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

OFFICIAL OPINIONS 



THE ATTORNEY-GENERAL 



®ljf dnmmottiufaltli nf iHaBfiarI|«Brtt0 



PUBLISH KI) BY THE 



ATTORlSrEY-GE^ERAL 



Volume VI 

1921-1922 



1 M 8-27 No. 9845 



THIS VOLUME CONTAINS 
THE OPINIONS OF ATTORNEY-GENERAL 

J. A\^EST0:N" ALLEISr, 1921-1922 

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 1926, chapter 46, 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 report of the attorney' general 
as he may deem of public interest or useful for reference." 

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

Freese, Chief Clerk. 

ARTHUR K. READING, 

Attorney-General. 
Boston, January, 1928. 



Table of Statutes cited or referred to in this 

Volume. 



Acts of Congress. 



1916, Aug. 29, c. 416, § 2 



PAGE 

. 382 



39 Stat. 728 . 

40 Stat. 550 . 

40 Stat. 594, 595 

41 Stat. 163, 224 



United States Statutes at Large. 



PAGE 

. 676 

. 673 

. 673 

. 673 



3809 



United States Compiled Statutes. 



PAGE 

. 382 



§ 1891 



United States Revised Statutes. 



United States Constitution 



page 
. 382 



Art. I, §§ 2, 5 . 

Art. I, § 10 

Art. Ill, § 2 

Fed. Reserve Act, 38 Stat., c. 6 . 

Constitution 
Dec. of Rights, art. XXX 
Const., pt. 1, art. XIV 

pt. 2, art. IV 

c. I, § I, art. II 

§ I, art. IV 

§ II, art. Ill 

■ § II, art. IV 

■ § II, art. VII 

§ III, art. X 

c. II, § I, art. IX 

§ I, art. IV 

§ I, art. XI 

c. Ill, art. I 

art. II 

art. Ill 

c. V, § I, art. I 

c. VI, art. I 

art. II 

art. VI 



page 

383 

59, 67, 68, 196, 291, 397, 454, 510, 567, 568 

502 

.97 



OF THE Commonwealth. 



353, 355 



474. 



484, 526, 585, 



200, 215 

120, 
172, 273, 



page 
69, 444 

288, 295 
. 352 
. 182 

609, 681 
. 200 
. 322 
. 200 

359, 470 
. 371 

321, 526 

474, 637 

522, 588 
. 438 

527, 589 
. 327 
. 482 

. no 

. 139 



VIU 



STATUTES CITED. 



Amend'ts Const., art. VIII 

art. XI . 

art. XVII 

art. XVIII 

art. XIX . 

arts. XXI. XXII 

art. XXV 

art. XXXVII 

art. XLIV 

art. XL VI 

art. XL VI, § 2 

art. XL VI, §§ 2 

art. XLVII 

art. XL VIII, pt. Ill, § 2 

art. XLVIII, pt. Ill, §§ 1, 2 

art. XLVIII 

art. XLVIII, pt. Ill, § 2 

art. LIX . 

— art. LXII, § 1 

art. LXIII, § I 

art. LXIV 



Constitution of the Commonwealth — Con. 

PAGE 

358, 588 
. 513 
. 139 

651, 652 

. 361 

345, 346, 347, 348, 349 



120 



416, 



. 377 
. 527 
. 609 

448, 513, 648, 652, 665 
20, 356, 566, 567 
. 651 
252, 587, 586, 585 
. 199 
. 198 
176. 435. 436 
. 198, 199 
60, 67 
. 653, 654 
. 320, 637 
139, 199, 201 



St.vtutes of the Commonwe.vlth. 



1793, 
1802, 
1816, 
1825, 
1826, 
1830, 
1834, 
1849. 
1850. 
1852, 
1853, 
1861, 
1863. 
1868, 
1870, 

1871, 
1876, 

1877, 
1882. 
1884. 
1887, 
1888. 



c. 29 
c. 37 
c. 96 
c. 133 
c. 109. § 
c. 81 
c. 183, § 
c. 56 
c. 88 
c. 154 
c. 312 
c. 183, § 
c. 220 
c. 75 
c. 226 
c. 370, § 2 



§1 



c. 382 
c. 97 
c. 97 
c. 224 . 
c. 139 . 
c. 320 
c. 234, § 3 
c. 413. § 6 
c. 413. § 18 



1. G 



PAGE 

232 

232 

59 

67 
588 
59. 60. 67 
67 
352 
644 
1.35 
205 
25,j26 
107 
267 
80.81 
244 
267 
567 
566, 568 
83 
136 
153, 5.50 
152, 153. 154 
657 
81 



1889, c. 450. § 7 

1893, c. 303 . 

1894, c. 130 . 

c. .333. § 427 

1895, c. 201 

c. 311, § 2 

c. 501, §§ 2, 6 

1896, c. 99 . 

c. 506, § 1 

c. 517, §§ 2. 3, 6 

§§ 2, 3. 6. 23 

1897, c. 197 . 

c. 445, § 2 

c. 467 

c. 506, § 1 

548, § 1 

467 

369 



189S 
1899 
1900 
1901 



1902, 
1903, 



176 
360 
227 
276 
437 



40 



24 



PAGE 

. 217 

. 553 

. 323 

. 323 

. 323 

. 553 

. 349 

. 60 

. 370 

. 350 

. 351 

. 46 

. 667 

. 668 

259. 260 

. 252 

. 551 

. 124 

. 252 

. 125 

. 32 

. 285 

. 61 
60,67 

241, 242 



STATUTES CITED. 



IX 



Statutes of the Commoxwealth — Con. 



1903, 
1904, 



1907, 
1908, 



1909, 



1910, c, 



1911. c 



1912, c, 



1913, c 



438, 
385 
409, 
458, 
150, 
428 
163, 
345 
385 
436, 
377 
563, 
498 
520, 
589, 
590, 
597, 
490, 

504, 

527, 

531 

534, 

281 

399, 

, 656 

, 471, 

, 576 

, 655, 

, 669 

, 158, 

, 700 

. 706, 

. 266 
. 530 
. 577 



144, 145 



§1 

§4 
§1 

§ 1 

pt. Ill, 

§1 
S 1 



§§ 60, 61 

§§4-6 

§ 34 . 

§§ 3, 4 

pt. I, § 23, cl. 7 

pt. Ill, §§ 39-41 

§ 18 

§1 

§1 

§4 

§§ 1-24 

§ 10 

§ 1 

§6 

§§ 14, 16 



32 



§ 1 



c. 673, § 2 

c. 832, § 3, cl. 3 

§ 6, cl. 4 

§ 13 . 

1914, c. 119, §§ 1, 2 

c. 408 . 

c. 494, §§ 1, 2 

c. 504. § 2 

c. 643, § 6 

c. 659 

§§ 1-5 . 



331 



PAGE 

. 26 
. 89 
3 
. 532 
. 680 
. 42 
. 148 
. 577 
. 644 
. 370 
. 81 
. 370 
. 324 
. 658 

624, 625 
. 227 

679, 680 
. 419 
. 94 
. 132 
. 370 
. 125 
7 
. 563 
. 270 
. 17 
. 625 
. 30 

364, 365 
. 129 
. 32 
. 642 
. 237 
. 238 
. 129 
. 548 
, 581, 582 
. 37 
. 38 
. 237 

325, 624 
. 325 

325, 326 
. 38 
. 30 

625, 626 
. 241 
. 83 
. 269 

264, 265 



1914, c. 714, § 1 

c. 721 . 

c. 724 . 

1915 (Gen.) c. 16 

c. 151 

c. 176 

c. 227, 

0. 267. 

1916 (Gen.) c. 37 

c. 268. 

■ c. 269 



§1.2 
32 

1 

§ 5, cl 
§11 
§ 16 



c. 296 

(Spec.) c. 84, 

c. 116 

c. 268 

1917 (Gen.) c. 327, 

c. 342 



§ 1 

§40 
§6 




PAGE 

. 56 
. 106 
. 29 
7 
. 656 
. 372 
. 268 
. 56 
. 158 

160. 368 
. 609 
. 16 
. 610 
. 640 
. 360 

476, 477 
. 175 

.368, 371 
. 374 
63, 252, 583. 586 
. 584 



10 



STATUTES CITED. 



Statutes of the Commonwealth — Con. 



1919 



1920 



(Gen.) c. 283 . 

c. 311 . 

c. 320, § 1 

c. 341 . 

c. 342, § 1 
c. 350 . 

§17 

§ 19 
§ 126 
c. 355 . 
§33 

pt. I. § 2 

c. 365 . 

(Spec.) c. 112, § 1 

c. 187 

c. 219 
c. 253 




147 



PAGE 

. 171, 172 

. 302, 304 

. 108, 603 

. 252 

27, 28 

. 121, 361 

. 470 

. 374 

. 602 

93, 95 

. 93 

. 223 

. 252, 253 

. 354 

. 320, 321 

. 529 

. 138 

324, 325, 326 

. 458, 459 

84 

39 

29 

160 

376 

93 

195, 197 

283 

577 

63, 64 

149, 150, 397 

. 398 

. 354 

. 252 

y 

. 334, 337 
..286 



1921, 



1922 



c. 203 










. 280 




§2 






. 354 


c. 222 








. 633 


c. 296, 


§1 






395, 593, 596 


c. 303 








281, 404, 405 




§ lOD 






. 405 




§ lOE 








. 406 


c. 325, 


§2 








251, 252 


c. 386, 


§§ 1.5 








. 410 


c. 430 










198, 199 


c. 449, 


§3 








. 249 


c. 456, 


§2 








. 593 


c. 460 










324, 326 


c. 461 










. 472 


c. 462 










. 356 


c. 487, 


§1 








472. 473 


c. 499 










245, 301 




§ 2, cl. 


(f), § 


8 




261-262 


c. 502, 


§3 








209, 356 


c. 13 










441, 442 


c. 161 










. 435 


c. 177 










. 632 


c. 316 










581, 582 


c. 341 


§2 








. 630 
629, 630 


c. 349 








545, 546, 547 


c. 371, 


§1 






527, 528, 589 


c. 395, 


§1 






. 590 


c. 403 








. 655 


c. 463 








. 597, 600 


c. 544 




5 


82 


584, 585, 586 


c. 545 


§1 






. 679, 682 
. 640, 666 




§§ 1, 2, 29 




. 661 




§§ 1, 2, 3, 5 




. 664, 665 




§27 






6-4 


0, 641, 680 



1920, c. 85 

1921, c. 54, c. 55 



Resolves. 

PAGE 



444 



1922, c. 33 



PAGE 

648, 649 



c. 7, § 10, cl. 7 
c. 20 



Revised Statutes. 

page 

421, 422 c. 44, § 23 
. 67 



page 
60, 67 



STATUTES CITED. 



XI 



c. 42, § 3 



General Statutes. 
c. 68. § 41 



PAGE 

. 307 



PAGE 

60,67 



Public Statutes. 



c. 38, § 51 
c. 40, § 16 
c. 51 
c. 65, § 17 



PAGE 
. 67 

. 18 
. 267 
. 124 



c. 74. § 4 
c. 77, § 8 
c. 105. §§ 2, 3 



PAGE 

. 307 

322, 323 

60,67 



Revised Laws. 









PAGE 








PAGE 


c. 3, §§ 1-3 201 


c. 96 86 


c. 10. § 8 






. 470 


§17 . 






. 89 


c. 13, § 2 






. 269 


c. 106, §§ 23. 24 






. 307 


§ 35. . 






266, 267 


c. 108. §§ 32-35 






. 152 


c. 19, § 9 






2 


§§ 36, 37 






605, 606 


§23 . 






680, 681 


c. 109. § 3 






60,67 


c. 36, § 55 






. 67 


c. 115 . 






. 554 


c. 50, §§ 1, 15, 20 






265, 266 


§§ 30. 40 






. 339 


§ 10 . 






. 267 


c. 116, § 5 






. 158 


c. 62, § 43 . 






. 125 


§30 . 






. 270 


c. 65, § 15 . 






. 577 


§33 . 






. 158 


c. 69, §§ 1, 2, 8 






. 275 


c. 141, § 19 






. 656 


c. 73. §§ 7. 8 






. 51 


c. 153, § 3 






. 160 


c. 75, §§ 9, 14, 15 






. 281 


c. 198, § 1 






. 137 


§ 14 . 






282, 283 


c. 225, § 91 






. 244 


§ 100 . 






. 257 


§ 112 . 






. 433 


c. 88, § 19 . 






. 135 


§ 121 . 






. 32 


c. 91, § 91 . 






293. 294 











General Laws. 




PAGE 










PAGE 


. 200 


c. 


9, 


§11 . 


. 328 


. 220 


c. 


10, 


§ 16 




. 645 


. 469, 471 


c. 


11. 


§7 




164, 165, 166, 169 


. 323 


c. 


12 






. 362 


. 548 


— 


— 


§3 




. 170, 312 


. 338 


— 


— 


§27 




. 361 


. 282 


c. 


14, 


§2 




. 131. 133 


. 525, 526 


c. 


15, 


§§ 1, 4, 19 . 


. 165 


664, 665, 666 




— 


§ 19 . 


. 107 


. 361 




— 


§§ 20-23 


. 166 


. 203 


c. 


17, 


§§2,8 


. 166 


. 374 


c. 


18, 


§§ 2, 8, 10, 11, 


12, 13 . 167 


. 470 


c. 


19, 


§§ 4, 5, 6 


. 168 


. 362 


— 


— 


§§ 26-32 


. 169 


. 220 


c. 


21, 


§1 




. 636 



Xll 



STATUTES CITED. 



General Laws — Con. 



c. 21, § 8 
c. 22 . 
c. 28, § 4 
c. 29, § 18 . 

§27 . 

§ 34 

c. 30, §§ 4, 27, 43 

§5 . 

§17 . 

§21 . 

§ 23 . 

§27 . 

§37 . 

§38 . 

§39 . 

§§ 40-50 

§41 . 

§45 . 

§§ 45-50 

§46 . 

c. 31, §§ 3, 5, 31, 43 

§17 . 

§23 . 

§26 . 

§43 . 

§§ 43, 44 

§48 . 

§50 . 

- — §51 . 



c. 32 



c. 33 



\ 2, cl. 3 

l§6-19 

J7 

\ 15 . 

\ 18 . 

\% 20, 22 

>48 . 



39, 43, 45, 
42 . 




46 



PAGE 






PAGE 


. 288, 295 


c. 43 


§ 32 . 


. 56 


. 230, 332 




§ 44G . 


. 462 


601, 602, 603 


c. 44, 


§7 . 


. 516 


. 321 




§31 . 


. 573 


. 378 


c. 45, 


§§ 3, 14, 19 . 


. 638 


. 384, 385 


e. 46, 


§ 1 . 


. 621 


. 67 




§§1.3 


. 208 


. 230, 490 




§13 . 


. 621 


3, 45 


c. 48 




. 332 


. 110,220 




§§ 16, 20 


. 464 


. 110 


c. 54, 


§ 141 . 


. 214 


. 637 


c. 55, 


§1 . 


242 


. 230, 231 


c. 58. 


§ 27 170, 2 


24, 225, 386, 387 


. 360 


c. 59, 


§1 . 


. 370 


75, 76, 211 




§2 . 


. 613 


. 602 




§§ 2, 5, 75 . 


. 608 


. 164 




§3 . 


. 87 


. 602 




§5 


. 88 


337. 601, 603 




§ 5, cl. 10 . 


. 258 


. 108, 110 




§ 5, cl. 27 


609, 610, 613 


. 336 




§§ 5, 11, 12, 14 


. 679 


. 62 




§ 18, cl. 3d . 


. 419, 423 


. 598 




§§ 58, 71, 72 


. 170 


. 680 




§75 . 


. 613, 617 


. 335 


c. 62 


§ 5, cl. (c) . 


.43,45.136 


. 218 




§ 8, par. (e) . 


. 258, 259 


. 476 




§§ 28. 30 


. 233 


. 477, 478 




§30 . 


. 619 


. 62 




§§ 32, 35, 58 


. 639 


. 630, 632 




§ 33 . 


. 543, 545 


. 473 




§ 37 . 


. 616 


. 624 




§§ 43-47 


. 608 


. 624, 626 




§§ 49, 51 


. 614 


. 625 




§§ 49-53 


. 610, 613 


. 625 




§50 . 


. 613 


. 380 




§55 . 


. 48 


. 572 


c. 63 


§1 . 


. 418 


. 472, 473 




§§ 1-10 


. 418 


. 664 




§11 . 


. 311,543 


. 429 




§ 12, par. if) 


. 386 


. 428 




§ 13 . 


. 279, 387 


. 374 




§§ 13. 69 


. 277 


. 561 




§ 16 . 


. 311 


72, 538 




§ 32 . 


. 311 


77 




§51 . 


. 387, 389 


. 318 




§§ 53, 55, 58 


. 309 


. 18 




§ 58 . 


. 310,311 


. 573 




§71 . 


. 170 


. 114 




§§ 73. 75, 80 


. 278 


. 607 


c. 65 


§ 1 . 


. 655 



STATUTES CITED. 



Xlll 



General Laws — Con. 





PAGE 




PAGE 


c. 65, § 14 . 


. 170 


c. 94, § 81 . 


. 275 


c. 66, § 10 . 


. 548 


§§ 119, 120 


. 683 


c. 69, § 1 


. 303 


§ 128 . 


. 682, 683 


§3 . 


. 638, 643 


§ 146 . 


. 282 


§7 . 


. 511 


§§ 186-196 


. 405 


c. 70, § 1 


. 390, 391 


§§ 190, 193, 1 


94, 304 . . 406 


c. 71, § 4 


448, 449, 450, 567, 568 


§ 191 . 


. 393 


§§ 8. 9 


. 596 


§ 192 . 


. 391, 392 


— §21 . 


. 302. 304 


§215 . 


. 414 


§26 . 


. 306 


§§270-277 


. 255 


§41 . 


. 56 


§ 304 . 


. 291 


§§ 61, 63 


. 453 


c. 98, §2 


. 541 


§68 . 


. 597 


§15 . 


. 123 


c. 73, § 1 


. 512 


c. 101, § 3 


. 57 


c. 74, §§ 1-24 


. 624 


§ 16 . 


. 576 


§42 . 


. 166 


§17 . 


. 575 


§§ 49-51 


. 166 


§22 . 


. 575 


c. 75, §§ 1, 5 


. 166 


c. 103, § 11 . 


. 219 


§ 13 . 


. 107, 108 


c. 105, §§ 1, 3, 6 


. 274, 443 


0. 76, §§ 5, 6 


. 394 


c. 107, §§ 7, 8 


50, 52 


§5 . 


. 597 


§ 212 . 


. 385 


c. 79 


24, 541 


c. 109, § 1 


. 615 


§1 


22, 23 


c. 110, § 5 


. 263 


§3 


. 452 


c. Ill . 


. 573 


§5 . 


. 561 


§§ 2-25 


. 406 


c. 80 . 


. 268 


§§ 6, 32, 112, 


116 . . . 434 


e. 81, § 5 


. 23 


§§ 26-32 


. 281 


§7 . 


. 24 


§31 . 


. 280, 282 


c. 82, §§2-9 . 


. 431 


§57 . 


. 30 


■ §11 . 


. 431 


§§ 63-69 


. 167 


0. 85, § 8 


. 376 


§ 121 . 


. 99 


c. 90 . 


. 62 


§ 159 . 


. 192 


§7 . 


. 177 


§ 160 . 


. 466, 469 


§26 . 


. 548 


c. 112, § 2 


. 642 


§§ 39, 40 


. 191 


§§ 2-12 


. 372 


c. 91, § 6 


. 210 


§40 . 


. 627, 628, 629 


§13 . 


. 192 


§§ 45-46 


. 604 


§ 18 . 


. 647 


§48 . 


. 338, 339 


§37 . 


578, 579, 580 


§68 . 


. 641, 642 


c. 92, §§ 85, 87 


. 560 


c. 114, § 37 . 


. 282, 284 


c. 93, §§ 1, 2, 14 


. 485 


§§ 20, 21 


. 638 


§ 14A . 


. 483 


§37 . 


. 282 


§§ 24-28 


. 17 


c. 115 . 


. 635 


§§ 29-33 


. 375 


§§ 17, 18 


. 633 


— §§ 35-39 


. 590 


c. 116, § 1 


. 409, 437, 633 


c. 94, § 10 . 


. 281 


§2 . 


. 129 


§§ 30, 35, 60, 


64, 111, 121, 122, 


§4 . 


. 129 


169, 189, 


192, 217, 235, 248, 


§§ 1, 2, 4, 5 


. 126 


260, 290, 


293 . . . 257 


— §4 . 


. 161, 162 


§§ 74-82 


. 288 


§5 . 


161, 162, 228, 408 



XIV 



STATUTES CITED. 



General Laws — Con. 



c. 120, §§ 1-6 . 

§ 13 . 

§ 15 . 

§§ 16, 17 

§§ 28-37 
§§1.6 
§25 . 
§32 . 
§§ 97-115 
§47 . 



c. 121 
c. 122 
c. 123 



c. 124 
c. 125 
c. 126 
c. 127 



c. 128, 
c. 129 



c. 130 



c. 131 



§61 . 
§§ 97-115 
§ 105 . 
§ 127 . 
§§ 130, 143 
§ 141 . 
§§ 46-50 

§ 15 

§§ 15-17 
§17 . 



§ 17 
§59 




161 



PAGE 

167 
163 
162 
162 
167 
168 
168 
167 
162 
572 
245 
544 
162 
243, 245 
432, 433 
. 114 
32,34 
. 205 
. 683 
. 683 
. 682 
. 682 
. 288 
. 294 
. 193 
. 430 
. 228 
. 296 
. 381 
. 341 
. 663 
. 662 
. 206 
. 206 
. 78 
77,78 
. "l9 
205, 206 
. 548 
. 432 
. 606 
. Ill 
. 21 
. 230 
. 31 
. 230 
. 480 
229, 331, 332 
. 581 



c. 148, 



3, 4, 



§3 
§50 
§§ 15, 16 
§§ 42, 46 

§§ 46-54 
§§ 14, 15 



c. 168, 



c. 169 



c. 170, 



PAGE 

. 332 

. 229 

229, 230, 231 

203, 306, 308 

. 303 

11 . . . 237 
238, 239 
530, 629, 630, 632 
442 
67 
60 
240 
263 
242 
547 
272 
174 
41 
42 
174 
40, 340, 341 
455, 457. 559, 659 
544 

40. 240, 241, 570, 660 
. 241 
221,222, 313 
35, 36 
. 173, 174 
. 227 
. 646. 659 
. 543. 658 
455, 457, 559 
. 251 
. 173, 174 
. 562 
. 42 
. 40 
. 556 
. 570 
81, 130, 570 
. 84 
. 84 
50, 51 
. 79 
. 240, 241 
. 35 
. 550, 552 
. 241 
. 158 



STATUTES CITED. 



XV 



General Laws — Con, 



c. 172 




PAGE 




PAGE 


. 221, 222 


c. 197, § 24 . 


. 656 


657, 658, 659 


c. 206, § 5 


. 656 


. 250 


§21 . 


. 656 


. 158 


c. 207, § 38 . 


. 248. 249 


. 250 


c. 210, §§ 12-14 


. 620 


. 242 


c. 211, §4 


. 362 


. 659, 660 


c. 217, § 12 . 


4 


. 251 


§§ 28, 29 


. 336 


. 36 


§35 . 


. 5 


. 543 


c. 221, §§ 8-10 


. 319 


. 544 


§§ 12, 32 


. 5 


. 97 


§53 . 


. 588 


. 96 


§55 . 


. 588 


. 251 


§97 . 


. 5 


. 298, 301 


§ 100 . 


. 319 


. 557 


c. 222. §§ 1. 2 


. 248 


. 299 


c. 235, §§ 36-45 


77, 78 


. 558 


§46 . 


. 137 


. 14, 151 


c. 252, § 1 . .5 


14, 515. 545. 546 


. 13 


§5 . . 


. 514 


46, 47 


§ 7, cl. 5 


. 426 


. 45 


§§ 13, 14 . 


. 547 


. 45 


c. 258, § 5 


. 232 


. 146 


c. 262. §§ 50, 53 


. 315. 317 


. 614 


c. 268, § 16 . 


. 101 


457, 559, 560 


c. 273, §§ 9, 11, 16 . 


. 592 


. 205 


§15 . 


. 593 


. 461 


c. 276, § 1 


. 289 


. 137 


§23 . 


. 295. 432 


. 215 


§§ 83, 85, 89 


. 319 


. 216 


c. 281. § 2 


. 603 


. 620 







XVI 



CASES CITED. 



Table of Cases cited in this Volume. 



A. Blum, Jr.'s, Sons v. Whipple, 194 

Mass. 253, 258 .... 172 
Abington v. Duxbury, 105 Mass. 287 208 
Ableman v. Booth, 21 How. 506, 519, 

520 503 

Adams v. Pease, 2 Conn. 481 . . 298 
V. Yazoo & M. B. R. Co., 77 

Miss. 194, 253 . . . . 240 

Alexander's Executor v. City of Ver- 
sailles, 152 Ky. 357 .. . 422 
Allgeyer v. Louisiana, 165 U. S. 578, 

589 488 

American Academy v. Harvard College, 

12 Gray, 582, 596 ... 71 

American School of Magnetic Healing 

V. McAnnulty, 187 U. S. 94 . 505, 506 
American Soda Fountain Co. v. Stol- 

zenbach, 75 N. J. L. 721, 726 . 246 

Amos V. United States, 255 U. S. 313 290 
Amy V. Watertown, 130 U. S. 301, 319 523 
Angle V. Chicago, St. Paul &c. Ry., 

151 U. S. 1, 17-19 . . 523 

Ankeny v. Richardson, 187 Fed. 550 . 44 
Atlantic Coast Line v. N. Car Corp. 

Com'n, 206 U. S. 1 . . . 149 

Atlas Bank v. Nahant Bank, 3 Met. 

581, 585 ... . 280, 340 

Attorney General v. Apportionment 

Commiss., 224 Mass. 598, 601 , 345 
V. Boston & Albany R.R. Co.", 

233 Mass. 460 . . 28, 93, 95, 265 

V. Campbell, 191 Mass. 497, 501 214 

». East Boston Co., 222 Mass. 450 29 

V. Gardiner, 117 Mass. 492 . 579 

V. Jamaica Pond Aqueduct Corp., 

133 Mass. 361, 364 .. . 192 
V. Mass. Pipe Line Gas Co., 179 

Mass. 15 . . . 94, 111, 311 

V. Methuen, 236 Mass. 564 . 175 

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

62, 92 182 

V. Parker, 126 Mass. 217, 219 . 170 



Attorney General v. Pelletier, 240 

Mass. 264, 292 . . . . 681 

V. Pitcher, 183 Mass. 513 . . 51 

V. Preferred Mercantile Co., 187 

Mass. 516 52 

V. Tillinghast, 203 Mass. 539 2, 295 

V. Tufts, 239 INIass. 458 . 353, 362, 

424, 681 

V. Williams, 140 Mass. 329 . 579 

Austin V. Shaw, 10 Allen, 552 . . 92 

Auten V. U. S. Natl. Bank, 174 U. S. 

125, 141 et seq 42 

Auto Acetylene Light Co. v. Prest-o- 

Lite Co., 276 Fed. 537 . . .488 
Averill v. Chadwick, 153 Mass. 171 . 295 
Bachrach v. Allen, 239 Mass. 272 . 272 
V. Commissioner of Banks, 239 

Mass. 272, 273, 274 . . 544, 659 

Badger v. United States ex rel. Bolles, 

93 U. S. 599 .... 359 

Balch V. Shaw, 174 Mass. 144 . . 369 

Bank for Savings v. The Collector, 

3 Wall. 495, 512 . . . .42 

Bartlett, Petitioner, 163 Mass. 509, 

514 118 

Barto )'. Himrod, 8 N. Y. 483 . 181, 185 
Bates V. Loring, 239 Mass. 349 . . 525 

Batt V. Treasurer «fc Receiver General, 

209 Mass. 319, 320 . . .369 

Bay State Dredging & Contracting 

Co. V. W. H. Ellis & Son Co., 235 

Mass. 263, 268 . . . 76, 212 

Beach v. Kent, 142 Mich. 347 . . 517 

Beals V. Brookline, 174 Mass. 1, 20 . 157 
Beard v. Seavey, 191 Mass. 503 . . 295 

Beedle v. Bennett, 122 U. S. 71 . . 367 

Belknap v. Schild, 161 U. S. 10 . 366, 505 
Benson v. United States, 146 U. S. 325 596 
Bent ?i. Emery, 173 Mass. 495, 498 . 541 

V. Hubbardston, 138 Mass. 99 . 245 

Bergeron, Petitioner, 220 Mass. 472, 

476 135, 551 



CASES CITED. 



XVll 



PAGE 

Birdsell v. Shaliol, 112 U. S. 485 . 367 

Blackstone v. Miller, 188 U. S. 189 . 460 



Bliss V. Bliss, 221 Mass. 201, 211 
Block V. Hirsh, 256 U. S. 135 . 
Bogni V. Perotti, 224 Mass. 152 
Boston V. Chelsea, 212 Mass. 127 



. 184 
196, 586 
196, 403 

. 180, 
188, 524 

. 68 

. 112 



V. Doyle, 184 Mass. 373 

V. Schaffer, 9 Pick. 415 

V. Treasurer and Receiver Gen- 
eral, 237 Mass. 403 . 397, 474, 479, 

519, 536 

• V. Warwick, 132 Mass. 519, 520 . 6.34 

Boston & Lowell R.R. Corp. v. Salem 

& Lowell R.R. Co., 2 Gray, 1 68, 540, 

541 
Boston & Maine Railroad v. City of 

Cambridge, 8 Cush. 237 . . 86 

Boston, etc., R.R. Corp. v. Salem, etc., 

R.R. Corp., 2 Gray 1 . . .59 

Boston Fish Market Corp. v. Boston, 

224 Mass. 31 . . . .89 

Boston Glass Mfg. Co. 

24 Pick. 49, 52 . . . 

Bowden v. Brown, 200 Mass. 209 
Boyd V. United States, 116 U. S. 616, 

622-630 284 

Boyden v. Hill, 198 Mass. 477, 487 . 43 
Bradiield v. Roberts, 175 U. S. 291 . 505 
Bradlee v. Warren Savings Bank, 127 

Mass. 107 

Bradley v. Richmond, 227 U. S. 477 . 
Brazee v. Michigan, 241 U. S. 340 
Brewer v. City of Springfield, 97 Mass. 

152 

Brimmer v. Boston, 102 Mass. 19 
Broadway National Bank v. Baker, 

176 Mass. 294 . 
Brodbine v. Revere, 182 Mass. 598, 

600 . . 181, 182, 467 

Brophy v. Apport. Commiss., 225 

Mass. 124 346 

Brougham v. Oceanic Steam Naviga- 
tion Co., 205 Fed. 857 . . . 623 
Brown v. Boston &, Maine R.R., 233 

Mass. 502 . . . . 183, 587 

V. Brown, 174 Mass. 197 

V. Nahant, 213 Mass. 271 

V. Russell, 166 Mass. 14 



Langdon, 

98, 240 
69 



455 
182 
447 



203 
510 



272 



Brownell v, 
Mass. 29 



Old Colony R.R. 



. 160 

. 663 

350, 424, 

599 

164 

. 149 



PAGE 

Buck V. Beach, 206 U. S. 392 . . 460 

Buell V. Chapin, 99 Mass. 594 . . 172 

Burnham v. Morrissey, 14 Gray, 226 . 471 
Butchers Slaughtering &c. Assn. v. 

Boston, 214 Mass. 254, 258 . . 551 

Butler r. Pennsylvania, 10 How. 402 . 681 
Butterfield v. Stranahan, 192 U. S., 

470, 496 186 

C. A. Weed & Co. v. Lockwood, 264 

Fed. Rep. 453 ... . 254 

Calder v. Kurby, 51 Gray, 597 . . 112 

V. Michigan, 218 U. S. 591, 598 . 523 

Camp V. Rogers, 44 Conn. 291 . . 413 

Campbell v. Knights of Pythias, 168 

Mass. 397, 400 . . . . 172 

Canfield Oil Co. v. Federal Trade 

Commission, 274 Fed. 571 . . 488 

Carpen v. Foster, 12 Pick. 485 . . 345 

Carr v. National Security Bank, 107 

Mass. 45, 49 . . . .385 

Carter v. Hornback, 139 Mo. 238 . 295 
Carthage v. CoUigan, 216 N. Y. 217 . 284 
Gary Library v. Bliss, 151 Mass. 364 68, 
70, 92, 196, 511, 512, 540 
Case V. Clark, 220 Mass. 344 . . 656 

Case of Joseph Downe, Jr., Mass. 

Election Cases, 1780-1852, p. 244 . 214 
Catheron v. County of Suffolk, 227 

Mass. 598 319 

Central Pacific R.R. Co. v. California, 

162 U. S. 91 .... 673 

Chable v. Nicaragua Canal Constr. 

Co., 59 Fed. Rep. 846 . . . 222 

Chapman v. Gray, 15 Mass. 439 . 137 

Chappell V. United States, 160 U. S. 499 596 
Charlestown v. Groveland, 15 Gray, 15 129 
Chase v. Dickey, 212 Mass. 555 . 92 

Chelsea v. Treasurer and Receiver- 
General, 237 Mass. 422 . . 643 
Chicago V. Powers, 231 111. 560 . . 440 
Chicago & Alton R.R. v. Tranbarger, 

238 U. S. 67, 69, 77 . . 484, 585 

Chicago, etc., R.R. Co. v. Nebraska, 

170 U. S. 57, 74 . . . . 510 

Chicago, etc., R.R. Co. v. Chicago, 

166 U. S. 226, 241 ... 540 

Chicago Life Ins. Co. v. Needles, 113 

U. S. 574 400 

Church V. Boylston & Woodbury Cafe 

Co., 218 Mass. 231 .. . 225 

Cincinnati v. Louis\dlle & Nashville 

R.R., 223 U. S. 390, 400 . . 510 



XVIU 



CASES CITED. 



PAGE 

Cincinnati Gas Light & Coke Co. v. 

State, 18 Oh. St. 237 . 
Cincinnati, Wilmington, &c. R.R. v. 

Commiss., 1 Ohio St. 77, 78 . 
City of Staunton v. Stout's Executor, 

86 Va. 321 

City of Blakely v. Hilton, 150 Ga. 

27 

Clark V. Blackington, 110 Mass. 369 . 

c. Brown, 3 Allen, 509, 511 

v. Gaskarth, 8 Taunt. 431 . 

V. Flagg, 11 Cush. 539, 540 

V. New England Tel. & Tel. Co., 

229 Mass. 1, 6 . 
V. Treasurer and Rec. Gen., 218 

Mass. 292 

Codman v. Crocker, 203 Mass. 146, 

154 

Cogswell?). Chubb, 1 App. Div. (N.Y.), 

93 

Cole V. Lagrange, 113 U. S. 1 



291 

587 

422 

422 
656 
386 
253 
386 

225 

460 

183 

. 296 
474, 479, 
486 

V. Tucker, 164 Mass. 486 . . 463 

Collins V. Waltham, 151 Mass. 196 . 157 

V. Texas, 223 U. S. 288, 296 . 142, 

143, 642 
Collister v. Hayman, 183 N. Y. 250 . 446 
Commissioner of Banks v. Jordan, 

Marsh Co., 241 Mass. 273 . . 544 

Commissioner of Health v. Bunzel, 221 

Mass. 31 257 

Commissioners on Inland Fisheries v. 

Holyoke Water Power Co., 104 

Mass. 446, 451 . . . 61, 194 

Commissioners of Union Covmty v. 

Greene, 40 Oh. St. 318 . . . 546 

Commonwealth v. Alden, 143 Mass. 

113 257 

a. Alger, 7 Cush. 53 . . 194,198 

V. Beaman, 8 Gray, 497 . . 361 

V. Beaulieu, 213 Mass. 138, 141 . 585 

V. Bennett, 108 Mass. 27, 29 . 184 

V. Berkshire Life Ins. Co., 98 

Mass. 25, 29 . . . . 145 

V. Blackington, 24 Pick. 352 . 184 

V. Boston & Maine R.R., 222 

Mass. 206, 208 . . . 403, 488 

V. Bow, 177 Mass. 347 . . 206 

V. Brennan, 103 Mass. 70 . .112 

V. Carter, 132 Mass. 12, 14, 15 . 292 

V. Cary Improvement Co., 98 

Mass. 19, 22 , . . . 279 



PAGK 

Commonwealth v. Chapin, 5 Pick. 
109 194 

V. Cochituate Bank, 3 Allen, 42 . 413 

V. Conn. Valley St. Ry. Co., 196 

Mass. .309, 311 . . . .449 

V. Crowninshield, 187 Mass. 221 575 

449 
289 
292 
194 
430 
182 
206 
359 
178 
177 



— V 
323 



■V. Dedham, 16 Mass. 141 . 
V. Dana, 2 Met. 329, 334^336 
V. Ducey, 126 Mass. 269, 273 
V. Essex Co., 13 Gray, 2.39 
V. Feeny, 221 Mass. 323, 325 
V. Fox, 218 Mass. 498 
V. Gee, 6 Cush. 174 . 
V. Hawkes, 123 Mass. 525 
V. Henry, 229 Mass. 19 
V. Hilton, 174 Mass. 29 

Houtenbrink, 235 Mass. 320, 



642 
467 



110 
. 353 
. 373 
542. 

1«2, 467 



— V. Hyde, 230 Mass. 6 
- — • V. Intoxicating Liquors, 

Mass. 172 . 

— V. Jewelle, 199 Mass. 558 

— V. Kingsbury, 199 Mass. 
546 

— V. Lancaster Savings Bank, 123 
Mass. 493, 496 . . . .310 

— V. Libbey, 216 Mass. 356, 358 . 484, 

585 

— V. Lockwood, 109 Mass. 323, 339 651 

V. John T. Connor Co., 222 

Mass. 299 30N 

— - I'. Kozlowsky, 238 Mass. 379, 
387 . . . 328, 362, 603, 625 

V. Maletsky, 203 Mass. 241, 246 183 

V. Meckel. 221 Mass. 70, 72 . 206 

— V. Nickerson, 236 Mass. 281 . 190 

— V. Osborn Mill, 130 Mass. 33 . 308 

— V. Packard, 185 Mass. 64 . . 482 
— • V. Parks, 155 Mass. 531 . . 413 

— V. Pear, 183 Mass. 242 . . 100 
V. Peebles, 134 Ky. 121 . . 422 

V. Peoples Five Cents Savings 

Bank, 5 Allen, 428, 438 . .310 

V. Peters, 2 Mass. 125 . . 364 

— V. Phelps, 209 Mass. 396, 407, 408 290 

V. Plaisted, 148 Mass. 375, 382 . 182, 

467 

V. Porn, 196 Mass. 326 . 142, 143, 

326, 373, 642 
V. Pratt, 137 Mass. 98, 104 . 42 

V. Reading Savings Bank, 133 

Mass. 16, 19 . . . . 4.55 



CASES CITED. 



XIX 



PAGE 

Conjnionwealth v. Richardson, 142 
Mass. 71, 74 . 328, 329 

r. Riley, 210 Mass. 387, 392; 

S. O.. 232 U. S. 671 . . 307, 308 

)'. Sisson, 189 Mass. 247 . 467, 468 

r. Slocum, 230 Mass. 180, 190 . 182 

— — V. Smith, 10 Allen, 448, 455, 456 241 

V. Smith, 141 Mass. 135, 138 . 293 

i\ Stodder, 2 Cush. 562 . 574, 575 

('. Strauss, 191 Mass. 545 . 446, 484, 

585 

V. Tiffany, 119 Ma.ss. .300 . . 467 

V. Theberge, 231 Mass. 386, 389 182 

(1. Tobin, 108 Mass. 426, 429 . 290 

(1. Vineent, 108 Masp. 441 . 177, 467 

V. White, 6 Cush. 181 . . 660 

V. Zimmerman, 221 Mass. 184 . 142, 

143, 373, 642 
V. Union Ins. Co., 5 Mass. 230, 

232 240 

Confiscation Cases, 7 Wall. 454, 458 . 170 
Conn. River R.R. Co. v. County Com- 
missioners, 127 Mass. 50 . . 541 
Cook V. Leland, 5 Pick. 236 . . 421 
Cooney Co. v. Arlington Hotel Co., 

11 Del. Ch. 286, 306 . . . 264 

Coppage V. Kansas, 236 U. S. 1, 14 ' . 488 
Corcoran v. Boston, 185 Mass. 325 . 88 
Cornwall v. Todd, 38 Conn. 443 . 422 

Costley !). Commonwealth, 118 Mass. 

1, 36 348, 651 

Cotton Plant, 10 Wall. 577 . . 296 

Coulombe v. Eastman, 76 N. H. 248 . 265 
County of Berksliire r. Cande, 222 

Mass. 87, 90 .... .587 

Coyle V. Taunton Safe Deposit «fc Trust 

Co., 216 Mass. 156, 1.58, 163 . . 272 

Craig V. Warner, 216 Mass. 386, 393 . 246 
Crawford v. Nies, 220 Mass. 61, 65 68, 69, 

92 

V. Nies, 224 Mass. 474 69, 93 

Crease v. Babeock, 23 Pick. 3.34 . 99 

Crenshaw v. United States 134 U. S. 99 681 
Daley!'. Watertown, 192 Mass. 116 . 157 
Dallinger v. Rapello, 14 Fed. 32 . 422 

Dalton V. Bernardston, 9 Mass. 201, 

203 .... 128, 129, 228 
Dana v. Third National Bank, 13 

.\llen, 445 385 

V. Treasurer and Receiver Gen- 
eral, 227 Mass. 562 . . .460 

■ V. Jackson, 256 U. S. 589 . . 609 



656 
353 



544 

481 



PAGE 

Danforth v. Groton Water Co., 178 

Mass. 472 .... 412, 547 
Dartmouth College v. Woodward, 

4 Wheat. 518 .. . 59, 67, 68 
Davies v. Burns, 5 Allen, .349 . . 317 
Davis V. Gray, 16 Wall. 203 . 506 
V. Inhabitants of Chilmark, 199 

Mass. 112 596 

V. Treasurer A" Receiver General, 

208 Mass. 343, 345 . . 369, 370 

Dawes v. Boylston, 9 Mass. 337, 352 
Dearborn c. Ames, 8 Gray, 1 
Delafoile v. New .Jersey, 54 N. J. L. 381 290 
Demmon v. Boylston Bank, 5 Cush. 

194 

Denny v. Mattoon, 2 Allen, 361, 378 
Dent V. West Virginia, 129 U. S. 114, 

122 . 142, 143, 642 

Denver r. Denver Union Water Co., 

246 U. S. 178 . . . 587 

Derby v. Blake (1799), 226 Mass. 

618 59, 522 

Derinza's Case, 229 Mass. 435, 442 602, 

603 
Dewey v. Richardson, 206 Mass. 430, 

433 182 

Dexter V. Shepard, 117 Mass. 480 . 203 
Dickey v. Putnam Free School, 197 

Mass. 468 450 

Dickinson ?'. Worcester, 7 Allen, 19, 22 157 
Dinan v. Swig, 223 Mass. 516 . 181, 215, 
359, 384, 524 
District of Columbia c. Bailey, 171 

U. S. 161, 176 ... . 170 

Dobbins w. Commissioners of Erie 

County, 16 Pet. 435, 448, 449 . 497 

Dr. Miles Medical Co. v. John D. Park 

& Sons Co., 220 U. S. 373 . 485, 487 
Dolliver v. Parks, 136 Mass. 499 . 360 

Donaldson v. Strong, 195 Mass. 429 . 44 
Donovan v. Apportionment Commiss., 

225 Mass. 55 ... . 346 

Door V. United States, 195 U. S. 138 185, 

382 
Downes v. Bidwell, 182 U. S. 244, 251 382 
Doyle ( . Continental Ins. Co., 94 U. S. 

535, 541 .... 
Drury v. Natick, 10 Allen, 169, 183 
Dudley v. Sanborn, 159 Mass. 185 
Duffy V. Bourneuf, 227 Mass. 513, 517 656 
V. Trea.surer and Receiver Gen- 
eral, 234 Ma.ss. 42 



523 
568 
656 



609 



XX 



CASES CITED. 



400 
198 



588 



Dunn V. Agricultural Sofiety, 46 Ohio 
St. 93, 99, 100 . . . . 205 

V. Lowe, 208 Mass. 516, 518 290, 294 

V. State, 13 Ga. Ap. 314 . . 42 

Durfee v. Old Colony, etc., R.R. Co., 

5 Allen, 2-30 .... 

Durgin v. Minot, 203 Mass. 26 . 

Eastern Bridge & Structural Co. v. 

Worcester Auditorium Co., 216 

Mass. 426, 430 .... 

Eastman Marble Co. v. Vermont 

Marble Co., 236 Mass. 138, 153 43, 44 
Edgar A. Lev5' Leasing Co. v. Siegal, 

258^U. S. 242 .. . 446, 586 

Eidman v. Martinez, 184 U. S. 578 . 338 
Einstein v. Marshall, 58 Ala. 153 . 515 
Eklon V. Chelsea, 223 Mass. 213, 216 . 561 
Eliot V. Freeman, 220 U. S. 178 . 461 

V. Trinity Church, 232 Mass. 517, 

522 . . . 70, 509, 511, 540 

Employers Liability Ins. Co. v. Insur- 
ance Commissioners, 64 Mich. 614 . 
Engel V. O'Malley, 219 U. S. 128, 136 
Entick V. Carrington, 19 Howell's 

State Trials, 1029 
Essex Co. V. Lawrence, 214 Mass. 79, 

90 

Everett v. Foster, 223 Mass. 553 

Kx parte Jackson, 96 U. S. 727, 733 . 

McCardle, 7 Wall. 506, 514 

Young, 209 U. S. 123, 149, 155, 

156 

Fairchild v. Hughes, 258 U. S. 126 
Farr Alpaca Co. v. Commonwealth, 
212 Mass. 156, 162 .. . 

Farrar v. Pillsbury, 217 Mass. 330, 335 
Fay V. Noble, 12 Cush. 1, 18 . 
Fechteler v. Palm Bros. & Co., 133 

Fed. Rep. 462, 469 
Federal Trade Commission i'. Beech- 
nut Packing Co., 257 U. S. 441 446, 485, 

487, 542 
Fellows V. Miner, 119 Mass. 541 70, 92 

Field V. Clark, 143 U. S. 649 . 184, 185, 

186, 587 
First National Bank v. Fellows, Attor- 
ney Gen., 244 U. S. 416 . 36, 186 
First Universalist Society v. Bradford, 

185 Mass. 310 . . . . 369 

Fisher ?). McGirr, 1 Gray, 1, 27-31 . 289 
Fitchburg Railroad Co. v. Grand Junc- 
tion, etc., Co., 1 Allen, 552 . . 359 



338 
43 

289 

623 
271 
290 
523 

506 
501 

310 
240 
246 

262 



PAGE 

546 
157 

87 
520 



95 
656 



290 
196 



595 
157 



Fitzgerald v. Lewis, 164 Mass. 495 
Flagg V. Worcester, 13 Gray, 601 
Flanders v. Cross, 10 Cush. 514 
Fletcher v. Peck, 6 Cranch, 87 . 
Flint V. Stone Tracy Co., 220 U. S. 107 

145 

Flynn v. Flynn, 183 Mass. 365 . 
Folger V. Columbian Ins. C-o., 99 Mass. 

267, 276 ... . 98, 240 

Ford V. Breen, 173 Mass. 52 
Forster v. Forster, 129 Mass. 559 
Fort Leavenworth R.R. Co., v. Lowe 

114 U. S. 525 
Franklin v. Fisk, 13 Allen, 211 . 
Franklin Savings Bank v. Framinghara, 

212 Mass. 92, 94 . . . 328, 329 

Freedman v. Bloomberg, 225 Mass. 

491 137, 138 

Freeland v. Hastings, 10 Allen, 570 474, 

479. 536 
Friend v. Childs Dining Hall Co., 231 

Mass. 65, 72 . . . . 206 

Frost V. American Surety Co., 217 

Mass. 294, 296 . . . 506, 607 

V. Thompson, 219 Mass. 360, 365 460 

Frothingham v. March, 1 Mass. 247 . 203 
Gage V. Steinkrauss, 131 Mass. 222 . 467 
Gagnon's Case, 228 Mass. 334, 338 
Gannett v. Cambridge, 218 Mass. 60 



630 
613, 
617 



Garst 11. Hall & Lyon Co., 179 Mass. 

588 487 

Geer v. Conn., 161 U. S. 519 . 177, 431 
Geo. H. Sampson Co. v. Common- 
wealth, 202 Mass. 326, 334 . .212 
George G. Fox Co. v. Glynn, 191 Mass. 

344 489 

Georgia v. Stanton, 6 Wall. 50 . 502, 505 

• v. Tennessee Copper Co., 206 

U. S. 230, 237 ... . 503 

German Alliance Ins. Co. v. Kansas, 

233 U. S. 389 . . . .586 

Gibbons v. Ogden, 9 Wheat. 1, 203 . 291 
Gill V. Atty-Gen., 197 Mass. 232, 237 69 
Ginn v. Almy, 212 Mass. 486, 497 . 160 
Goldstein v. Conner, 212 Mass. 57, 59 183 
Gonzales v. Williams, 192 U. S. 1 . 382 
Gordon t. L'nited States, 117 L^. S. 

697, 700, 701, 705 ... 503 

Gouled V. United States, 255 V. S. 298 290 

Graham r. Roberts, 200 Mass. 152 . 182, 

184, 424, 462 



CASES CITED. 



XXI 



PAGE 

Gieat Xorthorn R.R. Co. v. Minne- 
sota, 238 U. S. 340 . . 486, 48S 
Greene v. Louisville «t I. R.R. Co., 244 

U. S. 499, 506, 507 .. . 506 

■ IK Mayor of Fitchburg, 219 Mass. 

121 577 

Greenfield Savings Bank v. Aber- 

crombie, 211 Mass. 252 . 544 

V. Commonwealth, 211 Mass. 207 280, 

310, 313, 570 
Greenwood v. Union Freight Ry. Co., 

105 U. S. 13 ... 61, 67 

Grover J). Grover, 24 Pick. 261 . . 159 

Gulf Colorado & Santa Fe Ry. v. Ellis, 

165 U. S. 150, 155 .. . 142 

Gurney v. Howe, 9 Gray, 404 . . 172 

Hagar v. Buck, 44 Va. 285 . . 44 

Hairston v. Danville &, Western Ry., 

208 U. S. 598 . . . . 486 

Hale t:. Henkel, 201 U. S. 43, 76 . 291 

Hall V. Wisconsin, 103 U. S. 5 . . 454 

Hamilton Natl. Bank v. American L. 

A: T. Co., 66 Neb. 67 . .42 

Hammer r. Dagenhart, 247 U. S. 251 495, 

503, 506 
Hampshire County v. Franklin County, 

16 Mass. 76 . . .413 

Hanson v. South Scituate, 115 Mass. 

336, 342 ... . 328, 329 

Haraden v. Larrabee, 113 Mass. 430, 

432 216 

Hardy v. Yarmouth, 6 Allen, 277 . 421 

Harlan v. Kraschel, 164 Iowa. 667 . 178 
Hart 0. Tax Commissioner, 240 Mass. 

37 609 

Hartley v. Granville, 216 Mass. 38, 40 317, 

318 
Harvard College v. Soc. for Promoting 

Theological Education, 3 Gray, 280 68, 

70, 92 
Harvey Coal & Coke Co. i'. Dillon, 59 

W. Va. 605 137 

Hawkes v. New Yoik, 170 U. S. 189, 

195 142, 143 

Heard v. Talbot, 7 Gray, 113 . 98, 240 
Heira v. McCall, 239 U. S. 175 . . 136 
Hellen v. Medford, 188 Mass. 42 . 364 
Hemmenway «. Towner, 1 Allen, 209 208 
Henley v. Myers, 215 U. S. 373 . . 413 
Herbert v. Simson, 220 Mass. 480 . 159 
Hewett V. Canton, 182 Mass. 220 . 157 
V. Charier, 16 Pick. 353 . . 642 



Higgin.son r. Treasurer, etc., of Boston, 

212 Mass. 583. 591 .. . 561 

Hittinger v. Eames, 121 Mass. 539, 

546 467 

Holcombe v. Creamer, 231 Mass. 99, 

§ 11 238 

Hollander v. Central Metal Co., 109 

Md. 131 44 

Hollister v. Benedict «fc Burham Mfg. 

Co., 113 U. S. 59 . . . ,366 

Holmes i\ Greene. 7 Gray, 299 . . 408 

Holt V. Somervillc, 127 Mass. 408 . 38 
Holyoke Water Power Co. v. Lyman, 

15 Wall. 500 .. . 61, 67 

Holy Trinity Church v. United States, 

143 U. S. 457, 459, 472 . . . 551 

Hooper r. Bradford, 178 Mass. 95 . 371 

('. Shaw, 176 Mass. 190 369, 370, 371 

Horan v. Watertown, 217 Mass. 185 . 482 
Houston, etc., Ry. Co. v. United States, 

234 U. S. 342 ... . 186 

Howard v. Fall River Iron Works Co., 

203 Mass. 273, 276 .. . 547 

Howes V. Maxwell, 157 Mass. 333 . 663 
Howland v. Flood, 160 Mass. 509 . 239 
Hubbard v. Worcester Art Museum, 

194 Mass. 280, 289 .. . 60 

Hutchins v. State Bank, 12 Met. 421, 

425 421, 056 

Hutchinson v. Danley, 88 Kan. 437 . 37 
In re Chapman, 166 U. S. 661 . . 519 
Eastern Shore Shipbuilding Corp., 

274 Fed. 893 . . . .677 

Gay, 5 Mass. 419 . . . 137 

Hickory Tree Road, 43 Pa. St. 139 547 

Loney, 134 U. S. 372, 373 . . 384 

Rahrer, 140 U. S. 545, 560 185, 495 

Strawbridge <fc Mays, 39 Ala. 

367, 375 286 

AVm. S. Butler A; Co. Inc., 207 

Fed. Rep. 705, 713 . . . 246 

International Harvester Co. v. Mis- 
souri, 234 U. S. 199 . . . 485 

International Paper Co. v. Common- 
wealth, 232 Mass. 7 . . .29 

International Postal Supply Co. v. 
Bruce, 194 U. S. 601, 607 . . 336 

International Text Book Co. i'. Con- 
nelly, 206 N. Y. 188 . . . 254 

Interstate Commerce Commission v. 
Goodrich Transit Co., 224 U. S. 
194 185, 186 



XXll 



CASES CITED. 



PAGE 

J. Doherty. 207 Fed. Rep. 997, 999, 

1000 253 

J. S. Lang Engineering Co. v. Com- 
monwealth, 231 Mass. 367, 370 544. 658 
Jackson i'. Phillips, 14 Allen, 539, 556 71, 

92, 118, 261 
Jacobson v. Mass., 1S7 U.S. 11.22 . 100, 

496 
Jaquith v. Worden, 73 Wash. 349, 360 178 
Jenkins v. Andover, 103 Mass. 94, 

449 650 

Johnson v. Maryland, 254 U. S. 51 . 664 
Johnston v. Belmar, 58 X. J. Eq. 354 . 284 
Jones V. Portland. 245 U. S. 217 . 586 

V. Robbins, 8 Gray. 329 . . 196 

Jordan Marsh Co. v. Natl. Shawmut 

Bank, 201 Mass. 397, 411 . 172 

Kansas v. Colorado, 185 U. S. 125; 206 

U. S. 46, 83, 84, 99 . . . 503 

Keller r. United States, 213 U. S. 138 495 
Kelly V. Commissioner of Banks, 239 

Mass. 298, 301 . .544 

Kennebec Co. v. Augusta Ins., etc., Co., 

6 Gray, 204, 207 . . 246 

Kennedy v. Commonwealth, 182 Mass. 
480, 481 ... . 76, 212 

I,. Hodges, 215 Mass. 112 . . 460 

Kennison v. Beverly, 146 Mass. 467 . 157 
Kessler v. Kedzie, 106 111. App. 1 . 396 
Kiggins V. Munday, 19 Wash. 233 . 42 
Kilgour V. Gratto, 224 Mass. 78 . 413 

King V. Dedham Bank, 15 Mass. 447 . 59 
King County, Wash. v. United States 
Shipping Board E. F. Corp., 282 

Fed. 950 677 

Kingman i'. Brocton, 153 Mass. 255 113, 
114, 119, 474, 479, 486, 536 
Kinneen v. Wells, 144 Mass. 497 345, 527 
Kinney v. Treasurer and Receiver- 
General, 207 Mass. 368, 369 . : 460 
Knapp V. Railroad Co., 20 Wall. 117, 

122, 123 68 

Knickerbocker Ice Co. v. Stewart, 253 

U. S. 149, 164 . . . 185, 186 

Knights V. Treasurer & Recci\-er Gen- 
eral, 236 Mass. 336, 341 . . 225 

V. Treasurer and Rec. General, 

237 Mass. 493, 496 . 355, 540, 654 

Knowlton v. Moore, 178 U. S. 41 . 504 

Koffman v. Koffman, 193 Mass. 593 . 208 

Kohl V. United States, 91 U. S. 367, 

371 510 



367 



208 



412 
506 



673 



PAGE 

Kokomo Steel & Wire Co. v. Columbia 

Wire Co., 200 U. S. 621 
Lafiin, etc., Co. v. Steytler, 146 Pa. 

St. 4.34 

Lahr v. Metropolitan El. Ry. Co., 104 

N. Y. 268 

Lane r. Watts, 234 U. S. 525, 540 . 
Large Oil Co. v. Howard, 163 Pac. 

Rep. 537 ..... 
Lathrop v. Merrill, 207 Mass. 6. 10, 24; 

C. J. 204 . . . 421, 656 
Lawrence v. Smith, 201 Mass. 214 579, 580 
V. Board of Registration, 239 

Mass. 424, 428 . . . 628 

V. Wright, 23 Pick. 128 . . 656 

Lee V. Lynn, 223 Mass. 109, 112 .424 

Legal Tender Case, 110 U. S. 421, 444 251 
Lever Bros. Co. i'. Commonwealth, 

232 Mass. 22 .... 29 

Lewis r. Lynn Institution for Savings, 

148 Mass. 235, 243 ... .455 

Lindsley v. National Carbonic Gas Co., 

220 U. S. 61 .... 431 

Liverpool, etc.. Steamship Co. c. Com- 
missioners of Emigration, 113 U. S. 

33, 39 501 

Loan Assoc, c. Topeka, 20 Wall. 655 474, 

479, 486 
Logan u. Mayor & Alderman of Law- 
rence, 201 Mass. 506, 511 . 478 
Long Island Water Supply Co. v. 

Brooklyn, 106 U. S. 685 . . 510 

Loring v. Young, 239 Mass. 349 524, 525 
Loughborough i'. Blake, 5 Wheat. 317, 

318 497 

Louisiana v. Texas, 176 U. S. 1, 19 . 502 
Louisville & Nashville R.R. Co. v. 

Central Stock Yards Co.. 212 U. S. 

132 480,488 

Lowell r. Archambault, ]J>9 Mass. 70, 

73 284 

r. Boston, 111 Ma.ss. 454 . 53, 119, 

474, 479, 480, 482, 483, 531, 
536, 537, 653, 654 
V. County Cf)mmissioners, 152 

Mass. 372 623 

Lunt V. Post Printing Co., 48 Colo. 

316, 321 515 

Luther v. Borden, 7 How. 1 . . 502 

Lynn t. County Commissioners, 148 

Mass. 148, 151 . . . 184 
V. Polk, 8 Lea (Tenn.) 121 . 524 



CASES CITED. 



XXUl 



Ber- 
239, 



486 



609 



199 



223 



269 



485 
501 



PAGE 

MacLaren v. State, 141 Wis. 577 . 42 

Madisonville Traction Co. (. St 
nard Traction Co., 196 U. S 

251 

Maguire v. Tax Commissioner, 230 

Mass. 503. 506 . 
Mahoning Valley R. Co. v. Santoro, 93 

Ohio St. 33 

Main v. County of Plymouth 
Mass. 66, 09 . . . 

Mallinckrodt Chemical Works v. Mis- 
souri, 238 U. S. 41 . . . 
Marbury v. Madison, 1 Crunch, 137 
Marcus Brown Holding Co., Inc., v. 

Feldman, 256 U. S. 170 . 196, 446, 586 
Marsh v. Woodbury, 1 Met. 436 . 137 

Marshall v. .Jaquith, 134 Ma.ss. 138 . 160 
Martin v. \^'ithersl^oon, 135 Mass. 175, 

178 183, 587 

Martin L. Hall Co. v. Commonwealth, 

215 Mass. 326, 329 . 600, 634 

Mass. Agricultural College ; . Marden, 

156 Mass. 150, 156 .. . 106 

Mass. Election Cases, 1780-1852 . 215 

Mass. Inst, of Tech. t. Boston Society 
of Natural History, 218 Mass. 189 . 26, 

27. 28 
Matter of Heff, 197 U. S. 488, 505 . 503 

Hermance, 71 N. Y. 481, 486, 

487 253 

of Samuel Carver, 224 Mass. 169, 

172 135 

Maynard v. Hill, 125 U. S.*190 . . 185 

Mayne v. Huntington County, 123 

Ind. 132 547 

Mayor, etc., of Worcester v. Norwich 

& Worcester R.R. Co., 109 Mass. 103 149 
McClurg V. Brenton, 123 la. 368 . 290 

McCoach v. Minehill & Schuylkill 

Haven R.R., 228 U. S. 295 . . 95 

McCormick Harvesting Machine Co. 

V. Aultman Co., 169 U. S. 606 . 336 

McCready v. Virginia, 94 U. S. 391 . 177 
McCulloch !'. Maryland, 4 Wheat. 316, 

400, 401, 436 495, 501, 673 

McGlue V. County Commissioners, 225 

Mass. 59 346 

McGratti v. Boston, 103 Mass. 369 . 510 
McKeon v. New England R.R. Co., 

199 Mass. 292, 295 .. . 412 
McLennon i. Richardson, 15 Gray, 74, 
77 290 



PAGE 

McMahon c. Holyoke, 226 Mass. 450 157 
McNamara v. Boston & Maine R.R., 

216 Mass. 506 . . . 129 

McQuesten r. Atty.-Gen., 187 Mass. 

185 139, 170 

McRae v. Auditor General, 146 Mich. 

594 232 

Mead v. Acton, 139 Mass. 341 474, 479, 536 
Meade v. United States, 2 Ct. CI. 224 510 
Medford t. Learned. 16 Mass. 215 . 413 
Memphis, etc., R.R. Co. v. Railroad 

Commissioners, 112 U. S. 609, 619- 

623 241 

Merrick v. Amherst, 12 Allen, 500 . 649 
Milford V. County Commiss., 213 

Mass. 162. 165 . . . . 369 

Millard v. Roberts, 202 U. S. 429. 438 505 
Milligan v. Drury, 130 Mass. 428 . 87 
Millsaps V. City of Jackson. 78 Miss. 

537 422 

Minnesota Rates Cases. 230 U. S. 352 587 
Minot r. Baker, 147 Mass. 348, 351 . 71 

V. Winthrop, 162 Mass. 113 . 369 

Mississippi v. Johnson, 4 Wall. 475 . 505 
Missouri Pacific Ry. Co. «•. Nebraska, 

164 U. S. 403; 217 U. S. 196 . 486, 488, 

511 
Missouri v. Illinois <fc Sanitary District 

of Chicago, 180 U. S. 208, 241 . 503 

Moeckel v. Cross A: Co., 190 Mass. 280 482 
Monongahela Bridge Co. i'. United 

States, 216 U. S. 177 . . . 186 

Monongahela Nav. Co. v. United 

States, 148 U. S. 312 . . . 541 

Moore v. Stoddard, 206 Mass. 395, 

399 209, 551 

Moran v. Somes, 154 Mass. 200 . 211 

Morgan v. Richardson, 13 Allen, 410 . 172 
Motion Picture Co. v. Universal Film 

Co., 243 U. S. 502 . 485, 487 

Mount Hermon Boys' School i\ Gill. 

145 Mass. 139, 146 .. . 644 

Munn V. Illinois, 94 U. S. 113 . . 586 

Murphy v. Metropolitan Natl. Bank, 

191 Mass. 159, 165 .. . 172 

Muskrat v. United States, 219 U. S. 

346, 361 501 

Mutual Film Corpn. v. Industrial 

Commission of Ohio, 236 U. S. 230 183, 

446, 447 
Nash V. Brown, 165 Mass. 384 . . 42 
V. Commonwealth, 174 Mass. 335 75 



XXIV 



CASES CITED. 



PAGE 

X^ational Mahaiwe Bank i\ Peck, 127 

Mass. 29S 544 

National Prohibition Cases, 253 U. S. 

350 506 

National Surety Co. v. Architectural 

Co., 226 U. S. 276 . 413, 547 

Nelson v. State Board of Health, 186 

Mass. 330 468 

Newcomb t\ Inhabitants of Rockport, 

183 Mass. 74 ... . 596 

New England Trust Co. v. Abbott, 

205 Mass. 279, 282 . . .160 

New Orleans r. Warner, 175 U. S. 120, 

145 523 

New York v. ^l\\n., 11 Pet. 102. 139 . 495 
V. New Jersey, 256 U. S. 296, 301, 

302 503 

New York <fc O.swego Midland R.R. 

Co. r. Van Horn, 57 N. Y. 473 . 413 

New York Trvist Co. v. Eisner, 256 

U. S. 345 504 

Noble V. Union River Logging R.R. 

Co., 147 U. S. 165, 171, 172 . . .505 

Noble State Bank v. Haskell, 219 

U. S. 104, 112* . . . 485 

Northampton v. County Commis- 
sioners, 145 Mass. 108 . . 609 
Northwestern Laundry v. Des Moines, 

239 U. S. 486 . . 54 

Norton i-. Lilly, 210 Mass. 214, 217 . 656 
Oakes i: Hill, 14 Pick. 442, 448 . 328 

Offield V. New York, N. H. i^ H. R.R. 

Co., 203 U. S. 372 . . . 510 
OhioOilCo.i.. Indiana, 177 U.S. 190 . 431 
Old Colony Trust Co. v. Common- 
wealth, 220 Mass. 409, 413 . 280 
V. Medfield & Medway St. Ry. 

Co., 215 Mass. 156 .. . 647 

V. Wallace, 212 Ma.ss. 335 . 36 

Old Corner Book Store i\ Upham, 194 

Mass. 101 4S9 

Old South Society v. Crocker, 119 

Mass. 1, 26 71 

Olds r. City Tru.st, etc., Co. of Phila., 

185 -Mass. 500, 505 . . 240 

Oliverieii r. Atkinson, 168 Mass. 28 . 408 
Ollila I'. Huikari, 237 Mass. 54 . . 269 

Opinion of the Justices, 13 Allen, 593 172, 

273, 638 

10 Gray, 613, 615 . .345 

107 Mass. 604 . 248, 527, 528 

117 Mass. 603 . . 353, 681 



PAGE 

Opinion of the Justices, 122 Mass. 
600 . . . 158, 273, 345, 438 



136 N. E. 157 . 
138 Mass. 601, 603 
142 Mass. 601, 604 
145 Mass. 587, 590 
150 Mass. 586 . 
157 Mass. 594 . 
160 Mass. 586 . 

165 Ma.ss. 599 . 

166 Mass. 589 . 
175 Mass. 599 . 
186 Mass. 603 
190 Mass. 611 
193 Mass. 608 
207 Mass. 601 



1.35, 653, 654 

. 183 

. 346 

. 337 

. 248 

. 346, 347 

181, 184, 185, 188 

. 248, 527 

. 350, 599 

. 531 

474, 479, 492, 532, 537 

132, 134, 533 

. 484, 485 

. 19S 



208 Mass. 619, 622 53, 182, 412, 484 

210 Mass. 609 . . . 132, 131 

211 Mass. 608 . 132, 134, 474, 475, 

479, 482, 484, 534, 537 



214 Mass. 602, 606 
216 Mass. 605, 606 
220 Mass. 608 . 
226 Mass. 607 . 
229 Mass. 601 . 
234 Mass. 597, 608 
237 Mass. 619, 623 

239 Mass. 606 . 

240 Mass. 601 . 



. 348, 649 
. 353, 681 
347, 484, 488 
08, 345 
. 175 
54, 182 
158, 249. 273. 
383, 481,591 
. 391 
. 528, 601 
Oregon Nav. Co. c. Winsor, 20 Wall. 

64 489 

Osborn i\ Bank of United States, 9 
Wheat. 738, 867 . . 673 

)!. United States Bank, 9 Wheat. 

738, 846, 857 ... . 506 

Osgood e. Tax Commissioner, 235 

Mass. 88 16 

Oulighan v. Butler, 189 Mass. 287 . 482 
Oulton ('. Savings Institution, 17 Wall. 

109, 118, 119 . . .42 

Pacific States Teleph. A; Teleg. Co. v. 

Oregon, 223 U. S. 118 . . . 502 

Packard v. Old Colony Railroad, 168 

Mass. 92, 99 . . . 240 

Paine v. Woods, 108 Mass. 160, 169 . 467 
Palmer v. Barrett, 162 U. S. 399 . 596 

y. Hampden, 182 Mass. 511 . 408 

Parker v. May, 5 Cush. 336,3 39-340 . 139. 

170. 361, 362 

y. Marchant, 1 Younge & C. Ch. 

290, 300 42 



CASES CITED. 



XXV 



PAGE 

Parkersburg v. Brown, 106 U. S. 

4^7 474, 479 

Parkhurst v. Treasurer and Receiver 

General, 228 Mass. 196 . . 369 

Parkmant'. McCarthy, 149 Mass. 502 216 
Patsone v. Penn., 232 U. S. 138 . 142, 177, 

431 
Patten v. Deshon, 1 Gray, 325, 329 . 
Payne v. Gardiner, 29 N. Y. 146, 167 . 
Peabody v. Treasurer and Receiver 

General, 215 Mass. 129, 130 . 
Peace v. Wilson, 186 N. Y. 403 . 
Pennoyer v. McConnaughy, 140 U. S. 

1, 10 

Pennsylvania College Cases, 13 Wall. 

190 

Penn. Hospital v. Philadelphia, 245 

U. S. 20 . . . 28, 510 

People V. Allcutt, 189 N. Y. 517 . 373 

V. Aurora, 78 111. 218 . . 199 

— V. Black, 122 Calif. 73 . . 338 
V. Coler, 173 N. Y. 103; 12 C. J. 



44 
250 



460 
199 



506 



400 



806 



681 



V. Compagnie Gen. Transat- 

lantique, 107 U. S. 59, 62 . .291 

V. Ericson, 263 111. 368 . . 441 

V. Fire Assoc, 92 N. Y. 311 . 184 

V. Flynn, 189 N. Y. 180 . . 446 

V. Gordon, 194 111. 560 . . 373 

V. Harper, 91 111. 357, 307 . .291 

V. N. Y., etc., Ry. Co., 84 N. Y. 

565, 568, 569 ... . 253 

V. Steele, 231 111. 340 . . 446 

V. Tax and Assessment Commis- 
sioner, 11 Hun, 505, 507 . . 20 
People ex rel. Daily Credit Service Corp. 

r. May, 162 App. Div. (N. Y.) 215 14 
Perkins v. Westwood, 226 Mass. 268, 

271 482, 609 

Peters v. Stone, 193 Mass. 179, 186 43, 44 
Phelon 1'. Granville, 140 Mass. 386 . 360 
Philadelphia Co. v. Stimson, 223 U. S. 

605, 619, 620 ... . 506 

Phillips V. Allen, 2 Allen, 453 . . 208 

/;. Metropolitan Park Commiss., 

215 Mass. 502, 506 .. . 350 

Pierce v. Drew, 136 Mass. 75, 79 . 348 

V. Stevens, 205 Mass. 219 369, 370, 371 

Plumley v. Mass., 155 U. S. 461 . 431 
Pool V. Boston, 5 Cush. 219 . . 317 
Porter v. United States, 106 U. S. 607, 
611 296 



P.\GE 

Portland Bank v. Apthorp, 12 Mass. 

252, 256 

V. Maine Bank, 11 Mass. 204 . 

Powelson v. Tennessee Eastern Elec- 
tric Co., 220 Mass. 380 . 
Priestly v. Treasurer and Receiver 

General, 230 Mass. 452 
Pritchard v. Norwood, 155 Mass. 539 656 
Prout V. Roby, 15 Wall. 471 . . 44 

Quinn v. Hayden, 219 Mass. 343, 346 262 
Railroad Co. v. Peniston, IS Wall. 5, 

36, 37 

Ransom v. Boston, 192 Mass. 299, 304 
Rathke v. Gardner, 134 Ma.ss. 14 
Red "C" Oil Mfg. Co. v. North Caro- 
lina Board of Agriculture, 222 U. S. 

380 

Reed v. People, 125, 111., ,592 . 

r. Tarbell, 4 Met. 93, 101 . 

Reetz V. Michigan, 188 U. S. 504, 510 



253 

386 



221 



460 



673 
350 
157 



183 
42 
253 
142, 
143 
186 
440 
253 



Re KoUock, 165 U. S. 520 
Re Mcintosh, 211 N. Y. 265 
Renick v. Boyd, 99 Pa. St. 555 . 
Revere v. Boston Copper Go., 15 Pick. 

351 240 

Rex V. Clark, R. & R. C.C. 358 . 208 

V. Smith, 6 C. & P. 151 . . 208 

Rhines v. Wentworth, 209 Mass. 585 656 
Rhode Island v. Mass., 12 Pet. 657, 

736-738 502 

Rice X. Bradford, ISO Mass. 545 . 369 
r. Nat'l Bank of the Comm., 126 

Mass. 300, 304 . . . .240 

r. The Governor, 207 Mass. 577 . 122 

Richardson v. Essex Institute, 208 

Mass. 311 118 

Ripley v. Brown, 218 Mass. 33 . . 92 

Riverbank Improvement Co. v. Ban- 
croft, 209 Mass. 217 . . . 580 

V. Chadwick, 228 Mass. 242 486, 488, 

511, 540 
Rixey's Executors v. Commonwealth, 

125 Va. 337 . . .422 

Robbins v. Townsend, 20 Pick. 345, 350 328 
Robinson ;-. Brown, 126 Fed. Rep. 429 272 

V. Richardson, 13 Gray, 454 . 289 

Robinson's Case, 131 Mass. 376, 379 135, 

136 
Rockport V. Webster, 174 Mass. 385, 

392 467 

Rohan v. Sawin, 5 Cush. 281, 284 . 295 



XXVI 



CASES CITED. 



137 



46 
422 



198 



400 



PAGE 

Round r. Police Comniiesioner, 197 

Mass. 218 548 

Rubber Co. v. Goodyear, 9 Wall. 788, 

804 262 

Russell V. Howe, 12 Gray, 147 . . 681 

V. M'Lellan, 14 Pick. 63 . 240 

Russo V. Chapin, 197 Mass. 64 . . 570 

Sackett v. Sanborn, 205 Mass. 110, 112 316 
Salisbury Land & Improvement Co. 

V. Commonwealth, 215 Mass. 371, 

373 . 486, 511, 513, 540, 587 

Sanborn v. Carleton, 15 Gray, 399, 403 355 
Sanders i'. Partridge, 108 Mass. 556, 

558 

Sanford v. Hampden Paint it Chemical 

Co., 179 Mass. 10 . . . 
San Francisco v. Lux, 64 Cal. 481 
Sargent v. Stetson, 181 Mass. 371 
Sawyer v. Davi.5, 136 Mass. 239 
V. State Board of Health, 125 

Mass. 182, 192 . 
Schaghticoke Powder Co. v. Greenwich 

& Johnsonville R.R., 183 N. Y. 306 212 
Schultz V. C. H. Quereau Co., 210 

N. Y. 257 213 

Scott V. Willson, 3 N. H. 321, 325 . 298 
Shaw V. Ansaldi Co., Inc., 178 App. 

[N. Y.l Div. 589 .... 
Shea V. Mass. Benefit Assn., 160 Mass. 

289, 295 

V. Parker, 234 ALiss. 592 . 

Sheehan's Case, 122 Mass. 445 . 
Shrewsbury v. Boylston, 1 Pick. 105 . 
Silz r. He.sterberg, 211 U. S. 31 
Sinclair Refining Co. r. Federal Trade 

Commission, 276 Fed. 686 
Sklaroff v. Commonwealth, 236 Mass. 

87 

Sloan Shipyards Coip. v. L^nited 

States Shipping Board Emergency 

Fleet Corp., 258 U. S. 546 . 
Smith V. Higgins, 16 Gray, 251 . 
V. Northampton Bank, 4 Cush. 

1, 12 

Smyth V. Ames, 169 U. S. 466, 518, 519 506 
Snook's Petition, 2 Hilt. (N. Y.) 566, 

569 208 

Sohier v. Trinity Church, 109 Mass. 1, 

17 71 

Somerville v. Commonwealth, 225 

Mass. 589, 592 . . . 129 
V. Walker, 168 Mass. 388 . . 482 



264 

172 
221 
359 
210 
431 

488 

. 86 



676 
239 



422 



PAGE 

Soon Hing v. Crowley, 113 U. S. 703, 
710 523 

South Carolina r. United States, 199 
U. S. 437, 448 . . . . 503 

Sprague v. Dorr, 185 Mass. 10 . . 467 

V. Minon, 195 Mass. 581, 583 . 467 

S. S. AVhite Dental Mfg. Co. v. Com- 
monwealth, 212 Mass. 35, 38 . 253 

Standard Fashion Co. v. Magrane 

Houston Co., 258 U. S. 346 . . 485 

Standard Oil Co. v. Federal Trade 
Commission, 273 Fed. 478 . . 488 

r. United States, 221 U. S. 1 . 485 

Staniels v. Raymond, 4 Cush. 314, 

316 263, 551 

Stanley v. Colt, 5 Wall. 119, 169 71 

State V. Beardsley, 77 Fla. 803 . . 422 

V. Leland, 91 Minn. 321 . 42 

('. McGough, 118 Ala. 159, 167 . 291 

r. RaLston, 182 Ind. 150 . 232 

p. Sherman, 22 Ohio St. 411, 428 241 

V. Terra Haute, etc., R.R., 166 

Ind. 580 

State of Colorado >•. Harbeck, 232 N.Y. 

71 

State St. Tiust Co. v. Trea.surer & Re- 
ceiver General, 209 Mass. 373-378 . 
Stephens v. Mayor of Booneville, 34 

Mo. 323 

Stevens v. Episcopal Church History 

Co., 140 App. Div. [N. Y.] 570 
Stimson v. Brookline, 197 Mass. 568 157 
Stone V. Street Commissioners, 192 

Mass. 297 

r. Charlestown. 114 Mass. 214 . 

Storer v. Downey, 215 Mass. 273 
Story fi. New York El. R. Co., 90 

N. Y. 122 

Stoughton V. Baker, 4 Mass. 522, 530, 

531 194, 355 

Stoutenburgh r. Hennick, 129 U. S. 

141 182, 185 

Stroud V. Water Commissioners, 90 

Conn. 412 178 

Strout V. L'nited Shoe Machinery Co., 

215 Mass. 116, 119 . . 225 

Studley v. Ballard, 169 Mass. 295, 296 318 
Sullivan v. Kelly, 3 Allen, 148 . . 208 

Taber v. New Bedford, 177 Mass. 197 663 
Taft V. Adams. 3 Gray, 126, 130 424, 681 
Taunton & South Boston Turnpike 

Corpn. V. Whiting, 10 Mass. .320, 336 386 



524 



396 



160 



422 



264 



269 

184 
440 

412 



CASES CITED. 



XX VU 



Tax Commissioner v. Putnam, 227 

Mass. 522, 525 . . . . 609 

Taylor v. Beckham, 178 U. S. 548 . 681 
Teele v. Bishop of Derry, 168 Mass. 

341 69 

Texas v. Interstate Commerce Com- 
mission, 258 U. S. 158 . . . 506 
Thacher v. Weston, 197 Mass. 143 . 43 
Thomas v. Commonwealth, 215 Mass. 
369 212 

V. O'Sullivan, 6 Allen, 303 . 160 

V. West Jersey R.R. Co., 101 

U. S. 71 136 

Thomson v. Pacific R.R., 9 Wall. 579, 

590 673 

Thornton v. Marginal Freight Ry., 

123 Mass. 32, 34 . . . .68 

Tile Guaranty & Surety Co. v. Idaho, 

240 U. S. 136 . . . . 313 

Torrey v. Millbury, 21 Pick. 64, 67 . 617 
Transportation Co. v. Chicago, 99 U. S. 

635, 640 413 

Treasurer and Receiver-General v. 

City of Boston, 229 Mass. 83 228, 437 
Trowbridge v. Schmidt, 82 Miss. 475 . 232, 

233 
Truax v. Raich, 239 U. S. 33, 37 . 142, 

143, .506 
Tucker y. Boston, 223 Mass. 478 . 477 
Turner v. Dartmouth, 13 Allen, 291 . 1.57 

■ V. Maryland, 107 U. S. 38 . . 291 

United Shoe Machinery Corp. v. 

United States, 258 U. S. 451 . . 485 

United States v. American Woolen 

Co., 265 Fed. Rep. 404 . . . 2.54 
V. A. Schrader's Son, Inc., 252 

U. S. 85 . . . 485, 487, 542 

V. Beebe, 180 U. S. 343 . 170, 365 

V. Boyer. 85 Fed. 425 . . 498 

V. Burns, 12 Wall. 246 . . 366 

V. Clallam County, Wash., 283 

Fed. 645 677 

V. Coghlan, 261 Fed. 425 . . 677 

V. Cruikshank, 92 U. S. 542, 549- 

551 495 

- V. Des Moines Nav. & R. Co., 142 

U. S. 510, 545 ... . 523 

V. Emery, Bird, Thayer Realty 

Co., 237 U. S. 28 . . . . 95 

V. George, 228 U. S. 14, 20 . 183, 

184, 188 
V. Grimaud, 220 U. S. 506 . . 186 



P,\GE 



United States v. Jordan, 113 U. S. 
418 

I'. Lee, 106 U. S. 196, 204-208 . 

V. Mathews, 173 U. S. 381 

V. North Carolina, 132 U. S. 211, 

220 

V. Old Settlers, 148 U. S. 427, 463 

V. Palmer, 128 U. S. 262 . 

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

440 . . . 233, 236, 481, 

». Rykowski, 267 Fed. Rep. 866, 

871 

V. Saunders, 120 U. S. 126 

V. Standard Brewery, Inc., 251 

U. S. 210, 220 ... . 

V. Strang, 254 U. S. 491 . 

V. United Verde Copper Co., 196 

U. S. 207, 215 . . . 184, 

United States Housing Corp. v. Water- 
town, 113 Misc. Rep. (N. Y.) 679 . 
Upshur r. Baltimore City, 94 Md. 743, 

749 

Vanhorne's Lessee v. Dorrance, 2 Dall. 

304, 308, 309 ... . 

Vaughan v. Street Commissioners, 154 

Mass. 143, 145 . 
Veeder v. United States, 252 Fed. Rep. 

414, 418 

Vicksburg v. Vicksburg Water Works 
Co., 202 U. S. 453 .. . 

Vinton v. Welsh, 9 Pick. 87 
Virginia v. West Virginia, 11 Wall. 39 

V. West Virginia, 220 U. S. 1, 27 

Waite V. Macy, 246 U. S. 606 . 183, 
Wales V. Belcher, 3 Pick. 508, 509. 

510 184, 

Walker v. Treasurer and Receiver Gen- 
eral, 221 Mass. 600, 602 . 396, 
Walls V. Midland Carbon Co., 254 

U. S. 300 

Ward V. Maryland, 12 Wall. 418, 428 
Ware v. Fitchburg, 200 Mass. 61 70, 
Warren v. Pirn, 66 N. J. Eq. 353 

V. Shook, 91 U. S. 704, 710 

Washington v. Fairchild. 224 U. S. 510 
Watuppa Reservoir Co. v. Fall River, 

147 Mass. 548, 557, 564, 567 . 
Way V. Butterworth, 106 Mass. 75; 

108 Mass. 509, 513 
Wayland v. Ware, 109 Mass. 248, 250 
Wayman v. Southard, 10 Wheat. 1, 42 
Weeks v. Gibbs, 9 Mass. 74, 75, 76 . 



481 
505 
318 

232 
523 
366 

499 

290 
319 

183 
676 

188 

677 

218 

501 

422 

284 

68 
194 
502 
503 

188 

353 

460 

431 
497 
119 
338 
42 
486 

467 

42 
328 
185 
421 



xxvm 



CASES CITED. 



PAGE 

Weeks v. United States, 232 U. S. 383, 

389-392 290 

Welch V. Boston, 221 Mass. 155 . 460 

- V. Swasey. 193 Mass. 364 . . 440 

V. Treasurer and Receiver Gen- 
eral, 223 Mass. 87, 92 . . . 460 

West River B. Co. v. Dix, 6 How. 507 510 
Western Banking Go. v. Murray, 6 

Ariz. 215 42 

Western Union Telegraph Go. v. 

Andrews, 216 U. S. 165 . . 506 

Wheatland v. Boston, 202 Mass. 258 . 29 
Wheeler v. New York, 233 U. S. 434 . 460 
Wheelwright v. Tax Commissioner, 235 

Mass. 584, 586 . . . 369, 613 

White V. Chapin, 12 Allen, 516 . . 157 

V. Franklin Bank, 22 Pick. 181 . 340 

Whitney v. Hudson, 69 Mich. 189 . 517 

«.Sherborn, 12 Allen, 111 . . 408 

Whittaker v. Salem, 216 Mass. 483 . 474, 
479, 482, 483, 486, 535, 
537, 579, 653, 654 
Whittenton Mills v. Upton, 10 Gray, 

582, 585 ... . 

Wilbraham v. Ludlow, 99 Mass. 587 
Wilgus V. Commonwealth, 9 Bush 

(Ky.) 556 . 
William Cramp & Sons Co. v. United 

States, 216 U. S. 494 . . 170, 365 

William Gilligan Co. i'. Casey, 205 

Mass. 26, 31 . . . . 620 
Williams v. Acton, 219 Mass. 520, 524 421 
V. Milton, 215 Mass. 1 . . 460 

V. Talladega, U. S. 404, 419 . 673 

V. Rose, 218 Fed. Rep. 898 . 272 



240 

408 



137 



Willis V. Melvin, 53 N. C. 62 . 

V. Standard Oil Co., 50 Minn. 290 

Wilson V. Head, 184 Mass. 515, 518 



PAGE 

. 295 
291 

. 239, 
547 



V. Mass. Inst, of Tech., 188 Mass. 

565 26 

V. New, 243 U. S. 332, 384 . 149, 506 

Wingate v. Orchard, 75 Fed. Rep. 241 272 
Winnisimmet Trust Inc. v. Libby, 232 

Mass. 491, 492 . . . .44 

Winsor v. Mills, 157 Mass. 362 . . 43 

Winthrop v. Atty. Gen., 128 Mass. 

258 . . . . 68, 70, 92 

Wisconsin v. Pelican Ins. Co., 127 

U. S. 265 396 

Woodall V. Clifton, 1905, 2 Ch. 257 . 44 
Woodward v. Central Vermont Ry. 

Co., 180 Mass. 599 . 482, 483, 486 

V. Worcester, 15 Gray, 19/i . 129 

Worthing Corp. v. Heather, 1906, 

2 Ch. 532 44 

Worthington v. London Guarantee, 

etc., Co., 164 N. Y. 81 . . . 199 

Wright V. Dressel, 140 Mass. 147, 149 603 

V. Lyons, 224 Mass. 167 . . 482 

Wyeth V. Cambridge Board of Health, 

200 Mass. 474, 481 181, 183, 188. 198, 

447, 484 
Wyoming ex rel. Wyoming Agricul- 
tural College V. Irvine, 206 U. S. 278 106 
Young V. Duncan, 218 Mass. 346, 

351 536 

V. Jewell, 201 Mass. 385 . . 620 

Zonne v. Minneapolis Syndicate, 220 

U. S. 187 95 



OPINIONS 

OP 

J. WESTON ALLEN, ATT0ENEY-6ENERAL. 



Civil Service — Supervisor and Assistant Supervisor of 
Accounts — Officers — Approval of Governor and 
Council. 

The supervisor and assistant supervisor of accounts are officers, within the mean- 
ing of R. L., c. 19, § 9, since their duties are public and not merely clerical, 
and involve in their performance the exercise of some portion of the sovereign 
power. 

They are also officers whose appointment is subject to confirmation by the Exec- 
utive Council, within the meaning of R. L., c. 19, § 9, and therefore they may 
be appointed without compliance with the civil service law and rules. 

You ask whether, in view of my opinion of December 20, in xotheCom- 
relation to certain employees in the office of the Commissioner Civii Service. 

. . . 1921 

of State Aid and Pensions, the supervisor and assistant super- Ja nuary 3. 
visor of accounts are officers whose appointment is subject to 
confirmation by the Executive Council, within the meaning of 
R. L., c. 19, § 9, and therefore may be appointed without com- 
pliance 'svith the ci\al service law and rules. 

The offices of supervisor and assistant supervisor of accounts 
were created by St. 1908, c. 597, § 3, as amended by Gen. St. 
1919, c. 210, which provides as follows: — 

The auditor, with the consent of the governor and council, shall ap- 
point a supervisor, and an assistant supervisor of accounts, whose sala- 
ries shall be fixed by him, with the approval of the governor and council. 

The duties of the supervisor of accounts are defined by St. 
1908, c. 597, § 4, as follows: — 

Under the direction of the auditor, the supervisor of accounts shall 
direct and control all the accounts in all departments, and shall have 
full authority to prescribe, regulate and make changes in the methods of 



OPINIONS OF THE ATTORNEY-GENERAL. 

keeping and rendering accounts, and shall see that they are properly 
maintained, and that all items are correctly allocated between capital 
receipts and disbursements and operating revenue and expense. He 
shall establish in each department a proper system of accounts, which 
shall be uniform so far as is practicable. He shall establish a proper sys- 
tem of accounting for stores, supplies and materials, and may provide, 
where he deems it necessary, for a continuing inventory thereof. He 
may inquire into the methods of purchasing and handling such stores, 
supplies and materials by the departments, reporting to the auditor such 
changes as may in his judgment be deemed wise. He shall provide such 
safeguards and systems of checking as will insure, so far as is possible, 
the proper collection of all revenue due the commonwealth; and, where 
he deems it necessary, shall provide that forms and receipts shall be 
numbered consecutively, making the departments responsible for their 
use or cancellation. 

The duties of the assistant supervisor of accounts are not 
defined by statute. The word "assistant," however, implies 
that his duties are to assist the supervisor of accounts, and, in 
the absence of the supervisor, or during a vacancy in that office, 
temporarily to discharge those duties. 

It is my opinion that the supervisor and assistant supervisor 
of accounts are "officers," within the meaning of that word as 
used in R. L., c. 19, § 9; that is, that they are officers whose 
duties are in their nature public and not merely clerical, involving 
in their performance the exercise of some portion of the sovereign 
authority of the State. Atior7iey-GeneraI v. Tillirujhast, 203 
Mass. 539. Their duties, as established by the statute quoted 
above, give them a large measure of responsibility. The fact 
that those duties are performed under the direction of the 
Auditor does not change their character. 

In Attorney-General v. Tillinghast, supra, p. 544, it was said: — 

The fact that the authority of one officer is subordinate to that of an- 
other does not prevent him from being an officer. A subordinate or in- 
ferior officer is none the less an officer. 

There is a further question whether these oflScers are "officers 
. . . whose appointment is subject to confirmation by the ex- 
ecutive council," within the language of R. L., c. 19, § 9. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 

A former Attorney-General held, with respect to St. 1904, 
c. 409, § 4, by which the State Forester was "empowered,, sub- 
ject to the approval of the governor and council, to hire such 
assistants as he may need in the performance of his duties, and 
to fix their salaries," that the approval required by the statute 
was rather an approval of a scheme for proposed appointments 
and expenditures than a confirmation of the particular appoint- 
ment to be made. Ill Op. Atty.-Gen. 129. But in the present 
instance the offices are created and the duties defined by statute. 
It is my opinion that the statute creates these offices, and that 
the required consent and approval of the Governor and Council 
relate to the individuals appointed by the Auditor and the sal- 
aries fixed by him. 

I therefore advise you that said supervisor and assistant super- 
visor of accounts may be appointed without compliance with 
the civil service law and rules. 



Bonds — Registers of Probate — Premiums. 

Registers of probate, being charged with the duty of receiving money which 
they are required to pay over to the Treasurer and Receiver-General, by 
G. L., c. 217, §§ 18 and 20, are officials charged with the dut5' of receiving 
and disbursing money, under G. L., c. 30, § 17, and are therefore entitled to 
be reimbursed for amounts paid by them for premiums on their official bonds, 
required by G. L., c. 217, § 12. 

The Commonwealth is under obligation to reimburse registers of probate for 
payments of premiums on their official bonds, although no appropriation 
has been made and no money is available therefor. 

You ask my opinion whether registers of probate are entitled JudJ'tor 
to have the premiums on their official bonds paid by the Com- jonua^ry 4. 
monwealth. 

G. L., c. 30, § 17, provides as follows: — 

If an official having custody of property of the commonwealth, or 
charged with the duty of receivdng or disbursing money, is required to 
give bond to the commonwealth for the faithful discharge of his duty, the 
commonwealth shall reimburse him for the amount paid by him to a 
surety company for becoming surety on his official bond. Premiums 
on all surety bonds paid by the commonwealth shall be paid out of the 
appropriations for expenses of the several officers and departments. 



OPINIONS OF THE ATTORNEY-GENERAL. 

Each register of probate is required to give bond to the Treas- 
urer and Receiver-General for the faithful performance of his 
official duties. The statute (G. L., c. 217, § 12) is as follows: — 

Each register shall give bond to the state treasurer for the faithful per- 
formance of his official duties, in a sum not less than one thousand nor 
more than ten thousand dollars, as ordered by the judge, with one or 
more sureties approved by him. 

It is therefore necessary to determine whether a register of 
probate is "an official having custody of property of the com- 
monwealth, or charged with the duty of receiving or disbursing 
money." 

The duties of the register are defined in said G. L., c. 217. 
Among those duties are the following: — 

Section 15. The register shall have the care and custody of all books, 
documents and papers pertaining to his court, or deposited with the 
records of insolvency or filed in the registry of probate, and shall care- 
fully preserve them and deliver them to his successor. 

Section 18. The register shall furnish copies of records or other 
papers in his custody and shall collect the legal fees therefor. 

Section 20. The register shall annually, on the first Mondays of 
January, April, July and October, account for and pay over to the state 
treasurer all fees and compensation which have been received by him 
otherwise than by salary. 

While it may be questioned whether, under section 15, reg- 
isters are given custody of property of the Commonwealth, it 
is clear that under sections 18 and 20 they are charged with 
the duty of receiving money which they are required to pay 
over directly to the Treasurer and Receiver-General. Reg- 
isters are therefore such officials as are described in G. L., c. 30, 
§ 17. Accordingly, they are entitled to be reimbursed for 
amounts paid by them for premiums on their official bonds. 

It should be noted that the situation with respect to clerks 
of county courts is entirely different. Their bonds are given 
and accounting made to the treasurers of the respective counties 



J. WESTON ALLEN, ATTORNEY-GENERAL. 

(G. L., c. 221, §§ 12, 32). Their salaries also are paid by the 
counties (G. L., c. 221, § 97), while the salaries of registers are 
paid by the Commonwealth (G. L., c. 217, § 35). 

G. L., c. 30, § 17, also provides that "premiums on all surety 
bonds paid by the commonwealth shall be paid out of the ap- 
propriations for expenses of the several officers and depart- 
ments;" and you inform me that no appropriation for the ex- 
penses of registers of probate is made, and therefore no money 
will be available for paying the premiums. It is my opinion 
that these facts would not relieve the Commonwealth of its 
obligation to the registers, declared by section 17, and that the 
Legislature should make an appropriation for the purpose of 
paying such premiums. 



Salaries of OrncERS and Employees of the Commonwealth 
— Increases — Employees in Massachusetts Nautical 
School. 

G. L., c. 30, § 47, prohibits any increase in the salaries of officers and employees 
classified under G. L., c. 30, §§ 45-50, and exceeding or to exceed $1,000, 
authorized thereunder between December 1 and May 31 in any year, from 
taking effect xmtil June 1 following. 

It follows that no increase can be made which will be retroactive. 

You ask me to advise you whether or not the Board of ^ve*Councii"" 
Commissioners of the Massachusetts Nautical School may in- January 4. 
crease the salaries of ship's steward and ship's cook at the present 
time, and also whether, if such increases can be made, they may 
be retroactive. 

G. L., c. 30, §§ 45-50 (Gen. St. 1918, c. 228; Gen. St. 1919, 
c. 320), provide for the classification of certain State offices 
and positions. 

Section 45 defines the oflEices and positions subject to the 
statute as "all appointive offices and positions in the govern- 
ment of the commonwealth, except those in the judicial branch 
and those in the legislative branch other than the additional 
clerical and other assistance in the sergeant-at-arms' office." 

Section 47 is as follows : — 



OPINIONS OF THE ATTORNEY-GENERAL. 

Recommendations for increases in the salaries of officers and employees 
whose salaries are required by the preceding section to be fixed in ac- 
cordance with such classification and specifications, shall be submitted 
in the first instance to the supervisor, and if approved by him shall take 
effect upon notice by the supervisor to the commissioner of civil service 
and the state auditor. If the supervisor does not approve a proposed in- 
crease in salary, he shall report the recommendation of the department 
or institution with his owii recommendation to the governor and council 
whose decision shall be final, except that the governor and council shall 
not grant an increase in salary greater than that recommended by the 
department or institution. Increases in salaries granted under this sec- 
tion shall conform to such standard rates as may be established by rule 
or regulation in accordance with the preceding section. No increase in 
salary shall be granted under this section unless an appropriation sufficient 
to cover such increase has been granted by the general court in accord- 
ance with estimates for the budget filed as required bj^ law. No increase 
in a salary exceeding or to exceed one thousand dollars, authorized under 
this section between December first and May thirty-first, both inclusive, 
in any j'ear shall take effect until June first following or such later date 
as may be fixed by the department or institution recommending such 
increase, with the approval of the supervisor or the governor and council. 

The plain language of the last sentence in section 47 prohibits 
any increase in salary exceeding or to exceed .$1,000, authorized 
between December 1 and May 31 in any year, from taking effect 
until June 1 following. 

It appears from the papers you enclosed that the salaries 
about which you ask, if increased as proposed, would each ex- 
ceed .$1,000. It is clear, therefore, that by virtue of the express 
prohibition in section 47 such increase may not take effect until 
June 1, 1921. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 



Motor Vehicles — Chauffeurs. 

A person operating his own motor vehicle who receives compensation for any 

work or services in connection therewith is a chauffeur, within the meaning 

of Gen. St. 1915, c. 16. 
A person operating his own motor vehicle who transports stock or materials in 

any way directly connected with his business, and who does not receive 

compensation for such transportation, is not a chauffeur. 
A salesman working for the owner of a motor vehicle, who uses it in connection 

with the business of his employer, may be a chauffeur if he receives a portion 

of his pay for services in driving the motor vehicle. 
Such salesman may, at the discretion of the commission, be exempted from the 

definition of chauffeur and be designated as an operator, if his principal 

occupation is that of salesman and if his employer is a manufacturer or dealer. 

The following questions have been submitted to this depart- To the 

Commissioner 

ment tor answer : — of Pubiic 

Works. 
1921 

L Does the owner of a motor vehicle, who operates the same in con- ^'^ ""^'•y '^- 
nection with his business, transporting stock or materials or tools or fin- 
ished products in any way directly connected with his business, require 
a chauffeur's license? 

2. Does a salesman working for the owner of a motor vehicle, who uses 
the said motor vehicle for purposes of transportation of goods from place 
to place, or for the purpose of carrying samples, or for any other use in 
connection with the business of the owner of the motor vehicle, require 
a chauffeur's license? 

The word "chauffeur" was defined in St. 1909, c. 534, § 1, as 
follows : — 

"Chauffeur" shall mean any person who operates a motor vehicle 
other than his own and who directly or indirectly receives pay or any 
compensation whatsoever for any work or services in connection with 
motor vehicles, except only manufacturers, agents, proprietors of ga- 
rages and dealers, who do not operate for hire. An employee of a manu- 
facturer or a dealer whose principal occupation is that of a salesman may 
at the discretion of the commission be exempted from this definition and 
be designated as an operator. 

This statute was amended by Gen. St. 1915, c. 16, by strik- ,.■..''. 

ing out the words "other than his own." 

The purpose of the amendment apparently was to include 
within the definition of "chauffeur" persons operating their 



OPINIONS OF THE ATTORNEY-GENERAL. 

own motor vehicles who receive compensation for any work 
or services in connection with motor vehicles, with the excep- 
tions stated in the act. For example, a taxicab driver owning 
his own vehicle would not be a chauffeur, within the terms of 
the original act, but would be a chauffeur according to the act 
as amended. But one who operates his own motor vehicle in 
connection with his business, transporting stock or materials 
or tools or finished products in any way directl}' connected with 
his business, unless he receives compensation for such trans- 
portation, is not, in my opinion, a chauffeur, within the amended 
definition. Therefore, with the qualification stated, I answer 
your first question in the negative. 

A salesman working for the owner of a motor vehicle, who 
uses it for purposes of transportation of goods from place to 
place, or for the purpose of carrying samples, or for any other 
use in connection with the business of his employer, may be a 
chauffeur if he receives a portion of his pay for his services in 
driving the motor vehicle. But if his principal occupation is 
that of a salesman, and if his employer is a manufacturer or a 
dealer, he may, by the terms of the statute, at the discretion of 
the commission, be exempted from the definition of chauffeur 
and be designated as an operator. 



Commission appointed by the General Court — Expendi- 
tures — Report. 

Where the General Court has appointed a commission to investigate and to 
report on a fixed date, the General Court may extend the time for filing or 
may receive the report after the date fixed. 

Expenditures from money appropriated for expenses incurred in the preparation 
of the report may be authorized, although the expenses are incurred after 
the time fixed for filing, if they are incurred before the report is actually 
received. 

AudUor. ^y Resolves of 1920, chapter 85, an unpaid special commis- 

Janl?ary8. siou was Created "to investigate the question of prenatal and 

postnatal aid and care for mothers and their children." That 

resolve contains the following provision : — 



J. WESTON ALLEN, ATTORNEY -GENERAL. 

Said commission shall report its recommendations to the special ses- 
sion of the general court not later than November fifteenth, nineteen 
hundred and twenty, with drafts of such legislation, if any, as is recom- 
mended, with an estimate of the expense of carrying out its recommenda- 
tions and may expend for the purposes of said investigation and report 
such sums as the general court shall appropriate. 

By St. 1920, c. 629, item 27A-, a sum not exceeding $8,000 
was appropriated for expenses of said commission. 

I am informed by you that the commission proceeded with 
the investigation, but that it did not "report its recommenda- 
tions to the special session of the general court not later than 
November fifteenth, nineteen hundred and twenty," as directed; 
and that you have received bills for personal services of em- 
ployees covering the period from December 1 to December 11, 
inclusive. 

You ask my opinion as to the propriety of passing bills in- 
curred after November 15, in this case, or after the date on which 
the commissions are required to report, in other cases. 

The term of office of the commission to which your inquiry is 
specifically directed and its authority to investigate the questions 
stated are expressly limited by the resolve to a period of time 
expiring on Nov. 15, 1920. 

By the established custom in the General Court, if a com- 
mittee or commission is not ready to make its report within 
the time directed, application may be made to the General Court 
for an extension of time within which the General Court will 
receive such report; but the General Court may receive the re- 
port after the date fixed by act or resolve creating the commis- 
sion when no application has been made and no order passed 
extending the time. 

In the present instance, application could not be made to the 
special session to extend the time fixed for filing the report be- 
yond November 15, because the special session of the Legislature 
did not convene until after that date. The report was filed on 
December 7, which was the day when the special session con- 
vened, and the report was received and acted upon on that 
date. 



10 OPINIONS OF THE ATTORNEY-GENERAL. 

While the report could have been filed with the clerk of either 
branch of the General Court, if the commission had been pre- 
pared to report, on November 15 or any prior date, the report 
was in fact filed on the earliest day upon which any action could 
be taken upon it. 

I understand you raise the question generally whether a com- 
mission appointed to investigate and report to the General Court 
on a fixed day may expend money thereafter without author- 
ization so to do by an act or resolve of the General Court. The 
expenditure of public money, except for certain special purposes, 
cannot be authorized upon an order, but only by act or resolve 
which receives the signature of the Governor. It is to be ob- 
served, however, that your inquiry relates only to the payment 
of money the expenditure of which has already been authorized 
and the money appropriated. The authority of the Legislature 
• to receive a report after the date upon which it was ordered to 

be filed cannot be questioned. If, therefore, the Legislature by 
an order extends the time during which it will receive the report, 
I am of the opinion that any proper expenses incurred in the 
preparation of the report must be held to have the sanction of 
the Legislature, and to be legally incurred, if they are within the 
amount appropriated. This necessarily follows from the fact 
that the reason for extending the time, in the ordinary case, is 
because the report is unfinished and further work remains to be 
done by the commission. The same rule would generally apply 
in a case where the General Court receives the report after the 
date fixed for filing, without having extended the time, although 
this might not be true in all cases. 

It is not necessary to determine whether a commission, after 
the date originally fixed for filing its report, could expend money 
already appropriated to conduct fm-ther investigations or for 
other purposes not incidental to the preparation of its report. 
A case might arise where further investigation was necessary, 
owing to new conditions arising after the investigation had been 
concluded and when the report was about to be filed. The need 
of further investigation might be the reason for extending the 



J. WESTON ALLEN, ATTORNEY-GENERAL. 11 

time for receiving the report. I leave this question to be de- 
termined if occasion may arise. 

A further question is presented by reason of the fact that the 
special commission in the present case filed its report on the 
seventh day of December, and you state that you have received 
"bills for personal services of employees covering the period 
from December 1 to December 11, inclusive." The filing of its 
report terminated the life of the commission, and it could not 
thereafter authorize any expenditures. If, however, prior to the 
filing of the report any proper expenditure was authorized for 
services which could not be completed at the time of filing, such 
as the return of papers and documents used by the commission, 
such an expenditure would be properly incurred, and should 
be paid. 

Insurance — Agreement by Company guaranteeing Credit 
Report as True Statement of Facts set forth — Re- 
sponsibility FOR Accuracy of Own Work — Contract 
OF Insurance. 

An agreement by a company guaranteeing that a credit report, at the date of 
such report, is a true statement of the facts which it sets forth, and limiting 
the responsibility of the company to any error of statement, advice or recom- 
mendation which misleads or causes loss to the subscriber, and further stipu- 
lating that payment shall be for the actual net loss caused by such error, 
is not a contract of insurance. 

You have requested my opinion as to whether any features To the Com- 

iTiipsionGr of 

contained in a form of agreement of The Credit Clearing House insur^ce. 
involve insurance. The agreement reads as follows: — Ja nuary lo. 

THE CREDIT CLEARING HOUSE. 

, President. 



Suhscri-ption for 

Guaranteed Credit Service. 

In consideration of % , paid in advance, the subscriber hereto 

employs The Credit Clearing House with the use of its system of credit 
clearances and its guaranteed credit service to furnish the subscriber 



12 OPINIONS OF THE ATTORNEY-GENERAL. 

with warranted recommendations, reports, or expert advice concerning 

transactions and accounts of an aggregate amount not exceeding $ , 

upon which inquiries shall be made during the period ending , 

192 , upon the conditions and warranties set forth hereinafter. 

Correct Information. 
The subscriber agrees that at the time he makes inquiries he will give 
correct information as to the amount of order, amount owing, terms 
and manner of payment. The subscriber agrees to file with The Credit 
Clearing House a list of his active accounts, to report all orders received, 
to answer all requests made by The Credit Clearing House for informa- 
tion within fortj^-eight hours from the time when the requests are re- 
ceived, to file on the 15th of each month a list of all past due accounts, 
and to notify said The Credit Clearing House immediately of any un- 
favorable changes in accounts advised upon. The subscriber further 
agrees to substantiate the information which he contributes, and to treat 
as confidential all recommendations or information received from the 
said The Credit Clearing House and to use same exclusively for his own 
use and benefit. 

Guaranteed Service. 
The Credit Clearing House warrants the accuracy and reliability of 
its service, and agrees to accept full responsibility for any error of state- 
ment, advice or recommendation made in WTiting by itself or any agent 
negligently or otherwise which misleads and causes loss to the subscriber; 
provided, however, that in each transaction the folloitying conditions are 
fulfilled: — 

1. The subscriber relied fully on said recommendation and acted 
without change in any detail or condition as directed therein, and was 
misled thereby, and suffered loss as a consequence. 

2. The subscriber in case of claim of loss returns said original written 
recommendation given by The Credit Clearing House with the forms 
for oath and conditions for proof of loss printed thereon filled out and 
sworn to and mailed by registered post to said The Credit Clearing 
House, four-forty Fourth Avenue, New York City, within thirty days 
after the account becomes due or payable, or when requested by The 
Credit Clearing House. 

3. There is no dispute, counterclaim, set-off, or defense whatsoever 
to said account or debt; and 

4. The account or debt is assigned without reservation and delivered 
to The Credit Clearing House within thirty days after becoming due 
or payable, and in case of unfavorable change of said account, and when 
requested by The Credit Clearing House. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 13 

It is also agreed that this warranty be construed as a representation 
of accurate services and a promise to assume liabiHty for net losses to 
the subscriber caused by error in misleading recommendations, reports 
or advice of The Credit Clearing House or its agents. 

Payment of Losses. 
It is agreed that The Credit Clearing House shall pay to the subscriber 
upon the terms and conditions herein set forth the actual net loss to 
the subscriber caused by error, advice or recommendation made in writing 
by itself or any agent negligently or otherwise which misleads and causes 
loss to the subscriber as hereinafter described and determined. The 
method of determining the amounts, if any, to be paid by the Company 
to the subscriber shall be as follows : — 

1. All discounts, and credits of any nature, whether running from the 

debtor to the subscriber or to The Credit Clearing House, plus 

per cent for collection fees and profits shall be deducted from the loss 
claimed. 

2. The subscriber shall be paid said actual net loss less per 

cent within days after the loss is finally determined by The Credit 

Clearing House. 

3. The subscriber will prove that he filed his claim of loss and assign- 
ment of the debt to The Credit Clearing House by producing WTitten 
acknowledgment on the part of The Credit Clearing House or its agents 
of receipts of said claim and assignment. 

In order to make recovery for loss simple and direct, it is under- 
stood that the sworn proof of loss and the assignment shall be deemed 
prima facie evidence of error or mistake on the part of The Credit Clear- 
ing House or its agents. The Credit Clearing House is hereby permitted 
to reserve to itself, in case the subscriber fails to fully co-operate the right 
to terminate the subscription at any time on the repayment of the amount 
for the unexpired portion of this contract. 

G. L., c. 175, § 47, cl. 10, provides that a company may be 
incorporated — 

To carry on the business commonly known as credit insurance or 
guaranty, either by agreeing to purchase uncollectible debts, or otherwise 
to insure against loss or damage from the failure of persons indebted to 
the insured to meet their liabilities. 

The statute defines insurance to be "an agreement by which 
one party for a consideration promises to pay money or its 



14 OPINIONS OF THE ATTORNEY-GENERAL. 

equivalent, or to do an act valuable to the insured, upon the 
destruction, loss or injury of something in which the other party 
has an interest." G. L., c. 175, § 2. 

The essential element of insurance is that the insured receives 
indemnity from destruction, loss or injury by reason of the hap- 
pening of events without his control or the control of the insurer. 
1 Op. Atty.-Gen. 545. 

The agreement set forth in full above cannot be considered 
insurance, since it involves no risk or hazard which is insured 
against, nor, employing the words of the statutory definition, 
the destruction, loss or injury of something in which the member 
has an interest. By the terms of the agreement The Credit 
Clearing House merely guarantees that the report which it makes 
is, at the date of such report, a true statement of the facts Avhich 
it sets forth, and limits its responsibility to any error of state- 
ment, advice or recommendation which misleads or causes loss 
to the subscriber, and stipulates that payment shall be for the 
actual net loss caused by such error of such statement, advice or 
recommendation. 

Your attention is called to the case of People, ex rel. Daily 
Credit Service Corporation v. May, 162 App. Div. [N. Y.], 215. 
In that case the facts were that a business corporation assumed 
a responsibility to its clients for the accuracy of its reports, and 
provided the measure of damages in case they proved to be in- 
accurate, and not otherwise, the damages not to exceed in any 
event the amount of credit extended by the client of the cor- 
poration to the customer on whom the corporation reported, 
and not to exceed the amount of loss actually sustained by the 
client. The court held in that case that such a corporation 
was not carrying on an insurance business. In discussing the 
case the court says : — 

This is not insurance; it is merely permitting the corporation to charge 
for and receive the vakie of its services in their relation to the responsi- 
bility assumed. It does not guarantee the solvency of any one; it merely 
guarantees that the report which it makes is, at the date of such report, 
a true statement of the facts which it sets forth, and limits its responsi- 
bility to such report, stipulating that in no event shall the damages exceed 



J. WESTON ALLEN, ATTORNEY-GENERAL. 15 

the amount of the credit which may be extended upon the basis of such 
report. This does not assume to pay any damages where the report is 
truthful and accurate; it does not assume any Habihty whatever for the 
credit extended, unless the credit was extended upon the basis of a report 
which was in fact inaccurate and false in material respects, and then it 
merely seeks to have the amount of the damages fixed by contract rather 
than by actions at law. It is one thing to guarantee the accuracy of 
one's own work, and quite another to assume the risk of future insolvency. 

The court, in summing up, points out that the corporation 
gives to its customers a guaranteed basis of fact : — 

It says, in a given case, John Smith on the 1st day of January, 1914, 
had $10,000 in a certain bank; he had a stock of goods inventoried at 
$15,000 on which there was a chattel mortgage for $5,000; he owned a 
store building of the value of $5,000, on which there was a lien of $2,500, 
and had bills receivable of $3,000, and bills payable of $2,700. On this 
basis the merchant determines whether he wants to accept the risk of 
giving credit, and with this the corporation has no relation whatever. If 
the facts are as stated the corporation has performed its contract and 
has no further responsibility in the premises; the risk — the insurance of 
the credit — is either carried by the merchant or by some corporation 
having a charter to carry on an insurance business. 

This line of reasoning, in my opinion, is sound, and applies 
with equal force to the agreement which you have submitted 
to me. Accordingly, I am of the opinion that the agreement in 
question will not, if executed, be a contract of insurance. 



Taxation — Income Tax — Distribution or Capital of 
Domestic Corporation in Liquidation. 

Where a domestic corporation transfers all its assets to another, receiving in 
exchange cash and securities which it distributes an[iong its stockholders in 
liquidating its affairs, the stockholders receive no income which is taxable 
under either Gen. St. 1916, c. 269, § 2, or § 5, cl. (c), now G. L., c. 62, § 1, 
and § 5, cl. (c), respectively. 

A Massachusetts corporation transferred all its assets to a TotheCom- 
newly organized Massachusetts corporation, receiving in exchange corporations 

, '^p 11 ••PI • mi 1 1 ^""^ Taxation. 

therefor cash and securities oi the new corporation, ihe old ^ i92i 

January 11. 

corporation liquidated and wound up its affairs by a distribu- — — 



16 OPINIONS OF THE ATTORNEY-GENERAL. 

tion of the proceeds of the exchange among the stockholders. 
You ask whether the stockholders should be taxed on account of 
that transaction at 3 per cent, under Gen. St. 1916, c. 269, § 5, 
cl. (c), or whether the transaction comes within the terms of 
section 2 of the act. 

Section 2 provides as follows: — 

Income of the following classes received by any inhabitant of this 
commonwealth during the calendar year prior to the assessment of the 
tax shall be taxed at the rate of six per cent per annum : 

(6) Dividends on shares in all corporations and joint stock companies 
organized under the laws of any state or nation other than this com- 
monwealth, . . . 

No distribution of capital, whether in liquidation or otherwise, shall 
be taxable as income under this section; but accumulated profits shall 
not be regarded as capital under this provision. 

Section 5 provides : — 

Income of the following classes received by any inhabitant of this 
commonwealth during the calendar year prior to the assessment of the 
tax, shall be taxed as follows: 

(c) The excess of the gains over the losses received by the taxpayer 
from purchases or sales of intangible personal propert}% whether or not 
the said taxpayer is engaged in the business of dealing in such property, 
shall be taxed at the rate of three per cent per annum; . . . 

It is my opinion that the transaction does not result in income 
to the stockholders, taxable under section 5, clause (c). The 
stockholders have not bought, sold or exchanged their stock. 
They have merely received a distribution in liquidation of their 
proportionate shares of the assets of the old corporation. The 
form of the transaction distinguishes this case from Osgood v. 
Tax CoiiiViissioner, 235 Mass. 88. There the plaintiff stockholder 
exchanged shares of one corporation for shares of another, or- 
ganized for the purpose of succeeding to the business of the 
former. In the present instance the stock of the old corporation 



J. WESTON ALLEN, ATTORNEY-GENERAL. 17 

was not exchanged, but its assets, in the form of cash and se- 
curities of the new corporation, were distributed among its stock- 
holders in dissohition. 

Moreover, there seems to be no provision in section 2 author- 
izing the taxation of this distribution to the stockholders. 
Clause (6) provides for taxation of dividends on shares of foreign 
corporations, but neither dividends nor other distributions of 
profits of a domestic corporation are taxable under that section. 



Treasurer and 



Collection Agency — Branch Office — Additional Bond, 

A person who conducts a collection agency and who has filed with the Treasurer 
and Receiver-General a bond in compliance with G. L., c. 93, § 24, is not 
required, upon opening a branch office, to file an additional bond. 

You request my opinion on the following facts : — To the 

1 • 1 • 11 Treasur-. 

A person domg busmess under the name and style of " Pilgrim Receiver 
Service," of Springfield, Mass., filed a collection agency bond janiar^ 12 
for $5,000, under the provisions of St. 1910, c. 650, as amended 
by Gen. St. 1919, c. 101 (now G. L., c. 93, §§ 24-28). He now 
desires to open a branch office in the city of Worcester, and has 
requested a duplicate of the certificate of acceptance of this bond, 
as issued by the Treasury Department, so that he may have proof 
of compliance with the law. Your specific question is whether or 
not the statute permits a person or persons to open a branch office 
to do a collection agency business without furnishing a bond for 
each branch. 

The statutory provisions relative to the giving of a bond by 
persons conducting collection agencies are now found in G. L., 
c. 93, §§ 24-28, inclusive. Section 24 of said chapter provides, so 
far as is pertinent to your question, that no person shall conduct 
a collection agency, collection bureau or collection office, or engage 
in the Commonwealth solely in the business of collecting or re- 
ceiving payment for others of any account, bill or other indebted- 
ness, or engage in the Commonwealth solely in soliciting the right 
to collect or receive payment for another of any account, bill or 
other indebtedness, or advertise for or solicit in print the right to 



18 OPINIONS OF THE ATTORNEY-GENERAL. 

collect or receive payment for another of any account, bill or 
indebtedness, unless such person, or the person, partnership, 
association or corporation for whom he may be acting as agent, 
has on file with the State Treasurer a good and sufficient bond. 
Section 27 provides : — 

The state treasurer shall keep a record, open to public inspection, of 
the bonds filed with him under the preceding section, with the names, 
places of residence, places of business of the principals and sureties, 
and the name of the officer before whom the bond was executed or 
acknowleged. 

It is my opinion that a person conducting a collection agency, 
and who has filed with your office a bond in compliance with the 
law, is not required, upon opening a branch, to file with you an 
additional bond. 



Towns — Public Library — Support. 

A library in a town, to which the inhabitants have free access and of which they 
have the use, although it is not a town library owned and controlled by the 
town, is a public library for the maintenance of which a town may appropri- 
ate money under G. L., c. 40, § 5, cl. (18), and c. 140, § 172. 

Mass. Const. Amend. XLVI, § 2, does not prohibit the use of public money for 
a library primarily intended for the use of the public, and to which the public 
is freely admitted. 

IfVubh?"^^"**^' The Worthington Library was organized as a corporation on 
' 7^n^' June 28, 1900, under P. S., c. 40, § 16, "to establish and maintain 
— — " ' a public library, with reading rooms communicating therewith," 
in the town of Worthington. It is not a town library owned and 
controlled by the town, but is, however, a library to which the 
inhabitants have free access and of which they have the use. You 
ask whether it is a library for the maintenance of which a town 
may appropriate money. 

G. L., c. 40, § 5, provides as follows: — 

A town may at any town meeting appropriate money for the following 
purposes : 

(18) For the establishment, maintenance or increase of a pubUc U- 
brary therein, and for the erection or provision of suitable buildings or 



J. WESTON ALLEN, ATTORNEY-GENERAL. 19 

rooms therefor, or for maintaining a library therein to which the inhabit- 
ants have free access and of which they have the use, and for estabhsh- 
ing and maintaining a pubHc reading room in connection with and under 
the control of the managers of such library. 



G. L,, c. 140, § 172, provides as follows: 



Money received by a county treasurer under the preceding sections 
relating to dogs, and not paid out for damages, shall, in Januarj^, be 
paid back to the treasurers of the towns in proportion to the amounts 
received from such towns, and the money so refunded shall be expended 
for the support of public libraries or schools. In Suffolk county, money 
so received by the town treasurer and not so paid out shall be expended 
by the school committee for the support of public schools. 

Similar provisions of the Revised Laws were considered in an 
opinion of a former Attorney-General (II Op. Atty.-Gen. 316). 
That opinion reads as follows : — 

Your letter of January 16 requests the opinion of the Attorney-General 
upon the question whether a town may lawfully appropriate money re- 
ceived from dog licenses to the support and maintenance of any library 
to which the inhabitants have free access and of which they have the 
use, although such library is not owned and controlled by the town. 

R. L., c. 102, § 163, provides that money received under the provisions 
relating to dogs shall be paid back to the treasurers of the cities and 
towns, "and the money so refunded shall be expended for the support of 
public libraries or schools;" R. L., c. 25, § 15, provides that a town may 
appropriate money for the following purposes, among others: "For the 
establishment, maintenance or increase of a public library therein, and 
for the erection or provision of suitable buildings or rooms therefor;" 
and "For maintaining a library therein, to which the inhabitants have 
free access and of which they have the use, and for establishing and main- 
taining a public reading room in connection with and under the control 
of the managers of such library." 

The question is, whether a library not owned and controlled by the 
town, yet open to the free access and use of the inhabitants of the town, 
is a public library within the meaning of c. 102, § 163. The apparent 
argument against including such a library within the phrase "public 
Hbrary" is that in c. 25, § 15, above quoted, the Legislature seems to 
make a distinction between such library and a public library, by pro- 
viding, in separate paragraphs, for their maintenance. 

I am of opinion, however, that no such distinction was intended, and 
that, whether a library is owned by the town or not, dog license money 



20 OPINIONS OF THE ATTORNEY-GENERAL. 

may be appropriated to it so long as the inhabitants of the town have 
free access to it. 

The situation has changed since this opinion was rendered only 
by the passage of Mass. Const. Amend. XLVI, § 2, providing, in 
part, that — 

No grant, appropriation or use of pubUc 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, maintaining 
or aiding any school or institution of learning, whether under public 
control or otherwise, wherein any denominational doctrine is inculcated, 
or any other school, or any college, infirmary, hospital, institution, or 
educational, charitable or religious undertaking which is not pubUcly 
owned and under the exclusive control, order and superintendence of 
public officers or public agents authorized by the commonwealth or 
federal authority or both, except 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. 

In the debates in the Constitutional Convention, vol. I, pp. 
144-146, the question of the meaning of the words "free public 
libraries" was discussed. It was stated that the words were in- 
tended to designate libraries founded and primarily intended for 
the public, which are open to the public and in which the public 
has a beneficial interest; that the object of the exception was to 
allow appropriations of public money to libraries wholly or in part 
under private control. 

The words "public library" are not technical and are not 
generally limited to designate merely a library under public control, 
but are generally used as descriptive of any library to which the 
general public has free access. People v. Tax and Assessment 
Commissioner, 11 Hun, 505, 507; 32 Cyc. 1248. 

I am of opinion that the words "free public libraries," as used 
in this amendment, are used in the sense as defined in the opinion 
hereinbefore quoted and the other authorities cited above, and 
that they include all libraries which, as in the case of the Worthing- 
ton Library, are primarily intended for the use of the public and to 
which the public is freely admitted. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 21 



Boxing Exhibitions — Payment to the Commontv'ealth. 

The words "total gross receipts" in G. L., c. 147, § 40, mean the total amount 
actually received and retained, and in determining that amount sums refunded 
on account of the illness of a boxer should be deducted. 

A social and athletic club gave a boxing exhibition at which TotheCom- 

, , . missioner of 

there was taken in from the sale of tickets or from admission fees PubUc Safety, 
the sum of $6,184: Because of the illness of the boxer who was to Ja nuary 25. 
take part in the main bout, the principal feature of the exliibition 
was not given. You state that the licensees claim that they have 
refunded a greater portion of the fees collected tO' the persons 
attending such exliibition, and that they also issued tickets to 
others good for the next exhibition. You ask me to advise you 
whether or not the 5 per cent due the Commonwealth on the total 
gross receipts of this entertainment, under G. L., c. 147, § 40, 
should be computed on the sum taken in at the exhibition. 
G. L., c. 147, § 40, provides, in part, as follows: — 

Every licensee holding or conducting any such boxing or sparring 
match or exhibition shall, within seventy-two hours after its conclusion, 
pay to the state treasurer a sum equal to five per cent of the total gross 
receipts from the sale of tickets or from admission fees ; . . . 

I cannot pass on the question of fact whether a portion of the 
receipts was refunded to persons attending the exhibition, and 
whether tickets were issued to others good for the next exhibition. 
Assuming, however, that such was the case, I advise you that the 
words "total gross receipts," as used in G. L., c. 147, § 40, mean 
the total amount actually received and retained ; that in determin- 
ing that amount any sums returned to persons in attendance should 
be deducted; and that the 5 per cent should be calculated on the 
balance. It is obvious that where the admission was not returned, 
but tickets were issued for the next exhibition, the tax on the 
admission paid is due, but there will be no further tax on these 
tickets, as they will be used without any further payment for 
admission. 



22 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Com- 
missioner of 
Public Works. 

1921 
January 28. 



State Highways — Certificate of Layout — Order of 
Taking — Land outside Existing Public Way — Statu- 
tory Notice — Indemnification of the Commonavealth. 

The preliminary requirements referred to in G. L., c. 79, § 1, in the case of the 
laying out of State highways, are found in G. L., c. 81, § 5. 

There is no objection to incorporating the order of taking in the certificate required 
in laying out a State highway, if it is necessary to take land for the purposes 
of a State highway outside the limits of an existing public way. 

In cases where it is necessary to take land outside the limits of an existing public 
way, notice should be given in compliance with G. L., c. 79, § 8; in such cases, 
also, the provisions as to the indemnification of the Commonwealth are found 
in G. L., c. 81, § 7. 

You request my opinion upon several questions arising out of 
the interpretation of the provisions in the General Laws con- 
cerning the taking of land by eminent domain for the purposes 
of State highways. 

First. — You call attention to G. L., c. 79, § 1, which provides, 
in part, that — 

A board of officers upon whom authority to take real estate by emi- 
nent domain on behalf of any body politic or corporate has been conferred 
by law, having first complied with all the preliminary requirements pre- 
scribed by law, may adopt an order of taking. 



You state that in the laying out of municipal or county ways 
there are various provisions as to certain preliminary require- 
ments which are to be complied with before adopting an order 
of taking. In the case of State highways, however, you state 
that there seem to be no provisions of law which prescribe any 
arrangements preliminary to the order of taking for a State high- 
way. Therefore, you ask as to what bearing the words "having 
first complied with the preliminary requirements prescribed by 
law" have upon any orders of taking which may be adopted 
by the Department of Public Works. 

To this question I reply that section 1, above quoted, con- 
tains the general provisions as to the taking of real estate by 
eminent domain on behalf of any body politic or corporate, and 
the words "having first complied with all the preliminary re- 



J. WESTON ALLEN, ATTORNEY-GENERAL. 23 

quirements prescribed by law" are general, and apply to those 
boards of officers as to whom preliminary requirements are 
prescribed by the statutes. The preliminary requirements in 
the case of the laying out of State highways are found in G. L., 
c. 81, § 5. ^ 

Second. — You ask whether your department should include 
an order of taking of any land in your layout with the order that 
the department signs making the layout; in other words, if the 
certified papers required in laying out a State highway under the 
provisions of G. L., c. 81, § 5, can be included in the order of 
taking prescribed by G. L., c. 79, § 1, or whether there should 
be two separate documents. 

G. L., c. 81, § 5, provides that — 

If the division [of highways] determines that public necessity and 
convenience require that such way should be laid out or be taken charge 
of by the commonwealth, it shall file in the oflSce of the county commis- 
sioners for the county where the way is situated a certified copy of a 
plan thereof, a copy of the petition therefor, and a certified copy of a 
certificate that it has laid out and taken charge of said way in accord- 
ance with said plan, and shall file in the office of the clerk of such town 
a copy of the plan showing the location of the portion lying in each town 
and a copy of the certificate that it has laid out and taken charge of said 
highway in accordance with said plan, and thereafter said way shall be 
a state highway. 

Section 7 provides, in part : — 

If it is necessary to acquire land for the purposes of a state highway 
outside the limits of an existing public way, the division may take the 
same by eminent domain on behalf of the commonwealth under chapter 
seventy-nine. 

Section 1 of said chapter 79 provides, in part, that — 

A board of officers upon whom authority to take real estate by emi- 
nent domain on behalf of any body politic or corporate has been con- 
ferred by law, having first comphed with all the prehminary require- 
ments prescribed by law, may adopt an order of taking, which shall con- 
tain a description of the land taken sufficiently accurate for identifica- 
tion, and shall state the interest therein taken. 



24 OPINIONS OF THE ATTORNEY-GENERAL. 

In my opinion, there is no objection to the incorporating in 
the certificates required in the laying out of a State highway 
under the provisions of section 5 of chapter 81, the order of 
taking prescribed by section 1 of chapter 79, if it is necessary in 
a given case to take land for the purposes of a State highway out- 
side the limits of an existing public way. 

Third. — You state that, under chapter 79 read in connection 
with chapter 81, it is difficult to see how the owner will receive 
any notification of the taking of his land until after the taking has 
been made and damages awarded. 

In reply to this question I would state that, as has been pointed 
out before, in case it is necessary to take land outside the limits 
of an existing public way, the Division of Highways is to take 
the same by eminent domain under the provisions of G. L., 
c. 79, which is the chapter containing the general provisions rela- 
tive to eminent domain. Section 8 of said chapter contains the 
provisions relative to notice. Compliance by the Division of 
Highways with the requirements set forth in that section will 
give the proper legal notification to the owner of property taken. 

Fourth. — You ask if, in making a layout for a State highway, 
it is necessary to acquire land privately owned, it is sufficient to 
have the county, city or town indemnify the State, they in turn 
assuming all responsibility for land damages by that indemnifica- 
tion, or, in case of a taking involving such property, must the 
Commonwealth proceed under eminent domain and take the 
land itself, and, under section 7 of chapter 81, be indemnified by 
the county, city or town which guarantees reimbursement. 

In reply to this question, I would state that the provisions as 
to the indemnification of the Commonwealth in cases where it is 
necessary to take land outside the limits of an existing public 
way are found in G. L., c. 81, § 7, which reads as follows: — 

The mayor, if so authorized by the aldermen, or the selectmen, if so 
authorized by the town, may stipulate in wTiting, in behalf of the city 
or town to indemnify and save harmless the commonwealth against all 
claims and demands for damages which may be sustained by any per- 
sons whose property has been taken for, or has been injured by the lay- 
ing out or alteration of, any highway which the division proposes to lay 



J. WESTON ALLEN, ATTORNEY-GENERAL. 25 

out and construct or alter as a state highway, and thereupon such city 
or town shall be liable ultimately for the amount of any verdict against 
the commonwealth for such damages, and for costs, and the amount 
thereof may be recovered by the convmonwealth in contract. 



Commonwealth — Land of Massachusetts Institute of 
Technology — Eminent Domain. 

The Massachusetts Institute of Technology may sell to the Commonwealth the 
bare legal title to land conveyed to it by St. 1861, c. 183, but the land when 
so conveyed would be subject to the equitable easements arising from the 
restrictions contained in that act. 

The erection of a memorial column or a statue would not be inconsistent with the 
maintenance of a square "as an open space." 

St. 1861, c. 183, does not limit or infringe upon the right of the Commonwealth 
to exercise the power of eminent domain. 

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

Memorial 

1. Has the Massachusetts Institute of Technology the right to con- Commission, 
^vey to the Commonwealth the "westerly two-thirds of the square between Ja nuary 28. 

Newbury, Boylston, Berkeley and Clarendon Streets on the Back Bay 
in the city of Boston," to be used as a site for a memorial to Massa- 
chusetts soldiers and sailors who have served the nation in time of war? 

2. Has the Commonwealth the right to take said property for the 
said purpose by eminent domain? 

I shall discuss these questions in the order in which I have 
just stated them. 

1. The land in question was conveyed to the Massachusetts 
Institute of Technology (hereinafter called the institute) by 
St. 1861, c. 183. Section 3 of said act contained a description 
of the square on which the buildings of the institute and of the 
Boston Society of Natural History were subsequently erected, 
and provided that it should be "reserved from sale forever, and 
kept as an open space, or for the use of such educational institu- 
tions of science and art as are hereinafter provided for", — i.e., 
the institute and the Boston Society of Natural History. The 
act contained certain other restrictions, among theni one to the 
effect that the institutions named should not erect buildings 
covering more than one-third of the area granted to them, re- 



26 OPINIONS OF THE ATTORNEY-GENERAL. 

spectively (§7), and provided that, under certain circumstances, 
the Commonwealth might re-enter. 

By St. 1903, c. 438, § 1, the rights remaining in the Common- 
wealth with reference to the westerly two-thirds of the square 
above described, which is the parcel under discussion, were re- 
leased to the institute in the following language : — 

All the proprietary right, title and interest by way of reversion, right 
of re-entry or otherwise, remaining to the Commonwealth in that tract 
of land, being the westerly two-thirds of the square between Newburj^ 
Boylston, Berkeley and Clarendon streets on the Back Bay in the city of 
Boston, which the Massachusetts Institute of Technology is authorized 
by chapter one hundred and eighty-three of the acts of the year eighteen 
hundred and sixty-one to hold and improve, is hereby released to the 
said Massachusetts Institute of Technology, its successors and assigns. 

By section 2 the restriction contained in St. 1861, c. 183, § 7, 
was cancelled or discharged " subject to the rights, if any, of other 
parties and to the restrictions hereinafter set forth." 

In 1904 the question arose whether the act of 1903 operated 
to permit the institute to cover with its buildings more than two- 
thirds of the area previously granted to it. The court held that 
it did not, because third persons had bought lots facing the said 
square in reliance upon the said restriction remaining in force, 
and the restriction therefore constituted an equitable easement 
appurtenant to said lots. Wilson v. Mass. Inst, of Technology, 
188 Mass. 565; see also Riverbank hnprovement Co. v. Chadwick, 
228 Mass. 242. 

In Mass. Inst, of Technology v. Boston Society of Natural History, 
218 Mass. 189, it was held that the words "shall be reserved from 
sale forever, and kept as an open space, or for the use of such 
educational institutions" created a similar equitable easement. 
Construing the words quoted, the court said that they did not 
prevent a sale of the " bare legal title," but they did prevent a sale 
of the land that would defeat the purpose of the quoted words, 
which purpose was that the land should either be used by the 
educational institutions named in the act of 1861, or should be left 
as "an open space." 



J. WESTON ALLEN, ATTORNEY-GENERAL. 27 

The circumstances of the neighborhood may have changed 
considerably since these restrictions were created. If so, that 
fact might prevent a specific enforcement of the restrictions, but 
they would still remain in existence and would be the subject of 
pecuniary compensation. Mass. Inst, of Technology v. Boston 
Society of Natural History, swpra, 196. 

It follows from what has been said that the institute may 
reconvey to the Commonwealth the "bare legal title" to this 
land, but when so reconveyed, the land would be subject to 
the equitable easements arising from the restrictions contained 
in the act of 1861. That is to say, the land would no longer be 
used by the institute, and therefore the Commonwealth would 
be required to maintain it "as an open space"; or, if the restric- 
tions should be held not to be specifically enforceable on account 
of changes in the neighborhood, and the Commonwealth should 
erect buildings upon the land, then the Commonwealth would be 
obliged to compensate the owners of the equitable easements 
created by the various restrictions. 

Your letter does not state what type of memorial is proposed. 
I am of the opinion that the erection of a memorial column or 
statue would not be inconsistent with the maintenance of the 
square "as an open space." However, that statement raises a 
question not susceptible of being definitively answered without 
all the details of the proposed memorial before me. 

I answer your first question affirmatively, but with the proviso 
that a reconveyance to the Commonwealth would, nevertheless, 
leave the land subject to all restrictions contained in the act of 
1861. 

2. "The act (of 1861) did not attempt to bargain away or 
infringe upon the future exercise of any sovereign rights, and 
the cases which deal with such a state of facts have no application 
here." Mass. Inst, of Technology v. Boston Society of Natural 
History, supra, 191. That is to say, the Legislature did not intend, 
by enacting the statute of 1861, to limit or infringe the right of 
the Commonwealth to exercise later the power of eminent domain 
in respect to this property. If the act had been intended to have 
the effect suggested, it would probably have been unconstitutional 



28 



OPINIONS OF THE ATTORNEY-GENERAL. 



in that respect. Pennsylvania Hospital v. Philadelphia, 245 U. S. 
20. 

Your second question, therefore, should be answered in the 
affirmative. But it should be added that if the land in question 
should be taken by eminent domain for a purpose which, when 
carried into effect, would violate the restrictions contained in 
the act of 1861, it would be necessary to compensate all owners 
of equitable easements in the land taken. These owners are 
"owners of the lots abutting on Boylston, Clarendon and Newbury 
streets and facing the square in question. They [the restrictions] 
were not intended for the benefit of the lots fronting on Berkeley 
Street, which had been sold before the passage of the act." Mass. 
Inst, of Technology v. Boston Society of Natural History, supra, 196. 



To the 

Treasurer and 
Receiver Gen- 
eral. 

1921 
January 31. 



Taxes — Abatement — Statutory Remedy Exclusive. 

An application for abatement of taxes claimed to have been illegally assessed, 
made more than six months after payment, cannot be granted. 

The remedies provided by statute for the correction of a tax illegally assessed 
are exclusive, and no relief can be had unless the method prescribed is followed. 

As chairman of the Board of Appeal, application has been made 
to you for an abatement of taxes assessed upon the West End 
Street Railway under Gen. St. 1918, c. 252, and Gen. St. 1919, 
c. 342, upon the ground that in view of the decision in Attorney- 
General V. Boston & Albany R.R. Co., 233 Mass. 460, the company 
was not a corporation doing business for profit, and the assessment 
was consequently illegal. This application was not made until 
Jan. 13, 1921, which was more than six months after the payment 
of both said taxes. You ask my opinion whether, assuming that 
the taxes were improperly assessed, the Board of Appeal may 
properly grant the application. 

The remedies provided by Gen. St. 1918, c. 255, are an appli- 
cation within ten days to the Board of Appeal for a correction of 
the tax (§4), and a petition within six months to the Supreme 
Judicial Court for an abatement (§7). This latter section provides 
that "said petition shall be the exclusive remedy." 



J. WESTON ALLEN, ATTORNEY-GENERAL. 29 

By Gen. St. 1919, c. 342, § 1, the statute of the previous year 
was revived and re-enacted, and thereby the same remedies were 
provided for a correction or abatement of a tax assessed for that 
year. 

Another remedy for abatement of an illegal tax is provided 
by Gen. St. 1919, c. 146 (G. L., c. 58, § 27), which is as follows: — 

If it shall appear that a legacy and succession tax or a tax or excise 
upon a corporation, foreign or domestic, which has been paid to the 
commonwealth, was in whole or in part illegally exacted, the commis- 
sioner may, with the approval of the attorney general, issue a certificate 
that the party aggrieved by such exaction is entitled to an abatement, 
stating the amount thereof. The treasurer shall pay the amount thus 
certified to have been illegally exacted, with interest, without any ap- 
propriation therefor by the general court. No certificate for the abate- 
ment of any tax shall be issued under this section unless application there- 
for is made to the commissioner within the time prescribed by law for 
beginning legal proceedings to obtain a repayment of the tax. This 
section shall be in addition to and not in modification of any other 
remedies. 

The Supreme Judicial Court has held in a number of cases that 
where a tax is illegally assessed, and even if the tax is uncon- 
stitutional and wholly void, the remedy provided by statute is 
exclusive, and the taxpayer can have no relief unless he follows 
the method prescribed. Wheatland v. Boston, 202 Mass. 258; 
Attorney-General v. East Boston Co., 222 Mass. 450; International 
Palmer Co. v. CoiiiVionweaUh, 232 Mass. 7; Lecer Bros. Co. v. 
Coininomcealthy 232 Mass. 22. 

By St. 1920, c. 462, the Legislature provided for an abatement 
of excise taxes levied upon foreign corporations under St. 1914, 
c. 724, which subsequently was held by the Supreme Court of the 
United States to be unconstitutional. 

It is my opinion that the Board of Appeal has no authority 
to allow an abatement of the taxes in question, and that the 
only remedy which the company has is by application to the 
Legislature for relief. 



30 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Com- 
missioner of 
Public Health. 

1921 
January 31. 



Public Health — Dispensary — Last National Census. 

G. L., c. Ill, § 57, requiring cities and towns having a population of 10,000 or 
more as determined by the last national census, to establish and maintain a 
dispensary, applies whenever by a national census a town has a population 
of 10,000 inhabitants. 

You have asked if a town whose population according to the 
1920 census is more than 10,000, but which was below that num- 
ber in the previous census, is subject to the provisions of St. 
1911, c. 576, as amended by St. 1914, c. 408. 

The present law is to be found in G. L., c. Ill, § 57, and reads, 
in part, as follows : — 

Every city, and every town having a population of ten thousand or 
more, as determined by the last national census, shall estabUsh and main- 
tain within its limits a dispensary for the discovery, treatment and super- 
vision of needy persons resident within its limits and afflicted with tuber- 
culosis. 



In the act of 1914 instead of the words "last national census" 
were the words "latest United States census." It does not ap- 
pear that any substantive change was made in the law by the 
general revision, and the words "last" and "latest" are presumed 
to be synonymous. There is nothing to indicate that a particular 
census enumeration was intended to determine the duties of towns. 
If such had been the case the language of the statute would have 
been such as to make it clear. The reasonable interpretation is 
that the Legislature intended to exempt towns of less than 10,000 
inhabitants from the operation of the law, but when the growth 
of a town reached that figure, the statute would automatically 
operate. 

It is my opinion that the law applies whenever by a national 
census a town has a population of more than 10,000 inhabitants. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 31 



Civil Service — Assignment to Special Duty — Necessity 
FOR Examination. 

A person designated by the Commissioner of Public Safety to investigate into 
the causes of fires, pursuant to G. L., c. 148, § 4, need not take a civil service 
examination, since such designation is an assignment to special duty rather 
than an appointment or promotion. 

You inquire whether the person designated by the commis- TotheCom- 

■^ .... missioner of 

sioner pursuant to G. L., c. 148, § 4, must take a competitive civil PubUc safety. 
service examination as the condition of such designation. You Ja nuary 3i. 
state that with the concurrence of the Supervisor of Adminis- 
tration you allow to the person so designated $300 a year to make 
up for the traveling and meal expenses received by fire-prevention 
inspectors upon active duty, in which the person designated does 
not participate because his work confines him to the office. 
The material part of G. L., c, 148, § 4, provides as follows: — 

The marshal shall investigate or cause to be investigated the cause 
and circumstances of all fires of which he has notice, as provided in the 
preceding section, by which property has been damaged, or destroyed, 
especially to ascertain whether the fire was caused by carelessness or 
design. For these purposes the marshal or some person designated by 
the commissioner may summon and examine on oath any person sup- 
posed to know or have means of knowing any material facts touching 
the subject of investigation. . . . 

It casts upon the marshal a duty to investigate or cause to be 
investigated the cause and circumstances of certain fires. If the 
marshal himself makes the investigation, there is, of course, no 
need for designating some other person to make it. Thus the 
duty to be performed by the person designated, if a designation 
be made, is both special and temporary. Even though a stand- 
ing designation be made, which I infer is your intention, there 
appears to be nothing in the act which prevents alteration thereof 
at your pleasure. Under these circumstances, such designation 
appears to be an assignment to perform a special duty rather 
than an appointment to a position or a promotion. I am there- 
fore of opinion that such designation is not subject to the rules 
of the civil service, and does not require a civil service examination. 



32 



OPINIONS OF THE ATTORNEY-GENERAL. 



Prisoner — Successive Sentences - 

OF Sentence. 



Parole — Expiration 



To the Com- 
missioner of 
Correction. 

1921 
February 1. 



A prisoner in a jail or house of correction, whose sentence for another offence to 
the same institution is to begin "from and after expiration of" the first 
sentence, is eligible to parole upon the first sentence when not more than six 
months of it remain unexpired. 

The successive sentences must be considered separately. 

A parole upon the first sentence does not cause that sentence to expire. 

Where a prisoner is paroled upon the first sentence, he cannot be committed to 
the institution upon the second sentence until the first has expired. 

You state the following facts : — 

A person was committed to the Suffolk County House of Cor- 
rection on Dec. 28, 1919, for a term of twelve months. Within 
a few days thereafter he was sentenced to two months in the 
house of correction "from and after expiration of" the first sen- 
tence. You do not state by what courts these sentences were 
imposed. 

Upon these facts you ask my opinion whether the penal in- 
stitutions commissioner of the city of Boston has powder, with 
the permission of the probation officer and the district attorney, 
to parole said prisoner from the first sentence. 

The statute governing the matter was formerly R. L., c. 225, 
§ 121, as amended by St. 1902, c. 227, and by St. 1912, c. 158, 
§ 1. It is now G. L., c. 127, § 141, which provides: — 

A probation officer may, with the consent of the county commissioners, 
or, in Suffolk county, of the penal institutions commissioner of Boston, 
investigate the case of any person imprisoned in a jail or house of cor- 
rection upon a sentence of not more than six months, or upon a longer 
sentence of which not more than six months remain unexpired, or for 
failure to pay a fine, for the purpose of ascertaining the probability of 
his reformation if released from imprisonment. If after such investiga- 
tion he recommends the release of the prisoner, and the court which im- 
posed 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 on parole, upon such terms and 
conditions as they may prescribe, and may require a bond for their ful- 
filment. The surety upon any such bond may at anj^ time take and sur- 
render his principal, and the county commissioners or the penal institu- 



J. WESTON ALLEN, ATTORNEY-GENERAL. 33 

tions commissioner may at any time order any prisoner released by them 
to return to the prison from which he was released. This section shall 
not applj' to persons held upon sentences of the courts of the United 
States. 

The meaning of the quoted language is clear where the prisoner 
is confined under one sentence only. The question raised, how- 
ever, is whether, or how, the section applies to the case of a 
prisoner confined under one sentence and later sentenced for 
another offence to further confinement in the same institution 
"from and after expiration of" the first sentence. 

The first possible solution that suggests itself is that, for pur- 
poses of parole, the two sentences shall be added together and 
considered as one. Section 133 of the same chapter makes 
express provision for this in the case where a convicted person 
is confined under two or more sentences in the State Prison, but 
no such provision is contained in section 141. Its omission from 
that section may be due to the fact that persons confined in the 
State Prison are often confirmed criminals, while persons confined 
in jails and houses of correction are usually not of that character. 
At all events, the provision contained in section 133 has not been 
included in section 141, and it is therefore impossible to apply the 
latter section as if that provision were included. 

It follows that the prisoner's successive sentences must be con- 
sidered separately. When they are so considered, the question 
arises whether the fact that a second sentence awaits the prisoner 
upon expiration of the first renders section 141 inapplicable. I 
am of the opinion that it does not. The section not only omits 
special provision for such a case, but it provides no express ex- 
ception when it arises. After examination of other sections of 
the same chapter, I am unable to find that the Legislature in- 
tended an exception to be implied. 

Considering the first sentence separately, as it must be con- 
sidered, and in the absence of either a special provision or an 
exception when a second sentence awaits the prisoner upon 
expiration of the first, I am of opinion that the prisoner in ques- 
tion may be paroled upon his first sentence when not more than 
six months of it remain unexpired. 



34 OPINIONS OF THE ATTORNEY-GENERAL. 

I am aware that this conckision leads to an unusual result. 
A parole upon the first sentence does not cause it to "expire," 
as is shown by the fact that the person paroled may be returned 
to confinement upon a breach of parole. The effect of parole 
is merely to enlarge the prison to the limits within which the 
person released is required to remain. Consequently, if the 
prisoner is paroled upon his first sentence, he cannot be required 
to begin immediately confinement under his second. As that 
confinement is to begin from the expiration of his first sentence, 
a restraint of his liberty under the second sentence, prior to such 
expiration, that is, prior to twelve months from and after Dec. 
28, 1919, would be illegal. Unless pardoned for the second of- 
fence, therefore, or again paroled, he would be required to return 
to prison Dec. 28, 1920, to serve his second sentence. 

In my annual report to the General Court for the year 1920 
I have directed attention to the fact that confusion has arisen 
where persons are confined upon two or more sentences in penal 
institutions of the Commonwealth other than the State Prison, 
and that the opinions of officials charged with the administration 
of our State and county institutions differ as to the interpretation, 
which should be given to the laws upon this subject. Although 
the intent of the Legislature is not clear from the language of 
the statutes, the foregoing opinion states the law as I understand 
it. It may well be that the Legislature, in passing the act, now 
embodied in G. L., c. 127, § 141, did not have before it for con- 
sideration the application of the law in the case of successive sen- 
tences. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 35 



Corporations — Foreign Corporations — Doing Business — 
Appointment of Unregistered Foreign Trust Company 
AS Trustee of Real Estate under a Will. 

A trust company organized under the laws of another State which has not been 
authorized to do business in this Commonwealth, as required by G. L., 
c. 167, § 37, cannot be appointed trustee under a will disposing of real estate 
situated in this Commonwealth. 

Qucere, whether, under G. L., c. 172, § 52, a foreign trust company authorized to 
do business in this Commonwealth, as required by G. L., c. 167, § 37, could 
be appointed trustee under a will disposing of real estate situated in this 
Commonwealth. 

You inquire whether a trust company organized under theTotheCom- 

'■ . . missioner of 

laws of another State, which has not received authority to trans- ^''"j^g^j 
act business in this State, may be appointed and become trustee Fe bruary 3. 
under a will of property, real and personal, situated in this Com- 
monwealth. 

G. L., c. 167, § 37, provides, in part: — 

No foreign banking association or corporation shall transact business 
in this commonwealth until it has received a certificate from the board of 
bank incorporation, authorizing it so to do. ... 

There can be no doubt that a trust company organized under 
the laws of another State is a "foreign banking association or 
corporation," within the meaning of this provision. The ques- 
tion therefore becomes whether such corporation, if it acts as 
trustee under a will of property situated in this State, is "trans- 
acting business in this commonwealth." In my opinion, it is. 
G. L., c. 172, §§ 1 and 52, provide: — 

Section 1. Whenever used in this chapter, unless the context other- 
wise requires the words "trust company" or "such corporation" mean 
a trust company incorporated as such in the commonwealth, and the 
"commissioner" means the commissioner of banks. 

Section 52. Such corporation may be appointed executor of a will, 
codicil or writing testamentary, administrator with the will annexed, 
administrator of the estate of any person, receiver, assignee, guardian, 
conservator or trustee under a will or instrument creating a trust for the 
care and management of property, under the same circumstances, in 



36 OPINIONS OF THE ATTORNEY-GENERAL. 

the same manner, and subject to the same control by the court having 
jurisdiction of the same, as a legally qualified individual. Any such 
appointment as guardian shall apply to the estate and not to the per- 
son of the ward. Such corporation shall not be required to receive or 
hold property or money or assume or execute a trust under this section 
or of section fifty without its assent. 

The corporate power of a domestic trust company to act as 
executor or trustee is derived from these provisions of law. Old 
Colony Trust Co. v. Wallace, 212 Mass. 335. See also First 
National Bank v. Fellows, Attorney-General, 244 U. S. 416. When 
a domestic trust company acts as trustee pursuant to these 
powers, it is manifestly transacting a part of the corporate busi- 
• ness which it is authorized by law to transact. If a foreign 
trust company should act as trustee, it would likewise be " trans- 
acting business." As a trust of land situated in this Common- 
wealth is subject to the control of our courts, the principal busi- 
ness of the trust must be transacted here. It follows that a 
foreign trust company could not act as trustee of land situated 
in this State without "transacting business in this common- 
wealth," within the meaning of G. L., c. 167, § 37. As the trust 
company in question has not received authority to transact 
business in this Commonwealth, it follows that it cannot be- 
come such trustee or act as such. 

You do not ask, and I leave for future determination, whether 
a foreign trust company, admitted to transact business in this 
State under G, L., c. 167, § 37, et seq., could even then be ap- 
pointed an executor, administrator or trustee in this common- 
wealth, in view of the fact that G. L., c. 172, § 52, expressl}' 
applies to domestic trust companies only. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 37 



Garage — Abutter. 

A parcel of land does not abut upon another unless it touches it. 

A parcel of land across the street from and opposite the site of a proposed garage 

is not land abutting thereon, within the meaning of St. 1913, c. 577, § 1, as 

amended by St. 1914, c. 119, § 1. 

St. 1913, c. 577, § 1, as amended by St. 1914, c. 119, § 1, pro- xotheCom- 

. , (•11 inissioner of 

VldeS as lOlloWS : — • PubUc safety. 



In the city of Boston no building shall be erected for, or maintained as 
a garage for the storage, keeping or care of automobiles until the issue 
of a permit therefor by the board of street commissioners of the city after 
notice and a public hearing upon an application filed wath said board. 
The application for the permit shall be made by the owner of the parcel 
of land upon which such building is to be erected or maintained and shall 
contain the names and addresses of every owner of record of each parcel 
of land abutting thereon. 

You request my opinion whether a parcel of land across the 
street from and opposite the site of a proposed garage is "land 
abutting thereon," within the meaning of the section quoted. 

In Corpus Juris, vol. I, p. 377, an abutter is defined as "one 
whose property abuts, is contiguous, or joins at a border or 
boundary, as wdiere no other land, road, or street intervenes." 
At page 376, "to abut" is defined as "to terminate or border; 
to be contiguous; to meet." The case of Hutchinson v. Danley, 
88 Kan. 437, is referred to, where it was said that "abutting" 
signifies a closer proximity than "adjacent." 

I am of opinion that one parcel of land does not abut upon 
another unless it touches it. 

When lots lying upon a street are bounded by the curb line, it 
is clear that a parcel of land on one side of the street does not 
abut upon a parcel lying opposite to it on the other side of the 
street. 

The presumption is, however, that where land is bounded by 
a street, the boundary line is the middle of the street. Where 
that presumption is borne out by the fact, it is true in a narrow 
and rather technical sense that lots opposite each other are con- 
tiguous. But as a practical matter, the two lots are separated 



1921 
February 4. 



38 



OPINIONS OF THE ATTORNEY-GENERAL. 



by the street, for the owners can make no use of the ground over 
which the street extends that would interfere with its use by the 
pubHc. The lots abut upon the street rather than upon each 
other. The definition from Corpus Juris, above quoted, in- 
cludes the phrase "as where no other land, road, or street inter- 
venes," and makes no distinction in the case where lot lines run 
to the middle of the street. 

In Holt V. SoittemiUe, 127 Mass. 408, it was held that where 
a street lay between certain lots and a park, the former did not 
abut upon the latter. The court did, indeed, remark that the 
boundary of the park was the side of the street, but they did not 
intimate that the result would have been otherwise if such had 
not been the case. 

St. 1913, c. 577, § 3, as amended by St. 1914, c. 119, § 2, pro- 
vides : — 

At the time and place specified in the notice for the hearing the said 
board shall hear all parties interested, and after giving consideration to 
the interests of all owners of record notified, and the general character 
of the neighborhood in which is situated the land or building referred 
to in the application, shall determine whether or not the application 
shall be granted and a permit issued. 

By the two sections quoted a distinction has clearly been 
made between abutters and "parties interested." The owner 
of a lot across the street from the site of a proposed garage is 
a party interested, but not an abutter. 

I am of the opinion that your question should be answered 
in the negative. 

Taxes — Rate or Interest. 



Under G. L., c. 59, § 57, where taxes remain unpaid after the expiration of three 
months from the date on which they became payable, interest is chargeable 
from the due date at the rate of 6 per cent upon a tax not exceeding 
and at the rate of 8 per cent upon that portion of the tax in excess of $200. 



To the Com- 
missioner of 
Corporations 
and Taxation. 

February 4. froHi and after the due date. 



You state that A's tax in one town in one year was $201, and 
that the whole amount remains unpaid at the end of three months 

You then ask my opinion upon the 
following question : — 



J. WESTON ALLEN, ATTORNEY-GENERAL. 39 

Is interest to be charged from the due date at 6 per cent on $200 and 
at 8 per cent on $1, or is it to be charged at 8 per cent on 1201. 

You have my opinion (V Op. Atty.-Gen., 649) in which the 
statute (St. 1920, c. 460, now G. L., c. 59, § 57) is set out in 
full. I quote here, therefore, only that part of section 57 which 
is directly involved : — 

At the rate of six per cent per annum on all taxes and, by way of pen- 
alty, at the additional rate of two per cent per annum on the amount of 
all taxes in excess of two hundred dollars assessed to any taxpayer, in 
any one city or town, if such taxes remain unpaid after the expiration of 
three months from the date on which they become payable. 

I have italicized certain words of the quoted portion of the 
section in order to indicate a very significant fact: in the clause 
prescribing a 6 per cent rate, the word "amount" is not used, 
but it is used in the clause prescribing an 8 per cent rate. The 
6 per cent rate is clearly to be applied to "all taxes." If the 
Legislature had intended to apply the 8 per cent rate to "all 
taxes in excess of two hundred dollars" after expiration of three 
months, it would probably have said so by employing the phrase 
quoted, which would have been similar to the language used in 
the preceding clause. But it inserted the word "amount". If 
the 8 per cent rate is to be applied to all taxes, provided only 
that they be in excess of $200, then the clause prescribing an 8 
per cent rate is construed as if the word "amount" had been 
omitted entirely. It is an elementary principle of statutory con- 
struction, however, that every word of a statute shall be given 
meaning and effect if possible. In view of the language em- 
ployed in the preceding clause, effect can be given to the word 
"amount" only by connecting it with the phrase "in excess," so 
that the 8 per cent rate is to be applied only to that amount by 
which a tax is in excess of $200. 

A more compelling reason for the above interpretation of the 
statute is the discrimination which would result if the language 
of the statute were construed otherwise. There appears to be 
no sound reason why a person whose tax is $199 should pay 
interest at the rate of 6 per cent, and one whose tax is $201 should 



40 



OPINIONS OF THE ATTORNEY-GENERAL. 



pay interest at the rate of 8 per cent upon the whole sum. To 
hold that all taxpayers shall pay at the rate of 6 per cent on the 
amount of their aggregate taxes up to $200, and at the rate of 
8 per cent on any amount in excess of $200, is a more equitable 
basis of payment. 

For the reasons stated, I am of the opinion that, in the case 
you suggest, interest is chargeable from the due date on $200 at 
6 per cent and on $1 at 8 per cent. 



Banks — Private Banks 



- Possession by Commissioner of 
Banks. 



To the Com- 
missioner of 
Banks. 
1921 
February 7. 



Concerns known as private banks, which are engaged in the business of taking 
deposits of money and making loans therefrom, as described in G. L., c. 169, 
§ 1, are doing a banking business. 

A concern engaged in such business is a "bank," within the definition of G. L. 
c. 167, § 1, and if it has violated the law, the Commissioner of Banks may 
take possession of its property and business, under G. L., c. 167, § 22. 

You have asked me to advise you whether, under G. L., 
c. 167, § 22, you may take possession of the property and business 
of persons engaged in the selling of steamship tickets for trans- 
portation to or from foreign countries, wdiich, in conjunction 
therewith, caiTies on the business of receiving deposits of money 
for safe keeping or for the purpose of transmitting the same, or 
equivalents thereof, to foreign countries, or for some other pur- 
pose, so that this business comes under the description contained 
in G. L., c. 169, § 1. The concern is not bonded or licensed as 
required by said chapter 169. It also transacts business under 
a name or title which contains the word "bank" as descriptive 
of said business, within the prohibition of G. L., c. 167, § 12. 
You also ask generally whether you may take possession of the 
property and business of individuals or corporations known as 
private banks, which engage in the business of receiving deposits 
of money and making loans therefrom, under the provisions of 
G. L., c. 167, § 22. 
, G. L., c. 167, § 22, is as follows: — 



J. WESTON ALLEN, ATTORNEY-GENERAL. 41 

Whenever it shall appear to the commissioner that any bank has vio- 
lated its charter or any lav: of the commonwealth, or is conducting its 
business in an unsafe or unauthorized manner, or that its capital is im- 
paired, or if it shall refuse to submit its books, papers and concerns to the 
inspection of the commissioner or of his duly authorized agents, or if any 
officer of such bank shall refuse to be examined on oath by the commis- 
sioner or his deputies touching its concerns, or if it shall suspend payment 
of its obligations, or if from an examination or from a report provided for 
by law the commissioner shall have reason to conclude that such bank is 
in an unsound or unsafe condition to transact the business for Avhich it 
is organized, or that it is unsafe and inexpedient for it to continue business, 
the commissioner may take possession forthwith of the property and busi- 
ness of such bank and may retain possession thereof until the bank shall 
resume business or until its affairs shall finally be liquidated as herein 
provided. 

Assuming that the persons in question have violated some 
law of the Commonwealth or in some way come within the terms 
of section 22, the question remains whether they are doing a 
banking business. 

The word "bank," as used in G. L., c. 167, is defined in section 
1 as follows : — 

"Bank," a savings bank, co-operative bank, trust company or any 
person, partnership, association or corporation, incorporated or doing 
a hanking business in the commonwealth, subject to the supervision of 
the commissioner of banks. 

The precise question is whether any private bank as above 
described is a "person, partnership, association or corporation, 
incorporated or doing a banking business in the commonwealth." 

Is the taking of deposits of money and making loans there- 
from doing a banking business? 

The banking business has three different elements, — issuing 
negotiable notes, discounting notes and receiving deposits. 
Originally it consisted only of receiving deposits for safe keeping, 
and even now a bank is primarily a place for the deposit of 
money, and the receiving of the money of others is a distinc- 
tive feature of the business of banking. The exercise of any 
one or more of the three functions named constitutes a banking 



42 OPINIONS OF THE ATTORNEY-GENERAL. 

business. Bank for Savings v. The Collector, 3 Wall. 495, 512; 
Oulton V. Saiings Institution, 17 Wall. 109, 118, 119; Warren v. 
SJiook, 91 U. S. 704, 710; Auten v. United States National Bank, 
174 U. S. 125, 141, d seq.; Reed v. Peoyle, 125 III. 592; Western 
Investment Banking Co. v. Murray, 6 Ariz. 215; Dunn v. State, 
13 Ga. Ap. 314; State v. Leland, 91 Minn. 321; Hamilton 
National Bank v. American L. d' T. Co., 66 Neb. 67; Kiggins 
V. Munday, 19 Wash. 233; J/acLarew v. S/o/e, 141 Wis. 577; 
Parker v. Marchant, 1 Younge & C. Ch. 290, 300. In Engel v. 
O'Malley, 219 U. S. 128, 136, the court (Holmes, J.) held in a 
case involving the constitutionality of a State statute regulating 
the receipts of deposits of money, entitled "private banking," 
that the receipt of money by a bank is a branch of the banking 
business. 

Decisions interpreting the meaning of the word "bank," 
as used in a note describing the place where the note is payable, 
have no significance. Way v. Buiterworth, 106 Mass. 75; S. C, 
108 Mass. 509, 513; Commonwealth v. Pratt, 137 Mass. 98, 104; 
Nash V. Brown, 165 Mass. 384. 

It is true that G. L., c. 169, which is applicable to persons en- 
gaged in the selling of steamship or railroad tickets for trans- 
portation to or from foreign countries, who, in conjunction with 
said business, carry on the business of receiving deposits of 
money, is entitled "Deposits with Others than Banks." This 
title is found for the first time in the General Laws. The act 
which is now chapter 169 in its original form was entitled "An 
Act to regulate the taking of deposits by certain banks, associ- 
ations and persons" (St. 1905, c. 428). In my opinion, the 
adoption of the present title in the General Laws did not indicate 
an intention on the part of the Legislature that the business to 
which the chapter applies should be construed in every case to 
be outside the description of the business of a "bank," as defined 
in G. L., c. 167, § 1. It should be noted in that connection that 
the concerns doing such business have generally been known as 
private banks. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 43 



Taxation — Income Tax — Gains and Profits — Sale of 
Lease containing Option to purchase Reversion. 

Since an option to purchase the reversion after a lease for years is a covenant 
which runs with the land and passes as an incident of the leasehold estate, 
a profit realized from the sale of a lease which contains such an option is not 
taxable under G. L., c. 52, § 5, cl. (c), unless a profit realized from the sale 
of the leasehold would be taxable under said provision. 

You state in substance the following case : — To the Com- 

A has a written lease of certain land and a building thereon Corporations 

and Taxation. 

for a term of years. The lease contains an option to purchase pg^r^ly 14 
the reversion. A sells the lease and option to B, and realizes 
a net gain of $50,000. There is no understanding as to the 
proportionate amount paid for the lease and the option, re- 
spectively. G. L., c. 62, § 5, cl. (c), provides, in part, as fol- 
lows : — 

The excess of the gains over the losses received by the taxpayer from 
purchases or sales of intangible personal property, . . . shall be taxed 
at the rate of three per cent per annum; . . . 

You state that your department has construed this clause 
as including gains realized from the sale of options upon real 
estate, but not gains from the sale of leaseholds. You ask 
whether any tax is due under said clause (c) in respect of this 
option, and if so, how said tax is to be determined. 

A naked option to purchase the fee simple confers no interest 
in the land until it is exercised. Thacher v. Weston, 197 Mass. 
143. One who is a stranger to it cannot enforce it. Boyden v. 
Hill, 198 Mass. 477, 487. An assignee thereof stands in the 
shoes of the assignor. In other words, the obligation of such a 
covenant rests upon privity of contract. If, under its terms, 
such an option can be exercised at a period too remote, it is bad 
both under the rule against perpetuities and as a forbidden re- 
straint upon alienation. Winsor v. Mills, 157 Mass. 362; East- 
man Marble Co. v. Vermont Marble Co., 236 Mass. 138, 153. 

An option to purchase the reversion, contained in a lease, is 
a covenant which runs with the land. Peters v. Stone, 193 Mass. 



44 OPINIONS OF THE ATTORNEY-GENERAL. 

179, 186; Ankeny v. Richardson, 187 Fed. 550; Prout v. Rohy, 
15 Wall. 471; Hagar v. Buck, 44 Vt. 285; Hollander v. Central 
Metal Co., 109 Md. 131. A covenant which runs with the land 
passes with the estate as an incident thereof, and may be en- 
forced by the assignee, by reason of privity of estate, even though 
the assignee is not a party to the covenant and there is no privity 
of contract between him and the covenantor. Donaldson v. 
Strong, 195 Mass. 429; Patten v. Deshon, 1 Gray, 325, 329. It 
therefore partakes of the estate to which it is incident. Thus, 
the covenant to pay rent, which likewise runs with the land, is 
an incorporeal interest in land, although in form a contract. 
Winnisimmet Trust, Inc. v. Lihhy, 232 Mass. 491, 492. In this 
respect the law looks through the outward form to the substance. 
The distinction between a naked option and an option contained 
in a lease is emphasized by another line of authority. As above 
noted, a naked option to purchase the fee is bad if it may be 
exercised at a period too remote. But the weight of American 
authority is to the effect that an option to purchase the rever- 
sion, contained in a lease, attached to the leasehold and exer- 
cisable only during the term, is valid even though the term 
exceed the period allowed by the rule against perpetuities. Hol- 
lander v. Central Metal Co., 109 Md. 131; Prout v. Roby, 15 
Wall. 471; Hagar v. Buck, 44 Vt. 285, 27 Yale L. J. 885; contra, 
Gray, Perp. 3d ed., § 2306. The rule in England is the other 
way. Woodall v. Clifton, 1905, 2 Ch. 257; Worthing Cory. v. 
Heather, 1906, 2 Ch. 532. But our court has intimated that it 
would adhere to the American view. In Eastman Marble Co. v. 
Vermont Marble Co., 236 Mass. 138, in holding that a naked 
option to purchase, exercisable at a period too remote, was a 
forbidden restraint on alienation, Chief Justice Rugg said: — 

The question presented on this record has nothing to do with options 
for purchase or renewal contained in leases. See in this connection 
Mann, Grossman & Paulin, Ltd. v. Registrar of Land Registry, (1918) 
1 Ch. 202, and cases collected in 27 Yale Law J. 885. 

Under these circumstances, I am of opinion that an option 
to purchase the reversion, contained in a lease, is an incident 



J. WESTON ALLEN, ATTORNEY-GENERAL. 45 

of the lessee's estate, and must be classified with it in respect 
of any tax to be levied under G. L., c. 62, § 5, cl. (c). If a gain 
from the sale of that estate is not taxable, a gain from the option 
which passes as an incident of that estate is not taxable. 



Insurance — Foreign Mutual Fire Insurance Company 
— Admission — Requirement of Assessable Policy — 
Fixing of Contingent Mutual Liability. 

A foreign mutual fire insurance company cannot be admitted to transact business 
in this Commonwealth unless by its by-laws and policies it fixes the con- 
tingent mutual liability of its members. 

You request my opinion as to whether or not a foreign mu- TotheCom- 

t- '^ ^ c missioner of 

tual fire insurance company which issues solely a non-assessable ^"^"g^g^''*'" 

policy can be admitted to transact the business of fire insurance ^^^^;^^ ^*- 

in this Commonwealth, provided it complies with the conditions 

set forth in G. L., c. 175, § 151; in other words, assuming that 

a foreign mutual fire insurance company has, under chapter 

151, paragraph second, clause (2) (a), "net cash assets equal to 

the capital required of like companies on the stock plan," and 

has complied with all the other provisions set forth in section 

151, can such a company be admitted to transact business in 

this Commonwealth of issuing a non-assessable policy, that is, 

a policy without a contingent liability. 

In answering your question I would first call your attention 
to G. L., c. 175, § 150, which provides: — 

Foreign companies, upon complying with the conditions herein set 
forth applicable to such companies, may be admitted to transact in the 
commonwealth . . . any kinds of business authorized by this chapter, 
subject to all general laios now or hereafter in force relative to insurance 
companies, and subject to all laws applicable to the transaction of such 
business by foreign companies and their agents ; . . • 

You .will note that foreign companies may be admitted to 
transact business in this Commonwealth, but such transaction 
of business is subject to all general laws now or hereafter in 
force relative to insurance companies. 



46 OPINIONS OF THE ATTORNEY-GENERAL. 

Turning to the provisions of the General Laws now in force 
relative to insurance companies, we find that by section 81 of 
chapter 1 75 it is provided that — 

Mutual fire companies . . . shall charge and collect upon their poli- 
cies a full mutual premium in cash or notes absolutely payable. Any 
such company may in its by-laws and policies fix the contingent mutual 
liability of its members for the payment of losses and expenses not pro- 
vided for by its cash funds, but such contingent liability of a member shall 
not be less than an amount equal to and in addition to the cash premium 
wi-itten in his policy. The total amount of the liability of the policy 
holder shall be plainly and legibly stated upon the filing-back of each 
policy. Whenever any reduction is made in the contingent liability of 
members, such reduction shall apply proportionally to all policies in force. 

Accordingly, it becomes necessary to decide whether this sec- 
tion makes it mandatory upon a mutual fire insurance company 
to have a contingent liability. To determine this, it is necessary 
to read section 81 together with section 83 of chapter 175. Sec- 
tion 83 provides, in part, that — 

If a mutual fire company is not possessed of assets above its unearned 
premiums sufficient for the payment of inciu-red losses and expenses, it 
shall make an assessment upon its members liable to assessment there- 
for, in proportion to their several liabilities, for the amount needed to 
pay such losses and expenses. 

If by reason of any depreciation or loss of its funds or otherwise the 
assets of such a company, after providing for its other debts, are less 
than the unearned premiums upon its policies, it shall make good the 
deficiency by assessment in the mode above provided ; . . . 

Each policy holder shall be liable to pay his proportional part of any 
assessments laid by the company in accordance with law and his con- 
tract, on account of losses and expenses incurred while a member, if he 
is notified of such assessment within one year after the expiration or 
cancellation of his policy; . . . 

In Sanford v. Hampden Paint & Chemical Co., 179 Mass. 10, 
a case involving an assessment levied by a mutual fire insurance 
company under the provisions of St. 1897, c. 197, the court used 
this language : — 



J. WESTON ALLEN, ATTORNEY-GENERAL. 47 

As a policy holder, the defendant became a member of the insurance 
company, and, as such, liable to an assessment for the payment of all 
just claims accruing against it during the continuance of the policies, 
or either of them; and the liability continued, notwithstanding the ex- 
piration of the poHcies. This liability was imposed by the statute upon 
the policj' holder for the benefit of the other policy holders, and other 
creditors of the company. It was a part of the fund to which each of the 
other policy holders was entitled to resort for the payment of his own 
loss as well as for help in paying the loss of another. This obligation to 
contribute, if necessary, to pay the loss sustained by any other member, 
although created by statute, was of a contractual nature, and was a part 
of the contract between each stockholder and the company. 

The wording of the provision in the statute applicable at the 
time this decision was handed down was as follows : — 

Anjr such company [mutual fire insurance company] may in its by- 
laws and policies fix the contingent mutual liability of its members for 
the payment of losses and expenses not provided for by its cash funds: 
'provided, that such contingent liabilit}^ of a member shall not be less than 
a sum equal to and in addition to the cash premium written in his policy. 
The total amount of the liability of the policy holder shall be plainly 
and legibly stated upon the back of each policy. Whenever any reduc- 
tion is made in the contingent liability of members such reduction shall 
apply proportionally to all policies in force. 

This is practically the exact language found in the present 
provisions in G. L., c. 175, § 81. 

It is my opinion that a contingent liability is imposed by 
this language upon the policy holder of a mutual fire insurance 
company, and that a domestic mutual fire insurance company 
is required to have an assessable policy. This being so, and 
being a requirement of the general laws now in force relative 
to insurance companies, a foreign mutual fire insurance com- 
pany cannot be admitted to transact business in this Common- 
wealth unless by its by-laws and policies it fixes the contingent 
mutual liability' of its members. 



48 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Com- 
missioner of 
Corporations 
and Taxation. 

1921 
February 15. 



Taxation — Return — Penalty for Failure to file — 
Power of Commissioner. 

The Commissioner of Corporations and Taxation has discretion, under G. L., 
c. 62, § 55, to abate the additional tax imposed for failure to file a return, 
which discretion is not exhausted by one exercise. 

You inquire, in substance, whether the Commissioner may re- 
consider and revise a refusal by him to abate penalties accruing 
under G. L., c. 62, § 55, on account of failure to file an income 
tax return, assuming said penalties have not been paid. 

G. L., c. 62, § 55, provides: — 

If anj^ person required to file a return under this chapter fails to file 
the return within the time prescribed therein, the sum of five dollars 
for every day during which such person is in default shall be added to, 
and become part of the tax, as an additional tax; but the commissioner 
may, in his discretion, abate any such additional tax in whole or in part. 



The additional tax imposed by this section as a penalty dif- 
fers from the tax to which it is added. The original tax is meas- 
ured by the amount of income taxable; the additional tax is 
measured by the extent of the default, and is in no way 
dependent upon the amount of income taxable. In my opinion, 
the abatement of the latter tax is governed by section 55, rather 
than by sections 43 to 48, which prescribe the mode of abating 
the original tax. I am further of opinion that the discretion 
conferred by section 55 is not exhausted by one exercise. The 
Commissioner has power to reconsider and revise a previous 
refusal to abate the additional tax, provided that in the exercise 
of a sound discretion he considers that an abatement is war- 
ranted. You do not ask, and I do not decide, whether such an 
abatement could be made after the additional tax has been paid. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 49 

Obligations Redeemable in Numerical Order — Co-op- 
erative Banks — Loan and Home Purchasing Con- 
tracts. 

The business of issuing contracts in series, by the terms of which contract holders 
are to make payments in instalments and have the privilege of securing loans 
in the numerical order of their contracts, is in violation of G. L., c. 107, § 7. 

A foreign organization doing such business in this Commonwealth may be en- 
joined, under G. L., c. 107, § 8, from further continuing its business in the 
Commonwealth. 

The doing of such business is not doing business in the manner of a co-operative 
bank, within the prohibition of G. L., c. 170, § 48. 

You have called my attention to the operations of an organ- TotheCom- 

11 1 mi /A ' r p K • ' missioner of 

ization called Ihe Co-operative League or America operating Banks. 
under an agreement and deed of trust filed in Allegheny County, Fe bruary is. 
Pennsylvania, having its home office in Pittsburg, Pa., and 
having a branch office, where it does business, in Springfield, 
Mass. 

The purpose of the organization is stated to be to accumulate 
small savings in a trust fund, to be loaned only to those who 
have created it. 

The business of the organization is done by issuing what are 
called "3 per cent loan and home purchasing contracts," each 
of which is one of a series, providing for the payment of monthly 
instalments; the creation of a trust fund, into which are paid 
all instalments less certain deductions, payments of loans and 
interest, forfeitures, payments on certificates, etc.; the making 
of loans to holders of contracts of the same series from the trust 
fund, in the order of the date of the respective contracts, or the 
sale of the loan privilege for their benefit; and the division of a 
portion of the profits among holders of fully paid contracts and 
participating certificates. 

In its essence the business is in accordance with a plan by 
which contract holders are to pay the sums stated in their con- 
tracts, on instalments, and have the privilege of securing loans 
in the numerical order of their contracts. 

You ask my opinion regarding the legality of the operations 
of the trust in this State. 



50 OPINIONS OF THE ATTORNEY-GENERAL. 

The laws regulating the conduct of the business of savings 
banks appear to be inapplicable to the business done by the 
trust. In determining whether the business done b}^ the trust 
in Massachusetts is in violation of law, two statutes are material. 

1. G. L., c. 170, § 48, prohibiting the doing of business in 
the manner of a co-operative bank, except by corporations in- 
corporated in the Commonwealth for that purpose. Section 48 
is as follows : — 

No person, and no association or corporation, except foreign associa- 
tions and corporations duly licensed by the commissioner prior to April 
fourteenth, eighteen hundred and ninety-six, to transact business in 
this commonwealth, shall transact the business of accumulating the 
savings of its members and loaning to them such accumulations in the 
manner of a co-operative bank, unless incorporated in this common- 
wealth for such purpose. Whoever violates any provision of this sec- 
tion shall be punished by a fine of not more than one thousand dollars, 
and the supreme judicial or superior court shall have jurisdiction in 
equity to enforce this section. 

2. G. L., c. 107, §§ 7 and 8, prohibiting the sale of obligations 
which by their terms are to be redeemed in numerical order or 
in any arbitrary order of precedence. Sections 7 and 8 are as 
follows : — 

Section 7. No person shall issue, negotiate or sell any bonds, cer- 
tificates or obligations of any kind, which are by the terms thereof to be 
redeemed in numerical order or in any arbitrary order of precedence 
without reference to the amount previously paid thereon by the holder 
thereof, whether they are sold on the instalment plan or otherwise, nor 
shall any person redeem any bonds, certificates or obUgations in such 
order, whether they are sold on the instalment plan or other\\ise. 

Section 8. Violations of the preceding section shall be punished by 
a fine of not more than two thousand dollars or by imprisonment for not 
more than one year. Any such violation, if by a domestic corporation, 
shall operate as a forfeiture of its franchise and, if by a foreign corpora- 
tion, association or organization, as a discontinuance of its right to do 
business in the commonwealth; and the supreme judicial or superior 
court, upon the application of the commissioner of corporations and tax- 
ation, may enjoin such foreign corporation, association or organization 
from further continuing its business in the commonwealth. The court 
may appoint a receiver to take possession of the property of such corpora- 



J. T^^ESTON ALLEN, ATTORNEY-GENERAL. 51 

tion, association or organization, and to close up the business, subject 
to the order of the court. 

The decision of the Supreme Judicial Court in Attorney-General 
V. Pitcher, 183 Mass. 513, clearly indicates that the business done 
in this State by The Co-operative League of America is not the 
business which is made illegal by G. L., c. 170, § 48. In that 
case the defendants were doing business under a declaration of 
trust, under the name of the "New England Home Buyers' As- 
sociation." Contracts were issued which were quite similar in 
form to those used in the present instance. Regarding this 
business the court says as follows (p. 516): — 

The Attornej'-General contends that this business violates R. L., 
c. 114, § 1, in relation to co-operative banks, which provides that no per- 
son, association or corporation except certain licensed ones "shall trans- 
act the business of accumulating the savings of its members and loaning 
to them such accumulations in the manner of a co-operative bank, un- 
less incorporated in this Commonwealth for such purpose." This is a 
penal statute which makes an offender punishable by a fine of not more 
than $1,000. As a penal statute it must be construed strictly, and we 
are of opinion that the defendants are not within it. The purchasers of 
these contracts are not members of the association, and their savings 
are not savings of members, but of holders of individual contracts from 
the association. They have no voice in the management of the affairs 
of the association. No money of members of the association is lent to 
any of its members ; the savings of these contractors are not accumulated 
and lent to them in the manner of a co-operative bank, but the course 
of dealing is very different from that of any bank. It may well be said that 
all the reasons for the enactment of this statute apply with great force 
to an association transacting a business like that of these defendants. 
But the defendants are not within the terms of the statute, and they 
cannot be punished nor enjoined under it. 

See also III Op. Atty.-Gen. 372. 

In the same decision a majority of the court announced their 
opinion that the business conducted was in violation of R. L., 
c. 73, §§ 7 and 8, now G. L., c. 107, §§ 7 and 8, forbidding the 
sale of obligations to be redeemed in numerical order or in any 
arbitrary order of precedence. In that case the court held that 
the Attorney-General could not maintain a suit in equity to 



52 OPINIONS OF THE ATTORNEY-GENERAL. 

enjoin them from violating the statute, and intimated that 
the only remedies were those provided by the statute. 

I am of opinion that the decision in Attorney-General v. Pitcher, 
supra, is a direct authority against the legality of the method 
of issuing contracts by The Co-operative League of America, and 
that the persons who are carrying on that business in this Com- 
monwealth are liable to the penalties provided in section 8. See 
also Attorney-General v. Preferred Mercantile Co., 187 IMass. 516. 

I therefore advise you that the issuing of the contracts appears 
to be in violation of G. L., c. 107, §§ 7 and 8, and that under 
section 8 persons who are conducting the business in Springfield 
are liable to fine or imprisonment, and, upon the application of 
the Commissioner of Corporations and Taxation, the organ- 
ization may be enjoined from further continuing its business in 
the Commonwealth. 



Constitutional Law — Bridge over Highway — Payment 
or Damages by Private Person or Municipality. 

In authorizing the construction of a bridge over a highway in order to connect 
lands on opposite sides of it, the legislature has no power to provide that the 
damages thereby caused shall be paid by a private person, since this does not 
adequately secure the payment of compensation to those who may be en- 
titled thereto under the Constitution. 

A city cannot be required to pay compensation for the erection of a bridge over a 
highway for the benefit of private persons, since this involves expenditure 
of public money for a private purpose. 

Governor. You havc orally requested my opinion as to whether House 

February 16. Bill No. 554, entitled "An Act authorizing George L. Brownell 

to maintain a bridge over Market Street in the city of Worcester," 

would be constitutional if enacted. 
Section 3 of said bill provides : — 

Any person whose property is damaged by reason of the construction 
or maintenance of the bridge as aforesaid may have his damages deter- 
mined by a jury, upon petition filed in the superior court within one 
year after the approval of the permit by the mayor as above provided, 
and the damages when so determined shall be paid by the said George 
L. Brownell. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 53 

1. In my opinion, the provision that "the damages when so 
determined shall be paid by the said George L. Brownell" renders 
the bill unconstitutional as to persons whose property may be 
damaged, since it does not adequately secure to them the com- 
pensation required by the Constitution. The precise point is 
covered in Opinion of the Justices, 208 Mass. 625, 630: — 

It is elementary doctrine that such an amendment as is proposed, pro- 
viding that the damages to persons injured in their property shall be paid 
by the grantees of the permit, who are private parties, would not secure 
compensation to such persons in the manner required by the Constitu- 
tion and as to them, in reference to damages to which they might be en- 
titled under the Constitution, would render the statute invalid. 

2. The city of Worcester could not constitutionally incur 
liability for damages in connection with this bridge if the bridge 
is erected for a private rather than a public purpose. Opinion 
of the Justices, 208 Mass. 603, 606; Lowell v. Boston, 111 Mass. 
454. The bill, on its face, discloses no public purpose to be 
subserved thereby. On the contrary, the description of the 
premises to be connected and the provision that the petitioner 
shall pay the damages indicate that the purpose is private. But 
as this involves a question of fact, I leave the point open. 

3. It appears from the petition accompanying said bill that 
the land opposite to the Brownell premises, upon the other side 
of Market Street, is "owned and occupied by Worcester Tire 
Fabric Co." It may be inferred, though it nowhere affirmatively 
appears, that said tire company assents to the erection of said 
bridge. This is an important question of fact which bears upon 
the propriety of the bill. See Opinion of the Justices, 208 Mass. 
603; ibid., 625. 



54 OPINIONS OF THE ATTORNEY-GENERAL. 



Constitutional Law — Police Power — Delegation of 
Legislative Power — Smoke and Cinders. 

An act authorizing a city to make ordinances for the control or prevention of 
harmful smoke and cinders is not unconstitutional either as a forbidden 
delegation of legislative power or as beyond the limits of the police power. 

Governor. You havc orallv requested my opinion as to the constitu- 

February 18. tionalitv of Housc Bill No. 290, entitled " An Act authorizing 
the city of Worcester to make ordinances providing for the con- 
trol or prevention of smoke and cinders." The bill is in two 
sections. Section 1 provides : — 

Section one of chapter one hundred and twenty-three of the acts of 
nineteen hundred and fourteen is hereby amended by inserting after 
the word "smoke", in the third and fifth lines, the words: — or cinders, 
— so as to read as follows : — Section 1 . The city of Worcester, by vote 
of its city council, may make ordinances for the control or prevention of 
the emission of smoke or cinders of such character as shall be adjudged 
harmful, and for the control or prevention of agencies causing such smoke 
or cinders, and for the enforcement thereof may appoint officers or 
agents and appropriate money for salaries and for expenses: provided, 
that no such ordinance shall apply to railroads or railroad operations 
or employees. 

Section 2 provides that the act shall take effect upon its pas- 
sage. 

The present bill amends an act which has been in force for 
over six years, so as to include cinders within the terms thereof. 
Cinders are frequently, though perhaps not invariably, an ac- 
companiment of smoke. It may be that they are so closely 
connected with it that an authority to control or prevent the 
emission of smoke would, without more, include the power to 
control or prevent the emission of cinders along with it. But 
even assuming that this amendment extends the act to any 
sensible extent, I find no constitutional objection to it. The 
authority to delegate such power to a municipality seems to be 
amply established. Opinion of the Justices, 234 Mass. 597. The 
constitutionality of reasonable smoke legislation was upheld in 
Northwestern Laundry v. Des Moines, 239 U. S. 486. In my 
opinion, the present bill is within the power of the Legislature. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 55 



State Departments — Execution of Leases — Governor 

AND Council. 

A State department has no power to execute a lease unless authorized so to do 

by the Legislature. 
An appropriation of money to cover the expense of a lease does not ordinarily 

confer incidental authority to execute it upon the department which is to 

occupy the leased premises. 
Where money has been appropriated to meet the cost of leasing premises for a 

department, such lease has, by custom, been executed by the Governor and 

Council on behalf of such department. 

You have requested my opinion as to whether or not, in order to the com- 
that the Department of PubUc Health mav execute a lease of Public Health. 

^ . . • 1921 

property for laboratory purposes, it will be necessary for the Fe bruary 24. 
Legislature not only to make an appropriation of money for the 
purpose of leasing such property, but also to pass legislation 
expressly authorizing the department to execute such a lease. 

In reply I would state that a State department cannot itself 
execute a lease unless the Legislature has expressly authorized 
it to do so. This authority is necessary in addition to the ap- 
propriation of money to cover the cost of such a lease. 

It has been the custom, however, where money has been ap- 
propriated for such a purpose, to have a lease executed by the 
Governor and Council. In this connection I would call your 
attention to a recommendation in my annual report for the year 
1920, as follows: — 

There is no general statutory authority conferred upon any official 
to execute leases in behalf of the Commonwealth. Departments, com- 
missions and boards are frequently required to occupy quarters outside 
the State House, and in some instances in cities and towns in different 
parts of the State. The question how leases in such cases should be exe- 
cuted cannot be answered authoritatively. I recommend the passage 
of an act authorizing the execution of such leases by heads of depart- 
ments, with the approval of the Governor and Council. 



56 



OPINIONS OF THE ATTORNEY-GENERAL. 



Public Schools 



- Election of Superintendent of Schools 
City Charter of Peabody. 



The provision of the city charter of Peabody requiring that the school committee 
shall annually elect a superintendent of schools has been modified by G. L., 
c. 43, § 32. Accordingly, since in Peabody the superintendent has already 
served for three consecutive years, the school committee may not now elect 
a superintendent annually. 



You ask for my opinion as to whether the city charter of Pea- 



To the Com- 
missioner of 

^im°^' body, which provides that the school committee shall annually 
elect a superintendent of schools, has been modified by the pro- 
visions of G. L., c. 43, § 32. Said section is, in part, as follows: — 

The school committee shall elect a superintendent of schools annu- 
ally, except as provided in section. forty-one of chapter seventy-one, . . . 



G. L., c. 71, § 41, is, in part, as follows: — 

Every school committee, except in Boston, in electing a teacher or 
superintendent, who has served in its public schools for the three pre- 
vious consecutive school years, other than a union or district superin- 
tendent, shall employ him to serve at its discretion; . . . 



Section 32, above cited, is, but for the words "except as pro- 
vided in section forty-one of chapter seventy-one," almost 
identical with Gen. St. 1915, c. 267, § 32. This act was to sim- 
plify the revision of city charters, and permitted such munici- 
palities to accept without further legislative enactment one of 
four plans therein mentioned. 

Section 41, above cited, is in substance St. 1914, c. 714, § 1. 
It was under the provisions of the 1914 statute that Peabody 
was operating before the acceptance of the city charter in 1916. 

In 1918 the General Court enacted chapter 257, making cer- 
tain substantive corrections in existing laws, and in section 157 
of said chapter amended Gen. St. 1915, c. 267, § 32. This was 
re-enacted as G. L., c. 43, § 32. But the 1918 statute did not 
become operative, by reason of certain legislative acts, until it 
appeared in the General Laws. 

Inasmuch as the city charter provision of Peabody was at the 



J. WESTON ALLEN, ATTORNEY-GENERAL. 57 

time of its enactment in entire harmony with the General Acts 
of 1915 relative to city charters, there is a strong legislative in- 
tent manifested to have all cities conform to the same regulation 
relative to the election of superintendents, and inasmuch as by 
subsequent legislation it became the general policy throughout 
the State to employ superintendents to serve at their discretion 
after three years of consecutive service, it is my opinion that 
such general legislation affects the provisions in city charters 
which require superintendents to be elected annually. Hence, 
if in Peabody the superintendent has already served for three 
consecutive years, the school committee may not now elect a 
superintendent annually, as required by the city charter. 



Transient Vendors — Conduct of Business in Two or 
More Cities at the Same Time. 

An attempt by a transient vendor licensed under G. L., c. 101, to conduct business 
in two or more cities of the Commonwealth at the same time constitutes a 
violation of said statute. 

You ask if a transient vendor licensed under G. L., c. 101, JfVtenJ^'/,^*'''" 
may lawfully conduct a transient business in two or more cities February 28. 
of the Commonwealth at the same time. 

Section 3 of said chapter provides : — 

It [the license] shall not authorize more than one person to sell goods, 
wares or merchandise as a transient vendor either by agent or clerk or 
in any other way than in his own proper person, but a licensee may have 
the assistance of one or more persons in conducting his business who may 
aid him but not act for or without him. 

Since no person can act for the licensee "without him," and 
as the licensee cannot be in but one place at one time, it is my 
opinion that if an attempt is made to conduct a business in two 
or more places at the same time it constitutes a clear violation 
of the statute. 



58 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the House 
Committee on 
Mercantile 
Aflairs. 
1921 
February 28. 



Constitutional Law — Federal Constitution — Contract 
Clause — Repeal of Charter of a Religious Cor- 
poration GRANTED WITHOUT RESERVATION OF THE RiGHT 

TO Appeal. 

A charter granted to a religious corporation is a contract, within the meaning 
of U. S. Const., art. I, § 10, which cannot be repealed by the Legislature 
without the consent of the corporation, where no power so to do was reserved. 

Where a corporate charter was granted to a religious corporation without any 
reservation of power to alter, amend or repeal it, acceptance by the cor- 
poration of an amendment to said charter, which amendment was made 
after the Legislature has reserved power to alter, amend or repeal corporate 
charters, does not subject the original charter to such reserved power where 
the amendment was not granted upon that condition. 

You have transmitted to me a copy of Senate Bill No. 190, 
entitled "An Act to repeal the charter and all corporate powers 
granted to the Second Society of Universalists in the Town of 
Boston." This act is in three sections, which provide as fol- 
lows : — 



Section 1. The charter and all corporate powers heretofore granted 
to the Second Society of Universalists in the Town of Boston are 
hereby repealed. 

Section 2. The governor of the commonwealth is hereby author- 
ized by and with the consent of the council, to appoint a receiver to take 
charge of all the property and assets of the corporation, and to admin- 
ister the same. 

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



You state that the petition for this act is brought at the re- 
quest of the General Universalist Convention of the United 
States and by the Massachusetts State Convention, which is 
the General Universalist Society in charge of churches through- 
out Massachusetts. The proponents ask that this bill be passed 
upon the ground that the society is not using its property sub- 
stantially for the purposes for which it was acquired, and that 
the society has practically ceased to function. In this connec- 
tion you state that the church of the society, situated at the 
corner of Columbus Avenue and Clarendon Street, Boston, 
where worship was conducted from 1872 until 1914, was de- 



J. WESTON ALLEN, ATTORNEY-GENERAL. 59 

stroyed by fire in the latter year; that, owing to litigation, the 
insurance thereon was not received until 1918; that since the 
destruction of the church, services have been held in the Fen- 
way Theatre on Sunday mornings throughout most of the year, 
but there is a dispute as to whether there have been further 
church activities. The net value of the church property is from 
$600,000 to $700,000, and the income is from $10,000 to $15,000 
a year. The act is opposed by the entire membership of the 
society, who allege that they are endeavoring to carry on their 
church duties to the best of their ability under the circumstances, 
and who urge that the act would be unconstitutional. 

In connection with this bill you ask the following questions : — 

First. — Whether the Legislature can constitutionally pass this act 
and revoke the charter of the society. 

Second. — Whether it is in the province of the Legislature to pass an 
act authorizing the Governor and Council to appoint a receiver to take 
charge of the property and assets of the corporation or whether this is 
a judicial function. 

Third. — Whether, if this act were passed, the property could be ad- 
ministered for general Uni\-ersalist Church purposes or would revert to 
the members of the corporation. 

Fourth. — Whether the Attorney-General would have authority in 
this case to intervene if satisfied that the society was misusing its funds. 

The society was incorporated by St. 1816, c. 96, which was 
approved by the Governor on Dec. 13, 1816. This charter con- 
stituted a contract between the State and the incorporators, 
which is within U. S. Const., art. I, § 10, and which cannot be 
altered, amended or repealed by the Commonwealth unless a 
power so to do was reserved at the time it was granted. Derby 
V. Blake, (1799) 226 Mass. 618; King v. Dedhavi Bank, 15 Mass. 
447; Boston, etc., R.R. Corp. v. Salem, etc., R.R. Corp., 2 Gray, 
1; Dartmouth College v. Woodward, 4 Wheat. 518. I find no 
such reservation of power in connection with this charter. The 
charter itself contains none. The first statute which reserved 
such a power generally in respect to corporate charters was St. 
1830, c. 81, which was approved March 11, 1831, and which ex- 
pressly applied only to acts of incorporation "which shall be 



60 OPINIONS OF THE ATTORNEY-GENERAL. 

passed after the passage of this act." This Hmitation has been 
preserved in subsequent codifications. R. S., c. 44, § 23; G. S., 
c. 68, § 41; P. S., c. 105, §§ 2, 3; R. L., c. 109, § 3; St. 1903, 
c. 437, § 2; G. L., c. 155, § 3. Although Mass. Const. Amend. 
LIX, which was ratified Nov. 5, 1918, does not contain this 
express Hmitation as to time, it cannot be construed to confer 
any power to alter, amend or repeal an existing corporate charter 
which was not already subject to such power. It follows that 
since the charter of this society contained no express reserva- 
tion of any power to alter, amend or repeal it, and was granted 
prior to any general reservation of such power by the Legislature, 
section 1 of the present bill is unconstitutional unless the power 
to repeal has since attached. 

It is suggested that the charter of the society is now subject 
to repeal because it has been amended since St. 1830, c. 81, went 
into effect. St. 1896, c. 99, provided, in substance, that the title 
to the land conveyed to the society by a certain deed should not 
be invalid by reason of anything contained in the second section 
of the charter. This act simply waived, in respect to particular 
land already conveyed, the limitation upon the amount of prop- 
• erty which the society was authorized to hold. Hubbard v. 

Worcester Art Museum, 194 Mass. 280, 289. It may be doubted 
whether it rises to the dignity of a charter amendment. Spec. 
St. 1918, c. 168, authorized the society to receive and hold prop- 
erty to an amount not exceeding $1,500,000, exclusive of any 
meeting house and the lands connected therewith. As this au- 
thority is general and prospective, and not merely a waiver in 
respect to a past conveyance, this act may fairly be considered 
an amendment to the charter of the society. At the time when 
this amendment was accepted by the society, the statute which 
reserved power to alter, amend and repeal corporate charters 
(St. 1903, c. 437, § 2) provided as follows: — 

Corporations organized under general laws shall be subject to the 
provisions of all laws hereafter enacted which may affect or alter their 
corporate rights or duties or which may dissolve them; but they shall, 
notwithstanding their dissolution, be subject to the provisions of sec- 
tions fifty-two and fiftj'-three. Such amendment, alteration or dissolu- 



J. WESTON ALLEN, ATTORNEY-GENERAL. 61 

tion shall not take away or impair any remedy which may exist by law, 
consistently with said sections, against such corporations, their stock- 
holders or officers for a liability previously incurred. The charters of all 
corporations which are subject to the provisions of this act and which 
have been incorporated by special law since the eleventh day of March 
in the year eighteen hundred and thirty-one and of all such corporations 
as may be hereafter incorporated by special law shall be subject to amend- 
ment, alteration or repeal by the general court. Corporations of the 
kind which are subject to the provisions of this act, and which were 
incorporated by special law before such date, may, by amendment, to 
their certificate of organization, adopted as provided in section forty, and 
filed as provided in section forty-one, reorganize under this act, and there- 
upon and thereafter, they shall be governed in all respects by its provisions. 

I assume, without deciding, that the provisions of this section 
would govern the amendment made by Spec. St. 1918, c. 168, 
even though not expressl}^ incorporated therein. Commissioners 
on Inland Fisheries v. Holyoke Water Power Co., 104 Mass. 446, 
451; affirmed Holyoke Water Power Co. v. Lyman, 15 Wall. 500, 
522; Greenwood v. Union Freight Ry. Co., 105 U. S. 13. But 
this provision is silent as to the effect of an amendment, ac- 
cepted after power to repeal was reserved, upon a charter pre- 
viously irrepealable. It nowhere provides that acceptance of the 
amendment shall subject the entire charter to the reserved power 
of the Legislature. No such intention can fairly be implied in 
view of the express provision for a voluntary reorganization 
which shall subject corporations organized prior to March 11, 
1831, to the provisions of St. 1903, c. 437. No express decision 
in this State that such is the effect of accepting a charter amend- 
ment has been cited to me or has been found by me. I do not 
find that any such rule is established in other States. I am 
therefore of opinion that the irrepealable character of this 
charter has not been lost, and that therefore section 1 of Senate 
Bill No. 190 would, if enacted, be unconstitutional and void. 

In view of this conclusion it becomes unnecessary to answer 
your other inquiries. 



62 OPINIONS OF THE ATTORNEY-GENERAL. 



Civil Service — Conviction for Violation of Automobile 

Laws. 

Conviction for violation of the automobile laws, as affecting appointment, em- 
ployment or retention in the service of the Commonwealth, is within the 
meaning of the words "conviction of crime against the laws of the Common- 
wealth," as used in G. L., c. 31, § 17. 



m?ssioner°S' You havc inquired whether "a conviction for such violation 

Civil Sen 

1921 
March 1. 



T92i'"^''"^''' of the automobile laws as overspeeding, having no mirror on 



car, tail light being out, etc.," is within G. L., c. 31, § 17, which 
provides : — 

No person habitually using intoxicating liquors to excess shall be 
appointed, employed or retained in any position to which this chapter 
applies, nor shall any person be appointed or employed in any such 
position within one year after his conviction of any crime against the 
laws of the commonwealth. 

The laws relative to the operation of motor vehicles are now 
codified as chapter 90 of the General Laws, and specifically cover 
the offences as to which you inquire. 

I wish to be understood as answering your inquiry only as 
to the offences specified, namely, overspeeding, having no mirror 
on car, and tail light being out, as I do not know what you in- 
tended to cover by the word "etc." 

I see no escape from the conclusion that a conviction for any 
one of these offences is within the meaning of the words "con- 
viction of any crime against the laws of the Commonwealth," 
as used in said section 17. If this results in hardship, the remedy 
lies with the Legislature, which, by G. L., c. 31, § 51, has pro- 
vided a penalty for violation of the ci\'il service law. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 63 



Fuel Administrator — Power to require Information from 

Coal Dealers. 

The Fuel Administrator, by virtue of his appointment under Gen. St. 1917, c. 342, 
and St. 1920, c. 610, has the power to summon witnesses and compel testi- 
mony for the purpose of ascertaining facts in regard to necessaries of life, 
including coal. 

You were appointed Fuel Administrator by the Governor and Idm^niftrator. 
Council under the provisions of Gen. St. 1917, c. 342, and St. March i. 
1920, c. 610. You ask me to advise you whether, under said 
two acts, you have the power to require coal dealers to give you 
such information as you may need, or whether you must depend 
entirely upon their voluntary co-operation. 

Gen. St. 1917, c. 342, known as the "Commonwealth Defence 
Act of 1917," contains two sections material to your inquiry. 
They are as follows : — 

Section 12. Whenever the governor shall determine that circum- 
stances warrant the exercise by him of all or any of the powers conferred 
on him by this act, he may, with the approval of the council, by WTitings 
signed by him, confer upon such officials of the commonwealth or any 
political division thereof, or such officer of the military or naval forces 
of the commonwealth, or such other person or persons as he may select, 
full power and authority to do in his name whatever may be necessary 
to carry the said powers into effect. He may revoke such -vwitten au- 
thority at any time. 

Section 23. Whenever the governor, with the advice and consent 
of the council, shall determine that an emergency has arisen in regard 
to the cost, supply, production, or distribution of food or other neces- 
saries of life in this commonwealth, he may ascertain the amount of 
food, or other necessaries of life within the commonwealth; the amount 
of land and labor available for the production of food; the means of 
producing within or of obtaining without the commonwealth food or 
other necessaries of life as the situation demands; and the facilities for 
the distribution of the same, and may pubhsh any data obtained relat- 
ing to the cost or supply of such food or other necessaries, and the means 
of producing or of obtaining or distributing the same. In making the 
said investigation he may compel the attendance of witnesses and the 
production of documents and may examine the books and papers of 
individuals, firms, associations and corporations producing or dealing 
in food or other necessaries of life, and he may compel the co-operation 



64 OPINIONS OF THE ATTORNEY-GENERAL. 

of all officers, boards, commissions and departments of the common- 
wealth having information that may assist him in making the said in- 
vestigation. 

St. 1920, c. 610, purports to continue for a definite period those 
provisions of the Commonwealth Defence Act of 1917 "relating 
to the appointment, duties, authority and powers of a fuel ad- 
ministrator." It provides as follows: — 

Whereas, In order to secure an adequate supply of fuel for the citizens 
of Massachusetts, the services of a fuel administrator are indispensable 
and will continue to be indispensable for an indefinite period; and 
whereas, the provisions of the Commonwealth Defence Act of nine- 
teen hundred and seventeen relative to the appointment of such a fuel 
administrator may become inoperative at any time by federal action, 
therefore this act is hereby declared to be an emergency law, necessary 
for the immediate preservation of the public health and convenience. 

Be it enacted, etc., as follows: 

The provisions of the Commonwealth Defence Act of nineteen hun- 
dred and seventeen, being chapter three hundred and forty-two of the 
General Acts of nineteen hundred and seventeen, relating to the appoint- 
ment, duties, authority and powers of a fuel administrator, are hereby 
made operative until January first, nineteen hundred and twenty-two. 

There is no direct reference in the act of 1917 to any official 
known as a "fuel administrator." There are, however, pro- 
visions (contained in section 6 and in the two sections quoted 
above) which authorize the Governor to take possession of cer- 
tain property, including fuel, to use, sell or distribute the same, 
and to fix minimum and maximum prices therefor; to ascertain 
certain facts in regard to the necessaries of life (of which coal is 
one), and to publish any data obtained relating thereto; and, 
with the approval of the Council, by written commission to 
confer upon any person whom he may select authority to exer- 
cise the powers conferred on him by the act. The exercise of 
these powers is conditional upon the determination by the Gov- 
ernor, with the advice and consent of the Council, that the cir- 
cumstances warrant such exercise. 

For a complete understanding of the meaning of the later act 
it is important to know what was done under the earlier one. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 65 

After the passage of the act of 1917, Mr. James J. Storrow 
was appointed "fuel director," under a commission signed by 
the Governor, purporting to act "under the power vested in the 
executive by chapter three hundred and forty-two of the Gen- 
eral Acts of the year nineteen hundred and seventeen, to have 
supervision over the cost, supply and distribution of coal within 
the commonwealth, and to perform such other duties relating 
thereto as are set forth in the act above cited." From the fact 
of the creation of the office of fuel director and the appointment 
of Mr. Storrow to that office, it must be inferred that the Gov- 
ernor and Council had previously determined that the circum- 
stances required the exercise of the powers incident to the office. 
Cf. National Prohibition Cases, 253 U. S. 350, 386. Mr. Stor- 
row continued to hold that office until after the passage of the 
act of 1920. Subsequently he resigned and you were appointed 
Fuel Administrator by a commission signed by the Governor, 
purporting to be "under the provisions of chapter three hundred 
and forty-two of the General Acts of the year nineteen hundred 
and seventeen and chapter six hundred and ten of the Acts of 
the year nineteen hundred and twenty." 

Section 23 of the act of 1917 authorizes the Governor to com- 
pel the attendance of witnesses and the production of documents, 
and provides that he may examine the books and papers of in- 
dividuals, firms, associations and corporations producing or 
dealing in the necessaries of life (including coal), and this power, 
by section 12, is conferred upon the person appointed by him 
to the position of fuel director or administrator, with the powers 
incident to that position. 

I am therefore of the opinion that by virtue of your appoint- 
ment as Fuel Administrator under said acts, you have such 
powers with respect to summoning witnesses and compelling 
testimony as are conferred by said section 23, subject to the 
qualification that the act cannot compel any person to accuse 
or furnish evidence against himself contrary to article XII of 
the Declaration of Rights. Witnesses should be instructed as 
to this constitutional safeguard so that they may invoke it, if 
they desire, in a proper case. 



66 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Com- 
mittee on 
Mercantile 
Affairs. 

1921 
March 4. 



Constitutional Law — Federal Constitution — Contract 
Clause — Public Charity — Legislative Relief — Cy 
Pres. 

A corporate charter is a contract within the meaning of U. S. Const., art. I, § 10, 
and cannot be altered, amended or repealed by the Legislature without the 
consent of the corporation unless power so to do was either reserved by the 
Legislature or has since been acquired. 

Corporate charters granted prior to March 11, 1831, cannot be altered by the 
Legislature without the consent of the corporation unless power so to do 
was reserved in such charter. 

A power to alter, amend or repeal corporate charters does not authorize the Legis- 
lature to impair contracts lawfully made by such corporation with third 
parties. 

When the donee of property given for a public charitable purpose accepts the 
gift, he contracts to use such property for the designated purpose in the 
manner prescribed by the donor, and this contract is within the protection 
of U. S. Const., art. I, § 10. 

The Legislature has no power to authorize the execution of a public charity cy pres. 

Where a corporate charter granted to a church in 1825, without reservation of 
any power to alter, amend or repeal such charter, vests the control of the 
corporation in the pewholders of said church, the Legislature has no power 
to modify the electorate of said church by including non-pewholders therein. 

You ask my opinion as to the constitutionality of three bills 
now before your committee, namely, Senate Bill No. 285, entitled 
" An Act to authorize the union of the South End Reading Room 
Association with the Peoples Methodist Episcopal Church in 
Newburyport," House Bill No. 1139, entitled "An Act to au- 
thorize the Massachusetts Universalist Convention to hold the 
Jonathan Stetson Fund free and clear of certain trusts," and 
House Bill No. 1152, entitled "An Act to authorize the All Souls 
Unitarian Church in Roxbury to convey its property to the First 
Church in Roxbury." The titles of these bills indicate their 
purpose. I assume that the corporations or associations which 
are seeking legislative relief are of charitable character and hold 
property upon charitable trusts, the nature of which does not 
appear. The apparent purpose of the bills is to rearrange to a 
greater or less extent the administration, and, in one case at 
least, the application of the property so held. In other words, 
these corporations are apparently seeking from the Legislature 
not only authority to alter their corporate powers, but also, 
with respect to the property involved, relief more or less similar 



J. WESTON ALLEN, ATTORNEY-GENERAL. 67 

to that which a court of equity might be asked to afford upon 
a bill to authorize the administration of these charitable trusts 
cy pres. 

1. A corporate charter constitutes a contract between the 
State and the incorporators, which is within the protection of 
U. S. Const., art. I, § 10, and cannot be altered without the 
consent of the corporation unless power so to do was reserved 
at the time the charter was granted or has since been acquired. 
Dartmouth College v. Woodward, 4 Wheat. 518. By St. 1830, 
c. 81, which was approved on March 11, 1831, the Legislature 
reserved a general power to alter, amend or repeal all acts of 
incorporation thereafter granted, which power has been de- 
clared anew in codifications of that act and is now embodied in 
a constitutional amendment. R. S., c. 44, § 23; G. S., c. 68, 
§ 41; P. S., c. 105, §§ 2, 3; R. L., c. 109, § 3; St. 1903, c. 43"7, 
§ 2; G. L., c. 155, § 3; Mass. Const., Amend. LIX. An ex- 
press authority to revoke the powers granted to religious cor- 
porations was reserved by St. 1834, c. 183, § 7, approved April 
1, 1834, which power has been declared anew by subsequent 
codifications. R. S., c. 20; G. S., c. 30, §§ 4, 27, 43; P. S., 
c. 38, § 51; R. L., c. 36, § 55. Charters granted subsequent to 
these reservations of power may be altered, amended or repealed 
by the Legislature even against the will of the corporation. 
Holyoke Water Power Co. v. Lyman, 15 Wall. 500; Greenwood 
v. Union Freight Ry. Co., 105 LT. S. 13. With the consent of the 
corporations affected, the Legislature may amend charters 
granted prior to these reservations of power, and may authorize 
two corporations, no matter where organized, to consolidate. 

In this connection I note that section 6 of House Bill No. 
1152 authorizes "any adult member" of the First Church in 
Roxbury to vote upon the acceptance or rejection of the act. 
This church was incorporated under St. 1825, c. 133, which was 
approved on Feb. 26, 1825, prior to the aforesaid reservation of 
power to alter, amend and repeal corporate charters, and con- 
tains no reservation of such power. That act of incorporation 
vests in the pewholders of the church, as a body politic, the 
power to control its affairs. Since section 6 of the proposed bill 



68 OPINIONS OF THE ATTORNEY-GENERAL. 

undertakes to modify the electorate prescribed by the charter, 
by inchiding therein all adult members, whether pewholders or 
not, that section appears to be open to constitutional objection 
unless, in some manner not disclosed, the Legislature has ac- 
quired power to amend that charter. Dartmouth College v. 
Woodward, 4 Wheat. 518; see also Opinion of the Justices, 226 
Mass. 607. 

2. Broad as the power to alter, amend or repeal corporate 
charters may be, it does not authorize the Legislature to annul 
existing contracts lawfully made by the corporation with third 
parties. Vicksburg v. Vicksburg Water Works Co., 202 LT. S. 453; 
Boston (£• Lowell R.R. Corp. v. Salem d- Lowell R.R. Co., 2 Gray, 
1; see also Thornton v. Marginal Freight Ry., 123 Mass. 32, 34. 
When property is conveyed for a public charitable purpose, the 
acceptance of the gift by the donee constitutes a contract Avith 
the donor to administer the gift in the manner and for the pur- 
pose prescribed. Cary Library v. Bliss, 151 Mass. 364. Any 
conditions consistent with law may be annexed to the gift. The 
donor may prescribe that the trust shall be managed by a board 
of trustees constituted in a particular way, or otherwise pro- 
vide a particular scheme of management. Cary Library v. 
Bliss, 151 Mass. 364; Boston v. Doyle, 184 Mass. 373. He may 
select a particular corporation as trustee, and make it a term of 
his gift that that corporation shall continue to manage it. Har- 
vard College v. Society for Promoting Theological Education, 3 
Gray, 280; Winthrop v. Attorney-General, 128 Mass. 258. In 
so far as the donor prescribes such conditions, either expressly 
or by fair implication, they become a part of the contract between 
himself and the donee, which is within the protection of section 
10 of article I of the Federal Constitution, and cannot be im- 
paired by the Legislature. Cary Library v. Bliss, 151 Mass. 
364; Crawford v. Nies, 220 Mass. 61, 65; see also Knapp v. 
Railroad Co., 20 Wall. 117, 122, 123. Such a contract is be- 
yond the scope of the reserved power to amend, alter or repeal 
corporate charters. 

The bills before me do not disclose upon what terms these 
charities hold their property. It is impossible for me to deter- 



J. WESTON ALLEN, ATTORNEY-GENERAL. 69 

mine whether House Bill No. 1152 and Senate Bill No. 285 im- 
pair the obligation of an undisclosed contract with the donors. 
That can be ascertained only by an investigation of each gift. 
House Bill No. 1139 apparently presents a somewhat clearer 
case. That bill expressly discharges the trustee of a charitable 
fund from the obligation to use the property for the purposes 
apparently prescribed by the donor, and prescribes that it shall 
be used for other purposes. It seems probable that this violates 
the contract with the donor of the fund, but this cannot be as- 
certained with certainty while the precise terms of that contract 
remain undisclosed. Crawford v. Nies, 220 Mass. 61, 65; S. C. 
224 Mass. 474, 488. 

3. Another constitutional question as to the present bills, 
the answer to which the authorities in this Commonwealth 
leave uncertain, is whether they invade the judicial power, con- 
trary to article XXX of the Bill of Rights, which provides: — 

In the government of this commonwealth, the legislative department 
shall never exercise the executive and judicial powers, or either of them: 
the executive shall never exercise the legislative and judicial powers, 
or either of them: the judicial shall never exercise the legislative and 
executive powers, or either of them: to the end it may be a government 
of laws and not of men. 

A court possessing full equity jurisdiction has power in a 
proper case to authorize the administration of a public charity 
as nearly as possible in the manner prescribed by the donor, in 
case literal compliance with his directions has become imprac- 
ticable. There are, however, definite restrictions upon the 
exercise of this power. It cannot be exercised unless the court 
finds that the donor intended that the property should be used 
for charity, even though the precise method of application pre- 
scribed should be or become impracticable. Bowden v. Broion, 
200 Mass. 269; Gill v. Attorney-General, 197 Mass. 232, 237. 
If there be no such dominant charitable purpose, and the pre- 
cise scheme of application is not practicable, the property re- 
verts to the donor, or to his heirs or next of kin, as the case may 
be. Teele v. Bishop of Berry, 168 Mass. 341. Even if such 



70 OPINIONS OF THE ATTORNEY-GENERAL. 

dominant charitable purpose exists, the court will not, and, 
indeed, cannot, alter the scheme of the donor "either as to the 
objects of the charity or the agents by whom it is to be admin- 
istered, unless it ai^years to he impossible to carry aid the scheme 
according to its terins." Winthrop v. Attorney-General , 128 Mass. 
258, 261; Cary Library v. Bliss, 151 Mass. 364, 375; Harvard 
College v. Society for Promoting Theological Education, 3 Gray, 
280; Fellows v. Miner, 119 Mass. 541. When a charitable gift 
can be administered according to the directions of the donors, 
the court is not at liberty to modify it upon considerations of 
policy or convenience. Eliot v. Trinity Church, 232 Mass. 517, 
522. It is evident, therefore, that the power of a court of equity 
to authorize the administration of a public charitable trust as 
nearly as may be according to the directions gi\'en by the donor, 
if literal execution is impracticable, is not a power to vary the 
contract between the donor and the trustee as the court from 
time to time may deem wise. On the contrary, it is a power 
to construe that contract, to ascertain the dominant purpose 
of the donor and to carry that dominant purpose into effect, even 
at a sacrifice of some subsidiary- purpose, to the end that the 
dominant purpose shall not be defeated by the expression of a 
subsidiary desire. 

The exercise by a court of equity of the power to execute 
charitable trusts cy pres, that is, as nearly according to the in- 
tent of the donors as circumstances will permit, is clearly an 
exertion of the judicial power. In the last analysis it involves 
a construction and enforcement of the donor's contract. It 
would seem that if the Legislature should attempt to substitute 
itself for a court of equity and to discharge this judicial function, 
it would exercise judicial power contrary to the express mandate 
of the Bill of Rights. There is an intimation to this effect in 
Ware v. Fitchburg, 200 Mass. 61, 72. It may be that Senate 
Bill No. 285 is open to special objection upon this ground, since 
section 3 provides that, until the Supreme Judicial Court shall 
otherwise order, the property transferred from the South End 
Reading Room Association to the Peoples Methodist Episcopal 
Church shall be administered bv said church " in accordance with 



J. WESTON ALLEN, ATTORNEY-GENERAL. 71 

the terms of the original trusts, or as nearly in accordance there- 
with as is possible." 

It may be suggested, however, that the power of the king 
over charitable trusts, as parens ■patrice, is vested in the Legis- 
lature, and that this prerogative power may be exerted without 
invading the judicial function. There is no doubt that in Eng- 
land the king, acting under the sign manual and through the 
chancellor, had power to designate the application of property 
given for charity, especially if the particular application pre-^ 
scribed by the donor was illegal or against public policy, or if 
the gift was to charity generally, without any provision as to 
the mode of application. 11 C. J., § 75. This power does not 
pertain to courts of equity in this State. American Academy 
V. Harvard College, 12 Gray, 582, 596; Jackson v. Phillips, 14 
Allen, 539, 574, 575; Minot v. Baker, 147 Mass. 348, 351. But 
if it pertains to the people it is by no means clear how far it has 
been delegated to the Legislature. It seems to be settled that 
the Legislature may authorize trustees who hold land upon a 
charitable trust to sell such land and convert it into personal 
property to be held upon like trusts. Sohier v. Trinity Church, 
109 Mass. 1, 17; Old South Society v. Crocker, 119 Mass. 1, 26; 
Stanley v. Colt, 5 Wall. 119, 169. Perhaps this power may be 
founded upon public policy; that a gift of land to charity should 
not render such land forever inalienable because the donor 
omitted to confer an express authority to sell upon the trustees. 
Be that as it may, such decisions as there are leave much doubt 
as to whether this power marks the extreme limit of legislative 
authority, or whether it is a manifestation of a power which 
may have wider application. It would seem, however, that the 
twilight zone, which lies between the express limitation imposed 
by the contract clause of the Federal Constitution and the cy 
pres power possessed by courts of equity, is not of great extent, 
though difficult to define. 

For the sake of clearness, I may suggest the following tenta- 
tive conclusions. The Legislature, even without the consent of 
the corporation, has power to alter, amend or repeal corporate 
charters conferred since March 11, 1831, but this reserved power 



72 OPINIONS OF THE ATTORNEY-GENERAL. 

does not authorize the Legislature either to annul contracts law- 
fully made by the corporation or to strip the corporation of 
its property. I cannot advise you whether the present bills 
impair the obligation of contracts which are not before me. 
Whether the present bills are improper, upon the ground that 
the Legislature is in effect attempting to exercise the power of a 
court of equity to execute a charitable trust cy -pres in a proper 
case, is open to serious question. The matter is so important, 
both in its application to the scope of legislative power and to 
the due management of public charities, that it ought not, in 
my opinion, to be determined by the Attorney-General. 



ITsE OF Armory for Public Ball. 

Under G. L., c. 33, § 52, use of an armory for a public ball, the proceeds of which 
are to be devoted to a public hospital, is authorized if the ball is incidental 
to the charity; but if the charity is incidental to the ball, such use is not 
authorized. 

tantGenfrai Adams Couucil, Knights of Columbus, have requested per- 

nirch 10. mission to use the armory at Adams for the purpose of holding 

a public ball. Proceeds of the ball, over and above expenses, 
will be given to Plunkett Memorial Hospital, which is non- 
sectarian and is maintained by charitable gifts and by the town 
of Adams. You have requested my opinion upon the question 
whether the proposed use of the armory is for "public pur- 
poses," within the meaning of G. L., c. 33, § 52. 
Said section provides, in part : — 

(a) Armories provided for the militia shall be used only by the volun- 
teer militia for the military purposes or purposes incidental thereto 
designated by the commander-in-chief; provided, that the commander- 
in-chief, upon terms and conditions prescribed by him and upon an 
application approved by the militar}^ custodian of an armorj', may allow 
the temporary use of such armory for public purposes at such times and 
in such manner as not to interfere with the military use thereof. . . . 
As used in this section the words "public purposes" shall include: 
A public meeting or hearing held by a state department or commission. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 73 

An examination conducted by the division of civil service. 

A meeting of an organization composed of veterans of the civil, Span- 
ish or world war, a board of trade, a chamber of commerce or an occu- 
pational organization, or a meeting to raise funds for any non-sectarian 
charitable or non-sectarian educational purpose. 

A meeting to raise funds for a benefit association of policemen or fire- 
men. 

Elections, primaries or caucuses, and town meetings. 

Meetings of such military organizations of scholars in the public 
schools of a town as may be approved by the school committee thereof. 

The act provides that the phrase "pubhc purposes" shall 
include "a meeting to raise funds for any non-sectarian chari- 
table or non-sectarian educational purpose." The vv^ord "meet- 
ing," as used in the statute, connotes a gathering or assembly of 
persons to deliberate and sometimes to vote upon propositions 
before them, and also a gathering or assembly of persons to 
listen to addresses by others. It is not in all cases synonymous 
with the vi'ord "entertainment," nor, as used in the statute, does 
it include public balls and dances. I am of opinion, therefore, 
that the proposed use of the armory is not expressly authorized 
by the last-quoted portion of the statute. 

In providing, however, that certain uses shall be included in 
the phrase "for public purposes," the Legislatm-e has not pro- 
vided that other public uses shall not be so included. Any 
temporary use for imhlic purposes is authorized, provided that 
it is allowed by the commander-in-chief, approved by the mili- 
tary custodian, and in accordance with terms and conditions 
prescribed by the commander-in-chief. The statute does not 
authorize armories to be used for any private purpose whatever. 
If, therefore, a proposed use is not one of those which the statute 
expressly includes in the phrase "for public purposes," the ques- 
tion remains whether, apart from the statutory enumeration of 
particular uses that shall be deemed to be for public purposes, 
the proposed use is nevertheless for a public rather than a pri- 
vate purpose. 

Generally speaking, a use of an armory for a ball would not be 
a use for a public purpose, because the principal object of such a 



74 OPINIONS OF THE ATTORNEY-GENERAL. 

social occasion would be the personal enjoyment of the individuals 
present. If the net proceeds should be paid to a private charity, 
the use would still be for a pri^'ate purpose. In the case pre- 
sented, however, the net proceeds are to be paid to a "public 
charity, that is, to a hospital managed and in part maintained 
by the town of Adams. That fact renders the present case 
somewhat exceptional. 

As a rule, armories are to be used for military purposes only. 
Other proposed uses should be closely scrutinized to determine 
whether they are public, and if the principal purpose of them is 
private, an incidental benefit to the public will not alter the fact 
that they are for private rather than for public purposes, and 
therefore are not authorized by the statute. That is the proposi- 
tion of law with reference to which particular cases must be 
decided. Application of the law to the facts of particular cases 
is for the commander-in-chief and his military subordinates. 

In the present case, therefore, the commander-in-chief should 
determine, upon all available facts, whether the principal pur- 
pose of the ball is a pleasant social occasion for the guests, or 
whether the principal purpose is the raising of money for the 
hospital. Is the ball incidental to the charity, or is the charity 
incidental to the ball? If the ball is incidental to the charity, 
then the proposed use is authorized; if the charity is incidental 
to the ball, then the proposed use is not authorized. In deter- 
mining the question of fact, the commander-in-chief may prop- 
erly consider former balls held under similar circumstances and 
for similar purposes by the same applicant. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 75 



Equitable Lien — Claim for Materials furnished Sub- 
contractor FOR Construction of Building at Boston 
State Hospital — Money retained under Terms of 
Statute and Contract — Trust. 

a claim filed by a concern that furnished materials to a subcontractor of a prin- 
cipal contractor who built a building at the Boston State Hospital for the 
Department of Mental Diseases, is within the terms of G. L., c. 30, § 39, 
provided the claim was seasonably filed. 

Under the case of Nash v. Commonwealth, 174 Mass. 335, it must be taken that 
the Commonwealth had money in its hands which the statute cited intended 
should be security for the payment of the said bill, and that the money came 
to the Commonwealth for that purpose and was held by it as trustee for the 
concern. 

You have requested my opinion upon the following case : — To the Com- 

T . '11 • p 1 !• • niissioner of 

In connection with the construction oi the amms; room, east Mental Diseases. 

. 1921 

group, Boston State Hospital, a materialman has filed a claim for March lo. 
material fm'nished and used in the construction of the building. 
The general contractor had a contract with a subcontractor for 
the furnishing of light iron. The contractor has paid to the 
subcontractor an amount on account of this contract. The 
materialman furnished the light iron to the subcontractor, and 
there is due to it from the subcontractor $688, for which sum the 
materialman has filed a claim. 

You ask whether the claim of the materialman is within the 
provisions of G. L., c. 30, § 39, which are as follows: — 

Officers or agents contracting in behalf of the Commonwealth for the 
construction or repair of public buildings or other public works shall 
obtain sufficient security, by bond or otherwise, for payment by the 
contractor and sub-contractors for labor performed or furnished and for 
materials used in such construction or repair; but in order to obtain the 
benefit of such security, the claimant shall file with such officers or 
agents a sworn statement of his claim, within sixty days after the com- 
pletion of the work. 

The point raised by you w^as decided in the case of Nash v. 
Commonwealth, 174 Mass. 335. Nash filed a bill in equity against 
the Commonwealth, one Casparis, general contractor, and Smith 
& Burden, subcontractors, to enforce payment of a claim for 



76 OPINIONS OF THE ATTORNEY-GENERAL. 

materials furnished by Nash to Smith & Burden, contractors 
under Casparis, the general contractor, who had a contract 
with the Metropolitan Water Board for the construction of an 
aqueduct as a part of the metropolitan water system. The gen- 
eral contractor argued in substance that Nash could not avail 
himself of the money retained by the Commonwealth because 
of the want of privity of contract, but our Supreme Judicial 
Court held that the case rested not alone upon the provisions in 
the contract, but upon that provision taken in connection with 
the statute. Under the provisions of law made for the peti- 
tioner's benefit, the Commonwealth was held to have money 
which it held as security for the payment of his claim. It held 
the money as trustee for the petitioner, not simply by virtue 
of the article in the contract. The purpose of the statute was 
to secure the petitioner's claim, and the Commonwealth, having 
retained a fund for the materialmen in compliance with the 
statute, is under an implied obligation to hold it for that pur- 
pose. 

That such a suit may be maintained if the petitioners have 
a claim that might be the subject of a mechanic's lien is set forth 
again in the case of Kennedy v. Commonwealth, 182 Mass. 480, 
and the rule was again supported as recently as March 17, 1920, 
in the case of Bay State Dredging d- Contracting Co. v. IV. H. 
Ellis d- Son Co., 235 Mass. 263, 268, where the court used this 
language : — 

The right to have the benefit of that security enured to any laborer 
and materialman who should furnish labor or material which was used 
or employed in the construction or repair of the pubUc work if he should 
file a sworn statement of his claim within sixty days after the completion 
of the work contemplated by the original contract. 

Accordingly, it is my opinion that the claim of the material- 
man is within G. L., c. 30, § 39, provided the said company 
filed a sworn statement of its claim within sixty days after the 
completion of the work contemplated by the original contract. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 77 



Second-hand Automobile — Sale by Sheriff under Execu- 
tion — Notice to Registrar of Motor Vehicles and 
Chief of Police. 

A sheriff, who by force of an execution is obliged to sell a second-hand automobile, 
is not required to give notice to the registrar of motor vehicles and the chief 
of police of the city or town where the sale is to be made, under G. L., c. 140, 
§ 65. 

You have requested my opinion as to whether or not a sheriff To the Com- 
missioner of 
to whom has been issued an execution, and who by force of such puW^c works. 

execution is obhged to sell a second-hand automobile, comes ^ "''^ " • 

within the provisions of G. L., c. 140, § 65, so that he is obliged 

to give the required notice set forth in that section. 

G. L., c. 140, § 65, reads as follows: — 

Any person not licensed under section fifty-nine, selling or offering 
to sell any motor vehicle, except to a licensee under class one of section 
fifty-eight or a person exempted by section fifty-seven, shall, at least 
four days before such sale, notify in writing the registrar and the chief 
of police or selectmen in the city or town where the sale is to be made, 
or, if in Boston, the police commissioner, unless he has secured a release 
as provided in the preceding section. Such notice shall contain all the 
information required by law to be set forth in an application for the 
registration of motor vehicles in the commonwealth, with the names 
and addresses of the vendor and vendee. 



Sections 57 to 69, inclusive, of said chapter 140 relate to the 
sale of second-hand motor vehicles, and the obvious purpose of 
the statutory provisions contained in those sections is to serve 
as a check upon sales of stolen automobiles. 

G. L., c. 37, § 11, requires sheriffs and deputies to serve and 
execute within their counties all precepts lawfully issued to them, 
and all other process required by law to be executed by an officer. 
G. L., c. 235, §§ 36 to 45, prescribe the manner in which personal 
property shall be seized and sold upon execution. Such sale 
must be at public auction, and there are complete provisions for 
notice of sale, return of execution, disposition of proceeds of 
sale, etc. The precise question is whether G. L., c. 140, § 65, 



78 



OPINIONS OF THE ATTORNEY-GENERAL. 



is intended to superadd further requirements in case the prop- 
erty sold on execution is an automobile. 

I am of opinion that G. L., c. 140, § 65, does not apply to a 
sale of an automobile by a sheriff or his deputy, under G. L., 
c. 235, §§ 36 to 45. That sale must be at auction. It is im- 
possible to give, four days in advance of the sale, the name and 
address of the auction purchaser. It may be doubted whether 
the sheriff is the vendor, since he acts merely as auctioneer in 
executing a power to sell conferred by law. The execution 
debtor is certainly not the vendor, since the sale is involuntary 
as to him. Under these circumstances, there seems to be great 
difficulty in giving the name and address of the vendor. The 
alternative, namely, procuring from the officials described in 
G. L., c. 140, § 64, the license to sell required by that section, 
would make a sale upon execution by order of the court depend 
upon the permission of those officials. Even if the Legislature 
had power to subject execution sales to such a condition, I can- 
not believe that it was the intention to do so, especially since a 
sale on execution is not less notorious than a sale made in com- 
pliance with said section 65. 

Accordingly, my answer to your inquiry is in the negative. 



Credit Unions — Right to purchase and own Real 
Estate — Office Accommodations. 



To the Com- 
missioner of 
Banks. 
1921 
March 12. 



Though the power to transact bu.siness carries the power to provide a suitable 
place for the transaction of business, investment of their capital by credit 
unions in real estate would materially interfere with their primary functions. 
They may, however, lease real estate for office purposes. 

You request my opinion upon the question whether a credit 
union may, with your approval, purchase and own real estate to 
be used, either in whole or in part, as a convenient place for the 
transaction of its business. 

A credit union is a corporation, and, like other corporations, 
possesses powers specifically granted to it, and other powers 
incidental to those specifically granted and necessary to their 



J. WESTON ALLEN, ATTORNEY-GENERAL. 79 

exercise. The power to transact business at all carries with it 
power to provide a suitable place for the transaction of business. 

It does not follow, however, that the power to provide a suit- 
able place for the transaction of business is unlimited. It is 
necessarily circumscribed and conditioned by the purposes for 
which a credit union is organized, and by the nature of the ac- 
tivities in which it is authorized to engage. To illustrate by 
an extreme case: if the entire resources of a credit union con- 
sisted of $25,000, it would not be authorized to purchase an 
office building for that sum, since to do so would not facilitate 
the purposes of the organization, but would, in fact, defeat them. 

Since the power to provide office accommodations is not un- 
limited, the question arises. Where is the line of limitation? 
I believe it must be drawn at the point where operating expenses 
cease and capital investment begins. The principal purposes of 
credit unions are two: first, to encourage and develop thrift 
among the people; second, to provide for persons of limited 
means a place where they may secure loans for certain necessary 
and useful purposes. If any considerable portion of available 
capital is invested in the ownership of real estate, it is plain that 
less money will be available for loans to members. That is to 
say, investment of capital to provide office accommodations 
would in a measure defeat one of the principal purposes of the 
credit union. I am of opinion, therefore, that a credit union is 
authorized to lease real estate for office purposes, but not to 
purchase it. This power is sufficient to effectuate the purposes 
of organization, and not sufficient to interfere with them. 

Up to this point I have discussed the question from the stand- 
point whether an express power to do business carries with it 
an implied power to expend capital to provide an office for the 
transaction of business. The investment of funds is the prin- 
cipal activity of credit unions, and I shall now consider the ques- 
tion presented to me from the standpoint whether a credit union 
may, as a part of its business of investing funds, invest in real 
estate to be used by itself for office purposes. 

Investment of the funds of credit unions is provided for by 
G. L., c. 171, §§ 5 and 17, which read as follows: — 



80 OPINIONS OF THE ATTORNEY-GENERAL. 

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 reason- 
able rates, or invest, as hereinafter provided, the funds so accumulated; 
and may undertake such other activities relating to the purpose of the 
association as its by-laws may authorize. Section fortj''-eight of chapter 
one hundred and seventy shall not apply to credit unions. 

Section 17. 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 the following section; and any capital, 
deposits 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 the commonwealth, 
or in national banks located therein, or may be invested in the bonds of 
any other credit union, or in any securities which are at the time of their 
purchase legal investments for savings banks in the commonwealth, or, 
with the approval of the commissioner, may be deposited in other credit 
unions or may be invested in the shares of other credit unions or co- 
operative banks incorporated in the commonwealth; provided, that the 
total amount invested in the shares of other credit unions or co-operative 
banks shall not exceed thirty per cent of the capital and surplus, and that 
not more than twenty per cent shall be invested in the shares of other 
credit unions, nor more than twenty per cent in co-operative bank shares. 

These sections provide, in effect, that funds may be invested 
as follows: in loans to members; in deposits in savings banks 
and trust companies organized under the laws of Massachusetts, 
and in national banks situated in Massachusetts; in the bonds 
of other credit unions; in securities that are legal investments 
for Massachusetts savings banks; and, under certain conditions, 
in deposits in other credit unions, and in the shares of other 
credit unions and of co-operative banks incorporated in Massa- 
chusetts. A reading of section 19 of the same chapter indi- 
cates that loans may be made to members upon security of real 
estate, but no provision is made for the use of funds in the pur- 
chase of real estate for any purpose whatever. This omission is 
significant in view of the fact that an express though qualified 
power to hold real estate for the transaction of its business was 
first conferred upon savings banks by St. 1870, c. 226, now 
G. L., c. 168, § 54, cl. 11 (see Suffolk Savings Bank, Petitioner, 



J. WESTON ALLEN, ATTORNEY-GENERAL. 81 

149 Mass. 1; I Op. Atty.-Gen. 420); and upon trust compa- 
nies by St. 1888, c. 413, § 18, now G. L., c. 172, § 41 (see II Op. 
Atty.-Gen. 317). 

I am therefore of opinion that a credit union is not author- 
ized, either with or without your approval, to purchase and hold 
real estate to be used as a convenient place for the transaction 
of its business. 



Private Bankers — Surrender of License • — Bond. 

Where an association licensed to do business under G. L., c. 169, § 3, voluntarily 
surrenders its license, the Treasurer and Receiver-General may, in his dis- 
cretion, return the bond and the money and securities filed and deposited 
with him under G. L., c. 169, §§ 2 and 3, before the expiration of the period 
of one year referred to in said section 3. 



You state that the New Bedford Polish Association, Inc., of Treasurer 
New Bedford, Mass., filed with the treasury department on Feb. cfe*^e^fr.^" 
3, 1920, under the provisions of St. 1907, c. 377, and acts in ad- March u. 
dition thereto and amendment thereof, a bond for .$15,000, to- 
gether with a certificate of deposit of the Hanover Trust Com- 
pany of Boston for $15,000; that you are now advised by the 
Commissioner of Banks that the license issued under said bond 
to the New Bedford Polish Association, Inc., expired on Feb. 3, 
1921, and that the said association never did any business under 
the license. You ask whether, if the license is surrendered, you 
can legally return the security deposited in lieu of surety on the 
bond, and the bond itself. 

The question is governed by G. L., c. 169, § 3. Said section 
states the requirements of bonds and the terms of licenses to be 
issued, and provides as follows: — 

The license shall be revocable at all times by the commissioner for 
cause shown, and in the event of such revocation or of a surrender of the 
license, no refund shall be made in respect of any license fee paid. Every 
license shall be surrendered to the commissioner within twenty-four 
hours after written notice to the holder that the license has been revoked. 
In case of the revocation of the license, the money and securities and the 
bond, if there be one, shall continue to be held by the state treasurer for 



82 OPINIONS OF THE ATTORNEY-GENERAL. 

a period of one year from the date of the revocation of the Hcense unless 
otherwise directed by the order or judgment of a court of competent 
jurisdiction. 

The statute requires that, in case of revocation of the license, 
the money and securities deposited and the bond shall continue 
to be held by the Treasurer and Receiver-General for a period 
of one year, unless otherwise directed by the court. The precise 
question is whether this requirement includes the case of a vol- 
untary surrender of the license by the licensee. 

The word "revocation" means the act of recalling, and sig- 
nifies an act on the part of a person by whom a right is granted 
revoking that right. The word "surrender," on the other hand, 
means a voluntary giving up or giving back of something, and 
signifies an act on the part of the person having the thing sur- 
rendered by which that thing is relinquished. A license is re- 
voked by the licensor and surrendered by the licensee. 

The statute quoted refers expressly to the two possible events 
of "revocation" and "surrender" of a license. 

I am of opinion that the word "revocation," in the last sen- 
tence of the section under consideration, does not include the 
case of a surrender, and that the requirement that the Treas- 
urer shall continue to hold the security and the bond for a period 
thereafter does not apply to the case of a surrender. It may 
well be that the General Court was of the opinion that in certain 
cases where a license is voluntarily surrendered the security de- 
posited in lieu of a surety on the bond might be returned; and in 
a case where an association never did any business under the 
license, the occasion for retaining the securit}^ for the protection 
of depositors does not seem to be present, as in the ordinary 
case. I am of opinion that, if you are satisfied that there is no 
need of holding the bond and security in the present instance, 
it is within vour discretion to return them. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 83 



Co-operative Banks — Classes of Shares — Loans on 

Shares. 

Co-operative banks, with respect to loans made by them, are restricted to loans 

specifically authorized by statute. 
Authority to make loans upon any other security than that specifically authorized 

cannot be implied. 



I have the honor to acknowledge a copy of an order passed 
by the Honorable Senate, which is as follows : — 

Ordered, That the Senate request the opinion of the Attorney-General 
as to the necessity of enacting House Bill No. 695, being "An Act author- 
izing loans upon paid-up shares issued by co-operative banks," in order 
to accomphsh the purpose desired. 

House Bill No. 695, referred to in the order, as passed to be 
engrossed by the House, reads as follows : — 

Section twenty-seven of chapter one hundred and seventy of the 
General Laws is hereby amended by inserting after the word "matured," 
in the fifth line, the words : — or paid-up, — so as to read as follows : — 
Section 27. Loans may be made upon unpledged shares to an amount 
not exceeding ninety per cent of their withdrawal value at the time of 
the loan, and for every such loan a note shall be given, accompanied by 
a transfer and pledge of the shares borrowed upon. Loans may be made 
upon matured or paid-up shares to an amount not exceeding ninety per 
cent of their face value, as represented by the certificate. For every 
such loan a note shall be given accompanied by a transfer of the certificate 
as collateral for the loan. 

The first statute authorizing the establishment of co-operative 
banks was enacted in 1877 (St. 1877, c. 224). 

Until the year 1914 the statute provided for only one class 
of shares, namely, shares which had not become matured. In 
that year the statute was amended so as to give a shareholder a 
right, under certain conditions, to hold ten matured shares. See 
also St. 1914, c. 643, § 6. No change was made in the provisions 
of law relative to loans on shares. 

In 1915 the Bank Commissioner requested the opinion of the 
Attorney-General as to whether a co-operative bank was au- 



To the Senate. 

1921 
March 15. 



84 OPINIONS OF THE ATTORNEY-GENERAL. 

thorized to execute loans on matured shares belonging to a share- 
holder. The Attorney-General, in stating as his opinion that 
such loans could not be made, said (IV Op. Atty.-Gen. 389), in 
part : — 

Co-operative banks are not ordinary institutions for savings, and are 
not intended to be banks where money may remain on deposit indefi- 
nitely, although, under certain conditions, ten shares are permitted to be 
continued in the corporation as matured shares. 

The purpose of co-operative banks may be said to be to effect the 
saving of monej^ by a compulsory method as distinguished from the 
permissive policy maintained by other banks. The only departure from 
this purpose is the provision in the statute giving the right to hold ten 
matured shares as above stated. 

The statute does not specifically provide for loans on these matured 
shares, and in my opinion does not authorize such loans by implication. 

In 1918 the statute was further amended so as to authorize 
loans upon matured shares to an amount not exceeding 90 per 
cent of their face value as represented by the certificate. See 
St. 1918, c. 101. This amendment appears in the General Laws 
as section 27 of chapter 170. 

St. 1920, c. 429, for the first time authorized the issue of 
paid-up shares. This amendment appears in the General Laws 
as section 12 of chapter 170. No change was made in the pro- 
visions of law relative to loans upon shares. 

The history of legislation relative to co-operative banks shows 
that the original purpose was to compel holders of shares to 
save money under penalty of certain fines and compulsory with- 
drawal from the bank, and to permit them to borrow money to 
anticipate the ultimate value of their shares. Members of such 
corporations could hold only shares which had not matured. 
Later they were permitted, under certain conditions, to hold ten 
matured shares, and finally they were also authorized to hold, 
under certain conditions, ten paid-up shares. Loans were first 
authorized only upon notes secured by real estate mortgages. Sub- 
sequently loans were authorized, under certain conditions, upon 
shares which had not matured to an amount not exceeding the 
withdrawal value, and this amount was reduced by later statutes 



J. WESTON ALLEN, ATTORNEY-GENERAL. 85 

to 95 per cent and then to 90 per cent of the withdrawal value. 
Finally loans were also authorized upon matured shares to an 
amount not exceeding 90 per cent of their face value. 

It therefore clearly appears that the intent of the Legislature 
with respect to loans made by co-operative banks has always 
been to restrict such banks to loans specifically authorized by 
statute. Authority to make loans upon any other security than 
that specifically authorized cannot be implied. I am therefore 
of the opinion that if the Legislature desires to authorize co- 
operative banks to make loans on paid-up shares, it is necessary 
to enact House Bill No. 695. 



Province Lands — Town of Provincetown — Local Tax- 
ation — Structures on Flats by Licensee of the 
Commonwealth. 

The town of Provincetown cannot assess taxes on structures erected by licensees 
under G. L., c. 91, § 14, upon the fiats of the Commonwealth at the said 
town. 

On behalf of the committee on harbors and waterways, which to the senate 
is considering House Bill No. 571, relative to the title to certain Harbors ^d" 
province lands owned by the Commonwealth in the town of 1921 

Provincetown, you have asked my opinion as to whether or not 

the board of assessors of Provincetown can legally assess and 
collect taxes on propert}^ which is on the land controlled by the 
Commonwealth in the town of Provincetown. While your in- 
quiry is perhaps collateral to the subject-matter presented by the 
bill, I am pleased to submit the following for your consideration. 

House Bill No. 571 provides as follows: — 

Ownership and occupancj^, actual or constructive, during any period 
between June tenth, eighteen hundred and ninety-three, and December 
first, nineteen hundred and one, by any person owning adjoining land on 
property lying east and south of Unes fixed by section twenty-five of 
chapter ninety-one of the General Laws is hereby declared to have abso- 
lutely divested the commonwealth as of January first, nineteen hundred 
and two, of any property, rights, title, or interest in any part of said 
province lands, not over one hundred rods below high-water mark. 



86 OPINIONS OF THE ATTORNEY-GENERAL. 

I am informed that this bill is introduced as the result of a 
decision handed down by our Supreme Judicial Court on May 
22, 1920, in the case of Sklaroff v. Commonwealth, 236 Mass. 87. 
In that case the facts were that the petitioners had filed in the 
Land Court a petition to register the title to a parcel of land 
situated in Provincetown, and the question raised, in brief, 
was as to whether or not the petitioners' title went to low-water 
mark, since the Commonwealth claimed that the title to all the 
land and flats below high-water mark was in the Commonwealth. 
I understand that your committee has before it the decision, in 
which the reasons for the court's determination are pointed out, 
that determination being, in brief, that the Commonwealth had 
not been deprived of its title to the lands below high-water mark 
by any acts of the petitioners. 

Taking the facts of the Sklaroff situation as a specific case 
upon which to answer your inquiry, I find that Sklaroff & Sons 
were given licenses under the provisions of R. L., c. 96 (said 
licenses being dated Jan. 2 and June 26, 1918), to construct 
certain structures on the flats below high-water mark at Province- 
town. The court having held that the title to the flats is in the 
Commonwealth, the question arises as to the right of the town 
of Provincetown to levy taxes upon the structures placed upon 
the land of the Commonwealth by permission of said licenses. 

An early case, Boston & Maine Railroad v. City of Cambridge, 
8 Cush. 237, would seem, at first sight, to indicate that the struc- 
tures might be taxable. In that case the Legislature had given 
the Boston & Maine Railroad, by a specific act, authority to 
fill certain flats between the channels of the Charles and Miller 
rivers, outside of the location of the railroad, for the location of 
engine houses and wood houses, and for other purposes for the 
use of the railroad, and the court indicated that the structures 
and lands filled were not exempt from taxation. This decision, 
however, is not satisfactory for our purposes, as it is not indi- 
cated whether the court considered that the title to the land 
filled was in the Commonwealth or whether the title was in the 
railroad company, and, being outside of the location, was tax- 
able for that reason. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 

As to the Provincetown situation, the first question that arises 
is whether or not the structures standing by permission upon the 
Commonwealth's land are to be considered, for the purpose of 
taxation, as real estate or as personalty. 

Real estate for the purpose of taxation is defined by G. L., 
c. 59, § 3, as follows: - — 

Real estate for the purpose of taxation shall include all land within 
the commonwealth and all buildings and other things erected thereon or 
affixed thereto. 

In the case of Flanders v. Cross, 10 Cush. 514, the facts were 
as follows: A, residing in another State, owned a building in 
Lawrence in this State, standing, by consent, on the ground of 
another person. In arriving at its conclusion the court said : — 

Was the property here to be considered as real estate for the purpose 
of taxation, or as personal? The language of the statute would seem 
to make it the former. "Real estate," it says, "shall, for the purposes 
of taxation, be construed to include all lands within the State, and all 
buildings and other things erected on or affixed to the same." Rev. 
Sts., c. 7, § 2. 

The court also said : — 

There is no power in the collector to divide the property, to levj'' on 
the building severed from the land, as divisible parts of the same piece 
of real estate. 

In the case of Milligan v. Drury, 130 Mass. 428, it was held 
that a building resting on sills upon the ground is taxable as 
real estate, although, by agreement between a lessor and lessee 
of the land, the latter had the right to remove the building at 
the expiration of the lease. In this case the court again quoted 
the definition of real estate for the purpose of taxation, and 
stated that — 

The assessors were not obliged to inquire into the private contracts 
between the parties, but had the right to do as they did, and assess to- 
gether as real estate the land and the buildings affixed thereto. 



87 



88 OPINIONS OF THE ATTORNEY-GENERAL. 

Therefore, in my judgment, the structures now standing on 
the flats of the Commonwealth by hcense would, for the pur- 
pose of taxation, be considered real estate. 

The next step is a consideration of the second clause of G. L., 
c. 59, § 5, which reads as follows : — 

The following property . . . shall be exempt from taxation: 

Second, Pi-operty of the commonwealth, except real estate of which 
the commonwealth is in possession under a mortgage for condition 
broken, lands in Boston known as the commonwealth flats, if leased for 
business purposes, buildings erected by lessees under section twenty-six 
of chapter seventy-five [this section authorizes the trustees of the Massa- 
chusetts Agricultural College to lease to any professor, etc., land in 
Amherst or Hadley owned by the Commonwealth], and property tax- 
able under chapter five hundred and seventy-five of the acts of nineteen 
hundred and twenty [this chapter relates to real estate owned by the 
Commonwealth and held by the Metropolitan District Commission in 
the town of Hull, and which is leased or occupied for business purposes]. 

To summarize the above exemption, all property of the Com- 
monwealth is exempted from taxation except where it falls within 
the four exceptions enumerated above. 

The first case in point is Corcoran v. Boston, 185 Mass. 325, 
which involved land on the so-called Commonwealth Flats, for 
which the Commonwealth had given a bond for a deed, and the 
land was in possession of Corcoran, who would become entitled 
to a deed upon payment of the purchase money, and who had 
erected buildings on the land and was carrying on business there. 
In deciding the case the court pointed out that the statute then 
provided that the property of the Commonwealth, except real 
estate of which the Commonwealth is in possession under a 
mortgage of condition broken, should be exempt from taxation. 
Continuing, the court said: — 

The language could not be plainer. The words "the property of the 
Commonwealth" mean the same as "all the property of the Common- 
wealth." And the fact tliat only one exception is made shows that no 
other exception could have been intended, and that a construction such 
as contended for by the respondent, namelj'', that the exemption extends 



J. WESTON ALLEN, ATTORNEY-GENERAL. 89 

only to property held by the Commonwealth for governmental pur- 
poses, would be unwarranted. The property that was taxed is the prop- 
erty of the Commonwealth, notwithstanding the Commonwealth has 
contracted to sell it to the petitioner, and the petitioner is in possession, 
and the exemption attaches to it so long as it continues to be the prop- 
erty of the Commonwealth. 

The Corcoran case came up again (193 Mass. 586) after the 
Legislature had enacted St. 1904, c. 385, providing that the 
lands of the Commonwealth known as the Commonwealth Flats 
"shall, if leased for business purposes, be taxed by the city of 
Boston to the lessees thereof." The court held that the statute 
did not apply to land occupied under a bond for a deed from 
the Commonwealth by one who carries on business there, and 
that the land was exempt from taxation. In this case the pe- 
titioner had erected a manufacturing establishment and was 
carrying on business there as a manufacturer. 

In a later case, Boston Fish Market Corp. v. Boston, 224 Mass. 
31, the petitioners, by indenture entered into wdth the Common- 
wealth, had become the lessees of certain parts of the Common- 
wealth Flats, and the court held that the general exemption from 
taxation of the property of the Commonwealth did not apply to 
those portions of the Commonwealth Flats that were leased for 
business purposes, as they were expressly subjected to taxation. 
The court in its decision pointed out that the plaintiff was not a 
mere licensee under R. L., c. 96, § 17. This section is the one 
authorizing the licensing and erection of structures in tide waters. 

This observation by our Supreme Judicial Court strongly in- 
dicates that the court would find, if the question were presented 
to them, that structures erected by a mere licensee upon property 
of the Commonwealth under R. L., c. 96, § 17 (now G. L., c. 91, 
§ 14), would not be subject to taxation. Accordingly, it is my 
opinion that the town of Provincetown cannot assess taxes on the 
structures now standing upon the flats of the Commonwealth at 
Provincetown by license of the Commonwealth. 

While you have not raised the question, and I do not pass upon 
it, there would appear to be some question as to the constitu- 
tionality of House Bill No. 571 in its present form, since it operates 



90 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Joint 
Committee on 
Legal Affairs. 

1921 
March 18. 



to vest in private parties, for private purposes, and without con- 
sideration, lands belonging to the Commonwealth. 

A further consideration to be borne in mind is the advisability 
of expressly reserving in land between high-water mark and low- 
water mark the public easement for the purposes of navigation 
and free fishing and fowling, and of passing freely over and through 
the water without any use of the land underneath, wherever the 
tide ebbs and flows. 

Chakitable Trust — Religious Society — Power of Legis- 
lature TO TERMINATE TrUST. 

The Legislature has no power to terminate a charitable trust under which the 
legal title to certain land and a meeting house was vested in trustees for the 
concurrent use and benefit of a church and a religious society. 

Certain property having been left to trustees for public charitable purposes, and 
the particular mode of administration having been prescribed by the donor, 
the donee, by accepting the property, bound itself to administer the trust 
in the manner prescribed. The Legislature cannot interfere to control or 
change the method. 

You have asked my opinion as to the legal validity of the pro- 
visions contained in House Bill No. 602 in case of its passage. 

The bill in question is to authorize George W. Noyes and other 
trustees to terminate a certain trust and to convey certain prop- 
erty to the Center Congregational Society of Haverhill, and reads 
as follows : — 

George W. Noyes, Charles E. Dole and George O. Hoyt appointed 
trustees by the probate court for the county of Essex under certain deeds 
or instruments of trust from David Marsh, Jr., and John Marsh to John 
Marsh and others, dated December seventeen, eighteen hundred and 
thirty-four, and an indenture made by John Marsh and others and 
Eliphalet Kimball and others are herebj^ authorized to convey the prop- 
erty described in said instruments together with the buildings thereon in 
fee simple to the Center Congregational Society of Haverhill for the use 
of said society and upon said conveyance said trust shall terminate and 
said trustees shall be discharged of their trust under said instruments. 



The first trust instrument in this case is that of David Marsh, 
Jr., and John Marsh, executed Dec. 17, 1834, by which they 
conveyed to John Marsh and others, a building committee, a 



J. WESTON ALLEN, ATTORNEY-GENERAL. 91. 

certain parcel of land in Haverhill, with the meeting house stand- 
ing thereon. The property was conveyed in trust, one of the 
conditions being that the building committee should convey the 
land and meeting house to one Kimball and others, who should 
hold the property in trust for the concurrent use and benefit of 
the Center Congregational Church and the Center Congregational 
Society. On the same day John Marsh and others, the said 
building committee, conveyed to Kimball and others, trustees, 
the aforesaid parcel of land and meeting house, and the condi- 
tions of this second trust deed conformed to a trust deed of a 
meeting house in the West Parish of Haverhill, as had been di- 
rected in the original trust deed of David Marsh, Jr., and John 
Marsh. In the indenture from the building committee to the 
original trustees this language is found: — 

And it is hereby fully declared and expressly understood that this 
sale and convej^ance is made upon the trusts and for the purposes here- 
inafter expressed, and to and for no other use, intent or purpose what- 
ever; that is to say, upon this special trust and confidence that the said 
parties of the second part, the survivors of them and their assigns, and 
the survivor of them, his heirs and assigns, shall keep, suffer and permit 
the said meeting house and land at all times hereafter to be used, occupied 
and enjoyed as and for a meeting house. 

An examination of the instrument will disclose express condi- 
tions as to the administration of the trust. The trustees agreed 
that — 

They will hold said house and land in joint tenantry, and that they 
or either will never sue out any writ at common law nor present any 
petition under the statute for the partition of the said premises, nor 
attempt the partition thereof in any way whatsoever, or suffer or permit 
the same to be made, and if any attempt should be made to obtain par- 
tition of the premises that this covenant may be pleaded in law thereto 
by any of the present parties hereto or any other person who may be in 
any way interested therein, so that this covenant shall forever be an 
effectual bar to any partition of the said premises. 

It appears that as the old trustees died no steps were taken to 
fill the vacancies, with the result that in 1898 there were no 



92 OPINIONS OF THE ATTORNEY-GENERAL. 

trustees to administer the trust, and the matter was taken up in 
the Probate Court of Essex County, and the court appointed 
George W. Noyes and four others to act as trustees. Two of 
said trustees have since died, and George W. Noyes, Charles E. 
Dole and George O. Hoyt are the present trustees. 

By the deeds of David Marsh, Jr., and John Marsh to the 
building committee, and that of the building committee to Kim- 
ball and others, trustees, a valid charitable trust was created, 
under which the legal title to the land and meeting house vested 
in the trustees for the concurrent use and benefit of the Center 
Congregational Church and the Center Congregational Society. 
Austin V. Shaw, 10 Allen, 552; Chase v. Dickey, 212 Mass. 555; 
Ripley v. Brown, 218 Mass. 33; Crawford v. Nies, 220 Mass. 
61, 64. 

Where property is left to trustees for public charitable purposes, 
and the particular mode of administration is prescribed by the 
donor, the donee, by accepting the property, binds itself to ad- 
minister the trust in the manner prescribed. The Legislature 
cannot interfere to control or change the method. The court 
will not, and, indeed, cannot, alter the scheme of the donor "either 
as to the objects of the charity or the agents by whom it is to be 
administered, unless it appears to be impossible to carry out the 
scheme according to its terms." Winthroy v. Attorney-General, 
128 Mass. 258, 261; Gary Library v. Bliss, 151 Mass. 364, 375; 
Harvard College v. Society for Promoting Theological Education, 
3 Gray, 280; Fellmvs v. Miner, 119 Mass. 541. 

Whenever a charitable trust can be administered in accordance 
with the directions of the donor or founder, our Supreme Judicial 
Court has said that "it is not at liberty to modify it upon con- 
siderations of policy or convenience." Jackson v. Phillips, 14 
Allen, 539, 591, 592. The conditions laid down in the trust 
instruments can be carried out by the present trustees. 

The language quoted above, that the conveyance was made 
upon the special trust and confidence that the trustees should 
permit the meeting house and land at all times hereafter to be 
used for public worship, in my opinion was a stipulation that the 
trust should last forever, and that being so, it is doubtful if the 



J. WESTON ALLEN, ATTORNEY-GENERAL. 93 

Legislature has power to terminate the trust, as is provided for 
in the House bill under consideration. 

In a recent case {Crawford v. Nies, 224 Mass. 474, decided in 
June, 1916) the Supreme Judicial Court held that the Legislature 
had no power to terminate a trust where by a deed certain land 
was conveyed to trustees for the use and benefit of members of a 
certain church. In view of the decision in that case, I am of 
opinion that the Legislature has no power to terminate the trust 
in question. 



Taxation — Domestic Corporation — Liability of Corpora- 
tion NOT ENGAGED IN BUSINESS. 

A domestic corporation which sold all its assets and ceased doing business prior 

to Jan. 1, 1920, is not subject to taxation under the provisions of Gen. St. 

1919, c. 355, and St. 1920, c. 550, as amended, both of which became efTective 

on or after that date. 
Under Gen. St. 1919, c. 355, a domestic business corporation is subject to tax with 

respect to the doing of business, and not with respect to the privilege of doing 

business, as under St. 1909, c. 490, pt. Ill, §§ 39-41. 

You state that a domestic corporation sold all its assets on the to the Com- 
first day of December, 1919, and since that date has carried on no corporations 

, . . , , . , and Taxation. 

business whatever. You request my opinion whether said cor- 1921 

poration is subject to taxation under the provisions of Gen. St. 

1919, c. 355, and St. 1920, c. 550, as amended. 

Said chapter 550 re-enacted for one year sections 1 and 2 and 
4 to 9, inclusive, of chapter 255 of the General Acts of 1918. The 
latter chapter imposed a tax upon corporations incorporated under 
the laws of this Commonwealth and doing business for profit. On 
May 27, 1920, the date when said chapter 550 was enacted, the 
corporation was not ''doing business for profit" and therefore was 
not comprehended by the terms of the act, and did not become 
taxable thereunder (see Attorney-General v. Boston & Albany R.R. 
Co., 233 Mass. 460). 

Gen. St. 1919, c. 355, became efi^ective on Jan. 1, 1920 (§ 33). 
On that date the corporation in question was in existence, but was 
not carrying on any business whatever. The question is squarely 
raised, therefore, whether a domestic corporation which has not 



94 OPINIONS OF THE ATTORNEY-GENERAL. 

been dissolved but which has "gone out of business" is subject to 
the excise tax provided for by chapter 355. 

In my communication of Feb. 3, 1921, I expressed the opinion 
that a corporation doing business at any time during the year 
1920, even though it sold all its assets prior to April 1 of that 
year, was subject to taxation under chapter 355. The question 
now presented, however, arises in respect to a corporation that 
was carrying on no business whatever at the time said chapter 
became effective, and, moreover, has not done business at any 
time during the period in which said chapter has been in effect. 

Section 2 provides, in part: — 

Except as ls otherwise provided in this section, every domestic busi- 
ness corporation shall be subject to pay annually, with respect to the 
carrying on or doing of business by it, an excise tax equal to the sum of 
the following : — 

(1) An amount equal to five dollars per thousand upon the value of 
its corporate excess. 

(2) An amount equal to two and one half per cent of that part of its 
net income as hereinafter defined, which is derived from business carried 
on within this commonwealth. 

The tax thus provided for is computed in part upon corporate 
excess and in part upon income. So far as it is computed upon 
corporate excess, it was derived from the tax provided for by St. 
1909, c. 490, pt. Ill, §§ 39-41, which was imposed upon "every 
corporation organized under the general or special laws of the 
commonwealth for purposes of business or profit. ..." As pro- 
vided for by chapter 490, it was a franchise tax, — a tax upon the 
'privilege of doing business; if, after completing its organization, a 
corporation did not begin business, or if, having begun business, 
it later sold its assets and transacted no business whatever there- 
after, nevertheless it was liable to taxation, for unless and until 
it was dissolved, it enjoyed the privilege of doing business as a 
corporation. Attorney-General v. Massachusetts Pipe Line Gas 
Co., 179 Mass. 15. 

The tax provided for by chapter 355 contains a new element, in 
that it is measured in part by net income. It also differs from 



J. WESTON ALLEN, ATTORNEY-GENERAL. 95 

the former tax in the fact that by its terms it is imposed "with 
respect to the carrying on or doing of business by it." The words 
quoted are not the equivalent of the words used in the former act, 
— " organized under the general or special laws of the common- 
wealth for 'purposes of business or profit." Under the former act, 
the corporation was taxed in respect to the privilege of doing busi- 
ness; under the present act, it is taxed in respect to the exercise 
of the privilege. 

In Attorney-General v. Boston & Albany R.R. Co., 233 Mass. 
460, the question was whether a railroad corporation which had 
leased its lines to another corporation and confined its activities 
to the receiving of rent and the distribution of the same to its 
stockholders was "doing business for profit," within the meaning 
of Gen. St. 1918, c. 255, § 1. The court held that it was not, and, 
therefore, was not taxable. A fortiori, if the corporation had been 
engaged in no activities whatever, the court would have held that 
it was not taxable. The words "doing business for profit" have 
substantially the same meaning as "the carrying on or doing of 
business" when applied to a business corporation. 

The meaning of the words "engaged in business," as used in 
the corporation tax law of the United States (36 St. at Large, 112, 
117), has frequently been construed bj^ the Supreme Court of the 
United States-. In the following cases it was held that the cor- 
poration in question was not "engaged in business," and there- 
fore was not subject to the corporation tax: Zonne v. Minneapolis 
Syndicate, 220 U. S. 187; McCoach v. Minehill & Schuylkill Haven 
R.R., 228 U. S. 295; Ufiited States v. Emery, Bird, Thayer Realty 
Co., 237 U. S. 28. In Flint v. Stone Tracy Co., 220 U. S. 107, 145, 
the court said : — 

It is therefore apparent, giving all the words of the statute effect, that 
the tax is imposed not upon the franchises of the corporation irrespective 
of their use in business, nor upon the property of the corporation, but 
upon the doing of corporate or insurance business and with respect to 
the carrying on thereof. 

The tax provided for by Gen. St. 1919, c. 355, is of the same 
nature. 



96 



OPINIONS OF THE ATTORNEY-GENERAL. 



For the reasons stated, and in view of the authorities referred 
to, I am of opinion that a corporation which has carried on no 
business whatever since Dec. 31, 1919, is not subject to taxation 
under the provisions of said chapter. 



To the Com- 
missioner 
of Banks. 

1921 
March 21. 



Trust Companies — Federal Reserve System — Power of 
Commissioner to authorize a Boston Trust Company 
WHICH IS A Member of the Federal Reserve System 
TO ACT AS A Reserve Agent for Other Trust Com- 
panies. 

Acting under the power conferred by G. L., c. 172, § 75, the Commissioner of 
Banks may authorize a Boston trust company which is a member of the 
Federal reserve system to act as reserve agent for other trust companies. 

Under G. L., c. 172, § 81, a trust company which becomes a member of the Federal 
reserve system is governed as to the management of its reserve by the 
Reserve Act and not by G. L., c. 172, § 75. 

You have requested my opinion on the following case : — 

A certain trust company in Boston, which is a member of the 
Federal reserve system, has applied to the Commissioner of Banks 
for permission to act as reserve agent for other trust companies 
under G. L., c. 172, § 75. 

You ask whether or not you can authorize said trust company 
to act as reserve agent. 

G. L., c. 172, § 75, provides: — 

The commissioner may authorize any trust company in Boston to 
act as reserve agent for trust companies doing business in the common- 
wealth; provided, that a trust company shall not keep any part of its 
reserve in a trust company so authorized to act as reserve agent with- 
out first obtaining the wTitten consent of the commissioner. Not less 
than one half of the reserve of such trust company acting as reserve 
agent shall consist of lawful money of the United States, gold certifi- 
cates, silver certificates or notes and bills issued by any lawfully or- 
ganized national banking association, and the remainder of such reserve 
may consist of balances, payable on demand, due from any trust com- 
pany in Boston authorized to act as reserve agent as herein provided, 
or from any national banking association doing business either in this 
commonwealth or in the cities of New York, Philadelphia, Chicago or 
Albany. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 97 

Section 81 provides: — 

A trust company which becomes a stockholder in a federal reserve 
bank within the federal reserve district where such tru.st company is 
situated, and while such trust company continues as a member bank 
under the United States "Federal Reserve Act" approved December 
twenty-third, nineteen hundred and thirteen, or any acts in amendment 
thereof, shall be subject to the provisions of said "Federal Reserve Act" 
and any amendments thereof relative to bank reserves, in substitution 
for the requirements of sections seventy-three to seventy-five, inclusive. 

As the trust company under consideration has become a mem- 
ber of the Federal Reserve Bank in Boston, the extent of its 
reserve and the manner in which such reserve shall be held are 
governed by the Federal Reserve Act, 38 Stat., pp. 251, 262, c. 6, 
and amendments thereof, and not by G. L., c. 172, §§ 73 to 75, 
inclusive. The requirements as to reserve of said Federal Re- 
serve Act, as amended to April 13, 1920, seem to be somewhat 
less stringent in certain respects than those of said sections 73 
to 75, inclusive, of our State act. The precise question, therefore, 
is whether the Commissioner of Banks may, under the first 
sentence of said section 75, authorize a trust company in Boston 
to act as reserve agent for other trust companies, although such 
Boston trust company, if so designated, need not comply with 
the "requirements" of the second sentence of said section 75. 

In my opinion, such designation may be made. Section 81 
provides that any trust company which joins the Federal reserve 
system "shall" be governed as to reserve by the provisions of 
the Federal Reserve Act, "in substitution for the requirements 
of" said sections 73 to 75, inclusive. That which is so substi- 
tuted must be deemed to be the equivalent in that respect of said 
sections 73 to 75, irrespective of any apparent differences between 
the former and the latter. Such substitution of an equivalent 
for the "requirements" of said sections 73 to 75 as to reserve 
cannot be held to narrow the power of the Commissioner of Banks 
to appoint "any trust company in Boston" as a reserve agent for 
other trust companies. Said section 81 makes it clear that a 
trust company may join the Federal reserve system and still 



98 



OPINIONS OF THE ATTORNEY-GENERAL. 



retain its State charter. A construction of the State act which 
would in effect require a Boston trust company to choose between 
membership in the Federal reserve system and being appointed 
a reserve agent for other trust companies would, to some extent 
at least, impose upon such a trust company the very election from 
w^hich said section 81 was apparently intended to relieve it. I 
therefore advise you that you have power to make the designation 
in question. The expediency thereof is for you to determine in 
each case, in the exercise of a sound discretion. 



To the Com- 
mittee on 
Mercantile 
Affairs. 
1921 
March 24. 



Constitutional Law — Federal Constitution — Contract 
Clause — Repeal of Corporate Charter for Misuser 
WHERE NO Power to amend or repeal was reserved. 

W^here a corporate charter was granted without reserving any right to alter, amend 
or repeal the same, the Legislature cannot acquire power to repeal such 
charter by adding the words "for misuser" to the repealing clause. 

If a ground for forfeiting an irrepealable corporate charter exists, such forfeiture 
must be established by a competent court. 

You inquire whether Senate Bill No. 190, entitled, "An Act to 
repeal the charter and all corporate powers granted to the Second 
Society of Universalists in the Town of Boston," would be con- 
stitutional if the section which purports to repeal the charter were 
amended by adding the words "for misuser" at the end thereof. 

On Feb. 28, 1921 (VI Op. Atty.-Gen. 58) I advised you that 
the Legislature did not reserve and does not possess power to 
alter, amend or repeal this charter without the consent of the 
corporation. The Legislature cannot acquire power to repeal this 
charter by declaring that the corporation has misused its powers. 
If a ground of forfeiture exists, it must be established in a suit 
brought by the Commonwealth before a competent tribunal. 
Folger v. Columbian his. Co., 99 Mass. 267, 274; Boston Glass 
Mfg. Co. V. Laiigdon, 24 Pick. 49, 52; Heard v. Talbot, 7 Gray, 
113, 119. A different question would be presented if the Legisla- 
ture had reserved a power to repeal this charter for a default upon 
the part of the corporation, and so possessed the incidental power 



J. WESTON ALLEN, ATTORNEY-GENERAL. 99 

to determine whether the condition precedent to such repeal had 
occurred. Crease v. Babcock, 23 Pick. 334. I therefore answer 
your question in the negative. 



Penal Institution — Inmate afflicted w ith Certain Dis- 
eases — Treatment and Discharge. 

The head of a penal institution is justified in holding an inmate whose sentence 
has expired, provided said inmate is afflicted with one or more of the diseases 
referred to in G. L., c. Ill, § 121. 

Such inmates may be isolated from the public, whose health might be endangered 
by contact with them, but not being bound by prison rules intended to gov- 
ern the conduct of prisoners under sentence for crime, they may not be pun- 
ished for violation of such rules. 

The provisions of G. L., c. 268, § 16, relating to escaped prisoners, refer solely to 
persons under sentence, and have no application to inmates held under G. L., 
c. Ill, § 121. 

You direct my attention to G. L., c. Ill, § 121, which provides TotheCom- 

, . ^» .... , , .. „,. missioner of 

that an inmate oi a penal institution who, at the expiration or his Correction. 
sentence, is afflicted with certain diseases, shall be retained in said M arch 2 4. 
institution until symptoms of disease shall have disappeared and 
his discharge will not endanger the public health. 

In respect to this statute you request my opinion upon three 
questions : — 

1. Is the head of a penal institution justified in holding an inmate 
whose sentence has expired, provided said inmate is afflicted with one 
or more of the diseases referred to in the statute? 

2. If said inmate is so held, may he be punished by sohtary confine- 
ment or otherwise for infraction of the prison rules? 

3. If an inmate so held escapes from the institution, is he liable to 
prosecution under the "escape law"? 

The section in question provides : — 

An inmate of a public charitable institution or a prisoner in a penal 
institution who is afflicted with syphilis, gonorrhoea or pulmonary tu- 
berculosis shall be forthwith placed under medical treatment, and if, in 
the opinion of the attending physician, it is necessary, he shall be iso- 
lated until danger of contagion has passed or the physician determines 
his isolation unnecessary. If at the expiration of his sentence he is af- 



100 OPINIONS OF THE ATTORNEY-GENERAL. 

flicted with syphilis, gonorrhoea or puhnonary tuberculosis in its con- 
tagious or infectious symptoms, or if, in the opinion of the attending 
physician of the institution or of such physician as the authorities thereof 
may consult, his discharge would be dangerous to public health, he shall 
be placed under medical treatment and cared for as above provided in 
the institution where he has been confined until, in the opinion of the 
attending physician, the said symptoms have disappeared and his dis- 
charge will not endanger the public health. The expense of his support, 
not exceeding three dollars and fifty cents a week, shall be paid by the 
town where he has a settlement, after notice of the expiration of his 
sentence and of his condition to the overseers of the poor thereof, or, if 
he is a state pauper, to the department of public welfare. 

I proceed to discuss the three questions raised by your request 
in the order in which I have stated them. 

1. A citizen may not be committed to prison or held therein as 
a criminal unless he has been duly convicted of crime and has 
been sentenced to confinement by a court of competent jurisdic- 
tion. He may not be imprisoned by legislative or executive fiat, 
nor may his imprisonment be continued by legislative or executive 
fiat after the expiration of his sentence. These propositions I take 
to be axiomatic. 

But while the Legislature is under a duty not to interfere arbi- 
trarily with the liberty of the individual, it is also under a duty to 
provide for safeguarding the public health. Personal liberty leaves 
oft' where public safety begins. In consequence, the State may 
compel vaccination (G. L., c. Ill, §§ 181-183), and may make 
quarantine regulations and provide for the compulsory isolation 
of persons afflicted with infectious diseases (G. L., c. Ill, §§ 176- 
180). See Commoinvealth v. Pear, 183 Mass. 242; Jacobson v. 
Massachusetts, 197 U. S. 11. 

The statute above quoted is designed to protect the public by 
providing that certain persons whose liberty would be a menace 
to the public health shall not be permitted to mingle with, and 
possibly infect, healthy members of the community. It is a 
quarantine statute. It provides in effect that a person previously 
restrained of his liberty because guilty of crime shall, at the expira- 
tion of his sentence, continue to be restrained and kept under 



J. WESTON ALLEN, ATTORNEY-GENERAL. 101 

treatment until the danger of infecting the pubhc shall have dis- 
appeared. So construed, the act is constitutional and valid. 

I am of opinion that your first question should be answered 
affirmatively. 

2. Section 121 was not intended to provide punishment for 
persons afflicted with disease, nor was it intended to extend or 
prolong expired sentences. As already indicated, it is a quaran- 
tine statute. In consequence, while diseased persons may be 
isolated and restrained of their liberty pursuant to its provisions, 
after expiration of their sentences they are not to be dealt with as 
convicted criminals still under sentence. In the eyes of the law, 
they are invalids rather than criminals. They may be kept isolated 
from the public, whose health would be endangered by contact 
with them, but they are not bound by prison rules intended to 
govern the conduct of persons under sentence for crime. If, 
therefore, they violate such rules, they may not be punished for 
such violation either by solitary confinement or by other methods 
designed to effectuate the discipline and control of persons serving 
sentences for crime. (See G. L., c. 137, §§ 39-47.) The correctness 
of this conclusion appears from the section itself, which provides 
that a diseased person whose sentence has expired " shall be placed 
under medical treatment and cared for as above provided in the 
institution where he has been confined," and which provides also 
for the support of such persons by the towns wherein they have 
settlements. 

I answer your second question in the negative. 

3. By the term "escape law" I assume that you have reference 
to G. L., c. 268, § 16, which provides: — 

A prisoner who escapes or attempts to escape from any penal insti- 
tution, or from land appurtenant thereto, or from the custody of any 
officer thereof or while being conveyed to or from any such institution, 
may be pursued and recaptured and shall be punished by imprisonment 
in the institution to which he was originally sentenced for a term not 
exceeding five years. If the prisoner has escaped or attempted to escape 
from the prison camp and hospital, the expense of supporting him shall 
be paid by the institution to which he is sentenced and the expense of 
committing him shall be paid by the prison camp and hospital. In im- 



102 OPINIONS OF THE ATTORNEY-GENERAL. 

posing sentence under this section the court shall observe the provisions 
of law regarding sentences and commitments to the various penal in- 
stitutions. 

This section, by its terms, has reference to "a prisoner," which 
term as used in the section is equivalent to the phrase "convict 
under sentence." It is intended to prevent escapes and attempts 
to escape by persons serving sentences for crime. It clearly has no 
application to persons restrained of their liberty by virtue of a 
quarantine regulation contained in a statute. The Legislature 
cannot be presumed to have intended to establish a sentence of 
five years' imprisonment as a punishment for escape from quaran- 
tine. The section is penal, and is, therefore, to be construed 
strictly. So construed, it has application only to persons under 
sentence. 

I answer your third question in the negative. 

4. A question may be raised whether, since the statute provides 
for the quarantine of ex-prisoners only and not of all persons in 
the Commonwealth afflicted with the diseases referred to in the 
statute, the latter may not be invalid as an exercise of the police 
power, on the ground that it is unduly discriminatory. I have 
not been unmindful of this limitation in my answer to your first 
question. However, the question of what measures are best cal- 
culated to safeguard the public interest, and especially the public 
health, is, in the first instance, for the consideration of the Legis- 
lature, and every intendment is to be made in favor of the con- 
stitutionality of a statute enacted by the General Court after full 
consideration and discussion by them of the questions of law and 
public policy involved. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 103 



Poll Taxes — Exemption — Military or Naval Service. 

The exemption from the payment of poll taxes, provided by Gen. St. 1918, c. 49, 
§ 1, as amended by Gen. St. 1919, c. 9, is still in effect, regardless of Public 
Resolution No. 64, 66th Congress, effective March 3, 1921, entitled "A Reso- 
lution declaring certain acts of Congress, joint resolutions and proclamations 
shall be construed as if the war had ended and the present or existing emergency 
expired." 

Gen. St. 1918, c. 49, § 1, as amended by Gen. St. 1919, c. 9, ^i^f^S-T 

nvr^-irirlfic- Corporations 

prOViaeb . ^n^ Taxation. 



Inhabitants of this commonwealth who were engaged in the miUtary 
or naval service of the United States in the present war before the pas- 
sage of this act, and those who hereafter engage in said service during said 
war, shall be assessed for, but shall be exempt from, the payment of all 
poll taxes assessed for the year nineteen hundred and seventeen and 
during the continuance of the war, and thereafter up to and including 
the year of their discharge. 

You direct my attention to Public Resolution No. 64, 66th 
Congress, effective March 3, 1921, entitled "A Resolution declar- 
ing certain acts of Congress, joint resolutions and proclamations 
shall be construed as if the war had ended and the present or exist- 
ing emergency expired," and you request my opinion whether the 
effect of said resolution is to terminate the exemption from pay- 
ment of poll taxes provided for by Gen. St. 1918, c. 49, as amended. 

In an opinion rendered to the Commissioner of Corporations 
and Taxation, on July 8, 1920 (V Op. Atty.-Gen. 601), I said: — 

Gen. St. 1918, c. 49, as amended by Gen. St. 1919, c. 9, applies "dur- 
ing the continuance of the war." The latter act was approved on Feb. 17, 
1919, over three months subsequent to the armistice. The phrase "dur- 
ing the continuance of the war" cannot, therefore, be construed to mean 
continuance of hostilities. It must refer to the legal termination of the 
war. A state of war legally continues until terminated by a treaty of 
peace or by a proclamation of peace. Hamilton v. Kentucky Distilleries 
Co., 251 U. S. 146, 161 ; Hijo v. U7iited States, 194 U. S., 315, 323. Neither 
of these events has as yet occurred. It follows that Gen. St. 1919, c. 9, 
was still in force on April 1, 1920, and operated to exempt those within 
its terms from the S5 poll tax imposed under Gen. St. 1919, c. 283, § 10. 
To avoid misconception, I may add that a discharge from the ser\ace 



1921 
March 24. 



104 OPINIONS OF THE ATTORNEY-GENERAL. 

prior to April 1, 1920, does not affect the operation of the act. The clause 
"and thereafter up to and including the year of their discharge" refers to 
a discharge subsequent to the termination of the war. 

Unless, therefore, said resolution of Congress terminated the 
war with the Central Powers, the poll tax exemption above re- 
ferred to is still in effect. 

Whether a state of war may be terminated by congressional 
resolution is a question that I am not at present called upon to 
answer, for I am of opinion that the resolution above referred to 
was not intended to have that effect; indeed, the expression "as 
if the war had ended," which is included in the title of the resolu- 
tion, constitutes legislative recognition of the continued existence 
of a state of war. Certain resolutions and statutes of Congress, 
and also certain proclamations, were made necessary and were 
adopted to meet emergencies created by actual hostilities, and 
similarly there was need for emergency legislation and for procla- 
mations by the Executive to meet the conditions which attended 
the demobiUzation of the agencies and instrumentalities incident 
to the active prosecution of war. The emergency having been met, 
Congress has determined that certain legislative provisions incident 
to it are no longer necessary or desirable, and has therefore re- 
solved that they shall be construed in the light of the changed 
conditions. The resolution enacted was not by any means the 
equivalent of the so-called "Knox Resolution," introduced in the 
United States Senate last year, and was not intended to operate 
as a termination of the war. 

I am of opinion that the exemption provided for by Gen. St. 
1918, c, 49, as amended by Gen. St. 1919, c. 9, is still in effect. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 105 



Salaries of Officers and Employees of the Commonwealth 
— Employees of the Massachusetts Agricultural Col- 
lege PAID WHOLLY OR IN PaRT FROM FEDERAL FuNDS — 

Supervisor of Administration. 

Salaries of employees of the Massachusetts Agricultural College, paid from State 
appropriations, must be fixed by the trustees of the college, under G. L., 
c. 75, § 13, in accordance with the classification and specifications of the 
Supervisor of Administration, under G. L., c. 30, § 46, and hence are subject 
to his supervision and approval. 

Employees who are paid wholly or in part from Federal funds, under the Smith- 
Lever act of May 8, 1914, chapter 79, are nevertheless State employees, and 
their salaries are subject to the supervision and approval of the Supervisor, 
since the funds are paid to the State and the salaries are paid by the State. 

Employees who receive salaries from so-called "States Relations Service" funds, 
coming directly from the Federal Department of Agriculture, are joint em- 
ployees of the State and Federal governments, and their salaries, so far as 
they are received from the Federal government, are not subject to the super- 
vision and approval of the Supervisor. 

You have asked ray opinion with reference to the riglit of tlie To the Com- 
Supervisor of Administration to fix salaries of employees of the of Education. 

. 1921 

Massachusetts Agricultural College in cases where such employees March 25. 
are paid wholly or in part from Federal funds. Your question 
relates more specifically to salaries of employees in the Department 
of Extension Ser\-ice, paid from funds paid by the Federal govern- 
ment, under the so-called Smith-Lever act, to the Treasurer and 
Receiver-General of the Commonwealth, and from so-called 
"States Relations Service" funds paid by the United States 
Department of Agriculture directly to the employees of the De- 
partment of Extension Service. 

The Smith-Lever act of May 8, 1914, chapter 79, provided for 
agricultural extension work to be carried on by agricultural 
colleges in co-operation with the United States Department of 
Agriculture. The colleges to be benefited were to be selected by 
agreement with the Secretary of Agriculture, and the act required 
that before funds should become available to any college, plans 
should be submitted by the proper officials of such college and 
approved by the Secretary of Agriculture. It appropriated sums, 
increasing annually, to be paid to each State which should by its 
Legislature assent to the provisions of the act. It provided that 



106 OPINIONS OF THE ATTORNEY-GENERAL. 

the sums appropriated for extension work should be paid to the 
State treasurer or other officer authorized to receive the same. 

This act was accepted by the Commonwealth by St. 1914, 
c. 721, and the Treasurer and Receiver-General was designated to 
receive the appropriations annually, to be applied by him under 
and for the purposes of the act, and the Massachusetts Agricul- 
tural College was authorized to receive said grants of money. 

It has been held, with respect to similar provisions in an earlier 
act making appropriations to agricultural colleges, that the grant 
so made was to the State and not to any institution established 
by the State, to be held for the purposes stated in the act. Wyo- 
ming, ex rel. Wyo7ning Agricultural College v. Irvine, 206 U. S. 
278; Massachusetts Agricultural College v. Marden, 156 Mass. 
150, 156. 

Following the act of 1914 and the State acceptance thereof, 
a memorandum of understanding, so called, was executed between 
the Massachusetts Agricultural College and the United States 
Department of Agriculture regarding extension work in agriculture 
and home economics in the State of Massachusetts. By this 
understanding the college agreed to organize and maintain a 
division for the conduct of extension work in agriculture and home 
economics, to administer through such extension division any and 
all funds received for such work, and to co-operate with the 
Department of Agriculture in such extension work. The Depart- 
ment of Agriculture agreed to organize a States Relations Service, 
and to conduct, in co-operation with the college, all forms of ex- 
tension work in agriculture and home economics which the de- 
partment was authorized by Congress to conduct in the State of 
Massachusetts. It was mutually agreed that such co-operative 
extension work, involving the use of direct congressional appro- 
priations, should be planned under joint supervision; that all 
agents appointed for such co-operative extension work, involving 
the use of direct congressional appropriations, should be joint 
representatives of the college and the department unless otherwise 
provided in the project agreements; and that the plans for the 
use of the Smith-Lever funds, except so far as those funds should 
be employed in co-operative projects involving the use of depart- 



J. WESTON ALLEN, ATTORNEY-GENERAL. 107 

ment funds, should be made by the extension division of the college, 
but should be subject to the approval of the Secretary of Agri- 
culture, in accordance with the terms of the Smith-Lever act, 
and when so approved should be executed by the extension division 
of said college. 

Thereafter a States Relations Service was organized in the 
Department of Agriculture, by which appropriations received 
from Congress are transmitted directly to the employees of the 
extension division. Smith-Lever funds, on the other hand, are 
transmitted through the Treasurer and Receiver-General. 

The Massachusetts Agricultural College was incorporated by 
St. 1863, c. 220. By Gen. St. 1918, c. 262, this corporation was 
dissolved, and it was provided that thereafter the college should 
be maintained as a State institution under the same name. 

Section 5 of that act is as follows : — 

All emploj'ees of the institution shall be considered state employees, 
but shall not be subject to the civil service laws and regulations. 

G. L., c. 15, § 19, provides that the trustees of the Massachusetts 
Agricultural College shall serve in the Department of Education. 
G. L., c. 75, § 13, is, in part, as follows: — 

The trustees shall elect the president, necessary professors, tutors, 
instructors and other officers of the college and fix their salaries and 
define their duties and tenure of office. 

Similar provisions may be found in the General Laws authoriz- 
ing the heads of the various departments and other institutions 
to fix the salaries of employees under their direction. 

G. L., c. 30, §§ 45 to 50, inclusive, provide for the classification 
of "all appointive offices and positions in the government of the 
Commonwealth, except those in the judicial branch and those in 
the legislative branch other than the additional clerical and other 
assistants in the sergeant-at-arms' office." Section 46 is, in part, 
as follows : — 

The salaries of all officers and employees holding offices and positions 
required to be classified under said section, except those whose salaries 



108 OPINIONS OF THE ATTORNEY-GENERAL. 

are now or shall be otherwise regulated by law and those whose salaries 
are required by law to be fixed subject to the approval of the governor 
and council, shall be fixed in accordance with such classification and 
specifications. 

In an opinion rendered by me to the Supervisor of Adminis- 
tration, under date of May 12, 1920 (V Op. Atty.-Gen. 552), I 
advised him that the phrase " salaries . . . regulated by statute," 
in Gen. St. 1919, c. 320, § 1, and now appearing in G. L., c. 30, 
§ 46, as "salaries . . . regulated by law," meant "salaries fixed 
by law either in some definite sum or by a sliding scale which is 
automatically effective." 

I am of opinion that the salaries of employees of the Massa- 
chusetts Agricultural College paid in the ordinary way from State 
appropriations, while they must be fixed by the trustees, under 
G. L., c. 75, § 13, must also be fixed in accordance with the classi- 
fication and specifications of the Supervisor of Administration, 
under G. L., c. 30, § 46, and hence are subject to his supervision 
and approval. 

It remains to consider whether the situation is altered in cases 
where salaries are paid wholly or in part from Smith-Lever funds 
or States Relations Service funds. 

Smith-Lever funds are paid to the State, to be applied for the 
purposes stated in the act, namely, for co-operative agricultural 
extension work between the agricultural colleges and the United 
States Department of Agriculture. The act provides that the 
work shall be carried on in such manner as may be mutually 
agreed upon by the Secretary of Agriculture and the colleges re- 
ceiving the benefits of the act, and requires that plans shall be 
submitted by the proper officials of each college and approved 
by the Secretary of Agriculture. According to the memorandum 
of understanding between the Massachusetts Agricultural College 
and the Secretary of Agriculture, plans for the use of the Smith- 
Lever funds shall be made by the extension division of the college, 
but shall be subject to the approval of the Secretary of Agricul- 
ture, in accordance with the terms of the act, and when so ap- 
proved shall be executed by the extension division of the college. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 109 

There may be some ambiguity in the use of the word "plans," 
as used in the act and in the memorandum of understanding, but 
the meaning of the word in its practical application is shown by 
the form of plan which has been annually submitted and approved. 
This form of plan for each fiscal year for " Co-operative Extension 
Work in Agriculture and Home Economics" is said to be sub- 
mitted "in accordance with the act of Congress dated May 8, 
1914," — the Smith-Lever act. It contains a list of projects, a 
budget statement showing assignment of funds to projects, and 
so-called personal statements showing the funds from which the 
salaries are paid of all employees in the extension service. In 
practice, therefore, the payment of salaries from Smith-Lever 
funds has been submitted as a part of the annual plans for the 
approval of the Secretary of Agriculture. 

Employees of the extension division whose salaries are paid 
wholly or in part from Smith-Lever funds, while the payment of 
those salaries is thus subject to the approval of the Secretary of 
Agriculture, are, in my opinion, State employees, whose salaries 
are subject to the supervision and approval of the Supervisor of 
Administration. He will bear in mind, no doubt, that Smith-Lever 
funds are Federal funds, that they are paid to employees whose 
work is carried on by the college in co-operation with the Depart- 
ment of Agriculture, and that the Commonwealth has accepted the 
benefits of the act with that understanding. 

States Relations Service funds are paid by the Department of 
Agriculture directly, as salaries, to employees of the extension 
division. These payments also are shown in the annual plans 
above referred to. 

By the memorandum of understanding it was agreed that agents 
appointed for co-operative extension work involving the use of 
direct congressional appropriations to the Department of Agri- 
culture should be joint representatives of the college and of the 
department unless otherwise expressly provided in the project 
agreements, and this agreement must be recognized as binding. 
Gen. St. 1918, c. 262, dissolving the Massachusetts Agricultural 
College, expressly provided that the Commonwealth should be 
subject to the legal obligations of the college. There is no pro- 



110 OPINIONS OF THE ATTORNEY-GENERAL. 

vision in the laws of the Commonwealth reqim-ing employees of 
State institutions to give their whole time to the service of the 
Commonwealth, or prohibiting them from receiving salaries from 
other sources. Cf. Const, pt. 2nd, c. VI, art. II; G. L., c. 30, 
§§ 21, 2.3. Employees of the extension division, receiving pay- 
ments for salaries from States Relations Service funds, must 
therefore be regarded, unless other provision is made in some 
project agreement, as joint employees of the State and Federal 
governments. 

The word "salaries" as used in G. L., c. 30, § 46, in my opinion, 
signifies salaries paid by the Commonwealth. There would be no 
object in providing that salaries of employees received from other 
sources should be under the supervision of the Supervisor of 
Administration. 

I am therefore of the opinion that the Supervisor has no right 
to disapprove the salaries of employees in the Department of Ex- 
tension Service in so far as those salaries are paid by agreement 
between the college and the Department of Agriculture out of 
States Relations Service funds. He has authority to supervise 
salaries paid out of other funds to employees who receive also 
States Relations Service funds. In so doing he should bear in mind 
that such employees are joint employees of the State and Federal 
governments, and that they are employed for work which the 
Commonwealth has agreed shall be carried on in co-operation 
with the Department of Agriculture. 

I am informed that the statements and estimates submitted by 
the trustees to the Supervisor of Administration, as required by 
G. L., c. 39, § 3, do not show specifically what salaries or parts 
thereof are paid from States Relations Service funds. In that 
respect the practice should be changed so that the Supervisor may 
have detailed information as to all payments of salaries either from 
State funds or from Smith-Lever funds. 



J. WESTON ALLEN, ATTORNEY-GENERAL. Ill 



Licensed Boxing Matches — Surrender of License — 
Refund of License Fee. 

A license issued under the provisions of G. L., n. 147, §§ 32-51, does not give rise 
to a contract between the Commonwealth and the holder. If the licensee 
prefers not to exercise the privilege, he may forbear to do so, but there is no 
legislative authority to refund all or a part of the fee paid therefor. 

You state that under the provisions of G. L., c. 147, §§ 32-51, a TotheCom- 

T • 1 T 1 rk 1 /-wr»-i 1 1 r-i -r» • r-^ • missioner of 

ucense was issued on Jan. 12, 1921, by the btate Boxing Commis- Public safety. 
sion to the Fenway Athletic Association, Inc. Said Ucense au- March 2 9. 
thorized the holder thereof to conduct boxing exhibitions in the 
city of Boston up to and including Dec. 31, 192L Under the regu- 
lations of the Commission, the holder paid $800 for the license. 
One exhibition has been held under it, and the holder, or rather, 
one of the officials of said association who personally advanced said 
sum of $800, desires to surrender the license and have refunded 
to him all or a part of the license fee. You desire my opinion 
whether the commission may accede to this request. 

The pertinent statutory provisions are as follows : — 

In section 32 it is provided : — 

Applications for the license shall be accompanied by such fee, not less 
than twenty-five nor more than eight hundred dollars, as the commission 
may establish. . . . 

Section 33 provides : — 

The commission may, subject to the provisions of sections thirty- 
two to forty-seven, inclusive, issue licenses to conduct boxing or spar- 
ring matches and exhibitions, which shall expire on December thirty- 
first of the year of issue. 

Section 42 provides : — 

Any license may be revoked or suspended by the commission for a 
violation of any provision of sections thirty-two to forty-seven, inclusive, 
or of any other law of the commonwealth or of any rule or regulation 
adopted by the commission or whenever the licensee has, in the judgment 
of the commission, been guilty of any act or offence detrimental to the 
public interest. 



112 OPINIONS OF THE ATTORNEY-GENERAL. 

It appears from the sections above quoted that the Legislature 
lias provided for the issue of licenses, for their expiration and for 
their revocation. But there is no provision whatever for the 
voluntary surrender of a license and the return of all or part of the 
fee. If the Legislature had intended such refunds to be made, I 
am of opinion that it would have made suitable provision therefor. 

A license is the grant of a privilege. If a fee is exacted, the fee 
is in the nature of an excise. Boston v. Schaffer, 9 Pick. 415. The 
license does not give rise to a contract between the Commonwealth 
and the holder. Calder v. Kurhy, 5 Gray, 597; Commonwealth v. 
Brennan, 103 Mass. 70. When the license is issued, the licensee 
has received the privilege in exchange for which an excise has been 
exacted. If he prefers not to exercise the privilege, he may for- 
bear to do so, but the fact remains that he may, if he desires, 
exercise it at any time before the license expires. See Attorney- 
General V. Mass. Pipe Line Gas Co., 179 ]\Iass. 15. 

I am of opinion that there is no legislative authority to refund 
all or a part of the fee paid for a license to conduct boxing exhibi- 
tions. 

Constitutional Law — Taxation — Appropriations — Public 

Purpose. 

The Legislature has no power to authorize cities and towns to expend money to 
procure headquarters for a camp of the United Spanish War Veterans, since 
such expenditure is not for a public purpose. 



To the 
Governor. 



You request my opinion upon the constitutionality of a bill 
Mard!.3o. (Senate No. 318) entitled, "An Act authorizing cities and towns 

to provide quarters for camps of the United Spanish AYar 
Veterans," which provides: — 

Chapter forty of the General Laws is hereby amended by inserting 
after section nine the following new section: — Section 9A. A city or 
town may, for the purpose of providing suitable headquarters for a camp 
for the United Spanish War Veterans, lease for a period not exceeding 
five years a building or part of a building, which shall be under the direc- 
tion and control of such camp subject to regulations made in cities by 
the mayor with the approval of the council and in towns by vote of the 
town, and for such purpose may annually appropriate a sum not exceed- 
ing in any one year, one fiftieth of one per cent of its valuation. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 113 

I assume that because of the case of Kingman v. Brockton, 153 
Mass. 255, you doubt the constitutionality of the bill now before 
you. I am of opinion that this doubt is well founded, and that 
the present bill is governed by that decision. 

In Kingman v. Brockton, supra, ten taxpayers of Brockton 
brought a bill in equity to restrain the city from carrj'ing out an 
order appropriating (pursuant to a statute) S40,000 for the pur- 
pose of erecting "a memorial hall and public library building, 
... a portion of said building to be for the use of Fletcher Webster 
Post G. A. R. No. 13, so long as it shall exist as an organization." 
The court enjoined the expenditure of public funds in order to 
provide quarters for the post, and, in holding that such expendi- 
ture was not for a public purpose, said : — 

The general rule is well established, and is illustrated by a great variety 
of decided cases, that taxation must be limited to public purposes. It 
was accordingly held in the recent case of Mead v. Acton, 139 Mass. 
341, that a statute authorizing a town to pay bounties to soldiers who 
re-enlisted in 1864 and were credited to the town was unconstitutional, 
the purpose being to benefit individuals and not the public. The Fletcher 
Webster Post G. A. R. No. 13 is not a public bodj^ but it is an associa- 
tion of individuals. To support and maintain such an association cannot 
be deemed to be a public purpose. If a city or town may be authorized 
to erect a building to be devoted in part to the use of such an association 
so long as it shall exist as an organization, it is not easy to see why it 
may not be authorized to erect one exclusively for that purpose, and to 
provide the necessary furniture, and, indeed, to bear all the expenses of 
maintaining the association. If a city or town may be authorized to 
give such assistance to a body of persons who have been soldiers or sailors 
in the war, the same principle would seem to extend so far as to include 
those who have rendered other great and meritorious services, and thus 
are entitled to public gratitude, such, for example, as societies of dis- 
abled or past firemen or policemen. If once the principle is adopted that 
a city or town may be authorized to raise money by taxation for con- 
ferring benefits on individuals merely because in the past they have 
rendered important and valuable services for the benefit of the general 
public, occasions will not be wanting which will appeal strongh'- to the 
popular sense of gratitude, or to the popular emotion; and the interests 
and just rights of minorities will be in danger of being disregarded. If 
the body of persons to be benefited is numerous, the greater is the influ- 
ence that may probably be brought to bear to secure such an appropria- 
tion of the public money. 



114 



OPINIONS OF THE ATTORNEY-GENERAL. 



I am unable to distinguish between an expenditure to erect a 
building to be in part used by a G. A. R. post and expending public 
money to lease quarters for such a post. No sound distinction can 
be made between a G. A. R. post and a camp of Spanish War 
Veterans. I am not unmindful of the similarity between this act 
and certain provisions of G. L., c. 40, § 9, but I am unable to 
discover that those provisions of that statute have ever been 
passed upon by the Supreme Judicial Court or distinguished from 
Kingman v. BrocHon, supra. I am therefore constrained to advise 
you that the proposed bill would, if enacted, be unconstitutional 
for the reasons set out in Kmgman v. Brockton. 



Prisoners — Paroles — Deductions for Good Behavior. 



To the Dis- 
trict Attorney 
— Northwest- 
ern District. 

1921 
March 31. 



The deduction provided for by G. L., c. 127, § 130, is not a deduction from sen- 
tence but a deduction from the period of confinement only, and allowance 
of such deduction does not cause the sentence to "expire" previous to the 
date on which it would expire by its own terms. Accordingly, such deduction 
is not to be considered in determining whether a prisoner is eligible to release 
on parole under the provisions of G. L., c. 127, § 141. 

G. L., c. 127, § 130, provides, in effect, that prisoners shall be 
entitled to deduction from the period of confinement to which 
they have been sentenced if their behavior as prisoners has been 
good. Section 141 of the same chapter provides for the parole of 
prisoners sentenced to certain institutions for not more than six 
months, "or upon a longer sentence of which not more than six 
months remain unexpired." You request my opinion upon the 
following question: — 



In determining whether "not more than six months remain unexpired," 
as provided in section 141, are deductions on account of good behavior, 
as provided by section 130, to be considered? 



The sections referred to provide : — 

Section 130. Every officer in charge of a prison or other place of 
confinement, except the Massachusetts reformatory, the reformatory 



J. WESTON ALLEN, ATTORNEY-GENERAL. 115 

for women and the state farm, shall keep a record of the conduct of each 
prisoner in his custodj^ whose term of imprisonment is four months or 
more. Every such prisoner, except a prisoner sentenced to the state 
prison for a crime committed on or after January first, eighteen hundred 
and ninety-six, whose record of conduct shows that he has faithfully ' 
observed all the rules and has not been subjected to punishment shall be 
entitled to a deduction from the term of his imprisonment, which shall 
be estimated as follows: upon a sentence of not less than four months 
and less than one year, one day for each month; upon a sentence of not 
less than one year and less than three years, three days for each month; 
upon a sentence of not less than three years and less than five years, 
four days for each month; upon a sentence of not less than five years 
and less than ten years, five days for each month; upon a sentence of 
ten years or more, six days for each month. If a prisoner has two or more 
sentences, the aggregate of his several sentences shall be the basis upon 
which the deduction shall be estimated. A prisoner who is entitled to 
such deduction from the term of his imprisonment shall receive a written 
permit to be at liberty during the time so deducted, upon such terms as 
the board which grants the permit shall prescribe. If a prisoner violates 
any of the rules of his prison or other place of confinement, the board 
authorized to grant permits shall decide what portion of the time, which 
would otherwise be deducted from the term of his imprisonment, shall 
be forfeited by such violation. 

Section 14L A probation officer may, with the consent of the county 
commissioners, or, in Suffolk county, of the penal institutions commis- 
sioner of Boston, investigate the case of any person imprisoned in a 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 
probability 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 maj^, if they consider it expedient, release him on parole, 
upon such terms and conditions as they may prescribe, and may require 
a bond for their fulfilment. 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 anj'' prisoner 
released by them to return to the prison from which he was released. 
This section shall not apply to persons held upon sentences of the courts 
of the United States. 



116 OPINIONS OF THE ATTORNEY-GENERAL. 

The "deduction" provided for by section 130 is not a deduction 
from sentence, but a deduction from the period of confinement 
only. When a prisoner is released on the date when his deductions 
require him to be released, he is not to be discharged, but he "shall 
receive a written permit to be at liberty during the time so de- 
ducted, upon such terms as the board which grants the permit shall 
prescribe." Section 148 provides that "the board or officer grant- 
ing to a prisoner a permit to be at liberty may revoke it at any 
time previous to its expiration." It is clear, therefore, that during 
the period of time covered by his deduction a prisoner does not 
receive his liberty without qualification; he is released from con- 
finement in prison, but it may be made a condition of his permit 
that he remain in Massachusetts, and that he report regularly to 
the proper official. If he violates a condition of his permit, the 
latter is "void" (§ 147) and may be revoked. It follows that 
allowance of the deduction does not cause the sentence to " expire " 
previous to the date on which it would expire by its own terms. 

Since the release on parole provided for by section 141 may be 
granted only to prisoners under sentence of not more than six 
months "or upon a longer sentence of which not more than six 
months remain unexpired,'^ it follows that the deduction provided 
for by section 130 is not to be considered in determining whether 
a prisoner is eligible to release on parole under the provisions of 
section 141. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 117 



Constitutional Law — " Anti-Aid " Amendment — Appropri- 
ations — Zoological Society under Private Control. 

A corporation chartered to hold and manage a public aquarium and zoological 
park in an educational and charitable undertaking, within the meaning of 
the Forty-sixth ("Anti-Aid") Amendment. 

Where the charter of a corporation organized to hold and manage a public aqua- 
rium and zoological park provides that five of the seven directors shall be 
selected by the members of the corporation, who are private citizens, the 
society is not "under the exclusive control, order and superintendence of 
public officers or public agents," within the meaning of the Forty-sixth 
("Anti-Aid") Amendment, even though the other two directors are the 
mayor of Boston and chairman of the park department ex officio, and the 
corporation itself is described as a public agent or public trustee. 

Under the provisions of the Forty-sixth ("Anti-Aid") Amendment, the Legisla- 
ture has no power to authorize the city of Boston to convey a public aquarium 
and zoological park to a corporation so organized, and to provide further that 
such park may be maintained out of public funds, even though the bill describes 
the corporation as a trustee or agent for the city. 

You ask my opinion as to the constitutionality of the redrafted mtttee^^'Bi'iis 
form of House Bill No. 1137, entitled "An Act to charter a zoo- t^int'^ 
logical society in the city of Boston." The title does not fully Apriu. 
describe the purposes of the bill. In brief, it incorporates certain 
persons under the name of the Boston Zoological Society, and 
authorizes the city of Boston to assign or transfer to said society, 
"as trustees or agents for the city," the control, direction and 
administration of the Boston Aquarium and of that part of Frank- 
lin Park which may be defined by the mayor and council as a 
zoological park — 

for the purpose of maintaining by appropriations to be made therefor 
by said city, and to be expended for said purpose by said corporation, 
said aquarium and said portions of said Franklin Park, for free public 
exhibition, and for the recreation of the public and for opportunities 
for the free public study of zoology. 

No question can be made that the Legislature has power to 
incorporate the society. The serious question is whether the 
so-called "anti-aid" amendment (Amend. XLVI) permits the 
management of the aquarium and the zoological park to be vested 
in this society, especially in view of the provision for supporting 



118 OPINIONS OF THE ATTORNEY-GENERAL. 

both by appropriations of public money. The second section of 
said amendment provides, in part: — 

. . . and no grant, appnjpriation or use of public money or property 
or loan of public credit shall be made or authorized by the common- 
wealth or any political division thereof for the purpose of founding, 
maintaining or aiding any school or institution of learning whether 
under public control or otherwise, wherein any denominational doctrine 
is inculcated, or any other school, or any college, infirmary, hospital, 
institution, or educational, charitable or religious undertaking which is 
not pubhcl}'^ owned and under the exclusive control, order and super- 
intendence of public officers or public agents authorized bj^ the com- 
monwealth or federal authority or both. . . . 

The first question is whether said aquarium and zoological park 
are, respectively, an "educational, charitable or religious under- 
taking," within the meaning of the amendment. These are words 
of broad import. In Jackson v. Phillips, 14 Allen, 539, 556, 
Gray, J., defined a charity as follows: — 

A charity, in the legal sense, may be more fully defined as a gift, to be 
applied consistently with existing laws, for the benefit of an indefinite 
number of persons, either by bringing their minds or hearts under the 
influence of education or religion, by relieving their bodies from disease, 
suffering or constraint, by assisting them to establish themselves in life, 
or by erecting or maintaining public buildings or works or otherwise 
lessening the burdens of government. 

A gift of money to establish or maintain a public park is a public 
charity w^ithin the meaning of this definition. Bartlett, Petitioner, 
163 Mass. 509, 514. So, also, is a gift of a house and grounds to 
be used, respectively, as a museum of antiques and for the study 
of botany. Richardson v. Essex Institute, 208 Mass. 311. The 
aquarium and zoological park combine the recreational features 
of a park with the educational features of a museum. While no 
religious features enter into the management or maintenance of 
either, I am of opinion that both constitute an educational and 
charitable undertaking, within the meaning of the Forty-sixth 
Amendment. 

The next question is whether the management of this under- 
taking and the expenditure of appropriations for its maintenance 



J. WESTON ALLEN, ATTORNEY-GENERAL. 119 

can constitutionally be vested in the zoological society in the 
manner provided in this bill. The bill provides that the property 
shall be transferred to the society "as trustees or agents for the 
city of Boston," under such agreement as shall be mutually satis- 
factory to the city and the society. But the bill further provides 
that five of the seven directors "shall be chosen by and from the 
members of the corporation." The members of the corporation 
are certain named private citizens, and such other citizens "as 
may under the provisions of its by-laws, become members of the 
corporation." Although the other two directors are to be the 
mayor and the chairman of the park department, it is evident 
that the control of the corporation is vested in five citizens chosen 
by and from such citizens as may become members of the cor- 
poration. A corporation so governed is not " under the exclusive 
control, order and superintendence of public officers or public 
agents," within the meaning of the Forty-sixth Amendment. 
V Op. Atty.-Gen. 315. 

The difficulty is not overcome by describing the corporation 
itself as a "trustee or agent for the city of Boston." Public 
money is derived from taxes laid according to law upon the citizens. 
It can be expended only for a public purpose. Lowell v. Boston, 
111 Mass. 454; Kingman v. Brockton, 153 Mass. 255. The plain 
intent of this amendment is to require that the expenditure of 
public money for any educational, charitable or religious under- 
taking which possesses the requisite public character shall be 
under exclusive public control. That requirement of the amend- 
ment cannot be met by giving to a corporation which is in fact 
under private control the name of "public agent." The constitu- 
tional mandate is not satisfied by a description which does not 
accord with the facts. 

I am not unmindful of Ware v. Fitchhurg, 200 Mass. 61, but as 
that case was decided prior to the adoption of the Forty-sixth 
Amendment, it does not determine what measure of public control 
that amendment requires. 

I am therefore constrained to advise you that this bill would be 
unconstitutional in so far as it purports to authorize this corpora- 
tion to manage the property in question or to receive and expend 
public money for that purpose. 



120 OPINIONS OF THE ATTORNEY-GENERAL. 



Governor and Council — Power to require the Commis- 
sioner OF Banks to furnish Information. 

Under Mass. Const., pt. 2d, c. II, § I, art. IV, and c. II, § III, art. I. the Gov- 
ernor and Council have incidental power to require the Commissioner of 
Banks to furnish such information as the Governor and Council, under the 
obligation imposed by their several oaths of office, determine that they 
require to guide them in ordering the affairs of the Commonwealth agreeably 
to the Constitution and the laws of the land. 

G. L., c. 167, § 2, does not limit this power to require the Commissioner of Banks 
to furnish information for such purpose. 

mbsioner"^ You inquire as to the duty imposed upon you by the following 

1921 request of the Governor and Council: — 

April 2. ^ 

Will you please furnish to the Governor and Council the names of 
any members of the General Court who borrowed money during the 
year 1918 from one or more of the trust companies which have been 
closed by you. 

In respect to each loan please state the date and amount of the note; 
whether or not any collateral was furnished; the nature of the security, 
if any; the names of any endorsers upon the note; and whether such 
notes are paid or unpaid at the present time. 

Mass. Const., pt. 2d, c. II, § I, art. IV, provides: — 

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

Pt. 2d, c. II, § III, art. I, also provides, in part: — 

The governor, with the said councillors, or five of them at least, shall 
and may, from time to time, hold and keep a council, for the ordering 
and directing the affairs of the commonwealth, according to the laws 
of the land. 

Amendment LXVI provides as follows : — 

On or before January first, nineteen hundred twenty-one, the execu- 
tive and administrative work of the commonwealth shall be organized 



J, WESTON ALLEN, ATTORNEY-GENERAL. 121 

in not more than twenty departments, in one of which every executive 
and administrative office, board and commission, except those officers 
ser-ving directly under the governor or the council, shall be placed. Such 
departments shall be under such supervision and regulation as the general 
court may from time to time prescribe by law. 

Pursuant to this mandate of the Constitution the Legislature, 
by St. 1919, c. 350 (now G. L., cc. 6-28), organized the executive 
and administrative work of the Commonwealth into twenty de- 
partments. In addition to the department of the Governor and 
Council, there are four other departments headed by officers 
created by the Constitution and elected by the people, namely, 
the Secretary, the Treasurer and Receiver-General, the Auditor 
and the Attorney-General, and fifteen departments under the 
direction of officers or commissions appointed by the Governor, 
by and with the consent of the Council, and who may be removed 
in like manner. Included in the said fifteen departments is the 
Department of Banking and Insurance, which is divided into three 
divisions, one of which is the Division of Banks and Loan Agencies. 
The precise question, therefore, is whether the Governor and 
Council may request from one of the said fifteen departments 
information which the Governor and Council may deem necessary 
for the proper and effective discharge of the executive duties which 
the Constitution imposes upon them. A different question might 
perhaps be presented by a similar request addressed by the 
Governor and Council to one of the other four officers who, under 
the Constitution, are elected by the people, and are, under their 
oath of office, directly responsible to the people. 

The Governor and Council are authorized by the Constitution 
from time to time to "hold and keep a council for the ordering 
and directing the affairs of the Commonwealth agreeably to the 
Constitution and the laws of the land." They cannot effectively 
discharge this duty without information touching the "affairs 
of the Commonwealth." Subject to the solemn obligation imposed 
upon the Governor and the members of the Council by their several 
oaths of office, it is for the Governor and Council to determine 
what information they require to enable them to perform their 
constitutional duty. When they address a request for information 



122 OPINIONS OF THE ATTORNEY-GENERAL. 

to a department head, he is bound to presume that the Governor 
and Council have so determined that the information requested 
is required in order to guide them in ordering the affairs of the 
Commonwealth agreeably to the Constitution and the laws of 
the land, and that such information, if furnished, will be used 
only for constitutional and lawful ends. He is not vested with 
power nor charged with the duty to review their action in these 
respects. See Rice v. The Governor, 207 Mass. 577. No legal 
wrong could, in my opinion, be caused to indixdduals by a dis- 
closure to the Governor and Council of information to guide them 
in the discharge of duties imposed upon them by law. In the 
inconceivable case of misuse of such information the responsibility 
would rest, not upon the official who furnished it, but upon the 
official who so misused it. In my opinion, the head of a depart- 
ment who is appointed, and may be removed, by the Governor 
and Council must furnish to the Governor and Council, upon 
proper request, such information as his department has lawfully 
acquired in the discharge of the duties laid upon it by law, provided 
that no law affirmatively forbids such disclosure. See III Op. 
Atty.-Gen. 226; ibid. 403. 

I find no limitation imposed by law upon the disclosure of the 
information requested in the instant case. In so far as the infor- 
mation requested has come to the knowledge of your department 
by reason of the periodic investigations required by G. L., c. 167, 
§ 2, disclosure thereof to the Governor and Council seems to be 
expressly authorized by that portion of said section which pro- 
vides : — 

Such records, and information contained in reports of such banks, 
other than information required by law to be pubhshed or to be open 
to the inspection of the public, shall be open only to the inspection of 
the commissioner, his deputy, examiners and assistants, and such other 
officers of the commonwealth as may have occasion and authority to 
inspect them in the performance of their official duties. 

The law authorizing the Commissioner of Banks to take posses- 
sion of a bank or trust company contains no limitation upon the 
use of information thereby acquired. In the absence of such 



J. WESTON ALLEN, ATTORNEY-GENERAL. 123 

limitation, it is information lawfully in the possession of the depart- 
ment, and with respect to the question now before me is not to be 
distinguished from the information acquired in the course of the 
periodical examinations required by law. 

If some part of the information now requested of you has lawfully 
come to the knowledge of your department in connection with the 
taking possession or liquidation of certain trust companies, pm-su- 
ant to law, disclosure thereof is, in my opinion, justified and re- 
quired by the general principles already considered. 

I therefore advise you that you should furnish, so far as you 
possess it, the information requested in the communication of the 
Governor and Council. 

To avoid possible misconception, I may point out that this 
opinion is confined to the facts now before me. I note that you 
describe the communication addressed to you as a "communica- 
tion of the council." Inspection of the records discloses that this 
communication was sent pursuant to a vote taken at a meeting of 
the Governor and Council, and that the information is to be fur- 
nished to the Governor and Council. A wholly different question 
would be presented if it appeared that the request was made by the 
Council alone and not by the Governor and Council. Upon this 
question I do not attempt to pass, as it is not now before me. 



Weights and Measures — Filling Point of Glass Bottles 
OR Jars used for the Distribution of Milk or Cream. 

Under G. L., c. 98, § 15, where milk or cream is sold in a bottle or jar not having 
a definite measuring point, and said container is not filled to the level of the 
bottom of the cap or stopple thereof, a person selling the same is guilty of 
giving a false or insufficient measure. 

I am in receipt of a communication from you relative to the To the 
construction of G. L., c. 98, § 15. You ask if this section should standards. 

. . . . 1921 

be construed as requiring that glass bottles or jars used in the ApnU. 
distribution of milk or cream at retail must be filled to the level 
of the bottom of the cap or stopple, in the absence of any other 
definite filling point. You also ask if a person is liable to prose- 
cution for giving false or insufficient measure if such bottles 



124 OPINIONS OF THE ATTORNEY-GENERAL. 

or jars are not filled to the level of the bottom of the cap or 
stopple. 

The statute referred to is as follows : — 

Glass bottles or jars used for the distribution of milk or cream to con- 
sumers, and holding, when filled to a level with the bottom of the cap 
or stopple or other definite filling point, not less than three ounces and 
seven drams and not over four ounces and two drams; not less than 
seven ounces and six drams and not over eight ounces and two drams; 
not less than fifteen ounces and five drams and not over sixteen ounces 
and four drams; not less than thirty-one ounces and four drams and 
not over thirty-two ounces and four drams; not less than forty-seven 
ounces and three drams and not over forty-eight ounces and five drams; 
not less than sixty-three ounces and two drams and not over sixty-four 
ounces and six drams, shall be sealed as measures under section forty-one 
or by the manufacturer. Dealers in milk or cream using glass bottles 
or jars for the distribution of milk or cream to consumers, not sealed 
by the manufacturer, shall bring them into the office of the sealer in their 
town, to be sealed; but no fee shall be charged or received for sealing 
them. If a bottle or jar has once been sealed by a sealer or manufac- 
turer, it need not be sealed again while used for the distribution of milk 
or cream to consumers. Glass bottles or jars sealed hereunder shall be 
legal measures only for the distribution of milk or cream to consumers. 
Bottles or jars sealed by the manufacturer shall be marked with his 
name, initials, or trade-mark, and by any other mark required by the 
director. The sealing of such bottles or jars by the manufacturer shall 
not affect any law relating to the giving of false measure or the using, or 
having in possession, of false measures with intent to use the same. 
The director, on approval by the commissioner of labor and industries 
may revoke the authority given by him to any manufacturer under this 
section, on proof that the authorized seal or designating mark has been 
affixed to any bottle or jar not conforming to the respective capacities 
provided for in this section. 

By St. 1900, c. 369, provision was made for the sealing of 
cans, bottles and other receptacles used for the distribution of 
milk or cream. 

There was a provision in P. S., c. 65, § 17, that the sealer "shall 
in no case seal or mark as correct any weights, measures or bal- 
ances which do not conform to the standards," which, on ac- 
count of the fact that glass bottles or jars are not always of 



J. WESTON ALLEN, ATTORNEY-GENERAL. 125 

uniform capacity, made it necessary for fm-ther legislative enact- 
ment on the subject. 

By St. 1901, c. 360, certain maximum and minimum capacities 
for glass bottles or jars used in the distribution of milk or cream 
to consumers were established, and provision was made that 
sealers should seal such bottles or jars as measures for milk or 
cream only, provided that their capacities were within the estab- 
lished range when filled to the level of the bottom of the cap 
or stopple. This statute later appeared as R. L., c. 62, § 43, 
which was amended by St. 1909, c. 531, so as to permit sealing by 
the manufacturer, with the further provision that "the sealing 
of such bottles or jars by the manufacturer shall not be held to 
affect the provisions of law relating to the giving of false measure, 
or the using of a false measure, or the having in possession of a 
false measure with intent to use." 

In 1920 this section was amended so as to permit a definite 
filling point other than the level of the bottom of the cap or 
stopple. This change was made, I am informed, because in the 
case of pasteurized milk, owing to the expansion and contraction 
of the milk due to the heating and subsequent cooling, it was 
impossible to have the bottle or jar filled to the top. 

The history of this legislation leads to the conclusion that the 
Legislature intended to establish a legal measure for milk and 
cream other than the standard liquid measure, which might be 
used if desired, and that where milk or cream was to be sold by 
jar or bottle which had no definite filling point, the legal require- 
ments were complied with by filling to the level of the bottom 
of the cap or stopple. In other words, a milk or cream bottle 
or jar may have a definite measuring point, sealed in accordance 
with law. In the absence of such definite measuring point, if 
the bottle or jar complies with section 15, above quoted, then it 
must be filled to the bottom of the cap or stopple. Where milk 
or cream is sold in a bottle or jar not having a definite measuring 
point, and said container is not filled to the bottom of the cap 
or stopple, a person selling the same is guilty of giving a false or 
insufficient measure. Hence, both questions submitted by you 
must be answered in the affirmative. 



126 OPINIONS OF THE ATTORNEY-GENERAL. 



Settlement — Married Woman — Statutory Period of 
Absence — Minor Child. 

The settlement of a married woman is not dependent upon her physical presence 
in the town of her husband's settlement. The statutory period of absence 
necessary to defeat the settlement of a wife or a widow is to be reckoned from 
the date of the husband's divorce or death. 

Upon marriage, the wife acquires the settlement of her husband, and the death 
of the husband does not revive her ante-nuptial settlement. 

A married woman living apart from her husband for five years prior to his death 
does not lose her settlement upon his death; she is constructively present 
until the marriage is terminated, unless she acquires a separate domicil for 
purposes of divorce. 

G. L., c. 116, § 1, is not retrospective and does not apply to the case of a minor 
child whoso father died prior to the enactment thereof (originally St. 1911, 
c. 669). 

Inability of a husband or father to maintain a wife or minor child committed to a 
State hospital or institution of charity prevents the acquisition by him of 
a settlement unless reimbursement of the cost of such maintenance is made 
under G. L., c. 116, § 2. 



To the Corn- 



April 8. 



missionerS You requcst mv opinion upon several questions in respect to 

Public Welfare. . , . , . , p 

1921^ the settlement oi paupers. 

The statutory provisions pertinent to your request are section 
1 of chapter 116 of the General Laws down to and including the 
third clause of said section, and sections 2, 4 and 5 of the same 
chapter. Said provisions are as follows : — 

Section 1. Legal settlements may be acquired in any town in the 
following manner and not otherwise: 

First, Except as provided in the following clause, each person who, 
after reaching the age of twenty-one has resided in any town within the 
commonwealth for five consecutive years, shall thereby acquire a set- 
tlement in such town. 

Second, A married woman shall follow and have the settlement of 
her husband; but if he has no settlement within the commonwealth, 
she shall retain the settlement, if any, which she had at the time of her 
marriage and may acquire a settlement under the preceding clause. 

Third, Legitimate children shall follow and have the settlement of 
their father if he has one within the commonwealth, otherwise they 
shall follow and have the settlement of their mother if she has one; if 
the father dies during the minority of his children they shall thereafter 
follow and have the settlement of the mother. Upon the divorce of the 
parents the minor children shall follow and have the settlement of the 
parent to whom the court awards their custody. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 127 

Section 2. 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 receiving such relief, he tenders reimbursement of the 
cost thereof to the commonwealth or to the town furnishing it. 

Section 4. No person who actually supports himself and his family 
shall be deemed to be a pauper by reason of the commitment of his wife, 
child or other relative to a state hospital or institution of charity, reform 
or correction by order of a court or magistrate, and of his inability to 
maintain such person therein; or who, to the best of his ability, has 
attempted to provide for himself and his dependents and has not been 
a medicant, and who, through no crime or misdemeanor of his own, has 
come into grievous need and receives aid or assistance given tempora- 
rily, or partial support continuously, to him or his family: provided, that 
nothing herein shall be construed to affect, directly or indirectly, settle- 
ment, poor, or pauper laws, or laws under which any charitj'^, aid or 
assistance is furnished by public authority. 

Section 5. Each settlement existing on August twelfth, nineteen 
hundred and eleven, shall continue in force until changed or defeated 
under this chapter, but from and after said date absence for five con- 
secutive years by a person from a town where he had a settlement shall 
defeat such settlement. The time during which a person shall be an 
inmate of any almshouse, jail, prison, or other public or state institution, 
within the commonwealth, or in any manner under its care and direction 
or that of an officer thereof, 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. The settlement, existing on August twelfth, nineteen 
hundred and sixteen, of a soldier and his dependent eligible to receive 
military aid and soldiers' relief under existing laws shall be and continue 
in force while said soldier or dependent actually resides in the common- 
wealth and until a new settlement is gained in another town in the manner 
heretofore prescribed. 

1. Your first question is as follows: If a married man, having 
a settlement within the Commonwealth, dies or is divorced, is 
the five years' absence necessary for his widow to lose her settle- 
ment to be reckoned from the death (or divorce), or, if the widow 
was absent from the town of her husband's settlement immedi- 
ately prior to his death or his divorce from her, may said five 
years be reckoned from the beginning of said period of absence? 

Up to the time of the death or divorce, the wife's settlement 
was not dependent upon her physical presence in the town of 



128 OPINIONS OF THE ATTORNEY-GENERAL. 

her husband's settlement. If she had been absent therefrom 
for ten years prior to the death or divorce, she would neverthe- 
less have retained as her settlement the settlement of her hus- 
band, for, under the provisions of the second clause of section 1, 
a married woman has the settlement of her husband unless he 
has no settlement within the Commonwealth. 

A settlement is generally acquired by residence. The reason 
for the rule that a wife's settlement follows that of her husband 
is that she is presumed to reside with him. Subject to statutory 
qualifications, she is constructively present at the residence of 
her husband. I am therefore of opinion that the wife's absence 
from the town of her husband's settlement prior to his death or 
divorce is immaterial, and that the five years must be reckoned 
from the date of the death or divorce. Dalton v. Bernardston, 
9 Mass. 201. 

2. Your second question is as follows: If a woman marries, 
subsequent to Aug. 12, 1911, a man having a settlement within 
the Commonwealth, and if the husband dies while residing else- 
where than in the town of his settlement but before completing 
an absence of five years from said town, should any part of the 
widow's absence from said town prior to her marriage be counted 
in computing the time for losing her settlement? 

Immediately upon her marriage the wife acquired the settle- 
ment of her husband, regardless of her previous residence else- 
where. Upon the death of the husband, the wife's ante-nuptial 
settlement would not revive, but she would retain the settle- 
ment of her husband until she lost it by five years' absence or 
until she should acquire a new settlement by remarriage. Ab- 
sence from the town of settlement prior to the time when said 
settlement was acquired is not material, and I am of opinion 
that it may not be included in reckoning the five years' absence 
necessary for the loss of a settlement. 

3. Your third question is as follows: If a married man resides 
in the town of his settlement until his death, and his wife has been 
living apart from him voluntarily for five jears prior to his death, 
would she lose her settlement immediately upon the death of her 
husband? 



J. WESTON ALLEN, ATTORNEY-GENERAL. 129 

As stated above, in the absence of a provision of law to the con- 
trary (as in clause second of section 1 , where it is provided that a 
married woman may retain or acquire a settlement if her husband 
has no settlement within the Commonwealth), a married woman 
is constructively present at her husband's residence. This con- 
structive presence continues until the marriage is terminated unless 
the wife acquires a separate domicil for purposes of a suit for 
divorce. It follows that your third question should be answered 
in the negative. Dalton v. Bernardston, supra. 

4. Your fourth question is as follows: Does the third clause of 
section 1 apply to a case where the father died prior to the enact- 
ment of St. 1911, c. 669, which is now codified as G. L., c. 116, § 1? 

Ordinarily statutes are construed as prospective in their opera- 
tion. McNamara v. Boston & Maine Railroad, 216 Mass. 506. I 
find nothing in the present statute which indicates that St. 1911, 
c. 669, was intended to operate retrospectively upon the case of a 
minor child whose father died prior to the enactment thereof. 
Your fourth question is answered in the negative. 

5. Your fifth question is as follows: Does the inability of a 
husband or father to maintain a wife or minor child who has been 
committed to a State hospital or institution of charity prevent 
him from acquiring a legal settlement? 

G. L., c. 116, § 2, prevents a pauper from acquiring a settlement 
unless he makes the reimbursement therein provided. Aid fur- 
nished by public authority and according to law to the wife or 
minor child of a person, with his consent or knowledge, is equiva- 
lent to like aid furnished to the party himself, and prior to the 
enactment of St. 1913, c. 266, rendered him a pauper during the 
time such aid is furnished, and during a like period prevented 
him from acquiring a settlement. Charlestown v. Groveland, 15 
Gray, 15; Woodward v. Worcester, 15 Gray, 19w; Somerville v. 
Commonwealth, 225 Mass. 589, 592. Unless that statute (now 
G. L., c. 116, § 4) permits him to gain a settlement under such 
circumstances, he still cannot do so. But while G. L., c. 116, § 4, 
declares that a person shall not be deemed a pauper by reason of 
his inability to support a wife, child or other relative in a State 
hospital or institution of charity, this is coupled with the express 



130 OPINIONS OF THE ATTORNEY-GENERAL. 

proviso that nothing in said section shall be construed to affect, 
"directly or indirectly, settlement, poor or pauper laws." The 
proviso, in mj- opinion, excepts settlement, poor and pauper laws 
from the operation of the section. Your fifth question must be 
answered in the affirmative. 



Private Bankers — Surrender of License — Bond. 

Where a person licensed to do business under G. L., c. 169, § 3, proposes to sur- 
render his license and to take out a new license, in the exercise of a proper 
discretion the old bond may be given up and a new bond in a reduced amount 
accepted, but the new bond should be conditioned to apply to business previ- 
ously done as well as to business to be done. 



You ask whether a person having a license to receive deposits of 



To the Com- 
missioner 
of Banks. p i?i • ij, •• i_ i ii* 

1921 money tor sate l\;eeping and transmission abroad, and having given 

' the required bond, who proposes to give up his license and to 

take out a license for receiving deposits of money for transmis- 
sion abroad only, may have his bond reduced to a smaller sum. 
G. L., c. 169, § 3, provides, in part, as follows: — 

In case of the revocation of the license, the monej' and securities and 
the bond, if there be one, shall continue to be held by the state treasurer 
for a period of one year from the date of the revocation of the license 
unless otherwise directed by the order or judgment of a court of com- 
petent jurisdiction. 

In an opinion to the Treasurer and Receiver-General (see 
VI Op. Atty.-Gen. 81) I stated my view to be that the word 
"revocation," in the sentence above quoted, does not include the 
case of a surrender, and that the requirement that the Treasurer 
shall continue to hold the security and the bond for a period there- 
after does not apply to the case of a surrender. I advised the 
Treasurer that I believed that if he was satisfied that there was 
no need of holding the bond and security in the case in question, 
it was within his discretion to return them. 

In the case in which the Treasurer requested my opinion, 
although a license had issued, the licensee at the time of the sur- 
render had done no business under the license, so that there was 



J. WESTON ALLEN, ATTORNEY-GENERAL. 131 

little ground for the Treasurer, in the exercise of his discretion, 
continuing to hold the bond and security. The present case 
presents a different situation, and calls for the exercise of a dis- 
cretion in determining whether or not the bond and security should 
be continued until a year after the licensee ceases to do a business 
of receiving deposits of money for safe keeping as well as for trans- 
mission abroad, unless he receives an order or judgment of a 
court directing otherwise. In the event that a new bond of the 
reduced amount is accepted, the bond should be conditioned to 
apply to business done previous to the issuance of the new bond 
as well as business to be done in the future. 



Governor and Council — Determination of a SaLu\ry — 
Whether by Concurrent Action or by Action as a 
Single Board. 

The Constitution recognizes two kinds of executive business which may come 
before the Council: one, that which is to be done by the Governor and Coun- 
cil acting together as a single executive board; and the other, that which is 
to be done by concurrent action of the Governor, as executive magistrate, 
and of the Council. 

Ordinarily, if a statute provides that the act shall be done by the Governor, by 
and with the advice and consent of the Council, it requires concurrent action 
by the Governor and by the Council. 

Ordinarily, if a statute provides that an act shall be done by the Governor, and 
Council, it requires action by a single executive board composed of the Gov- 
ernor and Council, in which the Governor has one vote. 

Where a statute provides that a salary shall be fixed by the Governor and Coun- 
cil, the substance of the subject-matter is of greater significance than niceties 
of verbal construction, and the statute will ordinarily be construed to require 
concurrent action by both Governor and Council, since such action may 
impose a fixed charge upon the treasury. 

G. L., c. 14, § 2, requires that the salary in question be fixed by concurrent action 
of the Governor and of the Council. 

G. L., c. 14, § 2, provides as follows: — To the 



Upon the expiration of the term of office of a commissioner, his suc- 
cessor shall be appointed for three years by the governor, with the advice 
and consent of the council. The commissioner shall receive such salary, 
not exceeding seventy-five hundred dollars, as the governor and council 
determine. 



Governor. 

1921 
April 14. 



132 OPINIONS OF THE ATTORNEY-GENERAL. 

You orally inquire whether the salary in question is to be 
determined by the concurrent action of the Governor and of the 
Council acting separately, or by the Governor and Council act- 
ing as one body in which the Governor has one vote. 

In Oinnion of the Justices, 190 Mass. 616, 618, the court said: — 

The Constitution recognizes two kinds of executive business which 
may come before the Council: one, that which is to be done bj'' the 
Governor and Council acting together as an executive board, and the 
other, business to be done by the Governor, acting under the responsi- 
biUty of his office as supreme executive magistrate, by and with the 
advice and consent of the Council. 

In Opinion of the Justices, 210 Mass. 609, 611, the court, in 
advising as to the nature of the pardoning power, which, under 
the Constitution, is to be exercised by the Governor "by and 
with the advice of council," said: — 

The granting of a full or a partial pardon is the result of concurrent 
action by both the Governor and the Council. Neither alone can take 
effective action. Both must agree before the Constitution is satisfied. 

In Opinion of the Justices, 211 Mass. 632, the question sub- 
mitted to the Supreme Judicial Court was whether St. 1909, 
c. 504, § 18, which authorized the trustees of a State hospital to 
fix the salar}' of the superintendent and other officers, "subject 
to the approval of the governor and council," required concurrent 
appro^'al by the Governor and by the Council acting separately, 
or by the Governor and Council sitting as one body in which the 
Governor had one vote. In advising upon this question the 
court said : — 

The substance of the subject-matter to be acted on is of greater sig- 
nificance than nicety of verbal construction in determining the intent of 
the Legislature. The power ultimately to fix the salaries of the officers 
and employees of the various public institutions is important in its 
bearing upon the finances of the Commonwealth. It affects or may 
affect the general State tax to an appreciable extent. The Constitution 
creates the Governor the "supreme executive magistrate," and by two 
separate articles clothes him with individual responsibility touching the 



J. 'V\T]STON ALLEN, ATTORNEY-GENERAL. 13c 

finances. In c. 1, § 1, art. 4, it is provided that the receipts from taxes 
and excises shall be "issued and disposed of by warrant, under the hand 
of the governor . . . with the advice and consent of the council," while 
in c. 2, § 1, art. 11, is this language: "No mone3''s shall be issued out of 
the treasury of this Commonwealth . . . but by warrant under the hand 
of the Governor for the time being, with the advice and consent of the 
Council." As chief executive he is answerable in a general sense for the 
administration of government. These articles of the Constitution impose 
upon him a particular duty respecting the finances of the Common- 
wealth. Although under our Constitution he is onlj^ a part of the execu- 
tive department, he is styled the "supreme executive magistrate," 
c. 2, § 1, art. 1. 

Under that portion of our Frame of Government which creates a chief 
executive, it is a fundamental conception that he may be held by the 
people to some degree of direct accountability for the disposition of the 
pubhc revenue. All public funds come directly or indirectly from taxa- 
tion. The expenditure of public money is of direct interest to all the 
people. Respecting all appropriations made by the legislative depart- 
ment of government the Governor ma}'' be held answerable on account 
either of his approval or of his veto. 

Many statutes have been enacted which fix salaries of public officers 
or employees. The Governor for the time being may be held to a certain 
responsibility for these by reason of his duty of approval or disapproval. 
It would seem an incongi'uity to hold that the shifting of such responsi- 
bihty from the Governor as an integral part of the Executive Depart- 
ment to an executive board of which he is one with eight others, was 
wrought without plain language expressive of such intent. 

The words "Governor and Council," when used respecting many 
matters, indicate the single executive board composed of the Governor 
and the councillors. Sparhawk v. Sparhawk, 116 Mass. 315, 317. But 
as employed in the statute now under consideration touching the crea- 
tion of that which may become in the nature of a fixed charge against 
the treasury of the Commonwealth, we incline to the view that they 
require separate approval by the Governor and also by the Council. 
Each must act independently of the other, and both must concur to 
effect the increase in salary. 

In the present statute (G. L., c. 14, § 2) the Legislature has 
used different words in respect to the appointment of the com- 
missioner and in respect to the determination of his salary. He is 
to be appointed "by the governor with the advice and consent 
of the council." This provision clearly requires that the Gov- 
ernor and the Council, acting separately, shall concur in the 



134 OPINIONS OF THE ATTORNEY-GENERAL. 

appointment. Ojnnion of the Justices, 190 Mass. 616; Opinion 
of the Justices, 210 Mass. 609. His salary is to be determined 
by "the governor and council." This provision, when contrasted 
with the provision for appointment, is susceptible of a construc- 
tion which would require that the salary be fixed by the Gov- 
ernor and Council sitting as one body, in which the Governor 
would have one vote. But a statute which subjects the cre- 
ation of what may be a fixed charge upon the treasury to "the 
approval of the governor and council" is susceptible of a con- 
struction which would require concurrent approval of such 
charge by both the Governor and the Council acting separately. 
Ojyinion of the Justices, 211 Mass. 632. Except for the difference 
in the form of the two provisions, there is nothing in the act 
which indicates that the Legislature intended that the appoint- 
ment should be made in one manner and that the salary should 
be determined in another manner. The determination of a 
salary, which involves a charge upon the treasury, is a question 
upon which the independent judgment of both the Governor and 
the Council may fittingly be exerted. The substance of the 
subject-matter is of greater significance than nicety of verbal 
construction in determining the intent of the Legislature. 
Oiyinion of the Justices, 211 Mass. 632, 634. Lender these cir- 
cumstances, I am of opinion that the salary is to be determined 
in the same manner that the appointment is made, namely, by 
the concurrent action of the Governor and of the Council acting 
separately, and not by the Governor and Council sitting as one 
body in which the Governor has one vote. 

I am not unmindful that a different opinion upon a somewhat 
similar statute was rendered to the executive secretary- on July 
21, 1911, by one of my predecessors, but as that opinion was 
apparently based upon the Oyinion of the Justices in 190 Mass. 
616, and makes no reference to the opinion in 211 Mass. 632, 
which was handed down upon June 5, 1911, about six weeks 
previously, I am constrained not to follow it. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 
CONSTITITIONAL LaW — ATTORNEYS AT LaW — CITIZENSHIP AS 

Requirement for Admission to Bar, 

The Legislature may constitutionally require that applicants for admission as 

attorneys at law be citizens of the United States. 
A State may deny to non-citizens the privilege of being its officers or employees. 

You request me to consider Senate Bill No. 114, entitled "An Totiic 

Governor. 

Act requiring that applicants for admission as attorneys at law ^^^?,',g 
be citizens of the United States." 

A statute requiring citizenship as a qualification for admission 
as an attorney at law was first enacted in 1836. R. L., c. 88, 
§ 19. This act remained unchanged until 1852, and its con- 
stitutionality was never questioned. In that year aliens who 
had made their primary declaration of intention to become 
citizens of the United States were permitted to take the ex- 
amination for admission to the bar. St. 1852, c. 154. This 
statute has, in substance, remained in force to the present day. 

It is significant that the constitutionality of these require- 
ments has never been questioned. The court has referred to 
the requirement of citizenship as a qualification for admission 
to the bar, if not with approval, at least without disapproval. 
Rohinsoris Case, 131 Mass. 376, 382; Opinion of the Justices, 
136 Mass. 578, 582, The fact that a requirement of a declara- 
tion of intention to become a citizen of the United States as a 
qualification for admission as an attorney at law remained in 
force and unchallenged for almost seventy years is a strong 
indication of its constitutionality. The difference between such 
a requirement and the requirement of citizenship is one of de- 
gree, and it would seem that the difference in degree is not so 
great as to render a requirement of citizenship as a qualification 
for admission to the bar unconstitutional. 

An attorney at law is an officer of the court, exercising a privi- 
lege or franchise during good behavior. Matter of Samuel Carver, 
224 Mass. 169, 172. He is in a sense an officer of the State. 
Bergeron, Petitioner, 220 Mass. 472, 476. He is required upon 
his admission to take and subscribe the oaths to support the 
Constitution of the United States and of the Commonwealth 



135 



136 OPINIONS OF THE ATTORNEY-GENERAL. 

(G. L., c. 221, § 38), and this requirement is recognized as con- 
stitutional by the court. Robinson's Case, 131 Mass. 376, 379. 
Women were not entitled to be admitted to the bar until 1882. 
Robinson's Case, supra; St. 1882, c. 139. A State may undoubt- 
edly deny to non-citizens the privilege of being its officers or 
employees. Heim v. McCall, 239 U. S. 175. 

In my opinion, therefore, the proposed bill, if enacted, would 
be constitutional, and I obser\-e no defect of form. 



Taxation — Income Tax — Sale of Lease. 

The sum received from a sale of a leasehold interest is taxable, under G. L., c. 62, 
§ 5, cl. (c), as a gain from the sale of intangible personal property. 

m^sioner°^" You statc the following facts: A, having paid nothing for a 

Corporations , ri' I'U' j. 1^- -i 

and Taxation. Icasc 01 a busuicss buiiduig cxccpt au annual rent, assigns said 
April 1 8. lease to B before it has expired, and in consideration of said assign- 

ment B pays to A the sum of $55,000. You request my opinion 
whether said sum is taxable as a gain from the sale of intangible 
personal property, under the provisions of G. L., c. 62, § 5, cl. (c). 
Said clause provides, in part : — 

The excess of the gains over the losses received by the taxpayer from 
purchases or sales of intangible personal property, whether or not said 
taxpayer is engaged in the business of dealing in such property, shall 
be taxed at the rate of three per cent per annum. 

Your inquiry raises two questions: First, is a leasehold interest 
real or personal property? Second, if it is personal property, is it 
tangible or intangible? 

In the early days of our law, leases were considered contracts 
and were so defined. 2 Blackstone 142; Bac. Abr. Tit. "Leases;" 
Thomas v. West Jersey R.R. Co., 101 U. S. 71. If so considered and 
defined to-day, they would be choses in action, and profits derived 
from the sale of them would, therefore, be taxable under the section 
above quoted. But as the law developed, leases came to be more 
than contracts, and were held to create an actual estate in the land 
demised. Leake's Property in Land, 2d ed., pp. 30, 31; Wash- 



J. WESTON ALLEN, ATTORNEY-GENERAL. 137 

burn's Real Property, §§ 604, 605; Sanders v. Partridge, 108 Mass. 
556, 558; G. L., c. 186, § 1; G. L., c. 235, § 46. 

At this point, consistency would seem to have required that 
leasehold interests, like freehold interests, should be deemed real 
property. But considerations of consistency did not prevail; 
leases came to be described as "chattels real," and were held to 
descend to the administrator as personal property rather than to 
the heir as realty. In re Gay, 5 Mass. 419. The law is unchanged 
in that respect to-day. Moreover, leasehold interests are levied 
upon as personalty (G. L., c. 235, § 46; Chapman v. Gray, 15 Mass. 
439), and our statutes providing for the recording of conveyances 
of real property do not apply to leases for a term of less than seven 
years (G. L., c. 183, § 4). 

From the standpoint of the limitation of estates, therefore, 
leasehold interests are considered realty, while for purposes of 
devolution and levy they are dealt with as personalty, and statutes 
providing for the recording of conveyances of land do not generally 
apply to them. Nor have they lost their original contractual 
aspect. 

Since terms for years have a double aspect, it is important to 
notice how they have been dealt with for purposes of taxation. 
In at least two States they have been classified as personalty 
in that respect. Wilgus v. Commomvealth, 9 Bush. (Ky.) 556; 
Harvey Coal c(- Coke Co. v. Dillon, 59 W. Va. 605. In Massachu- 
setts and generally throughout the country it is customary to 
assess real estate to the owner of the freehold and not to the owner 
of a term for years. 

In Freedman v. Bloomberg, 225 Mass. 491, the question was 
whether a mortgage of a leasehold interest must be recorded in the 
city clerk's office under R. L., c. 198, § 1, now G. L., c. 255, § 1, 
which required mortgages of "personal property " to be so recorded. 
The court did not expressly determine whether the mortgage was 
of personalty or realty, but held that the statute in question ap- 
plied, in the language of Shaw, C.J., in Marsh v. Woodbury, 1 Met. 
436, "only to goods and chattels capable of delivery, and not to 
the defeasible or conditional assignment of a chose in action." 
While the court said that the term "personal property" was not 



13S OPINIONS OF THE ATTORNEY-GENERAL. 

"accurate" as a description of a term for years, they did not by 
any means hold that such property was realty. 

In general, and particularly for purposes of taxation, leasehold 
interests seem frequently to be treated as personalty. I cannot, 
therefore, advise you that they should be treated as realty in respect 
to the income tax law. 

I next consider the question wliether, if a leasehold interest is 
personalty, it is tangible or intangible. Leases are frequently 
described as "chattels real," and the word "chattel" connotes a 
movable, a piece of property susceptible of manual delivery, and 
therefore tangible. But the case of Freedman v. Bloomberg, supra, 
seems to hold that a leasehold interest is not tangible personal 
property. If, therefore, it is personalty, it seems to be intangible. 
If there is anything whatever of a tangible nature in connection 
with a leasehold interest, it seems to be land and not personalty. 

Your question is novel. An answer either way is not free from 
doubt. I do not feel that I ought to resolve that doubt against 
the Commonwealth, which has no opportunity to appeal from 
my opinion. The Commonwealth and the citizen stand on equal 
terms in this respect if the tax be assessed and the citizen tests the 
validity thereof in open court. 



To the 
Governor 
and Council 



Attorney-General — Travel outside Commonwealth — 

Expenses. 

St. 1920, c. 253, does not apply to the Attorney-General. 

In view of the duties imposed by law upon the Attorney-General, he is not required 
by St. 1920, c. 253, to obtain the authority of the Governor to travel at public 
expense upon public business outside the Commonwealth or to specify the 
places to be visited and the probable duration of his absence. 



You have asked my opinion as to the application of St. 1920, 
fa^V*'"""'- c. 253, to the Attorney-General. That act provides: — 

April 20. 

Section eleven of chapter four of the Revised Laws is hereby amended 
by adding at the end thereof the following: — No officer or employee of 
the commonwealth shall travel outside the commonwealth at public 
expense unless he has previously been authorized by the governor to 
leave the commonwealth, and in applying for such authorization the 



J. WESTON ALLEN, ATTORNEY-GENERAL. 139 

officer or employee shall specify the places to be visited and the probable 
duration of his absence, — so as to read as follows: — Section 11. The 
governor maj^ appoint state officers as delegates to represent the com- 
monwealth at such conventions as may be held in any part of the United 
States for the purpose of considering questions of charity, reform, sta- 
tistics, insurance and other matters affecting the welfare of the people. 
The necessary expenses of such delegates may be paid from such appro- 
priations as the general court shall make from year to year for the travel- 
ling and contingent expenses of such officers. No officer or employee of 
the commonwealth shall travel outside the commonwealth at public 
expense unless he has previously been authorized by the governor to 
leave the commonwealth, and in applying for such authorization the 
officer or employee shall specify the places to be visited and the probable 
duration of his absence. 

In colonial times the Attorney-General was the chief law 
officer of the province. The powers and duties of the office 
were such as pertained to it at common law. It was continued 
as a State office by article IX of section I of chapter II of part 
second of the Constitution adopted in 1780, and the powers and. 
duties of the office were continued by Mass. Const., pt. 2d, 
c. VI, art. VI. Amendments XVII and LXIV now provide that 
he shall be elected by the people, and prescribe his term of office. 
While the powers and duties of the office have since been de- 
clared to some extent by statute (see G. L., c. 12, §§ 1-11), he 
still possesses additional common-law powers. Parker v. May, 
5 Cush. 336, 340; McQuesten v. Attorney-General, 187 Mass. 185. 

Putting aside the question whether and to what extent the 
Legislature could limit the power of a constitutional officer to 
perform his duties, it w^ill be sufficient in this case to determine 
whether this act purports to do so. 

The Attorney-General, as the name of his office implies, is the 
chief law officer of the Commonwealth. Proper discharge of his 
duties may require him to travel beyond the borders of the Com- 
monwealth — for example, to represent the Commonwealth be- 
fore the Supreme Court of the United States. The occasion for 
his presence in Washington, or elsewhere, to represent the Com- 
monwealth may arise suddenly, under circumstances which 
would preclude him from applying to the Governor before he 



140 



OPINIONS OF THE ATTORNEY-GENERAL. 



starts. If this statute should be held to apply to hini he could 
not discharge his duty to the Commonwealth if the Governor 
could not be reached or should refuse his approval. The statute, 
in my opinion, was not intended to apply to the Attorney-Gen- 
eral, and does not apply to him under such or similar circum- 
stances. It amends an act relative to sending delegates to con- 
ventions outside the State. Such an act has no natural appli- 
cation to the Attorney-General when he is acting in the discharge 
of the duties of his office. This view is in entire accord with the 
requirement of the amendment that the officer or employee 
"shall specify the places to be visited and the probable duration 
of his absence," — a requirement with which the Attorney- 
General might well find it impossible to comply, owing to the 
exigencies which might arise in the discharge of those duties. 

While the Auditor of the Commonwealth has raised the ques- 
tion upon expenses incurred by me or those acting by my direc- 
tion in the discharge of their official business, the question pre- 
sented is the broad question of the authority vesting in the office, 
and its decision is equally applicable to those who shall hold the 
office of Attorney-General in the future. Because, however, for 
the moment it involves a decision as to my own powers, I sub- 
mitted the question in writing to three former Attorneys-Gen- 
eral, and they have severally advised me that in their opinion 
the act does not apply and was not intended to apply to the 
Attorney-General when he is acting in the discharge of the duties 
of his oflBce. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 141 



Constitutional Law — Physicians and Dentists — Citizen- 
ship AS Requirement for Registration — Reasonable 
Regulations for Public Health. 

Reasonable regulations and rational means designed to protect the public health 
are constitutional. 

The power to make regulations cannot be used arbitrarily or unreasonably. 

The purpose of a statute must be found in its natural operation and effect. 

An act requiring that applicants for registration as physicians or dentists be 
citizens of the United States or aliens who have made the primary declara- 
tion of intention to become citizens, and that the registration of aliens be 
canceled unless they become citizens within seven years from the date of 
their registration, is so arbitrary and unreasonable as to be unconstitutional. 

You request my opinion as to the constitutionality of House To the House 
Bill No. 1464, entitled "An Act providing that registered phy- Biiisimhe 

', .... Third Reading. 

sicians and dentists practising in this Commonwealth shall be a^^?/. 



citizens of the United States." 

Section 1 of the proposed bill requires that applicants for 
registration as qualified physicians be citizens of the United 
States or aliens who have made the primary declaration of in- 
tention to become citizens; that the Board of Registration in 
Medicine shall revoke any certificate of registration hereafter 
issued by it to an alien, and cancel his registration unless he be- 
comes a citizen of the United States within seven years from the 
date of said certificate; and that the Board shall not reissue 
any certificate formerly issued by it or issue a new certificate and 
register anew any physician whose certificate was revoked and 
whose registration was canceled when the cause of revocation or 
cancellation was non-citizenship. Section 2 makes similar re- 
quirements and provisos with respect to applicants for regis- 
tration in dentistry. Section 3 provides that every alien regis- 
tered in this Commonwealth as a physician or a dentist, at the 
time the act takes effect, shall within seven years thereafter be- 
come a citizen of the United States; otherwise his certificate of 
registration shall be revoked and his registration canceled by the 
board which registered him. 

The State may make such regulations as it deems proper to 
protect the public health without contravening the provisions or 



April 20. 



142 OPINIONS OF THE ATTORNEY-GENERAL. 

spirit of the State or Federal constitutions. Collins v. Texas, 
223 U. S. 288, 296; Reetz v. Michigan, 188 U. S. 505, 506; Com- 
momvealth v. Porn, 196 Mass. 326, 329; Commonwealth v. Zim- 
merman, 221 Mass. 184, 189. 

The power to make such regulations cannot, however, be 
used arbitrarily or unreasonably. A State may classify with 
reference to the e^■il to be prevented, and if the class discriminated 
against is, or reasonably might be, considered to define those 
from whom the evil is mainly to be feared, it properly may be 
picked out. Patsone v. Pennsylvania, 232 U. S. 138, 144. But 
such classification must have some reasonable basis upon which 
to stand. It must always rest upon some difference which bears 
a reasonable and just relation to the act in respect to which the 
classification is proposed, and can never be made arbitrarily and 
Avithout any such basis. ' Truax v. Raich, 239 U. S. 33; Gulf, 
Colorado d- Santa Fe Ry. v. Ellis, 165 U. S. 150, 155. If the 
regulations bear no relation to the calling or profession, they are 
unconstitutional. In Truax v. Raich, supra, the Supreme Court 
of the United States said, at page 41 : — 

It is sought to justify this act as an exercise of the power of the State 
to make reasonable classifications in legislating to promote the health, 
safety, morals and welfare of those within its jurisdiction. But this 
admitted authoritj^, with the broad range of legislative discretion that 
it implies, does not go so far as to make it possible for the State to deny 
to lawful inhabitants, because of their race or nationality, the ordinary 
means of earning a livelihood. It requires no argument to show that 
the right to work for a h\ang in the common occupations of the com- 
munity is of the very essence of the personal freedom and opportunity 
that it was the purpose of the amendment to secure. Butchers' Union 
Co. V. Crescent City Co., Ill U. S. 746, 762; Barbier v. Connolly, 113 
U. S. 27, 31; Yick Wo v. Hopkins, supra (118 U. S. 356, 369); Allgeyer 
V. Louisiana, 165 U. S. 578, 589, 590; Coppage v. Kaiisas, 236 U. S. 
1, 14. If this could be refused solely upon the ground of race or nation- 
ality, the prohibition of the denial to anj' person of the equal protection 
of the laws would be a barren form of words. 

See also Dent v. West Virginia, 129 U. S. 114, 122; Haioker v. 
New York, 170 U. S. 189, 195. 



J. WESTOX ALLEN, ATTORNEY-GENERAL. 143 

Our own courts have held that reasonable regulations do not 
impair the provisions of the State and Federal constitutions, and 
that any rational means designed to protect the public health 
must be upheld. Commonwealth v. /immerman, 221 ]Mass. 184, 
189; Commomvealih v. Porn, 196 Mass. 326, 329. 

Does the proposed bill bear so little relation to the protection 
of public health that it can be said to be arbitrary and unreason- 
able? The purpose of the act must be found in its natm-al operation 
and effect. Truax v. Raich, 239 U. S. 33, 40. The act itself is 
entitled "An Act providing that registered physicians and dentists 
practising in this Commonwealth shall be citizens of the United 
States." This would seem to indicate that the primary purpose 
of the proposed bill was not to legislate relative to the qualifications 
of physicians and dentists. Under the proposed bill aliens who are 
now practising medicine or dentistry, and aliens who have made 
their primary declaration of intention to become citizens and are 
registered in medicine or dentistry, may carry on their respective 
professions for a period of seven years without becoming citizens 
of the United States. This would seem to indicate that in the 
opinion of the Legislature the requirement of citizenship bears no 
relation to the fitness of an individual as a physician or dentist, 
since otherwise the Legislature would not permit the public health 
to be endangered for a period of seven years. 

I cannot see any reasonable or rational relation between citizen- 
ship and fitness as a physician or dentist. I cannot see how citizen- 
ship can have any real bearing upon an applicant's knowledge, 
education or character, which are the prime tests of his qualifi- 
cations. In my opinion, therefore, the proposed bill is so arbitrary 
as to render it unconstitutional. 

Section 3 applies to aliens registered as physicians and dentists 
at the time of the passage of the act. If the requirement of citizen- 
ship were constitutional, this section would not be unconstitutional 
merely by reason of its eftect upon persons who had, previous to the 
passage of the act, been registered as qualified physicians or 
dentists. Collins v. Texas, 223 L^. S. 288, 297; Reetz v. Michigan, 
188 U. S. 505, 510; Haid-er v. ^^ew York, 170 U. S. 189, 200; 
Dent V. West Virginia, 129 U. S. 114, 123. 



144 OPINIONS OF THE ATTORNEY-GENERAL. 



Insurance — Foreign Mutual Fire Insurance Company — 
Admission — Guaranty Capital — Net Cash Assets — 
Liabilities. 

A foreign mutual fire insurance company having a paid-up guaranty capital of 
S 100,000, liabilities of §58,240.01, a surplus over liabilities (excluding guar- 
anty capital) of S27,518, and contingent assets of $136,385.14, is qualified 
for admission to do business in the Commonwealth, under G. L., c. 175, § 151, 
el. 2d (3), since the company has net cash assets equal to its total liabilities, 
and contingent assets of not less than $100,000. 

The guaranty capital of the company, in the interpretation of this particular 
section, is not to be construed as a liability. 

missk)nM°S' You Tcqucst my opinion on a question of law raised by the 

Insurance. following Set of f acts : — 

^1^ ■ A foreign mutual fire insurance company has applied for ad- 

mission to do business in this Commonwealth. Its financial 
statement shows that it has a paid-up gua,ranty capital of $100,000, 
liabihties of $58,240.01, a surplus over liabilities (excluding guar- 
anty capital) of $27,518, its contingent assets amounting to 
$136,385.14. You ask the following questions: — 

1. Whether or not the compan}^ can quality under any of the options 
set forth in G. L., c. 175, § 151, cl. 2 (3). 

2. Whether or not the term "net cash assets," as used in the second 
clause of said section 151, includes guaranty capital. 

3. WTiether or not the said term "net cash assets" means surplus 
over all liabilities, including in lial)ilities guaranty capital. 

4. Whether or not guaranty capital is a hability, within the meaning 
of clause 2 (3) (d) of said section 151. 

Section 151, so far as it is pertinent to the questions raised by 
you, reads as follows : — 

No foreign company shall be admitted and authorized to do business 
until — 

Second, It has satisfied the commissioner that ... (3) it has, if a 
mutual company, other than life, (a) net cash assets equal to the capital 
required of like companies on the stock plan; or (b) net cash assets of 
not less than fifty thousand dollars and contingent assets of not less 
than three hundred thousand dollars, or (c) net cash assets of not less 



J. WESTON ALLEN, ATTORNEY-GENERAL. 145 

than seventy-five thousand dollars, with contingent assets of not less 
than one hundred and fifty thousand dollars, or (d) net cash assets equal 
to its total liabilities and contingent assets of not less than one hundred 
thousand dollars; . . . 

If the said foreign mutual fire insurance company qualifies under 
any of these provisions, it is under subdivision (d), as having net 
cash assets equal to its total liabilities and contingent assets of 
not less than $100,000 and the specific question to be determined 
is as to whether or not the guaranty capital of the company, 
amounting to $100,000, is to be included in the term "net cash 
assets." 

Section 79 of said chapter 175 provides that "a mutual fire 
company may be formed with, or an existing mutual fire company 
maj' establish, a guaranty capital of not less than twenty-five 
thousand nor more than two hundred thousand dollars," and its 
guaranty capital shall be applied to the payment of losses only 
when the company has exhausted its assets exclusive of uncollected 
premiums. 

As was said in Commonwealth v. Berkshire Life Ins. Co., 98 Mass. 
25, 29, guaranty capital " is a capital furnished by way of guarantee 
against losses in excess of premiums." 

The tenth paragraph of section 1 of said chapter 175 defines 
" net assets " as " the funds of a company available for the paj^ment 
of its obligations in the commonwealth, including, in the case of a 
mutual fire company, its deposit notes or other contingent funds, 
. . . and also including uncollected and deferred premiums not 
more than three months due on policies actually in force, after 
deducting from such funds all unpaid losses and claims, and claims 
for losses, and all other debts and liabilities inclusive of net value 
of policies and exclusive of capital." In other words, capital is to 
be excluded as a liability item when computing the net assets of 
a company which are available for the payment of its obligations 
in the Commonw^ealth. 

While it is true that guaranty capital is in no proper sense the 
capital of the company, and the shares do not, as in stock corpora- 
tions, represent aliquot fractional interests in the property and 
franchise, and is a liability rather than a part of the assets of the 



146 



OPINIONS OF THE ATTORNEY-GENERAL. 



corporation, and should be so included in every statement of its 
pecuniary condition (Commonwealth v. Berkshire Life his. Co., 98 
Mass. 25), nevertheless, guaranty capital, in my opinion, where 
the question is whether or not a foreign company has the proper 
assets to be admitted under one of the subdivisions enumerated in 
the second clause of section 151 set forth above, should not be 
included among the liabilities of the corporation. 

It will be noted that the requirements are practically divided 
into two divisions, that is, net cash assets and contingent assets, 
the former being the funds of the company available for the pay- 
ment of its obligations in the Commonwealth, and the latter, the 
liability the policyholders are under to pay an assessment if a 
mutual fire company is not possessed of assets above its unearned 
premiums sufficient for the payment of incurred losses and ex- 
penses, as provided for in section 83 of said chapter 175. 

Accordingly, I am of the opinion that the foreign mutual fire 
insurance company, on its financial statement set forth above, does 
qualify under G. L., c. 175, § 151, cl. 2, (3) (d), since the figures 
show that it has net cash assets equal to its total liabilities and 
contingent assets of not less than $100,000, it having net cash 
assets equal to its total liabilities, as the guaranty capital, in the 
interpretation of this particular section, is not to be construed as 
a liability. 

The above answers your questions 1, 2 and 4, and it follows, of 
course, that the answer to your third question is in the negative. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 147 



Constitutional Law — Impairment of Contract — Eastern 
Massachusetts Street Railway Company. 

Spec. St. 1918, c. 188, constitutes a contract between the Commonwealth and 
the Eastern Massachusetts Street Railway Company, giving to the trustees 
appointed thereunder the right to regulate and fix fares and to determine the 
character and extent of the service and facilities to be furnished, and giving 
to the directors the right to pass upon contracts for the construction and 
operation of additional lines. 

St. 1920, c. 613, as amended by St. 1920, c. 637, which contains provisions direct- 
ing the trustees to construct additional lines and regulating rates of fare, is 
an impairment of the contract contained in Spec. St. 1918, c. 188, and is 
therefore unconstitutional. 

Consequently, a bill to provide further for the carrying into effect of said St. 1920, 
c. 613, as amended, if enacted, would also be unconstitutional. 

I have the honor to acknowledge the receipt of the following To the House 

Committee on 
communication: street Railways. 



1921 
April 22. 



The committee on street railways desires your opinion on the con- 
stitutionality of House Bill No. 779, relative to the public operation of 
street railway lines in the Hyde Park district of the city of Boston; also 
your opinion on the constitutionality of a bill permitting the city of 
Boston to take by eminent domain the street railwaj^ lines of the Eastern 
Massachusetts Street Railway Company, located in the Hyde Park 
district of the city of Boston, as designated in chapter six hundred and 
thirteen of the acts of nineteen hundred and twenty. 

House Bill No. 779, now pending before your committee, pro- 
vides as follows : — 

The city of Boston is hereby directed to pay such sums as are specified 
in chapter six hundred and thirteen, as amended by chapter six hundred 
and thirty-seven, of the acts of nineteen hundred and twenty in the 
manner and to the parties therein specified in order to carry out the 
provisions of said acts. Upon such payment to the Hyde Park Trans- 
portation District said corporation is directed to commence operating 
said lines forthwith. 

St. 1920, c. 613, is entitled "An Act to provide for the public 
operation of street railway lines in the Hyde Park district of the 
city of Boston." Before stating its provisions it will be convenient 
to refer to Spec. St. 1918, c. 188, under which the Eastern Massa- 



148 OPINIONS OF THE ATTORNEY-GENERAL. 

chusetts Street Railway Company was organized and has been 
operated by trustees. 

Spec. St. 1918, c. 188, provides in section 1 for the organization 
of a new company to acquire the railways, property and franchises 
of the Bay State Street Railway Company, and to hold and possess 
the same under St. 1906, c. 163, pt. Ill, §§ 144 and 145. Section 
2 provides for the appointment of trustees by the Governor, with 
the advice and consent of the Council, to manage and control the 
new company for a period of ten years. Section 11 provides that 
the trustees shall manage and operate the new company for the 
period specified in section 2, and shall have, and may exercise, 
all the rights and powers of the new company. Said section con- 
tains this provision : — 

They shall have the right to regulate and fix rates and fares, in- 
cluding the issue, granting and withdrawal of transfers, and the imposi- 
tion of charges therefor, and shall determine the character and extent 
of the service and the facilities to be furnished, and in these respects 
their authority shall be exclusive, and shall not be subject to the ap- 
proval, control or discretion of any other state board or commission 
except as provided in this act, and except as to joint rates and fares or 
service with connecting companies other than the Boston Elevated 
Railway Company. 

Section 12 is as follows: — 

No contracts for the construction, acquisition, rental or operation of 
any additional lines or for the extension, sale or lease of existing lines 
or any portion thereof shall be entered into without the consent of the 
directors of the new company, unless, after such consent has been re- 
fused, the public service commission shall determine after a public 
hearing that public necessity and convenience require such construc- 
tion, acquisition or extension, sale or lease, and that the same will not 
impair the return on outstanding stock, bonds and other evidences of 
indebtedness contemplated by the provisions of tliis act; and in case 
of such determination the directors shall have a right of appeal to the 
supreme judicial court, and if the court shall decide that the said return 
would so be impaired, the contemplated action shall not be taken. 

Section 23 provides that the act shall take effect upon its passage 
as to sections 1 , 2 and 3, and as to the remaining sections upon its 



J. WESTON ALLEN, ATTORNEY-GENERAL. 149 

acceptance by the company, given by a vote of the holders of two- 
thirds of each class of stock at a meeting held for the purpose. 

The above provisions in section 1 1 in regard to the right of the 
trustees to regulate and fix fares and to determine the character 
and extent of the service and the facilities to be furnished, and in 
section 12 in regard to the right of the directors to pass upon 
contracts for the construction or operation of additional lines, in 
my judgment, constitute a contract between the Commonwealth 
and the Eastern Massachusetts Street Railway Company which 
cannot be impaired without violating section 10 of article I of the 
United States Constitution. II Op. Atty.-Gen. 261, 426; III Op. 
Atty.-Gen. 396, 400. 

St. 1920, c. 613, as amended by St. 1920, c. 637, for the pur- 
poses of the act, constitutes the trustees appointed under Spec. 
St. 1918, c. 159, a corporation. It directs the trustees of the 
Eastern Massachusetts Street Railway Company to construct a 
double track line on Hyde Park Avenue, and authorizes the city 
of Boston to pay to the corporation $30,000 for repairs and re- 
construction of tracks, etc., within the district. It provides that 
thereupon said company shall cease to operate the street rail- 
way lines within the Hyde Park district, and shall permit the 
corporation to take over and operate the same at a specified 
annual rental. It provides that said street raihvay lines shall 
be managed and operated by the corporation in behalf of the 
city of Boston, and that the rate of fare within the Hyde Park 
district shall not exceed the unit rate of fare which the Boston 
Elevated Railwaj' Company now charges or may hereafter 
charge on its system. In my opinion, this act is an impairment 
of the contract contained in Spec. St. 1918, c. 188, and is there- 
fore unconstitutional. 

I do not need to consider, therefore, the question whether the 
statute is also unconstitutional in its directions with respect to 
the construction and operation of street railway lines. Mayor, 
etc., of Worcester v. Norwich & Worcester R.R. Co., 109 Mass. 
103; Brownell v. Old Colony R.R., 164 Mass. 29; Atlantic Coast 
Line V. N. Car Corp. Com'n, 206 U. S. 1; Wilson v. New, 243 
U. S. 332, 384. 



150 OPINIONS OF THE ATTORNEY-GENERAL. 

Since St. 1920, c. 613, as amended, is unconstitutional, I have 
to advise you that the proposed legislation appearing in House 
Bill No. 779,_ purporting to direct the city of Boston to pay cer- 
tain sums as therein specified, in order to carry out the provision 
of that act, and to direct the Hyde Park Transportation Dis- 
trict to commence operating said lines, is also unconstitutional. 

As to your second question, relative to the constitutionality 
of a bill permitting the city of Boston to take by eminent domain 
the street railway lines of the Eastern Massachusetts Street 
Railway Company located in the Hyde Park district I am un- 
able to comply with your request, as there is no pending bill 
before me for consideration. 



To the Com- 



Insurance — Services furnished by an Automobile Service 
Company — Contract of Insurance. 

An agreement by an automobile service company to furnish towing, repairs and 
automobile goods incidental to the operation of a car through the period of 
a year, for a fixed sum, is not a contract of insurance. 



m?s8ioner°S You liavc rcqucstcd my opinion as to whether any features 

Insurance 

1921 
April 22. 



1921 contained in a contract of the Emergency Auto Service Com- 



pany involve insurance. 

Under the contract submitted to me the Emergency Auto 
Service Company, upon the receipt of a fixed sum from an auto- 
mobile owner, agrees to furnish service for one year in connec- 
tion with the owner's automobile on any passable road in the 
New England States where the automobile may have become dis- 
abled while in actual use so that it cannot be operated. The 
service to be furnished includes : — 

1. The towing of the automobile to the nearest station of the 
company, when the cause of its failure to operate is a break or 
defect in its mechanism. The company will tow the automo- 
bile to a further point, but in such case the owner is to pay for 
mileage in excess of mileage to the nearest station of the com- 
pany. 

2. Furnijshing a mechanic to make repairs; but the owner 
is to pay market prices for labor performed and all materials and 



J. WESTON ALLEN, ATTORNEY-GENERAL. 151 

supplies used, but no charge is to be made for the time of the 
mechanic to and from the job, nor for transportation. 

3, Furnishing gasolene, tires, tubes, oil, batteries and other 
general equipment; the owner to pay for all goods so supplied 
at the market prices prevailing at the time and place of delivery, 
but the company is to make no charge for the delivery. 

4. Furnishing special parts or special equipment for the auto- 
mobile; the owner to pay for goods so supplied at market prices 
prevailing at the time and place of shipment, together with 
freight and express charges to the nearest station of the com- 
pany, but the company is to make no charge for transportation 
of such goods between said station and place of delivery. 

These are the pertinent features of the agreement, so far as 
the question asked is concerned. 

The nature of an insurance contract, both at common law and 
under the statutes of this Commonwealth, has been discussed 
in various opinions of the Attorney-General. I Op. Atty.-Gen. 
33, 37, 153, 164, 345 and 544; II Op. Atty.-Gen. 123, 226, 251 
and 419; III Op. Atty.-Gen. 222; V Op. Atty.-Gen. 206. 

By G. L., c. 175, § 2, a contract of insurance is defined to be 
"an agreement by which one party for a consideration promises 
to pay money or its equivalent, or to do an act valuable to the 
insured, upon the destruction, loss or injury of something in 
which the other party has an interest." 

The essential element of insurance is that the insured receives 
indemnity from loss by reason of the happening of events without 
his control or the control of the insurer. I Op. Atty.-Gen. 544. 

In my opinion, the contract of the Emergency Auto Service 
Company is not one of insurance. The element of hazard is 
wanting. It is an agreement to furnish towing, if necessary, to 
furnish repairs and to furnish automobile goods such as may be 
expected to be incidental to the operation of an automobile, 
through a period of one year. It is obvious that an automobile 
owner will require the services enumerated from time to time 
during such a period. The contract is an agreement to furnish 
such services for a fixed sum. The language used by a former 
Attorney-General is in point in the present case. Construing a 



152 • OPINIONS OF THE ATTORNEY-GENERAL. 

contract by which a company, in consideration of a fixed sum, 
agreed to inspect, repair and maintain electrical machinery, this 
language was used (I Op. Atty.-Gen. 544, 547) : — 

The only element of chance involved is the extent of the repairs which 
may be required. But in this, as in other matters, it is neither hazardous 
nor unusual to undertake continuing work, although somewhat indefi- 
nite in its amount, for a fixed sum. It does not differ from the ordinary 
contracts by which an attorney is annually retained by his chent. 

This line of reasoning has subsequently been followed in II Op. 
Atty.-Gen. 226, and V Op. Atty.-Gen. 206. 

In accordance with the opinions rendered to your department 
by former Attorneys-General, I am of the opinion that the agree- 
ment now under consideration, providing for the services enu- 
merated above, is a contract of service rather than of insurance. 



Civil Service — Chief Matron and Assistant Chief Matron 
— House of Detention in Boston. 

Appointments to the positions of chief matron and assistant chief matron at the 
house of detention in the city of Boston, created by St. 1887, c. 234, § 3, are 
not subject to civil service rules and regulations. 

m?Jk)nw°S You have requested my opinion as to whether or not the positions 

*i92i ^'"^'''*^ of chief matron and assistant chief matron at the house of deten- 

tion in the city of Boston, created by St. 1887, c. 234, § 3, are 

classified under the Civil Service Law and Rules. 

The provisions as to the appointment of the chief matron and 
assistant chief matron at the house of detention in the city of Bos- 
ton are found in section 3 of said chapter 234, This was an act 
providing for the appointment of police matrons in cities, and for 
the establishment of a house of detention for women in the city 
of Boston. The act consisted of six sections, and, with the excep- 
tion of section 3, applied generally to police matrons at police 
stations. The pro^'isions as to police matrons were carried into 
the Revised Laws, and were found in chapter 108, sections 32 to 
35, inclusive. They are now found in G. L., c. 147, §§ 18-21, 
inclusive. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 153 

When the provisions were carried into the Revised Laws, said 
chapter 234, with the exception of section 3, was repealed by R. L., 
c. 227. This section related to the establishment of a house of 
detention in the city of Boston, and contained the provisions as to 
the chief matron and assistant chief matron, etc. The pertinent 
provisions read as follows : — 

The officers of such house of detention shall consist of a chief matron, 
an assistant chief matron, and as many assistant matrons and other 
male and female assistants as said board of police may deem necessary 
for the proper management of the same. The chief matron and assist- 
ant chief matron shall be appointed by the board of police, but no woman 
shall be so appointed unless suitable for the position and recommended 
therefor in writing by at least twenty-five women of good standing, 
residents of the city of Boston; they shall be appointed to hold office 
until removal, and they may be removed at anj^ time by said board by 
written order stating the cause of removal. 

At the time of the passage of said section 3 the Civil Service 
Commissioners, under the provisions of St. 1884, c. 320, were 
authorized to prepare rules not inconsistent with existing laws or 
with the provisions of this act (chapter 320) , and adapted to carry 
out the purposes thereof, for the selection of persons to fill offices in 
the government of the Commonwealth and of the several cities 
thereof, which are required to be filled by appointment, and for 
the selection of persons to be employed as laborers or otherwise 
in the service of the Commonwealth and of the several cities 
thereof. 

Ordinarily, the passage of an act creating appointive positions 
in the government of the Commonwealth, or of the several cities 
thereof, would be subject to the provisions of St. 1884, c. 320 
(R. L., c. 19; G. L., c. 31), for the reason that it is not to be pre- 
sumed that the Legislature intends to repeal or affect general laws 
passed by its predecessors unless there is something in the subse- 
quent act which indicates an intention that the provisions of the 
general law are not applicable. IV Op. Atty.-Gen. 619. 

It necessarily follows that if nothing was said relating to the 
civil service in St. 1887, c. 234, § 3, the positions created by the 
act would be subject to the provisions of the general law relating 



154 OPINIONS OF THE ATTORNEY-GENERAL. 

to the civil service, unless there was inconsistency in their appli- 
cation or some other distinction which indicated an intention 
that the provisions of the general law should not be applicable. 

A former Attorney-General made this statement in an opinion 
(lOp. Atty.-Gen. 71): — 

Without undertaking to lay down anj^ rule of construction applicable 
to all cases, ... it appears to me that the civil service act (St. 1884, 
c. 320) and the rules should, in general be so construed as to distinguish 
between positions of routine, so to speak, which ordinarily do not involve 
administrative or discretionarj^ powers, on the one hand; and, on the 
other, positions which involve the exercise of judgment, discretion, 
authority, and responsibiUty; and that the general scheme is to include 
the former and not to include the latter class within the system. 

The offices and positions to be filled under civil service rules are 
classified in two divisions, the first to be known as the Official 
Service of the Commonwealth and the several cities thereof, the 
second as the Labor Service. I do not find that the chief matron 
and the assistant chief matron at the house of detention in the city 
of Boston have been set forth as one of the classes in the first 
division — the Official Service. 

If the chief matron and assistant chief matron are included in 
the civil service, the question would then arise whether they should 
be included in the Official Service. The Police Commissioner, in 
his letter to you of Jan. 14, 1921, takes the position that neither 
the chief matron nor the assistant chief matron can properly be 
classified under the Labor Service, as they are not charged with 
the duties of matrons in other departments, and are not called 
upon to do manual work. 

In the view that I take of the case, however, it is not necessary 
to consider what would be the proper classification for these 
matrons under the Civil Service Law and Rules. St. 1887, c. 234, 
§ 3, was passed three years subsequent to the civil service law, and 
so far as the positions of chief matron and assistant chief matron 
are concerned, the requisite classifications appear to have been 
established without any apparent purpose to include them within 
the provisions of the civil service law. The appointment to these 



J. WESTON ALLEN, ATTORNEY-GENERAL. 155 

offices is made by the board of police, and the appointee must be 
"suitable for the position." The natural inference would be that 
it was intended that the board having the power of appointment 
would determine whether the appointee was suitable, because, 
if the selection was to be made under the civil service, the express 
provision that the woman must be suitable for the position would 
be unnecessary. 

It is more significant, however, that the appointee must be 
" recommended therefor in writing by at least twenty-five women 
of good standing, residents of the city of Boston." Under the 
Civil Service Law and Rules an applicant for a place in the civil 
service must present recommendations from three persons before 
examination. I am unable to learn of any instance in which, 
under the civil service, the recommendation of twenty-five persons 
is required. If these offices are held to be within the classified 
service, the question might fairly arise whether the recommenda- 
tion of twenty-five persons is required before examination, and, 
if only three recommendations are required before examination, 
whether twenty-five or only twenty-two additional recommenda- 
tions are required after examination. 

The strongest indication, however, that it was not intended that 
these positions should be within the classified service is contained 
in the provision that the appointees "shall be appointed to hold 
office until removal, and they may be removed at any time by 
said board by written order stating the cause of removal." If 
they were appointed under civil service they could not be removed 
at any time by the appointing board merely upon a written order 
stating the cause of removal. 

For the foregoing reasons I am of the opinion that the act of 
1887, so far as it relates to the chief matron and assistant chief 
matron, falls within the exceptions to the general rule, which re- 
quires that a special act shall be held to be subject to the provi- 
sions of a general law previously enacted, and that these two 
positions are therefore not within the classified service. 



156 OPINIONS OF THE ATTORNEY-GENERAL. 



State Highway — Ancient Cilverts — Artificial Stream — 
Easement by Prescription. 

In 1894 the Commonwealth, in laying out and constructing a State highway in 
the town of Holden, rebuilt certain ancient culverts in their same locations, 
and have maintained them during the intervening twenty-seven years. 

If water has been collected into an artificial stream or channel and been cast upon 
an abutter's property during this long period, the Commonwealth has ac- 
quired, by prescription, an easement to cast water on the land in question. 



To the Com- 



missioner's You have asked my opinion on the following set of facts : — 

Public 

1921 
May 3. 



i92i"^ or s. ^ resident of the town of Holden has complained to your de- 



partment that State highway employees have been opening up 
culverts and turning a flow of water onto his property. You state 
that the highway wherein the culverts are located was made a 
State highway in 1894, at which time, in the process of the con- 
struction of a road, the old culverts which then existed were rebuilt 
in the same locations and have been maintained by the Common- 
wealth since that time. This maintenance has consisted of keeping 
the culverts and the outlets clear, so that the water would run 
through and away from the culverts. This clearing permitted and 
caused water from the culverts to flow onto the adjoining land. 
You ask as to the legal right of the Commonwealth to maintain 
these culverts. 

The rights of public authorities with respect to the handling 
of water in connection with highways are covered with thorough- 
ness in a memorandum written for the Massachusetts Highway 
Commission in 1915 by Edwin H. Abbot, Jr., Esq., said memoran- 
dum being entitled "Ways and Waters in Massachusetts," and 
reprinted in the "Harvard Law Review," vol. 28, p. 478. 

Summarizing the law as stated in that memorandum, in so far 
as it is pertinent to the question raised by the complaint aforesaid, 
I would point out that the question must be considered from two 
points of view, to wit: (1) the rule of law that applies if the flow 
of water upon adjoining property is that of surface water; and (2) 
the rule of law where public authorities have gathered surface water 
on the highway into a channel by means of a culvert, and turned 
the channel upon abutting land. 

If the fact is that surface water is being turned upon the premises 



J. WESTON ALLEN, ATTORNEY-GENERAL. 157 

of the abutter, there is no habihty in tort upon the Commonwealth, 
and no action hes for the damage thereby occasioned. Turner v. 
Dartmouth, 13 Allen, 291; Flagg v. Worcester, 13 Gray, 601; 
McMahon v. Holyoke, 226 Mass. 450. 

The Commonwealth is within its right in collecting the surface 
water which gathers within the highway and in discharging it 
upon the plaintiff's land. Kennison v. Beverly, 146 Mass. 467; 
CoUins V. Waltham, 151 Mass. 196; Beats v. Brookline, 174 Mass. 
1, 20; Hewett v. Canton, 182 Mass. 220. The plaintiff's remedy 
in such a case is to erect a barrier on his own land which would 
throw this surface water back upon the highway. Franklin v. 
Fisk, 13 Allen, 211. 

On the other hand, the authorities of the Commonwealth may 
not gather surface water on a highway into a channel and turn the 
channel upon abutting land. Franklin v. Fisk, 13 Allen, 211; 
Daley v. Wateriown, 192 Mass. 116. 

However, in connection with the facts in the case at hand it is 
to be noted that the decisions in this Commonwealth hold that an 
easement to cast water by an artificial stream or channel upon 
adjoining property may be acquired by prescription. White v. 
Chapin, 12 Allen, 516; Bathke v. Gardner, 134 Mass. 14; see also 
Stimson v. Brookline, 197 Mass. 568; Dickinson v. Worcester, 7 
Allen, 19, 22. 

On the facts stated, the culverts in question ivere rebuilt by 
the Commonwealth and have been maintained in the same location 
since 1894, a period of twenty-seven years. If the situation is 
that the water has been collected into an artificial stream or channel 
and cast upon the property in question during this long period, 
the Commonwealth has acquired, by prescription, an easement 
to cast water in that manner. 

Finally, it is to be remembered that the highway statutes make 
provision for those injured by public work in respect of highways, 
and that injury due to surface water has been held a proper ele- 
ment of such damage. So far as the present case is concerned, it 
is only necessary to state that the statutory period within which 
a person, who sustained damage in this respect, might have brought 
a petition for assessment of damages has long since expired. 



158 OPINIONS OF THE ATTORNEY-GENERAL. 



Trust Companies — Issue of Stock — Payment in Cash or 
BY Note — Enforcement of Note — Status of Sub- 
scriber — Scope of Advisory Power of Attorney- 
General. 

The statutes which govern the issue of stock require that such stock shall be paid 

for in cash. 
If stock of a trust company be issued in exchange for a note, the illegality of such 

action is not a defence to enforcement of the note. 
If stock of a trust company be illegally issued for notes, and the company confers 

upon the debtor, and the debtor accepts, the status of stockholder, such 

stockholder may, in a proper case, be assessed as such in addition to the 

liability to pay such notes. 

missioner I havc considcred the facts set forth in your recent letter. It 

1921 is not the function of the Attorney-General to decide cases where 

May 3. . , . "^ . 

the rights of third parties are or may be involved. Cases are best 

determined by actual litigation. See Opinion of the Justices, 122 
Mass. 600; Opinion of the Justices, 237 Mass. 613. Setting aside 
the facts recited by you, I advise you as to certain rules of law 
which may prove applicable, in order that you may determine 
what course you should pursue. 

In my opinion, the statutes require that stock in trust companies 
be paid for in cash. R. L., c. 116, § 5, as amended by Gen. St. 
1916, c. 37; G. L., c. 172, § 18. See also R. L., c. 116, § 33; 
G. L., c. 172, §.39. 

In my opinion, if stock of a trust company be issued in exchange 
for a note, the transaction, though illegal in certain respects, is 
not a nullity, and the trust company, or a receiver thereof, or the 
Commissioner of Banks, who is in effect a statutory receiver, may 
enforce the note. The debtor cannot defend against the note 
given instead of cash, upon the ground that he ought to have paid 
cash at the time the stock was issued. 

If the trust company confers upon such debtor, and the debtor 
accepts, the status of stockholder, he thereby becomes, in my 
opinion, subject to the liabilities of a stockholder. The liability 
of a stockholder to assessment if the assets of the trust company 
are insufficient to pay its debts is not in nature different from the 
obligation to pay for the stock. One who has assumed the liabili- 



J. WESTON ALLEN, ATTORNEY-GENERAL. 159 

ties of a stockholder cannot, in my opinion, defend a suit to enforce 
an assessment upon the stock upon the ground that he illegally 
failed to pay for the stock in cash, as required by law. It is un- 
necessary to determine at the present time what action a solvent 
trust company might take to terminate the right of the stock- 
holder to the stock in case he failed to meet his obligation to pay 
for it. 

If the court should find that the purported cancellation of notes 
and stock was a fraud upon creditors and other stockliolders, such 
cancellation would defeat neither an action to enforce the notes 
given for the stock nor an assessment upon such stock. In my 
opinion, such a finding might be made upon the facts stated in 
vour letter. 



Taxation — Legacy and Succession Tax — Gift to Wife of 
Promissory Note, 

Prior to the enactment of St. 1920, c. 478, a gift by a husband to his wife of a 
promissory note took effect on his death, and the property was subject to a 
legacy and succession tax. 

A decedent, resident of Massachusetts, being the payee of a To the com- 

• "^ 1 (• missioner of 

promissory note, in a conversation with his wife some time before Corporations 

. . and Taxation. 

his death stated that he gave the note to her and she replied that jj^2i^ 
she was willing. He retained the note in his possession, and it was 
found among his effects after his death, at which time it was long 
overdue. You ask my opinion whether said note is subject to a 
legacy and succession tax. 

I assume that a valid gift may be made inter vivos of a promissory 
note payable to the order of the donor without formal endorsement 
or assignment, where the instrument itself is delivered. Grover 
v. Grover, 24 Pick. 261 ; Herbert v. Simsoti, 220 Mass. 480. 

But in the present case the attempted gift was from a husband 
to his wife. The common-law rule in Massachusetts has always 
been that personal property given by a husband to his wife remains 
the property of the husband during his lifetime; but that on his 
death, if the gift has not previously been revoked, the title passes 
to the widow as against his executor, if rights of creditors are not 



160 OPINIONS OF THE ATTORNEY-GENERAL. 

impaired. Thomson v. O'Sidlivan, 6 Allen, 303; Marshall v. 
Jaquith, 134 Mass. 138; Brown v. Brown, 174 Mass. 197; Ginn v. 
Almy, 212 Mass. 486, 497. As is said in Marshall v. Jaquith, 
swpra, p. 140, " between husband and wife the requisites and effects 
of gifts inter vivos and causa mortis are nearly identical." 

Recently, by statute, this rule has been changed. St. 1920, 
c. 478, approved May 19, 1920 (G. L., c. 209, § 3), amends R. L., 
c. 153, § 3, by substituting the following: — 

Gifts of personal property between husband and wife shall be valid 
to the same extent as if they were sole. 

As the decedent died prior to the date of the enactment of that 
statute, obviously it is not applicable. 

The question whether the note referred to is subject to a legacy 
and succession tax depends upon the provisions of Gen. St. 1916, 
c. 268, which were in force at the time of the death of the decedent. 
Section 1 of said act provides, in part: — 

All propert}' within the jurisdiction of the commonwealth, corporeal 
or incorporeal, and any interest therein, belonging to inhabitants of the 
commonwealth, . . . which shall pass by will, or by the laws regulating 
intestate succession, or by deed, grant or gift, except in cases of a bona 
fide purchase for full consideration in money or money's worth, made 
or intended to take effect in possession or enjoyment after the death of 
the grantor or donor, ... to any person, absolutely or in trust, . . . 
shall be subject to a tax as follows: — ... 

It is my opinion that the note in question, the title to which 
passed by gift at the moment of the death of the donor, prior to the 
enactment of St. 1920, c. 478, is property subject to the tax pro- 
vided for by Gen. St. 1916, c. 268, § 1. See Neio England Trust 
Co. v. Ahhott, 205 Mass. 279, 282; State Street Trust Co. v. Treasurer 
and Receiver-General, 209 Mass. 373, 378. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 161 



Juvenile Offenders — Custody — Term of Detention — 

Parole. 

A boy transferred from the Massachusetts Reformatory to the Industrial School 
for Boys, or a girl transferred from the Reformatory for Women to the Indus- 
trial School for Girls, under G. L., c. 120, is in the custody of the institution 
to which he or she is transferred. 

Such transfer does not operate to extend the term for which the boy or girl was 
originally committed; when the term expires the inmate should be dis- 
charged, but if the term extends beyond the minority of the child, the child 
should be returned to the reformatory. 

Boys and girls so transferred may be paroled only in accordance with G. L., 
c. 120, § 21. 

You ask my opinion regarding the status of a boy who is trans- To the Com- 

o 11 i"^/^ •• p r^ • p 'iT»T i missioner of 

lerred bv the Commissioner or Correction irom the JVlassachu- Public Welfare. 

1921 

setts Reformatory to the Industrial School for Boys, or of a girl ^^y 6- 
who is transferred from the Reformatory for Women to the In- 
dustrial School for Girls, (1) with respect to the legal custody of 
such child, (2) with respect to the term of detention, and (3) with 
respect to the custody if paroled. 

(i) Legal Custody. 
G. L., c. 120, § 15, provides as follows: — 

With the consent of the trustees the commissioner of correction may 
transfer to the industrial school for boys any boy under seventeen sen- 
tenced to the Massachusetts reformatory, or to the industrial school for 
girls any girl under seventeen sentenced to the reformatory for women. 

There is no express provision in respect to the custody of a child 
so transferred. 

It is, however, plainly to be inferred from the provisions of said 
chapter 120 that all such children are in the custody of the institu- 
tion to which they are transferred. Section 4 requires the trustees 
to establish rules, regulations and by-laws for the instruction and 
discipline of the inmates of each institution, to provide employ- 
ment, education and training for them, to parole, discharge or 
remand them as provided in said chapter, and to exercise a vigilant 
supervision over them. Section 5 requires the trustees to provide 
for the instruction of boys and girls in such institutions. Section 



162 OPINIONS OF THE ATTORNEY-GENERAL. 

7 provides that " the superintendent of each school with the subor- 
dinate officers shall have general charge and custody of the inmates 
thereof,'' and requires him, under the direction of the trustees, 
to "discipHne, govern, instruct and employ and use his best en- 
deavors to reform the inmates." Section 16 provides, in part, as 
follows : — 

The trustees may transfer any person committed or trdiisf erred to 
the industrial school for boys or to the Lyman school for boj's, still in 
the custody of said trustees, who has proved unmanageable or an improper 
person to remain in either of the said institutions, to the Massachusetts 
reformatory; and in the same way may transfer any person committed 
or transferred to the industrial school for girls, still in the cuMody of the 
trustees, to the reformatorj'' for women. . . . 

Section 17 provides as follows: — 

The legal custody for the remainder of his or her minority of any 
boy or girl transferred to the Massachusetts reformatory or to the re- 
formatory for women by the trustees is thereby surrendered by them, 
and shall thereafter be in the institution to which the transfer has been 
made. 

G. L., cc. 124-127, relating to prisons, imprisonment, paroles 
and pardons, contain no provisions with respect to transfers from 
said reformatories to said industrial schools. See especially chap- 
ter 127, sections 97-115, inclusive. 

(2) Term of Detention. 
G. L., c. 120, § 15, is derived from St. 1908, c. 639, § 4, and from 
Gen. St. 1918, c. 100. St. 1908, c. 639, is entitled "An Act to 
provide for the establishment of the Industrial School for Boys." 
Section 4 contained the following provision : — 

With the consent of the trustees, the prison commissioners may re- 
move to said industrial school any boy under the age of seventeen years 
who is sentenced to the Massachusetts reformatory. When a boy is 
removed or returned under this act, all mittimuses, processes and other 
official papers, or copies thereof, by which he is held, shall be removed or 
returned with him; and he may he held in the institution to which he is 
removed or returned until the expiration of the term for ivhich he was origi- 
nally committed. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 163 

The clause in italics does not appear in the General Laws. 

Gen. St. 1918, c. 100, is entitled "An Act providing for the 
transfer of certain inmates from the Reformatory for Women to 
the Industrial School for Girls," and provides as follows: — 

With the consent of the trustees of the Massachusetts training schools, 
the director of prisons may remove to the industrial school for girls any 
girl under the age of seventeen years who has been sentenced to the 
reformatory for women. Any person so transferred shall be accom- 
panied by all mittimuses and processes in the case, by a copy of the 
medical report and by the facts covering the history and conduct of the 
person and the home circumstances of such person, so far as they can 
be ascertained. 

G. L., c. 120, § 13, provides, in part: — 

All boys and girls committed to the Lyman school, the industrial 
school for boys or the industrial school for girls shall be there kept, 
disciplined, instructed, emploj^ed and governed, under the direction 
of the trustees, until they become twenty-one or are paroled, legally 
transferred or discharged. 

There is no statutory provision of which I am aware which 
extends the term of detention of a boy or girl transferred from such 
reformatory to such industrial school. It is my opinion that such 
transfer does not operate to extend the term for which the boy or 
girl was originally committed, and that when the term expires the 
inmate should be discharged. But if the term of detention in any 
case extends beyond the minority of such child, the child should 
be returned to the reformatory to which he or she was originally 
committed. 

(J) Custody if Paroled. 

Since boys and girls transferred from the reformatories to the 
industrial schools under the provisions above referred to are, as 
I have advised you, in the custody of the particular institution 
to which they are transferred, it follows clearly that they may be 
paroled only in accordance with the provisions of chapter 120, 
section 21, which provide for the release on parole of children in 
such custody, and for the resumption by the trustees of the care 
and custody of children released on parole. 



164 OPINIONS OF THE ATTORNEY-GENERAL. 



Accounts of Institutions — Approval by Trustees or Com- 
missioner OF Department — Aut)itor. 

Accounts of sales of property by an officer of a State institution may be approved 
by the head of the department having supervision and control of the insti- 
tution, or by the trustees or other supervising board or officer. 

Requirements for approval of bills for articles furnished and expenses incurred 
in such institutions depend on particular statutory provisions relating to each 
institution, which are quoted or referred to and considered. 

By G. L., c. 11, § 7, the Auditor is authorized to require affidavits with respect to 
such expenditures, to be made by the disbursing officers of the various 
institutions. 

Auditor. You ask mv opinion whether it is necessary for the trustees of 

1921 . *^ . 

May 9. the various institutions of the Commonwealth to approve bills for 

expenditures and returns of sales, or whether you would be justi- 
fied in accepting the approval of the commissioner of the depart- 
ment in which such institutions are placed. 

G. L., c. 11, § 7, defining the duties of the Auditor, is, in part, 
as follows : — 

He shall examine all accounts and demands against the Common- 
wealth, excepting those for the salaries of the governor and of the jus- 
tices of the supreme judicial court, for the pay rolls of the executive 
council and members of the general court, and those due on account of 
the principal or interest of a public debt. He may require affida^'its that 
articles have been furnished, services rendered and expenses incurred, 
as claimed. Such affidavit for any institution shall be made by the dis- 
bursing officer thereof. ... If the general court, bj^ express statute, 
authorizes a department or public officer to approve accounts or de- 
mands against the commonwealth, and an appropriation therefor has 
been made, the auditor shall, when such accounts or demands have been 
properly approved, promptly audit and certify such an amount, not 
exceeding the appropriation therefor, as he may deem correct; . . . 

G. L., c. 30, § 41, provides as follows: — 

If sales of property of the commonwealth are made by any officer 
of a state institution, the superintendent thereof shall submit to the 
trustees or other supervising board or officer an itemized account, on 
oath, of such sales, for their approval in the same manner as accounts 
for materials and supplies for such institutions are approved, and such 
account shall be filed with the state treasurer when the proceeds are 
paid over to him. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 16^5 

So far as concerns accounts of sales of property, it is my opinion 
that such accounts may be approved by the head of the depart- 
ment liaving supervision and control of a State institution, or by 
the trustees or other supervising board or officer, and that you 
may accept accounts so approved. 

I find no provision which in general terms expressly requires the 
approval by any supervising board or officer of bills for articles 
furnished and expenses incurred, although by G. L., c. 11, § 7, the 
Auditor is authorized to require an affidavit with respect to such 
expenditures, which, in the case of any institution, must be made 
by the disbursing officer thereof. I am of opinion, therefore, that 
the particular statutory provisions relating to each institution 
must be examined, and that the answer in each case will depend 
upon the nature of those provisions. In that connection the pro- 
vision, above quoted, in G. L., c. 11, § 7, requiring the Auditor, 
where " the general court, by express statute, authorizes a depart- 
ment or public officer to approve accounts or demands against the 
commonwealth, and an appropriation therefor has been made," 
to audit and certify such accounts or demands when properly 
approved, should be noticed. 

The various State institutions to which reference should be made 
are under the supervision and control of the Department of Educa- 
tion, the Department of Public Health, the Department of Public 
Welfare, or the Department of Mental Diseases. 

Institutions in the Department of Education. 
G. L., c. 15, contains provisions relative to the Department of 
Education. Section 1 provides that the department shall be under 
the supervision and control of a commissioner of education and 
an advisory board, and section 4 provides that the commissioner 
shall be the executive and administrative head of the department. 
Section 19 provides as follows: — 

The trustees of the Massachusetts Agricultural College, the board of 
commissioners of the Massachusetts Nautical School, the trustees of, 
the Bradford Durfee Textile School of Fall River, the trustees of the, 
Lowell Textile School and the trustees of the New Bedford Textile. 
School shall serve in the department. 



166 OPINIONS OF THE ATTORNEY-GENERAL. 

Sections 20 to 23 contain provisions with respect to the member- 
ship of the boards of trustees of said Massachusetts Agricultural 
College and said textile schools and of the board of commissioners 
of the Massachusetts Nautical School. 

G. L., c. 74, § 42, provides that the New Bedford Textile School, 
the Bradford Durfee Textile School of Fall River and the Lowell 
Textile School shall be State institutions, and the following sec- 
tions contain references to the board of trustees of each of said 
schools. There is no provision relating to the approval of accounts 
for expenditures. 

G. L., c. 74, §§ 49-51, provide for the maintenance of the Massa- 
chusetts Nautical School by a board of commissioners. Said 
sections contain no provisions with reference to the approval of 
accounts. 

G. L., c. 75, § 1, provides as follows: — 

The Massachusetts Agricultural College shall continue to be a state 
institution. 

Section 5 provides as follows : — 

Expenditures for maintenance shall be authorized bj^ the trustees 
or b}^ their duly appointed committee. The expenditure of special 
appropriations shall be directed by such trustees, and shall be author- 
ized and accounted for as are appropriations for maintenance. 

There is no provision which requires the approval of accounts 
by the trustees. 

I am of opinion that accounts of institutions under this heading, 
approved by the Commissioner of Education as supervising officer, 
may be accepted by you, although you may require affidavits as 
provided in G. L., c. 11, § 7. 

Institutions in the Department of Public Health. 
G. L., c. 17, relates to the Department of Public Health. Section 
2 provides that the commissioner shall be the executive and 
administrative head of the department. Section 8 provides as 
follows : — 



J. WESTON ALLEN, ATTORNEY-GENERAL. 167 

The division of sanatoria shall include the state sanatoria at Rutland, 
North Reading, Lakeville and Westfield. The commissioner may also 
place the Penikese hospital in said division. 

G. L., e. Ill, §§ 68-69, relate to the State sanatoria and the 
Penikese Hospital. They provide that the commissioner shall 
have general supervision and control of those institutions. They 
contain no provisions relating to the approval of accounts. 

It is my opinion that you may accept the accounts of such 
institutions when approved by the Commissioner of Public Health. 

Instiiutions in the Department of Public Welfare. 

G. L., c. 18, relates to the Department of Public Welfare. Sec- 
tion 2 provides that the department shall be under the supervision 
and control of a commissioner of public welfare and an advisory, 
board. Sections 8, 10, 11, 12 and 13 contain provisions with refer- 
ence to the membership of boards of trustees of the State Infirmary, 
the Massachusetts Hospital School and the Massachusetts Train- 
ing Schools. 

G. L., c. 120, relates to the Massachusetts Training Schools. 
Sections 1 to 6, inclusive, state the powers and duties of the 
trustees. I find no section requiring the accounts of those institu- 
tions to be approved by the trustees, 

G. L., c. 121, §§ 28-37, relate to the Massachusetts Hospital 
School, and contain provisions defining the powers and duties of 
the trustees. 

Section 28 provides, in part, as follows: — 

. . . The board of trustees of said school shall have the same powers 
and shall be required to perform the same duties in the management 
and control of the school as are vested in and required of the trustees of 
the various state hospitals under chapter one hundred and twenty-three, 
so far as applicable. 

G. L., c. 123, § 32, provides that — 

All accounts for the maintenance of each of the state hospitals shall 
be approved bj^ the trustees thereof and filed with the state auditor, . . . 



168 OPINIONS OF THE ATTORNEY-GENERAL. 

G. L., c. 122, contains provisions relating to the State Infirmary 
and the powers and duties of the trustees. Section 1 contains the 
following provision : — 

. . . The trustees shall audit and approve the accounts and bills of 
the superintendent before payment. . . . 

Section G contains the following provision : — 

All accounts for the maintenance of the state infirmar,y and the sup- 
port of the inmates shall be approved by the trustees and filed with the 
state auditor at the end of each month. 

I am of opinion that by virtue of the provisions above quoted the 
accounts and bills for the maintenance of the Massachusetts 
Hospital School and of the State Infirmary should be approved by 
the trustees of those institutions before they are approved by you, 
but that with respect to the other institutions such appro^'al of 
the trustees is not necessary. 

Institutions in the De'partment of Mental Diseases. 
G. L., c. 19, relates to the Department of Mental Diseases. 
Section 4 provides that the commissioner shall be the executive 
and administrative head of the department. Section 5 is as 
follows : — 

The boards of trustees of the following public institutions shall serve 
in the department: Boston Psychopathic Hospital, Boston State Hos- 
])ital, Dan^'ers State Hospital, Foxborough State Hospital, Gardner 
vState Colony, Grafton State Hospital, Massachusetts School for the 
Feeble-minded, Medfield State Hospital, Monson State Hospital, Nor- 
folk State Hospital, Northampton State Hospital, Taunton State Hos- 
pital, Westborough State Hospital, Worcester State Hospital and Wren- 
tham State School. 

Section 6 provides for the membership of the boards of trustees 
of each of said institutions. 

G. L., c. 123, § 25, provides that the State institutions under 
the control of the department shall be those institutions stated 
in G. L., c. 19, § 5. Sections 26-32, inclusive, contain provisions 



J. WESTON ALLEN, ATTORNEY-GENERAL. 169 

defining the powers and duties of the trustees of said State institu- 
tions. Section 32 provides as follows: — ■ 

All accounts for the maintenance of each of the state hospitals shall 
be approved bj^ the trustees thereof and filed with the state auditor, 
and shall be paid by the commonwealth. Full copies of the pay rolls 
and bills shall be kept at each hospital. 

I am of opinion that by virtue of said provision the accounts of 
all said State hospitals must be approved by the trustees thereof 
before they are approved by you. 

The foregoing examination of the laws relating to the various 
departmental institutions discloses no established policy with 
respect to the requirements for approval of accounts for expendi- 
tures, and no reason is apparent why in some instances approval 
by the trustees of expenditures is required and in other cases pay- 
ment of expenditures is not made subject to their approval. 

Under the authority vested in you by G. L., c. 11, § 7, you 
would be justified, in lieu of approval by the trustees, in requiring 
the affidavit of the disbursing officer for expenditures in those in- 
stitutions where approval by the trustees is not made a prerequisite 
of payment. 



Power to Compromise a Claim dve to the Commonwealth — 
Treasurer and Receiver-General — Power of Attor- 
ney-General to compromise a Pending Case. 

Authority to compromise a claim due to the Commonwealth is not ordinarily 
incident to the power of an executive officer. 

The Treasurer and Receiver-General has no power to compromise claims due to 
the Commonwealth. 

Under G. L., c. 12, § 3, the Attorney-General has incidental power, in the exercise 
of a sound discretion, to compromise a civil proceeding in which the Com- 
monwealth is a party or is interested. 

You have asked my opinion upon the following questions : — To the 

Receiver- 

1. Whether the Treasurer and Receiver-General has power to com- 1921^' 
promise a claim due to the Commonwealth, if in the exercise of a sound ^^^ll^' 
discretion he determines that such compromise is financially more bene- 
ficial to the Commonwealth than to prosecute the claim. 



170 OPINIONS OF THE ATTORNEY-GENERAL. 

2. Whether the Attorney-General, after the commencement of pro- 
ceedings, may compromise an action brought upon behalf of the Com- 
monwealth to enforce a claim due to it. 

1. Authority to compromise a claim due to the Commonwealth 
is not ordinarily incident to the power of an executive officer. 
]]'m. Cramj) & Sons, tic, Co. v. Vnited States, 216 U. S. 494; 
Disfrict of Cohimbia v. Bailey, 171 U. S. 161, 176. It is significant 
that where the Legislature has intended to confer this power it 
has done so by express enactment. G. L., c. 58, § 27; c. 59, §§ 58, 
71 and 72; c. 63, § 71 ; c. 65, § 14. Examination has not disclosed 
any statute which confers authority upon the Treasurer and 
Receiver-General to compromise claims due to the Commonwealth. 
In my opinion, he does not possess this power. 

2. By G. L., c. 12, § 3, the Attorney-General represents the 
Commonwealth in all suits and other civil proceedings in which 
the Commonwealth is a party or is interested. This necessarily 
confers authority to conduct such suits and proceedings in such 
manner as he, in the exercise of a sound discretion, shall deem to be 
for the best interests of the Commonwealth. He possesses, further, 
not only those powers which have been declared and defined by 
statute, but also those powers which are incident to the office at 
common law. Parker v. May, 5 Cush. 336, 338-340; Attorney- 
General V. Parker, 126 IMass. 217, 219; McQiiesien v. Attorney- 
General, 187 Mass. 185. Although the Attorney-General of the 
United States draws his powers wholly from statute, his statutory 
authority to control suits in which the United States is a party 
or is interested carries incidental power to compromise such 
litigation. Co7ifiscation Cases, 7 Wall. 454, 458; 2 Op. A. G. 
(U. S.) 482, 486; 22 Op. A. G. (U. S.) 491, 494. A United States 
district attorney does not possess this power except under special 
circumstances. Uiiited States v. Beebe, 180 U. S. 343. I am unable 
to believe that the authority of the Attorney-General of the Com- 
monwealth is more restricted in this particular than that of the 
Attorney-General of the United States. In my opinion, the At- 
torney-General of the Commonwealth may, in the exercise of a 
sound discretion, compromise a civil suit or proceeding in which 



J. WESTON ALLEN, ATTORNEY-GENERAL. 171 

the Commonwealth is a party or is interested. If this were not so, 
the Commonwealth would be at a disadvantage as compared with 
other litigants in any case where a compromise beneficial to the 
Commonwealth could be effected. 



Commonwealth — Payment by Check — Mailing — Dupli- 
cate Check. 

The mailing of a letter containing a check to the person entitled to receive it does 
not constitute payment, unless by the payee's express direction or assent, 
the usual course of dealing between the parties, or through facts from which 
such direction or assent may be inferred, the paj'ee has authorized the money 
to be thus delivered to him. 

Where the Treasurer and Receiver-General mailed a check to the payee without 
express or inferred authority, and the payee, whose endorsement was forged, 
was not negligent in giving notice of the forgery, or, if negligent, the Com- 
monwealth was not injured by such negligence, a duplicate check should be 
issued. 

Such checks can be issued only on warrant in the usual manner. 

You request my opinion relative to your authority to issue a To the 

II- it' 11 1 1 •• f r^ ni Treasurer and 

duphcate check, payable under the provisions or Gen. bt. 1919, Receiver- 
General. 

c. 283, in cases where the original check was never received by the T^^^\n 
payee, and was unlawfully obtained by some person who forged 
the payee's endorsement and cashed the check. 

The facts, as stated in your letter, are that upon application a 
check for $100 was issued to a person entitled to receive it, under 
the provisions of the foregoing statute, drawn on the National 
Shawmut Bank and sent to the payee on Oct. 23, 1919. The 
check was returned to you as paid by the National Shawmut 
Bank on Oct. 29, 1919. On April 21, 1921, the payee inquired 
about his check and informed you that the endorsement on the 
paid check was a forgery. This you accept as a fact. You orally , 
informed me that neither this payee nor the other persons entitled 
to the payment of $100 under the provisions of the act authorized 
you expressly or impliedly to mail the checks to them, but you 
established a regulation, in the interest of safety with respect to 
identity, that the checks be sent to them by mail. 

Gen. St. 1919, c. 283, as amended by St. 1920, c. 250, and by 
St. 1921, cc. 326 and 354, provides that the sum of $100 "shall be 



i"2 OPINIONS OF THE ATTORNEY-GENERAL. 

allowed and paid out of the treasury of the Commonwealth" to 
certain classes of individuals. This is mandatory. 

Depositing in the post office a letter containing a check and 
addressed to the person entitled to receive it does not constitute 
payment, unless by the payee's express direction or assent, the 
usual course of dealing between the parties, or other facts from 
which such direction or assent may be inferred, the payee has 
authorized the money to be thus delivered to him. Buell v. 
Chapin, 99 Mass. 594; Campbell v. Knights of Pythias, 168 Mass. 
397, 400; Shea v. Mass. Benefit Assn., 160 Mass. 289, 295; Morgan 
v. Richardson, 13 Allen, 410; Gurney v. Howe, 9 Gray, 404. 

You were not notified of the forgery until eighteen months 
after the check was cashed. Unless there was negligence in failing 
to discover the forgery or in failing to notify you immediately 
after the discovery, and the Commonwealth can show that it was 
injured by reason of such negligence, the delay is of no consequence 
and cannot prevent recovery. Murphy v. Metropolitan Natl. 
Bank, 191 Mass. 159, 165; A. Blum Jr.'s Sons v. Whipple, 194 
Mass. 253, 258; Jordan Marsh Co. v. National Shawmut Bank, 201 
Mass. 397,411. 

I am therefore of the opinion that the Treasurer and Receiver- 
General should issue a duplicate check payable under Gen. St. 
1919, c. 283, in cases where he is satisfied that there was no express 
or inferred authority to mail the check, and where he is of the 
opinion that the payee was not negligent in failing to give earlier 
notice to the Treasurer and Receiver-General of the forgery, or, 
if negligent, that the Commonwealth was not injured by such 
negligence. Such checks can be issued only on warrant in the 
usual manner. Mass. Const., pt. 2d, c. II, § 1, art. XI; Opinion 
• of the Justices, 13 Allen, 593. 



I 



J. WESTON ALLEN, ATTORNEY-GENERAL. 173 



Savings Banks — Authorized Investments — Commissioner 

OF Banks. 

It is the duty of savings banks subject to G. L., c. 168, to determine the legality of 
proposed investments in bonds of gas, electric or water companies, under 
G. L., c. 168, § 54, cl. 6, and of the Commissioner of Banks, under G. L., 
c. 167, §§2 and 5, to determine whether the statutory provisions have been 
complied with. 

There is no provision giving to the Department of Public Utilities authority to 
decide whether bonds of such companies which have been issued may or may 
not be purchased by savings banks. 



You ask me to advise you whether the Department of Public xotheCom- 
Utilities, Commissioner of Banks or the savings banks should of Banks. 

. • . . 1921 

decide the legality of bonds of gas, electric or water companies as May le . 
an investment for savings banks under the provisions of G. L., 
c. 168, § 54, cl. 6. 

Said section and clause provide as follows : — 

Section 54. Deposits and the income derived therefrom shall be 
invested only as follows: 

Sixth. In the bonds of a gas, electric or water company secured by 
a first mortgage of the franchise and property of the company: pro- 
vided, that the net earnings of the company, after payment of all oper- 
ating expenses, taxes and interest, as reported to, and according to the 
requirements of, the proper authorities of the commonwealth, have been 
in each of the three fiscal years preceding the making or renemng of 
such loan equal to not less than four per cent on all its capital stock 
outstanding in each of said years; and, provided, that the gross earnings 
of the company in the fiscal year preceding the making or renewing of 
the loan have been not less than one hundred thousand dollars. 

By section 2 of said chapter it is provided, in part, that — 

Savings banks incorporated or doing business in the commonwealth 
shall be subject to this chapter so far as is consistent with the provisions 
of their respective charters; . . . 

There can be no doubt but that it is the duty of savings banks 
subject to chapter 168 to determine the legality of any proposed 



174 OPINIONS OF THE ATTORNEY-GENERAL. 

investment in the bonds of a gas, electric or water company under 
the provisions of said clause sixth. 

G. L., c. 167, § 2, provides, in part, that — 

The commissioner, either personally or by his deput.v or examiners, or 
such others of his assistants as he may designate, shall, . . . visit each 
bank, . . . and ascertain whether it has comphed with the law. 

Section 5 of said chapter provides, in part, that — 

If, in the opinion of the commissioner, a bank or its officers or trustees 
have violated any law relative thereto, he maj" forthwith report such 
violation to the attorney general, who shall forthwith, in behalf of the 
commonwealth, institute a prosecution therefor. . . . 

Clearly, it is the duty of the Commissioner to determine whether, 
with respect to investments in the bonds of gas, electric or water 
companies by savings banks, they have complied with the provi- 
sions of G. L., c. 168, § 54, cl. 6. 

G. L., c. 164, §§ 14 and 15, regulate the issue of stock and bonds 
by gas and electric companies, and make them subject to the 
supervision and approval of the Department of Public Utilities. 
There is, however, no provision in the statutes giving to that de- 
partment any authority to decide whether or not bonds of such 
companies which have been issued may or may not be purchased 
by savings banks. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 175 



COX.STITUTIOXAL LaW — PoWER OF LEGISLATURE TO RATIFY ACTS 

OF City Officials done under an Unconstitutional 
Charter — When a Local Act may be limited to take 
Effect under the Forty-eighth Amendment. 

The Legislature may properly repeal a city charter which is void because of fail- 
ure to comply with the Second Amendment. 

An act which purports to ratify acts done by city officials under a void city charter 
should expressly limit such ratification to matters within the constitutional 
power of the Legislature. 

A bill whose operation is restricted to a particular town, city or other political 
subdivision may be made to take effect upon its passage, since it is not sub- 
ject to a referendum under Amend. XLVIII. The Referendum, pt. Ill, § 2. 

You have inquired whether House Bill No. 1535, entitled "An Tothe 
Act ratifying and validating certain acts of the town of Methuen," 1921 



would be constitutional if enacted into law. 

Section 1 of the proposed bill repeals Spec. St. 1916, c. 116, 
which provided for precinct voting, limited town meetings, town 
meeting members, and divers other matters in the town of Me- 
thuen, and also repeals Spec. St. 1917, c. 289, which purported 
to erect the town of INIethuen into a city. Both said special acts 
have been held to be unconstitutional and void for failure to comply 
with jurisdictional requirements imposed by Mass. Const. Amend. 
II. Attorney-General \. Methuen, 236 Mass. 564; see also Opinion 
of the Justices, 229 Mass. 601. No question can be made that the 
Legislature may properly remove these two void enactments from 
the statute books. 

Sections 2 and 3 of the proposed bill provide, in substance, that 
"all acts done, elections held and votes passed" under the pro- 
visions and within the scope of general law or of said special 
statutes, with certain exceptions not here material, "are hereby 
ratified, confirmed and made valid." Section 4 ratifies all acts of 
certain selectmen of Methuen in incurring indebtedness and mak- 
ing payments on behalf of the town between certain dates. Section 
5 confirms a certain election. Section 6 provides that the act shall 
take eft'ect on its passage. 

As the bill defines by general description the acts, elections and 
votes to be ratified and confirmed, it is impossible for me, in the 



May IS. 



176 OPINIONS OF THE ATTORNEY-GENERAL. 

absence of the facts, to advise Your Excellency as to whether the 
bill or some provision thereof extends to and includes some matter, 
thing or transaction which the Legislature may not have con- 
stitutional power to make valid. If such be the fact (which I do 
not intimate), a question would arise whether the whole bill would 
be unconstitutional, or whether the unconstitutional provision 
(if such there be) is severable. To guard against this possibility, 
I suggest that it would be expedient to insert a new section to the 
following effect : — 

This act shall apply only in so far as the general court has constitu- 
tional power in the premises. 

If such a provision be inserted, it would, in my opinion, enable 
the Legislature to exert its broad power to validate the acts of 
municipalities, in so far as it is not restrained by constitutional 
limitations. 

As the bill is one whose operation "is restricted to a particular 
town, city or other political division," within the meaning of 
Mass. Const. Amend. XL VIII, The Referendum, pt. Ill, § 2, it 
is not subject to a referendum petition, and may properly be made 
to take effect upon its passage without inserting an emergency 
preamble. Section 6 of the present bill may, therefore, be retained 
as section 7 if the suggested provision be inserted as section 6. 



Fisheries and Game — Right of Property — Extension of 
Privilege to use Fisheries. 

The State exercises not only the right of sovereignty, but also the right of property, 
as to its fisheries and game. 

A State may prohibit the citizens of another State from using its fisheries. 

An act extending the privilege of using fisheries to aliens who meet certain require- 
ments is constitutional. 

Co^iuee^^ You rcqucst my opinion as to the constitutionality of a proposed 
°'i92i"^" act entitled "An Act relative to the granting of licenses for the 

'- " catching of lobsters." 

The bill, if enacted, will amend the present statute by enabling 
" individuals who are aliens and who have resided in the Common- 



J. WESTON ALLEN, ATTORNEY-GENERAL, 177 

wealth and have been actually engaged in lobster fishing therein 
for five years next preceding the date of the license" to obtain 
licenses to catch or take lobsters from the waters of the Common- 
wealth within three miles of the shore. The bill would enlarge 
the class of persons to whom such licenses may now be granted. 

The State exercises not only the right of sovereignty, but also 
the right of property, as to its fisheries and game. Legislation 
regulating and controlling the fisheries is, in effect, nothing more 
than a regulation of the use by the citizens of their common 
property, and is constitutional. Patsone v. Pennsylvania, 232 
U. S. 138; Geerv. Connecticut, 161 U. S. 519; McCreadyv. Virginia, 
94 U. S. 391; Commomceahh v. Hilton, 174 Mass. 29; Common- 
wealth V. Vincent, 108 Mass. 441. A State may prohibit citizens 
of another State from using its fisheries. McCready v. Virginia, 
94 U. S. 391. It follows that a State may constitutionally extend 
the privilege of using its fisheries to aliens who meet certain 
requirements. 

In my opinion, therefore, this bill, if enacted, would be con- 
stitutional. 

Altomobiles — Operation — Lights. 

An automobile parked on a highway, with no one in charge, is being "operated," 

within the purview of G. L., c. 90, § 7. 
The display by such automobile of a single white light during the period from 

one-half an hour after sunset to one-half an hour before sunrise does not 

comply with the statute. 

You request my opinion as to whether the display by an auto- To the Com- 

. missioner of 

mobile of a single park light, showmg one red light to the rear PuMc works. 
and one white light to the front, complies with the requirements ^ay 20 . 
of the law relative to display of lights, if the car is parked on the 
highway with no one in charge. 

G, L., c. 90, § 7, provides, in part: — 

Every automobile operated during the period from one half an hour 
after sunset to one half an hour before sunrise shall display at least two 
white lights, or lights of yellow or amber tint, . . . which shall be visible 
not less than two hundred feet in the direction toward which the vehicle 
is proceeding; and every such motor vehicle shall display at least one 
red light in the reverse direction. 



178 OPINIONS OF THE ATTORNEY-GENERAL. 

In the case of CommonweaUh v. Henry, 229 Mass. 19, the court, 
in considering practically the same provision of law, said, at pages 
21 and 22: — 

The statute under which the complaint is drawn was enacted largely 
for the protection of travellers upon highways, by guarding against 
collisions with automobiles after dark when it would be difficult or im- 
possible to know of their presence. The question is. whether a motor 
car which is left standing upon a highway after dark without lights and 
with the engine at rest can be found to be "operated" within the mean- 
ing and intent of the statute. 

It is obvicjus that a motor car standing upon a highway under such 
conditions may be fully as great a menace to the safety of travellers as 
if running upon the way without lights, and that the danger of serious 
injury to travellers by coming in contact with such a car would be verj' 
great. . . . 

The statute must be read with reference to its manifest intent and 
spirit and cannot be limited to the literal meaning of a single word. It 
must be construed as a whole and interpreted according to the sense in 
which the words are employed, regard being had to the plain intention 
of the Legislature. So considered, we cannot doubt that the statute is 
broad enough to include automobiles at rest, as well as in motion, upon 
the highways. 

In construing a similar statute the Supreme Court of the State 
of Washington said, in Jaquith v. Worden, 73 Wash. 349, 360: — 

An automobile does not cease to be "driven" when stopped or left 
standing on a pubUc highway during the hours of darkness. It cannot 
be said that the driver of such a machine must carry lights while it is 
moving, but that he may stop it during the hours of darkness in the 
roadway, turn off the lights, and leave it standing, without violating the 
law. The statute must be read with reference to its plain spirit and 
intent. Its spirit may not be destroyed by narrowing it to the literal 
meaning of a single word. 

To the same effect is the case of Strond v. ]]'ater Cominisaioners, 
90 Conn. 412. 

The case of Harlan v. Kraschel, 164 Iowa, 667, which appears 
to be contra to this view, is not followed by our court. See Com- 
momvealth v. Henry, 229 Mass. 19, 23, 



J. WESTON ALLEN, ATTORNEY-GENERAL. 179 

I am therefore of the opinion that an automobile parked on the 
highway, with no one in charge, is being "operated," within the 
purview of the statute, and that the display by an automobile 
of a single white light during the period from one-half an hour 
after sunset to one-half an hour before sunrise does not comply 
with the statute. 



CONSTITL'TIONAL LaW — DELEGATION OF LEGISLATIVE PoWER — 

Act which automatically changes to conform to Sub- 
sequent Federal Legislation — Eighteenth Ament)- 
ment. 

Power to enact laws cannot be delegated by the Legislature. 

The Legislature may confer upon municipal corporations power to enact local 
ordinances or by-laws. 

The Legislature may confer upon the Executive power to make administrative 
regulations in e.xecution of a general law. 

Within limits the Legislature may enact contingent legislation. 

The "concurrent power" conferred upon or reserved to the States by the Eight- 
eenth Amendment to the Federal Constitution does not authorize the Legis- 
lature to delegate to Congress any of the legislative power so conferred or 
reserved. 

The Legislature has no power to provide that an act passed to execute the Eight- 
eenth Amendment to the Federal Constitution shall automatically change 
so as to conform to legislation which may hereafter be passed by Congress 
in order to execute said amendment. 

The Legi.slature has no power to provide that liquor for non-beverage purposes 
may be manufactured, purcha.sed, delivered or posse.ssed, "but only as pro- 
vided by the laws of the United States and the regulations made thereunder," 
since, under such a provision, the law of this Commonwealth would auto- 
matically change to conform to such Federal laws and regulations. 

The Legislature may provide that a carrier shall not deliver liquor except to persons 
who present a verified copy of a permit required by the laws of the United 
States, since this imposes a condition precedent to such delivery which in- 
volves no delegation of legislative power to Congress. 

You have submitted for my consideration House Bill No. to the senate. 

". 1921 

1612, entitled "An Act to carry into effect, so far as the Common- May 23. 
wealth of Massachusetts is concerned, the Eighteenth Amend- 
ment to the Constitution of the United States." You direct my 
attention to fifteen provisions of the bill which make the operation 
of the proposed law depend upon the laws of the United States 
and the regulations made thereunder. These provisions are, 
broadly speaking, of two kinds: first, those which in effect incor- 



ISO OPINIONS OF THE ATTORNEY-GENERAL. 

porate into the present bill " the laws of the United States and the 
regulations made thereunder"; and second, those which require 
the possession of the permit required by those laws and regula- 
tions as a condition precedent to some act otherwise prohibited. 
You inquire, in each instance, whether the provision in question 
is "an unconstitutional delegation by the General Court to the 
Congress of the United States of the power of the General Court 
to make laws for this Commonwealth." In view of the importance 
and delicacy of the subject and the number and scope of your 
inquiries, I shall consider, first, what constitutes an unconstitu- 
tional delegation of the power to enact laws; and second, the 
effect of the provisions of the proposed bill to which you call my 
attention. 

1. The power to enact laws is a prerogative of sovereignty. 
It is vested in the people of Massachusetts except in so far as it 
has been surrendered or limited by the Constitution of the United 
States. By the Constitution of Massachusetts the people have 
delegated a portion of this power to the General Court. They 
have prescribed therein the manner in which the authority so 
delegated may be exerted. No bill can become a law unless it has 
been duly enacted by both branches of the Legislature and been 
either approved by the Governor or passed over his veto. There 
is no substitute for this procedure except enactment under the 
initiative provisions of the Forty-eighth Amendment. Thus the 
I power of the General Court to make laws differs fundamentally 

from that possessed by the people. The power of the poeple is 
inherent in them and may be delegated by them upon such terms 
as they may from time to time see fit to fix; the powers of the 
General Court are derived from the people, have been limited 
by the people and can be exerted only in the manner prescribed 
by the people. 

The General Court cannot delegate its power to make laws. No 
other body can exercise the power in the manner prescribed by the 
Constitution. This of itself is sufficient to preclude delegation. 
Yet the people have added to this inherent limitation upon the 
power the express prohibition contained in article XXX of the Bill 
of Rights. In Boston v. Chelsea, 212 Mass. 127, the court, in 



J. WESTON ALLEN, ATTORNEY-GENERAL. 181 

holding that the Legislature could not delegate to a commission 
appointed by the court power to ascertain and prescribe to what 
extent (if any) the expense of the county of Suffolk should be 
borne by Chelsea and Winthrop, said : — 

Article 30 of the Declaration of Rights of our Constitution provides 
that "In the government of this Commonwealth, the legislative depart- 
ment shall never exercise the executive and judicial powers, or either 
of them: the executive shall never exercise the legislative and judicial 
powers, or either of them: the judicial shall never exercise the legislative 
and executive powers, or either of them: to the end it maj' be a gov- 
ernment of laws and not of men." It has been decided many times that 
the Legislature cannot delegate the power to make laws conferred upon 
it by a constitution sharply separating the three departments of gov- 
ernment. Wyeth v. Cambridge Board of Health, 200 Mass. 474, 481; 
Commonwealth v. Maletsky, 203 Mass. 241, 247; Brodhine v. Revere, 182 
Mass. 598, 600; Opinion of the Justices, 160 Mass. 586; Stone v. Charles- 
town, 114 Mass. 214, 220. When the attempt is to confer the power to 
make laws upon one of the other two departments of government, there 
is encountered the double prohibition of the Constitution against delega- 
tion of the law-making powers bj' the legislative, and against the exer- 
cise of that power by the co-ordinate department. It applies as strongly 
to the one as to the other. It is operative in equal degree upon the judi- 
cial and upon the other two departments of government. Case of Super- 
visors of Election, 114 Mass. 247. The question is whether Resolves of 
1910, c. 109, as amended by c. 482 of the Acts of 1911, violates this 
article of the Constitution by imposing a law-maldng power upon the 
judicial department. 

So, also, the Legislature, unless authorized by a constitutional 
provision for a referendum, cannot draft a general law and leave 
the enactment of it to the people at the polls. Oyinion of the 
Justices, 160 Mass. 586; Barto v. Himrod, 8 N. Y. 483. Other 
instances might be given, but these suffice. The manner in which 
the Legislature must exert its delegated power to make laws, the 
express prohibition of article XXX of the Bill of Rights, and 
settled authority, all forbid the Legislature to delegate its au- 
thority to enact laws. Attorney-General v. Old Colony R.R., 160 
Mass. 62, 92; Brodhine v. Revere, 182 Mass. 598, 600; Graham v. 
Roberts, 200 Mass. 152, 158; Wyeth v. Cambridge Board of Health, 
200 Mass. 474, 481. See also Dinan v. Swig, 223 Mass. 516. 



182 OPINIONS OF THE ATTORNEY-GENERAL. 

There are seeming exceptions to the general rule that the Legis- 
lature cannot delegate legislative power, which, upon examination, 
prove not to be exceptions at all. The first of these seeming excep- 
tions relates to the powers of local self-government which may be 
possessed by or conferred upon counties, cities, towns and other 
municipal corporations. The colonists brought with them from 
England the conception of local self-go vernm.ent. The settlement 
and organization of towns preceded any general colonial govern- 
ment. Many towns (now cities) are far older than the Constitu- 
tion. Legislation in towns, by by-laws, has been a part of the 
law of Massachusetts from the earliest times. Graham v. Roberts, 
200 Mass. 152, 158; Deiveij v. Richardson, 206 Mass. 430, 433. 
Sioutenburgh v. Hennich, 129 U. S. 141, 147. The continued exist- 
ence of counties and towns was expressly recognized by the Con- 
stitution at the time of its adoption, and has continued ever since. 
Mass. Const, pt. 2d, c. I, arts. I and II; Amend. II. 

The authority of towns and other municipal corporations to 
regulate local matters by local ordinances or by-laws was not 
destroyed by the adoption of the Constitution, but became sub- 
ject to the legislative power conferred upon the General Court. 
The Legislature may, subject to constitutional limitations, enlarge 
or diminish the authority of any city or town to regulate matters 
of local concern by reasonable ordinances, regulations or by-laws 
applicable only within its corporate limits. Opinion of the Justices, 
234 Mass. 597, 603; CommoiiweaUh v. Theherge, 231 Mass. 386, 
389; Commonwealth V. Slomm, 2^0 Msiss. 180, 190; Commomcealth 
V. Fox, 218 Mass. 498; Opinion of the Justices, 208 Mass. 625, 
629; Commonwealth v. Kingsbury, 199 Mass. 542, 546; Brodbine 
V. Revere, 182 Mass. 598, 600; Commonwealth v. Plaisted, 148 
Mass. 375, 382; Bradley v. Richmond, 227 U. S. 477. So, also, 
the Legislature may prescribe some administrative purpose and 
direct the municipality to put that purpose into local effect, such 
as, for example, the division of the city into wards {Fitzgerald v. 
Boston, 220 Mass. 503); or the ascertainment of the districts to 
which certain limitations upon the height of buildings shall apply 
{Welch V. Swasey, 193 Mass. 364, 375; 214 U. S. 91). But all 
these instances are matters of local administration which differ 



J. WESTON ALLEN, ATTORNEY-GENERAL. 183 

widely in degree, and perhaps in kind, from any delegation of 
power to enact general laivs applicable throughout the Common- 
wealth. 

The second seeming exception relates to the extent of adminis- 
trative power which may be conferred upon the Executive or some 
administrative official, board or commission in order to execute a 
given law. Laws do not execute themselves. They require human 
action to put them into effect. The effective administration of 
, laws may, and often does, require a considerable measure of ad- 
ministrative or executive discretion in order to fit the law to vary- 
ing states of fact which cannot be foreseen and prescribed for 
specifically in advance. The executive is one of the three co- 
ordinate departments of the government. The prohibition upon 
delegating power to make laws does not prevent or prohibit a grant 
of administrative discretion appropriate to the execution of an 
otherwise valid law. Such a grant of administratiA-e discretion 
may include authority to prescribe administrative regulations 
which are subordinate to and in execution of the law itself and are 
appropriate to carry it into effect. Such grants of administrative 
discretion to make appropriate executive regulations have fre- 
quently been made and upheld upon the ground that they do not 
confer legislative power. Brown v. Boston & Maine R.R., 233 
Mass. 502, 510 (Public Service Commission) ; Holcomhe v. Creamer, 
231 Mass. 99, 111 (Minimum Wage Commission); Commonwealth 
V. Hyde, 230 Mass. 6 (State Board of Health); Codman v. Crocker, 
203 Mass. 14G, 154 (Boston Transit Commission); 0-pinion of 
the Justices, 138 Mass. 601, 603 (Civil Service. Commission); 
Martin v. Witherspoon, 135 Mass. 175, 178 (Governor and Coun- 
cil); Mutual Film Corp. v. Industrial Commission, 236 U. S. 230 
(moving picture censorship); Red "C" Oil Mfg. Co. v. North 
Carolina Board of Agriculture, 222 U. S. 380 (tests for illuminating 
oil) . But it is equally well settled that such administrative rulings 
or regulations cannot alter or add to or detract from the law itself. 
Wyeth V. Camhridge Board of Health, 200 Mass. 474, 481 ; Common- 
wealth V. Maletsky, 203 Mass. 241, 246; Goldstein v. Conner, 212 
Mass. 57, 59; United States v. Standard Brewery, Inc., 251 U. S. 
210, 220; Waite v. Macy, 246 U. S. 606; United States v. George, 



184 OPINIONS OF THE ATTORNEY-GENERAL. 

228 U. S. 14, 20; United States v. United Verde Covper Co., 196 
U. S. 207, 215. In Field v. Clark, 148 U. S. 649, 692, 693, the 
distinction between executive discretion and legislative power is 
clearly defined, as follows : — 

"The true distinction," as Judge Rauney, speaking for the Supreme 
Court of Ohio, has well said, "is between the delegation of power to 
make the law, which necessarily involves a discretion as to what it shall 
be, and conferring authority or discretion as to its execution, to be exer- 
cised under and in pursuance of the law. The first cannot be done; to 
the latter no valid objection can be made." Cincinnati, Wilmington, 
&c., Railroad v. Commissioners, 1 Ohio St. 88. 

A third seeming exception relates to contingent legislation. The 
General Court may enact a law to take effect upon the happening 
of a subsequent event. Oinnion of the Justices, 160 Mass. 586, 
591. A typical example is a general law which shall apply to those 
cities or towns which accept its provisions. Wales v. Belcher, 3 
Pick. 508; Stone v. Charlestown, 114 Mass. 214; Lynn v. County 
Commissioners, 148 Mass. 148, 151; Graham v. Roberts, 200 Mass. 
152, 156. In this class, also, fall statutes authorizing each locality 
to determine whether it will permit the sale of intoxicating liquor 
within its limits. Commonwealth v. Bennett, 108 Mass. 27, 29; 
Commonwealth v. Blackington, 24 Pick. 352; 7 Dane Abr. 43, 48. 
Another example is reciprocal legislation, which makes the terms 
upon which a privilege or exemption is granted to the corporations 
or inhabitants of another State depend upon the terms exacted 
by that State for the grant of a similar exemption to our own 
corporations or citizens. Bliss v. Bliss, 221 Mass. 201, 211; 
People V. Fire Association, 92 N. Y. 311. In such a case the effect 
accorded to the provisions of the foreign law is not in principle 
dissimilar from the effect accorded to executive regulations, made 
by some administrative body under a domestic law, which ascertain 
and make certain some contingency upon which the execution of 
the law depends. On the other hand, the principle that contingent 
legislation is permissible cannot be pressed too far. The Legis- 
lature, unless authorized by the Constitution, cannot make the 
enactment of a general law, drafted by it, depend upon the result 



J. WESTON ALLEN, ATTORNEY-GENERAL. 185 

of a State-wide referendum. O-pinion of the Justices, 160 Mass. 
586; Barto v. Himrod, 8 N. Y. 483. Again, the distinction seems 
to lie between that which in effect enacts a law and that which 
pertains to the execution of a law already enacted. 

Even though the Constitution of the United States contains no 
provision similar to article XXX of the Bill of Rights, similar 
principles apply. It is equally well settled that Congress cannot 
delegate its power to enact general laws for the United States. 
Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 164; Interstate 
Commerce Commission v. Goodrich Transit Co., 224 U. S. 194, 214; 
Field V. Clark, 143 U. S. 649, 692, 693; In re Rahrer, 140 U. S. 
545, 560; Wayman v. Southard, 10 Wheat. 1, 42. But Congress 
may confer upon the territories, upon the District of Columbia, 
and upon the local government of the Philippines, power to enact 
local laws and regulations applicable within their respective terri- 
torial boundaries. Maynard v. Hill, 125 U. S. 190; Stouienhurqh 
V. Ilennick, 129 U. S. 141; Dorr v. United States, 195 U. S. 138. 

Upon the same principle Congress, where uniform a-pj^Hcation 
of a general law is not required, may make the local application of 
the Federal law depend upon the law of the State in question. 
Thus Congress may provide that the rules of practice in the several 
Federal courts shall conform as nearly as may be to the practice 
of the State in which the court sits (Wayman v. Southard, 10 
Wheat. 1; United States v. Jones, 109 U. S. 513); that interstate 
shipments of liquor shall become subject to the police power of 
the receiving State to the same extent as if produced there {In re 
Rahrer, 140 U. S. 545) ; that liquor shall not be shipped into a State 
which prohibits its use and sale (Clark Distilling Co. v. Western 
Maryland Ry. Co., 242 U. S. 311); that mining claims may be 
located upon the public lands within a State in the manner pre- 
scribed by local law (Butte City Water Co. v. Baker, 196 U. S. 119; 
Jackson v. Rohy, 109 U. S. 440, 441) ; that the provisions of local 
law as to exemptions, dower and priority of payment shall apply 
in bankruptcy proceedings (Hanover National Bank v. Moyses, 
186 U. S. 181); that offences committed in dockyards and other 
places ceded to the United States, and not otherwise punishable by 
any law of the United States, shall be punished according to the 



I-S6 OPINIONS OF THE ATTORNEY-GENERAL. 

law in force, at the time the Federal act was passed, in the State 
where such place is situated {Frankiin v. United States, 216 U. S. 
559, 568; United States v. Paul, 6 Pet. 141) ; that offences against 
the local election law, committed at a Federal election within the 
State, shall be punished in the manner prescribed by the Federal 
act (Ex parte Siebold, 100 U. S. 371, 388); that local pilots shall 
be governed by the local law (Cooley v. Board of JVardens, 12 How. 
299) ; and that national banks may be authorized to act as execu- 
tor or trustee if local banks may be similarly authorized by local 
law (First Xational Bank v. Fellows, 244 U. S. 416, 428). But all 
these cases appear to rest upon the principle that while the power 
of Congress is paramount and may be so exerted as to supersede 
State law, Congress is not required so to exert it where a uniformity 
of application of the law is not required, but may, instead, give 
to the local law a local application not unlike the rules and regu- 
lations which a municipality may be authorized to make for the 
government of matters of local concern. On the other hand, if the 
subject be a matter which requires general and uniform regula- 
tion, it is beyond the power of Congress to give to the laws of the 
several States the effect of municipal ordinances applicable within 
their respective boundaries. Knickerbocker Ice Co. v. Stewart, 253 
U. S. 149. 

It is equally clearly settled that while Congress cannot delegate 
to the Executive any power to enact laws, it may confer a broad 
executive discretion as to the manner in which a law enacted by 
Congress shall be carried into effect, which executive discretion 
may include incidental power to make subsidiary regulations. 
Buttfield V. Stranahan, 192 U. S. 470; Interstate Commerce Com- 
mission V. Goodrich Transit Co., 224 U. S. 194; Houston, etc., Ry. 
Co. V. United States, 234 U. S. 342; First National Bank v. Fellows, 
244 U. S. 416; United States v. Grimaud, 220 U. S. 506; Monon- 
gahela Bridge Co. v. United States, 216 U. S. 177; Re Kollock, 165 
U. S. 526; Field v. Clark, 143 U. S. 649. The distinction between 
a grant of incidental executive power to make regulations for the 
enforcement of an existing law and a delegation of power to make 
the law itself has been stated in the previous quotation from Field 
v. Clark, supra; see also Buttfield v. Stranahan, 192 U. S. 470, 



J. WESTON ALLEN, ATTORNEY-GENERAL. 187 

496. It follows that whether the pow^r to enact House Bill No. 
1612 be rested upon the police power of the State, or upon the 
"concurrent power" conferred by the Eighteenth Amendment, 
or upon both together, the question as to what constitutes an 
unconstitutional delegation of the power to enact laws is tested 
by similar principles. 

2. Section 1 of the proposed law in substance defines "intoxi- 
cating liquor" so as to include any liquids or compounds "con- 
taining one half of one per centum or more of alcohol by volume 
which are fit for use for beverages purposes"; excludes from that 
definition certain liquids which contain less than that percentage 
of alcohol if they "are made as prescribed by the laws of the 
United States and the regulations made thereunder"; and further 
provides by section 1 (6) : — 

(b) Notwithstanding the prf)vision.s of this section the word "liquor" 
or the phrase "intoxicating liquor," for the purpose of this chapter shall 
have the meaning defined from time to time by the congress of the 
United States for the purpose of enforcing the provisions of the eight- 
eenth amendment to the constitution of the United States. 

In my opinion, this makes the definition of intoxicating liquor 
which Congress may from time to time adopt paramount to the 
definition contained in the bill. If this be so, this section is in 
effect made subject to alteration, amendment or repeal by Con- 
gress at pleasure. Such a grant of power to Congress seems 
necessarily to include a grant of discretion to Congress to deter- 
mine what the law of Massachusetts shall be. In my opinion, it 
cannot be brought within the seeming exception to the general 
rule which permits the Legislature to delegate to cities and towns 
power to make local rules or ordinances subject to the law which 
confers the power. Congress is not a municipal corporation; this 
law is of state-wide application, and Congress is invested with 
power to change the law which confers the power. In my opinion, 
it is not within the seeming exception which authorizes a grant to an 
executive or administrative body of incidental discretion to make 
regulations for the execution of the law which confers the power. 
The Congress of the United States is not an administrative body 



188 OPINIONS OF THE ATTORNEY-GENERAL. 

of this Commonwealth, and, if it were, it could not be invested 
with power to alter, amend or repeal the law which confers an 
incidental power to make regulations for its own execution. 
Wyeth V. Cambridf/e Board of Health, 200 IVIass. 474, 481 ; Waite 
V. Macy, 246 U. S. 606. I cannot escape the belief that the Su- 
preme Judicial Court would probably hold that such a provision 
is an unconstitutional delegation of the power of the General 
Court to enact laws. Boston v. Chelsea, 212 Mass. 127; Oinnion 
of the Justices, 160 Mass. 586. 

Section 3 permits liquor for non-beverage purposes and wine 
for sacramental purposes to be manufactured, purchased, delivered, 
possessed, etc., "but only as provided by the laws of the United 
States and the regulations made thereunder." This provision 
seems to be equally open to the objections already noted in respect 
to delegating legislative power to Congress, and to the further 
objection that in this case the delegation includes the Federal 
officials authorized by Congress to make regulations for the execu- 
tion of the Federal laws upon tliis subject. If a delegation of 
legislative power to Congress cannot probably be supported, it 
seems even more difficult to support a similar grant to subordinate 
executive officials of another sovereignty. A change made by 
Congress has at least the sanction of legislative action, though 
probably not the sanction which our Constitution requires in 
order to make or alter our laws. But a regulation adopted by 
Federal executive officials has nothing of that character. It is 
not duly adopted by each house of our Legislature or subject to 
approval or disapproval by the Governor. It has no power to 
alter the law of the United States under which it is made. Waite 
V. Macy, 246 U. S. 606; United States v. George, 228 U. S. 14, 20; 
United States v. United Verde Copper Co., 196 U. S. 207, 215. I 
am constrained to believe that the Supreme Judicial Court would 
hold that the General Court cannot authorize Federal officials 
to alter our laws by regulations which cannot have that effect 
upon the Federal laws. 

Section 19 provides, in substance, that a carrier shall not deliver 
liquor except to persons "who present a verified copy of a permit 
to purchase in the form required by the laws of the United States 



J. WESTON ALLEN, ATTORNEY-GENERAL. 189 

and the regulations made thereunder. . . ." In my opinion, 
this imposes a condition upon such deHvery, namely, the presenta- 
tion of the required permit. Doubtless the condition cannot be 
satisfied except by one who has previously complied with the 
Federal law in this respect. But even though the Federal law may 
alter from time to time, compliance therewith by the consignee 
involves no change in the provisions of the law of Massachusetts. 
In my opinion, this provision is not open to objection upon the 
ground that it involves an unconstitutional delegation of legisla- 
tive power. 

Applying these principles to your questions specifically, my 
answer must necessarily be "yes" to questions 1, 2, 4, 6, 7, 9, 13 
and 15, upon the ground that the provisions of the proposed law 
to which those questions refer change automatically to coincide 
with the future laws enacted from time to time by Congress, or 
with such laws and the regulations made thereunder. On the other 
hand, my answer is "no" to questions 5, 10, 11, 12 and 14, upon 
the ground that the provisions to which those questions refer 
simply impose a condition precedent to some act authorized by 
the proposed law, and are not provisions of law subject to change 
by the laws of the United States and the regulations made there- 
under. The answer to questions 3 and 8 will, in my opinion, depend 
upon whether the court should construe the provisions in question 
as conditions precedent or as provisions of law subject to change 
by the laws of the United States and the regulations adopted 
thereunder. 

The primary purpose of the present bill is to enforce the 
Eighteenth Amendment. That purpose could not, in my opinion, 
be attained by a law which automatically amends itself to conform 
to future Federal legislation, even if such a law were constitutional. 
Both the State and the Federal Constitution prohibit the enact- 
ment of ex post facto laws; that is, laws which punish an act done 
before the law takes effect or which increase the punishment 
prescribed for a crime already committed. Bill of Rights, art. 
XXIV; U. S. Const., art. I, § 9. When a law is amended the 
amendment replaces the prior enactment, which ceases to operate 
unless expressly continued in force with respect to acts done 



190 OPINIONS OF THE ATTORNEY-GENERAL. 

while it was in effect. If the proposed bill were constitutional, it 
might well be that before the criminal act could be punished the 
law would have automatically amended itself, thus destroying the 
law under which that act could be punished, and replacing it with 
a law under which no punishment could be inflicted. Such a 
statute is, in my opinion, ill adapted to enforce the Eighteenth 
Amendment. 

Thus far I have confined myself strictly to the questions pro- 
pounded, namely, whether the bill in its present form would be 
unconstitutional on the ground that it improperly delegates the 
power of the General Court to enact laws for this Commonwealth. In 
my opinion, the objections to the present bill may readily be 
removed by amendment. There can be no doubt that the Legis- 
lature has power to enact appropriate legislation to enforce the 
Eighteenth Amendment. Commonwealth v. Nicherson, 2.36 Mass. 
281. It may, if it sees fit, enact a law substantially similar to the 
Volstead Act. 41 Stat. 305. It might, if it sees fit, borrow the 
language of any regulations adopted thereunder, assuming of 
course that no provision of the State or the Federal Constitution 
is thereby violated. It may from time to time adopt such amend- 
ments of the Volstead Act as may hereafter be made by Congress, 
provided those amendments are themselves constitutional. What 
it cannot do, in my opinion, is to enact a law which, icithout 
further action by the Legislature, will automatically amend itself 
so as to conform to subsequent legislation of the United States. 
Such a law not only substitutes the discretion of Congress and 
of the President for the discretion of the Legislature and of the 
Governor, which the State Constitution requu-es, but also may 
well prove ineffective as ex post facto legislation. Both objections, 
in my opinion, would cease to apply if the provisions for auto- 
matic amendment be eliminated from the present bill. 



May 23. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 191 

Aircraft — EstablishivIent of Landing Places — Great 

Ponds. 

The provisions of G. L., c. 90, § 40, relative to the establishment of landing places 
for aircraft, do not apply to the great ponds of the Commonwealth. 

The provisions of the statute are limited to the landing of aircraft on the land 
and ground of the Commonwealth. 

You have requested my opinion on the following facts : — m^ssUmS^of 

A request has been made to the Department of Public Works Pj^g^'jc works 
to approve the use of Pontoosuc Lake, a great pond situated in 
Pittsfield, as a landing place for a hydroplane. You inquire as 
to whether or not the Department of Public Works has authority 
under the statutes to pass upon this request, and if there is such 
authority, whether or not a public hearing should be given before 
the matter is decided. 

The statutory provisions relative to aii'craft are found in G. L., 
c. 90. Section 39 reads as follows: — 

Except in a case of emergency no person shall land aircraft in public 
ways or public parks or other public grounds without permission from 
the authorities in charge thereof. 

Section 40 reads as follows : — 

Landing places for aircraft may, from time to time, be designated, 
set apart and marked b}^ the division of highway's, or other public offi- 
cials who are in charge of any land owned or controlled by the com- 
monwealth, or by any town, or by the metropolitan park commission, 
and said officials may make reasonable rules and regulations governing 
the use of such landing places by a^^ators and other persons, and may 
change the same from time to time. All aviators and other persons 
using such landing places shall at all times comph' with the rules and 
regulations made as aforesaid. 

It is my opinion that the language used in these two sections, 
namely, in section 39, that "no person shall land aircraft, except 
in case of emergency, in public ways or public parks or other public 
grounds without permission from the authorities in charge thereof," 
and in section 40, that "landing places for aircraft may, from 
time to time, be designated ... by the division of highways, or 



192 OPINIONS OF THE ATTORNEY-GENERAL. 

other public officials who are in charge of any land owned or con- 
trolled by the commonwealth," indicates that the Legislature did 
not intend the provisions of the sections to apply to great ponds. 

The jurisdiction of great ponds is vested in different officials 
of the Commonwealth, depending in each case upon the matter 
that is the subject of regulation. For example, it is well known 
that the great ponds of the Commonwealth belong to the public, 
and that the rights of fishing, boating, bathing and other like rights 
which pertain to the public therein are regarded as valuable rights, 
entitled to the protection of the government. If any one is found 
to be doing acts without right, the necessary effect of which is to 
destroy or impair these pubHc rights and privileges, it furnishes 
a proper case for an information by the Attorney-General to 
restrain and prevent the mischief. Attorney-General v. Jamaica 
Pond Aqueduct Cory., 1.33 Mass. 361, 364. Then, again, the De- 
partment of Public Health has the general oversight and care of 
all inland waters, including great ponds, whether as sources of 
ice or water supply, and has supervision of the same relative to 
any possible pollution thereof. G. L., c. HI, § 159. And in the 
case of your own department, the Division of Waterways and 
Public Lands has jurisdiction so far as the erection of structures in 
the waters of any of the great ponds is involved. G. L., c. 91, § 13. 

The language used in the statutory provisions quoted above 
is express and specific, and it must be presumed that the Legisla- 
ture, in enacting the same, intended to limit the proAisions to the 
landing of aircraft on the land and ground of the Commonwealth, 
and not to make provision as to the landing of hydroplanes in 
this Commonwealth. Accordingly, I am of the opinion that your 
department is without authority to pass upon the request made 
to you to approve the use of Pontoosuc Lake, in Pittsfield, as a 
landing place for hydroplanes. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 193 



FisHWAY — Red Brook, Wareham — Passageway for Ale- 
wives — Regulation of Obstructions. 

The Commissioner of Conservation, by G. L., c. 130, § 17, has authority to pre- 
scribe by written order that a suitable and sufficient passageway for alewives 
be maintained in Red Brook, so called, in the town of Wareham. 

You have requested mv opinion on the following facts: — To the Direc- 

^ ^ ^ ^ ^ , tor of Fisheries 

Red Brook, so called, located in the town of Wareham, has its ^■J^^P'*'"^' 
headwaters in White Island Pond, a great pond, and flows in a ^^^ ^* - 
southerly direction into the head of Buttermilk Bay. Its entire 
length is approximately 4}-^ to 5 miles. Its greatest breadth is 
about 20 feet. The first half mile from Buttermilk Bay north 
is affected by the rise and fall of the tide to an extent of a maxi- 
mum of 3 feet. The alewives have run in this stream over a long 
period of years. 

You inquire as to whether or not said Red Brook, so called, 
comes within the definition of G. L., c. 130, § 17, as being such a 
river as would give your department the right to regulate obstruc- 
tions on said river with respect to the passage of migratory fish. 

G. L., c. 130, § 17, reads as follows: — 

The commissioner of conservation may examine all dams upon rivers 
where the law requires fishways to be maintained, or where in his judg- 
ment fishways are needed, and he shall determine whether the fishways, 
if any, are suitable and sufficient for the passage of the fish in such rivers, 
or whether a fishway is needed for the passage of fish over any dam; 
and shall prescribe by written order what changes or repairs, if any, 
shall be made therein, and where, how and when a new fishway must 
be built, and at what times the same shall be kept open, and shall serve 
a copy of such order upon the owners of the dams. A certificate of the 
commissioner that service has been so made shall be sufficient proof 
thereof. The supreme judicial or superior court shall, on petition of the 
director, have jurisdiction in equity or otherwise to enforce any such 
order and to restrain any violation thereof. 

It is my opinion that the provisions of said section 17 are not 
restricted in their application to the navigable rivers of the Com- 
monwealth. It has long since been the established law of this 
Commonwealth that everv owner of a dam across a stream where 



194 OPINIONS OF THE ATTORNEY-GENERAL. 

migratory fish are accustomed to pass is obliged to provide a 
sufficient and reasonable way for the fish, unless he is exempt by 
express provision or obvious implication in his grant. The law is 
well stated by ]Mr. Justice Gray in the case of Cohnttissioners on 
Inland Fisheries v. Hohjoke Water Power Co., 104 Mass. 446, 450, 
as follows : — 

The right to have migratory fish pass, in their accustomed course, up 
and down rivers and streams, though not technically navigable, is also a 
public right, and may be regulated and protected by the Legislature in 
such a manner, through such commissioners or other officers, and by 
means of such forms of judicial process, as it may deem appropriate; 
and every grant of a right to maintain a milldam across a stream where 
such fish are accustomed to pass is subject to the condition or limitation 
that a sufficient and reasonable way shall be allowed for the fish, unless 
cut off bj^ express provision or obvious implication in the grant. 

The court then cites the cases of Stoughton v. Baker, 4 Mass. 522 ; 
Coinitionwealth v. Chapin, 5 Pick. 199; Vinton v. Welsh, 9 Pick. 87; 
Coiiiinonwealth v. Alger, 7 Cush. 53, and Coitntionicealth v. Essex 
Co., 13 Gray, 239. 

Under the facts it appears that Red Brook is a stream in which 
alewives, in their accustomed course, have for a long period of time 
ascended the stream to spawn, and therefore the Commissioner of 
Conservation is authorized to prescribe by written order that a 
suitable and sufficient passageway for alewives be maintained in 
said stream. 

Constitutional Law — Acts making Unenforceable Pro- 
visions IN Leases. 

The provisions of St. 1920, c. 578, making unenforceable increases of rent so 
great as to be unjust, unreasonable and oppressive, and of a bill to amend 
said act by providing that stipulations or conditions which operate to raise 
the rents of lessees in cacse of the birth or adoption of children shall be deemed 
unreasonable and oppressive, are not unconstitutional, either because they 
impair the obligation of contracts or because they are not due process of law. 

Governor You have askcd my opinion as to the constitutionality of Senate 

^"921"""*"' Bill No. 412, entitled "An Act to render unenforceable stipula- 
tions in leases providing for a raise in rent because of an increase 
in the tenant's familv." 



May 26. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 195 

The bill amends St. 1920, c. 578, by inserting after section 1 
the following new section : — 

Section lA. A stipulation or condition in a lease or contract of hiring 
of premises to which section one applies whereby the rent shall or may 
be raised because of an increase in the number of the lessee's family 
shall, in case such raise in rent is due to the birth or adoption of a child 
or children, be deemed unjust, unreasonable and oppressive within the 
meaning of said section. 

St. 1920, c. 578, is entitled "An Act to provide that unjust, 
unreasonable and oppressive agreements shall be a defence in 
actions for rent," and provides as follows: — 

Whereas, The deferred operation of this act would defeat its purpose 
to provide immediate relief from hardship incident to the present scar- 
city of houses and buildings available for habitation, therefore it is 
hereby declared to be an emergency law, necessary for the immediate 
preservation of the public health and convenience. 

Section 1. Unjust, unreasonable and oppressive agreements for the 
paj'-ment of rent or for the use and occupation of premises occupied for 
dwelling purposes, other than a room or rooms in a hotel, lodging house 
or rooming house, shall be unenforceable by action. Where it appears 
that the rent has been increased more than twenty-five per cent over 
the rent as it existed one year prior to the time of the agreement under 
which rent is sought to be recovered, except in cases where unusual 
repairs and alterations have been made, the agreement shall be pre- 
sumptively unjust, unreasonable and oppressive; but nothing herein 
contained shall prevent either party from pleading and proving in an 
action that a greater increase was a fair and reasonable rent or that a 
lesser increase was an unjust, unreasonable and oppressive rent for the 
premises in such action, or from instituting a separate action for the 
recovery thereof. In any action on such an agreement or in a separate 
action the landlord may recover the fair rental of his premises. 

Section 2. The provisions of this act shall not apply to pending 
causes of action. 

Section 3. The act shall become null and void on the first day of 
February in the year nineteen hundred and twenty-two. 

Both the act and the amendment, it is clear, apply to and 
affect existing leases. St. 1920, c. 578, makes unenforceable 
increases of rent so great as to be unjust, unreasonable and op- 
pressive. The amendment provides that stipulations or conditions 



196 OPINIONS OF THE ATTORNEY-GENERAL. 

which operate to raise the rents of lessees in case of the birth or 
adoption of children shall be deemed unreasonable and oppressive. 

If the act is unconstitutional the amendment cannot be sus- 
tained. It is therefore necessary to consider whether either fails 
to comply with constitutional requirements. 

There are two possible objections to this legislation on the 
ground of unconstitutionality: first, that it is not due process of 
law, and second, that it impairs the obligation of contracts. 

U. S. Const., art. I, § 10, provides, in part, as follows: — 

No state shall . . . pass any . , . law impairing the obligation of 
contracts. . . . 

The Fourteenth Amendment thereto provides, in part, as 
follows : — 

. . . nor shall any state deprive any person of life, liberty or prop- 
erty, without due process of law. . . . 

The Constitution of this Commonwealth contains no express 
provision which prohibits a law impairing the obligation of con- 
tracts. Cf. Cary Library v. Bliss, 151 Mass. 364, 380. It does 
contain provisions which secure to the people, in substance, the 
right not to be deprived of life, liberty or property without due 
process of law. For example, article XII of the Declaration of 
Rights contains the provision that "no subject shall be . . . 
deprived of his life, liberty, or estate, but by . . . the law of the 
land." See Jones v. Robbins, 8 Gray, 329; Forster v. Forster, 129 
Mass. 559; Wyeth v. Cambridge Board of Health, 200 Mass. 474, 
478. As contracts are property, this provision accords to contracts 
the same measure of protection accorded to other forms of prop- 
erty. See Bogni v. Perotti, 224 Mass. 152. 

In interpreting the Constitution of the United States the de- 
cisions of the Supreme Court of the United States have a controlling 
authority. There are two recent decisions of the Supreme Court 
on questions so analogous to the question you have asked that 
they must be regarded as decisive. The cases are Block v. Ilirsh, 
256 U. S. 135, and Marcus Brown Holding Co. Inc. v. Feldvian, 
256 U. S. 170. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 197 

The former of the two cases involved the constitutionaHty of 
an act of Congress, appHcable to the District of Columbia, giving 
to tenants of rented property the right to occupy such property 
at their option after the expiration of the term, so long as they 
continued to pay rent and perform the conditions of their leases, 
and subject to regulation by a commission created by the act. 
This act was declared to be emergency legislation, the need for 
which was due to conditions arising from the war, and was to end 
in two years unless sooner repealed. 

In the latter case an act passed by the State of New York, 
similarly permitting tenants of rented property to hold over after 
the expiration of their leases, was under consideration. In that 
case it appeared that the parties had made a new lease for the 
payment of an increased rent at the end of the term in question. 

A bare majority of the court held with respect to the former 
act that it was a proper exercise of the police power, and that it 
did not violate the "due process" clause of the Constitution; that 
" a public exigency will justify the Legislature in restricting prop- 
erty rights in land to a certain extent without compensation"; 
and that the act did not go beyond the limit of proper legislation. 
With respect to the latter act, they held also that it was not un- 
constitutional as impairing the obligation of contracts; that 
contracts are made subject to this exercise of the power of the 
State w^hen otherwise justified. In each case there was a vigorous 
dissenting opinion by four of the justices. 

The provisions of St. 1920, c. 578, and of the act which is before 
you seem to me to be less open to objection on the ground of un- 
constitutionality than the provisions of the acts considered in the 
opinions of the Supreme Court. It is true that they interfere 
directly with the express obligations of existing contracts, but the 
interference is certainly no greater and the justification is some- 
what clearer than in the cases recently decided by the Supreme 
Court of the United States. In my opinion, these cases are de- 
cisive so far as the Federal Constitution is concerned. 

The State court has frequently defended the rights of citizens 
against legislative encroachments w^hich have seemed to it to be 
inconsistent with due process of law or "the law of the land." 



198 OPINIONS OF THE ATTORNEY-GENERAL. 

Coviviomvealth v. Ahjer, 7 Cush. 53; Sawyer v. Davis, 136 Mass. 
239; W7jeth v. Cainhridge Board of Health, 200 Mass. 474; Durgin 
V. Minot, 203 Mass. 26; Oinnion of the Justices, 207 Mass. 601. 

But the phrase "law of the land" in the State Constitution is 
substantially equivalent to the phrase "due process of law" as 
used in the Fifth and Fourteenth Amendments to the Federal 
Constitution. On this aspect of the case the two decisions of the 
Supreme Court of the United States are persuasive, if not decisive. 



Statute — Time of Taking Effect. 

St. 1921, c. 430, changing the names of the various "police" courts to "district" 
courts, under Mass. Const. Amend. XLVIII, The Referendum, pts. I and 
III, may not take effect earlier than ninety days after it became a law. 

Secretary. You ask my advisc whether St. 1921, c. 430, takes effect in 

May 27. ninety days or at once. 

Said statute is entitled "An Act changing the names of the 
various 'police' courts to 'district' courts," and contains pro- 
visions to carry that object into effect. Section 4 of said act 
provides as follows : — 

The change of name provided for in this act shall not affect the valid- 
ity of any proceedings commenced in any of said courts under the name 
of "police" court prior to the day this act takes effect. 

Mass. Const. Amend. XLVIII, The Referendum, pt. I, provides 
as follows : — 

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 
referendum petition, as herein provided. 

Mass. Const. Amend. XLVIII, The Referendum, pt. Ill, §§ 1 
and 2, provide as follows : — 

Section 1. A referendum petition may ask for a referendum to the 
people upon any law enacted by the general court which is not herein 
expressly excluded. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 

Section 2. No law that relates to religion, religious practices or 
religious institutions; or to the appointment, qualification, tenure, re- 
moval or compensation of judges; or to the powers, creation or aboli- 
tion of courts; or the operation of which is restricted to a particular 
town, city or other political division or to particular districts or local- 
ities of the commonwealth; or that appropriates money for the current 
or ordinarj'' expenses of the commonwealth or for any of its depart- 
ments, boards, commissions or institutions shall be the subject of a 
referendum petition. 

A statute which merely changes the name of an existing court 
does not abolish that court and create a new one unless the statute 
clearly indicates a purpose so to do. WortJiimjton v. London 
Guarantee, etc., Co., 164 N. Y. 81; Peace v. Wilson, 186 N. Y. 403; 
People V. Aurora, 78 111. 218; Mahonincj Valley 11. Co. v. Santoro, 
93 Ohio St. 53. 

St. 1921, c. 430, in my opinion, does not relate to the powers, 
creation or abolition of courts, or to any matter expressly excluded 
by Mass. Const. Amend. XLVIII, The Referendum, pt. Ill, § 2. 
It follows, by Mass. Const. Amend. XLVIII, The Referendum, pt. 
I, that the statute does not come within the exception, and may 
not take effect earlier than ninety days after it has become a law. 



199 



Tenure of OrricE — President of the Senate — Speaker 
OF THE House of REPRESENTATiyES — Biennial Elections. 

Under the present system of biennial elections, the presiding officers of the Senate 
and House of Representatives hold office for the two-year term for which 
the members of the Senate and House were elected and until the General 
Court, as organized, shall be dissolved "on the day next preceding the first 
Wednesday in January in the third year following their election." 

You have requested my opinion as to whether or not, under the to the senate 
present system of biennial elections, the presiding officers of the Representatives 
Senate and House of Representatives elected January, 1921, hold May 27 . 
office for one year or for the two-year term for which the members 
of the Senate and House were elected. 

Mass. Const. Amend. LXIV, which was submitted to and rati- 
fied by the people on Nov. 5, 1918, provides, so far as is pertinent 



200 OPINIONS OF THE ATTORNEY-GENERAL. 

to your question, that senators and representatives shall be 
elected biennially, and that the terms of senators and representa- 
tives shall begin with the first Wednesday in January succeeding 
their election, and shall extend to the first Wednesday in January 
in the third year following their election and until their successors 
are chosen and qualified. 

The Constitution of Massachusetts has the following provisions 
relative to the choice of the presiding officers of the two branches 
of the General Court : — 

Mass. Const., pt. 2d, c. I, § II, art. VII: — 

The senate shall choose its own president, appoint its own officers, 
and determine its own rules of proceedings. 

Mass. Const., pt. 2d, c. I, § III, art. X: — 

The house of representatives shall be the judge of the returns, elec- 
tions, and qualifications of its own members, as pointed out in the con- 
stitution; shall choose their own speaker; appoint their own officers, 
and settle the rules and orders of proceeding in their own house. 

The existence of the office of President of the Senate is recog- 
nized in the General Laws, but no special reference is made to the 
manner of his election, as is the case as to the election of the Speaker 
of the House of Representatives. 

Article 47 of the Constitution of Massachusetts, as rearranged., 
provides : — 

And that there may be a due convention of senators on the first 
Wednesday in Januar}^ annually, the governor with five of the council, 
for the time being, shall, as soon as maj^ be after each biennial election, 
examine the returned copies of such records; and after each biennial 
election fourteen daj^s before such Wednesday he shall issue his sum- 
mons to such persons as shall appear to be chosen by the highest num- 
ber of votes to attend on that day, and take their seats accordingly. 

See also Mass. Const., pt. 2d, c. I, § II, art. Ill, and amendments 
thereof. 

The provisions relative to the House of Representatives are 
found in G. L., c. 3, §§ 1-3. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 201 

Section 1 provides : — 

The state secretary shall receive and examine the certificates of the 
election of representatives to the general court returned into his office, 
and make a list of the persons therein named. On the Tuesday next 
preceding the first Wednesday of January following a state election he 
shall deliver to the sergeant-at-arms a hst of the persons then returned, 
and upon receiving any further certificates before the house of repre- 
sentatives is called to order he shall immediately make and deliver to 
the sergeant-at-arms a list of the persons returned by such further cer- 
tificates. He shall also transmit the certificates, with a list of all persons 
returned, to the house of representatives as soon as the members are 
called to order. 

Section 3 provides : — 

On said first Wednesday of January [that is, the first Wednesday of 
January folloiving the State election] between the hours of ten in the 
forenoon and twelve at noon, the persons so returned and admitted as 
members into the representatives' chamber shall be called to order by 
the oldest senior member present, who shall be the presiding officer of 
the house until a speaker is chosen or the house otherwise determines. 

Prior to the ratification of Mass. Const. Amend. LXIV, the 
provisions relative to the organization of the House of Repre- 
sentatives were found in R. L., c. 3, §§ 1-3. 

Section 1, relative to the Secretary of the Commonwealth mak- 
ing and delivering lists of persons elected as representatives, pro- 
vided, in part, that — 

On the Tuesday next preceding the first Wednesday of January in 
each year he [the Secretary of the Commonwealth] shall deliver to the 
sergeant-at-arms a hst of persons then returned. 

It is significant that the words "following the state election" 
are not found in the Revised Laws, but the words "in each year" 
were used, and that after the adoption of the amendment pro- 
viding for biennial elections the words " in each year " were stricken 
out, and the words "following the state election" were inserted. 

Construing the provisions of the Constitution and of the General 
Laws set forth above, the law provides for the election of a Speaker 



202 OPINIONS OF THE ATTORNEY-GENERAL. 

upon the convening of the representatives elect on the first Wednes- 
day of January following the State election. 

Article 41 of the Constitution of Massachusetts, as rearranged, 
provides, in part, that — ■ 

The political year shall begin on the first Wednesday in January, and 
the general court shall assemble every year on the first Wednesday in 
January, and at such other times as they shall judge necessary, or when 
called together by the governor; and shall dissolve and be dissolved on 
the day next preceding the first Wednesday in January in the third 
year following their election, without any proclamation or other act of 
the governor, and shall be styled. The General Court of Massa- 
chusetts. 

It is my opinion that when the Senate and the House of Repre- 
sentatives, following a State election, meet on the first Wednesday 
of January and organize and choose their President and Speaker, 
respectively, these presiding officers are elected to serve until the 
General Court which chose them to preside over the Senate and 
House of Representatives is dissolved, as provided for in the Con- 
stitution, to wit, on the day next preceding the first Wednesday 
in January in the third year following the State election at which 
the senators and representatives were elected. It is to be observed 
that under this article of the Constitution the General Court is 
not dissolved until the day next preceding the first Wednesday in 
January in the third year following their election. There is, there- 
fore, a clear distinction between persons elected under the Con- 
stitution as officers of the General Court and such committees as, 
by the rules of the Senate and House, it is provided "shall be 
appointed at the beginning of the political year." 

Accordingly, in answer to your inquiry I would state that the 
presiding officers of the Senate and House of ■ Representatives 
elected January, 1921, hold office for the two-year term for which 
the members of the Senate and House were elected, and until the 
General Court now organized shall be dissolved " on the day next 
preceding the first Wednesday in January in the third year follow- 
ing their election." 



J. WESTON ALLEN, ATTORNEY-GENERAL. 203 



Labor and Industries — Hours of Employment of Women 
AND Children — Meaning of the Word "Week." 

In the absence of express statutory declaration, the word "week," as used in 
G. L., c. 149, § 56, does not mean any consecutive seven days, but should be 
given its usual meaning, and be considered equivalent to the phrase "calen- 
dar week." 

You request an opinion as to the meanins; of the word "week," TotheCom- 

^ ^ " ' missioner of 

as used in G. L., c. 149, § 56, relating to the hours of employment ['ndustr^g 
of women and children. june^2. 

As I understand it, the reason for your inquiry is because in a 
certain case under consideration a schedule of hours has been 
established which limits the employment of women in any calen- 
dar week to forty-eight hours, but does not limit the employment 
to forty-eight hours in certain seven-day periods. For example, 
beginning with a Sunday when a woman employee does not w^ork, 
she is employed during the remainder of the week for eight hours 
a day, or a total of forty-eight hours. Beginning with the next 
Sunday she is employed for seven and one-half hours on that day 
and for six hours on each of the following six days, or a total of 
forty-three and one-half hours, but if the computation begins on 
the first Monday for a period of seven days, the actual hours of 
employment are fifty-five and one-half. 

There appears to be no statutory definition of what constitutes 
a "week," although the word "month" means a calendar month, 
and the word "year" means a calendar year unless otherwise 
expressed. G. L., c. 8, § 5, par. (11). The case of Brewer v. City 
of Springfield, 97 Mass. 152, would seem to indicate that the term 
"week" refers to a calendar week. See also Dexter v. Shepard, 
117 Mass. 480; Frothingham v. March, 1 Mass. 247. 

It is a general rule of law that all statutes in derogation of the 
common law are to be construed strictly, and that such statutes 
must not be deemed to extinguish or restrain private rights unless 
it appears by express words or plain implication that it was the 
intention of the Legislature so to do. 

The purpose of this statute is to prevent injury to health by 
prohibiting women engaged in certain occupations from working 



204 OPINIONS OF THE ATTORNEY-GENERAL. 

for unreasonable periods. The ground upon which the courts 
have sustained regulations limiting the hours of labor of women 
and children is that continuous strain tends to lower the vitality 
of such persons, and to make them more liable to physical or 
mental breakdown. 

Under the schedule as outlined above, the hours of freedom 
from work would seem to prevent such evil effects, for during 
the period of two calendar weeks a woman thus employed works 
four and one-half hours less than the limitation imposed by statute. 
It is to be observed that in any event the hours of labor are limited 
to not more than nine hours in any one day, giving evidence of an 
intention on the part of the Legislature to permit some elasticity 
in the arrangement of schedules. 

In the absence, therefore, of an express declaration that the 
term "week" in the statute shall mean any consecutive seven 
days, it must be given its usual meaning and be considered equiva- 
lent to the phrase "in any calendar week." 



Agricultural Societies — Fairs — Licenses. 

Under G. L., c. 140, §§ 181 and 182, an agricultural society, in order to hold a 
fair, must obtain a license from the mayor or selectmen. 

It is not necessary for the society, or one holding a concession, to obtain a com- 
mon victualer's license, under G. L., c. 140, §§ 2-21, in order to furnish food 
to patrons of a fair. 

m?s8k)ner°™' ^ou ask my opinion on the following questions : — 

Agriculture. 

Junes. 1. Is it necessary for an agricultural society or other organization 

conducting a fair to take out any license, State or municipal, as a pre- 
requisite to holding such fair? 

2. Is it necessary for such a society to take out a license to act as 
victualers when it provides food as part of its accommodation to 
patrons? 

3. Can the city or town in which a fair is held require any one holding 
a concession from a fair to take out a victualer's Hcense before he can 
open a restaurant or sell food in connection with the fair? 

Agricultural societies may be organized under general law or by 
special statute. The act authorizing the organization of such cor- 



J. WESTON ALLEN, ATTORNEY-GENERAL. 205 

porations first appears in St. 1853, c. 312. The substance of the 
law has not been changed since that time. It now appears in 
G. L., c. 180, § 4, which is as follows: — 

Ten or more persons, in any county, city or town may form a corpo- 
ration under section three for the purpose of encouraging agriculture or 
horticulture, or for improving and ornamenting the streets and pubUc 
squares of any city or town by planting and cultivating ornamental 
trees therein. 

The power to hold fairs, if not expressly granted to an agricul- 
tural society, is generally implied as incidental to its purposes. 
Dunn V. Agricultural Society, 46 Ohio St. 93, 99, 100; 2 C. J. 992. 

The statutes of this Commonwealth recognize the holding 
of fairs and exhibitions by agricultural societies as customary. 
G. L., c. 128, §§ 46-50. I am of opinion that agricultural socie- 
ties organized either under general law or by a special statute 
have the power to hold fairs. 

If any hcense is required as a prerequisite to holding such a 
fair, it must be by the express provisions of some statute provid- 
ing for the taking out of such license. The only statute which 
may be applicable appears in G. L.,. c. 140, §§ 181 and 182. Sec- 
tion 181 is, in part, as follows: — 

The mayor or selectmen may . . . grant, upon such terms and con- 
ditions as they deem reasonable, a hcense for theatrical exhibitions, 
public shows, public amusements and exhibitions of every description, 
to be held upon week days only, to which admission is obtained upon 
payment of money. . . . 

Section 182 provides a penalty for maintaining any such ex- 
hibition, show or amusement without such license. It then con- 
tinues as follows : — 

This and the preceding section shall not apply to public entertain- 
ments by religious societies in their usual places of worship for a religious 
or charitable purpose, . . . 

There are some cases which tend to indicate that activities 
which are instructive do not fall within the class of "public 



206 OPINIONS OF THE ATTORNEY-GENERAL. 

amusements." Comnionwealih v. Gee, 6 Cush. 174; Commonwealth 
V. Bow, 177 Mass. 347. 

But agricultural fairs, in my judgment, fall within the descrip- 
tion both of " public shows " and " exhibitions of every description." 
On the other hand, although they are organized for the purpose 
of encouraging agriculture, and thus have a recognized standing 
which vests them with a sort of public purpose, they are not public 
entertainments by religious societies in their usual places of wor- 
ship for a religious or charitable purpose. It is my opinion, there- 
fore, that they must be licensed by the mayor or selectmen, as 
required by G. L., c. 140, § 181. 

Innholders and common victualers are required to procure 
licenses from the licensing authorities, and are subject to a penalty 
for assuming to be such without being licensed. G. L., c. 140, 
§§ 2-21. I know of no other provision of law requiring the taking 
out of a license, either by a restaurant keeper or other vendor of 
food or by one holding a concession for the supplying of food. 

A common victualer is required at all times to be provided with 
"suitable food for strangers and travelers," and also to have 
"upon his premises the necessary implements and facilities for 
cooking, preparing and serving food for strangers and travelers." 
G. L., c. 140, §§ 5 and 6. A penalty is imposed if he refuses, upon 
request, to supply food to a stranger or traveler on any day but 
Sunday. G. L., c. 140, § 8. His license runs to April 30 of each 
year, and must be revoked if he ceases to do business. G. L., 
c. 140, §§ 4 and 9. 

The words "common victualer," it is said, "in Massachusetts, 
by long usage, have come to mean the keeper of a restaurant or 
public eating house." Commonwealth v. Meckel, 221 Mass. 70, 
72; Friend v. Childs Dining Hall Co., 231 Mass. 65, 72. 

It is my opinion that the holder of a concession who furnishes 
food for the accommodation of patrons of a fair, temporarily, 
during the days on which the fair is held, is not a common victualer, 
within the meaning of those words as ordinarily used. His purpose 
is not, and he cannot be required, to furnish food to all strangers 
and travelers, but merely to those attending the fair upon payment 



J. WESTON ALLEN, ATTORNEY-GENERAL. 207 

of admission. His business is not permanent, but necessarily 
continues only while the fair is being held. 

If the society itself provides food for the accommodation of its 
patrons during the fair, it is not for that reason engaged in the 
business of supplying food to strangers and travelers, and is not 
the keeper of a public eating house. Therefore, it is not a com- 
mon victualer. 

I advise you, therefore, in answer to your second and third 
questions that it will not be necessary to obtain any common 
victualer's license. 



Registration of Births — Illegitimate Children. 

Where a child is born in wedlock there is a presumption of legitimacy, which 

can be rebutted only by evidence showing beyond reasonable doubt that the 

husband was not the father; and the declarations of either parent are not 

competent to prove illegitimacy. 
Under G. L., c. 46, § 1, in recording births the term "illegitimate" should not be 

used unless the illegitimacy has been legally determined, or has been admitted 

by a sworn statement of both father and mother. 
A legitimate child bears the surname of the parents, and the name should be so 

recorded. 
Illegitimate children have no family names, and take the names which they have 

gained by reputation. 
Under G. L., c. 46, § 3, if a child is illegitimate the name of the father should not 

be recorded, except on the written request of both father and mother. 

You ask me to pass upon "the following rulings relative to To the 
illegitimate children:"— 1921 

* June 10. 

1. Child born to unmarried woman takes maiden name of woman. 
No information to be given relative to father except on written request 
of both parents, when data is given regarding father, and child may 
take his name. (G. L., c. 46, §§ 1 and 3.) 

2. Child born to widow or divorcee same as No. 1, except child takes 
legal name of woman. 

3. Child born to married woman takes name of woman's husband, 
regardless of whether he is the supposed father or not, and complete 
data should be given regarding husband. 

Exceptions: Court decree that child is illegitimate. 
When child takes legal name of mother and no information is given 
regarding father. 



208 OPINIONS OF THE ATTORNEY-GENERAL. 

Signed statement of both the husband and the mother that the child 
is illegitimate, when no information is given relative to the husband, and 
child takes the legal name of mother. 

I do not understand that there is any provision of statute 
authorizing the making of formal ruHngs in cases such as you refer 
to, but I am informed by the State registrar that cases of the 
kind mentioned have frequently arisen, where soine interpretation 
of the law and the statutes has become necessary, and that you 
desire my advice as to the proper interpretation. 

A child born out of wedlock is, of course, illegitimate. Where a 
child is born in wedlock there is a presumption of legitimacy which 
can be rebutted only by evidence which proves beyond all reason- 
able doubt that the husband could not have been the father. 
Hemmenway v. Towner, 1 Allen, 209; Phillvps v. Allen, 2 Allen, 453; 
Sullivan v. Kelly, 3 Allen, 148. It has been held that the presump- 
tion cannot be rebutted by declarations of either parent that 
the child was illegitimate. Hemmenicay v. Towner, supra; Ahing- 
ton V. Duxhury, 105 Mass. 287; Koffman v. Koffman, 193 Mass. 
593. 

The statute providing for registration of births provides that 
"the term 'illegitimate' shall not be used in the record of a birth 
unless the illegitimacy has been legally determined, or has been 
admitted by the sworn statement of both the father and mother." 
G. L., c. 46, § 1. In view of this statute, your department is bound 
to record a child born in wedlock as legitimate unless there is some 
court decision to the contrary, or unless the sworn statements 
referred to have been made. 

A legitimate child bears the surname of its parents, and the 
name should be so recorded. Snook's Petition, 2 Hilt. (N. Y.) 566, 
569; Laflin, etc., Co. v. Steytler, 146 Pa. St. 434. 

Illegitimate children have no family names, and take the names 
which they have gained by reputation. Snook's Petition, supra; 
Rex v. Smith, 6 C. & P. 151; Rex v. Clark, R. & R., C. C. 358. 
If a child goes by its mother's name it should be so recorded; 
otherwise not. 

The recording of information is governed entirely by statute. 
G. L., c. 46, §§ 1 and 3. These sections provide that certain 



J. WESTON ALLEN, ATTORNEY-GENERAL. 209 

information concerning the father of a child shall be recorded, 
which will apply to every case where a child is born in wedlock, 
with the exceptions above stated. These sections also provide 
that in the case of an illegitimate child "the name of, and other 
facts relating to, the father shall not be recorded except on the 
written request of both father and mother." Upon such request, 
by the express terms of the statute the name and other facts relat- 
ing to the father should be recorded. 

Any information voluntarily given out by your department 
should conform to the law as above stated. 



Statute — Construction. 

St. 1921, c. 502, § 3, authorizing the State Treasurer to transfer a balance of 
$49,123.43 from one fund to another, where the actual balance is greater than 
the sum stated, should be construed to direct the transfer of the entire 
balance. 

St. 1921, c. 502, § 3, provides as follows : — to the 

" ^ Auditor. 

1921 

The treasurer and receiver general is hereby authorized and directed " ^""^ ^* ' 
to transfer the balance of forty-nine thousand one hundred twenty- 
three dollars and forty-three cents, remaining to the credit of a fund 
known as the Compensation Fund for Boston Harbor, to the Port of 
Boston Fund established by chapter six hundred and sixty-three of the 
acts of nineteen hundred and twelve. 

You state that the balance on hand of the Compensation Fund 
for Boston Harbor is not $49,123.43, the figure named in the act, 
but is in fact $56,019.43. 

You ask me to advise you whether you would be justified in 
transferring the actual balance of $56,019.43 instead of $49,123.43, 
the amount specified in the act. 

It is the fundamental rule in statutory construction that the 
intention of the Legislature as shown by the language used, the 
object intended to be accomplished, and other circumstances should 
be determined and carried into effect. "The manifest intention 
of the Legislature, as gathered from its language, considered in 
connection with the existing situation and the object aimed at, 
is to be carried out." Moore v. Stoddard, 206 Mass. 395, 399. 



210 OPINIONS OF THE ATTORNEY-GENERAL. 

In the case which you state, the intention of the Legislature is 
clearly shown by the use of the word "balance." Its general 
intention is also shown by another statute to which you have called 
attention, namely, G. L., c. 91, § 6, by which the Port of Boston 
Fund was established. That section, as amended by the special 
session of the Legislature last December, provides, with reference 
to the Port of Boston Fund, as follows: — • 

. . . The income from all wharfage and storage rates, use of cranes, 
lighterage, dockage and other charges, and from the leases of lands, 
storage structures, wharves, piers, docks, sheds, warehouses and indus- 
trial sites, all moneys received by the commonwealth under section 
twenty-one for tide water displacements in Boston harbor, and all 
moneys hereafter received which on May twenty-eighth, nineteen hun- 
dred and twelve, were required to be paid into the Commonwealth's 
Flats Improvement Fund, shall be collected by the division and paid 
to the commonwealth, to the credit of the Port of Boston Fund. Said 
fund may be invested by the state treasurer at his discretion from time 
to time as provided for the investment of the commonwealth's funds; 
and all income from such investments shall be added to the fund. The 
division may expend the Port of Boston Fund to operate, maintain, re- 
pair and preserve the property in Boston harbor in the control of the 
division, and such sums as the legislature may appropriate annually for 
salaries, office expenses, and general engineering expenses in connection 
with the work of the division in Boston harbor shall be paid so far as 
possible from said fund; any balance remaining from said fund after 
the aforementioned expenses have been paid shall be applied to the 
payment of interest and to the annual payments on account of principal 
of any securities which may have been or may be issued to raise money 
to be expended by the division for the development of the port of Boston. 

The words "all moneys received by the commonwealth under 
section twenty-one for tide water displacements in Boston harbor" 
were inserted by the amendment. 

The case of Shrewsbury v. Boylston, 1 Pick. 105, is closely analo- 
gous to the case which you present. There a statute referred to a 
vote of a town relating to a particular subject in the following 
language : " according to the vote of the said town of Shrewsbury, 
passed the second day of January in the present year." No vote 
was passed on that date, but a vote on that subject was passed on 



J. WESTON ALLEN, ATTORNEY-GENERAL. 211 

another date. The court construed the statute to refer to the vote 
which was actually passed. They said : — 

The reference would have been good without mentioning any date, 
and the date of the second of January, 1786, may be rejected as sur- 
plusage. 

See also Moran v. Somes, 154 Mass. 200. 

It is my opinion, as I have previously said, that the intention 
of the Legislature is clearly shown to have been to direct the 
transfer of the entire balance to the Port of Boston Fund; and 
that, paraphrasing the language used in Shrewsbury v. Boylston, 
supra, the reference to the balance would have been good without 
mentioning any sum, and the sum may be rejected as surplusage. 



Lien — Construction of State Highways — Shoeing of 
Horses — Sharpening Picks — Care of Tools — Labor 
performed or furnished. 

The shoeing of horses, the sharpening of picks and the taking care of other tools 
by a subcontractor in connection with the construction of a State highway 
is not labor performed or furnished, "used in the construction or repair of 
public buildings or other public works," within the intendment of G. L., 
c. 30, § 39. 

You have requested my opinion on the following facts: — xotheCom- 

'■ ^ '^ c missioner 

A subcontractor did certain work for a principal contractor ^o^ks^^'" 
who under contract constructed a State highway in the towns of jun^e\4. 
Dalton and Windsor, the labor that said subcontractor performed 
being shoeing of horses, sharpening of picks and taking care of 
other tools used in the construction of the highway. Your inquiry 
is whether or not the subcontractor performed labor of such a 
character as to enable him to enforce a claim under G. L., c. 30, 
§39. 

G. L., c. 30, § 39, reads as follows: — 

Officers or agents contracting in behalf of the commonwealth for the 
construction or repair of public buildings or other public works shall 



212 OPINIONS OF THE ATTORNEY-GENERAL. 

obtain sufficient security, by bond or other^vise, for pajonent by the 
contractor and sub-contractors for labor performed or furnished and for 
materials used in such construction or repair; but in order to obtain 
the benefit of such security, the claimant shall file with such officers or 
agents a sworn statement of his claim, within sixty days after the com- 
pletion of the work. 

In the case of Kennedy v. Commonwealth, 182 Mass. 480, 481, 
the court said : — 

We are of opinion that this statute gives security for payment for 
labor performed or furnished and for materials only when they are used 
in construction or repair in a way that would create a debt which might 
be a subject for a lien, under proper proceedings, if the structure belonged 
to a private person. There is nothing to indicate that security was 
intended to be given for every kind of labor and all kinds of materials 
that incidentall}^ promote the construction of a building when they do 
not enter into the construction. Such an interpretation of the statute 
would give security to a dealer who had sold workmen tools which they 
used in working upon the building, or to a horse trader who sold the 
contractor horses which were used in drawing materials for the building, 
and it would give security upon the proceeds of every contract upon 
which the tools or horses were used, until they were paid for. In a sense 
the tools and the horses would be used in the construction of the building. 

In George H. Sampson Co. v. Commonwealth, 202 Mass. 326, 334, 
the court, in citing the case of Schaghticoke Powder Co. v. Green- 
wich d' Johnsonville R.R., 183 N. Y. 306, quoted as follows: — 

A steam shovel, an engine and boiler, picks, shovels, crowbars and 
the like, are tools and appliances which, while used in the doing of the 
work, survive its performance and remain the property of their owner. 

In the case of Thomas v. Commonwealth, 215 Mass. 369, the 
court held that claims for " boards used for concrete forms and for 
conduits, for netting, cotton line, rules, road scraper, buggies 
used in transporting the help, use of scales, etc.," were all 
properly disallowed upon the principle of Kennedy v. Common- 
wealth, supra. 

In Bay State Dredging Co. v. W. H. Ellis & Son, 235 Mass. 263, 
a claim for the use of staging and falls was disallowed, the court 
saying: — 



J. WESTON ALLEN, ATTORNEY-GENERAL. 213 

They were not incorporated in the building, and the mere use of an 
appliance, however necessary or useful it may be to the prosecution of 
a contract for "the construction or repair of public buildings or other 
public works," is not labor performed or furnished or material used in 
such construction or repair within the reasonable intendment of R. L., 
c. 6, § 77. The claim has no standing under R. L., c. 6, § 77, 

In the case of Schultz v. C. H. Quereau Co., 210 N. Y. 257, this 
language was usied : — 

Thus it might be argued that upon the same principle coal that is 
used in portable engines, oil that is used in the lubrication of building 
machinery, and even food which is eaten by laborers, are all consumed 
in the construction of the building, and hence lienable materials. But 
all these things seem quite plainly distinguishable. They are at least 
one step further removed from the actual work of construction. They 
have neither physical contact nor immediate connection with the struc- 
ture at any time. They are used only to facilitate and make possible 
the operation of tools, machinery, or men, which in their turn act upon 
the structure. The authorities are unanimous in holding that no hen 
accrues for such materials. 

Under the line of decisions quoted above, I am of the opinion 
that the labor under consideration does not come within the terms 
of the statute, that it was a step removed from the actual work of 
construction, and that it served only to facilitate and make possible 
the operation of tools and horses by workmen employed directly 
upon the public structure. The labor, in my judgment, was of too 
remote a character to enable the subcontractor to establish a lien 
therefor. 



214 OPINIONS OF THE ATTORNEY-GENERAL. 



Elections — House of Representatives — Special Election 
— Order and Precept for Special Election — Decision 

OF THE HorSE as TO THE VALIDITY OF AN ELECTION. 

Under G. L., c. 54, § 141, a special precept issued by the Speaker of the House of 

Representatives, pursuant to an order of said House fixing the time for a 

special election to fill a vacancy in said House, is essential to the validity of 

such special election. 
An order of the House of Representatives fixing the time for a special election to 

fill a vacancy in said House is a condition precedent to the issue of a precept 

for such election by the Speaker of the House. 
Although the decision of the House of Representatives as to the validity of an 

election to the House cannot be reviewed by any other tribunal, the House 

has been accustomed to follow the rules of law. 

of^Repr?"^^ You ask mv opinion upon the following case. G. L., c. 54, § 141, 

sentatives. • j • , 

1921 provides, in part : — 

June 15. 



Upon a vacancy in the office of representative in the general court or 
upon failure to elect on the fourth Monday of November, the speaker 
of the house of representatives shall issue precepts to the aldermen of 
each city and the selectmen of each town comprising the district or any 
part thereof, appointing such time as the house of representatives maj' 
order for an election to fill such vacancy. Upon receipt of such precepts, 
the aldermen or the selectmen shall call an election, which shall be held 
in accordance with the precepts. 

A member of the House of Representatives will shortly file 
his resignation. As this resignation comes in while the House is 
not in session, it will be impossible for the House to pass any order 
fixing a date for a special election. In default of such action by 
the House, has the Speaker the legal right to call the special elec- 
tion? If the legal question is not raised by the cities and towns, 
could the House accept the newly elected member, thereby es- 
tablishing the validity of his election? 

1 . A precept is essential to the validity of a special election held 
to fill a vacancy in the House of Representatives. Case of Joseph 
Downe, Jr., Mass. Election Cases, 1780-1852, p. 244. See also 
Attorney-General v. Campbell, 191 Mass. 497, 501. Under this 
section an order of the House appointing the time of the special 
election is a condition precedent to the issue of the precept which 



J. WESTON ALLEN, ATTORNEY-GENERAL. 215 

calls the election at that time. The Fifteenth Amendment mani- 
festly^ does not apply to the special elections for which this section 
provides. If an order is not made by the House no special elec- 
tion can be held. See Mass. Election Cases, 1780-1852, Weston, 
pp. 67, 70; Milton, pp. 146, 150; Wilhraham, pp. 399, 401; Charles- 
toum, pp. 518, 521 . In the case of the Senate, an order of the Senate 
for a special election to fill a vacancy is required by the Twenty- 
fourth Amendment. This constitutional requirement as to the 
Senate indicates that this statutory requirement as to the House is 
mandatory instead of directory. I find no statute which authorizes 
the Speaker of the House to act without the order in case the House 
is not in session. I am therefore constrained to advise you that in 
my opinion the Speaker cannot legally issue the precept for a 
special election until the House has appointed the time for the 
election, by an order duly adopted. 

2. Mass. Const., pt. 2d, c. I, § III, art. X, provides, in part: — 

The house of representatives shall be the judge of the returns, elec- 
tions, and qualifications of its own members, as pointed out in the 
constitution. . . . 

The decision of the House as to the validity of an election to the 
House cannot be reviewed by any other tribunal. Indeed, the 
Legislature cannot constitutionally delegate to the judicial de- 
partment power to hear and determine this question. Dinan v. 
Swig, 223 Mass. 516. But while the power of the House over the 
subject is absolute, it may be proper to add that the House of 
Representatives has been accustomed in such cases to follow the 
rules of law. I Op. Atty.-Gen., 3, 8. 



216 OPINIONS OF the' attorney-general. 



Distribution of Personal Property — Illegitimate Child. 

Under G. L., c. 190, §§ 5 and 6, where an illegitimate child dies intestate, leaving 
personal property, his illegitimate brothers and sisters cannot share in his 
estate, but only those can share who would be entitled by inheritance through 
his mother if he had been legitimate. 

Bureau of I acknowlcdge receipt of your letter with reference to war risk 

Insurance. insurancc of a soldier who was a resident of Massachusetts, which 
June 21. you Say must be distributed as the personal property of the 

soldier under the laws of distribution of Massachusetts in case 
of intestacy. The facts which you state are that the soldier was 
an illegitimate child and was survived by an uncle, who was a 
legitimate brother of the soldier's mother, and by four brothers 
and two sisters, who were all illegitimate children of the soldier's 
mother. You ask my opinion as to what distribution should be 
made of the insurance in this case. 

With certain exceptions not now material, the personal prop- 
erty of a deceased person, who dies intestate, by the law of this 
Commonwealth is to be distributed according to the law governing 
the descent of real property. G. L., c. 190, § 2; Parhnan v. 
McCarthy, 149 Mass. 502. 

The statutes with reference to the descent of property of ille- 
gitimate children in G. L., c. 190, are as follows: — 

Section 5. An illegitimate child shall be heir of his mother and of 
any maternal ancestor, and the lawful issue of an illegitimate person 
shall represent such person and take by descent any estate which such 
person would have taken if living. 

Section 6. If an illegitimate child dies intestate and without issue 
who may la^vfully inherit his estate, such estate shall descend to his 
mother or, if she is not living, to the persons who would have been 
entitled thereto by inheritance through his mother if he had been a 
legitimate child. 

The soldier's brothers and sisters, w^ho were illegitimate children 
of his mother, cannot claim through her any part of the soldier's 
estate, because by section 5 they can take only from their mother 
and her lineal ancestors. Haraden v. Larrahee, 11,3 Mass. 430, 432. 

The soldier's uncle is a person who would have been entitled to 



J. WESTON ALLEN, ATTORNEY-GENERAL. 217 

the soldier's estate by inheritance through his mother if he had 
been a legitimate child. The uncle, therefore, inherits the soldier's 
property by virtue of section 6. Parkman v. McCarthy, supra. 

Since, as you state, the war risk insurance must be distributed as 
personal property of the soldier under the laws of distribution of 
Massachusetts in case of intestacy, my opinion is that the insurance 
should be paid to the uncle. 



Police Officer — Board of Health — Word "Detail." 

A police officer detailed to the board of health, under St. 1889, c. 450, § 7, as amended 
by St. 1911, c. 287, is subject to the rules and regulations of the police 
department. 

If a police officer so detailed is guilty of misconduct, he may be tried and punished 
by the police department, but not by the board of health. 

You ask mv opinion whether police officers detailed to the TothePoUce 

" Commissioner 

board of health by virtue of St. 1889, c. 450, § 7, as amended by "f Boston. 
St. 1911, c. 287, are subject to the rules and regulations of the J^^^e^T. 
police department so far as their personal conduct is concerned, 
and whether the health commissioner may properly try and 
penalize police officers so detailed. 

Said section 7, as amended, is as follows : — 

The police commissioner for the city of Boston shall, upon requisition 
by the board of health of said city, detail to the exclusive service and 
direction of said board of health, for enforcing the laws and ordinances 
relating to the preservation of health and to tenement and lodging 
houses, such number, not exceeding ten, of police officers satisfactory 
to the board of health as the board of health may desire, and the serv- 
ices of the police officers so detailed shall be paid for by said board of 
health, and said officers so detailed shall continue subject to the direc- 
tion of said board of health until exchanged for others at the request of 
said last-named board. Said police commissioner is hereby authorized 
and empowered to appoint patrolmen, in number not exceeding ten, to 
fill any vacancies in the police force in the city which may be caused 
by the detailing of officers as provided in this act. 

The word "detail," used as a transitive verb, means, specifically, 
"to set apart for a particular service." It is a word used chiefly 
in military law. Century Dictionary; Bouvier's Law Dictionary; 



218 OPINIONS OF THE ATTORNEY-GENERAL. 

Upshur V. Baltimore City, 94 Md. 743, 749; 18 C. J. 977. It has 
not the same meaning as the verb "transfer," and does not intend 
any change or rehnquishment of uHimate authority over the 
person detailed. 

The purpose of section 7 is to provide pohce officers to enforce 
the laws and ordinances described. If those detailed thereby lost 
their status as policemen they could not perform the duties which 
they are detailed to perform. They could not be "exchanged" 
as the act provides, since they could not be returned to the police 
force without a new examination and appointment under the civil 
service laws. To construe section 7 as providing for a transfer to a 
new and different service would bring that section into conflict 
with G. L., c. 31, §§ 43 and 44, which provide, in substance, that 
those in the classified civil service in general, and policemen in 
particular, cannot be transferred to any other office or employ- 
ment without their consent, except for just cause specifically 
stated in writing. I cannot place upon section 7 a construction 
which not only defeats its purpose but also brings it into conflict 
with the civil service law. In my opinion, the officers detailed do 
not thereby cease to be members of the police department. 

Although the officers detailed are for the time being in the exclu- 
sive service of the board of health, are paid by it, and are subject 
to its direction in respect to the duties to be performed, section 7 
does not create a special police force of ten men appurtenant to 
the board of health. Such a construction of section 7 might meet 
the objection that the officers detailed would otherwise cease to 
be policemen. It does not meet the difficulty as to exchanges or 
reconcile section 7 with the civil service law. But if the officers 
detailed remain members of the regular police department, they 
also remain subject to its rules and discipline. If any of them are 
guilty of misconduct, they may, upon proper complaint, be tried 
and punished under the regulations of the police department. If 
their service be unsatisfactory, the board of health, under section 
7, may request an exchange. But the power to try and punish is 
vested in the police department of which they are permanent 
members, and not in the board of health which they temporarily 
serve. 



J. WESTON AILEN, ATTORNEY-GENERAL. 219 



Pilot — Appointment — Qualification — Residence in the 
Commonwealth. 

Under G. L., c. 103, § 11, residence in this Commonwealth is not a necessary 
qualification for the office of pilot in the ports and places embraced by that 
section. 



You have requested my opinion as to whether or not you can to the 

Governi 

1921 
June 29. 



legally appoint a citizen of the United States and a resident of °mr°^' 



Newport, R. I., to the office of pilot of the port of Fall River, under 
the provisions of G. L., c. 103, § 11. The specific question raised 
by your inquiry is whether or not residence in this Commonwealth 
is a necessary qualification for the office of pilot. 
G. L., c. 103, § 11, reads as follows: — 

In all ports and places not mentioned in this chapter, for which pilots 
have been commissioned, the governor, with the advice and consent of 
the council, may appoint pilots, who shall hold their commissions during 
the pleasure of, and may at any time be suspended or removed by, the 
governor and council. 

I have examined the Constitution of this Commonwealth and 
the statutes, and it appears that there is no express provision which 
makes residence within this Commonwealth a necessary qualifica- 
tion for the office of pilot, and, in the absence of such an express 
provision, there seems to be no reason for holding that residence 
within this Commonwealth is necessary to eligibility to this office. 
Accordingly, I am of the opinion that you may, under the law, with 
the advice and consent of the Council, appoint a citizen of another 
State to the office of pilot for the port of Fall River. 



220 OPINIONS OF THE ATTORNEY-GENERAL. 



Representative to the General Court — Appointment to 
Position in the State Service — Salary. 

An appointment of a representative to the General Court to a public office, where 
the appointment is made after the regular session of the General Court, is 
not in violation of G. L., c. 30, § 21, prohibiting the payment of two salaries 
to the same person. 

Auditor. You ask if a representative to the General Court, who has been 

June 30. appointed, since the close of the annual session, registrar of vital 

statistics under G. L., c. 9, § 10, can properly draw the salary per- 
taining to that position. I assume that he has not resigned his 
office as representative. 

G. L., c. 30, § 21, provides: — 

A person shall not at the same time receive more than one salary 
from the treasury of the commonwealth. 

G. L., c. 3, § 9, is, in part, as follows: — 

Each member of the general court shall receive fifteen hundred dollars 
for each regular annual session of the term for which he is elected. . . . 

The position to which this man has been appointed is not one 
which the Constitution of this Commonwealth prohibits him from 
holding while a member of the Legislature. The regular annual 
session of the General Court for 1921 has ended, and the compen- 
sation which he has received is for services already rendered. He 
would not receive more than one salary from the Commonwealth 
if he is paid the salary pertaining to his new position. It is my 
opinion, therefore, that he is entitled to draw that salary. 

Should the General Court convene in special session during the 
year, or should he continue as representative in the regular session 
of 1922, he would not be entitled to compensation for the two 
offices. 

The question whether or not he would be entitled to sit in a 
special session during the current year, or in the regular session 
next year, is not before me, and I express no opinion upon it. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 221 

Trust Company in Possession of Commissioner of Banks — 
Right of Inspection of Books by Stockholders. 

Stockholders of a trust company in the possession of the Commissioner of Banks 
have no right, without an order of court, to inspect the company's books. 

G. L., c. 172, § 19, is inapplicable where a trust company is in the possession of the 
Commissioner of Banks. 

You have asked my opinion whether stockholders in a trust TotheCom- 

, missioner 

company now in the possession of the Commissioner of Banks ^^^^J"^^- 
have a right to inspect the books of the company, under G. L., J^^b^- 
c. 172, § 19. 

Chapter 172 relates to trus't companies. Section 19 is as 
follows : — 

The books of such corporation shall at all reasonable times be open 
for inspection to the stockholders and to beneficiaries under SLny trust 
held by such corporation. 

While the common-law right of a stockholder to inspect the 
books of a corporation is a qualified and not an absolute right, 
the right given by statute is absolute within the scope of the statute. 
Powelson v. Tennessee Eastern Electric Co., 220 Mass. 380; Shea 
V. Parker, 234 Mass. 592. The inquiry, therefore, must be directed 
to the question whether the section quoted is applicable when the 
trust company is in the possession of the Commissioner of Banks. 

The statute authorizing the Commissioner to take possession 
of a bank is a general statute applicable to all banks subject to 
the supervision of the Commissioner. The provisions of this 
statute appear in G. L., c. 167, §§ 22-36. These sections prescribe 
in detail the powers and duties of the Commissioner, and give 
to the Supreme Judicial Court jurisdiction in equity to act upon 
all applications and in all proceedings thereunder. They contain 
no provision that the Commissioner shall submit the books of the 
corporation in his control to the inspection of stockholders. On 
the other hand, section 2, relating to the examination of banks by 
the Commissioner, contains the following provision : — 



222 OPINIONS OF THE ATTORNEY-GENERAL. 

Such records, and information contained in reports of such banks, 
other than information required by law to be pubUshed or to be open 
to the inspection of the pubUc, shall be open only to the inspection of 
the commissioner, his deputy, examiners and assistants, and such other 
officers of the commonwealth as may have occasion and authority to 
inspect them in the performance of their official duties. . . . 

The reason for giving stockholders a right to inspect the books 
of a going trust company does not apply where the trust company 
is in the hands of the Commissioner for the purpose of liquidation. 
This distinction is well expressed by Judge Lacombe in Chable 
V. Nicaragua Canal Constr. Co., 59 Fed. Rep. 846: — 

When a corporation has suffered financial shipwreck, and its prop- 
erty and assets, including its books, come into the possession of the 
court and the custody of the court's officer, the receiver, the question 
whether or not an inspection of those books shall be accorded to a stock- 
holder in the shipwrecked concern is one resting in the discretion of the 
court, unhampered by any decisions touching such right of inspection 
while the corporation was still a going concern in the hands of its officers 
and directors. 

It is my opinion that upon a sound construction of G. L., c. 172, 
§ 19, in the light of G. L., c. 167, §§ 22-36, the former statute 
must be held to be inapplicable to cases of trust companies in the 
possession of the Commissioner of Banks, and that the Commis- 
sioner is not authorized by the provisions of said sections 22-36 to 
submit the books of a trust company in his possession to the in- 
spection of stockholders without an order of court requiring him 
to do so. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 223 



Taxation — Domestic Business Corporation — Return to 
Federal Government — Application for Abatement. 

A domestic business corporation which began to do business on April 29, 1919, 
and whose first Federal return was due May 15, 1920, is not required, in its 
return made under Gen. St. 1919, c. 355, pt. I, § 4, as of April 1, 1920, to 
make any statement of net income, and is taxable on the value of its corporate 
excess alone. 

It cannot be said as a matter of law that application for abatement of a tax illegally 
exacted, under G. L., c. 58, § 27, made within six months after payment of 
the tax, may not be amended, while still undecided, after the six months have 
run. 

You state that a Massachusetts business corporation was TotheCom- 

. . , , missioner 

assessed m 1920 an excise tax amountmsr to $683.63, based upon of Corporations 

® . 'ind Taxation. 

income reported in its 1920 excise tax return; that the income j^^'^\^ 
reported was for the fiscal year ending Feb. 29, 1920; and that 
the corporation had never filed with the Federal government a 
return for a previous fiscal year. The return shows on its face 
that the income reported was for the fiscal year ending Feb. 29, 
1920, that the corporation did not begin to do business until 
April 29, 1919, and that on the date of the return its Federal 
return had not been filed. 

The return and assessment were made under Gen. St. 1919, 
c. 355, pt. I. Section 2 of that act imposes an excise tax on do- 
mestic business corporations, based on a percentage of the value 
of its "corporate excess" and a percentage of its "net income" 
derived from business carried on within the Commonwealth. 
Section 3 provides that "the term 'net income' shall mean the 
net income for the taxable year as required to be reported by the 
corporation in its last prior return to the federal government as 
defined in the federal revenue act of nineteen hundred and eight- 
een," with certain deductions. The term "taxable year" is 
defined by section 1 to mean the fiscal year of the corporation. 
Section 4 requires a return to be filed as of April 1, "giving (a) a 
copy of such parts of its last federal return due ■prior thereto, as he 
[the Tax Commissioner] may designate." 

By the Federal Revenue Act of 1918 returns are required to be 
made on or before the fifteenth day of the third month following 



224 OPINIONS OF THE ATTORNEY-GENERAL. 

the close of the fiscal year [§ 227 (a)]. The fifteenth day of the 
third month following February 29 is May 15, and the return made 
to the Commonwealth as of April 1, 1920, should not have been 
based on the Federal return for the fiscal year ending Feb. 29, 
1920, due May 15, 1920, but on the Federal return, if any, due 
the previous year. But no Federal return was due in 1919, since 
the corporation did not commence business, and had no net income, 
prior to April 29, 1919. The tax, therefore, should have been 
assessed on the value of its corporate excess alone, and on that 
basis you say would have amounted to $154.50. 

You state that no application for abatement of the tax was 
made within thirty days of the date of notice of the assessment, 
but that within six months of the date of payment of the bill the 
corporation made application for a refund of a portion of the 
tax, under G. L., c. 58, § 27. That section provides as follows: — 

If it shall appear that a legacy and succession tax or a tax or excise 
upon a corporation, foreign or domestic, which has been paid to the 
commonwealth, was in whole or in part illegally exacted, the commis- 
sioner may, with the approval of the attorney-general, issue a certificate 
that the party aggrieved by such exaction is entitled to an abatement, 
stating the amount thereof. The treasurer shall pay the amount thus 
certified to have been illegally exacted, with interest, without any appro- 
priation therefor by the general court. No certificate for the abatement 
of any tax shall be issued under this section unless application therefor 
is made to the commissioner within the time prescribed by law for be- 
ginning legal proceedings to obtain a repayment of the tax. This section 
shall be in addition to and not in modification of any other remedies. 

You state that the ground of this application was that only 
one-third of the income should have been allocated to Massachu- 
setts, but that now the corporation requests refund of the entire 
difference between the amount assessed and the amount of the 
aforesaid minimum tax. 

An inspection of the papers shows that within six months of 
payment of the tax, under date of March 19, 1921, the corpora- 
tion made formal application for a refund of a portion of the tax 
so paid, under the provisions of G. L., c. 58, § 27, stating as 
grounds upon which the application was based a claim that the 



J. WESTON ALLEN, ATTORNEY-GENERAL. 225 

sole property of the corporation was real estate in Brooklyn, 
New York; that the corporation conducted no business except 
collecting rentals on said real estate; and that one-third of the 
net income should have been allocated to Massachusetts and no 
more. By a subsequent letter, dated April 14, 1921, and also 
within the six months' period, counsel for the corporation stated 
their understanding that two questions were involved: first, 
whether the corporation in fact was doing business outside of 
Massachusetts; and second, whether, if so, the tax collected in 
1920 should be regarded as an "illegal exaction," within the 
meaning of G. L., c. 58, § 27. It was suggested that the decision 
of the second question should be postponed until the first question 
should be settled in connection with the 1921 return. By a later 
letter, dated June 16, 1921, after the six months had run, atten- 
tion was first called to the error in the return, apparent on its 
face, in that income was reported where none should have been 
returned, and the claim was made that for that reason the tax 
was illegally assessed. I am of opinion that the excise tax of 
$683.63 assessed to the corporation was, except as to $154.50, 
"illegally exacted," within the meaning of G. L., c. 58, § 27. 

There is, however, a further question whether the application 
for an abatement was made in time. Application for an abate- 
ment was made within six months after the payment of the tax, 
but without clearly indicating the ground now urged. After the 
six months had run, but while the application still remained un- 
decided, the ground now urged was expressly brought forward, 
apparently by way of amendment. So long as a case remains 
undisposed of by final judgment, a court, in the exercise of a sound 
discretion, may allow any amendment which will enable the plain- 
tiff to sustain the action for the cause for which it was intended to 
be brought. Strout v. United Shoe Machinery Co., 215 Mass. 116, 
119; Clark v. New England Tel & Tel Co., 229 Mass. 1, 6. On 
the other hand, the court has no power to allow an amendment 
which, as matter of law, introduces a new cause of action. Knights 
V. Treasurer and Receiver General, 236 Mass. 336, 341 ; Church v. 
Boylsion & Woodbury Cafe Co., 218 Mass. 231. I assume that 
within the six months' period any amendment may be permitted, 



226 OPINIONS OF THE ATTORNEY-GENERAL. 

since a new application might still be made as of right. I cannot 
say, as matter of law, that the Commissioner has no discretion to 
permit an amendment after the six months' period has run, and 
I assume, without deciding, that this discretion is subject to the 
same limitations as the similar power of the court. 

Consideration of the present application does not enable me to 
say that the ground of application now urged is, as matter of law, 
so foreign to the ground indicated within the six months' period 
by the applicant that the Commissioner could not entertain it 
while the original application was still open and pending, even 
though the six months' period had elapsed. A different question 
might well be presented if the application had finally been disposed 
of before the amendment was brought forward, or if the amendment 
were in effect a new and different application filed after the six 
months' period had run. 

I therefore approve of the issuing of a certificate showing that 
the corporation is entitled to an abatement of the difference 
between the sum assessed and paid and $154.50. 



Great Ponds — Fishing — Public Rights — Al'thority of 
Selectmen of Towns. 

There is no authority in the selectmen of towns, in the absence of specific statutory 
authority, to restrict the right of the public to fish in any great pond of the 
Commonwealth. 

m'isskfn?"™' You ask if the selectmen of a town have authority to close a 

of Conserva- , i j n ^ • e l xIUj." 

tion. great pond to nshmg tor any length oi time. 

1921 o 1 

July 19. Since the Colony Ordinances of 1641-1647 great ponds have 

been dedicated to the public and have been subject to the public 
rights of fishing, fowling, boating, etc., except as otherwise di- 
rected by the General Court. The selectmen of a town have no 
authority over a great pond except as specifically authorized by 
statute, and as I find no such authority, it is my opinion that the 
selectmen of a town have no right to forbid the taking of fish in 
any great pond of this Commonwealth. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 227 



Savings Bank — Trustee — Eligibility after Bankruptcy 
OR Poor Debtor Proceedings. 

a trustee in a savings bank, discharged from office by reason of having taken the 
benefit of the bankruptcy or poor debtor laws, under G. L., c. 168, § 23, is 
not barred from subsequent election. 

You ask whether, under G. L., c. 168, § 23, a person who has TotheCom- 
once taken the benefit of any law of bankruptcy or insolvency, of Bank" 
or of the oath for the relief of poor debtors, is forever ineligible July i9. 
for election to the office of a trustee in a savings bank or institution 
for savings; and if not, when is such a person again eligible after 
having been disqualified. That portion of section 23 to which you 
call attention, which first appears in St. 1908, c. 590, § 34, is as 
follows : — 

The office of any trustee who takes the benefit of any law of bank- 
ruptcy or insolvency, or of the oath for the relief of poor debtors, shall 
thereby be vacated. 

In my opinion, the effect of this provision is merely to remove 
from office a trustee who takes the benefit of any law of bankruptcy 
or insolvency, or of the oath for the relief of poor debtors, and does 
not disqualify a person who has done so, whether or not he was a 
trustee at the time, from being afterwards elected a trustee of any 
savings bank or an institution for savings. 



Pauper — Settlement — Married Woman. 

Under G. L., c. 116, §§ 1 and 5, a woman who marries acquires her husband's 
settlement although she is a minor, and does not lose the settlement so de- 
rived by reason of five years' absence, if during part of the time she was a 
minor. 

You ask my opinion upon the following facts: A girl with a TotheCom- 
settlement in Pelham marries, when she is seventeen years old, a S'pibifc 
man with a settlement in Springfield. They moved to Northamp- 1921 ' 

ton and are absent five years from Pelham and Springfield. When 

the woman is twenty-two years old the man dies. I understand 
that the man did not acquire a new settlement in Northampton 



228 OPINIONS OF THE ATTORNEY-GENERAL. 

or elsewhere. You ask whether the widow has a settlement, and 
if so, where. 

G. L., c. 116, relating to the settlement of paupers, contains the 
following provisions : — 

Section 1. Legal settlements may be acquired in any town in the 
following manner and not otherwise: 

First, Except as provided in the following clause, each person who, 
after reaching the age of twenty-one has resided in any town within 
the commonwealth for five consecutive years, shall thereby acquire a 
settlement in such town. 

Second, A married woman shall follow and have the settlement of her 
husband; but if he has no settlement within the commonwealth, she 
shall retain the settlement, if any, which she had at the time of her 
marriage and may acquire a settlement under the preceding clause. 

Section 5. Each settlement existing on August twelfth, nineteen 
hundred and eleven, shall continue in force until changed or defeated 
under this chapter, but from and after said date absence for five con- 
secutive years by a person from a town where he had a settlement shall 
defeat such settlement. . . . 

By virtue of G. L., c. 116, § 1, cl. 2, the woman you refer to 
acquired a settlement in Springfield upon her marriage, although 
at the time she was a minor. Dalton v. Bernardston, 9 Mass. 201, 
203. But although a woman upon marriage derives a settlement 
from her husband, she does not lose her settlement because he loses 
his by reason of absence. Treasurer and Receiver-General v. Bos- 
ton, 229 Mass. 83. It follows, necessarily, that she can lose her 
settlement only by reason of her own absence, under the pro- 
visions of G. L., c. 116, § 5. 

The woman in the case you state, as well as her husband, was 
absent from Springfield for five consecutive years after her mar- 
riage. During part of the time, however, she was a minor. 

In my opinion to the Commissioner of State Aid and Pensions 
(V op. Atty-Gen. 471), to which you refer, I advised that a minor 
does not lose the local settlement which he had on his becom- 
ing of age, until five years thereafter. This opinion applies to 
the case under consideration. It follows that the widow has not 
lost the settlement derived from her husband, and that she now 
has a settlement in Springfield. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 229 



Fire Prevention — Rules and Regulations — Metropolitan 

District. 

Statement of successive steps necessary to be taken under G. L., c. 148, §§ 30, 39, 
40 and 11, and c. 30, § 37, for the establishment of rules and regulations re- 
lating to fire prevention in the metropolitan district. 

You ask my opinion what are the successive steps necessary to the Com- 
to be taken for the estabHshment of rules and regulations relating of PubUc 

... ,. ,. . Safety. 

to fire prevention in the metropolitan district. 1921 
These steps or conditions are defined in the following provisions 

of the General Laws : — 

G. L., c. 148, § 30, gives to the State Fire Marshal power within 

the metropolitan district, among other things — 

... to inspect or regulate, the keeping, storage, use, manufacture, . 
sale, handling, transportation or other disposition of gunpowder, dyna- 
mite, nitroglycerine, camphine or any similar fluids or compounds, crude 
petroleum or any of its products, or any explosive or inflammable fluids 
or compounds, tablets, torpedoes, rockets, toy pistols, fireworks, fire- 
crackers, or any other explosives, and the use of engines and furnaces 
as described in section one hundred and fifteen of chapter one hundred 
and forty; . . . 

G. L., c. 148, § 39, provides, in part, as follows: — 

In addition to the powers given by sections thirty to thirty-eight, 
inclusive, the marshal may make orders and rules relating to fires, fire 
protection and fire hazard binding throughout the metropolitan district, 
or part thereof, or binding upon any person or class of persons within 
said district, limited, however, to the following subjects: 



The subjects which follow are of particular application, and by 
no means cover the general subject of fires, fire protection and fire 
hazard or the subjects to which section 30 relates. 

G. L., c. 148, § 40, is as follows: — 

The marshal may provide that any rule shall apply generally through- 
out the metropolitan district or to any specified part thereof or to any 
class or description of premises. No such rules shall be established until 
after a public hearing, of which notice shall have been given by publi- 



230 OPINIONS OF THE ATTORNEY-GENERAL. 

cation for at least two successive weeks in at least two daily newspapers 
published in Boston and in two newspapers published in the metropolitan 
district outside of Boston. 

G. L., c. 148, § 11, is as follows: — 

The marshal shall submit to the commissioner rules and regulations 
to carry out the provisions of sections ten and thirty-nine, which shall 
take effect subject to section thirty-seven of chapter thirty when ap- 
proved by the commissioner and by the governor and council, and on 
such dates as they may fix. 

Section 10, referred to in said section 11, does not appl}' to the 
metropolitan district. See G. L., c. 148, § 2. 
G. L., c. 30, § 37, is as follows: — 

Every department, commission, board or official vested by law with 
the power to make and issue rules or 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 state 
secretary, and such rules or regulations, whether or not they require the 
approval of the governor and council, or other authoritj', before taking 
effect, shall not take effect until so filed. The foregoing provision shall 
not apply to rules or regulations issued by commissions, boards or offi- 
cials of towns, or to municipal ordinances or by-laws, or to rules or regu- 
lations affecting solely the internal management or discipline of a depart- 
ment, commission, board or office, nor to orders or decrees made in 
specific cases within the jurisdiction of a department, commission, board 
or official. The state secretary shall file and index all rules and regu- 
lations filed with him hereunder, noting and keeping available such 
references to preceding rules and regulations as maj^ be necessary for 
certification purposes. 

G. L., c. 148, § 40, provides a requirement which, in my opinion, 
is applicable to all rules for the metropolitan district. It may be 
that section 11 is not applicable to rules prepared under section 
30, but in view of G. L., c. 22, and G. L., c. 30, § 5, as well as of the 
general language of G. L., c. 148, § 11, in my opinion, it wull be 
better practice to carry out the same steps in all cases. The steps 
to be followed for the establishment of rules and regulations 
governing the metropolitan district are, therefore, as follows : — 



I 



J. WESTON ALLEN, ATTORNEY-GENERAL. 231 

1. There must be a public hearing and notice, as provided in 
G.L.,c. 148, §40. 

2. The rules and regulations must be submitted to the Com- 
missioner of Public Safety and approved by him. 

3. They must be submitted to the Governor and Council and 
approved by them. 

4. Copies must be filed with the Secretary of the Commonwealth 
as required by G. L., c. 30, § 37. 



Commonwealth — Liability on Note — Statute of 
Limitations. 

The Commonwealth is not obligated to pay either principal or interest on a note 
issued under St. 1793, e. 29, subject to redemption by payment when pro- 
vision should be made therefor, when provisions for part payments were 
made by successive acts until St. 1821, cc. 69 and 87, which provided for 
payment of the remainder before July 1, 1821, after which date interest was 
to cease. 

Under G. L., c. 258, § 5, the note, and interest thereon, was barred by the statute 
of limitations. 

The Treasurer and Receiver-General has no power to waive the bar of this statute. 

A request has recently been presented to you for payment of a to the 
note of the Commonwealth of Massachusetts, a copy of which is as Revive?- ^" 

„ ,, General. 

lOilOWS: 1921 

^ August 4. 

Commonwealth of Massachusetts. 

No. 1251. June 10. 1794. 

Be it known that there is due from the Commonwealth of Massa- 
chusetts unto Mr. Samuel Mather or bearer the sum of sixty-three 
dollars & sixty-two cents bearing interest at five per centum per annum 
from the first day of July, seventeen hundi'ed and ninety four, inclu- 
sively; payable half yearly, and subject to redemption by payment of 
said sum or any part thereof whenever provision shall be made therefor 
by law. 

Thomas Davis, 

Treasurer. 

You ask my opinion whether the Commonwealth is obligated 
to pay this note, with interest, and if so, the total amount involved 
in the payment, and also whether the bearer of the note is entitled 
to the proceeds. 



232 OPINIONS OF THE ATTORNEY-GENERAL. 

The note was issued under the provisions of St. 1793, c. 29, 
• entitled "An Act to provide for the debt of this Commonwealth," 

proposing a loan to the full amount of the debt, for which the sub- 
scribers were to receive certificates in the form above quoted. 

By St. 1802, c. 37, provision was made for paying off one-fifth 
of said debt and the issuing of new notes for the balance. From 
time to time thereafter other statutes were passed providing for 
payment of further portions of the debt (St. 1803, c. 37; St. 1808, 
c. 132; St. 1810, c. 25; St. 1818, c. 41; St. 1819, c. 43; St. 1821, 
c. 68), until by St. 1821, cc. 69 and 87, provision was made for 
payment of the remainder of the debt before July 1, 1821, after 
which date interest was to cease. 

The provision in the note, to the effect that it is "subject to 
redemption by payment of said sum or any part thereof whenever 
provision shall be made therefor by law," is to be interpreted as 
meaning that the note shall be payable when provision for pay- 
ment is made by the Legislature. United States v. North Carolina, 
136 U, S. 211, 220. Provision was made for payment of portions 
of the sum due from time to time prior to July 1, 1821, and for 
payment of the remainder at that time. Any claim which Samuel 
Mather or the bearer had on the note had therefore accrued on 
July 1, 1821, more than one hundred years ago. 

G. L., c. 258, § 5, provides as follows: — 

Laws relative to the limitation of actions shall apply to claims against 
the Commonwealth and to the remedj^ herein provided. 

By virtue of this provision the claim against the Commonwealth 
on the note referred to is barred by the statute of limitations. Cf. 
McRae v. Auditor General, 146 Mich. 594; State v. Ralston, 182 
Ind. 150. 

In my opinion, you have no power to waive the bar of the statute 
of limitations. That statute raises a presumption of payment. 
It is the duty of executive and administrative officers of the Com- 
monwealth to execute and administer the laws of the State as 
they are, and not in accordance with what may appear to the in- 
dividual official to be just and fair. Trowbridge v. Schmidt, 82 



J. WESTON ALLEN^ ATTORNEY-GENERAL. 233 

Miss. 475. In line with this view is my opinion to you under date 
of May 13, 1921, that you have not power to compromise a claim 
due to the Commonwealth. If the presumption of payment should 
be rebutted in fact, the moral obligation to repay it is one to be 
fulfilled by the Legislature, which alone has the power to fulfill 
the moral obligations of the people. Cf. United States v. Realty 
Co., 163 U. S. 427, 439, et seq. 

St. 1821, c. 87, contains a provision that interest on said State 
debt should cease after July 1, 1821. In the absence of such a 
provision no interest on the note would be payable after the date 
on which it was redeemable. United States v. North Carolina, 
supra. The statute of limitations, therefore, applies equally to 
the claim of interest. 

. In my opinion, you should refuse to pay both the principal and 
the interest upon this note. If the presumption of payment 
arising from the long lapse of time should be rebutted in fact, 
the remedy is with the Legislature. 



Tax Returns — Verification by Commissioner. 

The authority given to the Commissioner of Corporations and Taxation by G. L., 
c. 62, §§ 28 and 30, to verify returns and to require supplementary returns, 
is limited to cases where, for some particular reason, the Commissioner believes 
the return filed to be fraudulent or incorrect. 

You have asked me to advise you concerning the powers of the to the 
Commissioner of Corporations and Taxation in regard to the '1921 

matter of verifying returns of taxable income, your request being " 

accompanied by a letter to you on that subject. 

Pertinent provisions of the statutes appearing in G. L., c. 62, 
§§28 and 30, are as follows : — 

Section 28. If the commissioner shall, from information derived 
from the return or otherwise, be of opinion that any person whose income 
is taxable under this chapter may have failed to file a return, or to in- 
clude in a return filed, either intentionally or through error, all the 
sources of his taxable income, he may require from such person a return 
or a supplementary return on oath, in such form in each individual in- ■ 
stance as the commissioner prescribes, of all the sources from which the 



234 OPINIONS OF THE ATTORNEY-GENERAL. 

taxpayer received any income, whether or not taxable under this chapter 
in the year for which the return was made. . . . 

Section 30. In order to verify any return made pursuant to this 
chapter the commissioner may, within two years after September first 
of the year in which such return was due, if he has reason to beheve the 
return to be fraudulent or incorrect, direct by special authorization a 
deputy or other agent to verify the return; . . . 

The letter states that recently the Income Tax Division has 
undertaken to verify all returns showing income above a certain 
amount, without any pretense that the Commissioner has reason 
in each case to believe that the return was fraudulent or incorrect, 
and has sent peremptory notices to taxpayers who have filed 
returns in full compliance with the law, demanding that they- 
submit minute details as to their income, so that their returns may 
be verified; that with this demand is sent a blank form of supple- 
mentary income tax return, known as Form 301, which form re- 
quires the taxpayer to whom it is sent, pursuant to section 28, 
to list all the sources from which he has received any income, 
whether or not taxable, the information being required to be given 
in considerable detail. 

The authority given the Commissioner by section 28 to require 
supplementary returns is confined to instances where the Com- 
missioner is of opinion that the taxpayer has failed to include in 
his return, either intentionally or through error, all the sources 
of his taxable income. Similarly the authority given by section 
30 to verify returns is confined to cases where the Commissioner 
has reason to believe the return filed to be fraudulent or incorrect. 

I am of opinion that the authority thus granted is not a general 
authority to act in all or in any general class of cases, but that it 
is limited to cases where for some particular reason the Commis- 
sioner believes the return filed to be fraudulent or incorrect, and 
that if the Commissioner, acting through the Director of the 
Income Tax Division, has undertaken to verify all returns showing 
income above a certain amount, and has sent demands, accom- 
panied by supplementary income tax return blanks to be filled 



J. WESTON ALLEN, ATTORNEY-GENERAL. 235 

out, to all persons having income above that amount, he is acting 
in excess of his authority as to all cases not believed to be incorrect 
or fraudulent. 



Taxation — Correction of Tax. 

The remedies given by statute for correction of a tax are exclusive. 

Where, after payment of a tax assessed to a corporation, no application for abate- 
ment is made or petition is filed in court within the time allowed by law, the 
taxpayer has no legal claim against the Commonwealth on account of error 
in the assessment. 

The Legislature is the keeper of the conscience of the Commonwealth. 

I have your letter relative to the 1920 tax of the Boston & Maine to the Com- 
Railroad, in which you state that by error in the office of the Com- of corporations 

i>/^'' im** PI '*"*^ Taxation. 

missioner of Corporations and Taxation the amount of the tax . 1921 

August 16. 

was greater by $15,303.17 than it should have been. You say that 

it seems fair that this amount should be returned to the Boston 
& Maine Railroad, and ask my permission to make payment 
accordingly. 

I infer from your letter that the tax in the sum assessed has been 
paid by the Boston & Maine Railroad, and that no application 
for an abatement was made or petition filed in court within the 
time allowed by law. As the court has several times stated, the 
remedies given by statute are exclusive. The burden is put upon 
the taxpayer to discover errors which may be made in the compu- 
tation and assessment of his tax, and to apply for a correction 
thereof within a certain time. If he fails to avail himself of the 
exclusive remedy provided by law he has no legal claim against the 
Commonwealth. 

If in a particular case it appears that if the remedy had been 
seasonably invoked the taxpayer would have been entitled to an 
abatement, such claim, after the remedy is lost, rises no higher 
than a moral claim. It is manifestly impossible to entrust the 
conscience of the Commonwealth to a large number of executive 
or administrative officers. Differences in point of view would in 
such a case result in a government of men, not a government of 
laws. The Legislature is the keeper of the conscience of the Com- 



236 OPINIONS OF THE ATTORNEY-GENERAL. 

monwealth. See United States v. Realty Co., 163 U. S. 427. It 
has power to right an injustice, if, on due consideration, it finds 
that through accident or mistake a moral claim has arisen. If the 
legal claim has ceased to exist, the only remedy, in my opinion, 
is an application to the Legislature. See opinion to the Treasurer 
and Receiver-General under date of Aug. 4, 1921. 



August 16. 



Minimum Wage Commission — Decree — Publication of 
Names of Employers. 

Under G. L., c. 151, §§ 4 and 11, the Minimum Wage Commission is required to 
publish the names of employers who it has ascertained are not obeying its 
decrees. 

The members of the commission are not liable in an action for damages for pub- 
lishing the names of such employers, if the publication is made in good faith. 

mum \\^^ge' You statc that the Minimum Wage Commission, in 1920, entered 

ommission. ^ dccrcc for the paper box occupation establishing minimum rates, 
which became effective July 1, 1920; that several employers in 
the occupation have failed to comply with this decree, and have 
notified the commission in writing that they would not accept its 
recommendations; and that the commission has not as yet exer- 
cised the authority given in G. L., c. 151, § 4, to publish the names 
of employers whom it finds to be following or refusing to follow 
such recommendations; nor has the commission yet complied 
with the provisions of section 11, which appear to require the 
commission to publish the names of employers found to be violating 
such decree. 

You ask my opinion on the following questions : — 

1. Under the provisions of section 11 of chapter 151 of the General 
Laws is it mandatory upon the commission, having ascertained that 
certain employers in this occupation are not obeying its decree, includ- 
ing employers who have refused to accept the same, to publish the names 
of all such employers in the manner therein provided; or is it optional 
with the commission whether or not such action shall be taken? 

2. Are members of the commission liable in any action for damages 
for publishing the names of such employers, provided the publication 
is made in good faith in compliance with the provisions of said chapter 
151? 



J. WESTON ALLEN, ATTORNEY-GENERAL. 237 

G. L., c. 151, relates to the powers and duties of the Minimum 
Wage Commission. The commission was first estabUshed and its 
powers and duties provided in St. 1912, c. 706. 

Sections 1, 2 and 3 of said chapter 151 provide for the investi- 
gation of wages paid to female employees in any particular occupa- 
tion called in question, the establishment of a wage board to 
determine suitable minimum wages for female employees, learners, 
apprentices and minors, and the report of such determination to 
the commission. Section 4 requires the commission to review the 
report of the wage board, and, if it approves any or all of its deter- 
minations, to give a public hearing to employers paying less than 
the minimum wage approved, and if after such public hearing 
it finally approves the determination, to enter a decree of its 
findings. 

I understand that the procedure which you have followed has 
been in compliance with these provisions, and that the minimum 
wages determined by the wage board and approved by the com- 
mission are minimum wages for female employees, beginners and 
minors, respectively. 

Said section 4 continues as follows : — 

The commission shall thereafter publish at such times and in such 
manner as it may deem advisable a summary of its findings and of its 
recommendations. It shall also at such times and in such manner as it 
shall deem advisable publish the facts, as it may find them to be, as to 
the acceptance of its recommendations by the employers engaged in 
the industry to which any of its recommendations relate, and may pub- 
lish the names of employers whom it finds to be following or refusing 
to follow such recommendations. 

In St. 1912, c. 706, § 6, the commission was required to publish 
the names of such employers. This provision was changed in the 
following year, by St. 1913, c. 673, § 2, making publication 
permissive. 

Section 11 of said chapter 151 provides as follows: — 

The commission shall from time to time determine whether employers 
in each occupation investigated are obeying its decrees, and shall pub- 
lish in the manner provided in section four, the name of any employer 
whom it finds to be violating any such decree. 



238 OPINIONS OF THE ATTORNEY-GENERAL. 

This section was originally enacted in St. 1912, c. 706, § 14, and 
has not been changed. 

Section 4 appears to relate more specifically to the findings of the 
commission embodied in the "decree" therein referred to, while 
section 11 relates to subsequent findings to be made by the com- 
mission from time to time. While section 4 is permissive merely, 
section 11 is mandatory and requires the commission to publish 
the names of employers who are found not to be obeying its 
decrees. 

The provisions of this chapter have been held to be constitu- 
tional, since they contain no words of compulsion either upon 
employer or employee. Holcovihe \. Creamer, 231 Mass. 99. 
Section 11 (St. 1912, c. 706, § 14) is one of the sections specifically 
referred to in that case. It should be noted that in the decision 
it was pointed out that the word "decree," as used in the statute, 
is not used in its judicial sense but as meaning recommendation. 

I understand that you have determined since the entry of your 
decree that the employers to whom you refer have not been com- 
plying with your decree. I advise you, therefore, that under 
G. L., c. 151, § 11, it is mandatory upon the commission to publish 
the names of all such employers, in the manner therein provided. 

My answer to your second question, as to whether the members 
of the commission are liable in any action for damages for publish- 
ing the names of such employers, provided the publication is made 
in good faith, is that they are not liable. 

G. L., c. 151, § 13, provides as follows: — 

No member of the commission and no newspaper publisher, pro- 
prietor, editor or employee thereof, shall be liable to an action for dam- 
ages for publishing the name of any employer as provided for in this 
chapter, unless such publication contains some wilful misrepresentation. 

This section appears in similar language in St. 1912, c. 706, § 16. 
In Holcomhe v. Creamer, 231 Mass. 99, 111, the court says, with 
reference to said section 16, as follows: — 

It is not necessary to consider the scope and validity of § 15 of St. 
1912, c. 706, which purports to compel newspapers to publish notices 
and findings of the commission at its regular rates for space, and of § 16, 



I 



J. WESTON ALLEN, ATTORNEY-GENERAL. 239 

which purports to exonerate the commission and pubHshers and pro- 
prietors of newspapers from liability for damages for such publication, 
except for wilful misrepresentation. Those sections are not involved 
on this record and are left entirely open for future consideration. Even 
if they should be found to transcend in any respect the power of the 
Legislature under the Constitution, they are quite separable from the 
rest of the act. It cannot be thought that the rest of the statute would 
not have been enacted without them, and therefore the constitutionality 
of the sections here assailed would not be affected. 

While the court has thus reserved the question of the constitu- 
tionality of that section for future consideration, I can find no 
constitutional right or privilege of an employer which is violated 
thereby. There is no interference with any of the natural and 
inalienable rights discussed in the opinion in Holcombe v. Creamer, 
nor is there any interference with any vested right of such em- 
ployer. Wilso7i V. Head, 184 Mass. 515, 518. 

Even if G. L., c. 151, § 13, were unconstitutional for any reason, 
it would, nevertheless, be the duty of the commission, under section 
11, which has received the sanction of the court in Holcombe v. 
Creamer, to publish the names of employers found to be violating 
its decrees. Such publication in performance of the duty imposed 
upon them is a privileged communication which, if made in good 
faith, without malice and with reasonable cause to believe the 
statements contained therein to be true, cannot be the basis of any 
liability for libel. Howland v. Flood, 160 Mass. 509; Smith v. 
Higgins, 16 Gray, 251. 

Trust Company — Charter — Right of Purchaser after 

LiQUroATION. 

The charter of a corporation is the right given by general law or special statute to 
organize and conduct its business in accordance with its purposes and powers. 

Until a corporation is dissolved, even after it has ceased to do business, it con- 
tinues to be organized, with by-laws, stockholders and officers. 

The charter or franchise of a corporation is not in its nature transferable. 

G. L., c. 172, § 44, and c. 156, § 42, do not authorize the sale of the charter of a 
trust company, but only of its transferable assets. 

You ask my opinion concerning the right of the purchasers TotheCom- 
of the charter of a trust company which has been liquidated and of Banks. 
has ceased to do business, to organize and commence business as August 1 6 



240 OPINIONS OF THE ATTORNEY-GENERAL. 

a trust company in any manner other than as provided in G. L., 
c. 172. 

The charter of any corporation is the right given by general 
law or special statute to organize and conduct its business in 
accordance with its purposes and powers. It is its right to exist 
as a corporation. Adams v. Yazoo d' M. B. R. Co., 77 Miss. 194, 
253; Whittenion Mills v. U-pton, 10 Gray, 582, 585. So long as a 
corporation is not dissolved, it has that right except in so far as 
the enjoyment of tke right may be restricted by law. A corpora- 
tion may be dissolved either by legislative act or by judicial pro- 
ceedings when authorized by statute, and in no other way. Farrar 
V. PiUsbury, 217 Mass. 330, 335; Olds v. City Trust, etc., Co. of 
Philadelphia, 185 Mass. 500, 505; Folger v. Columbian Ins. Co., 
99 Mass. 267, 276; Rice v. National Bank of the Commonwealth, 
126 Mass. 300, 304; CommonwealtJi v. Vnion Ins. Co., 5 IMass. 
230, 232. Cf. G. L., c. 155, § 50; c. 167, § 22. Ceasing to do busi- 
ness and liquidation of its affairs does not effect a dissolution. 
Russell V. M'Lellan, 14 Pick. 63; Revere v. Boston Copper Co., 15 
Pick. 351; Boston Glass Manufactory v. Langdon, 24 Pick. 49, 
52-54; Heard v. Talbot, 7 Gray, 113; Packard v. Old Colony 
Railroad, 168 Mass. 92, 99. 

A corporation once organized continues to be organized until 
it is dissolved. Its members, the stockliolders, change from time 
to time as shares of its stock are transferred. Its officers are 
elected by the stockholders or directors. Its by-laws and the 
statutes are the rules governing its conduct. Even after a cor- 
poration has ceased to do business, so long as it is not dissolved it 
continues to have stockholders, its by-laws continue in force, and 
its officers should continue to be elected conformably to law. 

G. L., c. 172, contains specific provisions governing the election 
of officers and directors, the adoption of by-laws, and the issuing of 
stock by trust companies. While other pro^'isions may be inap- 
plicable to a trust company which has ceased to do business, in 
my opinion these are not. 

The charter or franchise to be a corporation is not in its nature 
transferable. In many instances acts of the Legislature have pur- 
ported to authorize such transfers. But the true nature of such 



J. WESTON ALLEN, ATTORNEY-GENERAL. 241 

transactions is a surrender of its charter by the transferring cor- 
poration, thus working a dissolution, and a grant de novo of a 
similar charter to the transferee. This may be done by authority 
of the Legislature, but not otherwise. Commonwealth v. Smith, 10 
Allen, 448, 455, 456; Memphis, etc., R.R. Co. v. Railroad Commis- 
sioners, 112 U. S. 609, 619-623; State v. Sherman, 22 Ohio St. 411, 
428; Morawetz on Corporations, §§ 924, 928. 

You ask specifically whether the owners of the charter of the 
Puritan Trust Company, which was purchased by the Tremont 
Trust Company and later sold, may now organize and commence 
business as a trust company without complying with G. L., 
c. 172, and especially sections 6, 7 and 8. My reply is that the trust 
company is already organized under an agreement of association 
now in existence; that it has a name and location; that it has 
stockliolders, and should have officers; that any vacancies may 
be filled in the manner provided in the statute; and that it may 
at any time proceed to carry on the business of a trust company, 
subject, however, to the requirements of the law as to sufficiency 
of assets, et cetera. In this connection I refer you to G. L., c. 167, 
§§ 22, 23, and c. 172. 

You call my attention to an opinion of my predecessor to the 
Bank Commissioner under date of Dec. 9, 1919. That opinion 
was that the purchase of the franchise of the Puritan Trust Com- 
pany by the Tremont Trust Company did not work a merger of 
the two franchises. I assume that the conclusion is correct. But 
the opinion contains an assumption, apparently based upon the 
language of the inquiry, which in turn rested on the language of 
St. 1914, c. 504, § 2, and St. 1903, c. 437, § 40, that the franchise, 
or charter, of the Puritan Trust Company was acquired by the 
Tremont Trust Company, with which I do not agree. 

St. 1914, c. 504, §,2, appears in G. L., c. 172, § 44, as 
follows : — 

No trust company shall be merged in or consolidated with another 
trust company except under the provisions of sections forty-two and 
forty-six of chapter one hundred and fifty-six, which are hereby made 
appHcable to the sale or exchange of all the property and assets, includ- 
ing the good will and corporate franchise, of a trust company. 



242 OPINIONS OF THE ATTORNEY-GENERAL. 

G. L., c. 156, § 46, merely provides remedies for minority stock- 
holders. G. L., c. 156, § 42, contains a portion of St. 1903, c. 437, 
§ 40, in the following words: — 

Every corporation may, at a meeting duly called for the purpose, by 
vote of two thirds of each class of stock outstanding and entitled to vote, 
or by a larger vote if the agreement of association or act of incorporation 
so requires, change its corporate name, the nature of its business, the 
classes of its capital stock subsequently to be issued and their preferences 
and voting power, or make any other lawful amendment or alteration in 
its agreement of association or articles or organization, or in the cor- 
responding provisions of its act of incorporation, or authorize the sale, 
lease or exchange of all its property and assets, including its good will, 
upon such terms and conditions as it deems expedient. 

St. 1903, c. 437, § 40, contains the words "and its corporate 
franchise" after the words "good will." These words are omitted 
in the General Laws, with no explanation of the reason for such 
omission, although they still appear in G. L., c. 172, § 44. 

I am informed that these words were omitted in G. L., c. 156, 
§ 42, because it was the view of the commissioners that a corporate 
franchise is not a transferable asset. With that view I am in 
accord. I am of the opinion that the sections quoted do not au- 
thorize the sale of the charter of a trust company in such a way 
as to nullify or render inapplicable the statutes and principles 
which I have referred to and defined. 



Elections — Expenditures by or on Behalf of Candidates 
FOR City Offices. 

Under G. L., c. 55, § 1, the amount which a candidate may spend for a city office 
is determined by the number of registered voters qualified to vote at the 
next preceding election, whether State or city. 

se°crltlr ^- ^•' ^' ^^' ^ ^' enumerates the sums which may be spent by 

August 16. or on behalf of candidates for certain offices, and further provides, 
in part : — 

A candidate for any other office may expend an amount not exceed- 
ing twenty dollars for each one thousand, or major portion thereof, of 



J. WESTON ALLEN, ATTORNEY-GENERAL. 243 

the registered voters qualified to vote for candidates for the office in 
question at the next preceding election; but no such candidate shall 
expend more than fifteen hundred dollars for the expenses of a primary, 
nor more than three thousand dollars for the expenses of an election. 
Any candidate may, however, expend a sum not exceeding two hundred 
dollars for primary or election expenses. Contributions by a candidate 
to political committees shall be included in the foregoing sums. 

You inquire whether the amount which may be spent by a 
candidate for a city office is based upon the number of registered 
voters at the next preceding city election or the next preceding 
election, whether State or city. 

For many years the practice has been to count the number of 
voters registered at the time of each election, whether State or 
city, even though some of such voters were qualified to vote for 
candidates for particular offices only, and even though such offices 
were not in issue at such election. Each election, therefore, fur- 
nishes a definite measure of the election expenses permitted at the 
succeeding election. As all registered voters are now qualified to 
vote for all offices by reason of the adoption of the Nineteenth 
Amendment to the Federal Constitution and the passage of en- 
abling legislation in conformity therewith, the provision that the 
voters to be counted must be qualified to vote for the office in 
question has ceased to have significance. I am therefore of opinion 
that the next preceding election, whether State or city, is the 
election designated by the act. 



Houses of Correction — Transfer. 

The Commissioner of Correction, under G. L., c. 127, § 105, is authorized to transfer 
all the prisoners from one house of correction to another for any purpose within 
his discretion. 

You ask me to advise you whether, under existing statutes, To the Com- 
your department has the power to transfer all of the inmates from of correction. 

-7 f f ^ ^ 1921 

one or more of the houses of correction, thereby leaving no prison- A ugust i 7. 
ers therein, such action being taken against the objection of those 
charged with the maintenance thereof. 
G. L., c. 127, § 105, Ts as follows: — 



244 OPINIONS OF THE ATTORNEY-GENERAL. 

He [the commissioner] may remove a prisoner from one house of 
correction to another in the same or another county. 

This statute, as originally enacted, St. 1870, c. 370, § 2, was as 
follows : — 

The commissioners of prisons shall, as far as practicable, classify all 
prisoners held under sentence in all the jails and houses of correction in 
the state, or that may be committed thereto at any time hereafter, 
having reference to sex, age, character, condition and offences, and in 
such a manner as to promote the reformation, safe custody, and economy 
of support of the prisoners, and the separation of male and female pris- 
oners; and for this purpose may remove prisoners from one jail to another 
jail in the same or in any other county, and from one house of correction 
to another in the same or in any other county, and the said prisoners 
shall serve the remainder of their terms of sentence in the prisons to 
which they shall be so removed from time to time. 

Said provision appears in the Public Statutes (P. S., c. 219, § 4) 
in the following form : — 

They- shall, as far as practicable, classify all prisoners that have been 
or may be sentenced and committed to the jails and houses of correc- 
tion, having reference to sex, age, character, condition, and offences, 
and in such a manner as to promote the reformation, safe custody, and 
economy of support of the prisoners, and the separation of male and 
female prisoners; and for this purpose they may remove prisoners from 
one jail to another and from one house of correction to another in the 
same or in any other county; and such prisoners shall serve the re- 
mainder of their terms of sentence in the prisons to which thej'' are so 
removed from time to time. 

No subsequent change was made until the Revised Laws were 
enacted, when the statute was changed to a form similar to that 
in which it now appears. 

R. L., c. 225, § 91, is as follows: — 

They may remove a prisoner from one house of correction to another 
in the same or another county. 

No explanation appears in the report of the commissioners of 
the reason for the omission of the statement of pm-poses for which 



J. WESTON ALLEN, ATTORNEY-GENERAL. 245 

prisoners may be removed. Certainly, the provision in the Re- 
vised Laws is not to be interpreted as having a narrower appHca- 
tion than the provisions of the earher statutes. Cf. Bent v. 
Huhhardsion, 138 Mass. 99. 

The natural inference to be drawn from the omission would seem 
to be that the Commissioner is authorized to transfer prisoners 
from one house of correction to another, not only for the purpose 
of classification, but for any other purpose within his discretion. 

You refer also to other sections of said chapter 127 and to G. L., 
c. 126, § 8, requiring the county commissioner in each county, 
except Dukes County, to provide a house or houses of correction. 
I do not see that these provisions have any particular application. 

It is my opinion that the Commissioner has the power to remove 
all the prisoners from one or more houses of correction to others, 
in accordance with the provisions of G. L., c. 127, § 105. 



Sale of Securities — Registration. 

Where a partnership is registered as a broker, under St. 1921, c. 499, the partners 
may sell securities on behalf of the firm without being personally registered 
as brokers or salesmen. 

Where a corporation is registered as a broker, under St. 1921, c. 499, as a general 
rule an officer who regularly engages in the business of selling or acquiring 
for sale securities on behalf of the corporation should be registered as a sales- 
man, but an officer need not be registered in order to make an occasional 
purchase or sale. 

The commission of which you are chairman has requested my xotheDepart- 
opinion upon the following points in connection with the operation Puwic utilities 
of St. 1921, c. 499. AuSi7. 

1. If a corporation registers as a broker under said act, does such 
registration include the officers of the corporation, or is it necessary 
that the officers of the corporation, if they desire to sell securities, take 
out registration as salesmen? 

2. If a partnership registers as a broker under said act, does such 
registration include the partners, or is it necessary for each partner to 
take out registration as a salesman? 

Said chapter 499 contains the following provisions : — 



246 OPINIONS OF THE ATTORNEY-GENERAL. 

Section 2. The following words and phrases, as used in this chap- 
ter, shall have the following meanings, unless the context otherwise 
requires : — 

(b) "Person" shall include a natural person, a corporation created 
under the laws of this commonwealth or of any other state, country or 
sovereignty, a partnership, an association, a joint stock compan}^, a 
trust and a trustee or any beneficiary, agent or other person as herein 
defined acting under a trust, and any unincorporated organization. 

(e) "Broker" shall include everj^ person, other than a salesman, who 
in this commonwealth engages either for all or part of his time, directly 
or through an agent, in the business of selling any security issued by 
himself or another person, or of purchasing or otherwise acquiring such 
securities for another with the purpose of reseUing them, or of offering 
them for sale to the public, for a commission or at a profit. 

(/) "Salesman" shall include every person employed or appointed or 
authorized by a broker to sell in any manner within this commonwealth. 

Section 8. No person shall sell securities within this commonwealth 
as broker or salesman unless he has been registered by the commission. 
Any person may become registered upon complying with the provisions 
of this section. . . . 

I assume that by the questions propounded the commission 
means to inquire whether the officers of a corporation and the 
partners composing a partnership may act for the corporation 
and the partnership, respectively, in selling securities, without 
additional registration. Of course, neither officers nor partners 
may act as broker or salesman, on their own account, unless 
registered. 

A corporation can act only through its officers and agents, and 
is bound by their action within the apparent scope of their au- 
thority. Fay V. Noble, 12 Cush. 1, 18; Kennebec Co. v. Augiista 
Ins. etc., Co., 6 Gray, 204, 209; In re Wm. S. Butler & Co. Inc., 
207 Fed. Rep. 705, 713; American Soda Fountain Co. v. Stolzen- 
bach, 75 N. J. L., 721, 726. 

Similarly, a partnership must act through, and is represented 
by, the partners. Kennebec Co. v. Augusta Ins. etc., Co., 6 Gray, 
204, 207; Craig v. Warner, 216 Mass. 386, 393. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 247 

In my opinion, where a partnership is registered as a broker 
under the act, the partners may sell securities on behalf of the firm 
without being personally registered as brokers or salesmen. 

In the case of a corporation, the question depends upon the 
circumstances of each particular case. Without in any way 
attempting to forecast the decision in particular cases which have 
not as yet arisen in concrete form, I may suggest the general prin- 
ciple which is to be applied in determining the question of regis- 
tration. An officer who regularly engages, either for the whole 
or part of his time, in the business of selling or acquiring on behalf 
of the corporation securities for the purpose of selling or offering 
them for sale to the public for a commission or at a profit must, 
in my opinion, be registered as a salesman, no matter what his 
office may be. On the other hand, an officer who has authority 
to so acquire or sell, but who is regularly engaged in the duties 
appertaining to his office, which do not include the acquiring and 
selling of securities, need not register as a salesman in order to 
make an occasional purchase or sale. In the latter case the pur- 
chase or sale may well be deemed to be made by the corporation 
through the officer, rather than by a salesman acting on its behalf. 

I may, however, point out that if the corporation takes the 
ground that the officer making the sale need not be registered 
because the corporation itself makes the sale, the corporation 
assumes the resulting responsibility, and may have its license as a 
broker revoked if the sale be fraudulent. 



Constitutional Law — Justice of the Peace — Right of 
Women to Appointment. 

The office of justice of the peace, being a judicial office, is one from which women 

are excluded by the State Constitution. 
St. 1921, c. 449, § 3, does not purport to make women eligible to hold the office of 

justice of the peace. 

You have asked me to advise you relative to the request of a Tothe 

, , , . I, . • . » , Governor. 

town clerk, who is a woman, tor appointment as a justice oi the 1921 

,.,,,,. August 18. 

peace for the purpose of solemnizing marriages while holding the 

office of town clerk. 



248 OPINIONS OF THE ATTORNEY-GENERAL. 

The following statutes are material to the question which you 
ask. 

G. L., c. 207, § 38, is, in part, as follows: — 

A marriage may be solemnized in any place within the common- 
wealth ... by a justice of the peace if he is also clerk or assistant clerk 
of a town ... in the town where he holds such office. . . . 

G. L., c. 222, § 1, is as follows: — 

Justices of the peace and notaries public shall be appointed, and 
their commissions shall be issued, for the commonwealth, and they 
shall have jurisdiction throughout the commonwealth except as pro- 
vided in section thirty-six of chapter two hundred and eighteen. Unless 
otherwise expressly provided they may administer oaths or affirmations 
in all cases in which an oath or affirmation is required, and take ac- 
knowledgments of deeds and other instruments. 

G. L., c. 222, § 2, is as follows: — 

The governor, with the advice and consent of the council, may ap- 
point as special commissioners for terms of seven years, women who are 
more than twenty-one years of age. Special commissioners shall have 
like power as justices of the peace to administer oaths, to take deposi- 
tions, affidavits, acknowledgments of deeds and other instruments and 
to issue summonses for witnesses. They shall be entitled to like fees 
as justices of the peace for like services. A change in the name of a 
special commissioner shall terminate her commission, but she may be 
reappointed under her new name. 

The office of justice of the peace is a judicial office, and is 
recognized as such by the State Constitution. It is, accordingly, 
an office which under the Constitution a woman is not eligible to 
hold. Ojnnion of the Justices, 107 Mass. 604; Oinnion of the Jus- 
tices, 150 Mass. 586; Opinion of the Justices, 165 Mass. 599; Opin- 
ion of the Justices, 237 Mass. 591 ; V Op. Atty.-Gen. 479. 

In recognition of this principle, the Legislature has provided 
(G. L., c. 222, § 2, quoted above) for the appointment of women 
as special commissioners, with like power as justices of the peace 
in the respects enumerated in that section. The powers therein 
enumerated, however, do not include the power to solemnize 



J. WESTON ALLEN, ATTORNEY-GENERAL. 249 

marriages. That power by G. L., c. 207, § 38, may be exercised 
by certain persons, including justices of the peace who are clerks 
or assistant clerks of towns, but not including special commis- 
sioners. 

The Nineteenth Amendment to the Federal Constitution has 
not enlarged the right of w^omen in respect to holding office, and 
therefore does not confer upon the applicant the right to appoint- 
ment to the office of justice of the peace. See Oyinion of the 
Justices, 237 Mass. 591. 

St. 1921, c. 449, § 3, provides, in part: — 

Chapter thirty of the General Laws is hereby amended by inserting 
after section seven the following new section: — Section 7 A. Women 
shall be eligible to election or appointment to all state offices, positions, 
appointments and employments, except those from which they may be 
excluded by the constitution of the commonwealth. ... 

The office of justice of the peace is one from which, as I have 
stated, women are excluded by the State Constitution. It follows 
that this statute does not make a woman eligible to appointment 
as a justice of the peace, and furthermore, even if it purported to, 
it would not be effective to modify the law, which is derived from 
the Constitution itself. 

I must therefore advise you that the applicant, being a woman, 
is not eligible to appointment as a justice of the peace. 



Trust Company — Investments — Limit of Liabilities of 
Any One Person. 

There is no limit to the amount to which a trust company may invest its funds 

in the stock of a single corporation. 
There is no limit to the amount of bonds of a corporation which may be held by a 

trust company, unless they are acquired as a part of a transaction by which 

a loan is made contrary to G. L., c. 172, § 40. 

You ask my opinion whether investments of a trust company, to the Com 

. missioner 

having a capital stock of $200,000, m the stock ot a corporation of Banks. 
to the amount of over $200,000 and in the bonds of another cor- A ugust 2 3. 



250 OPINIONS OF THE ATTORNEY-GENERAL. ■ 

poration to the amount of over S80,000 are a violation of G. L., 
c. 172, § 40. 

Said section provides, in part, as follows: — 

The total liabilities of a person, other than cities or towns, including 
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 hundred thousand dollars or more shall at no time 
exceed one fifth part of the surplus account and of such amount of the 
capital stock 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; . . . 

G. L., c. 172, § 33, is as follows: — 

Such corporation maj', subject to the limitations of the following 
section, advance money or credits, whether capital or general deposits, 
on real estate situated in the commonwealth and on personal security, 
on terms to be agreed upon, and also invest its money or credits, whether 
capital or general deposits, in the stocks, bonds or other evidences of 
indebtedness of corporations or of governments, both foreign and 
domestic. 

It is clear that there is no limit to the amount to which a trust 
company may invest its funds in the stock of a single corporation. 
It remains to consider whether section 40 imposes a limit to the 
amount of authorized investment in the bonds of a corporation. 

Section 40 limits the total liabilities to a trust company which 
a person may incur for money borrowed from and drafts drawn 
on such corporation. There is no limit to the amount of bonds of 
a corporation which may be held by a trust company if there is no 
violation of section 40, and there is no violation of that section 
unless there is a loan or acceptance of draft by the trust company. 

A loan of money is the furnishing of money by one party to 
another on an agreement for repayment. Payne v. Gardiner, 29 
N. Y. 146, 167. The purchase of a bond from a third person is an 
entirely different transaction. No doubt, however, a loan may 
be made as a part of a transaction by which a bond is given. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 251 

Legal Tender Case, 110 U. S. 421, 444. The statutes themselves 
indicate a distinction made by the Legislature between loans and 
other investments. G. L., c. 168, § 54; c. 172, §§ 51, 61; c. 173, 
§§2,4. 

My answer to your inquiry is that there has been no violation 
of section 40 in the case you state unless there has been a loan of 
money, as defined above, by the trust company to the corporation 
in excess of the limit imposed. See V Op. Atty.-Gen. 219. 



Special Commission on Necessaries of Life — Authority to 

INVESTIGATE PrICES OF LaUNDRY WoRK — COMMODITIES — 

Necessaries of Life. 

In St. 1921, c. 325, § 2, the word "commodities" means articles of merchandise, 

such as fuel, and does not include labor or other service. 
Laundry work is not a necessary of life, within the meaning of St. 1921, c. 325, § 2. 
Laundry work does not relate to or affect the production, transportation or sale 

of commodities which are necessaries of life, within the meaning of St. 1921, 

c. 325, § 2. 
It follows that the commission is not authorized to investigate circumstances 

affecting the prices of laundry work. 

You ask my opinion, in substance, whether the commission has To the Special 

I . 1 o in->i onr • • • p i i Commission on 

authority, under St. 1921, c. 325, to investigate prices oi laundry the Necessaries 
work. ° 192^1' , 

August 26. 

The subject-matters to which the authority of the commission 
extends are defined by St. 1921, c. 325, § 2. Said section is as 
follows : — 

It shall be the duty of the commission to study and investigate the 
circumstances affecting the prices of fuel and other commodities which 
are necessaries of life. The commission may inquire into all matters 
relating to the production, transportation, distribution and sale of the 
said commodities, and into all facts and circumstances relating to the 
cost of production, wholesale and retail prices and the method pursued 
in the conduct of the business of any persons, firms, or corporations 
engaged in the production, transportation, or sale of the said commod- 
ities, or of any business which relates to or affects the same. It shall 
also be the duty of the said commission to study and investigate the 
circumstances affecting the charges for rent of property used for living 
quarters, and in such investigation the commission may inquire into 
all matters relating to charges for rent. . . . 



252 OPINIONS OF THE ATTORNEY-GENERAL. 

The question on which you ask my opinion depends primarily 
for its answer on the proper construction of the words "fuel and 
other commodities which are necessaries of life." If laundry 
work is a commodity which is a necessary of life, within the mean- 
ing of those words as used in said section, the commission is au- 
thorized to investigate the circumstances affecting the prices of 
laundry w^ork, with all the powers granted by St. 1921, c. 325; 
otherwise not, unless authority is given by the inclusion of the 
clause "or of any business which relates to or affects the same." 

The words "necessaries of life" first made their appearance in 
our statutes, so far as I can ascertain, in St. 1898, c. 548, § 1, 
popularly known as the "Dubuque law," providing equitable 
process after judgment in cases where the judgment is founded on 
a claim for necessaries of life. By St. 1901, c. 176, this statute was 
amended by including claims for work or labor performed by the 
creditor for the debtor. The words next occur in the " Common- 
wealth Defense Act of 1917," Gen. St. 1917, c. 342, after the 
United States had become engaged in the World War. By section 
23 of that act the Governor was authorized to investigate circum- 
stances relating to "food or other necessaries of life." 

By Gen. St. 1919, c. 341, a Special Commission on the Neces- 
saries of Life was established, the duties and powers of which were 
defined in section 1 substantially as in the first two sentences of 
St. 1921, c. 325, § 2. This act was amended by Gen. St. 1919, 
c. 365, by adding a clause substantially like the last sentence of 
said section 2. 

The term of service of the commission was extended and certain 
provisions of Gen. St. 1917, c. 342, were continued by St. 1920, 
c. 628. 

The words "necessaries of life" also appear in article XL VII 
of the amendments to the Constitution of Massachusetts, 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 public 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. WESTON ALLEN, ATTORNEY-GENERAL. 253 

In an act of Congress "to provide further for the national 
security and defense" (act, Aug. 10, 1917, c. 53, as amended by 
act, Oct. 22, 1919, c. 80) measures are provided for conserving 
foods, feeds, wearing apparel, fuel, and articles required for the 
production thereof, which in the act are called "necessaries." 

"Commodity" is a word of comprehensive signification. S. S. 
White Dental Mfg. Co. v.* Commonwealth, 212 Mass. 35, 38. It is a 
general term "which signifies convenience, privilege, profit, and 
gains, as well as goods and wares." Portland Bank v. Apihory, 12 
Mass. 252, 256. But the word has also commonly a more restricted 
meaning as signifying an article of merchandise. Century Diction- 
ary. It is to be determined in the present instance whether the 
word is to be given its general or its more restricted meaning. 

In the statute under consideration the word "commodities" is 
used as applicable to things which are capable of "production, 
transportation, distribution and sale." It is used in conjunction 
with the word "fuel," and therefore, by the principle of ejusdem 
generis, its application should be confined to things of similar im- 
port. Clark V. Gaskarth, 8 Taunt. 431; Renick v. Boyd, 99 Pa. 
St. 555; Matter of Hermance, 71 N. Y. 481, 486, 487; People v. 
N. Y., etc., Ry. Co., 84 N. Y. 565, 568, 569; The J. Doherty, 207 
Fed. Rep. 997, 999, 1000; Endlich, Interpretation of Statutes, 
§§ 405, 406 ; cf. Reed v. Tarbell, 4 Met. 93, 101 . 

Laundry work is labor or service. Any materials used are 
incidental to the labor performed. It is not a subject of production 
or transportation, nor is it an article of merchandise. In my 
opinion, the Legislature, in using the word "commodities" in 
this statute, did not mean to extend the authority of the commis- 
sion beyond articles of merchandise, such as fuel, which are neces- 
saries of life, or to include within its scope labor and other service, 
except in so far as they are included in the cost of the commodities. 

In this connection it should be stated that Gen. St. 1919, c. 365, 
amending Gen. St. 1919, c. 341, by extending the authority of the 
commission to investigate charges for rent, was passed after a 
decision by a single justice of the Supreme Judicial Court (Sher- 
burne V. Sesen, Suffolk County, No. 16854, Law) that such au- 
thority was not given by Gen. St. 1919, c. 341, since rent is not a 



254 OPINIONS OF THE ATTORNEY-GENERAL. 

commodity which is the subject of "transportation, distribution 
and sale," within the meaning of the statute. 

The words "necessaries of Hfe," taken Hterally, must mean things 
necessary to sustain life. The word "necessaries" alone may have 
that restricted meaning. International Text Book Co. v. Connelly, 
206 N, Y. 188. It was used in that sense in the Federal statute. 
Cf. United States v. American Woolen Co., 265 Fed. Rep. 404; 
C. A. Weed & Co. v. Lochvood, 264 Fed. Rep. 453.. The words 
"necessaries of life " naturally connote articles of prime importance, 
such as food, fuel, housing and clothing. 

If laundry work is not a commodity it is needless to consider 
whether it is a necessary of life. It may be observed, however, that 
no labor or service is included within the category of State and 
Federal laws above enumerated; that in the so-called "Dubuque 
law" the Legislature evidently was of opinion that work and labor 
were not necessaries of life; and that it was necessary to include 
the claim for work and labor by amendment. It cannot be said 
as matter of law that the work of public laundries might not be 
performed at home, or how much, if not all, could be done at home. 
It is my opinion, therefore, that laundry work is not a necessary 
of life, within the meaning of those words as used by our Legisla- 
ture. 

It remains to consider the effect of the words "or any business 
which relates to or affects the same." They form a part of a pro- 
vision to the following effect : — 

The commission may inquire . . . into all facts and circumstances 
relating to the cost of production, wholesale and retail prices and the 
method pursued in the conduct ... of any business which relates to 
or affects the same [production, transportation, or sale of commodities 
which are necessaries of life]. 

In my opinion, laundry work does not relate to or affect the 
production, transportation or sale of such commodities, and there- 
fore the commission derives no authority from this clause. 

I must therefore advise you that the commission is not authorized 
to investigate circumstances affecting the prices of laundry work. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 255 



Public Health — Manufacture and Sale of Mattresses, 
Pillows and Similar Articles having a Filling of Second- 
hand Material — Ina- estigation by the Department 
OF Public Health. 

The general purpose of G. L., c. 94, §§ 270-277, is to prohibit (1) the sale or use 
of second-hand filling for mattresses, pillows and similar articles without a 
tag showing that it is second-hand; and (2) the use in such articles of any 
material which has been used in a hospital or about the person of anj' one 
having an infectious or contagious disease. 

In case of violation of any provision of G. L., c. 94, §§ 270-277, it is the duty of 
the Department of Public Health to proceed by complaint to enforce the 
penalties provided. 



You have asked my opinion with respect to the duties of vour To the Com- 

'' missioner 

department in relation to the mattress industrv, whether those °l Public 

'^ * Health. 

duties are Hmited to the provisions of G. L., c. 94, § 273, or whether ^u^^gj 26 
they extend to the enforcement of all the provisions of G. L., 
c. 94, §§ 270-277. 

G. L., c. 94, § 273, is as follows: — 

The department of public health, whenever there is reason to believe 
that an}'' provision of sections two hundred and seventy to two hundred 
and seventy-seven, inclusive, is being violated in any factorj^ shop, 
warehouse, store or other place, shall cause an investigation to be made 
of any such place, and for this purpose any member or duly authorized 
employee of the said department may enter such building or other place 
at all reasonable times. If, upon investigation, mattresses, pillows, 
cushions, muff beds, quilts or similar articles, or materials for use in the 
manufacture of the same, shall there be found, which have been pre- 
viously used in or about a hospital, or on or about the person of any 
one ha\'ing an infectious or contagious disease, such materials or articles, 
whether manufactured or in process of manufacture, shall be marked 
by the said department with labels bearing the word "unclean" in con- 
spicuous letters, and the said department, with or without notice to the 
owner or supposed owner, may order the removal and destruction of 
the said materials or articles or make such other order relating thereto 
as the circumstances of the case require. 

Section 270, in brief, prohibits the manufacture for purposes of 
sale, and the sale, of mattresses, pillows and similar articles with- 
out a tag stating the kind of material used for filling, and also, if 
the material has previously been used, the word "second-hand." 



256 OPINIONS OF THE ATTORNEY-GENERAL. 

Section 271 prohibits the use in such articles of material which 
has previously been used. in a hospital or about the person of any 
one having an infectious or contagious disease. 

Section 272 prohibits the sale of second-hand material commonly 
used for filling, with the representation that it is new material; 
and requires such material, when shipped, to be tagged with a state- 
ment of the contents and the name of the vendor. Violation of 
this provision is made punishable by a fine or imprisonment. 

Section 274 authorizes the department to post on any building 
containing or having contained materials or articles mentioned in 
section 273 a notice warning of danger of contagion or infection. 

Section 275 requires any police officer, member of a local board 
of health or other town official, having reason to believe that any 
provision of sections 270-277 has been or is being violated, to give 
notice thereof to the Department of Public Health. 

Section 277 provides for a penalty of fine or imprisonment for 
the manufacture for purposes of sale, or sale, of any mattress, pillow 
or similar article, which is not marked in accordance with sections 
270-277, and also for the use in the manufacture of such articles 
of materials previously used in a hospital or about the person of 
any one having an infectious or contagious disease. 

The general purpose of these sections is to prohibit two things: 
(1) the manufacture and sale of mattresses, pillows and similar 
articles having a filling of material which has been previously 
used, and the sale of second-hand material, without a tag showing 
that it is second-hand (§§ 270 and 272) ; and (2), more specifically, 
the use in such articles of any material which has been previously 
used in a hospital or about the person of any one having an infec- 
tious or contagious disease (§ 271). 

Section 273 makes it the duty of the department to make investi- 
gations in cases of violation of any provision of sections 270-277, 
and, if it finds a violation of section 271, to take particular action 
by labeling the materials or articles in question, and in such cases 
it may proceed further in its discretion. By section 274 the depart- 
ment is authorized to post notices on buildings in which such ma- 
terials or articles are or have been kept, and section 275 provides 
for notice to be given by police officers and other officials to the 



J. WESTON ALLEN, ATTORNEY-GENERAL. 257 

department of the violation of any provisions of sections 270-277. 
In a general way provision is made for notice to and investigation 
by the department in cases of all violations, and for particular 
action by the department against the goods and buildings con- 
taining them in cases of violation of section 271. 

Ample provision is made for penalties for any violation of sec- 
tions 270-277, but there is no express provision stating how they 
shall be enforced. An examination of G. L., c. 94, shows that with 
respect to some articles, as, for example, milk, butter, ice cream, 
apples, tainted meat, vinegar, adulterated food and drugs, narcotic 
drugs, feeding stuff, coal, fertilizers and turpentine, the statute 
expressly provides for enforcement of the law or making complaint 
for violation of it by the Department of Public Health or some 
board or officer. See §§ 30, 35, 60, 64, 111, 121, 122, 169, 189, 192, 
217, 235, 248, 260, 290, 293. In other cases, as with respect to 
bakeries, cold storage, fish,, eggs, sausages, canned goods, ice, 
grain, mattresses and slot machines, there is no such provision. 

In all cases arising under G. L., c. 94, where there is no express 
provision governing the manner of enforcement, it would seem to be 
proper that prosecution should be undertaken by the department, 
board or officer to whose supervision the matter has been confided 
by the General Court. I find little authority on the point. In 
Commonwealth v. Alden, 143 Mass. 113, the court held that a com- 
plaint for not abating a nuisance after notice from a board of 
health might be made by an agent of the board, the statute 
expressly providing for the making of a complaint in that way. 
In Commissioner of Health v. Bunzel, 221 Mass. 31, an information 
was filed by the Attorney-General, at the relation of the Commis- 
sioner of Health, to enjoin the carrying on of a slaughtering busi- 
ness without a license, contrary to the provisions of R. L., c. 75, 
§ 100, as amended by St. 1911, c. 297, § 2 (now G. L., c. 94, § 119). 
Subsequently the information was amended into a bill in equity 
brought by the Commissioner. There was a statutory provision 
for a penalty but none for its enforcement (R. L., c. 75, § 106, now 
G. L., c. 94, § 134). The court sustained the bill, without referring 
to any question whether the Commissioner was a proper party 
plaintiff. 



258 OPINIONS OF THE ATTORNEY-GENERAL. 

With respect to the subject of mattresses, there is the additional 
consideration that the General Court has imposed the duty on 
your department to investigate all violations of the law, and has 
provided that the department shall be notified by police and other 
officials of violations suspected by them. These general provisions 
would not be of much avail if the department were powerless after- 
wards to act, except in cases of violation of section 271. 

It is my opinion that your power is not so limited and that in 
cases of violation of any provision brought to your attention you 
may, and it is your duty to, proceed by complaint to enforce the 
penalties provided. 



Taxation — Income Tax — Exemption — Charity — Gift to 
Individual in Trust for Charitable Purposes. 

G. L., c. 62, § 8, par. (e), exempts from taxation income of intangible personal 
property if such property is owned by or held in trust within the Common- 
wealth for religious organizations, whether or not incorporated, if the prin- 
cipal or income is used or appropriated for religious, benevolent or charitable 
purposes, within the meaning of G. L., c. 59, § 5, cl. 10. 

The income of a bequest of intangible personal property to "His Eminence William 
O'Connell of Boston, Massachusetts, a Cardinal of the Holy Roman Catholic 
Church, ... to be iised by him . . . for such charitable purposes as he 
may deem best, in memory of my mother," is not exempt from taxation 
under G. L., c. 62, § 8, par. (e), since the bequest is to the Cardinal in his 
personal capacity and not to the Roman Catholic archbishop of Boston, 
who, by St. 1897, c. 506, § 1, is created a corporation sole, and the property 
is held in trust for a religious organization. 

m'issionCT^of' ^ou dircct my attention to the eleventh paragraph of the will of 

and^Taxa^on. A. Paul Kcitli, ill wliicli paragraph a gift is made to Cardinal 
August 26. William O'Connell, and you request my opinion whether the in- 
come from this gift is exempt from taxation under G. L., c. 59, § 5, 
cl. 10, and G. L., c. 62, § 8, par. (c), which provide, respectively: — 
G.L.,c. 59, §5,cl. 10.— 

The following property and polls shall be exempt from taxation : 

Tenth, Personal propertj'^ owned by or held in trust within the com- 
monwealth for rehgious organizations, whether or not incorporated, if 
the principal or income is used or appropriated for religious, benevolent 
or charitable purposes. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 259 

G. L., c. 62, § 8, par. (e) : — 

The following income shall be exempt from the taxes imposed by this 
chapter : 

(e) Income of intangible personal property exempt from taxation by 
section five of chapter fiftj^-nine, except under clauses seventeenth, eight- 
eenth, twenty-second, twenty-third, twenty-seventh, twenty-ninth and 
thirty-third of said section. 

The eleventh paragraph of the will provides : — 

Eleventh: AH the rest, residue and remainder of my propertj' and 
estate, real, personal and mixed, of every name, nature and description, 
and wheresoever situated, I give, devise and bequeath unto His Emi- 
nence William O'Connell of Boston, Massachusetts, a Cardinal of the 
Holy Roman Catholic Church, and to the President and Fellows of 
Harvard College, a Massachusetts corporation, to be divided between 
him and that corporation in equal shares, share and share alike, and I 
direct that what is received bj' him shall be used by him in his discre- 
tion for such charitable purposes as he may deem best, in memory of 
my mother, Mary Catherine Keith, and that what is received by the 
President and Fellows of Harvard College shall be devoted by that 
corporation to the general purposes of Harvard University. 

St. 1897, c. 506, § 1, made the then Roman Catholic archbishop 
of Boston and his successors in office a corporation sole under that 
name. Section 5 of the same act provides : — 

All gifts, grants, deeds and conveyances, and also all devises and be- 
quests heretofore made, of property within this commonwealth, to every 
person who held the office of Roman Catholic bishop of Boston, in which 
the addition of bishop of Boston, or Catholic bishop of Boston, or 
Roman Catholic bishop of Boston, or archbishop of Boston, or Catholic 
archbishop of Boston, or Roman Catholic archbishop of Boston, may 
have been used and made in the instrument giving or disposing of prop- 
erty to the grantee, de\-isee or legatee, shall be construed, unless the 
contrary clearly appears on the instrument, when the terms of it and 
the limitations thereof shall prevail, as conve3dng, giving, granting, 
devising or bequeathing the property in such instrument mentioned to 
such person as was Roman Catholic bishop of Boston, or Roman Cath- 
olic archbishop of Boston, and that the titles passing respectively by 
such instruments and now held by the present Roman Catholic arch- 



260 OPINIONS OF THE ATTORNEY-GENERAL. 

bishop of Boston, shall be and the same are hereby vested in the cor- 
poration established by this act, subject to any trust expressed in any 
said instrument, and to any limitations governing said trust. 

I assume that the corporation sole created by St. 1897, c. 506, is 
a "religious organization," within the meaning of G. L., c. 59, § 5, 
cl. 10, and G. L., c. 62, § 8, par. (e). The first question, therefore, 
is whether this devise and bequest is to the corporation sole created 
by and described in said St. 1897, c. 506, or to Cardinal O'Connell 
in his personal capacity. The distinction is vital, not only with 
respect to taxation but also with respect to the administration 
of the trust. If the gift be to the Cardinal as an individual trustee, 
he would remain trustee even though he might be transferred to 
another archbishopric. If the gift be to the corporation, the cor- 
poration remains the trustee no matter what person may from 
time to time hold the office of Catholic archbishop of Boston. 

In my opinion, the bequest in this instance is to the Cardinal 
and not to the corporation. The language of the will, " His Emi- 
nence, William O'Connell of Boston, Massachusetts, a Cardinal 
of the Holy Roman Catholic Church," is an apt description of the 
Cardinal in his personal capacity as a prince of the church. The 
words "a Cardinal of the Holy Roman Catholic Church" are 
unambiguous, and identify him in reference to an office which he 
personally holds, and which in no sense pertains as matter of law 
to the Catholic archbishopric of Boston. 

It does not appear that Mr. Keith knew that the corporation 
existed. If he did not, he could scarcely have intended to leave 
property to it. If he did know of it, he has chosen words which 
do not describe the corporation, and do describe the Cardinal. On 
either theory, the corporation cannot be substituted as legatee 
for the Cardinal in person because for the time being he happens 
to be the human embodiment of it. 

This view is confirmed by the declared purpose of the gift. The 
will provides that "what is received by him shall be used by him 
in his discretion for such charitable purposes as he may deem best, 
in memory of my mother." In my opinion, these words confer a 
discretion which in the first instance is personal to the Cardinal, 



J. WESTON ALLEN, ATTORNEY-GENERAL. 261 

rather than a discretion to be exercised by a corporation. The 
distinction is illustrated by the gift to Harvard College, made 
in the same clause, where the discretion conferred is plainly cor- 
porate rather than personal. 

The next question is whether the Cardinal holds for the benefit 
of the said corporation or other religious organization. It seems 
plain that under the terms of the will he does not, whatever the 
intent may have been. He is to administer the gift for "such 
charitable purposes as he may deem best," in memory of the 
testator's mother. A charitable purpose is not necessarily a reli- 
gious purpose, although it embraces and includes religious purposes. 
Jackson V. Phillips, 14 Allen, 539, 556. Moreover, indefinite- 
ness as to beneficiaries is the very essence of a charitable trust. 
Noble: Law of Charity Trusts, §§ 21-24. For both reasons the 
Cardinal does not, under the terms of the will, hold the property 
"for religious organizations," within the meaning of the act. It 
is not material that in the exercise of the broad discretion con- 
ferred upon him he may elect to apply the property for the benefit 
of religious organizations. He still holds the property under the 
terms of the will, which does not impose any such obligation upon 
him. 

In my opinion, the income of said trust is not exempt under the 
provisions of law to which you direct my attention. 



Sale of Securities Act — Registration — Sale by Corpora- 
tion OF ITS Own Securities — Profit. 

St. 1921, c. 499, applies to the ordinary case of a corporation issuing and selling 
its own securities, unless they are in the classes exempted by the act, and the 
corporation should be registered as a broker, as required by the act. 

You have requested my opinion upon the question whether a xotheDepart- 
corporation engaged in business in Massachusetts, which sells its PubUc utilities. 
own securities to the public without commission or profit, should A ugust 2 9. 
register as a broker, under the provisions of St. 1921, c. 499. Said 
statute, by section 2, clause (e), defines the word "broker" as 
follows : — 



262 OPINIONS OF THE ATTORNEY-GENERAL. 

"Broker" shall include every person, other than a salesman, who 
in this commonwealth engages either for all or part of his time, directly 
or through an agent, in the business of selling any security issued by 
himself or another person, or of purchasing or otherwise acquiring such 
securities for another with the purpose of reselling them, or of offering 
them for sale to the public, for a commission or at a profit. 

Section 8 provides that "no person shall sell securities within 
this commonwealth as broker or salesman unless he has been 
registered by the commission." 

I must assume that the clause "for a commission or at a profit," 
in section 2, clause (e), above quoted, qualifies the clause "in the 
business of selling any security issued by himself or another person " 
as w^ll as the two following clauses. Unless, therefore, a corpora- 
tion engaged in the business of selling its own securities sells them 
"at a profit," within the meaning of section 2, clause (e), it is not 
required to be registered. 

The word "profit" commonly means gain or excess of receipts 
over expenditures. Rubber Co. v. Goodyear, 9 Wall. 788, 804; Fech- 
teler v. Palm Bros. &• Co., 133 Fed. Rep. 462, 469; Q^iirin v. Hay- 
den, 219 Mass. 343, 346. But it is also frequenth^ used more 
broadly to denote any advantage or benefit acquired, and especially 
of a pecuniary sort. Simcoke v. Sayre, 148 la. 132, 134; Cou- 
Joiiibe V. Eastman, 76 N. H. 248; cf. Attorney-General v. Boston & 
Albany R.R., 233 Mass. 460, 464. 

The word "profit," as applied to the selling by a corporation of 
securities issued by itself, can hardly be interpreted as meaning 
excess of selling price over cost, since the securities, in the ordinary 
case, have cost the corporation nothing beyond the expenses of 
promotion, and their value to the holders lies in the capital paid 
in as q7idd yro quo and the expected benefit from good management 
and other like factors. As applied to such transactions "profit" 
would seem naturally to mean pecuniary advantage. Adopting 
this construction, a corporation engaged in the business of selling 
securities issued by it ordinarily' sells them at a profit, and thus 
falls within section 2, clause (e). 

The purpose of the act as disclosed by its title and its provisions, 
in my opinion, strongly supports this construction. Any other 



J. WESTON ALLEN, ATTORNEY-GENERAL. 263 

would emasculate the act by excluding from its scope a large mass 
of transactions which it was evidently meant to cover. 

In Sta7iiels v. Raymond, 4 Cush. 314, 316, the court said: — 

Statutes are to be construed according to the intention of the makers, 
if this can be ascertained with reasonable certainty, although such con- 
struction may seem contrary to the ordinary meaning of the letter of 
the statute. 

The act is entitled "An Act to control the sale of securities, to 
register persons selling the same, and to prevent the fraudulent 
promotion and sale of fraudulent securities." It provides for the 
insertion in the General Laws of a new chapter, llOA, entitled 
"Promotion and sale of securities." It contains provisions for the 
exemption from the operation of the act of sales by corporations of 
stock for delinquent assessments [§ 3 (j)], and of distributions by 
corporations of capital stock, bonds or other securities to its stock- 
holders or other security holders by way of stock dividends or 
other distributions out of surplus or increase in capital or corporate 
reorganization [§ 3 (h)]. It provides with reference to seciu-ities 
not exempted and not previously sold in this Commonwealth, 
which a corporation proposes to issue, that a notice of intention 
to offer such securities for sale must be filed with the commission 
(§ 5). Manifestly, the act was intended to apply to the ordinary 
case of a corporation issuing and selling its stock, except in cases 
of sales of securities included in the exempted classes. 



Corporations — Issue of Stock — Consideration. 

Under G. L., c. 156, §§ 15 and 16, capital stock of a domestic business corporation 
may not be issued for executory contracts to convey or supply property or 
to render services to the corporation. 

You ask m^• opinion whether ^'ou should approve an issue of TotheCom- 

* •' ^ missioner of 

capital stock in a domestic business corporation where the con- ^nd^xSation 
sideration for such issue is a contract to handle and sell articles August 29. 
manufactured by the corporation, and a contract to sell the stock 
of the corporation. 

G. L., c. 156, §§ 15 and 16, are, in part, as follows: — 



264 OPINIONS OF THE ATTORNEY-GENERAL. 

Section 15. Capital stock may be issued for cash, at not less than 
par, if the shares have par value, for property, tangible or intangible, 
or for services or expenses. . . . 

Section 16. . . . No stock shall be at any time issued unless the 
cash, so far as due, or the property, services or expenses for which it 
was authorized to be issued, has been actually received or incurred by, 
or conveyed or rendered to, the corporation, or is in its possession as 
surplus; . . . 

A mere executory contract is in a broad sense intangible prop- 
erty. But section 16, as above quoted, provides that stock shall 
not be issued "unless the cash, so far as due, or the property, 
services or expenses for which it was authorized to be issued, has 
been actually received or incurred by, or conveyed or rendered to, 
the corporation, or is in its possession as surplus." In my opinion, 
this provision w^as clearly intended to exclude from the operation 
of section 15 all executory contracts to convey or suppl}' property 
or to render services to a corporation, for nonperformance of which 
the corporation has merely an action for damages. The authorities 
in cases where there are similar statutory provisions are almost 
unanimously to this effect. Stevens v. Episcopal Church History 
Co., 140 App. Div. [N. Y.] 570; Shaw v. Aiisaldi Co., Inc., 178 
App. [N. Y.] Div. 589; 14 C. J. 438; cf. Cooney Co. v. Arlington 
Hotel Co., 11 Del. Ch. 286, 306. 

It is unnecessary, therefore, to consider whether services in 
"selling the stock of the corporation are a legal consideration for 
the issue of stock. 



Betterments — Assessment — Collection — Salisbury 
Beach Road. 

Assessments made under St. 1914, c. 659, § 1, authorizing the Massachusetts 
Highway Commission to lay out a highway and to assess a proportionate 
share of the cost upon the real estate especially benefited, are not collectable, 
since no method for collection is provided by statute. 

Tre^urer ^^®^ hsive Tcceutly Called my attention to the matter of the 

cfene^af."'^^'^' collectiou of Certain assessments against owners of property bene- 

September 2. fitcd by thc coustructlon of the Salisbury Beach Road, so called, in 

the town of Salisbury, under the provisions of St. 1914, c. 659, § 3. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 265 

This matter was referred to this department by the Treasurer and 
Receiver-General on Aug. 14, 1917. Since that date a number of 
the assessments have been collected, but there are still outstanding 
unpaid assessments amounting to approximately $1,700. 

St. 1914, c. 659, by section 1, authorizes and directs the Massa- 
chusetts Highway Commission to lay out a highway between the 
marshes and the beach at Salisbury Beach. 

Section 2 requires the commission to estimate and determine the 
damages to property. 

Section 3 authorizes the commission to determine the assessable 
cost of the improvement, and to assess a proportionate share 
thereof upon the parcels of real estate determined to be especially 
benefited. There is no further provision for the assessment or 
collection of such betterments or the imposition of any lien upon 
the real estate benefited. The section is as follows: — 

The said commission is authorized to estimate and determine the 
value of the benefit or advantage to each parcel of real estate, whether 
situated on said highway or otherwise, and lying within one hundred 
feet thereof, from the whole or a part of the improvement by the laying 
out of said highwaj^, and shall determine as the assessable cost of the 
improvement such part, not exceeding one half, as the commission shall 
deem just, of the expenses already incurred or hereafter to be incurred 
by the commonwealth for the whole or part of the improvement, in- 
cluding the expense of taking land and all other expenses in laying out 
and constructing said highway, and fehall assess a proportionate share 
of said assessable cost upon the parcels of real estate determined to be 
especially benefited as aforesaid, but not exceeding the total amount of 
the benefit and advantage to every such parcel as estimated or deter- 
mined as aforesaid. The said highway when laid out and constructed 
shall be a public way in the town of Salisbury. 

Sections 4 and 5 provide for payment of the cost by the Com- 
monwealth in the first instance, and an apportionment of the cost 
between the Commonwealth, the county of Essex and the town 
of Salisbury. 

At the time this act was passed certain provisions of the Re- 
vised Laws were in force, appearing in chapter 50, entitled ''Of 
betterments and other assessments on account of the cost of public 
improvements." 



266 OPINIONS OF THE ATTORNEY-GENERAL. 

Section 1 of said chapter provides as follows : — 

In a town which accepts the provisions of this and the eight following 
sections or has accepted the corresponding provisions of earlier laws, 
or in any city, the board of city or town officers which is authorized to lay 
out ways therein may, at any time within two years after the passage of 
an order laying out, relocating, altering, widening, grading or discon- 
tinuing a way and after the work has been completed or the way has 
been discontinued, if such order declares that such action has been taken 
under the provisions of law authorizing the assessments of betterments, 
and if in its opinion any land receives a benefit or advantage therefrom 
beyond the general advantage to all land in the city or town, determine 
the value of such benefit or advantage to such land and assess upon the 
same a proportional share of the cost of such laying out, relocation, 
alteration, widening, grading or discontinuance; but no such assess- 
ment shall exceed one-half of the amount of such adjudged benefit or 
advantage. 

Section 10 of said chapter 50 is as follows : — 

Assessments for betterments and other public improvements shall 
constitute a lien upon the land assessed and shall be enforced in the 
manner provided for the collection of taxes. They shall bear interest 
from the thirtieth day after the assessment until paid. If the validity 
or amount of such assessment is drawn in question in an action or other 
proceeding the lien shall continue for one year after final judgment and 
may be enforced in the same manner as the original assessment. 

Section 15 requires "such board," upon notice by the owner 
of land upon which an assessment for betterments has been laid, 
to apportion the assessment into a number of equal parts, not 
exceeding ten, and to certify said apportionment to the assessors, 
who, in turn, are required to add one of such parts to the annual 
tax upon such land each year until the tax has been paid. 

Section 20 authorizes the county commissioners to proceed in 
certain cases under this chapter, and section 21 requires the board 
assessing the betterments in such cases to reimburse the county a 
proportion of the betterments received. 

R. L., c. 13, § 35, provides, in part, as follows: — 

Taxes assessed upon land, ... shall ... be a lien thereon from the 
first day of May in the year of assessment. Such lien shall terminate 



J. WESTON ALLEN, ATTORNEY-GENERAL. 267 

at the expiration of two years from the first day of October in said year, 
if the estate has in the meantime been aHenated; otherwise it shall 
continue until an alienation thereof. 

Said chapter 13 contains provisions for the collection of taxes 
by distress, imprisonment, suit, and sale or taking of land. By 
section 2 every collector of taxes is required to collect the taxes 
set forth in the tax list and warrant from the assessors, and to 
pay over the same to the city or town treasurer according to the 
warrant. 

R. L., c. 50, § 10, first appeared in St. 1866, c. 174, § 6. The 
act was entitled " An Act concerning the laying out, altering, widen- 
ing and improving the streets of Boston." Section 6 provided, in 
part : — 

All assessments made under this act shall constitute a lien upon the 
real estate so assessed, to be enforced in the same manner, with like 
charges for costs and interest, as is provided by law for the collection of 
taxes. 

The remainder of the section provided for an apportionment of 
the assessment at the request of the owner of any estate so assessed. 

By St. 1868, c. 75, the provisions of this act were extended and 
made applicable to any and all cities of the Commonwealth. 

St. 1871, c. 382, entitled "An Act in relation to betterments," 
provided by section 1 that the board of city or town officers au- 
thorized to lay out streets or ways, respectively, therein might 
determine the value of the benefit and advantage to real estate 
therefrom, and assess upon the same a proportional share of the 
expense. Section 6 of said act provided, in part: — 

All assessments made under this act shall constitute a lien upon the 
real estate so assessed, to be enforced in the same manner, with like 
charges for cost and interest, as provided by law for the collection of 
taxes; ... 

with a provision for apportionment of the assessment at the 
request of the owner of the estate. 

P. S., c. 51, entitled "Of betterments and other assessments on 
account of the cost of public improvements," contains what are 



268 OPINIONS OF THE ATTORNEY-GENERAL. 

substantially the provisions of St. 1871, c. 382. Section 6 of that 
act appears as section 5 in said chapter 51. It provides: — 

Every such assessment shall constitute a lien upon the real estate 
assessed, to be enforced, with like charges for cost and interest, in the 
manner provided by law for the collection of taxes ; . . . 

No material change in this statute was made before the adoption 
of the Revised Laws, and no note appears in the report of the com- 
missioners for consolidating the Public Statutes stating any reason 
for the change in phraseology by which the specific reference is 
omitted to such assessments only as are made under the chapter. 

Gen. St. 1915, c. 227, in section 1, contained restrictions on the 
attachment of "municipal liens" to real estate in consequence of 
an order of a municipal board or other authority for the construc- 
tion of a street, sewer or sidewalk. 

Sections 2 and 3 were as follows : — 

Section 2. All acts and parts of acts inconsistent herewith are 
hereby repealed. 
Section 3. This act shall not apply to the citj^ of Boston. 

A former Attorney-General ruled, with reference to the effect 
of this act (IV Op. Atty.-Gen. 547, 559), that — 

The previous statutes in so far as they related to the creation of 
municipal liens for the construction of streets, sewers and sidewalks 
were repealed by the act of 1915, except as to the city of Boston. 

By Gen. St. 1917, c. 344, pt. Ill, the law with reference to better- 
ments was rewritten. By Gen. St. 1918, c. 257, § 219, the law was 
again rewritten by striking out part III and substituting a new 
part III. Section 4 of said new part III provides that "the board" 
shall, within a reasonable time after making the assessment, com- 
mit the list of assessments within each city or town, with their 
warrant, to the collector of taxes of the city or town in which the 
land assessed is situated, for collection. Section 11 provides that 
"assessments made under this part of this act shall constitute a 
lien upon the land assessed." These provisions are continued 
substantially in G. L., c. 80. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 269 

It is a familiar principle of statutory construction that mere 
verbal changes in the revision of a statute do not alter its meaning, 
and are construed as a continuation of the previous law. Main v. 
County of Plymouth, 223 Mass. 66, 69; Ollila v. Huikari, 237 Mass. 
54. It is my opinion that by the adoption of the Revised Laws 
it was not intended to widen the scope of the previous law, by 
which the provisions with respect to the creation of liens and the 
collection of assessments were confined to assessments made under 
the act; that is, assessments made by boards of city or town 
officers. This view is confirmed by the course of subsequent legis- 
lation on the subject. 

Moreover, the method provided by section 10 for the collection 
of the assessments referred to in the section is not applicable to 
assessments made by State boards, the proceeds of which should 
go into the treasury of the Commonwealth. The collector of taxes, 
to whom assessments are committed by section 10, is required . 
by R. L., c. 13, § 2, to pay over his collections to the city or town 
treasurer, and there, so far as there is any statutory provision, the 
proceeding stops. 

There is no provision in St. 1914, c. 659, for the collection of 
assessments made by the Massachusetts Highway Commission 
nor for the imposition of any lien on the land determined to have 
been benefited by the improvement. Nor is there any other pro- 
vision of statute, of which I am aware, which would operate to 
create a lien on such land or give a right to collect the assessments. 

The right to levy and collect betterment assessments exists 
only by statute. Stone v. Street Commissioners, 192 Mass. 297. 
Since no method appears to be provided by statute for the collec- 
tion of the assessments now remaining unpaid, I am constrained 
to hold that those assessments are not collectable. 



270 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Com- 
missioner 
of Banks. 

1921 
September 2. 



Set-off — Debt due from Insolvent Trust Company against 
Stockholder's Ll\bility — Stockholder's Ll\bility 
AGAINST Debt due from Insolvent Trust Company'. 

A stockholder cannot set off a debt due from the commercial department of an 
insolvent trust company against the statutory liability imposed upon him by 
R. L., c. 116, § 30, as amended by St. 1905, c. 228, since the debt is owed by 
the corporation, and such liability is enforced for the benefit of its creditors. 

A receiver of an insolvent bank, or the commissioner in possession thereof, may 
set off the statutory liability imposed upon a stockholder by R. L., c. 116, 
§ .30, as amended by St. 1905, c. 228, when such liability is duly fixed, against 
a debt due from the commercial department to said stockholder, since such 
set-off does not prejudice either stockholder or creditors. 

You inquire whether an indebtedness owed by the commercial 
department of a trust company to a stockholder therein may be 
set off by the stockholder against the liability imposed upon stock- 
holders in trust companies by R. L., c. 116, § 30, as amended 
by St. 1905, c. 228 (now G. L., c. 172, § 24); and, conversely, 
whether this liability, if duly fixed, may be set oft* by the receiver 
or the Commissioner of Banks against a suit bj^ the stockliolder to 
recover a debt from the corporation. You state that these ques- 
tions arise in connection with an insolvent trust company, of which 
you have taken possession under St. 1910, c. 399 (now G. L., c. 167, 
§§ 22 to 36, inclusive), and which is now in process of liquidation 
by you. 

R. L., c. 116, § 30, as amended by St. 1905, c. 228, provides as 
follows : — 

The stockholders of such corporation shall be personal!}' liable, 
equally and ratably and not one for another, for all contracts, debts and 
engagements of the corporation, to the amount of their stock therein 
at the par value thereof, in addition to the amount invested in such shares. 
The provisions of sections sixty to sixty-eight, inclusive, of chapter one 
hundred and ten shall apply to and regulate the enforcement of such 
liabilitj', and receivers of insolvent trust companies may, with the 
approval of the supreme judicial court, enforce such liability. 



Authority to enforce this liability is expressly conferred upon the 
Commissioner of Banks in possession of an insolvent trust com- 
pany by St. 1910, c. 399, § 4 (now G. L., c. 167, § 24). Exami- 



J. WESTON ALLEN, ATTORNEY-GENERAL. 271 

nation of the provisions for enforcing this habihty makes it plain 
that this habihty is to be enforced by a receiver or by the Commis- 
sioner of Banks or by one creditor on behalf of himself and all 
other creditors, as the case may be, and not by the creditors in- 
dividually. 

In Everett v. Foster, 223 Mass. 553, the Supreme Judicial Court, 
in deciding that a delinquent stockliolder could not set off a debt 
due from an insolvent corporation against an unpaid subscription 
for stock which the assignee for the benefit of creditors was seeking 
to enforce against him, said, at page 555 : — 

The rule established by the great weight of authority in many juris- 
dictions is that, in the absence of a statute to that effect, a creditor of 
an insolvent corporation cannot set off his debt in an action brought 
against him to recover for the benefit of all the creditors the amount due 
upon an unpaid subscription for stock. The creditor must pay for his 
shares in full, and is entitled only to a ratable distribution of all the 
company's assets and to receive a dividend upon his claim against the 
corporation in common with other creditors. Anglo-American Mort- 
gage & Agencrj Co. v. Dyer, 181 Mass. 593; Pettibone v. Toledo, Cin- 
cinnati & St. Louis Railroad, 148 Mass. 411; Sawyer v. Hoag, 17 Wall. 
610, 622; Upton v. Tribilcock, 91 U. S. 45; Sanger v. Upton, 91 U. S. 
56; Scammon v. Kimball, 92 U. S. 362; Scovill v. Thayer, 105 U. S. 143, 
152; Handley v. Stutz, 139 U. S. 417, 427; See v. Heppenheimer, 3 Rob. 
36, 79; Holcombe v. Trenton White City Co., 10 Buch. 122; Ball Electric 
Light Co. v. Child, 68 Conn. 522; Appleton v. Turnbull, 84 Me. 72; 
Richardson v. Merritt, 74 Minn. 354; Utica Fire Alarm Telegraph Co. 
V. Waggoner Watchman Clock Co., 166 Mich. 618, 621; Shickle v. Watts, 
94 Mo. 410; Morawetz on Private Corp. § 861; Cook on Corp. (7th 
ed.) § 193; Grissell's Case, L. R. 1, Ch. 528. The terms of the assign- 
ment by the debtor corporation to the plaintiff do not incorporate the 
provisions of our insolvent law except as to the kind of debts due from 
the assignor which can share in the distribution. R. L., c. 163, § 34, 
has no bearing on the question at issue. 

This rule is in accord with the great weight of authority. 
14 C. J. 1044, § 1628, note 17. 

On the other hand, the receiver of an insolvent corporation, 
when sued by the executor of a deceased stockholder to enforce 
a debt due to the decedent, may set off against the executor the 
amount due upon shares of stock held by the decedent, even though 



272 OPINIONS OF THE ATTORNEY-GENERAL. 

action is barred as against the executor by the special statute of 
limitations. Coyle v. Taunton Safe Deposit d' Trust Co., 216 Mass. 
156, 158, 163. This case is the converse of Everett v. Foster, 
supra. The set-off by the receiver does not diminish the assets 
applicable to the payment of creditors. On the contrary, it reduces 
the claims against the corporation without depleting the assets. 
If a debt due to an insolvent corporation cannot be set off by 
the stockholder in an action to enforce payment of an unpaid stock 
subscription on behalf of the corporation, it is very clear that such 
debt cannot be set off against the additional liability imposed by 
statute upon stockliolders in banks. The additional statutory 
liability is not an asset of the corporation, as the stock subscrip- 
tion was. It is available only if the corporation is insolvent, and 
may be used only to pay corporate debts. See G. L., c. 158, §§ 46 
to 54, inclusive. It is a trust fund for the benefit of creditors, 
which may be collected for their benefit either by a receiver or 
by the Commissioner of Banks or by one creditor on behalf of 
himself and all other creditors, but not by the corporation itself. 
By the great weight of authority a stockholder who is also a creditor 
of an insolvent corporation cannot set oft' a debt which the cor- 
poration owes him against his statutory liability for the corporate 
debts. Wingate v. Orchard, 75 Fed. Rep. 241 (C. C. A.); Robin- 
son v. Brown, 126 Fed. Rep. 429; Williams v. Rose, 218 Fed. Rep. 
898; 14 C. J. 1046, § 1629, note 28; 7 C. J. 517, § 108. See also 
Bachrach v, Allen, 239 Mass. 272. The cases of Broadway National 
Bank v. Baker, 176 Mass. 294, and Sargent v. Stetson, 181 Mass. 
371, do not apply to the form of statutory liability created by our 
statute; they both related to statutory liability created by the 
law of Kansas, which permitted individual creditors to enforce 
such liability severally, and, in consequence, permitted a stock- 
holder to set off against the claim of an individual creditor any 
debt due from the corporation which he had paid in good faith. 
I therefore advise you that the stockholder may not set off a debt 
due from the corporation against this statutory liability, but that 
such liability, if duly fixed, is available as a set-off to the receiver 
or the Commissioner of Banks in an action by the stockholder to 
recover a debt due from the corporation. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 273 

I do not deem it expedient to answer certain other questions 
touching controversies with a particular individual, as to which 
you impliedly but did not directly inquire. Some if not all of these 
questions are or may be the subject of litigation, and should not 
be prejudiced by an advisory opinion of the Attorney-General 
delivered in advance. See Opinion of the Justices, 237 Mass. 613; 
Opinion of the Justices, 122 Mass. 600, 602. Therefore I do not 
decide, either expressly or by implication, whether a valid assess- 
ment could be made upon this individual as a stockholder. 



Treasurer and 



State Finance — Sinking Funds — Temporary Use of Other 
Funds to buy Bonds for Sinking Funds. 

Since, under Mass. Const., pt. 2d, c. II, § I, art. XI, funds cannot be issued out 
of the treasury save by a proper warrant "agreeably to the acts and resolves 
of the general court," the Treasurer and Receiver-General cannot, in the 
absence of statute, buy bonds for sinking funds with other moneys in the 
treasury, even though the temporary shortage in such other funds would 
probably be made good in the near future out of expected income. 

You ask my opinion upon the following case : — To the 

A favorable opportunity to buy bonds for the sinking fund has Q®^f\!^7" 
presented itself, but the funds available to purchase bonds for septemb'er lo 
the sinking fund have alread}^ been invested. There are, however, 
other funds which, if temporarily employed to buy bonds for the 
sinking fund, would show a temporary shortage in cash and a 
corresponding surplus in bonds. You state that income would 
absorb this shortage in cash by the beginning of 1922. You 
inquire whether you may, with the approval of the Governor and 
Council, make the purchase under these circumstances. 

Bonds cannot be purchased without issuing moneys out of the 
treasury and disposing of the same to pay therefor. Moneys 
cannot be issued out of the treasury and disposed of save by war- 
rant under the hand of the Governor, with the advice and consent 
of the Council, "agreeably to the acts and resolves of the general 
court." Mass. Const., pt. 2d, c. II, § I, art. XI. Opinion of the 
Justices, 13 Allen, 593. I do not find any act or Resolve of the 
General Court which authorizes the temporary employment of 



274 OPINIONS OF THE ATTORNEY-GENERAL. 

funds on hand in the treasury for a purpose different from that 
to which such funds are ultimately devoted by law, even though it 
is expected that the shortage will be adjusted in the near future 
by receipt of income or otherwise. A laudable desire to purchase 
bonds for the Commonwealth at an attractive price cannot, in 
my opinion, justify a departure from the plain mandate of the Con- 
stitution. I am constrained to advise you that unless there is some 
act or resolve which authorizes the use of the funds in question to 
purchase bonds, they cannot be withdrawn from the treasury, 
either temporarily or permanently, for that purpose. 



Warehouseman — Surrender of License — Cancellation of 

Bond. 

The surrender of a license by a warehouseman to the Secretary of the Common- 
wealth is not complete until after notice of discontinuance of such license by 
publication, in accordance with G. L., c. 105, § 6. 

Power to cancel the bond of a warehouseman upon surrender of license would 
seem to be incidental to the power to accept surrender of the license, when 
and if it is determined by the Governor, with the advice and consent of the 
C-ouncil, that there is no liability outstanding or enforceable thereunder. 

Governor. You ask my opinion upon the following case : — 

September 19. A warchouscman duly licensed under G. L., c. 105, § 1, desires 
to surrender his license, pursuant to G. L., c. 105, § 6. You in- 
quire, first, whether the surrender should be accepted unqualifiedly 
before notice has been published as required by said section 6; 
and second, when the bond required by section 1 shall be deemed 
to have been terminated. 

G. L., c. 105, §§ 1,3 and 6, provide as follows: — 

Section 1. The governor, with the advice and consent of the coun- 
cil, may license suitable persons, or corporations established under the 
laws of, and having their places of business within, the commonwealth, 
to be public warehousemen. Such warehousemen may keep and maintain 
pubhc warehouses for the storage of goods, wares and merchandise. 
They shall give bond to the state treasurer for the faithful performance 
of their duties in an amount and with sureties approved by the governor, 
and may appoirit one or more deputies, for whose acts they shall be 
responsible. A railroad corporation licensed as a pubUc warehouseman 



J. WESTON ALLEN, ATTORNEY-GENERAL. 275 

shall not be required as such to receive any property except such as has 
been or is forthwith to be transported over its road or to give sureties 
on its bond. 

Section 3. Whoever is injured by the failure of a licensed ware- 
houseman to perform his duty or by his violation of any provision of 
this chapter may bring an action for his own benefit, in the name of the 
commonwealth, on the bond of such warehouseman. The writ shall be 
endorsed by the person in whose behalf such action is brought, or by 
some other person satisfactory to the court; and the endorser shall 
be liable to the defendant for any costs which he may recover in such 
action, but the commonwealth shall not be liable for anj'' costs. 

Section 6. The state secretary shall, at the expense of each ware- 
houseman, give notice of his license and qualification, of the amount of 
the bond given by him and also of the discontinuance of his license by 
pubhshing the same for not less than ten days in one or more news- 
papers, if any, published in the county or town where the warehouse is 
located; otherwise, in one or more newspapers published in Boston. 

These sections are re-enactments, without substantial change, 
of R. L., c. 69, §§1,2 and 8, respectively. 

On June 11, 1906, the Attorney-General, in advising His 
Excellency the Governor as to the mode in which a warehouse- 
man should surrender his license under the above sections of the 
Revised Laws, said : — 

I think the proper thing is for the company to return its license to 
the Secretary of the Commonwealth; the Secretary should then adver- 
tise the discontinuance, as provided by section 8. When this has been 
done it seems to me the surrender of the appointment will be complete, 
for all practical purposes, at least. 

While the language of the act might be so construed as to make 
the publication of the required notice a record of a discontinuance 
already made, I concur in the opinion above referred to, that such 
publication is an essential step in making such discontinuance. 
I therefore advise you that the surrender should be deemed to be 
effective only upon completion of the required publication. 

The statute contains no express provision for cancellation of 
the bond upon discontinuance of the license. Although it is 



276 OPINIONS OF THE ATTORNEY-GENERAL. 

unlikely that any new liability will arise after the license has been 
discontinued, it does not follow that liability may not have accrued 
prior to discontinuance. The existence of such liability is not 
negatived, as matter of law, by failure to bring suit upon the bond 
before the surrender of the license becomes effective. To cancel 
the bond as soon as such surrender is completed might deprive 
the public of a portion of the security which the bond was intended 
to furnish. On the other hand, the failure of the Legislature 
expressly to prescribe a time for cancellation does not, in my 
opinion, require, as matter of law, that the bond remain in force 
until action thereon is barred by the statute of limitations. Power 
to cancel the bond would seem to be incidental to the power to 
accept surrender of the license. A measure of discretion is thus 
vested in Your Excellency, acting with the advice and consent 
of the Council. In my opinion, the bond may properly be cancelled 
when and if the Governor, with the advice and consent of the 
Council, shall determine that there is no liability outstanding and 
enforceable thereunder. 



Taxation — Deposits in Savings Departments of Trust 
Companies — Returns — Inspection of Books. 

There is no provision in G. L., c. 63, for the assessment of an additional tax on 
deposits in savings banks and savings departments of trust companies upon 
discovery that the tax first assessed was incorrect. 

G. L., c. 63, § 69, does not authorize the Commissioner of Corporations and Tax- 
ation to inspect the books of a savings bank or trust company for the purpose 
of verifying returns on which taxes have been assessed and paid. 

m*isskfn^r°™' ^^^^ rcqucst my opinion as to your authority and duty in the 
aLd Taxatfon"^ matter of auditing the books of savings departments of trust com- 
September 20. pauics for the purposc of taxation, where it appears that the Com- 
monwealth has not received a correct return for the purpose of 
taxation, and where it further appears that the Commonwealth 
has failed to receive a considerable tax. In your letter requesting 
my opinion you refer to some communications between yourself 
and the Commissioner of Banks and his liquidating agent, relating 
to returns of a certain trust company for the six months' period 
ending April 30, 1920, and Oct. 31, 1920, respectively, and a 



J. WESTON ALLEN, ATTORNEY-GENERAL. 277 

suggested examination of its books "in order to render a proper 
tax bill for the two 1920 taxes." 

G. L., c. 63, contains provisions applicable to the taxation of 
savings banks and savings departments of trust companies. 
Section 11 provides for the taxation of deposits in savings banks 
and trust companies having savings departments. It is as 
follows : — 

Every savings bank and every trust company having a savings depart- 
ment, as defined respectively in chapters one hundred and sixty-eight 
and one hundred and seventy-two, shall pay to the state treasurer, on 
account of its depositors, an annual tax of one half of one per cent, 
which shall be levied on the amount of the deposits in a savings bank, 
and on the amount of such of the deposits in the savings department 
of a trust company as do not exceed in amount the limits imposed upon 
deposits in savings banks by section thirty-one of chapter one hundred 
and sixty-eight, to be assessed and paid as follows: one fourth of one 
per cent shall be assessed by the commissioner upon the average amount 
of such deposits for the six months preceding May first, and paid on 
or before May twenty-fifth; and a like percentage shall be assessed 
upon the average amount of such deposits for the six months preceding 
November first, and paid on or before November twenty-fifth. 

Section 13 contains provisions requiring semi-annual returns, 
and provisions for penalties for failure to make such returns and 
for false statements in such returns. It is as follows: — 

Every savings bank and every trust company having a savings de- 
partment shall semi-annually, on or before May tenth and November 
tenth, make a return to the commissioner, signed and sworn to by its 
president and treasurer, of the amount of its deposits if a savings bank, 
and if a trust company of the amount of deposits in its savings depart- 
ment, on the first day of each of said months, and of the average amount 
of such deposits for the six months preceding each of said last men- 
tioned days. A corporation neglecting to make such return shall for- 
feit fifty dollars for each day during which such neglect continues. If it 
wilfully makes a false statement in such return it shall be punished by 
a fine of not less than five hundred nor more than five thousand dollars. • 

Section 69, relative to the inspection of books and examination 
of oflBcers of certain corporations, including savings banks and 
trust companies having savings departments, provides as follows : — 



278 OPINIONS OF THE ATTORNEY-GENERAL. 

Every corporation taxable under this chapter, except a foreign cor- 
poration taxable under section twenty-one, twenty-three or fifty-eight, 
shall, when required for the purposes of any tax except that imposed 
on its income by section thirty-two or thirty-nine, submit its books to 
the inspection of the commissioner, and its treasurer and directors to 
examination on oath relative to all matters affecting the determinations 
to be made by said commissioner. 

Section 80 provides for the collection of penalties and forfeitures, 
as follows : — 

Penalties and forfeitures imposed by this chapter may be collected 
by an action of contract under section seventy-three or b}^ an informa- 
tion under section seventy-five. 

Section 73 is as follows : — 

If a corporation, company or association fails to pay a tax levied un- 
der this chapter, except the excise imposed by section sixtj^-two, the 
treasurer may recover the same in contract in the name of the com- 
monwealth. 

Section 75 provides that, in addition to other methods, "taxes 
under this chapter . . . may be collected by an information 
brought in the supreme judicial court by the attorney general at 
the relation of the state treasurer." 

G. L., c. 63, § 69, first appears in St. 1864, c. 208, § 16, as 
follows : — 

Every corporation taxed by this act shall, when required, submit its 
books to the inspection of the board of commissioners named in section 
five of this act. 

This act applied to every " corporation or banking association not 
exempted from taxation, state and municipal, by the laws of the 
United States" (§ 5), and included savings banks. 

This act was amended by St. 1865, c. 283, section 17 of which 
was as follows : — 

Every corporation to be taxed by this act shall, when required, sub- 
mit its books to the inspection of the tax commissioner, and its treas- 
urer and directors to examination on oath in regard to all matters affect- 
ing the determinations which are to be made by said commissioner. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 279 

This provision was continued in practically identical form down 
to the General Laws, when in said section 69 the words "for the 
purposes of any tax except that imposed on its income by section 
thirty-two or thirty-nine" were inserted after the words "when 
required." 

In Commonwealth v. Cary Imj^rovevient Co., 98 Mass. 19, 22, 
the court, referring to St. 1864, c. 208, § 16, said: — 

The provision of the sixteenth section of the act, that corporations 
shall, when required, submit their books to the inspection of the com- 
missioners, does not imply an investigation and valuation of their prop- 
erty, unless such investigation becomes necessary by reason of the 
absence of other means of information by which to determine the value 
of the stock. 

The two 1920 taxes were required by the statute (now G. L., 
c. 63, § 11) to be assessed and paid on or before May 25, 1920, 
and Nov. 25, 1920, respectively. I assume that taxes based on 
the returns which were made were assessed and paid accordingly. 
There is no provision, such as is found in the law relating to the 
assessment of local taxes (G. L., c. 59, § 75), the law relating to 
the taxation of incomes (G. L., c. 62, §§ 36, 37), and the law relat- 
ing to the taxation of business corporations (G. L., c. 63, §§ 45, 
46), for the subsequent assessment of an additional tax upon 
discovery that the tax first assessed was incorrect. The only pro- 
vision covering the case where, by reason of an incorrect return, 
the proper tax has not been assessed and paid is in G. L., c. 63, 
§ 13, for the punishment by fine of a corporation which wilfully 
makes a false statement in the required return. 

Such a fine is a penalty which, by section 80, may be collected 
by an action of contract by the Treasurer and Receiver-General 
or by an information by the Attorney-General at the relation of 
the Treasurer and Receiver-General. 

In my judgment, the Commissioner is not authorized by section 
69 to inspect the books of a trust company for the purpose of veri- 
fying returns made to him on which taxes have already been 
assessed and paid. The Commissioner, having assessed the taxes 
in question, in my opinion, has no further duty relating to the 
matter of those taxes. Such authority and duty in the premises 



280 OPINIONS OF THE ATTORNEY-GENERAL. 

as may exist are given by statute primarily to the Treasurer 
and Receiver-General and secondarily to the Attorney-General. 
Applying the language of section 69, the inspection is not required 
"for the purposes of any tax," nor does it -relate to any matter 
"affecting the determinations to be made by the commissioner." 
The inspection, if made, would be for the purpose of determining 
whether liability to a penalty existed, and would relate to a matter 
to be determined by the Treasurer and Receiver-General. 

The case of Old Colony Trust Co. v. Commonwealth, 220 Mass. 
409, 413, holding that the Tax Commissioner in assessing such 
taxes is not restricted in the sources of information on which his 
assessments are based to the sworn returns, is not in point. The 
point is that the Commissioner, having assessed the taxes, has 
under the statute no further power or duty in the matter. 

I do not intend in this opinion to determine the question 
whether, in view of the fact that the corporation to which you 
refer is in the hands of the Commissioner of Banks, it is now liable 
to pay a penalty which must come out of funds which would 
otherwise go to other depositors, or whether the Treasurer and 
Receiver-General has the power, or is under the obligation, to 
bring proceedings under G. L., c. 63, §§ 73 or 75. 

See in this connection Atlas Bank v. Nahant Bank, 3 Met. 
581, 582, 583; Greenfield Savings Bank v. Commonwealth, 211 
Mass. 207, 210. 

Boards of Health — Regulations — Approval of Attorney- 
General, 

G. L., c. Ill, § 31, is applicable to all regulations made by local boards of health. 
Under G. L., c. Ill, § 31, the approval of the Attorney-General is required only 

when regulations made thereunder themselves provide a penalty, and not 

where the penalty is provided by statute. 
In St. 1921, c. 303, a penalty is provided by the statute, and therefore regulations 

made thereunder need not be approved by the Attorney-General. 

To the Com- 



m'issioner°S" You ask my opinion whether regulations made by local boards 

Public Health. 

1921 
September 21. 



1921*^ ■ of health under the provisions of St. 1921, c. 303, come under the 



provisions of G. L., c. Ill, § 31, requiring approval by the Attorney- 
General before they become effective. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 281 

St. 1921, c. 303, is entitled "An Act regulating the manufacture 
or bottling of certain non-alcoholic beverages." It amends G. L., 
c. 94, by inserting after section 10 and under the heading "Non- 
Alcoholic Beverages" five new sections, lOA to lOE, inclusive. 

Section lOA authorizes local boards of health to grant permits 
to engage in business. Section lOB requires them to examine the 
premises of persons having permits. Section IOC requires materials 
used to be uncontaminated and wholesome. The remaining sec- 
tions are as follows : — 

Section lOD. The department of public health and local boards of 
health may make rules and regulations to carry out the three preceding 
sections. 

Section lOE. Any person who engages in the business of the man- 
ufacture or bottling of carbonated non-alcoholic beverages, soda waters, 
mineral or spring waters without the permit provided for in section ten A 
or who violates any provision of sections ten A to ten D, inclusive, or 
of any rule or regulation made thereunder, shall be punished for a first 
offence by a fine of not more than one hundred dollars and for a subse- 
quent offence by a fine of not more than five hundred dollars. 

G. L., c. Ill, § 31, is as follows: — 

Boards of health may make reasonable health regulations which shall 
be published once in a newspaper if one is published in the town, other- 
wise in a newspaper published in the county. All regulations made 
hereunder which provide a penalty for violation thereof shall, before 
taking effect, be approved by the attorney general. Such publication 
shall be notice to all persons. 

Said chapter 111 relates to "Public Health," and sections 26 
to 32, inclusive, of that chapter are under the heading " City and 
Town Boards of Health." 

In the Revised Laws the corresponding chapter is chapter 75, 
entitled "Preservation of the Public Health," of which sections 9 
to 15 are under the heading "City and Town Boards of Health." 
Section 14 of said chapter, as amended by St. 1914, c. 90, is as 
follows : — 

The board of health of a town shall publish all regulations made by 
it in a newspaper of its town, or shall post them up in a public place in 
the town. Such publication or posting shall be notice to all persons. 



282 OPINIONS OF THE ATTORNEY-GENERAL. 

The word "town," when used in any statute, inchides city. G. L., 
c. 4, § 7, cl. 34. 

There are many statutes now appearing in the General Laws 
which authorize local boards of health to make regulations on 
specific subjects. Many of these statutes are old and well estab- 
lished, and local boards of health have frequently acted under 
them in making regulations for the public health and safety. 
Among the subjects covered by such statutes are nuisances (G. L., 
c. Ill, §§ 122, 127); cemeteries (G. L., c. 114, § 37); articles of 
food (G. L., c. 94, §§ 146, 148); milk stations (G. L., c. 94, §32); 
sausage factories (G. L., c. 94, § 144); bakeries (G. L., c. Ill, 
§§ 37, 38); dispensaries (G. L., c. Ill, § 50); day nurseries (G. L., 
c. Ill, §§ 60, 62); dangerous diseases (G. L., c. Ill, §§92, 95, 105); 
noisome trades (G. L., c. Ill, §§ 143, 146); stables (G. L., e. Ill, 
§§ 155, 157); quarantine (G. L., c. Ill, § 177); vaccination 
(G. L., c. Ill, § 181); and manicuring (G. L., c. 140, § 51). 

In the statute relating to articles of food (G. L., c. 94, § 146) 
the regulations are made subject to the approval of the Depart- 
ment of Public Health. This is the only provision of which I am 
aware, except that appearing in G. L., c. Ill, § 31, for supervision 
of regulations of local boards of health before they become effective. 
In most of the statutes a penalty is provided for violation of such 
regulations, such penalty being generally a fine and sometimes a 
loss of license. 

By G. L., c. 114, § 37, local boards of health are authorized to 
impose penalties not exceeding $100 for breach of regulations 
concerning burial grounds and interments. I know of no other 
provision granting such authority prior to the passage of the statute 
of 1920, hereinafter referred to. 

In G. L., c. 94, § 146, and c. 114, § 37, there are provisions re- 
quiring publication of regulations before they become effective. 
Such provisions do not occur in the other statutes cited. Prior to 
the enactment of the General Laws there was a general statutory 
requirement that all regulations made by local boards of health 
should be published. R. L., c. 75, § 14, as amended. Whether 
this requirement is continued in the General Laws is a question 
to be considered. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 

In 1920 the General Court passed an act (c. 591) entitled "An 
Act to make certain substantive changes in and additions to the 
laws relating to towns." That act contains a number of 'sections 
which are in the form of amendments to previous statutes, and 
some which are not. Among the latter is section 17, which is as 

follows : — 

Health Regulations. 
Town boards of health may make reasonable health regulations which 
shall be published once in a newspaper if one is published in the town, 
otherwise in a newspaper published in the county. All regulations 
made hereunder which provide a penalty for violation thereof shall, 
before taldng effect, be approved by the attorney-general. 

The proper construction of this statute is considerably affected 
by the disposition made of it in the General Laws. It is there com- 
bined with R. L., c. 75, § 14, as amended, and thus combined 
appears as G. L., c. Ill, § 31. St. 1920, c. 591, § 17, standing by 
itself, might well be interpreted simply to authorize, under the 
conditions stated, the making of various kinds of reasonable 
health regulations not authorized by any other statute. But this 
statute has been combined in the General Law^s with a general 
requirement for publication, which must have a broader applica- 
tion. It is my opmion that the requirement with respect to publi- 
cation was intended by the General Court to be a general one, appli- 
cable to all cases where no specific provision is made. Doubtless, 
also, the section has the effect of giving power to boards of health 
to make reasonable health regulations in cases not covered by 
other statutes. 

It remains to consider and determine the meaning of the words 
"all regulations made hereunder which provide a penalty for 
violation thereof shall, before taking effect, be approved by the 
attorney-general." I am not able to say that this provision was 
intended to apply only in cases where no other statute is applicable. 
Nor do I overlook the use of the word "hereunder," taken from 
the statute of 1920. In my judgment, the provision for publica- 
tion in G. L., c. Ill, § 31, makes that section applicable to all 
regulations made by local boards of health. But the provision 
for review by the Attorney-General does not apply to all such 



283 



284 



OPINIONS OF THE ATTORNEY-GENERAL. 



regulations. By its terms it is confined to regulations which them- 
selves provide a penalty for violation thereof, as distinguished 
from regulations for which a penalty is provided by statute. 
No doubt a board of health may fix a penalty for violation of its 
regulations when authorized so to do by the Legislature. Carthage 
v. Colligan, 216 N. Y. 217; cf. Lowell v. ArchambauH, 189 Mass. 
70, 73. But where the Legislature has by statute fixed the penalty 
for such violation, the board of health has no jurisdiction in that 
matter. Johnston v. Behnar, 58 N. J. Eq. 354. The penalty in 
such a case is provided by the statute and not by the regulations. 

In cases where the making of regulations is particularly provided 
for by statute the General Court has almost uniformly provided 
the penalty. In cases not thus covered, where boards of health 
may desire to make regulations, they may desire also to provide 
penalties for violation thereof. In such cases, and also in the case 
of regulations made under G. L., c. 114, § 37, and other statutes, 
if any there be, where the General Court has left the matter of 
providing penalties to the local boards of health, and in those 
cases only, such regulations must, in my opinion, be submitted to 
the Attorney-General. 

In the statute to which you refer (St. 1920, c. 303) the General 
Court has provided a penalty. I am therefore of the opinion that 
regulations made under that statute need not be approved by the 
Attorney-General . 



Treasurer and Receiver-General — Legacy and Succession 
Tax — Determination of Liability of an Estate to a 
Tax. 

The Treasurer and Receiver-General cannot determine, and should not attempt 
to advise, whether real estate is charged with a lien for payment of a legacy 
and succession tax which may become due in the future. 



To the 

Treasurer and 
Receiver- 
General. 
1921 
September 22. 



You ask my opinion w4iether there is a lien to-day for a succes- 
sion tax which might possibly, but not probably, become due 
hereafter under the terms of a will which, as stated by you, show 
a possibility of a future interest in the decedent's estate passing 
in such a wav as to become liable to a collateral inheritance tax. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 285 

I am informed that this opinion is requested at the instance of a 
bank which is considering the advisabihty of making a loan on real 
estate which was part of the decedent's property. 

In an opinion of a former Attorney-General to the Treasurer 
and Receiver-General it was stated that "the Treasurer of the 
Commonwealth has neither the power to determine nor the duty 
to advise in advance in any case as to whether a particular legacy 
is taxable, or for how much it is taxable, or when the tax shall be 
paid, or any other such question." I Op. Atty.-Gen. 85. 

Even more clearly the Treasurer and Receiver-General cannot 
determine, and should not attempt to advise, whether a lien now 
exists which cannot until some future time be enforced. The 
authority of the Treasurer and Receiver-General in such cases is 
limited to an application to the Probate Court to determine the 
amount of taxes which have become payable, and of interest thereon, 
for which the real estate is charged with a lien, and after such 
determination to collect said taxes and interest. St. 1910, c. 440; 
G. L., c. 65, § 31. Until a tax becomes payable, the Treasurer 
and Receiver-General has no authority or duty in the matter. 

I think you should say, in substance, in answer to the inquiry 
made of you, that you cannot undertake to answer the inquiry 
or to give advice upon it, and that certainly you cannot now waive 
any claim of lien to which the Commonwealth may be entitled. 
See in this connection St. 1903, c. 276. 

I should add that officers of the State government are entitled 
to the opinion of the Attorney-General only upon questions neces- 
sary or incidental to the discharge of the duties of their office. 
See I Op. Atty.-Gen. 565; II Op. Atty.-Gen. 100. The question 
which you ask seems to me not to fall within that class. 



286 OPINIONS OF THE ATTORNEY-GENERAL. 



Fisheries and Game — Lobsters — License — Alien — Ac- 
tually ENGAGED IN LoBSTER FiSHING FOR FiVE YeaRS 

PRECEDING Date or License. 

In the matter of granting a license to an alien to catch or take lobsters under St. 
1921, c. 116, the determination as to whether or not the alien in question has 
actually been engaged in lobster fishing in the county for five years next 
preceding the date of the license is for the official upon whom the responsibility 
rests in a given case. 

In determining the question, the intent of the applicant with respect to his occu- 
pation during the period as well as the facts respecting his employment are to 
be taken into consideration. 

To the Com- -\7-i ji •• i ' e i • 

missionerof loii have requested my opinion upon a question oi law in con- 

Conservation. . .,,. *. i>o-fr>->i ii/-> I'l- 

1921 nection with the interpretation or bt. 1921, c. lib, which is an act 

September 22. . / . 

relative to the granting of licenses for the catching of lobsters. 

Section 1 provides, in part, that the clerk of any town in certain 
counties therein enumerated, situated on the shores of the Com- 
monwealth, may grant a license to catch or take lobsters " to any 
individual who is an alien and who resides in the county where 
the town lies; provided, that such alien has resided in said county, 
and has been actually engaged in lobster fishing therein, for five 
years next preceding the date of the license." 

You have before you the case where an alien who is an appli- 
cant for such a license found it necessary, during a period of one 
year within the limit of the five years preceding the date of his 
application for a license, to refrain from lobster fishing and to 
go back from the coast on account of his physical condition and 
on the advice of his medical adviser. During his temporary 
absence he showed no intention of disposing of his gear used in the 
fishing, and subsequently returned to engage again in the business, 
and was engaged in no other business in the meantime. You ask 
whether this interim of one year during the period of five years 
deprives the applicant from having issued to him a lobster fisher- 
man's license. 

Your inquiry, of course, requires a construction of the proviso 
that an alien applicant "has been actually engaged in lobster 
fishing therein, for five years next preceding the date of the license." 

In the case of In re Straivbridge & Mays, 39 Ala. 367, 375, a 



J. WESTON ALLEN, ATTORNEY-GENERAL. 287 

statute of that State exempted from militia duty in the State 
persons engaged in certain occupations so long as they are " actually 
engaged" therein. The court, in that case, held that the words • 

"so long as they are actually engaged" could not be construed to 
mean that all those persons who are exempted shall continually 
employ their own personal skill and labor in any and all pursuits 
or occupations on account of which they were exempted. In dis- 
cussing the question the court said : — 

When we say of a man that he is actually engaged in farming or plant- 
ing, we mean that he is really or truly engaged, engaged in fact. The 
words "actually engaged," in common parlance, are the opposite or 
antithesis of "seemingly" or " pretendedly " or "feignedly engaged." 

This line of reasoning, in my opinion, applies to the construction 
of the words "actually engaged" as found in the Massachusetts 
statute under consideration. 

The statutory requirement does not mean that an individual 
must be in fact engaged in lobster fishing every day or every week 
or every month of the specified period of five years. Whether he 
has been "actually engaged" in lobster fishing during the period 
is, like the question of domicil, a mixed question of law and fact, 
and it is for the official upon whom the responsibility rests in a 
given case to determine whether the applicant for a license has been 
actually engaged in lobster fishing within the meaning of the 
statute. In determining the question, the intent of the applicant 
with respect to his occupation during the period, as well as the 
facts respecting his employment, are to be taken into considera- 
tion. Whether the applicant in a given case, when he was unable 
to engage in lobster fishing, in fact engaged in any other work, 
or whether he was incapacitated for any work, whether in the 
case cited the gear used by him in the fishery during his disabiHty 
was used by another person in his stead, or whether he had any 
interest in the business if his gear was in use, and other facts 
relating to each particular case, are to be taken into consideration. 
The question must be determined by the official upon whom rests 
the responsibility of passing upon the qualification of the applicant. 



288 OPINIONS OF THE ATTORNEY-GENERAL. 



Constitutional Law — Searches and Seizures — Searches 
FOR Game or Fish — Powers of Inspector of Fish. 

Under Mass. Const., pt. 1st, art. XIV, searches and seizures are not unreasonable 
if they relate to contraband, illicit or stolen property, and if they are con- 
ducted under a warrant which meets the constitutional requirements. 

Under Mass. Const., pt. 1st, art. XIV, an arrest without a warrant may be made 
of a person in the act of committing a crime or upon reasonable suspicion of 
having committed a felony, and doors may be broken without a warrant 
where there is a breach of the peace or reasonable ground to believe a felony 
has been committed, to apprehend the felon; but a search of a dwelling for 
contraband, illicit or stolen property without a warrant cannot lawfully be 
made without the consent of the owner; and the constitutional protection 
extends as well to a man's person, his papers and all his possessions. 

The prohibition against unreasonable searches includes all searches without a 
warrant, with the exceptions noted, whether or not the search is conducted 
in a dwelling house. 

Right of search is to be distinguished from right of inspection, authorized by 
statutes in numerous cases and upheld as a valid exercise of the police power. 

G. L., c. 130, § 6, purporting to authorize searches without a warrant of suspected 
places, for game or fish unlawfully taken or held, is unconstitutional. 

The State Inspector of Fish and his deputy inspectors, authorized by G. L., c. 94, 
§ 1, to enforce the provisions of G. L., c. 94, §§ 74-80, are not authorized to 
make arrests or to serve warrants, and they are not authorized to exercise 
any of the powers conferred by G. L., cc. 130 and 131. 

m?fsi'o'iiw°rf' You ask my opinion concerning the powers of the Inspector of 

onservation. -p-gj^ ^^^ j^j^ dcputv inspcctoFs, appointed under G. L., c. 21, § 8, 
to search in suspected places, seize unlawful goods and make 
arrests for violations. I assume that your question refers to viola- 
tions of the statutes appearing in G. L., c. 94, §§ 74-82, and 
perhaps also in G. L., cc. 130 and 131. 
Mass. Const., pt. 1st, art. XIV, provides: — 



September 27. 



Every subject has a right to be secure from all unreasonable searches, 
and seizures, of his person, his houses, his papers, and all his posses- 
sions. All warrants, therefore, are contrary to this right, if the cause 
or foundation of them be not previously supported by oath or affirma- 
tion, and if the order in the warrant to a civil officer, to make search in 
suspected places, or to arrest one or more suspected persons, or to seize 
their property, be not accompanied with a special designation of the 
persons or objects of search, arrest, or seizure; and no warrant ought 
to be issued but in cases, and with the formalities prescribed by the 
laws. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 289 

The purpose of this provision, which appears in similar form 
in the Fourth Amendment to the Constitution of the United 
States, may be learned from contemporary history of controversies 
on the subject in this country and in England, well known to the 
framers of our Constitution. In the colonies the practice had 
obtained of issuing writs of assistance to the revenue officers 
empowering them, in their discretion, to search suspected places 
for smuggled goods. This practice James Otis pronounced "the 
worst instrument of arbitrary power, the most destructive of 
English liberty and the fundamental principles of law, that ever 
was found in an English law book," since it placed "the liberty 
of every man in the hands of every petty officer." Cooley's 
Constitutional Limitations, 7th ed., pp. 426-428. The illegality 
of proceedings under general warrants was established in the case 
of Entick v. Carrington, 19 Howell's State Trials, 1029. 

Under this constitutional provision searches and seizures are not 
unreasonable if they relate to contraband, illicit or stolen property, 
and if they are conducted under a warrant which meets the con- 
stitutional requirements. Commonwealth v. Dana, 2 Met. 329, 
334-336; Fisher v. McGirr, 1 Gray, 1, 27-31; Robinson v. Richard- 
son, 13 Gray, 454; Boyd v. United States, 116 U. S. 616, 622- 
630; Veeder v. United States, 252 Fed. Rep. 414, 418; 24 Op. 
Atty.-Gen. (U. S.) 685, 688. 

By statute in this Commonwealth search warrants may be 
issued to search for property stolen or fraudulently concealed, 
counterfeit coin, bank notes or trademarks, unwholesome meat 
or provisions, diseased animals, obscene literature, certain drugs 
and medicines, lottery tickets, gaming apparatus and furniture, 
pool tickets, and dangerous weapons, bombs and explosives, kept 
for an unlawful purpose. G. L., c. 276, § 1. Search warrants 
may also be issued for intoxicating liquors (G. L., c. 138, §§ 61-64), 
and for game or fish unlawfully taken and concealed (G. L., 
c. 130, § 7). Property of the kinds enumerated in these statutes 
is properly made subject to search and seizure. Fisher v. McGirr, 
1 Gray, 1, 27, 28; Boyd v. United States, 116 U. S. 616, 623, 624; 
Cooley's Constitutional Limitations, 7th ed., pp. 432, 433. 

Searches and arrests without warrant are authorized only in 



290 OPINIONS OF THE ATTORNEY-GENERAL. 

particular classes of cases. An arrest without warrant may be 
made by a peace officer, generally speaking, of a person in the act 
of committing a crime (Comirfbnwealth v. Hastings, 9 Met. 259; 
Conimonwealth v. Tohin, 108 Mass. 426); or upon reasonable 
suspicion of having committed a felony (Commonwealth v. Carey, 
12 Cush. 246, 252; Commonivealth v. Phelps, 209 Mass. 396, 404). 
A peace officer has the right to break open doors without a warrant 
where there is an affray, assault or breach of the peace, or where 
he has reasonable ground to believe that a felony has been com- 
mitted, to apprehend the felon. McLennon v. Richardson, 15 
Gray, 74, 77; CommonweaHh v. Tohin, 108 Mass. 426, 429; Ford 
V. Breen, 173 Mass. 52; CommonweaHh v. Phelps, 209 Mass. 396, 
407, 408; Delafoile v. New Jersey, 54 N. J. L. .381. 

But a search of a dwelling for contraband, illicit or stolen prop- 
erty without a warrant cannot lawfully be made except with the 
consent of the owner. Weeks v. United States, 232 U. S, 383, 389- 
392; McClurg v. Brenton, 123 la. 368; United States v. Rykowshi, 
267 Fed. Rep. 866, 871; 35 Cyc. 1265. While every man's house 
is his castle, and therefore especially inviolable, the constitutional 
protection extends as well to a man's person, his papers and all 
his possessions. Ex parte Jackson, 96 U. S. 727, 733; Goided v. 
United States, 255 U. S. 298; Amos v. United States, 255 U. S. 
313; cf. Dunn v. Lowe, 203 Mass. 516, 518. 

In Gouled v. United States, the court says: — 

It would not be possible to add to the emphasis with which the 
framers of our Constitution and this court . . . have declared the im- 
portance to poUtical liberty and to the welfare of our country of the 
due observance of the rights guaranteed under the Constitution by 
these two amendments (4th and 5th). ... It has been repeatedly 
decided that these amendments should receive a liberal construction, 
so as to prevent stealthy encroachment upon or "gradual depreciation" 
of the rights secured by them, by imperceptible practice of courts or 
by well-intentioned, but mistakenly overzealous, executive officers. 

I am of opinion that the prohibition against unreasonable 
searches includes all searches without warrant, with the excep- 
tions noted, whether or not the search is conducted in a dwelling 
house. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 291 

A distinction should be noted between right of search and right 
of inspection. A "search" is a quest by an officer of the law. 
Hale V. Henkel, 201 U. S. 43, 76. As applied to searches and 
seizures, the term means an examination of a man's house, premises 
or possessions, or of his person, with a view to the discovery of 
some particular personal property. Black's Law Diet. The word 
"inspection," on the other hand, is derived from the Latin word 
inspedio, meaning the act or process of looking into. An inspection 
has been defined as "something which can be accomplished by 
looking at or weighing or measuring the thing to be inspected, or 
applying to it at once some crucial test." People v. Compagnie 
Gen. Transatlantique, 107 U. S. 59, 62. The term "inspection 
laws" appears in the Constitution of the United States, art. I, 
§ 10, and is there used with reference to State laws regulating the 
quality of articles of commerce and the kind of packages containing 
them. Gibbons v. Ogden, 9 Wheat. 1, 203; Turner v. Maryland, 
107 U. S. 38. 

Laws authorizing inspection of articles of food, merchandise, 
machinery and buildings, and entry on a person's premises for 
that purpose, are common in every State. State v. McGough, 118 
Ala. 159, 167; People v. Harper, 91 111. 357, 367; WiUis v. Stand- 
ard Oil Co., 50 Minn. 290; Cincinnati Gas Light and Coke Co. v. 
State, 18 Oh. St. 237; Abbott's Law Diet. Such provisions in our 
statutes are too numerous to enumerate, but include the follow- 
ing objects: milk (G. L., c. 94, §§ 33, 35), cold-storage warehouses 
(G. L., c. 94, §§ 67, 68), slaughterhouses and carcasses (G. L., 
c. 94, §§ 121-124, 126), meat and provisions (G. L., c. 94, § 146), 
weights and measures (G. L., c. 98, §§ 32, 42), hospitals (G. L., 
c. Ill, § 72), water supply (G. L., c. Ill, § 165), intoxicating 
liquor (G. L., c. 138, § 47), lodging houses (G. L., c. 140, §§ 25, 
37, 38), plumbing (G. L., c. 142, § 11), buildings (G. L., c. 143, 
§§ 6, 13, 28, 35, 48, 50), elevators (G. L., c. 143, §§ 62-64), tene- 
ment houses (G. L., c. 144, § 86; c. 145, § 51), boilers (G. L., c. 146, 
§ 5), buildings for fire prevention (G. L., c. 148, §§5, 44) and places 
of employment (G. L., c. 149, §§ 10, 17). Many of these statutes 
expressly authorize entry on premises, and some provide for taking 
of samples. See also G. L., c. 94, § 304. 



292 , OPINIONS OF THE ATTORNEY-GENERAL. 

Questions concerning the constitutionality of such legislation 
seem rarely to have been considered, but there are a few decisions 
in this Commonwealth where laws of that sort have been upheld 
as a valid exercise of the police power; and the distinction be- 
tween an entry on premises for inspection and for a search has 
been pointed out. 

In Commonwealth v. Ducey, 126 Mass. 269, 273, the court had 
under consideration the constitutionality of an act relating to 
intoxicating liquors, which authorized certain officers to enter 
upon the premises of any person licensed to sell thereunder. The 
court sustained the act, stating their reasons as follows : — 

The power conferred by this section upon the officers therein named, 
to "enter upon the premises of any person licensed to sell under this act, 
to ascertain the manner in which such person conducts his business, 
and to preserve order," does not authorize any search or seizure of per- 
son or property; and is therefore not open to the objection ... of 
not providing for a previous oath or affirmation, and a special designa- 
tion of the persons or objects of search, arrest or seizure, as required 
by the fourteenth article of the Declaration of Rights. It is but a reas- 
onable exercise of the police power to preserve the public peace, and 
to see that the business carried on in the buildings described in the 
several licenses is conducted according to the conditions of the license, 
the provisions of the statute under which it is granted, and the stipu- 
lations of the bond executed by the licensee himself. 

The court specifically stated that the evidence did not require 
them to consider the validity of another provision of the act au- 
thorizing the taking of samples of liquors, nor whether the officers 
would have the right, after demanding and being refused admit- 
tance, to break outer doors to make entry. 

In Commonwealth v. Carter, 132 Mass. 12, 14, 15, the court held 
constitutional an act which authorized inspectors of milk to enter 
carriages used in the conveyance of milk, and when they had reason 
to believe any milk found therein was adulterated to take speci- 
mens for analysis. The reasons which the court gave were, in 
part, as follows : — 

If the statute had required that all milk offered for sale should first 
be inspected, it would hardly be contended that the trifling injury to 
property occasioned by taking samples for inspection would be such a 



J. WESTON ALLEN, ATTORNEY-GENERAL. 

taldng of private property for public use as to require that compensa- 
tion be made therefor. Such an injury to property is a necessary inci- 
dent to the enforcement of reasonable regulations affecting trade in 
food. Private property is held subject to the exercise of such public 
rights, for the common benefit; and in the case of licensed dealers in 
merchandise, the injury suffered by inspection is accompanied by ad- 
vantages which must be regarded as a sufficient compensation. . . . 
Instead of requiring all milk offered for sale to be first inspected, the 
Legislature for obvious reasons has permitted licensed dealers to sell 
milk without inspection, has imposed penalties for selling adulterated 
milk, has defined what shall be deemed adulterated milk, and has pro- 
vided that when the inspector of milk has reason to believe that any 
milk has been adulterated he maj^ take specimens thereof in order that 
by analysis or otherwise he may determine whether the milk has been 
adulterated. Such a seizure of milk for the purposes of examination is 
a reasonable method of inspection, and does not require a warrant. 
It is a supervision under the laws by a public officer of a trade which 
concerns the public health, and is within the police power of the Com- 
monwealth. 

In Commonwealth v. Smith, 141 Mass. 135, 138, the court, 
referring to the preceding case, said : — 

The right given by the statutes to take specimens of milk was held 
to be a constitutional exercise of the police power of the Commonwealth, 
in Comnionweallh v. Carter, L37 Mass. 12, on the ground that it was a 
reasonable method of inspecting an article of food. 

In brief, these cases sustain the right of an officer, authorized 
by a statute which is justified as a legitimate exercise of the police 
power, to make peaceable entry for purposes of inspection, and 
also to take samples without compensation, as a reasonable method 
of inspection, in view of the trifling injury to property caused 
thereby. The cases do not hold that doors may be broken where 
entry is opposed. Whether that would be lawful is left in doubt. 

With respect to the power to search for game or fish unlawfully 
taken or held, R. L., c. 91, § 91, provided as follows: — 

For the purpose of enforcing the provisions of section eightj^-eight, 
any one of the commissioners on fisheries and game or their deputy or 
any member of the district pohce may search in suspected places for, 
seize and remove lobsters which have been unlawfully taken, held or 
offered for sale. 



293 



294 OPINIONS OF THE ATTORNEY-GENERAL. 

In 1904 a statute was passed (St. 1904, c. 367) authorizing search 
to be made "with a warrant" for game or fish unlawfully taken or 
held in places other than dwelling houses. 

In Dunji V. Lowe, 203 Mass. 516, the plaintiff brought suit 
against the defendant, a duly qualified deputy fish and game com- 
missioner, for forcibly seizing and opening sacks containing lob- 
sters in the manual possession of the plaintiff. The court held, with 
respect to R. L., c. 91, § 91, that it did not contemplate or authorize 
such a violation of personal rights, and ordered judgment for the 
plaintiff. Referring to St. 1904, c. 367, the court said: — 

The St. 1904, c. 367, purports to cover the whole subject of searches 
by a commissioner or deputy commissioner on fisheries and game for 
game or fish befieved to be taken or held in violation of law. Seem- 
ingl}' it was intended to relieve the subject of constitutional objections 
that might be made to searches under the R. L. c. 91, § 91. See Con- 
stitution of Massachusetts, Declaration of Rights, art. 14; Fisher v. 
McGirr, 1 Gray, 1. This later statute includes searches for lobsters, 
and supersedes and repeals by implication, so much of § 91, relied on by 
the defendant, as relates to searches. It is therefore unnecessary to 
consider the constitutional question discussed at the argimient. 

After this decision was rendered, the General Court, by St. 
1910, c. 548, amended St. 1904, c. 367, § 1, in certain respects 
not here material and by inserting after the word "with" and 
before the words "a warrant" the significant words "or with- 
out." This statute now appears in G. L., c. 130, § 6, in the fol- 
lowing form : — 

The director, a warden, deputy or state police officer, may, without 
a warrant, search any boat, car, box, locker, crate or package, and any 
building, where he has reason to beheve any game or fish unlawfully 
taken or held may be found, and may seize any game or fish so taken 
or held, which shall be disposed of in such manner as the director deems 
for the best interests of the commonwealth; provided, that this section 
shall not authorize entering a dwelling house, or apply to game or fish 
passing through this commonwealth under authority of the laws of the 
United States. 

In the light of the previous discussion, and in accordance with 
what is apparently the view indicated in Dunn v. Lowe, supra, 



J. WESTON ALLEN, ATTORNEY-GENERAL. 295 

it is my opinion that section 6, in purporting to authorize the 
director and other officers without a warrant to make searches for 
game or fish unlawfully taken or held, is in violation of Mass. 
Const., pt. 1st, art. XIV, quoted above. In my opinion to you 
under date of July 2, 1920 (V Op. Atty.-Gen. 589), where the appli- 
cation of the statute to a search of parts of a hotel not used for 
dwelling purposes was considered, this constitutional question was 
not referred to by the inquiry or discussed. I am stating my 
opinion on that question now for the protection of the officers in 
your department who might otherwise unwittingly be subjected 
to some civil or criminal liability. It should be added that the 
statute might be reframed as an inspection law in such form as to 
remove the constitutional objection. On that point I express no 
opinion. 

Your letter asks as to the powers of the Inspector of Fish and 
deputy inspectors whose appointment is authorized by G. L., 
c. 2l/§ 8. 

The Inspector of Fish is expressly authorized by G. L., c. 94, 
§ 81, to enforce the provisions of sections 74 to 80, inclusive, of 
that chapter, and his deputy inspectors have the same authority. 
A deputy is one who by appointment exercises an office in another's 
right. Carter v. Hornback, 139 Mo. 238; Willis v. Mekin, 53 
N. C. 62; Bouvier's Law Diet.; cf. Attorney-General v. Tillinghast, 
203 Mass. 539, 544. In enforcing those provisions they have not, 
however, the powers of peace officers to make arrests or to serve 
warrants. G. L., c. 276, § 23; Rohan v. Sawin, 5 Cush. 281, 284; 
AveriUy. Chadwick, 153 Mass. 171; Beard \\ Seavey, 191 Mass. 503. 
Nor do I find any provision authorizing search warrants to be 
issued in cases of violations of said sections 74 to 80, inclusive. 

I find no provision authorizing the Inspector of Fish or his 
deputy inspectors to exercise any of the powers described in 
chapters 130 and 131. The powers of enforcement therein given 
are confined to the director, the wardens and deputy wardens, 
State police, and officers qualified to serve criminal process. In 
this category the Inspector of Fish and his deputies are not 
included. 



296 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Com- 
missioner of 
Conservation. 

1921 
September 29. 



Inland Waters — Licensing of Fishermen. 

Unless the contrary appears by express provision or clear implication, the words 
"inland waters," as used in G. L., c. 131, § 3, apply to waters where the tide 
does not ebb and flow. 

You ask my opinion as to the meaning of the words "inland 
waters," as used in Gen. St. 1919, c. 296, § 1, incorporated in 
G. L., c. 131, § 3, the particular question at issue being whether 
Bass River, which lies between the towns of Yarmouth and 
Dennis, is an inland water, within the meaning of the statute. 

The section referred to provides, in part, as follows: — 

It shall be unlawful for any person to hunt, pursue, take or kill any 
bird or quadruped, or to fish, except as hereinafter provided, in any of 
the inland waters of the commonwealth which have been stocked by 
the board of commissioners on fisheries and game, hereinafter called 
the commissioners, since January first, nineteen hundred and ten, 
without having first obtained a certificate of registration as hereinafter 
provided. 



Bass River was stocked with fish after Jan. 1, 1910, by the 
Board of Commissioners on Fisheries and Game. You state that 
the river is tidewater for practically, if not actually, its entire 
length. The question, then, resolves itself into this: Is a tidal 
river within the meaning of the term "inland waters" as used 
in the act? 

The words "inland waters" are variously defined with respect 
to their use for special purposes, widely diverse, which have no 
special relation to each other. 

For example, in cases arising under a Federal statute regarding 
the seizure of property in time of war, the United States Supreme 
Court has defined these waters to include rivers where the tide 
ebbs and flows. Porter v. United States, 106 U. S. 607, 611; see 
also The Cotton Plant, 10 Wall. 577. 

In dealing with a policy of marine insurance, a New York 
court has held that inland waters include not only rivers but 
bays and arms of the sea between projections of land. Cogswell 
V. Chuhh, 1 App. Div. (N. Y.) 93. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 297 

It is clear that definitions relating to navigation, insurance 
and the uses to be made of inland waters in time of war can have 
little application to fishing rights in such waters. 

This Commonwealth has not hesitated to incur large expense 
in cultivating fish life in the fresh waters of the State. At the 
outset, the chief concern of the Department of Fisheries and 
Game was the protection and propagation of fresh- water fish. In 
recent years the department has extended its activities to the study 
of the shellfish industries and the protection and propagation of 
lobsters, clams and scallops, as well as smelts and alewives. I 
am informed that in tidal rivers there is a general mingling of 
fresh-water and salt-water fish, and that trout and herring, for 
example, may be caught in the same waters. 

The activity of the department in the protection and prop- 
agation of salt-water fish raises the inquiry and makes neces- 
sary a determination as to the meaning and application of the 
statute in question. It is clear that the statute is not intended 
to apply to the coast fisheries nor to require the licensing of fish- 
ermen, except in so far as is necessary to protect the inland waters 
which have been stocked by the department. To require a license 
for fishing in a river where the tide ebbs and flows, because it may 
have been stocked with fish, would be but one step removed from 
requiring a license to fish in harbors and bays where trout or other 
fresh-water fish may at times be found. 

In determining the purpose and intent of the statute, an ex- 
amination of the statutes in other States having tidal rivers is of 
value. In Maine (R. S., c. 33, § 17) the application of the law 
defining the annual closed season on trout is limited to " brooks, 
streams and rivers of the state above tide waters." Similarly, 
in section 26 of the same chapter, the prohibition with respect to 
taking smelts with a dip-net is limited to "all the inland waters 
of the state above tide waters." 

In New Hampshire the closed season on pike, perch or white 
perch and black bass originally extended to "any of the waters 
of this state" (P. S., c. 133, § 8), but in 1893, by an act of the 
Legislature (St. 1893, c. 20, § 2), the words "except tide waters " 
were inserted. Similarly, fishing through the ice is subject to 



298 



OPINIONS OF THE ATTORNEY-GENERAL. 



certain restrictions (St. 1897, c. 54, § 1) "except in tide waters 
within the state." The Supreme Court of that State has held, 
in Scott y. Willson, 3 N. H. 321, 325: — 

The common law considers all rivers, where the tide does not ebb 
and flow, as inland rivers, not navigable, and as belonging to the owners 
of the adjacent soil. (Citing 4 Burr. 2162.) 

In a Connecticut case the term "inland rivers" is used to 
designate rivers in which the tide does not ebb and flow. Adams 
V. Pease, 2 Conn. 481. 

I am of the opinion that, in all laws providing for the licensing 
of fishermen and imposing limitations upon fishing in inland 
waters, unless the contrary appears by express provision or clear 
implication, the words "inland waters" are to be taken to apply 
to waters where the tide does not ebb and flow. 



Sale of Shares of Capital Stock — Word 
H. V. Greene Company. 



'Certificate" 



To the Com- 
niissionerj 
of Banks. 
1921 
September 29. 



The provisions of G. L., c. 174, do not apply to the sale of shares of the capital 
stock of corporations on the partial payment or instalment plan. 

I am in receipt of your inquiry as to whether the H. V. Greene 
Company comes within the provisions of G. L., c. 174. 

The facts, as I understand them, upon which your inquiry is 
based, are these: — 

The H. V. Greene Company is a corporation organized under 
the laws of this Commonwealth, and among its purposes, as 
stated in its articles of organization, are to be found the follow- 
ing: "to draw, accept, indorse, acquire and sell all or any nego- 
tiable or transferable instruments or securities, including bonds, 
bills of exchange; . . . sell, exchange and deal in shares, stocks, 
bonds, obligations or securities of any private or public corpora- 
tion, government or municipality; ... to sell . . . shares of the 
capital stock, bonds, indentures or other evidence of indebtedness 
created by this or any other corporation or corporations of this 
or any other state or country. ..." 



J. WESTON ALLEN, ATTORNEY-GENERAL. 299 

This company has, under its charter, been selHng on the partial 
payment or instalment plan shares of the capital stock, common 
and preferred, of The Mutual Finance Corporation, The Com- 
mercial Finance Corporation and The First People's Trust, the 
first two corporations being organized under the laws of this Com- 
monwealth, and the latter operated under a declaration of trust. 

G. L., c. 174, § 1, provides as follows: — 

The business of issuing, negotiating or selling any bonds, certificates 
or obligations of any kind on the partial payment or instalment plan, 
unless such bond, certificate or obligation shall at the time of issuance, 
negotiation or sale be secured by adequate property, real or personal, 
shall be transacted in the commonwealth only by corporations subject 
to the requirements of this chapter. Every such corporation before 
doing business in the commonwealth shall have at least one hundred 
thousand dollars of capital stock fully paid in, which, for the benefit 
and protection of all its investors equally shall be deposited in trust 
with the state treasurer or with the duly authorized officer of some 
other state, . . . 

Section 3 provides : — 

No corporation shall transact the business described in section one 
without receiving a certificate of authority from the commissioner of 
banks. Upon the making of the deposit with the state treasurer or 
the filing with the commissioner of the certificate required by section 
one and upon an examination or exhibition of the assets and liabilities 
of the corporation showing that it is in a sound financial condition, 
and if it is other^vise duly qualified under the laws of the commonwealth 
to transact business therein, the commissioner shall issue to it a certifi- 
cate of authority to do business in the commonwealth. 

The business referred to in section 1 of this act is that "of 
issuing, negotiating or selling any bonds, certificates or obliga- 
tions of any kind." The particular business carried on by the 
H. V. Greene Company, with reference to which this inquiry is 
addressed, is that of selling shares of capital stock issued by a 
corporation other than its own. The question which presents 
itself, therefore, is whether the word "certificate," as used in said 
section, can be said to include and apply to shares of stock or 
certificates of stock. 



300 OPINIONS OF THE ATTORNEY-GENERAL. 

Where words have a peculiar and appropriate meaning in the 
law they should be construed and understood according to such 
meaning. This is the rule of exposition laid down in G. L., c. 4, 
§ 6, cl. 3. It is also well settled that statutes are to be construed 
according to the intention of the framers. 

The word " certificate," in its broad sense, means a documentary 
declaration. There are any number of different kinds of certifi- 
cates. When the word stands alone the particular kind of certifi- 
cate that it has reference to is to be determined from the remainder 
of the text. The words used in section 1 of the act are "bonds, 
certificates or obligations of any kind." The words "obligations 
of any kind" modify the words "bonds" and "certificates," 
and clearly denote that the word "certificate," as used in said 
section, was intended to be used in the sense of an obligation or 
certificate of indebtedness. 

A share or certificate of stock, though carried as a liability of 
the corporation or joint stock company issuing the same, is not 
an obligation in the sense of its being a promise to pay. It is an 
official voucher as to the ownership of a share in a corporation or 
a joint stock company. 

A careful examination of the statutes dealing with corporations 
discloses but one instance where the Legislature used the word 
"certificate" as applying to shares or certificates of stock. (G. L., 
c. 155.) It manifested this intention by defining the word "cer- 
tificate" under section 26 of said chapter. In all other instances 
the words used are "shares," "shares of stock" and "certificates 
of stock." 

It is to be noted that just prior to the time that said chapter 
174 was first enacted (St. 1904, c. 427) a number of corporations, 
foreign and domestic, organized as so-called bond and investment 
companies, engaged in the business of issuing and selling bonds 
on the partial payment or instalment plan, with promises of a 
maturity value far in excess of the aggregate of the instalments 
and any reasonable interest. These companies preyed upon the 
public and gave them nothing in return for their investment other 
than unguaranteed promises of large interest in the future. 
Finding that these companies were able to operate under the 



J. WESTON ALLEN, ATTORNEY-GENERAL. 301 

then existing laws without proper supervision, the Legislature, 
on the recommendation of the Commissioner of Corporations, the 
Insurance Commissioner and the Savings Bank Commissioners, 
passed said act as "An Act to regulate bond and investment 
companies." It was unquestionably because of this desire to 
protect purchasers of such obligations, and not purchasers of 
shares of stock in business corporations, as appears in the com- 
munications addressed by the Attorney-General to the Insurance 
Commissioner and the Commissioner of Corporations, enclosing 
a draft of a bill providing for the licensing and examination of 
corporations doing this class of business, which were, in turn, 
submitted to the Legislature by His Excellency John L. Bates 
(see House Document 'No. 1295, 1904), that the Legislature 
passed the act. 

To hold that said chapter was intended to apply to and to 
include shares of stock would mean that no person, partnership 
or association could engage in the business of selling stock on the 
partial payment or instalment plan in this Commonwealth as 
broker or selling agent, as under the provisions of section 1 of 
said chapter the business could be carried on only by corporations 
subject to the requirements of said chapter. This was clearly 
not the intention of the Legislature. 

I am therefore of the opinion that, on the facts as stated, the 
H. V. Greene Company does not come within the provisions of 
G. L., c. 174, and that it was therefore unnecessary for it to receive 
a certificate of authority from you, as Commissioner of Banks, 
before it engaged in the business of selling certificates of stock on 
the partial payment or instalment plan. 

The General Court at its last session, upon the report of a 
special commission which recommended legislation relating to 
the issue and sale of negotiable securities, enacted St. 1921, 
c. 499, which must be considered in relation to the question 
presented by your letter. 



302 OPINIONS OF THE ATTORNEY-GENERAL. 



Depaktment of Editation — Continuation Schools — Re- 
fusal TO MAINTAIN — FORFEITURE OF FuNDS BY THE 
COMMON^WEALTH. 

It is the duty of the Department of Education to require the maintenance of a 
continuation school in those municipalities in which, in any year, 200 or more 
minors under sixteen are employed not less than six hours per day, by au- 
thority of emploj-ment certificates or home permits, exclusive of minors em- 
ployed only during vacations. 

A town which has accepted Gen. St. 1919, c. 311, and in which, during 1920, 308 
minors of the class described were employed not less than six hours per day, 
by authority of employment certificates or home permits, exclusive of minors 
employed only during vacations, is required to maintain a continuation school 
during the ensuing school year. 

If such town has refused or neglected to appropriate the money necessary for the 
maintenance of such a continuation school, in compliance with G. L., c. 71, 
§ 26, it becomes the duty of the Department of Education to estimate the sum 
necessary properly to provide for the maintenance of the school, and to notify 
the Treasurer and Receiver-General that the said town has forfeited from 
funds due it from the Commonwealth a sum equal to twice that so estimated. 



To the Com 
inissionei 



You have requested my opinion on certain questions of law 

i92T^ '°"' involving the construction to be given G. L., c. 71, § 21. Said 

— — ' section 21 and the five following sections contain the statutory 

provisions relative to the establishment and maintenance of 

continuation schools. Section 21 reads as follow^s: — 

Every town which has accepted chapter three hundred and eleven 
of the General Acts of nineteen hundred and nineteen, and in which, 
in any year, two hundred or more minors under sixteen are employed 
not less than six hours per daj^ by authority of employment certificates 
or home permits described in section one of chapter seventy-six, exclu- 
sive of minors employed only during vacations, shall, and any other 
town which has accepted said chapter, may, through its school com- 
mittee, local board of trustees for vocational education, or both, estab- 
lish at the beginning of the next school year and maintain continuation 
schools or courses of instruction for the education of such minors, and 
for such others as may be required to attend under section twenty-five. 
The said schools or courses shall be in session the same number of weeks 
in each year as the local high schools, and the sessions shall be between 
the hours of eight in the morning and five in the afternoon of any work- 
ing days except Saturday. 

You state that the town of Braintree has accepted the provi- 
sions of Gen. St. 1919, c, 311, and that the official report from that 



J. WESTON ALLEN, ATTORNEY-GENERAL. • 303 

town and other towns having minors described in said section 21 
employed in Braintree showed by count that there were 380 such 
minors employed there in the calendar year 1920. You further 
state that the school committee of Braintree has notified you in 
writing that the town refuses to continue the continuation school. 
You state that the town of Braintree contends that during some 
portion of the calendar year of 1920 less than 200 minors were 
in attendance at its continuation school, and that because of this 
fact there were not 200 or more minors employed in Braintree 
during the year 1920, and that therefore the town of Braintree 
is not obliged to maintain this continuation school during the 
present school year. 

Your first question is as follows : — 

Is it not incumbent upon the Department of Education to deter- 
mine a procedure for securing the count of minors described in G. L., 
c. 71, § 21? 

It is clearly the duty of the Department of Education to 
require the maintenance of a continuation school in those munici- 
palities in which, in any year, 200 or more minors under sixteen 
are employed not less than six hours per day, by authority of 
employment certificates or home permits, exclusive of minors 
employed only during vacations. By the provisions of G. L., 
c. 69, § 1, it is the duty of the Commissioner of Education to 
collect information relative to the performance of their duties by 
school committees. Further, by the provisions of G. L., c. 149, 
§ 89, records and statistics concerning the issuance of employ- 
ment certificates, as may be prescribed by the Department of 
Education, shall be kept, and shall be open to the inspection of 
said department, its officers or agents. Clearly, it is your duty 
to collect the information, in order to ascertain whether or not 
200 or more minors, in any year, are employed under the condi- 
tions set forth in said section 21. 

Your second question is as follows : — 

Does the count of minors, as secured and used by the Division of 
Vocational Education in the Department of Education, in determining 



304 • OPINIONS OF THE ATTORNEY-GENERAL. 

the obligations of towns under the provisions of G. L., c. 71, § 21, deter- 
mine those obhgations fairly and equitably as well as legally? 

You have submitted to me Booklet No. 8, entitled "Com- 
pulsory Continuation Schools," issued under date of February, 
1921, on pages 8 and 9 of which is printed a blank form for return 
as to minors between fourteen and sixteen years of age, who 
within the last calendar year were employed while the schools were 
in session. In my judgment, the form of return is a proper one, 
as a matter of law, and is within the authority of your depart- 
ment, under the statutory provisions for obtaining information 
as set forth above. The question as to whether the return secures 
the count fairly and equitably is not strictly within my province 
to answer, but an examination of the return does not indicate, 
in my opinion, anything of an unfair or inequitable nature. 

My answer to your second question makes it unnecessary 
to take up your third question. 

Your fourth question is as follows : — 

Is the town of Braintree required by G. L., c. 71, § 21, to maintain 
continuation schools during the ensuing school year? 

According to the facts submitted by you to me, the official 
report from the town of Braintree shows that during 1920, 380 
minors of the class described in G. L., c. 71, § 21, were employed 
in 1920 not less than six hours per day, by authority of employ- 
ment certificates or home permits, exclusive of minors employed 
only during vacations. On the facts given, the town of Braintree 
having accepted Gen. St. 1919, c. 311, it becomes, by the provi- 
sions of said section 21, mandatory upon the town of Braintree 
to maintain a continuation school for the present school year. 

Your fifth question is as follows : — 

What responsibilities devolve upon the Commissioner of Education 
in administering the provisions of G. L., c. 71, § 26? 

Said section 26 reads as follows : — 

A town required by section twenty-one to establish and to maintain 
continuation schools or courses which refuses or neglects to appropri- 



J. WESTON ALLEN, ATTORNEY-GENERAL. 305 

ate money necessary therefor, shall forfeit from funds due it from the 
commonwealth a sum equal to twice that estimated by the department 
as necessary properly to provide for the same. A sum equal to three 
fifths of such forfeiture shall be paid by the state treasurer to the school 
committee of the delinquent town, and the committee shall expend the 
same for such establishment and maintenance to the same extent as if 
it had been regularly appropriated by the town therefor. 

The first duty of your department is to ascertain whether or 
not the town of Braintree has appropriated the money necessary 
for the maintenance of the continuation school at Braintree for 
the present school year. If the town of Braintree has refused 
or neglected to appropriate the said money, your department 
should then estimate the sum necessary properly to provide for 
the maintenance of the school, and forthwith notify the Treas- 
urer and Receiver-General that the town of Braintree has forfeited 
from funds due it from the Commonwealth a sum equal to twice 
that estimated by your department as necessary properly to pro- 
vide for the maintenance of the school. I am informed that a 
general payment is to be made to the town of Braintree on Nov. 
15, 1921. Consequently, if the town of Braintree has refused or 
neglected to appropriate the necessary money for the continuation 
school, steps should be taken to bring about the forfeiture of the 
funds at the time of the coming payment. 

Your sixth question is as follows : — 

In the case of Braintree, has the town at this time, within the pro- 
visions of the law, refused or neglected to raise and appropriate money 
for the maintenance of continuation schools, as provided by G. L., c. 71? 

Whether or not the town has appropriated the said money is a 
question of fact, and not properly before me for determination. 

Your seventh question is answered by the answer to ques- 
tion 6. 

Your eighth question is as follows : — 

May minors described in G. L., c. 71 (those liable to attend con- 
tinuation schools and employed in a town which had more than 200 
employed in the last calendar year), legally work or legally be certified 
for employment in a town which is violating the provisions of said 
chapter 71? 



306 



OPINIONS OF THE ATTORNEY-GENERAL. 



In my judgment, this question is collateral to those asked by 
you above, which directly concern the obligation of the town of 
Braintree to maintain its continuation school this school year, 
and concerning which your department has authority in the situ- 
ation. The questions involved in your eighth inquiry, in my 
opinion, do not concern the duties of your department but those 
of the Department of Labor and Industries. I must therefore 
be excused from answering the same. 

Finally, you will note that by the provisions of G. L., c. 71, 
§ 26, a sum equal to three fifths of the amount forfeited under that 
section shall be paid by the Treasurer and Receiver-General to 
the school committee of the delinquent town, and the committee 
shall expend the same for such establishment and maintenance 
to the same extent as if it had been regularly appropriated by the 
town therefor. If, after such sum shall be paid to the school 
committee of Braintree, that committee should then refuse to 
maintain the continuation school, the law may be enforced by 
appropriate proceedings. 



Women and Children — Employment in Certain Kinds of 
Business — "In Laboring." 

The inquiry whether a woman or child employed in one of the businesses enumerated 
in G. L., c. 149, § 56, is engaged "in laboring," within the meaning of that 
section, presents a mixed question of law and fact, to be determined under 
the circumstances of each case. 

If the duties discharged by a woman or child employed in one of the businesses 
enumerated in G. L., c. 149, § 56, are discharged during regular hours, are of 
routine character, are of a grade similar to those ordinarily performed by 
women or children in the businesses enumerated, and do not involve judgment 
or discretion, a finding that such woman or child is engaged "in laboring," 
within the meaning of G. L., c. 149, § 56, would ordinarily be warranted, 
even though the labor performed be largely mental and only incidentally 
manual; but such a finding might in some instances be negatived by proof 
that similar duties are discharged by women and children in other businesses 
than those enumerated in said section. 



To the Com- 
missioner 
of Labor and 
Industries. 

1921 
October 11. 



G. L., c. 149, § 56, provides, in part: — 

No child and no woman shall be employpd in laboring in any factory 
or workshop, or in any manufacturing, mercantile, • mechanical estab- 
lishment, telegraph office or telephone exchange, or by any express or 
transportation company more than nine hours in any one day; . . . 



J. WESTON ALLEN, ATTORNEY-GENERAL. 307 

You request me to define the scope of the words "in laboring," 
as used in this act, with respect to the kind of employment covered. 

The quoted portion of this section fixes the maximum number 
of hours in any one day during which women and children may 
be employed "in laboring" in certain designated establishments 
and businesses. The uncertainty as to the meaning of the words 
"in laboring" arises in large measure from the extension of the 
act, from time to time, to include new kinds of establishments and 
businesses. 

G. S., c. 42, § 3, forbade the employment of any child under 
twelve years of age for more than ten hours in any one day "in 
any manufacturing establishment." P. S., c. 74, § 4, prohibited 
the employment of minors under eighteen and of women for 
more than ten hours in any one day "in laboring in any manu- 
facturing establishment." Under this act the words "in labor- 
ing" naturally apply to manual labor as distinguished from work 
primarily mental. 

R. L., c. 106, §§ 23 and 24, extended the prohibitions con- 
tained in those sections to minors under eighteen and to women 
"employed in laboring" in mercantile, manufacturing and me- 
chanical establishments. A large number of women, perhaps the 
majority of women who work in "mercantile" establishments, 
are engaged in selling goods over the counter. Although such 
work involves mental exertion coupled with physical exertion in 
greater or less degree, I cannot suppose that the words " in labor- 
ing" would exclude such women from the scope of the act as 
matter of law. So to construe it would, to a considerable extent, 
defeat extension of it to mercantile establishments. On the other 
hand, it cannot be held to extend to all women who work in such 
establishments, irrespective of the duties discharged. One of my 
predecessors has ruled that St. 1909, c. 514, § 47, which provided 
that "no child and no woman shall be employed in laboring in a 
mercantile establishment" more than fifty-eight hours in a week, 
did not apply to the female manager of a large department in 
such an establishment, whose duties required judgment and 
discretion and did not necessarily involve either manual labor or 
fixed and definite hours. Ill Op. Atty.-Gen. 269. In Com- 



308 OPINIONS OF THE ATTORNEY-GENERAL. 

monwealth v. Riley, 210 Mass. 387, 392; S. C, 232 U. S. 671, 
which upheld the constitutionahty of the latter act, it was pointed 
out that the act did not apply to women who do not labor for 
full working days or who are temporarily or intermittently hired 
for casual tasks, such as sweeping floors or washing windows. 
See also Commonwealth v. Osborn Mill, 130 Mass. 33. 

A considerable extension was made by St. 1913, c. 758, which 
provides, in part : — 

No child under eighteen years of age and no woman shall be employed 
in laboring in any factory or workshop, or in any manufacturing, mer- 
cantile, mechanical establishment, telegraph office or telephone ex- 
change, or bj^ any express or transportation company, more than ten 
hours in any one day; , . . 

This act, with respect to the question which you raise, is sub- 
stantially similar to G. L., c. 149, § 56. It brings within the 
scope of the prohibition telegraph offices, telephone exchanges 
and express and transportation companies. In Commonwealth v. 
John T. Connor Co., 222 Mass. 299 (to which you call my atten- 
tion), it was held that it could not be said as matter of law that 
a female cashier employed to make change in a mercantile estab- 
lishment was not engaged "in laboring," within the meaning of 
the act, and that the question whether she was so engaged was 
properly submitted to the jury upon all the evidence. In that 
case the duties discharged by the cashier involved mental and, 
in a minor degree, manual exertion, did not involve judgment or 
discretion, were of routine character and were performed during 
regular hours. They did not differ sensibly in degree from those 
discharged by telephone and telegraph operators, and, presum- 
ably, from those discharged by female employees of transporta- 
tion and express companies. While it could not be said, as matter 
of law, either that she was or was not engaged "in laboring," 
a finding of fact that she was so engaged could not be disturbed. 
In my opinion, that decision establishes that each case must 
rest upon its own facts, which are to be tested by the standard 
therein laid down. If the duties discharged by a woman em- 
ployed in one of the enumerated industries are discharged during 



J. WESTON ALLEN, ATTORNEY-GENERAL. 309 

regular hours, are of routine character, are of a grade substan- 
tially similar to those ordinarily performed by female employees 
in the businesses enumerated, and do not involve judgment and 
discretion, a finding that the female employee is engaged "in 
laboring," within the meaning of the act, would probably be 
warranted even though the labor performed was largely mental 
and only incidentally manual. If, however, the position and 
duties be common to businesses not included in the act as well as 
to businesses within it, a finding that such female employee is not 
engaged "in laboring" may well be made, since it is not to be 
presumed that the Legislature intended to include some mem- 
bers of the class because they work in selected industries, while 
excluding other members of the same class simply because they 
work in other industries. On the latter ground a finding that 
female accounting clerks, bookkeepers and stenographers are not 
employed "in laboring" might be supported. IV Op. Atty.- 
Gen. 118. 

Taxation — Trust Companies — Liability to Tax where 
Company is in the Hands of the Commissioner of Banks 

OR HAS voluntarily CEASED TO DO BUSINESS. 

Trust companies in the hands of the Commissioner of Banks on April 1 are not 

subject to tax under G. L., c. 63, § 58. 
Trust companies having ceased to do business on April 1 are, nevertheless, subject 

to tax under G. L., c. 63, § 58. 

You ask my opinion whether you are to assess a tax upon cer- xo the Com- 

.•,, • i?u*l.£ Jl- 1_ • missioner of 

tain trust companies, or which nve are now and have been since corporations 
various dates prior to April 1, 1921, in the hands of the Commis- ^ 1921 
sioner of Banks, and two others voluntarily ceased doing business 
on various dates prior to April 1, 1921. 

Trust companies are taxable under G. L., c. 63, §§ 53, 55 and 
58, which are, in part, as follows: — 

Section 53. Every corporation organized under general or special 
laws of the commonwealth for purposes of business or profit, having a 
capital stock divided into shares, except banks whose shares are other- 
wise taxable under this chapter, except insurance companies with capital 
stock and mutual insurance companies with a guaranty capital or per- 
manent fund whose premiums are otherwise taxable under this chapter, 



October 20. 



310 OPINIONS OF THE ATTORNEY-GENERAL. 

and except corporations taxable under sections thirty to fifty-one, inclu- 
sive, in addition to all returns required by its charter, and in addition 
to all returns otherwise required under this chapter, shall annually, 
between April first and tenth, make a return to the commissioner, on 
oath of its treasurer, stating the name and place of business of the cor- 
poration, and setting forth as of April first of the year in which the 
return is made : 

Section 55. The commissioner shall ascertain from the returns or 
otherwise the true market value of the shares of each corporation re- 
quired to make a return under section fifty-three or fifty-four, and 
shall estimate therefrom the fair cash value of all the shares constitut- 
ing its capital stock on April first preceding, which, unless by the charter 
of a corporation a different method of ascertaining such value is pro- 
vided, shall, for the purposes of this chapter, be taken as the true value 
of its corporate franchise. From such value there shall be made the 
following deductions : 

Section 58. Every corporation subject to sections fifty-three or 
fifty-four shall annually pay a tax upon its corporate franchise, after 
making the deductions provided for in section fifty-five, at a rate equal 
to the average of the annual rates for three years preceding that in 
which such assessment is laid, . . . but the total amount of the tax to 
be paid by a trust company in any year upon the value of its corporate 
franchise shall amount to not less than two fifths of one per cent of the 
total amount of its capital stock, surplus and undivided profits at the 
time of said assessment, as found by the commissioner. 

The tax imposed by those sections is an excise tax upon the 
value of the corporate franchise on the first day of April. Com- 
monwealth v. PeoyWs Five Cents Savings Bank, 5 Allen, 428, 438; 
Commonwealth v. Lancaster Savings Bank, 123 Mass. 493, 496; 
Farr Alpaca Co. v. Commomvcalth, 212 Mass. 156, 162. 

On the first day of April, 1921, five of the seven trust com- 
panies to which you refer were in the hands of the Commis- 
sioner of Banks. These corporations, then, were not subject to 
the franchise tax for the year 1921 imposed by G. L., c. 63, §'58. 
Greenfield Savings Bank v. Commonwealth, 211 Mass. 207. It 
was held by this decision that a savings bank of which the Com- 
missioner had taken possession was not subject to an excise tax, 
and the principle applied is equally applicable to the case of a 
trust company. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 311 

G. L., c. 63, § 16, provides for an apportionment of the tax 
imposed upon certain banks which have become incapacitated 
from doing business, by reducing the amount of the tax to corre- 
spond with the period of incapacity. This provision was first 
passed in 1911 (St. 1911, c. 618, § 1), after the tax was assessed 
which was held to be illegally exacted in Greenfield Savings Bank 
V. Commonwealth, siqyra. This statute is, however, expressly made 
applicable only to taxes imposed on deposits in savings banks and 
savings departments of trust companies by G. L., c. 63, § 11, 
and is not applicable to the tax imposed by G. L., c. 63, § 58. 

It is therefore my opinion that the five trust companies in the 
hands of the Commissioner of Banks should not be assessed. 

The remaining two trust companies on the first day of April, 
1921, had ceased to do business. They were, nevertheless, liable 
to pay the franchise tax imposed by G. L., c. 63, § 58. The rule 
is stated by Knowlton, J., in Attorney-General v. Massachusetts 
Pipe Line Gas Co., 179 Mass. 15, 19, in the following words: — 

The franchise which subjects the corporation to taxation is the right 
to do business legally by complying with the laws. A corporation hav- 
ing this right under legislative action cannot relieve itself from liability 
to taxation by neglecting to do business, or ceasing to do business. Its 
franchise remains, and it may do business when it chooses. 

See also the opinion rendered to you under date of March 21, 
1921 (VI Op. Atty.-Gen. 93). In that opinion the distinction 
was pointed out between a franchise tax imposed upon the privilege 
of doing business (such as the tax here in question) and a tax 
imposed "with respect to the carrying on or doing of business'' by 
a corporation, such as the tax on domestic business corporations. 
G. L., c. 63, § 32. The opinion held that a corporation which 
had carried on no business whatever during the preceding calen- 
dar year was not liable to a tax of the latter sort, distinguishing 
such a tax from the ordinary franchise tax, as to which the rule 
as laid down in Attorney-General v. Massachusetts Pipe Line Gas 
Co., supra, is applicable. 

Accordingly, it is my opinion that said two trust companies 
should be assessed under G. L., c. 63, § 58. 



312 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Com- 
missioner 
of Banks. 

1921 
October 27. 



Commissioner of Banks — Possession of Trust Company — 
Public Officer — Advice by Attorney-General or 
Special Counsel. 

When the Commissioner of Banks takes possession of a trust company under 
the authority conferred by St. 1910, c. 399 (now G. L., c. 167, §§ 22 to 36), 
he acts as a public officer, and may request advice of the Attorney-General 
as to the discharge of duties imposed upon him by law. 

Under St. 1910, c. 399, §§ 6 and 10 (now G. L., c. 167, §§ 26 and 30), the Com- 
missioner of Banks may procure expert assistance and advice in the liquida- 
tion of the assets of such bank, including the advice and assistance of counsel, 
the compensation for such service to be fixed by the Commissioner, subject 
to the approval of the Supreme Judicial Court for the proper county, and 
paid out of the assets of the bank in his hands. 

It is not expedient to attempt to define in advance under what circumstances the 
Commissioner should rely upon the Attorney-General, and under what cir- 
cumstances he may properly retain counsel; each case must rest upon its own 
facts. 

You state that, acting under the authority of St. 1910, c. 399 
(now G. L., c. 167, §§ 22 to 36, inchisive), you have taken pos- 
session of certain trust companies and have appointed Hquidating 
agents for the same. In connection with the Hquidation of said 
trust companies numerous legal questions have arisen. You 
inquire how far the need for legal assistance should be met by the 
Attorney-General and how far you can properly retain counsel, 
to be paid out of the assets of the trust companies in process of 
liquidation. 

G. L., c. 12, § 3, provides: — 

The attorney general shall appear for the commonwealth and for 
state departments, officers and commissions in all suits and other civil 
proceedings in which the commonwealth is a party or interested, or in 
which the official acts and doings of said departments, officers and com- 
missions are called in question, in all the courts of the commonwealth, 
except from criminal recognizances and bail bonds, and in such suits 
and proceedings before any other tribunal when requested by the gov- 
ernor or by the general court or either branch thereof. All such suits 
and proceedings shall be prosecuted or defended by him or under his 
direction. Writs, summonses or other processes served upon such offi- 
cers shall be forthwith transmitted by them to him. All legal services 
required by such departments, officers, commissions and commissioners 
of pilots for the harbor of Boston in matters relating to their official 



J. WESTON ALLEN, ATTORNEY-GENERAL. 313 

duties shall, except as otherwise proAdded, be rendered by the attorney- 
general or under his direction. 

It seems clear that you act as a public officer in exerting the 
powers and discharging the duties imposed upon you by St. 
1910, c. 399, now G. L., c. 167, §§ 22 to 36. Greenfield Saxings 
Bank v. Commonwealth, 211 Mass. 207; Tile Guaranty & Surety 
Co. V. Idaho, 240 U. S. 136. As to them, it is the duty of the 
Attorney-General to appear for you and to advise you. Such has 
been and is now the practice. From time to time your department 
has requested and received a number of opinions upon such 
matters. V Op. Atty.-Gen. 460, 563, 680, 688, 691 and 726. 

On the other hand, St. 1910, c. 399, authorizes the Commissioner 
to procure assistance in liquidating a bank of which he has taken 
possession, the cost of such assistance to be borne by the bank. 
Thus, sections 6 and 10 (now G. L., c. 167, §§ 26 and 30), 
provide : — 

Section 6. The bank commissioner may, under his hand and official 
seal, appoint an agent or agents to assist him in the duty of liquidation 
and distribution. The certificate of the appointment of such agent or 
agents shall be filed in the office of the bank commissioner, and a cer- 
tified copy thereof shall be filed in the office of the clerk of the supreme 
judicial court for the county in which the principal office of such bank 
is located. The bank commissioner may from time to time authorize 
such agent or agents to perform such duties connected with said liqui- 
dation and distribution as he ma)^ deem proper. The bank commis- 
sioner may procure such expert assistance and advice as he may consider 
necessary in the liquidation and distribution of the assets of such bank, 
and he may retain such of the officers or employees of the bank as he 
may deem necessary. The bank commissioner shall require from a 
special agent and from such assistants such security for the faithful 
discharge of their duty as he may deem proper. 

Section 10. The compensation of the special agents, counsel, em- 
ployees and assistants, and all expenses of supervision and liquidation 
shall be fixed by the bank commissioner, subject to the approval of the 
supreme judicial court for the county in which the principal office of 
such bank is located, on notice to such bank and, upon the certificate 
of the bank commissioner, shall be paid out of the funds of the bank 
in his hands. 



314 OPINIONS OF THE ATTORNEY-GENERAL. 

Although section 6 does not in terms authorize the Commissioner 
to retain counsel — unless the authority to " procure . . . expert 
assistance and advice" be held to include counsel — the express 
reference to payment of counsel in section 10 indicates that he 
has such power. 

Taking these provisions together, it seems plain that no cast- 
iron rule can be laid down in advance as to the point where the 
duties of the Attorney-General end and the power to retain private 
counsel begins. The powers and duties of the Commissioner of 
Banks engaged in liquidating a bank of which he has taken pos- 
session are of dual character. The entire liquidation proceeding 
may be viewed as the exercise of statutory powers by a public 
officer. On the other hand, many of the services performed by 
him closely resemble those rendered by a chancery receiver en- 
gaged in liquidating a corporation under the direction of the 
court. In many instances both attributes will coexist in the same 
duty or service. 

Under these circumstances, it seems inexpedient to attempt to 
define in advance under what circumstances the Commissioner 
should rely upon the Attorney-General, and under what circum- 
stances he may properly retain counsel to assist him or his liquidat- 
ing agents. Each case must rest upon its own facts. But practical 
considerations reinforced by existing practice suggest that the 
maximum efficiency at the least cost to both bank and Common- 
wealth may be best secured by consultation with the Attorney- 
General as to the propriety of retaining counsel and with respect 
to the counsel to be employed for any particular duties. 

The employment of different general counsel by the several 
agents for the purpose of obtaining legal advice with respect to 
legal questions involved in the liquidation of these companies, 
as well as the employment of special counsel in particular cases, 
may result in needless expenditure of the depositors' money when 
these counsel are acting independently and without co-operation 
with the Attorney-General. As I think that this course may at 
any time bring criticism upon your department, I am writing 
you to confirm the position which I took upon this matter when it 
first came to my attention in May of the current year. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 315 



County Accounts — Additional Compensation to Persons 
RECEIVING Salaries from Counties. 

Under G. L., c. 262, §§ 50 and 53, a police officer is not entitled to a fee for testi- 
fying as a witness in a criminal case during the time for which he receives a 
salary or allowance; but if he is employed and paid for night work, and is 
called into court during the day, he should be paid his fees; and if he attends 
as a witness at a place other than his residence, he may be allowed a witness 
fee instead of his expenses. 

Whether a regular police officer is entitled to additional compensation for services 
in bringing to land a human body found in any of the harbors, rivers or waters 
of the Commonwealth, under G. L., c. 38, § 17, depends upon whether he is 
acting within the scope of his duties, on the one hand, or in violation of duty, 
on the other hand. 

Where a probation officer is appointed by the court to act as temporary clerk, or a 
clerk of court is appointed by the court to act as probation officer, additional 
salaries are properly paid. 

You have asked my opinion with respect to certain questions TotheCom- 
arising upon the examination of county accounts. These ques- corporations 

. , p 1 T • 1 • and Taxation. 

tions relate to the payment or additional compensation to persons 1921 



receiving salaries from counties. Therefore, the statute which 
prohibits a person from receiving at the same time more than 
one salary from the treasury of the Commonwealth (G. L., c. 30, 
§ 21) has no application. The question in each case will de- 
pend for its answer upon some statute or upon general considera- 
tions involving incompatibility of office or employment. The 
questions are as follows : — 

1. You ask whether a regular or special police officer who happens to 
be on patrol duty at night and is called upon to attend court as a witness 
for the Commonwealth is entitled to a witness fee. 

The answer to this question depends upon a construction of 
G. L., c. 262, §§ 50 and 53 (St. 1890, c. 440, §§ 1, 6). Section 50 
provides, in part, as follows : — 

No officer in attendance on any court, sheriflf; deputy sheriff, jailer, 
constable, city marshal or other police officer who receives a salary or 
an allowance by the day or hour from the commonwealth or from a 
county, city or town shall, except as otherwise hereinafter provided, be 
paid any fee or extra compensation for official services performed by 
him in any criminal case; or for aid rendered to another officer; or for 



October 29. 



316 OPINIONS OF THE ATTORNEY-GENERAL. 

testifying as a witness in a criminal case during the time for which he 
receives such salary or allowance; or for services or as a witness at an 
autopsy or inquest; or in proceedings for commitment of insane per- 
sons; but his expenses, necessarily and actually incurred, and actually 
disbursed by him in a criminal case tried in the superior court, shall, 
except as provided in section fifty-two, be paid by the county where 
the trial is held, or in a criminal case tried in a district court or before 
a trial justice, by the town where the crime was committed. 

Section 53 is, in part, as follows: — 

Any officer named in section fifty who attends as a witness at a place 
other than his residence shall, instead of his expenses, be allowed the 
witness fee in the court or before the trial justice where he testifies. 
A police officer on duty at night who attends the superior court as a 
witness for the commonwealth shall be paid the same fees as any other 
witness. A police officer who is a witness for the commonwealth, and 
who under the direction of the district attorney aids in securing the 
attendance of other witnesses, may receive, instead of his expenses, 
witness fees for one da5'^'s attendance. 

In Sackett v. Sanborn, 205 Mass. 110, 112, the application of 
corresponding provisions in the Revised Laws (R. L., c. 204, 
§§•42, 44) was considered. The plaintiff, who was chief of pohce 
of Norw^ood, sued to recover witness fees and travel for attend- 
ance as a witness at the court in Dedham in various criminal 
cases. It appeared that by the town by-laws it was the plain- 
tiff's duty to be prosecuting officer and have charge of all com- 
plaints. The court held that inasmuch as the plaintiff' was 
attending court in the performance of his official duties he came 
under the provisions of the former section, and that the latter 
section was not applicable. The opinion contains the following 
general statement of the object of the statute: — 

The object of the statute is to provide that officers who receive com- 
pensation for their services by salary or otherwise, and attend court in 
the discharge of duties which they are thus paid to perform, shall not 
receive further compensation by way of witness fees, but that any ex- 
penses necessaril}'^ and actually incurred or disbursed by them in the 
performance of such duties in attending court in criminal cases shall be 
reimbursed to them. If they attend court, but not in the performance 
of the duties for which they are paid, at a place other than their resi- 



J. WESTON ALLEN, ATTORNEY-GENERAL. 317 

dence, then, according to the provision quoted above . . . , instead of 
their expenses they are to be allowed witness fees. 

The same provisions were also considered by a former At- 
torney-General. In two opinions (I Op. Atty.-Gen. 594 and 
603) he held that testifying in court as a witness is not an official 
service, but that by the provisions of the statute constables and 
police officers are prohibited from receiving fees for testifying if, 
during the time of such attendance, they are on duty as officers. 
He said (I Op. Atty.-Gen. 594, 595) : — 

There are, for example, many constables and police officers who are 
emploj^ed and paid for night work. If such officers were called into 
court during the day, it was the intention of the Legislature that they 
should be paid their fees for travel and attendance as witnesses, such 
service being no part of their official duties, and not being performed 
during the time of their employment. 

With respect to witness fees, the rule is stated clearly enough 
by the sections above quoted. An officer such as is described is 
not to be paid a fee for testifying as a witness in a criminal ease 
during the time for which he receives a salary or allowance. If 
he is employed and paid for night work, and is called into court 
during the day, according to the opinion referred to he should 
be paid his fees, such service being no part of his official duties 
and not being performed during the time of his employment. 
If any such officer attends as a witness at a place other than his 
residence, he may be allowed a witness fee instead of his expenses, 
by the express provisions of G. L., c. 262, § 53. 

2. You ask whether regular police officers are entitled to additional 
compensation for services in bringing to land a human body found in 
any of the harbors, rivers or waters of the Commonwealth, under G. L., 
c. 38, § 17. 

The rule is clearly settled that a peace officer is not entitled to 
extra compensation, such as a reward, for services performed in 
the course of his duties. Pool v. Boston, 5 Gush. 219; Davies 
V. Burns, 5 Allen, 349; Hartley v. GranviUe, 216 Mass. 38, 40. 
It would seem that this rule should apply where a reward is au- 



318 OPINIONS OF THE ATTORNEY-GENERAL. 

thorized by an act of the Legislature, in the absence of an ex- 
press provision that the reward should be payable to peace officers 
as well as others, although in United States v. Matthews, 173 
U. S. 381, a majority of the court appear to have held the con- 
trary. But a contract or reward for services rendered by a 
public officer outside and not inconsistent with his official duties 
is enforceable. Studley v. Ballard, 169 Mass. 295, 296; Hartley 
v. Granville, 216 Mass. 38, 41. 

The duties of police officers are largely defined by ordinance 
or town by-law. Their general duties, like those of constables, 
are to be vigilant to preserve the peace, to prevent the commis- 
sion of crime, to make arrests and to procure warrants. Hartley 
V. Graiiville, 216 Mass. 38, 39. In the case just cited a distinction 
is said to exist between the duties of constables in country com- 
munities and those of members of an organized police force, in 
that the former are not expected to devote a considerable por- 
tion of their time to the work of their office, while the latter 
have regular hours during which they are on duty. 

The right of a regular police officer to claim the compensation 
provided by G. L., c. 38, § 17, depends entirely upon the scope 
of his duties and the strictness of the requirement with respect 
to the time to be devoted to such duties. If the duty of a police 
officer includes the rescuing of human bodies from the water, 
clearly he cannot receive extra compensation for such service. 
If such an act is outside the scope of his duties, and if it is a 
violation of his duty to perform such an act w^hile on duty, the 
two services are inconsistent, and again, in my opinion, he can- 
not recover extra compensation. If, however, the performing of 
such an act is outside the scope of his duty, and is properly per- 
formed by him at the time of performance, then, in my opinion, 
he may recover. It is for you to determine in any particular 
case, under the principle which I have stated, w^hether the service 
rendered was or was not one for which the officer was entitled to 
have extra compensation. Cf. V Op. Atty.-Gen. 697. 

3. You ask whether a probation officer receiving a stated annual 
salary may be designated, in case of the illness or vacation of the clerk, 
to act as clerk pro tern and be paid as both probation officer and clerk; 



J. WESTON ALLEN, ATTORNEY-GENERAL. 319 

and also whether a clerk of court may be appointed to act as probation 
officer, in case of the illness or vacation of the probation officer, and 
receive an additional salary as probation officer. 

Temporary clerks and assistant clerks are appointed by the 
courts. G. L., c. 221, §§ 8-10. The compensation of a tem- 
porary clerk is fixed by the court appointing him, and the com- 
pensation of each temporary assistant clerk is the same as the 
assistant clerk for whom he is acting. G. L., c. 221, § 100. 

Appointments of probation officers, both permanent and tem- 
porary, also are made by the courts, who to a large extent define 
their duties and fix their compensation, subject, however, except 
in the case of appointments by the Superior Court, to approval 
by the county commissioners. G. L., c. 276, §§ 83, 85, 89. Cathe- 
ron V. Countij of Suffolk, 227 Mass. 598. 

Where an officer occupies two offices which are not incompatible, 
he is entitled to the compensation attached to both offices. United 
States V. Saunders, 120 U. S. 126. 

Any question as to the propriety of an appointment to either 
office would involve a consideration of the action of the judicial 
branch of the government, which it is improper for me to attempt. 
The fact that the appointment is made by the court in accordance 
with statutory provisions is a sufficient determination of the fact 
that in that particular case, at least, the duties to be performed are 
not inconsistent and may be performed by one person. The 
compensation to be paid is also fixed either by statute or by the 
court, with or without the approval of the county commissioners, 
in such a manner that it is not open to revision. V Op. Atty.-Gen. 
186. I advise you, therefore, that in such cases the additional 
salaries are properly paid. 



320 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Pilgrim 

Tercentenary 

Commission. 

1921 
November 3. 



Pilgrim Tercentenary Commission — Surplus Material — 
Sale — Disposition of Proceeds. 

Under Spec. St. 1919, c. 187, the Pilgrim Tercentenary Commission has the p)ower 
by sale to dispose of such property and equipment as cannot be utilized, but 
the money received by the commission through the sale of such surplus prop- 
erty must be paid into the treasury of the Commonwealth, where it becomes 
part of the general fund or ordinary revenue of the Commonwealth, and as 
such can be expended only in the manner provided by G. L., c. 29, § 18. 

My opinion is requested on a question arising out of the follow- 
ing situation : — 

The commission will receive a certain sum as payment for 
buildings demolished on the water front at Plymouth, and will 
also receive other sums for the sale of surplus curbing and other 
material. You state that it is desired to use this money as an 
addition to the money already appropriated by the Legislature 
to do the work at Plymouth. You ask as to whether or not the 
commission may legally and properly utilize such receipts for its 
work. 

The general powers of the commission in relation to work to 
be done at Plymouth are found in Spec. St. 1919, c. 187, and while 
in that act there is no special provision authorizing the sale of 
property by the commission, there can be no question but that, 
under its general powers, the commission has the right to dispose 
of such property and equipment as cannot be utilized by it. Such 
a right is incidental to and is an essential part of the general duties 
of the commission. This right to sell surplus property, however, 
does not confer upon the commission the right to expend the 
money received from the sale of such property. 

Mass. Const. Amend., art. LXIII, § 1, provides as follows: — 

Collection of Revenue. — All money received on account of the com- 
monwealth from any source whatsoever shall be paid into the treasury 
thereof. 



The money received by the commission through sales is subject, 
in my opinion, to this constitutional provision, and when paid 
into the treasury of the Commonwealth it becomes part of the 



J. WESTON ALLEN, ATTORNEY-GENERAL. 321 

general fund or ordinary revenue of the Commonwealth, and as 
such can be expended only in the manner provided by G. L., 
c. 29, § 18, to wit, by "a warrant from the governor drawn in 
accordance with an appropriation then in effect, and after the 
demand or account to be paid has been certified by the state 
auditor." 

The provisions of Spec. St. 1919, c. 187, clearly indicate that 
it was intended by the Legislature that the money to be expended 
for the purposes of the act was to be made up by the amount 
available by appropriation by the General Court and by the sums 
received by gift, grant or devise under the provisions of section 2 
of said chapter 187. The language found in section 10 of said 
chapter 187, to the effect that "it is the purpose and understanding 
of the general court that the sum of two hundred and fifty thou- 
sand dollars is the sum total of all appropriations which the com- 
monwealth shall make for the purposes of this act," is a strong 
indication, in my judgment, that it was not intended that any 
money received incidentally by the commission, through the sale 
of surplus property, was to be available in addition to the money 
appropriated, but that such receipts from sales should be paid 
into the treasury of the Commonwealth under the constitutional 
requirement set forth above. 



Legal Holiday — Governor — Proclamation — Legislative 

Power. 

The establishment of a legal holiday calls for the exercise of legislative power, 
and the Governor has no power to establish a legal holiday by proclamation. 

You ask my opinion whether the Governor of Massachusetts to the 
has the right to establish a legal holiday by proclamation, with 1921 ' 

1 ' ' 1 1 1 !• 1 November 4. 

particular reference to making November 11a legal holiday. 

Under the Constitution of Massachusetts the Governor has 
authority, with the Council, to "hold and keep a council, for the 
ordering and directing the affairs of the commonwealth, agreeably 
to the constitution and the laws of the land." Const, pt. 2d, 
c. II, § I, art. IV. 



322 OPINIONS OF THE ATTORNEY-GENERAL. 

Legislative power is conferred upon the General Court "from 
time to time to make, ordain, and establish, all manner of whole- 
some and reasonable orders, laws, statutes, and ordinances, di- 
rections and instructions, either with penalties or without; so 
as the same be not repugnant or contrary to this constitution, 
as they shall judge to be for the good and welfare of this com- 
monwealth, and for the government and ordering thereof, and of 
the subjects of the same, and for the necessary support and de- 
fence of the government thereof." Const, pt. 2d, c. I, § II, art. 
IV. 

In the Public Statutes there was no definition of the term " legal 
holiday." There was a provision enumerating certain days on 
which the General Court should hold no session and the public 
offices should be closed (P. S., c. 2, § 34); and another provision 
which referred to a "Fast or Thanksgiving day appointed or 
recommended by the Governor of the Commonwealth or by the 
President of the United States." That provision is P. S., c. 77, 
§ 8, and is, in part, as follows: — 

Bills of exchange, drafts, promissory notes, and contracts, due and 
payable or to be performed on a Sunday, on a Fast or Thanksgi\ang 
day appointed or recommended by the governor of the commonwealth 
or by the President of the United States, on Christmas day, on the 
twentj^-second daj' of February, on the thirtieth day of May, on the 
fourth daj'' of July, or on the following day when either of the three 
days last mentioned occurs on a Sunday, shall be pa.vable or perform- 
able upon the business day next preceding said days; . . . 

This provision was held by a former Attorney -General to con- 
tain a sufficient implication of authority in the Governor to appoint 
a day of fasting or thanksgi^"ing at his discretion. I Op. Atty.- 
Gen. 66. The statute was, however, superseded by the statutes 
hereinafter mentioned. 

In 1887 the Legislature passed an act making the first Monday 
of September a legal public holiday "in the same manner as 
Thanksgiving, Fast and Christmas days, the twenty-second of 
February, the thirtieth day of May and the fourth da}' of July, 
are now by law made public holidays" (St. 1887, c. 263); and in 



J. WESTON ALLEN, ATTORNEY -GENERAL. 323 

1894 Fast Day was abolished and the nineteenth day of April in 
each year was made a legal public holiday. St. 1894, c. 130. 

In the same year and in the following year statutes were passed, 
the effect of which was to repeal those provisions of P. S., c. 77, 
§ 8, which gave any discretion to the Governor of the Common- 
wealth or the President of the United States to declare a holiday 
which should affect the time of payment or performance of negoti- 
able instruments and contracts. St. 1894, c. 333, § 427; St. 1895, 
c. 201. 

In the year 1919 the General Court by statute authorized the 
Governor to designate a holiday for proper observance of the 
return of Massachusetts soldiers, sailors and marines, providing 
that the day so designated should be a holiday for the year only 
in which it occurred. Said statute (Gen. St. 1919, c. 126, § 1) is 
as follows : — 

The governor is hereby authorized to designate by proclamation a 
day which in his judgment niaj' appropriately be set apart for the gen- 
eral observance and celebration throughout the commonwealth of the 
home-coming of Massachusetts soldiers, sailors and marines, and the 
day so designated shall, for the year only in which it occurs, be a holiday 
within the meaning of the ninth clause of section five of chapter eight 
of the Revised Laws and the amendments thereof, and all the public 
offices shall be closed on that day. 

In G. L., c. 4, § 7, cl. 18, the General Court has now defined the 
term "legal holiday" as follows: — 

"Legal holiday" shall include .January first, February twentj^-second, 
April nineteenth, May thirtieth, July fourth, the first Monday of Sep- 
tember, October twelfth, Thanksgiving day and Christmas day, or the 
day following when any of the five days first mentioned, October twelfth 
or Christmas day occurs on Sunday, and the public offices shall be closed 
on all of said days. 

There are other provisions in the statutes for the closing of 
the courts and offices of the State government and regulating the 
effect of holidays on various transactions; but there is nothing 
providing for the proclamation of other holidays by the executive 
branch of the government. 



324 



OPINIONS OF THE ATTORNEY-GENERAL. 



It is my opinion that the estabhshment of a legal holiday, 
affecting in any respect legal rights, is an act calling for the exercise 
of legislative power, that this power has been exercised by the 
General Court in a way which now gives no power over the subject 
to the executive branch of the government, and that the General 
Court, by the statute of 1919, authorizing the Governor to desig- 
nate a holiday to celebrate the home-coming of Massachusetts 
soldiers, sailors and marines for one year only, has indicated the 
intention that there should be no holiday for such an occasion 
in other years, or any holiday without legislative enactment. 

I must advise you, therefore, that, in my opinion, the Governor 
or the Governor and Council have no power to establish a legal 
holiday by proclamation. I do not intend to suggest that the 
Governor may not by proclamation request the people to observe 
any particular day in a particular manner. The question whether 
the Congress or the President of the United States may establish 
a legal holiday effective throughout the United States, and whether 
Your Excellency may join with the Governors of other States in 
proclaiming such a holiday at the request of Congress or of the 
President, is not before me; and on that matter I express no 
opinion. 

Teachers' Retirement System — Teachers' Pensions — 
Basis of Reimbursement paid to Cities and Towns. 



To the 
Teachers' 
Retirement 
Board. 

1921 
November 4. 



In view of St. 1921, c. 460, the reimbursement paid to cities and towns on account 
of pensions paid to teachers retired by cities and towns under G. L., c. 32, 
§ 16, should be based upon the pension factors established by G. L., c. 32, 
§ 10, from and after Aug. 26, 1921, the date when said St. 1921, c. 460, became 
effective. 

You have requested my opinion as to whether or not the re- 
imbursement paid to cities and towns in respect of pensions paid 
by them to teachers retired prior to May 12, 1920, should be 
based upon the new pension factors established by St. 1920, 
c. 335 (now G. L., c. 32, § 10), from and after Aug. 26, 1921, 
the date when St. 1921, c. 460, became effective. 

St. 1908, c. 498, authorized cities and towns which should 
accept the act to establish a non-contributory system of pen- 



J. WESTON ALLEN, ATTORNEY-GENERAL. 325 

sions for the retirement of teachers in its public schools. St. 
1908, c. 589, as amended by St. 1910, c. 617, imposed upon Boston 
a non-contributory system of pensions for teachers in its public 
schools. St. 1913, c. 832 (now, as amended, G. L., c. 32), estab- 
lished a State-wide retirement association, effective July 1, 
1914, for all teachers employed by a board of trustees or school 
committee in a public day school within the Commonwealth. 
Under St. 1913, c. 832, § 6, cl. 4 (now, as amended, G. L., c. 32, 
§ 10, cl. 4), payment to a teacher retired thereunder consisted 
of (1) an annuity based upon contributions by said teacher; and 
(2) a non-contributory pension of equal amount paid out of the 
treasury of the Commonwealth. St. 1913, c. 832, § 13 (now 
G. L., c. 32, § 16), provided, in part: — 

(1) Whenever, after the first clay of July, nineteen hundred and four- 
teen, a town or city retires a teacher who is not eligible to a pension 
under the provisions of section six, paragraph (4) of this act, and pays 
to such teacher a pension in accordance with chapter four hundred and 
ninety-eight of the acts of the year nineteen hundred and eight, or chap- 
ter five hundred and eighty-nine of the acts of the year nineteen hun- 
dred and eight, as amended by chapter six hundred and seventeen of 
the acts of the year nineteen hundred and ten, and the school committee 
of said town or city certifies under oath to the retirement board to the 
amount of said pension, said town or city shall be reimbursed therefor 
annually by the commonwealth: provided, that no such reimbursement 
shall be in excess of the amount, as determined by the retirement board, 
to which said teacher would have been entitled as a pension, had he 
become a member of the retirement association under the provisions of 
section three, paragraph (2) of this act. 

It will be noted that under this section the reimbursement is 
confined to teachers retired after July 1, 1914, under the city or 
town system, who are ineligible to retirement under the State 
system, and must not exceed the amount of the pension (exclud- 
ing the annuity) which said teacher would have received if he 
had been retired under the State system. The amount of such 
pension is equal to the annuity which such teacher would have 
received if he had joined the State Retirement Association and 
had made the required contribution. 
St. 1920, c. 335, which took effect May 12, 1920, and is now 



326 OPINIONS OF THE ATTORNEY-GENERAL. 

continued in G. L., c. .32, § 10, modified the manner in which 
the annuity payable upon retirement under the State system 
should be determined, and therefore affected the amount of the 
equal pension paid out of the treasury of the Commonwealth. 
But this act applied only to teachers retired under the State 
system after the date when it took effect. It did not affect the 
amount of annuity, and so the amount of pension paid to teachers 
previously retired under that system, and therefore did not 
affect the amount of reimbursement payable to cities and towns 
on account of pensions paid by them to teachers previously 
retired under the city or town system. St. 1921, c. 460, which 
took effect on Aug. 26, 1921, provides: — 

The provisions of section ten of chapter thirty-two of the General 
Laws, shall hereafter apply to all members of the state teachers' re- 
tirement association irrespective of the date of retirement; provided, 
that in no case shall the present pension of a retired teacher be reduced. 

This act extended the benefits of St. 1920, c. 335, now G. L., 
c. 32, § 10, to teachers retired by the State association previous 
to May 12, 1920. On and after Aug. 26, 1921, their annuities, 
and consequently their pensions, are determined according to 
the new plan, subject, of course, to the proviso that no annuity 
or pension shall be thereby diminished. A like benefit would 
have accrued to teachers retired by the cities and towns since 
July 1, 1914, under the acts specified in St. 1913, c. 832, § 13, 
now G. L., c. 32, § 16, if such teachers had been members of the 
State Retirement Association. I am therefore of opinion that 
the limit of reimbursement to cities and towns in respect of 
teachers so retired is correspondingly increased, and that on and 
after Aug. 26, 1921, such reimbursement is to be calculated in 
accordance with the factors established by St. 1920, c. 335, now 
G. L., c. 32, § 10. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 327 



Harvard College — Power to coni'er Academic Degrees. 

Mass. Const., pt. 2d, c. V, § I, art. I, ratified and confirmed the power of the 
President and Fellows of Harvard College to grant academic degrees of every 
kind. 

You state that there is no record in your department of any Tothe 
express grant of power to the President and Fellows of Harvard " 1921" 



College to confer academic degrees, and inquire whether they 
possess this power. 

There can be no doubt that Harvard College granted academic 
degrees long prior to the adoption of the Constitution in 1780. 
I Quincy, History of Harvard, pp. 71, 589. Indeed, the degree 
of doctor of laws was conferred on George Washington in 1776. 
Mass. Const., pt. 2d, c. V, § I, art. I, provides as follows: — 

Whereas our wise and pious ancestors, so early as the year one thou- 
sand six hundred and thirty-six, laid the foundation of Harvard Col- 
lege, in which university many persons of great eminence have, bj'' the 
blessing of God, been initiated in those arts and sciences which qualified 
them for public employments, both in church and state; and whereas 
the encouragement of arts and sciences, and all good literature, tends 
to the honor of God, che advantage of the Christian religion, and the 
great benefit of this and the other United States of America, — it is 
declared, that the President and Fellows of Harvard College, in 
their corporate capacity, and their successors in that capacity, their 
officers and servants, shall have, hold, use, exercise, and enjoy, all the 
powers, authorities, rights, liberties, privileges, immunities, and fran- 
chises, which tl:ey now have, or are entitled to have, hold, use, exercise, 
and enjoy and the same are hereby ratified and confirmed unto them, 
the said president and fellows of Harvard College, and to their succes- 
sors, and to their officers and servants, respectively, forever. 

This provision ratified, confirmed and continued in force the 
power to grant degrees theretofore exercised and possessed. It 
has been exercised ever since publicly and notoriously, without 
question from any public authority. I therefore advise you 
that, in my opinion, the President and Fellows of Harvard Col- 
lege, in their corporate capacity, are authorized by law to confer 
all academic degrees. 



November 10. 



328 OPINIONS OF THE ATTORNEY-GENERAL. 



Records and Papers — Certification — What may be cer- 
tified BY the Secretary of the Commonwealth. 

A written opinion given by the Attorney-General to the Secretary of the Com- 
monwealth is a "paper in his department," within the meaning of G. L., c. 9, 
§ 11, copies of which may be certified and furnished by the Secretary in the 
manner prescribed by law. 

Where an officer is authorized by law to furnish a certified copy of a record or 
paper in his custody, his certificate that a fact is established bj' such record 
or paper cannot be substituted for the copy so authorized. 

Swretiry. You inquire whether you can properly certify that the Presi- 

Novemberi2. dcnt and FcIlows of Harvard College are authorized by law to 
confer academic degrees, including that of bachelor of laws. 
G. L., c. 9, § 11, provides as follows: — 

The state secretary shall have the custody of the great seal of the 
commonwealth; and copies of records and papers in his department, 
certified by him and authenticated by said seal, shall be evidence like 
the originals. 

Under date of Nov. 10, 1921, I advised you that, in my opinion, 
the President and Fellows of Harvard College, in their corporate 
capacity, are authorized by law to confer academic degrees of 
every kind. This opinion is a "paper" in your department, 
within the meaning of the above section. A copy thereof, certi- 
fied by you and authenticated with the great seal, would be evi- 
dence of such authority to the same extent as the original. In 
my opinion, you are authorized to furnish such copies under the 
conditions prescribed by law. 

You are not, however, authorized to certify to the fact, as 
distinguished from furnishing a copy in the manner prescribed 
by G. L., c. 9, § 11. Commonwealth v. Richardson, 142 Mass. 71, 
74; Commonwealth v. Kozlowsky, 238 Mass. 379. Where a public 
officer is authorized by law to furnish a certified copy of a record 
or document in his custody, his certificate that a fact is established 
by such record or document cannot be substituted for the copy so 
authorized. Oakes v. Hill, 14 Pick. 442, 448; Rabbins v. Town- 
send, 20 Pick. 345, 350; IVayland v. Ware, 109 Mass. 248, 250; 
Hanson v. Smdh Scituate, 115 Mass. 336, 342; Franklin Savings 



J. WESTON ALLEN, ATTORNEY-GENERAL. 329 

Bank V. Framingham, 212 Mass. 92, 94. The reason is that the 
record or document speaks for itself through the certified copy, 
while the officer may be mistaken as to the proper conclusion to 
be drawn from it. Hanson v. South Scituate, 115 Mass. 336, 342. 
Hence a certificate that it appears by the records in your depart- 
ment that the President and Fellows of Harvard College are au- 
thorized by law to confer academic degrees of every kind would 
not be competent as a substitute for a certified copy of the paper 
which establishes that authority. Commonwealth v. Richardson, 
142 Mass. 71. 

Garages — Gasoline — Permits — City of Boston — Fire 

Marshal. 

Under St. 1913, c. 577, as amended by St. 1914, c. 119, authority to issue permits 
for the erection of garages in the city of Boston is vested exclusively in the 
street commissioners of said city, whose action in granting or refusing a permit 
is not subject to review by the Department of Public Safety of the Common- 
wealth. 

Under G. L., c. 148, § 30, authority to issue permits for the storage of gasoline 
within the metropolitan district is vested in the State Fire Marshal. 

Under G. L., c. 148, § 31, the State Fire Marshal may delegate the power vested 
in him by section 30 to any designated officer in any city or town in the said 
district, but subject to the appeals provided for in section 45. 

Even though the State Fire Marshal, acting under G. L., c. 148, § 31, delegates 
to an appropriate officer the powers vested in him by section 30, he may, in 
his discretion, take original jurisdiction of any question arising under section 
30, and, if he does so, the validity of the delegation, the action of the officer 
thereunder, and the propriety of any appeal therefrom become immaterial. 

You ask my opinion upon the following question : — To the Com- 

"^ ^ ^ ox missioner of 

Public Safety. 

On Aug. 3, 1921, the company petitioned the street commission- ^^^ i92i 

ers of Boston for a license to erect, maintain and conduct a garage, and 
also a license for the keeping and storage of gasoline, not exceeding 
1,000 gallons in tank underground, in a building in the Charlestown 
district of the city of Boston. 

After due notice and hearing held on Aug. 24, 1921, the licenses were 
granted Sept. 13, 1921. 

The mayor, while he had up to that time signed all licenses of this 
nature granted by said street commissioners, requested the opinion of 
the law department of the city of Boston upon che question whether it 
is his duty to approve or disapprove the granting of a permit by the 
board of street commissioners for the erection and maintenance of a 
garage within the limits of the city of Boston. 



November 16. 



330 OPINIONS OF THE ATTORNEY-GENERAL. 

The law department of the city of Boston gave an opinion to the 
mayor as follows : — 

I am of the opinion that the power to grant peimits for such purposes is solely 
and exclusively within the jurisdiction of the street commissioners, and is not 
subject to your control. 

Basing his action on this opinion, as I understand, the maj'or declined 
to approve the permit to erect said garage and the license to keep or 
store 1,000 gallons of gasoline, as granted by the board of street com- 
missioners to said company. 

A designation was made by the Fire Prevention Commissioner, in 
accordance with St. 1914, c. 795. §§ 3 and 4, in the following words: — 

I, .John A. O'Keefe, duly appointed and qualified Fire Prevention Commissioner 
for the metropolitan district of Massachusetts, by virtue of the authority vested 
in me by section four of chapter seven hundred and ninety-five of the acts of the 
year nineteen hundred and fourteen, do hereby delegate to the honorable mayor 
and board of street commissioners of the city of Boston the following powers, con- 
ferred on me by said chapter, to be exercised by them within the city of Boston, 
in accordance with the rules and regulations now established or hereafter to be 
established by the Fire Prevention Commissioner in reference severally to said 
powers. This delegation of power shall continue in force until a revocation thereof 
shall have been filed with the city clerk of said city of Boston. 

1. The right to issue licenses for all garages in the city of Boston in which one 
or more automobiles using gasoline are kept, stored or repaired. 

2. The right to license the manufacture, keeping or sale of volatile inflammable 
fluids in quantity exceeding one hundred and thirty gallons, or for other than 
private use. 

An appeal was made to the State Fire Marshal from the decision of 
the street commissioners, and on Oct. 28, 1921, a hearing was given by 
the State Fire Marshal at the State House on this appeal. Exceptions 
were made to the Fire Marshal's proceeding with the hearing, on the 
claim that the permit and license did not have the approval of the 
mayor, and therefore the action of the street commissioners was not 
subject to an appeal; and it is upon this question that I respectfully 
request the opinion of the Attornej'-General. 

Was the permit and license as issued by the street commissioners to 
the company valid without the approval of the mayor in writing? 

The permit to erect the garage in question and the permit to 
store gasoline therein are wholly distinct from each other, and are 
governed by different statutes. V Op. Atty.-Gen. 718. I there- 
fore proceed to consider each separately. 

1 . Tlie Permit to erect the Garage. — Permits for the erection of 



J. WESTON ALLEN, ATTORNEY -GENERAL. 331 

garages in the city of Boston are governed by St. 1913, c. 577, as 
amended by St. 1914, c. 119, which provides, in part, as follows: — 

In the citj^ of Boston no building shall be erected for, or maintained 
as a garage for the storage, keeping or care of automobiles until the 
issue of a permit therefor by the board of street commissioners of the 
city after notice and a public hearing upon an application filed with 
said board. . . . 

The city law department, in an opinion which you furnish me, has 
advised the mayor that under said statutes authority to issue 
permits for the erection of garages in the city of Boston is vested 
exclusively in the street commissioners, and that the mayor has 
no duty in respect to or power over such issue. I concur in this 
conclusion. But if this power be vested exclusively in the street 
commissioners, it follows that the issue or refusal of such a permit 
is not a matter which is subject to review by the Department of 
Public Safety. Practical considerations may render it advisable 
for your department to ascertain, before issuing a license to store 
gasoline, whether such a permit to erect the garage has been issued. 
But these considerations confer no authority to review or reverse 
the action of the street commissioners in granting or withholding 
such a permit. No question of the power of the Department of 
Public Safety to regulate such garage or the construction thereof 
as a fire risk is before me, and upon that point I express no opinion. 
2. The Permit to store Gasoline. — St. 1914, c. 795, created 
a Fire Prevention Commissioner for the metropolitan district. 
Sections 3 and 5, as amended and now codified in G. L., c. 148, 
§ 30, provide: — 

The marshal shall have within the metropolitan district the powers 
given bj^ sections ten, thirteen, fourteen, twenty, twenty-one and 
twenty-two to license persons or premises, or to grant permits for, or 
to inspect or regulate, the keeping, storage, use, manufacture, sale, 
handhng, transportation or other disposition of gunpowder, dynamite, 
nitroglycerine, camphine or any similar fluids or compounds, crude 
petroleum or anj^ of its products, or any explosive or inflammable fluids 
or compounds, tablets, torpedoes, rockets, toy pistols, fireworks, fire- 
crackers, or any other explosives, and the use of engines and furnaces 
as described in section one hundred and fifteen of chapter one hundred 



332 OPINIONS OF THE ATTORNEY-GENERAL. 

and forty; provided, that the city council of a city or the selectmen of 
a town may disapprove the granting of such a license or permit, and 
upon such disapproval the permit or license shall be refused. In Boston 
certificates of renewal of licenses as provided in section fourteen shall 
be filed annually for registration with the fire commissioner, accom- 
panied by a fee of one dollar. 

Section 4, as now codified in G. L., c. 148, § 31, provides: — 

The marshal may delegate the granting and issuing of anj^ licenses or 
permits authorized by sections thirty' to fifty-one, inclusive, or the carry- 
ing out of any lawful rule, order or regulation of the department, or any 
inspection required under said sections, to the head of the fire depart- 
ment or to anj' other designated officer in any city or toAvn in the met- 
ropolitan district. 

Section 18, now G. L., c. 148, § 45, provides: — 

The marshal shall hear and determine all appeals from the acts and 
decisions of the heads of fire departments and other persons acting or 
purporting to act under his authority, done or made or purporting to 
be done or made under the provisions of sections thirty to fifty-one, in- 
clusive, and shall make all necessary and proper orders thereon. Any 
person aggrieved by any such action of the head of a fire department or 
other person may appeal to the marshal. 

Gen. St. 1919, c. 350, §§ 99, 101, 104, abolished the said office 
of Fire Prevention Commissioner and vested his powers in the 
State Fire Marshal, who is an official of the Department of Public 
Safety created by that act. See G. L., cc. 22 and 48. 

Taking these sections together, it is plain that power to grant 
permits to keep and store gasoline is vested in the first instance 
in the Fire Marshal, but subject to review by the Commissioner. 
V Op. Atty.-Gen. 454. He may, however, delegate this power, 
subject to the provisions of G. L., c. 148, § 30. If he does so 
delegate, section 45 confers a right of appeal to the Fire Mar- 
shal. V Op. Atty.-Gen. 718. But such delegation does not 
depri\'e the Fire Marshal of power, if he sees fit, to pass on the 
question as if no delegation had been made. He may, of course, 
insist that the question be passed on in the first instance by the 
officer or board to whom he has made such delegation, and may 



J. WESTON ALLEN, ATTORNEY-GENERAL. 333 

decline to consider a premature appeal taken before such officer 
or board has fully passed on the matter. But when the ques- 
tion comes before him, either upon an appeal duly taken or be- 
cause he sees fit to take jurisdiction without a sufficient appeal, 
he exercises an original jurisdiction vested in him by the statute, 
and not simply an appellate jurisdiction. In either case, the 
order made by him has the same force and effect as if he had 
determined the question in the first instance, and renders imma- 
terial any question as to the propriety of the delegation or the 
sufficiency of the appeal. I therefore advise you that, in the 
instant case, an order of the Fire Marshal would not be invalid 
either because the mayor failed to act with the street commis- 
sioners upon this permit or because of any insufficiency in the 
appeal. 

While this view renders it unnecessary to determine whether 
Commissioner O'Keefe delegated the power in question to the 
mayor and the street commissioners as a single board, in which 
a majority of such board would control, or to each independ- 
ently, so that no effective action could be taken without the con- 
currence of both the mayor and a majority of the street com- 
missioners, it is evident that such a question might be presented 
if the Fire Marshal should decline to take jurisdiction of an ap- 
peal to him, prosecuted as of right, under circumstances similar 
to the instant case. In my opinion, this question should be 
eliminated by a new delegation of power. The terms of that 
new delegation are for the Fire Marshal to determine, subject to 
your approval. 



334 OPINIONS OF THE ATTORNEY-GENERAL. 



Civil Service — Assistant Registers of Probate — Clerks 
IN THE Registries or Probate for Suffolk and Middle- 
sex Counties — Stenographers — Clerical Assistants. 

Appointments to the positions of assistant registers in the several registries of 
probate are not to be made under the regulations of the Department of Civil 
Service. 

The position of clerk of the Suffolk registry of probate, under the provisions of 
G. L., c. 217, § 28, is not to be filled under civil service regulations. 

The position of clerk of the Middlesex registry of probate, under G. L., c. 217, 
§ 29, is to be filled under civil service regulations. 

The Commonwealth, under St. 1921, C..42, having assumed the payment of the 
salaries of certain stenographers and other clerical assistants in the several 
registries of probate, appointments to these positions, in the future, must 
be made in accordance with civil service rules and regulations. 

To the Com- Yoii havc requested mv opinion as to whether any appoint- 

missioner of 

Civii^service. ments that may be made to the positions of assistant registers, 

No vember 21. (.Jerks and Stenographers in the several registries of probate are 

to be filled under the regulations of the Department of Civil 

Service, in those cases where the holders of said positions are paid 

by the Commonwealth under the terms of St. 1921, c. 42. 

So far as is pertinent to the present inquiry, St. 1921, c. 42, 
allows annually to the registers of probate for the several coun- 
ties such sums, to be paid by the Commonwealth, as shall annually 
be appropriated by the General Court, and further provides that 
all clerical employees in the various registries of probate shall be 
subject to the statutory provisions relative to the classification 
of State offices and positions. 

Considering, first, the position of assistant register, it is to 
be noted that the statutory provisions concerning assistant reg- 
isters are found in G. L., c. 217, §§ 23 to 27. By section 23, 
the judges of probate for each county, except Dukes County and 
Nantucket, may appoint an assistant register, who shall hold 
office for three yea,TS unless sooner removed by the judge. Be- 
fore entering upon the performance of his duties, an assistant 
register is required to take the oath prescribed by the Constitu- 
tion, and to give bond to the Treasurer and Receiver-General for 
the faithful performance of his official duties. Section 24 pro- 
vides for the appointment of a second assistant register in the 



J. WESTON ALLEN, ATTORNEY-GENERAL. 335 

counties therein specified, who shall hold office for three years 
unless sooner removed by the judge. Section 25 provides for the 
appointment by the judges of probate in Middlesex County of a 
third assistant register, who shall hold office for three years un- 
less sooner removed by the judge. Section 27 provides: — 

An assistant register shall perform his duties under the direction of 
the register, and shall pay over to him all fees and amounts received 
as such assistant. He may authenticate papers and perform such other 
duties as are not performed by the register. In case of the absence, 
neglect, removal, resignation or death of the register, the assistant may 
complete and attest any records remaining unfinished and may act as 
register until a new register is qualified or the disability removed. 

A former Attorney-General stated that civil service rules look 
to the character of the service rather than to the designation 
of the office, and that he could not believe that it was intended 
by the statutes relating to cixil service that an officer holding 
an important, confidential and responsible position must be 
selected by competiti^-e examination. Referring to the secretary 
of the overseers of the poor of Lowell, he stated that "the char- 
acter of his employment is such that no form of competitive ex- 
amination would be so likely to secure an efficient officer as 
would be the case if the employing board had the right of per- 
sonal selection." See I Op. Atty.-Gen. 216, 218. This line of 
reasoning applies, in my opinion, even more strongly to an as- 
sistant register of probate and insolvency. 

An equally strong indication that the position of assistant 
register is not within the civil ser\'ice rules is contained in the 
provision that, after being appointed by the judges of probate, 
an assistant register shall hold office for three years unless sooner 
removed by the judges. If assistant registers were under civil 
service, they could not be remo^■ed at any time during tenure of 
office by the appointing power, but would be subject to removal 
only in compliance with the provisions of G. L., c. 31, § 43, which 
is the section containing the provisions as to the removal of 
persons in the classified public service of the Commonwealth. 

The above considerations make it unnecessary for me to con- 
sider and determine the question as to whether or not assistant 



336 OPINIONS OF THE ATTORNEY-GENERAL. 

registers of probate are "judicial officers," within the meaning of 
G. L., c. 31, § 5, because they are appointed by the judges of 
probate, and also because of the nature of their duties. 

I assume that your inquiry relative to clerks has to do with 
the clerks appointed in Suffolk County under the provisions of 
G. L., c. 217, § 28, and in Middlesex County under section 29, 
as distinguished from those employees designated as clerical 
assistants. 

Section 28 reads as follows : — 

The register for Suffolk county may, subject to the approval of the 
judges of probate for said county, appoint a clerk and may remove 
him at pleasure. 

Section 29 provides: — 

The register of INIiddlesex county may, with the approval of the 
judges of probate for said county, appoint a clerk who may administer 
such oaths required in probate proceedings, as are not prescribed by 
law to be administered by the judge or register, and shall perform such 
clerical and other duties as may be required by the register, with the 
approval of the judges, and he may be removed by the register with 
the consent and approval of the judges in the manner provided by section 
forty-three of chapter thirtj^-one. 

In the case of the Suffolk clerk, he may be removed at pleasure, 
and this, in my opinion, takes him out of the civil service classi- 
fication. 

On the other hand, the Middlesex clerk may be removed only 
in the manner provided for those under civil service, to wit, 
G. L., c. 31, § 43. This requirement as to method of removal, in 
my opinion, indicates that the Legislature intended that the 
Middlesex clerk should be subject to civil service rules and regu- 
lations. 

Taking up for consideration the positions of stenographers 
and other clerical assistants in the several registries of probate 
who are paid by the Commonwealth, under the provisions of 
St. 1921, c. 42, I would point out that G. L., c. 31, § 3, provides 
that the Civil Service Commission shall, subject to the approval 
of the Governor and Council, from time to time make rules and 



J. WESTON ALLEN, ATTORNEY-GENERAL. 

regulations which shall regulate the selection of persons to fill 
appointive positions in the government of the Commonwealth, 
and the classification of offices and employments to be filled and 
the rules made by the commissioners, with the approval of the 
Governor and Council, have the force of laws and are binding 
upon the appointing officers. Opinion of the Justices, 145 Mass. 
587, 590. 

Clause 5 of Rule 1 of the Civil Service Rules provides : — 

Persons paid by the Commonwealth or anj^ city, whether carried on 
the regular payroll, on special payroll or by presenting a bill personally 
or by some other person, company or corporation, shall be deemed to be 
"in the service of the Commonwealth or the city" within the meaning 
of these rules. 

Under " Classification of the Service. First Division. — The 
Official Service," in class 3 you have grouped clerks, copyists, 
private secretaries, recorders, messengers, office boys and persons 
doing similar work, and under class 9, stenographers, typewriters, 
telegraphers and telephone operators. Within these groups, in 
my judgment, fall the clerical assistants and stenographers in 
the several registries of probate who are paid by the Common- 
wealth. It is to be noted that by the provisions of St. 1921, 
c. 42, clerical employees in the registries of probate are subject 
to the provisions of G. L., c. 30, §§ 45 to 50, which have to 
do with the classification of certain State offices and positions. 

Consequently, it is my opinion that your department has 
classified the positions of clerical assistants and stenographers as 
among those to be filled under the provisions of the civil service 
statute, and has required that whenever there is a vacancy to 
be filled in such offices the appointing officer or power shall make 
requisition upon the department for names of eligible persons. 
The Commonwealth having assumed the payment of the salaries 
of certain clerical employees in the several registries of probate, 
these positions are brought within the civil service rules and 
regulations, and future appointments must be made in accord- 
ance with such rules and regulations. 



337 



338 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the 
Director of 
Registration. 

1921 
December 3. 



Dentists — Reciprocity Certificates. 

G. L., c. 112, § 48, providing for registration, without examination, of dentists 
who have been lawfully in practice in another State, applies only to dentists 
registered in the individual States of the United States of America, and does 
not include dentists registered in a foreign country. 

You request an interpretation of G. L., c. 112, § 48, as to 
whether or not the privilege therein extended to a practitioner 
coming from another State can be interpreted to include dentists 
coming from a foreign country. 

Said statute provides : — 

The board may, without examination, upon the payment of twenty 
dollars, register, and issue a certificate to, a dentist who has been law- 
fully in practice for at least five years in another state, or a dentist reg- 
istered therein, if he presents to the board his certificate of registration 
from the board of dental examiners or other like board where he last 
practiced; provided, that such other state shall require a degree of com- 
petency equal to that required of applicants in this commonwealth. 

While it is true that the word "state," in its broadest sense, 
signifies a political community organized under a distinct gov- 
ernment, and hence may include foreign countries, nevertheless, 
as the expression is used in the Federal Constitution and the 
constitutions and statutes of the several States of the United 
States, it is almost universally held to mean "other States of 
the United States," and does not embrace foreign countries. 
See to this effect ]\'arren v. Pirn, 66 N. J. Eq., 353; Eidman v. 
Martinez, 184 U. S. 578; Employers Liability Insurance Co. v. 
Insurance Commissioners, 64 Mich. 614; People v. Black, 122 
Calif. 73; G. L., c. 4, § 7, cl. 31. 

There can be no doubt that the intent of the Legislature in 
enacting said section 48 was to limit the expression "another 
State" to the individual States of the United States of America 
and to exclude all foreign countries, inasmuch as said statute as 
originally passed by the Legislature (see Gen. St. 1915, c. 301, 
§ 8) expressl}' provided that — 

Said board in its discretion may, without examination, upon the 
payment of a fee of twenty dollars, register and issue a certificate to a 



J. WESTON ALLEN, ATTORNEY-GENERAL. 339 

dentist who has been lawfully in practice for at least five years in another 
state or territory, or in the District of Columbia; or to any dentist regis- 
tered in another state, territory or the District of Columbia: . . . 

In my opinion, therefore, the provisions of G. L., c. 112, § 48, 
do not apply to dentists coming from a foreign country. 



Banks and Banking — State Banks — Interest on De- 
posits — Savings Departments. 

State banks may not pay interest on deposits except in the instances enumerated 
in R. L., c. 115, § 40. 

Under G. L., c. 167, § 12, it is not lawful for State banks to maintain savings de- 
partments and to solicit accounts in the manner of savings banks. 

You ask my opinion on the following questions relative to the to the Com- 
operation of State banks under R. L., c. 115: — of Banks. 

1921 
December 5. 

1. Is it permissible for State banks to pay interest on deposits except 

as provided for in section 40? 

2. Is it lawful for such banks to maintain savings departments and 
solicit accounts in the manner of savings banks, in view of G. L., c. 167, 
§12? 

I reply to your two questions as follows : — 
1. State banks are authorized to receive deposits by R. L., 
c. 115, § 30, w^hich defines in a general way the powers of such 
banks to carry on the business of banking. R. L., c. 115, § 40, 
contains limitations upon those general powers. The section is 
as follows : — 

N( bank shall make or issue a note, bill, check, draft, acceptance, 
certilicate or contract for the payment of money at a future day certain 
or with interest, except for money borrowed of the commonwealth or 
of a domestic institution for savings or money deposited by an assignee 
as provided in section sixty-two of chapter one hundred and sixty- 
three; and except also that debts due to one bank from another, in- 
cluding bills of the bank indebted, may draw interest; and banks maj'' 
contract with cities and towns in this commonwealth for the pa3anent or 
receipt of interest upon an account current of money deposited with 
and drawn from them by said cities and towns. 



340 OPINIONS OF THE ATTORNEY-GENERAL. 

Under this statute it has been held that a contract with a 
depositor to pay the amount of the deposit on a day certain is 
illegal and void. White v. Franklin Bank, 22 Pick. 181. The 
same rule was applied not only to contracts for the payment of 
deposits at a future day certain, but apparently also to contracts 
for the payment of interest on such deposits, in Atlas Bank v. 
Nahant Bank, 3 Met. 581, 585. On the authority of these two 
cases, as well as on what seems to be a plain construction of the 
statute, I must advise you that it is not permissible for State 
banks to pay interest on deposits except in the instances enu- 
merated in said section 40. 

2. G. L., c. 167, § 12, prohibits the transacting of business in 
the manner of a savings bank except by savings banks and trust 
companies incorporated under the laws of this Commonwealth 
and certain foreign banking corporations. Said section 12 is, 
in part, as follows: — 

No corporation, domestic or foreign, and no person, partnership or 
association except savings banks and trust companies incorporated un- 
der 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, nine- 
teen hundred and six, shall hereafter make use of any sign at the place 
where its business is transacted having thereon any name, or other 
words indicating that such place or office is the place or office of a sav- 
ings bank; . . . nor shall any such corporation, person, partnership or 
association, or any agent of a foreign corporation not having an estab- 
lished place of business in this commonwealth, solicit or receive deposits 
or transact business in the way or manner of a savings bank, or in such 
a way or manner as to lead the public to believe, or as in the opinion of 
the commissioner might lead the public to believe, that its business is 
that of a savings bank; . . . 

The Attorney-General has ruled that the provisions of this 
statute are applicable to a corporation organized prior to its 
passage. Ill Op. Atty.-Gen. 250. State banks are neither 
savings banks nor trust companies. In the Revised Laws pro- 
visions relative to savings banks are incorporated in chapter 113, 
and provisions relative to trust companies are incorporated in 
chapter 116, while the organization and powers of State banks 



J. WESTON ALLEN, ATTORNEY-GENERAL. 341 

are provided for by chapter 115, which by Gen. St. 1918, c. 12, 
has been discontinued except as to banks already incorporated 
therein. A State bank, being a domestic corporation which is 
not a savings bank or a trust company, is a corporation which 
is clearly prohibited from soliciting or receiving deposits or trans- 
acting business in the way or manner of a savings bank by the 
express provisions of G. L., c. 167, § 12. I must advise you, 
therefore, in answer to your second question, that it is not law- 
ful for such banks to maintain savings departments and to solicit 
accounts in the manner of savings banks. 



Fishing and Hunting Licenses — License to rear Wild 
Birds or Game for Sale as Food — Surrender of 
License by Person convicted of Violation of Fish 
AND Game Laws. 

Licenses to hunt and fish, or to rear wild birds or game for sale as food, become 
ipso facto void upon the conviction of the licensee of a violation of the fish 
and game laws of the Commonwealth, and a refusal to surrender such license 
upon such conviction constitutes a misdemeanor, subjecting the licensee to 
the penalty imposed by G. L., c. 131, §§ 84 and 88, respectively. 

You ask my opinion and advice as to what procedure your TotheCom- 
department should take to enforce the fish and game laws in coMerTatfon. 

. 1921 

regard to obtaining the surrender of fishing and hunting licenses Decembers. 
by persons convicted thereunder who refuse to give them up, 
as required by the provisions of G. L., c. 131, §§ 14 or 84. Said 
sections provide as follows : — 

Section 14. Whoever makes a false representation as to birthplace, 
requirements for identification, or of facts relativ^e to property qualifica- 
tions, or naturalization, or otherwise violates any provision of sections 
three to fourteen, inclusive, or is in any way directly or indirectly a 
party thereto, shall be punished by a fine of not less than ten nor more 
than fifty dollars or by imprisonment for not more than one month, or 
both. The certificate of any person convicted of a violation of the fish 
and game laws or of any provision of sections three to fourteen, inclu- 
sive, shall be void, and shall immediately be surrendered to the officer 
securing such conviction. The officer shall forthwith forward the cer- 
tificate CO the director, who shall cancel the same and notify the clerk 



342 OPINIONS OF THE ATTORNEY-GENERAL. 

issuing the certificate of the cancellation thereof, and no person shall 
be given a certificate during the period of one year from the date of 
conviction. Any certificate issued to such person within one year of 
his conviction as aforesaid shall be void, and shall be surrendered on 
demand of any officer authorized to enforce the fish and game laws. 
No fee received for a certificate cancelled under this section shall be 
returned. 



Section 84. Any person holding a license under section eighty-two, 
eightj'-three or eighty-six, convicted of any violation of the fish and 
game laws, shall forfeit such license and be debarred from securing a 
new license for a period of one year from the date of conviction, in addi- 
tion to being subject to the penalties provided in section eighty-eight. 
No person and no corporation of which he is a member shall be eligible 
to hold a license under said section if he has been convicted of any vio- 
lation of the fish and game laws within one year prior to application 
therefor. 

It is evident that the certificate of any person, upon con- 
viction of a violation of the fish and game laws, becomes ipso 
facto void, so that, as a matter of law, there is no certificate out- 
standing, the original certificate becoming in law but a blank 
piece of paper, and thereafter the status of such convicted party, 
as to his right to hunt or fish, is the same as if he had never re- 
ceived a certificate, its mere retention and possession conferring 
no rights. 

It would seem, however, that the provisions of section 14 are 
comprehensive enough to provide for a separate punishment for 
a person who refuses to surrender his certificate upon conviction, 
inasmuch as it is therein provided that "whoever makes a false 
representation ... or otherwdse violates any provision of sec- 
tions three to fourteen, inclusive, or is in any w^ay directly or 
indirectly a party thereto, shall be punished by a fine of not less 
than ten nor more than fifty dollars or by imprisonment for not 
more than one month, or both." One of the provisions of said 
section 14 is that "the certificate of any person convicted of a 
violation of the fish and game laws or of any provision of sections 
three to fourteen, inclusive, shall be void, and shall immediately 
be surrendered to the officer securing such conviction." 



J. WESTON ALLEN, ATTORNEY-GENERAL. 343 

In my opinion, therefore, refusal to surrender such certificate 
immediately upon conviction to the officer securing such con- 
viction constitutes a distinct offence, for which the party is liable 
to the punishment provided in said statute. 

As to the provisions of section 84, above quoted, it is apparent 
that the license therein referred to (to rear wild birds or game for 
sale as food) is likewise forfeited upon conviction of the holder 
thereof of any violation of the fish and game laws, and it would 
seem that refusal to surrender such license constitutes a dis- 
tinct misdemeanor, for which the penalty imposed by section 88 
of said chapter 131 may be imposed. 

I might suggest another method of securing the surrender of 
such certificates or licenses, which may prove to be even more 
efficacious, namely, that the officer of your department, upon 
securing a conviction, could request the court to continue the 
case for sentence for a definite period of time, as, for example, 
one week, and if in the meantime the defendant refuses to sur- 
render said certificates or licenses, this fact could be brought to 
the attention of the court as bearing on the matter of sentence. 



344 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Com- 
mission on 
State Adminis- 
tration and 
Expenditures. 

1921 
December 5. 



Constitutional Law — Apportionment of Senators and 
Representatives — Census of Legal Voters — Substi- 
tution OF Apportionment based on Local Enumera- 
tion FOR Constitutional Census — Date of Census — 
Executive Construction of Constitution — "Legal 
Voter." 

Under Mass. Const. Amend. XXI and XXII, a statute which provides that an 
enumeration of legal voters made by local authorities shall be substituted for 
the enumeration required by those amendments would be unconstitutional. 

A statute which provides that the State census shall be taken in the same year 
as the Federal census would be unconstitutional because in conflict with the 
requirement of Mass. Const. Amend. XXI and XXII, that the State census 
be taken in 1865 and "of every tenth year thereafter." 

The constitutional apportionment of senators and representatives cannot be 
based upon those persons who have complied with the registration statute. 

The words "legal voter" embrace all who possess the constitutional qualifications 
for the ballot, whether registered or not. 

While an executive construction of a constitution or statute cannot control the 
plain meaning of the words emploj'ed, it is of weight in determining the mean- 
ing of a doubtful phrase if long continued and acquiesced in. 

You have made the following inquiries in regard to the de- 
cennial State census : — 

1. Would a statute which substitutes an enumeration of legal voters 
made by local officers for the enumeration now made in connection with 
the State census be constitutional? 

2. Would it be constitutional to provide by statute that the State 
census shall be taken at the same time as the Federal census? 

3. Does the term "legal voter" mean a registered voter or one who 
possesses all the qualificaticns for the ballot required by the Constitu- 
tion although he is in fact unregistered? 



I. Mass. Const. Amend. XXI provides, in part: — 

A census of the legal voters of each cit,y and town, on the first day of 
May, shall be taken and returned into the office of the secretary of the 
commonwealth, on or before the last day of June, in the year one thou- 
sand eight hundred and fifty-seven; and a census of the inhabitants 
of each city and town, in the year one thousand eight hundred and 
sixty-five, and of every tenth year thereafter. In the census aforesaid, 
a special enumeration shall be made of the legal voters; and in each 
city, said enumeration shall specify the number of such legal voters 
aforesaid, residing in each ward of such city. The enumeration afore- 



J. WESTON ALLEN, ATTORNEY-GENERAL. 345 

said shall determine the apportionment of representatives for the periods 
between the taking of the census. 

The house of representatives shall consist of two hundred and forty 
members, which shall be apportioned by the legislature, at its first ses- 
sion after the return of each enumeration as aforesaid, to the several 
counties of the commonwealth, equally, as nearly as may be, according 
to their relative numbers of legal voters, as ascertained by the next 
preceding special enumeration ; . . . 

It further prescribes how representative districts shall be de- 
termined. Amendment XXII contains similar provisions for the 
census and enumeration of legal voters, provides that such enu- 
meration shall determine the apportionment of senators for the 
periods between the taking of the census, and prescribes the • 
manner in which senatorial districts shall be determined. These 
articles superseded Amendment XIII, which provided for. a 
census of "inhabitants" of each city and town in 1840 and in 
every tenth year thereafter, and made such census the basis of 
apportionment of both senators and representatives. Opinion of 
the Justices, 122 Mass. 594. 

Nothing can more deeply concern the freedom and stability, 
the harmony and success of a representative government, noth- 
ing more directly affects the political and civil rights of its 
members and subjects, than the manner in which its legisla- 
tive department is constituted. Oj^inion of the Justices, 10 Gray, 
613, 615; Attorney-General v. Apportionment Commissioners, 
224 Mass. 598, 601. A representative legislative department is 
based upon the constitutional right to vote and upon the due 
apportionment of representation among the voters. It is not 
now necessary to consider the constitutional qualifications for the 
ballot further than to point out that they cannot be increased 
or diminished by statute. Kinneen v. Wells, 144 Mass. 497; 
Opinion of the Justices, 226 Mass. 607; see also Capen v. Foster, 
12 Pick. 485. Amendment XIII formerly prescribed, and Amend- 
ments XXI and XXII now prescribe, the mode in which repre- 
sentation in the House and Senate shall be apportioned. Due 
compliance with the mandates of Amendments XXI and XXII 
is a constitutional right which may be enforced not only by the 



346 OPINIONS OF THE ATTORNEY-GENERAL. 

Attorney-General, as the representative of all the people (At- 
torney-General v. Ajjj^ortionment Commissioners, 224 Mass. 598), 
but also by any voter who is aggrieved by failure to obey them. 
Donovan v. Ayportionment Commissioners, 225 Mass. 55; McGIue 
V. County Commissioners, 225 Mass. 59; Brophy v. Apportion- 
ment Commissioners, 225 Mass. 124. 

The census for which Amendments XXI and XXII provide 
is the basis of the apportionment prescribed by those amend- 
ments. Opinion of the Justices, 142 Mass. 601 ; Opinion of the 
Justices, 157 Mass. 594. While the census taken in 1857 was 
a special census of "legal voters" only (see Opinion of the Jus- 
tices, 220 ]\Iass. 60S), the census to be taken in 1865 and in every 
• tenth year thereafter was and is a census of "inhabitants" (see 
Opinion of the Justices, 122 Mass. 594), in which "a special enu- 
meration of the legal voters" must be made. As the Constitu- 
tion expressly requires that such enumeration shall be made "in 
the census aforesaid," and further provides that "the enumeration 
aforesaid" shall determine the apportionment of both senators 
and representatives, such apportionment cannot constitutionally 
be based upon an enumeration made in a different manner. The 
Supreme Judicial Court has so advised on two occasions. In 
Opinion of the Justices, 142 Mass. 601, the justices said, at page 
604: — 

We have no doubt that the amendment imposes upon the General 
Court, in each tenth 3''ear, the duty of providing by suitable legislation 
that a census and enumeration of legal voters shall be taken and re- 
turned into the office of the Secretary of the Commonwealth. The 
great object of the amendment was to establish the Senate upon the 
basis of legal voters, and to provide for a method of ascertaining the 
number of legal voters, so as to furnish a guide to the General Court in 
dividing the State into senatorial districts. The fundamental idea is, 
that an enumeration shall be made under the authority and direction 
of the Commonwealth, and that this eiuimeration alone shall guide the 
General Court in making the division. Such enumeration must "de- 
termine the apportionment of senators," and the division must be made 
"according to the enumeration aforesaid." The General Court is to 
be governed entirely b}' this enumeration, and is not at liberty to look 
to any other source for information as to the number of legal voters 
in any territory which it proposes to erect into a senatorial district. It 



J. WESTON ALLEN, ATTORNEY-GENERAL. 347 

must act upon the enumeration returned to the office of the Secretary 
of the Commonwealth, and by him laid before the Legislature. 

So also in Opinion of the Justices, 157 Mass. 594, 595, the justices 
said : — 

The clause that "The enumeration aforesaid shall determine the ap- 
portionment of representatives (or senators) for the periods between 
the taking of the census," must mean that the apportionment is to be 
made upon the enumeration, and that the apportionment, after it is 
made, must determine the representative and senatorial districts and 
the number of representatives appropriate to each representative dis- 
trict until a new enumeration and an apportionment have been made. 
The enumeration and the apportionment are parts of one proceeding 
for distributing among the cities and towns of the Commonwealth in 
just proportion, every ten years, the senators and representatives to 
be elected during that period. 

I am therefore of opinion that an enumeration of legal voters 
made by local officers cannot constitutionally be substituted for 
the enumeration prescribed by Amendments XXI and XXII. 

2. The requirement that the census be taken in May and June 
applied only to the census of legal voters to be taken in 1857. 
Ojnnion of the Justices, 220 Mass. 608. But both Amendments 
XXI and XXII require that a census of inhabitants shall be taken 
in 1865 and "of every tenth year thereafter." The Federal Act 
of July 2, 1909, c. 2, § 1, 36 Stat. 1, provides for a Federal census 
in the year 1910, and every ten years thereafter. The gap between 
the State census period and the Federal census period is therefore 
five years. The year in which the State census is taken fixes the 
recurring dates of reapportioning representation in both the House 
and Senate. I am therefore of opinion that the constitutional 
provision which requires the State census to be taken in 1865 and 
in every tenth year thereafter is mandatory, and that it cannot be 
altered by statute to coincide with the year prescribed for the 
Federal census. I may further point out that for the reasons 
already set forth the apportionment of representatives and senators 
in our State Legislature could not properly be based upon the 
Federal census. 

3. The Constitution contains no definition of "legal voter." 



348 OPINIONS- OF THE ATTORNEY-GENERAL. 

V Op. Atty.-Gen. 502. But as Amendments XXI and XXII 
required a census of "legal voters" in 1857, and still require an 
enumeration of "legal voters" in the census of 1865 and of every 
tenth year thereafter, compliance with that mandate made neces- 
sary an executive construction of the term. I am informed that 
the executive construction adopted in 1857 and since adhered 
to does not confine the term to those voters who have registered, 
but, on the contrary, embraces all those who possess the constitu- 
tional qualifications for the ballot, whether registered or not. 
While an executive construction of a constitution or statute cannot 
control the plain meaning of the words employed, it is of weight 
in determining the meaning of a doubtful phrase if long continued 
and acquiesced in. Pierce v. Drew, 136 Mass. 75, 79; Costley v. 
CommoniveaUh, 118 Mass. 1, 36; Opinion of the Justices, 214 Mass. 
602, 606. 

The Constitution neither requires nor provides for registration 
of those qualified to vote. The first registration law was enacted 
in 1821 and was upheld in Capen v. Foster, 12 Pick. 485, which was 
decided in 1831. Amendments XXI and XXII were adopted on 
May 1, 1857. At that time the statutes requiring registration as 
a condition precedent to voting had been in force for over thirty- 
five years. It cannot be supposed that the persons who drafted 
these amendments of the people who ratified them WTre ignorant 
of the practice. If the intention was to base the apportionment of 
both House and Senate upon the number of registered voters, 
that intention could have been easily expressed in clear and unam- 
biguous words. Moreover, if that had been the intention, no 
census would have been required. An enumeration of the regis- 
tration lists would have sufficed. Instead, the amendments avoid 
the use of the term "registered voter," use the phrase "legal 
voter," and provide for a census of "legal voters" in 1857 and for 
an enumeration of "legal voters" in the census of "inhabitants" 
to be taken in 1865 and in every tenth year thereafter. 

To found the constitutional apportionment of senators and 
representatives upon registered voters would introduce a serious 
defect into the legislative structure. Registration now depends 
upon statute only. If apportionment were based upon those who 



J. WESTON ALLEN, ATTORNEY-GENERAL. 349 

had complied with the statute, the repeal of the registration law 
would destroy the whole basis of apportionment. A construction 
of Amendments XXI and XXII which would make the continued 
existence of the Legislature itself dependent upon a law, as dis- 
tinguished from the Constitution, is not to be adopted unless 
clearly required. The phrase "legal voter," taken in connection 
with the constitutional qualifications for the vote, naturally refers 
to those who possess those qualifications, rather than to those 
who have complied with the registration act. I am therefore of 
opinion that the words "legal voter" embrace all who possess the 
constitutional qualifications, whether registered or not. 



CONSTITrTIONAL LaW — CiVIL SERVICE — VeTERANS' PREF- 
ERENCE — Creation of Office of Controller — Dele- 
gation OF Delegated Power — Continuation Schools. 

G. L., c. 31, §§ 21-28, providing for veterans' preference in the civil service, are 

constitutional. 
The Legislature has power to create a new administrative office, such as that of 

controller, to which certain of the duties of the Auditor and the Treasurer and 

Receiver-General may be transferred. 
The commission appointed by the Legislature to care for the welfare of soldiers 

cannot delegate their powers and duties to the American Legion. 
G. L., c. 71, § 24, providing for State reimbursement for continuation schools, is 

constitutional. 

You have put to me a number of inquiries, the first of which I ^tsslon^n'"' 
have answered in a separate communication. The remaining fri^^ioifaSd"'^' 

,• L 1 • 1 ix T £ 11 Expenditures. 

questions, numbered as in your letter, I answer as follows: — 1921 

December 5. 



2. You ask whether the provi.sions for veteran.s' preference in the 
civil service are constitutional. 

The question of the constitutionality of veterans' preference 
acts has been considered by our court. 

St. 1895, c. 501, §§ 2 and 6 provided, in substance, that vet- 
erans who had made application for employment in the public 
service, in the manner therein provided, should be preferred for 
certification and appointment in preference to all other appli- 
cants not veterans, except women, with a pro^'iso as to age limit. 



350 OPINIONS OF THE ATTORNEY-GENERAL. 

These sections were held in Brown v. Russell, 166 Mass. 14, to be 
unconstitutional, on the ground that their purpose was to make 
the appointment of veterans compulsory, whether or not they 
were found or thought to be qualified to perform the duties of 
the office or employment which they sought. 

Thereupon St. 1896, c. 517, was passed, which made some 
changes in the pre\'ious law. 

Section 2 provides that veterans might apply for examination 
for any position in the qualified public service, and that if they 
passed the examination they should be preferred in appointment 
to all male persons not veterans. 

Section 3 gave a discretion to the appointing power to appoint 
veterans to certain offices and employments without an examina- 
tion, if in its opinion the needs of the public service required that 
to be done. 

Section 6 provided that the Civil Service Commissioners 
should establish rules to secure the employment of veterans in 
the labor service of the Commonwealth, and of the cities and 
towns thereof, in the class for which they made application, in 
preference to all other persons except women, giving the commis- 
sioners authority to recognize an age limit in certain instances. 

These sections were held to be constitutional by a majority of 
the justices in Opinion of the Justices, 166 Mass. 589. This 
opinion has been cited in later decisions and has not been over- 
ruled. Ransoiii v. Boston, 192 Mass. 299, 304; PhiUips v. Metro- 
politan Park Coimiiission, 215 Mass. 502, 506; cf. I Op. Atty.- 
Gen. 340. 

The present law appears in G. L., c. 31, §§ 21 to 28. By sec- 
tion 21 the meaning of the word "veteran," previously confined 
to persons who had served in the War of the Rebellion or who 
had received a medal of honor from the President of the United 
States for distinguished service in the army or na^'y of the United 
States, was enlarged to include persons who had ser^'ed in the 
army, navy or marine corps of the United States in time of war 
or insurrection and had been honorably discharged from service 
or released from active duty therein. 

Sections 22, 23 and 24 are as follows: — 



J. WESTON ALLEN, ATTORNEY-GENERAL. 351 

Section 22, A veteran of the civil war, or a person who has re- 
ceived a medal of honor as provided in the preceding section, may ap- 
ply to the commissioner for appointment or emploj^ment in the classi- 
fied civil service without examination. In such application, he shall 
state on oath the facts required by the rules. Age, loss of limb or other 
disabilitj^ which does not in fact incapacitate shall not disqualifj^ him 
for appointment or employment under this section. Appointing officers 
ma}'' make requisition for the names of any or all such veterans and 
appoint or employ any of them. 

Section 23. The names of veterans who pass examinations for ap- 
pointment to anj' position classified under the civil service shall be placed 
upon the respective eligible lists in the order of their respective standing, 
above the names of all other applicants, and upon receipt of a requisi- 
tion not especially calling for women, names shall be certified from such 
lists according to the method of certification prescribed by the civil 
service rules appljang to civilians. 

Section 24. A veteran who registers for employment in the labor 
service of the commonwealth and of the cities and towns thereof, if 
found qualified, shall be placed on the eligible list for the class for which 
he registers ahead of all other applicants. The names of eligible vet- 
erans shall be certified for labor service in preference to other persons 
eligible according to the method of certification prescribed by the civil 
ser\ace rules applj'ing to civilians. If, however, the appointing officer 
certifies in the requisition for laborers that the work to be performed 
requires young and vigorous men, and, on investigation, the commis- 
sioner is satisfied that such certificate is true, he may fix a limit of age 
and certify only those whose age falls within such limit. 

These sections correspond to St. 1896, c. 517, §§ 3, 2 and 6, 
respectively. While the language of the provisions has been 
changed, the substance of these sections remains as it was in the 
earlier acts, except for the enlargement of the meaning of the 
word "veteran" in sections 23 and 24. 

The decisions of our court and of the New York court upon 
the constitutionality of statutes providing for the payment of 
bonuses to veterans [Opinion of the Justices, 211 Mass, 608; 
People V. Westchester County National Bank, 132 N. E. Rep. 
[N. Y.] 241] would seem to have little bearing. 

The Attorney-General does not advise upon the constitution- 
alit}^ of existing laws except under unusual circumstances; but 
for the purpose of aiding your commission in its deliberations 



352 OPINIONS OF THE ATTORNEY-GENERAL. 

I do not deem it improper to call jour attention to the authorities 
above cited. 

3. You ask whether an administrative head, such as a controller, can 
be created, with certain legislative powers to be taken from the office 
of the Auditor or of the Treasurer and Receiver-General. 

The office of Treasurer and Receiver-General was recognized 
- ^in the original Constitution, of which chapter II, section IV, 
article I, provided as follows: — 

The secretary, treasurer and receiver-general, and the commissary- 
general, notaries public, and naval officers, shall be chosen annually, 
by joint ballot of the senators and representatives in one room. And, 
that the citizens of this commonwealth may be assured, from time to 
time, that the moneys remaining in the public treasury, upon the set- 
tlement and liquidation of the public accounts, are their property, no 
man shall be eligible as treasurer and receiver-general more than five 
years successively. 

The office of Auditor was created by the Legislature by St. 
1849, c. 56, entitled "An Act to establish the office of auditor 
of accounts." The duties of the Auditor, as provided generally 
by this statute, were to examine accounts and demands against 
the Commonwealth, to approve and countersign receipts given 
by the Treasurer, to keep a distinct account of all public receipts 
and expenditures under appropriate heads, to examine the books 
and accounts of the Treasurer, with the vouchers, to submit to 
the Legislature a complete statement of the public property of 
the Commonwealth, its debts and obligations, revenue and 
expenses during the preceding year and the balance left in the 
treasury, and to submit also an estimate of expenses for the 
current year and of the ordinary income of the Commonwealth. 
Many of these duties are continued in G. L., c. 11, while some of 
them are placed with the heads of departments. 

The office of Auditor was recognized by the Constitution in 
article XVII of the Amendments, which provides for the elec- 
tion of the Secretary, Treasurer and Receiver-General, Auditor 
and Attorne^'-General as follows: — 



J. WESTON ALLEN, ATTORNEY-GENERAL. 353 

The secretary, treasurer and receiver-general, auditor, and attorney- 
general, shall be chosen annually, on the day in November prescribed 
for the choice of governor; and each person then chosen as such, duly 
qualified in other respects, shall hold his office for the term of one year 
from the third Wednesday in January next thereafter, and until another 
is chosen and qualified in his stead. 

Mass. Const, pt. 2d, c. I, § I, art. IV, gives power to the General 
Court "to name and settle annually, or provide by fixed laws for 
the naming and settling, all civil officers within the said com- 
monwealth, the election and constitution of whom are not here- 
after in this form of government otherwise provided for; and 
to set forth the several duties, powers, and limits, of the several 
civil and military officers of this commonwealth." 

It is a well-recognized principle that where an office is established 
by the Constitution without provision as to the term or duties 
thereof, the latter may be altered, enlarged or modified in such 
manner as the Legislature may deem for the public interest. Wales 
V. Belcher, 3 Pick. 508, 509, 510; Dearborn v. Ames, 8 Gray, 1; 
Commonwealth v. Intoxicating Liquors, 110 Mass. 172; Oyinion 
of the Justices, 117 Mass. 603; Opinion of the Justices, 216 Mass. 
605, 606; Attorney-General v. Tufts, 239 Mass. 458; III Op. 
Atty.-Gen. 546, 549. 

It is my opinion, therefore, that the Legislature clearly has 
power to create a new administrative office to which certain of the 
duties of the Auditor and of the Treasurer and Receiver-General 
may be transferred. As a matter of nomenclature I make the 
suggestion that the title "controller," which you have suggested, 
means the same thing as "auditor." 

4. You ask whether the commission appointed to care for the welfare 
of soldiers can turn over their work to the American Legion, allowing 
the American Legion to send vouchers to the commission in regard to 
expenditures. 

The commission you refer to was established by Gen. St. 1919, 
c. 125, entitled "An Act to establish the Soldiers' and Sailors, 
Commission." Section 1 of that act states the duties of the com- 
mission as follows : — 



354 OPINIONS OF THE ATTORNEY-GENERAL. 

There is hereby estabhshed the Soldiers' and Sailors' Commission 
whose object shall be to investigate the economic or other conditions 
which have resulted in the nonemployment of manj^ soldiers, sailors and 
marines who have been honorably discharged or have been released 
from the service of the United States; to procure employment for them; 
to take such measures as may be legal and proper to induce former 
employers of soldiers and sailors to reinstate them in the positions which 
they held before entering the service; to provide means of support for 
them and their dependents if the}'^ are unable to procure employment, 
or if they are unable to work on account of disability or illness; and, 
in general, to befriend, protect and encourage those citizens of the com- 
monwealth who have received or shall hereafter receive an honorable 
discharge or release from the military or naval service of the United 
States. 

Section 2 provides that the commission shall consist of the 
persons designated under Spec. St. 1919, c. 112, section 1 of which 
is as follows : — 

To provide for aiding returned soldiers, sailors and marines to find 
employment, the sum of ten thousand dollars is hereby appropriated 
out of the general fund or ordinary revenue of the commonwealth, to 
be expended under the direction and with the approval of a commission, 
to consist of the commissioner of labor, the commissioner of state aid 
and pensions, the adjutant general and six other citizens of the com- 
monwealth, to be appointed by the governor with the adAace and con- 
sent of the council, for the purpose of investigating the economic and 
other conditions which have resulted in the non-emploj^ment of soldiers, 
sailors and marines, and of procuring emploj^ment for them. 

Sections 3 and 4 of Gen. St. 1919, c. 125, contain further pro- 
visions as to the powers and duties of the commission, and section 5 
provides that the commission shall continue in existence until it 
is dissolved by proclamation made by the Governor. 

Appropriations for the purpose of securing employment for 
returned soldiers, sailors and marines, under the direction of this 
commission, were made by St. 1920, c. 621, and by St. 1921, c. 203, 
§ 2, item 139. 

By the express terms of Gen. St. 1919, c. 125, the work of investi- 
gating conditions and procuring employment was made a duty of 
the commission. The subsequent appropriations were made to be 



J. WESTON ALLEN, ATTORNEY-GENERAL. 355 

expended under the direction of the commission and for the pur- 
pose of continuing its work. It is a general principle that a dele- 
gated power cannot be delegated. Stoughton v. Baker, 4 Mass. 
522, 530, 531; Sanborn v. Carleton, 15 Gray, 399, 403. In my 
judgment, it is clear that a committee appointed by the Legis- 
lature, with certain powers and duties, cannot delegate those 
powers and duties to be performed by some other body. I must 
therefore answer this question in the negative. 

5. Your last question, as I understand it, is whether G. L., c. 71, 
§ 24. providing for State reimbursement for continuation schools, is 
constitutional. 

Mass. Const., pt. 2d, c. I, § I, art. IV, gives to the General 
Court full power and authority "from time to time to make, 
ordain, and establish, all manner of wholesome and reasonable 
orders, laws, statutes, and ordinances, directions and instructions, 
either with penalties or without ; so as the same be not repugnant 
or contrary to this constitution, as they shall judge to be for the 
good and welfare of this commonwealth, and for the government 
and ordering thereof, and of the subjects of the same, and for the 
necessary support and defence of the government thereof." 

In the recent case of Knights y. Treasurer and Receiver-General, 
237 Mass. 493, the court says: — 

The distribution of public moneys in way of expenditures either di- 
rectly by State officers or indirectly through county, city, town, or dis- 
trict officers need not be according to any principle of apportionment 
or equality other than such as commends itself to the wisdom of the 
General Court. Lowell v. Oliver, 8 Allen, 247, 255; Duffy v. Treasurer 
and Receiver-General, 234 Mass. 42. 

I cannot advise you that the provision in question is in any 
respect unconstitutional. In my opinion, it is within the legisla- 
tive discretion. 



356 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Com- 
missioner of 
Education. 

1921 
December 14. 



Constitutional Law — " Anti-Aid " Amendment — Appropria- 
tion OF Public Funds — State Vocational Education — 
Contracts with Private Teaching Agencies. 

Mass. Const. Amend. XL VI, the so-called "anti-aid" amendment, acts as a bar 
to the State Board of Vocational Education contracting with private institu- 
tions and persons for the furnishing of vocational instruction, if thereby there 
is involved the payment of any of the moneys appropriated by the Legislature 
for the use of said board. 

On behalf of the State Board for Vocational Education you have 
submitted to me for approval as to matters of form a draft of 
agreement to be entered into by that board with certain private 
institutions and individuals for vocational instruction to be given 
persons injured in industry or otherwise, said board acting in the 
matter pursuant to the provisions of St. 1921, c. 462. 

In your communication you also inquire as to whether Mass. 
Const. Amend. XLVI, the so-called "anti-aid" amendment, is 
a bar to said board contracting with private institutions and 
persons for the furnishing of vocational instruction. 

On June 2, 1920, the 66th Congress passed an act entitled 
"An Act to provide for the promotion of vocational rehabilitation 
of persons disabled in industry and otherwise and their return 
to civil employment." By this act of Congress there was ap- 
propriated for the use of the States which accepted the provisions 
of the act certain Federal moneys for vocational rehabilitation, 
and all moneys expended under the provisions of the act are to 
be expended upon certain conditions, one of which is that "for 
each dollar of Federal money expended there shall be expended 
in the State under the supervision and control of the State board 
at least an equal amount for the same purpose." By St. 1921, 
c. 462, the Commonwealth of Massachusetts accepted the pro- 
visions of this act of Congress, and the Legislature, by St. 1921, 
c. 502, item 334a, appropriated $10,000 for the purpose of carry- 
ing out the provisions of the act. 

So far as is pertinent to the present inquiry, Mass. Const. 
Amend. XLVI, § 2, provides that "no grant, appropriation or 
use of public money or property or loan of public credit shall be 



J. WESTON ALLEN, ATTORNEY-GENERAL. 357 

made or authorized by the commonwealth ... for the purpose 
of founding, maintaining or aiding any school or institution of 
learning, whether under public control or otherwise, wherein 
any denominational doctrine is inculcated, or any other school, 
or any college, . . . institution, or educational, 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 or federal au- 
thority or both." 

These provisions, in my opinion, act as a bar to the execution 
of a contract, as proposed by you, which involves the payment 
to a private institution or individual of any of the moneys ap- 
propriated by the Commonwealth. 

The funds, however, which are allotted to this Commonwealth 
from appropriations made under the act of Congress, and of 
which the Treasurer and Receiver-General is custodian, may, in 
my opinion, be expended pursuant to the terms of an agreement 
for instruction entered into with private institutions and persons 
by the State Board for Vocational Education. 

The distinction between moneys appropriated by the Com- 
monwealth and those allotted by the Federal government to the 
Commonwealth should be kept clearly in mind, and only the 
latter funds should be paid out to private institutions or indi- 
viduals which are not publicly owned and which are not under 
the exclusive control, order or superintendence of public officers 
or public agents authorized by the Commonwealth. 



358 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Hoase 
Committee 
on Rules. 
1921 
December 15. 



CONSTITUTION.^L LaW — HoUSE OF REPRESENTATIVES — 

Incompatible Offices — Effect of accepting In- 
compatible Office — Power to determine Disqualifi- 
cation — Right of De Facto Member to Salary. 

Under Mass. Const. Amend. VIII, the office of Deputy Collector of Internal 
Revenue of the United States is incompatible with the office of representative 
to the General Court. 

Where a member of the House of Representatives of Massachusetts accepts the 
incompatible office of Deputy Collector of Internal Revenue of the United 
States, he ceases to be a dc jure member of the House, but remains a de facto 
member until the House either accepts the resignation or declares the seat 
vacant. 

While the House of Representatives is the exclusive judge of the qualifications of 
the members thereof, it has been accustomed in such cases to follow the rules 
of law. 

A de facto officer is not entitled to salary or compensation. 

You inquire whether a member of the House of Representatives 
of this Commonwealth, who was appointed a Deputy Collector 
of Internal Revenue of the United States, and who took the oath 
of office on October 10, 1921, has vacated his seat as representa- 
tive. 

Mass. Const. Amend. VIII provides: — 

No judge of any court of this commonwealth, (except the court of 
sessions,) and no person holding any office under the authority of the 
United States, (postmasters excepted,) shall, at the same time, hold 
the office of governor, lieutenant-governor, or councillor, or have a seat 
in the senate or house of representatives of this commonwealth; and 
no judge of any court in this commonwealth, (except the court of ses- 
sions,) nor the attorney-general, solicitor-general, county attorney, clerk 
of any court, sheriff, treasurer and receiver-general, register of probate, 
nor register of deeds, shall continue to hold his said office after being 
elected a member of the Congress of the United States, and accepting 
that trust; but the acceptance of such trust, by any of the officers afore- 
said, shall be deemed and taken to be a resignation of his said office; 
and 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. 

In my opinion, one who is appointed a Deputy Collector of 
Internal Revenue of the United States and takes the oath of 



J. WESTON ALLEN, ATTORNEY-GENERAL. 359 

office is a " person holding an office under the authority of the 
United States," within the meaning of this amendment. Such 
office is manifestly not within the exception as to postmasters. 
I am therefore of opinion that the two offices are incompatible. 

It seems that the acceptance of this Federal office does not 
in and of itself ^•acate the office of representative. The amend- 
ment proA'ides that "the acceptance of such trust, by any of 
the officers aforesaid, shall be deemed and taken to be a resig- 
nation of his said office." There is serious doubt as to whether 
a member of the House or Senate can divest himself of that 
office by resignation until action is taken thereon by the House 
or Senate, as the case may be. In Fitchhurg Railroad Co. v. 
Grand Junctiou, etc., Co., 1 Allen, 552, Chief Justice Shaw, sitting 
at 7iin prim, ruled that a senator, by simply tendering his resig- 
nation, did not divest himself of the office, but this point was 
left undecided by the full bench. See also Badger v. United 
States ex rel. Bolles, 93 U. S. 599; III Op. Atty.-Gen. 1. A ju- 
dicial officer who accepts an incompatible office is liable to re- 
moval in a direct proceeding by the Commonwealth. Coiirmon- 
iceaUh v. Hawkes, 123 ]\Iass. 525. But until removed he remains 
an officer de facto though not de jure. Sheehans Case, 122 Mass. 
445. In my opinion, some action by the House is required to 
render the resignation effective. As no precept for a special 
election to fill a vacancy can issue without an order of the House, 
this view produces no sensible incon\'enience. Opinion of the 
Attorney-General to the Speaker of the House of Representa- 
tives, June 15, 1921 (VI Op. Atty.-Gen. 214). 

Mass. Const., pt. 2d, c. I, § III, art. X, provides, in part: — 

The house of representatives shall be the judge of the returns, elec- 
tions, and qualifications of its own members, as pointed out in the 
constitution; . . . 

No court possesses jurisdiction to determine whether a mem- 
ber of the House is disqualified, or to remove him for a disquali- 
fication if such exists. That power is vested exclusively in the 
House. Dinan v. Sicig, 22.3 Mass. 516. But while the power 
of the House over the subject is absolute, and is subject to no 



360 OPINIONS OF THE ATTORNEY-GENERAL. 

review, it may be proper to add that the House has been accus- 
.tomed in such cases to follow the rules of law. Opinion of the 
Attorney-General to the Speaker of the House of Representatives, 
June 15, 1921 (VI Op. Atty.-Gen. 214); I Op. Atty.-Gen. 3, 8. 

In view of Amendment VIII I am of opinion that in the present 
case the House may properly accept the "resignation" or de- 
clare the seat vacant. As the member became onl}' a de facto 
member on Oct. 10, 1921, he is not entitled to any salary or 
compensation subsequent to that date. Phelon v. Granville, 
140 Mass. 386; DoUiver v. Parks, 136 Mass. 499. 



State Officers — Judges of Certain Courts — District 
Attorneys — Duty to furnish Information to the 
SuPER-\^isoR of Administration. 

The words "every state officer, department or head thereof," as used in G. L., 
c. 30, § 38, when construed in connection with Mass. Const. Amend. LXVI, 
and G. L., c. 30, § 1, are confined to officers of the executive branch and do 
not include officers of the judicial branch. 

G. L., c. 30, § 38, does not require the Supreme Judicial Court, the Superior Court, 
the Land Court and courts of probate and insolvency to furnish information 
to the Supervisor of Administration. 

Although district attorneys are not "officers of the commonwealth," within the 
meaning of Mass. Const., pt. 2d, c. I, § II, art. VIII, they are "state officers," 
within the meaning of G. L., c. 30, § 38, and must furnish information pre- 
scribed by that section to the Supervisor of Administration. 

vUor''ofr'i^^"^' You inquire whether the Supreme Judicial Court, the Su- 

AdminMration. ^^^-^^^ Court, the courts of probatc and insolvency, the Land 

ecem^r . (^^^j.^ ^^^ ^]^g district attorneys are within the meaning of the 

phrase "every state officer, department or head thereof," as 

employed in G. L., c. 30, § 38, which provides as follows: — 

Every state officer, department or head thereof shall, whenever re- 
quired by the supervisor, furnish him with such information as he pre- 
• scribes concerning all officials and employees of tlie commonwealth 
employed in or by such office or department for whose services money 
has been paid by the commonwealth. 

Gen. St. 1916, c. 296, abolished the Commission on Economy 
and Efficiencv and the State Board of Publication and vested 



J. WESTON ALLEN, ATTORNEY-GENERAL. 361 

their powers in the Supervisor of Administration, to whom the 
word " him " in the above section refers. See now G. L., c. 7. On 
Nov. 5, 1918, the people adopted Amendment LXVI, which pro- 
vided, in part, that on or before Jan. 1, 1921, "the executive and 
administrative work of the commonwealth shall be organized in 
not more than twenty departments." This was done by Gen. 
St. 1919, c. 350. G. L., c. 30, contains general provisions relative 
to State departments, commissions, officers and employees. Sec- 
tion 1 reads as follows : — 

The following words, as used in this chapter, shall have the following 
meanings, unless the context otherwise requires: 

"Departments," except in section tw^o, all the departments of the 
comm.onwealth, except the departments of banking and insurance and 
of civil service and registration but including in lieu thereof the divisions 
of banks and loan agencies, of insurance, of savings bank Hfe insurance 
and of civil service and the several boards serving in the division of 
registration of the department of civil service and registration, and 
also including the metropolitan district commission. 

"Supervisor," supervisor of administration. 

Section 38 must be read with and is restrained by Amendment 
LXVI, Gen. St. 1919, c. 350, and the definition of "departments" 
contained in the above section. When so construed, it is plain 
that the words "every state officer, department or head thereof" 
are confined to the executive branch of the government and do not 
include the judicial branch. This construction is confirmed by 
G. L., c. 30, § 45, which provides that the Supervisor shall classify 
"all appointive offices and positions in the government of the 
commonwealth, except those in the judicial branch and those in 
the legislative branch," with an exception in the latter branch 
not here material. I am therefore of opinion that section 38 does 
not apply to the courts named in your inquiry. 

Mass. Const. Amend. XIX provides, in substance, that district 
attorneys shall be chosen by the people of the several districts 
for such term of office as the Legislature shall prescribe. Although 
they are paid by the Commonwealth and may interchange official 
duties, their duties are ordinarily of local character. G. L., c. 12, 
§ 27; Commonwealth v. Beaman, 8 Gray, 497; Parker v. May, 



362 OPINIONS OF THE ATTORNEY-GENERAL. 

5 Cush. 336, 339-340; Attorney-GeneraJ v. Tufts, 239 Mass. 458. 
They are not "officers of the commonweahh" who can be re- 
moved only by impeachment. G. L., c. 211, § 4; Attorney-General 
V. Tvfts, su-pra. On the other hand, the powers and duties of 
district attorneys are prescribed by G. L., c. 12, which also defines 
and declares certain of the powers and duties of the Attorney- 
General. To him, as the chief law officer of the Commonwealth, 
they are in many respects subject. Commomcealfh v. Kozloivsky, 
238 Mass. 379. The Department of the Attorney-General is one 
of the administrative departments provided for and classified by 
Gen. St. 1919, c. 350, § 33. In an opinion rendered to you on Dec. 
27, 1920, I advised you that until G. L., c. 12, § 2, took effect on 
Dec. 31, 1920, an increase in the salary of an Assistant Attorney- 
General required the approval of the Supervisor. Under these 
circumstances, I am of opinion that even though a district at- 
torney is not "an officer of the Commonwealth," within the 
meaning of Mass. Const., pt. 2d, c. I, § II, art. VIII, he is within 
the words "state officer" as employed in G. L., c. 30, § 38. 



Constitutional Law — Appropriation of Public Funds — 
Public Purpose — State House — Assignment of Lo- 
cation — Veterans of Foreign Wars — Furnishings. 

The temporary locations for the Massachusetts Department of the Veterans of 
Foreign Wars assigned, under G. L., c. 8, § 17, as amended by St. 1921, 
c. 459, by the Superintendent of Buildings, are to be furnished by the Super- 
intendent. 

The statute providing for the assignment of a location in the State House for the 
free use of the Veterans of Foreign W'ars is constitutional, for the assignment 
of the space for the preservation of relics and records of war is for a public 
purpose. 

tendenfoT'^"''' You havc rcqucstcd my opinion as to whether or not the quarters 
Buiidmgs. ^^ i^g assigned to the Massachusetts Department of the Veterans 
ecem^r . . ^^ Forcigu Wars under the provisions of G. L., c. 8, § 17, as amended 
by St. 1921, c. 459, are to be furnished by your department. 

The essential provisions of the statute referred to are as 
follows : — 



J. WESTON ALLEN, ATTORNEY-GENERAL. 363 

There shall be set apart suitably furnished rooms in the state house 
for the use of the Grand Army of the Republic of the department of 
Massachusetts and the Massachusetts department of The American 
Legion, respectivelj^, and there may be assigned by the superintendent, 
with the approval of the governor and council, certain spaces in the 
state house, suitably furnished, for the use of the Massachusetts depart- 
ment of the United Spanish War Veterans, and temporary locations 
for the Massachus.etts department of the Veterans of P'oreign Wars 
shall be assigned by the superintendent within the rooms or spaces set 
apart for the Massachusetts department of The American Legion, such 
rooms or spaces to be under the charge of the state commanders of the 
respective departments, subject to this chapter. 

As it was provided that the locations for the Veterans of Foreign 
Wars are to be assigned by you within the rooms or spaces set 
apart for The American Legion, and it has been provided that the 
rooms set apart for The American Legion are to be suitably fur- 
nished, it necessarily follows that the space allotted to the Veterans 
of Foreign Wars is to be furnished. 

Your inquiry necessarily draws in question your authority to 
expend public money to furnish these quarters. This question 
cannot be answered without considering the constitutionality 
of the act. This statute contains provisions as to preservation 
of relics and records, similar to those of House Bill No. 1445, which 
related to quarters in the State House for the use of the United 
Spanish War Veterans. This department advised that House 
Bill No. 1445 was constitutional. V Op. Atty.-Gen. 526. For the 
reasons there stated, the present act is not, in my opinion, open to 
constitutional objection. 



364 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Com- 
missioner 
of Public 
Health. 

1921 
December 22. 



Appropriation — Neponset Valley Improyement — Payment 
FOR Construction Work in Lieu or Damages. 

The balance of an appropriation made by the Legislature in 1911 for damages 
caused by the taking of land, easements or rights in land, in connection with 
the protection of the public health in the valley of the Neponset River, can 
be paid out of the treasury only as money for such damages, and cannot be 
used for certain construction work in favor of landowners in lieu of the pay- 
ment of money for damages. 

You have requested my opinion upon a question of law arising 
out of an opinion given to you under date of Sept. 20, 1921, relative 
to the disposition of a balance remaining from an appropriation 
for land damages under St. 1911, c. 655, § 10, which had to do 
with the protection of the public health in the valley of the Nepon- 
set River. You state that " when the new appropriation of $3,000 
was made by the Legislature of 1921, it was with the understanding 
that the balance of the 1911 appropriation was to be used in 
addition to the appropriation of this year in the construction of 
bridges as payment or compensation for damages arising under 
the 1911 act." Your specific question is as to whether or not the 
balance of the 1911 appropriation can be used for work to be 
constructed as payment or compensation for, or in lieu of, land 
damages arising under the 1911 act. 

Under the authority of the 1911 statute you made takings of 
certain parcels of land bordering on the Neponset River. 

The fee in such lands thus having passed to the Common- 
wealth, the owners of property rights in the lands became pos- 
sessed of a vested right. This vested right consisted of the con- 
stitutional right to reasonable compensation and of the statutory 
right to have it assessed and paid in money. Hellen v. Medford, 
188 Mass. 42. 

In the case of Commonwealth v. Peters, 2 Mass. 125, it was 
decided that the Commonwealth had no power to award a land- 
owner anything but money in compensation for his damages in 
laying out a highway over his land. The court, in that decision, 
pointed out that the statute explicitly provided that damages 
were to be paid in money, and, that being the case, the Com- 



J. WESTON ALLEN, ATTORNEY-GENERAL. 365 

monwealth could not compensate the owner by giving him title 
to other land, because it would not be the satisfaction which 
the law had determined should be given. 

The same situation exists in the present case. The Legislature, 
by St. 1911, c. 655, § 10, provided that damages shall be paid in 
money, the section reading as follows : — 

The sum of five thousand dollars is hereby appropriated for damages 
arising under this act, caused by the taking of land, easements or rights 
in lands. 

As stated above, a landowner can insist upon the paj-ment of 
money as compensation, but in answering your question it is 
necessary to consider the situation where a landowner is willing 
to waive the constitutional protection of his property rights, 
and consents to the payment of his land damages in service or 
in kind. These facts make it necessary to determine what 
powers, if any, the Department of Public Health has to com- 
promise a landowner's claim by making compensation in service 
or in kind. 

It has been decided that an executive officer has no inherent 
power to compromise a contested right for a valuable consider- 
ation. William Cramp d' Sons Co. v. United States, 216 U. S. 
494; United States v. Beebe, 180 U. S. 343. 

For your department to compromise upon any basis, there 
must be valid statutory authority to that effect. An exami- 
nation of your powers under the Neponset Valley act, so called, 
discloses no authority conferred upon your department to com- 
promise with landowners upon the basis of payment in service 
or in kind. In fact, the sole medium made available to the 
department by the Legislature in settling damages with land- 
owners is that of money. 

Accordingly, it is my opinion that the balance of the 1911 ap- 
propriation can be paid out of the treasury only as money for 
damages caused by takings by eminent domain, and that said 
balance cannot be used for certain construction work in favor 
of landowners in lieu of the payment of money for damages. 



366 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Com- 
missioner of 
Education. 

1921 
December 22. 



Patents — Right of the Massachusetts AcRicrLTrRAL Col- 
lege TO use a Patented Formula for Experimental 
Purposes. 

Use of a patented article, formula or process for experimental purposes, without 
the consent of the patentee or his assigns, would be unjustifiable, constituting 
an infringement of the patent, even though there be no sale or profit derived 
from such use. 

You inquire whether or not the Massachusetts Agricultural 
College has a right to use for experimental purposes the formula 
for the treatment of butter and ice cream with carbon dioxid, as 
patented by the persons named in your letter. 

It appears that the ice-cjream freezing process in question was 
patented on Jan. 27, 1920, and the process of making butter on 
July 12, 1921. You do not state whether or not the patentees 
are or have been employed by or connected with said college, 
and this opinion is accordingly rendered on the assumption that 
they have not been so connected. I also assume that the use 
of said formula is purely for experimental purposes, and the 
products thereof are not to be sold or put into actual use. 

The Constitution of the United States, article I, section 8, 
gives Congress power "to promote the progress of science and 
useful arts, by securing for limited times to authors and inventors 
the exclusive right to their respective writings and discoveries." 
The patent act provides that every patent shall contain a grant 
to the patentee, his heirs and assigns, for a certain term of years, 
of "the exclusive right to make, use and vend the invention or 
discovery throughout the United States." 

It has, accordingly, been repeatedly declared by the Supreme 
Court of the United States that neither the United States nor 
any State has any more right than a private person to use a 
patented invention without license of the patentee or making 
compensation to him. United States v. Burns, 12 Wall, 246; 
HoUister v. Benedict ct- Burnham Mfg. Co., 113 U. S. 59; United 
States V. Palmer, 128 U. S. 262; Belknap v. Schild, 161 U. S. 10; 
McCormick Ilarvestinfi Machine Co. v. Aultman Co., 169 U. S. 606; 
Internaticnal Postal Supply Co. v. Bruce, 19-1 U. S. 601, 607. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 3&7 

It is well settled that the exclusive privilege of a patentee is to 
be protected to the full extent of his invention and grant, equally 
against an improver and the general public. See Kokomo Steel 
& Wire Co. V. Columbia Wire Co., 200 U. S. 621. 

There is perhaps no exact definition of the term "infringe- 
ment," but speaking broadly it relates to a condition which 
arises out of the combination of events, the creation of the mo- 
nopoly by the government and the invasion of that monopoly 
by the person. Thus, infringement may consist either in making, 
using or selling the invention, or in all three. See Birdsell v. 
Shaliol, 112 U. S. 485. Accordingly, it is held that use of a 
patented article or process for personal benefit or convenience is 
an infringement, even though there be no sale or profit derived 
from such use. See Beedle v. Bennett, 122 U. S. 71. 

There is some authority for the proposition that "the making 
of a patented invention for amusement or scientific investiga- 
tion, with no intent of using it practically, is not an actionable in- 
fringement; but it is otherwise where the thing made is sold or 
put into actual use." 30 Cyc. 972, and cases cited. In view of 
what appears to be the great weight of authority, however, I 
am of the opinion that the Massachusetts Agricultural College 
would not be justified in using, even for experimental purposes, 
the formula referred to, unless it first procures the consent of 
said patentees or their assignees. 



368 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Com- 
missioner of 
Corporations 
and Taxation. 

1921 
December 23. 



Taxation — Legacies and Successions — Exemptions ■ — Gift 
TO be used for Such Charitable Purposes as the Donee 

MAY DEEM BeST. 

Exemptions from taxation are not to be lightly inferred even in the case of a 
charity. 

A gift by will to an individual "to be used by him for such charitable purposes 
as he may deem best" is not exempt from an inheritance tax, under Gen. St. 
1916, c. 268, § 1 (now G. L., c. 59, § 1), since the gift is neither "to or for the 
use of charitable . . . societies or institutions, the property of which is by 
law exempt from taxation," nor "for or upon trust for any charitable purpose 
to be carried out within this commonwealth." 

You direct my attention to the eleventh paragraph of the will 
of A. Paul Keith, who died domiciled in this Commonwealth in 
October, 1918, and inquire whether the bequest made by said 
paragraph to Cardinal William O'Connell is subject to an in- 
heritance tax. 

The eleventh paragraph of the will provides : — 

Eleventh: All the rest, residue and remainder of my property and 
estate, real, personal and mixed, of every name, nature and description, 
and wheresoever situated, I give, devise and bequeath unto His Emi- 
nence William O'Connell of Boston, Massachusetts, a Cardinal of the 
Holy Eoman Catholic Church, and to the President and Fellows of 
Harvard College, a Massachusetts corporation, to be divided between 
him and that corporation in equal shares, share and share alike, and I 
direct that what is received by him shall be used by him in his discre- 
tion for such charitable purposes as he may deem best, in memory of 
my mother, Marj^ Catherine Keith, and that what is received by the 
President and Fellows of Harvard College shall be devoted by that 
corporation to the general purposes of Harvard University. 



As the testator died in 1918 the statute applicable is Gen. 
St. 1916, c. 268, § 1, which excepts from the inheritance tax 
gifts — 

to or for the use of charital^le, educational or religious societies or in- 
stitutions, the property of which is by the laws of this commonwealth 
exempt from taxation or for or upon trust for any charitable purposes, 
to be carried out within this commonwealth, or to or for the use of the 
commonwealth or any city or town within this commonwealth for 
public purposes. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 369 

Exemptions from taxation are not to be lightly inferred, but 
must appear plainly either from the express words or necessary 
intendment of the statute. Wheelwright v. Tax Commissioner, 
235 Mass. 584, 586. The rule applies to exemptions in favor of 
charity. Milford v. County Commissioners, 213 Mass. 162, 
165; Hooper v. Shaw, 176 Mass. 190. The present statute ex- 
empts three classes of charitable gifts, each class being subject 
to definite and express limitations. As was said in Pierce v. 
Stevens, 205 Mass. 219, 221 : — 

The question is whether this gift is within either of the exemptions 
created by the statute. These are three in number. The first is of 
gifts "to or for the use of charitable, educational or relipous societies 
or institutions, the property of which is by law exempt from taxation"; 
the second is of property given "to a trustee or trustees for public 
charitable purposes within the Commonwealth"; and the third is of 
property given "to or for the use of a city or town for public purposes." 
R. L., c. 15, § 1. 

The common ground for all three exemptions is the benefit 
which accrues to the public of this Commonwealth from the use 
of that which is exempted. See Davis v. Treasurer and Receiver- 
General, 208 Mass. 343, 345. Hence, each exemption is subject 
to a limitation which attaches the exempted gift in some way to 
the Commonwealth. 

A bequest to or for the use of a charitable, educational or religious 
society or institution is not exempt under the first clause unless 
the property of such society or institution is " by the laws of this 
commonwealth exempt from taxation." First Universalist Society 
V. Bradford, 185 Mass. 310. This clause does not exempt testa- 
mentary gifts to charitable societies or institutions in other States. 
Minot V. Winthrop, 162 Mass. 113; Rice v. Bradford, 180 Mass. 
545; Batt v. Treasurer and Receiver-General, 209 Mass. 319, 320. 
Nevertheless, a bequest to or for the use of a Massachusetts 
charitable society or institution of the proper character is exempt, 
because within the precise words of the exemption, even though 
such society or institution carries on activities outside the Com- 
monwealth. Balchv. Shaw, 174 Mass. 144; Parkhurstv. Treasurer 
and Receiver-General, 228 Mass. 196. To restrict this exemption 



)70 OPINIONS OF THE ATTORNEY-GENERAL. 

to those charitable societies and institutions which are both or- 
ganized under the laws of this Commonwealth and also restrict 
their activities wholly within its borders would superadd a limita- 
tion which the Legislature has not made. 

The exemption of gifts "to or for the use of the commonwealth 
or any city or town within this commonwealth for public pur- 
poses" is restricted by the express words of the statute to Massa- 
chusetts cities and towns. Even before this restriction was de- 
clared in express words, by St. 1909, c, 527, § 1, the earlier act had 
the same meaning. Davis v. Treasurer and Receiver-General, 208 
Mass. 343. 

Hooper v. Shaw, 176 Mass. 190, decided in 1900, held that a 
testamentary gift in trust for public charitable purposes to be 
carried out within this Commonwealth was not within the exemp- 
tion conferred by the first clause, because neither donee nor bene- 
ficiary was a "society or institution." St. 1906, c. 436, § 1, added 
a further exemption of gifts "to a trustee or trustees for charitable 
purposes within the commonwealth." This exemption was ex- 
tended by St. 1907, c. 563, § 1, to include gifts "for or upon trust 
for- any charitable purposes," but the restriction to pm*poses "to 
be carried out within this commonwealth" was restored by St. 
1909, c. 527, § 1, and has been preserved ever since. G. L., c. 59, 
§ 1. The distinction between this exemption and the exemp- 
tion made by the first clause is vital. Under the first clause the 
donee or beneficiary must be a Massachusetts society or institu- 
tion of the proper character. Hooper v. Shaw, 176 Mass. 190, 
Under the second clause the charitable purpose must be carried 
out within the Commonwealth. Pierce v. Stevens, 205 Mass. 219. 

The exemption which embraces gifts to or for the use of cities or 
towns manifestly does not apply to the present case. In an 
opinion rendered to you on Aug. 26, 1921, I advised you that this 
bequest is to Cardinal O'Connell in his personal capacity, and not 
to the Roman Catholic Archbishop of Boston, who is created a 
corporation sole by St. 1896, c. 506, § 1. I further advised you 
that as the will provides that " what is received by him Cardinal 
O'Connell] shall be used by him in his discretion for such chari- 
table purposes as he shall deem best," the trust is for charitable 



J. WESTON ALLEN, ATTORNEY-GENERAL. 371 

purposes generally, to be selected by the Cardinal, and not for 
any specific institution, society or corporation. Such a bequest is 
plainly not within the provision which exempts gifts to or for the 
use of charitable "societies or institutions the property of which 
is by the laws of this commonwealth exempt from taxation." 
Hooper v. Shaw, 176 Mass. 190. There is nothing in the will which 
constrains the Cardinal to carry out this charity within this Com- 
monwealth. The testator may or may not have anticipated that 
the Cardinal would probably apply the fund to Massachusetts 
charities. But an unexpressed anticipation of the testator, if he 
had it, cannot restrain or control the broad power of selection 
which he has conferred by express words. The taxability of this 
bequest is determined at the moment of death. Hooper v. Brad- 
ford, 178 Mass. 95; Pierce v. Steveris, 205 Mass. 219. A taxable 
gift for a foreign charitable purpose cannot be brought within the 
exemption by subsequently creating a Massachusetts charitable 
corporation to execute it. Pierce v. Stevens, 205 Mass. 219. In 
my opinion, this bequest is not and cannot be brought within the 
exemption conferred by the second clause upon gifts " for or upon 
trust for any charitable purposes to be carried out within this 
commonwealth." I therefore advise you that the bequest to 
Cardinal O'Connell is subject to an inheritance tax under Gen. 
St. 1916, c. 268. 

Justice of the Peace — Notary Public — Time of Residence 
IN Massachusetts. 

There is no legal requirement as to time of residence in Massachusetts before a 
person may become a justice of the peace or notary public. 

You request my opinion as to the time of residence in Massa- To the 
chusetts required before one may become a justice of the peace ^ 1921 
or notary public. 

Mass. Const., pt. 2d, c. II, § I, art. IX, provides as follows: — 

All judicial officers, (the attorney-general,) the solicitor-general, (all 
sheriffs,) coroners, (and registers of probate,) shall be nominated and 
appointed by the governor, by and with the advice and consent of the 
council; and every such nomination shall be made by the governor, 
and made at least seven days prior to such appointment. 



December 27. 



372 OPINIONS OF THE ATTORNEY-GENERAL. 

Mass. Const. Amend. IV, provides: — 

Notaries public shall be appointed bj^ the governor in the same 
manner as judicial officers are appointed. . . . 

Although the Constitution expressly provides that residence 
for a certain fixed period of time within the Commonwealth is a 
prerequisite to the election or appointment of many officers (for 
example, Governor, Mass. Const., pt. 2d, c. II, § I, art. II; Lieu- 
tenant-Governor, Mass. Const., pt. 2d, c. II, § II, art. I; Council- 
lors, Mass. Const. Amend. XVI; Senators, Mass. Const. Amend. 
XXII; Representatives, Mass. Const. Amend. XXI; Secretary, 
Treasurer and Receiver-General, Auditor and Attorney-General, 
Mass. Const. Amend. XVII), nevertheless, nowhere in the Con- 
stitution or in the General Laws is there to be found any require- 
ment as to time of residence in Massachusetts before a person 
may become a justice of the peace or notary public. 



Medical Registration — Pathologist. 

A person acting as a pathologist should be registered under G. L., c. 112, §§ 2-12, 
providing for medical registration. 

m?ssk)nw°S' ^*^^ rcqucst an opinion on the following question : — 

Civil Service. 

December 27. Should a person employed by the Department of Mental Diseases, 
for the purpose of making autopsies, reporting on findings and acting 
as a pathologist, be registered under the law providing for medical 
registration? 

G. L., c. 112, §§ 2-12, provide for the registration of physicians 
and surgeons. Section 6 provides, in part, as follows: — 

Whoever, not being lawfully authorized to practice medicine within 
the commonwealth and registered under section two, . . . holds himself 
out as a practitioner of medicine or practices or attempts to practice 
medicine in an»y of its branches, . . . shall be punished bj^ a fine of not 
less than one hundred nor more than five hundred dollars or by im- 
prisonment for three months, or both. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 373 

The Standard Dictionary defines a pathologist as "one who is 
learned or skilled in pathology." Pathology is therein defined as 
"the branch of medical science that treats of morbid conditions, 
their causes, symptoms, nature, physiology and anatomy. . . . 
It embraces also as special departments morbid anatomy, etiology, 
nosology, and therapeutics." 

In the case of Commonwealth v. Zimmerman, 221 Mass. 184, 
the court said : — 

Medicine relates to the prevention, cure and alleviation of disease, 
the repair of injury, or treatment of abnormal or unusual states of the 
body and their restoration to a healthful condition. It includes a broad 
field. It is not confined to the administering of medicinal substances 
or the use of surgical or other instruments. It comprehends "a knowl- 
edge, not only of the functions of the organs of the human bodj'', but 
also of the diseases to which these organs are subject, and of the laws 
of health and the modes of living which tend to avert or overcome dis- 
ease, as well as of the specific methods of treatment that are most effec- 
tive in promoting cures." ... In order to practice medicine one need 
not cover the entire field of the science. If he devotes himself to a A'ery 
restricted part of it, he still may be found to practice medicine. It is 
matter of common knowledge that there has been great specialization 
in that profession in recent years. To that effect are the decisions. 

To the same effect see Commonwealth v. Jewelle, 199 Mass. 558; 
Commonwealth v. Porn, 196 Mass. 326; People v. Gordon, 194 111. 
560; People v. Allcutt, 189 N. Y. 517. 

It is therefore my opinion that a person " acting as a pathologist " 
should be registered under the law providing for medical 
registration. 

Armories — Office Furniture and Equipment — Chief 
Quartermaster — Superintendent of Buildings. 

Under G. L., c. 33, § 44, the care and maintenance of all armories belonging to 
the Commonwealth, including the purchase of furniture and equipment there- 
for, devolves upon the chief quartermaster. 

On behalf of the Armory Commission you request my opinion to the Adju- 
as to whom authority has been given to purchase certain furniture 1922 

1 . en • January 5. 

and equipment tor State armories. 



374 OPINIONS OF THE ATTORNEY-GENERAL. 

In your letter you point out that G. L., c. 33, § 45, provides that 
the Armory Commission shall erect, furnish and equip armories, 
and that, under G. L., c. 8, § 6, it is provided that the Superin- 
tendent of Buildings "shall have charge of purchasing all office 
furniture, fixtures, equipment, stationery and office supplies for 
all executive and administrative departments and officers. . . ." 

At the outset, let me call to your attention that by G. L., c. 33, 
§ 45, it is provided that the Armory Commissioners " shall rebuild, 
remodel or repair armories of the first class injured or destroyed 
by fire, and may reconstruct, remodel, enlarge or otherwise improve 
existing state armories, if they deem the needs of the service so 
require, and shall construct additional armories until the volun- 
teer militia shall be provided with adequate quarters. They shall 
designate the location of armories so to be constructed and shall 
thereupon, on behalf of the commonwealth, . . . acquire . . . 
suitable lots of land . . . , afid shall erect, furnish and equip thereon 
armories sufficient for one or more companies of militia. . . ." 
You will note, however, that by the preceding section (§ 44) it is 
provided that, on the completion and acceptance of all armories 
erected by the Commonwealth, the care and maintenance thereof, 
as well as the care and maintenance of all armories belonging to 
the Commonwealth, shall devolve upon the chief quartermaster. 

Previously the provision as to the care and maintenance of 
armories devolving upon the chief quartermaster was found in 
Gen. St. 1917, c. 327, § 40, and the provision as to the Superin- 
tendent of Buildings having charge of purchasing supplies was 
found in Gen. St. 1919, c. 350, § 19. 

When the statutes of the Commonwealth were revised by the 
commissioners and consolidated into the General Laws, both 
these statutory provisions were brought forward and made a 
part of the General Laws, as above stated. Both, therefore, must 
be taken as independent and co-existing statutes: the one, G. L., 
c. 33, § 44, relating to a particular field of purchasing office sup- 
plies, to wit, for the armories belonging to the Commonwealth, 
the other, G. L., c. 8, § 6, relating to the purchasing of office 
supplies in general. This being so, the rule of construction, that 
when the provisions of a particular statute conflict with those of 



J. WESTON ALLEN, ATTORNEY-GENERAL. 375 

a general statute they are in force as to the particular matters 
with reference to which they are enacted, should be applied. 

x\ccordingly, in my judgment, the chief quartermaster has 
charge of purchasing the furniture and equipment in question for 
the State armory, the care and maintenance of which have been 
placed upon him by a particular statute. 



Billboard Advertising — Rules and Regulations of the 
Division of Highways — Public Ways — Permits. 

Where outdoor advertising signs and devices project into or over public ways in 
any city or town, the duty of granting permits for the placing and main- 
tenance of such signs rests with the municipal board or officer having charge 
of the laying out of public ways. 

You request my opinion upon a question of law based on the xotheCom- 

p II • i> . missioner of 

lollowmg tacts : — PubUc works. 

1922 

Your department is in receipt of two applications for permis- January ii. 
sion to erect advertising signs which will be located inside the 
highway location of the streets of the city of Boston. One of 
these signs is to be located at the corner of Hollis and Tremont 
streets, the other is to be located on the second story of a build- 
ing at the corner of Tremont and Eliot streets. 

You ask whether or not the signs in question can be placed 
within highway locations, contrary to your rules and regulations 
concerning outdoor advertising. 

G. L., c. 93, §§ 29 to 33, provide, so far as is pertinent to your 
question, that the Division of Highways shall make rules and 
regulations for the proper control and restriction of billboards, 
signs and other advertising devices on public ways or on private 
property within public view of any highway, public park or res- 
ervation, and that no one shall post, erect, display or maintain 
on any public way or on private property within public view 
from any highway, public park or reservation any billboard or 
other advertising device, unless such billboards or device con- 
forms to the rules and regulations. Your rules for the erection 
of advertising signs and devices, under date of June 29, 1921, 



376 OPINIONS OF THE ATTORNEY-GENERAL. 

provide, by section 5, clause A, that "no outdoor advertising 
shall be permitted within the bounds of any highway," 
G. L., c. 85, § 8, provides as follows: — • 

The municipal board or officer having charge of the laying out of 
public ways may grant permits for the placing and maintaining of 
signs, advertising devices, clocks, marquees, permanent awnings and 
other like structures projecting into or placed on or over public ways 
in its town, and may fix the fees therefor, not exceeding one dollar for 
any one permit, and may make rules and regulations relating thereto, 
and prescribe the penalties for a breach of any such rules and regula- 
tions, not exceeding five dollars for each day during which any such 
structure is placed or maintained contrary to the rules and regulations 
so made, after five days' notice to remove the same has been given by 
such board or officer, or by a poUce officer of the town. All such struc- 
tures shall be constructed, and, when attached to a building, shall be 
connected therewith, in accordance with the requirements of the in- 
spector of buildings, building commissioner or other board or officer 
having like authority in the town. 

Previously the statutory provisions as to permits for signs and 
other structures projecting into ways were found in Gen. St. 
1915, c. 176, and the provisions for the regulation of advertising 
signs and devices within the public view were found in St. 1920, 
c. 545. When the statutes of the Commonwealth were revised 
by the commissioners and consolidated into the General Laws 
both these statutory provisions were brought forward and made 
a part of the General Laws, as above stated. Both, therefore, 
must be taken as independent and co-existing statutes: the one 
(G. L., c. 85, § 8) relating to particular signs, advertising devices 
and other structures projecting into or placed on or over public 
ways in a city or town, and the granting of permits therefor 
by the local authorities; the other (G. L., c. 93, §§ 29 to 33) 
relating to the control and restriction of billboards, signs, and 
other advertising devices on public ways or on private prop- 
erty within public view in general. This being so, the rule of 
construction, that where a matter is within the language of a 
general statute and also within that of a special enactment the 
presumption is that the special enactment shall control, is to be 
applied. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 377 

The signs in question, when erected, will project into or over 
public ways in the city of Boston, and the duty of granting per- 
mits for the placing and maintaining of the same is placed upon 
the municipal board or officer of the city of Boston having charge 
of the laying out of public ways. 



Constitutional Law — Vacancy in the Executive Council 
— Selection of Successor. 

Where a member of the Executive Council dies upon the day that the General 
Court convenes, but some hours before the General Court does in fact con- 
vene, and such vacancy is not filled by the Governor and Council before the 
Legislature fomes into session, such vacancy is to be filled by concurrent 
vote of the Senate and House of Representatives in the manner prescribed by 
Mass. Const. Amend. XXV. 

I have the honor to acknowledge receipt of the following order : — xo the Senate 

1922' 

Ordered. That the Senate request the opinion of the Attorney-General '^ ""^'^^ ' 
as to whether the vacancy existing in the Executive Council shall, under 
the Constitution, be filled by appointment by the Governor or })y con- 
current vote of the Senate and House of Representatives. 

Your question is answered by Mass. Const. Amend. XXV, 
which provides : — 

In case of a vacancj^ in the council, from a failure of election, or other 
cause, the senate and house of representatives shall, by concurrent 
vote, choose some eligible person from the people of the district wherein 
such vacancy occurs, to fill that office. If such vacancy shall happen 
when the legislature is not in session, the governor, with the advice 
and consent of the council, may fill the same by appointment of some 
eligible person. 

I am informed that the vacancy is due to the death of a coun- 
cillor at or about 9 o'clock in the morning of the day when the 
General Court convened. It is unnecessary to determine whether, 
during the interim between the death and the meeting of the 
General Court, the Governor might have filled the vacancy, with 
the advice and consent of the Council. It is sufficient that he 
did not do so, and that the vacancy still existed at the time when 



378 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Com- 
missioner of 
Conservation. 

1922 
January 13. 



the General Court convened. Under these circumstances, I am 
of opinion that the vacancy existing in the Executive Council 
should be filled by concurrent vote of the Senate and House of 
Representatives. 

Division or Fisheries and Game — Employee — Compensa- 
tion — Federal Board of Vocational Education. 

Under G. L., c. 29, § 27, the Commissioner of Conservation has no right to em- 
ploy in the Division of Fisheries and Game a deputy inspector of fish when 
there are no funds available for the salary thereof, although the Federal Board 
of Vocational Education agrees to pay such salary and necessary traveling 
expenses until such time as a sufficient appropriation is made by the State. 

You request my opinion as to whether or not you have authority 
to employ in the Division of Fisheries and Game, as a deputy 
inspector of fish, a World War veteran who is a citizen of Massa- 
chusetts and first on the civil service eligible list for this position, 
when a vacancy may occur or more deputy inspectors of fish are 
added to the force, although there are no funds available in your 
division for the salary of another deputy inspector of fish. You 
state that the Federal Board of Vocational Education agrees to 
pay such salary and necessary traveling expenses until such time 
as sufficient appropriation may be made by the State allowing 
the inspector of fish to increase his force of deputies or put on a 
temporary deputy. Your question resolves itself to this: Can a 
person be appointed to such position in the Commonwealth's 
employ while his compensation will be paid entirely by the United 
States government? 

G. L., c. 29, § 27, provides as follows: — 

No public officer or board shall incur a new or unusual expense, make 
a permanent contract, increase a salarj^ or employ a new clerk, assistant 
or other subordinate unless a sufficient appropriation to cover the 
expense thereof has been made by the general court. 



This provision of law would seem to answer your question, and 
it would seem that reasons of public policy as well would forbid a 
situation where an official or employee of the Commonwealth 
would thus be serving in a dual capacity. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 379 

I am aware that instances have arisen in the past where an em- 
ployee of the Commonwealth has been permitted to receive from 
the Federal government pay for overtime work performed for 
the latter. Such permission was based upon the fact that the 
overtime did not in any way interfere with the efficiency of the 
regular work of said employee for the Commonwealth, being done 
outside the hours of duty belonging to the Commonwealth. The 
decision in such cases, however, rests upon different facts from 
those presented in your communication, and I am consequently 
of the opinion that the statutory provision above quoted should 
be strictlv construed and adhered to. 



Retirement Association — Employees of the Norfolk 
County Tubercular Hospital and Norfolk County 
Agricultural School — Contributions by Employees. 

Employees of the Norfolk County Tubercular Hospital and the Norfolk County 
Agricultural School are employees of the county and members of the Retire- 
ment Association under the provisions of G. L., c. 32, §§20 and 22. 

Contributions to the association should be paid by said employees from the date 
upon which they became members, as defined in § 22. 

You request my opinion upon the following questions : — To the Com- 

missioner of 

Insurance. 

1. Are employees of the Norfolk County Tubercular Hospital and 1922 

the Norfolk County Agricultural School employees of the countj^, within " 

the meaning of G. L., c. 32, § 20? 

2. If the preceding question is answered in the affirmative, have 
such employees become members of the Retirement Associati(JU, under 
the provisions of section 22 of said chapter? 

3. If the foregoing question is answered in the affirmative, should 
contributions to the association be paid by said employees from the 
date upon which they became members under the provisions of said 
section 22, or is it permissible for the association to begin to accept 
their contributions running from the present date? 

From data submitted by you it appears that the aforesaid in- 
stitutions were established after the retirement act became effec- 
tive in Norfolk County, July 1, 1912. 

It is assumed that both the Norfolk County Tubercular Hospital 



380 OPINIONS OF THE ATTORNEY-GENERAL. 

and the Norfolk County Agricultural School are purely county 
institutions, since each is controlled by a board of public trustees, 
of which boards the county commissioners form a part. The 
employees in question are paid entirely from county funds raised 
by taxation. 

G. L., c. 32, § 20, defines "employees" (within the meaning of 
the retirement systems and pensions) as follows : — 

Permanent and regular employees in the direct service of the county 
whose sole or principal employment is in such service. 

Section 22 of said chapter provides : — 

Whenever a county shall have voted to establish a retirement sj'stera 
under section twenty-one, or corresponding provisions of earlier laws, 
a retirement association shall be organized as follows: 

(1) All emploj'ees of the county on the date when the retirement 
system is declared established by the issue of the certificate under sec- 
tion twenty-one may become members of the association. On the ex- 
piration of thirty days after said date, every such employee shall thereby 
become a member unless he shall have, within that period, sent notice 
in writing to the county commissioners or officers performing like duties 
that he does not wish to join the association. 

(2) All employees who enter the service of the county after the date 
when the system is declared established, except persons who have already 
passed the age of fifty-five, shall, upon completing ninety days of service, 
thereby become members. . . . 

I therefore answer questions 1 and 2 in the affirmative, and in 
answer to question 3 it is my opinion that it is not permissible for 
the association to begin to accept contributions of employees run- 
ning from the present date, but that contributions to the associa- 
tion should be paid by said employees from the date upon which 
they became members under the provisions of section 22. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 381 



Hunting or Fishing License — Unnaturalized Foreign-born 
Resident — Citizens. 

A native of the Philippine Islands, resident in this Commonwealth, who has not 

been naturalized and who does not own real estate assessed for taxation at 

not less than S500, is not entitled to a hunting or fishing license. 
Territory acquired by conquest or purchase does not, ipso facto, become a part 

of the United States, within the meaning of the Constitution. 
The Fourteenth Amendment is limited, with respect to citizenship, to persons born 

or naturalized in the United States. 
Natives of the Philippine Islands did not become, and are not, citizens of the 

United States. 

You have requested my opinion as to whether a native of the xotheCom- 
PhiHppine Islands, resident in this Commonwealth, who has never Conservation. 

ft-y y ^ ^ jg22 

been naturalized and who does not own real estate in this Com- Ja nuary 20. 
monwealth, is entitled to a hunting or fishing license. The ques- 
tion is whether such a person is an unnaturalized foreign-born 
resident, within the meaning of G. L., c. 131, § 7, which reads as 
follows : — 

An unnaturalized foreign born resident owning real estate in the 
commonwealth assessed for taxation at not less than five hundred dollars 
may be granted a certificate of registration. He shall pay for such regis- 
tration a fee of fifteen dollars to the clerk of the town where he resides, 
or for a certificate to fish only a fee of one dollar to the clerk or a deputy 
registrar. 

Article IX of the Treaty of Peace with Spain, concluded at 
Paris, provides, in part, that — 

The civil rights and political status of the native inhabitants of the 
territories hereby ceded to the United States shall be determined by 
Congress. 

The act of July 1, 1902 (32 U. S. Stat. 691), reads, in part, as 
follows : — 

Sec. 1. . . . The provisions of section eighteen hundred and ninety- 
one of the Revised Statutes of eighteen hundred and seventy-eight 
shall not apply to the PhiHppine Islands. . , . 

Sec. 4. That all inhabitants of the Philippine Islands continuing 
to reside therein who were Spanish subjects on the eleventh day of 



382 OPINIONS OF THE ATTORNEY-GENERAL. 

April, eighteen hundred and ninety-nine, and then resided in said 
Islands, and their children born subsequent thereto, shall be deemed 
and held to be citizens of the Philippine Islands and as such entitled 
to the protection of the United States, except such as shall have elected 
to preserve their allegiance to the Crown of Spain in accordance with 
the provisions of the treaty of peace between the United States and 
Spain signed at Paris December tenth, eighteen hundred and ninety- 
eight. 

See also act of Aug. 29, 1916, c. 416, § 2 (U. S. Comp. Stat., 1916, 
§ 3809). 

U. S. Rev. Sts. of 1878, § 1891, referred to above, provides as 
follows : — 

The Constitution and all laws of the United States which are not 
locally inapplicable shall have the same force and effect within all the 
organized Territories, and in every Territory hereafter organized as 
elsewhere within the United States. 

Territory acquired by conquest or purchase does not, ipso facto, 
become a part of the United States, within the meaning of the 
Constitution. The Fourteenth Amendment is limited, with respect 
to citizenship, to persons born or naturalized in the United States, 
and is not extended to persons born in any place subject to the 
jurisdiction of the United States. Downes v. Bidwell, 182 U. S. 
244, 251; Dorr v. United States, 195 U. S. 138; Gonzales v. Wil- 
liams, 192 U. S. 1. It is thus clear that natives of the Philippine 
Islands did not become and are not citizens of the United States. 

I am therefore of the opinion that such persons residing in the 
Commonwealth, who have not been naturalized and who do 
not own real estate in the Commonwealth assessed for taxation 
at not less than $500, are not entitled to hunting or fishing licenses. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 383 



Constitutional Law — Eligibility of Women to be elected 

TO Congress. 

Lender U. S. Const., art. I, §§ 2 and 5, a woman is eligible to be elected as a rep- 
resentative to Congress. 

You inquire whether women are eHgible to be elected as rep- to the 
resentatives in Congress. The answer to your question depends ' 1922 



upon the Constitution of the United States. U. S. Const., art. 
I, § 2, provides, in part: — 

The house of representatives shall be composed of members chosen 
ever}'' second year b}'' the people of the several states, and the electors 
in each state shall have the qualifications requisite for electors of the 
most numerous branch of the state legislature. 

No person shall be a representative who shall not have attained to 
the age of twenty-five years, and been seven years a citizen of the United 
States, and who shall not, when elected, be an inhabitant of the state 
in which he shall be chosen. 

Section 5 provides, in part: — 

Each house shall be the judge of the elections, returns and cjualifi- 
cations of its own members. . . . 

The Nineteenth Amendment to the Constitution of the I'nited 
States further provides: 

The right of citizens of the United States to vote shall not be denied 
or abridged by the United States or by any State on account of sex. 

Congress shall have power to enforce this article by appropriate 
legislation. 

Women are included among the electorate of this Common- 
wealth by the terms of our Constitution, as modified by the 
terms of the Nineteenth Amendment to the Constitution of the 
United States. Opinion of the Justices, 237 Mass. 591. Under 
U. S. Const., art. I, § 2, they are entitled to vote for members of 
the national House of Representatives. Art. I, § 2, prescribes 
the express qualifications for membership in that body. Under 
art. I, § 5, that house is the judge of the qualifications of its own. 



January 27 



384 OPINIONS OF THE ATTORNEY-GENERAL. 

members. In re Loney, 134 U. S. 372, 373. See also Dinan v. 
Swig, 223 Mass. 516. 

Women have been elected to the national House of Repre- 
sentatives and have been permitted to take their seats as mem- 
bers. In my opinion, this constitutes a decision by that house, 
as the judge of the qualifications of its own members, that women 
are not impliedly excluded. The fact that, under the Consti- 
tution of this Commonwealth, construed in the light of decisions 
and advisory opinions of the Supreme Judicial Court, women are 
not eligible to election to the state House of Representatives has 
no bearing upon the construction placed by the national House 
of Representatives upon the Constitution of the United States. 
In my opinion, the decision of the national House admitting 
women to membership establishes that they are eligible to mem- 
bership. 



To the 
Treasu 
192: 
January 28 



State Finance — Public Moneys — Amount deposited in 
Any One Bank — How determined. 

Under G. L., c. 29, § 34, the "amount deposited" by the Treasurer and Receiver 
General in any one bank or trust company is determined either by the books 
of the bank, or by adding to the balance shown by the books of the Treasurer 
and Receiver-General all outstanding checks not known to have been certified 
at the instance of the holder or paid. 



Treasurer. G. L., c. 29, § 34, provides, in part: — 

1922 

The state treasurer may deposit any portion of the public moneys 
in his possession in such national banks, or trust companies, lawfully 
doing business in the commonwealth, as shall be approved at least once 
in three months by the governor and council; but the amount deposited 
in any one bank or trust company shall not at any one time exceed 
forty per cent of its paid up capital. . . . 

You inquire whether the "amount deposited" shall be ascer- 
tained by deducting from the amount on deposit, as shown by 
your check book, the amount of checks drawn and issued against 
such deposit, or from the bank ledger which shows the actual 
balance on hand after deducting such checks as have been pre- 
sented and certified or paid. You state that in actual practice 



J. WESTON ALLEN, ATTORNEY-GENERAL. 385 

the bank ledger balance will generally show a larger sum on de- 
posit than the check book balance, since the bank ledger does not 
show outstanding checks which have not been presented for 
certification or payment, and that the two balances are reconciled 
by adding to the check book balance the amount of the unpre- 
sented checks. 

G. L., c. 29, § 34, limits the amount of public money which 
may be subjected to the risk that a particular bank may fail to 
40 per cent of the paid-up capital of such bank. G. L., c. 107, 
§ 212, provides: — 

A check of itself does not operate as an assignment of any part of 
the funds to the credit of the drawer with the bank, and the bank is 
not liable to the holder unless and until it accepts or certifies the check. 

This section declares the law as it previously existed in this 
Commonwealth. Carr v. National Security Bank, 107 Mass. 45, 
49; Dana v. Third National Bank, 13 Allen, 445. 

Since the mere issue of a check does not operate as an assign- 
ment of any part of the deposit, it cannot reduce the amount of 
public money which stands upon the books of the bank to the 
credit of the Commonwealth subject to the risk that the bank 
may fail. It follows that outstanding checks which have not 
been paid by the bank or certified at the instance of the holder 
(which, under G. L., c. 107, § 211, would discharge the Com- 
monwealth as drawer) cannot be considered in determining the 
maximum amount which the Treasurer and Receiver-General 
may deposit in the bank without violating G. L., c. 29, § 34. 

On the other hand, G. L., c. 29, § 34, must receive a practical 
construction. Zeal for mathematical accuracy at every instant 
of time must not be permitted to deprive the Commonwealth of 
the banking facilities which, as a practical matter, are essential 
to the discharge of public business. Neither deposits in nor pay- 
ments by a bank automatically record themselves upon the books 
of the bank at the instant that the transaction is completed. 
The physical limitations incident to all human endeavor neces- 
sarily prevent the record from keeping pace, at every instant, 
with the actual transactions. In spite of this necessary dis- 



386 



OPINIONS OF THE ATTORNEY-GENERAL. 



crepancy, practical considerations require that both the Treas- 
urer and Receiver-General and the bank must be permitted to 
rely upon the records of the bank. 

The laAV does not ordinarily take cognizance of fractions of a 
day. Portland Bank v. Maine Bank, 11 Mass. 204; Clark v. 
Flagg, 11 Cush. 539, 540. So, also, the law will so arrange acts 
performed in one day and relating to one subject-matter as to 
render them conformable to the intentions of the parties, with- 
out regarding which was, in fact, first produced or executed. 
Taunton S: South Boston Turnpike Corjm. v. Whiting, 10 Mass. 
326, 336; Clark v. Broicn, 3 Allen, 509, 511. I am therefore of 
opinion that, if the record of any particular day should, when 
extended, appear to show that at some time during that day the 
permitted maximum was exceeded, but should further show that 
subsequent transactions upon that day corrected the excess, 
neither the bank nor the Treasurer and Receiver-General should 
be deemed to have violated the statute. 

Answering your precise ciuestion, I therefore ad\'ise you that, 
in my opinion, you may determine the maximum balance upon 
deposit at any given time either by inquiry of the bank as to 
what the books show at that time, or by taking the balance upon 
your own books and adding thereto any outstanding checks not 
known to have been paid. 



To the Com- 
missioner of 
Corporations 
and Taxation. 

1922 
January 31. 



Taxation — Abatement — Whether Tax correctly assessed 
rpoN the Basis of an Erroneous Return is Illegally 
exacted. 

a tax correctly assessed upon the facts stated in an erroneous return is not 
"illegally exacted," within the meaning of G. L., c. 58, § 27, and cannot 
be abated under that section. 

Referring to your inquiry in which my approval was requested, 
under G. L., c. 58, § 27, for the issuance of a certificate to the effect 

that a tax has been illegally exacted from the Bank, the facts 

appear to be as follows : — 

The bank, in the return filed by it on May 7, 1921, reported as 
the deduction allowed under G. L., c. 63, § 12, par. (/), the sum 



J. WESTON ALLEN, ATTORNEY-GENERAL. 387 

of $52,251.34 instead of $694,053.16. This error was not dis- 
covered by the bank until November. The bank, within the period 
prescribed by law for beginning legal proceedings to obtain a re- 
payment of a tax illegally exacted, made application for an abate- 
ment of the tax. The Commissioner made an assessment of the 
tax upon the face of the return, and there was nothing in the return 
to indicate that an error had been made by the bank with respect 
to any item. 

G. L., c. 58, § 27, provides: — 

If it shall appear that a legacy and succession tax or a tax or excise 
upon a corporation, foreign or domestic, which has been paid to the 
commonwealth, was in whole or in part illegally exacted, the commis- 
sioner may, with the approA^al of the attorney general, issue a certifi- 
cate that the party aggi-ieved by such exaction is entitled to an abate- 
ment stating the amount thereof. The treasurer shall pay the amount 
thus certified to have been illegally exacted, with interest, without any 
appropriation therefor by the general court. No certificate for the 
abatempnt of any tax shall be issued under this section unless applica- 
tion therefor is made to the commissioner within the time prescribed by 
law for beginning legal proceedings to obtain a repayment of the tax. 
This section shall be in addition to and not in inodification of any other 
remedies. 

The precise question is whether a tax correctly assessed upon 
the facts which appear in the return is "illegally exacted," within 
the meaning of section 27. 

G. L., c. 63, § 13, prescribes the return which must be made. 
The tax is assessed upon the basis of this return. 

It may be urged that any tax which exceeds the amount which 
the defendant ought to pay upon the facts as they actually exist 
is a tax illegally exacted. In my opinion, so broad an interpreta- 
tion cannot be put upon the words "illegally exacted" as employed 
in this section. 

G. L., c. 58, § 27, makes no provision for correcting errors in the 
tax return at the instance of the taxpayer. In this respect it differs 
from G. L., c. 63, § 51, which provides: — 

Application for the abatement or correction of any tax assessed under 
sections thirty to fifty, inclusive, may be made within thirty days after 



388 



OPINIONS OF THE ATTORNEY-GENERAL. 



the date upon which the notice of assessment is sent, and from the de- 
cision of the commissioner thereon any corporation may appeal in the 
manner provided bj^ section seventy-one. 

Chapter 63, section 51, does not apply to the present tax, since 
it is not assessed under sections 30 to 50. The omission from G. L., 
c. 58, § 27, of any provision for correction similar to that contained 
in chapter 63, section 51, is a significant indication that the pro- 
vision for abatement in section 27 extends only to error in the mode 
of assessment, and does not extend to correction of the return 
upon which that assessment rests. It follows as a necessary 
consequence that a tax correctly assessed upon the facts appearing 
in the return is not illegally exacted, within the meaning of that 
statute. The taxpayer cannot successfully attack the legality 
of the assessment by showing that he himself stated the facts 
erroneously in his return. 

I am therefore of the opinion that, since chapter 58, section 27, 
contains no provision for correction of the return at the instance 
of the taxpayer, it confers no power to abate a tax correctly 
assessed upon the facts disclosed by the return. 



To the Com- 
missioner of 
Corporations 
and Taxation. 

1922 
February 3. 



Taxation — Abatement — Effect of Failure to apply for 
Abatement within Thirty Days after Notice of Assess- 
ment IS SENT-. 

Where a corporation failed to file a proper return, and the Commissioner of Cor- 
porations and Taxation assessed a tax under G. L., c. 63, § 45, upon double 
the amount of income as determined by him, and gave notice of such assess- 
ment, a failure by the corporation to apply for abatement within thirty days, 
as required by G. L., c. 63, § 51, terminates the power of the Commissioner 
to correct or abate such assessment. 

Failure to receive a notice to file a proper return does not excuse a failure to apply 
for abatement within thirty days after the date of the notice of assessment of 
the tax. 

You state the following case : — 

A domestic business corporation filed a return adjudged insufficient 
by the Commissioner under G. L., c. 63, § 46. The Commissioner 
mailed a notice to the corporation to file a proper return. This notice 
was not received by the corporation, which continued in default. The 



J. WESTON ALLEN, ATTORNEY-GENERAL. 

Commissioner, acting under said section 40, determined the income of 
the corporation according to his best information and beUef, and as- 
sessed a tax upon double the amount so determined, and gave notice 
of such assessment. The corporation failed to apply for an abatement 
within thirty days of the date upon which notice of such assessment 
was sent, but did apply therefor within six months of said date. You 
inquire whether the Commissioner has any power to grant an abatement. 

In my opinion, the failure of the corporation to receive the 
notice that its return was insufficient is immaterial upon the ques- 
tion of an abatement. G. L., c. 63, § 51, provides as follows: — 

Application for the abatement or correction of any tax assessed under 
sections thirtj'- to fifty, inclusive, may be made within thirtj^ daj^s after 
the date upon which the notice of assessment is sent, and from the de- 
cision of the commissioner thereon any corporation may appeal in the 
manner provided by section seventy-one. 

It does not appear that the corporation did not receive the notice 
of the tax. It failed to apply for correction or abatement within 
the thirty days prescribed by section 51. It has lost that remedy 
by its own default in failing to apply within said thirty days. I 
am therefore of opinion that you have no power to make a cor- 
rection or grant an abatement of the tax assessed by you. 



389 



Towns — State Tax — Interest — Abatement. 

Where, owing to a controversy as to the amount of reimbursement from the pro- 
ceeds of the income tax due to a town, under G. L., c. 70, § 1, the amount of 
the State tax assessed to the town, under St. 1921, cc. 399 and 492, was not 
paid within the time required, interest assessed as provided by the statute 
cannot be abated. 

It appears that on Nov. 15, 1921, a town in this Common- xothe 
wealth owed to the Treasurer and Receiver-General, for taxes, 1922 

February 7. 

a balance of $26,325.08, and that on the same day there was due 

to the town from the Treasurer and Receiver-General, as reim- 
bursement from the income tax for certain school salaries, the 
sum of $14,416; that there had been a controversy between the 
Department of Education and the school department of the 



390 OPINIONS OF THE ATTORNEY-GENERAL. 

town as to the amount of the reimbursement due to the town, 
which had been settled on or about November 4, but that the 
amount due had not been certified to the Auditor of the Com- 
monwealth until November 14; that consequently the Treasurer 
and Receiver-General did not receive the necessary certificate 
from the Auditor of the Commonwealth in time to include said 
amount in the annual settlement sheet on November 15; and 
that on November 17 the town treasurer sent to the Treasurer 
and Receiver-General a check for $26,325.08, and on the same 
day the Treasurer and Receiver-General sent to the town treas- 
urer a check for $14,410. The town treasurer states that the 
town, like other towns, depends upon the approximate amount 
coming from the Treasurer and Receiver-General to the town 
treasurer in order to meet the State tax. Interest at the rate of 
1 per cent per month from Nov. 15, 1921, to the date of pay- 
ment, amounting to $26.33, was demanded by the Treasurer and 
Receiver-General of the town treasurer, and the town treasurer 
requests that the claim for interest be abated. You ask me to 
advise you whether, in my opinion, this interest should be abated. 

I assume that the balance due from the town to the Treas- 
urer and Receiver-General was a balance of the amount of the 
State tax assessed to the town by St. 1921, cc. 399 and 492. 
Both these acts contain a provision, in substance, that if the 
amount due from any city or town as provided therein is not 
paid to the Treasurer and Receiver-General on or before No- 
vember 15, the Treasurer and Receiver-General shall notify the 
treasurer of such delinquent city or town, "who shall pay into 
the treasury of the commonwealth, in addition to the tax, such 
further sum as would be equal to one per cent per month during 
the delinquency from and after November fifteenth." 

G. L., c. 70, § 1, provides as follows: — 

The state treasurer shall annually, on or before November fifteenth, 
pay to the several towns from the proceeds of the tax on incomes, 
which shall be available therefor without appropriation, the sums re- 
quired for the purposes of Part I of this chapter, as part reimbursement 
for salaries paid to teachers, supervisors, principals, assistant super- 
intendents and superintendents for services in the public day schools 
rendered during the year ending the preceding June thirtieth. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 

There is no provision in the acts assessing the State tax au- 
thorizing an abatement of the assessment of interest if the tax 
is not paid on or before November 15, and there is nothing in 
those statutes making the obHgation of payment dependent 
upon receipt of the reimbursement under G. L., c. 70, § 1. On 
the other hand, there is no requirement in that section that the 
Treasurer and Receiver-General shall pay interest if the reim- 
bursement is not paid on or before November 15. In fact, as the 
correspondence shows, the Treasurer and Receiver-General was 
not at fault in failing to pay the reimbursement in time, but the 
fault, if any, lay with the Department of Education. It must 
be recognized that there is a large measure of equity in the com- 
plaint of the town treasurer that the claim for interest imposes a 
hardship upon the town. Answering your question specifically, 
however, I do not see that there is any way in which the interest 
imposed by the statutes, without any discretion in the Treasurer 
and Receiver-General as to its collection, may be abated. 



391 



Constitutional Law — Commissioner of Public Health — 
Regulations and Standards for the Manufacture, Sale 
or Transportation of Foods, Drugs, Medicines and 
Liquors — Eighteenth Amendment. 

Under G. L., c. 94, § 192, the Legislature has imposed upon the Department of 
Public Health the power and duty of making certain rules and regulations 
which shall conform to certain standards set forth in the statute, which 
standards may be changed from time to time, in which event the rules and 
regulations must be changed to conform therewith. 

You request my opinion as to the constitutionality of regula- xotheCom- 
tions and standards made by your department under the pro- PuWic^Heaith 
visions of G. L., c. 94, § 192, in view of the recent opinion of the February?. 
Supreme Judicial Court of Massachusetts regarding proposed 
legislation (Oinnion of the Justices, 239 Mass. 606), which was 
rendered in answer to certain questions propounded by the 
Senate of the Commonwealth of Massachusetts relative to House 
Bill No. 1612, entitled "An Act to carry into effect, so far as the 
Commonwealth of Massachusetts is concerned, the Eighteenth 
Amendment to the Constitution of the United States." 



392 OPINIONS OF THE ATTORNEY-GENERAL. 

The distinguishing characteristic of that bill is that "in several 
sections it incorporates by reference laws made and to be made 
by the Congress of the United States, and regulations made and 
to be made thereunder, for the purpose of establishing offences 
to be punished by fine or imprisonment or both, by prosecutions 
to be instituted in the courts of this Commonwealth." It was 
thereby attempted "to make the substantive law of the Com- 
monwealth in these particulars change automatically so as to 
conform to new enactments from time to time made by Congress." 
The Opinion of the Justices, supra, holds that legislation of that 
nature would be contrary to the Constitution of this Common- 
wealth, and uses the following language: — 

Legislative power is vested exclusively in the General Court except 
so far as modified by the initiative and referendum amendment. It is 
a power which cannot be surrendered or delegated or performed by 
any other agency. The enactment of laws is one of the high preroga- 
tives of a sovereign power. It would be destructive of fundamental 
conceptions of government through republican institutions for the rep- 
resentatives of the people to abdicate their exclusive privilege and 
obligation to enact laws. 

No discussion is required to demonstrate that the Congress of the 
United States cannot be treated as a subsidiary board or commission 
by the General Court. 

But the question presented by you plainly does not come 
within the principle of said opinion, and the facts involved in 
your question are different from those therein considered. Your 
department is charged with the duty of adopting certain rules 
and regulations in accordance with the provisions of G. L., c. 94, 
§ 192, which reads as follows: — 

The department of public health and local boards of health shall 
enforce sections one hundred and eighty-six to one hundred and ninety- 
five, inclusive, and, except as to standards fixed by law, the said depart- 
ment shall adopt rules and regulations, consistent with said sections, 
standards, tolerances and definitions of purity or quality, conforming 
to the rules and regulations, standards, tolerances and definitions of 
purity or quality adopted or that may hereafter be adopted for the 
enforcement of the act of congress approved June thirtieth, nineteen 



J. WESTON ALLEN, ATTORNEY-GENERAL. 393 

hundred and six, and the amendments thereof, the said act being en- 
titled, "An Act for preventing the manufacture, sale or transportation 
of adulterated or misbranded or poisonous or deleterious foods, drugs, 
medicines, and liquors, and for regulating traffic therein and for other 
purposes," or now or hereafter adopted by the United States depart- 
ment of agriculture under any other federal law. 

Failure to comply with such rules and regulations is punishable 
under the provisions of G. L., c. 94, § 191. 

It cannot be claimed that these sections of the General Laws are 
contrary to the Constitution of this Commonwealth. The rules 
and regulations enacted by your department thereunder are not 
enactments of the Legislature, but are adopted by your depart- 
ment under authority derived from the Legislature. The Legis- 
lature, in imposing upon your department the power and duty of 
making such rules and regulations, specifies that they shall con- 
form to certain standards set forth in the statute, which standards 
may be changed from time to time, in which event the rules and 
regulations of your department must be changed to conform there- 
with. 

I am consequently of the opinion that the Opinion of the Justices, 
supra, has no application to the question raised by your commu- 
nication. 



DoMiciL — High School Pupil — Tuition — Transportation. 

G. L., c. 76, § 6, does not apply where a minor is a legal resident of one town but 
goes to another for purposes of employment only, inasmuch as said minor is 
not residing temporarily in a town other than the legal residence of his 
parent or guardian "for the special purpose of there attending school." 

You request my opinion on the following case : To the Com- 

missioner of 
Education. 

The town of Orleans maintains a high school. The town of Eastham ^ ^i922 
does not maintain a high school, but pays tuition and transportation 
of its pupils to the Orleans high school. A boy who is a resident of 
Orleans and is attending the Orleans high school in his junior year, 
whose father is dead and whose mother is poor and has several other 
children, has an opportunity to go to Eastham and live with a family 
on an asparagus farm, at least until he graduates from high school. 
If he does go to Eastham, and works on the asparagus farm, will he 



February 8. 



394 OPINIONS OF THE ATTORNEY-GENERAL. 

thereby gain a residence in Eastham? If so, the town of Eastham 
would have to paj^ his tuition and transportation to the Orleans high 
school. If he does not gain a residence in Eastham, but is still a legal 
resident of Orleans, should the town of Orleans charge Eastham for 
his tuition, and would the town of Eastham be required to furnish trans- 
portation to the Orleans high school? If it does furnish such transporta- 
tion should it render a bill to the parent, who resides in Orleans? 



G. L., c. 76, §§ 5 and 6, provide as follows: 



Section 5. Every child shall have a right to attend the public 
schools of the town where he actually resides, subject to the following 
section, and to such reasonable regulations as to numbers and quali- 
fications of pupils to be admitted to the respective schools and as to 
other school matters as the school committee shall from time to time 
prescribe. No child shall be excluded from a jiublic school of any town 
on account of race, color or religion. 

Section 6. If a child described in section one resides temporarily 
in a town other than the legal residence of his parent or guardian for 
the special purpose of there attending school, the said town may recover 
tuition from the parent or guardian, unless under section twelve of 
chapter seventy-one, such tuition is payable bj^ a town. Tuition pay- 
able bj' the parent or guardian shall, for the period of attendance, be 
computed at the regular rate established by the school committee for 
non-resident pupils, but in no case exceeding the average expense per 
pupil in such school for said period. 

In rendering this opinion it is assumed that the boy in question 
is under the age of twenty-one years, although you do not so state 
in your communication. 

It is a well-settled rule of law that the domicil of the parent of a 
minor is the domicil of the minor. • Where the father is living, the 
domicil of a minor follows that of the father, but, as in the present 
case, where the father is dead, the domicil of the minor follows that 
of the mother. An infant, being non sui juris, is incapable of 
fixing his domicil, which, therefore, during his minority follows 
that of the parent. See IV Op. Atty.-Gen. 340. 

It is therefore my opinion that the boy in question is still a 
legal resident of Orleans, even though he may leave that town to 
go to Eastham for purposes of employment only, in which event 
G. L., c. 76, § 6, above quoted, would have no application, inas- 



J. WESTON ALLEN, ATTORNEY-GENERAL. 395 

much as he is not residing temporarily in a town other than the 
legal residence of his parent or guardian "for the special purpose 
of there attending school." 
St. 1921, c. 296, provides: — 

... If a town of less than five hundred families or householders, 
according to such census, does not maintain a public high school offer- 
ing four years of instruction, it shall pay the tuition of any pupil who 
resides therein and obtains from its school committee a certificate to 
attend a high school of another town included in the list of high schools 
approved for this purpose by the department. Such a town shall also, 
through its school committee, provide, when necessary, for the trans- 
portation of such a pupil at a cost up to forty cents for each day of 
actual attendance. . . , 

I am of the opinion that the present case does not come within 
this statute, inasmuch as the town of Orleans and not Eastham 
is the residence of the boy in question. It follows, therefore, that 
the town of Eastham is not required to furnish him with trans- 
portation to the Orleans high school, nor can it be charged with 
his tuition thereat. 



Income Tax — Collection from Non-resident Delinquent. 

Taxes are not debts or contracts, but mere local statutory obligations. 

Where the delinquent is a non-resident and has no property within the jurisdiction, 

the Commonwealth is without power either to collect a tax in its own courts 

or to invoke the aid of a sister State for that purpose. 

You have asked mv opinion in relation to the collection of TotheCom- 

" ^ missioner of 

certain income taxes. Corporations 

and laxation. 

In most of the cases the delinquent taxpayer now apparently FebJuirys. 
resides outside the Commonwealth. In all these cases, in my opin- 
ion, any attempt to collect the taxes due would be fruitless. Taxes, 
it has been frequently held, are not debts or contracts, but mere 
statutory obligations. There is no personal liability to pay a tax 
except under the statute imposing it, and that liability is purely 
local and statutory. Where the delinquent is outside the jurisdic- 
tion and has no property inside the jurisdiction, the State is 
powerless to collect a tax in its own courts and is powerless to 



396 



OPINIONS OF THE ATTORNEY-GENERAL. 



invoke the aid of a sister State for that purpose. State of Colorado 
V. Harheck, 232 N. Y. 71; Kessler v. Kedzie, 106 111. App. 1; cf. 
JJalker x. Treasurer and Receiver-General, 221 Mass. 600; Wis- 
consin V. Pelican Ins, Co., 127 U. S. 265. 



To the House 
of Repre- 
sentatives. 

1922 
February 11. 



Constitutional Law — Impairment of Contract — Boston 
Elevated Railway Company — Eastern Massachusetts 
Street Railway Company. 

Spec. St. 1918, cc. 159 and 188, providing for the public operation of the street 
railway systems of the Boston Elevated Railway Company and the Eastern 
Massachusetts Street Railway Company, respectively, for a term of years 
by trustees to be appointed by the Governor, with exclusive authority to fix 
fares and to determine the character of the service, having been accepted by 
the companies, constitute contracts between the Commonwealth and said 
companies with respect to the management and operation thereof. 

Certain proposed bills, if enacted, would be unconstitutional, for the reason that 
they would impair one or more of the provisions in Spec. St. 1918, cc. 159 and 
188, giving the trustees the right to regulate and fix fares and to determine 
the character and extent of the service and facilities to be furnished. 

A bill repealing Spec. St. 1918, c. 159, but providing that the act should take effect 
on its acceptance by the directors of the Boston Elevated Railway Company 
before a certain date, if enacted, would be unconstitutional, since the di- 
rectors of the company cannot exercise the power attempted to be conferred 
upon them to abrogate the contractual obligations contained in said statute. 

You have asked my opinion concerning fourteen bills referred 
to the House committee on rules, the question in each case being, 
— "Would this bill, if enacted into law, be constitutional?" 
These bills all relate directly or indirectly to the service or manage- 
ment of the Eastern Massachusetts Street Railway Company or the 
Boston Elevated Railway Company, and involve a consideration 
of the application and effect of Spec. St. 1918, c. 159, and Spec. 
St. 1918, c. 188, being, respectively, "An Act to provide for the 
public operation of the Boston Elevated Railway Company" and 
"An Act relative to the Bay State Street Railway Company." 
Each of these statutes provides for the public operation of the 
respective street railway systems for a term of years by trustees 
to be appointed by the Governor, with exclusive authority to fix 
fares and determine the character of the service, and each con- 
tains provisions for the acceptance of the act by a vote of the stock- 
holders of the company concerned. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 397 

With reference to Spec. St. 1918, c. 159, the court has recently 
held, in Boston v. Treasurer and Receiver-General, 237 Mass. 403, 
413, 414, that that statute, "having been accepted by the rail- 
way companies (the Boston Elevated Railway Company and the 
West End Street Railway Company), constitutes an agreement 
between the Boston Elevated Railway Company and the Com- 
monwealth that the latter shall take over the management and 
operation of the railway company and shall pay therefor the 
amount specified in way of compensation for the use thereof," 
and that the act is constitutional. 

In an opinion to the House committee on street railways, 
dated April 22, 1921 (VI Op. Atty.-Gen. 147), I had occa- 
sion to consider the effect of Spec. St. 1918, c. 188, and ruled 
that the provisions in sections 11 and 12 of that act, relating to 
the right of the trustees to regulate and fix fares, and to deter- 
mine the character and extent of the service and the facilities to 
be furnished, and the right of the directors to pass upon con- 
tracts for the construction or operation of additional lines, con- 
stituted a contract between the Commonwealth and the Eastern 
Massachusetts Street Railway Company which could not be 
impaired without violating U. S. Const., art. I, § 10; that St. 1920, 
c. 613, as amended by St. 1920, c. 637, was an impairment of the 
contract contained in said Spec. St. 1918, c. 188, and was there- 
fore unconstitutional, and that the proposed legislation concern- 
ing which my opinion was asked would also be unconstitutional. 

I. In my judgment, the bills submitted with the petitions 
numbered in your letter 1, 3, 4, 5, 7, 8, 9, 11, 12, 13 and 14 would, 
if enacted into law, be unconstitutional for the reasons stated 
in my former opinion, which I now restate as applicable to each 
of said petitions and bills as follows : — 

1. Petition for the establishntent of a 5-cent fare on the lines of 
the Eastern Massachusetts Street Railway Conipany in the city 
of Chelsea and from said city to Scollay Square in the city of 
Boston. 

To establish a 5-cent fare on the lines named would be a direct 
impairment of the provision in Spec. St. 1918, c. 188, giving the 
trustees the right to regulate and fix fares. 



39S OPIXIOXS OF THE ATTORNEY-GENERAL. 

3. Petition that the service of the Boston Elevated Railway Com- 
pany in Medford be extended. 

To require the Boston Elevated Railway Company to con- 
struct and extend its tracks in Medford, and to require the Eastern 
Massachusetts Street Railway Company to permit the Boston 
Elevated Railway Company to make joint use of its tracks in 
Medford. or to make arrangements for transfers, subject to the 
approval of the Department of Public Utilities, substantially as 
provided by the bill accompanying the petition, would be a 
direct impairment of the provisions of Spec. St. 1918, c. 159, and 
of Spec. St. 1918, c. 188. giving to the trustees of the two street 
railway systems the exclusive right to determine the character 
and extent of the service and facilities to be furnished. 

4- Petition for the payment of a o-cent fare on all lines of the 
Boston Elevated Railicay Coinpany. 

The bill submitted with this petition would be a direct im- 
pairment of the contract contained in Spec. St. 1918, c. 159, 
for the reasons stated with respect to petition No. 1, above. 

5. Petition that the legal rate of fare on all lines of the Boston 
Elevated Railicay Co'ntpany be established at -5 cents. 

The bill proposed by this petition would be a direct impair- 
ment of the contract contained in Spec. St. 1918, c. 159, for the 
reasons stated with respect to petition No. 1, above. 

7. Petition of the mayor of the city of Chelsea that the board of 
trustees of the Boston Elevated Railway Company be authorized to 
operate lines of the Eastern Massachusetts Street Railway Company 
in said city. 

The bill proposed by this petition would be a direct impair- 
ment of the contracts contained in Spec. St. 1918, c. 159, and 
Spec. St. 1918, c. 188, for the reasons stated with respect to 
petition No. 3, above. 

S. Petition relative to the operation by jniblic authority of street 
railway lines in the Hyde Pari: district of the city of Boston. 

This petition and bill is submitted to amend St. 1920, c. 613, 
§ 7. Since in my opinion of April 22, 1921, said chapter 613 
was found to be unconstitutional, the proposed amendment 
thereof would also be unconstitutional. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 399 

9. Petition relative to amounts set aside for rehabilitation, repair 
and reconstruction by the trustees of the Boston Elevated Railway 
Company and of the Eastern Massachusetts Street Railway Company. 

The bill accompanying this petition, in my opinion, would be 
unconstitutional for the reasons stated with respect to petition 
No. 3, above. 

11. Petition relative to street railway transportation in the city of 
Revere. 

The bill accompanying this petition directs the Boston Ele- 
vated Railway Company to extend its transportation system in 
the city of Revere. This bill, in my opinion, would be unconstitu- 
tional for the reasons stated with respect to petition No. 3, above. 

12. Petition of the iiiayor of Revere that the board of trustees of 
the Boston Elevated Railway Coiiipany be authorized to operate 
the lines of the Eastern Massachusetts Street Railway Company in 
Chelsea, Revere, Maiden and Everett. 

The bill accompanying this petition, in my opinion, would 
be unconstitutional for the reasons stated with respect to petition 
No. 3, above. 

13. Petition of the mayor of Revere and others relative to the 
orders and ndings of the trustees of the Eastern Massachusetts Street 
Railway Company. 

The bill accompanying this petition purports to amend Spec. 
St. 1918, c. 188, by adding a new section limiting the powers of 
the trustees to fix fares and to determine the character and ex- 
tent of the service and facilities to be furnished. This bill, in 
my opinion, would be unconstitutional for the reasons stated with 
respect to petitions Nos. 1 and 3, above. 

IJf- Petition relative to the operation of certain lines of the Boston 
& Albany and New York, New Haven v: Hartford Railroad coiii- 
panies by the board of trustees of the Boston Elevated Railway Com- 
pany, and to the electrification thereof. 

The bill accompanying this petition, in my opinion, would be 
unconstitutional for the reasons stated with respect to petition 
No. 3, above. 

II. 2. Petitioji for the termination of the public iiianayement 
and operation of the Boston Elevated Railway. 



400 OPINIONS OF THE ATTORNEY-GENERAL. 

The bill accompanying this petition repeals Spec. St. 1918, 
c. 159, but contains a provision that the act shall take effect " upon 
its acceptance by the board of directors or a majority of the 
stockholders of the Boston Elevated Railway Compan}^ provid- 
ing such acceptance occurs prior to the day of 
nineteen hundred and 

Spec. St. 1918, c. 159, in section 2, gives to the trustees, for 
the purposes of the act, except as otherwise provided, the au- 
thority to have and exercise all the rights and powers of the 
company and its directors, and in section 4 provides that the 
duties of the board of directors " shall be confined to maintaining 
the corporate organization, protecting the interests of the cor- 
poration so far as necessary, and taking such action from time 
to time as may be deemed expedient in cases, if any, where the 
trustees cannot act in its place." There are provisions in said 
chapter requiring the consent of the directors to certain contracts 
made by the trustees involving the payment of rental or other 
compensation by the company beyond the period of public opera- 
tion, and other provisions requiring the approval of the stock- 
holders to the issuing of new preferred stock. 

It is my opinion that the directors cannot exercise the power 
attempted by the proposed act to be conferred upon them to 
impair the obligation of Spec. St. 1918, c. 159, by repealing that 
statute, which by acceptance of the stockholders of the Boston 
Elevated Railway Company and the stockholders of the West 
End Street Railway Company became a binding contract. For 
this reason I am of opinion tliat the proposed act would be un- 
constitutional. 

Whether, if the bill provided simply that the act should take 
effect upon its acceptance by a majority of the stockholders of the 
Boston Elevated Railway Company, it would be constitutional, 
I do not need to consider. Ordinarily, the stockholders of a cor- 
poration by a majority vote may assent to an amendment or repeal 
of a statute constituting a contract between the State and their 
corporation. Pennsylvania College Cases, 13 Wall. 190; Chicago 
Life Ins. Co. v. Needles, 113 U. S. 574; cf. Durfee v. Old Colony, 
etc., R.R. Co., 5 Allen, 230. Clearly, the company would not be 



J. WESTON ALLEN, ATTORNEY-GENERAL. 401 

bound except by the acceptance of the holders of a majority of 
its stock. Whether the words "a majority of the stockholders" 
mean **the holders of a majority of the stock" or merely "a 
majority of the persons holding the stock," whether the stock- 
holders of the West End Street Railway should be included, and 
whether the holders of the preferred stock authorized to be issued 
under section 5 have any special rights, may be doubtful questions. 
On these matters I do not attempt to pass. 

III. 6. Petition relative to establishing a o-cent fare on the lines 
of the Boston Elevated Railway Company and subsidizing said 
comyany from the 'public treasury for any resulting deficiency. 

The provisions of the bill accompanying this petition would 
plainly impair the contract contained in Spec. St. 1918, c. 159, 
if it were not for the following provision contained in section 6 
of the bill: — 

This act shall not take effect unless it is accepted by the holders of 
not less than a majority of all the stock of the Boston Elevated Rail- 
way Company, not including the preferred stock issued under section 
five of said chapter one hundred and fifty-nine, and by the holders of 
not less than a majority of all the stock of the West End Street Rail- 
way Company, given at meetings called for the purpose, and the filing 
with the secretary of a certificate to that effect signed by a majority 
of the directors of the Boston Elevated Railway Company. 

I am informed that the preferred stock issued under section 5 
of said act has the same voting power as the other stock of the 
Boston Elevated Railway Company. It is therefore my opinion 
that this bill would be unconstitutional because, by excluding the 
holders of that stock from the right to vote, it would in effect 
authorize the acceptance of the proposed act by the holders of less 
than a majority of the stock of the Boston Elevated Railway 
Company entitled to vote. Whether the holders of this preferred 
stock have any special rights which would be impaired by such a 
bill without their unanimous consent, I do not attempt to decide. 

IV. 10. Petition relative to the taking of certain interests in land 
in the city of Boston by the Boston Elevated Railway Company. 

This petition involves entirely different considerations and 
will be dealt with in a separate opinion. 



402 



OPINIONS OF THE ATTORNEY-GENERAL. 



Constitutional Law — Unregistered Co-partners and 
Stockholders in Retail Drug Corporations. 

The classification made by House Bill No. 124, forbidding unregistered co-partners 
or unregistered stockholders in a corporation doing a retail drug business from 
actively engaging in the drug business, with the exceptions noted, is arbitrary 
and unreasonable, and would render the bill unconstitutional, if enacted. 

cCmmittee^on You pcqucst mv opiiiioii on the constitutionality of House Bill 
Third Riding. No. 124, relative to unregistered co-partners and stockholders in 
February 24. retail drug corporatious. Said bill is as follows: — 

Section thirty of chapter one hundred and twelve of the General 
Laws is hereby amended ... so as to read as follows : — Section SO. 
Except as provided in section sixty-five, whoever, not being registered 
under section twenty-four or corresponding provisions of earlier laws, 
sells or offers for sale at retail, compounds for sale or dispenses for medic- 
inal purposes drugs, medicines, chemicals or poisons, except as pro- 
vided in sections thirty-five and thirty-six, shall be punished by a fine 
of not more than fifty dollars. This section shall not prohibit the em- 
ployment of apprentices or assistants and the sale by them of any drugs, 
medicines, chemicals or poisons, provided, a registered pharmacist is in 
charge of the store and present therein. No unregistered co-partner or 
unregistered stockholder in a corporation doing a retail drug business 
shall be actively engaged in the drug business except those who were 
engaged in the drug business on or before May twenty-eighth, nineteen 
hundred and thirteen. The term "actively engaged" as used in this 
section shall mean the doing of any work in the store. 



Unquestionably there is no vested right to engage in the drug 
business free from supervision and regulation by the State in the 
proper exercise of its police power. Hence, in construing the bill 
in question due consideration must be given to the legislative pur- 
pose and to the mischief intended to be guarded against. Whether 
it is a fair, reasonable and valid exercise of the police power, or 
arbitrary and capricious, must be determined in the light of the 
object sought to be attained by the act. 

The bill in question selects for regulation a limited class of 
unregistered persons, namely, co-partners and stockholders in 
retail drug corporations. It does not prohibit every unregistered 
person from working in a drug store. The holding of stock in a 



J. WESTON ALLEN, ATTORNEY-GENERAL. , 403 

drug corporation has no reasonable relation to the evil intended 
to be guarded against, namely, the dispensing of drugs by un- 
registered persons. Any unregistered person may be employed at 
the soda fountain, cigar stand, candy counter or other depart- 
ments which commonly form a material part of practically every 
modern drug store. Under the terms of this bill, however, if such 
unregistered person purchased or acquired even one share of stock 
in the corporation, he must immediately be discharged. 

In my opinion, the classification made by the bill is arbitrary 
and unreasonable, and would render the bill unconstitutional, if 
enacted. See Commonwealth v. Boston d' Maine R.B., 222 Mass, 
206, 208; Bogni v. Perotti, 224 Mass. 152, 156. 



Department of Public Health — Local Boards of Health 
— License to engage in the Business of the Manu- 
facture OR Bottling of Non-Alcoholic Beverages — 
Permit. 

Under St. 1921, c. 303, the power to grant and revoke permits for the manufacture 
and bottling of non-alcoholic beverages is vested exclusively in boards of 
health of cities and towns, although the Department of Public Health, under 
G. L., c. 94, §§ 186 to 196, has certain duties to perform relative to adultera- 
tion and misbranding of food and drugs. 

The Department of Public Health has no authority to order local boards of health 
to enforce any of the provisions of the act, should such boards be negligent 
in such duties. 

You request my opinion upon the following questions : — To the House 

Committee on 
Public Health. 

L Has the Massachusetts Department of Public Health, under the ^ ^^ 1^22 
provisions of St. 1921, c. 303, the power to revoke, for cause, any license 
issued under the provisions of the act bj^ a local board of health? 

2. Has the Massachusetts Department of Public Health any power 
under the act to grant licenses to places properly constructed and main- 
tained, if a local board of health refuses or neglects to do so? 

3. Has the Massachusetts Department of Public Health anj^ duties 
to perform under the provisions of the act, other than making regula- 
tions? 

4. Has the Massachusetts Department of PubUc Health the right 
and power to enforce its rules and regulations? 

5. Has the Massachusetts Department of Public Health any author- 



February 28. 



404 OPINIONS OF THE ATTORNEY-GENERAL. 

ity under any other statute to order local boards of health to enforce 
any of the provisions of the act, should such boards be negligent in 
such duties? 

St. 1921, c. 303, provides as follows: — 

Chapter ninety-four of the General Laws is hereby amended by in- 
serting after section ten and under the heading, Non-Alcoholic Bever- 
ages, the five following sections: — Section 10 A. Boards of health of 
cities and towns may annually grant permits to engage in the business 
of the manufacture or bottling of carbonated non-alcoholic beverages, 
soda waters, mineral or spring waters and may fix fees for said permits 
not to exceed ten dollars. The provisions of this section and the follow- 
ing four sections shall not apply to persons registered under sections 
thirty-seven to forty, inclusive, of chapter one hundred and twelve. 
Section lOB. The board of health shall, from time to time, examine 
the premises of any person granted a permit under the preceding sec- 
tion, and if such premises or the equipment used therein in connection 
with the business of such person is found to be in an unsanitary condi- 
tion, the board may revoke such permit after a hearing, ten days' notice 
of which shall be given such person. Section lOC. All materials used 
in the manufacture of beverages specified in section ten A shall be stored, 
handled, transported and kept in such a manner as to protect them 
from spoilage, contamination and unwholesomeness. No ingredient or 
material, including water, shall be used in the manufacture or bottling 
of any such beverage which is spoiled or contaminated, or which may 
render the product unwholesome, unfit for food, or injurious to health. 
Persons granted permits under section ten A, shall comply with sections 
one hundred and eighty-six to one hundred and ninetj^-six, inclusive. 
Section lOD. The department of public health and local boards of 
health may make rules and regulations to carry out the three preceding 
sections. Section WE. Any person who engages in the business of the 
manufacture or bottling of carbonated non-alcoholic beverages, soda 
waters, mineral or spring waters without the permit provided for in 
section ten A or who violates any provision of sections ten A to ten D, 
iaclusive, or of any rule or regulation made thereunder, shall be pun- 
ished for a first offence by a fine of not more than one hundred dollars 
and for a subsequent offence by a fine of not more than five hundred 
dollars. 

1. The subject-matter of this act pertains to non-alcoholic 
beverages, and requires a permit for the business of the manu- 
facture or bottling thereof. The power to grant such permit, and 



J. WESTON ALLEN, ATTORNEY-GENERAL. 405 

also to fix the fee therefor (not to exceed $10), is expressly vested 
in boards of health of cities and towns. So, also, the power to 
revoke such a permit is vested solely in such local boards of health, 
for the cause stated in the act. 

While it is required that persons granted such permits shall 
comply with G. L., c. 94, §§ 186-196, there is nothing therein or 
in St. 1921, c. 303, which gives the Department of Public Health 
the power to revoke any license issued by a local board of health 
under the provisions of said chapter 303. I accordingly answer 
your first question in the negative. 

2. Inasmuch as St. 1921, c. 303, expressly vests the licensing 
power in the boards of health of cities and towns, the Massachu- 
setts Department of Public Health has no power to grant such 
licenses " even if a local board of health refuses or neglects to do so." 
The Legislature has expressly vested the entire discretion in this 
matter in such local boards, and the Massachusetts Department, 
of Public Health, in my opinion, would have no right to substitute 
its own discretion therefor. 

3. Said St. 1921, c. 303, § lOD, provides that "the department 
of public health and local boards of health may make rules and 
regulations to carry out the three preceding sections." But it is 
also provided in said act that the licensee shall comply with G. L., 
c. 94, §§ 186-196 (relative to adulteration and misbranding of 
food and drugs). 

G. L., c. 94, § 192, provides: — 

The department of public health and local boards of health shall 
enforce sections one hundred and eighty-six to one hundred and ninety- 
five, inclusive, and, except as to standards fixed by law, the said de- 
partment shall adopt rules and regulations, consistent with said sections, 
standards, tolerances and definitions of purity or quality, conforming 
to the rules and regulations, standards, tolerances and definitions of 
purity or qualit}^ adopted or that may hereafter be adopted for the 
enforcement of the act of congress approved June thirtieth, nineteen 
hundred and six, and the amendments thereof, the said act being en- 
titled, "An Act for preventing the manufacture, sale or transportation 
of adulterated or misbranded or poisonous or deleterious foods, di-ugs, 
medicines, and liquors, and for regulating traffic therein and for other 
purposes," or now or hereafter adopted by the United States depart- 
ment of agriculture under any other federal law. 



406 OPINIONS OF THE ATTORNEY-GENERAL. 

In addition, G. L., c. 94, § 193, provides that — 

. . . Under the authority given by section one hundred and ninet}'- 
two the department of pubhc heahh shah adopt rules and regulations 
which shall be observed by the said department and by local boards of 
health in ascertaining whether there is such a guarant}^ which may be 
relied upon by the dealer. 

Violation of such rules, regulations and standards is punish- 
able as provided in G. L., c. 94, § 190. The collection of samples 
under said sections 186 to 195 and section 304 may be made 
either "by authorized agents of the department of public health 
or of boards of health of towns" (see G. L., c. 94, § 188). The 
examination of such samples " shall be made under the direction 
and supervision of the department or board taking such samples" 
(G. L., c. 94, § 189). So, also, G. L., c. 94, § 194, imposes a duty 
upon the Department of Public Health or local board " which took 
the sample "to present the facts, warn the offender, warn dealers, 
etc., as therein provided. 

It is thus plainly evident that the Massachusetts Department 
of Public Health has other duties to perform in addition to making 
regulations as provided in the act under consideration. Such 
additional duties relate to adulteration and misbranding of food 
and drugs under G. L., c. 94, §§ 186-19(5. 

4. St. 1921, c. 303, § lOE, provides the penalty for violation of 
any provision of sections lOA to lOD. This plainly gives the Mas- 
sachusetts Department of Public Health the right of enforcement 
of its rules and regulations made under authority of said act, and 
to institute prosecutions for violations thereof. 

5. G. L., c. Ill, §§ 2-25, outline the duties and powers of the 
Department of Public Health, while §§ 26-32, outline the duties 
of city and town boards of health. The duties thus respectively 
outlined are separate and distinct, and there is no intimation in 
the statutes, under authority of which these departments are 
created, of any right or power possessed by the Department of 
Public Health " to order local boards of health to enforce any of 
the provisions of the act, should such boards be negligent in such 
duties." See Sawyer v. State Board of Health, 125 Mass. 182, 192. 



J. WESTON ALLEN, ATTOKNEY-GENERAL. 407 

In an opinion of the Attorney-General, dated Feb. 7, 1917 
(V Op. Atty.-Gen. 12), appears the following statement: — 

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 members of the board of health act as pub- 
lic officers, that is, as agents of the State and not of the city. Attorney 
General v. Stratton, 914 Mass. 51; Hathaicay v. Everett, 205 Mass. 246; 
Haley v. Boston, 191 Mass. 291. 



DoMiciL — Settlement — Reimbursement of Cities and 
Towns under the Relief Laws — Soldier — Philippine 
Insurrection. 

A settlement is defeated under the provisions of G. L., c. 116, § 5, by an absence 
of five consecutive years, during which a person resides and intends to make 
his domicil away from his former place of settlement, although during said 
period such person makes visits to relatives or friends in his former place of 
settlement, and during a portion thereof is employed in the place of his former 
settlement without living there. 

A soldier who served in the Philippine insurrection is not to be regarded as having 
been engaged in a war against a foreign power, within the meaning of G. L., 
c. 116, § 1, par. 5. 

You request my opinion upon the following questions, which xotheCom- 
affect claims of cities and towns for reimbursement under the relief Public welfare. 

1922 
laws : Fe bruary 28. 

1. Is a settlement defeated under the pro\'i.sions of G. L., c. 116, § 5, 
by an absence of five consecutive years, during which time a person 
resides and intends to make his domicil away from his former place 
of settlement, if (o) during the said five-year period the person in ques- 
tion makes visits to relatives or friends in his former place of settle- 
ment, and (b) during a portion of the said five-year period the person 
in question is employed in the place of his former settlement without 
hAdng there. In both kinds of cases the persons in question received 
no public support in the town where the}"- had formerly been settled. 

2. Does a person who enhsted or was mustered into the mihtary or 
naval service of the United States as part of the quota of a town in the 
Commonwealth, who served not less than one year in the Philippine 
insurrection, gain a settlement under the provisions of G. L., c. 116, § 1, 
par. 5? 



408 OPINIONS OF THE ATTORNEY-GENERAL. 

1 (a). G. L., c. 116, § 5, provides as follows: — 

Each settlement existing on August twelfth, nineteen hundred and 
eleven, shall continue in force until changed or defeated under this 
chapter, but from and after said date absence for five consecutive years 
by a person from a town where he had a settlement shall defeat such 
settlement. The time during which a person shall be an inmate of any 
almshouse, jail, prison, or other pubhc or state institution, within the 
commonwealth, or in any manner under its care and direction or that 
of an officer thereof, 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. The settlement, existing on August twelfth, nineteen 
hundred and sixteen, of a soldier and his dependent ehgible to receive 
military aid and soldiers' relief under existing laws shall be and continue 
in force while said soldier or dependent actually resides in the common- 
wealth and until a new settlement is gained in another town in the 
manner heretofore prescribed. 

Your inquiry largeh' involves questions of fact. 

What constitutes domicil is mainly a question of fact, and the 
element of intention enters into it. Oliverieri v. AtHnson, 168 
Mass. 28. Mere intention, without proof of other facts with which 
such intention can be connected, is not enough. Holmes v. Greene, 
7 Gray, 299. "So to acquire a new domicil it is not necessary for 
a person to reside in a place with the purpose of making it his 
permanent home and residence. It is enough if he resides there 
with the intention to remain for an indefinite period of time, 
without any fixed or certain purpose to return to his former place 
of abode." Pahiter v. Hampden, 182 Mass. 511; Whitney v. 
Sherborn, 12 Allen, 111; Wilbraham v. Ludlow, 99 Mass. 587. 
"Absence, within the meaning of the statute relating to the laws 
of settlement of paupers, in my opinion, must be of such a charac- 
ter and with such intent as to constitute a change of domicil." 
V Op. Atty.-Gen. 380. 

It is therefore my opinion that question 1 (a) should be answered 
in the affirmative. 

1 ih). While there is some authority for the proposition that 
under the law relating to paupers domicil and residence are identi- 
cal, and that a pauper should be regarded as having a home 
wherever he finds work {Xeedlmin v. City of FitcJibury, 237 IMass. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 409 

354; Palmer v. Uampden, 182 Mass. 511), yet, in the case under 
consideration, you state that "the person in question is employed 
in the place of his former settlement without living there." Con- 
sequently, the same conclusion is to be reached as in my answer 
to question 1 (a), supra. 
2. G. L., c. 116, § 1, par. 5, provides: — 

A person who enlisted and was mustered into the military or naval 
service of the United States, as a part of the quota of a town in the 
commonwealth under any call of the president of the United States 
during the war of the rebellion or any war between the United States 
and any foreign power, or who was assigned as a part of the quota 
thereof after having enlisted and been mustered into said service, and 
his wife or widow and minor children, shall be deemed thereby to have 
acquired a settlement in such town, provided that he served for not 
less than one year, or died or became disabled from wounds or disease 
received or contracted while engaged in such service, or while a prisoner 
of the enemy; and any person who would otherwise be entitled to a 
settlement under this clause, but who was not a part of the quota of 
any town, shall, if he served as a part of the quota of the common- 
wealth, be deemed to have acquired a settlement, for himself, his wife 
or widow and minor children, in the place where he actually resided at 
the time of his enlistment. Any person who was inducted into the 
military or naval forces of the United States under the federal selective 
service act, or who enlisted in said forces in time of war between the 
United States and any foreign power, whether he served as a part of 
the quota of the commonwealth or not, and his wife or widow and minor 
children shall, subject to the same proviso, be deemed to have acquired 
a settlement in the place where he actually resided in this common- 
wealth at the time of his induction or enlistment. But these provisions 
shall not apply to any person who enlisted and received a bounty for 
such enlistment in more than one place unless the second enlistment was 
made after an honorable discharge from the first term of service, nor to 
any person who has been proved guilty of wilful desertion, or who left the 
ser\dce otherwise than by reason of disability or an honorable discharge. 

This statute has recently been interpreted in an opinion rendered 
by this department to Mr. Richard R. Flynn, Commissioner of 
State Aid and Pensions, dated Feb. 9, 1922, wherein it is decided 
that "a soldier who served in the Philippine insurrection is not to 
be regarded as having been engaged in a war against a foreign 
power." I therefore answer your second question in the negative. 



410 



OPINIONS OF THE ATTORNEY-GENERAL. 



Constitutional Law 



Impairment of Contract — Change 
OF Remedy. 



To the House 
Committee 
on Rules. 

1922 
March 1. 



The Legislature can impose conditions on which a particular use of property will 
be authorized. 

Where an obligation or liability exists, the Legislature can change the remedy by 
which it is to be enforced. 

St. 1921, c. 386, § 5, providing for compensation for diminution of value of property 
suffered by reason of the use of a tract of land taken by eminent domain by 
the Boston Elevated Railway Company, to be determined by the court with- 
out a jury, may be amended by substituting the word "with" for the word 
"without," since a valid obligation was thereby imposed, and the proposed 
amendment merely changes the remedy for its enforcement. 

As chairman of the House committee on rules, you have trans- 
mitted to me a petition relative to the taking of certain interests 
in land in the city of Boston by the Boston Elevated Railway 
Company, with its accompanying bill, and have asked my opinion 
whether this bill, if enactedinto law, would be constitutional. 
The bill is as follows : — 

An Act relative to the Taking of Certain Interests in Land 

IN the City of Boston by the Boston Elevated Railway 

Company. 

Section 1. Section five of chapter three hundred and eight j^-six 

of the Acts of nineteen hundred and twenty-one is hereby amended by 

striking out, in the twenty-fifth line thereof, the word "without" and 

substituting therefor the word : — with, — so that said sentence in the 

twenty-fourtli and twenty-fifth fines wiU read : — Such petitions shall 

be heard by the court with a jury. 

St. 1921, c. 386, section 5 of which the bill proposes to amend, is 
entitled " An Act authorizing the Boston Elevated Railway Com- 
pany to take certain interests in land in the city of Boston." 

By section 1 the Boston Elevated Railway Company is au- 
thorized and empowered to take by eminent domain for railway 
purposes certain rights and interests, therein specified, in and to a 
certain parcel of land in the city of Boston on Hyde Park Avenue 
and Walk Hill Street, containing about 4,404 square feet, said 
rights and interests being an easement to locate, construct, main- 
tain and operate an elevated railway, and the right to construct, 



J. WESTON ALLEN, ATTORNEY-GENERAL. 411 

maintain and operate surface car tracks, sewer and drain connec- 
tions and retaining walls in, upon and across the premises described. 
Sections 3 and 5 of said act are as follows : — 

Section 3. If said company and said city, or any person having 
any right or interest in said property which is injured by such taking, 
are unable to agree as to the damages sustained by the city or any such 
person on account of such taking, such damages may be determined 
by a jury in the superior court for the county* of Suffolk, on the petition 
therefor of said city or of said person filed in the clerk's office of said 
court within one year after such taking, and judgment shall be entered 
upon the determination of such jury, with interest from the date of 
taking, and costs shall be taxed and execution issued in favor of the 
prevailing party as in civil cases. 

Section 5. The owners, lessees, mortgagees and other persons hav- 
ing an estate in lands abutting on Walk Hill street or Hyde Park avenue 
opposite a tract of land bounded by Washington street. Walk Hill 
street, Hyde Park Avenue, Toll Gate way and land of the Old Colony 
Railroad Company which the Boston Elevated Railway Company has 
heretofore acquired or may hereafter acquire, shall be entitled to reason- 
able compensation from the Boston Elevated Railway Company for 
any diminution in the fair market value of their said property suffered 
by them by reason of the use of said tract of land for an elevated rail- 
way, terminal, repair shop or other railway purposes, and the construc- 
tion of an elevated railway connecting said terminal with the elevated 
railway system of the Boston Elevated Railway Company under plans 
heretofore approved by .the department of public utilities which said 
company is hereby authorized to construct. Any such person may at 
any time within three years after the beginning of use of any part of 
said land for any of said purposes, file in the clerk's office of the superior 
court for the county of Suffolk, a petition setting forth his claim against 
the corporation. He shall give said corporation fourteen daj's' notice 
of the filing of such petition and an answer thereto shall be filed by the 
corporation within thirty days from the return day of such notice. 
Such petition shall be heard by the court without a jury. Judgment 
shall be entered upon the finding together with interest from the date 
of the filing of the petition and execution shall issue as in other ci\al 
cases. The provisions of chapter seventy-nine of the General Laws 
relative to cases where damages are claimed to estates in which two 
or more persons have different, separate or several interests shall apply 
to all such proceedings. Such taking shall constitute a covenant and 
agreement by the company with said owners, lessees, mortgagees and 



412 OPINIONS OF THE ATTORNEY-GENERAL. 

other persons that they shall be entitled to recover such compensation 
in the manner hereinabove provided. 

You do not state what action, if any, has been taken by the 
Boston Elevated Railway Company under this act; but I under- 
stand that the taking has been made and that construction of a 
terminal on the tract of land described in section 5 has been begun. 

There can be no doubt that, in this State, where land or an ease- 
ment in land is taken by eminent domain, any interference with 
light, air and prospect caused by such taking and resulting in 
damage to the property interfered with is a proper element of 
damage, for which compensation may be awarded. McKeon v. 
New England R.R. Co., 199 Mass. 292, 295; Opiniofi of the Jus- 
tices, 208 Mass. 603, 605; Story v. New York EL R. Co., 90 N. Y. 
122; Lahr v. Metro-politanEl. Ry. Co., 104 N. Y. 268. 

I assume that where a taking by eminent domain is authorized 
by statute, with a provision fixing the method by which the 
damages of those entitled thereto shall be determined, the Legis- 
lature may subsequently, even after the taking has been made, 
change that method by an amendment. See Danforth v. Groton 
Water Co., 178 Mass. 472; 20 C. J. 878. 

But in St. 1921, c. 386, it is section 3 and not section 5 wliich 
provides for the determination of all damages caused by the 
taking. The right to light, air and prospect is a right in the prop- 
erty taken, interference with which will entitle the owner of 
abutting land to compensation under section 3. McKeon v. New 
E7igla7id R.R. Co., supra; Opiniori of the Justices, supra. Section 
5 gives a further right to persons not entitled to compensation 
under section 3. The right given by section 5 is not to compensa- 
tion for damages caused by the taking. It is a right given to all 
those having an estate in lands abutting on the tract of land 
described in section 5, of which, I am informed, the premises taken 
are a small part, to recover reasonable compensation "for any 
diminution in the fair market value of their said property suffered 
by them by reason of the use of said tract of land for an elevated 
railway, terminal, repair shop or other railway purposes, and the 
construction of an elevated railway connecting said terminal with 



J. WESTON ALLEN, ATTORNEY-GENERAL. 413 

the elevated railway system of the Boston Elevated Railway Com- 
pany." An obligation to pay this compensation, to be recovered 
m the manner ■provided, became valid and binding on the company, 
when the taking was made, by virtue of the provision of the last 
clause in section 5, that " such taking shall constitute a covenant 
and agreement by the company with said owners, lessees, mort- 
gagees and other persons that they shall be entitled to recover such 
compensation in the manner hereinabove provided." The pro- 
posed amendment changes the manner in which compensation 
is to be recovered. Hence the company cannot be bound by its 
agreement to pay compensation determined as provided by the 
amendment. 

But there is a further question to be considered, whether, 
aside from the operation of the last clause of section 5, the obliga- 
tion created by section 5 was within the constitutional power of 
the General Court to create. The Legislature cannot create an 
obligation of one person to another without his consent. Hamp- 
shire County V. Franklin County, 16 Mass. 76; Medford v. Learned, 
16 Mass. 215; CavLp v. Rogers, 44 Conn. 291; New York & Oswego 
Midland R.R. Co. v. Tan Horn, 57 N. Y. 473. But it can impose 
conditions on which a particular use of property will be authorized, 
Covivionwealth v. Parks, 155 Mass. 531; Kihjour v. Gratto, 224 
Mass. 78; Transportation Co. v. Chicago, 99 U. S. 635, 640. The 
obligation imposed by section 5 not only was a condition sanc- 
tioned by this principle, but was a condition of the taking, which 
the company could have declined. Clearly, therefore, the obliga- 
tion was valid. 

Where an obligation or liability exists, the Legislature can 
change the remedy by which it is to be enforced. Covniionu'ealth 
V. Cochituate Bank, 3 Allen, 42; National Surety Co. v. Archi- 
tectural Decorating Co., 226 U. S. 276; Henley v. Myers, 215 U. S. 
373. The proposed amendment is a mere change of remedy. The 
General Court has not agreed that the amount of compensation 
is to be determined in the manner provided by section 5. It is 
within its power to change the method of determination. I 
am therefore of opinion that the bill, if enacted into law, would 
be constitutional. 



414 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Com- 
missioner of 
Public Health. 

1922 
March 2. 



Narcotic Drugs — Confiscation — Disposition. 

Under G. L., c. 94, § 215, the Department of Public Health is vested with dis- 
cretion relative to the disposition of the articles or drugs enumerated, and 
they may be destroyed or disposed of in any way not prohibited by law. 
Said department may deliver such articles or drugs to the United States 
Department of Justice, to be used in evidence, in exchange for such form of 
receipt and upon such conditions as to custody, use and return as the Com- 
missioner of Public Health shall deem advisable. 

You state that certain narcotic drugs were seized by the Boston 
poHce department, samples were examined by your department 
as provided by statute, and certain persons involved in the illegal 
possession of said drugs have been convicted; whereupon the 
drugs were confiscated by the court and were delivered to your 
department on Jan. 27, 1922, in accordance with an order from 
the ]\Iunicipal Court of the Roxbury District of the city of Boston, 
dated Dec. 24, 1921. You also state that you have received a 
written request from the United States Attorney for the District 
of JVIassachusetts, requesting that said drugs be turned over to 
Erwin C. Ruth, narcotic inspector in charge, Room 452, Little 
Building, Boston, Mass., as they are alleged to constitute very 
important evidence in certain investigations which are being 
made by that office. You now request my opinion as to your right 
to surrender said articles to Dr. Ruth for said purpose. 

G. L., c. 94, § 215, provides: — 

If after such notice as the court or trial justice orders it appears that 
any drug seized under the preceding section was, at the time of the 
making of the complaint, unlawfully in the possession of the person 
alleged therein, the court or trial justice shall order that such article 
or drug so seized be forfeited to the commonwealth and shall order 
such article or drug sent to the department of public health. Possession 
of such drug shall be prima facie evidence that such possession was in 
violation of law. Said department may destroy such article or drug 
or cause it to be destroyed or to be disposed of in any way not prohibited 
by law, and, after paying the cost of the transportation and disposition 
of the same, it shall pay over the net proceeds to the commonwealth. 
Section eight of chapter two hundred and seventy-six shall apply to 
all judgments rendered and orders made under this and the preceding 
section. 



J. WESTON ALLEN, ATTORNEY-GENERAL. 415 

It appears from this statute that considerable discretion is 
vested in the Department of PubHc Health relative to the disposi- 
tion of such articles or drugs. It is clear that the drugs in question 
are now under the control of the Department of Public Health, 
and may be destroyed or disposed of in any way not prohibited 
by law. I am aware of no legal prohibition which would prevent 
your delivering them for the purpose designated, in exchange for 
such form of receipt and upon such conditions as to custody, use 
and return as in j'our discretion shall be deemed most advisable. 



Constitutional Law — "Anti-aid" Amendment — Paiiment 

TO PRIVATELY CONTROLLED HoSPITAL FOR DeAF, DuMB 

OR Blind of Reasonable Compensation for Support 

RENDERED TO SuCH PERSONS. 

Mass. Const. Amend. XLVI, § 2, forbids the use of public credit, public property 
or public funds "for the purpose of founding, maintaining or aiding" any 
privately controlled institution as defined in that section. 

A bill which authorizes payment out of public funds to privately controlled hos- 
pitals or infirmaries for the treatment of the eye and ear, of not more than 
reasonable compensation for care rendered to persons suffering from diseases 
of the eye or ear, who are in whole or in part unable to care for themselves, 
to the extent that such persons are unable to care for themselves, is within 
the exception made by Mass. Const. Amend. XLVI, § 3, and would not be 
unconstitutional. 

The committee has under consideration Senate Bill No. 293, to the com- 
mittee on 

and requests that I advise it whether or not such proposed legis- ^"I'g^a^^'*'*^- 
lation would be constitutional. Said bill reads as follows: — Marches. 

An Act for the Relief of Certain Persons threatened ttith 
Blindness or Deafness. 
Chapter one hundred and twenty-one of the General Laws is hereby 
amended by adding at the end thereof the following new section : — Sec- 
tion Ji.2. The department maj^ also, under such regulations as it may 
from time to time establish, for the purpose of preventing blindness 
or deafness or for conserving sight or hearing, authorize persons suffer- 
ing from diseases of the ej^e or ear to go for care or support during 
treatment to such hospital or infirmaries for the treatment of the eye 
or ear as may be approved by the commissioner of public health, and 
the ordinary and reasonable compensation for such care or support 



416 OPINIONS OF THE ATTORNEY-GENERAL. 

actually rendered by said infirmary or other hospitals or infirmaries to 
such persons as may be in whole or in part unable to support or care 
for themselves shall be paid by the commonwealth. In so far as such 
persons, or the parents or guardians of any children among them, are 
able in whole or in part to provide for care or support received they 
shall, to the extent of their ability, reimburse the commonwealth 
therefor. 

The answer to your question depends upon Mass. Const. Amend. 
XLVI. The second section of that amendment forbids, among 
other things, a grant of public money for the purpose of founding, 
maintaining or aiding "any . . . infirmary, hospital, institution, 
or educational, charitable or religious undertaking which is not 
publicly owned and under the exclusive control, order and super- 
intendence of public officers or public agents authorized by the 
commonwealth or federal authority or both. ..." Under this 
section the question whether an institution may receive State 
aid depends upon the character of the institution. Opinion of 
the Attorney General to the committee on bills in the third read- 
ing, April 1, 1921 (VI Op. Atty.-Gen. 117). As the proposed 
bill is designed to provide aid to persons suffering from diseases 
of the eye and ear, rather than aid to particular institutions, it 
is not obnoxious to the prohibitions of the second section of the 
amendment. 

Section 3 of the amendment provides: — ■ 

Nothing herein contained shall be construed to prevent the common- 
wealth, or any political division thereof, from paying to privately con- 
trolled hospitals, infirmaries, or institutions for the deaf, dumb or blind 
not more than the ordinary and reasonable compensation for care or 
support actually rendered or furnished by such hospitals, infirmaries 
or institutions to such persons as may be in whole or in part unable to 
support or care for themselves. 

This section introduces an exception to the broad prohibitions 
contained in section 2. Although the Commonwealth cannot 
directly aid a privately controlled hospital, infirmary or institu- 
tion for the deaf, dumb or blind, it may send deaf, dumb or blind 
persons to a privately controlled hospital, infirmary or institution 
for treatment, and pay not more than reasonable compensation 



J. WESTON ALLEN, ATTORNEY-GENERAL. 417 

for the service rendered by such hospital, infirmary or institution, 
provided that the persons so treated are in whole or in part unable 
to support or care for themselves. 

In this aspect of the matter the test is whether the person aided 
comes within the provisions of section 3, while under section 2 
the nature of the institution determines whether State aid may 
be directly afforded to it. For the purpose of this bill it is not 
material to determine whether the words "for the deaf, dumb or 
blind" qualify the words "hospitals, infirmaries, or institutions," 
or only the word "institutions." 

The present bill appears to have been drawn with the third 
section of the amendment in view. It employs the same language 
in defining the class who may receive aid, namely, "such persons 
as may be in whole or in part unable to support or care for them- 
selves." As it further provides that in so far as such persons are 
able in whole or in part to pay for the care or support received, 
they shall, to the extent of their ability, reimburse the Common- 
wealth, it avoids any constitutional question which might arise 
from an expenditure of public funds for the benefit of persons able 
to care for themselves. I need not, therefore, consider whether 
an expenditure of public funds to care for a person in part able 
to care for himself would encounter constitutional objection upon 
the ground that such expenditure was not for a public purpose. 
Under these circumstances I perceive no constitutional defect 
in the bill. 



Taxation — Distribution of National Bank Stock Tax — 
Place of Assessment of Personal Property of Deceased 
Persons. 

It is a general principle that taxes on personal property of deceased persons should 

be assessed in the place where the deceased last dwelt. 
Under G. L., c. 63, § 5, distribution of a tax assessed under G. L., c. 63, § 1, to the 

executors of a deceased person should be credited to the town where he last 

dwelt. 

You ask my opinion as to how the Board of Appeal should 1^'^^^^°^^'^ 
decide the matter of the appeal of the town of Orleans from the ^''1922^^®*' 
determination of the Commissioner of Corporations and Taxation ^fffl^*- 



418 OPINIONS OF THE ATTORNEY-GENERAL. 

regarding the distribution of the national bank stock tax, as pro- 
vided by G. L., c. 63, §§ 1-10. You state that the facts appear 
not to be disputed, but that there appears to be a question of law 
involved which the Board does not feel qualified to answer. 

From the information furnished me by the Commissioner it 
appears that a resident of the town of Orleans died on June 18, 
1917, the owner of shares of stock in the First National Bank of 
Boston. During his life the tax on these shares, imposed by the 
statutes providing for taxation of bank shares (St. 1909, c. 490, 
pt. Ill, § 11; G. L., c. 63, § 1), and assessed to the owner in, and 
collected by, the city of Boston, had been credited to Orleans under 
statutory provisions (St. 1909, c. 490, pt. Ill, § 15; G. L., c. 63, 
§ 5). For the two years next succeeding the death of the decedent, 
viz., 1918 and 1919, the tax on those shares held by and in the name 
of his executors was similarly credited. At some time certain of 
the shares were transferred by the executors to trustees under the 
will, and no question arises as to the tax on those shares. In 1920 
the tax on the balance of the shares was credited to Beverly and 
Boston as the domicils of the beneficiaries under the decedent's 
will. The town of Orleans appealed from the decision of the Com- 
missioner in so crediting the tax, and the Board of Appeal decided 
the appeal in favor of Orleans. 

Certain shares of the stock of the First National Bank formerly 
owned by the decedent are now in the hands of his executors, and 
stand in their names. For the year 1921 the Commissioner has 
credited half the amount of the tax assessed upon those shares to 
Beverly, that being the city where one of the two executors was 
an inhabitant on April 1, 1921. As to the other half of the tax no 
credit was given, because the other executor is the Old Colony 
Trust Company, and the statutory provision for credit does not 
apply. The town of Orleans has appealed from such determination 
to the Board of Appeal, claiming that a credit for the total amount 
of said tax should be given to that town. 

G. L., c. 63, § 1, provides that "all shares of stock in banks, 
whether of issue or not, existing by authority of the United States 
. . . and located in the commonwealth, shall be assessed to the 
owner thereof in the town where such bank is located, and not 



J. WESTON ALLEN, ATTORNEY-GENERAL. 419 

elsewhere, in the assessment of state, county, city and town taxes, 
whether such owner is a resident of said town or not. ..." Sec- 
tion 5 of said chapter is as follows : — 

Said commissioner shall thereupon determine the amount of the tax 
assessed upon shares in each of said banks which would not be liable 
to taxation in said town according to chapter fifty-nine; and such 
amount shall be a charge against said town. He shall, in like manner, 
determine the amount of tax so assessed upon shares which would be 
so liable to taxation in each town other than that where the bank is 
located; and such amount shall be a credit to such town. He shall 
forthwith give written notice by mail or at their office to the assessors 
of each town thereby affected of the aggregate amount so charged 
against and credited to it; and they may within ten days after notice 
of such determination appeal therefrom to the board of appeal from 
decisions of the commissioner. 

In brief, these sections provide for the assessment of taxes on 
shares of stock in national banks at the places where the banks 
are located, and the distribution of taxes so assessed among the 
towns which would have had the benefit if the shares had been 
taxable as other personal property. The distribution of the present 
tax is therefore determined by ascertaining where the shares in 
question would have been assessed had they been taxed in the 
same manner as other personal property. 

G. L., c. 59, § 18, provides that — 

All taxable personal estate within or without the commonwealth 
shall be assessed to the owner in the town where he is an inhabitant on 
April first, except as provided in chapter sixty-three and in the following 
clauses of this section : . . . 

Clause 3d of said section provides as follows: — 

Personal property of deceased persons, before the appointment of 
an executor or administrator, shall be assessed in general terms to the 
estate of the deceased, and the executor or administrator subsequently 
appointed shall be liable for the tax so assessed as though assessed to 
him. 

This clause is in the form of an amendment made by Gen. 
St. 1918, c. 129. Prior to that amendment the clause was as it 
appears in St. 1909, c. 490, pt. I, § 23, cl. 7th, as follows: — 



420 OPINIONS OF THE ATTORNEY-GENERAL. 

Personal property of deceased persons shall be assessed in the city 
or town in which the deceased last dwelt. Before the appointment of 
an executor or administrator it shall be assessed in general terms to 
the estate of the deceased, and the executor or administrator subse- 
quently appointed shall be liable for the tax so assessed as though 
assessed to him. After such appointment it shall be assessed to such 
executor or administrator for three years or until it has been distrib- 
uted and notice of such distribution has been given to the assessors 
stating the name and residence of the several parties interested in the 
estate who are inhabitants of the commonwealth and the amount paid 
to each. After three years from the date of such appointment it shall 
be assessed according to the provisions of clause Fifth of this section. 

Clause 5th provided for assessment of property held in trust by 
an executor, administrator or trustee, to such person, in the city 
or town where the beneficiary resided. 

These provisions contained clear directions w^hich would deter- 
mine the duty of the Commissioner under the present circum- 
stances. The tax would be assessable to the executors in the city 
or town in which the deceased last dwelt until the end of three 
years from their appointment, or until it had been distributed and 
notice given, and after that time would be assessable to them in 
the places of residence of the beneficiaries. 

It seems to be agreed that the reason for the change made by 
the act of 1918, in the clause last above quoted, was because it 
was thought that the provisions which were eliminated had been 
rendered unnecessary b}' the income tax law, which altered the 
mode of taxation of intangible personal property. It was thought 
that a consistent system had been established for the taxation of 
tangible personal property at its situs, and intangible personal 
property merely through the income tax. The application of these 
provisions to the distribution of the tax on national bank shares 
was overlooked. 

The question which I have to determine is the proper method 
of crediting the tax collected on shares of stock in national banks 
in the estate of a deceased person and in the hands of that person's 
executor or administrator. It must be conceded that the question 
is a difficult one and cannot be answered with entire certainty. 

Some argument is made by the Commissioner that the executors 



J. WESTON ALLEN, ATTORNEY-GENERAL. 421 

here should be treated as trustees, but the cases are clear that 
until the executor has made an actual transfer to the trustee, 
even where the executor and the trustee are the same person, and 
such transfer is shown by his account and approved by decree of 
court, the property of a deceased person must be regarded as re- 
maining in the hands of his executor. Hardy v. Yarmouth, 6 Allen, 
277; Williams v. Acion, 219 Mass. 520, 524. 

All the personal property of a testator vests in his executor by 
the probate of the will, but the ownership of the executor is a 
qualified one. He is said to hold title to his testator's goods in 
autre droit, and not in his own right. Weeks v. Gibbs, 9 Mass. 74, 
75, 76; Hutchins v. State Bank, 12 Met. 421, 425; Lathrop v. 
Merrill, 207 Mass. 6, 10. 

Statutory provisions in our Commonwealth for assessing 
personal estates of deceased persons first appear in the Revised 
Statutes (R. S., c. 7, § 10, cl. 7th), which provided as follows: — 

The personal estate of deceased persons, which shall be in the hands 
of their executors or administrators and not distributed, shall be as- 
sessed to the executors and administrators, in the town where the 
deceased person last dwelt, until they shall give notice to the assessors, 
that the estate has been distributed and paid over to the parties inter- 
ested therein. 

Prior to the enactment of the Revised Statutes the court had 
held such property to be assessable, not upon the deceased person, 
but upon his estate in the hands of his representatives. Cook v. 
Leland, 5 Pick. 236. 

With respect to R. S., c. 7, § 10, cl. 7th, the commissioners on 
the Revised Statutes said in their report : — 

After the decease of a person, all taxes must be assessed to his heirs, 
executors, or administrators, or whomever may be in possession of it, 
5 Pick. Rep. 236 {Cook v. Leland); and the provision of this section is 
intended as a practical rule for assessors, who, whatever diligence and 
care they may exercise, often find that they have assessed property' to 
executors or administrators after it has gone from their hands and been 
distributed among the heirs and legatees. It is respectfully suggested that 
some provision is necessary on this subject, to point out the respective 
duties of the assessors and the representatives of deceased persons. 



422 OPINIONS OF THE ATTORNEY-GENERAL. 

In Vaughan v. Street Commissioners, 154 Mass. 143, 145, the 
court, after referring to this note, said: — 

It is evident that the statute thus passed provided for two things: 
the place where and the person to whom the personal estate of a de- 
ceased person should be assessed. 

The amendment made by Gen. St. 1918, c. 129, has left the law 
as it was before the enactment of R. S., c. 7, § 10, cl. 7th. There is 
no statute now covering the subject of that provision. 

In the case of Smith v. Norihampton Bank, 4 Cush. 1, 12, Chief 
Justice Shaw says as follows : — 

It may be well admitted, that the liabilit}^ of property to taxation 
in this commonwealth depends upon the provisions of statutes; but 
the statutes upon this subject, like all others, must be construed with 
a reference to the reasons and principles of the common law, and with a 
just regard to the subject matter to which thej' appi}'. 

While the decisions in Massachusetts have not established any 
common law principle as to the place where the personal property 
of a deceased person in the hands of an executor or administra- 
tor should be assessed, there are decisions in other States, where 
the subject is not covered by statute, which hold, in accordance 
with the rule defined by the Revised Statutes, that taxes on such 
property should be assessed in the place where the deceased last 
dwelt. They rest on the principle that the situs of personal prop- 
erty, for taxation purposes, does not change upon the death of the 
owner. San Francisco y. Lux, 64 Cal. 481 ; Cornwall v. Todd, 38 
Conn. 443; Millsaps v. Cify of Jackson, 78 Miss. 537; Stephens 
V. Mayor of Boonemlle, 34 Mo. 323; Ciiy of Staunton v. Stoufs 
Executor, 86 Va. 321; Rixey's Executors v. Commonwealth, 125 
Va. 337; Commonwealih v. Peebles, 134 Ky. 121; Alexander's 
Executor v. City of Versailles, 152 Ky. 357; State v. Beardsley, 77 
Fla. 803; City of Blakely \. Hilton, 150 Ga. 27; Burroughs on 
Taxation, § 98; Desty on Taxation, vol. I, p. 333. 

The case of Dallinger v. Rapello, 14 Fed. 32, should be mentioned. 
It holds that personal property of a deceased inhabitant of Massa- 
chusetts is not taxable after the appointment of an executor and 



J. WESTON ALLEN, ATTORNEY-GENERAL. 423 

before distribution, when the property is not within the Common- 
wealth, and neither the executor nor any person having an interest 
in or right to receive the property has a domicil or residence there. 
This case seems not to be inconsistent with tiie other cases cited. 
In view of the fact that an executor or administrator is not an 
absolute but a qualified owner of the decedent's estate, that G. L., 
c. 59, § 18, cl. 3d, provides for the assessment of personal property 
of deceased persons before the appointment of an executor or 
administrator to the estate, apparently assuming that such assess- 
ment shall be at the place where the deceased last dwelt, and that 
the omission of the following provisions in the clause as it read 
before the amendment of 1918 was, so far as it affects the crediting 
of the tax from national bank shares, admittedly due to an over- 
sight and not to an intention to change the existing rule; and in 
view of what seems to be the general principle that the personal 
property of deceased persons in the process of administration, 
while it should be assessed to their personal representatives, should 
be so assessed at the place where the deceased list dwelt, on the 
theory or fiction that the situs of the property is not changed by 
the death — it is my opinion that that procedure should be fol- 
lowed in the present instance, and that the town of Orleans should 
be credited with the tax in question. 



District Attorneys — Members of the Bar — Constitu- 
tional Law. 

An act requiring that district attorneys shall be members of the bar is constitu- 
tional. 

A district attorney is not an officer created by or provided for in the Constitution. 

The Legislature may constitutionally require that such officers shall possess cer- 
tain qualifications, provide