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

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OFFICIAL OPINIONS 



THE ATTORNEYS-GENERAL 



®1|? Ol0mm0ttm^aUl][ nf liaafiarljUHFttjs 



PUBLISHED BY THE 

ATTORNEY-GETnTERAL 



Volume V 

From 1917 to 1920, inclusive 



BOSTON 

WRIGHT & POTTER PRINTING CO., STATE PRINTERS 

32 DERNE STREET 

1922 



THIS VOLUME CONTAINS 
THE OPINIONS OF ATTORNEYS-GENERAL 

HE^RY C. ATTWILL, 1917-1919 

he:^ry a. wYMAisr, 1919-1920 

J. WESTOI^ ALLEI^, 1920- 

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 1921, chapter 23, which 
provides that the Attorney-General shall "collect and publish in a 
volume properly indexed and digested such of the official opinions 
heretofore published as an appendix to the annual reports of the 
attorney-general during the years nineteen hundred and seventeen 
to nineteen hundred and twenty, inclusive, as he may deem to be of 
public interest or useful for reference." 

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

J. WESTON ALLEN, 

Attorney -General. 
Boston, January, 1922. 



Table of Statutes cited or referred to in this 
Volume. 



Acts of Congress. page 
1907, Mar. 4, 34 Stat. 1415 572 

1916, June 3, § 62 98 

§ 10 115 

§55 115 

1917, Oct. 6, §§ 204-210 163 

1918, Mar. 8, § 500 214 

United States Compiled Statutes. page 

§§ 3958, 3959 638, 640 

United States Revised Statutes. page 

§ 1222 166 

§ 1999 675 

§ 5278 593 

United States Constitution. page 

Art. I, § 8 575 

Art. I, § 10 333, 531 

Art. II, § 1, par. 2 617 

Art. IV, § 2 593 

Art. V 641 

Art. VI 94, 213 

Amendment, art. XIV 58, 88, 361 

Amendment, art. XVIII 515 

Constitution of the Commonwealth. page 

Dec. of Rights, art. I 484 

art. VII 21 

art. X 485 

art. XII ; . . . 485, 506, 507 

art. XV 88 

art. XXIX 485, 734 

art. XXX 502, 503 

Const., pt. 2d, c. 1, § I, art. I 350 

§ I, art. IV 27, 333 

§ II, art. II 504 

§ III, art. IV 504 

c. 2, § I, art. VII 248 

§ I, art. VIII 591 

§ I, art. XI 312 

c. 6, art. I 95, 480 

art. II 20, 23, 25 



Vlll 



STATUTES CITED. 



Constitution of the Commonwealth — Con. 



Amend'ts Const., art. Ill 

art. IV 

art. VI 

art. VIII . 

art. IX 

art. XVII . 

art. XX . 

art. XXI . 

art. XXII 

art. XXVIII 

art. XXX . 

art. XXXI 

art. XXXII 

art. XL 

art. XLIII 

art. XLIV 

art. XLVI 

art. XLVI, § 2 

art. XLVI, § 3 

art. XLVII 

art. XLVIII, The Referendum 

art. XLVIII, The Referendum, I, II 

art. XLVIII, The Referendum, III, § 2 

art. LXII, § 4 

art. LXIII, § 1 

art. LXV 



PAGE 


. 617 


641 




481 


95.96 


480 


. 96 


165 




22 




504 




504 




502 


. 502 


504 




504 




504 




504 




504 




504 




656 


. 622 


624 


38,511 


526 


. 317 


712 




712 




195 




612 




612 




613 




469 




524 




377 



Statutes of the Commonwealth. 











PAGE 








PAGE 


1797, c. 16, § 1 . . . .70 


1878, c. 244, § 2 . . . .395 


1829. 0. 113. §4 








317 


0.261 . 






. 682 


§7 








315 


1881, c. 210 






. 32 


1852. c. 105 . 








63 


1882. c. 36 . 






. 303 


1855. c. 481 . 








63 


c. 139 . 






. 481 


1856. c. 173 . 








28 


1883, c. 138 . 






. 70 


1862, c. 156 . 








322 


1885. c. 266, § 5 






. 529 


1864. c. 96 . 








317 


c. 323 . 






. 528 


c. 229. § 24 








102 


§ 2 






. 395 


1868. c. 212, § 8 








693 


§6 






. 399 


1869. c. 27 . 








316 


1886. c. 150 . 






. 390 


c. 71 








317 


c. 263 . 






. 181 


c. 344 . 








693 


1887. c. 206 . 






. 196 


1871, c. 392 . 








79 


c. 392 . 






. 401 


1874. c. 389. § 1 








389 


1888. c. 316. § 1 






. 348 


1876, c. 197 








481 


1889, c. 316 . 






. 150 


1877, c. 234 . 








303 


§3 






. 151 


1878. c. 84 








79 


c. 439, §§ 1. 3 






. 559 


c. 244 . 








528 


§9 






559. 560 



STATUTES CITED. 



IX 



Statutes of the Commonwealth — Con. 



1SS9, c 
1890, c. 



1892, c. 



1893, c. 



1894, c. 



1896, c. 

1897, c. 



1901, c. 

1902, c. 



1905, c. 



439, § 16 

382 

415 

426, §§ 1, 2, 

178, § 1 

216 . 

304 

420 

— §1 

191 

228 . 

355 . 

410, § 2 

334 . 

355, § 1 

407, § 4 

458, §§ 10, 1 

497, § 8 

508, § 78 

406 . 

— §21 
475 . 
424 . 
233, § 1 
271 . 

— §2 
466 

424, §§ 9. 21 

— §21 
168 . 
213 . 

— §1 
227 . 
305 . 
437, §§ 40-44 

— §89 
456 . 

— §2 ' 
194 . 
243, § 2 

— §3 
367 . 
370 . 

— §2 
379 . 

— §1 
453 . 
280, § 1 
320 . 



PAGE 

559, 560, 561 
. 420 
. 477 

343, 344 
. 179 
. 293 
. 694 
. 654 
. 653 
. 304 
. 420 
7, 13 
. 180 
. 64 
. 329 
. 541 
. 329 
. 531 
. 180 
. 560 
. 561 
. 278 
. 245 
. 190 

105, 106 
. 107 
. 361 
. 560 
. 561 

559, 561 
. 70 
. 69 
. 434 
. 258 
. 169 

570, 571 
. 178 
. 179 
. 245 
. 505 
. 174 

589, 590 

545, 546 

50, 562 

. 378 

. 380 

. 271 

50, 562 
. 308 



1905. c. 355. § 2 

1906, c. 224 

c. 243 

c. 244 

c. 281 

c. 291 



c. 365 , 
c. 383 
c. 415 
c. 463, pt 
pt 



pt. Ill 



1907, c. 164 

c. 216 . 

c. 308 . 

c. 465 . 

c. 474, § 10 

c. 480, § 1 

c. 534, § 3 

c. 535, § 1 

c. 576 

§7 

§20 

• §26 

§32 

§ 42 

§45 

§§48 

§57 

§60 

§69 

c. 582 

1908, c. 151 

c. 181 

c. 305 

c. 330 

c. 494 

c. 511 

c. 520 



§§9, 56 
§§ 137, 1 

§9 

§51 

§97 



§§1,2, 



c. 525, § 2 



PAGE 

. 505 
. 143 

142, 505 
. 141 
. 218 
. 394 

528, 529 
. 529 
. 33 
. 308 
■ . 258 
. 103 
. 151 
. 645 
. 150 
. 101 
. 293 
. 351 
. 522 
. 218 
. 138 

512, 514 

300, 626 
. 343 
658, 659, 660 

265, 552 
. 43 
. 15 
. 346 
15, 426 
. 427 
. 673 
. 672 
. 551 
. 704 
. 702 

344, 391 
1 

598, 599, 600 
. 448 
. 304 

498, 500 
. 716 
. 543 
. 92 
. 683 
. 685 
. 53 
. 307 



STATUTES CITED. 



Statutes of the Commonwealth 



1908, c. 549 . 
§1 

c. 589 . 

c. 590, § 8 

§§9, 10 

§ 16 

§§ 19, 20 

§49 

§63 

§68 

c. 601 . 

c. 604 

§§ 173, 177 

c. 636, § 2 

c. 649, § 2 

1909, c. 261 

c. 310 . 

c. 337 . 

c. 342, § 1 

§4 

c. 362 . 

§1 

c. 393, § 1 

c. 419 . 

c. 490, pt. I, § 1 

§2 

§ 5, cl. 2 

§§16,18 

§44 

§47 

§ 71 

§ 73 

§§76,82 

§34 
§39 



pt. II, 
pt. Ill, 



§5 

§32 

§33 

§34 

§§ 40, 41, 43 

§ 41, cl. 4 

§56 

§60 



c. 491 



• c. 504, 



§4 





PAGE 




476 




478 


577 


579 




220 




567 


120 


525 


683 


684 


682 


688 




281 




661 


228 


230 




160 




162 




79 


643 


645 




218 




343 




518 




92 




93 




482 




628 




139 




40 




631 




446 




342 




45 




558 




123 




7 




123 


215 


652 




123 




705 




430 




51 


431 


649 




16 




15 




17 




714 




557 




570 


16, 17 1 




120 




118 




627 



1910, 









PAGE 


c. 504, § 104 




351, 591, 592 


§ 105 






. 143 


c. 514, § 2 






. 444 


§12 






. 181 


§17 






. 309 


§36 






. 180 


c. 514, § 112 






. 417 


c. 534 






. 49 


c. 536 . 






. 516 


§§3,4 






. 517 


c. 187, § 1 






. 706 


c. 326, § 1 






. 444 


c. 381, § 7 






. 18 


c. 399 . 


460, 563 


568, 680, 682 


§1 






. 726 


§2 




726, 727, 729 


§§4,8, 


11 . 


685, 688, 691 


§12 




461, 462, 689 


c. 428, § 1 


. 




. 536 


c. 469 . 






. 518 


c. 493, §§ 1, 2, 


3,4,5.6 


7, 


8, 9 . 2 


c. 500 . 






. 528 


c. 501 






. 271 


c. 524 . 






448, 449 


c. 548, §§ 1, 2 






. 589 


c. 565, § 2 






71, 72 


c. 622 . 






. 220 


e. 152 






. 19 


c. 176 . 






. 505 


§1 






. 506 


c. 236 . 






. 518 


c. 337, § 1 






. 93 


c. 352 . 






. 245 


c. 356 . 






. 518 


c. 384 . 






. 422 


c. 399 






. 362 


c. 451 . 






. 434 


§1 




17 


4, 175, 576 


c. 471 . 


183 


57 


8, 579, 580 


c. 494, § 1 






47, 254 


§4 






. 254 


c. 532 


192, 


23 


3, 547, 634 


§2 






. 456 


§3 


222, 


45 


5, 635, 636 


§6 






456, 636 


c. 597 






. 33 


c. 613 . 






. 33 


c. 624 . 






. 724 


c. 628, § 5 






. 256 



STATUTES CITED. 



XI 



Statutes of the Commonwealth 



Con. 



1912, 



1911, c. 669 . 

§2 

§4 

c. 673 

c. 675, § 

c. 731, § 

c. 748, § 

c. 751 

151 

c. 158 
c. 201 
c. 221 
c. 363 
c. 375 
c. 401 

§ 

c. 472 
c. 608 
c. 623, §§ 1, 19 

§§ 35, 36 

c. 637 . 
c. 652 . 

§5 

c. 700, § 1 
c. 706, § 9 
c. 719, §§ ( 
c. 177, §§ 2, 3, 7, 8 



1913, 



§§9, 10, 11, 14 

c. 264 . 
c. 410 
c. 413 
c. 452 . 
c. 474, § 2 
c. 487 . 
c. 548 . 
c. 577 . 
c. 655, § 15 
c. 657, § 1 
c. 705, §§ 1, 
c. 711 . 
c. 719, § 5 

§9 

c. 720 . 

§1 

§2 

c. 724, § 23 
c. 758 . 
c. 779, § 1 

§9 



3,4, 5 



PAGE 

125, 126 
127, 389 
381, 388 
228, 230 
. 610 
. 484 
492, 493, 494 
73, 74, 76, 84 
. 33 
. 434 
. 109 
. 304 
222, 547 
. 420 
. 265 
543, 599, 600 
. 564 
. 335 
. 390 
. 340 
33,35 
. 583 
. 584 
. 670 
. 171 
9,290 
. 564 
. 565 
. 340 
. 170 
36, 170, 218, 374 
545, 546 
. 265 
469, 470 
538, 539 
720, 721 
. 347 
. 250 
. 319 
. 444 
. 397 
. 200 



, 15, 



544 



17 



. 306 
. 307 
. 294 
46,47 
. 308 
56, 657 



1913, c. 779, § 15 

c. 784 . 

§§ 20, 

§23 

§27 

§28 

§29 



c 


805 




c 


807 




c 


819 


§1 


c 


829 






— 


■§§'l 


c. 


831, 


§27 


c. 


832 


§1 
§12 



c. 835 



§1 

§§ 24, 33 

§89 

§§92, 

§ 108 

§142 

§ 198 

§341 

§347 

§354 

§391 

§400 

§405 

§408 

§419 

§429 



1914, c. 119 



c. 217, § 1 
c. 370 . 

§2 

c. 494 
c. 532 
c. 554 
c. 556 
c. 557 
c. 568 
c. 587, § 1 
c. 605, § 4 

§6 

c. 610 . 
c. 643, § 4 



259 



73. 



722 



PAGE 

. 173 
371, 643 
313, 314 
. 645 
. 295 
. 373 
644, 645 
. 582 
74, 76, 280 
. 404 
. 433 
. 432 
. 423 
. 577 
. 297 
. 578 
449, 521 
. 617 
. 30 

614, 617 

615, 616 
. 520 
. 520 
. 667 
. 9 
. 153 
. 453 



. 286 

. 8 

416,417 

48, 203 

. 721 

. 720 

. 152 

. 233 

. 231 

, 577, 579 

. 156 

. Ill 

. 711 

. 351 

. 194 

, 723, 724 

113, 114 

. 233 

118, 525 

. 390 



Xll 



STATUTES CITED. 



Statutes of the Commonwealth — Con. 



1914, c. 643, § 6 

c. 681 

c. 742, § 51 

§ 162 

c. 783 . 

§2 

§3 

§5 

c. 791, § 17 

c. 795 . 

§4 

§ 13 

§ 18 

1915 (Gen.) c. 7 

c. 81, 

c. 98 

c. 141 

c. 147 

c. 150 

c. 206 

c. 216 

c. 224 

c. 240, 

c. 244 

c. 256 

c. 261 

c. 268 

c. 281 

c. 292 

c. 293 

(Spec.) c. 348 

1916 (Gen.) e. 16 
c. 55 



c. 98 

c. 103 
c. 119 
c. 129, 
c. 138 
c. 139 
c. 161 
c. 187 

c. 197 



§2,5 



§1 





PAGE 1 


. 340 


341 






180 






438 






353 






449 






154 






452 




451 


453 




707 


708 
545 




50,71 






454 






535 


54 


5,546 


719 
673 
523 
1, 2 
174 
560 
560 
142 




351 


3.52 

444 
498 
73 
249 
175 


4 


3.664 


666 


11 


24 . 


269 
523 
418 
330 
717 




520 


521 
300 
34 
174 
250 




21,94 






23 






215 






469 






220 






718 






277 




449 


450 

507 

506 

34 



92. 



1916 (Gen.) c. 240 . 
c. 241 . 

c. 242 . 

c. 250 . 

c. 269, § 2 

c. 285. § 1 

c. 286, § 2 

§ 12 . 

c. 288 . 

c. 290 . 

c. 293 . 251, 

c. 296 . 

§§1,2,3 

c. 306 . 

(Spec.) c. 174 . 

1917 (Gen.) c. 8, § 1 

0. 48, § 1 

c. 55. § 1 

c. 105 . 

c. 108 . 

c. 133 . 

c. 148 . 

§ 2 . 

§6 . 

c. 149 . 

§ 3, 9 . 

c. 169 . 

c. 172, § 2 

c. 179 . 

c. 202, § 5 

c. 211 . 96, 97 

131, 135, 156, 158, 167 

c. 218, § 1 

§§ 2, 3, 4 

c. 223 . 

c. 245 . 

c. 297 . 



0.301 
c. 302 
c. 307 
c. 310 



§1 
§1 
§1 



129, 
145. 



PAGE 
. 47 

142, 143, 434 

. 174, 433 

. 62 

. 249 

619, 621, 623 

. 621 

. 123 

. 592 

. 604 

. 606 

. 35 

. 380 

. 385 

252. 370, 371 

. 289 

553, 555, 556 

. 418 

. 183, 185 

. 658, 660 

. 627 

549, 550, 551 

. 162 

. 256 

. 126 

49, 50, 159 

. 161,217 

. 162 

. 583 

. 584 

. 449. 609 

. 220 

135. 167. 168 

. 662 

, 98. 114, 115, 

366. 467, 469 

. 466 

. 732 

. 733 

. 126 

. 143 

. 116 

149. 163. 274 

146. 164, 209 

. 271 

. 156 

. 284 

. 282 

. 655 



STATUTES CITED. 



Xlll 



Statutes of the Commonwealth — Con. 



1917 











PAGE 












PAGE 


(Gen. 


c 


312, § 2 


. 181 


1918 (Gen. 


c. 261 




. 240 




c 


323 . 


111,113,114 




c. 262 








222, 279 




— 


— §1 . 


. 110 




c. 263 








. 240 




— 


— §§2,3,4 


. 110, 112 




c. 265 








417. 418 




c 


324 . 


. 163 





c. 272 








. 240 




c. 


326 . 


. 155 




c. 274 








. 222 




c 


327, pt. I, §§ 25-34 161, 217 




c. 278 








249, 266 




— 


— §78 


. 162 




c. 284 








. 240 






§ 191 . . 392 




c. 286 








. 236 




— 


§ 194 . . 162 




c. 287 








. 240 




c. 


331 . 


. 160, 162 




c. 293, 


§3 






225, 253 




c 


332 96, 97, 


114, 115, 132, 


(Spec.) c. 110 








. 316 






134, 156, 158 


168, 366, 367 




c. 138 








. 419 




— 


— §1 . 


97, 99, 101 




c. 159 








. 358 




c. 


340 . 




. 243 




c. 159, 


§'l8 




259, 409, 410 




c. 


342 . 




. 248 


1919 (Gen. 


c. 9 






601, 602, 603 




— 


— §§6,11 




. 247 




c. 28 






. 583 


(Spec.) c 


292 . 




. 163 




c. 32, 


§1 






. 606 




c. 


366 . 




. 358 




c. 60 








661, 662 


(Gen.) 


c. 


15 . 




. 662,663 




c. 112 








. 382 




c. 


44 . 




. 525 




c. 113 








365, 572 




c. 


49 . 




. 601 




c. 116 








400, 421 




c. 


58, § 2 




. 464 




c. 150 








. 399 




c. 


87 . 




. 418 






§1 






. 500 




c. 


92 . 




. 366 




c. 153, 


§§1,2 






. 518 




c. 


109 . 




. 586 




c. 190 








. 722 




c. 


110 . 




. 350,353 






§1 






. 723 




c. 


130 . 




299, 303, 304 




c. 269, 


§9 






. 614 




e. 


164 . 




. 722 




c. 271 








425, 426 




— 


— §2 




. 723, 724 




c. 283 


. 40. 


5, 


429 


, 465, 467 




c. 


173 . 




. 271 






§2 






. 406 




— 


— §1 




. 272 






§3 






. 630 




c. 


185 . 




. 285 






§5 






. 407 




e. 


211 . 




. 243 






§9 




467, 603, 604 




c. 


214 . 




. 434, 435 






§ 10 




602, 603, 604 






— §1 




. 433 




c. 289 






. 696 




c. 


226 . 




. 251, 369 






§§ 7, 8, 9 


. 395,697 




c. 


228 . 241, 


289, 554, 555, 






§§ 10, 11 


14, 18 . 697 








723, 725 




c. 290, 


§9 . 


. 471 






— §§1,2 


. 553 




c. 291 




. 711 




c. 


235 . 


. 570 




c. 292, 


§§5,9 


. 435 




c. 


240, § 2 




. 227 




c. 294, 


§2' . 


. 436 




c. 


246 . 




222, 278, 279 




c. 295 


. 407 


409, 573, 574 




c. 


248 . 




. 222 




c. 296 




. 411, 588 




c. 


257, § 135 




. 250 






§12 . 


. 401 




— 


— §174 




. 449 




c. 301, 


§1 . 


. 648 




— 


— §285 




. 551 




c. 307 




. 466 




c. 


260 . 




271, 272, 273 




c. 311 




580, 581, 582 




— 


— §1 




. 238 






§1 






. 582 



XIV 



STATUTES CITED. 



Statutes of the Commonwealth — Con. 

















PAGE 








PAGE 


1919, (Gen.) 


c. 316 




. 663 


1919 (Spec.) 


0.246 




. 527 




c. 320 




. 554 


1920, c. 40 






. 656 







§ 1 . • 


554, 555, 556 


c. 80, 


§l' 


. 537 


538. 539 




c. 326 




400,421,442 


e. 225 






. 613 




c. 342 




. 466 




§4' 




. 568 




c. 349, 


§19 ; 




. 706 


c. 240 






. 539 




c. 350 






438, 645 




§§1.2,3 


539, 541 


. 




§1 . 




. 433 




§6 




. 539 







§11 . 




724, 726 


c. 265 






. 715 







§15 . 




. 554 


c. 306 






653, 654 






§17 . 




. 444 


c. 349, 


§§'6, 7, 


8, 9 . 


570, 571 






§§35,36, 


37 


. 699 


c. 352 




619, 621, 622 


, 623, 625 







§56 . 




. 435 


c. 371 






. 586 







§§ 69-72 




528, 530 


c. 411 






608, 609 






§79 . 




. 592 


c. 424, 


§1 


. 612 


613, 614 






§§ 82, 85 




. 433 


c. 460 






649, 651 






§§ 99, 100 


. 546 


c. 550 






706, 707 






§ 101 . 




610, 611 


c. 552 






. 604 






§ 104 . 




546, 720 


c. 563, 


§6 




. 668 






§109 . 


455, 545, 546, 


c. 574 






. 634 








720, 721 




§ 4 




635, 636 






§123 


539,541,561 


c. 579 






. 668 






§§ 123-129 . 539. 559, 


c. 608, 


§2 




603, 604 




c. 355 




. 706,707 


c. 609 






603, 604 




C.363 


573 


574, 580, 583 




§1 




. 602 






§§1.2 


. 581 


c. 619 






. 717 


(Spec.) 


c. 112 




. 477 




§2 




. 697 




c. 242 


§ 3 


. 467 
Reso 

PAGE 


c. 629 

LVES. 






. 648 

PAGE 


1780, c. 58 






. 480,481 


1909, c. 90 






. 317 


1830, 0. 81 














. 315 


1911, c. 78 




. 311 


312, 313 


1833, c. 28 














. 315 


1912, c. 87, 






. 311 


1847, c. 49 














. 315 


1916, c. 43 




. 


. 377 


1855, c. 62 














. 315 


1918, c. 50 






. 524 


1861, c. 51 














. 316 


c. 86 




241, 288, 


289, 290 


1864, c. 56 














. 316 


1919, c. 11 






. 377 


1868, c. 12 














. 316 


1920, c. 56 






607, 608 


1869, c. 19 














. 316 











Colony Ordinance. 



PAGE 

. 379 



STATUTES CITED. 



XV 





Public Statutes. 












PAGE 


PAGE 


c. 18, § 7 


. 480 


c. 100, § 14 190 


c. 27. § 78 . 


. 390 


c. 207. §§ 52, 53, 54, 59 . . . 393 




Revised Laws. 




PAGE 


PAGE 


c. 4, § 9 


. 477, 478 


c. 65, §§ 1-12 . . .62. 128 


c. 6, § 58 


. 698, 700 


c. 75, § 9 






. 12 


§§ 69, 70, 71 


. 530 


§35 








33, 34 


c. 7, §§4,7 . 


. 67 


§48 








. 653 


§17 


67, 68, 246 


§50 








. 626 


c. 8, § 1 


. 116, 117 


§52 






299. 300. 303 


§4 


. 501. 587, 648 


§53 






69. 70. 71, 299 


§5 


. 226 


§57 






. 70 


c. 9, § 16 


. 278 


§75 








. 299 


c. 10, §§ 4, 8, 9 


. 444 


§90 








. 335 


§20 


. 249 


§ 105 








. 277 


§21 


. 527 


§ 138 








464, 465 


c. 11, § 12 


. 504 


c. 76, §3 








. 403 


§334 . 


. 390 


• §6 








. 734 


c. 15, § 33 


. 390 


c. 80. § 1 








512, 514 


c. 17, § 5 


. 482 


§ 1. cl. a 








. 125 


§8 


. 479, 480, 481 


c. 90 








. 335 


c. 18, § 11 


26, 698, 699, 700 


c. 91. §4 








. 629 


c. 19, § 9 


. 725 


§91 








. 589 


§11 


... .244 


c. 96, §23 








. 63 


§23 


. 528 


c. 100, § 17 








. 36 


§25 . 


. 129, 148, 149 


§21 








. 170 


c. 20, § 1 


. 182, 277 


§ 23 








. 218 


§§ 13, 20 


. 9 


§26 








. 170 


c. 25, § 15 


. 75, 435 


§45 








190, 424 


c. 26, § 16 


31,32 


§49 








104. 109 


c. 29. § 18 


. 258 


§62 








. 36 


c. 42. § 1 


448, 449, 574, 609 


§88 








. 137 


§42 


. 361 


§89 








. 138 


§43 


. 586 


c. 102, § 69 








. 542 


§44 


. 422 


§ 172 








. 716 


c. 44, § 1 


. 308, 574, 582 


c. 106, § 70 








180, 181 


c. 46, § 1 


. 656 


c. 108, §§35,3 


3 






. 425 


§6 


. 657 


c. 109, § 5 








. 186 


c. 49, §§ 1-36 . 


. 561 


c. Ill, §74 








. 151 


§12 


. 561, 562 


c. 112. § 23 








. 150 


§22 


. 202, 561 


§24 








. 151 


§36 


. 561, 562 


c. 113, § 37 








682. 688 


§45 


. 202 


c. 114. § 1 








. 39 


c. 56, § 55 


. 522 


c. 115 . 








. 119 


c. 57, § 78 


. 188 


§3 








117, 122 


c. 62, § 11 


. 343 


§4 








. 120 


§12 


. 344 


c. 116 . 








. 661 



XVI 



STATUTES CITED. 



Revised Laws — Con. 



c. 116, § 34 . 

§38 . 

c. 125 

§§ 20-22 

c. 133, § 2 

c. 154, § 7 
c. 156, § 4 
c. 159, § 3 
c. 160, §§ 9, 13 
c. 161, §§ 1, 10 
c. 163, § 34 
c. 165, § 85 
c. 174, §§1-11 

§6 

c. 204, § 42 
c. 208, § 26 



PAGE 






PAGE 


. 220 


c. 208, 


§75 . 


. 329, 330 


. 689 


c. 212, 


§55 . 


. 448 


. 137 




§§70,71, 72, 73 


. 693,694 


. 278 




§§ 76, 77, 86 . 


692, 693, 694 


. 190 


c. 215, 


§1 


. 550 


. 190 


c. 217, 


§11 . 


. 596, 710 


. 28 




§92 . 


. 187 


. 690 


c. 223 


§19 . 


. Ill 


. 177 


c. 224 


§§ 16, IS 


. 227 


. 155 


c. 225 


§§ 69, 70 


. 731, 732 


. 681 




§ 114 . 


. 432 


. 272 




§ 115 . 


. 235,432 


2,687 




§117 . 


141, 143, 432 


. 684 




§ 118 . 


. 432 


. 187 




§ 121 . 


. 434,448 


. 728 




§123 . 


. 435,447 



General Laws. 



c. 14, § 40 
c. 18, § 31 



AGE 




480 


c. 127, §§ 85, 86 


390 


§§ 128-149 



page 
. 731 
. 731 



CASES CITED. 



XVll 



Table of Cases cited in this Volume. 



PAGE 

Abbott V. Doane, 163 Mass. 433 . 327 

Abington v. Duxbury, 105 Mass. 287 . 302 
Adair v. United States, 208 U. S. 161 486, 
488, 489 
Adams v. Lytle, 154 Fed. 876 . . 338 

V. Tanner, 224 U. S. 590 486, 487, 488 

iEtna Ins. Co. v. Johnson, 21 Am. Rep. 

223 704 

iEtna Life Ins. Co. v. Hardison, 199 

Mass. 181 3 

Ainslie v. Martin, 9 Mass. 454 . . 637 

Allgeyer v. Louisiana, 165 U. S. 578 . 486 
Arlington Board of Survey v. Bay State 

Ry. Co., 224 Mass. 463 . . . 644 

Arrowsmith v. Dickenson, 20 Q. B. D. 

252 119 

Atchison, &c., R. Co. v. Campbell, 61 

Kan. 439 509 

Atkin V. Kansas, 191 U. S. 207 . . 490 

Atkins V. Albree, 12 Allen, 359 . . 78 

Atlas Bank v. Nahant Bank, 23 Pick. 

480 682 

3 Met. 581 .. . 682 

Attorney-General v. Apportionment 

Commissioners, 224 Mass. 598 . 503 

V. Boston, 123 Mass. 460 . . 323 

V. Drohan, 169 Mass. 534 . 548, 616 

V. Herrick, 190 Mass. 307 . . 379 

V. Stratton, 194 Mass. 51 . .14 

V. Tillinghast, 203 Mass. 539 25, 177, 

538, 548, 724. 725 
Auburn v. Union Water Power Co., 9 

Me. 376 379 

Avery v. Stewart, 1 Cush. 496 . . 519 

Ayers v. Knox, 7 Mass. 309 . . 121 

Baggaley v. Pittsburg & Lake Superior 

Iron Co., 90 Fed. Rep. 636 . .119 

Bardwell v. Purrington, 107 Mass. 419 483 
Barnstable Savings Bank v. Higgins, 

124 Mass. 115 . . . .302 

V. Snow, 128 Mass. 512 . . 682 

Bates V. Boston & New York Central 

R.R., 10 Allen, 256 .. . 301 



PAGE 

. 376 



70 
623 



413 
519 



Baxter r. Rodman, 3 Pick. 435 . 
Bear Lake Irrigation Co. v. Garland, 

164 U. S. 1 

Bergeron, Petitioner, 220 Mass. 472 . 
Black t. Delaware & Raritan Canal 

Co., 9 N. J. Eq. 455 . 
Blackburn v. Walpole, 9 Pick. 97 
Blanchard v. Stearns, 5 Met. 298 503, 504 
Bogni V. Perotti, 224 Mass. 152 . 486, 491 
Boston & Lowell R.R. Co. v. Salem & 

Lowell R.R. Co., 2 Gray, 1 . .413 

Boston Fish Market Corp. v. Boston, 
224 Mass. 31 . . . .202 

V. Commonwealth, 224 Mass. 31 179 

Boston Railroad Holding Co. v. Com- 
monwealth, 215 Mass. 493 . . 39 
Bradford v. Metcalf, 185 Mass. 205 . 64 
Braslin v. Somerville Horse R.R. Co., 

145 Mass. 64 . . . .103 

Brazee v. Michigan, 241 U. S. 340 486, 487 
Briggs V. Light-boats, 11 Allen, 157 . 446 
Brodbine v. Revere, 182 Mass. 598 363, 541 
Brooks V. West Springfield, 193 Mass. 

190 557 

Brophy v. Apportionment Commis- 
sioners, 225 Mass. 124 . . . 503 
Brown v. New Bedford Institution for 
Savings, 137 Mass. 262 . . . 690 

V. Russell, 166 Mass. 14 . . 724 

V. Turner, 176 Mass. 9 . .323 

— — V. Maryland, 12 Wheat. 419 . 575 
Browne v. Dexter, 66 Cal. 39 . 638, 639 
Bucher v. Fitchburg R.R., 131 Mass. 
156 301, 302 



Buck V. Dowley, 16 Gray, 555 . 
Bullock V. Aldrich, 11 Gray, 206 
Bunting v. Oregon, 243 U. S. 426 
Burlingame v. Bell, 16 Mass. 318 
Burr V. Boston, 208 Mass. 537 . 
Burt V. Burt, 168 Mass. 204 
Butchers Slaughtering Assn. v. Boston 

214 Mass. 254 . . 

Calais v. Marshfield, 30 Me. 511 



301 

28 
488 
623 



. 587 
. 638 



XVlll 



CASES CITED. 



PAGE 

Call V. Hagger, 8 Mass. 423 . 301 

Cambra v. Santos, 233 Mass. 131 . 376 

Cambridge v. Boston, 130 Mass. 357 302, 
503, 547 
Cameron v. United States, 231 U. S. 

710 303 

Capen v. Foster, 12 Pick. 485 503, 504, 616, 
641, 642 
Cary Library v. Bliss, 151 Mass. 364 312 
Charlestown v. Groveland, 15 Gray, 15 126 
Chew Heong v. United States, 112 

U. S. 536 303 

Chicago, R. I. & P. Ry. v. Ketchum, 

212 Fed. Rep. 986 ... 509 

Church of Holy Trinity v. United 

States, 143 U. S. 457 . . . 623 

City of Cincinnati v. Louisville & Nash- 
ville R.R. Co., 223 U. S. 390 . . 414 
Clark V. Northampton Bank, 160 Mass. 

26 681 

Clemons Electrical Mfg. Co. v. Walton, 

206 Mass. 215 ... . 102 

Colt V. Brown, 12 Gray, 233 . 681, 682 
Comits V. Parkerson, 56 Fed. Rep. 556 676 
Commercial Bank v. Armstrong, 148 

U. S. 50 . . . . 461, 462 

Commonwealth v. Boston & Maine 

R.R., 222 Mass. 206 . 328, 486, 488, 
489, 491 
V. Boston & Northern St. Ry. 

Co., 212 Mass. 82 ... 509 

V. Clary, 8 Mass. 72 . . . 522 

V. Coe, 115 Mass. 481 . . 728 

V. Connecticut Valley St. Ry., 

196 Mass. 309 ... . 509 

V. Cooley, 1 Allen, 358 . . 29 

V. Cronan, 220 Mass. 467 . . 108 

V. Essex Co., 13 Gray, 239 . 78 

V. Hamilton Mfg. Co., 120 Mass. 

383 489 

V. Hana, 195 Mass. 262 . . 58 

V. Hanley, 9 Penn. St. 513 . 10 

V. Harris, 231 Mass. 584 . . 507 

V. Hartnett, 3 Gray, 150 . . 121 

V. Hawkes, 123 Mass. 525 . . 23 

V. Hayes, 149 Mass. 32 . . 302 

V. Homer, 153 Mass. 343 . . 302 

V. Horregan, 127 Mass. 450 . 507 

V. Howe, 132 Mass. 250 . . 728 

V. Ingersoll, 145 Mass. 381 . 402 

V. Inhabitants of Dracut, 8 Gray, 

455 122 



Commonwealth v. Interstate Consol 
dated Ry., 187 Mass. 436 

V. Kiley, 150 Mass. 325 

V. Kimball, 24 Pick. 366 

V. Lincoln, 11 Allen, 233 

V. Lockwood, 109 Mass. 323 

V. Mixer, 207 Mass. 141 

V. Old Colony & Fall River 

14 Gray, 93 . 

V. Patsone, 231 Pa. St. 46 

V. Pear, 183 Mass. 242 

V. Peoples Express Co., 201 

564 . 

t. Perry, 155 Mass. 117 

V. Petranich, 183 Mass. 217 



Phccnix Bank, 



PAGE 

. 509 
. 401 
. 122 
. 728 
. 387 
. 106 
R.R., 

. 301 
. 499 
. 464 
Mass. 

. 107 

486, 490 

56 

11 Met. 129 681, 
682, 692 



528, 542 
. 171 
. 489 
. 302 
. 616 
. 263 



. 246 
. 561 
. 264 
. 302 
184 
55,81 



V. Plaisted, 148 Mass. 375 

V. Ramsdell, 130 Mass. 68 

V. Riley, 210 Mass. 387 

V. Roberts, 166 Mass. 281 

V. Rogers, 181 Mass. 184 

t. Sherman, 191 Mass. 4.39 

V. Shoe & Leather Dealers Ins. 

Co., 112 Mass. 131 .. . 682 

V. Strauss, 191 Mass. 545 . . 88 

V. Sudbury, 106 Mass. 268 . 125, 301, 

302 

V. Tuck, 20 Pick. 364 

V. Whitney, 190 Mass. 531 

I'. Willard, 22 Pick. 476 

Conant v. Newton, 126 Mass. 105 
Connolly v. Union Sewer Pipe, 

U. S. 540 . 
Contributors of the Pennsylvania 

Hospital V. City of Phila., 245 

U. S. 20 414 

Cook V. United States, 138 U. S. 157 . 303 
Cooke V. Inhabitants of Scituate, 201 

Mass. 107 . . . . 8, 48 

Coppage V. Kansas, 236 U. S. 1 486, 489 
Corcoran v. Boston, 185 Mass. 325 202, 
342, 655 
Cox's Cases, 225 Mass. 220 . . 76 

Cromwell v. Parsons, 219 Mass. 299 . 684 
Cummings v. State of Missouri, 4 Wall. 

277 

Dalton V. Salem, 139 Mass. 91 . 
Dartmouth College v. Woodward, 4 

Wheat. 518 

Dash V. Van Kleeck, 7 Johns. 477 
Davis V. Chilmark, 199 Mass. 113 



333 

304 

312 
303 
435 



CASES CITED. 



XIX 



Davis V. Old Colony R.R. Co., 131 

Mass. 258 103 

Demmon v. Boylston Bank, 5 Cush. 194 681 
Denny s. Mattoon, 2 Allen, 361 . 503 

Denver v. Denver Union Water Co., 

246 U. S. 178 . . . . 485 

Devney's Case, 223 Mass. 270 . . 280 

Dimick v. Barry, 211 Mass. 165 . 538 

Dodge V. Williams, 46 Wis. 70 . . 654 

Donovan v. Apportionment Commis- 
sioners, 225 Mass. 55 . . . 503 
Dunn V. Framingham, 132 Mass. 436 . 75 
Eisner v. Macomber, 252 U. S. 189 547, 
619, 623 
Eliot V. Freeman, 220 U. S. 178 . 624 
Erb V. Morasch, 177 U. S. 584 . . 292 
Erie R.R. Co. v. New York, 233 U. S. 

671 572 

Essex County v. Salem, 153 Mass. 141 202 
Ex parte Dickey, 144 Cal. 234 . 487, 491 

Garland, 4 Wall. 3.33 . . 334 

Griffin, 237 Fed. Rep. 445 . 638, 639 

Hart, 63 Fed. Rep. 249 . . 596 

Pfirrman, 134 Cal. 143 . . 56 

Reggel, 114 U. S. 642 . . 710 

Farmers Loan & Trust Co. v. Chicago, 

27 Fed. Rep. 50 . . . .270 

Farr Alpaca Co. v. Commonwealth, 212 

Mass. 156 716 

Fay V. Salem & Danvers Aqueduct 

Co.. Ill Mass. 27 ... 647 

Fickett V. Durham, 119 Mass. 159 . 302 
Firemen's Fire Ins. Co. v. Common- 
wealth, 137 Mass. 80 . 557, 558, 716 
Fitchburg R.R. Co. v. Grand Junction 

R.R., &c., Co., 1 Allen, 552 . . 24 

Forster v. Forster, 129 Mass. 559 . 503 

Freeman's National Bank v. National 

Tube Works, 151 Mass. 413 . 461, 462 
French v. Jones, 191 Mass. 522 . . 103 

V. Quincy, 3 Allen. 9 . . . 332 

Friend v. Gilbert, 108 Mass. 408 . 327 

Furber v. Dane, 203 Mass. 108 . . 690 

Gardner v. Lowell, 221 Mass. 150 . 724 

V. Lucas, 3 App. Gas. 582 . . 303 

Garfield v. Bemis, 2 Allen, 435 . . 301 

George v. Chicago, R.I. & P. Ry. Co., 
214 Mo. 551 .... 509 

V. School Dist. in Mendon, 6 Met. 

497 48 

German Alliance Ins. Co. v. Kansas, 
233 U. S. 389 .. . 485, 486 



PAGE 

Gerry v. Stoneham, 1 Allen, 319 . 301 
Gibbons v. Ogden, 9 Wheat. 1 . . 338 
Gilman v. Sheboygan, 2 Black. 510 . 5.33 
Gleason v. Boston, 144 Mass. 25 . 121 
V. Inhabitants of West Boylston, 

136 Mass. 489 ... . 591 

Gould V. City of Lawrence, 160 Mass. 

232 513 

Graham v. Folsom, 200 U. S. 248 . 532 

V. Horton, 6 Kan. 343 . . 531 

Gray v. Portland Bank, 3 Mass. 363 . 78 
Greenfield Savings Bank v. Common- 
wealth, 211 Mass. 207 . . . 565 
Gunn V. Cambridge Railroad, 144 

Mass. 430 302 

Haley v. Boston, 191 Mass. 291 . 14 

Hamilton ^. Kentucky Distilleries Co., 

251 U. S. 146 . . . . 602 
Hans V. Louisiana, 134 U. S. 1 . . 532 
Hartman v. Greenbow, 102 U. S. 672 . 532 
Hathaway v. Everett, 205 Mass. 246 . 14 
V. Fall River Nat. Bank, 131 

Mass. 14 690 

Haverhill v. Marlborough, 187 Mass. 

150 302 

Hawke v. Smith, 253 U. S. 221 . . 642 

Haynes v. Jenks, 2 Pick. 172 . . 122 

Heim v. McCall, 239 U. S. 175 . . 490 

Hennington v. Georgia, 163 U. S. 299 . 338 
Herrick v. Boquillas Land & Cattle Co., 

200 U. S. 96 . . . . 303 

Hewins v. London Assurance Corp., 

184 Mass. 177 ... . 704 

Hijo V. United States, 194 U. S. 315 . 602 
Hill V. Bacon, 110 Mass. 387 . . 715 

V. Duncan, 110 Mass. 238 . . 302 

Hittinger v. Fames, 121 Mass. 539 . 647 
Holcombe v. Creamer, 231 Mass. 99 . 489 
Holden v. Hardy, 169 U. S. 366 . 488 

Holland v. Lynn & Boston R.R., 144 

Mass. 425 302 

Holter L. Co. v. Firemen's Fund Ins. 

Co., 45 Pac. 207 . . . . 704 

Holy Trinity Church v. United States, 

143 U. S. 457 . . . . 548 

Hopedale Mfg. Co. v. Clinton Cotton 

Mills, 224 Mass. 193 . . . 690 

Hoshor-Platt v. Miller, 190 Mass. 285 690 
Hotchkiss V. Finan, 105 Mass. 86 . 302 

Houston & Texas Ry. v. United States, 

234 U. S. 342 . . . . 572 

Hubbard v. Hamilton Bank, 7 Met. 340 682 



XX 



CASES CITED. 



PAGE 

Hurtado v. California, 110 U. S. 516 . 507 
Hutchinson v. Brock, 11 Mass. 118 . 286 
Hyde v. Fall River, 189 Mass. 439 . 561 
In re Cook, 49 Fed. Rep. 833 . . 709 
Covington Lumber Co., 225 Fed. 

Rep. 444 652 

Fairchild, 151 N. Y. 359 . . 618 

Look Tin Sing, 21 Fed. Rep. 905 638 

Providence Voters, 13 R. I. 737 . 226 

Tyler, 149 U. S. 164 . . 295, 430 

Ingersoll v. Hopkins, 170 Mass. 401 . 302 
Inhabitants of Great Harrington v. 

County Commissioners, 152 Mass. 

372 

Inhabitants of Paris v. Inhabitants of 

Hiram, 12 Mass. 262 . 

Somerset v. Inhabitants of 

Dighton, 12 Mass. 383 . 

Worcester County v. Mayor & 

Aldermen of Worcester, 116 Mass. 
193 

Insurance Co. v. Davis, 95 U. S. 425 . 
International Harvester Co. v. Missouri, 

324 U. S. 199 
J. S. Lang Eng. Co. v. Commonwealth, 

231 Mass. 367 ... . 

Jacobson v. Massachusetts, 197 U. S. 

11 

Jaquith v. Selectmen of Wellesley, 171 

Mass. 138 

Jenkins v. Andover, 103 Mass. 94 
Johannesen v. United States, 225 U. S. 

227 

Johnson v. Somerville, 195 Mass. 370 . 
Jones V. Arena Pub. Co., 171 Mass. 22 682 

V. Robbins, 8 Gray, 329 66, 506, 507 

Juando v. Taylor, 2 Paine, 652 . 638, 639 
Kansas City Ry. Co. v. State, 90 Ark. 

343 338 

Kelly V. Boston & Maine R.R., 135 

Mass. 448 . . . .301, 302 



705 



226 



121 



342 
44 



82 



683 



464 



616 
574 



334 
13 



Kendall v. Kingston, 5 Mass. 524 
Kershaw v. Kelsey, 100 Mass. 561 
Kilbourn v. Thompson, 103 U. S. 168 
Kimberlim v. State, 130 Ind. 120 
King V. Tirrell, 2 Gray, 331 
Kingman, Petitioner, 153 Mass. 566 



503 

42 

503 

10 

301 

323, 

326 

Kinneen v. Wells, 144 Mass. 497 503, 504, 

547, 616, 641 

Knight V. Lee, 1 Q. B. 41 . . . 303 

Knode v. Baldridge, 73 Ind. 54 . . 226 



Lake Shore & Michigan Southern Ry. 

Co.?). Smith, 173 U.S. 684 
Lee V. Lynn, 223 Mass. 109 
Leisy v. Hardin, 135 U. S. 100 . 
Lesuer's Case, 227 Mass. 44 
Lizotte V. Dloska, 200 Mass. 327 
Lochner v. New York, 198 U. S. 



PAGE 

. 509 
. 490 
. 575 
. 280 
. 387 
327, 



486, 488, 489, 490 
Lombard, Appellant, 88 Me. 587 . 303 
Louisiana v. Jumel, 107 U. S. 711 . 532 
V. New York Guaranty & In- 
demnity Co., 134 U. S. 230 . . 532 

V. Pillsbury, 105 U. S. 278 . . 532 

Lowell V. County Commisssioners, 152 
• Mass. 372 . 
MacKenzie v. Hare, 239 U. S. 299 



705 

638, 

678 

Malette v. Spokane, 77 Wash. 205 . 490 

Manufacturers Bank v. Continental 

Bank, 148 Mass. 553 . . 461, 462 

Marbury v. Madison, 1 Cranch, 137 . 503 
Mason v. Intercolonial Railway, 197 

Mass. 349 446 

Massachusetts Election Cases . . 618 

Maynard t. Royal Worcester Corset 

Co., 200 Mass. 1 . . . .698 

McCarty v. DeBest, 120 Mass. 89 . 302 
McClallen v. Adams, 19 Pick. 333 . 463 
McCuUough V. Virginia, 172 U. S. 102 532 
McCully V. Chicago, B. & Q. R.R., 212 

Mo. 1 509 

McGahey v. Virginia, 135 U. S. 662 . 532 
McGlue V. County Commissioners, 225 

Mass. 59 503 

Mcllwaine v. Coxe, 4 Cranch, 209 . 637 
McNamara v. Boston & Maine R.R., 

216 Mass. 506 ... . 304 

McNichols V. Pease, 207 U. S. 100 . 710 
McPherson v. Blacker, 146 U. S. 1 . 618 
McReynolds v. Smallhouse, 8 Bush. 

(Ky.), 447 531 

Merrick v. Amherst, 12 Allen, 500 . 574 
Merrill v. Cape Ann Granite Co., 161 

Mass. 212 . . . . 682, 684 

Milford V. County Commissioners, 213 

Mass. 162 . . . 603, 622, 634 

Milford Water Co. v. Hopkinton, 192 

Mass. 491 19 

Miller v. The Resolution, 2 Dall. 1 . 637 
Minnesota Rate Cases, 230 U. S. 352 323, 

572 
Minor V. Haffersett, 21 Wall. 162 . 617 



CASES CITED. 



XXI 



PAGE 

Missouri, Kansas & Texas Ry. Co. v. 

Haber, 169 U. S. 613 . . . 338 

Mobile V. Watson, 116 U. S. 289 . 532 

Mohr V. Williams, 95 Minn. 261 . 464 

Moneyweight Scale Co. v. McBride, 

199 Mass. 503 .. . 658, 659 

Monongahela Navigation Co. v. United 

States, 148 U. S. 312 . . 503, 547 



303 
622 
338 
24 
302 

89 
86 



Moon V. Durden, 2 Exch. 22 
Moore v. Stoddard, 206 Mass. 395 
Morgan v. Louisiana, 118 U. S. 455 
Morrill V. Haines, 2 N. H. 246 . 
Mosher v. Murphy, 121 Mass. 276 
Mountain Timber Co. v. Washington, 
75 Wash. 235 ... , 

243 U. S. 219 . 

Munkley v. Hoyt, 179 Mass. 108 387, 402 
Munn V. Illinois, 94 U. S. 113 . 485, 486 
Murphy v. Commonwealth, 172 Mass. 

264 302 

Murray v. Gibson, 15 How. 421 . 303 

Mutual Film Co. v. Industrial Com- 
mission of Ohio, 215 Fed. Rep. 138 575 
National Mahaiwe Bank v. Peck, 127 

Mass. 298 

New York Central R.R. Co. v. White, 
243 U. S. 188 

V. Winfield, 244 U. S. 147 . 

New York, Housatonic & Northern 
R.R. Co. V. Boston, Hartford & 
Erie R.R. Co., 36 Conn. 196 . 
New York Life Ins. Co. v. Hardison, 
199 Mass. 190 ... . 

N. Y., N. H. & H. R.R. Co. v. New 
York, 165 U. S. 628 .. . 

V. Offield, 77 Conn. 417 . 

Newcomb v. Rockport, 183 Mass. 74 . 

Nolan's Case, 122 Mass. 601 

North Bridgewater Bank v. Copeland, 

7 Allen, 139 301 

North Bridgewater Savings Bank v. 

Soule, 129 Mass. 528 . . . 682 

North Carolina v. Temple, 134 U. S. 22 532 
Northern Pacific Ry. v. Washington, 

222 U. S. 370 . . . . 572 

Norton v. Spooner, 9 Moore P. C. 129 74 
Old Colony R.R. Corp. v. Evans, 6 

Gray, 25, 38 .... 38 

Old Colony Trust Co. v. Common- 
wealth, 220 Mass. 409 . . 93, 683 
Olszewski V. Goldberg, 223 Mass. 27 . 402 
Opinion of the Justices (R.I.) , 14 R.I. 649 21 



681 



85 
572 



414 



338 
414 
435 
507 



Opinion of the Justices, 7 Mass. 523 



PAGE 

. 390 



. 479 

. 503, 504 

. 480, 481 

333, .390, 481, 616 

. 28 

. 390 

. 481 

. 480, 481, 501 

. 390, 480, 481 

. 332 

. 468, 532 

. 85 

. 485, 486 

501, 503, 504 

. 507 

. .301 

. 531 

. 531 



323 
490 



481, 



13 Allen, 593 

5 Met. 591 

107 Mass. 604 

115 Mass. 602 

117 Mass. 603 

122 Mass. 594 

136 Mass. 578 

150 Mass. 586 

165 Mass. 599 

182 Mass. 605 

190 Mass. 605 

209 Mass. 607 

220 Mass. 627 

226 Mass. 607 

232 Mass. 601 . 

Page V. Melvin, 10 Gray, 208 . 
Park r. Candler, 113 Ga. 647 

114 Ga. 466 

Patsone v. Pennsylvania, 232 U. S. 

138 

Pennsylvania Steel Co. v. New York 

City Ry. Co., 198 Fed. Rep. 721 . 
People V. Coler, 166 N. Y. 1 
V. New York Society for the Pre- 
vention of Cruelty to Children, 162 

N. Y. 429 

V. Shoonmaker, 63 Barbour's, 44 . 

». Truckee Lumber Co., 116 Cal. 

397 

Pequignot v. Detroit, 16 Fed, 

211 ... . 

Perry v. Pye, 215 Mass. 403 
Pierce v. Cabot, 159 Mass. 202 

V. Carskaden, 16 Wall. 234 

Pigeon's Case, 216 Mass. 51 
Pratt V. Davis, 224 111. 300 
Prince v. Crocker, 166 Mass. 347 
Purchase v. Seelye, 231 Mass. 434 
Queen, The, v. Ipswich Union, 2 Q. B. 

D. 269 

Queen v. Mayor of Oldham, L. R. 3 

Q. B. 474 

Ralls County Court v. United States, 

105 U. S. 733 
Rasmussen v. Idaho, 181 U. S. 198 . 
Rea V. Aldermen of Everett, 217 Mass. 

427 

Read v. Boston & Albany R.R., 140 

Mass. 199 

Reid V. Colorado, 187 U. S. 137 . 
Reynolds v. McArthur, 2 Pet. 417 



654 
270 



Rep. 

. 676 
. 684* 
302, 304 
. 334 
. 89 
. 464 
. 323 
463 



303 



74 



532 

338 



302 
338 
303 



XXll 



CASES CITED. 



PAGE 

Rhode Island v. Palmer. 253 tJ. S. 350 642 
Richardson v. Boston. 148 Mass. 508 . 715 

V. Sibley, 11 Allen, 65 . . 102 

Roberts v. Reilly, 116 U. S. 80 . 709, 710 
Robinson's Case, 131 Mass. 376 481. 482. 

501 
Robinson v. Premium Oil Pipe Line 

Ltd.. 2 Chancery. 124 . . . 42 

Rochester Tumbler Works v. Mitchell- 
Woodbury Co., 215 Mass. 194 . 684 
Rowe V. Granite Bridge Corp., 21 Pick. 

344 648 

Royall V. Virginia, 116 U. S. 572 . . 532 

Ruckgaber v. Moore, 104 Fed. Rep. 947 677 
St. Louis & S. F. Ry. Go. v. Johnston. 

133 U. S. 566 . . . . 462 

San Antonio T. Co. v. Altgelt. 200 U. S. 

304 509 

Sands v. Edmunds, 116 U. S. 585 . 532 

Sanford v. Hampden Paint & Chemical 

Co.. 179 Mass. 10 ... 302 

Santissima Trinidad, 7 Wheat. 283 . 638 
Scholefield v. Eichelberger. 7 Pet. 586 43 
Schollenberger v. Pennsylvania. 171 

U. S. 1 575 

Schooner Exchange v. M'Faddon. 7 

Cranch, 116 . . .446 

Seaver v. Weston. 163 Mass. 202 . 684 

Second Soc. of Universalists v. Royal 

Ins. Co.. 221 Mass. 518 . . 704 

Selectmen of Amesbury v. Citizens 

Street Ry. Co.. 199 Mass. 394 . . 293 

Shallow V. City of Salem. 136 Mass. 136 303 
Shanks t. Dupont. 3 Pet. 242 637, 675. 679 
Sheffield v. Otis. 107 Mass. 282 . 136, 148 
Sheldon v. Boston & AUjany R.R.. 172 

Mass. 180 561 

Simpson v. Story, 145 Mass. 497 . 121 

Sims V. Police Commissioner, 193 Mass. 

547 528 

Sinclair v. Fall River. 198 Mass. 248 468. 

533 
Snell V. Bridge-water Cotton Gin Mfg. 



Co., 24 Pick. 296 . 
Somerset v. Dighton, 12 Me 



383 



Spaulding v. Backus, 122 Mass. 553 

V. Knight, 116 Mass. 148 . 

V. Lowell, 23 Pick. 71 

Spokane v. Macho, 51 Wash. 322 

Staniels v. Raymond, 4 Gush. 314 122, 623 

State V. Adams, 45 la. 99 . . . 638 



122 

302, 
623 
690 

728 
332 

487 



PAGE 

. 283 
74 
10 
618 
10 
74 



State V. Corson, 67 N. J. L. 178 

V. Eskridge, 1 Swan (Tenn.) 413 

V. Hayes, 91 Miss. 755 

?i. Lindahl, 11 N. D. 320 . 

V. Metcalf. 80 Ohio St. 244 

V. Miller, 23 Wis. 634 

V. Mountain Timber Co., 75 

Wash. 581 89 

V. Richardson, 34 Minn. 115 . 595 

State ex rel. v. Wright, 56 Ohio St. 540 11 
Steamship Co. v. Joliffe, 2 Wall. 450 . 70 
Stetson V. Exchange Bank, 7 Gray, 425 690 
Stone V. Smith, 159 Mass. 413 . . 504 

Street v. Varney Electrical Supply Co., 

160 Ind. 338 .... 490 

Swan Brewery Co. Ltd. v. Rex, A. C. 

231 . 



V. Sayles. 165 Mass. 177 . 

Swann v. Buck. 40 Miss. 268 
Tax Commissioner v. Garfield, 

Mass. 522 . 
V. Putnam. 227 Mass. 522 



. 620 
. 302 
. 74 
227 

619. 620 
620.621, 
623. 625 
Teasdale v. Newell, etc., Const. Co., 

192 Mass. 440 . 50, 128, 541, 561 

Tinkham v. Tapscott, 17 N. Y. 141 . 119 
Towle V. Towle, 114 Mass. 167 . . 302 

Towne v. Eisner, 245 U. S. 418 . 619, 623 
Tremont & Suffolk Mills v. Lowell, 

178 Mass. 469 ... . 716 

Truax v. Raich. 239 U. S. 33 . . 490 

Trustees of the Wabash & Erie Canal 

Co. V. Beers. 2 Black. 448 . . 532 

Union Pacific R.R. v. Laramie. 231 

U. S. 190 303 

United Hebrew Benevolent Assn. v. 

Benshimol. 130 Mass. 325 . . 70 

United States v. Harris. 177 U. S. 305 . 292 

V. Nixon. 235 U. S. 231 . . 292 

Von Hoffman v. Quincy. 4 Wall. 535 . 532 
Wallenburg v. Mo. Pac. Rwy. Co., 159 

Fed. Rep. 217 .. . 678, 679 

Walling V. Lansdon, 15 Ida. 282 . . 618 

Warwick v. Rhode Island Hospital 

Trust Co.. 38 R. I. 517 . . . 532 

Watts, Watts & Co. v. Unione Aus- 

triaca Di Navigazione, 224 Fed. Rep. 

188 44 

Wayland v. Middlesex County Com- 
missioners. 4 Gray, 500 . . .19 
Webber Lumber Co. v. Shaw, 189 

Mass. 366 715 



CASES CITED. 



XXUl 



PAGE 

Weld V. Gas Commission, 197 Mass. 556 439 
Western German Bank v. Norwell, 

134 Fed. Rep. 724 ... 462 

Wheelock v. Lowell, 196 Mass. 220 . 332 
Wheelwright v. Greer, 10 Allen, 389 . 301 

V. Tax Commissioner, 235 Mass. 

584 . . . 603, 622, 632, 634 

White V. Creamer, 175 Mass. 567 387, 402 
White's Case, 226 Mass. 517 . . 280 

Whitman v. Hapgood, 10 Mass. 437 . 301 
Whitney v. Commonwealth, 190 Mass. 
531 541, 542 

V. Van Buskirk, 40 N. J. L. 463 116 

Whitten V. Hayden, 7 Allen, 407 . 301 

Wild V. Boston & Maine R.R., 171 

Mass. 245 302 



PAGE 

Wiley V. Bunker Hill Nat. Bank, 183 

Mass. 495 690 

Wilson V. New, 243 U. S. 332 . . 488 

Waters v. Benvoulois, 172 Mass. 286 . 75 
Wood V. Boylston Bank, 129 Mass. 

358 681 

Woods V. Woburn, 220 Mass. 416 . 490 

Worcester v. Barre, 138 Mass. 101 . 302 

V. Western R.R. Corp., 4 Met. 564 322 

— — County V. Worcester, 116 Mass. 

193 655, 656 

Worden v. New Bedford, 131 Mass. 23 332 
Worthy v. Barrett, 63 N. C. 199 . 24 

Wright V. Oakley, 5 Met. 400 . . 70 

Wyeth t. Cambridge, 200 Mass. 474 . 485 
Young V. Duncan, 218 Mass. 346 . 85 



OPINIONS 

OF 

HENRY C. ATTWILL, ATTORNEY-GENERAL. 



Public Warehouseman, Definition of. 

A department store which has a cold-storage department for the storage of furs of 
its customers is required to file a bond and procure a license as a public ware- 
houseman, under the provisions of Gen. St. 1915, c. 98, if it makes a charge for 
such storage or if such storage was not part of the arrangement entered into 
when the furs were purchased by the customer; otherwise it is not required to 
do so. 

You request my opinion as to whether or not a department To the 

. Governor. 

store which has a cold-storage department for the storage of j^^^ 25 
the furs of its customers is required to file a bond and procure a ~~ 
license as a public warehouseman under the provisions of Gen. 
St. 1915, c. 98. 

That act defines a public warehouse and a public ware- 
houseman in the following terms: — 

The words "public warehouse," as used in this chapter, shall mean any 
building, or part of a building, kept and maintained for the storage of 
goods, wares and merchandise as a business; and the words "public ware- 
houseman" shall mean any person, corporation, partnership, association 
or trustees keeping and maintaining a public warehouse as defined in this 
section. 

The warehouse receipts act (St. 1907. c. 582) contains the 
following definition: — 

"Warehouseman" means a person lawfully engaged in the business of 
storing goods for profit. 

The foregoing definitions are very broad, and, in my opin- 
ion, include all persons or corporations engaged in storing any 
goods, wares or merchandise for profit. 



OPINIONS OF THE ATTORNEY-GENERAL. 

Accordingly, if a department store makes a charge to its 
customers for the storage of furs, it comes within the provi- 
sions of Gen. St. 1915, c. 98, and is required to file a bond 
and procure a license as a public warehouseman. If such 
department store is storing furs for its customers without 
making a charge therefor, or as part of an arrangement en- 
tered into when the furs were purchased by the customer, in 
my opinion it does not come within the provisions of the 
statute. 



Insurance — Form of Policy — Duty of Insurance Com- 
missioner IN Approving. 

Whether the issuance by an insurance companj' of a policy of accident insurance 

containing no provision for cancellation by the company is a violation of St. 

1910, c. 493, qvwre. 
The fact that the Insurance Commissioner approved the form of such a policy does 

not constitute evidence either of incompetency or failure to act honestly or in 

good faith. 

Govenior. You havc rcqucstcd my opinion upon the matters of law 

January 26. raiscd by rcasou of objection made to the action of the In- 
surance Commissioner in approving a certain policy form of 
accident insurance. 

Apparently this form was filed with the Commissioner and 
approved by him under the provisions of St. 1910, c. 493, § 1. 
It was to be known as a non-cancelable policy, and contained 
neither in form nor substance the provisions of the clause 
numbered 8 in said section. 

The statute mentioned provides that no policy of accident 
insurance shall be issued in this Commonwealth until a copy 
has been filed with the Insurance Commissioner at least thirty 
days, unless before the expiration of that time he approves 
it in writing, nor if the Insurance Commissioner notifies the 
company that in his opinion the form does not comply with 
the law, nor unless it is in certain form and contains certain 
provisions. These provisions are set forth in subsections 1 to 
9, inclusive. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 

Section 2 of the act provides that no policy shall be issued 
if it contains, in substance, certain specified provisions. 

Section 7 provides that any company or officer thereof 
"which issues or delivers in this commonwealth any accident 
or health policy or contract in wilful violation of the provi- 
sions of this act, shall be punished by a fine of not more than 
five hundred dollars for each offence, ..." 

This statute in substance and form is analogous to pro- 
visions of law applicable to life insurance companies and 
policies which had been in effect for some years. Those 
provisions have been interpreted by the Supreme Judicial 
Court, and so far as the enactments are the same, by a familiar 
rule of construction, the interpretation under the present act 
would also be the same. In ^t7ia Life his. Co. v. Hardison, 
199 Mass. 181, at 187, Knowlton, C.J., says: — 

Another question is whether the provisions which, in substance, must 
be inserted in the policy, must appear in a form substantially identical 
with that given in the statute, or whether it is enough if they contain 
everything, in meaning and legal effect, that the statute prescribes, and 
at the same time include other things relating to the same subject, no one 
of which impairs the force of that which is prescribed for the benefit of 
the insured. Inasmuch as the ten provisions referred to and the other 
prescribed parts of the policy were intended for the protection of the policy 
holder, we are of opinion that, if they are contained in substance in the 
policy, their form may be varied, and additional provisions beneficial to 
the insured may be inserted, provided the requirements of the statute are 
satisfied, and are left undiminished by that which is added. 

In Neiu York Life bis. Co. v. Hardison, 199 Mass. 190, it 
was held that a variation from the provisions required by the 
statute, by inserting terms more favorable to the insured than 
those prescribed, was permissible, and the action of the Insur- 
ance Commissioner in disapproving a policy under those 
circumstances was held to be erroneous. 

The court says, at page 194: — 

No departure from the exact provisions required by the statute should 
be permitted, unless it is too plain for doubt that the substitution is in 
every way as advantageous to the insured and as desirable as the pre- 
scribed provision. 



OPINIONS OF THE ATTORNEY-GENERAL. 

Other language in the opinion indicates that the examina- 
tion of the Commissioner is to make sure that "everything 
secured to the insured by the statute is secured by" the 
language of the policy. 

So far as the provisions of this statute were enacted for the 
sole purpose of protecting the assured, the principles of the 
foregoing cases would seem to govern. 

A decision as to the correctness of the Commissioner's ruling, 
therefore, would depend on a determination of the intent and 
purpose of the Legislature in the enactment of St. 1910, c. 
493. Many of the requirements of this act appear clearly to 
be in the interest of the policyholder, and to constitute pro- 
tection against imposition on the assured. 

Some of the required terms, however, do not, on their face, 
indicate such an intention, and no doubt arguments entitled 
to careful consideration could be made that the clause relating 
to cancellation is in the interest and for the protection of the 
company. The language of the statute is as follows: — 

8. A provision that the policy may be cancelled at any time by the com- 
pany by wi-itten notice delivered to the insured or mailed to him at his 
last address as shown by the records of the company and the tender of the 
company's check for the miearned portion of the premium, but that such 
cancellation shall be without prejudice to any claim arising on account of 
disability commencing prior to the date on which the cancellation takes 
effect. 

Nevertheless, under this requirement certain protection to 
the assured is created, in that cancellation can be made only 
by (1) a written notice to the assured, (2) tender of check for 
the unearned portion of the premium, and (3) without preju- 
dice to any claim on account of disability commencing prior 
to the date on which cancellation takes effect. 

Insurance policies might conceivably contain, and un- 
doubtedly in times past frequently have contained, cancella- 
tion clauses containing no such safeguards, and it may be that 
the Legislature intended, by the enactment of this provision, 
only to require cancellation clauses, when inserted, to contain 
at least this much protection to the assured. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 

A knowledge of the forms of policies issued prior to the 
enactment of the statute, of the history of the accident and 
health insurance business, and the conditons surrounding and 
affecting the same, such as the Insurance Commissioner is 
especially qualified to possess, would aid in determining the 
probable intention of the Legislature, and I am not prepared 
to say that his opinion was erroneous. 

It hardly seems to me that a decision of that question is 
necessary for disposition of the present complaint. 

The Insurance Commissioner, by his approval under this 
statute, confers no substantive rights upon the insurance 
company. The only effect of the approval is to permit the 
company to begin issuing policies, if they in fact conform to 
the law, without awaiting the expiration of the period of thirty 
days after filing with the Commissioner. 

If thirty days expire and the Commissioner does nothing, 
the company may then proceed to issue policies, provided 
they actually do comply with the law. If the Commissioner 
notifies the company that in his opinion the policy does not 
comply with the requirements of the statute, the company 
may have the Commissioner's opinion reviewed by the Supreme 
Judicial Court. But even though the Commissioner were pal- 
pably wrong in his opinion, the company is forbidden to issue 
the policy until his action shall have been reversed by the 
court. In other words, the Legislature has placed in the hands 
of an administrative officer the power of suspending business 
which seems to him improper, pending a decision by the 
court. Obviously, this is an important restriction of an im- 
portant business, to be exercised with discretion and not upon 
mere suspicion. The court has said : " His duty was to approve 
of every form of policy that seemed to him correct." (199 
Mass. at 197.) 

If the approval of the Commissioner were a grant of some 
right, he might well be overcautious in the matter of approval, 
compelling the companies to take an appeal in all doubtful 
cases. In the present case, however, the prohibition of the 
statute remains absolute, regardless of his action, and if the 



OPINIONS OF THE ATTORNEY-GENERAL. 

policy is contrary to the terms of the statute, the company, 
and its agent issuing the same, may be prosecuted in the 
criminal courts. Any person who feels that the law is being 
violated can present a complaint to the proper court or dis- 
trict attorney. 

In view of the language quoted above, it would not seem 
that the Insurance Commissioner had acted improperly, even 
though he were mistaken in his opinion, but that so long as 
he honestly held the opinion that the policy was lawful he 
ought not to interfere with the business of a company by dis- 
approving the form. 

The issues presented to Your Excellency by such a com- 
plaint as this must be based on a charge of incompetency or 
failure to act honestly or in good faith. 

The fact that the Commissioner has acted in the manner in- 
dicated and approved the form of policy stated does not, in 
my opinion, constitute evidence of either. Certainly the tend- 
ency of the decisions of the Supreme Judicial Court is along 
the line of this decision rather than contrary to it. His letter 
to the protestant shows a knowledge of the important cases 
upon the point, and an intention to make his action comply 
with those cases and the law, as understood by him. There is 
no suggestion of improper or corrupt motives. 

Accordingly, I am of the opinion that the papers and facts 
submitted to me do not call for any action on the part of Your 
Excellency. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 



Tax Returns — Board of Assessors of Everett — Power 
OF Mayor. 

While two members of the board of three assessors of the city of Everett remain in 
office, they are qualified to act as such board, and the mayor of Everett has no 
power under the city charter to act as an assessor, and consequently has no 
authority to inspect, under St. 1909, c. 490, Pt. I, § 44, so much of the returns 
of taxpayers filed with the Tax Commissioner as shows the details of the per- 
sonal estate, except by order of a court. 

You ask my opinion as to whether the mayor of Everett may to the 
lawfully inspect the returns made to the board of assessors by sioLrT'"'^' 
taxpayers, under the provisions of St. 1909, e. 490, Pt. I, § 44. Fe bruary s. 
You state that the question arises because one of the members 
of the board of assessors of Everett has been appointed and 
has qualified as a deputy to the income tax assessor for the 
Middlesex district. I assume that the member referred to has 
resigned from the board of assessors of Everett, as otherwise 
I do not see how the question would arise. 

Said section 44 provides that the list returned by tax- 
payers and filed with the Tax Commissioner "shall be open to 
the inspection of the assessors, their assistants and clerks and 
to the tax commissioner and his deputy, but so much of the 
lists as shows the details of the personal estate to that of no 
other person except by the order of a court." 

Section 26 of the charter of the city of Everett (St. 1892, 
c. 355) is as follows : — 

The mayor shall be the chief executive officer of the city, and the 
executive powers of the city shall be vested in him and be exercised by 
him either personally or through the several officers and boards in their 
respective departments, under his general supervision and control. 

This section gives the mayor of the city broad powers. It 
vests in him the executive power of the city, to be exercised 
by him either personally or through the several officers and 
boards in their respective departments, under his general 
supervision and control. Read literally, this section would 
seem to give him the power to perform any of the duties 
imposed upon the several officers and boards in their respective 



OPINIONS OF THE ATTORNEY-GENERAL. 

departments at any time, irrespective of the question of 
whether there were such officers or boards qualified to act. 
The section, however, must be interpreted reasonably and 
read in connection with the other provisions of the charter, 
and with consideration to general statutes applicable to the 
duties such officers and boards are appointed to perform. 

Under section 35 of the charter it is the duty of the mayor 
to appoint a board of assessors consisting of three persons. 
The duties of assessors are particularly prescribed by the 
statutes of the Commonwealth. These statutes, together with 
the provisions of section 35, negative the idea that the duties 
of the board of assessors are to be performed by the mayor, 
if ever, when there is a board of assessors in existence, duly 
qualified to act. 

St. 1913, c. 835, § 408, provides that "there shall be three, 
five, seven or nine assessors in each city and town, and as 
nearly one third as may be of the number shall be elected or 
appointed annually." 

The only question that arises, therefore, in my judgment, is 
whether there is a board of assessors duly qualified to act 
when one member of three has resigned. 

This question seems to be answered by the case of Cooke 
V. Inhahitanis of Scituate, 201 Mass. 107, in which it was 
decided by the Supreme Judicial Court that, under a similar 
statute relating to towns, two members of a board of three 
assessors were qualified to act as such board after the third 
member had died. 

Accordingly, I am of the opinion that, upon the facts stated 
by you, the mayor of Everett has no power to act as an as- 
sessor, and consequently has no authority to inspect so much 
of the returns made by taxpayers and filed with the Tax Com- 
missioner as shows the details of the personal estate, except 
by the order of a court. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 



Yacancy in Office of County Commissioner — Effect of 
Death of Person elected before he qualifies. 

Where a person who has been elected county commissioner dies before quaUfying as 
required by R. L., c. 20, § 13, such death does not create a vacancy in the 
board of county commissioners, as the member of the board whose place the 
deceased was to have taken holds over, under the provisions of St. 1913, c. 835, 
§ 391, until his successor is qualified. 

I am in receipt of your letter in which you state that the To the 

u u J. • • u xt, X i? County Corn- 

person who was chosen county commissioner by the voters of missioners for 

Berkshire County at the last annual election died without County. 

having taken the oath of office, the member of the board of Fe bruary 5. 

county commissioners whose place the deceased was to have 

taken being still alive. You also state that there are two 

county commissioners other than the persons above referred to, 

and two associate commissioners, all duly elected and qualified, 

whose terms of office have not yet expired, and my opinion is 

requested as to whether there is a vacancy in the board of 

county commissioners; and if not, of what three persons the 

membership of the board consists. 

St. 1913, c. 835, § 391, provides that county commissioners 
shall hold office for a term of three years, beginning w^ith the 
first Wednesday of January in the year succeeding their re- 
spective elections, "and until their successors are chosen and 
qualified." R. L., c. 20, § 13, provides that "county commis- 
sioners before entering upon their duties shall be sworn, . . ." 

If there had been a failure to elect a county commissioner 
at the last annual election, a special election under the pro- 
visions of St. 1913, c. 835, § 341, would have been necessary. 
This section also provides that upon a vacancy in the office of 
county commissioner a special election shall be had in like 
manner, and that until such election, in the case of a vacancy, 
the remaining county commissioners may appoint some person 
to fill the office until a person is duly elected and qualified. 

R. L., c. 20, § 20, relating to associate commissioners, pro- 
vides that if a commissioner is interested in a question before 
the board, if he is unable to attend or if there is a vacancv in 



10 OPINIONS OF THE ATTORNEY-GENERAL. 

the board, the other member or members shall give notice to 
one or both of the associate commissioners, as the case re- 
quires, who shall then act as a member or members of the 
board. I assume that there is in this case no question raised 
as to the ineligibility of the Commissioner on account of inter- 
est or his inability to attend. 

It is apparent that in this case there was no failure to elect, 
so that it is necessary that a vacancy exist before a special 
election can be held or before an associate commissioner may 
be authorized to act as a member of the board. 

Although no case has been decided in this Commonwealth 
which passes upon the question of whether in the situation 
here described a vacancy exists, the question has frequently 
arisen in other jurisdictions, and it has almost uniformly been 
held that there was no vacancy under provisions of law sub- 
stantially the same as ours. 

In Commomvealth v. Hanky, 9 Penn. St. 513, Hanley was 
elected clerk of court in October, 1845, and duly qualified. 
The Constitution of Pennsylvania provided that such officers 
should "hold their offices for three years, if they shall so long 
behave themselves well, and until their successors shall be 
duly qualified. Vacancies in any of said offices shall be filled 
by appointments to be made by the governor." On the second 
Tuesday of October, 1848, one Brooks w^as duly elected as his 
successor, but died before qualifying. The Governor, assuming 
that Hanley's office became vacant at the expiration of the 
three years, appointed a successor. It w^as held by the court 
that the appointment by the Governor was unauthorized and 
invalidj since there was no vacancy, and that Hanley continued 
to hold a valid title to the office. 

To the same effect are the cases of State v. Metcalfe, 80 Ohio 
St. 244; State v. Hayes, 91 Miss. 755; and Kimberlim v. State, 
130 Ind. 120. In the last case one Tow was duly elected town- 
ship trustee in 1888 and duly qualified. At the April election 
in 1890 Brown and Murray were the opposing candidates for 
the office. On the day of the election, after the polls were 
closed but before the result was announced. Brown died. On 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 11 

the completion of the count it was found that Brown was 
elected. Under the theory that there was a vacancy in the 
office, an election was held in November, 1890, at which Tow 
and Kimberlim were the opposing candidates. Kimberlim re- 
ceived a majority of the votes. It was held by the court in 
this case, which was a proceeding to try the title to the office, 
that Tow nevertheless continued to hold title to it, since the 
Constitution provided that whenever the term of any officer 
was fixed by law "the same shall be construed to mean that 
such officer shall hold his office for such term and until his 
successor shall have been elected and qualified;" that there 
was, therefore, no vacancy to be filled at the November elec- 
tion; and that the election of Kimberlim was invalid. In this 
case the court says, at page 125: — 

The weight of authority is that, where there exists a constitutional pro- 
vision such as we are now considering, a term of office fixed by statute 
runs, not only for the period fixed, but for an additional period between 
the date fixed for its termination and the date at which a successor shall 
be qualified to take office. The period between the expiration of the term 
fixed by statute and the time at which a successor shall be qualified to take 
office is as much a part of the incumbent 's term as the fixed statutory 
period. 

In discussing a similar question the court, in State ex rel. v. 
Wright, 56 Ohio St. 540, speaking of the office of mayor, said : — 

His right to serve after the expiration of the designated period, until the 
qualification of his successor, being conferred by statute at the time of his 
election, is no less a part of his statutory term of office than is the fixed 
period itself; and while he is so serving there can be no vacancy in the 
office in any proper sense of the term, for there is an actual incumbent of 
the office legally entitled to hold the same. 

I am therefore of the opinion that the member of the board 
of county commissioners of your county who was elected in 
November, 1913, still remains a legal member of that board, 
and, accordingly, that there is no vacancy in that office. It 
follows that an associate commissioner would not be authorized 
to fill this office on the theory that a vacancy existed, and that 



12 



OPINIONS OF THE ATTORNEY-GENERAL. 



tlie board of county commissioners of your county now con- 
sists of the member elected in 1913, the member elected in 1914 
and the member elected in 1915. 

I have felt some hesitancy in advising your board upon this 
question, as there is serious doubt as to whether I am author- 
ized by law to do so. Since, however, in the event that your 
board should call a special election, it would be my duty to 
advise the Secretary of the Commonwealth as to his duty to 
prepare ballots therefor, and in view of the importance of the 
question, I have considered it appropriate in this instance to 
advise you upon the question propounded. 



Health, Local Board of — Authority of Mayor of 
Everett to exercise the Powers of. 



To the 

Commissioner 
of Health. 

1917 
February 7. 



While there is in the city of Everett no board of health qualified to act, the mayor 
may, under the charter of that city (St. 1892, c. 355) , exercise such powers of 
the board of health as have been delegated to it by the city, but not such pow- 
ers as have been conferred by law directly upon that board. 

My opinion is requested upon certain questions propounded 
to you by the agent of the board of health of Everett. As all 
these questions are answered by a determination of whether 
there is at present in the city of Everett a board of health duly 
qualified to perform the duties imposed upon boards of health, 
and if not, wdiether the mayor can act in its place, I think it 
sufficient to confine my opinion to such determination. 

R. L., c. 75, § 9, provides that "in each city except Boston 
the board of health shall consist of three persons, one of whom 
shall be a doctor of medicine and no one of whom shall be a 
member of the city council." 

You state in your communication that the mayor of Everett 
has removed two members of the present board of health, leav- 
ing only one member in office. Assuming these removals were 
legal, I am of the opinion that there is now no board of health 
in the city of Everett qualified to act as such. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 13 

The question arises, therefore, as to whether the mayor of 
Everett is authorized to perform the duties of the board of 
health, at least until such time as there is a board of health 
duly qualified to act. 

Section 26 of the charter of the city of Everett (St. 1892, c. 
355) is as follows: — ■ 

The mayor shall be the chief executive officer of the city, and the execu- 
tive powers of the city shall be vested in him and be exercised by him either 
personally or through the several officers and boards in their respective de- 
partments, under his general supervision and control. 

This section, together with other provisions of the charter, 
gives the mayor very broad powers. In my judgment, he has 
the power to exercise all executive powers of the city delegated 
to the board of health, at least where there is no such board 
duly qualified to exercise them. 

A distinction should be made in this connection between 
powers which have been conferred upon the city itself and 
delegated by it to the officers by whom such powers are to be 
exercised, and powers which are conferred by law, not upon 
the city itself but directly upon certain officers. In the latter 
case the powers exercised by such officers are in no sense de- 
rived from the cit3^ 

With this distinction in mind it is clear that the powers given 
to the mayor by the section above quoted include only powers 
of the first class. While it is true that under another section 
of the charter the mayor has the power to appoint, with the 
approval of the board of aldermen, members of the board of 
health, and to remove them at his pleasure, it by no means 
follows that the powers which have been conferred upon this 
board are powers belonging to the city. 

As was said by the court in Johnson v. Somerville, 195 Mass. 
370, at page 377, in speaking of a highway surveyor: — 

The highway survej^or is elected by the inhabitants of the town in 
town meeting, but that does not make him the agent or servant of the 
town. The election of the highway surveyor no more makes him the 
servant of the town than does the appointment of the police commissioner 



14 ■ OPINIONS OF THE ATTORNEY-GENERAL. 

of the city of Boston by the Governor, by and with the consent of the 
Council, make the poHce commissioner the agent or servant of the Gov- 
ernor and Council. The way in which the highway surveyor is made 
highway surveyor, namely, by election in town meeting, is not material. 
When he is made highway surveyor he is an independent public officer, 
whose duties and powers are prescribed by statute. 

To a large extent the powers of local boards of health are 
conferred by general statutes of the Commonwealth, and the 
duties of such boards of health are therein prescribed. When 
acting under such powers and performing such duties, the mem- 
bers of the board of health act as public officers, that is, as 
agents of the State and not of the city. Attorney-General v. 
Stratton, 194 Mass. 51; Hathaivay v. Everett, 205 Mass. 246; 
Haley v. Bosto7i, 191 Mass. 291. 

So far as the board of health of the city of Everett acts as a 
public board, performing duties imposed upon it directly by the 
State, I am of the opinion that it does not exercise any powers 
belonging to the city, and that the mayor has no power to 
perform such duties in its place, whether they are judicial, 
legislative or executive in their nature. In so far, however, as 
the execution of powers belonging to the city itself has been 
delegated by it to the local board of health, I am of the opinion 
that they may be exercised by the mayor, acting under the 
charter, at least where there is existing no board of health 
qualified to act. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 15 

Insurance — Reinsurance of "Full Coverage" Automo- 
bile Policy — Fire Insurance on Automobile wher- 
ever located. 

Each of the particular hazards included in a "full coverage" automobile policy 
may be reinsured in a company authorized to insure against that particular 
hazard, even though such company is not itself authorized to issue a "full 
coverage" automobile policy under St. 1907, c. 576, § 32, cl. 2. 

Insurance against fire upon movable ns\s of the sort specified in St. 1907, c. 576, 
§ 32, cl. 2, may be written either by a fire insurance company or by a marine 
insurance company. If such a policy is written by a fire or fire and marine in- 
surance company it must be in the standard form prescribed by section 60 of 
this statute, so far as that form is applicable, but if such a policy is written by 
a marine insurance company it need not be in the standard form prescribed by 
section 60. 

You request my opinion as to whether, under the provisions To the 
of St. 1907, c. 576, § 20, an insurance company authorized to Commissioner. 
transact in this Commonwealth the kinds of business specified Fe bruary 19. 
in clause 2 of section 32 of this statute, which issues a "full 
coverage" automobile policy, must, in case of reinsurance of 
any of the risks covered by the policj;, reinsure only in a com- 
pany also authorized to do business under clause 2. 

Section 20 provides, in part, as follows: — 

If the company authorized to transact the business of insurance in this 
commonwealth directly or indirectly contracts for or effects any reinsur- 
ance of any risk or part thereof taken by it, it shall make a sworn report 
thereof to the insurance commissioner at the time of filing its annual state- 
ment or at such other time as he may request ; and such reinsurance unless 
effected in companies authorized to transact in this commonwealth the 
class of business reinsured shall not reduce the taxes to be paid by it nor 
the reserve to be charged to it. 

This section must be read in connection with the provision 
of St. 1909, c. 490, Pt. Ill, § 33, permitting a deduction in 
determining the premium tax on such a company of "all sums 
actually paid either to other domestic insurance companies or 
to the agents of foreign companies for reinsurance on risks, the 
premium on which, but for such reinsurance, would be liable to 
taxation." 



16 OPINIONS OF THE ATTORNEY-GENERAL. 

In my opinion, the words of section 20, "the class of business 
reinsured," when read together with the above provision of the 
tax act must be interpreted to refer to the particular subordi- 
nate risk or hazard which is being reinsured, and as merely 
one of the items of the general coverage policy. This language 
was not intended to be used in the broader sense as referring 
to the class of business authorized by clause 2, treating that 
class as an indivisible whole. Thus, in my opinion, when a^ 
marine company reinsures the fire or the theft hazard included 
in a general coverage policy, that action constitutes the rein- 
surance of fire or theft business within the meaning of this pro- 
vision. Consequently, such a company may reinsure the fire 
hazard of such a policy with a company authorized to do busi- 
ness under clause 1 of section 32, and may reinsure the theft 
hazard of such a policy with a company authorized t© do busi- 
ness under clause 11 of that section, and nevertheless be en- 
titled to credit for the premiums paid on such reinsurance under 
the provisions of section 20 of the insurance law or section 33 
of the tax act. 

You also ask my opinion as to whether a policy insuring an 
automobile or other movable personal property, wherever 
located, against fire only comes within the provisions of clause 
1 or clause 2 of section 32 of the insurance statute, and also 
whether it must be issued upon the Massachusetts standard 
form under the provisions of section 60. 

The clauses of section 32 to which you refer are as follows : — 

First, To insure upon the stock or mutual plan against loss or damage to 
property and loss of use and occupancy by fire; explosion, fire ensuing;, 
explosion, no fire ensuing, except explosion of steam boilers and fly wheels; 
lightning, hail, or tempest on land; bombardment; a rising of the waters 
of the ocean or its tributaries, or by any two or more of said causes. 

Second, To insure upon the stock or mutual plan vessels, freights, goods,, 
money, effects, and money lent on bottomry or respondentia, against the 
perils of the sea and other perils usually insured against by marine insur- 
ance, including risks of inland navigation and transportation; also to in- 
sure against loss or damage to and loss of use of motor vehicles, their fit- 
tings and contents, whether such vehicles are being operated or not, and 
wherever the same may be, resulting from accident, collision or any of the 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 

perils usually insured against bj^ marine insurance, including inland 
navigation and transportation. 

Section 60 provides: — 

No fire insurance company shall issue fire insurance policies on property 
in this commonwealth, other than those of the standard form herein set 
forth, except as follows: [The exceptions are not material.] 

In my opinion, a policy of the character to which you refer 
constitutes insurance "against loss or damage to property. . . 
by fire." Accordingly, it may be issued by a company au- 
thorized to do business only under clause 1, namely, by a fire 
insurance company. When so issued it clearly comes within 
the provisions of section 60, and must, accordingly, be issued 
upon the standard form thus required, with, of course, a 
waiver of the provisions of the policy requiring the property 
insured to be located at a specified place. 

As I understand it, the peril of loss by fire has always been 
me of the perils "usually insured against by marine insurance," 
within the meaning of clause 2. Accordingly, a company au- 
thorized to do business only under the provisions of clause 2, 
since it may insure against loss by fire to the limited extent 
thus authorized as a part of a general marine policy, may like- 
wise insure to the same limited extent against loss by fire 
only. It thus may also insure motor vehicles against loss by 
fire only. Such insurance, however, may only be written by 
such companies upon movable risks of the sort specified in 
clause 2. A company authorized to do business only under the 
provisions of clause 2 is obviously a marine insurance company 
and not in any sense a fire insurance company. Therefore, if 
it issues a policy of the limited sort to which I have referred, 
insuring against fire only, there is no requirement that such a 
policy shall be written upon the standard form prescribed by 
section 60. The requirement of that section applies to fire 
insurance companies only. 

Section 34 of the insurance statute contains the following 
provision: — 



17 



18 



OPINIONS OF THE ATTORNEY-GENERAL. 



Any domestic insurance company now or hereafter authorized to trans- 
act the business specified in either the first or second clauses of section 
thirty-two of chapter five hundred and seventy-six of the acts of the j-ear 
nineteen hundred and seven is hereby authorized to transact the kinds of 
business specified in both of said clauses : 'provided, that the capital stock 
of such company is not less than four hundred thousand dollars. 

An insurance company authorized under this provision to 
transact business under either clause 1 or clause 2 is called by 
various provisions of the statutes a fire and marine company. 
It is thus subject to the limitations imposed upon both such 
companies. In my opinion, if such a company issues a policy 
insuring an automobile or other movable personal property, 
wherever located, against fire only, it must issue that policy 
upon the standard form in accordance with the requirements 
of section 60. Such company, being both a fire and a marine 
company, is subject to the limitations imposed by law upon 
both such companies. 



To the Tax 
Commissioner. 

1917 
February 19. 



Taxation — Property devoted to a Public Use. 

A town may not legally assess taxes upon a water district on account of water mains 
extended outside the territorial limits of that district and into the limits of such 
town. 

You request my opinion as to whether the assessors of the 
town of Oxford may legally assess taxes upon the Cherry 
Valley and Rochdale water district on account of water mains 
extended outside the territorial limits of that district and into 
the town of Oxford. 

By St. 1910, c. 381, the inhabitants of this district, a cer- 
tain specified portion of the territory of the town of Leicester, 
were created a municipal corporation for the purpose of sup- 
plying themselves with water, and were given the power to 
raise money by taxation and other similar powers usually 
granted to such corporations. By section 7 of this statute the 
district was authorized to extend its pipes into the town of 
Oxford for a distance not exceeding 500 feet from the boundary 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 19 

lines between the towns of Leicester and Oxford, and by 
St. 1911, e. 152, this distance was increased to 4,000 feet. 

It is well settled that property devoted to a public use is 
exempt from taxation, in the absence of any express provision 
of law authorizing its taxation. Accordingly, it is held that 
property owned by one town for the purposes of a water 
supply and located within the territorial limits of another is 
exempt from taxation. Wayland v. Middlesex County Com- 
missioners, 4 Gray, 500. It is also held that, in the absence 
of any provision of law to the contrary, the property of a 
private water company is exempt from taxation. Milford 
Water Company v. Hopkinton, 192 Mass. 491. It is now pro- 
vided by St. 1909, c. 490, Pt. I, § 11, that the real estate and 
machinery of every private water company shall be subject to 
taxation. By section 8 of this statute it is also provided that 
a city or town owning property in another city or town for the 
purpose of a water supply shall annually pay to the city or 
town in which the property lies "an amount equal to that 
which such place would receive for taxes upon the average of 
the assessed values of such land, without buildings or other 
structures, for the three years last preceding the acquisition 
thereof." 

So far as I am aware, there is no provision of law for the 
taxation of property, real or personal, owned by a water dis- 
trict and located within the limits of another city or town 
from that in which the district is situated. Such a district is 
not a private water company, and therefore section 11 does 
not apply to it. Such a district is not a city or town, and 
thus section 8 does not apply to it. Furthermore, the pay- 
ment provided for by section 8 is based only upon the as- 
sessed values of land located in the other city or town. The 
payment there provided for is based in nowise upon personal 
property. 

The pipes laid by this water district within the limits of the 
town of Oxford are plainly personal property. I find no pro- 
vision of law authorizing the town of Oxford to tax them, and, 
accordingly, I am of opinion that they are not subject to 



20 



OPINIONS OF THE ATTORNEY-GENERAL. 



taxation by that town. In my opinion, it is proper for you to 
advise the assessors of the town of Oxford that they should 
abate any such taxes heretofore assessed which remain uncol- 
lected, and that they should omit to assess such taxes in the 
future. 



To the Joint 
Committee on 
Constitutional 
Amendments. 

1917 «^- 
February 19. 



Constitutional Law — Constitutional Convention — In- 
compatibility OF Offices. 

The position of delegate to the Constitutional Convention provided for by Gen. St. 
1916, c. 98, is a "place under the authority of the commonwealth" which the 
Governor, Lieutenant-Governor and justices of the Supreme Judicial Court 
are precluded from holding by Mass. Const., Pt. II, c. VI, art. II. 

The position of delegate to the Constitutional Convention is not an "office under 
the government of this commonwealth" within the meaning of Article XIII of 
the Amendments to our Constitution, and the holding of the office of justice of 
any court of the Commonwealth, other than the Supreme Judicial Court, is 
not incompatible with the holding by the same person of the position of such 
delegate. 

Members of the General Court, councillors, officers of the Commonwealth, other 
than Governor and Lieutenant-Governor, elected by vote of all the people, and 
senators and representatives from this Commonwealth in the Congress of the 
United States are eligible under our Constitution to hold the position of dele- 
gate to the Constitutional Convention provided for by Gen. St. 1916, c. 98. 

You request my opinion upon the following questions: — 

1, Are any or all of the officers mentioned in House Bill No. 795 now 
ineligible to membership in the Constitutional Convention provided for 
by chapter 98 of the General Acts of the year 1916? 

2. If anj'- or all of said officers are ineligible, is it within the power of the 
Legislature to make such officers ehgible to membership m the convention? 



The officers mentioned in this bill are the members of the 
General Court, the Governor, Lieutenant-Governor, council- 
lors, the justices of the Supreme Judicial and the Superior 
Courts, the justices of all other courts in this Commonwealth, 
any officer of the Commonwealth elected by vote of all the 
people, and senators and representatives from this Common- 
wealth in the Congress of the United States. 

Mass. Const., Pt. II, c. VI, art. II, provides that — 

No governor, lieutenant-governor, or judge of the supreme judicial 
court, shall hold any other office or place, under the authority of this com- 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 21 

monwealth, except such as by this constitution they are admitted to hold, 
saving that the judges of the said court may hold the offices of justices of 
the peace through the state; nor shall they hold any other place or of- 
fice, or receive any pension or salary from any other state or government 
or power whatever. 

If the convention called to revise, alter or amend the Con- 
stitution pursuant to the vote of the people at the last annual 
election, under Gen. St. 1916, c. 98, is authorized by the pro- 
visions of our present Constitution, the position of a delegate 
to the convention is a "place under the authority of the 
commonwealth," and it follows that the Governor, Lieutenant- 
Governor and justices of the Supreme Judicial Court would be 
violating the provisions of the Constitution by sitting in said 
convention. 

It has been asserted by many, and seems to have been the 
opinion of the justices of the Supreme Judicial Court in an 
opinion to the Legislature (reported in 6 Cush. 573), that 
Article IX of the Amendments to the Constitution, providing a 
method for the adoption of specific and particular amendments 
to our Constitution, excluded by implication any authoriza- 
tion to the people to revise or change it by the convention 
method, and this view is not unsupported by other authority. 
Opinion of the Justices, 14 R. I. 649. 

The Preamble to our Constitution recites that — 

The end of the institution, maintenance, and administration of gov- 
ernment, is to secure the existence of the body politic, to protect it, 
and to furnish the individuals who compose it with the power of enjoying 
in safety and tranquillity their natural rights, and the blessings of 
life: and whenever these great objects are not obtained the people have 
a right to alter the government, and to take measures necessary for their 
safety, prosperity, and happiness. 

Article VII of the Bill of Rights of our Constitution is as 
follows : — 

Government is instituted for the common good; for the protection, 
safety, prosperity, and happiness of the people; and not for the profit, 
honor, or private interest of any one man, familj', or class of men : There- 
fore the people alone have an incontestable, unalienable, and indefeasible 



22 OPINIONS OF THE ATTORNEY-GENERAL. 

right to institute government; and to reform, alter, or totally change 
the same, when their protection, safety, prosperity, and happiness re- 
quire it. 

This incontestable, unalienable and indefeasible right, 
which indeed is the essence of a republican form of govern- 
ment, cannot, in my judgment, be taken away except by 
plain and unmistakable language. That the people of one 
generation can deprive the people of a succeeding generation 
of their unalienable right to reform, alter or totally change 
their form of government, except in a restricted manner, when 
their protection, safety, prosperity and happiness require it, is 
repugnant to our theory of government, that the right to 
govern depends upon the consent of the governed. It seems 
to me a much more reasonable if not a necessary construction 
of the Constitution to hold that Article IX of the Amendments 
provides only a manner of amending the Constitution in addi- 
tion to other methods that may be adopted by the people of 
changing their form of government, under the fundamental 
right guaranteed by the Bill of Rights, whenever "their pro- 
tection, safety, prosperity, and happiness" require it. 

This view is strengthened by an examination of the debates 
in the convention of 1S21, which framed this article of amend- 
ment for submission to the people. Mr. Webster, in dis- 
cussing this article at that time, said that he knew of no 
principle that could prevent a majority, even a bare majority, 
of the people from altering the Constitution, and that the 
object of the mode proposed for making amendments in it 
was to prevent the people from being called upon to make 
trivial amendments or any amendments except when a real 
evil existed. Debates in Convention of 1820 (ed. 1853), 407; 
Jameson, Const. Conventions, §§ 571-575. 

Accordingly, I am of the opinion that the convention will 
be held under the authority of the Commonwealth, that the 
position of a delegate to said convention is a place under the 
authority of the Commonwealth, and that therefore the 
Governor, Lieutenant-Governor and justices of the Supreme 
Judicial Court cannot sit therein as delegates without violat- 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 23 

ing the provisions of Mass. Const., Pt. II, c. VI, art. II. It is 
unnecessary, however, to determine whether the position of a 
delegate is a place under the authority of the Commonwealth, 
as it will be noted that the prohibition contained in Mass. 
Const., Pt. II, c. VI, art. II, is not limited to places under the 
authority of the Commonwealth, but includes all places, at 
least of a public nature; and thus I am of the opinion that 
whatever view is adopted as to the nature of the convention, 
the Governor, Lieutenant-Governor and justices of the Su- 
preme Judicial Court, while occupying their respective offices, 
cannot properly sit as delegates therein. 

Your specific question is as to their eligibility. Doubtless 
they are eligible to be candidates, and may hold the position 
of delegate subject to the provision of Gen. St. 1916, c. 98, 
§ 6, that the delegates "shall be the judges of the returns 
and elections of their own members." 

It was held by the Supreme Judicial Court in the case of 
Commonwealth v. Hawkes, 123 Mass. 525, that a person hold- 
ing the office of judge might lawfully hold a seat in the Legis- 
lature, the acceptance of such seat, however, being a resigna- 
tion of his office as judge. 

Accordingly, it would seem that while the Governor, Lieu- 
tenant-Governor and justices of the Supreme Judicial Court 
might lawfully hold a seat in the convention if elected thereto, 
the acceptance of such seat would operate as a resignation of 
their office, or would render them liable to impeachment. In 
arriving at this conclusion I have not overlooked the fact that 
His Honor William Phillips, then Lieutenant-Governor, and 
Hon. Isaac Parker, then chief justice, and Hon. Samuel S. 
Wilde, a justice, of the Supreme Judicial Court, sat as dele- 
gates in the Constitutional Convention of 1820. Their right 
to do so does not appear to have been questioned at that time. 

The only provision in the Constitution that can be con- 
strued as a prohibition to the judges of the Superior Court and 
the other courts of the Commonwealth sitting as delegates in the 
convention is contained in Article VIII of the Amendments^ 
which provides that — ■ 



24 OPINIONS OF THE ATTORNEY-GENERAL. 

Judges of the courts of common pleas shall hold no other office under 
the government of this commonwealth, the office of justice of the peace 
and militia offices excepted. 

There is some question whether the phrase "courts of com- 
mon pleas" refers to the courts which w^ere established at the 
time of the adoption of this amendment under that name, or 
whether it has a much broader meaning, including all courts 
having jurisdiction of common pleas. 

Bouvier defines "common pleas" as — 

The name of a court having jurisdiction generally of civil actions. 

Such pleas or actions are brought by private persons against private 
persons, or by the government when the cause of action is of a civil na- 
ture. In England, whence we derived this phrase, common pleas are so 
called to distinguish them from pleas of the Crown. 

I think it unnecessary to consider this question, as I have 
come to the conclusion, wdth some hesitation, that the posi- 
tion of delegate in the convention is not an office of the Com- 
monwealth, within the meaning of this amendment. It is to 
be observed that the phrase here is "office under the govern- 
ment of this commonwealth," whereas the phrase contained 
in the provision relative to the justices of the Supreme Judicial 
Court is "office or place under the authority of this common- 
wealth." The language used in connection with the justices 
of the Supreme Judicial Court is much more comprehensive 
than that used in relation to the judges of the courts of common 
pleas. 

In some jurisdictions a clear distinction has been made 
between "office" and "place" under the government. Worthy 
V. Barrett, 63 N. C. 199. In that case it was said that a mem- 
ber of the Legislature was not an officer although he held a 
place of trust and profit. On the other hand, in Morrill v. 
Haines, 2 N. H. 24G, it was held that a member of the Legisla- 
ture was an officer of the State. No case has occurred in this 
Commonwealth where this question has been decided. In the 
case of Fitchburg R.R. Co. v. Grand Junction R.R., etc., Co., 1 
Allen, 552, the question was raised, but the court, in arriving 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 25 

at its conclusions, found it unnecessary to determine the point 
and expressly left it open. 

Whatever may be said in relation to a member of the Legis- 
lature, he at least takes part in the execution of one of the 
powers of government, whereas a delegate in the convention 
acts substantially as one of a committee of the people, whose 
power is restricted to making a report to the people. 

The whole purpose of the convention is to take under con- 
sideration the propriety of revising or altering the present Con- 
stitution, and to report back to the people such revision, alter- 
ation or amendment as it may propose. Its powers are similar 
to that of a committee, its work is entirely preliminary, and it 
has no power to do any act which of itself has any final effect. 

It is my view that the word "office," as used in Article 
VIII of the Amendments, refers to a position the incumbent 
of which exercises some power of government, and not to the 
position of a person selected to act in an advisory capacity in 
framing a scheme or change of government to be submitted 
to the people for adoption or rejection. See in this connection 
Attorney-General v. Tillinghast, 203 Mass. 539, 543. 

Accordingly, I am of the opinion that there is nothing in 
our Constitution w^hich renders the office of justice of any court 
of the Commonwealth, other than the Supreme Judicial Court, 
incompatible with the position of delegate to the Constitu- 
tional Convention, or which in any way affects his eligibility to 
such position. 

As to the other officers referred to in your inquiry, the only 
provision of the Constitution which might be said to apply 
thereto is clause 2 of Article II of Chapter VI of Part the Sec- 
ond, which reads as follows: — 

. . . and never more than any two offices, which are to be held by ap- 
pointment of the governor, or the governor and council, or the senate, or 
the house of representatives, or by the election of the people of the state 
at large, or of the people of any county, military offices, and the offices of 
justices of the peace excepted, shall be held by one person. 

This would apply, if at all, only to such delegates as were 
elected at large. Even then I am of the opinion that this 



24 OPINIONS OF THE ATTORNEY-GENERAL. 

Judges of the courts of common pleas shall hold no other office under 
the government of this commonwealth, the office of justice of the peace 
and militia offices excepted. 

There is some question whether the phrase "courts of com- 
mon pleas" refers to the courts which were established at the 
time of the adoption of this amendment under that name, or 
whether it has a much broader meaning, including all courts 
having jurisdiction of common pleas. 

Bouvier defines "common pleas" as — 

The name of a court having jurisdiction generally of civil actions. 

Such pleas or actions are brought by private persons against private 
persons, or by the government when the cause of action is of a civil na- 
ture. In England, whence we derived this phrase, common pleas are so 
called to distinguish them from pleas of the Crown. 

I think it unnecessary to consider this question, as I have 
come to the conclusion, with some hesitation, that the posi- 
tion of delegate in the convention is not an office of the Com- 
monwealth, within the meaning of this amendment. It is to 
be observed that the phrase here is "office under the govern- 
ment of this commonwealth," whereas the phrase contained 
in the provision relative to the justices of the Supreme Judicial 
Court is " office or place under the authority of this common- 
wealth." The language used in connection with the justices 
of the Supreme Judicial Court is much more comprehensive 
than that used in relation to the judges of the courts of common 
pleas. 

In some jurisdictions a clear distinction has been made 
between "office" and "place" under the government. Worthy 
V. Barrett, 63 N. C. 199. In that case it was said that a mem- 
ber of the Legislature was not an officer although he held a 
place of trust and profit. On the other hand, in Morrill v. 
Haines, 2 N. H. 24G, it was held that a member of the Legisla- 
ture w^as an officer of the State. No case has occurred in this 
Commonwealth where this question has been decided. In the 
case of Fitchburg R.R. Co. v. Grand Junction R.R., etc., Co., 1 
Allen, 552, the question was raised, but the court, in arriving 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 25 

at its conclusions, found it unnecessary to determine the point 
and expressly left it open. 

Whatever may be said in relation to a member of the Legis- 
lature, he at least takes part in the execution of one of the 
powers of government, whereas a delegate in the convention 
acts substantially as one of a committee of the people, whose 
power is restricted to making a report to the people. 

The whole purpose of the convention is to take under con- 
sideration the propriety of revising or altering the present Con- 
stitution, and to report back to the people such revision, alter- 
ation or amendment as it may propose. Its powers are similar 
to that of a committee, its work is entirely preliminary, and it 
has no power to do any act which of itself has any final effect. 

It is my view that the word "office," as used in Article 
VIII of the Amendments, refers to a position the incumbent 
of which exercises some power of government, and not to the 
position of a person selected to act in an advisory capacity in 
framing a scheme or change of government to be submitted 
to the people for adoption or rejection. See in this connection 
Attorney-General v. Tillinghast, 203 Mass. 539, 543. 

Accordingly, I am of the opinion that there is nothing in 
our Constitution which renders the office of justice of any court 
of the Commonwealth, other than the Supreme Judicial Court, 
incompatible with the position of delegate to the Constitu- 
tional Convention, or which in any way affects his eligibility to 
such position. 

As to the other officers referred to in your inquiry, the only 
provision of the Constitution which might be said to apply 
thereto is clause 2 of Article II of Chapter VI of Part the Sec- 
ond, which reads as follows: — 

. . . and never more than any two offices, which are to be held by ap- 
pointment of the governor, or the governor and council, or the senate, or 
the house of representatives, or by the election of the people of the state 
at large, or of the people of any county, military offices, and the offices of 
justices of the peace excepted, shall be held by one person. 

This would apply, if at all, only to such delegates as were 
elected at large. Even then I am of the opinion that this 



26 OPINIONS OF THE ATTORNEY-GENERAL. 

clause would have no application, since what I have before 
said in relation to an "office" as distinguished from a "place'^ 
applies with equal force to this provision of the Constitution. 

The only statutory provision that in any way applies to 
the questions propounded by you is R. L., c. 18, § 11, which 
prohibits any person from receiving more than one salary at 
the same time from the treasury of the Commonwealth. 

I am informed that House Bill No. 26, which provides that 
this section shall not apply to the position of delegate to the 
convention, has been favorably reported by your committee. 
There is, of course, no constitutional objection to the enact- 
ment of this bill, and if enacted into law I am of the opinion 
that there is nothing in the Constitution or laws of the Com- 
monwealth which in any way interferes with such officers sitting 
as delegates in the Constitutional Convention. 

As to your second question, since the offices of Governor, 
Lieutenant-Governor and justice of the Supreme Judicial Court 
are incompatible with the position of delegate in the convention,, 
by reason of the provisions of the Constitution itself, it is ob- 
vious that the Legislature has no power to remove the incom- 
patibility. The other officers mentioned in your bill are, in my 
opinion, already eligible to seats as delegates in the convention, 
at least if House Bill No. 26 is enacted into law, so there seems- 
to be no occasion for the enactment into law of any of the pro- 
visions of House Bill No. 795. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 27 

Constitutional Law — Office of District Attorney — 
Power of General Court to provide for Investigation 

OF. 

Under Mass. Const., Pt. II, c. I, § I, art. IV, the General Court has the power to 
prescribe and determine the methods and basis for the entry of nolle prosequi 
and filing of criminal cases by a district attorney, and for that purpose it may 
provide for the appointment of a commission to investigate as to what has been 
done in the past in this regard in a particular district, this power being in no 
way limited by Article XIX of the Amendments to the Constitution. 

You request my opinion as to the right of the Legislature to the joint 
to enact legislation substantially in accordance with Senate Bill thTjudidMy"" 
No. 136, entitled "A Resolve providing for an investigation of March 8. 
the office of the district attorney of Suffolk County." I 
assume the office referred to is that of district attorney for the 
Suffolk district, as there is no office of district attorney of 
Suffolk County in this Commonwealth. 

The resolve provides for the appointment by the Governor 
of a commission of three persons for the purpose of investigat- 
ing the office of the district attorney of Suffolk County, "to 
determine the methods and the basis for the nol-prossing and 
filing" of criminal cases. The commission is given power to 
summon Avitnesses, and is required to report to the General 
Court. 

By Mass. Const., Pt. II, c. I, § I, art. IV, the General 
Court is given — 

Full power and authority ... to make, ordain, and establish, all man- 
ner 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; and to 
name and settle annually, or provide by fixed laws for the naming and set- 
tling, all civil officers within the said commonwealth, the election and 
constitution of whom are not hereafter in this form of government other- 
wise provided for; and to set forth the several duties, powers, and limits, 
of the several civil and military officers of this commonwealth, and the 
forms of such oaths or affirmations as shall be respectively administered 



28 OPINIONS OF THE ATTORNEY-GENERAL. 

unto them for the execution of their several offices and places, so as the 
same be not repugnant or contrary to this constitution. . . . 

Under this authority the Legislature has undoubted power 
to change or regulate the powers and duties of the office in 
question, or even to abolish it, urJess limited in this respect 
by some other provision of the Constitution. The only other 
provision of the Constitution touching this particular question 
is Article XIX of the Amendments, which provides as follows: — 

The legislature shall prescribe, by general law, for the election of sher- 
iffs, registers of probate, and clerks of the courts, by the people of the 
several counties, and that district-attorneys shall be chosen by the people 
of the several districts, for such term of office as the legislature shall pre- 
scribe. 

In pursuance of this amendment, which was ratified by the 
people in 1855, St. 1856, c. 173, was enacted, providing for 
the election and the term of office of the officers specified in 
the article of amendment. 

The effect of this article was considered by the justices of 
the Supreme Judicial Court in an opinion given to the House 
of Representatives under date of April 20, 1875, reported in 
117 Mass. at page 603, in which the question of whether the 
office of register of probate and insolvency could lawfully be 
abolished by the Legislature was answered in the affirmative. 
Referring to the amendment in question, the justices say: — 

The Constitution does not secure the tenure of office of registers of pro- 
bate, nor confer any right in the office beyond the control of the Legisla- 
ture, but merely ordains how such officers shall be elected. It is within 
the constitutional authority of the Legislature, by general law, to change 
the term of office, or to abolish the office itself, and transfer the powers 
and duties thereof to another. . . . 

The original statute of 1856, chapter 173 (now R. L., c. 156, 
§ 4), provides for the removal of these officers by a majority 
of the justices of the Supreme Judicial Court. This provision 
for removal apparently was assumed to be constitutional in 
the case of Bullock v. Aldrich, 11 Gray, 206, and a removal 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 29 

from the office of district attorney for the Suffolk district was 
made thereunder in the case of Commonwealth v. Cooky, 1 
Allen, 358. 

It is my opinion, therefore, that the power of the Legisla- 
ture over the office in question is not impaired or diminished 
by the nineteenth article of amendment, except as to the 
manner in which it shall be filled. It follows that it is within 
the proper sphere of the Legislature to prescribe and deter- 
mine, if it deems it desirable, the methods and basis for the 
entry of nolle prosequi and filing of criminal cases by a district 
attorney. 

It may be that the Legislature believes that it can ob- 
tain assistance in determining the wisdom of the passage of 
laws to regulate or restrict the disposition of criminal cases by 
filing or the entry of 7ioUe prosequi by ascertaining the nature, 
number and cause of the disposition of such cases in this 
manner in the past. Nor does the fact that the investigation 
is limited to one district alone affect the constitutionality of 
the resolve. Whether the wisdom of limiting the power long 
exercised by prosecuting attorneys can as well be determined 
by the investigation of the disposition of cases in only one 
district as by an investigation of this subject throughout the 
Commonwealth, is a matter for the Legislature itself to deter- 
mine, i 

It is my opinion that the Legislature is not restricted in 
obtaining this information to committees made up of its own 
members, but that it may provide for the appointment of such 
a commission as is proposed for the purpose of investigating 
this matter and reporting to the Legislature. 

As to how far the commission may go in requiring the 
district attorney, or his assistants, to disclose confidential 
communications or other matter which may be privileged, it is 
unnecessary for the purpose of your question to determine. 

Accordingly, the answer to your question must be in the 
affirmative. 



30 OPINIONS OF THE ATTORNEY-GENERAL. 



Registrars of Voters — Power of Assistant City Clerk 
TO ACT AS Member of in Place of City Clerk. 

Where a city has not adopted the provisions of St. 1913, c. 835, § 24, the city coun- 
cil is not authorized, under R. L., c. 26, § 16, to provide by ordinance that the 
assistant city clerk shall perform the duties of registrar of voters in place of the 
city clerk when the clerk is unable personally to perform such duties. 

Secretary. You liavc requested my opinion upon the following qiies- 

1917 
March 21. tlOn: 

The city clerk of the city of Gloucester is a member of the board of reg- 
istrars, under the provisions of St. 1913, c. 835, § 25. The city is about to 
adopt or has adopted an ordinance which will unpose upon the assistant 
city clerk the performance of all duties pertaining to the office of city 
clerk when the city clerk is absent. 

Would this, in your opinion, give the assistant city clerk the power to 
register voters in the absence of the city clerk? 

St. 1913, c. 835, §§ 24 to 33, inclusive, relate to registrars of 
voters, their appointment, terms of office, etc. In cities which 
have adopted the provisions of section 24 the board of regis- 
trars shall consist of four persons appointed by the mayor and 
aldermen, whose terms of office shall be for four years. In 
such cities the city clerk ceases to be a member of the board 
of registrars. Under section 25 cities which have not adopted 
the provisions of this section shall have an appointive board 
of three members, who shall act with the city clerk, and the 
terms of office of the appointive members shall be for three 
years. By both these sections provision is made for equal 
political representation. 

The following sections provide for the filling of vacancies and 
appointment of assistant registrars, and define their duties : — 

Section 29. If a member of the board of registrars shall be disabled 
by illness or other cause from performing the duties of his office, or shall, 
at the time of any meeting of said board, be absent from the city or town, 
the mayor or selectmen may, upon the request in writmg of a majority of 
the remaining members of the board, appoint in writing some person to 
fill such temporary vacancy, who shall be of the same political party as the 
member whose position he is appointed to fill. Such temporary registrar 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 31 

shall perform the duties and be subject to the requirements and penalties 
provided by law for a registrar of voters. 

Section 32. A city council, except in the city of Boston, may author- 
ize the registrars to appoint assistant registrars for the term of one j^ear, 
beginning with the first day of October, unless sooner removed by the reg- 
istrars, and they shall, as nearly as may be, equally represent the different 
political parties. 

Section 33. The registrars in a city authorizing the appointment of 
assistant registrars may cause the duties devolvmg upon a single registrar 
to be performed by one or two assistant registrars, and they may designate 
two assistant registrars, so far as practicable of different political parties, 
for the sessions required by law to be held outside of their principal of- 
fice. The registrars shall make suitable regulations for the government 
of the assistant registrars, whose doings shall be subject to their revision 
and acceptance. Assistant registrars shall be subject to the same obliga- 
tions and penalties as registrars. Registrars may^ remove an assistant 
registrar, and may fill any vacancy in the number of assistant registrars 
for the remainder of the term. 

R. L., c. 26, § 16, provides for the appointment of assistant 
•city clerks, and is as follows : — 

A city may by ordinance establish the office of assistant city clerk, and 
prescribe the manner of his appointment and his powers and duties. His 
certificate or attestation shall have the same effect as that of the city clerk. 

If I am correct in the assumption that the city of Gloucester 
has not adopted the provisions of section 24, above quoted, then 
the city clerk is a member of the board of registrars of voters. 
The statute makes him a member of the board. No special 
provision is made as to who shall act in his absence, and it 
seems clear that the provisions of section 29 apply to a tem- 
porary vacancy caused by his disability to serve. 

The question is, therefore. Do the provisions of R. L., c. 
26, § 16, authorize the city council by ordinance to provide that 
the assistant clerk shall act in the place of the clerk when 
he is unable to perform the duties of registrar? In my opinion 
they do not. The provisions of said section 16 were originally 
passed in 1869, and, as then passed, provided that the assistant 



32 OPINIONS OF THE ATTORNEY-GENERAL. 

city clerk "shall be appointed in such manner and for such 
duties and powers now belonging to the office of city clerk as 
such ordinance shall prescribe and determine." The office of 
registrar of voters was not established until the passage of St. 
1881, c. 210. Prior to that time the powers now exercised by 
registrars of voters were exercised in cities by the mayor and 
aldermen and in towns by the selectmen. It seems plain that 
at the time of the original passage of the statute authorizing 
the establishment of the office of assistant city clerk the duties 
and powers now exercised by the board of registrars were in 
no sense duties and powers belonging to the office of city clerk. 

It is my view that the statutes establishing boards of regis- 
trars created a distinct office from that of city clerk, and im- 
posed upon the city clerk, in certain instances, the duty of 
exercising the powers of said office, and in no way enlarged 
the authority given a city in prescribing the powers and duties 
of an assistant city clerk under the provisions of R. L., c. 26, 
§ 16. Furthermore, the statutes provide methods for the filling 
of vacancies and the appointment of assistant registrars. (§§ 29, 
32 and 33.) Ordinarily, when a specific method of appoint- 
ment to office is provided by statute it excludes other methods 
of appointment, unless they are specifically provided for by 
statute. 

It should also be noted that the statute provides for equal 
political representation, as near as may be, on the board of 
registrars of voters. As it is possible for the clerk and assist- 
ant clerk to be of different political parties, an ordinance of the 
city which provides that the assistant clerk shall act as regis- 
trar of voters in the absence of the clerk might nullify the 
provision for equal political representation. 

Accordingly, I am of the opinion that your question is to be 
answered in the negative. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 33 



Cities and Towns — Hospitals for Consumptives — State 
Subsidy — County Tuberculosis Hospitals. 

Since the passage of Gen. St. 1916, c. 286, the city of Everett, being of less than 
50,000 population, is no longer required to make hospital provision for con- 
sumptive persons, but until the completion of the county hospitals provided 
for by that statute, that city is entitled to receive from the Commonwealth $5 
per week for each patient who is unable, or whose kindred are unable, to pay 
for his support, and who is maintained by that city under the conditions speci- 
fied in St. 1912, c. 637, in the Cambridge Tuberculosis Hospital. 

You request my opinion upon the question of whether the Tothe 
city of Everett was acting within its rights in closing the hos- Hospftllsfor 

1 1 • 1 • 1 1 1 p IP- 1 1 • Consumptives. 

pital which it had heretofore erected for its tuberculosis pa- i9i7 

\ , . ^ March 28. 

tients, as bearing upon the further question of whether the 

city of Everett is entitled to a subsidy from the Common- 
wealth for its consumptive patients cared for at the Cambridge 
Tuberculosis Hospital under an arrangement with that city. 

R. L., c. 75, § 35, as amended by St. 1906, c. 365, and by 
St. 1911, c. 613, provides that each city and town shall estab- 
lish and constantly maintain within its limits one or more 
isolation hospitals for the reception of persons having certain 
diseases, including tuberculosis. 

St. 1911, c. 597, provided that every city or town which 
establishes and maintains a tuberculosis hospital shall be en- 
titled to receive from the Commonwealth a subsidy of $5 per 
week for each patient who is unable, or whose kindred are 
unable, to pay for his support. 

St. 1912, c. 151, exempted from the obligation to establish 
and maintain tuberculosis hospitals such cities and towns as 
make an arrangement satisfactory to the State Department of 
Health with a neighboring city or town for the care of persons 
having such disease. 

By St. 1912, c. 637, the right to the State subsidy was ex- 
tended to cities and towns which placed their patients suffer- 
ing from tuberculosis in a municipal or incorporated tuber- 
culosis hospital in this Commonwealth, or in a building or 
ward set apart by such hospital for patients suffering from 
this disease. This act has been amended in other respects by 



34 OPINIONS OF THE ATTORNEY-GENERAL. 

Gen. St. 1916, cc. 57 and 197, but these later amendments 
have no bearing upon the present question. 

Until the enactment of Gen. St. 1916, c. 286, the city of 
Everett was bound by law to make hospital provision for its 
tuberculosis patients, either by maintaining a hospital of its 
own for that purpose or by making an arrangement satis- 
factory to the State Department of Health with a neighboring 
city or town for their care. This act, however, providing for 
the establishment of county tuberculosis hospitals, expressly 
repeals so much of R. L., c. 75, § 35, and the amendments 
thereof, as required cities and towns having less than 50,000 
population to make hospital provision for tuberculosis patients. 
Since the city of Everett has a population of less than 50,000, 
it is obvious that it is no longer under any obligation to make 
hospital provision for its consumptive patients, and, accord- 
ingly, the answer to your question must be in the affirmative. 

The question of whether the city of Everett is entitled to 
receive a subsidy from the Commonwealth for its patients 
maintained in the Cambridge Tuberculosis Hospital under con- 
tract with that city depends upon whether said chapter 286 
had the effect of repealing prior laws in relation to such sub- 
sidy. I am informed that no county tuberculosis hospital has 
as yet been erected in Middlesex County under the provisions 
of this act. Section 4 of this chapter provides that cities 
having more than 50,000 inhabitants, and also cities and towns 
having less than 50,000 inhabitants but already possessing and 
continuing to furnish adequate tuberculosis hospital provision, 
shall be exempt from the provisions of the act, and shall not 
be required to pay any part of the county tax which is assessed 
in order to comply with its provisions. 

If the city of Everett, having already established a tuber- 
culosis hospital, had continued to maintain it, it is clear that 
no question could be raised but that the city would be en- 
titled to receive the subsidy provided for by the statutes of 
1911 and 1912. It is also clear that after the completion of 
the county hospitals provided for by this act the city of Everett 
will not be entitled to receive any subsidy, except under the 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 35 

provisions of Gen, St. 1916, c. 286, § 12, for its patients which 
are supported in the county hospital. The difficulty is whether 
the city of Everett, being released by this later act from its 
obligation to make any provision for tuberculosis patients other 
than in the county hospitals provided for therein, is entitled 
to receive from the State a subsidy for such patients main- 
tained by it in the manner described. 

The act of 1916 contains no express repeal of the laws then 
existing relating to State subsidies. It does, however, contain 
a provision for the payment of subsidies under certain con- 
ditions to cities and towns for the support of their patients in 
hospitals provided for under that act, and, in so far as this 
provision is inconsistent with former acts, they are, under the 
general rule of statutory construction, thereby repealed. This 
subsidy is of necessity not available until the completion of 
the hospitals contemplated by the act, and I am of opinion 
that it was not the intention of the Legislature to repeal the 
former laws relating to subsidies to cities and towns coming 
within the act until the time therein fixed for the completion 
of said hospitals, or their actual completion before that time. 

Accordingly, I am of the opinion that the city of Everett 
is entitled. to a subsidy from the Commonwealth for the tuber- 
culosis patients maintained by it in the Cambridge Tuber- 
culosis Hospital under the conditions specified in St. 1912, c. 
637, as amended, provided this arrangement between the city 
of Everett and the city of Cambridge is satisfactory to the 
State Department of Health. 



36 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Board 
of Registration 
in Pharmacy. 

1917 
March 28. 



Intoxicating Liquors — Sale to Minor — Sixth-class Li- 
censes — Certificates of Fitness. 

The sale of intoxicating liquor upon a physician's prescription to a minor by a drug- 
gist operating under a sixth-class license would be a violation of the conditions 
of such license. Such a sale by a druggist operating under a certificate of fit- 
ness, as provided by St. 1913, c. 413, would subject him to the penalties pre- 
scribed by R. L., c. 100, § 62, and would constitute sufficient cause for the 
revocation of the certificate of fitness by the Board of Registration in Phar- 
macy. 

You request my opinion as to whether intoxicating hquor 
or alcohol may be sold on a physician's prescription to a minor 
by a druggist operating under a sixth-class license, or by a 
druggist operating under a certificate of fitness issued under 
the provisions of St. 1913, c. 413. 

By R. L., c. 100, § 17, par. 4, it is made a condition of every 
license — 

That Hquor shall not be sold or delivered on the licensed premises to a 
person who is known to be a drunkard, to an intoxicated person, or to a 
person who is known to have been intoxicated within the six months last 
precedmg, or to a minor. 



These provisions apply alike to all classes of licenses, and 
therefore a druggist operating under a sixth-class license can- 
not sell intoxicating liquor to a minor upon a physician's pre- 
scription without violating the conditions of his license. 

As to a druggist operating under a certificate of fitness 
issued under the provisions of St. 1913, c. 413, there appears 
to be no law which prohibits his making such sale to a minor. 
It is to be noted, however, that a druggist who makes such 
sale will subject himself to liability under the provisions of 
R. L., c. 100, § 62, while a druggist operating under a sixth- 
class license who makes such sale is not subject to the pro- 
visions of this section. I am of the opinion, however, that the 
making of such sale by a druggist operating under a certificate 
of fitness would be sufficient cause for the revocation of his 
certificate of fitness by your Board, under the provisions of 
St. 1913, c. 413, § 2. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 37 



Credit Unions, Powers of — Security required for Loans. 

Credit unions incorporated under Gen. St. 1915, c. 268, may loan money to its mem- 
bers upon mortgages of real estate generally, and the sufficiency of the property 
mortgaged is left entirely to the discretion of the credit committee, under the 
pro\asions of section 17 of this act, except as to loans secured by mortgages 
upon farm lands, which are restricted by section 18 of this statute to 50 per 
cent of the value of the property pledged. 

A credit union may not loan money to a person not a member of that union. 

You have requested my opinion as to whether credit unions to the 
incorporated or doing business under the authority of Gen. St. mt^sioner™' 
1915, c. 268, are authorized to loan money upon mortgages of April 3 . 
real estate other than farm lands, and if so, whether there is 
any limitation upon the amount of such loans. 

Gen. St. 1915, c. 268, contains the following pertinent pro- 
visions : — 

Section 2. Seven or more persons, resident in this commonwealth, 
who have associated themselves by an agreement in writing with the in- 
tention of forming a corporation for the purpose of accumulating and in- 
vesting the savings of its members and making loans to members for 
provident purposes, may . . . become a corporation . . . 

Section 5. A credit union may receive the savings of its members in 
payment for shares or on deposit; may lend to its members at reasonable 
rates, or invest, as hereinafter provided, the funds so accumulated; and 
may undertake such other activities relating to the purpose of the associa- 
tion, as its by-laws may authorize, any provisions in section one of chapter 
one hundred and fourteen of the Revised Laws notwithstanding. 



Section 8. All property of a credit union, except real estate, and all 
capital stock in a credit imion shall be exempt from state and local taxa- 
tion, except legacy and succession taxes. 



Section 11. The capital, deposits and surplus funds of a credit union 
shall be invested in loans to members with the approval of the credit com- 
mittee as provided in section seventeen of this act, and any capital, de- 
posits or surplus funds in excess of the amount for which loans shall be 
approved by the credit committee may be deposited in savings banks or 
trust companies incorporated under the laws of this commonwealth, or in 
national banks located therein, or may be invested in the bonds of any 



38 OPINIONS OF THE ATTORNEY-GENERAL. 

other credit union or any farmland bank incorporated under the laws of 
this commonwealth, or in any securities which are at the time of their pur- 
chase legal investments for savings banks in this commonwealth, . . . 

Section 17. . . .All applications for loans shall be made in writ- 
ing and shall state the purpose for which the loan is desired and the secu- 
rity offered. 

Section 18. Loans upon the security of first mortgages upon farm 
lands shall in no case exceed in amount fifty per cent of the value of the 
property pledged as security, and shall be for the followmg purposes 
only: . . . 

This statute presents the rather unusual situation of a cor- 
poration as to which there is no express authorization to hold 
either real or personal property. However, it seems to be the 
common law that a corporation has a right to take and hold 
real property reasonably necessary and convenient for the pur- 
poses authorized, except so far as expressly prohibited. 10 Cyc. 
1122; 7 Am. & Eng. Encyc. of Law, 714; see also Old Colony 
R.R. Corp. V. Evam, 6 Gray, 25, 38. 

The purposes of a credit union, as disclosed by this statute, 
necessarily require the possession of power to take and hold 
property, and there is a direct implication that this power in- 
cludes real estate, found in the provisions of section 8 above 
quoted. 

The primary purpose of these corporations is stated to be 
that of "accumulating and investing the savings of its mem- 
bers and making loans to members for provident purposes." 

Whenever a corporation has power to loan money or enter into any 
other contract by which another becomes or may become indebted to it, 
and there are no express or implied charter or statutorj^ restrictions, it al- 
ways has, as an mcident thereto, the same power as an individual to take 
anj^ of the ordinary securities. And it may take a mortgage or deed of 
trust on real property, though not authorized to purchase or deal in land. 
(7 Am. & Eng. Encyc. of Law, p. 801; 10 Cj^c. 1127.) 

The present act contains an express implication of the power 
to take security, since it is provided in section 17 that all ap- 
plications for loans shall state "the security offered." 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 39 

Section 18 of the act prescribes in detail the limitations placed 
upon the security obtained by first mortgages upon farm lands, 
thereby recognizing the right in the corporation to take such 
mortgages. 

A further indication pointing in the same direction is found 
in the provision of section 5 exempting such corporations from 
the provisions of R. L., c. 114, § 1, which section is a prohibi- 
tion upon any persons or corporations, with certain exceptions 
therein stated, against transacting "the business of accumu- 
lating the savings of its members and loaning to them such 
accumulations in the manner of a co-operative bank." 

A careful examination of the entire act discloses no express 
prohibition against taking a mortgage of real estate as security 
for a loan to a member of a credit union other than the limita- 
tions as to loans upon farm lands, found in section 18. 

Accordingly, I am of the opinion that a credit union is au- 
thorized to take as security for a loan to a member a mortgage 
of real estate generally. 

Your question is broad enough to include a query as to 
whether a loan could be made to a person other than a member 
and secured by mortgage of real estate. 

I am of the opinion that such an investment is not author- 
ized by the terms of this statute. It is true that section 11 
authorizes surplus funds to be invested "in any securities which 
are at the time of their purchase legal investments for savings 
banks." It is, of course, common knowledge that first mort- 
gages of a certain class are legal investments for savings banks. 
"Securities" is a word of broad meaning, and, in its widest inter- 
pretation, is almost synonymous with " investments." The defini- 
tion applied to it by the Supreme Judicial Court of Massachusetts 
in the case of Boston Railroad Holding Co. v. Commonwealth, 215 
Mass. 493, 497, is perhaps broad enough to include mortgages. 
The word, however, is frequently employed in a more limited 
sense as referring to investments of the kind ordinarily bought 
and sold in the market. In the present statute this word is 
restricted to this limited sense by the use of the word "pur- 
chase," as shown in the quotation above. It is only securities 



40 OPINIONS OF THE ATTORNEY-GENERAL. 

which are "at the time of their purchase" legal investments for 
savings banks which are here dealt with. A loan secured by a 
mortgage is not a purchase of a mortgage. 

The present statute in several places indicates an intention 
that loans are to be made only to members. In section 5 it is 
provided that the credit union "may lend to its members at 
reasonable rates, or invest, as hereinafter provided, the funds so 
accumulated." Section 6 authorizes the making of by-laws 
prescribing "the fines, if any, which shall be charged for failure 
to meet obligations to the corporation punctually." Such a 
by-law, of course, would not be binding upon persons not mem- 
bers, and therefore an implication arises that loans are to be 
made only to members. 

St. 1909, c. 419, which was the first act authorizing the in- 
corporation of credit unions, and which, although repealed by 
the present act, is, in fundamental provisions, largely continued 
by it, contains the following : — 

Section 15. The capital, deposits and surplus funds of the corpora- 
tion shall be either lent to the members for such purposes and upon such 
security and terms as the credit committee shall approve, or deposited 
to the credit of the corporation in savings banks or trust companies in- 
corporated under the laws of this commonwealth, or in national banks lo- 
cated therein. 

In my opinion, it was not intended by the enactment of Gen. 
St., 1915, c. 268, to enlarge the class of persons to whom loans 
might be made. 

Accordingly, I am of the opinion that such a corporation is 
not authorized to make loans to persons who are not members 
of it. 

There is to be found in the act no restriction as to the ratio 
of a loan to the value of the security offered other than the 
limitation of section 18 with reference to mortgages upon farm 
lands, and I find no language seeming to imply such limitation. 

Therefore I am of the opinion that in making a loan secured 
by a mortgage upon real estate other than farm lands the suf- 
ficiency of the security offered is left entirely to the discretion 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 41 



of the credit committee, under the provisions of section 17 of 
the act, which is as follows:- — 

The credit committee shall hold meetings, of which due notice shall be 
given to its members, for the purpose of considering applications for loans, 
and no loan shall be made unless all members of the committee who are 
present when the application is considered, and at least two thirds of all 
the members of the committee, approve the loan and are satisfied that it 
promises to benefit the borrower. All applications for loans shall be made 
in writing and shall state the purpose for which the loan is desired and the 
security offered. 



Insurance — Status of Alien Enemy — Situation of Ger- 
man Insurance Companies in Event of Declaration 
OF War between this Country and Germany. 

The Insurance Commissioner would be justified, under St. 1907, c. 576, § 7, in re- 
voking the certificate of authority granted to a German insurance company, 
its officers and agents, in the event of a declaration of war between this country 
and Germany. 

An alien enemy cannot enforce the payment of debts in the courts of this country 
during the continuance of the war, but his liabilities may be enforced against 
him, provided assets can be found here to meet such liabilities. 

It seems that payments to an agent of a German insurance company resident in this 
country may legally be made by a policyholder in the absence of an act of Con- 
gress prohibiting such payment, and that such policyholder may properly re- 
ceive payment of claims from such resident agents. 

You have requested my opinion as to whether, in the event Totheinsur- 

„ , , . 1 /-, ^ r^ . ance Commis- 

oi war between this country and Germany, the German m- sioner. 
surance companies now admitted under the law to transact ^prii 3 . 
business in this Commonwealth, through United States 
branches, so called, can continue to make new contracts of in- 
surance herein, renew their present contracts, collect premiums, 
pay losses and carry out the terms of their policies now out- 
standing. 

It is not possible to say that the law governing such a 
situation is definitely settled. In time of war the ultimate 
limit to the disabilities which may be placed upon citizens of 
the enemy country is a matter of power rather than of law. 
Conceivably, it would be possible for this country to confiscate 



42 OPINIONS OF THE ATTORNEY-GENERAL. 

the property of German companies situated in this country, 
and thereby render them incapable of carrying out either old 
or new contracts. 

There would seem to be grave doubt as to the legality of 
any contract made or renewed by a company incorporated 
under the laws of a nation with which our own country might 
be at war. 

One of the most complete discussions of this subject is found 
in the Massachusetts case of Kershaw v. Kelsey, 100 Mass. 
561. In that opinion the following language is used by Mr. 
Justice Gray: — 

The result is, that the law of nations, as judicially declared, prohibits 
all intercourse between citizens of the two belligerents which is inconsist- 
ent with the state of war between their countries; and that this includes 
any act of voluntary submission to the enemy, or recei\ing his protection; 
as well any act or contract which tends to increase his resources; and 
every kind of trading or commercial dealing or intercourse, whether by 
transmission of money or goods, or orders for the delivery of either, be- 
tween the two countries, directly or indirectly, or through the intervention 
of third persons or partnerships, or by contracts in any form looking to 
or involving such transmission, or by insurances upon trade with or by 
the enemy. . . . 

. . . When a creditor, although a subject to the enemy, remains in 
the country of the debtor, or has a known agent there authorized to re- 
ceive the amount of the debt, throughout the war, pajonent there to such 
creditor or his agent can in no respect be construed into a violation of the 
duties imposed by a state of war upon the debtor; it is not made to an 
enemy, in contemplation of international or municipal law : and it is no 
objection that the agent may possibly remit the money to his principal in 
the enemy's country; if he should do so, the offence would be imputable 
to him, and not to the person paying him the money, (pp. 572-573.) 

The decision in this case has not always met with complete 
approval. In Robinson v. Premium Oil Pipe Line, Ltd. (1915, 
2 Chancery, p. 124), it is said: — 

The learned Judge Gray, in the case of Kershaw v. Kelsey, which is re- 
ported m 100 Mass. page 561 (97 Am. Dec. 124, 1 Am. Rep. 142), states 
the law in our opinion correctly when he says, "The law of nations as 
judicially declared prohibits all intercourse between citizens of two bel- 
hgerents which is inconsistent with the state of war between their coun- 



I 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 43 

tries," but we respectfully disagree with him when he holds that nothing 
comes within that principle except commercial intercourse. 

As pointed out in the Massachusetts case, there may be 
found many declarations in other cases to the effect that 
practically all contracts between citizens of belligerent nations 
are prohibited. For example, in Scholefield v. Eichelberger, 
7 Pet. 586, 593, it is said by Johnson, J. : — 

The doctrine is not at this day to be questioned, that during a state of 
hostility the citizens of the hostile States are incapable of contracting with 
each other. For near twenty years this has been acknowledged as the 
settled doctrine of this court. 



The purpose of acquiring insurance, of course, is to obtain a 
certainty of payment, in case of loss, as complete as possible. 
It is most undesirable for citizens of this State to be given 
policies as to which any reasonable excuse for avoidance can 
be imagined. 

St. 1907, c. 576, § 7, provides that the Insurance Commis- 
sioner may revoke the certificate of authority granted to a 
foreign insurance company, its officers or agents, if he is of 
opinion that "its condition is such as to render its proceedings 
hazardous to the public or to its policyholders." 

In view of the uncertainty as to payment of the policies 
issued by such a company, I am of opinion that you would be 
justified, in the event of a declaration of war, in revoking the 
authority of such companies. 

As to payments made to such companies, it seems to be 
established that it is illegal to make payments to citizens of a 
hostile nation where, in order so to do, the money is trans- 
mitted to that country. On the other hand, apart from some 
enactment by Congress, it appears by the quotation from the 
Massachusetts court, set forth above, that payment to an 
agent of such companies resident here would not be pro- 
hibited. 40 Cyc. 321-323. 

The United States Supreme Court has held, contrary to the 
opinions of certain State courts, that the authority of an 



44 OPINIONS OF THE ATTORNEY-GENERAL. 

agent of a life insurance company resident in hostile territory 
is terminated by war, although by agreement of the company 
and the agent it might continue. Insurance Co. v. Davis, 
95 U. S. 425. Whether or not the present contracts of agency 
of the German companies contain such provisions I am not 
informed, and of course I cannot predict whether or not, if the 
agents are willing to continue to represent those companies, 
their acts will be ratified. 

It is stated that the law of Germany differs from that of 
England and the United States, and that under that law trade 
with the enemy is permitted to continue after the outbreak of 
war unless special prohibitive orders are issued. S. Oppen- 
heim: Treatise on International Law (2d ed.), p. 136. If this 
is a correct statement of the German law, it might well be 
held that the authorization of agents of German companies 
continued after a declaration of war until terminated by cor- 
porate action or official order. 

It is to be remembered, however, that during war the citizens 
of one of the enemy countries have no standing in the courts 
of the other, and can maintain no action to enforce payment 
of debts so long as hostilities continue. Kershaw v. Kelsey, 
supra. 

On the other hand, liabilities of German companies may 
be enforced against them by the courts of this country, pro- 
vided assets can be found here to meet such liabilities. See 
Watts, Watts & Co. v. Unione Austriaca Di Navigazione, 224 
Fed. Rep., 188, 192. If the resident agents of such companies 
were willing to pay such claims without suit, I see no objec- 
tion to an American citizen receiving the same. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 45 



Taxation, Exemption from — Farming Utensils — Uten- 
sils USED in Connection with making Maple Sugar. 

Utensils used by the owner or occupant of a farm in connection with the making of 
maple syrup or sugar are "farming utensils" within the meaning of St. 1909, 
c. 490, Ft. I, § 5, el. 11, providing for their exemption from taxation, only when 
the sap is gathered and made into maple sugar or syrup merely as an incidental 
part of the operation of such farm. 

You request my opinion as to whether utensils used in con- To the Tax 
nection with the making of maple sugar are "farming utensils" ^ i9.i7 , 
within the meaning of St. 1909, c. 490, Pt. I, § 5, cl. 11, ex- ^-^^°' 
empting from taxation "the wearing apparel and farming 
utensils of every person; his household furniture not exceeding 
one thousand dollars in value; and the necessary tools of a 
mechanic not exceeding three hundred dollars in value." 

The foregoing provision is an exemption from a general tax, 
and therefore, in accordance with the usual rule, is to be con- 
strued strictly against the taxpayer. In my opinion, the word 
"farming," as used in this statute, includes merel}' the pursuit 
of agriculture, and, accordingly, refers to the tillage of the soil. 
It cannot be extended to include the gathering or harvesting of 
natural forest products. Thus, the gathering of sap from maple 
trees and its manufacture into syrup or sugar do not of them- 
selves constitute farming within the meaning of this provision. 
It is, however, an incident of the operation of a farm for the 
owner or occupant to gather such products as are grown upon 
his farm and to market them. This has come to be an ordinary 
incident of the operation of a farm. Accordingly, in my opinion, 
when the sap of maple trees is gathered and made into syrup 
or sugar by the owner or occupant of a farm merely as an inci- 
dental part of the operation of his farm, the utensils used by 
him may be said to be "farming utensils" within the meaning 
of the above quoted provision, and thus exempt from taxation. 
Where such operations are not carried on as an incident of con- 
ducting a farm, in my opinion utensils thus used do not come 
within this exemption. In reaching this conclusion I in no way 
attempt to review or reconsider the classification of farming 
utensils as set forth in the opinion of one of my predecessors. 
Ill Op. Atty.-Gen. 66. 



46 OPINIONS OF THE ATTORNEY-GENERAL. 



Labor Laws — Application to Employer performing Work 
UNDER Contract with the Federal Government in 
Time of War. 

An employer in this Commonwealth who is furnishing war supplies under contract 
with the Federal government is subject to the provisions of St. 1913, c. 758, 
except when the performance of such contract, independent of other work, re- 
quires the employment of labor in a manner contrary to the provisions of that 
chapter. 

Jf°Labo?an'd ^^^ request my opinion on the following question: — 

1917 ' Shall a contractor, furnishing war materials under contract or require- 

— — ■ ment of the United States government, be exempt from the requirements 

relating to the hours of labor of women and children contamed in chapter 
758 of the Acts of 1913, or shall the State Board of Labor and Industries, 
in each case called to its attention, determine what is "extraordinary 
emergency" or "extraordinary public requirement" under the law to 
which we have referred? 

It is to be noted at the outset that your question does not 
involve a situation where the LTnited States has required the 
employer to do the work. In such a situation I would un- 
hesitatingly advise you that the laws of this Commonwealth 
would not apply. When a state of war exists no law of the 
Commonwealth can interfere or control the necessities or ex- 
igencies of the Federal government in prosecuting the war. 
Your question involves only voluntary contracts made with the 
LTnited States for war supplies. 

St. 1913, c. 758, provides, in part, that — 

Every employer engaged in furnishing public service or in any other 
kind of business in respect to which the state board of labor and industries 
shall find that public necessity or convenience requires the emplojanent 
of children under the age of eighteen or women by shifts during different 
periods or parts of the da>, shall post in a conspicuous place in every 
room in which such persons are employed a printed notice stating sepa- 
rately the hours of employment for each shift or tour of duty and the 
amount of time allowed for meals. 

It further provides that — 

In cases of extraordinary emergency as defined by section one of chap- 
ter four hundred and ninety-four of the acts of the j^ear nmeteen hundred 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 47 

and eleven or extraordinary public requirement, the pro\asions of this act 
shall not apply to employers engaged in public service or in other kinds of 
business in which shifts may be required as hereinbefore stated; but in 
such cases no employment in excess of the hours authorized under the pro- 
visions of this act shall be considered as legalized until a written report of 
the day and hour of its occurrence and its duration is sent to the state 
board of labor and industries. 

Cases of extraordinary emergency, as defined by St. 1911, c. 
494, § 1, as amended by Gen. St. 1916, e. 240, are the following: 
danger to property, life, public safety or public health. 

I think it plain that employers engaged in furnishing war 
materials to the United States government, under contracts, 
are employers engaged in public service, within the meaning of 
the act. It follows that in cases of extraordinary emergency 
or extraordinary public requirement the provisions of St. 1913, 
c. 758, do not apply to such employers. 

It is to be presumed that the United States government, at 
the time of making such contracts, has knowledge of the laws 
of the Commonwealth and the capacity of the employers' fac- 
tories, and that it will not enter into contracts with employers 
in this Commonwealth requiring the operation of their factories 
contrary to the provisions of our laws unless an extraordinary 
■emergency or public requirement necessitates it. It follows 
that if, in order to fulfill the contracts, it is necessary to operate 
the factories outside the provisions of said chapter 758, an ex- 
traordinary emergency or public requirement exists. This 
emergency or requirement exists, however, only when the neces- 
sity of so operating the factory is required to fulfill the gov- 
ernment's contracts. In other words, it does not arise unless 
the work for the government, independent of other work, re- 
quires the operation of the factory in a manner contrary to the 
provisions of said chapter. 

Accordingly, each case brought to your attention will depend 
upon its own facts, and in the first instance, applying the views 
above indicated, it is for your Board to determine whether or 
not an extraordinary emergency or public requirement exists. 

Instances may arise where the operation of the factory in a 



48 OPINIONS OF THE ATTORNEY-GENERAL. 

manner outside of the provisions of chapter 758 is requested by 
officials of the United States government, although the work of 
the factory is not devoted exclusively to the manufacture of 
war materials. In such instances I am of the opinion that your 
Board should assume that an extraordinary emergency or ex- 
traordinary public requirement exists. 



Assessors of Town, Vacancy in Office of — How Filled. 

The office of assessor of taxes of a town is not one which can be filled under the pro- 
visions of St. 1913, c. 835, § 429. 

Commi^foner ^ou rcqucst my opiuiou as to whether a vacancy in the of- 
Apr/us. fice of assessor can be filled under the provisions of St. 1913, 

c. 835, § 429. 

If at all, the vacancy could be filled only under the provisions 
of the second clause of the section, as the office of assessor is 
expressly excepted in the first clause. I am of the opinion that 
in view of the reference in the first clause of the section to the 
office of assessor as a town office, which but for the exception 
contained therein would be a town office, a vacancy in which 
would be filled by the selectmen by appointment, it was not 
the intention of the Legislature to include an assessor as a 
member of "a board" referred to in the second clause, and, 
therefore, the section has no application to a vacancy occur- 
ring in the office of assessor. I am fortified in this view by the 
fact that assessors are seldom referred to as a board in the Re- 
vised Laws and other statutes subsequent thereto. 

It is also to be observed that where the statute provides that 
three assessors shall be elected, two assessors may act in the 
event of the death of one or in the event of the refusal of one 
to qualify. See Cook v. Scituate, 201 Mass. 107; George v. 
School District in Mendon, 6 Met. 497, 511. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 49 



Motor Vehicles, Registration of — Operator's License — 
Status of Automobiles owned by Federal or State 
Government and used for Military Purposes. 

The laws of this Commonwealth do not require the registration of motor vehicles 
owned by the United States and used in the military service, or of motor vehi- 
cles owned by the Commonwealth or by its militia or home guard when such 
organizations are called out for active duty by the Commander-in-Chief, nor 
are the operators of such motor vehicles required to be licensed while operating 
them for military purposes. 

You have requested my opinion upon the question of ^ay^lmmb- 
whether automobiles owned by the Federal government, the ^'^gjy 
militia of this Commonwealth or the Home Guard authorized ^!1_ ' 
by Gen. St. 1917, c. 148, must be registered before being 
operated on the highways, and the operators thereof licensed, 
in accordance with St. 1909, c. 534, and acts in amendment 
thereof. 

Under date of May 8, 1908, in an opinion rendered to your 
Commission by the Hon. Dana Malone, then Attorney-General, 
it was held that motor vehicles owned by the United States 
government were exempt from registration in this Common- 
wealth under the statutes relating to the use and operation of 
motor vehicles, on the ground that a State cannot tax or sub- 
ject to conditions instrumentalities of the Federal government 
used in carrying out its constitutional functions. .1 fortiori it 
must be held that in time of war motor vehicles owned by the 
United States are exempt from registration under our statutes 
while being used in military service, and the operators of such 
automobiles, while on active duty, are not required to be 
licensed. 

Somewhat different considerations apply as regards automo- 
biles owned by the Commonwealth or its military forces. In 
this case there is no constitutional objection to requiring such 
vehicles to be registered and the operators thereof licensed 
under our statutes. The question is one of interpretation, to 
determine whether or not it was the intention of the Legisla- 
ture to include automobiles of this class. It is a well-settled 
rule of statutory construction that a general statute does not 



50 OPINIONS OF THE ATTORNEY-GENERAL. 

apply to the sovereign in the absence of language in the act 
showing a contrary intention. In this connection see Teasdale 
V. Newell, etc., Constnictinn Co., 192 Mass. 440. 

Accordingly, I am of the opinion that automobiles owned by 
the Commonwealth, the militia or the Home Guard provided 
for by Gen. St. 1917, c. 148, when called out for active duty 
by the Governor as Commander-in-Chief, are not required to 
be registered before being operated upon the highway, nor the 
operators thereof to be licensed while such vehicles are being 
used for military purposes. 

I suggest the advisability of your Commission communicat- 
ing with the Governor and the United States military authori- 
ties, to the end that some distinguishing sign may be placed 
on such cars while in active service, so as to obviate the con- 
fusion and difficulties which would otherwise arise. 



May; 



Fire Prevention Commissioner — Control over Cities 
AND Towns in Metropolitan District. 

The Fire Prevention Commissioner is empowered by St. 1914, e. 795, to make regu- 
lations governing the storage, use or other disposition of dynamite or other 
explosives by cities and towns within the metropolitan district. 

PreventTi^^ You havc rcqucstcd my opinion as to whether St. 1914, 

Commissioner. ^ ^^r^^ gives you coutrol of thc keeping, storage, use, handling 
and other disposition of dynamite and other explosives by 
cities and towns within the metropolitan fire prevention district. 
Under section 3 of that chapter all existing powers, in what- 
ever officers vested, other than courts, "to license persons or 
premises, or to grant permits for or to inspect or regulate or 
restrain the keeping, storage, use, manufacture, sale, handling, 
transportation or other disposition of gunpowder, dynamite 
... or any explosive or inflammable fluids or compounds, 
. . . are hereby transferred to and vested in the commissioner." 
St. 1904, c. 370, § 2, as amended by St. 1905, c. 280, § 1, 
provides as follows : — 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 51 

The detective and fire inspection department of the district poUce may- 
make regulations, except as hereinbefore provided, for the keeping, stor- 
age, use, manufacture, sale, handling, transportation or other disposition 
of gunpowder, dynamite, crude petroleum or any of its products, or ex- 
plosive or inflammable fluids or compounds, tablets, torpedoes or any 
explosives of a like nature, or any other explosives, except fireworks and 
fire crackers, and may prescribe the materials and construction of build- 
ings to be used for any of the said purposes. 

There is no intimation in these statutes of any exception in 
favor of cities and towns, and, accordingly, I am of the opinion 
that your powers in this respect extend to cities and towns as 
well as to individuals. 



Sale of Real Estate for Payment of Taxes — Requisites 
OF — Where assessed to Heirs of Deceased Person. 

It seems that a tax collector, in advertising for sale for payment of taxes real estate 
assessed to the heirs of a deceased person, under St. 1909, c. 490, Pt. II, § 39, 
should insert in the notice of the time and place of the sale the names of all heirs 
or devisees shown by the records of the probate court. 

You request my opinion as to whether, under St. 1909, c. to the Tax 
490, Pt. II, § 39, a tax collector, in advertising for sale real j^^'^®'°°®'"- 

estate assessed to the heirs of a deceased person, is required to ' 

give the names of those heirs as disclosed by the records of the 
Probate Court. The section in question is as follows: — 

The collector shall give notice of the time and place of sale of land for 
pajTTient of taxes by publication thereof. Such notice so published shall 
contain a substantially accurate description of the several rights, lots, or 
divisions of the land to be sold, the amount of the tax assessed on each, 
and the names of all owners known to the collector. 

In the case of Conners v. Lowell, 209 Mass. Ill, 118, the 
Supreme Judicial Court, in discussing the validity of a num- 
ber of tax sales made by the collector of the city of Lowell, 
dealt with a somewhat similar question in the following 
manner: — 

Certain lands were properly assessed to the "Heirs of George T. Wood- 
ward" and to the "Heirs of Irene E. Richardson," under R. L., c. 12, § 21 



52 OPINIONS OF THE ATTORNEY-GENERAL. 

(now St. 1909, c. 490, Pt. I, § 21). In these instances the records of the 
Probate Court for the county in which Lowell is located showed on the 1st 
of May of the year in which the taxes were assessed who the heirs of 
Woodward and Richardson severally were, and that one or more of the 
heirs of each resided in Lowell. The recitals in the deeds of this class were 
that demand was made upon "the heirs" of deceased. The collector was 
required to serve a demand for the pajanent of the tax upon every resident 
assessed, or, in case of heirs of a deceased person, upon one of them, and 
to state in his deed "the name of the person on whom the demand . . . 
was made." R. L., c. 13, §§ 14, 43 (Now St. 1909, c. 490, Pt. II, §§ 14, 44). 
To say that a demand has been made upon the heirs of an intestate is not 
giving the name of the person upon whom the demand was made. The 
two sections cited impose upon the collector the duty of finding a resident 
heir, if there is one, making the demand upon him, and then naming him 
in the deed. To name a person is not the same as to describe him. The 
name of a person is the distinctive characterization in words by which he 
is known and distinguished from others. Such a designating appellation 
was not given by the words "heirs of" a person. Tax deeds lacking it 
are invalid. Reed v. Crapo, 127 Mass. 39. Assessors are charged with 
notice of what may be found upon the probate records in determining 
whether to make an assessment to the heirs or devisees of one deceased. 
Tobin V. Gillespie, 152 Mass. 219. There is no hardship in holding the 
tax collector to the same investigation, if necessary, in ascertaining the 
name of an heir. 

If assessors are charged with notice of what may be found 
upon the probate records in determining whether an assess- 
ment is to be made to the heirs or devisees of a deceased per- 
son, and a tax collector is charged with the same notice in 
determining the name of an heir for the purpose of making a 
demand, it seems to me probable that the court would hold 
that a tax collector is also charged with notice of what may be 
found upon the probate records in determining the names of 
all owners known to him, for the purpose of complying with 
section 39. In any event, in view of the necessity for a strict 
compliance by a tax collector with all the requirements of law 
in order that a tax sale may be valid, I must advise you that 
the safe course for the collector to take i;^ to insert in the no- 
tice of the time and place of the sale the names of all heirs or 
devisees shown bv the records of the Probate Court. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 53 



Trust Companies — Reserve — Status of Government 
Bonds. 

A trust company holding, as part of its reserve, bonds of the United States or of this 
Commonwealth complies with the provisions of St. 1908, c. 520, § 9, if the 
amount of money held by it is at all times equal to at least 5 per cent of the 
amount of all its time and demand deposits, and provided the amount of such 
bonds is sufficient to bring the total cash and bonds up to two-fifths of the total 
reserve required. 

You have requested my opinion as to whether, under the to the Bank 
provisions of St. 1908, c. 520, § 9, a trust company, part of whose *^°^™i^^i°^^'"- 

reserve is made up of United States bonds, is required to have ' ' 

cash equal to two-fifths of the required reserve, or only 5 per 
cent of the aggregate amount of all its time and demand de- 
posits. 

The section referred to is as follows: — 

Not less than two fifths of such reserve shall consist either of lawful 
money of the United States, gold certificates, silver certificates or notes 
and bills issued by any lawfully organized national banking association, 
and the remainder of such reserve may consist of balances, payable on de- 
mand, due from any trust company in the city of Boston authorized to 
act as reserve agent as hereinafter provided, or from any national banking 
association doing business either in this commonwealth or in the cities of 
New York, Philadelphia, Chicago, or Albany; but a portion of such re- 
serve not exceeding one fifth may consist of bonds of the United States 
or of this commonwealth computed at their fair market value, which are 
the absolute property and in the possession of such corporation : provided, 
that the aggregate amount of lawful money of the United States, gold cer- 
tificates, silver certificates, and notes and bills issued by any lawfully 
organized national banking association held by such corporation shall at 
all times be equal to at least five per cent of the aggregate amount of 
all its time and demand deposits, exclusive of deposits in its savings 
department. 

While the statute is by no means clear in its provisions in 
this regard, it appears that the section authorizes a portion of 
"such reserve," meaning thereby the total reserve provided in 
section 8, to consist of bonds of the United States or of this 
Commonwealth, with the proviso immediately following that 
the aggregate amount of lawful money held by the company 



54 OPINIONS OF THE ATTORNEY-GENERAL. 

shall be equal to 5 per cent of the aggregate deposits, exclusive 
of deposits in its savings department. 

It is to be observed that the deposits to be considered in de- 
termining this 5 per cent will in general be a larger amount than 
those upon which the total reserve of 15 per cent is normally 
based, since that reserve is determined by excluding the amount 
of time deposits represented by certificates or agreements in 
writing upon which thirty days are still to run. 

In view of the ready marketability and generally stable value 
of the bonds specified, it would seem that the Legislature might 
well have considered that such bonds to a limited extent could 
safely be substituted for cash. Although, in view of the dif- 
ference in the class of deposits upon which the two-fifths of the 
reserve dealt with in the first part of the section and the 5 per 
cent mentioned in the latter part are to be figured, it is con- 
ceivable that the 5 per cent might in some cases exceed the 
two-fifths, such a condition would be most unlikely. Accord- 
ingly, it is difiicult to see what purpose could have been in- 
tended by the Legislature in providing for the 5 per cent 
mentioned except to fix absolutely the amount of cash required 
as a minimum in cases where the company holds government 
bonds as a part of its reserve. 

I am of the opinion, therefore, that a trust company holding, 
as a part of its reserve, bonds of the United States or of this 
Commonwealth complies with the provisions of this section if 
the aggregate amount of lawful money is at all times equal to 
at least 5 per cent of the aggregate amount of all its time and 
demand deposits, provided the amount .of such bonds is suf- 
ficient to bring the total cash and bonds up to two-fifths of the 
total reserve required. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 55 



Constitutional Law — Effect of Unconstitutionality of 
Part of Statute upon Remaining Parts. 

A statute which exempts agreements between farmers relative to the sale of their 
crops from the operation of a general act, prohibiting combinations in restraint 
of trade, is unconstitutional. 

If such exemption was contained in a statute independent of the general act, its un- 
constitutionality would not affect the validity of the general act. 

You request my opinion upon the following questions : — to the Joint 

Committee of 

1. Whether the committee may recommend a division of House Bill No. Con^ference. 
1805, entitled "An Act to prohibit the control of prices of commodities in May^. 
common use," into two bills, the first to contain all the provisions of the 
present bill, and the second to contain an exemption of agreements be- 
tween farmers or other persons engaged in agricultural or horticultural 
pursuits relative to the sale of the products of their own farms. 

2. Wliether, if this be done and both enactments passed as separate 
bills, they would be constitutional. 

Your first request presents a question of parliamentary law 
which is to be determined by the rules and precedents of the 
General Court, and is one upon which I feel I should express 
no opinion. 

In answer to your second inquiry, I beg to advise you that, 
in my opinion, the bill which exempts from the operation of 
the general act, prohibiting certain combinations in restraint of 
trade and monopolies, agreements between farmers or other 
persons engaged in agricultural or like pursuits relative to the 
sale of products of their own lands, under the decision of 
Connolly v. Union Sewer Pipe Co., 184 U. S. 540, would be un- 
constitutional, as in violation of the Fourteenth Amendment to 
the Constitution of the United States. 

The precise question presented by your order is as to what 
effect the unconstitutionality of this exemption would have 
upon the validity of the main bill. It was held in the Con- 
nolly case, above cited, that where this exemption constituted 
a part of the principal bill the entire bill was invalid. This is 
on the ground that the court could not say that the Legisla- 
ture would have passed the bill if the exemption had not been 
included. The rule is stated in Commonwealth v. Petranich, 



56 OPINIONS OF THE ATTORNEY-GENERAL. 

183 Mass. 217, 220, that "it is an established principle that 
where a statutory provision is unconstitutional, if it is in its 
nature separable from the other parts of the statute, so that 
they may well stand independently of it, and if there is no 
such connection between the valid and the invalid parts that 
the Legislature would not be expected to enact the valid part 
without the other, the statute will be held good, except in that 
part which is in conflict with the Constitution." 

Where an exemption from the operation of a general statute 
is enacted subsequently to and independently of the main 
statute, the two bills would quite clearly seem to be separable, 
and the intention of the Legislature to have the main bill take 
effect, even though the exemption were invalid, would be suf- 
ficiently indicated. See ex j^arte Pfirrman, 134 Cal. 143, where 
it was held that an unconstitutional special act amending a 
general act which was passed earlier on the same day did not 
affect the validity of the otherwise valid general act. 

Accordingly, I am of the opinion that if the exemption re- 
ferred to is incorporated into a separate bill and passed sub- 
sequently to the enactment of the main provisions of House 
Bill No. 1805, the unconstitutionality of the exemption would 
not affect the validity of the principal bill. 



Constitutional Law — Equal Protection of the Laws — 
Due Process of Law — Licensing of Milk Con- 
tractors. 

A bill prohibiting the buying of milk or cream within the Commonwealth from pro- 
ducers, for the purpose of shipping it to any other citj' or town for sale or manu- 
facture, unless such business is transacted regularly at an office or station within 
the State, and unless the vendee is licensed by the State Board of Agriculture 
and furnishes security conditioned upon the prompt payment by him for milk 
or cream purchased, would be unconstitutional if enacted into law, as it would 
violate the Fourteenth Amendment to the Constitution of the United States. 

of°Re''rasent- ^y opiuion is rcqucstcd upon the constitutionality of House 
°-%ll Bill No. 14, entitled "An act to require the licensing of milk 

?!!2L!.' contractors by the State Board of Agriculture and to regulate 

payment by them to milk producers." 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 57 

The bill in substance provides that no milk or cream shall 
be bought in the State from producers, for the purpose of 
shipping the same to any other city or town for sale or manu- 
facture, unless such business be transacted regularly at an office 
or station within the State, and unless the vendee is licensed by 
the secretary of the State Board of Agriculture. The bill fur- 
ther provides that before issuing a license the secretary may 
require the applicant to furnish security, by bond or otherwise, 
conditioned upon the prompt payment by him for the milk or 
cream purchased, provided that the secretary may exempt from 
the requirement of furnishing a bond an applicant who satisfies 
the secretary of his financial responsibility, reliability and good 
intent, or who makes a sworn statement that he intends to pay 
his patrons at regular intervals of not more than two weeks for 
milk or cream furnished to him. All licenses are made subject 
to revocation by the secretary of the State Board of Agriculture 
for failure on the part of the licensee to pay his bills for milk 
and cream, in which case no new license may be issued to him 
until he shall satisfy the secretary of his good intent and ability 
to pay in the future, and all payments due the producers for 
milk or cream prior to the cancelling of the license are made in 
full. 

The obvious purpose of the proposed act is to insure regular 
payments to producers for milk and cream purchased from 
them for the purpose of resale or manufacture. 

It is unnecessary, for the purposes of your queston, to deter- 
mine whether legislation of the general character contemplated 
by the bill could constitutionally be enacted if restricted in its 
operation to vital necessaries, for the reason that, assuming this 
could be done, there are objections to the bill which, in my 
opinion, are fatal to its constitutionality. If a bill of this char- 
acter can constitutionally be enacted, it must be upon the 
ground that it tends to promote the public health or welfare 
by insuring an adequate production and supply of such a vital 
necessity. All legislation to promote the public health or welfare 
must be reasonable and fairly adapted to effect that result. 

Ordinarily, a bill which limits the right of a person to engage 



58 OPINIONS OF THE ATTORNEY-GENERAL. 

in a lawful business must be uniform, and apply equally to all 
persons engaging in such business. Such legislation is subject 
to the provisions of the Fourteenth Amendment to the Consti- 
tution of the United States, which prohibits a State from deny- 
ing to any person within its jurisdiction the equal protection of 
the laws. No arbitrary distinctions or discriminations can be 
made by the Legislature in enacting such laws, at least between 
persons within the general scope of the act. All classifications 
must be based upon some sound reason. As was said by the 
court in CommonweaUh v. Hana, 195 Mass. 262, 266, in discuss- 
ing the constitutionality of an act requiring hawkers and pedlers 
to be licensed, but exempting residents of a city or town who 
paid taxes there on their stock in trade and who were qualified 
to vote there ■ — 

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. Under the Fourteenth Amendment, 
all persons are entitled to the equal protection of the laws. . . . These 
cases and others show that a discrimination, founded on the residence of 
the applicant for a license or the amount of tax paid by him, cannot be 
sustained under the Constitution. 

This bill applies only to persons, firms, associations or cor- 
porations that buy milk or cream within the State from pro- 
ducers, for the purpose of shipping the same to any other city 
or town for sale or manufacture. It does not apply to persons 
who buy milk or cream for the purpose of selling or manu- 
facturing it in the same city or town. Neither does it apply to 
a person who buys milk or cream for such purpose in a city or 
town other than that in which he sells or manufactures it, un- 
less the milk or cream be "shipped" to the latter place. The 
ordinary meaning of the word "ship" is to deliver to a common 
carrier for transportation. Thus, a person in these circum- 
stances who transports the milk or cream himself or by an 
agent other than a common carrier, to another city or town for 
the purpose of sale or manufacture, would be exempt from the 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 59' 

requirements of this bill, while another person in the same 
situation who delivers his milk for transportation to a common 
carrier is required to obtain a license and to furnish security by 
bond or otherwise. I am unable to discern any sound ground 
for this distinction, since there appears to be no reason why a 
person who ships milk or cream, for the purpose of sale or 
manufacture, into a town other than that in w^hich it was pur- 
chased is not as likely to pay his milk bills to the producers as 
a person who buys from producers in the same town in which 
he sells or manufactures it, or a person who himself transports 
milk or cream into the town or city in which it is sold or 
manufactured. 

The bill would permit a person whose place of business is in 
Boston to purchase milk of producers in the various cities and 
towns and to resell it in the same community to persons who 
ship the milk to other cities or towns for the purpose of sale 
or manufacture there, without either of these persons being 
subject to the provisions of this act. 

Indeed, it is somewhat difficult to see any sound reason why 
the general public is not as much interested in securing to the 
producers payment for milk and cream bought from them by a 
person, firm, association or corporation, when it is bought for 
its own consumption or other use, as well as when bought for 
the purpose of sale or manufacture. 

Furthermore, the bill applies not only to milk but also to 
cream, excluding all other products of milk. If a distinction 
can be made at all in regard to necessaries of life, in a bill 
which is not designed for purposes of inspection or insuring 
the wholesome condition of their handling or transportation, 
but solely intended for insuring an adequate supply by secur- 
ing payment to the producers, it necessarily must be because 
there is a greater necessity for the supply of the one than of 
the others. Cream, so far as I am aware, is a no greater 
necessity of life than other products of milk, such as butter 
or cheese. Under the operation of this bill a person buying 
cream from a producer is compelled to be licensed, furnish a 
bond and regularly to maintain an office or station in the 



60 OPINIONS OF THE ATTORNEY-GENERAL. 

place in which he purchases the cream, while another, buying 
butter or cheese under the same circumstances, is under no 
such obligation. I am unable to see any sound ground for this 
distinction. 

It js to be observed, as bearing upon the reasonableness of 
this provision, that one farmer engaged in the production of 
cream is given certain security by law, while his neighbor 
engaged in selling other products of milk is not given this 
security. 

The bill makes no distinction between persons buying milk 
and cream for cash and those buying milk or cream on credit. 
It is manifestly unreasonable to require persons purchasing 
products paid for in cash at the time of the purchase to 
furnish security for such payment. 

The bill is, in my opinion, further objectionable in that it 
requires not only the securing of a license and the furnishing 
of a bond by a person, firm, association or corporation that 
buys milk or cream for the purposes named in the bill, but 
in addition requires that such business be transacted regularly 
at an office or station within the State. If this latter require- 
ment stood alone it would be doubtful whether it should be 
construed as requiring a person buying milk or cream to 
maintain an office or station at which the business of buying 
such milk or cream should be transacted regularly at every 
place where the milk or cream was purchased, or whether it 
required a person engaging in such business to maintain only 
one office or station within the State where this business is 
transacted regularly. 

Section 1 of the bill, however, contains this further provision 
in regard to the issuance of a license : — 

The secretary shall thereupon issue to such applicant, on payment of 
five dollars, a license entitling the appHcant to conduct the business of 
buying milk and cream from producers for the purpose aforesaid at an 
office or station at the place named in the application. 

This plainly indicates that the former construction must be 
adopted; that is, that all persons buying milk or cream within 
the State for the piu-poses mentioned in the bill must main- 



I 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 61 

tain an office or station, and regularly transact business at 
every place where milk or cream is so purchased. 

This additional requirement is, in my opinion, unreasonable 
and burdensome. It would prevent, in times of emergency or 
drought, persons who ordinarily buy their milk at certain 
places in the State from buying milk at any other places, 
unless the business of b.uying milk at such other places be 
regularly transacted. It would operate to restrain trade by 
tending to eliminate free competition and to divide the milk- 
producing territory, and cannot, in my opinion, reasonably be 
justified as a proper exercise by the Legislature of its police 
power in the interests of the general welfare. 

Again, section 3 of the bill provides that — 

The secretary of the state board of agriculture may exempt from the 
furnishing of a bond, any person, firm, corporation, partnership or associa- 
tion applying for license as a milk contractor, who satisfies said secretary 
of his financial responsibiUty, reliability and good intent. 

I doubt very much whether any law applicable to a partic- 
ular business, which exempts from its operation all those who 
satisfy an administrative officer of their financial responsibility, 
reliability and good intent, can be sustained on the theory 
that those who satisfy such officer of these facts are as likely 
to pay their bills and to comply with the law without furnish- 
ing security as those who actually do furnish security, partic- 
ularly when the statute leaves the determination of such 
exemption to the practicall}^ uncontrolled discretion of the 
administrative officer. As is well stated in Cooley's Constitu- 
tional Limitations, at page 559: — 

Those who make the laws "are to govern by promulgated, established 
laws, not to be varied in particular cases, but to have one rule for rich 
and poor, for the favorite at court and the countryman at plough." 

There are other objections which might be urged against 
the bill, dependent upon the construction finally given to its 
terms, which I deem it unnecessary to discuss. 

For the foregoing reasons I am of the opinion that House 
Bill No. 14 w^ould be unconstitutional if enacted into law. 



'62 OPINIONS OF THE ATTORNEY-GENERAL. 



Hawker and Pedler — Itinerant Vendor — Sales of 
Goods by Sample for Future Delivery. 

A person who conducts a transient business in a building or structure, making only 
bona fide sales by sample for future delivery, is not required to obtain a license 
either as an itinerant vendor under R. L., c. 65, §§1 to 12, as amended, or as a 
hawker and pedler under R. L., c. 65, § 13, as amended by Gen. St. 1916, c. 242. 

m°sskfn?r°S" You requcst my opinion as to whether a person who is 

uV£'mes!''^ conducting a transient business in a building or structure, 
May 10. making only bona fide sales by sample for future delivery, is 

required to obtain a license either as an itinerant vendor 
under R. L., c. 65, §§ 1 to 12, inclusive, as amended, or as a 
hawker and pedler under section 13 of that chapter, as amended 
by Gen. St. 1916, c. 242. 

Such a person plainly seems to come within the definition 
of an itinerant vendor set forth in R. L., c. 65, § 1. By 
section 2, however, it is expressly provided that the first 
twelve sections of this chapter, regulating itinerant vendors, 
shall not apply to "bona fide sales of goods, wares or mer- 
chandise by sample for future delivery." This provision 
makes it plain that a person conducting a business such as 
you describe is not required to obtain a license as an itinerant 
vendor. 

R. L., c. 65, § 13, as amended by Gen. St. 1916, c. 242, 
defines a hawker and pedler as follows:- — 

Whoever, except itinerant vendors, wholesalers or jobbers having a 
permanent place of business in this commonwealth and selling to dealers 
only, and commercial agents or other persons selhng at wholesale by 
sample, lists, catalogues or otherwise for future delivery, goes from town 
to town or from place to place in the same town carrying for sale or barter, 
or exposing for sale or barter, goods, wares or merchandise, shall be 
deemed a hawker or pedler within the meaning of this chaptr^r. 

In my opinion, the phrase "except itinerant vendors" refers 
to itinerant vendors as defined by section 1, and not merely to 
such itinerant vendors as are regulated and required to be 
licensed by the first twelve sections of the chapter. It follows 
that no persons coming within the definition of itinerant 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 63 

vendors set forth in section 1 can come within the definition of 
liawkers and pedlers set forth in section 13, as amended. 

Furthermore, a hawker and pedler is defined as a person who 
■"goes from town to town or from place to place in the same 
town carrying for sale or barter, or exposing for sale or barter, 
goods, wares or merchandise." A person who is conducting a 
transient business in a building or structure cannot be said 
to go from town to town or from place to place in the same 
town, within the meaning of this definition, nor, in my opinion, 
does a person who carries only samples, and who sells only for 
future delivery by use of such samples, carry for sale or expose 
for sale goods, wares and merchandise. Accordingly, a person 
■engaged in a business such as you describe is not a hawker 
and pedler, and is not required to obtain a license as such. 



Tidewaters, Compensation for Displacement of. 

The proprietors of the land bounding on the southerly side of the Mystic River be- 
tween Johnson's Wharf, so called, and the Chelsea bridge cannot now fill the 
flats adjoining their property except subject to the provisions of R. L., c. 96, 
^ 23, providing for compensation for tidewater displaced. Bradford v. Mel- 
calf, 185 Mass. 205, distinguished. 

You request my opinion upon the question of whether your TotheCom- 
Commission is authorized to make a charge for tidewater dis- waterway^and 
placement, under the provisions of R. L., c. 96, § 23, to present "isit^ 

owners of property within the area bounding on the southerly 

side of the Mystic River between Johnson's Wharf, so called, 
and the Chelsea bridge. 

By St. 1852, c. 105, the proprietors of land and flats within 
this area were incorporated under the name of the Mystic 
River Corporation, and the right was granted to this corpora- 
tion to fill certain flats within the boundaries specified in said 
act, provided that the work should be commenced within three 
years and completed within eight years from the passage of 
the act. This statute was repealed by St. 1855, c. 481, except 
so far as it related to the incorporation of the Mystic River 



64 OPINIONS OF THE ATTORNEY-GENERAL. 

Corporation. By the later statute substantially the same 
rights were conferred upon the corporation, some change being 
made in the boundaries within which the filling could be made, 
and the time for the completion of the work extended to ten 
years from the passage of the act. It appears that the Mystic 
River Corpora;tion attempted to divide the benefits among its 
individual members, to be held by them in severalty in pro- 
portion to their respective ownership of the shore. This at- 
tempt, together with adverse possession for a long period of 
time on the part of the individual owners, as against the cor- 
poration, was decided by our Supreme Judicial Court in the 
case of Bradford v. Metcalf, 185 Mass. 205, to have conferred 
upon the individual proprietors the rights which were granted 
to the corporation by the acts above referred to. 

The time allowed to the corporation for the doing of the 
work was extended by various statutes, the last of which ap- 
pears to be St. 1893, c. 334. That statute provided that — 

The time heretofore allowed for the completion of the improvements by 
the proprietors of the lands, wharves and flats lying between Johnson's 
wharf and Elm street on Mystic river, authorized by the special laws of 
this Commonwealth, is, with the rights and subject to the requirements 
of such laws, extended ten years from the passage hereof. 

In 1902 the precise question which you have presented arose 
in the case of Bradford v. Metcalf, supra (decided 1904), in 
which it was determined that the Commonwealth was not en- 
titled to receive compensation for displacement of tidewater 
caused by filling in this area. It is to be noted that the dis- 
placement involved in this case was caused by work which was 
done before the expiration of the time allowed for the com- 
pletion of the improvements, as extended by St. 1893, c. 334. 

No statute subsequent to 1893, further extending the time 
for the completion of this work, can be found, and, accordingly, 
I am of the opinion that the case of Bradford v. Metcalf, supra, 
is not applicable to the present situation, since the grant has 
by its own terms expired. Before any work can now be done 
in this area a license must be procured from your Commission, 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 

which will be subject to all the requirements of the general law, 
including payment for displacement of tidewater. The answer 
to your question, therefore, must be in the affirmative. 



65 



Attorney-General, Powers of — District Attorneys. 

The Attorney-General has as much power in investigating alleged criminal acts as 
any other official, but has no power to enforce the attendance of witnesses or 
the giving of testimony, that power being restricted solely to the grand jury. 

The Attorney-General has power equal to that of a district attorney in presenting 
evidence to the grand jury. 

Under R. L., c. 7, § 17, the Attorney-General, when present, has control of all cases, 
both civil and criminal, enumerated in that section. 

I acknowledge the receipt of an order of the House of Rep- To the House 

, p „ . p of Represent- 

resentatives m the following form : ■ — atives. 

May 15. 

Ordered, That the House of Representatives hereby requests the opinion 

of the Attorney-General upon the following question of law: Has the 
Attorney-General full power under existing statutes to investigate and 
to prosecute criminally any individual, firm or corporation that may 
have been guilty of fraud in the building or financing of the Hampden 
Railroad Corporation or in connection with the securities thereof? 

I assume that the fraud therein referred to means such fraud 
as would constitute a criminal offence at the common law or 
under the statutes of the Commonwealth. 

Your inquiry raises two questions: first, as to the power of 
the Attorney-General, under the existing statutes, to investi- 
gate any alleged criminal act; and second, as to his power to 
prosecute individuals, firms or corporations that may have 
been guilty thereof. 

As to the power of the Attorney-General to investigate: It 
is not entirely clear what is meant by "full" power. If the 
meaning of this question is to inquire whether the Attorney- 
General has power to investigate equal to that of any other 
official, the question is to be answered in the affirmative. If, 
on the other hand, the purpose of the inquiry is to ascertain 
whether greater power could be given to the Attorney-General 



66 OPINIONS OF THE ATTORNEY-GENERAL. 

to investigate than is now furnished under existing statutes, I 
answer your question in the negative. The Attorney-General 
may investigate an alleged criminal fraud to the extent to 
which the persons within whose knowledge the facts lie are 
willing to disclose them, but he has no power, in aid of such 
investigation, to summon, or enforce the attendance of, wit- 
nesses or to require any one to furnish information unless such 
person desires to do so. This power, in the type of case to 
which your question refers, is restricted solely to a grand jury. 

It is to be observed that under the Constitution of this Com- 
monwealth the prosecution of crimes punishable by imprison- 
ment in a State prison can be only after indictment by a grand 
jury. Jones v. Rohhim, 8 Gray, 329. The position of the dis- 
trict attorney or any other prosecuting officer before the grand 
jury is but that of an assistant to that body, and his right to 
remain and assist the grand jury is subject to their control. I 
think it plain that the power of the Attorney-General in assist- 
ing the grand jury is equal to that of a district attorney, and 
that he may assist and present evidence to that body with its 
consent. 

The second part of your question is more difficult to answer. 

The powers of the Attorney-General are not defined by the 
provisions of the Constitution. He is the general law officer of 
the Commonwealth, and usually it has been assumed that, 
where there is no provision of statute to the contrary, he may 
represent the Commonwealth in all proceedings of every nature 
in which the Commonwealth is a party or interested. From 
time to time, however, statutes have been passed giving powers 
to the district attorneys, and your question involves a consider- 
ation of whether such statutes, by providing that the district 
attorney shall represent the Commonwealth in certain instances, 
abridge the power of the Attorney-General by placing the dis- 
trict attorney in exclusive control in such instances. 

R. L., c. 7, § 1, provides that the Attorney-General shall ap- 
pear for the Commonwealth and its officers, boards and com- 
missions "in all suits and other civil proceedings in which the 
commonwealth is a party or interested, or in which the official 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 67 

acts and doings of said officers are called in question, in all the 
courts of the commonwealth, except upon criminal recogniz- 
ances and bail bonds." It also provides that "all legal services 
required by such officers, boards, commissions and commissioner 
of pilots for the harbor of Boston in matters relating to their 
official duties shall be rendered by the attorney general or under 
his direction." This statute undoubtedly gives to the Attorney- 
General the general control of all civil suits in which the Com- 
monwealth is a party or interested, other than suits upon 
criminal recognizances and bail bonds. 

Section 4 of the same chapter provides that the Attorney- 
General "shall consult with and advise the district attorneys 
in matters relating to their duties; and, if in his judgment the 
public interest so requires, he shall assist them by attending 
the grand jury in the examination of a case in which the ac- 
cused is charged with a capital crime, and appear for the com- 
monwealth in the trial of indictments for capital crimes." 

Section 17 of said chapter 7 provides: — 

The district attorneys within their respective districts shall appear for 
the commonwealth in the superior court in all cases, criminal or civil, in 
which the commonwealth is a party or interested, and in the hearing, in 
the supreme judicial court, of all questions of law arising in the cases of 
which they respectively have charge, shall aid the attorney general in the 
duties required of him, and perform such of his duties as are not required 
of him personally; but the attorney general, when present, shall have the 
control of such cases. 

Statutes are to be construed, when possible, so as not to be 
in conflict with each other, and I am therefore of opinion that 
the clause in section 17, "but the attorney general, when pres- 
ent, shall have the control of such cases," refers not alone to 
the case in wdiich the district attorney is aiding the Attorney- 
General in the duties required of him, but refers to all cases, 
both civil and criminal. By adopting such a construction the 
provisions of sections 1, 4 and 17 of chapter 7 are not incon- 
sistent. Under section 1 general authority over all civil cases, 
other than suits on recognizances and bail bonds, is expressly 



68 OPINIONS OF THE ATTORNEY-GENERAL. 

given to the Attorney-General. Under section 4 he is directed 
to appear in all capital cases if in his judgment the public in- 
terest so requires; and by section 17 the district attorney is 
required to appear in criminal cases and in civil cases unless 
relieved from this obligation by reason of the Attorney-Gen- 
eral's appearing in such cases, and at all times, within their 
respective districts, the district attorneys are required to 
render such aid to the Attorney-General as he may require. 

I am fortified in this view by the history of section 17. 
St. 1832, c. 130, § 9, provided for the division of the Com- 
monwealth into criminal districts, and for the appointment of 
a district attorney for each district. It provided that the dis- 
trict attorney's, within their respective districts, should appear 
and act for the Commonwealth in all cases, criminal or civil, 
in which the Commonwealth should be a party to the record 
or be interested, in the courts of common pleas and in the 
Supreme Judicial Court; and that they should also, within their 
respective districts, perform all the duties which the Attorne>'- 
General and the solicitor general, or either of them, before the 
passage of the act were by law obliged to perform, provided 
"that the attorney general, when present, shall in any court 
have the direction and control of any prosecutions and suits in 
behalf of the commonwealth." This provision was carried into 
the Revised Statutes, appearing in section 38 of chapter 13, as 
follows: "Provided, that the attorney general, when present, 
shall have the direction and management of all prosecutions 
and suits in behalf of the commonwealth." The clause as it 
now reads in the Revised Laws appears for the first time in 
section 31 of chapter 14 of the General Statutes, Section 9 
of chapter 181 of the General Statutes provides that "the 
provisions of the General Statutes so far as they are the 
same as those of existing laws, shall be construed as a contin- 
uation of such laws, and not as new enactments." This same 
provision is contained in the Public Statutes and the Revised 
Laws. 

Accordingly, I am of the opinion that "such cases," referred 
to in the latter part of section 17 of chapter 7 of the Revised 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 69 

Laws, refers to all cases, criminal or civil, in which the Com- 
monwealth is a party, enumerated in said section. 

Assuming, then, that by the use of the term "full power" 
to investigate is meant power equal to that of any other offi- 
cial, I answer your inquiry in the affirmative. 



Statutes — Repeal by Implication — Board of Health. 

The repeal of R. L., c. 75, § 57, by the enactment of St. 1902, c. 213, did not repeal 
by implication R. L., c. 75, § 53, relating to the effect of the neglect of local 
l)oards of health to give notice to the State Board of Health, now the State 
Department of Health, of diseases dangerous to the public health, in their re- 
spective cities and towns. 

You have requested my opinion as to whether R. L., c. 75, To the Board 

. ,1 ... ' ' of Charity. 

§ 53, is law at the present time, in view of the repeal of R. L., -^^[^^{j 
c. 75, § 57, by the enactment of St. 1902, c. 213. — 

R. L., c. 75, § 52, requires local boards of health having no- 
tice of a disease dangerous to the public health, in their re- 
spective cities or towns, to give notice thereof to the State 
Board of Health, now the State Department of Health. 

Section 53 provides: — 

If such board refuses or neglects to give such notice, the city or town 
shall forfeit its claim upon the commonwealth for the payment of expenses 
as provided in section fifty-seven. 

Section 57 provides that reasonable expenses incurred by 
local boards of health, in making the provision required by 
law for a person infected with such a disease, "shall be paid 
by such person, his parents or master, if able; otherwise by 
the town in which he has a legal settlement. If he has no 
settlement, they shall be paid by the commonwealth and 
the bills therefor shall be approved by the state board of 
charity." 

St. 1902, c. 213, § 1, although it contains several new re- 
quirements with reference to notice and determination of 
settlement, nevertheless leaves the law substantially the same 



OPINIONS OF THE ATTORNEY-GENERAL. 

chapter 565, to prohibit the sale or use of fireworks and fire- 
crackers, and to limit the time within which firecrackers and 
torpedoes may be used, was transferred to the Fire Prevention 
Commissioner by the provisions of said chapter 795. If such 
is the construction to be placed upon the act, the power of a 
city or town to prohibit the sale and use of fireworks and fire- 
crackers throughout its limits has been taken away and given 
to the Fire Prevention Commissioner. 

I think this is not a reasonable construction to place upon 
the act, and such construction would not be open to argu- 
ment but for the use of the word "restrain" in section 3 of 
said chapter 795. While the word "restrain" may include the 
power to prohibit, ordinarily such power, when derived from 
the power to restrain, is limited to such prohibition as is in- 
cidental to the powder to regulate. 

In my judgment, the purpose of St. 1914, c. 795, as its title 
indicates, is for the better prevention of fires. Under the pro- 
visions of St. 1910, c, 565, cities and towns were not restricted, 
in the making of by-laws to prohibit the sale or use of fire- 
works or firecrackers, to those reasonably adapted to prevent 
fires. By the passage of the act cities and towns were given 
full power, in the exercise of local self-government, to deter- 
mine whether or not fireworks and firecrackers should be sold 
at all, and to determine and limit the time within which fire- 
crackers and torpedoes could be used. It was not a power of 
regulation, such as is given to the Fire Prevention Commis- 
sioner, to determine under what conditions they might be sold 
or used, but the power to pass by-laws and ordinances appli- 
cable throughout the city or tow^n to prohibit absolutely the sale 
or use of fireworks and firecrackers, or to limit the time within 
which firecrackers and torpedoes could be used. This power, 
in my opinion, still remains in the cities and towns, and thus 
cannot be exercised by the Fire Prevention Commissioner. I 
think it plain, however, that, as incidental to his power to 
prescribe regulations not inconsistent with the first or second 
sections of chapter 565 of the Acts of 1910, for the keeping, 
storage, transportation, manufacture, sale and use of fireworks 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 73 

and firecrackers, he may restrain or prohibit their use where 
such restraint or prohibition is reasonably necessary for the 
prevention of fires. 



Workmen's Compensation Act — Authority of Counties 
OR Municipalities to insure their Liability there- 
under. 

A county, city, town or district having the power of taxation, which has accepted 
the provisions of St. 1913, c. 807, may insure its liability to pay the compensa- 
tion therein provided for with a liability insurance company or the Massachu- 
setts Employees Insurance Association, hut cannot take out such a policy 
covering some of its departments and not others. 

You have requested my opinion as to whether a county, Totheinsur- 
citv, town or district having the power of taxation, which has sion^er.""""'" 

. . 191'' 

adopted the provisions of St. 1913, c. 807, may insure its May 24. 
liability to pay compensation to injured laborers, workmen 
and mechanics with the association created by St. 1911, c. 751, 
Pt. IV, or with a liability insurance company, in accordance 
with section 3 of Part V of said act, or must carry its risk 
directly, as a self-insurer. 

Gen. St. 1915, c. 244, entitled "An Act to fix responsibility 
for the payment of workmen's compensation by the Common- 
wealth and by counties, cities, towns and districts," by section 
1 required every city, town, etc., which had accepted the 
provisions of St. 1913, c. 807, to "designate a person to act as 
its agent in furnishing the benefits due under chapter seven 
hundred and fifty-one of the acts of the year nineteen hundred 
and eleven and acts in amendment thereof and in addition 
thereto." 

Section 2 is as follows : — 

This act shall not apply to counties, cities, towns and districts which 
are insured under the provisions of chapter seven hundred and fifty-one 
of the acts of the year nineteen hundred and eleven and acts in amend- 
ment thereof. 

While the language here used refers in express terms only to 
the present ("counties, cities, towns and districts which are 



OPINIONS OF THE ATTORNEY-GENERAL. 

insured"), it is inconceivable that the Legislature intended to 
exempt only those counties, cities, towns and districts, if any, 
which happened to be insured on the date when the act took 
effect. It must have been intended as of general application, 
effective throughout the future, and equivalent to saying that 
this act shall not apply to counties, cities, towns and districts 
which may provide insurance under the provisions of St. 1911, 
c. 751. 

It may be that this act was passed under the impression that 
St. 1913, c. 807, in conjunction with St. 1911, c. 751, author- 
ized counties, cities, towns and districts to insure the liability 
thereby created or permitted, and that such assumption was 
erroneous. However, I deem it unnecessary to determine 
whether or not that is the case. 

As was said by the late Chief Justice Marshall — 

A mistaken opinion of the Legislature concerning the law does not 
make law; but if this mistake is manifested in words competent to make 
the law in future, we know of no principle which can deny them this 
effect. Postmaster General v. Early, 12 Wheat. 136, 148. 

This principle has been recognized and acted upon by other 
courts. Norton v. S-pooner, 9 Moore, P. C, 129; Queen v. 
Mayor of Oldham, L. R. 3 Q. B., 474; State v. Miller, 23 Wis. 
634; Swann v. Buck, 40 Miss. 268, 308; State v. Eskridge, 1 
Swan (Tenn.), 413. 

The question then arises whether the language of this section 
is broad enough to confer authority to take out insurance of 
this type, if that authority did not already exist. 

Assuming for the moment that there was no such authority, 
and that that fact was known to the Legislature, it would 
then appear that the Legislature must have intended to grant 
the right to insure as a necessary implication from the language 
used. The exemption of a person or corporation from certain 
liabilities, in the event some act is done, contains in itself 
authority to do the act. 

In any event, this section is an absolute nullity unless these 
districts are authorized to insure — a result which, under one 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 75 

of the fundamental canons of construction, is to be avoided if 
in any way possible. 

I fail to see how the language used is any the less "com- 
petent to make the law in the future" if we assume that the 
Legislature was mistaken as to the existing state of the law, 
than if we assume the contrary. In either event the language 
used is the same. 

It may be answered that the ultimate guide to correct 
statutory interpretation is the intent of the Legislature, and 
that this intent is different in the cases supposed, even though 
the language is the same. But it is the basic intent and pur- 
pose which is the real guide, and that intent, in the present 
case, was to exempt certain counties, cities, towns and dis- 
tricts from the application of the statute. This intent is car- 
ried out only if the power to insure is held to exist. 

The form of your question implies some doubt because of 
the limited authority of taxation conferred upon cities and 
towns. R. L., c. 25, § 15, besides authorizing taxation for 
many specific purposes, contains at the end the following 
words: "For all other necessary charges arising in such town." 
This language has been employed since 1693, and though con- 
siderably limited in its scope by the decisions of the courts, it 
frequently has been held to include matters in which "a town 
or city has a duty to perform, an interest to protect, or a right 
to defend." Waters v. Bonvouloir, 172 Mass. 286, 288. 

In Dunn v. Framingham, 132 Mass. 436, 437, it is said: — 

Therefore, whenever the Legislature confers a power or imposes a duty 
upon towns, this clause applies and gives the towns authority to grant 
money which is required to enable them to execute the power or to per- 
form the duty. 

If the Legislature has authorized insurance in this class of 
cases, that authorization carries with it the right to expend 
moneys for the purpose, and to obtain those funds by taxation. 

Accordingly, though with some hesitation, I have come to the 
conclusion that your first question is to be answered in the 
affirmative. 



OPINIONS OF THE ATTORNEY-GENERAL. 

You also ask whether a municipality has the right to take 
out a workmen's compensation policy with an insurance com- 
pany covering the laborers, workmen an^ mechanics of some 
of its departments and not such employees in other depart- 
ments. 

The language of neither St. 1913, c. 807, nor St. 1911, c. 
751, contains any suggestion that employees of a single em- 
ployer may be divided into classes, one of which shall be pro- 
tected in one manner and others in another. The original 
idea, upon the basis of which St. 1911, c. 751, was framed, was 
of one insurance company, in which all employers who came 
under the act should insure all their employees. 

Part V, section 2, of that statute defines "employee" as 
including "every person in the service of another," with certain 
exceptions not here material. Under Part II of the act " em- 
ployees" of subscribers are given certain rights of compensation. 
Part V, section 3, permits liability insurance companies "to 
insure the liability to pay the compensation provided for by 
part two." 

In my opinion, when insurance is provided under this act it 
applies, subject to exceptions immaterial to this discussion, to 
all employees of the employer obtaining the insurance, and 
there is no ground for excepting part of such employees by 
their division into departments or otherwise. Cox's Case, 225 
Mass. 220. 

It is perhaps needless to point out that this question does not 
relate to a policy of indemnity, but only to a workmen's com- 
pensation policy, under which the insurance company takes the 
place of the "association," under the provisions of St. 1911, c. 
751. 

It follows that in my opinion your second question is to be 
answered in the negative. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 77 



Corporations — Issue of New Stock — Right of Stock- 
holders TO PARTICIPATE PROPORTIONATELY — CONSTITU- 
TIONAL Law. 

A statute which purports to authorize a railroad corporation to issue certain pre- 
ferred stock, exchangeable for common stock, without the consent of certain 
stockholders who are denied the right to participate in such issue, is unconsti- 
tutional in so far as it affects the value of the shares of such stockholders by 
reducing their interest in the property of the corporation. 

You request my opinion upon certain questions raised bv a To the joint 

1 1 • r. TT -11 TV- r^i Committee on 

proposed amendment to section 1 of House Bill ^so. 2061. The Raj^'roads. 
bill provides as follows : — iiay^. 

Section 1. The New York, New Haven and Hartford Railroad Com- 
pany is authorized, for the purpose of paying its indebtedness, to issue, 
subject to approval of the public service commission and the provisions 
of chapter two hundred and ninety-nine of the General Acts of the year 
nineteen hundred and fifteen, shares of preferred stock of the par value 
of one hundred dollars each, upon which the company may pay dividends 
out of its net income. 

Section 2. Said preferred stock may be issued under such provisions 
for future retirement or exchange for common stock as may be authorized 
by a vote of stockholders holding not less than two-thirds of the stock of 
such company and approved by the public service commission. 

The amendment proposed adds at the end of section 1 the 
following : — 

Provided, however, that if such preferred shares entitle the holders to 
any voting power, no railroad corporation or railroad holding company or 
express company, whether organized under the laws of this commonwealth 
or any other state, shall directly or indirectly subscribe for, purchase or 
hold any such preferred shares, and upon the offer of such preferred shares 
to the stockholders of the New York, New Haven and Hartford Railroad 
Company any railroad corporation, railroad holding company or express 
company which is a stockholder shall be excluded from such offer. 

Your specific questions are as follows: — 

1. As to whether the New York, New Haven & Hartford Railroad 
Company could lawfully comply with the proviso if incorporated into 
the act. 



78 OPINIONS OF THE ATTORNEY-GENERAL, 

2. As to whether non-compliance with the proviso would result in the 
New York, New Haven & Hartford Railroad Company losing the right 
conferred by the act to pay dividends out of its net earnings. 

I assume from your inquiry that certain railroad corpora- 
tions, railroad holding companies and express companies are at 
present stockholders of the New York, New Haven & Hart- 
ford Railroad Company. 

The effect of the proposed amendment is to provide, as a 
requirement of the new issue of the preferred shares, that none 
of such shares shall be offered to or held by a railroad corpo- 
ration, a railroad holding company or an express company. 

You have called my attention to the cases of Gray v. Port- 
land Bank, 3 Mass. 363, and Athins v. Albree, 12 Allen, 359. 
The effect of these decisions is that each stockholder has a 
vested right to participate proportionately in any augmenta- 
tion of the capital of the corporation, at least where new stock 
is sold at less than its true value. The reason of this is plain. 
In a sense stockholders are partners. Their interest in the 
partnership and the partnership property is represented by the 
shares they hold, and if it were permissible for those in control 
of the corporation so to increase the capital without giving to 
all stockholders an opportunity to participate proportionately in 
such increase, the interest of the stockholders denied the op- 
portunity to participate would arbitrarily be changed, and a 
part of their interest in the corporation would thereby be taken 
away from them. It would in effect be a taking of property 
without due process of law. 

In this Commonwealth there is a reserve power in the Legis- 
lature to amend or alter the charter of a corporation, but this 
power has some limitations, and it cannot be exercised so as to 
take away property of the corporation or of the stockholders. 
Commonwealth v. Essex Co., 13 Gray, 239, 253.' It follows that, 
in order to increase the capital stock under authority of the 
Legislature, it must be done in such a w-ay as not to impair 
the value of the stock of shareholders who are denied the right 
to participate in the new issue. 

So far as the proposed amendment may affect participation in 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 79 

the control and management of the property of the corporation, 
I am incKned to the view that it is free from objection. Stat- 
utes affecting this right have in the past been enacted and have 
operated in this Commonwealth without question. An illustra- 
tion is St. 1908, c. 636, § 2, which provides that if the increase 
in the capital stock does not exceed 4 per cent of the existing 
capital stock it may be sold at public auction without first 
offering the same to the stockliolders. St. 1871, c. 392, pro- 
vided that any increased stock should be sold at public auction. 
This was the only manner in which increased stock in a railroad 
corporation could be sold from that time until the passage of 
St. 1878, c. 84, which provided that such increased stock might 
first be offered to the stockholders. By St. 1893, c. 315, it was 
provided that stock in railroad corporations should first be 
offered to the stockholders, except that where the increase did 
not exceed 4 per cent it might be sold at public auction without 
first offering the same to the stockholders. 

So far, however, as the bill, as amended, affects the value of 
shares of present stockholders by reducing the interest of such 
stockholders in the property of the corporation, I am of the 
opinion that it would be unconstitutional if construed as 
authorizing the issue of the new stock without the consent of 
the stockholders denied the right to participate. 

The question of whether the issuance of this stock in the 
manner proposed would have this effect is complicated by the 
provision in the bill that the new stock may be issued ex- 
changeable for common stock. This is a question of fact 
which, obviously, I am not in a position to determine. 

Accordingly, I am of the opinion that if the bill has the 
effect above indicated, and is construed to authorize the issue 
without the consent of stockliolders who are denied the right 
to acquire such stock, your first question is to be answered in 
the negative; otherwise, in the affirmative. 

The answer to your second question, in the first instance, is 
in the affirmative, and in the second it is in the affirmative as 
to such stock as may be held by railroad corporations, rail- 
road holding companies and express companies. 



80 OPINIONS OF THE ATTORNEY— GENERAL. 



Constitutional Law — Equal Protection of the Laws — 
Exemption of Farmers or Agriculturists from 
General Anti-trust Act. 

A general anti-trust bill which exempts agreements between farmers or other per- 
sons engaged in agricultural pursuits, relative to the sale of products of their 
own lands, would be unconstitutional if enacted into law, as denying to all 
persons within the State the equal protection of the laws, in violation of Article 
XIV of the Amendments to the Constitution of the United States. 



To the Go 
ernor. 
1917 
May 24. 



You have requested my opinion upon the constitutionality 
of an act entitled "An act to prohibit combinations and 
monopolies to control prices of commodities in common use," 
which has been passed by both branches of the General Court 
and is now awaiting the approval of Your Excellency. This 
act is as follows : — 

Section 1. Whoever agrees or combines with another to fix or control 
the price at which any commodity or article in common use shall be sold 
by any person, or to refrain from competition with any person in the 
buying or selling of any such commodity or article, and whoever monopo- 
lizes or attempts to monopolize, or combines or conspires with any other 
person to monopolize, any such article or commodity, shall be punished 
by a fine of not more than one thousand dollars, or by imprisonment in 
the house of correction for not more than three years. 

Section 2. The provisions of this act shall not apply to agreements 
between vendor and vendee as to the price at which such goods are sold 
by the vendor to the vendee; nor to agreements between persons owning 
property jointly or in common as to the price at which such property 
shall be sold; nor to agreements between the vendor and vendee, in con- 
nection with the sale of the good-will of a business, which are reasonably 
necessary for the preservation and protection of the property which is 
sold; nor to agreements between farmers, or other persons engaged in 
agricultural or horticultural pursuits, relative to the sale of the products 
of their own farms; nor shall the labor of a person be considered a com- 
modity or article in common use, within the meaning of this act. 

Section 3. The provisions of this act shall apply to, and the word 
"person" as used herein shall include, corporations. 

Section 4. The provisions of this act shall remain in force only for 
the duration of the existing state of war. 

House Bill No. 1805, from which this act originated, was 
reported on March IG, 1917, by the joint committee on the 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 81 

judiciary, and enacted by the House of Representatives in 
form identical with the first three sections of the present act. 
While the bill was in the committee on bills in the third read- 
ing of the Senate I advised the Hon. Alpheus Sanford, chair- 
jnan of that committee, and the Hon. James F. Cavanagh, 
chairman of the joint committee on the judiciary, under date 
of April 5, 1917, that the bill, if enacted in the form it was 
then in, would, under the decision of Connolly v. Union Sewer 
Pipe Co., 184 U. S. 540, be unconstitutional, and recom- 
mended that the exemption of agreements between farmers 
or other persons engaged in agricultural or horticultural pur- 
suits, relative to the sale of the products of their own farms, 
should be stricken out, in order to insure the constitutionality 
of the bill under the Connolly case. On the same day the 
Senate committee on bills in the third reading reported the 
bill, recommending that this be done, and the bill was accord- 
ingly passed by the Senate, with the exemption of agreements 
between farmers or other persons engaged in agricultural or 
horticultural pursuits, relative to the sale of the products of 
their own farms, stricken out. The House of Representatives 
non-concurred in this amendment, and the bill was thereupon 
referred to the committee on conference. This committee 
reported under date of May 15, 1917, recommending that the 
Senate recede from its amendment, and that the bill be 
amended by adding the following new section: — 

Section 4. The provisions of this act shall remain in force only for 
the duration of the existing state of war. 

This report was accepted by both branches of the General 
Court and enacted in its present form. 

If the question of whether the exemption from the opera- 
tion of a general anti-trust bill, of agreements between farmers 
or other persons engaged in agricultural pursuits, relative 
to the sale of the products of their own lands, would be such 
an arbitrary discrimination as to render the bill unconstitu- 
tional, as denying to all persons the equal protection of the 
laws, were to arise now for the first time, it might be con- 



82 OPINIONS OF THE ATTORNEY-GENERAL. 

tended with much force that this exemption amounted to no 
more than a reasonable classification, on the ground that it 
was not within the evil sought to be remedied, since agricul- 
tural producers must dispose of their stock quickly and have 
no facilities for combinations. This contention is, however, 
now concluded by the Connolly case, supra (1902), in which 
the Supreme Court of the United States flatly decided that 
section 9 of an anti-trust statute of Illinois of 1893, which 
provided that "the provisions of this act shall not apply to 
agricultural products or live stock while in the hands of the 
producer or raiser," created an arbitrary discrimination in 
favor of farmers and stock raisers, and denied to the other 
persons falling within the scope of the bill the equal protection 
of the laws, guaranteed by our Federal Constitution. It 
further decided that this had the effect of rendering the entire 
act unconstitutional, since the first section of the act embraced 
within its terms all persons, firms, corporations or associations; 
and if section 9 were eliminated as unconstitutional, then the 
act, if it stood, would apply to agriculturists and live-stock 
dealers, which result the Legislature could not be held to have 
intended. 

The Supreme Court of the United States, in the case of 
International Harvester Co. v. Missouri, 234 U. S. 199 (1914), 
decided that the exemption of labor unions from such a bill 
was constitutional, but cited with approval and reaffirmed the 
Connolly case. 

This case is decisive of the present question, unless the 
effect of section 4 of our act is to create a sound reason for the 
difference in treatment accorded to farmers or agriculturists 
and all other persons included in the act. 

It is difficult to see how such an emergency justifies the 
difference in treatment between these classes, and, accordingly, 
I am of the opinion that the act in question would be uncon- 
stitutional if allowed to become a law. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 83 



Constitutional Law — Compulsory Workmen's Compensa- 
tion Act — ■ Right to Trial by Jury — Police Power. 

A statute making it compulsory for all employers in this Commonwealth to take out 
insurance under the workman's compensation act (St. 1911, c. 751), but allow- 
ing employees to claim their common-law rights under the existing compensa- 
tion act, would be unconstitutional, as an unreasonable exercise of the police 
power. 

A workmen's compensation act compulsory alike upon employer and emploj'ee 
would be constitutional, if limited to extra hazardous occupations and exclud- 
ing persons engaged in interstate commerce, although making no provision 
for a trial by jury. 

I acknowledge an order from the honorable House of Repre- to the House 
sentatives in the following form : — 



Ordered, That the House of Representatives hereby requests the opinion 
of the Attorney-General on the following question of law: Would House 
Bill No. 973 of the current year, being "An Act to require all employers 
coming under the provisions of the workmen's compensation act to insure 
for the protection of their employees," if enacted into law be valid and 
in accordance with the provisions of the Constitution of the Common- 
wealth and of the United States? 

The bill referred to is as follows : — 

Section 1. All employers shall secure compensation to their em- 
ployees by becoming and continuing as subscribers in the association or 
in some stock or mutual liability insurance company authorized to do 
business within this commonwealth. 

Section 2. If an employer shall be in default under the provisions of 
the preceding section for a period of thirty days, he may be enjoined by 
the superior court from carrying on his business while such default con- 
tinues. 

This bill, in my opinion, is not in proper form for enact- 
ment, since its meaning and application cannot be determined 
except by reference to the title. If the bill is to be enacted, 
section 1 should be so drawn as to refer in terms to the work- 
men's compensation act and its amendments. It has been called 
to my attention, however, that this bill has been referred to 
the next General Court, and, accordingly, I assume that my 
opinion is desired not so much with reference to a bill in this 



atives. 

1917 

May 23. 



84 OPINIONS OF THE ATTORNEY-GENERAL. 

particular form as for use in connection with some legislative 
action looking toward the enactment of legislation along the 
general lines suggested by this bill. I therefore discuss the 
question presented by the order as a general proposition, with- 
out reference to the particular phraseology of the bill. 

I assume that the purpose of this order is to obtain an 
opinion as to whether a statute may be enacted requiring all 
persons having in their service employees who are entitled to 
the benefits of the workmen's compensation act (St. 1911, c. 
751) and its amendments to take out insurance under its pro- 
visions. In other words, the question is: Can the provisions 
of this statute, by which an employer is given the right to 
elect as to whether he will bring himself within the statute by 
subscribing to the Massachusetts Employees Association or 
insuring with some other liability insurance company, be so 
amended as to require him thus to insure, without modifying 
the other features? 

The workmen's compensation act now in force in this Com- 
monwealth is entirely elective in character, both as to em- 
ployers and as to employees. An employer may insure under 
its provisions or not, as he chooses. If he does not elect to do 
so, his employees, in case of injury, obtain more extensive 
rights against him than they otherwise would have, since, in 
that event, an employer is deprived of any defence on the 
ground that the employee was negligent, or that the injury was 
caused by a fellow servant, or that the employee assumed the 
risk. If the employer elects to insure, the employee is given 
the right to choose whether he will come within the provisions 
of the act and take the benefit of the insurance or not. On 
entering the employment or, if the employer insures after the 
employee has been hired, within thirty days after such insurance, 
the employee may claim his common-law rights by notice in 
writing. If he fails to do so, he is held to have chosen to accept 
the benefits of the act. If he affirmatively elects not to accept 
the benefits of the act, in case of injury he obtains only his 
common-law rights as they existed before the enactment of the 
employers' liability act. Thus it will be seen that the existing 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 85 

act gives both employer and employee a right to choose whether 
they will come within the provisions or not, although an at- 
tempt has been made to induce both parties to choose in favor 
of the act by making the results of that choice in the ordinary 
case more attractive than the results of the opposite course. 

The effect of the proposed bill is merely to deprive the em- 
ployer of his right to elect not to come within the provisions 
of the act. The bill requires him to subscribe to the Massa- 
chusetts Employees Association or otherwise to insure, under 
penalty of being enjoined from carrying on his business if he 
fails to do so. The bill, however, leaves the remainder of the 
act entirely unaffected, and thus still leaves to the employee 
the right, upon entering the service or upon notice that the 
employer is insured, to choose whether he will come within the 
provisions of the act or not. 

It was largely because of its elective character that the 
workmen's compensation act, as originally enacted, was sus- 
tained by the Supreme Judicial Court as constitutional. Opin- 
ion of the Justices, 209 Mass. 607; Young v. Duncan, 218 Mass. 
346. 

The court has never had occasion to pass upon the question 
as to whether an act compulsory in any of its features could 
constitutionally be enacted. It is my opinion, however, that 
a law which requires all employers and employees who come 
within its scope to submit to its provisions is not beyond the 
power of the General Court, if such act is properly drawn and 
properly limited. This is made plain, so far as the Federal 
Constitution is concerned, by two recent decisions of the United 
States Supreme Court. 

In Neic York Central R.R. Co. v. White, 243 U. S. 188, the 
court unanimously sustained the workmen's compensation law 
of the State of New York. That law establishes forty-two 
groups of hazardous employments, and requires all employers 
and employees iti such groups to comply with its provisions 
and to submit to the exclusive provisions for compensation 
which it establishes in case of personal injury. Aside from the 
fact that the law is compulsory in its application to all per- 



86 OPINIONS OF THE ATTORNEY-GENERAL. 

sons comino; within its scope, the system of compensation pro- 
vided and the method of administering it are analogous to those 
established by our act. This statute, however, permitted an 
employer to secure compensation to his employees by (1) in- 
suring in a State fund established by the act; or (2) insuring 
in any stock or mutual insurance company authorized to trans- 
act such business in the State; or (3) paying the compensation 
provided by the act himself, the right to make this latter elec- 
tion being conditioned upon furnishing satisfactory proof to the 
commission of his financial ability to pay, and, if required, 
upon depositing security with the commission. The court held 
that it is within the power of the States entirely to set aside 
the rights and liabilities of employers and employees in accident 
cases, as they exist at common law, at least provided that some 
reasonably just substitute is given therefor. It held that the 
substitute provided, of compensation upon a fixed and reason- 
able basis in all cases of injury, whether with or without fault, 
short of intentional injury on the part of either the employer or 
employee, was not an unreasonable nor an arbitrary scheme. 
In view of the fact that this statute gave to an employer a 
reasonable opportunity to subject himself only to liability to 
his employees, instead of bearing through insurance the burdens 
of all industrial accidents in industries of his class, none of the 
judges appear to have had any doubt as to the reasonable 
character of the statute in the liability which it imposed on 
employers. 

In Mountain Timber Co. v. Washington, 243 U. S. 219, the 
court sustained the compensation act of the State of Washing- 
ton, four justices dissenting. This statute was similar in char- 
acter to the New York statute, and, like that statute, was 
applicable only to certain classes of employments expressly 
recognized as "extra hazardous." It differed, however, from 
the New York statute in one essential feature, namely, all 
employers were required to secure compensation to their em- 
ployees through contributions to a State fund established by 
the act for the purpose of insuring payments of compensation 
under it. This statute was thus in all respects compulsory, 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 87 

and required each employer coming within its scope to con- 
tribute toward the payment of compensation to all employees 
in industries of his class, entirely without reference to whether 
they received their injuries in his employ or not. In dealing 
with this additional feature of the Washington statute the court 
says : — 

We are clearly of the opinion that a State, in the exercise of its power 
to pass such legislation as reasonably is deemed to be necessary to promote 
the health, safety, and general welfare of its people, may regulate the 
carrying on of industrial occupations that frequently and inevitably 
produce personal injuries and disabihty with consequent loss of earning 
power among the men and women employed, and, occasionally, loss of 
life of those who have wives and children or other relations dependent 
upon them for support, and may require that these human losses shall be 
charged against the industry, either directly, as is done in the case of the 
act sustained in New York Central R.R. Co. v. White, supra, or by publicly 
administering the compensation and distributing the cost among the 
industries affected by means of a reasonable system of occupation taxes. 
The act cannot be deemed oppressive to any class of occupation, provided 
the scale of compensation is reasonable, unless the loss of human life and 
limb is found in experience to be so great that if charged to the industry 
it leaves no sufficient margin for reasonable profits. But certainly, if any 
industry involves so great a human wastage as to leave no fair profit 
beyond it, the State is at liberty, in the interest of the safety and welfare 
of its people, to prohibit such an industry altogether. 

It is to be noted that in sustaining this statute the court 
emphasizes the fact that it is applicable only to persons en- 
gaged in "industrial occupations that frequently and inevi- 
tably produce personal injuries and disability;" or, in other 
words, to extra hazardous occupations. This emphasis strongly 
suggests that if this statute had applied to all occupations, 
without reference to the hazard involved, it would have been 
declared invalid by the court. 

These decisions of the Supreme Court of the United States 
make it plain that a workmen's compensation act enacted in 
this Commonwealth, applicable only to extra hazardous em- 
ployments, and compulsory as to all employers and employees 
engaged in such industries, would not be in violation of the 
Constitution of the United States. 



OPINIONS OF THE ATTORNEY-GENERAL. 

The fundamental rights guaranteed by the Declaration of 
Rights of the Constitution of Massachusetts are in substance 
the same as those protected by the Fourteenth Amendment to 
the Federal Constitution. In Commonwealth v. Strauss, 191 
Mass. 545, 550, the Supreme Judicial Court said: — 

The rights relied upon under the Fourteenth Amendment to the Consti- 
tution of the United States, and under the Declaration of Rights in the 
Constitution of Massachusetts, are substantially the same. 

Though our court, in interpreting and applying the provi- 
sions of the Massachusetts Constitution to such a statute, is 
the final authority and is not bound by the decisions of the 
Supreme Court of the United States, yet in view of the high 
authority of that court and its clear reasoning in these cases 
it seems highly probable that our Supreme Judicial Court would 
arrive at the conclusion that such a statute is not inconsistent 
with our Declaration of Rights. 

The enactment of such a compulsory law would, however, 
raise one serious question not involved in the decisions referred 
to, namely: Would a compulsory law, administered, like the 
present law, by a State board which determines all questions 
of fact, be a violation of the right to a trial by jury guaranteed 
by the Massachusetts Constitution? Article XV of the Decla- 
ration of Rights is as follows: — 

In all controversies concerning property, and in all suits between two 
or more persons, except in cases in which it has heretofore been other- 
ways used and practised, the parties have a right to a trial by jury; and 
this method of procedure shall be held sacred, unless, in causes arising on 
the high seas, and such as relate to mariners' wages, the legislature shall 
hereafter find it necessary to alter it. 

It would seem that in the light of these decisions a contro- 
versy as to the extent of the injury of an employee and the 
amount of compensation which he is entitled to receive there- 
for under such an act is not a controversy concerning prop- 
erty, within the meaning of this provision; nor, in my opinion, 
is a proceeding before an industrial accident board for the 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 

arbitration of disputed questions of fact arising between an 
employee and an insurance company, on a claim for compensa- 
tion under a compulsory compensation act applicable to haz- 
ardous businesses, a suit between two or more persons, within 
the meaning of this provision. Neither the committee of 
arbitration provided for by the act nor the Industrial Accident 
Board is a court in the strict sense of the word, nor are their 
members judicial officers, within the meaning of the Constitu- 
tion. Pigeon's Case, 216 Mass. 51, 56. The proceedings be- 
fore these bodies are hearings before administrative boards 
authorized to make determinations of fact in the administra- 
tion of the act, rather than trials of suits between two or more 
persons. 

In my opinion, however, this matter need not be put on any 
narrow ground. It being held, as has been done by the Su- 
preme Court of the United States, that actions of law between 
employers and employees in hazardous occupations may be 
abolished, and a reasonable system of compensation adminis- 
tered by a public board substituted therefor, it would seem to 
follow that where such system has been established the con- 
stitutional right to a trial by jury of questions of fact relating 
to such matters no longer exists. Rights of action within the 
scope of the system have been abolished, and, therefore, there 
can be no suit between parties to be determined by a jury. 
As the court said in Mountain Timber Co. v. Washington, at 
page 235: — 

As between employee and employer, the act abolishes all right of re- 
covery in ordinary cases, and therefore leaves nothing to be tried by 
jury. 

This was also the view expressed by the Supreme Court of 
the State of Washington in sustaining the same law. State v. 
Mountain Timber Co., 75 Wash. 581. 

A fundamental feature of all workmen's compensation laws 
is that so far as possible they shall work automatically, the 
amount of compensation being readily ascertainable when the 
extent of the injury is known. It is essential to the proper 



90 OPINIONS OF THE ATTORNEY-GENERAL. 

administration of these laws that, except so far as questions of 
law arise, they should be executed without the intervention of 
the courts. To sustain as reasonable the scheme substituted 
for the common-law liability of the employer, and to deny the 
validity of a fundamental feature of its method of adminis- 
tration, can be regarded only as an absurd result. In my 
opinion, a properly limited compulsory workmen's compensation 
law would not be inconsistent with the provision of our Con- 
stitution guaranteeing a trial by jury. 

Accordingly, I reach the conclusion that a compulsory work- 
men's compensation law similar either to that in force in New 
York or in Washington would be valid if enacted in this 
Commonwealth . 

The proposed legislation referred to in the order of the 
House does not, in my opinion, make the existing workmen's 
compensation law of this Commonwealth a compulsory law 
such as those I have described. House Bill No. 973 or any 
similar measure, if enacted into law, would apply its compul- 
sory provisions only to employers. It would still leave to em- 
ployees their right under the existing compensation act to 
elect their common-law rights under the methods provided by 
the existing act, and thus to subject their employers to actions 
at law for damages in proper cases. Employers, on the other 
hand, would be required by such enactment to obtain insur- 
ance under the compensation act, and thus each employer 
would be required to bear his share of the burdens of all in- 
dustrial accidents in his industry, whether caused to his em- 
ployees or not, and at the same time be required to run the 
risk of suits by any of his employees who choose to claim their 
common-law rights. The only remedy of the employer would 
be to refuse to hire, or to discharge, any person who claimed 
such rights. It seems to me that to make the law compulsory 
as to the employer and elective as to the employee is an arbi- 
trary discrimination and not a reasonable application of the 
police power. It does not appear to find justification in any 
industrial condition that has been called to my attention. 

Furthermore, our present compensation act applies to all 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 91 

employees except domestic servants and farm laborers. If the 
proposed compulsory insurance provisions were added to it, 
every person in the Commonwealth having one or more em- 
ployees other than domestic servants or farm laborers would 
be required to secure insurance under the act. This compul- 
sory feature would apply to all employments, whether to any 
appreciable extent hazardous or not. The small merchant 
with one clerk, the business or professional man with but one 
stenographer, or with only an office boy,, and every other 
business man in the Commonwealth, no matter how trivial 
were the risks run by his employees in the course of their em- 
ployment, would be required to insure under the act. I know 
of no conditions which warrant any such compulsion. The 
decisions of the Supreme Court of the United States to which 
I have referred are based largely upon the fact that the laws 
there under consideration are confined in their operation to 
industries reasonably classified as extra hazardous. In my 
opinion, a compulsory law applicable to all employees except 
domestic servants and farm laborers would be held to be 
unconstitutional, as an unreasonable exercise of the police 
power. 

The proposed bill is extremely broad in its terms, and ap- 
pears to apply even to persons and corporations engaged in 
interstate commerce. Very recent decisions of the Supreme 
Court of the United States indicate that if given such a broad 
application the statute would be to that extent in violation of 
the Federal Constitution. If legislation of this sort is to be 
enacted, it should expressly be made inapplicable to persons 
engaged in interstate commerce. 

If a valid compulsory workmen's compensation law is en- 
acted, I can see no reason why an employer who fails to com- 
ply with its provisions may not be subjected to the penalty of 
an injunction restraining him from further conducting his 
business until he has so complied, in the general manner pro- 
vided by the second section of this bill. 



92 OPINIONS OF THE ATTORNEY-GENERAL. 



Taxation — Income Tax — Deposits in Savings Depart- 
ments OF Trust Companies. 

Under Gen. St. 1916, c. 269, § 2 (a), 1st, interest on deposits in the savings depart- 
ments of trust companies is exempted from the income tax only when the 
amounts of such deposits do not exceed the limits upon deposits in savings 
banks. 



To the Tax 
Commissioner. 

1917 
May 31. 



You request my opinion as to whether the provision of Gen. 
St. 1916, c. 269, § 2 (a), 1st, relating to the exemption from the 
income tax of the interest on certain deposits in the savings 
departments of trust companies, applies only to the interest on 
accounts of individual depositors not in excess of the limits 
imposed upon deposits in savings banks, or whether it is ap- 
plicable to interest on such part of all accounts as does not 
exceed in amount such limits. 

The exemption provision to which you refer is as follows: — 

Deposits in any savings bank chartered by this commonwealth or in 
the Massachusetts Hospital Life Insurance Company, or such of the de- 
posits in the savings department of any trust company so chartered as 
do not exceed in amount the limits imposed upon deposits in savings 
banks by section forty-six of chapter five hundred and ninety of the acts 
of the year nineteen hundred and eight, and acts in amendment thereof 
and in addition thereto. 

The words which require interpretation are "such of the de- 
posits in the savings department of any trust company . . . 
as do not exceed in amount the limits imposed upon deposits 
in savings banks." This language must be construed in con- 
nection with the statutes relating to the establishment and 
taxation of such departments of trust companies. 

The establishment of savings departments by trust com- 
panies was authorized and their conduct regulated by St. 1908, 
c, 520. No provision, however, was included for the imposition 
of an excise tax on such deposits nor for their exemption from 
taxation to the depositor. 

By St. 1909, c. 342, it was provided as follows: — 

Section 1, Every trust company having a savings department, as 
defined by chapter five hundred and twenty of the acts of the year nine- 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 93 

teen hundred and eight, shall pay to the treasurer and receiver general 
on account of its depositors in such department, an annual tax on the 
amount of its deposits therein, to be assessed and paid at the rate, in the 
manner, and at the times specified in chapter fourteen of the Revised 
Laws and acts in amendment thereof and in addition thereto, for the 
taxation of deposits in savings banks, except that in the year nineteen 
hundred and ten the rate of said tax shall be one eighth of one per cent, 
in the year nineteen hundred and eleven one quarter of one per cent, and 
in the year nineteen hundred and twelve three eighths of one per cent. 

Section 4. All deposits taxed under the provisions of section one of 
this act shall otherwise be exempt from taxation in any year in which 
said tax is paid. 

As no limit upon the amount of deposits in the savings de- 
partments of trust companies is imposed by law, the foregoing 
statute was apparently thought too favorable for such de- 
positors, and, accordingly, by St. 1911, c. 337, § 1, it was pro- 
vided as follows : — 

The tax impo'sed by section one of chapter three hundred and forty- 
two of the acts of the year nineteen hundred and nine shall apply only to 
such of the deposits therein designated as do not exceed in amount the 
limits imposed upon deposits in savings banks by section forty-six of 
chapter five hundred and ninety of the acts of the year nineteen hundred 
and eight and acts in amendment thereof and in addition thereto. 

It is to be noted that the provision of the income tax law 
under consideration adopts the essential language of the statute 
just quoted. In Old Colony Trust Co. v. Commonwealth, 220 
Mass. 409, 411, the court stated the effect of this last-men- 
tioned statute to be as follows : — 

The law as to the excise tax, which is the growth of many years, thus 
is made applicable only to that part of the deposits in the savings de- 
partments of trust companies which corresponds with savings bank de- 
posits in amounts from individual depositors. 

It is conceded that it has always been the practice of your 
department and of the trust companies maintaining savings 
departments to interpret this statute as subjecting to the excise 



94 



OPINIONS OF THE ATTORNEY-GENERAL. 

tax only the total amount of the accounts in which deposits do 
not exceed the savings bank limits. The opinion in the case 
referred to plainly indicates that that is the proper construction 
of the statute. It follows that before the enactment of the 
income tax law only such accounts as did not exceed the sav- 
ings bank limits were exempt from taxation to the depositors. 
In my opinion, it was plainly the purpose of the income tax 
law, in adopting the language of the statute of 1911, merely to 
adopt this exemption and not in any way to extend it. 

It is my opinion, therefore, that the income tax law should 
be construed as exempting from taxation only the income from 
such accounts in the savings departments of trust companies 
as do not exceed in the amount of their deposits the limits im- 
posed upon deposits in savings banks. 



Constitutional Convention — Oath of Office. 

Members of the Constitutional Convention are not required by law to take any 
oath of office. 

Governor. You rcqucst my opinion upon the question of whether the 

Junes. persons who have been elected delegates to the convention to 

revise, alter or amend the Constitution of Massachusetts, under 
the provisions of Gen. St. 1916, c. 98, are required to take any 
oath before entering into the performance of their duties as 
such delegates. 

Both the act providing for the convention and the statute 
law of the Commonwealth are silent upon this question, so that 
if required at all, it must be by virtue either of the Constitu- 
tion of the United States or of our Constitution. 

Article VI of the Constitution of the United States provides, 
in part, as follows: — 

The senators and representatives before mentioned, and the members 
of the several state legislatures, and all executive and judicial officers, 
both of the United States and of the several states, shall be bound by 
oath or affirmation, to support this constitution. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 95 

In my opinion, this article does not apply to the position of 
delegate to the convention in question, for the reason that the 
convention cannot be said to be a State Legislature, nor can 
the delegates elected thereto be said to be executive or judicial 
officers. 

Mass. Const., Pt. II, c. VI, art. I, provides — 

Every person chosen to either of the places or offices aforesaid [governor, 
lieutenant-governor, councillor, senator, or representative], as also any 
person appointed or commissioned to any judicial, executive, military, or 
other office under the government, shall, before he enters on the discharge 
of the business of his place or office, take and subscribe the following 
declaration, and oaths or affirmations, viz.: 

"I, A. B., do solemnly swear and affirm, that I will faithfully and 

impartially discharge and perform all the duties incumbent on me as 

, according to the best of my abilities and understanding, 

agreeably to the rules and regulations of the constitution and the laws of 

the commonwealth. So help me, God." 

It is obvious that this article does not apply to the position 
of delegate to the Constitutional Convention. 

The only other provision of our Constitution bearing upon 
this question is Article VI of the Amendments to the Consti- 
tution of Massachusetts, which provides, in part, as follows: — 

Instead of the oath of allegiance prescribed by the constitution, the 
following oath shall be taken and subscribed by every person chosen or 
appointed to any office, civil or military, under the government of this 
commonwealth, before he shall enter on the duties of his office, to wit: — 

"I, A. B., do solemnly swear, that I will bear true faith and allegiance 
to the Commonwealth of Massachusetts, and will support the constitu- 
tion thereof. So help me, God." 

It is to be noted that this article applies only to offices 
under the government of this Commonwealth. In an opinion 
rendered under date of Feb. 19, 1917, I advised the joint com- 
mittee of the Legislature on constitutional amendments that 
the position of delegate to this convention was not an office 
under the government of this Commonwealth, within the 



96 OPINIONS OF THE ATTORNEY-GENERAL. 

meaning of Article VIII of the Amendments of our Constitu- 
tion, for the reason that the word "office," as used in that 
article, referred to a position the incumbent of which exercises 
some power of the existing government and not to the posi- 
tion of a person selected to act in an advisory capacity in 
framing a scheme or change of government to be submitted to 
the people for adoption or rejection. The meaning of the 
phrase "office under the government of this commonwealth," 
as used in Articles VI and VIII of the Amendments, is un- 
doubtedly the same, as both these articles were drafted at the 
same time by the same convention. I am of the opinion, 
therefore, that the position of delegate to this convention is 
not an office under the government of this Commonwealth, 
within the meaning of Article VI of the Amendments to our 
Constitution. 

Accordingly, I am of the opinion that no oath or affirmation 
is required by law to be taken by delegates to the Constitu- 
tional Convention. I am fortified in this opinion by reason 
of the fact that it does not appear that the delegates to the 
convention of 1820 or the convention of 1853 took any oaths 
of office or otherwise, nor that it was contended that they 
were bound by law to do so. The convention may, of course, 
if it deems it fitting and appropriate to do so, prescribe oaths 
to be taken by its members, but this is a matter which, in my 
judgment, rests entirely within the discretion of the conven- 
tion itself. 



War Service — State Pay — Woiman Yeoman. 

A woman who enlists in the navy as a yeoman is not a soldier or sailor within the 
meaning of Gen. St. 1917, cc. 211 and 332. 

Trelwerand ^^u ask my opiuiou as to whether a woman who enlists in 
Genera"' the uavy as a yeoman is entitled to State pay under the pro- 

June6. visions of Gen. St. 1917, c. 211, as defined and extended by Gen. 

St. 1917, c. 332. 

As I understand it, the duties performed by a woman so 



I 



ATTORNEY-GENERAL. 97 

enlisting are the ordinary duties performed by a stenographer 
or a clerk. In my opinion, a woman who performs such 
duties is not a soldier or a sailor, within the meaning of these 
statutes. 



War Service, Scope of Statutes providing for State Pay 
TO Persons in. 

Gen. St. 1917, c. 211, providing for State pay of $10 a month to certain persons 
mustered into the military or naval service of the United States "as a part of 
the quota of this Commonwealth," applies only to non-commissioned officers, 
soldiers and sailors of the National Guard of the Commonwealth, including 
therein any naval militia maintained by the Commonwealth, who have been 
mustered into the Federal service. 

Gen. St. 1917, c. 332, extends the benefits conferred by chapter 211 to any non- 
commissioned officer or enlisted man who enlists or re-enlists as a resident of 
this Commonwealth in the regular or volunteer forces of the United States 
Army, Navy or Marine Corps subsequent to Feb. 3, 1917, and who has been 
for at least six months legally domiciled in the Commonwealth, although such 
enlistment or re-enlistment actually takes place in another State. 

You have asked my opinion as to several questions which Tothe 
have arisen in carrying out the provisions of Gen. St. 1917, c. Recet^r-^" 
211, as defined and extended by Gen. St. 1917, c. 332. mi'^' 

Section 1 of chapter 211 provides, in part, as follows: — 

There shall be allowed and paid out of the treasury of the common- 
wealth to each non-commissioned officer, soldier and sailor, who has 
been, or is hereafter, mustered into the mihtary or naval service of the 
United States as a part of the quota of this commonwealth for service in 
the United States or in any foreign country, the sum of ten dollars per 
month. . . . 

Section 1 of chapter 332, for the purpose of carrying out the 
foregoing provision, defines the war with the German Empire 
as having begun Feb. 3, 1917, and then provides as follows: — 

And any non-commissioned officer or enlisted man having a residence of 
at least six months within this state and serving to the credit of this 
commonwealth in the regular or volunteer forces of the United States 
army, navy or marine corps, whose federal service began subsequent to 
said February third, nineteen hundred and seventeen, is eUgible under the 
provisions of the above acts. 



98 OPINIONS OF THE ATTORNEY-GENERAL. 

The first question to be decided in determining the persons 
who are entitled to receive State pay under the provisions of 
these statutes is the proper interpretation of the words "as a 
part of the quota of this commonwealth," as they appear in 
chapter 211. 

The word "quota" implies allotment or assignment of a 
certain specified number of men which it is the duty of the 
Commonwealth to raise for the military or naval service of the 
United States. So far as I am aware, the only quota of this 
character in any manner as yet assigned to the Commonwealth 
by the Federal government grows out of the provision for the 
maintenance of a portion of the National Guard by the Com- 
monwealth. Section 62 of the Act of Congress approved June 
3, 1916, entitled "An Act for making further and more effec- 
tual provision for the national defense and for other purposes," 
provides that the number of enlisted men of the National 
Guard to be organized by each State within one year from the 
passage of that act in accordance with its provisions shall be 
in the proportion of 200 men for each senator and representa- 
tive in Congress from the State, and further provides that this 
number shall be increased not less than 50 per centum in each 
year thereafter until a total peace strength of not less than 
800 enlisted men for each senator and representative shall have 
been reached. 

Section 117 of this act, in authorizing the formation of a 
naval militia, contains the following proviso : — 

Provided, that each state, territory or district maintaining a naval 
militia, as herein provided, may be credited to the extent of the number 
thereof in the quota that would otherwise be required by section sixty- 
two of this act. 

This provision plainly seems to indicate that the word 
"quota" is there used to indicate the total number of enlisted 
men of the National Guard which each State is required to 
raise. 

In my opinion, therefore, the provision for State pay, con- 
tained in chapter 211, applies at present only to the non-com- 



HENRY C. ATT WILL, ATTORNEY-GENERAL. 99 

missioned officers, soldiers and sailors of the National Guard of 
the Commonwealth, including therein any naval militia main- 
tained by the Commonwealth, who have been mustered into the 
Federal service. It applies, however, to all such persons, without 
condition as to length of residence in the Commonwealth. 

Chapter 332 does two things: It first defines the date of the 
beginning of the war with the German Empire as February 3 
last; and, in the second place, it somewhat extends the right 
to receive State pay granted by chapter 211. It provides that, 
in addition to the persons entitled to State pay under chapter 
211, any non-commissioned officer or enlisted man having a 
residence of at least six months within this State and serving 
to the credit of the Commonwealth in the regular or volunteer 
forces of the United States Army, Navy or Marine Corps shall 
be entitled to that pay, provided his Federal service began sub- 
sequent to the beginning of the war, defined as being upon the 
3d of February. This provision, in my opinion, extended the 
right to receive State pay to all persons enlisting in the United 
States Army, Navy or Marine Corps subsequent to February 
3, provided such persons had at the time of their enlistment been 
residents of the Commonwealth for at least six months. By 
its terms, however, it does not apply to persons who had en- 
listed in the United States Army, Navy or Marine Corps prior 
to the 3d of February. 

In my opinion, the condition of residence for six months 
within the Commonwealth, applicable only to the additional 
persons entitled to State pay under chapter 332, must be in- 
terpreted as requiring that the applicant for such State pay 
shall have been legally domiciled within the Commonwealth for 
a period of at least six months before his enlistment. 

A question of some difficulty arises in determining when the 
Federal service of an applicant under chapter 332 began where 
his original enlistment was before the beginning of the war 
and has been followed by a re-enlistment after February 3 
and immediately at the expiration of his original term of serv- 
ice, so that in a sense his Federal service has been of con- 
tinuous duration. On the whole, however, in view of the 



100 OPINIONS OF THE ATTORNEY-GENERAL. 

obvious purpose of the statute to encourage enlistments of 
citizens of the Commonwealth, it is my opinion that the term 
"Federal service," as used in this statute, should refer only to 
service under the current enlistment of the applicant. 

Accordingly, in case of re-enlistment after the beginning of 
the war, the enlisted man, if then legally resident in the Com- 
monwealth for the required period, is entitled to State pay. 

The result of the foregoing is that all non-commissioned 
officers, soldiers and sailors who have been mustered into the 
military or naval service of the United States as a part of the 
National Guard of the Commonwealth, including in that 
description any naval militia of the Commonwealth, for service 
in connection with the war with the German Empire, are 
entitled to State pay from the time when they entered the 
service of the United States, without reference to their legal 
residence. In addition to the foregoing, any non-commissioned 
officer or enlisted man who enlists or re-enlists in the regular 
or volunteer forces of the United States Army, Navy or 
Marine Corps subsequent to Feb. 3, 1917, is entitled to such 
pay, provided that, at the time of the beginning of his Federal 
service by such enlistment or re-enlistment, he has been for at 
least six months legally domiciled in the Commonwealth and 
enlisted as a resident thereof. In my opinion, it is not a re- 
quirement that such enlistments or re-enlistments in the Army, 
Navy, or Marine Corps of the United States shall take place 
within the Commonwealth. It is only essential that the ap- 
plicant, at the time of such enlistment, shall be a legal resident 
of the Commonwealth. 

The determination of the question as to whether a given 
person is a legal resident of the Commonwealth may often be 
a matter of some difficulty, particularly in the case of re- 
enlistment of a man who has been for some time in the Federal 
service. If such a man originally enlisted from Massachusetts, 
was then legally domiciled here, and his immediate family or 
next of kin were then, and still are, domiciled here, it would 
seem that he had retained his legal residence in the Common- 
wealth. If, at the time of his original enlistment, he or his 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 101 

next of kin were domiciled elsewhere, but the latter have since 
acquired a legal residence here, and the applicant has in good 
faith treated this change of residence on the part of his family 
as a change of his own residence, it would seem that it might 
well be said in such a case that he had acquired a legal resi- 
dence here and was entitled to State pay under the provisions 
of chapter 332 in case of subsequent re-enlistment. Of course, 
the reverse of that proposition w^ould also be true, namely, 
that a change of domicile from Massachusetts to another 
State by the family of a man who had originally enlisted from 
Massachusetts should ordinarily be taken as meaning that he, 
too, has changed his residence to the other State. These 
various questions of legal residence, however, are all matters 
of fact which must be determined in the particular cases as 
they arise. 



Street Railways — Power of Company to sell its 
Railway. 

The sale by a street railway company of its electric cars to another street railway 
company, and of its trolley Hnes, poles, fixtures and land to a third company, 
is illegal and in violation of St. 1906, c. 463, Pt. Ill, § 51. 

You have communicated to me certain facts with reference to the Public 
to a particular street railway company, stating that it had mTsIion.^°'"' 
sold its electric cars to another street railway company, from June 6. 
which company it now leases them, and had sold its trolley 
lines, poles, fixtures and land to another corporation. I infer 
from your letter that you desire an opinion as to the legality 
of such transfers. 

Apparently, this is governed at present by the provisions of 
St. 1906, c. 463, Pt. Ill, § 51, which is as follows: — 

A street railway company shall not lease or contract for the operation 
of its railway for a period of more than ninety-nine years without the 
consent of the general court, nor, except as provided in the three following 
sections, shall it sell its railway unless authorized so to do by its charter 
or by special act of the general court. 



102 OPINIONS OF THE ATTORNEY-GENERAL. 

I understand that no authorization under the three sections 
following section 51 has been obtained, and that neither the 
charter nor any special act of the General Court authorizes 
the transfers mentioned. 

So far as this section deals with a sale, it was first enacted 
by St. 1864, c. 229, § 24, which was as follows: — 

No street railway corporation shaU seU or lease its road or property 
unless authorized so to do by its charter, or by special act of the legis- 
lature, . . . 

In 1871 this section was amended by omitting the words 
"or property." As so changed, the section in substance has 
remained until the present time, except for the substitution 
of the word "railway" for "road" in the statute of 1906. 

In the case of Richardson v. Sibley, 11 Allen, 65 (1865), the 
Supreme Judicial Court decided that this section prevented a 
general mortgage of all the property, real and personal, of a 
street railway corporation. The court said, at page 70: — 

But any alienation, either in fee, or for the period of its corporate 
existence, or for any less term, of substantially all its real and personal 
property, so as to disable it from carrying on the business which it had 
been chartered to do for the benefit of the public, is clearly within the 
terms and the meaning of this prohibition. 

In this opinion the court laid some stress upon the fact that 
the prohibition extended to a sale or lease of the "property" 
as well as the "road" of the street railway corporation, and 
pointed out that this should not be construed to prevent the 
disposal of unimportant portions of the property of the cor- 
poration, as "a few horses or cars, or worn-out rails, or other 
articles the sale or transfer of which would not impair its 
powers to carry on its business." 

Despite the fact that since 1871 the word "property" has 
not appeared in the statute, the decisions of the Supreme 
Judicial Court seem to imply that the rule as laid down in 
Richardson v. Sibley is still law. 

In demons Electrical Manfg. Co. v. Walton, 206 Mass. 215, 
the court says : — 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 103 

But a transfer of the property necessary to enable a railway to per- 
form its duties as a public carrier is as much forbidden by Pub. Sts. c. 
113, § 56 (now St. 1906, c. 463, Pt. Ill, § 51), as a transfer of its fran- 
chise. That was pointed out in the original case of Richardson v. Sihlerj, 
11 Allen, 65, 70, and reaffirmed and decided in demons Electrical ManuJ. 
Co. V. Walton, 173 Mass. 286. 

In French v. Jones, 191 Mass. 522, the court also said: — 

Our earliest statute upon this subject provided that "no street railway 
corporation shall sell or lease its road or property unless authorized so to 
do by its charter, or by special act of the Legislature." St. 1864, c. 229, 
§ 24. And "any alienation, either in fee, or for the period of its corporate 
existence, or for any less term, of substantially all its real and personal 
property, so as to disable it from carrying on the business which it had 
been chartered to do for the benefit of the pubUc, is clearly within the 
terras and meaning of this prohibition." Gray, J., in Richardson v. 
Sibley, ubi supra. And subject to certain limitations not material to the 
decision of this case, the same prohibition has since remained in force 
(Pub. Sts. c. 113, § 56; St. 1897, c. 269; R. L. c. 112, §§ 85 et seq.), except 
that in 1900 power was given to the receiver of a street railway company 
to make such a sale of its road, property, locations and franchises as is 
here in question. 

Apart from this statutory prohibition there are cases hold- 
ing that transfers of the corporate franchise or of the entire 
property of public service corporations without express au- 
thorization of the Legislature are ultra vires, because of the 
fact that thereby the public service corporation disables itself 
from the performance of the duties for which it was incor- 
porated. See Davis v. Old Colony R.R. Co., 131 Mass. 258, and 
cases cited; Braslin v. Somerville Horse R.R. Co., 145 Mass. 64. 

Accordingly, I am of the opinion that these transfers by the 
street railway company first referred to, taken together, inas- 
much as they include practically all of the property of that 
corporation, and thereby disable it from the performance of its 
public duties, are illegal and beyond the powers of that cor- 
poration effectually to complete. 

Apparently, action by your Commission in such a situation is 
still governed by the provisions of St. 1906, c. 463, Pt. I, § 8, 
which is as follows : • — 



104 OPINIONS OF THE ATTORNEY-GENERAL. 

If, in the judgment of the board, a railroad corporation or street railway 
company has violated a law, or neglects in any respect to comply with 
the terms of the act by which it was created or with the provisions of any 
law of this commonwealth, it shall give notice thereof in writing to such 
corporation or company; and thereafter, if such violation or neglect con- 
tinues, shall forthwith present the facts to the attorney-general for his 
action. 

It would seem that notice under this section should be given 
to the two corporations mentioned as grantees, inasmuch as they 
are participating in the illegal transaction. 



Intoxicating Liquors — Delivery by Railroad. 

Under R. L., c. 100, § 49, as amended by St. 1912, c. 201, a railroad company may 
lawfully deliver at its railroad station intoxicating liquors to the actual person 
shown upon the package as the purchaser or consignee. 

To the Public In consequence of a complaint relative to the practices of the 
^ifi'r" N^w York, New Haven & Hartford Railroad Company in con- 

june^. nection wath the delivery of shipments of intoxicating liquors in 

no-license towais, you have requested my opinion upon the fol- 
lowing question : — 

Do the provisions of R. L., c. 100, § 49, as amended by St. 1912, c. 201, 
providing that packages of liquors shipped to no-license towns be plainly 
marked with the name and address, by street and number if there be 
such, of the consignee, and that delivery to a person other than the owner 
or consignee, "or at any other place than is thereon marked," shall be 
deemed a sale, constitute a requirement to deliver only at the residence 
or place of business of the consignee, the address to be shown on the 
package by some form of description, using the street and number, if 
any, and by implication forbid the delivery of such a shipment to the 
consignee at the freight station of the railroad company? 

R. L., c. 100, § 49, as amended, is as follows: — 

Spirituous or intoxicating liquor which is to be transported for hire or 
reward for delivery in a city or town in which licenses of the first five 
classes are not granted, shall be delivered by the seller or consignor to a 
railroad corporation or steamboat corporation operating a regular line of 
steamships to Martha's Vineyard or Nantucket, or to a person or cor- 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 105 

poration regularly and lawfully conducting a general express business, 
and to no other person or corporation, in vessels or packages plainly and 
legibly marked in a conspicuous place on the outside with the name and 
address, by street and number, if there be such, of the seller or consignor, 
and of the purchaser or consignee, and also plainly and legibly marked on 
the same place or label as the addresses aforesaid, with the kind and 
amount of liquor therein contamed.. No person or corporation not regu- 
larly and lawfully conducting a general express business, except a railroad 
corporation or steamboat corporation operating a regular line of steam- 
ships to Martha's Vineyard or Nantucket, or a street railway corporation 
authorized to carry freight or express, shall receive such liquors for trans- 
portation for hire or reward for delivery in a city or town, in which licenses 
of the first five classes are not granted, nor transport or deliver such liquors 
in such cities or towns. Delivery of such liquors or any part thereof by a 
railroad corporation, or steamboat corporation or by a person or corpora- 
tion regularly and lawfully conducting a general express business to a 
person, other than the owner or consignee, whose name is marked by the 
seller or consignor on said vessels or packages, or at any other place than 
is thereon marked, shall be deemed to be a sale by any person making 
such delivery to such person in the place in which such delivery is made. 

It is the interpretation of the last sentence of this section 
which raises the question involved. The langugage here used 
is substantially the same as that found in the original enact- 
ment upon this subject, St. 1897, c. 271. 

Section 1 of that statute is as follows: — 

All spirituous or intoxicating liquors to be transported for delivery to 
or in a city or town where licenses of the first five classes have not been 
granted, when to be transported for hire or reward, shall be delivered by 
the seller or consignor to a railroad corporation or to a person or corpora- 
tion regularly and lawfully conducting a general express business, in 
vessels or packages plainly and legibly marked on the outside with the 
name and address, by street and number, if there be such, of the seller or 
consignor, and of the purchaser or consignee, and with the kind and 
amount of liquor therein contained. Delivery of such liquors or any part 
thereof, either by a railroad corporation or by a person or corporation 
regularly and lawfully conducting a general express business, or by any 
other person, to any person other than the owner or consignee whose 
name is marked by the seller or consignor on said vessels or packages, or 
at any other place than thereon marked, shall be deemed to be a sale by 
any person making such dehvery to such person in the place where such 
delivery is made. 



106 OPINIONS OF THE ATTORNEY-GENERAL. 

Section 2 required " every railroad corporation " or person 
conducting a general express business, receiving such liquors, 
"or actually delivering intoxicating liquors to any person or 
place in a city or town described in section one of this act," 
to keep a book showing the date of receipt, a correct transcript 
of the marks required, date of delivery and name of person to 
whom delivered, the latter signed by the person receiving. 

Read with strict literal accuracy, this last sentence of sec- 
tion 1 makes delivery either to any person other than the 
owner or consignee or at any place other than that marked on 
the package a sale by the person making such delivery to the 
person in the place where delivery is made. 

However, I am unable to believe that the Legislature in- 
tended that this act should be so construed. It would seem 
more reasonable to interpret the sentence to read, "delivery 
other than to the owner or consignee or at the place thereon 
marked shall be deemed to be a sale." 

It is a matter of common knowledge that railroad corpora- 
tions in this Commonwealth do not deliver freight from house 
to house or other than at their freight houses or established de- 
livery points. This fact was recognized by the Supreme Ju- 
dicial Court in the case of Commonwealth v. Mixer, 207 Mass. 
141, 147, per Rugg, J.: — 

Moreover, railroads and street railways, common carriers which do 
not deliver merchandise to houses or places of business, are exempted 
from the operation of the statute (St. 1906, c. 421). 

It is plain from an examination of St. 1897, c. 271, that it 
was not intended thereby to prohibit the transportation and 
delivery of intoxicating liquors in no-license cities or towns by 
railroad corporations. The first sentence of the section requires 
that sellers deliver the liquors "to a railroad corporation or to 
a person or corporation regularly and lawfully conducting a 
general express business." Obviously, if intoxicating liquors 
transported by a railroad corporation cannot lawfully come into 
possession of the consignee, the inclusion of the railroad cor- 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 107 

poration in the classes of persons to whom the seller might de- 
liver liquors for transportation is an absurdity. 

It may be suggested that under this 1897 statute a railroad 
corporation might transport liquors to its freight station and 
there turn them over to a person or corporation conducting a 
general express business, as a connecting carrier, and therefore 
the reasoning above is inconclusive; but it would seem that 
such delivery by the railroad corporation is as much within the 
literal prohibitions of this section as that involved in the present 
question, and it is also doubtful whether the carting of freight 
or packages from a freight station to a house in the same town 
is the transaction of an express business. See Commonwealth 
V. Peoples Express Co., 201 Mass. 564, 579. 

It is only "liquors to be transported for delivery" to which 
this statute applies. Wherever "delivery" is used in this act 
it seems to refer to the ultimate delivery to the consignee, and 
it is for that purpose that the seller is to turn over the liquors 
either to a railroad corporation or to a person or corporation 
regularly and lawfully conducting a general express business. 

It would seem that the clauses of this last sentence were 
used distributively, — delivery to the person addressed, apply- 
ing primarily to the class of carriers first mentioned, to wit, 
railroads; and delivery at the place 'designated, applying pri- 
marily to those mentioned next, to wit, the express companies. 
Such application of the words would be in accordance with the 
well-known practice of each class as to manner of delivery. 

Section 2 of said act, as shown by the quotation there- 
from, expressly recognizes that railroad corporations may law- 
fully perform this service, and further indicates quite clearly 
that it was not intended to require delivery to the person at 
the place marked on the package by the seller, but only to 
compel delivery either to the person or at the place shown. 

The language is, "Every railroad corporation or person . . . 
conducting a general express business, receiving . . . liquors for 
delivery, or actually delivering intoxicating liquors to any per- 
son or place in a city or town described in section one." 



108 OPINIONS OF THE ATTORNEY-GENERAL. 

In my opinion, this prohibition of the statute is not violated 
where delivery is made to the consignee in person or at the 
place marked upon the package as the address of the purchaser 
or consignee. 

Apparently, this was the substance of the charge of the pre- 
siding justice in the case of Commonioealth v. Cronan, 220 Mass. 
467. The language of the court is as follows: — 

The presiding judge in his instructions to the jury carefully and re- 
peatedly stated that the charge against the defendant was keeping in- 
toxicating liquors with intent to sell the same, and after referring to 
St. 1912, c. 201, and reading it to the jury, pointed out that before a 
delivery of intoxicating liquors could be deemed to be a sale the delivery 
must be of such liquors as are referred to in the statutes, and by a person 
doing a general express business, and that the liquors must have been 
delivered either to a person other than the owner or consignee whose name 
is marked on the vessel or package, or to some other place than is marked 
thereon. 

I am aware that there is some language in the opinion in the 
case of Rea v. Aldermen of Everett, 217 Mass. 427, 429, which, 
taken strictly, would imply an opposite construction, but it 
seems that the court was not dealing expressly with this point, 
and, in my opinion, did not intend to pass upon the question 
here involved. 

It has several times been said that — 

The act was manifestly intended to meet some difficulties which had 
been encountered bj'' the government in the prosecution of common 
carriers for illegal keeping of intoxicating liquors, and to make it more 
difficult for the guilty to escape detection when setting up the fraudu- 
lent defence that the liquors found in the possession of the carrier were 
for delivery by him as such to some person. Commonwealth v. Intoxi- 
cating Liquors, 172 Mass. 311, 315. 

Obviously, the interpretation outlined above in no way 
violates the purpose of the act as here defined, and the tracing 
of the liquors from the seller to the real purchaser is as com- 
plete where delivery is made to the party in person, designated 
as the purchaser, as where made at the address specified. 

Assuming that this is the correct interpretation of the act as 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 109 

passed in 1897, the later amendments to the particular section 
have not changed its effect in this respect. Other acts upon 
the same subject which have since been enacted can give little 
light as to the intention of an earlier Legislature, and none of 
them seem at all inconsistent with this construction. 

Accordingly, though with some hesitation, I have come to 
the opinion that delivery by a railroad corporation at its freight 
station to the actual person shown upon the package as the 
purchaser or consignee of the intoxicating liquors is not illegal 
by virtue of the provisions of R. L., c. 100, § 49, as amended 
by St. 1912, c. 201. 



Motor Vehicles used by the Federal or the State Gov- 
ernment FOR Military Purposes — Registration of — 
Licensing of Operators of. 

Motor vehicles which are loaned to the Federal or the State Government for military- 
purposes are not required to be registered, nor the operators thereof to be li- 
censed, while such vehicles are actually being used for military purposes and 
operated by persons in the military service of the Federal or State government 
in the performance of their duty. 

You request my opinion upon the question of " whether motor To the High- 
vehicles which are in the control of, but not owned by, the s'on-^ 
United States or the Commonwealth must be registered, not- Junew. 
withstanding the fact that they are to be used solely for military 
service; and whether the operators of such vehicles must be 
licensed." 

Under date of April 24, 1917, I advised your Commission 
that motor vehicles owned by the United States or by the 
Commonwealth are not required by the laws of this Common- 
wealth to be registered while being used for military purposes, 
nor the operators thereof to be licensed. 

In my opinion, the same answer must be given with refer- 
ence to cases where motor vehicles are loaned to the Federal 
or the State government for military purposes, the title re- 
maining in the individual owners, namely, that while such 
vehicles are actually being used for military purposes and 



110 OPINIONS OF THE ATTORNEY-GENERAL. 

operated by persons in the military service of the Federal or 
the State government in the performance of their duty, they 
are not required to be registered, nor such operators to be 
licensed. 



Employees of Commonwealth — Compensation of — Tem- 
porary Increase — Watchmen at State Prison. 

Watchmen at the State Prison who have received an increase in salary under 
R. L., c. 223, § 19, as last amended by St. 1914, c. 554, since July 1, 1916, 
are not entitled to receive the additional compensation provided by St. 1917, 
c. 323, unless they choose to waive such increase; nor will any of such watch- 
men be entitled to any increase in pay hereafter under R. L., c. 223, § 19, 
as amended by St. 1914, c. 554, while they continue to receive additional 
compensation under Gen. St. 1917, c. 323. 

Priswf.^*'^*^ You request my opinion upon whether any or all of the 

June 19. watchmen in the State Prison are entitled to the temporary 

increases of salary provided for by Gen. St. 1917, c. 323. 

Sections 1 and 2 of said chapter provide for a temporary 
increase in salary of 20 per cent, but not to exceed $100 per 
year, for all persons who have been regularly in the employ of 
the Commonwealth from the first day of July, 1916, based 
upon the salary received on that date. Section 4 of this act 
is as follows: — 

This act shall not be construed as in any way repealing or abridging 
any act providing for the increase of compensation of any employees of 
the commonwealth, including employees whose salaries, under existing 
provisions of law, are made to increase automatically, by graduated in- 
stalments, from year to year, until the maximum therein provided has 
been reached, but employees who accept additional compensation under 
the provisions of this act shall not, durmg such time as they shall continue 
to receive the additional compensation herein provided for, be entitled to 
the benefit of any increase in compensation which they may have received 
since the first day of July in the year nineteen hundred and sixteen, or to 
which they may hereafter become entitled. But any such employee may 
at any time elect to receive any increase in compensation to which he 
might otherwise be entitled in lieu of the additional compensation herebj^ 
provided for. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. Ill 

R. L., c. 223, § 19, as last amended by St. 1914, c. 554, 
provides that watchmen in the State Prison who have been in 
said service for less than one. year shall receive an annual sal- 
ary of $800; watchmen who have been in said service for more 
than one year and less than three years shall receive an annual 
salary of $1,000; watchmen who have been in said service for 
three years and less than five years shall receive an annual 
salary of $1,200; and watchmen who have been in said service 
for five or more years shall receive an annual salary of $1,400. 

In my opinion, any of the watchmen at the State Prison 
who have received an increase in salary since the first day of 
July, 1916, are not entitled to the benefit of the additional 
compensation provided for by Gen. St. 1917, c. 323, unless, 
of course, they choose to waive such increase; nor will any of 
the watchmen be entitled to any increase in pay hereafter 
under the provisions of St. 1914, c. 554, while they continlie to 
receive the additional compensation provided for by the act 
of 1917. For example, a watchman who had been in said serv- 
ice more than five years on July 1, 1916, and who was, there- 
fore, receiving a salary of $1,400 a year, would be entitled to 
an increase of $100; but a watchman who had completed his 
five-year term of service since July 1, 1916, and whose salary, 
therefore, was increased from $1,200 to $1,400 since that date, 
would not, as a practical matter, be entitled to receive the 
additional compensation provided for by the act of the present 
year, since, in order to be entitled thereto, it would be neces- 
sary for him to waive the increase in salary of $200, which, 
obviously, he would not elect to do. 



112 OPINIONS OF THE ATTORNEY-GENERAL. 



Employees of Commonwealth — Compensation of — 
Temporary Increase. 

The temporary increase in the compensation of certain employees of the Common- 
wealth, provided for by Gen. St. 1917, c. 323, is to be apportioned to each of 
the monthly payments of salary, and is not to be paid in a lump sum. 

The maximum increase in salary of an employee coming within Gen. St. 1917,. 
c. 323, § 3, is one-half of the maximum increase of $100 provided for by section 
2 of that act. 

An employee of the Commonwealth who comes within the provisions of St. 1914, 
c. 605, by accepting the temporary increase provided by Gen. St. 1917, c. 323, 
waives the benefit of any increase in salary received under said chapter 605 
after July 1, 1916, so long as such employee continues to receive the temporary 
increase under said chapter 323. But upon the relinquishment by such em- 
ployee of the temporary increase, he becomes entitled to the increase in com- 
pensation to which he would otherwise be entitled under St. 1914, c. 605. 



To the Auditor. 

1917 
June 20. 



You have requested my opinion as to certain questions 
which have arisen as to the proper interpretation of Gen. St. 
1917, c. 32.3, entitled "An Act to authorize temporary increase 
in the compensation of certain employees of the Common- 
wealth." 

In my opinion, the increase in compensation provided for by 
section 2 of that statute is to be regarded as an addition to 
the regular salary of the employees entitled to it. Thus, it is 
to be apportioned to each of the monthly payments of salary, 
and is not to be paid in a lump sum. 

Section 3 provides, in part, as follows: — 

All persons included in the provisions of section one who are receiving 
from the commonwealth as part of their compensation maintenance in 
full or in part, provided that the amount of compensation which they re- 
ceive in full for all services in addition to such maintenance does not 
exceed twelve hundred dollars a year, shall, for the period specified in 
said section, receive as additional compensation a sum equal to one half 
the additional compensation provided for by section two. . . . 

In my opinion, the maximum increase of an employee com- 
ing within the terms of this section is to be one-half of the 
maximum increase of $100 provided for by section 2. It is, 
therefore, to be $50. 

Section 4 is as follows : — 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 113 

This act shall not be construed as in any way repealing or abridging 
any act providing for the increase of compensation of any employees of 
the commonwealth, including employees whose salaries, under existing 
provisions of law, are made to increase automatically, by graduated in- 
stallments, from year to year, until the maximum therein provided has 
been reached, but employees who accept additional compensation under 
the provisions of this act shall not, during such time as they shall con- 
tinue to receive the additional compensation herein provided for, be en- 
titled to the benefit of any increase in compensation which they may 
have received since the first day of July in the year nineteen hundred and 
sixteen, or to which they may hereafter become entitled. But any such 
employee may at any time elect to receive any increase in compensation 
to which he might otherwise be entitled in lieu of the additional compen- 
sation hereby provided for. 

It is my opinion that under the provisions of this section 
any employee receiving compensation under St. 1914, c. 605, 
who accepts the temporary increase provided by chapter 323, 
is required thereafter to waive the benefit of any increases of 
salary received under the provisions of chapter 605 after 
July 1, 1916, so long as such person continues to receive such 
temporary increase. In my opinion, however, the last sentence 
of section 4 of said chapter 323 must be interpreted as author- 
izing any employee who comes within the provisions of St. 
1914, c. 605, and has accepted the temporary increase, to 
relinquish that increase and to receive the compensation to 
which he would at that time be entitled under chapter 605 
if he had not accepted the temporary increase. Any other 
interpretation of, this last-mentioned provision would result in 
penalizing an employee for accepting the temporary increase. 

It is to be noted, however, that increases under the pro- 
visions of St. 1914, c. 605, are not strictly automatic. By 
section 4 of said chapter 605 they are made dependent upon 
a certificate by the head of the department to the Auditor 
that the conduct of the clerk or stenographer has been in all 
respects satisfactory and that he or she is entitled to the in- 
crease. It is not entirely clear that the head of a department 
is authorized to issue such certificates for more than one 
annual increase of $50 at one time. Accordingly, if the head of 



114 OPINIONS OF THE ATTORNEY-GENERAL. 

a department desires that an employee coming within the pro- 
visions of this statute should continue to have the benefit of 
the annual increases provided by it, he should annually certify 
under the provisions of section 4 of said chapter 605 that such 
employee is entitled to this increase, even though in fact the 
employee is not accepting the increase but is claiming the tem- 
porary compensation provided by Gen. St. 1917, c. 323. Such 
a course is desirable in order that when the employee desires 
to give up the temporary increase and return to the system 
of compensation provided by St. 1914, c. 605, there may be 
no question as to his status under that statute at that time. 



War Service — State Pay — Aviation Corps — Medical 
Department. 

Persons having a residence of at least six months within the Commonwealth, who, 
subsequent to Feb. 3, 1917, have enlisted in the aviation section of the signal 
corps of the United States Army or in the medical department of the army, 
whether as members of the regular force or of the enlisted reserve corps, and 
who have been called into active service and assigned to that department, are 
eligible to the State pay provided by Gen. St. 1917, cc. 211 and 332. 

Treasurer and ^^^ rcqucst my opiuiou as to whether citizens of Massachu- 
Generll!^" sctts w^ho cnlist in the aviation corps or in base hospital units 

juni22. are entitled to receive payments under Gen. St. 1917, cc. 211 

and 332. 

As I understand it, neither of the units to which you refer 
is connected with the National Guard of the Commonwealth, 
and therefore these men do not form a part of the quota of 
the Commonwealth, within the meaning of chapter 211. In 
order to bring them within the additional rights created by 
chapter 332, it must appear that the units with which they are 
connected are a part of the regular or volunteer forces of the 
United States Army, Navy or Marine Corps as recognized by 
the Federal statutes. 

The act of Congress approved June 3, 1916, regulating the 
organization of the army of the United States, provides, in 



HENRY C. ATT WILL, ATTORNEY-GENERAL. 115 

section 13, for an aviation section of the signal corps. Con- 
nected with this section are certain enlisted men, including 
non-commissioned officers. These men, in my opinion, if 
otherwise entitled, come within the provisions of chapter 332. 

Section 10 of the Federal statute to which I have referred 
provides for the organization of the medical department of 
the regular army, and establishes a certain enlisted force. In 
my opinion, the members of this force, if otherwise entitled, 
come within the provisions of chapter 332. 

This Federal statute also provides for the enlisted reserve 
corps as one of the sections of the army of the United States. 
This corps is established, as provided in section 55, "for the 
purpose of securing an additional reserve of enlisted men for 
military service with the Engineer, Signal, Quartermaster 
Corps, Ordnance and Medical Departments, of the Regular 
Army." The men enlisted in this corps, when called into 
active service, have all the authority, rights and privileges of 
men of like grades in the regular army; they wear the same 
uniform, perform the same duties, and receive the same pay 
as such grades. The President is authorized to assign them 
"as reserves to particular organizations of the Regular Army." 
In my opinion, the members of this enlisted reserve corps, 
when called into active service and duly assigned to the 
medical department of the regular army, or to any other 
particular organization of that army, if otherwise entitled, 
come within the provisions of chapter 332. Thus, citizens 
serving in the base hospital units to which you refer, if mem- 
bers of the enlisted force of the medical department of the 
regular army or members of the enlisted reserve corps called 
into active service and duly assigned to that department, are 
entitled to receive the payments provided for by Gen. St., cc. 
211 and 332. 



116 OPINIONS OF THE ATTORNEY-GENERAL. 



Appointment to fill an Anticipated Vacancy in Public 
Office, Validity of. 

A valid appointment may be made to fill an office created by a statute after the 
passage of that statute and before it goes into effect. 



1917 
June 26. 



Governor. You Tcqucst iDv Opinion in relation to the appointment of 

the two additional members of the Industrial Accident Board 
authorized by Gen. St. 1917, c. 297, entitled "An Act relative 
to the settlement of claims under the workmen's compensation 
act." The question submitted is: Has the Governor authority 
to name the two additional members of the Industrial Accident 
Board, as authorized by this act, before the date that the act 
goes into full effect? 

R. L., c. 8, § 1, provides: — 

A statute shall take effect throughout the commonwealth, unless other- 
wise expressly provided therein, on the thirtieth day next after the day 
on which it is approved by the governor, or is otherwise passed and ap- 
proved, or has the force of a law, conformably to the constitution. 

I think it clear that by reason of this statute the act did 
not go into full effect until the thirtieth day next after May 
24, 1917, the date when it was approved by the Governor. 

Mechem's Public Offices and Officers, § 133, lays down the 
following proposition : — 

A prospective appointment to fill an anticipated vacancy in a public 
office made by the person or body which, as then constituted, is em- 
powered to fill the vacancy when it arises, is, in the absence of express 
law forbidding it, a legal appointment and vests title to the office m the 
appointee. 

See also Whitiiey v. Van Buskirk, 40 N. J. L. 463. 

I have been unable to find any authority to the contrary. 
It would seem as if the principle laid down in Mechem's Public 
Offices and Officers would apply in the present instance, al- 
though I have been unable to find any case in which this pre- 
cise question has arisen. The reason for this doctrine is to 
prevent hiatuses occurring. If the appointment could not be 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 117 

thus made, many instances might occur where there was no 
official quahfied to act under the law during the period re- 
quired to appoint, and secure the confirmation of the appoint- 
ment, and the qualification of the official. I think it can be 
strongly argued that one of the purposes of R. L., c. 8, § 1, 
is to make provision so that the machinery required by a 
statute may be prepared, in order that the act may go into 
full operation upon its taking effect. 

Accordingly, it is my opinion that appointments made 
between May 24, 1917, aind the time when the act went into 
effect are lawful. 



Banks and Banking — State Banks, Repeal of Law au- 
thorizing Formation of. 

R. L., c. 115, authorizing the formation of State banks, was not repealed by St. 
1908, c. 590, and acts in amendment thereof, and an incorporation may now 
be effected under R. L., c. 115. 

You have requested my opinion as to whether you should Goveraoi 
proceed under the provisions of R. L., c. 115, § 3, to appoint juni^29. 
commissioners to examine and count the money paid in upon ~ ' 
the capital stock of a new banking corporation organized under 
that chapter, which relates to the formation and regulation of 
State banks. The application in the present instance is made 
by a proposed corporation having the name "The State Bank." 

Although as a practical matter this chapter has been inop- 
erative for many years, it has remained upon the statute books 
without express repeal and without direct amendment for a 
long period of time. 

The Commissioners for Consolidating and Arranging the 
Public Statutes in their report annexed to this chapter the fol- 
lowing note : — 

This chapter is printed without substantial change. It has not been 
amended since the Pubhc Statutes of 1882, and nearly all its provisions 
were enacted prior to the General Statutes of 1860. After the passage of 
Sts. 1863, c. 244, 1864, c. 190, and acts in addition thereto relating to 
State banks surrendering their charters upon becoming banking associa- 



118 OPINIONS OF THE ATTORNEY-GENERAL. 

tions under the laws of the United States, all the State banks in this Com- 
monwealth surrendered their State charters. For many years no State 
bank has existed under this chapter, and until there is a change in the 
United States banking laws no such bank will be established. IMany of 
the provisions of the chapter are antiquated and not adapted to present 
modes of business, and the chapter requires revision by a legislative com- 
mittee on banks and banking before being enforced. If the chapter is re- 
pealed, some provision may be necessary to authorize the continuance of 
business in this Commonwealth of foreign bankmg corporations. See 
opinion of the Attornej^-General March 30, 1899, addressed to the Com- 
missioner of Corporations. See also note, c. 118, § 27. 

The implied recommendation of repeal thereby made was 
not accepted. The Bank Commissioner in his last report to 
the Legislature also advised that this chapter be repealed (Pub. 
Doc. No. 8, p. xv). Such action, however, was not taken. 

The doubt as to your duty to make the appointment re- 
quested arises by reason of St. 1908, c. 590, § 16, as amended 
by St. 1909, c. 491, § 4, and by St. 1914, c. 610, which is as 
follows : — 

No corporation, either domestic or foreign, and no person, partnership 
or association except savings banks and trust companies incorporated 
under the laws of this commonwealth, or such foreign banking corpora- 
tions as were doing business in this commonwealth and were subject to 
examination or supervision of the commissioner on June first, nineteen 
hundred and six, shall hereafter make use of any sign at the place where 
its business is transacted having thereon any name, or other word or 
words, indicating that such place or office is the place or office of a savings 
bank. Nor shall 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 believe, or as in the opinion of the commissioner might 
lead the public to believe, that its business is that of a savings bank. Nor 
shall any person, partnership, corporation or association except co-opera- 
tive banks incorporated under the laws of this commonwealth and corpo- 
rations described in the first sentence of this section hereafter transact 
business under any name or title which contains the words "bank" or 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 119 

"banking," as descriptive of said business, or, if he or it does a banking 
business or makes a business of receiving money on deposit, under any 
name or title which contains the word "trust," as descriptive of said 
business. 

The last sentence of this section, down to the words "or, if 
he or it does a banking business or makes a business of receiv- 
ing money on deposit, under any name or title which contains 
the word 'trust,' as descriptive of said business," was added 
by the 1909 amendment, and the words quoted immediately 
above were added by the amendment of 1914. 

While it m.ay be dolibted whether the Legislature, in enact- 
ing the amendment of 1909, had in mind the possibility of the 
formation of corporations under R. L., c. 115, the language 
used therein is broad enough in its terms to exclude all cor- 
porations, other than those expressly excepted, from the trans- 
action of business "under any name or title which contains 
the word 'bank.'" The fact that in the sweeping language of 
this amendment there was included an exception of "co-oper- 
ative banks" would ordinarily raise an implication that co- 
operative banks w^ould have been included in the general lan- 
guage but for their exception, and, accordingly, that the Legis- 
lature intended a prohibition as broad as the language in fact 
used. 

But this rule must not be carried too far. Such clauses are often intro- 
duced from excessive caution and for the purpose of preventing a possible 
misinterpretation of the act by including therein that which was not in- 
tended. The rule is, therefore, not one of universal obligation, and must 
yield to the cardinal rule which requires a court to give effect to the 
general intent if that can be discovered within the four corners of the act. 
If such general intention would be defeated by construing the act as em- 
bracing everything of the same general description as those particularly 
excepted therefrom, an arbitrarj^ application of the rule is not admissible. 

Per Lurton, C.J., in Baggaley v. Pittsburg & Lake Superior 
Iron Co., 90 Fed. Rep. 636, at page 638. See also Arrowsmith 
V. Dickenson, 20 Q. B. D. 252, 256; Tinkham v. Tapscott, 17 
N. Y. 141. 



120 OPINIONS OF THE ATTORNEY-GENERAL. 

What indications of the general legislative intent are dis- 
closed by these statutes? Section 16 of St. 1908, c. 590, is 
entitled "Unauthorized Banking Prohibited." The amenda- 
tory act, St. 1909, c. 491, is entitled "An Act relative to sav- 
ings banks and trust companies," while section 4 thereof, which 
adds to said section 16 the words which cause the present dif- 
ficulty, leaves the title of section 16 substantially as before, — 
"Unauthorized banking prohibited, etc." 

These titles expressly show an intent to prohibit "unauthor- 
ized" banking rather than to prohibit the transaction of busi- 
ness by special corporations expressly authorized to engage in 
banking. 

R. L., c. 115, § 4, prescribes the name of corporations created 
under that chapter to be in the following form : " The President, 
Directors, and Company of the Bank (the name of the 

bank)." 

It is to be observed that the 1909 amendment was passed 
apparently as a result of the recommendation of the Bank Com- 
missioner, found on page xxx of his report for the year 1908: — 

Section 16 might well be broadened to prevent the use of the words 
"bank," "banking" and "trust" in connection with the word "com- 
pany" by organizations not incorporated under the banking or trust 
.company laws of this Commonwealth. 

The bill which ultimately became St. 1909, c. 491, was re- 
ported to the Legislature by the committee to which was 
referred this portion of the report of the Bank Commissioner. 

This fact also would raise some doubt as to whether the 
Legislature intended to enact legislation so much more sweep- 
ing in its effect than that recommended by the Bank Commis- 
sioner, as would be the case if the statute were interpreted 
as forbidding the transaction of business by a corporation 
formed under the provisions of the statutes of the Com- 
monwealth specially designed for the formation of banking 
corporations, and expressly requiring the use of the word 
"bank" as a part of the name thereof. 

Unless there is implied some exception to the language used 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 121 

in this amendment, the statute, if constitutional, would pro- 
hibit the transaction of business by national banking associa- 
tions doing business under the sanction and authority of 
Federal laws. In my opinion, the Legislature could not have 
intended such a result, and the section must be construed as 
not including such corporations within its prohibitions. Simi- 
larly, it seems unlikely that the Legislature intended to affect 
domestic corporations required by Massachusetts statutes to 
have the word "bank" as a part of their names. 

It is true that State banks would fall within the literal 
terms of the prohibition, but in cases where it appears that 
a literal interpretation would lead to results absurd or con- 
trary to the supposed intention of the Legislature, the Supreme 
Judicial Court frequently has interpreted such statutes as sub- 
ject to an implied exception. 

For example, the statute making a mother and grandmother 
bound to support a pauper was held not to apply to a married 
woman, but, it was said, "must be read as if the description 
were 'mother and grandmother not being under coverture.'" 
Gleason v. Boston, 144 Mass. 25, 28. 

A statute placing a heavier penalty upon larceny "by 
stealing in any building" than upon ordinary larceny was 
held not to apply to larceny by the owner of the building or 
his wife. CommoniDealth v. Hartnett, 3 Gray, 150. 

The United States statute limiting the individual liability 
"of a shipowner" was held not to apply to the owner of a 
fishing vessel, especially in view of the title to the act. Simy- 
son V. Story, 145 Mass. 497; see also Ayers v. Knox, 7 Mass. 
309. 

In Inhabitants of Somerset v. Inhabitants of Dighton, 12 
Mass. 383, at page 384, it is said : — • 

But, in the exposition of statutes such a construction should be given 
as will best effectuate the intention of the makers. In some cases, the 
letter of a statute may be restrained by an equitable construction; in 
others, enlarged; and, in others, the construction may be even contrary 
to the letter. For a case may be within the letter, and not within the 
meaning of a statute. 



122 OPINIONS OF THE ATTORNEY-GENERAL. 

See also, Staniels v. Raymond, 4 Cush. 314, 316; Common- 
wealth V. Kimball, 24 Pick. 366, 370; CommomveaUh v. In- 
habitants of Dracut, 8 Gray, 455, 457. 

It would seem, then, that the Legislature could not have 
intended to prohibit the transaction of business under a name 
which included the word "bank" when the use of such name 
was expressly authorized by law in a chapter authorizing the 
creation of State banks, unless it had in mind the repeal of 
the earlier chapter. That the Legislature intended such a 
sweeping effect seems to me improbable. In order to reach 
the conclusion that new corporations cannot now be formed 
under this chapter, it would be necessary to hold that it had 
been repealed by implication. Such repeals are not to be 
favored. Snell v. Bridgewater Cotton Gin Mfg. Co., 24 Pick. 
296; Haynes v. Jenks, 2 Pick. 172, 176. 

If the Legislature intended to repeal an entire chapter of 
the Revised Laws it is fair to assume that it would be done by 
express enactment rather than by implication. 

Accordingly, although with some hesitation because of the 
arguments which can be advanced on either side of the ques- 
tion, I have come to the conclusion that an incorporation may 
be legally effected under the provisions of R. L., c. 115, and 
that you are warranted in proceeding to appoint commissioners 
under section 3 thereof. 



Taxation — Failure to bring in List of Taxable Personal 
Estate — Amount of Assessment — x^batement. 

A person who fails to bring in a list of his taxable personal estate, as required by 
sections 41 to 49, inclusive, of St. 1909, c. 490, Pt. I, must in the first instance 
be assessed by local assessors for an amount of personal estate not less than that 
for which he was assessed in 1916, and then he has all the remedies for abate- 
ment provided by sections 72 to 84 of that statute, subject to any conditions 
and penalties therein contained. 

CommisTfo'ner. You rcqucst my opiuion as to whether the provisions of the 
juiyV statutes with reference to the abatement of taxes assessed upon 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 123 

personal property apply to assessments made under the pro- 
visions of Gen. St. 1916, c. 269, § 22. 

That section provides, in part, as follows: — 

Any taxpayer who in the year nineteen hundred and seventeen fails to 
bring in a list of taxable personal estate, as provided in sections fortj^-one 
to forty-nine, inclusive, of Part I of chapter four hundred and ninety of 
the acts of the j^ear nineteen himdred and nine, and acts in amendment 
thereof and in addition thereto, shall be assessed in that year for an 
amount of personal estate not less than that for which he was assessed 
and taxed in the year nineteen hundred and sixteen. 

This section makes no reference whatever to abatement 
proceedings. 

St. 1909, c. 490, Pt. I, § 73, provides, in part, as follows: — 

A person shall not have an abatement, except as otherwise provided, 
unless he has brouglit in to the assessors the list of his estate as required 
by section forty-one. ... If such hst is not filed within the time speci- 
fied in the notice required by section forty-one, no part of the tax assessed 
upon the personal estate shall be abated unless the applicant shows to 
the assessors a reasonable excuse for the delay or unless such tax exceeds 
by more than fifty per cent the amount which would have been assessed 
upon such estate if the hst had been seasonably brought in, and in such 
case only the excess over such fifty per cent shall be abated. . . . 

You refer to section 22 of the income tax law as a penalty 
section. I cannot agree that it should be so construed. It 
does not purport to impose a penalty upon a taxpayer who 
fails to bring in a list, in addition to that imposed by section 
73. It is applicable only in the year 1917, and it is most 
unusual to establish a penalty for one year only. 

In my opinion, section 22 of the income tax law should be 
construed merely as a direction to the assessors as to the man- 
ner in which in the year 1917 they should perform the duty 
imposed upon them by St. 1909, c. 490, Pt. I, § 47, which pro- 
vides that "they shall ascertain as nearly as possible the par- 
ticulars of the personal estate ... of any person, firm or cor- 
poration which has not brought in such list, and shall estimate 
its just value, according to their best information and belief." 



124 OPINIONS OF THE ATTORNEY-GENERAL. 

As a result of the income tax law, hereafter local assessors are 
to assess only tangible personal property. Their previous as- 
sessments of personal property did not ordinarily give any in- 
dication of the value of the tangible personal property owned 
by the various taxpayers. It was necessary for the proper 
administration of the new law that there should be some def- 
inite starting point fixed in the assessment of local taxes for 
the first year of the operation of the new law. The Legislature, 
by enacting section 22, chose to fix as that starting point for 
all cases where no return of taxable personal property was filed 
the assessed valuation of the personal property for the pre- 
ceding year, and, accordingly, by this section the assessors were 
directed to make their assessments for 1917 upon this basis. 
The fact that the only penalty referred to in this section is one 
to be imposed upon assessors who do not carry out its pro- 
visions, plainly indicates that the section is to be construed 
solely as a direction to the assessors, and not as imposing a 
penalty upon taxpayers in one year only. 

The result is that, in my opinion, a person who fails to bring 
in a list of his taxable personal estate, as provided in sections 
41 to 49, inclusive, of Part I of the tax act, must in the first 
instance be assessed by local assessors for an amount of per- 
sonal estate not less than that for which he was assessed and 
taxed in 1916, and that he then has all the remedies for abate- 
ment provided by sections 72 to 84 of Part I of said act, sub- 
ject, of course, to any conditions and penalties therein 
contained. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 125 



Settlement — Illegitimate Children — Inmates of Boston 
State Hospital or Massachusetts School for the 
Feeble-minded. 

An illegitimate child whose mother died prior to the passage of St. 1911, c. 669, re- 
tains the settlement, if any, which it had under the law as it previously stood. 

St. 1911, c. 669, § 2, applies to persons admitted to the Psychopathic Department 
of the Boston State Hospital or the school department of the Massachusetts 
School for the Feeble-minded. 

You have requested my opinion upon certain questions aris- To the Board 
ing under St. 1911, c. 669, as follows:— ^P^ ^ 

° ' ' July 9. 



1. Can an illegitimate child, who was a minor when this law was 
follow and have the settlement of the mother, in accordance with the 
provisions of the fourth paragraph of section 1, if the mother dies prior 
to the passage of the act? 

The clause referred to is as follows: — 

Fourth, Illegitimate children shall follow and have the settlemen of 
their mother if she has any within the commonwealth. 

The law as it previously stood provided (R. L., c. 80, 
§l,cl.3d):- 

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

It is a general presumption in the construction of statutes 
that their operation is to be prospective unless the contrary 
appears. Commonwealth v. Sudbury, 106 Mass. 268. 

While the Legislature has the power arbitrarily to create a 
settlement or transfer it from one municipality to another, the 
intention to cause such a result must clearly appear if it is to 
be effected. 

I do not find any language in this statute which would seem 
to rebut the general presumption that it is prospective in its 
operation. 

Under the facts stated the mother of the child died prior to 
the enactment; consequently, it cannot strictly be said that 
at the date of its passage "she has any" settlement within the 
Commonwealth. 



126 OPINIONS OF THE ATTORNEY-GENERAL. 

Accordingly, I am of the opinion that an illegitimate child 
whose mother died prior to the passage of St. 1911, c. 669, 
retains the settlement, if any, which it had under the law as it 
previously stood. 

2. Does section 2 apply to persons admitted to the Psychopathic De- 
partment of the Boston State Hospital or to the school department of the 
Massachusetts School for the Feeble-minded? 

Section 2 is as follows: — 

No person shall acquire a settlement, or be in process of acquiring a 
settlement, while receiving relief as a pauper, unless, within two years 
after the time of receiving such relief, he tenders reimbursement of the 
cost thereof to the commonwealth, or to the city or town furnishing the 
same. 

This is but a slight modification of the law as laid down by 

the court prior to the original passage of this statute in 1874 

{Charlestoivn v. Groveland, 15 Gray, 15), the general principle 

. being that persons supported at public expense are not capable 

of acquiring a settlement. 

As to the Psychopathic Department of the Boston State 
Hospital, I am not aware of any statute which puts it in any 
different class from the other hospitals for the insane. Persons 
cared for therein are supported at the expense of the Com- 
monwealth. 

As to the school department of the Massachusetts School for 
the Feeble-minded there may originally have been some dis- 
tinction. In its inception this institution was a corporation 
supported by private charity. Gradually, however, control has 
been taken over by the State, so that it appears from the sixty- 
ninth annual report of the trustees that all of the regular main- 
tenance expenses are borne by the State. Apparently, by Gen. 
St. 1917, c. 223, the right of the trustees previously existing to 
admit pupils gratuitously is practically abolished, while by 
chapter 133 of the General Acts of the same year provision is 
made for collection of charges for the support of all inmates in 
the same manner as provided for inmates of other institutions 
under the supervision of the Commission on Mental Diseases. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 127 

Accordingly, at the present time it seems that all inmates, 
charges for whose support are not paid by themselves or their 
friends or relatives, are in fact supported at public expense as 
truly as are any other persons who are prevented from acquir- 
ing a settlement thereby. 

I am of the opinion, therefore, that section 2 of St. 1911, c. 
669, does apply to persons admitted to the Psychopathic De- 
partment of the Boston State Hospital or to the school de- 
partment of the Massachusetts School for the Feeble-minded. 

3. How does section 4 affect the legal settlement of a person absent 
from his place of settlement for five years, exclusive of the time he was 
in the almshouse of said place, he at the time of admission to the alms- 
house being a resident of another city or town and immediately after dis- 
charge returning thereto? 

Section 4 is as follows: — 

A person who, after the passage of this act, is absent for five consecu- 
tive years from the city or town in which he had a settlement shall thereby 
lose his settlement. But the time during which a person shall have been 
an inmate of any public hospital, public sanatorimn, almshouse, jail, 
prison, or other pubhc institution, within the commonwealth, or of a 
soldiers' or sailors' home whether within or without the commonwealth, 
shall not be counted in computing the time either for acquiring or for 
losing a settlement, except as provided in section two. 

Under this section the absence from the city or town of 
settlement which will operate to defeat the settlement must 
be "for five consecutive years." If a person is in the alms- 
house located in the place of his settlement, it cannot be said 
that he is absent from that city or town. 

Accordingly, in my opinion, the fact that he was absent 
from his place of settlement for a period of time less than five 
years prior to his admission to the almshouse in his place of 
settlement is not to be taken into account in applying the 
provisions of section 4 of this act, and such a person will not 
lose his settlement by departing from that place after his 
discharge from its almshouse until he has been absent for five 
years consecutively thereafter. 



128 OPINIONS OF THE ATTORNEY-GENERAL. 



Commonwealth — ■ Commission for the Blind — Laws re- 
lating TO Hawkers and Pedlers not Applicable to 
Sales by. 

R. L., c. 65, and amendatory acts, relating to itinerant vendors and hawkers and 
pedlers, do not apply to sales conducted by the Massachusetts Commission 
for the Blind for disposing of home and shop products of blind labor. 

mlsKo™" You request my opinion as to whether the provisions of R. 
1917' ■ L,, c. 65, and its amendments, relating to the regulation of sales 

' by itinerant vendors and by hawkers and pedlers, apply to sales 

conducted by your Board for disposing of home and shop prod- 
ucts of blind labor. 

As I understand it, these sales are made by persons employed 
by your Board and paid out of the appropriation made for your 
work. I also understand that the goods sold are either the 
property of the Commonwealth which have been made by blind 
labor paid for by the Commonwealth, from material furnished 
by it, or else that they are goods made by blind persons from 
their own materials on their own account and consigned to your 
Board for sale. In the latter case the goods are sold by you 
as agents of the consignors and no commission is charged. On 
these facts it is apparent that these sales are either sales con- 
ducted by the Commonwealth of its own property, or sales 
conducted by it as agent, in both instances as a part of its 
work of educating, assisting and maintaining blind persons. 

It is well settled that police regulations are not to be con- 
strued as applying to the Commonwealth unless it clearly ap- 
pears that it was intended that they should so apply. Teasdale 
v. Newell, etc., Construction Co., 192 Mass. 440; II Op. Atty.- 
Gen. 400. 

The statute under consideration is plainly a police regulation, 
and must be construed with reference to this rule. I am un- 
able to find in it or in any of its amendments the slightest 
indication that it was intended by the General Court to apply 
to activities of the Commonwealth. Accordingly, in my 
opinion, it must be interpreted as not applying to the activ- 
ities of your Board, and therefore your agents in carrying on 



HENEY C. ATTWILL, ATTORNEY-GENERAL. 

the work of your Board are not required to be licensed either 
as itinerant vendors or as hawkers and pedlers, even though 
the methods employed by them would otherwise bring them 
within the terms of the statute. 



129 



Retirement Association — Assessment upon Members in 
Military or Naval Service. 

The assessments to be made upon members of the Retirement Association who 
have been mustered into the military or naval service of the United States, 
and who are receiving from the Commonwealth the payments provided by Gen. 
St. 1917, c. 301, should be in the same amount as before the members were 
mustered into the Federal service. 

You have requested my opinion as to the basis upon which J/'j^gfir^ment 
assessments are to be made upon members of the Retirement jjiy jg 
Association who have been mustered into the military or naval 
service of the United States and are receiving payments under 
the provisions of Gen. St. 1917, c. 301. 

Section 1 of that statute is as follows: — 

There shall be allowed and paid, out of the treasury of the common- 
wealth, to every employee of the commonwealth who has been or is here- 
after mustered into the military or naval service of the United States 
during the present war, an amount equal to the difference between the 
compensation received by him from the United States, plus the compen- 
sation received as extra military pay, received from the commonwealth, 
and the amount which he was receiving from the commonwealth at the 
time when he was mustered in. The said payments shall continue so long 
as he continues in the military or naval service of the United States, but 
shall cease one month after the termination of the war. In case of his 
death in the said service his widow, minor children, parents or dependents 
shall receive the said sum until the termination of the war. 

R. L., c. 19, § 25, provides as follows: — 

Any person in the classified public service of the commonwealth or of 
any city or town thereof who resigns such office or leaves such service for 
the purpose of enUsting and serving in the army or navy of the United 
States or in the mihtia of this commonwealth in time of war and so enlists 
and serves, may at any time within one year after his honorable discharge 
from such miUtary or naval service be appointed to or employed in his 



130 OPINIONS OF THE ATTORNEY-GENERAL. 

former or a similar position or employment, without application or exami- 
nation. 

Though the first-mentioned statute does not expressly pro- 
vide that an employee is to be taken back into the service of 
the Commonwealth at the termination of the war or of his 
military or naval service, yet the last-mentioned provision 
seems plainly to authorize such action, at least in the case of 
employees in the classified civil service. The implication is 
that the person performing the work of the absent employee is 
doing so only temporarily, and that the absent employee may 
be reinstated upon his return. 

Reading these two sections together, in the light of their 
apparent purpose, it seems to me that, at least for the pur- 
poses of the administration of the retirement system, Gen. St. 
1917, c. 301, should be interpreted as granting a leave of ab- 
sence, with pay, during the continuance of the war and for 
thirty days thereafter, to all employees mustered into the 
military or naval service of the United States during the pres- 
ent war. The employee is required to credit against his salary 
merely such compensation as he receives on account of his 
military services. Thus interpreting the statute, it is my opin- 
ion that you should take as a basis for the assessments upon 
members of the Retirement Association their full salary as it 
was paid them when their leaves of absence under this statute 
began, without considering the deductions made on account of 
their military or naval pay. The result is that their assess- 
ments are of the same amount as they were before the mem- 
bers entered the service of the United States. 

If cases arise where employees of the Commonwealth receive 
more compensation on account of their military or naval serv- 
ices than they had been receiving from the Commonwealth, 
and thus they receive no compensation under chapter 301, it 
is my opinion that, if you are satisfied that they have not re- 
signed their positions but have merely been granted leaves of 
absence, you are warranted in accepting from them assess- 
ments of the same amount which they were paying before 
they entered the service of the United States. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 131 



Commonwealth Flats — Authority of Commission on 
Waterways and Public Lands to authorize Lessee 
TO keep or sell Gasoline. 

The Commission on Waterways and Public Lands may lease portions of the Com- 
monwealth Flats, so called, in South Boston, but cannot authorize the keeping 
or sale of gasoline by the lessee without the approval of the Fire Prevention 
Commissioner. 

You have requested my opinion as to whether your Com- To the Com- 

•, , . ^, 1 • f> • i« mission on 

mission has authority to grant a location lor a station rrom waterways and 

•^ *= . Public Lands. 

which gasoline may be sold on State property in South Boston; j^^^^^g 
and whether, if such a grant may be made, it is subject to the 
approval of the Fire Prevention Commissioner." 

Your Commission undoubtedly has the right to lease por- 
tions of the Commonwealth's lands in South Boston, subject 
to the approval of no persons except, in certain instances, the 
Governor and Council. 

The lessee of such lands, however, is not exempt from the 
police regulations of the State simply by reason of the fact 
that he has obtained his title from the Commonwealth. Any 
lease which might be given to a person or corporation in- 
tending to keep or sell gasoline would not, in my opinion, 
exempt such lessee from the provisions of law requiring a 
license for that purpose. 



War Service — State Pay — Drafted Men not entitled to. 

The State pay of $10 a month provided for by Gen. St. 1917, c. 211, as extended 
by Gen. St. 1917, c. 332, is not available to persons drafted from this Com- 
monwealth into the military service of the United States under the provisions 
of the act of Congress of May 18, 1917. 

You have asked my opinion as to whether Gen. St. 1917, TreS^erand 
c. 211, as extended by Gen. St. 1917, c. 332, applies to men g^S!' 
who are drafted into the military service of the United States Augult i. 
under the provisions of the Selective Service Law, so called, 
approved May 18, 1917. 

Gen. St. 1917, c. 211, is entitled "An Act to provide State 



132 OPINIONS OF THE ATTORNEY-GENERAL. 

pay for soldiers and sailors from this Commonwealth in the 
volunteer service of the United States." Section 1 provides, 
in part, as follows: — 

There shall be allowed and paid out of the treasury of the common- 
wealth to each non-commissioned officer, soldier and sailor, who has been, 
or is hereafter, mustered into the military or naval sendee of the United 
States as a part of the quota of this commonwealth for service in the 
United States or in any foreign country, the sum of ten dollars per month. 

By Gen. St. 1917, c. 332, the last-mentioned statute is ex- 
tended so as to apply to "any non-commissioned officer or 
enlisted man having a residence of at least six months within 
this state and serving to the credit of this commonwealth in 
the regular or volunteer forces of the United States army, 
navy or marine corps, whose federal service began subsequent 
to" Feb. 3, 1917. 

This last-mentioned statute was approved on May 25, 
1917, and thus after the enactment of the Selective Service 
Law. It is obvious, however, that it cannot apply to men 
drafted into the military service of the United States under 
that act. Men drafted into service under this act cannot, of 
course, be said to be serving in the "volunteer forces of the 
United States army; " nor are they serving in the regular 
forces of that army. This is made plain by the terms of the 
Selective Service Law. It is entitled "An Act to authorize the 
President to increase temporarily the military establishment, 
of the United States." On account of the existing emergency 
the President is authorized to raise by draft, organize and 
equip certain additional forces, and the men so drafted are 
to serve for the period of the existing emergency, unless 
sooner discharged. It is plain, therefore, that the forces raised 
by the Selective Service Law are not regular forces of the 
United States Army as permanently established by the Federal 
statutes, but constitute merely special forces temporarily 
added to the military establishment of the United States 
for and during the period of a particular emergency. 

Accordingly, it becomes necessary to determine whether 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 133 

the men drafted under this Federal law, and mustered into 
service thereunder, have been "mustered into the military 
or naval service of the United States as a part of the quota 
of this commonwealth for service in the United States or in 
any foreign country," within the meaning of section 1 of 
chapter 211. On May 2, 1917, when this chapter was 
approved and took effect, as I pointed out in the opinion 
rendered you on June 6 last, the only quota assigned to this 
Commonwealth by the Federal government was that of the 
National Guard. Section 2 of the Selective Service Law, sub- 
sequently enacted by Congress, provides for the assignment 
of quotas for the several States and Territories. The question 
raised is whether the language of chapter 211 is broad enough 
to include such quotas assigned under the provisions of that 
law, which was not in force when chapter 211 was enacted. 

The last-mentioned statute originated in a message sent by 
the Governor to the General Court on April 2, 1917, in which 
the following recommendations were made: — 

Three regiments of the National Guard of the Commonwealth have 
been called by the President of the United States and are now in the 
Federal service. How long this service will continue or how many men 
of our Guard may be called to serve with them cannot now be known, 
but we have the same situation that arose last summer after the Legis- 
lature was prorogued and that was dealt with by it when it came together 
again. The pay allowed by the national government is only $15 a month, 
or scarcely more than the pay of the soldier fifty years ago. The last 
Legislature by an act passed in September, 1916, granted a supplementary 
pay of $10 a month to each non-commissioned officer and soldier who 
had been called to do service at the Mexican Border. 

I recommend that you make similar provision in favor of the non- 
commissioned officers and men of the National Guard who have been or 
who shall be summoned mto the national service. The object of this 
recommendation is to establish the aggregate pay which the men shall 
receive from the national and State government together at $25 a month. 
If the national government should raise the pay, as it probably will do, to 
that extent the amount involved in my recommendation would be corre- 
spondingly decreased. 

A bill was submitted with this message, which was enacted 
without change so far as the language now under discussion 



134 OPINIONS OF THE ATTORNEY-GENERAL. 

is concerned. This history of the statute rather points to the 
conclusion that it was intended to apply only to the members 
of the National Guard. The fact that it was thought necessary 
thereafter to extend the rights thus granted by the provision 
already quoted from chapter 332 points also in the same 
direction. It is significant that this last-mentioned statute, 
enacted after the approval of the Selective Service Law, makes 
no reference to it or to men summoned into service in ac- 
cordance with its provisions. 

Though the language of section 1 of chapter 211 is not 
entirely clear, the title of the chapter seems to indicate an in- 
tent of the Legislature to restrict its application to volunteers. 
It is well settled that reference to a title is permissible when 
the enacting clauses of the statute are not free from doubt. 
The title states it to be the purpose of the act "to provide 
State pay for soldiers and sailors from this Commonwealth in 
the volunteer service of the United States." The two statutes 
under consideration were apparently designed to provide more 
adequate pay for the members of the National Guard when 
summoned into the Federal service, and to encourage vol- 
untary enlistments in the various branches of the military 
service of the United States. Under all the circumstances it 
is my opinion that the provisions of neither chapter 211 nor 
chapter 332 of the General Acts of 1917 apply to men drafted 
into the military service of the United States under the pro- 
visions of the Selective Service Law. 

I reach the conclusion just stated with less hesitation 
because of the fact that the payments authorized by these 
statutes are to continue only until Jan. 15, 1918. Even if 
construed as applicable to drafted men, they could be given 
only when such men were actually mustered into service, and 
would necessarily terminate on January 15 next. On or be- 
fore that date the General Court will probably be obliged to 
consider the question of extending or modifying the provisions 
for these payments. It can at that time deal with the case 
of men drafted into service in such manner as is deemed 
appropriate. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 135 



War Service — Aid by Cities and Towns to Dependents 
OF Persons drafted into. 

The wife, widow, children or other dependents of a person drafted into the military 
service of the United States under the Selective Service Law, so called, are eli- 
gible to receive the aid authorized by Gen. St. 1917, c. 179, from the city or 
town of which the person so drafted was an inhabitant and in which he was 
residing. 

You have requested my opinion as to whether the dependents To the Com- 
of men drafted into the military service of the United States state Aid and 
under the provisions of the Selective Service Law are entitled . i9i7 

'■ ^ August 1. 

to receive aid under the provisions of Gen. St. 1917, c. 179. 

I have to-day advised the Treasurer and Receiver-General 
that the provisions of Gen. St. 1917, c. 211, as extended by 
Gen. St. 1917, c. 332, do not apply to such drafted men. The 
language of chapter 179, however, is quite different, and, in 
my opinion, requires a different conclusion. Section 1 is as 
follows : — ■ 

Any city or town may raise money by taxation or otherwise, and, if 
necessary, expend the same by the officers authorized by law to furnish 
state and military aid, for the benefit of the wife, widow, children under 
sixteen years of age, or any child dependent by reason of physical or 
mental incapacity, or the actually dependent parents, brothers and 
sisters, of any inhabitant of such city or town, having a residence and 
actually residing therein, who has enlisted, and responded to the call of 
the president or war department, or hereafter shall duly be enlisted, and 
who has been or shall be mustered into the military or naval service of 
the United States as a part of the quota of this commonwealth which 
may be called for service in the United States or in any foreign country, 
up to January fifteenth, nineteen hundred and nineteen, unless the said 
service is sooner terminated, in the same manner and under the same 
limitations, except as hereinafter provided, as state aid is paid to dependent 
relatives of soldiers or sailors of the civil war and of the war with Spain. 

It thus applies to the dependents of any inhabitant coming 
within its terms "who has enlisted, and responded to the call 
of the president or war department, or hereafter shall duly be 
enhsted, and who has been or shall be mustered into the mili- 
tary or naval service of the United States as a part of the 
quota of this commonwealth which may be called for service 



136 OPINIONS OF THE ATTORNEY-GENERAL. 

in the United States or in any foreign country." The Selective 
Service Law provides for the assignment of quota for the sev- 
eral States and Territories, and in the assigning of these quotas 
credit is given for members of the National Guard in the 
service of the United States on April 1, 1917, and for men sub- 
sequently enlisted as members of the regular army or National 
Guard. The language of chapter 179 is broad enough to in- 
clude the quota of the Commonwealth under the Selective 
Service Law, and there is nothing in the title of chapter 179 
which would restrict the meaning of this language. 

In Sheffield v. Otis, 107 Mass. 282, 284, our Supreme Judi- 
cial Court, in construing a statute containing somewhat simi- 
lar language, thus defined the meaning of the word "enlist:" — 

It seems clear to us that the case is not taken out of the statute by the 
fact that Walley was drafted, and did not volunteer to enter the service. 
The words of the statute are, "any person who shall have been duly en- 
hsted," and not any person who shall voluntarily enlist. By the primary 
meaning of the word, a person is "enlisted" whose name is duly entered 
upon the military rolls, and it applies to those who are drafted as well as 
to those who volunteer. Both are enlisted. The word is used in this 
sense in the articles of war for the government of the armies of the United 
States. The eleventh article provides that, "after a non-commissioned 
officer or soldier shall have been duly enlisted and sworn, he shall not be 
dismissed the service without a discharge in writing." The twentieth 
article provides that "all officers and soldiers who have received pay, or 
have been duly enlisted in the service of the United States, and shall be 
convicted of having deserted the same, shall suffer death or such other 
punishment as by sentence of court martial shall be inflicted " U. S. 
St. 1806, c. 20; 2 U. S. Sts. at Large, 361, 362. In both of these articles 
the term "duly enlisted" necessarily includes soldiers who have been 
drafted, as well as those who have entered the service as volunteers. 

In view of the foregoing definition it is my opinion that a 
person drafted and mustered into service under the Selective 
Service Law is a person who has been "enlisted, . . . and 
. . . mustered into the military or naval service of the United 
States," within the meaning of chapter 179. In my opinion, 
therefore, this chapter should be construed as applying to the 
dependents of men thus drafted. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 137 

I see no inconsistency in reaching different conclusions as 
to the appHcation in this respect of chapters 179 and 211. 
The latter relates merely to the compensation of enlisted men, 
and a substantial portion of its purpose was to encourage vol- 
untary enlistments. The former, however, applies to all per- 
sons who are dependent for their means of sustenance upon 
inhabitants of the Commonwealth engaged in military service. 
The duty of the Commonwealth toward all such dependents 
is the same without regard to the class of service in which the 
person upon whom they are dependent is engaged. 



Club Charter — Cause for Revocation by Secretary of 
Commonwealth. 

A conviction under the provisions of R. L., c. 100, § 88, does not warrant action by 
the Secretary of the Commonwealth under R. L., c. 100, § 89, relating to the 
revocation of club charters. 

You have requested my opinion as to whether the charter To the 
of a club incorporated under the provisions of R. L., c. 125, i9i7 

should be declared void, in accordance with the provisions of 

R. L., c. 100, § 89, on evidence that a certain person has been 
found guilty of a charge that he did "without legal authority 
keep and maintain a certain building and place . . . used by 
a club . . . for the purpose of illegally selling, distributing and 
dispensing intoxicating Hquors to its members and others to 
the common nuisance of all the people." 

Such a complaint is preferred under R. L., c. 100, § 88. 

The provision of section 89 is — 

If any person is convicted of exposing and keeping for sale or selling 
intoxicating liquor on the premises occupied by any club ... or of 
illegal gaming upon said premises, . . . the selectmen of the town . . . 
shall immediately notify the secretary of the commonwealth, and he shall, 
upqn receipt of such notice, declare the charter of said club void. 

It thus appears that the sale or keeping for sale of intoxicat- 
ing Hquors is a distinct offence from that prescribed by section 



138 OPINIONS OF THE ATTORNEY-GENERAL. 

88, under which the conviction in the present case was had, 
and, accordingly, it does not appear that any person has been 
convicted of exposing and keeping for sale intoxicating liquors 
on the premises occupied by the club in question. 

Furthermore, it is to be observed that a conviction under 
the provisions of section 88 is sustained by proof of either a 
sale and distribution or a dispensing of intoxicating liquors, 
and therefore a conviction may occur under the section where 
no illegal sale took place. 

As this is a penal statute, it is to be construed strictly, and, 
accordingly, I am of the opinion that such conviction does not 
warrant your taking action under the provisions of R. L., c. 
100, § 89. 



Steam Boilers — Board or Boiler Rules — ■ Power to ex- 
empt FROM Operation of Rules. 

Under St. 1907, c. 465, the Board of Boiler Rules has no power, even in time of war, 
to grant special permission to any person to install in this Commonwealth boil- 
ers which do not conform to the rules of construction formulated by said Board . 

Governor. You havc rcqucstcd my opinion as to the legality of a sug- 

Auguitis. gested amendment to the rules formulated by the Board of 
Boiler Rules which in substance would permit, during a time 
of war, the installation within this Commonwealth of boilers 
which do not conform to the rules of construction formulated 
by the Board of Boiler Rules, upon application made to that 
Board and permission granted by it. 

The law governing the regulation of steam boilers is found in 
St. 1907, c. 465, as amended. 

Section 1 of that chapter, as originally enacted, contained 
the following: — 

No certificate of inspection shall be granted on any boiler installed 
after May first, nineteen hundred and eight, which does not conform to 
the rules of construction formulated by the board of boiler rules. 

It was undoubtedly the purpose of this act to forbid, in 
general, and, subject to the exceptions found therein, to pro- 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 139 

hibit, the operation of boilers which had not been inspected 
and a certificate of inspection issued therefor. Although the 
original act may not in its criminal provisions have effectually 
enforced its purpose, the later amendments have cured any 
such defects. 

By section 24 of that act the Board of Boiler Rules was 
created. By section 26 it was provided: — 

It shall be the duty of the board of boiler rules to formulate rules for 
the construction, installation and inspection of steam boilers, and for 
ascertaining the safe working pressure to be carried on said boilers, to 
prescribe tests, if they deem it necessary, to ascertain the qualities of 
materials used in the construction of boilers; to formulate rules regu- 
lating the construction and sizes of safety valves for boilers of different 
sizes and pressures, the construction, use and location of fusible safety 
plugs, appliances for indicating the pressure of steam and the level of 
water in the boiler, and such other appliances as the board may deem 
necessary to safety in operating steam boilers; and to make a standard 
form of certificate of inspection. 

Under this statute as originally enacted it is certainly doubt- 
ful whether, in view of the provision of section 1 above quoted, 
it was within the power of the Board of Boiler Rules, in formu- 
lating the rules which, by section 26, it was authorized to make, 
to provide that any person might by special permission from 
that Board violate the rules made. 

It is apparent that the purpose of the statute in this respect 
and of the rules to be formulated by this Board was to secure 
"safety in operating steam boilers;" and there would seem to 
be no reason for exempting special persons from the operation 
of laws and rules necessary to secure such safety. 

If any doubt upon this point could exist under the original 
law, it would seem to have been removed by the later amend- 
ments. 

St. 1909, c. 393, § 1, amended the original section 1 by in- 
serting the following : — 

A boiler in tliis commonwealth at the time of the passage of this act, 
which does not conform to the rules of construction formulated by the 
board of boiler rules may be installed after a thorough internal and ex- 



140 OPINIONS OF THE ATTORNEY-GENERAL. 

ternal inspection and hydrostatic pressure test by a member of the boiler 
inspection department of the district police, or by an inspector holding a 
certificate of competency as an inspector of steam boilers, as provided by 
section six of chapter four hundred and sixty-five of the acts of the year 
nmeteen hundred and seven, and employed by the company insuring the 
boiler. The pressure allowed on such boilers is to be ascertained by rules 
formulated by the board of boiler rules. 

This express provision of the Legislature for installation of 
certain boilers which might not conform to the rules of con- 
struction formulated by the Board of Boiler Rules would 
naturally exclude from such special favor boilers not included 
within the class designated, to wit: boilers in this Common- 
wealth at the time of the passage of that act. 

This same act of the year 1909 amended section 26 by the 
insertion of certain provisions in part as follows: — 

When a person desires to manufacture a special type of boiler the 
design of which is not covered by the rules formulated by the board of 
boiler rules, he shall submit drawings and specifications of such boiler to 
said board, which, if it approves, shall permit the construction of the 
same. 

This provision for special type of boilers not covered by the 
rules also impliedly excludes the idea of special permission by 
the Board of Boiler Rules for the construction or installation 
of boilers in fact covered by the rules but contrary to their 
terms. 

As stated above, the design and purpose of these statutes 
and rules is to prevent the operation of boilers which cannot be 
operated with safety. It would seem to be undesirable that 
boilers which cannot be operated with safety should be in- 
stalled or used at any time. If, on the other hand, the rules 
formulated by the Board of Boiler Rules now existing prevent 
the installation or operation of boilers which can be used with 
safety to the public, it would seem to furnish a reason for 
amending the rules so as to permit the installation and use of 
such boilers, regardless of the persons desiring to use the same, 
rather than for the creation of a rule permitting the use by 
some and refusing it to others. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 

For the reasons stated above, I am of the opinion that such 
a rule as is referred to in your request is not authorized by the 
statutes upon this subject. 



141 



Board of Parole — Permits to be at Liberty — Cannot 
be voted to a convict while actually confined in 
Insane Hospital. 

A person who has been sentenced to the Massachusetts Reformatory, the Reforma- 
tory for Women, the State Prison or the Prison Camp and Hospital, and who 
has been committed under St. 1909, c. 504, § 105, from any of said institu- 
tions to a State hospital for the insane, cannot be voted a permit to be at 
liberty by the Board of Parole of the Massachusetts Bureau of Prisons so long 
as he is actually confined in such insane hospital. 



I acknowledge receipt of your communication in which you To the Board 
ate the following facts: — Septembers. 

A person was committed to the reformatory at Concord on the 18th of 



June, 1914. On the 24th of September, 1915, under the provisions of St. 
1909, c. 504, § 105, he was committed to the State Hospital at Bridge- 
water. It now seems advisable to the Commission on Mental Diseases 
and to the Board of Parole that this prisoner be transferred to the control 
of the authorities of the State of Connecticut having charge of insane 
persons. 

You request my opinion upon the question of whether your 
Board has authority under these circumstances to vote a per- 
mit to be at liberty to this man, he now being actually in con- 
finement at the Bridgewater State Hospital. 

You further request my opinion as to whether, if he had 
been transferred to the Bridgewater State Hospital from the 
State Prison, the Prison Camp and Hospital, or (being a woman) 
from the Reformatory for Women at Sherborn, the Board 
would have such authority. 

R. L., c. 225, § 117, as amended by St. 1906, c. 244, au- 
thorizes the Prison Commissioners to issue a permit to be at 
liberty to "a prisoner in the Massachusetts reformatory, or a 
prisoner who has been removed therefrom to a jail or house of 
correction," under the conditions therein set forth. 



142 OPINIONS OF THE ATTORNEY-GENERAL. 

Section 118 of this chapter conferred a similar authority 
upon the Prison Commissioners in relation to "a prisoner in 
the reformatory prison for women, or a prisoner who has been 
removed therefrom to a jail or house of correction." 

No permits to be at liberty could be issued to a prisoner 
in the State Prison who had been sentenced thereto for a 
crime committed after Jan. 1, 1896, until after his minimum 
term of sentence had expired, until the passage of St. 1911, 
c. 451. . This statute authorized the granting by the Prison 
Commissioners, under certain conditions, of "a special permit 
to be at liberty from the state prison to a prisoner held therein." 
The provisions of this act were extended by St. 1912, c. 103, 
to prisoners transferred from the State Prison to the Massa- 
chusetts Reformatory. 

St. 1906, c. 243, relating to the Prison Camp and Hospital, 
provided that all laws relative to the temporary industrial 
camp for prisoners should apply to the Prison Camp and 
Hospital. St. 1904, c. 243, relating to the industrial camp for 
prisoners, provided that — 

The prison commissioners in their discretion may issue to any prisoner 
held at said camp a permit to be at liberty upon such terms and conditions 
as they shall prescribe. 

St. 1913, c. 829, as amended by Gen. St. 1915, c. 206, 
creating the Board of Parole for the State Prison and the 
Massachusetts Reformatory, and the Board of Parole for the 
Reformatory for Women, provided — 

All the powers of the board of prison commissioners relating to the 
granting of permits to be at liberty from the state prison, the Massachu- 
setts reformatory, the reformatory for women and the prison camp and 
hospital are hereby transferred to and vested in the several boards of 
parole for said institutions. 

By Gen. St. 1916, c. 241, the Board of Parole for the State 
Prison and the Massachusetts Reformatory and the Board of 
Parole for the Reformatory for Women were abolished, and 
all the powers and duties of said Boards of Parole were trans- 
ferred to the Board of Parole of the Massachusetts Bureau of 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 

Prisons, which was thereby estabHshed. All other powers and 
duties belonging to the Board of Prison Commissioners were 
transferred to the Director of said Massachusetts Bureau of 
Prisons, and the Board of Prison Commissioners was abolished. 
It may be noted that the powers transferred by St. 1913, 
c. 829, were limited to the issuance of permits to be at liberty 
from the State Prison, the Massachusetts Reformatory and 
the Reformatory for Women, It did not include the authority 
to issue such permits to prisoners who had been removed 
from the Massachusetts Reformatory or the Reformatory for 
Women to a jail or house of correction, but this authority 
remained in the Board of Prison Commissioners, and was 
transferred by Gen. St. 1916, c. 241, to the Director of the 
Massachusetts Bureau of Prisons instead of to the Board of 
Parole. This situation, however, was changed by Gen. St. 
1917, c. 245, which provides that — 

All the powers and duties of the director of prisons relating to the 
granting of permits to be at liberty to prisoners who have been removed 
from the Massachusetts reformatory to a jail or house of correction, and 
to prisoners who have been removed from the reformatory for women to 
a jail or house of correction, are hereby transferred to, and shall hereafter 
be exercised by, the board of parole of the Massachusetts bureau of 
prisons. 

Since the passage of the act last quoted, your Board pos- 
sesses all the powers in relation to the granting of permits to 
be at liberty theretofore exercised by the Board of Prison 
Commissioners. 

The difficulty, however, which, in my judgment, prevents 
your Board from issuing a permit to be at liberty to the 
prisoner in question is that, so long as he is actually confined 
in the Bridgewater State Hospital under order of the court, he 
cannot be considered to be "a prisoner in the Massachusetts 
Reformatory," within the meaning of R. L., c. 225, § 117, as 
amended by St. 1906, c. 224. 

St. 1909, c. 504, § 105, is as follows: — 

The state board of insanity shall designate two persons, experts in 
insanity, to examine prisoners in the state prison, the Massachusetts 



143 



144 OPINIONS OF THE ATTORNEY-GENERAL. 

reformatory, or the reformatory prison for women, who are alleged to be 
insane. If any such prisoner appears to be insane, the warden or super- 
intendent shall notify one or both of the persons so designated, who shall, 
with the physician of the prison, examine the prisoner and report the 
result of their investigation to the superior court of the county in which 
the prison is situated. If, upon such report, the court considers the 
prisoner to be insane and his removal expedient, it shall issue a warrant,, 
directed to the warden or superintendent, authorizing him to cause the 
prisoner, if a male, to be removed to the Bridgewater state hospital and, 
if a female, to be removed to one of the state hospitals for the insane, 
there to be kept until, in the judgment of the superintendent and the 
trustees of the hospital to which the prisoner has been committed, he or 
she should be returned to prison. When the supermtendent and trustees 
determine that the prisoner should be so returned, they shall so certify 
upon the said warrant, and notice, accompanied by a written statement 
regarding the mental condition of the prisoner, shall be given to the warden 
or superintendent of the prison, who shall thereupon cause the prisoner 
to be reconveyed to the prison, there to remain pursuant to the origmal 
sentence, computing the time of his detention or confinement in the hos- 
pital as part of the term of his imprisonment. 

When a prisoner has been removed under the provisions of 
this section from the State Prison, the Massachusetts Re- 
formatory or the Reformatory Prison for Women to a State 
hospital for the insane, he must, in my judgment, be kept 
there until he is in fit condition to be reconveyed to the prison 
or reformatory from which he was sent. When a prisoner has 
been so reconveyed, your Board of course has authority to 
grant to him a permit to be at liberty, under the conditions 
prescribed by the statutes first above quoted; but so long as 
he is actually confined in a State hospital for the insane I am 
of the opinion that your Board has no jurisdiction over him 
in this respect. Accordingly, the answer to your inquiry must 
be in the negative. 

In reply to your further inquiry I advise you that, in my 
opinion, it would make no difference if the prisoner had been 
committed to the Bridgew^ater State Hospital from the State 
Prison, the Reformatory for Women or the Prison Camp and 
Hospital. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 145 



War Service — Employees or Commonwealth — Payment 
OF Difference in Compensation to those drafted. 

An employee of the Commonwealth who has been drafted into the military service 
of the United States under the Selective Service Law, so called, is entitled to 
the benefits provided by Gen. St. 1917, c. 301. 

You request my opinion as to whether a State employee to the Auditor. 
who is drafted into the mihtary service of the United States September is. 
under the so-called Selective Service Law is entitled to the 
difference between his military pay and the amount which he 
is receiving from the Commonwealth under the provisions of 
Gen. St. 1917, c. 301. Section 1 of that statute provides, in 
part, as follows : — 

There shall be allowed and paid, out of the treasury of the common- 
wealth, to every employee of the commonwealth who has been or is here- 
after mustered into the military or naval service of the United States 
during the present war, an amount equal to the difference between the 
compensation received by him from the United States, plus the compen- 
sation received as extra military pay, received from the commonwealth, 
and the amount which he was receiving from the commonwealth at the 
time when he was mustered in. . . . 

This language is very broad, and applies to every employee 
of the Commonwealth "who has been or is hereafter mustered 
into the mihtary or naval service of the United States during 
the present war." Plainly, employees who are drafted into that 
service come within this language. They are, in my opinion, 
entitled to the benefits of the act from the date when they are 
thus mustered into the military service. 



146 OPINIONS OF THE ATTORNEY-GENERAL. 



War Service — Employees of Commonwealth attending 
Officers' Training Camps — 'Whether mustered into 
THE Military Service of the United States. 

An employee of the Commonwealth who is serving at an officers" training camp 
conducted under authority of section 54 of the National Defense Act "has 
been . , . mustered into the military . . . service of the United States," and is, 
accordingly, entitled to the benefits of Gen. St. 1917, c. 301. 

1917 ' You have requested my opinion as to whether employees of 
' the Commonwealth who attend officers' training camps con- 
ducted at Plattsburg and elsewhere are entitled to the benefits 
of Gen, St. 1917, c. 301. Section 1 of that act provides, in 
part, as follows : — 

There shall be allowed and paid, out of the treasury of the common- 
wealth, to every employee of the commonwealth who has been or is here- 
after mustered into the military or naval service of the United States 
during the present war, an amount equal to the difference between the 
compensation received by him from the United States, plus the compen- 
sation received as extra military pay, received from the commonwealth, 
and the amount which he was receiving from the commonwealth at the 
time when he was mustered in. . . . 

These officers' training camps are conducted by the War 
Department under the authority of section 54 of the National 
Defense Act. It is there provided that these camps are to be 
conducted "under such terms of enlistment and regulations as 
may be prescribed by the Secretary of W^ar." He has pre- 
scribed that persons admitted to these camps for training shall 
be required to enlist for a period of three months, though this 
enlistment carries with it an obligation to undertake service in 
the training camp only. It is also required that a person at- 
tending such a camp shall agree to accept such commission in 
the army of the United States as he may be tendered by the 
Secretary of War. 

The question whether a person serving in one of these camps 
has been "mustered into the military service of the United 
States" must be determined largely by the attitude of the 
United States, particularly the War Department, toward these 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 147 

men. If the War Department considers them and deals with 
them as in the military service of the government, the Com- 
monwealth ought to follow that ruling. Accordingly, I have 
delayed replying to your letter until I could learn what that 
attitude was. I have just received a letter from the Judge 
Advocate-General of the United States, which reads in part 
as follows : — 

This office, in an opinion dated June 30, 1917, on the question whether 
candidates for commissions undergoing training in the reserve officers' 
training camps are to be considered in the military service of the United 
States for campaign badge purposes, or whether they are to be considered 
civilians until receiving commissions, held that such candidates should be 
considered to be in the military service of the United States, and that 
campaign badges may properly be issued to such of them as might be en- 
titled thereto, using the following language respecting their status: — 

Upon inquiry at the office of The Adjutant-General this office has been informed 
that the men now in training camps have been enlisted for three months under the 
provisions of section 54 of the National Defense Act, authorizing the traimng of 
"such citizens as may be selected for instruction and training, upon their applica- 
tion and under such terms of enlistment and regulations as may be prescribed by the 
Secretary of War; ..." 

Being enhsted in the service of the United States they are, for the term 
of their enlistment, members of the military force of the United States, 
although the purpose of their membership is solely training for future use 
as commissioned officers. 

In view of this ruling I deem it my duty to advise you that 
employees of the Commonwealth while attending these train- 
ing camps, so far as they are conducted under present condi- 
tions, are to be regarded as "mustered into the military . . . 
service of the United States," and that, accordingly, they are 
entitled to the benefits of this statute. 



148 OPINIONS OF THE ATTORNEY-GENERAL. 

War Service — Employees of Commonwealth drafted into 
Military Service — Application of Civil Service 
Laws and Rules to. 

Under R. L., c. 19, § 25, any person in the classified public service of the Common- 
wealth who has been drafted into the military service of the United States 
under the Selective Service Law, so called, may be appointed to or employed 
in his former or a similar position in the classified public service within one 
year after his honorable discharge from such military service, without applica- 
tion or examination, and Civil Service Rules 31 and 45 do not apply to such a 
situation in so far as they are inconsistent with this statute. 

Supervisor of You have Fcquested my opinion upon behalf of the committee 
1917 ' on civil service of the Executive Council upon the question of 

October 16. 

whether R. L., c. 19, § 25, protects employees of the Common- 
wealth who have been drafted into the military service of the 
United States so that they may without difficulty return to 
their positions in the State service when their military service 
is finished; and whether the present Civil Service Rules 31 
and 45 conflict in any way with R. L., c. 19, § 25, or in any 
way jeopardize the positions of State employees who have 
entered the military or naval service of the United States. 
R. L., c. 19, § 25, is as follows: — 

Any person in the classified public service of the commonwealth or of 
any city or town thereof who resigns such office or leaves such service for 
the purpose of enhsting and serving in the army or navy of the United 
States or in the mihtia of this commonwealth in time of war and so en- 
lists and serves, may at any time within one year after his honorable dis- 
charge from such military or naval service be appointed to or employed 
in his former or a similar position or employment, without application or 
examination. 

The difficulty presented by your inquiry is whether a person 
selected for military service and inducted into the military 
forces of the United States under the provisions of the act of 
Congress approved May 18 can be said to have enlisted, within 
the meaning of the act above quoted. In considering a similar 
question our Supreme Judicial Court said, in the case of 
Sheffield V. Otis, 107 Mass. 282: — 

It seems clear to us that the case is not taken out of the statute by the 
fact that Walley was drafted, and did not volunteer to enter the service 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 149 

The words of the statute are, "any person who shall have been duly en- 
listed," and not any person who shall voluntarily enhst. By the primary 
meaning of the word, a person is "enlisted" whose name is duly entered 
upon the military rolls, and it applies to those who are drafted as well as 
to those who volunteer. Both are enlisted. 

While it is true that R. L., c. 19, § 25 (originally St. 1898, 
c. 454), was enacted at the time of our war with Spain, at 
w^hich time no draft law was in effect, or, so far as is known, 
under contemplation, nevertheless, I am of the opinion that an 
employee of the Commonwealth who is drafted under the pro- 
visions of the Selective Service Law, so called, comes within the 
purview of this statute, and may be appointed to or employed 
in his former or a similar position or employment after his 
honorable discharge from military or naval service without 
application or examination. 

I am fortified in this opinion by reason of the fact that 
under the provisions of Gen. St. 1917, c. 301, employees of the 
Commonwealth who are mustered into the military or naval 
service of the United States during the present war are paid by 
the Commonwealth an amount equal to the difference between 
the compensation they were receiving at the time when they 
were mustered in and the amount which they receive while in 
the military service. In an opinion given under date of Sept. 
18, 1917, to the Auditor of the Commonwealth ruled that 
the provisions of this act included drafted men. 

It would seem that it was in the mind of the Legislature 
that these men were to be considered as temporarily absent 
from the service of the Commonwealth as on a leave of ab- 
sence, and that their positions in the classified civil service 
were not to be affected by their absence until the cause of 
such absence had been removed. 

Furthermore, I beg to advise that Civil Service Rules 31 
and 45, in my opinion, do not conflict in any way with the 
statute in question nor jeopardize the positions of State em- 
ployees who have entered the military or naval service of the 
United States. All rules made by the Civil Service Commis- 
sion must be consistent with law, and they cannot change the 



150 



OPINIONS OF THE ATTORNEY-GENERAL. 



force or effect of this statute. General rules of the Civil Serv- 
ice Commission relating to reinstatements and appointments, 
such as the ones to which you refer, must be interpreted as 
not applying to persons within the purview of said section 25 
in so far as these rules are inconsistent with the terms of that 
section. Accordingly, the answer to your second question 
must be in the negative. 



Street Railways — Location — Power to mortgage — 
Rights of Purchaser at Foreclosure Sale. 



The location of a street railway company may be included in a mortgage given by 
it to secure a bond issue, and upon foreclosure of the mortgage may pass to the 
purchaser and his successors in title. 

The signature of one of the subscribers to the agreement of organization of a 
proposed street railway company made by an attorney is a sufficient and 
proper signature, provided the attorney had sufficient authority. 



In connection with the application of a street railway com- 
pany for a certificate under St. 1906, c. 463, Pt. Ill, § 9, you 
have requested my opinion upon the following questions : — 

1. It appears that said company, in process of organization, has ac- 
quired from a purchaser at a foreclosure sale, made by the trustee under 
a mortgage given to secure an issue of bonds by a street railway company, 
"all and singular the lines of railway," "lands," "real and leasehold 
estate," "franchises," "rights" and "privileges" of said mortgagor com- 
pany. The question presented is whether by this means it has "obtained " 
"locations" "for a railway between the termini and substantially over 
the route set forth in the agreement of association," which is one of the 
conditions required by section 9 of Part III of chapter 463 of the Acts of 
1906. 

In other words, does the location of a street railway company pass as 
a part of its grant under a mortgage given by it to secure a bond issue? 

Under the provisions of R. L., c. 112, § 23, and the earlier 
act, St. 1889, c. 316, a street railway company is authorized 
to secure an issue of bonds "by a mortgage of a part or of the 
whole of the railway of such company and its equipments, 
franchise and other property, real and personal." 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 15t 

This language is sweeping in its terms, and, in my opinion, 
was intended to authorize the conveyance by mortgage of all 
of its property and rights. This conclusion is strengthened 
by the fact that R. L., c. Ill, § 74, which, by the provisions of 
R. L., c. 112, § 24, is made applicable to street railway com- 
panies, provides — 

A purchaser of a railroad at a sale under a valid foreclosure of a legal 
mortgage thereof and his successors in title, shall be subject to all and 
the same duties, liabilities and restrictions, and have aU and the same 
powers and rights, relative to the construction, maintenance and opera- 
tion of said railroad which the mortgagor was subject to and had at the 
time of said sale. 

The applicability of this provision to street railways was 
provided for by St. 1889, c. 316, § 3, referred to above. 

It is apparent that in order for this authorization to become 
effective it is requisite that the locations of the street railway 
company should pass to the mortgagee and purchasers at a sale 
under a foreclosure. 

By express provision of the section last quoted these rights 
pass equally to the successors in title of a purchaser at a fore- 
closure sale. 

This provision of the statute is still in effect. See St. 1906, 
c. 463, Pt. II, § 56, made applicable to street railways by Pt. 
Ill, § 103. 

It has been held by the court that these statutes are but 
declaratory of the law "as it exists without legislation in other 
jurisdictions, and as doubtless it would have been held to be 
in this Commonwealth upon general principles before the en- 
actment of the statute." Chadwick v. Old Colony R.R., 171 
Mass. 239, 244. 

Accordingly, I am of the opinion that by conveyance to the 
said street railway company from a purchaser at a foreclosure 
sale it may properly be found to have obtained locations as 
required by St. 1906, c. 463, Pt. Ill, § 9. 

2. The question is also raised as to whether signature of one of the 
subscribers to the agreement for organization of the proposed street rail- 



152 



OPINIONS OF THE ATTORNEY-GENERAL. 



way company made by an attorney, expressly authorized thereto in 
writing, is a sufficient and proper signature. 

In my opinion, the requirement of the statute is satisfied 
when there is an agreement of association so executed as to be 
legally binding upon the individual associates. I see no reason 
for doubting the validity of such an agreement executed by an 
attorney, provided the authority in that attorney sufficiently 
appears. 

It is stated that the particular person whose name is signed 
by power of attorney is one of the directors. The foregoing 
opinion relates merely to the agreement of association, and 
does not extend to any of the preliminary papers which are 
required by the statute to be executed by the preliminary 
officers or directors. 



Laborers — Regularly employed by Cities and Towns for 

MORE THAN A YEAR — DETERMINATION OF WhO ARE. 

A person whose employment has not been terminated for more than a year, and 
which is of such a nature as to require the services of such person the usual 
number of hours a day throughout the year, is "regularly employed" for more 
than a year, ■^\-ithin the meaning of St. 1914, c. 217, § 1, even though he has 
been absent from his work for some time during the year on account of sick- 
ness or other cause. 



You request my opinion as to the interpretation of the word 

1. That section 



To the Board 
of Labor and 

Industries. '' rcgularly " as used in St. 1914, c. 217 

October 31. , « ,i 

reads as follows: — 



All persons classified as laborers, or doing the work of laborers, and 
regularly employed by cities or towns for more than one year, shall be 
granted a vacation of not less than two weeks during each year of their 
employment, without loss of pay. 



You state that certain cities and towns have arbitrarily fixed 
the number of days which shall constitute regular employ- 
ment under this act; others leave it to the discretion of the 
employing authorities; while still others have prepared a list 
of those employed all the time, and hold that these only are 
entitled to vacation. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 153 

While it is difficult in a matter of this kind to prescribe a 
general rule which will apply to all cases which may hereafter 
arise, it is my opinion that the word "regularly" in this act 
is used in the sense of continuously, as distinguished from in- 
termittently or at intervals. This does not mean, however, 
that a person must be actually at work during all of the work- 
ing days of the year. The fact that he was absent from his 
work on account of sickness or other cause which did not con- 
stitute a termination of his employment would not prevent 
him from being regularly employed within the meaning of this 
act. On the other hand, if his employment had terminated 
during the year this fact would prevent him from being regu- 
larly employed, although he was re-employed by the city or 
town a short time afterwards. The test, in my judgment, is 
whether or not the employment of the man has terminated 
within the year so as to make it necessary for him to be re- 
employed before he starts to work again. If it has been so 
terminated, he cannot be said to be regularly employed for . 

more than one year, within the meaning of the act above 
quoted. If, however, it is not terminated for more than a 
year, and the nature of his employment is such as to require 
his services for the usual number of hours a day throughout 
the year, he is, in my opinion, regularly employed within the 
meaning of this act. 



Elections — Corrupt Practices Act — • Promise by Candi- 
date TO DONATE HIS SaLARY TO PARTICULAR ChARITY. 

A promise made by a candidate for office of representative in the General Court to 
donate his salary, if elected, to the Red Cross would be a violation of the cor- 
rupt practices act. 

You request my opinion upon the question of whether a Tothe 
promise by a candidate for the position of representative in the ®'''' ^7' 
General Court to donate his salary, in case he is elected, to °'!!^'" 
the Red Cross would "conffict with paragraph 4 in section 347 
of the corrupt practices act." 

Section 347 of this act (St. 1913, c. 835) only forbids a 



154 OPINIONS OF THE ATTORNEY-GENERAL. 

candidate to promise to appoint or assist in securing the ap- 
pointment, nomination or election of another person to a pub- 
He position or employment, or to a position of honor, trust or 
emolument. This section plainly does not apply to the prom- 
ise in question. 

Section 348 of this act, as superseded by St. 1914, c. 783, 
§ 2, provides as follows : — 

No person shall, in order to aid or promote his own nomination or 
election to a public office, either directly or indirectly, himself or through 
another person, give, pay, expend or contribute, or promise to give, pay, 
expend or contribute any money or other thing of value in excess of the 
following amounts: — 



For each Representative in the General Court to which a district is entitled, $100 

The gift, payment, contribution or promise of any money or thing of 
value in excess of the sums hereby authorized to be expended for the 
several offices, by a candidate directly or indirectly, or by any other 
person or persons for his benefit, excepting political committees as here- 
inafter provided, shall be deemed a corrupt practice. 

This section prohibits all promises by candidates to pay 
money in excess of the amount named in order to aid their 
election. I am inclined to the view that a promise of the char- 
acter described is to be construed as a promise made for the 
purpose of aiding the election of the candidate. Accordingly, 
I am of the opinion that it is prohibited by the terms of the 
statute. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 155 



Trial Justices, Jurisdiction of. 

The trial justice of the town of North Andover has no jurisdiction over cases arising 
in the town of Methuen, but all such cases as could be heard by the trial justice 
of Methuen may, during his incapacity, be heard and determined by the Dis- 
trict Court of Lawrence. 

You have requested my opinion as to the legality of the trial Joverlior. 
justice of the town of North Andover sitting on cases in the November ( 
town of Methuen, the trial justice in the town of Methuen 
being incapacitated at the present time. 

Formerly trial justices were appointed under the provisions 
of R. L., c. 161, in the several counties, and their jurisdiction 
extended throughout the counties for which they were ap- 
pointed. The law was changed in this respect by Gen. St. 
1917, c. 326, which provides for the designation of justices of 
the peace as trial justices in certain towns therein specified, 
including North Andover and Methuen. Section 1 of this 
act, superseding R. L., c. 161, § 10, expressly confers authority 
upon such trial justices to receive complaints, issue warrants 
and try criminal cases within the towns where they are resi- 
dent at the time when they are appointed and commissioned, 
"except that the trial justices resident in Barre and Hardwick 
shall have concurrent jurisdiction of offences committed in the 
towns of New Braintree and Oakham." This section, taken in 
connection with the other provisions of this act, seems to me 
clearly to indicate that the intention of the Legislature was to 
restrict the jurisdiction of these trial justices to the towns 
where they were resident at the time of their appointment, and 
to prevent their exercising jurisdiction as trial justices within 
any other towns. 

Accordingly, I am of the opinion that the trial justice of the 
town of North Andover may not hear and determine cases 
arising in the town of Methuen. 

The fact that the trial justice in the town of Methuen is at 
present incapacitated to perform his duties as such trial justice 
does not, however, seriously embarrass the administration of 
the law in that town, inasmuch as there is a police court which 



156 OPINIONS OF THE ATTORNEY-GENERAL. 

has jurisdiction of cases arising in that town which is concur- 
rent with the trial justice. By St. 1914, c. 532, the towns of 
North Andover, Andover and Methuen were annexed to, and 
made a part of, the judicial district of the police court of 
Lawrence for civil business, and the name of that court was 
changed to the District Court of Lawrence. Gen. St. 1917, 
c. 302, § 1, provides that all towns now within the judicial 
district of any district court for civil business shall be an- 
nexed to, and made a part of, the judicial district of such court 
for all kinds of business. Section 2 of this act provides that 
the jurisdiction acquired by any court under the provisions of 
section 1 shall, in all towns which now or hereafter have a trial 
justice resident and holding court therein, be exclusive of such 
trial justice only as to matters without the jurisdiction of a trial 
justice and concurrent with the trial justice as to all matters 
within his jurisdiction. It seems clear, therefore, that all cases 
which could be heard by the trial justice of Methuen can, 
during his incapacity, be as readily heard and determined by 
the District Court of Lawrence. 



War Service — State Pay — Enlistments in National 
Guard of Another State. 

Citizens of this Commonwealth who have enlisted in the National Guard of another 
State are not entitled to the State pay from this Commonwealth of $10 a month 
provided for by Gen. St. 1917, cc. 211 and 332. 

Govenior. You requcst my opinion as to whether certain citizens of the 

November 13. Commouwcalth residing in Attleboro and its vicinity, who have 
enlisted in regiments of the Rhode Island National Guard, are 
entitled to the State pay from this Commonwealth of $10 a 
month granted by Gen. St. 1917, c. 211, as defined and ex- 
tended by Gen. St. 1917 c. 332. 

Section 1 of chapter 211 provides that this allowance shall 
be paid "to each non-commissioned officer, soldier and sailor, 
who has been, or is hereafter, mustered into the military or 
naval service of the United States as a part of the quota of 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 157 

this commonwealth for service in the United States or in any 
foreign country." At the time of the enactment of this stat- 
ute the only quota in any manner assigned to the Common- 
wealth by the Federal government grew out of the provision in 
the National Defense Act regulating the numerical strength of 
the National Guard to be maintained by the Commonwealth. 

Accordingly, on June 6 last I advised the Treasurer and 
Receiver-General as follows : — 

In my opinion, therefore, the provision for State pay contained in 
chapter 211 applies at present only to the non-commissioned officers, 
soldiers and sailors of the National Guard of the Commonwealth, in- 
cluding therein any naval militia maintained by the Commonwealth, 
who have been mustered into the Federal service. It applies, however, 
to all such persons without condition as to length of residence in the 
Commonwealth . 

Since this opinion was given, a further quota was assigned 
to the Commonwealth in connection with the draft under 
the Selective Service Law. After a full consideration of the 
matter, however, I am of the opinion that neither chapter 
211 nor chapter 332 applies to men called to service under 
that statute, and I have advised State officials upon whom the 
duties in connection with the administration of these statutes 
devolve to that effect. In my opinion, it follows that chapter 
211 applies only to soldiers and sailors mustered into the Na- 
tional Guard of the Commonwealth, and cannot apply to men 
who enlist in the National Guard of another State. They be- 
come a part of the quota of that State and not a part of the 
quota of this Commonwealth. 

Chapter 332 extends the rights granted by chapter 211 to 
"any non-commissioned officer or enlisted man having a resi- 
dence of at least six months within this state and serving to 
the credit of this commonwealth in the regular or volunteer 
forces of the United States army, navy or marine corps, whose 
federal service began subsequent to said February third, nine- 
teen hundred and seventeen," This provision, however, applies 
only to men serving in the United States Army, Navy or 
Marine Corps, and does not, in my opinion, apply to men 



158 



OPINIONS OF THE ATTORNEY-GENERAL. 



serving in the National Guard of any State. Furthermore, it 
requires that the service shall be "to the credit of this com- 
monwealth." That, in my opinion, at least requires that the 
Commonwealth shall have the credit of the service of such men 
in the records of the Federal government. It is obvious that 
it cannot have such credit in the case under consideration, for 
the men referred to are serving as a part of the quota of Rhode 
Island in the National Guard of that State, and I know of no 
way in which it can appear in the records of the Federal gov- 
ernment that this Commonwealth is to have the credit of such 
service. 

Accordingly, in my opinion, the men to whom you refer are 
not entitled to the benefits of either chapter 211 or chapter 332 
of the General Acts of 1917. 



Militia — ■ State Guard — Status of — Appropriations for. 



To the 
Adjutant- 
General. 
1917 
November 15. 



Tho State Guard established under Gen. St. 1917, c. 14S, does not have the same 
status as the National Guard, but is rather a part of the unorganized militia of 
the Commonwealth, temporarily organized in a limited way and for a limited 
purpose. 

No part of the appropriations made by Spec. St. 1917, c. 292, for the land and naval 
forces of the Commonwealth may be used in organizing, maintaining and 
training the State Guard. 



You have submitted 
opinion : — 



to me the following request for my 



The National Guard of this Commonwealth, which was formerly the 
only organized militia of the Commonwealth, has been called into the 
service of the United States, leaving within the State but five commis- 
sioned officers. 

The Legislature, under Gen. St. 1917, c. 148, and mider Gen. St. 1917, 
c. 342, § 10, created a military force from our unorganized militia, which 
has been called the State Guard. 

Your opinion is respectfully requested as to how far appropriations 
created by the Legislature under Gen. St. 1917, c. 292, approved April 
23, 1917, may be used in organizing, maintaining and training said State 
Guard. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 159 

The answer to your inquiry involves the determination of 
the status of the State Guard in its relation to the military 
forces of the Commonwealth and the various statutes governing 
their organization and maintenance. Various similar questions, 
the answers to which depend upon that status, have already 
arisen and others are likely to arise. Accordingly, I propose 
to discuss that matter somewhat more broadly than the terms 
of your request necessarily require. 

The provision for the organization of a State Guard, then 
called a home guard, was first made by Gen. St. 1917, c. 148, 
which took effect April 5, 1917. Section 1 authorized the 
Commander-in-Chief in time of war to raise by voluntary 
enlistment and organize such a body from certain specified 
classes of citizens of the United States who are inhabitants of 
the Commonwealth. Section 2 provides as follows: — 

The home guard may be of such numerical strength, and shall be so 
organized, maintained, officered, armed and equipped, and enlisted for, 
or disbanded from, such service within the commonwealth at any time 
and on such terms as the commander-in-chief may from time to time by 
executive order determine. Wlien called for service the home guard shall 
perform such duties as shall be prescribed by order of the commander- 
in-chief, and all members of the home guard shall have and exercise 
throughout the commonwealth all the powers of constables, police officers 
and watchmen, except the service of civil process. The compensation of 
officers and men of the home guard, when called by executive order for 
service and while on such service, shall be fixed by the commander-in- 
chief, and shall in no event exceed the compensation of officers and men 
of the national guard of like grade. 

By section 3 certain provisions of the existing military law 
relating to the election, appointment and authority of officers 
and to the compensation of members injured in the discharge 
of their duty are made applicable to this force. By section 4 
it is exempted from the provisions forbidding bodies not ex- 
pressly authorized to drill with firearms or to maintain an 
armory. Except in these respects there is no attempt to 
extend the general statutes for the government and mainte- 
nance of the organized militia to this body. Section 6 is as 
follows : — 



160 OPINIONS OF THE ATTORNEY-GENERAL. 

For the purpose of carrying out the provisions of this act the governor 
is authorized to expend the sum of two hundred thousand dollars, to be 
taken from the sum of one million dollars appropriated by chapter two 
hundred and two of the Special Acts of the year nineteen hundred and 
seventeen. 

The appropriation referred to is a special emergency appro- 
priation made in view of the exigencies of a possible war. 

By Gen. St. 1917, c. 327, approved May 25, 1917, the 
statutes relating to the militia of the Commonwealth were 
codified, revised and amended. No part of the statutes then 
in force as to the State Guard was in any way incorporated 
in this codification or referred to therein. They appear in no 
way to have been repealed or otherwise affected by it. (See 
§ 268.) 

By Gen. St. 1917, c. 331, the Governor is authorized to 
"incur expenses, not exceeding two hundred and fifty thousand 
dollars, for the maintenance of the state guard, so-called, when 
said guard is called for active duty." 

On Aug. 20, 1917, the Governor, as Commander-in-Chief, 
issued the following executive order : — ■ 

(rt) By the authority vested in me by chapter 148, General Acts of 
1917, I prescribe that the Guard authorized by said chapter 148 shall be 
organized, maintained, officered, armed and equipped, as the organized 
militia is organized, maintained, officered, armed and equipped, under 
the provisions of chapter 327, General Acts of 1917, in so far as the pro- 
visions of said chapter 327 are not inconsistent with the pro\'isions of 
said chapter 148. 

(b) All officers of the hereinbefore mentioned Guard are directed to 
execute any and all lawful commands issued to them by the proper persons 
mentioned in sections 25 to 34, both inclusive, chapter 327, General Acts 
of 1917. 

Obviously, the State Guard, not being organized in accord- 
ance with the Federal law (act of June 3, 1916) or in accord- 
ance with the laws governing the Massachusetts Volunteer 
Militia (St. 1908, c. 604; Gen. St. 1917, c. 327), cannot be a 
part of the National Guard. 

The limited provisions of the statutes above set forth dealing 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 161 

with the organization, equipment and maintenance of this 
force seem to me to make it clear that it was not intended 
to be a complete substitute for the National Guard, or to 
have all the powers and privileges of that force while it is 
absent from the Commonwealth in the service of the United 
States. 

In my opinion, the State Guard may be regarded as a part 
of the unorganized militia of the Commonwealth temporarily 
organized in a limited way and for a hmited purpose. Its 
character, duties and powers, in the main, are prescribed by 
Gen. St. 1917, c. 148, § 2. It is to be of such numerical 
strength, to be organized, equipped and maintained, and to 
have such terms of service as the Commander-in-Chief shall 
determine. "When called for service" it "shall perform such 
duties as shall be prescribed by order of the commander-in- 
chief, and all members of the home guard shall have and 
exercise throughout the commonwealth all the powers of con- 
stables, police officers and watchmen, except the service of 
civil process." 

Acting under the authority given to him by Gen. St. 1917, 
c. 148, § 2, the Commander-in-Chief, on Aug. 20, 1917, pre- 
scribed that so far as not inconsistent with chapter 148, the 
State Guard shall be organized, maintained, officered, armed 
and equipped in the same manner as the National Guard un- 
der Gen. St. 1917, c. 327. This was merely a convenient 
method of carrying out the provisions of section 2 of chapter 
148. 

By the same general order the Commander-in-Chief also 
directed all officers of the State Guard "to execute any and 
all lawful commands issued to them by the proper persons 
mentioned in sections 25 to 34, both inclusive, chapter 327, 
General Acts of 1917." These sections provide for the calling 
out of the Volunteer Militia by the Commander-in-Chief or 
a brigade commander in case of actual or threatened invasion 
or insurrection, or, in case of riot or public catastrophe, by 
certain local civil officers. The Governor has thus, under the 
general authority granted to him by chapter 148, prescribed 



162 OPINIONS OF THE ATTORNEY-GENERAL. 

that the State Guard shall perform the duties which ordinarily 
devolve upon the Volunteer Militia under those- sections. So 
far as I am informed this is the only duty as yet assigned to 
this force, but it is at any time subject to be called to active 
service within the Commonwealth and assigned to perform 
such emergency duties therein as the Commander-in-Chief shall 
by general or special order direct. 

The status of the State Guard being as above determined, 
the various questions which have arisen as to the scope of its 
duties and the manner of its organization and maintenance 
may readily be answered. Particularly is this so as to the use 
of appropriations. The appropriations made by Spec. St. 1917, 
c. 292, are declared to be "for salaries and expenses in the 
department of the adjutant general, and for certain allowances 
and expenses of the land and naval forces." Its items cover 
the annual appropriations ordinarily made for the Volunteer 
Militia. In large part it covers various annual allowances 
established by law for that militia. (St. 1908, c. 604, §§ 173 
and 177, as amended by Gen. St. 1917, c. 105.) The term 
"land and naval forces" used in this appropriation statute is 
plainly used to describe the land forces and the naval forces as 
defined in the codification of the military laws shortly after 
enacted by the same General Court. (See Gen. St. 1917, 
c. 327, §§78 and 194.) These definitions do not include the 
State Guard, and, as already pointed out, this codification 
does not purport to deal with that organization. Fm-ther- 
more, definite special provisions have been made for financing 
it. By St. 1917, c. 148, § 6, the Governor was authorized to 
expend the sum of $200,000 for its organization. By Gen. 
St. 1917, c. 331, he was authorized "to incur expenses, not 
exceeding two hundred and fifty thousand dollars for the 
maintenance of the state guard, so-called, when said guard is 
called for active duty," the amount thus expended to be 
raised by a loan. These two statutes fully cover the matter; 
the former providing for the expense of organizing and equip- 
ping the State Guard, and the latter for its maintenance when 
and if called for active dutv. If either or both of the amounts 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 163 

thus authorized prove inadequate, the Governor, with the 
consent of the Council, may unquestionably apply to such 
purpose any part of the second war emergency appropriation 
of 11,000,000 authorized by Gen. St. 1917, c. 324. 

Accordingly, answering your specific question, in my opinion 
no part of the appropriations made by Spec. St. 1917, c. 292, 
for the land and naval forces of the Commonwealth may be 
used in organizing, maintaining and training the State Guard. 



War Service — Employees of Commonwealth — Amount 
PAID BY Commonwealth to those entering Military 
OR Naval Service of the United States. 

The so-called family allowance granted to enlisted men in the military or naval 
forces of the United States by act of Congress approved Oct. 6, 1917, is to be 
regarded as part of the compensation received by such men from the United 
States, for the purpose of computing the amount which an employee of the 
Commonwealth is entitled to receive from this Commonwealth under the pro- 
visions of Gen. St. 1917, c. 301. 

You have requested my opinion as to whether the so-called J°]|j®^ 
family allowance granted to enlisted men in the military and December 4. 
naval forces of the United States by sections 204 to 210, in- 
elusive, of an act of Congress approved Oct. 6, 1917, is to be 
regarded as a part of the compensation received by such men 
from the United States in administering the provisions of Gen. 
St. 1917, c. 301. 

This family allowance is an amount not exceeding $50 a 
month which is paid, upon application and subject to certain 
restrictions, to the wife and children of all enlisted men in 
the military and naval forces of the United States, and to 
certain other relatives who are shown to be in whole or in 
part dependent upon them. It is a payment made on account 
of the enlisted man because of the services which he is render- 
ing in the performance of his duty, for the purpose of enabling 
him the better to perforin his legal and moral obligations with 
reference to the support of his family. This payment ceases 



164 OPINIONS OF THE ATTORNEY-GENERAL. 

upon the death of an enUsted man in the service or one month 
after his discharge from the service. 

Though the matter is not entirely free from doubt, it seems 
to me, on the whole, that this payment may and fairly ought 
to be regarded as a part of "the compensation received by him 
from the United States," within the meaning of Gen. St. 1917, 
c. 301, § 1. The allowance paid relieves him, to the extent 
thereof, of an obligation that he otherwise would have to as- 
sume. The members of Class A of the Federal act, for whom 
allowances are made, are those whom a man ordinarily is 
bound by law to support, while the allowances to the members 
of Class B under the act are to be granted only if and while 
the member is dependent in whole or in part on the enlisted 
man, and then only if and while the enlisted man makes a 
voluntary allotment of his pay for said member. Thus, the 
benefit of the payment accrues to the enlisted man fully as 
much as if paid to him directly and by him used to discharge 
obligations imposed on him by law or voluntarily assumed. 
Any other interpretation would place an employee of the 
Commonwealth mustered into the military or naval service of 
the United States, and his family, in a better financial position 
than if he had not enlisted. It would result in their having 
the benefit of an amount equivalent to the full salary which 
he was receiving from the Commonwealth at the time of his 
enlistment, and in addition the amount of this family allow- 
ance paid by the United States. I cannot believe that it was 
the intention of the General Court that such a result should 
follow from the enactment of this statute. It rather was its 
purpose to place an employee of the Commonwealth enlisting 
in the military or naval service in the same financial position 
that he would have been in if he had not so enlisted. In my 
opinion, the statute should be so interpreted as to carry out 
this purpose, and not, unless absolutely necessary, to place the 
employee in a better position financially than he was in before 
enlistment. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 165 



War Service — Associate Members of Legal Advisory 
Boards — Incompatibility of Offices. 

Associate members of legal advisory boards do not hold office under authority of 
the United States, within the meaning of Article VIII of the Amendments to 
the Massachusetts Constitution, so as to disquahfy them as members of the 
General Court. 

You have requested my opinion as to whether members of q'J^^^^j. 
legal advisory boards hold an office under authority of the jan"ry4. 
United States, within the meaning of Article VIII of the 
Amendments to the Massachusetts Constitution, so that the 
acceptance of that office after the beginning of the legislative 
year 1918 would disquahfy them as members of the General 
Court. 

The members of the so-called permanent legal advisory 
boards are appointed under the rules of the President promul- 
gated on the eighth day of November, 1917, under the provi- 
sions of the Selective Service Act of Congress. The associate 
members of such legal advisory boards are such members of 
the bar and competent laymen as are called upon by the 
Governor to offer their services to the permanent legal ad- 
visory boards in the several districts, for the purpose of being 
present at the headquarters of the local boards and rendering 
aid and advice to registrants. 

To hold an office under the authority of the United States 
within the meaning of said amendment to the Constitution, in 
my opinion, a person must be an officer of the government of 
the United States, whose duties involve in their performance 
the exercise of some portion of the sovereign power, whether 
great or small. In advising and assisting registrants in the 
filling out of the so-called questionnaire I think it is obvious 
that the associate members of the legal advisory boards are 
not exercising any part of the sovereign power of the United 
States. 

Accordingly, my answer to your question is in the negative. 



166 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the 

Secretary. 

1918 
January 16. 



Justice of the Peace — Notary Public — Jurisdiction. 

No person appointed a justice of the peace or notary public in this Commonwealth 
can act as such when outside the jurisdiction of the Commonwealth. A jus- 
tice of the peace or notary public can continue to act as such although he is at 
the same time in the service of the United States Army, provided that when he 
acts as such he is within the Commonwealth. 

You request my opinion as to whether a justice of the peace 
or notary public in this Commonwealth can continue to act 
after he goes to another State, and whether he can continue 
to act after entering the service of the United States Army, 
either as a private or non-commissioned officer, if stationed in 
this Commonwealth or elsewhere. 

I am of the opinion that a justice of the peace or notary 
public can continue to act as such although he is at the same 
time in the service of the United States Army, provided that 
when he acts as such he is in the Commonwealth. It is to be 
noted, however, that section 1222 of the Revised Statutes of 
the United States provides that no officer of the army on the 
active list shall hold any civil office, whether by election or 
appointment, and every such officer who accepts or exercises 
the functions of a civil office shall thereby cease to be an 
officer of the army, and his commission shall thereby be 
vacated. 

I am of the opinion that no person appointed a justice of the 
peace or notary public in this Commonwealth can act as such 
when outside the jurisdiction of the Commonwealth. 



War Service — State Benefits — United States Guard. 

The organization known as the United States Guard is a volunteer force of the 
United States Army, within the meaning of Gen. St. 1917, c. 332. Persons 
enlisting in the United States Guard subsequent to Feb. 3, 1917, are eligible 
to the benefits provided for by Gen. St. 1917, c. 179. 



You request my opinion upon the question of "whether the 
United States Guard, now being enlisted in the service of the 



To the 

Adjutant- 
General. 
1918 

jan^mry^iv. Uuitcd Statcs, is cousidcrcd a part of the quota of the Com- 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 167 

monwealth of Massachusetts, and therefore eligible to aids and 
pay under the statutes of 1917." 

I am informed that the United States Guard, so called, is a 
military force raised under the provisions of section 2 of the 
act of Congress approved May 18, 1917, which is as follows: — 

Provided, That the President is authorized to raise and maintain by 
voluntary enlistment or draft, as herein provided, special and technical 
troops as he may deem necessary, and to embody them into organiza- 
tions and to officer them as provided in the third paragraph of section 
one and section nine of this act. 

Gen. St. 1917, c. 211, entitled "An Act to provide State pay 
for soldiers and sailors from this Commonwealth in the volun- 
teer service of the United States," provides, in part, as follows: — 

There shall be allowed and paid out of the treasury of the common- 
wealth to each non-commissioned officer, soldier and sailor, who has been, 
or is hereafter, mustered into the miUtary or naval service of the United 
States as a part of the quota of this commonwealth for service in the 
United States or in any foreign country, the sum of ten dollars per month. 

It should be noted that this chapter expressly provides that 
the benefits of this statute shall not continue beyond Jan. 15, 
1918, so that your inquiry, so far as it relates to the aid pro- 
vided for by this statute, is now a moot question. 

Gen. St. 1917, c. 179, entitled "An Act to provide aid for 
certain dependent relatives of soldiers and sailors of the com- 
monwealth in the federal service," authorized cities and towns 
to provide aid for certain relatives and dependents "of any 
inhabitant of such city or town, having a residence and actu- 
ally residing therein, who has enlisted, and responded to the 
call of the president or war department, or hereafter shall duly 
be enlisted, and who has been or shall be mustered into the 
military or naval service of the United States as a part of 
the quota of this commonwealth which may be called for serv- 
ice in the United States or in any foreign country." 

The benefits of these acts were extended by chapter 332 of 
the acts of the same year to "any non-commissioned officer or 



168 OPINIONS OF THE ATTORNEY-GENERAL. 

enlisted man having a residence of at least six months within 
this state and serving to the credit of this commonwealth in 
the regular or volunteer forces of the United States army, 
navy or marine corps, whose federal service began subsequent 
to said February third, nineteen hundred and seventeen." 

In an opinion rendered by me to the Treasurer and Receiver- 
General under date of June 6, 1917, it was stated that the 
requirement that the service must be " as a part of the quota 
., of this commonwealth" limited the scope of said chapter 211 

to non-commissioned officers, soldiers and sailors of the National 
Guard of the Commonwealth, including therein any naval 
militia maintained by the Commonwealth, who have been 
mustered into the Federal service. This phrase as used in 
chapter 179 must be interpreted likewise. My opinion was 
also expressed that the right to receive State pay was extended 
by the provisions of said chapter 332 to all persons enlisting 
in the regular or volunteer forces of the United States Army, 
provided such persons had at the time of their enlistment been 
residents of the Commonwealth for at least six months. 

It seems plain, in my judgment, that the organization raised 
by the President under the provisions of the act of Congress 
of May 18, 1917, above quoted, and known as the United 
States Guard, is a volunteer force of the United States Army, 
within the meaning of Gen. St. 1917, c. 332. The copy of the 
enlistment blanks used by persons enlisting in this force ap- 
pears to be similar in form to those used in the regular army. 

Accordingly, I am of opinion that persons enlisting in the 
United States Guard subsequent to Feb. 3, 1917, are eligible 
to the benefits provided for by Gen. St. 1917, c. 179. 



HENRY C. ATTWILL, ATTORNEY-GENERAL, 169 



Corporations — Increase of Capital Stock — Filing Fee. 

The Secretary of the Commonwealth is not authorized to return to a corporation 
the filing fee paid by it on filing a certificate of increase of capital stock, even 
though the stock may in fact never be issued. Upon the filing of the certifi- 
cate the authority to increase the capital stock is complete, and it is for that 
right that the fee is required. 



You have requested mv opinion as to whether you can To the 

o,. p • 1 1 • Secretary. 

properly refund to a corporation a ming tee paid by it on j^^^^ ^^ 

filing a certificate of increase of capital stock, in view of the 

fact that thirty days after the filing of such certificate the di- 
rectors and stockholders of the corporation each voted to re- 
scind all action which had previously been taken, so that as a 
matter of fact it appears that there has been no actual increase 
of the stock of the corporation. 

Under the provisions of St. 1903, c. 437, §§ 40 to 44, inclu- 
sive, a corporation is permitted to amend its agreement of 
association in several ways, including therein the amount of 
stock authorized. Under the provisions of section 41 the 
amendments cannot take effect until the articles of amendment 
have been filed in the office of the Secretary of the Common- 
wealth, and it is for such filing that the fee fixed by the pro- 
visions of section 89, as amended, is required. 

Upon such filing the authority to increase the capital stock 
is complete. Even though the stock may in fact never be 
issued, the right to issue it has been obtained, and it is for that 
right that the fee is required. 

The same situation exists with reference to original incor- 
poration. The fees based on capitalization are determined by 
the amount of stock authorized, not by the amount which 
may be issued after the authorization has been obtained. It 
seems quite clear that if, upon incorporating, a larger amount 
of capital were authorized than needed, and, the whole amount 
authorized not having been issued, the amount of capital 
should be reduced, there would be no ground for requesting a 
return of any part of the fees. 

Similarly, the fact that the corporation did not avail itself 
of the authority which it had obtained, but saw fit to have 



170 



OPINIONS OF THE ATTORNEY-GENERAL. 



that authority revoked, does not affect the fact that it did 
obtain the right to increase its capital stock. Very much the 
same reasoning appears in an opinion of the Attorney-General 
rendered in 1895 to the Secretary of the Commonwealth (I Op. 
Atty.-Gen. 205). 

Accordingly, I am of the opinion that you are not authorized 
to return to the corporation in question the filing fee which has 
been paid. 



Board of Registration in Pharmacy — Medicated Alcohol 
— Recording of Sales. 



To the Board 
of Registratior 
in Pharmacy. 

1918 
January 23. 



Medicated alcohol containing ingredients rendering the compound poisonous does 
not fall within the prohibition of our laws relative to intoxicating liquors. It 
is not necessary that the sale of such a non-beverage alcohol shall be recorded 
in the liquor record book, under the provisions of R. L., c. 100, § 26. 

You request my opinion as to the right of a druggist to sell 
"non-beverage" alcohol without making a record of the sale in 
the liquor record book, under the provisions of R. L., c. 100, 
§ 26. 

R. L., c. 100, § 21, as amended by St. 1913, c. 410, and as 
affected by St. 1913, c. 413, provides that a registered pharma- 
cist to whom a certificate of fitness has been issued may sell 
pure alcohol for medicinal and other purposes without a physi- 
cian's prescription, if such sale is recorded in the manner pro- 
vided for in section 26 of said chapter 100. Under the United 
States law enacted on Sept. 9, 1917, and the regulations issued 
by the Commissioner of Internal Revenue relative to the regu- 
lation and control of alcohol purchased for use or sale, it is pro- 
vided that pharmacists who are holders of special tax stamps 
as retail liquor dealers will be entitled to sell non-beverage alco- 
hol if the same is properly medicated in accordance with certain 
formulae therein mentioned, among which are the following : — 

Carbolic acid 1 part, alcohol 99 parts. 
Formaldehyde 1 part, alcohol 250 parts. 
Bichloride of mercury 1 part, alcohol 2,000 parts. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 171 

I am advised that in every instance the added ingredients 
render the compound poisonous, and if the alcohol were to be 
used as a beverage it would probably be attended with fatal 
results. At all events, I think it clear that such medicated 
alcohol is not pure alcohol, under the provisions of chapters 
410 and 413 of the Acts of 1913. Nor do I understand that 
such medicated alcohol can be used as an intoxicating drink. 
If not, it does not fall within the prohibition of our laws rela- 
tive to intoxicating liquor. CommomveaUh v. Ramsdell, 130 
Mass. 68, 69. 

Accordingly, without expressing any opinion as to w^hether 
such medicated alcohol is of such a poisonous nature as to re- 
quire the recording of its sale in the book in which sales of 
poisonous substances are required to be recorded, I am of the 
opinion that its sale need not be recorded in the liquor book. 



Minimum Wage Commission — Authority to issue Special 
Licenses — Women Physically Defective. 

Under the provisions of St. 1912, c. 706, § 9, the Minimum Wage Commission is 
warranted in issuing to women special licenses permitting their employment 
at less than the legal minimum wage fixed for women in their occupation, pro- 
vided the women are physically defective to such an extent as to make them 
incapable of doing an amount of work required to entitle them to the minimum 
wage determined. The Minimum Wage Commission is not warranted in issu- 
ing such licenses to women incapacitated solely by reason of mental defects. 

You request my opinion as to whether your Commission is Tothe 
authorized to issue special licenses to women incapacitated by waE;e"com- 
age or mental defect, permitting their employment at less than i9i8 
the legal minimum wage fixed for women in their occupation, — — 
under the provisions of St. 1912, c. 706, § 9. 

Section 9 is as follows : — 

For any occupation in which a minimum time rate only has been 
established, the commission may issue to any woman physically de- 
fective a special license authorizing the employment of the licensee for a 
wage less than the legal minimum wage: provided, that it is not less than 
the special minimum wage fixed for that person. 



172 



OPINIONS OF THE ATTORNEY-GENERAL. 



This section, in my judgment, is to be construed in connec- 
tion with the other provisions of the act. The act provides 
for the determination of a minimum wage suitable for a female 
employee of ordinary ability in the occupation in question, and 
also suitable minimum wages for learners and apprentices and 
for minors below the age of eighteen years. I think it obvious 
that the Legislature intended to authorize your Board to issue 
special licenses to women who were physically defective, from 
any cause, to such an extent as to make them incapable of 
doing an amount of work required to entitle them to the mini- 
mum wage determined. Consequently, if a woman's physical 
powers have become impaired by age to such an extent, I am 
of the opinion that your Board is warranted in issuing to her a 
license in which a special minimum wage is fixed. 

Ordinarily, mental defects are not included within the term 
"physical defects," and I am of the opinion that you are not 
w^arranted in issuing such licenses to women incapacitated 
solely by reason of mental defects. 



To the Board 
of Labor and 
Industries. 
N 1918 
January 30. 



Employment of Minors — Selling Newspapers and prac- 
ticing Other Street Trades — Employment Certifi- 
cate. 

A boy between the ages of fourteen and sixteen, who has an employment certificate 
issued under St. 1913, c. 779, § 15, and who is in fact regularly and habitually 
engaged for at least six hours per day in the employment or business of selling 
newspapers or in the practice of other street trades, does not come within the 
compulsory provisions of section 1 of said act. The person whose duty it is to 
issue the employment certificate should be satisfied that the pledge or promise 
presented is made in good faith by or in behalf of a bona fide employer; if he is 
not so satisfied, he should decline to approve and file the pledge or promise, 
and refuse to issue the certificate. 

You request my opinion upon the following question : — 

Shall the selling of newspapers and the practice of street trades upon 
the public streets during school hours by boys between the compulsory 
school ages of fourteen and sixteen years be considered regular employ- 
ment for the granting of emplojonent certificates in accordance with the 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 

requirements of St. 1913, c. 779, § 1, even though the boy claims to be so 
engaged for at least six hours per day and presents a written promise for 
such emplo^Tnent? 

The section to which reference is made in this question 
relates merely to children upon whom school attendance is 
made compulsory. Among its other provisions it requires 
attendance of "every child under sixteen years of age who has 
not received an employment certificate as provided in this act 
and is not engaged in some regular employment or business for 
at least six hours per day." Thus, to be excused from attend- 
ance such a child must have received an employment certifi- 
cate and be actually "engaged in some regular employment or 
business for at least six hours per day." The nature of the 
employment or business is not specified. In my opinion, the 
statute intends to cover any legal employment or business in 
which the child is habitually engaged for at least six hours per 
day. There seems to be no intention to restrict the employ- 
ment or business in any way, or to confine it to the classes of 
employment mentioned in St. 1913, c. 779, § 15. 

Accordingly, in my opinion, if a boy between the ages of 
fourteen and sixteen has an employment certificate issued 
under section 15 of this statute, and is in fact regularly and 
habitually engaged for at least six hours per day in the em- 
ployment or business of selling newspapers or in the practice 
of other street trades, he does not come within the compulsory 
provisions of section 1. 

It should be noted that to be exempt from school attendance 
such a boy must have an employment certificate, and that, by 
section 16, this certificate cannot be issued before the person 
issuing it has received, examined, approved and filed a pledge 
or promise of employment signed by the employer or in his 
behalf, containing the detailed statements set forth in section 
16. If the person whose duty it is to issue the certificate is not 
satisfied that the pledge or promise presented is made in good 
faith by or in behalf of a bona fide employer, he should, of 
course, decline to approve and file it, and refuse to issue the 
certificate. 



173 



174 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Board 
of Parole. 

1918 
February 4. 



Board of Parole — Permits to be at Liberty — Issuance 

THEREOF TO InMATES OF THE StATE PrISON "WTIO HAVE 
BEEN TRANSFERRED TO THE PRISON CaMP AND HoSPITAL. 

The Board of Parole of the Massachusetts Bureau of Prisons has the authority to 
issue permits to be at liberty to inmates of the State Prison who have been 
transferred to the Prison Camp and Hospital, subject, however, to the provi- 
sions of St. 1911, e. 451. 

You request my opinion as to whether you may issue 
permits to be at hberty to inmates of the State Prison who have 
been transferred to the Prison Camp and Hospital. 

By St. 1904, c. 243, § 3, the Prison Commissioners were au- 
thorized to issue a permit to be at Hberty to any prisoner held 
at said camp, upon such terms and conditions as they should 
prescribe. By Gen. St. 1915, c. 141, all the powers of the 
Board of Prison Commissioners to release a prisoner from the 
Prison Camp and Hospital on permits to be at liberty were 
transferred and vested in the Board of Parole for the State 
Prison and the Massachusetts Reformatory. Gen. St. 1916, 
c. 241, § 1, provided that all the powers of the Board of 
Parole for the State Prison and Massachusetts Reformatory 
should be transferred and vested in the Board of Parole of the 
Massachusetts Bureau of Prisons. Thus all the powers to re- 
lease prisoners from the Prison Camp and Hospital are now 
vested in your Board. 

Under the provisions of Gen. St. 1916, c. 76, prisoners may 
be removed from the State Prison to the Prison Camp and 
Hospital. I think that the Legislature did not intend by the 
passage of this act to repeal in any way any of the general 
laws relating to the release of prisoners sentenced to the State 
Prison. The act of 1916, therefore, must be read in connec- 
tion with the provisions of law which were in effect at the time 
of the passage of the act relating to the release of prisoners 
from the State Prison. 

St. 1911, c. 451, § 1, provides that special permits to be at 
liberty from the State Prison may be granted to certain 
prisoners who have served at least two-thirds of the minimum 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 175 

term of their sentence, but in no event until such prisoner has 
served at least two and one-half years in said prison. 

Accordingly, I am of the opinion that you may release 
prisoners in the Prison Camp and Hospital who have been 
transferred thereto from the State Prison, subject, however, to 
the provisions of St. 1911, c. -151. 



State Board of Agriculture — Massachusetts Apple 
Grading Law — Liability for selling or distributing 
Adulterated or Misbranded Apples. 

Under the provisions of Gen. St. 1915, c. 261, known as the Massachusetts Apple 
Grading Law, a person who sells or distributes adulterated or misbranded ap- 
ples is not subject to the penalty imposed by section 14 of the aforesaid act if 
it appears that he acted in good faith solely as a distributor. The word "dis- 
tributor" is to be interpreted as meaning the middleman, and if he acts in good 
faith he must sell or distribute without knowing or having reasonable ground 
for believing that the packages of apples with which he is dealing have been 
packed in violation of law. 

If the apples in the possession of the middleman have been inspected by the State 
authorities, under the provisions of section 10, and he has been notified that 
they are not packed in accordance with law, he cannot, after such notice, be 
said to be acting in good faith, within the meaning of section 15 of the afore- 
said act. 

You request mv opinion with reference to certain questions To the Board 

^ •" ^ of Agriculture. 

which have arisen under Gen. St. 1915, c. 261, known as the pg^ruaVyig 
Massachusetts Apple Grading Law, relative to the liability of 
persons who purchase apples packed or marked in violation of 
law and later resell them after holding them in storage. 

This statute establishes certain standard grades for apples 
packed in Massachusetts, and provides for the manner in 
which such apples shall be packed and marked. It defines 
adulteration and misbranding within the meaning of the 
statute, and, by section 14, imposes a penalty upon "any 
person who adulterates or misbrands apples within the meaning 
of this act, or who packs, repacks, sells, distributes, or offers or 
exposes for sale or distribution, apples in violation of any pro- 
vision of this act." Section 10 provides that apples that have 
been in cold storage shall not be sold or distributed in closed 



176 OPINIONS OF THE ATTORNEY-GENERAL. 

packages until they have been inspected under rules and regu- 
lations to be prescribed by you. Section 15 provides as fol- 
lows : — 

No person who sells or distributes or offers or exposes for sale or dis- 
tribution apples adulterated or misbranded within the meaning of this 
act shall be deemed to have violated any of the provisions of this act, if 
it shall appear that he acted in good faith solely as a distributor, or if 
he shall furnish a guaranty signed by the person from whom he received 
the apples, with the address of such person, that the apples are not adulter- 
ated or misbranded within the meanmg of this act. In such case, the 
person from whom the distributor received the apples shaU be liable for 
the acts of the distributor who relied upon his guaranty, to the same ex- 
tent as the distributor would have been liable under the provisions of this 
act. 

You will note that the last-mentioned section excludes from 
liability for the penalty imposed by section 14 a person who 
sells or distributes adulterated or misbranded apples "if it 
shall appear that he acted in good faith solely as a distribu- 
tor." In my opinion, the word "distributor" is intended to 
refer to a person not a grower, who receives or purchases 
apples for the purpose of selling them to other dealers either on 
his own account or as an agent; in other words, it refers to 
the middleman, so called. By this section such a middleman is 
excused from liability if he sells or distributes in good faith. 
This seems to imply that he sells or distributes without know- 
ing or having reasonable ground for believing that the pack- 
ages of apples with which he is dealing have been packed in 
violation of law. It seems to me plain that, if you inspect the 
apples in his possession, under the provisions of section 10, and 
notify him that they are not packed in accordance with law, 
he cannot, after such notice, be said to be acting in good 
faith, within the meaning of section 15. 

Accordingly, in my opinion he will be liable to the penalty 
imposed by section 14, unless he is able to bring himself within 
the other provision of section 15, relating to a guaranty signed 
by the person from whom he received the apples. 



HENEY C. ATTWILL, ATTORNEY-GENERAL. 177 



War Service — Selective Service Act — Clerk of Dis- 
trict Court — Classification. 

Under the Selective Service Act and the rules and regulations made thereunder, 
the clerk of the District Court of Western Hampden is entitled to classification 
in Class V. 

You request my opinion as to whether or not the clerk of GowrMr. 
the District Court of Western Hampden is entitled to classifi- February 28. 
cation in Class V, under the Selective Service Act and the rules 
and regulations made thereunder, as a legislative, executive or 
judicial officer of the Commonwealth. 

The District Court of Western Hampden is established by 
R. L., c. 160. Section 9 of this chapter provides that clerks of 
district courts shall be appointed by the Governor, with the 
advice and consent of the Council, for a term of five years. 
Section 13 provides that — 

... If the office of clerk is established by law, the clerk may make 
and issue warrants, writs and processes, shall make all returns of the 
court, tax all bills of costs and receive all fines, forfeitures, fees and costs 
accruing from the business of the court in civil and criminal cases, in- 
cluding fees for blanks and copies. 

In performing these acts the clerk represents the Common- 
wealth as a whole, and exercises some portion of the sovereign 
power of the State, within the rule laid down in AUorney- 
General v. Tillingliast, 203 Mass. 539. 

Accordingly, I am of opinion that your question is to be 
answered in the affirmative. 



178 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Com- 
missioners of 
Massachusetts 
School Fund. 

1918 
March 5. 



Commissioners of Massachus:etts School Fund — Method 
OF Distribution of Income — 'Definition of "School 
Tax" and of "Whole Tax" — Figures to be used in 
arriving at Distribution. 

Under the provisions of St. 1903, c. 456, which directs the method of distribution 
of the income of the Massachusetts School Fund, the words "school tax" 
mean the amount appropriated for school purposes which is included by the 
assessors in making up the local tax rate. The "whole tax" rate of a city or 
town, as those words are commonly employed, is the rate made necessary by 
the inclusion of the State and county taxes. The figures to be used under the 
provisions of the aforesaid statute are those of the same calendar year as that 
in which was accumulated the income which is to be distributed. 

You request my opinion upon certain questions connected 
with the interpretation of St. 1903, c. 456, which directs the 
method of distribution of the income of the Massachusetts 
School Fund. 

One portion of this fund is to be distributed to certain 
towns "whose annual tax for the support of pubhc schools is 
not less than one sixth of their whole tax for the year, as fol- 
lows: — ^ Every town whose school tax is not less than one 
third of its whole tax shall receive a proportion of said re- 
mainder expressed by one third; every town whose school tax 
is not less than one fourth of its whole tax shall receive a pro- 
portion expressed by one fourth; every town whose school tax 
is not less than one fifth of its whole tax shall receive a pro- 
portion expressed by one fifth; and every town whose school 
tax is not less than one sixth of its whole tax shall receive a 
proportion expressed by one sixth." 

You desire my opinion as to the meaning of the terms 
"school tax" and "whole tax," as used in the quotation 
above. 

It is at the present time, and was at the time this method 
of distribution was first adopted (1893), the general practice 
for all sums to be raised by taxation in the various cities and 
towns, whether for State, county or local purposes, to be in- 
cluded in one tax levy. It is apparent, therefore, that the 
phrase "school tax" was not intended to be interpreted with 
strict literal accuracy, and must be considered to have been 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 179 

intended to mean the tax which would have been imposed in 
case all moneys raised by taxation for school purposes were 
raised by a special tax. 

In fact, the language used in the original statute (St. 1891, 
c. 178, § 1) provided for distribution to certain towns "whose 
annual tax rate for the support of public schools is not less 
than one sixth of their whole tax rate for the year." The 
omission of the word "rate" in the Revised Laws would not 
indicate an intention to change the meaning of the statute. 

The whole tax rate of a city or town, as those words are 
commonly employed, is the rate made necessary by the inclu- 
sion of the State and county taxes, even though a taxpayer 
has the right to have the amounts separated. See Boston Fish 
Market Corp. v. Commonwealth, 224 Mass. 31. 

You query whether the amounts received by a town from 
the Massachusetts School Fund and by reason of certain State 
aid for school purposes are an element to be taken into con- 
sideration in defining the term "school tax." So far as these 
sums are deducted from amounts which would otherwise be 
raised by taxation they are to be taken into account. In my 
opinion, it is only the amount appropriated for school purposes 
which is included by the assessors in making up the local tax 
rate which is to be considered as the school tax. 

Your second question is whether the above-mentioned 
figures should be those of the "preceding year," St. 1903, 
c. 456, § 2, provides that income accrued on the thirty-first 
day of December in each year shall be apportioned and the 
amounts paid on the twenty-fifth day of January thereafter. 
In my opinion, the figures to be used are those of the calendar 
year preceding the day of payment (January 25); or, in other 
words, those of the same calendar year as that in which was 
accumulated the income which is to be distributed. 



180 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Board 
of Conciliation 
and Arbi- 
tration. 

1918 
March 6. 



Board of Conciliation and Arbitration — Non-perform- 
ance OF Award. 

The non-performance of an award made by the Board of ConciUation and Arbitra- 
tion under St. 1909, c. 514, § 12, as amended by St. 1914, c. 681, does not sub- 
ject the non complying parties to the penalty contained in section 36 of said 
chapter 514. 

You inquire whether the non-performance of an award of 
your Board is an offence punishable under St. 1909, c. 514, 
§ 36, and if such non-performance is an offence, by whom or 
by what department complaint should be made. 

I assume that your inquiry is directed to that part of St. 
1909, c. 514, § 12, as amended by St. 1914, c. 681, which 
reads as follows : • — 

Said decision shall, for six months, be binding upon the parties who 
join in said application, or until the expiration of sixty days after either 
party has given notice in writing to the other party and to the board of 
his intention not to be bound thereby. 

I am of the opinion that this provision deals simply with the 
effect of the decision made by the Board upon an arbitration 
voluntarily entered into by the parties, and does not provide 
for a rule of conduct to be observed by the parties which sub- 
jects them, upon a breach thereof, to the penalty contained in 
section 36 of said chapter 514. 

I am confirmed in this view by the history of the provisions 
of the statute involved in your inquiry. Section 36 of said 
chapter 514 first appeared as section 70 of chapter 106 of the 
Revised Laws. It was evidently inserted by the commissioners 
to take the place of the following statutes: St. 1892, c. 410, 
§ 2, and St. 1894, c. 508, § 78. St. 1892, c. 410, was an act to 
prohibit the deduction of wages of employees engaged at 
weaving, and St. 1894, c. 508, was an act regulating the em- 
ployment of labor, section 78 of the latter act providing as 
follows : — 

Any person violating any provision of this act where no special pro- 
vision as to the penalty for such violation is made shall be punished by 
a fine not exceeding one hundred dollars. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 181 

St. 1909, c. 514, § 12, is a re-enactment of R. L., c. 106, § 3, 
as amended by St. 1904, c. 313, § 2. The provision in said 
section 12 that "said decision shall, for six months, be binding 
upon the parties who join in said apphcation, or until the 
expiration of sixty days after either party has given notice in 
writing to the other party and to the board of his intention 
not to be bound thereby," first appears in section 6 of chapter 
263 of the Acts of 1886. Neither said chapter 263 nor any 
amendment thereof contains any penalty for violation of any 
of its provisions. 

Criminal statutes are to be construed strictly, and it would 
be a violation of this principle to assume that, because St. 
1886, c. 263, and its amendments were subsequently grouped 
in R. L., c. 106, and later in St. 1909, c. 514, with the other 
provisions of law relating to labor, it was the intention of the 
Legislature to make the non-compliance of one of the parties 
to the decision of the Board in an arbitration a crime where 
such non-compliance was not a crime prior to such grouping. 

Accordingly, I am of the opinion that your question is to be 
answered in the negative. 



Commissioners on Fisheries and Game — Licenses to catch 
OR TAKE Lobsters. 

Licenses issued by clerks of cities and towns to catch or take lobsters, under the 
provisions of Gen. St. 1917, c. 312, § 2, give authority to catch or take lobsters 
in the waters of the Commonwealth lying within the county within which the 
city or town granting the license is situated, or in the waters of an adjoining 
county lying within three miles of the county in which said city or town is sit- 
uated. 

You request my opinion as to the construction to be placed 
upon that part of section 2 of chapter 312 of the General Acts 
of 1917 which provides that — 

The clerk of any city or town in the counties of Essex, Middlesex, 
Suffolk, Norfolk, Plymouth, Barnstable, Bristol, Dukes or Nantucket, 
situated on the shores of this commonwealth, shall, in the manner and 
subject to the provisions hereinafter set forth, grant hcenses to catch or 



missioners on 



182 OPINIONS OF THE ATTORNEY-GENERAL. 

take lobsters from the waters of the commonwealth withui three miles of 
the county within which the city or town granting the license is situated. 

I understand your question is directed to whether the license 
authorizes the holder to catch and take lobsters only within 
three miles of the shore line of the county within which the 
city or town granting the license is situated, or to catch and 
take lobsters in the waters of the Commonwealth in said 
county and also in an adjoining county if the lobsters are 
caught or taken within three miles of the county within which 
the city or town granting the license is situated, 

R. L., c. 20, § 1, provides that "the boundary line of coun- 
ties bordering on the sea shall coincide with the line of the 
commonwealth as defined in section three of chapter one" of 
the Revised Laws. Said section 3 is as follows: — 

The territorial limits of this commonwealth extend one marine league 
from its sea shore at extreme low water mark. If an inlet or arm of the 
sea does not exceed two marine leagues in width between its headlands, a 
straight line from one headland to the other is equivalent to the shore 
line. 

All of the waters of the Commonwealth, therefore, lying 
within three miles directly offshore are within the county, and 
if it was intended to restrict the catching and taking of lobsters 
to the waters of the Commonwealth within the county, it 
would have been unnecessary to have used the words "three 
miles of," and the intent of the Legislature would have been 
more clearly expressed by the omission of those words. On 
the other hand, it seems unlikely that the Legislature intended 
to prohibit the taking of lobsters within the county in the 
waters of the Commonwealth which might be more than three 
miles from the shore line. 

Accordingly^ I am of the opinion that the licensee is au- 
thorized to take or catch lobsters in the waters of the Com- 
monwealth lying within the county within which the city or 
town granting the license is situated, or in the waters of an 
adjoining county lying within three miles of the county in 
which said city or town is situated. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 183 



Industrial School of Shoemaking at Lynn — Cost of 
Establishment and Equipment — Cost of Maintenance 
AND Operation. 

To the extent of paying the cost of the establishment and equipment of the In- 
dustrial School of Shoemaking at Lynn, and raising by taxation annually such 
sums as may be needed for its maintenance and operation after it has been 
established and equipped, Spec. St. 1916, c. 174, is mandatory upon the city 
of Lynn. 

You request my opinion as to whether, upon acceptance by TotheCom- 
the voters of the city of Lynn of Spec. St. 1916, c. 174, it be- Education. 
came mandatory upon said city to establish, equip and maintain March_i2. 
an industrial school of shoemaking, subject to the approval of 
the Board of Education, in accordance with the provisions of 
St. 1911, c. 471. 

Spec. St. 1916, c. 174, provides that, upon acceptance of the 
act by a majority of the voters of the city of Lynn, the Gov- 
ernor, with the advice and consent of the Council, shall ap- 
point eight persons, residents of said city of Lynn, who, to- 
gether with the mayor of Lynn, shall be known as the Trustees 
of the Independent Industrial Shoemaking School of the City 
of Lynn. Section 3 of the act provides: — 

The said trustees are hereby authorized to determine the situation of 
the said school, subject to the approval of the board of education, and to 
expend annually for rent of suitable floor space for the school a sum not 
exceeding six thousand dollars until such time as it is deemed expedient 
to purchase, construct or alter a building for the use of the school. After 
the said school is established and equipped, the city of Lynn shall annually 
raise by taxation such sums as may be needed for its maintenance and 
operation. 

Under this section the trustees are given the power, subject 
to the approval of the Board of Education, to determine the 
situation of the school and to expend annually for rent of 
suitable floor space a sum not exceeding six thousand dollars, 
until such time as it shall be deemed expedient to purchase, 
construct or alter a building for the use of the school. The 
section further provides that after the school is established and 



184 OPINIONS OF THE ATTORNEY-GENERAL. 

equipped the city of Lynn shall annually raise by taxation 
such sums as may be needed for its maintenance and opera- 
tion. 

I think it plain that the trustees are authorized to incur lia- 
bility for rent of floor space so long as this liability does not 
exceed $6,000 annually, provided the situation has first been 
approved by the Board of Education. This expense is to be 
met in the first instance by the city of Lynn, a part thereof to 
be subsequently paid by the Commonwealth. 

When the school has been established and equipped, the city 
of Lynn is bound by law to raise annually by taxation such 
sums as may be needed for its maintenance and operation. 
By the provisions of section 4 the cost of establishing and 
equipping the said school is to be paid by the city of Lynn. 

The provisions of the act are somewhat indefinite as to who 
is to determine the equipment of the school, but I think any 
question that may be raised in relation thereto is met by sec- 
tion 5, which provides that the school established under this 
act is to be "established and maintained as an approved 
school, subject to the provisions of chapter four hundred and 
seventy-one of the acts of the year nineteen hundred and 
eleven, and of any amendments thereof." 

Section 4 of the last-mentioned act provides: — • 

Any city or town may, through its school committee or through a board 
of trustees elected by the city or town to serve for a period of not more 
than five years, and to be known as the local board of trustees for voca- 
tional education, estabfish and maintain independent industrial, agri- 
cultural and household arts schools. 

Section 8 provides : — 

Independent industrial, agricultural and household arts schools shall, 
■so long as they are approved by the board of education as to organiza- 
tion, control, location, equipment, courses of study, qualifications of 
teachers, methods of instruction, conditions of admission, employment of 
pupils and expenditures of money, constitute approved local or district 
independent vocational schools. Cities and towns maintaining such ap- 
proved local or district independent vocational schools shall receive reim- 
bursement as provided in sections nine and ten of this act. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 185 

Reading the two acts together, the intention of the Legisla- 
ture seems clear. The school is to be organized, equipped and 
maintained through a board of trustees consisting of the mayor 
and eight persons to be appointed by the Governor, subject to 
the approval of the Board of Education, as provided in St. 
1911, c. 471, § 8, the cost to be met in the first instance by the 
city of Lynn, reimbursement to be made by the Common- 
wealth to the extent provided by said chapter 471. 

It follows that, by Spec. St. 1916, c. 174, the trustees are 
empowered to establish the school at a place to be approved 
by the Board of Education so long as the rental for floor space 
does not exceed S6,000 annually, and to incur expenses on 
behalf of the city for its equipment, which the city is bound by 
law to meet and pay; and that, after the school is established 
and equipped, the city of Lynn is bound to raise annually by 
taxation such sums as are needed for its maintenance and 
operation. 

Accordingly, to the extent of paying the cost of the estab- 
lishment and equipment of the school and raising by taxation 
annually such sums as may be needed for its maintenance and 
operation after it has been established and equipped, the act, 
in my opinion, is mandatory upon the city of Lynn, and, to 
that extent, the answer to your question is in the affirmative. 



State Board of Charity — Charitable Corporation — 
Election of Officers — Voting by Proxy. 

A charitable corporation organized under tlie laws of Massachusetts cannot legally 

conduct an election of officers by mail only, without the assembly of the voters 

at a meeting. 
Members of a charitable corporation may legally vote by proxy for any purpose, 

including the election of ofhcers, provided the by-laws of the corporation so 

provide. 

You request my opinion upon the following questions : — To the 

1. Can a charitable corporation organized under Massachusetts laws iQis 
legally conduct an election of officers by mail only, without the assembly ^ ^:^1-1 ' 



of the voters at a meeting' 



186 OPINIONS OF THE ATTORNEY-GENERAL. 

2, Can members legally vote by proxy for any purpose, including the 
election of officers? 

1. It seems to be generally accepted law that a corporation 
cannot hold a valid meeting for the election of officers or other 
purpose except by assembly of the stockholders or members^ 
either in person or by proxy, at a meeting duly called. 1 
Thompson on Corporations, § 706; 10 Cyc. 323. The general 
reason for this rule is that each member has a right of consul- 
tation with the others, and the minority has a right to be 
heard by other members for the purpose of attempting, at 
least, to change their opinion. 

2. As to voting by proxy, R. L., c. 109, § 5, which is ap- 
plicable to all corporations organized under the laws of this 
Commonwealth except so far as its terms are inconsistent with 
the provisions of special statutes, provides that "every cor- 
poration may by its by-laws, except as otherwise expressly pro- 
vided, determine . . . the mode of voting by proxy." There 
is nothing in the general law relating to charitable organiza- 
tions which is inconsistent with such a by-law. 

Accordingly, I am of the opinion that members of such a 
corporation may legally vote by proxy for any purpose, includ- 
ing the election of officers, provided the by-laws of the par- 
ticular corporation so provide. 

If, however, the by-laws do not contain provisions for voting 
by proxy, such method is not permissible. 



Salaries — Probation Officer — District Court — Su- 
perior Court. 

A probation officer of a district court, who has been temporarily employed in con- 
nection with the probation work of the Superior Court during the disability of 
a probation officer of that court, is entitled to receive compensation from the 
county for the latter services. 

missKT" You request my opinion as to whether the probation officer 

Probation. ^£ ^ dlstrlct court, who has been temporarily employed in con- 
nection with the probation work of the Superior Court during 



April 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 187" 

the disability of a probation officer of that court, is entitled to 
receive compensation from the county for the latter services. 

In my opinion, R, L., c. 204, § 42, has no application to the 
question raised. Its main purpose is to prevent the officers 
specified from receiving fees or extra compensation for services 
performed as a natural or ordinary incident of their regular 
duties, but it does not forbid an officer to perform work out of 
the line of his regular duties which is not inconsistent with 
those duties, and does not interfere with their performance. 
Nor does it prevent him from obtaining proper compensation 
therefor. 

R. L., c. 217, § 92, provides: — 

The compensation of each probation officer and assistant probation 
officer of a police, district or municipal court shall be determined by the 
justice thereof, subject to the approval of the county commissioners, and 
shall be paid by the county, upon vouchers approved by said justice and 
the county commissioners, . . . 

As I understand it, the amount of time which the probation 
officers of the various district courts are required to devote to 
their work depends upon the number of cases which are re- 
ferred to them, and varies greatly in the different districts. I 
assume that their compensation also varies, and that it is 
fixed with due consideration of the amount of time they are 
required to devote to their duties. I am told that in a number 
of instances the probation officer of a district court has also 
been appointed probation officer of the Superior Court, and has 
been able to perform the duties of both offices. 

It seems to me that the question raised by your inquiry de- 
pends entirely upon the amount of time which the probation 
officer in question is required to devote to the work of the dis- 
trict court. His salary has doubtless been fixed by the justice 
of that court after due consideration of the amount of time 
which he is required to devote to his work. I see no reason 
why the time which the officer is not required to devote to the 
work of the district court is not his own, and why, if he 
chooses, he may not employ that time in probation work in_ 



188 OPINIONS OF THE ATTORNEY-GENERAL. 

some other court. He must not, however, neglect his regular 
duties, and must devote to them the full time required, as 
otherwise he will not be entitled to full compensation. 

The statute, however, provides that the compensation of the 
probation officers of the district courts shall be paid "upon 
vouchers approved by said justice and the county commis- 
sioners." If the probation officer in question has presented a 
proper voucher for his compensation as probation officer of a 
district court, that would seem to settle his right to receive 
pay for services rendered in that court. His right to receive 
that pay will establish the fact that he has fully performed the 
duties of that office, and I see no reason why his right to re- 
ceive compensation for additional services rendered to the 
county in any other capacity should be questioned. 



Weights and Measures — Kindling Wood, Sale of, w'ith- 
ouT Measure. 

The provisions of R. L., c. 57, § 78, do not forbid the selling or offering for sale of 
kindling wood without being measured by a sworn measurer, provided the wood 
is not offered as containing any specific quantity determined by cord measure. 

mtsskfn^r"^" ^ou havc rcqucstcd my opinion as to whether, in view of the 

Measures'*"'^ provisious of R. L., c. 57, § 78, kindling wood can be sold or 
April 9. offered for sale without being measured by a sworn measurer. 

The section to which you refer is as follows : — 

If firewood or bark which is exposed for sale in a market or upon a 
cart or other vehicle is offered for sale before it has been measured by a 
public measurer of wood and bark and before a ticket thereof signed by 
him has been delivered to the driver, certifjang the quantitj^ which the 
load contains, the name of the driver and the place in which he resides, 
the driver and owner shall for each load thereof severally forfeit five 
dollars. 

It is by no means clear that kindling wood is included within 
the term "firewood" as used in this statute. In view of the 
length of time this statute has been in force, it would seem 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 189 

more natural that it should apply to wood used for maintain- 
ing a fire than to wood consumed merely in the starting of a 
fire. However that may be, it is my opinion that this section 
applies merely to wood offered for sale, under the conditions 
and in the manner specified in the statute, by cord measure 
and when sold as an entire load. In my opinion, the statute 
does not apply to wood offered for sale in less than an entire 
load, and in no way forbids the sale of wood by any other 
method of measurement than by cord measure. It follows 
that this section does not forbid the selling of kindling wood 
by bag or basket, or even by the load when the latter is not 
offered as containing any specific quantity determined by cord 
measure. 



I 



War Service — State Aid — Dependents of Persons 

drafted into the military service brothers and 

Sisters of Half Blood — Stepbrothers and Stepsis- 
ters — Brothers and Sisters through Adoption. 

Under Gen. St. 1917, c. 179, brothers and sisters of half blood and brothers and 
sisters through adoption are entitled to State aid where actual dependency on 
a person drafted into the military service of the United States exists. 

Stepbrothers and stepsisters are not entitled to receive State aid under the statute 
referred to. 

I have received from you the following request for an TotheCom- 

. . missioner of 

opinion: state Aid 

and Pensions. 
1918 

Will you kindly give me your opinion as to the eligibility of brothers April ii. 
and sisters of half blood, stepbrothers and stepsisters and brothers and 
sisters through adoption to receive State aid under the provisions of 
Gen. St. 1917, c. 179, § 1. 

Section 1 of the statute referred to authorizes any city or 
town to raise money by taxation or otherwise, and, if neces- 
sary, to expend such money, through certain designated of- 
ficials, — 

for the benefit of the wife, widow, children under sixteen j^ears of age, or 
any child dependent by reason of physical or mental incapacity, or the 



190 OPINIONS OF THE ATTORNEY-GENERAL. 

actually dependent parents, brothers and sisters of any inhabitant of 
such city or town . . . who has enlisted ... or hereafter shall duly be 
enlisted, and who has been or shall be mustered into the military or naval 
service of the United States. . . . 

Brothers and sisters of half blood have from an early period 
in this Commonwealth been accorded equal rights of inherit- 
ance with those of whole blood. R. L., c. 133, § 2. 

Under the laws of this Commonwealth an adopted child 
stands in the same relation to a natural child of the adopting 
parent as if he were the natural child of such parent. R. L., 
c. 154, § 7. 

It would seem, therefore, that under Gen. St. 1917, c. 179, 
brothers and sisters of half blood and brothers and sisters 
through adoption are entitled to receive State aid where actual 
dependency exists. Your question, so far as it relates to step- 
brothers and stepsisters, is to be answered in the negative. 



Treasurer and Receiver-General — • Intoxicating Liquors 
— License Fees — Clubs. 

One-fourth of the fees received by a city or town from liquor Hcenses issued to clubs 
should be paid to the Treasurer and Receiver-General, under the provisions 
of R. L., c. 100, § 45. 



With reference to the letter sent to vou by the treasurer of 



To the 
Auditor. 

April 12. the town of Agawam I would say that from an examination of 

the history of R. L., c. 100, § 45, one-fourth of the fees received 

by a city or town from liquor licenses issued to clubs should be 

paid to the Treasurer and Receiver-General as therein provided. 

Pub. St., c. 100, § 14, provides: — 

The treasurer of a city or town shall pay to the treasurer of the com- 
monwealth one-fourth of all moneys received by him for licenses, within 
one month after he receives the same. 

Club licenses were first authorized by St. 1887, c. 206. St. 
1897, c. 233, § 1, provides as follows: — 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 191 

All treasurers of cities and towns in this Commonwealth shall, within 
thirty days after the receipt of moneys for liquor licenses granted by 
their several cities and towns, make a return of amounts so received to 
the treasurer of the Commonwealth, and at the same time shall pay to 
him twenty-five per cent, of the amount so received, in accordance with 
the provisions of section fourteen of chapter one hundred of the Public 
Statutes. 

This last act was never amended or changed, but when the 
commissioners compiled the Revised Laws they substituted 
therefor section 45 of chapter 100. You will note that the act 
of 1897 provided for money received from liquor licenses, but 
R. L., c. 100, § 45, changed the phraseology so that it should 
read, "money received for licenses for the sale of intoxicating 
liquors." 

It is plain that under the provisions of the act of 1897, 25 
per cent of the money received from club licenses was payable 
into the treasury of the Commonwealth, as well as money 
received for other liquor licenses. No reason was given by the 
commissioners in revising the laws for the change in the word- 
ing, and thus there appears to have been no intention on their 
part to change the law; neither is there anything to indicate 
that the Legislature intended any change. An interpretation 
of the present statute as excluding club licenses is, under the 
circumstances, not to be favored, and, accordingly, I advise you 
that one-fourth of the fees received from club licenses should 
be paid to the Treasurer and Receiver-General. 



192 OPINIONS OF THE ATTORNEY-GENERAL. 



Retirement — Supervisor of Loan Agencies — Removal — 
Refund — Pension. 

Under the provisions of the statutes governing the retirement system for the 
employees of the Commonwealth, where a person was appointed Supervisor 
of Loan Agencies on Jan. 1, 1912, and at the expiration of his three-year term 
of office failed to receive reappointment but was removed, and thereafter, in 
accordance with his request, his deposits as a member of the Retirement 
Association remained in the annuity fund for a period of two years, the only 
course open to him after that is to accept a refund of his payments. 

Any member of the association who ceases to be an employee after he has acquired 
voluntary retirement rights is not entitled to a refund of his payments. The 
only course open to him upon leaving the service is to exercise his retirement 
rights and to accept a pension. 

Jf°Ret1r?m/nt. You rcqucst my opinion with reference to certain questions 
Ap^ius. which have arisen as to the interpretation of the statutes gov- 

erning the retirement system for the employees of the Com- 
monwealth (St. 1911, c. 532, as amended). 

You refer to the case of a person who was appointed Super- 
visor of Loan Agencies on Jan. 1, 1912, and who, at the expira- 
tion of his three-year term of office as provided by the statutes,^ 
failed to receive reappointment but was removed. You state 
that, in accordance w^ith his request, his deposits as a member 
of the Retirement Association remained in the annuity fund 
for a period of two years, and that at the expiration of that 
period he refused to accept a refund and filed a request for 
retirement, which the Board refused to grant. 

For the purpose of dealing with your inquiry, I assume, 
without attempting to pass upon the matter, that the retire- 
ment system is intended to include public officers appointed by 
the Governor, with the consent of the Council, for definite 
terms. The section of the retirement act relating to refunds is 
as follows (section 6 (2)): — 

A. Refunds. — (a) Should a member of the association cease to be 
an employee of the commonwealth for any cause other than death, or to 
enter the service of the public schools as defined by paragraph (5) of 
section one of chapter eight hundred and thirty-two of the acts of the 
year nineteen hundred and thirteen, before becoming entitled to a pension, 
there shall be refunded to him all the money paid in by him under section 
five, (2) A, with such interest as shall have been earned thereon. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 193 

In my opinion, the phrase "before becoming entitled to a 
pension" must be interpreted as meaning before having become 
entitled to retire as a matter of right. It thus restricts refunds 
to persons who have not yet acquired voluntary retirement 
rights. 

The member to whom you refer had not been "in the con- 
tinuous service of the commonwealth for a period of fifteen 
years immediately preceding," and therefore, though over sixty 
years of age, he was not entitled to retire under section 3 (4). 
He does not come within section 3 (5). As he had reached the 
age of fifty-five years when the retirement system was estab- 
lished, his only rights arose under the following provision of 
section 6 (2) C: — 

Any employee who had already reached the age of fifty-five years on 
the date when the retirement system was established, and also became a 
member of the association may be retired under the provisions of the pre- 
ceding paragraph [intending to refer to paragraph (2) C [b) of section 6] 
without having completed the otherwise required service period of fifteen 
years. . . . 

It is plain that under this provision the person to whom you 
refer at no time was entitled to retire as a matter of right, but 
could be retired only by action of your Board under its dis- 
cretionary power. The only effect, however, of this last- 
mentioned provision is in certain cases to establish an exception 
to the retirement privileges granted by section 3 (4). Those 
privileges are conditioned upon having been in the "continuous 
service of the commonwealth for a period of fifteen years 
immediately preceding" retirement. The exception is merely 
that an employee who had reached the age of fifty-five years 
when the retirement system was established could be retired 
"without having completed the otherwise required service period 
of fifteen years." If so retired by action of your Board, he 
received the benefits of section 6 (2) C (b), but the only ex- 
ception was that he need not comj^lete the required service 
period. There is no exception to the requirement of "con- 
tinuous service." His service must be of such a character as 



194 OPINIONS OF THE ATTORNEY-GENERAL. 

regards continuity that if the fifteen-year period were com- 
pleted he would come within section 3 (4). Thus, his service 
must be continuous, though not extended over the full period 
required of younger men. 

It is provided, however, by section 1 (/), which was added 
to the retirement act by St. 1914, c. 568, that "the words 
'continuous service' mean uninterrupted employment, with 
these exceptions: a lay-off on account of illness or reduction of 
force, and a leave of absence, suspension or dismissal followed 
by reinstatement within two years." It follows from this pro- 
vision that in case of suspension or dismissal an employee does 
not absolutely lose his rights until the expiration of the two- 
year period within which he may be reinstated and regain his 
rights. When that period has expired, however, such an em- 
ployee has no further right to complete his period of continuous 
service. 

It follows, in my opinion, that after the service of the person 
in question had been terminated by removal, your Board had 
no power under the act to retire him until and unless he was 
reinstated in the service of the Commonwealth within two 
years from his removal. When that period expired without 
such reinstatement, the continuity of service was broken, and 
he had no rights under section 6 (2) C (b), even in the dis- 
cretion of your Board. Therefore, the only course now open to 
him is to accept a refund of his payments. 

Answering your remaining questions, it is my opinion that 
any member of the association who ceases to be an employee 
after he has acquired voluntary retirement rights is not en- 
titled to a refund of his payments. In my judgment, he has 
become "entitled to a pension," within the meaning of section 
6 (2) A, and thus no refund to him is authorized. The only 
course open to him upon leaving the service is to exercise his 
retirement rights and to accept a pension. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 195 



Constitutional Law — Maintenance and Distribution of 
Necessaries — ■ Power of General Court — Power of 
Cities and Towns — Statutes, Construction of. 

Under Article XLVII of the Amendments to the Constitution of the Common- 
wealth, although the General Court may in the first instance determine what 
rates are reasonable for the distribution of necessaries, its determination is 
subject to review by the courts. 

The power given to the General Court by this article of amendment can be exercised 
only when a time of war, public exigency, emergency or distress actually exists, 
but during these times the General Court may determine when this power 
is to be exercised. 

Cities and towns have no power to exercise the public functions declared in Article 
XLVII of the Amendments to the Constitution of this Commonwealth except 
as provided by the General Court. 

House Bill No. 1400, authorizing cities and towns to exercise the powers enumer- 
ated in Article XLVII of the Amendments to the Constitution of the Com- 
monwealth, is construed as not affecting powers of officials of the United 
States or of officials acting directly for the Commonwealth. 

You request my opinon on certain questions relative to To the 
House Bill No. 1400, hereinafter referred to. The questions Biiisjnthe 

^ _ ^ Third Reading. 

relate to Article XLVII of the Amendments to the Constitution, i^.i^^ 

' April 18. 

which is as follows : — 

The maintenance and distribution at reasonable rates, during time of 
war, public exigency, emergency or distress, of a sufficient supply of food 
and other common necessaries of life and the providing of shelter, are 
pubhc functions, and the commonwealth and the cities and towns therein 
may take and may provide the same for their inhabitants in such manner 
as the general court shall determine. |j 

The first clause of the amendment is a declaration that, dur- 
ing time of war, public exigency, emergency or distress, the 
maintenance and distribution at reasonable rates of a sufficient 
supply of food and other common necessaries of life and the 
providing of shelter are public functions. The purpose of the 
amendment is to authorize the raising of funds by taxation, in 
time of war or other public emergency, for the purpose of 
securing at reasonable rates a supply of food- and other com- 
mon necessaries of life for the inhabitants of the Common- 
wealth. Justification for the use of this power of taxation is a 
public exigency, emergency or distress which creates a situa- 



196 OPINIONS OF THE ATTORNEY-GENERAL. 

tion in which the inhabitants may not be able to obtain the 
necessaries of life at reasonable rates. Thus, where a public 
exigency or emergency arises of such a character that a suffi- 
cient supply of food or other common necessaries of life or of 
shelter cannot be or is not supplied at reasonable rates by 
private effort, or such as to create reasonable grounds for the 
belief that such supplies cannot or wdll not be furnished at 
reasonable rates by such effort, the exercise of the power is 
justified. The amendment, in my opinion, does not authorize 
the engaging in business at a profit, nor, on the other hand, 
does it justify a distribution of the necessaries of life at a loss, 
unless required to carry out the object of the amendment. 

It is to be borne in mind that the power of the Legislature 
to provide relief to those in want or distress, and to raise funds 
by taxation for that purpose, never has been questioned in this 
Commonwealth. The amendment goes further, and authorizes 
the raising of funds so that those who are not actually in 
want or distress may obtain the necessaries of life at reason- 
able rates. 

With these observations in mind I proceed to answer your 
specific questions. 

Your first question is: "Has the General Court any au- 
thority to determine what are reasonable rates?" 

The final determination of what are reasonable rates is a 
judicial question. Within reasonable limits, however, the 
General Court, in authorizing the exercise by the Common- 
wealth and the cities and towns of the power conferred by the 
amendment, may, in my opinion, prescribe conditions and 
regulations adapted to the securing of a reasonable use of that 
power. This may involve a control of the prices at which the 
supplies are to be sold, and may, in the first instance, involve 
a determination by the General Court of what, in its judg- 
ment, are reasonable rates. The action of the General Court 
in this respect will not lightly be disturbed by the courts. If 
there is any sound basis for the judgment of the General Court, 
in my opinion it will be upheld. 

I am not sure as to your purpose in asking this question, but 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 197 

I assume it is occasioned by the provision in the bill that the 
supplies "shall, so far as practicable, be sold, furnished or pro- 
vided at rates calculated to cover all costs and charges con- 
nected with the particular undertaking or service." I am of 
the opinion that this provision does not undertake to determine 
what are reasonable rates. As I have before stated, the object 
of the amendment is to insure the distribution of a sufficient 
supply of necessaries at reasonable rates, and it contemplates 
that it may be necessary on the part of the Commonwealth 
and the cities and towns therein, in order to accomplish this 
object, to acquire necessaries and distribute them in compe- 
tition with others. In order to obtain this result it may some- 
times be necessary to sell the supplies to the communities at 
less than the cost thereof. On the other hand, ordinarily it 
would seem reasonable to expect that they could be sold at a 
price sufficient to cover the cost, and thus relieve the general 
taxpayers of any burden. The provision in the bill simply 
directs the community, in the exercise of the power, to sell, so 
far as is practicable, the supplies at a price to cover the cost 
thereof. 

Your second question is: "Has the General Court any 
authority to define what is meant by 'time of war, public 
exigency, emergency or distress'?" 

Obviously, the General Court cannot declare it to be a time 
of war when there is no war, nor can it declare a public 
exigency, emergency or distress to exist when none exists. On 
the other hand, it may determine when and in what manner 
the power may be exercised in time of war, and it may define 
the kind of public exigency, emergency or distress in which the 
power may be exercised. In other words, it may limit the use 
of the powder to certain wars, exigencies, emergencies or times 
of distress. 

Your third cj[uestion is: "If the General Court makes any 
provisions either as to rates or as to definition of terms will 
these provisions be enforced by the courts?" 

The answer to this question is dependent upon the character 
of the provisions. Without further information as to what 



OPINIONS OF THE ATTORNEY-GENERAL. 

provisions you have in mind I am unable to answer this ques- 
tion other than in a general way. In a general way your 
question is answered by my answers to your other questions. 

Your fourth question is: "Whether a bill passed by the 
General Court, authorizing cities and towns to provide the 
common necessaries of life, etc., gives to the cities and towns 
any greater authority than they now have under the Constitu- 
tion?" 

This question is to be answered in the affirmative. The 
cities and towns have no power to exercise the public functions 
declared in the first part of the amendment except as is pro- 
vided in the last part of the amendment; that is, in such 
manner as the General Court shall determine. The mere fact 
that an undertaking can be sustained as a public function does 
not warrant a city or town in carrying on the undertaking. 
There are now many public functions that they cannot per- 
form without authority from the General Court. If the Gen- 
eral Court fails to prescribe the manner in which the public 
functions declared in the amendment are to be performed, the 
cities and towns have no authority to perform them. 

Your fifth question is: "If the General Court fails to pass 
any bill in regard to this matter will the cities and towns have 
authority to act by virtue of the Constitution?" 

This question I have already answered in the negative in my 
answer to your previous question. 

Your sixth question is: "How much is included by the 
words 'in such manner as the General Court shall determine,' 
in Article XLVII of the Amendments to the Constitution?" 

These words, in my opinion, are comprehensive, and, within 
the scope of the power authorized by the amendment, the 
General Court has full control over the manner in which the 
power or any part thereof shall be exercised by the cities and 
towns. It is obvious that the General Court cannot authorize 
the cities and towns to exercise greater powers than are au- 
thorized by the amendment or to exercise them in a manner 
other than that prescribed by the amendment; but in pre- 
scribing the manner in which the power may be exercised it 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 199 

may, in my judgment, impose restrictions and limitations upon 
its exercise. 

In your seventh question you request my opinion as to 
whether the addition of a proposed amendment will change 
the effect of the bill in any way, and if so, to what extent. 
The proposed amendment is as follows : — 

Nothing in this act shall be construed to interfere with the operation 
of the statutes or regulations of the United States or of this state in re- 
gard to the conservation and distribution of food or other necessaries of 
hfe herein mentioned, or the powers and duties of the administrators 
duly appointed to carry out the provisions of such statutes or regula- 
tions. 

The part of the proposed amendment relating to the statutes 
or regulations of the United States, or the lawful acts of duly 
appointed oflBcers thereof, if adopted, in my opinion would 
have no effect. Without this provision the bill will be con- 
strued "with reference to the powers and authority of the 
superior government, and not be deemed as invading them un- 
less such construction is absolutely demanded." Common- 
wealth V. Gagne, 153 Mass. 205; Attorney-General v. Electric 
Storage Battery Co., 188 Mass. 239. The amendment is equally 
unnecessary and of no effect in so far as it might be claimed 
that the bill interferes with the exercise by the Commonwealth, 
acting through its food administrators or other officials, of 
powers in the conservation and distribution of food or other 
necessaries of life. Acts of the General Court authorizing the 
exercise of powers by cities and towns are to be construed as 
not invading the powers of officials acting directly for the 
sovereign in relation to such powers, unless such an intention 
by the General Court is clearly apparent from the act. Teas- 
dale V. Newell Construction Co., 192 Mass. 440. In so far, 
therefore, as the proposed amendment relates to powers exer- 
cised by officials of the United States, or powers exercised by 
officers acting directly for the Commonwealth, I am of the 
opinion that the proposed amendment is unnecessary and would 
be of no effect. 



200 OPINIONS OF THE ATTORNEY-GENERAL. 



Bureau of Statistics — Cities and Towns — Serial Bond 
OR Note Issue — Temporary Loan. 

Under the provisions of St. 1913, c. 719, § 9, a temporary loan can be made in 
advance of each of several loans which a town treasurer, with the approval 
of the selectmen, is authorized to make under a vote of the town. 

The Director of the Bureau of Statistics has authority to certify notes issued in 
anticipation of a serial bond or note issue, as authorized by St. 1913, c. 719, 
§ 9, when the loans are made from time to time covering a period of more than 
one year. 



B^eauof You have requested my opinion as to whether you may 

Statistics. properly certify notes issued in anticipation of a serial bond or 

^fliii?- note issue, as authorized by St. 1913, c. 719, § 9, when the 

loans are made from time to time covering a period of more 

than one year. 

In my opinion, your question is dependent upon the vote of 
the town authorizing the loan. Your question, I understand, 
arises in connection with the raising of money for the building 
of a schoolhouse in Norwood under a vote of the town, in part 
as follows : — 

And that the town treasurer and collector of taxes, with the approval 
of the selectmen, be and hereby is authorized and directed to borrow a 
sum or sums of money in the aggregate not exceeding $250,000, and to 
issue therefor notes of the town subject to the provisions and limitations 
of chapter 719 of the Acts of 1913 and amendments thereto. 

This vote, obviously, authorized the treasurer, with the ap- 
proval of the selectmen, from time to time to borrow sums of 
money so long as the aggregate of the sums did not exceed 
$250,000. Under the vote the treasurer and the selectmen 
were authorized to issue different series of notes of the town, 
maturing at different times, so long as none of the notes ma- 
tured at a period of time beyond that prescribed by said 
chapter 719. 

By St. 1913, c. 719, § 9, it is provided that if a city or town 
votes to issue bonds, notes or certificates of indebtedness in 
accordance with the provisions of law, the officers authorized to 
issue the same may, in the name of such city or town, make a 
temporary loan for a period of not more than one year, in 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 201 

anticipation of the money to be derived from the sale of such 
bonds, notes or certificates of indebtedness, and may issue 
notes therefor; but the time within which such securities shall 
become due and payable shall not be extended, by reason of 
the making of such temporary loan, beyond the time fixed in 
the vote authorizing the issue of such bonds, notes or certifi- 
cates of indebtedness. This section, in my judgment, author- 
izes the raising of money temporarily in anticipation of a per- 
manent loan to be later made in place thereof. The temporary 
and the permanent loan are to be treated as one loan in esti- 
mating the time within which the securities are to mature, when 
given for the permanent loan which takes the place of the 
temporary loan. 

Your question resolves itself to this: Can a temporary loan 
be made in advance of each of the several loans which the 
treasurer, with the approval of the selectmen, is authorized to 
make under the vote? 

I am of the opinion that this can be done. There seems at 
be no sound reason why the statute should be interpreted so 
limiting the town to making a temporary loan in anticipation 
of the first loan it is proposed to negotiate under the authority 
of the vote. Such an interpretation would work to the disad- 
vantage of the town, as it would tend to the borrowing of 
more money than was actually needed at the time, and a con- 
sequent imposition of unnecessary interest charges upon the 
town. Such a result I cannot believe was contemplated by the 
Legislature. 



Taxation of Property of the Commonwealth — Sidewalk 
Assessment. 

The Commonwealth is not liable for a sidewalk assessment levied by a city for a 
sidewalk constructed in front of an armory owned by the Commonwealth in 
that city. 

You have requested my opinion as to whether the Common- To the 
wealth is liable for a sidewalk assessment levied by the city of i9i8 

May 4. 

Brockton for a sidewalk constructed in front of an armory 

owned by the Commonwealth in that city. 



202 OPINIONS OF THE ATTORNEY-GENERAL. 

It is a general principle of law that the Commonwealth is 
not liable for taxes unless there is some express legislative 
enactment to that effect. Boston Fish Market Corpn. v. 
Boston, 224 Mass. 31, 34. In that case the court said: — • 

Naturally, and apart from express enactment or plain implication, 
property of the State is not subject to taxation. Instrumentalities of 
government are not deemed ordinarily subject to taxation in any form. 

See Corcoran v. Boston, 185 Mass. 325; Essex County v. Salem, 
153 Mass. 141. 

There is no language in the statutes authorizing assessments 
upon abutters of a portion of the cost of construction of a side- 
walk which indicates any intention to depart from this general 
rule. In fact, it is provided that the collection of such assess- 
ments "may be made in like manner as demands for the pay- 
ment of taxes, and sales for the non-payment of such assess- 
ments or charges and all proceedings connected therewith shall 
be upon the same notices thereof, and shall be otherwise con- 
ducted in the same manner as sales for non-payment of taxes." 
R. L., c. 49, §§ 22, 45. 

Accordingly, there seems to be no reason for considering that 
a different rule should be applied in the case of sidewalk 
assessments from that applicable to taxes in general. 

I am of the opinion that the Commonwealth is not liable for the 
assessment mentioned. 



Municipal Government — Refusal of Assessors to act — 
Power to fill Vacancies. 

A board of selectmen has no authority to accept the resignation of a board of 
assessors, which resignation can become effective only upon acceptance by 
the voters of the town in a town meeting duly called for that purpose. 

Under St. 1913, c. 83.5, § 426, if there are actual vacancies in a board of assessors, 
or if the assessors refuse to act, the county commissioners have the power to 
appoint three or more inhabitants of the county to act as assessors. 

Tax*05m- You havc Tcquestcd my opinion concerning a situation which has 

mi^ss^oner. ariscu iu the town of Maynard owing to the fact that two of the 

^!!Li' three members of the board of assessors have signified to the 

board of selectmen their intention and desire to resign, and have 

refused to act further as members of the board of assessors. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 203 

I find no provision in the statutes relating to or permitting 
the resignation of assessors or similar town ofiicers in this 
manner. In my opinion, the selectmen have no authority to 
accept their resignation, which can become effective only upon 
acceptance by the voters of the town in a town meeting duly 
called for that purpose. 

As I stated to you in an opinion rendered April 18, 1917, it 
is my opinion that St. 1913, c. 835, § 429, has no application 
to vacancies in boards of assessors, and, accordingly, even if 
such vacancies existed in the present case, they could not be 
filled by the joint action of the selectmen and the remaining 
member of the board of assessors. 

The facts stated seem to me plainly to w^arrant action by 
the county commissioners under section 426 of said chapter 
835. That section applies not merely to actual vacancies in 
the board of assessors, but to aU cases wdiere for any reason 
the assessors are failing to perform the duties imposed upon 
them by law. If two of the assessors of the town continue in 
their refusal to act, it is my opinion that, under the last- 
mentioned section, the county commissioners of the county of 
Middlesex are authorized to appoint three or more inhabitants 
of the county to act as assessors. If they take such action, I 
see no reason why they cannot appoint as one of the members 
of the board to be designated by them the third assessor, who 
has not refused to perform his duties. 



Constitutional Law — Legislature — Delegation of 
Legislative Power — ■ Size of City Council. 

It is unconstitutional for the Legislature to delegate to the voters of any city the 
unrestricted right and power to determine the size of its city council. 

In accordance with your request, I have examined House To the 
Bill No. 479, entitled "An Act to provide for a home rule on cities. 
charter for cities, giving particular consideration to section 12. May i4 . 

Under the provisions of that section and the other related 
provisions of the bill, a city which adopts the form of govern- 
ment prescribed by this bill would, without any action by the 



204 OPINIONS OF THE ATTORNEY-GENERAL. 

General Court, determine the number of its eouncilmen. It is 
provided that the petition for the adoption of this form of 
government shall state that one councilman is to be elected 
from each ward, and the remainder, the number to be deter- 
mined by the persons preparing and submitting the petition, 
are to be elected at large. It is thus left to the petitioners, in 
the first instance, without limitation, to determine how many 
eouncilmen at large shall be proposed for approval by the city. 
If the city then votes to adopt the proposed form of govern- 
ment, the number of eouncilmen at large stated in the petition 
becomes fixed as the number of eouncilmen to be chosen, so 
long as this form of government remains in force. It would 
thus be within the power of the city to adopt a council varying 
in size from one for each ward into which the city was divided, 
with no upper limit whatever. Under our Constitution it is 
the duty of the General Court to determine the form of 
government which may be adopted by any city in the Com- 
monwealth. In my opinion, it is an unconstitutional delega- 
tion of power for it to leave to the voters of any city the 
unrestricted right to determine the size of its city council. Ac- 
cordingly, in my judgment, the provisions of section 12 and 
the other related provisions of this proposed act would be un- 
constitutional if enacted. 



Constitutional Law — Educational Institutions — Tui- 
tion — Appropriation of Funds for. 

Under Article XLVI of the Amendments to the Constitution of this Common- 
wealth it still remains unconstitutional for cities and towns to appropriate 
funds for the maintenance of an academy not under the order and superin- 
tendence of the school committee, or to pay the tuition of pupils resident in 
such town and attending such academy. 

It is unconstitutional for cities and towns to appropriate funds to reimburse parents 
for tuition they may pay for pupils attending a school of their own choice, 
such choice including an academy not under the order and superintendence 
of the school committee. 

m?s8iJfnM°"' You request my opinion as to whether, after Oct. 1, 1918, 
Education. ^^^^ Article XLVI of the Amendments to the Constitution be- 
^.^^- comes effective, it will be constitutional for a town to expend 

money for any one of the following purposes : — 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 205 

1. To appropriate funds for the maintenance of an academy not under 
the order and superintendence of the school committee; or — 

2. To pay the tuition of pupils resident in such town and attending 
such an academy; or — 

3. To reimburse parents for tuition that they may pay for pupils 
attending a school of their own choice, such choice including such an 
academy when the parents so elect. 

On March 18, 1896 (I Op. Atty.-Gen. 319), my predecessor, 
in an opinion rendered to the Senate, declared that, by reason 
of the provisions of Article XVIII of the Amendments to the 
Constitution, it was unconstitutional for a town to grant and 
vote money to pay the tuition of children attending an academy 
in the town or to pay the tuition of children attending an acad- 
emy outside of the town. This opinion w^as based upon the 
ground that such an expenditure, being for the education of the 
children of the town, was an expenditure of money "raised by 
taxation in the towns and cities for the support of public 
schools," and that therefore, by Article XVIII, it could be "ap- 
plied to, and expended in, no other schools than those which 
are conducted according to law, under the order and superin- 
tendence of the authorities of the town or city in which the 
money is to be expended." 

I see no reason for disagreeing with this opinion. When 
Article XLVI of the Amendments to the Constitution becomes 
effective, it takes the place of Article XVIII, but it plainly 
gives no broader powers to cities and towns with reference 
to the expenditure of moneys appropriated for educational 
purposes than they had under the earlier article. It seems 
to me plain, therefore, that under the later amendment cities 
and tow^ns will have no constitutional right to appropriate 
funds for the maintenance of an academy not under the order 
and superintendence of the school committee, or to pay the 
tuition of pupils resident in such tow^n and attending such an 
academy. 

It seems to me to follow, with equal clearness, that they will 
have no constitutional right to reimburse parents for tuition 
they may pay for pupils attending a school of their own choice 
when that choice includes such an academy. For the purpose 



206 



OPINIONS OF THE ATTORNEY-GENERAL. 

of enforcing the provisions of the Constitution under discus- 
sion, the substance, and not the mere form of the transaction, 
must be considered. The money in fact will go from the treas- 
ury of the town to that of the academy, whether the parents 
be required to make the payment out of their own pockets in 
the first instance or not. In my judgment, it would be a mere 
subterfuge to hold that the town was authorized to reimburse 
the parents for tuition paid by them in cases where it had no 
constitutional authority to make the payment direct to the 
academy in the first instance. 



Insurance — Circumstances under which Agreement by 
Automobile Association to furnish Attorney or 

GUARANTEE CrEDIT MAY NOT BE CONTRACT OF INSURANCE. 

An agreement by an automobile association to furnish attorney's services, or to 
guarantee the credit of a member under certain conditions up to $25, is not 
a contract of insurance; but an agreement to reimburse a member for reason- 
able charges which he may be obliged to pay to an attorney is a contract of 
insurance. 

Insurance You havc rcqucstcd my opinion as to whether any features 

Commissioner. , • i • n i i • ^ i i i -i t i 

191S contamed m a contract or membership of the Automobile Legal 

— — Association involve insurance. 

Under this contract the association agrees to furnish the 
member with the services of its attorneys to defend civil and 
criminal complaints and to furnish advice. It further agrees 
that if "the services of said attorneys cannot be secured 
promptly, or if the association has no regularly appointed at- 
torney at the place where needed by said member," then the 
member may employ any attorney he desires, and the associa- 
tion will reimburse the member for reasonable charges paid. 

In accordance with opinions rendered to your department by 
former Attorneys-General, one of which appears in I Op. Atty.- 
Gen. 544, this agreement, so far as it provides for furnishing the 
services of the association's attorneys, is a contract of service 
rather than of insurance; but the agreement to reimburse the 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 

member for reasonable charges which he may be obliged to 
pay does constitute insurance. The association assumes the risk 
of the member's requiring legal services because of the institu- 
tion of proceedings against him, and agrees to reimburse his 
loss on that account. I see no reason for departing from the 
rule applied in those opinions. 

In my opinion, the so-called credit guarantee in the form 
submitted does not constitute an insurance contract, nor does 
the issuance of such contracts constitute the transaction of an 
insurance business. 

The association agrees with the member that it will "guaran- 
tee the credit of said member at any hotel or garage once 
during said membership year for a sum not to exceed S25, as 
per coupon hereto attached." 

This agreement cannot be considered insurance, since it in- 
volves no risk or hazard which is insured against, nor, employ- 
ing the words of the statutory definition, the destruction, loss 
or injury of something in which the member has an interest. 
The determination of the member to use the guarantee coupon 
depends entirely upon his own volition. 

The guarantee coupon attached to the policy states the 
obligation of the association in these words: — 

I, , address, , 

hereby acknowledge my indebtedness to , 

address, , 

in the sum of $ , and agree to pay the same within thirty 

days from this date, 

Signature of Debtor 

The Automobile Legal Association , . . hereby guarantees the pay- 
ment of this account up to $25, provided notice by the creditor is mailed 
to the association at once, and also provided that if the indebtedness is 
not paid by the debtor within thirty days the creditor will make demand 
on the association for payment within thirty days thereafter, accom- 
panied by an itemized bill. 

The member is undoubtedly authorized, as agent of the as- 
sociation, to fill in the blanks in the above coupon and deliver 
the instrument to the creditor. It may be suggested that this 



207 



208 OPINIONS OF THE ATTORNEY-GENERAL. 

new contract so made between the association and the hotel 
or garage owner is one of insurance. In many respects it is 
similar to the business of credit insurance companies. 

However, I am of the opinion that it is to be regarded rather 
as an ordinary contract of guaranty than as insurance, and for 
the same underlying reason stated above. The liability of the 
Automobile Legal Association is not dependent upon the de- 
struction, loss or injury of anything in which the hotel keeper 
has an interest, nor upon any risk or hazard, as those words 
are employed in insurance matters. It is dependent upon a 
contingency, to wit, non-payment by the debtor within thirty 
days. But it is not true that all contracts dependent upon a 
contingency constitute insurance contracts, but only those de- 
pendent upon the limited class of contingencies which involve 
a risk of loss to the assured. 

An agreement, for a consideration, to pay a certain sum of 
money to another on July 1 next if there should be a thunder 
shower upon that day would constitute a gambling contract,, 
not a contract of insurance; while an agreement to pay a sum 
in the event that the other party should apprehend the perpe- 
trator of a crime would also be dependent upon a contingency, 
but not such as to constitute a contract one of insurance. 

Ordinary credit insurance contracts do, nevertheless, involve 
an insurable risk, since they are based on the destruction or 
loss of credit of the customers of the assured. The liability in 
such cases is generally limited to losses arising from sales to 
persons of apparently sound credit who have later been ascer- 
tained to be insolvent. 

Under the contract in the present case the liability of the 
association is not dependent upon such a loss of credit, but is 
absolute upon the lapse of thirty days, subject to the stipu- 
lated notices. 

For the reasons stated I am of the opinion that the contract 
referred to is not open to objection upon this ground. 



HENKY C. ATTWILL, ATTORNEY-GENERAL. 209 



War Service — State Aid — Dependents of State Em- 
ployee WHO, UPON HIS Death, was in the Military 
Service of the United States. 

Under the provisions of Gen. St. 1917, c. 301, the dependents of a deceased em- 
ployee who died in the military service of the United States are entitled to be 
paid only the amount which the employee was entitled to receive at the time 
of his decease. 



the 



You request my opinion as to the amount which the de- To 
pendents of a deceased employee are entitled to receive from Receiver- 



Section 1 of that act is as follows : — ■ 

There shall be allowed and paid, out of the treasury of the common- 
wealth, to every employee of the commonwealth who has been or is here- 
after mustered into the military or naval service of the United States 
during the present war, an amount equal to the difference between the 
compensation received by him from the United States, plus the compen- 
sation received as extra military pay, received from the commonwealth, 
and the amount which he was receiving from the commonwealth at the 
time when he was mustered in. The said payments shall continue so long 
as he continues in the military or naval service of the United States, but 
shall cease one month after the termination of the war. In case of his 
death in the said service his widow, minor children, parents or dependents 
shall receive the said sum until the termination of the war. 

The first portion of this section establishes the method of 
determining the amount which an employee of the Common- 
wealth who is mustered into the military or naval service of 
the United States is to receive during the continuation of the 
war, provided he remains in that service. The last sentence is 
as follows : — 

In case of his death in the said service his widow, minor children, 
parents or dependents shaU receive the said sum until the termination of 
the war. 

This provides for the payment of "the said sum" to the bene- 
ficiaries named, in case of the employee's death in the service. 
These words seem to me to refer back to the amount estab- 
lished by the earlier portion of the section, and, in my judg- 



General. 

1918 
May 28. 



210 OPINIONS OF THE ATTORNEY-GENERAL. 

ment, should be interpreted as authorizing the payment to the 
beneficiaries only of the amount which the employee was en- 
titled to receive at the time of his decease. In my opinion, 
this amount should not in any manner be increased after the 
decease of the employee, and should not be diminished by any 
consideration of insurance or similar benefits which may be- 
come payable to the beneficiaries on account of such decease. 



Constitutional Law — Registeation of Certain Aliens — 
Registeation Fee — Treaties. 

A proposed bill requiring "every male alien twenty years and over, unless enrolled 
in the military or naval service of the United States, who has resided in this 
commonwealth for twelve months prior to the first day of May in the current 
year," to register with the city or town clerk of his residence and file a written 
statement of certain facts concerning his history, and requiring that " said 
statement shall be accompanied by a registration fee of five dollars," is incon- 
sistent with the provisions of treaties entered into between the United States 
and various other nations. Treaties entered into by the United States pro- 
tect resident aliens against the imposition of fees and excises because of their 
alienage. Therefore, such a bill as proposed, if enacted, would be unconstitu- 
tional and void. 

of^Repre-""**' I acknowledge the receipt of an order from the House of 
sena^nes. Representatives in the following form: — 

May 28. ^ 

Ordered, That the House of Representatives hereby requests the opinion 
of the Attornej^-General on tlie following question of law: Would Senate 
Bill No. 321 of the current year, being "An Act to provide for the regis- 
tration of certain aliens," if enacted into law be valid and in accordance 
with the provisions of the Constitution of the Commonwealth, and the 
Constitution, laws and treaties of the United States? 

The important sections of the bill in question are as follows : ■ — • 

Section 1. Every male alien, twenty years and over, unless enrolled 
in the military or naval service of the United States, who has resided in 
this commonwealth for twelve months prior to the first day of May in 
the current year, shall, between the first and twentieth days of May in 
said year or within such further time not exceeding thirty daj'-s as the 
city or town clerk may for good cause allow, file with the clerk of the city 
or town wherein he resides, upon blanks to be furnished by said clerk, a 
written statement setting forth his name, age, residence by street and 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 211 

number, his employment and place of business, place of birth, port or 
point of entry into the United States and date. Said statement shall be 
accompanied by a registration fee of five dollars. On or before the first 
day of July in the current year the proceeds of all such registration fees 
received by the city or town, less the expense to the city or town of con- 
ducting said registration, to be approved by the treasurer and receiver 
general, shall be paid into the treasury of the commonwealth. 



Section 3. Failure on the part of any alien designated in section one 
to comply with the provisions thereof shall be punished by a fine of not 
less than twenty-five dollars to the use of the commonwealth. 

The proposed bill contains two main features. It requires 
"every male alien, twenty years and over, unless enrolled in 
the military or naval service of the United States, who has 
resided in this commonwealth for twelve months prior to the 
first day of May in the current year," to register with the city 
or town clerk of his residence and file a written statement of 
certain facts concerning his history. Failure to comply with 
this requirement subjects the alien to a fine of "not less than 
twenty-five dollars." The bill then provides: "Said statement 
shall be accompanied by a registration fee of five dollars." 

In my opinion, the registration feature of this bill, if enacted 
into law, would be valid, at least in time of war, as a reason- 
able police regulation in the interest of the public safety. In 
time of war it is vital that it be publicly known what residents 
of the community are alien enemies. Furthermore, I am of the 
opinion that it cannot be said that the General Court would 
not be warranted in concluding that aliens who are subjects of 
neutral or even friendly nations are more likely than citizens 
to become involved in unfriendly or hostile acts or enterprises. 
The registration requirement of this bill, in providing for a 
public record in time of war of the facts specified regarding 
persons who are likely to be a source of danger to the com- 
munity, seems to me a measure reasonably directed toward 
the preservation of the public safety. 

The difficulty with the proposed act arises from the require- 
ment of the registration fee of $5. The bill in its present form. 



212 OPINIONS OF THE ATTORNEY-GENERAL. 

as passed to be engrossed in the Senate, seems to indicate that 
it is intended, in part at least, to be a revenue measure. 
Section 1 closes with the following provision: — 

On or before the first daj^ of July in the current year the proceeds of 
all such registration fees received by the city or town, less the expense to 
the city or town of conducting said registration, to be approved by the 
treasurer and receiver general, shall be paid into the treasury of the 
commonwealth. 

Whether the amount of money to be realized by such a fee 
could be regarded as not disproportionate to the financial 
burden imposed by the registration upon the Commonwealth 
and its cities and towns is, in the first instance, a legislative 
question. The judgment of the General Court would not 
lightly be set aside by the courts. If this fee can be deemed 
to bear a reasonable relation to such cost, it would then be 
imposed in connection with or as a part of a valid police regu- 
lation, and, in that event would not, in my judgment, be in 
violation of the provisions of the Fourteenth Amendment to 
the Federal Constitution, prohibiting the denial of the equal 
protection of the laws. Whether such a fee can be imposed 
under the Constituticn of the Commonwealth, in view of the 
fact that it would in no way be connected with any privilege 
granted by the laws of the Commonwealth, is a grave ques- 
tion. It is unnecessary now to consider that matter, since, in 
my opinion, in any event, the requirement of this fee, what- 
ever its character, is inconsistent with the provisions of treaties 
entered into between the United States and various other 
nations. 

From a memorandum furnished to His Excellency the Gov- 
ernor by the Secretary of State of the United States, submitted 
to me with the order of the House, I make the following quota- 
tions. A treaty between the United States and Japan, con- 
cluded Feb. 21, 1911, referring to citizens or subjects of each 
country traveling or residing in the other, provides : — 

They shall not be compelled, under any pretext whatever, to pay any 
charges or taxes other or higher than those that are or may be paid by 
native citizens or subjects. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 213 

A provision of similar import in a treaty between the 
United States and Serbia, concluded Oct. 14, 1881, declares: — 

They shall be at liberty to exercise their industry and trade, both by 
wholesale and by retail, in the whole extent of both territories, without 
being subjected as to their persons or property, or with regard to the 
exercise of their trade or business, to any taxes, whether general or local, 
or to any imposts or conditions of any kind other or more onerous than 
those which are or may be imposed upon natives or upon the subjects of 
the most favored nation. 

Other treaties contain agreements similar in phraseology or 
import; for example, see treaty between the United States 
and Spain, concluded July 3, 1902, and treaty between the 
United States and Switzerland, concluded Nov. 25, 1850. 
Treaties with various other nations secure to the subjects of 
those nations the privileges and protection enjoyed in this 
country by the subjects of the most favored nation. Such a 
clause in any treaty would, of course, adopt as a part of such 
treaty the protective obligation of the character under discus- 
sion, which is the broadest in its scope in any of the treaties of 
this character entered into by the United States. 

It requires no discussion to establish that the registration 
fee provision of the proposed bill is in conflict with these 
treaty obligations. Whatever the limits of the treaty-making 
power in its relation to the police power of the State, I cannot 
doubt that it extends to the protection of resident aliens 
against the imposition of fees and excises because of their 
alienage. Treaties duly entered into by the United States are, 
by the Constitution, expressly made "the supreme law of the 
land" (U. S. Const., art. VI), and it follows that legislation of 
any State in conflict therewith is invalid. 

Accordingly, I must advise the House of Representatives 
that Senate Bill No. 321, entitled "An Act to provide for the 
registration of certain aliens," would be invalid if enacted into 
law in its present form. 



214 OPINIONS OF THE ATTORNEY-GENERAL. 



Collection of Taxes on Real Estate of a Person in the 
Military Seryice — Soldiers' and Sailors' Civil Re- 
lief Act. 

The provisions of the Soldiers' and Sailors' Civil Relief Act, relating to the collec- 
tion of taxes on real estate owned or occupied by a person in the military serv- 
ice, do not apply to taxes assessed upon real estate in this Commonwealth in 
1917 and the years prior thereto. 

Commi^foner ^^^ havc requested my opinion as to the effect of section 

junl^e. 500 of the act of Congress approved March 8, 1918, known as 

the Soldiers' and Sailors' Civil Relief Act, upon the collection 

of taxes on real estate assessed in this Commonwealth in 1917 

and the years prior thereto. 

The section referred to is as follows: — 

(1) That the provisions of this section shall apply when anj^ taxes or 
assessments, whether general or special, falHng due during the period of 
mihtary service in respect of real property owned and occupied for dwell- 
ing or business purposes by a person in military service or his dependents 
at the commencement of his period of military service and still so occupied 
by his dependents or employees are not paid. 

(2) When anj^ person in military service, or anj^ person in his behalf, 
shall file with the collector of taxes, or other officer whose duty it is to 
enforce the collection of taxes or assessments, an affidavit showing (a) 
that a tax or assessment has been assessed upon property which is the 
subject of this section, (b) that such tax or assessment is unpaid, and (c) 
that by reason of such military service the ability of such person to pay 
such tax or assessment is materially affected, no sale of such property 
shall be made to enforce the collection of such tax or assessment, or any 
proceeding or action for such purpose commenced, except upon leave of 
court granted upon an application made therefor by such collector or 
other officer. The court thereupon may stay such proceedings or such 
sale, as provided in this Act, for a period extending not more than six 
months after the termination of the war. 

(3) When by law such property may be sold or forfeited to enforce the 
collection of such tax or assessment, such person in military serv'ice shall 
have the right to redeem or commence an action to redeem such property, 
at any time not later than six months after the termination of such serv- 
ice, but in no case later than six months after the termination of the war; 
but this shall not be taken to, shorten any period, now or hereafter pro- 
vided by the laws of any State or Territory for such redemption. 

(4) Wlienever any tax or assessment shall not be paid when due, such 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 215 

tax or assessment due and unpaid shall bear interest until paid at the 
rate of six per centum per annum, and no other penalty or interest shall 
be incurred by reason of such nonpayment. Anj^ lien for such unpaid 
taxes or assessment shall also include such interest thereon. 

As is apparent from paragraph (1) of this section, it applies 
only to taxes "falling due during the period of military serv- 
ice." Paragraph (2) of section 101 of this act defines the term 
"period of military service" as follows: — 

The term "period of military service," as used in this Act, shall include 
the time between the following dates: For persons in active service at the 
date of the approval of this Act it shall begin with the date of approval 
of this Act; for persons entering active service after the date of this 
Act, with the date of entering active service. It shall terminate with 
the date of discharge from active service or death while in active service, 
but in no case later than the date when this Act ceases to be in force. 

It is plain, therefore, that the provisions of section 500 can 
have no effect upon the collection of taxes "falling due" prior 
to the approval of this act on March 8, 1918. 

St. 1909, c. 490, Pt. I, § 71, as amended by Gen. St. 1916, 
c. 103, provides as follows: — 

Taxes shall be payable in every city and town and in every fire, water, 
watch or improvement district, in which the same are assessed, and bills 
for the same shall be sent out, not later than the fifteenth day of October 
of each year, unless by vote, ordinance or by-law of the city, town or 
district, an earlier date of payment is fixed. On all taxes remaining 
unpaid after the expiration of fifteen days from the date when taxes are 
payable, interest shall be paid at the rate of six per cent per annum, com- 
puted from the date on which they become payable; but if, in any case, 
the tax bill is sent out later than the day prescribed, interest shall be 
computed only from the expiration of such fifteen days. In no case shall 
interest be added to taxes paid prior to the expiration of fifteen days from 
the date when they are payable. Bills for taxes assessed under the pro- 
visions of section eighty-five of Part I of said chapter four hundred and 
ninety shall be sent out not later than December twenty-sixth, and said 
taxes shall be payable not later than December thirty-first. If remaining 
unpaid after that date, interest shall be paid at the rate above specified, 
computed from December thirty-first until the day of payment, but if, in 
any case, the tax bill is sent out later than December twentj^-sixth, inter- 
est shall be computed from the fifteenth day of January next following. • 



216 OPINIONS OF THE ATTORNEY-GENERAL. 

In all cases where interest is payable, it shall be added to and become a 
part of the tax. 

In my opinion, under the provisions of this section all taxes 
upon real estate or personal property assessed in due course in 
the regular annual assessment of taxes become due and pay- 
able not later than the fifteenth day of October in each year, 
and taxes assessed as omitted assessments under the provisions 
of section 85, therein referred to, become due and payable not 
later than December 31. To use the language of the Federal 
statute, these taxes must be regarded as "falling due" not 
later than the dates specified. 

Accordingly, in my judgment, it follows that all taxes as- 
sessed upon real estate in this Commonw'ealth in the year 1917 
and the years prior thereto must be taken as having fallen due 
prior to any period of military service protected by the Sol- 
diers' and Sailors' Civil Relief Adt. Thus the provisions of 
that act have no application to the collection of these taxes. 

Perhaps, however, it might not be inappropriate for me to 
suggest that collectors of taxes, acting within the spirit of this 
Federal statute, should, so far as is consistent with the per- 
formance of the duties imposed upon them by law, exercise 
whatever discretion is granted to them by law^ in such a man- 
ner as will not impose undue hardship upon any person in the 
military service of the United States. They, of course, cannot 
omit to take all steps necessary to insure the eventual collec- 
tion of such taxes from these persons, but they can, and 
doubtless will, in proper cases, as long as is possible within the 
provisions of the statutes, delay selling the property of such 
persons which is of the character protected by this act. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 217 



State Guard — Authority of the Commander-in-Chief to 
require by general orders the execution of com- 
MANDS GIVEN BY Civil Authorities. 

The Commander-in-Chief may properly issue a general order requiring all officers 
to execute commands issued to them by the proper persons mentioned in Gen. 
St. 1917, c. 327, Pt. I, §§ 25-34, inclusive. 

You request my opinion as to the legality of that part of J^'J'^I^^. 
General Orders No. 17, issued by the Commander-in-Chief '^'^g^^'''- 
under the provisions of Gen. St. 1917, c. 148, § 2, which directs ^^^l!- 
all officers to execute any and all lawful commands issued to 
them by the proper persons mentioned in Gen. St. 1917, c. 
327, Pt. I, §§ 25-34, inclusive. 

Section 26 of said chapter 327 provides : — 

In case of a tumult, riot, mob or a body of persons acting together by 
force to violate or resist the laws of the commonwealth, or when such 
tumult, riot or mob is threatened, or in case of public catastrophe when 
the usual police provisions are inadequate to preserve order and afford 
protection to persons and property, and the fact appears to the com- 
mander-in-chief, to the sheriff of a county, to the mayor of a city or to the 
selectmen of a town, the commander-in-chief may issue his order, or such 
sheriff, mayor or selectmen may issue a precept, directed to any com- 
mander of a brigade, regiment, naval brigade or battahon, battalion, 
squadron, corps of cadets or company, within the jurisdiction of the 
officer issuing such order or precept, directing him to order his command, 
or any part thereof, to appear at a time and place therein specified to aid 
the civil authority in suppressing such violations and supporting the laws. 

In my communication to you of Nov. 15, 1917, I said, in 
referring to this part of the order of the Commander-in-Chief, 
that "the Governor has thus, under the general authority 
granted to him by chapter 148, prescribed that the State 
Guard shall perform the duties which ordinarily devolve upon 
the volunteer militia" under said sections 25 to 34, inclusive. 

I am of the opinion that there is no difficulty on the ground 
of delegation of authority. What the Governor has done is 
simply to direct the officers of the various units of the State 
Guard to execute any and all lawful commands issued to them 
by the proper persons mentioned in said sections. This in- 



218 OPINIONS OF THE ATTORNEY-GENERAL. 

eludes responding to precepts lawfully issued by the officers 
mentioned in section 26. Accordingly, I am of the opinion 
that the order of the Commander-in-Chief was authorized by 
law. 



Pharmacy Law — Registered Pharmacist — Certificate of 
Fitness, Suspension or Revocation of. 

The suspension or revocation of certificates of fitness to registered pharmacists by 
the Board of Registration in Pharmacy or by the licensing authorities of cities 
and towns need not be for cause, but such suspension or revocation must be 
made in good faith. 

To the Board You submit for mv opinion the following question: ^ — 

of Registration 

1918 ' Must the suspension or revocation by the Board of Registration in 

^!:^1_' Pharmacy or by the hcensing authorities of cities and towns of certificates 

of fitness to registered pharmacists be for cause, or otherwise? 

You will note that under R. L., c. 100, § 23, St. 1907, 
c. 308, and St. 1909, c. 261, the certificate of fitness there is a 
prerequisite to the granting of a sixth-class license by the 
licensing authorities. The suspension or revocation of a 
certificate of fitness upon which a sixth-class license has been 
granted must be after giving a hearing to the parties interested 
and for any cause that the Board may deem proper, as pro- 
vided for in St. 1909, c. 261, § 1. 

Under St. 1906, c. 281, and St. 1913, c. 413, the certificate 
of fitness is issued to registered pharmacists, and under it 
they may sell intoxicating liquors on the prescription of a 
registered physician. 

Bearing on this, it is to be noted that while St. 1906, c. 281, 
was under discussion before its enactment, a motion to amend 
section 2 by inserting after the word "revocation," in line 7, 
the words, for cause, and another motion to strike out in 
section 2, line 8, the word "by," and insert in place thereof 
the w^ords, at the pleasure of, were both lost. 

Therefore, I am of the opinion that the intent of the Legis- 
lature was that the action of your Board was not to be re- 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 219 

stricted when, in your discretion, you determined to suspend 
or revoke in good faith certificates of fitness by which registered 
pharmacists are permitted to sell intoxicating Hquors on the 
prescription of a registered physician. 



Trust Companies — Loans in Excess of One-fifth of the 
Surplus Account and Capital Stock — Duty of 
Bank Commissioner. 

A trust company which lends sums of money (in each case less then one-fifth of its 
capital stock) to several individual borrowers, who later assign their several 
interests to a single corporation, to an aggregate amount exceeding one-fifth 
of the capital stock and surplus of the trust company, is not necessarily to be 
regarded as having lent to one borrower more than the law allows, especially 
where each loan was made upon adequate security; but the Bank Commis- 
sioner has authority to direct the discontinuance of such loans or if for any 
reason he regards them as unsafe for the trust company. 

You ask my opinion upon the following question: — 



To the Bank 



Comm 

A trust company has arranged to lend sums of monej^ which are less June 2; 
than one-fifth of its capital stock, to ten or more persons, each person 
giving a separate note and mortgage on separate parcels of real estate 
adjoining one another. The various borrowers have entered into a con- 
tract with a construction company to erect buildings upon their land, and 
have assigned to that construction company the advances that may be 
due from time to time on account of their mortgages. These various 
borrowers, subsequent to their giving their notes and mortgages, appear to 
have transferred their titles to the aforesaid construction company. The 
name of the construction company does not appear on any of the notes 
or the mortgages. 

Wliile each note is less than one-fifth of the capital stock of the trust 
companj^, yet the aggregate of these loans would exceed the statutory 
limit. 

My question is: Can I assume this to be a subterfuge which would 
justify my taking action against the trust company as having lent to one 
borrower more than the law allows? 

The prohibition against the trust company lending money 
in excess of one-fifth of its paid-up capital stock and its 



220 OPINIONS OF THE ATTORNEY-GENERAL. 

surplus account is contained in R. L., c. 116, § 34, as amended 
by Gen. St. 1916, c. 129, § 2, and Gen. St. 1917, c. 172, § 2. 
Said section 34, as amended, is as follows : — • 

The total liabilities of a person, other than cities or towns, includmg in 
the liabilities of a firm the liabilities of its several members, for money 
borrowed from and drafts drawn on any such corporation having a capital 
stock of five hmidred thousand dollars or more shall at no time exceed 
one fifth part of the surplus account and of such amount of the capital 
stock of such corporation as is actually paid up. Such total liabilities to 
any such corporation having a capital stock of less than five hundred 
thousand dollars shall at no time exceed one fifth of such amount of the 
capital stock of the corporation as is actually paid up; but the discount 
of bills of exchange drawn in good faith against actually existing values, 
and the discovmt of commercial or business paper actually owned by the 
person negotiating it, shall not be considered as money borrowed. The 
total liabilities to any one such corporation of any government, either 
foreign or domestic, other than the government of the United States of 
America or of this commonwealth, shall not exceed one tenth part of the 
surplus account and of such amount of the capital stock of such corpora- 
tion as is actually paid up, and no trust company shall invest, or advance 
an aggregate amount exceeding at any one time twenty per cent of its 
surplus account and paid up capital stock in such securities and evi- 
dences of indebtedness. 

Obviously, in the case you state there is no person whose 
liability to the trust company exceeds one-fifth of the surplus 
account and the paid-up capital stock, unless the persons 
signing the notes, or some of them, constitute a firm, within 
the meaning of said section 34. I think it extremely doubtful 
whether this could be contended simply on the facts stated 
by you, even if the persons signed the notes with an under- 
standing with the construction company that as soon as the 
notes and mortgages were signed their equities in the separate 
parcels were to be immediately transferred to the construction 
company. 

If the persons signing the notes should be considered as 
members of a firm, and the various loans treated as one loan, 
then your duty in the premises is a limited one, defined by 
St. 1908, c. 590, § 8, as amended by St. 1910, c. 622. Said 
section provides : — 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 221 

If, in the opinion of the commissioner, such bank, or its officers or 
trustees have violated any law relative thereto, he may forthwith report 
such violation to the attorney-general, who shall forthwith, in behalf of 
the commonwealth, institute a prosecution therefor. If, in the opinion 
of the commissioner, such bank is conducting any part of its business in 
an unsafe or unauthorized manner, he shall direct in writing that such 
unsafe or unauthorized practice shall be discontinued; and if any such 
bank shall refuse or neglect to comply with any such direction of the 
commissioner, or if, in the opinion of the commissioner, a trustee or offi- 
cer of such bank has abused his trust, or has used his official position in 
a manner contrary to the interest of such bank or its depositors, or has 
been negligent in the performance of his duties, the commissioner may in 
the case of a savings bank, forthwith report the facts to the attorney- 
general, who may, after granting a hearing to said savings bank, trustee 
or officer, institute proceedings in the supreme judicial court which shall 
have jurisdiction in equity of such proceedings, for the removal of one or 
more of the trustees or officers, or of such other proceedings as the case 
may require; or the commissioner may, in the case of any bank, after 
giving a hearing to the directors or trustees thereof, either report to the 
shareholders thereof, or, with the consent in writing of a board composed 
of the treasurer and receiver general, the attorney-general and the com- 
missioner of corporations, pubhsh such facts relative thereto as in his 
opinion the public interest may require. 

The violation of law referred to in the first sentence of 
the section obviously refers to a violation of a criminal law, 
as it provides for a prosecution therefor. The making of a 
loan in excess of one-fifth of the capital stock and surplus 
account nowhere is made a criminal act, unless made under 
such circumstances as to show an intent to defraud the bank. 
It is an unauthorized act, of which it is your duty to take 
notice and to direct that it be discontinued; and, if not dis- 
continued, if you deem it expedient, after giving a hearing to 
the directors or trustees of the bank, to report to the share- 
holders thereof, or, with the consent in writing of a board com- 
posed of the Treasurer and Receiver-General, the Attorney- 
General and the Commissioner of Corporations, publish such 
facts relative thereto as in your opinion the public interest 
may require. 

However, upon the facts stated in your letter and the 
additional fact stated by you verbally to me, that the se- 



222 OPINIONS OF THE ATTORNEY-GENERAL. 

curity given upon each loan is more than adequate to secure 
the same, I am of the opinion that the loans are not such as 
to require you to direct that they be discontinued on the 
ground of being unauthorized. On the other hand, if you 
are of the opinion, for any reason, that the loans are unsafe 
for the trust company, I think it your duty, under the pro- 
visions of said section 8, to direct in writing that such loans 
be discontinued. 



Board of Retirement — State Employees in Institutions 
taken over by commonwealth — annuities and 
Pensions. 

Employees of certain educational institutions taken over and operated by the 
Commonwealth forthwith become employees of the Commonwealth, and their 
membership in the Retirement Association is made compulsory. 

Any pension dependent on prior service is to be computed in such cases precisely as 
if the employee had entered the service of the Commonwealth at the time when 
he in fact entered the service of the institution. 

The Board of Retirement has no authority to allow such employees to make up 
previous annuity assessments. 

Jf°RefiremJnt You havc rcqucstcd my opinion as to certain questions which 
juni^27. have arisen wdth reference to the status in the retirement 

system of employees of the New Bedford Textile School, the 
Bradford Durfee Textile School, the Lowell Textile School and 
the Massachusetts Agricultural College after such institutions 
have been taken over and are being operated by the Common- 
wealth under the provisions of chapters 246, 248, 274 and 262, 
respectively, of the General Acts of the present year. 

In my opinion, the employees of these institutions become 
employees of the Commonwealth as soon as these institutions 
are taken over by the Commonwealth. They then enter the 
service of the Commonwealth for the first time, and, accord- 
ingly, their membership in the Retirement Association is 
made compulsory by St. 1911, c. 532, § 3 (2), as amended by 
St. 1912, c. 363. I find no provision in any statute which 
authorizes your Board to extend to them the privilege of 
declining membership within any period of time. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 

The Retirement Act contains the following provision, added 
to section 1 by St. 1912, c. .363: — 

In the case of employees of any department or institution formerly 
administered by a city, county or corporation and later taken over by the 
commonwealth, service rendered prior to such transfer shall be counted 
as a part of the continuous service for the purposes of this act. 

This refers to the provision of the Retirement Act estab- 
lishing pensions based upon prior service, which is as 
follows : — 

(5) Pensions based upon prior service. Any member of the associa- 
tion who reaches the age of sixty years, ha\ing been in the continuous 
service of the commonwealth for fifteen years or more immediately pre- 
ceding, and then or thereafter retires or is retired, and any member who 
completes thirty-five years of continuous ser\dce and then or thereafter 
retires or is retired, shall receive in addition to the annuity and pension 
provided for by paragraphs (2) B and C (a) of this section, an extra pen- 
sion for life as large as the amount of the annuity and pension to which 
he might have acquired a claim if the retirement system had been in 
operation at the time when he entered the ser\'ice of the commonwealth, 
and if accordingly he had paid regular contributions from that date to 
the date of the establishment of the retirement association at the same 
rate as that first adopted by the board of retirement, and if such deduc- 
tions had been accumulated with regular interest. 

In my opinion, in applying these two provisions to em- 
ployees of these institutions thus taken over by the Common- 
wealth, it must be held that any such employee who there- 
after retires and who has had the requisite service since his 
employment by the institution shall be entitled to an extra 
pension for prior service "as large as the amount of the 
annuity and pension to which he might have acquired a 
claim if the retirement system had been in operation at the 
time when he entered the service" of the institution in ques- 
tion, "and if accordingly he had paid regular contributions 
from that date to the date of the establishment of the retire- 
ment association." 

In my judgment, the first quoted provision requires a 
pension on prior service in these cases to be computed 



223 



224 OPINIONS OF THE ATTORNEY-GENERAL. 

precisely as if the employee had entered the service of the 
Commonwealth at the time when he in fact entered the 
service of the institution. 

I find no provision in the law which authorizes your Board 
to allow any such employees to make up the annuity assess- 
ments which they would have paid if they had been in the 
service of the Commonwealth when the retirement system 
was established to the time when they now, for the first time, 
actually enter the service of the Commonwealth. In the 
absence of express authority authorizing such a course, it is 
my opinion that your Board has no authority to permit it. 
The result will be that these employees will be entitled to 
pensions and annuities under section 6 (2) B and C based 
upon annuity payments actually made by them after these 
institutions have been taken over by the Commonwealth. 



State Board of Labor and Industries — War Emergency 
Industrial Committee. 

The State Board of Labor and Industries has authority to remove certain members 
of the War Emergency Industrial Board established by Gen. St. 1917, c. 342, 
§ 24, but has no authority to nullify or veto its acts. 

of°Labo?and ^'^^ havc requested my opinion as to whether the State 
^^^igil*^''^^' Board of Labor and Industries can revoke at any time any 
june^y. orders issued by the War Emergency Industrial Committee 

established by Gen. St. 1917, c. 342, § 24. 

In my opinion, it has no such authority. The committee 
provided for by the section in question is to be appointed and 
given its name by your Board. The section then provides: — 

Any action taken and all permits granted by said committee shall have 
the same effect as though taken or granted by said board, which may at 
any time revoke the authoritj' of said committee, remove any of its mem- 
bers except the commissioner of labor, and may fill any vacancies in said 
committee, and in the temporary absence of any member thereof, the 
committee or the commissioner of labor may fill such vacancy temporarily. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 225 

I find no other provision in this section which bears upon 
your inquiry. In my judgment, while the language quoted 
authorizes your Board to remove any or all members of the 
committee except the commissioner of labor, and to fill any 
vacancies, and also authorizes you at any time to "revoke 
the authority of said committee," it does not authorize you 
to nullify or veto any of its acts. The statute provides that 
the permits granted by this committee "shall be revocable 
at any time by the aforesaid committee," but contains no 
other provision relating to revocation. In my opinion, such 
permits may be revoked only by the committee. 



Military Service — Absent Voter — "Year" preceding 
Election. 

The word "year," as used in the act permitting voting by persons absent in the 
military service (Gen. St. 1918, c. 293), does not mean the calendar year begin- 
ning January 1, but the period of twelve calendar months preceding the elec- 
tion at which the absent voter is proposing to vote. 

You have requested my opinion as to whether applications To the 
for registration as absent voters, under the provisions of Gen. i9i8 

St. 1918, c. 293, filed on or before September 1 next, would 

permit the absent voter to vote at the next State election. 

Section 3 of that statute provides: — 

Any person in the military or naval service of the United States who 
is a qualified voter in any city or town of this commonwealth may apply, 
in writing, to the secretary of the commonwealth for registration as an 
absent voter not later than September first in the year preceding the 
election. . . . 

The question presented, in short, is whether, by the use 
of the words "not later than September first in the year 
preceding the election," the Legislature intended the calendar 
year beginning January 1 and ending December 31, or the 
year of twelve months, or three hundred and sixty-five days, 
preceding the election. 



226 OPINIONS OF THE ATTORNEY-GENERAL. 

R. L., c. 8, § 5, provides: — 

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

Eleventh, The word "month" shall mean a calendar month, and the 
word "year," a calendar year, unless otherwise expressed; and the word 
"year" alone shall be equivalent to the expression "year of our Lord." 

When the w^ord "year" appears in a statute, accordingly, 
it is to have the meaning stated above unless from the other 
provisions of the statute a contrary intention on the part of 
the Legislature is discerned. Cases have arisen in other 
States in which such intention has been discovered by the 
courts. Thus in Knode v. Baldridge, 73 Ind. 54, 55, it is 
said : — 

When the word "year" is used, twelve calendar months are usually 
intended, but not necessarily twelve months commencing with the first 
and ending with the twelfth month of the calendar. 

Similarly, in Rhode Island a provision of the Constitution, 
that no person should be allowed to vote in certain elections 
in Providence unless "he shall within the year next preceding 
have paid a tax assessed upon his property therein," was 
held not to mean the preceding calendar year, but only the 
preceding twelve months. In re Providence Voters, 13 R. I. 
737, 740; see also Inhahitants of Paris v. Inhabitants of Hiram, 
12 Mass. 262. 

Looking at the provisions of the present statute it is ap- 
parent that unless the word "year" is considered as meaning 
the period of twelve calendar months, or three hundred and 
sixty-five days, preceding the election, in ordinary cases it 
would be necessary for a voter to register fourteen months 
in advance of the election. Obviously, there could be no 
reason for requiring such a lengthy period in advance of the 
election. 

Section 13 of the act provides: — 

For all state and national elections there shall be prepared and printed 
official ballots to be known as absent voter ballots. . . . 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 22^ 

This clearly requires the printing of absent voter ballots for 
use in the next election following the passage of the act on 
June 13, 1918. It is apparent, therefore, that the Legislature 
intended that registrations might be made which would permit 
of the use of such a ballot at the election in the following 
November, and, accordingly, I am of the opinion that the 
word "year," as used in section 3, does not mean the calendar 
year from January 1 to December 31, but rather the period 
of twelve calendar months preceding the election at which the 
absent voter is proposing to vote. 

I am of the opinion that applications filed on or before 
September 1 next will be in time to permit the absent voter 
to vote at the next State election, provided the other re- 
quirements of the act are complied with. 



Officers, Matrons and Subordinate Employees in the 
Prison Service — Compensation. 

The term "officers in the prison service of the several counties," as used in Gen. St. 
1918, c. 240, does not include all subordinate employees, clerks or assistants, 
but only persons who as a regular and substantial part of their duties have 
charge and control of prisoners, and apparently does not include matrons. 

Whether or not any particular individual is to be regarded as an "officer" under 
this section is a question of fact to be decided in the first instance by the county 
treasurer, whose determination ought not to be set aside unless it is clearly 
wrong. 

You have requested my opinion as to what persons come TotheCon- 
within the scope of Gen. St. 1918, c. 240, § 2, which establishes County 
certain minimum salaries for "officers who have been in the isis 

July 10. 

prison service of the several counties of the commonwealth 

for" specified periods of years. 

By R. L,, c. 224, § 16, the following provision is made ♦ 
for the appointment of subordinates in jails and houses of 
correction: — 

The jailer, master or keeper shall appoint subordinate assistants, 
employees and officers, and shall be responsible for them. 

Section 18 of that chapter provides: — 



228 OPINIONS OF THE ATTORNEY-GENERAL. 

The county commissioners shall establish fixed salaries for all officers, 
assistants and employees of jails and houses of correction. 

These quotations seem plainly to indicate that all employees 
in the prison service subordinate to the master or keeper are 
not to be regarded as officers. They are described as "subor- 
dinate assistants, employees and officers." The statute under 
consideration, establishing minimum salaries, expressly applies 
only to officers. 

My predecessor had occasion to consider the question as 
to what persons were officers or instructors in the prison 
service, within the meaning of St. 1908, c. 601, as amended 
by St. 1911, c. 673, providing for the retirement of such 
officers and instructors and the granting of pensions to 
them. In an opinion dated Sept. 24, 1914, directed to the 
chairman of the Board of Retirement, he ruled that a 
carpenter, a mechanic and a mason whose regular duties did 
not appear to require them to have charge of any prisoners 
were not officers or instructors, within the meaning of this 
statute. He defined officers of a prison to mean "those 
persons who are employed to, and who as a regular part 
of their duties do, have charge either of all or a definite 
number of persons committed to the prison, jail or reforma- 
tory by legal process." This seems to me to be an appro- 
priate definition of the term, and, in my opinion, it should 
be employed in determining who are officers in the prison 
service, within the meaning of the statute under consideration. 
It necessarily becomes a question of fact in each individual 
case, as to whether the particular employee, as a regular part 
of his duties, has charge of some or all of the prisoners. This 
question of fact must be decided, in the first instance at 
least, by the county treasurer, whose duty it is to pay the 
salaries established by this act. In my opinion, in performing 
the duties intrusted to you by law you ought not to question 
a determination of this character once made by him unless 
you are satisfied that it was plainly wrong. 

If an employee is appointed and carried on the pay roll as 
an officer, that fact may, prima facie, entitle him to the 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 229 

benefits of this statute, though it is not conclusive. Calling a 
clerk an officer, of course, cannot make him such. Nor does 
the fact that an employee may occasionally, as an incidental 
part of his work, have some supervision over a few of the 
prisoners who are assigned to work in his department make 
him an officer. It must be a regular and substantial part 
of his duty to have charge and control of prisoners in order 
to bring him within the definition of prison officers to which 
I have referred. Thus, the engineers, assistant engineers and 
stewards or cooks cannot, in my opinion, be regarded as officers 
merely because prisoners are from time to time assigned to work 
in their departments under their direction. Again, persons ap- 
pointed as, and in the main performing the duties of, clerks are 
not officers unless in addition they perform substantial duties 
of the character indicated in this definition of prison officers. 

The question whether matrons come within the terms of 
this statute is a matter of some difficulty. From the facts 
furnished me, apparently they perform with reference to the 
female prisoners much the same duties that are performed with 
regard to the male prisoners by some of the persons who are 
plainly prison officers. There appears, however, to be no 
provision in the statute expressly authorizing the appointment 
of matrons. They seem to be appointed under the general 
authority to appoint subordinate assistants and employees. 
So far as the matter has been called to my attention, the 
compensation paid them is substantially less than that paid 
to any of the male employees prior to the enactment of this 
statute. In no county where the matter has been called to 
my attention are they paid more than $600 a year. In the 
County of Barnstable the matron receives but SlOO a year. 
I cannot believe that by the enactment of this statute, and 
without referring definitely to these positions, the General 
Court intended to increase these salaries to a minimum of 
$1,000, increasing to a minimum of $1,400 in case of more 
than five years' service. I must advise you that these matrons 
do not come within the provisions of chapter 240. 



230 OPINIONS OF THE ATTORNEY-GENERAL. 



Retirement Association — Officer of Massachusetts Re- 
formatory EMPLOYED AFTER JuNE 7, 1911 — CONTRIBU- 
TIONS TO Annuity Fund. 

A person employed in the Lyman School for Boys, who was transferred to the 
Massachusetts Reformatory as an officer subsequent to June 7, 1911, does not 
become entitled to the non-contributory pension provided by St. 1908, c. 601» 
and must, therefore, continue to make payments as a member of the Retire- 
ment Association. 



To the Board 
of Retirement. 

1918 
July 15. 



You have requested my opinion as to whether a person 
employed in the Lyman School for Boys, who has now been 
transferred to the Massachusetts Reformatory as an officer or 
instructor in that institution, continues to be a member of the 
Retirement Association and is required to make the contribu- 
tions to the annuity fund as such member. 

Apparently, no question is raised or could be raised but 
that this employee while in the service of the Lyman School 
for Boys properly became a member of the Retirement 
Association as an employee of the Commonwealth, within 
the scope of the retirement act (St. 1911, c. 532). This person 
still remains an employee of the Commonwealth after his 
transfer to the Massachusetts Reformatory, and undoubtedly 
must remain a member of the Retirement Association unless 
excluded therefrom by the provision of section 3 (3) of the 
Retirement Act, to the effect that "any employee who is or 
will be entitled to a pension from the commonwealth for any 
reason other than membership in the association" is not 
entitled to be a member of it. 

By St. 1908, c. 601, as amended by St. 1911, c. 673, pro- 
vision is made for non-contributory pensions upon retirement 
from active prison service of "any officer of the state prison, 
or of the Massachusetts reformatory, or of the state farm, or 
of the reformatory prison for women, or of any jail or house 
of correction, or any person employed to instruct the prisoners 
in any prison or reformatory, as provided in section forty- 
four of chapter two hundred and twenty-five of the Revised 
Laws, who began employment as such officer or instructor on 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 231 

or before June seventh, nineteen hundred and eleven." It 
is further expressly declared: — 

Provided, that no such officer or instructor shall be retired unless he 
began employment as such officer or instructor on or before June seventh, 
nineteen hundred and eleven. 

In my opinion, only persons who began their employment 
as such officers or instructors in the institutions named in this 
statute before June 7, 1911, are entitled to this non-contribu- 
tory pension. The person to whom your inquiry relates did 
not begin his employment as such officer or instructor until 
his recent transfer to the Massachusetts Reformatory from 
the Lyman School for Boys. It follows that he is not entitled 
to the non-contributory pension to which I have referred, and 
must, therefore, remain a member of the Retirement Associa- 
tion and pay the regular contributions to the annuity fund 
required of such members. 



State Guard — Militia — Advances from State Treasury 
FOR Camp Pay and Expenses. 

The State Guard is not a part of the organized militia of the Commonwealth, and 
the Auditor of the Commonwealth has no authority to advance $42,000 for 
camp pay and expenses of this organization, nor any other sum for this pur- 
pose beyond the amount of $150 at any one time, as authorized by St. 1914, 
c. 370, § 1. 

You have requested my opinion as to whether the Auditor Tothe 
of the Commonwealth is authorized to comply with the re- ml^'^^' 

quest of the Adjutant-General and arrange for an advance 

from the treasury of the sum of $42,000 for camp pay and 
expenses of mileage of the State Guard in connection with 
the tour of camp duty prescribed by your order as Commander- 
in-Chief, dated June 25, 1918. 

The provision of law relied upon by the Adjutant-General 
in making this request is St. 1914, e. 370, § 2, a portion of 
which is as follows : — 



232 OPINIONS OF THE ATTORNEY-GENERAL. 

The acting paymaster general of the mihtia may have advanced to 
him from the treasury of the commonwealth one hundred per cent of the 
pay and mileage for duty performed at camp or annual drill, under such 
rules and regulations as the auditor may prescribe, and shall return the 
unexpended balance of the sum so advanced as soon as possible, or at 
such times as the auditor ma}'' require; . . . 

This provision now appears in the codification of the laws 
relating to the militia, known as the Militia Law (Gen. St. 
1917, c. 327), as follows: — 

Section 175. The chief quartermaster may have advanced to him, 
from the treasury of the commonwealth, under such rules and regulations 
as the auditor may prescribe, one hundred per cent of the pay and mile- 
age for duty performed at camp or annual drill, and shall return the 
unexpended balance of the sum so advanced as soon as possible, or at 
such times as the auditor may require. 

On November 15 last, in an opinion given to the Adjutant- 
General with reference to the status of the State Guard, 
after reviewing at some length the statutes relating to that 
organization, I advised him as follows: — 

Obviously the State Guard, not being organized in accordance with 
the Federal law (act of June 3,, 1916) or in accordance with the laws gov- 
erning the Massachusetts volunteer militia (St. 1908, c. 604; Gen. St. 
1917, c. 327), cannot be a part of the National Guard. 

The limited provision of the statutes above set forth dealing with the 
organization, equipment and maintenance of this force seems to me to 
make it clear that it was not intended to be a complete substitute for the 
National Guard or to have all the powers and privileges of that force 
while it is absent from the Commonwealth in the service of the United 
States. 

In my opinion, the State Guard may be regarded as a part of the unor- 
ganized militia of the Commonwealth temporarily organized in a limited 
way and for a limited purpose. Its character, duties and powers in the 
main are prescribed by Gen. St. 1917, c. 148, § 2. It is to be of such 
numerical strength, to be organized, equipped and maintained, and to 
have such terms of service as the Commander-m-Chief shall determine. 
"When called for service" it "shall perform such duties as shall be pre- 
scribed by order of the commander-in-chief, and all members of the home 
guard shall have and exercise throughout the commonwealth all the 
powers of constables, police officers and watchmen, except the service 
of civil process." 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 233 

Both the provision from chapter 370 of the Acts of 1914 
and Gen. St. 1917, c, 327, known as the Militia Law, in my 
judgment, apply only to the organized militia. In the opinion 
to which I have referred I advised the Adjutant-General 
that the latter statute had no application to the State Guard. 
In my opinion, neither of the provisions relied upon authorizes 
the advance requested. No other provision of law has been 
called to my attention, and I know of none which authorizes 
the suggested advance. Sums not exceeding $150 at any one 
time may be advanced to the Adjutant-General as well as 
to other departments, under St. 1914, c. 370, § 1, but, in 
my opinion, this is the extent to which advances may be made. 



Civil Service — Certificate ©"f Positive Merit — Six 
Months' Probationary Period — Promotions. 

The statutory provision (St. 1914, c. 605, § 6) for promotion of clerks and stenog- 
raphers in the service of the Commonwealth upon a certificate of merit from 
the head of a department refers only to persons in the permanent service of 
the Commonwealth, and does not affect Civil Service Rule 26, relating to per- 
sons in the six months' probationary period. 

The Civil Service Commission has no authority to review a certificate of positive 
merit filed by the head of a department in making a promotion to a higher 
grade, under said section 6. 

You have requested my opinion as to certain questions TotheCivii 
involving the interpretation of St. 1914, c. 605, § 6, relating to Commission. 
the grading of clerks and stenographers in the service of the J^^b^. 
Commonwealth. That section is as follows: — 

Promotions shall not be made from a lower to a higher grade except 
for positive merit and upon a certificate signed by the head of the depart- 
ment and filed with the civil service commission that the person to be 
promoted is thoroughly competent to perform efficiently work of a supe- 
rior and more advanced character and that the needs of the department 
justify such promotion, and no increase of salary shall be paid until such 
certificate is filed. 

In an opinion rendered by me to the Auditor of the Com- 
monwealth (IV Op. Atty.-Gen. 437) the following statement 
was made : — 



234 OPINIONS OF THE ATTORNEY-GENERAL. 

Section 6 by plain implication authorizes promotions from a lower 
grade to a higher one for positive merit and upon the filing of a certificate 
of the nature described in the section. There is no limitation upon this 
right of promotion from one grade to another, and I therefore see nO' 
reason why a head of a department may not make such a promotion 
from any step in the lower grade to the higher grade. 

The reading of this opinion, as a whole, will show that 
the questions which I then had before me related only, so 
far as persons under the Civil Service Law and Rules are 
concerned, to persons in the permanent service of the Com- 
monwealth. The effect of this statute, so far as it relates 
to the promotion of persons under the civil service rules 
during the six months' probationary period established by 
section 1 of Rule 26, was in no way considered by me. In my 
opinion, this statute is not to be regarded as revoking Rule 26. 
It is to be read in connection with that rule. It follow^s 
that, in njy judgment, a clerk or stenographer under civil 
service rules cannot be promoted to a higher grade, under 
the provisions of section 6 of chapter 605 of the statute of 1914 
above referred to, during the six months' probationary period 
except in accordance with section 2 of Civil Service Rule 26. 

In my opinion, section 6 of chapter 605 of the statute of 1914 
above referred to does not authorize your Board in any manner 
to review or examine into the certificate of positive merit 
filed by the head of a department as a condition of making 
a promotion to a higher grade under this section. The statute, 
in my judgment, places the sole responsibility for determining 
the existence of such positive merit as justifies a promotion 
upon the head of the department making the promotion. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 235 



Board of Parole — Release op Prisoner after Expira- 
tion OF Minimum Term of Sentence — Authority of 
THE Warden of the State Prison. 

The Board of Parole is authorized, under R. L., c. 225, § 115, to determine whether 
a prisoner has observed the rules of the prison during the minimum term of 
his sentence, and, if he has, to permit him to be at liberty for the remainder 
of the sentence, upon such reasonable terms and conditions as they may pre- 
scribe. The warden of the State Prison is not at liberty to release any prisoner 
under this section of the law except upon a permit granted by the Board of 
Parole, after an investigation. 

You have requested my opinion as to certain questions To the Board 
which have arisen in connection with the enforcement of isis 

July 17. 

R. L., c. 225, § 115. That section is as follows: — 

If the record of a prisoner who was sentenced to the state prison for a 
crime committed on or after the first da^' of January in the year eighteen 
hundred and ninety-six shows that he has faithfully observed all the rules 
of the prison and has not been subjected to punishment, the commis- 
sioners shall, upon the expiration of his minimum term of sentence, issue 
to him a permit to be at liberty therefrom during the unexpired portion 
of the maximum term of his sentence, upon such terms and conditions as 
they shall prescribe. If the record shows that he has violated the rules 
of the prison, he may be given a like permit at such time after the expira- 
tion of the minimum term of his sentence as the commissioners shall 
determine. If the prisoner i§ held in the prison upon two or more sen- 
tences, he shah be entitled to receive such permit when he has served a 
term equal to the aggregate of the minimum terms of the several sen- 
tences, and he shall be subject to all the provisions of this section until 
the expiration of a term equal to the aggregate of the maximum terms 
of said sentences. 

The authority granted to the Prison Commissioners and 
the duties imposed upon them by this section have now been 
transferred to your Board. 

In my opinion, the section in question imposes upon your 
Board two duties. It first must determine whether the record 
of a prisoner who comes within its terms "shows that he 
has faithfully observed all the rules of the prison and has 
not been subjected to punishment." If this determination 
is made in favor of the prisoner, it becomes the duty of the 



236 OPINIONS OF THE ATTORNEY-GENERAL. 

Board to "issue to him a permit to be at liberty therefrom 
during the unexpired portion of the maximum term of his 
sentence, upon such terms and conditions as they shall pre- 
scribe." This plainly imposes a second duty upon your 
Board of determining what shall be the terms and conditions 
under which the permit to be at liberty is to be issued. It 
seerris to be within the discretion of your Board to impose 
any reasonable terms and conditions upon such a permit 
which are not inconsistent with any other provisions of this 
section or of the statutes in general. In my judgment, there- 
fore, under the terms of this section the warden of the State 
Prison is not authorized to release any prisoner except upon 
a permit to be at liberty duly granted by your Board, after 
an investigation of the matter by you. If the terms and 
conditions imposed by your Board in connection with the 
issuance of such a permit require the assent or acceptance 
of the prisoner, the permit cannot be issued or the prisoner 
released until he has indicated his assent or acceptance. 



War Service — Useful Occupation Act — Registration — 
Duty of Director of the Bureau of Statistics. 

The act requiring work in a useful occupation during the war (Gen. St. 1918, c. 286) 
applies only to the persons specified in it, and others who have registered in 
error are under no obligation to make weekly reports under section 4. Per- 
sons affected by it are not thereby required to engage in some useful occupa- 
tion during their vacation 



S'stat^tk^.^" I acknowledge your communication in relation to Gen. St. 
July 22. 1918, c. 286. The act provides: — 

It shall be the duty of every male resident of the commonwealth, who 
is able to work and who is between the ages of eighteen and fifty years, 
to engage in and to pursue some regular, useful occupation for at least 
thirty-six hours per week, and to comply with the provisions of this act 
relative to registration. 

It further provides that any such person who fails so to be 
employed or who fails to comply with the provisions of the 
act shall be punished by a fine or imprisonment. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 237 

The act has no application to persons not between the 
ages of eighteen and fifty years, nor to persons who are unable 
to work. It follows that w^here persons have registered in 
error they are under no obligation to continue to report 
weekly under the provisions of section 4 of the act, nor is a 
person who has registered but who later becomes unable to 
work required to register while his disability continues. 

Section 11 provides that the act shall not apply to persons 
temporarily unemployed by reason of difficulties with their 
employers, nor to bona fide students during a school or college 
term, nor to persons fitting themselves to engage in trade or 
industrial pursuits, if any such person is .able to produce 
from his union, strike committee, proper school or college 
authority, or other authority designated by the Director of 
the Bureau of Statistics, a satisfactory statement in WTiting 
setting forth the reason for his non-employment. 

It would seem to follow from the provisions of this act 
that students are required to register between terms of schools 
and colleges. I do not think, however, that school teachers 
who are engaged by the year are required to register between 
terms, as such an interpretation would require all male persons 
between the ages of eighteen and fifty to register during their 
vacation period. It seems unlikely that the Legislature 
intended to require all male persons between the ages of 
eighteen and fifty to engage in some useful occupation during 
their vacation period. 

Confirming my conversation with you in relation to your 
duty under the act, I beg to say that the act apparently does 
not place upon you the responsibility of its enforcement. It is 
your duty to provide, in so far as you are able, employment 
for persons who register. Of course, it is your duty, if you 
have knowledge of any person who is violating the provisions 
of the act, to bring it to the attention of the proper authori- 
ties, in order that they may prosecute such person. No 
duty is imposed upon you to make classifications, nor would 
any classification made by you as to what are useful occu- 
pations and what are not be of any binding effect. Where a 



238 OPINIONS OF THE ATTORNEY-GENERAL. 

person is in doubt as to whether or not the occupation in 
which he is engaged is a useful one, it woukl seem wise for 
such person to register under the act. 

You call my attention to an instance of very great hardship 
of a partially paralyzed man in impoverished circumstances, 
who, in order to register weekly, will be obliged to hire a 
conveyance and travel a considerable distance. Unless he is 
unable to work, the law apparently gives no relief, as the 
provisions of section 4 require that he shall report in person. 
I doubt very much, however, if a man in his physical condition 
would be held to be a man able to work, within the provisions 
of the act. 



To the Con- 
troller of 



County Officers and Employees — Increase in Com- 
pensation — Basis on which Percentage is to be 

DETERMINED — WhO ARE ENTITLED TO RECEIVE IT. 

Gen. St. 1918, c. 260, providing a temporary increase of 10 per cent in salaries not 
previously increased and not exceeding $2,500, applies to all persons in the 
public service whose salaries are paid from the treasuries of the several coun- 
ties, although they may not be strictly county officers or employees. 

Gen. St. 1918, c. 211, establishing the salaries of clerks of police, district and mu- 
nicipal courts at three-quarters of the salary received by the justice of such 
court, to take effect as of June 1, 1917, effected an increase in pay only in the 
cases where the previous act (Gen. St. 1917, c. 340) had not already been 
adopted by the county commissioners. 

The increase provided by the statute is to be computed upon the amount which 
the officer or employee was receiving on July 1, 1917, but is to be added to the 
salary actually established on July 1, 1918. The county commissioners have 
power to correct certain discriminations. 



You have requested my opinion with regard to certain 

AcTOunts. questions which have arisen as to the general scope and effect 

July 26. of Gen. St. 1918, c. 260, entitled "An Act to authorize a 

temporary increase in the compensation of certain employees 

of the counties of the Commonwealth." Section 1 of that act 

is as follows : — 

From and after the first day of July in the current year, all persons 
who are regularly in the employ of the several counties of the common- 
wealth whose annual compensation in full for all services rendered does 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 239 

not exceed twenty-five hundred dollars and whose salaries have not been 
increased by act of the general court passed during the current year, shall, 
until further action of the general court relative to the standardization 
of the salaries of judicial and county officers and employees, receive 
additional temporary compensation equal to ten per cent of the salaries 
received by them on the first day of July in the year nineteen himdred 
and seventeen. 

This applies to "all persons who are regularly in the employ 
of the several counties of the Commonwealth" whose annual 
compensation does not exceed the sum specified. The chief 
difficulty in applying this statute is to determine the meaning 
of this language. It is not apt language to designate public 
oflficers. Furthermore, in a strict sense of the term, few, if 
any, persons can be said to be "regularly in the employ of 
the several counties" in their corporate capacities. They are 
either public officers elected by the people of the counties, or 
public employees appointed by the county commissioners or 
other so-called county officials. It becomes necessary to 
examine with some detail the history of this act and of various 
other statutes that were enacted in connection with it. 

In 1916 the Executive Council, at the request of the General 
Court, undertook an investigation and standardization of 
*' salaries and compensations paid by the commonwealth and 
by the several counties, so far as they are established by the 
commonwealth." The report of the special committee of the 
Council upon this matter was submitted to the General 
Court this year as House Document No. 1175. Part I of 
this document was devoted to departmental ai;d institutional 
officials and employees, and dealt strictly with officials and 
employees of the Commonwealth. Part II was devoted to 
judicial and county officials and employees. It considered 
chiefly the matter of compensation of judicial officers and 
various other public officers usually referred to as county 
officials. It paid little or no attention to minor employees. 

This report was referred to the committee on public service. 
That committee, on March 21, submitted a report (Senate, 
No. 316) recommending the enactment of a statute based 



240 OPINIONS OF THE ATTORNEY-GENERAL. 

upon Part I of the report of the Executive Council. It also 
suggested that there was need of further investigation as to 
the salaries of judicial and county officers, and recommended 
that "the subject of salaries and compensation paid to judicial 
and county officials and employees and to all ot,her officers 
and employees of the commonwealth other than those included 
in" the bill based upon Part I of the committee's report be 
referred to a special recess committee. The bill reported by 
the committee was subsequently enacted, with some changes, 
as Gen. St. 1918, c. 228. The matter of the order for a 
recess committee was recommitted to the committee on public 
service. 

On May 21 the committee on public service submitted a 
further report (Senate, No. 395), stating in substance that 
after further investigation they had become convinced that 
thorough analysis and standardization of county and State 
offices and positions not covered by the bill already reported 
was essential. They say: "Furthermore, we have not gone 
sufficiently deep into the matter of compensation of county 
employees other than those elective and appointive officers 
specified in House, No. 1175. Investigation should be made 
of salaries of janitors, draw tenders and other minor officials 
and employees." The committee recommended five separate 
bills dealing with the salaries of specific officials. They re- 
peated their recommendations for a recess committee to con- 
sider the salaries "paid to judicial and county officials and 
employees, and to all other officers and employees of the 
commonwealth or the counties thereof, elected or appointed, 
other than those included in" the bill recommended in their 
first report. They also reported "a temporary bill which 
makes an attempt in the meantime to offset the increase in 
the cost of living." 

The five separate bills referred to subsequently became 
chapters 261, 263, 272, 284 and 287 of the General Acts of 
1918, dealing with the salaries, respectively, of county commis- 
sioners, county treasurers, district attorneys, judges and 
registers of probate courts and clerks of court. The order for 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 241 

an investigation recommended by the committee was subse- 
quently amended so as to impose the duty of investigation 
upon the Supervisor of Administration, and was enacted as 
chapter 86 of the Resolves of 1918. This resolve applies to 
"the judicial and all other officials and employees, appointive 
or elective, of the commonwealth, except in the department 
of legislation, and the several counties thereof, other than 
those included in senate document number three hundred and 
seventy of the present year." Senate Document No. 370 is 
the proposed bill, which was subsequently enacted as Gen. 
St. 1918, c. 228, above referred to. 

The temporary bill recommended by the committee was 
the original bill which formed the basis of the statute now 
under consideration. As first recommended, however, it 
applied to "all persons who are regularly in the employ of 
the commonwealth or of the counties thereof, as hereinafter 
specified." The persons specified were judges, registers and 
assistant registers of probate, assistant recorders of the Land 
Court, registers and assistant registers of deeds, sheriffs, 
medical examiners and justices, clerks and assistant clerks of 
district courts. The salaries of these officials, except those of 
the judges, registers and assistant registers of probate, are 
paid from the treasuries of the several counties. This bill 
was subsequently redrafted by the ways and means com- 
mittee of the Senate so as to apply to "all persons who are 
regularly in the employ of the commonwealth or of the coun- 
ties thereof" whose compensation did not exceed $2,500, 
without restriction. Still later, various changes in form were 
made, and the bill was again redrafted so as to apply to "all 
persons who are regularly in the employ of the several counties 
of the commonwealth" whose compensation did not exceed 
the specified sum, any reference to persons in the employ of 
the Commonwealth being eliminated. At the same time a 
second section was added establishing the salary of the justice 
of the District Court of Dukes County, and a third section 
dealing with the compensation of assistant recorders of the 
Land Court. In this form the bill was finally enacted. This 



242 OPINIONS OF THE ATTORNEY-GENERAL. 

temporary bill, the resolve for an investigation by the Super- 
visor of Administration and four of the five special bills were 
all approved on May 31. Chapter 287 was approved on 
June 1. 

From the history and language of the act under considera- 
tion and from the provisions of the other related legislation, 
particularly resolve 86, I am led to the conclusion that it 
was the intention of the General Court, by the use in this 
statute of the words "all persons who are regularly in the 
employ of the several counties of the commonwealth," to 
designate as entitled to the proposed 10 per cent increase all 
persons in the public service whose salaries are paid from the 
treasuries of the several counties. The specific reference in 
the bill first drawn to justices, clerks and assistant clerks of 
district courts, who are not strictly county officers but who 
are paid by the counties, and the addition at its final stage 
of section 2, establishing the salary of the justice of the 
District Court of Dukes County, who is thus treated as an 
employee of a county within the scope of the statute as defined 
by its title, point to this conclusion. These suggestions, 
when considered together with the provision that the increase 
granted is to continue "until further action of the general 
court relative to the standardization of the salaries of judicial 
and county officers and employees," which it is contemplated 
will result from the investigation authorized by resolve 86, 
and the statement in the report of the committee on public 
service that this temporary increase is granted "to offset the 
increased cost of living," pending the investigation, all seem 
to indicate that there was no intention to confine the benefits 
of this temporary bill to persons who are strictly county 
officers or employees. The language used is unfortunate 
and gives rise to disturbing doubts, but on the whole I am 
of opinion that the statute must be construed as granting 
increase of salary to all persons otherwise within its terms 
who are by authority of law paid their salaries from the 
treasuries of the several counties of the Commonwealth. 

This statute is limited by its terms to persons otherwise 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 243 

within it "whose salaries have not been increased by act of 
the general court passed during the current year." Gen. St. 
1918, c. 211, established the salaries of clerks of police, dis- 
trict and municipal courts at three-quarters of the salary 
received by the justice of their respective courts. This statute 
was made effective as of June 1, 1917. Gen. St. 1917, c. 340, 
established the salaries of these officials on the same basis, 
except that it provided that that act was to become effective 
upon acceptance by the respective county commissioners. I 
am informed that this 1917 statute was accepted by most if 
not all the county commissioners at varying times before the 
enactment of Gen. St. 1918, c. 211. It follows that, to the 
extent that the 1917 statute had been thus accepted by the 
county commissioners, the 1918 statute did not grant an 
increase in salary but merely provided back pay from June 1, 
1917, to the date of such acceptance. In such cases it is not, 
in my judgment, to be regarded as an increase in salaries by 
the General Court during 1918, within the meaning of chapter 
260, under discussion. If in any case the 1917 statute was not 
accepted by the county commissioners before the enactment of 
Gen. St. 1918, c. 211, in such cases the latter statute did 
actually increase existing salaries, and thus in such cases no 
increase can be allowed under chapter 260. 

In my opinion, in no case are clerks of district courts entitled 
to three-quarters of the 10 per cent increase granted by this 
statute to the judges of the district courts. They are entitled 
to an increase of 10 per cent of their salaries as established 
on July 1, 1917, but to no further increase. 

As the 10 per cent increase granted by this statute is based 
upon "the salaries received by them on the first day of July 
in the year nineteen hundred and seventeen," it, in my 
opinion, applies only to persons who were in the service of 
the county, as herein defined, on that date, and who have been 
regularly in its service since that time. It does not apply to 
persons appointed or employed after July 1, 1917. 

The increase provided for by this statute, being based upon 
the salary received on July 1, 1917, is to be computed upon 



244 OPINIONS OF THE ATTORNEY-GENERAL. 

the amount which the officer or employee was entitled to 
receive at that time, and in no other manner. The increase 
is to be added to the salary which the officer or employee 
would have received but for the enactment of this statute. 
If his salary was readjusted in January, 1918, on the basis 
of the business of his office in 1917, as in the case of registers 
and assistant registers of deeds, the increase must be added, 
by the terms of the statute, to the readjusted salary of 1918. 
If, in the ease of salaries not fixed by act of the Legislature, 
county commissioners or other persons in authority have 
granted increases subsequent to July 1, 1917, and prior to the 
enactment of this statute, its language seems to require the 
addition of the increase granted to such increased salaries. 
In other words, the increase is to be added to the salary 
actually established on July 1, 1918. It is to be noted, how- 
ever, that if this last-mentioned result works a discrimination 
in any cases, it is well within the power of the county com- 
missioners or other constituted authority to withdraw increases 
granted during the year, in order that certain employees may 
not have the benefit of two increases within a year if such a 
result is not, in their opinion, justified. 



Civil Service — Fire Department — Height required for 
Firemen. 

St. 1896, c. 424, does not restrict the power of the Civil Service Commission to 
certify persons for appointment as firemen to those who are 5 feet 5 inches in 
height or over, but prevents them from requiring any greater height. 

S'rvi'ceCom- ^ou rcqucst my opinion as to whether the provisions of St. 
'"Igfg''' 1896, c. 424, are now in force. The provisions of that chapter 

juiy_27. ^^^ ^^^ incorporated in R. L., c. 19, § 11, which is as 

follows : — 

Persons five feet five inches in height or over, if otherwise qualified, 
shall be eligible to appointment in the fire department of the city of 
Boston, 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 245 

These provisions were not affected by subsequent legislation 
included in St. 1904, c. 194, and St. 1911, c. 352. 

Your remaining question is whether, by reason of the pro- 
visions of R. L., c. 19, § 11, your Commission is restricted to 
certifying persons who are 5 feet 5 inches in height or over. 
This construction could arise only by implication. The pro- 
visions of the statute as originally passed (St. 1896, c. 424) 
seem to rebut this conclusion. Said chapter 424 reads as 
follows : — 

Persons five feet five inches in height, and over, shall be eligible to 
appointment on the fire force of the city of Boston, if otherwise qualified ; 
and no rule shall be made by the civil service commissioners in conflict 
with the provisions of this section. 

Prior to the passage of said chapter 424 the minimum height 
of applicants for fire service in Boston was fixed by the civil 
service rules. Obviously, this rule was the cause of the passage 
of said chapter 424 of the Acts of 1896. As there is no rule at 
the present time fixing the height of applicants to the fire 
service of the city of Boston, I am of the opinion that you are 
warranted in certifying applicants irrespective of height. 



District Attorneys — Power over Cases in Inferior 
Courts. 

The power of a district attorney over a criminal case arising within his district is as 
complete before it reaches the Superior Court as after, and the statutory re- 
quirement (R. L., c. 7, § 17) as to certain appearances in the Superior Court 
does not in any way lessen his power to appear in the inferior courts. 

You have requested my opinion as to your power in relation to the District 
to criminal cases which have not yet reached the Superior southern 
Court either by way of appeal, by indictment or by the iliis"' ' 
defendant's being held to await the action of the grand jury. ' 

I am of the opinion that your power over criminal cases 
arising within your district is as complete before they reach the 
Superior Court as after reaching that court. 



246 OPINIONS OF THE ATTORNEY-GENERAL. 

On May 15, 1917, I had occasion to advise the House of 
Representatives as to the powers of the Attorney-General and 
the district attorneys. I then stated in relation to the powers 
of the Attorney-General that — 

The powers of the Attorney-General are not defined by the pro\dsions 
of the Constitution. He is the general law officer of the Commonwealth, 
and usuallj^ it has been assumed that, where there is no pro\'ision of 
statute to the contrarj^ he may represent the Commonwealth in all 
proceedings of every nature in which the Commonwealth is a party or 
interested. 

It was said in Commonicealtli v. Tuch, 20 Pick. 364, that — 

The authority of the Attorney-General when present, to conduct and 
manage all criminal prosecutions, is unquestionable. It is his exclusive 
duty to do so; and although he may seek assistance from his brethren of 
the bar, yet a private prosecutor has no right to employ counsel to aid him. 
The law, in the district attorneys, has pro^^ded the proper assistance. 

Within their respective districts I am of the opinion that the 
power of the district attorneys in the administration of the 
criminal law is as complete as that of the Attorney-General, 
unless the Attorney-General sees fit to supersede them or to 
assume the direction of the investigation and trial of criminal 
cases. 

In my judgment, the purpose of R. L., c. 7, § 17, was not 
to restrict the power of the district attorneys to appearing in 
the Superior Court, but was for the purpose of making it 
mandatory upon the district attorneys to appear for the 
Commonwealth in all cases, criminal or civil, in which the 
Commonwealth was a party, leaving it to their discretion as 
to how far they should appear in cases in which the Common- 
wealth was a party in the inferior courts. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 247 



Public Defence — Right of Governor and Council to 

ERECT AND REMOVE TEMPORARY OfFICE BuILDING ON 

State Property. 

The Governor and Council have authority to erect a temporary building on the 
State House grounds for use as office room for the Committee on Public Safety 
and the Food and Fuel Administration. 

In the absence of legislative direction, the Governor and Council have authority to 
request that such a building be taken down at least six months after the close 
of the war. 

Under the provisions of Gen. St. 1917, c. 342, relating to the public safety or de- 
fence, and Mass. Const., Pt. II, c. II, § I, art. VII, the Governor may use any 
property of the Commonwealth for the defence of the Commonwealth, and, 
with the approval of the Council, may take possession of private property in 
case of such necessity. In the absence of direction by the Legislature, the 
power of the Governor in this respect is full and complete. 

You request my opinion as to whether the Governor or the Tothe 
Governor and Council have authority to erect a temporary mp°^ 



wooden building on the State House grounds, adjacent to the 
west wing of the State House, for use as office room for the 
Committee on Public Safety and the Food and Fuel Adminis- 
tration; and also if the Governor or the Governor and Council 
have authority to request that the building be taken down at 
least within six months after the close of the war. 
Gen. St. 1917, c. 342, § 6, provides that — 

Whenever the governor shall believe it necessary or expedient for the 
purpose of better securing the public safety or the defence or welfare of the 
commonwealth, he may with the approval of the council take possession: 
(a) of any land or buildings, machinery or equipment. . . . 

It further provides : — 

He may use and employ all property so taken possession of for the 
service of the commonwealth or of the United States, for such times and 
in such manner as he shall deem for the interests of the commonwealth or 
its inhabitants. 

Section 11 of the same act provides: — 

The governor shall have full power and authority to co-operate with 
the federal authorities and with the governors of other states in matters 
pertaining to the common defence, and with the military and naval forces 
of the United States and of the other states. 



July 30. 



248 OPINIONS OF THE ATTORNEY-GENERAL. 

In a communication to you bearing date Nov. 9, 1917, I 
expressed some doubt as to whether the provisions of this act 
as to the taking possession of property included property of the 
Commonwealth, or at least property devoted by the Common- 
wealth to a specific purpose. I then called to your attention 
that, under the provisions of Article VII of Section I of Chapter 
II of Part the Second of the Constitution, the Governor was 
authorized, "for the special defence and safety of the common- 
wealth, to assemble in martial array, and put in warlike 
postm-e, the inhabitants thereof, and to lead and conduct them, 
and with them to encounter, repel, resist, expel, and pursue, 
by force of arms, as well by sea as by land, within or without 
the limits of this commonwealth, and also to kill, slay, and 
destroy, if necessary, and conquer, by all fitting ways, enter- 
prises, and means whatsoever, all and every such person and 
persons as shall, at any time hereafter, in a hostile manner, 
attempt or enterprise the destruction, invasion, detriment, or 
annoyance of this commonwealth." 

It is my view that the provisions of Gen. St. 1917, c. 342, 
were passed to supplement this power given by the Constitu- 
tion, providing means by which the Governor, with the advice 
and consent of the Council, could take possession, for the 
purpose of the defence of the Commonwealth, of private 
property. 

Accordingly, in my judgment, if the Governor is of the 
opinion that it is necessary to use property of the Common- 
wealth for the purpose of repelling or resisting hostile attempts 
or enterprises for the destruction, invasion, detriment or annoy- 
ance of the Commonwealth by those now at war with this 
country, or to conquer them, he is authorized to take posses- 
sion of and use such property; and he may, with the approval 
of the Council, under the provisions of said chapter 342, take 
possession of private property in case of such necessity. The 
authority given the Governor under the provisions of said 
Article VII is to be exercised, as therein stated, "agreeably to 
the rules and regulations of the constitution, and the laws of 
the land, and not otherwise." I do not think this provision 



HENEY C. ATTWILL, ATTORNEY-GENERAL. 249 

of the Constitution is to be construed as requiring an act of 
the Legislature before the authority can be exercised, but is 
to be construed as giving the Legislature power to regulate and 
control the exercise of it. Where no such regulation or control 
is exercised, the power of the Governor is full and complete. 

It follows, in my judgment, that unless there is some statute 
prohibiting the taking possession of land or property of the 
Commonwealth which the Governor may determine to be 
necessary for the proper defence of the Commonwealth, he is 
authorized to take possession of such land or property. I have 
examined the statutes and I find no provision prohibiting the 
exercise of this power in relation to the State House grounds. 
The only provision relating to the subject is contained in 
R, L., c. 10, § 20, which provides: — 

The land now taken by the commonwealth about the state house shall 
remain an open space, and no railroad or railway shall be constructed or 
operated in, upon or over the same. 

This statute was passed in 1894, and relates to land other 
than that referred to in your communication. The land 
referred to in your communication was taken under authority 
of Gen. St. 1915, c. 256, and Gen. St. 1916, c. 250. 

If, therefore, you deem the necessity exists, you may take 
possession of the land, and if the Council approves you may 
expend out of the appropriation made available by Gen. St. 
1918, c. 278, such sum as may be necessary for the building. 

As to your second question, I think that the Governor and 
Council can require the building to be taken down within six 
months after the war, as the only authority for its construc- 
tion and maintenance would be the necessity arising out of 
the war. The necessity having been removed, its maintenance 
would no longer be authorized. Of course, if the Legislature 
should, after the erection of the building, authorize or require 
its use for specific purposes, the Governor and Council would 
not have authority to remove it. 



250 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Com- 
missioner of 
Education. 

1918 
August 1. 



Teachers' Retirement iVcT — Pensioner who becomes 
Member of the General Court, 

A teacher, other than one excepted by St. 1913, c. 657, § 1, as amended, could not, 
after Feb. 1, 1919, while receiving a pension under the Teachers' Retirement 
Act, be paid for services rendered as a member of the General Court. 

You request my opinion as to whether a teacher pensioned 
under the terms of the Teachers' Retirement Act would forfeit 
his pension if he served as a member of the General Court. 

So far as I am aware, there is no provision of law in force at 
the present time applicable to such a case. St. 1913, c. 657, 
§ 1, as amended by Gen. St. 1916, c. 88, appHes only to per- 
sons who receive pensions or annuities from cities, towns or 
counties. However, by Gen. St. 1918, c. 257, § 135, the fore- 
going section was amended so as to read as follows : — 

No person while receiving a pension or an annuity from the common- 
wealth, or from any county, city or town, except teachers who on March 
thirty-first, nineteen hundred and sixteen, were receiving annuities not 
exceeding one hundred and eighty dollars per annum, shall, after the date 
of the first payment of such annuity or pension, be paid for any service, 
except jury service, rendered to the commonwealth, county, city or town, 
from whose treasury said pension or annuity is payable. 



This amendment becomes effective on Feb. 1, 1919. 

It would seem that after that date a teacher pensioned 
under the terms of the Teachers' Retirement Act, other than 
one excepted from the operation of this provision by its terms, 
could not be paid for services rendered to the Commonwealth 
as a member of the General Court while receiving a pension. 
It will be noted, however, that the statute quoted in no way 
forfeits or affects any pension or annuity. Its sole operation 
is to forbid payment for services rendered in certain cases to 
persons who are receiving a pension. Thus, to answer your 
specific question, a teacher pensioned under the terms of the 
Teachers' Retirement Act would not forfeit his pension if he 
should serve as a member of the General Court. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 251 



Public Service Commission — Jurisdiction of Appeal by a 
Street Railway Company from City Regulations, in 
Certain Cases. 

The Public Service Commission has no jurisdiction of an appeal by a street railway 
company from the rules and regulations of a city relating to the licensing of 
public vehicles, when the city has not accepted the provisions of Gen. St. 1916, 
c. 293, and the vehicles in question are not owned or operated by a street rail- 
way company. 

You have called my attention to the following situation : — t^ the Pub- 

The city of New Bedford has not accepted Gen. St. 1916, commissfon. 
c. 293, entitled " An Act to authorize the licensing by cities August lo. 
and towns of motor vehicles carrying passengers for hire." 
That city, however, has adopted certain ordinances relatihg to 
the licensing of public vehicles. The Union Street Railway 
Company operates a street railway in the city of New Bedford, 
and has not applied for or been granted the right to acquire, 
own and operate, for the transportation of passengers or 
freight, motor vehicles not running upon rails or tracks, which 
right might be granted to it by your Commission under the 
provisions of Gen. St. 1918, c. 226. The street railway company 
however, has appealed to your Commission from the orders, rules 
and regulations of the city of New Bedford which are in force. 

You have requested my opinion as to whether your Commis- 
sion has jurisdiction in the premises. 

This jurisdiction, if it exists, is by virtue of the last-men- 
tioned statute. This act is entitled, "An Act to permit street 
railway companies to use motor vehicles not running on rails 
or tracks, and to make operators of such vehicles common 
carriers subject to the supervision of the Public Service Com- 
mission. " 

Section 1 of the statute authorizes a street railway company, 
with the approval of your Commission, to acquire, own and 
operate such vehicles for the purposes mentioned. 

Section 2 declares operators of such vehicles "for the car- 
riage of passengers for hire in such a manner as to afford a 
means of transportation similar to that afforded by a street • 
railway ... " to be common carriers, and subject to orders. 



252 OPINIONS OF THE ATTORNEY-GENERAL. 

rules and regulations prescribed by the licensing authorities 
"of any city or town which has accepted the provisions of 
chapter two hundred and ninety-three of the General Acts of 
nineteen hundred and sixteen. Any petitioner, or any street 
railway company aggrieved by such orders, rules or regula- 
tions, may appeal to the public service commission." 
Section 3 is as follows : — 

In cities or towns that have not accepted the provisions of said chapter 
two hundred and ninety-three wherein a street railway exists, and wherein 
a line of motor vehicles has been established under the provisions of 
section one of this act, the pubUc service commission shall have original 
jurisdiction over persons, firms or corporations mentioned in section two, 
and may prescribe rules and regulations until the city or town accepts 
the provisions of said chapter two hundred and ninety-three whereupon 
original jurisdiction shall rest in the city or town, subject to appeal to the 
public service commission as provided in section two. 

It is apparent from the language of section 2 quoted above 
that the appeal therein provided for is from orders, rules and 
regulations prescribed or adopted by the licensing authorities 
of cities or towns which have accepted Gen. St. 1916, c. 293, 
and does not extend to rules, ordinances, etc., adopted in a 
city or town which has not accepted said act. 

In the latter class, in which it appears from your statement 
the city of New Bedford falls, the only authority of your 
Commission with reference to rules and regulations relating to 
such vehicles so employed arises under the provisions of sec- 
tion 3, and is Hmited, as expressly stated therein, to such 
cities or towns "wherein a street railway exists, and wherein 
a Une of motor vehicles has been established under the provi- 
sions of section one." 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 253 



Military Service — Absent Voters — Registration before 
September 1. 

An application for registration by a person in the military or naval service of the 
United States to permit his voting in a State election under Gen. St. 1918, 
c. 293, must be actually received by the Secretary of the Commonwealth, or 
in his office, not later then September 1. 

You have requested my opinion as to whether persons in the Tothe 
military or naval service of the United States may lawfully and council. 
be permitted to vote at the next election if their applications A ugust u . 
for registration under the provisions of Gen. St. 1918, c. 293, 
are filed with the Secretary of the Commonwealth later than 
September 1 of the current year. 

Section 3 of that act provides, in part : — 

Any person in the military or naval service of the United States who 
is a qualified voter in any city or town of this commonwealth may apply, 
in writing, to the secretary of the commonwealth for registration as an 
absent voter not later than September first in the year preceding the 
election. 

It would seem that the insertion of the date mentioned in 
this sentence could have been intended only for the purpose 
of fixing a time limit before which applications for registration 
must be made, in order to insure ample time for completing 
the lists of qualified absent voters before the election day. 
Any other interpretation would result in rendering the last 
eleven words of the sentence of no practical effect. The mere 
filling out of an application, without presenting the same to 
the Secretary of the Commonwealth, would not constitute 
applying "to the secretary of the commonwealth," and any 
interpretation which held that to be the only act required to 
be done before September 1 would also result in nullifying 
any purpose which the insertion of the time limit could have 
been intended to fulfil. 

I am of the opinion that in order to entitle the applicant 
to vote in the coming election, applications for registration 
must be received by the Secretary of the Commonwealth, 
or in his office, not later than September 1 of the current year. 



254 OPINIONS OF THE ATTORNEY-GENERAL. 



Eight-hour Law for State Employees — Extra Work — 
Emergency. 

The employment of an engineer and janitor at a State normal school in doing clean- 
ing work, in addition to the regular employment, is a violation of the eight- 
hour law, unless the dirt to be removed is of such a character as to endanger 
public health or public safety. 



To the Com- 
missioner of 
Education. 

1918 
September 9. 



You have requested my opinion as to whether the employ- 
ment of an engineer and janitor at a State normal school in 
doing cleaning work, in addition to the regular employment, 
is in \'iolation of the eight-hour law. 

The provisions of law which apply are found in St. 1911, 
c. 494, as amended, sections 1 and 4 of which are as follows: — 

Section 1. 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 Re\ased 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 to forty-eight hours in any one week, and it shall be unlawful 
for any officer of the commonwealth or of any county therein, or of any 
such city or town, or of any such contractor or sub-contractor or other 
person whose duty it shall be to employ, 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, or more than forty-eight hours in any one week, except in 
cases of extraordinary emergency. Danger to property, life, 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 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 emplojnnent or to obstruct 
or prevent the obtaining of employment or to refrain from employing in 
the future, shall each be considered to be "requiring" within the mean- 
ing of this section. Engineers shall be regarded as mechanics within the 
meaning of this act. 

Section 4. This act shall not apply to the preparation, printing, 
shipment and delivery of ballots to be used at a caucus, primary, state. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 255 

city or town election, nor during the sessions of the general court to per- 
sons employed in legislative printing or binding; nor shall it apply at any 
time to persons emploj'^ed in any state, county or municipal institution, 
on a farm, or in the care of the grounds, in the stable, in the domestic or 
kitchen and dining room service or in store rooms or offices, nor to per- 
sons emploj^ed by the trustees of the Massachusetts nautical school, on 
boats maintained by the district police for the enforcement of certain 
laws in the waters of the commonwealth, or in connection with the care 
and maintenance of state armories. 

Apparently, this employment does not come within any of 
the exceptions found in the statute, unless within the one "in 
cases of extraordinary emergency. Danger to property, life, 
public safety or public health only shall be considered cases 
of extraordinary emergency within the meaning of this sec- 
tion." 

The w^ork of cleaning up the buildings to which extensive 
repairs have been made could hardly be said, in my opinion, 
to come within this definition, unless the dirt to be removed 
was of such a character as to endanger public health or, 
because of its highly inflammable nature, to endanger public 
safety. 



Fraternal Benefit Societies — Reserve Requirement — 
Financial Condition — Surrender Values and With- 
drawal Equities. 

A fraternal benefit society whose rates are based upon a table of mortality lower 
than the American Experience Table is not authorized to grant paid-up pro- 
tection or cash surrender values, even though at a particular moment its 
reserve may equal that required by the American Experience Table. 

The requirement of St. 1911, c. 628, as to accumulating and maintaining a reserve 
by a fraternal benefit society, refers to the general financial strength and per- 
manent system of the organization, and not to a financial condition which may 
be temporary. 

You have requested my opinion as to whether a fraternal Jnce Com-"^' 
benefit society whose rates are based upon a table of mortality "''^i°9°f ' 
lower than the American Experience Table and 4 per cent ^^p^!^'"^- 
interest may grant to its members extended or paid-up pro- 
tection or cash surrender values if, as a matter of fact, on the 



256 OPINIONS OF THE ATTORNEY-GENERAL. 

date of its annual report the reserve thereby shown equals that 
required by the American Experience Table of Mortality. 

St. 1911, c. 628, § 5, subsection 2, as amended by Gen. St. 
1917, c. 108, pro\'ides: — 

Any society which shall show by the annual valuation hereinafter pro- 
vided for that it is accumulating and maintaining the full reserve required 
by a table of mortahty not lower than the American Experience Table 
and four per cent interest, may grant to its members such extended or 
paid-up protection or such withdrawal equities as its constitution and 
laws may provide: 'provided, that such grants shall be equitable, and shall 
in no case exceed in value the portion of the reserve derived from the pay- 
ments of the individual members to whom they are made. 

The annual valuation referred to is dealt with in section 22. 
This section, briefly stated, requires an annual statement, 
under oath, of the financial condition of the society and its 
transactions for the year. Subdivision h thereof provides: — 

In addition to the annual report herein required, every society on the 
lodge system and authorized to pay benefits in this commonwealth upon 
the death of its members, . . . shall annually report to the insurance 
commissioner a valuation of its certificates providing for death benefits in 
force on December thirty-first last preceding: . . . The said report of 
valuation shall show, as contingent liabilities, the present mid-j^ear value 
of the death benefits promised in the outstanding contracts of the society, 
and, as contingent assets, the present mid-year value of the future net 
mortuary contributions provided in the constitution and laws as the same 
are in practice actually collected, not including therein any value for the 
right to make extra assessments. 

. . . The legal minimum standard of valuation shall be the National 
Fraternal Congress Table of Mortality, as adopted by the National Fra- 
ternal Congress, August twenty-three, eighteen hundred and ninety-nine; 
or, at the option of the society, any higher mortality table; or, at its 
option, it may use a mortality table based on the society's own experience 
of at least twenty years, and covering not less than one hundred thousand 
lives, with interest assumption not higher than four per cent per annum, 
whichever mortality table is adopted. Every such valuation report 
' shall set forth clearly and fuUy the mortality and interest bases and the 

method of valuation. . . . 

It is to be noted that the language of section 5, quoted 
above, is not that the society has accumulated the full reserve 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 257 

required by the American Experience Table, but is accumu- 
lating and maintaining such full reserve. It by no means 
follows that because at a particularly advantageous moment 
a society happens to have a reserve which satisfies the Ameri- 
can Experience Table it can be said that the society is accu- 
mulating such reserve. Many situations can be imagined 
where for a short time such a condition might exist, although 
because of the company's lower rates, it could not reasonably 
be predicted that such a state would continue; for example, 
a new society recently organized might, by reason of an actual 
experience for a few years of a lower rate of mortahty than 
that upon which its dues were based, have a reserve equal to 
that required by the American Experience Table. 

On the other hand, a sudden large withdrawal of members 
from a particular society, whereby the withdrawing members 
forfeited the reserves which their previous payments had pro- 
vided for their policies, might result in momentarily doubling 
the reserve, and such society might find that it had at that 
particular moment reserves in excess of those required by the 
American Experience Table. 

It does not seem that the Legislature could have intended 
that the right of a society to grant the benefit specified in this 
section should depend upon such fluctuations. A society can 
hardly be said to be accumulating a reserve required by a 
particular table of mortality unless the rates charged to its 
members are based upon that or a higher table, or its reserves 
have been maintained at the required figure over a period of 
time sufficiently long to warrant the inference that it is a 
continuing condition. 

I am of the opinion that a fraternal benefit society is not 
entitled to avail itself of the privileges granted by section 5, 
subsection 2, referred to above, unless its rates are based upon 
the American Experience Table and 4 per cent interest, and it 
has the full reserve required thereby, or such a reserve has 
been maintained over a sufficient number of years so that it 
can be inferred to be a continuing accumulation. 



258 OPINIONS OF THE ATTORNEY-GENERAL. 



Vital Statistics — Transmission of Returns by City or 
Town Clerks to the Secretary of the Commonwealth 
more often than Once a Year. 

The Secretary of the Commonwealth may permit, but cannot require, clerks of 
cities and towns to transmit copies of records of births and marriages at inter- 
vals of less than one year. 

Se^cre^tary. You havc requested my opinion as to whether, under the 

September 10. provisions of R. L., c. 29, § 18, as amended by St. 1903, c. 305, 
and St. 1906, c. 415, you can permit city and town clerks to 
transmit copies of the records of births and marriages at inter- 
vals of less than one year. 

This statute reads, in part, as follows : — 

The clerk of each town and of each city . . . shall annually . . . trans- 
mit to the secretary of the Commonwealth certified copies of the records 
of births and marriages recorded therein during the preceding calendar 
year, with certified copies, upon blanks provided by the secretary, of all 
such records and corrections in records of births and marriages as may not 
have been previously returned. 

This statute also fixes the particular day on or before which 
such action shall be taken. 

This statute, taken literally, requires an annual return, 
but the act clearly is designed to bring it to pass that the 
records in the office of the Secretary of the Commonwealth 
shall be full and complete. 

While under its terms you could not require city and town 
clerks to make returns more often than once a year, if they 
voluntarily do so the full intent and purpose of the act are 
accomplished if, subsequent to the end of a particular year, 
and before the date fixed by the statute, a return is made 
transmitting any records which have not previously been 
forwarded to the Secretary of the Commonwealth. 

I am of the opinion that you are authorized to permit town 
and city clerks to transmit copies of the records of births and 
marriages at intervals of less than one year. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 259 



Boston Elevated Railway — Public Service Commission — 
Filing of Schedule of Fares. 

The trustees of the Boston Elevated Railway Company are not subject to the 
provisions of St. 1913, c. 784, requiring every common carrier to fil« its sched- 
ule of fares and transfer privileges with the Public Service Commission. 

The act providing for the public operation of the Boston Elevated Railway Com- 
pany (Spec. St. 1918, c. 159) removes the control and regulation of its fares 
from the Public Service Commission. 

You have requested my opinion as to whether the trustees To the Public 
of the Boston Elevated Railway Company are required to file mission. 
with the Public Service Commission the schedules of fares put Sep tember 3o. 
in force or which may be adopted by them. 

You have called my attention to the provisions of St. 1913, 
c. 784, § 20, in part, as follows : — 

Every common carrier shall file with the commission and shall plainly 
print and keep open to public inspection, schedules showing all rates, 
joint rates, fares, telephone rentals, tolls, classifications and charges for 
any service, of every kind rendered or furnished, or to be rendered or fur- 
nished, by it within the commonwealth, . . . No common carrier shall, 
except as otherwise provided in this act, charge, demand, exact, receive, 
or collect a different rate, joint rate, fare, telephone rental, toU or charge 
for any service rendered or furnished by it, or to be rendered or furnished, 
from that appUcable to such service as specified in its schedule filed with 
the commission and in effect at the time. 

St. 1913, c. 784, §§ 20 and 21, provide a comprehensive 
scheme for regulation of rates by and through the Public 
Service Commission. Briefly summarized, they require the 
filing of schedules of all rates, fares, etc., and forbid the collec- 
tion of any rates or fares not shown upon the schedule filed 
with the Commission and in effect at the time. They forbid 
putting into effect new rates unless the proposed new schedule 
has been on file a specified number of days, or unless such 
action is especially permitted by the Commission, and permit 
the suspension by the Commission of any proposed schedules 
pending investigation as to the reasonableness of the rates 
involved. 

Spec. St. 1918, c. 159, entitled "An Act to provide for the 
public operation of the Boston Elevated Railway Company," 



260 OPINIONS OF THE ATTORNEY-GENERAL. 

provides for the appointment of a board of public trustees to 
take over the management and operation of the railway 
system owned and operated by that company. By section 2 
it is enacted that the trustees "shall have the right to regulate 
and fix fares, including the issue, granting and withdrawal of 
transfers, and the imposition of charges therefor, and shall 
determine the character and extent of the service and facilities 
to be furnished, and in these respects their authority shall be 
excludive and shall not be subject to the approval, control or 
direction of any other state board or commission." 

Sections 6 to 10, inclusive, of that act provided a detailed 
method for fixing rates upon the Boston Elevated Railway 
system. It is provided that the trustees shall "from time to 
time ... fix such rates of fare as will reasonably insure suffi- 
cient income to meet the cost of the service." They are 
required within sixty days after their appointment and quali- 
fication to "fix and put in operation rates of fare which in 
their judgment will produce sufficient income to meet the cost 
of the service . . . , " and within sixty days thereafter to — 

adopt and pvhlish a schedule of eight different grades of fare, of which 
four shall be below and four above the rate of fare first established ; and 
whenever by reason of any change in the existing rate of fare there are 
less than four grades, either above or below the rate then m force, the 
trustees shall forthwith adopt and publish a schedule of additional grades 
of fare so that there shall always be not less than four grades of fare above 
and below the existing rate of fare. 

If at any time the trustees shall be of opinion that said rates of fare or 
schedule should be changed, either with regard to the method or basis 
upon which the fares and transfer privileges are established, or because 
the steps between the different grades are too small or too great, or for 
any other reason, the trustees may adopt, publish, and put in effect new 
schedules or rates of fare to take the place of the existing schedule or 
rates of fare. 

The trustees are required, if the reserve fund created has 
upon certain days increased or decreased above or below 
established amounts, to put in effect the next lower or higher 
grade of fare under the schedules made and published as 
provided above, and to do this "within one month." 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 261 

It is obvious from the provisions of the special act that the 
method of fixing fares therein provided is entirely inconsistent 
with the system established by the Public Service Commission 
act, and that it was the intention of the Legislature to remove 
the matter of fares upon the Boston Elevated system from the 
operation of that act. The provision of section 2, that the 
authority of the trustees "shall be exclusive and shall not be 
subject to the approval, control or direction of any other state 
board or commission," is conclusive as to this. 

If the requirement of the Public Service Commission law as 
to filing of schedules were an independent provision of law, 
there might be some basis for the contention that such filing 
was for the purpose of public information, and consequently 
would continue in force after the passage of the special act 
with reference to the Boston Elevated Railway Company; but 
it appears that this provision is but one step in the system 
provided by the Public Service Commission law for the control 
and regulation of rates. Inasmuch as that control and regula- 
tion with reference to this company have been taken out of 
the hands of the Pubhc Service Commission, it does not seem 
to me that any portion of that law deahng with the regulation 
of rates is longer applicable to the Boston Elevated Railway 
Company. 

The provision of the special act that the trustees shall 
"publish" the schedules adopted by them indicates that public 
information is to be given in that manner rather than by filing 
with any commission. 

Accordingly, I am of the opinion that the trustees of the 
Boston Elevated Railway Company are not required to file 
with the Public Service Commission the schedules of fares and 
transfer privileges which have been or may be adopted by 
them. 



262 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Insur- 
ance Com- 
missioner. 



Insurance — Criminal Law — Aiding Unlicensed Agent. 

An insurance company does not incur criminal liability under the insurance law 
(St. 1907, c. 576) by issuing a contract of insurance with knowledge that it has 
been negotiated through the efforts of a person not licensed to act as an insur- 
ance agent or broker. 

A statute which fully regulates certain transactions, and in terms imposes a penalty 
upon one party to such transactions if carried on without a license, is not to 
be construed as creating a criminal responsibility upon other parties to such 
transactions who are not specifically mentioned. 

You have requested my opinion as to whether under vary- 
ing circumstances tending to show knowledge or reasonable 
ground for knowledge on the part of an insurance company or 
its general agent that a contract of insurance issued by the 
company had been negotiated through the efforts of a person 
not licensed to act either as an insurance agent or broker, the 
insurance company or general agent could be held guilty of 
aiding and abetting the unlicensed person in the offence com- 
mitted by him. 

Such action on the part of the unlicensed person constitutes 
a violation of the following provisions of the insurance law: — 



St. 1907, c. 576, §§ 92 (as amended), 98, 107 and 120. 

Section 92. . . . Whoever shall assume to act as such agent or, unless 
a licensed broker, shall, in any manner, for compensation, aid in negoti- 
ating contracts of msurance on behalf of such corporation for a person 
other than himself, prior to the issuing of a license as aforesaid, or after 
receiving notice of such finding of unsuitability, or after the determin- 
ation of the license or renewal, shall be subject to the penalties of section 
one hundred and twenty. 



Section 98. Whoever, for compensation, not being the appointed 
agent or officer of the company in which any insurance or reinsurance is 
effected, acts or aids in any manner in negotiating contracts of insurance 
or reinsurance or placing risks or effecting insurance or reinsurance for a 
person other than himself, shall be an insurance broker, and no person 
shall act as such broker, except as provided in section ninety-five. 

A person not a duly Ucensed insurance broker, who for compensation 
solicits insurance on behalf of any insurance company, or transmits for 
a person other than himself an appUcation for or a poHcy of insurance to 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 263 

or from such company, or offers or assmnes to act in the negotiation of 
such insurance, shall be an insurance agent within the intent of this act, 
and shall thereby become liable to all the duties, requirements, liabilities 
and penalties to which an agent of such company is subject. 

Section 107. A person who assumes to act as an insurance agent or 
insurance broker without license therefor as herein provided, or who acts 
in any manner in the negotiation or transaction of milawful insurance 
with a foreign insurance company not admitted to do business in this 
commonwealth, or who, as principal or agent, violates any provision of 
this act relative to the negotiation or effecting of contracts of insurance, 
shall be punished for each offence by a fine of not less than one hundred 
nor more than five hundred dollars. 

Section 120. Wlioever violates any provision of this act, the penalty 
whereof is not specifically provided for herein, shall be punished by a fine 
of not more than five hundred dollars. 

Violation of these provisions would constitute a misdemeanor, • 
and it is familiar law that as to most misdemeanors a person 
who aids and abets another in the commission of the offence, 
or does acts which, if the offence were a felony, would render 
him liable to prosecution as an accessory, is subject to prosecu- 
tion as a principal. 

This statement, however, is not true as applied to all misde- 
meanors, as there are certain offences in which persons who 
merely solicit, aid or abet the principal are not subject to 
prosecution. The dividing line between the two classes is 
decidedly indefinite, and the courts have supplied no rule of 
general application by w^hich it can be said with certainty that 
an offence falls clearly in one class or the other. 

Certain writers have attempted to draw a line between 
things regarded as mala prohibita as opposed to things viala in 
se, and further, to create a class of so-called "police" offences 
as to which it is said that in general accessories are not indict- 
able. See Wharton's Criminal Law, §§ 223, 239. 

Such line of distinction can hardly be said to prevail in this 
jurisdiction. For example, in the case of Commonwealth v. 
Sherman, 191 Mass. 439, violation of speed laws with reference 



2C4 OPINIONS OF THE ATTORNEY-GENERAL. 

to an automobile was held to render a man who aided and 
abetted liable to prosecution as principal offender. 

Nevertheless, it has been said by one of the greatest judges 
of this State that "one consideration, however, is manifest in 
all the cases, and that is, that the offence proposed to be 
committed, by the counsel, advice or enticement of another, 
is of a high and aggravated character, tending to breaches of 
the peace or other great disorder and violence, being what are 
usually considered mala in se, or criminal in themselves, in 
contradistinction to mala yroMhita, or acts otherwise indifferent 
than as they are restrained by positive law." Commonwealth 
v. Willard, 22 Pick. 476, 478. In that case a person purchas- 
ing intoxicating liquors from an unlicensed person was held not 
to be guilty of an offence. The real ground of the decision 
seems to be set forth in the following quotation : — 

There is another view of the subject, which we think has an important 
bearing on the question, if it is not indeed decisive. The statute imposes 
a penalty upon any person who shall sell. But every sale imphes a pur- 
chaser; there must be a purchaser as well as a seller, and this must have 
been known and understood by the Legislature. Now, if it were intended 
that the purchaser should be subject to any penalty, it is to be presumed 
that it would have been declared in the statute, either by imposing a 
penalty on the buyer in terms, or by extending the penal consequences of 
the prohibited act to all persons aiding, counselling or encouraging the 
principal offender. There being no such provision in the statute, there 
is a strong implication that none such was intended by the Legislature. 

Ace. Lott V. United States, 205 Fed. Rep. 28; see also, Common- 
wealth V. Churchill, 136 Mass. 148. 

In the present case the offence consists in aiding in the 
negotiation of an insurance contract without being licensed as 
an agent or broker. Every such contract, of course, must have 
as one party an insurance company represented by some in- 
dividual as its duly authorized officer or agent. The same 
reasoning that was applied in the case of Commonwealth v. 
Willard would seem to be decisive of the present case. 

A statute as complete and comprehensive as the law of this 
Commonwealth with reference to insurance would seem to 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 265 

make doubly valid the reasoning that if the Legislature had 
intended to penalize the company or its officer or agent acting 
for it they would have been specifically mentioned. 

By St. 1907, c. 576, as amended and supplemented, there is 
the most detailed regulation of the transaction of insurance 
business in this Commonwealth. 

By section 3 it is made unlawful "for a company to make a 
contract of insurance upon or relative to any property or 
interests or lives in this commonwealth, or with any resident 
thereof, or for any person as insurance agent or insurance 
broker to make, negotiate, solicit or in any manner aid in the 
transaction of such insurance," except as authorized by certain 
statutes of this Commonwealth. 

There is a detailed provision for the organization and man- 
agement of insurance companies incorporated under the laws 
of this Commonwealth in the many recognized branches of 
insurance. There is a provision for the admission and licensing 
of foreign companies, and they are required to "make con- 
tracts of insurance upon lives, property or interests therein, 
only by lawfully constituted and licensed resident agents." 
There are many provisions in which the prohibition and pen- 
alty for committing a prohibited act are specifically applied to 
both the companies and their officers and agents, or persons 
purporting to act as such. For example, sections 29, 74, 114, 
118; St. 1912, c. 401; St. 1913, c. 474, § 2. 

Taking into consideration these detailed provisions, I am of 
the opinion that if the Legislature had intended that the 
company or its officers or licensed agents should be liable to 
any penalty by reason of issuing a contract in the negotiation 
of which an unlicensed person had aided, it would have specifi- 
cally so provided, and, accordingly, that neither the company 
nor its Hcensed agents issuing such a contract are liable to the 
penalty prescribed for an unHcensed person who aids in the 
negotiation of an insurance contract. 



?66 OPINIONS OF THE ATTORNEY-GENERAL. 



Public Defence — Authority of Governor to incur Ex- 
pense IN combating Influenza Epidemic. 

The power of the Governor to incur emergency expenses incident to the war, under 
Gen. St. 1918, c. 278, authorizes incurring expenses to combat the influenza 
epidemic. 

Governor. You liavc requested my opinion a.s to whether Gen. St. 1918, 

Octobers. c. 278, entitled "An Act authorizing the governor to incur 
emergency expenses incident to the existing state of war," au- 
thorizes the incurring of expenses for the purpose of combating 
the epidemic of influenza now prevailing in the Commonwealth. 
Section 1 of this statute provides : — 

Expenditures are hereby authorized not exceeding one million dollars, 
to be incurred under the direction of the governor, subject to the approval 
of the council, to meet any emergency which may arise during the recess 
of the general court by reason of the exigencies of the existing state of 
war. . . . 

In my opinion, this statute is not to be interpreted as merely 
authorizing expenditures to meet an emergency directly caused 
by the war. As its title declares, it authorizes "emergency 
expenses incident to the existing state of war." In my judg- 
ment, it must be interpreted as authorizing expenditures to 
meet conditions which, because of the exigencies of the existing 
state of war, may be said to constitute an emergency. I am 
of opinion that the prevailing epidemic clearly is such an 
emergency. The presence of a large military cantonment 
within the Commonwealth, the fact that many citizens of the 
Commonwealth will soon be summoned to mihtary service 
under the latest draft, and, in general, the disastrous effect 
which this epidemic, if not checked, will have in limiting the 
ability of the people of the Commonwealth to aid in the 
successful prosecution of the war, all make it plain that this 
epidemic, viewed in the light of existing war conditions, is 
a real war emergency. In my opinion, the suggested expend- 
itures are authorized bv the statute. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 267 



Civil Service Commission — Power to revoke Certifica- 
tion OBTAINED BY FrAUD OR MISREPRESENTATION. 

The Civil Service Commission has the power to revoke its certification of a person 
as eligible to appointment to a position in the classified civil service, even 
after such person has been appointed to the position, if such certification was 
obtained from the Commission through fraud or misrepresentation. 

It appears from Information furnished to this Department TotheChii 

_ „ . . , ^ ^ -.^-.n 1- Service Com- 

by your Commission that on bept. 7, 1916, an apphcant was ^^^^If^- 
given an examination for an appointment to the position of O ctober 7. 
engineer at the Beverly pumping station, which is a second- 
class plant, and classified under clause 26 of rule 6 of the civil 
service rules then in effect. In consequence of this examina- 
tion the applicant was certified by your Commission to the 
commissioner of public works of Beverly as a person eligible to 
be appointed to that position, which appointment was subse- 
quently made. The commissioner of public works of Beverly 
having now requested that the certification of this employee as 
an ehgible person to be appointed to this position be revoked, 
on the ground that it was obtained by the employee through 
fraud or misrepresentation, you have requested my opinion 
upon the question of whether your Commission has the power 
to revoke such a certification after an appointment has been 
made. 

The laws relating to the civil service and the rules and regu- 
lations made thereunder provide in efl^ect that no appoint- 
ments shall be made to positions classified under said rules 
except from a list of persons who shall be certified by the 
Civil Service Commission as ehgible to fill such positions. 
After a valid appointment has once been made, the appointee 
cannot be removed from his position except for just cause. 

It is true that, as a general rule, after an appointment has 
once been made from a certified ehgible list your Commission 
has no jurisdiction over the tenure of the appointee, but it 
seems quite plain to me that if your Commission has, through 
mistake or fraud, erroneously placed a person on an ehgible 
list from which he is subsequently appointed, you may, upon 



2G8 OPINIONS OF THE ATTORNEY-GENERAL. 

discovery of the error or fraud, revoke your action in placing 
his name upon such list. Suppose, for example, that your 
Commission, intending to certify as eligible a particular per- 
son, should make a mistake in writing the name, so that it 
appeared as the name of another person, and that the latter 
person was appointed to the position — it is impossible to 
suppose that your Commission has lost its power to revoke 
its certification. If so, the person wrongfully appointed would 
be secure in his position. Or suppose that one should fraudu- 
lently take an examination in the name of another, and that 
that other should subsequently be appointed in consequence 
of having been certified by the Commission as an eligible per- 
son on the basis of such examination; or suppose that an 
applicant should, through fraud or misrepresentation practiced 
upon the Commission, secure his certification as an eligible 
person — the appointing officer could hardly contend that the 
fraud practiced upon the Commission, or the error or mistake 
on its part, constituted just cause, within the meaning of the 
statute protecting the tenure of office in a civil service position, 
for the reason that it is difficult to see how he would have the 
power to determine whether the Civil Service Commission had 
been deceived or had made a mistake. It seems to me that 
such a matter is within the sole jurisdiction of the Civil Serv- 
ice Commission, and that if it should determine, even after 
an appointment had been made, that its action in relation 
thereto had been taken through error or mistake, it has the 
power to revoke or rescind such action. 

In my opinion, the revocation by your Commission of its 
action in certifying a person as eligible to a position classified 
under the civil service rules would place him in the same 
position as if he had never been certified, and hence would 
render his continued employment in that position illegal. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 269 



Credit Unions — Who can be Members — Loans. 

A credit union must confine its membership to individuals, and cannot include 
corporations or associations, and must limit its loans to its own members. 

You request my opinion as to whether a credit union can to the Bank 

, . . ... Commissioner. 

make a loan either to a corporation or an association, and 1918 

. . 1 p October 7. 

whether a corporation or an association can be a member or a 

credit union; also, whether a credit union can loan to persons, 
corporations or associations located outside the Commonwealth. 
Gen. St. 1915, c. 268 §§ 2, 5, 6, 11 and 24, provide: — 

Section 2. Seven or more persons, resident in this commonwealth' 
who have associated themselves by an agreement in writing with the 
intention of forming a corporation for the purpose of accumulating and 
investing the savings of its members and making loans to members for 
provident purposes, may, with the consent of the board of bank incorpo- 
ration, become a corporation. . . . 

i ' ■ ' 

Section 5. A credit union may receive the savings of its members in 
payment for shares or on deposit; may lend to its members at reasonable 
rates, or invest, as hereinafter provided, the funds so accumulated. . . . 

Section 6. The by-laws shall prescribe the name of the corporation, 
the purposes for which it is formed, the conditions of residence or occu- 
pation which qualify persons for membership, . . . the fines, if any, which 
shall be charged for failure to meet obligations to the corporation punc- 
tually. ... 

Section 11. The capital, deposits and surplus funds of a credit union 
shall be invested in loans to members with the approval of the credit 
committee as provided in section seventeen of this act, and any capital, 
deposits or surplus funds in excess of the amount for which loans shall be 
approved by the credit committee ... in any securities which are at the 
time of their purchase legal investments for savings banks in this com- 
monwealth. . . . 



Section 24. The board of directors may expel from a credit union 
any member who has not carried out his engagements with the credit 
union, or who has been convicted of a criminal offence, or who neglects 
or refuses to comply with the provisions of this act or of the by-laws, or 
whose private life is a source of scandal, or who habituallj^ neglects to pay 



270 OPINIONS OF THE ATTORNEY-GENERAL. 

his debts, or who shall become insolvent or bankrupt, or who shall have 
deceived the corporation or any committee thereof with regard to the use 
of borrowed money; but no member shall so be expelled until he has been 
informed in writing of the charges against him, and an opportunity has 
been given to him, after reasonable notice, to be heard thereon. . . . 

From a general observation of this statute it clearly appears 
to have been framed with the main purpose of promoting 
thrift among members of a credit union, and of assisting mem- 
bers for provident purposes. In my opinion, it was the inten- 
tion of the Legislature that membership in credit unions should 
be limited to individuals, and should not include corporations 
or associations. The fact that the word "resident" is used in 
section 2 and "residence" in section 6 would imply that in- 
dividuals w^ere meant and not corporations. The word "resi- 
dent" occurring in a statute ordinarily means an individual or 
a citizen, and does not mean a corporation. People v. Schoon- 
maker, 63 Barbour's, 44, 51; Farmers Loan & Trust Co. v. 
Chicago, 27 Fed. Rep. 50. Then, again, the phraseology of 
section 24 would imply that it was the intention that the mem- 
bership be made up of individuals and not of corporations or 
associations. 

Your second question is as to whether a credit union can 
make a loan to a corporation or association. In an opinion 
rendered to you on April 3, 1917, I expressed the view that 
credit unions were restricted in making loans to the members 
thereof. It follows that, as it is my opinion that a corpora- 
tion or association cannot be a member of a credit union, 
loans by credit unions to corporations and associations are 
unauthorized. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 271 



County Officers and Employees — Increase in Compensa- 
tion — Salaries of Clerks and Justices increased 
DURING Year — Court Stenographers. 

Where the justice and clerk of a local court were given additional salary by Gen. 

St. 1918, c. 173, readjusting their salaries to correspond with an enlargement 

of their district, they are not entitled to the 10 per cent temporary increase 

provided by Gen. St. 1918, c. 260. 
A court stenographer whose salary is ®2,500 is entitled to this temporary increase, 

although there is a possibility of additional compensation from extra work 

done as such stenographer in behalf of the county. 

You have requested my opinion as to whether the justices, xothe 
clerks and assistant clerks of the district courts whose salaries of county 

^ , , _, ^ . , , , Accounts. 

were affected bv Gen. St. 1918, c. 173, are entitled to the tern- ^ isis 

_ ' October 7. 

porary increase in salary authorized by Gen. St. 1918, c. 260. 

By its terms the latter statute applies only to persons "whose 
salaries have not been increased by act of the general court 
passed during the current year," and the sole question is as to 
whether Gen. St. 1918, c. 173, is to be regarded as having 
granted such an increase in salary within this provision. 

By Gen. St. 1917, c. 302, the territorial jurisdiction of various 
district and police courts was enlarged by annexing thereto one 
or more towns. This statute took effect on Oct. 1, 1917, but 
contained no provision relating to the salaries of the justices or 
clerks of those courts. The various police, district and mu- 
nicipal courts of the Commonwealth had been classified, and 
the salaries of their justices and clerks established on the basis 
of population, by St. 1904, c. 453, and this statute, with its 
various amendments, is still in force. 

St. 1910, c. 501, provided that these salaries shall be read- 
justed on the first day of July in the year in which a national 
or State census is taken, so that thereafter the salaries shall be 
based upon the population of the district as shown by the 
latest enumeration. 

As the statute of 1917, increasing the territorial jurisdiction 
of the courts in question, contained no provision increasing 
the salaries of the justices and clerks to correspond to the 
added population, it is plain that without further legislation 



OPINIONS OF THE ATTORNEY-GENERAL. 

they were not entitled to an increase in salary based on such 
added population until a readjustment should take place, in 
accordance with the statute of 1910, on the first day of July 
of the year in which the next national or State census is taken. 
This being the situation, the General Court this year enacted 
Gen. St. 1918, c. 173, § 1 of which is as follows: — 

The salaries of the justices, clerks and assistant clerks of the district,. 
police and municipal courts whose judicial districts were enlarged by the 
provisions of chapter three hundred and two of the General Acts of nine- 
teen hundred and seventeen, and the classes into which said courts are 
distributed under the provisions of chapter four hundred and fifty-three 
of the acts of nineteen hundred and four and the amendments thereof,, 
shall be readjusted, by the officer paying said salaries, so as to correspond 
with the classes and salaries prescribed by said chapter four hundred and 
fifty-three and the amendments thereof. The readjustment shall be 
made as of October first, nineteen hundred and seventeen, and all increases, 
of salary hereunder shall take effect as of that date. 

In view of the statutes relating to salaries in the courts in 
question at the date of the enactment of this statute, it is my 
opinion that it can be regarded as having no other effect than 
granting an increase in salary to the justices, clerks and assist- 
ant clerks specified, and providing for the payment of the in- 
crease from Oct. 1, 1917. In my judgment, this is an increase 
in salary granted by act of the General Court passed during 
the year 1918, and, accordingly, these justices and clerks da 
not come within the provisions of chapter 260 of the acts of 
this year. 

You also ask my opinion as to whether court stenographers 
who receive an annual salary of $2,500 are entitled to the 
benefits of Gen. St. 1918, c. 260. 

This question arises from the fact that these stenographers 
are required by R. L., c. 165, § 85, at the request of the pre- 
siding justice, to provide him with a transcript of such portion 
of their notes as he may require, payment for such transcript 
to be made by the county. The result is that in cases where 
a stenographer is requested to perform any such additional 
work by the presiding justice he receives compensation from 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 273 

the county in excess of $2,500. The habits of the various 
presiding justices with regard to making such requests vary 
greatly, and it is impossible to determine in advance whether 
any particular stenographer during any year will receive com- 
pensation for such work, and, if so, to what extent. 

Gen. St. 1918, c. 260, applies only to persons "whose annual 
compensation in full for all services rendered does not exceed 
twenty-five hundred dollars." The temporary increase in salary 
granted is "equal to ten per cent of the salaries received by 
them on the first day of July in the year nineteen hundred 
and seventeen." This appears to make the basis of the in- 
crease the rate of regular compensation received on that date. 
It does not permit the consideration of occasional extra compen- 
sation paid for additional work performed out of regular hours. 

Regular salaries paid these stenographers appear to be 
compensation for the services rendered by them in taking notes 
and performing other incidental services during the sessions of 
the court. The furnishing of transcripts of evidence to pre- 
siding justices of necessity requires work out of regular court 
hours and frequently beyond regular business hours. Though 
it is not entirely free from doubt, it seems to me, on the whole, 
that it must be regarded as work performed in addition to the 
regular duties of the ofiice. Because of the uncertainty of its 
extent, it is paid for in the manner above indicated. I am 
inclined to the opinion, therefore, that amounts received on ac- 
count of such additional work are not to be considered in de- 
termining the annual compensation of such stenographers for 
the purpose of the application of Gen. St. 1918, c. 260. 

Accordingly, in my judgment, stenographers who merely 
receive additional compensation for furnishing transcripts of 
their notes to presiding justices are not debarred thereby from 
the temporary increase authorized by Gen. St. 1918, c. 260. 



274 OPINIONS OF THE ATTORNEY-GENERAL. 



State Employees — Military Service — Extra Compensa- 
tion — Permanent or Temporary Employment. 

Gen. St. 1917, c. 301, providing certain compensation for employees of the Com- 
monwealth in the military service of the United States, applies to all persons 
engaged in the regular, permanent service of the Commonwealth, regardless 
of the date of their original employment, but does not apply to persons ren- 
dering only temporary, limited, or casual services to the Commonwealth. 

The provisions of Gen. St. 1917, c. 301, practically provide a leave of absence, with 
pay, for persons indefinitely employed in the regular, permanent service of 
the Commonwealth. 



To the 
Auditor 



You have requested my opinion as to whether payments 
October 17. Under Gen. St. 1917, c. 301, can be made, first, to persons who 
entered the service of the Commonwealth after that statute 
was enacted and subsequently were mustered into the military 
service of the United States; and second, to persons who were 
mustered into that service while only temporarily in the employ 
of the Commonwealth for a brief period of time. 

Section 1 of the statute in question is as follows: — 

There shall be allowed and paid, out of the treasury of the common- 
wealth, to eyerj employee of the commonwealth who has been or is here- 
after mustered into the military or naval service of the Unites States 
during the present war, an amount equal to the difference between the 
compensation received by him from the United States, plus the com- 
pensation received as extra military pay, received from the common- 
wealth, and the amoimt which he was receiving from the commonwealth 
at the time when he was mustered in. The said pajanents shall continue 
so long as he continues in the military or naval service of the United 
States, but shall cease one month after the termination of the war. In 
case of his death in the said service his widow, minor children, parents or 
dependents shall receive the said sum until the termination of the war. 

This section is broad in its application "to every employee 
of the commonwealth who has been or is hereafter mustered 
into the military or naval service of the United States during 
the present war." It applies to persons who have been so 
mustered in before the enactment of the statute, and I find in 
it no hmitation restricting its application to persons subse- 
quently entering the regular service of the Commonwealth and 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 275 

thereafter mustered into the military service. In the absence 
of any such hmitation, it seems to me that it must be held to 
apply to all persons mustered into the military or naval service 
of the United States, who, at the time of such "mustering in," 
were employees of the Commonwealth, as hereinafter defined. 

Your second question is a much more difficult one to deter- 
mine. As already stated, the language of this statute is very 
broad, and in terms applies "to every employee of the com- 
monwealth." By the latter part of the section, however, it 
is provided that "said payments shall continue so long as he 
continues in the military or naval service of the United States, 
but shall cease one month after the termination of the war. 
In case of his death in the said service his T\idow, minor chil- 
dren, parents or dependents shall receive the said sum until 
the termination of the war." 

It is difficult to assume that the General Court intended 
that such payments should be made to or on account of a 
person in the service of the Commonwealth who had entered 
that service for a brief temporary period of time, or for a few 
weeks or months, or to perform a temporary Hmited service 
which could take but a short time. 

In dealing with this statute on other occasions I have 
suggested that in many respects it was to be regarded as 
granting a leave of absence with pay. In an opinion rendered 
the Board of Retirement on July 13, 1917, I stated: — 

It seems to me that, at least for the purposes of the administration of 
the retirement sj^stem, Gen. St. 1917, c. 301, should be interpreted as 
granting a leave of absence, with pay, during the continuance of the war 
and for thirty days thereafter, to all employees mustered into the military 
or naval service of the United States during the present war. The 
employee is required to credit against his salary merely such compensa- 
tion as he receives on account of his military services. 

Again, on Oct. 16, 1917, in an opinion rendered the Super- 
visor of Administration with reference to the status of persons 
in the classified public service who have been drafted into the 
military service of the United States, referring to the statute 
now under consideration I said : — 



276 OPINIONS OF THE ATTORNEY-GENERAL. 

It would seem that it was in the mind of the Legislature that these men 
were to be considered as temporarily absent from the service of the Com- 
monwealth as on a leave of absence, and that their positions in the classi- 
fied civil service were not to be affected by their absence until the cause 
of such absence had been removed. 

Thus regarding the statute, it seems to me entirely incon- 
sistent with its general purport that a person temporarily 
employed by the Commonwealth for a few months should, in 
the event that he is mustered into the military service during 
the period of his employment, receive the equivalent of his 
pay from the Commonwealth, after deducting his military pay, 
long after the period that he would have remained in the 
employ of the Commonw^ealth if he had not been mustered into 
the military service. In the absence of a clear provision re- 
quiring such a result, I am of the opinion that the statute is 
not to be given that construction. Looking at this statute as 
a whole, it seems to me that the persons whom the General 
Court intended to benefit were those employees of the Com- 
monwealth who were in its permanent and regular service, 
and wdio would, in the ordinary course of events, have indefi- 
nitely continued in that employment if they had not been 
mustered into the service of the United States. To such per- 
sons the General Court granted a leave of absence, with pay, 
until one month after the termination of the war. 

Accordingly, in my judgment, the benefits of this statute 
are to be restricted to such persons as were in the regular and 
permanent employment of the Commonw^ealth at the time of 
their mustering into the United States service, and no pay- 
ments are thereby authorized to persons who at the time of 
such mustering in were in the employment of the Common- 
wealth only for a brief definite period of time, or for the 
purpose of performing a service which was not a part of the 
regular activities of the Commonwealth, or required but a brief 
time for its performance. 



HENKY C. ATTWILL, ATTORNEY-GENERAL. 277 



Health Inspectors — Slaughtering at County Training 
Schools. 

A county training school may lawfully slaughter animals belonging to it without 
inspection by a health inspector, and may serve the meat of such animals to 
the inmates of the school. 

You request my opinion on the following questions : — tq the 

Commissioner 

1. Is it lawful or proper for slaughtering to be done at a county training °^ ^ilif^' 
school without inspection by an inspector? Oc tober 17. 

2. Is it lawful to have the meat of such carcass served to the inmates 
of said institution? 

The particular section of the statute which is involved in 
your request appears to be R. L., c. 75, § 105, as amended by 
Gen. St. 1916, c. 139, which reads as follows: — 

The provisions of the six preceding sections shall not apply to a person 
not engaged in such business, who, upon his own premises and not in a 
slaughter house, slaughters his own neat cattle, sheep or swine, but the 
carcass of any such animals, intended for sale, shall be inspected, and, 
unless condemned, shall be stamped or branded according to the pro- 
visions of section one hundred and three of chapter seventy-five of the 
Revised Laws, as set forth in chapter two hundred and twenty of the acts 
of the year nineteen hundred and three, and as amended by chapter four 
hundred and seventy-one of the acts of the year nineteen hundred and 
nine and by section five of chapter two hundred and ninety-seven of the 
acts of the year nineteen hundred and eleven, by an inspector at the time 
of slaughter. 

The six preceding sections referred to relate to certain re- 
quirements regarding the slaughtering of cattle and the in- 
spection of the same at slaughterhouses. 

The first inquiry raises the question as to whether or not a 
county is a "person," within the meaning of said chapter 139. 
R. L., c. 20, § 1, provides as follows: — 

Each county shall continue a body pohtic and corporate for the follow- 
ing purposes: to sue and be sued, to purchase and hold, for the use of the 
county, personal estate and land lying within its limits, and to make 
necessary contracts and do necessary acts relative to its property and 
affairs. 



278 OPINIONS OF THE ATTORNEY-GENERAL. 

R. L., c. 9, § 16, provides that the word "person" maybe 
extended and applied to bodies politic or corporate. It has 
been held to apply to counties. 30 Cyc, p. 1527. A county 
training school is operated by, and is a part of, the county. 
Consequently, it is my opinion that a county is a "person," 
within the meaning of the statute. 

Nor do I think the application of said chapter 139 is restricted 
to slaughtering by the owner of the premises himself. In my 
judgment, such owner may do such slaughtering by or with 
the assistance of others. • 

Assuming, therefore, that the slaughtering of neat cattle, 
sheep or swine belonging to the county is done by the county 
training school on the premises of the county training school, 
and that the meat is not intended for sale, I am of the opinion 
that your first question is to be answered in the affirmative. 

It is manifest that such meat, when served to the inmates 
of the institution, is not "being offered for sale," within the 
meaning of the statute, and, accordingly, your second inquiry 
is to be answered in the affirmative. 



Public Officers — Trustees of the New Bedford Textile 
School — Corporation. 

The trustees of the New Bedford Textile School, appointed under Gen. St. 1918, 
c. 246, have the same duties and obligations as those previously exercised by 
the original corporation, but are a board of public officers and not a legal cor- 
poration. 

^es^ofthe'^''' ^^^ request my opinion as to whether the trustees of the 

xl^rtik^sfhooi. New Bedford Textile School, appointed under the provisions of 
October 21. Gen. St. 1918, c. 246, are to be regarded as constituting a cor- 
poration. 

The New Bedford Textile School was established under the 
provisions of St. 1895, c. 475, now appearing as R. L., c. 125, 
§§ 20 to 22, inclusive. A corporation known as the "trustees 
of the New Bedford Textile School" was formed under the 
provisions of that statute, and this corporation continued to 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 279 

operate and manage the school until the 1st of July last. On 
or about that date, in accordance with the provisions of Gen. 
St. 1918, c. 246, this corporation transferred all its property 
to the Commonwealth, and thereupon a board of seventeen 
trustees was constituted and appointed in accordance with the 
provisions of section 2 of that act. This section provided: 

Upon their qualification, said trustees shall be vested with all the 
powers, rights and privileges and shall be subject to all the duties, of the 
existing trustees of the New Bedford Textile School, except that the title 
to all the property of said school shall be vested in the commonwealth. 

Accordingly, since the transfer of its property to the Common- 
wealth this school has been, and hereafter will be, operated and 
managed by a board of seventeen trustees thus appointed. 
The corporation which originally established the school under 
the earlier statute will have no further functions to perform 
with relation to the school, and very likely may be said no 
longer to exist. 

In my opinion, it was the intention of the General Court 
that this new board of trustees should be merely a board of 
public officers to manage the school in and upon property 
owned by the Commonwealth. In my judgment, in vesting 
them "with all the powers, rights and privileges" and subject- 
ing them to "all the duties" of the old board of trustees, it 
was intended merely to give them the same powers and to 
impose upon them the same obligations with reference to the 
maintenance and management of the school as had heretofore 
been granted to and imposed upon the original corporation. 
In the absence of an express provision declaring that this new 
board of trustees shall constitute the corporation, it does not 
seem to me to be consistent with the policy of the General 
Court, as declared in this statute and in similar statutes re- 
lating to other textile schools enacted this year, and also 
expressed in Gen. St. 1918, c. 262, dissolving the corporation 
of the Massachusetts Agricultural College, to construe the act 
under which your Board is estabHshed as constituting it a 
corporation. 



280 OPINIONS OF THE ATTORNEY-GENERAL. 



Workmen's Compensation Act — "Laborers, Workmen and 
Mechanics." 

Civil engineers employed by the Commonwealth are not "laborers, workmen and 
mechanics" within the meaning of St. 1913, c. 807, providing for the payment 
of compensation to certain employees of the Commonwealth. 

To the I have vour letter in which you state that in several instances 

Highway " "^ 

^'''i^^'°°' engineers, while in the discharge of their duties or assisting 
Oc tober 23. laborcrs at work on State highways, have been injured and have 
filed claims for compensation under the Workmen's Compensa- 
tion Act, and you request my opinion upon the question of 
whether the provisions of the Workmen's Compensation Act 
apply to engineers in the employ of your Commission. I as- 
sume that by the word "engineers" you mean civil engineers, 
and not those who work around an engine or boiler. 

St. 1913, c. 807, as amended, extends the provisions of the 
Workmen's Compensation Act to no persons in public employ- 
ment other than "laborers, workmen and mechanics." 

The above-quoted phrase has been interpreted by our Supreme 
Judicial Court in Devney's Case, 223 Mass. 270, as not includ- 
ing a hoseman in the fire department of the city of Boston; in 
White's Case, 226 Mass. 517, as including a janitor who did 
manual labor, but not one who acted only as a superintendent 
over others; and in Lesuer's Case, 227 Mass. 44, as not includ- 
ing an instructor in a vocational school, although he occasionally 
gave practical demonstrations involving manual labor. 
In the last case the court said : — 

The word "mechanic" as used in the statute connotes a manual occu- 
pation, — a performance of mechanical labor, or work at one of many 
constructive trades, as a principal means of livelihood. 

In Devney's Cose, supra, the court defined these words as 
follows : — 

A "laborer" ordinarily is a person without particular training who is 
employed at manual labor under a contract terminable at will, while 
"workmen" and "mechanics" broadly embrace those who are skilled 
users of tools. . . . And the framers of the statute undoubtedly intended 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 281 

that the words "laborers, workmen and mechanics" should be taken in 
their ordinary lexical sense. 

While it is difficult to lay down any hard and fast rule for 
determining whether any particular employment falls within 
or outside of this class, as each case depends largely upon its 
own facts, it seems to me reasonably clear that civil engineers 
employed by your Commission are not entitled to the benefits 
of the Workmen's Compensation Act on account of injuries 
sustained by them arising out of and in the course of their 
employment, and I beg to advise you accordingly. It is per- 
haps needless to add that this is a question which the injured 
employee is entitled to have adjudicated by the Industrial 
Accident Board, subject to appeal to the Supreme Judicial 
Court. 



Savings Banks — Bonds of Railroads taken over by the 
United States Government — Legal Investments. 

Under St. 1908, c. 590, § 68, with certain exceptions, the bonds of railroad corpora- 
tions which have been taken over by the United States government are not 
legal investments for savings banks. 

You ask my opinion on the following questions: — To the Bank 

Commissioner. 

1. Wliether the bonds of railroad corporations that were legal invest- October 23. 
ments for savings banks at the time the government took over the roads ~ 
would still be legal investments if they are operated by the government, 

as at present. 

2. Whether the "gross earnings" are to be determined by their returns, 
as formerly, or by the rentals from the United States Railroad Adminis- 
tration, 

You refer to the provisions of St. 1908, c. 590, § 68, which 
govern the investment by savings banks in bonds and notes of 
railroads. I am of opinion that the provisions of this section, 
with the exception of subdivisions 6, c and d of clause 3, con- 
template that the railroad property shall be operated by the 
railroad corporation owning such property. Said subdivisions, 
h, c and d authorize the investment in certain New England 



282 OPINIONS OF THE ATTORNEY-GENERAL. 

railroads which may be leased to another railroad corpora- 
tion. 

The act of Congress approved March 21, 1918, relative to 
the Federal control of railroads, recites, in the first paragraph 
thereof — 

That the President, having in time of war taken over the possession, 
use, control, and operation (called herein Federal control) of certain rail- 
roads and systems of transportation (called herein carriers), is hereby 
authorized to agree with and to guarantee to any such carrier making 
operating returns to the Interstate Commerce Commission, that during 
the period of such Federal control it shall receive as just compensation, . . . 

I think it plain that at the present time the United States 
government is operating the railroads that have been taken 
over by the President; and it is my opinion, accordingh^ that 
your first inquiry is to be answered in the negative. 

The answer to your first inquiry makes it unnecessary for me 
to answer your second inquiry. 



Rules and Regulations issued by State Boards and Com- 
missions — General Scope. 

Rules and regulations of State boards and commissions are general in scope, within 
the meaning of Gen. St. 1917, c. 307, when they apply to all the citizens of 
the State, although they prohibit the doing of an act only in a certain locality. 

To the You have requested my opinion upon the question of whether 

Commissioners _ . 

on Fisheries certain rulcs and regulations made by your Commission are to 

and Game. " . 

Novembers, ^c Considered "general in scope," within the meaning of Gen. 
St. 1917, c. 307. Section 1 of that act is as follows: — 

Every commission, board or official vested by law with the power to 
make and issue rules and regulations general in scope, and to be observed 
or performed under penalty for the violation thereof, shall file attested 
copies thereof, together with a citation of the law by authority of which 
the same purport to have been issued with the secretary of the common- 
wealth, and such rules and regulations shall not take effect until so filed. 
Nothing herein contained shall be deemed to apply to rules and regula- 
tions issued by commissions, boards or officials of cities or to^vns, or to 
municipal ordinances or bj^-laws, or to rules and regulations affecting 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 283 

solely the internal management or discipline of a commission or board, 
nor to orders or decrees made in specific cases within the jurisdiction of a 
commission, board or official. 

Section 3 requires the Secretary of the Commonwealth to 
publish as a public document all orders, rules and regulations 
filed with him under the provisions of this act. 

The difficulty in interpreting this act lies in defining the 
phrase "general in scope." Viewed from different angles, this 
phrase might be interpreted with reference either to the area 
over which, or the time during which, the rules and regula- 
tions were effective, or as referring to the persons whose actions 
were thereby restricted. What was meant by the expression 
"general law" as contrasted w^ith "special law" was considered 
in State v. Corson, 67 N. J. L., 178, where the court said: — 

A statute is not special or local merely because it authorizes or prohibits 
the doing of a thing in a certain locality. It is, notwithstanding this fact, 
a general law if it applies to all the citizens of the State and deals with a 
matter of general concern. Doiighty v. Conover, 13 Vroom, 193. The 
application of this principle led this court, in the case cited, to the con- 
clusion that a statutory provision which made it unlawful for any person 
to net fish during certain periods of the year "in the waters of Burlington 
and Atlantic" was not special or local but general. The act before us, 
tested by this rule, is also general. 

Notwithstanding the use of the words "in scope" in con- 
nection with the word "general" in this statute, I have come 
to the conclusion that the statute is to be construed as if it read 
"general rules and regulations." I have reached this conclusion 
the more readily because it seems to me that this interpreta- 
tion serves more adequately to carry out the apparent purpose 
for which the act was passed, namely, that of giving notice to 
the public generally of acts of boards or commissions by which 
it was bound under penalty. 

Accordingly, I beg to advise that, in my opinion, a rule or 
regulation is "general in scope," within the meaning of this 
statute, when it applies to all the citizens of the State, although 
it prohibits the doing of a thing only in a certain locality. 

You have further requested my opinion on certain specific 



284 OPINIONS OF THE ATTORNEY-GENERAL. 

rules and regulations made by your Commission, which are 
stated by you as follows : — 

1. Under chapter 410, Acts of 1911, the commissioners order a close 
season on certain areas of land for a definite period of time. The public 
as a whole is prohibited from hunting and performing certain other acts 
within these areas. 

2. Under chapter 285, Acts of 1911, the Commissioners on Fisheries 
and Game, on petition, stock certain great ponds and specify the times 
and methods of taking fish in those particular ponds for a definite period 
of time. The regulations apply to the public in general, in so far as 
relates to that particular pond. 

3. Under section 5, chapter 91, Revised Laws, the Commissioners on 
Fisheries and Game, on petition, stock certain brooks and specify the times 
and methods of taking fish in those brooks for a defuiite period of time. 
The regulations apply to the public in general, in so far as relates to those 
particular brooks. 

* 4. Under chapter 401, Acts of 1914, the Board of Commissioners on 

Fisheries and Game declare an open season on pheasants between certain 
specified dates, within certain counties, requiring that hunters shall 
observe a certain bag hmit and make certain reports. 

5. Under sections 113 and 114, R. L., c. 91, the Commissioners on Fish- 
eries and Game, on the request of the State Department of Health, issue 
orders prohibiting the taking of shellfish from certain areas. These 
regulations apply to the public as a whole, in so far as relates to that 
particular area. 

These rules and regulations are "to be observed or per- 
formed under penalty for the violation thereof." 

It is my opinion that all of the above rules and regulations 
are to be construed as general in scope, within the meaning of 
Gen. St. 1917, c. 307, and that copies thereof are required by 
that statute to be filed with the Secretary of the Common- 
wealth in accordance with the provisions of the act. 

Other specific rules and regulations upon which you have also 
requested my opinion are as follows : — 

6. In numerous cases the statutes extend protection to a certain bird 
or animal. The statute applies to the public in general. The Board of 
Commissioners on Fisheries and Game, however, are authorized to issue 
permits, exempting the holders from the observance of the statute. 
While this permit may carry with it certain rules and regulations to be 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 285 

observed b^' the holder, these permits and rules apply only to the holder 
and not to the public in general. 

7. Under chapter 460, Acts of 1910, the Commissioners on Fisheries 
and Game issue orders in writmg to the owner or tenant of a sawmill, 
manufacturing or mechanical plant, dwelling house, stable or other build- 
ing, prohibiting or regulating the discharge or escape of sawdust or certain 
other materials therefrom, into the brook or stream on which it is located. 

8. Under chapter 365, Acts of 1904, the Commissioners on Fisheries and 
Game issue orders to owners of dams and fishwaj^s concerning changes, 
repairs, building of new fishways, and times when same shall be kept open. 

.9. Under chapter 529, Acts of 1910, the Board of Commissioners on 
Fisheries and Game may lease Tisbury Great Pond from time to time 
until Jan. 1, 1920. These leases contain such rules and regulations for 
the taking of fish theremader as the Commissioners deem expedient. The 
regulations, however, applj^ to the lessees only, and not to the public in 
general. 

The orders made by your Commission, as above specified 
in Nos. 7 and 8, seem to me clearly to be excluded from the 
operation of this act by the last sentence of section 1, which 
provides that "nothing herein contained shall be deemed to 
apply ... to orders or decrees made in specific cases within 
the jurisdiction of a commission, board or official." 

The rules and regulations above specified under Nos. 6 and 
9 are, in my opinion, not general in scope, within the meaning 
of this statute, and, accordingly, need not be filed with the 
Secretary of the Commonwealth in accordance with the pro- 
visions of the act. 



Local Boards of Health — Physicl'^n Member in Towns 
OF OVER 5,000 Inhabitants. 

In a town of more than 5,000 inhabitants, where the selectmen do not themselves 
act as the board of health, one member of such board must be a physician, and 
the selectmen cannot appoint a layman, under Gen. St. 1918, c. 185, if the 
board would thereby be left without a physician member. 

You have requested my opinion as to whether the selectmen To the 

"^ . Commissioner 

of a town of more than 5,000 inhabitants, acting under the pro- of Health, 
visions of Gen. St. 1918, c. 185, can appoint a layman to per- No vembe r 9. 
form the duties of the physician member of the board of health 



286 



OPINIONS OF THE ATTORNEY-GENERAL. 



of such town, who is absent in the mihtary or naval service of 
the United States. 

Said chapter 185, in my opinion, is to be read in connection 
with the statutes relating to boards of health existing at the 
time of its passage. It is not to be presumed that the Legis- 
lature intended by the passage of the act to change the exist- 
ing requirements with reference to the personnel of boards of 
health. By St. 1913, c. 835, § 405, it is provided that in towns 
having more than 5,000 inhabitants, as determined by the 
latest national or State census, unless composed of the select- 
men, one member of the board of health shall be a physician. 
Where there is only one physician upon a board of health in 
such town, and he is absent temporarily in the military service 
of the United States, and it is desired to appoint a person to 
perform his duties in his absence, under the provisions of said 
chapter 185, I am of the opinion that such appointee must be 
possessed of the qualifications of the person whose position he 
is to fill. 



To the 
Board of 
Dental 
Examiners. 

1918 
November 1 



Alien Enemy — Eligible for Certificate to practice Den- 
tistry. 

A person who has passed an examination satisfactory to the Board of Dental Exam- 
iners, and has been found to possess the requisite quahfications and to be of 
good moral character, is not debarred from obtaining a certificate to practice 
dentistry because of being an alien enemy. 

You request my opinion as to the issuance to an alien enemy 
resident in this Commonwealth of a certificate to practice den- 
tistry within the Commonwealth. 

Having passed an examination satisfactory to the Board and 
been found to possess the requisite qualifications and to be of 
good moral character, the mere fact that a person is an alien 
enemy does not prevent the issuing of a certificate to him. 
This is pointed out in the case of Hutchinson v. Brock, 11 
Mass. 118, at page 122, which states that "the citizen or sub- 
ject of a foreign country or sovereign, against whom we declare 
war, who is residing with us when war commences, and who is 



HENEY C. ATTWILL, ATTORNEY-GENERAL. 287 

permitted afterwards to reside, and be at large, under the pro- 
tection of our laws, is enabled by his residence and by virtue 
of this protection, to maintain civil actions, notwithstanding 
the war, and any supposed duty of natural allegiance." 

Therefore, on the facts stated, an alien enemy resident in 
this Commonwealth is entitled to the protection and advan- 
tages of the laws of this Commonwealth. 



Salaries of Employees of the Commonwealth — Effect 
OF Classification by Supervisor of Administration 

UPON THOSE fixed BY STATUTE. 

Gen. St. 1918, c. 228, providing for the classification by the Supervisor of Adminis- 
tration of certain offices and positions in the government of the Common- 
wealth, has no effect upon salaries established by statute. 

You have asked my opinion as to whether the provisions of lupe'^rvisor of 
Gen. St. 1918, c. 228, relative to classifications, have the effect Adminbtration. 
of repeahng the specific salary rates which have from time to "^f^LJ 
time been established by statute. 

Section 1 of said chapter provides : — 

All appointive offices and positions in the government of the common- 
wealth, except those in the judicial and legislative branches, shall be 
classified by the super\4sor of administration, subject to the approval of 
the governor and council, in services, groups and grades according to the 
duties pertaining to each office or position. 

In so far as classification is concerned, the section, in my 
judgment, appHes to all such positions. Such classification, 
however, can have no eft'ect upon salaries fixed by statute. 
Indeed, there are no provisions in the statute controlHng the 
action of the head of a department in determining the salaries 
of officials and employees not established by law except those 
contained in section 3. The classification has no effect, of 
itself, upon the salaries of officers and employees. It is specifi- 
cally provided in section 6 that the provisions of the act shall 
not effect a reduction in any salary, and there is no provision 
in the act by which the classification increases any salary. 



288 OPINIONS OF THE ATTORNEY-GENERAL. 

It would seem that the classification is for the assistance of 
the Legislature in making appropriations, and of the Governor 
and Council in determining whether to approve increases in 
salaries subject to their approval. Where a salary is specifi- 
cally fixed by statute, it cannot be increased or reduced except 
by act of the Legislature. Where it is not so fixed, it cannot 
be increased except in the manner provided by law, which is, 
ordinarily, by the head of a department, with the approval of 
the Governor and Council; and, since the passage of said chap- 
ter 228, in no event unless an appropriation sufficient to cover 
such increase has been granted by the General Court in pur- 
suance of a specific recommendation in the estimates filed as 
required by law. 

Accordingly, I am of the opinion that said chapter has no 
effect upon salaries established by statute. 



Supervisor of Administration — Disclosure of Fees by 
Sheriffs and Deputy Sheriffs. 

The Supervisor of Administration has authority, under chapter 86 of the Resolves 
of 1918, to require a disclosure of the amount of fees received by the various 
sheriffs and deputy sheriffs of the several counties. 



Supervisor of You have rcqucstcd my opinion as to whether, under the 

Administratio 

1918 
December 18. 



inisraion. pj,Q^gJQjjg ^f chapter 86 of the Resolves of 1918, your depart- 



ment is authorized to require a disclosure of the amount of fees 
received by the various sheriffs and deputy sheriffs of the sev- 
eral counties. 

The resolve in question authorizes and directs the Super- 
visor of Administration "to investigate the working conditions 
of the judicial and all other officials and employees, appointive 
or elective, of the commonwealth, except in the department of 
legislation, and the several counties thereof, other than those 
included in senate document number three hundred and seventy 
of the present year, and the duties of such officials and em- 
ployees, and their salaries, fees, allowances and other compen- 
sations." It then provides: — 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 289 

For the purposes of this resolve the supervisor shall have and may exer- 
cise in regard to all officials, employees and activities to which this resolve 
applies, the powers granted by chapter two hundred and ninety-six of the 
General Acts of nineteen hundred and sixteen, and amendments thereto, 
relating to employment in the service of the commonwealth. 

Senate Document No. 370, referred to in this resolve, was 
subsequently enacted as Gen. St. 1918, c. 228. 

The offices of sheriffs and of deputy sheriffs plainly do not 
come within the scope of this last-mentioned statute, but do, 
without doubt, come within the broad language of chapter 
86 of the Resolves of 1918. In my opinion, there can be no 
question but that, under this resolve, it is your duty to inves- 
tigate "the working conditions" and "the duties of such of- 
ficials . . . and their salaries, fees, allowances and other com- 
pensations." 

Gen. St. 1916, c. 296, referred to in this resolve, abolished 
the Commission on Economy and Efficiency and created your 
Department, giving to it "all the rights, powers, duties and 
obligations" of its predecessor, except as limited in the act. 
Section 8 provided as follows : — 

Unless authorized as provided by section six of chapter seven hundred 
and nineteen of the acts of the year nineteen hundred and twelve, the 
supervisor shall not exercise the powers conferred by section nine of said 
chapter without first obtaining the approval of the governor or of the 
committee on finance of the council, except that in making any exami- 
nation he may require the production of books, papers, contracts and 
documents relating to any matter within the scope of the investigation. 

St. 1912, c. 719, § 6, is as follows: — 

On request of either branch of the general court or of the ways and 
means committee of either branch, or of the governor, or of the committee 
on finance of the governor's council, the commission shall make a special 
examination of any matter affecting the management or finances of any 
department, institution, board, undertaking or commission mentioned in 
section three, and on request shall give any information in its possession 
to either branch of the general court or to the ways and means committee 
of either branch or to the governor. 

Section 9 granted the following powers : — 



290 OPINIONS OF THE ATTORNEY-GENERAL. 

For the purpose of this act and in order to provide information which 
shall serve as a basis for legislation, the conimission shall have the power 
to require the attendance and testimony of witnesses and the production 
of all books, papers, contracts and documents relating to any matter 
within the scope of any investigation authorized by this act. 

In my judgment, the provisions of chapter 86 of the Re- 
solves of 1918 are to be regarded as an authorization, under 
St. 1912, c. 719, § 6, of the use of the powers above stated, 
granted by section 9 of the last-mentioned statute. Accord- 
ingly, your Department is authorized to require the attendance 
and testimony of witnesses and the production of books and 
papers relating to the amount of fees received by the various 
sheriffs and deputy sheriffs, in connection with such investi- 
gations as you are making under the provisions of chapter 86 
of the Resolves of 1918. 



Highway 
Commission. 



State Employees — Liability Insurance in Connection 
WITH the Operation of Motor Vehicles — Expense. 

The cost of liability insurance carried by an employee of the Massachusetts High- 
way Commission, who is required to operate a motor vehicle in connection 
with his work, cannot properly be paid by the Commonwealth, since it is merely 
to provide indemnity to the insured against the possible results of his own 
negligence. 

Hkhwav You have requested my opinion as to whether the cost of 

liability insurance carried by certain of your employees, who, 
because of the nature of their duties, are required to operate 
motor vehicles in connection with their work, can be paid by 
the Commonwealth as a part of the expense of operating your 
Department. 

In my opinion, such items cannot properly be paid by the 
Commonwealth. The purpose of liability insurance in cases 
of this character is merely to provide indemnity to the insured 
for damages and expenses which he may be required to pay as 
the result of his own acts. If he is required to pay damages, 
it is because he has been found to be negligent. It seems to 
me that such insurance must be regarded as a personal protec- 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 291 

tionjof the employee, taken out solely for his interest, and 
thus, that it cannot properly be charged against the Common- 
wealth. It differs only slightly from a policy of personal acci- 
dent insurance which an employee might feel it desirable to 
carry because of the hazardous nature of his occupation. It 
may also be compared to a policy of fire insurance upon the 
home or property of an employee, which costs him more be- 
cause of the fact that his duties require him to live in a neigh- 
borhood of extra hazard. 

In any case where the duties of an employee subject him 
to a substantial risk of losses of the character covered by 
liability insurance, it is, of course, well within the power of 
your Commission to take that matter into consideration in 
determining the compensation of the employee. In my opinion, 
the matter under consideration should be dealt with in this 
manner, and not by the allowance of liability insurance pre- 
miums as an expense of your Department. 



Public Service Commission — Jurisdiction over a Street 
Railway Company in the Hands of a Receiver ap- 
pointed BY A Federal Court — Discontinuance of 
Service. 

The receiver of a street railway company appointed by a Federal court has no 
greater rights with reference to the discontinuance of service upon the lines 
of such company than the company itself would have in operating its own 
property, and although he may discontinue service in certain cases, he can do 
so only subject to the investigation and control of the Public Service Com- 
mission. 

In case of such investigation by the Public Service Commission, the court appoint- 
ing the receiver would undoubtedly direct him to present his side of the case, 
and if not satisfied with the order of the Commission, to appeal to the Supreme 
Judicial Court, under St. 1913, c. 784, § 27. 



the 



You have asked my opinion with reference to certain ques- to i 
tions of law relative to the powers and duties of your Com- commission. 
mission, suggested by the petition of the receiver of the Bay December 26. 
State Street Railway Company, appointed by the United States 
District Court, asking that court for instructions as to a pro- 



OPINIONS OF THE ATTORNEY-GENERAL. 

posal that he shall discontinue service upon certain lines of 
that company. 

Your first question is as follows: — 

In what respect, if any, does the right of a street railway company, 
organized and operated in this Commonwealth but in the hands of a 
receiver appointed by a Federal court, to discontinue service on all or a 
portion of its lines differ from the right of a similar company which is not 
in a receiver's hands? 

In my opinion, a receiver of the property of such a street 
railway company, appointed by a Federal court, who is oper- 
ating those properties by virtue of a decree of the court ap- 
pointing him, has no greater rights with reference to the dis- 
continuance of service upon the lines of such company than 
the company itself would have in operating its own property. 

The Supreme Court of the United States has declared "that 
it is the duty of a receiver, appointed by a Federal court to 
take charge of a railroad, to operate such road according to 
the laws of the State in which it is situated." Erb v. Morasch, 
177 U. S. 584, 585. "For in so far as he transports passengers 
and property he is a common carrier with rights and civil 
responsibilities as such." United States v. Nixon, 235 U. S. 
231, 234. 

As the last-cited case points out, he may be even subject to 
penal provisions of statutes directed against common carriers. 
When this liability, whether civil or criminal, is a statutory 
one, the question may arise whether the language of the stat- 
ute is broad enough to impose its liability upon receivers. 
Wall v. Piatt, 169 Mass. 398; United States v. Harris, 177 
U. S. 305; United States v. Nixon, supra. But, as these de- 
cisions indicate, this is merely a question of statutory construc- 
tion. If the statute indicates a clear intention to impose a 
liability upon a receiver of a railroad, he cannot escape its 
burden. 

The right of street railways in this Commonwealth to dis- 
continue the use of their tracks was fully considered and 
discussed by the Supreme Judicial Court in Selectmen of Ames- 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 293 

bury V. Citizens Electric Street Railway Co., 199 Mass. 394. 
It was there held that, subject to the provisions of its charter 
or other specific statutes, a street railway might at any time 
voluntarily discontinue, in whole or in part, the use of its 
tracks. Reference was made to St. 1891, c. 216, now codified 
as St. 1906, c. 463, Pt. Ill, § 97, which is as follows: — 

If, in the opinion of the board of railroad commissioners, additional 
accommodations for the travelling public are required upon any street 
railway, it may, after due notice to the company and a hearing, make an 
order requiring such additional accommodations as it determines are just, 
and may alter, renew or revoke the order. A street railway company 
which, for more than one week after receiving notice in writing of such 
order, neglects to comply therewith, shall forfeit to the use of the city or 
town for which such additional accommodations are ordered, or if they are 
ordered for more than one city or town, to the use equally of such cities or 
towns, one hundred dollars for each day thereafter during which such 
neglect continues. 

The court declared : — 

After the enactment of this statute and under the provisions of Pub. 
Sts. c. 112, §§ 14, 17, either the municipal officers or twenty or more legal 
voters of a city or town within which part of any street railway was located 
could, if the public accommodation so required, obtain an order from the 
Board that the railway company should furnish such additional accommo- 
dations as were needed upon its railway, including of course any part 
thereof of which the company had chosen to discontinue the operation; 
for we cannot doubt that, so long at least as the tracks remained in the 
street, they were stiU a part of the company's street railway. One effect 
accordingly of this statute was to make the company's discontinuance of 
the use of any portion of its tracks subject to the investigation and control 
of the Board of Railroad Commissioners in the manner provided for; but 
otherwise the power of the company remained unaffected. 

As the statute quoted is directed against street railway 
companies only, and as the only provision for its enforcement 
is the imposition of a penalty upon a street railway company 
which neglects to comply with such an order, it may be argued 
with considerable force that this section is not to be construed 
as applicable to receivers of the property of street railway 
companies operating the same under decrees of court. If this 



294 OPINIONS OF THE ATTORNEY-GENERAL. 

were the only provision of law applicable to the situation, I 
should hesitate to say that such a receiver could not discontinue 
the use of any tracks without interference from your Commis- 
sion, provided no charter or other specific statutory provision 
stood in the way. But the language of the Public Service 
Commission act (St. 1913, c. 724) is much broader. Section 23 
pro\ddes : — 

Whenever the commission sliall be of opinion, after a hearing had upon 
its own motion or upon complaint, that the regulations, practices, equip- 
ment, appliances or service of any common carrier, now or hereafter 
subject to its jurisdiction, are unjust, unreasonable, unsafe, improper or 
inadequate, the commission shall determine the just, reasonable, safe, 
adequate and proper regulations and practices, thereafter to be in force 
and to be observed, and the equipment, appHances and service thereafter 
to be used and shall fix and prescribe the same by order to be served upon 
every common carrier to be bound thereby. 

In my opinion, this statute, being applicable to "any com- 
mon carrier," must be construed as authorizing your Com- 
mission to make an order upon any subject-matter coming 
within its scope, directed to the receiver of the property of 
any street railway company who is operating the same within 
the Commonwealth as a common carrier. In my judgment, 
the discontinuance of service upon any existing line of tracks 
by any such common carrier, whether proposed or accom- 
plished, is a subject placed within the jurisdiction of your 
Commission by this section. 

It follows, in my opinion, that the receiver of the Bay State 
Street Railway Company has the right to discontinue service 
upon any lines of that company, pro\dded he can do so with- 
out violating any specific charter or other statutory require- 
ments or any previous orders of your Commission or its prede- 
cessors. He has taken the property subject to all existing 
obligations and duties imposed upon it by law, and he may 
operate it only subject thereto. However, if he does so dis- 
continue service, he must do so subject to the investigation 
and control of your Commission, under the authority given it 
by the section last quoted. In this respect he is subject to 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 295 

the same obligations and limitations as any street railway 
company operating its own property. 
Your second question is as follows: — 

If the discontinuance of service on all or a portion of its Hnes by a street 
railway company, organized and operated in this Commonwealth, but 
in the hands of a receiver appointed by a Federal court, is ordered or 
approved by said court, in what respect, if any, is the authority of this 
Commission over said service affected? 

So far as this question relates to the authority of your 
Commission to enter orders requiring the receiver to re-estab- 
lish, in whole or in part, upon existing lines or tracks service 
discontinued by him, it is fully considered by me in dealing 
with your first question. So far as this question relates to 
the manner in which any such order would be enforced by or 
in behalf of your Commission, it need not be fully considered 
until such question arises. 

It is proper to suggest, however, that in case your Commis- 
sion institutes proceedings to determine the reasonableness or 
propriety of any such discontinuance by the receiver, or the 
adequacy of the service resulting therefrom, it can hardly be 
doubted that the court by which he was appointed would 
direct him to present the matter fully before your Commission, 
and, if not satisfied by any order entered by you, to appeal to 
the Supreme Judicial Court for a revision thereof, under St. 
1913, c. 784, § 27. Such a practice has been suggested by the 
United States Supreme Court to be an appropriate one in 
somewhat analogous cases. In re Tyler, 149 U. S. 164. By 
such a procedure all questions as to the operation and effect 
of the State statutes would be determined by our courts. If 
any Federal question or any question of general law arising 
in connection with the receivership proceedings then remained, 
it could be decided in the Federal courts in connection with 
the determination as to what order should be given to the 
receiver, if and after your order had been sustained by the 
Supreme Judicial Court. The Federal courts might possibly 
then be in a position where they must choose between direct- 



296 OPINIONS OF THE ATTORNEY-GENERAL. 

ing the receiver to obey the order of your Commission or re- 
quiring him to cease operating the railway. At best, in such 
cases, the court appointing the receiver is acting only in the 
interest of the creditors of the corporation, and has no author- 
ity to direct or permit violations of State laws for their benefit. 
Your third question, after stating the statutory provisions 
hereinbefore discussed, is as follows: — 

In view of these pro^^sions of the statutes, does this Commission have 
power to order a street railway company to restore service where it has 
been discontinued, and if so, what, in general, are the limitations upon this 
power? The commission has in mind questions such as these : — 

(a) Is a street railway company justified in discontinuing servace upon 
a portion of its railway because it yields httle or no return on investment, 
although the patronage is sufficient to meet running expenses? 

(b) Is a street railway company justified in discontinuing service dur- 
ing the winter months upon a portion of its railway because the patronage 
is not sufficient in such months to meet running expenses, althougli it is 
sufficient on the average throughout the j'ear to meet such expenses? 

(c) Is a street railway company justified in discontmuing service upon 
a portion of its railway because the patronage is not sufficient to meet 
running expenses, when such portion is located in a city where the fines 
of the company, taken as a whole, not only meet such expenses, but yield 
a return upon investment? 

As I have already pointed out, your Commission has author- 
ity to order a street railway company to restore service where 
it has been discontinued, at least so far as the tracks still re- 
main in the streets or upon the locations; but apart from the 
facts of particular cases, the limitations upon this power can 
be stated only in a most general way. I feel that it w^ill prove 
much more satisfactory for me to leave the discussion of this 
matter until your Commission has before it questions relating 
to the restoration of service upon specific lines. I can then 
consider the questions which you raise in their relation to the 
facts of the individual cases. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 297 



Teachers' Retirement Association — Teachers in Private 
Schools — Forty-sixth Amendment — State Aid. 

Teachers in schools which are privately owned cannot be members of the Teachers' 
Retirement Association since the adoption of the Forty-sixth Amendment to 
the Constitution, forbidding the expenditure of public money for aiding such 
schools, although such schools may be conducted under the order and super- 
intendence of a school committee and are "public schools," within the meaning 
of the Retirement Law (St. 1913, c. 832). Teachers in these schools previously 
enrolled as members of the Teachers ' Retirement Association are entitled only 
to the rights of withdrawing members of the association. 

You have called my attention to the fact that there are To the 
within the Commonwealth a number of schools and academies Retirement 

Board. 

which are privately owned but conducted under the order and ^ i9i8 

f '^ ^ ^ December 27. 

superintendence of duly elected school committees. You point 
out that, in view of the Forty-sixth Amendment to the Massa- 
chusetts Constitution, which became effective Oct. 1, 1918, no 
expenditure of the public money can hereafter be made for the 
purpose of maintaining or aiding such' schools, since they are 
undertakings which are not publicly owned. In view of these 
conditions, you ask me the following questions relative to the 
administration of the Teachers' Retirement Act: — 

1. Should the teachers who have entered the service of these private 
schools since October 1 be members of the Retirement Association — 

(a) If they were formerly members of the Retirement Association, 
having formerly been employed in a public school? 

(6) If they are just commencing their service as teachers? 

2. Should teachers who have been employed in these academies and 
who have been enrolled as members of the association be continued as 
members of the Retirement Association? 

Assuming that these schools are conducted under the order 
and superintendence of the school committee of the particular 
town where they are located, they come within the definition 
of "public school" set forth in the Retirement Law (St. 1913, 
c. 832, § 1, par. 5). Prior to the adoption of said amendment 
to the Constitution, the public moneys could legally be ex- 
pended in maintaining and aiding these schools, and thus 
teachers therein could be given the benefit of the Teachers' 
Retirement Act. It seems plain, however, that making pro- 



298 OPINIONS OF THE ATTORNEY-GENERAL. 

vision for the payment of a pension out of public funds upon 
the retirement from service of a teacher in one of these schools 
is a proposal for the expenditure of public money in aid of 
such a school, and is, therefore, forbidden by said amendment 
to the Constitution. Thus, to the extent that the Teachers' 
Retirement Act authorizes membership in the Teachers' Re- 
tirement Association for teachers in these schools, it is in 
violation of this amendment, and, since Oct. 1, 1918, to that 
extent void. Membership in the association must hereafter be 
limited to teachers in schools which are "publicly owned" as 
well as "under the exclusive control, order and superintendence 
of public officers" (Forty-sixth Amendment). 

Thus, in answer to your first question, it must be said that 
no teacher who has entered the service of any of the schools 
to which you refer since Oct. 1, 1918, can be a member of the 
Teachers' Retirement Association. It is immaterial whether 
such teachers were previously members of the association or 
not. They are plainly excluded from future membership by 
the fact that they have entered the service of a school which 
is no longer a public school. 

A similar answer must be made to your second question. 
Since Oct. 1, 1918, these schools have ceased to be schools in 
the aid of which the public moneys may be appropriated. By 
the adoption of the Forty-sixth Amendment any authority for 
the maintenance of these schools as public institutions was 
revoked, and thus they were required to be returned to private 
control. Accordingly, teachers employed therein ceased to be 
teachers in the public schools, and the public moneys cannot 
thereafter be used to provide pensions for them. 

This result is not, in my judgment, affected by the exception 
in the amendment that "appropriations may be made ... to 
carry out legal obligations, if any, already entered into." The 
Commonwealth has entered into no legal obligation binding it 
to maintain these schools as public institutions, or restricting 
its right in any way to modify* their character. It has not 
bound itself not to abolish the positions of these teachers as 
public employees. The establishment of a pension system can- 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 299 

not limit the right of the Commonwealth thereafter to abandon 
or abolish any department or branch of the public service. 
This is all that has been done in the instance under consider- 
ation. Public schools maintained upon private property have 
been abolished as public institutions. 

It follows, in my opinion, that teachers in these schools who 
have been enrolled as members of the Teachers' Retirement 
Association can no longer be continued in its membership. 
By continuing in the service of these schools after Oct. 1, 1918, 
they must be regarded as having withdrawn from service in the 
public schools and entered the service of a private institution. 
They are, of course, as withdrawing members of the association, 
entitled to all the rights granted upon such withdrawal by sec- 
tion 7 of the Teachers' Retirement Act. 



Boards of Health — Disease Dangerous to Health — 
Notice. 

Gen. St. 1918, c. 130, relieving cities and towns failing to give notice to the Com- 
monwealth from the expense of caring for persons having a disease dangerous 
to health, who reside or have no settlement in such city or town, is not retro- 
active. 

You request my opinion as to whether Gen. St. 1918, c. 130, ^o^^J^e^^ 
which amends section 52 of chapter 75 of the Revised Laws, ^^'Y^j^- 
is retroactive. Jammir lo. 

Sections 52, 53 and 57 of chapter 75 of the Revised Laws 
read as follows : — 

Section 52. If the board of healtli of a city or town has had notice of 
a case of smallpox, diphtheria, scarlet fever or of any other disease danger- 
ous to the public health therein, it shall within twentj^-fours hour there- 
after give notice thereof to the state board of health stating the name 
and the location of the patient so afflicted, and the secretary thereof shall 
forthwith transmit a copy of such notice to the state board of charity. 

Section 53. If such board refuses or neglects to give such notice, the 
city or town shall forfeit its claim upon the commonwealth for the pay- 
ment of expenses as provided in section fifty-seven. 



300 OPINIONS OF THE ATTORNEY-GENERAL. 

Section 57. Reasonable expenses incurred by the board of health in 
making the provision required by law for a person infected with the small- 
pox or other disease dangerous to the public health shall be paid by such 
person, his parents or master, if able; otherwise by the town in which he 
has a legal settlement. If he has no settlement, they shall be paid by the 
commonwealth and the bills therefor shall be approved by the state board 
of charity. 

R. L., c. 75, § 52, has been amended by St. 1907, c. 480, 
§ 1, and by Gen. St. 1916, c. 55, but these amendments do not 
affect the question in issue. 

Gen. St. 1918, c. 130, amending said section 52, reads as 
follows: — 

Section 1. The board of health of every city and town, or in towns 
not having such a board, the board of selectmen acting as a board of 
health, shall appoint some person, who may or may not be a member of 
the board, whose duty it shall be to give notice to the state department of 
health of diseases dangerous to the public health as provided by section 
fifty-two of chapter seventy-five of the Revised Laws, as amended by 
section one of chapter four hundred and eighty of the acts of nineteen 
hundred and seven and by chapter fifty-five of the General Acts of nine- 
teen hundred and sixteen, and in case of the absence or disability of such 
appointee the board shall appoint another person to perform said duty 
during such absence or disability. Such appointments and the accept- 
ance thereof by the persons so appointed shall be placed upon the records 
of the board. Any person who accepts such an appointment and who 
wilfuUy refuses or wilfully neglects or through gross negligence fails to 
make and send the notices required by said section fifty-two, as amended 
as aforesaid, in accordance with its terms, shall be punished by a fine of 
not exceeding fifty dollars. 

Section 2. A claim of a city or town against the commonwealth for 
reasonable expenses incurred by the board of health of such city or town, 
or by the board of selectmen acting as such, in making the provision 
required by law for persons infected with a disease dangerous to the public 
health shall not be defeated by reason of the failure on the part of its 
board of health, or by the board of selectmen acting as such, to give notice 
of such disease to the state department of health in accordance with the 
provisions of said section fifty-two as amended as aforesaid, if such claim 
is otherwise a valid claim against the commonwealth. 

The general rule is, that all statutes are prospective in their 
operation, unless an intention that they shall be retroactive 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 301 

appears by necessary implication from their words, context or 
objects when considered in the light of the subject-matter, the 
pre-existing state of the law and the effect upon existing rights, 
remedies and obligations. All legislation commonly looks to 
the future, not to the past, and has no retroactive effect unless 
such effect manifestly is required by unequivocal terms. Gar- 
field V. Bemis, 2 Allen, 435; Bncher v. Fitchburg Railroad, 131 
Mass. 156; Kelley v. Boston & Maine Railroad, 135 Mass. 448; 
Whitman v. Hapgood, 10 Mass. 437; King v. Tirrell, 2 Gray, 
331; Gerry v. Stoneham, 1 Allen, 319; North Bridgewater Bank 
V. Copeland, 7 Allen, 139; Commomcealth v. Sudbury, 106 Mass. 
268. 

That certain statutes retrospective in their operation may 
be passed when of a remedial character and not affecting sub- 
stantive rights regulating practice, procedure and evidence is 
not controverted, but the general rule that is applied to all 
statutes is that they are to have a prospective operation only 
unless it is otherwise distinctly expressed in them or clearly 
implied from the necessity of thus giving effect to their provi- 
sions. 

The general rule that statutes are prospective only in their 
effect has been applied to statutes respecting suits on bonds 
for breach of liberty in prison yards, Call v. Bagger, 8 Mass. 
423; evidence of an advancement. Whitman v. Hapgood, 10 
Mass. 437; limitations of actions against executors and ad- 
ministrators, King v. Tirrell, 2 Gray, 331, Page v. Melvin, 10 
Gray, 208; consummation of illegal railroad location, Com- 
monwealth V. Old Colony & Fall River Railroad, 14 Gray, 93; 
extension of equity jurisdiction. Buck v. Doudey, 16 Gray, 555; 
remedies against estates of deceased persons, Garfield v. Bemis, 
2 Allen, 445; recovery of illegal assessments, Gerry v. Stone- 
ham, 1 Allen, 319; abolishing usury as a defence, North Bridge- 
water Bank v. Copeland, 7 Allen, 139, W kitten v. Hay den, 7 
Allen, 407; complaints for support of bastard children, Wheel- 
right V. Greer, 10 Allen, 389; validation as a corporation seal 
of a mere impression upon paper, Bates v. Boston & New York 
Central Railroad, 10 Allen, 256; sales of intoxicating liquor, 



302 OPINIONS OF THE ATTORNEY-GENERAL. 

Hotchkiss V. Finari, 105 Mass. 86; settlements and supports 
of paupers, Somerset v. Dighton, 12 Mass. 383, Commomvealth 
V. Sudbury, 106 Mass. 268, Cambridge v. Boston, 130 Mass. 
357, Abington v. Duxbury, 105 Mass. 287, Worcester v. Barre, 
138 Mass. 101; suits against married women as if they were 
single and exonerating husbands from liability for judgment 
in such suits, Hill v. Duncan, 110 Mass. 238, Towle v. Toivle, 
114 Mass. 167, McCarty v. DeBest, 120 Mass. 89; special judg- 
ment where the defendant has given bond to dissolve attach- 
ment, and becomes bankrupt, FicJcett v. Durham, 119 Mass. 
159, Barnstable Saoings Bank v. Higgins, 124 Mass. 115, 
Mosher v. Murjjhy, 121 Mass. 276; removal of defence in 
personal injury suits of travelling on the Lord's day, Bucher 
V. Fitchburg Bailroad, 131 Mass. 156, Read v. Boston & Albany 
Railroad, 140 Mass. 199; the admission of dying declarations 
upon indictments for procuring miscarriage. Commonwealth v. 
Homer, 153 Mass. 343; restricting the number of places 
licensed for the sale of intoxicating liquors, Commomvealth v. 
Hayes, 149 Mass. 32; the creation of an action of tort for 
death caused by negligence, Kelley v. Boston & Maine Railroad, 
135 Mass. 448, Holland v. Lynn & Boston Railroad, 144 Mass. 
425, Gunn v. Cambridge Railroad, 144 Mass. 430; bonds to be 
given to probate courts, Conant v. Newton, 126 Mass. 105; 
statements to be filed for mechanic's liens. Pierce v. Cabot, 159 
Mass. 202; revocation of will by marriage, Swan v. Sayles, 165 
Mass. 177, Ingersoll v. Hopkins, 170 Mass. 401; divorces, 
Burt v. Burt, 168 Mass. 204, 207; damages accruing from fire 
set by locomotive. Wild v. Boston & Maine Railroad, 171 
Mass. 245; violation of building ordinances. Commonwealth v. 
Roberts, 166 Mass. 281; restrictions of time within w^hich suit 
may be brought for assessment against policy holders of a 
mutual insurance company, Sanford v. Hampden Paint & 
Chemical Co., 179 Mass. 10; approval by public boards, Haver- 
hill V. Marlborough, 187 Mass. 150; and deduction for good 
behavior in State Prison sentences. Murphy v. Commonwealth, 
172 Mass. 264, 267. 
The statutes considered in all these foregoing cases have 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 303 

been held to apply only to causes arising subsequent to their 
taking effect. 

The same rule prevails generally elsewhere. Reynolds v. 
Mc Arthur, 2 Pet. 417, 434; Murray v. Gibson, 15 How. 421; 
Chew Heong v. United States, 112 U. S. 536, 559; Cook v. 
United States, 138 U. S. 157, 181; Herrick v. Boquillas Land 
& Cattle Co., 200 U. S. 96; Union Pacific Railroad v. Laramie, 
231 U. S. 190, 199; Cameron v. United States, 231 U. S. 710, 
720; Dash v. Van Kleeck, 7 Johns. 477, 502; Lombard, Ap- 
pellant, 88 Maine, 587; Gardner v. Lucas, 3 App. Cas. 582, 
597; The Queen v. Ipsiiyich Union, 2 Q. B. D. 269; Moon v. 
Burden, 2 Exch. 22; Knight v. Lee, 1 Q. B. 41. 

Until Gen. St. 1918, c. 130, went into effect the notice re- 
quired by R. L. 75, § 52, was a condition precedent to the 
right of the city or town to maintain an action against the 
Commonwealth for the payment of expenses, as provided in sec- 
tion 57. There are several decisions of our Supreme Judicial 
Court on questions of law similar to the question at hand. In 
Shallow V. City of Salem, 136 Mass. 136, the plaintiff brought 
suit for personal injuries caused by a defect in a highway. 
The notice given by him under St. 1877, c. 234, was held by 
the court to be insufficient. St. 1882, c. 36, enacted subse- 
quently to the plaintiff's injury and to the giving of the notice 
by him. provided that "no notice shall be deemed to be in- 
valid or insufficient solely by reason of any inaccuracy in 
stating the time, place or cause of the injury: provided, that 
it is shown that there w-as no intention to mislead, and that 
the party entitled to notice was not in fact misled thereby." 

The plaintiff contended that, inasmuch as there was no 
intention to mislead, and as the defendant was not actually 
misled by the insufficiency of the notice, St. 1882, c. 36, was 
to be construed as acting retrospectively, and thus as vali- 
dating the notice. The court in its opinion went on to say: — 

Even if it be remedial in its character, and intended to affect procedure 
only, full force is given to it when it is applied to cases in which the time 
for notice had not expired, and the notice had not been given, although the 
injury might have occurred before its passage. To treat it as applicable 



304 OPINIONS OF THE ATTORNEY-GENERAL. 

to those cases where the time for notice had expired, and where no suf- 
ficient notice had been given, is to give it a retroactive character in no 
respect demanded by its language, . . . The language of the St. of 1882 
applies to notices given after the act shall take effect. 

In Dalton v. Salem, 139 Mass. 91, which was a suit for 
personal injuries caused by a defect in a highway, the prin- 
ciple of law decided in Shallow v. Salem was followed. The 
court said : — 

Under the statutes in force at the time the plaintiff received her injury, 
it was necessary for her, as a condition precedent to her right to maintain 
this action, to give to the defendant a notice in writing of the time, place, 
and cause of her injury. The St. of 1882, c. 36, does not apply to this 
case. 

In Pierce v. Cahot, 159 Mass. 202, the action was a petition 
for enforcement of a mechanic's lien. The notice in this case, 
being a condition precedent, was a statement of account, filed 
in the registry of deeds, under the section of the Public Stat- 
utes. The statement w^as insufficient. The statement was 
filed in September, 1891. The petitioners claimed that the 
defect was cured by St. 1892, c. 191, which law went into 
effect on April 22, 1892. The court followed the decision of 
Shallow V. Salem, and held that the statute could not be held 
to be applicable to statements filed before it went into effect. 

In McNamara v. Boston & Maine Railroad, 216 Mass. 506, 
the plaintiff brought an action to recover damages for injuries 
received by him upon a platform of a railroad station. No 
sufficient notice of the cause of the plaintiff's injuries was 
given to satisfy the requirements of St. 1908, c. 305, and the 
time for giving notice had expired before the enactment of 
St. 1912, c. 221. The court said: — 

St. 1912, c. 221, having been enacted after the time expired for giving 
notice in this case, has no bearing. Statutes commonly are to be con- 
strued as prospective only in their operation. 

Gen. St. 1918, c. 130, is not to be distinguished as to its 
effect upon pending or past matters from those under con- 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 

sideration in the numerous cases cited above. There is nothing 
to show that the Legislature intended that this statute should 
be taken out of the operation of the general rule. In my 
opinion, there was no intention, either express or implied, that 
this statute should be retroactive. 



305 



Minimum Wage Commission — Powers — Minimum Wage 
Board. 

The Minimum Wage Commission has no power to qualify or to limit the applica- 
tion of any determination made by a wage board. 

You have requested my opinion upon the following question: — to the Mini- 
mum Wage 

A wage board in a certain occupation, in its report, states that the sum 1919 
required to supply the necessary cost of living and to maintain in health a '^'^""'^'"^ 
female employee is not less than, say, $11, and, after showing that while 
the usual day's work is six hours it does vary from three hours in some 
establishments to eight or nine in others, it determines the minimum 
hourly wage suitable for the said employee of ordinary ability to be, say, 
30 cents. This hourly rate in case of a six-hour day would not produce 
more than 111, but in case of an eight or nine hour day the weekly wages 
would exceed $11. If the Commission otherwise approves the determi- 
nation of the wage board, can it issue a decree fixing an hourly rate, with a 
provision that "the total payment for a week's work need not exceed $11, 
with a pro rata deduction for time lost" ? 

Section 5 of the act establishing your Commission, and pro- 
viding for the determination of the minimum wages for women 
and minors, provides, in part, that "each wage board . . . 
shall endeavor to determine the minimum wage, whether by 
time rate or piece rate. . . . When a majority of the members 
of a wage board shall agree upon minimum wage determina- 
tions, they shall report such determinations to the commission, 
together with the reasons therefor and the facts relating 
thereto." 

Section 6 of the act provides, in part, that "upon receipt of 
a report from a wage board, the commission shall review the 
same, and may approve any or all of the determinations rec- 



306 



OPINIONS OF THE ATTORNEY-GENERAL. 



ommended, or may disapprove any or all of them, or may 
recommit the subject to the same or to a new wage board. 

I understand that the question has arisen as the result of a 
recommendation of the office and other building cleaners' wage 
board made to your Commission on July 18, 1918. The fol- 
lowing determinations were reported by that wage board to 
you : — 

1. The minimum wage to be paid to any female employed 
as an office or other building cleaner shall be as follows: — 

(a) Between the hours of 7 p.m. and 8 a.m., 30 cents an 
hour. 

(6) Between 'the hours of 8 a.m. and 7 p.m., 26 cents an hour. 

I am of the opinion that the powers given you under section 
6 of the statute referred to limit you to approving or disap- 
proving all of the determinations of the wage board or to 
approving certain of the determinations and disapproving 
others which are separable from one another. You have no 
power, in my opinion, to qualify or limit the application of 
any determination made by the board. If the determination 
without such qualifications and limitations is unsatisfactory to 
your Commission, it is your duty to disapprove the same, or 
to recommit the subject to the said wage board or to a new 
wage board. 



Unregistered Pharmacist — Right to do Business. 



To the 
Board of 
Registration 
in Pharmacy. 

1919 
January 20. 



An unregistered person lawfully actively engaged in the business of pharmacy as a 
copartner or stockholder prior to the passage of St. 1913, c. 720, may thereafter 
actively engage in the drug business if associated with a registered pharmacist. 

You have made an inquiry relative to the right of an un- 
registered pharmacist who was a copartner or a stockholder 
in a drug business at the time of the passage of St. 1913, c. 
720, actively to engage in the drug business, but in another 
partnership or corporation. 

Section 1 of said chapter 720 provides: — 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 307 

No unregistered co-partner or unregistered stockholder in a corporation 
doing a retail drug business shall hereafter be actively engaged in the drug 
business. 

Section 2 provides an exception to the above, as follows: — 

The provision of . . . section one of this act; that no unregistered 
co-partner or unregistered stockholder in a corporation doing a retail 
drug business shall hereafter be actively engaged in the drug business, 
shall not apply to those engaged in said business at the time of the pas- 
sage of this act. 

It becomes important to determine what is meant by the 
words "shall not apply to those engaged in said business." 
Do they refer to the drug business generally, or to a particular 
business conducted by a particular partnership or corporation? 
Does this language exempt from the operation of the law all 
persons who at the date of passage were then unregistered 
stockholders or partners, or does it merely exempt such persons 
so long as they continue to be connected with a specific cor- 
poration or partnership? The language is not at all clear. 

If a narrow interpretation is given to the exception, then a 
surviving unregistered partner cannot continue to engage in 
the drug business upon the death of one of his partners, not- 
withstanding the business is to be continued at the same place 
and by the remaining partners. St. 1913, c. 720, contains a 
penalty for its violation, and consequently is to be construed 
strictly in favor of the unregistered copartner or stockholder 
excepted from its provisions. 

The provisions relating to an unregistered copartner first 
appeared in St. 1908, c. 525, § 2, where it w'as provided as 
follows: — 

No unregistered co-partner shall hereafter be actively engaged in the 
business of pharmacy; but this provision shall not apply to those engaged 
in the business at the time of the enactment hereof. 

In my judgment, the exception contained in this provision 
permitted a copartner then engaged in the business of pharmacy 
to continue in the business he was then in, or to engage there- 
after as a copartner with others in the business of pharmacy. 



308 



OPINIONS OF THE ATTORNEY-GENERAL. 



By the passage of St. 1913, c. 720, the provision affecting 
an unregistered copartner was enlarged to include unregistered 
stockholders in a corporation doing a retail drug business. 
I do not think it is to be presumed that the statute of 1913 
intended to do anything more than to include unregistered 
stockholders in the exception. 

Accordingly, it is my opinion that an unregistered person 
who was lawfully actively engaged in the business of pharmacy 
prior to May 28, 1913, as a partner wath a registered phar- 
macist, or a stockholder who was lawfully actively engaged 
in the business of pharmacy, may actively engage in the drug 
business as an unregistered copartner or unregistered stock- 
holder in a corporation engaged in a retail drug business. 



To the 

Commissioner 
of Education. 

1919 
January 27. 



School Permits — Minors — Domestic Service. 

Under the provisions of R. L., c. 44, § 1, a girl between the ages of fourteen and six- 
teen must first receive a permit from the superintendent of schools in order 
legally to leave school and engage in domestic duties in her own home. 

You have requested my opinion upon the foUow^ing ques- 
tion: — 

Whether, under the provisions of R. L., c. 44, § 1, a girl between the 
ages of fourteen and sixteen must receive either a permit or a certificate 
from the superintendent of schools in order that she may legally leave 
school and engage in domestic duties in her own home. 



R. L., c. 44, § 1, as amended by St. 1905, c. 320, St. 1906, 
c. 383, St. 1913, c. 779, § 1, and Gen. St. 1915, c. 81, § 1, 
so far as it affects your question, provides that "every child 
under sixteen years of age who has not received an employ- 
ment certificate as provided in this act and is not engaged in 
some regular employment or business for at least six hours 
per day or has not the written permission of the superintendent 
of schools of the city or town in which he resides to engage in 
profitable employment at home, shall attend a public day 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 309 

school in said city or town or some other day school approved 
by the school committee, during the entire time the public 
schools are in session." The section then provides that the 
above provisions are subject to exceptions as enumerated. In 
brief, the statute requires the attendance at school of every 
child under sixteen years of age unless the child falls within 
specific excepted classes. 

A girl, under the facts stated in your question, does not 
come within any of the statutory exceptions, and, accordingly, 
I am of the opinion that it is necessary for her to obtain 
written permission of the superintendent of schools to leave 
school and engage in domestic duties in her own home. The 
giving of the written permission by the superintendent is the 
proper method in a case like this, as the giving of an employ- 
ment certificate, in my opinion, covers cases where a child is 
permitted to work in a factory, workshop, manufacturing, 
mechanical or mercantile establishment. St. 1909, c. 514, 
§ 17, provides that the "exercise of manual labor in a private 
house or private room by the family dwelling therein or by any 
of them or if a majority of the persons therein employed are 
members of such family, shall not of itself constitute such 
house or room a workshop." 



the 



Constitutional Law — Appropriation by Legislature — 
Private Institutions. 

An appropriation by the Legislature in furtherance of a pre-existing agreement to 
provide moneys for a term of years to certain private institutions of learning 
is valid, under Article XL VI of the Amendments to the Constitution. 

You request my opinion upon the following question of co^njit^gg 

1 o «T . on Ways 

^^W • and Means. 

1919 

Are the items recommended for appropriation in favor of the Massa- Fe bruary 7. 
chusetts Institute of Technology and the Worcester Polytechnic Insti- 
tute, included in the Governor's Budget recommendations (House No. 
185), Items Nos. 473 and 474, valid and legal under Article XLVI of the 
Amendments to the Constitution of the Commonwealth? 



310 OPINIONS OF THE ATTORNEY-GENERAL. 

I assume these items are included in the budget to carry 
out the provisions of chapter 78 of the Resolves of the year 

1911, and chapter 87 of the Resolves of the year 1912. The 
first is a resolve in favor of the Massachusetts Institute of 
Technology, and the second is in favor of the Worcester Poly- 
technic Institute. These resolves are similar in character. 

The resolve in favor of the Massachusetts Institute of Tech- 
nology provides for the payment annually, for the term of 
ten years beginning with the first day of January, 1912, of 
the sum of $100,000, to be expended under the direction 
of the corporation of said institute, for the general purposes 
of the institute; provided, however, that the last five annual 
payments are conditioned upon the presentation of satisfactory 
evidence to the Governor and Council that the institute has 
received by bequest or gift from other sources the sum of 
$1,000,000 in addition to all funds held by it on the day of the 
approval of the resolve. 

The resolve in favor of the Worcester Polytechnic Institute 
provides for the annual payment to said institute, for the 
term of ten years beginning with the first day of September, 

1912, of the sum of $50,000, to be expended under the direc- 
tion of the corporation of said institute, for the general pur- 
poses of the institute; provided, however, that the last five 
payments are conditioned upon the presentation of satis- 
factory evidence to the Governor and Council that the insti- 
tute has received by bequest or gift from other sources prop- 
erty amounting in value to $350,000 in addition to the property 
held by it on the day of the approval of the resolve. 

The resolve in favor of the Massachusetts Institute of 
Technology further provides that, in consideration of the 
payments and during the continuance thereof, the institute 
shall maintain eighty free scholarships, to be granted by the 
Board of Education to residents or minor children of residents 
of Massachusetts; while the resolve in favor of the Worcester 
Polytechnic Institute provides that, in consideration of the 
payment to it and of the grant made by chapter 57 of the 
Resolves of the year 1869, the Worcester Polytechnic Institute 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 311 

shall maintain forty free scholarships, to be awarded to pupils 
of the public schools of Massachusetts. 

The Massachusetts Institute of Technology was chartered 
by the Legislature in 1861 for the purpose of instituting and 
maintaining a society of arts, a museum of arts and a school 
of industrial science, and aiding generally the advancement, 
development and practical application of science in connection 
with arts, agriculture, manufactures and commerce. 

The Worcester Polytechnic Institute was chartered in 1865 
under the name of the Worcester County Free Institute of 
Industrial Science, for the purpose of establishing and main- 
taining in the city of Worcester an institution to aid in the 
advancement, development and practical application of science 
in connection with arts, agriculture, manufactures, mercantile 
business and such other kindred branches of practical educa- 
tion as said corporation shall determine. 

The appropriation of money for the advancement of the 
purposes for which these institutions were chartered is un- 
doubtedly an appropriation of money for a public purpose,, 
and thus there is no constitutional objection to the appropria- 
tion of money in aid of these institutions, apart from Article 
XVIII of the Amendments to the Constitution. 

Article XVIII of the Amendments to the Constitution 
contains an exception from its prohibitions that appropriations 
may be made for the maintenance and support of the Soldiers' 
Home in Massachusetts and for free public libraries in any 
city or town, and to carry out legal obligations, if any, already 
entered into. I assume that the legal obligations referred to 
in the exception are such obligations as would constitute a 
contract the impairment of which is prohibited by the Federal 
Constitution. 

Your question therefore resolves itself to this: Has the 
Commonwealth, by chapter 78 of the Resolves of the year 
1911 and chapter 87 of the Resolves of the year 1912, entered 
into contracts the impairment of which is prohibited by the 
terms of the Federal Constitution? 

It was stated in the opinion in the case of Gary Library v. 



312 OPINIONS OF THE ATTORNEY-GENERAL. 

Bliss, 151 Mass. 3()4, that it was settled by the case of Dari- 
mouth College v. Woodward, 4 Wheat. 518, that the word 
"contract," as used in the Constitution of the United States, 
"is to be interpreted broadly and liberally, so as to include all 
obligations which should be enforced and held sacred growing 
out of agreements, express or implied, for which there is a 
valuable consideration." 

I am of the opinion that the Legislature of the year 1911 
intended by the passage of chapter 78 of the resolves of that 
year to hold out an inducement to the Massachusetts Institute 
of Technology to obtain, by solicitation or otherwise, $1,000,000 
to enable it to better carry on the purposes for which the 
institute was created, and to induce members of the public to 
give to the institute $1,000,000; and the inducement was that 
in the event the institute obtained, by gift or otherwise, 
$1,000,000, on its part the Commonwealth would appropriate 
to the institute $1,000,000 in annual payments of $100,000 each. 
If the Legislature intended to hold out an inducement of this 
character, it seems to me that it intended the inducement to 
be one of substance; that is, one legally binding the Common- 
wealth on its part to carry out its assurance given to the 
institute, if the institute on its part accepted the proposition 
contained in the resolve, and carried out the conditions im- 
posed in the resolve. Nor do I think the fact that the action 
of the General Court was by resolve rather than by an act 
is important. A long-established usage seems to justify re- 
solves of this character, and I am of the opinion that they have 
in the present instance the same binding effect upon the Com- 
monwealth as if the action of the General Court had been 
taken by acts. Furthermore, this method seems to be recog- 
nized by Article XI of Section I of Chapter II of Part the 
Second of the Constitution. 

If, therefore, the Massachusetts Institute of Technology has 
produced satisfactory evidence that it has obtained $1,000,000 
by bequest or gift from other sources, and has maintained the 
scholarships required, I am of the opinion that the institute 
has accepted the offer of the Commonwealth and has met its 



HENEY C. ATTWILL, ATTORNEY-GENERAL. 313 

obligations incurred by such acceptance; and thus chapter 78 
of the Resolves of the year 1911 constitutes a contract binding 
upon the Commonwealth. What I have said in relation to the 
resolve in favor of the Massachusetts Institute of Technology 
applies to the resolve in favor of the Worcester Polytechnic 
Institute. 

Accordingly, your question is to be answered in the affirma- 
tive. 



Street Railways — Cancellation of Rates — Redemption 
OF Outstanding Tickets. 

Unused reduced-rate tickets, after the schedule of rates under which they were 
issued has been canceled, are to be redeemed at the pro rata value of the unused 
portion. 

You request my opinion as to the rights of persons who to the 
hold partiallv used reduced-rate tickets issued bv street rail- Commission. 

1919 

ways and steam railroads, concerning the use of such tickets Fe bruary 7. 
after the schedule of rates under which they were issued has 
been canceled and new rates providing for a higher fare have 
become effective. 

St. 1913, c. 784, § 20, requires every common carrier to file 
with your Board schedules of fares to be charged by it for 
service rendered or furnished within the Commonwealth. 
After such schedules have become effective every carrier is 
forbidden to charge any different rates from those stated in the 
schedules. This section authorizes a change to be made in any 
schedule of rates on file by a thirty days' notice to your Board 
by the carrier. By section 21 you are empow^ered to investi- 
gate the propriety of any such proposed changes, to suspend 
the taking effect of the same and to substitute new rates 
therefor if, in your judgment, the proposed rates are unreason- 
able. W^hen, however, any change in a schedule of fares has 
become effective, either by the action of the carrier without 
interference by you or as a result of an order made by you 
after an investigation, it is plain that such new rates become 
the only rates which may legally be charged by the carrier. 



314 OPINIONS OF THE ATTORNEY-GENERAL. 

It is forbidden by section 20 to charge fares upon any other 
basis. 

Accordingly, in my opinion, when a schedule of rates pro- 
viding for reduced-rate tickets to be sold in books or in lots 
of a specific number has been canceled in the manner provided 
in St. 1913, c. 784, and a new schedule substituted there- 
for, eliminating such tickets or increasing the amount to be 
charged for them, a carrier is not only not required thereafter 
to accept the old tickets, but is actually forbidden by law to 
do so. Assuming that these tickets constitute a contract 
between the person purchasing them and the company issuing 
them, they are contracts subject to cancellation by a change 
of rates made effective in accordance with the provisions of 
law. To hold otherwise would be in effect to discriminate in 
favor of persons who had been farsighted enough to buy up 
quantities of such tickets when there was a prospect of an 
increase in rates. Any such discrimination is directly for- 
bidden by section 20. 

I understand that the schedule under which the ticket was 
issued which gave rise to your inquiry provided that partially 
used tickets would be redeemed by the company at the differ- 
ence between the cost of the complete ticket and the full cash 
fare for the rides represented by the used portions. In my 
judgment, this provision applies only to tickets presented for 
redemption by purchasers while the rate is in force. It does 
not apply to cases where the rate under which the ticket was 
issued has been canceled by act of the carrier or of your 
Board. In such cases, in my opinion, the carrier is required 
to redeem outstanding tickets at the pro rata value of the 
unused portion. I understand that the company involved in 
the case under consideration is entirely ready to redeem upon 
this basis. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 315 



Constitutional Law — Payments by Commonwealth — 
Private Institutions — "Anti-aid" Amendment. 

The payment of moneys to the New England Asylum for the Blind, later changed 
to the Perkins Institution and Massachusetts School for the Blind, under the 
provisions of St. 1829, c. 113, and under subsequent legislation, does not con- 
stitute a contractual obligation on the part of the Commonwealth, and as the 
management of the institution is not under the exclusive control of the Com- 
.monwealth, further payments to it by the Commonwealth are prohibited under 
the provisions of the "anti-aid" amendment. 

I acknowledge your letter in which you ask the following: — xothe 

Commissioner 

Whether Article XLVI of the Amendments to the Constitution pro- o^ Education, 
hibits pajonents by the Commonwealth of an annual grant to the Perkins Fe bruary 7. 
Institution and Massachusetts School for the Blind, in accordance with 
the provisions of Res, 1864, c. 56, as amended. 

The first provision made by the Legislature calling for the 
payment of funds to the New England Asylum for the Blind 
appears in St. 1829, c. 113, which was the act of incorporation. 
By section 7 of said chapter it was provided that the State 
should pay to said corporation, for the maintenance and edu- 
cation of each blind person sent to the said asylum under the 
authority of the Legislature, the same compensation as by the 
by-laws of said corporation might be demanded and was 
actually received for the maintenance and education of such 
other blind persons as were at that time residing in said asylum. 

By Res. 1830, c. 81, the Legislature allowed the unexpended 
balance of the appropriation for the deaf and dumb to be 
paid to the New England Asylum for the Blind for the current 
year, and from time to time thereafter upon the Governor's 
warrant, unless other disposition thereof was made by the 
General Court. 

Res. 1833, c. 28, provided that $6,000 was to be paid an- 
nually to this institution during the pleasure of the Legislature. 

Res. 1847, c. 49, allowed the payment of $9,000 at the 
pleasure of the Legislature, on condition that the asylum 
should receive forty State beneficiaries, if so many should be 
recommended. All previous grants were repealed. 

By Res. 1855, c. 62, the annual appropriation was increased 



310 OPINIONS OF THE ATTORNEY-GENERAL. 

from $9,000 to $12,000 a year, the same to continue at the 
pleasure of the Legislature. 

Res. 1861, c. 51, provided that an additional appropriation 
of $3,000 be made on condition that the trustees admit all 
such persons as the Governor might designate, and educate 
them gratuitously. Res. 1862, c. 84, and Res. 1863, c. 65, 
repeated the preceding grant. 

By Res. 1864, c. 56, the Legislature provided that the 
annual appropriation in favor of the Perkins Institution and 
Massachusetts Asylum for the Blind should be increased from 
$12,000 a year to $16,000 a year, commencing from the first 
day of April, 1864, and continuing until otherwise ordered by 
the Legislature. 

Res. 1868, c. 12, provided that $9,000 should be allowed in ad- 
dition to the regular appropriation of $16,000 to this institution. 

By Res. 1869, c. 19, it appears that an appropriation of 
$5,000 was made, the same to be paid annually in addition to 
the sums authorized by Res. 1864, c. 56, and Res. 1868, c. 12, 
making an annual appropriation that year and thereafter of 
$30,000, subject to the conditions of Res. 1864, c. 56. This 
was to supersede the appropriation of $16,000 made by St. 
1869, e. 27. The last payment by the State of $30,000 to this 
institution was made under the authority of Spec. St. 1918, 
c. 110. After considering this and other legislation dealing 
with the payment of State funds to this school, it appears that 
all appropriations since 1869 have been made under the au- 
thority provided by Res. 1869, c. 19. 

On examining the legislation pertaining to this institution 
it is apparent that at the present time there is no existing con- 
tract between the Commonwealth of Massachusetts and the 
Perkins Institution and Massachusetts School for the Blind 
which calls for the payment of money annually to the school 
in question. In my judgment, all past appropriations by the 
Legislature must be considered as gratuities which have been 
paid subject to the pleasure of the Legislature rather than as 
the fulfilment of any contractual obligation on the part of the 
Commonwealth. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 317 

St. 1829, c. 113, § 4, provided that the New England Asykim 
for the Blind should be under the direction and management 
of twelve trustees, who were to be chosen annually and to 
remain in office until others were chosen and qualified in their 
stead. Four of the trustees were to be chosen by the board 
of visitors, and the remaining eight by the corporation itself. 

By St. 1864, c. 96, the Governor was granted the power 
formerly vested in the board of visitors to appoint four trustees 
to hold office for one year, or until their successors were ap- 
pointed. Such portion of St. 1829, c. 113, as authorized the 
appointment of trustees by a board of visitors was repealed. 

Res. 1869, c. 71, provided that the sum of $80,000 should be 
appropriated for the purpose of erecting suitable buildings for 
the use of the Perkins Institution and Massachusetts Asylum 
for the Blind, provided that no portion of said sum should be 
paid until the said trustees conveyed to the Commonwealth by 
a good and sufficient deed, free from all incumbrances, the 
land on which the buildings to be erected should stand, and so 
much adjacent thereto as the Governor and Council should re- 
quire. It appears that later the institution desired to dispose 
of the property which was conveyed to the Commonwealth in 
compliance with the provisions of Res. 1869, c. 71, and accord- 
ingly a resolve was passed which authorized and directed the 
Treasurer and Receiver-General of the Commonwealth to con- 
vey to the Perkins Institution and Massachusetts School for 
the Blind the land which was conveyed to the Commonwealth 
in compliance with the provisions of said chapter 71. See Res. 
1909, c. 90. 

It is to be noted that on Oct. 3, 1877, the name of the insti- 
tution was changed to the Perkins Institution and Massachu- 
setts School for the Blind. 

Section 2 of Article XLVI of the Amendments to the Con- 
stitution provides, in part, as follows: — 

... no grant, appropriation or use of public money or property or loan 
of public credit shall be made or authorized by the commonwealth or any 
political division thereof for the purpose of founding, maintainmg or 
aiding any school or institution of learning, whether imder public control 



318 OPINIONS OF THE ATTORNEY-GENERAL. 

or otherwise, wherein any denominational doctrine is inculcated, or any 
other school, or any college, infirmary, hospital, institution, or educa- 
tional, charitable or religious undertaking which is not publicly owned 
and under the exclusive control, order and superintendence of public 
officers or public agents authorized by the commonwealth. . . . 

The present governing board of the Perkins Institution and 
Massachusetts School for the Blind consists of twelve trustees, 
eight of whom are chosen by the corporation and four of whom 
are appointed by the Governor. It is obvious that since the 
majority of the trustees of this institution are chosen by the 
corporation, it cannot be said that the management of the 
school is under the exclusive control of public officers or agents 
authorized by the Commonwealth of Massachusetts, I am 
informed by the secretary of this institution that the legal title 
to all real estate owned by it at the present time is held in the 
name of the trustees, which precludes any. contention that the 
institution is publicly owned. 

Accordingly, I am of the opinion that as the school is consti- 
tuted at the present time it is prohibited from receiving further 
payments by the Commonwealth of Massachusetts. 



Chain Drug Stores — Central Prescription Department. 

A drug corporation operating a chain of stores may establish a central prescription 
department in one of them, provided each store is conducted in accordance 
with law. 

Board^of I have your letter concerning the proposal of a certain drug 

PhlrmTci°"'" corporation operating a number of stores in Boston to have 
February 11. a Central prescription department at one of its present stores, 
to which prescriptions taken in at each of its other stores in 
Boston should be sent for compounding and returned by mes- 
senger for delivery at the stores where they w^ere taken in. 
You ask: — 

Would such method affect the permit already granted by the Board to 
each of these stores whereby each store carries on its own prescription 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 319 

■department in the usual way; also, under this arrangement would the 
Board be justified in refusing to issue a permit? 

St. 1913, c. 705, as amended, provides in substance as 
follows : — 

Section 1. The term "drug business" as used in this act shall mean 
the sale, or the keeping or exposing for sale of drugs, medicines, , . . and 
the said term shall also mean the compounding and dispensing of phy- 
sicians ' prescriptions. 

Section 2. No store shall be kept open for the transaction of the 
retail drug business unless it is registered with and a permit therefor has 
been issued by the board of registration in pharmacy as herein provided. 

Section 3. The board of registration in pharmacy shall, upon appli- 
cation, issue a permit to keep open a store for the transaction of the retail 
drug business to such persons, firms and corporations as the board may 
<ieem qualified to conduct such a store. . . . 

Section 4. 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 business in such store is in the hands of a registered pharmacist. 

Section 5. The said board may suspend or revoke a permit issued 
hereunder for anj'^ violation of the law pertaining to the drug business 
. . . ; but before suspending or revoking any such permit the said board 
shall give a hearing to the person, firm or corporation holding the permit, 
after due notice to such person, firm or corporation of the charges against 
him or it and of the time and place of the hearing. . . . 

Section 7. Whoever violates any provision of this act shall be pun- 
ished by a fine of not less than five nor more than one hundred dollars; 
or by imprisonment for not more than thirty daj^s, or by both such fine 
and imprisonment. 

Upon examination of the above statute, as well as other 
acts pertaining to the drug business, I find nothing therein 
contained which prohibits the sending of prescriptions by one 
drug store to another which is operated by the same company, 
where both stores are being conducted in accordance wath the 
requirements of the statute, and the management of each of 
said stores is in the hands of a registered pharmacist. The 
compounding of prescriptions is but one incident of the retail 
drug business. Each store, however, in view of the fact that 



320 OPINIONS OF THE ATTORNEY-GENERAL. 

it is selling drugs and dispensing physicians' prescriptions^ 
must strictly comply with the provisions of the aforesaid act 
and of all acts pertaining to the drug business. Such a method, 
in my opinion, will not affect a permit already granted by the 
Board; nor do I think the Board will be justified in refusing 
to issue permits to the several stores of said corporation solely 
because of this arrangement. 



Constitutional Law — Public Operation of Street 
Railways. 

A law providing for the public operation of a street railway, allowing compensation 
to its stockholders upon the acceptance by them of terms, is constitutional. 

senite. ^ ^cg to acknowledge the receipt from the Honorable Senate 

Febr^uiry 12. of the following ordcr: — 

Ordered, That the Senate request the opinion of the Attorney-General 
as to the constitutionality of chapter one hundred and fifty-nine of the 
Special Acts of the year nineteen hundred and eighteen, entitled "An Act 
to provide for the public operation of the Boston Elevated Railway Com- 
pany." 

Your question is not directed to any particular feature of 
said act. Obviously, it is impossible for me to foresee every 
question that might be raised or that the Honorable Senate 
may have in mind. I have confined my attention to those 
questions which I conceive might be raised, and which to 
me seem to merit consideration. 

Said act provides for the appointment by the Governor, 
with the advice and consent of the Council, of public trustees 
to assume the control and operation of the Boston Elevated 
Railway for the period specified in the act. The Governor 
may remove said trustees, with the advice and consent of 
the Council. The act provides in section 2 that the trustees 
"shall take and have possession" of the Boston Elevated 
Railway Company and the property owned, leased or oper- 
ated by it, "in behalf of the Commonwealth, during the period 
of public operation" provided for in the act. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 321 

In effect the act provides for the taking over by the Com- 
monwealth of the possession and control of the Boston Ele- 
vated Railway system, with its leased lines, for a period of 
ten years, and for a longer period unless the Commonwealth 
elects to discontinue its operation of the road. This is done 
upon the assent of a majority of the stockholders of the 
Boston Elevated Railway Company and a majority of the 
stockholders of the West End Street Railway Company, 
and in consideration of the payment by the Commonwealth, 
during the period of public operation, of a fixed amount upon 
the capital stock of the Boston Elevated Railway Company 
out of the receipts of the road after the payment of interest 
charges and expenses of operation; and, in the event of the 
receipts being insufficient, then the Commonwealth is to pay 
out of its own treasury the amount necessary to meet any 
deficit, such deficit to be apportioned as provided by the act 
upon the communities specially benefited by the operation of 
the system. Thus in effect it Is the same as if the Common- 
wealth had taken a direct lease of the system, agreeing to 
assume the interest charges and operating expenses and to 
pay the corporation a rental; the corporation, on the other 
hand, agreeing to issue from time to time notes or certifi- 
cates of indebtedness to renew indebtedness already existing 
and properly chargeable to capital account. 

The provision of section 2 of the act, that in the manage- 
ment and operation of the company and its properties the 
trustees and their agents and employees shall be deemed to 
be acting as the agents of the company, obviously was in- 
serted in order that persons suffering damages by reason of 
the operation of the railway could continue to bring suits 
therefor as heretofore, thus obviating provisions which would 
otherwise have been necessary to enable them to bring their 
actions directly against the Commonwealth. 

I do not think there can be any question at this day that 
a street railway is a public utility, and that the appropria- 
tion of public funds for its construction, maintenance and 
operation is for a public purpose. In the present state of 



322 OPINIONS OF THE ATTORNEY-GENERAL. 

civilization and economic conditions the operation of means 
of transportation is of vital concern to all the people. Con- 
templation of the results of the discontinuance of the opera- 
tion of the Boston Elevated Railway and its leased lines 
graphically answers any suggestion that the welfare of the 
general public is not involved in its continued operation. 
Furthermore, a long line of decisions of the Supreme Judicial 
Court of this State seems to recognize that the construction, 
maintenance and operation of means of transportation are 
public purposes. 

Thus it was held, as far back as 1842, in the case of Worcester 
V. Western Railroad Corporation, 4 Met. 564, that properties 
devoted to railroad purposes were public works, and as such 
were exempt from taxation unless it was specifically provided 
in the terms of the act authorizing their construction and 
maintenance that they should be taxed. It was there said, 
by Chief Justice Shaw : — 

It is true, that the real and personal property, necessary to the estab- 
lishment and management of the railroad, is vested in the corporation; 
but it is in trust for the public. The company have not the general 
power of disposal, incident to the absolute right of property; they are 
obliged to use it in a particular manner, and for the accomplishment of a 
well-defined public object; they are required to render frequent accounts 
of their management of this property to the agents of the public. 

It is because railroads and railways are engaged in a public 
purpose which the pubhc might otherwise undertake itself that 
the State may delegate to them its power of eminent domain. 

Furthermore, it is not novel for the Commonwealth to 
own a railroad. Thus, on Sept. 4, 1862, the Commonwealth 
took possession of the Troy & Greenfield Railroad, about 
the same time acquired title to the Southern Vermont Rail- 
road by virtue of the provisions of St. 1862, c. 156, and com- 
pleted the Hoosac Tunnel and the Troy & Greenfield Railroad 
at a total expense of about $17,000,000, and opened them 
for use about June 30, 1876. 

In many instances the Legislature has granted aid to rail- 
road corporations from its own treasury, Kingman, petitioner, 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 323 

153 Mass. 566. It in many instances has authorized cities 
and towns to furnish aid to railroads by subscribing for stock 
in such railroads, and in other ways. Prince v. Crocker, 166 
Mass. 347, 361. 

I think it is equally plain that the Commonwealth can 
operate either a railroad or street railway. Granted that the 
State may construct and own a railroad or railway, it seems 
to follow, because of its character, that the State has the 
power to make it useful by providing for its operation. That 
the State can authorize a city to operate a street railway 
transportation system seems to have been assumed in Brown 
V. Turner, 176 Mass. 9, 14. See also the Minnesota Rate 
Cases, 230 U. S. 352, 416; Attorney-General v. Boston, 123 
Mass. 460. 

Convinced, as I am, that there is no constitutional objec- 
tion to the Commonwealth acquiring and operating a rail- 
road or street railway, it follows, in my judgment, that the 
Commonwealth may lease a railroad or street railway or take 
over the control of the same, with the consent of its owners, 
and pay compensation to the owners while it holds it by 
lease or the exercise of such control. The determination of 
the amount and terms of compensation to be paid and the 
details of the control and operation are matters for the Legis- 
lature alone to determine. The provision for the payment 
of dividends on the stock of the Boston Elevated Railway 
Company, in my judgment, is a provision for the payment 
of compensation in the nature of a rental. The stock is 
taken as a convenient measure of the rent. Pennsylvania 
Steel Co. V. New York City Ry. Co., 198 Fed. Rep. 721, 763. 
This is the ordinary and usual method of measuring rentals 
where a transportation company is leased. 

Therefore, in my opinion, the provisions of said act, so far 
as they relate to the taking of possession by the Common- 
wealth of the property of the Boston Elevated Railway Com- 
pany and the control of the same, and the payment of com- 
pensation for such use and control, upon the acceptance of the 
terms thereof by the corporations involved, are constitutional. 



324 OPINIONS OF THE ATTORNEY-GENERAL. 

This leaves but two other questions which, in my judg- 
ment, merit consideration: First, do the provisions of the 
act in any way impair the rights of any stockholders in either 
the Boston Elevated Railway Company or the West End 
Street Railway Company; and second, is the method adopted 
to meet any deficit occurring in the operation of the railway, 
and the assessment of such deficit upon the municipalities 
in which the Boston Elevated Railway system operates, 
constitutional? 

As to the first remaining question I think that the act is 
free from objection. In my judgment, there is no question 
but that the Legislature can authorize a street railway com- 
pany, upon the affirmative vote of a majority of its stock- 
holders, to lease its property and authorize its operation by 
others. The charters of all corporations are subject to amend- 
ment, alteration or repeal by the General Court. It is true 
that this power is limited by the provisions of our own and 
the Federal Constitution, that no person shall be deprived 
of his property without due process of law. So long, however, 
as the amendment or alteration is not open to this objection, 
such amendment or alteration is within the power of the 
General Court to enact. The statute in question is not open 
to this objection, as it makes adequate provision to protect 
and safeguard the interests of non-assenting stockholders by 
providing for a fair return upon their capital invested and 
the return of the property of the corporation at the end of 
the period of control in good operating condition. I do not 
think it could be successfully contended that a regulation of 
rates and fares by the Commonwealth of the Boston Elevated 
Railway System, which allowed a return upon the capital 
invested of from 5 to 6 per cent per annum, after due allow- 
ance for operating expenses, taxes, rentals, interest on in- 
debtedness and allowances for depreciation of property and 
for obsolescence and losses in respect to property, deprived 
the stockholders of property without due process of law. 
The act in question allows a return upon the capital invested 
of at least 5 to 6 per cent per annum. The non-assenting 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 325 

stockbolders are, therefore, under the operation of the act, 
in no worse situation than they would be under the general 
regulation of rates by the Public Service Commission, or a 
like body. 

Furthermore, it is to be borne in mind that at the time 
of the acceptance of the act the Boston Elevated Railway 
Company was restricted by its charter from establishing and 
taking a toll of fare which should exceed 5 cents for a single 
continuous passage in the same general direction. 

So far as the stockholders of the West End Street Railway 
Company are concerned, it is to be observed that the Com- 
monwealth takes possession of the property of the West End 
vStreet Railway Company subject to the terms of its lease 
to the Boston Elevated Railway Company. 

The extensions and additions that the trustees are au- 
thorized to make are such as the railway itself could under- 
take, if, indeed, such extensions and additions could not be 
required by the Legislature; and consequently a majority of 
its stockholders can authorize such extensions and additions 
by the public trustees. 

As to the method adopted to meet any deficit occurring 
in the operation of the railway and the assessment of the 
same upon the municipalities in which the Boston Elevated 
Railway System operates, this is defined in sections 11 and 
14 of the act. Section 11 provides for notice by the trustees 
to the Treasurer and Receiver-General of any deficit exist- 
ing as of the last day of June or the last day of December 
in any year, and it is therein provided that the Common- 
wealth shall thereupon pay over to the company the amount 
of such deficit. It further provides that in order to meet 
any payment required of the Commonwealth the Treasurer 
and Receiver-General may borrow, in anticipation of assess- 
ments to be levied upon the cities and towns, such sums as 
may be necessary to make such payments. It is also pro- 
vided that, in the event of a surplus in the reserve fund 
provided for in the act as of the last day of any June or 
December, the trustees shall apply the surplus, so far as 



326 OPINIONS OF THE ATTORNEY-GENERAL. 

necessary, to reimburse the Commonwealth for any amounts 
which it may have paid to the company under the provisions 
of said section. The amount of reimbursement thereon is 
to be distributed among the cities and towns contributing 
payments to meet the deficit. 

By section 14 it is provided that such deficit shall be as- 
sessed upon the cities and towns in which the company op- 
erates, by an addition to the State tax next thereafter assessed 
in the proportion therein set forth. 

I do not think there can be any question as to the consti- 
tutionality of section 11, which simply provides means for the 
Commonwealth meeting an obligation which it has undertaken. 

Any objection which may be raised in relation to section 
14, in my judgment, is answered by the case of Kingman, 
petitioner, 153 Mass. 566. In that case it was said, in relation 
to the construction and support of a public utility, that — 

The Legislature may properly determine that the whole or a part of the 
cost shall be borne by the Commonwealth, or it may impose it wholly 
upon counties, or wholly upon towns, or a part upon each. And in doing 
so it is not necessarily Hmited by county or town lines. . . . Absolute 
equality in the distribution of burdens of course is not to be hoped for. 
But with a view to the nearest approach to it that is possible, the Con- 
stitution wisely vests a large and general power in the Legislature. And 
if at any time it is found, either from a change of circumstances or other- 
wise, that the burden presses too hardly upon a particular town or county, 
the Legislature may change it. Nor does the fact that the money has 
been advanced in the first instance from the treasury of the Common- 
wealth prevent the Legislature from providing for a reimbursement from 
counties, cities, or towns. 

It is to be observed that if there is any constitutional 
difficulty in the method adopted of apportioning the burden 
of the cost of the operation of the railway system, it un- 
doubtedly is separable from the rest of the act. 

A further suggestion may be made that, in view of the 
fact that the charter of the Boston Elevated Railway Com- 
pany contained a condition that in the operation of its road 
it should not charge more than 5 cents for a single contin- 
uous passage in the same general direction, at least until the 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 327 

year 1922, the effect of the legislation is to grant a gratuity 
to the stockholders. This, in my judgment, cannot success- 
fully be contended, because, so far as I am aware, there is 
no way in which to compel a public service corporation to 
continue to operate its road when it is unable to pay its oper- 
ating expenses. Confronted with such a situation, there is 
no doubt that the General Court may make a new arrange- 
ment with the corporation for the continued operation of 
its road. Friend v. Gilbert, 108 Mass. 408; Ahhott v. Doane, 
163 Mass. 433. 

Accordingly, in my opinion, said chapter 159 of the Special 
Acts of the year 1918 is constitutional. 



Constitutional Law — Bakers — Hours of Employment. 

A law regulating the hours of employment of bakery workers which has no reason- i 
able relation to the public health, safety or morals is unconstitutional. 

You request my opinion upon the constitutionality of House To the Com- 
Bill No. 114, entitled "An Act to regulate the hours of em- iS'the^Thifd' 
ployment of bakery workers." ^""mf 



The first two sections of the act are as follows: — 

Section 1. Except in cases of emergency as hereinafter provided, it 
shall be unlawful to make or bake bread, rolls, buns, biscuits, cake, pastry 
and crackers and ill other bakery goods in any bakeshop, bakery, hotel, 
restaurant or club, between the hours of eight o'clock in the evening and 
four o'clock in the morning. 

Section 2. In cases of emergency where serious suffering, loss, dam- 
age, or pubUc inconvenience are threatened, the police commissioner of 
the city of Boston, or any member of the police department thereof 
having the rank not lower than captain and designated by said commis- 
sioner, or the chief of police of any other city or of any town upon such 
terms and conditions as he shall impose may issue a permit allowing the 
work prohibited in the preceding section to be done in the prohibited 
hours, but such permit shall be valid only during the twelve hours after 
the time it is issued. 

In the case of Lochner v. New York, 198 U. S. 45, it was 
held that a statute of New York limiting the hours of employ- 



February 



328 



OPINIONS OF THE ATTORNEY-GENERAL. 



ment in bakeries to not more than ten hours a day was un- 
constitutional, as "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." This decision was expressly recognized by our 
Supreme Judicial Court in the case of Commonwealth v. Boston 
& Maine R.R., 222 Mass. 206, as binding upon the Legislature 
and courts of this Commonwealth. 

It seems clear from these decisions that House Bill No. 114 
would be unconstitutional if enacted into law, unless the fact 
that the prohibition contained in this bill applies only to 
night work, and baking at night makes it distinguishable 
from these cases. If employment in the night time in a 
bakerj', or baking at night, has any reasonable relation to the 
public health, safety or morals, acts of this character might 
be sustained as valid police regulations. The question of 
whether the prohibition contained in this bill is appropriate to 
safeguard the public health or the health of individuals who 
are following the trade of a baker is largely a question of fact, 
in the first instance at least, to be determined by the Legis- 
lature itself. No evidence, however, has come to my attention 
which tends to show that this bill can be distinguished from 
the acts found to be unconstitutional in the cases cited, and, 
accordingly, I am constrained to advise that, in my opinion. 
House Bill No. 114 would be unconstitutional if enacted into 
law. 



To the 
Board of 
Registration 
in Medicine. 

1919 
February 20. 



Doctor — Use of Title — Degree. 

The mere use of the prefix "Dr." or "Doctor" by a person not in possession of a 
degree from an institution having the power to grant degrees is not a violation 
of R. L., c. 208, § 75. 

You request my opinion upon the following question: — 

Can the use of the prefix "Dr." or "Doctor " by a person not in pos- 
session of a degree conferred by a legally chartered college or other edu- 
cational institution having the power to grant degrees, be regarded as a 
violation of section 75 of chapter 208 of the Revised Laws? 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 329 

The word "doctor" comes from the Latin word doctor, 
meaning teacher, and this was derived from the Latin verb 
docere, meaning to teach. Consequently, the earliest English 
use of this word was synonymous with teacher. It later be- 
came the subject of degrees conferred by universities and 
colleges on men of great learning, such as doctors of divinity. 

Lexicographers define the word "doctor" to mean, in addition 
to physician, the following: — 

(1) A teacher; instructor; one who gives instruction in some branch 
of knowledge or inculcates an opinion of principals. (2) One who by 
reason of his skill in any branch of knowledge is competent to teach it or 
whose attainments entitle him to express an authoritative opinion; an 
eminently learned man. (New English Dictionary.) 

A teacher; an instructor; a learned man; one skilled in a learned pro- 
fession. (Century Dictionary.) 

A person of great learning and qualified to instruct; literally, a teacher. 
(Standard Dictionary.) 

According to the Encyclopedia Britannica the word comes 
from the Latin for teacher, and "though the word is commonly 
used as synonymous with physician, it was not until the 
fourteenth century that the doctor's degree began to be con- 
ferred in medicine." 

R. L., c. 208, § 75 (originally St. 1893, c. 355, § 1), is as 
follows : — 

Whoever, in a book, pamphlet, circular, advertisement or advertising 
sign, or by a pretended written certificate or diploma, or otherwise in 
writing, knowingly and falsely pretends to have been an officer or teacher, 
or to be a graduate or to hold any degree of a college or other educa- 
tional institution of this commonwealth or elsewhere, which is authorized 
to grant degrees, or of a public school of this commonwealth, and who- 
ever, withovit the authority of a special act of the general court granting 
the power to give degrees, offers or grants degrees as a school, college, or 
as a private individual, alone or associated with others, shall be punished 
by a fine of not more than one thousand dollars or bj' imprisonment for 
not more than one year, or by both such fine and imprisonment. 

During the next year St. 1894, c. 458, providing for the 
registration of physicians and surgeons, was passed. Sections 
10 and 11 of said chapter 458 were as follows: — 



330 OPINIONS OF THE ATTORNEY-GENERAL. 

Section 10. Wlioever not being registered as aforesaid shall adver- 
tise or hold himself out to the public as a physician or surgeon in this 
Commonwealth, by appending to his name the letters "M.D.," or using 
the title of doctor, meaning thereby a doctor of medicine, shall be pun- 
ished by a fine of not less than one hundred nor more than five hundred 
dollars for each offence, or by imprisonment in jail for three months, or 
both. 

Section 11. This act shall not apply to commissioned officers of the 
United States army, nav\^ or marine hospital service, or to a physician or 
surgeon who is called from another state to treat a particular case, and 
who does not otherwise practice in this state, or to prohibit gratuitous 
services; nor to clairvoyants, or to persons practising hypnotism, mag- 
netic healing, mind cure, massage methods, christian science, cosmo- 
pathic or any other method of healing: provided, such persons do not 
violate any of the provisions of section ten of this act. 

Thus, apparently, it was contemplated that persons other 
than persons holding the degree of doctor granted by a college 
authorized to confer such degree might use the prefix "doctor,'' 
provided they did not represent themselves as doctors of 
medicine. Applicants for registration as physicians were not 
required to have a degree of doctor of medicine or its equiv- 
alent from a legally chartered medical school having power 
to confer degrees, until the passage of Gen. St. 1915, c. 293. 
If it is intended by R. L., c. 208, § 75, that only a person 
who has a doctor's degree from a college authorized to confer 
such degree can use the title "doctor," obviously all persons 
registered as physicians and surgeons prior to the passage of 
Gen. St. 1915, c. 293, who have not received a degree of 
doctor from a college authorized to grant such a degree are 
not entitled to use the title "doctor." Certainly such a con- 
struction is not to be placed upon R. L., c. 208, § 75. 

Accordingly, I am of the opinion that merely the use of the 
prefix "Dr." or "Doctor" by a person not in possession of a 
degree from a college or other educational institution having 
the power to grant degrees is not a violation of R. L., c. 208, 
§75. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 331 



Constitutional Law — Public Buildings — Mercantile 
Purposes. 

A law providing for the erection of buildings by cities and towns to be used for both 
public and mercantile purposes is unconstitutional. 

You have requested mv opinion as to whether House Bill To the joint 

^ ^ x- Committee oi 

No. 30, if enacted, will be constitutional and valid. This bill p^'^JZef 

1919 
March 3. 



provides: — ^^'^ 

Section 1. Cities and towns may issue bonds, the proceeds of which 
shall be used to purchase land and build and erect thereon buildings 
to be used for public assemblage and for the use and occupation of men 
who were in the service of the country in the German war and the Span- 
ish-American war, including the use for social, educational and recreation 
purposes. 

Section 2. Such buildings shall be under the immediate control of 
trustees or directors, the appointment and number of which and the 
duties of the same to be prescribed by an ordinance or by-laws. 

Section 3. The city or town availing itself of the provisions of this 
act may erect and maintain in said buildings stores on the ground floor 
and devote the basement of said building or a proportional part thereof to 
mercantile or business purposes, and the trustees or directors may charge 
a reasonable rent for the occupation of the same. 

Section 4. All income derived in any manner from the use or occu- 
pation of said building shall be used for the purposes of maintaining said 
buildings, and in the maintenance account there shall be a reasonable 
amount set apart for up-keep and depreciation, and the balance, if any, 
shall be paid each year into the city treasury and be applied to the pay- 
ment of maturing bonds. Any deficiency required in order to meet the 
maintenance and depreciation charges shall be borne by the city or town 
by annual appropriation. 

Section 5. This act shall take effect upon its passage. 

The principal question raised by your inquiry is whether or 
not the provision that a city or town "may erect and main- 
tain in said buildings stores on the ground floor and devote 
the basement of said building or a proportional part thereof to 
mercantile or business purposes, and the trustees or directors 
may charge a reasonable rent for the occupation of the same" 
is constitutional. 

Money raised by taxation can be expended only for public 



332 OPINIONS OF THE ATTORNEY-GENERAL. 

purposes. The Legislature has no power to authorize the 
expenditure of money raised by bonds which ultimately must 
be paid, in part at least, through taxation, for other than 
public uses. In its last analysis any other principle is a tak- 
ing of private property for a private use, which is contrary 
to the fundamental conceptions of our form of government. 

It has been decided that once a municipality ha? erected 
buildings, built in good faith and used for municipal purposes, 
it has the right to allow such buildings, or parts thereof, to 
be used incidentally for other purposes, either gratuitously or 
for a compensation. French v. Quincy, 3 Allen, 9; Warden v. 
New Bedford, 131 Mass. 23. 

It is equally well settled that a municipality cannot enter 
into private business by erecting and maintaining a public 
building for gain. Wheelock v. Lowell, 196 Mass. 220; SjMuld- 
ing V. Lowell, 23 Pick. 71, 80; Opinion of the Justices, 182 
Mass. 605. 

The buildings contemplated under the proposed act are to 
be erected in part for mercantile purposes to aid in meeting 
the expense of the erection and maintenance of that part used 
for public purposes. This is not a case where a building is 
erected to be used in its entirety for public purposes and 
incidentally is to be let for private purposes when not required 
for the public purposes for which it is erected. In my opinion, 
the situation is the same as if on one lot two buildings were 
to be erected, one to be devoted to public purposes, the other 
to private purposes, the income derived from the one devoted 
to private purposes to be applied to meet in part the mainte- 
nance and cost of the building devoted to public purposes. 

In effect the proposition is to devote public funds in mer- 
cantile pursuits to enable the community better to sustain 
its public burdens, which, in my judgment, cannot be done. 

Accordingly, in my opinion, the bill in its present form 
would be unconstitutional if enacted. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 333 



Constitutional Law — Alien — Eligibility to Public 
Office. 

A law providing that an alien who claimed exemption from military service during 
the World War shall never be eligible to hold public office is unconstitutional. 

In reply to your inquiry as to whether the article of amend- mktee<Si™' 
ment contained in House Resolve No. 466 would be uncon- Amendment^' 
stitutional as conflicting with the provisions of the Federal March 3. 
Constitution, I submit the following. 

The proposed article of amendment is as follows: — 

No person wlio pleaded his alien status as an exemption from military 
service during the war against Germany shall ever be eligible to hold and 
enjoy any office of honor, trust or profit under the government of the 
commonwealth, or any coimty, city or town thereof. 

There is no doubt that a State may prescribe qualifications 
for the holding of office under its government. 

Mass. Const., c. I, § I, art. IV. 
Opinion of the Justices, 115 Mass. 602. 

Section 10 of Article I of the Constitution of the United 
States provides, in part, as follows: — 

No state shall . . . pass any bill of attainder, ex post facto law, or law 
impairing the obligation of contracts. . . . 

The question involved is whether the proposed amendment 
can be justified as establishing a qualification for office, or is 
in effect a punishment for an act already done. 

It was said by Mr. Justice Field, in Cummings v. The State 
of Missouri, 4 Wall. 277, 321, that — 

The theory upon which our pohtical institutions rest is that all men 
have certain inalienable rights — that among these are life, libertj^ and 
the pursuit of happiness; and that in the pursuit of happiness all avo- 
cations, all honors, all positions, are alike open to every one, and that in 
the protection of these rights all are equal before the law. Any depri- 
vation or suspension of any of these rights for past conduct is punish- 
ment, and can be in no otherwise defined. 



334 OPINIONS OF THE ATTORNEY-GENERAL. 

A provision for a qualification must have some reasonable 
relation to that purpose. Under the form of creating a quali- 
fication a State cannot evade the inhibition contained in the 
Federal Constitution. 

It seems to me obvious that the claiming of an exemption 
from military service by an alien has no such reasonable con- 
nection with his fitness for office, when he shall become a 
citizen, as to take such a provision out of the inhibition pre- 
scribed by the Federal Constitution. 

I am of the opinion, in view of the decision in Cummings 
V. The State of Missouri, already referred to, and the cases of 
Ex "parte Garland, 4 Wall. 333, and Pierce v. Carskaden, 16 
Wall. 234, that such an amendment to the Constitution must 
be viewed as inflicting a punishment upon such aliens who may 
hereafter become citizens of the United States for an act 
already done which was lawful when done. In Cummings v. 
The State of Missouri it was pointed out that "under this form 
of legislation the most flagrant invasion of private rights, in 
periods of excitement, may be enacted, and individuals, and even 
whole classes, may be deprived of political and civil rights." 

The principle decided in Cummings v. The State of Missouri 
and Ex parte Garland, supra, has been recognized by the 
Supreme Court of the United States as late as 1912. See 
Johannesen v. United States, 225 U. S. 227, at 242. 

Accordingly, in my opinion the proposed article of amend- 
ment, if adopted, would be in violation of the Constitution 
of the United States. 



Commissioner of Animal Industry — Orders and Regu- 
lations — Acts of Congress. 

Orders, regulations and requirements of the Commissioner of Animal Industry for 
permission to ship anti-hog cholera serum into this Commonwealth, in accord- 
ance with the provisions of R. L., c. 90, and St. 1912, c. 608, and amendments 
thereof, where Congress has prescribed and authorized rules and regulations 
in respect to interstate trade in such serums, cease to have any force and effect. 

.sione/o^ZiSiai You have requested my opinion on the question of whether 

inchMtry. ^^ ^^^^ ^j^^ ofdcrs and regulations relative to the distribution, 

-^^ ■ sale and use of anti-hog cholera virus or serum and the regu- 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 335 

lations for serum companies, promulgated by you in accordance 
with the provisions of R. L., c. 90, and St. 1912, c. 608, and 
acts in amendment thereof and addition thereto, are in conflict 
with the acts of Congress or with the authority of Congress 
to regulate interstate commerce. 

Under the provisions of our statutes, you have the power to 
make orders and regulations relative to the prevention, sup- 
pression and extirpation of contagious diseases among domestic 
animals, and those orders and regulations have to be approved 
by the Governor and Council. 

Under the provisions of the statutes cited, you made the 
following order on Oct. 28, 1914: — 

To all persons whom it may concern. 

Wliereas, the disease known as hog cholera, which is a contagious 
disease and is so recognized under the laws of this Commonwealth, pre- 
vails extensively among swine in this Commonwealth, and whereas it has 
become necessary to adopt measures for the prevention of the spread of 
said contagious disease; 

Now, therefore, actmg under and by virtue of the authority vested in 
me by the provisions of chapter 90 of the Revised Laws, and chapter 608 
of the Acts of 1912, and all acts and amendments thereof and in addition 
thereto, and all other authority me hereto enabling, I do hereby make 
the following order and regulation: — 

No person, firm or corporation shall distribute, sell or use in the Com- 
monwealth of Massachusetts virulent blood from hog-cholera-infected 
hogs, or "virus," or anti-hog cholera serum, unless written permission 
has been obtained from the Commissioner of Animal Industry for such 
distribution, sale or use, which written permission will be granted per- 
sons deemed proper by the Commissioner of Animal Industry. 

This order shall take effect upon its approval. 

This order shall be published by sending a copy to each inspector of 
animals in the Commonwealth, and by distribution to known breeders of 
swine, to commercial houses known to be dealing in the aforesaid com- 
modity, and to veterinarians registered under the laws of the Common- 
wealth. 

On Sept. 15, 1915, you made the following order: — 

To all persons whom it may concern. 

Whereas, the Department of Animal Industry is now actively engaged 
in the control and eradication of hog cholera, which is a contagious disease, 
and is so recognized under the laws of this Commonwealth ; 



336 OPINIONS OF THE ATTORNEY-GENERAL. 

And whereas, successful control of this disease has been accomplished 
only in those States which have regulated and restricted the sale, dis- 
tribution, possession and administration of various conmiercial products 
known as anti-hog cholera serum, and virulent blood or virus, which 
products, while designed to prevent or cure hog cholera, in the hands of 
untrained men tend to create and cause an epidemic of this disease; 

Now, therefore, acting under and by virtue of the authority vested in 
me by the provisions of chapter 90 of the Revised Laws, and chapter 608 
of the Acts of 1912, and all acts and amendments thereof and in addition 
thereto, and all other authority me hereto enabling, I do hereby make 
the following order and regulation : — 

No person, firm or corporation shall, directly or indirectly, administer 
or procure, or cause to be administered, or have in possession with intent 
to have administered, directly or indirectly, within the Commonwealth 
of Massachusetts, anti-hog cholera serum, virulent blood or virus, or any 
other preparation of a similar composition under whatever name, and 
administered in a similar way for the prevention and cure of hog cholera, 
unless written permission has been obtained from the Commissioner of 
Animal Industry for such administration or possession. 

This order shall take effect upon its approval. 

This order shall be published by sending a copy to each inspector of 
animals in the Commonwealth, and by distribution to known breeders of 
swine, to commercial houses known to be dealing in the aforesaid prod- 
ucts, and to veterinarians registered under the laws of the Common- 
wealth. 

You have also made the following regulations for the issuing 
of a permit to ship anti-hog cholera serum or hog cholera virus 
to be used within the Commonwealth: • — 

Section 1. A permit shall be obtained from the Commissioner of 
Animal Industry for each individual shipment of either anti-hog cholera 
serum or hog cholera virus to be used within the State of Massachusetts,. 
which permit shall be inoperative until the provisions mentioned in sec- 
tion 3 hereof have been complied with. 

Section 2. All anti-hog cholera serum and hog cholera virus to be 
used in Massachusetts, permit for the shipment of which has been granted, 
shall be shipped in care of the Department of Animal Industry to such 
place as the Commissioner shall designate. 

Section 3, Every person, firm or corporation which receives a per- 
mit to ship anti-hog cholera serum or hog cholera virus to be used in 
Massachusetts shall build, equip and maintain a building suitable for the 
purpose of testing these products, the plans and location for this building 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 337 

to be approved by the Commissioner of Animal Industry before the build- 
ings are constructed. 

Section 4. The entire expense of testing anti-hog cholera serum and 
hog cholera virus, and for storing the same before and after testing, shall 
be borne by the company submitting the same for test. 

Section 5. Every lot of anti-hog cholera serum shall be tested by a 
veterinarian registered in Massachusetts who shall be approved by the 
Commissioner of Animal Industry, and in a manner prescribed by said 
Commissioner. 

Section 6. If any anti-hog cholera serum fails to pass the prescribed 
test, the entire lot within the State of Massachusetts bearing the same 
serial number shall be sealed and returned to the company holding the 
permit, or shipped to any other address outside of the State of Massachu- 
setts furnished by said company; shipment in either case to be at the 
expense of said company. 

Section 7. Anti-hog cholera serum and hog cholera virus, after pass- 
ing tests approved by the Commissioner of Animal Industry, shall be 
held under conditions prescribed by him, and cannot leave the custody of 
the Department except for immediate use by its authorized agents. 

Section 8. If it becomes necessary, while virus is being tested, to use 
the same in order to prevent it reaching the date of expiration, and it is 
later found that this virus has not passed the required test, all such prod- 
uct anywhere in the State which bears the same serial number shall be 
condemned and destroyed. All animals upon which a portion of said 
virus has been used shall receive whatever treatment the Commissioner 
of Animal Industry deems necessary, the same to be done at the expense 
of the company producing said virus. 

Section 9. Copies of records of the physiological, bacteriological 
and microscopical tests to which anti-hog cholera serum and hog cholera 
virus have been subjected shall be furnished the Commissioner of Animal 
Industry with each shipment of these products, or as often as in his opin- 
ion may be necessary. 

Section 10. Any person, firm or corporation applying for a permit 
under above regulations must satisfy the Commissioner of Animal Indus- 
try that their products shipped to Massachusetts are not produced in a 
plant located within one-half mile of a public stockyard or within any 
district under quarantine by order of the Bureau of Animal Industry of 
the United States Department of Agriculture. 

Section 11. Each company which applies for a permit to ship anti- 
hog cholera serum or hog cholera virus to the Department of Animal 
Industry agrees to observe all present and future orders which the Com- 
missioner may consider to be necessary for the proper control of hog 
cholera in Massachusetts. 



338 OPINIONS OF THE ATTORNEY-GENERAL. 

The shipment of such serum from State to State is a branch 
of interstate commerce, and any specified rule or regulation in 
respect of such transportation, which Congress may lawfully 
prescribe or authorize and which may properly be deemed a 
regulation of such commerce, is paramount throughout the 
Union. So that when the entire subject of the shipment of 
such a serum from one State to another is taken under direct 
national supervision, and a system devised by which contami- 
nated and dangerous serum may be excluded from interstate 
commerce, all local or State regulations in respect of such 
matters and covering the same ground will cease to have any 
force, whether formally abrogated or not; and such rules and 
regulations as Congress may lawfully prescribe or authorize 
will alone control. Gibbons v. Ogden, 9 Wheat. 1, 210; Morgan 
V. Louisiana, 118 U. S. 455, 464; Hennington v. Georgia, 163 
U. S. 299, 317; N. Y., N. H. & H. R.R. Co. v. New York, 165 
U. S. 628, 631; Missouri, Kansas & Texas By. Co. v. Haber, 
169 U. S. 613, 626; Rasmussen v. Idaho, 181 U. S. 198, 200. 
The power which the States might thus exercise may in this 
way be suspended until national control is abandoned and the 
subject is thereby left under the police power of the States. 

It has been held that where Congress has not by any statute 
covered the whole subject of transportation of certain articles, 
a wide field is left for the exercise by the States of their powder, 
by appropriate regulations, to protect their domestic animals 
against contagious, infectious and communicable diseases. 
Reid V. Colorado, 187 U. S. 137; Rasmussen v. Idaho, supra; 
Adams v. Lytle, 154 Fed. 876; Kansas City Ry. Co. v. State, 
90 Ark. 343. But the difficulty in this case, in my opinion, 
is that Congress has prescribed and authorized rules and reg- 
ulations in respect to interstate trade in such serums which 
are paramount throughout the Union. 

Chapter 145 of the act of Congress of March 4, 1913, pro- 
vides, in part : — 

That from and after July first, nineteen hundred and thirteen, it shall 
be unlawful for any person, firm, or corporation to prepare, sell, barter, or 
exchange . . . , or to ship or dehver for shipment from one State ... to any 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 339 

other State . . . any worthless, contaminated, dangerous, or harmful virus, 
serum, toxin, or analogous product intended for use in the treatment of 
domestic animals, and no person, firm, or corporation shall prepare, sell, 
barter, exchange, or ship as aforesaid any virus, serum, toxin, or analogous 
product manufactured within the United States and intended for use in 
the treatment of domestic animals, unless and until the said virus, serum, 
toxin, or analogous product shall have been prepared, under and in com- 
pliance with regulations prescribed by the Secretary of Agriculture, at an 
establishment holding an unsuspended and unrevoked license issued by 
the Secretary of Agriculture as hereinafter authorized. . . . That the 
Secretary of Agriculture be, and hereby is, authorized to make and pro- 
mulgate from time to time such rules and regulations as may be necessary 
to prevent the preparation, sale, barter, exchange, or shipment as afore- 
said of any worthless, contaminated, dangerous, or harmful virus, serum, 
toxin, or analogous product for use in the treatment of domestic animals, 
and to issue, suspend, and revoke licenses for the maintenance of estab- 
lishments for the preparation of viruses, serums, toxins, and analogous 
products, for use in the treatment of domestic animals, intended for sale, 
barter, exchange or shipment as aforesaid. . . . All licenses issued under 
authority of this Act to establishments where such viruses, serums, 
toxins, or analogous products are prepared for sale, barter, exchange, or 
shipment as aforesaid, shall be issued on condition that the licensee shall 
permit the inspection of such establishments and of such products and 
their preparation; and the Secretary of Agriculture may suspend or 
revoke any permit or license issued vmder authority of this Act, after 
opportunity for hearing has been granted the licensee or importer, when 
the Secretary of Agriculture is satisfied that such license or permit is 
being used to facilitate or effect the preparation, sale, barter, exchange 
or shipment as aforesaid, ... of any worthless, contaminated, dangerous, 
or harmful virus, serum, toxin, or analogous product for use in the treat- 
ment of domestic animals. 

The act then goes on to provide that any officer of the De- 
partment of Agriculture may inspect any establishment licensed 
under this act at any hour during the daytime or night time, 
and that any person, firm or corporation violating any of the 
provisions of the act shall be punished by a fine not exceeding 
$1,000 or by imprisonment not exceeding one year, or by both 
such fine and imprisonment. 

In my judgment, the provisions of this act of Congress and 
the regulations of the Department of Agriculture made there- 
under cover the whole subject of the preparation, sale and 



340 OPINIONS OF THE ATTORNEY-GENERAL. 

shipment of the hog cholera serum in question. The entire 
subject has been taken under direct national supervision, and 
under the act and regulations worthless, contaminating, dan- 
gerous or harmful serums may be excluded from interstate 
commerce. This being the case, local and State regulations in 
respect of the matter cease to have any force, and the rules 
and regulations made in accordance with the act of Congress 
alone control. 

Accordingly, I am of the opinion that the orders and regula- 
tions and the requirements for permission to ship hog cholera 
serum into this Commonwealth made by you are in conflict 
with the act of Congress of March 4, 1913, and with the au- 
thority of Congress to regulate interstate commerce. 



Co-operative Banks — Matured Shares — Dues Capital. 

Matured shares of a co-operative bank held by it under the provisions of St. 1914, 
c. 646, § 6, are to be treated as "dues capital." 

SmmilfoMr ^^^ have rcqucstcd my opinion as to whether any portion 
M&T^hn ^^ matured shares continued in a co-operative bank, under the 

provisions of St. 1914, c. 643, § 6, is to be treated as "dues 
capital." "Dues capital" is referred to in St. 1912, c. 623, §§ 
35 and 36, having to do with the guaranty fund and the surplus 
account. 

By St. 1913, c. 264, a co-operative bank may "invest a sum 
not exceeding its surplus account in the purchase of a suitable 
site and the erection or preparation of a suitable building for 
the convenient transaction of its business, but in no case ex- 
ceeding two per cent of its dues capital." 

A co-operative bank holding a number of matured shares 
desires to purchase a bank building, and the question arises 
as to whether any part of the matured shares is to be con- 
sidered as "dues capital." 

Under the provisions of law relating to co-operative banks, 
capital has always been considered as consisting of (1) dues 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 341 

capital, — that part of the funds of the bank that has been 
paid in by members thereof as dues; and (2) profits capital, — 
that part consisting of interest which the bank has received 
from loans made by it from the savings of its members and 
from other minor sources of income. 

I see no reason why matured shares, which, by the provi- 
sions of St. 1914, c. 643, § 6, may be continued under certain 
conditions, should be considered as a new form of capital. I 
assume it is possible at any time to ascertain that portion of 
the matured shares which is made up of dues capital and that 
portion which is made up of profits capital. 

Obviously, the capital applicable to the matured share is the 
same the moment after the share matures as the moment be- 
fore, and thus it continues to be made up of part dues capital 
and part profits capital, and I think must continue to be 
treated as such unless the Legislature has expressed an inten- 
tion that it should be treated otherwise. 

It has been suggested that if any portion of the capital 
applicable to matured shares can be treated as dues capital the 
nature of co-operative banks is seriously changed, because of 
the provisions of law providing for the reservation of an 
amount of the profits as a guaranty fund until it amounts to 5 
per cent of the dues and profits capital. There is much force 
in this suggestion. However, I am of the opinion thdt it 
cannot be assumed that the Legislature, in passing the provi- 
sion authorizing continued matured shares, did not give this 
subject consideration. I find nothing in the act which indi- 
cates an intention upon the part of the Legislature that the 
capital applicable to matured shares should be treated other- 
wise than the other capital of the bank. 

Accordingly, I am of the opinion that your inquiry is to be 
answered in the affirmative. 



342 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the 

Armory Com- 
missioners. 



Property of the Commonwealth — Sidewalk Assessment. 

The Commonwealth is not liable for a sidewalk assessment levied by a town for a 
sidewalk constructed in front of an armory owned by the Commonwealth in 
that town. 

You ask my opinion on the following question : — 

I have a bill from the town of Stoneham, dated Dec. 28, 1914, for a 
sidewalk assessment, State armory, Main Street, $160.79. Will you 
kindly advise me if the Commonwealth is liable for such an assessment. 



St. 1909, c. 490, Pt. I, § 5, cl. 2, expressly provides that 
"the property of the commonwealth, except real estate of 
which the commonwealth is in possession under a mortgage 
for condition broken," shall be exempt from taxation. The 
words "the property of the commonwealth" mean the same 
as "all the property of the commonwealth," as decided in the 
case of Corcoran v. Boston, 185 Mass. 325. 

The property of the Commonwealth is exempt from taxation because, 
as the sovereign power, it receives the taxation through its officers or 
through the municipalities it creates, that it may from the means thus 
furnished, discharge the duties and pay the expenses of government. 
Its property constitutes one of the instrumentalities by which it per- 
forms its functions. As every tax would to a certain extent diminish its 
capacity and ability, we should be unwilling to hold that such propertj^ 
was subject to taxation in any form, unless it were made so by express 
enactment or by clear implication. 

Inhabitants of Worcester Counts/ v. Mayor and Aldermen of 
Worcester, 116 Mass. 193, 194. 



Accordingly, I am of the opinion that the Commonwealth 
is not liable for this assessment. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 343 



Commonwealth — Cities and Towns — Troy Weight. 

Under the provisions of R. L., c. 62, §§11 and 12, as amended, the Commonwealth 
is not obliged to furnish standard troy weights and measures to cities and 
towns. 

You have requested mv opinion as to whether or not it ^o the Com- 

, "^ ... . missioner of 

is incumbent upon this State to furnish cities and towns with standards. 
standard troy w-eights, or shall the town or city, upon desig- ^^ ^^ch 2 7. 
nation by this office, furnish these weights at their own expense? 
The original act in this connection was St. 1890, c. 426, 
which is as follows: — 

Section 1. The standard weights, measures and balances which 
shall be kept by the counties, cities and towns of the Commonwealth, 
except as hereinafter provided, shall be the following: . . . 

Section 2. In addition to the standards mentioned above, each 
shire town, and each city not a shire town, shall keep the metre and kilo- 
gram, and also such standard troy -weights as the treasurer and receiver- 
general maj^ designate. . . . 

Section 3. Any county, city or to^vn which has not received from 
the Commonwealth a complete set of the standard weights, measures 
and balances, as provided in section one, shall at once make application 
to the treasurer and receiver-general for the weights, measures and bal- 
ances which such county, city or town has not received, and the same 
shall be furnished to such county, city or town at the expense of the Com- 
monwealth. 



It will be noted that by section 3, above quoted, it was the 
intent of the statute that the Commonwealth should furnish 
to each county, city or town a set of the standard weights, 
measures and balances as provided in section 1, and that no 
provision is made for the furnishing by the Commonwealth 
of standard troy weights, mentioned in section 2. 

R. L., c. 62, § 11 (since amended by St. 1907, c. 534, § 3, 
and by St. 1909, c. 310), provided as follows: — 

The treasurer shall provide each county, city or town with a complete 
set of the standard weights, measures and balances named in the follow- 
ing section. 

R. L., c. 62, § 12 (since amended by St. 1909, c. 310), pro- 
vided: — 



344 OPINIONS OF THE ATTORNEY-GENERAL. 

Counties, cities and towns shall keep the following standard weights, 
measures and balances: . . . and each city and each shire town shall 
keep the meter and kilogram and such standard troy weights as the 
treasurer and receiver general may designate. . . . 

The commissioners, when revising the laws and statutes for 
the purpose of incorporating them in the Revised Laws, were 
given authority to omit enactments which were redundant. 
By virtue of this authority St. 1890, c. 426, § 2, was omitted 
as redundant, and the following was added to section 12 in 
place thereof: — 

Each city and each shire town shall keep the meter and kilogram and 
such standard troy weights as the treasurer and receiver general may desig- 
nate. 

It is apparent, therefore, that it was not intended that the 
meaning and purposes of St. 1890, c. 426, should be changed. 
It being clear that under sections 1, 2 and 3 of said chapter 
426 it was not incumbent upon the Commonwealth to furnish 
each city and town standard troy weights, it is my opinion 
that R. L., c. 62, §§11 and 12, as amended, do not make it 
incumbent upon the Commonwealth to furnish each city and 
town standard troy weights and measures. 



Insurance — Inducement not specified in Policy — Loans 
AND Insurance. 

A provision by an insurance company that the issuance of a policy should be 
dependent upon the policyholder making a loan, or the making of a loan 
dependent upon the borrower taking out a policy, is a violation of the provi- 
sions of St. 1907, c. 576, § 69. 

li^rnce I have considered your inquiry as to whether the method 

Commissioner, ^f ^j^^ conduct of busiucss by the Morris Plan Insurance 

Apnino. Society, if conducted in this Commonwealth as set forth in 

a brief submitted by its counsel, would constitute a violation 

of that part of section 69 of chapter 576 of the Acts of 1907 

which reads as follow^s: — 

... or give, sell or purchase or offer to give, sell or purchase as induce- 
ment to insurance or in connection therewith, any stocks, bonds or other 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 345 

securities of any insurance company or other corporation, association or 
partnership, or any dividends or profits accrued thereon, or anything of 
value whatsoever not specified in the poHcy. 

The words "or in connection therewith" are, I think, to be 
construed as meaning something in addition to inducement. 
It is not to be assumed that the Legislature makes use of idle 
words. It is my view that the words mean that as a part of 
the transaction of insuring there shall be no sale, gift or pur- 
chase of anything other than that set forth in the policy. I 
do not think that the section prohibits an insurance agent 
selhng stocks, bonds or securities or other like things at the 
same time he writes insurance, but the sale must not be con- 
nected in any way with the insurance; that is, they must be 
independent transactions. 

It is claimed by the Morris Plan Insurance Society that the 
provisions of the statute are not violated by requiring one who 
desires a loan to take out an insurance policy, nor by agree- 
ment made by a borrower to give his insurance exclusively to 
the lender, and that it has been so held in other jurisdictions. 
I do not concur in this view, and T am of the opinion that 
such transactions would be held in this Commonwealth to be 
in violation of said section. 

Your question therefore resolves itself to this: Does the 
lending of money and the taking of a note therefor, with in- 
dorsers, co-makers or sureties, involve a gift, sale or purchase 
of anything of value, within the terms of the statute; and if 
so, is the gift, sale or purchase in connection with insurance? 

The notes taken by the Morris Plan Insurance Society at 
the time the loans are made are more than mere evidences of 
the debt created by the loan, and I think the transactions con- 
stitute purchases of the notes. This being so, if the loans are 
made in connection with insurance there is a violation of the 
provisions of the statute. Furthermore, it may well be con- 
tended that the society gives a privilege of securing a loan. 
Whether there is a violation of the statute is largely a question 
of fact. If the insurance is in any way made dependent upon 
the policyholder making a loan, or if the loan is made de- 



346 OPINIONS OF THE ATTORNEY-GENERAL. 

pendent upon the borrower taking out a policy of insurance^ 
then, in my opinion, the transaction is in violation of the 
statute; otherwise, not. 

As to the suggestion made by the company that the terms 
of the statute will be complied with if the company indorses 
on each policy where a loan is made that such loan has been 
made, I do not concur in the suggestion. The statute provides 
that that which is given, sold or purchased of value shall be 
specified in the policy. It seems to me it contemplates that it 
shall be incorporated as one of the provisions of the policy, 
and applicable to each holder thereof in the class. 

Furthermore, I am of the opinion that there is a limit upon 
that which may be offered, sold or purchased in connection 
with the insurance transaction. I do not feel that our laws 
contemplate that in connection with the insurance business 
companies can carry on businesses foreign to insurance. St. 
1907, c. 576, § 26, specifically provides that domestic com- 
panies shall not engage in any other business than the business 
for which the insurance company is incorporated. 

Moreover, grave practical difficulties will arise if the pro- 
visions of the section are held to authorize insurance companies 
to specify and undertake obligations which are foreign to in- 
surance. The Commissioner passes upon the premiums, and 
it is difficult to see how he can pass intelligently upon the 
premium required if insurance companies are authorized to 
undertake any and all kinds of obligations, the cost of which 
it is impracticable to determine. 

Accordingly, I am of the opinion that the provisions of the 
statute will not be satisfied by such an indorsement. 

The form of policy submitted to me seems to indicate that 
the manner in w^hich the business is being transacted in other 
States by the Morris Plan Insurance Society is done in con- 
nection with the lending of money. The last condition on the 
second page of the policy is as follows: — 

Payment of Premiiam. — If the insured be indebted to the first bene- 
ficiary named in said schedule the insured agrees not to allow this policy 
to lapse for the non-payment of premiums. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 347 

Obviously, this is a condition required by the insurance com- 
pany, not for its own benefit but for the benefit of the loan 
company, which under the arrangement is named as the first 
beneficiary. If you should determine as a matter of fact that 
the lending of the money by the Morris Plan Insurance Society 
and the doing of the insurance business by the Morris Plan 
Insurance Society are to be conducted as separate and distinct 
businesses, although undertaken, for the most part, by an 
agent representing both, it is obvious that the last condition 
named on the second page should be eliminated from the 
policy. 



Supervisor of Plans — Regulations — Fireproof Con- 
struction. 

Under St. 1913, c. 655, § 15, the supervisor of plans may require fireproof construc- 
tion in the lower portions of apartment buildings of extreme height, so long as 
the requirement is made in good faith, is not discriminatory, and applies to all 
buildings of the same class thereafter to be constructed. 

You request my opinion as to whether the provision in St. w'toHcI' 
1913, c. 655, § 15, that the supervisor of plans may require MayV 
"that proper fire stops shall be provided in the floors, walls, 
partitions and stairways of such building," is sufficiently 
elastic to be so construed that the supervisor of plans may 
require fireproof construction in the lower portions of certain 
apartment buildings of extreme height, where he feels that 
extra precaution should be taken for the safety of the occu- 
pants thereof. 

It may be that this provision, standing alone, would not 
justify requiring fireproof construction in the lower portion 
of an apartment building of extreme height, but I think that, 
taken in connection with the sentence following, the supervisor 
of plans would be justified in making such a requirement. The 
sentence above referred to is as follows : — 

He may make such further requirements as may be necessary to pre- 
vent the spread of fire, or its communication from any steam boiler or 
heating apparatus therein. 



348 OPINIONS OF THE ATTORNEY-GENERAL. 

Said section 15 was originally enacted in 1888 as section 1 
of chapter 316 of the Acts of 1888, and as first enacted read, 
in part, as follows: — 

Such inspector may require that proper fire stops shall be provided in the 
floors, walls and partitions of such buildings and may make such further 
requirements as may be necessary or proper to prevent the spread of fire 
therein or its communication from any steam boiler or heating apparatus. 

The only changes made since that time in this provision are 
the elimination of the words "or proper," the elimination of 
the word "therein" after the word "fire" and the substitution 
of a comma therefor, and the addition of the word "therein" 
after the word "apparatus." The meaning of the provision 
has not been changed. 

It is to be borne in mind that section 15 is a provision to 
require buildings to be so constructed as to insure the safety 
of the occupants thereof in the event of fire, and the provision 
in the section that the inspector may make such further re- 
quirements as may be necessary to prevent the spread of fire 
therein, in my opinion, gives to the inspector authority to re- 
quire such provisions as he may deem reasonably necessary to 
prevent the spread of fire in the building. This necessarily in- 
volves the power to require walls, floors and partitions to be of 
such construction and such material as the inspector may deem 
necessary to prevent the spread of fire in the building. 

Accordingly, I am of the opinion that the inspector has the 
power to require such fireproof construction in the lower por- 
tions of apartment buildings of extreme height as may be 
necessary, in his judgment, to prevent the spread of fire in the 
buildings, so long as the requirements are made in good faith 
and are not discriminatory, and apply to all buildings of the 
same class and character thereafter to be constructed. The 
inspector's judgment in the first instance as to what is neces- 
sary is controlling, and I doubt if the requirements can be con- 
sidered unreasonable so long as they require no more than 
have been established by the Legislature as reasonable provi- 
sions in relation to buildings in the city of Boston of a like 
character to those enumerated in section 15. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 349 

Governor — Return of Bill to Legislature — Resub- 
mission. 

Under the provisions of Article LVI of the Amendments to the Constitution a bill 
returned to the General Court by the Governor with recommendations of 
amendment cannot be resubmitted to him without re-enactment by both 
branches of the General Court. 

You request my opinion upon the following questions : — To the 

Committee 

When, in accordance with the provisions of Article LVI of the Amend- °"iq^^'®®- 
ments to the Constitution, a bill is returned by the Governor with a May 12. 
recommendation that amendments specified by him be made therein, and 
the branch to which the bill has been returned fails to amend it, what 
procedure must follow in that branch, or in both branches, in order that 
the said bill may again be laid before the Governor for his approbation? 

If the branch to which the bill is so returned fails to amend it, can that 
branch thereupon proceed to re-enact the bill, and return it to the Gov- 
ernor, without first giving the co-ordinate branch opportunity to consider 
the bill with reference to any amendment to which it may be subject, 
under the provisions of said Article LVI? 

Article LVI of the Amendments to the Constitution reads as 
follows : — 

The governor, within five days after any bill or resolve shall have been 
laid before him, shall have the right to return it to the branch of the gen- 
eral court in which it originated with a recommendation that any amend- 
ment or amendments specified by him be made therein. Such bill or 
resolve shall thereupon be before the general court and subject to amend- 
ment and re-enactment. If such bill or resolve is re-enacted in any form 
it shall again be laid before the governor for his action, but he shall 
have no right to return the same a second time with a recommendation 
to amend. 

When a bill or resolve is returned under the provisions of 
this article to the branch of the General Court in which it 
originated, it is before the General Court and subject to 
amendment and re-enactment. If it is re-enacted in any form 
it shall again be laid before the Governor for his action. 

I am of the opinion that the General Court is not restricted 
to the amendments proposed by the Governor in amending a 
bill returned. The suggestions of the Governor may entail 
further amendments, or other amendments may better secure 



350 OPINIONS OF THE ATTORNEY-GENERAL. 

the purposes his suggested amendments are designed to accom- 
plish. That this was contemplated by the framers of the 
amendment seems plain from the third sentence of the amend- 
ment, which provides that if the "bill or resolve is re-enacted 
in any form it shall again be laid before the governor for his 
action." Furthermore, this provision of the article, in my 
judgment, requires re-enactment by both branches of the 
General Court of a bill returned. It is to be observed that 
there is no provision for again laying the bill before the Gov- 
ernor without re-enactment. It may be that one branch may 
be of the view that a bill as to which the Governor suggests an 
amendment should not be re-enacted without amendment. 
Mass. Const., Pt. II, c. I, § I, art. I, provides that each 
branch shall have a negative on the other. Thus, it would 
seem to follow that a bill returned may be amended in such 
manner as the General Court may determine, or may be re- 
jected; but before it can again be laid before the Governor for 
his action it must be re-enacted by the General Court, that is, 
by both branches thereof. 

Accordingly, I am of the opinion that the answer to your 
first question is that the bill must be re-enacted by both 
branches of the General Court in order that it may again be 
laid before the Governor. The order in which it may be re- 
enacted by the Senate and House is a matter to be determined 
by the General Court. 

Your second question is to be answered in the negative. 



State Board of Labor and Industries — Employment of 
Nurses — Factories and Shops. 

Under Gen. St. 1918, c. 110, the State Board of Labor and Industries has no 
authority to require persons, firms and corporations operating a factory or 
shop, in which machinery is used, to furnish a nurse or other person in atten- 
dance on its employees. 

JfVaboSn'd You request my opinion as to whether the provisions of 
Industries. (^^^ g^_ ^gjg^ ^ ^^q^ autliorizc your Board to make the 

■ following requirement contained in Bulletin No. 14 issued 

by your Board, viz: — 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 351 

Such room shall be placed under the charge of a qualified nurse or 
other person trained in and competent to administer first aid, who shall 
be employed on the premises and on call when necessary to administer 
first aid only, unless further advised by a phj^sician, and who shall keep a 
record of all cases of accident and sickness treated at the first-aid room, 
«uch records to be open to the inspection of the state board of labor and 
industries or its representatives. 

Said chapter 110 is an amendment of St. 1909, c. 514, § 104, 
as amended by St. 1914, c. 557, and by Gen. St. 1915, c. 216. 
The section as originally enacted is contained in St. 1907, 
c. 164, entitled "An Act to provide for the keeping of medical 
and surgical appliances in factories." As originally enacted it 
required every person, firm or corporation operating a factory 
or shop in which machinery was used for manufacturing pur- 
poses, and certain other purposes, at all times to keep and 
maintain, free of expense to the employees, such a medical and 
surgical chest as should be required by the local board of 
health of any city or town where such machinery was used. 
By St. 1914, c. 557, certain changes in the statute were made, 
one of which was the requiring of a medical or surgical chest, 
or both, as might be required by the State Board of Labor 
and Industries. This act was entitled "An Act relative to the 
providing of medical and surgical chests in factories and ma- 
chine shops." By Gen. St. 1915, c. 216, the act was further 
amended by providing as follows: — 

Every such person, firm or corporation, employing one hundred or 
more persons, shall, if so required by the state board of labor and indus- 
tries, provide accommodations, satisfactory to said board, for the treat- 
ment of persons injured or taken ill upon the premises. 

The title of the act was as follow^s: "An Act to require 
manufacturing establishments to provide rooms and equipment 
for the treatment of injured or sick employees." 

By Gen. St. 1918, c. 110, the act was further amended by 
providing that the persons, firms and corporations governed by 
the act should also provide "suitable and sanitary facilities for 
heating or warming food to be consumed by those employees 
of the factory or shop who so desire," the act being entitled 



352 OPINIONS OF THE ATTORNEY-GENERAL. 

"An Act to require certain manufacturing and mechanical 
establishments to provide for their employees facilities for 
heating or warming food." 

The specific question raised by your inquiry is this: Can 
the persons, firms and corporations coming within the pro- 
visions of the act be compelled, if required by the State Board 
of Labor and Industries, to provide a qualified nurse or other 
person trained in and competent to administer first aid in 
charge of the so-called first-aid room, who shall be employed 
on the premises and on call when necessary to administer first 
aid, and who shall keep a record of all cases of accident and 
sickness treated at the first-aid room? 

This depends upon the interpretation to be given the words 
"accommodations for the treatment of persons," as used in 
the act. 

It is to be borne in mind that the statute is a penaB 
statute, and therefore is to be construed strictly against the 
Commonwealth, and unless it is reasonably clear that the term 
"accommodations" includes a nurse or other person who per- 
forms the duties of a nurse, such a requirement cannot be made 
by your Board. 

It is to be noted that the accommodations which your 
Board may require are accommodations for the treatment of 
persons injured or taken ill upon the premises. You are not 
specifically authorized to require the treatment of persons in- 
jured or taken ill on the premises, or the furnishing of such 
treatment. Requirements by implication are not favored in 
criminal law. 

Such light as can be obtained from the title of Gen. St. 1915, 
c. 216, seems to negative the idea that your Board can require 
anything other than physical accommodations. That chapter 
is entitled "An Act to require manufacturing establishments 
to provide rooms and equipment for the treatment of injured 
or sick employees." While the word "equipment" may at 
times be used to include human beings, ordinarily it is used 
to signify supplies and apparatus for a special service. 

Accordingly, it is my opinion that persons, firms and cor- 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 353 

porations cannot be required, under the provisions of Gen. 
St. 1918, c. 110, to furnish a nurse or other person in attend- 
ance as required by said bulletin. 



Gas Companies — Net Maximum Rates — Gross Rates. 

A gas company may, after the lawful establishment of a net maximum rate, estab- 
lish a reasonable gross rate, in excess of such net rate, to be paid by all custom- 
ers who do not, prior to a specified date, pay the net rate. 

I have the honor to acknowledge the receipt of a copy of To the senate 
the following order passed by the Honorable Senate: — May 26 . 

Ordered, That the Senate request the opinion of the Attorney-General 
as to whether a gas company, as defined in section 1 of chapter 742 of the 
Acts of 1914, may lawfully, after the establishment by the Board of Gas 
and Electric Light Commissioners or otherwise of a net maximum rate to 
be charged by such company, establish a gross rate, in excess of said net 
rate, which shall be paid by all customers who do not, prior to a specified 
date, pay the net rate. 

I assume that the question presented by the order arises 
from a practice, which I am informed by the chairman of the 
Board of Gas and Electric Light Commissioners has prevailed 
for many years, of fixing in the orders of said Board, issued 
under the provisions of St. 1914, c. 742, § 162, a net price that 
may be charged by the company affected by the order. It is 
provided by said section 162 that upon the complaint in writ- 
ing of the mayor of a city or the selectmen of a town, or of 
twenty customers, either as to the quality or price of the gas 
or electricity sold and delivered, the Board, after a hearing, 
may order any reduction in the price of gas or electricity or 
an improvement in the quality thereof; and it is further pro- 
vided that the maximum price fixed by such order shall not 
thereafter be increased by the company except as provided in 
the following section. The following section (§ 163) provides 
for a revision of orders relative to the price and quality of 
gas or electricity made by the Board, upon application by 
the company. 



354 OPINIONS OF THE ATTORNEY-GENERAL. 

Apart from these two sections, and except in so far as by 
reason of the nature of the business the rates must be reason- 
able, there are no provisions of general law that restrict a 
gas or electric light company as to the charges it may make 
for the service it furnishes, or as to the regulations it may 
adopt to insure prompt payment in accordance with the 
terms upon which it sells gas or electricity. Thus, a gas or 
electric light company as to which no order has been made 
may increase the price of gas or electricity without regard to 
said sections. 

As I understand it, therefore, the question presented is 
this: Where a gas company has been charging a net price to 
those paying their bills promptly when due, and a larger price 
to those failing to pay when due, and the Board orders a re- 
duction in or a revision of the net price, does the action of 
the Board in fixing a net price prohibit the charging there- 
after of a gross price to the users of gas who do not pay the 
charges when due? 

Assuming that the Board is authorized to make such an 
order, which I deem it unnecessary to determine, as otherwise 
it would seem no order binding upon the company is made, I 
am of the opinion that in such a case the company may charge 
a gross rate. A long-continued practice, acquiesced in by the 
public, is not lightlj^ to be disturbed. But for the last sentence 
of section 162 there would be no doubt, as the only order 
made by the Board is in relation to the net price, leaving the 
company free to charge, as before, a gross price in excess of 
the net price to those not paying their bills promptly. The 
last sentence of the section provides that "the maximum price 
fixed by such order shall not thereafter be increased by said 
company except as provided in the following section." This 
provision originally appeared as a part of St. 1888, c. 350. 
The other provisions of that act are now contained in said 
section 163. The purpose of the provision seems to have been 
to insure that a price once fixed by an order of the Board 
should not thereafter be increased except as provided in said 
chapter 350. It is a reasonable view to take that it was not 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 355 

intended by this provision to interfere with the conduct of 
the business of a company other than as ordered by the Board. 
It is to be noted that apparently the provision has no applica- 
tion to an order made under the provisions of said section 163. 
The intent was to prohibit a company from increasing the 
price fixed by an order of the Board. When, by order, the 
Board deals solely with a net price, it contemplates that a 
gross price in excess will be charged, and impliedly author- 
izes such a charge. Obviously, the gross rate must be reason- 
able, and the difference between the gross and net rates must 
have relation to the expense to which the company is put by 
the failure of the users of gas to pay the net rate when due. 
Assuming, therefore, that the gross rate charged is a reason- 
able rate, the question of the Honorable Senate is to be an- 
swered in the affirmative. 



Street Railw^vy — Public Trustees — Limitation of Stock 
Issue. 

Undei^Spec. St. 1918, c. 188, § 4, the public trustees of the Eastern Massachusetts 
Street Railway Company are not restricted to the issuance of stocks, bonds 
and other evidences of indebtedness to the total amount mentioned therein as 
"the entire capitalization" plus or minus the adjustments to be made. 

You request my opinion as to what the amount of the capi- Tothe 
tal of the Eastern Massachusetts Street Railway Company iJfg''"'^' 

Mav 29. 

properly should be under the provisions of Spec. St. 1918, 

c. 188. Since receiving your communication I have ascertained 
from the trustees that what they really desire is my opinion 
as to whether the new company may, under the provisions 
of section 4 of the act, issue stock, bonds and other evidences 
of indebtedness to a total amount in excess of $40,282,340 
plus or minus such amount as shall be added thereto or de- 
ducted therefrom in accordance with the determination of 
the Public Service Commission, as provided in said section. 

Said chapter 188 provides for the purchase of the property 
and franchises of. the Bay State Street Railway Company by 



356 OPINIONS OF THE ATTORNEY-GENERAL. 

a new company to be organized as provided in the act. Sec- 
tion 1 of the act provides that "the new company, upon the 
acquisition of the railways, property and franchises of the 
company may, subject to the provisions of this act, exercise 
all the powers and privileges of a street railway company 
organized under general laws, so far as the same are applicable, 
. . . and shall be subject to all the duties, restrictions and 
liabilities imposed upon street railway companies, except as 
otherwise provided." Special provisions are made for the in- 
corporation of the new company. I think it obvious that in 
the organization of the company the general laws apply only 
to a limited extent; that is, in so far as they are not incon- 
sistent with the specific provisions of said act. 

The trustees appointed under. the provisions of the act are 
to co-operate with the holders of the shares and securities of 
the Bay State Street Railway Company, and with the re- 
ceiver operating the properties of said company, in arranging 
for the transfer of the railways, property and franchises of 
the Bay State Company to the new company. 

It is provided in section 4 that the new company, for the 
purpose of paying for the railways, property and franchises of 
the company, may issue stock, bonds and other evidences of 
indebtedness in such amounts and proportions, with such par 
values and preferences, as may be approved by the directors 
and by the trustees. 

Thus, it would seem that in the issuing of stock, bonds and 
other evidences of indebtedness for the purpose of paying for 
the property and franchises of the old company the provisions 
of general law have little if any application, and the determi- 
nation of the amounts and proportions of such stock, bonds 
and evidences of indebtedness are matters left entirely to the 
discretion of the directors and the trustees, subject only to 
the limitations thereafter prescribed. It is thereafter provided 
that — 

The entire capitalization of the new company, inchiding stock, bonds 
and other evidences of indebtedness which may be issued to pay for, or 
which shall remain outstanding in respect of, the railways and property 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 357 

owned, leased or operated by the company which were mckided in the 
computation of investment value contained in the decision of the public 
service commission, dated the thirty-first day of August, nineteen hun- 
dred and sixteen, shall not represent a capital bearing an annual interest 
and dividend charge (common dividends being computed at the rate of 
six per cent per annum) which will exceed six per cent upon the sum of 
forty million two hundred eighty-two thousand three hundred and forty 
dollars, etc. 

As I interpret the section, the words "the entire capital- 
ization" refer to the entire initial capitalization required to 
purchase the railways, property and franchises of the old 
company, and in the creation of this capitalization the com- 
pany is not restricted to the issuance of stock, bonds and 
other evidences of indebtedness to a total amount of $40,282,340 
plus or minus the adjustments to be made. I think it plain 
from the language of the section that such a limitation w^as 
not intended. 

Light is thrown upon the provisions of section 4 by a con- 
sideration of the other provisions of the act. The act pro- 
vides for what is known as a service at cost plan of operation, 
which in substance provides that the rates of fare shall not 
be in excess of those required to meet operating expenses and 
fixed charges and to pay 6 per cent per annum upon the com- 
mon stock. I assume that it was intended by the Legislature 
to give the directors and the trustees latitude in effecting the 
organization of the new company and the acquisition of the 
property of the old, restricting, however, the creation of an 
initial capital to such an extent that the public w411 not be 
required to pay by way of fares more than 6 per cent upon 
the investment value of the property acquired, as determined 
by the Public Service Commission, as provided in said section, 
and relying upon the requirement of the approval of the trus- 
tees appointed under the provisions of the act, within the 
limitation prescribed, to safeguard the public interests. In 
this connection it is to be borne in mind that at the time of 
the passage of the act the Bay State Street Railway Company 
was in the hands of a receiver, that it was in default in the 



358 OPINIONS OF THE ATTORNEY-GENERAL. 

payment of interest on its bonds and the property was subject 
to foreclosure under the mortgage securing the bonds, and 
that public service corporations were experiencing great diffi- 
culty in raising capital for their needs. That it was generally 
recognized that public service corporations were experiencing 
difficulty in raising capital is indicated by Spec. St. 1918, c. 
159, wherein the Boston Elevated Railway Company was 
authorized to issue preferred stock entitled to dividends at 
^ 7 per cent per annum, and by Spec. St. 1917, c. 366, which 
authorized the New York, New Haven & Hartford Railroad 
Company to issue preferred stock entitled to dividends at 
7 per cent per annum. 

Accordingly, I beg to advise you that I am of the opinion 
that so long as the initial capitalization created for the pur- 
pose of paying for the railways, property and franchises of 
the old company is not of such an amount and character as 
to subject the new company to the payment of interest and 
dividend charges (dividends on common stock computed at 
6 per cent per annum on the par value thereof) to an amount 
in excess of 6 per cent of the investment value of the property 
as found under the provisions of said section, and is approved 
by the directors and by the trustees, it is authorized by the 
act. 



Constitutional Law — Class Legislation — Delivery 
Vehicles. 

a law regulating the dimensions of motor vehicles, with their loads, operated upon 
the public highways, exempting vehicles owned by manufacturers or dealers in 
boxes or barrels, is unreasonable class legislation, denies equal protection of 
the laws, and is, therefore, unconstitutional. 

To^the Senate. J acknowledge the receipt of an order from the Honorable 
Senate in the following form : — 

Ordered, That the Senate request the opinion of the Attorney-General 
on the question whether exempting from the provisions of Senate Bill 
No. 547, entitled "An Act to regulate the dimensions of commercial 
vehicles and motor trucks and their trailers," so far as they restrict the 



1919 
June 2 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 359 

height of motor vehicles and their loads, deliver}^ vehicles owned by 
manufacturers and dealers in boxes or barrels, would render the bill 
unconstitutional. 

Section 1 of the proposed bill is as follows : — 

No commercial vehicle, motor truck, or motor-drawn vehicle shall be 
operated on any way in this commonwealth, as defined in section one of 
chapter five hundred and thirty-four of the acts of nineteen hundred and 
nine, and amendments thereof, the outside width of which is more than 
ninety-six inches, the height of which exceeds thirteen feet, or the extreme 
over-all length of which exceeds twenty-eight feet; except that such vehi- 
cle may be operated exceeding thirteen feet in height when a special per- 
mit so to operate is secured from the superintendent of streets, selectmen 
or local road authorities having charge of the repair and maintenance of 
highways in the several cities and towns: provided, however, that where 
more than one vehicle or trailer is operated the length of such vehicles 
may exceed twenty-eight feet, but in no event shall all such vehicles or 
trailers so drawn or operated exceed eighty feet in length, over all. All 
of the aforesaid dimensions shall be inclusive of the load. 

Section 2 provides for the granting of permits also by the 
Massachusetts Highway Commission and by the county com- 
missioners, and section 3 establishes a penalty for violation of 
the act. 

I am informed that an amendment has been proposed by 
which, if it is adopted, an additional section will be added to 
the bill as follows : — 

In so far as it restricts the height of motor vehicles and their loads, this 
act shall not apply to delivery vehicles owned by manufacturers or deal- 
ers in boxes or barrels. 

The order of the Senate appears to relate merely to the 
question whether this amendment will render the bill uncon- 
stitutional if enacted with the proposed amendment incor- 
porated therein. 

An exemption of special classes of persons from the burden 
of general police regulations always requires a clear explana- 
tion. It is fundamental that there can be no unreasonable or 
arbitrary distinctions in the application of such a statute. 



360 OPINIONS OF THE ATTORNEY-GENERAL. 

Either it must apply equally to all, or any classification which 
it attempts must be based upon some reasonable ground con- 
nected with the nature and purpose of the regulation or the 
general public interest. That a regulation may cause special 
inconvenience to persons in certain kinds of business is not 
alone a reasonable ground for exempting them. Such exemp- 
tions and distinctions must be based upon public interest, not 
upon private inconvenience. 

The purpose of the proposed bill appears to be merely to 
regulate and limit in the interest of public safety and con- 
venience the dimensions of motor vehicles, with their loads, 
which are operated upon the public highways. The bill ap- 
pears to have no relation to the weight of the vehicle or its 
load. Presumably manufacturers or dealers in boxes or barrels 
often have occasion in transporting empty boxes and barrels 
to carry loads of unusual height over the public highways, but 
so do manufacturers and dealers in other bulky articles of 
light weight. This bill, if enacted, will prove as inconvenient 
to all such manufacturers and dealers as to those especially 
exempted by the proposed amendment. Furthermore, this 
amendment completely exempts motor vehicles owned by the 
manufacturers and dealers specified, whether used in trans- 
porting boxes or barrels or any other articles or material. 
Then, others than manufacturers and dealers in boxes or 
barrels have occasion to transport them on motor vehicles. 
A motor truck and its load exceeding thirteen feet in height 
is precisely as great a danger or inconvenience to the public, 
whether operated by a person of the exempted class or by 
any other person. 

No sound distinction for the classification proposed by this 
amendment in any way related to the purpose of this bill or 
the general public interest has been suggested to me, and none 
occurs to me. I must advise you that the bill would, in my 
judgment, be unconstitutional if enacted with the proposed 
amendment incorporated therein, on the ground that in that 
form it would be unreasonable class legislation, and that it 
would deny to persons operating motor vehicles within the 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 361 

Commonwealth the equal protection of the laws, in violation 
of the Fourteenth Amendment to the Constitution of the 
United States. 



Towns — Joint Employment of Superintendent of 
Schools — Termination of Agreement. 

Where two towns continue to employ jointly a superintendent of schools after 
they are no longer required by law so to do, either town can terminate such 
arrangement whenever it sees fit. 

You ask my opinion as to whether the town of Wareham has to the 
the right to terminate the arrangement whereby the towns of of Ed^catton!^ 
Wareham and Marion jointly employ a superintendent of Ju"e 3 . 
schools. In 1900 these towns formed a union under the pro- 
visions of St. 1898, c. 466, and they have, until April, 1919, 
employed jointly a superintendent of schools. The school com- 
mittee of Wareham has since notified the school committee of 
Marion that the arrangement would no longer be continued. 
In 1910 the valuation of both these towns had exceeded 
$3,500,000, and under the then existing law the towns were no 
longer required to continue the union. They did, however, 
continue to employ a superintendent as before, through the 
agency of the joint school committee, although not in the 
manner provided in R. L., c. 42, § 42, which was by a com- 
mittee consisting of the chairman and secretary of the two 
committees. 

This arrangement was in effect when St. 1911, cc. 384 and 
399 were enacted. Chapter 384 provided that in towns operat- 
ing under the act relative to the forming of unions for the 
purpose of electing a superintendent of schools, said superin- 
tendent should be elected for a three-year term. Chapter 399 
provided that such unions could not be dissolved except by a 
vote of a majority of the towns constituting the union, and 
with the consent of the Board of Education. The towns in 
question did not choose the superintendent for three years, but 
continued to elect one from year to year. In other words, these 



362 OPINIONS OF THE ATTORNEY-GENERAL. 

towns, prior to the passage of the statutes of 1911, had out- 
grown the necessity for continuing the union estabHshed in 
1900, but were by common consent employing a superintendent 
through the instrumentalities previously created. 

Your question, therefore, really is whether St. 1911, c. 399, 
prohibits a dissolution of the original union unless there is a 
majority vote of the towns and the consent of the Board of 
Education is given. It is my opinion that the original union 
had been dissolved by operation of law before 1911, and that 
the continuation of a similar arrangement was a matter of con- 
venience and not of legal necessity. Had St. 1911, c. 399, been 
enacted previous to the time when the towns reached a valua- 
tion of $3,500,000, and when they were operating under the 
original statute, said chapter would have changed the situation 
entirely. Under the facts above stated, however, it is my 
opinion that the towns were no longer subject to the control 
of the then existing law, and that the statutes of 1911 did not 
revive the original union or curtail the rights of the towns if 
either saw fit to discontinue the convenient arrangement of 
choosing a joint superintendent. 



To the 
Senate. 

1919 
June 25. 



Constitutional Law — General Court — Delegation of 
Powers. 

The Legislature cannot delegate to cities and towns the powers granted to it by 
Article LX of the Amendments to the Constitution, limiting the use or con- 
struction of buildings to specified districts. 

I acknowledge the receipt of an order from the Honorable 
Senate in the following form: ■ — 

Ordered, That the Senate request the opinion of the Attorney-Gen- 
eral on the question whether Article LX of the Amendments to the Con- 
stitution empowers the General Court to authorize cities and towns to 
Hmit buildings according to their use and construction to specified dis- 
tricts thereof, and more especially whether House Bill No. 635 would 
be constitutional if enacted into law. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 363 

Article LX of the Amendments to the Constitution provides 
as follows : — 

The general court shall have power to limit buildings according to their 
use or construction to specified districts of cities and towns. 

House Bill No. 635 is entitled "An act to authorize cities 
and towns to limit buildings according to their use or con- 
struction." Its essential provision is as follows: — 

Section 1. A city or town may by ordinances or by-laws not in- 
consistent with law and applicable throughout the whole or any defined 
part of its territory limit buildings according to their use or construc- 
tion except such as are owned or occupied by the United States or by 
the commonwealth and may prescribe penalties not exceeding one hundred 
dollars for each violation of such ordinances or by-laws. 

The phraseology of this section seems somewhat incomplete, 
in that it does not clearly state the nature of the limitation 
which is to be imposed upon "buildings according to their use 
or construction." I assume that the purpose of the bill is 
merely to authorize cities and towns " to limit buildings accord- 
ing to their use or construction" to specified districts thereof. 

The bill of itself imposes no limitation whatever upon the 
use or construction of buildings in any specified district of any 
city or town. It in no way establishes any general principle to 
be applied in imposing limitations of this character. It is 
merely a complete delegation to each of the cities and towns 
within the Commonwealth of the entire power granted to the 
General Court by Article LX of the Amendments. Thus, the 
sole question presented by the order is whether such a delega- 
tion of legislative power is authorized by the Constitution of 
the Commonwealth. 

The principles of law applicable to the determination of such 
a question were clearly stated by the Supreme Judicial Court 
in Brodbine v. Revere, 182 Mass. 598, 600: — 

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. Opinion of the 
Justices, 160 Mass. 589; Larcum v. Olin, 160 Mass. 102; Stone v. Charles- 



364 OPINIONS OF THE ATTORNEY-GENERAL. 

toum, 114 Mass. 214; State v. Hmjes, 61 N. II. 264; Barto v. Himrod, 4 
Seld. 483; Gloversville v. Howell, 70 N. Y. 287; Locke's Appeal, 72 Penn. 
St. 491; State v. Morris County, 7 Vroom, 72; Harbor Commissioners v. 
Excelsior Redwood Co., 88 Cal. 491; People v. Hurlbut, 24 Mich. 44. This 
doctrine is held by the courts almost universally. 

There is a well-known exception to it, resting upon conditions existing 
from ancient tmies in most of the older States of the Union, wliich 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 peculiarly the interests of their own in- 
habitants. On this account the determination of matters of this kind has 
been held to be a proper exercise of local self-government which the Legis- 
lature may commit to a city or town. Commonwealth v. Bennett, 108 
Mass. 27; Stone v. Charlestotvn, 114 Mass. 214; Opinion of the Justices, 
160 Mass. 586, 589; People v. Albertson, 55 N. Y. 50; Gloversville v. 
Howell, 70 N. Y. 287; State v. Morris County, 7 Vroom, 72. 

In my judgment, the proposed bill does not deal merely 
with local police regulations or other matters affecting peculiarly 
the interests of the inhabitants of the various cities and towns 
of the Commonwealth. It rather purports to delegate the w^hole 
power and duty to determine what restrictions shall be placed 
upon the use and construction of buildings in specified districts 
without establishing any general policy whatever as to the 
purposes of such regulation or the standards to be applied in 
connection therewith. The legislation authorized by this 
amendment was obviously intended to be something more than 
police regulations in the interests of the public health, safety or 
morals. The amendment was entirely unnecessary to authorize 
such regulations. The determination of the question as to how 
far legislative power under this amendment can or should be 
exercised presents grave questions both of constitutional power, 
in view of the provisions of the Federal Constitution, and of 
legislative policy. Are certain kinds of business to be re- 
stricted to specified districts? Are manufacturing and mercan- 
tile buildings, and, perhaps, even apartment houses, to be 
excluded entirely from specified districts? Is the character or 
construction of buildings, even of those devoted merely to resi- 
dential purposes, to be regulated as to their height, size, loca- 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 365 

tion with reference to public highways or to other buildings or 
as to their artistic or architectural qualities? All these matters, 
so far as they are permissible matters of legislation under this 
amendment, are left by the proposed bill entirely to the deter- 
mination of cities and towns. Such general considerations of 
policy in a new field of legislation cannot, in my judgment, be 
said to be mere matters of local self-government. 

Of course, the acceptance or rejection of a general scheme 
of regulation may often be left to individual municipalities. 
This is merely leaving to the local community the determination 
of the question whether the conditions there existing make it 
desirable to put in force therein a definite regulation. Then, 
too, the fitting of the administrative details of such a regulation 
into the particular conditions of a given community may be 
left to local authorities or to general administrative boards. 
Doubtless much could be left to local determination in this 
manner in definite legislation enacted under this ameiidment, 
but this subject need not now be discussed, since nothing of 
that sort is attempted by the bill under consideration. 

Accordingly, in my opinion, the General Court cannot com- 
pletely delegate to cities and towns the powers granted to it by 
Article LX of the Amendments to the Constitution, and that 
House Bill No. 635 would be unconstitutional if enacted into 
law. 



Police Power — Applicability to State Institutions — 
Hours of Labor. 

Gen. St. 1919, c. 113, reducing the hours of labor of women and children, does not 
apply to the industrial department of the Reformatory for Women. 



To the 



You request my opinion as to whether Gen. St. 1919, c. 113, B^jgauof 
amending the law with reference to the hours of emplo^'ment ^""11°^^- 
for women and children, and reducing the period of such "^""^ ^^" 
employment to forty-eight hours a week, applies to the indus- 
trial department of the Reformatory for Women. 

The act in question appHes only to women and children 



366 OPINIONS OF THE ATTORNEY-GENERAL. 

"employed in laboring in any factory or workshop, or in any 
manufacturing, mercantile, mechanical establishment, telegraph 
office or telephone exchange, or by any express or transporta- 
tion company," 

Assuming that the matrons employed in the industrial depart- 
ment of this institution can be said to be "employed in labor- 
ing," within the meaning of the statute, I have grave doubts as 
to whether such an industrial department can be said to be 
a factory, workshop or manufacturing establishment within the 
meaning of this statute, or otherwise to come within its terms. 
Such a department is carrying on a part of the work of a 
penal or reformatory institution. Its primary purpose is not the 
employment of persons in the manufacture of goods. 

It is, however, a well-established principle that a police 
regulation of the general character of the statute under consid- 
eration is not to be construed as applying to activities con- 
ducted by the State unless it clearly appears from its terms 
that it was intended to be so applicable. I find no indication 
whatever in this statute that the General Court intended it to 
apply to any State institutions of any sort, least of all to State 
penal institutions. 

Accordingly, I construe this statute as not applicable to 
women employed at the Reformatory for Women. 



Nurses' Corps — State Benefits — World War. 

Under Gen. St. 1918, c. 92, members of the nurses' corps who saw active service 
in the World War are entitled to the benefits provided for by Gen. St. 1917, 
cc. 211 and 332. 

Treasurer and You havc askcd my opiuiou as to whether members of the 

General'" nurscs' corps. Organized in connection with the medical depart- 

Juni*28. ment of the army of the United States, who saw active service 

in the war with the German Empire, are entitled to the benefits 

of Gen. St. 1917, cc. 211 and 332, as interpreted and extended 

by Gen. St. 1918, c. 92. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 367 

The language of the two chapters first mentioned plainly 
cannot refer to women, and therefore the rights of these nurses 
must depend upon the statute of 1918. Section 1 of that 
statute provides that the two earlier statutes "shall be con- 
strued to apply to all persons, male or female, voluntarily en- 
listed in the military or naval service of the United States 
since the beginning of the present war with the German Empire 
as defined by said chapter three hundred and thirty-two, or 
drafted into the military forces under the provisions of the 
federal selective service act, whether a part of the quota of 
this commonwealth or not, provided that such persons, at the 
time of their entry into said service, were residents of this 
commonwealth." 

The terms of the Federal statutes and the practice of the 
War Department thereunder seem to make it clear that these 
nurses are not "enlisted" in the military service, in the ordi- 
nary technical sense of that term. They are appointed to their 
positions by the Secretary of War, and do not go through the 
formalities of an enlistment as do the enlisted men in the 
military service. 

It is apparent, however, that, by the use of the word "fe- 
male" in connection with persons in the military service, the 
General Court intended to extend the rights under these stat- 
utes to some persons who heretofore did not come within 
their terms. So far as I can perceive, there are no women in 
the military service, or to whom these words could possibly 
apply, except members of the nurses' corps. I am inclined to 
think, therefore, that the General Court intended by the use 
of these words to extend Gen. St. 1917, cc. 211 and 332, so as 
to include the members of the nurses' corps while in active 
service. I accordingly advise you that, in my opinion, the 
members of this corps while in such active service, if they other- 
wise come within the terms of these statutes, are entitled to 
their benefits. 



368 OPINIONS OF THE ATTORNEY-GENERAL. 



Highway Commissiox — Purchase of Land — Construc- 
tion OF Highway. 

The Massachusetts Highway Commission may purchase and take land in addition 
to that portion of the highway wrought for travel, when it is essential in order 
to insure the safety of persons traveling thereon. 

H*ighway You havc requested my opinion upon the following ques- 

Com mission. . 

1919 tion: — 

July 10. 

Chapter 213 of the Acts of 1916 directs the Massachusetts Highway 
Commission to construct and maintain a certain highway in the town 
of Hingham, and provides that the Commission is "authorized to pur- 
chase or take such land and buildings as may be deemed necessary in 
the laying out and construction of said highway." 

At one point where this highway intersects an existing highway a 
very dangerous condition exists, due to the obstruction of the view by 
two buildings on land of the Beale estate, and it seems to the Com- 
mission quite necessary that the land on which these buildings are located 
should be purchased or taken in order to get rid of the present buildings 
and insure that no buildings shall hereafter be erected on said land. 

The Commission desires to know if in your opinion it can purchase 
this land, which is outside of the portion that is necessary for travel. 

It is my view that your Commission is not restricted in the 
purchase and taking of land which is necessary for travel. 
Very often it is necessary to take land outside of the portion 
that is constructed, for the purpose of grading and draining, in 
order to make that portion of the road which is to be wrought 
for travel safe and convenient for travel. The width of the 
road at its intersection with other roads, within reasonable 
limits to insure the safety of travelers, is a matter properly 
within the discretion of the Commission. If, therefore, a situa- 
tion is presented wherein your Commission deems it necessary 
to purchase land in addition to that which is to be wrought for 
travel, in order to insure the safety of persons traveling on that 
portion of the highway that is wrought for travel, I am of the 
opinion that it can be purchased. Obviously, it must appear 
that the additional land is reasonably necessary for the conven- 
ience and safety of the use of the traveled portion of the road, 
in order to justify such action by your Commission. This, 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 369 

in the first instance, is largely a question of fact for the deter- 
mination of your Commission. Such* being the fact, I am of 
the opinion that you are authorized to purchase such land. 



Public Service Commission — Motor Vehicles — Rules 
AND Regulations — Cities and Towns. 

Under the provisions of Gen. St. 1918, c. 226, the Public Ser\'ice Commission, upon 
an appeal, is limited in its power relative to the operation of motor vehicles 
either to approving or disapproving the orders, rules and regulations adopted 
by local cities and towns. 

You request my opinion "as to whether Gen. St. 1918, c. Tothe 
226, which provides for an appeal to the Public Service Com- commission. 
mission from the orders, rules and regulations prescribed by the JuiyH. 
local authorities relative to the operation of jitneys, so called, 
limits the authority of the Commission to the approval or dis- 
approval of the orders, rules and regulations from which an 
appeal is taken, or whether it empowers the Commission, in 
case it disapproves such orders, rules and regulations, to pre- 
scribe by order the just and reasonable rules and regulations 
thereafter to be in force, and, specifically, as to whether and in 
what respect, if any, the Commission exceeded its lawful au- 
thority in issuing its order of April 3, 1919 (P. S. C. 2151), 
relative to regulations governing the operation of jitneys in the 
cities of Lawrence, Haverhill, Maiden, Lynn, Salem and Brock- 
ton, and the towns of Swampscott and Nahant." 

Your question involves an interpretation of section 2 of the 
act. Said section provides, in part, as follows:- — 

Every person, firm or corporation, including street railway companies, 
operating any such motor vehicle upon any public street or way for the 
carriage of passengers for hire in such a manner as to afford a means of 
transportation similar to that afforded by a street railway, by indis- 
criminately receiving and discharging passengers along the route on which 
the vehicle is operated or may be running, is hereby declared to be a 
common carrier, and shall in respect to the operation of such vehicle be 
subject to such orders, rules and regulations as have been or may from 
time to time be prescribed or adopted by the licensing authorities of any 



370 OPINIONS OF THE ATTORNEY-GENE'RAL. 

city or town which has accepted the provisions of chapter two hundred 
and ninety-three of the Genqj-al Acts of nineteen hundred and sixteen. 

So far the section is little more than a re-enactment of the 
provisions of Gen. St. 1916, c. 293, as under that act cities and 
towns could make orders, rules and regulations, and the opera- 
tion of motor vehicles was subject thereto. The section then 
provides that — 

Any petitioner, or any street railway company aggrieved by such 
orders, rules or regulations, may appeal to the public service commission 
whose decision, after notice to said licensing authorities and a hearing 
thereon if requested by such authorities, shall be final. Such appeal may 
be taken within thirty days from the time such orders, rules or regulations 
become effective or in case the same have already become effective, within 
thirty days after the passage of this act. 

I assume that the petitioner referred to in this provision 
refers to some person who is operating a motor vehicle or de- 
sires to operate a motor vehicle. It is difficult to see how any 
other petitioner would be aggrieved by any orders, rules or 
regulations made under the provisions of Gen. St. 1916, c. 293, 
and I doubt the intention of the Legislature to give any mem- 
ber of the public who is affected by the rules and regulations 
only to the extent that all members of the public are affected a 
right to appeal to the Public Service Commission. This, it 
seems to me, throws light upon the meaning of the section. 
Neither a petitioner nor a street railway company can be said 
to be aggrieved unless the rules and regulations adopted appear 
to be unreasonable and to unduly restrict their power to oper- 
ate motor vehicles. This being so, it would seem to follow 
that the cause of their grievance is eliminated by the action of 
the Public Service Commission in disapproving the rules, or so 
much thereof as appears to the Public Service Commission to 
be unreasonable. Certainly, up to the time of the passage of 
this act it could not be said that street railway companies 
were aggrieved by the adoption of rules regulating the operation 
of motor vehicles. They had no peculiar rights under the law 
to be protected against competition, and there is nothing in the 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 371 

present statute to indicate that the Legislature intended to 
adopt another policy, unless it is derived by implication from 
the provisions of section 3. On the other hand, there is no 
provision for an appeal by a street railway company because 
of the failure of a municipality which has accepted the pro- 
visions of Gen. St. 1916, c. 293, to adopt rules and regulations. 
The purpose of the appeal, it seems to me, is to correct the 
alleged grievance. It is a grievance that is the foundation 
for the action of the Public Service Commission. The griev- 
ance is not corrected by allowing the rule or regulation appealed 
from to stand and adding additional rules and regulations to it. 

The section provides that persons operating motor vehicles 
shall be subject to such orders, rules and regulations as may 
from time to time be adopted by the licensing authorities of the 
city or town. This is inconsistent with the view that the 
Public Service Commission has the power to originate and 
make rules and regulations upon appeal, in addition to those 
already adopted by the city or town, and finally to dispose of 
the whole matter. 

Nor do I think that the declaration in the section, that the 
persons operating such motor vehicles are common carriers, 
adds much to the section, as, obviously, persons operating such 
vehicles are common carriers. I do not think it can soundly 
be contended, merely from this declaration, that the Public 
Service Commission was given jurisdiction of such vehicles 
under the provisions of St. 1913, c. 784. That chapter relates 
to common carriers of persons or property by railroads, street 
railways, electric railroads and steamships. It is true that 
clause b of section 2 provides that the Commission shall have 
general supervision and regulation of the operation of all con- 
veniences, appliances, facilities or equipment utilized in connec- 
tion with or appertaining to the transportation or carriage of 
persons or property by railroads, street railways, electric rail- 
roads and steamships, by whomsoever owned or by whomsoever 
provided, whether the service be common carriage or merely in 
facilitation of common carriage. 

But for the provisions of section 2 of said chapter 226 it may 



372 OPINIONS OF THE ATTORNEY-GENERAL. 

be that it could be contended with some force that street rail- 
way companies using motor vehicles for the purpose of facilita- 
tion of common carriage by street railways were subject to the 
regulations of the Public Service Commission, under the pro- 
visions of said chapter 784, as to the operation of such motor 
vehicles. Doubtless in some respects street railways in the 
operation of motor vehicles are subject to the control of the 
Public Service Commission. However, it is going to great 
length to say that the operation of a motor bus in no way 
connected W'ith the street railway company is a convenience, 
appliance, facility or equipment utilized in connection with or 
appertaining to the transportation or carriage of- persons or 
property by street railways or in facilitation of such trans- 
portation or carriage. 

Section 3 of said chapter 226 provides: — 

In cities or towns that have not accepted the provisions of said chapter 
two hundred and ninety-three wherein a street railway exists, and wherein 
a Hne of motor vehicles has been estabUshed under the provisions of section 
one of this act, the pubUc service commission shall have original juris- 
diction over persons, firms or corporations mentioned in section two, and 
may prescribe rules and regulations until the city or town accepts the 
provisions of said chapter two hundred and ninety-three, whereupon 
original jurisdiction shall vest in the city or town, subject to appeal to the 
public service commission as provided in section two. 

I take it that this section gives to the Public Service Com- 
mission the power to establish rules and regulations in relation 
to automobiles, motor vehicles and the operation of motor 
vehicles in cities and towns that have not accepted the provi- 
sions of said chapter 293, wherein a street railway exists, or 
wherein a line of motor vehicles has been established under the 
provisions of section 1 of the act. Some argument might 
possibly be advanced under this section that by implication the 
power is given to the Public Service Commission, on appeal, 
under the provisions of section 2, to prescribe rules and regula- 
tions in addition to those adopted by the local community. 
The use of the words "original jurisdiction," it may be said, 
indicates that on appeal it has the same power that it has 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 373 

when exercising original jurisdiction under the provisions of 
section 3, and that it has the right to pass rules and regulations 
in any community where a street railway exists, whether a line 
of motor vehicles has been established or not, or whether the 
street railway is operating a line of motor vehicles in the com- 
munity; and consequently, it follows that the Legislature was 
of the opinion that a street railway might be aggrieved by the 
operation of a line of motor busses in a community where it 
operated a street railway, although it did not operate a line 
itself. On the other hand, under section 3 the Public Service 
Commission has no jurisdiction whatever over motor vehicles 
operated by others than street railway companies in a com- 
munity where no street railway exists, as the application of 
section 3 is limited to towns wherein a street railway exists and 
towns wherein a line of motor vehicles has been established 
under the provisions of section 1, which relates entirely to 
street railway companies. Thus the original jurisdiction of the 
Public Service Commission is limited in its extent, and does 
not embrace all communities which have not accepted the pro- 
visions of said chapter 293. Furthermore, it is given original 
jurisdiction over the persons, firms and corporations mentioned 
in section 2. The section does not use the words "original ju- 
risdiction" in connection with its power to prescribe rules and 
regulations. 

However, in my judgment, whatever force the provisions of 
section 3 may have in supporting the A'iew that the Commis- 
sion, on appeal, may add to the regulations adopted by the 
city or town is controlled by the provisions of section 2 and the 
conclusions to be drawn from its provisions. 

The provision in section 2, that all orders, rules or regulations 
made, established or prescribed hereunder shall be enforced 
in the manner provided in St. 1913, c. 784, § 28, is of no assist- 
ance in determining the question involved. If the provision 
is restricted to such rules and regulations as are affirmed, on 
appeal, by the Public Service Commission, then it leaves those 
as to which no appeal is taken to be enforced as provided in 
Gen. St. 1916, c. 293. If it applies to all rules and regulations 



374 OPINIONS OF THE ATTORNEY-GENERAL. 

referred to in the section, then it necessarily relates to rules and 
regulations which may never come before the Public Service 
Commission for action. 

Accordingly, I am of the opinion that it was not the inten- 
tion to interfere with the power of the local communities 
accepting the provisions of said chapter 293 to regulate in such 
manner as they may determine the operation of motor vehicles 
coming within the provisions of the act, provided such regula- 
tions are not found to be unreasonable by the Public Service 
Commission upon appeal; and that your Commission is limited 
to either approving or disapproving the orders, rules and regu- 
lations adopted by such communities. 



Board of Registration ix Pharal^.cy — Certificate of 
Fitness — War Prohibition. 

The Board of Registration in Pharmacy may, after the war prohibition act becomes 
effective, continue to grant certificates of fitness authorizing the sale of intoxi- 
cating liquors on prescriptions of registered physicians. 

iCa^rd^f My opinion is requested upon the following question : — 

Registration 

in^Pharmacy. jj^^ ^^^^ g^^^.^ ^j^^ ^^^^^^ ^^ j^^^^^ ^ Certificate of fitness (St. 1913, c. 

juiyH. ^12^ ^Q druggists in cities and to^\Tis which voted to grant the first five 

classes of licenses, which licenses were rendered ineffective on July 1 by 

war prohibition? 

St. 1913, c. 413, provides: — 

In any city or town in which licenses for the sale of intoxicating liquors 
of the first five classes are not granted, registered pharmacists to whom a 
certificate of fitness has been issued as provided for by section two of this 
act, may sell pure alcohol for medicinal, mechanical or chemical purposes 
without a physician's prescription, such sales to be recorded in the manner 
provided for in section twenty-six of chapter one hundred of the Revised 
Laws, and may sell intoxicating liquors upon the prescription of a regis- 
tered physician practising in such city or town, provided that the pre- 
scription is dated, contains the name of the person prescribed for, and is 
signed by the physician. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 375 

I am of the opinion that your Board may continue to grant 
such certificates of fitness, and that such certificates will au- 
thorize the sale of intoxicating liquors upon the prescription of 
a registered physician to the extent authorized by said chapter 
413, provided such sale does not violate the provisions of the 
Federal statutes. 



Unlawful Combination — Fixing of AYages by Minimum 
Price Scale. 

Agreements between employer and employee to establish minimum prices as a 
means of fixing wages are unlawful. 

I am in receipt of a copy of an order adopted by the Honor- To the 
able Senate, as follows: — \m' 

July 16. 

Ordered, That the Senate request the opinion of the Attorney-Gen- 
eral on the following question of law: — 

Would it be contrary to the laws of the United States or of this Com- 
monwealth for a combination of fishermen to enter into an agreement with 
dealers purchasing their product fixing minimum prices for such product 
as a method of fixing the wages of such fishermen? 

The order does not state to whom the product upon which 
the price is to be fixed belongs, but apparently it is assumed 
to belong to the fishermen. Upon this assumption it is not 
possible for me to give an opinion, for the reason that the 
answer would depend upon facts which are not stated; for 
example, whether the purpose of the combination of fishermen 
and dealers is to advance the price of fish, or whether the 
combination would be of such size as to give substantial price- 
making power. 

I apprehend, however, that the purpose of the Honorable 
Senate in passing the order was to obtain an opinion which 
w^ould be applicable to the situation in the fish industry in this 
Commonwealth, and therefore submit the following answer. 

It is my understanding that the fishermen employed on 
vessels landing fish at Boston and other points in this Common- 
wealth are in general paid an amount equal to a certain pro- 



376 OPINIONS OF THE ATTORNEY-GENERAL. 

portionate part of the proceeds of the cargo, the proportion 
varying from 7/1000 in the case of a fisherman on a steam 
trawler to a much larger percentage in the case of fishermen 
employed on sailing vessels, the variation being due principally 
to the fact that the trawler fishermen receive a definite salary 
in addition to their share in the proceeds. 

As a general rule, the fish caught do not belong to the 
fishermen. While the pay received by the fisherman depends, 
at least in part, upon the value of the cargo, he cannot be con- 
sidered the owner of such cargo, but still remains an employee. 
Baiier \. Rodman, 3 Pick. 435; Cambra v. Santos, 233 ^Nlass. 
131. 

In this situation it is difficult to see how the fishermen may, 
by arrangement with dealers to whom the fish may be sold, 
fix a minimum price thereon, when, as above pointed out, the 
fish is not owned by them. 

It is too well recognized to require the citation of authorities 
that employees have a right, both under the laws of this 
Commonwealth and of the United States, to combine and 
contract with their employer as to what wages they shall 
receive. 

This right on the part of the employees, however, does not 
include the right to dictate to their employer as to the manner 
and terms upon which the product of the employees' labor shall 
be sold, and a combination to eflfect this, in my judgment, 
would be an unlawful combination. While it is true that com- 
binations of workmen by collectively bargaining as to the wages 
they shall receive necessarily affect the price of the product of 
their labor, this is an incident necessarily flowing from the 
exercise of this right. When, however, a combination of work- 
men, under the guise of collective bargaining as to wages, at- 
tempts to fix the price at which the product of their labor shall 
be sold by their employer, they exceed their lawful rights, and 
the combination becomes unlawful. And I think it is equally 
plain that it is unlawful for such a combination to enter into 
agreements with the purchasers of the product, by which it is 
agreed that the product shall be bought only on certain terms. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 377 

I do not mean to intimate that I am of the opinion that 
an agreement may not legally be effected between the fishermen 
and their employer, by which the wages to be paid are fixed 
upon the basis that the fish caught is of a certain minimum 
value. 

Assuming, therefore, that the facts are as I understand them, 
your question is to be answered in the affirmative. 



Governor. 
1919 
uly 19. 



Recess Committee — Appropriation for Services. 

The Legislature may lawfully appropriate money to pay members of a recess com- 
mittee appointed to consider the work being done by a commission to revise 
the laws of the Commonwealth. 

You request my opinion as to whether or not you can sign an To the 
appropriation bill providing money for the payment of the i9i9 
members of a proposed recess committee to consider the work ■ 
being done by the commission to revise the laws of the Com- 
monwealth. 

I assume that the appropriation arises by reason of the 
passage of chapter 11 of the Resolves of the present year, 
which extends to Oct. 15, 1919, the time within which the Com- 
missioners for Consolidating and Arranging the General Laws 
of the Commonwealth, under authority of chapter 43 of the 
Resolves of 1916, are required to make their final report to the 
General Court. 

The resolve provides that the commissioners shall complete 
the said consolidation and arrangement and present their final 
report in print on or before Oct. 15, 1919, and file the same 
with the clerk of the Senate. 

Article LXV of the Amendments to the Constitution pro- 
vides as follows: — 

No person elected to the general court shall during the term for which 
he was elected be appointed to any office created or the emoluments whereof 
are increased during such term, nor receive additional salary or compen- 
sation for service upon any recess committee or commission except a 
committee appointed to examine a general revision of the statutes of the 
commonwealth when submitted to the general court for adoption. 



378 OPINIONS OF THE ATTORNEY-GENERAL. 

The sole question involved, therefore, is what is meant by the 
words "when submitted to the General Court for adoption," 
as used in said amendment. 

I am of the opinion that a reasonable construction should be 
given to these words, and that, accordingly, they are to be 
construed as including a report made to the clerk of the Senate 
by direction of the General Court, under an order which ex- 
tends the time of the filing of the report of the commissioners 
with the General Court, and provides for the filing of said 
report with the clerk of the Senate. 

Considering the filing with the clerk of the Senate under the 
provisions of the order as a submission to the General Court, 
it is clear that the amendment does not prohibit the payment 
of members of a committee appointed to examine the revision 
of the statutes, after the report is so submitted, for services 
performed after it is submitted. 

In any event, in so far as the appropriation is concerned I 
am of the opinion that you may properly approve it, as it is 
made simply in anticipation of the receipt of the report by the 
General Court, and no question will arise until it is proposed 
to expend money under authority of the appropriation. If the 
report then is before the General Court the expenditure will be 
lawful. 



CoMivnssiON ON Waterways and Public Lands — Great 
Pond — Islands — Title. 

Any pond of more than 10 acres is a great pond unless there was a grant of such 
pond prior to the enactment of the Colonial Ordinances. Title in it and to the 
islands therein is in the Commonwealth. 

The Commission on Waterways and Public Land has authority to convey or lease 
islands in a great pond. 

Commission on You rcqucst my opinion as to Avhether or not Swan Pond, 

Pub!™nd?.'' in the town of Dennis, is a great pond belonging to the Com- 

Juiy2i. monwealth, and whether or not your Commission has authority, 

under St. 1904, c. 379, or any other provision of law, to sell and 

convey or lease two islands located in the northerly part of the 

pond. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 379> 

Your question really divides itself into three parts: first, 
whether or not Swan Pond is a great pond belonging to the 
Commonwealth; second, whether or not the islands located in 
the pond belong to the Commonwealth; and third, whether or 
not your Commission has authority to sell and convey or lease 
the islands in the pond. 

In the memorandum submitted by you in your letter you 
state that — 

Swan Pond is a body of water situated in the town of Dennis and 
has an area of about 157 acres. There are two islands in the northerly 
part of the pond, and there are no buildings on either island. 

Unless there was a grant of Swan Pond prior to the enact- 
ment of the Colonial Ordinances of 1641-47, the title is in the 
Commonwealth. 

The Colonial Ordinances contain the following provision: — 

Providing that no town shall appropriate to any particular person any 
great pond containing more than ten acres. 

It is clear, therefore, that any pond of more than 10 acres is 
a great pond, and is owned by the State. Attorney-General v. 
Herrick, 190 Mass. 307; II Op. Atty.-Gen., 307; Auburn v. 
Union Water Power Co., 9 Me. 376. 

So far as I am aware, there was no grant of Swan Pond 
before the Colonial Ordinances were enacted. Accordingly, I 
am of the opinion that Swan Pond is a great pond, the title to 
which is in the Commonwealth. 

The second question is whether the islands in Sw an Pond are 
owned by the Commonwealth. The only case in Massachu- 
setts dealing with the subject is Attorney-General v. Herrick, 
190 Mass. 307, 313, in which the court states that — 

Ordinarily a grant of a pond as a piece of real estate would include 
the entire area within its borders. . . . 

While there are grounds for an argument that the ordinance of 1641- 
47 had reference only to the waters of the great ponds and the land under 
them, there is much force in the suggestion that the expressions "great 
pond, containing more than ten acres of land," and "great ponds lying in 



380 OPINIONS OF THE ATTORNEY-GENERAL. 

common, though within the bounds of some town," refer to great ponds 
as phj'sical features of the country, including any islands within them. 

It is my opinion that the islands in Swan Pond are the prop- 
erty of the Commonwealth. 

As to the third part of your question, as to the right of your 
Commission to sell or lease the islands in Swan Pond, St. 1904, 
c. 379, § 1, provides as follows: — 

The board of harbor and land commissioners may, imder the authority 
and subject to the approval of the governor and council, sell and convey 
or lease any of the islands owned by the Commonwealth in the great ponds. 

By St. 1916, c. 288, the Board of Harbor and Land Com- 
missioners was abolished, and all the powers, duties and obliga- 
tions conferred and imposed by law on said Board were trans- 
ferred to, and were to be exercised by, the Commission on 
Waterways and Public Lands. Accordingly, I am of the opin- 
ion that your Commission is authorized to convey or lease said 
islands, as provided in St. 1904, c. 379, § 1. 



State Board 
of Charity 

1919 
July 22. 



Paupers • — Loss of Settlement — Domicile. 

Absence of paupers from cities or towns in which they have a residence, in order 
to constitute a loss of settlement, must be for five consecutive j^ears and of such 
a character as to constitute a change of domicile. 

st°ateBoard ^ ^u havc Tcqucsted my opinion upon the question arising 

out of the following facts: — 



A certain woman was born in Ireland May 1, 1878. Her parents 
never came to the United States. She married in Brighton, on April 8, 
1908. Her husband came to the United States about 1897, and resided 
in Boston until he removed to Revere, Dec. 27, 1913, where he continued 
to reside until his death Aug. 17, 1917. He never gamed a settlement. 
At the date of his death his wife had a legal settlement in Boston, gamed 
through her own residence. 

After the death of the husband, the wife went to her sister's home in 
Boston, where she remained until June 29, 1918, and then returned to 
Revere. When she went to her sister's home she had no fixed idea or 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 381 

purpose of living there, but decided to remain there until she became 
reconciled to her husband's death. She was also in poor health, and 
decided she would make her home with her sister until she felt able to 
return to her home in Revere and care for her home and children. Mean- 
time, she had an offer to rent her home to advantage for the winter, 
which she accepted. She returned to Revere as soon as her home was 
vacated. 

The question upon which you have asked my opinion is 
whether the woman, on Dec. 27, 1918, had been absent from 
Boston five consecutive years, w'ithin the meaning of St. 1911, 
c. 669, § 4, as amended. 

This statutory provision, so far as applicable to this case, 
reads as follows: — 

A person who, after the passage of this act, is absent for five consecutive 
years from the city or town in which he had a settlement shall thereby 
lose his settlement. 

I assume from your facts that the woman had gained her 
settlement in Boston prior to Dec. 27, 1913. 

Absence, within the meaning of the statute relating to the 
laws of settlement of paupers, in my opinion, must be of such a 
character and with such intent as to constitute a change of 
domicil. From the facts as given by you, it is manifest that 
this woman intended to regard Revere, and made it, her home 
from the date she went there to live with her husband, and 
that her domiciliary residence from Dec. 27, 1913, has been in 
Revere. 

The woman referred to has therefore, in my judgment, lost, 
within the meaning of St. 1911, c. 669, § 4; as amended, the 
settlement which she had in Boston. 



382 OPINIONS OF THE ATTORNEY-GENERAL. 



Initiative and Referendum — Acts of the Legislature — 
When in Effect. 

Gen. St. 1919, c. 112, increasing the compensation and mileage to be paid to traverse 
and grand jurors, is not a law the operation of which is restricted to a particu- 
lar political division, district or locality of the Commonwealth, and cannot, 
therefore, take effect earlier than ninety days after it becomes a law by ap- 
proval of the Governor. 

Controller of You havc requested my opinion as to when chapter 112 of 

AcTOunta. the General Acts of 1919, increasing and establishing the rate 
July 28. of compensation and mileage to be paid traverse and grand 



jurors, becomes effective. This act applies to all jurors in at- 
tendance upon any court within the Commonwealth. 

The initiative and referendum amendment to the Constitu- 
tion, in the first article under the heading "The Referendum," 
contains the following provision: — 

7. When Statutes shall take Effect. 

No law passed by the General Court shall take effect earlier than 
ninety days after it has become a law, excepting laws declared to be 
emergency laws and laws which may not be made the subject of a referen- 
dmii petition, as herein provided. 

The statute under consideration is not declared to be an 
emergency measure, and therefore it cannot take effect earlier 
than ninety days after it has become a law, unless it is a 
statute which may not be the subject of a referendum petition. 

Article III of this division of the amendment under considera- 
tion is, in part, as follows: — 

III. Referendum Petitions. 

Section 1, Contents. — A referendmn petition may ask for a referen- 
dum to the people upon any law enacted by the General Court which is 
not herein expressly excluded. 

Section 2. Excluded Matters. — No law that relates to reUgion, 
religious practices or religious institutions; or to the appointment, quali- 
fication, tenure, removal or compensation of judges; or to the powers, 
creation or abohtion of courts, or the operation of which is restricted to a 
particular town, city or other political division or to particular districts 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 383 

or localities of the commonwealth, or that appropriates money for the 
current or ordinary expenses of the commonwealth or for any of its de- 
partments, boards, commissions or institutions shall be the subject of a 
referendum petition. 

The only item of excluded matters within which it has been 
suggested this statute may come is that of laws "the operation 
of which is restricted to a particular town, city or other political 
subdivision or to particular districts or localities of the common- 
wealth." The suggestion is made that as the General Court 
might have dealt with the matter of jurors' compensation by 
statutes applicable only in one or more counties and not 
throughout the Commonwealth, and thus by a series of statutes 
covering the several counties of the Commonwealth in succes- 
sion, this statute must be regarded as the equivalent of such a 
series of statutes, and as coming within the matters excluded 
from the referendum by the clause under consideration. 

By precisely the same reasoning, any statute dealing with a 
subject of legislation w^hich it is within the power of the Gen- 
eral Court to make applicable to less than the entire Common- 
wealth could be similarly regarded as the equivalent of several 
statutes applicable to districts or divisions of the Common- 
w^ealth. The real question, therefore, is whether the referendum 
is by the terms of the amendment limited to matters which 
are of such a character that they cannot constitutionally be 
restricted in their application to "a, particular town, city or 
other political subdivision or to particular districts or localities 
of the commonwealth." The same language as that above 
quoted is used in defining the matters excluded from the opera- 
tion of the initiative (The Initiative, art. II, § 2). So this 
suggestion also raises the question w^hether only those matters 
may be made the subject of the popular initiative as are re- 
quired by the Constitution to be made applicable throughout 
the Commonwealth. 

The history of the adoption of the initiative and referendum 
amendment is too recent to require stating. It was the result 
of a popular desire of considerable strength to provide the peo- 
ple with a more effective means of controlling the exercise of 



384 OPINIONS OF THE ATTORNEY-GENERAL. 

legislative power. Its opening article, defining the scope of the 
amendment, is as follows: — 

I. Definition. 
Legislative power shall continue to be vested in the general court; 
but the people reserve to themselves the popular initiative, which is 
the power of a specified number of voters to submit constitutional amend- 
ments and laws to the people for approval or rejection; and the popular 
referendum, which is the power of a specified number of voters to submit 
laws, enacted by the General Court, to the people for their ratification or 
rejection. 

Both expressly and by implication it is indicated throughout 
the amendment that both the initiative and the referendum 
shall be applicable to all exercises of legislative power except 
those dealing with matters excluded from their operation. The 
various exclusions are based upon different grounds of policy. 
That under consideration seems plainly to be founded on a 
desire not to burden the people of the whole Commonwealth 
with the duty of passing upon matters of only local or limited 
application in which they are not as a whole interested; but 
unless a matter is excluded on other grounds, it is the obvious 
purpose of the amendment to enable the people directly to 
consider, enact, approve or reject all matters of legislation 
which affect the people of the Commonwealth as a whole. 
Thus there are many matters which are ordinarily dealt with by 
general legislation applicable throughout the Commonwealth 
which conceivably might in a proper case be restricted to par- 
ticular localities or districts. It cannot be said that all such 
matters are excluded from the initiative and referendum merely 
because the General Court might have dealt with them locally. 
It must be said that if it chooses to treat a matter as one of 
general application, and to deal with it as such by a general 
statute applicable to all the people of the Commonwealth who 
come within its scope, it is not excluded from the initiative and 
referendum. Such a statute is in fact made applicable to the 
entire Commonwealth, and therefore cannot be said to be a law 
"the operation of which is restricted to a particular town, city 
or other political subdivision or to particular districts or locali- 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 385 

ties of the commonwealth." To construe the amendment 
otherwise would be to overlook its real character of a far- 
reaching reservation of power to the people, and thereby to 
thwart by a narrow construction the will of the people as ex- 
pressed therein. 

Accordingly, in my opinion, the statute to which you refer 
does not deal with a matter expressly excluded from the opera- 
tion of the referendum by the provisions of the Constitution, 
and therefore, in my judgment, it cannot take effect earlier 
than ninety days after it became a law by approval by the 
Governor on April 18, 1919. 



To the 



Highway Commission — Operators of Motor Vehicles — 
Revocation and Renewal of^ Licenses. 

Under Gen. St. 1916, c. 290, the Massachusetts Highway Commission may, within 
one year of the time of conviction of an operator of a motor vehicle for viola- 
tion of a law which provides for the surrender and revocation of a license, 
issue a new license where, on appeal, the district attorney has made an entry 
of nol. pros., but may not do so where, on appeal, a plea of nolo contendere is 
accepted by the court and the case is placed on file. 

You have requested my opinion as to the following: 

Highway 

Assuming that the holder of an operator's license has been convicted Commission, 
in the lower court of operating a motor vehicle while under the influence Juiy^. 
of intoxicating liquor, and that such conviction has been followed bj' 
the surrender and revocation of the license, has this Commission the 
power, after an investigation or upon hearing, to issue a new license to 
such operator under the following circumstances, viz. : — 

(a) Within one year from such conviction in the lower court, in the 
event that in the Superior Court the entry of nol. pros, is made by the 
district attorney. 

(b) Within one year from such conviction in the lower court, in the 
event that in the Superior Court the plea of nolo contendere is accepted 
and the case placed on file. 

Gen. St. 1916, c. 290, provides: — 

Whoever upon any way operates an automobile or motor cycle, reck- 
lessly, or while under the influence of intoxicating liquor, or so that the 
lives or safety of the pubhc might be endangered, or upon a bet, wager or 



386 OPINIONS OF THE ATTORNEY-GENERAL. 

race, or whoever operates a motor vehicle for the purpose of making a 
record and thereby violates anj^ provision of sections sixteen and seventeen 
of this act, or whoever without stopping and making known his name, 
residence, and the number of his motor vehicle goes away after knowingly 
colliding with or other\\ase causing injury to any other vehicle or property, 
or whoever uses a motor vehicle without authority, shall be punished [as 
therein provided]. 

The statute further provides: — 

A conviction of a violation of this section shall be reported forthwith 
by the court or magistrate to the commission which may in any event 
and shall, unless the court or magistrate recommends otherwise, revoke 
immediately the license of the person so convicted, and no appeal from 
the judgment shall operate to stay the revocation of the license. . . . 
The commission in its discretion may issue a new license to any person 
acquitted in the appellate court, or after an investigation or upon hearing 
may issue a new license to a person convicted in any court: provided, 
that no new license shall be issued by the commission to any person con- 
victed of operating a motor vehicle while under the influence of intoxicat- 
ing hquor until one year after the date of final conviction, if for a first 
offence, or five years after any subsequent conviction, and to any person 
convicted of violating any other provision of this section until sixty days 
after the date of final conviction if for a first offence, or one year after the 
date of any subsequent conviction. 

It follows that upon a conviction in the lower court of 
operating a motor vehicle while under the influence of intoxi- 
cating liquor the license then held by the person so operating 
a motor vehicle is to be forthwith revoked, unless the court or 
magistrate recommends otherwise; and that no appeal from the 
judgment in the lower court shall operate to stay the revocation 
of the license. The person so convicted cannot again receive 
a new license unless he is acquitted in the appellate court, or 
until one year has expired after the date of final conviction. 

The questions which you raise, therefore, are dependent 
upon whether what is done in the Superior Court amounts to 
an acquittal or a conviction. 

The words of the statute are to be given a reasonable con- 
struction. I am of the opinion that the word "acquittal," as 
used in the statute, includes more than an acquittal by a jury. 
I do not think it could have been intended by the Legislature 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 387 

that where a complamt in the Superior Court is quashed by 
the court, or an entry of nolle prosequi is made by the district 
attorney, and no new complaint is brought, the person charged 
is to be forever barred from receiving a new license. This 
result will follow if the word "acquittal" is to be construed in 
its strict sense. 

In the case of Lizotte v. Dloska, 200 Mass. 327, it was said by 
Chief Justice Rugg, at page 329, that "the entry of a nolle 
prosequi is final so far as the particular case is concerned." 
While it is true that in some jurisdictions a nolle prosequi may 
be removed upon order of the court, and that that question 
has not been determined in this Commonwealth, yet it has 
always been considered, so far as other proceedings were con- 
cerned, that the entry of a nolle prosequi was to be considered 
as a final determination of the case. As was said by the chief 
justice in Lizotte v. Dloska: — 

The district attorney had the absolute power to enter a 7iolle prosequi 
upon his official responsibility, without the approval or intervention of 
the court. He alone is answerable for the exercise of his discretion in 
this respect. It is presumed that he will act under such a heayj'' sense 
of obligation for enforcement of the law and sensitive consciousness of 
important public duty that no wrongful act will be conunitted. 

It was said in Commonwealth v. Lockwood, 109 Mass. 323, 
that — 

The ordinary legal meaning of "comdction," when used to designate 
a particular stage of a crimmal prosecution triable by a jury, is the con- 
fession of the accused in open court, or the verdict returned against him 
by the jury, which ascertains and publishes the fact of his guilt. 

And this meaning of the word "conviction" was followed in 
the case of Munkley v. Hoyt, 179 Mass. 108. 

I am of the opinion that the meaning of the word "convic- 
tion," as used in the statute, is the ordinary legal meaning, and 
that the expression "final conviction," as used in the statute, 
refers to that stage of the case where nothing is left to be done 
other than the imposition of the judgment or sentence. 

In the case of White v. Creamer, 175 Mass. 567, it was said 



388 OPINIONS OF THE ATTORNEY-GENERAL. 

that a sentence imposed after a plea of nolo contendere amounts 
to a conviction in the case in which the plea is entered, although 
such record could not be used in another judicial proceeding to 
show that the defendant was guilty. It is my opinion, there- 
fore, that where a plea of 710I0 contendere is accepted, and the 
case is then placed on file, your Commission is authorized, after 
the expiration of one year from such plea, to issue a new license 
to the person entering the plea, but not before. 

Accordingly, I am of the opinion that your first question is 
to be answered in the affirmative, and your second question in 
the negative. 



July 29. 



Inmate of Public Institution — Acquiring a Settlement. 

Under the provisions of St. 1911, c. 669, the time spent by a pauper as an inmate 
in any public institution at public expense, irrespective of the source from 
which the public funds come, is to be counted in computing the time for ac- 
quiring a settlement unless he tenders reimbursement within two years of the 
time of receiving such relief. 

To the You have requested my opinion as to whether aid rendered 

State Board ^ ' ^ 

"^giQ^*"*^' to a poor person in a city or town hospital, which is supported 
in whole or in part by an appropriation other than that granted 
the overseers of the poor or board of health, prevents the gain- 
ing or acquiring of a settlement if such aid is not paid for by 
the overseers of the poor, by the board of health or by the State 
Board of Charity. 

I assume by the use of the words "poor person" you have 
reference to a pauper. 

St. 1911, c. 609, § 4, reads, in part, as follows: — 

. . . But the time during which a person shall have been an inmate 
of any public hospital, public sanatorium, almshouse, jail, prison, or 
other public institution, within the commonwealth, or of a soldiers' or 
sailors' home whether within or without the commonwealth, shall not be 
counted in computing the time either for acquiring or for losing a settle- 
ment, except as provided in section two. 

This provision of law applies to an inmate of any of the 
public institutions referred to, irrespective of the source from 
which the public funds come. 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 389 

St. 1911, c. 669, § 2, referred to, reads as follows: — 

No person shall acquire a settlement, or be in process of acquiring a 
settlement, while receiving relief as a pauper, unless, within two years 
after the time of receiving such relief, he tenders reimbursement of the 
cost thereof to the commonwealth, or to the city or town furnishing the 
same. 

Accordingly, I am of the opinion that under the provisions 
of section 4, above referred to, irrespective of the source of the 
aid rendered to a pauper in a city or town hospital, the time 
spent there is not to be counted in computing the time for 
gaining or acquiring a settlement, except as provided in section 
2, by which, if he shall tender reimbursement of the cost to 
the city or town furnishing the same, he shall be in the process 
of acquiring a settlement. 



Town Treasuker — Women — Eligibility to hold Office. 

Under the provisions of St. 1913, c. 835, § 400, a woman is ineligible to election to 
the office of town treasurer. 

You have requested my opinion as to whether a woman may xothe 
fill the position of town treasurer. sStte. 

1919 

St. 1913, c. 835, § 400, provides:— July so . 

Every town at its annual meeting shall in every year, except as is 
otherwise provided in the following sections, choose from the inhabitants 
thereof the following named town officers, who, except as otherwise 
provided in the following sections, shall serve during the year: . . . 

Among the officers so to be chosen, as specified in the section, 
is a town treasurer. It is also provided, at the end of the sec- 
tion, that — 

Women shall be eligible as overseers of the poor and school committee. 

This provision grew out of the provision of St. 1874, c. 389, 
§ 1, that "no person shall be deemed to be ineligible to serve 
upon a school committee by reason of sex;" and from the 



390 



OPINIONS OF THE ATTORNEY-GENERAL. 



provision of St, 1SS6, c. 150, that "no person shall be ineligible 
for the office of overseer of the poor by reason of sex." 

The language used in said section 400 is substantially the 
same as that contained in R. L., c. 11, § 334. The expression 
that the town shall choose from the inhabitants thereof the 
various town officers enumerated appears in R. S., c. 15, § 33; 
Gen. Sts., c. 18, § 31; and P. S., c. 27, § 78. 

The word "inhabitant," as used in these various statutes, in 
my opinion, does not include women unless specific provision 
is made therefor by the Legislature. This view is confirmed by 
the action of the Legislature in 1874 and in 1886, wherein 
women were made eligible to serve as members of a school 
committee and as overseers of the poor. It is also confirmed 
by the views expressed by the justices of the Supreme Judicial 
Court in an opinion rendered to the House of Representatives 
Feb. 6, 1811 (7 Mass. 523). See also Opinions of the Justices, 
122 Mass. 594; 115 Mass. 602; 165 Mass. 599. 

Accordingly, I am of the opinion that a woman is ineligible 
to be elected town treasurer, under the provisions of St. 1913, 
c. 835, § 400. 



To the 

Bank 

Commissioner. 

1919 
August 2. 



Co-operative Banks — Right to borrow Money. 

A co-operative bank has no right to borrow money from national banks or trust 
companies for any purpose other than to meet an unusual demand by its 
depositors for withdrawals. 

You have requested my opinion as to whether a co-operati\e 
bank may borrow money from a national bank or trust com- 
pany in order to meet the demands of its borrowers. 

Sections 1 and 19 of chapter 623 of the Acts of 1912 provide 
only for loaning accumulations of a co-operative bank, and do 
not provide for loaning borrowed money. The only provision 
of our statutes giving power to a co-operative bank to borrow 
is found in section 4 of chapter 643 of the Acts of 1914, which 
reads in part as follows : — 

. . . On any occasion when there is an unusual demand b}^ depositors 
for withdrawal from the funds of any co-operative bank . . . such co- 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 391 

operative bank bj^ a vote of at least three-fifths of its directors and with 
the consent of the bank commissioner, may borrow from any national 
bank, savings bank, co-operative bank or trust compan5^ . , . 

I am of the opinion that the Legislature, by passing this 
statute, intended that co-operative banks in this Common- 
wealth should be allowed to borrow only for the purpose set 
forth, namely, to meet an unusual demand by its depositors 
for withdrawals, and that by implication a co-operative bank 
has no right to borrow money for any other purpose. 



Life Insurance Companies — Loans to Policyholders — 
Home Purchase Plan. 

A life insurance company may constitute the taking out of a policy of insurance a 
condition precedent to the making of a loan, provided such condition is stated 
in the policy and made available to all policyholders of the same class. 

You have requested my opinion as to whether a plan, called J°^^^j 



Insurance 
Commissioner. 



1919 



the Home Purchase Plan, proposed by the Equitable Life As- 
surance Society, will be in violation of the provisions of St. " !!!^''- 
1907, c. 576, § 69. You state, in brief, that it is an arrange- 
ment whereby the Equitable Life Assurance Society will make 
a loan to a person desiring to build a home, a condition of the 
loan being that the borrower shall take out a policy of life in- 
surance in the company. The premium on the policy, interest 
on the loan and a certain agreed amount to be paid periodically 
on the principal of the mortgage are paid in monthly instal- 
ments, so graduated that at the end of ten years the property 
is free from encumbrance and the life insurance policy is re- 
assigned to the borrower. 

The part of said section 69 involved is as follows: — 

. . . nor shall any such company or agent pay or allow, or offer to 
pay or allow as inducement to insurance, any rebate of premium payable 
on the policy, or any special favor or advantage in the dividends or other 
benefit to accrue thereon, or any valuable consideration or inducement not 
specified in the policy contract of insurance; or give, sell or purchase or 
offer to give, sell or purchase as inducement to insurance or in connection 



392 OPINIONS OF THE ATTORNEY-GENERAL. 

therewith, anj^ stocks, bonds or other securities of any insurance company 
or other corporation, association or partnership, or any dividends or 
profits accrued thereon, or anything of value whatsoever not specified in 
the poHcy. 

In an opinion given to you April 30, 1919, in relation to the 
method of the conduct of business by the Morris Plan Insur- 
ance Society, I expressed doubt as to whether the provisions of 
said section 69 authorized an insurance company to make any 
inducement it saw fit so long as the inducement w^as set out in 
the policy, and stated that if the section were held to authorize 
insurance companies to specify and undertake obligations for- 
eign to insurance, grave practical difficulties would arise in 
carrying out the provisions of the insurance law. 

But the investment of the money paid to insurance companies 
by policyholders is not foreign to insurance; in fact, it is a 
part of the business of the companies. In eflFect, it is simply 
preferring the policyholders in the investment of the companies' 
funds. Thus the privilege of obtaining a loan from a company 
upon a mortgage of residential property, the privilege and the 
terms thereof being stated in the policy as a part of the contract 
of insurance, and made available to all policyholders in the 
same class, does not, it seems to me, contravene the provisions 
of said section 69. 

Accordingly, I beg to advise you that if the privilege of 
obtaining the loan is stated as one of the privileges enuring to 
the benefit of the assured under the policy, I am of the opinion 
that it will not be in violation of the provisions of said section 
69. 



To the Adju- 
tant-General. 

1919 
August 5. 



State and Federal Militaey Service — Computation of 
Time — Service Medal. 

The time of service of one who was lawfully drafted into the service of the United 
States while a member of the organized militia of the Commonwealth is to be 
computed in measuring the time of honorable service required for a State 
long-service medal. 

You ask me the following questions in relation to Gen. St. 
1917, c. 327, § 191: — 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 393 

1. Can the words "honorable service," as contained in said section, 
be construed to mean any service other than service in the Massachusetts 
Volunteer Militia or the Massachusetts National Guard? 

2. Can Federal service subsequent to the 5th of August, 1917, be 
allowed in computing the time required for a State long-service medal, 
under the pro\'isions of said section? 

Section 191 is as follows: — 

To each officer or enlisted man who completes nine years of honorable 
ser\nce, continuous or otherwise, there shall be issued a medal, and, 
for each additional five years of like service, a clasp to be affixed thereto. 
Active, retired or honorably discharged officers and enlisted men who 
have served in the military or naval service of the United States in time 
of war and have been honorably discharged therefrom, shall receive an 
additional clasp indicative of such service, to be affixed to the medal 
herein provided for. 

I understand the questions arise in relation to the applica- 
tion of a private of Co. B, 9th Regiment Infantry, for a State 
long-service medal. You state in your letter that he was drafted 
into the service of the United States under a proclamation of 
the President, published July 12, 1917, in accordance with the 
act of Congress of May 18, 1917. The question arises because 
of the following provision in the proclamation : — 

Par. III. All persons hereby drafted shall on and from the 5 August 
1917, stand discharged from the militia, , . . 

I am of the opinion that the service of "the private under the 
draft is to be computed as a part of the service required under 
the provisions of section 191. The section provides that "to 
each officer or enlisted man who completes nine years of honor- 
able service, continuous or otherwise, there shall be issued a 
medal." It further provides that "active, retired or honorably 
discharged officers and enlisted men who have served in the 
military or naval service of the United States in time of war 
and have been honorably discharged therefrom, shall receive an 
additional clasp indicative of such service, to be affixed to the 
medal herein provided for." 

It is my view that the statute contemplates that all service 



394 



OPINIONS OF THE ATTORNEY-GENERAL. 



which is directly connected with his enhstment in the organized 
militia of the Commonwealth is to be computed, and if, as a 
part of the obligation he entered into when he enlisted, he is 
called upon to act in the service of the United States govern- 
ment, it is to be deemed a part of his service within the pro- 
visions of the section. 

I question the authority of the President to discharge any 
private who is enlisted in the organized militia of a State from 
service which he is under obligation to perform for the State, 
except for the time that the President of the United States 
deems it necessary to draft his services for Federal purposes. 
However, for the reasons stated above, I think it unnecessary 
to determine this question. 

Accordingly, your c|uestions are to be answered in the 
affirmative. 



To the 
Police 

Commissioner 
of Boston. 

1919 
August 12. 



City of Boston — Police Commissioner 
City Council. 



Duties — 



The Boston city council has no power to impose duties upon the pohce commissioner 
of its city other than those which incidentally arise from his responsibility to 
enforce the law. 

You have requested my opinion as to whether, assuming that 
the city council of Boston has the power to regulate by ordi- 
nance the operation of motor vehicles used for the carriage of 
passengers for hire in the city of Boston, it may properly 
delegate to you or impose upon you the duty of licensing the 
operators of such vehicles and of inspecting such vehicles. 

While there is some doubt as to whether the Attorney- 
General is required to advise you in relation to your duties, I 
have heretofore taken the position that, in relation to State 
offices of a similar nature to yours, I w^ould advise so far as 
such advice related to the construction of the statutes creating 
and governing such offices, and, accordingly, to that extent I 
answer your inquiry. 

The office of police commissioner for the city of Boston was 
created by St. 1900, c. 291. That statute provides that he is 



HENRY C. ATTWILL, ATTORNEY-GENERAL. 395 

to be appointed by the Governor, with the advice and consent 
of the Council. Section 10 of said chapter provides that, 
except as otherwise provided therein, all the powers and duties 
that were conferred or imposed by law upon the board of police 
of the city of Boston at the time of the passage of that act 
are conferred and imposed upon said police commissioner. The 
powers and duties that were conferred and imposed by law upon 
the board of poHce of the city of Boston at the time of the 
passage of said chapter 291 are defined in St. 1885, c. 323, § 2, 
as follows : — 

The board of police shall have authority to appoint and establish 
and organize the police of said city of Boston, and make all needful 
rules and regulations for its efficiency. All the powers now vested in 
the board of police commissioners in said city of Boston, by the statutes 
of the Commonwealth or by the ordinances, by-laws, rules and regulations 
of said city, except as otherwise herebj' promled, are hereby conferred 
upon and vested in said board of police. 

By St. 1878, c. 244, § 2, it was provided that all the powers 
vested by the statutes of the Commonwealth in the board of 
aldermen of the city of Boston in relation to the administra- 
tion of police and the appointment of watchmen and policemen 
in said city should be vested in the board of police commis- 
sioners. 

Thus, it becomes the duty of the police commissioner to have 
charge of and direct the activities of the police of the city of 
Boston in the maintenance of order and in the enforcement of 
law, and to perform such other duties as are imposed upon him 
by the statute by which the office was created. By the pro- 
visions of that statute the salary of the police commissioner 
is established, and, subject to the approval of the Governor 
and Council, he is to be provided with rooms, suitably furnished, 
and convenient and suitable for the performance of his duties, 
the expense of which is to be borne by the city of Boston. 
He is also authorized to employ such clerks, stenographers and 
other employees as he may deem necessary for the proper 
performance of the duties of his oflSce, and to appoint, establish 
and organize the police of said city, and to make all needful 



396 OPINIONS OF THE ATTORNEY-GENERAL. 

rules and regulations for its efficiency, subject only to the 
provision that he shall not appoint a greater number of police 
than the number authorized at the time of the passage of the 
act, nor change the compensation of such police except with the 
approval of the mayor: provided, however, that he is author- 
ized, without such approval, to fix the salary of the police 
superintendent, which shall not exceed five thousand dollars 
per annum. There is no intimation in said statute that the 
police commissioner is to be in any way subject to the direction 
or control of the city council or the mayor in the performance 
of his duties. 

I think it plain from the provisions of the statute creating the 
office and defining the duties of the police commissioner that 
he is a State official, responsible only to the Governor and to 
the Legislature, and that only by statute can additional duties 
be imposed or conferred upon him. Furthermore, it is my opin- 
ion that he is not warranted in assuming any duties other than 
those imposed upon him by statute. 

Accordingly, I am of the opinion that it is beyond the power 
of the city council of Boston to impose any duties upon you 
other than those which incidentally arise from the responsibil- 
ity that you are under to enforce the law, which necessarily in- 
cludes the enforcement of valid ordinances to which penalties 
are attached. 



HENRY A. WYMAN, ATTORNEY-GENERAL. 397 



OPINIONS 

OF 

HENRY A. WYMAN, AnORNEY-GENEEAL. 



Bureau of Statistics — Certification of Town Notes — 
Repairs. 

Cities and towns are prohibited by law from issuing notes in payment for work in 
a schoolhouse unless it is for an addition to the building which increases its 
floor space. 

You have requested an opinion as to your authority to cer- xothe 
tify notes of the town of Provincetown under the following statistics. 

. , , 1919 

article and vote: — Septembers. 

To act upon the report of the committee appointed at the last annual 
town meeting to consider the matter of heating and ventilating the 
Governor Bradford Schoolhouse. 

It was voted that the report of the committee recommending an ap- 
propriation of $6,000 be accepted. 

It was voted that $2,000 of this money be paid in 1920, $2,000 in 1921 
and $2,000 in 1922. 

The report of the committee referred to in said vote shows 
that no work was contemplated except to make changes in 
sanitary conditions, heating and ventilation. The report does 
not refer to any addition to the building, although it is con- 
tended that additional floor space would be secured by reason 
of the changes in equipment. 

The laws on municipal indebtedness are found in St. 1913, 
c. 719. Clause 4 of section 5 of said chapter 719, which ap- 
plies to the present case, reads as follows: — 



398 OPINIONS OF THE ATTORNEY-GENERAL. 

Cities and towns may incur debt, within the limit of indebtedness 
prescribed in this act, for the following purposes, and payable within 
the periods hereinafter specified: — 

(4) For the construction of additions to schoolhouses or buildings 
to be used for anj^- municipal purpose, including the cost of original equip- 
ment and furnishings, where such additions increase the floor space of 
said buildings to which such additions are made, twenty years. 

It would appear that neither an addition to a municipal 
building nor an increase in floor space in such building, alone, 
comes within the provisions of the statute, but that there must 
be an addition as well as an increased floor space in order to 
come within the provisions of the law. This statute was ob- 
viously enacted in an attempt to prevent increasing town 
debts for incidental or ordinary expenses, such as alterations 
and repairs, it evidently being deemed to be sound business 
policy to pay for such expenses out of the tax levy. This 
might possibly be accomplished by other language which 
would permit changes in equipment of an expensive or unusual 
nature, but in case language in the statute of a more general 
character w^ere used, the purpose of the law might more easily 
be defeated. The Legislature having specifically expressed 
that additions are essential in order to entitle a town to the 
provisions of the "borrowing statute," it is my opinion that 
you may not properly certify the notes in question. 



HENRY A. WYMAN, ATTORNEY-GENERAL. 399 



City of Boston — Mayor — Police Commissioner — Police. 

St. 1885, c. 323, § 6, is still in force and applicable to the police commissioner for 
the city of Boston. In case of action by the mayor under its provisions, the 
internal administration and personnel of the police force remain solely under 
the direction and control of the commissioner. 

The mayor of Boston has no authority to direct the reinstatement of any police 
officer removed by the commissioner. 

Under the provisions of Gen. St. 1919, c. 150, a war veteran is eligible to appoint- 
ment to the police force of the city of Boston if he is a resident of this Com- 
monwealth. 

You request my opinion upon certain questions of law, and in to the 
reply thereto I \>eg to submit the following opinion. commissioner 

In answer to your first inquiry, namely, whether the provi- 1919" 

sions of St. 1885, c. 323, § 6, are in force and applicable to the 

police commissioner, I am of the opinion that they are still in 
force and applicable to the police commissioner. 

Your second question is whether the powers of the mayor 
and the duties of the police commissioner, as provided by St. 
1885, c. 323, § 6, empower the mayor to control, direct or pro- 
vide for the internal administration of the police force or its 
personnel under established regulations. In reply to this ques- 
tion I beg to advise you that in my opinion the internal admin- 
istration of the police force of the city of Boston and its per- 
sonnel remain under the control and direction of the police 
commissioner alone, in case of action by the mayor under au- 
thority of this statute. 

In reply to your further specific question as to whether the 
mayor may direct the reinstatement of officers removed from 
the police force by the commissioner, in accordance with exist- 
ing rules and regulations of the police department, I am of 
opinion that the mayor is without power to direct such rein- 
statement. 

You ask my opinion as to whether, under the provisions of 
Gen. St. 1919, c. 150, a veteran, to be eligible for appointment 
to the police force of the city of Boston, must be a resident of 
that cit}', or whether he may be so appointed if a resident of 
the Commonwealth. I am of opinion that it is not necessary, 
in order for a veteran to be eligible for such appointment, that 



400 OPINIONS OF THE ATTORNEY-GENERAL. 

he be a resident of said city, but tiiat it is sufficient if he is a 
resident of this Commonwealth. 

In my opinion, your last request presents a question of fact 
which, in the first instance, at lea,st, is to be determined bv vou. 



To the 
Secretary. 



September 16. 



COXSTITUTIOXAL LaW — RlGHT TO WITHDRAW PETITION FOR 

Referendum. 

A completed petition for a referendum on Gen. St. 1919, c. 116, after it has been 
filed with the Secretary of the Commonwealth cannot be withdrawn by one 
of its signers. 

You have requested my opinion upon the question of whether 
a petition asking for a referendum on Gen. St. 1919, c. 116, and 
requesting that the operation of such law be suspended, may 
now be withdrawn by one of the signers of such petition. 

It appears from your communication and a copy of a letter 
which you enclosed therewith that this petition has been com- 
pleted by filing at your office the signatures of not less than 
15,000 qualified voters within the time prescribed by the Con- 
stitution. The filing of these signatures had the effect of sus- 
pending the operation of this law, and made it the duty of the 
Secretary of the Commonwealth to submit the law to the people 
at the next State election. There is no provision in our Con- 
stitution which provides for the withdrawal of a referendum 
petition after it has been completed, except where the law on 
which a referendum is asked has been repealed. The law 
under consideration, while it was modified in some respects by 
chapter 326 of the General Acts of the present year, has not 
been repealed. 

Accordingly, I am of opinion that your question must be 
answered in the negative. 



HENRY A. WYMAN, ATTORNEY-GENERAL. 401 



Fish and Game Laws — Conviction for Violation — Sur- 
render OF Certificate. 

Under Gen. St. 1919, c. 296, § 12, the imposition of a fine on a plea of nolo contendere 
constitutes a conviction. 

The filing of a case, with or without costs, upon a plea of nolo contendere, or upon 
a plea of guilty, or while an appeal from a conviction in a lower court is pend- 
ing, does not constitute a conviction within the meaning of said statute. 

You request my opinion as to the interpretation of Gen. St. To the 

Commissioners 
1919, e. 296, § 12. of Fisheries 

_ " _ and Game. 

This section reads, in part, as follows: — septemb'er22 

The certificate of any person who shall be convicted of a violation 
of any of the fish and game laws or of any provision of this act shall be 
void, and his certificate shall immediately be surrendered to the officer 
who secures such conviction, and the officer shall forthwith forward 
the same to the commissioners, who shall cancel it and notify the clerk 
in whose city or town the certificate was recorded, of its cancellation; 
and no person shall be entitled to receive a certificate during the period 
of one year after the date of such conviction. A certificate issued to any 
person within one j-ear after such a conviction shall be void, and shall be 
surrendered on demand of any officer authorized to enforce the fish and 
•game laws. 

The specific questions upon which you request my opinion 
are whether the following sets of facts amount to convictions, 
within the meaning of the law above quoted. The situations 
stated by you are as follows : — 

1. Where the defendant pleads nolo contendere and the case is placed 
on file. 

2. Where the defendant pleads nolo contendere and the court imposes 
a fine, 

3. Where the defendant (in the Superior Court) pleads nolo conten- 
dere and upon pa>anent of costs the case is placed on file. 

4. Where the defendant pleads guilty and the case is placed on file. 

5. Where the defendant pleads not guilty and is found guilty in the 
lower court and fined, and the defendant appeals to the Superior Court 
so that he will be allowed to retain his license pending the disposition 
of the case in the Superior Court. 

In Commonwealth v. Kiley, 150 Mass. 325, it was held that 
the word "conviction," in St. 1887, c. 392, providing that "the 



402 OPINIONS OF THE ATTORNEY-GENERAL. 

conviction by a court" of competent jurisdiction of a licensee 
for violating any of the provisions of the hiws relating to intox- 
icating Hquors "shall of itself make the license of such person 
void," implied a final judgment of the court, and that the filing 
of a case by the court after a verdict of guilty did not amount 
to such a conviction. 

A contrary conclusion was arrived at by our Supreme Judi- 
cial Court in the case of Munkley v. Hoyt, 179 Mass. 108, 
where the term "conviction," in a somewhat different statute, 
was held to include a situation where the defendant pleaded 
guilty and his case was placed on file. 

I am of opinion that, so far as your questions involve a de- 
termination of whether the placing of a case on file after a 
plea or a verdict amounts to a conviction, within the meaning 
of the instant statute, they are to be governed by the decision 
in Commonwealth v. Kiley, sujira, and, accordingly, I beg to 
advise that the facts stated in your first, third and fourth ques- 
tions do not amount to a conviction, within the meaning of the 
statute. 

In regard to the second question, namely, where a fine is 
imposed after a plea of 7iolo contendere, I am of opinion that 
this amounts to a conviction, within the meaning of this 
statute. While it is well recognized that a plea of nolo con- 
tendere cannot be used in any other proceedings as an admis- 
sion of guilt [Ohzeicski v. Goldberg, 223 Mass. 27), it amounts, 
' when accepted by the court, to a plea of guilty for the purposes 
of the particular case. Commomvealth v. Ingersoll, 145 Mass. 
381. In WJiite v. Creamer, 175 Mass. 567, the court, in consid- 
ering the effect of this plea, said: "We do not doubt that a 
sentence imposed after a plea of nolo contendere amounts to a 
conviction in the case in which the plea is entered." 

It follows from the foregoing authorities that if it were 
necessary to institute further proceedings to secure the forfei- 
ture of the defendant's license under our statute, a sentence im- 
posed after a plea of nolo contendere could not be used as a 
basis for such proceedings. This is the conclusion arrived at 
by my predecessor in office, in an opinion rendered by him 



HENRY A. WYMAN, ATTORNEY-GENERAL. 403 

to the Board of Registration in Medicine under date of 
Dec. 9, 1915, in which he ruled that the imposition of a fine 
upon the defendant after acceptance by the court of a plea 
of nolo contendere did not warrant that Board in revoking 
any certificate held by him or in cancelling his registration 
as a physician, under R. L., c. 76, § 3, which provides that 
the Board, "after hearing, may by unanimous vote revoke 
any certificate issued by it and cancel the registration of any 
physician who has been convicted of a felony or of any crime 
in the practice of his profession." Under the statute with 
which we are concerned, however, no further proceedings are 
required in order to effect a forfeiture of the defendant's cer- 
tificate. Such forfeiture automatically takes effect upon the 
conviction of the holder, and is in fact an additional punish- 
ment imposed upon conviction in the particular case. 

Accordingly, I am of opinion that, as above stated, the facts 
set forth in your second question constitute a conviction, within 
the meaning of the statute in question. 

Your fifth question is whether a conviction is had, within 
the meaning of this statute, where the defendant, pleading not 
guilty but being found guilty in the lower court and fined, 
appealed to the Superior Court. This question is, in my judg- 
ment, disposed of by an opinion rendered to the State Board 
of Health under date of Feb. 25, 1914, to the effect that the 
term "conviction" in a similar statute implied a final judgment, 
and did not apply while an appeal was pending from a lower 
court. IV Op. Atty.-Gen. 157. It results from this that in the 
situation set forth in your fifth inquiry the defendant cannot be 
considered as having been convicted while his appeal is still 
pending. 

To recapitulate, the answers to questions 1, 3, 4 and 5 are 
in the negative; and to question 2, in the affirmative. 



404 OPINIONS OF THE ATTORNEY-GENERAL. 



Secretary of the Commonwealth — Petition for Refer- 
endum — Public Opinion — Printing on Ballot. 

Under the provisions of St. 1913, c. 819, the Secretary of the Commonwealth must, 
on a petition properly signed and filed with him, place on the official ballot, 
for submission to the voters of a senatorial or representative district, instruc- 
tions to the senators and representatives of such districts to vote for certain 
legislation, if in the opinion of the Secretary it is a question of public policy. 

S'cretlry I havc vouF letter in which you state that there have been 

September 27. filed in the officc of the Secretary of the Commonwealth, under 

the provisions of St. 1913, c. 819, petitions for the submission 

of the following question in certain senatorial and representative 

districts, namely: — 

Shall the senator and representatives from this district be instructed 
to vote for legislation to regulate and license the manufacture and sale 
of beverages containing not over 4 per cent of alcohol by weight and to 
define same to be non-intoxicating? 

You request my opinion as to whether this question should be 
placed upon the official ballot in said districts at the next 
State election. 

St. 1913, c. 819, § 1, provides as follows: — 

On an application signed by twelve hundred voters in anj^ senatorial 
district, or by two himdred voters in any representative district, asking 
for the submission to the voters of that senatorial or representative 
district of any question of instructions to the senator or representatives 
from that district, and stating the substance thereof, the secretary of 
the commonwealth shall determine if such question is one of pubUc pohcy, 
and if he shall so determine shall draft it in such simple, unequivocal 
and adequate form as he shall deem best suited for presentation upon the 
ballot. Upon the fulfilment of the requirements of this act the secretary 
shall place such question on the official ballot to be used in that senatorial 
or representative district at the next state election. 

I beg to advise that, in my opinion, there is nothing con- 
tained in the question which is proposed to be submitted 
which, as a matter of law, would prevent the Secretary of the 
Commonwealth from determining the question to be one of 
public policy. Whether the proposed question is, as a matter 



HENRY A. WYMAN, ATTORNEY-GENERAL. 405 

of fact, one of public policy is for the Secretary of the Com- 
monwealth alone to determine. If the Secretary should de- 
termine that it is a question of public policy, it of course fol- 
lows that the question should be placed on the official ballots, 
as provided in said act. 



War Bonus — Draftee — Discharge for Physical Dis- 
qualification OR Bad Conduct. 

The provisions of Gen. St. 1919, e. 283, granting a war bonus to men honorably 
discharged from the service of the United States in the World War, do not 
apply to drafted men who were passed by the draft board, sent to army camps 
and there discharged because physically disqualified, or to men discharged on 
account of bad conduct or similar ground. 

You have asked my opinion with reference to several ques- to the 
tions which have arisen as to the application of Gen. St. 1919, Receiver- ^'^ 
c. 283, entitled "An Act to provide suitable recognition for 1919' 

1 -1 <.T»T 1 1 ,., October 9. 

those residents or Massachusetts who served in the armj^ and 

navy of the United States during the war with Germany." 
The purpose of this statute is plainly set forth in its first sec- 
tion, and the remainder of the act must in each instance be 
construed in the light of this purpose. That section is as 
follows : — 

In order to promote the spirit of patriotism and loyalty, in testi- 
mony of the gratitude of the commonwealth, and in recognition of the 
services of certain residents of Massachusetts in the army and navy 
of the United States during the war with Germany, to the full extent of 
the demands made upon them and of their opportunity, the payments 
hereinafter specified are herebj^ authorized. 

Your first question is whether men who were summoned in 
the draft, passed by the draft boards, sent to one of the army 
camps and there found physically disqualified, and given a dis- 
charge from the draft, are entitled to the benefits of this act. 
I understand that in each instance these men received no dis- 
charge from the army, but merely a discharge from the obliga- 
tions of the Selective Service Law. Apparently, they never 



406 OPINIONS OF THE ATTORNEY-GENERAL. 

became sufficiently members of the army to be discharged 
therefrom. 

That portion of section 2 of the statute which specifies the 
persons who are to receive the benefit of the act is as follows: — 

Upon application, as hereinafter provided, there shall be allowed 
and paid out of the treasury of the commonwealth, to each commis- 
sioned officer, enlisted man, field clerk and army or nav>' nurse duly 
recognized as such by the war or navj^ department, who was mustered 
into the federal service and reported for active duty subsequently to 
February third, nineteen hundred and seventeen and prior to November 
eleventh, nineteen hundred and eighteen, and to each commissioned 
officer, warrant officer, nurse and enfisted man, who enUsted or was 
enrolled in, or was inustered into the federal ser\'ice and who has been 
called and reported for active duty in the United States Na\'3', United 
States Naval Reserve Forces, United States Marine Corps, United States 
Coast Guard, or the National Na\w Volimteers, subsequently to said 
February third, and prior to said November eleventh, and to every man 
who served during the war in the regular army, navj' or marine corps, 
or to the dependents or heirs at law of the persons above enumerated, 
as provided in section three, the sum of one himdred dollars: . . . 

In my judgment, construing the language just quoted in the 
light of the purpose of the act as specified in section 1, it 
cannot be said that the class of men to which you refer was 
enlisted in or had been enrolled in or had been mustered into 
the Federal service, within the meaning of this statute. These 
men were never in the army of the United States to a sufficient 
extent to be discharged from it. In my opinion, it cannot be 
said that they performed "services ... in the army ... of 
the United States" of the character intended by this statute to 
be recognized. According]}', I must advise you that men of the 
class to which you refer are not entitled to the benefits of the 
statute. 

You also request my opinion as to whether men who actually 
entered the Federal service during the period specified in the 
statute, but who subsequent!}^ received discharges not declared 
by their terms to be either honorable or dishonorable, but 
specified to be given on account of bad conduct or some similar 
ground, are entitled to the benefits of this act. 



HENRY A. WYMAN, ATTORNEY-GENERAL. 407 

Section 5 of the statute provides in part as follows: — 

No person shall be ehgible for anj^ benefit accruing vmder this act 
who (1) shall have received a dishonorable discharge from the ser\'ice 
of the United States, . . . 

In ni}' judgment, this provision, w^hen read in the light of the 
purpose of the act as declared in section 1, must not be strictly 
construed as referring only to persons who receive discharges 
expressly declared by their terms to be dishonorable. It should, 
rather, in my judgment, be given a broader construction and 
be held to exclude from the benefits of the act all persons who 
did not receive an honorable discharge. It was the pur- 
pose of the statute, as declared in section 1, to recognize all 
services rendered in the army or navy by citizens of Massa- 
chusetts "to the full extent of the demands made upon them 
and of their opportunity." I cannot persuade myself that the 
services rendered by a man who so conducted himself as a mem- 
ber of the army of the United States that it became necessary 
to discharge him therefrom for misconduct were services of the 
character intended to be recognized. I am unwilling to assume 
that the General Court intended thus to reward any man who 
so failed to perform his duties that he was discharged for 
misconduct. 



"Anti-aid" Amendment — Americanization Classes — 
Bureau of Immigration. 

By virtue of the "anti-aid" amendment, Article XL VI, the provisions of Gen. St. 

1919, c. 295, would not apply to educational classes for adult immigrants 

organized in factories, taught by private instructors and supervised by a 

supervisor employed and paid for by a city or town. 
The State Board of Education, under the power granted it by Gen. St. 1919, c. 295, 

may train and employ teachers for naturalization classes conducted by the 

Bureau of Immigration. 

You have requested my opinion relative to certain questions Tothe 
which have been raised in connection with Gen. St. 1919, c. 295, of°E(Scati'onf 

1919 

which provides for the promotion of Americanization through October ii. 
education of adult persons unable to use the English language. 



OPINIONS OF THE ATTORNEY-GENERAL. 

Your first question is based upon the following circumstances: 
The school authorities in a city vote to accept the provisions 
of chapter 295. In this city there are several classes for adult 
immigrants, which have been organized in factories and which 
are taught by factory foremen or superintendents. These 
instructors are not in the employ of the school committee. 
The school committee and the factory employers both wish, 
however, to have these classes conducted according to public 
school requirements. To bring this to pass, the school commit- 
tee plans to engage a supervisor who will visit these classes 
periodically and exercise general professional authority over 
them. Your first question is "whether or not such classes are 
to be considered under the control of public school authorities 
to the extent that this department will be enabled to recom- 
mend reimbursement for the salary of this supervisor." 

My answer to this question is in the negative because of the 
so-called "anti-aid" amendment to our Constitution, being 
Article XLVI, which provides, in part, that no grant, appro- 
priation or use of public money or property or loan of public 
credit shall be made or authorized by the Commonwealth for 
the purpose of maintaining or aiding any school or any educa- 
tional undertaking which is not publicly owned and under the 
exclusive control, order and superintendence of public officers 
or public agents authorized by the Commonwealth. The pro- 
visions of chapter 295 do not, therefore, apply to classes organ- 
ized in factories, as set forth by you, nor to supervisors over 
such classes. 

Your second question is raised on the following facts: The 
Bureau of Immigration engages in the recruiting of naturaliza- 
tion classes. The Bureau requests your Board, under the 
power bestowed upon it by chapter 295, to supply teachers for 
these classes. You ask my opinion as to whether or not the 
phrase "to provide teachers and supervisors in Americaniza- 
tion work" is to be intepreted as meaning that under the pro- 
visions of this act the Board may train teachers and employ 
them for the above purpose. 

In my opinion, by the provisions of section 1 of chapter 295 



HENRY A. WYMAN, ATTORNEY-GENERAL. 409 

it was intended by the Legislature that the Board of Educa- 
tion, acting through the Department of University Extension, 
should be empowered to promote Americanization, in the first 
place by co-operation with cities and towns, and secondly by 
co-operation with other proper agencies of the Commonwealth, 
as is indicated by the general provision at the end of section 1, 
which empowers you "to provide teachers and supervisors in 
Americanization work." 

Accordingly, I am of the opinion that your Board may train 
teachers and employ them, under the provisions of said chapter 
295, for the naturalization classes of the Bureau of Immigration. 



Constitutional Law — Public Operation of Street Rail- 
way — Service at Cost — Zones. 

Spec. St. 1918, c. 159, providing for the fixing of such rates by the public trustees 
operating the Boston Elevated Railway Company as will reasonably insure a 
sufficient income to meet the cost of service, constitutes a contract binding 
upon the Commonwealth; any departure therefrom would be unconstitutional 
unless assented to by the stockholders. 

Rates fixed on the "cost of service" principle may be determined on a zone basis. 

By the term "cost of service" as used in connection with Spec. St. 1918, c. 159, is 
meant the cost to the Boston Elevated Railway Company, exclusive of its 
expense to other agencies. 

The General Court may authorize the taking of the Boston Elevated Railway 
Company in the exercise of the right of eminent domain. 

Replying to the oral questions submitted to me for an opin- Tothe 
ion by you, which are as set out below, I beg to advise you as commSS^^ 

follows. October 29. 

1. The first question is whether any departure from the 
service at cost principle prescribed by Spec. St. 1918, c. 159, 
would need to be assented to by the Boston Elevated Railway 
Company. 

Section 18 of that act provides as follows: — 

None of the provisions of this act shall be construed to constitute 
a contract binding upon the commonwealth other than the provisions 
which define the terms and conditions under which, during the period 
of public management and operation, the property owned, leased or 



410 OPINIONS OF THE ATTORNEY-GENERAL. 

operated bj^ the Boston Elevated Railway Companj' shall be managed 
and operated bj^ the said trustees, and the provisions of section thirteen^ 
which provisions shall constitute a contract binding upon the common- 
wealth. 

Section 6 of that act provides, in part, as follows: — 

The trustees shall from time to time, in the manner hereinafter pro- 
vided, fix such rates of fare as will reasonably insure sufficient income 
to meet the cost of the service, . . . 

It seems to me that the provision last above quoted, as to 
the manner in which the rates of fare are to be fixed, is a term 
and condition under which the property is to be managed and 
operated by the trustees, within the meaning of said section 18, 
and therefore constitutes a contract binding upon the Com- 
monwealth, as provided in said section. It would seem to 
follow from this that any departure from the service at cost 
principle as prescribed by this act would be impairing the 
obligation of this contract, contrary to the provisions of the 
Constitution of the United States. It is my opinion, therefore, 
that this cannot legally be done without the assent of the 
stockholders of the Boston Elevated Railway Company. 

The justices of our Supreme Judicial Court, in an opinion 
given to the Senate under date of April 2, 1919 (231 Mass. 
603), held that Senate Bill No. 54, which provided a maximum 
fare of 5 cents on the lines of the Boston Elevated Railway 
Company, was constitutional; but it is to be noted that sec- 
tion 6 of that bill provided that it should not take effect until 
it was accepted by a majority of the stockholders of the Boston 
Elevated Railway Company. 

2. As to the second question, I beg to advise that I can see no 
reason why the system of the Boston Elevated Railway Com- 
pany cannot be divided into zones for the purpose of determin- 
ing rates of fare, and different rates of fare applied to the 
various zones: provided, Jiowever, that such rates insure sufficient 
income to meet the cost of service, within the meaning of sec- 
tion 6 of said chapter 159. 

3. If the Boston Elevated Railway Company is legally freed 



HENRY A. WYMAN, ATTORNEY-GENERAL. 411 

from its obligation to pay rental for the use of its subways, the 
rental of which it is so relieved should not be included in de- 
termining the cost of the service, and the fact that an amount 
equal to this rental is assessed upon the metropolitan district 
would not change this conclusion. It seems to me that the 
cost of service means the cost to the Boston Elevated Railway 
Company, and in determining this cost the expense which it 
involves to other agencies should not be included. 

Replying to the question submitted in your letter of October 
24, namely, "as to whether the State can take the property of 
the Boston Elevated Railway Company by condemnation to 
effect public ownership of the railway," I have to advise you 
as follows. 

Under the Constitution and the decisions of our court there 
can be no question but that, if "the public exigencies" require 
the property of the Boston Elevated Railway Company to "be 
appropriated to public uses," it is within the constitutional 
power of the General Court to authorize such taking by eminent 
domain, making provision at the same time for the payment of 
reasonable compensation to the owners of said property. 



Hunting License — Conviction — Forfeiture. 

Under Gen. St. 1919, c. 296, a hunting license is automatically forfeited upon the 
conviction of the holder thereof, regardless of whether or not the officer pro- 
curing the conviction has obtained a surrender of the license, as required by 
law. 



To the 
Commissioners 



I have your letter in which you state that upon a plea of 
7iolo contendere a defendant was fined $10 upon a complaint °n/Qami^^ 
for killing a mourning dove, and that at the time of conviction octoblr: 
he was not required to surrender his hunting license, as pro- 
vided in Gen. St. 1919, c. 296. You request my opinion as to 
whether "this disposition of the case bars us from proceeding 
against him for the surrender of his license," and "if it does 
not, will you kindly indicate to us what action should be taken 
by this Board." 

I advise you that, in accordance with the opinion rendered 



412 OPINIONS OF THE ATTORNEY-GENERAL. 

to you September 22, upon such conviction no further proceed- 
ings are required in order to effect a forfeiture of the defend- 
ant's certificate. Such forfeiture automatically takes effect 
upon the conviction of the holder, and is in fact an additional 
punishment imposed upon conviction in the particular case. 

The statute expressly states that *'the certificate of any 
person . . . shall be void, and his certificate shall immediately 
be surrendered to the officer who secures such conviction, and 
the officer shall forthwith forward the same to the commis- 
sioners, who shall cancel it and notify the clerk in whose city 
or town the certificate was recorded, of its cancellation." 

It would appear that the officer securing this particular con- 
viction failed to carry out the duties imposed upon him by the 
statute. There would appear to be, however, no reason why 
the officer should not now require the defendant to surrender 
his certificate and forward it to you in accordance with the 
terms of the statute. I doubt not that upon the proper de- 
mand, if a person so convicted fails to comply forthwith, proper 
proceedings may be instituted to compel the delivery of the 
certificate. Furthermore, there would appear to be no objec- 
tion to your notifying the city or town granting the certificate 
that the same is void, and order its cancellation. The failure 
of the officer to fulfill the duties imposed upon him by the 
statute cannot change the force and effect of the statute in 
making the certificate void, and under the circumstances set 
out in your letter the person holding such certificate is without 
any authority of law to act under it. 



Constitutional Law — Capital Stock of Street Railway 
Company — Eminent Domain. 

The Legislature may authorize the taking of shares of the capital stock of a street 
railway company in the exercise of the right of eminent domain. 

sfreif Railway You havc rcqucstcd my opinion upon the following ques- 

Commission. ,. 

1919 tion: — 

October 31. 

If public exigencies require, can the stock of the Boston Elevated 

Railway Company be taken by condemnation proceedings? 



HENRY A. WYMAN, ATTORNEY-GENERAL. 413. 

I assume your inquiry to involve the question whether it is 
within the constitutional right of the Legislature to provide for 
the taking by condemnation proceedings of the capital stock 
of said railway company. 

I do not find any constitutional provision, Federal or State, 
which in anywise restricts the exercise of the right of eminent 
domain as affecting the question at issue. 

In an early case in Massachusetts, in an opinion by Chief 
Justice Shaw, the right of eminent domain is referred to as 
follows : — 

It is fully conceded that the right of eminent domain, the right of 
the sovereign, exercised in due form of law, to take private property for 
public use, when necessity requires it, of which the government must 
judge, is a right incident to every government, and is often essential 
to its safety. And property is nomen generalissimum, and extends to 
every species of valuable right and interest, and includes real and per- 
sonal property, easements, franchises and incorporeal hereditaments. 
Even the term "taking," which has sometimes been relied upon as im- 
plying something tangible or corporeal, is not used in the Massachusetts 
Declaration of Rights; but the provision is this: "Wlienever the public 
exigencies require that the property of any individual should be appro- 
priated to public uses, he shall receive a reasonable compensation therefor." 
Declaration of Rights, art. 10. Here again the term "appropriate" is 
of the largest import, and embraces every mode by which property may 
be applied to the use of the pubhc. Whatever exists, which public necessity 
demands, may be thus appropriated. 

Boston & Lowell R.R. Co. v. Salem & Lowell R.R. Co., 2 Gray, 
1, 35. 

In a New Jersey case decided in 1873 it was said by the 
court: — 

In the exercise of the right of eminent domain, the Legislature may 
authorize shares in corporations, and corporate franchises, to be taken 
for public uses upon just compensation. The title to this species of 
property is no more secure against invasion, when the public uses re- 
quire it, than is the ownership of real estate. Under this paramount 
right in the public, subject to which all private property is held, the 
franchises of one corporation have been, and may be, taken and be- 
stowed upon another. 

Black V. Delaware & Raritan Canal Co., 9 N. J. Eq., 455, 468.^ 



414 OPINIONS OF THE ATTORNEY-GENERAL. 

It has been held that ''even contracts and legislative grants, 
which are beyond the reach of ordinary legislation, are not 
exempt." New York, Housatonic & Northern R.R. Co. v. 
Boston, Hartford d- Erie R.R. Co., 36 Conn. 196, 198. 

In the case of Neiv York, Neiv Haven & Hartford R.R. Co. v. 
Offield, 77 Conn. 417, in which the right to take two shares 
of stock of a railroad corporation w^as involved, and in which 
it was contended that one railroad corporation could not take 
the stock of another railroad corporation, it was said : — 

The record shows the credit of the New Haven and Derby Railroad 
Company to be such that if it could provide the means for the projected 
improvement of its property at all, it must be by contracting loans at 
a higher rate of interest than would be paid by the plaintiff for similar 
assistance. This being so, the public interest would be better served by 
ha\'ing the plaintiff do the work. That it is a necessary work in order 
to make the railroad of the greatest service to the pubUc is admitted by 
the demurrer. It will therefore promote the use for which the line was 
originally constructed. Whatever in the nature of a property interest 
stands in the way of such promotion the State can put aside. Any kind 
of property can be taken for public use on making just compensation. 
The whole franchise of a corporation may be so taken. ... Its whole 
property may be hkewise taken. . . . Shares of stock represent an undi- 
vided interest m such franchises and property, and for the same reason 
can be taken, if to take them seems to the State necessary in furtherance 
of public uses. 

This case was taken to the Supreme Court of the United 
States, and affirmed by a decision reported in 203 U. S. 372. 
See also Contributors of the Pennsylvania Hospital v. City of 
Philadelphia et al., 245 U. S. 20; City of Cincinnati v. Louis- 
ville & Nashville R.R. Co., 223 U. S. 390. 

The right of the State to authorize the appropriation of 
every description of property, including every contract, whether 
between the State and an individual or between individuals 
only, for a public use, is one of its inherent powers, provided 
there be due process of law. The capital stock of the Boston 
Elevated Railway Company clearly falls within the scope of 
this sovereign authority of the Commonwealth, and I therefore 
answer your question in the affirmative. 



HENRY A. WYMAN, ATTORNEY-GENERAL. 415 



COXSTITUTIONAL LaW — SECRETARY OF THE COMMONWEALTH 

— Liquor License — Printing on Ballot. 

Under the provisions of St. 1913, c. 835, § -119, the Secretary of the Common- 
wealth is bound to place on the ballots sent to towns the question, "Shall 
licenses be granted for the sale of intoxicating liquors in this town?" as noth- 
ing therein contained is in violation of the prohibition amendment or the 
National Prohibition Act. 

You have requested my opinion upon the question of whether To the 
it is your duty to place upon the ballots which are sent to the isiq' 

/^ • 1 1 11 November 7. 

town clerk or each town not using official ballots the question, 

"Shall licenses be granted for the sale of intoxicating liquors 
in this town?" in view of the so-called prohibition amendment 
to the Constitution of the United States and the acts of Con- 
gress passed for the enforcement of said amendment. 

It is fundamental in our system of jurisprudence that the 
Constitution of the United States, and the laws made in pur- 
suance thereof, is the supreme law of the land. It follows 
from this that if the law of this Commonwealth commanded the 
doing of that which is forbidden by the Constitution and laws 
of the L nited States the State law would be nugatory and of 
no effect. But so long as the performance of the duty imposed 
by the law of the State is not contrary to or prohibited by the 
Federal Constitution and the laws made thereunder, it is incum- 
bent upon the person upon whom such diity is imposed to obey 
the law of the State. Changes in the paramount law of the 
land may create need for changing the law of the State. 
Indeed, it may create an imperative necessity, as a practical 
matter, that the law of the State be repealed or altered in such 
a manner as to work consistently and in harmony with the 
mandates of Federal authority. In all cases, however, where 
the law of the State is not in direct conflict with Federal law, 
the question of the wisdom, expediency or practical necessity of 
altering the laws of the State to conform more nearly with the 
provisions of Federal law is a matter for the legislative branch 
of the Commonwealth alone to determine, and officers of the 
State charged with the execution of its laws are bound to carry 



416 OPINIONS OF THE ATTORNEY-GENERAL. 

out the provisions thereof until they are repealed or changed 
by the General Court. 

Upon applying these general principles to the instant ques- 
tion, the answer to your question seems plain, for by St. 1913, 
c. 835, § 419, a positive duty is imposed upon you in relation 
to placing upon the ballots hereinbefore referred to the question 
of granting licenses for the sale of intoxicating liquors. That 
statute is as follows: — 

The secretary of the commonwealth shall at least seven days before the 
annual meeting send to the town clerk of each town not using official 
ballots, ballots upon the question of granting licenses for the sale of intoxi- 
cating Uquors therein, which shall contain the words: "Shall licenses be 
granted for the sale of intoxicating liquors in this town?" "Yes" or "No," 
and no other words. Ballots of each kind shall be provided in number 
equal at least to the number of registered voters in such town. They shall 
be distributed to the voters at the polling place under the direction of the 
town clerk. 

The material parts of the recent amendment to the Consti- 
tution of the United States, commonly known as the "prohibi- 
tion amendment," are as follows: — 

Sect. 1. After one year from the ratification of this article the manu- 
facture, sale, or transportation of intoxicating liquors within, the importa- 
tion thereof into, or the exportation thereof from the United States and all 
territory subject to the jurisdiction thereof for beverage purposes is hereby 
prohibited . 

Sect. 2. The Congress and the several States shall have concurrent 
power to enforce this article by appropriate legislation. 

Pursuant to this amendment an act of Congress has lately 
been passed, under the title of the National Prohibition Act. 
Part II of this act, which is to take effect from and after the 
date when the Eighteenth Amendment to the Constitution of 
the United States goes into effect, prohibits the manufacture, 
sale and transportation of intoxicating liquor, and defines the 
term "intoxicating liquor" to include alcohol, brandy, whisky, 
rum, gin, beer, ale, porter and wine, and in addition thereto 
any spirituous, vinous, malt or fermented liquors containing 
one-half of 1 per cent or more of alcohol, by volume, which are 
fit for beverage purposes. 



HENRY A. WYMAN, ATTORNEY-GENERAL. 417 

It is clear that if this act remains in force on and after the 
date upon which licenses might be granted in cities and towns 
of this Commonwealth, the placing of this question upon the 
ballot and the voting thereon at the city or town elections will 
have little, if any, practical effect. It is equally clear, on the 
other hand, that nowhere in the constitutional amendment or 
the acts of Congress passed thereunder is there any prohibition 
or restriction which prevents the question in issue being placed 
upon the ballots, as required by section 419, above quoted. 
That section is not in violation of the Federal Constitution or 
Federal laws. It is not either expressly or by necessary impli- 
cation repealed or annulled, but remains in force and effect as 
the law of this Commonwealth until repealed or amended by 
our General Court. The question is not the value, or lack 
thereof, or the practical effect resulting from your act, but the 
legal duty imposed upon you by the statute. 

Accordingly, I beg to advise you that for the foregoing 
reasons I am of opinion that it is your duty to place upon the 
ballots sent to the town clerk of each town not using official 
ballots the question, "Shall licenses be granted for the sale of 
intoxicating liquors in this town?" as provided by St. 1913, c. 
835, § 419. 



Mechanic's Lien — Laborers — Weekly Wages. 

A lien filed in due season by a laborer for work performed either prior to the re- 
cording of a mortgage or in connection with the erection, alteration, repair 
or removal of a building or structure, which erection, alteration, repair or 
removal was begun prior to the recording of the mortgage, takes precedence 
over the mortgage. 

Where the erection, alteration, repair or removal of a building or structure is 
commenced after the recording of the mortgage, the only remedy of a work- 
man who has done work in connection with such erection, alteration, repair 
or removal is against the contractor, either civilly for wages owed or crim- 
inally for failure to pay weekly. 

You have asked my opinion as to whether Gen. St. 1918, c. TotheCom- 
265, affects the weekly payment law, as provided in St. 1909, c. "^^'^^J'^ 
514, § 112, as amended; and also whether there is any legal No vember 28. 
procedure by which a workman may obtain certain wages he 
has earned, on a particular set of facts stated in your letter. 



418 OPINIONS OF THE ATTORNEY-GENERAL. 

Section 112, aforesaid, was last amended by Gen. St. 1918, c. 
87, and under the statute as amended the contractor is liable 
criminally for failure to pay wages weekly. Gen. St. 1918, c. 
265, does not afiPect this liability in any way. Section 1 of 
chapter 265 enlarges the lien of material men who do work 
after the date of the original contract. Section 2 provides for 
dissolution of the lien by notice from the person who holds the 
lien. Section 3 also relates to dissolution of Hens, and section 
4 to the rights of an attaching creditor, but there is nothing 
therein which restricts the rights of a laborer as created by 
prior laws. 

The law relative to Hens for labor and materials is contained 
in Gen. St. 1915, c. 292, and numerous amendments thereto, 
particularly Gen. St. 1916, c. 306. Section 6 of the 1915 act, as 
amended, reads as follows : — 

No Hen, except under the pro\dsions of section one, shaU avail as against 
a mortgage actuaUy existing and duly registered or recorded prior to the 
fiHng or recording in the registry of deeds of the notice required by the pro- 
visions of this act, and no lien under section one shaU avail as against 
such a mortgage unless the work or labor performed is in the erection, alter- 
ation, repair or removal of a building or structure, which erection, altera- 
tion, repair or removal was actually begun prior to the recording of the 
mortgage. 

Section 1 therein referred to provides for the labor Hen. 

The effect, then, of section 6 is as follows: Where a workman 
does work before a mortgage is recorded he has a lien for the 
work if he files his claim in due season, and this lien has prece- 
dence over the mortgage. He also has a similar lien if the erec- 
tion, alteration, repair or removal of a building or structure on 
which he was working was begun prior to the recording of the 
mortgage, even though he does not do his individual work until 
after the recording of the mortgage. If, however, he does not 
start his work until after the mortgage is recorded, and the 
mortgage was recorded before the erection, alteration, repair or 
removal of the building or structure was begun, the mortgage 
has precedence over his lien. 

Assuming, then, that the laborers referred to in your letter 



HENRY A. WYMAN, ATTORNEY-GENERAL. 419 

filed their claims in due season and started their work either 
before the mortgage was recorded or did work on the alteration, 
repair or removal of a building or structure which was begun 
prior to the recording of the mortgage, they have a lien on the 
land ahead of the mortgage. If, however, the mortgage was 
recorded before the job of erection, alteration, repair or removal 
of the building was begun, and they did no work prior to the 
recording of the mortgage, then they are shut out from their 
lien, as a practical matter, because the mortgage takes prece- 
dence over their lien, and their only remedy is against the con- 
tractor, which remedy can be pursued civilly for wages owed, 
and criminally for failure to pay weekly. 



Public Service Commission — Limitation of Grade Cross- 
ings — Public and Private Railroads. 

St. 1890, c. 382, and St. 1892, c. 228, as amended, authorizing the Public Service 
Commission to limit crossings at grade for a specified time, apply to private 
crossings on all railroads. 

You have asked my opinion as to whether the position taken Tothe 
by the attorneys for the Fore River Railroad Corporation and Commission.*'^ 

1919 

the Fore River Shipbuilding Corporation, in regard to their November 29. 
right to maintain private freight tracks across highways at 
grade in Quincy and Braintree, is correct. 

In the first place, it is my opinion that Spec. St. 1918, c. 138, 
authorizing the Fore River Shipbuilding Corporation to sell 
and convey its private property to any domestic railroad cor- 
poration, does not lessen in any way the obligations of the Fore 
River Railroad Corporation, which took over the property in 
question, and that all laws now or hereafter in force which 
controlled the shipbuilding corporation in its management of 
the railroad are equally applicable to the railroad corporation, 
except as such laws may be modified by section 3, relating to 
the expense of abolishing the grade crossing. 

There are two statutes relating specifically to the question 



420 OPINIONS OF THE ATTORNEY-GENERAL. 

at hand. The first is St. 1890, c. 382, as finally amended by 
St. 1912, c. 375, and the other is St. 1892, c. 228, as last 
amended by St. 1906, c. 463, § 22. A first reading of the 1890 
statute would indicate that it was intended to apply to private 
railroads, and apparently the Legislature, when making its 
amendment in 1912, took this view; but an investigation of the 
report of the Railroad Commissioners for 1889, particularly at 
pages 30 and 33, indicates very strongly that the 1890 statute 
was passed for the purpose of safeguarding private crossings on 
all railroads rather than public crossings on private railroads, 
and that the words "for private use" modify, not the word 
"railroad" but the word "crossing." 

The necessity for an act giving the commissioners supervision 
over public grade crossings, general in its character, is referred 
to in the report of the Railroad Commissioners of 1889, at page 
33, and by draft of legislation in regard to grade crossings, at 
page 137, and again in their report of 1891, at page 95. The 
act of 1892, apparently passed for the reasons set forth in the 
reports cited, enumerated specifically the various types of pub- 
lic crossings that might exist, including the one in question. 
There is nothing in any statute that I can find which indicates 
that the word "railroad," as used in the 1892 statute, does not 
include a private railroad. 

It is my opinion, therefore, that the Fore River Railroad 
Corporation is subject to St. 1892, c. 228, as amended, under 
which the Board has the power to limit a public crossing at 
grade for a specified length of time. It seems unnecessary to 
decide whether the same result might be reached under St. 
1890, c. 382, as amended by St. 1912, c. 375. 



HENRY A. WYMAN, ATTORNEY-GENERAL. 421 



Referendum — Existing Law — Effect of Ratification on 
Subsequent Amendment. 

A petition for referendum on an existing law, subsequently amended, suspends 
operation both of the law and the amendment thereto, pending action thereon 
by the voters; and its approval by them carries with it the approval of the 
amendment. 

I acknowledge the receipt of your letter in which you ask the To the 

. , Bank Com 

lollowing question : — 



As the question has been raised whether savings banks and trust com- 
panies having savings departments may pay dividends or interest monthly 
or semi-annually, I respectfully ask your opinion whether chapter 116 of 
the General Acts of 1919, which was suspended by a petition for a referen- 
dum, and which I understand was afterwards ratified by the referendum 
vote, is the rule, or whether chapter 326 of the General Acts of 1919, which 
is an amendment of said chapter 116, is the rule? 

The effect of the petition for the referendum on Gen. St. 1919, 
c. 116, was to suspend the operation of the law pending the action 
of the voters thereon. They having acted, and, as I understand, 
approved the law, it takes effect thirty days after such approval. 

This law had not in the meantime been repealed. Gen. St. 
1919, c. 326, amended it. Suspending the operation of the 
original act suspended the operation of the amendment. The 
approval of the original act carried with it the approval of the 
amendment. 

The legislative control of the enactment or amendment of 
laws is not affected by the referendum provisions of the Consti- 
tution; the operation of a given law is alone affected by the 
referendum. It may or may not become effective, as the voters 
act. When they do act, the status of the law is fixed, unless 
and until the Legislature, as it may, again acts with reference 
to the same subject-matter. 

Gen. St. 1919, c. 116, as amended by Gen. St. 1919, c. 326, 
will be in force Dec. 4, 1919. 



missioner. 

1919 
November 29. 



422 OPINIONS OF THE ATTORNEY-GENERAL. 



Joint School Committee — Election of Superintendent — 
Length of Term. 

Under R. L., c. 42, § 44, as amended by St. 1911, c. 384, § 1, a superintendent of 
schools elected by a joint school committee of a school union must be employed 
for a three-year term, regardless of when the employment begins. 



To the Com- 
missioner of 
Education. 

1919 tions: — 

December 3. 



You have requested an opinion on the following proposi- 



Can a joint school committee, acting in December of this year, elect a 
superintendent of schools for a three-year term to begin July 1, 1920? 

Can said committee elect a superintendent of schools to serve tempo- 
rarily; that is, from Jan. 1, 1920, to July 1, 1920? 

The law relating to this subject is incorporated in R. L., c. 
42, § 44, as amended by St. 1911, c. 384, § 1, and is as fol- 
lows : — 

The joint committee shall annually, in April, meet at a day and place 
agreed upon by the chairman of the committees of the several towns 
comprising the union, and shall organize by the choice of a chairman and 
secretary. They shall employ a superintendent of schools, determine the 
relative amount of service to be performed by him in each town, fix his 
salary, apportion the amoimt thereof to be paid by the several towns and 
certify it to each town treasurer. Such superintendent of schools shall be 
employed for a term of three years, and his salary shall not be reduced 
during such term. 

This law relates to the selection of a superintendent of schools 
by joint school committees of school unions, and is not specific 
on the points about which you inquire. 

It is my opinion that a superintendent must be employed 
for a three-year term, regardless of when the employment 
begins. 



HENRY A. WYMAN, ATTORNEY-GENERAL. 423 



Minors — Hazardous Employment — Manual Training in 
Educational Institution. 

Under St. 1913, c. 831, § 27, the Board of Education or the school committee of a 
city or town must, on an application of the Co-operative School of Engineering 
of Northeastern College for approval of the manual training or industrial edu- 
cation in that school, give its approval or disapproval. 

You have requested my opinion upon the following set of ^°s^|jfn^^" 
facts: The Co-operative School of Engineering of Northeastern ^'^"J^i9°°- 
College conducts courses in which pupils are alternately in I'^^f^'S. 
school and in employment. Minors are thus sometimes en- 
gaged in hazardous employments forbidden except as specially 
provided for in St. 1913, c. 831. You have directed my atten- 
tion to section 27 of said chapter, which provides, in part, that 
*' nothing in this act shall be construed ... to prevent minors 
of any age from receiving manual training or industrial educa- 
tion in or in connection with any school in the commonwealth 
which has duly been approved by the school committee or by 
the board of education." You have asked the three following 
questions: — 

1. Are pupils in the co-operative courses of the Co-operative School of 
Engineering of Northeastern College receiving manual training or indus- 
trial education in or in connection with a school, as contemplated by said 
section 27? 

2. Is said Co-operative School of Engineering the type of school contem- 
plated by section 27, and therefore one which either school committees or 
the Board of Education could approve as such, thereby waiving the pro- 
visions of the child labor law? 

3. Is approval of such a school as the said co-operative school, for the 
purposes of said section 27, a responsibiUty imposed by the statutes upon 
the Board of Education? 

Your three questions are all to be answered in the affirmative. 
In my opinion, the provisions of section 27 require that when an 
educational institution makes application to a school committee 
or to the Board of Education for approval of its manual train- 
ing or industrial education in that institution, it is incumbent 
upon the school committee or the Board of Education, as the 
case may be, to give its approval or disapproval. 



424 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the 

Treasurer and 
Receiver- 
General. 
1919 
December 9. 



Cities and Towns — Sale of Intoxicating Liquors — 
Payment of Part License Fee to Commonwealth. 

LTnder the provisions of R. L., c. 100, § 2, malt liquors, cider and light wines con- 
taining more than 1 per cent alcohol by volume at 60" F. are intoxicating 
liquors, and under section 45 of said chapter the treasurer of a town issuing a 
license for the sale of such liquors is obliged to pay one-fourth of all of the 
moneys received for said licenses to the Treasurer and Receiver-General of 
the Commonwealth. 

You have requested my opinion on a question as to the 
appHcation of R. L., c. 100, § 45, under which cities and towns 
have paid into the treasury of the Commonwealth one-fourth 
of the amount received for Hcenses for the sale of intoxicating 
Hquors. You state that the town treasurer of Maynard has 
paid one-fourth of a certain Hcense under protest, and has for- 
warded to you a copy of a Hcense issued by the board of select- 
men of that town, the town claiming that it is not a license for 
the sale of intoxicating liquors within the language of section 45. 

The license issued reads as follows: — 

This is to certify that the board of selectmen of the towoa of MajTiard, 

Mass., have granted a license to , doing business at 

, to sell or expose or keep for sale malt liquors, cider 

and light wines (containing not more than 15 per cent of alcohol) to be 

drunk on the premises. 

You desire to know whether treasurers of cities and towns 
are now obliged to pay to the Treasurer and Receiver-General 
one-fourth of the amount of money received for licenses for the 
sale of intoxicating liquors. 

R. L., c. 100, § 45, provides as follows: — 

The treasurer of a city or town shall, within thirty days after the receipt 
of money for licenses for the sale of intoxicating liquors, make a return of 
the amount thereof to the treasurer and receiver general and at the same 
time shall pay to him one-fourth of the amount so received, and for neglect 
thereof he shall pay interest at the rate of six per cent per annum on the 
amount of such receipts from the time they become due until they are paid. 

Section 2 of said chapter provides: — 

Ale, porter, strong beer, lager beer, cider, all wines, any beverage which 
contains more than one per cent of alcohol, by volume, at sixty degrees 



HENRY A. WYMAN, ATTORNEY-GENERAL. 425 

Fahrenheit, and distilled spirits, shall be deemed to be intoxicating liquor 
within the meaning of this chapter. 

In view of the fact that these provisions of law still stand 
upon our statute books, treasurers of cities and towns are 
obliged, under section 45, to pay to you one-fourth of all money 
received for licenses for the sale of intoxicating liquors. 



Private Detective — Definition of Term. 

By the words "private detective," as used in Gen. St. 1919, c. 171, is meant any 
person who generally engages in or solicits the business of seeking out and dis- 
covering evidence for use in civil or criminal proceedings. 

You have asked me for a definition of the words "private Tothe 
detective" as used in Gen. St. 1919, c. 271, which forbids any Pubil^^safety! 
person, firm or corporation to engage in the business of, or December 9. 
solicit business as, a private detective, or the business com- 
monly transacted by a private detective," without first obtain- 
ing a license as provided in said act. 

The popular conception of a detective is a person whose occu- 
pation it is to seek out and discover, more or less secretly, evi- 
dence concerning the character or conduct of third persons. 
The popular conception of a private detective is a person en- 
gaged unofficially in this occupation. The act apparently uses 
the words "private detective" in their popular sense. The 
language of the act, however, lays stress on engaging in or 
soliciting such business. I am of opinion that a mere sporadic . 
seeking of such evidence or information should not be held to 
be within its terms. This view is strengthened by the con- 
siderable license fee required (§ 5, $100), and further b}^ the 
fact that a person who desires to obtain a license must have 
had three years' experience as an investigator (§2). Gen. St. 
1919, c. 271, repeals and replaces R. L., c. 108, §§35 and 36. 
Section 35 authorizes certain municipal officials to license a 
private citizen "to act as a private detective for the detection, 
prevention and punishment of crime." In view of the broader 



426 



OPINIONS OF THE ATTORNEY-GENERAL. 



language used in Gen. St. 1919, c. 271, the definition of detec- 
tive can no longer be restricted to the collection of information 
"for the detection, prevention or punishment of crime." It 
extends to civil proceedings. 

As a practical rule, but by no means as an exhaustive and 
conclusive definition, I suggest that any person who generally 
engages in or solicits the business of seeking out and discovering 
evidence for use in civil or criminal proceedings will usually 
be found to be within the act. I do not feel, however, that a 
cast-iron rule can be laid down. 



Fire Insurance Companies — Right to do more than One 
Class of Business — Reinsurance. 



To the 

Insiirance 

Commissioner. 

1919 
December 23. 



Under St. 1907, c. 576, § 34, a foreign insurance company, admitted to this Com- 
monwealth since the date mentioned therein, is not permitted to carry on more 
than one class or combination of classes of business mentioned therein. 

A purely mutual fire insurance company may not qualify to issue policies by a 
contract of reinsurance by it of the business of another existing company. 
Before such a company may issue policies it must have subscriptions for at 
least four hundred separate risks of direct insurance upon property located 
within the Commonwealth, and amounting to not less than $1,000,000. 

You request my opinion upon certain questions which have 
arisen in the administration of the statutes relating to insurance 
companies. 

You call attention to the classes of business established by 
St. 1907, c. 576, § 32, with its amendments, and to the various 
combinations of those classes permitted in the case of foreign 
insurance companies by section 34. You state that — 

An application has been filed by a company to transact business specified 
in clauses 5, 6, 8 and 11 of section 32. This combination is not set forth in 
section 34, and the questions are : — 

(1) Are the combinations set forth in section 34 the only combinations 
of classes of business which a foreign company may be admitted to 
transact? 

(2) Is the specific combination which the company in question desires 
to be admitted to transact permissible under the law? 



HENEY A. WYMAN, ATTORNEY-GENERAL. 427 

Section 34 contains the following provision:' — 

No domestic insurance company shall transact any business other than 
that specified in its charter or agreement of association and no foreign 
insurance company admitted to this commonwealth prior to May thirty- 
first, eighteen hundred and eighty-seven, shall transact any other kind of 
business than it had been authorized to transact prior to that date, and no 
foreign insurance company admitted since said date shall transact more 
than one class or kind of business herein, except that a domestic company 
and, if its charter permits, and not otherwise, any admitted foreign com- 
pany may transact. 

Then follow numerous specifications of combinations of classes 
of business permitted to such companies, with a statement of 
the authorized capital to be required in certain instances. 

The provision of this section that "no foreign insurance com- 
pany admitted since said date shall transact more than one class 
or kind of business herein, except that ... if its charter per- 
mits, and not otherwise, any admitted foreign company may 
transact" the specified combinations of classes of business, 
plainly limits the permissible combinations to those thus speci- 
fied. The combination to w^hich you refer is not authorized by 
this section, and therefore a foreign company may not be ad- 
mitted to transact such business in this Commonwealth. 

You further inquire if, in determining whether a purely mu- 
tual fire insurance company has complied with the conditions 
established by St. 1907, c. 576, § 42, so as to permit it to is§ue 
policies, consideration can be given to the reinsurance by it 
of the business of another existing company. This section pro- 
vides in part as follows : — 

No policy shall be issued by a purely mutual fire insurance company 
organized subsequent to the twenty-third day of April in the year eighteen 
hundred and ninety-four, nor by a mutual fire insurance company with a 
guaranty capital of less than one himdred thousand dollars, until not less 
than one million dollars of insurance, in not less than four hundred separate 
risks upon property located in this commonwealth, has been subscribed 
for and entered on its books. No pohcy shall be issued under the provi- 
sions of this section until a list of the subscribers for insurance, with such 
other information as the insurance commissioner may require, shall have 
been filed at the insurance department, nor imtil the president and secre- 



428 OPINIONS OF THE ATTORNEY-GENERAL. 

tary of the company shall have certified under oath that every subscription 
for insurance in the list so filed is genuine and made with an agreement 
with every subscriber for insurance that he will take the policies subscribed 
for by him within thirty days of the granting of a license to the company 
by the insurance commissioner to issue policies. If such officers shall take 
a false oath relative to such certificate they shall be guilty of perjury. 

A contract of reinsurance is not a contract of insurance upon 
property. See II Op. Attys.-Gen. 157. It is rather a contract 
to insure, in whole or in part, the contractual risk assumed by 
the ceding company. It is merely an agreement to indemnify 
that company against loss upon its contracts. Thus it cannot 
be said that a contract for the reinsurance of the business of 
another company consisting of various separate risks of direct 
insurance assumed by it is a contract covering "separate risks 
upon property." Nor is an arrangement with another com- 
pany for the reinsurance of its business in any proper sense of 
the term a "subscription for insurance" within the meaning of 
this section. In my opinion, this statute contemplates that the 
subscriptions for insurance which must be obtained before a 
mutual company may issue policies shall be subscriptions for 
four hundred separate risks of direct insurance upon property 
located within the Commonw^ealth. Thus, in my judgment, a 
company may not qualify to issue policies by a contract of 
reinsurance of the character stated by you. 



HENRY A. WYMAN, ATTORNEY-GENERAL. 429 



Taxation — Exemption — Merchant Marine — Arrest 
FOR Nonpayment of Taxes — Administrator, Execu- 
tor, Trustee in Bankruptcy. 

Gen. St. 1919, c. 9, exempting inhabitants of this Commonwealth who have served 
in the military and naval forces of the United States in the World War from 
the payment of poll taxes, does not apply to members of the merchant marine. 

A trustee in bankruptcy is an officer in the bankruptcy court. He cannot be 
arrested for the non-payment of a tax due from the estate. 

Neither an executor nor an administrator can be arrested for non-payment of a 
tax assessed in the estate or to him as said executor or said administrator, 
except as provided for in St. 1909, c. 490, Pt. II, § 34. 

You have asked my opinion upon certain questions with to the Com- 
reference to which you have been requested to advise local Corporations 

and Taxation. 

assessors and collectors of taxes. ^ i9i9 „, 

December 24. 

Your first question is as follows: — 

Under Gen. St. 1919, c. 9, do those who served in the merchant marine 
and coast guard come within its provisions as to exemption from pajiiient 
of poll taxes; and also, if any poll taxes have been paid by those who are 
entitled to an exemption, must a reftmd be made, and from what money 
may it be repaid? 

The statute to which you refer exempts from the payment of 
poll taxes assessed for 1917 and a certain period thereafter 
"inhabitants of this commonwealth who were engaged in the 
military or naval service of the United States in the present 
war before the passage of this act, and those who hereafter 
engage in said service during said war." 

The question is, therefore, whether persons who served in 
the merchant marine and coast guard were in the military or 
naval service of the United States. 

It is plain that those who served in the merchant marine 
were not in such service. They were not connected with the 
military or naval forces of the United States, but were engaged 
in purely merchant marine service under the United States 
Shipping Board. They have not been regarded as in the mili- 
tary or naval service for the purposes of Gen. St. 1919, c. 283, 
granting the so-called $100 bonus or gratuity. They therefore 
do not come within the provisions of this act. 



430 OPINIONS OF THE ATTORNEY-GENERAL. 

At the beginning of the war the coast guard was in the service 
of the Treasury Department, but during the war it was taken 
over by the Navy Department, and therefore its members must 
be regarded as in the naval service of the United States. They 
have been so considered in the administration of the bonus or 
gratuity statute above referred to. In my opinion, they come 
within the exemption from poll taxes established by the statute 
under discussion. 

If poll taxes have been assessed upon, and paid by, any per- 
sons entitled to exemption under this statute, their remedy 
seems to be the ordinary one granted by the statutes for the 
abatement of taxes. They must apply to the local assessors, 
and their applications must be dealt with in the same manner 
and subject to the same conditions as all other applications for 
abatement. 

Your second question is as follows : — 

Can an administrator, executor or assignee or trustee in bankruptcy be 
arrested for a tax assessed directly to them in their capacity as such admin- 
istrator, etc.? 

So far as your question relates to the right to arrest execu- 
tors and administrators, it depends solely upon the interpreta- 
tion of our statutes. The right to arrest is, of course, an ex- 
traordinary remedy, and is not regarded as granted unless the 
grant clearly appears by the terms of the statute. An executor 
or administrator acts purely in a representative capacity, and, 
in the eyes of the law, is an entirel}^ different person from him- 
self individually. He is not ijersonally liable for taxes assessed 
upon the estate or to him as executor or administrator except 
under the conditions prescribed in St. 1909, c. 490, Pt. II, § 34, 
but if those conditions exist he is " personally liable therefor as 
for his own tax." The question is not free from doubt, but I 
am of opinion that this provision for personal liability would 
be construed by the court to bring an executor or administrator 
in a proper case within the scope of section 27 of the same act, 
provided, of course, the conditions of section 27 are also clearly 
satisfied. It seems proper to add, however, that the remedy of 



HENRY A. WYMAN, ATTORNEY-GENERAL. 431 

arrest involves considerable personal peril to the collector. If 
the conditions which justify an arrest do not exist, and the arrest 
is none the less made, the collector is Hable personally in tort. 
Collectors should be cautioned that the remedy of arrest is in 
this case peculiarly dangerous. 

A trustee in bankruptcy is an officer of the courts of the 
United States. In my opinion, it is not within the power of a 
collector of taxes to arrest him for non-payment of taxes nor 
in any other way to interfere with his performance of the duties 
entrusted to him by the court. The rights of the tax collector 
must be enforced by appropriate proceedings in the bankruptcy 
court. In re Tyler, 149 U. S. 164. 

Your third question is as follows: — 

Do the labor laws of the Commonwealth apply to a tax collector or to the 
clerks employed in his department so far as the eight-hour law applies? 

St. 1909, c. 490, Pt. Ill, § 5, imposes the duty of advising 
local assessors and collectors upon you in the following lan- 
guage: — 

He shall give his opinion to assessors and collectors upon any question 
arising under any statute relating to the assessment and collection of 
taxes, and may advise and consult with the attorney-general upon all 
questions arising under this provision. 

In my judgment, this question is not a question relating to 
the assessment and collection of taxes, within the meaning of 
this provision. Accordingly, it is a question with reference to 
which you have no duty to advise local assessors and collectors, 
and I do not deem it to be my duty to express any opinion 
with reference to the matter. Tax collectors should be advised 
upon this question by their city or town solicitors. 



432 OPINIONS OF THE ATTORNEY-GENERAL. 



Board of Parole — House of Correction — Release or 
Parole of Prisoners. 

A prisoner sentenced to the house of correction, the terms of which are maximum 
and minimum, can be released under the provisions of R. L., c. 225, § 121, 
as amended by St. 1902, c. 227, and St. 1912, c. 158. St. 1911, c. 451, does not 
apply. 

Under R. L., c. 221, § 123, the county commissioners, except in the county of 
Suffolk, where the authority is conferred upon the commissioner of penal 
institutions of the city of Boston, are authorized to discharge a prisoner from 
the house of correction. 

The Board of Parole of the Department of Correction has no jurisdiction over 
prisoners serving in the house of correction save in the special case provided 
for in Gen. St. 1918, c. 214. 



p^tment^of I beg to submit the following reply to your letter containing 

Correction. 

1919 
December 26. 



Correction. .1 j n • 

1919 the lollowing inquiries: 



The Board of Parole has before it for consideration a matter regarding 
which it requires further legal authority, and respectfully requests an opin- 
ion on the following questions : — 

(1) When a prisoner is sentenced to a house of correction on a sentence, 
the terms of which are maximum and minimum, under what statute would 
he be released? 

(2) When a sentence, the terms of which are maximum and minimum, 
is being served in a house of correction, this being a sentence the terms of 
which are similar to those imposed on a prisoner in the State Prison, does 
the law, as defined in St. 1911, c. 451, apply to this sentence? Would a 
sentence of this nature, being served in a house of correction, in your opin- 
ion be defined in R. L., c. 220, § 19? Under the statute would the Massa- 
chusetts Board of Parole have authority to release on parole a prisoner 
sentenced to the house of correction, as above, on a maximum and mini- 
mum sentence? 

If the said Board has not authority to release, by whom can the said 
release be granted? 

1. R. L., c. 225, §§ 114, 115, 117 and 118, authorized the 
Prison Commissioners to issue permits to be at liberty to 
prisoners confined in the State Prison, in the Massachusetts 
Reformatory and in the Reformatory Prison for Women. 

St. 1913, c. 829, § 1, created a board of parole for the State 
Prison and the Massachusetts Reformatory. Section 2 created 
a board of parole for the Reformatory for Women, and section 
3 transferred to and vested in the parole boards for said institu- 



I 



HENRY A. WYMAN, ATTORNEY-GENERAL. 433 

tiotis all the powers of the Prison Commissioners relating to 
the granting of permits to be at liberty from the State Prison, 
the Massachusetts Reformatory and the Reformatory for 
Women. 

Gen. St. 1916, c. 241, § 1, abolished the Prison Commis- 
sioners and the boards of parole for the State Prison, the Mas- 
sachusetts Reformatory and the Reformatory for Women, and 
transferred all the rights, powers, duties and obligations of said 
boards of parole to the board of parole of the Massachusetts 
Bureau of Prisons, established by that act, which board of 
parole was made the lawful successor of said former boards 
of parole. Section 5 further recognized that the said board of 
parole of the Massachusetts Bureau of Prisons had authority 
to grant permits to be at liberty "from the state prison, the 
Massachusetts reformatory, the prison camp and hospital and 
the reformatory for women." 

Gen. St. 1918, c. 214, § 1, provided as follows: — 

The power to grant a permit to be at liberty to any person sentenced 
or transferred to the state prison, to the Massachusetts reformatory, to the 
reformatory for women, or to the prison camp and hospital, and to revoke, 
revise, alter or amend the same, shall remain in the board of parole of the 
Massachusetts bureau of prisons, created by chapter two hundred and 
forty-one of the General Acts of nineteen hundred and sixteen, until the 
expiration of the maximum term of the sentence for the service of which the 
person was so committed or transferred, notwithstanding the subsequent 
transfer of such person to any other institution. 

Gen. St. 1919, c. 350, §§ 1, 82 and 85, creates a Department 
of Correction, abolishes the Massachusetts Bureau of Prisons 
and transfers to the Board of Parole of the Department of 
Correction the duties of the former Board of Parole of the Bu- 
reau of Prisons. In my opinion the Board of Parole of the 
Department of Correction is, with respect to permits to be at 
liberty from the State Prison, the Massachusetts Reformatory, 
the Prison Camp and Hospital and the Reformatory for 
Women, the successor of the Prison Commissioners, of the 
several boards of parole created by St. 1913, c. 829, and of the 
board of parole for those institutions created as a part of the 



434 OPINIONS OF THE ATTORNEY-GENERAL. 

Massachusetts Bureau of Prisons by Gen. St. 1916, e. 241. It 
has no jurisdiction to grant permits to be at Hberty to prisoners 
in houses of correction, except in the special case provided for 
in Gen. St. 1918, c. 214, namely, where a prisoner sentenced 
or transferred to one of the four institutions above named is 
later committed or transferred to a house of correction. As 
St. 1911, c. 451, gives to "the prison commissioners a special 
authority to grant permits to be at liberty from the state yrison 
to a prisoner held therein" it cannot, in my opinion, be con- 
strued to apply to prisoners in houses of correction. 

2. The provision for release of persons confined in a jail or 
house of correction is contained in R. L., c. 225, § 121, as 
amended by St. 1902, c. 227, and St. 1912, c. 158, which reads 
as follows: — 

A probation officer may, with the consent of the county commissioners, 
or, in the county of Suffolk, of the penal institutions commissioner of the 
city of Boston, investigate the case of any person who is imprisoned in 
jail or house of correction upon a sentence of not more than six months, 
or upon a longer sentence of which not more than six months remain unex- 
pired, or for failure to pay a fine, for the purpose of ascertaining the prob- 
ability of his reformation if released from imprisonment. If, after such 
investigation, he recommends the release of the prisoner, and the court 
which imposed the sentence, or, if the sentence was imposed by the superior 
court, the district attorney, certifies a concurrence in such recommendation, 
the county commissioners or the penal institutions commissioner may, if 
they consider it expedient, release him upon probation, upon such terms 
and conditions as they may prescribe and may require a bond for the fulfil- 
ment of such conditions. The surety upon any such bond may at any time 
take and surrender his principal, and the county commissioners or the penal 
institutions commissioner may at any time order any prisoner released by 
them upon probation to return to the prison from which he was re- 
leased. The provisions of this section shall not apply to persons held 
upon sentence of the courts of the United States. 

Here the prisoner is released "upon probation" instead of 
upon a permit to be at liberty. The bodies authorized so to 
release are the county commissioners, except in the county of 
Suffolk, where the authority is conferred upon the penal insti- 
tutions commissioner of the city of Boston. The same bodies 



HENRY A. WYMAN, ATTORNEY-GENERAL. . 435 

are authorized by R. L., c. 225, § 123, to "discharge" a prisoner 
from the house of correction. These express grants of juris- 
diction over prisoners confined in a house of correction are a 
further indication that the Board of Parole of the Department 
of Correction has no jurisdiction over such prisoners save in 
the case provided for in Gen. St. 1918, c. 214. 



Schools — Transportation of Pupils living on Islands — 
Authority of Department of Education and of Cities 
and Towns. 

Unless some statute requires it, a city or town need not provide transportation to 
and from school, or board in lieu thereof, for children of school age living upon 
islands within such city or town which are not provided with schools. R. L., 
c. 25, § 15, is permissive, not mandatory. 

The Department of Education, which under Gen. St. 1919, c. 350, § 56, is the 
successor of the State Board of Education, is authorized by Gen. St. 1919, 
c. 292, § 5, if the facts warrant it, to furnish such transportation in all cases 
where some statute does not place this duty upon the city or town. 

Gen. St. 1919, c. 292, § 9, authorizes the Department of Education, in a proper 
case, to require a town to furnish transportation to and from school to chil- 
dren living upon islands within the town which are not provided with schools. 

You ask when a city or town must provide transportation TotheCom- 
to and from school, or board in lieu thereof, for children of Educatkni" 
school age living upon islands within the Commonwealth which Ja nuary 8. 
are not provided with schools, and when, under Gen. St. 1919, 
c. 292, § 5, the Department of Education may do so. 

In my opinion, only a general or special statute can impose 
this duty upon a city or town. Newcomb v, Rockport, 183 
Mass. 74; Davis v. Chilmark, 199 Mass. 113. R. L., c. 25, § 15, 
is permissive only, not mandatory. Newcomb v. Rockport, 183 
Mass. 74. It would seem, therefore, that the Department of 
Education, as the successor of the State Board of Education 
under Gen. St. 1919, c. 350, § 56, is authorized by Gen. St. 1919, 
c. 292, § 5, if the facts warrant, to furnish such transporta- 
tion or board in all cases where some statute does not place 
this duty upon the city or town. 

In my opinion. Gen. St. 1919, c. 292, § 9, authorizes the 



436 



OPINIONS OF THE ATTORNEY-GENERAL. 



State Board of Education (and so the Department of Educa- 
tion as the successor of that Board) to "require the town to 
furnish transportation" when the circumstances therein defined 
exist. I see no reason why this section should not apply to 
children of school age upon islands which are not provided with 
schools. I note, however, that this section apparently applies 
to towns alone (exclusive of cities), and that it contains no 
provision for requiring a town to furnish board in lieu of trans- 
portation. 



Automobiles — Registration — Substitution of Motors 
Change in Maker's Number. 



To the De- 
partment of 
Public Works. 

1920 
January 13. 



Where an automobile has been registered, and where the maker's number was 
affixed to the motor therein, and subsequently another motor is substituted, 
with the result that the maker's number on the substituted motor would not 
then correspond with the maker's number on the registration card, there 
should be issued a new registration card bearing the maker's number appearing 
upon the substituted motor. 

You ask my opinion upon the following facts: A company 
owns a number of Ford cars of different types which have been 
registered. You desire to know what should be done relative to 
registration in case the company places a spare motor in one of 
the cars now registered. 

Gen. St. 1919, c. 294, § 2, provides that the application for 
the registration of a motor vehicle shall contain, among other 
things, the number, if any, affixed by the maker. I under- 
stand that in Ford automobiles the maker's number is affixed 
to the motor, so that if the company in question should sub- 
stitute the spare motor in one of their cars, the maker's number 
thereon would not then correspond with the maker's number 
on the registration card. As the maker's number is, perhaps, 
the most important means of identification, I am of the opinion 
that when the company places its spare motor in one of its cars 
now registered, it should inform you of the fact, giving you 
both the maker's number that appears on the registration card 
of the car, and also the maker's number that appears on the 



HENRY A. WYMAN, ATTORNEY-GENERAL. 437 

spare motor, and at the same time return to you the registra- 
tion card. Your Department should then issue in place thereof 
a new registration card bearing the maker's number appearing 
upon the spare motor. 



Electric Company — Producing and Distributing Com- 
pany' — Substitution for Producing Plant of Con- 
tract TO PURCHASE CuRRENT — ^ SaLE OF PlANT WITHOUT 

Consent of Legislature — Conditional Sale. 

A producing and distributing electric company may substitute for its producing 
plant a proper and sufficient contract for the purchase of electricity. 

A producing and distributing electric company which substitutes for its producing 
plant a proper and sufficient contract for the purchase of electricity need not 
retain such plant in order to guard against a failure of the selling company 
to furnish electricity according to its contract, if such failure is not reasonably 
to be anticipated. 

If a producing and distributing electric company has substituted for its producing 
plant a proper and sufficient contract for the purchase of electricity, a sale 
of such plant without first obtaining the consent of the Legislature does not 
violate St. 1914, c. 742, § 51. 

If sale of such plant be proper, St. 1914, c. 742, § 51, does not forbid a contract 
of conditional sale which provides that immediate possession shall be given 
to the purchaser, who is bound to pay the purchase price by instalments dur- 
ing a term of years. 

You request my opinion upon the following matter : — To the De- 

partment of 

The Worcester Suburban Electric Company is a corporation duly ^" ^920^*'^'*'®* 
established under the General Laws, and is an electric company within the ^^ ""^y ^^- 
definition set forth in section 1 of chapter 742 of the Acts of the year 1914. 
The management of the company since the spring of 1914 has been in the 
hands of officers, a majority of whom are identified with A & Co., Inc. 
Prior to that time a controUing interest was owned by B & C, Inc., who 
are identified with the New England Power Company (formerly Connecti- 
cut River Transmission Company) and its affiliated interests. B & C, Inc., 
on March 31, 1914, in connection with and as part of the transaction 
hereinafter described, sold to A & Co., Inc., 5,793 out of the 6,000 shares of 
stock then outstanding. At the same time, and as a part of the same 
transaction, the company executed the following instruments with the 
Connecticut River Transmission Company: — 

1. For the sale of electricity by the transmission company to the 
electric company, referred to as the contract for primary electricity. 

2. For the distribution of electricity by the electric company for the 
transmission company, referred to as the distribution agreement. 



438 OPINIONS OF THE ATTORNEY-GENERAL. 

3. For reserving the steam station of the electric company at Uxbridge 
for the use of the transmission company, referred to as the agreement for 
reserving steam plant. 

4. Lease of said steam station by the electric company to the trans- 
mission company. 

The transaction in question has never been expressly authorized by the 
General Court. Is this transaction in violation of the terms of section 51 
of chapter 742 of the Acts of the year 1914? 

Reduced to its lowest terms, the question raised by these four 
instruments seems to be: If a producing and distributing 
electric company replaces its producing plant by a thirty-year 
contract for the purchase of sufficient current, and thereupon 
sells such producing plant without obtaining the consent of the 
Legislature, does it violate St. 1914, c. 742, § 51? 

St. 1914, c. 742, § 51, provides: — 

A corporation which is subject to the provisions of this act shall not, 
except as is otherwise expressly provided, transfer its franchise, lease its 
works or contract with any person, association or corporation to carry 
on its works, without the authority of the general court. 

This statute does not in terms prohibit an electric company 
from selling its works. An electric company authorized to 
furnish electricity to the public is charged with a public duty 
which it must discharge within the limits of its reasonable 
ability. It may not voluntarily disable itself to perform that 
duty. The Supreme Judicial Court has held that a sale of its 
physical property which would so disable it is an evasion of the 
act and unlawful without legislative consent, even though the 
franchise is not transferred. On the other hand, the Supreme 
Judicial Court has also held that an electric company might 
make an agreement for division of territory with another elec- 
tric company, and might lawfully sell that portion of its dis- 
tributing system which lay within the territory so ceded by it. 
Taking these two cases together, the legality of a sale of so 
much of the physical property of an electric company as 
relates to its producing plant, without legislative consent, ap- 
pears to depend upon whether it materially impairs the ability 
of the selling company to discharge its duty to the public. 



HENRY A. WYMAN, ATTORNEY-GENERAL. 439 

I find nothing in the act which requires an electric company 
to produce the current which it sells and distributes to the 
public. On the contrary, section 1 defines an electric company 
as follows : — 

"Electric company" means a corporation organized under the laws of 
this commonwealth for the purpose of making . . . and selling, or dis- 
tributing and selling^ electricity within this commonwealth, . . . 

Moreover, I am informed that many electric companies in 
this Commonwealth are not producing companies, but instead 
rely upon contracts for the purchase of current. In my 
opinion, the terms of the act and this common practice both 
indicate that an electric company may lawfully rely for the 
performance of its public duty upon an honest and apparently 
adequate contract for the purchase of current. As an incident 
of its public duty it is not required to produce the current 
which it furnishes to the public, or even to install a plant as an 
additional safeguard against an unanticipated failure of the 
selling company to supply current. 

If a distributing electric company may lawfully rely upon 
an honest and apparently adequate contract as a source of 
supply, I see no reason why a company which has produced 
its own current may not lawfully substitute an adequate supply 
contract for such producing plant. The original decision of this 
question would seem fairly to lie in the corporate discretion of 
such company. It constitutes, as was said in JJ^ekl v. Gas 
Commission, 197 Mass. 556, "a detail of administration which 
is not in violation of law." If, however, the supply contract 
should not prove adequate to enable the company to discharge 
its public duty, there is ample power in your Board, under the 
law, to compel due performance thereof. So long as the com- 
pany duly and adequately furnishes current to the public, I 
find nothing in the act which prescribes the means by which 
that duty shall be performed. 

If a distributing company has made an honest and appar- 
ently adequate supply contract, so that it no longer requires 
its producing plant to enable it to discharge its public duty, 



440 OPINIONS OF THE ATTORNEY-GENERAL. 

I find nothing in the act which requires the retention of the 
plant as protection against an unanticipated failure of the 
selling company to supply current. But if a distributing 
company which has made an honest and apparently adequate 
supply contract is not required to retain its plant, the terms 
upon which it will dispose of it would seem fairly to lie within 
its corporate discretion. So far as discharge of its public duty 
is concerned, it would seem to be immaterial whether the sale 
is a present sale for cash, or a long-term conditional sale upon 
payment by instalments. In either case the company is merely 
disposing of property which it no longer requires to enable it 
to discharge its public duty. 

There is a clear duty devolving upon the officers of the cor- 
poration thus selling its producing plant to guard against any 
failure of the contracting producing company to perform its 
contract, which should be reasonably anticipated, and also to 
see that before the termination of the contract the selling 
company is so circumstanced as to continue its full functions 
as a public service company. It is not so much a question of 
law as a question of fact that would govern in this particular. 

Apply the foregoing to the question submitted: The Worces- 
ter Suburban Electric Company, on March 31, 1914, made a 
contract with the Connecticut River Transmission Company 
for the purchase of primary electricity during a period of thirty 
years. There is no suggestion that this contract has not proved 
entirely sufficient to enable the electric company to discharge its 
duty to the public. By reason of this contract the steam plant 
of the electric company was no longer needed by the electric 
company as a source of its supply. As a part of the same 
transaction, the electric company, by the so-called reservation 
agreement, made a conditional sale of this steam plant to the 
transmission company, the purchase price to be paid in instal- 
ments during a period of twenty years, and the purchaser being 
put in immediate possession and control. If under these con- 
ditions the electric company might have sold outright for cash 
and have given immediate possession, I find nothing unlawful 
in giving such possession pending payment of the purchase 



HENRY A. WYMAN, ATTORNEY-GENERAL. 441 

price under a contract of conditional sale. In neither case is 
the ability of the electric company to discharge its public duty 
injuriously affected. Indeed, since, under paragraph 5 of the 
reservation (conditional sale) agreement, the electric company 
may require the transmission company to operate the steam 
plant (materially improved and enlarged, as I am advised) for 
its benefit, the electric company, for twenty years at least, has 
two possible sources of supply instead of one. 

Under these circumstances I do not find that the simultane- 
ous execution of the agreement for the purchase of primary 
electricity and of the contract for the conditional sale of the 
steam plant (reservation agreement) was a violation of St. 
1914, c. 742, § 51, even though the consent of the Legislature 
was not first obtained. There was no transfer of its franchise 
and no contract to carry on its works, within the meaning of the 
statute. The company continues to conduct its own business, 
and is not controlled by outside interests, which, I apprehend, is 
the real purpose underlying the provisions of the statute. To 
prohibit a corporation to "carry on its works" by means of the 
purchase of primary electricity, shown clearly to be advantageous 
to the company and the public, would, in effect, hamper if not 
deprive it of the management of its own affairs. Such is not, in 
my judgment, the natural construction to be given the statute, 
nor by any fair implication can it be so extended. 

The question remains whether the execution on March 31, 
1914, of the twenty-year "lease" of the steam plant in consider- 
ation of an annual rental of $1, and performance of the condi- 
tions of the simultaneous contracts, makes the transaction un- 
lawful. If this "lease" had stood alone it might well be a vio- 
lation of the act. But it does not stand alone. It is, on the 
contrary, a mere incident of the contract of conditional sale, 
of which it is an integral but unnecessary part, to which it adds 
nothing save an instrument which could be recorded as that 
contract could not be. The contract of conditional sale pro- 
vides that throughout the twenty-year period thereof the pur- 
chaser, if he performs all his agreements, "may occupy, operate 
and use the steam plant." Thus, if the "lease" were canceled, 



442 



OPINIONS OF THE ATTORNEY-GENERAL. 



the transaction would not be materially changed. Under these 
circumstances, I regard the lease as immaterial and insufficient 
to taint an otherwise lawful transaction with illegality. 

Moreover, as I am advised, the "lease," as such, has been 
by corporate action canceled, while the conditional sale stands, 
being evidenced by an escrow agreement in such form as to be 
made a matter of record. 



To the 
Bank Com- 
missioner. 

1920 
January 14. 



Savings Deposits • — Int*erest — Earned and Collected. 

Interest collected in advance on a note which runs for a period beyond the date of 
declaring interest on savings deposits is not income earned during the next 
preceding period. 

I have your letter in which you make the following inquiry : — 

If a trust company has collected its interest in advance on a note which 
runs on savings deposits, can such company say that it is income earned 
during the next preceding period? In other words, can I allow a trust 
company to pay a dividend on savings deposits from interest collected 
in advance, on the theory that it has been earned in accordance with 
such statute? 

The statute referred to. Gen. St. 1919, c. 326, provides: — 

Dividends or interest on the deposits in the savings departments of 
trust companies, savings banks and ins