional La"w — Sale of Fruit, Vegetables and 
Nuts at Retail by Dry Measure — Legal Weight. 

The pro\'ision of R. L., c. 57, § 21, as amended by St. 1912, c. 246, that "all fruits, 
vegetables and nuts, . . . shall be sold at retail by dry measure, weight or 
by numerical count, and all fruits and vegetables for which a legal weight 
has been established shall be sold at retail only by weight or numerical 
count," may constitutionally be amended so as to provide that "all fruits, 
vegetables and nuts for which a legal weight has been established shall be 
sold at retail only by dry measure, weight or numerical count, but not less 
than the legal weight shall be given when the same are sold by dry measure." 

If such proposed amendment were enacted, a purchaser buying by dry measure 
would be entitled to receive the established legal weight of the commodity 
purchased so far as a specific weight per unit of dry measure was established 
by law therefor, and the dealer would be required to ascertain that the 
weight for such commodity as measured did not fall below the weight re- 
quired by law in the case of the imit of dry measure employed in such sale. 

You have submitted for my consideration certain questions to the 
relating to the effect of a proposed amendment of R. L., c. Mercantile 
57, § 21, as amended bv St. 1912, c. 246. This section is as lais' 

" March 5. 

follows : — 



28 OPINIONS OF THE ATTORNEY-GENERAL. 

All fruits, vegetables and nuts, except as hereinafter otherwise provided, 
shall be sold at retail by dry measure, weight or by numerical count, and 
all fruits and vegetables for which a legal weight has been established shall 
be sold at retail only by weight or numerical count. Whoever violates 
any provision of this section shall forfeit a sum not exceeding ten dollars 
for each offence. 

The proposed bill, if enacted, will amend the above section 
so as to provide that — 

All fruits, vegetables and nuts for which a legal weight has been estab- 
Hshed shall be sold at retail only by dry measure, weight or numerical 
count, but not less than the legal weight shall be given when the same are 
sold b}^ dry measure. Whoever violates any provision of this section shall 
forfeit a sum not exceeding ten dollars for each offence. 

The effect of this amendment will be to permit sales by dry- 
measure, provided that the commodity sold equals the weight 
required by law for such dry measure. See R. L., c. 62, § 3, as 
amended by St. 1902, c. 115; St. 1911, c. 397, § 4, as amended 
by St. 1910, c. 297, and St. 1912, c. 284, and § 5. 

To the specific inquiries submitted by the committee, I reply 
as follows : — 

First. — Would the proposed amendment be constitutional? 

Upon the assumption that the original limitation imposed by 
the statute to which the proposed amendment is applicable was 
a reasonable and proper one under the circumstances, I am of 
opinion that said amendment would not be objectionable upon 
any constitutional ground. It goes no further than to require 
that if a dealer in fruits, nuts or vegetables undertakes to sell 
them, or any of them, by dry measure, he must see that the 
commodity measured does not weigh less than the weight 
established by law therefor. 

Second. — Would the purchaser be entitled to the estabhshed legal 
weight of such fruit, nuts and vegetables, when the same were bought and" 
sold by dry measure, if the proposed amendment became law? 



JAMES M. SWIFT, ATTORNEY-GENERAL. 29 

So far as a specific weight per unit of dry measure was estab- 
lished by law, the purchaser would be entitled to receive it if 
he bought by dry measure. 

Third. — If the proposed amendment became law, and if it is true that 
the estabhshed legal weights of certain fruits, nuts and vegetables are 
sometimes more than the actual weights of the same when correcth^ meas- 
ured, win the law establishing the legal weight of such fruits, nuts and vege- 
tables govern the sale at retail of the same? 

In the case stated the weight of the commodity contained in 
the unit of dry measure must be equal to the established legal 
weight for such commodity as measured, and the dealer is re- 
quired at his peril to ascertain that such weight does not fall 
below the weight required by law in the case of the unit of dry 
measure employed in the sale. 

Fourth. — If the seller gave less than the legal weight, when he sold by 
dry measure fruits, nuts and vegetables for which a legal weight has been 
established, would the Commonwealth have difficulty in obtaining a con- 
viction under the proposed amendment if it became law? 

If there was sufficient evidence of such sale I see no reason 
why, as matter of law, there should be difficulty in obtaining a 
conviction. 



Insurance Company — Massachusetts Employees Insur- 
ance Association — Indebtedness for Outstanding 
Losses — Determination. 

The Massachusetts Employees Insurance Association, incorporated under the 
provisions of St. 1911, c. 751, Part IV., is not subject to St. 1907, c. 576, 
§ 11, as amended by St. 1911, cc. 54 and 315, which, in providing for the 
determination of indebtedness for outstanding losses, requires an arbitrary 
charge to be made against any corporation writing policies covering in- 
surance against loss or damage resulting from accident to or injury suffered 
by an employee or other person, for which the insured is liable, and against 
loss from liability on account of the death of or injury to an employee not 
caused by the negligence of the employer, to be computed as therein provided. 

You have inquired with reference to the application to the to the 
Massachusetts Employees Insurance Association of so much of Commrs^sloner. 
St. 1907, c. 576, § 11, as amended by St. 1911, cc. 54 and 315, March?. 



30 OPINIONS OF THE ATTORNEY-GENERAL. 

as provides that "the indebtedness for outstanding losses under 
insurance against loss or damage resulting from accident to or 
injuries suffered by an employee or other person, for which the 
insured is liable, and under insurance against loss from liability 
, on account of the death of or injury to an employee not caused 

by the negligence of the employer, shall be determined" accord- 
ing to the method therein prescribed, which in substance 
requires an arbitrary charge to any corporation writing policies 
covering any of the kinds of insurance above described of in- 
debtedness for outstanding losses upon such policies, to be deter- 
mined as follows : — 

(10) for all suits being defended under policies written more than ten 
years prior to the date as of which the statement is made, except suits in 
which liability is not dependent upon negligence of the insured, one thou- 
sand dollars for each suit; (11) for all suits being defended under policies 
written more than five years and less than ten years prior to the date as 
of which the statement is made, except suits in which liabihty is not de- 
pendent upon negligence of the insured, seven hundred and fifty dollars 
for each suit; (12) for all deaths for which the insured are liable without 
proof of negligence, covered by policies written more than five .years prior 
to the date as of which the statement is made, the amount necessary to 
pay for such deaths; (13) for all unpaid claims on account of non-fatal 
injuries for which the insured are liable without proof of negligence under 
policies written more than five years prior to the date as of which the 
statement is made, the present value of the estimated future payments; 
(14) for the policies written in the five years immediately preceding the 
date as of which the statement is made an amount determined as follows: 
multipl}^ the earned premiums of each of such five years as shown in item 
(1) by the loss ratio ascertained as in item (6) on all the policies written in 
the first five years of the said ten-year period, using as the divisor the sum 
of the earned premiums shown in item (1) for said first five years, and as 
the dividend the sum of the payments shown in item (2) for said first five 
years plus the sum of the charges in items (3), (4) and (5) for said first 
five years; but the ratio to be used shall in no event be less than fifty per 
cent at and after December thirty-first, nineteen hundred and eleven, nor 
less than fifty-one per cent at and after December thirtj^-first, nineteen 
hundred and twelve, nor less than fifty-two per cent at and after December 
thirty-first, nineteen hundred and thirteen, nor less than fifty-three per 
cent at and after December thirty-first, nineteen hundred and fourteen, 
nor less than fifty-four per cent at and after December thirty-first, nine- 
teen hundred and fifteen, nor less than fifty-five per cent at and after 



JAMES M. SWIFT, ATTORNEY-GENERAL. 31 

December thirty-first, nineteen hundred and sixteen; and from the 
amount so ascertained in each of the last five years of said ten-year period 
deduct all payments made under policies written in the corresponding 
year as shown in item (2) , and the remainder in the case of each j^ear shall 
be deemed the indebtedness for that year: provided, however, that if the 
remainder in the case of any year of the first three years of the five years 
immediately preceding the date as of which the statement is made shall 
be less than the sum of the three following items for that year at that date, 
— (a) the number of suits, except suits in which liability is not dependent 
upon negligence of the insured, being defended under policies written in 
that year, and a charge of seven hundred and fifty dollars for each suit; 
(b) the amount necessary to pay for all deaths for which the insured are 
liable without proof of negligence, covered by policies written in that year; 
and (c) the present value of estimated unpaid claims on account of non- 
fatal injuries for which the insured are liable without proof of negligence, 
covered by policies written in that year, — then the sum of said items (o), 
(6) and (c) shall be the indebtedness for that year. 

The Massachusetts Employees Insurance Association is a mu- 
tual company organized under the provisions of St. 1911, c. 751, 
Part IV., for the purpose of insuring to employees of persons 
who become members of or subscribers to the corporation such 
compensation as is provided by the various sections of Part II. 
of said act. 

By section 23 of Part IV. it is provided that — 

The provisions of chapter five hundred and seventy-six of the acts of the 
year nineteen hundred and seven and of acts in amendment thereof shall 
apply to the association, so far as such provisions are pertinent and not in 
conflict with the provisions of this act, except that the corporate powers 
shall not expire because of failure to issue policies or make insurance. 

From a consideration of the provisions of St. 1911, c. 751, 
which relate to the organization of the Massachusetts Employees 
Insurance Association and prescribe the extent of its liability 
and the manner in which its business is to be conducted, it ap- 
pears that the company is confined to the so-called workmen's 
compensation insurance established by said chapter — with the 
unimportant exception of its liability in cases of such employees 
as may decline to accept the provisions thereof — and its sub- 
scribers are limited to employers "in the Commonwealth." Its 



32 OPINIONS OF THE ATTORNEY-GENERAL. 

maximum liability upon any particular policy is fixed by the 
statute itself and claims against it are promptly heard and de- 
termined as they, arise. In respect of these characteristics the 
company is readily to be distinguished from other companies 
which may engage in the business of insuring against loss or 
damage resulting from accident to or injuries suffered by an 
employee or other person for which the insured is liable, or 
against loss from liability on account of the death of or injury 
to an employee not caused by the negligence of an employer, 
in connection with other forms of insurance and in many 
States, to which companies the provisions of St. 1907, c. 576, 
§ 11, are made applicable. 

A further and more important distinction, which in my opin- 
ion is decisive of the present question, is that the directors of 
the Massachusetts Employees Insurance Association are re- 
quired to distribute its subscribers into groups in accordance 
with the nature of the business and the degree of the risk of 
injury, and to fix all premiums, assessments and dividends by 
and for such groups according to the experience of each group. 
By section 17 of Part IV. it is provided that any proposed 
premium, assessment, dividend or distribution into groups shall 
not be effective until approved by thie Insurance Commissioner. 
The obvious purpose of these provisions was to furnish ade- 
quate insurance to the employee at the least possible cost to 
the subscriber, and the division into groups was required in 
order that the actual cost of such insurance in any group might 
be readily ascertained and established and the surplus remain- 
ing in the hands of the company might be seasonably returned 
to those by whom it had been contributed, in the proportions 
fixed by the experience of the especial group in which each sub- 
scriber was enrolled. In view of this purpose, a determination 
of the indebtedness of the company for outstanding losses ac- 
cording to the provisions of St. 1907, c. 576, § 11, in its aniended 
form, which would impose upon the company an arbitrary 
charge against each policy, without reference to the group in 
which it was placed, would not only be not pertinent to the 
group system but in conflict therewith. 



JAMES M. SWIFT, ATTORNEY-GENERAL. 33 

In reply to your specific question, therefore, I have to advise 
you that in my opinion the Massachusetts Employees Insurance 
Association does not come within the provisions of St. 1907, 
c. 576, § 11, as amended by St. 1911, cc. 54 and 315. 



Boston Elevated Railway Company — East Boston 
Tunnel — Tolls — Security for Bonds of City of 
Boston — Substitution of Annual Appropriation — 
Impairment of Obligation of Contract — Constitu- 
tional Law. 

A proposed bill providing that "the city of Boston is hereby authorized to appro- 
priate from the tax levy each year, . . . the sum of one hundred and 
twenty-five thousand dollars to be added to the rental received frona the 
Boston Elevated Railway Company for the lease of the East Boston tunnel, 
the sum total of which shall be used to provide for the payment of the interest 
and sinking fund requirements of the bonds issued for the construction of 
the East Boston tunnel," in so far as it requires that such appropriation 
shall be used for a purpose which amounts to an indirect abolition of such 
tolls in a manner not necessarily in accordance with the provisions of St. 
1897, c. 500, § 17, that the city of Boston shall collect from each person 
passing through such tunnel in either direction a toll of one cent, to be used 
with other funds to meet the interest and sinking fund requirements of 
bonds issued by the city of Boston to defray the cost of constructing such 
tunnel unless such tolls are abolished or diminished by the Board of Rail- 
road Commissioners in the manner and for the reasons set forth in said 
section, if enacted would be unconstitutional and void as impairing the 
obligation of the contract created by such section. 

I have the honor to transmit herewith my opinion submitted 0°^^®!.^°"^ 
in accordance with the order of the Honorable House of Repre- sentatives. 
sentatives, as follows : — 

Ordered, That the Attorney-General be requested to inform the House 
of Representatives whether, in his opinion, the provisions of House Bill 
No. 1961, being An Act to authorize the city of Boston to assume the pay- 
ment of the tolls for the use of the East Boston tunnel, a copj^ of which is 
sent herewith, would, if enacted, violate any provision of the Constitution 
of the United States or of the Constitution of the Commonwealth. 

House Bill No. 1961, referred to in said order, is entitled 
"An Act to authorize the city of Boston to assume the payment 
of the tolls for the use of the East Boston tunnel," and provides 
as follows : — 



March 12. 



34 OPINIONS OF THE ATTORNEY-GENERAL. 

Section 1. The city of Boston is hereby authorized to appropriate 
from the tax levy each year, until the tenth day of June, nineteen hundred 
and twenty-two, the sum of one hundred and twenty-five thousand dollars 
to be added to the rental received from the Boston Elevated Railway Com- 
pany for the lease of the East Boston tunnel, the sum total of which shall 
be used to provide for the payment of the interest and sinking fund require- 
ments of the bonds issued for the construction of the East Boston tunnel. 
Said appropriation may be initiated by either the mayor or city council. 

Section 2. This act shall take effect upon its passage. 

While the inquiry of the Honorable House of Representatives 
is very broad in its terms, I assume that it is directed toward 
the effect of such bill, if enacted, upon the provisions of St. 
1897, c. 500, § 17, of which the material part is as follows: — 

. . . Said city shall collect from each person passing through said tunnel 
in either direction a toll of one cent : provided, hoxvever, that if in any year 
ending on the thirtieth day of September the receipts from such tolls, 
together with the rental above provided for, amount to a sum so in excess 
of the interest and sinking fund requirements of said bonds for that year 
that the board of railroad commissioners is of opinion that the toll may be 
reduced, said board shall on petition of ten citizens of said city estabUsh 
such reduced toll for the period of one year from the first day of January 
next ensuing, as will in its opinion yield an amount sufficient to meet, with 
said rental, said interest and sinking fund requirements for that year; or 
said board may altogether discontinue such toll when it is of opinion that 
such rental alone is sufficient to meet said requirements; but any such 
reduction shall be carried into effect by a provision for the sale of tickets, 
and the cash fare shall continue to be one cent. The whole amount of 
such tolls and of said rentals is hereby pledged to meet the principal and 
interest of the bonds issued to pay for the construction of said tunnel or 
tunnels, and this pledge shall be expressed on the face of such bonds as one 
of the terms thereof; provided, however, that after such tolls have been dis- 
continued if said rentals shall for any year ending on the thirtieth day of 
September yield an amount more than sufficient to meet the interest and 
sinking fund requirements of said bonds for such year such excess over said 
requirements shall be regarded as general revenue of said city. In case in 
any year the rentals and tolls above-provided for shall not yield a sufficient 
amount to meet said interest and sinking fund requirements the compen- 
sation received by said citj^ under section ten of this act shall be applied so 
far as may be necessary toward meeting such requirements. Said corpora- 
tion shall be the agent of said city to collect such tolls under such arrange- 
metits as shall be agreed upon by said city and said corporation, or in case 



JAMES M. SWIFT, ATTORNEY-GENERAL. 35 

of disagreement, as shall be determined by the board of railroad commis- 
sioners. 

In discussing an amendment to this section which aboUshed 
such tolls and instead required the city of Boston to set aside 
from the compensation received by it from the Boston Elevated 
Railway Company under section 10 of the same chapter a toll 
of one cent for each person passing through said tunnel in either 
direction, the then Attorney-General, in an opinion to the 
Committee on Metropolitan Affairs (11. Op. Atty.-Gen. 505), 
said : — 

It is to be observed that the pledge above referred to is obviously de- 
signed to afford security for the full and timely payment of the principal 
and interest of the bonds issued to pay for the work of constructing the 
tunnel, by specifically devoting a certain income to that purpose. If the 
income as assigned exceeds the amount necessary, the surplus may be 
treated as the general revenue of the city of Boston. If, on the other 
hand, the specified sources are not sufficient to provide the necessary sum, 
a third source of income is made available, namely, the income received by 
the city as compensation for the use of the public streets, ways and places, 
under the provisions of section 10. If, after experiment, it appears to the 
Board of Railroad Commissioners that the tolls and rental exceed the 
amount required for principal and interest of the bonds issued by the city, 
they may reduce the toll by making provision for the sale of tickets, though 
cash fares must still be paid in the same amount by passengers ; and if the 
rental alone becomes sufficient for the specified purposes, the tolls may be 
discontinued. 

House Bill No. 1192 in effect abolishes one source of income, viz., the 
tolls, and provides that the amount which would have been furnished to 
the city from such tolls shall be payable out of the compensation received 
by the city under section 10. This may or may not diminish or materially 
affect the sources of income available as security for the bonds issued, 
since the amount received as compensation under section 10 by the city 
may or may not be sufficient to provide for all deficits which may exist 
from year to j^ear in the rental, the significant effect of the provision being 
to abolish the tolls entirely. This, in my judgment, constitutes a material 
interference with and impairment of the obligation of contract between the 
city and the bondholders, created by section 17. If the effect of the pro- 
posed legislation were merely to substitute one security for another of 
equal value, it would be, if compulsory, objectionable on constitutional 
grounds; if the compulsory substitution be to provide a security of less 



36 OPINIONS OF THE ATTORNEY-GENERAL. 

value than the original, or one of a lower grade, it certainly conflicts with 
constitutional requirements. 

Again, in discussing the question whether or not it is within 
the constitutional power of the Legislature to abolish the tolls 
provided for in said section, the Supreme Judicial Court, in an 
opinion to the Honorable Senate and House of Representatives 
(Opinion of the Justices, 190 Mass. 605, 608), said: — 

Section 10 of Article I. of the Constitution of the United States contains 
this provision: "No state shall . . . pass any . . . ex post facto law, or 
law impairing the obligation of contracts, or grant any title of nobility," 
etc. Upon each of the bonds referred to, issued by the city of Boston in 
accordance with the provisions of the St. of 1897, c. 500, are stamped the 
following words : "East Boston Tunnel. The whole amount of the rentals 
for the use of and tolls for persons passing through the East Boston tunnel 
is pledged for the payment of the principal and interest of this loan." This 
statement, which was thus made a part of the contract on the faith of 
which purchasers have bought the bonds, was authorized and required by 
the statute. The fact that lies behind the statement, namel}% that the 
rentals and tolls are actuallj^ set apart and pledged as security for this 
pa\Tiient, is also a requirement of the statute. We have, therefore, a 
contract which rests not only upon the agreement of the city, made for a 
valuable consideration, but upon the deliberate action and solemnly 
pledged faith of the Commonwealth. The tolls referred to are the tolls 
then established by law and they cannot be diminished without reducing 
the security to which the owners of the bonds are entitled. It is plain 
that the sale of bonds, carrjdng on their face this stipulation, creates a con- 
tract with each purchaser which it is not in the power of the Legislature to 
impair. 

It appears to be well established, therefore, that any legisla- 
tion which affects or impairs the security afforded b}' the collec- 
tion of the tolls as above required to the holders of bonds to 
meet the principal and interest for which such tolls are pledged 
would clearly be unconstitutional; and this would be true not- 
withstanding the fact that some other form of security was sub- 
stituted therefor. Seibcrt v. Lewis, 122 U. S. 284, 290; Nelson 
v. St. Martin's Parish, 111 U. S. 716; Louisiana v. Pillshury, 
105 U. S. 278, 287, 288. 

So far as the proposed bill purports to substitute for the se- 



JAMES M. SWIFT, ATTORNEY-GENERAL. 37 

ciirity afforded by the collection of the tolls from persons 
passing through the East Boston tunnel another and different 
form of security to be paid by the city of Boston from its 
general revenue as raised by taxation, and to abolish such tolls, 
it would, in my opinion, be unconstitutional as impairing the 
obligation of the contract. While the bill is entitled "An Act 
to authorize the city of Boston to assume the payment of the 
tolls for the use of the East Boston tunnel," the bill itself does 
not in terms confer any such authorization. The first part goes 
no further than to permit the city of Boston to appropriate 
annually the sum mentioned therein, "to be added to the 
rental received from the Boston Elevated Railway Company 
for the lease of the East Boston tunnel." It does not abolish 
the tolls themselves nor affect them except only and in so far 
as they may be reduced or discontinued by the Board of Rail- 
road Commissioners, under the provisions of the section quoted, 
upon the basis of a rental which includes the amount actually 
paid in by the Boston Elevated Railway Company, amounting 
to three-eighths of one per cent, of the gross receipts for each 
year ending September 30 of all lines owned, leased or operated 
by it, plus the amount appropriated by the city of Boston under 
the provisions of the proposed bill, if added thereto. 

Whether or not such appropriation may be properly added to 
the actual rental as a basis for a reduction or discontinuance of 
the tolls, it is not necessary to decide; for, if such appropriation 
may not legally be added to or considered a part of the rental 
for such purpose, the tolls will not in any wise be affected by 
the enactment of the first portion of the proposed bill. 

As to the second portion of the bill, providing "the sum total 
of which shall be used to provide for the payment of the interest 
and sinking fund requirements of the bonds issued for the con- 
struction of the East Boston tunnel," there seems to be consti- 
tutional objection in that it requires that the appropriation 
provided by said act "shall be used" in such a way as to 
amount to an indirect abolition of the tolls in a manner not 
necessarily in accordance with the provision of the original 
statute hereinbefore quoted (St. 1897, c. 500, § 17). 



38 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the 

Insurance 

Commissioner. 

1913 
March 12. 



Insurance — Life and Disability Insurance — Separate 
AND Distinct Policies — Benefits conditioned upon 
Disability — Waiver of Premiums — Special Sltr- 
render Values. 

Under the provisions of St. 1907, e. 576, § 34, as amended by St. 1912, c. 524, § 1, 
that "contracts of insurance for each of the classes specified in section thirty- 
two shall be in separate and distinct policies . . . except that . . . any 
foreign life insurance company authorized to transact business in this 
commonwealth . . . may incorporate in its policies of insurance provisions 
for the waiver of premiums or for the granting of special surrender values 
therefor in the event that the insured thereunder shall from any cause be- 
come totally and permanently disabled, ..." a foreign life insurance 
company authorized to do business in this Commonwealth may incorporate 
in its policies a provision that in case the insured becomes wholly disabled 
by bodily injury or disease so as to be permanently and continuously pre- 
vented from engaging in any occupation for remuneration or profit after 
he has attained the age of sixty years, the company "shall waive payment 
of each premium thereafter becoming due during such disability, but the 
face amount of the policy shall be reduced by the amount of each such 
waived premium, ..." the deduction so made being the amount of the 
premium on insurance not presently payable of which the value is at all 
times less than the amount of the premium in cash, and to the extent of 
such difference constituting a voluntary relinquishment of premium upon 
the part of such company. 

By a letter dated February 10 j^ou have submitted for my 
consideration certain questions relative to a form of policy 
presented for your approval by the New York Life Insurance 
Company. 

By St. 1907, c. 576, § 34, it was provided that "contracts of 
insurance for each of the classes specified in section thirty-two 
shall be in separate and distinct policies notwithstanding any 
provision of this act which permits a company to transact more 
than one of said classes of insurance," and this provision, in 
^tna Life Insurance Co. v. Hardison, 199 Mass. 180, was held 
to forbid the offer in a policy of life insurance of any special 
or peculiar benefit in case of impairment of the health of the 
insured by bodily injury or disease, such as to prevent the in- 
sured for the rest of his life from pursuing any gainful occupa- 
tion. 

By section 1 of chapter 524 of the Acts of 1912, entitled "An 
Act relative to lapse and surrender values in policies of insur- 



JAMES M. SWIFT, ATTORNEY-GENERAL. 39 

ance," the section above quoted was amended so as to read as 
follows : — 

Contracts of insurance for each of the classes specified in section thirty- 
two shall be in separate and distinct poHcies notwithstanding any pro- 
vision of this act which permits a company to transact more than one of 
said classes of insurance; except that any domestic life insurance company, 
notwithstanding any Hmitations of its charter to the contrary, and any 
foreign life insurance company authorized to transact business in this 
commonwealth, if it is permitted so to do by its charter or by the state in 
which it is incorporated, whether or not it has a capital stock, may incor- 
porate in its policies of insurance provisions for the waiver of premiums 
or for the granting of special surrender values therefor in the event that 
the insured thereunder shall from any cause become totally and per- 
manently disabled, which provisions shall state the special benefits to be 
granted thereunder and the cost of such concessions to the insured, and 
shall define in such pohcies what shall constitute total and permanent dis- 
abilitJ^ 

Under authority of the amended section the New York Life 
Insurance Company has submitted for approval a policy wdiich, 
under the title "A. Waiver of Premiums," provides as fol- 
lows: — 

If, after this policy shall have been in force one full year, and before 
default in the payment of any premium, the company receives due proof 
that the insured before attaining the age of sixty years has become wholly 
disabled by bodily injury or disease so that he is and wiU be presumably, 
thereby permanently and continuously prevented from engaging in any 
occupation whatsoever for remuneration or profit, the company shall 
waive payment of each premium as it thereafter becomes due during the 
insured's said disability. In making any settlement under this policy the 
company shall not deduct any part of the premiums so waived, and the 
loan and cash surrender values provided for under section 2 shall increase 
from 5'^ear to year in the same manner as if the premiums so waived had 
been paid in cash. Under all the conditions aforesaid, except that the 
insured shall have attained the age of sixty years before becoming disabled, 
the Company shall waive payment of each premium thereafter becoming 
due during such disabihty, but the face amount of the policy shall be re- 
duced by the amount of each such waived premium, and the loan and cash 
surrender values as provided for under section 2 shall be based upon said 
reduced amount of insurance in the same manner as if the premiums for 
such reduced amount of insurance had been dulj^ paid. 



40 OPINIONS OF THE ATTORNEY-GENERAL. 

Upon SO much of the paragraph above quoted as provides 
that in case the insured becomes wholly disabled by bodily 
injury or disease so as to be prevented permanently and con- 
tinuously from engaging in any occupation for remuneration or 
profit after he has attained the age of sixty years, "the Com- 
pany shall waive payment of each premium thereafter becoming 
due during such disability, but the face amount of the policy 
shall be reduced by the amount of each such waived premium," 
you require my opinion as to whether or not "it is actually a 
waiver of a premium when the company immediately reduces 
the amount of the insurance by the so-called waived premium," 
and, also, "whether the statute permits a change in the policy 
by a reduction from the amount of insurance upon the happen- 
ing of the contingency in question, viz., total and permanent 
disability." 

In my opinion, the amendment effected by St. 1912, c. 524, 
§ 1, was not intended to permit any general combination of life 
and disability insurance in a single policy, but was limited to 
and included within its terms only benefits conditioned upon 
disability conferred by waiver of premiums or by special sur- 
render values. 

It is well settled that a waiver is an intentional relinquish- 
ment of a known right (Shaiv v. Spencer, 100 Mass. 382, 395; 
Worcester v. Piatt, 128 Mass. 367, 372; United Firemen's Insur- 
ance Co. V. Thomas, 82 Fed. Rep., 406, 408); and the waiver 
of a premium, to fall within the terms of the statute, must be 
a voluntary relinquishment of such premium either in whole or 
in part. If the effeqt of the provision in the policy now before 
me were merely to relieve the insured from the burden of paying 
his annual premium and to charge the full amount thereof 
against him, by making a corresponding reduction in the obliga- 
tion of the company as set forth in the policy contract, the 
transaction might well be held to fall short of a waiver of pre- 
mium, since the company would still be receiving from another 
source the full amount of the premium and so would relinquish 
nothing. It is to be observed, however, that the deduction from 
the face of the policy is not a deduction of the amount of the 
premium in money but in insurance not presently payable, the 



JAMES M. SWIFT, ATTORNEY-GENERAL. 41 

value of which is at all times less than the amount of the pre- 
mium; and to the extent of such difference, therefore, there is 
a voluntary relinquishment of premium upon the part of the 
company, or, in other words, a partial waiver of premium which 
in my opinion satisfies the requirements of St. 1907, c. 576, 
§ 34, as amended by St. 1912, c. 524, § 1. 

With respect to the reduction of the face of the policy, I am 
further of opinion that said amendment does not, in the precise 
terms of your second inquiry and as an independent proposition, 
"permit a change in the policy by a reduction from the amount 
of insurance upon the happening of the contingency in question, 
viz., total and permanent disability." In the particular case 
under consideration, however, such reduction must be taken in 
connection with the partial waiver of premium and, in my opin- 
ion, may fairly be said to be incidental thereto (see MetroimlitaJi 
Life Insurance Co. v. Insurance Commissioner, 208 Mass. 386), 
and, therefore, permitted by the statute. 



Constitutional Law — Legislature — Delegation op 
Legislative Powder — Act creating Judicial District 
— Submission to Voters of District — Right to 
require Opinion of Justices of Supreme Judicial 
Court — Important Question of Law. 

The Legislature may constitutionally enact a statute providing that the county 
of Nantucket shall constitute a judicial district, under the jurisdiction of a 
court to be called the district court of Nantucket and that the act "shall be 
submitted to the voters of the county of Nantucket at the annual state 
election in the current year, and if accepted by a majority of the voters 
voting thereon it shall take effect immediately so far as the appointment 
and qualifying of the justices of the court are concerned, and for the re- 
mainder of the act it shall take effect on the first day of January in the year 
nineteen hundred and fourteen." 

It is doubtful if an inquiry as to the power of the Legislature to enact a statute 
which shall take effect upon acceptance by a majority of the voters in such 
district voting thereon presents such an important question of law as would 
authorize a request for an opinion of the justices of the Supreme Judicial 
Court. 

In response to your inquiry as to whether or not section 5 of commiwee'^on 
House Bill Xo. 2159, now pending, a copy of which you en- xhlrd^Rea^ding. 
close, is constitutional, and also " whether or not the constitu- Marcif 29. 
tionality of said section is so doubtful as to require in your 



42 OPINIONS OF THE ATTORNEY-GENERAL. 

judgment an opinion of the justices of the Supreme Judicial 
Court before the bill containing that section shall be enacted 
into law," I have the honor to submit herewith my opinion. 

The bill to which your question refers is entitled "An Act to 
establish the district court of Nantucket," and provides in sec- 
tion 1 that — 

The county of Nantucket shall constitute a judicial district, under the 
jurisdiction of a court to be called the District Court of Nantucket. 

Section 5 is as follows: — 

This act shall be submitted to the voters of the county of Nantucket at 
the annual state election in the current year, and if accepted by a majority 
of the voters voting thereon it shaU take effect immediately so far as the 
appointment and qualifjing of the justices of the court are concerned, and 
for the remainder of the act it shall take effect on the first day of January 
in the year nineteen hundred and fourteen. 

The precise nature of the constitutional question upon which 
the committee desires to be advised is not stated, but I assume 
that it relates to the power of the Legislature to make the act 
effective upon acceptance by a majority of the voters of the 
county of Nantucket. 

The right of the Legislature to delegate some of its legislative 
functions to agencies of the State or to municipalities is well 
established. Thus, it may delegate to State or local adminis- 
trative boards or officers the working out of details under a 
legislative act (CommonweaUh v. Sisson, 189 Mass. 247, 252; 
Nelson v. State Board of Health, 186 Mass. 330; Sprague v. 
Dorr, 185 Mass. 10), and this extends to authority given to 
State or local boards or officers to make rules and regulations 
which are punishable like breaches of the peace {Brodhine v. 
Revere, 182 Mass. 598), subject to the condition that such rules 
and regulations shall not change a general law effective through- 
out the Commonwealth. See Wyeth v. Cambridge Board of 
Health, 200 Mass. 474, 481. 

With respect to the delegation of legislative powers to be ex- 
ercised in accepting legislation passed by the General Court and 



JAMES M. SWIFT, ATTORNEY-GENERAL. 43 

to become effective upon acceptance, it is well settled that, while 
the power to accept a general law by a vote of all the people 
may not be delegated, laws relating to cities and towns which 
are local in their nature, so that they may be differently dealt 
with in different places, may be made to take effect upon 
acceptance by the voters in the municipalities to which they are 
applicable. Opinion of the Justices, 160 Mass. 587. Thus, it 
is stated in Brodbine v. Revere, supra, p. 600, that there is a 
well-known exception to the rule that the Legislature may not 
delegate the general power to make laws, "namely, the existence 
of town or other local governmental organizations which have 
always been accustomed to exercise self-government in regard 
to local police regulations and other matters affecting peculiarly 
the interests of their own inhabitants. On this account the 
determination of matters of this kind has been held to be a 
proper exercise of local self-government which the Legislature 
may commit to a city or town." And the court cites Cominon- 
wealth V. Bennett, 108 Mass. 27; Stone v. Charlestoum, 114 
Mass. 214; and the Opinion of the Justices, 160 Mass. 586, 589. 

The only question presented by your inquiry, therefore, is 
whether or not the rule so established extends to and includes 
the establishment of a judicial district by the acceptance by the 
people thereof of the act constituting it. 

I can see no reasonable distinction in principle between the 
acceptance by the voters of a city or town of a statute which 
deals with the local affairs of that city or town and the accept- 
ance by the voters of any other governmental subdivision of a 
question which deals with its local affairs, whether it be a 
county, a water or fire district or a judicial district. Thus, it 
has been held that a provision in a statute relating to the in- 
corporation of irrigation districts that the question whether any 
proposed district shall be organized thereunder may be deter- 
mined by vote of the citizens of such district is not a delegation 
of legislative power. Fallhrook Irrigation District v. Bradley, 
164 U. S. 112. So, also, of the approval of an act changing the 
boundaries of two adjoining counties by a two-thirds vote of the 
voters in the territory affected. Jackson v. State, 131 Ala. 2L 



44 OPINIONS OF THE ATTORNEY-GENERAL. 

See, as to counties, People v. Saline, 176 111. 165; Ex parte 
Burnside, 86 Ky. 423; Black v. Commissioners of Buncombe 
County, 129 N. C. 121; Ems v. Hudson, 36 Mont. 135. 

The fact that the governmental unit to be constituted is a 
judicial district does not, in my opinion, affect the question ad- 
versely. The constitutional provision that "the general court 
shall forever have full power and authority to erect and consti- 
tute judicatories and courts of record, or other courts . . ." 
(Part the Second, c. 1, § 1, Art. III.) may be exercised in the 
same manner as its authority "from time to time to make, or- 
dain, and establish, all manner of wholesome and reasonable 
orders, laws, statutes, and ordinances, directions and instruc- 
tions, ... as they shall judge to be for the good and welfare 
of this commonwealth" (Art. IV.). See Russell v. Howe, 
12 Gray, 147. While it is true that in practice the acceptance 
of ,statutes by popular vote has generally been limited to acts 
relating to matters of local regulation affecting peculiarly the 
interests of the inhabitants of cities and towns, such practice 
does not affect the principle. There is no reason why the same 
authority may not be conferred Upon local governmental organi- 
zations other than cities and towns. See language in Brodhine 
V. Revere, supra, p. 600. In Rutter v. Sullivan, 25 W. Va. 427, 
it was held that an act constituting a municipal court for the 
city of Huntington, which provided that it should be submitted 
to the voters of said city, and, if accepted by a majority of 
them, should be effectual, and if not so accepted, should be of 
no effect, was constitutional; and I see no reason why the 
same result should not be reached where the question is sub- 
mitted to the voters of a county instead of a city or town. 

With respect to your second question it may be doubted 
whether this is the kind of inquiry upon which the court is 
required to express an opinion. See Opinion of the Justices, 
211 Mass. 630; 208 Mass. 614; 150 Mass. 598; 148 Mass. 623; 
and 122 Mass. 600. But whether or not it is to be treated as 
such an important question of law, I do not think that it may 
properly be said to be so doubtful as to require such an opinion. 



JAMES M. SWIFT, ATTORNEY-GENERAL. 45 



Street Railways — Authority to become Common Car- 
riers OF Express Matter and Freight — Regulations 
AND Restrictions — Board of Railroad Commissioners 
— Approval. 

Where, under the provisions of St. 1907, c. 402, § 1, 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 the board of aldermen or the selectmen in such city 
or town and the Board of Railroad Commissioners shall by order approve, 
and that if the board of aldermen or selectmen act adversely upon the pe- 
tition of the company or fail to act within sixty days from the date of the 
filing thereof, the petitioner or interested party may present a petition to 
the Board of Railroad Commissioners, who, if public necessity and con- 
venience require the granting of such petition, shall make an order 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 railroad 
commissioners public necessity and convenience require, the board of 
selectmen of a town had authorized a street railway to become a common 
carrier of newspapers, baggage, express matter and freight, and thereafter, 
before any action was taken by the street railway company to obtain the 
approval of the Board of Railroad Commissioners, duly revoked its order, 
such revocation does not constitute adverse action upon the petition which 
would authorize the Board of Railroad Commissioners to receive and act 
upon such petition. If, however, no further action was taken within sixty 
days of the date of the filing of the petition, the selectmen have failed to 
act within the meaning of the provision above cited, and the Board of Rail- 
road Commissioners would be authorized to entertain a petition by the 
street railway company or any other interested party, and, after public 
notice and a hearing, to determine whether or not public necessity and 
convenience required the granting thereof. 

Where a board of selectmen, in an order approving of a street railway becoming 
a common carrier of newspapers, baggage, express matter and freight under 
the provisions of St. 1907, c. 402, includes therein illegal limitations or con- 
ditions, the Board of Railroad Commissioners may disregard such illegal 
limitations and conditions and may approve such matters contained in the 
order as the board of selectmen was authorized to include therein. 

You have submitted for my consideration certain general Jf°Rai1road'^^ 
inquiries relative to the application of the provisions of St. Commissioners. 
1907, c. 402, § 1. This section is as follows: — ^^^^• 

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 
aldermen or the selectmen in such city or town and the board of railroad 



46 OPINIONS OF THE ATTORNEY-GENERAL. 

commissioners shall by order approve. If the board of aldermen or select- 
men 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 peti- 
tioner 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 companj^ 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 public necessity and convenience require. Any street 
railway company acting under authorit}^ 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 railroad commissioners, and 
shall also be subject to the provisions of all laws now or hereafter in force 
relating to common carriers so far as they shall be consistent herewith 
and with said regulations and restrictions. The authority conferred upon 
any street railway company by virtue of the provisions of this act may at 
any time be revoked or terminated in any city 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. 

You inquire : — 

(1) Assuming that the board of selectmen have by an order after notice 
and hearing authorized a street railway company to become a common 
carrier of newspapers, baggage, express matter and freight in accordance 
with the provisions of chapter 402 of the Acts of 1907, and that before 
any action is taken by the street railway company to obtain approval of 
the Board of Railroad Commissioners the board of selectmen revokes its 
order. Does this constitute an adverse action by the board of selectmen 
which authorizes the Board of Railroad Commissioners to act upon a peti- 
tion of the street railway company to become a common carrier if public 
necessity and convenience require the granting of such petition in accord- 
ance with the provisions of said chapter? 

Upon the assumption above stated, that the order of approval 
made by the selectmen was duly revoked by them, I am of 
opinion that such revocation is not to be regarded as adverse 
action upon the petition before them, but that if thereafter no 
further action was taken within sixty days of the date of the 
filing of said petition, the selectmen have failed to act within 



JAMES M. SWIFT, ATTORNEY-GENERAL. 47 

the meaning of the statute and the Board of Raih-oad Commis- 
sioners would be authorized to entertain a petition by the street 
railway company or any other interested party, and, after 
public notice and a hearing, to determine whether or not public 
necessity and convenience require the granting of such petition. 

(2) Assuming that a board of selectmen in an order approving of a 
street railway companj^ becoming a common carrier of newspapers, bag- 
gage, express matter and freight under the provisions of chapter 402 of 
the Acts of 1907 include in that order certain provisions which the Board 
of Raihoad Commissioners deems improper or illegal, such as a twenty- 
year limitation or requiring the street railway company to light the streets 
of the town, can the Board of Railroad Commissioners approve of said 
order eliminating in its order such provisions as it deems improper or 
illegal? 

I am of opinion that the statute above quoted does not au- 
thorize the selectmen of a town, in making an order approving 
the carrying on by a street railway company of the business of 
a common carrier of newspapers, baggage, express matter and 
freight, to impose a limitation upon the duration of the fran- 
chise or conditions requiring the lighting of the streets or other 
similar services. The procedure of the Board, however, with 
respect to an order containing such provisions w^hich is pre- 
sented for approval, raises a more difficult question. It might 
well be argued that, since the approval of the selectmen is con- 
ditioned upon limitations and requirements which are illegal 
and, therefore, of no binding force and effect, the order as a 
whole should be treated as a nullity, and the moving party 
should be required to petition the Board to make an order in 
the premises upon the ground that the selectmen had failed to 
act within the required period of time. Upon the other hand, 
it has been held that the acceptance of a grant of location by a 
street railway company does not make valid conditions which 
the selectmen could not legally impose. Keefe v. Lexington 
& Boston Street Railwai/ Co., 184 Mass. 183, 185. And the 
invalidity of such conditions does not render invalid the grant 
of the location. See Keefe v. Lexington & Boston Street Railway 
Co., supra; Selectmen of Wellesley v. Boston & Worcester Street 



48 OPINIONS OF THE ATTORNEY-GENERAL. 

Railway, 188 Mass. 250. In the case suggested by your in- 
quiry, therefore, there would seem to be authority for the con- 
clusion that the imposition of illegal limitations or conditions 
would not render void so much of the order of the selectmen as 
purported to approve the operation of the street railway com- 
pany as a common carrier, the cases in which, the parts 'of its 
railway upon which, and the extent to which it should so act. 
This in my opinion is the better view, and it would follow that 
the Board of Railroad Commissioners would be authorized to 
approve such of the matters contained in said order as the 
selectmen might legally include therein. 



Flats — Cultivation of Food and Bait Mollusks — Grant 
FROM THE Commonwealth to Private Individuals of 
Right to control Area between High and Low Water 
Mark — Eminent Domain — Constitutional Law. 

A proposed bill to authorize the Cominissioners on Fisheries and Game, acting 
in behalf of the Commonwealth, to grant a license for not more than fifteen 
years to any inhabitant of the Commonwealth to plant, grow and dig mol- 
lusks or to plant shells for the purpose of catching moUusk seed, upon and 
in any territory below mean high water mark, which contemplates not only 
the granting of the exclusive right to take shellfish for such period and to 
plant and grow mollusks and to plant shells for the purpose of catching 
mollusk seed upon the area defined in such license, but also the entire ex- 
clusion of the owner, where such flats are subject to private ownership, 
from any use or occupation of such flats by inclosure or filling, cannot be 
justified as the imposition, under the police power, of a reasonable regulation, 
limitation or restraint in the use and enjoyment of property to prevent the 
same from being injurious to others, and constitutes so material an inter- 
ference with existing rights of property in such areas as to amount to an 
exercise of the power of eminent domain without due provision for com- 
pensating the owner of the property taken; and such bill, if enacted, would 
be unconstitutional and void. 

Committee"on You liavc Submitted to me the following inquiry: — 

Fisheries and 

i^^' May the Commonwealth constitutionally provide for leasing to private 

^^y ^- individuals the right to control the area between high and low water 

marks upon tidal flats, as provided in sections 2 and 5 of the proposed act 

relating to the cultivation of food and bait mollusks, which is submitted 

herewith? 



JAMES M. SWIFT, ATTORNEY-GENERAL. 49 

The sections to which you refer are as follows : — 

Section 2. The commissioners on fisheries and game may, by wi'iting 
under their hands, grant a hcense, for a term not exceeding fifteen years, 
to any inhabitant of the commonwealth to plant, grow and dig mollusks 
at all times of the j^ear or to plant shells for the purpose of catching mol- 
lusk seed, upon and in any territory, as hereinafter specified and described, 
below mean high water mark, upon such terms and conditions as they may 
deem proper, not, however, materially obstructing navigable waters. 



Section 5. The available territory for the growth and planting of 
moUusks shall be divided into two classes; the shallow waters near shore, 
including the flats, creeks, inlets and bays, which shall be allotted to the 
smaller planters; and the deep or more exposed waters, which shall be 
leased to individual planters, partnerships or corporations, who shall give 
suitable guarantee of sufficient capital to develop the same. Due regard 
for the public fisheries shall be given by the commissioners on fisheries 
and game in granting these licenses. 

The question of the committee requires my opinion upon the 
constitutionality of the provision for the granting by the Com- 
monwealth of licenses to individuals, for a fixed term of years, 
to cultivate mollusks upon flats below mean high water mark 
and above extreme low water mark. 

By the colon}- ordinance of 1641-47 it was provided that 
every inhabitant who was a householder should have free fishing 
and fowling in any great ponds and bays, coves and rivers so 
far as the sea ebbs and flows, within the precincts of the town 
in which he lived, unless the town had otherwise appropriated 
them, and that in all creeks, coves and other places upon tide- 
waters the proprietors of the upland adjoining should have prop- 
erty to the low water mark where the sea does not ebb above 
one hundred rods and no more whatsoever it ebbs, and, further, 
that such proprietors should not have power to stop or hinder 
the passage of boats or other vessels to any other man's houses 
or lands. See Commonwealth v. Roxhury, 9 Gray 451 (note). 

The eft'ect of the colony ordinance is stated in Commomvealth 
V. Alger, 7 Cush. 53, 79, to be — 

That it vested the property of the flats in the owner of the upland in 
fee, in the nature of a grant; but that it was to be held subject to a general 



50 OPINIONS OF THE ATTORNEY-GENERAL. 

right of the pubUc for navigation until built upon or inclosed, and subject 
also to the reservation that it should not be built upon or inclosed in such 
manner as to impede the public right of way over it for boats and vessels. 

Again, in Henry v. Newburyport, 149 Mass. 582, 585, in 
speaking of the colony ordinance, the court said: — 

This secured to such proprietor, not merely an easement, but a property 
in the land in fee, with full power to reclaim the flats by building wharves, 
or inclosing them, so as to exclude navigation, provided he did not cut off 
his neighbors' access to their houses or lands. He could erect wharves or 
other structures thereon, could fill up the same, and plant stakes thereon, 
even to the obstruction of the public right of fishing. 

The proprietor of the upland, therefore, has a right of prop- 
erty in the adjacent flats between high and low water mark, or 
between high water mark and a point one hundred rods distant 
therefrom where the sea ebbs more than one hundred rods, of 
which he may be deprived only by the exercise of the powder of 
eminent domain. See Boston & Roxbury Mill Corporation v. 
Newman, 12 Pick. 467; Ashby v. Eastern Railroad Co., 5 Met. 
368; Drury v. Midland Railroad, 127 Mass. 571. Subject to 
the provisions of R. L., c. 96, § 17 (1 Op. Atty.-Gen. 412), he 
may exclude navigation from his own flats by building wharves 
or other structures down to extreme low water mark, or for one 
hundred rods, as the case may be, if not prohibited by legisla- 
tion from so doing, and if the structures so erected do not 
materially impede the general navigation of the tidewaters of 
the bay, cove or river upon which they are situated, or cut oflf 
access to neighboring houses or lands (Keene v. Stetson, 5 Pick. 
492, 495; Davidson v. Boston & Maine Railroad, 3 Cush. 91, 
105; Boston v. Richardson, 105 Mass. 351, 359), or interfere 
with the public right of fishing thereon by planting stakes. 
Locke V. Motley, 2 Gray, 265. As was stated by the court in 
Butler V. Attorney-General, 195 Mass. 79, 83 — 

Except as against public rights, which are protected for the benefit of 
the people, the private ownership is made perfect. 



And these public rights of fishing, fowling and boating may 
be exercised only so long as the flats are unused and uninclosed. 



f 



JAMES M. SWIFT, ATTORNEY-GENERAL. 51 

See Commomvealth v. Alger, 7 Cush. 53, 79; Weston v. Samp- 
son, 8 Cush. 347, 354; Lakeman v. Burnham, 7 Gray, 437, 441. 

The bill submitted purports to authorize the Commissioners 
on Fisheries and Game, acting in behalf of the Commonwealth, 
to grant a license for not more than fifteen years to any in- 
habitant of the Commonwealth to plant, grow and dig mollusks 
or to plant shells for the purpose of catching mollusk seed upon 
and in any territory below mean high water mark. For the 
purposes specified the existing public right would permit no 
more than an entrance upon the flats for the taking of shell- 
fish. See Packard v. Ryder, 144 Mass. 440, and cases cited. 
The proposed license, however, contemplates not only the grant- 
ing of an exclusive right to take shellfish for a period not ex- 
ceeding fifteen years and to plant and grow mollusks and to 
plant shells for the purpose of catching mollusk seed upon the 
area defined in such license but, also, by implication, the entire 
exclusion of the owner from any use or occupation thereof by 
inclosure or filling. See sections 14 and 17. 

The exercise of the authority so established cannot, in my 
opinion, be justified as the imposition, under the police power, 
of a "reasonable regulation, limitation or restraint in the use 
and enjoyment of property which shall prevent the same from 
being injurious to others," such as the establishment of harbor 
lines, as sustained in Commonwealth v. Alger, 7 Cush. 53, 85, 
or the prohibition of the removal of sand or gravel from beaches, 
as sustained in Commonwealth v. Tewkshury, 11 Met. 55, nor 
can it be regarded as merely a reasonable or proper regulation 
of or limitation upon the public right of fishing, such as was 
sustained in Comvionwealth v. Vincent, 108 Mass. 441, and 
Commonwealth v. Weatherhead, 110 Mass. 175 (see, also, Wa- 
tnppa Reservoir Co. v. Fall River, 147 Mass. 548, 557); for, in 
addition to the regulation of the public right, the owner of the 
fee in any flats between mean high water mark and extreme 
low water mark is deprived of all use and enjoyment thereof 
for the duration of any license or licenses in which from time to 
time such flats may be included. This constitutes so material 
an interference with existing rights of property in such areas as 



52 OPINIONS OF THE ATTORNEY-GENERAL. 

to require me to hold that the bill in effect authorizes an 
exercise of the power of eminent domain without making due 
provision for compensating the owner of the property taken, 
and that, so far as its provisions purport to confer upon the 
Commissioners on Fisheries and Game authority to lease any 
area between high and low water mark which is the subject of 
private ownership, they will, if enacted, be unconstitutional 
and void. 



Register of Deeds — Fee — Minimum Charge for Record- 
ing Deeds, Mortgages and Other Instruments. 

The provision contained in St. 1912, c. 502, § 25, entitled "An Act to shorten the 
forms of deeds, mortgages and other instruments relating to real property," 
that "fees for recording instruments drawn in accordance with the provisions 
of this act shall be the same as those now required by law, but in no case 
shall the charge for recording a deed or conveyance be less than sixty-five 
cents, and in no case shall the charge for recording a mortgage be less than 
one dollar and twenty-five cents," establishes a minimum fee which is ap- 
plicable to all deeds and mortgages whether or not they conform to the 
provisions of St. 1912, c. 502. 

Controller of Scctiou 25 of chapter 502 of the Acts of 1912, entitled "An 

Accounts. Act to sliortcu the forms of deeds, mortgages and other instru- 

1913 

Mayi. ments relating to real property," provides as follows: — 

Fees for recording instruments drawn in accordance with the pro\'i- 
sions of this act shall be the same as those now required by law, but in no 
case shall the charge for recording a deed or conveyance be less than 
sixty-five cents, and in no case shall the charge for recording a mortgage 
be less than one dollar and twenty-five cents. 

You inquire "whether the minimum charge established by 
this section relates only to instruments 'drawn in accordance 
with the provisions of this act' or applies to all instruments 
whether drawn in accordance with this act or otherwise." 

The fees for recording instruments, now required by law, are 
established by R. L., c. 204, § 29, which as amended by St. 
1908, c. 365, and St. 1910, c. 273, provides: — 

The fees of registers of deeds shall be as follows : — 

For entering and recording a deed or other paper, certifying the same 



JAMES M. SWIFT, ATTORNEY-GENERAL. 53 

on the original, and indexing it, and for all other duties pertaining thereto, 
twenty-five cents. If it contains more than one page, at the rate of 
twenty cents for each page after the first: 'provided, however, that if the 
deed or other paper contains the names of more than two parties thereto, 
other than the husband or wife of the grantor or grantee, an additional 
fee of ten cents each shall be charged for indexing the names of additional 
grantors or grantees or other parties thereto. The fees shall be paid 
when the instrument is left for record. 

For all copies, at the rate of twenty cents a page. 

For entering in the margin a discharge of a mortgage, twenty-five cents. 

For entering a discharge of an attachment or of a lien on buildings and 
land, if such discharge is certified by them, twenty-five cents. 

For entering a partial release of an attachment, twentj^-five cents. 

The language of section 25 warrants a conclusion that the 
Legislature intended to establish minimum recording charges 
for deeds and mortgages which should be uniform in applica- 
tion, and in my opinion the provision to which your inquiry is 
directed should be construed to apply to all deeds and mort- 
gages, whether or not they conform to the provisions of St. 
1912, c. 502. 

Constitutional Law — Appointment of Executive or 
Administrative Board or Commission — Confirmation 
BY Justices of Supreme Judicial Court. 

A proposed act which provides that members of a commission established to con- 
serve a water supply of a city shall be appointed by the mayor of said city 
and that such appointment shall be confirmed by the justices of the Supreme 
Judicial Court where the commission so appointed is an executive or ad- 
ministrative department of the municipality and performs no duty properly 
incidental to the administration of justice in or by the courts, if enacted 
would be unconstitutional and void. 

On behalf of the Committee on Water Supply you have xothe 
inquired whether or not it is " constitutional and lawful for the water Supply. 

1913 

Legislature to provide that members of a commission appointed May 7. 
to conserve a w^ater supply of a city shall be appointed by the 
mayor of said city and that the said appointment shall be con- 
firmed by the justices of the Supreme Judicial Court." 

Since the appointments of the commissioners are to be made 
by the mayor of the city, I assume that the commission, when 



54 OPINIONS OF THE ATTORNEY-GENERAL. 

constituted and established, is intended to form an executive 
or administrative department of the municipaUty which is not 
in any way directly responsible to the Supreme Judicial Court, 
does not return to said court an account of its doings for any 
judicial action in the premises, and performs no duty which is 
properly incidental to the administration of justice in or by 
the courts. Upon this assumption, I am of opinion that the 
confirmation of such appointments does not involve the exercise 
of any judicial function and, therefore, cannot be imposed upon 
the justices of the Supreme Judicial Court, or any of them, and 
that the provision to which your inquiry refers, if enacted, will 
be unconstitutional and void as being in contravention of the 
provision of Article XXX. of the Declaration of Rights, that 
"the judicial (department) shall never exercise the legislative 
and executive powers, or either of them." See case of Super- 
visors of Election, 114 Mass. 247. 



Vetekan in the Service of the Commonwealth — Re- 
tirement — Elective Officer. 

The provision of St. 1907, c. 458, § 1, 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, . . ." does not apply to 
elective officers and therefore does not include registers of probate. 

To the Auditor Uudcr date of May 17 you inquire whether or not a register 

of the Common- k/ ^ j. ^ ^ o 

^\fit ^^ probate who complies with the conditions and requirements 

^!Li^- of chapter 458 of the Acts of 1907 is eligible for retirement 

thereunder. This statute provides in section 1 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 the Common- 
wealth: provided, that no veteran shall be entitled to be retired under 
the provisions of this act unless he shall have been in the service of the 
Commonwealth at least ten years. 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 



JAMES M. SWIFT, ATTORNEY-GENERAL. 55 

service, he msiy so be retired at any time. A veteran retired under the 
provisions of this act, whose term of service was for a fixed number of 
years, shall be entitled to the benefits of the act without reappointment. 

Registers of probate receive salaries from the Commonwealth 
and are, therefore, in the service of the Commonwealth, if 
elective officers may be said to be in such service. 

The phrase "service of the Commonwealth" is broad enough 
to include elective officers, but I am of opinion that the statute 
was not intended to apply to them. For one reason, it vests 
in the Governor and Council the power to retire the incumbent 
of an office at any time wdien the good of the service, in the 
judgment of the Governor and Council, may so require, and 
this right seems to me to be too sweeping and novel to have 
been intended to be applicable to elective officers generally. 
Again, in the concluding sentence, it is stated that "a veteran 
retired under the provisions of this act, whose term of service 
was for a fixed number of years, shall be entitled to the benefits 
of the act without reappointment." If elective officers had been 
included, it seems to me the words "or re-election" would have 
been used. 

I therefore answ^er your inquiry in the negative. 



Street or Elevated Railw^ay Company — Employee — 
Hours of Labor. 

A proposed act providing that "a day's work for all conductors, guards, drivers, 
motormen, brakemen and gatemen who are employed by or on behalf of a 
street railway or elevated railway company shall not exceed nine hours, 
and shall be so arranged by the employer that it shall be performed within 
eleven consecutive hours," and that "on legal holidays and on Sundays 
and in case of accident or unavoidable delay extra labor may be performed 
for extra compensation," if enacted, would prohibit the employment by a 
street railway or elevated railway company of any employee, even if such 
employee so desired, for more than nine hours in any one day, such employ- 
ment to be performed in eleven consecutive hours, except on legal holidays 
and on Sundays or in case of accident or unavoidable delay. 

I have the honor to submit herewith my opinion with refer- to the House ^ 
ence to the order passed on May 26, 1913, and submitted to Lntofiws.""' 
me under date of May 27, as follows: — June 2. 



56 OPINIONS OF THE ATTORNEY-GENERAL. 

Ordered, That the opinion of the Attorney-General be requested upon 
the following important question, to wit: Under House Bill No. 2518 
can an employee of the character mentioned in the bill, if he so desires, 
work longer hours than those prescribed in the bill? 

House Bill No. 2518 reads as follows: — 

Section 1. Chapter five hundred and tliirty-three of the acts of the 
year nineteen hundred and twelve is hereby amended by striking out 
sections two and tliree and inserting in place thereof the following: — 
Section 2. A day's work for all conductors, guards, drivers, motormen, 
brakemen and gatemen who are employed bj^ or on behalf of a street 
railway or elevated railway company shall not exceed nine hours, and 
shall be so arranged by the employer that it shall be performed within 
eleven consecutive hours. No officer or agent of anj'- such company 
shall require from said employees more than nine hours' work for a daj^'s 
labor. Threat of loss of emploj^ment or threat to obstruct or prevent 
the obtaining of emplojanent by the emplo3^ees, or threat to refrain from 
employing any employee in the future shall be considered coercion and 
"requiring" within the meaning of this section. On legal holidays and 
on Sundays and in case of accident or unavoidable delay extra labor 
may be performed for extra compensation. 

Section 2. A company which violates any provision of this act shall 
forfeit for each offence not less than one hundred dollars nor more than 
five hundred dollars. 

Section 3. This act shall not affect any written contract existing at 
the date of its passage. 

For the purposes of this inquiry I assume the question to be 
whether or not it will be lawful for an employee affected by said 
bill, if he so desires, to work longer hours than those prescribed 
in the bill. In its final analysis the question resolves itself into 
an inquiry as to whether or not a street railway company which 
would be affected by the passage of this bill may permit labor 
to be performed outside of the time prescribed in said bill. 

It is a familiar rule of interpretation of statutes that when 
certain exceptions are named in an act, other exceptions are 
thereby excluded. The natural conclusion under this rule 
would therefore be that when the last sentence of section 1 of 
the bill makes certain exceptions to its prohibitions, in the 
following language: "On legal holidays and on Sundays and 



JAMES M. SWIFT, ATTORNEY-GENERAL. 57 

in case of accident or unavoidable delay extra labor may be 
performed for extra compensation," the exceptions so named 
are the only occasions when the employee may perform labor 
outside of the time prescribed in said section. Consideration 
of previous legislation covering the same subject confirms this 
conclusion. Section 3 of chapter 533 of the Acts of 1912 pro- 
vides as follows with reference to this particular contingency: — 

On legal holidaj-s and on Sundays and in case of unavoidable delay 
or other emergency, or at any time at the request of the employee, extra 
labor may be performed for extra compensation. 

It is to be noted that the present bill omits the words "or 
other emergency, or at any time at the request of the em- 
ployee," thereby showing the intention to eliminate the occasions 
so omitted and to limit more definitely the exceptions to those 
contained in the bill under consideration, which, it may be 
observed, include the word "accident," which was not in the 
1912 act. The conclusion therefore seems to be irresistible that 
this bill should be construed to limit the labor of employees 
covered by it so that it shall not exceed nine hours, so arranged 
that it shall be performed within eleven consecutive hours, 
except on legal holidays and on Sundays and in case of accident 
or unavoidable delay. I assume that the provision that on 
these occasions "extra labor may be performed" should be 
construed to authorize the employers to require the extra labor 
so permitted. Upon consideration of section 1 alone, I am 
forced to the conclusion that upon any other occasion it will not 
be lawful for the employer to permit other work even if the 
employee so desires it. 

The provisions of section 2, that "a company which violates 
my provision of this act shall forfeit for each offence," etc., 
dso confirms this conclusion. The penalty provided is not 
1 gainst the requirement by the employer of more than nine 
lours' work for a day's labor but is against a violation of any 
jrovision of this act. The provisions declared in said section 1 
vhich might be violated by the employer are: that a day's 
vork shall not exceed nine hours; that they shall be so arranged 



58 OPINIONS OF THE ATTORNEY-GENERAL. 

that the labor may be performed within eleven consecutive 
hours, and that the employer shall not require more than the 
nine hours' work so established. It would seem that under the 
broad provisions of this penalty clause, except as permitted by 
the exceptions hereinbefore referred to, an employer exceeding 
nine hours of labor or permitting such labor to be performed 
outside of the eleven consecutive hours provided by the bill, 
even at the request of an employee, would be subject to the 
penalty so prescribed. The employer, therefore, will be pre- 
vented, in my opinion, from allowing more than the nine hours' 
work except upon the occasions already noted if said House 
Bill No. 2518 becomes a law in its present form. If it is 
desired to leave the situation so that the employee ma}^ if he 
so desires, perform labor outside of the times prescribed in said 
act, I respectfully suggest that the bill should be amended to 
make this clear. 



Statute — Construction of Contradictory Provisions — 
Sale of Eggs which by Reason of Decay or Decom- 
position ARE Unfit for Food — Prohibition. 

The effect of St. 1913, c. 654, § 1, providing that "it shall be unlawful ... to 
sell, offer for sale, expose for sale, or have in possession with intent to sell, 
eggs that are unfit for food within the meaning of this act," is limited to the 
sale, exposure for sale or intent to sell eggs which by reason of decay or de- 
composition are unfit for food, notwithstanding that by section 2 such statute 
is declared to be applicable to "eggs, which, either before or after removal 
from the shell, are wholly or partly decayed or decomposed," and that from 
the viewpoint of the chemist the process of decay or decomposition in eggs 
begins immediately after they have been laid. 

Boa*rd^ ^*''*^ By a letter dated May 24 you have submitted for my con- 

of Health. 

1913 
June 6. 



sideration an inquiry relating to St. 1913, c. 654, which is 
entitled "An Act relative to the sale and use of eggs unfit for 
food." This inquiry is in terms as follows: — 

Section 1 of this chapter states in a general way that eggs that are 
unfit for food shall not be sold, offered for sale, exposed for sale or had in 
possession with intent to sell. 

Section 2 defines under what conditions eggs shall be deemed to be 
unfit for food. This definition, however, would seem to be absolutely 



JAMES M. SWIFT, ATTORNEY-GENERAL. 59 

inadequate, inasmuch as in accordance with expert chemical opinion 
eggs begin to decompose immediately after they are laid, so that strictly 
enforced this law would practically prohibit the sale for food of all eggs 
of whatever age or character. 

Will you not, at your earliest convenience, advise this Board as to 
what lines of action it should pursue under the circumstances? 

Section 1 of chapter 654 provides that — 

It shall be unlawful ... to sell, offer for sale, expose for sale, or have 
in possession with intent to sell, eggs that are unfit for food within the 
meaning of this act. 

Section 2 is as follows: — 

This act shall apply to eggs, which, either before or after removal from 
the shell, are wholly or partly decayed or decomposed, and to eggs in the 
fluid state, anj^ part of which is whoUy or partly decayed or decomposed, 
and to eggs, in the fluid state or otherwise, that are mixed with parts of 
eggs which are derived from eggs that are wholly or partly decayed or 
decomposed. This act shall also apply to frozen masses of broken eggs, 
if the mass contains eggs that are wholly or partly decayed or decomposed, 
or that are mixed with parts of eggs that have been taken from eggs that 
were wholly or partly decayed or decomposed. 

Section 3 provides that — 

It shall be unlawful for any person, firm or corporation, or any officer, 
agent or employee thereof, to use eggs that are either wholly or partly 
decayed or decomposed in the preparation of food products. And it 
shall be unlawful to deliver, sell, purchase or accept wholly or partly 
decaj^ed or decomposed eggs in or at any establishment where food prod- 
ucts are prepared or manufactured. 

Section 5 provides that — 

The state board of health shall enforce the provisions of this act. 

Section 6 provides that — 

Nothing in this act shall be construed to prohibit the purchase, sale 
or possession for other than food purposes of rotten, decaj^ed or partly 
decayed eggs which are unfit for food. 

The provisions above quoted are loosely drawn and inartificial 
in terms, but it is, in my opinion, clear from a consideration of 



60 



OPINIONS OF THE ATTORNEY-GENERAL. 



the act as a whole that it was intended as a prohibition against 
the sale of eggs which by reason of decay or decomposition are 
unfit for use as food. It may be true that standing alone the 
language of sections 2 and 3 is broad enough to include all eggs 
which are wholly or partly decayed or decomposed without 
reference to their fitness or unfitness to be used as food, but if, 
as stated in your inquiry, decomposition and decay in eggs 
begin immediately after they are laid, a literal construction of 
said sections would prohibit any sale of eggs which could not 
have been the intent of the Legislature. The language of these 
sections must, therefore, be so far modified by the other provi- 
sions of the act as to limit the prohibitions contained therein 
to eggs which by reason of decay or decomposition are unfit for 
food. Any other construction would result in an absurdity. 



To the Board 
of Registration 
in Pharmacy. 

1913 
June 11. 



Intoxicating Liquoks — Sixth Class License — Breach 
OF Condition — Termination — Forfeiture — Unlaw- 
ful Sale — Conviction of Clerk of Licensee. 

Under the provisions of R. L., c. 100, § 17, that each license to sell intoxicating 
liquors issued under the provisions of said section shall be subject, among 
others, to the condition "that the license shall be subject to forfeiture, as 
herein provided, for breach of any of its conditions ; and that, if the licensee 
is convicted of a violation of any of such conditions, his license shall there- 
upon become void," the conviction of the clerk of a licensee holding a sixth 
class license of an unlawful sale of intoxicating liquor does not in and of 
itself render such license void, although such conviction constitutes a breach 
of the conditions of such license which renders it liable to forfeiture. 

The Board of Registration in Pharmacy has requested my 
opinion upon the following question: "If the clerk of a licensee 
holding a sixth class license is convicted of the unlawful sale of 
intoxicating liquor, does such conviction render null and void 
and cause a forfeiture of said license, and disqualify said li- 
censee in the same manner as if he, the licensee, had been 
convicted of said unlawful sale?" 

If I understand correctly the question in the minds of the 
Board, the inquiry might be expressed in other words as fol- 
lows: If the clerk employed by a registered pharmacist holding 



JAMES M. SWIFT, ATTORNEY-GENERAL. 61 

a sixth class license to sell intoxicating liquor is convicted of the 
unlawful sale of intoxicating liquor, does the conviction of the 
clerk, in and of itself, without further action by the licensing 
board of the city or town or by the Board of Registration in 
Pharmacy, render null and void the license of the clerk's em- 
ployer, in the same manner as if the employer himself, the 
licensee, had been convicted of said unlawful sale? 

In my opinion the question as stated must be answered in the 
negative. R. L., c. 100, § 17, provides as follows: — 

Each Hcense shall be expressed, to be subject to the following 
conditions : — 

Seventh, That the license shall be subject to forfeiture, as herein pro- 
vided, for breach of any of its conditions; and that, if the licensee is 
convicted of a violation of any of such conditions, his license shall there- 
upon become void. 

It is clear that under this provision of the statute if the em- 
ployer himself, the licensee, is convicted of a violation of any 
condition of his license, it thereupon becomes void without 
further act by any board or commission; but the conviction of 
the employer's clerk is not the conviction of the employer him- 
self, and the provision of the statute that the license shall be 
subject to forfeiture is not the same in effect as the provision of 
the statute that upon conviction of the licensee the license shall 
thereupon become void. 

The unlawful sale of intoxicating liquor by the clerk is a 
breach of the conditions of the license, rendering the license sub- 
ject to forfeiture, but this breach of the conditions of the license 
does not, in and of itself, work a forfeiture of the license. The 
forfeiture itself results from action taken by the licensing board 
under the provisions of R. L., c. 100, § 47, as amended by 
St. 1908, c. 108, which are as follows: — 

The licensing board, after notice to the licensee and reasonable oppor- 
tunity for him to be heard by them or by a committee of the mayor and 
aldermen or selectmen, if the license was granted bv them, may declare 
his license forfeited, or may suspend his license for such period of time as 



62 OPINIONS OF THE ATTORNEY-GENERAL. 

they may deem proper, upon satisfactory proof that he has violated or 
permitted a "violation of any condition thereof, or any law of the common- 
wealth. The pendency of proceedings before a court or justice shall not 
suspend or interfere with the power herein given to decree a forfeiture. . . . 

The same practical result as that following a conviction of a 
violation of a condition of a license and that resulting from 
a forfeiture declared by the licensing board may also be effectu- 
ated by action taken by the Board of Registration in Pharmacy 
under section 23 of chapter 100 of the Revised Laws as finally 
amended by St. 1909, c. 261. By section 23 the Board is 
authorized to issue to registered pharmacists certificates stating 
that in its judgment they are proper persons to be entrusted 
with a sixth class license, and in the final clause of the section 
it is provided — 

The board may, after giving a hearing to the parties interested, revoke 
or suspend such certificate for any cause that it may deem proper, and 
such revocation or suspension shall revoke or suspend the sixth class 
license granted thereon. 

While the jurisdiction of the Board of Registration in Phar- 
macy, under the provision last quoted, is limited to action upon 
the certificate of fitness, so called, yet, if the action of the 
Board is to suspend or revoke that certificate of fitness, such 
suspension or revocation by operation of law causes a sus- 
pension or revocation of the license itself. 

The answer to the question of the Board may, therefore, be 
summed up as follows: In cases where the licensee himself is 
convicted of a violation of the conditions of his license, the li- 
cense becomes void merely through the fact of conviction, and 
no further action by the licensing board or by the Board of 
Registration in Pharmacy is necessary. In cases where there 
has been a breach of any of the conditions of the license, but 
the licensee himself has not been convicted of a violation of the 
conditions of the license, it is necessary for the licensing board, 
after hearing, to declare the license forfeited, in order to effect 
a forfeiture. In cases where the license has not become void 
through conviction of the licensee of a violation of the condi- 



JAMES M. SWIFT, ATTORNEY-GENERAL. 63 

tions of the license, and where the license has not been de- 
clared forfeited by the licensing board, the same practical result 
as under the two methods mentioned may be brought about by 
a revocation or suspension by the Board of Registration in Phar- 
macy of the certificate of fitness granted to the licensee under 
the provisions of R. L., c. 100, § 23, and its amendments. 



Weymouth Back River — Attorney-General — " Cost and 
Expenses" Incidental to Construction of Bridge — 
Apportionment between Commonwealth and Counties 
OF Norfolk and Plymouth — Discount or Interest 
ON Loans. 

In St. 1911, c. 739, as amended by St. 1912, c. 227, whicH established a commission 
to build a bridge over Weymouth Back River, the expense thereof to be 
apportioned between the Commonwealth and the counties of Norfolk and 
Plymouth, the words "cost and expenses," as used in section 7, providing 
that "the cost and expenses incurred under the provisions of this act . . . 
shall be borne as follows: forty-five per cent by the commonwealth of 
Massachusetts, twenty per cent by the county of Norfolk, twenty per cent 
by the county of Plymouth, . . ." do not include interest on money bor- 
rowed by said counties. 

In a letter of recent date you have stated that the commis- to the Auditor 
sion authorized bv chapter 739 of the Acts of the year 1911, as wealth. 

^ '■ 1913 

amended by chapter 227 of the Acts of 1912, to build a bridge June i3 . 
over Weymouth Back River has practically finished its duties, 
and that before the Commonwealth's portion of the cost is paid 
you wish to obtain my opinion upon the question "whether the 
words 'cost and expenses' as used in the first line of section 7 
of chapter 739 of the Acts of 1911 are to be construed as in- 
cluding discount or interest on loans. In other words, is the 
"^tate expected to bear its proportion of the expense for 
interest?" 

It does not appear either from the statements in your letter 
^r from the provisions of the statute referred to how the ques- 
tion presented by you arises in connection with the duties of 
\Our department at the present time in such a manner as to call 
or an opinion as to the rights of the Commonwealth under the 
ict. 



64 OPINIONS OF THE ATTORNEY-GENERAL. 

St. 1911, c. 739, § G, provides as follows: — 

When the said bridge and approaches are completed, and the full cost 
and expenses of the same, including damages, if any, awarded under the 
preceding section are ascertained, the said bridge commissioners shall 
file, in the office of the clerk of the superior court for the county of Norfolk, 
their report of the fact, together with a detailed statement of the amount 
of the cost and expense, whereupon and upon the application of said 
bridge commissioners or of any party interested, and after such notice 
as the court maj^ order, a hearing shall be had upon the approval and 
acceptance of the said statement, and when the same has been approved 
and accepted by the court it shall be binding upon all parties interested. 

I understand that the report and statement of the amount of 
the cost and expense required by the provisions of this section to 
be filed by the bridge commissioners in the office of the Superior 
Court for the County of Norfolk have not yet been filed, for I 
assume that the Commonwealth, through this department, would 
be notified by the bridge commissioners of the filing of such 
report and would be given an opportunity to avail itself of the 
right granted by the section quoted to be heard upon the question 
of the approval and acceptance of the report and statement. 

If I am correct in assuming that the report of the bridge 
commissioners has not yet been filed, it would seem that the 
only officials now having the question of the items to be included ■ 
under "cost and expense" properly before them are the bridge 
commissioners themselves. 

It is at least doubtful whether the bridge commissioners would , 
be entitled to ask for an official opinion from the Attorney- { 
General upon the question, and since the Commonwealth is one . 
of the parties to the apportionment to be made under the stat- i 
ute, and Avill in the usual course be represented by the Attorney- {• 
General in any hearing upon the question of the acceptance and P 
approval of the report of the bridge commissioners filed in court, " 
the Attorney-General so representing a party to the apportion- , 
ment is hardly in a position to give an opinion which should be i 
considered as having a binding force upon the conduct of the ' 
bridge commissioners. 

I assume, however, that at some stage of the proceedings, if ." 



JAMES M. SWIFT, ATTORNEY-GENERAL. 65 

occasion arises, all the parties interested, including the Common- 
wealth, will have opportunity to state their contentions, and, 
upon the theory that this case may have the efl'ect of a prece- 
dent for the determination of other questions which may arise 
in your department, 1 have no objection to stating, for your 
information, my views upon the proper construction of the 
statute, as indicating what the contention of the Commonwealth 
will be if occasion arises for stating the position of the Common- 
wealth upon the matter of the apportionment of the expenses 
incurred under this act. 

In my opinion, the words "cost and expense" as used in the 
act are not to be construed as including interest on money bor- 
rowed by the counties of Norfolk and Plymouth. 

The meaning of the act is, at first glance, somewhat obscured 
by the use of the words "cost and expense" instead of the word 
"cost" alone, but in my opinion the word "expense" adds 
nothing to the word "cost," and nothing is to be construed as 
included under the term "cost and expense" which would not 
have been included under the term "cost" alone. 

Section G of the act quoted above provides that "when the 
said bridge and approaches are completed, and the full cost and 
expenses of the same," that is, the bridge and approaches, in- 
cluding damages, are ascertained, the commissioners shall file 
their report and statement, and that that statement, when ap- 
proved and accepted by the court, shall be binding on all parties 
interested. Section 7 of the act provides as follows: — 

The cost and expenses incurred under the provisions of this act, ap- 
proved by the court as aforesaid, shall be borne as follows: forty-five per 
cent by the commonwealth of ^Massachusetts, twenty per cent by the 
county of Norfolk, twenty per cent bj' the county of PhTiiouth, and 
fifteen per cent bj- any street railway company that may apply for and 
be granted a location on said bridge by the towns of Weymouth and 
Hingham in the manner now provided by law; and the county of Plym- 
outh and the county of Norfolk shall thereupon be reimbursed for such 
sums of money as they have respectively expended under the provisions 
of this act by said parties and to the extent necessary to cause the cost 
and expense as aforesaid to be borne in the proportions aforesaid: "pro- 
vided, however, that any sums that may be received from the United States 



66 OPINIONS OF THE ATTORNEY-GENERAL. 

in reimbursement of these expenditures shall be distributed as follows: 
forty-five per cent to the commonwealth of Massachusetts, twenty per 
cent to the county of Norfolk, twenty per cent to the county of Plymouth, 
and fifteen per cent to the street railway companj^ 

The interest which the counties are required to pay upon the 
money borrowed is not strictly a part of the actual cost of the 
bridge and approaches constructed under the provisions of the 
act. Only the full cost and expense of constructing the bridge 
and approaches is, however, to be included in the statement 
filed by the commissioners under the provisions of section 6 and 
approved by the court under the same section. Under the pro- 
visions of section 7, only the cost and expenses approved by the 
court "as aforesaid" are to be apportioned between the parties. 

The words "cost and expenses incurred hereunder," as used 
in section 2, when considered with the context and in the light 
of decisions of the court under somewhat similar statutes, have 
no broader meaning. 

Under section 2 the county commissioners of Norfolk and 
Plymouth are "authorized and directed to borrow on the credit 
of their respective counties such sums of money as may from 
time to time be required for the said cost and expenses." To 
construe "said cost and expenses," to meet which the county 
commissioners are required to borrow money, as including the 
cost of borrowing that money would be an unusual construction 
of an act of this nature. The words "cost and expenses" are 
rather to be limited to the actual cost of doing the work pro- 
vided for by the act. 

The interest upon the money borrowed is to be regarded as 
a burden which the counties are obliged to assume for the pur- 
pose of putting themselves in a position to do the things which 
they were required to do under the terms of the act. 

The question in its essence is similar to that presented in the 
case of Old Colony Railroad Co., petitioner, 185 Mass. 160. 
The statute under consideration in that case wa^ St. 1892, 
c. 433, which provided in section 2 as follows: — 

The alterations and improvements prescribed by said commission 
shall be made by the Old Colony Railroad Companj-, and the expense 



JAMES M. SWIFT, ATTORNEY-GENERAL. 67 

thereof paid bj^ it, and for that purpose it may issue its stock from time 
to time, etc. 

Section 3 of the same statute provided that the Common- 
wealth should "repay to said railroad company forty-five per 
cent of the cost incurred by said company in carrying out said 
alterations and improvements, as audited and approved by the 
auditors." 

The railroad claimed in that case that money paid by way of 
interest on money used to pay for the alterations was a part of 
the "actual cost." The court said: — 

In a broad sense this is true of a railroad company which is obliged to 
hire money to meet the obUgation imposed by the statute. 

But it held that it was not the intent of the statute to include 
such an item under the term "cost incurred," saying: — 

That such a construction would open the door to let in claims that 
would be not only large in amount, but uncertain and contingent in their 
character, is reasonably clear. 

In my opinion, the reasoning in that decision and in the 
cases cited therein is applicable to the ciuestion presented by 
you. 



68 OPINIONS OF THE ATTORNEY-GENERAL. 



Hours of Labor — Employees of Street and Elevated 
Railway Companies — Regulation — Legislature — 
Constitutional Law — Police Power — Construction 
OF Statute. 

The reasonable regulation of the hours of labor for employees of a street or elevated 
railway company in such a manner as to conserve the health, safety and 
welfare of the public constitutes a proper exercise of the police power. 

In passing an act to provide that "a day's work for all conductors, guards, drivers, 
motormen, brakemen and gatemen who are employed by or on behalf of a 
street railway or elevated railway company shall not exceed nine hours, 
and shall be so arranged by the employer that it shall be performed within 
eleven consecutive hours," it must be presumed that the Legislature had in 
view the protection of the health, safety and welfare of the public, and it 
cannot be said either that such act has no reasonable relation to the object 
for which it was enacted or that the Legislature could not have found, upon 
evidence presented to it, that a condition of affairs existed which required 
its action in the premises. 

Where the question of the constitutionality of a statute is doubtful, the doubt 
should be resolved in favor of the statute. 

Governor of YouF Excelleiicy has requested my opinion upon the con- 

weaith. stitutionaHtv of House Bill No. 2518, entitled "An Act relative 

1913 ^ 

June 14. to the lioui's of labor of employees of street railway companies," 



which is before you for approval or disapproval. The bill in its 
final amended form provides as follows: — 



Section 1. Chapter five hundred and thirty-three of the acts of tb 
year nineteen hundred and twelve is hereby amended by striking oufr 
sections two and three and inserting in place thereof the following: — 
Section 2. A daj^'s work for all conductors, guards, drivers, motormen, 
brakemen and gatemen who are employed by or on behalf of a street 
railway or elevated railway company shall not exceed nine hours, and 
shall be so arranged by the emploj^'er that it shall be performed within 
eleven consecutive hours. No officer or agent of vary such company 
shall require from said employees more than nine hours' work for a day's 
labor. Threat of loss of emplojonent or threat to obstruct or prevent the 
obtaining of employment by the employees, or threat to refrain from 
employing any employee in the future shall be considered coercion and 
"requiring" within the meaning of this section. But nothing herein 
shall prevent an employee of the character mentioned in this act, if he so 
desires, from working more hours than those prescribed in the act for 
extra compensation. 

Section 2. A company which violates any provision of this act shall 



\ 



JAMES M. SWIFT, ATTORNEY-GENERAL. 69 

'orfeit for each offence not less than one hundred dollars nor more than 
ive hundred dollars. 

Section 3. This act shall not affect any written contract existing 
it the date of its passage. 

It hardly needs to be stated that the Attorney-General, in 
idvisino; the Governor of the Commonwealth upon a question 
)f this nature, is not in the position of a court considering the 
'onstitutionality of the act as applied to a specific case which 
las arisen, and that the opinion of the Attorney-General sub- 
nitted in reply to such a question has not the force of an ad- 
udication by the court upon the question of the constitutionality 
>f an act which has arisen in a case between parties before it. 

Nevertheless, such a question presented to the Attorney- 
leneral must be considered within the same limitations within 
/hich it would be considered by the court of last resort in a 
pecific case, since the only effect of an opinion of the Attorney- 
lenerai is to advise the Governor so far as possible as to how 
he Supreme Court might be expected to rule upon the question 
ow presented, in view of the previously decided cases upon the 
uestion. 

It has been repeatedly stated in decisions of both the State 
nd Federal courts that questions having to do merely with the 
olicy of legislation and the judgment exercised by the Legis- 
iture in its enactment are not matters to be reviewed by the 
:)urts. That principle was thus stated in Chicago, Burlington 
• Quincij R.R. Co. v. McGwire, 219 U. S. 549, 569: — 

The scope of judicial inquir}^ in deciding the question of j^oxver is not 
> be confused with the scope of legislative considerations in dealing with 
le matter of -policy. Whether the enactment is wise or unwise, whether 

is based on sound economic theory, whether it is the best means to 
■hieve the desired result, whether, in short, the legislative discretion 
ithin its prescribed limits should be exercised in a particular manner, 
^ e matters for the judgment of the Legislature, and the earnest conflict 
I serious opinion does not suffice to bring them within the range of judicial 
ignizance. 

nd in McLean v. Arkansas, 211 U. S. 547, 548, it is stated as 
)llows : — 



OPINIONS OF THE ATTORNEY-GENERAL. 

The Legislature, being familiar with local conditions, is, primarih'-, 
the judge of the necessity of such enactments. The mere fact that a 
court maj^ differ with the Legislature in its views of public policy, or that 
judges may hold views inconsistent with the propriety of the legislation 
in question, affords no ground for judicial interference, unless the act in 
question is unmistakabl.y and palpably in excess of legislative power. 

The policy of the legislation in question, therefore, I do not 
discuss. 

The Constitution of Massachusetts provides in Part the Sec- 
ond, Chapter I., Section I., Article lY., as follows: — 

And further, full power and authority are hereby given and granted 
to the said general court, from time to time to make, ordain, and estab- 
lish, 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. 

It is to be presumed that the Legislature attempted to act 
under and in accordance w^ith this provision in formulating the 
bill presented, and the judicial question presented is whether, 
in so doing, it has in fact exceeded its constitutional powers. 

The only contention which has been raised in this regard is 
that it unwarrantably deprives those w^ho are subject to it of' 
the liberty guaranteed both by the State and Federal consti- 
tutions, which, it is well established by many decisions, includes 
the right of contract. 

Both property and liberty, however, are held subject to such 
reasonable conditions as may be imposed by the governing 
power in the exercise of those powers called "police powers," 
which do not permit of exact definition but are generally de- 
scribed in the decisions of the United States Supreme Court as 
"relating to the safety, health, morals and general welfare of 
the public." 

The question of regulating the hours of labor for men has 
been one of great difficulty and has resulted in much difference 
of opinion by the courts. It must be settled on considerations 



JAMES M. SWIFT, ATTORNEY-GENERAL. 71 

differing somewhat from those determining the right to regulate 
the hours of governmental employment and the hours of labor 
of women and children. In the case of Holden v. Hardy, 169 
U. S. 366, the court, with two justices dissenting, sustained as 
a valid exercise of the police power a statute of the State of 
Utah entitled "An Act regulating the hours of employment in 
underground mines and in Smelters and ore reduction works," 
which limited to eight hours per day the period of employment 
in all underground mines and in smelters and all other institu- 
tions for the reduction or refinement of ores or metals, except 
in case of emergency. The court, in the course of its opinion, 
said : — 

These employments, when too long pursued, the Legislature has judged 
to be detrimental to the health of the emploj^ees, and, so long as there are 
reasonable grounds for believing that this is so, its decision upon this 
subject cannot be reviewed by the Federal courts. 

In the case of Lochner v. Neic York, 198 U. S. 45, the court, 
with three justices dissenting, reversed a decision of the highest 
court of New York and held unconstitutional a statute limiting 
to sixty hours in any one week the period of employment in a 
biscuit, bread or cake bakery or confectionery establishment, 
and containing no emergency clause, as not within the limits of 
the police power, for the reason that it did not appear that the 
health of either the employees or the public was directly 
involved. 

Some features are presented by the bill now before Your 
Excellency which were not present in the legislation before the 
courts in the cases cited. The employees to which the bill 
applies are employed in operating cars of a street railway com- 
pany. The matter of public safety may, therefore, have been 
considered by the Legislature as directly involved in connection 
with the health of the employee. From the viewpoint of the 
safety of the public it is a matter of common knowledge that a 
high degree of efficiency in the persons operating the cars is 
desirable. In the case of Baltimore &- Ohio R.R. Co. v. Inter- 
state Commerce Commission, 221 U, S. 612, 619, it is said: — 



72 OPINIONS OF THE ATTORNEY-GENERAL. 

The length of hours of service has direct relation to the efficiency of 
the human agencies upon which protection of life and property necessarily 
depend. 

Another distinctive feature of the legislation now in question 
is that it deals with pubhc corporations and the use of public 
franchises, and for that reason the Legislature may be consid- 
ered as having wider jurisdiction under the police power than 
it would have in a matter involving private contracts. 

Since 1893 there has existed upon the statute books of this 
Commonwealth a law providing that not more than ten hours of 
labor a day should be exacted of employees of street railway 
companies. I am not aware that in this Commonwealth the 
question as to the constitutionality of that provision has been 
presented to the Supreme Court. In an opinion to the Gov- 
ernor of Rhode Island on June 24, 1902, the Supreme Court of 
Rhode Island, however, advised that a similar statute was con- 
stitutional. 24 R. 1. 603. A short time after that opinion was 
rendered, the Rhode Island statute was so amended as to give 
the employees of a street railway company opportunity to work 
more than ten hours a day, if they so desired, and that law, 
which in its amended form closely corresponds to the bill now 
before Your Excellency, has remained upon the statute books 
of Rhode Island without challenge since its enactment. 

In the case of Chicago, Burlington & Quincy R.R. Co. v. 
McGuire, 219 U. S. 549, 569, the court, after citing many cases 
involving the exercise of the police power, said : — 

The principle involved in these decisions is that where the legislative 
action is arbitrary- and has no reasonable relation to a piu-pose which it is 
competent for government to effect, the Legislature transcends the limits 
of its power in interfering with liberty of contract; but where there is 
reasonable relation to an object within the governmental authority, the 
exercise of the legislative discretion is- not subject to judicial review. 

In the case of McLean v. Arkansas, 211 U. S. 547, 548, the 
court said: — 

If there existed a condition of affairs concerning which the Legislature 
of the State, exercising its conceded right to enact laws for the protection 



I 



JAMES M. SWIFT, ATTORNEY-GENERAL. 73 

of the health, safety or welfare of the people, might pass the law, it must 
be sustained; if such action was arbitrary interference with the right to 
contract or carry on business, and having no just relation to the pro- 
tection of the public within the scope of legislative power, the act must 
fail. 

Discussing merely the constitutional question which has been 
presented to me, I cannot say either that the legislation under 
discussion has no reasonable relation to the object which I am 
bound to presume the legislation had in view, the protection of 
the health, safety and welfare of the public, or that the Legisla- 
ture cannot have found upon evidence presented to it, which, 
however, is not before me, that a condition of aft'airs existed 
which required it to enact the legislation in question for the 
protection of the health, safety and welfare of the people. 

In view, also, of the provision that the employees may, if 
they so desire, work more than nine hours in a day, for extra 
compensation, the bill does not upon its face appear to be so 
unreasonable and extravagant as to be adjudged an arbitrary 
interference with the right of contract. The contention that 
the Legislature had in view the public health and safety is not 
necessarily negatived by the permissive feature in the latter 
part of the bill with reference to the employees. The Legisla- 
ture may have presumed that the employees would not desire 
to work longer than the hours prescribed unless they were 
physically able and competent to do so. While it appears by 
this provision that the Legislature has not gone as far as it 
might have attempted to in protecting the public health and 
safety, it does not for that reason make less valid the protection 
afforded by the enactment. 

It is a rule of constitutional construction that in case of a 
reasonable doubt the court is bound to resolve the doubt in 
favor of the statute. 

In view of all these considerations I am led to the conclusion 
that there is a strong probability that the court of last resort 
would not declare this act unconstitutional. 



74 OPINIONS OF THE ATTORNEY-GENERAL. 



State Board of Insanity — Appointment of Agent to fill 
New Position — Appropriation. 

Under the provision of St. 1909, c. 504, § 4, that the State Board of Health "may 
appoint agents and subordinate officers and fix their compensation, but the 
amount paid for their salaries shall not exceed the appropriation of the 
general court for that purpose," a position may be created by such Board 
and an agent appointed to fill it at any time if the salary for such agent as 
fixed by such Board may be paid from the existing appropriation. 

State Board ^011 have inquired whether you "may appoint, under section 

° 1913^'^' ^' 4, chapter 504, Acts of 1909, an agent to a new position about 

' to be created by the Board, for whom no provision was made 

at the time the appropriation for salaries was granted, but 
whose salary will be paid from the appropriation for this de- 
partment provided it is sufficient." 

The section to which your inquiry refers is as follows: — 

The board may appoint agents and subordinate officers and fix their 
compensation, but the amount paid for their salaries shall not exceed 
. the appropriation of the general court for that purpose. The board may 
delegate any of its powers and duties to, and may execute any of its 
functions by, agents appointed for that purpose or by committees of the 
board. The board shall hold meetings each month, and oftener if neces- 
sary. It shall make its own by-laws, and shall annually report its doings 
to the governor and council on or before the third Wednesday in March, 
the report being made up to and including the thirtieth daj^ of November. 

Under this provision the Board is authorized to appoint such 
agents as may be necessary for the transaction of its business 
and to fix their salaries, provided that the amount of the 
salaries so fixed does not exceed the amount appropriated by 
the Legislature for the payment of such salaries. This being 
so, I see no reason why a position may not be created and an 
agent appointed to fill it at any time if the salary of such agent 
as fixed by the Board may be paid from the existing appropria- 
tion as required by the section above quoted; and it is, in my 
opinion, immaterial that the position in question had not been 
created at the time such appropriation was made. 



JAMES M. SWIFT, ATTORNEY-GENERAL. /O 



Collateral Loan Company — Increase of Capital Stock 
— Commissioner of Corporations — Approval. 

The Collateral Loan Company, which is a loan agency engaged in the business 
of making small loans, is a "corporation heretofore organized by special 
act of the legislature for a purpose or purposes for which corporations may 
be organized under the provisions of chapter four hundred and thirty-seven 
of the acts of the year nineteen hundred and three and acts in amendment 
thereof or in addition thereto," and is therefore within the provision of 
St. 1912, c. 586, § 1, that such corporations shall be subject to the provisions 
of St. 1903, c. 437, in respect to the amount of real or personal property 
which they may hold and may from time to time increase or decrease their 
capital stock in accordance with the provisions of such chapter. 

The Commissioner of Corporations may, therefore, approve an increase of the 
capital stock of the Collateral Loan Company duly made in accordance with 
the requirements of St. 1903, c. 437, §§ 40, 41 and 42. 

You have reauested mv opinion upon the question whether To the Com- 
missioner of 
you may approve as conforming to the requirements of hiw Corporations 

certain articles of amendment to its agreement of association - ^"'^ ^^ - 

which provide for an increase of capital stock, submitted to 

you for approval under the provisions of St. 1903, c. 437, by 

the Collateral Loan Company, purporting to act under authority 

of St. 1912, c. 586. 

St. 1912, c. 586, § 1, provides as follows: — 

Eveiy corporation heretofore organized by special act of the legislature 
for a purpose or purposes for which corporations may be organized under 
the provisions of chapter four hundred and thirty-seven of the acts of the 
year nineteen hundred and three and acts in amendment thereof or in 
addition thereto, except corporations which are empowered to manu- 
facture, store, transmit, sell or distribute power, which now is or may 
hereafter become subject to said chapter four hundred and thirty-seven, 
shall hereafter, despite any provisions contained in its charter, be subject 
to said chapter in respect to the amount of real or personal property which 
it may hold, and may from time to time increase or decrease its capital 
stock in accordance with the provisions of said chapter four hundred and 
thirty-seven. 

St. 1903, c. 437, § 40, provides as follows: — 

Every corporation may, at a meeting duly called for the purpose, by 
the vote of a majority of all its stock, or, if two or more classes of stock 
have been issued, of a majority of each class outstanding and entitled to 



OPINIONS OF THE ATTORNEY-GENERAL. 

vote, authorize an increase or a reduction of its capital stock and determine 
the terms and manner of the disposition of such increased stock, may 
authorize a change, etc. 

Section 41 of the same chapter provides: — 

Articles of amendment signed and sworn to by the president, treasurer 
and a majority of the directors shall, within thirty days after said meeting, 
be prepared, setting forth such amendment or alteration, and stating that 
it has been duly adopted by the stockholders. Such articles shall be 
submitted to the commissioner of corporations, , who shall examine them 
in the same manner as the original articles of organization. If he finds 
that they conform to the requirements of law, he shall so certify and in- 
dorse his approval thereon, and they shall thereupon be filed, etc. 

Since nothing appears in your letter to the contrary, I 
assume that the increase in the amount of the capital stock has 
been made in accordance with the requirements of section 40 
above quoted and also in accordance with the provisions of 
section 42 of the same chapter. 

The question presented, therefore, is whether the Collateral 
Loan Company is included within the provisions of St. 1912, c. 
586, as a corporation heretofore organized by special act of the 
Legislatiu-e for a purpose or purposes for which corporations 
may be organized under the provisions of chapter 437 of the 
Acts of the year 1903, and acts in amendment thereof or in 
addition thereto. 

The question is somewhat compHcated by the peculiar terms 
of the original act incorporating this corporation, but in my 
opinion is to be answered in the affirmative. 

The doubt concerning the matter arises chiefly from the fact 
that St. 1903, c. 437, § 1, in providing what corporations should, 
and what should not, be subject to the business corporation law 
provides, "it shall not apply to corporations organized under 
general or special laws of this commonwealth for the purpose of 
carrying on within the commonwealth the business of a bank, 
savings bank, trust company, surety or indemnity company, 
safe deposit company, etc.," and from the fact that this cor- 
poration in its original charter and early amendments thereof is 
designated as a "bank." 



JAMES M. SWIFT, ATTORNEY-GENERAL. 

The corporation was chartered by St. 1859, c. 173, under the 
name of "Pawners' Bank," in the following terms: — 

with the powers and privileges, and to be governed by the rules and 
pro\dsions established bj^ law relative to banks in this Commonwealth, 
so far as applicable to the objects of this institution. It shall not be a 
bank of issue, and shall loan on pledge of goods and chattels only. 

In substantially every section of the act the corporation is 
spoken of as a bank, although it clearly appears that the object 
of its incorporation was not the business of a bank in the usual 
sense of the term but merely the transaction of the business of 
loaning money on pledge of goods and chattels. 

By St. 1869, c. 428, the name was changed to Collateral Loan 
Company, its present name. The nature of the business to be 
transacted was not changed by the provisions of this act, and 
in various sections thereof the corporation was still referred to 
as a bank. 

By St. 1888, c. 170, the corporation was made subject to ex- 
amination by the Bank Commissioner of the Commonwealth. 

But the essential point to be considered in the determination 
of the question presented is not by what name the corporation 
is designated but rather for the purpose of carrying on what 
business the corporation was organized. 

Although the corporation was designated as a bank in the 
charter of the corporation and early amendments thereof, and 
although it might be considered as a sort of bank with narrowly 
limited powers, in my opinion it is not to be considered as hav- 
jing been organized "for the purpose of carrj-ing on within the 
commonwealth the business of a bank," within the meaning of 
the term as used in the business corporation law of 1903. 

At the time of the enactment of the business corporation law 
if 1903 the small loan business was fully recognized, and for 
nany years prior thereto had been recognized as a business 
lifl'ering from an ordinary banking business. In the adminis- 
ration of the business corporation law from the date of its en- 
ictment to the present time, it has not been considered that 
corporations carrying on a business similar to that carried on by 



78 OPINIONS OF THE ATTORNEY-GENERAL. 

the Collateral Loan Company are excluded from the provisions 
of the act on the ground that they are organized for the purpose 
of carrying on the business of a bank. Loan companies have 
been organized in recent years under the provisions of this act 
of 1903 and have otherwise conformed to the provisions of the 
act. The Collateral Loan Company itself was included in the 
original list of corporations existent at the time of the enact- 
ment of the business corporation law of 1903, to which that law 
was to be considered applicable. It has been subjected to the 
provisions of that law both with reference to taxation and other 
matters ever since the enactment of the law, with the acquies- 
cense of all parties in interest. 

Finally, if further evidence be necessary that for the purpose 
of classification the corporation is to be considered as organized 
for the purposes of a loan agency and not for the purpose of 
carrying on a banking business, that evidence is supplied by 
St. 1911, c. 727, entitled "An Act to regulate the business of 
making small loans," which vSubjects all small loan agencies in 
this Commonwealth to the supervision of a State officer known 
as the Supervisor of Loan Agencies, transfers the powers and 
duties formerly exercised by the Bank Commissioner to this 
supervisor, and provides in section 23 as follows: — 

All parts of the charters of the Collateral Loan Company, Working- 
men's Loan Association, Worcester Collateral Loan Association and 
Chattel Loan Company inconsistent herewith are hereby repealed. 

Under the terms of this act any parts of the charter of the 
Collateral Loan Company which might be considered as being 
inconsistent with its now being considered and dealt with as a 
loan agency rather than as a bank are repealed, and the intent 
of the Legislature that the company shall be placed upon the 
same basis as other loan agencies is clearly indicated. 

As previously stated, loan agencies may be incorporated under 
the provisions of St. 1903, c. 437, and the Collateral Loan Com- 
pany is, therefore, to be considered as included among the cor- 
porations "heretofore organized by special act of the legislature 
for a purpose or purposes for which corporations may be organ- 



JAMES M. SWIFT, ATTORNEY-GENERAL. 79 

ized under the provisions of chapter four hundred and thirty- 
seven of the acts of the year nineteen hundred and three," and 
authorized under the provisions of St. 1912, c. 586, to increase 
its capital stock in accordance with the provisions of the Acts 
of 1903. 



IxsAXE Person — Hospital — Trustees — Authority of 
Trustees to Limit Number of Patients — State 
Board of Insanity. 

The trustees of a State hospital for the insane have no authority by vote or resolu- 
tion to limit the number of patients to be treated at such hospital, and if the 
State Board of Insanity, in the exercise of the power vested in it by St. 1909, 
c. 504, § 10, to make such recommendations to the trustees of an institution 
for the insane as it may deem expedient, should recommend that accom- 
modations be provided for additional patients, it would be the duty of such 
trustees to provide them. 

You have sent me a copy of a resohition passed by vote of T^stles of the 
the trustees and have requested my opinion upon the questions HMpftaL '^^'^ 
whether the trustees have the power through passing such a juiy w. 
resolution to limit the number of patients to be treated at the 
hospital, and whether the State Board of Insanity may require 
an increase of accommodations for patients beyond the limit 
fixed by the trustees. 

The vote of the trustees was as follows: — 

Voted, That the capacity of this hospital should be limited to twelve 
hundred patients and that the policy of this Board be to ask only for 
appropriations and buildings sufficient to care for this number of patients. 

In my opinion the present laws with reference to the hospital 
are such that the number of patients to be treated at the hospi- 
tal may be absolutely limited only by action of the Legislature, 
and the vote of the trustees has the force only of the expression 
of their opinion as to the policy the pursuance of which would 
enable the hospital to do its best work. 

The vote could not be given full effect as a practical matter 
on account of the provisions of law regulating admission of pa- 



80 OPINIONS OF THE ATTORNEY-GENERAL. 

tients to the hospital. So far as patients are admitted upon 
application to the trustees, the number of inmates of the hos- 
pital is to some extent within the control of the trustees, but, 
under the provisions of St. 1909, c. 504, § 58, as amended by 
St. 1911, c. 71, an insane epileptic may be committed to this 
hospital under the laws applicable to the commitment of other 
insane persons, without any action being taken by the trustees, 
and, through the provisions of St. 1909, c. 504, § 12, patients 
may likewise be committed upon application of the State Board 
of Insanity. Xo provision appears to have been made to give 
the trustees power to control the extent to which the number of 
inmates of the hospital may be increased by such commitments. 

That it is not the intent of the statutes that the trustees of 
the hospital shall be vested with authority absolutely to fix the 
limits of the size of the institution seems also to be indicated by 
the provisions of St. 1907, c. 520, which, by St. 1909, c. 504, 
§ 8, are made applicable to this hospital. Under the provisions 
of the 1907 act plans for new construction or for alteration or 
repairs of existing buildings for which it is intended to petition 
the General Court for appropriations must first be submitted to 
the State Board of Insanity, and that Board "m.ay require such 
modifications thereof and additions thereto and such additional 
information as it may deem necessary." 

These various provisions are consistent with the terms of the 
original act providing for the establishment of the hospital. St. 
1895, c. 483. Section 6 of that act is as follows: — 

Said trustees shall have the same powers and shall be required to per- 
form the same duties in the management and control of said hospital as 
are vested in and required of the trustees of the various state lunatic 
hospitals under sections six, seven and nine of chapter eighty-seven of the 
Pulilic Statutes. 

Section 6 of chapter 87 of the Public Statutes, referring to 
the trustees of each hospital, provides as follows: — 

They shall take charge of the general interests of the institution, and 
see that its affairs are conducted according to the requirements of the 
legislature and the by-laws and regulations which the board shall estab- 



JAMES M. SWIFT, ATTORNEY-GENERAL. 81 

lish for the internal government and economy thereof; and they shall 
be reimbursed all expenses incurred in the discharge of their official duties. 

Section 7 of the same chapter provides : — 

They shall establish by-laws and regulations, with suitable penalties, 
'or the internal government and economy of the institutions, etc. 

The effect of these various enactments is. that, although the 
nternal government of the institution is in the hands of the 
:rustees, it is not within the power of the trustees absolutely 
md finally to determine the place of the hospital in the institu- 
:ional system of the Commonwealth and to limit absolutely the 
extent of the portion of the field of the care of the insane of 
;he Commonwealth which shall be filled by this particular 
nstitution. 

So long as "the requirements of the legislature" are that the 

mmber of patients shall not be absolutely within the control of 

he trustees, but that the trustees shall receive patients com- 

nitted to the hospital by order of court independent of action 

[ )y the trustees, they are bound to conduct the hospital accord- 

' ng to those requirements so far as it is reasonably possible. If 

n the opinion of the trustees the effectiveness of the institution 

s impaired by reason of the increase of patients beyond certain 

imits, the remedy, if it is to be effective, must be by appeal to 

;he Legislature rather than through an attempt to enforce a 

I /ote of the trustees which has not the force of law. 

The question as to the authority of the State Board of In- 
;anity to require an increase of accommodations beyond the 
imits fixed by the trustees is substantially answered by what 
las been said with reference to the legal effect of the vote of the 
Tustees. The providing of accommodations for patients whom 
he trustees are bound by law to receive is part of the duties of 
he trustees and is, therefore, required by the statutes rather 
han by the State Board of Insanity. The State Board of In- 
anity, however, under the provisions of St. 1909, c. 504, is at 
he head of the entire system of caring for the insane, the feeble- 
ninded, the epileptics and the dipsomaniacs in the Common- 



82 



OPINIONS OF THE ATTORNEY-GENERAL. 



wealth, with powers of supervision over all public and private 
institutions and receptacles for such patients. Under section 
10 of the statute, providing for visitation and inspection of the 
hospitals by the Board and authorizing the Board to "make 
such recommendations to the trustees or superintendent of the 
institution as it may deem expedient," the Board would not, 
in my opinion, exceed its powers if, under conditions which 
seem to it to demand additional accommodations, it should 
recommend that such accommodations be provided. 



To the 
Tax Com- 
missioner. 
1913 

August 27. 



Taxation — Domestic Business Corporation — Distri- 
bution OF Tax — Canal Company — Corporation 

HAVING THE RiGHT TO TAKE OR CONDEMN LaND — TilE 

Essex Company. 

The words "domestic business corporation," as used in St. 1910, c. 456, § 1, pro- 
viding that the tax assessed upon domestic business corporations under the 
pro\asions of St. 1909, e. 490, Part III., shall be distributed, credited and 
paid to cities and towns or shall be retained by the Commonwealth in the 
manner therein provided, are to be construed as having the meaning of the 
same words as used in St. 1909, c. 490, Part III., defined in section 39 to 
include "every corporation of the classes enumerated in section one of chap- 
ter four hundred and thirty-seven of the acts of the year nineteen hundred 
and three." 

By St. 1903, c. 437, § 1, after enumerating the classes of corporations to which 
such chapter shall apply, it is provided that "it shall not apply to corpora- 
tions organized under general or special laws of this commonwealth for the 
purpose of carrying on within the commonwealth the business of a . . . 
canal, aqueduct or water company ... or to any other corporations which 
now have or may hereafter have the right to take or condemn land or to 
exercise franchises in public ways ..." It follows that since the Essex 
Company, which was chartered by special act (St. 1845, c. 163) and owns 
canals and locks in the city of Lawrence and is vested with the right to take 
or condemn lands and to exercise franchises in public ways, is excluded from 
the provisions of St. 1903, c. 437, the business corporation law, it is, there- 
fore, not a domestic business corporation within the meaning of St. 1910, 
c. 456, § 1. 

You have requested my opinion upon the question whether 
the Essex Company, a corporation chartered by special act 
(St. 1845, c. 163), owning the canals and locks in the city of 
Lawrence, is a domestic business corporation within the meaning 
of section 1 of chapter 456 of the Acts of the year 1910. 



JAMES M. SWIFT, ATTORNEY-GENERAL. 83 

St. 1910, c. 456, § 1, provides as follows: — 

The tax assessed upon domestic business corporations under the pro- 
isions of Part III. of chapter four hundred and ninety of the acts of the 
ear nineteen hundred and nine shall be distributed, credited and paid 
cities and towns of the commonwealth or shall be retained by the 
ommonwealth in the manner following: Such part of said tax paid by 
ach of said domestic business corporations as is paid on account of shares 
f stock of said corporations owned by non-residents of Massachusetts 
hall be retained by the commonwealth. The remainder of said tax paid 
>y each of said corporations shall be distributed, credited and paid to the 
ity or town of the commonwealth where the business of the corporation 
5 carried on, and if any such corporation maintains an office, store or 
ictory in more than one citj^ or town of the commonwealth this part of 
he tax paid by it shall be distributed, credited and paid to such cities and 
Dwns in proportion to the value of the tangible property of the corpora- 
ion in each of such cities or towns on the first day of April, as determined 
•om the returns or in any other manner: provided, that if any such cor- 
oration does not conduct its business in Massachusetts and does not 
wn any tangible property in anj' citj' or town of the commonwealth, 
ther than furniture and equipment reasonably necessary for the use of 
le clerk or other executive officers of such corporation, all of the tax 
aid by such corporation shall be retained by the commonwealth. 

In my opinion the phrase "domestic business corporation," 
3 used in this act, must be construed as having the same mean- 
ig as the same phrase used in Part III. of chapter 490 of the 
.cts of the year 1909. St. 1909, c. 490, Part III., § 39, pro- 
ides as follows: — 

The term "domestic business corporation" as used in this act shall 
ean every corporation of the classes enumerated in section one of chapter 
■ur hundred and thirty-seven of the acts of the year nineteen hundred 
id three; . . . 

Section 1 of chapter 437 of the Acts of 1903 enumerates the 
asses of corporations to which that business corporation law 
lall not apply, as well as the classes to which it shall apply; 
Jt section 39, above quoted, in referring to "the classes enu- 
erated in section one of chapter four hundred and thirty- 
ven" can be reasonably construed onlv as referring to the 



S4 OPINIONS OF THE ATTORNEY-GENERAL. 

classes enumerated in section 1 as subject to the provisions of 
the business corporation law. 

Section 1, after enumerating the classes of corporations to 
which the law shall apply, provides as follows: — 

It shall not apply to corporations organized under general or special 
laws of this commonwealth for the purpose of carrying on within the 
commonwealth the business of a bank, savings banlv, co-operative bank, 
trust companj'^, surety or indemnity company, safe deposit company, 
insurance company, railroad or street 'railway companj', telegraph or tele- 
phone company, gas or electric light, heat or power compam-, canal, 
aqueduct or water company, cemetery or crematory company, or to any 
other corporations which now have or may hereafter have the right to take 
or condeinn land or to exercise franchises in public ways granted by the 
commonwealth or by any county, city or town. 

In my opinion, by these latter provisions the Essex Company 
is expressly excluded from the application of the business cor- 
poration law. The original charter of the corporation (St. 1845, 
c. 163) makes the individuals therein named a corporation "for 
the purpose of constructing a dam across Merrimack river, and 
constructing one or more locks and canals in connection with, 
said dam, to remove obstructions in said river by falls and 
rapids, from Hunt's Falls to the mouth of Shawsheen river, and 
to create a water power to use, or sell, or lease to other persons 
or corporations, to use for manufacturing and mechanical pur- 
poses." By section 3 of the same act it is "authorized and em- 
powered to construct and maintain a dam across said river, either 
at Deer Jump Falls, or Bodwell's Falls, or some point in said 
river between said falls, and all such canals and locks as may be 
necessary for the purposes aforesaid; and for the purpose of 
making said dam, and constructing the main canal for naviga- 
tion, or transports, may take, occupy, and inclose any of the 
lands adjoining said canals and locks, or dam, which may be 
necessary for building or repairing the same, for towing paths, 
and other necessary purposes, not exceeding twenty feet on each 
side of said canal, or locks, and may blow up and remove any 
rocks in said river, and dig in any of the lands near to said 
river, through which it may be necessary to pass said main 
canal." By section 4 it is provided: — 



JAMES M. SWIFT, ATTORNEY-GENERAL. 85 

If there shall be occasion, in the prosecution of the powers and purposes 
aforesaid, to make a canal across any public highway, or if highways 
shall hereafter be laid out across such canal, it shall be the duty of said 
corporation to make sufficient bridges across said canal, and to keep them 
in good repair. 

By section G the company is authorized to erect and forever 
maintain such canal and locks as shall be necessary around any 
dam constructed by it. By section 9, for the purpose of reim- 
bursing the corporation in part for the cost and expense of 
keeping the locks and canals in repair, it is authorized to levy 
tolls. 

The original charter has been amended by various acts, but 
the nature of the corporation has not been changed and its 
powers have not been altered in such a manner as to affect the 
question now presented. 

AYhile the corporation is authorized by its charter to use the 
water power which it creates for the purpose of manufacturing, 
and although it was made subject to the provisions of the thirty- 
eighth and forty-fourth chapters of the Revised Statutes, and 
has been in many respects given the powers and privileges and 
has been subjected to the liabilities of manufacturing corpora- 
tions, nevertheless, it must, in view of the object of its incor- 
poration and the powers vested in it by its charter, be con- 
sidered as a canal company within the meaning of section 1 of 
the business corporation law. This view has recently been taken 
by the Supreme Court of the Commonwealth, in the case of a 
petition for tax abatement brought by the Essex Company 
against the city of Lawrence, 214 Mass. 79, 87. In that case 
it was said by the chief justice: — 

It has been faintly argued that E. L., c. 14, § 42, was repealed by St. 
1903, c. 437, § 95. But this is not so, for the reason among others that 
c. 437, according to § 1, does not apply to a canal corporation, which the 
petitioner is in some aspects of its charter duties. 

In my opinion the corporation is to be considered as excluded 
from the provisions of the business corporation law also for the 
reason that it is a corporation having the right to take or con- 



86 



OPINIONS OF THE ATTORNEY-GENERAL. 



demn land or to exercise franchises in public ways granted by 
the Commonwealth, or by any county, city or town. The cor- 
poration was given authority by section 3 of its charter, above 
quoted, to take or condemn land, and since I have no informa- 
tion that at the time when the business corporation law went 
into effect the corporation had entirely exhausted its powers to 
take land, I must assume that at that time this corporation was 
still a corporation having the right to take land. 

In my opinion, therefore, the Essex Company is not a corpo- 
ration of the classes enumerated in section 1 of chapter 437 of 
the Acts of 1903 as subject to the provisions of that act, and is 
not a domestic business corporation within the meaning of that 
term as used in St. 1910, c. 456. 



To the 

Commissioner 
of Weights and 
Measures. 

1913 
September 3. 



Weights and Measuees — Weighing and Measuring De- 
vices FOR Hire or Reward — Testing and Sealing 
Gas or Electric Light Meters. 

Gas or electric light meters are not measuring devices within the meaning of St. 
1909, c. 412, § 1, that "the provisions of chapter sixty-two of the Revised 
Laws relating to the adjustment, testing and sealing of weights, measures 
and balances shall apply to all weighing and measuring devices used for the 
purposes of weighing and measuring for hire or reward." 

Under date of August 25 you requested my opinion as 
follows : — 

I would respectfully refer you to eection 1, chapter 412, Acts of 1909, 
wliich reads as follows : — 

"The provisions of chapter sixty-two of the Revised Laws relating to 
the adjustment, testing and sealing of weights, measures and balances 
shall apply to all weighing and measuring devices used for the purposes 
of weighing and measuring for hire or reward." 

Will you kindly advise if in 3^our opinion a gas or electric light meter 
would be a measuring device in the meaning of Ibis section? 



In my opinion your inquiry should be answered in the 
negative. 



JAMES M. SWIFT, ATTORNEY-GENERAL. 87 



Railroad Corporation — Board of Railroad Commis- 
sioners — Certificate that Requirements of Law 
Preliminary to Incorporation have been complied 
with — Revision by Court or Other Tribunal — 
Description of Route in Agreement of Association — 
Certificates of Agreement as to Route in Cities 
AND Towns — Hampden Railroad Corporation. 

Where the Board of Railroad Commissioners, under the provisions of St. 1906> 
c. 463, Part II., § 24, has duly certified that the requirements of such 
chapter preliminary to the incorporation of a railroad corporation under gen- 
eral laws have been complied with, the decision of said Board in the premises 
should not be considered as subject to revision by any other executive or 
administrative board or commission. 

The powers vested in a railroad corporation organized under general laws with 
respect to fixing the route of its railroad are to be determined not only from 
the description of such route contained in its certificate of organization, 
but also from the certificates fixing the route in the several cities and towns 
through which such railroad is to pass, as provided in St. 1906, c. 463, Part II., 
§§ 20-24, inclusive. The Hampden Railroad Corporation may, therefore, 
construct its railroad upon the route shown to be fixed by the certificates 
annexed to the agreement of association on file in the office of the Secretary 
of the Commonwealth in accordance with the provisions of section 24; and 
the description of the route contained in such agreement of association, so 
far as it is not required by law and is inconsistent with the route fixed under 
authority of sections 20 and 21, may be disregarded. 

You have requested my opinion upon the question whether, Tothe 
n view of the facts contained in a statement submitted by you, commisaiLT* 
:he Hampden Railroad Corporation has kept within the powers September is. 
conferred upon it by its charter and the laws of the Common- 
vvealth so that the Public Service Commission, acting under St. 
1913, c. 784, § 16, may lawfully approve an issue of bonds by 
:hat corporation to the amount of $2,500,000, to provide means 
or funding its floating debt incurred in the construction and 
•quipment of its railroad; the proposed bonds to be secured by 
I mortgage of the railroad, its equipment, franchises and all 
)ther property now owned by it or hereafter acquired. 

The facts submitted by you as bearing upon the question are 
IS follows: — 

Acting under St. 1906, c. 463, Part II., §§ 1.3-28, the asso- 
ciates forming the Hampden Railroad made an agreement of 



88 OPINIONS OF THE ATTORNEY-GENERAL. 

association, dated June 1, 1910. Copies of this agreement were 
published as required by section 16 of the statute. 

On Aug. 4, 1910, the directors named in the agreement of 
association petitioned the Railroad Commissioners, under sec- 
tion 18, for a certificate that public convenience and necessity 
required the construction of a railroad as proposed in said agree- 
ment and in the petition and as shown upon certain maps, plans 
and profiles. These maps, plans and profiles were filed with the 
petition, together with an estimate of cost and a description of 
the proposed route of the railroad. Upon this petition an order 
of notice by publication and service of copy was issued by the 
Board of Railroad Commissioners on Aug. 4, 1910. After hear- 
ing on the petition and a contest, the Railroad Commissioners, 
on Sept. 20, 1910, issued a certificate of public convenience and 
necessity, under section 18. In this certificate the Board called 
attention to the fact that two features of the proposed railroad 
remained open for discussion; the location in the city of 
Chicopee, and the location in the city of Springfield. It was 
stated that since the route through the city of Chicopee, as 
proposed, was subject to local objection, the Board would take 
note of the suggestion of the municipal authorities of that city 
if it became the duty of the Board of Railroad Commissioners 
to fix the route therein. It stated that if it became the duty 
of the Board to fix the route in the city of Springfield, the 
Board in fixing the route in that city would take note of the 
river front improvements contemplated by the city. 

Subsequently, the incorporators, acting under sections 19 and 
20 of the statute, agreed with the towns of Ludlow, Belcher- 
town and Palmer upon the routes of the railroad in those towns, 
and in October, 1911, the selectmen of these towns certified the 
routes agreed upon. The routes so fixed in these three towns 
were substantially the same as those shown with map accom- 
panying the petition for a certificate of exigency. 

On Sept. 30, 1910, the directors of the Hampden Railroad 
submitted to the aldermen of the city of Springfield the map 
and engineer's report which had been submitted to the Railroad 
Commissioners at the time of the filing of the petition for a cer- 



JAMES M. SWIFT, ATTORNEY-GENERAL. 89 

tificate of exigency and, also, on September 30, petitioned the 
board of aldermen to agree with the directors upon the route 
and location of the tracks of the railroad in Springfield, under 
sections 19 and 20. The matter was laid upon the table on 
Oct. 10, 1910. 

At a meeting of the aldermen of Springfield on April 3, 1911, 
the petition was taken from the files, and it was voted to give a 
hearing to all persons interested, on April 17. At this hearing 
Ralph D. Gillett appeared on behalf of the petitioner and 
stated that the plan of the corporation had been changed some- 
what and that under the proposed plan the location asked for 
would not go through or across any land owned by the city of 
Springfield. A revised plan of the location was presented. No 
one appeared in opposition. The hearing was closed, and, on 
motion of Alderman Wight, it was voted that the location as 
prayed for be granted. 

The city clerk of Springfield issued a certificate under date of 
April 17, 1911, as follows: — 

I hereby certify that at a meeting of the board of aldermen of the city 
of Springfield, Commonwealth of Massachusetts, held April 17, 1911, 
after a hearing duly posted and advertised as required by law, it was 
voted in the matter of the petition of the Hampden Railroad for a loca- 
tion in the city of Springfield that said location be granted as praj'ed for. 
Attest : 

(Signed) E. A. Newell, 

City Clerk. 

The new plan referred to in this vote showed the location 
in Springfield upon which the railroad has been actually con- 
structed, but a location different from that shown upon the 
map filed with the Railroad Commissioners with the petition 
for a certificate of exigency. 

Between the date when the original petition was filed with the 
aldermen of Springfield and the date when the new plan was 
finally acted upon, the New York Central Railroad, as lessee of 
the Boston & Albany Railroad, had made an agreement, in 
February, 1911, with the New York, New Haven & Hartford 



90 OPINIONS OF THE ATTORNEY-GENERAL; 

Railroad that such through routes over the Hues of the New 
Haven system and Boston & Albany Railroad should be estab- 
lished as the public interest might require. After this agree- 
ment, but before July, 1911, Mr. Mellen suggested the possi- 
bility of establishing a connection of the Hampden Railroad 
with the Boston & Albany at Athol Junction and of making 
arrangement for the use of the Boston & Albany tracks between 
Athol Junction and Springfield. The suggestion was favorably 
received but no actual and formal agreement concerning the 
subject was made until July 10, 1912, when an agreement was 
made between the New York Central and the Boston & ^Nlaine 
for the use of these tracks. 

In the city of Chicopee the associates were unable to agree 
with the aldermen upon a route in that city, whereupon, acting 
under section 21, on Feb. 10, 1911, they petitioned the Board of 
Railroad Commissioners to jBx the route. An order of notice 
was issued upon this petition, and, on June 2, 1911, the Board 
of Railroad Commissioners fixed the route of the Hampden 
R.ailroad in Chicopee. 

No route was ever fixed in the city of Holyoke. A petition 
was, however, filed by the Hampden Railroad with the alder- 
men of Holyoke, dated Sept. 30, 1910, asking the Board to 
agree upon a route in Holyoke. This petition was referred to a 
committee Oct. 4, 1910, and no further action was ever taken 
upon it. 

On May 8, 1911, the directors of the corporation petitioned 
the Board of Railroad Commissioners for a certificate of compli- 
ance, under section 24, which provides in substance that when 
it is shown to the satisfaction of the Railroad Commissioners 
that the requirements of the chapter preliminary to the incor- 
poration of a railroad corporation have been complied with and 
that payment for all damages is adequately guaranteed, the 
clerk of the Board shall, on its order, annex to the agreement of 
association a certificate stating that such requirements have 
been complied with. This certificate was issued by the clerk 
upon order of the Board on June 2, 1911. 

On the same date, the agreement of association, with its cer- 



JAMES M. SWIFT, ATTORNEY-GENERAL. 91 

tificates annexed, was filed in the office of the Secretary of the 
Commonwealth, and a certificate of incorporation was issued in 
accordance with the provisions of section 24 of the statute. 

The capital stock of the corporation as fixed in the agreement 
of association was S1,000,000. On July 20, 1911, it was voted 
to increase the capital stock to 81,400,000. 

On Aug. 17, 1911, the corporation filed with the Board a pe- 
tition for a certificate preliminary to location, under section 71 
of the statute, and, on the same day, the clerk of the Board, by 
order of the Board, gave a certificate under this section. 

On Dec. 5, 1912, the corporation petitioned the Board, under 
section 65 of the statute, to determine that capital stock to the 
amount of .$1,400,000 was reasonable and necessary for the con- 
struction and equipment of its railroad. On this petition an 
order of notice was issued by publication in the newspapers, and, 
on Dec. 13, 1912, the Board approved the issue of this stock to 
this amount at par, the proceeds "to be applied only toward the 
payment and capitalization, necessary cost of building and 
equipping its railroad, and the purchase of property necessary 
for its operation." 

On Oct. 8, 1912, the corporation petitioned the Board, under 
section 78 of the statute and under St. 1912, c. 725, Part II., 
§ 2, to prescribe the limits within which additional land for ad- 
ditional depot and station purposes, etc., might be taken by it 
within the city of Springfield, outside the limits of its route 
already fixed. Upon notice duly published, the Board, on Nov. 
16, 1912, prescribed the limits as prayed for. 

On June 3, 1913, the corporation filed its petition for a certifi- 
cate preliminary to operation, under section 127 of the statute, 
and, on June 18, 1913, the-Board certified that "all laws rela- 
tive to the construction of the Hampden Railroad have been 
complied with, and that the railroad appears to be in safe con- 
dition for operation." 

From the facts stated it appears that on June 2, 1911, the 
Board of Railroad Commissioners, the predecessor of the present 
Public Service Commission, certified, ui'ider St. 1906, c. 463, 
Part II., § 24, that the requirements of the chapter preliminary 



92 OPINIONS OF THE ATTORNEY-GENERAL. 

to the Incorporation of a railroad corporation under general 
laws had been complied with. Section 24 provides as follows: — 

When it is shown to the satisfaction of the board of railroad commis- 
sioners that the requirements of this chapter preliminary to the incor- 
poration of a railroad corporation have been complied with, . . . the 
clerk of said board, upon its order, shall annex to the agreement of asso- 
ciation a certificate stating that such requirements have been compHed 
with. The directors shall thereupon file the agreement of association, 
with aU the certificates annexed thereto, in the office of the secretary 
of the commonwealth; who, upon the pa3^ment to him of a fee of fifty 
dollars, shall receive and preserve the same in form convenient for refer- 
ence and open to public inspection, and shall thereupon issue a certificate 
of incorporation . . . 

In my opinion it is clear from the provisions quoted that the 
Legislature intended that the Board of Railroad Commissioners 
should act as final arbiters upon the question whether the in- 
corporators had complied with the requirements of the statute 
preliminary to incorporation, and that when that Board had 
certified that it had been shown to its satisfaction that the re- 
quirements of the law had been complied with, the Secretary of 
the Commonwealth, the incorporators, the investors and the 
public might rely upon the decision, and that all parties should 
be bound b}^ the record. 

It appears not to have been determined by the Supreme Ju- 
dicial Court of this Commonwealth that the decision of the 
Board upon this point is subject to revision by the court on a 
question of law. In the case of Kilty v. Railroad Commis' 
sioners, 184 Mass. 310, at pages 311, 312, the court said:^ 

It is unnecessary to' determine whether the decision of the Railroad 
Commissioners under the R. L., c. Ill, § 46, upon the question whether 
the preliminary requirements of the chapter have been complied with 
is final, or is subject to re^dsion by this court on questions of law. 

The provisions of section 46 of chapter 111 of the Revised 
Laws are now incorporated in St. 1906, c. 463, Part II., § 24. 
No adjudication upon the point appears to have been made in 
any later case arising under the statute. 

In the absence of an adjudication that the decision of the 



JAMES M. SWIFT, ATTORNEY-GENERAL. 93 

3oard upon this point is subject to revision by the Supreme Ju- 
licial Court in matters of law, it should not, in my opinion, be 
'onsidered as subject to revision by any other tribunal. There 
s no occasion, therefore, to enter into a detailed discussion of 
ill the provisions included within sections 13 to 28 and of the 
'arious things done for the purpose of complying therewith, and 
do not construe the request of the commission as a request for 
, revision of all these matters. It must, of course, be presumed 
n favor of the various decisions and certificates of the Board of 
lailroad Commissioners that, acting as a public Board, it has 
teen fully satisfied that the incorporators, in all acts requiring 
he approval of the Board, have acted in good faith; that the 
ights of the public and all parties interested in the proceedings 
lave been protected by the Board so far as the statutes permit 
uch protection, and that the interests of the public have been 
erved by the manner in which the requirements of the chapter 
ireliminary to incorporation have been complied with. 

An opinion upon the question "whether upon the facts stated 
he Hampden Railroad has kept within the powers conferred 
ipon it by its charter and the laws of the Commonwealth" in- 
olves, however, a determination of what powers have been 
onferred upon the corporation, and the consideration of that 
[uestion must of necessity involve some discussion of the re- 
[uirements of the statute preliminary to incorporation and of the 
nanner in which those requirements have been complied with. 

The question is made difficult chiefly through the form in 
vhich the original agreement of association was drawn. 

Section 13 of the statute requires that the agreement of asso- 
iation shall state these facts with reference to the proposed lo- 
ation of the railroad : — 

(c) The termini of the railroad. 

(d) The length of the railroad as nearlj^ as may be. 

(e) The name of each county, city and town in which the raihoad is 
be located. 

(/) The gauge of the railroad. 

The agreement of association in this case contained the fol- 
jwing statements : — 



94 OPINIONS OF THE ATTORNEY-GENERAL. 

The termini of the proposed road are the city of Springfield and the 
city of Holyoke on the west, and near the village of Bondsville in the 
town of Palmer on the east, all in said county of Hampden. . . . 

The length of the railroad as nearly as may be determined is twenty- 
five miles. 

The said railroad is located, as above indicated, in the cities of Spring- 
field, Chicopee and Holyoke and in the towais of Ludlow and Palmer, 
all in the said county of Hampden, and in the town of Belchertown, in the 
county of Hampshire. 

These facts with reference to the location of the proposed rail- 
road were all that the statute required, but the agreement, after 
the statement quoted above with reference to termini, continues 
somewhat inartificiall y as follows : — 

The road is more particularly described, as to termini, as follows: — 
Commencing at a point in the city of Springfield, at or near the Con- 
necticut Eiver, north of Bridge Street, and extending thence northerly 
through the city of Springfield to the city of Chicopee, in said county, 
thence easterly through that part of Chicopee known as Chicopee Falls, 
thence crossing the Chicopee River and extending to and through the 
town of Ludlow, in said county, to the town of Belchertown, in the county 
of Hampshire, and in the said last mentioned town to a connection with 
a branch of the Boston & Albany Railroad known as the Athol Branch, 
and the New London Northern Railroad, and crossing the said branch 
of the Boston & Albany Railroad, and the said New London Northern 
Railroad, thence to a connection mth the tracks of the Central Massa- 
chusetts division of the Boston & Maine Railroad at a point near the 
village of Bondsville, in said town of Palmer, together with an extension 
from a point in the indicated line in the city of Chicopee northwesterly 
through that portion of Chicopee known as Willimansett to the Con- 
necticut River, thence across said river to and into said Holyoke. 

It appears that although designated as a " more particular de- 
scription as to termini," this latter description is in fact not a 
description as to termini but of the route between the termini 
as contemplated by the associates at the date of the agreement 
of association. 

Since the statute provides that, by agreement with municipal 
authorities or by order of the Board of Railroad Commissioners, 
the route proposed by the incorporators may be altered and the 



JAMES M. SWIFT, ATTORNEY-GENERAL. 

ication fixed anywhere within the Hmits of the city or town for 
hich the respective municipal authorities are acting, it is evi- 
ent that the Legislature did not contemplate the insertion in 
he agreement of association of a detailed description of a route, 
nd such a description has no place in a carefully drawn agree- 
lent of association. 
Section 24 prescribes the form for the certificate of incorpo- 
ition, which includes a description of the railroad as in the 
greement of association. It provides that the certificate of in- 
orporation shall be signed by the Secretary of the Common- 
ealth and " shall have the force and effect of a special charter." 
'his latter provision did not appear in the statutes regulating 
le incorporation of railroads under general laws until the en- 
stment of St. 1906, c. 463, Part II. The form of the provision 
as undoubtedly copied from section 12 of the business corpora- 
on law (St. 1903, c. 437), and, if the same construction were to 
? given to the provision in this statute as is given to the pro- 
ision as it occurs in the business corporation law, there might 
? strong reason for holding that the Hampden Railroad Cor- 
:)ration had no authority to construct a railroad on a route 
her than that described in the agreement of association. 
But in my opinion that provision cannot be so construed if 
'oper effect is to be given to the other provisions of the rail- 
tad law. 

Section 19 of the railroad statute provides that the directors 

lall submit to the board of aldermen of every city and to the 

lectmen of every town named in the agreement of association 

map of the route as originally proposed. Section 20 provides 

at these boards of aldermen and selectmen may agree with the 

rectors of the railroad '"as to the said route or as to any route 

the railroad in said city or town," and that such an agreement 

all fix the route in the respective cities and towns. Section 

provides that if the municipal authorities fail to agree with 

e directors, the Board of Railroad Commissioners may fix the 

ute in the city or town. Section 23 requires the directors, 

»^rk and treasurer of the corporation to certify that it is in- 

inded "in good faith to locate, construct, maintain and operate 



95 



96 OPINIONS OF THE ATTORNEY-GENERAL. 

the railroad njjon the route fixed." Section 24 requires the di- 
rectors to file the certificates fixing the route, together with the 
agreement of association, in the office of the Secretary of the 
Commonwealth, and requires the Secretary of the Common- 
wealth to keep these certificates annexed to the agreement of 
association " in form convenient for reference and open to public 
inspection." 

It is clear from these provisions that the powers conferred 
upon a corporation are not to be ascertained solely by inspection 
of the certificate of incorporation. They are conferred partly 
through certificates fixing the route, given under authority of 
sections 20 and 21 of the statute. These certificates are to be 
read with the certificate of incorporation, for the purpose of 
ascertaining upon what route the corporation is authorized to 
construct its railroad. 

The jurisdiction of the aldermen of cities and of the select- 
men of towns is, of course, confined to their respective cities and 
towns, but within these limits they are, under the terms of this 
statute, the guardians of the interests of their municipality and 
may agree upon the route as they see fit in their own munici- 
pality, provided only that the route is consistent with the de- 
scription of the road required by law to be contained in the 
agreement of association, consisting of the statement of the 
termini, the approximate length of the road, and the counties, 
cities and towns through which it is to pass. 

In my opinion the superfluous and inartificial description of 
the proposed route of the railroad is not to be construed either 
as abridging the rights of the municipal authorities to fix a route 
different from that so described or as depriving the incorpora- 
tors of the rights acquired by stating in the agreement of asso- 
ciation all that the statutes specifically required. 

This view^ is confirmed by an examination of the provisions 
with reference to incorporation by special charter, which differ 
from those with reference to incorporation under general laws. 
Sections 11 and 12 provide, with reference to special charters, 
that the railroad shall be confined by the special charter within 
the limits indicated by the notice given upon its petition, and 






JAMES M. SWIFT, ATTORNEY-GENERAL. ^7 

lat the route of tlie railroad established by special charter shall 
e fixed "according to the provisions of sections twenty and 
venty-one except so far as they may have been fixed by special 
ahde." The language of these sections indicates that in this 
2t, when the Legislature has meant to lin)it the exercise of the 
jthority vested in the local boards, under sections 20 and 21, 
has so limited it by apt provision. 

In my opinion a fair construction of the statute requires me 
) conclude that the Legislature has left the matter of the route 
I elastic form and has given to the municipal boards powers 
hich amount to authority to amend the charter of the rail- 
lad in matters concerning the route, provided only they keep 
ithin the outside limits of the route stated in the agreement of 
;sociation, namely, the termini, and the counties, cities and 
wns in which the road is located. 

The provisions of section 76 also appear to confirm this view, 
hat section provides that a railroad corporation, having taken 
nd for its railroad, may vary the direction of said railroad in 
le city or town in which the land is situated, " but it shall not 
cate any part thereof outside the limits of the route fixed 
ider the provisions of sections twenty and twenty-one, withoid 
e covsent in writing of the board of aldermen or selectmen, if it 
as fixed under the provisions of section twenty, or of the board 
railroad commissioners, if it was fixed under the provisions 
section twenty-one." Under the earlier provisions of law 
)on which this section is based the route could be varied only 
ithin the limits fixed by the act of incorporation. Under the 
•esent section the route may be varied not only from that 
iginally proposed under authority of sections 20 and 21, but 
so from the route fixed under sections 20 and 21, by consent 
the board of aldermen or selectmen in writing. 
I am led to the conclusion, therefore, that the Hampden Rail- 
ad Corporation has the right, under its charter and the laws 
the Commonwealth, to build its road upon thft route shown 
be fixed by the certificates annexed to the agreement of 
sociation, on file in the office of the Secretary of the Common- 
mlth; and the description of the route contained in the 



i 



98 



OPINIONS OF THE ATTORNEY-GENERAL. 



agreement of association, so far as it is not required by law and 
is inconsistent with the route fixed under authority of sections 
20 and 21, is, in my opinion, to be disregarded. 

Among the acts stated as having been done by the corpora- 
tion since the time when the commission certified that all re- 
quirements of the statutes preliminary to incorporation had 
been complied with, I find none which the corporation was not 
authorized to do by its charter and the laws of the Common- 
wealth. 



To the 
State Board 
of Health. 

1913 
September 24. 



Eggs — Cold Storage — Sale at Retail upon Order — 
Delivery in Marked Container. 

The provision of St. 1913, c. 538, § 1, that "whenever eggs that have been in cold 
storage are sold at retail, or offered or exposed for sale, the basket, box or 
other container in which the eggs are placed shall be marked plainly and 
conspicuously with the words 'cold storage eggs,' " requires that the basket, 
box or other container in which such eggs are placed when delivered by a 
retail dealer to a consumer, upon orders taken at the home of the consumer, 
or by telephone, where such consumer does not have an opportunity to see 
such eggs in a marked container at the store, shall be marked with the 
words "cold storage eggs." 

You have requested my opinion upon the question whether 
the provisions of St. 1913, c. 538, require that the basket, box 
or other container in which eggs are placed when delivered by 
a retail dealer in eggs to a consumer, upon orders taken at the 
home of the consumer, or by telephone, or by any other method 
by which the consumer does not have an opportunity to see the 
eggs in a marked container in the store, shall be marked with 
the words "cold storage eggs." 

St. 1913, c. 538, § 1, provides as follows: — 

Whenever eggs that have been in cold storage are sold at retail, or 
offered or exposed for sale, the basket, box or other container in which 
the eggs are placed shall be marked plainly and conspicuously with the 
words "cold storage eggs", or there shall be attached to such container 
a placard or sign having on it the said words. If eggs that have been 
in cold storage are sold at retail or offered or exposed for sale without a 
container, or placed upon a counter or elsewhere, a sign or placard, 
having the words "cold storage eggs" plainly and conspicuously marked 
upon it, shall be displayed in, upon or immediately above the said eggs; 



JAMES M. SWIFT, ATTORNEY-GENERAL. 99 

le intent of this act being that cold storage eggs sold at retail or offered 
• exposed for sale shall be designated in such a manner that the pur- 
laser will know that they are cold storage eggs. The display of the 
ords "cold storage eggs", as required by this act, shall be done in such 
manner as is approved by the state board of health. 

For the purpose of preventing evasion of the requirements of 
le statute through divergent interpretations of its provisions, 
le Legislature expressly stated the intent of the law to be that 
>Id storage eggs sold or offered or exposed for sale at retail 
tould be designated in such manner as to give the purchaser 
)tice of the fact that they are cold storage eggs. If a purchaser 
ould not go to the store to make his purchase, obviously the 
pressed intent of the law would not be satisfied if the con- 
iner in which the eggs were delivered were not marked in such 
manner as to give him notice. The construction which re- 
lires the container in which the eggs are delivered to the con- 
mer so ordering the eggs to be marked with the words "cold 
Drage eggs," is, therefore, not only demanded by the words of 
e first sentence of the section, which require not only that the 
ntainer of eggs ivhich are offered or exposed for sale but also 
e container of eggs which are sold shall be marked plainly and 
nspicuously, but it is also the only construction which gives 
ect to the clause stating the intent of the law. 



I 



I 



100 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the 
State Board 
of Health. 

1913 
September 29. 



Boards of Health — Articles of Food — Sale — Rules 
AND Regulations — State Board of Health — Ap- 
proval — Regulation of Sale of Milk. 

The provision of St. 1912, c. 448, amending R. L., c. 56, § 70, that "boards of 
health . . . may make and enforce reasonable rules and regulations, subject 
to the approval of the state board of health, as to the conditions under which 
all articles of food may be kept for sale or exposed for sale, ..." must be 
construed in connection with the original provision of section 70, that 
"boards of health . . . may inspect the carcasses of all slaughtered animals 
and all meat, fish, vegetables, produce, fruit or provisions of any kind found 
in their cities or towns" and "if, on such inspection, it is found that such 
carcasses or articles are tainted, diseased, corrupted, decayed, unwhole- 
some or, from any cause, unfit for food, the board of health shall seize the 
same and cause it or them to be destroyed forthwith or disposed of otherwise 
than for food," and the application of the words "all articles of food" in the 
amendment must be limited to the articles of food enumerated in the original 
provision. It follows, therefore, that such provisions do not authorize the 
regulation of the sale of milk. 

You have requested my opinion as to whether milk is to be 
considered an article of food affected by the provisions of 
chapter 448 of the Acts of 1912, and whether, therefore, any 
rules and regulations made concerning the sale of milk must not 
be duly advertised and submitted to the State Board of Health 
for its approval before being enforced. 

Chapter 448 of the Acts of 1912 is an amendment of section 
70 of chapter 56 of the Revised Laws, and said section as so 
amended reads as follows : — 

Boards of health of cities and towns, by themselves, their officers or 
agents, may inspect the carcasses of all slaughtered animals and all meat, 
fish, vegetables, produce, fruit or provisions of any kind found in their 
cities or towns, and for such purpose may enter any building, enclosure 
or other place in which such carcasses or articles are stored, kept or 
exposed for sale. If, on such inspection, it is found that such carcasses 
or articles are tainted, diseased, corrupted, decaj^ed, unwholesome or, 
from any cause, unfit for food, the board of health shall seize the same 
and cause it or them to be destroyed forthwith or disposed of otherwise 
than for food. All money received by the board of health for property 
disposed of as aforesaid shall, after deducting the expenses of said seizure, 
be paid to the owner of such property. If the board of health seizes or 
condemns any such carcass or meat for the reason that it is affected with 
a contagious disease, it shall immediately give notice to the board of 



JAMES M. SWIFT, ATTORNEY-GENERAL. 101 

;attle commissioners of the name of the owner or person in whose pos- 
ession it was found, the nature of the disease and the disposition made 
if said meat or carcass. 

Boards of health of cities and towns maj' make and enforce reasonable 
ules and regulations, subject to the approval of the state board of health, 
s to the conditions under which all articles of food may be kept for sale 
r exposed for sale, in order to prevent contamination thereof and injury 
the public health. Before the board of health of any city or town 
abmits such rules and regulations to the state board of health for ap- 
roval it shall hold a public hearing thereon, of which notice shall be 
iven by publication for two successive weeks, the first publication to 
e at least fourteen days prior to the date of the hearing, in a newspaper 
ublished in such city or town, or, if none is so published, in a news- 
aper published in the county in which such city or town is located. Any 
arson affected bj^ such rules and regulations, in the form in which they 
re presented to the state board of health for approval, may appeal to 
le said board for a further hearing, and said board shall not grant its 
Dproval to rules and regulations concerning which such an appeal has 
sen taken until it has held a public hearing thereon, advertised in the 
lanner specified above in this section with reference to hearings before 
Dards of health in cities and towns. 

Q the original provisions of Revised Laws, chapter 56, the 
nactments concerning milk are contained in sections 51 to 69, 
iclusive. Section 70 comes under the heading "Meat and 
rovisions," and is intended to cover other articles than milk. 
In my opinion, although the words "all articles of food" are 
road enough in a general sense to include milk, as used in this 
articular enactment, the intention is to limit the application 
P these words to the articles of food properly coming within 
le scope of the original section. I do not think its applica- 
on is to be extended to apply to milk, and I therefore answer 
Dur inquiry in the negative. 



102 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the 

Commissioner 
of Labor. 

1913 
October 8. 



Schools — Attendance — Children under Sixteen Years 
OF Age — Employment Certificate — Transcript of 
Birth Certificate — Fees. ^ 

The provision of St. 1913, c. 779, § 18, amending St. 1909, c. 514, § 60, as amended 
by St. 1910, c. 257, § 4, that "no fee shall be exacted for an employment 
certificate or for any of the papers required by this act," in connection withi 
the employment of children under sixteen years of age, is not applicable to 
birth certificates or duly attested transcripts thereof made by registrars of 
vital statistics, city or town clerks, or other officers charged with the duty of 
recording births. 

On behalf of the State Board of Labor and Industries you 
have inquired whether or not the provisions of St. 1913, c. 779, 
§ 18, amending St. 1909, e. 514, § 60, as previously amended by 
St. 1910, c. 257, § 4, that "no fee shall be exacted for an em- 
ployment certificate or for any of the papers required by this 
act," is applicable to birth certificates or duly attested tran- 
scripts thereof made by registrars of vital statistics, city or 
town clerks, or other officers charged with the duty of recording 
births. 

St. 1913, c. 779, § 1, provides that — 

every child under sixteen years of age who has not received an employ- 
ment certificate as provided in this act . . . shall attend a public day 
school . . . 

Section 16, which amended St. 1909, c. 514, § 58, as amended 
by St, 1911, c. 269, by striking out said section and inserting 
among other things the following, provides : — 

The person issuing employment certificates shall in each case, before 
issuing a certificate, receive, examine, approve and file the following 
papers, duly executed: — 

(1) A pledge or promise signed by the employer or by an authorizec 
manager or superintendent, setting forth the character of the employ- 
ment, the number of hours per day during which the child is to be regu- 
larly employed. and the name and address of the employer, in whicl 
pledge or promise the employer agrees to employ the child in accordance 
with the provisions of this act, and to return the employment certificate 
as provided in section fifty-seven. 

(2) The school record of such child, properly filled out and signed as 
hereinafter provided. 



JAMES M. SWIFT, ATTORNEY-GENERAL. 103 

(3) A certificate signed by a school or family physician, or by a phy- 
5ician appointed by the school committee, stating that the child has 
been thoroughly examined by said physician and, in his opinion, is in 
sufficiently sound health and physically able to perform the work which 
hhe child intends to do. 

(4) Evidence of age showing that the child is fourteen years of age, 
[V^hich shall consist of one of the following proofs of age : 

(a) A birth certificate, or a duly attested transcript thereof, made by 
I registrar of vital statistics or other officer charged with the duty of 
'ecording births. 

(6) A baptismal certificate, or a duly attested transcript thereof, 
showing the age and date of baptism of the child. 

(c) In case none of the aforesaid proofs of age is obtainable, and only 
n such case, the person issuing emplojTnent certificates may accept in 
ieu thereof a passport or a duly attested immigration record, or tran- 
;cript thereof, showing the age of the child : provided, that it shall appear 
the satisfaction of said person that the same is good and sufficient 
ividence of the child's age. 

(d) In case none of the aforesaid proofs of age is obtainable, and only 
n such case, the person issuing employment certificates may accept in 
ieu thereof a record of age as given on the register of the school which 
he child first attended in the commonwealth: provided, that such record 
vas kept for at least two years during the time when such child attended 
chool. 

(e) In case none of the aforesaid proofs of age is obtainable, and only 
n such case, the person issuing employment certificates may receive the 
igned statement of the school physician, etc. 

Said section 18 provides, in part, as follows: — 

The emplojTBent certificate required by this act shall . . . certify 
hat ... all the papers required by section fifty-eight have been dul}' 
xamined, approved and filed and that the conditions and requirements 
or issuing an emplojinent certificate have been fulfilled. It shall state 
Ihe grade last completed by said child. Every such certificate shall be 
igned in the presence of the person issuing the same by the child in whose 
ame it is issued. It shall state the name of the employer for whom, 
nd the nature of the employment in which, the certificate authorizes the 
hild to be employed. It shall bear a number, show the date of its issue 
nd shall be signed by the person issuing it. No fee shall be exacted for 
n employment certificate or for any of the papers required by this act. 
duplicate emplo3-ment certificates shall not be issued until it shall appear 
) the satisfaction of the person authorized to issue certificates that the 
riginal certificate has been lost. ... 



104 OPINIONS OF THE ATTORNEY-GENERAL. 

If the provision that "no fee shall be exacted for an employ- 
ment certificate or for any of the papers required by this act" 
is to be construed broadly, it would probably apply to all of the 
papers required under the provision of section 16 above quoted, 
including the papers specified as sufficient evidence for showing 
that a child is fourteen years of age, if such papers can be said 
to be required; but, for the reasons hereafter stated, I am of 
opinion that it cannot be so broadly construed. 

This provision with respect to fees obviously applies to all 
records and papers required by said section 60, as amended by 
section 18 of chapter 779, and would doubtless apply to certifi- 
cates or other papers signed by officials connected with the 
schools of any city or town and required under any of the pro- 
visions of the act. It could not, however, apply either to the 
certificate of the family physician [see (3)], or to a baptisma 
certificate, or a duly attested transcript thereof [see (b) undei 
(4)1, or to a passport, or a duly attested immigration record, o: 
transcript thereof, or other official or religious record of i 
child's age [see (c) under (4)], relating to evidence of age, foi 
the reason that the Legislature has no authority to compel i 
physician in private practice to perform gratuitous services oi 
the keeper of private records to supply transcripts thereo 
without compensation. Neither has it the authority to forbic 
the Federal authorities to charge fees for copies of their record 
relating to immigration. The Legislature has authority t( 
require the issuance of certificates by public officials, such as th( 
birth certificates in question, or copies thereof, without com 
pensation. This can easily be declared in unmistakabli 
language, but it is not made plain in the present legislation. 
am led to the conclusion that the exemption from fee does no 
apply to fees for certificates for which there is other existinj 
authority. 

Moreover, it may be doubted whether a certificate by a famil; 
physician is required in the provision under discussion, in th 
sense in which the word is used in section 18. It is only one o 
several alternatives, any one of which would satisfy the require 
ments, and the same is true of the evidences of age require( 



J 



JAMES M. SWIFT, ATTORNEY-GENERAL. 105 

under paragraph (4). Each of the subheads, including that in 
which a birth certificate, or a duly attested transcript thereof, 
is to be found, is an alternative, and no one of them is spe- 
cifically required. 

While the question is not entirely free from doubt, I am led 
to the opinion that birth certificates, or transcripts thereof, are 
not required to be furnished without the fee now provided by 
law therefor, and that for this reason also your specific inquiry 
should be answered in the negative. 



Commonwealth — Employees — Retirement — Head of 
Department — Chairman of Board or Commission. 

The chairman of a board or commission, consisting of three or more members 
appointed by the Governor, with the consent of the Council, for terms of 
years and receiving salaries from the Commonwealth, is not the head of a 
department within the meaning of St. 1911, c. 532, § 3, par. (4), providing 
that "any member who reaches the age of sixty years and has been in the 
continuous service of the commonwealth for a period of fifteen years imme- 
diately preceding may retire or be retired by the board of retirement upon 
recommendation of the head of the department in which he is employed . . ." 

You have requested my opinion upon a question which has xothe 
arisen from the administration of the provisions of St. 1911, Retirement. 

1913 

c. 532, entitled "An Act to establish a retirement system for October 20. 
the employees of the commonwealth." 

That statute, as amended by St. 1912, c. 363, defines "em- 
ployees" as "permanent and regular employees in the direct 
service of the commonwealth or in the metropolitan district 
service, whose only or principal employment is in such service." 

By section 3 of the act a retirement association is established 
and membership is made optional for all employees in the serv- 
ice of the Commonwealth on Jan. 1, 1912, and compulsory for 
persons under fifty-five years of age thereafter entering the 
service of the Commonwealth who were not entitled to a pension 
from the Commonwealth for any reason other than member- 
ship in the association. 



106 OPINIONS OF THE ATTORNEY-GENERAL. 

Section 3 also provides in the paragraph numbered (4), as 
follows : — 

Any member who reaches the age of sixty years and has been in the 
continuous service of the commonwealth for a period of fifteen years 
immediately preceding may retire or be retired by the board of retire- 
ment upon recommendation of the head of the department in which he is 
employed, and any member who reaches the age of seventy must so retire. 

There are in the Commonwealth a number of commissions 
consisting of three or more members who were appointed by the 
Governor, with the consent of the Council, for terms of years 
and who receive salaries from the Commonwealth, — the chair- 
man of the commission sometimes receiving a salary in excess 
of that received by the other members of the commission by 
virtue of being chairman. As persons on the pay roll of the 
Commonwealth, employed in the direct service of the Common- 
wealth, whose only or principal employment is in such service, 
certain members of such commissions become members of the 
retirement association organized under the provisions of sec- 
tion 3. 

The question upon which you request my opinion is, whether 
the chairman of such a commission is to be considered, within 
the meaning of paragraph (4), above quoted, "the head of the 
department" in the sense that he can recommend the retirement 
of one of the other members of the commission of which he is 
chairman. 

In my opinion the chairman of such a commission as those 
referred to is not, within the meaning of the provision quoted, 
"the head of the department." 

The members of such commissions are, in contemplation of 
law, equal in their jurisdiction and powers. The fact that the 
board is organized, for convenience in the transaction of busi- 
ness, with a chairman as presiding officer does not transform 
the board into a single-headed department and does not consti- 
tute the chairman head of the department in the sense that he 
may recommend the retirement of his fellow members of the 
commission. 



JAMES M. SWIFT, ATTORNEY-GENERAL. 107 



Automobiles owned by the Commonwealth — Negligence 
OF Chauffeur in the Employment of the Common- 
wealth — Personal Liability — Members of Boards 
OR Commissions. 

Where an automobile is under the care and control of a state board or commission 
or the members thereof and is used by such commission or by its members or 
executive officers or agents, with the consent of the commission, for the pur- 
pose of traveling upon official business, such commission or members, officers 
or agents are not personally liable for injury caused by such automobile to 
persons or property through the negligent conduct of the chauffeur if such 
commission, members or officers or agents at the time of using such auto- 
mobile are engaged in the proper performance of their official duties and are 
not themselves negligent or otherwise at fault in their direction of such 
chaufTeur in such a manner as to contribute to the cause of the injury. 

You have requested my opinion upon certain questions aris- Tothe 
ng from the following facts as stated by j^ou: — Park"^' ^^ 

Commission. 
1913 

The Metropolitan Park Commission has under its care and control an October 22. 



lutomobile used by the commission, or members thereof, or by the secre- 
ary or engineer with the consent of the commission, for the purpose of 
ravehng on official business of the commission. Whenever the com- 
nission or members thereof, or the secretary or the engineer, travel in 
his automobile, the machine is driven by a chaufTeur employed by the 
ommission and paid out of its maintenance appropriation. In such cases 
he chauffeur is subject to the direction and control of the member or 
nembers of the commission, or of the secretary or engineer, as the case 
aay be, for the time being, riding in the machine. 

The questions submitted by you are as follows: — • 

(1) If the commission or any member thereof should be traveling on 
'fiicial business in said automobile, driven by such a chauffeur subject 
the general direction of the commission or such member thereof, and, 
hrough the negligent conduct of the chauffeur, injury should be caused 
ly such automobile to person or property, would the commission, or any 
lember or members thereof, traveling as stated at the time, be per- 
onally liable for such injury? 

(2) If the secretary or the engineer should be traveling on official 
'Usiness in said automobile, driven by such a chauffeur, subject to the 
eneral direction of the secretary or engineer, as the case might be, and, 
hrough the neghgent conduct of such chauffeur, injury should be caused 



108 OPINIONS OF THE ATTORNEY-GENERAL. 

by such automobile to person or property, would the secretary or engineer, 
traveling as stated, under the circumstances be personally liable for 
such injury? 

I infer from the statement that the automobile mentioned is 
"under the care and control" of the commission, that it is an 
automobile paid for and owned by the Commonwealth. I un- 
derstand also that the chauffeur is an employee of the Com- 
monwealth w^hose salary is paid from the treasury of the 
Commonwealth. 

My opinion upon your first question is that the commission 
or members thereof are not personally liable for injury caused 
by the Commonwealth's automobile to persons or property 
through the negligent conduct of the chauffeur if the commis- 
sion or members thereof traveling at the time are engaged in 
the proper performance of their official duties and are not them- 
selves negligent or otherwise at fault in their direction of the 
chauffeur in such a manner as to contribute to the cause of the 
injury. 

My opinion upon your second question is that the secretary 
or engineer is not personally liable for injury caused by the 
Commonwealth's automobile to persons or property through the 
negligent conduct of the chauffeur if the secretary or engineer 
traveling at the time is engaged in the proper performance of 
his official duties and is not himself negligent or otherwise at 
fault in the direction of the chauffeur in such a manner as to 
contribute to the cause of the accident. 



JAMES M. SWIFT, ATTORNEY-GENERAL. 109 



'harmacy Law — Business of Pharmacy — Dry Goods and 
Mercantii-e Corporation — Lease of Floor Space to 
Registered Pharmacist — Ownership of Stock in 
Trade. 

,'here a corporation organized to carrj' on a dry goods and mercantile business 
leases floor space to a registered pharmacist to conduct the business of phar- 
macy upon the condition that the leased premises shall be held by the lessee 
"for and during such time as he shall continue to run the drug store therein, 
yielding and paying therefor as rent such proportion of the gross profits arising 
from the operation, conduct and maintenance of said store as shall be agreed 
to between said lessor and said lessee," the lessor retaining the ownership of 
all stock in trade, and the only interest of the registered pharmacist being 
that of lessee, such corporation is engaged in retailing, compounding for 
sale or dispensing for medicinal purposes drugs and medicines, within the 
provisions of R. L., c. 76, § 18, as amended by St. 1913, c. 720, § 1, that 
"whoever, not being registered as aforesaid, retails, compounds for sale or 
dispenses for medicinal purposes drugs, medicines, chemicals or poisons, 
. . . shall be punished by a fine of not more than fifty dollars, ..." and 
that "no unregistered co-partner or unregistered stockholder in a corpora- 
tion doing a retail drug store business shall hereafter be actively engaged 
in the drug business," and, not being registered, is unlawfully engaged therein. 

You have requested my opinion upon questions arising from Tothe 

le following facts as stated by you : — R^stration in 

PhariDacy. j 
1913 

The Shepard Norwell Company, incorporated to do a dry goods and October 27. 

ercantile business, desires to do a drug business in the following 

anner, — to lease space in its place of business to a registered phar- 

acist under the accompanying form of lease, Shepard jSorwell Com- 

ny owning the stock in said space so leased, the registered pharmacist 

ming nothing. They desire said pharmacist to procure a sixth class 

ense. 

The form of lease submitted with this statement provides that 
e Shepard Norwell Company shall lease space in its Boston 
ore to the lessee — 

To have and to hold the same to the said lessee (but not to his exec- 
'3rs, administrators or assigns) for and during such time as he shall 
< titinue to run the drug store therein. 

Yielding and paying therefor as rent such proportion of the gross 
Jifits arising from the operation, conduct and maintenance of said 
f ire as shall be agreed to between said lessor and said lessee. 



110 OPINIONS OF THE ATTORNEY-GENERAL. 

The lease also contains the following clauses : — 

The lessee further covenants that he will not advertise said store, or 
the business therein conducted, except in such advertisements as shal] 
first be approved by the lessor, and then only in connection with othei 
advertisements of the lessor, or in such places, newspapers, periodicals 
and mediums as the lessor shall designate. 

The lessee further covenants that he will as such lessee in the conduci 
of such drug store comply with such rules and regulations as to the man- 
agement and upkeep thereon as the lessor shall lay down for the genera 
guidance of its store conducted at the above number; and he will mak( 
no alterations in the leased premises without on each occasion first pro- 
curing the written consent of the lessor thereto; that the lessor and itf 
agents and servants may at any time and from time to time enter anc 
\'iew the leased premises and make such repairs or alterations therein a: 
shall be necessary. 

The questions submitted by you are : — 

1. Can the Board of Registration in Pharmacy recognize said druj 
store as being lawfully conducted? 

2. Could a certificate for sixth class hcense be granted to the lessee o 
said space? 

In my opinion both questions must be answered in the nega^ 
tive. 

R. L., c. 76, § 14, as amended, requires that persons wishing 
to do business as pharmacists shall be examined and registerec 
by the Board of Registration in Pharmacy. Section 18 of saic 
chapter, as amended by St. 1913, c. 720, § 1, provides as fol- 
lows: — • 

Whoever, not being registered as aforesaid, retails, compounds fo 
sale or dispenses for medicinal purposes drugs, medicines, chemicals o 
poisons, except as provided in section twenty-three, shall be punishe( 
by a fine of not more than fifty dollars, but the pro^^sions of this sectioi 
shall not prohibit the emploj-ment of apprentices or assistants and th 
sale by them of any drugs, medicines, chemicals or poisons under tb 
personal supervision of a registered pharmacist. No unregistered co 
partner or unregistered stockholder in a corporation doing a retail druj 
business shall hereafter be actively engaged in the drug business. Ever 
registered pharmacist carrying on the drug business as proprietor or a 
manager shall cause his name to appear on every sign indicating o 
advertising his place of business and on every label used for medicina 



JAMES M. SWIFT, ATTORNEY-GENERAL. Ill 

jreparations compounded in his place of business. The term "personal 
^upendsion " as used in the act shall mean that a registered pharmacist 
s in charge and present in the store. 

In my opinion it is clear from an examination of the facts 
;tated and of the terms of the lease submitted that the Shepard 
'^orwell Company would, under such circumstances, be engaged 
n retailing, compounding for sale or dispensing for medicinal 
)urposes drugs and medicines. 

The fact that the terms upon which the person who is to have 
upervision of the drug business is employed take the form of a 
ease does not alter the essential fact that the business is owned 
nd managed by the Shepard Norwell Company. Since that 
orporation is not registered in accordance with the provisions 
f law, its drug store could not be considered by the Board as 
'cing lawfully conducted. 

Section 23 of chapter 100 of the Revised Laws, as amended 
y St. 1909, c. 261, authorizes the Board of Registration in 
'harmacy to issue certificates to persons, stating that in the 
adgment of the Board they are proper persons to be intrusted 
j nth a sixth class license. Section 22 of the same chapter of 
he Revised Laws, as amended by St. 1913, c. 410, provides as 
jUows: — 

One or more licenses of the sixth class shall be granted annually by 
le licensing board of cities, or by the mayor and aldermen of cities 
iving no such board, or by the selectmen of towns, to retail druggists 
■ apothecaries who are registered pharmacists actively engaged in 
isiness on their own account, upon presentation to the licensing board 

the certificate prescribed by the following section, if it appears that 
le applicant is a proper person to receive such hcense, and is not dis- 
lalified to receive it under the provisions of sections fifty-three and 
ty-four. A registered pharmacist who owns stock of the actual value 

at least five hundred dollars in a corporation which has been incor- 
)rated for the purpose of carrying on the drug business, and who 
inducts in person the business of a store of such corporation, shall be 
nsidered as actively engaged in business on his own account and as 
laUfied to receive a hcense for such store. 

In my opinion upon the facts stated the lessee of the Shepard 
orwell Company cannot be considered to be a registered phar- 



112 OPINIONS OF THE ATTORNEY-GENERAL. 

macist "actively engaged in business on his own account," and 
so to be qualified to receive such a license. 

The fact that a drug business cannot lawfully be carried on 
under such circumstances as appear in this case, under existing 
law, appears to have been recognized by the Legislature in the 
enactment of St. 1913, c. 705, entitled "An Act to provide for 
registering and licensing stores for transacting retail drug busi- 
ness." That act provides that the Board of Registration in 
Pharmacy may issue permits to keep open stores for the trans- 
action of a retail drug business to such persons, firms and cor- 
porations as the Board may deem qualified to conduct such a. 
store. Since, however, this act by its terms does not take effect 
until the first day of January, 1914, its only bearing upon thei 
questions presented is to confirm the view above expressed, that 
under existing law such a drug store would not be lawfully con- 
ducted. 



Commonwealth — Land and Buildings belonging to State ' 
Hospital — Trustees • — Exclusion of Public from Use) 
of Land, 

The Board of Trustees of the Worcester State Hospital have the right to prevent 
persons from entering upon the property of the Commonwealth devoted to 
the purposes of such hospital for any purpose for which such persons are not 
authorized by law to enter upon the premises, and if, in the judgment of such 
trustees, it is for the best interest of such institution that the public, unless 
entering for certain specified purposes, should be excluded from the land and 
buildings belonging thereto, they are authorized to exclude it. 

Tmstles of the ^ou havc requested my opinion as to certain rights and duties 
state^Hospitai. 0^ your Board. The questions submitted by you are as fol-' 

1913 1 
November 1. lOWS : 

1. Have we the right to prevent people coming on property of the 
Commonwealth used for the care of the State's wards? 

2. If we have the right, is it our duty to prevent persons who come 
on for the purpose of getting, or being on the premises on legitimate 
business avail themselves of the opportunity to get, photographs of 
patients who happen to be outdoors? 



JAMES M. SWIFT, ATTORNEY-GENERAL. 113 

In my opinion you clearly have the right as matter of law to 
irevent people from coming on the property of the Common- 
wealth devoted to the uses of the institution for any purposes 
jT which they are not authorized by law to enter upon the 
remises. 

The mere fact that the land and buildings of the institution 
re owned by the Commonwealth does not give to the general 
ublic the same rights which they have in a public park or com- 
lon or recreation grounds. 

The lands and buildings of the institution have been set apart 

y the Legislature representing the public for a certain specific 

se, — the care of the insane. Under the statutes of the Com- 

lonwealth the trustees of each institution for the insane have 

barge of the general interests thereof and are vested with the 

Dvernment of the institution. If, in the judgment of the 

•ustees, acting reasonably and in good faith, it is for the best 

iterests of the institution and the inmates thereof that people 

lould be excluded from the land and buildings of the institu- 

on unless entering for certain defined purposes, the trustees 

re not only authorized by law to exclude them but are bound 

1 1 the proper performance of their duties to exclude them. 

Your second question, so far as it is a question as to your 

ghts, is answered by the reply to the first. Whether it is your 

I uty to prevent the taking of photographs of patients who hap- 

len to be out of doors on the premises of the institution, is 

ither a question of policy than a question of law and is, there- 

•re, not strictly one upon which it is my official duty to advise. 

my opinion upon this question will be of any assistance to 

)U, however, I have no objection to stating that in my opinion 

3 court would hold unreasonable a regulation by the trustees, 

id the public at large would not consider unjustified such 

;tion to prevent photographs being taken for exhibition in the 

ablic press or other purposes of those who are so unfortunate 

i to be suffering from disordered minds, to the distress of their 

latives and friends. 



114 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the 

Insurance 

Commissioner. 

1913 
November 21. 



Insurance — Title Insurance — Guaranty Fund — Invest- 
ment — Mortgages — Stock in Trade — Trading 
Capital. 

A title insurance company organized under the laws of this Commonwealth may 
not use as ordinary trading capital the guaranty fund which is required to 
be created and maintained by St. 1907, c. 576, § 64, providing that every 
such corporation shall set apart and invest as a trust for the benefit of its 
policy holders not less than two-fifths of its capital to be applied only to the 
payment of losses and expenses incurred by reason of the guaranty or insur- 
ance contracts of the corporation and may not use as stock in trade the 
mortgages in which such fund is invested. 

You have requested my opinion upon the question whether 
a title insurance company organized under the laws of this 
Commonwealth may trade in the mortgages in which its 
guaranty fund is invested, for the purpose of obtaining capital 
to carry on its business. 

The guaranty fund of a domestic title insurance company is 
required to be created and maintained under St. 1907, c. 576, 
§ 64, which provides as follows : — 

Every such corporation shall set apart an amount not less than tw( 
fifths of its capital, and not less than one hundred thousand dollars ir 
any case, as a guaranty fund, and shall invest it subject to the sanw 
limitations as are imposed upon the investment of the capital of domestic 
insurance companies, and shall issue no poUcy and make no contract ol 
guaranty or insurance until such amount is so set apart and invested. 

The principal of such guaranty fund shall be a trust for the protectior 
of policy holders, and shall be applied only to the payment of losses anc 
expenses incurred by reason of the guaranty or insurance contracts ol 
the corporation. Whenever the corporation shall increase its capital 
two fifths or a sufficient part of the increase shall be set apart and dul} 
invested and added to the guaranty fund so that such fund shall alwayf 
be not less in amount than two fifths of the entire capital. 

If, by reason of losses or other cause, the guaranty fund is less thar 
two fifths of the capital, the company shall make no further contract ol 
guaranty or insurance until the fund is made good. 

Section 37 of the same chapter, regulating the investment ol 
the capital of domestic insurance companies, provides, in para- 
graph numbered 4, that the capital of such companies may be 
invested in loans upon improved and unincumbered real prop- 



JAMES M. SWIFT, ATTORNEY-GENERAL. 115 

Tty in any State of the United States, provided that no loan 
)n such property shall exceed 60 per cent, of its market value, 
md that fact shall be properly certified. 

According to the statement of facts contained in your letter, 
he title insurance company in question has a guaranty fund of 
he amount required by law, which is invested in mortgages of 
6,000 or less, and I infer from your letter and the oral state- 
ment accompanying it that the requirements of section 37 have 
een complied with, so that the investment is lawful in character. 

In my opinion the company may not properly use its guar- 
nty fund for trading purposes. The language of section 64, 
bove quoted, is clear and unequivocal in the expression of the 
;gislative intent that the fund shall not be used as ordinary 
'ading capital and that the mortgages in which the fund is in- 
ested shall not be used as stock in trade. 

The statute provides that the company shall "set apart" a 
srtain fund for guaranty purposes, thus segregating it from its 
ctive funds. It provides that the fund shall be "invested" 
ibject to certain limitations, implying a permanency of invest- 
lent inconsistent with speculative and active trading and that 
the principal of such guaranty fund shall be a trust for the 
rotection of policy holders," and limits the application of the 
ind to the payment of losses and expenses incurred by reason 
: the guaranty or insurance contracts of the corporation, and it 
irefully guards the integrity of the fund. 

The corporation is, of course, not to be considered as pre- 
jnted by these provisions from making such changes in the 

ortgages in which the guaranty fund is invested as the interests 

the beneficiaries of that fund may require. It is not only 

ithorized but is required by these provisions to make changes 

the investment if it is necessary to do so to prevent impair- 

ent of the security afforded by the fund. The essential point 

that the statute requires that this fund shall be set apart 
a trust fund for purposes of protection, and that it shall be 

(ministered in accordance with the character given it by 

e statute and not as active trading capital. See 1 Op. 

tty .-Gen. 41. 



116 OPINIONS OF THE ATTORNEY-GENERAL. 



OPINIONS 

OF 

THOMAS J. BOYNTON, ATTORNEY-GENEEAl. 



Surgery — Unauthorized Operations, when permitted. 

A surgical operation which is immediately necessary for the preservation of lift 
or health may be performed without the consent of the patient if it is im- 
practicable to secure such consent or the consent of any one authorized tc 
speak for him. 

^ndent^oUhi"' ^^ rcsponsc to youF inquiry in regard to a surgical operation 
^yh^"^^**^^ upon an inmate of your hospital, I have to say that there is. 
January 26. as you are doubtless well aware, a well settled rule of law thati 
in all cases where a patient is in full possession of his faculties 
and able to consult about his condition, his consent is a neces- 
sary prerequisite to a surgical operation by his physician. Ir 
cases where an emergency arises calling for immediate actior 
for the preservation of life or health of the patient, and it is 
impracticable to obtain his consent or the consent of any one 
authorized to speak for him, it is the duty of the physician tc 
perform such operation as good surgery demands without such 
consent. The only case that will justify surgical operation 
without consent is "necessity for immediate action for the 
preservation of life or health." It does not seem to me that] 
the case you state falls within this class, and, in my opinion 
you should not operate without the consent of a legally ap- 
pointed guardian. 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 117 

)isTRiCT Police — Transfer to Board of Labor and In- 
dustries — Retransfer. 

t. 1913, c. 610, § 1, providing for appointment by the Governor in case of va- 
cancies in the two inspection departments of the District Police, did not 
repeal St. 1913, c. 424, § 1, permitting inspectors of factories and public 
buildings of the District Police who were transferred to the State Board of 
Labor and Industries from being transferred to the building department of 
the District Police to fill vacancies, upon their request. 

You ask my opinion as to whether the provisions of section 1 J/'the^M ^*^ 
f chapter 610 of the Acts of 1913 repeal that part of section t^et PoiiS.!^ 

of chapter 424 of the Acts of 1913 which relates to the trans- jani^itas. 
T of certain inspectors from the service of the State Board of 
abor and Industries to the building department of the District 
olice. 

That part of section 1 of chapter 424 of the Acts of 1913 to 
hich you refer reads as follows : — 

The inspectors of factories and public buildings of the district police 
ho were transferred to the state board of labor and industries, estab- 
5hed by chapter seven hundred and twenty-six of the acts of the year 
ineteen hundred and twelve, shall, upon their request in writing to the 
)vernor, be transferred to the building department of the district police 
) fill any vacancies in that department which may occur after the first 
ly of June in the year nineteen hundred and thirteen. 

This act was approved April 2, 1913, and took effect upon its 
assage. That part of said section 1 of chapter 610 of the 
cts of 1913 relating to appointments to the two inspection 
epartments of the District Police reads as follows: — 

All future vacancies in either of the two departments established by 
lis act shall be filled by the governor, subject to existing laws governing 
16 appointment of the chief, deputy chiefs and members of the detective 
id inspection departments of the district police, by appointment to the 
jpartment in which the vacancy occurs. 

'he last-mentioned act was approved May 8, 1913, and also 
)ok effect upon its passage. That the Legislature had in 
lind the provisions of chapter 424 when chapter 610 was en- 
cted was evidenced by the fact that appointments to be made 



118 



OPINIONS OF THE ATTORNEY-GENERAL. 



under the provisions of chapter GIO are to be made "subject to 
existing laws governing the appointment of the chief, deputy 
chiefs and members of the detective and inspection depart- 
ments of the district poUce." 

These words clearly indicate that the Legislature did not 
intend to change chapter 424 in so far as it affected the rights 
of those inspectors who might desire, upon their written re- 
quest to the Governor, to be transferred to the building in- 
spection department of the District Police. 

In case a vacancy occurs in the building department of the 
District Police, as suggested in your letter, the Governor may 
make an appointment in accordance with the provisions of 
chapter 610 of the Acts of 1913, but subject, however, to the 
right of any one who has been an inspector of factories and 
public buildings of the District Police and has been transferred 
to the State Board of Labor and Industries, upon his request 
in writing to the Governor, to be appointed to fill such vacancy. 

It is my opinion that section 1 of chapter 610 of the Acts of 
1913 does not repeal that part of section 1 of chapter 424 of the 
Acts of 1913 hereinbefore quoted. 



To the 

Commissioner 
of Labor. 

1914 
January 28. 



Employment of Minors — Employment of Women — 
Stenographers and Bookkeepers. 

Minors who are employed as bookkeepers, stenographers, clerks or clerical assist- 
ants are within the provisions of St. 1913, c. 831, regulating the labor of 
minors. 

The law relative to the employment of women as stenographers, bookkeepers and 
in similar clerical positions was not changed by St. 1913, c. 758. 

Referring to your inquiry under date of Oct. 8, 1913, I under- 
stand your first question to be: Are minors who are employed 
as bookkeepers, stenographers, clerks or clerical assistants 
within the provisions of chapter 831 of the Acts of 1913? 

The words of limitation and prohibition in the various sec- 
tions of chapter 831 are, "no minor . . . shall be employed or 
permitted to work," and the construction of the statute depends 
upon the scope of the words "employed or permitted to work." 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 119 

The word "employed" has been defined as "the act of 
Icing a thing and being under contract or orders to do it." 
United States v. Morris, 14 Peters, 464, 475. The word may 
)e further defined as, "involved in action of body or mind; 
cept in service." 

The word "work" may fairly be said to be a generic term 
hat includes every kind of human employment. 

The manifest purpose of this statute is to limit carefully the 
lours of employment of minors and to protect them from the 
langers, physical and moral, of certain occupations named 
herein. It is my opinion that minors who are within the ages 
pecified in the various sections of this chapter and are em- 
iloyed as bookkeepers, stenographers, clerks or clerical assistants 
re within the provisions of this statute. 

Your second question, as 1 understand it, is: Did the en- 
ctment of chapter 758 of the Acts of 1913 make any change in 
he law in regard to the hours of employment of women as 
tenographers, bookkeepers or in other similar clerical positions? 

As suggested in your letter of inquiry, the controlling and 
lescriptive words in the later statute, "employed in laboring," 
re the same as those used in the earlier one, so that in this 
3iportant particular there is no change. It is my opinion that 
he law as to the employment of women who are above the 
ge of twenty-one years as stenographers, bookkeepers and in 
ther similar clerical positions was not changed by the enact- 
lent of chapter 758 of the Acts of 1913. 



'ONSTITUTIONAL LaW — GOVERNOU — COMMUTATION OF LiFE 

Sentence. 

he Governor has constitutional authority, with the advice of the Council, to 
commute sentences of life imprisonment to imprisonment for a term of 

years. 

You request my opinion upon the following question: "Have To the 
, under the laws of this Commonwealth, the power or right to , i9i* 

' ^ ^ , January 28. 

irry out a recommendation of the Parole Board, the Advisory 



120 OPINIONS OF THE ATTORNEY-GENERAL. 

Board of Pardons, which Board after investigation recommends 
as follows: that the Governor now commute a sentence from 
imprisonment for life to imprisonment for the term of twenty 
veaTs." 

The pardoning power is conferred upon the Executive by the 
Constitution of the Commonwealth. Article VIII, section I, 
chapter II of part the second of the Constitution provides that — 

The power of pardoning offences, except such as persons may be con- 
victed of before the senate by an impeachment of the house, shall be in 
the governor, by and with the advice of council. 

The words "the power of pardoning offences " are compre- 
hensive. They include not only that absolute release from the 
penalty which is commonly referred to as a pardon, but those 
lesser exercises of clemency which are described as conditional 
pardon, commutation of sentence and respite of sentence. The 
only authority for the executive department of the government 
to mitigate or release from sentence for crime is this language 
of the Constitution. The Governor is clothed with authority 
to act in that respect only " by and with the advice of council.' 
The unmistakable meaning of these words is that he can ad 
only in conformity with the advice of the Council. He maj 
decline to take action although the Council advise him to do so 
Responsibility for granting a pardon rests upon the Governor 
and he cannot be compelled to take such action by the Council. 
The granting of a full or a partial pardon .is the result of con- 
current action by both the Governor and Council. Neithei 
alone can take effective action. Both must agree before the 
Constitution is satisfied. The same principle applies whethei 
the act be a complete or a modified pardon. A commutatior 
of sentence, which is the substitution of a lighter for a more 
severe punishment, is an exercise of the pardoning power and 
must be in accordance with the Constitution. It is an act ol 
the Governor which becomes effective only when concurred ir 
by the Council. See Opinion of the Justices, 14 Mass. 472 
Opinion of the Justices, 210 Mass. 610. "The commutation oi 
a sentence is a pardon upon condition that the convict volun- 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 121 

arily submits to a lighter punishment." Oinnion of the Justices, 
90 Mass. 616, 621. 

It is my opinion, therefore, that the Governor may, with 
he advice of the Council, commute the sentence of a prisoner 
rem life imprisonment to a term sentence, the commutation to 
ecome effective if petitioned for by the prisoner or accepted 
y him. 

;ngineers — Firemen — Special License — Employment — 

Vacations. 

nder St. 1911, c. 562, § 8, a special license issued to an engineer or fireman before 
the passage of the act becomes null and void whenever the holder ceases 
to be employed on the plant specified in said license. 

ader this section the words "ceases to be employed" mean a complete severance 
1 from one's employment, and not absences on account of a vacation, illness 
or leave of absence. 

I You request my opinion upon certain questions based upon To the Chief 
:ction 8 of chapter 562 of the Acts of 1911, which provides as chusettsDis- 

^ ^ trict Police. 

Hows:— . 191* 



January 28. 



This act shall take effect on the first day of January in the year nine- 

! en hundred and twelve, and a license in force on the first day of January 

the year nineteen hundred and twelve shall continue in force until it 

suspended or revoked for the incompetence or untrustworthiness of 

I e licensee, except that a special license shall not continxie in force after 

' ? holder thereof ceases to be employed on the plant specified in the license. 

license in force on the first day of January in the year nineteen hundred 

, d twelve may be exchanged for a license of the same class under this 

t at any time thereafter, on application to the boiler inspection depart- 

3nt of the district police, upon forms to be furnished by said department. 

le applicant shall make oath to the statements contained in the said 

plication, and the members of the boiler inspection department of the 

strict police are hereby authorized to administer the oath. 

Your questions are — 

First. — A man was granted a special license in 1910, before the en- 
itment of section 2 of chapter 562, Acts of 1911, which amended section 
<' of chapter 102 of the Revised Laws by striking out the entire section 
1 d inserting a new section in place thereof, part of which reads as shown 
1 italics above. The question now arises whether such licensee, having 
Isn licensed prior to the enactment of section 2, chapter 562, Acts of 



122 OPINIONS OF THE ATTORNEY-GENERAL. 

1911, comes within the provisions of this clause; that is to say, whether 
such license continues in force if he should cease to be employed on the 
plant specified thereon, the license having been granted prior to such 
amendment. 

Second. — Under the provisions of the statutes, prior to Jan. 1, 1912, 
it was necessary that an engineer's or fireman's license should be renewed 
every three years; but, under the provisions of the statute above quoted, 
a license in force on the first day of January, 1912, continued in force, 
and, therefore, does not have to be renewed. By the same provisions a 
licensee could exchange such license for a new license if he so desired. Ie 
the event of your deciding the first inquiry in the affirmative, would thf 
fact of such man having exchanged such license bring him fully withir 
the provisions of the statute above quoted? 

Third. — If such licensee does come within the provisions of the statute 
above quoted, so far as relates to the license continuing in force only s( 
long as he shall continue to be employed on the plant specified in thi 
license, would the fact of his having been granted a leave of absence 
extending for a period of six months or more for the purpose of visitin) 
in Europe, be considered as his having ceased to be employed on thi 
plant specified in the license, although his name was retained on the rol 
of employees and he was again employed on the plant specified imme 
diately upon his return to this country? 

Referring to your first question, when the Legislature enacts 
section 8 above quoted and provided that " a license in force oi 
the first day of January in the year nineteen hundred anc 
twelve shall continue in force until it is suspended or revoked 
for the incompetence or untrustworthiness of the licensee," i 
very clearly and evidently intended to, and did, make an ex 
ception in regard to special licenses by following the languag*. 
last above quoted with these words: "except that a special li 
cense shall not continue in force after the holder thereof ceases ti 
be employed on the plant specified in the licence." 

It is my opinion that a special license issued before the en 
actment of chapter 562 of the Acts of 1911 becomes null am 
void whenever the holder of it ceases to be employed on thi 
plant specified therein. 

The answer to your second question is included in the answe: 
to your first, and I assume that, as the answer to your firs 
question is negative, no further answer is required. 






THOMAS J. BOYNTON, ATTORNEY-GENERAL. 123 

Taking up your third question, I have to say that the words 
ceases to be employed," as used in the statute above quoted 
Aih reference to the holder of a special license, mean a com- 
lete severance from his employment. An employee who is 
bsent from the plant where he is employed on a vacation, on 
ccount of illness or on leave of absence, even for a period of 
X months, his name being retained on the roll of employees, 
as not, in my opinion, ceased to be employed in the sense 
itended by the statute, and his license, therefore, remains in 
)rce. 



Agricultural Societies. 

ader R. L., c. 124, § 1, providing that certain agricultural societies may receive 
bounties from the Commonwealth if not within twelve miles from the 
grounds of another such society, the distances should be computed on the 
way of travel from one point to another. 

Under date of January 28, you have ^Titten me as follows : — to the state 

Board of 

Referring to section 1 of chapter 124 of the Revised Laws, as amended ^"1914"'^'^" 
' chapter 133 of the Acts of the year 1909, the State Board of Agriculture J'^ "'^^y ^^- 
Teby requests your opinion as to whether, in line 6 and again in line 25 
said section, the distance of twelve miles should be interpreted to mean 
a straight line or by the shortest highway between the two points in 
lestion. 

I The statute in question provides that — 

Every incorporated agricultural society which was entitled to bounty 
)m this commonwealth before the twenty-fifth day of May in the year 
;hteen hundred and sixty-six, and every other such society whose ex- 
Dition grounds and buildings are not within twelve miles of those of a 
i liety which was then entitled to bounty 

ay under certain conditions receive a bounty from the 

Dmmonwealth. 

The obvious purpose in establishing the twelve-mile limit was 
1 prevent the growth of too many societies in the same locality, 
'th the consequent division of effort. No good public purpose 
Muld be served by construing this limit as a bee-line limit. 

hat possible objection could there be to the existence of two 



124 



OPINIONS OF THE ATTORNEY-GENERAL. 



societies ten miles apart in a bee-line through impassable 
mountains, althougli one hundred miles apart by road! The 
statute evidently contemplates twelve miles of farmer's travel, 
the case being analogous to that of a statute or court rule pro- 
viding that depositions may be taken of witnesses living more 
than a certain number of miles from court, which statutes and 
rules obviously contemplate the distance that the witness would 
have to travel. See Jennings v. Menaugh, 118 Fed. 612, and 
cases cited. 

Our Supreme Judicial Court has held that in the case of t 
statute which prohibits the granting of a liquor license foi 
"any building or place on the same street within four hundrec 
feet of any building occupied in whole or in part as a publii 
school," "the four hundred feet between them are to be deter 
mined by measuring the nearest point of each house to th 
other." Commonwealth v. Jones, 142 Mass. 573, 576. 

This decision may, however, be differentiated. The fou 
hundred feet restriction is either purely arbitrary or, at most, i 
based on a general consideration of the concomitants of prox 
imity, including sight, smell, noise and the general effect on 
neighborhood, as well as mere accessibility. But no considera 
tion except that of accessibility can well be the reason for 
long limit, such as the twelve-mile distance in the statute i 
question. 

It is my opinion, therefore, that the twelve-mile distance i 
chapter 133 of the Acts of 1909 is to be computed on the wa 
of travel from one point to the other. 



To the 

Committee on 
Legal Affairs. 

1914 
January 31. 



Constitutional Law 



Justice of the Peace 
Public. 



Notar' 



An act providing that "all members of the Massachusetts bar are hereby mac 
justices of the peace and notaries public" would be unconstitutional. 

You have requested my opinion as to whether House Bi 
No. 515, if enacted, would be constitutional. This bill is i 
the following terms: — 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 125 

Section 1. All members of the Massachusetts bar are hereby made 

stices of the peace and notaries public, with all the privileges, powers 

d duties belonging to said offices. 

Section 2. A certificate from the clerk of the supreme court, who 

all keep a record of such members, shall be proof that the person men- 

med therein is such a member and a justice of the peace and notary 

blic. 

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

"By the Constitution of the Commonwealth the office of 
stice of the peace is a judicial office." Opinion of the Justices, 
7 Mass. 604. 

Article IX of section I of chapter II of part the second of 
e Constitution provides, in part, that — 

Ml judicial officers . . . shall be nominated and appointed by the 
, /ernor, by and with the advice and consent of the council. 

Article III of chapter III of part the second of the Constitu- 
)n provides as follows : — 

[n order that the people may not suffer from the long continuance in 
] ce of any justice of the peace who shall fail of discharging the important 
( ties of his office with ability or fidelity, all commissions of justices of the 
1 ice shall expire and become void, in the term of seven years from their 
1 pective dates; and, upon the expiration of any commission, the same 
1 y, if necessary, be renewed, or another person appointed, as shall most 
( iduce to the well-being of the commonwealth. 

As to the appointment of notaries public, the fourth amend- 
1 mt to the Constitution provides that — 

S^otaries public shall be appointed by the governor in the same manner 
a judicial officers are appointed, and shall hold their oflaces during seven 
J irs, unless sooner removed by the governor, with the consent of the 
c incil, upon the address of both houses of the legislature. 

[n view of the provisions of the Constitution above quoted, 
Iiave to advise you that in my opinion this bill, if enacted, 
\ luld be unconstitutional. 



126 OPINIONS OF THE ATTORNEY-GENERAL. 



Public Records — Illegitimate Children. 

Under R. L., c. 29, § 1, par. 2, it is unlawful for a city or town clerk to use the 
term "illegitimate" in the record of a birth of a child unless the illegitimacy 
has been legally determined or admitted by the sworn statement of both the' 
father and mother of the child. 

m?sskfnw°S" You Tcquest my opinion in regard to the record of the birthi 
" 1914 ^^"^ '*' of a child to an unmarried woman. 

February 2. 



The statute dealing with the subject of registration of births 
(R. L., c. 29, § 1, par. 2) is as follows: — 

In the record of births, the date of the record, the date of birth, the i 
place of birth, the name of the child, the sex and color of the child, the 
names and places of birth of the parents, including the maiden name of 
the mother, the occupation of the father, and the residence of the parents, 
In the record of the birth of an illegitimate child the name of, and othei 
facts relating to, the father shall not be recorded except at the request in 
writing of both father and mother. The term "illegitimate" shall not 
be used in the record of a birth unless the illegitimacy has been legallj 
determined, or has been admitted by the sworn statement of both th^i 
father and mother. 

I note that the town clerk in his letter to you writes: "Now 
as a matter of fact this child is illegitimate and must be sc 
recorded." I respectfully suggest that you call his attentior 
to the fact that he is forbidden by the statute to use the tern 
"illegitimate" in the record unless the illegitimacy has beec 
legally determined or has been admitted by the sworn state- 
ment of both the father and mother. I advise that the towr 
clerk expunge the erroneous record already made, making the 
expunging a matter of record, and that he then make a recorc 
of the birth of the child in accordance with the provisions ol 
the statute. 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 127 



Civil Servicp: — Sealer of Weights and Measures. 

.. L., c. 62, § 18, is not repealed by St. 1909, c. 382, in so far as that section re- 
quires the annual appointment of sealers and deputy sealers of weights and 
measures in cities and towns of over ten thousand inhabitants; and although 
such sealers and their deputies are protected by civil service laws from being 
lowered in rank or compensation or removal from ofHce, their term of office 
is not extended. 

You request mv opinion upon the followiner questions, to TotheCom- 

^ " ^ ' o J. missioner of 

Jf . Weights and 

Measures. 
1914 

1. Does section 2 of chapter 382 of the Acts of the year 1909 have the Fe bruary 5. 
:ect of repeahng section 18 of chapter 62 of the Revised Laws in so far 

that section requires annual appointment of sealers and deputy sealers 
weights and measures in cities and towns of over ten thousand in- 
bitants, who are included in the classified civil service by the provisions 
said chapter 382 of the Acts of 1909? 

2. Are sealers and deputy sealers in cities and towns of over ten thou- 
od inhabitants protected by existing laws in reference to civil service, so 
at they shall be retained in office during good behavior, regardless of 
e change of municipal administration? 

I Chapter 382 of the Acts of 1909 is as follows: — 

Section 1. The civil service commissioners may prepare rules, which 
all take effect when approved by the governor and council in the manner 
Dvided by law, for including within the classified civil service all prin- 
)al or assistant sealers of weights and measures holding office by ap- 
intment under any city or any town of over ten thousand inhabitants, 

j lether such officers are heads of principal departments or not, and also 

■ • including within the said service the inspectors of weights and measures 

' the commonwealth. 
Section 2. All acts and parts of acts inconsistent herewith are hereby 

1 )ealed. 

Section 18 of chapter 62 of the Revised Laws, to which you 
I'er, provides as follows: — 

The maj'or and aldermen of cities and the selectmen of towns shall 
a lually, in March or April, appoint one or more sealers of weights and 
r asures, or one sealer and one or more deputy sealers to act under the 
cection of the sealer, and they may also appoint gangers of liquid 
n asures; and may at any time remove such sealers, deputy sealers and 
g igers, and appoint others in their places. 



128 OPINIONS OF THE ATTORNEY-GENERAL. 



I 



Section 18 not being expressly repealed by chapter 382 of 
the Acts of 1909 in the particulars to which you refer, the 
question arises as to whether it has been repealed by other 
legislation, and as to whether it was repealed by that chapter 
by implication. }■ 

Looking to other legislation, we find that the Legislature of 
1904, by chapter 314, enacted that — 

Every person holding office or employment in the public service of theJ 
Commonwealth or in any county, 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, transferred from 
such office or emploj^ment to any other except for just cause and for 
reasons specifically given in writing. 

After the passage of this act the cases of Smith v. Mayor oj 
Haverhill, 187 Mass. 323, and of Lahar v. Eldridge, 190 Mass. 
504, were passed upon by the Supreme Judicial Court, and i1 
was held that this statute did not extend the term of an officen 
appointed for a specified number of years but related to the 
removal, lowering in rank or compensation, suspension oi 
transfer of such an officer within the term for which he had beer 
appointed. In the first-mentioned case the court said : — 

Any other construction would enlarge an appointment for a term oi 
years into a life tenure, provided it was a classified office under the ci\'i 
service rules. 

This ruling left police officers in many cities in the Common 
wealth to be appointed annually or for some other stated term 
To remedy this condition of affairs as to police officers chapte 
210 of the Acts of 1906 was enacted, providing in substanct 
that police officers shall hold office during good behavior; bu 
the operation of that act is limited to police officers. N( 
similar legislation has been enacted in regard to sealers o 
weights and measures and their assistants or deputies or ii 
regard to inspectors. 

By section 1 of chapter 624 of the Acts of 1911 it is providec 
that — 



I 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 129 

Every person now holding or hereafter appointed to an office classified 
nder the civil service rules of the commonwealth, . . . whether ap- 
ointed for a definite or stated term, or otherwise, who is removed there- 
om, lowered in rank or compensation, or suspended, or, without his 
)nsent, transferred from such office or employment to any other, may 
. . bring a petition in the police, district or municipal court, etc. 

'his statute clearly recognizes the fact that appointments in 
16 classified civil service may be made for a definite or stated 
;rm. 

Coming to the question as to whether section 18 of chapter 
I of the Revised Laws was repealed by implication by chapter 
^2 of the Acts of 1909, we find that chapter 382 makes no 
'ovision whatever as to the t;me when or the term for which 
)pointments shall be made. It is clear that the provisions 

section 18 of chapter 62 of the Revised Laws, to the effect 
lat "the mayor and aldermen of cities and the selectmen of 
wns shall annually, in March or April, appoint one or more 
alers of weights and measures," etc., are not inconsistent 
ith the provisions of chapter 382 of the Acts of 1909, and 
erefore remain in force. I am of the opinion that section 2 

chapter 382 of the Acts of 1909 does not have the effect of 
pealing section 18 of chapter 62 of the Revised Laws in so 
r as that section requires annual appointment of sealers and 
•puty sealers of weights and measures in cities and towns of 
'er ten thousand inhabitants, who are included in the classified 
vil service by the provisions of said chapter 382 of the Acts 

1909. 

In reply to your second question I have to say that in my 

>inion sealers of weights and measures and their deputies in 

-ies of over ten thousand inhabitants are protected by exist- 

■ g civil service laws from being lowered in rank or compensa- 

■)n or removed from office during the terra for which they 

ive been appointed, but, as I have already indicated, in my 

')inion their term of oflace is not extended by reason of the 

: ovisions of chapter 382 of the Acts of the year 1909. 



130 OPINIONS OF THE ATTORNEY-GENERAL. 



coeporations — contracts — typewritten signature — 
Tests of Samples. 

A typewritten signature by a duly authorized agent of a corporation to a proposal 
for a contract is valid. 

In case of doubt in the construction of a contract, reference may be had to th? 
specifications as an aid in ascertaining the intention of the parties. 

Where a contract for the sale of coal of a certain grade provides that sample 
"will be taken until the total quantity amounts to about 1,000 pounds anc. 
shall represent not more than 500 tons of coal," and the samples are thui: 
taken on deliveries of any part of 500 tons, if the coal thus tested is beloy< 
the standard, penalties may be exacted as the contract provides. 

Where penalties are exacted under a contract for the sale of coal, of 1 per cent 
in price for every 1 per cent, below the Thermal Unit analysis specified 
the per cent, (including fractions) of price decrease exactly equaling thl 
per cent, of deficiency must be calculated. 

Supwintendent ^ou have rcqucsted my advice upon certain questions tha^ 
state Hospftar havc arisen in regard to a contract entered into on the twenty 
February 6. eighth day of May, 1913, by the Commonwealth of Massachu 
setts, acting by the trustees of your institution, party of thi 
first part, and the People's Coal Company of Worcester, partil 
of the second part, in regard to the purchase of a quantity c 
coal by the Commonwealth from the People's Coal Company 
and for the sale and delivery of said coal to the Commonwealth 
by said company. 

You ask first: "Is this proposal, having only typewritte 
signatures, legal?" 

Generally speaking, the validity of. a signature depends nc 
upon the instrument but upon the intention with which it wa 
made. If the intention of the signer is to make a contract or 
proposal for a contract a typewritten signature may be vali 
and binding. In those cases in which the signature is made b 
an agent, and this is necessarily the case whenever a corporal 
signature is required, the question always arises as to tb 
authority of the agent to make the signature. I assume ths 
in this case the person signing the proposal was duly authorize 
to do so by the People's Coal Company, with the intent t 
make a valid signature to the proposal, and therefore that tl 
signature is valid. 

Your second question is: "Does the fact that the clau; 



i THOMAS J. BOYNTON, ATTORNEY-GENERAL. 131 

)ata to establish a basis for payment,' as named on said pro- 
)sal, was not incorporated in the contract, eliminate from con- 
ieration the figures therein named, or is said proposal a part 
id parcel of said contract?" 

While we must look to the contract for a determination of 
e rights of the parties, still, in case of doubt as to its con- 
ruction, reference may be had to the specifications as an aid 
interpreting the contract and in ascertaining the intention of 
e parties. Applying this principle to the case in hand w^e 
;j.d in the typewritten contract, under the head of "Price," 
( page 3, the following: — 

(a) Should the British Thermal Units be less by more than two per 

< it. (2%) than those specified in the analysis, the price shall be decreased 

< ) per cent. (1%) for every one per cent. (1%) they fall below the said 
' T. U. after allowing the said two per cent. (2%). 

] Te the analysis is distinctly referred to, yet there is none 
i )wn in the contract, and the only one known to have been 

< isidered between the parties is that set out in the specifica- 
1 ns, to which we have to resort to ascertain what the analysis 
I erred to is. Referring to the specifications, we find on page 
r- under the head "Proximate Analysis," the following: — 

The following is the approximate analysis of the coal it is proposed to 
f 1 aish : — 

1 

ijisture, 90 

\ atile matter, 20.10 

I ed carbon, 73 . 14 

■Ai, 5.86 

Er.U., 14,961 

Sphur, 1.25 

1 iiperature at which ash fuses, 2700 

lis analysis, clearly referred to in the contract and found in 
tl specifications, undoubtedly affords the proximate standard 
othe coal to be furnished to your institution by the People's 
Cal Company and indicates that 14,900 B. T. U. was adopted 
a the standard from which percentages were to be computed. 



132 OPINIONS OF THE ATTORNEY-GENERAL. 

I note your statement that the People's Coal Company con 
tends that 14,600 B. T. U. is the figure from which the per 
centage should be figured. That this construction is untenable 
is clearly shown by the specifications, at page 1, under th( 
heading "Causes for Rejection," and by the typewritten con 
tract, the language used in the contract being identical witi 
that used in the specifications, and being as follows: "Coali 
containing less than 14,600 B. T. U. shall be subject to re 
jection." This evidently means that coal having 14,600 B. T. U 
or more may not be rejected but must be accepted, while coa 
that runs below that standard may, at the discretion of th^ 
trustees, be rejected; in other words, the language last abov* 
quoted establishes for the purpose of this contract the lin< 
above which coal must be accepted, even though at a reduce* 
price, and below which coal may be actually rejected, and doe 
not and was not intended to fix the basis upon which the peii 
centage for reduction in price is to be computed. 

Your third question is: "Under the heading of * Sampling i 
are these words: 'Such a sample will be taken until the totg( 
quantity amounts to about 1,000 pounds, and shall represcDi 
not more than 500 tons of coal.' If the sample amounts to th 
required number of pounds, may we not penalize, if necessari 
to exact penalties, on lesser quantities than 500 tons?" 

The language of the contract bearing directly upon the poini 
to which your question is addressed is, " Such a sample will b 
taken until the total quantity amounts to about 1,000 pound; 
and shall represent not more than 500 tons of coal." Th^ 
only limitation upon the quantity to be tested is that it sha 
not represent more than 500 tons. I am of the opinion tha 
if the sample amounts to the required number of pounds yo 
may test any quantity of coal delivered up to 500 tons, anc 
if the coal thus tested is found to be below the standard fixe 
by the contract, may exact such penalties as the contra(' 
provides. 

I am also requested by H. Louis Stick, M.D., superintender^ 
of the Worcester State Asylum, to advise upon which of th 
following bases the decreases of price should be computed: — 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 133 

1. One per cent, of price decrease for every 1 per cent, or major fraction 
ereof of deficiency of B. T. U. 

2. One per cent, for every full 1 per cent, of deficiencj^ 

3. Exactly the same per cent., including fractions of price decrease, as 
ere is deficiency. 

It is my opinion that such reduction should be computed in 
cordance with the third suggestion; that is, the rate per cent. 

decrease in price should be precisely the same, including 
ictions' of 1 per cent., as the rate per cent, of deficiency in 

T. U., after allowing the 2 per cent, reduction provided for 
; that part of the contract above quoted. 



Civil Sekvice — Age Limit. 

der St. 1908, c. 375, § 1, a person above the age of fifty years is not eligible for 
appointment as inspector of factories and public buildings. 

You ask my opinion upon the following question: "Is a xothe 
1 m, not a veteran, who is above the age of fifty years and not commission. 
4 lerwise disqualified, eligible for appointment as an inspector February 9. 
< 



factories and public buildings as a member of the inspection 
1 partment of the District Police if he was placed on the eligible 
1 : by the Civil Service Commission before he was above the 
i. I of fifty years?" 

Section 1 of chapter 375 of the Acts of 1908 provides that — 

V person who is not above the age of fifty years, if otherwise qualified, 
8 11 be eligible for appointment as an inspector of factories and public 
t Idings, as a member of the inspection department of the district police. 

1 is statute is still in force and does not relate to the time 
V en a person passes a civil service examination nor to the time 
c going on the eligible list, but to the age of the person at the 
t le of appointment. 

am of the opinion that this statute makes persons above 
t: age of fifty years ineligible for appointment to the position 
©inspector of factories and public buildings and that the rule 
isiot afi'ected by the date of the examination for appointment. 



134 



OPINIONS OF THE ATTORNEY-GENERAL. 



Bureau of Statistics — Cities and Towns - 
Emergency Appropriations. 



Debt Limit — 



To the 

Director of the 
Bureau of 
Statistics. 

1914 
February 11. 



Under St. 1912, c. 75, § 1, it is the duty of the Director of the Bureau of Statistics 
to determine whether certain appropriations of cities or towns are emergency 
appropriations within the provisions of St. 1913, c. 719, § 5, cl. 15. 

The town of Chelmsford having voted "that the town borrow 
the sum of $1,500 on a promissory note for that amount to be 
signed in its name and behalf by the town treasurer, payable 
in three installments of $500 each in one, two and three year; 
from date thereof, with interest at a rate not exceeding 5 pei 
cent, per annum, payable semiannually, such note to be counter 
signed by the selectmen, and the proceeds used to pay for th( 
purchase of fire hose and equipment of same for the Chelmsfon 
fire department, to be used by the town for fire purposes, am 
that the ownership will be and remain in the name of the towi 
of Chelmsford, and that said money is to be expended for th 
town by a committee of three, consisting of the present chief o 
the Chelmsford Center fire department, one member of th 
Chelmsford Center water board, to be named by said board 
and one other to be named by said chief and said member o 
the water board," and the treasurer of that town having for 
warded to you for certification a promissory note of the tow: 
drawn in conformity with this vote, you ask my opinion as t 
whether a loan of this character may properly be construed a 
coming within the authority of clause 15 of section 5 of chapte 
719 of the Acts of 1913. 

So far as it relates to your question, the provision of th 
section referred to is that — 

Cities and towns may incur debt, within the Hmit of indebtedire.' 
prescribed in this act, . . . 

For extreme emergency appropriations involving the health or safet 
of the people or their property. 



1 do not find that the word "emergency" has been given an 
definition in law that takes it out of its ordinary meaning. Th 
word is defined by Webster as "any event or occasional con: 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 135 

Dination of circumstances which calls for immediate action to 
•emedy pressing necessity." The word is further defined as "a 
;udden or unexpected happening; an unforeseen occurrence or 
;ondition." (Century Dictionary.) These definitions are as 
iseful as any I have found in the books. The words used in 
tatutes are usually to be understood in their ordinary sig- 
lification. 

Your authority in the matter of certifying notes of mu- 
licipalities appears to be set forth in section 1 of chapter 45, 
l^cts of 1912, as follows: — 

That said director [referring to the director of the Bureau of Statis- 
icsl shall not certify any note as provided for in this act if it shall appear 
lat the provisions of law relating to municipal indebtedness in the 
laking of said note have not been properly complied with. 

I 

I Whether an extreme emergency exists in any case like that 
ow under consideration is a question of fact for the Director 
f the Bureau of Statistics to determine by investigation. The 
tatutes have, in my opinion, placed upon your office the 
uthority to decide, and the responsibility of deciding, the 
uestion. 



lONSTITUTIONAL LaW — LiBERTY OF THE pRESS — DRUNKENNESS. 

law which forbids the publication of the name of a person arrested for drunken- 
ness would be unconstitutional. 

You have asked my opinion whether House Bill No. 665 To the 

■,•,. „ -I'l •! PI n Committee on 

would mterrere with the right oi the press to free publication." Legal Affairs. 
Section 1, which contains the gist of the proposed legislation, February ii. 
. as follows : — 

No person shall print or pubHsh, or cause or permit to be printed or 
iblished, the name of any person arrested, arraigned, or tried for or con- 
cted of drunkenness, unless such person shall be arrested, arraigned or 
ied for or convicted of some other offense in connection with the offense 

drunkenness. 

The provision of our Constitution relative to freedom of the 
ress is as follows : — 



136 OPINIONS OF THE ATTORNEY-GENERAL. 

The liberty of the press is essential to the security of freedom in a 
state; it ought not, therefore, to be restrained in this commonwealth. 
(Bill of Rights, Art. XVI.) 

Our Supreme Judicial Court has said: — 

The obvious intent of this provision was to prevent the enactment of 
license laws, or other direct restraints upon publication, leaving individuals 
at liberty to print, without the previous permission of any officer of gov- 
ernment, subject to responsibility for the matter printed. Commonwealth 
v. Kneeland, 20 Pick. 206, 219. 

In other words, there can be no censorship of news, even by 
general laws. The intention of that article of the Bill of Rights 
was to preserve the common-law rights of the press as they 
then existed from interference by legislation or injunction in 
the future. Cooley, Constitutional Limitations, 6th ed., pages 
512, 513. 

There is a fundamental principle of common law that the 
publication of legal proceedings is privileged. 

"Though the publication of such proceedings may be to the disad- 
vantage of the particular individual concerned, yet it is of vast importance 
to the public that the proceedings of courts of justice should be universally 
known. The general advantage to the country in having these proceed- 
ings made public, more than counterbalances the inconveniences to the 
private persons whose conduct may be the subject of such pro- 
ceedings." . . . 

The chief advantage to the countrj^ which we can discern, and that 
which we understand to be intended by the foregoing passage, is the 
security which pubUcity gives for the proper administration of justice. 
... It is desirable that the trial of causes should take place under the 
public eye, . . . because it is of the highest moment that those who 
administer justice should always act under the sense of public respon- 
sibility, and that every citizen should be able to satisfy himself with his 
own eyes as to the mode in which a public duty is performed. Cowley 
v. Pulsifer, 137 Mass. 392, 394. 

This common-law right to publish legal proceedings is pro- 
tected by the constitutional provision above quoted. 

But under the police power the Legislature may pass "statutes 
required to protect the public morals or general welfare of the 
people" without infringing on this right. S Cyc. 892. 



1914 
February 11. 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 137 

However, it is difficult to see how the bill in question would 
all within that class of statutes. It is therefore my opinion 
hat the proposed legislation, if enacted, would be unconsti- 
utional. ^_ 

Labor — Twenty-four Hours' Rest in Seven Days. 

is unlawful to permit the taking of inventories by employees during the twenty- 
four hour rest in seven consecutive days period required to be given to 
them under the provisions of St. 1913, c. 619. 

If I understand your letter of Feb. 6, 1914, you desire an TotheCom- 

... 1 • fV' 1 (• 1 1 • • missioner of 

pinion irom this omce upon the rollowmg question : — Labor 

Are employers of labor in manufacturing estabHshments required by 
w to give to persons in their employ who work regularly six da3's in a 
eek twenty-four consecutive hours of rest, or may emploj^ees who have 
orked regularly the six working days of the week be required to assist 

taking an inventory on Sunday? 

The law in regard to this question is contained in chapter 
19 of the Acts of 1913, which provides as follows: — 

Section 1. Every employer of labor, whether a person, partnership 
corporation, engaged in carrying on any manufacturing or mercantile 
tablishment in this commonwealth as hereinafter defined, shall allow 
ery person, except those specified in section two, employed in such 
anufacturing or mercantile estabhshment at least twenty-four con- 
cutive hours of rest in every seven consecutive days. No employer 
all operate any such manufacturing or mercantile establishment on 
inday, unless he shall have comphed with the provisions of section 
ree; but this act shall not authorize any work on Sunday not now 
ithorized by law. 

Section 2. This act shall not apply to (a) janitors; (6) watchmen; 
) emploj^ees whose duties include no work on Sunday other than (1) 
tting sponges in bakeries; (2) caring for live animals; (3) maintaining 
es; (4) caring for machinery; (5) employees engaged in the prepara- 
)n, printing, publication, sale or delivery of newspapers; (6) any labor 
lied for by an emergency that could not reasonably have been 
ticipated. 

Your question is confined to manufacturing establishments, 
lie term "manufacturing establishments" is defined by St. 
•09, c. 514, § 17, as "any premises, room or place used for 



138 



OPINIONS OF THE ATTORNEY-GENERAL. 



the purpose of making, altering, repairing, ornamenting, finish- 
ing or adapting for sale any article or part of an article." 

By section 5 of chapter 619 of the Acts of 1913 it is provided 
that — 

In this act "manufacturing estabhshments " and "mercantile estab- 
lishments" shall have the meaning defined in section seventeen of chapter 
five hundred and fourteen of the acts of the year nineteen hundred and 
nine, except that neither of said terms shall be held to include establish- 
ments used for the manufacture or distribution of gas, electricity, milk or 
water, hotels, restaurants, drug stores, livery stables, or garages. 

I assume that in using the term "manufacturing establish- 
ments" you refer to such establishments as are within this defi- 
nition and are not within the exceptions above mentioned. 

The language of the statute is too clear to admit of a possible 
misunderstanding: "every employer of labor, . . . engaged in 
carrying on any manufacturing or mercantile establishment in 
this commonwealth as hereinafter defined, shall allow every 
person, except those specified in section two, employed in such 
manufacturing or mercantile establishment at least twenty-four 
consecutive hours of rest in every seven consecutive days." I 
do not know how your question can be more clearly answered. 
The language is not ambiguous. 

No one regards the v/ork of taking an inventory as rest, nor 
can the taking of an inventory in the ordinary course of busi- 
ness be regarded as "labor called for by an emergency that 
could not reasonably have been anticipated," within the pro- 
visions of section 2 of chapter 619, above quoted. 



To the 

Committee on 
Legal Affairs. 

1914 
February 13. 



Constitutional Law — Newspapers. 

A law to prohibit contracts by publishers appointing local sole agents for the sale 
of periodicals would be unconstitutional. 

I am in receipt of your inquiry of February 12 relative to 
the constitutionality of House Bill No. 229, entitled "An Ad 
relative to the sale of newspapers and periodicals." The 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 139 

purpose of this act appears to be to prohibit contracts by pub- 
lishers appointing local sole agents for the sale of periodicals. 

The Constitution of Massachusetts enumerates among the 
natural, inalienable rights of men the right "of acquiring, 
oossessing, and protecting property." Bill of Rights, Art. I. 

The Constitution of the United States protects "life, liberty 
md property." U. S. Const. Amendments, Arts. V. and XIV. 

These provisions of our State and Federal Constitutions pro- 
ect freedom of contract. As our Supreme Judicial Court has 
•xpressed it, " the right to acquire, possess and protect property 
ncludes the right to make reasonable contracts." Common- 
cealth V. Perry, 155 Mass. 117, 121. 

These rights, however, are subject to limitations, arising under the 
I roper exercise of the poUce power. . . . The nature of the police power 
nd its extent, as applied to conceivable cases, cannot easily be stated 
ith exactness. It includes the right to legislate in the interest of the 
ublic health, the public safety and the public morals. ... If we are 
) include in the definition, as many judges have done, the right to legis- 
i,te for the public welfare, this term should be defined with some strictness, 
) as not to include everj^thing that might be enacted on grounds of mere 
tpediency. Commonwealth v. Strauss, 191 Mass. 545, 550. 

It is difficult to see how the proposed bill falls within the 
olice power. The practice which it prohibits is not contrary 
3 public policy as laid down in the past by the primary tri- 
unal of public policy, to wit, the Legislature. The laws pro- 
ibiting contracts which bind a buyer to buy exclusively of the 
slier contain provisos expressly excepting contracts of the sort 
imed at in the proposed bill. See the following quotations: — 

But the provisions of this section shall not prohibit the appointment of 
;ents or sole agents for the sale of, nor the making of contracts for the 
■.elusive sale of, goods, wares or merchandise. (R. L., c. 56, § 1.) 
Provided, that nothing in this act shall be construed to prohibit the 
)pointment of agents or sole agents to sell or lease machinerj^, tools, 
iplements or appliances. (St. 1907, c. 469, § 1.) 

The Supreme Judicial Court, in holding one of these statutes 
)nstitutional, laid stress on the fact that the statute does not 



140 



OPINIONS OF THE ATTORNEY-GENERAL. 



prohibit the appointment of sole agents and that it allows 
contracts for the exclusive sale of goods. Commonwealth v. 
Strauss, supra, p. 551. 

There is nothing in the nature of periodicals to distinguish 
them from other goods with respect to the practice aimed at in 
the proposed bill. A general law prohibiting the appointment 
of local sole agents would tend to hamper trade without pro- 
ducing any appreciable general benefit to the citizens of the 
Commonwealth. 

It is my opinion that, if enacted, the proposed bill would be 
unconstitutional. 



To the Board 
of Panama- 
Pacific 



1914 
February 13. 



Labor — Eight-hour Day — Contract Work. 

On public work for the State performed outside the Commonwealth, citizens of 

this State must be given the preference. 
The eight-hour law has no extra-territorial effect. 

Your Board requests my opinion upon the following i 
questions: — 

1. Is there anything in the Massachusetts laws requiring us to employ 
citizens or residents of Massachusetts on contract work of this kind out- 
side of the State? 

2. Is there anything in the Massachusetts laws which requires that 
men employed on this kind of work shall not labor more than a certain 
number of hours a day? 

Taking up your first question, section 21 of chapter 514 of 
the Acts of 1909 is as follows: — 

In the employment of mechanics and laborers in the construction of 
public works by the commonwealth, or by a county, city or town, or by 
persons contracting therewith, preference shall be given to citizens of the 
commonwealth, and, if they cannot be obtained in sufficient numbers, 
then to citizens of the United States; and every contract for such works 
shall contain a provision to this effect. Any contractor who knowingly 
and wilfully violates the provisions of this section shall be punished by a 
fine of not more than one hundred dollars for each offence. 



This section clearly requires that in the construction of 
public works by the Commonwealth preference be given (1) to 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 141 

itizens of this Commonwealth, and (2) to citizens of the United 
Itates. While it is probable that in the enactment of this 
tatiite the Legislature had in contemplation only public works 
nthin the Commonwealth, still, it seems to me that a building 
if the kind to be erected by your Board in San Francisco may 
Iso be considered a public work constructed by the Common- 
realth, and I am of the opinion that a contract made by your 
Joard for the construction of such building should contain the 
lause provided for in the section of the statute above quoted, 
t should not be understood, however, that such a provision in 
he contract will obligate the contractor to transport men from 
^lassachusetts to San Francisco, but that it will require the 
■ontractor, whenever a citizen of this Commonwealth desires 

work at the same terms upon which other men are employed 
>y the contractor in the kind of work applied for, to give such 
itizen the preference; that is, generally speaking, that other 
hings being equal, a citizen of this Commonwealth must be 
iven work in preference to anybody else, and failing to find a 
ufiicient number of citizens of Massachusetts to do the work 

1 hand, the contractor must give a like preference to citizens 
f the United States. 

Taking up your second question, I find that sections 1 and 2 
f chapter 494 of the Acts of 1911, being the eight-hour law of 
his Commonwealth, provide as follows: — 

Section 1. The service of all laborers, workmen and mechanics, now 
r hereafter employed by the commonwealth or bj^ any county therein 
r by any city or town wliich has accepted the provisions of section twenty 
i chapter one hundred and six of the Revised Laws, or of section forty- 
vo of chapter five hundred and fourteen of the acts of the year nineteen 
andred and nine, or by any contractor or sub-contractor for or upon any 
Liblic works of the commonwealth or of any county therein or of any 
ich city or town, is hereby restricted to eight hours in any one calendar 
iy, and it shall be unlawful for any officer of the commonwealth or of 
ly county therein, or of any such city or town, or for any such con- 
actor or sub-contractor or other person whose duty it shall be to em- 
oy, direct or control the service of such laborers, workmen or mechanics 
' require or permit any such laborer, workman or mechanic to work more 
lan eight hours in any one calendar day, except in cases of extraordinary 
aergency. Danger to property, life, public safety or public health only 



142 OPINIONS OF THE ATTORNEY-GENERAL. 

shall be considered cases of extraordinary emergency within the meaning 
of this section. 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 to obstruct or prevent the obtaining of 
emplo3'ment or to refrain from employing in the future shall each be con- 
sidered to be "requiring" within the meaning of this section. Engineers 
shall be regarded as mechanics within the meaning of this act. 

Section 2. Every contract, excluding contracts for the purchase of 
material or supplies, to which the commonwealth or any county therein 
or any city or town which has accepted the provisions of section twenty 
of chapter one hundred and six of the Revised Laws, is a party which 
may involve the employment of laborers, workmen or mechanics shall 
contain a stipulation that no laborer, workman or mechanic working 
within this commonwealth, 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 contractor shall be requested or required to work 
more than eight hours in any one calendar day, and every such contract 
which does not contain this stipulation shall be null and void. 

The laws of a State have no extra-territorial effect. Thei 
labor laws of California will govern as to the hours of labor that 
may be required of men in that State. The Legislature evi- 
dently considered this phase of the question in enacting sections 
1 and 2 of chapter 494 of the Acts of 1911 above quoted. 
Section 2 expressly provides that "every contract, excluding 
contracts for the purchase of material or supplies, to which the 
commonwealth ... is a party which may involve the employ- 
ment of laborers, workmen or mechanics shall contain a 
stipulation that no laborer, workman or mechanic working 
within this commonwealth, . . . shall be required," etc., clearly 
limiting the provisions of this section to work done or to be 
done in this Commonwealth. If your Board contracts to have 
any work done in this Commonwealth, of course all the statutes 
above quoted will certainly apply to such contracts. 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 143 



JoARD OF Registration in Pharmacy — Registered Phar- 
macists — Hospitals. 

'nder St. 1913, c. 705, the Board of Registration in Pharmacy should pass on 
each application for a permit to do a drug business, and may not adopt a set 
of rules to govern generally. 

[ospitals and dispensaries need not have registered pharmacists when in charge of 
competent physicians. 

You request my opinion upon two questions: — Jf°Re^Sratbn 

in Pharmacy. 

1. "Whether, under chapter 705 of the Acts of 1913, the Board of Regis- I9i4 



ation in Pharmacy has the right to adopt rules specifying what kind of 
3rsons, firms and corporations they may deem qualified to conduct a 
"ug store; and if they do not deem a person, firm or corporation qualified 
t conduct a drug store can the Board refuse the permit designated in 
id act? 

2. Does chapter 76 of the Revised Laws make it necessary for hospitals 
id dispensaries to have registered pharmacists in charge of their drug 
spensing departments? 

Taking up your second question first, in my opinion chapter 
5 of the Revised Laws does not make it necessary for hospitals 
id dispensaries to have registered pharmacists in charge of 
leir drug-dispensing departments. The purpose of the law 
as to place the dispensing of drugs and medicines in the hands 
" persons skilled in that kind of business, so that it might at 
1 times be intelligently and safely done. In dispensaries and 
Dspitals this part of the business is always in the hands of a 
)mpetent physician and the need of a registered pharmacist 
)es not exist. 

Referring to your first question, section 3 of chapter 705 of 
le Acts of 1913 reads as follows: — 

The board of registration in pharmacy shall, upon application, issue a 

rmit to keep open a store for the transaction of the retail drug business 

such persons, firms and corporations as the board may deem qualified 

conduct such a store. The application for such a permit shall be made 

such manner and in such form as the board shall determine. A permit 

ued as herein provided shall be exposed in a conspicuous place in the 

! )re for which the permit is issued and shall expire on the first day of 

• nuary following the date of its issue. The fee for the permit shall be 

< e dollar. 



February 14. 



144 



OPINIONS OF THE ATTORNEY-GENERAL. 



Section 4 of the same chapter provides that — 

No such permit shall be issued for a corporation to keep open a store 
for the transaction of the retail drug business, unless it shall appear to 
the satisfaction of the said board that the management of the drug busi- 
ness in such store is in the hands of a registered pharmacist. 

The two sections above quoted place upon the Board of 
Registration in . Pharmacy the duty of passing upon each ap- 
plication for a permit. The statute indicates that the Board 
may establish rules as to the form and manner in which ap- 
plication for a permit shall be made. As a practical matter it 
would be very difficult to establish rules which would determine 
whether an applicant should have a permit or not. It is my 
opinion that the statute requires the Board to act upon each 
application and does not authorize the Board to make a set of 
rules to stand in the place of its judgment. 

You further ask: "Can the Board refuse the permit des- 
ignated in said act?" To that I have to say that in my 
opinion it is the duty of the Board to refuse a permit to all 
persons, firms or corporations who in the judgment of the 
Board are not qualified to conduct such a store. 



To the 

Insurance 

Commissioner. 

1914 
February 16. 



Insurance Commissioner — Insurance Companies — In- 
vestments. 

The words "funded indebtedness" as used in St. 1907, c. 576, § 37, cl. 3, are not 
synonymous with "contingent HabiHty," and investments by insurance 
companies in railroad mortgage bonds are lawful where the capital stock o: 
such railroad corporation equals at least one-third of its fimded indebtedness 

You request my opinion as to the right of domestic insurance 
companies to invest in the mortgage bonds of the Michigar 
Central Railroad Company under conditions which you state 
as follows: "The last published balance sheet of said railroac 
showed capital stock of $18,738,000 and funded debt, including 
debentures and equipment certificates, of $43,316,174. Thi: 
latter figure, however, does not include $14,000,000 Detroi 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 145 

River Tunnel Company first mortgage bonds, which are guar- 
inteed principal and interest by the Michigan Central Railroad, 
lor does this amount appear in the balance sheet of the Michi- 
gan Central Railroad." You further state that in practical 
>flFect these bonds of the Detroit River Tunnel Company are an 
)bligation of the Michigan Central Railroad Company, since 
hat is the only company that operates the tunnel, and all 
)ayments of interest and principal must come eventually from 
t. I am further informed by your office that the property of 
he Detroit River Tunnel Company has been leased to the c 

lichigan Central Railroad Company for nine hundred and 
inety-nine years. You do not state, however, and I do not 
now, whether the Detroit River Tunnel Company still keeps 
p its corporate existence or has surrendered its charter. I 
I ssume that this company is still in existence, that it pursues 
s rights under the lease and collects and receives its rentals 
•om the Michigan Central Railroad Company, and that it is a 
3al corporate entity. 

Clause 3 of section 37 of chapter 576 of the Acts of 1907, 
acted in your letter, provides that domestic insurance com- 
anies may under certain circumstances invest — 

In the bonds or notes of any railroad or street railway corporation in- 

trporated or located whollj'^ or in part in Massachusetts, or in the mort- 

j ige bonds of any railroad corporation located whoUy or in part in any 

I ate of the United States whose capital stock equals at least one third of 

5 funded indebtedness, which has paid regularly for the five years next 

•eceding the date of such investment all interest charges on said funded 

debtedness, and which has paid for such period regularly dividends of 

least four per cent per annum upon all its issues of capital stock, or in 

e mortgage bonds of any railroad, railway or terminal corporation 

lich have been, both as to principal and interest, assumed or guaranteed 

' any such railroad or railway corporation. 

This leads, first, to the inquiry. What is funded indebtedness? 
be word "funded" has been defined as, — 

Existing in the form of bonds bearing regular interest; constituting or 
1 "ming part of the permanent debt of a government or corporation at a 
1 ed rate of interest. (Century Dictionary.) 



14G 



OPINIONS OF THE ATTORNEY-GENERAL. 



The term "funded debt," "even in common parlance, is 
never made use of to describe an ordinary debt growing out of 
a transaction with one individual and represented by a single 
instrument. It is essential to the idea of a funded debt, even 
under the broadest use of the term, that the debt should be 
divided into three parts or shares, represented by different 
instruments, so that such parts or shares may be readily 
transferable." Ketchum v. City of Buffalo, 14 N. Y. 356. 

Taking these definitions of the word "funded" in connection 
with the word "indebtedness," it becomes evident that funded 
indebtedness is a very different thing from contingent liability, 
In the question you submit there appears to be nothing morf 
than a contingent liability of the Michigan Central Railroac 
Company so far as the bonds of the Detroit River Tunne 
Company are concerned; that is, the railroad company wil 
have to pay if the tunnel company fails to meet its obligation 
So far as we are informed, the Detroit River Tunnel Company 
is still in existence, and the rentals reserved to it in the leasi 
of its property are regularly paid, and may be supposed to b' 
sufficient to provide for the payment of its liabilities. It i 
my opinion, upon the information at hand, that the bonds o 
the Detroit River Tunnel Company are not a part of th 
funded indebtedness of the Michigan Central Railroad Com 
pany and that, within the limitations fixed by our statutes 
insurance companies may invest in the mortgage bonds of th 
Michigan Central Railroad Company. 



State Boaed of Health — Local Boards of Health - 
Inspectors of Slaughtering. 

A local board of health cannot lawfully nominate one of its own members as i 
spector of slaughtering, and the State Board of Health is within its rights 
refusing to approve a nomination so made. 



To the 
State Board 

of Health. munication to this department under date of Oct. 28, 191 

February 17. 



You ask my opinion upon certain facts which in your con 
unication to this d 
you stated as follows: 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 147 

In accordance with chapters 297 and 534 of the Acts of 1911, the board 

health of a certain town has nominated as inspector of slaughtering 
le of its own members. In other words, two members of the local board 

health have voted for the third to fill this office as inspector of 

lughtering. In this position, the nominee has been a party to his own 

pointment to a position in which he will have to pass upon the char- 

. ter of his own work and upon the amount of the compensation which 

is to derive from it. 

The question at issue is, can such an appointment be considered legal 

this Board? 

The statute conferring authority upon your Board in regard 
■ the approval of nominations of inspectors of slaughtering is 
! ition 2 of chapter 534 of the Acts of 1911, which provides as 
1 lows : — 

For the purposes of this act inspectors shall be appointed, shall be 
< Qpensated, and may be removed in accordance with the provisions of 
] ' relating to inspectors of animals. The first appointments under this 
{ shall be made within thirty days after its passage. 

By this statute the duties of the State Board of Health in 
1 pect to inspectors of slaughtering are the same as those 
i posed by law upon the chief of the Cattle Bureau of the 

V ite Board of Agriculture in respect to inspectors of animals. 
The duties of the chief of the Cattle Bureau in this respect 

a set forth in chapter 143 of the Acts of 1911, section 1 of 

V ieh reads as follows : — 

?he mayor and aldermen in cities, except Boston, and the selectmen in 
ti us shall annually, in March, nominate one or more inspectors of ani- 
n s, and before the first day of April shall send to the chief of the cattle 
b eau of the state board of agriculture the name, address and occupation 
o: "ach nominee. Such nominee shall not be appointed until approved 
b. the chief of the cattle bureau of the state board of agriculture. The 
al -esaid officials of cities and towns may remove any inspector, and 
si 1 thereupon immediately nominate another in his place and send 
n< ce thereof as prescribed above. 

^he section last quoted clearly provided that no nominee 
C(ld be appointed inspector of animals until approved by the 
cl?f of the Cattle Bureau, and I am therefore of the opinion 



148 OPINIONS OF THE ATTORNEY-GENERAL. 

that a nominee for the position of inspector of slaughtering 
cannot be appointed until he is approved by your Board. I 
am aware that since the enactment of chapter 143 the office ol 
chief of the Cattle Bureau has been abolished and another office 
created to which the duties of the chief of the Cattle Bureai 
and the Board of Cattle Commissioners have been transferred 
but this change cannot make any difference as to your authority 
As the law now stands I am of the opinion that the questioi 
of approving or refusing to approve the appointment of an in 
spector of slaughtering is one that rests entirely within tb 
sound discretion and judgment of your Board. 

You state, however, that the claim is made that under th 
statute " the only duty which the State Board of Health ha 
to perform in relation to the approval or disapproval of thi 
appointment of local inspectors of slaughtering is to pass upoj 
their qualifications to perform the duties of that office; tha< 
when the State Board of Health is satisfied that any nomine* 
is by training and experience qualified to fulfil the duties of th 
office it has exhausted its power in the matter, and has d 
right to question the legality of the act of the local board ( 
health in nominating one of its own members." I do not thin 
the duties of the State Board of Health in respect to this clas^ 
of appointments are confined within such narrow limits; bi 
if it is so, the element of self-interest in the appointee gof 
directly to the question of his qualification properly to dis 
charge the duties of the position. In the case of Gaw v. Ashki 
195 Mass. 173, where the question was as to whether under 
city ordinance the board of health of the city of New Bedfor 
could lawfully and properly elect one of themselves to the ofl5( 
of quarantine physician, the Supreme Judicial Court said : — 

We are of opinion that thej^ could not. The ordinance contemplat' 
the existence of a relation between the physician and the board whi( 
requires that he shall not be a member of it. He is to make frequei 
reports to the board, and from time to time is to make recommendation 
His charges to the sick are to be only such as the board approves. H 
personal interest in these charges is inconsistent with the proper pe 
formance of his duty, as a member of the board of health, to fix the 
amount, in the interest of the public and for the protection of his patient 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 149 

There is very ancient and high authority for the assertion 
lat a man cannot serve two masters. 

It is my opinion that the action of the State Board of Health 
( I refusing to approve nominations for the office of inspector of 
aughtering, on the ground that the nominees were members 
" the local board of health, was legally correct. 



UREAU OF Statistics — Certification of Town Notes. 

ider St. 1913, c. 719, the Director of the Bureau of Statistics may certify notes 
of a fire district where the district has complied with the spirit and purpose 
of the statute, even though statutory language was not followed in the vote 
providing for such notes. 

You request an opinion from this department upon the To the 
llowing question: Ought the Director of the Bureau of Sta- the Bureau 

. . of Statistics. 

5tics certifv under the provisions of chapter 719 of the Acts ^ , i^i* _ 

'^ i i February 19. 

1913 a promissory note of Greenfield Fire District No. 1, 
sued in accordance with an article in the warrant for a meet- 
g of the voters of said district and with a vote of the meeting 
Id under and by virtue of said warrant, but which does not 
pressly provide that the debt incurred "shall be made pay- 
'le from the revenue of the financial year in which the same 
to be incurred"? 

You state that the article in the warrant and the vote taken 
ereon are as follows : — 

Article 4. — To see if the district will vote to borrow any sum or sums 
t money appropriated under the foregoing articles. 

Voted, That the district borrow the sum of five thousand dollars 
( ),000), giving a note of the district in payment therefor, signed by the 
t asurer and countersigned by the prudential committee, and payable 
Ivember 1, 1914, with interest not to exceed 4| per cent per annum. 

The statute, St. 1913, c. 719, § 3, provides for temporary 
lins in anticipation of the -revenue of the financial year in 
Mich the debt is incurred and expressly made payable there- 
f'm by such vote. 

t gather from your letter that the note submitted for cer- 



150 OPINIONS OF THE ATTORNEY-GENEKAL. 

tification is drawn in accordance with the vote above set forth; 
that the debt represented by the note is incurred for the only 
purpose for Avhich the fire district is authorized to incur debt, 
and that the only possible way in which it can be paid at 
maturity is from the revenue of the current year. You further 
state that "the note seems to all intents and purposes to be a 
note issued in anticipation of taxes." 

The vote did not follow the precise language of the statute 
and the real question is whether this departure places upon th( 
Director of the Bureau of Statistics the duty of refusing t( 
certify the note issued in pursuance of it. 

In this instance, although the district did not follow ty 
exact words of the statute, it did follow its spirit and purposed 
A very ancient writer has said : — 

It is not the words of the law but the internal sense of it that make! 
the law, and our law, like all others, consists of two parts, namely, c 
body and soul. The letter of the law is the body of the same, and tb 
sense and reason of the law are the soul of the law. . . . And it ofte 
happens that when you know the letter you know not the sense, fcl 
sometimes the sense is more confined and contracted than the letter, an i 
sometimes it is more large and extensive. (2 Plowden, 445.) 

The intention of the Legislature was to compel the municipji 
corporations of the State to adopt the policy of paying as the 
go and to restrain them from incurring any debt except fc 
certain specified purposes. 

Greenfield Fire District No. 1 has in this instance compile 
with the spirit and purpose of the statute. To refuse to certif 
the note in question would put the district to the trouble an 
expense of holding another meeting to pass a vote slightly di 
ferent in words from the vote already passed but of exactll 
the same purpose and intention. 

In such cases as this the rule applies that the spirit an 
reason of the law will prevail over its letter. It is my opinio 
that you may properly and lawfully certify the note in questioi 



i 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 151 



Civil Service — Fire Department — Promotion. 

Jnder St. 1913, c. 487, a call fireman is eligible to appointment as a member of the 
permanent force of firemen, under certain conditions, without being subject 
to civil service rules, but such call fireman cannot legally be promoted to 
the office of captain of such permanent force. 

You ask my opinion upon the following question: May a I?^|*| . 
all fireman be appointed captain in a permanent force of fire- Commissioners, 
nen, under the provisions of chapter 487 of the Acts of 1913? February i9. 

Section 1 of that act provides as follows : — 

Cities and towns which have a call or part call fire department which 
ow is or may hereafter be subject to the civil service rules may, on the 
;commendation of the board of engineers of the fire department or of the 
fficer or board having charge of the fire department, appoint as members 
f the permanent force without civil service examination any persons 
ho have served as call men or part call men for five or more successive 
ears, provided, that such persons are certified by the city or town phy- 
cian to be competent physically for the duty. If there is no city or 
)wn physician, then the said certification shall be made by a physician 
Bsignated for the purpose by the board of engineers or other authority, 
5 aforesaid. 

Prior to the enactment of this statute promotion or transfer 
'om the call to the permanent fire force of a city or town 
ould be made only after an open competitive examination 
Civil Service Rule No. 38, cl. 2), and the promotion, if granted, 
'as to the lowest grade of the permanent force. By section 1 
f chapter 487 of the Acts of 1913, above quoted, five or more 
Liccessive years of service as a call fireman, together with the 
ertificate of the city or town physician or of such other physi- 
ian as may be designated for the purpose by the board of 
Qgineers or other authority, is substituted for the competitive 
xamination provided in that part of Civil Service Rule No. 38 
bove referred to. 

While the question is not entirely free from difficulty, it is 
ly opinion that the Legislature did not intend to make a call 
reman eligible to appointment as captain in the permanent 
)rce, but, subject to the conditions specified in the statute, to 



152 



OPINIONS OF THE ATTORNEY-GENERAL. 



appointment as a member of the permanent fire force; and 
I am also of the opinion that under the provisions of the 
statute referred to a call fireman cannot legally be promoted 
directly to the office of captain in the permanent fire-fighting 
force of a city or town. 

It is perhaps needless to say that after a call fireman be- 
comes a member of the permanent force he is eligible for pro- 
motion like any other member of that force, in accordance with 
the provisions of the Civil Service Rules. 



I 



Commissioners on 
Town Clerks — 



Fisheries and Game — City and 
Custody of Registration Books. 



To the Com- 
missioners on 
Fisheries and 
Game. 

1914 
February 24. 



Books of hunters' certificates of registration should be retained by the respective 
city and town clerks, and the Commissioners on Fisheries and Game havei 
no authority to demand their return. 

You have requested my opinion upon the following question: 
Have the Commissioners on Fisheries and Game authority, 
under chapter 614 of the Acts of 1911, as amended by chapter 
379 of the Acts of 1912, to demand the return to them of 
books of hunters' certificates of registration furnished by the 
commissioners to town and city clerks? 

Section 9 of chapter 614 of the Acts of 1911 provides as 
follows : — 

Everj^ city and town clerk shall report all such registration in books 
kept for that purpose, which books shall be open to public inspection 
during the usual office hours of such clerk, and subject to audit and in- 
spection by the commissioners on fisheries and game, by the state auditor, 
or by their agents, at all times; and said clerk shall, on the first Monday 
of every month, pay to the board of commissioners on fisheries and game 
all money received by him for the said registrations, except the recording 
fees which he is entitled to retain, as provided in section six, together 
with a receipted bill for fees due and received in accordance with section 
six of this act, issued during the month preceding. All remittances shall 
be made by certified check, United States post office money order, express 
money order or lawful monej' of the United States. The board of com- 
missioners on fisheries and game shall, in accordance with the provisions 
of section fifty-six of chapter six of the Re\ised Laws, pay to the treasurer 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 153 

md receiver general all money received by them for the said registrations 
ssued during the previous month, and shall furnish him with a list of the 
lumber and kind of registrations recorded by each city and town clerk 
luring the previous month. 

; This section makes provision that the books in question 

I 'shall be open to public inspection during the usual office 

lOurs of such clerk, and subject to audit and inspection by the 

I •ommissioners on fisheries and game, by the state auditor, or 
' »y their agents, at all times," but does not provide for the 

eturn of the books in question to your commission. The 
tatute apparently intends that the books shall be retained by 
he respective town and city clerks, in whose offices they are 
o be subject to audit by the proper authorities and open to 
)ublic inspection. 

' I am of the opinion that the Commissioners on Fisheries and 
lame have not authority to demand the return of books of 

I I lunters' certificates furnished bv them to town and citv clerks. 



^iviL Service — Planning Board of the City of Boston. 

t. 1913, c. 494, creating planning boards in cities and providing for appointments 
to such boards by the mayors, subject to approval by the council, does not 
repeal St. 1909, c. 486, § 9, requiring action by the Civil Service Commission 
on Boston appointments. 

You ask my opinion upon the following question: "As the xothe 
iw now stands are appointments by the mayor of Boston to Commission. 
' he planning board of that city to be confirmed by the city February 24. 
ouncil or approved by the Civil Service Commission?" The 
uestion is whether chapter 494 of the Acts of 1913 repeals the 
revisions of sections 9 and 10 of chapter 486 of the Acts of 
909 in so far as they relate to appointments to a city planning 
card of the city of Boston. 

Section 9 of chapter 486 of the Acts of 1909, being the 
barter of the city of Boston, is as follows: — 

All heads of departments and members of municipal boards, including 
le board of street commissioners, as their present terms of office expire 



154 OPINIONS OF THE ATTORNEY-GENERAL. 

(but excluding the school committee and those officials by law appointed 
by the governor), shall be appointed by the mayor without confirmation 
by the city council. They shall be recognized experts in such work as 
may devolve upon the incumbents of said offices, or persons specially 
fitted by education, training or experience to perform the same, and 
(except the election commissioners, who shall remain subject to the 
provisions of existing laws) shall be appointed without regard to party 
affiliation or to residence at the time of appointment except as herein- 
after provided. 

Section 10 of the same chapter, after making provision for 
certain forms of certificates of appointment, provides that the 
certificate (meaning the certificate of appointment above 
referred to) — 

shall be filed with the city clerk, who shall thereupon forward a certified 
copy to the civil service commission. The commission shall immediately 
make a careful inquiry into the qualifications of the nominee under such 
rules as they may, with the consent of the governor and council, estab- 
lish, and, if they conclude that he is a competent person with the requisite 
qualifications, they shall file with the city clerk a certificate signed by at 
least a majority of the commission that they have made a careful inquiry 
into the qualifications of the appointee, and that in their opinion he is a 
recognized expert, or that he is qualified by education, training or ex- 
perience for said office, as the case may be, and that they approve the 
appointment. 

This section further provides that upon filing of the certificate 
of approval the appointment shall become operative. Section 
10 has been amended by chapter 550 of the Acts of 1912, but 
does not in any way aft'ect the provisions above quoted. 

Chapter 494 of the Acts of 1913 provides that every town 
having a population of more than ten thousand at the last 
preceding national or state census and every city in the Com- 
monwealth shall create a board to be known as the planning 
board. It further provides that — 

In cities, the said board shall be appointed by the mayor, subject to 
confirmation by the council, and in cities under a commission form of 
government, so called, the members of the board shall be appointed by 
the governing body of the city. 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 155 

It has been stated as a general rule of law governing such 
:ases as are suggested by your question that — 

When the provisions of a general law, applicable to the entire State, 
ire repugnant to the provisions of a previously enacted special law , 
ipplicable in a particular locaUty only, the passage of such general law 
Ices not operate to modify or repeal the special law, either in whole or 
n part, unless such modification or repeal is provided for by express 
vords, or arises by necessary implication. (Cyc, Vol. 36, p. 1090.) 

The point involved was considered by the Supreme Judicial 
Ilourt of this Commonwealth in the case of Brown v, Lowell, 
I Met. 172, and the court, speaking by Chief Justice Shaw, 
aid : — 

That a subsequent legislative act repeals all prior acts repugnant to it, 
5 a principle which results from the unlimited nature of legislative power, 
'he last expression of the legislative will must be carried into effect, as 
he law of the land; and if, on its true construction, it is directly repug- 
ant to any prior act, it necessarily annuls it, because both cannot exist 
ogether. But, to have this effect, it must appear that the legislative 
'^ill was so exercised ; or, in other words, that it was the intention of the 
iBgislature, that the subsequent act should so operate, notwithstanding 
ny repugnancy to former acts. It may happen that acts of special 
'gislation may be made in regard to a place, growing out of its peculiar 
^ants, condition, and circumstances; as formerly various acts were 
assed in relation to the town of Boston. Afterwards, a general act may 
e passed, having some of the same purposes in view, extending them 
enerally to all the towns of the Commonwealth, with provisions adapted 
3 the condition of all towns. It would be a question depending upon a 
areful comparison of the two acts, and the objects intended to be accom- 
lished, whether the general act must be deemed an implied repeal of the 
pecial prior act. In general, we should think it would require pretty 
trong terms in the general act, showing that it was intended to supersede 
fie special acts, in order to hold it to be such a repeal. 

This language was referred to and quoted with approval in 
'opeland v. Springfield, 166 Mass. 498. 

In the case last cited the question was whether a provision 
f the charter of the city of Springfield, conferring authority 
pon the city to cause sidewalks to be made and repaired and 
assess the whole expense upon the abutters, was repealed by 
lie provisions of chapter 444 of the Acts of 1895, to the effect 



156 OPINIONS OF THE ATTORNEY-GENERAL. 

that the board having power to estabhsh sidewalks in any city 
may construct or complete walks in any street where public 
convenience requires it and may assess upon abutters not more 
than one-half of the expense. 

The court in that case held that the special provision of the 
city charter had not been repealed by the later enactment, and 
cited many authorities. 

If the later enactment is evidently intended to supersede all 
prior acts of the matter in hand, and to comprise in itself the 
sole and complete system of legislation on that subject, it must, 
as the last expression of the legislative will, prevail. 

Turning to an examination and comparison of the two 
statutes in question, we find that the object and purpose of 
chapter 494 of the Acts of 1913 are to provide that cities and 
towns shall have a planning board, and that the matter of 
confirmation of appointments to such boards is a mere detail 
or adjunct to the general plan; while the object, purpose and 
intent of sections 9 and 10 of chapter 486 of the Acts of 1909, 
so far as their purpose can be gathered from their language, 
were to establish such a system as would insure to the city of 
Boston expert service from the heads of all city departments 
and from the members of all municipal boards, and to this end 
a special system for an examination as to the qualifications of 
appointees and approval of appointments to those leading posi- 
tions in the government of the city by the Civil Service Com- 
mission was provided for. The purpose, intent and object that 
prompted the two enactments in question were so widely dif- 
ferent that I cannot believe it to have been the intention of 
the Legislature of 1913, in the enactment under consideration, 
to make any change in the method of appointment and con- 
firmation to any municipal board of the city of Boston. 

It is my opinion that appointments to the planning board 
of the city of Boston are within the provisions of sections 9 
and 10 of chapter 486 of the Acts of 1909 and that your Board 
has the same duty and authority as to such appointments that 
it has in respect to appointments to other municipal boards of 
that city. 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 157 



Liquor Law — Licenses rendered Void, when — Convic- 
tion — Appeal. 

The pro\'isions of R. L., c. 75, § 107, rendering a liquor license void upon con- 
viction of the licensee, do not apply while an appeal on conviction in a lower 
court is pending. 

You ask my opinion as to whether a Hcense granted under Tothe 
the provisions of section ^00 of chapter 75 of the Revised Laws Health, 
is rendered void by the conviction of the person holding the Fe bruary 25. 
hcense in a poHce or district court of a violation of section 106 
of said chapter, an appeal from said conviction having been 
taken which is still pending. 

Section 107 of chapter 75 of the Revised Laws provides as 
follows : — 

A conviction under the provisions of the preceding section of any 
person licensed under the provisions of section one hundred shall render 
his license void, and no new hcense shall be granted to him for the 
balance of the term. 

The word "conviction" as used in this section is evidently 
used as implying a final judgment and sentence of the court 
upon a verdict or confession of guilt. Under the provisions of 
the statute last above quoted, the effect of a conviction of the 
kind therein named is to deprive the person convicted of a 
valuable right without an opportunity for further trial or in- 
vestigation. It is very readily apparent that the trial in the 
appellate court may result in establishing the innocence of the 
liecused, in which case the license ought not to become void 
3ut to remain in force. It is my opinion that in the circum- 
stances disclosed bj^ your inquiry the license in question does 
lot become void while an appeal is pending. 



158 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Com- 
missioner of 
Labor. 

1914 
February 25. 



Labok — Police Officers — Chauffeurs. 

Chauffeurs employed as drivers of a police patrol and receiving pay as such are 
subject to the laws regulating the hours of labor of chauffeurs and not of 
police officers, even though they are special police officers by appointment 
and serve as such without pay. 

I have your letter with inquiry from the chief of poHce in 
Newton, in which he says: — 

I am employing two chauffeurs as drivers of the auto patrol, one of 
whom works from 8 a.m. to 6 p.m., the other from 6 p.m. to 8 a.m. the 
following morning. These men are citizen operators, but are appointed 
special police without pay and draw their salaries as chauffeurs. 

Will you kindly inform me if the fact that they are poUce officers 
makes their employment of over eight hours a day legal, or am I violat- 
ing the labor law? 

The chief of pohce does not state whether the city of Newton 
has accepted the provisions of the eight-hour law, so called. 
I assume, however, that it has done so. As I understand the 
letter of the chief, the two men mentioned are not employed 
as policemen but as chaufi'eurs, they draw no salary as police 
officers but are paid for the work they actually perform, and 
are classified on the pay roll as chauffeurs and not as police 
officers. 

It is my opinion that the hours of labor of these men should 
be governed by the kind of service for which they are actually 
employed and paid, and the fact that they are special police 
officers without pay does not, in my opinion, aft'ect the number 
of hours of labor that shall constitute for them a day's work. 



i 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 159 



loARD OF Education — Transportation of Pupils — " Pre- 
ceding Year" defined. 

'here towns or cities under St. 1913, c. 396, are required to provide transportation 
for high school pupils attending school in other towns or cities, the statute 
is not to be construed as authorizing towns to provide board for such pupils. 

nder this section the words "the preceding year" refer to the fiscal school year 
as used in St. 1913, c. 356. 

You ask for an opinion upon questions that have arisen with To the 

. • (. 1 (> 1 A i> State Board of 

'gard to certain provisions or chapter 396 of the Acts of 1913, Education. 

5 follows : Fe bruary 25. 

1. In some instances, parents whose children are attending high 
hools in other towns or cities than that of their residence are asking 
hool committees to make pa>Taent for the board of these children. Can 
eh a claim be recognized as coming within the term "transportation" 
used in the act? 

2. A statement is desired as to the meaning of the term "the preceding 
ar" as found in lines 18 and 24 of this act. Does the year mean the 
cal year of the to\vn? 

In July, 1914, towns will send to the Board of Education statements 
amounts paid for transportation, under this act, for the school year 
ding June 30, 1914; in such a case, is reimbursement to be based upon 
3 payments from local taxation for schools for the town year closing 
fore July 1, 1914, or for the town year closing before July 1, 1913? 

Replying to your first question, I have to say that in view 
' the statutory rule that "words and phrases shall be con- 
i 'ued according to the common and approved usage of the 
i iguage," it is my opinion that a claim made by reason of 
1 yment for board of children cannot be recognized as coming 
Uhin the term "transportation" as used in the statute above 
1 erred to. 

You have also requested a construction of the phrase "the 
pceding year" in the same statute. 

By another act of 1913, namely, chapter 356, the annual 
r urn by school committees to the State Commissioner of 
I ucation of the amount raised and expended by each town 
f school purposes, although made annually at the close of the 
<■* ool year, refers to the taxes of the last preceding fiscal year. 



160 



OPINIONS OF THE ATTORNEY-GENERAL. 



The statute before me provides, in the case of the araount 
paid for out-of-town high school education, for a return within 
thirty days of the expenditure. But as payment between 
towns is by custom always made at the close of the school 
year, the statutory requirement amounts to a requirement for 
annual returns at the close of each school year. 

The statute before me does not provide for annual reimburse- 
ments or for any form of returns in the case of the amount 
paid for transportation. Nevertheless, I understand that, in 
conformity with the custom as to high school reimbursement 
and the statutory requirement as to all other returns, the 
State Commissioner of Education requires an annual return by 
school years at the close of each school year, and makes an 
annual reimbursement on the basis of such return. 

Thus we have annually at the close of the school year two 
returns, one showing the amount paid for transportation during 
the last school year, the other showing the amount expended 
for the support of pubHc schools during the last fiscal year. 
The most reasonable rule would appear to be to reimburse the 
towns on the basis of the two returns which are due together. 

Considered in connection with the custom, it is my opinion 
that the words "the preceding year," in chapter 396 of the 
Acts of 1913, should be construed as referring to the same year 
as the words "the fiscal year last preceding the date of the 
certificate," in chapter 356. 



To the 
Senate and 
House of Rep- 
resentatives. 

1914 
February 26. 



Constitutional Law — Cities and Towns — Ice. 

A law enacted by the Legislature authorizing cities and towns to cut, store and 
sell ice from reservoirs and ponds owned or controlled by such cities and 
towns would be unconstitutional, and they may not acquire or hold propertj' 
for such purposes. 

You have required my opinion upon the following ques- 
tions: — ■ 

First. — Is it within the constitutional power of the General Court to 
enact a law conferring upon a city or town within the Commonwealth 
the power, acting by its water commissioners, to cut, store and sell ice 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 161 

om reservoirs and ponds owned or controlled by such city or town in 
mnection with its water supply? 

Second. — Is it within the constitutional power of the General Court 
) enact a law conferring upon a city or town within the Commonwealth 
le power to cut ice in the reservoirs and ponds owned or controlled by 
ich city or town, and to store the ice and to sell it at wholesale or retail, 
id to fix and collect rates to be paid therefor, and to acquire by lease or 
irchase and to hold property, lands and easements for said purposes? 
Third. — Is it within the constitutional power of the General Court to 
lact a law conferring upon a city which owns and operates a system for 
pplying its inhabitants with water, acting by its water commissioners, 
e power to cut ice in the reservoirs, ponds and other sources of water 
pply owned and controlled by such city, and to store the ice so cut and 
sell the same at prices fixed by the water commissioners? 

The real question is: May a city be authorized by the Legis- 

ture to cut, store and sell ice from reservoirs, ponds and other 

urces of water supply owned or controlled by such city or 

wn; in other words, may a city or town deal in ice cut and 

irvested from reservoirs or ponds which it owns or controls? 

In recent years it has become more and more urgent to have 

e municipalities, under legislative sanction, construct, main- 

in and operate public utilities, and to regulate the operation 

id to control the rates of charges for commodities furnished 

services rendered to the public. In England and in some of 

e European countries the scope of municipal operations has 

en greatly extended, and these operations are known as 

nunicipal trading." In the United States, however, the 

. nitations and restrictions placed upon legislative authority by 

16 written Constitutions of the respective States have formed 

i obstacle which has prevented the development of municipal 

liding to any degree that even attempts to approach the 

ttent which it has reached in England. (Dillon on Municipal 

(irporations.) 

The test of constitutionality is whether the service proposed 

i a public service. 

[f such a business as is suggested by these questions is to 
I carried on it must be with money raised by taxation, and it 
i settled in this Commonwealth "that the Legislature can 



162 OPINIONS OF THE ATTORNEY-GENERAL. 

authorize a city or town to tax its inhabitants only for public 
purposes." Opinion of the Justices, 155 Mass. 59S. 

Great difficulty has been found in clearly defining a public 
purpose, and in the opinion last cited the learned justices said: — 

It is not easy to determine in every case whether a benefit conferred 
upon many individuals in a community can be called a public service 
within the meaning of the rule that taxes can be laid only for public 

purposes. 

Again, the justices of the Supreme Judicial Court have said: — 

It is impossible to define with entire accuracy all the characteristics 
which distinguish a public service and a public use from services and 
uses that are private. {Opinion of the Justices, 150 Mass. at p. 595.) 

The Legislature of 1892 requested the opinion of the justices j 
of the Supreme Court as to whether the Legislature could con- 
stitutionally authorize a city or town to buy coal and wood in 
excess of its ordinary requirements for the purpose of sellingi 
such excess to its own citizens. Several questions of the same< 
import were propounded to the justices. In response to these 
inquiries the justices said, in part, that the question — 

must be determined by considering whether the carrying on of such a. 
business for the benefit of the inhabitants can be regarded as a public* 
service. This inquiry underlies all the questions on which our opinion 
is required. If such a business is to be carried on, it must be with money 
raised by taxation. It is settled that the Legislature can authorize a 
city or town to tax its inhabitants only for public purposes. This is 
not only the law of this Commonwealth, but of the States generally and 
of the United States. (Opinion of the Justices, 155 Mass. 601.) 

The Legislature of 1903 required the opinion of the justices 
upon various questions in regard to the purchase of coal and 
wood as fuel by a city or town in excess of its ordinary require- 
ments, for the purpose of selling such excess to its inhabitants 
or others (1) at cost, (2) at less than cost, or (3) at a profit. 
In a discussion of the principles involved the learned justices 
said : — 

There is nothing materially different between the proposed establish- 
ment of a governmental agency for the sale of fuel and the establisbmeni 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 163 

if a like agency for the sale of other articles of daily use. The business 
i selling fuel can be conducted easily by individuals in competition. It 
oes not require the exercise of any governmental function, as does the 
istribution of water, gas and electricity, which involves the use of the 
ublic streets and the exercise of the right of eminent domain. It is not 
nportant that it should be conducted as a single large enterprise with 
.ipphes emanating from a single source, as is required for the economical 
lanagement of the kinds of business last mentioned. It does not even 
iU for the investment of a large capital, but it can be conducted profit- 
bly by a single individual of ordinary means. {Opinion of the Justices, 
S2 Mass. 605.) 

In the opinion last above cited the justices further said: — 

Until within a few years it generally has been conceded, not only that 

would not be a public use of money for the government to expend it in 

le establishment of stores and shops for the purpose of carrjdng on a 

isiness of manufacturing or selling goods in competition with individuals, 

it also that it would be a perversion of the function of government for 

e State to enter as a competitor into the field of industrial enterprise, 

ith a view either to the profit that could be made through the income 

be derived from the business, or to the indirect gain that might result 

purchasers if prices were reduced by governmental competition. There 

ay be some now who believe it would be well if business was conducted 

' the people collectively, living as a community, and represented by 

e government in the management of ordinary industrial affairs. But 

ibody contends that such a system is possible under our Constitution. 

is plain, however, that taxation of the people to establish a city or 

wn in the proprietorship of an ordinary mercantile or manufacturing 

isiness would be a long step towards it. If men of property, owning 

al and wood yards, should be compelled to pay taxes for the establish- 

mt of a rival coal yard by a city or town, to furnish fuel at cost, they 

)uld thus be forced to make contributions of money for their own im- 

:verishment; for if the coal yard of the city or town was conducted 

« :)nomically, they would be driven out of business. A similar result 

' tuld foUow if the business of furnishing provisions and clothing, and 

<ier necessaries of life, were taken up by the government; and men 

MO now earn a livelihood as proprietors would be forced to work as 

( iployees in stores and shops conducted by the public authorities. 

( pinion of the Justices, 182 Mass. at p. 607.) 

In 1907 a bill to authorize the city of Holyoke to "cut and 
1 rvest ice from any great pond or river in its limits, and from 



164 OPINIONS OF THE ATTORNEY-GENERAL. 

any ponds or reservoirs used by the municipality as a water 
supply, and to store and sell the same at wholesale to the in- 
habitants of the city" was submitted by the Governor to the 
then Attorney-General, Hon. Dana Malone, whose opinion was 
that the bill referred to could not constitutionally be enacted. 

I am unable to differentiate between the business of dealing 
in coal and fuel and other necessaries of life and the business of 
cutting, harvesting and selling ice. The fact that in the in- 
stances specified in the questions submitted to me the ice is to 
be cut from reservoirs, ponds or other sources of water supply 
owned , or controlled by the city or town cutting, storing and 
selling it does not, in my opinion, materially change the legal 
aspect of these questions. 

In view of the opinions of the justices and of my learned 
predecessor, above quoted, and of the provisions of the Consti- 
tution, I am constrained to the conclusion that all the questions 
submitted to me in this inquiry must be answered in the nega- 
tive, and that such legislation as is suggested by these inquiries, i 
if enacted, would be unconstitutional. ■ 

State Hospitals — Boards of Trustees — Salaries oi 
Officers — When subject to Approval of Governor 
and Council. 

Where offices are created in connection with State institutions under St. 1909 
c. 504, either directly or by action of the trustees, salaries to be paid person: 
holding such offices must be approved by the Governor and CounciL 

Governor. You havc requested my opinion as to who, among the ap- 

March 3. poiutccs of a board of trustees of one of the State hospitals, an 

persons whose salaries are subject to approval by the Governoi 
and Council under the provisions of section 18 of chapter 50- 
of the Acts of 1909. Section 17 of the same chapter has som( 
bearing upon the answer to your inquiry and provides in par 
as follows : — 

The trustees of each institution shall have charge of the general in 
terests thereof, and shall see that its affairs are conducted according t' 
law and to the by-laws and regulations established by them. 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 165 

Section 1 8 provides as follows : — 

They shaU appoint a superintendent who shall be a physician and who 
hall constantly reside at the institution, assistant physicians, one of 
vhom in each institution for the insane in which women are received as 
)atients and in which more than two assistant physicians are employed 
hall be a woman, and a treasurer who shall give bond for faithful per- 
ormance of his duties; shall appoint or make provision in by-laws for 
ppointing such officers as in their opinion may be necessary for conduct^ 
tig efficiently and economically the business of the institution; and shall 
letermine, subject to the approval of the governor and council, the 
alaries of all the officers. All their appointments shall be made in such 

manner, with such restrictions and for such terms, as the by-laws may 
irescribe. . . . The trustees shall also establish by-laws and regulations, 
nth suitable penalties, for the government of the institutions, and shall 
•rovide for a monthly inspection and trial of the fire apparatus belonging 
' the institutions, and for the proper organization and monthly drill of 
he officers and employees in its use. 

This question was propounded to one of ray predecessors in 
iffice, the Honorable Dana Malone, and I quote his opinion in 
ull: — 

It is evident that the word "officers" is used in the statute in a special 
ense, and that for a position in the hospital to be an "office," within the 
leaning of the statute providing that the trustees shall appoint "such 
fficers as in their opinion may be necessary for conducting efficiently 
nd economically the business of the institution," it is not necessary 
hat the position should have all the attributes of an office considered as 

public office. 

In my opinion, the intent of the statute is that the Governor and 
.'Ouncil shall have submitted to them for their approval the proposed 
ompensation of all persons who hold positions in the institution which 
re created as positions b}^ the trustees, and who are paid salaries, as 
istinguished from those persons who do not hold distinct positions and 
re employed for wages. 

While I agree with the views and conclusion of my learned 
)redecessor, I will add that this statute, to my mind, dis- 
inguishes clearly between officers and employees of the insti- 
utions. The statute creates and provides for several offices in 
ach institution. It establishes the offices of superintendent, 
ssistant physicians and treasurer, and confers upon the board 



166 



OPINIONS OF THE ATTORNEY-GENERAL. 



of trustees authority to create additional offices under such 
title, in such number and of such character as in its opinion 
may be necessary for conducting efficiently and economically 
the business of the institution, and authorizes it to make ap- 
pointments to the offices it has created. Under its pro- 
visions the salaries pertaining to offices created by the statute 
itself or by act of the board of trustees are all subject to the 
approval of the Governor and Council. The by-laws made by 
the trustees in pursuance of the provisions of the statute or the 
records of the proceedings of the trustees should show every 
office created by them. If, for instance, the board of trustees, 
acting under the authority granted by the statute, has created 
the office of chief engineer, the salary attached to that office is 
subject to the approval of the Governor and Council. If, how- 
ever, the board of trustees has not created that office, then the 
Governor and Council have no concern with the salary paid to 
the man employed as chief engineer. In the one case he be- 
comes an officer under the statute, whose salary must be subject 
to the approval of the Governor and Council, and in the other 
he is simply an employee, with whose salary the Governor and 
Council have no concern. 

I have not the by-laws or other records of proceedings of the 
board of trustees before me, and am therefore unable to render 
a more definite opinion upon the matter you have in hand. 

The question whether the chief engineer or the bookkeepers 
are officers or employees is, in my opinion, to be determined by 
reference to the action of the board of trustees in establishing 
offices under the statute. 



To the state 
Board of 
Education. 

1914 
March 10. 



Board of Education — Residence of Minors for School 

Purposes. 

The word "residence," under St. 1911, c. 471, § 7, relating to applicants for ad- 
mission to an industrial, agricultural or household arts school, means the 
actual residence of such applicants. 

You have requested my opinion relative to the meaning of 
the words "residence" and "resides" as used in section 7 of 
chapter 471 of the Acts of 1911. You make reference in your 



I 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 167 

■ommunication to certain cases of "particular difficulty," as, 
vhere pupils who are in attendance upon the evening industrial 
chool in Boston move to an adjoining city or town. 

Each case of this class depends so much upon its own circumstances 
hat it is difficult to find authorities for anything more than a few gen- 
ral positions which are plain and well understood. (Sears v. Boston, 
Met. 250.) 

It is said that one is a resident of a place from which his 
eparture is indefinite as to time, definite as to purpose; and 
or this purpose he has made the place his temporary home. 
3 Fed. Rep. 311. 

The word "residence" has been defined as meaning "per- 
onal presence in a fixed and permanent abode." Where a 
esident of a particular place goes to another place or country, 
he great question whether he has ceased to be a resident of 
ne place and become a resident of another will depend mainly 
pon the question, to be determined from all the circumstances, 
,'hether the new residence is temporary or permanent, whether 
: is occasional, for the purpose of a visit or of accomplishing a 
eraporary object, or whether it is for the purpose of continued 
esidence and abode until some new resolution be taken to 
emove. Sears v. Boston, supra. 

The word "residence" is used in different senses. Generally, 
1 the laws relating to taxation, voting and settlement, it 
leans the same as domicil; and usually it means the same in 
he law of divorce, although with a well-recognized exception. 

Generally speaking, the question as to what constitutes resi- 
ence is mainly a question of fact, and the element of intention 
nters into it. The residence must be both actual and intended. 
n re Br. Munroe, 5 Mad. Ch. R. 379. 

Actual residence and the intention to remain there permanently or 
)r an indefinite time without any fixed or certain purpose to return to 
18 former place of abode are required to constitute a change of domicil. 
Yinans v. Winans, 205 Mass. 388, 391.) 

And the intention may even be to reside for a definite term 
f years, as in the case of a minister (McCrary, Elections, 559), 



168 OPINIONS OF THE ATTORNEY-GENERAL. 

or of a mechanic, day laborer or student. Lyman v. Fiske, 
17 Pick. 231. 

Each successive domicil continues, until changed by acquiring another. 
(Opinion of the Justices, 5 Met. 587.) 

That is to say, one never has at any given time more than 
one place of domicil; and until one's purpose to change his 
place of domicil or residence has become fixed, he cannot be 
said to have abandoned a former residence. Oliveri v. Atkin- 
son, 168 Mass. 28; Worcester v. Wilbraham, 13 Gray, 586. 

Your concern, however, is chiefly as to the residence of 
minors. The residence of a minor follows that of the father, 
if he is living, and of the mother if the father is dead. Ille- 
gitimate children take the residence of the mother. 14 Cyc. 
843-4. So that it becomes necessary in many cases to con- 
sider the residence of the father, or of the mother if the father 
is dead. 

In the case of a person above the age of twenty-one years 
parental support is immaterial unless accompanied by other 
facts tending to show legal residence with the parents. 

The word "residence" as used in the statutes referred to in 
your communication seems to have a somewhat different signifi- 
cation than in the cases I have referred to. 

I note your statement that you have ruled that "every 
child shall have a right to attend the public schools of the 
city or town where he actually resides," and that actual resi- 
dence in a municipalit}' constitutes the applicant a resident, for 
the purposes of chapter 471 of the Acts of 1911. I am of the 
opinion that this rule is correct. 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 169 



Harbor axd Land Commissioners — Jurisdiction over Ice 
Cutting on Great Ponds. 

rhe Board of Harbor and Land Commissioners has no jurisdiction over the cutting 
of ice on great ponds, but, under R. L., c. 96, §§ 18 and 25, has authority 
to permit ice-harvesting structures to encroach on such ponds or to abate 
as nuisances structures erected without a license. 

You have inquired whether your Board has any jurisdiction To the Board 

. ' „ . "'.,,. of Harbor and 

vith reference to the cutting or ice on great ponds belonging Land Com- 
missioners. 

o the Commonwealth. ,. ^^}*,, 

March 11. 



By the law of Massachusetts, great ponds, not appropriated before 
he Colony Ordinance of 1647 to private persons, are public property, the 
ight of reasonably using and enjoying which, for taking ice for use or 
ale, as well as for fishing and fowling, boating, skating, and other lawful 
urposes, is common to all, and in the water or ice of which, or in the 
md under them, the owners of the shores have no pecuhar rights, except 
y grant from the Legislature, or by prescription, which imphes a grant. 
Hitiinger v. Eames, 121 Mass. 539, 546.) 

It is too well settled to be disputed that the property in the great 
onds is in the Commonwealth; that the public have the right to use 
lem for fishing, fowling, boating, skating, cutting ice for use or sale, and 
ther lawful purposes; and that the owners of the shores have no exclusive 
ghts in them except by a grant of the Legislature. . . . 

The right to cut ice is common to all the public. (People^s Ice Co. v. 
>avmport, 149 Mass. 322, 324.) 

The right to cut ice therefrom for use or sale is common to all, and the 
.\Tiers of the shores have no peculiar right in the water or ice, or in the 

nd under them, except by grant of the Legislature, or by prescription 
om which a grant is to be implied. {Gage v. Steinkrauss, 131 Mass. 222.) 

Persons have "no peculiar title or right in the pond by 

rtiie of being lessees of an ice house and land upon the 

lore." Rowell v. Doyle, 131 Mass. 474, 476. 

I have been unable to find that there has been any delega- 

3n by the Legislature to your Board of the power to limit 

le public right to take ice from great ponds. By section 18 

chapter 96 of the Revised Laws your Board may authorize 

e encroachment on great ponds for the purpose of building 

: ructures to be used in ice taking, but such license would, of 

' urse, confer no exclusive right to take ice. 



IL 



170 



OPINIONS OF THE ATTORNEY-GENERAL. 



Under section 25 of said chapter your Board may abate as a 
nuisance any such structures erected without license. See 
Attorney-General v. Ellis, 198 Mass. 91. 



To the State 
Board of 
Registration in 
Pharmacy. 

1914 
March 13. 



Board of Registration in Pharmacy — Corporations — 

Drug Stores. 

Under St. 1913, c. 705, § 4, a drug store, if managed by a registered pharmacist, 
may be owned by a corporation some of whose stockholdei s are not registered 
pharmacists. 

In your communication of recent date you state that "the 
Board of Registration in Pharmacy has been petitioned by the 
Massachusetts State Pharmaceutical Association to refuse per- 
mits to such new stores as have among their stockholders 
unregistered persons actively engaged in the business of phar- 
macy. See § 2, c. 720, Acts of 1913; also c. 705, Acts of 1913." 
And you add that "information is respectfully asked if the 
Board can comply with said petition, provided the store is 
under the direct supervision of a registered stockholder." 

I take it that your inquiry relates to corporations that desire 
to open and keep open drug stores and that have among their 
stockholders persons who are not registered pharmacists but 
who are nevertheless actively engaged in the business of 
pharmacy. 

It is difficult to understand, in view of the provisions of the 
law and the penalties involved, how any unregistered person 
can now be actively engaged in the business of pharmacy. 

It may be well to consider just what that business is. 
"Pharmacy" is defined as meaning — 

1. The art or practice of preparing, preserving, and compounding 
medicines, and of dispensing them according to the formulae or pre- 
scriptions of medical practitioners. 

2. The occupation of an apothecary or pharmaceutical chemist. 

3. A place where medicines are prepared and dispensed; a drug store; 
an apothecary's shop. (Century Dictionary.) 

It will be noted that the definition relates solely to drugs or 
medicines and the compounding and dispensing of the same, 



( 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 171 

and contains no reference to any one of the great number of 
articles of ordinary merchandise now to be found on sale in 
stores where the business of pharmacy or the drug business is 
:arried on. 

Section 1 of chapter 705 of the Acts of 1913 defines the term 
'drug business" as used in that act as follows: — 

The term "drug business" as used in this act shall mean the sale of 
>pium, morphine, heroin, codeine or other narcotics, or any salt or com- 
lound thereof, or any preparation containing the same, or cocaine, alpha 
r beta eucaine, or any synthetic substitute therefor, or any salt or com- 
iQund thereof, or any preparation containing the same, and the said 
erm shall also mean the compounding and dispensing of physicians' 
rescriptions. 

Said chapter further provides in sections 2, 3 and 4 as 
dIIows: — 

Section 2. No store shall be kept open for the transaction of the 
itail drug business unless it is registered with and a permit therefor has 
3en issued by the board of registration in pharmacy as herein provided. 
Section 3. The board of registration in pharmacy shall, upon appli- 
ition, issue a permit to keep open a store for the transaction of the retail 
nig business to such persons, firms and corporations as the board may 
3em qualified to conduct such a store. The application for such a 
^rmit shall be made in such manner and in such form as the board shall 
itermine. A permit issued as herein provided shaU be exposed in a 
mspicuous place in the store for which the permit is issued and shall 
:pire on the first day of January following the date of its issue. The 
e for the permit shall be one dollar. 

Section 4. No such permit shall be issued for a corporation to keep 
)en a store for the transaction of the retail drug business, unless it shall 
ipear to the satisfaction of the said board that the management of the 
ug business in such store is in the hands of a registered pharmacist. 

The section last above quoted makes special provision in 
gard to permits to corporations and provides that no such 
•rmit shall be issued to a corporation unless it shall appear to 
■ e satisfaction of your Board that the management of the drug 
iisiness in the store of the corporation is in the hands of a 
leistered pharmacist. 
In the sale of the stock of a corporation, some and possibly a 



11 



172 



OPINIONS OF THE ATTORNEY-GENERAL. 



large part of it will naturally pass to the ownership of persons 
who are not registered pharmacists. The purpose of the 
statute is to protect the public from the dangers that would be 
occasioned by the compounding and dispensing of medicines 
and drugs by ignorant and unskilled persons. Under the pro- 
visions of section 4 above quoted it is clear that if and when it 
shall appear to the satisfaction of your Board that the manage- 
ment of the drug business in the store for which a permit is 
sought is in the hands of a registered pharmacist, the measure 
of safety required by the law has been attained and the pro- 
visions of the statute are satisfied. It is not to be expected 
that all the stockholders of a corporation, even though it be 
organized for the special purpose of carrying on the drug 
business, will be registered pharmacists; and the fact that 
some stockholder in such a corporation is unlawfully engaged 
in the drug business would not seem to be a sufficient reason 
for refusing a permit. 

The Board of Registration in Pharmacy is, in my opinion, 
required under the statute of 1913 to act in good faith on each 
and every application made to it for a permit and to grant 
permits only to such persons, firms and corporations as it may 
deem qualified to conduct a store for the transaction of the 
retail drug business as defined in the statute. 



To the 
Civil Service 
Commission. 

11914 
March 17. 



Civil Service — Assistant Assessors of the City of 

Boston. 

St. 1913, c. 484, requiring appointments of first assistant assessors in the city ol 
Boston to be subject to civil service, does not affect the provisions of St 
1894, c. 276, relating to assistant assessors other than first assistants. 



You have requested my 
questions : — 



opinion upon the following 



First. — Are section 13 of chapter 19 of the Revised Laws and chaptei 
276 of the Acts of 1894 inconsistent with the provisions of chapter 484 o 
the Acts of 1913, and therefore repealed? 

Second. — If the above question is answered in the negative is then 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 173 

any violation of said section 13 of chapter 19 of the Revised Laws if, in 
its endeavor to carry out the provisions of each of the above-mentioned 
acts relating to the appointment of assistant assessors, the Civil Service 
Commissioners make inquiries of the applicants as to their politics and 
certify to fill vacancies accordingly? 

Chapter 276 of the Acts of 1894 provides as follows: — 

In the city of Boston the assistant assessors shall be appointed in equal 
lumbers from the two leading political parties, for each grade of assistant, 
md shall be assigned to the various assessment districts so that the 
issistant assessors assigned to any district shall equally represent such 
parties. 

Section 13 of chapter 19 of the Revised Laws provides in 
3art : — 

No question in anj^ examination shall relate to, and no appointment to 
I position or selection for emplojTnent shall be affected by, pohtical or 
eligious opinions or affiliations. 

Chapter 484 of the Acts of 1913 provides: — 

Section 1. All appointments of first assistant assessors in the city of 
Boston shall be for an indeterminate period, and shall be subject to the 
ivil service rules estabhshed under the provisions of chapter nineteen 
if the Revised Laws and acts in amendment thereof and in addition 
hereto. 

Section 2. First assistant assessors in the city of Boston holding 
iffice at the time of the passage of this act shall continue to hold office as 
f appointed under this act. 

Section 3. All acts or parts of acts inconsistent herewith are hereby 
epealed. 

The intention of the Legislature in the enactment of chapter 
84 of the Acts of 1913 w^as, first, to secure the retention in 
'ffice of those then holding the positions of first assistant 
ssessors of the city of Boston, and, second, to provide that 
ppointments to those positions should in the future be made 
1 accordance with the civil service law and the rules made in 
ursuance of that law by your commission. Chapter 276 of 
he Acts of 1894 and chapter 484 of the Acts of 1913 both have 



174 OPINIONS OF THE ATTORNEY-GENERAL. 

relation to the city of Boston and to the office of first assistant 
assessors. The purpose and intention of the later enactment 
are certainly not consistent with the purpose of chapter 276 of 
the Acts of 1894, and therefore repeal the provisions of the 
earlier statute so far as that statute relates to the appointment 
of first assistant assessors. It is my opinion that this repeal 
goes no farther than the office of first assistant assessors, and 
that assistant assessors other than the first may be appointed 
by the mayor of Boston in accordance with the provisions of 
chapter 276 of the Acts of 1894. I am also of the opinio a that 
the provisions of section 13 of chapter 19 of the Revised Laws 
are not affected or in any way modified by the provisions of 
chapter 484 of the Acts of 1913. 



March 17. 



Labor and Industries — Suction Shuttle. 

The use of the suction shuttle in factories, by whatever devdce it is operated, is 
forbidden by St. 1911, c. 281, § 1. 

Boa^rd^of Labor Your communicatiou of March 10, as I understand it, re- 
^° 1914 "^ "*'^' quests my opinion upon the following question : May the 
proprietor of a cotton factory use the suction shuttle, so called, 
provided he furnishes the employee using the shuttle with a 
hook for threading it, making threading by suction unneces- 
sary? 

Section 1 of chapter 281 of the Acts of 1911 provides as 
follows: — 

It shall be unlawful for any proprietor of a factory or any officer or 
agent or other person to require or permit the use of suction shuttles, or 
any form of shuttle in the use of which any part of the shuttle or any 
thread is put in the mouth or touched by the lips of the operator. It 
shall be the duty of the state board of health to enforce the provisions of 
this act. 

The danger attending the use of shuttles of this type would 
be avoided by the use of a hook for threading them, but the 
Legislature regarded this type of shuttle as so objectionable 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 175 

that it enacted that it should be unlawful for any proprietor 
3f a factory or any officer or agent or other person to require 
IT permit its use. A change in the method of using the 
shuttle in no way alters the statute. I am of the opinion that 
he use of the suction shuttle, by whatever device it is oper- 
ited, is unlawful, and will be so until the statute is changed. 



Board of Agriculture — Prizes. 

Fnder Res. 1913, c. 96, the State Board of Agriculture has authority to issue prizes, 
in its discretion, for the best system of farm bookkeeping and the best plan 
of a dairy barn. 

You have requested my opinion upon the following question: To the state 

s the Dairy Bureau of the State Board of Agriculture em- Agriculture. 

owered by chapter 96 of the Resolves of 1913 to award cash March i 7. 

rizes for the best system of farm bookkeeping, open to the 

•orld, and for the best plan of a dairy barn, open to the world? 

The evident purpose of this resolve is that stated in its title, 

- "to provide for the encouragement of dairying and the pro- 

uction of milk and dairy products of superior quality." The 

isolve provides that this may be done by offering prizes: 

I) for the best kept stables, (2) the lowest bacteria counts, 

^) the best quality of milk, (4) or otherwise, as the Board 

lay determine; (5) by demonstrations illustrating the best 

lethods of dairying; (6) by agents who shall instruct the 

tizens of the Commonwealth in matters of stable construction 

id management and dairy methods in general; (7) by the 

.stribution of literature giving information in regard to the 

?st methods of dairying, and especially in regard to the pro- 

jction of clean milk; and (8) and lastly, "in such other 

anner as the Board may deem best for the encouragement of 

drying and the production of clean milk." 

This resolve confers upon the Board of Agriculture authority 

proceed in its own discretion, either by the means suggested 

erein or by such other means and methods as in its judgment 

11 in the greatest degree make for the encouragement of 



176 



OPINIONS OF THE ATTORNEY-GENERAL. 



dairying and the production of milk and dairy products of 
superior quality. The only limitation upon the exercise of the 
discretion of the Board is the necessary one that applies to all 
cases of the kind, — that it be exercised in good faith. 

The scope of the resolve under which you act in this matter 
is limited to the encouragement of dairying, etc. It may be a 
matter of serious consideration whether a system of farm book- 
keeping falls within the purpose of the resolve. However, as, 
in my opinion, your Board is the final judge of that question, 
I offer no further suggestion of my own upon this point. 

It is my opinion that if the State Board of Agriculture, in the 
exercise of its discretion and judgment, believes the purposes 
sought b}'' the enactment of chapter 96 of the Resolves of 1913 
will be best served by awarding cash prizes for the best system 
of farm bookkeeping and for the best plan of a dairy barn, the 
competition to be open to the world, it has authority to offer 
and award such prizes. 



To the 

Committee on 
Social Welfare. 

1914 
March 23. 



Annulment of Marriage — Payment of Alimony. 

Courts cannot make provision for alimony upon annulment of marriage. 

You have requested my opinion upon the following question: 
"In case of a petition for nullity of marriage does the court 
now have power to make provision for the support of the wife?" 

The statute, R. L., c. 151, § 11, provides, among other things, 
that in suits for annulling a marriage a libel may be filed in the 
same manner as a libel for divorce and that "all the provisions 
of chapter one hundred and fifty-two relative to libels for 
divorce shall, so far as appropriate, apph" to libels under the 
provisions of this section." 

The real question, then, is. To what extent are the provisions 
of chapter 152, relative to decrees for the payment of alimony, 
appropriate to proceedings for the annulment of a marriage? 

It may aid us in reaching a sound conclusion in regard to 
this matter if we consider briefly the character and results ot 
actions for divorce and actions for nullity. The action for 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 177 

divorce is based upon the fact of a valid marriage. The action 
for nuUity is based upon the fact that there has been no vaHd 
marriage. In its consequences a sentence or decree of nulHty 
differs materially from a decree of divorce. The latter assumes 
the validity of the marriage. If the marriage was not valid, 
no decree of divorce could be made, and the operation of the 
divorce is entirely prospective; while a decree of nullity is 
retroactive in that it renders the marriage void from the be- 
ginning and nullifies all its legal results. The parties are to be 
regarded as if no marriage had ever taken place. They are 
single persons, if they were single before. Their rights of 
property as between themselves are to be viewed as never 
having been affected by the marriage. 

The right to alimony upon the granting of a decree of di- 
voTce from the bond of matrimony is purely statutory. At the 
?ommon law, alimony w^as awarded only in those cases in which 
:he marriage relation continued, that is, in cases of divorce from 
3ed and board; and no alimony could be awarded upon a 
livorce from the bond of matrimony. Davol v. Davol, 13 Mass. 
i64; Jones v. Jones, 18 Me. 308. 

Apart from any consideration of our statute, it may be said 

is a general proposition that a woman is not entitled to per- 

nanent alimony upon a sentence of nullit}^ although some 

uthorities hold that she is entitled to alimony pendente lite. 

! Bishop on Marriage, Separation and Divorce, § 1597. 

This question does not appear to have been passed upon by 

ur Supreme Judicial Court, the nearest approach to it being 

3und in the case of Adams v. Holt, 214 Mass. 77. It is 

orthy of note that counsel for the wife in this case, being 

onfronted with the question you have propounded and having 

ccasion to give it most careful consideration, evidently con- 

luded that a claim for alimony could not be sustained and 

lerefore asked for compensation for services, which was refused. 

In rendering its decision in the case just referred to the 

jurt said : — 

It has been held that relief in the nature of alimony cannot be afforded 
cept as an incident in connection with a divorce. 



178 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 



And cited Adams v. Adams, 100 Mass. 365; Parker v. Parker, 
211 Mass. 139. 

To the same effect are the cases of Page v. Page, 189 Mass. 
85, and Shannon v. Shannon, 2 Gray, 285. 

While these cases may be said not to be absolutely conclusive 
in regard to the question before me, inasmuch as none of them 
presented precisely the same issue, still, the trend of the Massa- 
chusetts decisions referred to, when taken into consideration 
with the essential differences between an action for divorce and 
an action for annulment of marriage, the difference in results 
between decrees for divorce and decrees of nullity, and the fact 
that alimony is incident to suits for divorce and is not incident 
to suits of nullity, is certainly sufficient to create very grave 
doubt as to whether alimony can be granted in an action of 
nullity. 

I am of the opinion that the provisions of our statute in 
regard to alimony are not appropriate to an action of nullity, 
and that for this reason the court in actions of nullity cannot 
make provision for the support of the wife. The question is 
not, however, free from difficulty, and the bill submitted with 
your question would undoubtedly clear this question of all 
doubt and uncertainty. 



To the 

Committee on 
the Judiciary. 

1914 
March 24. 



Constitutional Law — Liberty of the Press — Publica- 
tion OF Names of Drugs taken with Suicidal Intent. 

A law prohibiting the publication of the name of any drug, chemical, etc., taken 
with suicidal intent would be unconstitutional as interfering with the liberty 
of the press. 

You have requested my opinion as to whether House Bill 
No. 1145, if enacted, would be constitutional. 
The proposed bill reads as follows: — 

Whoever publishes, or causes to be published, in anv newspaper or 
magazine, or in any other public manner, the name of any drug, chem- 
ical, or medicinal preparation when the same has been taken by any 
person with suicidal intent, or when any such drug, chemical or medic- 
inal preparation has been intentionally or unintentionally administered 



OPINIONS OF THE ATTORNEY-GENERAL. 179 

or applied to any human being or beast, shall be punished by a fine of 
not less than ten dollars and not more than one hundred dollars, or shall 
be imprisoned in a jail or house of correction for a term not exceeding 
one year, or shall be punished by both such fine and imprisonment. 

The question presented is whether this bill, if enacted, will 
be an unlawful interference with the liberty of the press. 

By the first amendment of the Constitution of the United 
States the liberty of the press is secured against restraint, it 
Deing provided that Congress shall make no law abridging 
reedom of speech or of the press. The Constitution of this 
:ommonwealth, by Article XVI. of the Declaration of Rights, 
ecures the liberty of the press in the following language: — 

The liberty of the press is essential to the security of freedom in a 
tate: it ought not, therefore, to be restrained in this commonwealth. 

Notwithstanding the fact that the liberty of the press is thus 
ecured against restraint, it is true that it is a right that may 
ot be abused. He who uses it is responsible for its abuse. 

The liberty of the press, not its licentiousness, is the construction 
hich a just regard to the other parts of the Constitution and to the 
isdom of those who framed it, requires. (Commonwealth v. Blandina 
Pick. 304.) 

That the licentiousness of the press, not its liberty, may be 
'Strained by the exercise of the police power seems to be well 
■ttled; as, in the familiar instances forbidding the publication 
id sale of a newspaper devoted to the publication of scandal 
id immorality, prohibiting blasphemous publications, exclud- 
g obscene matter from the mails, and various other enact- 
ents. It has ever been the aim of our government to maintain 
id preserve to the press the full enjoyment of the right secured 
It by the Constitution and to restrain and prevent the abuse 

< that right. Our problem is to determine how far this right 

(tends; to locate the line of demarcation at which liberty 

lives off and license begins. 
It may be said by way of premise that the phrase "liberty of 

t^ press" includes a great deal more than the right to discuss 



I 



180 OPINIONS OF THE ATTORNEY-GENERAL. 

freely political and governmental questions. It is a right the 
enjoyment of which is not confined solely to those who publish 
books, pamphlets and periodicals. It embodies the right of 
every individual citizen to be informed. Liberty of speech and 
of the press is the liberty to know, to utter, to publish and to 
argue freely upon all questions of public interest, whether 
political, religious, social, moral, literary, scientific, industrial or 
financial. Necessarily the field of usefulness and of responsi- 
bility of the press increases with every advance of human 
knowledge. The position occupied by the press in the modern 
social and business world has been well described and its legal 
limitations to a great degree indicated by Judge Cooley in his 
work on Constitutional Limitations, wherein, speaking of the 
press, he says : — 

Through it, and by means of the electric telegraph, the public pro- 
ceedings of every civilized country, the debates of the leading legis- 
lative bodies, the events of war, the triumphs of peace, the storms in 
the physical world, and the agitations in the moral and mental, are 
brought home to the knowledge of every reading person, and, to a very 
large extent, before the day is over on which the events have taken place. 
And not public events merelj'' are discussed and described, but the actions 
and words of public men are made public property; and any person suf- 
ficiently eminent or notorious to become an object of public interest will 
find his movements chronicled in this index of the times. Every party 
has its newspaper organs; every shade of opinion on political, religious, 
literary, moral, industrial, or financial questions has its representative; 
every locality has its press to advocate its claims and advance its interests, 
and even the days regarded as sacred have their special papers to furnish 
reading suitable for the time. The newspaper is also the medium by 
means of which all classes of the people communicate with each other 
concerning their wants and desires, and through which they offer their 
wares and seek bargains. As it has gradually increased in value, and in 
the extent and variety of its contents, so the exactions of the community 
upon its conductors have also increased, until it is demanded of the news- 
paper publisher that he shall dailj^ spread before his readers a complete 
summary of the events transpiring in the world, public or private, so far 
as those readers can reasonably be supposed to take an interest in them; 
and he who does not comply with this demand must give way to him 
who will. 

The newspaper is also one of the chief means for the education of the 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 181 

people. The highest and the lowest in the scale of intelligence resort to 
its columns for information; it is read by those who read nothing else, 
and the best minds of the age make it the medium of communication 
with each other on the highest and most abstruse subjects. 

The proposed bill, if enacted, will certainly trench upon some 
of the functions of a free press as described in the passage last 
above quoted. It will prohibit to some extent the spread of 
information beneficial to many people by showing them what to 
avoid in the use of drugs, chemicals and medicinal preparations. 
It will tend, also, to prevent the dissemination not only of 
knowledge about poisons but of their antidotes as well. Its 
effect will be to prevent in some measure the publication of 
:hose precautionary suggestions that appear in the press in 
?ases where poison is administered or taken by mistake, — 
mggestions that are really useful to many members of society, 
[f it be said that some misguided or weak-minded persons make 
)ad use of the information contained in publications which it is 
;he purpose of this bill to prevent, the answer is that every kind 
)f useful knowledge is at times misused and abused, to the great 
njury of individuals and of the community. 

This measure must be considered in the light of the rule that — 

The constitutional liberty of speech and of the press, as we understand 
t, implies a right to freely utter and publish whatever the citizen may 
)lease, and to be protected against any responsibility for so doing, except 
far as such publications, from their blasphemy, obscenity, or scan- 
lalous character, may be a public offence, or as by their falsehood and 
nahce they may injuriously affect the standing, reputation, or pecuniary 
nterests of indi\dduals. (Cooley on Constitutional Limitations, 5th 
d., p. 521.) 

Entertaining no doubt wdiatever that the press may be held 
n check whenever its publications violate the rule above stated, 

am of the opinion that the measure you have submitted to 
ne is obnoxious to the provisions of the Constitution securing 
he liberty of the press and that, if enacted, it would be uncon- 
titutional. 



I 



I 



184 OPINIONS OF THE ATTORNEY-GENERAL. 

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 com- 
monwealth, and for the government and ordering thereof, and 
of the subjects of the same." 

In the exercise of the authority vested in it by the Consti- 
tution, the Legislature has provided for the laying out and 
construction of public ways, either by means of authority 
conferred upon a commission of the Commonwealth, as the 
State Highway Commission, or, in some instances, county com- 
missioners, or by authority conferred upon cities and towns. 
It would seem to be too late to question the general authority 
of the Legislature to regulate the use of the highways in Massa- 
chusetts. Generally speaking, the highways within and through 
the State are in fact constructed by authority of the State 
itself, and it has full power to provide all proper regulations of 
police to govern the action of persons using them. Cooley on 
Constitutional Limitations, 7th ed., p. 860. 

In this Commonwealth the Legislature has always exercised 
its authority in such manner as seemed necessary or proper to 
regulate the use of the highways. Among the familiar instances 
of such legislative regulation are: the law of the road that 
when persons meet on a bridge or way, traveling with car- 
riages, wagons, carts, sleds, sleighs, bicycles or other vehicles, 
each shall seasonably drive his carriage to the right; that the 
driver of a carriage or other vehicle passing a carriage or other 
vehicle traveling in the same direction shall drive to the left; 
that no person shall travel on a bridge or way with a sleigh 
or sled drawn by a horse unless there are at least three bells 
attached to some part of the harness (R. L., c. 54, §§ 1, 2 and 
3); that the driver of every vehicle on a bridge or way, public 
or private, where there is not an unobstructed view of the road 
for at least one hundred yards shall keep his vehicle on the 
right of the middle of the traveled part of such bridge or way. 
(St. 1908, c. 512, § 1.) So, too, it was long ago held that the 
speed of travel may be regulated with a view to safe use and 
general protection and to prevent a public nuisance. Comvion- 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 185 

wealth V. JVorcester, 3 Pick. 461; Commonwealth v. Stodder, 2 
Cush. 562. And the Legislature has provided that one may 
not allow his beasts to run at large on a public way. Common- 
wealth V. Curtis, 9 Allen, 266. The riding of bicycles on side- 
walks is prohibited. R. L., c. 52, §§9, 10, 11 and 12. The 
construction of bicycle paths in the highway and the reserva- 
tion of spaces for the use of horseback riders in certain parts 
of public ways has been authorized. R. L., c. 48, § 45. 

The Legislature has power to authorize, and has authorized, 
certain obstructions in highways which would otherwise be a 
public nuisance, such as the laying of railroad tracks. Com- 
monwealth V. Old Colony & Fall River R.R. Co., 14 Gray, 93; 
Springfield v. Connecticut River R.R. Co., 4 Cush. 71. And 
the Legislature may grant a power to take land already appro- 
priated and in use as a public way for another public use. 
Simngfield v. Connecticut River R.R. Co., supra; Boston v. 
Brookline, 156 Mass. 172; Neuion v. Newton, 188 Mass. 226. 

Many other instances of the exercise of legislative authority 
in the control and regulation of the use of highways might 
be cited. 

Legislation has also been enacted directly regulating the use 
of automobiles and motor vehicles on public ways and also 
authorizing various boards, towns and cities to make by-laws 
and ordinances in regard thereto; and the constitutionality of 
this legislation has been sustained by the Supreme Judicial 
Court. An instance of legislation of this kind is to be found 
in chapter 203 of the Acts of 1907, which provides that — 

Any person who operates an automobile or motor vehicle, and any 
owner of an automobile who permits such machine to be operated in or 
over any highway or private way laid out under authority of law or other- 
wise, from which automobiles or motor vehicles are excluded, provided 
notice of such exclusion is conspicuousl}' posted at the entrance to such 
way, shall be liable to any or all of the provisions and penalties provided 
in section nine of chapter four hundred and seventy-three of the acts of 
the year nineteen hundred and three, as amended by section three of 
chapter four hundred and twelve of the acts of the year nineteen hundred 
and six, for violation of the laws regulating the use of automobiles and 
the conduct of operators thereof. 



184 OPINIONS OF THE ATTORNEY-GENERAL. 

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 com- 
monwealth, and for the government and ordering thereof, and 
of the subjects of the same." 

In the exercise of the authority vested in it by the Consti- 
tution, the Legislature has provided for the laying out and 
construction of public ways, either by means of authority 
conferred upon a commission of the Commonwealth, as the 
State Highway Commission, or, in some instances, county com- 
missioners, or by authority conferred upon cities and towns. 
It would seem to be too late to question the general authority 
of the Legislature to regulate the use of the highways in Massa- 
chusetts. Generally speaking, the highways within and through 
the State are in fact constructed by authority of the State 
itself, and it has full power to provide all proper regulations of 
police to govern the action of persons using them. Cooley on 
Constitutional Limitations, 7th ed., p. 860. 

In this Commonwealth the Legislature has always exercised 
its authority in such manner as seemed necessary or proper to 
regulate the use of the highways. Among the familiar instances 
of such legislative regulation are: the law of the road that 
when persons meet on a bridge or way, traveling with car- 
riages, wagons, carts, sleds, sleighs, bicycles or other vehicles, 
each shall seasonably drive his carriage to the right; that the 
driver of a carriage or other vehicle passing a carriage or other 
A'ehicle traveling in the same direction shall drive to the left; 
that no person shall travel on a bridge or way with a sleigh 
or sled drawn by a horse unless there- are at least three bells 
attached to some part of the harness (R. L., c. 54, §§ 1, 2 and 
3); that the driver of every vehicle on a bridge or way, public 
or private, where there is not an unobstructed view of the road 
for at least one hundred yards shall keep his vehicle on the 
right of the middle of the traveled part of such bridge or way. 
(St. 1908, c. 512, § 1.) So, too, it was long ago held that the 
speed of travel may be regulated with a view to safe use and 
general protection and to prevent a public nuisance. Comvion- 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 185 

wealth V. Worcester, 3 Pick. 461; CommoniceaUh v. Stodder, 2 
Cush. 562. And the Legislature has provided that one may 
not allow his beasts to run at large on a public way. Common- 
wealth V. Curtis, 9 Allen, 266. The riding of bicycles on side- 
walks is prohibited. R. L., c. 52, §§9, 10, 11 and 12. The 
construction of bicycle paths in the highway and the reserva- 
tion of spaces for the use of horseback riders in certain parts 
of public ways has been authorized. R. L., c. 48, § 45. 

The Legislature has power to authorize, and has authorized, 
certain obstructions in highways which would otherwise be a 
public nuisance, such as the laying of railroad tracks. Com- 
monwealth v. Old Colony & Fall River R.R. Co., 14 Gray, 93; 
Springfield v. Connecticut River R.R. Co., 4 Cush. 71. And 
the Legislature may grant a power to take land already appro- 
priated and in use as a public way for another public use. 
Springfield v. Connecticut River R.R. Co., supra; Boston v. 
Brookline, 156 Mass. 172; Neivton v. Newton, 188 Mass. 226. 

Many other instances of the exercise of legislative authority 
in the control and regulation of the use of highways might 
be cited. 

Legislation has also been enacted directly regulating the use 
of automobiles and motor vehicles on public ways and also 
authorizing various boards, towns and cities to make by-laws 
and ordinances in regard thereto; and the constitutionality of 
this legislation has been sustained by the Supreme Judicial 
Tourt. An instance of legislation of this kind is to be found 
ill chapter 203 of the Acts of 1907, which provides that — 

Any person who operates an automobile or motor vehicle, and any 
owner of an automobile who permits such machine to be operated in or 
over any highway or private way laid out under authority of law or other- 
wise, from which automobiles or motor vehicles are excluded, provided 
notice of such exclusion is conspicuously posted at the entrance to such 
way, shall be liable to any or all of the provisions and penalties provided 
in section nine of chapter four hundred and seventy-three of the acts of 
the year nineteen hundred and three, as amended by section three of 
chapter four hundred and twelve of the acts of the year nineteen hundred 
and six, for violation of the laws regulating the use of automobiles and 
the conduct of operators thereof. 



186 OPINIONS OF THE ATTORNEY-GENERAL. 

This act has been re-enacted in and superseded by section 
15 of chapter 534 of the Acts of 1909, and is now in force. Its 
operation on the island of Nantucket may, however, be pre- 
vented by the proviso contained in section 17 of said chapter, 
that — 

No ordinance, by-law or regulation now in force upon the island of 
Nantucket relating to the use or operation of motor vehicles shall be 
affected by the provisions of this act. 

I have not before me the ordinances or by-laws of the town of 
Nantucket, and am therefore unable to say whether this section 
is in force in Nantucket or not. 

In the case of Commonwealth v. Kingsbury, 199 Mass. 542, 
the constitutionality of chapter 203 of the Acts of 1907 and 
of the sections therein referred to came into question. Acting 
under the provisions of this statute the selectmen of Ashfield 
duly posted notices excluding automobiles from certain high- 
ways within their jurisdiction, and the defendant, disregarding 
the notices, drove his automobile upon and over one of the 
ways thus posted and from which automobiles were excluded. 
In its discussion of the constitutional right of the Legislature 
to ejiact such a law the court said : — 

Automobiles are vehicles of great speed and power, whose appearance 
is frightful to most horses that are unaccustomed to them. The use of 
them introduces a new element of danger to ordinary travellers on the 
highwaj'-s, as well as to those riding in the automobiles. In order to 
protect the public great care should be exercised in the use of them. 
Statutory regulation of their speed while running on the highways is 
reasonable and proper for the promotion of the safety of the pubhc. It 
is the duty of the Legislature, in the exercise of the police power, to con- 
sider the risks that arise from the use of new inventions applying the 
forces of nature in previously unknown waj^s. The general principle is 
too familiar to need discussion. It has been appKed to automobiles in 
different States with the approval of the courts. Commonwealth v. 
Botjd, 188 Mass. 79. Christij v. Elliott, 216 111. 31. People v. Schneider, 
139 Mich. 673. People v. MacWilliams, 86 N. Y. Supp. 357. 

It seems too plain for discussion that, with a view to the safety of the 
public, the Legislature may pass laws regulating the speed of such ma- 
chines when running upon highways. The same principle is appUcable 



I 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 187 

to a determination by the Legislature that there are some streets and 
ways on which such machines should not be allowed at all. In some 
parts of the State, where there is but little travel, pubhc necessity and 
convenience have required the construction of ways which are steep and 
narrow, over which it might be difficult to run an automobile, and where 
it would be very dangerous for the occupants if automobiles were used 
upon them. In such places it might be much more dangerous for trav- 
ellers with horses and with vehicles of other kinds if automobiles were 
allowed there. No one has a right to use the streets and public places 
as he chooses, without regard to the safety of other persons who are 
rightly there. In choosing his vehicle, every one must consider whether 
it is of a kind wliich will put in peril those using the streets differently 
in a reasonable way. In parks and cemeteries and private grounds, 
where narrow roads with precipitous banks are sometimes constructed 
for carriages drawn by horses, it has been a common practice to exclude 
automobiles altogether, chiefly because of the danger of their frightening 
horses. 

The general principle referred to was applied long ago to a different 
kind of vehicle, in Commonwealth v. Stodder, 2 Cush. 562, a case which 
relates to an ordinance of the city of Boston, prescribing the streets on 
which certain omnibuses might be run and excluding them from other 
streets. . . . 

The right of the Legislature, acting under the police power, to pre- 
scribe that automobiles shall not pass over certain streets or public ways 
in a city or town, seems to us well established both upon principle and 
authority. 

So far, then, as the power and authority of the Legislature 
is concerned, I am of the opinion that the proposed bill is 
within the provisions of the Constitution. 

It may, however, be urged that the power of the Legis- 
lature to regulate the use of highways cannot be delegated to 
a board of selectmen. This question also has been discussed 
by the Supreme Judicial Court. It received very full con- 
sideration in the case of Brodbine v. Revere, 182 Mass. 598. 
In that case the question at issue w^as as to the constitu- 
tionality of section 3 of chapter 288 of the Acts of 1894, con- 
ferring authority upon the Metropolitan Park Commissioners 
to make rules and regulations for the government and use of 
the roadways or boulevards under their care, "breaches whereof 
shall be breaches of the peace and punishable as such in any 



188 OPINIONS OF THE ATTORNEY-GENERAL. 

court having jurisdiction of the same." It was contended that 
this was an unconstitutional attempt to delegate legislative 
power. In speaking of this question the court said : — 

It is well established in this Commonwealth and elsewhere that the 
Legislature cannot delegate* the general power to make laws conferred 
upon it by a Constitution like that of Massachusetts. (Citing numerous 
authorities.) 

The court further said : — 

This doctrine is held by the courts almost universally. 

There is a well-known exception to it, resting upon conditions existing 
from ancient times in most of the older States of the Union, which the 
Constitutions of the States generally recognize, namely, the existence of 
town or other local governmental organizations which have always been 
accustomed to exercise self-government in regard to local police regula- 
tions and other matters affecting pecuharly the interests of their own 
inhabitants. On this account the determination of matters of this kind 
has been held to be a proper exercise of local self-government which the 
Legislature may commit to a city or town. Coimnonwealth v. Bennett, 
108 Mass. 27. Stone v. Charlcstoum, 114 Mass. 214. Opinion of the 
Justices, 160 Mass. 586. People v. Albertson, 55 N. Y. 50. Gloversville v. 
Howell, 70 N. Y. 287. State v. Morris County, 7 Vroom, 72. . . . It is 
very dear, where the people of a city or town have become so niunerous 
that the management of their municipal affairs can be conducted con- 
veniently only by a representative body like a city council, that municipal 
legislation, such as making ordinances and regulations as to local matters 
affecting the health, safety, and convenience of the people, may be in- 
trusted to the people's chosen representatives in a city government. 
Hence city councils are usually authorized to pass ordinances, as voters 
of towns adopt by-laws. In this Commonwealth legislation has gone 
further than this. Apparently on grounds of expediency amounting 
almost to necessity, the making of rules and regulations for the preserva- 
tion of the public health has been intrusted to boards of health in towns 
as well as in cities, and to a State board of health, and a violation of the 
rules estabhshed by city or town boards has long been and is now punish- 
able in the courts. . . . The validity of these statutes, which has long 
been recognized, stands upon one or both of two grounds. They may be 
considered as being within the principle permitting local self-government 
as to such matters, the board of health being treated as properly repre- 
senting the inhabitants in making regulations, which often are needed at 
short notice and which could not well be made, in all kinds of cases, by 
the voters in town meetings assembled. Perhaps some of these statutes 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 189 

may also be justified constitutionally on the ground that the work of the 
board of health is only a determination of details in the nature of adminis- 
tration, which may be by a board appointed for that purpose, and that 
the substantive legislation is that part of the statute which prescribes a 
penalty for the disobedience of the rules which they make as agents 
performing executive and administrative duties. 

Again the court says : — 

There is also a strong ground for the contention that the quoted lan- 
guage of the statute simply leaves to the board the administration of 
details which the Legislature cannot well determine for itself, and which 
it may therefore leave to the determination of a subordinate tribunal, 
and that the substance of the legislation is found in that part of the 
statute which prescribes punishment for disregard of the regulations so 
determined. 

This decision is cited with approval in Commonwealth v, 
Kingsbury, 199 Mass. 542. See, also, Crowninshield v. Crown- 
inshield, 187 Mass. 221; Nelson v. State Board of Health, 186 
Mass. 330. 

The authorities above cited seem quite sufficient to show the 
authority and power of the Legislature to control and regulate 
the use of the highways of the Commonwealth, and that the 
Legislature may in the exercise of its discretion confer upon 
towms or other local governmental organizations matters af- 
fecting peculiarly the interests of their own inhabitants and 
matters of local police regulation. 

I note further that the proposed bill, subject to a limitation 
as to general laws now or hereafter in force and as to the 
minimum fee to be charged for a license under it, leaves the 
amount of license fee and the provisions of the license to be 
fixed by the selectmen of Nantucket. Legislation of this precise 
character, so far as the fixing of license fee is concerned, was 
considered by the Supreme Judicial Court and its constitu- 
tionality sustained in the case of Boston v. Schaffer, 9 Pick. 415. 
In that case it was urged that a statute granting authority to 
the mayor and aldermen of the city of Boston to license 
theaters "on such terms and conditions as to them may seem 
just and reasonable" was unconstitutional; but the court held 



190 OPINIONS OF THE ATTORNEY-GENERAL. 

the statute to be valid and sustained the action taken by the 
maj'or and aldermen of Boston under its provisions. 

In the consideration of this proposed measure of legislation 
I must and do assume that the Legislature, in its passage (if 
it is passed), judged its enactment to be for the good and 
welfare of the Commonwealth and that the action of the se- 
lectmen of Nantucket, in determining the provisions of the 
license and the amount of the license fee, will be reasonable. 

I am of the opinion that the proposed bill, if enacted, will 
be constitutional. 



Trust Companies — Use of Word "Bank" as Part of 
Business Name. 

There is no statutory prohibition of the use of the word "bank" as a part of the 
business name of a trust company. 

Com^Sfoner ■ ^'^^ rcQUcst my Opinion upon the following question : — 

1914 

Marchsi. j^ tfust Company incorporated under the laws of this Commonwealth, 

and acting under chapter 116 of the Revised Laws, wishes to change its 
name so that it will be known as a bank and trust company. 

Will you please advise me if, in your opinion, a trust company by using 
the word "bank" as part of its name would be conflicting with the laws 
under which it is operating. Also would it be in conflict with chapter 
115 of the Revised Laws if a trust company which is operating under 
another statute should designate itself as a bank. 

Section 3 of chapter 116 of the Revised Laws, as amended 
b}^ section 1 of chapter 491 of the Acts of 1909, provides in 
part : — 

No person or association and no bank or corporation, except trust 
companies incorporated as such in this commonwealth, shall use in the 
name or title under which his or its business is transacted the words 
"Trust Company" even though said words may be separated in such 
name or title by one or more other words, or advertise or put forth a 
sign as a trust company or in any way solicit or receive deposits as such. 

Section 16 of chapter 590 of the Acts of 1908, as amended 
by section 4 of chapter 491 of the Acts of 1909, provides: — 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 191 

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 savings 
bank. Nor shaft such corporation, person, partnership or association 
make use of or circulate any written 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, sohcit 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 beUeve, that its business is that of a savings bank. 
Nor shall anj- person, partnership, corporation or association 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 name or title which contains the words "bank" or 
"banking," as descriptive of said business. 

The statutes seem to prohibit the use of the name "trust 
company" by any but a corporation that is in fact a trust com- 
pany, but also seem to contemplate the possible use of other 
words as a part of the name of the corporation in combination 
with the words "trust company." There is a real distinction 
between a bank and a trust company, although many of the 
functions of the two kinds of corporations are the same. I 
do not, however, find any prohibition of the use of the word 
"bank" in connection with the words "trust company," and 
am of the opinion that the word "bank" may be used as part 
of the corporate name with the words "trust company," so 
far as any strictly legal question is concerned. Whether as a 
matter of policy the use of the name ought to be permitted is 
not for the consideration of this department. 



192 OPINIONS OF THE ATTORNEY-GENERAL. 



Constitutional Law — Taxation of Industries — Ex- 
emptions. 

A law exempting manufacturing property from taxation for a term of years when 
authorized by local authorities would be unconstitutional. 

Jf^Repr^""^^ You havc requested my opinion upon the constitutionality 
^^91*4^^^^' of House Bill No. 1386, which amends chapter 12 of the 

' ' Revised Laws bj' inserting after section 6 thereof the following 

sections : — 

Section 7. The voters of any city or town may vote to exempt, or 
may authorize the city or town council or board of aldermen of such 
city or town to exempt from taxation for a period not exceeding ten years, 
such manufacturing property as may thereafter be located in said city 
or town in consequence of such exemption, and the land on which such 
property is located. 

Section 8. Property so exempted under the preceding section shall 
not, during such period of exemption, be liable to taxation while such 
property is used for the purposes for which it was so located. 

By the Constitution of the Commonwealth, Part Second, 
Chapter I., Section I., Article IV., the General Court is em- 
powered — 

To impose and levy proportional and reasonable assessments, rates, 
and taxes, upon all the inhabitants of, and persons resident, and estates 
luring, within the said commonwealth; and also to impose and lex-y reason- 
able duties and excises upon any produce, goods, wares, merchandise, 
and commodities, whatsoever, brought into, produced, manufactured, or 
being within the same; . . . 

And while the public charges of government, or any part thereof, shall 
be assessed on polls and estates, in the manner that has hitherto been 
practised, in order that such assessments may be made with equality, 
there shall be a valuation of estates within the commonwealth, taken 
anew once in everj^ ten years at least, and as much oftener as the general 
court shaU order. 

These are the only provisions of the Constitution directly 
affecting the subject of taxation. The Constitution contains 
certain provisions in regard to taxation for specific purposes, 
recognizing the importance of the public worship of God and 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 193 

of instruction in piety, religion and morality, and also in regard 
to the encouragement of literature and science, the diffusion 
of education among the people, and the promotion of general 
benevolence and public and private charity. 
It is said that — 

As taxation of the people may be imposed for these objects, property 
used for literary, educational, benevolent, charitable or scientific purposes 
may well be exempted from taxation. Such exemptions do not prevent 
the taxation of the people from being proportional and equal. (Opinion 
of the Justices, 195 Alass. 607.) 

The general purpose of the constitutional provision above quoted is to 
put the burdens of government equallj'^ upon all the people, in proportion 
to their ability to bear them. (Opinion of the Justices, supra.) 

To exempt a new industry from taxation, as provided in this 
proposed bill, would in some, and probably in many, instances 
result, in effect, in taxing an old established industry to aid in 
establishing a competitor in business. The exemption of any 
property from taxation results in the disproportionate taxation 
of other property in the same taxing district, and, as the Con- 
stitution permits only proportional taxation, all property within 
the Commonwealth which is owned and held in such a way 
that it ought to be available to its owner to increase his ability 
and enlarge his duty in defraying the expenses of the govern- 
ment must be subjected by law to the annual tax levy. 

The statute exempting property from taxation is unconstitutional 
unless it applies only !.o property alreadj^ taxed in some o^her way, or to 
property devoted to a pubhc or semi-public use, or to property of in- 
significant value and of such a character that it may be supposed to be 
owned by ever>^ one alike. (Nichols on Taxation in Massachusetts, § 39.) 

The result of my examination of the Constitution and the 
authorities under it is that I am of the opinion that this bill 
will, if enacted, be unconstitutional. 



194 OPINIONS OF THE ATTORNEY-GENERAL. 



Treasuker and Receiver-General — Bonds — Names of 

Purchasers. 

The Treasurer and Receiver-General is not required to disclose the names of pur- 
chasers of State bonds. 

T?(^surorand You Rsk my Opinion upon the following question: Is the 
GeneVal!^" State Treasurer required by any existing law, or is it proper 
Aprils. for him, to disclose the names and addresses of purchasers of 

tax-exempt State bonds? 

I have to say that while it might under some circumstances 
become the right of the State Auditor to demand such in- 
formation, when it would also become the duty of the Treas- 
urer and Receiver-General to give it, and while the Governor 
and Council would, in my opinion, have authority to demand 
and receive such information, I am clearly of the opinion that 
there is no law requiring that names of purchasers of tax- 
exempt bonds from the State Treasurer and Receiver-General 
be made public. 

Your question goes further and requests my opinion as to 
the propriety of making such disclosure. While this is some- 
what beyond the scope of my duties, I may say that, inasmuch 
as the bonds are tax-exempt, there seems to be no reason why 
the general public should be informed as to who the purchasers 
of these securities may be. The publication of a list of names 
and addresses of the purchasers could be useful only to inter- 
meddlers, curiosity seekers and those who are generally busy 
with other men's matters. I think no bonding house would 
disclose the names of its customers and that to publish a list 
of names would be to disturb the confidence that ought to 
exist between buyer and seller in a matter of this kind. If 
these bonds were taxable, and a question should arise as to 
giving information to local boards of assessors, an entirely dif- 
ferent question would be presented. 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 195 



Clerks of Court — Naturalization Fees. 

Clerks of court are entitled only to such portion of the naturalization fees as is 
necessary for additional clerical assistance, travel and other expenses while 
acting under the naturalization act. 

You have requested my opinion upon the following question: Tothe 

,,„ i-i -PI' 1 Controller of 

Have clerks or courts the right to retain tor their own use and County 

1 • • p 11 1 Accounts. 

benefit one-half of the naturalization fees, under the natural- isi* 



ization laws of the United States and the laws of this Common- 
wealth? 

Section 37 of chapter 165 of the Revised Laws provides 
that — 

The annual salaries of clerks (meaning clerks of courts) shall be in full 
compensation for all services rendered by them in the civil or criminal 
courts, to the county commissioners, 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. 

It is clearly the meaning of this section that the salaries of 
clerks of courts are to be in full compensation for their official 
services. This section is supplemented by chapter 253 of the 
Acts of 1908, which makes elaborate provision for the keeping 
of an exact account of all fees received by clerks of courts or 
by any assistant or other person in their offices or employment, 
for any acts done or services rendered in connection with their 
said offices, and provides that they shall, on or before the tenth 
day of each month, pay over to the treasurer of the county, 
or to such other officer as may be entitled to receive them, all 
fees received during the preceding calendar month, and shall 
render an account thereof under oath, but subject to the 
proviso that — 

The said clerks may retain that part of any moneys received by them 
under or by authority of the naturalization laws of the United States 
which thej^ shall certify under oath to the treasurers of their respective 
counties have actually been expended by them for clerical assistance, 
travel and other expenses, while acting under said laws. 

The United States naturalization act of June 29, 1906, 
provides — 



April 3. 



196 OPINIONS OF THE ATTOKNEY-GENEKAL. 

That exclusive jurisdiction to naturalize aliens as citizens of the United 
States is hereby conferred upon the following specified courts : 

United States circuit and district courts now existing . . : ; also all 
courts of record in any State or territory now existing, or which may 
hereafter be created, having a seal, a clerk, and jurisdiction in actions 
at law or equity, or law and equity, in which the amount in controversy 
is unlimited. 

It is further provided in section 13 of that act — 

That the clerk of each and every court exercising jurisdiction in 
naturalization cases shall charge, collect, and account for the following 
fees in each proceeding: 

The clerk of any court collecting such fees is hereb}^ authorized to 
retain one-half of the fees collected by him in such naturalization pro- 
ceeding; the remaining one-half of the naturalization fees in each case 
collected by such clerks, respectively, shall be accounted for in their 
quarterly accounts, which they are hereby required to render the Bureau 
of Immigration and Naturalization, and paid over to such Bureau within 
thirty days from the close of each quarter in each and everj'- fiscal 
year. . . . 

In addition to the fees herein required, the petitioner shall, . . . 
deposit with and pay to the clerk of the court . . . Provided, That the 
clerks of courts exercising jurisdiction 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. 

The question, then, is, may clerks of courts of this Com- 
monwealth having jurisdiction in naturalization cases, not- 
withstanding the provisions of our statute that their salaries 
shall be in full compensation for their services and that they 
must account for and pay over all fees as above set forth, 
retain for their own emolument one-half the naturalization 
fees received by them, less the amount actually paid by them 
for clerical assistance, travel and other expenses while acting 
under the naturalization laws? 

The apparent conflict of laws has been productive of some 
contrariety of opinion. Under date of May 24, 1907, Hon. 
Dana Malone, then Attorney-General, rendered an opinion on 
this question to the effect that — 



i 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 19< 

Clerks of courts cannot retain for their own use one-half of said nat- 
uralization 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 tliey perform the duties required by the United 
States naturalization act by virtue of their offices as clerks of courts of 
this Commonwealth, and not through appointment by the United States, 
and our law especiallj^ requires that all naturalization fees be paid over to 
the treasurer of the county. 

The same question arose in the case of Hampden County v. 
Robert 0. Morris, 207 Mass. 167, and the Supreme Judicial 
Court decided that clerks of courts may retain one-half of the 
naturalization fees received by them, first paying from these 
fees for all additional clerical force required in performing the 
duties imposed by the naturalization act. 

Under date of Jan. 5, 1914, the Supreme Court of the United 
States handed down a decision, covering the precise point under 
consideration, in the case of Mulcrevy et al. v. City and County 
of San Francisco. The plaintiff in error was elected county 
clerk and became ex officio clerk of the Superior Court, a court 
having jurisdiction of naturalization cases. The city charter 
under which he was elected provided that " the salaries provided 
in this charter shall be in full compensation for all services 
rendered." In its opinion the court said: — ■ 

On the merits the case presents no difficulty. It involves only the 
construction of the act of Congress already referred to above. We 
accept the State court's construction of the charter of the city and county 
of San Francisco. Indeed, its clearness leaves no room for construction. 
The salary it pro\'ides is declared to be "in full compensation for all 
services rendered.'" And it is provided that "every officer shall pay 
all moneys coming into his hands as such officer, no matter from what 
source derived or received, into the treasury of the city and county." 
The provisions are complete and comprehensive, and express Mulcrevy's 
contract with the city, the performance of which his office imposed upon 
him; and, of course, the fees received by him in naturalization pro- 
ceedings, because he was clerk of the Superior Court, were in compensa- 

I tion for official acts, not personal acts. 

' ... If it be granted that he was made an agent of the national gov- 
ernment, his relations to the city were not thereby changed. He was 
still its officer, receiving fees because he was — not earning them other- 



198 OPINIONS OF THE ATTORNEY-GENERAL. 

wise or receiving them otherwise, but under compact with the city to 
pay them into the city treasury within twenty-four hours after their 
receipt. 

... He was given office accommodations, clerks to assist him, and 
yet contends that notwithstanding such equipment and assistance, 
notwithstanding his compact, he may retain part of the revenues of 
his office as fees for his own personal use. We cannot yield to the con- 
tention; nor do we think the act of Congress compels it. The act does 
not purport to deal with the relations of a State officer with the State. 
To so construe it might raise serious questions of power, and such ques- 
tions are always to be avoided. We do not have to go to such lengths. 
The act is entirely satisfied without putting the officers of a State in 
antagonism to the laws of the State — the laws which give them their 
official status. It is easily construed and its purpose entirely accom- 
plished by requiring an accounting of one-half of the fees to the United 
States, leaving the other half to whatever disposition may be provided 
by the State law. Counsel cite some State decisions which have con- 
strued the act of Congress as giving a special agency to the clerks of the 
State courts, and as receiving their powers and rights from the national 
enactment. The reports of the Department of Commerce and Labor 
are quoted from, which, it is contended, exhibit by their statistics and 
recommendations the necessity of national control. State decisions 
expressing a contrary view are frankly cited. This contrariety of opinion 
we need not further exhibit by a review of the cases. We have expressed 
our construction of the act, and it is entirely consonant with the purpose 
of the act and national control over naturalization. 

The Supreme Judicial Court of this Commonwealth has 
always recognized the Supreme Court of the United States as 
the final arbiter as to the meaning of Federal statutes and as 
to questions arising under the Federal Constitution. Com- 
monwealth V. People's Express Co., 201 Mass. 564. 

This principle is now universally accepted throughout the 
country, and in one form or another has received the sanction 
of our Supreme Judicial Court in numerous instances. Brayiiard 
V. Marshall, 8 Pick. 194; Sims' s Case, 7 Cush. 285; Eliot v. 
McCormick, 144 Mass. 10; Chesley v. Naiitasket Beach Steam- 
boat Co'., 179 Mass. 469; Opinion of the Justices, 207 ]\Iass. 
601; Opinion of the Justices, 208 Mass. 619; Commonwealth v. 
Phelps, 210 Mass. 78. 

A decision of the Supreme Court of the United States as to 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 199 

the meaning of a Federal statute is a declaration of the law 
of the land, binding upon judges of State courts and upon 
individual citizens, and stands as such until overruled or 
modified by the court that made it, or until the law is changed 
by the legislative arm of the Federal government. 

I am therefore of the opinion that clerks of courts are not 
entitled to retain any portion of the naturalization fees that 
may be paid to them, except, as specified in the statute, to pay 
for additional clerical assistance, travel and other expenses 
while acting under the naturalization act. 



Constitutional Law — Grade Crossings — Powers of 

Legislature. 

The Legislature has authority to fix the time for the filing of a report by a grade 

crossing commission. 

The Senate has transmitted to me an order which reads as To the Senate. 

1914 
follows: April 3 . 

Whereas, There is pending in the Senate a resolve to expedite the 
filing of a report relative to the abolition of the grade crossing in the 
center of the town of Winchester, printed as House Document No. 214; 
and 

Whereas, There is a question as to whether this resolve is not an inter- 
ference by the legislative power with the judicial power, within the terms 
of Article XXX of the Declaration of Rights; it is therefore 

Ordered, That the opinion of the Attorney-General be requested by 
the Senate as to whether this resolve, if enacted, will be constitutional. 

The powers and duties of the court with relation to the 
pending grade crossing matter — 

belong to that class not strictly judicial, but partaking both of the ju- 
dicial and the executive character, like those of lajdng out highwaj^s and 
assessing damages therefor, superintending the administration and 
distribution of the estates of insolvent debtors, and many others which 
might be named, the exercise and control of which may be vested by 
the Legislature at its discretion, unless restrained by specific constitu- 
tional provisions, either in judges appointed by the Governor and holding 
during good behavior, or in commissioners or other officers appointed or 



200 OPINIONS OF THE ATTORNEY-GENERAL. 

elected in such manner and holding for such terms as the Legislature 
may prescribe. {New London Northern R. R. v. Boston & Albany R. R., 
102 Mass. 386, 387.) 

As the whole subject of the crossing of highways by railroads can from 
time to time be regulated by the Legislature, the Legislature can, even 
after a final decree has been rendered, make other provisions, and 
require the crossings to be constructed in a manner different from that 
estabhshed by the decree. The Legislature can amend the statutes 
under which this proceeding has been commenced, and if the amended 
act is made appUcable to the pending proceeding and is valid, the court 
in rendering a final decree must proceed in accordance with the statutes 
as amended. {In re Northampton, 158 Mass. 299, 302.) 

If it is to be treated as special legislation prescribing new rules and 
additional provisions for making a public improvement in substitution 
for those under which the court and commissioners have been acting, it 
was within the power of the Legislature to enact it. {Providence Steam- 
boat Co. V. Fall River, 183 Mass. 535, 540.) 

Thus the Legislature has full jurisdiction of grade crossing 
matters, except that it may not direct what order or finding 
shall be made by the court or a commission. But the Legis- 
lature may make an order or finding which the court or a 
commission could have made in a matter pending and may 
direct the court to proceed as though the court or commission 
had made the order or finding. This is a fine distinction, as 
was pointed out in the dissenting opinions in the above quoted 
cases. Nevertheless, it is apparently law. 

A statute setting the time for the report of the commission 
may be construed as an amendment to, or as a substitute for 
part of, section 36 of Part L of chapter 463 of the Acts of 
1906, and as such may be supported under the principles laid 
down in the above quoted cases. 

It is therefore my opinion that the resolve in question would 
be constitutional. 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 201 



ScHOOLiiousEs — Use for Municipal and Other Purposes 
— Liability for Damages. 

No liability attaches to a citj' or town for damages caused by defects or negligence 
in or around public school property while said property is used strictly for 
municipal purposes. 

You have requested my opinion on the legality, advisability To the 
and value of addins; to section 1 of House Bill No. 803 the Education. 

. 1914 

following clause: "such use shall not be construed to impose Apru e . 
any additional liability on the city or town," so that this 
section would read : — 

For the purpose of promoting the usefulness of the public school proi?- 
erty the school committee of any city or to^vn may conduct such educa- 
tional and recreation activities in or upon school property under its 
control, and shall allow the use thereof by individuals and associations, 
subject to such regulations as the school committee shall establish, for 
such educational, recreation, social, civic, philanthropic and similar 
purposes as the committee may deem to be for the interest of the com- 
munity, provided that such use shall not interfere or be inconsistent 
with the use of the premises for school purposes. Such use shall not 
he construed to impose any additional liability on the city or town. 

A city or town is not answerable in damages for the acts or 
neglect of its public officers in the discharge of their official 
functions, nor for injuries to individuals caused by defects or 
negligence in or around a schoolhouse or yard, because the 
maintenance of schools is a public function. 28 Cyc. 1308. 

In a case where the plaintiff fell and was seriously injured by 
reason of an unsafe staircase in a schoolhouse, the defendant 
was held not liable, for the reason last stated. Hill v. Boston, 
122 IMass. 344. 

Similar decisions are to be found in Sullivan v. Boston, 120 
Mass. 540, and Bigelow v. Randolph, 14 Gray, 541. 

But where a city or town lets for hire a building erected for 
municipal purposes, it is liable for an injury caused by a defect 
or want of repair in the building, or for the negligence of its 
agents or servants in the maintenance of the building. 28 Cyc. 
1308. 



202 OPINIONS OF THE ATTOENEY-GENERAL. 

So in the case of Little v. Holyoke, 177 Mass. 114, the city 
was held liable in an action for personal injuries caused by the 
plaintiff falling down a flight of stairs in a hall of the defendant 
city. The city occasionally let the hall for public gatherings, 
and on the evening in question the hall was let for the purposes 
of an entertainment to be given by the lessee. 

Of similar import is the case of Warden v. New Bedford, 131 
Mass. 23. 

The proposed legislation apparently contemplates the letting 
of public school property for hire, subject to such regulations 
as the school committee shall establish, for such educational, 
recreation, social, civic, philanthropic and similar purposes as 
the committee may deem to be for the interest of the com- 
munity; and the question arises, can a city or town acting 
under the provisions of this act be exempted from liability for 
an injury caused by a defect or want of repair in the building 
or other property let, or by act or neglect of its servants and 
agents? To state the question another way, can the Legisla- 
ture exempt cities and towns from liability for injuries incurred 
during the use of school buildings for some purposes? 

The Constitution of Massachusetts guarantees a certain 
remedy for all injuries or wrongs. Declaration of Rights, 
Art. XI. Statutes in conflict with this article necessarily are 
void. Hunt v. Lucas, 99 Mass. 404. 

No question of vested rights is involved. We have not 
here the question as to whether vested rights of action may be 
interfered with, but rather, whether rights of action may be 
prevented from accruing. Article XI. of the Constitution, 
above cited, is merely an assertion of the old common-law 
rule that for every wrong there must be a remedy. As I have 
already stated, one of the exceptions to this rule is that a 
municipality is not liable for injuries caused by a municipal 
use of municipal property. For the Legislature to exempt 
municipalities further would be in conflict with Article XI. of 
the Declaration of Rights. To exempt municipalities and not 
exempt private concerns doing the same business of renting 
halls would be an unconstitutional discrimination. 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 203 

Is the contemplated use strictly a municipal use? If so, 
exemption from liability by statute is unnecessary. If not a 
municipal use, exemption is impossible. 

It is respectfully suggested that the bill be so phrased as to 
make it clearly appear that the use of school property per- 
mitted by it shall be municipal. The addition of the proposed 
clause may tend to support this construction. 



Labor — Construction of Public Works. 

Under St. 1909, c. 514, § 21, the phrase "construction of public works" refers to 
actual building operations and not to the work of preparing material. 

You have requested my opinion on the following question : — to the 

Commissioner 

A general contractor, engaged in the construction of a public building ^^^i^^^' 
for one of the cities of the Commonwealth, has made a contract for the ^p"^ ^ - 
special preparation of a portion of the material to be used in the con- 
struction of the said building with a subcontractor from outside the 
Commonwealth, who was the lowest bidder. The work on the said 
material in adapting it for use in the building is being done outside the 
Commonwealth, and by persons not citizens of Massachusetts. The 
general contractor knew at the time the contract was made that the 
work was to be done in this way and by such persons. Moreover, the 
contract with the subcontractor contains no provision that in the em- 
plojinent of mechanics or laborers preference shall be given to citizens 
of Massachusetts or citizens of the United States. 

Will you kindly advise whether or not in your opinion the above facts 
constitute a violation of the Acts of 1909, chapter 514, section 21? 

Section 21 of chapter 514 of the Acts of 1909 reads as 
follows : — 

In the employment of mechanics and laborers in the construction of 
public works by the commonwealth, or by a county, city or town, or by 
persons contracting therewith, preference shall be given to citizens of 
the commonwealth, and, if they cannot be obtained in sufficient numbers, 
then to citizens of the United States; and every contract for such works 
shall contain a provision to this effect. Any contractor who knowingly 
and wilfully violates the provisions of this section shall be punished by 
a fine of not more than one hundred dollars for each offence. 



204 OPINIONS OF THE ATTORNEY-GENERAL. 

The question hinges on the meaning of the words "con- 
struction of pubHc works." This phrase was interpreted by 
Attorney-General Dana Malone, in 1906, to include only the 
actual building operations. III. Op. Atty.-Gen. 9. The literal 
meaning of the word "construction" is "putting together." 

An early precedent is found in 1 Kings VL, VII., in which 
it is stated that King Solomon's Temple "was built of stone 
made ready at the quarry; and there was neither hammer nor 
axe nor any tool of iron heard in the house, loliile it ivas in 
building. " 

Your very letter of inquiry refers to the contractor as engaged 
in the construction of the building and to the subcontractor as 
engaged in the preparation of material to be used in the con- 
struction. 

I am 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 facts as stated in your 
letter do not constitute a violation of the statute. 



COMMISSIONEKS ON FISHERIES AND GaME — EXPENSES. 

Traveling expenses incurred on strictly official business, but no other expenses, 
may be allowed the Commissioners on Fisheries and Game. 

JaheCommo°n- ^^ your letter requesting my opinion as to whether certain 
^1914^' bills for expenses presented for allowance by members of the 

^_^^- Commission on Fisheries and Game should be allowed, you 

state that "in the case of one of the members making regular 
trips from his home by way of Highland station to Boston he 
seeks to charge the State for fares between his home and his 
Boston office, where he transacts private business, on the 
days on which he performs any business for the State;" 
that "another contention of the Commission is that as their 
duties are not all performed in the office in the State House, 
they are entitled to traveling expenses from their homes to 
Boston on days when the State's business requires them to 
visit any place in Boston outside of the office in the State 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 

House;" and further, that certain members of the Commission 
on Fisheries and Game "visit the State House almost daily, 
and contend that should there be business of the commission 
requiring them to visit any other place in Boston than the 
office in the State House, they should be allowed expenses for 
traveling from their homes, and also for their midday meal on 
those days." 

In many instances special provision has been made for the 
payment of traveling and other expenses necessarily incurred 
in the service of the Commonwealth. Thus it was provided 
that each member of the former Board of Cattle Commissioners 
should receive ". . . his actual travelling expenses which have 
been necessarily incurred;" that members of the State Board 
of Charity shall receive ". . . their travelling and other neces- 
sary expenses." So, too, that each member of the Civil Service 
Commission shall be paid ". . . his travelling and other ex- 
penses incurred in the performance of his official duties." 

The law covering the payment of expenses of members of 
the Commission on Fisheries and Game is found in section 54 
of chapter 6 of the Revised Laws, and the rule governing the 
payment of such expenses is found in the words, "shall be 
allowed their actual reasonable expenses incurred in the per- 
formance of such duties." 

No case under this provision of the statute ■ has arisen for 
determination by the Supreme Judicial Court of this Common- 
wealth. The case of Richardson v. State, involving a similar 
question, was decided by the Supreme Court of Ohio in 1902. 
The purpose of the action was to determine whether money 
paid to Richardson out of the county treasury as compensation 
for his services as county commissioner was illegally paid, and 
if so, to recover judgment therefor. The Ohio statute is as 
follows : — 

Each county commissioner shall be allowed three dollars for each day 
that he is employed in his official duties, and five cents per mile for his 
necessary travel, for each regular or called session, not exceeding one 
session each month, or twelve in any one year, and five cents per mile 
when traveling within their respective counties on official business, to 



205 



206 OPINIONS OF THE ATTORNEY-GENERAL. 

be paid out of the county treasury on the warrant of the county auditor; 
. . . and when necessarily engaged in attending to the business of the 
county pertaining to his office under the direction of the board, and 
when necessary to travel on official business out of his county, shall 
be allowed, etc. 

In its decision of the case the court said: — 

It must be conceded that the $3 per day allowed the commissioner 
is the limit of his compensation for his day's work, in whatever way it 
may be performed in the discharge of his official duties. He cannot 
lawfully claim that the county is also bound to pay his board or other 
personal expenses. And the "mileage" allowed him is intended to 
compensate him for expenses of his travel on official business. ... To 
make such expenses an additional burden on the public funds would 
require a plain and unequivocal provision of the statute. An intention 
to do so will not be inferred. . . . The expenses authorized to be paid 
a commissioner under the provision of the statute in question are, we 
think, official expenses only, as distinguished from those which pertain 
to his personal comforts and necessities. . . . The purpose of the pro- 
vision was to reimburse him when, in the language of the statute, the 
money had been "actually paid in the discharge of his official duty." 
... It is a fair inference that, if it had been intended to reimburse the 
commissioner for expenditures of this character, the Legislature would 
have expressed that intention in plain terms. It is well settled that the 
compensation of public officers cannot be enlarged, by implication, 
beyond the terms of the statute. 

The last sentence quoted from the opinion of the Ohio court 
undoubtedly states correctly the rule of law to be applied in 
cases like those stated in your letter of inquiry. A member of 
this commission, traveling from his place of residence to his 
own office or other place where he regularly carries on his own 
business, and to which he is going for that purpose, cannot be 
said to be traveling on the business of the Commonwealth so as 
to enable him to charge traveling or other expenses; and this 
is so even though he may during the day transact some item of 
official business at his own place of business. The expense is 
not incurred in the performance of his official duty; and the 
same rule of necessity applies to your question in regard to 
charges made for meals at the place of residence or place of 
business of members of the commission. Nor, in my opinion, 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 

are members of the commission who receive an annual salary 
or its equivalent, when on duty in Boston, and who happen in 
the course of their official duties to have to go to some part of 
the city other than the office provided by the Commonwealth 
for their use, entitled by that fact to charge to the Common- 
wealth the expense of their midday meals. It is to be pre- 
sumed that they would have the midday meal if they remained 
in the office provided by the Commonwealth. It is reasonably 
apparent that the expense of this meal is not increased by 
reason of the fact that their duties call them outside of the 
office provided by the Commonwealth. I think, however, 
they may properly charge as traveling expenses trolley fares 
paid out by them in going about the city on strictly official 
business. 

It is my opinion that the items specified in your letter of 
inquiry should not be allowed. 



207 



Constitutional Law — Regulation of Sale of Tickets to 
Places of Amusement. 

It is not within the constitutional power of the Legislature to provide regulations 
for the sale of tickets to places of amusement. 

You have requested my opinion as to whether the substitute Tothe 
suggested by Mr. Caro for House Bill No. 236 relative to the Mercantile 
sale of tickets of admission to places of amusement would be i9i4 



constitutional. Mr. Caro's bill reads as follows: — 

It shall be a condition of any license hereafter granted by any city or 
town, or by any other public authority, for any public entertainment, 
that tickets of admission to the same shall not be sold to any dealer in 
such tickets, or to any other person, with the intent or knowledge that 
such tickets shall be resold to individual purchasers; or with the intent 
or knowledge that such tickets shall be disposed of in any manner at a 
price exceeding the price for which they were sold, or exceeding the 
price advertised for such tickets by the person, firm, or corporation 
issuing the same. If the said condition is violated by anj^ licensee, the 
license shall thereupon be revoked by the authority granting the same; 
and it is hereby made the duty of the licensing authority to see that the 
said condition is complied with. 



April 10. 



208 OPINIONS OF THE ATTORNEY-GENERAL. 

It was ruled by my predecessor, Hon. James M. Swift, in 
* an opinion to the House Committee on the Judiciary dated 

Feb. 15, 1912, 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 Legis- 
lature in respect to public morals or safety, under the pohce power, the 
right or regulation cannot be extended to the sale of tickets of admission 
to places of amusement. (III. Op. Atty.-Gen. 491, 492.) 

He quotes from the leading case on the subject as follows : — 

The sale of a theatre ticket at an advance upon the original purchase 
price, or the business of reselling such tickets at a profit, is no more 
immoral, or injurious to public welfare or convenience, than is the sale of 
an ordinary article of merchandise at a profit. {Ex parte Quarg, 149 
Cal. 79, SI.) 

The Legislature has certain powers of regulation and has not 
certain other powers of regulation, and the distinction between 
these two sorts of powers remains the same, regardless of the 
manner in which the Legislature seeks to enforce them. Direct 
statutory prohibition or indirect prohibition by means of con- 
ditions in licenses is merely a method of enforcement, and does 
not go to the root of the question of legislative powers. 

It is therefore my opinion that the proposed regulation of 
the sale of tickets to places of amusement is unconstitutional, 
regardless of the method by which its enforcement is sought. 



Insurance Company — Investments — Pecuniary Interest 

OF Officers. 

A person who has an interest in real estate, but solely as trustee for another, may 
lawfully serve on the investment committee of an insurance company which 
places a loan on said real estate. 

ii?surfnce You requcst my opinion upon the following question : — 

Commissioner. 

Aprino. ^^ ^ person as a trustee holds a parcel of real estate which, with certain 

other parcels, is exchanged for stock in a corporation which was organized 
for the purpose of acquiring such land, and the directors of an insurance 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 209 

companj^ one member of which is the aforesaid trustee, who is also a 
member of the insurance company's finance committee, negotiates a 
mortgage loan with said real estate corporation,- can that director and 
member of the finance committee of the insurance company be held to 
have acted in violation of the statute (St. 1907, c. 576, § 26, par. 4)? 

That paragraph provides 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 a'ny authority in the investment or 
disposition of its funds, shall accept, or be the beneficiary of, either di- 
rectly or remotely, any fee, brokerage, commission, gift or other .con- 
sideration for or on account of any loan, deposit, purchase, sale, payment 
or exchange made by or in behalf of such company, or be pecuniarily 
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. 

An examination of the law apart from the statute may be in 
some degree helpful in determining the effect of the statute. It 
is settled beyond question that the directors of corporations are 
bound in their official capacity to act in entire good faith. 
They are to be regarded as trustees for the shareholders and 
are held to a strict fidelity to their trust. They are bound to 
exercise their powers for the benefit of the corporation only 
and cannot deal for themselves and for the corporation in one 
and the same transaction. A director cannot with propriety 
vote in the board of directors upon a matter affecting his own 
private interest any more than a judge can sit in his own case. 
1 It has been held by some courts that a director cannot contract 
with his company and that such contracts are void; and 
:ourts that have not gone to this extreme have held that con- 
tracts between directors and corporations, though not void, are 
ilways to be subjected to the closest scrutiny and are voidable 
mless made in that entire good faith which the law demands 
•f this species of fiduciary. Nye v. Storer, 1G8 Mass. 53; 
Varren v. Para Rubber Shoe Co., 166 Mass. 97. 

In the case you have stated the director was not a party to 
he contract and cannot be said to have accepted or to have 



210 OPINIONS OF THE ATTOKNEY-GENERAL. 

been the beneficiary of, either directly or remotely, any fee, 
brokerage, commission, gift or other consideration for or on 
account of the loan. It is true that, by reason of his position 
as a director of the insurance company and as a member of its 
finance committee, he was a factor in determining whether and 
the terms upon which this loan should be made, but you state 
that he held the real estate in question as trustee, and if that 
is so, in exchanging his real estate for stock in a corporation, 
he simply changed the form of the trust property. It hardly 
need be said that a trustee cannot, by a sale or exchange of 
trust property, acquire property of his own. If he exchanged 
the real estate which he held in trust for stock in a real estate 
corporation, the stock which came to his hands in the course 
of this transaction was impressed with the same trust under 
which he held the real estate. He was not an officer of the 
real estate corporation, and any gain or benefit accruing to the 
stock of that corporation in his hands was not at all to his 
personal profit or benefit but for the benefit of his cestui que 
trust; so I do not see how it could be held that the trustee 
was pecuniarily interested in the loan either as borrower, prin- 
cipal, co-principal, agent or beneficiary. 

The statute to which you refer is penal and is to be con- 
strued strictly, and even though he held the stock in his own 
right, it is very difficult to see how he could be held liable under 
this statute. 

I am of the opinion that your inquiry must be answered in 
the negative. 

i' 

Surety Companies — Bonds — Renewals. 

A surety company bond may be renewed and its term extended by a separate 
instrument properly executed. 

Treasurer and ^^^ havc rcqucstcd my opiuiou as to whether or not certifi- 
Genor^L catcs of renewal furnished and executed by a bonding com- 

Aprii 11. pany that is surety on a bond executed and filed in accordance 

with the requirements of chapter 656 of the Acts of 1910 are 

adequate and sufficient to renew a bond. 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 211 

Chapter 656 of the Acts of 1910 relates to persons, partner- 
ships, associations or corporations engaged in the collection 
business and conducting a collection agency, bureau or office 
in this Commonwealth and requires that every such person, 
partnership, association or corporation shall file a bond with 
the Treasurer and Receiver-General. 

Your query is whether the certificate of renewal is sufficient 
to renew and keep in force a bond the term of which has ex- 
pired or is about to expire. 

In its popular sense the word "renew" means "to refresh, 
revive or rehabilitate an expiring or declining subject, but not 
appropriate to describe the making of a new contract or the 
creation of a new existence; to re-establish a particular con- 
tract or another period of time; to restore to its former con- 
ditions; to make again; to make over, to re-establish; or to 
rebuild." 34 Cyc. 1331. The word "renewal" in its broadest 
sense means "that which i^ made anew or re-established; a 
change of something old for something new; the establish- 
ment of the particular contract for another period of time; 
imparting continued or new force and effect; the substitution 
of a new right or obligation for another of the same nature." 

In the case of Strouse v. American Credit Indemnity Co., 91 
Md. 244, 257, the court in deciding a question involving this 
point used this language: — 

A renewal of the certificate of the United States Credit System Com- 
pany means the same certificate with all the stipulations contained for 
another year, or another certificate to cover another year identical in 
\ every word and figure with the certificate it succeeded. 

' I would suggest that in the use of a certificate of renewal 
the principal as w^ell as the surety on the bond be made a 
oarty. The form of the certificate of renewal in question did 
lot accompany your inquiry, and I am therefore unable to 
3ass upon its sufficiency, but I have no doubt that a bond 
nay be renewed and its term extended to cover such period 
>f time as may be agreed upon by a separate instrument prop- 
•rly executed. 



212 OPINIONS OF THE ATTORNEY-GENERAL. 



Cities and Towns — Public Documents. 

Cities and towns have no authority to dispose of such books, reports and laws 
as have been received from the Commonwealth under St. 1908, c. 142, 
§§ 1 and 2. 

mts^k)nCT''S ^'oii ask my opinion upon the following question: Have 

"914 ^'^°^ ^ cities or towns authority to dispose of the copies of the series 
of public documents which they do not care to retain? 

Sections 1 and 2 of chapter 142 of the Acts of 1908 are as 
follows : — 



April 13. 



Section 1. Each cit}^ and town shall provide a suitable place, or 
places, to be approved by the commissioner of public records, for the 
preservation and convenient use of aU books, reports and laws received 
from the commonwealth; and for every month's neglect so to do shall 
forfeit ten dollars. 

Section 2. Said books, reports and laws shaU be in the custody or 
control of the city or town clerk, unless the city council or selectmen 
shall, by vote, designate some other officer, the towTi counsel or other 
person to have said custody or control of either all or part of the same. 

This chapter makes it the duty of our cities and towns to 
take care of all the books, reports and laws that may be be- 
stowed upon them by the Commonwealth, and requires of them 
the task of providing a suitable place for the preservation and 
convenient use of all such books, reports and laws. The 
authority conferred and the duty created by this statute are to 
preserve and keep. The only relief against this burdensome 
situation that I have been able to find is contained in chapter 
422 of the Acts of 1908, wherein it is enacted that — 

In case a city or town at any annual city or town election shall vote not 
to receive the series of public documents, and the commissioner of public 
records shall report to the secretary of the commonwealth that in his 
opinion such city or town is unable to make suitable provision for the 
care and use of such documents, he may discontinue sending such docu- 
ments to such citj" or town. 

I regret to say that I am forced to the opinion that cities and 
towns have no authority to dispose of the books, reports and 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 213 

laws specified in chapter 142 of the Acts of 1908, above quoted, 
in any other way than to provide a suitable place for their 
preservation and convenient use, except as provided by chapter 
422 of the Acts of 1908. 



Civil Service — Sealer of Weights and Measures in 

Lowell. 

The sealer of weights and measures in Lowell is not subject to civil service rules. 

You have requested my opinion upon the following ques- xotheCivii 

Service Cotn- 

tions: — 



F>rf<t. — Was the enactment of chapter 645 of the Acts of 1911 in effect 
a repeal of the provisions of chapter 382 of the Acts of 1909, and, there- 
fore, does it exempt this position in the city of Lowell from the operation 
of the civil service law and rules? 

Second. — Does the fact that by said section 39 of chapter 645 of the 
Acts of 1911 providing for the election bj' the municipal council of a sealer 
of weights and measures exempt the office from civil service classification 
in view of the provisions of section 9 of chapter 19 of the Revised Laws 
above referred to? 

Section 9 of chapter 19 of the Revised Laws exempts from 
civil service classification judicial officers and all officers elected 
by the people or whose appointment is subject to confirmation 
I by a city council. 

Under the authority conferred by chapter 382 of the Acts 
'of 1909 the Civil Service Commission prepared and promul- 
gated a rule of classification which became effective Sept. 1, 
1909, and reads as follows: — ■ 

Rule 7. 



Class 6. — -All principal or assistant sealers of weights and measures 
lolding office by appointment under any city, or any town of over ten 
housand inhabitants, whether such officers are heads of principal 
lepartments or not, and also the inspectors of weights and measures of 
he Commonwealth. 



mission. 

1914 
April 13. 



214 OPINIONS OF THE ATTORNEY-GENERAL. 

By section 37 of chapter 645 of the Acts of 1911, which 
is an act to amend the charter of the city of Lowell, it is pro- 
vided : — 

There shall be the following administrative officers, who shall perform 
the duties prescribed by law for them, respectively, ... as the municipal 
councU may prescribe, ... a sealer of weights and measures. 

Section 39 of the last-mentioned chapter provides that — 

The municipal council shall have the power to elect the administrative 
officers named in section thirty-seven. . . . 

Section 66 of said chapter provides : — 

All special acts and parts of special acts inconsistent herewith are 
hereby repealed, and no general act or part of a general act inconsistent 
herewith shall hereafter apply to the city of LoweU. . . . 

The provisions of Rule 7, above quoted, relate to sealers of 
weights and measures holding office by appointment, while the 
charter of the city of Lowell makes the office of sealer of 
weights and measures in that city elective. If we give to the 
rule made by the Civil Service Commission the force and effect 
of law, the provision of the charter is a later enactment, mak- 
ing a special and exceptional provision in regard to the office 
of sealer of weights and measures in the city of Lowell, and 
apparently is intended to deal with the whole subject of elec- 
tion to the office of sealer of weights and measures in that city. 
The provisions of the chapter are also entirely inconsistent with 
the civil service rule. It is my opinion, therefore, that the 
charter of the city of Lowell, by reason of its special provisions, 
exempts the position of sealer of weights and measures in that 
city from civil service classification. 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 215 

NS TITUTIONAL LaW — TRADING Sta:\IPS — EXCISE TaX — • 

License Fees. 

A law requiring the payment of a license fee of $6,000 per annum by any firm 
furnishing trading stamps with any sale of goods would be unconstitutional. 

You have requested my opinion as to the constitutionaHty To the 

„ _-^ T-»*ii -v' 1 /-> J o • 1 1 a I i ^ • 1 r. Committee"on 

or House Bill Ao. 1543, entitled An Act relative to the use of Mercantile 
stamps, coupons and similar devices for or with the sale of ■^^^^^\^ 
goods, wares and merchandise." , 

This bill provides that every person, firm or corporation 
furnishing stamps, coupons, tickets, certificates, cards or other 
similar devices to any other person, firm or corporation to use 
in, with or for the sale of any goods, wares or merchandise 
shall be required to obtain annually "a separate license from 
the auditor of each county wherein such furnishing or selling 
or using shall take place, for each and every store or place of 
business in that county owned or conducted by such person, 
firm or corporation, from which such furnishing or selling or in 
which such using shall take place." By section 2 it is pro- 
vided that the sum of $6,000 per license shall be paid, and, in 
addition to this, that every person, firm or corporation who 
shall use any stamps, coupons, tickets, certificates, cards or 
other similar devices in, with or for the sale of any goods, 
wares or merchandise, entitling the purchaser receiving the 
same to procure from any person, firm or corporation any 
goods, wares or merchandise free of charge or for less than the 
retail market price thereof, must also obtain a like license and 
pay a license fee of $6,000 a year. 

It would appear that the provisions of this bill are so broad 
that a person who receives any stamps, coupons, tickets or 
other similar devices and uses them for the purpose of pro- 
curing any goods, wares or merchandise is also required to 
procure a similar license from the county auditor and to pay 
the license fee of $6,000. 

The taxing power vested in the Legislature by the Consti- 
tution is contained in section IV. of article I. of chapter I. and 
is expressed in the following language : — 



216 OPINIONS OF THE ATTORNEY-GENERAL. 

Full power and authority are hereby given and granted to the said 
general court ... to impose and levj^ 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 produce, goods, 
wares, merchandise, and commodities, whatsoever, brought into, pro- 
duced, manufactured, or being within the same. 

It is apparent that the methods of taxation provided by the 
Constitution are, first, by proportional and reasonable assess- 
ments, rates and taxes upon the inhabitants of and persons 
resident and estates lying within the Commonwealth; and 
second, as the State may not since the adoption of the Federal 
Constitution levy duties on imports, by reasonable excises upon 
any produce, goods, wares, merchandise and commodities. 

That the constitutionality of the proposed measure cannot 
be sustained under the constitutional provision in regard to the 
levy of proportional rates and taxes upon the inhabitants and 
persons resident and estates lying within the Commonwealth is 
so evident as to render comment or discussion unnecessary. 

The question then arises. Can this proposed bill be sustained 
as an exercise of the power to levy reasonable excises? 

The Constitution places two limitations upon the authority of 
the Legislature to levy excise taxes: (1) that they must be 
reasonable, and (2) that they may be levied only upon produce, 
goods, wares, merchandise and commodities. Portland Bank v. 
Apthorp, 12 Mass. 252. 

Clearly, the use of stamps, coupons or certificates referred to 
in the bill before me, if subject to an excise tax under the pro- 
vision of the Constitution last above quoted, is so subject 
because it falls under the head of "commodities," and the 
question to be determined is whether the method of transacting 
business with or by the use of stamps, coupons, certificates or 
other similar devices is a commodity. 

The Legislature of 1904 passed an act imposing an excise tax 
on the business of selling, giving or delivering trading stamps, 
checks, coupons or other similar devices, and the case of O'Keeffe 
V. Somerville, 190 Mass. 110, was an action brought to test the 
validity of that statute. The plaintiff in that case used trading 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 217 

stamps in his business and paid under protest to the city of 
Somerville the excise tax provided by the statute, and then 
brought suit to recover the amount so paid. The Supreme 
Judicial Court in its decision in that case said: — 

The first and principal question before us is whether the right to con- 
duct the business, in the manner described in the first section (of that 
statute) is a commoditj' within the meanuig of the constitution. 

And said further: — 

It is not necessary in the present case to determine the meaning of the 
word "commodities,'' in reference to every possible application of it, 
but we are of opinion that it is not broad enough to include every occu- 
pation which one may follow, in the exercise of a natural right, without 
aid from the government, and without affecting the rights or interests 
of others in such a way as properly to call for governmental regulation. 
Whatever may be done by the Congress of the United States under its 
general power to levy excise taxes (see Thomas v. United States, 192 
U. S. 363) we are of opinion that, under the limitation to commodities, the 
General Court of Massachusetts cannot leys^ an excise tax upon the 
business of a husbandman or an ordinary mechanic. If this is not the 
necessary effect of the decision in Gleason v. McKay, xibi supra, it cer- 
tainlj^ is intimated by the language of the court in the opinion. 

In the statute before us the selling or giving of trading stamps, in con- 
nection with the sale of articles, can hardly be considered a business in 
itself; but the business which the statute seeks to reach is the selling of 
articles under an arrangement to deliver stamps as a part of the sale, or 
as an accompaniment of it. The statute includes sales of articles of 
every kind, and it describes the delivery of stamps in terms that include 
deliveries which, under the decisions of this court, are entirel}' unobjec- 
tionable in law. Commonwealth v. Sisson, 178 Mass. 578. Common- 
wealth V. Emerson, 165 Mass. 146. Such deliveries have generally been 
considered permissible in connection with the sale of articles, in the 
exercise of a common right, and many cases have been decided which 
invalidate statutes or ordinances intended to prevent such deliveries. 
People V. Gillson, 109 N. Y. 389. People v. Zimmerman, 102 App. Div. 
(N. Y.) 103. Ex parte McKenna, 126 Cal. 429. State v. Dalton, 22 
R. I. 77. Long v. State, 74 Md. 565. Young v. Commonwealth, 101 
\'a. 853. 

And further : — 

One of the reasons why these methods are allowable is found in the 
familiar principle that constitutional liberty means "the right of one to 



218 OPINIONS OF THE ATTORNEY-GENERAL. 

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 which may be imposed in 
the exercise of the police power include everything that may be neces- 
sary in the interest of the public health, the public safetj^ or the public 
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. In applying them to the business mentioned in 
this statute, no reason appears for the imposition of an excise tax upon 
the business of selling articles with an accompaniment of stamps which 
entitle the vendee to other property. 

It has been further said by our Supreme Judicial Court that 
the mere exercise of a natural right in the performance of labor 
of the simplest kind, or in making an ordinary simple contract, 
is not a commodity within the meaning of the Constitution. 
Opinion of the Justices, 196 Mass. 625, 629. 

The business or the method of doing business at which this 
bill is aimed is not, then, according to the decisions of the Supreme 
Judicial Court, a commodity, and therefore is not and cannot 
be subject to an excise tax. 

It may be urged, however, that the purpose of this bill is 
not to levy an excise tax but to regulate by means of a license 
the management and conduct of the method of transacting 
business by or with the use of trading stamps or other similar 
devices. It is to be borne in mind that this method of doing 
business has been repeatedly held by our Supreme Judicial 
Court to be lawful. Commonwealth v. Emerson, 165 Mass. 146; 
Commonwealth v. Sisson, 178 Mass. 578. And that if the 
stamps, coupons or other similar devices mentioned in this 
bill are used in such a way as to constitute a lottery or game 
of chance, such use may be punished under criminal statutes 
already in existence. And it should be further borne in mind 
that it is the constitutional right of persons in this Common- 
wealth to acquire and possess property and to transact legiti- 
mate business. Declaration of Rights, Art. I. 

Coming to the consideration of the question of the authority 
of the Legislature to impose license fees, the rule is that — 



I 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 219 

If the Legislature has power to prohibit a certain act altogether [as, 
for instance, the sale of intoxicating liquor] it may establish a pecuniary 
imposition upon its performance intended as a substantial prohibition or 
as a drastic limitation of the number of persons who will perform the act; 
if, however, the Legislature has no power to prohibit the act it cannot 
establish a pecuniary imposition really intended as a prohibition. . . . 

When the Legislature has neither the power to prohibit nor to tax a 
certain act, but the act is of such a nature that a reasonable inspection 
is necessary for the pubUc welfare, the Legislature may impose a license 
fee and prohibit the performance of the act until the fee is paid, but in 
such a case the fee may cover only the cost of inspection. (Nichols on 
Taxation in Massachusetts, pp. 4 and 5; 38 Cyc. 927.) 

The method of doing business by or with the use of stamps, 
coupons or other similar devices is one which the Legislature 
has no authority to prohibit under the Constitution, and since 
it is not a commodity no excise tax can be levied upon it. 
The license fee fixed in the proposed bill is greatly in excess of 
any probable cost of inspection of the business and is evidently 
intended to prohibit the transaction of a business that the 
Supreme Judicial Court has held to be lawful. 

My conclusion is that the proposed bill, if enacted, will be 
unconstitutional . 



Wrentham State School — Rights of Trustees in Mail 

ADDRESSED TO InMATES. 

Trustees of the Wrentham State School may exercise discretion in preventing 

delivery of objectionable mail to inmates. 

Valuable enclosures in mail addressed to inmates of the Wrentham State School 

must be delivered or returned. 

You ask my opinion upon the following questions : — to the 

Trustees of the 

What are the rights of the trustees to open mail addressed to inmates state Scitooi. 
of the Wrentham State School? If the contents of letters addressed to Aprii^is. 
the inmates of the Wrentham State School are, in the opinion of the 
superintendent, objectionable, what are the powers of the school in the 
matter? May the letter be destroyed or must it be returned to the 
sender, or must it be delivered? What are the rights of the trustees as to 
letters sent out by the inmates of the institution? Have they the right 
to open such letters, and if the contents are objectionable destroy them? 



\ 



220 OPINIONS OF THE ATTORNEY-GENERAL. 

Section 7 of chapter 504 of the Acts of 1909 provides that — 

The board shall have general supervision of all public and private 
institutions and receptacles for insane, feeble-minded or epileptic persons 
or for persons addicted to the intemperate use of narcotics or stimulants, 
and the Hospital Cottages for Children, and when so directed by the 
governor may assume and exercise the powers of the board of trustees 
of said state institutions in any matter relative to the management thereof. 
The board shah have the same powers relative to state charges in insti- 
tutions or other places under its supervision and to their property as are 
vested in towns and overseers of the poor relative to paupers supported 
or relieved by towns. 

By section 85 of this chapter it is further provided : — 

All patients in any institution under the supervision of the state board 
of insanity shall be allowed, subject to the regulations of the board, to 
write freely to the board, and letters so written shall be forwarded, 
unopened, by the superintendent or person in charge of the institution 
to said board for such disposition as it shall consider right; and the board 
may send any letters or other communications to any patients in any of 
said institutions whenever it may consider it proper so to do. All other 
letters to or from the patient may be sent as addressed or to his legal or 
natural guardian or most interested friend. 

Your inquiry raises a question under the Federal postal laws. 
The assistant attorney-general for the Post-office Department, 
in an opinion rendered under date of Feb. 6, 1894, ruled that 
the authorities of an insane asylum are required to exert a 
proper discretion in the matter of delivering mail to the inmates 
and in preventing the transmission of letters intended by such 
inmates for delivery to other persons, especially when the in- 
terests or the recovery of patients might be injured or the safe 
administration of the affairs of the institution interfered with. 

Section 85 of the statute above quoted confers authority 
upon the State Board of Insanity to supervise the correspond- 
ence of all patients in institutions over which they exercise 
control, of which your institution is one. The language of this 
section is so clear as to make explanation or comment un- 
necessary. 

lleferring to your question as to postage and money enclosed 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 221 

in letters to patients, it is my opinion that in any case where it 
is inadvisable to dehver the money or stamps or other valuable 
enclosure found in a letter to the person addressed, it should be 
returned to the sender. 



Commissioner of Corporations — Inspection of Tax 

Returns. 

Only such persons as may have occasion to inspect tax returns for the purpose 
of assessing or collecting taxes have a right to inspect tax returns of Massa- 
chusetts corporations. 

Under date of April 17 you state that the Board of Registra- xothe 
tion in Pharmacy respectfully requests an order from this de- Registration 

,,,,.. "^ „ ^^ . .in Pharmacy. 

partment to the C ommissioner or Corporations to permit a ish 



representative of your Board to inspect the franchise tax return 
of the Jaynes Drug Company, to enable you to act intelligently 
upon the applications of the Jaynes Drug Company for permits 
to operate drug stores and for certificates for sixth-class liquor 
licenses. 

The statute, St. 1909, c. 490, pt. III., § 40, as amended, pro- 
vides as follows with reference to the annual return to be filed 
by domestic corporations : — 

Such return shall be filed with the tax commissioner. In the case of 
domestic business corporations the whole of said return, and in the case 
of other corporations so much of said return as relates to the profit or loss 
which has resulted from the business of the corporation shall be open 
only to the inspection of the tax commissioner, his deputj^, clerks and 
assistants, and such other officers of the commonwealth as may have 
occasion to inspect it for the purpose of assessing or collecting taxes. 

It occurs to me that in making this request your Board may 
have thought that the Jaynes Drug Company is a foreign cor- 
poration. It is in fact a Massachusetts corporation, and its 
return to the Tax Commissioner is subject to the provisions of 
the statute above quoted. Under this statute the only persons 
authorized to examine the return are the Tax Commissioner 
and his clerks and assistants and such other officers of the 



April 22. 



I 



222 OPINIONS OF THE ATTORNEY-GENERAL. 

Commonwealth as may have occasion to inspect it for the 
purpose of assessing or collecting taxes. 

In my opinion it is not within the jurisdiction or authority 
of the Attorney-General to make such an order as your Board 
has requested. 



Board of Agriculture — Poultry Premium Bounty. 

An incorporated poultry association is entitled, under St. 1909, c. 428, to receive 
aid from the Poultry Premium Bounty Fund for one annual exhibition 
only. 

Unincorporated associations are not entitled to receive aid from the Poultry 
Premium Bounty Fund. 

Mast'chusetts ^ou ask my opinion upon the following questions: — 

Agricultural 

Co^Uege. First, under the provisions of the statute can a State poultry associa- 

Aprii 22 . tion, incorporated, hold more than one exhibition of poultry during a 

year and receive a part of the poultry premium bounty based on the total 
number of entry fees received by the association in competition with the 
local incorporated associations; and second, would a local unincorporated 
branch of a State association be entitled to draw upon the Poultry Pre- 
mium Bounty Fund if such local branch held a poultry show or exhibit 
annually during the months of November, December or January? 

The statute governing this matter is chapter 428 of the Acts 
of 1909, which is as follows: — 

Section 1. The sum of one thousand dollars shall be paid annually 
in the month of August from the treasury of the commonwealth to the 
board of agriculture, which shall be known as a Poultry Premium Bounty, 
and shall be used by said board to encourage and improve the breeding 
of poultry. Said bounty shall be distributed by said board among the 
poultry associations hereinafter designated, during the month of Sep- 
tember of each year, on the basis of the total entry fees received by such 
associations, respectively, during the j^ear preceding that time, as here- 
inafter provided, and the sum so distributed shall be used by such associa- 
tions for the purpose of enabling them to hold annual exhibitions of 
poultry and for the payment of premiums only. The board may make 
such rules as it may deem suitable for carrjdng out the provisions of this 
act; and any part of said bounty not distributed by the board in any 
year shall be repaid by it to the treasurer and receiver general. 

Section 2. No association shall be entitled to any part of said bounty 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 223 

unless it shall have been incorporated under the laws of the common- 
wealth for the purposes, principally, of holding exhibitions of poultry 
within the commonwealth. 

Section 3. No association shall be entitled to any part of said bounty 
unless it shall certify to the board of agriculture, not later than the first 
da}^ of July, under the oath of the president and secretary of such associa- 
tion, that it has held an exhibition of poultry during the months of 
November, December or January preceding said certificate, the amount 
of the entry fees paid to the association for such exhibition, and that 
the association is in need of aid to enable it to continue its exhibitions 
of poultry, together ^\'ith such other facts as the board may request. 

It is my opinion that an incorporated poultry association is 
entitled to receive aid from the Poultry Premium Bounty Fund 
for one show or exhibit annually, and that if a greater number 
of shows are given by an incorporated association no claim can 
be sustained for a payment from the premium fund for the 
additional exhibitions; and this would apply to your proposed 
corporation as well as to any other. 

Second, it is my opinion that under this statute an unin- 
corporated association is not entitled to receive aid from the 
Poultry Premium Bounty Fund. 



Divorce Certificate — Marriage License. 

The certificate of divorce or copy of such record required to be filed with town or 
city clerks, under St. 1912, c. 535, need not be in the English language. 

You ask if it is necessary that the divorce certificate or cer- Tothe 
tified copy of record presented to a town or city clerk by a theCommon- 
divorced person seeking a marriage license under the provisions i9i4 ^ 
of chapter 535 of the Acts of 1912 be in the English language. 

I am of the opinion that it is the law that such certificate 
or copy of record need not be in English but must necessarily 
be in the language of the court issuing the decree. The town 
or city clerk must be convinced, by a translation or otherwise, 
that the certificate or copy of record shows that a divorce has 
been granted in accordance with the statement of the person 



224 OPINIONS OF THE ATTORNEY-GENERAL. 

applying for the marriage license. The certificate or copy of 
record must also be attached to the marriage license if one is 
issued and becomes a part thereof, and with this the require- 
ments of the statute are satisfied. 



Pardons — Expiration of Prison Term. 

Where the term of a prisoner expires on Sunday by reason of a pardon issued by 
the Governor and Council, the prisoner should be discharged on the preceding 
Saturday. 

Jhusetts stife I ^^1 in Tcceipt of the following request for an opinion : — 

Prison. 

Aprii*24 Section 130, chapter 225 of the Revised Laws reads as follows: "A 
~ prisoner whose term expires on Sunday shall be discharged on the pre- 
ceding Saturday." I have received a pardon issued by the Governor and 
Council on April 8, a part of which reads as follows: "Now Know Ye, 
That, upon full consideration of the premises, We do hereby pardon the 
said offence and release him, the said ... on April 26, 1914, from any 
further imprisonment under the sentence aforesaid, and do order that 
he be discharged accordingly:" I am somewhat in doubt just when to re- 
lease him, — whether the section 130 above quoted applies to the pardon 
or not, and I respectfully ask your opinion in the matter. 

The question involved is w'hether the date set in the pardon 
is strictly and technically the expiration of the prisoner's 
"term." Section 132 of the chapter referred to in your letter 
relates to pardons and states of the Governor's pardon warrant, 
"Such warrant shall be obeyed and executed, instead of the 
sentence originally awarded." 

In my opinion the eft'ect of such warrant is to substitute a 
new and shorter term for the original term of imprisonment. 
The term of the prisoner in question, as shortened by the 
warrant recited in your letter, expires on Sunday, April 26, 
1914. The prisoner should therefore be discharged on the 
preceding Saturday. 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 225 



Sayings Banks — Investments — Municipal Bonds. 

Savings banks may invest in city bonds in certain States where "money and 
credits" of said city, added to the last assessed valuation, bring the valuation 
of the taxable property therein within the provisions of St. 1912, c. 580, 
§ 1, /. 

You have asked my opinion on the following subject: — 

In the official debt statement of the city of MinneapoHs, Minn., the To the Bank 
city comptroller has not included in the amount of the last valuation of °™™'^"°'^*'''- 
property for assessment of taxes the amount of "money and credits" " ^'^"^ "^ " 
that are assessed under chapter 285, Laws of Minnesota, 1911. This 
amounts to more than $41,000,000. The city of Minneapolis has issued 
additional bonds which throws the net indebtedness more than 7 per cent. 
of the assessed valuation, if the amount of "money and credits" is not 
included in the total valuation. This department requests that you 
give it your opinion if the city of Minneapolis could include in its total 
valuation the amount of the assessed value of "money and credits," and 
by so doing would it comply with subdivision e of clause second, section 
68, chapter 590, Acts of 1908? 

I assume, both from your mention of "7 per cent." and from 
the fact that Minneapolis has more than 100,000 population, 
that you are inquiring about / rather than about e, as stated in 
your letter. 

Subdivisions e, f and g, as amended by section 1 of chapter 
580 of the Acts of 1912, read as follows: — 

e. In the legally authorized bonds of the states of New York, Penn- 
sylvania, Ohio, Indiana, Illinois, Michigan, Wisconsin, Mumesota, 
Missouri and Iowa, and of the District of Columbia, and in the legally 
authorized bonds for municipal purposes, and in the refunding bonds 
issued to take up at maturity bonds which have been issued for other 
than municipal purposes, but on which the interest has been fully paid, 
of any city of the aforesaid states which has at the date of such invest- 
ment more than thirty thousand inhabitants, as established by the last 
national or state census, or city census certified to by the city clerk or 
treasurer of said city and taken in the same manner as a national or state 
census, preceding such investment, and whose net indebtedness does 
not exceed five per cent of the valuation of the taxable property therein, 
to be ascertained by the last preceding valuation of property therein for 
the assessment of taxes. 

/. In the legally authorized bonds of the states of California, Delaware, 



226 OPINIONS OF THE ATTORNEY-GENERAL. 

Nebraska, New Jersey, Oregon and Wasliington, and in the legally au- 
thorized bonds for municipal purposes or ia refunding bonds which have 
been issued for other than municipal purposes, but on which the interest 
has been fully paid, of any city of the states of California, Connecticut, 
Delaware, Illinois, Indiana, Iowa, Kentucky, Massachusetts, Maine, 
Maryland, Michigan, Minnesota, Missouri, Nebraska, New Hampshire, 
New Jersey, New York, Ohio, Oregon, Pennsylvania, Rhode Island, 
Vermont, Washington and Wisconsin, which has at the date of such in- 
vestment more than one hundred thousand inhabitants, established in 
the same manner as is provided in subdivision e of this clause, and whose 
net indebtedness does not exceed seven per cent, of the valuation of the 
taxable property therein, established and ascertained as pro\dded in sub- 
division e of this clause. 

g. In the subdivisions d, e and/ of this clause the words "net indebted- 
ness" mean the indebtedness of a county, city, town or district, omitting 
debts created for supplying the inhabitants with water and debts created 
in anticipation of taxes to be paid within one year, and deducting the 
amount of sinking funds available for the payment of the indebtedness 
included. 

Section 1 of the Minnesota statute cited by you contains the 
meat of the whole statute, and reads as follows: — 

"Money" and "credits," as the same are defined in section 798, Re- 
vised Laws of 1905, are hereby exempted from taxation other than that 
imposed by this act, and shall hereafter be subject to an annual tax of 
three mills on each dollar of the fair cash value thereof. 

I learn from other sources than your letter of inquiry that 
the bonded indebtedness of Minneapolis, including the issue in 
question and excluding the water debt and sinking funds, is 
$15,933,250.82; that the valuation of taxable property, ex- 
clusive of money and credits, is $219,609,553, and that $41,- 
072,125 of money and credits is taxable under the provisions 
of the act cited by you. 

The question before me is whether the fact that the tax laid 
on money and credits is limited by law^ to $3 a thousand pre- 
cludes the inclusion of money and credits in determining the 
valuation of the taxable property of the city. This limit is 
practically the only distinction between this class of property 
and the other property, classed as realty and personalty. 
Money and credits are listed for taxation just as other per- 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 227 

sonalty is listed. The lists are required to be verified and are 
tested as to completeness and accuracy in the usual way. The 
assessment is reviewed and equalized the same as others. 

Were it not for the tax limit there would be nothing to dif- 
ferentiate this class of property from other personalty. Does 
the limit make any real difference with respect to the Massa- 
chusetts law relative to legal investments for savings banks? 

The determination of the question requires an inquiry into 
the object of the establishment by the Legislature of the 
maximum ratio between city indebtedness and valuation. If 
this ratio was intended as an accurate test of the degree of 
solvency of the city, then, obviously, property which is only 
available to a limited extent to satisfy the city's obligations 
should not be given as much weight as property which is tax- 
able, and therefore available, up to its entire value. 

But it is my opinion that the purpose of the ratio is rather 
to establish a mere arbitrary measure. In this opinion I am 
fortified by the fact that the measure of size is just such a 
measure. The bonds of a Minnesota city of 29,999 inhab- 
itants are not legal investment, no matter how solvent it is. 
The bonds of a Minnesota city having one more inhabitant 
are. If a Minnesota city has 99,999 inhabitants, and its tax 
exceeds, by a single mill, 5 per cent, of its valuation, its bonds 
are not legal investment. Add a single inhabitant, and its 
bonds thereby become legal investment, and thousands of 
dollars more in bonds may be issued, for the allowable ratio 
has thereby jumped to 7 per cent. All'this points to the ratio 
being a mere arbitrary measure. Therefore the words "tax- 
able property" should be construed broadly. If the Legisla- 
ture wished to restrict the meaning to "taxable property 
unlimitedly available for payment of the same," or some 
similar phrase, the Legislature should have done so expressly. 

Broadly speaking, money and credits are taxable property. 
That point has been determined by the Attorney-General of 
Minnesota. In certain counties of that State the county auditors 
are paid as salaries sums "regulated by the assessed valuation 
of real and personal property for purposes of taxation in their 



228 OPINIONS OF THE ATTORNEY-GENERAL. 

respective counties." In answer to an inquiry from the State 
public examiner as to whether money and credits should be 
included in estimating the assessed valuation for the purpose of 
determining salaries, the State law department said : — 

Your inquiry is answered in the affirmative. Moneys and credits are 
given an assessed valuation, and although the local tax rate is not applied 
to such valuation, they are nevertheless personal property having an 
assessed value, and for the above specified purpose must be included in 
personal property valuations. (Minnesota Attorney-General's Report, 
1910-12, p. 256.) 

It is therefore my opinion that the city of Minneapolis may 
include in its total valuation the amount of the assessed value 
of money and credits, w^ithin the meaning of subdivision / of 
clause second of section 68 of chapter 590 of the Acts of 1908, 
and amendments thereto. 



Prisons — Violation of Parole — Determination of 
Duration of Sentence. 

Although a prisoner released on parole has been returned for breach of same, if 
his conduct while in prison has been perfect he is entitled to the usual de- 
duction of six days for every month of imprisonment. 

Jf°Prison°Com- ^^u havc lequcsted my opinion upon the following state- 
ment and inquiry: — 



missioners 

1914 
April 28. 



A prisoner was committed to the State Prison Feb. 27, 1893, having 
been sentenced thereto for a term of twenty-five years for being an 
habitual criminal. Dec. 20, 1900, he was released upon parole, and 
returned to the prison Oct. 10, 1901, for having violated the conditions 
of the same. He was again released upon parole April 9, 1909, and 
again returned Sept. 22, 1909, for another violation of parole. 

During the entire time that he has served in the prison his conduct 
there has been perfect, he never having been punished for violation of 
prison rules. 

Will you kindly favor the commissioners with your opinion as to when 
this man's sentence expires, less the time off due him for good conduct 
in the prison? 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 229 

The statutes governing this ease are sections 2 and 3 of 
chapter 435 of the Acts of 1887 and sections 20 and 22 of 
chapter 222 of the Pubhc Statutes, which appear without sub- 
stantial change in sections 113, 116 and 129 of chapter 225 
of the Revised Laws, section 129 having been amended in 1903. 

The first question to be determined is whether the violation 
by the prisoner of the conditions of his permit is to be regarded 
as the breaking or violation of a rule of the prison. If it is so 
to be regarded, then the question of how much shall be taken 
off the deductions from his term of imprisonment for good 
behavior rests entirely with your Board. But I am of the 
opinion that it is not so to be regarded. The permit is granted 
by the Governor and Council upon such terms and conditions 
as they prescribe, and it does not appear to have been a con- 
dition of the permit that the prisoner while at liberty must 
observe the rules of the prison, nor does it appear that the 
terms and conditions upon which the permit was granted were 
intended to have the force of prison rules or to stand in their 
place. The prisoner, so far as I am informed, had no notice 
that a violation of the conditions of his permit would be taken 
as the violation of a rule of the prison. The language of the 
statute, "they may issue to him a permit to be at liberty," is 
inconsistent with the idea that he is to be subject to penalties 
for a breach of the conditions of his permit as for a breach of 
the rules of the prison; besides, the statute fixes the penalty 
for a violation of the terms of his permit, namely, that the 
permit itself is forfeited and that for such violation he shall be 
returned to the prison, and that the time he has been at 
liberty shall not be taken into consideration in computing the 
term of his imprisonment. 

Leaving out of account the fact that this prisoner has twice 
violated the terms and conditions of his permit to be at liberty 
as not constituting a violation of any prison rule, we come to 
the question of deductions to be made from the term of his 
imprisonment for good conduct in prison. The question may 
arise as to whether such deductions can be claimed by the 
prisoner as a matter of legal right or whether it rests in the 



230 OPINIONS OF THE ATTORNEY-GENEEAL. 

discretion of your Board. The question was before the Supreme 
Judicial Court in the case of Murphy v. Commonwealth, 172 
Mass. 264, and, in rendering its decision, the court said: — 

It seems to us that . . . the convict was and is entitled to deductions 
for good conduct, and to a permit to be at Uberty for the time thus de- 
ducted, as a matter of right rather than of favor. The object was to 
furnish an incentive to good conduct while the convict was in confine- 
ment, by offering him a reward therefor. 

You state that the conduct of this prisoner during his entire 
term in prison has been perfect. It is my opinion that it is 
his legal right to have deducted from his term of imprison- 
ment six days for every month thereof, and that your Board 
should grant the prisoner, upon such terms as you may deem 
proper, a permit to be at liberty during the time so deducted 
from his sentence. 



CORPOEATIONS — INCREASE OF CaPITAL StOCK — FiLING FeES. 

Corporations must pay a filing fee of one-twentieth of one per cent, on all increases 
of capital stock, and every increase and decrease must be separately con- 
sidered. 

s°cretlryof A busiucss Corporation organized under the provisions of 

weaur"'"''" chapter 437 of the Acts of 1903, with an authorized capital. 
April 29. stock of $17,000,000, consisting of $7,000,000 of common stock 

and the balance in preferred stock, having paid the fees as 
required by law, by a proper vote reduced its common stock 
to $700,000, and immediately authorized an increase of its 
common stock by the amount of $4,300,000. You request my 
opinion as to whether a tax of one-twentieth of one per cent, 
on the $4,300,000 increase should be levied as a filing fee under 
the provisions of section 89 of said chapter. 

Sections 42 and 43 of chapter 437 of the Acts of 1903 relate, 
respectively, to the increase or reduction of the capital stock of 
corporations, and provide as follows : — 

Section 42. If an increase in the total amount of the capital stock of 
any corporation shall have been authorized by vote of its stockholders 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 231 

in accordance with the provisions of section forty, the articles of amend- 
ment shall also set forth: (a) the total amount of capital stock already 
authorized; (6) the amount of stock already issued for cash payable by 
instalments and the amount paid thereon; and the amount of full paid 
stock already issued for cash, property, services or expenses; (c) the 
amount of additional stock authorized; (d) the amount of such stock to 
be issued for cash, property, services or expenses, respectively; (e) a 
description of said property and a statement of the nature of said services 
or expenses, in the manner required by the provisions of section eleven. 
Section 43. If a reduction of the capital stock of any corporation 
shall have been authorized by its stockholders ia accordance "with the 
provisions of section forty, the articles of amendment shall also set forth 

(a) the total amount of capital stock already authorized and issued; 

(b) the amount of the reduction and the manner in which it shall be 
effected; (c) a copy of the vote authorizing the reduction. No reduction 
of capital stock shall be lawful which renders the corporation bankrupt 
or insolvent, but the capital stock may be reduced by the surrender by 
every stockholder of his shares and the issue to him in lieu thereof of a 
proportional decreased number of shares, if the assets of such corporation 
are not reduced thereby, without creating any liability of the stockholders 
of such corporation in case of the subsequent bankruptcy of such cor- 
poration. 

The fees for filing and recording the certificate required by 
law for an increase of capital stock are fixed bj' section 89 of 
said chapter, as amended by section 2 of chapter 396 of the 
Acts of 1907, which reads as follows: — 

The fee for filing and recording the certificate required by section 
forty-two providing for an increase of capital stock shall be one twentieth 
of one per cent, of the amount by which the capital is increased. 

Section 90 of said chapter 437 provides as follows: — 

The fees for filuig all other certificates, statements or reports required 
by law shall be five dollars for each certificate, statement or report, but 
no fee shall be paid for filing the annual tax return required by section 
forty-eight. 

The reduction and the increase of the capital stock of this 
corporation, though made by votes as nearly simultaneous in 
point of time as it was possible to make them, still constitute 
two separate and distinct transactions.' No question appears 



232 OPINIONS OF THE ATTORNEY-GENERAL. 

to have been raised as to the payment of the fihng fee for the 
certificate showing a reduction of the capital stock, but this 
was no more a distinct transaction than the act of increasing 
the stock. 

It has been the unvarying practice since the enactment of 
the present law to charge the statutory fee in every instance of 
an increase in capital stock, and the statute makes no pro- 
vision for exemptions or exceptions under any circumstances. 

It has been suggested that $4,000,000 of the $4,300,000 in- 
crease is to be exchanged for a like amount of second preferred 
stock, and that therefore the filing fees should be computed 
only on the $300,000. It is not apparent how the disposition to 
be made by the corporation of the capital stock acquired by 
this increase can affect the statutory requirement in regard to 
the paj^ment of the fee for filing and recording the certificate 
of increase. 

It is my opinion that in this case a filing fee of one-twentieth 
of one per cent, of $4,300,000 must be paid by the corporation. 



Damages — Liability of Commonwealth to Ripakian 

Proprietors. 

A riparian proprietor who is damaged by the construction of a bridge which cuts 
off his access to the sea has no right of action against the Commonwealth. 

Committee on Upou the petition and statement of facts of John Stuart of 
^^ropoiitan Q^jncy, transmitted to me with House Bill No. 1172, you have 
April 29. requested my opinion in regard to the following questions : — 

1. Has the petitioner suffered any damage for which the Common- 
wealth is Uable? 

2. If the Commonwealth is liable, for what should the petitioner be 
compensated? 

The claim of the petitioner against the Commonwealth is 
well set forth in his petition, which is as follows : — 

The undersigned, citizen of Quincy, respectfully represents that he 
maintains a boat-building plant, with facilities as well for storing boats, 
located on Sachem Brook, so called, in said Quincy, which is crossed by 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 233 

a drawless bridge constructed by the Metropolitan Park Commission, in 
accordance with chapter 124 of the Acts of 1904, to connect the Quincy 
Shore Drive ; that for many years prior to the construction of said bridge 
your petitioner had the unobstructed use of the channel of said Sachem 
Brook, in connection with his business as aforesaid; that he objected to 
the construction of said bridge, believmg that it would result in an injury 
to his said business and property; and that he was given assurance that 
said bridge would be so constructed as not to interfere with the free 
passage of boats thereunder, but that since the construction of said bridge 
the tides have washed into said channel sand and material used in the 
construction of the parkway adjacent to said bridge, so that each year 
since said bridge was constructed your petitioner has suffered great 
damage by reason of said inability to use said channel uninterruptedly 
as theretofore; and that no provision has been made by the Common- 
wealth for the payment of such damages. 

Wherefore, your petitioner prays for the enactment of legislation to 
recompense him for injury to his business and property, caused as afore- 
said. 

From the petition and statement of facts it appears that 
Sachem Brook is a small stream flowing into Quincy Bay, so 
called, that the tide ebbs and flows in the channel of this 
brook for a considerable distance, and that at low tide the 
channel is almost entirely drained of water. The petitioner's 
place of business is located on the shore of Sachem Brook, on 
tidewater, and at some time the Metropolitan Park Commis- 
sion, by virtue of authority conferred upon it by chapter 124 
of the Acts of 1904, built a drawless bridge over this brook 
below the plant of the petitioner. Chapter 124 is entitled 
"An Act to authorize the Metropolitan Park Commission to 
construct a drawless bridge over Sachem Brook, so called, in 
the Quincy Shore Reservation," and provides as follows: — 

Section 1. The metropolitan park commission is hereby authorized to 
construct a drawless bridge over that part of Sachem brook, so called, in 
Quincy, lying within the lands acquired by said commission by takings 
or otherwise for Qumcy shore reservation. 

Section 2. No action shall be taken relative to the construction of 
said bridge until the plan therefor has been approved by the board of 
harbor and land commissioners. 

Section 3. This act shall take effect upon its passage. [Approved 
Fcbruanj 27, 1904. 



234 OPINIONS OF THE ATTORNEY-GENERAL. 

The petitioner's place of business being located on tidewater 
and the bridge of which he complains having been constructed 
by authority of the Legislature, the question arises, has the 
petitioner, even though he has been injured as he claims to 
have been, any legal claim against the Commonwealth for 
damages? 

Questions exactly parallel to the one under consideration 
have been repeatedly passed upon by the Supreme Judicial 
Court and have been uniformly decided against the claimants. 
It is said that — 

The Legislature may authorize the use of public streams for any public 
purpose without compensating riparian proprietors thereby injured. It 
may cut off the access of riparian owners to the sea by authorizing the 
construction of a bridge, with or without a draw, or across a stream below 
their lands. Such authorization is the regulation of public rights and 
an owner has no private right in the stream even if he has enjoyed 
twenty years' use or if he is the only wharf owner upon it. (Nichols on 
Land Damages, § 5, at pp. 12-13.) 

In a case in which the facts were that the petitioners owned 
a tidewater mill from which they alleged they had hitherto 
derived great emolument and advantage; that their property 
was damaged by the location and construction of the Boston 
& Maine Railroad across the mouth of the creek at the head 
of which their mill was situated; that the railroad company 
had greatly obstructed and impeded the flow of tidewater into 
their milldam; that by the location and construction of the 
railroad through the petitioners' milldam the respondents had 
greatly obstructed and prevented the tidewater, which over- 
flowed the meadow and land above the pond, from flowing 
back into the pond; that in consequence of these obstructions 
the petitioners' mills could not be worked as effectually as 
before, and that the railroad company, by the location and 
construction of its road, had greatly injured the premises of 
the petitioners for the purposes of a wharf, the court, speaking 
by Chief Justice Shaw, said: — 

The question was as to the right of riparian proprietors upon salt 
water, over an open tract of flats from which the tide wholly ebbs, and 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 235 

lying between upland territory and navigable water, kept open and un- 
obstructed for the free flow and reflow of the tidewater, for their mills 
or for navigation. This was a question of law, depending on the general 
laws of property, the colony ordinance in regard to flats, the usages of 
the country, and judicial decisions, and was proper to be decided as a 
question of law. And we are of opinion, as matter of law, that the pe- 
titioners had no right, as riparian proprietors, to have their flats kept 
open and unobstructed for the purposes stated, and that the jury should 
have been so instructed; also, that the petitioners, as tide mill owners, 
had no right, either as against the public or as against conterminous and 
adjacent proprietors, to liave their flats kept open, but only to the flow 
of water in the channel below low-water mark, and where the tide does 
not ebb. The adjoining proprietor, to the extent of one hundred rods, 
may build solid structures, and thus obstruct the flow and reflow of the 
tide, without objection, provided he does not wholly cut off his neighbor's 
access to his house or land; and if the mill owner or conterminous pro- 
prietor suffers in consequence, it is damnum absque injuria. The public 
have a right to regulate the use of public navigable waters for purposes of 
passage; and the erection of a bridge with or without a draw, by the 
authority of the Legislature, is the regulation of a public right, and not 
the deprivation of any private right, which can be ground for damages. 
So far, therefore, as the railroad erected by authority of the Legislature 
affected the right of the petitioners to pass or repass to and from their 
lands and wharves with vessels, it was a mere regulation of a public right, 
and not a taking of private property for a public use, and gave the pe- 
titioners no claim for damages. {Davidson v. Boston & Maine R. R., 
3 Cush. 93.) 



In a similar case the court again said : — 



The petitioners owned the wharf and land against which the westerly 
end of said bridge was built, and they claimed damages for the injury 
to their estate by the said bridge, by impeding the access to their 
wharf by vessels, and by occupying the space which would have served 
the purpose of a vessel's berth, Ij^ing at their wharf. The judge decided 
that they could maintain no such claim, and rejected the evidence offered 
in support of it, to which the petitioners excepted. This court are of 
opinion that this decision was right. As we understand the facts, this 
bridge passes over the channel only, which is part of the public domain; 
being a navigable channel from which the tide does not ebb, the Legisla- 
ture had the right to authorize the bridge, and did authorize both the 
bridge and the continuance of it. If the petitioners sustained any loss 
by it, it was a damage arising from a partial impediment in the use of a 
public right, a damage sustained by them in common with all the rest 



236 OPINIONS OF THE ATTORNEY-GENERAL. 

of the community, and for which they could have no claim for damage. 
They had no right to occupy that part of the channel as a vessel's berth, 
because it was upon a public navigable stream, and if occupied in fact 
more extensively by them than by others, it would be by sufferance, and 
not as of right. {Boston & Worcester R. R. Corpn. v. Old Colony R. R. 
Corpn., 12 Cush. 605.) 

In another case of like character the plaintiff alleged that he 
owned and used a wharf and other property on Monument 
River, a navigable stream and arm of the sea, in the town of 
Sandwich, and that the defendant, on or about June 6, 1873, 
"wrongfully, unjustly and unlawfully built, or caused to be 
built and constructed a bridge, without a draw, across said 
river, below said land and wharf, and between it and the sea, 
and so low and near the river as to prevent the plaintiff from 
navigating said river and using said land and wharf as afore- 
said; that the defendant refused and neglected, and still refuses 
and neglects to provide a draw in and for said bridge, although 
often requested so to do by the plaintiff; that, by reason of 
the building and constructing of said bridge, he has been pre- 
vented from using his said land and wharf for the purposes of 
trading and landing and shipping grain, flour, wood and various 
other kinds of goods, w^ares and merchandise, and storing the 
same, and mooring vessels, and for wharfage and wharf pur- 
poses generally, and for the purposes for which it was previously 
used, and has been and is greatly damaged and injured, and 
particularly has been and is greatly damaged and injured, in 
his said land and wharf and business." In this case the court, 
speaking by Chief Justice Gray, said: — 

The act of the defendant, for which the plaintiff in various counts 
seeks compensation, is the building of a bridge across a navigable stream 
and arm of the sea. The direct injury alleged is to the navigation of the 
stream, to which the plaintiff is entitled only in common with the whole 
public; and the remedy for that injury is by indictment, and not by 
private action. The fact that the plaintiff alone now navigates the 
stream, or has a wharf thereon at which he carries on business, only 
shows that the present consequential damage to him may be greater 
in degree than to others, but does not show that the injury is different 
in kind, or that other riparian proprietors and the rest of the public may 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 237 

not, whenever they use the stream, suffer ia the same way. The case 
has no analogy to those in which an obstruction in a navigable stream 
sets back the water upon the plaintiff's land, or, being against the front 
of his land, entirely cuts off his access to the stream, and thereby causes 
a direct and peculiar injury to his estate, or in which the carrying on of 
an offensive trade creates a nuisance to the plaintiff. Blood v. Nashua & 
Lowell Railroad, 2 Gray, 137; Lawrence v. Fairhaven, 5 Gray, 110; 
Brightman v. Fairhaven, 7 Gray, 271; Willard v. Cambridge, 3 Allen, 574; 
Wesson v. Washburn Iron Co., 13 Allen, 95; Brayton v. Fall River, 113 
Mass. 218; Lyon v. Fishmongers' Co., 1 App, Cas. 662. (Blackwell v. 
Old Colony R. R. Co., 122 Mass. 1.) 

These cases have been followed in later decisions of the 
Supreme Court: Stimson v. Inhabitants of Brookline, 197 Mass. 
568, 573; Home for Aged Women v. Commonwealth, 202 Mass. 
422, 428; Dwyer v. New York, New Haven & Hartford R. R. 
Co., 209 Mass. 419, 421. 

The petitioner states that he objected to the construction of 
the bridge across Sachem Brook. Even though he did object, 
that fact is of no legal consequence. His objection was addressed 
to the sound discretion and judgment of the Legislature, whose 
decision w'as final. 

It is claimed that the petitioner wrote a letter in which he 
referred to an agreement between himself and Mr. Emery and 
the Metropolitan Park Commission, but it is to be noted that 
no one had authority to make an agreement with the petitioner 
on behalf of the Commonwealth; and the petitioner loses no 
rights by reason of any negotiations with Mr. Emery or any 
member of the Park Commission, because there was no process 
of law by which he could have prevented or even hindered the 
building of the bridge. 

I\Iy attention has been directed to certain cases cited by 
counsel for the petitioner, and I have examined them, but I do 
not find one that is parallel to the case under consideration. 
In each of these cases the damage suffered w'as special and 
peculiar, while the damage alleged by the petitioner in this 
case is precisely the same in kind and character as that com- 
plained of in the cases hereinbefore cited, and this petitioner is 
subject to the rule of law established by those cases. The 



238 OPINIONS OF THE ATTORNEY-GENERAL. 

damage alleged by the petitioner is caused by the interference 
with the navigation of Sachem Brook, a thing to which he is 
entitled only in common with the whole public. The fact, if 
it be a fact, that he alone now navigates the stream or has a 
boat-building establishment thereon at which he carries on 
business only shows that the present consequential damage to 
him is greater in degree than to others, but does not show that 
the injury is different in kind or that other riparian proprietors 
and the rest of the public may not suffer in the same way 
whenever they use the stream. In such a case a private action 
cannot be maintained. 

I am therefore of the opinion that the petitioner has not 
suffered any damage for which the Commonwealth is liable. 

Your first question being answered in the negative, your 
second question requires no further consideration. 



Legislature — Eligibility of Members to Office. 

Members of the Legislature may be appointed, during their term of office, to an 
office not created by them during said term. 

Governor. You liavc rcqucstcd my opinion upon the following ques- 

1914, ' ,• 

Apru 30. tion : — 

Can the Governor lawfully appomt a member of the present Legis- 
lature to a State board or commission, as, for example, the Commission 
on Economy and Efficiency? 

Section 21 of chapter 3 of the Revised Laws provides as 
follows : — 

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

Commenting upon this section Attorney-General Knowlton 
said : — 



'I 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 

The obvious purpose of the 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 place created by the Legis- 
lature of which he is a member. (I. Op. Atty.-Gen., 347.) 

On May 14, 1912, Attorney-General Swift gave an opinion 
to the Governor on the following question: "Whether a mem- 
ber of the present Legislature would be eligible to appointment 
on the Industrial Accident Board, so called, created by an act 
of the Legislature of 1911, which act was amended by the 
Legislature of 1912." The question was raised that there was 
no clause in the amending bill which would exempt from its 
operation the provisions of section 21 of chapter 3 of the 
Revised Laws. I quote from Attorney-General Swift's 
opinion : — 

The Industrial Accident Board was created by chapter 751 of the 
Acts of 1911. A member of this year's Legislature is, therefore, not 
ineligible by reason of section 21 of chapter 3 of the Revised Laws, except 
for appointment to an office created during the present term of the Legis- 
lature. . . . (The amendment to chapter 751 of the Acts of 1911, estab- 
lishing the Board, does not in terms repeal or strike out the provisions 
of the act of 1911.) 

... It, therefore, does not abolish the Board of three members created 
by said act of 1911, but merely creates a Board of five instead of three 
members by an addition of two members; nor does the change in salary 
and in term of office made by the amendment operate to abolish the 
three commissionerships created under said act of 1911. These are 
mere changes in detail which cannot affect the existence of the office 
itself. Familiar illustrations of this rule are various acts passed increas- 
ing the number of justices of our courts and increasing their salaries. It 
has never been contended that such amendments abolished existing 
offices, nor could it be successfully so contended, in my judgment. There 
are, therefore, three commissionerships which were created by the act 
of 1911 to which a member of this year's Legislature would be eligible 
to appointment so far as the operation of said section 21 of chapter 3 
of the Revised Laws is concerned. 

As the rule of law seems to me to have been stated correctly 
by my predecessors, I make no further comment. 



239 



240 OPINIONS OF THE ATTORNEY-GENERAL. 



Constitutional Law — Corporations — Rights of Minority 

Stockholders. 

A law requiring foreign corporations doing business in Massachusetts to give 
minority stockholders representation on their boards of directors would be 
unconstitutional. 

To the Com- You havc requested my opinion as to the constitutionality 

mittee on Bills ± ./ i ^ 

Reidl7'''"^ of House Bill No. 1166, which is entitled "An Act to provide 
May li. that minority stockholders of corporations doing business in 

Massachusetts may be represented on boards of directors." 

Sections 1 and 2 are as follows : — 

Section 1. Every corporation created by, or organized under, the 
laws of this commonwealth, and every corporation established, organized 
or chartered under the laws of another state or country, and engaging 
or continuing in any kind of business in this commonwealth, shall be 
subject to the provisions of this act. 

Section 2. At the annual meeting for the election of officers of any 
corporation mentioned in section one, stockliolders who are residents of 
Massachusetts and who hold stock to an amount equal in the aggregate 
to twenty-five per cent of the entire outstanding capital stock of the 
corporation, hereinafter called minority stockholders, shall have the 
right to nominate one director of such corporation and to have him 
elected as a director, provided they comply with the requirements of 
the succeeding sections of this act. 

Sections 3 and 4 provide the methods to be pursued by the 
minority stockholders of a corporation to secure representation 
on its board of directors. The fifth and last section provides 
heavy penalties for violation and that any corporation that 
has violated any of its provisions may be enjoined from the 
prosecution of its business until it has complied with the pro- 
visions of this act. 

Corporations are creations of the law. Their organization, 
control, conduct and dissolution may all be directed by statute. 
Since the decision of the Dartmouth College case the statutes 
of the Commonwealth have carefully preserved to the Legis- 
lature the right to change the provisions of law in regard to 
corporate rights. The Business Corporation Act, so called, 
enacted in 1903, provides that it shall apply — 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 241 

(a) To all corporations having a capital stock and established for the 
purpose of carrying on business for profit heretofore or hereafter organized 
under general laws of the commonwealth. 

(b) To all such corporations heretofore created under special laws of 
the commonwealth, except so far as its provisions are inconsistent with 
the provisions of any such special laws enacted before the eleventh day 
of March in the year eighteen hundred and thirty-one as are not subject 
to amendment, alteration or repeal by the general court. 

Section 2 of this chapter provides that corporations organ- 
ized under general laws shall be subject to all laws hereafter 
enacted which may affect or alter their corporate rights or 
duties or may dissolve them. 

The bill before me proposes a very radical innovation in the 
methods heretofore and now in force in regard to the election 
of directors of corporations, but the regulation proposed is one 
that is, in my opinion, within the authority of the Legislature 
to make as to all domestic corporations, except such as were 
organized under the provisions of special laws enacted before 
the eleventh day of March in the year 1831, and whose charters 
are not subject to amendment, alteration or repeal by the 
General Court. 

Taking up the question of applying the proposed legislation 
to foreign corporations doing business in this Commonwealth, 
it may be noted that a corporation can exist only by force of 
the statute or other law of the state or country in which it is 
created; that the laws of a state or country have no extra- 
territorial force and operate in another state or country only 
on the principle of comity, and that a corporation is con- 
clusively presumed to be a resident of the state or country 
under whose law it w^as created. Bank of Augusta v. Earle, 
13 Pet. 519; 19 Cyc. 1218; Thompson on Corporations, 
§§ 7875 and 7876. 

A corporation organized under the laws of one state or 
country is not a citizen wathin that provision of section 2 of 
Article IV. of the Constitution of the United States which 
provides that "the citizens of each state shall be entitled to all 
privileges and immunities of citizens in the several states," nor 
is it within that clause of the Fourteenth Amendment to the 



242 OPINIONS OF THE ATTORNEY-GENERAL. 

Federal Constitution which provides that "no state shall make 
or enforce any law which shall abridge the privileges or im- 
munities of citizens of the United States." A corporation, 
therefore, can exercise none of its functions, franchises or privi- 
leges in any State other than that in which it is organized 
except by the comity and consent of that other state. Bank 
of Augusta v. Earle, 13 Pet. 519; Paul v. Virginia, 8 Wall. 
168; Clark on Corporations, 2d ed., 604. 

It follows that with the exception of those foreign corpora- 
tions whose business transactions in this Commonwealth are 
within the interstate commerce clause of the Federal Constitu- 
tion the Legislature may prescribe the terms and conditions 
upon which they may do business here. It is within the power 
of a state in its discretion to exclude from its territory all 
foreign corporations except those whose transactions within its 
borders fall within the commerce clause, so called, of the Federal 
Constitution. Clark on Corporations, 2d ed., 605; Myers v. 
Manhattan Bank, 20 Ohio 301; Runyan v. Coster's Lessee, 14 
Pet. 122; Starkweather v. American Bible Society, 72 111. 50. 

It may be thought that a different rule should prevail as to 
foreign corporations that have already complied with the law of 
this Commonwealth, and, having received permission to do 
business here, have invested their capital and established them- 
selves in business here. There is a large number of corporations 
of this class. In cases that have arisen where corporations have 
been similarly situated it has been argued that, having com- 
plied with the laws in force at the time they entered the state 
and having established themselves in business, the state in 
which they have thus lawfully established themselves cannot, 
without just cause, revoke the permission granted them to 
carry on their business within its borders. But the rule of law 
seems to be that a state has the absolute right entirely to 
exclude a foreign corporation from its territory or, having given 
it a license to do business within the state, to revoke it in its 
discretion for good cause or without any cause at all, and its 
motive in so doing is not open to inquiry. 

Subject to the exception already noted as to interstate com- 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 243 

merce, the corporation has no constitutional right to transact 
its business in any other state than that of its creation, and 
hence its exclusion therefrom violates no constitutional right. 
Waters-Pierce Oil Co. v. Texas, 177 U. S. 28; State v. Standard 
Oil Co., 61 Neb. 28; Doyle v. Continental Ins. Co., 94 U. S. 535. 

A state cannot interfere with the internal affairs of a foreign 
corporation. It cannot direct how the officers of a foreign 
corporation shall be chosen. I have discussed thus at length 
the right of a state to exclude foreign corporations because the 
conditions imposed by this proposed measure of legislation, 
while in form directing the manner in which directors of cor- 
porations organized in other states or countries doing business 
here shall be elected, are in truth and in fact terms of exclusion 
from the Commonwealth. The terms imposed by this bill are 
impossible of performance by foreign corporations for the 
reason that such corporations must elect their directors in the 
manner provided by the laws of the state in which they are 
organized, and cannot do otherwise, for the law of that state is 
the very law of their being. 

It has been suggested that the enactment of a statute such 
as is here proposed is likely to provoke retaliatory legislation 
by other states. While this is probably true, it does not present 
a constitutional objection to the bill. Its provisions are broad 
enough to include corporations organized and located outside 
the Commonwealth whose transactions within it are those of 
interstate commerce. In its present form this bill, so far as it 
relates to corporations organized prior to March 11, 1831, under 
special laws, and whose charters are not subject to alteration or 
repeal by the Legislature, is obnoxious to the provision of the 
Federal Constitution that "no state shall pass any law im- 
pairing the obligation of contracts." Dartmouth College v. 
Woodward, 4 Wheat. 636. And so far as its terms apply to 
corporations organized outside the Commonwealth, whose trans- 
actions within it are solely those of interstate commerce, it is 
obnoxious to the commerce clause of the Federal Constitution. 

It is my opinion that this bill, if enacted, will be unconsti- 
tutional. 



244 OPINIONS OF THE ATTORNEY-GENERAL. 

Constitutional Law — Eminent Domain — Interstate 

Streams. 

A law authorizing a city in this Commonwealth to take water from an interstate 
stream and providing compensation for damages to nonresidents is con- 
stitutional. 

mut^^™ You have requested my opinion as to the constitutionaHty of 

Water Supply, jjougg ^[i\ ^o. 2279, as amended, being an act to authorize the 
-^L!!' city of Fitchburg to increase its water supply. This bill is 

drawn in all essential particulars in conformity with similar 
measures that have been enacted from time to time in this 
Commonwealth and makes provision for the compensation of 
all persons whose property may be taken under its provisions 
or injured by acts done under its authority. 

Upon its face the bill is entirely free from any constitutional 
objection, but the remonstrants raise the point that it provides 
for a taking by right of eminent domain of the waters of the 
Souhegan River, an unnavigable, interstate stream, that has 
its source in Massachusetts and flows into New Hampshire; 
and that as the flow of water in that river will be greatly 
diminished if the proposed taking is made, and the property 
of riparian owners, citizens of New Hampshire, along the 
course of the stream in that state will be damaged thereby, the 
bill, if enacted, will be unconstitutional. 

The bill is not obnoxious to any provision of the Constitu- 
tion of this Commonwealth, It provides for compensation in 
damages to persons or corporations, whether within or without 
the Commonwealth, entitled to damages under its provisions 
if they fail to agree with said city as to the amount of damages 
sustained, and makes further specific provision for damages to 
parties outside the Commonwealth in the following language: — 

Owners of property situated without the commonwealth which is 
damiaged by anything done by the city under the authority of this act 
may file their petitions for damages in the office of the clerk of the 
superior court for the county of Middlesex or for the county of Worcester. 

So that a remedy is provided for every one whose property is 
injured by the operations that may be carried on under au- 
thority of this act. 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 245 

In the consideration of this question my attention has been 
directed to two cases: Pine et als. v. New York City, 112 Fed. 
Rep. 98 (185 U. S. 93); and Kansas v. Colorado, 206 U. S. 46. 

In the case of Pine et als. v. New York City the facts were 
that the Legislature of the State of New York passed an act 
authorizing New York City to take the waters of Byram River, 
a non-navigable stream which has its source in the State of 
New York, and at some distance from its source flows into and 
across the State of Connecticut and empties into Long Island 
Sound. New York City, proceeding under the act, built a 
dam across Byram River in the State of New York and diverted 
so much of the water as to diminish greatly the flow of the 
stream in Connecticut, whereby the property of the plaintiffs 
was damaged; and as the city failed to agree with the plaintiffs 
as to the amount of damages they had suffered, they brought 
suit in equity in the Circuit Court of the United States, praying 
for an injunction to restrain the city from diverting the waters 
of that stream. The Circuit Court granted the injunction as 
prayed for, and the case was taken to the Circuit Court of 
Appeals. 

The question of the constitutionality of the New York statute, 
while not discussed at length in the opinion rendered in the 
Circuit Court of Appeals, was evidently considered, for the 
majority opinion sustaining the decision of the Circuit Court 
contains the statement that "the diversion of water at one 
point is a taking of the property of riparian owners below the 
point of diversion, and falls within the constitutional pro- 
tection." As above indicated, the opinion of the Circuit Court 
of Appeals was rendered by a divided court, one of the three 
judges who heard the case dissenting. Judge Wheeler, who 
wrote the dissenting opinion, said : — 

The defendant has done nothing in question here outside of the State 
of New York; the deprivation of water complained of was wholly within 
that state; and, if the plaintiffs have any rights in the water taken, they 
exist within that state, and were subject to and taken under the eminent 
domain of that state. The plaintiffs have come into this court because 
they are citizens of another State, and not because their land through 



246 OPINIONS OF THE ATTORNEY-GENERAL. 

which they derive their rights to the water taken is situated m another 
state. . . . 

Thus these parties have a common interest in the water in question, 
which the defendant has taken under the law of the State, and not as a 
trespasser. It seems to be familiar law that, when an injunction is 
applied for to restrain such a taking, the damages will be ascertained, 
and the injunction withheld on making payment. 

This case was then taken to the Supreme Court of the 
United States. That court did not take up the question of the 
constitutionality of the New York statute, but ruled that the 
plaintiffs had been guilty of laches in bringing their suit, and 
because of this reversed the decision of the lower court and 
made a decree leaving to New York City the right to continue 
the diversion of the water of the river, the plaintiffs to have 
compensation in damages. In this case it is to be remarked 
that the question of the constitutionality of the act authorizing 
New York City to take the waters of Byram River was un- 
doubtedly before the Supreme Court. If unconstitutional, no 
degree of negligence by the plaintiffs in bringing their suit 
could have cured the defect. If the act was unconstitutional 
it was void from the beginning, yet the court having the ques- 
tion before it decided the case, not in entire accordance with 
the grounds of either the majority or the dissenting opinion 
rendered in the Circuit Court of Appeals, but upon a principle 
of equity that left the parties in the same position they would 
have occupied had the dissenting opinion of Judge Wheeler 
prevailed. 

In the second case above mentioned the State of Kansas filed 
in the Supreme Court of the United States a bill in equity against 
the State of Colorado, alleging that the State of Colorado, acting 
directly by herself as well as indirectly through private persons 
and corporations thereto licensed by the State of Colorado, was 
depriving and threatening to deprive the State of Kansas of all 
the water heretofore accustomed to flow in the Arkansas River; 
that this was threatened not only by the impounding and the 
use of the water at the river's source but as it flows after 
reaching the river. It was alleged that injury was being, and 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 247 

would be, thereby inflicted on the State of Kansas as an 
individual owner of land in the Arkansas River valley and on 
all the inhabitants of the State, and especially on the in- 
habitants of that part of the State lying in the Arkansas River 
valley. After disposing of certain preliminary matters the 
Supreme Court, speaking by Mr. Justice Brewer, said : — 

Turning now to the controversy as here presented, it is whether Kansas 
has a right to the continuous flow of the waters of the Arkansas River, 
as that flow existed before any human interference therewith, or Colorado 
the right to appropriate the waters of that stre'am so as to prevent that 
continuous flow, or that the amount of the flow is subject to the superior 
authority and supervisory control of the United States. While several 
of the defendant corporations have answered, it is unnecessary to spe- 
cially consider their defences, for if the case against Colorado fails it 
fails also as against them. Colorado denies that it is in any substantial 
manner diminishing the flow of the Arkansas River into Kansas. If 
that be true, then it is in no way infrmging upon the rights of Kansas. 
If it is diminishing that flow has it an absolute right to determine for 
itself the extent to which it will diminish it, even tf) the entire appro- 
priation of the water? And if it has not that absolute right is the amount 
of appropriation that it is now making such an infringement upon the 
rights of Kansas as to call for judicial interference? Is the question one 
solely between the States or is the matter subject to national legislative 
regulation, and, if the latter, to what extent has that regulation been 
carried? Clearly this controversy is one of a justiciable nature. The 
right to the flow of a stream was one recognized at common law, for a 
trespass upon which a cause of action existed. 

The court further said: — 

The question of the extent and the limitations of the rights of the two 
States becomes a matter of justiciable dispute between them, and this 
court is called upon to settle that dispute in such a way as will recognize 
the equal rights of both and at the same time establish justice between 
them. 

Again, the court said : — 

Now the question arises between two States, one recognizing generallj' 
the common-law rule of riparian rights and the other prescribing the 
doctrine of the public ownership of flowing water. Neither State can 
legislate for or impose its own policy upon the other. A stream flows 



248 OPINIONS OF THE ATTORNEY-GENERAL. 

through the two and a controversy is presented as to the flow of that 
stream. It does not follow, however, that because Congress cannot 
determine the rule which shall control between the two States or because 
neither State can enforce its o\mi policy upon the other, that the contro- 
versy ceases to be one of a justiciable nature, or that there is no power 
which can take cognizance of the controversy and determine the relative 
rights of the two States. Indeed, the disagreement, coupled with its 
effect upon a stream passing through the two States, makes a matter 
for investigation and determination by this court. 

Referring to the principles of common law applicable to this 
case the court said : — 

For after all, the common law is but the accumulated expressions of 
the various judicial tribunals in their efforts to ascertain what is right 
and just between individuals in respect to private disputes. As Congress 
cannot make compacts between the States, as it cannot, in respect to 
certain matters, by legislation compel their separate action, disputes 
between them must be settled either by force or else by appeal to tribunals 
empowered to determme the right and wTong thereof. Force under our 
system of government is eliminated. The clear language of the Consti- 
tution vests in this court the power to settle those disputes. We have 
exercised that power in a variety of instances, determining in the several 
instances the justice of the dispute. Nor is our jurisdiction ousted, even 
if, because Kansas and Colorado are States sovereign and independent 
in local matters, the relations between them depend m any respect upon 
principles of mtemational law. International law is no alien in this 
tribunal. In The Paquete Habana, 175 U. S. 677, Mr. Justice Gray 
declared: — 

International law is part of our law, and must be ascertained and administered 
by the courts of justice of appropriate jurisdiction, as often as questions of right 
depending upon it are duly presented for their determination. 

And in delivering the opinion on the demurrer in this case Chief 
Justice Fuller said; — 

Sitting, as it were, as an international, as well as a domestic tribunal, we apply 
Federal law, State law, and international law, as the exigencies of the particular 
case may demand. 

In the further discussion of the case and of the evidence sub- 
mitted the court said : — 

It cannot be denied in view of all the testimony . . . that the dimi- 
nution of the flow of water in the river by the irrigation of Colorado has 
worked some detriment to the southwestern part of Kansas, and yet when 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 249 

we compare the amount of this detriment with the great benefit which 
has obviously resulted to the counties in Colorado, it would seem thit 
equality of right and equity between the two States forbids any inter- 
ference with the present withdrawal of water in Colorado for purposes 
of irrigation. 

In finally disposing of this case the court said : — 

The decree will also dismiss the bill of the State of Kansas as against 
all the defendants, without prejudice to the right of the plaintiff to in- 
stitute new proceedings whenever it shall appear that through a material 
increase in the depletion of the waters of the Arkansas by Colorado, its 
corporations or citizens, the substantial interests of Kansas are being 
injured to the extent of destroying the equitable apportionment of benefits 
between the two States resulting from the flow of the river. 

The case of Brickett v. Haverhill Aqueduct Co., 142 Mass. 
394, was an action of tort for diverting and obstructing a 
watercourse, thereby preventing water from flowing through 
the plaintiff's land. The diversion of the w^ater occurred in 
Massachusetts. The plaintiff was a citizen of Massachusetts, 
but the property alleged to have been injured was located in 
New Hampshire. The court in that case, speaking by Chief 
Justice Morton, said : — 

We do not deem it important that the land of the plaintiff which was 
injured was outside of the limits of this State. The language of the act 
is general, and puts all water rights upon the same footing, and applies 
to a proprietor outside the State. Such proprietor certainly has no 
greater rights than the citizen whose lands or water rights within the 
5tate are injured by the acts of the defendant under the authority of the 
Legislature. 

The rule of the common law as to the rights of riparian 
)wners has been frequently stated, and may be expressed in 
he following language: — 

The primary right of every riparian proprietor is to have the natural 
nd customary flow of the stream without obstruction or change. 

'his primary right is subject to the modification that — 

The right to flowing water is now well settled to be a right incident to 
roperty in the land; it is a right publici juris, of such a character that 
hilst it is common and equal to all through whose land it runs, and no 



250 OPINIONS OF THE ATTORNEY-GENERAL. 

one can obstruct or divert it, yet, as one of the beneficial gifts of Provi- 
dence, each proprietor has a right to a just and reasonable use of it as it 
passes through his land; and so long as it is not wholly obstructed or 
diverted, or no larger appropriation of the water running through it is 
made than a just and reasonable use, it cannot be said to be wrongful or 
injurious to a proprietor lower down. 

This is the rule between persons who are riparian proprietors 
on the same stream, and it prevails until a public necessity 
arises, when, like every other individual right of property, it 
gives way to the public need. In some of the western States, 
as shown by the case of Kansas v. Colorado, the common-law 
rule, even as applied to interstate streams, yields and is modi- 
fied by the great necessity of irrigating vast tracts of arid and 
desert land; and even though the public necessity arises in 
another State, the rule as to private ow^nership yields to it. 
The irrigation of waste and desert lands in Colorado may be, 
and undoubtedly is, a matter of transcendent importance, but 
who can measure or estimate the importance of an adequate 
supply of pure water for the use of the crowded, evergrowing 
industrial centers of the east? If the common-law rule yields 
as to interstate streams in the one case, it certainly ought to 
yield in the other. In each case the rule as to individual 
owners should yield to public necessity. 

It has been suggested that the city of Fitchburg does not 
need this supply. Of this question the Legislature must be 
the judge. In passing upon the question submitted to me I 
assume that the need exists. 

It has been further suggested that in the case of Kansas v. 
Colorado, above cited, the State of Kansas was not an individual 
owner, and that the case did not therefore decide the issues 
that would be involved in a suit by a citizen of Kansas against 
the State of Colorado; but, as I have stated above, Kansas in 
its bill of complaint set up the fact that it was an owner of 
land in the Arkansas valley which was damaged by the opera- 
tions of Colorado. The court itself noted the fact that " Kansas 
asserts a pecuniary interest as owner of certain tracts along the 
banks of the Arkansas River, and as the owner of the bed of 



J 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 251 

the stream." Kansas v, Colorado, 206 U. S. at p. 98. But 
the court, in view of the fact that its jurisdiction might be 
invoked by the State, as parens jmtria, trustee, guardian or 
representative of all or a considerable portion of its citizens, 
deemed it unnecessary to stop to consider especially the rights 
of private ownership. 

The objection to this bill seems to grow out of the idea that 
each State is a sovereign power. To a limited extent this is 
true; but however complete the rights and attributes of sov- 
ereignty of the States may have been before they entered the 
Union, there can be no question that when they entered the 
Union large and important attributes of sovereignity were sur- 
rendered by the States. The States may not lay any imposts 
or duties on imports or exports; may not make war upon each 
other or upon a foreign country; may not make treaties with 
each other or with foreign countries, and in cases of differences 
of a justiciable nature between them the Supreme Court of the 
United States is empowered to adjudicate between them. 
Rhode Island v. Massachusetts, 12 Pet. 657; Missouri v. Illinois, 
180 U. S. 208; Kansas v. Colorado, 206 U. S. 46. 
In a word, the States of this Union form a nation. 
If this bill passes and the waters of the Souhegan River are 
taken by the city of Fitchburg, citizens of New Hampshire 
whose property is injured by the taking, by reason of diverse 
citizenship, may at their election bring action under the pro- 
visions of this bill in the courts of the Commonwealth, or may 
bring suit in the District Court of the United States against 
the city, or may induce the State of New Hampshire to bring 
suit in the Supreme Court of the United States against this 
Commonwealth. I repeat that this bill does not present the 
3ase of taking or injuring the property of any person and 
leaving him without a remedy. This measure is in harmony 
vvith other legislation of this Commonwealth in regard to 
securing a water supply for cities, notably, with the legislation 
providing for the taking of the south branch of the Nashua 
Sliver, an interstate stream, as a supply for the metropolitan 
vater district. If this bill is unconstitutional, the metropolitan 



252 OPINIONS OF THE ATTORNEY-GENERAL. 

water act, being chapter 488 of the Acts of 1895, was and is 
unconstitutional, and the acts done under its provisions were 
without authority. 

In view of the trend of judicial decisions and of the course 
of legislation in this Commonwealth, which have been for years 
unchallenged, I am of the opinion that this bill, if enacted, 
will be constitutional. 



Constitutional Law — Freedom of Contract — Plumbers. 

A law providing that permits to perform plumbing work shall be issued only to 
master plumbers and that all work done thereunder shall be performed only 
by master plumbers or their designated journeymen plumbers would be 
unconstitutional. 

To the You have requested my opinion upon the following question 

May 21. "^ ^^^ ' 

Is it within the constitutional power of the General Court to enact a 
law providing that permits to perform plumbing work shall be issued only 
to master plumbers, and that all work done under such permits shall be 
performed only by the master plumber himself or by such journeymen 
plumbers as he may directly employ and supervise? 

You have submitted with your inquiry a copy of House 
Bill No. 1347, entitled "An Act relative to the supervision of 
plumbing." 

The question of constitutionality arises in regard to the first 
and second sections of the bill, which read as follows : — 

Section 1. The words "master plumber," as used in chapter one 
hundred and three of the Revised Laws, shall be deemed to mean a person 
who holds a Massachusetts state master plumber's license or certificate, 
and who has a regular established place of business conveniently situated 
and open for business during regular business hours, and who himself or 
by journeymen in his employ performs plumbing work for property 
owners, agents or tenants. 

Section 2. Permits to perform plumbing work shall be issued only to 
master plumbers as herein defined, and all work done under such permit 
shall be performed by the master plumber himself or by such journeymen 
plumbers as he may directly employ and supervise. 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 253 

A "journeyman" is defined as a workman or mechanic who 
has served his apprenticeship, specifically, a qualified mechanic 
employed in the exercise of his trade as distinguished from a 
master mechanic or foreman. 

This bill, if enacted, would prevent a journeyman plumber 
from making a contract to put the plumbing into a building or 
taking any other job of plumbing whatever, for the reason that 
no permit to do the work could lawfully be issued to him. 
And the bill goes further and prevents a master plumber who 
is so unfortunate as not to have a regular established place of 
business kept open for business during regular business hours, 
from making contracts for plumbing; and master plumbers who 
have regular places of business kept open for business during 
regular business hours, and whose places of business are not 
conveniently situated, are not to be regarded as master plumbers 
under the provisions of this bill, and would also fall within its 
prohibition. Thus this bill is not for a whole class, but its 
evident aim and object are to create a class within a class; 
that is, out of those who hold licenses as master plumbers it 
proposes to create a class of master plumbers. 

Article I. of Part the First of the Constitution of this 
Commonwealth declares: — 

All men are born free and equal, and have certain natural, essential 
md unalienable rights; among which may be reckoned the right of 
;njoying and defending their lives and liberties; that of acquiring, 
)ossessing, and protecting property; in fine, that of seeking and obtain- 
ng their safety and happiness. 

There are certain fundamental rights of every citizen which 
,re recognized in the organic law of all our free American States. 
i statute which violates any of these rights is unconstitutional 
nd void, even though its enactment is not expressly forbidden. 
hmmonwealth v. Perry, 155 Mass. 117. 

Under the police power, legislation to protect the health, 
lorals or safety of the community may be enacted, but that 
ower does not extend beyond these limits, and such legislation 
\ust bear a genuine relation to some one of the three subjects 



254 OPINIONS OF THE ATTORNEY-GENERAL. 

named. It necessarily follows that only such regulations will 
be sustained as are in fact necessary to the preservation of the 
public health, morals or safety, and the courts will declare 
arbitrary provisions invalid. Cotter v. Doty, 5 Ohio, 393. 

If, then, it be admitted that for the preservation of the 
public health men who seek to work at the business of plumb- 
ing should be required to pass an examination and procure a 
license, it comes far short of justifying an interference with the 
way in which a man who has passed the examination and 
obtained a license shall conduct his business. Nor does such 
an admission afford a reason for prohibiting such a man from 
carrying on his business as he sees fit in regard to location and 
in every other particular, so long as he is within the law. 

This proposed bill, if enacted, will interfere with the freedom 
of contract of journeymen plumbers, and, as above indicated, 
of certain master plumbers and of such property owners as 
may desire to make a contract for plumbing with a journey- 
man plumber or with a master plumber who has no regular 
place of business or whose place of business may, in the judg- 
ment of some one whose personality is not disclosed by the 
bill, be inconveniently located. 

Freedom of contract is not expressly mentioned in the Con- 
stitution, but the Supreme Judicial Court has declared that 
the right to acquire, possess and protect property, as set forth 
in Article I. of the Constitution, above quoted, includes the 
right to make reasonable contracts which shall be under the pro- 
tection of the law. Commonwealth v. Perry, 155 Mass. 117. 
The Constitution declares that all men have an unalienable 
right of seeking and obtaining their safety and happiness. 
Included in this right is the right to liberty in the choice of 
occupation, and to conduct and advertise it in any legitimate 
manner and subject only to such restraints as are necessary to 
the health, morals and safety of the community. Slaughter- 
House Cases, 16 Wall. 36; Dexter v. Blackden, 93 Me. 473; 
People V. Coldwell, 168 N. Y. 671; Allgeyer v. Louisiana, 165 
U. S. 578. 

"Liberty," as that term is used in the Constitution, means 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 255 

not only freedom of the citizen from servitude and restraint, 
but embraces the right of every man to be free in the use of 
his powers and faculties and to adopt and pursue such avoca- 
tion or calling as he may choose, subject only to the restraints 
necessary to secure the common welfare. Frorer v. People, 
141 111. 171; Commonwealth v. Perry, supra; People v. Gillson, 
109 N. Y. 389; Ruhstrat v. People, 49 L. R. A. 181. 
Our Supreme Judicial Court has said : — 

Constitutional liberty means "the right of one to use his faculties in 
all lawful ways, to live and work where he wiU, to earn his livelihood in 
any lawful calling, and to pursue any lawful trade or avocation." 
{O'Keeffe v. Somerville, 190 Mass. 110.) 

To be a master plumber within the provisions of this pro- 
posed measure one must have a regular established place of 
business conveniently situated. To whom must it be con- 
veniently situated? Whose convenience is referred to in the 
bill? Whose convenience must a man consult in setting up his 
plumber's shop and whose judgment is to prevail as to whether 
the business is conveniently situated or not? This provision, 
if enacted, will constitute a gross violation of the constitutional 
guaranty of personal liberty. 

Wi' Article IV. of Section I. of Chapter I. of Part the Second 
of the Constitution confers authority on the General Court to 
make, ordain and establish all manner of wholesome and 
reasonable orders, laws, statutes and ordinances. The pro- 
vision of this bill last referred to is so clearly unreasonable as, 
in my opinion, to be inimical to this provision of the Con- 
stitution. 

It is my opinion that your question must be answered in 
the negative, and that this bill, if passed, will be unconsti- 
tutional. 



256 OPINIONS OF THE ATTORNEY-GENERAL. 



Workmen's Compensation Act — Cities and Towns — 
Gypsy and Brown-tail Moth Suppression. 

The Commonwealth is not required to reimburse cities and towns which have 
adopted the workmen's compensation act and have incurred expenses on 
account of injuries sustained by employees while employed in suppression of 
gypsy and brown- tail moths. 

JAhe Cbmmo°n- ^o^ havc pcquested my opinion on the following question : — 

wealth. 

'91* Are cities and towns that have adopted the workmen's compensation 

act entitled to be reimbursed for expenses incurred by them on account 

of injuries sustained by their employees while emploj^ed in the sup- 
pression of gypsy and brown-tail moths? 

Section 1 of chapter 521 of the Acts of 1907 provides that — 

When any city or town shall have expended within its limits city or 
town funds to an amount in excess of five thousand dollars in any one 
fiscal year, in suppressing gypsy or brown-tail moths, the commonwealth 
shall reimburse such city or town to the extent of fifty per cent of such 
excess above said five thousand dollars. 

A more liberal rule as to small towns is established by 
statute. 

By section 6 of chapter 807 of the Acts of 1913, providing 
for the adoption of the workmen's compensation act by certain 
cities and towns, the following provision is made in regard to 
employees of the Commonwealth: — 

For the purposes of this act all laborers, workmen and mechanics paid 
by the commonwealth, but serving under boards or commissions exercis- 
ing powers within defined districts, shall be deemed to be in the service 
of the commonwealth. 

From your inquiry it appears that laborers or workmen 
engaged in the suppression of gypsy or brown-tail moths in 
cities and towns are employed by such cities and towns, and 
are neither employed nor paid by the Commonwealth. The 
State is therefore under no obligation to pay for injuries sus- 
tained by such laborers unless such expense is authorized by 
chapter 521 of the Acts of 1907, and that act, in my opinion, 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 257 

does not contain such a provision. The Commonwealth is 
required under the law to reimburse cities and towns to the 
extent of 50 per cent, of the excess above $5,000 expended by 
them for suppressing gypsy or brown-tail moths, not for 
expenses incurred by reason of injury to an employee. It is 
my opinion that your question must be answered in the 
negative. 



Minors — Hours of Labor — • Liability of Employers and 

Parents. 

Under St. 1913, c. 831, an employer of a minor who has been duly notified that 

such employee is being employed for a greater number of hours per week 

than is authorized by statute is criminally liable. 
Under said c. 831, a parent, guardian or custodian of a minor employed for a 

greater number of hours per week than is authorized by statute is criminally 

liable without notice. 

You request my opinion upon the following question : — To the 

State Board 

May a mmor, under sections 8 and 9 of chapter 831 of the Acts of 1913, industries." 
work sLx days in one establishment and on the seventh day work for ^ay 25. 
another employer in connection with another mercantile establishment? 
For example, may a minor fifteen years of age work six days a week, 
with a total of forty-eight hours, for a department store, and on the 
seventh day work six hours in connection with a mercantile establish- 
ment at a summer resort? 

I assume from the wording of your question that the two 
employers are entirely independent of each other, that neither 
has any interest whatever in the business of the other, and 
that there is no collusion between them. You do not state 
(and I therefore assume) that the employer for whom the boy 
works on Sunday has not had any notice that the boy has 
been employed regularly during the six working days of the 
week. 

Under such circumstances there can hardly be any criminal 
liability on the part of either employer. 

You do not state whether the boy in question has any 
parent, guardian or custodian. Under the circumstances I beg 



258 OPINIONS OF THE ATTORNEY-GENERAL. 

to direct your attention to sections 20 and 23 of chapter 831 
of the Acts of 1913, which provide as follows: — 

Section 20. Any person who, whether by himself or for others, or 
through agents, servants or foremen employs, induces or permits any 
minor to work contrary to any of the provisions of tliis act, shaU be 
deemed guilty of a misdemeanor, and shall, for a first offence, be punished 
by a fine of not less than ten dollars nor more than fifty dollars, or by 
imprisonment for not more than thirty days, or by both such fine and 
imprisonment; and for a second or subsequent offence, by a fine of not 
less than fifty dollars nor more than two hundred dollars or by imprison- 
ment for not more than sixty days, or by both such fine and imprisonment. 

The employment of any minor in violation of any provision of this act 
after the person employhig such minor has been notified thereof in writ- 
ing by any authorized mspector, school attendance officer or truant 
officer, shall constitute a separate offence for everj)- day during which the 
employment contmues. 

Section 23. Any parent, guardian or custodian having a minor under 
his control, who compels or permits such minor to work in violation of 
anj'' provision of this act, or who knowingly certifies to any materially 
false statement for the purpose of obtaining the illegal employment of 
such minor, shall be deemed guilty of a misdemeanor, and, upon con- 
viction, shall for the fhst offence be punished by a fine of not less than 
two dollars nor more than ten dollars, or by imprisonment for not more 
than five days, or by both such fine and imprisonment; and for a second 
or subsequent offence he shall be punished by a fine of not less than five 
dollars nor more than twenty-five dollars, or by imprisonment for not 
more than ten daj^s, or by both such fine and imprisonment. 

By causing the proper notice to be given under section 20 
to the employer for whom the boy works on Sunday, it seems 
clear that you would make that employer liable if he did not 
cease to employ the boy on that day. The parent, guardian 
or custodian of the boy would seem to be liable without any 
notice from an inspector or other official. 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 259 

Constitutional Law — Boston Transit Commission — 
Extension of Term of Office by Legislature. 

It is within the constitutional authority of the Legislature to extend the term of 
office of officers created by an act of the Legislature. 

You have requested mj^ opinion as to the constitutionality To the House 
of Senate Bill No. 102, entitled "An Act to extend the term of sentatives. 

1914 

office and to define the duties of the members of the Boston ^^y ^^ - 
Transit Commission," which provides as follows: — 

Section 1. The term of office of the members of the Boston transit 
commission is hereby extended for three years from the first day of July 
in the year nineteen hundred and fourteen. 

Section 2. The powers, duties and compensation of said commission 
during said term of three years shall be the same as are specified in 
chapter five hundred and forty-eight of the acts of the year eighteen 
hundred and ninety-four and in acts in amendment thereof or in addition 
thereto, except as hereinafter provided. Any vacancy in said commis- 
sion shall be filled m the manner provided in said chapter five hundred 
and forty-eight. 

It is suggested that this bill, if enacted, may interfere with 
the executive functions of the Governor. 

The Governor is the supreme executive magistrate of the 
Commonwealth. Mass. Const., c. II., § I., art. I. But the 
power to make appointments is not necessarily a function of 
or an appurtenance to the executive office. In the Consti- 
tutions of the States of the L^nion there appears to be no 
distinct rule as to the distribution of authority to make ap- 
pointments to office. Some States confer upon the Executive 
a much larger measure of power in this respect than others. 
The Constitution of this Commonwealth provides that all 
judicial officers shall be nominated and appointed by the 
Governor by and with the advice and consent of the Council. 
Mass. Const., c. II., § I., art. IX. The fourth amendment to 
the Constitution provides that notaries public shall be ap- 
pointed by the Governor in the same manner as judicial 
officers are appointed. The Governor is also given power 
under certain circumstances to make appointments to fill 
vacancies in certain executive offices. 



260 OPINIONS OF THE ATTORNEY-GENERAL. 

The Constitution confers upon the Legislature large powers 
in the matter of appointments to civil office. By Article IV. 
of Section I. of Chapter I. of the Constitution full power and 
authority are given and granted to the General Court — 

... to name and settle annually, or provide by fixed laws for the 
naming and settling, all civil officers within the said commonwealth, the 
election and constitution of whom are not hereafter in this form of govern- 
ment otherwise provided for. 

Since the adoption of the Constitution the Legislature has 
in repeated instances enacted laws changing the term or tenure 
of a civil office. Several of these acts have been carried to the 
Supreme Judicial Court in litigation, and the constitutionality 
of legislation of this kind has always been sustained. 

In the case of Ta^t v. Adams, 3 Gray, 126, Chief Justice 
Shaw said : — 

* Where an office is created by law, and one not contemplated, nor its 
tenure declared by the Constitution, but created by law solely for the 
public benefit, it may be regulated, limited, enlarged or terminated by 
la"w, as public exigency or policy may require. 

See, also. Opinion of the Justices, 117 Mass. 603, 604; Donaghy 
V. Macy, 167 Mass. 178; Opinion of the Justices, 165 Mass. 599. 

In Barnes v. Mayor of Chicopee, a case in which the plaintiff 
sought to be reinstated in the office of chief of police of the 
city of Chicopee, from which he claimed to have been removed 
wrongfully. Chief Justice Rugg said : — 

It is within the power of the Legislature to lengthen or shorten the 
tenure of such an office or to place its incumbents under operation of the 
civil service law. {Barnes v. Mayor of Chicopee, 213 Mass. 1.) 

In a New York case it was said that — 

Where an office is created by statute it is wholly within the control of 
the Legislature. The term, the mode of appomtment and the com- 
pensation may be altered at pleasure. {Connor v. City of New York, 
2 Sandford, 355.) 

This case was affirmed by the Court of Appeals of the State 
of New York. (1 Selden, 285.) 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 261 

While these cases may not be precisely in point, they indicate 
the trend of judicial opinion upon questions very similar in 
character to the one presented by this bill. 

The offices of the members of the Boston Transit Commis- 
sion are not among those named in the Constitution but fall 
within the class of civil officers specified in Article IV. of 
Section I. of Chapter I. of the Constitution, above quoted. 
This commission was created, not by the Constitution itself 
but by act of the Legislature. 

The result of my examination of this question and of the 
authorities is that this bill, if enacted, will not interfere with 
any constitutional right or function of the Governor. 



Cities and Towns — Municipal Debts — Bonds and Notes. 

A town or city has no authority to issue notes or bonds for the purpose of refunding 
sums of money previously raised and expended for municipal purposes. 

You have submitted copies of the records of certain votes To the 

Director of 

passed by town meetings of the town of Swampscott, and |'j^t?^^^^°^ 
among others, of a vote adopted at the last annual town j^^g^jo 
meeting of that town, and have asked to be advised whether 
you may properly construe the statute as permitting the town 
to incur indebtedness under the vote passed at the annual 
town meeting held Feb. 16, 1914. The warrant for that 
meeting contained the following article: — 

Article 41. — To see if the town wiU vote to refund to the treasury the 
sum of $4,200 expended for laying water pipes in Crosman Avenue and 
for replacing water pipes on Galloupe's Point, and making appropriatjoDS 
therefor. 

Under this article the town voted — 

To adopt the report of the ways and means committee appropriating 
the sum of S4,200 for the purpose of refunding to the treasury the amount 
expended in laying water pipes in Crosman Avenue and replacing the 
water pipes at Galloupe's Point, and that this sum be raised by the issu- 
ance of notes or bonds of the town. 



262 OPINIONS OF THE ATTORNEY-GENERAL. 

Sections 5 and 6 of chapter 719 of the Acts of 1913 and 
chapter 634 of the Acts of 1913 specify the purposes for which 
cities and towns may incur debt other than temporary loans; 
and section 7 of chapter 719 which prohibits the incurring of 
debt by cities and towns for purposes other than those specified 
by statute reads as follows : — 

Cities and towns shall not incur debt for any purpose or for any period 
of time other than as specified in tliis act or in chapter six hundred and 
tliirty-four of the acts of the year nineteen hundred and thirteen, and the 
proceeds of any sale of bonds or notes, except premiums, shall be used 
only for the purposes specified in the authorization of the loan : provided, 
hoivever, that transfers of unexpended amounts may be made to other 
accounts to be used for similar purposes. 

The purpose for which it is proposed to incur this indebted- 
ness is not one specified or permitted by the statute, and falls 
clearly within the prohibition of section 7 last above quoted. 

The case presented by your inquiry seems to afford a very 
close parallel to the case of Chapin et al. v. Toivn of Lincoln, 
recently decided by the Supreme Judicial Court. In that case 
the tenth article of the warrant for the town meeting held b}' 
adjournment in the town of Lincoln on March 8, 1913, was as 
follows : — 

To see if the town will issue water bonds pursuant to the Acts of 1907, 
chapter 476, and reimburse the treasury on account of monej'' paid from 
the treasury pending an issue of bonds on account of payments for water 
construction purposes. 

Under this article it was voted — 

That the town treasurer be authorized and directed to issue the bonds 
of the town for the sum of S6,000, each bond to be for $500. 

In its opinion in this case the court said : — 

The single justice has made a finding that the purpose of issuing bonds 
under this vote was to reimburse the town for sums that had been appro- 
priated in earUer years for three extensions of the water works of the 
town: one of the extensions having been made under an article of the 
aimual meeting of March, 1911, and the other two under articles of the 



1 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 263 

annual meeting of IMarch, 1912. And he has expressly found that all 
of these extensions " had been made and paid for before the vote of March 
8, 1913, from money raised by taxation." 

In neither of these three instances did the town express any iiitention 
to provide funds for the proposed municipal improvement by borrowing 
money under its water acts. Sts. 1872, c. 188; 1907, c. 476. It did not 
even undertake to vote that the money in the town treasury should be 
used temporarily for water purposes "pending an issue of bonds," as it 
appears to have done on some other occasions. In fact, in the second 
and most important case, when it appropriated $4,267, specific provision 
was made for the payment of this sum without an issue of bonds, namely, 
by using the special w'ater works sinkmg fund and the receipts from the 
water works. 

There is no indebtedness incurred or contemplated bj^ the town to 
warrant the proposed loan. There is no unfunded debt on account of 
the extensions referred to. It does not follow that because the town 
might have borrowed money for these extensions at the time they were 
voted, it can do so now after they are paid for. See St. 1913, c. 719, as 
amended by St. 1914, c. 143. . . . 

We are in accord' with the opinion of the single justice, that an in- 
junction should issue as prayed for, restraining the respondents from 
issuing bonds under the vote passed March 8, 1913. 

This statement of the law covers very fully your inquiry. 
So far as appears from the statement of facts accompanying 
your inquiry the town of Swampscott, like the town of Lincoln 
in the case above referred to, has incurred no indebtedness nor 
is any contemplated to justify the proposed loan. In the 
Swampscott case, as in the Lincoln case, the purpose is to 
refund or reimburse the treasury for money already expended, 
which, as above stated, is not one of the purposes for which the 
statute permits indebtedness to be incurred. 

In matters of this kind the only safe rule is the rule of strict 
construction. Municipal corporations are simply agencies of 
government for certain well-defined purposes and discharge such 
functions only as are conferred upon them by law. To permit 
the issue of commercial paper by tow^ns and cities for purposes 
not authorized by statute would expose investors to loss and 
taxpayers to the expense of tedious and vexatious litigation. 

It is my opinion that your question must be answ^ered in the 
negative. 



264 OPINIONS OF THE ATTORNEY-GENERAL. 



State Board of Education — Textile Schools. 

The Commissioner of Education has statutory powers over all educational work 
supported in whole or in part by the Commonwealth, including textile 
schools. 

To the Com- You liavc requested mv opinion as to the nature and scope 

mission on . 

EffideSf""'^ of the supervisory powers possessed by the State Board of 
jun^^io. Education, with special reference to State aided or supported 

textile schools, and as to the need of further legislative defi- 
nition of such supervisory powers. 

The supervisory powers of the State Board of Education over 
textile schools seem to be vested in the Commissioner of Edu- 
cation and his deputies. Chapter 421 of the Acts of 1913 
provides as follows : — 

The board shall appoint a commissioner of education whose term of 
office shaU be five years, and may fix his salary at such sum as the governor 
and council shall approve. Said commissioner may at any time be re- 
moved from office by a vote of six members of the board. He shall 
exercise the powers and perform the duties now conferred or imposed by 
law on the secretary of the board of education. He shall be the executive 
officer of the board, shall have supervision of aU educational work sup- 
ported in whole or m part by the commonwealth, and shall report thereon 
to the board, and, when so authorized by the board, may approve bills for 
expenditures from appropriations and funds placed under the direction 
of the board. The board shaU also appoint two deputy commissioners, 
one of whom shall be especially qualffied to deal with industrial education. 
The powers, duties, salaries and terms of office of said deputy commis- 
sioners shall be such as may be established from time to time by the 
board, but the board may, by a vote of six members thereof, remove from 
office at any time either of said deputy commissioners. The board may 
be allowed for rent, salaries of the coramissioner, the deputies, agents, 
assistants and clerical service, and for travelling and other necessary ex- 
penses of the commissioner, the deputies, agents, and of the board incurred 
in the performance of their official duties, such sum as shall be appro- 
priated by the general court annually, payable out of the treasury of the 
commonwealth. 

This statute gives the Commissioner of Education ample 
supervisory powers over all educational work supported in 
whole or in part by the State, which certainly includes textile 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 265 

schools, whether supported wholly by the State or receiving 
aid therefrom, and by this statute it is made a part of the duty 
of the Commissioner of Education to report to the State Board 
upon all educational work under his supervision. 

The statute provides for two deputy commissioners of educa- 
tion and requires that one shall be especially qualified to deal 
with industrial education. While this phrase undoubtedly 
applies to schools devoted to vocational education, so called, in 
the various cities and towns, it also includes textile schools. 

There is now certainly sufficient statutory authority to 
warrant the Commissioner of Education in supervising and 
making report upon textile schools. The question of the need 
of further legislation in regard to this matter is for the Legis- 
lature to determine, and not for this department. 



Constitutional Law — Great Ponds — Regulation of the 

Price of Ice. 

A law authorizing a commission to fix the price at which ice shall be sold when 
it haF been taken from great ponds of the Commonwealth or from bodies 
of water under the control of such commission would be constitutional. 

You have requested my opinion upon the following ques- To the senate. 

tion: J une 12 . 

j Is it within the constitutional jDower of the General Court to enact a 
aw authorizing a board or commission of the Commonwealth to fix the 
)rice at which ice shall be sold to families by individuals or corporations, 
vhen such ice has been taken from ponds or other bodies of water under 
he supervision and control of said board or commission? 

In making answer to your inquiry two questions are presented 
or examination: First, as to rights of individual ownership, if 
ny, in the public waters, chiefly and perhaps entirely for the 
lurposes of your inquiry in great ponds of the Commonwealth; 
nd second, as to the extent of the authority of the Legislature 
ver these bodies of water. 

The title to the great ponds was taken by the sovereign 



266 OPINIONS OF THE ATTORNEY-GENERAL. 

power, and their use granted to the people by a very early 
colonial ordinance, and, except for certain special grants, has 
remained to this day as it was fixed by the colonial ordinance. 
By section 16 of the Bodie of Liberties, supposed to have 
been enacted in 1641, it was provided that — 

Every Inhabitant that is an howse holder shall have free fishing and 
fowling in any great ponds and Bayes, Coves and Rivers, so farre as the 
sea ebbes and flowes within the presincts of the towne where they dwell, 
unlesse the free men of the same Towoe or the Generall Court have other- 
wise appropriated them, provided that this shaU not be extended to give 
leave to any man to come upon others proprietie without there leave. 

This ordinance was at some time between 1641 and 1647 
amended so as to provide : — 

Every Inhabitant who is an householder shall have free fishing and 
fowling in any great ponds, bayes Coves and Rivers, so farr as the Sea 
ebbs and flowes, within the precincts of the towne where they dwell, unles 
the freemen of the same Town or the General Court have otherwise 
appropriated them. Provided that no Town shall appropriate to any 
particular person or persons, any great Pond containing more than ten 
acres of land, and that no man shall come upon anothers propriety with- 
out their leave otherwise then as hereafter expressed. The which clearly 
to determine. It is Declared, That in all Creeks, Coves and other places, 
about and upon Salt-water, where the Sea ebbs and flowes, the proprietor 
of the land adjoining, shall have propriety to the low- water-mark, where 
the Sea doth not ebb above a hundred Rods, and not more wheresoever it 
ebbs further. Provided that such proprietor shall not by this liberty, 
have power to stop or hinder the passage of boates or other vessels, in or 
through any Sea, Creeks or Coves, to other mens houses or lands. And i 
for great Ponds lying in common, though within the bounds of some 
Town, it shall be free for any man to fish and fowle there, and may pass 
and repass on foot through any mans propriety for that end, so they tres- 
pass not upon any mans Corn or Meddow. 

From the time of this later enactment great ponds in this 
Commonwealth have been and still are public property. Efforts 
have been made from time to time by individuals to establish 
rights of private ownership in great ponds, and cases involving 
claims of private ownership have in repeated instances been 
carried to the Supreme Judicial Court. 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. -6< 

In the case of Fay v. Salem & Banvers Aqueduct Co., Ill 
Mass. 27, the petitioner sought to recover damages for the 
taking of water from Spring Pond, a pond having an area of 
about sixty acres, for its aqueduct, whereby the dwelling house 
of the petitioner situated on the shore of said pond would be- 
come uncomfortable and unfit for habitation. The court held 
that "by the law of Massachusetts great ponds are public 
property," and further said that the petitioner had no title 
"except that derived from deeds of lands partly surrounding 
the pond on the side opposite the outlet, and bounded 'by the 
pond.* The title acquired by such deeds extended only to 
low-water mark, and did not aflFect the rights of the public in 
the pond," and dismissed the petition. 

In another case action was brought by certain private parties 
seeking to restrain another individual from cutting and har- 
vesting ice in Fresh Pond, which has an area of about one 
hundred and eighty-three acres. It appeared that the riparian 
owners of the entire shore of Fresh Pond had, by agreement 
among themselves, apportioned to each a certain part of the 
area of the pond; that these proprietors generally cut ice to be 
shipped and also to supply the local demand, and that the 
business was very large, at times more than a thousand men 
being employed. The Supreme Judicial Court declared that — 

By the law of Massachusetts, great ponds, not appropriated before the 
colony ordinance of 1647 to private persons, are public property, the 
right of reasonably using and enjoying which, for taking ice for use or 
sale, as well as for fishing and fowling, boating, skating, and other lawful 
purposes, is common to all, and in the water or ice of which, or in the 
land under them, the owners of the shores have no peculiar right, except 
by grant from the Legislature, or by prescription, which implies a grant. 
Anc. Chart. 148. Cummings v. Barrett, 10 Cush. 186; West Rozbunj v. 
Stoddard, 7 Allen, 158; Paine v. Woods, 108 Mass. 160; . . . Fay v. 
Salem & Banvers Aqueduct Co., Ill Mass. 27. (Hittinger v. Fames, 121 
Mass. 539.) 

In the case of Rockport v. Webster, 174 Mass. 385, the town 
of Rockport, having taken the waters of Cape Pond for a water 
iupply, sought to prevent the defendant from taking ice there- 
"rom. The defendant replied that he had been for years a 



268 OPINIONS OF THE ATTORNEY-GENERAL. 

riparian owner of land upon the shore of said pond, with an 
established ice business thereon consisting of cutting and pre- 
paring ice for sale. In the discussion of this phase of the case 
the Supreme Judicial Court said: — 

While it is true that the defendant is a riparian owner of lands upon 
the shores of the pond, with an established business of cutting and stor- 
ing ice for sale, still, in the absence of any grant from the Legislature, 
or by prescription, he has no peculiar right thus to cut ice, and he must 
stand or fall in that respect with the general public. Hittinger v. Fames, 
121 Mass. 539. {Rockyori v. Webster, 174 Mass. 385, 390.) 

To the effect that there are no private rights of property in 
great ponds is the case of Sprague v. Minon, 195 Mass. 581. 

The authorities are uniform and entirely conclusive against 
the assertion of rights of private ownership in any of the great 
ponds; and there is therefore no constitutional objection to 
the proposed regulation upon the ground that it may interfere 
with private ownership. 

Taking up the question as to the authority of the Legis- 
lature to enact the proposed legislation, it again appears that 
a considerable number of cases involving this right have been 
passed upon by the Supreme Judicial Court. 

In the case of Fay v. Salem & Danvers Aqueduct Co., above 
cited, the court declared not only that great ponds are public 
property, but that their use for "taking water or ice, as well 
as for fishing, fowling, bathing, boating or skating, may be 
regulated or granted by the Legislature at its discretion." 

In repeated instances the Commonwealth has leased the 
fishing rights in great ponds to certain individuals to the ex- 
clusion of all others. In passing upon a case in which the de- 
fendant set up his right to fish in a great pond in disregard of 
such a lease executed by the Commonwealth, the Supreme 
Judicial Court, referring to the ordinance hereinbefore quoted, 
said : — 

This ancient ordinance, in its amended form, is the foundation of our 
law upon this subject. While it prohibits the to^ns from granting away 
ji;rcat ponds, it expressly affu'ms their power to regulate the fisheries, 
both in such ponds and in tidewaters, and that of the Legislature to 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 269 

dispose either of great ponds (as well of bays, coves and rivers within the 
ebb and flow of the tide), or of the common rights of fishing and fowling 
in them. It has ever since been held that the right of fishing, both in 
the tidewaters and m the great ponds, belongs to the public, unless other- 
wise appropriated by the Legislature, or by the to\vns acting under its 
authority. 

In the further discussion of this question the court said : — 

The power of the Legislature of the Commonwealth over the public , 

rights of navigation and fishhig 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; Oilman v. Philadelphia, 3 Wallace, 713. The Legislature of a 
State has the power to regulate the time and manner of fishing in the sea 
within its limits; and, according to the opinions of most respectable 
judges, may even grant exclusiv^e rights of fishing at particular places in 
tidewater. Burnham v. Webster, 5 Mass. 266; Dunham v. Lamphere, 
3 Gray, 268; Smith v. Maryland, IS How. 71. ... 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 restric- 
tion upon its authority to regulate the public right of fishing, or to make 
any grants of exclusive rights wliich do not impair other private rights 
already vested. Nickerson v. Brackett, 10 Mass. 212; Cleveland v. Norton, 
6 Cush. 380; Ricssell v. Russell, 15 Gray, 159. {Commonicealth v. Vin- 
cent, 108 Mass. 441.) 

In many instances the Legislature has granted the control of 

the waters of great ponds to corporations, with authority to 

sell the water for domestic use. The right of the Legislature 

to regulate the price at which water from a great pond may 

be sold by such a corporation appears to be recognized fully 

in the case of Gardner Water Co. v. Inhabitants of Gardner, 

185 Mass. 190. The facts in that case, briefly stated, were 

that the Gardner Water Company, having established itself 

n the business of taking w^ater from Crystal Lake and selling 

t to the residents of Gardner, and the town desiring to take 

)ver the corporate property of the water company, a board 

)f commissioners w^as appointed to ascertain and determine the 

alue of the corporate property. The commissioners reported 

hat the corporation — 



270 OPINIONS OF THE ATTORNEY-GENERAL. 

was entitled, whenever the town of Gardner should take advantage of 
the option of purchase granted to it by section 9, to the fair value at that 
time of the right to use and sell the waters of Crystal Lake (and any 
other waters that may have been acquired by the company under the 
provisions of sections 2 and 3) for the purpose of furnishing the inhabitants 
of the town of Gardner with water for the purposes enumerated in section 
1; subject to the right of the State to regulate the rates charged by the 
company (but not to establish rates so low as to be obnoxious to the pro- 
visions of the State or Federal Constitutions), to authorize competition 
(either public or private) from water sources other than those held by 
the companj', to revoke the company's right to use the public ways of 
Gardner for its pipes and hydrants (thus leaving the company with the 
right only to sell its waters wholesale to a distributing company or the 
town, or to distribute thi'ough pipes laid exclusively on private land), to 
revoke the company's charter, to dispose of any part of the waters of the 
lake not required for the supply of the inhabitants of Gardner, to control, 
lease, or sell the use of the lake for fishing, boating, ice cutting, and other 
purposes not interfering with its use for a water supply in Gardner, to 
control the operations of the company and its use of the water of the 
lake to the extent reasonably necessary to protect the purity of the water, 
and otherwise to exercise over the company the police power of the 
State within the limits set by the State and Federal Constitutions. . . . 

In adopting this basis of valuation we assume that the Legislature con- 
templated that the town, in purchasing the property, rights and privileges 
of the company, would act in its private or proprietary capacity as a 
business corporation, and that the price should be fixed as if the purchase 
authorized bj^ section 9 was to be made by a private corporation. 

We include in the e.Kpression "water rights," as used in this ruling, all 
the rights, privileges and franchises obtained by the company under its 
charter to sell and distribute the waters of Crystal Lake in the town of 
Gardner, except the right to lay and maintain pipes, etc., in the public 
streets, the right to take property by eminent domam, and the other 
rights considered separately below in 7. 

In valuing the company's water sources as defined above, the control 
and rights of the State in or over the same as therein set forth are to be 
borne in mind, as also the probability or improbability that these powers 
wiU in fact be exercised. 

The town objected to that part of the report above quoted 
upon the ground that "a grant by the State of rights in or to 
the lake or the waters thereof w^hich entitled the company to a 
valuation on the basis set forth in the report would deprive the 
public of that beneficial use to which it is entitled." It should 



J 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 271 

be noted that one element in the basis of valuation was the 
right of the State to regulate the rates charged by the company, 
but not to establish rates so low as to be obnoxious to the pro- 
visions of the State and Federal Constitutions. The Supreme 
Judicial Court held that there vras no error in the part of the 
report of the commissioners that was objected to. 

There is no doubt that control of the great ponds in the 
public interest is in the Legislature that represents the public. 
It may regulate and change these public rights or take them 
away altogether to serve some paramount interest. Sprague 
V. Minon, 195 Mass. 581. 

Such legislation may be enacted under the sovereign power 
of the State to control and regulate our public rights. Syrague 
V. Minon, supra. 

The right of the individual citizen to the use of the great 

ponds for the purpose of cutting and harvesting ice is a right 

that exists by virtue of the grant contained in the ancient 

ordinance above set forth. It is a public grant, and it is the 

settled law of this Commonwealth that in making any public 

:i;rant the State may impose such terms as it sees fit, and where 

10 contractual relations are established between the grantee 

md the Commonwealth it may impose such regulations upon 

;he grant after it is made as it sees fit. It may relieve the 

!;rantee from the payment of any damages for the taking of 

)ublic property or it may require compensation to be made to 

)rivate persons where no legal right has been interfered with, 

s in the case where land is taken for railroads and other 

)ublic works. Rockport v. Webster, 174 Mass. 385; Parker v. 

iosio7i & Maine R. R., 3 Cush. 107; Trowbridge v. Brookline, 

44 Mass. 139. 

This statement might be further elaborated by reference to 

imiliar instances of the imposition of terms and regulations 

pon a public grant or franchise. 

The enactment of such a regulation does not involve the 
ommonwealth nor any municipality within it in the business 
' harvesting and selling ice. 
It is my opinion that the enactment of such a law as is 



i 



272 OPINIONS OF THE ATTORNEY-GENERAL. 

suggested by your inquiry would be simply the regulation of a 
public right by the imposition of terms upon the grant of the 
right to take ice from great ponds to be sold to consumers, and 
that such a statute, if enacted, would not be obnoxious to any 
provision of the Constitution. 



Constitutional Law — Contracts — Boston Consolidated 

Gas Company. 

St. 1906, c. 422, does not constitute a contract between the Commonwealth and 
the Boston Consolidated Gas Company, and the Legislature has authority 
to alter the provisions regulating the price of gas. 

of'ReprS""**^ You liavc requested my opinion upon the following ques- 
tion : — 



sentatives 

1914 
June 22 



Whether or not the provisions of chapter 422 of the Acts of the year 
1906 constitute a contract between the Commonwealth and the Boston 
Consolidated Gas Company; and whether the provisions of the said 
chapter relating to the price of gas may lawfully be changed by the 
General Court without the assent of said company. 

In connection with your request you have submitted a copy 
of House Bill No. 1674, amending chapter 422 of the Acts of 
1906. That part of said chapter that would be affected by the 
passage of this bill is as follows : — 

Section 1. From and after the thirtieth day of June in the year 
nineteen hundred and sLx, the standard price to be charged by the Boston 
Consolidated Gas Company for gas supplied to its customers shall be 
ninety cents per one thousand cubic feet, which price shall not there- 
after be increased except as hereinafter provided. From and after the 
said date the standard rate of dividends to be paid by said company to 
its stockliolders shall be seven per cent per annum on the par value of its 
capital stock, which rate shall not thereafter be increased except as here- 
inafter provided. 

Section 2. If during any year ending on the thirtieth day of June 
the maximum net price per thousand cubic feet charged bj^ the company 
has been less than the standard price, the companj^ may during the 
following year declare and pay dividends exceeding the standard rate in 
the ratio of one fifth of one per cent, for every one cent of reduction ot 
said maximum net price below the standard price. 



i 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 273 

Chapter 422 of the Acts of 1906 operated as an amendment 
of the original charter granted to the Boston ConsoHdated Gas 
Company. 

The answer to your entire inquiry, therefore, will be settled 
by the determination of the single question. Did the enact- 
ment of chapter 422 of the Acts of 1906 and its acceptance by 
the Boston Consolidated Gas Company constitute a contract 
between the Commonwealth and that company? 

Beyond any question, if a contract was made the proposed 

bill, if enacted, would be unconstitutional; and also beyond 

iny question, if a contract was not created between the two 

parties the rates to be charged by the company may be further 

•egulated by the Legislature, subject only to the provision that 

hey must not be fixed at so low a rate as to be really con- 

iscatory. A contract between the State and a public service 

orporation is very different from the enactment of a statute 

egulating the conduct and management of, and fixing maximum 

ates to be charged to the public by, the corporation. 

Your question arises under the Federal Constitution. It has 

een said that — 

The term "contract" is used in the (Federal) Constitution in its 
•dinary sense, as signifying the agreement of two or more minds, for 
)nsiderations proceeding from one to the other, to do, or not to do, 
Ttain acts. Mutual assent to its terms is of its very essence. 
'.ouisiana v. Pilshury, 105 U. S. 27S.) 

The charter of a corporation created by the State is a con- 
act and is in all particulars inviolable, unless in the charter 
self, or in some general or special law subject to which it was 
ken, there is a power reserved to the Legislature to alter, 
nend or repeal. Commonwealth v. New Bedford Bridge, 2 
ray, 339; Charles River Bridge v. Warren Bridge, 7 Pick. 344. 
The original charter of the Boston Consolidated Gas Com- 
j ny, St. 1903, c. 417, contains no provision for its alteration, 
Jiendment or repeal by the Legislature, nor does chapter 422 
( the Acts of 1906, referred to in your inquiry, contain such a 
lovision; but when those acts were passed it was the general 



274 OPINIONS OF THE ATTORNEY-GENERAL. 

law of the Commonwealth that every act of incorporation 
should be subject to amendment. Section 3 of chapter 109 of 
the Revised Laws provides that "ever}' act of incorporation 
passed since the eleventh day of March in the year eighteen 
hundred and thirty-one shall be subject to amendment." 

This statute, first introduced into the general legislation of the Com- 
• monwealth by St. 1830, c. 81, and re-enacted in the Rev. Sts., c. 44, 
par. 23, and the Gen. Sts., c. 68, par. 41, has been as much a part of all 
charters since granted as if inserted therein ; and was manifesth^ adopted 
with the intention of reserving for the future a fuller parliamentary or 
legislative power than would otherwise be consistent with the effect to 
be allowed to the special terms of particular charters, under the judicial 
construction of the constitutional prohibition against impairing the 
obligation of contracts. The extent of the power reserved by such an 
enactment has been the subject of some diversity of judicial opinion, 
and a definition of its extreme limit is not necessary to this case. It is 
suflScient now to say that it is established by adjudications which we 
cannot disregard, and the principles of which we fully approve, that it 
at least reserves to the Legislature the authority to make any alteration 
or amendment in a charter granted subject to it, that will not defeat or 
substantially impair the object of the grant, or any rights which have 
vested under it, and that the Legislature may deem necessary to secure 
either that object or other public or private rights. (Commissioners on 
Inland Fisheries v. Holyoke Water Pmver Co., 104 Mass. 446, 451.) 

It is a familiar rule that public grants will be strictly construed against 
the grantee, and rights conferred by a public grant will not be extended 
beyond the clear meaning of the language in which they are made. 
Grants of franchises are usually prepared by those interested in them 
and submitted to the Legislatures with a view to obtain the most liberal 
grant obtainable; and for this and other reasons such grants should be 
in plain language, certain, definite in nature and contain no ambiguity 
in their terms, and will be strictly construed against the grantee. {Blair 
V. Chicago, 201 U. S. 400.) 

Referring to the strictness with which charters granted are to 
be construed, the courts have laid down the doctrine that the 
State is to be held' to have granted only such powers or im- 
munities as are specifically or unequivocally stated, or as are 
unavoidably implied therein. Willoughby on the Constitution, 
Vol. II., p. 898. 



I 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 275 

The Supreme Court of the United States has said of this 
class of cases: — 

The rule of construction is that it sliall be construed most strongly 
against the corporation. Every reasonable doubt is to be resolved 
adversely. Nothing is to be conceded but what is given in unmistakable 
terms or by an implication equally clear. The affirmative must be 
shown. Silence is negation, and doubt is fatal to the claim. {North- 
western Fertilizing Co. v. Hijde Park, 97 U. S. 659.) 

Coosaw Mining Co. v. South Carolina, 144 U. S. 550; Knox- 
mlle Water Co. v. Knoxville, 200 U. S. 22. 

It has been further decided that a grant of power to fix its 
charges, provided they be not in excess of a specified rate in 
the charter of a corporation, does not prevent the State from 
afterward fixing lower rates than those established by the cor- 
poration. Georgia Railroad & Banking Co. v. Smith, 128 U. S. 
174. And that generally the reservation by the State of a 
power to amend or revoke the charter carries wdth it a power 
to regulate the charges that may be made. Peik v. Chicago, 
etc., Ry. Co., 94 U. S. 164. 

Applying the rules above stated to the construction of chapter 
422 of the Acts of 1906, it is apparent that the Commonwealth 
did not enter into any agreement that it would not further 
regulate the rates to be charged by the Boston Consolidated 
Gas Company. Such a contract is neither clearly expressed in 
nor fairly to be implied from the language of that chapter. 
That the State did not make a contract not to regulate further 
the charges and rates of the Gas Company is conclusively shown 
by section 9 of chapter 422 of the Acts of 1906, which provides 
that the rates charged by the company may be either raised or 
lowered upon certain applications, therein provided for, to the 
Board of Gas and Electric Light Commissioners. 

Without further discussion of this matter I have to say that 
it is my opinion that the provisions of chapter 422 of the Acts 
of 1906 did not and do not constitute a contract between the 
Commonwealth and the Boston Consolidated Gas Company; 
and that, subject to the rule above stated, the provisions of 



276 OPINIONS OF THE ATTORNEY-GENERAL. 

that chapter relating to the price of gas may lawfully be 
changed by the General Court without the assent of that 
company. 



1914 
June 22. 



Constitutional Law — Railroads — Guaranty of Bonds. 

It is within the constitutional authority of the Legislature to provide that the 
Commonwealth shall guarantee bonds of a railroad company. 

To the You have requested my opinion as to the constitutionality of 

Committee on j. . x . 

Third'^Readin<' House Bill No. 745, and your inquiry contains the statement 
that the bill appears to be one which provides that the Com- 
monwealth shall guarantee the bonds of a private enterprise. 
I assume, therefore, that the source of the doubt arising in 
your minds as to the constitutionality of the bill is indicated 
by this statement. 

No principle of law is better settled in this Commonwealth 
than that which forbids the use for a private purpose of money 
raised by taxation. 

But the preamble to this bill states that the purpose of the 
bill is to secure the building of the railroad described in 
chapter 556 of the Acts of 1907, as amended and extended 
by chapter 707 of the Acts of 1912, and to furnish new 
freight and passenger railroad lines for the State of Massa- 
chusetts and the city of Boston, to be operated in the interests 
of the people of said State and city, and to connect with exist- 
ing lines at Providence, Fall River and other points. The bill 
itself, when read in connection with the statutes referred to, 
bears out the recital of the preamble. 

Railroads are held to be built for the public use, whether the 
right to take land or the right to grant pecuniary aid to them 
is considered. The Legislature of this Commonwealth has 
granted aid to railroad corporations from the treasury of the 
Commonwealth. Prince v. Crocker, 166 Mass. 347. 

Repeated instances of this are found in our legislation. For 
example, aid was extended to the Western Railroad Corporation 
(St. 1836, c. 131), to the Troy & Greenfield Railroad Corpora- 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 277 

tion (St. 1854, c. 226), to the Williamsburg & North Adams 
(St. 1867, c. 321), and to the Lee & New Haven (St. 1868, c. 
313). The Legislature has also in a number of instances au- 
thorized cities and towns to furnish aid to railroad companies 
by subscribing to stock or otherwise. The constitutionality of 
such legislation has not been brought into direct controversy 
before the Supreme Judicial Court, but indirectlj^ has been 
recognized. Kittredge v. North Brookfield, 138 Mass. 286; Com- 
monicealth v. Williamstown, 156 Mass. 70. And elsewhere it 
has been established by such a weight of judicial authority that 
it must be regarded as settled. Prince v. Crocker, 166 Mass. 
347, 361. See, also, Olcott v. Supervisors, 16 Wall. 678; Rail- 
road Co. v. Otoe, 16 Wall. 667; Pine Grove Township v. Talcott, 
19 Wall. 666; Dillon on Municipal Corporations, 4th ed., §§ 
153, 158, 508. 

Thus the building of the subway in the city of Boston for the 
carriage of such passengers as paid the regular fare was held to 
be for a public use; and it was further held to be within the 
constitutional powder of the Legislature to order or sanction 
taxation for it. Prince v. Crocker, 166 Mass. 347, 361. 

It is my opinion that the railroad described in this bill, if 
built, must, like all other railroads, be regarded as constructed 
for public use; that the Legislature has the right to extend to 
it the direct financial aid of the Commonwealth, and that the 
proposed bill, if enacted, will be constitutional. 



State Forester — Sales of Wood and Lumber. 

Cnder St. 1908, c. 478, moneys received by the State Forester for the Common- 
wealth on account of wood and lumber sold by him must be paid to the 
State Treasurer, and cannot be credited to the Forester's department. 

You ask in your letter of June 22 if money turned into the xo the state 
5tate treasury by the State Forester, which had been received i9i4 

)y your department from sales of cordwood and lumber, may 

>e credited by the State Treasurer to the State Forester's 
ppropriation. You suggest that this in part would compensate 



278 OPINIONS OF THE ATTORNEY-GENERAL. 

for the expense of removing this material, which is now borne 
by the department and met by the annual appropriation. 

Chapter 478 of the Acts of 1908 provides for the purchase 
and acceptance of gifts of land for reforestation. Sections 4 
and 5 of that chapter are as follows: — 

Section 4. Land acquired under the provisions of this act shall be 
under the control and management of the state forester who may, subject 
to the approval of the governor and council, cut and sell trees, wood and 
other produce therefrom. 

Section 5. All moneys received by or payable to the commonwealth 
or any one acting on its behalf under the provisions of this act shall be 
paid iato the treasury of the commonwealth. 

The language of the statute warrants but one construction, 
namely, that all money received from sales of trees, wood and 
other produce must be accounted for and turned over to the 
State Treasurer. The only way by which these moneys could 
be credited to your department, and thereby added to your 
available funds, would be by an extra appropriation. 



Contracts — Public Works — Labor. 

The provisions of St. 1914, c. 474, regulating wages of employees on public works, 
do not apply to contracts made prior to the taking effect of the statute. 

To the State You have rcqucstcd my opinion upon the following ques- 

Labor and tioU '. 

Industries. 
1914 

June 25. Do the provisious of chapter 474 of the Acts of 1914 apply to contracts 

made before the fifth day of June, 1914, that bemg the date upon which 
that chapter went into effect? 

This chapter reads as follows: — 

Section 1. Section twenty-one of chapter five hundred and fourteen 
of the acts of the year nineteen hundred and nine is hereby amended by 
inserting after the word "effect", in the eighth line, the words: — The 
wages for a dav's work paid to mechanics employed in such construction 
of public works shall be not less than the customary and prevailing rate 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 279 

of wages for a day's work in the same trade or occupation in the locaHty, 
city or town where such public works are constructed, — so as to read as 
follows : — Section 21 . In the employment of mechanics and laborers in 
the construction of public vvorks by the commonwealth, or by a county, 
city or town, or by persons contracting therewith, preference shall be 
given to citizens of the commonwealth, and, if they cannot be obtained 
in sufficient numbers, then to citizens of the United States; and every 
contract for such works shall contain a provision to this effect. The 
wages for a day's work paid to mechanics employed in such construction, 
of public works shall be not less than the customarj'- and prevailing rate of 
wages for a day's work in the same trade or occupation in the locality, 
city or town where such public works are constructed. Any contractor 
who knowingly and wilfully violates the provisions of this section shall 
be punished by a fine of not more than one hundred dollars for each 
offence. 

Section 2. The board of labor and industries shall enforce the 
provisions of this act, and in case of any dispute that may arise upon 
public works as to the customary and prevailing rate of wages the board 
of labor and industries shall investigate the wages in the trade or occupa- 
tion in the locality, city or town where such public works are under con- 
struction and decide what rate of wages shall be paid upon such works. 

This statute relates to the emplo^'ment of mechanics and 
laborers in the construction of public works by the Common- 
wealth, and to the rate of wages to be paid by contractors 
doing such work. 

The contracts of a State with individuals are to be construed 
in the same manner and have the same binding effect upon the 
parties thereto as the contracts of private parties. 36 Cyc. 
880, par. G. 

A State has no more right than an individual to modify or 
rescind a contract entered into by it unless such right has been 
reserved. 36 Cyc. 880, par. H. 

In Boston Molasses Co. v. Commonwealth, 193 Mass. 389, 
Sheldon, J., says as follows: — 

The State, in all its contracts and dealings with individuals, must be 
adjudged and abide by the rules which govern in determining the rights 
of private citizens contracting and dealing with each other. There is 
not one law for the sovereign and another for the subject; but, when 
the sovereign engages in business and the conduct of business enterprises. 



280 OPINIONS OF THE ATTORNEY-GENERAL. 

and contracts with individuals, although an action may not lie against 
the sovereign for a breach of the contract, whenever the contract, in any 
form, comes before the courts, the rights and obligations of the con- 
tracting parties must be adjusted upon the same principles as if both 
contracting parties were private persons. Both stand upon equality 
before the law, and the sovereign is merged in the dealer, contractor and 
suitor. 

In an opinion by the Attorney-General, given June 28, 1911, 
to the Metropolitan Water and Sewerage Board, where a con- 
tract was made prior to the act of the Legislature limiting the 
employment of men to eight hours a day, it was held that the 
contractor had the right to employ men according to the terms of 
the contract, and that the terms thereof will not be changed by 
the passage of the act in question. The statute would be un- 
constitutional if construed to abrogate or interfere with the 
terms of this contract. 

There is nothing in chapter 474 of the Acts of 1914 indi- 
cating any intention that it should apply to contracts made 
before that chapter would take effect, and such a provision, 
if made, would undoubtedly constitute a violation of that pro- 
vision of the Federal Constitution which prohibits any State 
from enacting a law impairing the obligation of contracts. 

It is my opinion that this chapter does not apply to the 
class of contracts referred to in your inquiry. 



Contracts — Bids — Right of Rejection. 

Where a public commission, in advertising for bids on a proposed contract, re- 
serves the right to reject any and all bids, no liability attaches in case any 
of the lowest bids are rejected. 

To the State In your Communication of recent date, vou state in substance 

House Building ^ . . . ' " 

Commission, that iu advertising for bids for contracts for the State House 

1914 " 

June£6. extension you reserved the right to reject any and all bids, and 

you request my opinion upon the following question: "If the 
Board shall now^ reject any of the lowest bidders will such 
rejected bidders have any recourse at law?" 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 281 

This question received judicial consideration in the case of 
Colorado Paving Co. v. Murphy, 37 L. R. A. 630. In this case 
Murphy brought a bill in equity seeking to enjoin the Colorado 
Paving Company and the mayor and certain other officials of 
the city of Denver from entering into a contract for the paving 
of a certain street in Denver. The city authorities had adver- 
tised for bids for a contract for this work and had reserved the 
right to reject any and all bids. Murphy was the lowest bidder 
and his bid was rejected. The court said: — 

"Wherever an action is brought for a breach of duty imposed by 
statute, the party bringing it must show that he had an interest in the 
performance of the duty, and that the duty was imposed for his benefit. 
But where the duty was created or imposed for the benefit of another, 
and the advantage to be derived to the party prosecuting, by its per- 
formance, is merely incidental and no part of the design of the statute, 
no such right is created as forms the subject of an action." 

It is upon this principle that it is now settled by the great weight of 
authority that the lowest bidder cannot compel the issue of a writ of 
mandamus to force the officers of a municipality to enter into a contract 
with him. (Citing High, Extr. Legal Rem. § 92, and other authorities.) 
And the courts hold that he cannot maintam an action at law for 
damages for their refusal to enter into the contract. Talbot Paving Co. 
v. Detroit (IVIich.), 3 Det. L. N. 268; East River Gaslight Co. v. Donnelly, 
93 N. Y. 557. This principle is as fatal to a suit in equity as to an action 
at law. It goes not to defeat any particular cause of action, but to 
defeat the right to any relief. Nor is this an unjust or inequitable result. 
One who offers to contract to do work for a city which he knows has the 
right to reject his bid ought not to have the power to compel that city to 
niter into a contract with him simply because it decides to make a con- 
tract for the same work with his rival. He knowingly puts the labor and 
'xpense of preparing his bid at the hazard of the city's action. It is 
idmitted that, if the city rejects all bids, he has no rights, no equities; 
ind we fail to see how its acceptance of another's bid can give to the 
msuccessful bidder any greater right than he would have had if all bids 
lad been rejected. {Colorado Paving Co. v. Murphy, 37 L. R. A. 630, 635.) 

1 In a case involving the same principle the Supreme Court 
)f Missouri said : — 

In the case in hand the advertisement has the following caption: 
Proposals for the erection of the new high school building on Grand 
1. venue." But the opening fines of the oflScial statement, which foUows, 



282 OPINIONS OF THE ATTORNEY-GENERAL. 

show that the caption refers to the proposals to be received, and is not 
intended to describe the effect of the advertisement as a whole. If 
there was otherwise any doubt on this point, it is set at rest by the last 
sentence, viz., "The board reserves the right to reject any or all bids." 
That language demonstrates the nature of the advertisement as a mere 
invitation for offers for a contract. As such it did not lay the founda- 
tion of a completed contract. It was merely the opening of negotiations 
for a contract. . . . No claim is advanced in the petition looking to a 
recovery for fraud or deceit in making the proposals for bids. It is, 
indeed, asserted that the defendant rejected the plaintiffs' bid "without 
cause, arbitrarily and capriciously, through favoritism and bias." But, 
if the defendant had the absolute right to reject any and all bids, no cause 
of action would arise to plaintiffs because of the motive which led to the 
rejection of their bid. The right to reject the bids was unconditional. 
Defendant was entitled to exercise that right for any cause it might deem 
satisfactory, or even without any assignable cause. Whatever its rules 
or practice as to the acceptance of bids may have been, plaintiffs' rights 
cannot be justly held to be greater than those conferred by the pub- 
lished advertisement on which their bid was made. (Anderson v. Board 
of President and Directors of Public Schools, 26 L. R. A. 707, 712.) 

It is my opinion that under the circumstances described in 
your letter the rejection of any bid would not give the bidder 
whose offer was rejected any right of action against the Com- 
monwealth nor against the members of your Board, either in 
their official capacity or as individuals. 



Constitutional Law — Railroads — Regulation of Com- 
pensation OF Employees. 

It is not within the constitutional powers of the Legislature to compel railroads 
to give certain employees two days' rest in a month with full compensation. 

^°*^^ In response to your oral inquiry in reference to the bill now 

Governor. ^ * n ./ 

June^29 bcforc you providing for two days' rest in a month for certain 

employees with full compensation, I refer you to an opinion 
rendered March 25, I9I4, to the Committee on Railroads on a 
similar measure, House Bill No. 453. 

The leading case in this Commonwealth upon that principle 
that relates to freedom of contract is Commonioealth v. Perry, 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 283 

155 Mass. 117. A statute had been enacted which provided 
that no employer should impose a fine upon, or withhold the 
wages or any part of .the wages of, an employee engaged in 
weaving, for imperfections that may arise during the process 
of weaving. The court, speaking by Chief Justice Knowlton, 
say: — 

The act recognizes the fact that imperfections may arise in weaving 
cloth, and it is evident that a common cause of such imperfections may 
be the negligence or want of skill of the weaver. When an employer 
has contracted witb his employee for the exercise of skill and care in 
tending looms, it forbids the withholding of any part of the contract 
price for non-performance of the contract, and seeks to compel the pay- 
ment of the same price for work which in quality falls far short of the 
requirements of the contract as for that which is properly done. . . . 

... It might well be held that, if the Legislature should determine it 
to be for the best mterests of the people that a certain class of employees 
should not be permitted to subject themselves to an arbitrary imposition 
of a fine or penalty by their employer, it might pass a law to that effect. 
But when the attempt is to compel paynient under a contract of the 
price for good work when only inferior work is done, a different question 
is presented. 

There are certain fundamental rights of every citizen which are recog- 
nized in the organic law of all our free American States. A statute 
which violates any of these rights is unconstitutional and void, even 
though the enactment of it is not expressly forbidden. Article I. of the 
Declaration of Rights in the Constitution of Massachusetts enumerates 
among the natural, unalienable rights of men the right "of acquiring, 
possessing, and protecting property." Article I., § 10, of the Consti- 
tution of the United States provides, among other things, that no State 
shall pass any "law impairing the obligation of contracts." The right 
to acquire, possess and protect property includes the right to make 
reasonable contracts, which shall be under the protection of the law. 

... If the statute is held to permit a manufacturer to hire weavers, 
and agree to pay them a certain price per yard for weaving cloth with a 
proper skill and care, it renders the contract of no effect when it requires 
him, under a penalty, to pay the contract price if the employee does his 
work negligently and fails to perform his contract. For it is an essential 
element of such a contract that full payment is to be made only when 
the contract is performed. If it be held to forbid the making of such 
contracts, and to permit the hiring of weavers only upon terms that 
prompt payment shall be made of the price for good work, however badly 
their work may be done, and that the remedy of the employer for their 



284 OPINIONS OF THE ATTORNEY-GENERAL. 

derelictions shall be only by suits against them for damages, it is an inter- 
ference with the right to make reasonable and proper contracts in con- 
ducting a legitimate business, which the Constitution guarantees to 
every one when it declares that he has a "natural, essential, and unalien- 
able" right of "acquiring, possessing, and protecting property." {Com- 
monwealth V. Perry, 155 Mass. 117.) 

A statute attempting to fix the price and hours of labor as between 
certain private contractors and their employees could not in my judg- 
ment be sustained as a legitimate exercise of the police power contained 
in the Constitution. It would tend to promote the pecuniary welfare 
of one class of citizens at the expense of another class. (II. Op. Atty.- 
Gen. 267.) 

The case of Commonwealth v. Perry has been cited with ap- 
proval in our own Commonwealth and by the Supreme Court 
of Missouri in the case of State v. Loomis, 115 Mo. 307, and bj' 
the Supreme Court of Illinois in the case of Braceville Coal Co. 
V. The People of the State of Illinois, 147 111. 66. In the last- 
mentioned case it is said : — 

The privilege of contracting is both a liberty and a property right, 
and if A is denied the right to contract and acquire property in the 
manner which he has hitherto enjoyed under the law, and which B, C 
and D are still allowed by the law to enjoy, it is clear that he is deprived 
of both liberty and property to the extent that he is thus denied the 
right to contract. The man or the class forbidden the acquisition or 
enjoyment of property in the manner permitted the community at large 
would be deprived of liberty in particulars of primary importance to his 
or their pursuit of happiness. 

It is evident that if the Legislature may constitutionally 
enact a law that an employer must pay an employee in everj^ 
month for two days' labor that is not performed, it may also 
enact a statute providing that employees must work two days 
in a month without pay, the unconstitutionality of which would 
be very readily apparent to every thinking individual. Such an 
enactment as is proposed interferes both with the personal 
liberty of the citizen and with the right of freedom of contract. 
In my opinion such an act would also be obnoxious to that 
provision of the Fourteenth Amendment of the Constitution of 
the United States, that "no state shall deprive any person of 
life, liberty or property without due process of law." j 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 285 



Boston, Cape Cod & New York Canal Company — Deposit 
WITH State Treasurer. 

Under St. 1899, c. 448, the deposit of $200,000 vdth the State Treasurer as security 
for land damages cannot be applied for any other purpose or taken by virtue 
of an execution. 

You have requested mv opinion as to whether the moneys To the 

^ * ^ • Treasurer and 

deposited with the Treasurer and Receiver-General of the Qgn^r^f' 
Commonwealth by the Boston, Cape Cod & New York Canal j^ne 30. 
Company, under the provisions of chapter 448 of the Acts of 
1899, are a proper fund out of which to pay an execution issued 
by the Superior Court in and for the county of Barnstable in 
favor of Valina T. Bassett, judgment creditor, and against the 
Boston, Cape Cod & New York Canal Company, judgment 
debtor. 

Sections 23, 24 and 25 of the chapter referred to provide as 
follows : — 

Section 23. This act shall be null and void unless said canal com- 
pany shall, within four months from the passage of this act, and before 
the filing of the plan of the proposed location as provided in section four, 
deposit with the treasurer of the commonwealth the sum of two hundred 
thousand dollars in cash or in United States government bonds, as se- 
curity for all damages for the taking of land by said company; which 
money or bonds shall be subject to attachment or levy upon any legal 
process issued in behalf of any person against said company for the re- 
covery of damages for taking such land. . . . 

Section 24. All persons whose lands shall be taken by condemna- 
tion for the location of said canal as filed by said canal company under 
the provisions of section four of this act shall, within six months after the 
filing of such location in the registry of deeds for the county of Barn- 
stable, file with the county commissioners of the county of Barnstable a 
written statement, setting forth substantially the quantity of land so 
taken, and the amount of damages so claimed by them, respectively, 
for the taking thereof, and the county commissioners shall thereupon, 
after giving to all parties interested such notice as they shall deem suf- 
ficient, determine and award the amount of damages to which such 
persons are entitled. 

Section 25. Any party dissatisfied with the award of the county 
commissioners may, at any time within one year after the date of such 
award, apply by petition to the superior court of the county of Barn- 



280 OPINIONS OF THE ATTORNEY-GENERAL. 

stable for a jury to assess the damages, and like proceedings shall be 
had therein as in proceedings for damages for laying out railroads. The 
treasurer of the commonwealth is hereby empowered and directed, upon 
the filing with him of a certified copy of the final decree as appears of 
record in any such proceeding, to pay to the parties appearing by such 
decree to be entitled thereto, or their legal representatives, the sum of 
monej^ set forth in said decree. 

The funds deposited with the Treasurer and Receiver-General 
by the canal company are subject to attachment or levy upon 
legal process for one purpose only; that is, to satisfy claims for 
land damages. The funds above specified were deposited with 
the Treasurer and Receiver-General for this single purpose. 

By section 24 above quoted all persons whose lands were 
taken or condemned for the location of the canal were required, 
within six months after the filing in the registry of deeds for the 
county of Barnstable of the proper instruments showing the lo- 
cation of the canal, to file with the county commissioners of 
that county a written statement setting forth substantially the 
quantity of land taken and the amount of damages claimed by 
such persons, respectively. Upon the filing of such statement 
the county commissioners were required to make an award of 
the amount of damages to which such persons were entitled. 
After this any party dissatisfied with the award of the commis- 
sioners might within one year bring his petition to the Superior 
Court of Barnstable County to have his damages assessed by 
a jury; and the Treasurer and Receiver-General is empowered 
and directed, upon the filing with him of a certified copy of the 
final decree as appears of record in any such proceeding, to 
pay to the parties appearing by such decree to be entitled 
thereto, or to their legal representatives, the sum of money set 
forth in said decree. 

The copy of the execution submitted does not disclose 
whether the cause of action of the judgment creditor therein 
named was the taking of land by the defendant company or 
something else; but the funds in the hands of the Treasurer 
and Receiver-General can be used only to pay land damages. 
No certificate accompanies this execution. Before the Treas- 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 287 

iirer and Receiver-General pays any claim against the canal 
company there should be filed with him a certified copy of the 
final decree in the proceeding in which payment is claimed. 
The execution presented is not such a certified copy as the 
statute requires, and does not show compliance with the various 
steps required by the statute. 

It is my opinion that as the matter now stands the Treas- 
urer and Receiver-General should not pay this execution and 
that this claim cannot properly be paid out of the fund above 
mentioned until compliance with the terms of the statute is 
shown. 



( "iviL War Veteran — Gratuities — Reenlistment as 
Substitute. 

Under St. 1912, c. 702, as amended by St. 1913, c. 443, a Massachusetts veteran 
who .served as a volunteer in the civil war and was honorably discharged is 
not debarred from receiving a gratuity from the Commonwealth by reason 
of subsequent service as a substitute. 

You state that vou have on file a claim made bv a veteran To the Com- 

"^ . . . * mission on 

who served as a volunteer in the Civil War from July, 1862, to Gratuities. 
September, 1863, and that by reason of this service he would J^iyjj 
be entitled to the gratuity provided by chapter 702 of the Acts 
of 1912, but that in August, 1864, he reenlisted as a substitute, 
from which service he was discharged in August, 1867; and 
you ask my opinion on the following question: "Does the fact 
of his second service as a substitute debar the veteran from 
any benefit under this act?" 

The first section of the chapter above referred to contains a 
\ery clear and emphatic declaration of the intention and pur- 
pose of the Legislature in its enactment. That section reads 
as follows : — 

For the purpose of promoting the spirit of loyalty and patriotism, and 
in recognition of the sacrifice made both for the commonwealth and for 
the United States by those veteran soldiers and sailors who volunteered 
"heir services in the civil war, and for the purpose of promoting the 
3ublic welfare, by giving visible evidence to this generation and future 



288 OPINIONS OF THE ATTORNEY-GENERAL. 

generations that, if danger should again threaten the nation and the call 
should again come for men, Massachusetts will not forget the great 
service of those who volunteer, a gratuity of one hundred and twentj^- 
five dollars to each veteran is hereby authorized to be paid from the 
treasury of the commonwealth under the conditions hereinafter set 
forth. 

Section 2 of said act, as amended by chapter 443 of the Acts 
of 1913, provides as follows: — 

The gratuity herein provided for shall be paid to every person, or his 
legal representative, not being a conscript or a substitute, 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, or who served in the army 
or navy of the United States during the civil war and was an actual bona 
fide resident of the commonwealth at the time of his enlistment, or who 
served in a military organization from or raised by the commonwealth, 
and was honorably discharged from such service, and is living at the 
time of the passage of this act; 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 favor- 
able 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. 

I assume that the applicant was at the time of his enlist- 
ment a ho7ia fide resident of the Commonwealth; that he was 
honorably discharged, and that there is no reason why he 
should not receive the gratuity provided by this act except the 
fact that after serving his country as a volunteer and after 
being honorably discharged from the service, not having 
received a bounty from the Commonwealth or from any city 
or town therein, he voluntarily reentered the country's service 
as a substitute. 

The statement of the reasons suggested for rejecting the claim 
of this applicant indicates quite clearly what the answer to your 
question ought to be. Here is a man who did not w-ait for any 
financial consideration but who offered his services freely to the 
defence of the Union, whose only fault is, that, having earned 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 

an honorable discharge, he was wilHng to do still further service 
for his country, and that on entering the service the second 
time he took the place of some one who would at best have 
been an unwilling soldier. To reject this claim for such a 
reason would, in my opinion, be entirely contrary to the plain 
provisions of the statute, and in this and all similar cases would 
defeat its spirit and purpose. The statute bars those whose 
only service was as conscripts or substitutes, not those who 
after honorable service as volunteers may have re-enlisted as 
substitutes. 

It is my opinion that the claim referred to in your question 
and all other like claims should be allowed. 



289 



Constitutional Law — Salem Fire — Authority of Legis- 
lature TO GRANT Relief. 

[t is within the cor^stitutional authority of the Legislature to grant such relief to 
sufferers from a public disaster as may be deemed necessary for the pro- 
tection of the health and safety of the people. 

In response to your oral inquiry whether the Legislature has To the 

luthority under the Constitution to appropriate money to be j^^^^g 

Dlaced in the hands of a commission and loaned to sufferers by 

:he Salem fire, to aid them in rebuilding their homes and places 

)f business, I have to say that the subject-matter covered by 

>'our inquiry was very carefully and fully considered by the 

supreme Judicial Court in Loivell v. Boston, 111 Mass. 454, a 

;ase that grew out of legislation for the relief of sufferers from 

he great Boston fire of 1872. The act in question, St. 1872, 

;. 364, provided for the issue by the city of Boston of bonds to 

m amount not exceeding $20,000,000, and for the appointment 

•f a commission authorized to loan the proceeds of the bonds 

issued, in sums such as they should determine, to the 

wners of land, the buildings upon which were burned by the 

ire in Boston on the ninth and tenth days of November, 1872. 

n a discussion which seems to cover every point raised by your 

iquiry the court said: — 



290 OPINIONS OF THE ATTORNEY-GENERAL. 

It is a question, not of municipal authority, but of legislative power. 
The point of difficulty is not as to the distribution of the burden by 
allowing it to be imposed upon a limited district within the State, but 
as to the right of the Legislature to impose or authorize any tax for the 
object contemplated by this statute. 

The power to levy taxes is founded on the right, duty and responsi- 
bility to maintain and administer all the governmental functions of the 
State, and to provide for the public welfare. To justify any exercise 
of the power requires that the expenditure which it is intended to meet 
shall be for some public service, or some object which concerns the 
public welfare. The promotion of the interests of individuals, either in 
respect of property or business, although it may result incidentally in 
the advancement of the public welfare, is, in its essential character, a 
private and not a public object. However certain and great the result- 
ing good to the general public, it does not, by reason of its comparative 
importance, cease to be incidental. The incidental advantage to the 
public, or to the State, which results from the promotion of private 
interests, and the prosperity of private enterprises or business, does not 
justify their aid by the use of public money raised by taxation, or for 
which taxation may become necessary. It is the essential character of 
the direct object of the expenditure which must determine its validity, 
as justifying a tax, and not the magnitude of the interests to be affected, 
nor the degree to which the general advantage of the community, and 
thus the public welfare, may be ultimately benefited by their pro- 
motion. 

The ultimate end and object of the expenditure, as indicated by 
the provisions of the statute itself, is "to insure the speedy rebuilding 
on said land." 

The general result may indeed be thus stated collectively, as a single 
object of attainment; but the fund raised is intended to be appro- 
priated distributively, by separate loans to numerous individuals, each 
one of which will be independent of any relation to the others, or to any 
general purpose, except that of aiding individual enterprise in matters 
of private business. The property thus created will remain exclusively 
private- property, to be devoted to private uses at the discretion of the 
owners of the land; with no restriction as to the character of the build- 
ings to be erected, or the uses to which they shall be devoted; and with 
no obhgation to render any se^^^ce or duty to the Commonwealth, or to 
the city, — except to repay the loan, — or to the community at large or 
any part of it. If it be assumed that the private interests of the owners 
will lead them to re-establish warehouses, shops, manufactories, and 
stores; and that the trade and business of the place will be enlarged or 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 291 

re\'ived by means of the facilities thus provided; still, these are con- 
siderations of private interest, and, if expressly declared to be the aim 
and purpose of the act, they would not constitute a public object, in a 
legal sense. 

As a judicial question the case is not changed by the magnitude of 
the calamity which has created the emergency; nor by the greatness of 
the emergency, or the extent and importance of the interests to be pro- 
moted. These are considerations affecting only the propriety and 
expediency of the expenditure as a legislative question. If the expendi- 
ture is, in its nature, such as will justify taxation under any state of 
circumstances, it belongs to the Legislature exclusively to determine 
whether it shall be authorized in the particular case; and however slight 
the emergency, or Umited or unimportant the interests to be promoted 
thereby, the court has no authority to revise the legislative action. 

On the other hand, if its nature is such as not to justify taxation in 
any and aU cases in which the Legislature might see fit to give authority 
therefor, no stress of circumstances affecting the expediencj^ importance 
or general desirableness of the measure, and no concurrence of legislative 
and municipal action, or preponderance of popular favor in any particular 
case, will supply the element necessary to bring it within the scope of 
legislative power. 

The expenditure authorized by this statute being for private and not 
for pubUc objects, in a legal sense, it exceeds the constitutional power of 
the Legislature; and the city cannot lawfully issue the bonds for the 
purposes of the act. (Lowell v. Boston, 111 Mass. 454, 460, 472.) 

This decision has never been overruled or in any degree 
imited or at all criticized by any later decision of the Supreme 
Judicial Court. It has been many times cited with approval, 
ind I quote from an Opinion of the Justices, 204 Mass. 607, 611, 
I reference to this case, where after quoting a portion of the 
)pinion above set forth and saying that the statement of the 
aw in the case of Lowell v. Boston is clear and accurate it is 
aid : — 

It has governed all later decisions upon kindred questions in this 
'ommonwealth. Opinion of the Justices, 155 Mass. 598. Mead v. 
[don, 139 Mass. 341. It is the law of the Supreme Court of the United 
tates as laid down in an able and exhaustive opinion by Mr. Justice 
liller, in Loan Association v. Topeka, 20 Wall. 655, in which it was held 
iiat a statute authorizing a town to issue its bonds in aid of a manu- 
icturing enterprise was invalid. It has been followed by that court in 
iter cases. Parkersburg v. Brown, 106 U. S. 487. Cole v. LaGrange, 



292 OPINIONS OF THE ATTORNEY-GENERAL. 

113 U. S. 1. Missouri Pacific Railway v. Nebraska, 164 U. S. 403. It 
has been applied in different forms in a variety of cases in courts all over 
the United States. Opinion of the Justices, 58 Maine, 590. Allen v. 
Jay, 60 Maine, 124. Markley v. Mineral City, 58 Ohio St. 430. State v. 
Osawkee Township, 14 Kans. 418. Central Branch Union Pacific Rail- 
road v. Smith, 23 Kans. 745. Coates v. Campbell, 37 Minn. 498. Deering 
& Co. v. Peterson, 75 Minn. 118. Minnesota Sugar Co. v. Iverson, 91 
Minn. 30. Eufaula v. McNab, 67 Ala. 588. Manning v. Devil's Lake, 
13 No. Dak. 47. Michigan Sugar Co. v. Auditor General, 124 Mich. 674. 
Beat V. Mississippi County, 107 Mo. 464. Feldman & Co. v. City Council 
of Charleston, 23 S. C. 57. Sutherland-Innes Co. v. Evart, 30 C. C. A. 305. 

Without further discussion of this question I may say that 
the decisions of our Supreme Judicial Court above quoted un- 
questionably express the law covering your inquiry as it stands 
to-day, and are conclusive as to the power of the Legislature to 
authorize the loan of any part of the public funds of the Com- 
monwealth for individual or private use, and preclude the 
possibility of such action. These considerations, however, 
relate to the matter of rebuilding the city. 

But other and more important considerations arise as to the 
condition of things now existing at Salem. A great calamity 
has befallen, one which, while it affects more keenly the resi- 
dents of the stricken city and those who without warning have 
been thrown out of employment and stripped of their worldly 
possessions, is still a disaster in which every citizen of the 
Commonwealth shares. Such a condition as now exists in 
Salem presents a public emergency, one that justifies and de- 
mands the exercise of the constitutional power of the govern- 
ment in making proper provision for the health and safety of 
the people. 

When a great public disaster has occurred leaving thousands 
of people without food, shelter or employment, it is unthinkable 
that the hands of the government of the Commonwealth are so 
tied as to render it utterly supine and powerless to furnish aid, 
and that the sufferers must of necessity be left to the hap- 
hazard of private charity. The local authorities are necessarily 
practically powerless in the presence of such great destruction 
and suffering. The condition of things so suddenly precipitated, 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 293 

the claims of humanity, and the good of the Commonwealth 
call for immediate and extraordinary relief. It is my opinion 
that the Legislature has power under the Constitution to appro- 
priate money from the funds of the Commonwealth to be used 
under such direction and supervision as it may deem proper 
for providing proper food, clothing and shelter for the sufferers 
from the Salem fire during such period of time as may be 
deemed necessary, as a measure for the protection of the health 
and safety of the people, and for the promotion of the general 
welfare. 



Labor — Eight-hour Day — Police Drivers. 

Civilians employed as hostlers or drivers in the Boston police department are 
within the provisions of St. 1911, c. 494, § 1, restricting employment of 
certain persons to eight hours in a calendar day, but police officers detailed 
to perform the work of drivers or hostlers are not so restricted. 

You have requested mv opinion upon the following ques- To the state 

"^ <=> i Board of 

tlOnS : Labor and 

Industries. 

First, are civilians employed as hostlers or drivers for the police de- July 8. 
partment of the city of Boston within the provisions of chapter 494 of 
the Acts of 1911? 

Second, are poHce officers who are detailed to perform the work of 
drivers and hostlers of the poUce department of the city of Boston entitled 
to the benefit of the eight-hour law? 

Section 1 of chapter 494 of the Acts of 1911 provides as 
follows : — 

The service of all laborers, workmen and mechanics, now or hereafter 
employed by the commonwealth or by any county therein or 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, or by any contractor or sub-contractor for or upon 
any public 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, and it shall be unlawful for any officer of the common- 
wealth or of any county therein, or of any such city or town, or for any 
such contractor or sub-contractor or other person whose duty it shall be 



294 OPINIONS OF THE ATTORNEY-GENERAL. 

to emploj', direct or control the service of such laborers, workmen or 
mechanics to require or permit any such laborer, workman or mechanic 
to work more than eight hours in any one calendar day, except in cases 
of extraordinary emergency. Danger to property, Ufe, public safety or 
public health only shall be considered cases of extraordinary emergency 
within the meaning of this section. In cases where a Saturday half 
hohday 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 to obstruct or 
prevent the obtaining of emplojnment or to refrain from employing in 
the future, shall each be considered to be "requiring" within the meaning 
of this section. Engineers shall be regarded as mechanics within the 
meaning of this act. 

Your letter does not state, and I am not informed, whether 
the city of Boston has accepted the provisions of the eight- 
hour law, but for the purposes of this opinion I assume that 
it has done so. 

In answer to the first question I have to say that it is my 
opinion that civilians employed as hostlers or drivers for the 
police department of the city of Boston are wdthin the pro- 
visions of section 1 of chapter 494 of the Acts of 1911. 

In answer to your second question I have to say that it is 
my opinion that regular officers of the police department de- 
tailed to perform the duties of hostlers and drivers are not 
within the provisions of the eight-hour law. They have a 
civil service rating as patrolmen, and draw salaries as police 
officers, and not as hostlers or drivers. 



Clerks of Courts — Assistant Clerks — Clerks Pro 

Tempore. 

Unless an assistant clerk of court is appointed clerk pro tempore in the absence of 
the clerk, he is not entitled to any increase in his regular salarj'. 

Controller of ^o\i havc pcquested my opinion upon the following ques- 

County tmn • 

Accounts. i-iuii . 

1914 

Juiy^. When an assistant clerk of a poUce, district or municipal court is 

appointed clerk pro tempore is he entitled to the salary of the clerk wliile 
holding such position? 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 

R. L., c. 160, §§ 11, 12 and 70, provide: — 

Section 11. The clerk of a police, district or municipal court may, 
subject to the approval of the justice, from tune to time appoint one or 
more assistant clerks, who shall be removable at his pleasure or at the 
pleasure of the court, for whose official acts the clerk shall be responsible 
and who shall be paid by him unless they receive salaries which may be 
allowed and fixed by law. 

Section 12. In case of the absence, death or removal of a clerk of a 
police, district or municipal court, the court may appomt a clerk pro 
tempore, who shall act until the clerk resumes his duties or until the 
vacancy is fiUed. 

Section 70. Clerks pro tempore of poUce, district and municipal 
courts shall receive from the county as compensation for each day's 
service an amount equal to the rate by the day of the salary of the clerk; 
but compensation so paid to a clerk pro tempore for service, in excess of 
thirty daj^s in any one calendar year, shall be deducted by the county 
treasurer from the salary of the clerk. 

St. 1906, c. 256, provides: — 

Section 1. In case of the absence, death or removal of an assistant 
clerk of a pohce, municipal or district court, other tlian the municipal 
court of the city of Boston, whose office is estabhshed by law, the clerk, 
subject to the approval of the justice, may appoint an assistant clerk 
pro tempore, who shall act until the assistant clerk resumes his duties 
or until the vacancy is filled, and who shaU receive from the county as 
compensation for each day's service an amount equal to the rate by 
day of the salary of the assistant clerk; but compensation so paid to an 
assistant clerk pro tempore for service, in excess of twenty days in any 
Due calendar year, shall be deducted by the county treasurer from the 
salary of the assistant clerk. 

There is nothing in the law which prohibits the appointment 
of an assistant clerk of a court to the office of clerk 2)^0 tempore, 
but it is my opinion that the two positions are incompatible and 
2annot be held by a person at one and the same time. When 
in assistant clerk accepts an appointment as clerk pro tempore, 
le vacates the position of assistant clerk and is entitled to 
'eceive from the county as compensation for each day's service 
m amount equal to the rate by the day of the salary of the 
:ierk. Upon the expiration of his term as clerk j^ro tempore he 
s, of course, again eligible to appointment as assistant clerk. 



295 



296 OPINIONS OF THE ATTORNEY-GENERAL. 



Registers of Deeds — Salaries. 

Salaries of registers of deeds are to be readjusted each year in accordance with the 
classifications provided in St. 1904, c. 452. 

Controller of You ask my opinion as to the proper method of determining 

Accounts. the salary of the register of deeds of Frankhn County, in view 

1914 

.July 24. of the fact that the receipts of said registry in 1913 ex- 

ceeded $3,000. 

Chapter 452 of the Acts of 1904 estabHshed the salaries of 
registers and assistant registers throughout the Commonwealth. 
Certain classifications were made: Class A, where the yearly 
receipts for the five years preceding the j^ear 1903 amounted 
to $3,000 or more, and where the register was given an initial 
salary of $1,600 plus a sum equal to 15 per cent, of said re- 
ceipts; Class B, where the receipts were between $1,500 and 
$3,000, with an initial salary of $900 plus 40 per' cent.; Class 
C, where the receipts were less than $1,500 per year, with a 
salary equal to the receipts and not less than $600. Several 
registries were mentioned by name and the salaries stated. 
Section 2 of that chapter reads as follows : — 

The salaries of registers of deeds and assistant registers of deeds here- 
inbefore specified shall be readjusted in January, nineteen hundred 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 
accordance with the classification set forth in section one. 

This was amended by chapter 682 of the Acts of 1913, as 
follows : — 

The salaries of registers of deeds and assistant registers of deeds here- 
inbefore specified shall be readjusted in January, nineteen hundred and 
fourteen, and in the month of January of each year thereafter, upon the 
basis of the receipts of the respective registries for the year preceding, 
every such readjustment to be m accordance with the classification set 
forth in section one. 

The plain purport of the recent enactment was to readjust 
the salaries each year, the readjustment to be in accordance 



I 



THOMAS J. BOYNTON, ATTORNEY-GENERAL 297 

with the classification set forth in the prior act, and by classi- 
fication is meant that all registries whose receipts are more 
than $3,000 in the year shall be in Class A; those whose re- 
ceipts are between $1,500 and $3,000 shall be in Class B, etc. 
It was not intended that a registry named as a Class B registry 
in the 1904 act should remain so if it had attained the rank of 
a Class A registry. 

As the Franklin Count}' Registry is now in Class A, the 
salary of the register must be determined by the Class A rate, 
namely, $1,600 plus 15 per cent, of the receipts. 



Bank Com- 
missioner. 
1914 



Savings Banks — Boards of Investment — Mortgages. 

The position held by a member of a board of investment of a savings bank 
becomes vacant in sixty days after such member holds, either personally 
or as trustee, property mortgaged to said bank. 

In a recent communication you state that you have received '^°^^} 
a letter from one of the savings banks in the Commonwealth 
which reads as follows : — Juiy27. 

For several years we have had a mortgage on a piece of property which 
has now been sold to an association known as The Twenty-five Associates. 
One of the trustees of The Twenty-five Associates, in whom the title of 
the property is vested and by whom the papers assuming the mortgage 
ire signed, is a member of our board of investment. Would there be 
my objection to our continuing this mortgage under the circumstances? 

You ask for an opinion upon the question raised by the 
bank, and further inquire whether if this loan is taken by the 
3ank it would be a violation of section 44 of chapter 590 of the 
Acts of 1908. 

I The bank does not state whether the mortgage in question 
s now due or still has some time to run. If the mortgage is 
lot due it cannot be foreclosed until maturity. It might be 
ssigned; but if held by the bank the position of the member 
■f the board of investment who has become a trustee of The 



298 OPINIONS OF THE ATTORNEY-GENERAL. 

Twenty-five Associates will become vacant in sixty days from 
the time when he became such trustee, under the provisions of 
the section above referred to. With this member off the board 
of investment, only the usual business question will be present, 
either as to holding the mortgage or renewing it. If, however, 
the mortgage has matured and the question under consideration 
is really as to its renewal, I am of the opinion that this cannot 
be done legally while any member of the board of investment 
holds title to the mortgaged property, whether in his own right 
or as a trustee, and that this is so whether he holds as a sole 
trustee or as a member of a body of trustees. The making of 
a loan by a savings bank to a trustee or to a body of trustees, 
one of whom is a member of the board of investment of the 
bank, would, in my opinion, constitute a violation of the pro- 
visions of section 44 of chapter 590 of the Acts of 1908. 



State Board of Health — Civil Service. 

The powers and duties of the State Board of Health are retained until the Depart- 
ment of Health is organized. 

The secretary of the State Board of Health ceases to hold office upon the abolition 
of the Board. 

Employees of the State Board of Health holding offices not created by statute 
hold office until removed or until their successors are appointed. 

^?}^%> A You have requested my opinion upon the following ques- 

"fjHeaith. tions: — 

' First. — Will its previously existing powers and duties reside in the 

State Board of Health until the new Department of Health is organized? 
Second. — Will the secretary of the State Board of Health continue 
to hold office until the organization of the new Health Department? 

Third. ■ — In case the office of secretary to the State Board of Health 
ceases to exist on Aug. 6, 1914, would the official known as "assistant 
to the secretary" (not under Civil Service Rules) share in the status 
of the secretary or would he continue to hold office as an employee "under 
section 7 of chapter 792, Acts of 1914"? 

The State Board of Health was appointed and holds office 
under the provisions of section 1 of chapter 75 of the Revised 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 299 

Laws. This section is expressly repealed by section 8 of chapter 
792 of the Acts of 1914. 

This act contains no provision as to the time when it shall 
take effect, and your first question is really whether section 8 
takes effect on the passage of the bill or falls within the pro- 
visions of section 1 of chapter 8 of the Revised Laws, which 
reads as follows: — 

A statute shaU take effect throughout the commonwealth, unless 
othen\ase expressly provided therein, on the thirtieth day next after the 
day on which it is approved by the governor, or is otherwise passed and 
approved, or has the force of a law, conformably to the constitution. 

The rule established by the section last quoted is a statutory 
one, and may be repealed or altered by statute, and it may be 
argued that in case of a repealing statute the later enactment 
takes effect immediately and repeals by implication the pro- 
visions of section 1 of chapter 8 of the Revised LaW'S, above 
quoted, in so far as the particular later enactment is concerned; 
but it should be noted that repeals by implication are not 
'avored. 

It is presumed that the Legislature does not intend to make 
mnecessary changes in the pre-existing body of law. The 
construction of a statute will, therefore, be such as to avoid 
my change in the prior laws beyond what is necessary to effect 
he specific purpose of the act in question. Manuel v. Manuel, 
3 Ohio St. 450; Syhes v. St. Louis & S. F. R.R. Co., 127 Mo. 
^pp. 326; State v. Hooker, 22 Okla. 712. 

It is in the last degree improbable that the Legislature 
rould depart from the general system of law without ex- 
pressing its intention wuth irresistible clearness. Maxwell on 
nterpretation of Statutes, 2d ed. 96. 
It is my opinion, therefore, that the repeal of sections 1, 2 and 
of chapter 75 of the Revised Laws does not take effect until 
le thirtieth day next after the day on which chapter 792 of 
16 Acts of 1914 was approved. 

It is also my opinion that when the new laW' goes into effect, 
lid the statute under which the State Board of Health now 



300 OPINIONS OF THE ATTORNEY-GENERAL. 

exists is abolished, the official powers and duties of the Board 
come to an end and expire with the statute under which it was 
appointed. 

In response to your second question I have to say that the 
secretary of the Board holds his office by virtue of the pro- 
visions of section 3 of chapter 75 of the Revised Laws. This 
section provides for the election of a secretary "who will be 
the executive officer and shall hold office during the pleasure of 
the board." This section is repealed by section 8 of chapter 
792 of the Acts of 1914, and while this chapter provides for the 
retention of the employees of the State Board of Health it 
makes no provision for the retention of any member of the 
Board nor of its officers. The secretary being the executive 
officer of the Board, it is my opinion that when chapter 792 of 
the Acts of 1914 takes effect, and the State Board of Health 
ceases to exist, he will cease to hold office. 

Referring to your third inquiry, which relates to the position 
of assistant secretary of your Board, it appears that this is not 
an office created by sections 1, 2 and 3, or either or any of 
them, and that the assistant secretary is an employee of your 
Board and is within the provisions contained in section 7 of 
chapter 792 of the Acts of 1914, that all present employees shall 
be continued in office until their successors are appointed and 
qualified or until removed by the commissioner. 



Labor — Public Works — Citizens. 

Under St. 1914, c. 600, where a city has a list of United States citizens eligible 
for employment in the street department, it is the duty of the city to dis- 
charge noncitizen employees, although their employment commenced prior 
to the enactment of the statute. 

Ip^I^I . You state that citizens of Newton complain that there are 

Civil service ^ 

^"^H^*'""' employed in the street department of that city a number of 

Augustus. persons who are not citizens of the United States and insist that 

under the provisions of section 4 of chapter 600 of the Acts of 

1914 the commission take steps to enforce the dismissal of these 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 301 

noncitizens. You further state that it appears upon investiga- 
tion that in most of the cases the noncitizen employees referred 
to were appointed long prior to the enactment of chapter 600 
of the Acts of 1914, and you ask my opinion as to whether your 
commission should insist upon the discharge of these non- 
citizens who were appointed prior to the passage of this act. 
The statute referred to provides as follows : — 

Section 1. In all work of any branch of the service of the common- 
wealth, or of any city or town therein, citizens of the commonwealth 
shall be given preference. 

Section 2. The civil service commission shall not place upon its lists 
any person not a citizen of the United States. 

Section 3. If an appointing officer, because of the non-existence of a 
list of eligible appointees, appoints under provisional authority from the 
civil service commission a person not a citizen of the United States, he 
shall discharge the person so appointed and appoint from the eligible 
list whenever the civil service commission establishes a list of the proper 
class. 

Section 4. Whenever the attention of the civil service commission 
shall be called by complaint on the part of any citizen of the common- 
wealth to the employment of a non-citizen when there is a list of eligibles 
existing, the commission shall take steps to enforce the dismissal of such 
non-citizens and the appointment in his place from the suitable eligible 
list. 

Section 5. Whenever it shall appear that any appointing officer has 
had due notice of unlawful employment of a non-citizen and that the 
said appointing officer has continued such employment for ten days after 
mch notice, he shall be subject to a fine of not less than ten nor more than 
Dne hundred dollars for each offence. 

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

This statute seems to have been enacted with a double 
purpose. Sections 1, 2 and 3 relate to appointments; sections 
1 and 5, to employment. I assume that the employees to whom 
,'ou refer are laborers. The act is not, in my opinion, retro- 
ictive so as to affect the legality of appointments made prior 
o its enactment, but section 4 relates to continuous employ- 
nent after its passage. For a man to be registered on the civil 
ervice list by a city and designated or appointed as a laborer 
5 one thing; continuous employment is quite another. This 



302 



OPINIONS OF THE ATTORNEY-GENERAL. 



section does not relate to things past, but provides that when- 
ever after its enactment the attention of the Civil Service 
Commission shall be called by complaint on the part of any 
citizen of the Commonwealth to the employment of a non- 
citizen when there is a list of eligibles existing, action shall be 
taken to enforce the dismissal of such noncitizen. 

It is my opinion that in the case stated, if the city of Newton 
has a list of eligibles made up of citizens as required by the 
provisions of this act, it is the duty of your Board to insist 
upon the discharge of the noncitizens whose employment is 
complained of. 



To the 
Controller of 
County- 
Accounts. 

1914 
August 4. 



County Commissioners — Expenses — Controller 
County Accounts. 



of 



County commissioners may be allowed as reimbursement for expenses, under 
St. 1911, c. 162, only such sums as are expended in the performance of official 
duty, whether within or without the Commonwealth, if such expenses are 
reasonable and proper in amount. 

You have requested my opinion upon the following ques- 
tion: — 

May expenses of county commissioners incurred outside the limits 
of the Commonwealth be allowed by the controller of county accounts? 



The statute governing this matter (section 1 of chapter 162 
of the Acts of 1911) provides as follows: — 

An itemized statement of the actual and proper cost to the commis- 
sioners for transportation and other necessary expenses incurred in the 
performance of their official duties shall on the first day of each month 
be certified by them to the controller of county accounts who shall audit 
and if correct certify the same to the county treasurer who shall reimburse 
the commissioners for such expenses from the county treasury. 



The question does not appear to be as to the place where the 
expense is incurred, but whether the item charged represents 
the proper cost or expense to the commissioners of transporta- 
tion or other necessary expenses incurred in the performance of 
their official duties. The test is not whether the duty is to be 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 

discharged or performed within this Commonwealth or outside 
of it, but whether the expense charged was incurred in the per- 
formance of official duty and whether it is reasonable and 
proper in amount. 

You enclose correspondence containing an inquiry whether 
the expenses of county commissioners in attending the Congress 
of the American Prison Association should be allowed. Admit- 
ting that the commissioners by attending the congress would 
gain much useful and important information, it is still my 
opinion that attending the Congress of the American Prison 
Association could not be regarded as official business, and 
therefore that expenses incurred in attending that or other 
similar gatherings cannot properly be allowed except in cases 
where a special appropriation has been made. The rule which 
you state you have hitherto followed seems to me to be correct. 



Labor — Materials and Supplies — Eight-hour Day. 

Wood finish, doors, casings, etc., purchased in the open market under a contract 
to which the Commonwealth is a party, and which enter into the construc- 
tion of a building, are materials and supplies, and St. 1911, c. 494, § 2, pro- 
viding an eight-hour day for employees on State work, does not apply. 

You have requested my opinion on the following question : — To the state 

Labor and 

Are wood finish, doors, casings and other wood-trim material or sup- ^"'^2914"®^" 
)lies within the meaning of the provisions of section 2 of chapter 494 of A ugust 1 2. 
he Acts of 1911? 

That section reads as follows: — 

Every contract, excluding contracts for the purchase of material or 
applies, to which the commonwealth or any county therein or any city 
r town which has accepted the provisions of section twenty of chapter 
ae himdred and six of the Revised Laws, is a party which may involve 
16 employment of laborers, workmen or mechanics shall contain a 
ipulation that no laborer, workman or mechanic working within this 
)ramonwealth, in the employ of the contractor, sub-contractor or other 
irson doing or contracting to do the whole or a part of the work con- 



304 



OPINIONS OF THE ATTORNEY-GENERAL. 



templated by the contractor shall be requested or required to work more 
than eight hours in any one calendar day, and every such contract which 
does not contain this stipulation shall be null and void. 

Your question possibly arises from the fact that you con- 
sider wood trim, wood finish, doors and casings as a finished 
product. They may be so, but it is true that many other kinds 
of material going into the construction of a building, and 
properly falling under the head of material or supplies, are also 
finished products. Such things as nails, putty, paint and many 
other kinds of articles represent somebody's finished product. 
They are, however, part of the necessary material of the build- 
ing. If wood finish, doors, casings and other wood trim are 
purchased of a manufacturer in the open market under a con- 
tract to which the Commonwealth or any town or city which 
has adopted the provisions of the eight-hour law is a party, 
they are, in my opinion, to be regarded as material or supplies 
within the meaning of the statute above referred to. 



Totte 
State Board 
of Education. 

1914 
Augiist 12. 



Board of Education — Framingham Normal School — 

Laundry. 

A resolve providing for the erection and furnishing of a dormitory in a normal 
school does not authorize the equipment of a laundry. 

You have submitted a copy of chapter 141 of the Resolves 
of 1914, and ask "if there is anything in this act which would 
prevent this Board from equipping a laundry in connection 
with this building." 

The resolve referred to reads as follows : — 

Resolved, That there be allowed and paid out of the treasury of the 
commonwealth a sum not exceeding one hundred and forty-five thousand 
dollars, to be expended at the state normal school at Framingham, under 
the direction of the board of education, for erecting and furnishing a 
new dormitory, for additional sewer beds and drains, for repairs to the 
heating plant and the installation of new boilers, and for engineers' and 
architects' fees. 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 305 

The appropriation is made for the specific purposes named 
in the act: (1) to erect and furnish a new dormitory; (2) for 
additional sewer beds and drains; (3) for repairs to the heating 
plant and the installation of new boilers, and (4) for engineers' 
and architects' fees. 

The question seems to be whether the word "dormitory" 
may properly include equipping a laundry. The word "dor- 
mitory" is defined as — 

A place, building, or room to sleep in. . . . That part of a boarding- 
school or other institution where the inmates sleep, usually a large room, 
either open or divided by low partitions, or a series of rooms opening 
upon a common hall or corridor: in American colleges, sometimes an 
entire building divided into sleeping-rooms. (Century Dictionary.) 

The word "dormitory" has been held not to include a dining 
hall. Hillsdale College v. Rideout, 82 Mich. 94. By the same 
reasoning it would not include a laundry. 

It is not what is contained in but what is omitted from this 
act that creates your difficulty. Your Board may lawfully 
exercise in this matter only such authority as is conferred upon 
it by the Legislature, and this act does not, in my opinion, 
?onfer authority to equip a laundry. 



I District Police — Building Inspectors — Revocation of 

Certificates. 

"ertificates of the proper equipment of buildings, issued under St. 1913, c. 655, 
§ 25, may be revoked by the inspector for the district where the buildings 
are located, whether such inspector issued the original certificate or not. 

You have requested my opinion upon the following question: — to the 

May an inspector of the building inspection department of the District District Police, 
olice revoke a certificate issued by his predecessor in office, under the August 17. 
revisions of section 25 of chapter 655 of the Acts of 1913, to the owner, ~ 
ssee or occupant of a building in the district of said inspector? 

The section of the statute above referred to provides as 
)llows: — 



306 OPINIONS OF THE ATTORNEY-GENERAL. 

Section 25. Except as is otherwise provided by law, the inspectors 
shall from time to time examine all buildings within their respective 
districts which are subject to the pro\dsions of this act. If, in the judg- 
ment of any such inspector, such building conforms to the requirements 
of this act for buildings of its class, he shall issue to the owner, lessee or 
occupant thereof, or of any portion thereof used in the manner described 
in section twenty of this act, a certificate to that effect, specifjung the 
number of persons for whom the egresses and means of escape from fire 
are sufficient. Such certificate shall continue in force for not more than 
five years after its date, but so long as it continues in force it shall be 
conclusive e\ddence of a compliance by the person to whom it is issued 
with the provisions of this act. It shall be void if a greater number of 
persons than is therein specified are accommodated or emploj'^ed or 
assemble, lodge or reside within such building or portion thereof, or if 
such building is used for any purposes materiallj^ different from the 
purpose or purposes for wliich it was used at the time of the granting 
thereof, or if its interior arrangement is materially altered, or if any 
egresses or means of escape from fire in such building at the time of grant- 
ing the said certificate are rendered unavailable or are materially changed. 
The certificate may be revoked by such inspector at any time upon 
written notice to the holder thereof or to the occupant of the premises for 
which it was granted, and shall so be revoked if, in the opinion of the 
inspector, circumstances have so changed that the existing egresses and 
means of escape are not proper and sufficient. A copy of said certificate 
shall be kept posted in a conspicuous place upon each story of such build- 
ing by the occupant of the premises covered thereby. 

The certificate provided for by this section, so long as it 
remains in force, is conclusive evidence of a compliance with 
the statute by the ow'ner, lessee or occupant of the building 
for which it was issued, but it may be revoked by the in- 
spector at any time upon w^ritten notice to the holder or to the ' 
occupant of the premises for which it was granted. No ques- 
tion can arise as to the power of the inspector issuing the certifi- 
cate to revoke it, but your question refers to a situation that 
arises when an inspector w^ho has issued such a certificate dief 
or leaves the service or is transferred to another district. 

The Legislature in enacting this statute did not, in m} 
opinion, intend that it should be necessary that the sam( 
individual who issued the certificate should be the only onf 
who could possibly revoke it. It is my opinion, therefore 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 307 

that while such a certificate may not be revoked by an in- 
spector other than the one who issued it, who may, by chance 
or upon some sudden exigency, be in the district, it may be 
revoked at any time upon notice in writing by the inspector for 
the district in which the building is located without regard to 
the personality or individuality of the inspector. In other words, 
the fact that the inspector who issued the license is not the 
same person who revokes it is not material so long as it was 
issued by the inspector for the district in which the building 
is situated and is revoked by the inspector for the same district. 
As this answers your first question in the affirmative, con- 
sideration of your second question becomes unnecessary. 



Directors of the Port of Boston — Time devoted to 

Work. 

Under St. 1914, c. 712, each member of the Directors of the Port of Boston is 
required to devote the regular working hours of every working day to the 
work of the Board. 

You have requested my opinion as to the proper con- To the 

Directors of 

5truction to be placed upon that part of chapter 712 of the the Port of 
'^cts of 1914, entitled "An Act relative to the Directors of the . i9i* „ 

August 19. 

Port of Boston," which relates to the time to be devoted to 
he work of the Directors of the Port by the respective members 
)f the Board. Section 1 of the chapter referred to provides as 
ollows : — 

The governor, with the ad\'ice and consent of the council, shaU appoint 
liree persons who shaU constitute a board to be known as the Directors 
f the Port of Boston, hereinafter caUed the directors. The terms of 
ffice of the persons first appointed by the governor shaU be so arranged 
nd designated at the time of their appointment that the term of one 
lember shall expire in three years, one in two years and one in one year . 
cm the first day of July, nineteen hundred and fourteen. Annually 
lereafter the governor shall appoint one member to serve for three 
ears, as the term of any member expires. Any vacancy occurring among 
le directors shall be filled for the unexpired term by the governor. The 
)vernor shall designate one member as chairman and another as secre- 



308 OPINIONS OF THE ATTORNEY-GENERAL. 

tary, whose duties shall be those customarily performed by chairmen 
and executive secretaries. Each member shall devote his entire time 
to the work of the directors. Each member shall receive an annual 
salary of six thousand dollars. 

Your inquiry relates solely to the following sentence: "Each 
member shall devote his entire time to the work of the di- 
rectors." 

It is provided by law that "in construing statutes . . . 
words and phrases shall be construed according to the common 
and approved usage of the language." R. L., c. 8, § 4. 

Applying this rule of construction it hardly need be said 
that the phrase "entire time" as used in the statute refers to 
the usual and regular time for work, and has no relation to 
any time other than the regular hours of labor; and the con- 
struction of this statute depends upon the common and ap- 
proved usage of the word "entire." It has been said that "the 
best lexicographers define 'entire' to be the whole, undivided, 
not participated in with others." Heathman v. Hall, 3 Iredell, 
414. 

This word is more fully defined as '"whole; unbroken; un- 
diminished; perfect; not mutilated; . . . full; complete; un- 
divided; wholly unshared, undisputed, or unmixed." (Century 
Dictionary.) 

Applying the statutory rule of construction above stated to 
the statute in question, it is my opinion that the provisions of 
chapter 712 of the Acts of 1914 require that each member of 
the Directors of the Port of Boston shall devote the regular 
working hours of every working day to the work of the Board. 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 309 



Liquor Law — Common-law Right to enter a Nolle 

Prosequi. 

The common-law authority of district attorneys to enter a nolle prosequi in prose- 
cutions for violation of liquor laws is prohibited by R. L., c. 100, § 55. 



You have requested my opinion upon the following question : — district 

Attorney for 

Does R. L., c. 100, § 55, regulating the disposition of prosecutions the Northern 
for Aiolation of law relative to intoxicating Uquors, constitute a pro- i9i4 

hibition of the common-law authority of the district attorney to enter a 

nolle prosequi in such cases? 

The Constitution of Massachusetts, Chapter VI., Article VI., 
provides that — 

All the laws which have heretofore been adopted, used, and approved 
in the Province, Colony, or State of Massachusetts Bay, and usually 
practised on in the courts of law, shall still remain and be in full force, 
until altered or repealed by the legislature; such parts only excepted 
as are repugnant to the rights and liberties contained in this constitution. 

This provision served in the first place to preserve in the 
Commonwealth a body of law and a system of legal procedure 
during the time that must necessarily elapse between the adop- 
tion of the Constitution and the enactment and adoption of 
such other body of laws and methods of procedure as the 
Legislature might determine. 

It is perfectly clear that the common law and the laws 
idopted by the province, colony or state of Massachusetts Bay 
ire subject to revision and repeal at the will of the Legislature. 
U the common law a district attorney might enter a nolle 
nosequi in cases of violation of the laws in regard to intoxicat- 
ng liquors. And here the statute comes in with the provision 
hat — 

A prosecution for the violation of any provision of law relative to 
itoxicating liquors shall not, unless the purposes of justice require such 
isposition, be placed on file or disposed of except by trial and judgment 
ccording to the regular course of criminal proceedings. It shall be ether- 
ise disposed of only upon motion in writing stating specifically the 
3asons therefor and verified by affidavit if facts are reUed on. If the 



310 OPINIONS OF THE ATTORNEY-GENERAL. _ 

i 

court or magistrate certifies in writing that he is satisfied that the cause 
relied on exists and that the interests of public justice require the allow- 
ance thereof, such motion shall be allowed and said certificate shall be 
filed in the case. (R. L., c. 100, § 55.) 

A statute is the written expression of the legislative will. It is the 
positive declaration of what the law shall be by that branch of the govern- 
ment possessing legislative functions, . . . "When duly enacted it be- 
comes controlling in respect to the matter to which it properly relates, 
and unless transcribing certain fixed constitutional limitations, its effect is 
absolute until again changed by like legislative authority. (36 Cyc. 941.) 

A statute is imphedly repealed by a subsequent one revising the whole 
subject-matter of the first; Bartlett v. King, 12 Mass. 545; Nichols v. 
Squire, 5 Pick. 168; and in the case of a statute re\"ising the common 
law, the imphcation is at least equally strong. (Commonwealth v. Cooley, 
10 Pick. 37.) 

Section 55 of chapter 100 of the Revised Laws was evidently 
intended to revise and change the statute and the common law 
in regard to prosecutions for violation of law relative to in- 
toxicating liquors. It is true that a nolle prosequi is not 
specifically mentioned in this section. But entering a nolle 
prosequi is one way of disposing of a prosecution of this kind, 
and the statute provides that such a prosecution shall not,,j 
unless the purposes of justice require such disposition, be placed 
on file or disposed of except by trial and judgment according 
to the regular course of criminal proceedings. And if justice 
requires that such a prosecution be placed on file or otherwise 
disposed of without trial, this section contains elaborate pro- 
visions for bringing the fact to the attention of the court and 
for such action as the court may deem proper. 

It is my opinion that section 55 of chapter 100 of the Re- 
vised Laws does prohibit the exercise of the common-law 
authority of the district attorney to enter a nolle prosequi in 
prosecutions for violation of any provision of law relative to 
intoxicating liquors. 



I 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 311 



Highway Commission — Contract. 

Under a statute authorizing the construction of a street and providing for a "road- 
way above the finished subgrade of wood block pavement upon a cement 
base, or some other suitable material," the last clause refers to the base and 
does not warrant the use of pavement other than wood block. 

The Highway Commission, in the absence of statutory direction, has authority 
to exercise its discretion as to the materials to be used in any work. 

You have requested my opinion upon the following ques- To the 

ivi 3>ss 3>c n u sc t L s 

tionS ' Highway 

* Commission. 

1914 

(1) Has this Commission authority, under the provisions of section 5 August 3i. 
of chapter 778 of the Acts of 1913 relating to the construction of Humphrey 
Street in the Town of Swampscott, to change, by agreement with the 
contractor, the contract and specification heretofore made for paving 
said street with wood block upon a cement base so that said street may 
be paved with some material other than wood block? (2) Has this Com- 
mission in constructing certain approaches to Humphrey Street authority 
to use any material other than wood block for paving? 

Chapter 778 of the Acts of 1913 is entitled "An Act relative 
to the laying out and construction of Humphrey Street in the 
town of Swampscott." This chapter contains full and elaborate 
provisions for the preparation of plans and specifications for 
the laying out and construction of Humphrey Street in the 
town of Swampscott, for the approval of such plans and speci- 
fications by county commissioners for the county of Essex and 
the selectmen of the town of Swampscott, for the laying out of 
said street, the acquisition of such lands as may be necessary 
in order to carry this act into effect, for the payment of damages 
and for other things incident to and attendant upon the laying 
out and construction of a public way that is expected and 
intended to be a thoroughfare. 

Your questions seem to be founded upon or to arise in re- 
gard to the provisions of section 5 of this chapter, which are 
as follows : — 

Upon the completion of the layout of said Humphrey street as afore- 
said, the Massachusetts highway commission shall construct said street 
'^0 the finished subgrade line, and shall construct sidewalks with curbs, 
:he necessary retaining walls, and all necessary means of drainage, in- 



312 OPINIONS OF THE ATTORNEY-GENERAL. 

eluding any changes which may be necessary in the present underground 
structures and connections, and shall build a roadway above the finished 
subgrade of wood block pavement upon a cement base, or some other 
suitable material, from a line eighteen inches outside the car tracks to 
the sidewalk curb on each side, in accordance with said plans and speci- 
fications. 

Does the expression "and shall build a roadway above the 
finished subgrade of wood block pavement upon a cement base, 
or some other suitable material" as used in section 5 limit your 
board to the use of wood block as the only paving material it 
may lawfully use in the construction of this street? 

In construing a statute the effort always is to ascertain and 
carry out the intention of the Legislature. It is ever to be 
borne in mind, however, that the intention of the law-making 
power is to be ascertained by a careful examination and a 
reasonable construction of the language of the statute and 
not by a construction founded upon mere arbitrary rule or 
conjecture. 

In one case it was said by a judge of great learning that — 

Our decision may perhaps in this particular case operate to defeat the 
object of the statute but it is better to abide by this consequence than to 
put upon it a construction not warranted by the words of the act in order 
to give effect to what we may suppose to have been the intention of the 
Legislature. (Lord Tenterden in King v. Inhabitants of Barham, 8 
Barn. & C. 99.) 

It has been suggested that in the phrase "and shall build a 
roadway above the finished subgrade of wood block pavement 
upon a cement base, or some other suitable material " the words 
" or some other suitable material " relate back to and include 
the words " wood block pavement " as well as the words " cement 
base," the claim being that this phrase as it stands means the 
same and is to be given the same effect that it would have if it 
read " shall build a roadway above the finished subgrade of wood 
block pavement or some other suitable material, upon a cement 
base or some other suitable material." 

It is suggested that the fact that a comma is found after 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 313 

the word "base" is of some peculiar force and significance in 
the construction of this statute. While punctuation may be 
resorted to as an aid, it is at best of slight value in the in- 
terpretation of statutes and has been more frequently dis- 
regarded entirely than resorted to for assistance. 

The Supreme Court of the United States has said that — 

Punctuation is a most fallible standard by which to interpret a writing; 
it may be resorted to when all other means fail; but the court will first 
take the instrument by its four corners, in order to ascertain its true 
meaning; if that is apparent on judicially inspecting the whole, the 
punctuation \A'ill not be suffered to change it. {Ewing v. Burnet, 1 1 Pet. 
41.) 

In the interpretation of ^^Titten instruments, very little consideration 
is given by the courts to the punctuation, and it is never allowed to 
interfere with or control the sense and meaning of the language used. 
The words employed must be given their common and natural effect, 
regardless of the punctuation or grammatical construction. (Black on 
Interpretation of Laws, §§ 86-88.) 

The Supreme Judicial Court of this Commonwealth, in a 
case in which the punctuation of the draft of a bill as passed 
by the Legislature to be engrossed was urged in support of a 
certain theory of statutory construction, said : — 

It is unnecessary to resort to the draft of the bill as passed to be en- 
grossed, in order to explain the statute as actually engrossed, for the 
general rule is that punctuation is no part of a statute. Barrington on 
Sts. (5th ed.) 439, note. 3 Dane Ab. 558. Dwarris on Sts. (2d ed.) 601. 
{Gushing v. Worrick, 9 Gray, 382.) 

. Again, in the case of Martin v. Gleason, 139 Mass. 183, the 
Supreme Judicial Court, speaking by Allen, J., began its opinion 
leciding the case wdth these words : — 

Disregarding punctuation, as may properlj^ be done in construing a 
statute. 

Che same doctrine was laid down by the Supreme Judicial 
I^ourt in the case of Browne v. Turner, 174 Mass. 150. 



314 OPINIONS OF THE ATTORNEY-GENERAL. 

In another case the Supreme Judicial Court said: — 

Although it has been held that punctuation may be disregarded 
{Gushing v. Worrick, 9 Gray, 382, 385), it may be resorted to as an aid 
in construction when it tends to throw light on the meaning. {Common- 
wealth V. Kelley, 177 Mass. 221.) 

In a later case the Supreme Judicial Court has again de- 
clared that punctuation may be disregarded entirely or re- 
sorted to as an aid in construction, and that it is at best only 
an aid in construction. Friberg v. Builders' Iron & Steel Co., 
201 Mass. 458. 

Taking up the construction of the phrase above quoted with- 
out regard to its punctuation, we find that the ordinary and 
usual rule of construction in cases like the one presented by 
your first question has been declared by the Supreme Judicial 
Court in the following language: — 

The ordinary rule of construction in a case like this confiaes the ex- 
ception to the last antecedent. . . . Bee also Bullard v. Chandler, 149 
Mass. 532. {Commonwealth v. Kelley, 177 Mass. 221.) 

The words of the statute under consideration are to be read 
in their ordinary and usual significance. They acquire no 
new, strange or technical meaning because found in a statute. 
The phrasing of the sentences of the statute is to be given the 
same force that would be given to sentences of like phrasing 
in other writings. The position of the words in the phrase 
above referred to, in which a succession of particulars is fol- 
lowed by an exception apparently single in purpose, is, in my 
opinion, of suflScient force to control the meaning of the phrase 
and make it subject to the ordinary rule of construction, that 
the exception refers to the last antecedent only, which in the 
sentence referred to is "cement base." I am aware that this 
rule, like most rules of construction, is, under certain circum- 
stances, subject to modification, but in my opinion the statute 
before me presents a proper case for the application of the 
ordinary rule as established by the Supreme Judicial Court as 
stated above. 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 315 

It is therefore my opinion that your commission is not 
authorized by chapter 778 of the Acts of 1913 to use any 
material for paving Humphrey Street other than wood block. 

Referring to your second question, which relates to the 
material to be used for paving the approaches to Humphrey 
Street, we find that no provision for such approaches was made 
by chapter 778 of the Acts of 1913. The authority to lay out 
and construct the approaches was conferred on your com- 
mission by chapter 398 of the Acts of 1914. By section 1 of 
the last-mentioned act your commission is authorized "to 
prepare forthwith or to include in its plans and specifications 
for the layout and construction of Humphrey street in the 
town of Swampscott, in accordance with the provisions of 
chapter seven hundred and seventy-eight of the acts of the 
year nineteen hundred and thirteen, plans and specifications 
for such suitable approaches at either end of said Humphrey 
street as it may deem proper." 

It has been urged that the words "in accordance with the 
provisions of chapter seven hundred and seventy-eight of the 
acts of the year nineteen hundred and thirteen" mean that 
the construction of the approaches must in all particulars be 
identical with the construction of Humphrey Street, and that 
if the commission is bound by chapter 778 of the Acts of 1913 
to use only wood block for paving that street it is bound to 
use the same material only for paving the approaches to the 
street. 

It is to be observed, however, that the words "in accordance 
with" do not necessarily relate to the construction of the 
approaches but to plans and specifications that have been, or 
that may be, made for the layout and construction of Hum- 
phrey Street in the town of Swampscott in accordance with 
chapter 778 of the Acts of 1913. 

The last part of the sentence above quoted from chapter 398 
of the Acts of 1914, "for such suitable approaches at either end 
of said Humphrey street as it [the commission] may deem 
proper," confers upon your commission authority for the 
exercise of a broad discretion as to what are or will be suitable 



316 



OPINIONS OF THE ATTORNEY-GENERAL. 



approaches, and as to what your commission may deem proper. 
It is my opinion that your commission is authorized to exercise 
its judgment and discretion as to the material to be used for 
paving the approaches to Humphrey Street. 



To the Com- 
missioner of 
Weights and 
Measures. 

1914 
September 24. 



Sealers of Weights and Measures — Signatures. 

The signatures of sealers or deputy sealers of weights and measures on sealed 
scales should be in the handwriting of the officer who affixes the seal, and 
not a printed facsimile of his signature. 

You have requested my opinion upon the following ques- 
tion : — 

Would it be legal for the Sealer of Weights and Measures, or deputy 
sealer, to use a seal . . . with his name printed thereon, or should he 
sign his name, together with date, in his own handwriting, at the time of 
sealing a scale or other device? 

Your question relates entirely to the necessity of a signature 
in the handwriting of the officer whose official act is to be 
attested by the signature. 

Clause 25 of section 5 of chapter 8 of the Revised Laws 
provides that — 

The words "written" and "in writing" may include printing, en- 
graving, lithographing and any other mode of representing words and 
letters; but if the written signature of a person is required by law, it 
shall always be his ovm handwriting or, if he is unable to write, his mark. 

In a discussion of this provision of the statute the Supreme 
Judicial Court of the Commonwealth has said : — 

We think it was intended to require a signature in the proper hand- 
writing of a person only m those cases where, by express language, or 
by usage, or by implication arising from the nature of the document to 
be signed, a written signature is required by law, as the direct personal 
act of the person whose name is to be signed. Numerous instances of 
this character are to be found in the Constitution and statutes. For 
example, a certain oath is required to be taken and subscribed by every 
person chosen or appointed to any office (Amend, to Mass. Const., Art. 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 317 

VI.); and the oaths of the Governor, Lieutenant Governor and Coun- 
cillors are to be taken and subscribed in the presence of the two houses 
of assembly. Const. Mass., Pt. II., c. VI., art. I. For various statutes 
respecting the taking and subscribing of oaths by different officers, by 
insolvent debtors, and by poor debtors, see Pub. Sts., c. 14, § 55; c. 18, 
§§ 10, 14; c. 21, §§ 3, 4; c. 27, § 88; c. 157, § 76; c. 158, §§ 2, 6; c. 162, 
§ 38. Various certificates also are to be made by different public officers, 
which according to usage bear their signatures in their own handwriting, 
such as certificates of the acknowledgment of deeds, and of the taking 
of oaths. See Pub. Sts., c. 27, § 88; c. 120, § 6; c. 150, § 5; c. 157, § 77; 
c. 162, §§ 1, 2, 17, 19, 40; c. 169, §§ 40, 48. Commissioners to take 
acknowledgments in other States and in foreign countries must file in 
the office of the Secretary of the Commonwealth impressions of their 
seals, together with their oaths of office and their signatures. This must 
necessarily implv signatures in the proper handwriting of such commis- 
sioners. Another illustration is found in the Twentieth Amendment to 
the Constitution, though this was not adopted till after the establishment 
of the statutory rule under consideration. This amendment provides 
that no person shaU have the right to vote or be eligible to office who 
shall not be able to read the Constitution in the English language, and 
write his name. A signature in the proper handwriting of the voter or 
officer is plainly contemplated. 

The fact that you ask this question indicates that the use 
of facsimiles of the signatures of your officers is of doubtful 
legality, while there is no doubt whatever if the genuine signa- 
ture is used. The signature of the Sealer or deputy sealer upon 
such a seal as the one submitted with your inquiry is the at- 
testation of an official act. It is an official signature. Clearly, 
the safe practice is in every instance to require the signature 
in the handwriting of the official who is acting, and this, it 
seems to me, is required by usage. While the question may not 
be entirely free from doubt, it is my opinion that the official 
signatures in cases of the kind covered by your question should 
be in the handwriting of the officer who affixes the seal. 



318 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the 

Commissioner 
of Health. 

1914 
September 29. 



Cold Storage Eggs — Sales in Storage — Interstate 

Shipments. 

Under St. 1913, c. 538, as amended by St. 1914, c. 545, eggs which are in cold 
storage when sold, and which are to remain until called for by the purchaser, 
need not be marked until withdrawn from storage. 

Under the statute cold storage eggs withdrawn for sale for consumption within 
the State or for export are required to be marked. 



Dear Sir: — You have 
following questions : — 



requested my opinion upon the 



I. Suppose A owns 1,000 cases of eggs in a storage warehouse in 
Boston, and sells 500 cases to-day to B, it being understood that B is still 
to allow the eggs to be kept in storage until such time as he needs them; 
must A mark these eggs in storage "cold storage eggs"? 

II. If A sells to-day 500 cases of eggs in storage to B, whose business 
is in Newport, R. I., and the eggs are delivered into a car svvitched into 
the warehouse, must these eggs be marked "cold storage eggs," it being 
understood that Rhode Island has no cold storage law? 

III. Must all shipments to another State of eggs that have been 
cold stored be marked "cold storage eggs"? 

The statute (section 1 of chapter 538 of the Acts of 1913, 
as amended by chapter 545 of the Acts of 1914) provides 
that — 

Whenever eggs that have been in cold storage are sold at wholesale 
or retail, or offered or exposed for sale, the basket, box or other con- 
tainer in which the eggs are placed shall be marked plainly and con- 
spicuously with the words "cold storage eggs," or there shall be attached 
to such container a placard or sign having on it the said words. If eggs 
that have been in cold storage are sold at retail or offered or exposed for 
sale without a container, or placed upon a counter or elsewhere, a sign 
or placard, having the words "cold storage eggs" plainly and con- 
spicuously marked upon it, shall be displayed in, upon or immediately 
above said eggs; the inter t of this act being that cold storage eggs sold 
or offered or exposed for sale shall be designated in such a manner that 
the purchaser will know that they are cold storage eggs. The display of 
the words "cold storage eggs," as required by this act, shall be in letters 
not less than one inch in height and shaU be done in such a manner as is 
approved by the state board of health. 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 319 

Your questions relate to the sale of eggs which are at the 
time of sale in cold storage. The language of the statute is, 
"whenever eggs that have been in cold storage are sold," etc. 
The intention of the Legislature in the enactment of this 
legislation was to protect the public against the sale of cold 
storage eggs for those of a more desirable quality. 

You call attention to the self-evident fact that eggs that 
are in cold storage have been in cold storage. Notwithstand- 
ing this very apparent fact, I have to say that in my opinion 
the statute in regard to marking containers and in regard to 
placards and signs applies to eggs that have been in cold 
storage and have been withdrawn from cold storage for the 
purpose of sale or to be offered or exposed for sale, and that 
the words "eggs that have been in cold storage" as used in 
this statute do not relate to eggs that are in cold storage when 
sold or offered for sale. 

The purpose of this statute is set forth in the statute itself 
in the following words: "the intent of this act being that cold 
storage eggs sold or offered or exposed for sale shall be desig- 
nated in such a manner that the purchaser will know that 
they are cold storage eggs." Obviously, when eggs are sold 
while actually in cold storage, the fact as to storage is nec- 
essarily known to both buyer and seller, and the opportunity 
for fraud as to the fact of storage in such a case does not exist. 
It is only when eggs in cold storage are withdrawn therefrom 
that opportunity is offered for fraud in their sale. I therefore 
inswer your first inquiry in the negative; and the answer to 
this question, with the views above set forth, seems also to 
iispose of your second inquiry, and further comment seems 
mnecessary. 

In response to your third question I have to say that when- 
•ver eggs that have been in cold storage and have been with- 
Irawn therefrom are sold or exposed or offered for sale in this 
'ommonwealth, whether for consumption here or for export, 
he containers of such eggs must be marked as required by 
tatute. 



320 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the 
Civil Service 
Commission. 

1914 
October 6. 



Civil Service — Inspectors of Masonry Construction — 
Building Inspectors. 

Under St. 1914, c. 540, it is the duty of the Civil Service Commissioners to certify 
for positions as inspectors of masonry construction only persons who have 
had practical experience as journeymen masons, but the provisions of this 
statute do not apply to a building inspector unless his principal duty is the 
inspection of masonry construction. 

You have requested my opinion upon the following ques- 
tions: — 

First. — Is it the duty of the Civil Service Commission to certify for 
positions as inspectors of masonry construction only persons who have 
had practical experience as journeymen masons, or may it certify persons 
who without any experience as journeymen masons have acquired a 
knowledge of masonry construction by working as foremen, civil en- 
gineers, or architects, or other lines of employment Avhich would give 
them a knowledge of masonry construction? 

Second. — In certifying for the position of building inspectors in the 
different cities and towns of the Commonwealth, is it the duty of the 
commission to certify only such persons as have had practical experience 
as journeymen masons? 

The statute in regard to this matter (chapter 540 of the 
Acts of 1914) provides as follows: — 

Section 1. Persons employed by the commonwealth, or by an}' 
metropolitan board or commission, or by any county, city or town, as 
inspectors of masonry construction, shall have had at least three years' 
practical experience in masonry construction, but shall not be required 
to have technical knowledge as engineers, architects or draftsmen, unless 
they have other duties for which such knowledge is necessary. The 
provisions of this section shall apply only to persons whose principal 
duty is the inspection of masonry construction, consisting of stone, brick 
or substitutes therefor. 



The answer to your question depends upon the definition 
given to the phrase "practical experience." The word "practi- 
cal," so far as its definition is necessary in the consideration 
of this question, may be defined as "relating or pertaining to 
action, practice, or use: opposed to theoretical, speculative or 
ideal, (a) Engaged in practice or action; concerned with 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 321 

material rather than ideal considerations, (b) Educated by 
practice or experience; as, a practical gardener, (c) Derived 
from experience; as practical skill; practical knowledge, (d) 
Used, or such as may advantageously be used, in practice. 
. . . (e) Exemplified in practice." "Experience" is defined 
as "a trial, proof, experiment, experimental knowledge. The 
state or fact of having made trial or proof, or of having ac- 
quired knowledge, wisdom, skill, etc., by actual trial or observa- 
tion; also, the knowledge so acquired; personal and practical 
acquaintance with anything." 

"Experience," then, may be gained either by actual trial or 
Dy observation. "Practical experience" clearly means experi- 
mce gained by actual trial, that is, by the actual manual 
performance of work in masonry construction. This definition 
coincides with the popular use of the term " practical experi- 
mce." It is provided by clause 3 of section 4 of chapter 8 
)f the Revised Laws that — 

Words and phrases shall be construed according to the common and 
pproved usage of the language; but technical words and phrases and 
uch others as may have acquired a peculiar and appropriate meaning 
1 the law shall be construed and understood according to such meaning. 

The popular use of the word "practical," as applied to 
arious callings, as, a practical gardener, practical mechanic, 
Tactical farmer, coincides with the definition and construction 
bove given. 

I have not found any decision of the Supreme Court defining 
le phrase "practical experience." My attention has been 
irected to the cases of State v. Starkey, 49 Minn. 503, and 
eople V. Board of Aldermen, 42 N. Y. Supp. 545, but a dis- 
nction may readily be drawn between each of these cases and 
le question now under consideration. 

It is my opinion that under this statute your commission 
lould certify for positions as inspectors of masonry construc- 
3n only such persons as have had three years' experience 
1 journeymen masons. 
In answer to your second question I have to call your 



322 



OPINIONS OF THE ATTORNEY-GENERAL. 



attention to the language of the statute itself: "the provisions 
of this section shall apply only to persons whose principal duty 
is the inspection of masonry construction, consisting of stone, 
brick or substitutes therefor." This seems to me clearly to 
answer your question. The fact that a building inspector of a 
city or town may at some time be required to inspect masonry 
construction does not affect his qualification for appointment 
unless his principal duty is the inspection of that kind of work. 



To the 

Civil Service 
Commission. 

1914 
October 21. 



Civil Service — Foremen and Inspectors — Vacancies. 

Whenever the Civil Service Commission is required to certify a list of names of 
persons by reason of a vacancy in the position of foreman or inspector in 
any department, it must, when practicable, include the name of one person 
serving as a laborer or mechanic in such department. 

You ask for a construction of chapter 479 of the Acts of 1914, 
and whether your commission shall certify for each vacancy the 
name of one person who is serving as a laborer or mechanic in 
any department, or whether the person to be certified must 
have had special experience in the service required in the 
position which he is to fill. 

The statute is clear and is, I think, to be taken literally. 
It reads as follows : — 

Whenever an appointing officer or board shall make requisition upon 
the civil service commission to fill a vacancy or vacancies in the position 
of foreman or inspector, and a request is made in said requisition for the 
certification of persons having had experience in the department from 
which the requisition comes, the commission shall, so far as may be prac- 
ticable, include among the names certified the name of at least one person 
for each vacancy who is serving as a laborer or mechanic in such depart- 
ment. 

The words "persons having had experience in the depart- 
ment" are not, in my opinion, to be taken to mean experience 
in some special work of the department. The last clause of 
section 1 — "the commission shall, so far as may be practi- 
cable, include among the names certified the name of at least 



I 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. '323 

one person for each vacancy who is serving as a laborer or 
mechanic in such department" — should be construed exactly 
as it reads; that is, any person serving as a laborer or mechanic 
in such department is eligible to certification. 



Board of Education — Superintendency Union — Towns. 

Under St. 1914, c. 556, only such towns as are required to join a superintendency 
union are required to belong to such a union. 

I am in receipt of your letter making inquiry as follows: — To the 

State Board 

Chapter 556 of the Acts of 1914 places upon the Board of Education °^ Education. 
;he responsibility of establishing standards of organization, equipment November 12. 
md instruction for high schools maintained by the towns required to 
)elong to a superintendency union. In the discharge of this duty the 
ioard finds it is necessary to secure the opinion of the Attorney-General 
;S to the interpretation of the phrase "required to belong to a superin- 
endency union." 

In my opinion the words in question refer only to towns 
equired to join a union; i.e., to the towns enumerated in 
ection 43 of chapter 42 of the Revised Laws. The fact that 
ther towns which have the option of joining a union may, 
y joining voluntarily, render themselves forever bound to that 
nion, does not classify them as towns "required to belong to 
1 superintendency union." 



[ Metropolitan Park Commission — Deeds — Mercantile 

Purposes. 

waiting room used for the sale of ice cream, soda, etc., comes within the re- 
striction in a deed of land prohibiting the use of a building for mercantile 
purposes. 

here similar building restrictions are attached to different portions of a tract 
of land, each grantee has a right in the nature of an easement which may 
be enforced against the grantee of another lot. 

You have submitted to me various inquiries relative to axotheMetro- 
rtain deed of Eugene G. Ayer. The facts are briefly as Commission. 

u ^ 1914 

Hows: when your Board constructed Fellsway West under No vember 19. 



324 OPINIONS OF THE ATTORNEY-GENERAL. 

the authority of chapter 288 of the Acts of 1894, all of the 
deeds which you obtained from the owners of land taken im- 
posed certain restrictions on the remaining land of the owners. 
These restrictions contained substantially the following lan- 
guage:— 

No building erected or placed upon said premises shall be used for a 
livery or public stable or for any mechanical, mercantile or manufacturing 
purposes. 

Such a deed was received from Eugene G. Ayer. He now 
proposes to erect a building on his land covered by these re- 
strictions, to be used as a general waiting room for the travel- 
ing public, and for the sale of ice cream, soda, cigars and 
tobacco, and such light commodities as are usually sold in 
street railway waiting rooms, and for the purposes of a drug 
store. 

You have requested my opinion on the following points: — 

I. Would the use of this building, as set forth in the petition of Mr. 
' Ayer, be for mechanical, mercantile or manufacturing purposes, and in 

violation of said restrictions? 

II. Would a building of the nature and cost above set forth be erected 
and maintained in violation of said restrictions? 

III. Has this Board authority under any circumstances to release this 
land from the operation of restrictions imposed in the manner above set 
forth? 

IV. What would be the effect on the authority of the Board to en- 
force similar restrictions on other lands abutting on said Fellsway West, 
if it has authority to and should release the land of Ayer in question from 
the operation of the particular restrictions referred to above? 

With regard to the first point, our Supreme Judicial Court 
has recently quoted with approval the following definitions: — 

The word "merchant" is defined in the Century Dictionary as "one 
who is engaged in the business of bujang commercial commodities and 
selling them again for the sake of profit, especially one who buys and 
sells in quantity or by wholesale," or "a shopkeeper or storekeeper;" 
and "mercantile" is defined thus: "Of or pertaining to merchants or 
the traffic carried on by merchants; having to do with trade or commerce, 
trading, commercial." {Carr v. Riley, 198 Mass. 70, 75.) 



I 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 325 

Both that definition and the common acceptance of the word 
clearly show that the use of the building as contemplated by 
Mr. Ayer is for mercantile purposes. 

With regard to the second point, it naturally follows from the 
answer to your first question that such a building would violate 
the restrictions. 

With regard to the third point. 

It is a familiar principle of law, which has been applied in many cases, 
that when one makes deeds of different portions of a tract of land, each 
containing the same restriction upon the lot conveyed, which is imposed 
is a part of a general plan for the benefit of the several lots, such a re- 
striction not only imposes a liability upon the grantee of each lot as 
between him and the grantor, but it gives him a right in the nature of an 
;asement, which vdW be enforced in equity against the grantee of one of 

he other lots, although there is no direct, contractual relation between 

he two. {Evans v. Foss, 194 Mass. 513, 515.) 

The principle should be the same when the restrictions are 
mposed by deeds from the various owners to a central au- 
hority instead of from one person to various owners. The 
ither abutters on Fellsway West who have given deeds similar 
o that of Mr. Ayer have a right in Mr. Ayer's land in the 
ature of an easement which your Board cannot release. I 
herefore answer your third question in the negative. 

The answer to the third inquiry disposes of the fourth. 



Teachers' Retirement Act — Evening Schools. 

teacher who resigned in 1911 as principal of a public school, but who has since 
been employed in evening school work, is not eligible for retirement under 
the provisions of St. 1913, c. 832. 

You have asked my opinion as to whether the facts relating xothe 
' the petition of Mr. Dwight Clark for a pension come within tirement Board, 
le scope of the teachers' retirement act (St. 1913, c. 832). November 25. 
he facts as we understand them are as follows: Mr. Dwight 
lark, eighty-three years of age, has been connected with the 



326 OPINIONS OF THE ATTORNEY-GENERAL. 

teaching force of the city of Springfield for fifty-one years. 
Because of faihng health Mr. Clark resigned his principalship 
in June, 1911, but the school board intended to continue his 
service in the public schools, and engaged him in evening 
school work for the two years following. Since September, 
1913, Mr. Clark has been re-employed in the day school service. 
Paragraph (5) of section 6 of this act provides — 

Any teacher who shall have become a member of the retirement associa- 
tion under the provisions of paragraph numbered (2) of section three, and 
who shall have served fifteen years or more in the public schools of the 
commonwealth, not less than five of which shall immediately precede 
retirement. . . . 

The word "teacher" as used in this act is defined in section 
1, paragraph (4), as "any teacher, principal, supervisor or 
superintendent employed by a school committee, or board of 
trustees, in a public day school within the commonwealth." 

The words "public school" are defined in section 1, para- 
graph (5) as "any day school conducted within this common- 
wealth under the order and superintendence of a duly elected 
school committee and also any day school conducted under the 
provisions of chapter four hundred and seventy-one of the acts 
of the year nineteen hundred and eleven." 

The language of the statute with relation to a consideration 
of the questions involved in this particular case admits of only 
one interpretation, namely, that a teacher before he is eligible 
for a pension "shall have served fifteen years or more in the 
public schools of the commonwealth, not less than five of which 
shall immediately precede retirement." This language specifi- 
cally precludes the presumption that service in the evening 
schools is included within the scope of the public school service. 
It follows, therefore, that Mr. Clark's service in the evening 
schools was not a remedy for the interruption of his service in 
the public school service, and the two years devoted to the 
evening schools cannot be reckoned as a period of his service 
in the public schools within the meaning of the words as used 
in the statute. 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 327 

I note that it was the intention of the school board to con- 
tinue Mr. Clark in the public school service, but I am limited 
and confined by the statutory definitions and prescriptions 
which require service in the public day schools, and make no 
provision for evening school work, so that permanent and 
continuous employment in an evening school is neither a sub- 
stitute nor a remedy for the lack of the required continuous 
service in day school work. 

I again refer you to the words "teacher" and "public 
schools" as specifically defined for the purposes of this act. 



December 4. 



Internal Revenue — Tax on Insurance Policies — 
Rebates. 

(Jnder the Federal internal revenue law insurance companies are required to pay 

the tax on policies. 
[f the tax on insurance policies is added by insurance companies to the premiums 

it would be a violation of the anti-rebate law for agents to pay the amount 

of the tax. 

I have received from you a request in the following Ian- To the 

Insurance 

'UaSje : Commissioner. 

' ^ 1914 

The new internal revenue law, which goes into effect on December 1 
lext, puts a tax upon insurance policies thereafter issued. I beg to 
nquire whether fire insurance companies may, under the law, collect 
he amount of this tax from the poHcyholders without making it a part 
f the consideration or premium for the poUcies? 

Also whether, if the answer to this question is that the companies may 
ollect the tax from the policyholders as a separate matter from the pre- 
lium, agents who pay the tax instead of collecting it from their customers 
•ould be guilty of rebating? 

The Federal act of Oct. 22, 1914, contains the following 
rovisions : — 

Sec. 6. That if any person or persons shall make, sign, or issue, or 
luse to be made, signed, or issued, any instrument, document, or paper 

any kind or description whatsoever, without the same being duly 
amped . . . such person or persons shall be deemed guilty of a mis- 
?meanor, . . . 



328 OPINIONS OF THE ATTORNEY-GENERAL. 

Sec. 11. That any person or persons who shall register, issue, sell, or 
transfer, or who shall cause to be issued, registered, sold, or transferred, 
any instrument, document, or paper of any kind or description whatsoever 
mentioned in Schedule A of this Act, without the same being duly stamped, 
. , . shall be deemed guilty of a misdemeanor, . . . 

Schedule A. 

Stamp Taxes. 1 

Insurance: Each policy of insurance . . . upon property of any de- 
scription . . . made by any person, association, or corporation, upon the 
amount of premium charged, one-half of 1 cent on each dollar or fractional 
part thereof: Provided, That purely cooperative or mutual fire insurance 
companies or associations carried on by the members thereof solely for the 
protection of their own property and not for profit shall be exempted 
from the tax herein provided: . . . 

Each policy of insurance ... of indemnity for loss, damage, or liability 
issued, or executed, or renewed by any person, association, company, or 
corporation, . . . upon the amount of premium charged, one-half of 
1 cent on each dollar or fractional part thereof. 

Briefly, the Federal law in question imposes a stamp tax on 
certain insurance policies. From sections 6 and 11, above 
quoted, it is clear that the tax is on the person issuing the 
policy. This is made more clear by the fact that the proviso 
above quoted exempts certain companies rather than their 
policies or their customers. Thus the tax is for the insurance 
companies to pay. 

But from this it does not follow that the companies may 
not pass the tax along. 

Insurance companies, however, have no authority in law to 
charge their customers for a part of their running expenses, 
except as such expenses are included in and form a part of the 
consideration paid for insurance. If this tax could be passed 
on, as such, to the customers, so could local taxes, ofiice rent, 
etc. The charging of doctors' fees for examinations of ap- 
plicants is no precedent, for there an actual service is rendered; 
and, in fact, it is usual not to charge such fees if the policy is 
finally written. 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 329 

There is, however, no legal limit on premiums in Massa- 
chusetts, the only requirements being that they be uniform 
and set forth in the policy. Therefore, an insurance company 
may lawfully add, as a part of the premium, the amount of the 
Federal tax; that is, the premium to be paid for insurance may 
be increased by that amount, but the company cannot charge 
the Federal tax in addition to the premium. 

In the case of fire insurance companies, St. 1911, c. 493, 
provides a board of appeal, with recommendatory powers. I 
suggest that as to this class of companies this board has 
authority to pass upon the question of including the Federal 
tax in the premiums and to make such recommendations as 
may seem meet. 

With respect to the anti-rebate law, I will say that if the 
tax is included in the premium it would clearly be rebating for 
the agent to pay it. But, if not so included, the agent has 
merely paid an obligation of the company, which cannot pos- 
sibly be a rebate to the customer. 



Civil Service — Department of Fire Prevention 
Commissioner. 

Tnder St. 1914, c. 795, the appointees in the department of the Fire Prevention 
Commissioner are subject to the provisions of the civil service law and 
rules. 

You have requested my opinion as to the status under civil J,9^}'% . 

^ I' I- Civil Service 

ervice requirements of the appointees in the department of the Commission. 
'ire Prevention Commissioner. R. L., c. 19, § 9, provides as De cember 7. 
allows : — 

Judicial officers and officers elected by the people or by a city council, 
' whose appointment is subject to confirmation by the executive council 
■ city council of any city, officers elected by either branch of the general 
lurt and the appointees of such officers, heads of principal departments 

the commonwealth or of a city, the employees of the treasurer and 
ceiver general, of the board of commissioners of sa\dngs banks, and of 

e treasurer and collector of taxes of any cit}'', two emploj^ees of the 

y clerk of any city, teachers of the public schools, the secretaries and 



330 OPINIONS OF THE ATTORNEY-GENERAL. 

confidential stenographers of the governor, or of the mayor of any city, 
poUce and fire commissioners and chief marshals, or chiefs of police and 
fire departments, shall not be affected as to their selection or appointment 
by any rules made as aforesaid; but, with the above exception, such rules 
shall apply to members of police and fire departments. 

Acts of 1914, chapter 795, entitled "An Act to provide for 
the better prevention of fires throughout the metropolitan 
district," in section 1 defines certain words. At the end of 
section 2 it is provided as follows : — 

Subject to the approval of the governor and council, the commissioner 
shaU be provided with suitable offices suitably furnished and equipped for 
the performance of his duties. Subject to the approval of the governor 
and council, the commissioner may employ such clerks, stenographers 
and office employees, engineering and legal assistance as he may deem 
necessary. 

It is a general rule of statutory construction, to be applied 
under proper conditions and with important limitations, that 
the express mention of one person, thing or consequence is 
tantamount to the express exclusion of all others. Black on 
Interpretation of Laws, p. 219. 

It would seem that "proper conditions" and "important 
limitations" are observed for the purpose of applying this 
particular principle to the case in hand. The section of the 
Revised Laws above quoted having expressly mentioned the 
persons and classes of persons who shall be exempt from the 
civil service requirements, it must be taken that the appointees 
about whom you inquire cannot be exempt unless they fall 
within a class or group mentioned expressly in the section of 
the Revised Laws above quoted. 

Obviously, the only phrase or clause mentioning a class into 
which they could fall is "whose appointment is subject to con- 
firmation by the executive council." The only ground upon 
which it could be contended that the appointees in question 
may fall within the class coming under this phrase is that the 
phrase "subject to the approval of the governor and council, 
in St. 1914, c. 795, means the same thing as the phrase "sub- 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 331 

ject to confirmation by the executive council" in the quoted 
section of the Revised Laws. This contention is not well 
taken. 

In an opinion rendered by one of my learned predecessors, 
Hon. Dana Malone, upon a similar matter, it was said: — 

I am of opinion that the approval of the emploj'ment and compensation 
of clerks in the several departments of the Commonwealth is not an 
exercise of this function (meaning the function of confirmation of appoint- 
ments exercised by the Executive Council, provided for by the Consti- 
tution and mentioned in the above-quoted section of the Revised Laws), 
even as designated 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 particular appointment 
to be made. 

I see no reason to differ from that opinion. 
It follows, therefore, that the proposed appointments are not 
exempt from the requirements of the civil service. 



Public Schools — Tuition of Nonresident Pupils. 

Where pupils are attending school in a town other than that of their residence, 
the cost of such attendance should be computed on the average expense 
for each pupil in that school, and not on the average expense for pupils in 
such town. 

I am in receipt of your letter requesting my interpretation of J°^*^Boj^rd 
St. 1913, c. 779, § 4. A State minor ward between the ages "'" ^\^ll^^'- 
of five and fifteen years has been placed elsewhere than in his December 9. 
own home by the State Board of Charity and is receiving his 
education in the public schools of that town. The school 
committee has expressed its desire for reimbursement at the 
so-called "average expense rate." 

You ask : — 

Shall the amount reimbursed by the State in this case be an amount 
equal to the average expense for each pupil in the particular school which 
the State minor ward is attending, or shall it be an amount equal to the 
average expense per pupil in all of the public schools of the said town? 



332 



OPINIONS OF THE ATTORNEY-GENERAL. 



The language of the statute seems perfectly clear on this 
point. The words are, "an amount equal to the average ex- 
pense for each pupil of such school." It is to be noted that 
the word "school" is singular and not plural. Although the 
word "such" has apparently no antecedent in the paragraph 
containing it, and although this paragraph refers to "attend- 
ance of every such child in the public schools," yet preceding 
paragraphs of the same section contain the word "school" in 
the singular. The first paragraph contains the words "attend 
school," "attending school," "such school." The second para- 
graph contains the words "attend school," "admission to a 
school." Only in the paragraph in question is the word 
"school" used in the plural. 

In the paragraph relative to reimbursement for transporta- 
tion it is clear that the average expense to the individual 
school in question is contemplated. 

Taking all these matters together it is my opinion that the 
words "such school" in the third paragraph refer to the par- 
ticular school which the child in question attends. 



To the Board 
of Prison Com- 
missioners. 

1914 
December 10. 



Prison Commissioner — Prison Camp — Labor. 

Under R. L., c. 225, §§63 and 65, the employment of prisoners at the Prison 
Camp is limited to the reclamation and improvement of waste places, the 
cultivation of lands and the preparing of material for road building. 

You have requested my opinion upon the following ques- 
tions : — 

First. Is emplojanent of prisoners at the Prison Camp limited to 
reclaiming land and to road building? 

Second. If such employment is not limited, is it within the power 
vested in the Prison Commissioners to establish at said Prison Camp 
such industries, in addition to reclaiming land and road building, as in 
their opinion are best suited to the institution and its inmates? 



R. L., c. 225, §§ 63 and 65, provide as follows: — 

Section 63. The governor and council may purchase or otherwise 
take in fee an}' parcel of waste or unused land, not exceeding one thousand 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 333 

acres in area, for the purpose of reclaiming, improving and disposing of 
it for the benefit of the commonwealth. When land has been so taken, 
the governor and council shall cause a description thereof as certain as 
is required in an ordinarj^ conveyance of land to be filed in the registry of 
deeds for the county or district in which the land lies, with a statement, 
signed by the governor, that it is taken on behalf of the commonwealth 
for the purposes described in this section. The act and time of filing 
such description shall be considered the act and time of taking such land, 
and shall be sufficient notice to all persons that the land has been so taken. 
The title to such land shall then vest in the commonwealth. 

Section 65. After such land has been so taken, the prison commis- 
sioners, with the approval of the governor and council, shall cause iron 
buildings of cheap construction to be erected thereon for the accommo- 
dation of not more than one hundred prisoners. When such buildings 
are ready for occupancy, the governor may issue his proclamation estab- 
lishing on such land a temporary industrial camp for prisoners, and the 
prison commissioners may appoint a superintendent thereof, who shall 
hold his office at their pleasure, give such bond as they require, receive 
such salary as they determine and who shall have the custody of all 
prisoners removed thereto. The superintendent, with the approval of 
the prison commissioners, may appoint and determine the compensation 
of assistants, and thej^ shall hold their office at his pleasure. 

Section 66 contained an explicit provision that prisoners at a 
camp should be employed in reclaiming and improving land 
and in preparing material for road building, but this section was 
expressly repealed by section 5 of chapter 243 of the Acts of 
1904, while section 1 of that act provides as follows: — 

Prisoners who are removed to the temporary industrial camp for 
prisoners shall be governed and employed there under regulations made 
by the prison commissioners. The Massachusetts highway commission 
and the board of agriculture shall from time to time, at the request of 
the prison commissioners, give to them such information as may enable 
them to prosecute to the best advantage the work of reclaiming and 
impro\'ing waste land and of preparing material for road building by 
hand labor. 

It will be seen that the provision of section 60 above referred 
to was omitted in the revision of that section, and as the law 
now stands prisoners in the Prison Camp and Hospital shall be 



334 OPINIONS OF THE ATTORNEY-GENERAL. 

governed and employed there under regulations made by the 
Prison Commissioners. 

The authority of your commission appears to be limited by 
section 1 of chapter 633 of the Acts of 1913, which provides 
as follows : — 

During all times in which outdoor labor is practicable, inmates of 
penal institutions who are required to labor shall be employed, so far 
as is possible, in the reclamation of waste places, and in cultivating lands 
for raising produce to be used in public institutions. Prisoners so em- 
ployed shall be at aU times in the custody and under the direction of the 
prison officers. 

The intention and purpose of the Legislature to make the 
work of reclaiming land and preparing material for road build- 
ing the principal industry at the Prison Camp are indicated by 
the provisions of section 1 of chapter 243 of the Acts of 1904, 
that the Highway Commission and the Board of Agriculture 
shall, upon request of your Board, give such information as may 
enable you to prosecute to the best advantage the work of 
reclaiming and improving waste land, etc., as well as by section 
1 of chapter 633 of the Acts of 1913, above quoted. But I 
think that as the statutes now stand your Board is not ab- 
solutely precluded from employing prisoners at the Prison 
Camp in suitable lines of industry other than the reclamation 
and improvement of land and preparing material for road 
building at such times as it may be found impracticable to 
carry on this work. 

I note that road building is mentioned in both your ques- 
tions. May I suggest that preparing material for road build- 
ing is the industry named in the statute. 

It is my opinion that the employment of prisoners at the 
Prison Camp is limited to the reclamation and improvement 
of waste places, the cultivation of lands for raising produce 
to be used in public institutions, and preparing material for 
road building, during all the time when outdoor labor is 
practicable, and that your Board may provide for such period 
of time as outdoor work is not practicable such employment 
as is best suited to the welfare of the prisoners. 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 335 



Co-operative Banks — Loans — Reduction of Rate. 

A co-operative bank authorized by its by-laws to dispense with offering its money 
for bids, and in lieu thereof to loan money at not less than 5 per cent., as 
fixed by its directors, may reduce the rate of interest to any rate not less 
than 5 per cent, to a borrower who applied for and received a loan at a rate 
fixed by the board of directors when the loan was made. 

You have requested my opinion upon the following ques- xothe 

tlOn '. ~~~ missioner. 



la a case in which a co-operative bank is authorized by its by-laws to 
loan its money at such rate of interest, not less than 5 per cent, per annum, 
as may be fixed from time to time by its directors, in Ueu of offering 
money for bids, may such bank reduce the rate of interest to a borrower 
who applied for and received a loan at the rate so fixed by the board 
of directors when the loan was made, or can the rate be reduced only in 
cases where the bank offers its money for bids? 

St. 1912, c. 623, §§ 19 and 26, provide as follows: — 

Section 19. The funds accumulated, after due allowance for all 
necessary expenses and the payment of shares, shall, at each stated 
monthly meeting, be offered to applicants according to the premium bid 
by them for priority of right to a real estate or share loan, which shall 
consist of a percentage charged on the amount loaned in addition to 
interest, at a rate not less than five per cent per annum, payable in monthly 
instalments. If the corporation so provides in its by-laws, the bid for 
loans shall, instead of a premium, be a rate of annual interest not less 
I than five per cent per annum payable in monthly instalments upon the 
I amount desired. Any such corporation may, when so authorized by its 
by-laws, dispense with the offering of its money for bids, and in lieu 
thereof may loan its money at such rate of interest not less than five per 
! cent per annum or interest and premium as may be fixed, from time to 
time, by the board of directors, in which case the priority of right to a 
loan shall be decided by the priority of the approved applications therefor. 
Such bids or rates shall include the whole interest to be paid and may be 
at any rate not less than five per cent per annum. 

Section 26. If a borrower purchases money at a lower rate than that 
paid by him on an existing loan, secured by a mortgage, for the purpose 
by him declared of reducing the premium or rate of interest upon said 
oan, a new mortgage shall not be required, but an agreement in writing 
or the reduction of said premium or rate of interest, signed by the bor- 



1914 
December 16. 



336 OPINIONS OF THE ATTORNEY-GENERAL. 

rower and the treasurer of the bank, with the written approval of the 
president, shall be valid, and shall not impair or otherwise affect the 
existing mortgage; and thereafter the borrower shall make the monthly- 
payments on the loan in accordance with the terras of said agreement^ 
and the amount of money previously so purchased by him may be resold 
by the bank at the same meeting. 

Your question appears to have been suggested, in part at 
least, by the use of the phrase in the statute, "if a borrower 
purchases money," etc., in section 26, and by the idea that 
one who obtains a loan of money by bidding for it purchases 
the money, and that one who borrows money at a rate of 
interest not less than 5 per cent, fixed by the directors of the 
bank is not one who purchases. 

The answer to your question, then, turns, in part at least, 
upon the scope and meaning of the w^ord "purchase" as used 
in the statute. This word is defined as — 

A term including every mode of acquisition of estate known to the 
law, except that by which an heir on the death of his ancestor becomes, 
substituted in his place as owner by operation of law. (Bouvier's Law 
Dictionary.) 

It is further defined as — 

Acquisition; the obtaining or procuring of something by effort, labor, 
sacrifice, work, conquest, art, etc., or by the payment of money or its 
equivalent; procurement; acquirement. (Century Dictionary.) 

These definitions indicate that the word "purchase" is not 
confined in its meaning to the process of bidding for some- 
thing, nor to the acquisition of property by the payment of 
money, but to many other and different transactions, and that 
one who procures a loan from a bank at a rate of interest fixed 
by its directors is just as truly a purchaser of a loan as the 
man who procures a loan by bidding for it. 

Your question may have been suggested also, in some part 
at least, by the fact that in those cases in which the bank loans 
its money at a rate fixed by the directors a written application 
is made for the loan; but the man who bids for the loan makes 
application for a loan at the rate named in his bid. 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 337 

It is my opinion that a co-operative bank authorized by its 
by-laws to dispense with offering its money for bids, and in 
lieu thereof to loan money at a rate of interest not less than 
5 per cent., fixed from time to time by its directors, may 
reduce the rate of interest to any rate not less than 5 per cent, 
per annum to a borrower who applied for and received a loan 
at a rate fixed by the board of directors when the loan was 
made, and that all the provisions of section 26 of chapter 623 
of the Acts of 1912 apply to such a transaction. 



Constitutional Law — Cities — Charters — General Act. 

The Legislature has no authority to enact a general municipal corporation act, 

giving cities the right to adopt one of several forms of charters, without 

further special legislative enactment. 
Authority to legislate so as to amend a city charter cannot be granted to a 

city, 
[t is within the power of the Legislature to enact a general act giving cities the 

right to change, alter, consolidate, create or abolish departments without 

special legislation in each particular instance. 
The Legislature has power to authorize a city to choose by vote between two or 

more charters, and may provide that a form of charter once adopted shall 

remain in force for a fixed term of years. 

You have requested my opinion upon the following ques- to the Joint 

Special Com- 

lOnS : • • inittee on City 

Charters. 

1. Can the Legislature enact a general municipal corporation act, the December is. 
•ffect of which will be to permit cities to adopt one of several forms of ~ ' 
barters set forth in such municipal corporation act without further 

pecial enactment on the part of the Legislature? 

2. Can the Legislature in such act or otherwise make provision for 
hanges in existing charters without further special enactment on the 
•art of the Legislature; i.e., leave the charter in the main as heretofore 
ranted, but giving authority to make changes in minor provisions? 

3. Can the Legislature enact a general act which will give to cities 
:ie right to change, alter, consolidate, create or abolish departments as 
jnvenience or exigency demands, without further special legislation in 
ich particular instance? 

4. Can provision be made in the general act above referred to that 
hen a municipality has rejected one of the several forms therein set 



338 OPINIONS OF THE ATTORNEY-GENERAL. 

forth, the same shall not again be available; i.e., voted upon, for a fixed 
term of years thereafter? 

(a) If accepted, that no other form shall be acted upon for a fixed term 
of years thereafter. 

Article IV. of Section I. of Chapter I. of Part the Second of 
the Constitution of Massachusetts provides as follows: — 

Full power and authority are hereby given and granted to the said 
general court, from time to time to make, ordain, and establish, all manner 
of wholesome and reasonable orders, laws, statutes, and ordinances, di- 
rections 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. . . . 

Article 11. of the Amendments to the Constitution pro- 
vides : — 

The general court shall have full power and authority to erect and 
constitute municipal or city governments, in any corporate town or 
towns in this commonwealth, and to grant to the inhabitants thereof 
such powers, privileges, and immunities, not repugnant to the consti- 
tution, as the general court shall deem necessary or expedient for the 
regulation and government thereof, and to prescribe the manner of calling 
and holding public meetings of the inhabitants, in wards or otherwise, 
for the election of officers under the constitution, and the manner of 
returning the votes given at such meetings. Provided, that no such 
government shall be erected or constituted in any town not containing 
twelve thousand inhabitants, nor unless it be with the consent, and on 
the application of a majority of the inhabitants of such town, present 
and voting thereon, pursuant to a vote at a meeting duly warned and 
holden for that purpose. And provided, also, that all by-laws, made by 
such municipal or city government, shall be subject, at all times, to be 
annulled by the general court. 

Under the constitutional provisions above quoted it is my 
opinion that the special action of the Legislature is necessary 
to the erection and constitution of city governments. Indeed, 
no such government can be erected or constituted in any 
town unless it be with the consent and upon the application 
of a majority of the inhabitants of such town. That is, the 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 339 

inhabitants of a town who desire to have a city government 
instituted in their municipality cannot, in my opinion, be per- 
mitted or authorized to adopt a form of charter and establish 
a city government without first making the application to the 
General Court provided for in Article II. of the Amendments 
to the Constitution; and to establish a city government this 
must be followed by some action of the General Court in ac- 
:;ordance with the provisions of the Constitution for the 
establishment of a city government. It is my opinion, there- 
'ore, that your first question, as it stands, must be answered 
n the negative. It would be possible, however, for the Gen- 
'ral Court to establish two or more standard forms of charter, 
md upon each and every application for a charter or for a 
•hange of charter to enact a special law submitting these 
lifferent forms, or some of them, to the choice by vote of the 
)eople of the municipality concerned. 
Referring to your second question, it is my opinion that the 
uthority to legislate so as to amend its charter cannot be 
;ranted to a city under our present Constitution. 
In response to your third inquiry, such a provision as this 
uestion contemplates may be incorporated in the charter of a 
ity, and might, in my opinion, be incorporated in a general 
ct. It will, of course, occur to you that such an act would 
ave no permanence but would be subject to amendment and 
speal at the pleasure of the Legislature. 
In answer to your fourth inquiry, if the Legislature authorizes 
le people of a city or town to choose by vote between two or 
lore charters, it may, in my opinion, provide that the rejected 
)rm or forms shall not again be submitted to the people of the 
ty wherein the rejection has taken place, nor be voted upon 
)r a fixed term of years after such rejection; and that a form 
charter once accepted and adopted shall remain in force for a 
^ed term of years after such acceptance or adoption. 



340 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the 

State Board of 

Education. 

1914 
December 24. 



Schools — Domicil of Parent — Tuition. 

The domicil of the parent of a minor attending school is the domicil of the minor, 
and the city of such domicil is responsible for the tuition of the child. 

In your letter of recent date you state the following case : — 

It appears that a child resides during the spring and fall months in a 
town adjoining a city in which the father of the child is a legal voter. 
The child attends school in the city. Said city claims that the town in 
which the child resides should pay tuition during the time of such resi- 
dence. The town claims that the city, by virtue of the fact that the 
father of the child is a legal voter therein, is responsible for all the schooling 
of the child. 

You ask to be advised as to the solution of the question 
whether the city or the town is right in the claims above 
stated. 

I assume that the domicil of the father is, for all purposes, 
in the city in which he is a voter. It is a well-established rule 
of law that the domicil of a child follows that of the father. 
An infant, being non sui juris, is incapable of fixing his domi- 
cil, which therefore, during his minority, follows that of the 
father, provided such child is legitimate, and the mere separa- 
tion of the parents does not affect the application of the rule. 
14 Cyc, pp. 843-844. 

By application of this rule it follows that since the father of 
the child has his domicil in the city, the city is responsible for 
the schooling of the child. 



To the 

Teachers' Re- 
tirement Board. 

1914 
December 31. 



Teachers' Retirement Board — Substitute Teachers. 

Only such substitute teachers as are duly elected and regularly employed on a 
salary are entitled to participate in the teachers' retirement fund, under 
St. 1913, c. 832. 

I am in receipt of your letter requesting an opinion as to 
whether substitute service performed by former teachers in the 
public schools is service within the meaning of paragraph ^ 
of section 6 of chapter 832 of the Acts of 1913. 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 341 

The definition of "teacher" in the act might be broad 
enough to include call substitutes. St. 1913, c. 832, § 1, par. 4. 

But the act must be taken as a whole. It contemplates 
that the members shall be on a regular salary and shall serve 
throughout the school year. This is clearly shown by the 
following proviso : — 

When the total sum of assessments on the salary of any member at 
the rate established by the retirement board would amount to more 
than one hundred doUars or less than thirty-five doUars for any school 
year, such member shall in Ueu of assessments at the regular rate be 
assessed one hundred doUars a year or thirty-five dollars a year as the 
case may be, payable in equal instalments to be assessed for the number 
of months during which the schools of the community in which such 
member is emploj^ed are commonly in session. (St. 1913, c. 832, § 5, 
par. 2.) 

Even construing the definition by itself, the word "em- 
ployed" may mean regularly employed. The United States 
Supreme Court has ruled : — 

The terms "officers" and "employees" both, alike, refer to those in 
j regular and continual service. Within the ordinary acceptation of the 
i terms, one who is engaged to render service in a particular transaction 
I is neither an officer nor an employee. They imply continuity of service, 

and exclude those employed for a special and single transaction. {Louis- 

lille R.R. Co. V. Wilson, 138 U. S. 501, 505.) 

This interpretation is strengthened by the rest of the act 

before us. The act would be unworkable if it applied to call 

substitutes. For if it so applied it would be impossible to 

Iraw a line at any one point between those who were called 

'or constant service and those who were called for only one 

lay. The absurdity of applying the minimum assessment of 

^35 to a substitute who works only one day is apparent. 

'Equally apparent is the absurdity of placing a substitute who 

erves a few days a year for thirty years on a par with a 

eacher who serves steadily for thirty years, with respect to 

jeceiving an annuity of $300 under section 6, paragraph 5. 

t is therefore my opinion that the act applies only to teachers 

11 regular salaried positions. 



342 



OPINIONS OF THE ATTORNEY-GENERAL. 



You say with respect to call substitutes — 

None of these teachers has been elected as permanent substitute at a 
guaranteed salary by the school committees, and the amount of com- 
pensation is entirely on a per diem basis for actual day's service rendered. 

Teachers of this class cannot, in my opinion, be regarded as 
eligible to participation in the benefits of the retirement system. 
I understand, however, that there are substitute teachers in 
the Commonwealth who are duly elected as such by the 
school boards, whose entire time throughout the school year 
is devoted to teaching and who are paid a regular salary. 
Substitute teachers of the last-named class are, in my opinion, 
entitled to participate in the retirement system and may, of 
course, properly become members of the retirement association. 
This ruling makes the act apply, as above stated, only to 
teachers in regular salaried positions. 



To the 
Trustees of 
Hospitals for 
Consumptives. 

1915 
January 5. 



Public Institutions — Water Pipes — Highways — 
Grant by Selectmen. 

Selectmen of towns may authorize the laying of water pipes in streets by trustee.- 
of a public institution. 

You have requested my opinion upon the following ques- 
tion : — 

Is it necessary to have the Legislature authorize the Board of Trustee 
to lay a water pipe in highways in Lakeville, or would it be sufficient fo 
the board of selectmen to grant this franchise? 

Chapter 459 of the Acts of 1903 provides as follows: — 

Section 1. The mayor and aldermen of a city and the selectmen of 
town may, upon terms and conditions prescribed by them, authoriz 
persons and corporations to lay pipes and conduits for the conveyanc 
of water under any public way in such city or town: provided, howeve' 
that nothing in this act shall authorize persons or corporations to suppl 
water to persons or corporations other than themselves, in any city ( 
town in which a municipal water plant is established, except with tl 
consent of the board or authority having charge of such water plant i 
such city or town. 



I 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 343 

R, L., c. 8, § '), cl. 16, provides that the word "person" 
may extend and be applied to bodies politic and corporate. 

It is my opinion that the authorization of the board of 
selectmen would be entirel;\^ sufficient. If, however, the select- 
men will not grant you the authority needed, I would suggest 
that you apply to the Legislature for such authority as you 
mav need. 



Cities and Towns — School Departments — Manual 
Training Schools — Liability for Accidents. 

Cities and towns conducting manual training schools in compliance with law and 
deriving no pecuniary benefit therefrom are not liable in damages for in- 
juries resulting to pupils from accidents, nor are school officers so liable 
except for their own wrongful conduct or negligence. 

You have requested my opinion upon the following ques- Tothe 

. . State Board of 

tlOn: Education. 

1915 

Is either the school department of a city or the city itself Uable in *^^^ 
damages for personal injury to pupils resulting from accidents in the 
manual training work in the schools? 

By the provisions of section 9 of chapter 42 of the Revised 
Laws "the teaching of manual training" as a part of the ele- 
mentary and high school system is required by law in all 
towns and cities having a population of 20,000 or more. It 
will be seen that it is not optional with a city or town having 
the required population to establish a department of manual 
training or not, as it may see fit. The law is mandatorj\ 
Manual training must be made a part of the educational sys- 
tem of every such city or town. The city or town derives no 
pecuniary profit or benefit from the manual training depart- 
ment. The school officers are not the agents of the city but 
are public officers whose duty it is to perform and discharge 
certain functions as required by law. A municipality is not 
liable in damages for the acts of its public officers. 

The rule relating to the subject-matter of your question has 
been stated in the following language : — 



344 



OPINIONS OF THE ATTORNEY-GENERAL. 



Whether the neglected duty involves a liabiUty depends, in the judg- 
ment of the court, upon the nature of the duty; that is to say, whether 
it is imposed for the pecuniary profit or other special advantage of the 
city, — if so, the city is liable; or whether it is a duty imposed upon the 
city as a pubUe instrumentality of the State, without pecuniary or other 
special advantage to the city, — if so, the city is not liable. (DiUon on 
Municipal Corporations, Vol. IV., § 1643.) 

See, also. Hill v. Boston, 122 Mass. 344. 

The city or town conducting a manual training school in 
strict compliance with the requirements of the law and deriv- 
ing no pecuniary benefit therefrom wall not, in my opinion, be 
liable in damages for injuries resulting to pupils from accidents 
in such department; nor will the school oflicers be liable except 
for injuries caused by their own wrongful act or negligence. 



To the State 
Board of Labor 
and Industries. 

1915 
January 6. 



Labor — Right to fine Employees for Damages. 

Except in certain cases prohibited by statute, employers of labor may, where pro- 
vision is made in the contract of employment, lawfully withhold money, 
due employees as wages, to cover damage to the employer caused by the 
negligent or wrongful act of the employee. 

You have requested my opinion upon the following ques- 
tion : — 

Have employers of labor the right to fine employees for damage done 
by them, as in the breaking of dishes, spoiling goods in process of manu- 
facture or damage to machinery? 

A servant is directly liable to his master for any damage 
occasioned by his negligence or misconduct in connection with 
his work, whether such damage be directly to the property of 
the master or arises from compensation which he has been 
obliged to make to third persons for injuries sustained by 
them through the negligence or misconduct of the servant. 
26 Cyc, 1023. 

In a case in which the plaintiff sued a subcontractor on 
work done for the plaintiff, charging the subcontractor witli 
negligence, the Supreme Judicial Court said: — 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 345 

It is immaterial whether the defendants are to be regarded as the 
servants and agents of the plaintiff or as contractors under the principal 
contractor, which the defendants contend was the case. In either in- 
stance they owed the plaintiff the duty of not injuring his property by 
their neglect or wrongful acts. If they were the plaintiff's servants and 
their negUgent actions caused injury to his building, they would be hable 
to him for the damage. (Bacon's Abridgement, Master and Servant, M.) 

Smith, Master and Servant, 4th ed. 134, and cases cited; 
White V. Phillipston, 10 Met. 108; Walcott v. Swampscott, 
1 Allen, 101; Bickford v. Richards, 154 Mass. 163. 

If, then, dishes are broken or goods spoiled in process of 
manufacturing or damage is done to machinery through the 
negligence or misconduct of the emploj^ee, the employee is 
directly liable to the employer for the damage so caused. 
There seems to be no doubt that where it is made a part of 
the contract of employment that such damages shall be ad- 
justed and taken out of the wages of the employee, the con- 
tract is lawful and may be enforced. Gallagher v. Hathaivay 
Mfg. Co., 172 Mass. 230. 

There is a statute in regard to fines imposed on weavers 
which need not be discussed here, but I have found no statute 
in regard to fines imposed by employers in any other industry. 

It is not to be understood that fines may be imposed arbi- 
trarily or at the mere whim or caprice of the employer, but 
for a just cause and to a fair and just amount. In cases in 
which the contract of employment provides for it, the em- 
ployer may, in my opinion, lawfully withhold money due the 
smployee as wages to cover damages to the employer caused 
by the negligent or wrongful act of the employee. 



346 OPINIONS OF THE ATTORNEY-GENERAL. 



Cities and Towns — Public Domain — Sales. 

Land acquired for a public domain under St. 1914, c. 564, cannot be sold or used 
for any purpose not specified in the act without the authority of the 
Legislature. 

Land acquired by a city or town for a public domain, and placed under the man- 
agement of the State Forester, must be maintained at the expense of such 
city or town. 

st°at^Forester ^°^ ^^^ whether Under the provisions of section 1 of chapter 
Januar%. •'^64 of the Acts of 1914 a town or city which has taken land for 
a public domain has the right to dispose of the same by sale 
or by making use of it for purposes other than the culture of 
forest trees; and second, in case the State Forester is given 
supervision of such public domain by the town, under section 2 
of said chapter, whether the cost of control and management 
should be paid by the town or by the Forester's department. 

The provisions of the first two sections of said act, so far as 
material, are as follows: — 

Section 1. A town ... or a city . . . may take or purchase land 
within their limits, which shall be a public domain, and may appropriate 
money and accept gifts of money and land therefor; . . . Such public 
domain shall be devoted to the culture of forest trees, or to the preserva- 
tion of the water supply of such city or town and the title thereto shall 
vest in the city or town in which it lies. 

Section 2. The city or town forester in each city or town . . . shall 
have the management and charge of all such public domain in that city 
or town . . . But a town ... or a city . . . may place all such public 
domain within its limits under the general supervision and control of the 
state forester, who shall thereupon, upon notification thereof, make 
regulations for the care and use of such public domain and for the planting 
and cultivating of trees therein, and the city or town forester in such case 
and his keepers, under the supervision and direction of the state forester, 
shall be charged with the duty of enforcing all such regulations and of 
performing such labor therein as may be necessary for the care and main- 
tenance thereof. . . . 

Lands acquired under this act cannot, in my opinion, bf 
sold by the town or used for any purpose other than the cultun 
of forest trees or the preservation of the water supply of th( 
city or town making the taking, without first obtaining per 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 347 

mission or authority from the Legislature to make the sale or 
to change the use. 

In response to your second question I have to say that the 
only difference in the regulation of such public domains as is 
contemplated by placing them under the supervision and con- 
trol of the State Forester in accordance with the provisions of 
section 2, above quoted, is to secure the advantage of a trained 
forester over the planting and cultivation of trees. The public 
domains still remain the property of the city or town, and all 
expenses must be defrayed by the city or town even though 
supervision and control have been vested in the State Forester. 



Employment of Labor — Building Laws. 

A building containing two or more establishments, each employing less than ten 
persons but in the aggregate ten or more persons, comes within the pro- 
visions of St. 1913, c. 655, §§ 15 and 20. 

You have requested my opinion upon the following ques- To the Chief 

. of the Massa- 

tlOni chusetts 

District Police. 

Would a building containing two or more establishments, each em- , ^^'^ 

ploying less than ten persons but in the aggregate ten or more persons, 

come within the provisions of sections 15 and 20 of chapter 655 of the Acts 
of 1913? 

You have quoted from the two sections the language most 
directly relating to your inquiry, as follows: — 

Section 15. No building which is designed to be used, in whole or 
in part, and no building in which alteration shall be made for the pur- 
pose of using it, or continuing its use, in whole or in part, as a public 
building, public or private institution, schoolhouse, church, theatre, 
special hall, public hall, miscellaneous hall, place of assemblage or place 
of pubUc resort, or as a factory, workshop or mercantile or other estab- 
lishment and to have accommodations for ten or more employees. . . . 

Section 20. A building which is used, in whole or in part, as a public 
building, public or private institution, schoolhouse, church, theatre, special 
hall, public hall, miscellaneous hall, place of assemblage or place of public 
resort, and a building in which ten or more persons are employed in a 
factory, workshop, mercantile or other estabhshment. . . . 



348 OPINIONS OF THE ATTORNEY-GENERAL. 

In each of the foregoing quotations from the statute the 
clause "a factory, workshop, mercantile or other establish- 
ment" might be regarded as indicating one shop or factory, 
etc., as the object at which the law is aimed, but the real pur- 
pose of the statute is the preservation of life and safety. The 
mischief aimed at is the crowding of people together, not 
necessarily in a single workshop but in a single building, under 
such circumstances as to make their condition one of danger 
in case of fire unless proper safeguards are adopted. To say 
that though there are a hundred workmen employed in a 
building, yet so long as not more than nine are employed in 
any one shop or factory the building is not subject to the 
inspection laws of the Commonwealth, would be to defeat the 
purpose of those laws in most important particulars. The 
clause above quoted was undoubtedly intended to, and does, 
relate to the building in which the factory, workshop or other 
place of employment may be located, and whenever ten or 
more persons are employed in a building, whether employed 
in one shop or factory or divided between two or more places 
within the building, that building is subject to the provisions 
of the two sections to which you refer. 



Loan Agencies — Expenses of Loans — Interest. 

Under St. 1911, c. 727, actual expenses actually incurred by the lender may be 
collected of a debtor. 

Although the addition of actual expenses to the interest collected by a loan agency 
from a debtor would make the cost to the borrower more than 3 per cent, per 
month, the transaction is lawful under St. 1911, c. 727. 

Totjie You have requested my opinion upon the following ques- 

Loan Agencies. fi'nn«* 

1915 iiun^. 

' (1) Under the Acts of 1911, chapter 727, and amendments thereto, 

can the supervisor of loan agencies require by regulation the borrower 
in negotiating a loan of less than $300 to pay any expense incurred by 
the lender connected with the making of such loan? 

(2) If such expense may be demanded by regulation can the amount 
of such expense, together with the interest placed on the loan, exceed the 
sum of 3 per cent, a month? 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 349 

The authority of the Supervisor of Loan Agencies in regard 
to making regulations is contained in section 4 of chapter 727 
of the Acts of 1911, which provides as follows: — 

The supervisor shall, from time to time, establish regulations respecting 
the granting of licenses and the business carried on bj^ the licensees, and 
by loan companies and associations established by special charter. He 
shall either personally, or by such assistants as he may designate, at least 
once a year, and oftener if he deems it necessary, investigate the affairs 
of such Ucensees, companies and associations and for that purpose shall 
have free access to the vaults, books and papers thereof, and shall ascertain 
the condition of the business, and whether it has been transacted in 
compUance with the provisions of law and the regulations made hereunder. 
The supervisor may, if he deems it expedient, cause an examination of the 
said books and business to be made by an accountant whom he may 
select, and the cost of any such examination shall be paid by the person, 
corporation or association whose books are so examined. 

His authority to establish rates of interest rests in the pro- 
visions of section 7 of the same chapter, which provides as 
follows: — 

The supervisor shall establish the rate of interest to be collected, and 
in fixing said rate shall have due regard to the amount of the loan and 
the nature of the security and the time for which the loan is made; but 
the rate shall, in no case, exceed three per cent a month; and no licensee 
or company or association to which this act appUes, shall charge or receive 
upon any loan a greater rate of interest than that fixed by the supervisor. 

The statute does not in terms declare that any expense charge 
shall or may be made by the lender and collected from the 
borrower; neither does the statute in terms prohibit such a 
charge. 

Statutes of the character of the one under consideration are 
Framed and enacted with relation to some existing business, 
md this is true of chapter 727 of the Acts of 1911. It is a 
natter of very common knowledge that for many years prior 

the passage of this statute, in the business of making small 
oans it was the custom of individuals and concerns to make 

1 charge against borrowers to cover alleged expenses, and while 
his statute does not contain express provision allowing such 



350 OPINIONS OF THE ATTORNEY-GENERAL. 

charges, it does contain provisions in which mention is made of 
expenses, in such terms as, in my opinion, to raise a fair 
impHcation that it was the intention of the Legislature to 
leave the law in such condition that actual expenses incurred 
in making small loans might still be charged to and collected 
from the borrower. 

Section 3 of the statute, as amended, contains the following 
provisions : — 

In prosecutions under this act, the amount to be paid upon any loan 
of three hundred dollars or less for interest or expenses shall include all 
sums paid or to be paid by or on behalf of the borrower for interest, 
brokerage, recording fees, commissions, services, extension of loan, for- 
bearance to enforce payment, and all other sums charged against or 
paid or to be paid by the borrower for making or securing or directly or 
indirectly relating to the loan, and shall include all such sums when paid 
by or on behalf of or charged against the borrower for or on account of 
making or securing the loan, directly or indirectly, to or by any person, 
partnership, corporation, or association other than the lender, if such 
payment or charge was known to the lender at the time of making the 
loan, or inight have been ascertained by reasonable inquiry. Any 
person, partnership, corporation or association directly or indirectly 
engaging in the business of negotiating, arranging, aiding or assisting 
the borrower or lender in procuring or making loans of three hundred 
dollars or less for which the amount paid or to be paid for interest and 
e.xpenses, including all amounts paid or to be paid to any other party 
therefor, exceeds in the aggregate an amount equivalent to twelve per 
cent per annum, whether such loans are actually made by such person, 
partnership, corporation or association, or by another party or parties, 
shall be deemed to be engaged in the business of making small loans 
and shall be subject to the provisions of this act. 

Section 10, as amended, provides as follows: — 

Any person, partnership, corporation or association violating any 
provision of this act or any regulation made hereunder or any rule or 
order made by the supervisor, shall be subject to a fine of not more than 
five hundred dollars, and the license may be suspended or revoked by 
the supervisor. Any loan upon which a greater rate of interest or ex- 
pense is charged or received, than is allowed by this act and the regu- 
lations made hereunder, may be declared void by the supreme judicial 
court or the superior court in equity upon petition by the person to 
whom the loan was made. 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 351 

The words "interest" and "expenses" as they occur in this 
chapter are evidently not intended to cover one and the same 
thing. The word "interest" is defined by authorities as the 
sum paid for the use of money, and as used in this chapter 
means nothing else. The word "expense" is defined as — 

A laying out or expending; the disbursing of money; employment 
and consumption, as of time or labor. (Centurj' Dictionary.) 

As used in this statute the word means expense of this kind 
on the part of the lender in and about the making of a loan. 
In construing statutes we are bound by the rule that — 

Words and phrases shall be construed according to the common and 
approved usage of the language. (R. L., c. 8, § 4, cl. 3rd.) 

The application of this rule to the construction of this 
statute makes it apparent that the words "interest" and 
"expenses" mean two different things. "Expenses" as the 
word is here used means actual expense, — expense that is 
actually and necessarily involved in the transaction of making 
the loan and is incurred and charged in good faith. It does 
I not mean an arbitrary charge to be made whether actual 
expense is incurred or not, nor can this term be lawfully used 
:o cover a charge and collection of a sum that is beyond the 
ictual expense incurred or to cover a charge where there was 
10 actual expense. Authority to make regulations does not 
ponfer authority to regulate in contravention of the meaning 
md intention of the statute itself. 

If by your first question you intended to ask whether the 
Supervisor of Loan Agencies has authority to impose upon the 
•orrower of a sum less than three hundred dollars the pay- 
ment of a sum of money as expense in making the loan, vvith- 
ut regard to the question whether any expense has been in- 
urred by the lender, it is my opinion that the supervisor has 
ot that authority. It is my opinion that under the authority 
t section 4 above quoted the supervisor has no authority to 
'quire that any sum whatever be paid by the borrower as a 



352 



OPINIONS OF THE ATTORNEY-GENERAL. 



charge for the expense of making the loan, but has authority 
to regulate charges made by the lender for expenses. He has 
authority to prevent the abuse of the opportunity to make 
charges of that kind, and as it is not possible for him to 
examine the details and circumstances attendant upon the 
making of each and every loan, he may make regulations, not 
requiring the payment of a stated sum as expenses, but requir- 
ing that only actual expenses necessarily^ incurred in the making 
of the loan be charged by the lender. 

In response to your second question, in cases where only 
expenses actually and necessarily incurred in making the loan 
are charged to the borrower, even though the expenses together 
with interest on the loan make the cost to the borrower more 
than 3 per cent, a month, the transaction is, in my opinion, 
lawful. 



To the 
State Board 
of Charity. 

1915 
January 18. 



Charitable Corporations — Educational Institutions — 

Returns. 

Although an institution for the education of the deaf may be essentially an edu- 
cational institution, it may also be a charitable institution within the meaning 
of St. 1903, c. 402, and thereby be required to make an annual report to the 
State Board of Charity. 

You have requested my opinion upon the following ques- 
tion : — 

Under the provisions of chapter 402 of the Acts of 1903 is the Clarke 
School for the Deaf required to make an annual report to the State 
Board of Charity? 



Chapter 402 of the Acts of 1903 provides as follows: — 

A charitable corporation whose personal property is exempt from 
taxation under the provisions of clause three of section five of chapter 
twelve shall annually, on or before the first day of November, make to 
the state board of charity a written or printed report for its last finan- 
cial year, showing its property, its receipts and expenditures, the whole 
number and the average number of its beneficiaries and such other in- 
formation as the board may require. 



I 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 353 

Corporatiojis whose personal property is exempt from taxa- 
tion are designated in Revised Laws, chapter 12, section 5, 
clause 3rd, as follows: — 

The personal property of literars^, benevolent, charitable and scientific 
institutions and of temperance societies incorporated within this common- , 
wealth, the real estate owned and occupied by them or their officers for 
the purposes for which they are incorporated, and real estate purchased 
by them with the purpose of removal thereto, until such removal, but not 
for more than two years after such iDurchase. Such real or personal 
property shall not be exempt if any of the income or profits of the business 
of such corporation is divided among the stockliolders or members, or is 
used or appropriated for other than Hterary, educational, benevolent, 
charitable, scientific or religious purposes, nor shall it be exempt for any 
year in which such corporation wilfully omits to bring in to the assessors 
the list and statement required by section forty-one. 

Chapter 125 of the Revised Laws deals with the formation 
of corporations for charitable and other purposes. Section 2 
provides in part: — 

Such corporation may be formed for any educational, charitable, 
benevolent or religious purpose; for the prosecution of any antiquarian, 
historical, literary, scientific, medical, artistic, monumental or musical 
purpose; for establishing and maintaining libraries; for supporting any 
■ missionary enterprise having for its object the dissemination of religious 
or educational instruction in foreign countries; for promoting temperance 
or morality in this commonwealth. . . . 

In connection with the general subject I submit section 19 
)f chapter 39 of the Revised Laws, which reads as follows: — 

The governor may, upon the request of the parents or guardians and 
[vith the approval of the board, send such deaf persons as he considers 
)roper subjects for education, for a term not exceeding ten years, but, 
ipon like request and with like approval, he may continue for a longer 
erm the instruction of meritorious pupils recommended by the principal 
T other chief officer of the school of which they are members, to the 
American School, at Hartford, for the Deaf, in the state of Connecticut, 
the Clarke School for the Deaf at Northampton, to the Horace Mann 
chool at Boston, or to any other school for the deaf in the common- 
'ealth, as the parents or guardians may prefer; and with the approval 
f the board he may, at the expense of the commonwealth, make such 



354 OPINIONS OF THE ATTORNEY-GENERAL. 

provision for the care and education of children who are both deaf and 
blind as he may deem expedient. No distinction shall be made on ac- 
count of the wealth or poverty of such children or their parents. No 
such pupil shall be withdrawn from such institutions or schools except 
T\ith the consent of the authorities thereof or of the governor; and the 
expenses of the instruction and support of such pupils in such institu- 
tions or schools, including their necessary travelUng expenses, whether 
daily or otherwise, shall be paid by the commonwealth; but the parents 
or guardians of such children may pay the whole or any part of such 
expense. 

If there is any difficulty in reaching a prompt conclusion in 
this case it is due to the failure of the statutes to distinguish 
between purely charitable and purely educational institutions. 
In the broad sense an institution of learning may be said to be 
a charitable institution, and gifts to colleges or similar cor- 
porations are upheld as charitable gifts. This is true even 
though such institutions make no pretence of being charitable 
in the narrow sense, and though their doors open to admit 
rich and poor alike. 

It is not confined to mere almsgiving or the rehef of poverty and dis- 
tress, but has a wider signification, which embraces the improvement and 
promotion of the happiness of man. (Molly Varnum Chapter, D. A. R. 
V. Lowell, 204 Mass. 487.) 

Gifts to colleges and other educational institutions, for the advance- 
ment of learning or to aid necessitous students in procuring an educa- 
tion, are charitable even if the donee may derive revenue from other in- 
vestments and from students who are able to pay. (Mount Herman 
Boys' School v. Gill, 145 Mass. 139.) 

In the case of Neiv England Sanitarium \. Stoneham, 205 
Mass. 335, at 341, the court says: — 

It may be conceded that a trust for the exclusive benefit of the least 
wealthy of a well-to-do or prosperous class could not be sustained as a 
charity under the St. of 43 Eliz. c. 4. Attorney-General v. Northumber- 
land, L. R. 7 Ch. D. 745. But the controlling purpose maj' be none the 
less charitable, even if those who need no pecuniary aid are either directly 
or indirectly benefited. A hospital established for the free treatment 
of poor patients may receive pajonents from rich persons who are per- 
mitted to avail themselves of its benefits. Every charity created for the 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 355 

gratuitous treatment and relief of disease, or the physical infirmities of 
the indigent, or other purposes enumerated in this statute, or if not 
enumerated, which are held to come within its spirit and intendment, in 
a large sense helps and aids the community, without regard to the social 
rank or pecuniary condition of its members. 

In the Century Dictionary a "charitable institution" is de- 
fined as, "A foundation for the relief of a certain cl-ass of per- 
sons by alms, education, or care, especially a hospital." Again: 
"A gift in trust for promoting the welfare of the community or 
of mankind at large, or some indefinite part of it, as an endow- 
ment for a public hospital, school, church or library. ..." 

Charity, in its legal sense, comprises four principal divisions, — trusts 
for the relief of poverty, trusts for the advancement of education, trusts 
for the advancement of religion, and trusts for other purposes beneficial to 
the. community not falling under any of the preceding heads. (Bouvier's 
Law Dictionary, "Charitable Uses, Charities.") 

Before the Statute of 43 Elizabeth, chapter 4, money given 
for the education of youth and the support of schools was 
recognized in England as given for a charitable use. Since this 
statute, educational institutions furnishing tuition free of charge 
or for a smaller sum than actual cost have been declared in a 
certain sense charitable trusts. Chief Justice Shaw said: — 

That a gift designed to promote the public good, by the encouragement 
of learning, science and the useful arts, without any particular reference 
to the poor, is regarded as a charity, is settled by a series of judicial 
decisions, and regarded as the settled practice of a court of equitj^ 
{American Academy of Arts and Sciences v. Harvard College, 12 Gray, 582.) 

Other courts have entertained similar views. 

Nor has it ever been supposed in this country, that an institution 
'Stablished for the purposes of education is not a charity within the 
neaning of the law, because it sheds its blessings, like the dews of heaven, 
ipon the rich as well as the poor. {Price v. Maxwell, 28 Pa. 23.) 

It has been asserted, however, that there is a recognized dis- 
inction between strictly educational institutions and chari- 



356 OPINIONS OF THE ATTORNEY-GENERAL. 

table institutions. In a minority opinion in State v. Board of 
Control, 85 Minn. 189, the court said: — 

It is, however, now the settled law in all jurisdictions in which the 
statute of Elizabeth is in force that a gift or devise for the advancement 
of education, even if it be made without reference to the poor, is a charity, 
within the law of charitable uses. It was necessary for courts of equity 
to so define "charity" in order to sustain such gifts or devises, and not 
permit them to lapse. The cause justified the definition. But the 
broad, common-sense, and popular distinction between "education" and 
"charity" has always been recognized by the courts of this country, 
except in cases involving the doctrine of charitable uses, or the taxation 
of property held for such uses. It is true that the statute of Elizabeth 
expressly declared that the maintenance of schools of learning and free 
schools was a charity; but the fact is not significant, for at that time 
there were not, and never had been, any free schools in England, except 
those maintained by the charity of the church or other organizations. 
It was not until after the commencement of the reign of Queen Victoria 
that the government began seriously to recognize that it was any part 
of the duty of the State to provide for the education of all of her citizens. 
Prior to that time the cause of education was in fact, as well as in law, a 
charity. 

In the same opinion the justice said: — 

I cannot believe that the Legislature, in adopting the title of the statute 
in question, intended to reject the usual and popular meaning of the word 
"charitable," and substitute therefor the ancient and moss-covered defi- 
nition of "charity" which the chancery court invented centuries ago 
for the purpose of sustaining charitable uses, and thereby classify the 
State normal schools and the State university as charitable institutions. 
. . . Now, as conclusively demonstrated, . . . the constitutional, legis- 
lative, executive, and popular classification of such institutions is, and 
always has been, in this State, based upon the popular and common- 
sense distinction between education and charity. In such classification 
our institutions of learning are classified by themselves as "educational 
institutions," and our institutions for defectives are also separately 
classified as "charitable institutions." 

While the court in the above case divided on the main point 
in issue, there seems to have been no division on the point 
involved in the question here. On page 192 the minority 
opinion further states: — 



I 



THOMAS J. BOYNTON, ATTORNEY-GENERAL. 357 

We need not cite definitions from the lexicographers to show what, in 
the present age, are generally understood to be "charitable" and what 
"educational" institutions, but it may be stated that the former are 
usually defined as founded "for the relief of certain classes of persons by 
alms, education, or care; especially a hospital;" as "institutions estab- 
lished for the help of the needy;" as "pertaining to charity; springing 
from or intended for charity;" wliile the latter are institutions founded 
for the express purpose of instructing the youth of our land along mental 
and physical lines, such instruction not being granted as a bounty, but as 
of right. 

If we were compelled solely to rely upon these definitions, they would 
be quite sufficient to justify the assertion that our educational institu- 
tions are not charitable, within any of the definitions, but the paramount 
question here is an entirely different one. We are called upon to ascer- 
tain what should be understood when these words are used in the stat- 
utory jurisprudence of this State; and, as a consequence, what would 
their use by the Legislature suggest or convey to the reader of such a 
title. To what institutions have these terms been apphed, and how have 
they been used? An examination for this purpose should lead to but 
one conclusion, in my judgment, namely, that the words "charitable 
institutions" mean institutions, supported in whole or in part at the 
expense of the State, for the relief of the indigent, the defective, and the 
unfortunate, — institutions in wliich the State dispenses and administers 
charit}^ to those dependent upon it, and the inmates of which (victims 
of misfortune) are the beneficiaries and recipients of charity. 

In People v. New York, IGl N. Y. 233, it was contended 
that as the defendant corporation had been given legal capacity 
to take and administer gifts and bequests under the Statute 
of 43 Elizabeth, and under the general rules applicable to 

trusts, it was a charitable institution. To this claim the court 

1 

answered : — 

It is said that this corporation, in order to promote the objects of its 
incorporation, has been given legal capacity to take and administer 
5tfts and bequests that would l)e called charitable under the statute of 
Klizabeth and under general rules of law applicable to trusts, and all 
that is quite true. But it is an error to conclude that a corporation must 
lecessarily be of a charitable nature because it has capacity to take and 
idminister such gifts. A very large class of corporations may do that, 
•vithout affording the slightest ground for an argument that thej' are or 
uust be charitable institutions or corporations. Colleges, academies 



358 OPINIONS OF THE ATTORNEY-GENERAL. 

and nearh^ all institutions of learning or of a literary character, and 
even cities, villages and other municipal corporations, may take and 
administer such gifts; but that fact cannot in the least affect their true 
character, or convert them into charitable institutions. Again, it was 
said: "It is only necessary to add that if we were to hold that every 
corporation with capacity to take and administer such a gift or bequest 
is a charitable institution within the meaning of the Constitution and 
•the statute, we would have to include a great number of corporations 
whose objects are entirely foreign to any work of charity, even in the 
broadest sense. Capacity to take a bequest proceeding from charitable 
motives is no real test of the class to which the corporation taking it 
belongs." 

A similar question to the one at issue arose in People v. 
Fitch, 154 N. Y. 14. In this case it was decided that an insti- 
tution for the blind was such a charitable corporation as would 
come under the supervision of the State Board of Charities. 
At page 26 the court said : — 

The relator is, doubtless, to an extent, an educational institution. 
But that fact alone does not justify the conclusion that it is not a chari- 
table institution within the meaning and intent of the Constitution and 
statutes. An institution may be in a sense educational and at the same 
time be wholly or partly charitable, as the education and maintenance 
of indigent pupils, while being educated, may be the subject of charity as 
well as support alone. An institution may be both educational and 
charitable, and if so, it falls within the provisions of the Constitution 
and statutes, as it is to be observed that the provisions are that the board 
of charities shall visit and inspect all institutions which are of a charitable 
character or design, and, hence, to fall within that description, it is not 
necessary that the institution shall be wholly charitable. It need only 
be an institution which is whoU}- or partly charitable in its character 
and purpose. 

Nor is the fact that institutions for the instruction of the blind are 
made subject to the visitation of the superintendent of public instruction 
controlling in determining this question. It may be conceded that this 
institution is partiaUj^ educational and subject to the visitation of the 
superintendent of public instruction, and yet by no means follow that it 
is not an institution which is charitable in its character and jDurpose, and, 
therefore, also subject to the visitation of the board of charities, as the 
Constitution provides that the visitation by the board of charities is not 
exclusive of any visitation then provided by law, which would clearly 
include the visitation by the superintendent of public instruction. 






THOMAS J. BOYNTON, ATTORNEY-GENERAL. 359 

Another case in point is that of Asylum v. Phoenix Bank, 
4 Conn. 172. Here a corporation had for its sole object the 
education and instruction of the deaf and dumb, which sup- 
ported and instructed indigent persons of that class gratui- 
tously, received a pecuniary compensation from pupils of ability 
to make it, derived its means of dispensing charity from the 
donations of individuals and of the public, and applied its 
funds exclusively to the general object of its institution. The 
court said, at pages J77-8: — • 

The American Asj-lum may, with the strictest propriety, be defined, 
an incorporated school for charitable purposes. It is a school, which is a 
generic term, denoting an institution for instruction or education; and 
from the nature of its object, is a private incorporation. Its objects and 
operations are all of a private character; and the donations of States to 
aid in effectuating them, do not, in the minutest degree, change its nature. 
The institution is exclusively "for charitable purposes;" its sole object 
being to pour instruction into the minds of the deaf and dumb; to elevate 
them from the lowest degradation of intellect to the dignitj^ of inteUigent, 
and fit them to become moral and religious beings; to open their bUnd 
eyes, and unstop their deaf ears; and to accomphsh this, through the 
means of funds, derived from the gratuities of the benevolent. A purpose 
so honorable and noble, and free from the dross of self-interest, brings 
the American Asj'lum pecuUarly within the spirit, as it is obviously 
within the letter, of the law, which authorizes a compulsory subscription 
of the stock of the Phoenix Bank. The Asylum, in no sense of the ex- 
pression, is a money-making institution. AU its funds are necessarily 
appUcable to the charitable object of educating the deaf and dumb; and 
this is done gratuitousl}^ except so far as the power of doing is enlarged, 
by the sums paid for instruction, by the rich and able. By this operation, 
, the funds of the institution are not absorbed, but augmented; the chari- 
! table object of the Asylum is not diminished, but promoted; and the 
lature of it is not changed, but pursued. 

It is my opinion that the Clarke School for the Deaf is a 
charitable institution wathin the meaning of chapter 402 of the 
\cts of 1903, and that a report should be made annually to 
:he State Board of Charity. The Clarke School was incor- 
porated for the purpose of benefiting a class of defectives which 
s most seriously handicapped in its struggle for existence 
ind in its participation in the blessings of life. Such was 



360 OPINIONS OF THE ATTORNEY-GENERAL. 

the noble end of the founders of the school, and these purposes 
and aims have never been lost sight of by those having the 
care and education of this weaker portion of our society. To 
suggest that such an institution is not charitable would seem 
to cast a reflection on the school and all those interested in its 
achievements. That it is also an educational institution in no 
way lessens its charitable nature. There would seem to be no 
reason why many institutions may not be both charitable and 
educational, and the fact that this school, by reason of its 
educational features, submits a report to the State Board of 
Education is no reason in itself why it ought not to report like- 
wise to the State Board of Charity. 

It might also be argued that the Legislature intended to 
give the State Board of Charity supervision over all institu- 
tions which exercise a control over the weaker elements of 
society, as a guard against the abuse of the confidence reposed 
in them by the contributing public and as a protection to the 
unfortunates intrusted to their care, the latter being obviously 
handicapped in any effort to protect themselves. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 361 



OPINIONS 

OF 

HENRY C. AHWILL, AnOKNEY-GENEEAL. 



Directors of the Port of Boston — Powers — CoNSTRrc- 
TioN OF Dry Dock. 

St. 1911, c. 748, § 5, providing that the Directors of the Port of Boston "may 
lay out and build . . . such piers, with buildings and appurtenances, docks, 
highways, waterways, railroad connections, storage yards and public ware- 
houses as, in the opinion of the directors, may be desirable," did not 
authorize them to enter into contracts for the construction of a dry dock 
substantially as described in the report of the Directors for the year ending 
Nov. 30, 1913, the final decision as to whether such a dry dock should be 
built having been reserved to itself by the General Court. 

You have requested my opinion as to "whether or not, To the 

^ '' ^ ' Directors of 

under the terms of chapter 748 of the Acts of 1911, or any gog^on"'"^ 
acts in amendment thereof or in addition thereto, the Directors janlfiry og 
bf the Port of Boston are authorized to enter into contracts 
I for the construction of a dry dock substantially as described in 
|:he report of said Directors for the year ending Nov. 30, 1913." 
None of the acts amendatory of chapter 748 of the Acts 
|)f 1911 have increased the powers of the Directors of the Port 

n that respect. 
The power to construct a dry dock like that described must 

)e found, if at all, in the provisions of section 5 of the act of 

911, the pertinent portion of which is as follows: — 

With the consent of the governor and council, the directors . . . may 
yy out and build . . . such piers, with buildings and appurtenances, 
ocks, highways, waterwaj^s, railroad connections, storage yards and 
ubUc warehouses as, in the opinion of the directors, may be desirable. . . . 

It may be suggested that a dry dock is but one kind of a 
ock, and that the opinion of the Directors as to the desirability 



362 OPINIONS OF THE ATTORNEY-GENERAL. 

of that particular type is conclusive. It is true that in some 
eases arising under different circumstances and in different 
localities a dry dock has been regarded as but one of many 
types, but primarily, in this country, I believe it has a more 
limited sense. 

Bouvier defines "dock" as "the space between two wharves." 

A dock is defined by philologists, according to the American use of 
the term, to be "the space between wharves." City of Boston v. Lecraw, 
17 How. at 434. 

In Webster's Dictionary we find the following: — • 

An artificial basin or inclosure in connection with a harbor, for the 
reception of vessels; the slip or waterway extending between two piers 
or projecting wharves or cut into the land, for the reception of ships. 

The Century Dictionary says: — ■ 

An inclosed water-space in which a ship floats while being loaded or 
unloaded, as the space between two wharves or piers; by extension, 
any space or structure in or upon which a ship may be berthed or held 
for loading, unloading, repairing or safe-keeping. 

A dry dock such as is described is a decided extension of 
the idea of an inclosed water-space in which a ship floats 
while being loaded or unloaded. The principal use of a dry 
dock is for the repairing or overhauling of ships, for the effi- 
cient performance of which "shops and other buildings" are 
"necessary." If the difference be considered as one of degree, 
it is so great that, in my opinion, in this country it has become 
one of kind, and in its primary meaning a dry dock is con- 
sidered more as a repair shop than as a dock. 

Under the provisions of section 5 the Directors of the Port 
are restricted in the acquiring of real property and rights and 
easements therein, to that necessary for the purpose of con- 
structing, or securing the constructing or utilizing of, piers and, 
in connection therewith, highways, waterways, railroad con- 
nections, storage yards and sites for warehouses and industrial 
establishments. The main object of the first part of this 



i 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 363 

section is to provide for the securing of land upon which to 
build piers, and the provisions for the constructing and secur- 
ing the constructing or utilization of highways, waterways, 
railroad connections, storage yards and sites for warehouses 
and industrial establishments are incidental to the main object 
and for the purpose of making the piers convenient and avail- 
able for use. Docks necessarily would be created by the con- 
struction of piers. 

No provision is made for the taking or acquiring of land or 
Dther rights for docks. If the Legislature had in mind the 
granting of the right to build a structure which would require 
ibout one-third of the total appropriation of S9,000,000 for 
ts construction, it seems probable that it would have given 
is wide a latitude in selecting the most advantageous site 
• herefor as it did with respect to piers. 

Moreover, under the provisions of the latter part of section 
> the Directors of the Port are authorized to lay out and 
•uild such piers with buildings and appurtenances as may be 
desirable, and no provision is made for appurtenances in con- 
.ection with docks. A dry dock without appurtenances for 
ts operation is useless. 

It would appear, therefore, that the docks referred to in the 
itter part of the section are those docks only that are incident 
D or connected with the use of piers or like structures which 
le Directors of the Port are authorized to construct. 
While the foregoing furnish reasons for doubting whether 
I using the word "docks" the Legislature intended to include 
lich a gigantic construction work as is described, section 12 of 
le act deals particularly with the matter of a dry dock. It 
'ovides : — 

It shall be the duty of the directors forthwith to make, and, so far as 
ay be practicable, to put into execution, comprehensive plans provid- 
? on the lands now owned or hereafter acquired by the commonwealth 

the area described in section four of this act, adequate piers, capable 
' accommodating the largest vessels, and in connection with such piers 
iitable highways, waterway's, railroad connections and storage yards, 
id sites for warehouses and industrial establishments. The directors 



364 OPINIONS OF THE ATTORNEY-GENERAL. 

shall report to the next general court, on or before the fifteenth day of 
Januarj', nineteen hundred and twelve, all necessary plans and estimates 
of cost for the construction of a dry dock equipped with modern faciUties 
and appliances, sufficient in size for the accommodation of an}^ modern 
ocean steamship. 

The effect to be given to this section must be determined with 
reference to what has gone before. 

In the report of the Board of Harbor and Land Commis- 
sioners for the year 1904 the subject of dry docks was exten- 
sively dealt with and the conclusion reached that the building 
of one was not advisable. The joint commission originally 
appointed under chapter 108 of the Resolves of 1907 sub- 
mitted its final report in 1911 to the Legislature of that year. 
It was printed as House Document No. 1550. On page 25 is 
found the conclusion of this commission: — 

In view of these facts the Commonwealth of Massachusetts would 
not be warranted in constructing, owning and operating a dry dock for 
the use of docking merchant ships; to do so would be a waste of the 
public funds to satisfy a mistaken sentiment. 

It therefore appears that the Legislature of 1911, when con- 
sidering the bill which ultimately became chapter 748 of that 
year, had before it this emphatic condemnation of the prop- 
osition of building a dry dock. In fact, the portions of this 
report immediately preceding that mentioned were referred to 
the same committee (metropolitan affairs) as that portion of 
the Governor's address concerning transportation Avhich re- 
lated to the development of the port of Boston, and a bill for 
such development. It was as a result of the reference of all 
three of these matters that the bill "Relative to the develop- 
ment of the port of Boston" was reported. 

The particular portion of the above-mentioned report of 
the joint commission which dealt with the matter of a dry 
dock was referred to the committee on harbors and public 
lands, which reported "no legislation necessary." This report 
was accepted by both branches of the Legislature. 



I 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 365 

While the question is not free from doubt, I am of the 
opinion that the events preceding; tlie passage of this act, 
taken in connection with the act itself, indicate that the 
Legislature intended to reserve to itself the final decision as to 
whether there should be built a dry dock, equipped with 
modern facilities and appliances, such as is described in the 
report of the Directors of the Port for the year ending Nov. 
30, 1913; and that without further authorization by the Legis- 
lature the Directors of the Port are not warranted in entering 
into contracts for the construction of such a drv dock. 



Pilots — Coastwise Steam Vessels — Requirement of 
Federal License — Effect on State Statute. 

I. L., c. 67, §§25 and 28, so far as they relate to coastwise steam vessels, are incon- 
sistent with and annulled by U. S. Rev. Stats., §§ 815.3 and 8206, and, there- 
fore, a Boston pilot must in addition to his State commission carry a Federal 
license in order legally to pilot coastwise steam vessels not sailing under 
register. 

Answering your favor of the 1st inst., requesting my opinion To the Pilot 

'^ ' ci ^ 1 -n •! 1 1 ^ • "^ 1 1' • Commissioners. 

pon the question whether a Boston pilot should m addition , isis 

. ^ . . ^ . February 11. 

) his State commission carry a Federal license," I beg to 

dvise you that in order legally to pilot coastwise steam vessels 
iot sailing under register a Boston pilot must carry a Federal 
cense. 

You state that by the terms of their State commissions 

loston pilots are required to serve on any vessel requiring 

leir services. This is so by virtue of the provisions of R. L., 

<)7, § 25, directing a pilot "to take charge, within the limits of 

s commission, of any vessels, not exempt from compulsory 

lotage by section twenty-eight, and of vessels not bound from 

le port to another within the commonwealth, unless they are 

the completion of a voyage from a port out of the common- 

^alth." Among the exceptions included in section 28 are 

team vessels regulated by the laws of the United States and 

<rrying a pilot commissioned by L^nited States commissioners" 

'd "vessels regularly employed in the coasting trade," but 



366 OPINIONS OF THE ATTORNEY-GENERAL. 

as to these exempted vessels, the pilot is required, by a later 
provision of section 28, to serve if requested. 

The Federal statutes material to this opinion are United 
States Compiled Statutes (1913), sections 7981, 8153 and 8206. 

Section 7981 (R. S. § 4235) is as follows: — 

Until further pro^dsion is made by Congress, all pilots in the bays, 
inlets, rivers, harbors, and ports of the United States shall continue 
to be regulated in conformity with the existing laws of the States re- 
spectively wherein such pilots may be, or mth such laws as the States 
may respectively enact for the purpose. (Act Aug. 7, 1789, c. 9.) 

Section 8153 (R. S. § 4401) is as follows: — 

All coastwise sea-going vessels, and vessels navigating the great lakes, 
shall be subject to the na\dgation laws of the United States, when navi- 
gating within the jurisdiction thereof; and all vessels, propelled in whole 
or in part by steam, and navigating as aforesaid, shall be subject to all 
the rules and regulations established in pursuance of law for the govern- 
ment of steam-vessels in passing, as provided by tliis Title; and every 
coastwise sea-going steam-vessel subject to the navigation laws of the 
United States, and to the rules and regulations aforesaid, not sailing 
under register, shall, when under way, except on the high seas, be under 
the control and direction of pilots licensed by the inspectors of steam- 
boats. (Act Feb. 28, 1871.) 

Section 8206 (R. S. § 4444) is as follows: — 

No State or municipal government shall impose upon pilots of steam- 
vessels any obligation to procure a State or other license in addition to 
that issued by the United States, or any other regulation which "will 
impede such pilots in the performance of the duties required by this 
Title; nor shall any pilot-charges be levied by any such authority upon 
any steamer piloted as provided by this Title; and in no case shall the 
fees charged for the pilotage of any steam-vessel exceed the customar}' 
or legally established rates in the State where the same is performed. 
Nothing in this Title shall be construed to annul or affect any regulation 
established by the laws of any State, requiring vessels entering or leaving 
a port in any such State, other than coastwise steam-vessels, to take a 
pilot duly licensed or authorized by the laws of such State or of a State 
situate upon the waters of such State. (Act Feb. 28, 1871.) 

Under Article I., section VIII., clause 3 of the Constitu- 
tion of the United States, Congress has power "to regulate 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 367 

commerce with foreign nations, and among the several states, 
etc." It has been established by decisions of the United 
States Supreme Court that this authorizes the regulation of 
navigation, including therein regulation of the ciualifications of 
pilots, the modes and times of offering and rendering their 
ser\'ices, and the responsibilities which shall rest upon them. 
Cooley V, Board of Wardens of Port of Philadelphia, 12 How. 
144. 

This power is not limited to navigation on the high seas but 
extends to every part of the voyage from wharf to wharf. The 
subject covered by this clause of the Constitution is not one 
the exclusive control over which resides in Congress. It is the 
exercise of its power to regulate commerce among the several 
States which is incompatible with the exercise of the same 
power by the States. In the absence, therefore, of congres- 
sional regulation, the provisions of our Revised Laws, chapter 
67, sections 25 and 28, are in full force and effect. 

So far, therefore, as the statutes or regulations of the Com- 
monwealth conflict with the acts of Congress above quoted, 
they are null and void. Section 8153 requires that pilots 
[licensed by United States inspectors of steamboats shall con- 
trol every coastwise sea-going steam vessel not sailing under 
•egister. The question of the effect of this regulation, among 
)thers, upon existing State regulations is specifically treated 
n section 8206, wherein it is stated that " Nothing in this 
Title shall be construed to annul or affect any regulation 
I'stablished by the laws of any State, requiring vessels enter- 
ng or leaving a port in any such State, other than coastwise 
\team-vessels, to take a pilot duly licensed or authorized by 
he laws of such State. . . ." As to coastwise steam vessels 
ot sailing under register, therefore. Congress has expressly 
lid that it annuls any State regulation requiring pilot service 
lereon. It follows that the provisions of R. L., c. 67, §§ 25 
lid 28, cannot protect a pilot serving by request or other- 
ise "coastwise steam vessels not sailing under register," and 
order legally to pilot such vessels the pilot must hold a 
■ense issued by the United States inspectors of steamboats. 



368 OPINIONS OF THE ATTORNEY-GENERAL. 



New York, New Haven & Hartford Railroad Company — 
Control of Boston & Maine Railroad through 
Boston Railroad Holding Company — Effect of Com- 
pliance WITH Decree of United States District Court 
— St. 1914, c. 7GG, not accepted. 

History of acquisition of control of the Boston & Maine Railroad bj^ the New York, 
New Haven & Hartford Railroad Company through the formation of the 
Boston Railroad Holding Company, with a statement of charter powers of 
the latter corporation. 

St. 1914, c. 766, has not been complied with by the New Y'ork, New Haven & Hart- 
ford Railroad Company or by the persons named as liquidators in Appendix 
A annexed to that statute. 

The terms of Appendix A have not been substantially incorporated in the decree 
entered in the United States District Court for the Southern District of 
New York on Oct. 17, 1914, by consent of the parties, in the suit brought by 
the United States against the New York, New Haven & Hartford Railroad 
Company, the Boston Railroad Holding Company and others, alleging an 
illegal combination in violation of the Sherman act. 

St. 1914, c. 766, § 1, did not authorize the Governor to modify the provisions of 
sections 3, 4 and 5 of that statute creating an option in the Commonwealth 
to take or purchase shares of stock in the Boston & Maine Railroad owned by 
the Boston Railroad Holding Company. Appendix A could not, therefore, 
be modified to conform to this decree. 

Unless the trustees appointed by the decree referred to are hereafter directed by the 
United States District Court to sell the shares of the Boston & Maine Rail- 
road owned by the Boston Railroad Holding Company, subject to the condi- 
tion stated in St. 1914, c. 766, a compliance with that act is inconsistent with 
a compliance with the decree. 

The mere transfer by the New York, New Haven & Hartford Railroad Company 
of the shares of the Boston Railroad Holding Company owned by it to the 
trustees named in the decree referred to in accordance with the order of the 
court was not a violation of the laws of this Commonwealth. If hereafter 
this stock is sold by these trustees by order of the United States District Court 
without the consent of the General Court, and the purchaser acquires a good 
title, the terms of the act creating the Boston Railroad Holding Company will 
then be violated. 

The transfer by the New Y^ork, New Haven & Hartford Railroad Company of the 
shares of the Boston Railroad Holding Company to the trustees named in the 
decree referred to in accordance with the order of the United States District 
Court was not an acceptance by it of the provisions of St. 1914, c. 766. 

of°ReprS°""' I have the honor to acknowledge the receipt of an order 
seutatjves. passed by the House of Representatives on February 11 in the 

February 23. „ ,, . » 

lollowing lorm : — 

Ordered, That the following questions of law be submitted to the 
Attorney-General, with the request that his opinion be returned to the 
House of Representatives at his earliest convenience : — 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 369 

1. Whether the provisions of chapter 7G6 of the Acts of the year 1914, 
to which there is an appendix entitled "Appendix A," have been com- 
plied with by the New York, New Haven & Hartford Railroad Com- 
pany and the persons named therein as liquidators. 

2. WTiether the terms of said Appendix A have been substantially 
incorporated in a decree of the United States District Court of the 
Southern District of New York. 

3. Whether under the provisions of said act said agreement set forth 
in said Appendix A could have been modified or amended so as to con- 
form in all respects with said decree. 

4. Whether a compliance with said act is in anj^ way inconsistent 
with compliance with said decree. 

5. Whether the transfer of the shares of the Boston Railroad Holding 
Company or any of them to the said persons named as liquidators in a 
manner not contemplated in said act and without the execution of the 
agreement set forth in Appendix A or any amendment thereof is a violation 
of the laws of the Commonwealth. 

6. Whether the transfer of said shares to said persons, though not in 
accordance uath the provisions of said act, is in effect an acceptance of 
all the provisions of said act, and particularly of section 3 of said act, or 
whether by the transfer of said shares in a manner not contemplated by 
said act the provisions of said section have been evaded. 

1 

I In order adequately to answer these inquiries it is necessary 

to recall some incidents in recent railroad history, most of 

:hem matters of public knowledge. I shall refer to the New 

york. New Haven & Hartford Railroad Company as the New 

iaven Company, to the Boston Railroad Holding Company 

lis the Holding Company, and to the Boston & Maine Rail- 

jOad as the Maine Company. 

1 On May 8, 1908, the Supreme Judicial Court decided (.4/- 

orney-General v. New York, New Haven & Hartford Railroad 

'ompany, 198 Mass. 41.3) that the New Haven Company was 

■rohibited by the statutes of this Commonwealth from directly 

r indirectly subscribing for, taking or holding the stocks or 

onds of any other corporation without the authority of the 

reneral Court. The stocks involved in that decision were 

lares in certain street railway corporations located in central 

•id western Massachusetts. The decree in that case was 

aally affirmed on March 1, 1909. Prior to this decision the 



370 OPINIONS OF THE ATTORNEY-GENERAL. 

New Haven Company had acquired and was holding a large 
number of shares of the Maine Company. About this time, 
and apparently in view of the decision just referred to, these 
shares were transferred by the New Haven Company to a cor- 
poration formed under the laws of another State. 

On April 20, '1909, His Excellency Governor Draper called 
the attention of the General Court to this situation, and sug- 
gested the advisability of creating a corporation which, under 
prescribed limitations, should have the right to purchase and 
hold shares of stock in the Maine Company. (See Acts and 
Resolves, 1909, p. 965.) The result was the statute of 1909, 
chapter 519, incorporating the Holding Company. 

Section 1 of that act defined the general charter powers of 
that corporation in the following language: — 

... for the sole purpose of acquiring and holding the whole or any 
part of the capital stock, bonds and other evidences of indebtedness 
of the Boston and Maine Railroad, and of voting upon all certificates 
of stock so acquired and held, and of receiving and collecting divi- 
dends and interest upon said stock, bonds and other evidences of in- 
debtedness. 

Section 3 provided, in part: — 

The stock of the Boston and Maine Railroad which may be acquired 
by said Boston Railroad Holding Company shall not be sold by it without 
express authority from the legislature; . . . 

Section 4 authorized any railroad incorporated under the 
laws of the Commonwealth at that date to guarantee dividends 
and interest upon the stocks and bonds of the Holding Com- 
pany, and to acquire and hold such stocks and bonds. It 
further provided : — 

Any railroad corporation acquiring said stock as hereinbefore pro- 
vided shall not thereafter sell the same without the express authority of 
the legislature. The commonwealth may at any time by act of the 
legislature, upon one year's notice, take or acquire by purchase or other- 
wise the stock, bonds, notes and other evidences of indebtedness issued 
by the said Boston Railroad Holding Company. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 371 

The section then went on to provide the conditions under 
which this taking should be made and the manner in which 
compensation for the property taken should be determined. 

Acts of 1910, chapter 639, authorized the Holding Company 
to issue preferred stock which should have no voting power. 
It expressly made this preferred stock a lien upon all the 
stock of the Maine Company at any time held by the Holding 
Company. It provided that any railroad owning common 
stock of the Holding Company might acquire, hold, own and 
sell any of its preferred stock. 

Under the authority of these statutes the Holding Company 
was formed. It acquired the stock of the Maine Company 
which had been transferred by the New Haven Company to a 
foreign corporation as hereinbefore stated, and, also, as I am 
informed, certain of the stock of the Maine Company held by 
various individuals. The New Haven Company acquired, and 
up to the date of the decree referred to in your order was hold- 
ing, 31,065 shares of the common stock and 244,939 shares of 
the preferred stock of the Holding Company. This was all the 
common stock and all but approximately 28,000 of the pre- 
ferred stock. 

Subsequent to the perfection of this arrangement it was 

.claimed by the Attorney-General of the United States that 

j,he relations between the New Haven Company and its asso- 

•iated corporations, including the Holding Company, were a 

iolation of the Sherman anti-trust law. It was expressly 

laimed that the control of the Maine Company by the New 

jlaven Company through the instrumentality of the Holding 

'ompany was a part of an illegal combination in restraint of 

rade and commerce among the States. The New Haven 

'ompany denied that it was violating the law, but, owing to 

s financial condition, felt that it was unwise for it to engage 

1 a long and expensive contest with the United States. Ac- 

Drdingly, numerous conferences were held between the rep- 

'sentatives of the railroad and the Attorney-General of the 

nited States for the purpose of bringing about, by agreement, 

dissolution of the alleged illegal combinations. When an 



372 OPINIONS OF THE ATTORNEY-GENERAL. 

agreement had been nearly, if not quite, reached, though not 
executed, the matter was called to the attention of the General 
Court by His Excellency Governor Walsh, and thereafter 
chapter 766 of the Acts of 1914 was passed, and approved on 
July 7, 1914. 

Thereafter, as I am informed, the directors of the New Haven 
Company by vote expressly declined to accept the provisions 
of this act. So far as I am informed no agreement in the form 
of Appendix A, annexed thereto, was ever executed by the 
New Haven Company. 

On July 23, 1914, a bill in equity was brought by the At- 
torney-General of the United States in the United States Dis- 
trict Court for the Southern District of New York, in the 
name of the United States, against the New Haven Company, 
the Holding Company and various other defendants, alleging 
that the defendants were parties to combinations in violation 
of the Sherman act, and seeking a dissolution of these combina- 
tions by decree of court. Thereafter further negotiations were 
held between the parties, and finally, on Oct. 17, 1914, by 
written consent of the defendants, the decree referred to in your 
order was entered for the purpose of bringing about a dissolu- 
tion of the alleged illegal combinations. So far as appears from 
the records of that court this formal assent is the only written 
agreement made by the parties in connection with the entry 
of this decree. I submit herewith an attested copy of the 
decree. I am informed that the New Haven Company has 
dul}^ transferred to the trustees named in the first section of the 
decree the stock of the Holding Company therein described. 

Before proceeding to answer your questions, it is important 
to note an essential and distinguishing feature of chapter 
766 of the Acts of 1914. Section 3 provides that upon the 
acceptance of that act the Holding Company shall forthwith 
cause to be printed on each certificate of stock of the Maine 
Company held by it the words, "This stock may at any time 
be taken or purchased by the Commonwealth of Massachusetts 
at the fair value thereof in accordance with law." The statute 
directs that the same words be printed on all certificates there- 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 373 

after issued by the iNIaine Company to future transferees 
representing any stock held by the Holding Company, and also 
upon all certificates for new issues. Section 5 then provides 
that the Commonwealth may at any time, by act of the General 
Court, take or acquire any or all stock of the Maine Company 
so printed, held by any person. The method of determining 
the compensation to be paid is set forth. The obvious eft'ect 
and purpose of these provisions if accepted and complied with 
were to give the Commonwealth an option to take or purchase 
this stock at any time from any holder of it. The statute (sec- 
tion 2) authorized the Holding Company to sell its Boston and 
Maine stock only upon the condition that it be subject to this 
option to the Commonwealth to acquire it from the purchasers 
or their subsequent transferees. 

With this review of the situation, I proceed to answer your 
questions. 

1. I am of opinion that chapter 766 of the Acts of 1914 
has not been complied with by the New Haven Company or 
by the persons named as liquidators in Appendix A. 

While the decree entered in the United States District Court 
"ollowed Appendix A in most respects, as I shall later point 
)ut, there are certain important differences between the decree 
md Appendix A. Then, the decree in no way attempts to 
)reserve or create any option to the Commonwealth to ac- 
quire the Maine Company stock owned by the Holding Com- 
|)any from subsequent purchasers in the event that a sale of it 
j>y the trustees is thereafter ordered by the court. Section 7 
'if chapter 766 provides that a transfer of shares of the Hold- 
ng Company by the New Haven Company, to be held in 
ccordance with the terms of Appendix A, shall be deemed 
n acceptance of the act by the New Haven Company. Neither 
ppendix A nor any similar agreement has been executed by 
le New Haven Company. Though the general scheme and 
lost of the terms of Appendix A have been incorporated in the 
3cree entered by agreement, no provision has been made for 
eating or enforcing the proposed option to the Common- 
ealth, which was the distinguishing feature of chapter 766. 



374 OPINIONS OF THE ATTORNEY-GENERAL. 

In my opinion the consent of the New Haven Company and the 
liquidators to the decree was not intended to be, and did not in 
fact constitute, an acceptance by them of chapter 766 of the 
Acts of 1914. 

2. As I have already stated, a very large part of Appendix 
A was incorporated in the decree. I have carefully compared 
the terms of the two documents. While there are some dif- 
ferences of order and phraseology, for the most part made 
necessary by the natural differences between an agreement 
and a decree, I find but two substantial differences. 

By Section First, paragraph F of the decree, the trustees 
are authorized to exchange the shares of the Maine Company 
held by the Holding Company for shares or securities in an- 
other corporation in case "a reorganization of the Maine 
Company with or without its leased lines, or any of them, shall 
be proposed." Paragraph 7 of Appendix A gives a similar 
authority to exchange only in case "a reorganization of the 
Maine Company and its leased lines shall be proposed." Thus, 
the authority to exchange in case of reorganization is con- 
siderably broader under the decree than that contemplated by 
Appendix A. 

The main point of difference, however, is to be found in the 
provisions for the sale of the Maine Company stock held by 
the Holding Company. Paragraph 2 of Appendix A is as 
follows : — 

As early as may be the liquidators shall make proper arrangements 
to protect the rights of the Holding Company's preferred stockholders, 
and after such arrangements have been made shall exercise their powers 
so that there shall be a sale at such time or times, together or in parcels, 
and by public auction or by private contract, of aU the shares of the 
Maine Company belonging to the Holding Company free from the 
statutory lien of the preferred shares hereby transferred, and of any 
other property belonging to it whenever in their judgment such sale or 
sales can be made to the best advantage. 

The counterpart of this provision in the decree (paragraph 
B of Section First) is as follows: — ■ 

As early as may be the trustees shall make proper arrangements to 
protect the rights of preferred stockliolders of the Holding Company, 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 375 

after which, but not until further order of the court, they shall exercise 
their powers so that there shall be a sale or sales, together or in parcels, 
by public auction or private contract, of all the shares of the Maine 
Company owned by the Holding Company, free from the statutory 
lien of the preferred shares of the Holding Company hereby directed 
to be transferred; and also a sale or sales of any other property owned 
by the Holding Company, whenever in their judgment that can be done 
to the best advantage. 

No order directing the sale of such shares of the Maine Company or 
any portion of them or fixing the terms or conditions thereof shall be 
made by the court until after Julj'- 1, 1915, unless the New Haven Com- 
pany shaU in writing consent thereto. If no such order has been made 
before July 1, 1915, the court on application of any party and after a 
hearing at which the Commonwealth of Massachusetts shall be invited 
to appear, shall direct the sale and fix the terms and conditions thereof. 

Thus it is to be seen that while Appendix A authorized and 
directed a sale of the Maine Company stock by the liquidators 
without further authority, the decree provides merely that the 
trustees shall arrange and prepare for a sale, but that this 
sale shall not be held "until further order of the court." No 
sale is to be ordered before July 1, 1915, without the written 
consent of the New Haven Company. On any application for 
authority to sell after that date the Commonwealth is to be 
given an opportunity to be heard, and the court is then to 
direct the sale upon such terms and conditions as it may fix. 
Thus the entire matter of the terms and conditions of the sale 
of the Maine Company stock is reserved for the future deter- 
mination of the court. 

As I view it, this difference in the power of sale granted by 
the decree from that stated in Appendix A is a substantial one. 
I must answer your second question in the negative. 

3. I understand your third question to refer to the last 
clause of section 1 of chapter 766, namely, "said stock to be 
lield and disposed of by said liquidators in accordance with 
the terms of such written instrument or any written modifica- 
tion thereof hereafter approved by the attorney-general of the 
United States and by the governor of the commonwealth." 

I interpret this clause to mean that after the New Haven 
Company has transferred the stock of the Holding Company 



376 OPINIONS OF THE ATTORNEY-GENERAL. 

to the liquidators under a written instrument in the form of 
Appendix A, that instrument may subsequently be modified, 
so far as the powers of the liquidators to hold and dispose of 
the stock are concerned, by a written instrument entered into 
between the parties and approved by the Attorney-General of 
the United States and the Governor of this Commonwealth. 
I do not understand that this clause refers to substantial 
changes in Appendix A before it is executed and the statute 
thus accepted by the New Haven Company and the Holding 
Company. In any event, I am of opinion that chapter 766 
gave no authority to the Governor to modify the conditions 
imposed by sections 3, 4 and 5 of that act creating an option 
in the Commonwealth as already described. 

4. If, on an application made under paragraph B of Section 
First of the decree, the United States District Court should 
direct the trustees to sell the Maine Company stock upon 
the conditions imposed by chapter 766, a compliance with 
that act would not be inconsistent with a compliance with the 
decree. Unless thus directed by future orders of the United 
States District Court, the trustees cannot comply with terms 
or conditions contained in chapter 766 or the appendix thereto, 
and not expressly made a part of the decree. 

5. Section 4 of chapter 519 of the Acts of 1909 provides:^ 

Any railroad corporation acquiring said stock as hereinbefore pro- 
vided shall not thereafter sell the same without the express authority 
of the legislature. 

This refers only to the common stock. By chapter 639 of the 
Acts of 1910 express authority is given to a railroad owning 
preferred stock to sell the same. Your fifth question, there- 
fore, can relate only to the 31,065 shares of common stock 
transferred under the decree. 

It is to be noted that no sale of this common stock has 
taken place and that none is contemplated by the decree. 
The legal title has merely been transferred to trustees to hold 
for the ultimate benefit of the New Haven Company, its 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 377 

owners. The trustees are to liquidate the affairs of the Hold- 
ing Company, and then are to bring about its dissolution and a 
distribution of its assets. 

It has been judicially determined by this decree that the 
holding of this stock by the New Haven Company, and the 
consequent control by it of the Maine Company, was a viola- 
tion of the laws of the United States. This determination is 
binding upon the New Haven Company, though not, of course, 
upon the Commonw^ealth. In order to dissolve this com- 
bination the New Haven Company has been in effect ordered 
to liquidate and dissolve the Holding Company. This is to be 
brought about by independent trustees who are to hold the 
Holding Company stock for the financial benefit of the New 
Haven Company as its owner, but in such a manner that the 
aws of the United States shall not be violated. 

In my opinion the mere transfer by the New Haven Com- 

)any of the shares of the Holding Company to the trustees 

lamed in the decree in accordance with the order of the 

Jnited States District Court was not a violation of the laws 

' f this Commonwealth. The decree, however, plainly con- 

emplates a sale of the Maine Company stock held by the 

lolding Company under such terms and conditions as the 

)urt shall hereafter fix. Ordinarily it would not be presumed 

lat the United States District Court would direct such a sale 

) be made in any manner in violation of the laws of this 

ommonwealth. But the execution of this decree necessarily 

volves a sale upon some conditions of the Maine Company 

ock now owned by the Holding Company, a distribution of its 

sets and a dissolution of the corporation. Chapter 519 of the 

jts of 1909 expressly forbade any sale of that stock " without 

e express authority of the legislature." That statute also 

sms to contemplate the continued existence of the Holding 

' )mpany as an instrumentality created by this Commonwealth 

1' the better supervision by it of the Maine Company. If, 

1 der these circumstances, as seems to be contemplated by the 

(2ree, the United States District Court shall hereafter, without 

t? consent of the Legislature of Massachusetts, order a sale of 



378 OPINIONS OF THE ATTORNEY-GENERAL. 

this stock, and the purchaser at such sale shall thereby acquire 
a good title to the stock, it is apparent that the terms of the 
act creating the Holding Company will then be violated. 

The provision of the decree, already quoted, seems to con- 
template that an order directing a sale of the Maine Company 
stock may be entered at any time before July 1, 1915, upon 
the written consent of the New Haven Company, without 
notice of any sort to this Commonwealth. The decree recites 
that upon an application made after July 1, 1915, after a 
hearing at which the Commonwealth of Massachusetts "shall 
. be invited to appear," the court shall direct the sale and fix 
the terms and conditions thereof. The decree is silent as to 
the purpose of this invitation, nor does it suggest what would 
be the effect of its acceptance by the Commonwealth. 

An examination of the record in this suit, made on February 
19, shows that there have been no proceedings of record since 
the entry of the decree on Oct. 17, 1914. That such rights as 
the Commonwealth may have acquired by the act creating the 
Holding Company be not prejudiced by any subsequent pro- 
ceedings without notice, I have requested the court and the 
Attorney-General of the United States to give me notice of all 
future applications made to the court in this case before any 
order is entered thereon. However, there may be some doubt 
whether the Commonwealth would be permitted to intervene in 
this suit. For that reason, and in view of the history of the 
Holding Company, it may be appropriate for the General Court 
to consider the advisability of taking action to enable the Attorney- 
General to appear, in the present suit or in anj' subsequent pro- 
ceeding, in behalf of the Holding Company, in order to protect 
whatever interest the Commonwealth may have in the stock 
of the Holding Company or in the Maine Company stock held 
by the Holding Company, and also the rights of the Holding 
Company itself as an instrumentality of the Commonwealth of 
Massachusetts. 

6. As stated in my answer to your first question, a transfer 
by the New Haven Company of the shares of the Holding 
Company in accordance with the decree and in a different 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 379 

manner from that contemplated by section 1 of chapter 766, 
is not in my opinion an acceptance of the provisions of that 
act. Section 3 takes effect only upon such acceptance of the 
act by the transfer, as provided in sections 1 and 7. In my 
opinion section 3 has not been in effect accepted by this trans- 
fer made under the decree. This section has been evaded 
only in the sense that the determination of the terms and 
conditions under which the IMaine Company stock is to be sold 
ha? been postponed bj^ the court for future adjudication, 
without reference to said section. 



Towns — Firewards — Appointment by Selectmen. 

The oflace of fireward established by the General Court of the Province in 1711 and 
existing under R. L., c. 32, § 9, was not abolished by St. 1907, c. 475, §§5 and 
10, creating forest firewards. Firewards may still be appointed by selectmen 
of towns when there is no organized fire department. 

You ask if the selectmen in towns may now appoint fire- to the state 
wards under R. L., c. 32, § 9, or if the office of fireward has i9i5 
been abolished by St. 1907, c. 475, §§ 5 and 10. 

Firewards have been recognized by law in this Common- 
ivealth for more than two hundred years, and up to the en- 
ictment of the law creating forest firewards it was the duty of 
irewards to direct the work of fighting forest fires as well as 
)ther fires. 

The earliest law providing for the appointment of firewards, 
vhich constituted the nucleus of the first official fire department 
n the Commonwealth, was passed by the General Court of the 
Vovince of Massachusetts Bay on Oct. 31, 1711. The first 
ection of the act provides: — 

That it shall and may be lawful, to and for the justices of the peace 
nd selectmen of the town of Boston, from time to time to appoint such 
umber of prudent persons, of known fidelity, not exceeding ten, in the 
iveral parts of the town, as they may think fit, who shall be denom- 
lated and called firewards, and have a proper badge assigned to dis- 
nguish them in their office: viz., a staff of five feet in length, coloured 
d, and headed with a bright brass spire of six inches long; and at times 

the breaking forth of fire, and during the continuance thereof, shall 



)80 OPINIONS OF THE ATTORNEY-GENERAL. 

and hereby are fully authorized and impowered to command and require 
assistance for the extinguishing and putting out the fire, and for removing 
of household stuff and furniture, goods and merchandizes, out of any 
dwelling-houses, storehouses, or other buildings actually on fire, or in 
danger thereof, and guards to secure and take care of the same; as, also, 
to require assistance for the pulling down or blowing up of any houses, 
or any other service relating thereto, by the direction of two or three of 
the chief civil or military officers of the town (as is by law provided), 
to stop and prevent the further spreading of the fire, and to suppress 
all tumults and disorder. 

The extension of the fireward system was provided for in 
1744 by chapter 30 of the acts of that year, section 1 of which 
reads : — 

That the several towns within this province may, if they see fit, at 
their anniversary meeting in March, annually appoint a suitable number 
of persons, not exceeding ten, who shall be denominated firewards, and 
have each, for a distinguishing badge of the office, a staff of five feet 
long, painted red, and headed with a bright brass spire six inches long. 

Sections 9 and 10 of chapter .32 of the Revised Laws, which 
is the last enactment on the subject, are as follows: — 

Section 9. The selectmen of a town may annually, in March or 
April, appoint firewards and forthwith give them notice thereof. Who- 
ever neglects, within seven days after such notice, to file with the town 
clerk his acceptance or refusal of the office shall, unless excused by the 
selectmen, forfeit ten dollars. 

Section 10. If a fire breaks out, the firewards shall immediately 
repair thereto, and shall carry a suitable staff or badge of office. 

By the laws of 1784, chapter 64, provision was made for 
the appointment of enginemen in towns, and chapter. 42 of 
the Acts of 1785 provided that the "said enginemen appointed 
as aforesaid shall be held and obliged to go forward either by 
night or by day under the direction of the firewards in the 
same town." Laws authorizing the organization of fire depart- 
ments were later enacted, but in no enactment was the fireward 
law repealed. 

The office of forest fireward was created by St. 1886, c. 298, 
which provided that such firewards should, in respect to fires 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 381 

in woodlands, have and exercise the powers and duties pre- 
scribed for forest fires. This law was amended by St. 1907, 
c. 475, and the powers and duties of forest firewards, with the 
change of name to forest wardens, were more clearly defined. 
No repeal of the original fireward law was effected, and that 
law, as revised and codified in the Revised Laws, still stands. 
Firewards may be appointed, but they no longer have juris- 
diction over forest fires, and in towns having organized fire 
departments there would seem to be no reason for their ex- 
istence. Where there is no fire department in a town, engine- 
men and hosemen are, by R. L., c. 32, § 28, "under the 
direction of the firewards." In such communities the historical 
character of fireward still exists, and he may even carry a 
Dadge or staff to distinguish him, though the original staff five 
eet in length, colored red, headed with a bright brass spire 
.ix inches long, is not now required. 



'Executive Council — Powers — Removal of Public Of- 
ficer — No Right to reconsider Removal after 
Appointment and Qualification of Successor. 

he Executive Council has no power on its own initiative to reopen or in any 
manner revise the matter of the removal of the Commissioner of Animal 
Industry by the Governor, with the advice and consent of the Council, during 
the previous political year and after the appointment and qualification of his 
successor, assuming that removal to have been legal. 

I such a case the Executive Council cannot properly, on petition of the person 
thus removed, hear or consider any evidence bearing upon the charges made 
against him at the time of his removal, whether that evidence was then heard 
or not. 

le Executive Council has no power to reconsider the consent given by it to an 
appointment to public office by the Governor after the appointee has duly 
qualified as such public officer, whether that consent was given during the 
term of the councillors then in office or that of their predecessors. 

I beg to acknowledge the receipt of your communication of q^^^® 
'bruary 2.5, in which you ask mj^ opinion upon the following 
' lestion : — 

Has the Executive Council the constitutional power to reopen on its 
t n initiative the case of the Commissioner of Animal Industry, who 



Governor 
and Council. 

1915 
March 9. 



382 OPINIONS OF THE ATTORNEY-GENERAL. 

has been removed from office during the preceding poHtical year by the 
Governor, with the advice and consent of the Council? 

Also the communication of your committee appointed by His 
Excellency "to frame such other questions as they desire in 
reference to the petition of Mr. Walker to the Executive 
Council, asking to have his case reopened," dated March 4, 
1915, requesting my opinion upon the following questions: — 

1. Can the present Executive Council hear such evidence as the pe- 
titioner may wish to present, and after such hearing may the Council 
give such advice to the Governor as the facts seem to them to warrant? 

2. Does the question of hearing the petitioner come under the pro- 
visions of Article I., section III., chapter II., of the Constitution of 
Massachusetts, and if coming under said provisions is the Governor 
simply a member of the Council with one vote? 

3. If a public official has been removed by the Governor with the 
advice and consent of the Council, can that Council, or its successor in 
office, consider evidence which such official desires subsequently to 
present and •which he claims was not formerly heard, to determine whether 
the advice given to the Governor was warranted in view of the evidence 
thus brought to its attention? 

I shall refer to the question contained in your communication 
of February 25 as your first question and to the questions con- 
tained in your communication of March 4, numbered 1, 2 and 3, 
as your second, third and fourth questions. 

Your first question, I take it, has for its purpose your desire 
to ascertain whether the Council can, of its own initiative, in 
any way set aside or alter the effect of the action of the 
Governor and Council of the political year ending Jan. 7, 1915, 
in removing Fred F. Walker from the office of Commissioner 
of Animal Industry. It assumes that his removal was lawful, 
and acting upon that assumption I proceed to answer your 
question. 

In an opinion rendered to the Governor and Council on 
May 29, 1906 (190 Mass. 616), it was said by the justices of 
the Supreme Judicial Court that "where the Constitution 
declares the power to act is in the Governor, or that the act 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 383 

may be done by the Governor, 'by and with the advice of 
Council,' or 'by and with the advice and consent of the Coun- 
cil,' " they were of the opinion that the only connection that 
the Council can have with the power is advisory, and that 
"unless the Governor first determines upon the act there is no 
occasion for their participation by way of advice or consent." 
While the appointment of the Commissioner of Animal 
Industry by the Governor, with the advice and consent of the 
Council, is not made by virtue of the Constitution but through 
authority granted by the General Court in an act entitled "An 
Act to abolish the Cattle Bureau of the State Board of Agri- 
culture and to create a Department of Animal Industry," 
(St. 1912, c. 608), yet the principles involved are the same, and 
the reasoning of the justices of the Supreme Judicial Court in 
the opinion referred to is applicable to the question presented. 
It would appear, therefore, that, assuming the removal of 
Fred F. Walker was lawful, the Council has no authority, 
)f its own initiative, to take any action toward the reinstate- 
nent of ]\Ir. W^alker to the position of Commissioner of Animal 
ndustry. Furthermore, assuming that the Council has the 
ight to initiate proceedings looking toward his reinstatement, 
t is apparent that any action it may take at this time will be 
'ithout any legal effect whatever. The records of the Gov- 
rnor and Council for the political year ending Jan. 7, 1915, 
isclose that on the first day of January, 1915, the Governor, 
cting by and with the consent of the Council, removed Fred 
'. Walker from the office of Commissioner of Animal Industry, 
nd that on the same day the Governor, acting by and with the 
msent of the Council, appointed Lester H. Howard Com- 
lissioner of Animal Industry, and that on the second day of 
muary, 1915, the said Lester H. Howard duly qualified as 
tch commissioner. 

Obviously, the present Council has no power to revise the 

■tion of the former Council in its confirmation of the ap- 

•intment of the said Lester H. Howard, who has accepted the 

J'pointment of Commissioner of Animal Industry and duly 

<ialified therefor, nor, in my opinion, could the former Coun- 



J84 OPINIONS OF THE ATTORNEY-GENERAL. 

cil vote to reconsider its advice and consent to his appoint- 
ment after he had duly quaHfied as such commissioner. If 
the law were otherwise it would tend to chaos in government, 
as it would follow that appointees, including judges, after their 
appointment and confirmation, and after they had duly quali- 
fied and entered into the performance of their duties, could 
be later ousted from ojffice by a reconsideration by the Council 
of its advice and consent to the appointment. This would 
result in the acts of the officials ousted being put in question, 
if not made null and void. 

Hon. Dana Malone, a predecessor in this office, on March 6, 
1907, rendered an opinion to His Excellency Governor Guild, 
that the Council, having once given its advice to the Governor 
in relation to an appointment to or removal from office, and 
gone upon record, could not initiate of themselves further 
discussion of the matter. 

It follows in my opinion that the answer to your first ques- 
tion must be in the negative. 

Your second question asks my opinion as to whether the 
present Council can hear such evidence as the petitioner, 
Fred F. Walker, desires to present in relation to a petition 
filed by him with the Governor and Council on the twenty- 
sixth day of January, 1915. This petition, a copy of which 
was submitted to me with your questions, alleges that Mr. 
Walker's removal was unlawful, and that by reason of his re- 
moval being unlawful he desires a hearing upon certain charges 
contained in a report of the Commission on Economy and Ef- 
ficiency, in order that, in the event that the present Council 
finds the charges unfounded, he may be reinstated. You ask 
me to answer your question upon the assumption that his 
removal was lawful. 

Assuming that the removal was lawful, the Council, in my 
opinion, has no jurisdiction of the subject-matter contained 
in the petition, and any advice given or any action taken by 
it upon the petition would be without any force or effect what- 
ever. 

While it is apparent that if the members of the Council, 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 385 

notwithstanding: their want of jurisdiction in the premises, 
desire to listen to such evidence as Mr. Walker may w'ish to 
present, they may do so, I am of the opinion that thej- can- 
not, as the Council, properly hear or consider such evidence, 
as the matter to which the evidence relates is not one within 
its province. 

In reply to your third question, assuming that the removal 
of Mr. Walker was lawful, I am of the opinion that as the 
Governor and Council are without jurisdiction of the subject- 
matter contained in the petition, the question of a hearing 
upon the same does not fall within the provisions of Article 
I. of section III. of chapter II. of the Constitution of !Massa- 
chusetts. 

In reply to your fourth question, which is asked u])on the 
assumption that the removal of the official was lawful, I am of 
the opinion that the Council cannot properly hear evidence of 
the character stated in your question. Manifestly, the only 
purpose for hearing and considering such evidence, where an 
official has been legally removed from office, would be to pass 
upon the wisdom of the judgment of a former Council. The 
duties and powers of the Council, except such as are created by 
the General Court, are defined in the Constitution of Massa- 
chusetts. I know of no act of the General Court nor provision 
1 of the Constitution which warrants such action bv the Council. 



386 OPINIONS OF THE ATTOENEY-GENERAL. 



Constitutional Law — Freedom of Contract — Police 
Power — Regulation of Sale of Newspapers and 
Periodicals in Combination. 

A proposed act declaring illegal any agreement by news dealers, news agents and 
publishers which provides for the sale of two or more newspapers or periodicals 
only in combination with each other, or unless offered separately at the 
current price, would be unconstitutional if enacted, as denying the equal 
protection of the law in violation of the Fourteenth Amendment of the 
Constitution of the United States and as not being a reasonable regulation 
in the interests of the public health, safety, morals or general welfare under the 
police power. 

Jf°Repr^°"'"^ I have the honor to acknowledge receipt of an order, passed 
sentatdves. ^^ ^-^^ JJousc of Representatives on March 3, 1915, requesting 
-^— ' the Attorney-General to inform the House of Representatives 
whether or not in his opinion the bill printed as House Bill 
No. 437, which provides for the regulation of the sale of news- 
papers and periodicals, would be constitutional if enacted. 

The main purpose of the bill seems to be declared in sections 
2 and 3, which are as follows : — 

Section 2. Every newspaper or other periodical publication offered 
for sale in this commonwealth shall be offered separately at the current 
price for such publication, and it shall be unlawful for any newsdealer, 
news agent or publisher of any newspaper or other periodical to enter 
into any agreement, compact or understanding with any person, firm or 
corporation in this commonwealth with the intent to deprive any pur- 
chaser of the privilege of buying any newspaper or periodical singly and 
separately at the current price of each publication. 

Section 3. It shall be unlawful to insert one newspaper within another 
newspaper or periodical issued from a different office of publication or 
to offer such combmation or publications for sale without affording the 
purchaser the opportunity to buy either newspaper or publication 
separately if he so desires at the current price of each publication. 

These sections are directed solely at news dealers, news agents 
and publishers of newspapers and periodicals. Section 2 appears 
to make illegal any agreement by persons engaged in such 
business which provides for the sale of two or more publications 
only in combination wdth each other. Any such agreement, 
the natural effect of which is to deprive any person within the 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 387 

Commonwealth of the privilege of buying any newspaper or 
periodical separately and at its current price, comes within the 
prohibition of the statute. All agreements to sell two publica- 
tions only at a single price are rendered criminal, even though 
the price set for the combination is substantially less than the 
sum of the usual prices of the single publications when sold 
separately. Thus many agreements between publishers and 
agents which are for the purpose of establishing so-called club 
rates, often most advantageous to the public, would seem to be 
rendered illegal. 

Section 3 makes it unlawful for any person to offer for sale 
any combination of two or more publications at any price 
however low unless each publication is also ofltered for sale 
separately at its current price. Thus dealers in one kind of 
property are forbidden to sell their wares in combination when 
dealers in other kinds of property are permitted to sell their 
goods as they please. 

Plainly, these sections, if enacted, would impair the freedom 
jf contract and deny equal protectioil of our laws to certain 
3f our citizens. Therefore, they come within the limitations of 
:he Fourteenth Amendment to the United States Constitu- 
tion and the Declaration of Rights of the Constitution of 
Massachusetts, unless they can be supported as reasonable 
•egulations under the police power. This power is defined by 
Part II., chapter I., section I., article IV. of the Constitution 
>f Massachusetts as the power " to make, ordain, and establish, 
[II manner of wholesome and reasonable orders, laws, statutes, 
nd ordinances, directions and instructions, either with penalties 
r without; so as the same be not repugnant or contrary to this 
onstitution, as they shall judge to be for the good and welfare 
f this commonwealth, and for the government and ordering 
hereof, and of the subjects of the same. . . ." 
Regulations enacted under this power, particularly those 
hich impose burdens upon a limited class of our citizens, 
lust be reasonably directed toward the preservation of the 
ublic health, the public safety, the public morals, and, to a 
lore limited extent, the public welfare. Under the guise 



)S8 OPINIONS OF THE ATTORNEY-GENERAL. 

of the police power the General Court cannot impose upon 
one class of our people special burdens which, when tested by- 
sound reason, can be found to perform no reasonable service 
in advancing those fundamental public interests. 

The publishing and the selling of newspapers and periodicals 
are not public callings. Persons engaged in those callings 
have the right to sell or to refuse to sell to whom they will. 
It is doubtful if the General Court would have any consti- 
tutional authority to regulate the prices at which such publi- 
cations should be sold. They are not necessaries of life, and 
no person has any inherent right or privilege to buy them at 
any price singly or in combination. The bill discloses, and 
I am able to perceive, no reasonable basis for placing persons 
engaged in this business in a class by themselves and imposing 
upon them special burdens not imposed upon persons engaged 
in the production, distribution and sale of other commodities. 
This classification seems to me to bear no relation to the public 
health, safety, morals or the general welfare within the meaning 
of the police power. 

I therefore reply to your order that in my opinion, for the 
reasons above stated, the bill printed as House Bill 4.37 would 
be unconstitutional if enacted. 



Co-operative Banks — Loans to Shareholders — ^Matured 

Shares. 

A co-operative bank is not authorized to execute loans to shareholders on matured 
shares held in accordance with St. 1912, c. 623, § 17, as amended by St. 
1914, c. 643, § 6. 

Smmis^foMr. You liavc rcqucstcd my opinion as to whether a co-operative 
March 19. bank is authorized to execute loans on matured shares belonging 

to a shareholder. 

The provisions of law relating to this subject are found in 

St. 1912, c. 623, § 17, as amended by St. 1914, c. 643, § 6, and 

§§ 22 and 25, which are as follows: — 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 3S9 

Section' 17. Whenever shares of a, given series reach tlie value of 
two hundred doUars, either by the paynaent of dues, the addition of a 
regular dividend or the addition of interest as hereinafter provided, 
they shall be deemed matured and all payments of dues thereon shall 
cease, and the owner of each unpledged share shall be paid out of the • 
funds of the corporation the matured value thereof; or if he shall so 
elect, and at the option of the directors, there may be entered on his 
pass book any number of shares that have matured, not exceeding ten, 
and such shares shall continue as matured shares in said corporation, 
subject to be withdrawn or retired as provided in sections fourteen and 
sixteen of this act, but at no time shall more than one half of the funds 
in the treasury be applicable to pajTnent of shares, either matured or 
unmatured or both, without the consent of the directors and except as 
hereafter provided in section eighteen. . . . 

Sectiox 22. A borrowing shareholder shall, in addition to dues on 
shares, pay monthly interest, or interest and premium, on his loan at 
the determined rate until his shares reach their matured value, or the 
loan has been repaid; and when said matured value is reached, the shares 
shall be cancelled, the loan discharged and the balance, if any, due upon 
the shares, shall be paid to the member. 

Section 25. Loans may be made upon unpledged shares to an amount 
not exceeding ninety-five per cent of their withdrawal value at the time 
of the loan, and for every such loan a note shall be given, accompanied 
by a transfer and pledge of the shares borrowed upon. • 

Co-operative banks are not ordinary institutions for savings, 
and are not intended to be banks where money ma}' remain 
on deposit indefinitely, although, under certain conditions, 
ten shares are permitted to be continued in the corporation as 
matured shares. 

Tlie purpose of co-operative banks may be said to be to 
eflPect the saving of money by a compulsory method as dis- 
tinguished from the permissive policy maintained by other 
banks. The only departure from this purpose is the provision 
in the statute giving the right to hold ten matured shares as 
ibove stated. 

The statute does not specifically provide for loans on these 
natured shares, and in my opinion does not authorize such 
loans by implication. 



390 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the State 
Department 
of Health. 

1915 
March 22. 



Boards of Health of Cities and Towns — Power to 
Regulate Trade — Ice Cream. 

Under the provisions of R. L., c. 56, § 70, as amended by St. 1912, e. 448, boards 
of health of cities and towns may, subject to the approval of the State Depart- 
ment of Health, make and enforce rules and regulations governing the manu- 
facture, care and sale of ice cream. 

Your request for an interpretation of chapter 448 of the Acts 
of 1912, as relating to the authority of local boards of health 
over the manufacture, sale and care of ice cream, has been given 
consideration. 

The statute referred to is an amendment of section 70 of 
chapter 56 of the Revised Laws, which chapter relates to the 
regulation of trade. The original section was altered by adding 
another paragraph. This statute as amended is as follows: — 

Boards of health of cities and towns, by themselves, their officers 
or agents, may inspect the carcasses of all slaughtered animals and all 
meat, fish, vegetables, produce, fruit or provisions of any kind found in 
their cities or towns, and for such jDurpose may enter any building, en- 
closure or other place in which such carcasses or articles are stored, kept 
or exposed for sale. If, on such inspection, it is found that such carcasses 
or articles are tainted, diseased, corrupted, decayed, unwholesome or, 
from any cause, unfit for food, the board of health shall seize the same 
and cause it or them to be destroyed forthwith or disposed of otherwise 
than for food. All money received by the board of health for property 
disposed of as aforesaid shall, after deducting the expenses of said seizure, 
be paid to the owner of such property. If the board of health seizes or 
condemns any such carcass or meat for the reason that it is affected with 
a contagious disease, it shall immediately give notice to the board of 
cattle commissioners of the name of the owner or person in whose pos- 
session it was found, the nature of the disease and the disposition made 
of said meat or carcass. 

Boards of health of cities and towns may make and enforce reasonable 
rules and regulations, subject to the approval of the state* board of 
health, as to the conditions under which all articles of food may be kept 
for sale, or exposed for sale, in order to prevent contamination thereof 
and injury to the public health. Before the board of health of any city 
or town submits such rules and regulations to the state board of health 
for approval it shall hold a public hearing thereon, of which notice shall 
be given by publication for two successive weeks, the first publication to 
be at least fourteen days prior to the date of the hearing, in a newspaper 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 391 

published in such city or town, or, if none is so published, in a newspaper 
published in the county in which such city or town is located. Any 
person affected by such rules and regulations, in the form in which they 
are presented to the state board of health for approval, may appeal to 
the said board for a further hearing, and said board shall not grant its 
approval to rules and regulations concerning which such an appeal has 
been taken until it has held a public hearing thereon, advertised in the 
manner specified above in this section with reference, to hearings before 
boards of health in cities and towns. 

Naturally the question arises because the first paragraph 
of the section gives authority to the boards of health to inspect 
slaughtered animals, meat, fish, vegetables, produce, fruit or 
"provisions of any kind," while the added paragraph empowers 
such boards to make and enforce regulations as to the condi- 
tions under which all articles of food may be kept for sale. 
Do the specific articles mentioned in the first paragraph of the 
section limit the words "all articles of food" in the last para- 
graph? 

It has been held by a former Attorney-General that these 
w^ords do not include milk, and therefore local boards of 
health have no authority under this section to make regula- 
tions dealing with that commodity. Sections 51 to 67, in- 
clusive, of said chapter 56 of the Revised Laws are milk 
regulations, and the former Attorney-General was of the / 

opinion that these sections deal with the milk question so 
effectively that sections 70 to 76, inclusive, do not extend 
the authority of boards of health to milk, since the word 
"milk" was not used in the following sections. This ruling, 
however, was very properly limited to milk. 

Ice cream is not covered by the statute on regulation of 
trade, unless section 70, as amended, applies to this com- 
modity. Ice cream may be classified under the head of 
"provisions," and it also comes within the definition of a food. 
Hence, I am of opinion that local boards of health may make 
and enforce rules and regulations governing the manufacture, 
care and sale of ice cream, subject to the approval of the State 
Department of Health. 



392 OPINIONS OF THE ATTORNEY-GENERAL. 



Statutes — General and Special — Codification — Special 
Statute not repealed by Codification of General 
Statutes — Boston Consolidated Gas Company. 

St. 1906, c. 422, entitled "An Act to promote the reduction of the price of gas in 
the city of Boston and its vicinity," generally known as the "sliding scale 
act," was not repealed or superseded by St. 1914, c. 742, entitled "An Act to 
consolidate the laws relative to the manufacture, distribution and sale of 
gas and electricity." 

Jf^Re'^rS""''^ By an order adopted by the House of Representatives on 
^^"mr*"* ]March 10, 1915, my opinion was requested as to whether 
March23. "chapter 422 of the Acts of the year 1906, entitled 'An Act to 

promote the reduction of the price of gas in the city of Boston 
and its vicinity,' and especially section 10 of said chapter, was 
repealed or superseded by chapter 742 of the Acts of the year 
1914, entitled 'An Act to consolidate the laws relative to the 
manufacture, distribution and sale of gas and electricity.' " 

The 1906 act, generally known as the "sliding scale act," 
provided a method of fixing the price of gas sold by the Boston 
Consolidated Gas Company and of the dividends to be paid by 
that company. The 1914 act is a consolidation and revision 
of the general laws relative to the manufacture, distribution and 
sale of gas and electricity. Section 199 thereof repeals by 
express mention seventy-two acts and sections of acts. It is 
significant that chapter 422 of the Acts of 1906 is not included 
in this list. 

It has been suggested that section 199 repeals chapter 121 
of the Revised Laws "and all acts in amendment thereof," 
and that section 10 of chapter 422 of the Acts of 1906 is an 
amendment of that chapter. It may be that in discussing the 
meaning of the word "amendment," as used in other con- 
nections, courts have used at times language wliich in its 
broadest sense might include such a case as this. 

Bouvier defines "amendment" as an alteration or change 
of something proposed in a bill or established as law. The 
Century Dictionary says : — 

The act of freeing from faults; the act of making better, or of changing 
for the better; correction; imiorovement; reformation. An alteration 



HENRY C. ATTVVILL, ATTORNEY-GENERAL. 393 

of a legislative or deliberative act or in a constitution; a change made in 
a law either bj' way of correction or addition. 

The term "amendment" implies such an addition or change within 
the lines of the original instrument as will effect an improvement or 
better carrj'' out the purposes for which it w'as framed. Livermore v. 
Waite, 102 Cal. 113. 

Section 10 of chapter 422 of the Acts of 1906 hardly comes 
within such definitions. Furthermore, it has been expressly 
held that neither extending a general law to a corporation not 
included within it nor exempting a particular municipal cor- 
poration from the terms of a general law is an amendment 
thereof. Quinlan v. //. ct- T. C. Rij. Co., 89 Tex. 356; Barron 
V. Smith, 108 IMd. 317. 

I am of the opinion that said section 10 was not an amend- 
ment of R. L., c. 121, in the sense here intended. 

Section 199 also repeals "all other acts and parts of acts 
inconsistent herewith." 

Without the express words an absolutely inconsistent or 
repugnant pro^'ision of earlier laws Avould be superseded or 
repealed, although such repeal by implication is not favored by 
the courts. Copeland v. Spri7i(jfield, 166 Mass. at 504. In- 
I deed, it has been said that the insertion of a clause like that 
I quoted above adds nothing to the legal effect consequent upon 
the passage of the new act. The Hickory Tree Road, 43 Pa., 
139, 142. 

The question here is whether, in view of these principles and 
'he language of the 1914 act, the earlier special law is incon- 
ustent with the later general one, and therefore repealed. 

It is to be observed that a special law as to one locality 
)r corporation is not necessarily inconsistent Avith a different 
ule applicable to localities or corporations generally. Things 
rhich can stand together harmoniously and are not contra- 
lictory are consistent. If other sections such as are found in 

he 1906 act had been included in the 1914 act, after the 

• neral provisions in sections 43, 162 and 163, it could not 

ell have been said that the consolidated act was inconsistent 

r self-contradictorv. 



394 OPINIONS OF THE ATTORNEY-GENERAL. 

Cases may be found which hold that the passage of a general 
law containing such a repeal clause as is here found operates as 
a repeal of special laws upon the same subject. The cases of 
People V. Wenzel, 105 Mich. 70, O'M alley v. County, 3 Kulp 
(Pa.), 41, 46, and Brown v. Mullica Township, 48 N. J. L. 447, 
are examples of this. 

Nevertheless, the general rule is otherwise, and it is well 
stated in the last-named case, a§ follows: — ■ 

It has been well settled in this State that a general law on a subject- 
matter which has been provided for in certain localities by special laws 
will not, although it contain a general repealer of acts inconsistent with 
it, annul or alter the special provisions in those localities. But if the 
general law expressly repeals the special laws, or shows by implication a 
manifest intent to supersede their provisions, the latter must yield. 

This intention is to be gathered from the language of the 
entire act, construed in the light of its history. In constru- 
ing an act, "the title of the act, the objects to be accom- 
plished, the other provisions found in connection with those 
under especial consideration, the provisions and arrangement 
of the statutes which were amended, the mode in which the 
embarrassing words were introduced, as shown by the journals 
and records, the history of the times, and especially of prior 
legislation upon the same general subject, may all be con- 
sidered." {Simpson v. Story, 145 Mass. 497, 498.) 

Where a general law is passed for the first time there is much 
more reason for holding that prior special acts are repealed 
than in a case of codification and revision. In the former 
case it is far easier to discover a legislative purpose to repeal 
special provisions, because the Legislature is then for the first 
time declaring that it is making a law applicable to all, and 
thus it may more naturally be construed to exclude the idea 
of special laws continuing. Where, however, a general and a 
special law have been in existence, working harmoniously side 
by side, the re-enactment in codification of the general law, 
either in identical terms or with some perfecting amendments, 
furnishes little, if any, ground for such argument. 



J 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 395 

At the time of the passage of the 1906 act and throughout 
the time of its operation, there were in force and effect general 
laws covering the same subjects as those portions of the 
codification which could be argued to be inconsistent with 
the 1906 act, and for large part in the same language. This 
is especially true of sections 162 and 163, which are re-enact- 
ments of R. L., c. 121, §§ 34 and 35, referred to in section 10 
of chapter 422 of the Acts of 1906. 

Section 200 of the 1914 act, adopting in general the law as 
laid down in Wright v. Oakley, 5 Met. 400, provides: — 

The pro\dsions of this act, so far as they are the same as existing 
statutes, shall be construed as a continuation thereof and not as new 
enactments, and a reference in a statute which has not been repealed 
to provisions of law which have been revised and re-enacted herein, 
shall be construed as applying to such provisions as so incorporated in 
this act. 

This section makes provision whereby both acts may work 
in harmony with each other. The enactment of sections 162 
and 163 was not in any sense the making of a new law but 
merely a continuation of the law from v.hich the 1906 act 
expressly exempted the Boston Consolidated Gas Company. 
1 The history of the 1914 act is especially enlightening. In 
1912, by chapter 51 of the Resolves, the Legislature directed 
I the Board of Gas and Electric Light Commissioners "to revise, 
I consolidate and arrange the general laws of the Commonwealth 
1 pertaining to the manufacture, transmission, distribution and 
sale of gas and electricity, and to corporations engaged therein, 
not including street railway, telephone or telegraph companies, 
ind in connection therewith to consider the expediency of 
additional legislation afifecting the relation of such corporations 
:o the public and to one another, and of extending the pro- 
visions of law for supervision and regulation to any or all of 
hem." In 1913 that Board recommended certain extensions and 
•hanges of the existing general laws, with a bill codif3'ing those 
aws and embodying the extensions and changes recommended. 
?hese recommendations did not mention the extension of the gen- 



396 OPINIONS OF THE ATTORNEY-GENERAL. 

eral laws to the Boston Consolidated Gas Company so far as it 
was exempted by the 1906 act. The bill contained a repealing 
section substantially in the words that now appear. After some 
consideration and alteration the Legislature of 1913 referred 
this matter to the next General Court. 

In 1914, upon motion, it was taken from the files and re- 
ferred to the Committee on Public Lighting. This committee 
inserted the word "general" in section 199, so that the re- 
pealing clause in question read, "and all other general acts 
and parts of general acts." This clause remained in this form 
throughout its consideration in the Senate and until referred 
to the House Committee on Bills in the Third Reading, which 
committee struck out the word "general" and reported the bill 
to the House without specific mention of its action in so doing. 
In view of House Rule 26 it cannot be that the committee in- 
tended to make " any change in the sense or legal effect, or 
any material change in construction" of the act. Neither can 
it be thought that the committee intended to exceed its powers; 
and, especially in a bill of such length, the members of the 
Legislature undoubtedly acted in the later stages of the passage 
of the act on the presumption that it was the same in effect 
as before its reference to the House Committee on Bills in the 
Third Reading. 

In these events there is nothing to indicate an intention to 
repeal this special act, but, on the contrary, the insertion of the 
word "general" by the committee which considered the bill 
on its merits, and the presence of that word during the passage 
of the act up to the time of reference to the House Committee 
on Bills in the Third Reading, shows a clear intention not to do 
so. 

I am of opinion that the legislative purpose was clearly 
disclosed by the resolve authorizing the codification; that such 
act directed the Board to deal primarily with general statutes, 
and that the history of the passage of the codification, taken 
together with its phraseology, indicates no intention upon the 
part of the Legislature to re])eal the provisions of chapter 422 
of the Acts of 1906. 



i.jt 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 397 

Accordingly, I am of the opinion that chapter 422 of the 
Acts of the year 1906 was not repealed or superseded by 
chapter 742 of the Acts of the year 1914. 



Fire Protection — Storage of Inflammable Fluids — 
Gasoline in Automobile Tanks — Storage in Bulk. 

Neither St. 1911, c. 477, nor any other statutes then in force concerning the storage 
of inflammable fluids were repealed by St. 1914, c. 795, entitled "An Act to 
provide for the better prevention of fires throughout the metropolitan dis- 
trict," and, accordingly, gasoline may still be kept without license or permit 
in the tanks of automobiles in those buildings in which it could be so kept 
prior to the passage of the last-mentioned statute, but in no others. 

Inflammable fluids kept in unopened original receptacles, other than barrels, no 
one of which contains more than ten gallons, are not kept in bulk within the 
meaning of St. 1914, c. 795, § 6. 

Varnishes and shellacs which are of substantially the same inflammable character 
as the least inflammable article enumerated in St. 1914, c. 795, § 6, come 
within the provisions of that section. 

In your letter of the 17th inst. you request my opinion as to to the Fire 
whether the provisions of section 6 ^ of chapter 795 of the Acts Commissioner. 
^f 1914 permit gasoline to be kept in the tank of an automobile >iarchj9. 
*vithout regulation by the Fire Prevention Commissioner, and 
f so, do the provisions of said chapter 795 repeal the provisions 
)f chapter 477 of the Acts of 1911; and also my opinion as to 
vhether the phrase "in bulk," in said section, includes varnishes, 
I hellacs, etc., in cans, and if it does, is the size of the can a 
Qaterial element. In order properly to determine the questions 
laised, consideration must be given to the state of the law in 
I elation to explosives and inflammable fluids at the time of the 
•assage of chapter 795 of the Acts of 1914 and the various acts 
stablishing the law. 

By chapter 370 of the Acts of 1904 it was provided that no 

' Reads as follows: — 

Section 6. No paint, oil, benzine, naphtha, or other inflammable fluid shall be kept stored 
bulk or barrel otherwise than in the tank of an automobile or motor boat or stationary engine 
total quantity exceeding ten gallons in any part of any building used for habitation, or within 
ty feet of any building used for dwelling purposes, unless such paint, oil, or other inflammable 
id is enclosed within a fireproof room or structure, constructed and arranged to the satisfaction 
the commissioner, and no paint, oil, benzine, naphtha, or other inflammable fluid, except for 
mestic purposes shall be kept, used, stored or sold in any part of any building used for habita- 
n, unless a permit therefor has first been obtained from the commissioner under such terms 
d conditions as he may prescribe. 



398 OPINIONS OF THE ATTORNEY-GENERAL. 

building should thereafter be erected or used for the keeping, 
storage, manufacture or sale of explosives or inflammable 
fluids without a license granted by the mayor and aldermen 
or selectmen after a public hearing and a permit granted by 
the fire marshal's department of the District Police. The act 
provided, however, that any building lawfully used for any of 
said purposes at the time of its passage could still be con- 
tinued in such use without a license or permit, but should be 
subject to the regulations of the fire marshal's department for 
protection against fire or explosion. 

By chapter 502 of the Acts of 1908 it was provided that any 
building or other structure once used lawfully for any of said 
purposes could be continued so to be used from year to year 
if the owner or occupant thereof should, while such use con- 
tinued, annually file for registration with the city or town clerk 
of the city or town where such building or other structure was 
situated, and with the chief of the District Police or the official 
designated by him to grant permits in such city or town, a 
certificate reciting such use and occupancy. 

By chapter 477 of the Acts of 1911 it was provided that 
gasoline in an automobile or motor vehicle where more than 
two such vehicles were kept should be deemed to be a keeping 
of gasoline in a building under the provisions of chapter 370 
of the Acts of 1904, and amendments thereof; provided, how- 
ever, that it should not apply where not more than two au- 
tomobiles were kept in a building erected prior to the enact- 
ment of said chapter, i.e., Maj^ 26, 1911, if such building or 
any part thereof was not used either for human habitation 
or for holding gatherings of, or giving entertainments, in- 
struction or employment to, more than twenty persons. 

By chapter 223 of the Acts of 1910 it was provided that 
''the detective and fire inspection department of the district 
police may by regulation prescribe the amount of explosives, 
crude petroleum or any of its products, or any other inflam- 
mable fluid or compound, that may be kept for private use in 
a building or other structure without a license, permit or 
registration." 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 399 

In substance, therefore, at the time of the passage of chapter 
795 of the Acts of 1914 the keeping, storage, manufacture and 
sale of explosives or inflammable fluids in a building were 
prohibited unless a license was first granted by the mayor 
and aldermen or selectmen after a public hearing and a permit 
was granted by the fire marshal's department of the District 
Police, except that no permit or license was required for the 
keeping of explosives or inflammable fluids for private use in 
a building or other structure where regulations were established 
by the District Police prescribing the amount thereof. The 
exceptions to this general law were the keeping, storage, 
manufacture and sale of explosives and inflammable fluids 
in buildings that were lawfully used for such purposes prior 
to the passage of chapter 370 of the Acts of 1904, which 
could be continued to be used under the provisions of law, and 
the keeping of not more than two automobiles in any building 
erected prior to May 26, 1911. Thus, at the time of the 
passage of chapter 795 of the Acts of 1914 there were many 
buildings in the metropolitan district which were being lawfully 
used for the keeping, storage, manufacture and sale of ex- 
plosives and inflammable fluids; and, in buildings in which 
I automobiles in excess of two were kept prior to the passage of 
Chapter 370 of the Acts of 1904, more than two automobiles 
1 20uld still be continued to be kept without any license or permit 
:herefor; and in all buildings erected prior to May 26, 1911, 
jiot used either for human habitation or for holding gatherings 
j)f, or giving entertainments, instruction or employment to, 
JQore than twenty persons, not more than two automobiles 
pould be kept, and the gasoline in their tanks did not come 
vithin the provisions of the general law. 
By the passage of chapter 795 of the Acts of 1914 the Leg- 
dature, in my judgment, did not intend to allow the keep- 
ig of automobiles with gasoline in their tanks in greater 
umbers and in buildings other than those in which they 
>uld be kept at the time of its passage. To construe the 
t otherwise would be to interpret an intention of the Leg- 
lature to authorize the keeping of gasoline in automobiles 



400 OPINIONS OF THE ATTORNEY-GENERAL. 

under less stringent regulations in the metropolitan district, 
where the liability of fire and explosion is greater and more 
stringent regulations are needed, than in other parts of the 
Commonwealth. 

It is my opinion that the Legislature, by the passage of 
said chapter 795, had no intention of repealing the existing law 
applicable to the metropolitan district in relation to explosives 
and inflammable fluids, but intended that said chapter 795 
should be in addition to the law already in operation. This 
view is given additional force by reason of the provisions of 
section 3 of said chapter 795, that all existing powers, in what- 
ever officers, councils, bodies, boards or persons, other than 
the General Court and the judicial courts of the Commonwealth, 
they may be vested, to license persons or premises, or to grant 
permits for or to inspect or regulate or restrain the keeping, 
storage, use, manufacture or sale of explosives and inflammable 
fluids, shall be transferred to and vested in the Fire Prevention 
Commissioner. 

I am therefore of opinion that in all buildings or other 
structures over which the District Police had the power of 
supervision and regulation prior to the passage of chapter 795 
of the Acts of 1914, the Fire Prevention Commissioner lias 
now the same power; and that as to all buildings, including 
those in the metropolitan district in which before the passage 
of that act gasoline and explosives could be kept without a 
permit or license, no paint, oil, benzine, naphtha or other 
inflammable fluid shall be kept or stored therein in bulk or 
barrel, otherwise than in the tank of an automobile or motor 
boat or stationary engine, in total quantity exceeding ten 
gallons, in any part of such building if used for habitation, 
nor within fifity feet of any building used for dwelling pur- 
poses, unless such paint, oil or other inflammable fluid is en- 
closed within a fireproof room or structure constructed and 
arranged to the satisfaction of the commissioner; and that, ni 
any building used for habitation, no paint, oil, benzine, naphtha 
or other inflammable fluid, except for domestic purposes, shall 



\ki>. 



J 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 401 

be used, stored or sold in any part thereof without a permit 
from the commissioner. 

Accordingly, I am of opinion that chapter 477 of the Acts 
of 1911 was not repealed by the provisions of chapter 795 of 
the Acts of 1914, and that gasoline may still be kept in the 
tanks of automobiles, without license or permit, in those build- 
ings in which it could be so kept prior to the passage of said 
chapter 795, but in no others. 

As to an interpretation of the phrase "in bulk," I am of 
the opinion that where gasoline or other inflammable fluids 
are kept in unopened original receptacles other than barrels, 
no one of which contains in excess of ten gallons, the inflam- 
mable fluids are not being kept in bulk, within the meaning of 
^he act, and, therefore, that the size of the can or receptacle 
i n which the inflammable fluid is kept is a material element. 
! Whether the provisions of section 6 of said chapter 795 
I nclude varnishes, shellacs, etc., in my judgment is depend- 
' ;nt upon whether they are of substantially the same inflam- 
nable character as the least inflammable article enumerated 
1 n the section. If they are they come within the provisions of 
he act. 



NSURANCE — Fraternal Beneficiary Insurance — So- 
cieties LIMITING Membership to Certain Classes — ■ 
When subject to Insurance Law^s. 

I domestic fraternal beneficiary corporation which limits its membership to certain 
classes of persons, as provided in St. 1911, c. 628, § 12 b, and pays a death 
benefit in excess of S200, does not come within the exemption provided by 
section 29 6, and must conform to the insurance laws of the Commonwealth. 

You have requested my opinion as to whether a fraternal To the 

„ . . PI- Insurance 

snenciary corporation, referred to in section 29 a of chapter Commissioner. 
-^8 of the Acts of 1911, which pays a death benefit of S500, is ^prji 5 . 
cempted under the provisions of section 29 b from otherwise 
)nforming to the provisions of the insurance statutes. 



402 OPINIONS OF THE ATTORNEY-GENERAL. 

Section 29 b, as amended by section 5 of chapter 617 of the 
Acts of 1913, is as follows: — 

A domestic fraternal beneficiary society, as defined in section one of 
this act, whether incorporated or unincorporated, which limits its mem- 
bership as provided in division b of section twelve; or which limits its 
membership to the members and ex-members of any social organization 
having a lodge system and secret form of work, or a secret order or fra- 
ternity, which order or fraternity operates on the lodge system with a 
representative form of goverrmient and grants insurance benefits as 
incidental only to the work of the order or fraternity; or a purely chari- 
table association or corporation existing on the twenty-third day of May, 
nineteen hundred and one, any one of wliich pays a death or funeral 
benefit limited to not more than two hundred dollars, disability benefits 
not exceeding ten dollars per week, or any or all of such benefits, and which 
is not conducted as a business enterprise or for profit, . . . may transact 
business in this cormnonwealth without conforming to the provisions of 
this act or other acts relating to insurance companies, except division b 
of this section; . . . 

You state that the attorney for the company in question 
argues that inasmuch as the preliminary clauses of section 
29 b are separated by semicolons, the words "any one of 
which pays a death or funeral benefit limited to not more than 
two hundred dollars," etc., merely apply to "a purely chari- 
table association or corporation existing on the twenty-third 
day of May, nineteen hundred and one." Such a construc- 
tion would hardly seem reasonable even if chapter 628 of the 
Acts of 1911 were the first legislation on this subject, as the 
words "an}^ one of" would be surplusage if the interpretation 
contended for were correct and would furnish a most awkward 
mode of expression for that thought. 

However, the 1911 act is but one of a rather lengthy series 
of enactments on this subject. The words in question seem 
first to appear in St. 1899, c. 442, § 17, which is as follows: — 

Any fraternal beneficiary corporation, or any association that limits 
its membership to a particular order, class or fraternity, or to the em- 
ployees of towns, cities, the Commonwealth, or the federal government, 
or of a designated firm, business house or corporation, or any secret 
fraternity or order, or any existing purely charitable association or cor- 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 

poration, any one of which pays a death or funeral benefit not exceeding 
two hundred dollars, . . . 

Under this clause the contention made is clearly untenable, 
and the limitation of $200 applies to each of the kinds of as- 
sociation mentioned. This interpretation is equally required 
by the later enactments. See St. 1901, c. 422, § 17; R. L., c. 
119, § 12; St. 1903, c. 332. 

Under these circumstances it seems entirely plain that a 
domestic fraternal beneficiary corporation which limits its 
membership as provided in division b of section 12 and pays 
a death benefit in excess of $200 does not come within the 
exemption provided by said section 29 b. 



403 



State Board of Health — Creation — Effect on Existing 
Health Regulations. 

Rules and regulations established under authority of R. L., c. 75, § 113, and the 
penalties for the infringement thereof established by R. L., c. 75, § 122, were 
not repealed or affected by St. 1914, c. 792, entitled "An Act to create a 
State Department of Health and to amend the public health laws." 

You have requested my opinion as to whether chapter 792 To the state 

, . Department 

of the Acts of 1914 in effect repealed the regulations made *'^i^|'^*''- 
under section 113 of chapter 75 of the Revised Laws or took ^p"^ ^ - 
away the penalty for infringement of rules and regulations made 
under said section. 

j Chapter 792 of the Acts of 1914, entitled "An Act to create 
a State Department of Health and to amend the public health 
laws," in general provides for a State Department of Health 
which "shall exercise all the powers and perform the duties 
now conferred and imposed by law upon the state board of 
lealth," which latter Board was abolished by this act. Sec- 
:ion 2 provides for the appointment of a Commissioner of 
^ealth, and that "his powers and duties shall be to administer 
he laws relative to health and sanitation and the regulations of 
he department; ..." Section 3 provides for a public health 



404 OPINIONS OF THE ATTORNEY-GENERAL. 

council "to make and promulgate rules and regulations; to 
take evidence in appeals; to consider plans and appointments 
required by law; to hold hearings; . . . but it shall have no 
administrative or executive functions." Sections 4 and 5 pro- 
vide for divisions of the department and the appointment of 
directors of divisions and district health officers. The latter 
"shall have all the powers and perform the duties now pro- 
vided by law for inspectors of health and further shall, under 
the direction of the commissioner of health, perform such duties 
as may be prescribed by, and shall act as the representative 
of the commissioner of health and under his directors shall 
secure the enforcement within his district of the public health 
laws and regulations." 

Section 8 repeals sections 1, 2 and 3 of chapter 75 of the 
Revised Laws "and all other acts and parts of acts inconsistent 
herewith." 

The sections expressly mentioned relate solely to the ap- 
pointment and administration of the State Board of Health. 

It will be seen that the new act is in all essential details 
an administrative provision. There are no sections creating 
or purporting in terms to change the public health laws, as 
such. If there had been any intention to enact such a radical 
provision as the abolition of all regulations previously made 
by the State Board of Health, there is every reason to suppose 
that explicit language to that effect would be found. 

There is nothing in chapter 792 of the Acts of 1914 incon- 
sistent with allowing valid rules and regulations previously 
made by the State Board of Health to continue in effect, and 
the express provision for enforcement by the new officers of 
the public health laws and regulations indicates an intention 
that they shall continue. 

I am of the opinion that rules and regulations established 
under authority of section 113 of chapter 75 of the Revised 
Laws are not affected by St. 1914, c. 792, nor is the penalty 
for infringement of such rules and regulations established by 
R. L., c. 75, § 122, affected thereby. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 405 

Fire Prevention — Storage of Petroleum in Building or 
Other Structure — Requirement of License. 

R. L., c. 102, § 113, permitting the storage of crude petroleum or any of its products 
in certain buildings without the requirement of a license, was repealed by 
St. 1904, c. 370. 



You have requested information relative to section 113 of Prevention'' 
chapter 102 of the Revised Laws, and as to whether the same °^j^'®®""^^''- 
has been repealed by subsequent enactments. ' 

Section 113 provides that "crude petroleum or any of its 
products may be stored ... in detached and properly ven- 
tilated buildings," under certain restrictions, and makes no 
provision for licensing said structures. St. 1904, c. 370, § 3, 
apparently repeals section 113, as it provides that no building 
shall be erected or used in any city or town for the keeping, 
storage, etc., of inflammable fluids unless the mayor and 
aldermen or selectmen have granted a license therefor after a 
public hearing. St. 1904, c. 370, § 3, was amended by chapter 
502 of the Acts of 1908 by the addition of the words "or other 
structure," so as to read as follows: "No building or other 
structure shall be used in any city or town," etc. 

It is to be noted that by the provisions of section 5 of 
chapter 370 of the Acts of 1904 so much of chapter 102 of 
the Revised Laws as was inconsistent with said chapter 370 
was repealed. 

Accordingly, I am of the opinion that section 113 of chapter 
102 of the Revised Laws was repealed by the provisions of 
chapter 370 of the Acts of 1904 and acts in amendment thereof 
and in addition thereto. 



406 OPINIONS OF THE ATTORNEY-GENERAL. 



Registered Osteopath — Death Certificate. 

An osteopath registered under St. 1909, c. 526, may not legally furnish the death 
certificate required to be furnished by physicians under R. L., c. 29, §§10 and 
12. 



To the Board 



April 8. 



of'Re^trrt'ion Yoli havc requested my opinion as to whether an osteopath 
"^1915 '"°^' registered under St. 1909, c. 526, may legally furnish the 

death certificate required of physicians under R. L., c. 29, 

§§ 10 and 12. 
R. L., c. 29, § 12, provides: — 

Every undertaker or other person who has charge of a funeral shall 
forthwith obtain the physician's certificate required by section ten. 

Section 10 (as amended by St. 1910, c. 322, § 2) provides: — 

A physican shall forthwith, after the death of a person whom he has 
attended during his last illness, at the request of an undertaker or other 
authorized person or of any member of the family of the deceased, furnish 
for registration a standard certificate of death, stating to the best of his 
knowledge and belief the name of the deceased, his supposed age, the 
disease of which he died, defined as provided in section one of this chapter, 
where contracted, the duration of his last illness, when last seen alive by 
the physician, and the date of his death. . . . 

R. L., c. 78, § 38, provides that no burial of a human body 
or removal of the same shall take place without a permit 
from the proper authorities, and for the issuance of a certifi- 
cate by certain officials in a case of a death where there was 
no attending physician. 

St. 1909, c. 526, permits the registration of osteopaths. Sec- 
tion 5 speaks of "the registration and practice of osteopathic 
physicians;" but it is expressly provided by section 3 that 
persons registered under that act shall not be permitted "to 
hold themselves out, by virtue of such registration, as and for 
other than osteopaths." 

I am aware that it has been held that an osteopath is a 
physician, as the words are used and defined in certain stat- 
utes {Bandel v. Bepariment of Health of City of Netv York, 127 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 407 

App. Div. 382; 193 N. Y. 133), while under different statutes 
the opposite result has been reached (Nelson v. State Board of 
Health, 108 Ky. 769). 

Our statutes have long used the word "physician," and 
for many years a physician, in order lawfully to practice, must 
have been duly registered. R. L., c. 76, § 3, provides that 
after examination, if found qualified, an applicant "shall be 
registered as a qualified physician." 

In view of the express provision of St. 1909, c. 526, § 3, that 
an osteopath shall not hold himself out, by virtue of his regis- 
tration, as and for other than an osteopath, it would seem 
that he is prohibited from attempting or purporting to act 
as a physician in giving the death certificates required by 
law. 

I am of the opinion that a registered osteopath cannot legally 
sign such a death certificate. 



Constitutional Law — Boston Elevated Railway Com- 
pany — Locations and Right to maintain Elevated 
Structure — Revocation — Regulation of Use of 
Highway. 

A proposed act requiring the Boston Elevated Railway Company to "remove and 
forever discontinue the use of that part of its elevated structure which extends 
from the junction of Washington and Castle streets to the entrance of the old 
Tremont street subway in the city of Boston" at its own expense would be 
unconstitutional, if enacted. 

St. 1894, c. 548, incorporating the Boston Elevated Railway Company and au- 
thorizing it to construct and operate lines ol elevated railway upon certain 
specific locations, and particularly section 19 thereof, providing that "the 
locations of or right to maintain any elevated lines or structures of the Boston 
Elevated Railway Company shall not be subject to revocation except" as 
prescribed in P. S., c. 112, §§7 and 8, constitutes a contract between that 
company and the Commonwealth that, at least for a period of twenty-five 
years, these locations and the right to maintain elevated lines and structures 
thereon shall not be revoked. 

So much of such proposed act as applies to the structure located across the 
right of way of the Boston & Albany Railroad and the New York, New Haven 
& Hartford Railroad Company would, if enacted, be unconstitutional as tak- 
ing property without compensation. 



408 OPINIONS OF THE ATTORNEY-GENERAL. 

The requirement of the proposed act, that the Boston Elevated Railway Company- 
shall remove the entire structure described therein at its own expense And 
without compensation, is not a reasonable police regulation in the interest 
of the public health, safety or morals. 

It is within the power of the General Court to determine that the Boston Elevated 
Railway Company has discontinued the use of that portion of the structure 
described in the proposed act which is within the limits of public ways; that 
it unreasonably interferes with the use of these ways by the public, and, by 
proper legislation, to require that company to remove it at its own expense 
and without compensation. 

To the'Senate. -,-1 ii • , p Pj1i>ii' i 

1915 i acknowledge receipt or a copy or the lollowmg order 
' passed by the honorable Senate: — 

Ordered, That the Attorney-General be required to furnish to the 
Senate his opinion upon the following important question of law: — 

Is it within the constitutional power of the General Court to require 
the Boston Elevated Railway Company to remove, at its own expense, 
and without compensation, and forever to discontinue a part of the 
elevated structure owned by it in the city of Boston, located in part upon 
a public highway, in part upon the right of way of a railroad corporation, 
and in part upon private land owned by said Boston Elevated Railway 
Company, which structure is not now used by said company and which, 
in the opinion of the General Court, is detrimental to the public welfare? 

This question is asked in reference to a bill pending in the General 
Court, being "An Act relative to the removal of certain elevated railway 
structures in the city of Boston," printed as House Document No. 1271, 
a copy of which is forwarded herewith for the information of the Attorney- 
General, and the Senate desires an opinion upon the constitutionality of 
said bill. 

The bill referred to in this order is as follows: — 

■ Section 1. The Boston Elevated Railway 'Company shall, in or 
within one year after the passage of this act, remove and forever dis- 
continue the use of that part of its elevated structure which extends 
from the junction of Washington and Castle streets to the entrance of 
the old Tremont street subway in the city of Boston. 

Section 2. Said structure being now obsolete, detrimental to the 
public welfare and a menace to public health, the expense in connection 
with its removal shall be borne by said company. 

The Boston Elevated Railway Company was incorporated 
and authorized to construct and operate lines of elevated rail- 
way upon certain specific locations by chapter 548 of the Acts 



1 .d 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 

of 1894. Section 8 of that statute provided in part as fol- 
lows : — 

The location, construction, maintenance or operation of said hnes of 
railway in any pubUc or private way shall be deemed an additional servi- 
tude and entitle lessees, mortgagees and other parties ha\dng an estate 
in such way or in premises which abut thereon, and who are damaged 
by reason of the location, construction, maintenance and operation of 
said lines of railway, to recover reasonable compensation in the manner 
herein pro^^ded. . . . 

Before any work of construction had been begun this statute 
was amended by chapter 500 of the Acts of 1897. By section 
3 of the last-mentioned statute certain additional locations 
were granted to the company, including, in the paragraph 
marked Fourth, the location involved in the bill submitted to 
me. Section 7 provides for the payment of damages sustained 
by any railroad by reason of the construction and operation 
of the elevated railway across the location or tracks of a 
railroad corporation. 

Section 10 authorizes the corporation to establish a fare 
not to exceed 5 cents for a single continuous passage, and 
provides that this sum shall not be reduced by the Legislature 
during the period of twenty-five years from and after the 
passage of the act. It further provides that during said 
period of twenty-five years no taxes or excises shall be im- 
I posed upon the corporation not imposed upon street railways 
1 in general, and then provides that " as compensation for the 
' privileges herein granted, and for the use and occupation of 
the public streets, squares and places, by the lines of elevated 
and surface railroad owned, leased and operated by it," the 
corporation shall pay a special franchise tax of a fixed per- 
centage of its gross earnings. 
Section 19 is as follows: — 

The locations of or right to maintain any elevated lines or structures of 
he Boston Elevated Railway Company shall not be subject to revoca- 
ion except in the manner and on the terms prescribed in sections seven 
nd eight of chapter one hundred and twelve of the Pubhc Statutes: 
•rovided, however, that any location upon which said corporation has not 



409 



410 OPINIONS OF THE ATTORNEY-GENERAL. 

constructed its railroad within ten years from the passage of this act 
shall be subject to revocation by the legislature; but no location upon 
which said corporation has begun the construction of its railroad within 
said period shall be subject to revocation if the same be completed within 
three years thereafter. 

The sections of the Public Statutes referred to in the sec- 
tion just quoted merely reserved to the Commonwealth the 
right to acquire by purchase or to take by eminent domain 
all the franchises and property of any railroad corporation. 
They have no application to any question presented by the 
order. 

Section 21 of the Acts of 1897 provides, in part, as follows: — 

. . . the provisions of chapter one hundred and thirteen of the Pub- 
lic Statutes or other general laws relating to the alteration or revoca- 
tion of the locations of street railway companies, shall not be deemed 
applicable to the locations or routes for elevated railroads granted to 
said corporation. . . . 

The elevated structure described in the bill before me was 
erected and operated, under these statutes. I am informed 
that various parties having estates in Castle Street and other 
public highways in which this structure is located, or in prem- 
ises abutting thereon, have been paid compensation by the 
Boston Elevated Railway Company for damages suffered by 
reason of the location, construction, maintenance and opera- 
tion of this line of railway in those streets, and that the Boston 
& Albany Railroad and the New York, New Haven & Hart- 
ford Railroad Company have been paid compensation for all 
damages suffered by them by reason of the construction and 
operation of the elevated railway across their locations and 
tracks. 

By chapter 534 of the Acts of 1902 the Legislature au- 
thorized the construction of the Washington Street tunnel and 
its lease to the Boston Elevated Railway Company for the 
period of twenty-five years. By section 11 that company was 
authorized to connect this tunnel with its elevated structure 
and w^as granted a location from the southerly end of the tunnel 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 411 

to its existing structure at the corner of Washington and 
Castle streets. Section 12 provided, in part, as follows: — 

. . . The company, upon removal of its elevated trains from the exist- 
ing subway, may discontinue the use of its elevated structures and 
locations connecting its elevated road therewith, and may sell any lands 
or other property acquii-ed for the purposes of such connection. . . . • 

The existing subway referred to is the Tremont Street subway. 

As recited in the order, the elevated structure referred to in 
the bill is located in part on public highways, in part across 
the right of way of certain railroad corporations, and in part 
upon private land of the Boston Elevated Railway Company. 
Thus the rights of the company vary somewhat with these 
different locations. 

It is well settled in this Commonwealth that locations in 
public highways granted to ordinary street railways are licenses 
only; that they are revocable at any time without the payment 
of compensation therefor. It is also clear that such locations 
do not impose additional servitudes upon highways, and that 
persons owning estates in a highway or in premises abutting 
thereon are not entitled to compensation by reason of such 
locations. 

The statutes under consideration, however, expressly de- 
clared that the location, construction, maintenance and opera- 
tion of the lines of the Boston Elevated Railway Company 
shall be deemed as imposing an additional servitude upon the 
highways in which they are situated. Accordingly, the com- 
pany has been required to compensate all persons whose prop- 
erty abuts upon such highways. It follows that the company 
has thus acquired as against these abutters perpetual easements 
in the adjoining highway to maintain and operate its elevated 
structures. Whether, in the absence of other provisions, it 
would have also obtained a similar right against the public need 
not now be determined. There is a strong probability that in 
such a case the locations of this company in public highways, 
like those of ordinary street railways, would be held to be mere 
licenses revocable at the pleasure of the Legislature. 



412 OPINIONS OF THE ATTORNEY-GENERAL. 

In view of the large expense involved in the erection of an 
elevated structure, this matter appears to have been given 
special consideration by the Legislature in framing chapter 
500 of the Acts of 1897. Section 10, after declaring that for 
a period of twenty-five years the Legislature should not reduce 
fares upon the lines of the company below 5 cents, or impose 
special taxes upon it not imposed upon other street railways, 
provided for the annual payment by it to the Commonwealth, 
for a period of twenty-five years, of a special franchise tax in 
addition to the tax imposed upon street railways in general. 
It is expressly declared that this special tax is to be paid "as 
compensation for the privileges herein granted, and for the 
use and occupation of the public streets, squares and places, 
by the lines of elevated and surface railroad owned, leased and 
operated by it." This tax is to be distributed among the 
different cities and towns where the company is operating 
upon a mileage basis. Then follows the provision of section 
19, that the locations of the company and its right to maintain 
its elevated structure "shall not be subject to revocation" 
except under the general right of the Commonwealth to pur- 
chase or to take by right of eminent domain. Only locations 
not built upon within ten years are excepted from this enact- 
ment. Subsequently, in section 21, it is enacted that the 
general laws concerning revocation of street railway locations 
shall not apply to this company. 

In my opinion these provisions were intended to and did in 
fact create a contract between the Commonwealth and the 
Boston Elevated Railway Company. By accepting the pro- 
visions of this statute and acting thereon the company con- 
tracted to pay, for a period of twenty-five years, a special 
franchise tax in addition to the burdens imposed upon other 
railways occupying public highways, and this payment was 
expressly declared to be compensation "for the use and occu- 
pation of the public streets, squares and places." The Com- 
monwealth, on its part, expressly obligated itself to exempt 
the company from the general laws relating to the alteration 
and revocation of locations of street railways, and formally 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 413 

covenanted that "the locations of or right to maintain any 
elevated lines or structures of the Boston Elevated Railway 
Company shall not be subject to revocation." The only right 
expressly reserved by the Commonwealth was its right under 
the general railroad laws then in force to purchase or to take 
by eminent domain for fair compensation all the franchises 
and property of any railroad. I am confirmed in my con- 
clusion that these provisions gave rise to a contract by an 
opinion rendered by my predecessor, Hon. Dana Malone, on 
Dec. 6, 1909, and printed as a part of House Document No. 
2116 for the year 1914. Other aspects of section 10, already 
referred to, have several times been held by former Attorneys- 
General to constitute a contract between this company and the 
Commonwealth. H. Op. Atty.-Gen. 261; H. Op. Atty.-Gen. 
426; HI. Op. Atty.-Gen. 400. 

Whether this contract of the Commonwealth not to revoke 
these locations and rights is to be regarded as limited to a 
period of twenty-five years from June 10, 1897, the date of the 
approval of the act of 1897, need not now be considered. At 
least for that period of time the Commonwealth has made a 
binding contract not to revoke the locations of the Boston 
Elevated Railway Company or its right to maintain any 
elevated lines or structures authorized by that act. 

The erection of the elevated structure across the locations 
of the Boston & Albany' Railroad Company and the New 
York, New Haven & Hartford Railroad Company, under 
authority of the act of 1897, and the payment to them as 
required by section 7 of compensation for the right to main- 
tain and operate it, in my opinion created in the Boston 
Elevated Railway Company an easement, or a right in the 
nature of an easement, in the property of the railroads. This 
right is property of the Boston Elevated Railway Company, 
and it cannot be deprived of that property by the Common- 
vs'ealth without compensation. In my opinion the proposed 
bill, if enacted, would be unconstitutional upon this ground, so 
ar as it applies to the structure of the company located 
icross the rights of wav of these two railroads. 



414 OPINIONS OF THE ATTORNEY-GENERAL. 

So far as the Boston Elevated Railway Company is main- 
taining any part of this structure on its own private land, it 
stands in the same position as any other landowner. It may 
use its own property and erect such structures thereon as it 
pleases, free from any interference by the Commonwealth 
except under the police power for the preservation of the 
public health, safety or morals. 

There remains the question applicable to all portions of 
the structure described in the bill, whether, notwithstanding 
the foregoing considerations, the General Court may order 
it removed without compensation under the police power. 
Under that power the Legislature may impose any reasonable 
restraint upon the use of property for the purpose of pro- 
tecting the public health, safety or morals. The Legislature 
cannot contract away its right to exercise this power, and in 
my opinion it has not attempted to do so in this instance. 
Under the guise of exercising the police power it cannot dis- 
regard its contract nor recall its grant of a right to maintain 
elevated structures on these authorized locations. Yet it is 
within its power, notwithstanding its contract with this com- 
pany, to enact such laws with reference to any part of the 
elevated structure of this corporation, particularly those por- 
tions located in public highways, as shall be reasonably adapted 
to the preservation of the public health and safety, and as 
shall insure the maintenance and operation of this railway 
system without risk of injury to the public. Such legislation 
is in no proper sense a revocation of the location. 

This bill, however, does not purport to be in the interest 
of the public safety. Apparently the structure is declared 
by the bill to be obsolete only in the sense that it is no longer 
used. There is no suggestion that it is dangerous or out of 
repair, and I do not understand that any such suggestion can 
be fairly made. The general statement that it is detrimental 
to the public welfare is too vague and indefinite a recital to 
warrant the taking of the property of this corporation without 
compensation. If the police power can ever be exercised solely 
in the interest of the public welfare, it must be in some re- 



HENRY C. ATTWILL, ATTORNEY-GENERAL'. 415 

stricted meaning of that term closely related to the public 
health, safety or morals. Property cannot be taken without 
compensation merely in the interest of the artistic or aesthetic 
sense of the community. See Commonwealih v. Boston Adver- 
tising Co., 188 IVIass. 348. 

The bill also recites that this structure is a menace to the 
public health. It must be assumed that this statement is 
made in good faith, yet to sustain the bill as an exercise of 
the police power on this ground it must appear reasonably 
to be directed toward that end. In the first instance the ' 

General Court is to be the judge of what is reasonable, but its 
action is reviewable by the courts, and if they determine that 
there can be no reasonable relation between a given enactment 
and the protection of the public health, they will not sustain 
the law. I am unable to perceive how the mere maintenance 
of that portion of the structure in question which is not located 
in public highways can be a menace to the public health. 
The fact that this structure is not now in use appears to 
render its maintenance upon priA^ate land, if anything, less 
dangerous to the public health rather than more so. So far as 
it is so located it is largely at or below the level of the ground, 
and thus there is provided in a tenement-house district an 
open space which might otherwise be covered by buildings. I 
am unable to perceive any real connection between the preser- 
vation of the public health and the requirement that the 
Boston Elevated Railway Company remove this entire struc- 
ture. 

For the foregoing reasons it is my duty to advise the Senate 
that the bill printed as House Document No. 1271, if enacted, 
«'ould be unconstitutional. 

The question addressed to me by the order of the honorable 
Senate appears to be broader in its scope than the proposed 
)ill. Accordingly, I deem it my duty in answering the inquiry 
make some further suggestions as to the power of the 
leneral Court to deal with a portion of the elevated structure 
'f the Boston Elevated Railway Company described in the 
rder. 



416 OPINIONS OF THE ATTORNEY-GENERAL ! 

Public highways are created and maintained for pubHc 
purposes. Ordinarily it is not within the power of the Legis- 
lature, so long as they are maintained as highways, to devote 
them to private uses which interfere with the rights of the 
public. Thus, the justification for the grant to a railway cor- 
poration of locations in public highways, whether revocable 
or irrevocable, is that these locations are to be used in the 
public interest. The locations granted to the Boston Elevated 
Railway Company in public highways, and the right to main- 
* tain elevated structures therein, were granted to it solely on 

the ground that it is a public service corporation, and that 
it was to use those locations and rights primarily in the public 
interest as an instrumentality of the public service. These 
grants were, therefore, charged with a trust. The locations 
and the right to maintain and operate structures thereon were 
subject to an implied limitation that they were to be used in 
the public service. The contract not to revoke them was 
subject to an implied condition or agreement that the company 
should continue to use them solely for the purposes for which 
they were granted. 

Furthermore, as I have already suggested, the Boston 
Elevated Railway Company holds its locations and the rights 
granted to it by its contract with the .Commonwealth subject 
to the exercise of the police power. In my opinion no Legis- 
lature, under the guise of entering into a contract, can tie the 
hands of its successors so as to prevent the exercise of this 
power to its fullest extent. 

I am informed that the Washington Street tunnel was 
opened in November, 1908, and that since that time, or for 
nearly six and one-half years, the elevated structure referred 
to in the order has not been used by this company. It no 
longer has any physical connection with the Tremont Street 
subway, and since the widening of Pleasant Street it would be 
necessary to excavate a tunnel under that street in order again 
to connect this structure with the Tremont Street subway. I 
am informed that no plan is now under consideration or in 
contemplation which involves again using the Tremont Street 



I 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 417 

subway for elevated trains, or using of any part of the elevatetl 
structure in question as a part of any scheme of rapid transit. 
So far as I am informed, no definite future use of this structure 
has ever been suggested. Though it has been unused for 
nearly six and one-half years, so far as I am informed the 
Boston Elevated Railway Company has made no suggestion 
to the General Court or to the Boston Transit Commission 
involving its use at any time in the future as a part of its 
elevated railw^ay system. Apparently no practical use of this 
unused structure can be made without the grant by the General 
Court of further locations to be used in connection with it. 

Under these circumstances, and in view of the nature of 
the rights of this company in public highways, I am of opinion 
that it is within the constitutional power of the General Court,y 
upon consideration of such facts as I have suggested, and any 
other facts bearing upon the matter that may be brought to its 
attention, to conclude that the Boston Elevated Railway 
Company has discontinued or abandoned the use of that 
portion of its structure under consideration which is within the 
Umits of public ways; that this structure is and can be of no 
further public use; that it unreasonably interferes with enjoy- 
ment and use of the public ways by the public to the detri- 
ment of the public health and safety; and by appropriate 
legislation to require that company, at its own expense and 
without compensation, to remove such structure." Such an 
enactment would, in my opinion, be a valid regulation of the 
use of these public highways in the interest of the public health 
and the public safety under the police power. 



418 OPINIONS OF THE ATTORNEY-GENERAL. 



Constitutional Law — Religious Belief of Public School 
Teachers — Bill Forbidding Inquiry by School 
Officials. 

A provision of a proposed act making it "unlawful for any public school committee 
or superintendent or supervisor of public schools to require or solicit from 
an applicant for a position in the public schools any information as to the 
religious belief or practice of the applicant" is not unconstitutional as in- 
consistent with Article II. of the Declaration of Rights, declaring "it is the 
right as well as the duty of all men in society, publicly, and at stated seasons, 
to worship the Supreme Being, the great Creator and Preserver of the 
universe," as that declaration is merely a precept for the guidance of the 
people and their legislators in the performance of their public duties, and not a 
limitation on the power of the General Court. 

A provision of a proposed act making it "unlawful for any public school committee 
or superintendent or supervisor of public schools ... to furnish any in- 
formation as to the religious belief or practice of any applicant for a position 
in any public school" would be unconstitutional if enacted, as it covers 
statements made outside of official duties, and thus denies to the officers 
referred to the equal protection of the laws. 

If from this proposed act the words "or to furnish any information as to the religious 
belief or practice of any applicant for a position in any public school" be 
struck out, and the words "and no appointment to such position shall be 
affected by political or religious opinions or affiliations" inserted, as thus 
amended it is not beyond the constitutional power of the General Court. 



of°Repre-°"^ I liavc the hoiior to acknowledge the receipt of an order from 
1915 ' the House of Representatives, in the following form : — 

Ordered, That the Attorney-General be requested to inform the House 
of Representatives whether, in his opinion, House Document No. 1962, 
now pending, being a bill relative to applicants for positions in the public 
schools, would be constitutional if amended, in section 1, by striking out, 
in lines 5, 6 and 7, the words "or to furnish any information as to the 
religious belief or practice of any applicant for a position in any public 
school," and inserting in place thereof the words "and no appointment 
to such a position shall be affected by political or religious opinions or 
affiliations." 

Ordered, That a copy of House No. 1962, together with a copy of 
the amendment, be transmitted to the Attorney-General for his infor- 
mation. 

Section 1 of the proposed bill, unamended, is as follows: — 

It shall be unlawful for any public school committee or superintendent 
or supervisor of public schools to require or solicit from an applicant for 



HENRY C. ATWILL, ATTORNEY-GENERAL. 419 

a position in the public schools any information as to the religious belief 
or practice of the applicant, or to furnish any information as to the re- 
ligious belief or practice of any applicant for a position in any public 
school. 

On April 12 I addressed a communication to the chairman 
of the Committee on Bills in the Third Reading of the House, 
concerning House Bill No. 1962, a copy of which communica- 
tion is as follows: — 

I have your letter of April 1 requesting me to inform your committee 
if in mj'' opinion House Bill No. 1962, relative to applicants for positions 
in public schools, would be constitutional if enacted into law. 

When this bill in its original form was considered by me at the request 
of your committee, it contained a provision making it applicable to any 
person, firm or corporation conducting a teacher's agency. That pro- 
vision, in my opinion, rendered the bill unconstitutional, and 1 so in- 
formed your committee. I then had no occasion to consider any other 
phase of the bill. 

Article II. of the Declaration of Rights of the Constitution of the 
Commonwealth declares — 

It is the right as well as the duty of all men in society, publicly, and at stated sea- 
sons, to worship the Supreme Being, the great Creator and Preserver of the uni- 
verse. And no subject shall be hurt, molested, or restrained, in his person, liberty, 
or estate, for worshipping God in the manner and season most agreeable to the 
dictates of his own conscience; or for his religious profession of sentiments; pro- 
vided he doth not disturb the public peace, or obstruct others in their religious 
worship. 

I When religious tests as qualification for office were removed from our 
Constitution at an early date (see Amendments, Article VII., adopted 
April 9, 1821), this declaration was left unmodified. It has long been a 
guiding principle in our school laws. R. L., c. 42, provides: — 

Section 18. The president, professors and tutors of the university at Cam- 
bridge and of the several colleges, all preceptors and teachers of academies and 
ill other instructors of youth shall exert their best endeavors to impress on the 
tninds of children and youth committed to their care and instruction the principles 
jf piety and justice and a sacred regard for truth, love of their country, humanity 
md universal benevolence, sobriety, industry and frugality, chastity, moderation 
ind temperance, and those other virtues which are the ornament of human society 
ind the basis upon which a republican constitution is founded; and they shall en- 
leavor to lead their pupils, as their ages and capacities will admit, into a clear 
mderstanding of the tendency of the above-mentioned virtues to preserve and 
lerfect a republican constitution and secure the blessings of liberty as well as to 
remote their future happiness, and also to point out to them the evil tendency of 
be opposite vices. 



420 OPINIONS OF THE ATTORNEY-GENERAL. 

Section 19. A portion of the Bible shall be read daily in the public schools, 
without written note or oral comment; but a pupil whose parent or guardian informs 
the teacher in writing that he has conscientious scruples against it, shall not be 
required to read from any particular version, or to take any personal part in the read- 
ing. The school committee shall not purchase or use school books in the public 
schools calculated to favor the tenets of any particular religious sect. 

The bill before me, if enacted into law, would make it a criminal act 
for the officials in charge of our public schools to seek from any applicant 
for a position as teacher any information whatever as to his religious 
belief or practice. It would thus be a misdemeanor for any such official 
to inquire of an applicant whether he believes in or worships the Supreme 
Being, or to ask him whether or not he is an atheist. Undoubtedly the 
Legislature has ample power to prevent and to punish discrimination in 
any form against any person on account of the manner of his worship or 
the form of his religious professions. It is conceded that many restraints 
may be imposed upon public officers in the performance of their public 
duties which may not be imposed upon citizens in general. Yet it is 
suggested that the positive declaration of the first sentence of Article II. 
of the Bill of Rights, that it is a duty of all men to worship the Supreme 
Being, cannot be disregarded. It is, therefore, urged that the General 
Court has no power to deny to school authorities the right to inquire 
from applicants for positions as teachers in public schools whether or 
not they perform the fundamental religious duty thus recognized and 
emphasized by the Declaration of Rights. 

The question as to what effect is to be given to this clause of the Con- 
stitution and to other similar provisions (see Part I., Article XVIII.; 
Amendments, Article XI.) is by no means free from doubt. The judges 
of the Supreme Judicial Court have recently declared — 

The Constitution of the Commonwealth in several clauses inculcates the practice 
of religion and urges the public worship of God, as essential means for the per- 
petuation of republican institutions. Opinion of the Justices, 214 Mass. 599, 601. 

It may be argued with considerable force that it is beyond the power 
of the General Court to enact laws which are at variance with the prin- 
ciples declared by the Constitution to lie at the foundation of our insti- 
tutions. On the other hand, however, it can be argued with equal force 
that such declarations as those under consideration were intended not as 
limitations on the power of the Legislature, but rather as precepts set 
before our people and their legislators as guides in the performance of 
their public duties; that these precepts are directory and not mandatory, 
and that thus the General Court is the sole judge as to how far it may 
properly enact legislation not in conformity with them. On the whole, 
in view of the fact that there are no express words of prohibition upon 
the power of the Legislature in this regard, I am inclined to this latter 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 421 

view. It follows, in my opinion, that the onlj'- express limitation upon 
legislative power is that contained in Article 11. of the Declaration of 
Rights, forbidding discrimination on the ground of religious beliefs or 
practices. I do not feel warranted in advising you that the bill in ques- 
tion, if deemed expedient, would be nullified by this clause of the Con- 
stitution. 

Another feature of the bill must be considered. If enacted it would 
make it a misdemeanor, punishable by fine, for the school officers men- 
tioned "to furnish any information as to the religious belief or practice of 
any applicant for a position in any public school." This clause seems to 
be broad enough to include any statement, made in ordinary private con- 
versation, of any fact, whether learned officially or otherwise, connected 
with the religious belief or practice of any such applicant, however harm- 
less or innocent such statement might be or whatever might be the 
purpose of making it. This seems to me to be something quite different 
from prescribing the manner in which these public officers shall perform 
their public duties. In my opinion this provision, if enacted, would 
deny to these ofiicers the equal protection of our laws within the meaning 
of the Fourteenth Amendment to the Constitution of the United States. 
For this reason House Bill No. 1962 would, in my opinion, be unconsti- 
tutional if enacted into law. 

The proposed amendment set forth in the order removes 
from the bill the clause which, in my opinion, would render 
it unconstitutional if enacted without amendment. The pro- 
vision substituted by the proposed amendment does not appear 
to me to be subject to criticism upon constitutional grounds. 

I fully stated my views as to the constitutionality of the re- 
maining provisions of the bill in the opinion which I have 
quoted. Those views I still retain. Article II. of the Dec- 
laration of Rights has firmly established in our fundamental 
law the principle that no discrimination based upon religious 
beliefs or practices shall be permitted. The proposed bill, if 
amended as suggested in the order, affirms tha' principle 
and extends its application to persons having no religious beliefs. 
For the reasons stated in the opinion rendered by me to the 
Committee on Bills in the Third Reading the enactment of such 
a bill, if deemed expedient, is not, in my opinion, beyond the 
constitutional power of the General Court. 



422 OPINIONS OF THE ATTORNEY-GENERAL. 



Constitutional Law — Regulation of Motor Vehicles — 
Classification — Requirement of a Bond. 

A proposed act requiring every person, firm or corporation engaging in the business 
of carrying or transporting passengers for hire in any motor vehicle to obtain 
a license from municipal authorities and to give a bond conditioned to pay 
any judgment obtained against the licensee for injury to person or property 
by reason of acts of the licensee in the conduct of such business, and then 
exempting from the provisions of such act persons operating motor taxicabs 
or motor vehicles rented by the day or hour and also any person, firm or 
corporation engaged principally in the hotel business, who operate motor 
vehicles to transport guests to and from railroad stations, would be unconsti- 
tutional if enacted. 

^f°ReprS°"^^ The House of Representatives has requested my opinion as 
sentatives. ^^ whether "the provisions of House Bill No. 2042, now pend- 
ing, relative to the use of certain motor vehicles for the trans- 
portation of passengers, are constitutional and legal, having 
special reference to the provision in the first section requiring 
the furnishing of a bond as a condition of receiving a license 
to operate certain motor vehicles, and also having special 
reference to the provisions in the fourth section which dis- 
criminate for the purposes of the bill between different classes 
of motor vehicles, or between motor vehicles used for different 
purposes, and between different classes of common carriers of 
passengers." 

The important sections of the proposed act are as follows : — 



May 4. 



Section 1. Every person, firm or corporation engaging in the business 
of carr>Ting or transporting passengers for hire in any motor vehicle, as 
defined in chapter five hundred and thirty-four of the acts of the j^ear 
nineteen hundred and nine, shall, before engaging in such business, make 
application to the board of aldermen in a city, or, in cities having no board 
of aldermen, to such city authority as may exercise the functions of such 
board, and to the selectmen in a town, and in the city of Boston to the 
board of street commissioners, for a permit to conduct such business. 
No permit for the conduct of such business shall be issued until the ap- 
plicant has filed with the clerk of the city or town where it is proposed 
to engage in such business, or, if the business is to be conducted in more 
than one city or town, then with the clerk of one of such cities or towns, 
a bond running to the commonwealth of Massachusetts, in such penal 
sum, not less than two thousand dollars for each motor vehicle operated 



\M 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 423 

as said aldermen or corresponding board of selectmen shall require, with 
such surety company, licensed to do business in this commonwealth, or 
with such other sureties as said aldermen or corresponding board of 
selectmen may approve, conditioned to pay any judgment obtained against 
the principal named in said bond for anj' injury to person or property by 
reason of any careless, negligent or unlawful act on the part of the prin- 
cipal named in said bond, his agents or employees, or the driver of such 
motor vehicle, in the conduct of said business or in the operation of such 
vehicle: provided, however, that nothing herein contained shall deprive 
the defendants in any such action of the right, given by chapter five 
hundred and fifty-three of the acts of the year nineteen hundred and 
fourteen, to set up and prove the affirmative defense of contributory 
negligence on the part of the person injured or killed. 

Section 4. This act shall take effect on the first day of July next, but 
shall not apply to owners or drivers of motor taxicabs, so called, or to 
motor vehicles rented by the day or hour, with or without a driver, to 
an individual or party of individuals for a special occasion, or to motor 
vehicles performing a service similar to that formerly performed by horse- 
drawn public cabs and hackney coaches, nor to any person, firm or cor- 
poration engaged principally in the hotel business, who operates motor 
vehicles to transfer guests to and from the railroad station. 

The provisions of the act requiring the Heensing of motor 
vehicles used for the transportation of passengers for hire 
would seem to be well within the poHce power. Law^s re- 
quiring licenses before engaging in certain businesses especially 
affecting public interests are so numerous that discussion of 
this point appears unnecessary. The fact that motor vehicles 
and the operators thereof are already under the necessity of 
obtaining licenses does not prevent the Legislature from re- 
quiring other and special licenses for their use in such a public 
business as transporting passengers for hire. Commonwealth v. 
McGann, 213 Mass. 215. 

The requirement that a bond shall be filed as a condition 
precedent to the issuance of a license is also a common re- 
quirement, the constitutionality of which would hardly now 
be questioned. Similar provisions will be found on the statute 
books already as to liquor dealers (R. L., c. 100, § 42), money 
lenders (R. L., c. 102, § 59), ferrymen (R. L., c. 55, § 1), 



424 OPINIONS OF THE ATTORNEY-GENERAL. 

pawnbrokers (R. L., c. 102, § 40), private detectives (R. L., 
c. 108, § 36) and auctioneers (R. L., c. 64, § 4). 

The mere fact that the provisions of the act apply to com- 
mon carriers of passengers by motor vehicles and not to 
common carriers operating by other means, in my judgment 
does not render the provisions of section 1 of the act uncon- 
stitutional. 

The question, then, remains as to whether any of the ex- 
ceptions contained in section 4 of the proposed act are such 
as to render it, as a whole, unconstitutional as class legisla- 
tion, or, in other words, as denying to all persons the equal 
protection of the la'ws. 

Even before the adoption of the Fourteenth Amendment it was a 
settled principle of constitutional law that statutes in regard to the trans- 
action of business must operate equally upon all citizens who desire to 
engage in the business, and that there shall be no arbitrary discrimination 
between different classes of citizens. Commonwealth v. Hana, 195 Mass. 
262, 266. 

The basis upon w^hich classification is admissible is well 
stated by Harlan, J., in Connolly v. Union Sewer Pipe Co., 
184 U. S. 540, 560: — 

The difficulty is not met by saying that, generally speaking, the State 
when enacting laws may, in its discretion, make a classification of persons, 
firms, corporations and associations, in order to subserve public objects. 
For this court has held that classification "must always rest upon some 
difference which bears a reasonable and just relation to the act in respect 
to which the classification is proposed, and can never be made arbitrarily 
and without any such basis. . . . But arbitrary selection can never be 
justified by calling it classification. The equal protection demanded by 
the Fourteenth Amendment forbids this. . . . No duty rests more im- 
peratively upon the courts than the enforcement of those constitutional 
provisions intended to secure that equality of rights which is the founda- 
tion of free government. ... It is apparent that the mere fact of classi- 
fication is not sufficient to reheve a statute from the reach of the equality 
clause of the Fourteenth Amendment, and that in all cases it must appear 
not only that a classification has been made, but also that it is one based 
upon some reasonable ground, — some difference which bears a just and 
proper relation to the attempted classification, — and is not a mere 
arbitrary selection." 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 425 

While the class which is to be regulated may properly be 
defined by describing a larger group and then excepting there- 
from certain distinct classes, provided there is a reasonable 
ground for the exceptions, the fact that ready language has 
not suggested itself for defining such class by itself in such a 
way as to make exception unnecessary naturally raises a 
doubt as to whether in reality a reasonable distinction exists. 
In other words, if a reasonable ground for creation of a class 
exists, it seems to follow that that class could be clearly and 
directly described, without the indirect definition of the class 
by means of exceptions. 

As stated in the language quoted above, the distinction 
must be with reference to the purposes of the act. The re- 
quirement in House Bill No. 2042, of filing a bond, has for its 
object the assurance of financial ability to respond in damages 
for injuries for which the owner is liable, and a distinction, 
to be valid, must have some relation to the danger or risk. 
So far as the act exempts persons, firms or corporations 
"engaged principally in the hotel business, who operate motor 
vehicles to transfer guests to and from the railroad station," 
there is, in my opinion, no reasonable ground of distinction. 
The act would penalize a hotel keeper who operated such a 
vehicle to and from a steamboat wharf or other place while 
I exempting a person in exactly the same situation who oper- 
ated one to and from a railroad station. Furthermore, it is 
difiicult to see how the operation of such a motor vehicle 
between a hotel and a railroad station would be any less 
I dangerous to the public or to the passengers if operated by or 
inder the direction of a person engaged principally in the 
lotel business than the same vehicle operated in the same 
nanner by a person whose principal business was that of 
)anking or anything else, but w^ho also was engaged in the 
onduct of a hotel. 

It is true that some courts, in their desire to uphold the 
onstitutionality of acts of Legislatures, have gone to extraor- 
inary lengths, and have found distinctions justifying classi- 
cations which are not apparent to the average citizen, but 



426 OPINIONS OF THE ATTORNEY-GENERAL. 

I cannot believe that in Massachusetts the Supreme Judicial 
Court will ever go to such lengths as to uphold a classification 
such as this. 

In my opinion the provision of the Constitution that no 
State shall "deny to any person the equal protection of the 
laws" is one the firm adherence to which is most necessary to 
the foundations and preservation of a republican form of gov- 
ernment; and no discrimination should be supported between 
different citizens unless in fact a substantial ground therefor 
can be stated without resort to fanciful arguments or attenuated 
distinctions. 

Undoubtedly, the Legislature maj^ draw lines which relate, 
to the liability of accident. If the classification proposed werei 
along the line of the number of passengers carried, the size or^ 
power of the vehicle, the rate of speed at which it may be 
operated or the skill of the person operating it, the nature of 
the district through which it operates, the control of the op- 
erator by the passenger, or related to common carriers of 
passengers by motor vehicles, of whom the degree of care 
required could be said to be greater than of others, the dis- 
tinction could well be supported. But, in my opinion, unless 
some reason along lines similar to those suggested exists, an 
exception from such a class as is defined in section 1 of this 
act is not warranted. 

Accordingly, I am of the opinion that the provisions of House 
Bill No. 2042, if enacted into law, would be unconstitutional 



Fire Prevention — Storage of Inflammable Fluids — 

Structures. 

A can is not a structure within the meaning of St. 1904, c. 370, § 3, as amendec 
by St. 1913, c. 452, pro\'iding that "no building or other structure shall b 
used in any city or town" for the storage of inflammable fluids without : 
license. 

Prevention^ " ^^ ^ ^^^ ^ structurc uudcr the provisions of St. 1904 

Commissioner. ^ gjQ^ | 3^ ^g amended by St. 1913, c. 452?" Such is tb 
question submitted by you for my opinion. 



I 



May 6. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 427 

The law referred to, briefly stated, is, "Xo building or other 
structure shall be used in any city or town for the keeping, 
storage, etc., of any articles named in section two (including 
gasolene), unless" a license is granted, etc. 

A "structure" is defined to be "a building of any kind, but chiefly a 
building of some size and magnificence; an edifice." . . . "^Tiile the word 
"structure" maj' cover a great variety' of form and construction, j^et, 
when used in connection with the words "house" and "building," it is 
evidently intended to simply describe a variety of building. Conley v. 
Lackawanna Iron & Steel Co., 88 X. Y. Supp. 125. 

The above definition seems to be the construction adopted in 
most jurisdictions. While it is not necessary to go to that 
length in the determination of this question, it is my opinion 
that a can is not a structure within the meaning of the act. 



Firemen's Relief Fund — Persoxal Injuries — Effect of 
Exposure in Course of Duty. 

A fireman disabled bj' congestion of the kidneys which is caused by exposure to 
cold and stormy weather encountered in the performance of his duties at a 
fire, is entitled to the benefits of R. L., c. 32, § 73, pro\'iding that the fire- 
men's relief fund "shall 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." 

I am requested to review an opinion given by a former To the Board 
Attorney-General in answer to the following inquiry presented s^onersof 
bv vour board : — Reijef Fund. 



Is a fireman entitled to a benefit under chapter 32, sections 71-77 
vho can reasonably prove that he was in practically perfect health up 
the time of responding at about midnight to a third or fourth alarm 
ire, the night in question being very cold and sleety, and it being the 
and of a fire that entailed much standing around and but little work, 
nd under these conditions the kidneys became congested, with the 
esult that the man was laid up for several months, and maj' not ever 
ecome quite well again. Is this fireman eligible to benefits under the 
liapter and specifications above mentioned? 



1915 
May 6. 



428 OPINIONS OF THE ATTORNEY-GENERAL. 

The law which apphes to such cases is R. L., c. 32, § 73, as 
amended by St. 1903, c. 253, § 1, and is as follows: — 

Section 73. Such fund shall be used for the relief of firemen, whether 
members of said association or not, who may be injured in the perform- 
ance of their duty at a fire or in going to or returning from the same, and 
for the relief of the widows and children of firemen killed in the perform- 
ance of such duty, in the manner and to the amount determined by a 
board of five persons, of whom three, not members of said association, 
shall be appointed by the governor in July of the year nineteen hundred 
and three, to serve, one for three 3'ears, one for two j^ears, etc. 

The opinion referred to was to the effect that the firemen's 
relief fund should be used only in cases of injuries received by 
some form of external violence, and the above inquiry was 
answered in the negative. Since this opinion was rendered 
similar questions have arisen under the workmen's compensa- 
tion act, and the construction of that act by various tribunals 
and courts would seem to have a strong bearing on the question 
presented by your board. The similarity in the wording of 
the law governing the distribution of the fund in your hands 
and the compensation act above referred to will be seen at a 
glance. 

Section 1 of Part II. of the workmen's compensation act 
reads, in part, as follows: — 

If an employee . . . receives a personal injury arising out of and in 
the -course of his employment, he shall be paid compensation by the 
association as hereinafter provided. . . . 

The Industrial Accident Board has defined "personal in- 
jury" as used in the workmen's compensation act as "anj 
injury or damage or harm or disease which arises out of anc 
in the course of the employment which causes incapacity foi 
work and takes from the employee his ability to earn wages. 

Among the many cases arising under the act referred t( 
which have been decided in favor of the employee are tin i 
following: Stone v. Travelers Insurance Co., where an em i 
ployee got his feet wet in a leaky boat which was furnishe( j 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 429 

by his employer, and pneumonia developed as an after-effect 
of the injury; Milliken v. Travelers Insurance Co., where an 
employee contracted pneumonia following cold and exposure. 
The Supreme Judicial Court in the case of Brightman v. 
Etna Insurance Co., 220 Mass. 17, upheld a decree in favor of 
;he widow of an employee who died of heart disease which was 
iccelerated by the excitement attending the sinking of a 
.'essel on which said employee was cook, and from which he 
1 nade his escape and died soon after reaching the shore. 

In none of these cases, it will be observed, was there "ex- 

ernal violence" in the ordinary use of the term, and yet in 

ach instance it was held that there had been personal injury. 

n view of these cases and similar cases in other jurisdictions, 

early all of them having been decided since your inquiry was 

rst raised, I am of the opinion that if the injury to which 

our communication refers was in fact really caused by ex- 

osure while the fireman was actually in the performance of 

is duties he is entitled to the benefits of the act. 

I therefore feel obliged to modify the ruling previously made 

s' this department, and to inform you that in my opinion the 

inds of your association may properly be devoted to the relief 

' firemen who may be injured in the performance of their duties 

a fire or in going to or returning from the same, whether the 

juries are caused by "external violence," from smoke or fire 

haled, from exposure, or from any disease directly resulting 

Dm the performance of their duties. 

I In your letter of April 28 you also ask whether firemen 

jured in fire service who are receiving benefits under the work- 

?n's compensation act have a right to receive a benefit under 

L., c. 32, §§ 71-77. I am of the opinion that the question 

sould be answered in the negative. St. 1913, c. 807, § 5, in 

1/ judgment, clearly prohibits any such payment. 



430 OPINIONS OF THE ATTORNEY-GENERAL. 



Intoxicating Liquors — Transportation into No-license 
Municipalities — Time for granting Permits. 

St. 1906, c. 421, § 2, as amended by St. 1911, c. 423, does not limit to the month 
of April the time in which municipal authorities may grant permits for the 
transportation of intoxicating liquors into no-license cities and towns, and 
such authorities have the power in their discretion to grant such permits 
throughout the year. 

J^^the^District J j^gg j^q acknowledge the receipt of your letter in which you 
j^fstricr*^^'" request my interpretation of the provisions of chapter 423 of 
miyn. the Acts of 1911. You ask me to inform you "whether or 

not the mayor and board of aldermen may grant permits re- 
ferred to by the law in any other month except the month 
of April referred to in the statute." 

The provisions of chapter 423 of the Acts of 1911 amend 
section 2 of chapter 421 of the Acts of 1906, so as to read as 
follows : — 

The maj^or and aldermen in cities and the selectmen in towns in which 
said Ucenses of the first five classes are not granted shall annually in the 
month of April, grant and issue one or more permits under the provisions 
of this act, to become effective on the first day of May following, and to be 
granted only to a person, firm or corporation regularly and lawfully con- 
ducting a general express business and to no other person, firm or cor- 
poration, and every such permit shall specify the residence by street and 
number (if any) of the holder, and shall be subject to aU laws now or 
hereafter in force relative to the transportation of such liquors. 

Section 1 of said chapter 421 is as follows: — 

No person or corporation, except a railroad or street railway corpora- 
tion, shall, for hire or reward, transport spirituous or intoxicating liquors 
into or in a city or town in which licenses of the first five classes for the 
sale of intoxicating liquors are not granted, without first being granted 
a permit so to do as hereinafter provided. 

Prior to the passage of this statute there were no restrictions 
placed upon the transportation of intoxicating liquors into no- 
license communities other than those imposed by sections 48 
to 51 of chapter 100 of the Revised Laws. 

Chapter 421 was enacted for the purpose of regulating the 



i 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 431 

transportation for hire or reward of intoxicating liquors into 
no-license communities, and of requiring a permit by the 
mayor and aldermen or the selectmen to the person so trans- 
porting. The act imposes a limitation upon the right of 
citizens to engage in a business which they formerly could 
lawfully engage in, and therefore the limitations contained 
therein should be construed strictly. Section 2 was enacted 
for the purpose of insuring to the inhabitants of the no-license 
community that there should be at least one person or cor- 
poration authorized under the act to transport such liquors 
into it. Rea v. Aldermen of Everett, 217 Mass. 427. 

After the passage of chapter 421 of the Acts of 1906 there 
were many boards of mayor and aldermen and boards of se- 
lectmen which took the attitude that the word "shall," in 
section 2 of said chapter 421, should be read as "may," and 
therefore it was discretionary with them whether to grant one 
or more permits, and also that, as section 2 did not provide the 
time when the permit should be granted, it was discretionary 
with them as to the time the permit should be granted, even 
if the provisions of said section 2 required them to grant at 
east one such permit. Chapter 423 of the Acts of 1911 was 
)assed, in my opinion, to give further force and effect to section 
1 5 of chapter 421 of the iVcts of 1906, so as to require the mayor 
jind aldermen of a city and the selectmen of a town to grant 
it least one permit during the month of April. 
I I am of the opinion that outside of the mandatory provision 
II section 2, directing the mayor and aldermen in cities and the 
electmen in towns to grant and issue at least one permit in 
he month of April, and the provision that the permits shall 
'e granted only to a person, firm or corporation regularly and 
liwfully conducting a general express business, the act in no 
ay limits or controls the discretionary powers vested in the 
lay or and aldermen or the selectmen, and that they therefore 
ive the power at any time during the year to grant permits 
addition to those granted during the month of April. 
It is to be noted that a construction that the mayor and 
dermen in cities and selectmen in towns were limited to 



432 OPINIONS OF THE ATTORNEY-GENERAL. 

granting permits in the month of April only might lead, in 
view of the decision in Rea v. Aldermen of Everett, to absurd 
results, as the mayor and aldermen or selectmen could not be 
compelled to grant a permit until the expiration of the month 
of April, and after its expiration they would have no authority 
to grant such permit. 



Registered Physicians — Application of Statute Require- 
ment TO State Institutions — Assistants to Super- 
intendents. 

Assistants to superintendents in State institutions, if practising or attempting to 
practise medicine in any of its branches, must be duly registered in accord- 
ance with the requirements of R. L., c. 76, §§ 1-9. 

Jf°Regis^?ation ^^^^ havc rcqucstcd my opinion as to whether physicians 
'"iQiI'^"^'"^' practising medicine in State institutions as assistants to the 
^^.^^' superintendents thereof are required to be registered under the 

Massachusetts laws; or, in other words, whether an unregis- 
tered person so practising is acting contrary to the statutes. 
R. L., c. 76, §§ 8 and 9, provide: — 

Section 8. Whoever, not being lawfully authorized to practice 
medicine within this commonwealth and registered as aforesaid, holds 
himseK out as a practitioner of medicine, or practices or attempts to 
practice medicine in any of its branches, . . . shall, for each offence, 
be punished by a fine of not less than one hundred nor more than five 
hundred dollars or by imprisonment for three months, or by both such 
fine and imprisonment. In a case in which a provision of this or the 
preceding section has been violated, the person who committed the 
violation shall not recover compensation for services rendered. 

Section 9. The provisions of the eight preceding sections shall not 
be held to discriminate against any particular school or system of medi- 
cine, to prohibit medical or surgical service in a case of emergency, or to 
prohibit the domestic administration of family remedies. They shall 
not apply to a commissioned