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

OFFICIAL OPINIONS 



OF THE 



ATTORNEY-GENERAL 



OF 



2[l|p fflnmmnnmpaltli of ilaaaarljUHFtta 



PUBLISHED BY THE 

ATTORNEY-GENERAL 



Volume VII 

1923-1925 



lM-9-'28, No. 3397 



THIS VOLUME CONTAINS 
THE OPINIONS OF ATTORNEY-GENERAL 

JAY R. BENTON, 1923 - 1925 

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 the Acts of 
1928, chapter 405, section 3. 

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

JOSEPH E. WARNER, 

Attorney-General. 
Boston, January, 1929. 



Table of Statutes cited or referred to in this 

Volume. 



! 10126 . 
!§ 1831-3 



United States Compiled Statutes. 



PAGE 

. 104 
. 557 



1014 . 
5219 . 
5219, cl. 1(e) 
5278 . 



United States Revised Statutes. 



PAGE 

507 

542, 543, 544, 548, 549, 654, 655 

551 

. 104, 610 



United States Constitution. 



Art. I, §§7, 12 
Art. I, § 8 
Art. I, § 10 
Art. IV, §§ 1, 2 
Art. IV, § 2 . 
Art. VI . 



PAGE 
. 138 

137, 138, 173 

11, 137 

. 609, 610 

. 104 

. 610 



Constitution of the Commonwealth. 
Dec. of Rights, art. IX 

art. X . 

art. XIII 

art. XIX 

art. XXX 

Const., pt. 2, c. I, § I, art. Ill 



§ I, art. IV 

§ II, art. II 

§ II, art. Ill 

§ III, art. XI 

c. II, § I, art. IV 

§ I, art. IX 

§ II, art. II 

§ III, art. I 

§ III, arts. V, VI, VIII, IX 

§ IV, art. I 

§ IV, art. II 

c. Ill, art. I 

art. II 

arts. II, V 

art. Ill . 



92, 110 



XI 



123, 



132, 



189, 



45, 108, 
110, 111, 
447, 621, 



126, 



PAGE 

621, 622 
12, 13 

119, 122 

622, 623 
. 51 
. 189 

622, 625 

108, 701 
. 625 
. 625 
. 624 
49, 580 
. 625 

624, 742 
. 625 
. 580 
. 625 

581,, 625 
. 594 

624, 625 
. 107 



Vlll 



STATUTES CITED. 



Constitution of the Commonwealth — Con. 



Coii.st., pt. 2, c. VI, arts. I, 
AiTipnd'ts Const., art. II 

art. IV . 

art. VI . 

art. XIV . 

art. XVI . 

art. XVII 

art. XXXVII 

art. XLIV 

art. XLVI 

art. XLVI, § 2 

art. XLVII 

art. XLVIII 

art. XLIX 

art. LVII . 

art. LVIII 

art. LXIII. I 1 

art. LXIII, § 5 

art. LXIV 

art. LXVI 

art. LXIX, § 2 



II 



PAGE 

. 625 
. 621,622 
107, 128, 581, 625 
. 719 
. 621 
. 625 
44, 45, 625 
. 128, 581, 625 
541, 546, 547, 548, 550, 551 
67, 76, 77, 502 
74, 616, 617, 641 
246, 250 
747, 749 
. 181 
. 582 
. 625 
. 131 
. 628 
. 44 
. 273 
. 694 



Statutes of the Commonwealth. 









page 








PAGE 


1781, c. 17 95 


1874, c. 221 145 


1793, c. 42, §6 






. 61 


1876, c. 203, §§ 14, 16 




. 346 


1795, c. 81 






. 121 


1877, c. 218 . 




. 73 


1818, c. 130, § 6 






. 100 


1878, c. 214 . 






. 578 


1833, c. 148, § 3 






. 61 


§2 






. 492 


1842, c. 60 






. 145 


c. 244 . 






. 675 


1844, c. 102, § 1 






. 61 


§3 






. 696 


1847, c. 224 . 






. 675 


1881, c. 304, §§ 1-3 






41, 303 


1849, c. 158, §1 






. 61 


§6 






. 42 


1851, c. 7 






. 500 


1882, c. 208 . 






. 493 


1855, c. 414, §§ 2, 4, 


5 




. 371 


1884, c. 265 . 






. 505 


1860, c. 206 . 






. 659 


1885, c. 323, § 2 






675, 696 


c. 217 . 






. 278 


c. 344, § 3 






. 317 


c. 221, § 3 






. 459 


1886, c. 32 






. 73 


c. 3, § 1 . 






. 455 


1887, c. 85, § 15 






. 313 


1864, c. 208 . 






. 300 


c. 252, § 11 






. 460 


1865, c. 230 . 






. 342 


1888, c. 318, §§ 2, 4 






. 316 


c. 283 . 






. 304 


c. 349 . 






. 296 


§§1,4,5 






. 301 


§6 






. 297 


1867, c. 275 . 






. 265 


c. 413 . 






. 313 


c. 285 . 






. 145 


1889, c. 279, § 2 






. 228 


1868, c. 328 . 






. 342 


c. 282 . 






. 74 


1869, c. 182, § 3 






. 101 


c. 305 . 






. 367 


c. .384 . 






. 268 


c. 465, § 1 






. 178 


1870, c. .392, § 3 






. 342 


1890, c. 315, § 2 




31 


3, 314, 315 



STATUTES CITED. 



IX 



Statutes of the Commonwealth — Con. 



1890, 

1891, 
1892, 
1893, 

1894. 



1895, 
1896, 
1897, 

1898, 



1899, 
1901, 
1902, 

1903, 
1904, 



1905, 
1906, 



1907, 



c. 373 . 

c. 440, § 8 

c. 364, § 15 

c. 404 . 

c. 407 . 

c. 450 . 

c. 399 . 

c. 481, §§41,42 

c. 491, § 41 

c. 532 . 

c. 548 . 

c. 488, § 4 

c. 504 . 

c. 276 . 

c. 447 . 

c. 165 . 

c. 294, § 1 

c. 500 . 

§10 

c. 282, § 2 

§3 

c. 467 . 

c. 469 . 

c. 496, § 11 

c. 578 . 

§1 

§ 6-10 

§11 

§28 

c. 408, §§ 6, 42 

c. 447 . 

c. 439 . 

c. 525 . 

c. 342 . 

c. 483 . 

§1.2 

c. 322 . 
c. 349, § 1 

c. 437 . 

§72 

c. 465, § 3 

c. 314 . 

§2 

c. 344, § 1 

c. 189 . 

c. 210 . 

c. 291 . 



§ 10 



c. 479 
c. 550 



675, 



PAGE 
. 74 

. 532 
. 236 
. 297 
. 259 
. 297 
. 294 
. 493 
. 460 
. 297 
17, 28 
. 671 
. 505 
. 460 
. 536 
. 460 
. 505 
28, 338 
31, 32, 339 
. 354 
. 355 

472, 473 

. 557 

. 371 

32, 339, 340 

30, 31, 32, 248 

29, 30, 32 

. 31 

30, 31 

. 460 

. 557 

. 493 

. 297 

. 302 

367, 368 
. 364 
. 460 
. 408 
. 302 
. 304 
. 661 
. 698 
. 97 
. 235 

314, 315 

697, 698 
. 697 
695, 696, 698, 736 
. 346 
. 238 



1907, 



1908, 



c. 574 . 

c. 576, § 75 

§76 

c. 584 . 
c. 59, cl. 5th 

c. 390, § 2 

c. 511 . 

c. 605 . 



§§ 1, 2, 



1909, c. 419 



c. 439 . 

c. 444 . 

c. 486, § 20 

§§ 1, 20, 30 

§ 30 . 

c. 490, pt. Ill, § 41 

§ 57 

pt. 1, §§4, 16 

c, 504, § 62 

c. 514, § 25 

c. 527, § 8 

c. 534 . 

c. 536 . 

1910, c. 567 

1911, c. 291 

c. 532, §3, par. (2) 

c. 727. § 3 

c. 740 . 

c. 751 . 

1912, c. 723, §§ 1, 2 

c. 726, § 5 

1913, c. 758 . 

c. 803, §§ 1, 3 

c. 806 . 

c. 819 . 

1914, c. 18 
§1 

c. 437 . 

c. 795. § 4 

1915 (Gen.) c. 221, § 

c. 267 

c. 268 

1916, c. 225 . 
§§ 75, 76 

(Gen.) c. 37 

c. 98 

(Gen.) c. 242, § 3 



PAGE 

. 406 

484. 485 
. 484 

453, 454 
. 364 

319, 322 

. 490 

. 160 

. 159 

. 160 

. 159 

. 302 

. 359 

. 730 

. 566 

. 38 

. 302 

cl. 3rd . 306 

306, 733, 734 

-18 . . 42 

208, 209 
. 571 
. 498 
. 275 
. 238 
. 397 
. 347 
. 290 

440. 441 
. 160 
. 19 
. 74 
. 521 
. 146 
. 146 
. 599 
. 494 
. 113 
. 320 

319, 323 
. 160 
. 710 
. 743 
. 236 
. 160 
. 522 
. 524 
. 314 
. 383 
. 418 



STATUTES CITED. 



Statutes of the Commonwealth — Con. 

1920 c. 327, § 2 
c. 368, § 3 
c. 555, § 1 
c. 560 
c. 572 




211, 



PAGE 

. 357 
. 229 
538, 539 
113, 446 
. 743 
. 744 
, 247 
. 247 
. 731 
. 724 
. 414 
. 414 
. 146 
. 431 
213 
212 
145, 146, 681 
. 462 
187, 188 
244, 252 
. 247 
. 188 
422, 423 
. 593 
. 496 
. 684 
. 23 
422, 423 
. 504 
. 709 
. 234 
. 409 
. 177 
450, 453 
. 454 
. 660 
. 165 
. 294 
. 461 
343, 344 
. 177 
86,87 
. 724 
75, 437 
646, 647 
244, 248 
. 387 
. 171 
. 457 
. 525 



STATUTES CITED. 



XI 



Statutes of the Commonwealth — Con. 



1922 



1, sub. sec. 



c. 545, 



PAGE 
. 411 

96, 97, 98, 100 
. 387 
. 509 
. 234 
. 125 
. 394 
. 496 

287, 288 
. 162 
402, 403, 405 

734, 735 
. 705 

704, 705 
. 131 
. 530 
. 688 
5 
. 700 
. 588 
. 284 
. 608 
. 418 
. 431 

244, 248 

671, 672 
. 338 
. 517 

687, 688 

704, 705 
. 389 
. 390 
. 411 
. 720 
. 560 
. 527 
. 403 

517, 687 



1923, 
1924, 



494, item 6236 

19 
c. 93 
c. 152 
c. 156 
c. 165 
c. 183 
c. 203 

c. 251 



1925, 



1, 2, 



c. 369 
c. 395 
c. 416 
c. 442, § 
c. 450 
c. 457 
c. 462 
c. 480 
c. 492, § 
c. 497 

— § 
e. 18 
c. 90 

§ 

c. 124 
c. 169 
c. 201, § 3 
c. 209, § 3 



§1 

c. 295, § 8 

§§9,10 

c. 339, §§2, 3 



1, 2 



2, 3 



3, 4, 



PAGE 

. 403 

603, 627 
. 527 
. 505 
. 461 
. 505 
. 651 
. 743 

744, 745 
. 709 

704, 705 
. 555 

747, 748 
. 606 
. 605 
. 731 
. 721 
. 660 

471, 472 

556, 649 
. 602 

454, 456 
. 597 
. 518 

565, 566 
. 564 

704, 705 
. 704 
. 706 
. 651 
. 749 
. 651 
. 685 
. 745 

744, 746 
. 673 

672, 673 
. 719 



1906, c. 11 
1911, c. 101 
1915, c. 134 



Resolves. 



PAGE 

483, 484 
. 129 
. 42 



1922, c. 50 
1924, c. 20 



PAGE 

. 248 
. 540 



1641-1647 



Colonial Ordinance. 



PAGE 

. 262 



xu 



STATUTES CITED. 



1693-94, c. 3, § 12 



Province Laws. 

PAGE I 

. 44 1779-80, c. 18 



PAGE 

. 635 



7, §5 . 
60, § 26 



Revised Statutes. 

PAGE 

. 573 c. 119, § 12 
. 539 



PAGE 

. 265 



Public Statutes. 







PAGE 








PAGE 


c. 


11, § 5, cl. 3rd . 


. 177 


c. 90, § 14 






. 460 




— §§ 14-16, 4 . 


. 42 


c. 104, § 14 






. 493 


c. 


19, § 3 


. 750 


c. 113, §32 






. 28, 29, 32 


c. 


27, § 21 . 


. 237 


§33 






. 33 


c. 


41, §9 


. 495 


c. 116, §20, 


cl. 


3rd . 


. 367 



Revised Laws. 









page 








PAGE 


c. 12, § 5 . . . 178, 577, 579 


c. 96, § 3 . . . 464, 465, 750 


§§ 16-18, 4 




. 42 


§§ 15, 18 




. 316 


c. 19 . 






. 230 


c. 103, § 9 






. 397 


§7 






228, 229 


c. 104, §§ 27, 28 






. 493 


c. 25, § 26 . 






. 236 


c. 112, § 44 . 






. 29 


c. 35, § 5 






8 


c. 113, § 26 . 






. 267 


c. 39, § 9 






. 495 


c. 116, §§2, 5 . 






. 314 


0. 42, §§ 1, 2, 4, 8 






. 347 


c. 125 . 






. 575 


e. 65, § 15 . 






. 418 


c. 204, §§ 42, 44 






. 400 


c. 90, § 31 . 






. 460 











General Laws. 



c. 1, § 7 . . 

c. 3, §§ 9, 20 

c. 4, § 6 . 

§7 

§9 

c. 5, § 1 . 

§2 

§ 10 

§ 12 

c. 6, § 4 . 

§21 

c. 7 . 

c. 8, §§4,9, 

c. 9, § 11 

c. 10, § 5 
c. 11, § 2 

§3 



12 



PAGE 












PAGE 


. 234 


c. 


12, 


§§ 1-11 . . . .45 


. 702 


— 


— 


§3 






571, 726 


. 585, 588 


— 


— 


§9 






. 377 


236, 478, 684 
. 723 






§§23,24 
§6 






393 


c. 


13, 






. 437 


. 687, 688 
. 456 
. 517 






§§ 16-18 
§25 . 
§5 . 






668 










394, 397 


c. 


15, 






.495 


. 518 


c. 


16, 


§§1,2. 






. 273 


700, 701, 702 
529, 530, 724 






§3 . 
§4 






. 274 
272, 274 


— 


— 






. 687, 688 


c. 


28 








. 509 


. 297 


c. 


29, 


§31 ; 






. 330 


. 324 


c. 


30, 


§5 






. 278 


. 529, 530 
. 529 






§§8. 10 
§21 . 






TnA 










330, 439, 448 


. 530 


c. 


31 








. 509 



STATUTES CITED. 



XllI 



General Laws — Con. 



31 



32, 



§3 . 

§ 18 . 

§§ 19, 21-28 

§20 . 

§21 . 

§26 . 

§43 . 

§44 . 

§45 . 

§§ 1-5 . 

§1 

§2 

§4 

§ 5 308, 

§§ 6-19 



35, 



39, 
40. 



41, 



44, 



45, 
46 



48, 
49, 
52 
53 



194, 



695, 596, 



75, 308, 309, 
. 438, 
439, 
554, 
257. 



437, 438. 
220. 
224, 



§8 

§9 

§ 10 . 

§§49-60 

§57 . 

§§ 75, 76 

§91 . 

§§ 16. 29 

§34 . 

§§ 11, 12, 14 

§1 

§ 15 . 

§22 . 

§32 . 

§2 . 

§§ 16, 20, 29 

§§ 73-79, 80, 81 

§ 107 . 

§ 109 . 

§7 . 

§8 

§ 14 . 

§1 

§§ 17, 21 
§62 . 
§§ 35. 36 



§1 

§§ 18-22 
§§ 19-22 
§24 . 
§34 . 



222 223 224 



113, 446, 



PAGE 


37.75 




38 




570 


228 


229 


199 


557 


90, 91 1 


698, 


699 


698, 


699 




698 




76 


437 


693 


440. 


442 


439 


440 


440 


693 


555 


630 


258 


555 




257 




630 


630, 


631 


646 


647 




647 


521 


523 




631 




656 




657 




588 


236, 


237 




65 


235. 


675 


235, 


237 




417 




586 


638, 


639 




586 




127 




598 


597, 


598 




64 




325 




728 




324 




588 




586 




350 




747 




520 


583. 


584 




113 


520, 


521 




350 



53. 
54 



55. 

58, 

59 



60, 
61 
62 



168 

j§ 115, 
\ 135 
j 158 
\ 16 
517 

l§9, 10 

\27 

J3 

S§11, 15 
S§ 12-14 
5 29 . 
5 57 
j§ 79-81 



116. 1 



63, § 



65. 

66. 

67, 

69, 
70 

71. § 



5 

§ 43. 45 
30 . 
§ 30-52 
32 . 
39 . 

41 . 

42 . 

51 . 

52 . 
§ 53-60 
58 . 
60 . 
§ 61-66 
71 . 
1 

2 
3 

10 . 
§ 12, 
15 
9 



177. 1 



2, 23. 



1 
2 

17. pt. II 
§1-5 . 
4 

§ 61, 63, 64 
65 . 



18 



29,42 



PAGE 

. 376 
. 583 
. 625 

7 

519, 520 

530, 592 

. 531 

176. 571 

. 684 

525, 526 

. 92 

. 306 

78, 573. 574, 580 

. 304 

. 42, 303 

. 573 

. 721. 723 

. 644 

. 406 

40, 41, 741 

. 496 

. 526 

86, 87, 299, 304 

. 303, 547 

. 655 

. 655 

. 217 

. 218, 219 

. 724 

732, 734, 735 

3, 733, 735 

. 1, 3, 4, 5 

. 734 

. 32 

724, 725, 727 

98, 99, 100, 387 

. 498 

. 8, 9, 606 

8. 324, 606 

. 588 

. 586 

554, 555. 556 

500. 502, 503, 504 

593, 594, 700 

. 504 

. 463 

. 347 

, 503 

. 683 

. 685 



XIV 



STATUTES CITED. 



General Laws — Con. 



PAGE 

. 463 
. 495 

. 347, 349 

370, 374, 375 

. 24 

. 58 

45 . . .21 

. 59 
. 404 

. 745, 746 
. 405 

. 283, 405 
. 745 

. 638, 639 
. 405 
. 588 
. 298 
599, 600, 602 
274, 275, 295 
. 235 
. 662 
13, 515, 516, 653, 682 

. 273, 275 

95, 744 

558, 673, 674, 750 

. 316 

. .660 
. 268 
. 259 
. 260 
. 261 
. 142 
. 52 
. 166 
. 702 

. 702, 703 
. 164 
. 166 
. 182 
. 190 

. 212, 213 

. 537, 538 
. 33 
. 587 
. 397 
. 165 
. 462 
. 165 

. 311, 312 
. 311 



c. 101 




11, 13 



78-90, 91 
96. 99, 100 

112 . 
181, 183 

182 . 



c. 112 




c. 127 . 

§7 

§§ 16, 17 

§§ 131, 132 

§§ 131, 133 

§ 136 . 

c. 128, § 14 . 

§24 . 



, 131 



PAGE 

. 418, 419 
165. 312, 419 
. 588 

311, 312 
. 417 
. 166 
. 389 
. 166 

659, 660 
. 565 
. 589 
. 586 
. 732 
. 411 
. 587 
. 470 

370, 375 
. 371 
. 165 
. 10 
. 462 
. 668 
. 667 

665, 667 
. 666 
. 226 

226. 227 
225, 226, 227 
. 343 
. 470 
. 85 

737, 738 
. 90 
. 209 
. 210 

207, 208 
. 626 
. 627 
. 628 
. 210 
. 750 

003, 604 
. 606 
. 606 
. 605 
. 199 
193. 287, 505 
. 193 
. 182 
358. 359, 360 



STATUTES CITED. 



XV 



General. Laws — Can. 











PAGE 






PAGE 


c. 128, § 28 , . . . 358, 360 


c. 158, § 36 588 


c. 129, § 2 








. 457 


c. 159, § 91 


. . . . .586 


§7 








. 457 


c. 160, § 190 . 


. 618 


§8 






. 4 


58, 459, 460 


c. 161, § 89 . 


. 29 


§11 








. 457 


§ 108 . 


346, 347, 348, 349 


§15 








. 416 


c. 164, § 116 . 


. 587 


§27 








. 407 


c. 168, § 47 . 


. 344, 346 


§32 








. 459 


§50 . 


. 345, 346 


§33 








. 459, 460 


§ 54 201, 202, 363, 364, 366, 367, 


c. 130, §§ 24, 32, 33 




. 267, 268 


368, 369, 685, 687 


§§32,36,37,59 




. 608 


c. 169, §§ 2, 3 166 


c. 131, §§ 3-14 




. 409, 410 


c. 171, §5 




. 160 


§ 16 . 






. 60 


§§ 11, 13, 20, 


23 


. 161 


c. 136, § 17 . 






. 211 


c. 172, § 3 




. 314, 315 


c. 138, § 32 . 






. 588 


§7 . 




2 


§76 . 




. 3 


31, 362, 751 


§18 . 




2, 314, 315 


§82 . 






. 362 


§25 . 




. 629 


c. 140, §§ 2, 42, 59, 7 







. 165 


§61 . 




. 200 


§90 . 






. 606, 607 


c. 175 




. 474, 648, 668 


§§96-114 . 






. 607 


§ 2 . 535, 


536, 


537, 552, 568, 716 


§96 . 






. 160, 165 


§3 . 




. 414, 535 


§ 130 . 






. 162 


§§9-12 




. 680 


c. 142, § 3 






. 238, 239 


§14 . 




. 650, 651 


§§4,14 






. 398 


§18 . 




. 71 


c. 143, § 11 . 






. 589 


§20 . 




. 561 


§§ 62-71 






. 494 


§32 . 




. 537 


c. 146, §§ 34-41 






. 231 


§ 47 356, 


357, 4 


30, 535, 536, 537 


c. 147, § 5 






. 294 


§49 . 




, 535 


c. 148, § 14 








. 294 


§51 . 




. 357 


§§ 30-5 


1 






. 453 


§52 . 




. 430 


§30 








294, 450 


§§63,66 




. 431 


§31 








453, 454 


§99 . 




. 670 


§45 








293, 451 


§105 . 




72, 477, 479 


c. 149, §§ 1. 17 








. 146 


§ 107 . 




. 476, 477, 479 


§30 . 








. 148 


§ 108 . 




. 415 


§36 . 








. 149 


§110 . 




. 413, 414 


§56 . 




145, 148, 681, 682 


§118 . 




716, 717, 718 


§§ 1, 60 


-83, 8. 


}, 86 422, 423, 425 


§ 119 . 




. 716 


c. 150, § 5 




. 162, 163 


§ 132 . 436, 481, 484, 485, 486, 


c. 152, § 56 . 








71,72 


487, 690, 691 


§69 . 








. 309 


§ 133 414 


§73 . 

c. 155, § 6 

§9 

§10 . 

§ 15 








. 310 

. 477 

. 752 

751, 752 

. 588 


§ 140 4i 

§ 142 . 

§ 152 . 


n, 48 


2, 483, 484, 485, 

486, 487 

. 436 

. 670, 716 


§22 . 

c. 156, §§ 41, 4^ 


I 






79,80 
. 315 


§ 153 . 

§ 157 . 




. 679, 718 

477, 479, 670 


c. 158, § 17 








586, 589 


§§ 162-166 . 




. 476 


§31 . 








. 586 


§ 163 . 




. 165, 477 



XVI 



STATUTES CITED. 



General Law3 — Con. 



c. 175, § 166 



c. 176 



\ 167 . 
j 173 . 
! 174 . 
!§ 182-184 
! 193 . 
! 194 . 



13, 14 
16, 17, 19 




35, 50 



PAGE 

176, 254, 255, 256, 

556, 649 

556, 649 

649, 650 

J14, 215, 490, 650 

431, 488, 489 

. 489 

. 489 

. 243 

. 587 

240, 241, 242 

. 242. 588 

. 588 

. 643 

. 361 

. 284, 285 

. 539 

586, 589, 591 

. 588, 589 

. 728 

. 729 

. 150, 588 

. 730 

. 704 

. 586 

. 587 

. 587 

. 531, 532 

. 707 



c. 219 
c. 220 



6, 26, 




PAGE 

. 586 

. 587 
. 85 
. 738 
581, 585, 588, 591 
. 248 



45, 46 



. 587 
. 591 
. 589 
. 587 
. 586 
. 586, 587 
. 181, 720 
. 560 
. 750 
. 531, 532 
. 702 
399, 400, 532 
. 400 
326, 330, 399 
. 399 
. 327 
52, 54, 56, 57, 157 
. 588 
. 522 
. 121 
. 192 
286, 505 



CASES CITED. 



XVll 



Table of Cases cited in this Volume. 



PAGE 

Adair v. United States, 208 U. S. 161 333 
Adams v. Russell, 229 U. S. 353 192, 286 

V. Tanner, 244 U. S. 590 . . 166 

Adkins?). Children's Hospital, 261 U. S. 

525 

Aetna Life Ins. Co. v. Hardison, 199 

Mass. 181 

Agawam v. Hampden, 130 Mass. 528 
Akers v. United New Jersey R. R., 43 

N. J. L. 110 .... 

Alderman v. Phelps, 15 Mass. 225 



333 



485 
412 



359 
722 

Alexander v. Big Rapids, 76 Mich. 282 359 

V. Gordon, 101 Fed. 91 . . 644 

Allen V. Boston, 159 Mass. 324 . . 677 

V. Mass. Bonding & Insurance 

Co., 248 Mass. 378 .. . 510 

Allgeyer v. Louisiana, 165 U. S. 578 . 670 

Alpha Portland Cement Co. v. Com- 
monwealth, 244 Mass. 530 . . 550 

American Pig Iron Storage Co. v. State 
Board of Assessors, 56 N. J. L. 389 2 

American Unitarian Assn. v. Minot, 
185 Mass. 589 ... . 510 

Amherst College v. Assessors of Am- 
herst, 173 Mass. 232 . . . 574 

V. Assessors of Amherst, 193 Mass. 

168 574 

Appleyard v. Massachusetts, 203 U. S. 
222 105, 611 

Arkadelphia Co. v. St. Louis S. W. Ry. 
Co., 249 U. S. 134 ... 538 

Armstrong v. Village of Fort Eduard, 
159 N. Y. 315 . . . . 674 

Arnold v. North American Chemical 
Co., 232 Mass. 196 .. . 565 

Astell V. Kansas, 209 U. S. 251 . . 408 

Ashley v. Three Justices of Superior 
Court, 228 Mass. 63 . . 289, 737 

Atlee V. Packet Co., 21 WaU. 839 . 393, 

396. 397 

Attorney-General v. Abbott, 154 Mass. 
323 265 



PAGE 

Attorney-General v. City of Cam- 
bridge, 119 Mass. 518 . . . 661 

V. Drohan, 169 Mass. 534 . 351, 707 

V. EUis, 198 Mass. 91 . 265, 281 

V. Herrick, 190 Mass. 307 . . 263 

V. Loomis, 225 Mass. 372 . . 704 

V. Mass. Pipe Line Gas Co., 179 

Mass. 15 . . . . .4 
V. Old Colony R. R. Co., 160 

Mass. 62 13 

V. PeUetier, 240 Mass. 264 45, 352, 361 

V. Revere Copper Co., 152 Mass. 

444 

V. Tillinghast, 203 Mass. 539 

V. Tufts, 239 Mass. 458, 537 45^ 

V. Vineyard Grove Co., 181 Mass. 

507 

V. WaUace, 7 B. Mon. (Ky.) 611 

Averell i'. Newburyport, 241 Mass. 333 700 
Ayers v. Hatch, 175 Mass. 489 . . 91 

Babcock v. Mores Home for Infirm 

Hebrews, 225 Mass. 418 
Bacon v. Sandberg, 179 Mass. 396 
Baker v. Commercial Union Assurance 

Co., 162 Mass. 358 .. . 

Baltimore v. Baltimore Trust Co., 166 

U. S. 673 336 

V. Hook, 62 Md. 371 . . 6.39 

Bancroft v. Cambridge, 126 Mass. 438 64 

V. Lynnfield, 18 Pick. 566 . . 70 

Bannister v. Soldiers' Bonus Board, 

43 R. I. 346 .... 256 

Barron v. Boston, 187 Mass. 168 462, 701 
Barrus v. Phaneuf, 166 Mass. 123 . 328 
Bartlett, petr., 163 Mass. 509 . . 575 

Bassing v. Cady, 208 U. S. 386 . 105, 611 
Bates V. Selectmen of Westfield, 222 

Mass. 296 91 

Baxter v. Buchholz-Hill Co., 227 U. S. 

637 727 

Beals V. Brookline, 245 Mass. 20 . 640 



263 
707 
515 

265 
151 



180 
512 



492 



XVlll 



CASES CITED. 



PAGE 

Bellows Falls Power Co. v. Common- 
wealth, 222 Mass. 51 . . . 

Belmont v. Smith, 8 N. Y. Super. Ct. 
(1 Duer), 675, 678 .. . 

Bemis v. Wilder, 100 Mass. 446 

Bent V. Emery, 173 Mass. 495 . 

Berea College v. Kentucky, 211 U. S. 45 

Betts V. Clifford, Warwick Lent As- 
sizes, 1858 (Eng.) 

Bickford v. Brooksville (1867), 55 Me. 
89 196, 

Biddinger v. Commissioner of Police, 
245 U. S. 128 . 

Bingham v. Commissioner of Corpora- 
tions and Taxation, 249 Mass. 79 . 

Binns v. United States, 194 U. S. 486 365 

Bitterman v. Louisville & Nashville 
R. R. Co., 207 U. S. 205 

Blake v. Sanderson, 1 Gray, 332 

Blumenstock Brothers Advertising 
Agency v. Curtis Publishing Co., 252 
U. S. 436 

Bogigian v. Commissioner of Corpora- 
tions and Taxation, 248 Mass. 545 725 

Bogni V. Perotti, 224 Mass. 152 

Boston V. Boston Elevated Ry. Co., 
213 Mass. 407 

V. Chelsea, 212 Mass. 127 

V. Jackson, 260 U. S. 309 

V. Schaffer, 9 Pick. 415 

V. Sears, 22 Pick. 122 

V. Talbot, 206 Mass. 82 

V. Treasurer and Receiver Gen- 
eral, 237 Mass. 403 . 12, 331, 366, 

571, 642 

Boston & Albany R. R. Co. v. Public 
Service Commissioners, 232 Mass. 
358 

Boston Beer Co. v. Massachusetts, 97 
U. S. 25 . . 

Boston Chamber of Commerce v. Bos- 
ton, 195 Mass. 338 

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

Boston Glass Manufactory Co. t. 
Langdon, 24 Pick. 49 . 

Boston, petitioner, 221 Mass. 468 

Boston Railroad Holding Co. v. Com- 
monwealth, 215 Mass. 493 

Boston Water Power Co. v. Boston & 
Worcester R. R. Corp., 23 Pick. 360 13 

Bowen v. Dean, 110 Mass. 438 . . 99 



302 

715 

466 

21 

353 

327 



611 



497 



618 
466 



159 



333 

252 
123 
366 
136 
417 
67 



745 



14 



640 



465 



5 
412 



41 



166 



701 

21 

342 

727 

41 



PAGE 

Bradley v. Frazcr, 54 la. 289 . . 343 

Branahan v. Hotel Co., 39 Ohio St. 333 677 
Brayton v. Fall River, 113 Mass. 218 677 
Brazce v. Michigan, 241 U. S. 340 
Briggs V. Cape Cod Ship Canal Co., 

137 Mass. 71 ... . 

V. Rochester, 16 Gray, 337 

Brimmer v. Boston, 102 Mass. 19 
Brockton v. Uxbridge, 138 Mass. 292 
Bronson v. Shulten, 104 U. S. 410 
Brooks V. West Springfield, 193 Mass. 

190 

Brown v. Commonwealth, 100 Ky. 127 652 

V. Lowell, 8 Met. 172 . . 745 

V. Lynch, 2 Bradf. (N. Y.) 214 . 467 

V. Russell, 166 Mass. 14 . 45, 707 

Browne v. Turner, 174 Mass. 150 . 584 
Brushabcr v. Union Pacific R. R. Co., 

240 U. S. 1 

Buchanan v. Warley, 245 U. S. 60 

Buchman v. State, 59 Ind. 1 

Buckeye Pipe Line Co. v. Fee, 62 Ohio 

St. 543 

Burdett v. Walsh, 235 Mass. 153 
Burdick v. People, 149 111. 600 . 
Burgess v. Mayor and Aldermen of 

Brockton, 235 Mass. 95 
Burke v. Board of Health, 219 Mass. 

219 

Burnett v. Freeman, 125 Mo. App. 683 328 
Burr V. The First Parish in Sandwich, 

9 Mass. 277 .... 

Burrage v. County of Bristol, 210 

Mas.s. 299 

Butchers Slaughtering, etc., Assn. v. 

Boston, 21'4 Mass. 254 . 
Butler V. Attorney-General, 195 Mass. 

79 

V. Martin, 220 Mass. 224 . 

C. A. Weed & Co. v. Lockwood, 266 

Fed. 785 

V. Lockwood, 264 Fed. Rep. 453 

Callanan v. Hurley, 93 U. S. 387 
Cambridge v. County Commissioners, 

114 Mass. 337 . . . 180, 574 

Cambridge Savings Bank v. Clerk of 

Courts, 243 Mass. 424 . 
Canton Institution for Savings v. Mur- 
phy, 156 Mass. 305 .. . 
Capen v. Foster, 12 Pick. 485, 488 
Carey-Lombard Lumber Co. v. Bier- 

bauer, 76 Minn. 434 



95 
334 
327 

727 
568 
619 

136 

239 



152 
601 

78 

264 
80 

141 
249 
645 



706 



568 
635 



715 



CASES CITED. 



XIX 



PAGE 

Carnig v. Carr, 167 Mass. 544 . . 708 

Carr v. Riley, 198 Mass. 70 .511 

Gary Library v. Bliss, 151 Mass. 364 13, 65 
Case of Seven Bishops, 3 Mod. 212 . 633 
Cathaway v. Bowles, 136 Mass. 54 . 102 
Central Bridge Corp. v. Lowell, 4 Gray, 

474 13 

Central Shade Roller Go. v. Gushman, 

143 Mass. 3.53 . . . .142 

Chaffers v. Goldsniid, 1894, 1 Q.B. 186 634 
Chapel of the Good Shepherd v. Bos- 
ton, 120 Mass. 212 . .179 
Chapin v. Lowell, 194 Ma.ss. 486 373, 600 
Charlesbank Homes v. Boston, 218 

Mass. 14 179 

Charleston v. Allen, 6 Vt. 633 . .152 

Chase v. Chase, 191 Mass. 166 . . 729 

Chase v. Sutton Mfg. Co., 4 Gush. 152 64 
Cheshire v. County Gommis.sioi^ers, 

118Ma.ss. 386 .... 545 
Chicago Life Ins. Go. v. Needles, 113 

U. S. 574 IS 

Chicago Mutual Life Ind. Assn. v. 

Hunt, 127 111. 257 ... 242 

Cincinnati Volksblatt Go. v. Hoffnieis- 

ter, 62 Ohio St. 189 . . . 80 

GivU Rights Cases, 109 U. S. 3 . . 353 

Claflin V. United States Credit System 

Co., 165 Mass. 501 .. . 5.36 

Clark V. Gill, 1 Kay & J. 19 (Eng.) . 327 
Cleaveland v. Norton, 6 Gush. 380 . 267 
Clemens Electrical Mfg. Go. v. Walton, 

168 Mass. 304 ... . 288 

Cleveland, etc., Ry. Go. v. People, 212 

111. 638 706 

Godman v. Crocker, 203 Mass. 146 . 416 
Goe V. Errol, 116 U. S. 517 . . 5.38 

Coffey V. Gamble, 117 Iowa, 545 . 727 

Cole V. Tucker, 164 Ma.ss. 486 . 352, 622 
Commercial Fire Ins. Go. v. Board of 

Revenue, Montgomery CJo., 99 Ala. 1 2 
Commissioner of the Public Works v. 
Justice, Dorchester District, 228 
Mass. 12 .... . 725 

Commissioners of W^ashington Park, 

56 N. Y. 144 ... . 640 

Commonwealth v. Adams, 114 Mass. 

323 106 

V. AJger, 7 Gush. 53 . . 14, 51, 

110, 165, 266, 637 

V. Anselvich, 186 Mass. 376 . 61 

V. Atlas, 244 Mass. 78 . 452, 514 



640 



333 



31 
298 



396 
234 

346 
266 
652 
165 
237 
252 
608 
676 
361 

300 

147 



PAGE 

Commonwealth v. Boston Advertising 
Co., 188 Mass. 348 .. . 

II. Boston & Maine R. R., 222 

Mass. 206 

V. Boston & Northern St. Ry. Co., 

212 Mass. 82 ... . 

V. Brooks, 109 Mass. 355 . 

V. Brown, 167 Mass. 144 . 192, 286 

V. Carpenter, 100 Mass. 204 .61 

V. Garter, 132 Mass. 12 

V. Clary, 8 Mass. 72 . 

V. Connecticut Valley St. Ry. Co., 

196 Mass. 309 ... . 

V. Coupe, 128 Mass. 63 

- V. Daley, 4 Gray, 209 

V. Danziger, 176 Mass. 290 

V. Davis, 140 Mass. 485 

V. Dee, 222 Mass. 184 

V. FoUett, 164 Ma.ss. 477 . 

V. Gage, 114 Mass. 328 

V. Gorham, 99 Mass. 420 . 

?;. Hamilton Mfg. Co., 12 Allen, 

298 

V. Hamilton Mfg. Co., 120 Mass. 

383 

V. Hana, 195 Mass. 262 . 166, 171, 

312, 334, 596 

V. Harris, 231 Mass. 584 . . 83 

V. Hawkins, 157 Mass. 551 . 106 

V. Interstate, etc., St. Ry. Co., 

187 Mass. 436 . . 31, 334, 352 

V. Jacobson, 183 Ma.ss. 242 . 372 

V. Kcary, 198 Pa. 500 . . 019 

V. Kiley, 150 Mass. 325 . . 361 

V. Kozlowsky, 238 Ma.ss. 379 . 49 

V. Lahy, 8 Gray, 4.59 . . 61 

V. Libbey, 216 Mass. 356 . 352, 737 

V. Lockwood, 109 Mass. 323 . 361 

V. McCarthy, 225 Mass. 192 452, 514 

V. McDcrmott, 224 Penn. 363 . 652 

V. McGann, 213 Mass. 213 . 453 

V. McMonaglc, 1 Mass. 517 . 462 

V. Maletsky, 203 Mass. 241 452, 514 

V. Maloney, 145 Mass. 205 . 515 

V. Marshall, 11 Pick. 350 . . 321 

V. Mathews, 122 Mass. 60 . 676 

V. Moore, 214 Mass. 19 . . 395 

V. Morrison, 197 Mass. 199 . 676 

V. Mott, 21 Pick. 492 . . 652 

V. Mulhall, 162 Mass. 496 . . 298 

— — V. New England College of Chiro- 
practic, 221 Mass. 190 . . 57, 158 



XX 



CASES CITED. 



PAGE 

Commonwealth v. New England Slate 

& Tile Co., 13 Allen, 391 . . 303 
V. N. Y. C. & H. R. R. Co., 206 

Mass. 417 . . . . 374, 600 

V. Newhall, 205 Mass. 344 . 298 

V. Nickerson, 236 Mass. 281 373, 600 

V. North Shore Ice Delivery Co., 

220 Mass. 55 ... . 143 

V. Ober, 12 Cush. 493 . . 312 

V. Packard, 185 Mass. 64 . . 294 

V. Page, 155 Mass. 227 . . 676 

V. Parker, 2 Pick. 550 . 119, 322 

V. People's Five Cents Savings 

Bank, 5 Allen, 428 .. . 133 

V. Peters, 2 Mass. 125 . . 14 

V. Plaisted, 148 Ma.s.s. 375 . 622 

V. Porn, 196 Mass. 326 . . 166 

V. Porter, 1 Gray, 476 . Ill, 635 

V. Reid, 175 Mass. 202 . 312, 652 

V. Riley, 210 Mass. 387 . 147, 682 

V. Rogers, 181 Mass. 184 . 352, 622 

V. Roswell, 173 Mass. 119 . . 165 

V. Roxbiiry, 9 Gray, 451 . . 263 

V. Slocum, 230 Mass. 180 . 136, 453 

V. Smith, 141 Mass. 135 . 183, 396 

V. Stevens, 155 Mass. 291 . . 35 

V. Stodder, 2 Cush. 562 . . 676 

V. Strauss, 191 Mass. 545 143, 165, 352 

V. Tiffany, 119 Mass. 300 . . 263 

V. Titcomb, 229 Mass. 14 . 137, 141, 

166, 334, 352 

V. Tufts, 239 Mass. 458, 537 . 517 

V. Wetherbee, 105 Mass. 149 . 568 

V. Wheeler, 205 Mass. 384 . 395 

V. Williams, 6 Gray, 1 . .61 

V. Wilson, 14 Phila. 384 . . 619 

Conant v. Burnham, 133 Mass. 503 . 249 
Conners v. Lowell, 246 Mass. 279 . 514 
Connolly v. Union Sewer Pipe Co., 184 

U. S. 540 . . . 137, 140, 334 

Cooley V. Cook, 125 Mass. 406 . . 722 

V. O'Connor, 12 Wall. 391 . 416 

Coolidge V. Learned, 8 Pick. 504 . 265 

Copeland v. Mayor and Aldermen of 

Springfield, 166 Mass. 498 . . 745 

Coppage V. Kansas, 236 U. S. 1 . 333 

Corey v. Wrentham, 164 Mass. 18 . 640 
Cornish's Trial, 11 How. St. Tr. 460 

(1685) ..... 82 

Cotting V. Commonwealth, 205 Mass. 

523 . . . . 465, 674, 751 



Cotting V. Kansas City Stock Yards 

Co., 183 U. S. 79 . . . . 335 

County Com. v. Lee, 3 Colo. App. 177 328 
Cowell V. Thayer, 5 Met. 253 . . 282 

Crane v. New York, 239 U. S. 195 . 334 
Crocker v. Justices of the Superior 

Court, 208 Mass. 162 . . . 121 

Cross V. Bouck, 175 Cal. 253 . . 465 

Crusoe v. Bugby, 3 Wills. 234 . . 465 

Curry v. Spencer, 61 N. H. 624 . 136 

Curtis V. New York Life Ins. Co., 217 

Mass. 47 ... . 486, 716 

Dallemagne v. Moisan, 197 U. S. 169 508 
Daniel v. Hill, 52 Ala. 430 . . 468 

Davis V. Caldwell, 12 Cush. 512, 513 . 249 

V. Colburn, 128 Mass. 377 . 102 

V. Rockport, 213 Mass. 279 . 65 

Dearborn v. Ames, 8 Gray, 1 . 49, 189 
Dedham,w. Natick, 16 Mass. 135 
Deerficld v. Connecticut River R. R., 
144 Mass. 325 ... . 

Delaney v. Grand Lodge A. O. U. W., 
244 Mass. 556 ... . 

Delaware, L. & W. R. Co. v. Petrowsky, 
250 Fed. 554 ... . 

Den V. Post, 25 N. J. L. 285 
Denver & R. G. R. R. Co. v. Denver, 

250 U. S. 241 
Derinza's Case, 229 Mass. 435 . 
Devoe v. Commonwealth, 3 Met. 316 . 
Dewey v. Richardson, 206 Mass. 430 

136, 165 
Dickey v. Trustees of Putnam Free 

School, 197 Mass. 468 . 
Dills V. State, 59 Ind. 15 . 
Dinan v. Swig, 223 Mass. 516 . 
Dingley v. Boston, 100 Mass. 544 
Dixon V. People, 168 111. 179 

V. The State, 12 Ga. App. 17 

Dobbins v. Los Angeles, 195 U. S. 223 
Donovan v. Board of Labor and In- 
dustries, 225 Mass. 410 
V. Haverhill, 247 Mass. 69 



467 

265 

243 

469 
465 

336 
524 
359 



502 
327 
123 

64 
328 
328 

14 

704 
.304 



V. Pennsylvania Co., 199 U. S. 279 677 



Dorscy v. Brigham, 177 111. 250 
Douglas V. Noble, 261 U. S. 165 
Downey v. Bay State St. Ry., 225 

Mass. 281 

Drew V. Thaw, 235 U. S. 432 . 
Driiry v. Inhabitants of Natick, 10 

.-Ulen, 169 

Duddy's Case, 219 Mass. 548 . 



701 
443 



715 
611 



575 
105 



CASES CITED. 



XXI 



658 



13 



547 
639 



PAGE 

Duffy & Cooke, 239 Pa. St. 427 . 737 

Duffy V. Treasurer and Receiver Gen- 
eral, 234 Mass. 42 . . .110 
Duggan V. Bay State Street Ry. Co., 

230 Mass. 370 . . 61, 147, 252 

Dunn V. Lowe, 203 Mass. 516 . 182, 397 
Dunwoody v. United States, 22 Ct. 

Claims, 269 

Durfee v. Old Colony, etc., R. R. Co., 
5 Allen, 230 .... 

Durgin v. Minot, 203 Mass. 26 . 
Eastern R. R. Co. v. Boston & Maine 

R. R., Ill Mass. 125 . 
Eaton, Crane & Pike Co. v. Common- 
wealth, 237 Mass. 523 . 
Edwards v. Bruorton, 184 Mass. 529 . 
Electric Welding Co. v. Prince, 195 

Mass. 242 . . . . 374, 600 

Elliott V. Stone, 1 Gray, 571 . . 539 

Ellis V. Anderson, 49 Pa. Sup. Ct. 245 491 
Ellsworth V. Dorwart, 95 la. 108 . 80 

Emerson v. Trustees of Milton Acade- 
my, 185 Mass. 414 . . 179, 574 
Emery v. Emer>% 218 Mass. 227 . 701 
Emmons v. Shaw, 171 Mass. 410 . 498 
Engel V. O'MaUey, 219 U. S. 128 . 105 
Equitable Life Assurance Society v. 

Clements, 140 U. S. 226 . . 607 

Ex parte Bartlett, 4 Bradf. (N. Y.) 221 468 

Dement, 53 Ala. 389 . . 328 

Hughes, 50 Tex. Cr. R. 614 . 619 

Reggel, 114 U. S. 642 . . 105 

Siebold, 100 U. S. 371 . . 232 

Spencer, 228 U. S. 652 . 192, 286 

Farr Alpaca Co. v. Commonwealth, 

212 Mass. 156 . 
Fay V. Salem & Danvers Aqueduct Co., 
Ill Mass. 27 ... . 

Field V. Mills, 33 N. J. L. 254 . 
Finley v. Mexican Inv. Corp., 1897, 

1 Q.B. 517 

Firemens Ins. Co. v. Commonwealth, 

137 Mass. 80 ... . 

First Parish in Sudbury v. Jones, 8 

Cush. 184 

First Universalist Society in Salem v. 

Bradford, 185 Mass. 310 
Fitzgerald v. Arel, 63 la. 104 . 

V. Lewis, 164 Mass. 495 

Flinn v. Prairie County, 60 Ark. 204 . 
Flynn v. Allen (1865), 26 Phila. Leg. 
Int. 37 196 



303 

266 
466 

534 

303 

306 

574 
343 
734 
328 



PAGE 

Foley V. HiU, 2 H. L. Cas. 28 . . 101 

Forster v. Scott, 136 N. Y. 577 . . 639 

Foss V. Wexler, 242 Mass. 277 . 453, 713 
Foster v. Park Commissioners, 133 

Mass. 321 406 

V. White, 86 Ala. 467 . . 79 

Fort Leavenworth R. R. Co. v. Lowe, 

114 U. S. 525 . . . . 233 

Freetown v. Taunton, 16 Mass. 52 . 467 
French v. Conn. River Lumber Co., 

145 Mass. 261 ... . 677 

French v. Sangerville, 55 Me. 69 195, 255 
Friend v. Gilbert, 108 Mass. 408 . 70 

Fry V. State, 63 Ind. 552 . . .619 

Fuller V. Mayor of Medford, 224 Mass. 

176 Ill 

Gage V. Steinkrauss, 131 Mass. 222 . 264 
Gagnon v. United States, 193 U. S. 451 383 
Gardner Water Co. v. Gardner, 185 

Mass. 190 266 

Garrison v. New York, 21 Wall. 196 . 640 
General Baking Co. v. Street Commis- 
sioners, 242 Mass. 194 . . .451 
Gero V. Metropolitan Park Commis- 
sion, 232 Mass. 389 .. . 260 
Gibbs V. Estey, 15 Gray, 587 . . 306 
Gilbert John Bannister v. Soldiers' 

Bonus Board, 43 R. I. 346 . . 197 

Glass V. State Board of Public Roads, 

44 R. I. 54 662 

Gleason v. McKay, 134 Mass. 419 . 92, 

134, 550 
Goldstein v. Conner, 212 Mass. 57 452, 514 
Gordon v. Chief of Police of Cam- 
bridge, 244 Mass. 491 . . . 699 
GouHs V. Judge of District Court, 246 

Mass. 1 508 

Graham v. Roberts, 200 Mass. 152 . 45, 

123, 622 

V. West Virginia, 224 U. S. 616 . 652 

Great Barrington v. Gibbons, 199 

Mass. 527 . . . . 374, 600 

Greenfield Savings Bank v. Common- 
wealth, 211 Mass. 207 . . .4 
Greenway v. Adams, 12 Ves. Jr. 395 . 406 
Gregg V. Jamison (1867), 55 Pa. 468 . 196 
Greves v. Shaw, 173 Mass. 205 . . 5.50 
Griggs V. Moors, 168 Mass. 354 . 41 
Grunmett v. State, 22 Tex. App. 36 . 84 
Hale V. Everett, 53 N. H. 9 . . 152 
Hall V. Geiger Jones Co., 242 U. S. 539 

165, 334 



XXll 



CASES CITED. 



PAGE 

Hamilton v. Lane, 138 Mass. 358 . 249 
Hammond v. Hyde Park, 195 Mass. 29 

373, 600 
Hargrave v. King, 40 N. C. 430 . 465 

Hartford Fire Ins. Co. v. Becton & 

Terrell, 103 Tex. 236; 125 S. W. 883 325 
Harvard College v. Cambridge, 175 

Mass. 145 574 

V. Gore, 5 Pick. 370 . . .701 

Hawke V. Smith, No. 1, 253 U. S. 221 446 

No. 2, 253 U. S. 231 . . 446 

Hayden v. Stone, 112 Mass. 346 . 266 

Heim V. McCall, 239 U. S. 175 . . 3.34 

Hendrick v. Maryland, 235 U. S. 610 136 
Henry v. Babcock & Wilcox Co., 196 

N. Y. 302 SO 

Higginson v. Treasurer & School House 

Commissioners of Boston, 212 Mass. 

583 64 

Hill V. Treasurer and Receiver General, 

229 Mass. 474 ... . 498 

Hittinger v. Eames, 121 Mass. 539 . 264 

V. Westford, 135 Mass. 258 . 462 

Hodgdon v. Haverhill, 193 Mass. 406 6 

Hogan 1'. O'Neil, 255 U. S. 52 . .611 

Holmes v. Hunt, 122 Mass. 505, 517 . 61 
Holy Trinity Church v. United States, 

143 U. S. 457 . . . . 365 

Holyoke v. Haskins, 5 Pick. 20 . . 468 

Houle V. Abramson, 210 Mass. 83 . 421 
Howard v. Fessenden, 14 Allen, 124 . 306 
Howland v. Parker, 200 Mass. 204 . 99 
Hub Construction Co. x. New England 

Breeders' Club, 74 N. H. 282 . 80 

Hull V. Boston & Maine R. R., 210 

Mass. 159 355 

Hunt V. Bay State Iron Co., 97 Mass. 

279 306 

Huyser v. Commonwealth, 25 Ky. Law 

Rep. 608 652 

Hyatt V. Blackwell Lumber Co., 31 

Ida. 452 670 

Hyatt V. Corkran, 188 U. S. 691 . 104 

Hylton V. United States, 3 Dall. 171 . 95 
In re Beaumont (1893), 3 Ch. 190, 490 467 

Brannock, 131 Fed. 819 . . 343 

Grimlcy, 137 U. S. 147 . . 557 

Law Guarantee See. v. Munich 

Re-Ins. Co. (1912), 1 Ch. 138 . 535 

Neagle, 135 U. S. 1 . . . 233 

Turner, 119 Fed. Rep. 231 . 233 



PAGE 

International Harvester Co. v. Mis- 

.souri, 234 U. S. 199 . 137, 141, 334 
International Textbook Co. v. Gilles- 
pie, 229 Mo. 397 . . . . 159 

V. Lynch, 81 Vt. 101 . . 159 

V. Pigg, 217 U. S. 91 55, 158, 159 

V. Peterson, 133 Wis. 302 . . 159 

V. Connelly, 124 N. Y. Supp. 603 159 

V. Connolly, 206 N. Y. 188 . 249 

Jackson v. Harrison, 17 Johns (N. Y.) 

66 465 

V. PhUlips, 14 Allen, 539 . . 574 

V. Silvernail, 15 Johns (N. Y.) 278 465 

Jacobson v. Massachu.setts, 197 U. S. 

11 372 

James Sulhvan v. Wilheim Kanuth, 220 

N. Y. 216 319 

Jaquith v. Wellesley, 171 Mass. 138 . 352 
Jenkins v. Andover, 103 Mass. 94 . 500 
Jennings v. Davis, 31 Conn. 134 . 41 

Johnson v. Copeland, 35 Ala. 521 . 467 

V. Langdon, 135 Cal. 624 . . 80 

Jones V. Robbins, 8 Gray, 329 . . 83 

Jordan Marsh Co. v. Cohen, 242 Mass. 

245 249 

Judson Freight Forwarding Co. v. 

Commonwealth, 242 Mass. 47 . 565 

Kane v. New Jersey, 242 U. S. 160 88, 136 

V. Titus, 81 N. J. L. 594 . . 136 

Karrick v. Wetmore, 210 Mass. 578 . 727 
Keith V. Maguire, 170 Mass. 210 . 714 

Kelly D. Biddle, 180 Mass. 147 . .118 

Kentucky v. Dennison, 24 How. 66 .611 
Kibbe v. Antram, 4 Conn. 134, 139 . 152 
Kilgour V. Gratto, 224 Mass. 78 452, 514 
Kimball v. Dern, 39 Utah, 181 . . 80 

King V. Norcross, 196 Mass. 373 . 677 

V. Viscoloid Co., 219 Mass. 420 . 309 

Kingman v. Brockton, 153 Mass. 255 

70, 642 

. 412 

. 412 

. 45 

Rep. 

. 652 
468 



, petitioner, 153 Mass. 566 

, 170 Mass. Ill 

Kinncen v. Wells, 144 Mass. 497 
Kinney v. State, 45 Tex. Crim. 

500 

Kirkland v. Whately, 4 Allen, 462 
Kirkman v. McCMaughry, 152 Fed. 255 505 
Kite V. Commonwealth, 11 Met. 581 . 505 
Kittingcr b. Rossman, 12 Del. Ch. 276 639 
Knight V. Boston, 159 Ma,ss. 551 . 41 

Knox«. Coburn, 117 Me. 409 . . 80 

Kohl V. United States, 91 U. S. 367 , 12 



CASES CITED. 



XXlll 



Krakauer v. Chapman, 16 App. Div. 

115 318 

Lafayette Ins. Co. v. French, 18 How. 

404 89 

Lake Shore & Michigan Southern Ry. 

V. Chicago & Western Indiana R. R., 

97 111. 506 13 

Lamar v. Micou, 112 U. S. 452 . . 467 

LasceUes v. Georgia, 148 U. S. 537 . 010 
Lawrence v. Board of Registration, 239 

Mass. 424 737 

V. Fletcher, 8 Met. 153 . . 152 

Lawton v. Steele, 152 U. S. 133 165, 352 
Leahy v. Street Commissioners, 209 

Mass. 316 406 

Lee V. Boston, 2 Gray, 484 . . 701 

V. Lynn, 223 Mass. 109 . 334, 570 

V. Marsh, 2.30 Penn. 351 . . 372 

Leggett V. Levy, 233 Mo. 590 . .318 

Leser v. Garnett, 258 U. S. 130 . . 446 

Lewis V. Brainerd, 53 Vt. 519 . . 80 

Lexington v. Suburban Land Co., 235 

Mass. 108 . . . 640, 677 

Lithwines Trial, 4 How. St. Tr. 1269, 

1273 82 

Little V. Newburyport, 210 Mass. 414 575 
Loan Assoc, v. Topeka, 20 Wall. 655 . 76, 

643 
Lochner v. New York, 198 U. S. 45 166, 333 
Logan V. Mayor and Aldermen of Law- 
rence, 201 Mass. 506 . . 697 
Londonderry v. Chester, 2 N. H. 268 . 152 
Long Island Water Supply Co. v. 

Brooklyn, 166 U. S. 685 
Long V. State, 36 Tex. 6 . 
Lord V. Goldberg, 81 Cal. 596 . 
Loring v. Young, 239 Mass. 349 
Lowe V. Jones, 192 Mass. 94 
Lowell V. Boston, 111 Mass. 454 



. 12 

. 652 

. 708 

. 382 

. 101 

67, 70, 

76, 642 

Lowell, etc.. Appellants, 22 Pick. 215 . 575 

Lunt V. Davison, 104 Mass. 498 . 390 

Lynn Workingmen's Aid Association 

V. Lynn, 136 Mass. 283 . . 578 

Lynnfield v. Peabody, 219 Mass. 322 266, 

608 
Madigan v. McCarthy, 108 Mass. 376 306 
Mahoney v. Boston, 171 Mass. 427 . 40 

V. Lincolnville, 56 Me. 450 195, 255 

Main v. County of Plymouth, 223 

Mass. 66 ... . 524, 641 

Main v. Sherman Co., 74 Neb. 155 . 328 



PAGE 

Mander v. Coleman, 95 N. Y. Sup. 696 658 
Marble v. Treasurer and Receiver Gen- 
eral, 245 Mass. 504 .. . 
Marcy v. Marcy, 9 Allen, 8 
Marks v. Wentworth, 199 Mass. 44 . 
Martin v. Gardner, 240 Mass. 350 
Martin L. Hall Co. v. Commonwealth, 

215 Mass. 326 . 
Martin v. Waddell, 16 Pet. 367 . 
Mason v. Pearson, 118 Mass. 61 
Massachusetts General Hospital v. 

Belmont, 233 Mass. 190 
Massachusetts Institute of Technology, 

188 MaiBs. 565 ... . 

Mass. Society, etc. v. Boston, 142 Ma.ss. 

24 

Mathews v. Kimball, 70 Ark. 451 
Mayor of Medford v. Judge of District 

Court, 249 Mass. 465 . 
Mayor, etc., of New York v. Sands, 

105 N. Y. 210 . 
McAuUffe V. New Bedford, 155 Mass. 

216 

McCaffrey v. Smith, 41 Hun. (N. Y.) 

117 

McCarter, Atty. Gen., v. Dungan, 74 

N. J. Eq. 251 . . . .6 

McCray v. United States, 195 U. S. 27 134 
McCullough V. McCullough, 44 N. J. 

Eq. 313 

McDonald v. Fire Engineers of (Uin 

ton, 242 Mass. 587 .. . 

McGee v. Salem, 149 Mass. 238, 240 . 
McKeon v. New England R. R. Co. 

199 Mass. 292 ... . 

McLean v. Arkansas, 211 U. S. 539 . 



388 
741 
515 
343 

734 
267 

727 

334 

510 

574 
359 

699 

674 

736 

677 



101 



38 
306 



McNichols V. Pease, 207 U. S. 100 



Mead v. Acton, 139 Mass. 341 



186 
165, 
335 
105, 

211, 612 
70, 

110, 642 
467 
282 



Mears v. Sinclair, 1 W. Va. 185 
Mendell v. Delano, 7 Met. 176 . 
MercantDe Bank v. New York, 121 

U. S. 138 549 

V. Richmond, 256 U. S. 635 . 549 

Merritt v. United States, 264 Fed. 870 249 
Metropolitan Life Ins. Co. v. Insurance 

Commissioner, 220 Mass. 52 . . 486 
V. Insurance Commis.sioner, 208 

Mass. 386 486 



XXIV 



CASES CITED. 



PAGE 

Meyer v. Estes, 164 Mass. 457 . . 142 

Michael v. Michael, 34 Tex. Civil App. 



6.30 



34.3 
306 



332 

408 
57.5 

498 



388 



652 



Milligan v. Drury, 130 Mass. 428 

Minneapolis v. Minneapolis St. Ry 
Co., 215 U. S. 417 

Minnesota v. Barber, 136 U. S. 313 

Minns V. Billings, 183 Mass. 126, 131 

Minot V. Paine, 230 Mass. 514 . 

V. Treasurer and Receiver Gen- 
eral, 207 Mass. .588 . . 99, 498 

V. Winthrop, 162 Mass. 113 . 1.34 

Mitchell V. Tibbetts, 17 Pick. 298 . 233 

Moale V. Baltimore, 5 Md. 314 . . 639 

Molly Varnum Chap. D. A. R. v. Low- 
ell, 204 Mass. 487 ... 574 

Moore v. Sanford, 151 Mass. 285 67, 616 

V. Stoddard, 206 Mass. 395 252, 583 

Moors V. Treasurer and Receiver Gen- 
eral, 237 Mass. 254 .. . 

Morgan v. Commonwealth, 170 Ky 
400 

Moulton v. Commissioner of Corpora- 
tions and Taxation, 243 Mass. 129 . 299 

Mount Hermon Boys' School v. Gill, 
145 Mass. 139 . . . 179, 574 

Munkley v. Hoyt, 179 Mass. 108 . 361 

Munroe o. Woburn, 220 Mass. 116 . 641 

Murphy o. Mayor of Boston, 220 Mass. 
73 

Murray v. Cherrington, 99 Mass. 229 

Mutual Benefit Life Ins. Co. v. Com- 
monwealth, 227 Mass. 63 

Nelson v. First National Bank, 69 Fed 
798 

V. Milford, 7 Pick. 18 

New Bedford v. County Commissioners, 
9 Gray, 346 .... 640 

New England Hospital v. Boston, 113 
Mass. 518 ..... 

New England, etc., S. S. Co. v. Com- 
monwealth, 195 Mass. 385 

New England Theosophical Corpora- 
tion V. Boston, 172 Mass. 60 . . 575 

New Orleans Gas Co. v. Drainage 
Commission, 197 U. S. 453 . 14, 3.36 

V. Louisiana Light Co., 115 U. S. 

6.50 14, 332 

New York Bank Note Co. v. Kidder 
Press Mfg. Co., 192 Ma.ss. 391 . 142 

New York Life Ins. Co. ». Dodge, 246 
U. S. 357 670 



706 

538 

717 

739 
70 



577 



300 



PAGE 

New York Life Ins. Co. v. Hardison, 

199 Mass. 190 . . . 485, 691 

New York & New England R. R. Co. 

V. Bristol, 151 U. S. 556 . 14, 332 

Newcomb & Rockport, 183 Mass. 76 . 232 
Northern Assurance Co. v. Meyer, 194 

Mich. 371 491 

Northern Pacific Ry. Co. v. Douglas 

County, 145 Wis. 288 . . . 359 

V. Duluth, 208 U. S. 583 . 14, 336 

Norton v. Shore Line Electric Ry. Co., 

84 Conn. 24 .... 452 

Norwich v. County Commissioners, 13 

Pick. 60 412 

Noyes v. Gushing, 209 Mass. 123 . 511 

O'Day V. Crabb, 269 111. 123 . . 328 

Ohio V. Thomas, 173 U. S. 276 . . 232 

O'Keefe v. Somerville, 190 Mass. 110 134, 

550 
Old Colony R. R. Co. v. Framingham 

Water Co., 153 Mass. 561 . . 13 

Oliver v. Ohver, 169 Mass. 592, 593 192, 

286 

V. Washington Mills, 11 Allen, 268 

92, 545 
OUila V. Huikari, 237 Mass. 54 . . 524 

Opinion of the Justices, 120 Atl. 629 . 136 



21 R. I. .579 . 


. 623 


6 Gush. 573 . 


. 378, 385 


107 Mass. 


604 . 


46, 107, 127, 580 


122 Mass. 


600 . 


377, 595, 709 


126 Mass. 


557 . 


. 595 


148 Mass. 


623 . 


. 595 


150 Mass. 


586 . 


. 582 


155 Mass. 


598 . 


. 642 


160 Mass. 


586 . 


. 45 


165 Mass. 


599 . 


45, 107, 582 


175 Mass. 


599 . 


. 77 


186 Mass. 


603 . 


. 595 


190 Mass. 


611 . 


. 76, 595 


190 Mass. 


616 . 


. 624 


195 Mass. 


607 . 


. 92, 545 


196 Mass. 


603 . 


. 93, 134 


204 Mass. 


607 . 


67, 70 


207 Mass. 


601 . 


. 33, 570 


208 Mass. 


603 . 


. 185, 677 


208 Mass. 


614 . 


. 595 


208 Mass. 


616 . 


.92 


208 Mass. 


619 . 


. 333 


208 Mass. 


625 . 


. 186 


210 Mass. 


609 . 


. 626 


211 Mass. 


60S . 


. 76 



CASES CITED. 



XXV 



PAGE 

Opinion of the .Justices, 211 Mass. 624 

70, 643 

211 Mass. 630 . 

211 Mass. 632 . 

214 Mass. 602 . 

217 Mass. 607, 611 . 

220 Mass. 613 . 



. 595 

. 625 

. 595, 626 

. 595 

92, 613 

. 166, 333 

. 377 

19, 366 

. 83 

. 382 

. 412, 640 

. 123, 170 

51, 108, 351, 582 

. 45 

. 565, 619 

Owens- 



220 Mass. 627 . 

226 Mass. 607 . 

231 Mass. 603 . 

232 Mass. 601 . 

233 Mass. 603 . 

234 Mass. 597 . 

239 Mass. 606 . 

240 Mass. 601 . 

240 Mass. 611 . 

247 Mass. 589 . 

Owensboro National Bank v 

boro, 173 U. S. 664 .. . 548 

Pa. Co. for Insurance v. Philadelphia, 

262 Pa. 439 328 

Pace V. Alabama, 106 U. S. 583 . 353 

Palmer v. Hampden, 182 Mass. 511 . 342 
Parker v. Baxter, 2 Gray, 185, 189 . 304 
Parkhurst v. Ginn, 228 Mass. 159 . 101 
Parkinson v. West End St. Ry. Co., 173 

Mass. 446 19 

Patapsco Guano v. North Carolina, 

171 U. S. 345 . . . . 407 

Peabody v. Boston & Providence R. R. 

Corpn., 181 Mass. 76 . . . 186 

Pedan v. Robb's Adni'r, 8 Ohio, 227 . 468 
Penn. College Ca.ses, 13 Wall., 190 . 18 
Pcnn. Hospital v. Philadelphia, 245 

U. S. 20 12 

Pennsylvania Co. v. Chicago, 181 III. 

289 677 

People V. Brady, 275 111. 261 . . 708 

V. Butler, 3 Cowcn (N. Y.) 347 652 

V. Compagnie Generale Trans- 

atlantique, 107 U. S. 59 . . 395 

V. Conte, 17 Cal. App. 771 . 328 

V. Elkus, 59 Cal. App. 396 . 623 

V. Hall, 51 N. Y. App. 57 . .84 

•S. Kerrigan, 73 Cal. 222 . .84 

V. Mercantile Credit Co., 166 

N. Y. 416 535 

V. Montgomery, 13 Abb. Pr. Rep. 

(N. S.) 207 328 

V. Murray, 89 Mich. 276 . . 84 

V. Potts, 264 111. 522 . . 534 

V. Priest, 206 N. Y. 274 . . 639 



People V. Rose. 174 111. 310 

V. Squire, 107 N. Y. 593 . 

V. Steele, 231 111. 340 

V. Swafford, 65 Cal. 223 . 

ex rel. Thompson v. Brookfield, 

6 App. Div. (N. Y.) 398 
V. VUIage of Yonkcrs, 39 Barb. 

(N. Y.) 266 

V. Warden of Prison, 157 N. Y. 

116 

V. Weller, 237 N. Y. 316 . 

V. Wells, 2 Cal. 198 . 

V. Yeager, 113 Mich. 228 . 

Perkins v. Westwood, 226 Mass. 268 



PAGE 

534 
14 

619 

84 



678 

658 

619 
443 
706 
84 
352, 
545, 617 
Phi Beta Epsilon Corporation v. Bos- 
ton, 182 Mass. 457 .. . 575 
Philler v. AVaukesha Co., 139 Wis. 211 328 
Phillips V. Boston, 150 Mass. 491 .40 
Phillips Academy v. Andover, 175 

Mass. 118 . . . . 179, 574 

Phinney v. Foster, 189 Mass. 182 . 306 
Physicians' Defense Co. ». O'Brien, 100 

Minn. 490 553 

Physicians' Defense v. Cooper, 199 Fed. 

576 553, 570 

Pierce v. Boston Five Cents Savings 
Bank, 125 Mass. 593 . . . 726 

V. Gould, 143 Mass. 234 . . 452 

V. Lamper, 141 Mass. 20 . . 727 

Pittsburg & Southern Coal Co. v. Lou- 
isiana, 156 U. S. 590 . . 396 
Plessy V. Fergu.son, 163 U. S. 537 . 353 
Plumley v. Massachusetts, 155 U. S. 

461 407 

Pollock V. Farmers' Loan & Trust Co., 
157 U. S. 429, 570; 158 U. S. 601, 

623 95 

Pond V. Negus, 3 Mass. 230 . . 288 

Portland Bank v. Apthorp, 12 Mass. 

252 . . . . 92, 133, 545 

Potinger v. Wightman, 3 Meriv. 67 . 467 
Powers V. Sturtevant, 200 Mass. 519 . 727 
Pratt V. Burdon, 168 Mass. 596 . 477 

V. Tuttle, 136 Mass. 233 . . 101 

Prentice v. Richards, 8 Gray, 226 . 249 
Prudential Ins. Co. v. Cheek, 259 U. S. 

530 335 

Putnam v. Johnson, 10 Mass. 488 . 701 
Radclyffe v. Barton, 154 Mass. 157 . 727 
RaUroad Co. v. Huscn, 95 U. S. 465 . 408 
V. Richmond. 96 U. S. 521 . 334 



XXVI 



CASES CITED. 



PAGE 

Raiid v. Coninionwcalth, 9 Gratt,. (Va.) 

738 052 

Ilayiner v. Tax Coninii.ssionor, 239 

Mass. 410 725 

Rayncs v. Bennett, 114 Mass. 424 . 249 
Rea V. Aldermen of Everett, 217 Mass. 

427 289 

Reagan v. Union Mutual Life Ins. Co., 

189 Mass. 555 . . . .692 

Redemptorist Fathers v. Boston, 129 

Mass. 178 577 

Reed v. Sharon (1868), 35 Conn. 191 . 195, 

255 
Reformed Dutch Church v. Bradford, 

8 Cowen, 457 ... . 152 

Reid V. Colorado, 187 U. S. 137 . 408 

Rcutener v. Cleveland, 107 Ohio St. 

117 623 

Revere v. Boston Copper Co., 15 Pick. 

351 5 

Richardson v. Essex Institute, 208 

Mass. 311 ..... 574 
Rippucci V. Commonwealth Construc- 
tion Co., 190 Mass. 518 . . 493 
Robbins v. Borman, 1 Pick. 122 . 677 
Roberts v. Hawkins, 70 Mich. 566 . 568 
Robertson v. Baldwin, 165 U. S. 275 . 508 
Robinson's Case, 131 Mass. 376 . 48 
Roby V. New York Central R. R., 142 

N. Y. 176 282 

Rockport V. Webster, 174 Mass. 385 . 266 
Round V. Police Commissioner, 197 

Mass. 218 9 

Russell V. Failor, 1 Ohio St. 327 . 568 

Russell V. Howe, 12 Gray, 147 . . 190 

Rutter V. White, 204 Mass. 59 . . 288 

Sackett v. Sanborn, 205 Mass. 110 . 400 
St. Mary's Woolen Mfg. Co. v. Brad- 
ford Co., 14 Ohio C. Ct. 522 . . 359 
St. Paul's Church v. Attorney General, 

164 Mass. 188 . . . . 575 

Salem-Fairfield Telephone Assoc, v. 

McMahon, 78 Ore. 477 . .118 

Salem Lyceum v. Salem, 154 Mass. 15 179, 

575 
Salisbury Land & Improvement Co. v. 

Commonwealth, 215 Mass. 371 12, 64, 

110, 616 
Samburg r;. American Express Co., 136 

Mich. 639 319 

Sands v. Old Colony Trust Co., 195 

Mass. 575 99 



Saranac Land & Timber Co. v. Comp- 
troller of New York, 177 U. S. 318 . 644 
Savage v. Jones, 225 U. S. 501 . . 407 

V. Shaw, 195 Mass. 571 . . 374, 

524, 600 
School Directors v. James, 2 Watts. & 

S. 568 467 

School District No. 3 v. Western Tube 

Co., 13 Wy. 304 . . . .658 

Schreiber v. Chicago & Evanston R. R. 

Co., 115 111. 340 . . . .640 

Scituate v. Weymouth, 108 Mass. 128 412 
Selectmen of Brookline, petitioners, 

236 Mass. 260 . . . . 335 

Selectmen of Natick v. Boston & Al- 
bany R. R. Co., 210 Mass. 229 . 252 
Settle V. Van Evrea. 49 N. Y. 280 . 706 
Shattuck V. Burrage, 229 Ma.ss. 448 . 99 

V. Love joy, 8 Gray, 204 . . 466 

Shaw V. Royce (1911), 1 Ch. 138 . 535 

Shawmut Commercial Paper Co. v. 

Brigham, 211 Mass. 72 . . . 607 

Shea V. Metropolitan Stock Exchange, 
168 Mass. 282 ... . 607 

V. Parker, 234 Mass. 592 . . 80 

Sheldon v. Congregational Parish in 

Easton, 24 Pick. 281 . . . 152 

Shields v. Barrow, 17 How. 130, 144 . 383 
Simplex Elec. Heating Co. v. Common- 
wealth, 227 Mass. 225 . . . 300 
Sklaroff v. Commonwealth, 236 Mass. 

87 265 

Slater v. Gunn, 170 Mass. 509 . . 264 

Slater v. Taylor, 241 111. 102 . .2 

Smith V. Bay State Savings Bank, 202 

Mass. 482 . . . . .421 

Smith V. Texas, 223 U. S. 630 . . 166 

South Lancaster Academy v. Lancas- 
ter, 242 Mass. 553 ... 574 
Southern Pacific R. R. Co. v. San Fran- 
cisco Savings Union, 146 Cal. 290 . 640 
Sparhawk 2). Sparhawk, 116 Mass. 315 625 
Spaulding v. Smith, 162 Mass. 543 . 359 
Spofford V. Carleton, 238 Mass. 528 . 375 
Sprague v. Minon, 195 Mass. 581 . 263 
Springfield v. Springfield St. Ry. Co., 

182 Mass. 41 .... 29 

Sproule V. Fredericks, 69 Miss. 898 . 385 
State V. Bell, 212 Mo. Ill . .328 

V. Brooks, 92 Mo. 542 . . 84 

V. Carragan, 36 N. J. L. 52 . 639 



CASES CITED. 



XXVll 



State V. Conn. Mut. Life Ins. Co., 106 

Tenn. 282 670 

V. Downes, 59 N. H. 320 . . 359 

V. Ehrlick, 65 W. Va. 700 . . 49 

V. Express Co., 60 N. H. 219 . 136 

J'. Latham, 115 Me. 176 . . 168 

V. Middlesex Banking Co., 87 

Conn. 483 SO 

V. Norwich & Worcester R. R. 

Co., 30 Conn. 290 . . .2 

V. Robinson, 101 Minn. 277 . 49 

V. Smith, 153 La. 578 . . 708 

V. Teipner, 36 Minn. 535 . . 328 

V. Township 9, 7 Ohio St. 64 . 151 

V. Turner, 34 Ore. 173 . . 392 

Steamship Co. v. JoUffe, 2 Wall. 450 . 322 
Stevens v. Commonwealth, 4 Met. 360 652 

V. Worcester, 196 Mass. 45 . 328 

Stevenson v. Donndly, 221 Mass. 161 722 
Stone V. Charlestown, 114 Mass. 214 . 66 
V. Farmer's Loan & Trust Co., 116 

U. S. 307 332 

V. Forbes, 189 Mass. 163 . . 99 

V. Kellogg, 165 111. 192 . . SO 

V. Old Colony St. Ry. Co., 212 

Mass. 459 669 

V. Penn Yan, etc., Ry., 197 N. Y. 

279 670 

V. Smith, 159 Mass. 413 . . 737 

Stoughton V. Baker, 4 Mass. 522 . 51, 

110, 637 

V. Cambridge, 165 Mass. 251 . 342 

Strassheim v. Daily, 221 U. S. 280 105, 611 
Strouse v. American Credit Ins. Co., 

91 Md. 244 535 

Suburban Light & Power Co. v. Bos- 
ton, 153 Mass. 200 .. . 288 
Sullivan ». Detroit, etc., Ry., 135 Mich. 

661 708 

Summers v. State, 5 Tex. App. 365 . 328 
Supervisors of Election, 114 Mass. 247 706 
Swan V. Justices of the Superior Court, 

222 Mass. 542 ... . 725 

Sweet V. Rechel, 159 U. S. 380 . . 65 

Sweetser v. Emerson, 236 Fed. 161 . 373, 

600 
Taft V. Adams, 3 Gray, 126 . . 45 

V. Lord, 92 Conn. 539 . . 106 

Talbot V. Hudson, 16 Gray, 417 . 181 

Tanner v. Little, 240 U. S. 369 . 334, 352 
Tax Commissioner v. Putnam, 227 

Mass. 522 547 



Teasdale v. Newell & Snowling Con- 
struction Co., 192 Ma.ss. 440 . . 661 
Tennessee v. Davis, 100 U. S. 257 . 232 
The Dublin Case, 38 N. H. 459, 543 . 152 
Thayer Academy v. Assessors of Brain- 
tree, 232 Mass. 402 .. . 574 
Thayer v. Boston, 124 Mass. 132 . 701 

V. Felt, 4 Pick. 354 . . . 722 

The Penn, 273 Fed. 990 . . . 249 

Thomas v. Municipal Council of Low- 
ell, 227 Mass. 116 . . .699 
Thornberg v. Allman, 8 Ind. App. 531 568 
Thorp V. Lund, 227 Mass. 474, 482 . 575 
Tilton V. Tilton, 196 Mass. 562 . 374, 600 
Tipton V. Tipton, 87 Ky. 243 . . 343 
Todd V. Sawyer, 147 Mass. 570 . 99 
Toupin V. Peabody, 162 Mass. 473 373, 

600 
468 



633 
306 



734 



578 



Townsend v. Kendall, 4 Minn. 412 
Trial of the Seven Bishops, 12 How. 

St. Trials, 183 .... 
Trask v. Little, 182 Mass. 8 
Tremont & Suffolk Mills v. Lowell, 165 

Mass. 265 

Trinity Church v. Boston, 118 Mass. 

164 

Truax v. Raich, 239 U. S. 33 . 333, 570 
Trustees of Wesleyan Academy v. Wil- 

braham, 99 Mass. 509 . . . 574 

Tucker v. Boston, 223 Mass. 478 . 699 

V. Tower, 9 Pick. 109 . . 677 

Turner v. Gardner, 216 Mass. 65 . 12 

V. New York, 168 U. S. 90 . 645 

V. Nye, 154 Mass. 579 . . 181 

Tyler v. Hudson, 147 Mass. 609 . 640 

V. Treasurer and Receiver Gen- 
eral, 226 Mass. 306 . . 322, 601 

Union Inst, for Savings v. Boston, 224 

Mass. 286 185 

United States v. American Woolen Co., 
265 Fed. 404 ... . 249 

V. Cruikshank, 92 U. S. 542 . 635 

V. Howe Fed. Cas. No. 15, 404a . 327 

V. Jones, 109 U. S. 513 . . 508 

V. San Francisco Bridge Co., 88 

Fed. Rep. 891 . . . .233 

Upham V. Draper, 157 Mass. 292 . 102 
Vanhorne v. Dorrance, 2 Dall. 304 . 14 
Varney v. Baker, 194 Mass. 239 . 80 

Viles V. Waltham, 157 Mass. 542 . 701 

Virginia v. Tennessee, 148 U. S. 503 . 741 
Voight V. Wright, 141 U. S. 62 . . 408 



XXVlll 



CASES CITED. 



PAGE 

Wagner v. Schcrcr, 89 N. Y. App. Div. 
202 

Walker v. Treasurer and Receiver Gen- 
eral, 221 Mass. 600 .. . 

Ware v. Fitchburg, 200 Mass. 61 

Warren v. Stearns, 19 Pick. 7.3 . 

Waterbury v. Piatt, 76 Conn. 4.35 

Watson V. Boston, 209 Mass. 18 

Wattles ex rel. Johnson v. Upjohn, 211 
Mich. 514 

Watuppa Reservoir Co. v. Fall River, 
147 Mass. 548 ... . 

Webb V. Page, 1 Car. & K. 23 (Eng.) . 

Welch V. O'Meara, 195 Mass. 541 

V. Swaspy, 193 Mass. 364 . 

Weld V. Gas & Electric Light Commis- 
sioners, 197 Mass. 556 . 

Wesson v. Washburn Iron Co., 13 Al- 
len, 95 

West End St. Ry. Co. v. Malley, 246 
Fed. 625 

West River Bridge Co. v. Dix, 6 How. 
507 

West Roxbury v. Stoddard, 7 Allen, 158 263 

Western Union Tel. Co. v. Chiles, 214 
U. S. 274 

V. New York, 38 Fed. 552 . 

Wetmore v. Karrick, 205 U. S. 141 . 

Whately v. Hatfield, 196 Mass. 393 . 

Wheaton College v. Norton, 232 Mass. 
141 

Wheeler v. HoUis, 19 Tex. 522 . 

V. Jackson, 137 U. S. 245 . 

V. Watertown Fire Ins. Co., 131 

Mass. 1 .... . 

Wheelock v. Lowell, 196 Mass. 220, 225 110 

Wheelwright v. Tax Commissioner, 235 
Mass. 584 735 



41 

498 
66 

726 
14 

574 

623 

263 
327 
698 
451 

726 

4.52 

368 

13 



233 

14 

727 

342 

574 
467 
644 

492 



PAGE 

White V. Howard, 52 Barb. 294 . 468 

Whiting V. Maiden & Melrose R. R. 

Co., 202 Mass. 298 .. , 19 

Whitney v. Commonwealth, 190 Mass. 

531 260 

Whittaker v. Salem, 216 Mass. 483 70, 76, 
110, 642, 700 
Wiggin V. Swott, 6 Met. 194 . . 452 

Wight V. Heublein, 111 Med. 649 . 80 
Willard Hotel Co. v. District of Colum- 
bia, 23 App. D. C. 272 . . . 678 
Williams v. Johnson, 208 Mass. 544 . 117 
Williston Seminary v. County Com- 
missioners, 174 Mass. 427 . . 574 
WUson V. Head, 184 Mass. 515 . 321, 734 
Winnisimmet Co. v. Grueby, 209 Mass. 

1 64 

Wolf V. Germania Ins. Co., 149 Wis. 

576 243 

Wood V. People, 53 N. Y. 511 . . 652 

Worcester v. Board of Appeal, 184 

Mass. 460 725 

V. Boston, 179 Mass. 41 . . 304 

V. Worcester, etc., St. Ry. Co., 182 

Mass. 49 29 

196 U. S. 539 . . . 29 

Worden v. New Bedford, 131 Mass. 23 64 
Wright V. Lyons, 224 Mass. 167 . 58, 

452, 514 

V. Walcott, 238 Mass. 432 . 64, 

130, 616 
Wurts V. Hoagland, 114 U. S. 606 . 181 
Wyeth V. Cambridge Board of Health, 

200 Mass. 474 . 165, 170, 352, 401 
Yard v. Ocean Beach Association, 49 

N. J. Eq. 306 ... . 359 

Yick Wo V. Hopkins, 118 U. S. 356 . 453 



OPINIONS 



OF 



JAY R. BENTON, ATTORNEY -GENERAL 



Taxation — Trust Companies — Meaning of Words 
"Capital Stock." 

The words "the total amount of its capital stock," in G. L., c. 63, § 58, are intended 
to describe the amount of capital stock authorized, issued and paid in in cash. 

So long as a trust company is not dissolved and is not prevented by the State itself 
from doing business, it is subject to the franchise tax imposed by G. L., c. 63, 
§ 58. 

You have requested my opinion as to the application of ^i°gsJj,t?r°of' 
G. L., c. 63, § 58, in respect to two trust companies which and^xSation 
have appHed for abatement of taxes assessed to them for January 22. 
the year 1922 under said section; one on the ground that 
on April 1, 1922, it had no assets whatever, having trans- 
ferred all of its assets to another trust company which had 
assumed its liabilities; and the other on the ground that 
on that date the stock of the company had been turned over 
to Uquidating agents under an agreement for merger with 
another trust company, which had been approved by the 
Commissioner of Banks, and the stockholders had voted 
that proceedings be taken for the dissolution of the company. 

G. L., c. 63, § 58, is as follows: — 

Every corporation subject to section fifty-three or fifty-four shall an- 
nually 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 tln-ee years preceding that in which such assessment is 
laid, the annual rate to be determined by an apportionment of the whole 
amount of money to be raised by taxation upon property in the common- 
wealth during the same year, as returned by the assessors of the several 
towns under section forty-seven of chapter fifty-nine, upon the aggregate 



OPINIONS OF THE ATTORNEY-GENERAL. 

valuation of all towns for the preceding year, as returned under sections 
forty-seven and forty-nine of chapter fifty-nine; 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 questions presented are, first, whether the words 
"the total amount of its capital stock," used in section 58, 
mean the amount of the capital stock of the corporation or 
the value of its capital assets, including franchises and good 
will, less its liabilities; and, secondly, whether or not the 
two trust companies referred to were subject to said section. 

In the strict and proper sense the "capital stock" of a 
corporation is the amount paid in, or to be paid in, as the 
capital upon which the corporation is to do business. 
American Pig Iron Storage Co. v. State Board of Assessors, 
56 N. J. L. 389, 392; State v. Norwich & Worcester R.R. 
Co., 30 Conn. 290, 293; Commercial Fire Ins. Co. v. Board 
of Revenue, Montgomery Co., 99 Ala. 1, 7; Slater v. Taylor, 
241 111. 102, 108; Cook on Corporations, 6th ed., § 8; 14 
C. J. 379. 

In our corporation laws the term "capital stock" is gen- 
erally, if not uniformly, used to designate stock authorized 
or issued. 

By G. L., c. 172, concerning trust companies, it is pro- 
vided in section 7 that the agreement of association shall 
specifically state "the amount of its capital stock, and the 
number of shares into which it is to be divided," and in 
section 11 that, as a preliminary to the transaction of busi- 
ness, it must appear that the whole capital stock has been 
issued and paid in in cash. 

G. L., c. 172, § IS, is as follows: — 

The capital stock of such corporation shall be not less than two hun- 
dred thousand dollars, except that in a city or town whose population 
numbers not more than one hundred thousand the capital stock may be 
not less than one hundred thousand dollars, divided into shares of the 
par value of one hundred dollars each; and except also that in towns 



JAY R. BENTON, ATTORNEY-GENERAL. 

whose population is not more than ten thousand the capital stock may 
be not less than fifty thousand dollars divided into shares of the par value 
of one hundred dollars each; and no business shall be transacted by the 
corporation until the whole amount of its capital stock is subscribed for 
and actually paid in. Any such corporation may, subject to the approval 
of the commissioner, increase its capital stock in the manner provided 
by sections forty-one and forty-four of chapter one hundred and fifty- 
six. No stock shall be issued by any such corporation until the par 
value thereof shall be fully paid in in cash. Any such corporation may, 
subject to the approval of the commissioner, decrease its capital stock 
in the manner provided by said section forty-one and the first sentence 
of section forty-five of said chapter; provided, that the capital stock as 
so reduced shall not be less than the amount required by this section. 

The franchise tax imposed by G. L., c. 63, §§ 53-60, is 
assessed on the value of the corporate franchise, with cer- 
tain deductions, that value, by section 55, being defined as 
"the fair cash value of all the shares constituting its capital 
stock on April first preceding." 

In the form of return which the Commissioner requires 
from trust companies the first three items on the side of 
liabilities are Capital Stock, Surplus, Undivided Profits. 

The provision in G. L., c. 63, § 58, imposing a minimum 
tax on trust companies measured by the amount of capital 
stock, surplus and undivided profits, was first enacted by 
Gen. St. 1918, c. 264, § 1, which amended St. 1909, c. 490, 
pt. Ill, § 43 (as last amended by Gen. St. 1918, c. 222), 
by adding that provision at the end thereof. At the end of 
said section 43, before the amendment made by Gen. St. 
1918, c. 264, § 1, was the following provision: — 

and the total amount of the tax to be paid by such (domestic business) 
corporation in any year upon its property locally taxed in this common- 
wealth and upon the value of its corporate franchise shall amount to not 
less than one tenth of one per cent of the market value of its capital stock 
at the time of said assessment as found by the tax commissioner. 

Section 43, as thus amended, contained both these pro- 
visions, the later immediately following the earlier. One 
relates to domestic business corporations and the other to 



OPINIONS OF THE ATTORNEY-GENERAL. 

trust companies. Both are provisions for minimum taxes, 
one purporting to be measured by the market value of the 
capital stock and the other by the amount of the capital 
stock, to which the amount of surplus and undivided profits 
is to be added. In my judgment, it is clear that the Legis- 
lature, in using the words "the total amount of its capital 
stock," which appear in Gen. St. 1918, c. 264, § 1, and in 
G. L., c. 63, § 58, intended to distinguish "amount" from 
"value," and meant to describe the amount of capital stock 
authorized, issued and paid in in cash. 

I take up now the question whether the two trust com- 
panies mentioned by you were subject to section 58. 

In a recent opinion my predecessor advised you with 
reference to the taxation of certain trust companies, some 
of which were in the hands of the Commissioner of Banks 
on April first, and others of which had ceased to do business 
on April first, that the former were not subject to tax, but 
that the latter were liable to pay a franchise tax. VI Op. 
Atty. Gen. 309. This opinion was given on the authority 
of Greenfield Savings Bank v. Co7nmonwealth, 211 Mass. 
207, and Attorney General v. Mass. Pipe Line Gas Co., 
179 Mass. 15, 19. In the latter case the rule is stated 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 having 
this right under legislative action cannot relieve itself from liabUity to 
taxation by neglecting to do business, or ceasing to do business. Its 
franchise remains, and it may do business when it chooses. Nor can it 
escape taxation by failing to comply with a statute which is intended to 
regulate its conduct while doing business, or before commencing business. 
Whatever the effect of such conditions upon the amount to be assessed, 
after it once has a capital stock divided into shares nothing short of the 
loss of the franchise as a power that may be exercised, if the corporation 
chooses to comply with the law, can leave it free from liability to taxation 
under the statute. 

So long as a corporation is not dissolved its franchise is 
outstanding and, in my opinion, is subject to tax, except 



JAY R. BENTON, ATTORNEY-GENERAL. 

when by the authority of the State itself a corporation is 
not permitted to do business. The tax levied by G. L., 
c. 63, § 58, is a franchise tax, i.e., a tax on the right to do 
business, and in that respect is to be distinguished from the 
tax levied by G. L., c. 63, §§ 32-51, which is an excise with 
respect to the carrying on or doing of business, to which 
only corporations engaged in business are subject. VI Op. 
Atty. Gen. 93. 

It is my opinion that the trust companies which you 
name, since on April 1, 1922, they were not dissolved and 
were not prevented by the State from doing business, were 
subject to tax for 1922 under section 58, and that the fact 
that one of the companies had made an agreement with 
another trust company for a merger, that the stock had been 
put in the hands of a liquidating committee, and that the 
stockholders had voted to petition for dissolution of the 
corporation, does not take the case from the operation of 
the rule. Revere v. Boston Copper Co., 15 Pick. 351, 359, 
360; Boston Glass Manufactory v. Langdon, 24 Pick. 49; 
Briggs v. Cape Cod Ship Canal Co., 137 Mass. 71; Mora- 
wetz on Corporations, § 1011. 



Military Supplies — Military Purposes. 

"Military supplies" are such supplies as are used for the maintenance of the militia 
in suitable efficiency. 

The term "military purposes" comprehends all such uses as may be said to be 
incidental to the general purpose to conserve the military needs of the regi- 
mental organization. 

You have requested my opinion as to whether "sundry ^°s*,^on^n 
miscellaneous articles, such as auto supplies and equipment, andFi 
gas and oil, office furniture and equipment, office supphes, janSso. 
printing, stationery and postage," used by the Adjutant 
General's Department, are military supplies, within the 
purview of St. 1922, c. 545, § 10. 

The pertinent provisions of that statute are as follows : — 



mission on 
Administration 
nance. 



OPINIONS OF THE ATTORNEY-GENERAL. 

Section 10. All materials, supplies and other property, except legis- 
lative or military supplies, needed by the various executive and adminis- 
trative departments and other activities of the commonwealth shall be 
purchased by or under the direction of the purchasing bureau in the man- 
ner set forth in the three following sections. . . . 

Section 11. No supplies, equipment or other property, other than 
for legislative or military purposes, shall be purchased or contracted for 
by any State department, office or commission unless approved by the 
state purchasing agent as being in conformity with the rules, regulations 
and orders made under the following section. . . . 

Supplies used by the Adjutant General's Department are 
not necessarily ''military supplies" or for "military pur- 
poses." "Military supplies" may be defined as such sup- 
plies as are used for the maintenance of the militia in suit- 
able efficiency. Thus the construction and maintenance of 
armories may reasonably be treated as necessary for the 
maintenance of the militia in suitable efficiency. Hodgdon 
V. Haverhill, 193 Mass. 406, 409. The term "military pur- 
poses" comprehends all such uses as may be said to be inci- 
dental to the general purpose to conserve the military needs 
of the regimental organization. McCarter, Attorney General, 
V. Dungan, 74 N. J. Eq. 251, 252. 

No supplies may be purchased or contracted for by the 
Adjutant General's Department except such as come within 
the meaning of "military suppUes" or are for "military pur- 
poses." Whether or not particular supplies are military 
supplies or are used for mihtary purposes is a question of 
fact in each instance. 



January 26. 



jay r. benton, attorney-general. 

Election — Registrars of Voters — Recount — Cleri- 
cal Assistance — Guard Rail. 

Clerical assistants appointed under G. L., c. 54, § 135, may, under the supervision 
of the registrars of voters, do the actual counting of ballots at recounts. 

Such assistants need not be sworn. 

There is no provision of law requiring that a guard rail shall be set up at the place 
of a recount of ballots. 

I have the request of the Committee on Elections of the commiueTon 
House of Representatives (to which was referred the peti- ^'""mr 
tions of Napoleon Bergeron and John Hayes, claiming that 
they were elected to your body from the Twelfth Essex 
Representative District) for my opinion on three matters. 

1. Must the registrars of voters of a city or town personally do the 
actual recounting of ballots? 

G. L., c. 54, § 135, provides for a recount of ballots by 
the registrars, and in that section it is stated that "regis- 
trars of voters may employ such clerical assistance as they 
deem necessary to enable them to carry out this section." 
Unless the clerical assistance is to be in the recounting of 
the ballots, it is difficult to find any need for any such 
authorization, having in mind the things required by said 
section. Assuming, therefore, that you wish to know 
whether the registrars only must do the counting of the 
ballots, I advise you that those employed by them under 
the provision above quoted may, under their supervision, 
do in whole or in part the actual counting. 

2. Must the clerical assistants to the registrars, as provided in G. L., 
c. 54, § 135, last paragraph, be sworn, in any event? 

The paragraph to which you refer is the provision above 
quoted. I do not find any statutory requirement to that 
effect, such as exists in the case of election officers. I am 
therefore of the opinion that they need not be sworn. 

3. Do unauthorized persons have a right to go behind the guard rail? 



OPINIONS OF THE ATTORNEY-GENERAL. 

There is no provision of law, such as exists in regard to 
voting places at primaries or elections, which requires 
registrars to set up a guard rail. The statute requires that 
each candidate "shall be allowed to be present and witness 
such recount, either in person, accompanied by counsel, if 
he so desires, or by an agent appointed by him in writing. 
It is a question of fact in each instance whether such oppor- 
tunity to be present and witness the recount has been 
afforded. 



To the Com- 
missioner of 
Civil Service. 

1923 
February 5. 



Records — Public Records — Public Inspection. 

The only records open to public inspection are public records and those which 
some statute specifically provides shall be so open. 

Public records are records required by law to be filed, or upon which the law re- 
quires an entry to be made. 

You request my opinion as to whether certain books and 
papers of the Board of Registration in Pharmacy are open 
to the inspection of the public, representatives of the press 
or attorneys at law. 

The only records open to public inspection are public 
records and those which some statute specifically provides 
shall be so open. 

G. L., c. 66, § 10, provides: — 

Every person having custody of any public records shall, at reasonable 
times, permit them to be inspected and examined by any person, under 
his supervision, and shall furnish copies thereof on payment of a reason- 
able fee. . . . 

R. L., c. 35, § 5, now G. L., c. 66, § 3, provides: — 

In construing the provisions of this chapter and other statutes, the 
words "public records" shall, unless a contrary intention clearly appears, 
mean any written or printed book or paper, any map or plan of the com- 
monwealth or of any county, city or town which is the property thereof 
and in or on which any entry has been made or is required to be made 
by law, or which any officer or employee of the commonwealth or of a 
county, city or town has received or is required to receive for tiling, , . . 



JAY R. BENTON, ATTORNEY-GENERAL. 

This section relates only to books, papers, maps and 
plans which are "intended for the use of the public" and 
required by law to be filed, or upon which the law requires 
an entry to be made. Round v. Police Commissioner, 197 
Mass. 218; I Op. Atty. Gen. 186, 278, 280, III Op. Atty. 
Gen. 122, 136, 351. 

A former Attorney-General, in an opinion (II Op. Atty. 
Gen. 381), relative to this section, said: — 

This legislative definition cannot be held to include within its intention 
every paper which an officer of the Commonwealth receives and files. 
It must be Kmited to such as he is required by law to so receive for filing. 
Any other construction must be prejudicial to the rights and interests 
of the Commonwealth or its officers, and indeed, of parties or persons 
making communications with such officers. 

G. L., c. 66, § 3, defines ''record," and merely refers to 
"public records" without defining them. The definition of 
"public records" previously established is, however, carried 
over into this act, since no clear intent to the contrary 
appears. 

Only such records, therefore, as you are required by some 
specific statute to keep, receive for filing, or upon which 
you are required to make an entry, are open to public 
inspection. 

G. L., c. 112, § 25, provides: — 

The board shall keep a record of the names of aU persons examined 
and registered by it, of all persons to whom permits are issued under 
section thirty-nine, and of all money received and disbursed by it, and a 
duplicate thereof shall be open to public inspection in the office of the 
state secretary . . . 

I am therefore of the opinion that only the records referred 
to in the above section are open to the inspection of the 
general public. Representatives of the press and attorneys 
at law stand upon no different footing from the general 
public. A registered pharmacist, against whom a com- 



10 OPINIONS OF THE ATTORNEY-GENERAL. 

plaint or charge is pending before the board, or his counsel, 
has, in addition to his right of inspection as a member of 
the public, a right of access to certain other documents. 
G. L., c. 112, § 33, provides: — 

A registered pharmacist against whom a complaint or charge is pend- 
ing before the board, or his counsel, shall have the same right of access to 
documents in the possession of said board as a person charged with crime 
in the courts of the commonwealth would have to documents in the pos- 
session of the clerk of the court or the prosecuting officer. 

This would include a right of access to the complaint, 
entries made thereon, the finding of the board, and any 
deposition (not affidavits) which might be taken. What 
other documents might be included would depend upon the 
facts of the specific case. 

You inquire further whether transcripts of the testimony 
given at hearings "should be provided, either at the State's 
expense or at the expense of the person desiring the same, 
or whether they should be provided at all except through 
summons and court process." I find no provision of law 
requiring the board to have stenographic notes taken of 
such testimony, and I am consequently of the opinion that 
you are not required to furnish transcripts under any cir- 
cumstances. A stenographer, when duly summoned, may 
be required to read his notes in any judicial proceedings. 
Whether or not you should furnish a transcript of such 
testimony to parties in interest, and under what terms such 
transcript should be supplied, is a matter of policy for you 
to determine. 



jay r. benton, attorney-general. 11 

Constitutional Law — Impairment of Contract — 
Eminent Domain — Police Power — Boston Ele- 
vated Railway Company — Eastern Massachu- 
setts Street Railway Company. 

The power to take property by eminent domain and the police power are sovereign 
powers which cannot be granted away by contract with the State. 

Certain bills, if enacted, would be unconstitutional, for reasons stated in previous 
opinions. 

A bill providing for the construction of a tunnel in Boston and a lease thereof to 
the Boston Elevated Railway Company, with a proviso that if the company 
does not consent thereto its elevated structures shall be removed without 
compensation, would, if enacted, be unconstitutional as an impairment of the 
contract contained in Spec. St. 1918, c. 159, and an arbitrary confiscation of 
the company's property. 

A bill providing for an amendment of Spec. St. 1918, c. 1.59, to take effect on its 
acceptance by the Boston Elevated Railway Company, if enacted, would be 
constitutional, under circumstances stated in the opinion. 

Bills providing for the taking by eminent domain of property of the Eastern Massa- 
chusetts Street Railway Company and leasing the same to the Boston Elevated 
Railway Company would be constitutional, if enacted. 

On behalf of the committee on rules you have asked my J^^^^^^f Rep- 
opinion upon the constitutionality of several street railway resen^^atives. 
bills now pending before the committee. Within the past 
two years my predecessor has given opinions to committees 
of the House of Representatives on the constitutionality of 
bills relating directly or indirectly to the service and man- 
agement of the Boston Elevated Railway Company and 
Eastern Massachusetts Street Railway Company, involving 
a consideration of the application and effect of Spec. St. 
1918, c. 159, and Spec. St. 1918, c. 188. VI Op. Atty. Gen. 
147, 396. In these opinions he ruled that the provisions in 
each of said statutes relating 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 
the right of the directors to pass upon contracts for the con- 
struction or operation of additional lines, constituted con- 
tracts between the Commonwealth and the companies 
concerned which could not be impaired without violating 
U. S. Const., art. I, § 10, and that a number of the bills 
submitted would, if enacted into law, be unconstitutional 



February 6. 



12 OPINIONS OF THE ATTORNEY-GENERAL. 

because they contained provisions which would directly 
impair the contractual rights given by the two special 
statutes of 1918. 

With reference to Spec. St. 1918, c. 158, the court held, 
in Boston v. Treasurer and Receiver General, 237 Mass. 403, 
413, 414, that that statute, "having been accepted by the 
railway companies (the Boston Elevated Railway Company 
and the West End Street Railway Company), constitutes 
an agreement between the Boston Elevated Railway Com- 
pany and the Commonwealth that the latter shall take over 
the management and operation of the railway company and 
shall pay therefor the amounts specified in way of compen- 
sation for the use thereof," and that the act is constitutional. 

Some of the bills on which my opinion is asked are plainly 
open to the objections stated in the opinions of my prede- 
cessor. Others involve wholly different considerations. 

Several of the bills provide for the taking of the property 
of one or the other of the two companies in the exercise of 
the power of eminent domain or of the police power. It 
is therefore desirable at the outset to state some of the more 
fundamental principles governing the nature, extent and 
limitations of those powers and the manner in which they 
must be exercised. 

The power to take property by eminent domain for public 
use is one of the high prerogatives of government. Turner 
V. Gardner, 216 Mass. 65, 70; Kohl v. United States, 91 
U. S. 367, 371. It cannot be granted away by contract 
with the State. Such a grant, if it were attempted to be 
made would not come under the protection of the contract 
clause of the Federal Constitution, Pennsylvania Hospital 
V. Philadelphia, 245 U. S. 20. The fact that the taking 
renders impossible further performance of a contract touch- 
ing the property taken does not impair the obligation of 
such contract. Long Island Water Supply Co. v. Brooklyn, 
166 U. S. 685. 

The property taken must be appropriated to public and 
not private uses. Mass. Const., pt. I, art. X; Salisbury 



JAY K. BENTON, ATTORNEY-GENERAL. 13 

Land & Improvement Co. v. Commonwealth, 215 Mass. 371, 
377. Property already devoted to a public use may be 
taken for a different public use, and such an exercise of the 
right of eminent domain over property or rights in the 
nature of property previously granted by the State does not 
impair the obhgation of a contract. Franchises, like other 
property, are subject to the sovereign right of eminent do- 
main. Boston Water Power Co. v. Boston & Worcester. R.R. 
Corp., 23 Pick. 360; Central Bridge Corp. v. Lowell, 4 Gray, 
474, 481; Eastern R.R. Co. v. Boston & Maine R.R., 111 
Mass. 125, 131; Old Colony R.R. Co. v. Framingham Water 
Co., 153 Mass. 561 ; West River Bridge Co. v. Dix, 6 How. 507. 

But property cannot be taken from one party who holds 
it for a public use and given to another to hold in the same 
manner for precisely the same public use. Such a taking, 
effecting a mere change of control, cannot be founded on a 
public necessity. Boston Water Power Co. v. Boston & 
Worcester R.R. Corp., 23 Pick. 360, 393; Cary Library v. 
Bliss, 151 Mass. 364, 378-380; Lake Shore & Michigan 
Southern Ry. v. Chicago & Western Indiana R.R., 97 111. 506. 

In this connection the provisions in Spec. St. 1918, c. 159, 
§ 16, and Spec. St. 1918, c. 188, § 19, reserving the right of 
the Conmionwealth to acquire the property and franchises 
of the respective companies at any time through the exercise 
of the power of eminent domain, should be noted. While 
these provisions cannot be taken to diminish the power of 
the Commonwealth to take property by eminent domain in 
any case, they may have the effect of an agreement by the 
companies that their property may be taken by the Com- 
monwealth even if such taking works a mere change of 
control. 

There is a fm-ther constitutional requirement that "rea- 
sonable compensation" must be paid. Declaration of 
Rights, art. X. It seems to be generally accepted that 
compensation must be made in money, to be paid within 
a reasonable time after the taking, and that future obliga- 
tions cannot be substituted. Attorney General v. Old Colony 



14 OPINIONS OF THE ATTORNEY-GENERAL. 

R.R. Co., 160 Mass. 62, 90, 91; Commonwealth v. Peters, 
2 Mass. 125; Vanhorne v. Dorrance, 2 Dall. 304; Water- 
hury V. Piatt, 76 Conn. 435. 

The police power similarly is a sovereign power of which 
the State cannot be divested by any act of Legislature. 
Commonwealth v. Alger, 7 Cush. 53, 85; Boston Beer Co. 
V. Massachusetts, 97 U. S. 25; New Orleans Gas Co. v. 
Louisiana Light Co., 115 U. S. 650. "A requirement that 
a company or individual comply with reasonable police 
regulations without compensation is the legitimate exercise 
of the power and not in violation of the constitutional inhi- 
bition against the impairment of the obligation of contracts." 
Northern Pacific Ry. Co. v. Duluth, 208 U. S. 583, 596. This 
principle has been applied in decisions sustaining regulations 
requiring railroad companies at their own expense to move 
grade crossings {New York & New England R.R. Co. v. 
Bristol, 151 U. S. 556; Northern Pacific Ry. Co. v. Duluth, 
208 U. S. 583) ; requiring a railroad company to remove a 
railroad track from a city street {Denver & R. G. R.R. Co. 
V. Denver, 250 U. S. 241); requiring a gas company at its 
own expense to change the location of gas pipes to accom- 
modate a system of drainage {New Orleans Gas Co. v. Drain- 
age Commission, 197 U. S. 453) ; and requiring overhead 
wires to be removed and placed under ground {People v. 
Squire, 107 N. Y. 593; Western Union Tel. Co. v. New York, 
38 Fed. 552). But the exercise of the power must be rea- 
sonable in its character, and, under the guise of legislation 
for the public good, property cannot be arbitrarily con- 
fiscated or destroyed. Durgin v. Minot, 203 Mass. 26; 
Dobbins v. Los Angeles, 195 U. S. 223; Dillon, Municipal 
Corporations, 5th ed., §§ 1269, 1270. 

With these preliminary observations I now proceed to a 
particular consideration of the bills which you have sub- 
mitted to me. 

1. Petition for the establishment of fwe-cent fare zones for transportation 
on the street railways in the city of Lynn. 



JAY R. BENTON, ATTORNEY-GENERAL. 15 

The bill submitted with this petition provides specifically 
that the Eastern Massachusetts Street Railway Company 
shall carry passengers on its cars within certain areas for 
five cents. Such a provision would be a direct impairment 
of the right given the trustees by Spec. St. 1918, c. 188, to 
regulate and fix fares on the lines of that company. 

2. Petition for the construction of an additional tunnel and subway in 
the city of Boston and the removal of the elevated railuri]/ structure in the 
Charlestown district of said city. 

' The bill accompanying this petition in substance provides 
that the Boston Transit Commission shall construct a tun- 
nel and subway from the northerly end of the present 
Washington Street tunnel to Sullivan Square; that the 
commission shall within ninety days after the passage of the 
act execute with the Boston Elevated Railway Company, 
in the name of the city, the company consenting thereto, 
a contract in writing for the sole and exclusive use of the 
tunnel and subway and appurtenances, for a period not be- 
yond the period of existing leases of subways to the company, 
at an annual rental of four and one-half per cent of the net 
cost; that at the next city election the question shall be 
submitted to the voters of the city of Boston whether they 
favor the removal of the elevated structure and the sub- 
stitution therefor of subways or tunnels in the city of 
Boston; that if a majority of the voters actually voting 
answer the question in the affirmative, and if the company 
shall not execute the contract with the commission, the 
company shall forthwith discontinue the use of and remove 
its elevated structures between the present Washington 
Street tunnel and Sullivan Square and between the present 
Washington Street tunnel and Dudley Street, together with 
all connections, deflections, loops, stations, etc., and any 
locations theretofore granted to the company between said 
points shall be thereafter revoked as being a menace to the 
public health and a detriment to the public welfare; but 
that if the contract is executed by the company, upon the 



16 OPINIONS OF THE ATTORNEY-GENERAL. 

completion of the tunnel or subway and appurtenances 
and upon notification, the company shall remove and for- 
ever discontinue the use of that part of its elevated structure 
for which the tunnel or subway has been substituted, the 
expense of removing the same to be a part of the cost of 
the tunnel or subway; and in that event the damages sus- 
tained by the company above the benefit received are to 
be determined and paid. 

Briefly summarized, the bill gives to the company an 
option within ninety days after the passage of the act to 
execute a contract for the sole and exclusive use of the pro- 
posed tunnel, with the alternative provisions that if such 
a contract is executed and the city votes to construct the 
tunnel, the elevated structure between the northerly end of 
the Washington Street tunnel and Sullivan Square shall be 
taken by the city and removed, the cost of removal to be 
charged to the cost of construction of the subway and ade- 
quate compensation for the taking paid to the company 
therefor, while if the contract is not executed and the city 
votes to construct the tunnel, the entire elevated structure 
of the company shall be removed by the company at its 
own expense and without compensation, as a menace to 
the public health and a detriment to the public welfare. 

Spec. St. 1918, c. 159, gives to the trustees of the Boston 
Elevated Railway Company the authority to determine the 
character and extent of the service and facilities to be fur- 
nished, subject to the consent of the directors to the making 
of contracts for the operation or lease of subways, elevated 
or surface lines in addition to those then owned, leased or 
operated by the company, or any extensions thereof beyond 
their then hmits, involving the payment of rental or other 
compensation by the company beyond the period of public 
operation. Assuming that the provision in this bill for 
securing the company's consent means consent by the offi- 
cials authorized to act by Spec. St. 1918, c. 159, the provi- 
sion that if the company shall not consent its entire elevated 
structure shall be removed without compensation would, in 



JAY R. BENTON, ATTORNEY-GENERAL. 17 

my opinion, if enacted, be unconstitutional for two reasons : 
first, because it manifestly is included in an attempt to 
coerce the trustees and directors to make a contract for the 
use of the proposed tunnel, and would, therefore, be an 
impairment of the contract with the Commonwealth con- 
tained in said Spec. St. 1918, c. 159, and secondly, because 
it would be manifestly an arbitrary confiscation of the 
property of the company under the guise of legislation for 
the public welfare. WTiether the company's elevated struc- 
ture, erected under the authority and direction of the 
Legislature (St. 1894, c. 548, and amending acts), could be 
ordered to be removed without compensation to the com- 
pany, under any circumstances, as an exercise of the police 
power, is, to say the least, doubtful. But an act containing 
a merely alternative provision for such removal as a penalty 
for failing to do some voluntary act would, on its face, show 
that the provision for removal was not passed as a matter 
of public necessity but in order to compel the doing of the 
voluntary act. For these reasons, as I have stated, the 
provisions of this bill which I have referred to are, in my 
judgment, plainly unconstitutional. 

3. Petition for an (micndment of the law providing for the public operation 
of the Boston Elevated Railway Company and. establishing a five-cent fare on 
the lines of said company. 

The bill accompanying this petition amends Spec. St. 
1918, c. 159, by striking out provisions giving the trustees 
the right to regulate and fix fares, requiring them to estab- 
hsh a five-cent fare for a single continuous passage in the 
same general direction upon the roads owned, leased or 
operated by the company, and providing that the difference 
between the amount received from fares and the cost of 
service shall be paid by the Commonwealth. There is also 
an amendment to section 14 changing the method of ap- 
portionment of amounts assessed to cities and towns to 
meet any deficit. The bill provides that the act shall take 



18 OPINIONS OF THE ATTORNEY-GENERAL. 

effect upon its acceptance by the Boston Elevated Railway 
Company before January 1, 1924. 

The provisions of this bill, taking from the trustees the 
right to regulate and fix fares and establishing a five-cent 
fare, are clearly in derogation of the grant contained in 
Spec. St. 1918, c. 159, and the proposed act would there- 
fore be unconstitutional unless the changes were accepted 
by the parties to the con^tract. The parties to the contract, 
other than the Commonwealth, are the Boston Elevated 
Railway Company and the West End Street Railway Com- 
pany (see Boston v. Treasurer and Receiver General, 237 
Mass. 403, 413). In his opinion to you (VI. Op. Atty. Gen. 
396), my predecessor ruled, with reference to a bill to repeal 
Spec. St. 1918, c. 159, containing a provision that it should 
take effect upon its acceptance by the directors or a majority 
of the stockholders of the Boston Elevated Railway Com- 
pany, that the proposed act would be unconstitutional be- 
cause the directors could not exercise the power attempted 
to be conferred upon them to impair the obligation of Spec. 
St. 1918, c. 159, which had become a binding contract by 
acceptance of the stockholders of the two companies. In 
that opinion my predecessor expressly reserved the question 
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. That precise question is now before me for 
decision, understanding, as I do, that the provision that the 
act shall take effect ''upon its acceptance by the Boston 
Elevated Railway Company" means its acceptance by the 
stockholders of that company. 

Ordinarily the stockholders of a corporation by a majority 
vote may assent to an amendment or repeal of a statute 
constituting a contract between the State and their corpora- 
tion. Pennsylvania College Cases, 13 Wall. 190; Chicago 
L. Ins. Co. V. Needles, 113 U. S. 574; Cf. Durfee v. Old 
Colony, etc., R.R. Co., 5 Allen, 230. Applying this rule, if 
the Boston Elevated Railway Company were the sole party 



JAY R. BENTON, ATTORNEY-GENERAL. 19 

to the contract with the Commonwealth the proposed act 
would, in my opinion, be constitutional. But the West 
End Street Railway Company was also a party to the con- 
tract, and if that corporation is now in existence, in my judg- 
ment, acceptance of the act by its stockholders should be 
provided for. Such provision was made in the Senate bill, 
affecting Spec. St. 1918, c. 159, considered by the court in 
Opinion of the Justices, 231 Mass. 603, 606, where the court 
gave their opinion that the bill, if enacted, would be consti- 
tutional, without, however, considering its effect on the con- 
tractual rights of the corporations concerned. I am in- 
formed that, under St. 1911, c. 740, the properties and 
franchises of the West End Street Railway Company have 
been conveyed to the Boston Elevated Railway Company, 
and preferred stock of the latter has been issued to the 
former in payment therefor, of which a large proportion 
has been distributed to its stockholders. Whether thereby 
a merger of the corporate franchise of the West End Street 
Railway Company has been effected, so that its identity 
has been destroyed, is a doubtful question about which I 
am not sufficiently advised as to the facts to express an 
opinion. See Parkinson v. West End Street Ry. Co., 173 
Mass. 446; Whiting v. Maiden & Melrose R.R. Co., 202 
Mass. 298. If such a merger has taken place, acceptance 
by the stockholders of the Boston Elevated Railway Com- 
pany is necessarily sufficient; but otherwise I think the 
stockholders of the West End Street Railway Company 
should also be given an opportunity to accept or reject 
the act. 

The Boston Elevated Railway Company has different 
classes of stockholders. In the Senate bill considered and 
held constitutional in Opinion of the Justices, 231 Mass. 603, 
holders of the preferred stock issued under Spec. St. 1918, 
c. 159, § 5, were excluded from voting on the question of 
acceptance, but, as I have said, the court in their opinion 
did not consider the question whether the constitutional 
rights of the corporations were affected. I see no reason 



20 OPINIONS OF THE ATTORNEY-GENERAL. 

why the right of stockholders to vote on the question of 
acceptance should be in any respect different from their 
right to vote generally as prescribed by the statutes and 
by-laws of the corporation. 

My opinion, therefore, is that the bill, if enacted, would 
be constitutional if the West End Street Railway Company 
has, in fact, ceased to exist, but that otherwise it would 
not be constitutional unless provision were made for ac- 
ceptance by the stockholders of that company. 

4. Petition that the city of Boston be authorized to purchase or take by 
eminent domain the property and franchises of the Eastern Massachusetts 
Street Railway Company in the Hyde Park district of said city for the pur- 
pose of leasing the same to the Boston Elevated Railway Company. 

The bill accompanying this petition authorizes the city 
of Boston, through its transit department, with the approval 
of the mayor, to purchase or take by eminent domain the 
whole or any portion of the street railway locations, tracks, 
poles, wires and other property used in connection there- 
with, owned by the Eastern Massachusetts Street Railway 
Company and located in Hyde Park, which, in its opinion, 
is necessary for the safe and efficient operation of street 
railways in that portion of Boston. It provides that before 
such purchase or taking the department shall, with the 
approval of the mayor, execute with the Boston Elevated 
Railway Company, in the name of the city, the company 
consenting thereto, a contract in writing for the sole and 
exclusive use of said property at an annual rental of four 
and one-half per cent of the net cost for an imspecified term 
of years. In order to be vaUd, as I have previously said, 
the consent of the company must be given by those officials 
who are authorized by Spec. St. 1918, c. 159, to determine 
whether the property should be leased. 

There are provisions for the issuing of bonds and notes 
to be used in meeting damages, costs and expenses incurred 
in carrying out the provisions of the act. The bill does 
not expressly provide that compensation shall be paid to 



JAY R. BENTON, ATTORNEY-GENERAL, 21 

the Eastern Massachusetts Street Railway Company for 
its property taken by eminent domain, and does not pro- 
vide the method by which the amount of such compen- 
sation shall be determined. But it is not necessary that 
the proposed act shall expressly provide for payment of 
compensation or the method of determining this amount. 
The General Laws contain adequate provisions for payment 
of such compensation. G. L., c. 79, §§ 6, 12, 14, 45. The 
bill secures payment by the provision for an issue of bonds 
and notes outside the statutory limit of indebtedness, assum- 
ing that the amount of such issue, left undetermined in the 
bill, is adequate. These provisions would seem to be 
sufficient. Brimmer v. Boston, 102 Mass. 19, 23; Bent v. 
Emery, 173 Mass. 495, 498. 

This bill raises the question of major importance whether 
the Eastern Massachusetts Street Railway Company can 
be taken by the Commonwealth or a political subdivision 
thereof for the purpose of leasing that property to the 
Boston Elevated Railway Company. As I have previ- 
ously stated, property cannot be taken from one party 
holding it for a public use and given to another to hold in 
the same manner for precisely the same public use, since 
such a taking, effecting a mere change of control, cannot 
be founded on a public necessity. But the taking here 
proposed is of not precisely that sort. The use proposed 
to be made of the property is to lease it to the Boston Ele- 
vated Railway Company for some number of years, on 
terms to be agreed upon, which must, therefore, be such as 
the trustees and the directors of that company, under Spec. 
St. 1918, c. 159, have power to make. It should not be 
overlooked that the Commonwealth, in Spec. St. 1918, 
c. 188, § 19, has expressly reserved the right to take this 
property by eminent domain. The force of the argument 
in favor of the bill, I presume, is that the pubUc will thereby 
receive the benefit of a unified transportation system with 
a unified control, and that in no other way can that desir- 
able result be achieved. In view of these considerations. 



22 OPINIONS OF THE ATTORNEY-GENERAL. 

in my opinion, the proposed act, if enacted, would be con- 
stitutional. 

5. Petition for the creation of a Metropolitan Transportation District. 

The bill accompanying this petition creates a metropoli- 
tan transportation district composed of the cities and towns 
of Arlington, Belmont, Boston, Brookline, Cambridge, 
Chelsea, Everett, Maiden, Medford, Newton, Revere, 
Somerville and Watertown. It contains provisions for the 
management of the affairs of the district and provides for 
the purchase or taking of any or all street railway tracks, 
poles, wires, lands, property and appurtenances and any 
rights or interest therein, except the interest of the Boston 
Elevated Railway Company therein, owned, leased or 
operated in whole or in part by the Eastern Massachusetts 
Street Railway Company in East Boston, Charlestown, 
Everett, Chelsea, and in Revere and Maiden with certain 
exceptions, after the execution of a contract for use as 
therein provided. It authorizes the execution with the 
Boston Elevated Railway Company of a contract in writ- 
ing for the sole and exclusive use by that company of the 
street railway tracks and other property about to be taken, 
at a rental of five per cent of the net cost, the term ending 
with the termination of public operation of the company. 
It provides that the lines of transportation thus added to 
the railway system of the Boston Elevated Company shall 
be managed by the public trustees appointed under Spec. 
St. 1918, c. 159, as if a part of the system at the date of the 
passage of that act. It provides an adequate method for 
determination of damages caused by the taking, and makes 
the district liable for the amount thereof. It provides for 
payment by the issuing and selling of bonds of the district 
to a Umit not specified, and provides that any deficit in 
income necessary to meet the principal and interest of such 
bonds and other expenses shall be apportioned by the 
Treasurer of the Commonwealth among the several cities 



JAY R. BENTON, ATTORNEY-GENERAL. 23 

and towns included in the district and added to the amounts 
due from such cities and towns in the State tax next there- 
after to be collected. There are other provisions giving 
powers and duties to the district and its officers which it is 
not necessary now to refer to. 

The general nature of the scheme and system here laid 
out is similar to that of the bill last considered, and what I 
said there will apply here. I should, however, refer speci- 
fically to the provision that the lines of transportation added 
to the system of the Boston Elevated Railway Company 
by the provisions of the act shall be managed by the trus- 
tees as if a part of the system at the date of the passage of 
that act. No such obligation, of course, could be imposed 
upon the trustees without their consent, but the bill does 
not purport to impose any such obhgation upon them with- 
out their consent, since the lease is to be made with the 
consent of the company for a term ending with the termina- 
tion of public operation, and therefore cannot be made ex- 
cept by the trustees; and if the lease is made by them the 
privileges and obligations defined by the bill are precisely 
those under which the trustees would operate by virtue of 
Spec. St. 1918, c. 159. Therefore, in my judgment, this 
bill, if enacted into law, would be constitutional. 

6. Petition that the Boston Elevated Railway Company be authorized to 
enlarge its terminal at Forest Hills in the West Roxbury district of the city 
of Boston. 

The bill accompanying this petition purports to authorize 
the Boston Elevated Railway Company to enlarge its ter- 
minal at Forest Hills, and for that purpose to take property 
by eminent domain, whether privately or publicly owned, 
to borrow money and issue bonds and notes. It provides 
that takings and proceedings for compensation and other 
proceedings thereunder shall be in accordance with the pro- 
visions of St. 1921, c. 386. (VI Op. Atty. Gen. 410.) I see 
nothing in the proposed act repugnant to any constitutional 
provision. 



24 OPINIONS OF THE ATTORNEY-GENERAL. 

7. Petition that the Boston Elevated Railway Coynpany be required to 
keep in repair the portions of highways occupied by its tracks. 

The bill here presented involves entirely different con- 
siderations and will be dealt with in a separate opinion. 

8. Petition that provisions be made for improved transportation facilities 
between the cities of Boston and Revere. 

The bill accompanying this petition empowers the Boston 
Elevated Railway Company to extend its transportation 
system and, with the approval of the Department of Public 
Utilities, after public hearing, to take by eminent domain, 
subject to the provisions of G. L., c. 79, or to acquire by 
purchase, street railway lines within the city of Revere, 
together with tracks, poles, wires and other structures and 
appliances connected therewith, all property so taken or 
acquired to be the property of the company and to be used 
and operated with and as part of its railway system and 
subject to the management and control provided by Spec. 
St. 1918, c. 159. The company is empowered, with the 
approval of the trustees, during the term of pubhc opera- 
tion, to issue stocks, bonds, notes and other evidences of 
indebtedness to provide funds for payment of properties 
taken or acquired under the provisions of the act, such 
securities to be subject to Spec. St. 1918, c. 159, § 6, so far 
as applicable. 

What I have said concerning petitions numbered 4 and 5 
is equally pertinent in the consideration of this bill, except 
that here the taking is not to be made by the Common- 
wealth or any political subdivision thereof, but by the Bos- 
ton Elevated Railway Company, to which control of the 
property taken is transferred. I do not, however, believe 
that in order to be vahd such a taking must be by the Com- 
monwealth or some political subdivision thereof. Because 
of the legitimate pubhc interest which may be served through 
unified control and ownership, the proposed act, if enacted, 
would be constitutional, in my opinion. 



JAY R. BENTON, ATTORNEY-GENERAL. 25 

9. Petition for the acquisition and 'public operation by the city of Boston 
of street railway lines in the Hyde Park district of said city. 

The bill accompanying this petition purports to create 
in the Hyde Park section of Boston a district for the pur- 
poses of street railway transportation, and to make the 
trustees of the Boston Elevated Railway Company, under 
Spec. St. 1918, c. 159, a corporation under the name of 
Hyde Park Transportation District, with all the powers of 
a street railway company organized under the General 
Laws. It purports to provide that certam lines named 
within that district shall be managed and operated by the 
corporation in behalf of the city of Boston as lines of the 
Boston Elevated Railway Company, subject to the provi- 
sions of Spec. St. 1918, c. 159. It further purports to pro- 
vide that the Eastern Massachusetts Street Railway Com- 
pany shall cease to operate said street railway lines and shall 
permit the corporation to take over and use the same and 
all property appurtenant thereto, with a provision that the 
corporation shall pay to the company an annual rental at 
the rate of five per cent on a sum equal to the value of the 
property taken. There are other provisions purporting to 
regulate rates of fare, and other provisions which need not 
now be referred to. 

In my opinion, this bill is clearly unconstitutional, both 
because of additional powers and duties imposed upon the 
trustees of the Boston Elevated Railway Company in vio- 
lation of the provisions of Spec. St. 1918, c. 159, and because 
the management and control of the Eastern Massachusetts 
Street Railway Company is taken from the trustees thereof 
in violation of the contract contained in Spec. St. 1918, 
c. 188. The bill does not indicate an intention that the 
property of the Eastern Massachusetts Street Railway Com- 
pany shall be taken by an exercise of the power of eminent 
domain, and its provisions, in my opinion, cannot be so 
construed. But if the exercise of that power were intended 
by the bill, there is clearly no adequate provision for com- 



26 OPINIONS OF THE ATTORNEY-GENERAL. 

pensation, since there is no provision for payment for the 
property taken, but only a provision for the payment of 
annual rental. Attorney General v. Old Colony R.R. Co., 
160 Mass. 62. 

10. Petition relative to establishing a five-cent fare zone on street railway 
lines operated in the city of Lowell. 

The bill accompanying this petition provides specifically 
that the rate of fare for a single passage on the lines of the 
Eastern Massachusetts Street Railway Company operating 
in the city of Lowell within the limits of travel of two miles 
from Kearney Square shall be five cents. Such a provision 
would be a direct impairment of the right given the trustees 
by Spec. St. 1918, c. 188, to regulate and fix fares on the 
lines of that company. 

With respect to the nine bills which I have dealt with I 
have not attempted to scrutinize with particularity each 
one of them and point out every detailed feature which 
may be objectionable. Your inquiry not being directed to 
any specific feature of the bills, it is clear that it is impos- 
sible for me to foresee every question that might be raised 
or that your committee might have in mind. I have con- 
fined my attention to the fundamental questions of consti- 
tutional law involved in each bill which to me seem to merit 
consideration. 



February 7. 



jay r. benton, attorney-general. 27 

Constitutional Law — Impairment of Contract — 
Requirement that Boston Elevated Railway 
Company keep in Repair Portions of Highways 
occupied by its Tracks. 

A statute requiring the Boston Elevated Railway Company to keep in repair 
the portions of highways occupied by its tracks, and exempting it from taxes 
imposed by G. L., c. 63, §§ 61-66, inclusive, would be constitutional. 

On behalf of the committee on rules you have transmitted Joul'e^of Rep- 
to me the petition of Edward W. Quinn, mayor of the city -^eseiuft'^^^- 
of Cambridge, and another, that the Boston Elevated Rail- 
way Company be required to keep in repair the portions of 
highways occupied by its tracks, and have asked my opinion 
as to the constitutionality of that measure. 

The bill accompanying the petition is as follows : — 

Section 1. During the period of public operation of the Boston Ele- 
vated Railway Company under the provisions of chapter one hundred 
and fifty-nine of the special acts of nineteen hundred and eighteen, and 
acts in amendment thereof, and supplementary thereto, the Boston 
Elevated Railway Company shall keep in repair, to the satisfaction of 
the superintendent of streets, street commissioner, road commissioners, 
or surveyors of highways, the paving, upper planking or other surface 
material of the portions of streets, roads and bridges occupied by its 
tracks; and if such tracks occupy unpaved streets or roads, shall, in 
addition, so keep in repajr eighteen inches on eaph side of the portion 
occupied by ife tracks, and shall be liable for any loss or injury that any 
person may sustain by reason of the carelessness, negligence or miscon- 
duct, of its agents and servants in the construction, management, and 
use of its tracks. 

Section 2. When a party upon the trial of an action recovers damages 
of a city or town for an injury caused to his person or property by a de- 
fect in a street, highway, or bridge occupied by the tracks of said com- 
pany, if said company is liable for such damages, and has had reasonable 
notice to defend the action, the city or town may recover of the said 
company, in addition to the damages, all costs of both plaintiff and de- 
fendant in the action. 

Section 3. During the period of public operation of the Boston Ele- 
vated Railway Company under the provisions of chapter one hundred 
and fifty-nine of the special acts of nineteen hundred and eighteen, and 
acts in amendment thereof and supplementary thereto, said company 



28 OPINIONS OF THE ATTORNEY-GENERAL. 

shall not be required to make the returns nor shall there be assessed upon 
or paid by it the taxes required by sections sixty-one to sixty-six, inclusive, 
of chapter sixty-three of the general laws. 

Your question requires a somewhat extended analysis of 
the charter of the Boston Elevated Railway Company and 
certain amendments thereof, of statutes relating to the re- 
pair of highways occupied by street railway companies, and 
of decisions and opinions interpreting those statutes and 
their effect. 

The Boston Elevated Railway Company was incorporated 
by St. 1894, c. 548. At the time of its incorporation P. S., 
c. 113, § 32, was in force, containing the following pro- 
vision : — 

Every street railway company shall keep in repair, to the satisfaction 
of the superintendent of streets, street commissioner, road commissioners, 
or surveyors of highwaj^s, the paving, upper planking, or other surface 
material of the portions of streets, roads, and bridges occupied by its 
tracks; and if such tracks occupy unpaved streets or roads, shall, in 
addition, so keep in repair eighteen inches on each side of the portion 
occupied by its tracks, and shall be liable for any loss or injury that any 
person may sustain by reason of the carelessness, neglect, or misconduct, 
of its agents and servants in the construction, management, and use of 
its tracks. 

The charter of the Boston Elevated Railway Company 
was amended in many respects by St. 1897, c. 500. Section 
10 of that statute contained the following provision: — 

. . . During said period of twenty-five years no taxes or excises not at 
present in fact imposed upon street railways shall be imposed in respect 
of the lines owned, leaded or operated by said corporation, other than 
such as may have been in fact imposed upon the lines hereafter leased or 
operated by it at the date of such operating contract or of such lease or 
agreement hereafter made therefor nor any other burden, duty or obliga- 
tion which is not at the same time imposed by general law on all street 
railway companies; provided, however, that said corporation shall be 
annually assessed and shall pay taxes now or hereafter imposed by general 
law in the same manner as though it were a street railway company, and 



JAY R. BENTON, ATTORNEY-GENERAL. 29 

shall, in addition, . . . pay to the Commonwealth, . . . during said 
period of twenty-five years, an annual sum, ... (to be determined as 
therein provided). 



The law requiring street railway companies to keep in 
repair portions of streets occupied by their tracks was 
materially changed in the following year by St. 1898, c. 578. 
Section 1 excepted from the operation of the act the Boston 
Elevated Railway Company and companies whose railways 
were then leased or operated by said company. Sections 
6 to 10, inclusive, imposed upon street railway companies 
an additional excise tax for the benefit of cities and towns in 
which such companies were operating, to be applied to the 
construction, repair and maintenance of the public ways and 
the removal of snow therefrom. Section 11 contained the 
provision that "street railway companies shall not be re- 
quired to keep any portion of the surface material of streets, 
roads and bridges in repair, but they shall remain subject 
to all legal obligations imposed in original grants of loca- 
tions"; and this provision appears in substantially the same 
form in R. L., c. 112, § 44, and G. L., c. 161, § 89. By sec- 
tion 26, P. S., c. 113, § 32, was repealed, subject to the 
exception contained in section 28. Section 28 provided, in 
part, that "for the term of twenty-five years from the tenth 
day of June in the year eighteen hundred and ninety-seven 
this act shall not apply to or affect the Boston Elevated 
Railway Company or any railways now owned, leased, or 
operated by it, . . . and the acts and parts of acts repealed 
by section twenty-six hereof shall continue during said term 
in full force so far as they relate thereto," 

The constitutionality of St. 1898, c. 578, § 11, was ques- 
tioned and sustained in Springfield v. Springfield St. Ry. Co., 
182 Mass. 41, and Worcester v. Worcester, etc., St. Ry. Co., 
182 Mass. 49, and the decision in the latter case was affirmed 
on a writ of error by the Supreme Com't of the United 
States in Worcester v. St. Ry. Co., 196 U. S. 539. In those 
cases the question raised by the respective cities was whether 



30 OPINIONS OF THE ATTORNEY-GENERAL. 

the statute, in so far as it abrogated conditions in grants of 
location not original, violated the constitutional provision 
against impairing the obligation of contracts. In the Spring- 
field case the court held that the locations did not constitute 
contracts, or, if they did, that they were of such a nature 
that the Legislature could modify or annul them without 
thereby violating the constitutional provision; that they 
were analogous to licenses to run omnibuses and conveyed 
no exclusive rights in the highways or streets in which they 
were granted. In the Worcester case the court pointed out 
that the imposition of an obligation in the charters of street 
railways or the general laws to keep in repair some small 
portions of the streets and bridges occupied by their tracks 
and other obligations in the guise of restrictions upon grants 
of locations, was a method of compelling the companies to 
contribute to the burden imposed upon municipalities with 
respect to roads and bridges, in the nature of indirect taxes, 
and that St. 1898, c. 578, was enacted for the purpose of 
freeing the companies, at least to a considerable extent, 
from such indirect obligations and imposing certain new 
taxes, of which the municipalities were given the benefit. 
The Supreme Court of the United States on writ of error 
sustained this decision, on the ground that the city had no 
proprietary right in the property of the defendant or to 
demand the continuance of an obligation to pave and repair 
the streets, that the city was merely a political subdivision 
of the state, and that the rights in question were not private 
property beyond legislative control. 

The effect of St. 1898, c. 578, by its terms (§§1 and 28), 
was to leave the Boston Elevated Railway Company under 
the same duty with regard to the repair of streets that 
existed prior thereto, and this obligation continued by vir- 
tue of the exception in section 28 until June 10, 1922. On 
the other hand, of course, it was not required to pay the 
new taxes imposed by sections 6 to 10, inclusive, of the act. 
There is a serious question whether this exception of the 
Boston Elevated Railway Company from the operation of 



JAY R. BENTON, ATTORNEY-GENERAL. 31 

the act did not make the whole statute unconstitutional. 
The question is of a nature that makes a positive answer 
difficult. A statute requiring street railway companies to 
carry pupils of the public schools to and from school at 
reduced rates, and excepting the Boston Elevated Railway 
Company from its provisions, was held constitutional in 
Commonwealth v. Interstate Consolidated St. Ry. Co., 187 
Mass. 436. The court there pointed out that the situation 
of the lines of the Boston Elevated Railway Company in the 
midst of a dense population was so different from that of 
other lines in the State that it might properly call for an 
exemption from the law established for others. See also 
Commonwealth v. Boston & Northern St. Ry. Co., 212 Mass. 
82. The same consideration may lead to the conclusion 
that there might properly be a special reason for continuing 
to impose a duty on the company to keep in repair portions 
of streets and bridges occupied by their tracks. I cannot 
say, therefore, that St. 1898, c. 578, was unconstitutional 
because the Boston Elevated Railway Company was ex- 
cepted from its operation. 

There is a further question whether St. 1898, c. 578, was 
in violation of any right created by St. 1897, c. 500, § 10. 
Two of my predecessors held that section 10 constituted a 
contract between the Commonwealth and the Boston 
Elevated Railway Company. II Op. Atty. Gen. 261, 426. 
If so, it might well have been questioned whether the pro- 
vision in that section, that during the period of twenty-five 
years no burden, duty or obligation other than taxes or 
excises should be imposed on the Boston Elevated Railway 
Company which v/as not at the same time imposed by gen- 
eral law on all street railway companies, did not have the 
effect of making the provisions of St. 1898, c. 578, § 11, 
applicable to the Boston Elevated Railway Company, not- 
withstanding the provisions of sections 1 and 28 excepting 
the Boston Elevated Railway Company from the operation 
of that statute. But I am informed that no such contention 
was made and that, in fact, the obligations of the previous 



32 OPINIONS OF THE ATTORNEY-GENERAL. 

law were always applied to and performed by the Boston 
Elevated Railway Company. St. 1897, c. 500, § 10, was 
expressly repealed by Spec. St. 1918, c. 159, § 17, so that 
this possible constitutional question was thereby removed. 

We come now directly to the question whether the pro- 
posed act would be unconstitutional. 

Certainly it violates no rights given or protected by Spec. 
St. 1918, c. 159. There is no provision in that statute 
affecting to the slightest extent the right of the Common- 
wealth to impose any obligation on, or to change any obli- 
gation of, the company with respect to the repair of streets 
or the payment of taxes. Indeed, section 2 provides that 
"nothing herein contained shall be held to affect the right 
of the commonwealth or any subdivision thereof to tax the 
company or its stockholders in the same manner and to 
the same extent as if the company had continued to manage 
and operate its own property." 

The effect of section 1 of the proposed act is merely to 
continue the obligations of the Boston Elevated Railway 
Company imposed by P. S., c. 113, § 32, for the period of 
public operation under Spec. St. 1918, c. 159, as they were 
during the period of twenty-five years from June 10, 1897, 
by virtue of the excepting provision in St. 1898, c. 578, § 28. 
In my judgment, therefore, section 1 of the proposed act 
would be constitutional, if enacted. 

Section 3 of the proposed act, providing that during the 
period of public operation the company shall not be re- 
quired to make the returns and shall not have assessed upon 
it the taxes imposed bj^ G. L., c. 63, §§ 61-66, exempts 
the company from payment of the excise tax imposed by 
those sections. This excise tax is the same tax which was 
first imposed by St. 1898, c. 578, §§ 6-10. The effect of 
this section, therefore, is merely to except the company 
from the burdens as well as the benefits of the law first 
appearing in St. 1898, c. 578. If section 1 of the proposed 
act is constitutional, in my judgment, section 3 also would 
be clearly constitutional. 



JAY R. BENTON, ATTORNEY-GENERAL. 33 

The provisions of section 2 are similar to those contained 
in P. S., c. 113, § 33. I see nothing unconstitutional in 
those provisions. 



Pharmacist — Narcotic Drugs — Prescriptions — 
Copies — Evidence. 

Under G. L., c. 94, § 198, a prescription for narcotic drugs, when filled, must be 
retained on file for at least two years by the druggist filling it, and no copy 
of such prescription shall be made except for the purpose of record by said 
druggist. 

It follows that a druggist cannot be summoned to appear before a court and ordered 
to bring with him the original prescription for narcotic drugs; but since the 
prescription and the druggist's record are required by statute to be open at 
aU. times to inspection by the officers of the Department of Public Health, 
the Board of Registration in Pharmacy, the Board of Registration in Medi- 
cine, authorized agents of said department and boards, and by the police 
authorities and police officers of towns and cities, the statements and items 
contained therein may be shown by the testimony of any observer thereof. 

You request my opinion on the following questions : — ■ m°ssk)n?r°^" 

Civil Service 
1923 

1. May a copy of a prescription or the original prescription for a nar- February 7. 
cotic drug be taken from the files of a retail pharmacy by any of the 
authorities specified in G. L., c. 94, § 198, for purposes of evidence in 

the prosecution of a violator of the provisions of tliis chapter, in so far 
as it relates to narcotic drugs? 

2. May a druggist be permitted or required, under said section 198, 
to make a copy of a prescription for narcotic drugs, filled by him in the 
course of his business, and give the copy to any of the authorities specified 
in said section, at their request, for purposes of evidence? 

3. May a druggist who has in his possession a prescription for narcotic 
drugs which has been fiUed by him in the course of his business, be sum- 
moned to appear before a court and ordered to bring with him the original 
prescription for narcotic drugs, which, according to said section 198, 
"shall be retained on file for at least two years by the druggist filling it?" 

The sale and distribution of narcotic drugs are governed 
by the provisions of G. L., c. 94, §§ 197-217, inclusive. The 
law pertaining to your question is contained in section 198, 
the material portion of which is as follows : — 

The prescription, when filled, shall show the date of filling and the 
legal signature of the person filling it, written across the face of the pre- 



34 OPINIONS OF THE ATTORNEY-GENERAL. 

scription, together with the legal signature of the person receiving such 
drug, and the prescription shall be retained on file for at least two years 
by the druggist filling it. No prescription shall be filled except in the 
manner indicated therein and at the time when it is received, and the 
full quantity of each substance prescribed shall be given. No order or 
prescription shall be either received for fiUing or filled more than five 
days after its date of issue as indicated thereon. Each pharmacist who 
fills a prescription for a narcotic drug shall securely attach to the con- 
tainer thereof a label giving the name and address of the store where the 
prescription is filled, the date of filling, the name of the person for whom 
it is prescribed, the name of the physician, dentist or veterinarian who 
issued it; and the narcotic drug so delivered shall always be kept in its 
container until used. No prescription shall be refilled, nor shall a copy 
of the same be made except for the purpose of record by the druggist 
filling the same, such record to be open at all times to inspection by the 
officers of the department of public health, the board of registration in 
pharmacy, the board of registration in medicine, authorized agents of 
said department and boards, and by the police authorities and police 
officers of towns. 

This statute is explicit, and in view of the express prohi- 
bition contained therein I am of the opinion that no copy 
of a prescription therein specified can properly be made and 
used for the purpose outHned in your first and second ques- 
tions, and I accordingly answer them in the negative. 

Your third question presents other considerations, de- 
pending upon whether or not the druggist in question is a 
defendant or a witness in a case where another person is 
defendant. In the former instance, he could not be obliged 
to furnish evidence tending to incriminate him. The gen- 
eral rule as to production of documents may be stated thus 
(I Greenleaf on Evidence, 14th ed., § 560) : — 

When the instrument or writing is in the hands or powerof theadverse 
party, there are, in general, no means at law of compelling him to pro- 
duce it; but the practice, in such cases, is, to give him or his attorney a 
regular "notice to produce" the original. Not that, on proof of such 
notice, he is compellable to give evidence against himself, but to lay foun- 
dation for the introduction of secondaiy evidence of the contents of the 
document or writing, by showing that the party has done all in his power 
to produce the original. 



JAY R. BENTON, ATTORNEY-GENERAL. 35 

See also Wigmore on Evidence, §§ 1199-1210. 

On the other hand, if a party is summoned as a witness in 
an action against another person and it is desired to have 
the witness produce certain documents, the procedure is to 
issue a subpoena duces tecum directed to the person who has 
them in his possession. See I Greenleaf on Evidence, 14th 
ed., § 559; Wigmore on Evidence, §§ 1211, 1213. 

But in the case stated by your inquiry the statute ex- 
pressly provides that said prescription "shall be retained on 
file for at least two years by the druggist filling it," and ex- 
pressly prescribes and restricts the use of the same. It is 
therefore possible that the druggist is, by reason of a privi- 
lege, legally not compellable to produce the prescription, 
which would be clearly an excuse for non-production. 

In this connection the decision in the case of Common- 
wealth V. Stevens, 155 Mass. 291, is significant. Like the 
case under consideration, that case involved the produc- 
tion of the register required by law to be kept by a drug- 
gist, in which entries of sales of intoxicating liquors were 
required to be made. In that case the court says : — 

The rule that requires the production of the best evidence readily 
obtainable is an important one. Where the contents of a book or written 
document are needed in evidence, the book or writing should be produced, 
when there is no good reason for the non-production of it; and if in the 
present case the presiding justice had excluded the evidence, unless the 
defendant had failed to produce the book on notice, we cannot say that 
his ruling would have been erroneous. 

On the other hand, this was not an ordinary writing or a public record. 
It was a register required by the statute to be kept as a part of the busi- 
ness done by the defendant under his license. St. 1887, c. 431, § 3. Its 
form is prescribed by the statute. The pages are to be divided into eight 
columns, each column with a prescribed heading, under which the entries 
are to be made showing the required particulars in regard to each sale. 
These particulars must be entered at the time of every sale. The statute 
contemplates that this book shall all the tune be kept at the store of the 
apothecary, and provides that it shall at all times be open to the inspec- 
tion of certain officers mentioned. The witness was one of these officers, 
and he was allowed to testify to the number of entries of sales within a 
specified time. Neither the witness nor any other of the officers of the 



36 OPINIONS OF THE ATTORNEY-GENERAL. 

Commonwealth had a right to take the book from the defendant and bring 
it to the court, and there would be some force in a suggestion that a notice 
to the defendant to produce it to be used in evidence would have been 
inconsistent with a proper regard for his duty to keep it where entries of 
sales might immediately be made in it, so long as he continued to do busi- 
ness under his license. The particulars of the entries in regard to the 
sales were not offered in evidence, and the precise words written in the 
register were not in question. It has been held that the language of a 
license hanging on the wall of a liquor dealer's shop may be testified to 
orally. Commonwealth v. Brown, 124 Mass. 318. This decision does not 
cover the case at bar; but there is some ground for contending that the 
number of sales found recorded in the register should be considered as a 
fact in the mode of conducting the defendant's business, to be observed 
by a police officer in the performance of his duty of inspecting the regis- 
ter, and to be testified to like any other material fact apparent to an ob- 
server. Such evidence was received without objection in Commonwealth 
V. Perry, 148 Mass. 160. We are not convinced that there was such 
error in this particular as to entitle the defendant to a new trial. 

I am accordingly constrained to advise you that in either 
case, namely, whether the druggist be a defendant or a 
witness, he cannot be "summoned to appear before a court 
and ordered to bring with him the original prescription for 
narcotic drugs"; but since the prescription and the drug- 
gist's record are required by statute to be open at all times 
to inspection by the officers of the Department of Public 
Health, the Board of Registration in Pharmacy, the Board 
of Registration in Medicine, authorized agents of said de- 
partment and boards, and by the police authorities and police 
officers of towns and cities, the statements and items con- 
tained therein may be shown by the testimony of any ob- 
server thereof, which might well be the best evidence readilj^ 
obtainable. 



jay r. benton, attorney-general. 37 

Civil Service — Promotion — Probationary Period. 

The rule providing that no person "shall be regarded as holding office or employ- 
ment in the classified public service until he has served a probationary period 
of six months," does not apply in the case of promotion from one grade of the 
classified civil service to the next grade. 

To the Com- 



You request my opinion as to whether section 1 of Civil m?ssionM ^" 

Civil Servic( 

1923 
February 8. 



Service Rule 18 applies in the case of promotion from one '^1923'^^"'^ 



grade of the classified civil service to the next grade. I 
assume that you are referring to the case of a person who 
is in the classified public service. 
Section 1 provides : — 

No person appointed in the official or labor division shall be regarded 
as holding office or employment in the classified public service until he 
has served a probationary period of six months. 

This rule is made under the provisions of G. L., c. 31, 
§ 3, which reads, in part, as follows : — 

The board shall, subject to the approval of the governor and council, 
from time to time make rules and regulations . . . Such rules . . . shall 
include provisions for the following: 

(e) A period of probation before an appointment or emploj^ment is 
made permanent; . . . 

One of the purposes of the Civil Service Act is to ensure 
tenure of office for an employee who has satisfactorily passed 
his period of probation. If, under section 1 of Civil Service 
Rule 18, a person in the classified public service lost his 
status as a civil service employee upon promotion to the 
next grade, and again became a probationer, the rule would 
not afford the protection of permanent employment con- 
templated by the statute. Under such a construction a 
civil service employee could accept a promotion only at the 
cost of his civil service standing, and the appointing officer 
could rid himself of any employee in the classified public 
service by the simple device of first promoting him, thus 
making him a probationer, and then discharging him. 



38 



OPINIONS OF THE ATTORNEY-GENERAL. 



Neither the statute nor the rule intends such result. The 
statute, as well as the rules made thereunder, distinguishes 
between an "appointment" and a "promotion." See 
G. L., c. 31, §§ 3 and 18; Civil Service Rules 18 and 28; 
McDonald v. Fire Engineers of Clinton, 242 Mass. 587. 

I am therefore of the opinion that section 1 of Civil Ser- 
vice Rule 18 does not apply to persons who are holding office 
or employment in the classified public service and are pro- 
moted from one grade of the classified civil service to the 
next grade. The case of McDonald v. Fire Engineers of 
Clinton, supra, which involved the status of a call fireman 
appointed to the permanent force, has no bearing on this 
question. 



Listing Board of the City of Boston — City 
Department, 

The listing board of the city of Boston is not a city department, and is not sub- 
ject to the ordinances of that city relative to printing and office supplies. 



To the Police 
Commissioner 
of Boston. 

1923 
February 12. 



You request my opinion on certain questions of law hav- 
ing to do with the listing board of the city of Boston, created 
by Gen. St. 1917, c. 29, § 7. 

You ask, first, as to whether or not the said listing board 
is obliged to have all its printing and stationery supplied 
by the printing department of the city of Boston or whether 
outside bids for the same can be called for. You ask, sec- 
ond, as to whether the said listing board may legally con- 
tract for other supplies without advertising for the same in 
accordance with the provisions of the city charter governing 
department heads, as found in St. 1909, c. 486, § 30. 

In your communication you call my attention to section 1 
of chapter 26 of the Revised Ordinances of the City of Bos- 
ton, which provides that the printing department of the 
city of Boston shall supply all printing, stationery and 
office supplies used by any board, commission or depart- 
ment for which the said city is required by law to furnish 



JAY R. BENTON, ATTORNEY-GENERAL. 39 

such supplies; and to section 16 of chapter 3 of said Ordi- 
nances, which provides that every officer in charge of a 
department requiring any printing, binding, stationery or 
other office supplies shall obtain the same from the said 
superintendent of printing, by requisition, on blanks to be 
prepared by the superintendent. 

The answer to both your questions depends upon whether 
the listing board is a "department," within the meaning of 
the statute and of the ordinances above quoted. 

The listing board is a board established by Gen. St. 1917, 
c. 29, § 7, which reads as follows: — 

In Boston there shall be a listing board composed of the police com- 
missioner of the city and one member of the board of election commis- 
sioners, who shall annually be appointed by the mayor, without confirma- 
tion by the city council, for the term of one year and who shall belong to 
that one of the two leading political parties of which the police commis- 
sioner is not a member. In case of disagreement between the two mem- 
bers of said board, the chief justice of the municipal court of the city of 
Boston, or, in case of his disability, the senior justice of said court who is 
not disabled, shall, for the purpose of settling such disagreement, be a 
member of said board and shall preside and cast the deciding vote in 
case of a tie. 

No authority is given to the city to review its action or 
to add to or subtract from the powers and duties of the 
listing board. Section 1 of chapter 2 of the Revised Ordi- 
nances provides that "the mayor shall appoint heads of 
departments and members of municipal boards and fill 
vacancies therein in the manner provided by statute." It 
would seem that the departments contemplated by the 
other sections of the Revised Ordinances, to which you 
refer, are those which come within the purview of section 1 
of chapter 2 of the Ordinances, and, obviously, the listing 
board does not. 

Furthermore, this is a board created by statute, of which 
the Police Commissioner for the City of Boston is one 
member. As he is a State official, the city government 
cannot impose on him duties in addition to those imposed 



40 



OPINIONS OF THE ATTORNEY-GENERAL. 



by the acts creating his office, and acts in addition to and 
in amendment thereof. V Op. Atty. Gen. 394. The fact 
that the mayor has the power of appointment, within a 
very restricted field, of one member of the board has no 
significance. Mahoney v. Boston, 171 Mass. 427, 429. 

The same construction must of necessity be given to the 
word "department" in St. 1909, c. 486, § 30. The Hsting 
board, as established, is not a department of the city nor 
one of its governing boards. Phillips v. Boston, 150 Mass. 
491, 494. I therefore advise you that the listing board 
does not come Mdthin the provisions of that statute nor 
within the provisions of section 1 of chapter 26 or of section 
16 of chapter 3 of the Revised Ordinances of the City of 
Boston. 



To the Com- 
missioner of 
Corporations 
and Taxation. 

1923 
February 12. 



Income Tax Act — Interpretation. 

G. L., c. 62, § 1 (a), Third, excepting from the income tax interest from "loans 
secured exclusively by mortgage of real estate, taxable as real estate, situated 
in the commonwealth," should be construed as providing for the exemption 
of interest from loans secured by mortgage exclusively of real estate, taxable 
as real estate, situated in the Commonwealth. 

Interest from a mortgage note, or an issue of mortgage bonds, endorsed by another 
person and secured by a mortgage of real estate situated and taxed in Massa- 
chusetts, is exempt from taxation by virtue of G. L., c. 62, § 1 (a), Third. 

You ask my opinion as to the proper interpretation of 
G. L., c. 62, § 1, subsection (a), cl. Third. The material 
portion of said section 1 is as follows : — 

Section 1. Income of the classes described in subsections (a), (6), (c) 
and (e) received by any inhabitant of the commonwealth during the pre- 
ceding calendar year, shall be taxed at the rate of six per cent per annum. 

(a) Interest from bonds, notes, money at interest and all debts due 
the person to be taxed, except from: 



Third, Loans secured exclusively by mortgage of real estate, taxable 
as real estate, situated in the commonwealth, to an amount not exceed- 
ing the assessed value of the mortgaged real estate less the amount of all 
prior mortgages. 

You state the cases of a mortgage note and of an issue of 
mortgage bonds, each secured by real estate situated and 



JAY R. BENTON, ATTORNEY-GENERAL. 41 

taxed in Massachusetts to an amount greater than the 
face of the mortgage plus all prior mortgages, but with the 
addition of an endorsement of another person on the mort- 
gage note or mortgage bonds. You ask whether the fact 
of such endorsement takes the interest out of the exempted 
class for the reason that the loan is not then secured "ex- 
clusively by mortgage of real estate." 

As a general proposition, the term "securities" embraces 
promissory notes. Griggs v. Moors, 168 Mass. 354, 361; 
Jennings v. Davis, 31 Conn. 134; Wagrier v. Scherer, 89 
N. Y. App. Div. 202. Broadly speaking, the obligation of 
another person may be security for a loan, and such obli- 
gation may be created or evidenced as well by endorsement 
of a note given by the person to whom the loan is made as 
by the furnishing of a separate promissory note. On the 
other hand, when we speak of a "secured note" we generally 
mean a note with collateral security, and the endorsement 
of a note by a third person is not collateral security for the 
note. Cf. Boston Railroad Holding Co. v. Commonwealth, 
215 Mass. 493, 497. 

In order to determine the meaning of the words used in 
G. L., c. 62, § 1, (a). Third, reference must be made to the 
statutes as they existed prior to the enactment of the in- 
come tax law as well as to other parts of the present tax 
laws. 

By St. 1881, c. 304, §§ 1-3, provision was made for taxing 
separately as real estate the interest of a mortgagee, and 
by section 6 of the same statute "loans on mortgages of 
real estate, taxable as real estate," except the excess of 
such loans above the assessed value of the mortgaged real 
estate, were exempted from taxation. The chapter is en- 
titled "An Act relieving property from double taxation in 
certain cases," and the object of the statute was to avoid 
double taxation in the cases to which it applied. See Knight 
V. Boston, 159 Mass. 551. The statute was construed to 
apply only to cases where the mortgaged security was 
wholly real estate situated wholly in Massachusetts. Brooks 



42 OPINIONS OF THE ATTORNEY-GENERAL. 

V. West Springfield, 193 Mass. 190, 194. In that case the 
court held that a mortgage which included, besides real 
estate in the Commonwealth, real estate in other States and 
also personal property, did not come within the terms of 
the statute, since the statute granted an exemption only in 
cases where all the security was taxable as real estate in 
Massachusetts, and on provision was made for apportion- 
ment when only a part of the security was so taxable. 

Re-enactments of St. 1881, c. 304, §§ 1-3 and 6, appear 
in P. S., c. 11, §§ 14-16 and 4, R. L., c. 12, §§ 16-18 and 4, 
St. 1909, c. 490, pt. I, §§ 16-18 and 4, and G. L., c. 59, 
§§ 12-14 and 4, respectively. 

The income tax law of 1916 (Gen. St. 1916, c. 269) con- 
tained in section 2 (a), Third, the exemption which is sub- 
stantially re-enacted in G. L., c. 62, § 1 (a). Third. It 
made a change in the previous law, the result of which was 
that in cases where interest was not taxable loans were 
exempt from taxation, as before, if they were secured by 
mortgage of real estate, taxable as real estate, within the 
interpretation of those words as given in Brooks v. West 
Springfield, while in cases where the interest was taxable 
the exemption was governed by the provision of the clause 
under consideration. The purpose of this clause clearly 
was to continue and make applicable to interest from loans 
the same exemption of which the loans themselves had 
previously had the benefit. In passing, it should be noted 
that in the report of the special commission appointed by 
Res. 1915, c. 134, the clause read, — "3. Loans on mort- 
gages of taxable real estate situated within this common- 
wealth to an amount not exceeding the assessed value of the 
mortgaged real estate," and that in the report of the House 
Committee on Taxation (House Document, No. 2073) the 
clause was changed to read, — "Third: Loans secured ex- 
clusively by mortgages of real estate, taxable as real estate, 
situated within the commonwealth, to an amount not ex- 
ceeding the assessed value of the mortgaged real estate." 

Under the provision exempting from taxation loans secured 



JAY R. BENTON, ATTORNEY-GENERAL. 43 

by mortgage of real estate, taxable as real estate, it was held 
in Brooks v. West Springfield, as stated above, that the 
mortgaged property must consist of real estate exclusively, 
and that the real estate must lie wholly in the Common- 
wealth. The ground of the decision was that the statute 
in terms applied only to domestic real estate, and that the 
Legislature had not provided for an apportionment when 
other property was included in the mortgage. The words 
"loan on mortgage of real estate, taxable as real estate" are 
readily susceptible of the interpretation that the mortgaged 
property shall consist of real estate alone, and that it must 
be taxable as such in Massachusetts, but they do not justify 
a construction which would make them inapplicable to loans 
on mortgages exclusively of Massachusetts real estate, where 
the mortgage note is endorsed by a third person, and there 
is no suggestion in Brooks v. M^est Springfield or any other 
case that such an implication should be made. To exclude 
such loans from the exemption would be to impose double 
taxation in the very cases which the statute was intended 
to provide for. 

The provision in G. L., c. 62, § 1 (a), Third, was evidently, 
as I have said, made for the purpose of giving an exemption 
to interest on loans co-extensive -with the exemption previ- 
ously given to the loans themselves. It is reasonable to 
suppose that the changes in language by the insertion of 
the word "exclusively" and the addition of the words 
"situated in the commonwealth" were for the purpose of 
expressing in the statute the result of the decision in Brooks 
V. West Springfield, the word "exclusively" being intended 
to exclude cases where the mortgage covered other property 
as well as real estate, and the phrase "situated in the com- 
monwealth" to confine the exemption to cases where the 
real estate was wholly in Massachusetts. In other words, 
it seems probable that what the Legislature intended would 
be more precisely expressed by changing the location of the 
word "exclusively" so that the phrase would be "loans 
secured by mortgage exclusively of real estate, taxable as 



44 



OPINIONS OF THE ATTORNEY-GENERAL. 



real estate, situated in the commonwealth/' etc. In view 
of the manifest purpose for which the statute was passed, 
it is my opinion that the clause should be construed in the 
way which I have indicated, and that each of the two cases 
you have stated comes within the exemption. 



Constitutional Law — Attorney General 

OF THE Bar. 



Member 



The office of attorney general is recognized by, and provided for in, the Constitution. 

It is not within the province of the Legislature to add to or subtract from the 
qualifications for the office of attorney general required by the Constitution. 

The qualifications for the office of attorney general established by the Constitu- 
tion need not be established by express provision; they may be implied. 

The Constitution contains the implied qualification that the attorney general 
shall be a member of the bar. 

The Legislature may pass an act which merely expresses what in the Constitution 
is implied. 



To the Joint 
Committee on 
the Judiciary. 

1923 
February 15. 



You request my opinion whether it is within the province 
of the Legislature to pass a law requiring the attorney gen- 
eral to be a member of the bar, or whether an amendment 
to the Constitution would be necessary to bring about that 
result. 

The office of attorney general was not created by the 
Constitution. The first appointment of an attorney general 
in Massachusetts was in 1680. The office was recognized 
as already in existence by I Prov. Laws, 1693-4, c. 3, § 12. 
The office was recognized by c. II, § I, art. IX, of the Con- 
stitution as originally adopted in 1780. By Mass. Const. 
Amend. XVII it was provided that the attornej" general, 
with other State officers, should be elected annually (now 
biennially by Mass. Const. Amend. LXIV). Mass. Const. 
Amend. XVII contains the following provision with respect 
to qualification : — 



No person shall be eligible to either of said offices unless he shall have 
been an inhabitant of this commonwealth five years next preceding his 
election or appointment. 



JAY R. BENTON, ATTORNEY-GENERAL. 45 

By that amendment the tenure of the office is secured and 
its terms defined. At least since the adoption of Mass. 
Const. Amend. XVII, therefore, the office of attorney general 
is an office provided for in the Constitution, whose tenure, 
mode of election and qualifications are prescribed by the 
Constitution. 

Where the tenure, the mode of election or appointment, 
and qualifications of an office are prescribed by the Consti- 
tution, the Legislature cannot change them unless the Con- 
stitution gives the Legislature authority to do so. Tajt v. 
Adams, 3 Gray, 126, 130; Kinneen v. Wells, 144 Mass. 497; 
Graham v. Roberts, 200 Mass. 152, 157; Attorney General 
V. Tufts, 239 Mass. 458, 480; Attorneij General v. Pelletier, 
240 Mass. 264; Opinion of the Justices, 165 Mass. 599, 601; 
Opinion of the Justices, 240 Mass. 611, 614. 

The Constitution does not give the Legislature authority 
to make such changes with respect to the office of attorney 
general. Since 1780 the powers and duties of the office 
have been declared and defined to some extent by statute 
(see G. L., c. 12, §§ 1-11). But the authority so to act is 
not to be confused with authority to make changes in the 
quahfications for office. 

Article IX of the Declaration of Rights provides : — 

All elections ought to be free; and all the inhabitants of this common- 
wealth, having such qualifications as they shall establish by their frame 
of government, have an equal right to elect officers, and to be elected, 
for public emplojonents. 

This article in substance declares that the right of electors 
and of persons to be elected for public office shall be limited 
only by such qualifications as are prescribed in the Consti- 
tution. Brown v. Russell, 166 Mass. 14, 21; Opinion of 
the Justices, 160 Mass. 586. It applies to the office of 
attorney general, since the qualifications of that office are 
established by the frame of government. 

I am therefore of the opinion that it is not within the 
province of the Legislature to pass any law which would 



46 OPINIONS OF THE ATTORNEY-GENERAL. 

add to or subtract from the qualifications for the office of 
attorney general required by the Constitution. 

It is necessary now to consider whether the Constitution 
requires that the attorney general shall be a member of the 
bar. 

Qualifications for office established by the Constitution 
need not be established by express provision; they may be 
implied. Striking instances of such implication are found 
in Opinion of the Justices, 107 Mass. 604, and Opinion of 
the Justices, 165 Mass. 599, where the court held, regarding 
justices of the peace and notaries public, respectively, that 
the Constitution implied a qualification that the incumbent 
be a man, and precluded the appointment of a woman to 
the office. 

In the former case the justices said: — 

By the Constitution of the Commonwealth, the office of justice of the 
peace is a judicial office and must be exercised by the officer in person, 
and a woman, whether married or unmarried, cannot be appointed to 
such an office. The law of Massachusetts at the time of the adoption 
of the Constitution, the whole frame and purport of the instrument itself, 
and the universal understanding and unbroken practical construction for 
the greater part of a century afterwards, all support this conclusion, and 
are inconsistent with any other. It follows that, if a woman should be 
formally appointed and commissioned as a justice of the peace, she would 
have no constitutional or legal authority to exercise any of the functions 
appertaining to that office. 

In the latter case the court gave the opinion that it was 
not within the constitutional power of the Legislature to 
authorize the appointment of women as notaries public. 
In the course of the opinion the justices said : — 

The Constitution did not create the office of notary public. It was 
an office known to the Roman law, and has existed in all or nearly all 
Christian countries for many centuries. The duties of the office in this 
Commonwealth are in part prescribed by statute, and in part are such as 
by usage notaries public for a long time have been accustomed to perform, 
and the international character and relations of notaries public are im- 
portant. . . . 



JAY R. BENTON, ATTORNEY-GENERAL. 47 

. . . The question in every case is of the meaning of the Constitution, 
and in determining this, the history and nature of the particular office and 
the usages of this and other States and countries with regard to the office at 
the time of the adoption of the Constitution must he considered. . . . 

Where an office is created by statute, the tenure, the mode of appoint- 
ment, the qualifications required, the duties of the office, and the com- 
pensation, are wholly within the control of the Legislature, unless there 
is some limitation put upon the Legislature by the Constitution; and the 
statute creating the office may be altered or repealed by the Legislature 
at any time. But if the tenure of an office and the mode of appointment 
are prescribed by the Constitution, the Legislature cannot change them, 
unless the Constitution gives the Legislature authority to do so. If the 
quaUfications for the office are prescribed by the Constitution, the Legis- 
lature cannot change them. If the qualifications are not prescribed by 
the Constitution, although the tenure and mode of appointment are, 
there has been some question whether the Legislature can prescribe the 
qualifications, but the solution of this question in any particular case 
depends upon the construction of the particular clauses of the Consti- 
tution involved, as well as of the whole frame and purport of the Con- 
stitution. . . . 

... It was the nature of the office of justice of the peace, and the 
usage that allways had prevailed in making appointments to that office, 
that led the Justices to advise that it could not have been the intention 
of the Constitution that women should be appointed justices of the 
peace. 107 Mass. 604. In our opinion, the same considerations apply 
to the office of notary public. 

The same considerations apply even more strongly to the 
question you have submitted, as will appear from an ex- 
amination of the history and nature of the offices of attor- 
ney and attorney general, in Massachusetts and elsewhere, 
and the usages with regard to them in 1780. 

Charles Warren, in his "History of the American Bar," 
gives the following information as to the development and 
significance of the title of "attorney" in Massachusetts dur- 
ing the colonial period. 

As early as 1649 there existed "attorneys" of some kind 
in the Massachusetts Bay Colony, for they are mentioned 
in the records of the General Court for that year. They 
probably appeared by special powers. 

In 1686 the Superior Court was created under the new 



48 OPINIONS OF THE ATTORNEY-GENERAL. 

Governor, Sir Edmund Andros, and attorneys were obliged, 
upon admission to the bar, to take oath. 

In 1701 the practice of the law became first dignified as a 
regular profession through the requirement by statute of 
an oath for all attorneys admitted by the courts. By this 
oath, since the time of Lord Holt, the attorney was pledged 
to conduct himself "in the office of an attorney within the 
courts" according to the best of his knowledge and discre- 
tion, and with all good fidelity, as well to the courts as to 
his clients. Robinson's Case, 131 Mass. 376, 379. 

At first no special qualifications and no definite term of 
study appear to have been required for admission to the 
bar; but in 17G1 the bar prescribed a term of seven years' 
probation — three of preliminary study, two of practice as 
attorney in the Inferior Court, and two of practice as at- 
torney in the Superior Court. 

In 1781 the first order relating to lawyers, made by the 
court after Massachusetts became a State, dealt with the 
method of creating barristers from among the practicing 
attorneys. 

In 1806 the Supreme Judicial Court adopted the follow- 
ing rule : 

Ordered — First, no attorney shall do the business of a counsellor un- 
less he shall have been made or admitted as such by the Court. 

Second, all attorneys of this Court who have been admitted three years 
before the sitting of this Court shall be and hereby are made counsellors 
and are entitled to all the rights and privileges of such. 

Tlurd, no attorney or counsellor shall hereafter be admitted without 
a previous examination. 

In short, at the time of the use of the term "attorney 
general" in the Constitution of Massachusetts, in 1780, the 
word "attorney" had come to have a specific and well- 
recognized meaning. Whether we examine the history of 
England or that of our own colonial period, we find that the 
word signified a man entitled to engage in the practice of 
law before the courts — in other words, a "member of the 



JAY K. BENTON, ATTORNEY-GENERAL. 49 

bar"; and that admission to the bar, for a long time prior 
to 1780, entailed a formal presentation of the candidate, 
the administering of an oath, and compliance with certain 
educational requirements. 

Likewise by 1780 the phrase "attorney general" had come 
to designate the incumbent of a public office which possessed 
well-recognized characteristics. The office of attornej^ 
general is of ancient origin, and its powers and duties were 
defined and prescribed by the common law. Common- 
wealth V. Kozlowsky, 238 Mass. 379, 385; State v. Ehrlick, 
65 W. Va. 700, 702. In England the attorney general was 
the chief legal representative of the crown, and the official 
head of the bar. 3 Bl. Com. 26, 27; 13 111. Law Rev. 602. 
In Massachusetts, in colonial times, the attorney general 
was the chief law officer of the province, and his powers and 
duties were largely such as attached to it at common law. 
Commonwealth v. Kozlowsky, 238 Mass. 379, 385, 386; 
VI Op. Atty. Gen. 138. So far as it has been possible to 
ascertain, every provincial attorney general, from Anthony 
Checkley in 1680 to Robert Treat Paine, the last of the 
provincial attorneys general, appears to have been, prior 
to his elevation to that office, an "attorney" qualified to 
practice in the provincial courts. 

The phrase "attorney general" in Mass. Const., c. II, 
§ I, art. IX, must be taken to have been used in its natural, 
long-established sense; and to include within itself those 
same incidents, characteristics and qualifications which the 
phrase imported at common law. 

This construction is supported not only by history and 
usage, but by direct implication from the use of the word 
"attorney" in the title of the office. The attorney general, 
as the name of his office implies, is the chief law officer of 
the Commonwealth. VI Op. Atty. Gen. 138; Dear- 
horn v. Ames, 8 Gray, 1, 15; State v. Robinson, 101 Minn. 
277, 288. The qualification that he should be a member of 
the bar is inherent in the office and required by the duties 
which he has to perform. 



50 OPINIONS OF THE ATTOKNEY-GENERAL. 

In Opinion of the Justices, 240 Mass. 611, 614, the court 
stated their opinion that a bill providing that the several 
district attornej^s should be members of the bar of the Com- 
monwealth, if enacted, would be constitutional. This 
opinion contains a strong intimation, applicable as well to 
the office of attorney general, that the use of the word 
"attorney" in the title of the office establishes an implied 
(jualification that the incumbent must be a member of the 
bar. On this point the court said: — 

There is a considerable body of authority which holds that the use 
of the word "attorney" in the title of the office carries with it the mean- 
ing that tiie incumbent must be a member of the bar. It has been said 
that "To be a district attorney, he must be a lawyer. He is not an attor- 
ney in fact. He must be an attorney at law. The name of the officer 
implies it. He is the attorney of the state in a certain district, to dis- 
tinguish him from an attorney general." State v. Russell, 83 Wis. 330, 
332, 333. People v. Maij, 3 Mich. 598. Enge v. Cass, 28 No. Dak. 219. 
Danforth v. Egan, 23 So. Dak. 43. 

It is therefore my opinion that the Constitution itself 
contains the implied qualification that the attorney general 
must be a member of the bar, and that an amendment to 
the Constitution would not be necessary to fix such qualifi- 
cation. 

I have not as yet directly answered your question whether 
it is within the province of the Legislature to pass a law re- 
quiring the attorney general to be a member of the bar. I 
have stated that in my opinion the Constitution itself con- 
tains such a requirement. 

By the Constitution (c. I, § I, art. IV) the Legislature is 
given full power to make all manner of wholesome and rea- 
sonable laws not repugnant or contrary to the Constitution, 
and to set forth the duties, powers and limits of the several 
civil and military officers of the Commonwealth, not repug- 
nant or contrary to the Constitution. The legislative 
branch of the government is the repository of legislative 
power, and may make any law whatever, except in so far 



JAY R. BENTON, ATTORNEY-GENERAL. 51 

as it is restrained by the provisions of the Constitution 
(where no question is involved concerning the exercise of 
powers granted to the Federal government by the Constitu- 
tion of the United States). Stoughton v. Baker, 4 Mass. 
522, 529; Commonwealth v. Alger, 7 Cush. 53, 101. The law 
proposed clearly would not be repugnant or contrary to 
the Constitution but, as I have shown, would be in exact 
accordance with its provisions. It is true, as the court has 
stated, that 'Vhere qualifications of voters or officers are 
fixed by the Constitution the Legislature cannot add to or 
subtract from them." Opinion of the Justices, 240 Mass. 
611, 614; Kinneen v. Wells, 144 Mass. 497. But this rule 
is not applicable to a legislative act which does not add to 
or subtract from a constitutional requirement, but merely 
expresses what in the Constitution is implied. So in Opin- 
ion of the Justices, 240 Mass. 601, the court gave their 
opinion that it would be constitutionally competent for the 
General Court to enact legislation declaring women eligible 
to hold any public office within the Commonwealth, al- 
though such legislation would apply to offices the qualifica- 
tions for which are determined by the Constitution. I see 
nothing in the proposed act inconsistent with article XXX 
of the Declaration of Rights. 

Accordingly, it is my opinion, and I advise you, that the 
proposed legislation, if enacted, would not be unconstitu- 
tional, and that therefore it is within the province of the 
Legislature to pass such a law. 



52 



OPINIONS OF THE ATTORNEY-GENERAL. 



Constitutional Law — Interstate Commerce — Cor- 
respondence School — Agency. 

An institution chartered under the laws of a foreign State may come into Massa- 
chusetts for the purpose of enrolling students here fctr instruction by corre- 
spondence, and may grant such degree as it is authorized to grant under the 
laws of the State from which it receives its charter; and accordingly a State 
statute which makes it a condition precedent to a foreign corporation engaging 
in this branch of interstate commerce to obtain what practically amounts to 
a license to transact such business is unconstitutional, as a burden and re- 
striction upon interstate commerce. But personal instruction within the 
confines of this Commonwealth by a resident agent of such foreign corporation 
is not interstate commerce, and is accordingly within the prohibition contained 
in G. L., c. 266, § 89. 

A resident agent of a foreign correspondence school, who by advertisement holds 
himself out as empowered to grant a degree, violates G. L., c. 266, § 89. 



To the Com- 
missioner of 
Education. 

1923 
February 23. 



You request my opinion on the following questions : — 

It appears that a certain correspondence school, named 
the American Extension University, has been advertising 
the fact that a degree is awarded on completion of the pre- 
scribed course. Is this action on the part of this school a 
violation of G. L., c. 266, § 89? 

Under what conditions can an institution chartered under 
the laws of a foreign State come into Massachusetts for the 
purpose of enrolling students here, either for personal in- 
struction within the confines of this State or for instruction 
by correspondence, and thus grant a degree for the com- 
pletion of the required course of study? 

Can the American Extension University be held respon- 
sible for the acts of its alleged agent here? 

Can its alleged agent here hold himself out as empowered 
to grant a degree without mentioning the name of the in- 
stitution chartered to grant degrees? 

The statutory provisions governing correspondence schools 
are contained in G. L., c. 93, §§ 19-23, inclusive. Section 
22 prescribes as follows : — 



The department of education may establish rules and regulations gov- 
erning correspondence schools. 



JAY R. BENTON, ATTORNEY-GENERAL. 53 

Section 23 provides: — 

Whoever violates any provision of law relating to correspondence 
schools for which no penalty is provided, or of sections twenty and twenty- 
one or of any rule or regulation estabUshed under section twenty-two, shall 
be punished by a fine of not more than five hundred dollars. 

Under the authority conferred by section 22, the Depart- 
ment of Education formulated and published certain rules 
and regulations, among which is the following : — 

Every person, firm, association or corporation doing business in this 
Commonwealth as a correspondence school shall report to the Depart- 
ment of Education, on or before August thirty-first of each year, on blanks 
to be obtained from the Department on request, the following facts: — 

1. Name of the school, and of organization conducting the same. 

2. Headquarters. (Give address, whether outside or inside of Massa- 
chusetts.) 

3. Management of the school, whether by individual, co-partnership 
or corporation. 

4. Names of officers and directors. . . . 

5. Location and designation of offices, if any, in Massachusetts. 

6. Name and address of resident agent or representative, if any, in 
Massachusetts. 

7. List of correspondence courses advertised and offered in Massa- 
chusetts . . . with copies of advertisements inserted in magazines or 
newspapers published or circulated in Massachusetts. 

8. Number of persons enrolled in each course or separately offered part 
thereof, in Massachusetts, for the twelve months prior to July 1st pre- 
ceding the date of this report (but if the business year of the school closes 
at some other date, then for the last business year) .... 

9. Number of persons receiving certificates or other evidence as to 
completion of courses or separate parts thereof, during the twelve months 
prior to July 1 preceding the date of this report, or for the last business 
year. . . . 

10. Brief description of samples of advertising literature circulated in 
Massachusetts (other than appearing in newspapers and magazines) , filed 
with this report. 

Date of this report. Name, office, and address of person making this 
report. 

In accordance with this rule, a report was filed on De- 
cember 9, 1922, signed "Ralph Culver Bennett, 472 Boyl- 



54 OPINIONS OF THE ATTORNEY-GENERAL. 

ston Street, Boston, Massachusetts. Telephone Back Bay 
7598," in which it appears that the American Extension 
University is a corporation chartered under the laws of 
California, with headquarters in the Stimson Building, Los 
Angeles, California, its office in Massachusetts being at 
472 Boylston Street, Boston, Mass., and its resident agent 
or representative in Massachusetts being Professor Ralph 
Culver Bennett, D.C.L., LL.D. Said report also states 
that the only advertisement used is the one set forth in 
full in the answer to question No. 7, as follows: — 

Solely a Law Course. 

Only advertisement used is as follows: 

"Law professor, D.C.L. Yale, has complete law correspondence course. 
Anyone may enroll. No books required. Time payments. Invaluable 
business training, complete Bar preparation, and degree. Consult Pro- 
fessor R. C. Bennett, D.C.L., LL.D., 472 Boylston St., Boston. Tele- 
phone Back Bay 7598." 

You state that this advertisement has appeared in street 
cars. 

It also appears that in answer to question No. 8 of the 
report required of correspondence schools, supra, the fol- 
lowing reply was given : — 

Have been located here in Boston only since September 1, 1922. 

Since that date I have enrolled four (4) students in Massachusetts, 
(only four) and in Law — the only course given by the American Exten- 
sion University. However, 21 are now studying law in Massachusetts 
under my direction. I am an attorney-at-law of Illinois and of Texas. 
Have been a teacher and professor of law and am ex-Asst. State's Attorney 
for Cook County, Illinois. 

G. L., c. 266, § 89, prescribes as follows: — 

Whoever, in a book, pamphlet, circular, advertisement or advertising 
sign, or by a pretended written certificate or diploma, or otherwise in 
writing, knowingly and falsely pretends to have been an officer or teacher, 
or to be a graduate or to hold any degree, of a college or other educational 
institution of this commonwealth or elsewhere, which is authorized to 
grant degrees, or of a public school of this commonwealth, and whoever. 



1 



JAY R. BENTON, ATTORNEY-GENERAL. 55 

without the authority of a special act of the general court granting the 
power to give degrees, offers or grants degrees as a school, college or as a 
private individual, alone or associated with others, shall be punished by a 
fine of not more than one thousand dollars or by imprisonment for not 
more than one year, or both. Any individual, school, association, cor- 
jioration or institution of learning, not having power to confer degrees 
under a special act of the general court, using the designation of "univer- 
sit}'^" or "college" shall be punished by a fine of one thousand dollars; 
but this shall not apply to any educational institution whose name on 
July ninth, nineteen hundred and nineteen, included the word "univer- 
sity" or "college." 

A literal interpretation of this statute would seem to 
forbid any individual, school, association, corporation or 
institution of learning not having the power to confer de- 
grees under a special act of the General Court of this Com- 
monwealth from offering or granting degrees as a school, 
college or private individual, and would also seem by its 
terms to prohibit the use of the designation of "university" 
or "college" by any individual, school, association, corpora- 
tion or institution of learning not having the power to con- 
fer degrees under a special act of the General Court. It 
appears from the report filed by the agent of the American 
Extension University, supra, that the university is a cor- 
poration chartered under the laws of the State of California, 
and, although the power to grant degrees is not referred to 
therein, nevertheless, in the booklet apparently prepared 
by said university and distributed through its agent, appears 
the following statement on page 1 : — 

The American Extension University is chartered under the laws of the 
State of California, as an educational institution, and is authorized to 
give instruction either to resident students or by correspondence, and to 
confer all appropriate honors and degrees. 

The Extension Law Department of the University gives a complete 
course in law by correspondence, leading to the degree of bachelor of laws, 
— LL.B. 

The Supreme Court of the United States has decided, in 
the case of International Textbook Co. v. Pigg, 217 U. S. 91, 



56 OPINIONS OF THE ATTORNEY-GENERAL. 

that intercourse or communication between persons in dif- 
ferent States, through the mails and otherwise, and relat- 
ing to matters of regular, continuous business, such as 
teaching by correspondence, and the making of contracts 
relating to the transportation thereof, is commerce among 
the States, within the commerce clause of the Federal Con- 
stitution, and accordingly a State statute which makes it a 
condition precedent to a foreign corporation engaging in 
this legitimate branch of interstate commerce to obtain 
what practically amounts to a Ucense to transact such busi- 
ness is a burden and restriction upon interstate commerce, 
and as such is unconstitutional. 

I am accordingly of the opinion that an institution char- 
tered under the laws of a foreign State may come into Massa- 
chusetts for the purpose of enrolling students here for in- 
struction by correspondence, and may grant such degree as 
it is authorized to grant, under the laws of the State from 
which it receives its charter, for the completion of the re- 
quired course of study; but I am also of the opinion that 
personal instruction within the confines of this State by a 
resident agent does not come within the principle laid down 
in the case of International Textbook Co. v. Pigg, supra, and 
accordingly is within the prohibition contained in G. L., 
c. 266, § 89. 

As to how far the American Extension University may 
be held responsible for the acts of its alleged agent here, it 
would seem that the ordinary principles of the law of agency 
would apply, namely, that for any act committed by such 
agent within the actual or ostensible scope of his employ- 
ment the principal could be held liable. Inasmuch as the 
advertisement appearing in the answer to question No. 7 
of the report of correspondence schools, supra, does not 
mention the American Extension University, and the answer 
to question No. 8 of said report sets forth that four students 
in Massachusetts have been registered in the course, while 
twenty-one are studying law in Massachusetts under the 
direction of the aforesaid agent, I am of the opinion that 



JAY R. BENTON, ATTORNEY-GENERAL. 57 

this method of advertising constitutes a violation of G. L., 
c. 266, § 89, inasmuch as it cannot be questioned but that 
the information conveyed to the average reader by said 
advertisement would entitle such reader to consider that 
said alleged agent holds himself out as empowered to grant 
a degree, which would be a violation of the statute. 

In the case of Commonwealth v. New England College of 
Chiropractic, 221 Mass. 190, in construing the statute under 
consideration, the court says : — 

Its obvious purpose is to suppress the kind of deceit which arises from 
the pretence of power to grant academic degrees, and to protect the pub- 
lic from the evils likely to flow from that variety of misrepresentation and 
imposition. ... It aims to ensure to the people of the Commonwealth 
freedom from deception, when dealing with those who put forward pro- 
fessions of educational achievement such as ordinarily is accompanied 
by a collegiate degree from an institution authorized to grant it and to 
make certain that those who use such symbols have had the opportunity 
of being trained according to prevailing standards in some school of 
recognized standing, under teachers of reputation for learning. . . . 

The statute should be interpreted in the light of its design to effectuate 
its purpose so far as the words used reasonably construed permit of this 
result. 



Eminent Domain — Notice of Taking to Parties in 
Interest — Confirmatory Deed. 

Where land is taken by the Commonwealth by eminent domain, it is the duty of 
the board of officers who have made the taking to use reasonable diligence 
to ascertain the owners of the land taken, and to give notice of such taking 
to each and every owner thus ascertained. 

Failure on the part of such board of officers to give the required notice to owners 
of land taken by eminent domain does not invalidate a taking. 

A confirmatory deed given by the owner of land taken by eminent domain should 
include, among other requisites, a warranty to the extent of the amount of 
the award, and a provision that it is in confirmation, and not in derogation, 
of the rights acquired. 

You request my opinion on certain questions arising from '^9 ^^^ ^om- 

i- -^ ^ ^ o missioner of 

the taking or contemplated taking by your department of conservation. 
what you term "low value land," and I shall answer each F«bniary24. 
inquiry in order. 



58 OPINIONS OF THE ATTORNEY-GENERAL. 

1. How far must this department proceed in attempting to find out 
the ownership of lands taken, and in determining the status of the title 
of parties known to have an interest in the land taken or who claim to 
have an interest? 

So far as your duty under the law is concerned, it is set 
forth in G. L., c. 79, § 8, which reads, in part, as follows: — 

Immediately after the right to damages becomes vested, the board of 
officers who have made a taking under this chapter shall give notice 
thereof to every person whose property has been taken or who is other- 
wise entitled to damages on account of such taking. 

It is apparent, therefore, that it is your duty to use reason- 
able diligence to ascertain the owners of the land taken, and 
it might well be that information from the local assessors 
would be sufficient, as they, presumably, keep themselves 
informed on matters of such ownership. Where, however, 
there is a question of ownership, and conflicting claims, to 
the knowledge of your department, it is your duty to have 
such search of title made as will in each case justify the 
award you make. 

2. Is it encumbent upon this department to notify each and every 
owner of land taken, when such owners are known? 

To that question my answer is *'Yes." See Wright v. 
Lyons, 224 Mass. 167. 

3. After a taking has been made, is a release from an owner to the 
Commonwealth sufficient or is a warranty deed essential in clearing in- 
terior holdings? 

To that question I reply that the ordinary release is in- 
sufficient, but that the deed taken should include, among its 
other requisites, a warranty to the extent of the amount of 
the award and a provision that it is in confirmation, and not 
in derogation, of the rights acquired by the taking. 



JAY R. BENTON, ATTORNEY-GENERAL. 59 

4. After a taking has been placed on record, in compliance with the 
provisions of the act above mentioned, how long a period of time must 
elapse before this department can absolutely be assured that its plans 
for development of the lands taken cannot be affected in any way by 
claims of any nature by any partj' or parties who might consider their 
interests or possible interests affected by said takings? 

In this connection, I call to your attention again G. L., 
c. 79, § 8, particularly the last line thereof, which says: — 

Failure to give notice shall not affect the validity of the proceedings, 
or the time within which a petition for damages may be filed, except as 
provided by section sixteen. 

Section 16 is as follows: — 

A petition for the assessment of damages under section fourteen may 
be filed within one year after the right to such damages has vested; but 
any person whose property has been taken or injured, and who has not 
received notice under section eight or otherwise of the proceedings where- 
by he is entitled to damages at least sixty days before the expiration of 
such year, may file such petition within six months from the time when 
possession of his property has been taken or he has otherwise suffered 
actual injury in his property. 

I therefore advise you that anyone who is entitled to notice, 
but who has received none, may not bring action to question 
the validity of the taking, but is left to such remedy as is 
afforded by section 16, and must bring his action within 
the time fixed by that section. As G. L., c. 79, § 12, pro- 
vides, in part, that ''the damages for property taken under 
this chapter shall be fixed at the value thereof before the 
taking," such a claimant, even if he established his claim, 
might not claim the value of the land as enhanced by any 
improvements made by the Commonwealth. 



60 opinions of the attorney-general. 

Constitutional Law — Criminal Cases — Burden of 

Proof. 

An act which provides, in substance, that after some material facts have been 
established in criminal cases, the burden of proof with respect to certain essen- 
tial facta may, under certain circumstances, be placed upon the defendant, 
is constitutional. 

Govi'rnor. Yoli Tcquest me to consider House Bill No. 1120, entitled 

February 2(i. ' 'An Act lelative to the burden of proof in prosecutions for 
certain violations of the laws relative to hunting and trap- 
ping by aliens." 

The proposed bill amends G. L., c. 131, § IG, so that said 
section shall read as follows : — 

No unnaturalized foreign born person who has resided within the com- 
monwealth for ten consecutive days, who does not own real estate in the 
commonwealth to the value of five hundred dollars or more, shall hunt, 
capture or kill any wild bird or animal of any description, excepting in 
defence of the person, and no such person shall, within the commonwealth, 
own or have in his possession or under his control a shotgun or rifle; any 
shotgun or rifle owned by him or in his possession or under his control 
shall be forfeited to the commonwealth. Violations of this section shall 
be punished by a fine of fifty dollars or by imprisonment for not more 
than one month, or both. If, in any prosecution for violation of this 
section, the defendant alleges that he has been naturalized or that he 
owns real estate in the commonwealth to the value of five hundred dollars 
or more, the burden of proving the same shall be upon him. 

The bill thus places upon the defendant, after the Com- 
monwealth has established certain material facts, the bur- 
den of proving that he has been naturalized or that he owns 
real estate in the Commonwealth to the value of $500. 
These are matters which relate to him personally, and which 
are exceedingly difficult and, in many cases, impossible for 
the State to prove. 

Where the subject-matter of a negative averment in the indictment, or 
a fact relied upon by defendant as a justification or excuse, relates to him 
personally or otherwise lies peculiarly Avithin his knowledge, the general 
rule is that the burden of proof as to such averment or fact is on him. 
(12 Cyc. 381, 382.) 



JAY R. BENTON, ATTORNEY-GENERAL. 61 

In Commonwealth v. Williams, 6 Gray, 1, 5, the court 
said : — 

It is no new thing in the history or administration of the law, that 
pecuUar and artificial force is given or attributed to particular facts, or 
series of facts, as means and instruments of legal proof. This may be 
seen in many of the rules of evidence which prevail by the common law, 
and in others which derive their force from legislative acts. These then 
are conclusive presumptions, which, from motives of public policy, or 
for the sake of greater certainty, or for the promotion of the peace and 
quiet of the community, have been adopted by common consent. Some- 
times the common consent, by which this class of presumptions is estab- 
lished, is declared through the medium of the judicial tribunals, and thus 
becomes a part of the common law of the land. And sometimes it is 
expressly declared by the direct authority of the Legislature in statutes 
duly enacted. 

See, also, Duggan v. Bay State Street Ry. Co., 230 Mass. 
370, 380. 

In Holmes v. Hunt, 122 Mass. 505, 517, the court said: — 

The statutes of this Commonwealth have imposed upon the defendant 
in criminal prosecutions the burden of proving any license, appointment 
or authority, relied on as a justification, which the Commonwealth, but 
for these statutes, would have been obliged to disprove. 

Such statutes have been held to be constitutional. Holmes 
V. Hunt, supra; Commonwealth v. Williams, 6 Gray, 1; 
Commonwealth v. Lahy, 8 Gray, 459; Commonwealth v. 
Carpenter, 100 Mass. 204; Commonwealth v. Anselvich, 186 
Mass. 376, 378; Duggan v. Bay State Street Ry. Co., 230 
Mass. 370, 380. 

As early as 1793 statutes were enacted in this Common- 
wealth providing that the proof of certain facts be treated 
as presumptive evidence of guilt, and placing the burden 
of proof on the defendant to discharge himself. St. 1793, 
c. 42, § 6. See also St. 1833, c. 148, § 3; St. 1844, c. 102, 
§ 1; St. 1849, c. 158, § 1. 

Thus the history of both legislative and judicial decisions 
in this Commonwealth shows that under certain circum- 



62 



OPINIONS OF THE ATTORNEY-GENERAL. 



stances, after some material facts have been established, 
the burden of proof with respect to certain essential facts 
may be placed upon the defendant. It is not necessary, for 
the purposes of this opinion, to consider the limitation upon 
the power of the Legislature so to act. 

I am therefore of the opinion that the proposed bill, if 
enacted, would be constitutional. 



Constitutional Law — "Anti-aid" Amendment — 
Playgrounds — Lease of Park Lands by City. 

l^egislation designed or framed to accomplish the ultimate object of placing prop- 
erty in the hands of one or more private persons after it has been taken bj' 
the superior power of the government from another private person, avowedly 
for a public purpose, is unconstitutional. 

The Legislature may authorize the sale or lease of land held for a public purpose 
when the public purpose designed has been completely accomplished, or when 
through lapse of time or changed conditions continued ownership of the land 
by the public agency is no longer necessary or needed. 

Land of a city or town held strictly for public uses as a park, and not subject to 
the terms of any gift, devise, grant, bequest or other trust or condition, is 
under the control of the General Court, which may transfer it to some other 
agency of government or devote it to some other public use. 

Whether a statute appropriates property to a public use or to a private use is a 
judicial question, upon which the constitutionality of the act depends. 

The advisability, necessity or expediency of passing legislation is a matter solely 
for the determination of the Legislature. 



To the House 
Committee on 
Cities. 

1923 
March 12. 



You request my opinion as to the constitutionality of 
House BillJNo. 1126, entitled "An Act to enable the city 
of Melrose to improve and adapt certain of its undeveloped 
park lands located on Lynn Fells Parkway and Tremont 
Street|to the purpose for which they were acquired by said 
city." 

Said bill reads as follows : — 



Section 1. The city of Melrose is hereby authorized by and with 
the consent of its park commission to lease at a nominal rental for a term 
of not exceeding ninety-nine years certain of its now undeveloped park 
lands more particularly described in section two of this act to an associa- 
tion or corporation to be organized and maintained by Melrose citizens 
for the purpose of improving said park lands by constructing and enclos- 



JAY R. BENTON, ATTORNEY-GENERAL. 63 

ing an athletic field and erecting structures thereon for use in connection 
with athletics. Such association or corporation may rent the same for 
athletic contests and may charge or permit a charge for admission thereto, 
but when not so used shall, subject to reasonable rules and regulations, 
permit the inhabitants of said city to use the same as a playground; it 
may issue bonds or other obligations for the purpose of raising funds for 
such improvement and in all respects, except as herein otherwise pro- 
vided, may control and manage said property during the term of said 
lease and from time to time establish rules and regulations governing 
the use thereof. All profits accruing to said association or corporation 
from the use and management of said property shall be used for the fur- 
ther development and improvement thereof. 

Section 2. The land that may be leased as herein authorized consists 
of about seven acres located north of Lynn Fells parkway and east of 
Tremont street in said city and is more particularly bounded and de- 
scribed as follows: — Beginning at the northeast corner of Lynn Fells 
parkway and Tremont street northerly by Tremont street, six hundred 
and ninety-five feet more or less to land of R. J. Munn and brothers; 
thence easterly on land of said Munn and brothers, land of DeMar and 
by Union street, four hundred and fifteen feet more or less to land now 
or formerly of Conway estate; thence southerly by said land of Conway 
estate three hundred and thirty-eight feet more or less to the southwesterly 
corner of said land of Conway estate and the present park line; thence 
easterly one hundred and five feet more or less on said Conway estate 
land and along said park line to land of William Magner and the line 
of the proposed extension of Ashland street; thence southerly by the 
proposed extension of Ashland street two hundred feet more or less to 
Lynn Fells parkway; thence westerly by Lynn Fells parkway seven 
hundred feet more or less to the point of beginning. 

Section 3. So long as said property is used solely for the purposes 
herein expressed, it shall be exempt from taxation but whenever it shall 
cease to be so used the said leasehold term shall terminate and said land 
shall revert to the city of Melrose and any structures thereon become its 
absolute property. 

Section 4. This act shall take effect upon its acceptance by a vote 
of the board of aldermen of said city within two years from the date of 
its passage and the terms of any lease under the authority hereby granted 
shall be approved by vote of said board. 

It does not appear in what manner this land was acquired 
by the city of Melrose, whether by a taking under the right 
of eminent domain, purchase or gift. I assume, however, 
that said land was acquired and is now held for playground 



64 OPINIONS OF THE ATTORNEY-GENERAL. 

purposes under the provisions of G. L., c. 45, § 14 (R. L., 

c. 28, § 19). 

In Wright v. Walcott, 238 Mass. 432, the court says: — 

Land acquired by a city or town by eminent domain or through ex- 
penditure of public funds, held strictly for public uses as a park and not 
subject to the terms of any gift, devise, grant, bequest or other trust or 
condition, is under the control of the General Court. It may be trans- 
ferred to some other agency of government or devoted to some other 
public use by legislative mandate. The power of the General Court in 
this regard is supreme over that of the city or town. When title in fee 
is acquired in the land by the municipality for such a public use, there is 
no right of reversion to the original owner. He has been divested of 
every vestige of title when he parted with the fee. Higginson v. Treasurer 
& School House Commissioners of Boston, 212 Mass. 583. Stewart v. 
Kansas City, 2.39 U. S. 14, 16. 

Playgrounds acquired and maintained by cities and towns 
are closely analogous in their essential features to parks. 
See Higginson v. Treasurer & School House Commissioners 
of Boston, supra, and cases cited. 

But legislation designed or framed to accomplish the ulti- 
mate object of placing property in the hands of one or more 
private persons after it has been taken by the superior 
power of the government from another private person, , 
avowedly for a public purpose, is unconstitutional. See 
Wright v. Walcott, supra: Salisbury Land & Improvement 
Co. V. Commonwealth, 215 Mass. 371, and cases there re- 
viewed and collected. 

Undoubtedly the Legislature may, under our Constitu- 
tion, authorize the sale or lease of land held for a public I 
purpose when the public purpose designed has been com- 
pletely accomplished, or when through the lapse of time or 
changed conditions continued ownership of the land by the 
public agency is no longer necessary or needed for the pub- i 
lie purpose for which the land was acquired. Chase v. 
Sutton Mfg. Co., 4 Cush. 152; Winnisimmet Co. v. Grueby, 
209 Mass. I; Bancroft v. Ca7nbridge, 126 Mass. 438; Wor- 
den V. New Bedford, 131 Mass. 23; Dingley v. Boston, 100 



JAY R. BENTON, ATTORNEY-GENERAL. 65 

Mass. 544; Davis v. Rockport, 213 Mass. 279; Sweet v. 
Rechel, 159 U. S. 380; Wright v. Walcott, supra, and cases 
cited. So, also, since 1901 there has been a general law in 
this Commonwealth authorizing the abandonment of lands, 
easements and other rights taken by cities and towns other- 
wise than by purchase, upon compliance with certain con- 
ditions set forth in the statute. G. L., c. 40, § 15. The 
omission therein of mention of land acquired by purchase 
or gift is significant. But the apparent design of the bill 
under consideration is to permit the lease for a term not 
exceeding ninety-nine years of the aforesaid undeveloped 
park lands, in order that they may be improved and better 
adapted to the purpose for which they were acquired by the 
city. The power to lease is limited "to an association or 
corporation to be organized and maintained by Melrose 
citizens for the purpose of improving said park lands by 
constructing and enclosing an athletic field and erecting 
structures thereon for use in connection with athletics." 

If this bill works simply a change of control of said park 
land, taking it from one party who holds it for a public use 
and transferring it to another to hold in the same manner 
for precisely the same public use, there may well be a con- 
stitutional objection. To such a situation the case of Cary 
Library v. Bliss, 151 Mass. 364, seems applicable. In that 
case, in holding that a public library held upon a public 
charitable trust of indefinite duration by trustees provided 
by the donor could not be taken by eminent domain and 
transferred to a corporation created to manage it for like 
purposes, the court said: — 

The question arises, whether taking property from one party, who holds 
it for a public use, by another, to hold it in the same manner for precisely 
the same public use, can be authorized under the Constitution. Can 
such a taking be founded on a pubUc necessity? It is unhke taking for 
a pubUc use property which is already devoted to a different public use. 
There may be a necessity for that. In the first case, the property is 
aheady appropriated to a public use as completely in every particular 
as it is to be. Can the taking be found to be for the purpose which must 



66 OPINIONS OF THE ATTORNEY-GENERAL. 

exist to give it validity? In every case it is a judicial question whether 
the taking is of such a nature that it is or may be founded on a public 
necessity. If it is of that nature, it is for the Legislature to say whether 
in a particular case the necessity exists. We are of opinion that the pro- 
ceeding authorized by the statute was in its nature merely a transfer of 
property from one party to another, and not an appropriation of property 
to public use, nor a taking which was, or which could be found by the 
liCgislature to be, a matter of public necessity. West River Bridge v. 
Dix, 6 How. 507. Lake Shore & Michigan Southern Railway v. Chicago 
& Western Indiana Railroad, 97 111. 506. Chicago & Northwestern Rail- 
way V. Chicago dt Evanston Railroad, 112 111. 589. 

See also VI Op. Atty. Gen. 508. It is to be noted, how- 
ever, that the case of Gary Library v. Bliss, supra, involved 
a trust created by will. 

In Wright v. Walcott, supra, the court expressly states 
that land of a city or town held strictly for public uses as 
a park and not subject to the terms of any gift, devise, grant, 
bequest or other trust or condition, is under the control of the 
General Court, which may transfer it to some other agency 
of government or devote it to some other public use. This 
is in accord with the general rule that the public property 
of a city or town does not belong to it in the same absolute 
sense as the property of an individual belongs to him, but 
is held by it, as a subordinate part of the government, for 
public uses, and subject to the authority of the Legislature, 
which may change or authorize a change of the public 
agency of government in charge of it. Higginson v. Treas- 
urer & School House Commissioners of Boston, 212 Mass. 
583, and cases cited; Stone v. Charlestown, 114 Mass. 214; 
Ware v. Fitchburg, 200 Mass. 61, and cases cited. 

The bill under consideration does not involve any taking 
of property either from a private person or from the public. 
There is nothing in the bill which takes away from the city 
its legal title to the land. It merely authorizes the leasing 
of property already owned and held by the city. In this 
respect, also, the case of Gary Library v. Bliss, supra, is 
distinguishable. 

The question whether a statute appropriates property to 



JAY R. BENTON, ATTORNEY-GENERAL. 67 

a public use or to a private use is a judicial one, upon which 
the constitutionality of the act depends. Consequently, 
the determination of the Legislature thereon may be revised 
by the court. But the question as to the advisability, 
necessity or expediency of passing legislation is solely for 
the determination of the Legislature. Boston v. Talbot, 
206 Mass. 82; Moore v. Sanford, 151 Mass. 285; Lowell v. 
Boston, 111 Mass. 454; Opinion of the Justices, 204 Mass. 
607. 

The next question is whether the management of this 
undertaking can constitutionally be vested in the associa- 
tion or corporation to be formed as provided in this bill, 
in view of the so-called "anti-aid amendment" (Mass. 
Const., Amend. XLVI). The second section of said amend- 
ment provides, in part : — 

. . . and no grant, appropriation or use of public money or property 
or loan of public credit shall be made or authorized by the commonwealth 
or any poUtical division thereof for the purpose of founding, maintaining 
or aiding any school or institution of learning whether under public con- 
trol 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 publicly 
owned and under the exclusive control, order and superintendence of 
public officers or public agents authorized by the commonwealth or 
federal authority or both. . . . 

The plain intent of this amendment is to require that the 
expenditure of public money for any educational, charitable 
or religious undertaking which possesses the requisite public 
character shall be under exclusive public control. 

In deciding this question it is to be observed that although 
said association or corporation may rent the premises "for 
athletic contests and may charge or permit a charge for 
admission thereto," it is significant that it is authorized to 
issue bonds or other obligations for the purpose of raising 
funds for improvement, and it is particularly provided that 
"all profits accruing to said association or corporation from 



68 OPINIONS OF THE ATTORNEY-GENERAL. 

the use and management of said property shall be used for 
the further development and improvement thereof." Like- 
wise significant are the provisions for freedom from taxation 
and termination of the lease contained in section 3 of the 
bill. 

It is obvious that said contemplated lessee cannot operate 
for profit; also, that the city of Melrose is not authorized 
to appropriate any money to assist the lessee in its work. 
It would seem that the contemplated undertaking is not 
religious, charitable or educational, within the meaning of 
said constitutional amendment. Accordingly the case is 
dissimilar in all material respects to that upon which the 
Attorney-General rendered an opinion to the committee on 
bills in the third reading. VI Op, Atty. Gen. 117. I am 
therefore of the opinion that the bill does not fall within the 
scope of said amendment. Nor can it be said that the bill 
is unconstitutional because it takes away from the city the 
use or control of public property which had become vested 
in it for a public purpose. Even if the bill had this effect, 
the objection would be cured by the fact that the lease 
therein authorized is subject to the consent of the park 
commissioners of the city of Melrose, the body vested with 
charge and control of parks and playgrounds. The city, 
therefore, could not well complain of a use of its property 
to which it assents through its duly constituted authority. 
See Ware v. Fitchhurg, 200 Mass. 61, and cases cited. 

Your committee is entitled to take into consideration all 
the facts relating to the pending bill in determining whether 
or not the necessity exists for granting the authority therein 
referred to. 

In my opinion the bill, if enacted, would be constitutional. 



jay r. benton, attorney-general. 69 

Constitutional Law — Public Money — Reimburse- 
ment. 

A proposed bill which authorizes the city of Boston to discharge its obligation to 
reimburse a certain company for losses sustained in certain coal deliveries is 
constitutional, inasmuch as the reimbursement is not a gift of the public 
money but is in the nature of compensation for value received by the city. 

You request me to consider Senate Bill No. 31, entitled Governor. 
"An Act authorizing the city of Boston to discharge its MaJch^is. 
obligation to reimburse the D. Doherty Company for losses 
sustained in certain coal deliveries." 

WTiile the bill itself does not definitely disclose the precise 
nature of the obligation referred to therein, I have ascer- 
tained from data submitted to the committee on cities that 
the D. Doherty Company, in order to supply the amount of 
coal to the schools of Boston called for by its contract, was 
obliged to purchase coal from certain sources at an increased 
price, and that the sum set forth in the bill represents the 
difference between the contract price and the replacement 
price; in other words, the actual loss sustained by the D. 
Doherty Company in filling its contract. 

Apparently the D. Doherty Company was under no legal 
obligation to supply this coal or to go on with its contract, 
inasmuch as it was undoubtedly discharged from its obliga- 
tion to make deliveries thereunder by reason of seizures of 
its coal by the Federal government in the exercise of war- 
time powers. 

On these facts, there is an unquestionable moral or equit- 
able right to reimbursement. But, regardless of the moral 
obligation, if the bill in effect authorizes the city of Boston 
to pay out money raised by general taxation gratuitously 
to an individual, although under no legal obligation to do 
so, it is manifestly unconstitutional unless some public pur- 
pose or interest is furthered thereby. 

The Supreme Judicial Court of this Commonwealth has 
rigidly applied the rule that public money can be expended 
only for a public purpose. 



70 OPINIONS OF THE ATTORNEY-GENERAL. 

In Whittaker v. Salem, 216 Mass. 483 (a case in which a 
moral obligation unquestionably existed), the court says: — 

However meritorious the project may appear to be either in its prac- 
tical or ethical or sentimental aspects, if it is in essence a gift to an indi- 
vidual rather than a furthering of the public interest, money raised b}^ 
taxation cannot be appropriated for it. These principles often have been 
declared respecting a great variety of subjects and cannot be doubted. 

To the same effect are Lowell v. Boston, 111 Mass. 454; 
Mead v. Acton, 139 Mass. 341; Kinginan v. Brockton, 153 
Mass. 255; Opinion of the Justices, 204 Mass. 607; ibid., 
211 Mass. 624. 

But on the facts before me it cannot fairly be said that 
the bill under consideration authorizes a gift. Rather, it 
would seem that it authorizes compensation or reimburse- 
ment for value received by the city. 

It has been decided in several cases that towns may vote 
money to indemnify their agents who may incur a liability 
in the performance of their duties, although the towns were 
under no legal obligation to do so. Nelson v. Milford, 
7 Pick. 18; Bancroft v. Lynnfield, 18 Pick. 566. In the case 
of Friend v. Gilbert, 108 Mass. 408, it was decided that a 
town could properly award a sum of money as compensa- 
tion to an individual who had rendered valuable service to 
the town, although no contract existed for such services. 
The court there said : — 

The petitioners contend that the town had no legal relation or connec- 
tion with Watson, and therefore that the payment to him is a gratuity 
or gift. It is true the town had no express contract with him, but they 
had a direct and vital interest in his work and its quality, and we cannot 
regard the proposed payment to him as a mere gratuity. The vote is, 
to pay him five thousand dollars as compensation, that is, as an equiva- 
lent, for his services, and for the benefits received by the town, and not 
as a gift without consideration. The fact that the town was under no 
legal obligation to pay does not make it a gift without equivalent. . . . 

We are of opinion, in this case, that it was within the corporate power 
of the town to pass the vote in ciuestion. Whether it was wise to do so. 



JAY R. BENTON, ATTORNEY-GENERAL. 71 

was a matter within the discretion of the inhabitants of the town; and, 
in the absence of fraud or corruption, we cannot revise their judgment. 

The facts of the present case are fully as strong, if not 
stronger than those in the case last cited. I am accord- 
ingly of the opinion that the proposed bill, if enacted, would 
be constitutional. 



March 21. 



Insurance — Joint and Several Liability of Two or 
More Companies — Use of Corporate Name of 
MORE than One Insurance Company at the Head 
OF A Policy. 

A policy of insurance on which two or more companies are jointly and severally 
liable may not be issued except when specifically authorized by statute. 

A contract of insurance must be headed or entitled only by the name of the com- 
pany issuing the policy. 

You request my opinion as to the effect of the first clause m?iionM°S' 
of G. L., c. 175, § 18, requiring, as you state, that a contract ^"^ig'^s'""' 
of insurance shall "be headed or entitled only by the name 
of the company." You ask to be advised whether that 
clause "prevents the use of policies on which two or more 
companies are severally and jointly liable." The first 
clause of G. L., c. 175, § 18, is as follows: — 

Every company shall conduct its business in the commonwealth in its 
corporate name, and all policies and contracts, other than contracts of 
corporate suretyship, issued by it, shall, except as provided in section 
fifty-six of chapter one hundred and fifty-two, be headed or entitled only 
by such name. 

You submit with your letter a copy of the proposed policy, 
entitled "automobile policy," which is neither a contract of 
corporate suretyship nor one falling within the exemption 
of G. L., c. 152, § 56. It purports to be a policy establish- 
ing a joint and several liability on seven companies, all of 
whose corporate names head the policy. 



72 OPINIONS OF THE ATTORNEY-GENERAL. 

G. L., c. 175, § 105, specifically authorizes fidelity and 
corporate surety companies to "act as joint or sole surety" 
upon official and other bonds. 

G. L., c. 152, § 56, specifically authorizes two or more in- 
surance companies to "unite in issuing joint and several 
workmen's compensation policies which may be headed by 
the names of all such companies." 

The provisions of G. L., c. 175, as to reinsurance of risks 
do not apply to this proposition. 

It would seem clear, therefore, that the Legislature has 
clearly indicated under what circumstances a company may 
undertake a joint and several liability, and under what 
circumstances the names of more than one company may 
head a contract of insurance. As the policy in question 
does not fall within the exceptions noted in section 18, it 
may not be written by several companies and headed by 
their names. 

I answer your question, therefore, in the negative. 



jay r. benton, attorney-general. 73 

Constitutional Law — "Anti-aid" Amendment — Ap- 
propriation OF Public Money for Private Pur- 
poses — Soldiers' Home — Civilian Employees — 
Civil Service Rules and Regulations — State 
Retirement System. 

The Soldiers' Home is a privately owned charitable corporation, not a State in- 
stitution. 

Employees of the Soldiers' Home are not employees of the Commonwealth, and 
are not within the scope of the State retirement system, provided for by 
G. L., c. 32, §§ 1-5. 

Employees of the Soldiers' Home are not "in the ser\dce of the Commonwealth." 
within the meaning of G. L., c. 31, § 3, and are not subject to the ci\dl service 
rules and regulations. 

A statute extending the State retirement system so as to include all civilian em- 
ployees of the Soldiers' Home would authorize the employment of public 
money for private purposes, and would be unconstitutional. 

A statute extending the State retirement system so as to include the civilian em- 
ployees of the Soldiers' Home is not an appropriation "for the maintenance 
and support of the Soldiers' Home in Massachusetts," authorized by Mass. 
Const. Amend. XLVI, § 2. 

In your letter of February 23rd you request my opinion "^l^^^^f r^p- 
on the following questions : — reseiuatives. 



March 22. 



1. Are the employees of the Soldiers' Home State employees, within 
the general meaning of that term in the statutes? 

2. Are the employees of the Soldiers' Home subject to the civil semce 
laws, rules and regulations now in force? 

3. If your answer to question 1 is in the affirmative, are State employees 
at the Soldiers' Home now within the scope of the State retirement act, 
or is a special act necessary to bring them within its provisions? 

4. If your answer to question 2 is in the negative, -will you then answer 
the question — would House Bill No. 784, if enacted into law, be consti- 
tutional? 

''The Trustees of the Soldiers' Home in Massachusetts" 
was incorporated by St. 1877, c. 218, amended by St. 1886, 
c. 32. The number of trustees was limited to eighteen, of 
whom fifteen were to be members of the voluntary associa- 
tion known as the Department of Massachusetts, Grand 
Army of the Republic. In 1889 the number of trustees was 
increased from eighteen to twenty-one, the three new trus- 



74 OPINIONS OF THE ATTORNEY-GENERAL. 

tees to be appointed by the Governor, by and with the 
advice and consent of the Council. St. 1889, c. 282. By 
Res. of 1905, c. 77, $100,000 was appropriated by the Com- 
monwealth, to be expended under the direction of the 
Trustees of the Soldiers' Home, for the construction and 
furnishing of an additional building. A reversionary in- 
terest in the building was reserved to the Commonwealth 
by this resolve. 

The Soldiers' Home is financed in part by the income from 
voluntary contributions and bequests, and in part by yearly 
appropriations by the Commonwealth. Mass. Const. Amend. 
XLVI, § 2, which forbids State contributions to private 
charitable organizations, contains a specific exception to 
the effect "that appropriations may be made for the main- 
tenance and support of the Soldiers' Home in Massachu- 
setts and for free public libraries in any city or town." 
Finally, the Soldiers' Home relies also for its support upon 
income derived from the Federal government. $120 per 
annum is paid by the Federal government to the Common- 
wealth of Massachusetts for each inmate of the Home. 
The sums so received by the Commonwealth are paid over 
to the treasurer of the Soldiers' Home, in accordance with 
the provisions of St. 1890, c. 373. 

1 . In my opinion, the Soldiers' Home is a privately owned 
charitable corporation. Although the Commonwealth con- 
tributes to the support of the Home, it is not a State insti- 
tution, and the employees of the Home are in no sense 
employees of the Commonwealth. In this connection your 
attention is respectfully directed to an opinion rendered by 
the Attorney-General on February 5, 1913, in response to a 
letter from the treasurer of the Soldiers' Home requesting 
an opinion as to whether the Home should be covered by 
insurance under the workmen's compensation act, St. 1911, 
c. 751. In determining this question it was necessary to 
decide whether the Home was a State institution. On this 
point the opinion states: 'The Home is not a State insti- 
tution, and the employees of the Home are in no sense 



JAY R. BENTON, ATTORNEY-GENERAL. 75 

employees of the Commonwealth." My answer, therefore, 
to the first question propounded by you is in the negative. 

2. Section 3 of the present civil service law, G. L., c. 31, 
provides that the Civil Service Commission shall, subject 
to the approval of the Governor and Council, from time to 
time make rules and regulations which shall regulate the 
selection of persons to fill appointive positions in the gov- 
ernment of the Commonwealth, the several cities thereof, 
and certain towns, and the selection of persons to be em- 
ployed as laborers or otherwise "in the service of the Com- 
monwealth and said cities and towns." Clause 5 of rule 1 
of the civil service rules provides : — 

Persons paid by the Commonwealth or any city, whether carried on 
the regular payroll, on special payroll or by presenting a bill personally 
or bj^ 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. 

As the employees of the Soldiers' Home are neither em- 
ployed nor paid by the Commonwealth, it is my opinion 
that they are not subject to the civil service laws, rules and 
regulations now in force; and my answer to your second 
question is also in the negative. 

3. G. L., c. 32, § 2, provides for a retirement association 
for the employees of the Commonwealth, including employ- 
ees in the service of the Metropolitan District Commission. 
Section 1 of the same act, as amended by St. 1922, c. 341, 
§ 1, defines "employees" as meaning "persons permanently 
and regularly employed in the direct service of the Com- 
monwealth or in the service of the Metropolitan District 
Commission, whose sole or principal employment is in such 
service." It is apparent from what has been said above 
that the employees of the Soldiers' Home are not now within 
the scope of the State retirement act. 

4. Your final question is whether House Bill No. 784, if 
enacted into law, would be constitutional. The act pro- 



7G ' OPINIONS OF THE ATTORNEY-GENERAL. 

vides, in substance, that all civilian employees of the Trus- 
tees of the Soldiers' Home in Massachusetts shall be brought 
within the provisions of the present State retirement sys- 
tem, G. L., c. 32, §§ 1-5. 

As a general proposition, it seems clear that a law author- 
izing the employment of State funds, under a retirement 
system such as that now in force in the Commonwealth, 
to pension the ex-employees of a public charitable corpora- 
tion other than a State institution would be unconstitu- 
tional. 

Looked at, if it may be so regarded, as a circuitous method 
of benefiting the public charitable corporation itself, such 
an act would violate the terms of Mass. Const. Amend. 
XLVI, the so-called "anti-aid" amendment, and would 
therefore be unconstitutional. Looked at from the view- 
point of the individual recipients of the pension, such an 
act would authorize the employment of public money for 
private purposes, and would therefore be unconstitutional. 
Lowell V. Boston, 111 Mass. 454; Whittaker v. Salem, 216 
Mass. 483; Opinion of the Justices, 175 Mass. 599; Loan 
Assn. V. Topeka, 20 Wall. 655. 

The pensioning of certain special classes of persons is 
clearly within the constitutional authority of the Legisla- 
ture. Veterans of former wars are one example of a class 
to whom the Legislature may thus disburse public money. 
The constitutionality of such action rests, however, upon 
considerations quite apart from those involved in the present 
problem. It rests upon the power to reward unusual and 
distinguished public service, and because a public purpose 
is deemed involved, namely, the promotion of a spirit of 
loyalty and patriotism. See Opinion of the Justices, 211 
Mass. 608; Opinion of the Justices, 190 Mass. 611. 

State employees form another group, the constitutionality 
of whose pensioning appears never to have been questioned. 
LTnusual and distinguished public service can here hardly 
be held the justification for State expenditures. The con- 
stitutional power of the Legislature to pension State em- 



JAY R. BENTON, ATTORNEY-GENERAL. 77 

ployees probably rests, in part, upon one or both of the 
following considerations. It may be thought that by pen- 
sioning its own employees the State secures more efficient 
service, either because a contented employee may be ex- 
pected to render better service than a discontented one; 
or because the prospect of recompense at the completion of 
a period of continuous service is likely to lead to a desire 
to remain in that service, and therefore to an effort to give 
satisfaction. On the other hand, a pension system may be 
looked upon perhaps simply as a part of the consideration 
which the State gives to secure the services which it needs. 
A dictum in Opinion of the Justices, 175 Mass. 599, appears 
to rest the power upon the latter basis. 



The questions, as we understand them, both assume that there was 
110 provision of law in existence before the death of the officer by which 
the money in question would be payable as supposed. If such a provision 
should be enacted ^vith regard to the widow, heirs, or legal representatives 
of a living officer, it naturally would be regarded as pledging the faith of 
the State to the officer himself, and thus as constituting part of the con- 
sideration for his future service. 



Mass. Const. Amend. XLVI expressly exempts from the 
scope of its inhibition certain appropriations, and provides 
that "appropriations may be made for the maintenance and 
support of the Soldiers' Home in Massachusetts." 

The final inquiry made by you therefore resolves itself 
into the single question: Can the constitutionality of House 
Bill No. 784 be supported by reason of the phrase in the 
"anti-aid" amendment which authorizes appropriations for 
the maintenance and support of the Soldiers' Home? 

If pensions to employees are in fact a part of the consider- 
ation of their contract of employment, it might be contended 
that a State pension to the civilian employees of the Sol- 
diers' Home should be looked upon merely as a contribu- 
tion towards the hiring of employees by the Home, — in 
other words, a contribution towards the support and main- 



78 OPINIONS OF THE ATTORNEY-GENERAL. 

tenance of the Home, and hence within the exception to the 
"anti-aid" amendment. 

After careful consideration I am of the opinion, however, 
that this Hne of argument, though plausible enough on its 
face, is untenable. 

The primary object, the thing actually accomplished by 
extending the benefits of the present retirement system to 
the civilian employees of the Home, is not to benefit the 
Home by making it easier or cheaper for it to engage em- 
ployees. As a practical matter, it may well be doubted 
whether the wages of employees would be a whit lower after 
the passage of the act than they were before. Certainly 
they would not be lower by the full amount of the money 
to be contributed by the Commonwealth. That money, 
either in whole or in part, would be expended for the sup- 
port and maintenance, not of the Home, but of the Home's 
ex-employees. Such an expenditure of public money is un- 
constitutional. The principle which makes it so is the 
general one already referred to. Public money must be 
reserved for public purposes. That principle is wholly 
unrelated to the "anti-aid" amendment, and the saving 
clause in that amendment cannot be relied upon to warrant 
the expenditures in question. The clause can be no broader 
in scope than the general prohibition to which it is merely 
an exception. 

Moreover, the phrase "for the maintenance and support 
of the Soldiers' Home" must be construed strictly. A broad, 
sweeping prohibition was enacted. A single specific excep- 
tion was then inserted therein. Since this exception limits 
the application of the general policy evinced by the amend- 
ment as a whole, and is in the nature of a special privilege 
or grant, by familiar principles of interpretation it must be 
construed strictly and not extended by implication. Butch- 
ers Slaughtering, etc., Assn. v. Boston, 214 Mass. 254, 258. 
In my opinion, the words used go no farther than to author- 
ize the Legislature to continue in the future, as it had done 
in the past, to make voluntary contributions towards the 



JAY R. BENTON, ATTORNEY-GENERAL. 79 

support and maintenance of the Home. They did not con- 
template, and cannot, I beheve, be deemed to authorize, 
an act which purports to obhgate the Commonwealth in 
the future to expend money as needed to pension ex-em- 
ployees of the Home. 

Further, House Bill No. 784 would impose the retirement 
system upon all employees of the Soldiers' Home, whether 
they desired it or not. Serious doubts might arise, in my 
opinion, as to the constitutionality of what would appear to 
be an impairment of the obligation of those contracts of 
service between the Home and its employees which might 
be in existence at the time the act becomes effective. In 
view of the conclusion arrived at above, however, I need not 
develop further this aspect of the problem. 

I am constrained to advise you in reply to your fourth 
inquiry that, in my opinion, House Bill No. 784, if enacted, 
would be unconstitutional. 



Corporations — Stockholders — Right to inspect 
Corporate Records. 

A proposed bill is constitutional which provides that, if an action for damages 
or a proceeding in equity is commenced for neglect or refusal to exhibit for 
inspection the stock and transfer books of a corporation, "it shall be a defence 
that the actual purpose and reason for the inspection sought are to secure a 
list of stockholders for the purpose of selling said list, or copies thereof, or of 
using the same for a purpose other than in the interest of the applicant, as a 
stockholder, relative to the affairs of the corporation." 

You request me to consider House Bill No. 620, entitled ^othe 
"An Act relative to the exhibition of certain corporate 
records for inspection by stockholders." 

This bill contemplates an amendment of G.L., c. 155, §22, 
under which a stockholder is given an absolute right to in- 
spect the stock and transfer books of a corporation, regard- 
less of his purpose in making such examination. Statutes 
of other jurisdictions confer upon stockholders a similar 
right, and have been upheld by the courts thereof. Foster 



Governor. 

1923 
March 23. 



80 OPINIONS OF THE ATTORNEY-GENERAL. 

V. White, 86 Ala. 467; Johnson v. Langdon, 135 Cal. 624; 
State V. Middlesex Banking Co., 87 Conn. 483; Stone v. 
Kellogg, 165 111. 192; Ellsworth v. Dorwart, 95 la. 108; 
Knox V. C churn, 117 Me. 409; Wight v. Heublein, 111 Md. 
649; //i*6 Constructio7i Co. v. iVe^y England Breeders^ Club, 
74 N. H. 282; Henry v. 5a6coc/j cfe PFi7cox Co., 196 N. Y. 
302; Cincinnati Volkshlatt Co. v. Hoffmeister, 62 Ohio St. 
189, 198; Kimball v. Bern, 39 Utah, 181; Lewis v. Brainerd, 
53 Vt. 519. 

It is well settled that the common law right of a stock- 
holder to inspect the books of a corporation is a qualified 
and not an absolute right, the court having power to de- 
termine whether or not a stockholder's desire for examination 
not only is reasonable but "has reference to the interests of 
the corporation and his personal interest as a member of 
it." Varney v. Baker, 194 Mass. 239; Butler v. Martin, 
220 Mass. 224. 

At common law the procedure by which a stockholder 
obtained access to the books of a corporation, after having 
been refused the privilege of inspecting them, was by writ 
of mandamus. Ordinarily, relief by mandamus was not 
given under these circumstances unless it appeared to the 
court that the interests or rights of the petitioner as a stock- 
holder were likely to be seriously prejudiced and affected. 
But since the enactment of G. L., c. 155, § 22, the Supreme 
Court of this Commonwealth has held that, unless the 
statute imposes restrictions or limitations, the right of ex- 
amination thereby granted is absolute, and the motive or 
purpose of the stockholder in seeking to exercise it is not 
the proper subject of judicial inquiry. The courts of other 
jurisdictions have likewise so decided in interpreting similar 
statutes in their jurisdictions. 

In construing the present statute, in the case of Shea v. 
Parker, 234 Mass. 592, the Supreme Judicial Court says, at 
page 594 : — 



JAY R. BENTON, ATTORNEY-GENERAL. 81 

It may be presumed that before enacting the statute the Legislature 
considered the possibility that information thus obtained might as in the 
case at bar have a commercial value distinct and quite apart from the 
stockholder's interest as a corporate member, and undoubtedly could 
have made the right of examination dependent upon the motive actuating 
the stockholder. It has not however so done. The words conferring the 
right are unlimited, and the statute is mandatory. ^Vllile a stockholder's 
right to examine the general books of account to ascertain the volume of 
business transacted, and the method and efficiency of corporate manage- 
ment is left as at common law, the stock and transfer books by the statute 
are at all times to be exhibited under reasonable conditions for his full 
examination. The right also includes making of copies and transcripts 
as well as the assistance of counsel and copyists for such purpose. The 
statute when viewed in the light of its origin should not be so construed 
as to reduce the right to a useless inquiry', which it necessarily would be 
in most cases unless the stockholder is permitted to copy the names, 
residences and numbers of shares of the stockholders. . . . 

We are therefore of opinion that instead of being merely declaratory, 
or limiting the right to the sound discretion of the court, the statute was 
intended to do away -svith the restrictions imposed at common law on the 
examination of the stock and transfer books of a domestic corporation. 

Under the terms of the proposed bill, if an action for damages or a pro- 
ceeding in equity is commenced under the statute for neglect or refusal 
to exhibit for inspection the stock and transfer books, "it shall be a de- 
fence that the actual purpose and reason for the inspection sought are to 
secure a list of stockholders for the purpose of selling said list, or copies 
thereof, or of using the same for a purpose other than in the interest of 
the applicant, as a stockholder, relative to the affairs of the corporation." 

The effect of this amendment would seem to restore, to a 
large measure, if not entirely, the common law rule, and 
would authorize and require the court to exercise its sound 
discretion as to whether or not damages are recoverable or 
an injunction should lie, if the defence provided for is in- 
troduced and maintained. It is, however, unquestionably 
within the power of the Legislature to thus amend the sta- 
tute. See Shea v. Parker, supra. 

I am accordingly of the opinion that the bill, if enacted, 
would be constitutional. 



I 



82 opinions of the attorney-general. 

Constitutional Law — Criminal Cases — Public Trial. 

The right of persons accused of crime to have a public trial has always been recog- 
nized in this Commonwealth. 

An act providing that the public be excluded from the trial of all criminal cases, 
or of all cases involving moral turpitude, would be unconstitutional. 

Under certain circumstances, and in certain cases, the general public may be 
excluded. 

An act providing that the general public be excluded from the trial of criminal cases 
involving morals or chastity, where a minor is the person upon whom the 
crime has been committed, would be constitutional. 

Governor. You TequGst Hie to consider House Bill No. 1219, entitled 

March^23. "An Act to protect witnesses under the age of seventeen 
at trials for certain crimes." 

The proposed bill is in effect a limitation of the right of 
persons accused of certain crimes to a public trial. This 
right is one of the most important safeguards in the prose- 
cution of persons accused of crime. It exists for the pro- 
tection of the accused; it enables the public to see that he 
is fairly dealt with and not unjustly condemned; it acts as 
a security for trustworthiness and completeness of testimony ; 
and it keeps his triers, court, jury and counsel, alive to a 
strict conscientiousness in the performance of their duty. 

This right, together with the right of trial by a jury of 
one's peers, to be informed of the nature of the accusation, 
to be confronted with the witnesses against him, to be heard 
fully in his own defence, to have compulsory process for 
obtaining witnesses in his favor, and to refuse to furnish 
evidence against himself, is the outgrowth of reforms 
brought about as a result of many grave abuses in England 
in the administration of criminal law, and became a part 
of the Constitution of the United States and of practically 
every State in the Union. 

As far back as 1649 this right was claimed in England by 
a defendant placed on trial for treason. Lithurne's Trial, 
4 How. St. Tr. 1269, 1273; Cornish's Trial, 11 How. St. 
Tr. 460 (1685). 

In the case of Daubney Cooper, 10 B. C. 237, 240, the 
court said : — 



JAY R. BENTON, ATTORNEY-GENERAL. 83 

We are all of the opinion that it is one of the essential qualities of a 
court of justice that its proceedings should be public. 

Though there is no express provision in the Constitu- 
tion that persons accused of crime shall have a right to 
public trial, this right has always been recognized in this 
Commonwealth and accorded to persons accused of crime. 
Article XII of the Declaration of Rights provides, in part : — 

. . . And no subject shall be arrested, imprisoned, despoiled, or de- 
prived of his property, immunities, or privileges, put out of the protec- 
tion of the law, exiled, or deprived of his life, liberty, or estate, but by 
the judgment of his peers, or the law of the land. . . . 

The court has held that "the law of the land" made an 
indictment or presentment by a grand jury essential to the 
validity of a conviction in case of prosecution for felonies. 
Jo7ies V. Robhins, 8 Gray, 329. The secrecy of grand jury 
proceedings has been held to be included within the mean- 
ing of the term "law of the land." Commonwealth v. Harris, 
231 Mass. 584; Opinion of the Justices, 232 Mass. 601. At 
page 604 of the Opinion the justices said: — 

Mere rules of procedure practised by our ancestors at the time of the 
adoption of the Constitution did not become an inherent part of due 
process. But no change "can be made which disregards those funda- 
mental principles, to be ascertained from time to time by judicial action, 
which have relation to process of law and protect the citizen in his private 
right, and guard him against the arbitrary action of government." Twm- 
inq V. New Jerseij, 211 U. S. 78, 101. 

An act providing that the public be excluded from the 
trial of all criminal cases would, in my opinion, be repug- 
nant to article XII of the Declaration of Rights, and would 
be unconstitutional. The right to a public trial does not, 
however, mean that all persons who desire to attend crimi- 
nal trials shall in all cases be permitted to do so. Bishop 
Crim. Proc. §§ 658, 659. Cooley, in his Constitutional 
Limitations, 7th ed., p. 441, speaking of this right, says: — 



84 OPINIONS OF THE ATTORNEY-GENERAL. 

The requirement is fairly observed if, without partiaUtj'^ or fa^'oritism, 
a reasonable proportion of the public is suffered to attend, notwithstand- 
ing that those persons whose presence could be of no ser\nce to the ac- 
cused, and who would only be drawn thither by a prurient curiosity, are 
excluded altogether. 

The grounds generally recognized as justification for the 
exclusion of the general public have been the danger of 
overcrowding the court room, the risk of violence or brawls, 
the maintenance of order and decorum in the court room, 
and the protection of the public morals, especially the morals 
of the young. People v. Swafford, 65 Cal. 223; People v. 
Kerrigan, 73 Cal. 222; People v. Hall, 51 N. Y. App. 57; 
Grimmett v. State, 22 Tex. App. 36; State v. Brooks, 92 Mo. 
542. This is the general rule, though not recognized in 
some jurisdictions. See People v. Murray, 89 Mich. 276; 
People V. Y eager, 113 Mich. 228. In the latter case the 
court held invalid an act of the Legislature which pro- 
vided : — 

Whenever it shall appear that, upon the trial of any cause, evidence of 
Ucentious, lascivious, degrading, or peculiarly immoral acts or conduct 
will probably be given, the judge presiding at such trial may, in his dis- 
cretion, require and cause every person, except those necessarily in at- 
tendance thereon, to retire and absent himself or herself from the court 
room during such trial, or any portion thereof. 

In some States, by statute the court is given power to 
exclude the general public in cases where the evidence is 
vulgar and obscene and would tend to operate injuriously 
to the public morals, and in cases which relate to improper 
acts of the sexes, including such crimes as rape, assault with 
intent to rape, seduction, adultery, bastardy and divorce. 
Georgia Code (1895), § 5296; Utah Rev. Stat. (1898), 
§ 696; Wis. Stat. (1898), § 4789. 

In this Cominonwealth the courts have frequently, on 
motion of counsel or on their own initiative, in the interest 
of good morals and decency, and in order to maintain proper 
order and decorum in the court room, excluded the general 



JAY R. BENTON, ATTORNEY-GENERAL. 85 

public from the trial of cases. By statute in this Common- 
wealth the court is given discretionary power to exclude the 
general public in cases where the defendants are children 
under seventeen years of age, and minors, unless their 
presence is necessary either as parties or as witnesses, must 
be excluded. G. L., c. 119, § 65. The court may also ex- 
clude minors as spectators from the court room during the 
trial of any cause, civil or criminal, if their presence is not 
necessary as witnesses or parties. G. L,, c. 220, § 13. 

The test in all cases where this general rule is recognized 
is its reasonableness under the particular circumstances, 
both as to the class of persons excluded and as to the grounds 
for exclusion. 

The proposed bill is doubtless intended to be in the inter- 
est of public morals, and to protect minors against being 
compelled to testify in public in cases where the evidence 
would involve their morals or chastity, would be vulgar 
and obscene, and would tend to degrade the person testi- 
fying. Were it in terms Umited solely to such cases, I am 
of the opinion that it would come within the general rule 
and would be constitutional. The proposed bill, however, 
goes much farther in that it includes all crimes involving 
moral turpitude. "Moral turpitude," as legally defined, in- 
cludes everything done contrary to justice, honesty, mod- 
esty or good morals. It includes every act of baseness, 
vileness or depravity in the private and social duties which 
a man owes to his fellow^ men or to society in general, con- 
trary to the accepted or customary rule of right and duty 
between man and man. 

In many such cases none of the recognized exceptions to 
the right of a defendant to a public trial could possibly ob- 
tain. In many of them, as in larceny, neither the protec- 
tion of pubhc morals nor of the witness could possibly war- 
rant the exclusion of the public. To deny defendants a 
public trial under such circumstances, because the com- 
plainant is a child under seventeen years of age, would not 
be justified. 



86 



OPINIONS OF THE ATTORNEY-GENERAL. 



I am therefore of the opinion that the proposed bill, if 
enacted, would be unconstitutional. If the bill were 
amended by striking out the words ''or other crime involv- 
ing moral turpitude," and inserting in place thereof the 
words "or other similar crimes," the bill, if enacted in that 
form, would, in my opinion, be constitutional. 



To the Com- 
missioner of 
Corporations 
and Taxation. 

1923 
March 24. 



Taxation of Corporations — Interpretation of 
Statute — "Net Income." 

Under the Federal Revenue Act of 1921, "net losses," as defined by section 204, 
are not deductible from "gross income" under sections 233 and 234, but are 
deductible from "net income" as defined by section 232. 

"Net income," as defined by G. L., c. 63, § 30, par. 5, as amended by St. 1922, 
c. 302, means, with the modifications there specified, the net income required 
to be returned to the Federal government before the deduction of any sum 
as an allowance for net losses, and such losses are therefore not deductible 
under the corporation tax laws. 

You request my opinion whether in determining "net 
income," as defined in G. L., c. 63, § 30, par. 5, as amended 
by St. 1922, c. 302, "net losses," as defined in section 204 
of the Federal Revenue Act of 1921, are deductible. 

G. L., c. 63, § 30, par. 5, as amended by St. 1922, c. 302, 
is as follows : — 



5. "Net income," except as otherwise provided in sections thirty- 
four and thirty-nine, the net income for the taxable year as required to be 
returned by the corporation to the federal government under the federal 
revenue act of nineteen hundred and eighteen or the federal revenue act 
of nineteen hundred and twenty-one, whichever of said acts may be ap- 
plicable, and, in the case of a domestic business corporation, such interest 
and dividends, not so required to be returned as net income, as would 
be taxable if received by an inhabitant of this commonwealth; less, both 
in the case of a domestic business corporation and of a foreign corporation, 
interest, so required to be returned, which is received upon bonds, notes 
and certificates of indebtedness of the United States. 



"Net income" of a corporation is defined by section 232 
of the Federal Revenue Act of 1921. Said section is as 
follows : — 



JAY R. BENTON, ATTORNEY-GENERAL. 87 

That in the case of a corporation subject to the tax imposed by section 
230 the term "net income" means the gross income as defined in section 
233 less the deductions allowed by section 234, . . . 

''Gross income" of a corporation is defined by section 233, 
and section 234 provides for the allowance of deductions to 
be made in computing the net income of a corporation. 

Section 204 (b) of the Federal Revenue Act of 1921 is as 
follows : — 

If for any taxable year beginning after December 31, 1920, it appears 
upon the production of evidence satisfactory to the Commissioner that 
any taxpayer has sustained a net loss, the amount thereof shall be de- 
ducted from the net income of the taxpayer for the succeeding taxable 
year; and if such net loss is in excess of the net income for such succeed- 
ing taxable year, the amount of such excess shall be allowed as a deduc- 
tion in computing the net income for the next succeeding taxable year; 
the deduction in all cases to be made under regulations prescribed by the 
Commissioner with the approval of the Secretary. 

Article 1602 of Regulations 62, 1922 edition, provides, in 
part, as follows : — 

A taxpayer sustaining a "net loss" such as set forth in section 204, for 
any taxable year ending after December 31, 1920, may file a claim there- 
for with his return for the subsequent taxable year. ... If the evidence 
furnished satisfies the Commissioner that the taxpayer has sustained a 
"net loss" the amount of such net loss may be deducted from the net 
income of the taxpayer for the succeeding taxable year and if such net 
loss is in excess of the net income for such succeeding taxable j'^ear the 
amount of such excess shall be carried over and credited against the 
net income for the next succeeding taxable year. 

It is, in my opinion, plain that "net losses," allowed as a 
deduction by section 204, paragraph (b), are deducted not 
from the gross income but from the net income, and that 
"net income," as defined by section 232, includes no de- 
duction for such net losses. The net income, therefore, 
which is referred to in G. L., c. 63, § 30, par. 5, as amended 
by St. 1922, c. 302, is the net income which is required to 



OPINIONS OF THE ATTORNEY-GENERAL. 

be returned by the corporation to the Federal government 
under the Federal Revenue Acts before the deduction of 
any sum as an allowance for net losses. 



March 26. 



Constitutional Law — Jurisdiction over Non-resi- 
dents — Operation of Motor Vehicles within 
THE Commonwealth by Non-residents. 

A statute providing that the operation of a motor vehicle within the Common- 
wealth by a non-resident shall be deemed equivalent to an appointment of 
the Registrar of Motor Vehicles as an attorney upon whom service of process 
may be made in any action growing out of an accident or collision in which 
such non-resident may bo involved while operating a motor vehicle within 
the Commonwealth, would be constitutional. 

committ'^'e"on ^^^ have asked my opinion as to whether a proposed law, 
*^''{923''''""' entitled "An Act further regulating the right of non-resi- 
dents to operate motor vehicles within the Commonwealth," 
would be constitutional. 

The proposed act provides, in substance, that the operat- 
ing of a motor vehicle within the Commonwealth by a non- 
resident shall be deemed equivalent to an appointment by 
such non-resident of the Registrar of Motor Vehicles as an 
attorney upon whom service of process may be made in 
any action growing out of an accident or collision in which 
such non-resident may be involved while operating a motor 
vehicle within the Commonwealth. 

In the case of Kane v. New Jersey, 242 U. S. 160, decided 
in 1916, the Supreme Court of the United States held con- 
stitutional a provision of a New Jersey statute regulating 
the operation of motor vehicles which provided that a non- 
resident owner of a motor vehicle must file with the Secre- 
tary of State an instrument constituting the Secretary of 
State an attorney upon whom process might be served in 
any action caused by the operation of such motor vehicle 
within the State. In delivering the opinion of the court 
Mr. Justice Brandeis said : — 



JAY R. BENTON, ATTORNEY-GENERAL. 89 

We know that ability to enforce criminal and civil penalties for trans- 
gression is an aid to securing observance of laws. And in view of the 
speed of the automobile and the habits of men, we cannot say that the 
Legislature of New Jersey was unreasonable in believing that ability to 
establish, by legal proceedings within the State, any financial liability 
of nonresident owners, was essential to public safety. There is nothing 
to show that the requirement is unduly biu'densome in practice. It is 
not a discrimination against nonresidents, denying them equal protection 
of the law. On the contrary, it puts nonresident owners upon an equality 
with resident owners. 



The proposed act differs from the New Jersey statute with 
regard to the feature under consideration in two respects 
only, — first, in that it does not provide for the actual filing 
of a power of attorney by non-resident operators, but de- 
clares that the operation of a motor vehicle within the Com- 
monwealth by a non-resident shall be deemed the equiva- 
lent of such action by him; and second, in that it applies 
to any non-resident operating a motor vehicle within the 
Commonwealth, irrespective of whether or not he is the 
owner thereof. 

In the case of foreign corporations doing business within 
a State it has been repeatedly held that they have thereby 
consented to be sued in the courts of that State upon causes 
of action arising out of the business done by them within 
its borders. This is irrespective of whether there was any 
actual consent by them to such jurisdiction, and irrespec- 
tive also of whether the particular statute involved required 
the filing of a power of attorney by the corporation or merely 
declared that doing business within the State should be 
deemed equivalent to the filing of such an instrument. 
Lafayette Ins. Co. v. French, 18 How. 404. It would seem 
no more difficult to apply this doctrine of implied consent 
to an individual non-resident than to a foreign corporation. 
The reasoning of the Supreme Court in Kane v. New Jersey, 
supra, does not suggest that the constitutionality of the 
provision in the New Jersey statute depended in any way 
upon the fact that it did not include all non-residents operat- 



90 OPINIONS OF THE ATTORNEY-GENERAL. 

ing a motor vehicle upon the highways of the State, but 
was restricted to non-resident owners. 

I am accordingly of the opinion that the proposed act, 
if enacted into law, would be constitutional. 



State Employee — Removal — Hearing — Veteran at 
State Infirmary — Civil Service. 

The services of a State employee who is a veteran, but whose employment has not 
been approved by the board of trustees of the State Infirmary as required by 
G. L., c. 122, § 1, and who is not employed as the result of an appointment 
under civil service provisions, may legally be discontinued without hearing. 

m?88*i^on?r°^" ^y opiuion has been requested as to whether or not the 

^''*i923^'''^^'^''' superintendent of the State Infirmary has the right to dis- 
March_27. coutinue the services of an individual who is a veteran, whose 
employment has not yet been approved by the board of 
trustees of the infirmary, as required by G. L., c. 122, § 1, 
and who is not employed as the result of an appointment 
under civil service provisions. 

G. L., c. 122, § 1, provides, in part, as follows: — 

The trustees (of the state infirmary) shall appoint a superintendent 
of the state infirmary . . . All other officers and employees shall be 
appointed by the superintendent subject to the approval of the trustees, 
who shall fix the compensation in each case. 

Not having received the approval of the trustees under 
this section, the man in question may be removed without 
a hearing unless he comes within the provisions of G. L., 
c. 31, § 26, which, so far as pertinent to the present ques- 
tion, reads as follows : — 

No veteran holding office or employment in the pul^lic service of the 
commonwealth . . . shall be removed . . . except after a full hearing 
of which he shall have at least seventy-two hours' written notice, with a 
statement of the reasons for the contemplated removal. . . . The hear- 
ing in case of a state employee shall be before the board of conciliation 
and arbitration, . . . 



JAY R. BENTON, ATTORNEY-GENERAL. 91 

From the information furnished me it does not appear 
that the man in question has passed the civil service exami- 
nation or applied as a veteran for appointment without an 
examination; and he was not appointed under the civil 
service provisions relating to veterans. 

The statute referred to, G. L., c. 31, § 26, was designed to 
protect only those persons who were appointed under the 
civil service law as veterans. As was said by Morton, J., 
in Ayers v. Hatch, 175 Mass. 489, 490: — 

It (the statute) was intended to prevent the removal or suspension or 
transfer without his assent and without a full hearing of a veteran who 
had been appointed under the statutes and rules relating to the civil 
service. 

The fact that the employee in the case at hand happens 
to be a veteran does not bring him within the protection of 
the statute. Bates v. Selectmen of Westfield, 222 Mass. 296. 

Accordingly, in my opinion, the employment of the man 
in question may be discontinued without a hearing. 



Taxation — Tax on Motor Vehicles. 

A statute purporting to impose an excise tax on motor vehicles, measuring the 
tax by a percentage of their list prices and exempting them from local prop- 
erty taxation, would he unconstitutional because the tax in its essence would 
be a tax upon the mere ownership of property, which would not be propor- 
tional. 

You have submitted for my consideration a proposed bill, Jo the House 

^ r- J- 7 Committee on 

set out in Appendix W of House Document No. 1240, en- "^^^^f""- 
titled "An Act to provide an excise tax on motor vehicles." ^pni^. 
The bill contains provisions material to the present inquiry 
as follows: It provides by section 7 for the levying of ex- 
cises on motor vehicles owned or controlled by inhabitants 
of the Commonwealth or by persons or partnerships having 
a regular place of abode or business therein, or used therein 
in the business of corporations, measured by a percentage of 
the makers' list prices of such motor vehicles, to be paid to 



92 OPINIONS OF THE ATTORNEY-GENERAL. 

the treasurer of each city and the clerk of each town. By 
section 2 payment of such excise is required to be made 
before the motor vehicle can be registered. In section 1 
the excise is said to be in lieu of a local property tax, and 
motor vehicles with respect to which the excise has been 
paid are exempt from taxation under G. L., c. 59. The bill 
provides in section 8 that moneys received from such excises 
shall be used for the general purposes of the city or town. 
You ask my opinion whether the proposed bill would be 
constitutional. 

To be constitutional the bill must be based on the right 
to exercise one of the two following powers granted to the 
General Court by Mass. Const., c. I, § I, art. IV: — 



... to impose and levy proportional and reasonable assessments, 
rates, and taxes, upon all the inhabitants of, and persons resident, and 
estates lying, within the said commonwealth; and also to impose and 
levy reasonable duties and excises upon any produce, goods, wares, mer- 
chandise, and commodities, whatsoever, brought into, produced, manu- 
factured, or being within the same; . . . 



The provisions of the bill show that it is not intended 
thereby to lay a tax upon property within the first of the 
two clauses quoted. Regarded as a tax on property, the 
proposed tax would clearly be invalid because not propor- 
tional. It would not be proportional because it would be 
imposed upon certain property at a rate different from that 
at which other property in the Commonwealth is taxed. 
Portland Bank v. Apthorp, 12 Mass. 252, 255; Oliver v. 
Washington Mills, 11 Allen, 268, 275; Gleason v. McKay, 
134 Mass. 419, 423, 424; Opinion of the Justices, 195 Mass. 
607; Opinion of the Justices, 208 Mass. 616, 618; Opinion 
of the Justices, 220 Mass. 613, 620-623. 

The bill would therefore be unconstitutional unless it 
could be supported as an exercise of the power granted by 
the second clause, "to impose and levy reasonable duties and 
excises upon any produce, goods, wares, merchandise, and 



JAY K. BENTON, ATTORNEY-GENERAL. 93 

commodities, whatsoever, brought into, produced, manu- 
factured, or being within" the Commonwealth. 

The question of the meaning and application of this clause 
was carefully considered by the justices in Opinion of the 
Justices, 196 Mass. 603, and their opinions were divergent. 
The chief justice and two associate justices in their opinion 
said (p. 622) : — 

The power to levy excise taxes has been much restricted by our Con- 
stitution. Such taxes can no longer be levied upon the mere ownership 
of property. Taxation upon property is provided for in the earlier clause 
of the Constitution, and it must be proportional upon all property alike. 
Excise taxes upon "produce, goods, wares or merchandise" can be im- 
posed only when these articles are introduced, produced, manufactured, 
sold or used in a way of which the State may take cognizance, as having 
some relation to the government or affecting the public interests. 

Three of the other justices thought that the power was 
broader, including the laying of imposts on domestic goods 
as property. Holding this view, they reached an opposite 
conclusion on the question submitted to them. The present 
chief justice, in a separate opinion, agreed with that con- 
clusion; but with respect to the extent of the application 
of the clause under consideration he evidently was in agree- 
ment with the opinion expressed in the quotation above. 
His view on that matter is made plain in more recent opin- 
ions to which reference is hereinafter made. 

The question has been considered in other cases. In 
Portland Bank v. Apthorp, 12 Mass. 252, 256, the court 
said : — 

The term excise is of very general signification, meaning tribute, cus- 
tom, tax, toUage, or assessment. It is hmited, in our Constitution, as 
to its operation, to produce, goods, wares, merchandise, and commodities. 
This last word will perhaps embrace everything, which may be a subject 
of taxation, and has been applied by our legislature, from the earliest 
practice under the Constitution, to the privilege of using particular 
branches of business or employment, as, the business of an auctioneer, 
of an attornej', of a tavern-keeper, of a retailer of spirituous liquors, &c. 



94 OPINIONS OF THE ATTORNEY-GENERAL. 

Again, in Minot v. Winthrop, 162 Mass. 113, 119, the 
court said : — 

The excises to which the inhabitants of the Province of Massachusetts 
Bay were accustomed were taxes in the nature of Hcense fees for carrying 
on certain kinds of business, taxes on the sale of goods, wares, and mer- 
chandise, such as intoxicating liquors, tea, coffee, and chocolate, china 
ware, etc., and stamp taxes on legal papers. The words "produce, goods, 
wares, merchandise . . . brought into, produced, manufactured, or be- 
ing" within the Commonwealth, are words of definite meaning . . . 

In Opinion of the Justices, 195 Mass. 607, 611, 612, an 
opinion was requested whether a statute providing for a 
uniform tax of three mills in each dollar of the cash valua- 
tion of certain enumerated classes of intangible personal 
property and exempting such property from all other taxa- 
tion, State and local, would be within the constitutional 
power of the General Court. The court answered the 
question in the negative. They held that the "mere right 
to own and hold property such as is referred to in the ques- 
tion cannot be made the subject of an excise tax." 

In Opinion of the Justices, 208 Mass. 616, 618, 619, the 
same principle was declared. The court stated : — 

The authority to levy an excise tax does not include a right to tax the 
mere ownership or possession of personal property of every kind. Such 
a tax cannot be laid upon money in one's pocket, or on deposit in a bank, 
or on money at interest, or on credits of any kind. 

The question whether a special tax may be laid upon a 
particular class of personal property seems to have been 
settled in Opinion of the Justices, 220 Mass. 613. In that 
case the justices were asked whether a statute which should 
attempt to impose an excise on incomes derived from in- 
tangible personal property and exempt such property from 
other taxation would be unconstitutional because not pro- 
portional. With respect to that inquiry the justices said 
(pp. 623, 624) : — 



JAY R. BENTON, ATTORNEY-GENERAL. 95 

Plainly it is laid as an excise. Such an imposition cannot be sustained 
under the clause of the Constitution relating to excises. A tax upon 
income from money on deposit or at interest, from bonds, notes or other 
debts due, and as dividends from stocks, coupled with exemption from 
all other taxation of the principal from which such income flows, is in 
substance and effect a tax upon the property from which it is derived. A 
tax upon the income of property is in reality a tax upon the property 
itself. Income derived from property is also property. Property by 
income produces its kind, that is, it produces property and not something 
different. It does not matter what name is employed. The character 
of the tax cannot be changed by calling it an excise and not a property 
tax. In its essence a tax upon income derived from property is a tax 
upon the property. This was decided after most elaborate consideration, 
with affluent citation of authorities, in Pollock v. Farmers' Loan & Trust 
Co., 157 U. S. 429, 581; S. C, 158 U. S. 601. We do not need to review 
that ground or to re-state the arguments in its support. It follows that a 
tax upon such income is a property and not an excise tax. This point 
is covered also by Opinion of the Justices, touching the so-called three- 
mill tax, reported in 195 Mass. 607. We adhere to the principles there 
stated and to the conclusions there reached. 

Shortly after the adoption of the Massachusetts Consti- 
tution a carriage tax was laid as an excise in Massachusetts. 
St. 1781, c. 17. A tax on carriages was also imposed by 
Congress, which was sustained in the case of Hylton v. 
United States, 3 Dall. 171, as a tax within the class of ex- 
cises, duties and imposts, which, therefore, did not require 
apportionment. The reason why it was so regarded, how- 
ever, was that it was not levied directly on property because 
of ownership thereof, but rather on the use of property. 
See Pollock v. Farmers' Loan & Trust Co., 157 U. S. 429, 
570-572; S. C, 158 U. S. 601, 623-627; Brushaher v. Union 
Pacific R.R. Co., 240 U. S. 1, 14. 

I do not, of course, decide that an excise tax cannot be 
laid upon motor vehicles. The provisions in the present 
law requiring registration of motor vehicles and the pay- 
ment of fees therefor (G. L., c. 90, §§ 33, 34) lay excise 
taxes. But the proposed tax, in my opinion, coupled with 
the exemption from other taxation, is in substance a tax 
upon property, and thus unconstitutional according to the 



96 OPINIONS OF THE ATTORNEY-GENERAL. 

principles stated in the decisions to which I have referred. 
1 must advise you, therefore, that, in my opinion, the pro- 
posed bill would be unconstitutional because the tax in its 
essence would be a tax on property and would not be pro- 
portional within the constitutional requirement. 



Legacy and Succession Tax — Interests of Non- 
resident UNDER Agreements with Massachusetts 
Corporations. 

Under G. L., c. 65, § 2, property passing by virtue of the exercise Jiy will of a power 
of appointment derived from a disposition of property before September 1, 
1907, is subject to a succession tax as property passing by the will of the donee 
of the power. 

A gift of property to one for life and on his death to his executor, to be paid over 
as the life beneficiary shall by will direct, gives him a general power to appoint 
by will. 

A general power of appointment is well executed, unless a contrary intention is 
shown, by a general residuary clause in the will of the donee of the power. 

The obligation of a Massachusetts corporation on the death of a non-resident to 
pay over a sum of money, with accumulated interest, to his executor, where 
no trust was intended to be created and no right in any specific property 
passed by the will of the deceased, is not an interest in property belonging to 
a person not an inhabitant of the Commonwealth which is taxable under 
G. L., c. 65, § 1, as amended by St. 1922, c. 403. 

Where a Massachusetts trust company receives a fund in trust to invest the prin- 
cipal in a general trust fund, and, after the death of a life beneficiary, to paj' 
the principal sum and accumulations of income to his executor, to be paid 
and distril)uted as he should by will direct, by transferring a proportional part 
of the general fund or the value thereof in money at the option of the com- 
pany, and the fund is invested accordingly, on the death of the life benefi- 
ciary, being a non-resident and leaving a will by which the power of appoint- 
ment is exercised, the proportional interest passing thereby in Massachusetts 
real estate and mortgages, stock of national banks situated iia Massachusetts 
and stock of Massachusetts corporations, in which the general trust fund was 
partly invested, was taxable as property belonging to a person not an in- 
habitant of the Commonwealth, under G. L., c. 65, § 1, as amended by St. 
1922, c. 403. 

To the Com- Under certain instruments executed by the New England 

missioner of . . 

and^Taxation Trust Compauy and by the Massachusetts Hospital Life 
Aprifl^ Insurance Company, prior to September 1, 1907, income was 

payable to a woman for life and principal was to be distrib- 
uted after her death to her executors or administrators. 
She died a non-resident of the Commonwealth, after St. 



JAY R. BENTON, ATTORNEY-GENERAL. 97 

1922, c. 403, took effect, leaving a will, as I am informed, 
by which her interest in said principal sums was disposed of. 

The agreements with the New England Trust Company 
were each entitled "Agreement of Trust" and acknowledged 
the receipt of a principal sum, which the company agreed 
to manage as a trust fund to be invested with other funds 
held upon other trusts. The company agreed to pay to 
the beneficiary named her proportional share of the income 
for life, and sixty days after her decease to pay the principal 
sum and unpaid accumulations of income to her executor, 
to be paid and distributed as she should by will direct, or 
to her administrator, "by transferring a just and propor- 
tional part of the general fund, or the value thereof in money, 
to be ascertained and fixed by the directors, at the option 
of the company." 

The agreements with the Massachusetts Hospital Life 
Insurance Company were each entitled "Annuity in Trust," 
and acknowledged the receipt of a principal sum, which the 
company agreed to invest. The company agreed to ascer- 
tain the income from all property in its possession and, after 
deducting expenses and losses, to apportion the net income 
pro rata and to pay to the beneficiary her proportion of the 
income during her life, with provisions that payment should 
be for her separate use, and that the right to receive the 
principal sum and interest should be inalienable and not 
subject to the claims of creditors; and the company agreed 
in sixty days after proof of the decease of the beneficiary 
to pay the amount of the principal sum and accumulations 
of interest to the executors or administrators of the bene- 
ficiary. 

The general fund of the New England Trust Company 
at the date of the death of the deceased non-resident, of 
which the deposits referred to constituted a part, was in- 
vested in part in Massachusetts real estate, in part in mort- 
gages of Massachusetts real estate, in part in stock of na- 
tional banks situated in Massachusetts, and in part in stock 
of Massachusetts corporations. The general fund of the 



98 OPINIONS OF THE ATTORNEY-GENEEAL. 

Massachusetts Hospital Life Insurance Company was also 
invested in part in each of the above-named four classes of 
property. 

You ask my opinion whether, under these circumstances, 
real estate or any interest in real estate within this Common- 
wealth, or stock of Massachusetts corporations or of na- 
tional banks, belonged to the deceased non-resident at the 
date of her death so as to be subject to inheritance tax 
under G. L,, c. 65, § 1, as amended by St. 1922, c. 403. 

Said section, as amended, is as follows : — 

All property within the jurisdiction of the commonwealth, corporeal 
or incorporeal, and any interest therein, belonging to inhabitants of the 
commonwealth, and all real estate within the commonwealth or any 
interest therein and all stock in any national bank situated in this com- 
monwealth or in any corporation organized under the laws of this com- 
monwealth belonging to persons who are not inhabitants of the common- 
wealth, which shall pass by will, or by 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 in contemplation of the 
death of the grantor or donor or made or intended to take effect in pos- 
session or enjoyment after his death, and any beneficial interest therein 
which shall arise or accrue by survivorship in any form of joint owner- 
ship in which the decedent joint owner contributed during his life any 
part of the property held in such joint ownership or of the purchase price 
thereof, to any person, absolutely or in trust, except to or for the use of 
charitable, educational or religious societies or institutions, the property 
of which is by the laws of the commonwealth exempt from taxation, or 
for or upon trust for any charitable purposes to be carried out within the 
commonwealth, or to or for the use of the commonwealth or any town 
therein for public purposes, shall be subject to a tax at the percentage 
rates fixed by the following table: 

1. G. L., c. 65, § 2, provides, in part, as follows: — 

Whenever any person shall exercise a power of appointment, derived 
from any disposition of property made prior to September first, nineteen 
hundred and seven, such appointment when made shall be deemed a dis- 
position of property by the person exercising such power, taxable under 
section one, in the same manner as though the property to which such 
appointment relates belonged absolutely to the donee of such power, and 
had been bequeathed or devised by the donee by will; . . . 



JAY R. BENTON, ATTORNEY-GENERAL. 99 

Under this section it is clear that property passing by 
virtue of the exercise by will of a power of appointment 
derived from a disposition of property before September 1, 
1907, is taxable under G. L., c. 65, § 1, as amended, as 
property passing by the will of the donee of the power. 
Minot V. Treasurer and Receiver General, 207 Mass. 588. 

2. It may be questioned whether a gift of property to 
one for life and on his death to his executor gives to the life 
beneficiary a power of appointment. No particular form 
of words need be used to confer a power of appointment. 
If the instrument shows an intention to give a power of 
appointment, one will be implied. It is a necessary infer- 
ence that a power of appointment is intended by a gift of 
a remainder after a life estate to the life tenant's executor, 
since the right to provide by will for the passing of another's 
property is, in fact, a power of appointment. In the in- 
strument executed by the New England Trust Company , 
the intention is made plain by the further provision that the 
principal is to be paid and distributed as the beneficiary 
shall by will direct. Bowen v. Dean, 110 Mass. 438; Todd 
V. Sawyer, 147 Mass. 570; Sands v. Old Colony Trust Co., 
195 Mass. 575. The deceased had, therefore, a general 
power to appoint by will. 

I am informed that the will of the deceased contains 
specific and pecuniary legacies for the satisfaction of which 
her own estate is ample, and a general residuary clause by 
which the remainder of her estate is given in trust for the 
benefit of her children and their issue. The will indicates 
an intention that the property passing to the trustees shall 
include the principal sums invested with the New England 
Trust Company and the Massachusetts Hospital Life In- 
surance Company. It is settled that a general power of 
appointment is well executed, in the absence of anything to 
show a contrary intention, by a general residuary clause in 
the will of the donee of the power. Stone v. Forbes, 189 
Mass. 163; Rowland v. Parker, 200 Mass. 204, 207; Shat- 
tuck V. Burrage, 229 Mass. 448, 450. In my opinion, there- 



2QQ OPINIONS OF THE ATTORNEY-GENERAL. 

fore, the property payable to the executors under the instru- 
ments passed by virtue of an exercise of the power of ap- 
pointment belonging to the deceased. 

3. It follows that if the property passing under the in- 
struments by virtue of the exercise of the power of appoint- 
ment is properly such as is taxable under G. L., c. 65, § 1, 
as amended by St. 1922, c. 403, when passing by the will 
of a non-resident, then that property is subject to tax. 
Whether it is such property depends upon the nature of 
the obligations under the instruments of the respective 
companies arising upon the death of the Ufe beneficiary. 

By the terms of the "Annuity in Trust" executed by the 
Massachusetts Hospital Life Insurance Company the obli- 
gation of that company on the death of the life beneficiary 
is merely to pay over the principal sum deposited, with 
accumulations of interest, and is not to distribute any por- 
tion of any trust fund. It is true that the return to the 
life beneficiary is computed by a pro rata apportionment of 
income received from all the property of the company, and 
that there are provisions with respect to the receipt of prin- 
cipal and income similar to those found in cases of so-called 
''spendthrift" trusts. But, on the other hand, there is no 
provision that the company shall receive, hold and invest 
the principal upon trust, the return to the beneficiary is 
denominated ''interest," and the obligation of the company 
on the death of the life beneficiary is not to pay over the 
principal with all increment which may have accrued to it, 
but merely to pay over the amount of the principal sum 
with accumulations of interest. Furthermore, the company 
is not empowered to do the business of a trustee, but is em- 
powered to make all kinds of contracts in which the casual- 
ties of life and interest of money are principally involved. 
See St. 1818, c. 130, § 6. These facts, in my opinion, show 
clearly that a trust was not intended to be created, thati 
there was no trust res to which a trust could attach, audi 
that no right in any specific property passed by the will of 



JAY R. BENTON, ATTORNEY-GENERAL. 101 

the deceased. See Foley v. Hill, 2 H. L. Cas. 28; Pratt v. 
Tuttle, 136 Mass. 233. 

The "Agreement of Trust" executed by the New England 
Trust Company, on the other hand, purports to create a 
trust. The principal is referred to as a trust fund, and the 
company agrees to pay the income to the hfe beneficiary, 
and on her decease to pay the principal and unpaid accumu- 
lations of income to her executor. It is provided that the 
company may invest the principal with other funds, and 
you state that in the present instance the principal was 
invested in its general trust fund. There is also a provision 
that on the termination of the trust the company may pay 
the principal fund by transferring a just and proportional 
part of the general fund or the value thereof in money. 
The amount to be paid over is not the amount of the prin- 
cipal when deposited, with .accumulations of income, but 
includes any increment or loss which may have accrued 
upon the investment of the principal with the general fund. 
The company by its charter (St. 1869, c. 182, § 3) was ex- 
pressly given the power to receive and hold moneys or 
property in trust. The principal seems to have been de- 
posited with the intention of establishing a trust, and the 
instrument should be construed as providing for the pass- 
ing by the will of the deceased of rights in specific property 
in which the principal was invested, unless some difficulty 
is presented by the provisions for the deposit of the princi- 
pal in a general trust fund and the provision that the prin- 
cipal may be paid over in money at the election of the 
company. 

4. There can be no doubt of the general principle that 
trustees should not ordinarily mingle funds of different 
trusts in one investment. McCullough v. McCullough, 44 
N. J. Eq. 313, 316; Perry on Trusts, 6th ed., § 463. But, 
on the other hand, where the parties to the creation of 
trusts have indicated an intention that the funds of the 
trusts shall be mingled, the trusts are not thereby defeated. 
See Parkhurst v. Ginn, 228 Mass. 159. Cf. Lowe v. Jones, 



102 OPINIONS OF THE ATTORNEY-GENERAL. - 

192 Mass. 94. The trust res in such a case is the whole 
trust fund, which is to be administered in such a way as to 
execute all trusts to which it is subject. 

5. The provision that the principal fund may be paid 
over by transfer of a part of the general fund or the value 
thereof in money, in my opinion, does not make the obliga-j 
tion of the company a debt rather than a trust obligation! 
to distribute specific property. It is a mere provision for ai 
accounting by the trustee. See Davis v. Colburn, 128 Mass.] 
377; Cathaway v. Bowles, 136 Mass. 54; Upham v. Draper \ 
157 Mass. 292. Prior to such settlement, in my opinion^ 
under this instrument there is a proportional interest in th( 
general trust fund passing by virtue of the power. 

6. I am therefore of the opinion that an interest in the 
fund of the New England Trust Company, by virtue of tht 
instruments executed with that company, passed under the 
will of the deceased non-resident, and is subject to tax; 
but that no taxable interest passed in the funds of the 
Massachusetts Hospital Life Insurance Company. 



Extradition — Fugitive from Justice — Physical 
Presence — Motive. 

Before the Governor of an asylum State can lawfully comply with the demand for 
extradition, he must find as a fact that the accused is a fugitive from justice. 

Physical presence in the demanding State at the time of the commission of the 
offence is necessary to constitute one a fugitive from justice. 

The accused cannot be surrendered upon a theory of constructive presence. 

The motive of the accused in leaving the demanding State is immaterial. 

To constitute one a fugitive from justice it is not necessary that he should have 
done within the demanding State every act necessary to complete the crime. 

To the You have referred to this department for examination 

Governor. '^ 

Aprn^g ^^^ report a requisition of the Governor of Connecticut, 

with accompanying papers, for the arrest and extradition 

of one , hereinafter called the defendant, 

an alleged fugitive from justice charged with the crime of 
manslaughter. 



JAY R. BENTON, ATTORNEY-GENERAL. 103 

The complaint accompanying the requisition charged, in 
substance, that the defendant was president and treasurer 
of a corporation which conducted a moving picture theatre 
in the city of New Haven; that on or about June 1, 1921, 
the defendant ordered certain alterations and installations 
made in the building; that these alterations and installa- 
tions were made in violation of the local ordinances; that 
on November 27, 1921, the defendant, knowing that the 
alterations were not made in accordance with the local 
ordinances, and knowing that the use of the building in its 
then condition was dangerous and unlawful, because of non- 
compliance with the ordinances, did, by his agents, give a 
public show in the theatre; and that fire occurred, and a 
member of the audience was fatally burned and died two 
days thereafter. 

The facts as agreed upon are as follows : — 

The defendant, during the whole of the time in question, was and still 
is a resident of the Commonwealth of Massachusetts, and was president 
and treasurer of a corporation which operated a theatre in New Haven. 
On or about June 1, 1921, the defendant was physically present in New 
Haven, and personally ordered that alterations and installations be made 
in the building. These alterations and installations were made after the 
defendant left Connecticut and while he was in Massachusetts. After 
the completion of the alterations and installations, the defendant was 
again in New Haven, during the month of August, 1921, and was in the 
theatre but did not inspect the alterations or installations. The theatre 
was used from that time up to and including November 27, 1921, when a 
fire occurred on the stage, made rapid progress throughout the building 
and destroyed it. A member of the audience was fatally burned and died 
as a result of his injuries shortly thereafter. It was conceded that the 
defendant was not physically present in New Haven on November 27, 
1921, and that he was in New Haven only on or about June 1, 1921, and 
once during the month of August, 1921. 

The State of Connecticut contends that the alterations 
and installations were made "in accordance with his general 
directions." The coroner for the County of New Haven, 
who held an inquest at the time, made a finding that a con- 
ference was held in New Haven on May 30, 1921, between 



104 OPINIONS OF THE ATTORNEY-GENERAL. 

the defendant, an agent of the corporation and a contractor; 
that at the conference "no definite plan was fixed upon" 
but that the defendant authorized his agent and the con- 
tractor to take the necessary steps for making the altera- 
tions, "leaving the practical details to their judgment"; 
and that the defendant directed the contractor "to take the 
necessary action with the building inspector to bring the 
proposed changes within his approval." 

In the light of the view subsequently expressed, the ques- 
tion whether the alterations and installations were made in 
accordance with the defendant's general directions or were 
made as the coroner found the facts becomes immaterial. 

The chief issue is whether or not the defendant is a fugi- 
tive from justice. U. S. Const., art. IV, § 2, provides that 
a person charged in any State with crime, who shall flee 
from justice, and be found in another State, shall, on de- 
mand, be delivered up to the State having jurisdiction of the 
crime. This provision of the Constitution is not self-exe- 
cuting, and requires the action of Congress in that regard. 
Keiitucky v. Dennison, 24 How. 66, 104; Hyatt v. Corkran, 
188 U. S. 691, 708. Congress did enact a statute, U. S. 
R. S., 1901, § 5278 (Comp. Stat, of U. S., 1916, § 10126), 
which provides, in part: — 

Whenever the executive authority of any State or Territory demands 
any person as a fugitive from justice, of the executive authority of any 
State or Territory to which such person has fled, and produces a copy of 
an indictment found or an affidavit made before a magistrate of any State 
or Territory, charging the person demanded witli having committed trea- 
son, felony, or other crime, certified as authentic by the governor or chief 
magistrate of the State or Territory Jrom whence the person so charged 
has fled, it shall be the duty of the executive authority of the State or 
Territory to which such person has fled to cause him to be arrested and 
secured, and to cause notice of the arrest to be given to the executive 
authority making such demand, or to the agent of such authority ap- 
pointed to receive the fugitive, and to cause the fugitive to be delivered 
to such agent when he shall appear. . . . 



1 



JAY R. BENTON, ATTORNEY-GENERAL. 105 

Before the governor of the asylum State can lawfully 
comply with the demand for extradition he must find as a 
fact that the accused is a fugitive from justice. Buddy's 
Case, 219 Mass. 548, 550; Ex parte Reggel, 114 U. S. 642; 
Roberts v. Reilly, 116 U. S. 80; Hyatt v. Corkran, 188 U. S. 
691. It is well established that the accused cannot be con- 
sidered a fugitive from justice if he was not physically with- 
in the demanding State at the time of the commission of the 
alleged offence. He cannot properly be surrendered upon 
the theory of a constructive presence. Buddy's Case, 219 
Mass. 548; Hyatt v. Corkran, 188 U. S. 691; Appleyard v. 
Massachusetts, 203 U. S. 222; McNichols v. Pease, 207 U. S. 
100; Strasshei7n v. Baily, 221 U. S. 280. To be a fugitive 
from justice it is not necessary that the accused should have 
left the demanding State with intent to flee from its justice. 
If he was in the demanding State at the time the offence was 
committed, and thereafter left, no matter for what purpose 
or with what motive nor under what belief, he is a fugitive 
from the justice of that State. Appleyard v. Massachusetts, 
203 U. S. 222; McNichols v. Pease, 207 U. S. 100; Bassing 
V. Cady, 208 U. S. 386. Nor is it necessary that the accused 
should have done within the State every act necessary to 
complete the crime. 

In Strassheim v. Baily, 221 U. S. 280, 285, the court 
said : — 

We think it plain that the criminal need not do within the State every 
act necessary to complete the crime. If he does there an overt act which 
is and is intended to be a material step toward accomplishing the crime, and 
then absents himself from the State and does the rest elsewhere, he be- 
comes a fugitive from justice, when the crime is complete, if not before. 
In re Cook, 49 Fed. Rep. 833, 843, 844. Ex parte Hoffstot, 180 Fed. Rep. 
240, 243. In re William Sultan, 115 No. Car. 57. For all that is neces- 
sary to convert a criminal under the laws of a State into a fugitive from 
justice is that he should have left the State after having incurred guilt 
there, Roberts v. Reilly, 116 U. S. 80, and his overt act becomes retro- 
spectively guilty when the contemplated result ensues. 



106 OPINIONS OF THE ATTORNEY-GENERAL. 

See also, Taft v. Lord, 92 Conn. 539. 

Ifc is conceded that the defendant was not in Connecticut 
on November 27, 1921, the date when the crime of man- 
slaughter is alleged to have been committed. He cannot, 
therefore, be considered a fugitive from justice unless his 
act in ordering the alterations and installations on or about 
June 1, 1921, or his presence in the theatre in August with- 
out inspecting the alterations or installations, or both, con- 
stituted an overt act which was, and was intended to be, 
a material step toward accomplishing the crime of man- 
slaughter. 

It is nowhere suggested that the defendant caused the 
fire to be set, or contemplated on the occasion of either of 
his visits to New Haven that a fire should be started. The 
complaint does not so charge or intimate. There is no 
direct causal connection between the violation of the local 
ordinances and the death of a spectator at the theatre. 
The death was neither a natural nor a probable consequence 
of such violation. It was caused by fire, for which the de- 
fendant was not responsible, and at a time when the de- 
fendant was not in New Haven and was not personally 
operating the theatre. The defendant's order to make alter- 
ations and installations in the building, even if they were 
made in violation of the local ordinances, was not a material 
step in the commission of the crime of manslaughter. 

Gross misconduct, gross negligence and wilful and un- 
lawful neglect of duty on the part of the defendant lie at the 
foundation of the charge of manslaughter against him. 
The fact, if it be a fact, that he violated the city ordinances 
is proper evidence on the question of negligence, but is not 
in itself one of the acts "which was, or was intended to be, 
a material step in accomplishing the crime" of manslaughter. 
Commonwealth v. Adams, 114 Mass. 323; Commonwealth v. 
Hawkiris, 157 Mass. 551. 

I am therefore of the opinion that the defendant was not 
in the State of Connecticut at the time of the commission 
of the crime of manslaughter, that he did not do any act 



JAY R, BENTON, ATTORNEY-GENERAL. 107 

within that State which was a material step in accomplish- 
ing that crime, that he therefore is not a fugitive from jus- 
tice, and that the request of the Governor of Connecticut 
for his extradition should be refused. 



On April 12, 1923, in compliance with an order adopted 
by the House of Representatives, the Attorney-General 
rendered an advisory opinion concerning the then status of 
the litigation involving the validity of the national bank 
tax, concerning the then status of the remedial legislation 
pending in Congress, and gave advice as to whether, pro- 
viding there was no change in the situation as it then existed, 
there was any legal bar to the collection of the national 
bank tax for 1923, and as to what was being done to pro- 
tect the interests of the Commonwealth and of the cities 
and towns therein, and what further action, if any, was 
desirable. As the advisory opinion was printed as House 
Document No. 1441 of 1923, it is therefore not reprinted 
here. 

Justice of the Peace — Notary Public — Residence 
IN Massachusetts. 

a person is ineligible for appointment as a justice of the peace or a notary public 
for Massachusetts unless he is a legal resident of Massachusetts. 

You have requested my opinion as to whether a person Q°v*'^rno, 
whose legal residence is outside of the Commonwealth may Aprfflo. 
be appointed a notary public or a justice of the peace for 
Massachusetts. 

The office of justice of the peace is one provided for in 
the Constitution (c. II, art. Ill; c. II, art. IX). It is a 
judicial office. Opinion of the Justices, 107 Mass. 604. 

Mass. Const. Amend. IV provides that "notaries public 
shall be appointed by the governor in the same manner as 
judicial officers are appointed." See Opinion of the Jus- 
tices, 165 Mass. 599. 

It would seem, with respect to the question of the neces- 



108 OPINIONS OF THE ATTORNEY-GENERAL. 

sity of residence within Massachusetts, that both offices 
stand upon the same footing as that, for example, of justices 
of the Supreme Court. No express requirement exists ii 
the case of judicial officers that they must be residents oi 
citizens of Massachusetts. That such a constitutional' 
qualification is to be found by implication, however, would 
hardly seem to admit of doubt. It can scarcely be ques- 
tioned, I think, that the constitutional offices of the Com- 
monwealth have always been and still are open solely to 
its own citizens. 

■ Article IX of the Declaration of Rights declares that 
''all the inhabitants of this commonwealth, having such 
qualifications as they shall establish by their frame of gov- 
ernment, have an equal right to elect officers and to be 
elected, for public employments." In Mass. Const., c. I, 
§ II, art. II, occur these words: — 

And to remove all doubts concerning the meaning of the word "in- 
habitant" in this constitution, every person shall be considered as an 
inhabitant, for the purpose of electing and being elected into any office, 
or place within this state, in that town, district, or plantation where he 
dwelleth, or liath his home. 

In commenting upon the significance of these declarations 
the Supreme Judicial Court has said {Opinions of the Justices, 
240 Mass. 601, 608): — 

The words "inhabitants" and "inhabitant" as thus used mean "citi- 
zens" and "citizen." All others who are not citizens are excluded from 
the scope of the meaning of those words. The words "inhabitants" and 
"inhabitant" have this meaning wherever used in the Constitution to 
describe the right to vote or to be elected to office. . . . 

From the express provision that none except "male inhabitants" or 
"male citizens" possessed the right to vote under the Constitution as 
well as from unbroken usage, arose the implication that men alone were 
eligible for election or appointment to offices created or recognized by the 
Constitution. . . . When the fundamental law is silent as to the qualifi- 
cations for office, it commonly is understood that electors and electors 
alone are eligible. Coole^^ Cons. Law (3rd. ed.), 285. State v. Smith, 
14 Wis. 497. Attorney General v. Abbott, 121 Mich. 540. State v. Van 



JAY R. BENTON, ATTORNEY-GENERAL. 109 

Beek, 87 Iowa, 569, 577. Except in the particulars already pointed out 
wherein definite qualifications are established as conditions of eligibility 
for office, there has been, under the Massachusetts Constitution and under 
Massachusetts custom equaUty among qualified voters as to eligibility 
for such offices as are recognized or created by the Constitution. 

In my opinion, therefore, a person is ineligible for ap- 
pointment as a justice of the peace or a notary pubUc for 
Massachusetts unless he is an inhabitant, i.e., a resident of 
Massachusetts; and the residence necessary for this pur- 
pose is the same as that necessary for citizenship, namely, 
a legal residence in the sense of a domicil in Massachusetts. 



Constitutional Law — An Act to ascertain the Will 
OF THE People — Eighteenth Amendment — Pub- 
lic Money. 

An act to ascertain the will of the people with reference to the Eighteenth Amend- 
ment to the Constitution of the United States, known as the "prohibition" 
amendment, and with reference to the Federal statute known as the "Volstead 
act," would be constitutional. 

Public money can be expended only for a public purpose. 

The erection of town houses in which the inhabitants may assemble has been uni- 
formly held to be a public purpose. 

The right of the people peaceably to assemble and to discuss public topics is not 
confined to public meetings. 

You have requested my opinion as to the constitutionality cpmmit?eTon 
of House Bill No. 314, entitled "An Act to ascertain the xhirdRLding. 
will of the people of Massachusetts with reference to the Apriik. 
Eighteenth Amendment to the Constitution of the United 
States and the enforcement thereof," which reads as fol- 
lows : — 

Section 1. There shall be submitted to the voters of each congres- 
sional district in the commonwealth at the next regular state election two 
questions which shall be printed in the following form on the official 
ballot to be used at such election: — 

1. Shall the senators from this commonwealth and the representative 
in congress from this district be requested to support a constitutional 
amendment to repeal the eighteenth amendment to the constitution of 
the United States known as the "prohibition" amendment? 



110 OPINIONS OF THE ATTORNEY-GENERAL. 

2. Shall the senators from this commonwealth and the representative 
in congress from this district be requested to support amendments of the 
federal statute known as the "Volstead act," in order to make legal the 
manufacture, transportation and sale of beer and wines having a limited 
alcoholic content? 

Section 2. The secretary of the commonwealth shall tabulate the 
returns of votes upon the aforesaid questions, and shall transmit copies 
of such returns by congressional districts to each senator and representa- 
tive in congress from this commonwealth. The vote under this act 
shall not be regarded as an instruction to said senators and representa- 
tives in congress, but shall be regarded as an expression of the opinion 
and will of the people of the several congressional districts of this com- 
monwealth upon said questions. 

By Mass. Const., c. I, § 1, art. IV, the Legislature is 
given full power and authority to make, ordain, and estab- 
lish, all manner of wholesome and reasonable orders, laws, 
statutes, and ordinances, directions and instructions, not 
repugnant or contrary to the Constitution, as they shall 
judge to be for the good and welfare of the Commonwealth. 
See also Stoughton v. Baker, 4 Mass. 522, 529; Common- 
wealth V. Alger, 7 Cush. 53, 101. 

Is the proposed act repugnant or contrary to the Consti- 
tution? Manifestly the bill, if enacted, will involve an ex- 
penditure of public money for printing the questions on the 
ballot and tabulating the returns of votes. Public money 
can be expended only for a public purpose. Lowell v. Bos- 
ton, 111 Mass. 454, Mead v. Acton, 139 Mass. 341; Wheelock 
V. Lowell, 196 Mass. 220; Salisbury Land & Improvement 
Co. V. Commonwealth, 215 Mass. 371 ; Whittaker v. Salem, 
216 Mass. 483; Duffy v. Treasurer and Receiver General, 
234 Mass. 42, 50. Unless the purpose of ascertaining the 
will of the people upon the proposed questions is a public 
purpose, the proposed bill, if enacted, would be unconsti- 
tutional. 

Article XIX of the Declaration of Rights provides : — 

The people have a riglit, in an orderly and peaceable manner, to as- 
semble to consult upon the common good; give instructions to their 



JAY R. BENTON, ATTORNEY-GENERAL. Ill 

representatives, and to request of the legislative body, by the way of 
addresses, petitions, or remonstrances, redress of the wrongs done them, 
and of the grievances they suffer. 

This has always been regarded as one of the most valuable 
rights of the people. 

Article XLVIII, II. Initiative Petitions, § 2, provides 
that the right of peaceable assembly shall not be the sub- 
ject of an initiative or referendum petition. The First 
Amendment of the Constitution of the United States pro- 
vides, in part, that Congress shall make no law abridging 
the right of the people peaceably to assemble and to peti- 
tion the government for a redress of grievances. 

Referring to article XIX of the Declaration of Rights, the 
court said, in Commonwealth v. Porter, 1 Gray, 476, 477: — 

This is recognized as a valuable right secured to the people by the 
constitution. . . . 

This, like the similar declarations of other rights, essential to a free 
government, is expressed in general terms; but it not only gives authority 
to the legislature, but makes it their bounden duty, to make suitable 
laws from time to time, as the exigencies of the times may require, for 
the protection and enjoyment of such rights. 

. . . Nothing more concerns the public good, than the election of 
good men, in aU respects qualified, to public offices. The extended and 
almost unlimited rights of suffrage, secured to the people of this common- 
wealth by the constitution and laws, assume and are founded on the right 
of voters, to have the fullest and freest discussion and consultation upon 
the merits and qualifications of candidates, for their information and the 
means of exercising a sound and enlightened judgment in regard to public 
men and political measures. 

See also Wheelock v. Lowell, 196 Mass. 220, 225. 
In Fuller v. Mayor of Medford, 224 Mass. 176, 178, the 
court said : — 

The purpose (of article XIX of the Declaration of Rights) in general is 
to enable the voters to have full and free discussion and consultation 
upon the merits of candidates for public office and of measures proposed 
in the public interests. Its importance in this respect is of the highest 
moment. 



112 OPINIONS OF THE ATTORNEY-GENERAL. 

The erection of town houses in which the inhabitants may 
assemble has been uniformly held to be a public purpose, 
for which public money might legally be expended. Whee- 
lock V. Lowell, 196 Mass. 220, and cases there cited. At 
page 227 the court said : — 

It is hard to overestimate the historic significance and patriotic in- 
fluence of the pubhc meetings held in all the towns of Massachusetts 
before and during the Revolution. No small part of the capacity for 
honest and efficient local government manifested by the people of this 
Commonwealth has been due to the training of citizens in the forum of 
the town meeting. The jealous care to preserve the means for exercising 
the right of assembling for discussion of public topics manifested in city 
charters by the representatives of the people, whenever providing for the 
transition from the town meeting to the city form of local government, 
demonstrates that a vital appreciation of the importance of the oppor- 
tunity to e.xercise the right still survives. The practical instruction of 
the citizen in affairs of government through the instrumentality of public 
meetings and face to face discussions may be regarded quite as important 
as their amusement, edification or assumed temporal advancement in 
waj^s heretofore expressly authorized by statute and held constitutional. 
Hubbard v. Taunton, 140 Mass. 467. Morrison v. Lawrence, 98 Mass. 
219. Kittredge v. North Brookfield, 138 Mass. 286. Commonwealth v. 
Williamstown, 156 Mass. 70. Kingman v. Brockton, 153 Mass. 255. 
Attorney General v. Williams, 174 Mass. 476. 

It is only by a continuance of intelligent, persistent and honest in- 
terest in the cause of good government on the part of the great majority 
of citizens that the permanency of our institutions can be secured. Only 
by the abiding constancy of such interest will intelligence triumph over 
impulse and indifference in public affairs. In no other way can a govern- 
ment by free men continue, which shall in fact preserve the blessings of 
liberty. 

The right of the people peaceably to assemble and to dis- 
cuss public topics is not confined to public meetings. Where 
public meetings are inadequate for an expression of opinion, 
the voter may be given an opportunit}^ to express his opinion 
through the medium of the ballot. 

In Fuller v. Mayor of Medford, 224 Mass. 176, the charter 
of the city of Medford provided that any question of pub- 
lic interest, upon request in writing of tweiit3'-five per cent 



JAY R. BENTON, ATTORNEY-GENERAL. 113 

of the qualified voters, might be placed upon the official 
ballot for a municipal election for the purpose of ascertain- 
ing the will of the people. The court in that case said, at 
page 179: — 

It may well have been thought that the machinery for the expression 
of an advisory opinion by the voters of a city at a public meeting was 
quite inadequate, in view of the inconvenience of gathering at a single 
hall a substantial proportion of the citizens, and that this should be 
supplemented by giving to any voter the privilege of expressing his view 
so that it wotdd be counted. Advisory expressions of public opinion 
participated in by large numbers of people may have been deemed lilcely 
to be a sufficiently strong incentive to action by city officers. It is no 
idle form to secure a definite conception in this form of what the people 
think on any subject of general interest. 

St. 1913, c. 819 (now G. L., c. 53, §§ 19-22), provides for 
the placing of questions of public policy upon the ballot, 
upon the fulfillment of certain requirements, for the pur- 
pose of instructing the members of the Legislature. St. 
1920, c. 560 (now G. L., c. 53, § 18), provides for ascertain- 
ing the will of the people under certain circumstances upon 
the question whether the ratification of an amendment to 
the Federal Constitution is desirable, by placing such ques- 
tion upon the official ballot. Both of these acts indicate 
the general tendency of legislation to ascertain the will of 
the people through the medium of the ballot instead of 
through public meetings, in view of the inconvenience of 
the latter in many instances under present conditions. 

The subject-matter of the questions to be submitted to 
the people under the proposed act is one of public interest, 
and affects the people generally. In Commonwealth v. 
Porter, 1 Gray, 476, 481 (1854), the court said: — 

The present case is that of a meeting of citizens assembled in the 
meeting-house for the discussion of the subject of temperance. This is 
a subject of great pubHc interest, and has, we know, attracted the earnest 
attention of the people of this commonwealth, especially with a view to 
legislative action. For aught that appears, this was a meeting of people, 
and a discussion of the subject of temperance, which actually resulted 



114 OPINIONS OF THE ATTORNEY-GENERAL. 

in a petition or remonstrance to the legislature, with a view to ameliorate 
or alter, or to retain and confirm, the existing law upon the subject of 
temperance, and, as such, a meeting held in strict conformity to the 
right secured by the constitution. 

The fact that the proposed act provides for an expression 
of opinion upon an amendment to the Federal Constitution 
and to a Federal statute does not affect or alter the situa- 
tion, since the question is one of public interest affecting 
the inhabitants of this Commonwealth. 

The Legislature has very frequently, through resolutions, 
memorialized Congress and urged it to enact or refrain from 1 
enacting legislation affecting the interests of the inhabi- 
tants of this Commonwealth, and has sent copies of such 
resolutions to each senator and representative in Congress 
from this Commonwealth. In recent years the following 
resolutions were adopted: 

1920. 

(1) Resolution protesting against the passage of a bill by 
Congress relative to the importation of lobsters. 

(2) Resolution urging Congress to pass an act repealing 
and removing all restrictions imposed for the duration of 
the war on freedom of speech, freedom of the press, and the 
right of the people peaceably to assemble. 

(3) Resolution requesting Congress to pass a bill author- 
izing the Secretary of Agriculture to establish a forest ex- 
periment station in the White Mountain National Forest. 

(4) Resolution expressing the hope that the ratification 
of the woman's suffrage amendment to the Federal Consti- 
tution would not further be delayed, and that every effort 
would be made by the legislators of the six remaining States 
to ratify the amendment immediately. 

(5) Resolution expressing the hope that Congress would 
pass a resolution deprecating any interference on the part 
of the United States in respect to controversies concerning 
the boundaries of Italy and prohibiting the use of Federal 
troops in territory claimed by Italy. 



JAY R. BENTON, ATTORNEY-GENERAL. 115 

1921. 

(1) Resolution stating that the General Court is in favor 
of the creation of a federal agency to regulate the production 
and price of coal. 

(2) Resolution urging Congress to reject all measures 
which depart from or infringe upon the traditional policy 
of the preservation of national parks. 

1922. 

(1) Resolution urging the members of Congress from this 
Commonwealth to use their influence with the Federal 
government to secure the transfer, for repairs, to the Boston 
Navy Yard of the steamship "Leviathan," property of the 
Federal government. 

(2) Resolution urging Congress to pass appropriate legis- 
lation to regulate further the use of narcotic drugs. 

(3) Resolution urging the Senate of the United States to 
pass the Dyer Anti-Lynching Bill, so called. 

(4) Resolution petitioning Congress to propose an amend- 
ment to the Federal Constitution which would give Congress 
the power to regulate the hours of labor of women and 
minors. 

1923. 

(1) Resolution favoring the passage by Congress of legis- 
lation placing an embargo on coal. 

(2) Resolution urging Congress to enact legislation which 
would provide adjusted compensation for men and women 
who served in the Army, Navy and Marine Corps of the 
United States during the World War. 

(3) Resolution favoring the passage of legislation to pro- 
vide for the preservation and protection of public records, 
and for the erection of a fireproof building at Washington 
to serve as a repository of all national archives. 

(4) Resolution entitled ''In favor of a large proportion of 
funds for work at the Boston Navy Yard," which requested 
the Navy Department to assign a large share of the work 
of the department to the Boston Navy Yard. 



116 OPINIONS OF THE ATTORNEY-GENERAL. 

In view of the foregoing, I am of the opinion that the ex- 
penditure of public money involved in the carrying of the 
proposed bill into effect would be a legal expenditure for a 
public purpose, and that the proposed bill, if enacted, would 
not be repugnant or contrary to the Constitution, and would 
be constitutional. 

You have further requested my opinion whether the pro- 
posed bill, if enacted, would be constitutional if changed in 
section 1 by striking out all after the word "act" in line 
fourteen and inserting in place thereof the words "so chang- 
ing its provisions, conformably to the Eighteenth Amend- 
ment to the Constitution of the United States, as to per- 
mit the manufacture, transportation and sale, for beverage 
purposes, of beer, wine and other beverages containing a 
greater percentage of alcohol than is at present permitted 
by said provisions." In my opinion, the proposed bill so 
changed, if enacted, would be constitutional. 



Public Work — Contract with Two or More Cor- 
porations, ACTING JOINTLY PARTNERSHIP. 

A contract for public work may not legally be made by the Commonwealth with 

two or more corporations, acting jointly. 
Two or more corporations may not enter into a partnership. 

To the Com- You state that "the low bid on a contract was presented 

missioner of 

P^]'j}^''3 Works. ^]^jg week by the Alco Contracting Company, Inc., and the 
Aprn26. Middlesex Construction Company, Inc., as joint bidders. 

We have not previously had occasion to execute a contract 
under conditions where two corporations were appearing as 
partners, and are not sure that such an arrangement would 
be legal," — and ask me two questions: — 

First: Can a contract legally be made between the Commonwealth 
and the Alco Contracting Company, Inc., and the Middlesex Construc- 
tion Company, Inc., acting jointly as parties of the second part? 

Second: If your reply to the first question is in the negative, can a 



JAY R. BENTON, ATTORNEY-GENERAL. 117 

contract legally be made with either of said corporations under their 
joint proposal of April 17, 1923? 

You further advise me that the board of directors of the 
Alco Contracting Company, Inc., on April 4, 1923, passed 
a vote, of which the following is a copy : — 

At a meeting of the Board of Directors of Alco Contracting Co., Inc., 
held this fourth day of April, 1923, all of the directors being present, Mr. 
Paul Caputo, President, Matthew Cummings, Treasurer, Andrew Di 
Pietro, it was 

Voted, That the Board of Directors be authorized to form a partner- 
ship with the Middlesex Construction Co., Inc., whenever in their judg- 
ment it is advisable in handling large contracts. 

A true copy. 

Attest: Matthew Cummings, Clerk. 

Also that the directors of the Middlesex Construction 
Company, Inc., passed a similar vote. 

I am further advised that in the proposal signed jointly 
by these companies the word "partnership" is not used; 
it being simply a proposal signed by both companies, pre- 
sumably by the proper officer of each. 

For reasons that will appear later, there seems to be no 
occasion for a precise and definite answer to your first ques- 
tion, but I deem it advisable to point out to you certain 
propositions of law in connection therewith. 

"It is familiar law that a corporation cannot enter into a 
partnership" (Willimns v. Johnson, 208 Mass. 544, 552), 
so that, if the entering into this contract generally by these 
corporations has the elements of a partnership, it may not 
legally be done, and such a contract would be ultra vires, 
and, if executed, unenforceable. Whether in this particu- 
lar case it does amount to a partnership obligation, I am not 
called upon to decide ; but I point out to you that apparently 
both companies felt they were entering into a partnership 
obligation, which is evidenced by the vote passed by each. 
Upon the facts in this particular case a court might well 
hold that the arrangement was a partnership matter, even 



118 OPINIONS OF THE ATTORNEY-GENERAL. 

though for a temporary purpose, and ultra vires. See Kelly 
V. Biddle, 180 Mass. 147, and the comment on that decision 
in Williams v. Johnson, supra, p. 552. 

There is some authority, however, holding that while a 
corporation may not enter into a partnership, it may enter 
into a joint venture. See Thompson on Contracts, 2d ed., 
§ 2337; Salem-Fairfield Telephone Association v. McMahon, 
78 Ore. 477. 

But there is no Massachusetts decision taking this view, 
and the language of the court in Williams v. Johnson, supra, 
p. 552, would seem to indicate that the Massachusetts court 
would hold that such a contract as this came within the 
condemnation of the rule laid down in that case. In so far, 
therefore, as an answer to your first question is necessary 
in view of the circumstances which have since been called 
to my attention, I advise you that such a contract should 
not be entered into by any department of the Common- 
wealth, in view of the cases above cited. 

I am further advised, however, that this particular bid 
is considered by your department as most advantageous to 
the Commonwealth; also, that one of the corporations in- 
volved is willing to waive any rights it may have in the bid 
and, so far as it may do so, assent to the awarding of the 
contract to the other corporation. I am also advised that 
this is a work in which it is not necessary, as a matter of 
law, for your department to advertise for bids; that it 
might award the contract without bids; and that it might 
reject all bids now and award the contract without calling 
for new ones. In the light of these facts, therefore, I come 
to the answer to your second question, and advise you that 
it would seem to rest within your sound discretion to grant 
this contract to one of the two corporations mentioned upon 
the terms as outlined in the proposal. In such case there 
should be a new proposal signed by the single company and, 
for the purposes of your record, a proper waiver by the 
other company of any right it may possibly have in the 
premises. In so deciding, I do not intend that any prece- 



JAY R. BENTON, ATTORNEY-GENERAL. 119 

dent be established or any rule of law laid down as authority 
for such course in a situation where the contract is required 
by law to be let on competitive bids after advertisement. 



Constitutional Law — Venue of Crimes — 
Jurisdiction — Vicinity. 

The word "vicinity," as used in article Xlll of the Declaration of Rights, is not 
synonymous with "county." 

Common law courts have inherent power to order a change of venue to secure an 
impartial trial. 

An act providing that a defendant shall not be discharged for want of jurisdiction 
if the prosecuting ofiBcer, before trial, petitions for leave to proceed, stating 
that he is in doubt as to the court's jurisdiction, and the court orders him to 
proceed, and the evidence at the trial discloses that the crime was committed 
without the county or territorial jurisdiction of the court, is constitutional. 

You request me to consider House Bill No. 1419, entitled 2°^*^rnc 
"An Act relative to the venue of crimes in general." .Aiay\. 

Article XIII of the Declaration of Rights provides : — 

In criminal prosecutions, the verification of facts, in the vicinity where 
they happen, is one of the greatest securities of the life, liberty, and 
property of the citizen. 

The word "vicinity," as used in that article, is not synon- 
ymous with "county," nor is the article affirmative of the 
right of a citizen to be tried in any particular county. 

In Commonwealth v. Parker, 2 Pick. 550, 553-554, the 
court said : — 

The word vicinity is not technical, with a precise legal meaning, as the 
word county or the ancient word visne, vicinage, would be held to be. 

And considering that the declaration of rights was framed by men well 
acquainted with the common law, as well as with the colonial and pro- 
vincial regulations and practice of Massachusetts, we may well presume 
that the use of a common and popular, instead of a technical word, in 
this article of the declaration, was not accidental. The form in which 
the principle is expressed is also worthy of consideration. It is not pro- 
hibitory of a trial of an offence, in any other county than that in which 
it happened; nor is it affirmative of a right in the citizen to be tried in 



120 OPINIONS OF THE ATTORNEY-GENERAL. 

any particular county. It is merely declaratory of the sense of the people, 
that the proof of facts in criminal prosecutions should be in the vicinity 
or neighbourhood where they happen. . . . 

... It may be considered questionable whether those who framed 
the bill of rights intended to tie the hands of the legislature, with the 
history of parliamentary proceedings before them, from which they could 
perceive the expediency, if not the necessity, of leaving the legislature 
without any other restriction than that which would be derived from re- 
spect to the declared sense of the people, that trials in the vicinity were 
always desirable, when they could be had there without great incon- 
venience to the public. It must have been known also, that the prin- 
ciple of the common law limiting the trials of crimes to the county within 
which they were committed, had been necessarily departed from by our 
ancestors in the early history of the country; for all capital felonies were 
cognizable only in the Court of Assistants, which court held its sessions 
only in Boston for the whole colony, and it was expressly ordained that 
the jurors attending this court should be summoned from the counties 
of Suffolk and Middlesex; so that in whatever other county a capital 
offence was committed, it was necessarily tried in the county of Suffolk. 
Vid. Ancient Charters and Col. Laws, &c., pp. 90, 144. 

After referring to several Colonial statutes, the court also 
said, at page 554 : — 

This being the state of things at the time of the adoption of the con- 
stitution, and the probable creation of new counties, whose population 
might not justify the sending of the Supreme Court into them, being 
probal)ly foreseen, it may well be supposed that the wise men who framed 
the declaration of rights, when they proposed to the people to declare, 
that in "criminal trials, the verification of facts in the vicinity where they 
happen, is one of the greatest securities of the life, liberty and property 
of the citizen," intended to hold out a caution to all future legislatures to 
regard this principle, in their laws concerning crimes and punishments, 
but not to prohibit them from causing trials to be had in adjoining coun- 
ties when the public interest should demand it. And that this has been 
the coniemporaneous, practical and uniform construction of this article by 
the legislature and courts of law, from the adoption of the constitution down 
to the present period, may be safely inferred from many statutes which have 
passed, and judicial decisions which have taken place, in relation to this 
subject. 

The court, after referring to various statutes enacted be- 
tween 1782 and 1795, providing for the trial of criminal 



JAY R, BENTON, ATTORNEY-GENERAL. 121 

cases outside of the county in which the crime had been 
committed, further said, at page 555 : — 

These frequent acts of the legislature abundantly show the public 
sense of the intention of the people in the declaration referred to; and the 
judicial trials which have taken place out of the county in which the 
offences were committed have been numerous. Until the recent act, 
giving the Court of Common Pleas, when sitting in the county of Nan- 
tucket jurisdiction of all crimes committed there, excepting such as are 
capital, all crimes committed there not cognizable by the Court of Gen- 
eral Sessions or the Court of Common Pleas, according to the former 
jurisdiction of these courts, have l)een tried before the Supreme Judicial 
Court in Suffolk. 

St. 1795, c. 81, provided that the Supreme Judicial Court 
holden at Boston, within and for the County of Suffolk, 
should have original jurisdiction and cognizance of all 
crimes committed in the County of Nantucket which were 
not cognizable by the Court of General Sessions there, and 
provided, further, that in capital cases only, if the defen- 
dant so requested, the court should issue a venire for at least 
six jurors from the County of Nantucket. 

R. S. (1836), c. 133, § 7, now G. L., c. 277, § 57, provided 
that any offence committed within one hundred rods of the 
dividing line between two counties might be prosecuted and 
punished in either county. In Crocker v. Justices of the 
Superior Court, 208 Mass, 162, the petitioners had been 
indicted for a felony, and the question was whether the 
Superior Court had jurisdiction to order a change of the 
place of trial from one county to another, if and when satis- 
fied that a fair and impartial trial could not be had within 
the county where the venue was laid in the indictment. 
The court held that that court had such jurisdiction, and 
said, at pages 174-175: — 

In the light of the history of our common law and the jurisdiction of 
our courts, we are of opinion that these statutes, so far as they empower 
a transfer in order to secure an impartial trial, are but declaratory of the 
common law arid confer no new power. . . . These statutes and this 



122 OPINIONS OF THE ATTORNEY-GENERAL. 

principle for securing an impartial trial in exceptional cases are in no way 
at variance with the general proposition of art. 13 of the Declaration of 
Rights as to the importance of the verification of fa6ts in the vicinity 
where they happen. 

The weight of opinion in those of the older Sta'tes, whose judicial his- 
tory is most nearly like our own, supports the view that it is an inherent 
power of common law courts to order a change for the purpose of securing 
an impartial trial. 

The court further said at page 179: — 

A court of general jurisdiction ought not to be left powerless under the 
law to do within reason all that the conditions of society and human 
nature permit to provide an unprejudiced panel for a jury trial. With- 
out such a power it might become impossible to do justice either to the 
general public or to the individual defendant. 

The proposed bill provides, in substance, that when the 
Attorney-General or the district attorney petitions to the 
court before proceeding with the trial of a criminal case for 
leave to proceed, stating that he is in doubt from the state 
of the evidence then in his possession as to whether or not 
the crime was committed within the county or territorial 
jurisdiction of the court, and the court, after hearing the 
petition, orders the trial to proceed, the defendant shall not 
be discharged for want of jurisdiction if the evidence as de- 
veloped at the trial discloses that the crime was committed 
without the county or territorial jurisdiction of the court. 
Such an act is one that public good and necessity require, 
and, without it, it might be difficult to do justice to the 
general public. 

The proposed bill is not, in my opinion, inconsistent with 
either the spirit or the letter of article XIII of the Declara- 
tion of Rights. I am therefore of the opinion that the pro- 
posed bill, if enacted, would be constitutional. 



jay k. benton, attorney-general. 123 

Constitutional Law — Intoxicating Liquors — 
Federal Permit. 

An act providing that no person shall manufacture, transport, import or export 
intoxicating liquors or certain non-intoxicating beverages unless he shall have 
obtained the Federal permit required therefor by the laws of the United 
States, is constitutional. 



Governor. 



You request me to consider House Bill No. 1433, entitled q°^^^j, 
"An Act relative to intoxicating liquors and certain non- ^ay^s 
intoxicating beverages," which reads as follows: — 

No person shall manufacture, transport by air craft, water craft or 
vehicle, import or export spirituous or intoxicating liquor as defined by 
section three, or certain non-intoxicating beverages as defined by section 
one, unless in each instance he shall have obtained the permit or other 
authority required therefor by the laws of the United States and the 
regulations made thereunder. 

Certain portions of the proposed bill were recommended 
by the Attorney General in his last annual report, on the 
unanimous request of the district attorneys and the district 
attorneys-elect of the various districts of the Common- 
wealth. 

By Mass. Const., c. I, § 1, art. IV, the Legislature is given 
full power and authority to make, ordain and establish all 
manner of wholesome and reasonable orders, laws, statutes 
and ordinances, directions and instructions, not repugnant 
or contrary to the Constitution, as they shall judge to be 
for the good and welfare of the Commonwealth and for the 
government and ordering thereof. Legislative power is 
thereby vested exclusively in the General Court, except so 
far as modified by the initiative and referendum amend- 
ment. It is a power which cannot be surrendered or dele- 
gated, or performed by any other agency. Graham v. 
Roberts, 200 Mass. 152; Boston v. Chelsea, 212 Mass. 127; 
Dinan v. Swig, 223 Mass. 516; Opinion of the Justices, 
239 Mass. 606. 

The question of the constitutionality of various provi- 
sions of law relative to intoxicating liquors (House Bill No. 



124 



OPINIONS OF THE ATTORNEY-GENERAL. 



1612 of 1921) was fully considered by the justices of the 
Supreme Judicial Court. Opinion of the Justices, 239 Mass. 
606. At page 610, the justices said: — 

It is attempted b}'- these sections and possibly by other sections to 
make the substantive law of the Commonwealth in these particulars 
change automatically so as to conform to new enactments from time to 
time made by Congress and new regulations issued pursuant to their 
authority by subsidiary executive or administrative officers of the United 
States. It purports to create offences and impose punishments therefor, 
not by definition and declaration, but by reference to what may hereafter 
be done in these particulars by the Congress of the United States and 
those by it authorized to establish regulations. 

We are of opinion that legislation of that nature would be contrary to 
the Constitution of this Commonwealth. 

At pages 611-612, the justices said: — 



By several sections of the proposed statute compliance with certain 
provisions of an act of Congress or valid regulations made pursuant to 
its authority is made a condition to the performance of conduct permitted 
by the proposed bill. Such conditions, even though the act of Congress 
may be changed, involve no modification of the law of Massachusetts. 
That stands as enacted. In this class fall §§ 11, 17, 19 and 23 of the 
proposed bill, which do not contravene any constitutional guaranty. 

Section 11 of the bill of 1921 provided, in part, that no 
license issued by the Board of Registration in Pharmacy 
should be valid unless the licensee was lawfully authorized 
by the laws of the United States, and the regulations made 
thereunder, to sell intoxicating liquors for medicinal pur- 
poses. Section 17 of that bill provided, in part, that no 
manufacturer or wholesale druggist should sell or otherwise 
dispose of any liquor except to persons having permits re- 
quired by the laws of the United States, and the regulations 
made thereunder, to purchase in such quantities. Section 
19 of that bill provided, in part, that a carrier should deliver 
liquor only to persons who present a verified copy of a per- 
mit to purchase, in the form required by the laws of the 
United States, and the regulations made thereunder. Sec- 



JAY R. BENTON, ATTORNEY-GENERAL. 125 

tion 23 of that bill provided, in part, that it was unlawful 
for any person to advertise liquor or the price at which it 
might be obtained, but that manufacturers and wholesale 
druggists holding permits to sell liquor, required by the 
laws of the United States, and the regulations made there- 
under, were not prohibited from furnishing price lists, with 
a description of the liquor for sale, to persons permitted to 
purchase liquor. 

The four foregoing sections, in the opinion of the justices, 
did not contravene any constitutional guaranty. VI Op. 
Atty. Gen. 179. 

The proposed bill provides that no person shall manu- 
facture, transport, import or export intoxicating liquors or 
certain non-intoxicating beverages unless in each instance 
he had obtained the permits or other authority required 
therefor by the laws of the United States, and the regula- 
tions made thereunder. 

Applying the test of constitutionahty, as defined in 
Opinion of the Justices, 239 Mass. 606, I am unable to dif- 
ferentiate the provisions of the proposed bill from the pro- 
visions of the four sections of the bill of 1921, which were 
held to be constitutional. 

There is no substantive difference between the bill now 
before me and the provisions of St. 1922, c. 427, § 1, sub- 
section 3 (an act to carry into effect, so far as the Common- 
wealth of Massachusetts is concerned, the Eighteenth 
Amendment to the Constitution of the United States). 
That there were no constitutional objections to those pro- 
visions was twice held by my predecessor. 

In view of the foregoing, I am of the opinion that the 
proposed bill, if enacted, would be constitutional. 



126 opinions of the attorney-general. 

Justice of the Peace — Notary Public — Tenure of 
Office — Removal from the Commonwealth. 

During the period for which a person is commissioned a justice of the peace or a 
notary public he is authorized, while in this Commonwealth, to act as such 
unless and until he has been removed by action of the Governor and Council, 
as provided by the Constitution, although he cannot act as such when outside 
the jurisdiction of the Commonwealth. 

A removal from the jurisdiction does not ipso facto terminate the tenure of office of 
a public official. 

se" retlry. ^^^ rcquest my opinion on the following facts : — 

1923 
May 10. 

Under date of July 3, 1918, a man residing in Somerville, Mass., was 
commissioned as a justice of the peace and a notary public by the Governor 
and Council. The commissions, under the Constitution, were to expire 
July 3, 1925. About September, 1920, he left Massachusetts and be- 
came a resident of Maine, where he continued to live for a year and a 
half, during which period of time he exercised the voting privilege in 
that state. About one year ago he returned to Massachusetts and re- 
sumed residence in the city of Somerville. 

Under the conditions referred to, can he now act as a justice of the 
peace and a notary public under the commissions of July 3, 1918, or is it 
your opinion that he must again be appointed by the Governor and Coun- 
cil so to act? 

Mass. Const., pt. 2d, c. Ill, art. I, as amended by Mass. 
Const. Amend. LVIII, provides as follows: — 

The tenure, that all commissioned officers shall by law have in their 
offices, shall be expressed in their respective commissions. All judicial 
officers, duly appointed, commissioned, and sworn, shall hold their offices 
during good behavior, excepting such concerning whom there is different 
provision made in this constitution: provided nevertheless, the governor, 
with consent of the council, may remove them upon the address of both 
houses of the legislature: and provided also that the governor, with the 
consent of the council, may after due notice and hearing retire them be- 
cause of advanced age or mental or physical disability. Such retirement 
shall be subject to any provisions made by law as to pensions or allowances 
payable to such officers upon their voluntary retirement. 

Mass. Const., pt. 2d, c. Ill, art. Ill, provides for the 
tenure of commissions of justices of the peace as follows: — 



JAY R. BENTON, ATTORNEY-GENERAL. 427 

In order that the people may not suffer from the long continuance 
in place of any justice of the peace who shall fail of discharging the im- 
portant duties of his office with ability or fidelity, all commissions of 
justices of the peace shall expire and become void, in the term of seven 
years from their respective dates; and, upon the expiration of any com- 
mission, the same may, if necessary, be renewed, or another person 
appointed, as shall most conduce to the well-being of the commonwealth. 

In an opinion from a former Attorney-General to His 
Excellency the Governor (VI Op. Atty. Gen. 371), it was 
stated : — 

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; lieutenant-governor, Mass. Const., 
pt. 2d, c. II, § II, art. I; councillors, Mass. Const. Amend. XVI; sena- 
tors, 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 requirement as 
to time of residence in Massachusetts before a person may become a 
justice of the peace or a notary public. 

There is likewise no provision in the Constitution or 
statutes that removal from this Commonwealth shall ipso 
facto terminate the commission of a justice of the peace or 
a notary public. That a removal from the jurisdiction does 
not ipso facto terminate the tenure of office of a public offi- 
cial is evidenced by the fact that it has been deemed neces- 
sary or advisable by the Legislature to enact a statute de- 
claring in certain cases that such removal shall terminate 
the office specified. For example, G. L., c. 41, § 109, pro- 
vides, in part, that ''if a person removes from a town he 
shall thereby vacate any town office held by him." I am 
aware of no similar provision of law respecting justices of 
the peace or notaries public. 

By the Constitution of the Commonwealth the office of 
justice of the peace is a judicial office. Opinion of the Jus- 
tices, 107 Mass. 604. While the office of notary public is 



128 OPINIONS OF THE ATTORNEY-GENERAL. 

not a judicial office, nevertheless, the Constitution provides 
(Mass. Const. Amend. IV) that "notaries public shall be 
appointed by the governor in the same manner as judicial 
officers are appointed and shall hold their offices during 
seven years." 

The Constitution, however, provides for the removal of 
justices of the peace and notaries public. Mass. Const. 
Amend. XXXVII, provides: — 

The governor, with the consent of the council, may remove justices 
of the peace and notaries public. 

It accordingly follows that during the period for which a 
person is commissioned a justice of the peace or a notary 
public he is authorized, while in this Commonwealth, to 
act as such unless and until he has been removed by action 
of the Governor and Council, as provided by the Constitu- 
tion, supra, although he cannot act as such when outside 
the jurisdiction of the Commonwealth. See V Op. Atty. 
Gen. 166. 



jay r. benton, attorney-general. 129 

Constitutional Law — Disposition of Land no longer 

ADAPTED TO PUBLIC USES PuBLIC ChARITY — IM- 
PAIRMENT OF Obligation of Contract — Cy Pres 
— Sale of Obsolete Property — Payment of Mon- 
eys received into State Treasury. 

Laud acquired by the Commonwealth by eminent domain or through expenditure 
of public funds, held strictly for public purposes and not subject to the terms 
of any gift, devise, grant, bequest or other trust or condition, is under the 
control of the General Court, and may be transferred to an agency of the 
State government or devoted to some other public use by legislative mandate. 

However, if land is subject to the terms of any gift, devise, grant, bequest or other 
trust or condition, the Legislature is not at liberty to dispose of the land or 
devote it to other purposes. 

If it has become impracticable to administer a charitable trust according to its 
terms, a court of equity will exercise its power to devise some method of ad- 
ministering the charity cy pres to accomplish substantially the same result. 

As an essential part of the duties of the Department of Public Welfare, it has the 
right to dispose, by sale, of dead and dying timber on land under its control. 

The moneys received from the sale of such timber must be paid into the State 
treasury, in compliance with Mass. Coast. Amend. LXIII, § 1. 

-IT- , • • . . , • r 1 To the Com- 

You request my opinion upon certain questions oi law missionerof 

1 Public WclffirG 

having to do with a tract of land in the town of Walpole, ^^923 
known as Robbins Farm, and under the control of your 
department. 

Your first question is based on the following set of facts. 
Chapter 101 of the Resolves of 1911 authorized the State 
Board of Charity, whose powers and duties your depart- 
ment has since taken over, to receive and hold on behalf 
of the Commonwealth the right, title and interest in the 
said Robbins Farm, and to maintain the same, and to use 

' it exclusively for and in connection with the care of minors. 
You state that your department is unable now to make any 

I satisfactory use of this property for the purpose for which 
it was given to the Commonwealth, and the cost of the 
caretaker is, in your opinion, an unwarranted expense. 
You state that the heirs are willing to take the property 
back or to have it sold and the proceeds applied, in pur- 
suance of the trust, to any other charity. You inquire 
whether or not your department has the power to dispose 
of the property. 



May 14. 



130 OPINIONS OF THE ATTORNEY-GENERAL. 

Land acquired by the Commonwealth, a city or a town 
by eminent domain or through expenditure of public funds, 
held strictly for public purposes and not subject to the terms 
of any gift, devise, grant, bequest or other trust or condi- 
tion, is under the control of the General Court. It may be 
transferred to some other agency of government or devoted 
to some other public use by legislative mandate. Up to 
1921 the question never had arisen, for express judicial de- 
termination in this Commonwealth, as to whether land once 
taken in fee for a public use could be sold and devoted to 
private uses when, through lapse of time or by reason of 
changed conditions, and under legislative authority, it had 
been decided that such land was no longer needed for public 
uses. By the case of Wright v. Walcott, 238 Mass. 432, it 
was decided that such a sale would be valid when authorized 
by the Legislature. As shown above, this does not hold 
where the land is subject to the terms of any gift, devise, 
grant, bequest or other trust or condition. The Robbins 
Farm, held by your department, is apparently subject to 
the terms of a trust, and if the charitable gift can be admin- 
istered according to the directions of the donor, in my 
judgment, the Legislature is not at liberty to dispose of the 
land upon considerations of policy or convenience. If it 
has become impracticable to administer this charitable 
trust according to its terms, it may well be that a court of 
equity will exercise its power to apply the doctrine of cy 
pres; that is, to execute the charitable trust as nearly ac- 
cording to the intent of the donor as circumstances will 
permit. 

Your second question arises out of the following set of 
facts. On this Robbins Farm there is standing timber which 
Chief Forester Cook, of the Department of Conservation, 
has reported to you is infested with gypsy moths, so that 
most of it is dead. You ask whether or not you have the 
power to cut this dead and dying timber and sell the same. 

I find no special provision authorizing the sale of property 
by your department, but there can be no question that, 



JAY R. BENTON, ATTORNEY-GENERAL. 131 

under your general powers, you have the right to dispose 
of such property as you can no longer utilize. Such a right 
is incidental to and is an essential part of the duties given 
to you for the proper management and conduct of the prop- 
erties under your control. These rights do not, however, 
confer upon you the right to expend the moneys received 
by you from the sale of such timber. Such moneys once 
received must be turned over to the Treasurer and Receiver 
General, in compliance with Mass. Const. Amend. LXIII, 
§ 1, which provides that "all money received on account of 
the commonwealth from any source whatsoever shall be 
paid into the treasury thereof." In addition, if you dispose 
of the aforesaid timber by sale, you should conform to such 
rules as the Commission on Administration and Finance has 
made affecting the "disposal of obsolete, excess and un- 
suitable supplies, salvage and waste material and other 
property," as provided by St. 1922, c. 545, § 12. 



132 opinions of the attorney-general. 

Constitutional Law — Taxation — Excise Tax — Tax 
UPON THE Sale of Gasoline for Consumption in 
THE Operation of Motor Vehicles upon the High- 
ways OF THE Commonwealth. 

House Bill No. 1520 imposes an excise tax upon the privilege of driving motor 
vehicles upon the public highways of the Commonwealth, and not upon the 
privilege of selling gasoline. 

An excise tax upon the privilege of driving motor vehicles upon the highways of 
the Commonwealth, which contains a provision that "no provisions of this 
chapter shall apply ... to interstate commerce, except in so far as the same 
may be permitted under the . . . constitution of the United States and the 
acts of congress," is not in contravention of either the Federal or the State 
Constitution. 

In an excise tax upon the privilege of driving motor vehicles upon the highways of 
the Commonwealth the amount of gasoline purchased for consumption in the 
operation of motor vehicles affords a fair criterion of the extent to which the 
highways are used, and the imposition of the tax upon the sale of gasoline for 
that purpose is a proper and convenient method of administration. 

Quaere, Whether an excise tax upon the privilege of selling gasoline generally would 
not be unconstitutional. 

A tax imposed upon the sale of gasoline for consumption in the operation of motor 
vehicles is not an import duty, within the prohibition of U. S. Const., 
art. I, § 10. 

Hous'p^of Rep- I have the honor to acknowledge the receipt of an order 
""T923*'^*'* of the House of Representatives in the following form : — 

May 14. 

Ordered, That the Attorney General be requested to furnish to the 
House of Representatives an opinion on the constitutionality of the bill 
to provide funds toward the cost of construction and maintenance of 
highways and bridges by means of an excise tax on gasoline and other 
fuel used for propelling motor vehicles over the highways of the Com- 
monwealth (House Bill No. 1520). 

Your inquiry requires consideration of pertinent provi- 
sions of both the Constitution of Massachusetts and of the 
United States. 

I. Has the Legislature the power, under the Constitution 
of Massachusetts, to pass an excise tax of the nature of the 
one under consideration? 

If the tax be viewed as one imposed upon the privilege of 
selling gasoline, the question is not free from doubt. 

Mass. Const., pt. 2d, c. I, § I, art. IV, provides: — 



JAY R, BENTON, ATTORNEY-GENERAL. 133 

And further, full power and authority are hereby given and granted 
to the said general court, ... to impose and levy proportional and rea- 
sonable assessments, rates, and taxes upon all the inhabitants of, and 
persons resident, and estates lying, within the said commonwealth; and 
also to impose and levy reasonable duties and excises upon any produce, 
goods, wares, merchandise, and commodities, whatsoever, brought into, 
produced, manufactured, or being within the same; . . . 

Prior to 1883 the court seemed inclined to construe very 
broadly the grant of power to levy excise taxes. In Port- 
land Bank v. Apthorp, 12 Mass. 252, 256, Chief Justice 
Parker expounded the significance of this clause of the 
Constitution in a paragraph which has since become classic. 
He said : — 

The term excise is of very general signification, meaning tribute, cus- 
tom, tax, tollage, or assessment. It is limited, in our constitution, as to 
its operation, to produce, goods, wares, merchandise and commodities. 
This last word will perhaps embrace everything, which may be a subject 
of taxation, and has been applied by our legislature, from the earliest 
practice under the constitution, to the privilege of using particular 
branches of business or employraent, as the business of an auctioneer, 
of an attorney, of a tavern keeper, of a retailer of spirituous liquors, &c. 

It must have been under this general term commodity, which signifies 
convenience, privilege, profit and gains, as well as goods and wares, 
which are only its vulgar signification, that the legislature assumed the 
right which has been uniformly and without complaint exercised for 
thirty years, of exacting a sum of money from attorneys, and barristers 
at law, vendue masters, tavern keepers and retailers. For every man has 
a natural right to exercise either of these employments free of tribute, 
as much as a husbandman or mechanic has to use his particular calling. 
The money required of them is not a proportional tax; nor is it an excise 
or duty upon produce, goods, wares or merchandise. It is a commodity, 
convenience or privilege, which the legislature has, by contemporaneous 
construction of the constitution, assumed a right to sell at a reasonable 
price: and by parity of reason it may impose the same conditions upon 
every other employment or handicraft. 

This statement appears to have been accepted as the true 
exposition of the meaning of the clause for many years. 
Commonwealth v. People's Five Cents Savings Bank, 5 Allen, 
428, 431. 



134 OPINIONS OF THE ATTORNEY-GENERAL. 

Under these decisions an excise tax could be imposed upon 
the exercise of a so-called "natural right" as readily as upon 
one created or subject to regulation by law. 

In 1883, however, the Supreme Judicial Court adopted 
a narrower view of the powers of the Legislature, and held 
that an act extending the excise tax previously laid on corpo- 
rations so as to include unincorporated companies with a 
capital stock divided into transferable shares was un- 
constitutional. Gleason v. McKay, 134 Mass. 419. 

The view put forward in Gleason v. McKay, supra, was 
severely criticized in the case of Minot v. Winthrop, 162 
Mass. 113, but appears to have been at least partially re- 
adopted in O'Keefe v. Somerville, 190 Mass. 110. 

In Opinion of the Justices, 196 Mass. 603, rendered in 1908, 
the question of the constitutionality of an act imposing a 
tax on sales of shares or certificates of stock in any domestic 
or foreign corporation or association was under consider- 
ation. A majority of the court held that such an act would 
be constitutional. The justices were divided in their 
opinion as to the true significance and effect of the earlier 
cases. Three of the justices were of the opinion that "the 
power of the General Court in imposing and levying an 
excise duty is not less extensive than that of Congress. 
Three dissented from this opinion, and held that the powers 
of the Massachusetts Legislature in this respect were 
narrower than those of Congress, and that an excise tax on 
the exercise of a purely natural right was unconstitutional. 
The present chief justice expressed the opinion that "al- 
though, speaking generally, the right to own property is 
absolute, the right to contract with reference to all sales 
of property is not equally absolute," and that a sale of an 
interest in an unincorporated association, when included in 
a legal, general classification, might be the subject of an 
excise tax. 

That Congress has the power to impose an excise tax 
upon the sale of a commodity seems clear. McCray v. 
United States, 195 U. S. 27. 



JAY R. BENTON, ATTORNEY-GENERAL. 135 

It is unnecessary, however, to hazard an opinion upon 
the point on which the court divided in Opinion of the Jus- 
tices, 196 Mass. 603, in order to answer the inquiry pro- 
pounded to me. Another Hne of reasoning suggests itself 
upon which, in my opinion, the validity of the proposed tax 
may be rested. 

Many features of the act suggest that the privilege upon 
which the excise is imposed is in reality the privilege of 
driving motor vehicles upon the public highways of the 
Commonwealth, rather than that of selling gasoline; and 
that a tax is imposed upon the sale of gasoline merely as 
a convenient method of administration, and because the 
amount of gasoline purchased affords a fair and workable, 
if rough, criterion of the extent to which the highways are 
used. 

The title of the act is significant, — "An Act to provide 
funds toward the cost of construction and maintenance of 
highways and bridges by means of an excise tax on gasoline 
and other fuel used for propelling motor vehicles over the 
highways of the Commonwealth." The "fuel" upon the 
sale of which the tax is nominally imposed is defined in 
section 1 by reference to its suitability for use in propelling 
motor vehicles. In the same section "purchaser" and "sale" 
are so defined as to include within the act the transfer of fuel 
by a distributor into his own motor vehicle. Section 7 
exempts from taxation sales of fuel subsequently consumed 
in any manner other than "in the operation of motor vehicles 
operated or intended to be operated over the highways of 
the commonwealth." Section 9 provides that the tax in 
every instance shall be borne by the purchaser; and that 
the exemption established by section 7 shall be effected by 
a rebate to the ultimate consumer, that is, the motorist, 
himself, not to the original distributor or to any middleman. 
Finally, by section 13 the entire net yield of the tax is to be 
credited to a "gasoline-highway fund," and expended for 
the construction, improvement and maintenance of public 
ways and highways. 



136 OPINIONS OF THE ATTORNEY-GENERAL. 

The power of the Commonwealth in the regulation of its 
own public ways is beyond question. Commonwealth v. 
Slocum, 230 Mass. 180; Burgess v. Mayor and Aldermen 
of Brockton, 235 Mass. 95. Viewed, therefore, as an excise 
tax, or toll, for the use of the public ways of the Common- 
wealth, the proposed act is, in my opinion, within the power 
conferred upon the Legislature by the C/onstitution of 
Massachusetts. 

The constitutionality of the State registration law, under 
which the tax is graded by reference to horse power, rests 
upon a similar principle. Hendrick v. Maryland, 235 U. S. 
610; Kane v. Titus, 81 N. J. L. 594, 598; Kane v. New 
Jersey, 242 U. S. 160, 168. 

The Constitution of the State of New Hampshire has no 
provision permitting the imposition of an excise tax; and 
it is beyond the constitutional power of the Legislature to 
impose any taxes other than "proportional and reasonable 
assessments, rates and taxes." State v. Express Co., 60 
N. H. 219; Curry v. Spencer, 61 N. H. 624. Yet the 
justices of the Supreme Court of New Hampshire have 
recently rendered an opinion based upon reasoning similar 
to that relied upon above, to the effect that "a gasoline tax 
collected from wholesalers on all sales of gasoline, with a 
provision for a rebate to consumers who use the gasoline 
for purposes other than the operation of automobiles," 
"amounts to the same thing, in substance, as a toll for the 
use of the highways, and may lawfully be imposed by the 
Legislature." Opinion of the Justices, 81 N. H. 552. 

The license required by section 2 appears to me an ap- 
propriate method of enforcing the proposed tax; one well 
adapted, at least, if not essential, to its efficient admin- 
istration, and unobjectionable, provided the tax itself, to 
which it is merely incidental, is one which the Legislature 
is competent to impose. Cf. Boston v. Schaffer, 9 Pick. 
415; Dewey v. Richardson, 206 Mass. 430. 

n. The proposed act gives to persons who buy fuel, as 
defined therein, on which an excise has been paid, and who 



JAY R. BENTON, ATTORNEY-GENERAL. 137 

consume the same "in any manner except in the operation 
of motor vehicles operated or intended to be operated 
over the highways of the commonwealth," a right to be 
reimbursed the amount of the excise, and "motor vehicle" 
is so defined as to except "boats, tractors used exclusively 
for agricultural purposes, and such vehicles as run only on 
rails or tracks." 

The question is presented whether these exemptions 
constitute an arbitrary discrimination and class legislation, 
in contravention of either the Federal or the State Consti- 
tution. 

In Connolly v. Union Sewer Pipe Co., 184 U. S. 540, a 
State anti-trust act excepting from its operation "agri- 
cultural products or live stock while in the hands of the 
producer or raiser," was held unconstitutional because it 
created an arbitrary discrimination and denied to others the 
equal protection of the laws. See V Op. Atty. Gen. 80. 
But this case has frequently been distinguished in more 
recent decisions of the Supreme Court of the United States, 
and the court has gone far in upholding classifications as 
reasonable, against attack on the ground of inequality or 
discrimination. International Harvester Co. v. Missouri, 
234 U. S. 199; Commonwealth v. Titcomh, 229 Mass. 14. 
If, as I have indicated, the proposed tax is to be regarded 
as a toll for the use of the highways of the Commonwealth, 
then, clearly, the exemption from tax of sales of fuel for 
other purposes is fully justified. 

III. The remaining question is whether in any other 
respect the proposed act conflicts with any provision of 
the Federal Constitution. 

U. S. Const., art. I, § 10, provides: — 

No state shaU, mthout the consent of the congress, lay any imposts 
or duties on imports or exports, except what may be absolutely necessary 
for executing its inspection laws. 

U. S. Const., art. I, § 8, provides: — 



138 OPINIONS OF THE ATTORNEY-GENERAL. 

The congress shall have power ... to regulate commerce with for- 
eign nations, and among the several states, and with the Indian tribes; 



In my opinion, the first of these provisions, that for- 
bidding any State to impose an import tax, is not violated 
by the proposed act. No tax is imposed upon the impor- 
tation of gasoline into the State. It may be imported freely, 
kept for any length of time, and used by the importer for 
any purpose other than the propulsion of a motor vehicle, 
without subjecting the importer to any tax liability. In 
short, the tax, in my opinion, is not in any true sense an 
import duty. 

So far as the question of possible encroachments upon 
Congress' power over interstate commerce, under section 
8 of article I, quoted above, is concerned, the act is carefully 
drawn to avoid any such difficulty. 

The sales forbidden by section 2 unless a license has first 
been procured by the distributor, are specifically restricted 
to exclude sales, the imposition of a tax upon which would 
be unconstitutional because a burden upon interstate 
commerce. 

As previously stated, any person who consumes fuel on 
which an excise has been paid, "in any manner except in 
the operation of motor vehicles operated or intended to be 
operated over the highways of the commonwealth," by section 
7 is entitled to be reimbursed the amount of the excise. 

Section 8 provides : — 

No provisions of this chapter shall apply or be construed to apply to 
international or interstate commerce, except in so far as the same may 
be permitted under the provisions of the constitution of the United States 
and the acts of congress. 

And section 12 establishes appropriate machinery for 
th6 enforcement of this immunity. That section provides : — 

The supreme judicial court shall have jurisdiction in equity to restrain 
the collection, upon any sale exempted by the constitution and laws of the 



JAY R. BENTON, ATTORNEY-GENERAL. 139 

United States, of the excise imposed by this chapter. Said bill shall be 
brought against the commissioner, whether the question of the collection 
of the excise is in the hands of the attorney general or pending before 
the board of appeal or is still in the hands of the commissioner. 

In view of these safeguards against encroachment upon 
the exclusive power which Congress possesses over inter- 
state conunerce, I am of the opinion that the proposed tax 
contravenes no provision of the Federal Constitution. 

It follows that, in my opinion, House Bill No. 1520 is 
within the power of the Legislature to enact and, if so en- 
acted into law, would be constitutional. 



Constitutional Law — Arbitrary Discrimination — 
Class Legislation — Marketing Contracts be- 
tween Co-operative Agricultural Associations 
and their members. 

A statute providing for the incorporation of co-operative agricultural associations 
without capital stock, authorizing the making of marketing contracts between 
such corporations and their members for the sale of their products for a cer- 
tain period of time exclusively to or through the corporation, and providing 
that such contracts should not be construed as in violation of the anti-trust 
laws contained in G. L., c. 93, §§ 1-7, unless they resulted in undue enhance- 
ment of prices, would not be unconstitutional as making an arbitrary discrimi- 
nation in favor of a particular class. 

You have transmitted to me for examination and report q^J!^^^ 
House Bill No. 1398, entitled "An Act to provide for the niy^fs. 
incorporation of co-operative agricultural associations with- 
out capital stock." 

The purpose of the bill, as its title and its provisions 
indicate, is to authorize the incorporation without capital 
stock of associations engaged in any kind of farming busi- 
ness, to provide for the management of such corporations 
by the members thereof and to limit the membership to 
persons engaged in the production of products handled by 
the corporation, to permit the making of marketing contracts 
between such corporations and their respective members 
"by which the members shall agree to sell, for any period 



ernor. 



140 OPINIONS OF THE ATTORNEY-GENERAL. 

of time not exceeding ten years, all or any specified part of 
their products or of certain specified products exclusively 
to or through the corporation or any agency designated 
by it," and to make such marketing contracts cfTective by 
authorizing the fixing of liquidated damages for breach 
thereof and by providing that the corporation may be en- 
titled to an injunction against a member for breach or 
threatened breach of the contract with reference to its pro- 
visions for sale or delivery of products. There is a 
provision that "such contract shall not be construed as a 
violation of any provision of sections one to seven, inclusive, 
of chapter ninety-three, unless it results in an undue en- 
hancement of the price of the product to which the contract 
applies," and that such corporation shall not be liable to 
prosection for any action, reasonable and proper, in the exer- 
cise of the rights conferred upon it by the act. There are 
further provisions imposing taxes on such corporations; and 
other provisions the object of which is to remove incon- 
sistencies in other parts of the General Laws. 

Some of the provisions of the proposed act in the form 
submitted by Your Excellency seem to me to be, if not 
actually unconstitutional, at least objectionable because in 
several respects they appear to run counter to the policy 
of our laws. Proposed amendments to the bill have been 
drafted which, in my opinion, if adopted, would cure the 
defects in the present bill which I have referred to. 

The proposed amendments do not, however, attempt to 
deal with the possible objection to the bill because of the 
provisions authorizing the making of marketing contracts 
between the corporations and their members and excepting 
such contracts from the operation of the anti-trust laws 
contained in G. Ij., c. 93, §§ 1-7. The question, therefore, 
must be considered whether this authorization and exception 
constitute an arbitrary discrimination and class legisla- 
tion, making the provisions unconstitutional. 

In Connolly v. Union Sewer Pipe Co., 184 U. S. 540, a 
State anti-trust act excepting from its operation ' 'agricultural 



JAY R. BENTON, ATTORNEY-GENERAL. 141 

products or live stock while in the hands of the producer or 
raiser" was held unconstitutional because it created an 
arbitrary discrimination and denied to others the equal 
protection of the laws. On the authority of this case, one 
of my predecessors held, in an opinion to the Governor under 
date of May 24, 1917 (V Op. Atty. Gen. 80), that an act 
was unconstitutional, the object of which was ''to prohibit 
combinations and monopolies to control prices of com- 
modities in common use," which contained a provision ex- 
cepting from its operation "agreements between farmers, 
or other persons engaged in agricultural or horticultural 
pursuits, relative to the sale of the products of their own 
farms." But the Connolly case has frequently been 
distinguished in more recent decisions of the Supreme Court 
of the United States, and the court has gone far in upholding 
classifications as reasonable, against attack on the ground 
of inequality or discrimination. International Harvester 
Co. V. Missouri, 234 U. S. 199; C. A. Weed & Co. v. Lock- 
wood, 266 Fed. 785, 791, 792; Commonwealth v. Titco7nb, 
229 Mass. 14, and cases cited. 

Indeed, Congress itself has excepted agricultural and other 
associations from the operation of anti-trust laws. Section 
6 of the Clayton Act (Act of October 15, 1914, c. 323, 38 
Stat. 731) provides that "nothing contained in the anti- 
trust laws shall be construed to forbid the existence and 
operation of labor, agricultural, or horticultural organ- 
izations, instituted for the purposes of mutual help, and not 
having capital stock or conducted for profit, or to forbid 
or restrain individual members of such organizations from 
lawfully carrying out the legitimate objects thereof; nor 
shall such organizations, or the members thereof, be held 
or construed to be illegal combinations or conspiracies in 
restraint of trade, under the anti-trust laws"; and by Act 
of February 18, 1922, c. 57, 42 Stat. 388, entitled "An Act 
to authorize association of producers of agricultural pro- 
ducts," Congress enacted that persons engaged in the 
production of agricultural products, including dairymen, 



142 OPINIONS OF THE ATTORNEY-GENERAL. 

may act together in associations, corporate or otherwise, 
in collectively marketing their products in interstate and 
foreign commerce and may make the necessary contracts 
to effect such purposes, with certain provisos, and subject 
to restraint by the Secretary of Agriculture and the courts, 
in case it appears that there is a monopoly or restraint of 
interstate commerce to such an extent that the price of 
an agricultural product is unduly enhanced by reason thereof. 
The constitutionality of those provisions, as far as I am 
aware, has not been questioned. 

In the proposed act the thing which is the subject of the 
excepting provisions is the marketing contract. This 
contract is merely an agreement between the corporation 
and a member by which the member agrees to sell for a 
certain period of time all of a specified part of his products 
exclusively to or through the corporation. At common 
law the legality of an agreement by which one person agrees 
to sell a product to another person exclusively seems to 
depend upon the reasonableness of the agreement in the 
light of the circumstances under which it is made and its 
purpose and effect. Unless it creates or tends to create a 
monopoly or results in an undue restraint of trade, such 
an agreement is valid. Central Shade Roller Co. v. Cushman, 
143 Mass. 353, 363; Meyer v. Estes, 164 Mass. 457, 464, 465; 
N. Y. Bank Note Co. v. Kidder Press Mfg. Co., 192 Mass. 
391, 403. 

In the absence of statute authorizing the making of such 
a contract its legality may also be affected by G. L., c. 
93, §§1 and 2. These sections are as follows: — 

Section 1. No person, firm, association or corporation doing business 
in the commonwealth, shall make it a condition of the sale of goods, 
wares or merchandise that the purchaser shall not sell or deal in the goods, 
wares or merchandise of any other person, firm, association or corpora- 
tion; but this section shall not prohibit the appointment of agents or 
sole agents for the sale of, nor the making of contracts for the exclusive 
sale of, goods, wares or merchandise. . . . 

Section 2. Every contract, agreement, arrangement, combination or 



JAY R. BENTON, ATTORNEY-GENERAL. 143 

practice in violation of the common law whereby a monopoly in the 
manufacture, production, transportation or sale in the commonwealth 
of any article or commodity in common use is or may be created, estab- 
lished or maintained, or whereby competition in the commonwealth in 
the supply or price of any such article or commodity is or may be re- 
strained or prevented, or whereby for the purpose of creating, establishing 
or maintaining a monopoly within the commonwealth of the manufacture, 
production, transportation or sale of any such article or commodity, the 
free pursuit in the commonwealth of any lawful business, trade or occu- 
pation is or may be restrained or prevented ; or wherebj'^ the price of any 
article or commodity in common use is or may be unduly enhanced within 
the commonwealth, is hereby declared to be against public policy, illegal 
and void. 

Section 1, however, would not be applicable because of the 
proviso that the making of contracts for the exclusive sale 
of goods, wares or merchandise is not prohibited. Common- 
wealth V. Strauss, 191 Mass. 545. Section 2 would be 
applicable only in so far as the contract might create or 
maintain a monopoly in dealings in the Commonwealth in 
the product, or might restrain competition in the Common- 
wealth in the supply or price of the product, or might restrain 
trade in the Commonwealth for the purpose of creating or 
maintaining such monopoly, or might unduly enhance 
within the Commonwealth the price of the product. Cf. 
Commonwealth v. North Shore Ice Delivery Co., 220 Mass. 55. 

The proposed act limits the exception from the operation 
of section 2 to cases where the marketing contract does not 
result in an undue enhancement of the price of the product 
to which the contract applies, and limits the corporation to 
exemption from prosecution only in so far as its action in the 
exercise of rights conferred by the act is reasonable and 
proper. Whether it is intended by the bill to permit the 
corporations which it authorizes to create and maintain 
monopolies in farming products, and incidentally to restrain 
competition in the supply and price of such products in the 
Commonwealth, does not clearly appear; but such monop- 
olies or restraints of competition, so long as they do not 



144 OPINIONS OF THE ATTORNEY-GENERAL. 

result in undue enhancement of prices, cannot seriously 
harm the pubUc. 

The question is not whether the marketing contracts 
authorized may not conceivably be such as to come under 
the ban of the common law or the anti-trust statute, but 
whether the provisions authorizing them are so arbitrary 
in their discrimination as to be constitutionally invalid. 
One may readily infer that the object of the bill in permitting 
organizations of farmers through which their products may 
be exclusively marketed is to enable the farmer to dispose 
of his products in a way which will be beneficial not only to 
the farmer, but, by encouraging him to greater production, 
to the community at large. Similar enactments, which 
apparently have not been challenged, have been passed by 
Congress, and I am informed in other States. I therefore 
advise you that the provision in question would not be un- 
constitutional as making an arbitrary discrimination in 
favor of a particular class. 

The provisions authorizing the making of marketing 
contracts do not expressly limit them to transactions merely 
in intrastate commerce. So far as appears, members of 
the corporations authorized to be formed may reside and 
do business in other States, and the marketing contracts 
for which the bill provides may affect interstate trade. Of 
course, the proposed act cannot make valid contracts in 
restraint of interstate trade and monopolies of such trade 
which are illegal by Federal law; nor would the act be 
construed as attempting so to do. But, while I am not 
called upon to decide that question, it seems that the Federal 
statutes to which I have referred expressly permit the 
organization of corporations and the making of marketing 
contracts such as are authorized by the bill. 



jay r. benton, attorney-general. 145 

Labor — Hours of Employment — Women and Children 
— Applicability of G. L., c. 149, § 56, to Laundries 
OF Private Boarding Houses and Hospitals — 
Eight-hour Day — Engineers — Laundries at 
State Hospitals. 

G. L., c. 149, § 56, limiting the hours of Labor of women and children applies to 
laundries of private boarding houses and hospitals, and the hours of employ- 
ment of women and children, regularly and exclusively employed therein, are 
limited as provided for in said § 56. 

The service of engineers employed in State hospitals, whose duties deal with fur- 
nishing power to laundries, is restricted to eight hours in any one day, and to 
forty-eight hours in any one week, except in cases of extraordinary emergency. 

You request my opinion on the following questions : — ^s8ion?r°of ' 



1 . Are laundries maintained in private boarding houses and in hospitals 
included within the requirements authorized by G. L., c. 149, § 56, or 
do such requirements apply only to laundries engaged in doing work for 
the general public? 

2. Are engineers employed in State hospitals, whose duties deal with 
furnishing power to laundries, restricted to eight hours in one day or 
forty-eight hours in a week, except in cases of extraordinary emergency? 

G. L., c. 149, § 56, as amended by St. 1921, c. 280, so far 
as it pertains to your first inquiry, provides as follows : — 

No child and no woman shall be employed in laboring in any factory 
or workshop, or in any manufacturing, mercantile, mechanical establish- 
ment, telegraph office or telephone exchange, or by any express or trans- 
portation company, or in any laundry, hotel, manicuring, or hair dressing 
estabUshment, motion picture theatre, or as an elevator operator, or as 
a switchboard operator in a private exchange, more than nine hours in 
any one day, . . . 

Statutes limiting the hours of employment of children 
were first enacted in 1842. This statute (St. 1842, c. 60) 
was limited to children under the age of twelve employed 
in laboring in any manufacturing establishment. In 1867, 
by St. 1867, c. 285, mechanical establishments were added, 
and in 1874 (St. 1874, c. 221) women were first included. 

As the avenues of employment for women and children 



Labor and 
Industrips. 

192.3 
May 1.5. 



146 OPINIONS OF THE ATTORNEY-GENERAL. 

expanded, the Legislature extended the scope of inhibitions, 
in 1913, so as to include any factory or workshop, any 
mercantile establishment, telegraph office or telephone ex- 
change, and any express or transportation company. St. 
1913, c. 758. Finally, in 1921, the statute was amended 
by adding the words: '^any laundry, hotel, manicuring or 
hair dressing establishment, motion picture theatre, or . . . 
elevator operator, or . . . switchboard operator in a private 
exchange." St. 1921, c. 280. 

Prior to the passage of the 1921 amendment to G. L., c. 
149, § 56, the Legislature recognized the need for regulation 
and inspection of conditions of employment in laundries 
by including them within its definition of the phrase "build- 
ings used for industrial purposes." St. 1912, c. 726, § 5. 

G. L., c. 149, § 17, provides as follows: — 

For the enforcement of the provisions of this chapter, the commissioner, 
the director of the division of industrial safety and inspectors may enter 
all buildings and parts thereof used for industrial purposes and examine 
the methods of protection from accident, the means of escape from fire, 
the sanitary provisions, the lighting and means of ventilation, and make 
investigations as to the employment of women and minors and as to com- 
pliance with all provisions of this chapter. 

G. L., c. 149, § 1, defines "buildings used for industrial 
purposes" as including "factories, workshops, bakeries, 
mechanical establishments, laundries, foundries, tenement 
house workrooms, all other buildings or parts thereof where 
manufacturing is carried on, and mercantile establishments 
as defined in this section." 

Your first inquiry raises the question as to whether the 
words "in any laundry," as used in St. 1921, c. 180, and the 
word "laundries," as used in the definition of the phrase 
"buildings used for industrial purposes" (G. L., c. 149, § 1), 
are limited to establishments primarily and exclusively 
conducted as laundries by way of trade, that is, as an in- 
dependent industry or business, or whether they can be 
said to include such establishments when maintained and 



I 



JAY R. BENTON, ATTORNEY-GENERAL. 147 

operated as subsidiary to and as an adjunct of some other 
business or commercial pursuit. 

In Duggan v. Bay State Street Ry. Co., 230 Mass. 370, 374, 
the court said : — 

It is a principle of general scope that a statute must be interpreted 
according to the intent of the makers, to be ascertained from its several 
parts and all its words construed by the ordinary and approved usage of 
the language, unless they have acquired a peculiar meaning in the law, 
considered in connection with the cause of its enactment, the subject- 
matter to which it appHes, the pre-existing state of the common and 
statutory law, the mischief or imperfection to be remedied, and the piain 
object to be accomplished, to the end that it be given an effect in harmony 
with common sense and sound reason. . . . 

The manifest purpose and intent of the Legislature in 
enacting these particular statutes were the limitation of 
the hours of employment of women and children, so as to 
protect them, because of their age and sex, from physical 
and moral dangers of certain occupations and certain places 
of employment, as enumerated therein; and to regulate and 
inspect certain places in which certain employment was 
carried on, because of the conditions under which the em- 
ployment was performed, in order to protect the employees 
engaged therein from danger to health, life and limb. 
Commonwealth v. Hamilton Mfg. Co., 120 Mass. 383; Com- 
monwealth V. Riley, 210 Mass. 387. 

A "laundry" is defined by the Standard Dictionary as — 
"An establishment or a room for washing and ironing 
clothes." Laundry work, i.e., washing and ironing, is the 
same whether performed for the general public or for a 
limited or particular group. The work may be just as 
arduous and confining, and the evils from long and continued 
hours of employment just as great, when performed in a 
laundry which is maintained and operated as subsidiary, 
or incidental, to some other principal commercial or in- 
dustrial enterprise, as in one whose sole and principal 
business is that of laundering. The same kind of apparatus 



148 OPINIONS OF THE ATTORNEY-GENERAL. 

and machinery may be, and generally is, in use in one as 
in the other. The same evil conditions may abound, and 
the same degree of effort must be employed. 

As a matter of fact, there are any number of private 
boarding houses or hospitals where, because of the number 
of persons residing or confined therein, the daily or weekly 
wash is larger, and the number of persons specially employed 
in the laundry attached to the private boarding house or 
hospital is much greater, than in many so-called public 
laundries, i.e., laundries which do washing and ironing for 
the general public. 

There can be no question but that the Legislature, in 
including laundries within the list of inhibitions, had in 
mind not the particular business carried on by them, but 
rather the nature and kind of employment performed therein 
and the conditions under which the employment was per- 
formed. As these are primarily the same in a laundry 
attached to a private boarding house or hospital, where 
the washing and ironing are done for the residents or in- 
mates thereof, as in a laundry engaged in doing work for 
the general public, I am of the opinion that laundries at- 
tached to private boarding houses or hospitals, in which 
the employees are regularly and exclusively employed in 
the performance of work therein, are included within the 
requirements authorized by G. L., c. 149, § 56, as amended, 
and that the hours of employment of women and children, 
regularly and exclusively employed therein, would be 
limited as provided for in said section 56. 

As to your second inquiry, G. L., c. 149, § 30, provides, 
in so far as it applies to your particular inquiry, as follows : — 

The service of all laborers, workmen and mechanics now or hereafter 
employed by the commonwealth ... is hereby restricted to eight hours 
in any one day and to forty-eight hours in any one week. No officer of 
the commonwealth . . . shall require or permit any such laborer, work- 
man or mechanic to work more than eight hours in any one day, or more 
than forty-eight hours in any one week, except in cases of extraordinary 
emergency. 



JAY R. BENTON, ATTORNEY-GENERAL. 149 

Section 36 of said chapter 149 provides : — 

Sections thirty, thirty-one and thirtj^-four shall not apply to the prepa- 
ration, printing, shipment and delivery of ballots to be used at a caucus, 
primary, state, city or town election, nor during the sessions of the general 
court to persons employed in legislative printing or binding; nor shall 
they apply to persons employed in any state, county or municipal insti- 
tution, on a farm, or in the care of the grounds, in the stable, in the do- 
mestic or kitchen and dining room service or in store rooms or offices. . . . 

The term "domestic" has a widely varying meaning. Its 
significance must be determined with reference to the subject- 
matter and the relation in which it appears. As used in 
said section 36, I am of the opinion that it was intended 
to apply only to that particular group or class of employees 
who perform such work or employment as is usually per- 
formed by domestics or house servants, men or women. 

Even if it were to be said that persons employed in the 
laundry of a State institution could be considered domestics, 
and therefore within the meaning of the term "domestic 
service," as used in said section 36, I am of the opinion 
that the term would still be limited to such employees as 
perform the principal and particular work carried on in a 
laundry, namely, washing and ironing, and that it would 
not include employees like engineers, whose duties deal 
merely with furnishing power to laundries, — work and 
employment which is clearly incidental to the operation 
of the laundry. 

I am therefore of the opinion that engineers employed 
in State hospitals, whose duties deal with furnishing power 
to laundries, are restricted to eight hours in one day, or 
forty-eight hours in one week, except in cases of extraor- 
dinary emergency. 



150 opinions of the attoeney-general. 

Marriages — Authority to Solemnize — Officers of 
The Salvation Army — "Ministers of the Gospel" 
— "Denomination" — "Ordained." 

The phrase "minister of the gospel," in G. L., c. 207, § 38, signifies one who ex- 
pounds a system of belief based, at least primarily, upon the teachings of 
Christ. 

The word "denomination," in G. L., c. 207, § 38, may be defined as a religious sect 
united upon a common creed or system of faith, which, if it holds that creed 
in common with other sects, is further distinguished from these by its belief 
in matters of polity or discipline. 

An ordained minister, in the sense in which the word "ordained" is employed in 
G. L., c. 207, § 38, is one who has been set apart as a public teacher of re- 
ligion according to the forms of the particular sect to which he belongs. 

An officer of The Salvation Army is not "a minister of the gospel, ordained accord- 
ing to the usage of his denomination," within G. L., c. 207, § 38, and is not 
authorized to solemnize a marriage within the Commonwealth. 

lecietary. ^ou havG askcd my opinion on a number of questions 

May^fs. involving the authority of certain persons to solemnize a 

marriage in this Commonwealth. 

The resolution of questions of fact is, of course, no part 
of the duty of this department, and my answers to the 
inquiries propounded by you are therefore based exclusively, 
in so far as questions of fact are concerned, upon data sup- 
plied by you. 

Authority to solemnize marriages within the Common- 
wealth is governed by G. L., c. 207, § 38, which provides as 
follows : — 

A marriage may be solemnized in any place within the commonwealth 
by a minister of the gospel, ordained according to the usage of his denomi- 
nation, who resides in the commonwealth and continues to perform the 
functions of his office; by a rabbi of the Israelitish faith, duly licensed by 
a congregation of said faith established in the commonwealth, who has 
filed with the clerk or registrar of the town where he resides a certificate 
of the establishment of tlie synagogue, the date of his appointment thereto 
and of the term of his engagement; by a justice of the peace if he is also 
clerk or assistant clerk of a town, or a registrar or assistant registrar, in 
the town where he holds such office, or if he is also clerk or assistant clerk 
of a court, in the city or town where the court is authorized to be held, 
or if he has been designated as provided in the following section and has 
received a certificate of designation and has qualified thereunder, in the 



JAY R. BENTON, ATTORNEY-GENERAL. 151 

town where he resides; and it may be solemnized among Friends or 
Quakers according to the usage of their societies; but no person shall 
solemnize a marriage in the commonwealth unless he can read and write 
the English language. 

The questions before me are exclusively questions of 
statutory interpretations. Whether authority to solemnize 
marriages should be given to others than those enumerated 
in the existing statute is, of course, for the Legislature alone 
to determine; and if at any time it deems it for the public 
good to do so, it can readily provide such authority by an 
amendment to the statute. 

Under the act in its present form, however, no person, 
other than a rabbi of the Israelitish faith, a justice of the 
peace, a Quaker or a member of the Society of Friends, is 
authorized to solemnize a marriage within the Common- 
wealth unless he possesses the following qualifications : — 
(1) He must be "a. minister of the gospel"; (2) he must be 
a member of some "denomination"; (3) he must have been 
''ordained" according to the usage of such denomination; 
(4) he must be a resident of Massachusetts; (5) he must be 
a minister of the gospel of whom it may fairly be said that 
he "continues to perform the functions of his office"; and 
(6) he must be able to read and write the English language. 

In my opinion, the phrase "minister of the gospel" im- 
ports a requirement that the person be one who expounds 
a system of behef based, at least primarily, upon the teach- 
ings of Christ. Attorney General v. Wallace, 7 B. Mon. 
(Ky.) 611. 

A "denomination" is technically a religious sect, and in- 
volves the idea of a common creed or system of faith. See 
State V. Township 9, 7 Ohio St. 64. It is thus defined in 
the New Standard Dictionary : — 

A sect or school having a distinguishing name; especially a body of 
Christians united by a common faith and form of worship and discipline. 

It may be that the distinguishing feature of a denomination 
is not its creed, which it may hold in common with other 



152 OPINIONS OF THE ATTORNEY-GENERAL. 

denominations, but its belief in matters of polity and 
discipline. See The Dublin Case, 38 N. H. 459, 543; Hale 
V. Everett, 53 N. H. 9, 92. But in any event, a denomination 
is a religious sect distinct from other sects in belief or in 
methods of discipline. See Lawrence v. Fletcher, 8 Met. 153, 
162. In my opinion, therefore, the word "denomination," 
as used in G. L., c. 207, § 38, may be defined as a religious 
sect united upon a common creed or system of faith which, 
if it holds that creed in common with other sects, is further 
distinguished from these by its belief in matters of polity 
or discipline. 

The verb "to ordain" is defined as follows in the New 
Standard Dictionary : — 

To appoint and consecrate or set apart for some special work ; specifi- 
cally, in church use, to invest with ministerial or priestly functions, 
with the laying on of hands or other ceremonies; as, to ordain a minister. 

An ordained minister is one who has been set apart as 
a public teacher of religion according to the forms of the 
particular sect to which he belongs. Londonderry v. 
Chester, 2 N. H. 268. The ordination of a minister has 
always been a proceeding of great importance and solemnity, 
and marks the entrance of the person ordained upon the 
profession of religious teaching. Kihhe v. Antram, 4 Conn. 
134, 139; Charleston v. Allen, 6 Vt. 633. It would seem that 
thereafter he can be removed from office only by due action 
of the constituted authorities of his denomination; and 
then, ordinarily, only upon the ground of an essential change 
of doctrine, or of a wilful neglect of duty, or of immoral or 
criminal conduct. Burr v. The First Parish in Sandwich, 
9 Mass. 277; Sheldon v. Congregational Parish in Easton, 
24 Pick. 281 ; Reformed Dutch Church v. Bradford, 8 Cowen, 
457. In the course of the opinion in the first case cited 
above, on page 298, it was said : — 

The consequence would be, either that the parish had no remed}' . . . 
or that they might dissolve the ministerial contract by their own vote, 



JAY R. BENTON, ATTORNEY-GENERAL. 153 

thus reducing the office of a minister to a mere tenure at will, which would 
be repugnant to the nature of the office. 

Two, at least, of the essential features of ordination would 
therefore appear to be the solemn and ceremonial nature of 
the proceeding, and the fact that its consummation insures 
thereafter a certain degree of permanency in office. See 
Buck: Mass. Ecclesiastical Law, c. VII. 
Turning now to the specific questions propounded by you. 

1. Are the officers of The Salvation Army ordained ministers, and 
have they authority to solemnize a marriage in this Commonwealth? 

The Salvation Army appears to be an organization formed 
upon a quasi-military pattern, for the revival of religion 
among the masses. It was founded in England by the 
Methodist evangelist, William Booth, about 1865, under 
the name of the Christian Mission; the present name and 
organization were adopted about 1878. ... Its work is 
carried on by means of processions, street singing, preaching, 
and the Uke, under the direction of officers entitled generals, 
majors, captains, etc. Besides its rehgious work, it en- 
gages in various reformatory and philanthropic enterprises. 
Its doctrines appear to bear a general resemblance to those 
common to all Protestant evangelical churches, and es- 
pecially to those of Methodism. 

Upon joining the organization a "recruit" signs what are 
called the ''Articles of War," some of which are as follows: — 

1. Having received with all my heart the Salvation offered to me by 
the tender mercy of Jehovah, I do here and now publicly acknowledge 
God to be my Father and King, Jesus Christ to be my Saviour, and the 
Holy Spirit to be my Guide, Comforter and Strength; and that I will, 
by His help, love, serve, worship and obey this glorious God through all 
time and through all eternity. 

2. BeUeving solemnly that The Salvation Army has been created by 
God and is sustained and directed by Him, I do here declare my full de- 
termination, by God's help, to be a true soldier till I die. 

3. I do here and now, and forever, renounce the world with all its 
sinful pleasures, companionships, treasures and objects, and declare my 



154 OPINIONS OF THE ATTORNEY-GENERAL. 

full determination boldly to show myself a soldier of Jesus Christ in all 
places and companies, no matter what I may have to suffer, do, or lose 
by so doing. 

4. And I do here and now call upon all present to witness that I enter 
into this undertaking of my own free will, feeling that the love of Christ, 
who died to save me, requires from me this devotion of my life to His 
service for the salvation of the whole world. 

The signing of these "Articles of War" is apparently ac- 
companied by appropriate ceremonies, and there are pre- 
scribed by "The Orders and Regulations for Field Officers" 
ceremonies for funerals and marriages, and for making of 
covenants, as, for instance, the "General Holiness Covenant" 
and the "War Covenant." There are, in addition, orders 
and regulations in great detail for the instruction and drill 
of the "soldiers" and for the conduct and behavior of the 
"field officer" in various situations and under different 
circumstances. 

It is unnecessary to decide whether The Salvation Army 
may properly be termed a "denomination," because I am 
of the opinion that an officer of that organization, authorized 
by it to solemnize marriages, is not "an ordained minister," 
within the meaning of the statute. Whatever title an 
officer of The Salvation Army may have to be considered 
an ordained minister would seem to be derived from his 
"commission." This is a document which sets forth that — 

I, , as Representative of, and on behalf of, the 

said General William Booth, do herebj^ appoint and officially commission 

our faithful and trusted comrade with the title 

of , to act for me and on behalf of the American 

Headquarters in all matters that are involved in the faithful, honorable 
and efficient discharge of that office, ever bearing in mind tlie furtherance 
and prosperity of the said Salvation Army. 

It further contains the following clause : — 

And further, it is fully understood and agreed that this Commission 
shall only remain in force so long as the holder of it carries out its provi- 
sions, and during my will and pleasure, and that the holder of the same 



JAY R. BENTON, ATTORNEY-GENERAL. 155 

faithfully promises to deliver it up whenever requested to do so by the 
said William Booth, General, his successor ... or other commissioner 
duly appointed by him, — when it shall become void, and the same is 
revocable at the pleasure of the said , such com- 
missioner, or his successor. 

The apparent lack of any solemn or ceremonial 
proceedings connected with the issuance of these com- 
missions, and more especially the fact that the officer so 
appointed apparently holds his office solely at the pleasure 
of the commanders of The Salvation Army, are, in my 
opinion, fatal to the claim that this method of commission- 
ing officers amounts to or is the equivalent of ordination. 
The conception that one man may at his pleasure ordain 
ministers, and, again, at his pleasure reduce them to lay- 
men, is, I believe, contrary to the whole idea of ordination 
as it was and is understood in this Commonwealth. 

2. What constitutes a denomination for the purpose of ordination of 
ministers who may perform a marriage in this Commonwealth? 

I have already stated my opinion upon this point while 
considering the general principles to be applied to the other 
more specific questions which you ask. 

3. Do pastors of unincorporated, independent religious bodies uncon- 
nected with any central governing body or conference, have authority to 
perform a marriage, within the meaning of G. L., c. 207, § 38? 

In the general form in which you state it, it is, I believe, 
impossible to answer this question "yes" or "no." There 
is nothing in the various facts supposed by you in your 
question which would, of itself, prevent such a religious 
body from being a denomination within the meaning of 
the statute. Each case, however, must be determined on 
its specific facts. Obviously, some form of organization, 
some established rules and some established usage must 
exist in order that it could be said that a representative of 
such a society was "a minister of the gospel ordained ac- 
cording to the usage of his denomination." 



156 OPINIONS OF THE ATTORNEY-GENERAL. 

4. Is an ordained clergyman who has resigned his pastorate and re- 
tired, but who occasionally officiates at funerals and like ceremonies, 
authorized to perform a marriage? 

5. Is an ordained clergjinan who has given up his pastorate to engage 
in business other than that connected with the ministry, but who some- 
times acts at funerals and like ceremonies, autliorized to perform a mar- 
riage? 

Your fourth and fifth inquiries may be considered together. 
In each the issue is the same : Can the clergyman in question, 
upon all the facts of the case, fairly be said to be one ''who 
resides in the Commonwealth and continues to perform the 
functions of his office?" In my opinion, it is not sufficient 
that he remain in good standing upon the records of his 
church. In addition, it must appear that he is in fact 
continuing to perform the functions of his office. The mere 
fact that he engaged in other pursuits would not, of course, 
prevent him from coming within the terms of the statute. 
In your fourth inquiry, however, you use the word "retired," 
and in your fifth inquiry the expression "who has given up 
his pastorate to engage in business." This would suggest 
that in neither case could it fairly be said that the clergy- 
man in question was continuing to perform the functions 
of his office. The issue is, however, in each whether this can 
or cannot fairly be said, in the light of all the concrete 
circumstances of that particular case. 



jay r. benton, attorney-general. 157 

Constitutional Law — Education — College — Degrees 
— Instruction by Professors of Institutions char- 
tered UNDER the IjAWS OF A FOREIGN StATE. 

The provisions of G. L., c. 266, § 89, prevent institutions chartered under the laws 
of a foreign State from coming into Massachusetts for the purpose of enrolling 
students to receive personal class instruction here for which degrees are offered, 
even though the instructors are visiting professors from the institutions in 
question. 

Such method of instruction is not interstate commerce within the principle laid 
down in the case of International Textbook Co. v. Pigg, 217 U. S. 91, and ac- 
cordingly constitutes doing business within this Commonwealth, and there- 
fore is subject to its laws. 



You request my opinion on the following questions : — 



To the Coni- 
missioner of 
Education. 
1923 

1. May institutions chartered under the laws of a foreign State come May is. 



into Massachusetts for the purpose of enroUing students to receive per- 
sonal class instruction here for which degrees are offered, even though 
the instructors are visiting professors from the institutions in question? 
2. Does this method of instruction come within the principle laid down 
in the case of the International Textbook Co. v. Pigg, 217 U. S. 91? 

G. L., c. 266, § 89, provides as follows: — 

Whoever, in a book, pamphlet, circular, advertisement or advertising 
sign, or by a pretended ^^Titten certificate or diploma, or otherwise in 
writing, knowingly and falsely pretends to have been an officer or teacher, 
or to be a graduate or to hold any degree, of a college or other educational 
institution of this commonwealth or elsewhere, which is authorized to 
grant degrees, or of a public school of this commonwealth, and whoever, 
without the authorit}^ of a special act of the general court granting the 
power to give degrees, offers or grants degrees as a school, college or as a 
private individual, alone or associated with others, shall be punished by 
a fine of not more than one thousand dollars or by imprisonment for not 
more than one year, or both. Any individual, school, a;ssociation, cor- 
poration or institution of learning, not having power to confer degrees 
under a special act of the general court, using the designation of "univer- 
sity" or "college" shall be punished by a fine of one thousand dollars; 
but this shall not apply to any educational institution whose name on 
July ninth, nineteen hundred and nineteen, included the word "univer- 
sity" or "college." 

A literal interpretation of this statute would seem to 
forbid any individual, school, association, corporation or 



158 OPINIONS OF THE ATTORNEY-GENERAL. 

institution of learning, not having the power to confer 
degrees under a special act of the General Court of this 
Commonwealth, from offering or granting degrees as a 
school, college or private individual, and would also seem, 
by its terms, to prohibit the use of the designation of "uni- 
versity" or "college" by any individual, school, association, 
corporation or institution of learning not having the power 
to confer degrees under a special act of the General Court, 
subject to the exception therein contained relative to an 
educational institution whose name on July 9, 1919, in- 
cluded the word "university" or "college." 

This statute has been construed in the case of Common- 
wealth V. New England College of Chiropractic, 221 Mass. 
190, wherein the court says: — 

Its obvious purpose is to suppress the kind of deceit which arises from 
the pretence of power to grant academic degrees, and to protect the pub- 
He from the evils likely to flow from that variety of misrepresentation and 
imposition. ... It aims to ensure to the people of the Commonwealth 
freedom from deception, when dealing with those who put forward pro- 
fessions of educational achievement such as ordinarily is accompanied 
by a collegiate degree from an institution authorized to grant it and to 
make certain that those who use such symbols have had the opportunity 
of being trained according to prevailing standards in some school of recog- 
nized standing, under teachers of reputation for learning. . . . 

The statute should be interpreted in the light of its design to effectuate 
its purpose so far as the words used reasonably construed permit of tliis 
result. 

I am accordingly of the opinion that your first question 
must be answered in the negative. 

The Supreme Court of the United States has decided, 
in the case of International Textbook Co. v. Pigg, supra, 
that where there was a continuous interstate traffic in text- 
books and apparatus for a course of study, pursued by means 
of correspondence, the movements in interstate commerce 
bring the subject-matter within the domain of Federal 
control, and exempt it from the burden imposed by State 
legislation. (See VII Op. Atty. Gen. 52.) In this respect 



JAY R. BENTON, ATTORNEY-GENERAL. 159 

the method of instruction outhned in your first question 
does not come within the principle laid down in the case of 
International Textbook Co. v. Pigg, supra, and would ac- 
cordingly constitute "doing business" within this Com- 
monwealth, and therefore be subject to its laws. See 
International Textbook Co. v. Connelly, 124 N. Y. Supp. 
603; International Textbook Co. v. Gillespie, 229 Mo. 397; 
International Textbook Co. v. Lynch, 81 Vt. 101; Inter- 
national Textbook Co. v. Peterson, 133 Wis. 302; Blumen- 
stock Brothers Advertising Agency v. Curtis Publishing Co. 
252 U. S. 436, and cases cited. 



Credit Unions — Small Loans — License. 

A credit union is not engaged in the business of making small loans, within the 
meaning of G. L., c. 140, § 96, and is not required to obtain a license from the 
Commissioner of Banks. 

You request my opinion upon the following question: visor^lu"oan" 

Agencies. 
1923 

Do credit unions fall within the provisions of the small loans act, and ^^^;yJJ- 
are they required to secure a license from the Commissioner of Banks, 
under G. L., c. 140, § 96? 

The act authorizing the incorporation of credit unions was 
approved May 21, 1909 (St. 1909, c. 419). Section 25 of 
said chapter provides, in part, that "the provisions of chapter 
six hundred and five of the acts of the year nineteen hundred 
and eight shall apply." St. 1908, c. 605, is an act entitled 
"An Act to regulate further the business of making small 
loans." Section 1 of that act provides: — 

No person, firm or corporation shall engage in the business of making 
small loans of two hundred dollars or less upon which a rate of interest 
greater than twelve per cent per annum is charged, and for which no 
security, other than a note or contract with or without an endorser is 
taken, without first obtaining a license for carrying on such business in 
the city or town in which the business is to be transacted. . . . 



160 OPINIONS OF THE ATTORNEY-GENERAL. 

Sections 2 and 3 of said chapter 605 regulate the amount 
of the loan and interest. 

Considering these two acts together, it is clear that the 
Legislature intended to require of credit unions the securing 
of a hcense before making loans, and to place a limitation 
on the amount of interest to be charged. 

From the opinion of the Attorney General to the then 
Supervisor of Loan Agencies dated August 16, 1912, to which 
my attention has been called, it appears that the Attorney 
General was of the opinion that credit unions were re- 
quired to secure a license under St. 1911, c. 727, § 3 (now 
G. L., c. 140, § 96), which provided: — 

No person, partnership, corporation, or association shall directly or 
indirectly engage in the business of making loans of three hundred dol- 
lars or less, . . . 

It also appears that that opinion was based upon the fact 
that St. 1909, c. 419, expressly made St. 1908, c. 605, ap- 
plicable to credit unions. But Gen. St. 1915, c. 268, en- 
titled "An Act relative to the incorporation and manage- 
ment of credit unions," repealed St. 1909, c. 419, and also 
St. 1914, c. 437, the latter chapter relating to rural credits. 
Gen. St. 1915, c. 268 (now G. L., c. 171 — Credit Unions), 
contains no provision, as did the statute of 1909, which in 
any way connects the small loans act with credit unions, 
unless it be G. L., c. 140, § 96 (St. 1911, c. 727, § 3), above 
referred to. 

The question presented, therefore, is: Is a credit union 
engaged in the business of making loans, and thereby 
required to secure a license? 

G. L., c. 171, § 5, provides: — 

A credit union may receive the savings of its members in payment for 
shares or on deposit; may lend to its members at reasonable rates, or 
invest, as hereinafter provided, the funds so accumulated; and may 
undertake such other activities relating to the purpose of the association 
as its by-laws may authorize. Section forty-eight of chapter one him- 
(Ired and seventy shall not appl}"" to credit unions. 



JAY R. BENTON, ATTORNEY-GENERAL. 161 

Section 13 provides that the directors shall determine the 
rate of interest on loans and deposits. Section 11 provides 
that the members shall fix the maximum amount to be loaned 
any one member. Section 11 also provides that the meiJi- 
bers may at any annual or special meeting review any decision 
of the credit committee or of a board of directors by a three- 
fourths vote of the members present and entitled to vote. 
Section 20 provides the amount of interest that may be 
charged on farm lands, but no limitation is placed upon 
other loans. Section 23 provides for a distribution of 
dividends among the members. A credit union can lend to 
members only. V Op. Atty. Gen. 40. 

It is significant that the former statutory provision that 
the small loans act should apply to credit unions was specifi- 
cally repeated in 1915. It is obvious that loans to members 
of a credit union will, in many instances, be $300 or less, 
but, in my judgment, such transactions cannot be construed 
as ''being engaged in the business of making small loans." 
A credit union is not carried on for profit. In fact, mone}^ 
earned is divided among the members in the way of divi- 
dends. 

In my opinion, the small loans act does not now apply to 
credit unions, and it follows that a license is unnecessary. 

I am also of the opinion that G. L., c. 140, § 114, does not 
include credit unions. 



Firearms — Minors — Rifle Clubs. 

Under G. L., c. 140, § 130, as amended by St. 1922, c. 485, § 8, rifle clubs made up 
of minors may be supplied with firearms and directed in their proper use by 
competent adult instructors, without violation of law. 

You state that the Ordnance Department, Massachusetts TotheAdju- 

^ _ -^ ' tant General. 

National Guard, is interesting itself in the organization of ^^^^fg 
junior rifle clubs, and you request information as to whether 
the formation of such rifle clubs, made up of minors, for 
target practice only, under responsible adult supervision, 



162 



OPINIONS OF THE ATTORNEY-GENERAL. 



in any way violates any existing law of this Commonwealth. 
G. L., c. 140, § 130, as amended by St. 1922, c. 485, § 8, 
provides as follows : — 

Whoever sells or furnishes to a minor under the age of fifteen, or to 
an unnaturalized foreign born person who has not a permit to carry fire- 
arms under section one hundred and thirty-one, any firearm, air gun or 
other dangerous weapon or ammunition therefor shall be punished by a 
fine of not less than ten nor more than fifty dollars, but instructors and 
teachers may furnish mihtary weapons to pupils for instruction and drill. 

I am accordingly of the opinion that under this statute 
such junior rifle clubs may be supphed with firearms and 
drilled in their proper use by competent adult instructors, 
without violation of law. 



To the Board 
of Conciliation 
and Arbi- 
tration. 
1923 
May 19. 



Board of Concilation and Arbitration — Jurisdiction 
— Middlesex & Boston Street Railway Company. 

The question whether an employer, by entering into an agreement with his em- 
ployees, had limited his right, as a matter of law, to discharge his employees, 
is a judicial question; and the Board of Conciliation and Arbitration has no 
jurisdiction, under G. L., c. 150, § 5, to take any action upon such question. 

You have requested my opinion as to whether the Board 
of Conciliation and Arbitration has jurisdiction to hear 
and consider certain matters under G. L., c. 150, § 5, relative 
to a controversy between the Middlesex & Boston Street 
Railway Company and its employees. You state that the 
facts are as follows: 

An agreement entered into between the company and its 
employees provides, in part, that whenever any questions 
arise which cannot be mutually adjusted they shall be 
submitted, at the request of either party, to a board of 
arbitration, to be selected in a certain manner. Prior to 
this agreement, the company had promulgated a rule 
relative to liability for collision of cars, which was posted 
on the company's premises and which provided that any 
person violating the rule would be discharged. The agree- 



JAY R. BENTON, ATTORNEY-GENERAL. 163 

ment made no reference to the rule. An employee was 
discharged by reason of a car operated by him colHding with 
another car, and a controversy arose relative to his discharge. 
The employees requested the company to submit the rule 
itself to arbitration, and the company refused. Under G. L., 
c. 150, § 5, the employees petitioned the Board of Concili- 
ation and Arbitration to give a hearing and make a decision 
upon the responsibility for the collision and upon the severity 
of the penalty. The company contends that the agree- 
ment was made in the light of the said rule and was modified 
by it, and that the board has no jurisdiction to consider 
the question whether the penalty imposed upon the em- 
ployee was too severe. 

The precise question upon which you request my opinion 
is whether the board has jurisdiction to give a hearing and 
make a decision upon the rule itself, assuming that the 
employee was responsible for the collision. 

G. L., c. 150, § 5, confers jurisdiction, under certain 
circumstances, upon the board to give a hearing and make 
a decision in a controversy "not involving questions which 
may be the subject of an action at law or suit in equity." 
This controversy involves the question whether the com- 
pany, by entering into an agreement with its employees, 
had limited its right as a matter of law to discharge its 
employees. That is a judicial question. 

I am therefore of the opinion that the controversy involves 
a question ''which may be the subject of an action at law 
or suit in equity," and that you have no jurisdiction to 
take any action with respect to the rule itself against the 
will of the company. 



May 21. 



164 opinions of the attorney-general. 

Constitutional Law — Police Power — Registration 
OF Dealers in Milk. 

The right of the Legislature, under the police power, to regulate the lawful business 
of individuals is subject to the limitations that it must be reasonable and not 
arbitrary, and that the regulation must be for the benefit of the public at large. 

The question whether a statute interfering with the right to carry on business is a 
proper exercise of the police power is subject to judicial review. 

A statute requiring persons engaged in the business of distributing milk to secure 
a rating by some credit agency, or to give a bond upon such terras as a State 
official may require, or to furnish a sworn financial statement of condition 
and to be subject to a public rating, as a prerequisite to doing business, would 
be unconstitutional, if enacted. 

clmmiueeln You Esk iiiy opinioii as to the constitutionality of House 
Agr^^uuure. g-j| ^^^ ggg^ entitled "An Act to require registration of 
contractors and dealers in milk." The bill proposes to 
amend G. L., c. 94, by inserting after section 39 a new 
section, called Section 39A, which is, in part, as follows : — 

All dealers and contractors engaged in the business of buying, handling, 
selling or delivering milk or cream, except producers who sell and deliver 
only milk produced by cows on their own farms, shall each year register 
with the commissioner of agriculture on or before the first day of Febru- 
ary. Every application for registration shall be made on a form furnished 
by the commissioner and shall be accompanied by either evidence satis- 
factory to the commissioner that the api^licant has a rating by a credit 
agency acceptable to said commissioner, or a bond in such terms and for 
such amount as the commissioner may require, or a sworn financial state- 
ment of the condition of the business of the applicant on the first day of 
January of the year for which the application is made. 

The section further provides that the information so sub- 
mitted shall be held confidential, that the Commissioner 
shall refuse to register an applicant until the requirements 
for registration have been met, and that the Commissioner 
shall annually send to the inspector of milk in each city 
and town a copy of the list of registered contractors and 
dealers in milk. The section continues : — 

. . . No inspector of milk shall issue any license under the following 
two sections to contractors or dealers except those whose names are in- 
cluded in the list furnished bv the commissioner. The commissioner 



JAY R. BENTON, ATTORNEY-GENERAL. 165 

shall prepare a rating list of those registered dealers and contractors not 
rated by any acceptable credit agency or not bonded, and shall furnish 
a copy of such list to any citizen upon application. . . . 



The section concludes with provisions for fines and penalties 
for failure to comply with the requirements of the section. 

The right to pursue any lawful occupation to obtain a 
livelihood is secured to every one under the Constitution 
of Massachusetts and the Constitution of the United States. 
This right, however, is subject to reasonable regulation by 
the State in the exercise of the police power, in the interest 
of the public health, the public safety, the public morals and, 
in a more limited sense, in the interest of the public welfare. 
This general principle has been affirmed in innumerable 
decisions. Commonwealth v. Alger, 7 Cush. 53, 84-86; 
Commonwealth v. Strauss, 191 Mass. 545, 553; Wyeth v. 
Cambridge Board of Health, 200 Mass. 474, 478; Deivey v. 
Richardson, 206 Mass. 430; Lawton v. Steele, 152 U. S. 
133, 136, 137; McLean v. Arkansas, 211 U. S. 539; Hall v. 
Geiger-Jones Co., 242 U. S. 539; 27 Harvard Law Review, 
297. 

There are many kinds of business the doing of which in 
this Commonwealth is regulated by statutes requiring 
persons engaged in the business to obtain a license from some 
public authority. Occupations so regulated include those 
of auctioneers (G. L., c. 100, § 2), transient vendors, hawk- 
ers and pedlers (G. L., c. 101, §§3, 22), brokers engaged 
in selhng securities (St. 1921, c. 499, § 8), physicians and 
others whose profession or occupation is closely connected 
with the public health (G. L., c. 112), innholders, keepers of 
intelligence offices, dealers in second-hand automobiles, 
pawnbrokers and persons engaged in the business of making 
small loans (G. L., c. 140, §§ 2, 42, 59, 70, 96), and insurance 
agents (G. L., c. 175, § 163). Such requirements have been 
sustained by a number of decisions of our court. Comni,o7i- 
wealth V. Roswell, 173 Mass. 119 (insurance agents); Com- 
monwealth V. Danziger, 176 Mass. 290 (pawnbrokers); 



166 OPINIONS OF THE ATTORNEY-GENERAL. 

Commonwealth v. Hana, 195 Mass. 262 (pedlers) ; Common- 
wealth V. Porn, 196 Mass. 326, 329 (physicians); Dewey 
V. Richardson, 206 Mass. 430 (makers of small loans). See 
also Brazee v. Michigan, 241 U. S. 340 (employment agen- 
cies); Hall V. Geiger-Jones Co., 242 U. S. 539 (dealers in 
securities). Dealers in milk are now required, for the 
protection of the public, to obtain a license to sell milk 
(G. L., c. 94, § 40). Such a requirement is clearly consti- 
tutional. Cf. Commonwealth v. Titcomb, 229 Mass. 14. 

In a few instances our statutes require persons engaged 
in certain occupations to give bonds for the protection of 
the public. Requirements of that sort are to be found in 
statutes relating to collection agencies (G. L., c. 93, §§ 24, 
25), pilots (G. L., c. 103, § 14), public warehousemen (G. L., 
c. 105, §§ 1, 3) and private bankers (G. L., c. 169, §§2, 3). 
A statute of the State of New York requiring persons en- 
gaging in the business of receiving deposits of money for 
safe keeping or for transmission to obtain a license and give 
a bond was upheld in Engel v. O'Malley, 219 U. S. 128. 

There seem to be two limitations upon the right of the 
Legislature, under the police power of the State, to regulate 
the lawful business of individuals. The first of the two 
limitations is that the statute must have been passed as a 
reasonable and appropriate exercise of the police power, 
and must not be an arbitrary interference with the right 
of the individual to do business. Commonwealth v. Strauss, 
191 Mass. 545, 553; Wyeth v. Cambridge Board of Health, 
200 Mass. 474; Opinion of the Justices, 220 Mass. 627; 
Lochner v. New York, 198 U. S. 45, 56; McLean v. Arkansas, 
211 U. S. 539; Smith v. Texas, 223 U. S. 630; Adams v. Tan- 
ner, 244 U. S. 590. The second of the two limitations is that 
the regulation must be for the benefit of the public at large. 
Commonwealth v. St7'auss, 191 Mass. 545, 553; Opinion of 
the Justices, 220 Mass. 627, 632. In the former case the 
court said : — 



JAY R. BENTON, ATTORNEY-GENERAL. 167 

The question is whether, at the time of the passage of this statute, 
there were conditions actually existing or reasonably anticipated which 
called for such legislative intervention in the interest of the general public. 

The rule that the police power of a State is subject to the 
two limitations stated is clearly enunciated in the case of 
Lawton v. Steele, 152 U. S. 133, 137, in the following language: 

To justify the State in thus interposing its authority in behalf of the 
public, it must appear, first, that the interests of the public generally, as 
distinguished from those of a particular class, require such interference; 
and, second, that the means are reasonably necessary for the accomplish- 
ment of the purpose, and not unduly oppressive upon individuals. The 
legislature may not, under the guise of protecting the public interests, 
arbitrarily interfere with private business, or impose unusual and un- 
necessary restrictions upon lawful occupations. 

The question whether a statute interfering with the right 
to carry on business is a proper exercise of the police power 
is subject to judicial review. Wyeth v. Cambridge Board of 
Health, 200 Mass. 474; Lawton v. Steele, 152 U. S. 133, 137; 
Lochner v. New York, 198 U. S. 45, 56, 57; Adams v. Tanner, 
244 U. S. 590, 596. 

An exception to the general rule that a restriction of the 
right to carry on a lawful occupation must be for the benefit 
of the general public seems to be made in Engel v. O'Malley, 
219 U. S. 128. The court there held that the statute was 
constitutional, although passed, apparently, for the benefit 
of a particular class, that class being ignorant and helpless 
depositors, largely foreign, and peculiarly in need of pro- 
tection by the Legislature. The court said (pp. 136, 
137) : — 

The (/Masi'-paternal relations shown in argument and by documents to 
exist between those following the plaintiff's calling and newly-arrived 
immigrants justifies a supervision more paternal than is needed in ordi- 
nary affairs. 

In my judgment, no general principle by which different 
classes of the community may be singled out for special 
benefits is to be deduced from this case. 



168 OPINIONS OF THE ATTORNEY-GENERAL. 

Milk dealers are already required to take out licenses, 
issued by milk inspectors, for the protection of the general 
public from danger of impure milk. The obvious purpose 
of the proposed statute is to impose further restrictions 
upon dealers for the protection of producers of milk by 
paternalistic provisions requiring persons engaged in the 
business of distributing milk to secure a rating of some 
credit agency, or to give bonds the conditions of which are 
entirely within the discretion of the Commissioner, or to make 
statements disclosing the condition of their business and then 
to be subject to a public rating by the Commissioner. If 
such requirements are constitutional, they may be appHed 
to many industries carried on in the Commonwealth. They 
are not for the benefit of the community at large, but for 
the class of milk producers only. 

A somewhat similar statute enacted by the Legislature 
of the State of Maine was held to be unconstitutional in 
State V. Latham, 115 Me. 176. The court there held a 
statute, requiring persons purchasing cream or milk for the 
purpose of reselling or manufacturing into other products to 
pay the producers semimonthly, to be unconstitutional. 
They said it gave the milk producer a strong club to aid in 
the collection of debts which is not given to other creditors, 
that there was no reasonable ground of discrimination 
between producers of milk and producers of hay, potatoes, 
oats or other products; that grocery men and dealers in 
dry goods might with equal reason be given similar aid in 
collecting their bills; and that the statute was class legis- 
lation, with discriminations not based upon any real dif- 
ference in situation or condition. 

I am of opinion that these considerations are equally 
appUcable to the bill before me. If, for the benefit of the 
milk producers, milk dealers should be required to furnish 
information as to their financial standing, or a bond, then 
there is no reason why similar disclosures and undertakings 
should not be given by dealers in other commodities for 
the benefit of producers and manufacturers. Such requii'e- 



JAY R. BENTON, ATTORNEY-GENERAL. 169 

ments, however, would in large measure hamper the doing 
of lawful business and arbitrarily restrict persons in their 
right to carry on such business. In my opinion, such 
restrictions are outside the Hne of what is permissible. 

The bill may be criticized also because it makes no pro- 
vision whatever as to the amount of the bond and the con- 
ditions under which it is to be given, and because the other 
requirements could not be met by any person not having 
an established business. I do not, however, base my 
ruling on these objections to the proposed measure, but on 
the fundamental objections which I have stated. 



Constitutional Law — Delegation of Legislative 
Powers to Administrative Officials — Unfair Dis- 
crimination — Regulation of Dealers in Milk 
AND Cream. 

An act authorizing the secretary of the Department of Agriculture to make such 
rules and regulations as he sees fit for dealers in milk and cream, without other 
limitation upon the power delegated than that such rules and regulations should 
be "in the interest of the public health and welfare," would amount to a dele- 
gation to an administrative official of the power to enact legislation, and would 
be contrarj' to the Constitution of Massachusetts. 

An act for the regulation of dealers in milk and cream, that applies only to dealers 
"who buy, purchase, receive or collect said milk or cream to be sold, delivered 
or exposed for sale at a point more than six miles from the point of collection 
or receipt or purchase," makes an unreasonable and arbitrary discrimination, 
which would render the act unconstitutional. 

An act, the dominant purpose of which is to impose restrictions upon milk dealers 
for the financial protection of milk producers, by requiring the former to secure 
a license and give a bond, the terms of which are wholly within the discretion 
of an administrative official, would be unconstitutional: that purpose being 
one which it is beyond the constitutional powers of the Legislature to effec- 
tuate. 

There has been transmitted to me a copy of the order House^of Rep- 
adopted by the House of Representatives requesting my resenutives. 
opinion as to whether House Bill No. 334, if enacted into ^^Ll^. 
law, would be constitutional. In my opinion, it would not. 

The bill is in the following terms : — 



170 OPINIONS OF THE ATTORNEY-GENERAL. 

An Act to authorize the Secretary of the Department of Agri- 
culture TO MAKE Rules and Regulations in Regard to the 
Collecting, Receipt and Purchase of Milk or Cream in Cer- 
tain Instances. 

Section 1. The secretary of the department of agriculture shall 
make and issue rules and regulations to all dealers in milk or cream, who 
buy, purchase, receive, or collect said milk or cream to be sold, delivered, 
or exposed for sale, at a point more than six miles from the point of col- 
lection or receipt or purchase. 

Section 2. The secretary of the state board of agriculture may make 
such examination as he deems fit, into the financial responsibilities of 
dealers of milk or cream who come under the provisions of this act. And 
shall by the issuing of a license, or permit to do business, or the requiring 
of a bond, secure the obedience to such rules and regulations as he may 
make in the interest of the public health and welfare. 

Section 3. Any person, firm, partnership or association who shall 
collect, receive, or buy, cream or milk, the same to be sold, delivered, or 
exposed for sale, at a point not less than six miles from the point of col- 
lection, receipt or purchase, who has not first received from the secre- 
tary of the state board of agriculture such license or permit, as the sec- 
retary may demand, shall forfeit a sum not to exceed five hundred dollars 
for each offence. 

The bill purports to give to the secretary of the Depart- 
ment of Agriculture what appears to be undefined and almost 
unlimited power to "make such rules and regulations" as 
he sees fit, for dealers in milk and cream. No limitation 
is imposed upon his discretion beyond the provision con- 
tained in the last sentence of section 2, that the rules and 
regulations made by him shall be "in the interest of the 
public health and welfare." 

The power to enact laws is vested exclusively in the 
General Court, except so far as modified by the initiative 
and referendum amendment, and cannot be surrendered 
or delegated to any other agency. Wyeth v. Cambridge 
Board of Health, 200 Mass. 474, 481 ; Opinion of the Justices, 
239 Mass. 606. As was said in the latter opinion (pages 
610,611): — 

I 



JAY R. BENTON, ATTORNEY-GENERAL. 171 

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 prerogatives 
of a sovereign power. It would be destructive of fundamental concep- 
tions of government through republican institutions for the representa- 
tives of the people to abdicate their exclusive privilege and obligation to 
enact laws. 

There are no exceptions to the principle that the General Court cannot 
delegate, surrender or transfer to any other power the function of enact- 
ing statutes general in their scope and operation. 



It is true that the Legislature may confer upon adminis- 
trative officials the power, in the execution of a law, to 
formulate rules, determine facts and exercise a limited 
discretion in matters of detail; but the power so granted is 
not to frame a general rule of law, but to apply a rule, when 
enacted, to particular situations. In my judgment, the 
proposed legislation in this respect goes far beyond the 
permitted line, and would be contrary to the Constitution 
of this Commonwealth. 

Furthermore, the bill is applicable only to dealers "who 
buy, purchase, receive, or collect said milk or cream to be 
sold, delivered, or exposed for sale, at a point more than 
six miles from the point of collection or receipt or purchase." 
There appears to be no sound basis for such a distinction 
between dealers. In my opinion, the discrimination thus 
made is unreasonable and arbitrary, and therefore un- 
constitutional. Commonwealth v. Hana, 195 Mass. 262, 
266, 267; V Op. Atty. Gen. 56. 

A further ground of invalidity is that it is manifest, from 
section 2, that the dominant purpose of the proposed act is 
to impose restrictions upon milk dealers for the financial 
protection of milk producers, by requiring persons engaged 
in the business of distributing milk to secure a license and 
give a bond, the terms of which are wholly within the dis- 
cretion of an administrative official. That purpose is one 
which, in my opinion, it is beyond the constitutional power 
of the Legislature to effectuate. The matter is considered at 



172 OPINIONS OF THE ATTORNEY-GENERAL. 

length in an opinion rendered by the Attorney General on 
the constitutionality of House Bill No. 396, at the request 
of the committee on agriculture. VII Op. Atty. Gen. 164. 



Insurance — Broker's License — Fee — Veteran — 
Service in the Army or Navy of the United States 
"in Time of War or Insurrection" — Punitive 
Expedition into Mexico. 

An applicant for an insurance broker's license under G. L., c. 175, § 166, is not 
exempt from paying the fee prescribed by said section, on the ground that 
he was a member of the Massachusetts National Guard, which was in the 
service of the Federal government during the punitive expedition into Mexico 
in 1916. 

Such service does not constitute service in the Army or Navy of the United States 
"in time of war or insurrection," within the meaning of said statute. 

missk)nw°of' You request my opinion as to whether a certain applicant 

^"i923"°^' for an insurance broker's license under G. L., c. 175, § 166, 
^^Z^- is exempt from paying the fee prescribed by said section, on 

the ground that the applicant in question was a member of 
the Second Regiment, Company C, of the Massachusetts 
National Guard, which was in the service of the Federal 
government during the punitive expedition into Mexico 
several years ago. The applicant contends that his service 
in this regiment on this occasion entitles him to exemption 
from the fee. 

G. L., c. 175, § 166, provides, in part, as follows: — 

The commissioner may, upon the payment of a fee of ten dollars, issue 
to any suitable person of full age resident in the common\vealth, or resi- 
dent in any other state granting brokers' licenses or like privileges to 
residents of the commonwealth, a license to act as an insurance broker 
to negotiate, continue or renew contracts of insurance or annuity or pure 
endowment contracts, or to place risks, or effect insurance with any quali- 
fied domestic company or its agents, or with the lawfully constituted and 
licensed resident agents in this commonwealth of au}^ foreign company 
duly admitted to issue such policies or contracts therein upon the follow- 
ing conditions: . . . No fee for a license issued hereunder shall be re- 
quired of any soldier, sailor or marine resident in this commonwealth 



JAY R. BENTON, ATTORNEY-GENERAL. 173 

who has served in the army or navy of the United States in tune of war 
or insurrection and received an honorable discharge therefrom or release 
from active duty therein, if he presents to the commissioner satisfactory 
evidence of his identity. 

The decision of your question accordingly rests upon 
whether or not the service of the apphcant on the Mexican 
border constitutes service in the Army or Navy of the 
United States "in time of war or insurrection," within the 
meaning of said statutes. 

U. S. Const., art. 1, § 8, prescribes the methods of de- 
claring war in the following language : — 

The congress shall have power ... to declare war, grant letters of 
marque and reprisal, and make rules concerning captures on land and 
water; — to raise and support armies, but no appropriation of money 
to that use shall be for a longer term than two years; — to provide and 
maintain a navy; — to make rules for the government and regulation of 
the land and naval forces; — to provide for calling forth the militia to 
execute the laws of the Union, suppress insurrections, and repel invasions; 
— to provide for organizing, arming, and disciplining the militia, and for 
governing such part of them as may be employed in the service of the 
United States, reserving to the states respectivelj^, the appointment of 
the officers, and the authority of training the militia according to the 
discipline prescribed by congress; . . . 

It is evident that at the time of this emergency in 1916 
the Congress of the United States never declared war on 
Mexico as prescribed in the Constitution. The language 
of Congress, contained in Public Laws, 1916, c. 211, is 
indicative of how the emergency was considered at the time, 
namely : — 

Joint Resolution to authorize the President to draft members of the 
National Guard and of the organized militia of the several states, terri- 
tories, and the District of Columbia and members of the National Guard 
and Militia Reserves into the military service of the United States under 
certain conditions, and for other purposes. 

Resolved by the Senate and House of Representatives of the United States 
of America in Congress assembled, That in the opinion of the Congress 
of the United States an emergency now exists which demands the use of 



174 OPINIONS OF THE ATTORNEY-GENERAL. 

troops in addition to the regular army of the United States and that the 
President l)e, and he is hereby, authorized to draft into the military ser- 
vice of the United States . . , any or all members of the National Guard 
and of the organized militia of the several states, territories and the 
District of Columbia and any and all members of the National Guard 
and organized militia reserves, to serve for the period of the emergency, 



Sec. 4. That whenever in time of war or public danger or during the 
emergency declared in section one of tliis resolution, . . , 
Approved, July 1, 1916. 

It is to be observed that in said resolution Congress refers 
to the 1916 Mexican border service as an emergency and 
not a war. The wording of U. S. PubUc Laws, c. 143, 
enacted July 9, 1918, at page 873, is likewise significant of 
the manner in which the United States government considers 
the Mexican border service. This section reads, in part, 
as follows : — 

That the Secretary of War be, and he is hereby, authorized and directed 
to procure a bronze medal, ... to be presented to each of the several 
officers and enlisted men, ... of the National Guard who, under the 
orders of the President of the United States, served ... in the war with 
Spain, . . . and who served on the Mexican border in the yeai's nine- 
teen hundred and sixteen and nineteen hundred and seventeen and who 
are not eligible to receive the Mexican service badge heretofore authorized 
by the President; . . . 

The phraseology used in bestowing honors upon those 
who participated in the Mexican border service indicates 
that a distinction is made between that service which our 
National Guard performed under the call of the President 
in 1916, and the service in a war. The statute designates 
specifically a medal for service ''in the war with Spain," 
while the medal for those who went into Mexico is called 
"the Mexican service badge," and the medal for those 
who served on the border is specified as the medal for those 
"who served on the Mexican border." 

There appears to be a sound distinction between the 



i 



JAY E. BENTON, ATTORNEY-GENERAL. 175 

existence of "a state of war" and "time of war," especially 
as relating to the government of soldiers and the jurisdiction 
of military law. Accordingly, it was held in a report of the 
Judge Advocate General, dated March 21, 1905 (c. 17609), 
approved by Secretary Taft, that the operations of the 
expeditionary force in China constituted a condition of war, 
so that a soldier, who deserted during said operations, 
deserted in time of war, and therefore was not entitled to 
the benefit of the statute of limitations. 

While it was not contended that at any time the United 
States and the Imperial Government of China were at war, 
it was held that we were prosecuting our right to protect 
our representatives from the body of Chinese who were 
seeking to capture or kill them, and, accordingly, a state 
of war existed within the meaning of the statutes; the parties 
to the war, so far as concerned us, being on the one side 
the United States and on the other a certain proportion 
of the inhabitants of the Chinese Empire who were, from 
representation of the Imperial Chinese Government, in 
revolt. 

Similarly, after the ratification of the treaty of peace with 
Spain, the United States was regarded as at peace, except 
locally in the Philippine Islands, where a state of war 
legally continued until peace was proclaimed therein by 
the President. (See VI Op. Atty. Gen. 407.) 

In an opinion of the Judge Advocate General, dated May 
9, 1916, to the Adjutant General (Opinions Judge Advocate 
General, 99-001), on the following question: "Before what 
tribunal should a member of the expedition in Mexico be 
tried for murder or rape?" Judge Advocate General E. H. 
Crowder says : — 

I am therefore of the opinion that while war is not recognized as exist- 
ing between the United States and Mexico, the actual conditions under 
which the field operations in Mexico are being conducted are those of 
actual war; that within the field of operations of the expeditionary force 
in Mexico, it is "time of war" within the meaning of the 58th Article of 
War; and that the crimes mentioned in that article should therefore be 



176 OPINIONS OF THE ATTORNEY-GENERAL. 

tried by general court-martial in accordance with its provisions. The 
opposite ruUng would give immunity for the capital crimes specified in 
the 58th Article of War, since it could not have been intended that, under 
such conditions, United States soldiers would be turned over to the 
authorities of Mexico for trial. 

A similar question arose in California where, in construing 
section 13^ of art. XIII of the California State Constitution, 
— which provides: "The property to the amount of one 
thousand dollars of every resident in this state who has 
served in the Army, Navy, Marine Corps or Revenue 
Marine Service of the United States in time of war, and 
received an honorable discharge therefrom; . . . shall be 
exempt from taxation," — the Attorney General of the 
State of California ruled that "the trouble on the Mexican 
border was not a Var' within the meaning of that consti- 
tutional provision." See Digest of Opinions, Judge Ad- 
vocate General, p. 119, 1919. 

I am accordingly of the opinion that the military service 
of the applicant for the insurance broker's license under 
G. L., c. 175, § 166, as outlined in your communication, 
does not exempt him from paying the fee prescribed by said 
section, inasmuch as said service did not constitute service 
in the Army or Navy of the United States "in time of war 
or insurrection," within the meaning of the statute. 



Taxation — Exemption — Property of Grand Army 
OF the Republic. 

Under G. L., c. 59, § 5. cl. 5th, as amended by St. 1921, c. 474, and by St. 1922, 
c. 222, portions of a building belonging to a post of the Grand Army of the 
Republic, which are let to tenants, are not e.Kempt from taxation, and should 
be separately valued and taxed. 

^ssfonw^of" ^^^ have requested my opinion, under the provisions of 

SiTiwion. Gr. L., c. 58, § 1, whether real estate belonging to a post of 

mS^23. the Grand Army of the Repubhc Corporation located in 

Springfield, the total valuation of which is below $100,000, 



!! 



1 



JAY R. BENTON, ATTORNEY-GENERAL. 177 

is exempt from taxation under G. L., c. 59, § 5, cl. 5th, as 
amended. The assessors report to you that the income from 
said real estate "is used entirely in the care and upkeep of 
the property, interest on loans, insurance, etc." By a sub- 
sequent communication you have been advised that the 
real estate consists of a brick block divided into a number of 
rooms, some of which are leased at a monthly rental to other 
fraternal organizations and others are rented at times 
when not in use. 

G. L., c. 59, § 5, cl. 5th, as amended by St. 1921, c. 474, 
and by St. 1922, c. 222, is as follows: — 

The real and personal estate belonging to or held in trust for the bene- 
fit of incorporated organizations of veterans of any war in which the 
United States ha»s been engaged, to the extent of one hundred thousar^d 
dollars, if actually used and occupied by such association, and if the net 
income from said property is used for charitable purposes; but it shall 
not be exempt for any year in which such association or the trustees hold- 
ing for the benefit of such association wilfully omit to bring in to the 
assessors the list and statement required by section twenty-nine. 

Clause 5th is an offshoot from the provisions appearing 
in G. L., c. 59, §5, cl. 3rd, which, omitting the exceptions, 
is as follows : — 

Personal property of literary, benevolent, charitable and scientific in- 
stitutions and of temperance societies incorporated in the commonwealth, 
the real estate owned and occupied by them or their officers for the pur- 
poses for which they are incorporated, and real estate purchased by them 
with the purpose of removal thereto, until such removal, but not for more 
than two years after such purchase, except as follows: . . . 

In the Public Statutes the provisions corresponding to the 
above-quoted portion of clause 3rd (P. S., c. 11, § 5, cl. 3rd) 
were as follows : — 

The personal property of literary, benevolent, charitable, and scientific 
institutions incorporated within this commonwealth, and the real estate 
belonging to such institutions, occupied by them or their officers for the 
purposes for which they were incorporated; but such real estate, when 



178 OPINIONS OF THE ATTORNEY-GENERAL. 

purchased by such a corporation with a view to removal thereto, shall 
not, prior to such removal, be exempt for a longer period than two years: 



This clause was amended and a provision exempting 
personal property and real estate of Grand Army and 
veteran associations was first made by St. 1889, c. 465. 
Section 1 of that statute is as follows : — 

The personal property of literary, benevolent, charitable and scientific 
institutions and temperance societies incorporated within this Common- 
wealth, and the real estate belonging to such institutions occupied by 
them or their officers for the purposes for which they were incorporated; 
but such real estate when purchased by such a corporation with a view 
to removal thereto, shall not, prior to such removal, be exempt for a 
longer period than two years; but none of the real or personal estate of 
such corporations organized under general laws shall be exempt when 
any portion of the income or profits of the business of such corporations 
is divided among their members or stockholders or used or appropriated 
for other than literary, educational, benevolent, charitable, scientific or 
religious purposes. The personal property and real estate belonging to 
grand army and veteran associations incorporated within this Common- 
wealth for the purpose of owning property for the use and occupation by 
posts of the grand army of the republic shall, to the extent of twenty 
thousand dollars, if the same shall be in actual use and occupation by 
such associations, be deemed to be the property of charitable institutions, 
and exempt from taxation, provided the net income from said property 
is used for charitable purposes in aid of needy soldiers of the war of the 
rebellion, and their dependents. 

The last sentence, exempting from taxation under the 
circumstances stated personal property and real estate 
belonging to Grand Army and veteran associations, appears 
as a reenactment in R. L., c. 12, § 5, cl. 5th. That pro- 
vision has reached its present form by successive amend- 
ments. So far as I have knowledge, G. L., c. 59, § 5, cl. 5th, 
has not been construed either by the court or by the Attorney 
General. Cases involving the construction of the provisions 
of clause 3rd have, however, frequently been before the court, 
and the language of the two clauses is sufficiently similar 



JAY R. BENTON, ATTORNEY-GENERAL. 179 

SO that those decisions have a considerable bearing on the 
question concerning which you have asked my opinion. 
The particular phrases of the two clauses which, for 
present purposes, should be set opposite each other and 
compared are these : — 

Clause Srd. "The real estate owned and occupied by them or their 
officers for the purposes for which they are incorporated." 

Clause 5th. "The real . . . estate belonging to incorporated organi- 
zations of veterans . . . , if actually used and occupied by such associa- 
tion, and if the net income from said property is used for charitable 
purposes." 

The cases of which I have spoken emphasize two con- 
ditions which must be met in order that real estate may be 
exempt under clause Srd. The first is that it must be 
owned and occupied by the institution, and the second is 
that it must be occupied for the purpose for which the insti- 
tution is incorporated. Cases applying to the latter con- 
dition are the following: Chapel of the Good Shepherd v. 
Boston, 120 Mass. 212; Mount Hermon Boys' School v. Gill, 
145 Mass. 139; Salem Lyceum v. Salem, 154 Mass. 15; 
Phillips Academy v. Andover, 175 Mass. 118; Emerson v. 
Trustees of Milton Academy, 185 Mass. 414. This condition, 
obviously, has no application to clause 5th. 

But other cases under clause Srd have dealt with the 
question — what is a sufficient occupation by an insti- 
tution to exempt its real estate; and these cases, it seems 
to me, are directly applicable to the question before me. 
In Charleshank Homes v. Boston, 218 Mass. 14, the plaintiff 
was a charitable corporation owning a large model apart- 
ment house containing apartments which it leased to tenants 
for small rents. The court held that the tenants were 
strictly tenants, who were themselves the occupants of their 
apartments, that "there must be an actual occupation by 
the corporation or its officers before the purpose of that 
occupation can be considered," and that the real estate upon 
which the tax was imposed was not exempted from taxation, 



180 OPINIONS OF THE ATTORNEY-GENERAL. 

because it was not occupied by the plaintiff corporation 
but was occupied by its tenants. This case was followed 
and applied in Bahcock v. Mores Home for Infirm Hebrews, 
225 Mass. 418. 

In my opinion, these cases are decisive of the present 
question. Indeed, the language of clause 5th in that 
respect is somewhat stronger, because the real estate to be 
exempt must be "actually used and occupied by such associa- 
tion." It is not sufficient that the net income from the 
property is used for charitable purposes. That is a second 
condition imposed by clause 5th to be considered after the 
first has been met. Cf. Chapel of the Good Shepherd v. Boston, 
120 Mass. 212; Salem Lyceum v. Salem, 154 Mass. 15. But 
an occasional letting of a hall or other part of a building 
which is occupied by an institution or association is not in- 
consistent with an actual occupancy of that part of the 
building by the institution or association, so long as it 
remains in control of the premises. Salem Lyceum v. Salem, 
154 Mass. 15, 17; Emerson v. Trustees of Milton Academy, 
185 Mass. 414. 

For the purpose of taxation those portions of the building 
which are let to tenants can be separated from the remain- 
ing parts occupied by the corporation, and separately valued 
and taxed. Cambridge v. County Commissioners, 114 Mass. 
337. 

I must advise you, therefore, that, in so far as any of the 
rooms in the building in question are let to other organ- 
izations as tenants, the property so occupied by them is not 
exempt, but that otherwise the property is exempt from 
taxation. 



jay r. benton, attorney-general. 181 

Constitutional Law — Drainage Law. 

The power of the State to provide for the improvement of low lands and swamps 
and the assessment of the expense on the owners, either in the exercise of the 
police power, where the benefits conferred are merely private, or in the exer- 
cise of the power of eminent domain and the taxing power, where a public 
purpose is served, has long been recognized. 



You have transmitted to me for examination and report G°verno 
a bill, entitled "An Act concerning the improvement of low Miy^li. 
lands and swamps," which amends G. L., c. 252, as amended 
by St. 1922, c. 349, by striking out sections 1 to 14A, in- 
clusive, and inserting in place thereof sixteen new sections. 
The general purpose appears to be to make adequate pro- 
vision for the financing of improvements of wet lands by 
the formation of reclamation districts, and by giving to 
such districts authority either to request the county com- 
missioners to pay, in the first instance, the expense involved 
in making proposed improvements, by issues of county 
bonds or notes, or to finance such expense by assessments 
upon the members of the districts or the issuing of district 
notes or bonds. 

The power of the State to make provision for the improve- 
ment of meadows and low lands and the assessment of the 
expense on the owners, either in the exercise of the police 
power, where the benefits conferred are merely private, 
or in the exercise of the power of eminent domain and the 
taxing power, where a public purpose is served, has long 
been recognized. Talbot v. Hudson, 16 Gray, 417; Lowell 
V. Boston, 111 Mass. 454, 464-471 ; Turner v. Nye, 154 Mass. 
579; Wurts v. Hoagland, 114 U. S. 606; III Op. Atty. Gen. 
538. See Mass, Const. Amend. XLIX. In my opinion, 
the bill, if enacted into law, would be constitutional. 



May 24. 



182 opinions of the attorney-general. 

Department of Agriculture — Oleomargarine — 
Inspection — Peaceable Entry — Search War- 
rant. 

Employees of the Department of Agriculture may, for the purpose of inspection, 
peaceably enter dwelling houses actually used in the manufacture, transpor- 
tation or sale of oleomargarine. 

Force may probably not be used to gain such entry. 

When peaceable entry has been made, reasonable force may probably be used to 
make inspection. 

A search warrant may not be issued to search for oleomargarine. 

m?ssionS°of' ^^^ havc Tequested my opinion upon certain questions 

^^1923'*"'^' relative to the powers of employees of your department, 

under the provisions of G. L., c. 128, § 14, which provides, 

in part, as follows : — 

The department and its employees shall have access to each place used 
in the manufacture, transportation or sale of dairy products or imitations 
thereof, and to each vessel and can be used in such manufacture, trans- 
portation and sale, . . . 

Under these provisions the department and its employees 
have access only to places actually used in the manufacture, 
transportation or sale of dairy products or imitations thereof. 

In my opinion, if a dwelling house is used for any of the 
purposes enumerated in the statute, the department and 
its employees have a right to enter for the purpose of in- 
spection. Dunn V. Lowe, 203 Mass. 516, 517; G. L., c. 94, 
§ 56. This applies, however, only to dwellings actually 
used for such purposes, and does not apply to dwellings 
merely suspected of being so used. The cases sustaining 
the right of officers authorized by statute to make entry for 
the purpose of inspection refer to peaceable entry. They 
do not hold that entry may be made by force against the 
will of the owner or occupant. Whether such entry would 
be lawful is left in doubt. (See VI Op. Atty. Gen. 288.) 
If, however, peaceable entry in the place used for the man- 
ufacture, transportation or sale of oleomargarine has been 
obtained, the court seems to intimate that an inspection 



JAY R. BENTON, ATTORNEY-GENERAL. 183 

can be made even against the will of the owner. Com- 
monivealth v. Smith, 141 Mass. 135, 139. This question, 
however, is not free from doubt. 

By statute, search warrants may be issued to search for 
certain property. There is no provision authorizing the 
issuing of a search warrant to search for oleomargarine. 

Answering your questions specifically, I am of the opinion 
that — 

(1) Employees of your department may enter dwelling 
houses used in the manufacture, transportation or sale of 
oleomargarine for the purpose of inspection, but may not 
enter dwellings which are merely suspected of being, but 
are not actually, so used. 

(2) Employees may probably not use force to gain entry 
to a dwelling so used against the will of the owner or oc- 
cupant. 

(3) Employees who gain peaceable entry to a dwelling 
so used may probably use reasonable force for the purpose 
of making an inspection when they are within the premises 
used for the manufacture, transportation or sale of oleo- 
margarine. 

(4) Under existing statutes, a search warrant may not 
be issued to search for oleomargarine. 



Constitutional Law — Bridge over Highway — 
Ownership of Fee in Public Way. 

5 It is within the constitutional power of the Legislature to enact a law conferring 
• upon a city or town within this Commonwealth the power to grant permits 

or privileges to private individuaL? to erect structures which will bridge the 
public streets connecting premises owned on both sides of the street. 
The Legislature has the power to authorize encroachments upon a public street 
if they deem it proper so to do, whether the municipality or the person seek- 
ing the permit or consenting thereto owns the fee of the street. 

You have transmitted to me for examination and report qI^^^j^^ 
House Bill No. 1491, entitled "An Act authorizing Lever ^^Ifl^^ 
Brothers Company to maintain a bridge over Burleigh 



184 OPINIONS OF THE ATTORNEY-GENERAL. 

Street in the city of Cambridge." The proposed act is 
as follows : — 

Section 1. Upon petition, after seven days' notice inserted in at 
least one newspaper published in the city of Cambridge and a public 
hearing thereon, the city council of said city may, by a two-thirds vote, 
with the approval of the mayor, issue a permit to Lever Brothers Com- 
pany of Cambridge, its successors and assigns, to build and maintain a 
bridge over Burleigh street in said city, for the purpose of connecting the 
buildings owned and occupied by said company on said Burleigh street. 
Said permit shall be granted upon such conditions and subject to such 
restrictions as the city council may prescribe. Any permit so issued may 
be revoked by vote of said city council, with the approval of the mayor. 

Section 2. Any bridge built under a permit granted as aforesaid 
shall be constructed and maintained at a height not less than twenty-seven 
feet, six inches above the grade line of said street, and shall not be more 
than twenty feet in width, and no part of said bridge or its supports shall 
rest on the surface of the street. 

Section 3. If a person sustains bodily injury or damage in his prop- 
erty bj^ reason of the construction or maintenance of said bridge, he may 
recover damages therefor in an action of tort brought in the superior 
court against said Lever Brothers Company, or its successors or assigns, 
within one year after the date of such injury or damage; provided, that 
such notice of the time, place and cause of the said injury or damage be 
given to said Lever Brothers Company, or its successors or assigns, by, 
or on behalf of, the persons sustaining the same as is, under the provisions 
of chapter eighty-four of the General Laws, valid and sufficient in cases 
of injury or damage sustained by reason of a defect or a want of repair 
in or upon a way, if such defect or want of repair is caused by or consists 
in part of snow or ice, or both. The remedy herein provided shall not 
be exclusive, but shall be in addition to any other remedy provided by 
law. 

Section 4. This act shall take effect upon its passage. 

The question is presented whether such an act is within 
the constitutional power of the Legislature. 

In 1911 the House of Representatives, having under 
consideration certain bills to authorize the construction of 
bridges over streets in the city of Boston, requested the 
opinion of the justices of the Supreme Judicial Court on 
several questions, of which one was whether it was "within 
the constitutional power of the Legislature to enact a law 



JAY R. BENTON, ATTORNEY-GENERAL. 185 

conferring upon a city or town within this Commonwealth 
the power to grant permits or privileges to private individuals 
to erect structures which will bridge the pubUc streets con- 
necting premises owned on both sides of the street." Opin- 
ion of the Justices, 208 Mass. 603, 604. To this question 
the justices answ^ered (p. 606) : "Yes, if the private individ- 
uals own all the land upon or over which the structures are 
to be erected." 

In the course of their opinion the justices gave the fol- 
lowing reasons for their answer (pp. 605, 606) : — 

The Legislature represents the public, and at any time it may enlarge 
or limit public rights thus acquired, having due regard to private rights 
of property secured by the Constitution to all the people. New England 
Telephone & Telegraph Co. v. Boston Terminal Co., 182 Mass. 397, 400. 
So far as the rights of the public in the street or way are concerned, the 
Legislature can do anything referred to in any of the questions, if the 
proposed legislation seems reasonable and proper. 

So far as the abutters are concerned, the Legislature, without their 
consent can do or authorize nothing that takes away or impairs any 
valuable right in their property, unless the taking is for a public use, 
with compensation for that which is taken. 

As against an adjoining landowner, one has no right to have the ad- 
jacent premises remain open for the admission of light and air. In the 
cases referred to in the first three questions, we assume that the owners of 
abutting land, upon or over which the structure would be erected, would 
desire the erection and would consent to it. It would, therefore, be made 
in their right, as well as with authority from the Legislature to make an 
encroachment upon the previously existing public right. The existence 
of this private right of the owner of the fee of the land over which the 
', structure would be erected would preclude the owners of adjacent lands 
: from having damage for an obstruction of light and air, possibly affecting 
I their property abutting on other adjacent parts of the street. 

The reasons thus stated involve three fundamental prop- 
ositions: First, that so far as the rights of the pubhc are 
concerned the Legislature can authorize the granting of a 
permit to private individuals to erect a bridge across a 
public street, if it seems to them reasonable and proper to 
do so (see Union Inst, for Savings v. Boston, 224 Mass. 286) ; 



186 OPINIONS OF THE ATTORNEY-GENERAL. 

second, that the Legislature cannot authorize the taking 
of private rights in property unless the taking is for a public 
use, with adequate provision for compensation; and third, 
that no taking of any such right is made by the erection of 
a bridge across a public street except as against owners of 
the land upon or over which the structure is erected, and, 
that interference with light, air and prospect does not consti- 
tute the taking of an easement in adjoining land for which 
compensation must be made. See Peabody v. Boston & 
Providence R.R. Corpn., 181 Mass. 76; McKeon v. New 
England R.R. Co., 199 Mass. 292, 295, 296. 

Upon receipt of the answer of the justices the House of 
Representatives propounded further questions to them. 
Opinion of the Justices, 208 Mass. 625. Two of their ' 
questions were as follows (p. 627) : — j 

6. Would the provisions of said House Bill No. 817 be constitutional I 
and would the provisions of the bill which forms the subject of the last< 
question be constitutional if these bills were amended by striking outil 
section three of the former bill and section four of the latter bill and sub- • 
stituting in the place of each of said sections the following section: "Any < 
person owning property, or doing business in property abutting on Avom 
Street, whose property or business is damaged either through interferenc 
with light and air or otherwise by the construction or maintenance of 
bridge constructed in accordance with the provisions of section one 
this act, may have damages therefor determined by a jury upon petitio^ 
to the Superior Court filed against the grantees of said permit within or 
year after the permit for the erection of said bridge is approved by thf 
mayor, as provided in section one of this act." 

7. If at any time after the enactment of slich a bill and the issue 
such permit and the construction or beginning of construction of sue 
bridge under said permit any person using said street and passing und^ 
said bridge shall suffer any injury either to his person or to his propert 
on account of the construction or maintenance of said bridge, as bj'^ t\ 
falling of material used in the construction of said bridge or by the fallir 
of snow or ice from said bridge, will the city of Boston be liable for sai| 
injury? 

To these questions the justices answered, in part, as follow 
(p. 630):— 



JAY R. BENTON, ATTORNEY-GENERAL. 187 

The law covering the matters to which these questions relate was very 
fully stated in an Opinion of the Justices communicated to the House of 
Representatives on April 17, 1911, ante, 603, which appears by 3'our order 
to be before the Honorable Senate. 

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 tlie 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. It is 
equally elementary law that cities and towns are not liable in damages 
to persons for injuries received from unsafe conditions, while travelling 
on a higliway, unless there is a statute imposing a liability for such con- 
ditions. 

In fact, the substituted section proposed in the sixth 
question was open not only to the objection pointed out 
by the justices, but also to the objection that since the 
buildings, on opposite sides of the street, to be connected 
by the proposed bridge were owned by the petitioners, there 
could be no person entitled to damages by reason of any 
taking, as the justices showed in their former opinion. 

A bill containing similar provisions was held by my 
predecessor to be open to the objections stated in the latter 
opinion. VI Op. Atty. Gen. 52. Section 3 of that bill 
provided : — 

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 l)y the mayor as above provided, and 
the damages when so determined shall be paid by the said George L. 
Brownell. 

The form of the bill was afterwards amended, and as so 
amended was approved by Your Excellency. St. 1921, c. 
330. Section 3 of the act as passed is in form precisely 
similar to section 3 of the bill before me. It does not pur- 
port to provide for recovery of compensation by any one for 
a taking in the exercise of the power of eminent domain. 



188 OPINIONS OF THE ATTORNEY-GENERAL. 

but merely to provide for the recovery of damages in an 
action of tort against the petitioner, occasioned to any 
person who suffers an injury to a legal right by reason of the 
construction or maintenance of the bridge. 

In Opinion of the Justices, 208 Mass. 603, 606, their 
affirmative answer was on the hypothesis that the private 
individuals who were the petitioners owned all the land 
upon or over which the structures were to be erected. The 
justices assumed, apparently, that they owned the fee in the 
street. So in the case to which St. 1921, c. 330, relates, the 
petitioner was authorized to build and maintain a bridge 
over such portions only of the street as were owned by him 
or by the corporation owning the land on the opposite side 
of the street, to whose written consent the permit was 
subject. In the proposed act it does not appear that the 
petitioner owns the fee of the street. In my opinion, how- 
ever, it is not necessary that it should. In accordance with 
the general principle stated by the justices in the first 
opinion referred to, the Legislature has power to authorize 
encroachments upon a public street if it deems it proper 
so to do, whether the municipality or the person seeking the 
permit or consenting thereto owns the fee of the street. 
St. 1921, c. 331, authorizes a permit for the erection of a 
bridge across a street for the purpose of connecting buildings 
owned and occupied by the corporation on opposite sides of 
the street, without any reference to the ownership of the 
fee in the street. 

I advise you, therefore, that, in my opinion, there is no 
constitutional defect in the proposed act. 



I 



jay r. benton, attorney-general. 189 

Constitutional Law — Legislative Power as to 
Courts — District Judges sitting in the Superior 
Court. 

It is within the constitutional power of the Legislature to modify, enlarge, diminish 
or transfer the jurisdiction of all courts subordinate to the Supreme Judicial 
Court. 

An act providing that district judges shall sit at the trial of certain criminal cases 
in the Superior Court, when designated by the chief justice thereof, is consti- 
tutional. 



You request me to consider House Bill No. 1466, entitled Q°^^grno 
"An Act to provide for the more prompt disposition of May^ls. 
criminal cases in the Superior Court." 

Mass. Const., c. I, § I, art. Ill, provides, in part: — 

The general court shall forever have full power and authority to erect 
and constitute judicatories and courts of record, or other courts, to be 
held in the name of the commonwealth, for the hearing, trying, and de- 
termining of all manner of crimes, offences, pleas, processes, plaints, 
actions, matters, causes, and things, whatsoever, arising or happening 
within the commonwealth, . . . whether the same be criminal or civil, 



Article IV of that section provides, in part : — 

. . . full power and authority are hereby given and granted to the 
said general court, ... to set forth the several duties, powers, and 
Hmits, of the several civil and military officers of this commonwealth, 
... so as the same be not repugnant or contrary to this constitution; 



In Dearborn v. Avies, 8 Gray, 1, 14, the court said: — 

The power to erect courts and judicatories, coupled with an authority 
to define and limit the powers and duties of all civil officers, gives power 
to the legislature to fix and limit the jurisdiction of all such courts and 
judicatories. . . . 

Under this power to erect judicatories, we think it has been the prac- 
tice of the legislature, from the adoption of the Constitution, to erect and 
establish new judicatories, other than the supreme judicial court, to 
transfer jurisdiction from one court to another, in part or in whole, and 
to enlarge, restrain and regulate the jurisdiction of all courts. 



190 OPINIONS OF THE ATTORNEY-GENBKAL. 

In Russell v. Howe, 12 Gray, 147, 153, the court said: — 

The probate court was a judiciary under tlie Constitution, and its 
jurisdiction might be modified, enlarged, diminished or transferred, in 
the same manner as the jurisdiction of all other courts subordinate to the 
supreme judicial court. 

The proposed bill enlarges the juridiction of justices of 
district courts when assigned by the chief justice of the 
Superior Court. It is within the constitutional power of 
the Legislature so to provide. I am therefore of the opinion 
that the proposed bill, if enacted, would be constitutional. 



Public Health — Licenses — Cold Storage Warehouse. 

Cl. L., c. 94, § 00, providing that "no person shall maintain a oold storage or re- 
frigerating warehouse without a license issued by the department of public 
health," requires a separate license for each plant operated. 

Whether a group of buildings may fairly be considered to constitute but a single 
plant, and therefore to require but a single license, is a question of fact to be 
decided upon the concrete circumstances of each case. 

m?ssion^r°o?' ^y opiuiou Is rcqucstcd relative to the licensing of cold 

^'"'923"''''^^'' storage warehouses under the provisions of G. L., c. 94, § 66. 

May£l. rpj^^ ^^^^ ^£ ^j^.^ ^^^ -^ ^^ f qUoWS I 

No person shall maintain a cold storage or refrigerating warehouse 
without a license issued by the department of public health. Any person 
desiring such a license may make written application to such depart- 
ment, stating the situation of his plant. Upon receipt of the application 
the said department shall cause an examination of the sanitaj-y condition 
of the plant to be made, and if it is found to be in a sanitary condition and 
otherwise properly equipped for the business of cold storage, said depart- 
ment upon receipt of a license fee of ten dollars shall cause a license to be 
issued authorizing the applicant to maintain therein a cold storage or 
refrigerating warehouse for one year. If any warehouse or any part 
thereof, licensed under this section, is deemed by said department to be 
conducted in an unsanitary manner, it shall close such warehouse or 
part thereof, until it has been put in sanitary condition, and said depart- 
ment may also suspend the license if the required changes are not made 
within a reasonable time. Each such licensee shall submit to the de- 
partment of public health on or before the fifteenth day of each month, a 



JAY R. BENTON, ATTORNEY-GENERAL. 191 

report on a printed form to be provided by said department, stating the 
quantities of articles of food placed in cold storage during the month pre- 
ceding, and also the quantities of articles of food held on the first day of 
the month in which the report is filed or such other day as the commis- 
sioner of public health may from time to time fix. 

The act does not provide specifically for a case where the 
same person maintains more than one cold storage ware- 
house. Under the statute, however, the Hcensee, in order 
to secure a license, must state in his application "the situa- 
tion of his plant," in order that the department may then 
"cause an examination of the sanitary condition of the 
plant to be made." "If any warehouse or any part thereof, 
licensed under this section, is deemed by said department 
to be conducted in an unsanitary manner, it shall close such 
warehouse or part thereof, until it has been put in sanitary 
condition, ..." 

In my opinion, these provisions indicate that a separate 
license is required for each plant operated. Whether a group 
of buildings may fairly be considered to constitute a single 
plant, and therefor to require but a single license, is a 
question of fact, to be decided upon the concrete circum- 
stances of each case. When all the buildings in question 
are operated from a single power plant, this fact would, 
in my opinion, be of importance in determining whether or 
not they may properly be looked upon as a single plant. It 
cannot be said, however, that the absence of this feature 
necessarily and as a matter of law would require a finding 
that the buildings were not fairly to be deemed a unit. 
The question is one of fact in each instance. 



192 opinions of the attorney-general. 

Prisoners — Minimum and Maximum Sentences — 

Parole. 

a sentence for a minimum and maximum term is in effect a sentence for the maxi- 
mum term. 

A prisoner in the Reformatory for Women, under a sentence of not less tlian five 
years and not more than eight years, is eligible for parole after serving three 
years and eleven months. 

m°s8ionCT°of' You have requested my opinion as to when a female 

Correction. prisouer is eligible for parole upon the following facts: A 
^^ ■ female was committed to the Reformatory for Women on 

two separate commitments, one upon a sentence of not less 
than five years and a day and not more than eight years, for 
larceny, and the other upon a sentence of two years, for 
forgery and uttering. The two sentences run concurrently. 
I am of the opinion that she is not eligible for parole upon 
the sentence of two years, since at the time she is serving the 
longer sentence, upon which, under the present rules, she 
would not be eligible for parole at any time within the two- 
year period. 

G. L., c. 279, § 18, provides: — 

A female sentenced to the reformatorj^ for women for larceny or any 
felony may be held therein for not more than five years, unless she is 
sentenced for a longer term, in which case she may be held therein for 
such longer term; . . . 

A sentence for a minimum and maximum term is in effect 
a sentence for the maximum fixed by the court. Comnion- 
ivealth V. Brown, 167 Mass. 144, 146; Oliver v. Oliver, 169 
Mass. 592, 593; Ex parte Spencer, 228 U. S. 652, 661; 
Adams v. Russell, 229 U. S. 353, 362. In Oliver v. Oliver, 
supra, where the sentence was for not less than three nor 
more than six years, the court said, at page 594 : — 

The sentences must be deemed to be, for the purpose contemplated 
by this statute, either for the maximum or for the minimum term. They 
are indeterminate, and they cannot be treated as sentences for any inter- 
mediate term. In the interval between the two dates fixed is the convict 



JAY R. BENTON, ATTORNEY-GENERAL. 193 

under sentence to imprisonment or not? He is all the time in the custody 
of the law under his sentence. He is in confinement at hard labor, unless 
for good reasons a permit to be at liberty on certain terms and conditions 
is given to him by the commissioners of prisons. If he obtains such a 
permit, it may be revoked at any time, and if any of its terms or conditions 
are broken it becomes ipso facto void. He is certainly under sentence 
during the whole of the maximum term. After the expiration of the 
minimum term the rigor of the sentence is mitigated by the law. If he 
obtains a permit, which is not revoked, and observes its terms and con- 
ditions, he is not confined at hard labor, but it seems more nearly correct 
to say that his sentence to confinement at hard labor is for the maximum 
term than to say that it is only for the minimum term. 

G. L., c. 127, § 136, provides: — 

If it appears to the board of parole that a prisoner in the reformatory 
for women . . . has reformed, it may grant her a permit to be at liberty 
during the remainder of the term for which she might be held therein. 

Acting under this statute, the Board of Parole estabhshed 
Rule 10 for prisoners in the Reformatory, which provides: — 

An inmate committed to the Reformatory upon a sentence of over 
five years shall have the right to make an application for a hearing on the 
question of his parole one month before he shall have served one-half of 
liis sentence. 

I am therefore of the opinion that the prisoner's sentence 
is eight years, and that under the present rule she may apply 
for a hearing on the question of parole after serving three 
years and eleven months. 

I call your attention to G. L., c. 127, § 131, which provides 
that a prisoner in the State Prison may be paroled after he 
has served two-thirds of the minimum term, provided he 
has served at least two and one-half years. In the instant 
case, if the prisoner were a male, sentenced to the State 
Prison, he would be eligible for parole in three years and four 
months. Women cannot be sent to the State Prison, and 
it would seem that the intent of the Legislature was to make 
them subject to parole sooner than prisoners in the State 



194 OPINIONS OF THE ATTORNEY-GENERAL. 

Prison. Under the existing rule, however, it may frequently 
happen that women must serve a proportionately longer 
period of time before being eligible for parole. 



Civil Service — Veteran — Service in the Army or 
Navy of the United States — Discharge from 
Draft. 

a person is not a "veteran," within the meaning of G. L., c. 31, § 21, who was 
discharged from the draft at Camp Devens, on October 12, 1917, by reason 
of physical disability, such person having been inducted into the service from 
the jurisdiction of the local board for No. 21, Boston, on October 1, 1917. 

Discharge from the draft is not the equivalent of an honorable discharge from 
service in the Army of the United States. 

m?Rsk.nfr°^" You Tequest my opinion on the following question: Is a 

civu^service. p^j-gon a "veterau," within the meaning of G. L., c. 31, § 21, 
' ^''— " who was discharged from the draft at Camp Devens, on 

October 12, 1917, by reason of physical disability, said 
person having been inducted into the service from the 
jurisdiction of the local board for No. 21, Boston, on October < 
1, 1917? 

G. L., c. 31, deals with the civil service. Section 21 thereof i 
defines a "veteran" as follows: — j 

The word "veteran" as used in this chapter shall mean any person who i 
has served in the army, navy or marine corps of the United States ini 
time of war or insurrection and has been honorably discharged from such l| 
service or released from active duty therein, or who distinguished him- 
self by gallant or heroic conduct while serving in the army or navy of the i 
United States and has received a medal of honor from the president of' 
the United States, provided that such person was a citizen of the common- ' 
wealth at the time of his induction into such service or has since acquired 
a settlement therein; and provided further that any such person who at 
the time of entering said service had declared his intention to become a 
subject or citizen of the United States and withdrew such intention under 
the provisions of the act of congress approved July ninth, nineteen hun- 
dred and eighteen, and any person designated as a conscientious objector 
upon his discharge, shall not be deemed a "veteran" within the meaning 
of this chapter. 



JAY R. BENTON, ATTORNEY-GENERAL. 195 

The answer to your question turns upon what is meant by 
"service" in the Army, Navy or Marine Corps of the United 
States in time of war or insurrection, and "honorable dis- 
charge" therefrom; in other words, does the phrase "honor- 
ably discharged" mean an honorable discharge as that ex- 
pression is commonly understood in mihtary terms, or does 
it mean any discharge other than a dishonorable one? 

The meaning of such expressions as "entering the service," 
"drafted into the service" or "actually mustered into the 
service" has been interpreted and decided in several cases 
immediately following the Civil War. 

In the case of French v. Sangerville (1867), 55 Me. G9, the 
court said : — 

It is contended that a drafted man is actually mustered into the mili- 
tary service as soon as drafted and notified of the fact. In a certain sense 
he is, undoubtedly, under martial law, so far that he may be treated as a 
deserter if he does not report himself to the provost marshal's office. But 
is he thereby actually mustered in, within the meaning of the statute? 
. . . When a drafted man reports himself, he must first be examined by 
the surgeon, as to his physical fitness. If found sound and able-bodied, 
he is then mustered actually into the military service. . . . Would it be 
seriously contended that a drafted man who had simply reported and 
been found unfit for the service, and had thereupon been released from 
all claim on him under the draft, had been actually mustered into the 
military service, and was therefore entitled to be paid, under this provi- 
|sion of the act of ratification? . . . The legislature certainly intended 
I something beyond a mere drafting into service, or they would have sim- 
ply said "all drafted men." ... We are satisfied that the case before 
us IS not within the clause of ratification, because the plaintiff has not 
shown that he was ever "actually mustered into the military service of 
the United States." 

See also Mahoney v. LincolnviUe (1868), 56 Me. 450. 

In Reed v. Sharon (1868), 35 Conn. 191, it was held that 
3ne was not drafted into the service until he had had a 
physical examination and had been accepted by the board 
)f enrolhnent; and that one was not so drafted merely 
because he was notified by the proper authorities that he had 
)een drafted into the military service of the United States 



196 OPINIONS OF THE ATTORNEY-GENERAL. 

and required to appear at a specified date for examination. 
See also Gregg v. Jamison (1867), 55 Pa. 468. 

Under a statute authorizing a bounty to men, "drafted 
into the military service of the United States and serving 
therein," it was held that one was not entitled to a bounty 
who was drafted in February, 1865, reported to the deputy 
provost marshal, was examined and held to service, and then 
furloughed, and discharged in April, 1865, at the close of 
the war, without being mustered into service. See Flynn 
V. Allen (1865), 26 Phila. Leg. Int. 37. 

In Bickford v. Brooksville (1867), 55 Me. 89, it was held 
that one was not entitled to a bounty, who, at the time he 
was drafted from the town, was working in the navy yard, 
reported to the provost marshal's office, where he was 
examined and accepted, was furloughed, returned to the 
navy yard and remained at work, and was finally discharged 
because the town's quota was filled by volunteers, such 
person not being a "drafted" man within the meaning of a 
vote of a town awarding $350 "for each drafted man to fill 
our quota." 

The proposition that one is not mustered into the military 
or naval service of the United States merely because he is 
drafted, reports pursuant to a notice to report at a certain 
rendezvous under pain of being deemed a deserter and 
subject to the penalty prescribed therefor by the rules and 
articles of war, is apparently well settled. 

In construing the soldiers' bonus law this department has 
ruled that the provisions of Gen. St. 1919, c. 283, granting 
a war bonus to men honorably discharged from the service 
of the United States in the World War do not apply to 
drafted men who were passed by the draft board, sent to 
Army camps and there discharged because physically 
disqualified, or to men discharged on account of bad con- 
duct or similar ground. See V Op. Atty. Gen. 405. In 
said opinion the following language was used : — 



JAY E. BENTON, ATTORNEY-GENERAL. 

In my judgment, ... it cannot be said that the class of men to which 
you refer was enUsted in or had been enrolled in or had been mustered 
into the Federal service, within the meaning of this statute. These men 
were never in the army of the United States to a sufficient extent to be 
discharged from it. In my opinion, it cannot be said that they performed 
"services ... in the army ... of the United States" of the character 
intended by this statute to be recognized. Accordingly, I must advise 
you that men of the class to which you refer are not entitled to the bene- 
fits of the statute. 

So also this department has ruled that, in view of the 
express provision of Gen. St. 1919, c. 290, § 9, which in- 
corporates into said section 9 the limitations prescribed 
by section 3 of said act, a man enrolled in the United States 
naval reserve force, who is called for active duty but who 
is almost immediately discharged for a disability not in- 
curred in said service, is not entitled to military aid in the 
first, second, third or fourth classes defined by said section 
9. See V Op. Atty. Gen. 471. 

A former Attorney General has also ruled that the ex- 
emption from all poll taxes granted by Gen. St. 1919, c. 9, 
does not include persons who were summoned in the draft 
and reported for duty but were discharged before they were 
mustered into the Federal service. See V Op. Atty. Gen. 
601. 

A similar conclusion was reached by the Supreme Court 
of Rhode Island on substantially the same set of facts as 
those involved in the case under consideration. In the case 
of Gilbert John Bannister v. Soldiers' Bonus Board, 43 R. I. 
346, decided February 11, 1921, the court held that a draftee 
who, in obedience to orders from the War Department, 
presented himself at the designated place for induction into 
the service, is not, where he is sent to a military camp and 
rejected from the draft ten days later because of physical 
disabihty, within the operation of a statute providing a 
bonus for each enlisted man "who is mustered into the 
Federal service and reports for active duty." In that case 
the court used the following language : — - 



197 



198 OPINIONS OF THE ATTORNEY-GENERAL. 

We assume that the petitioner was passed by the local draft board, 
and, from the above order directing him to present himself at the State 
House, it would appear that he was inducted into the military service, 
but it was the intention of the Selective Service Law (U. S. Comp. Stat. 
§§ 2044a-2044k, 9 Fed. Stat. Anno., 2d ed., pp. 1136-1163) that each 
person inducted into the military service should be finally examined and 
accepted or discharged upon his arrival at the mobihzation camp. Sec- 
tion 166 of the Selective Service Regulations prescribed by the President 
under the authority vested in him by the terms of the Selective Service 
Law provides that all men inducted into the service shall at the mobiliza- 
tion camp be finally accepted or rejected within fifteen days after the 
date of the registrant's induction into service. The petitioner was "in- 
ducted" into the military service, but he was not "mustered" into the 
service. 

To entitle the petitioner to a bonus from the state he must have been 
recognized by the War or Navy Department as an enlisted man; he must 
have been "mustered into the Federal service" and he must have reported 
for active duty. The petitioner never had an opportunity to report for 
active duty. His experience with the draft never brought him to the 
stage where it was possible for the Army or Navy Department to order 
him to attack the enemy or endure other perils of war. He was not 
called for active duty. His name was selected by lot as were the names 
of all other persons who were called by the draft, and he, like the others, 
was ordered to report to a camp for final examination to determine his 
fitness for active duty. Had the petitioner successfully passed the physi- 
cal examination, he probably would have been enrolled as a member of 
the Army and assigned to active duty in a training camp. 

When the petitioner was drafted, or, in other words, inducted into the 
service, he became subject to military law and regulations. Section 6 
of the Act of May 18, 1917, entitled "An Act to authorize the President 
to increase temporarily the military establishment of the United States," 
provides that any person who fails or neglects to perform any duty 
required of him in the execution of said act shall "if subject to military 
law ... be tried by court-martial and suffer such punishment as a court- 
martial may du'ect." It was the intention of Congress, as expressed in 
the two acts last above cited, that a person should be subject to the mili- 
tary law during the time intervening between his induction into the serv- 
ice and his final acceptance or rejection. The purpose evidently was 
to prevent the government, in the emergency, from being hampered by 
the delays incident to procedure in the civil courts. A person, however, 
may be subject to military law and regulations without being a member 



JAY E. BENTON, ATTORNEY-GENERAL. 199 

of the Army, and it does not follow that a man must be a member of the 
Army to be the subject of court-martial. 

I am consequently of the opinion that the "discharge 
from draft" which was received by the person referred 
to in your inquiry is not the equivalent of an honorable 
discharge from service in the Army of the United States, 
and that the person is accordingly not a "veteran," within 
the meaning of G. L., c. 31, § 21. 



of Parole. 

1923 
June 12. 



Prisoners — Application for Parole — Hearings. 

A prisoner alone may apply for a permit to be at liberty. 

Whether the Board of Parole will hear persons other than the prisoner, in his 
behalf, is a matter within its own discretion. 

You have requested my opinion as to whether, under the JfVaroi^'"*'^'' 
provisions of G. L., c. 127, §§ 131 and 132, any person other 
than the prisoner may make application for a permit to be 
at liberty, and whether any person other than the prisoner 
may appear before the Board of Parole to speak in his 
behalf, 

G. L., c. 127, § 131, confers power upon the Board, under 
certain circumstances, to grant a special permit to be at 
liberty to a prisoner confined in the State Prison. 

Section 132 provides: — 

Any prisoner eligible for a release in accordance with the preceding 
section may apply for a permit to be at liberty as therein provided. The 
application shall be transmitted to the board of parole by the warden 
ot the state prison or the superintendent of the Massachusetts reforma- 
tory, who shall send with it a report of the prisoner's conduct and in- 
dustry, a statement concerning the prisoner's health, and any other in- 
formation respecting the case which the warden or superintendent can 
supply; and the board shall not entertain any other form of application or 
petitimi for the release of a prisoner under the preceding section. 

I am of the opinion that the prisoner alone may apply 
for a permit to be at liberty, and that an application from 



200 OPINIONS OF THE ATTOKNEY-GENERAL. 

any other source may not be entertained by the Board. 
There is nothing in the statute which prohibits the Board 
from permitting persons other than the prisoner to appear 
before it and speak in his behalf, after his apphcation for 
a permit to be at Hberty has been transmitted to the Board, 
in accordance with section 132. Whether the Board will 
hear such persons is within its own discretion. 



June 23. 



Savings Banks — Savings Departments of Trust Com- 
panies — Authorized Investments — Construction , 
of Indenture with Relation to Bond Issues. | 

Certain railroad bonds, the authorized issue of which, by the terms of the indenture, ll 
can never exceed, with all outstanding debts, three times the value of the 
capital stock, are a legal investment for savings banks and savings depart- 
ments of trust companies. 

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

niissioner ot ~l ^ sr 

^T923 vill® ^ Nashville Railroad Company first and refunding 

mortgage bonds, dated Aug. 1, 1921, are a legal investment 
for the saving banks and savings departments of trust 
companies of this Commonwealth, in view, more particu- 
larly, of the fact that an indenture, dated Nov. 21, 1922, 
supplemental to the said first and refunding mortgage, has 
been made by the Louisville & Nashville Railroad Company 
and the trustee named in the original mortgage. 

For the purposes of your question, the savings departments 
of trust companies stand in the same position as savings 
banks, as it is provided by G. L., c. 172, § 61, that all invest- 
ments of the savings departments of trust companies shall 
be made in accordance with the law governing the invest- 
ment of deposits in savings banks. 

Prior to 1908 all the railroads whose bonds were then 
authorized for investment of the character considered here 
were mentioned specifically in the statutes, with the ex- 
ception of the general laws for the authorization of bond;- 
of railroads incorporated in this State and in New England. 
A committee, consisting of the Bank Commissioner, th( 



i 



JAY R. BENTON, ATTORNEY-GENERAL. 201 

Treasurer and Receiver General and the Commissioner 
of Corporations, made a report, with suggestions of changes 
in the General Laws of this State relating to savings banks. 
They completely redrafted the paragraph relating to rail- 
road bonds in three divisions, all of which were entirely 
general in their terms, viz.: (1) Massachusetts railroads; 
(2) New England railroads; (3) other railroads. Referring 
to the third division, the committee said: — 

In providing for the admission of the bonds of railroads operating in 
any of the United States we have felt it necessary to make much stricter 
requirements than in the case of railroads in New England, where rail- 
road conditions are more established. Severe tests have, therefore, been 
provided for both the corporation and the bonds themselves. 

The statutory provisions as enacted by the 1908 Legis- 
lature, based upon the aforesaid report, appear practically 
verbatim in the General Laws in force at this time. 

G. L., c. 168, § 54, subdivision 3rd, ig) (3), authorizes the 
investment by savings banks in refunding mortgage bonds 
complying with certain conditions. Said section 54, sub- 
division 3rd, (e) (5), provides as follows: — 

No bonds shall be made a legal investment bj' subdivision ig) in case 
the mortgage securing the same shall authorize a total issue of bonds 
which, together with all outstanding 'prior debts of the issuing or assuming 
corporation, including all bonds not issued that may legally be issued 
under any of its prior mortgages or of its assumed prior mortgages, after 
deducting therefrom, in case of a refunding mortgage, the bonds resei'ved 
under the provisions of said mortgage to retire prior lien debts at maturity, 
I shall exceed three times the outstanding capital stock of said corporation 
at the date of such investment. 

Section 1 of Article One of the Louisville & Nashville 
first and refunding mortgage provides as follows: — 

The authorized issue of bonds under this indenture is limited so that 
the amount thereof at any one time outstanding, together with all other 
then outstanding prior debt, as hereinajter defined, of the Railroad Company, 
after deducting therefrom the amount of all bonds reserved under the 



202 OPINIONS OF THE ATTORNEY-GENERAL. 

provisions of this indenture to retire prior debt at or before maturity, 
shall never exceed three times the par value of the then outstanding fully 
paid capital stock of the Railroad Company or of a successor corporation. 

The second paragraph following defines "prior debt" as 
follows : — • 

In determining at any time and from time to time the limit of the 
authorized issue of bonds hereunder, the prior debt so to be added is 
that which at the time may remain unpaid on the principal of the bonds 
specified in Section 3 of Article Three of this indenture, and of the bonds 
which hereafter shall be included in prior debt under Sections 4 and 5 of 
said Article Three (but not including any of either class of said bonds 
deposited with and held by the Trustee as provided in Section 6 of said 
Article Three) and the "reserved bonds" to be deducted are the bonds, 
issuable under this indenture, which at that time are reserved for the 
purpose of refunding prior debt as provided in said Article Three. The 
term "prior debt," wherever used in this indenture, means the aggregate 
bonded indebtedness ascertained and determined in accordance with this 
paragraph of this Section 1 of Article One of this indenture. 

The answer to your inquiry rests upon the interpretation 
of the words ''outstanding prior debts" as found in the 
statute [G. L., c. 168, § 54, subdivision 3rd, (e) (5) and (6)]. 
Are these words to be construed to mean all pre-existing 
debts or debts prior in time, or do they mean prior lien debts; 
in other words, debts secured by a prior lien on the property 
covered? 

The bonds specified in Section 3 of Article Three of the 
Louisville & Nashville first and refunding mortgage are 
bonds for the retirement of which bonds under the mortgage 
are reserved, amounting to $176,260,500, being all, with 
the exception of one, underlying mortgage bonds secured 
by prior lien on the property covered by the refunding 
mortgage. 

The present outstanding capital stock of the Louisville 
& Nashville Railroad being $72,000,000, the authorized 
issue under the mortgage, under the interpretation that the 
words "prior debts" mean "prior lien debts," following the 



JAY R. BENTON, ATTORNEY-GENERAL. 203 

method described in subdivision (e) (5) of the Massachusetts 
statute, would be: Authorized issue X, plus all outstanding 
prior debts ($176,260,500), minus the bonds reserved to 
retire prior lien debts ($176,260,500), equals three times 
the capital stock, or $216,000,000. In other words, the 
total amount of bonds that may be issued under the mortgage 
is $216,000,000. However, it is to be noted that in ad- 
dition to the $176,260,500 underlying bonds for which bonds 
are reserved under the mortgage in question, the Louisville 
& Nashville Railroad has outstanding the following issues 
of bonds: 

$3,500,000 Southeast & St. Louis Division first 6s, 1971. 
3,000,000 Southeast & St. Louis Division second 3s, 1980. 

These bonds are direct obligations of the Louisville & 
Nashville Railroad secured by mortgage on the property 
of the Southeast & St. Louis Railway, which is a separate 
corporation. As the property is not owned by the Louis- 
ville & Nashville Railroad, the mortgage in question does 
not cover the property, and therefore the railroad is not 
obliged to reserve bonds under the mortgage for their retire- 
ment. But if the words ''prior debts," as found in our 
statute, are to be construed as meaning pre-existing debts 
or debts prior in time, these outstanding bonds would have 
to be considered in computing the authorized issue of the 
mortgage. Construing the words to mean pre-existing 
debts, the authorized issue would be as follows : Authorized 
issue X, plus all outstanding prior debts ($176,260,500 plus 
$3,500,000 Southeast & St. Louis Division first 6s, plus 
$3,000,000 Southeast & St. Louis Division second 3s), 
minus bonds reserved to retire prior lien debts at maturity 
($176,260,500), equals three times the capital stock, or 
$216,000,000. This amount is $209,500,000, as foUows: — 



204 OPINIONS OF THE ATTORNEY-GENERAL. 

Authorized issue X $209,500,000 

Plus prior debts 182,760,500 



$392,260,500 
Minus amount reserved to retire prior 

lien debts 176,260,500 



$216,000,000 



In my opinion, the Legislature intended that there should 
be a fixed relation of the total debts of a railroad corporation 
to its capital stock, and not merely the prior lien debts to the 
bonds in question; that the words "outstanding prior debts" 
mean all pre-existing debts of the railroad corporation; 
that, in the given case, this interpretation requires that the 
outstanding issue of the Southeast & St. Louis Division 
railroad bonds, totaling $6,500,000, are to be included in 
the debts in computing the amount of bonds authorized 
by the terms of the mortgage. Following this interpretation, 
the Louisville & Nashville Railroad Company mortgage 
authorizes $6,500,000 of bonds in excess of the hmit set 
down by subdivision (e) (5) and (6) . 

In view of the foregoing considerations, I am of the opinion 
that the bonds in question were not legal investments for 
the savings banks nor for the savings departments of trust 
companies of this Commonwealth under the terms of the 
first and refunding mortgage as orginally drawn. However, 
the indenture made on Nov. 1, 1922, already referred to, 
completely changes the situation. In this supplemental 
indenture an attempt has been made by the Louisville <fe 
Nashville Railroad to cure the defect in the position of its 
bonds by modifying the terms of the first mortgage so that 
the words "prior debts," used in said mortgage, shall be 
interpreted in their natural significance as "antecedent 
debts," and not as defined in section 1 of article one (p. 58) 
of the first mortgage itself, so as to mean only debts "superior" ' 
to others because secured by a lien on the property of the I 



JAY R. BENTON, ATTORNEY-GENERAL. 205 

railroad, and in this attempt the railroad appears to have 
been successful. 

The supplemental indenture appears to have been prop- 
erly issued, for, under the provisions of article eleven of the 
first mortgage, the railroad company, when authorized by 
its board of directors and the trustee under such mortgage, 
had the authority to enter into a supplemental indenture 
which shall thereafter form part of the original indenture 
and which may deal with almost any portion of the indenture 
itself. 

(a) To convey, transfer and assign to the Trustee and to subject to 
the lien of this indenture, with the same force and effect as though in- 
eluded in the granting clause hereof, additional railroads or leases thereof, 
bonds, shares of capital stock, equipment and any other property then 
owned by the Railroad Company, acquired by it through consolidation 
or merger or by purchase, or otherwise. The prior debt secured by mort- 
gage to which any lines of railroad so conveyed shall be subject, shall be 
specified and described and the amount thereof stated in such supplemen- 
tal indenture; and the prior debt so specified and described shall there- 
upon and thereafter be deemed and taken to be included in Section 4 
of Article Three hereof. 

(b) To specify and state the bonded indebtedness, and the amount 
thereof, of any company which hereafter shall be consolidated with or 
merged into, or whose railroad property hereafter shall be acquired by, 
the Railroad Company, although such bonded indebtedness may not be 
secured by mortgage, which bonded indebtedness is to be regarded as 
forming a part of the prior debt of the Railroad Company, and to retire 
which, at or before maturity, bonds are to be reserved as provided in 
Section 5 of Article Three hereof. 

(c) To evidence the succession of another corporation to the Railroad 
Company, or successive successions, and the assumption by a successor 
corporation of the covenants and obligations of the Railroad Company 
under this indenture. 

(d) To make provision for the appointment of a co-trustee as herein- 
after provided for in Section 6 of Article Twelve of this indenture. 

(e) To make such provision as may be necessary or desirable with 
respect to any series of bonds, if any, issued under this indenture, con- 
vertible into shares of the capital stock of the Railroad Company. 

(/) To provide for the creation and maintenance of a sinking fund for 
the redemption before maturity, or the payment, of all or any part of 
any series of bonds issued hereunder, and to constitute a default in respect 



206 OPINIONS OF THE ATTORNEY-GENERAL. 

of such sinking fund an event of default with the same force and efifect 
as if the same had been so denominated in Section 2 of Article Seven 
hereof. 

(g) To add to the limitations on the authorized amount, issue and pur- 
poses of issue of bonds issuable under Section 7 of Article Three of this 
indenture, other than the limitations herein provided for. 

(h) To make provision in regard to matters or questions arising under 
this indenture as may be necessary or desirable and not inconsistent with 
this indenture. (P. 156, first mortgage.) 

These provisions are certainly broad enough to permit 
the supplemental indenture to deal with the limitation of the 
amount of bonds which may be issued. 

The supplemental indenture so made is of interest only 
because it modifies the first mortgage by altering the defi- 
nition of the words ''prior debts" as it was contained in the 
first draft, so that the words are specifically said to include 
every outstanding prior debt, whether a prior debt as 
defined by the first mortgage or not. It further stipulates 
that the authorized total issue of bonds "shall at all times 
be limited to an amount, which, together with all out- 
standing prior debts (including every outstanding prior 
debt, whether or not included within the definition of prior 
debt contained in this Indenture) . . . shall never at any 
time exceed three times the then outstanding capital stock 
of the Railroad Company. All certificates delivered to the 
Trustee by the Railroad Company, upon requisitions for 
the certification of bonds, shall, in addition to the other 
statements therein required to be contained by this In- 
denture, contain a statement of the amount of all out- 
standing prior debts, of the Railroad Company in this 
section la referred to after deducting therefrom the bonds 
reserved under the provisions of this Indenture to retire 
prior debts at maturity; such statements shall constitute 
sufficient evidence to the Trustee, as to the facts therein 
stated, and the Trustee shall be fully protected in acting 
upon the faith thereof." (Article one, section 1, sup- 
plemental indenture.) 



JAY R. BENTON, ATTORNEY-GENERAL. 207 

This change by the supplemental indenture, defining the 
words "prior debts," the source of the adverse view of the 
bonds for savings bank investment, to a definition so in- 
clusive as to cover the bonds of the Louisville & Nashville 
Southern 4% (first indenture, p. 72), clears away the existing 
difficulty. The authorized outstanding issue under the 
new provisions can never exceed, with all outstanding debts, 
three times the value of the capital stock. This places 
these bonds in a position where they will be a legal invest- 
ment for savings banks and savings departments of trust 
companies as soon as they have been properly executed. 



Wrentham State School — Admission and Discharge 
OF Pupils or Other Inmates. 

The Trustees of the Wrentham State School are not authorized to receive those 

who themselves ask admission. 
The trustees are authorized to receive those for whom application is made by 

parent or guardian. 
Such parent or guardian has no right to take away such person from the school 

without the consent of the trustees, except upon application to the court. 
If in the opinion of the trustees inmates over the school age will receive benefit 

from school instruction, the trustees are authorized to place such inmates in 

the school department. 
A minor placed in the school by his parent or guardian may be discharged after 

reaching his majority only in the discretion of the trustees or upon applica- 
tion to the court. 
A minor committed to the school may be held in the custody of the school after 

reaching his majority without a recommitment. 

My opinion is requested on certain questions relative to TotheCom- 

^ ^ 1 ^ missioner of 

the duties of the board of trustees of the Wrentham State ^geasL. 
School. j„S. 

I understand the first question presented is as follows: 
Are the trustees of the Wrentham State School authorized 
to receive in the institution persons who themselves ask 
admission? 

G. L., c. 123, § 66, provides for commitment to the school 
by a judge of probate. Sections 46 and 47 of said chapter 
are as follows : — 



208 OPINIONS OF THE ATTORNEY-GENERAL. 

Section 46. Persons received by the Massachusetts school for the 
feeble-minded and by the Wrentham state school shall be classified in said 
departments as the trustees shall see fit, and the trustees may receive 
and discharge pupils, and may at any time discharge any pupil or other 
inmate and cause him to be removed to his home. 

Section 47. The trustees of either of the state schools mentioned in 
the two preceding sections may, at their discretion, receive any feeble- 
minded person from any part of the commonwealth upon application 
being made therefor by the parent or guardian of such person, which 
application shall be accompanied by the certificate of a physician, quali- 
fied as provided in section fifty-three that such person is deficient in men- 
tal abihty, and that in the opinion of the physician he is a fit subject for 
said school. The physician who makes the said certificate shall have 
examined the alleged feeble-minded person within five days of his sign- 
ing and making oath to the certificate. The trustees of either of said 
state schools may also, at their discretion, receive any person from any 
part of the commonwealth upon the written request of his parent or 
legal guardian, and may detain him for observation for a period not 
exceeding thirty days, to determine whether he is feeble-minded. 

The statute makes no provision for admission of those 
who themselves ask admission. I am of the opinion that 
the trustees are authorized to receive only those persons 
who have been committed by the Probate Court or those 
who have been placed there upon application by the parent 
or guardian. 

The second question I understand to be as follows: Are 
the trustees authorized to receive those for whom application 
is made by parent or guardian? 

Section 47 of said chapter 123 expressly provides for such 
admission upon compliance with the requirements therein 
set forth. 

The third question presented is as follows: Can those 
who have been placed in the school upon application by 
a parent or guardian be taken from the school at any time 
the parent or guardian sees fit? 

St. 1909, c. 504, codified the law relative to insane persons. 
Section 62 thereof (now, in substance, G. L., c. 123, § 46) 
provided : — 



JAY R. BENTON, ATTORNEY-GENERAL. 209 

Persons received by the Massachusetts School for the Feeble-Minded 
and by the Wrentham state school shall from time to time be classified in 
said departments as the trustees shall see fit, and the trustees may receive 
and discharge pupils at their discretion, and may at any time discharge 
any pupil or other inmate and cause him to be removed to his home or 
to the place of his settlement. 

There is no other provision in the statute for their release 
except upon apphcation to the court. This clearly shows 
that the release of such persons, subject to the foregoing 
exception, is entirely within the discretion of the board of 
trustees. 

It is to be noted that under section 62 of said chapter 
504 the trustees were authorized to receive pupils. This 
statute did not authorize the trustees to receive persons 
into the custodial department. Gen. St. 1917, c. 223, § 2, 
however, enlarged the right of the trustees so as to receive 
persons into the custodial department. The power of the 
trustees to discharge is the same whether the inmate is in 
the school or in the custodial department. I therefore 
advise you that, in my opinion, the parent or guardian has 
no right to take away such person from the school without 
the consent of the trustees. 

Your fourth question is as follows : Have the tnistees the 
right to expend the money of the Commonwealth in giving 
instruction in the school department to persons over the 
school age? 

G. L., c. 123, § 45, reads as follows: — • 

The Massachusetts school for the feeble-minded and the Wrentham 
state school shall each maintain a school department for the instruction 
and education of feeble-minded persons who are witliin the school age or 
who in the judgment of the trustees thereof are capable of being benefited 
b}'' school instruction, and a custodial department for the care and custody 
of feeble-minded persons beyond the school age or not capable of being 
benefited by school instruction. 

It is clear from this section that it is discretionary with 
the trustees whether or not a person over the school age 



210 OPINIONS OF THE ATTORNEY-GENERAL. 

shall be placed in the school department. If, in the opinion 
of the board of trustees, such person will receive benefit 
from school instruction, they are authorized to place such 
person in the school department, irrespective of age. 

Your fifth question is as follows: May any person who, 
while a minor, was placed in the institution by his parent or 
guardian be retained in the school against his will after 
reaching the age of twenty-one? 

This question falls under G. L., c. 123, § 46, and such a 
person may be discharged from the school only in the 
discretion of the board of trustees, except, of course, that 
such a person or his parent or guardian may apply to the 
court for discharge. 

Your sixth question is as follows: Can a person who was 
committed to the school while a minor be held in the custody 
of the school after reaching the age of twenty-one, without 
a recommitment? 

G. L., c. 123, § 66, provides for commitment, and author- 
izes custody of the person until he shall be discharged by 
order of the court or otherwise in accordance with law. 
Without a court order such person may be held by the school 
until such time as, in the opinion of the trustees, he should 
be discharged. The fact that he arrives at the age of 
majority in no way concerns this question. 



National Guard — Practising Rifle or Pistol Shoot- 
ing ON Rifle Ranges on Sundays. 

The discharge of firearms on Sunday for sport or in the pursuit of game is prohibited. 
Members of the National Guard may legally practise rifle or pistol shooting on a 
rifle or pistol range on Sundays, in the course of their military training. 

tantGen'^raf ^o\i request my opinion as to whether it is legal for 

junfis members of the NationaL Guard to practise rifle or pistol 

shooting on any rifle or pistol range within the Common- 
wealth on Sundays. You state that this practise constitutes 
an important part of their military training, and that, 



JAY R. BENTON, ATTORNEY-GENERAL. 211 

owing to the limited amount of time at the disposal of the 
members of the National Guard, it is desired that this duty 
shall be performed on Sundays. 

G. L., c. 136, § 17, provides, in part: — 

Whoever on the Lord's day discharges any firearm for sport or in the 
pursuit of game, . . . shall be punished by a fine of not more than ten 
dollars. . . . 

The discharge of firearms for sport or in the pursuit of game 
is thereby prohibited. The discharge of firearms by 
members of the National Guard, under the circumstances 
to which you refer, is not a discharge for sport or in the 
pursuit of game. Rifle and pistol practice is in the line of 
military duty and, as you state, is an important part of 
the military training. 

I am of the opinion that members of the National Guard 
may legally practise rifle and pistol shooting on a rifle or 
pistol range within the Commonwealth on Sundays in the 
course of their military training. 



Standard Box for Farm Produce — Requirements as 
TO Marking Boxes — Use of Risers in Packing 
Apples. 

Au apple grower who uses boxes which are standard according to St. 1921, c. 248, 
must mark said boxes, if they contain apples, in accordance with the require- 
ments of both said chapter 248 and G. L., c. 94, § 104. 

The dimensions of the standard box for farm produce sold at wholesale, as defined 
in St. 1921, c. 248, are not affected by the fact that in some instances, where 
such box is used for the packing of apples, risers, so called, about five eighths 
of an inch thick, are placed on the ends of the box; if the box contains the 
dimensions required by statute it constitutes a standard box. 

You request my opinion as to whether an apple grower T9theCom- 

•■ '■ <^ missioner of 

who uses boxes which are standard according to St. 1921, ^f^^f^"^^^- 
c. 248, is obliged to mark such boxes both in accordance -^""^ ^^- 
with the apple grading law and in accordance with the 
standard box law. You also request my opinion as to 



212 OPINIONS OF THE ATTORNEY-GENERAL. 

whether a box of the same dimensions as the standard box 
is to be considered standard if the ends are built higher 
than the sides, or if risers are added to the ends, in order 
properly to pack apples so as to fill the standard box even 
full and permit covering, or whether in either or both cases 
the boxes are not to be considered standard, and thus not 
subject to marking as prescribed in chapter 248, supra. 
St. 1921, c. 248, § 1, provides as follows: — 

. . . The Massachusetts standard box for farm produce sold at whole- 
sale, except as otherwise provided, shall contain two thousand one hun- 
dred fifty and forty-two one hundredths cubic inches and shall be of the 
following dimensions by inside measurements: seventeen and one half 
inches in length by seventeen and one half inches in width and seven and 
one sixteenth inches in depth. The Massachusetts standard half box 
for farm produce sold at wholesale shall contain one thousand seventy- 
five and twenty-one one hundredths cubic inches and shall be of the fol- 
lowing dimensions by inside measurements: twelve and three eighths 
inches in length by twelve and three eighths inches in width and seven and 
one sixteenth inches in depth. When the above specified boxes are made 
of wood the ends shall be not less than five eighths inches in thickness and 
the sides and bottom not less than three eighths inches in thickness. All 
such boxes and haK boxes of the dimensions specified herein shall be 
marked on at least one outer side in bold, uncondensed capital letters, 
not less than one inch in height: — Standard Box Farm Produce, — and, 
— Standard Half Box Farm Produce, — respectively. Whoever marks 
or otherwise represents any box or half box to be a standard box or half 
box for the sale of farm produce at wholesale shall, unless such box or 
half box compUes with every specification and requirement of this section, 
be punished by a fine of not more than fifty dollars. The director of 
standards in the department of labor and industries, his inspectors and 
the sealers and deputy sealers of weights and measures in cities and towns 
shall enforce the provisions of tins section. 

G. L., c. 94, § 104, provides as follows: — 

Each closed package of apples packed or repacked within the common- 
wealth and intended for sale within or without the commonwealth, shall 
have marked in a conspicuous place on the outside of the package in plain 
letters a statement of the quantity of the contents, the name and address 
of the person by whose authority the apples were packed, the true name 
of the varietj^ and the grade and minimum size of the apples contained 



JAY R. BENTON, ATTORNEY-GENERAL. 213 

therein, in accordance with sections one hundred and one and one hundred 
and three, and the name of the state where they were grown. If the true 
name of the variety is not known to the packer or other person by whose 
authority the apples are packed, the statement shall include the words 
"variety unknown," and if the name of the state where the apples were 
grown is not known, this fact shall also be set forth in the statement. If 
apples are repacked, the package shall he marked "repacked," and shall 
bear the name and address of the person by whose authority it is repacked, 
in place of that of the person by whose authority they were originally 
packed. 

This section pertains to packages containing apples, 
while St. 1921, c. 248, pertains to ''standard for boxes and 
half boxes for farm produce sold at wholesale." Each 
statute contains a mandator}^ requirement as to marking 
on the outside of the package or box. I am accordingly 
of the opinion that an apple grower who uses boxes which 
are standard according to St. 1921, c. 248, must mark said 
boxes, if they contain apples, in accordance with the require- 
ments of both said chapter 248 and G. L., c. 94, §104. 

The dimensions of the standard box for farm produce 
sold at wholesale, as defined in St. 1921, c. 248, are not, in 
my opinion, affected by the fact that in certain instances, 
where said box is used for the packing of apples, risers, so 
called, about five-eighths of an inch thick, are placed on 
the ends of the box, inasmuch as it appears that most 
varieties of apples will not pack in such a way as to fill 
the standard box even full but will over-run somewhat so 
that they cannot be covered unless the sides or ends of the 
box are increased in height. The purpose of the risers is 
obviously merely to permit the box to be suitably covered, 
and if the box contains the dimensions provided for in said 
act I am of the opinion that it constitutes a standard box, 
as therein defined, although in the cases referred to it is 
necessary to attach such risers. 



214 opinions of the attorney-general. 

Insurance — Policies to Tobacco Growers for Damage 
BY Hail — Difference in Cost of Policies to Dif- 
ferent Persons, based on Membership or Non- 
membership IN AN Association of Tobacco Growers 
— Rebates. 

G. L., c. 175, § 182, prohibits the giving by an insurance company of a lower rate 
to certain insureds merely because the favored insureds are members of a 
particular association. 

There may be an allowable difference in rates for policies to tobacco growers, if 
it is based upon a reasonable mode of classifying the insureds. 

m?9sionS°of' You ask me for an opinion as to whether or not the course 

insm-ance. followed by an insurance company in issuing policies to 
"^^ ■ tobacco growers generally, for damage by hail, at a regular 

rate of $50 an acre, while at the same time it sells policies 
of a similar character to members of an association of tobacco 
growers, and to them only, at a rate of $24, is, under all the 
circumstances, a violation of G. L., c. 175, § 182, which 
forbids the giving of rebates and other advantages to 
certain customers. 

As I understand the letter given to you by the vice-presi- 
dent of the insurance company in answer to a letter written 
by a tobacco grower (hereinafter called the ''complainant"), 
the insurance company does give, if desired, to some 2,000 
members of the tobacco association insurance against loss 
by hail, at the rate of $24 an acre, but will not sell at this 
price to non-members, of whom the complainant is one. 
The insurance company contends that this lower rate given 
to these particular persons, is not in the nature of a rebate 
or other advantage forbidden by the statute, because the 
members of this association agree to write eighty per cent 
of their insurance with this particular insurance company; 
that much of this tobacco so offered for insurance is in other 
and more desirable localities than that of the complainant, 
and so more desirable as a risk to the company ; and that also 
the members of the association agree to write their fire 
insurance on their tobacco, as well as their hail insurance, 



JAY R. BENTON, ATTORNEY-GENERAL. 215 

with this insurance company, which the complainant does 
not do. 

The statute under consideration is as follows (G. L., c. 
175, § 182): — 

No company, no officer or agent thereof and no insurance broker shall 
pay or allow, or offer to pay or allow, in connection with placing or nego- 
tiating any policy of insurance or any annuity or pure endowment con- 
tract or the continuance or renewal thereof, any valuable consideration 
or inducement not specified in the policy or contract, or any special favor 
or advantage in the dividends or other benefits to accrue thereon; or shall 
give, sell, or purchase, or offer to give, sell or purchase, an j- thing of value 
whatsoever not specified in the policy; or shall give, sell, negotiate, deliver, 
issue, or authorize to issue or offer to give, sell, negotiate, deliver, issue, 
or authorize to issue any policy of workmen's compensation insurance 
at a rate less than that approved by the commissioner. No such com- 
pany, officer, agent or broker shall at any time pay or allow, or offer to 
pay or allow, any rebate of any premium paid or payable on any policy 
of insurance or any annuity or pure endowment contract. 

The statute is aimed to prevent discrimination between 
individuals of the same class. To favor one particular 
member of a class merely because he buys more insurance 
or more kinds of insurance than another is prohibited by 
the statute. V Op. Atty. Gen. 543. 

Nevertheless, there is no doubt but that there may be 
made a reasonable classification among insurers of the same 
kind of property, based not upon volume of business but 
upon quality; that is, upon a less hazardous undertaking. 
It may be that, under the arrangement made between the 
company and the association referred to, a class of insureds 
different from the one to which the complainant belongs 
may reasonably be said to exist. The fact that the proper- 
ties of this latter class are in widely scattered localities, 
and in widely separated areas, where the average hazard 
will not be as great as in the district in which alone the 
assured desires property insured, may be, if the facts justify 
it, a reasonable mode of classification which would give no 
undue advantage to one assured over another, within the 



216 OPINIONS OF THE ATTORNEY-GENERAL. 

meaning of the statutes. Whether all the facts necessary 
to be ascertained relative to the business of tobacco growing 
make such a form of classification reasonable, is itself a 
question of fact, upon which it is not my province to pass. 
The mere fact that the members of the association of 
growers offered a larger volume of business than that offered 
by the complainant, would not, in itself, furnish a reasonable 
ground for placing them in a different classification as to 
rates. The mere fact that they were members of an asso- 
ciation, as such, would not make their classification reason- 
able. The mere fact that they offered to place fire insurance 
as well as hail insurance, would not make the classification 
reasonable. But if the facts in this particular trade, relative 
to variation in the grade of tobacco grown in various local- 
ities, show that the tobacco offered by members of this 
association, by reason of the variety of the places of growth, 
tends to make the offerings, on the whole, much less hazard- 
ous risks, than the risk offered by the complainant's tobacco 
from a single and possibly unfavorable locality, then it is 
possible that, as I have said, as a matter of fact a classi- 
fication of insureds, such as was practised by this insurance 
compatiy, might not be unreasonable. 



Taxation — Foreign Corporations — Allocation of 

Income. 

Under Gen. St. 1919, c. 355, §§ 19 and 20 (G. L., c. 63, §§ 41 and 42), a foreign 
corporation must give notice in each year of its refusal to accept determination 
of income allocable to the Commonwealth by the statutory method provided 
by section 19, as a basis of its right to have its net income derived from busi- 
ness carried on within the Commonwealth determined by the alternative 
method provided by section 20. 

Jf°ASpeann'^ You have requested my opinion in the matter of an excise 
Tax Cases., ^^^ assesscd upou the Childs Dining Hall Company for the 
ju^3. yg^j. ]^g21. The following facts appear from the statement 

contained in your request. 

The Childs Dining Hall Company is a foreign corporation 



JAY R. BENTON, ATTORNEY-GENERAL. 217 

doing business in this Commonwealth and in other States. 
Under date of April 8, 1920, in accordance with the statutory 
provisions contained in Gen. St. 1919, c. 355, §§ 19 and 20 
(G. L., c. 63, §§41 and 42), the company notified the Com- 
missioner of its refusal to accept the determination of its 
net income derived from business carried on within the 
Commonwealth in the manner provided by section 19, and 
thereafter filed its return for the year 1920 with its own 
allocating method attached thereto. The Commissioner 
assessed a tax for the year 1920 on the basis of the allocating 
method set out in the statute, and the company appealed to 
the Board of Appeal, which subsequently revised the de- 
termination of the Commissioner. 

While the application for a hearing by the Board of Appeal 
was pending and before the hearing, the time arrived for 
the filing of the 1921 return. The corporation filed its 
return for that year on or about May 11, 1921, with a 
statement of reasons for late filing and with the same 
allocating method as in 1920. No refusal to accept the 
statutory method was filed with respect to the return for 
1921, unless the notification of April 8, 1920, constituted 
such notification or unless such notification may be inferred 
from the pending proceedings relative to the 1920 tax. 

The Commissioner determined the 1921 tax by the method 
provided by G. L., c. 63, § 41. The company paid the tax 
under protest, and after numerous hearings the Com- 
missioner refused to abate the tax and the company appealed 
again to the Board of Appeal. You ask whether the Board 
of Appeal can act favorably upon the appeal. 

G. L., c. 63, §§ 41 and 42, are as follows: — 

Section 41. The Commissioner shall determine in the manner pro- 
vided in this section the part of the net income of a foreign corporation 
derived from business carried on within the commonwealth. 
The following classes of income shall be allocated as follows: 
(a) Gains realized from the sale of capital assets, if such assets consist 
of real estate or tangible personal property situated in the commonwealth, 
shall be allocated to this commonwealth. 



218 OPINIONS OF THE ATTORNEY-GENERAL. 

(6) Interest received from any corporation organized under the laws 
of the commonwealth or horn any association, partnership or trust having 
transferable shares and having its principal place of business in the 
commonwealth, or from any inhabitant of the commonwealth, except 
interest received on deposits in trust companies or in national banks 
doing business in the commonwealth, shall be allocated to this common- 
wealth. 

(c) Gains realized from the sale of capital assets other than those 
named in paragraph (a) above shall not be allocated in any part to this 
commonwealth. 

Income of the foregoing classes having thus been allocated, the re- 
mainder of the net income as defined in section thirty shall be allocated 
as follows: 

If a foreign business corporation carries on no business outside this 
commonwealth, the whole of said remainder shall be allocated to this 
commonwealth. 

If a foreign business corporation carries on any business outside this 
commonwealth, the net income taxable under this chapter shall be de- 
termined as provided in section thirty-eight. _ 

Section 42. A foreign corporation carrying on part of its business 
outside the commonwealth may, in lieu of the allocating method required 
by the preceding section for determining the amount of business assign- 
able to this commonwealth, refuse to accept such determination by noti- 
fication thereof to the commissioner on or before the time when its income 
tax return under this chapter is due to be filed. Such a foreign corporation 
shall, within thirty days thereafter, file with the commissioner, under 
oath of its treasurer, a statement in such detail as the commissioner shall 
require, showing the amount of its annual net income derived from busi- 
ness carried on within the commonwealth. The commissioner may 
require such further information with reference thereto as he may deem 
necessary for the assessment of the tax, and shall determine the proportion 
of the net income received from business carried on within the common- 
wealth. 

It is my opinion that G. L., c. 63, § 42, and the correspond- 
ing provision of the statute of 1919 require definite action 
each year by a foreign corporation which desires to refuse 
to accept a determination of net income derived from 
business carried on within the Commonwealth according 
to the statutory method provided by the preceding section, 
by a notification each year to the Commissioner of the 
refusal of the corporation to accept such determination; 



JAY R. BENTON, ATTORNEY-GENERAL. 219 

and that such notification is not to be inferred from the 
giving of a similar notice for a preceding year or from pro- 
ceedings had in consequence of such prior notice. The 
reference in section 42 to ''the time when its income tax 
return under this chapter is due to be filed" and the require- 
ment that the corporation "shall, within thirty days there- 
after, file with the commissioner" the required statement, 
seem to me to preclude any other construction. I must 
advise you, therefore, that under the circumstances the 
determination made by the Commissioner seems to have 
been the only one legally permissible, and that the amount 
of the tax resulting therefrom seems to be fixed as a matter 
of law. 



Teachers' Retirement Association — Withdrawal of 
Membership — Refund — Retiring Allowance. 

A teacher who has not attained the age of sixty may withdraw from the public 
school service under the provisions of G. L., c. 32, § 11, and is entitled to receive 
from the annuity fund all amounts contributed as assessments, together with 
regular interest thereon; and having so withdrawn and received said refund, 
such teacher has thereby withdrawn entirely from the public school service. 

G. L., c. 32, § 10, par. (2), provides for a mandatory retirement from service in the 
public schools by any member of the association on attaining the age of 
seventy years, and § 10, par. (1), permits a teacher between the ages of sixty 
and seventy to apply for retirement; and on retirement such a teacher has 
withdrawn from the public school service. 

A voluntary member of the Teachers' Retirement Association sixty years of age 
or over, who has terminated his service as a teacher in the public schools, 
is not entitled to receive a refund of his contributions, but must accept the 
retiring allowance provided by the statute. 

The phrase "any member," as used in G. L., c. 32, § 10, applies to voluntary 
members, i.e., teachers who entered the service of the public schools before 
July 1, 1914, and who have elected to become members of the association, as 
well as to teachers who entered the service of the public schools for the first 
time after July 1, 1914, and thereby ipso facto became members of the asso- 
ciation by virtue of the provisions of section 7. 

You request my opinion on the following questions : — m°ssionS°^" 

Education. 
1923 

1. Can a teacher who voluntarily joined the Massachusetts Teachers' Ju^6. 
Retirement Association withdraw from membership in the Association, 
receiving a refund of his contributions with interest, without with- 



220 OPINIONS OF THE ATTORNEY-GENERAL. 

drawing from the public school service — (a) If he has not attained the 
age of sixty? (b) If he is sixty years of age or over? 

2. Can a voluntary member sixty years of age or over who has termi- 
nated his service as a teacher in the public schools withdraw from member- 
ship in the Retirement Association, receiving a refund of his contributions 
with interest, or must he, either at the time he terminates his service or 
at some time thereafter, accept a retiring allowance? 

3. Can a teacher who entered the service of the public schools of Massa- 
chusetts for the first time after July 1, 1914, thereby being required to 
join the Retirement Association, receive a refund of his contributions 
with interest upon terminating his service in the public schools after he 
has attained the age of sixty, or must he, either at the time he terminates 
his service or at some time thereafter, accept a retiring allowance? 

1. G. L., c. 32, §§ 6-19, pertain to retirement system 
for teachers. Section 7 thereof provides as follows : — 

There shall be a teachers' retirement association organized as follows: 

(1) All persons now members of the teachers' retirement association 
established on July first, nineteen hundred and fourteen, shall be members 
thereof. 

(2) All teachers hereafter entering the service of the public schools 
for the first time shall thereby become members of the association. 

(3) Any teacher who entered the service of the public schools before 
July first, nineteen hundred and fourteen, who has not become a member 
of the association, may hereafter, before attaining the age of seventy, 
upon written application to the board, become a member of the association 
by paying an amount equal to the total assessments, together with regular 
interest thereon, which he would have paid if he had joined the association 
on September thirtieth, nineteen hundred and fourteen. 

(4) Teachers in training schools maintained and controlled by the 
department of education shall be considered as public school teachers 
under sections seven to nineteen, inclusive, and such a teacher upon be- 
coming a member of the association shall thereafter paj^ assessments 
based upon his total salary including the part paid by the commonwealth; 
provided, that the total assessments shall not exceed one hundred dollars 
in any year. Such assessments shall be deducted in accordance with the 
rules prescribed by the board. This paragraph shall not apply to teachers 
regularly employed in the normal schools and therefore subject to sections 
one to five, inclusive, although they devote a part of their time to training 
school work. 

Section 10 provides, in part: — 



JAY R. BENTON, ATTORNEY-GENERAL. 221 

(1) Any member of the association shall, on written application to 
the board, be retired from service in the public schools on attaining the 
age of sixty, or at any time thereafter. . . . 

(2) Any member, on attaining the age of seventy, shall be retired from 
service in the public schools at the end of the school year in which said 
age is attained, but any member attaining that age in July, August or 
September shall then be retired. 

The provision authorizing withdrawal and reinstatement 
of members of the pubhc school service is contained in 
section 11 as follows: — 

(1) Any member withdrawing from the public school service before 
becoming eligible to retirement, except for the purpose of entering the 
service of the commonwealth, and any member who becomes subject to 
chapter two hundred and thirty-seven of the acts of nineteen hundred 
and chapter five hundred and eighty-nine of the acts of nineteen hundred 
and eight as amended shall be entitled to receive from the annuity fund 
all amounts contributed as assessments, together with regular interest 
thereon, either in one sum or, at the election of the board in four quarterly 
payments. If a member dies before receiving all his quarterly pajTnents 
the balance thereof shall be paid to his estate. 

(2) Any member thus mthdrawing, after having paid ten annual assess- 
ments, may receive, at his election and in lieu of payments under para- 
graph (1) of this section, an annuity for life, as determined by the board, 
of such amount as the sum of his assessments under section nine, para- 
graph (2), with regular intei'est thereon, shall entitle him to receive, with 
the provision that if he dies before receiving pajanents equal to the 
amount used to purchase the annuity the difference shall be paid to his 
estate. 

(3) Anj^ member after having mthdrawn from the public school service 
shall, on being re-employed in such service, be reinstated as a member in 
accordance with such rules for reinstatement as the board shall adopt. 

(4) If a member who is not receiving payments under paragraph (1) 
or (2) of this section dies before retirement, the full amount of his assess- 
ments, with regular interest thereon, shall be paid to his estate. 

Under the statute a teacher who entered the service of 
the public schools before July 1, 1914, has an option whether 
to become a member of the Teachers' Retirement Association 
or not, whereas all teachers entering the service of the public 
schools for the first time after July 1, 1914, "shall thereby 



222 OPINIONS OF THE ATTORNEY-GENERAL. 

become members of the association." Inasmuch as your 
first question relates to a teacher who "voluntarily" joined 
the Massachusetts Teachers' Retirement Association, it is 
clear that such a teacher must have entered the service of 
the pubhc schools before July 1, 1914. 

Leaving out of present consideration the case of a teacher 
who has become permanently incapable of rendering satis- 
factory service by reason of physical or mental disability 
and is accordingly retired, as provided in section 10, para- 
graph (8), it is clear that a teacher who has not attained 
the age of sixty, and consequently has not become eligible 
to retirement, may withdraw from the public school service 
under the provisions of section 11, and if he does so he is en- 
titled to receive from the annuity fund all amounts contri- 
buted as assessments, together with regular interest thereon, 
either in one sum or, at the election of the board, in four 
quarterly payments. Having so withdrawn and received 
his proper refund, I am of the opinion that such teacher has 
thereby ipso facto withdrawn entirely from the public school 
service. Any other conclusion would be inconsistent with 
the purpose and effect of the statute. 

G. L., c. 32, § 10, par. (2), provides for a mandatory retire- 
ment from service in the public schools by any member of 
the association on attaining the age of seventy. Said 
section also provides, in paragraph (1), that any member 
of the association on attaining the age of sixty ''shall, on 
written application to the board, be retired . . ." The 
context discloses that between the ages of sixty and seventy 
a teacher may apply for retirement. If a teacher, on at- 
taining the age of sixty, does not file a written application 
for retirement to the Teachers' Retirement Board, he is 
apparently entitled to continue in service, unless in the 
opinion of the employing school committee he is incapable 
of rendering satisfactory service as a teacher, in which event 
he may, with the approval of said board, be retired by such 
committee or employer. The same reasons appear to follow 
in the case of such a teacher who has attained the age of 



JAY R. BENTON, ATTORNEY-GENERAL. 223 

sixty years as in the case of one who has not attained said 
age, and I am accordingly of the opinion that such a teacher 
on retirement has withdrawn from the public school service. 
2. G. L., c. 32, § 10, par. (5), provides as follows: — 

Any member who served as a regular teacher in the public schools 
prior to July first, nineteen hundred and fourteen, and who has served 
fifteen years or more in the public schools, not less than five of which shall 
immediately precede retirement, on retiring as provided in paragraph 
(1) or (2) of this section, shall be entitled to receive a retirement allowance 
as follows: (a) such annuity and pension as may be due under paragraphs 
(3) and (4) of this section; (b) an additional pension to such an amount 
that the sum of this additional pension and the pension provided in 
paragraph (4) of this section shall equal the pension to which he would 
have been entitled under sections seven to nineteen, inclusive, if he had 
paid thirtj^ assessments based on his average yearly rate of salary for the 
five years immediately preceding his retirement, at the rate of assess- 
ment in effect at that time, and his account had been annually credited 
with interest at the rate of four per cent per annum; provided, that if 
his term of service in the commonwealth shall have been over thirty 
years, the thirty assessments, with interest as provided above, shall be 
credited mth interest at the rate of four per cent, compounded annually 
for each year of service in excess of thirty; but the assumed accumulation 
of assessments with interest under this paragraph shall not exceed the 
amount which at the age of sixty and in accordance with clause (a) of 
paragraph (3) of this section will purchase an annuity of five hundred 
dollars, and the minimum pension shall be of such an amount that the 
annual pension, plus the annual amount which would have been paid 
from the annuity fund if the member had chosen an annuity computed 
under clause (3) (a) of this section, shall be four hundred dollars. If 
a member is at any time eligible to retire and receive a pension computed 
under this paragraph, he shall receive upon retirement a pension computed 
hereunder without the necessity of five years of continuous service 
preceding retirement. 

In an opinion rendered by a former Attorney General to 
the Board of Retirement, (V Op. Atty. Gen. 192), it was 
decided that under the statutes governing the retirement 
system for employees of the Commonwealth any member 
of the Retirement Association who ceases to be an employee 
after he has acquired voluntary retirement rights is not 
entitled to a refund of his payments, the only course open 



224 OPINIONS OF THE ATTORNEY-GENERAL. 

to him upon leaving the service being to exercise his retire- 
ment rights and to accept a pension. 

The statute under consideration contains no provision 
authorizing a refund of contributions with interest under 
the facts stated in your second question, and I am accord- 
ingly of the opinion that such a voluntary member, sixty 
years of age or over, who has terminated his service as a 
teacher in the pubhc schools is not entitled to receive a 
refund of his contributions but must accept the retiring 
allowance provided by the statute. 

3. G. L., c. 32, § 10, provides that "any member" of the 
association may, on written application to the Teachers' 
Retirement Board, be retired on attaining the age of sixty. 
This accordingly applies to voluntary members, that is, 
teachers who entered the service of the public schools before 
July 1, 1914, and who have elected to become members of 
the association, as well as to teachers who entered the service 
of the public schools for the first time after July 1, 1914, 
and thereby ipso facto became members of the association 
by virtue of section 7. Therefore, the same conclusion 
reached in my answer to your second question applies to 
your third question, and I am accordingly of the opinion 
that such a teacher is not entitled to receive a refund of his 
contributions with interest, but he must accept the retiring 
allowance provided by said section 10. 



July 16. 



jay r. benton, attorney-general. 225 

Soldiers' Relief — Dependents — Re-enlistment in 
Time of Peace — Veteran — Honorable Discharge 
— Effect of Dishonorable Discharge. 

The dependents of a person who served honorably in the war with Spain or in the 
World War, if otherwise eligible to receive soldiers' relief under G. L., c. 115, 
§ 17, are not deprived of the benefits conferred thereby merely because the 
soldier later enlisted when the country was not at war and is serving in a peace- 
time enlistment. 

A veteran, otherwise eligible, is entitled to receive the benefits of State and military 
aid and soldiers' relief under the provisions of G. L., c. 115, where such veteran 
had an honorable discharge from his war service, although in an enlistment 
prior or subsequent to such war service he received a dishonorable discharge 
from the service, unless the dislionorable discharge be in itself the direct and 
proximate cause of the inability of the veteran wholly or partly to provide 
maintenance for himself and his dependents. 

You request my opinion on the following questions : — mtssfeii^r""? ' 

State Aid and 
Pensions. 

1. Are the dependents of a person who served honorably in the war ^^f^\f. 
with Spain or in the World War, and later re-enUsted when the country 
was not at war, eligible to receive soldiers' reUef when the soldier, sailor 
or marine is serving in a peace-time enlistment? 

2. Is a veteran eligible to receive the benefits of State and militaiy aid 
and soldiers' relief under the provisions of G. L., c. 115, where such veteran 
had an honorable discharge from his war service, but in an enlistment 
prior or subsequent to war service received a dishonorable discharge from 
the service? 

1. G. L., c. 115, § 17, provides, in part, as follows: — 

If a person who served in the army or navy of the United States in the war 
of the rebellion, in the army, navy or marine corps in the war with Spain 
or the Philippine insurrection between April twenty-first, eighteen hundred 
and ninety-eight, and July fourth, nineteen hundred and two, or in the 
army, navy or marine corps in the world war and received an honorable 
discharge from all enlistments therein, and who has a legal settlement in 
a town in the commonwealth, becomes from any cause, except his own 
criminal or -wilful misconduct, poor and wholly or partly unable to provide 
maintenance for himself, his wife or minor children under sixteen years, 
or for a dependent father or mother, or if such person dies leaving a widow 
or such minor children or a dependent father or mother without proper 
means of support, such support as may be necessary shall be accorded 
to him or his said dependents by the town where they or any of them have 
a legal settlement; but should such person have all the said qualifications 



226 OPINIONS OF THE ATTORNEY-GENERAL. 

except settlement, his widow, who has acquired a legal settlement in her 
own right before August twelfth, nineteen hundred and sixteen, which 
settlement has not been defeated or lost, shall also be eligible to receive 
relief under this section. Such relief shall be furnished by the aldermen 
or selectmen, or, in Boston, by the soldiers' relief commissioner, subject, 
however, to the direction of the city council of said city as to the amount 
to be paid. The beneficiary shall receive said relief at home, or at such 
other place as the alderman, selectmen or soldiers' relief commissioner 
deem proper, but he shall not be compelled to receive the same at an 
almshouse or public institution unless his physical or mental condition 
requires, or, if a minor, unless his parents or guardian so elect. 

The answer to this question depends upon what is meant 
by the phrase "and received an honorable discharge from all 
enlistments therein" as used in the statute. If the Legis- 
lature intended this expression to refer to any and all en- 
listments in the Army and Navy, whether in time of war or in 
time of peace, it would follow that both of your questions 
must be answered in the negative. But, in my opinion, the 
context does not so indicate. The phraseology used seems 
to disclose the legislative intent that the only enlistments 
here referred to are enHstments in the Army or Navy of the 
United States "in the war of the rebelUon, . . in the war 
with Spain or the Philippine insurrection ... or in the 
army, navy or marine corps in the world war." 

The soldiers' relief provided for by G. L., c. 115, § 17, 
seems to be distinct from that provided for by G. L., c. 115, 
§§6 and 10. In the latter statute the context clearly 
demonstrates that any and all enlistments are meant, while 
section 17 seems to be confined to war time enHstments and 
service. 

G. L., c. 115, § 6, provides that the recipient of State aid 
shall comply with certain conditions precedent, among which 
are the following: that he "shall have been honorably dis- 
charged from all appointments and enUstments in the 
army or navy, shall be so far disabled, as the result of his 
service in the army or navy, as to prevent him from fol- 
lowing his usual occupation." This pertains to veterans 
disabled as the result of service in the Army or Navy. G. L., 



JAY R. BENTON, ATTORNEY-GENERAL. 227 

c. 115, § 10, refers to military aid, and provides that the 
recipient shall belong to and have the qualifications of the 
four classes therein enumerated. This section likewise 
provides that the recipient "shall have been honorably 
discharged or released from active duty in such United 
States service and from all appointments and enlistments 
therein." Section 10 clearly pertains to veterans whose 
disability arose from causes independent of military or 
naval service, and who would otherwise be obliged to receive 
relief under the pauper laws. There is likewise a require- 
ment as to settlement or residence in the towns aiding. 

While the question is not free from difficulty, owing to the 
various classes of State aid, military aid and soldiers' relief, 
and the conditions precedent pertaining thereto, outlined 
in the statute, I am of the opinion that the dependents of 
a person who served honorably in the war with Spain or in 
the World War, if otherwise eligible to receive soldiers' 
relief under section 17, supra, are not deprived of the benefits 
conferred thereby merely because the soldier later enlisted 
when the country was not at war and is serving in a peace- 
time enlistment. 

In an opinion rendered the Superintendent of State Adult 
Poor, dated January 13, 1903 (II Op. Atty. Gen. 408), 
construing the above section (then R. L., c. 79, § 18), a 
former Attorney General said : — 

The purpose of the act was undoubtedly to insure the proper main- 
tenance of worthy veterans and their families, and the aid to be furnished 
to the widow or other relatives of the soldier himself was in the nature of 
a reward to him, and an assurance that those dependent upon him should 
be provided for. 

2. The conclusions reached in the answer to your first 
question likewise control the answer to your second question. 
It accordingly follows that such a soldier or his dependents 
are entitled to soldiers' relief if he becomes from any cause, 
"except his own criminal or wilful misconduct, poor and 
wholly or partly unable to provide maintenance for himself" 



228 OPINIONS OF THE ATTORNEY-GENERAL. 

or his dependents therein specified, unless the dishonorable 
discharge referred to in your question be in itself the direct 
and proximate cause of the inability of the veteran wholly 
or partly to provide maintenance for himself and his de- 
pendents, in which event it would seem that such veteran 
would not be entitled to the relief afforded by section 17 
aforesaid. 

I may also direct your attention to an opinion rendered by 
a former Attorney General (I Op. Atty. Gen. 27), in which 
it was decided that a man who enlisted in Massachusetts 
during the war of the rebellion and was honorably discharged 
is entitled to military aid under St. 1889, c. 279, §2, par. 3 
(G. L., c. 115, § 10), notwithstanding that previous to his 
enlistment in Massachusetts he had been dishonorably 
discharged from a Rhode Island regiment. 



Police Commissioner of Boston — Civil Service — 
non-competitive examinations. 

The Commissioner of Civil Service alone has the power to determine whether 
examinations for promotion in the poHce force of Boston are to be by com- 
petitive or non-competitive examinations. 

cCmmis^rdner ^ou TeQuest my opinion as to whether you are compelled 
°^i923*°°' to consider for promotion only those members of your depart- 
"tLl ■ ment whose names are certified to you from the various 

lists by the Commissioner of Civil Service, or whether you 
can, under G. L., c. 31, § 20, send to the Civil Service Com- 
missioner, for non-competitive examination, the names of 
those members of your department, with special quali- 
fications, whom you deem worthy of promotion. 

The police department of the city of Boston was subject 
to the statutes relative to civil service, under R. L., c. 19. 
Under this statute the Civil Service Commissioners were 
authorized to make rules regulating the selection of persons 
to fill appointive positions in the several cities, not in- 
consistent with law, and of general or limited application, 



JAY R. BENTON, ATTORNEY-GENERAL. 229 

among other things, to open competitive and other exam- 
inations, and to promotions, the latter, if practicable, on the 
basis of ascertained merit in the examination and seniority 
of service (R. L., c. 19, § 7), and this same power the Com- 
mission had had since the institution of the sj^stem by St. 
1884, c. 320. 

In the rules made by the Civil Service Commission after 
the passage of the Revised Laws, and continued in effect 
and now printed with Civil Service Law and Rules, 1922, as 
"Rule 28. Promotion,'^ it was and is provided: — 

1. Ill the Official Service, a promotion from one grade, as fixed by the 
rules or determined by the Commissioner, to another grade in the same 
class, shall not be valid until the candidate or candidates for promotion 
shall have been subjected to a competitive or non-competitive exami- 
nation, as the Commissioner may decide, except as otherwise required 
by statute. 

In other words, the Commissioner had the discretion to 
decide whether a promotion should be determined by com- 
petitive or non-competitive examination. 

St. 1920, c. 368, § 3, provided that appointments and 
promotions in the police forces of cities "shall hereafter be 
made only by competitive" examination. This act applied 
to all cities alike, and swept away the effect of Civil Service 
Rule 47, by which the Commissioner had discretionary 
power to say whether the examination for promotion should 
be competitive or non-competitive. The examination was 
required to be competitive in every instance, and applied 
equally to Boston as to other cities. 

The language of St. 1920, c. 368, § 3, was, however, 
modified by the passage of G. L., c. 31, § 20, so that the law 
requiring competitive examinations for promotions and 
appointments in the police forces did not apply to the city 
of Boston. 

This chapter removed the prohibition miposed on the 
Commissioner by St. 1920, c. 368, § 3, to permit non-com- 
petitive examinations to be held, as far as the city of Boston 
was concerned. 



230 



OPINIONS OF THE ATTORNEY-GENERAL. 



The matter of appointments and promotions in the pohce 
department of the city of Boston, then, is left just where 
it was prior to the act of 1920, and, under the general pro- 
visions of the civil service law, R. L., c. 19, which had not 
been modified by any further intervening legislation, the 
examinations for appointment and promotion in the Boston 
police force were again subject to the rules and regulations 
of the Civil Service Commission. Rule 28 is still in force, 
and under it the Commissioner has the power to determine 
whether examinations for promotion in the police force of 
Boston are to be by competitive or non-competitive exam- 
ination. 



Jurisdiction of the Commonwealth and of the United 
States — Application of State Penal Statutes. 

When the United States acquires lands within the limits of Massachusetts, with 
the consent of the Legislature of this Commonwealth, for the erection of a 
hospital, the Federal Constitution confers upon the United States the exclusive 
jurisdiction of the tract so acquired, and therefore penal statutes of this 
Commonwealth concerning the installation and use of compressed air tanks 
cannot constitutionally apply to contractors while engaged in work within the 
limits of a place under the exclusive jurisdiction of the Federal government. 



To the Com- 
missioner of 
Public Safety. 

1923 
August 13. 



You ask my opinion "as to the jurisdiction of the Com- 
monwealth in requiring a contractor or sub-contractor 
operating as such under a Federal government contract, 
upon land owned by the Federal government and under 
Federal supervision, to meet requirements of the laws of 
this Commonwealth as to inspection and approval, or other- 
wise, of apparatus used by said contractors or sub-con- 
tractors." 

It appears from the report submitted by an inspector in 
the Department of Public Safety, annexed to your letter, 
that a compressed air tank, or tank for the storage of com- 
pressed air, on the new stand-pipe installation at the Federal 
hospital, Leeds, Massachusetts, has been installed by certain 
contractors employed by the Federal government, under 
the general charge or direction of an officer of the United 



JAY R. BENTON, ATTORNEY-GENERAL. 231 

States Army, which has not been inspected, and which, in 
the opinion of the inspector, does not correspond with the 
standard for such tanks prescribed by the Department of 
Pubhc Safety, under the provisions of G. L., c. 146, §§34 
to 41, inclusive. It is stated in said report that such tank 
is now upon the ground acquired by the United States, 
and the tank in question is being there used by the con- 
tractors in connection with the work of building a stand- 
pipe to be used in connection with the hospital, when the 
latter is completed. In connection with this tank con- 
struction is an air tank and compressor, the compressed 
air being used for operating pneumatic hammers. 

The tank in question is actually upon the ground acquired 
by the United States, and is being used by the contractors 
employed by or for the United States in the erection of a 
hospital on such land, which was the particular purpose 
for which such land was so acquired. 

The statute in question is a penal statute, there being a 
provision in section 41 for fine and imprisonment, or both, 
for any person installing, using or causing to be installed 
or used tanks for the storage of compressed air which have 
not been inspected and certified as to their safety by State 
inspectors, and which do not conform to certain require- 
ments named in the statute. The statute also calls for the 
payment of a fee for such inspection by the owner, agent or 
user of such tank. 

Where land has been acquired by the United States within 
the jurisdiction of a State, it makes no difference whether 
it be for a military or civil purpose; and unless the acqui- 
sition be by the State's own act, with certain restrictions 
agreed to by the Federal government at the time of such 
cession by the State, the authority of the Federal govern- 
ment over such land is paramount in all acts connected with 
the purpose for which the land was taken. Even if the 
State attached concessions to the ceding of the land, they 
will be valid only if they do not interfere with the purpose 
for which the jurisdiction is ceded. Congress has exclusive 



232 OPINIONS OF THE ATTORNEY-GENERAL. 

jurisdiction over the lands, including "needful buildings." 
Newcomb v. Rockport, 183 Mass. 76. And the United States 
has the power to carry on the work for which the land was 
acquired in whatsoever way it sees fit, and the pursuance 
of such work in whatever way Congress, acting through 
duly appointed officers and agents, sees fit cannot be impeded 
by the ordinances of the State wherein the land lies, even 
if such ordinances be enacted to promote health and safety. 
The Federal government, through its agents, is the arbiter 
as to what means promote health and safety upon the par- 
ticular work in hand. So it has been held in a leading case 
that the superintendent of a soldiers' home on land acquired 
by the Federal government is solely under the jurisdiction of 
Congress and is not amenable to State laws relative to the 
serving and use of oleomargarine. Ohio v. Thomas, 173 
U. S. 276. 

It is immaterial whether the act done on the Federal 
government's land be done directly by employees of the 
government or through contractors who, for the purpose of 
carrying on the work, act to some extent as the agents of 
the Federal government, and the contractors' employees 
in like manner. These all, while carrying out the work 
undertaken by the Federal government, are equally pro- 
tected from the provisions of a penal State statute such as 
the one under discussion. 

In Tennessee v. Davis, 100 U. S. 257, the court said that 
the government can act only through its agents and servants. 
If, when thus acting, within the scope of their authority, 
they can be arrested and brought to trial in a State court 
for an alleged offence against the State authority, yet 
warranted by the Federal authority, and if the Federal 
government is powerless to help them, — the operations 
of the Federal government may at any time be arrested 
at the will of one of its members. 

And to the same effect see Ex parte Siebold, 100 U. S. 371. 

So it has been held that a Federal and not a State statute 
as to hours of work for contractors' laborers applies on 



JAY R. BENTON, ATTORNEY-GENERAL. 233 

Federal public works. United States v. San Francisco 
Bridge Co., 88 Fed. Rep. 891. See also, In re Turner, 119 
Fed. Rep. 231 ; and In re N eagle, 135 U. S. 1. 

In Johnson v. Maryland, 254 U. S. 51, it was held that 
State laws penalizing those who operate motor trucks with- 
out having obtained licenses based on examinations and 
payment of a fee cannot constitutionally apply to an em- 
ployee of the post office while engaged in driving a govern- 
ment truck over a post road, in the performance of his 
official duty. 

Again, it has been held that State regulations relative 
to penalties for non-delivery of telegrams cannot apply 
upon land acquired by the Federal government. Western 
Union Tel. Co. v. Chiles, 214 U. S. 274. 

The exclusive character of the Federal government over 
land acquired, to the exclusion of the police regulations of 
the State, has been stated with great strength in Fort 
Leavenworth R.R. Co. v, Lowe, 114 U. S. 525. 

This view of the law was taken from a very early date by 
the courts of Massachusetts. The Supreme Judicial Court 
decided that the State statute regulating the amount of 
stone which would be carried in a sailing vessel did not apply 
to a vessel at the Charlestown Navy Yard, even if used 
only on waters within the ordinary jurisdiction of the State. 
Mitchell V. Tibbetts, 17 Pick. 298. 

The general rule is, that, under the provision in the Federal 
Constitution that Congress shall have power to exercise 
exclusive legislation in all cases whatsoever, over all places 
purchased by the consent of the Legislature of the State 
in which the same shall be, for the erection of specified 
structures, when property is so purchased by the United 
States with the consent of the Legislature of the State, 
the Federal jurisdiction is exclusive of all State authority, 
and land so purchased ipso facto falls within the exclusive 
jurisdiction of the United States; and the reservation by 
the State accompanying its consent that civil and criminal 
process of the State may be served in the place purchased 



I 



234 OPINIONS OF THE ATTORNEY-GENERAL. 

is not considered as interfering in any respect with the 
supremacy of the United vStates over it, but is admitted to 
prevent such place from becoming an asylum for fugitives 
from justice. Commonwealth v. Clary, 8 Mass. 72. 

The statutory provision as to the Commonwealth's re- 
taining concurrent jusrisdiction for the execution of all 
civil and criminal process is found in G. L., c. 1, § 7, but, 
in order that the United States may possess exclusive legis- 
lative power over the tract it must have acquired the tract 
with the consent of the State. By G. L., c. 1, § 7, general 
consent was given in the matter of marine hospitals, custom 
offices, post offices, lighthouses, etc. There are many 
instances where the Commonwealth, by legislation, has 
consented to the acquisition of land of this Commonwealth. 
Recent examples are: property in the town of Rutland, St. 
1922, c. 409; Camp Devens, St. 1921, c. 456; land in South 
Boston, Gen. St. 1919, c. 270. 

As to the land in question, located at Leeds, in the city 
of Northampton, the facts furnished me through your 
department are simply to the effect that the ownership of 
the land passed to the United States government as a gift 
from the citizens of Northampton. It does not appear that 
the land has been acquired with the consent of the Legis- 
lature of this Commonwealth. 

Accordingly, for a decisive opinion on the questions raised 
by you, as to whether or not the statutory provisions relative 
to the use of the air tank are effective, it would be necessary 
to have full information as to the acquisition of the tract 
by the Federal government. 



jay r. benton, attorney-general. 235 

City Ordinances — Approval of the Attorney General. 

An ordinance of a city which has adopted Plan B as a plan of government, under 
Gen. St. 1915, c. 267, is not subject to the requirements of G. L., c. 40, § 32, 
and takes effect without the approval of the Attorney General. 

You ask my opinion whether it is necessary to submit to '^°u^^o?o(^ 
me, for my approval, ordinances of the city of Cambridge. ^'*?923'^^*' 
You state that the question has been raised in connection ^"f^^'^ 
with a complaint under an ordinance of the city of Cambridge 
relating to traffic regulations passed and approved by the 
mayor in 1917. 

I have some doubt whether it is within my province to 
give the opinion which you request, but I have concluded 
that under the circumstances it is proper to do so. 

G. L., c. 40, § 22, authorizes a city or town to make 
ordinances or by-laws for the regulation of carriages and 
vehicles used therein, except as otherwise provided in G. L., 
c. 90, § 18 (authorizing special regulations as to the speed 
and use of motor vehicles). In view of this statute no 
question can be made that the ordinance in question is 
outside the scope of proper municipal legislation. The sole 
question is whether or not it was invahd because the pro- 
visions of G. L., c. 40, § 32, were not complied with. Said 
section is as follows : — 

Before a by-law takes effect it shall be approved by the attorney 
general, and shall be pubhshed at least three times in one or more news- 
papers, if any, published in the town, otherwise in one or more newspapers 
pubUshed in the county; or instead of such publication, notice of the 
by-laws shall be given by delivering a copy thereof at every occupied 
dwelling or apartment in the town, and affidavits of the persons delivering 
the said copies, filed with the town clerk, shall be conchisive evidence 
of proper notice hereunder; provided, that any by-law in force upon May 
sixteenth, nineteen hundred and four, shall not be subject to this section. 

The requirement that a by-law, before taking effect, should 
be approved by the Attorney General was made by an amend- 
ment passed in 1904 (St. 1904, c. 344, § 1). Prior to that 



236 OPINIONS OF THE ATTORNEY-GENERAL. 

time the statutes required that by-laws should receive the 
approval of the Superior Court. (See R. L., c. 25, § 26.) 

There are certain statutory provisions under which the 
contention may be made that statutes relating to town by- 
laws should be construed to include city ordinances. 

G. L., c. 4, § 7, cl. 22, provides: — 

"Ordinance," as applied to cities, shall be synonymous with by-law. 
G. L., c. 40, § 1, is as follows: — 

Cities and towns shall be bodies corporate, and, except as otherwise 
expressly provided, shall have the powers, exercise the privileges and be 
subject to the duties and liabilities provided in the several acts establishing 
them and in the acts relating thereto. Except as otherwise expressly 
provided, cities shall have all the powers of towns and such additional 
powers as are granted to them by their charters or by general or special 
law, and all laws relative to towns shall apply to cities. 

You state that, prior to 1915, the city of Cambridge was 
governed under the old Cambridge charter, granted by St. 
1891, c. 364, section 15 of which is, in part, as follows: — 

The city council shall have power to make ordinances and to fix penal- 
ties therein, as provided herein and by general law, which shall take effect 
from the time therein limited, without the sanction or confirmation of 
any coiu't or justice thereof. All city ordinances shall be duly pub- 
lished, anfl in such newspaper or newspapers in said city as the city 
council shall direct. 

You state further that Cambridge, in 1915, adopted as 
a new charter Plan B of Gen. St. 1915, c. 267. This chapter 
contains general provisions and special provisions under 
Plan B for the passage of ordinances by a city council, 
and the approval of them by the mayor. (See pt. I, §§ 1^, 
8, and 20-23; pt. Ill, §§ 4 and 8.) Pt. I, § 23, requires 
proposed ordinances, except emergency measures, to be 
published once before passage and once afterwards. Pt. 
Ill, § 8, provides, in part, as follows: — 



JAY R. BENTON, ATTORNEY-GENERAL. 237 

Every order, ordinance, resolution and vote relative to the affairs of 
the city, adopted or passed by the city council, shall be presented to the 
mayor for his approval. If he approves it he shall sign it ; if he disapproves 
it he shall return it, \vith his objections in writing, to the city council, 
which shall enter his objections at large on its records, and again consider 
it. If the city council, notwithstanding such disapproval of the mayor, 
shall again pass such order, ordinance, resolution or vote by a two thirds 
vote of all the members of the city council, it shall then be in force, but 
such vote shall not be taken for seven days after its return to the citj'' 
council. Every such order, ordinance, resolution and vote shall be in 
force if it is not returned by the mayor within ten days after it has been 
presented to him. 

Pt. I, § 11, provides that, upon the adoption of one of the 
plans of government provided for in the act, "the provisions 
of this act, so far as apphcable to the form of government 
under the plan adopted by the city, shall supersede the 
provisions of its charter and of the general and special laws 
relating thereto and inconsistent herewith." 

G. L., c. 40, § 32, is a law relative to towns. By G. L., 
c. 40, § 1, it is made applicable to cities, except as otherwise 
expressly provided. In my opinion, the charter under 
which the city of Cambridge is governed does otherwise 
provide, and therefore section 32 is not applicable. 

I am confirmed in this opinion by the case of Commonwealth 
V. Davis, 140 Mass. 485. That was a complaint for violation 
of an ordinance of the city of Boston. The defendant 
contended that the ordinance was invalid because it had 
not been recorded in the clerk's office, as required by Pub. 
St., c. 27, § 21, providing that "before any by-law takes 
effect it shall be approved by the Superior Court, or in , 
vacation by a justice thereof, and shall with such approval 
be entered and recorded in the office of the clerk of the courts 
in the county where the town is situated, or in the county 
of Suffolk in the office of the clerk of the Superior Court 
for civil business." The court held that this provision 
applied onlj^ to the by-laws of towns, and by statutory 
enactment to cities only so far as not inconsistent with 
general or special provisions relating thereto, that the 



238 



OPINIONS OF THE ATTORNEY-GENERAL. 



provisions were inconsistent with the special provisions 
of the charter of Boston, and therefore were not appHcable. 
It is true that in that case the charter expressly provided 
that the city ordinances should take effect without the 
sanction or confirmation of any court or other authority 
whatsoever. The sections which I have referred to in 
the statute constituting the charter of the city of Cambridge 
seem to me also to make city ordinances effective when 
passed and approved as therein provided. 



To the Com- 
missioner of 
Public Health. 

1923 
August 20. 



Master Plumbers — Registration — Non-Resident — 
Building Department of the City of Boston. 

A master plumber who has a regular place of business and performs plumbing 
work by himself or by his journeymen may lawfully be registered under the 
provisions of existing statutes, even if he is not a resident of the state. 

You ask my opinion regarding a question of mixed law 
and fact contained in a letter written by the building com- 
missioner of Boston, to the secretary to the State Examiners 
of Plumbers. The question is phrased in the letter as 
follows : — 



Three brothers, one of whom is a licensed master plumber, entered into 
a partnership to perform plumbing. They i*egistered in the office of the 
building department, the registration being signed by the brother who is 
licensed as a master plumber but is not a resident of Boston, being a 
resident of Chicago. The question is: In your opinion, can the building 
department of the city of Boston recognize this registration as being in 
accordance with the requirements of G. L., c. 142, § 3, and St. 1907, 
c. 550, § 113? 

St. 1907, c. 550, above referred to, has been in large part 
amended by St. 1909, c. 536, and by later statutes. The 
provisions regarding master plumbers, contained in these 
earlier acts, are embodied in G. L., c. 142, § 3. In this 
chapter a master plumber is defined as "a plumber having 
a regular place of business and who, by himself or journey- 
men plumbers in his employ, performs plumbing work." 



JAY R. BENTON, ATTORNEY-GENERAL, 239 

In section 3 it is provided that no person shall engage in the 
business of a master plumber unless he is lawfully registered 
or has been licensed. 

It is not the province of the Attorney General to pass 
upon questions of fact, but from the statement of facts 
contained in the letter which embodies the question you 
desire answered, it does not appear but that the registration 
of the master plumber in question was properly made, 
without fraud, and in accordance with the usual mode of 
registration; and the matter which gives rise to the question 
of a possible illegality relative to this registration appears 
to be due only to the fact that at the time of such registration 
the master plumber was not a resident of Boston but a 
resident of Chicago, and is still a resident of Chicago, 
although doing business in the city of Boston. 

There is nothing in the provisions of the General Laws, 
nor in any of the numerous acts dealing with master plumbers 
previously enacted, which requires that a master plumber 
shall be a resident of the city of Boston, or even of the 
Commonwealth of Massachusetts, for the purpose of being 
registered under the provisions of this and similar statutes. 
It is required as a prerequisite of such registration that such 
master plumber shall have a regular place of business and 
perform plumbing work by himself or by his journeymen. 
There is nothing in the statutes which tends to indicate that 
a master plumber cannot carry on business in this Common- 
wealth and still be a resident of a city outside the Common- 
wealth. There would seem, therefore, no reason why the 
building department of the city of Boston should not 
recognize the registration of such a master plumber as is 
described in your letter. The further fact, that the partners 
of the master plumber are not themselves licensed master 
plumbers, is of no special importance upon this aspect of 
the matter, provided that the firm has one properly licensed 
master plumber. See Burke v. Board of Health, 219 Mass. 
219. 



240 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Com- 
missioner of 
Insurance. 

1923 
September 6. 



Insurance — Fraternal Benefit Society — Mortuary 
Funds — Interest on Certain Loans. 

A fraternal benefit society may not, under G. L., c. 176, place a portion of its 

mortuary fund in a separate fund and then disburse it for expenses incidental 

to the growth or strengthening ot the society. 
Interest due upon money borrowed by a fraternal benefit society for its death fund 

is an item of expense which, under G. L., c. 176, should be repaid from the 

expense account of such society. 

You have asked my opinion upon two questions relative 
to the mortuary funds of fraternal benefit societies. 

The first question is: "Whether or not the use of money 
for expense purposes under such circumstances (i.e., those 
set forth in the first and second paragraphs of your letter) 
is authorized by the provisions of G. L., c. 176." 

The circumstances referred to are stated in your letter to 
be as follows : — 



The Catholic Order of Foresters of Chicago, Illinois, is a foreign frater- 
nal benefit society which is subject to the provisions of the G. L., c. 176. 

During the year 1922, the society readjusted its mortuary assessment 
rates, and, as a result of making this readjustment, transferred from its 
mortuary fund to the surplus revenue fund $8,693,421.25. The money 
transferred was money received apparently from assessments levied upon 
the members for death purposes and the accretions of said fund. $160,000 
of this money was transferred from the surplus revenue fund to a fund 
called the readjustment fund, and said readjustment fund, to the amoimt 
of $120,567.70, was used for paying the expenses of the readjustment. 

G. L., c. 176, §§ 13 and 14, provide: — 

Section 13. Any society may create, maintain, invest, disburse and 
apply a death fund, any part of which may in accordance with the by- 
laws of the society be designated and set apart as an emergency, a surplus 
or other similar fund, and a disability fund. Such funds shall be held, 
invested and disbursed for the use and benefit of the society, and no 
member or beneficiary shall have or acquire individual rights therein, 
or become entitled to any part thereof, except as provided in section 
sixteen, seventeen or nineteen. The funds from which benefits shall be 
paid shall be derived and the fund from which the expenses of the society 
shall be defrayed may be derived from periodical or other payments by 
the members of the society and accretions of said funds; provided, that 



JAY R. BENTON, ATTORNEY-GENERAL. 241 

no society shall be incorporated, and no society not authorized on January 
first, nineteen hundred and twelve, to do business in the commonwealth 
shall be admitted to transact business therein, which does not provide 
for stated periodical contributions sufficient to meet the mortuary obli- 
gations contracted, when valued upon the basis of the National Fraternal 
Congress Table of Mortality as adopted by the National Fraternal Con- 
gress August twenty-third, eighteen hundred and ninety-nine, or any 
higher standard, with interest assumption not more than four per cent 
per annum, except societies providing benefits for disability or death 
from accident only. 

Section 14. Every provision of the by-laws of the society for pay- 
ment by members of such society, in whatever form made, shall distinctly 
state the purposes of the same and the proportion thereof which may be 
used for expenses, and no part of the money collected for mortuary or 
disability purposes or the net accretions of either or any of said funds 
shall be used for expenses. 

The Attorney General, of course, does not undertake to 
pass upon questions of fact, as such. The circumstances, 
as you set them forth, indicate that the benefit society 
had created a death fund, and by appropriate by-laws had 
designated and set apart a portion of such death fund in a 
surplus revenue fund, so called, and later created a re- 
adjustment fund, so called, to which $120,567.70 of the 
money previously placed in the surplus fund was removed 
and paid out to defray the expenses incidental to a readjust- 
ment of the assessment rates of the society, which was then 
made. 

Section 14, above quoted, states specifically that "no 
part of the money collected for mortuary or disability 
purposes or the net accretions of either or any of said funds 
shall be used for expenses." This rule seems plain and 
absolute. No difference is made by its terms between 
ordinary expenses of management and extraordinary ex- 
penses. The designation of part of the death fund as 
separate funds, under the provisions of section 13, does not 
disabuse the parts of the death fund so designated of their 
inherent character as moneys collected for mortuary pur- 
poses, and no such designation can free them from the 
limitations imposed by section 14. The provisions of 



242 OPINIONS OF THE ATTORNEY-GENERAL. 

section 13, while authorizing the division of the death fund 
into emergency and other funds, keep ahve and recapitulate 
the existence of the mortuary fund from which benefits are 
to be paid as a unit, and designate the fund from which 
expenses are to be paid as a separate entity. The phrase 
in section 13 concerning the different funds into which the 
mortuary fund may be divided — "such funds shall be held, 
invested and disbursed for the use and benefit of the society" 
— does not divest the funds of their character as funds 
applicable to the payment of benefits eventually, and permit 
their being used to defray expenses. Moreover, all the 
funds made out of the mortuary fund under section 13 are 
charged with the special interest therein which may accrue 
to members under the provisions of sections 16, 17 and 19. 

It is apparent from reading together all the sections of 
this chapter that the funds derived from a division of the 
mortuary fund are all charged with the same limitations 
as the original fund, and are intended by the statute to 
constitute only reserve sections, as it were, of the original 
fund. They all exist primarily to make sure the payment 
of the death benefits and the prerogatives of the members 
to which they later may become entitled under sections 
16, 17 and 19, and they cannot be diverted from their 
primary purpose to pay expenses of the society, either 
usual or unusual. The words "disbursed for the use and 
benefit of the society" (§13, line 5) do not signify a disburse- 
ment for a purpose foreign to the one for which, as part of 
the death fund, they were created. The payment of the 
expenses of the society is not the purpose for which they were 
created. A totally different mode of paying the expenses 
of the society is indicated by the statute. 

It has been specifically held that where the statutory 
rule forbids the payment of expenses from funds collected 
for or charged with the payment of death benefits, it is not 
lawful to use such funds for expenses. Chicago Mutual 
Life Ind. Assn. v. Hunt, 127 III. 257. Nor for the expense 
involved in a campaign to strengthen the society by ob- 



JAY R. BENTON, ATTORNEY-GENERAL. 243 

taining new members. WoJf v. Germania Ins. Co., 149 
Wis. 576. 

To permit a benefit society to place part of its mortuary 
fund in a separate fund under another name, and to disburse 
this portion of the mortuary fund, so set aside, for expenses 
incidental to the growth or the strengthening of the society, 
would be to open the road for the withdrawal of all the 
funds primarily intended to secure the payment of claims, 
and to permit their disbursement in an entirely different 
manner, which might be highly prejudicial to the rights of 
members and defeat the entire purpose of the statute in this 
respect. The statute makes no distinction between usual 
expenses and unusuall expenses such as those incurred in 
arranging for an adjustment of rates. 

There is nothing in the recent case of Delancy v. Grand 
Lodge A. 0. U. W., 244 Mass. 556, which modifies or affects 
the principle here involved. 

I must therefore answer your first question to the effect 
that the use of money for expense purposes, under the 
circumstances which you describe, is not authorized by 
G. L., c. 176. 

Your second question is: "Whether a fraternal benefit 
society which borrows money for its death fund has the 
right, under the statute, to pay from its death fund interest 
for the use of said money, or is said interest an expense which 
should be disbursed from the expense account." 

It is not contemplated, under the provisions of G. L., 
c. 176, that the death fund shall be depleted except by pay- 
ments to beneficiaries, for whose benefit it was established. 
Although the borrowing of money to prevent the depletion 
of the death fund in some emergency indirectly enures to 
the benefit of the immediate recipients of payments from 
the fund, the principal of the fund will suffer by paying 
for the temporary help, to the detriment of future claim 
holders. The cost of borrowing money is an expense. 
The statute is aimed to prevent the depletion of the death 
fund by expenses incurred by the society, for whatever 



244 



OPINIONS OF THE ATTORNEY-GENERAL. 



purposes and with whatever good intentions. It contem- 
plates the discharge of such indebtedness by an entirely 
separate and independent fund. Under such circumstances 
as your question discloses, payment of interest is an expense, 
and it should not be paid out of the death fund. 



Gasoline — Necessaries of Life — Construction of 
Statute — Special Commission on the Neces- 
saries of Life. 

The words "necessaries of life" mean literally things necessary to sustain life, and 
naturally connote commodities of prime importance, such as food, fuel, 
clothing and housing. 

The words "necessaries of life," as used in Mass. Const. Amend. XLVII, have a 
broad and elastic meaning, the intention being that the powers thereby given 
to the Legislature should extend to such things as may be fairly termed "neces- 
saries," from time to time, with the changing needs of the community. 

The question whether gasoline was intended by the Legislature to be included 
in the class of "commodities which are necessaries of life," as to which the 
special Commission on the Necessaries of Life was given certain powers and 
duties by St. 1921, c. 325, is a question of interpretation, involving a consider- 
ation of the language used and of the objects sought to be accomplished in 
that and other statutes where the same words have been used. 

Gasoline, while it is an important factor in the transportation of necessaries of 
life, is not itself a "necessary of life," within the meaning of St. 1921, c. 325. 

Whether the sale of gasoline is a "business which relates to or affects" necessaries 
of life, under St. 1921, c. 325, is a question of fact for the Commission to 
determine. 



To the Com- 
missioner on 
the Necessaries 
of Life. 

1923 
September 7. 



You request my opinion as to whether or not gasoline 
is a necessary of life, under the provisions of St. 1921, c. 325, 
as extended by St. 1922, c. 343, and St. 1923, c. 320, which 
creates and defines the powers and duties of your commission. 

In answering your question it is necessary to study the 
history of the passage of the present and preceding acts. 

A special Commission on the Necessaries of Life was 
established by Gen. St. 1919, c. 341. This enactment was 
preceded by Gen. St. 1917, c. 342, known as the "Common- 
wealth Defence Act of 1917," and by an amendment to the 
Constitution, in both of which provision was made for the 
exercise of control over the supply of necessaries of hfe. 



JAY R. BENTON, ATTORNEY-GENERAL. 245 

Accordingly, reference should first be made to these earlier 
provisions and acts done thereunder. 

Gen. St. 1917, c. 342, approved May 26, 1917, contained 
the following provision : — 

Section 23. Whenever tlie 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 necessaries 
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 publish any data obtained relating to the cost or supply 
of such food or other necessaries, and the means of producing or of ob- 
taining 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 of all officers, boards, commis- 
sions and departments of the commonwealth having information that 
may assist him in making the said investigation. 

The purpose of the statute was declared by section 1 to 
be "to provide for the safety, defence and welfare of the 
commonwealth and for the discharge of its duties toward the 
national defence as one of the United States." By section 
6 the Governor was authorized, whenever he believed it 
necessary or expedient, to take possession of and to fix 
minimum and maximum prices for certain kinds of property 
therein enumerated, including land, machinery, means of 
conveyance, provisions, fuel and other means of propulsion. 
These were not described as necessaries of life. By section 
12 the Governor was authorized, with the approval of the 
Council, to confer on other persons the powers to do in his 
name whatever might be necessary to carry into effect 
the powers which the act conferred upon him. 

After the passage of this statute a "Fuel Director" was 
appointed, to have supervision over the cost, supply and 
distribution of coal within the Commonwealth. (See VI 



246 OPINIONS OF THE ATTORNEY-GENERAL. 

Op. Atty. Gen. 63.) There was also appointed a "Com- 
mittee of Public Safety," which may have exercised some 
of the powers conferred by section 23. So far as I am 
advised, however, no executive action was ever taken under 
this statute to investigate or to regulate the cost, supply or 
distribution of gasoline. 

Mass. Const. Amend. XLVII was submitted to the people 
October 11, 1917, and was adopted November 6, 1917. 
This amendment 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. 

By Gen. St. 1919, c. 341, there was established for one 
year from August 1, 1919, a special commission to be known 
as the Commission on the Necessaries of Life. By section 
1 of said statute it was provided that : — 

It shall be the duty of said commission to study and investigate the 
circumstances affecting the prices of the 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 methods pursued in the conduct of 
the business of any persons, firms or corporations engaged in the pro- 
duction, transportation, or sale of the said commodities, or of any busi- 
ness which relates to or affects the same. 

This statute was amended by Gen. St. 1919, c. 365, by 
adding, after the provision quoted above, the following : — 

It shall also be the duty of said commission to study and investigate 
the circumstances affecting the charges for rent of property used for 
living quarters or for the production of necessaries of life, and in such 
investigation the commission may inquire into all matters relating to 
charges for rent. 



JAY R. BENTON, ATTORNEY-GENERAL. 247 

St. 1920, c. 610, purports to continue to January 1, 1922, 
those provisions of the Commonwealth Defence Act of 
1917 "relating to the appointment, duties, authority and 
powers of a fuel administrator." (See VI Op. Atty. Gen. 
63.) 

St. 1920, c. 628, extended the term of service of the special 
Commission on the Necessaries of Life to March 1, 1921. 
It contains, also, a further provision as follows : — ■ 

Section 5. In the public emergency which exists, and which may 
exist for an indefinite period, and in order to insure an adequate supply 
of the necessaries of life for the people of the commonwealth, including 
housing facilities, the provisions of the Commonwealth Defence Act of 
nineteen hundred and seventeen, being chapter three hundred and forty- 
two of the General Acts of nineteen hundred and seventeen, relating to 
the appointment, duties, authority and powers of a food administrator, 
are hereby made operative until March first, nineteen hundred and twenty- 
one. If the said emergency continues, the governor is hereby authorized 
to appoint, under the provisions of said chapter, one or more admin- 
istrators as he may deem the emergency requires, or to designate the 
commission on the necessaries of life to act in that capacity. 

St. 1921, c. 325, estabhshed for the term of one year from 
May 1, 1921, a special commission to be known as the Com- 
mission on the Necessaries of Life, of which one member is 
to act as chairman and fuel administrator. Section 2 
provides 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 en- 
gaged in the production, transportation, or sale of the said commodities, 
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. 



248 OPINIONS OF THE ATTORNEY-GENERAL. 

The term of service of this commission was extended for 
one year by St. 1922, c. 343, and was again extended to 
May 1, 1924, by St. 1923, c. 320. 

Reference should also be made to Res. 1922, c. 50, pro- 
viding, in part, as follows : — 

Resolved, That the special coininission on tlie necessaries of life be 
authorized and directed to inquire into the subject of the retail distri- 
bution and sale of gasoline and refined petroleum products, with special 
reference to the means and methods whereby competition in such sale and 
distribution has been substantially eliminated and conditions of monopoly 
established. . , . 

The attorney general is hereby directed to place at the disposal of the 
commission the services of an assistant attorney general for the purposes 
of the investigation herein provided for. For said purposes, the com- 
mission may exercise all the powers conferred upon it by chapter three 
hundred and twenty-five of the acts of nineteen hundred and twenty-one 
and chapter three hundred and forty-three of the acts of the current 
year, and the said products shall, for the purposes of this investigation 
be deemed "necessaries of life" within the meaning of said chapters three 
hundred and twenty-five and three hundred and forty-three. The com- 
mission shall report the results of its investigation to the general court 
not later than the second Wednesday in January, nineteen hundred and 
twenty-three, with drafts of such proposed legislation as may be necessary 
to carry its recommendations into effect. 

Acting under this provision, the Commission did make 
an investigation into the distribution and sale of gasoline 
as directed in the resolve, but it has never made any other 
investigation of that subject. The fact that the Legislature 
here expressly provided that gasoline, "for the purposes 
of this investigation," should be deemed a necessary of 
life furnishes some argument that in the 1921 statute they 
did not intend that gasoline should be included as a necessary 
of Hfe. 

Prior to the Commonwealth Defence Act of 1917, the 
words "necessaries of life" were used in the so-called "Du- 
buque Law," St. 1898, c. 549, § 1 (G. L., c. 225, § 1), providing 
for equitable process after judgment in cases where the 
judgment is founded on a claim for necessaries of life. There 



JAY R. BENTON, ATTORNEY-GENERAL. 249 

is no decision of the court construing the words "necessaries 
of Ufe" in a case arising under this statute which throws 
hght upon the present question. 

The words "necessaries of life," taken literally, must mean 
things necessary to sustain life. They naturally connote 
commodities of prime importance, such as food, fuel, 
clothing and housing. (See VI Op. Atty. Gen. 251.) The 
word "necessaries," alone, may have that restricted meaning. 
International Textbook Co. v. Connolly, 206 N. Y. 188. 

As applied to an infant, the term "necessaries" has been 
given a broader meaning, so that it includes articles of 
utility suitable to the station in life which the person 
occupies. Dams v. Caldwell, 12 Gush. 512; Raynes v. 
Bennett, 114 Mass. 424; Conant v. Burnham, 133 Mass. 
503; Hamilton v. Lane, 138 Mass. 358; Jordan Marsh Co. 
V. Cohen, 242 Mass. 245, 249. But, under the insolvency 
statute, it was held by Ghief Justice Shaw that the word 
was to be construed strictly and in reference to the purpose 
for which it was introduced. Prentice v. Richards, 8 Gray, 
226. In admiralty law, necessaries are held to be articles 
needed to enable a ship to prosecute the particular business 
in -vvhich she is engaged. The Penn, 273 Fed. 990, 991. 

Under the Lever Act (Act of August 10, 1917, c. 53, as 
amended by Act of October 22, 1919, c. 80) Congress 
provided for the exercise of control over foods, feeds, wearing 
apparel, fertilizer and certain implements, which in the act 
were called necessaries. It was held that under this act 
"necessaries" included only the articles specified in the act. 
United States v. American Woolen Co., 265 Fed. 404; cf. 
C. A. Wood cfc Co. V. Lockwood, 264 Fed. 453; Merritt v. 
United States, 264 Fed. 870. I believe that under this act 
no attempt was made to exercise control of the production, 
distribution or sale of gasohne. 

In dealing with the question of the meaning of "necessaries 
of life," as used in the instant act, it is apparent that little 
help can be derived from precedents established by judicial 
decisions, because the words must be defined in the light 



250 OPINIONS OF THE ATTORNEY-GENERAL. 

of the purpose for which the legislation was enacted, and, as 
so used, they have a different connotation from that which 
has been given to them in cases which have heretofore come 
before the courts. 

The question whether a given article is a necessary is 
said to be largely a question of fact; but the tribunal de- 
termining that question is entitled to instruction to aid it 
in such determination, and also to a ruling when, as a matter 
of law, articles of a certain kind do not come within the class 
of necessaries. Davis v. Caldwell, 12 Cush. 513; Raynes v. 
Bennett, 114 Mass. 424; Hamilton v. Lane, 138 Mass. 358; 
Jordan Marsh Co. v. Cohen, 242 Mass. 245, 249. 

Mass. Cont. Amend. XLVII has already been referred to 
and quoted in full. An examination of the records of the 
debates of the Constitutional Convention, which presented 
this amendment to the people, is not particularly illumi- 
nating in regard to gasoline. The amendment, as it was 
originally introduced in the Convention in 1917, when the 
general thoughts of the Convention were directed primarily 
to the necessities of war, was referred to as a public trading 
amendment, and was as follows : — 

The General Court may authorize the Commonwealth to take by pur- 
chase or otherwise foodstuffs, fuel, ice and other necessaries of life, and 
to sell the same to the inhabitants thereof or to any county, city, town 
or other municipal corporation therein; and may authorize municipalities 
to buy and to sell to their inhabitants such necessaries of life, and to harvest 
and manufacture ice. The General Court may authorize the establish- 
ment, maintenance and operation by the Commonwealth, cities and 
towns, of markets, docks, fuel and coal yards, elevators, warehouses, 
canneries, slaughter-houses and other like means for producing, selling 
and distributing the necessaries of life. 

The long and strenuous debate which ensued, and which 
was carried on chiefly by Mr. Clapp, of Lexington, Mr. 
Anderson, of Brookline, Mr. Washburn, of Worcester, Mr. 
Pillsbury, of Wellesley, and Mr. Lomasney, of Boston, was 
devoted primarily to a discussion of the general propriety 
of the Commonwealth's engaging in various kinds of business 



JAY R. BENTON, ATTORNEY-GENERAL. 251 

enterprises and as to what should constitute a pubhc emer- 
gency. Very little attention, if any, was paid specifically 
to the discussion of what were necessaries of life. Originally, 
it was attempted to enumerate and define necessaries by 
the use of such words as foodstuffs, fuel, ice, housing, feed, 
etc., the intention of some members being, apparently, 
from their remarks, to confine the authority given by the 
amendment to the exact articles enumerated. If this had 
been finally done the situation would have been as it was 
under the Federal act, where Congress had defined ''necessa- 
ries" by enumerating certain commodities, and the Federal 
courts held that those commodities, and those only, could 
be regarded as necessaries of life under the Federal act. 
There was, however, opposition to this limitation from the 
outset, and from the debates it appears to have been the 
consensus of opinion that the power of the Legislature 
should not be so curtailed, but that scope should be left 
for it to deal with all things which might be fairly termed 
"necessaries," from time to time, with the changing needs 
of the community, and which could not then be in the mind 
of the Convention. In the debates it was admitted by every 
one that the term "necessaries of life" was an undefined 
term, open to debate and decision at any period in the life 
of the State. In the early stages of the discussion Hon. 
George W. Anderson, now a judge of the United States 
Circuit Court of Appeals, suggested in one of his speeches 
to the Convention (Debates, C. C. vol. I, 642) — 

We have limited the first provision to foodstuffs, fuel, ice and other 
necessaries. What may be a necessary T agree is a matter sometimes 
open to debate. I know of no method by which you can avoid that 
possible difficulty in the constitutional grant of power. I think it should 
be left for the Legislature to determine what is necessary, naming it in 
the legislation enacted. 

After a very considerable amount of debate, however, 
which was mostly directed toward the proposed trading 
activities of the Commonwealth, the trading feature was 



252 OPINIONS OF THE ATTORNEY-GENERAL. 

gradually dropped out of sight, more or less by common 
consent. At length the amendment in its present form was 
adopted. 

In the whole course of the debate I cannot find anything 
which throws any light upon the intention of the Convention 
as to what should or should not be considered necessaries, 
other than the common agreement that food, fuel, clothing, 
ice and housing were undoubtedly necessaries, the admission 
that there were other probable necessaries of life, and the 
apparent intention of the Convention to leave the amend- 
ment so elastic as not to bind the judgment of the Legislature 
in future times with new economic developments before it. 

But the question on which my opinion is asked is not 
whether gasoline is a necessary of life within the broad and 
elastic meaning of those words as used in the amendment, 
but whether it was intended by the Legislature to be included 
in the class of ''commodities which are necessaries of life," 
as to which your commission was given certain powers and 
duties by St. 1921, c, 325. This question of interpretation 
of the legislative will involves a consideration of the language 
used and of the objects sought to be accomplished in that 
and other statutes where the same words have been used. 
Moore v. Stoddard, 206 Mass. 395, 399; Commonwealth v. 
Dee, 222 Mass. 184; Duggan v. Bay State St. Rij. Co., 230 
Mass. 370, 374. The meaning of the words used in a statute 
is a question of law. Boston v. Boston Elevated Ry. Co., 
213 Mass. 407, 411; Selectmen of Natick v. Boston & Albany 
R. R. Co., 210 Mass. 229, 232. 

The ordinary necessaries of life undoubtedly are food, 
fuel, clothing and housing facilities. Food, fuel and housing 
facilities are expressly mentioned by the Legislature. 

In determining whether a commodity is a necessary of 
life careful distinction must be made between necessaries 
of life and the means of producing, transporting and dis- 
tributing such necessaries. Such means, though vital 
factors in sustaining life, cannot be regarded as necessaries 
of life within the purview of the statute. Were this not 



JAY R. BENTON, ATTORNEY-GENERAL. 253 

SO, there would be, in our present condition of social life, 
very few commodities which could not be classed as necessa- 
ries of hfe. Such result was not intended by the act. It is 
a known fact, of which perhaps judicial notice may be taken, 
that transportation of food by motor trucks is a vital factor 
in keeping the markets of cities properly supplied. Gasoline 
is a necessary element in such transportation but is no more 
necessary than the motor truck. Plainly, motor trucks are 
not necessaries of life within the purview of the statute, 
nor are farming implements, though the soil cannot be tilled 
and farm produce raised without them. I am therefore 
of the opinion that gasoline, while it is an important factor 
in the transportation of necessaries of life, is not itself a 
"necessary of life" within the meaning of the statute. 

Your powers are not, however, limited to investigating the 
prices of necessaries of life. Under the statute it is your 
duty to 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 commodities, or of any business which 
relates to or affects the same." 

Under certain circumstances the sale of gasoline may be 
a "business which relates to or affects" necessaries of life 
or may be a factor in afTecting the prices of such com- 
modities. Whether or not that condition exists is a question 
of fact for you to determine. If it does, I am of the opinion 
that you may investigate the price of gasoline in so far as it 
affects necessaries of life. 



254 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Com- 
missioner of 
Insurance. 

1923 
September 13. 



Insurance — Broker's License — Fee — War Services 
— Induction from a Draft Board — Discharge. 

An applicant for an insurance broker's license under G. L., c. 175, § 166, is not 
exempt from paying the fee prescribed by said section, on the ground that he 
has "served" in the Army of the United States, if he was inducted from a draft 
board, but was discharged before being mustered into the Federal service. 

An "induction" from the draft is not the equivalent of "service" in the Army. 

To have "served" in the Army a person must not only have been inducted from 
the jurisdiction of a draft board, but must also have been through the further 
process of being "mustered into" or enrolled in the service. 

A "discharge from the draft" is not intended to be the equivalent of an honorable 
discharge for those who have actually been mustered into the service of the 
United States. 

You request my opinion as to whether a certain appHcant 
for an insurance broker's license under G. L., c. 175, § 166, 
is exempt from paying the fee prescribed by said section, 
on the ground that the apphcant in question comes within 
that clause of section 166 which provides that — 

No fee for a license issued hereunder shall be required of any soldier, 
sailor or marine resident in this commonwealth who has served in the 
army or navy of the United States in time of war or insurrection and 
received an honorable discharge therefrom or release from active duty 
therein, if he presents to the commissioner satisfactory evidence of his 
identity. 

It appears from your letter and from the copy of a 
document annexed thereto, which has been presented to 
you by said applicant as evidence of his right to exemption 
from the payment of the said fee, that the applicant was 
inducted into the mihtary service of the United States 
from the jurisdiction of the Local Board for Division 9, 
Philadelphia, on Nov. 11, 1918, and was discharged from 
the military service of the United States ''by reason of 
cancellation of induction call" on the same day. 

The document presented by the applicant is entitled 
"Discharge from Draft." It bears on its face these words: - 



Note. — This form will be used for discharge of aliens and alien enemies 
and of men rejected on account of physical unfitness, dependency, . . . 



JAY R. BENTON, ATTORNEY-GENERAL. 255 

The answer to your question turns upon what is meant 
by "served" in the army of the United States, as used in 
G. L., e. 175, § 166. I am of the opinion that the words 
used in the document entitled "Discharge from Draft," 
presented by the applicant, which state that he "was in- 
ducted into the service from the jurisdiction of the Local 
Board for Division 9, Philadelphia," are not of themselves 
sufficient to establish the fact that the applicant "served 
in the army of the United States," within the meaning of the 
statute under consideration. 

An "induction" from the draft is not the equivalent of 
"service" in the army. To have "served" in the army a 
person must not only have been inducted from the juris- 
diction of a draft board, but must also have been through 
the further process of being "mustered into" or enrolled 
in the service. After induction from the draft board the 
person so inducted is to a certain extent under martial law, 
so far that he may be treated as a deserter if he does not 
properly report thereafter, but he has yet to undergo a 
physical examination, and is subject to discharge without 
actual enrollment, for physical disability or a number of 
other causes which may be found to exist. French v. 
Sangerville, 55 Me. 69; Mahoney v. Lincolnville, 56 Me. 450; 
Reed v. Sharon, 35 Conn. 191; Bickford v. Brooksville, 55 
Me. 89. 

In construing the soldiers' bonus law the Attorney-General 
has ruled that the provisions of Gen. St. 1919, c. 283, 
granting a war bonus to men honorably discharged from 
the service of the United States in the World War, do not 
apply to drafted men who were passed by the draft board, 
sent to army camps and there discharged because physically 
disqualified or for misconduct or on similar grounds. See 
V Op. Atty. Gen. 405. In that opinion a former Attorney- 
General used the following language : — 

In my judgment, ... it cannot be said that the class of men to which 
you refer was enlisted in or had been enrolled in or had been mustered 



256 OPINIONS OF THE ATTORNEY-GENERAL. 

into the Federal service, within the meaning of this statute. These men 
were never in the army of the United States to a sufficient extent to be 
discharged from it. In my opinion, it cannot be said that they performed 
"services ... in the army ... of the United States" of the character 
intended by this statute to be recognized. Accordingly, I must advise 
you that men of the class to which you refer are not entitled to the benefits 
of the statute. 

This department has also ruled that the exemption from 
all poll taxes granted by Gen. St. 1919, c. 9, does not include 
persons summoned in the draft, who reported for duty, 
but were discharged before they were mustered into the 
Federal service. V Op. Atty. Gen. 601. 

A similar conclusion was reached by the Supreme Court 
of Rhode Island in Bannister v. Soldiers' Bonus Board, 43 
R. I. 346. 

In the "Discharge from Draft" which the present applicant 
presents to you it is evident, from the "note" which is made 
a part of the form, that it is not intended to be the equivalent 
of an honorable discharge for those who have actually been 
mustered into the service of the United States, but is a form 
used for those who have presented themselves as drafted 
men but have not actually been enrolled because of some 
disqualification. It is apparent, also, from the wording 
of the body of the document, that the applicant was dis- 
charged upon the very day of his induction, and that the 
reason for his discharge was the "cancellation of induction 
call." There is nothing in the document entitled "Discharge 
from Draft" which indicates that the applicant was mustered 
into or enrolled or served in the Army of the United States 
so as to bring him within the provisions of G. L., c. 175, 
§ 166, which exempts those who have served as soldiers in 
the Army of the United States, and have been honorably 
discharged therefrom or released from active duty therein, 
from paying a fee for a license to engage in the insurance 
business. 



jay r. benton, attorney-general. 257 

Teachers' Retirement Board — Membership — Pay- 
ment OF Back Assessments in Instalments — 
Payments in Anticipation of Membership. 

A rule of the Teachers' Retirement Board permitting a teacher who served prior 
to July 1, 1914, to join the association, paying his back assessments in instal- 
ments, is not consistent with law, and therefore is invalid. 

G. L., c. 32, § 7, par. (3), defines the only terms upon which teachers who served 
in the public schools of Massachusetts prior to July 1, 1914, are permitted 
to become members of the State Teachers' Retirement Association at any time 
before attaining the age of seventy; and said statute contains no provision 
whereby an applicant for membership may make payments of back assess- 
ments in instalments. 

No authority is granted by the statute creating the Retirement Board which 
permits the board to receive deposits from applicants in anticipation of 
membership. 

You desire my opinion upon the following questions : — m?ssk>nE°^" 

Education. 
1923 

1. Did the Teachers' Retirement Board have the right to adopt a rule September i8. 
allowing a teacher who served prior to July 1, 1914, to join the association, 

paying his back assessments in instalments? 

2. If the Retirement Board has not the right to permit teachers to join 
the Retirement Association under the provisions of the aforesaid rule, 
may the board allow teachers to make deposits in anticipation of member- 
ship, enrolling these teachers as members when they have accumulated 
in the retirement fund an amount equal to their back assessments with 
interest? 

1. G. L., c. 32, § 7, par. (3), provides as follows: — 

Any teacher who entered the service of the public schools before July 
first, nineteen hundred and fourteen, who has not become a member of 
the association, may hereafter, before attaining the age of seventy, upon 
written application to the board, become a member of the association by 
paying an amount equal to the total assessments, together with regular 
interest thereon, which he would have paid if he had joined the association 
on September thirtieth, nineteen hundred and fourteen. 

G. L., c. 32, § 8, par. (2), provides: 

The board may make by-laws and regulations consistent with law. 

At a meeting of the Retirement Board held on October 8, 
1919, the board adopted the following rule: — 



258 OPINIONS OF THE ATTORNEY-GENERAL. 

Any teacher joining the Retirement Association under the provisions 
of paragraph (3) of section 7 of the retirement law, may pay his back 
assessments with interest in equal monthly instalments for a period of 
not exceeding five years. The monthly instalments shall not be less than 
the regular monthly assessment, and they shall be deducted from the 
salary of the member by the employing school committee as directed 
by the Retirement Board. The teacher may at any time make additional 
payments reducing the balance due the annuity fund. Interest on the 
balance due after each payment is made shall be figured at the rate of 
4% per annum and shall be paid within three months from the date of 
payment of the last instalment. 

To be valid and effective this rule must, in the language 
of the statute, be "consistent with law." The statute 
[G. L., c. 32, § 7, par. (3)] defines the only terms upon which 
teachers who served in the public schools of Massachusetts 
prior to July 1, 1914, are permitted to become members of 
the State Teachers' Retirement Association at any time 
before attaining the age of seventy. Under this statute 
such membership can only be acquired by making written 
application to the board and "by paying an amount equal 
to the total assessments, together with regular interest 
thereon," which the applicant would have paid if he had 
joined the association on September 30, 1914. These 
requirements are conditions precedent to membership, and 
there is nothing in the statute which permits an applicant 
to make such payments in instalments, nor does the statute 
confer authority upon the Retirement Board to receive 
such payments from an applicant in instalments. Member- 
ship can only be acquired by paying the entire amount 
called for. Since the statute does not expressly confer the 
right to make and receive such assessments by instalments, 
it is to be presumed that no such right exists, and that it 
was the legislative intention to exclude such method of 
acquiring membership. It accordingly follows that the 
rule of the Retirement Board is not "consistent with law," 
and therefore is invalid. 

2. The same reasons given in my answer to your first 
question govern in answering your second question. No 



JAY R. BENTON, ATTORNEY-GENERAL. 259 

authority is granted by the statute creating the Retirement 
Board which permits it to receive deposits from appHcants 
in anticipation of membership. It is obvious that many 
comphcated situations would arise if the board should act 
as a depositary for such instalments. In the absence, 
therefore, of express authority conferring upon the Retire- 
ment Association this right, I am of the opinion that your 
second question must likewise be answered in the negative. 



Metropolitan District Commission — Jurisdiction — 
Private Ways adjoining Roads constructed by the 
Commission — Rights of Owners of Abutting Land 
to Egress and Ingress — Regulation. 

The Metropolitan District Commission has the power, as to roads laid out under 
G. L., c. 92, § 33, to prohibit the construction of private ways connecting 
with such roads by abutting owners. 

The Commisson has not the right to prohibit the construction of a private way 
reasonably necessarj' for access to the land of an abutting owner connecting 
with a boulevard or roadway laid out under the provisions of G. L., c. 92, § 35. 

If the owner of an abutting piece of land has been given by the Commonwealth, 
by deed, the right of free access to a "reservation" roadway or to a "boulevard," 
this right of free access cannot be limited by the Commission. 

The Commission may make reasonable rules and regulations regulating the location 
of a private way which is to eonnect abutting land with a "reservation" road- 
way or "boulevard." 

An abutting owner having a right of free access to a public way, not limited by 
the terms of a deed, is entitled to a connecting way for all purposes for which 
he may lawfully use his land. 

A regulation restricting the use of such a private way, so as to interfere with any 
purpose for which the land of the abutting owner might lawfully be used, is 
not a reasonable regulation. 

You have requested my opinion relative to the jurisdiction Jouta?, nfstHct 
of your Commission over the construction of private ways Commission. 
for the egress and ingress of owners of land adjoining roads 
constructed by your Commission. 

There are two classes of roads which may be constructed 
under the terms of our statutes by your Commission. The 
first of these consists of roads constructed under the pro- 
visions of G. L., c. 92, § 33, formerly St. 1893, c. 407, and 



1923 
September 19. 






260 " OPINIONS OF THE ATTORNEY-GENERAL. 

consists, in general, of roads laid out upon or bordering upon 
spaces taken by the Commission for exercise and recreation. 
In the absence of particular facts relative to any one of such 
roads, these roads may fairly be said not to be public ways 
{Gero V. Metropolitan Park Commission, 232 Mass. 389); 
and in the absence of an easement given by the Common- 
wealth to some adjoining landowner, the adjoining land- 
owner will not have any right of way from his land to such 
road. 

The second class of roads over which this Commission 
has jurisdiction are those constructed under G. L., c. 92, 
§ 35, formerly St. 1894, c. 288, commonly called "boule- 
vards," which are constructed for the particular purpose 
of connecting various parts of the park system with towns 
in which any of the parks are situated. As to these boule- 
vards the Commission is given the same powers which it has 
in regard to reservations, and additional powers such as 
those exercised by other public bodies over public ways. 
These boulevards constructed under section 35 are public 
ways. Whitney v. Commonwealth, 190 Mass. 531. 

It is a settled principle of our law that abutting owners 
have a right of way for reasonable needs from their lands 
to the public way adjoining. The abutting owner's right 
of access to and from the public way is as much his property 
as his right to the soil within his boundary lines. With 
regard, therefore, to owners of land abutting on the roads 
called "boulevards," made under section 35, your Com- 
mission has not the power to prevent the construction by 
the abutting landowners of ways leading from their land to 
such boulevards. If at any time easements granting such 
right of connection with the highway to the owners of abut- 
ting lands have been given by easements in deeds from the 
Commonwealth, the rights of the abutting owners are 
additionally confirmed thereby. 

Although the Commission has not the power to prohibit 
the exercise by the abutting owner of his right of access 
to and from a public way constructed under section 35, yet 



JAY R. BENTON, ATTORNEY-GENERAL. 261 

it has the power to regulate the manner in which he shall 
use his right of access. 

By G. L., c. 92, § 37, the Commission has authority to 
"make rules and regulations for the government and use 
of reservations or boulevards under its care." The right 
of the abutting owner is subject to this general provision 
for the regulation of the roads under the control of your 
Commission. Your Commission may make reasonable 
regulations concerning the location, construction and 
maintenance of such private ways as may be built by the 
abutting owners, as far as relates to their connection with 
the public ways. Conditions change from time to time, 
and what may be a reasonable regulation at one period 
may not be considered reasonable at another. There is 
wide latitude for the discretion of the Commission in this 
respect, but there is, in general, a right to make reasonable 
regulations as to the location of the private way with a view 
to the safety of the public traveling on the public way. 

To summarize: Your Commission has the power, as to 
roads laid out under G. L., c. 92, § 33, to prohibit the con- 
struction of private ways connecting with such roads by 
abutting owners. Your Commission has not the right to 
prohibit the construction of a private way reasonably 
necessary for access to the land of an abutting owner con- 
necting with a boulevard or roadway laid out under the 
provisions of G. L., c. 92, § 35. If by deed the owner of 
an abutting piece of land has been given by the Common- 
wealth the right of free access to a ''reservation" roadway 
or to a boulevard," this right of free access cannot be limited 
by the Commission ; but if the terms of the Commonwealth's 
deed do not give the right to construct more than one 
connecting way, the Commission, by its reasonable rules 
and regulations, may regulate the location of the private 
way which is to connect the abutting land. The abutting 
owner on a "boulevard" or the owner having a right of 
free access to such public way, unlimited by the terms of 
a deed, is entitled to a connecting way for all purposes for 



262 



OPINIONS OP THE ATTOENEY-GENERAL. 



which he may lawfully use his land in the situation in which 
it is, and a regulation restricting the use of such private way, 
so as to interfere with any purpose for which the land of the 
abutting owner might lawfully be used, would not be a 
reasonable regulation. 



Great Ponds — Title — Control — Public Rights — 
Access — Fishing — Prescriptive Rights — Colo- 
nial Ordinance of 1641-1647. 

Great ponds are ponds containing in their natural state more than ten acres. 

Title to great ponds, not granted to towns or appropriated to private persons prior 

to 1647, is in the Commonwealth for the benefit of the public. 
Public rights in great ponds are not limited to those mentioned in the Colonial 

Ordinance: such ponds are devoted to such public uses as the progress of 

civilization and the increasing wants of the community properly demand. 
Except during the period from 1835 to 1867, prescriptive rights in great ponds 

could not be acquired against the Commonwealth. 
The Commonwealth and the public may acquire prescriptive rights in ponds 

privately owned. 
Control of great ponds is in the Legislature. 
There is now no public right to fish in certain great ponds containing twenty acres 

or less. 
Other public rights are not affected by the statute relative to fishing. 
The public has a right to reasonable means of access to ponds containing more than 

twenty acres, for the purpose of fishing. 
Thejpublic, to gain access to great ponds for the purpose of fowling, and possibly 

for some other rights, where there are no public lands, roads or rights of way, 

may pass and repass on foot over unimproved and unenclosed lands. 



To the Com- 
missioner of 
Conservation. 

1923 
October 1. 



You have requested my opinion relative to certain public 
rights in great ponds. 

The foundation of public rights in great ponds lies in the 
Colonial Ordinance of 1641-1647 (see Ancient Charters, 
148; Body of Liberties, sec. 16; edition of the colony laws 
of 1660), which provides: — 



Sec. 2. Every inhabitant who is an householder shall have free fishing 
and fowling in any great ponds, bays, coves and rivers, so far as the sea 
ebbs and flows within the precincts of the town where they dwell, unless 
the freemen of the same town, or the general court, have otherwise ap- 
propriated them: provided, that no town shall appropriate to any par- 
ticular person or persons, any great pond, containing more than ten acres 



JAY R. BENTON, ATTORNEY-GENERAL. 263 

of land, and that no man shall come upon another's propriety without 
their leave, otherwise than as hereafter expressed. 

The which clearly to determine; Sect. 3. It is declared, that in all 
creeks, coves, and other places about and upon salt water, where the sea 
ebbs and flows, the proprietor, of the land adjoining shall have propriety 
to the low water mark, where the sea doth not ebb above a hundred rods, 
and not more wheresoever it ebbs further: provided, that such proprietor 
shall not by this liberty have power to stop or hinder the passage of boats 
or other vessels, in or through any sea, creeks, or coves, to other men's 
houses or lands. 

Sect. 4. And for great ponds lying in common, though within the 
bounds of some town, it shall be free for any man to fish and fowl there, 
and may pass and repass on foot through any man's propriety for that 
end, so they trespass not upon any man's corn or meadow. 

By this ordinance great ponds were defined as ponds 
containing more than ten acres, created by the natural 
formation of the land at a particular place, and were set 
apart and devoted to the public use. West Roxhury v. 
Stoddard, 7 Allen, 158; Commonwealth v. Tiffany, 119 Mass. 
300; Attorney General v. Herrick, 190 Mass. 307; Sprague 
V. Minon, 202 Mass. 467, 468. The fact that the area of 
a great pond has been increased by a dam or by other 
artificial means does not change its character as a great 
pond. The test is the area covered by the pond in its earlier, 
natural condition. Commonwealth v. Tiffany, 119 Mass. 300. 

Title to great ponds, both to the waters and to the soil 
underneath, which had not before the year 1647 been granted 
to a town or been appropriated to private persons, is in the 
Commonwealth for the benefit of the public, and if a pond 
had before that date been granted to a town and had not 
passed to a private person, the legal title remains in the 
town but the beneficial right is in the public. Commonwealth 
V. Roxhury, 9 Gray, 451 ; West Roxhury v. Stoddard, 7 Allen, 
158; Watuppa Reservoir Co. v. Fall River, 147 Mass. 548; 
Attorney General v. Revere Copper Co., 152 Mass. 444. 

Though fishing and fowling are the only public rights 
enumerated in the Colonial Ordinance, the mention of them 
did not exclude other rights, and the uses which the public 



264 OPINIONS OF THE ATTORNEY-GENERAL. 

might make of great ponds not appropriated to private 
persons prior to 1647 were not limited to those named in 
the ordinance or in the Body of Liberties, or to such as 
could be made of them at the time. The great ponds, like 
any other property, can be applied to such uses as from 
time to time they become capable of. They are appropri- 
ated to such public uses as the progress of civilization and 
the increasing wants of the community properly demand. 
Fishing, fowling, boating, bathing, skating or riding upon 
the ice, taking water for domestic or agricultural purposes 
or for use in the arts, and the cutting and taking of ice, 
are public rights which are free to all persons so far as they 
do not interfere with the reasonable use of the ponds by 
others or with the public right, except in cases where the 
Legislature has otherwise directed. West Roxbury v. 
Stoddard, 7 Allen, 158, 171; Hittinger v. Eames, 121 Mass. 
539; Slater v. Gunn, 170 Mass. 509, 514; Attorney General 
V. Herrick, 190 Mass. 307; Butler v. Attorney General, 195 
Mass. 79, 83. 

The public rights are common to all, and the permission 
to "householders," in the Colonial Ordinance, never has 
been construed as a prohibition to those who were not 
householders. Slater v. Gunn, 170 Mass. 509, 514. An 
unreasonable use of great ponds, not authorized by the 
Legislature, which is an interference with their reasonable 
use by the public, is a public wrong for which an indictment 
or information would lie. Potter v. Howe, 141 Mass. 357, 
360. The littoral proprietors of land upon great ponds which 
had not been appropriated to private use have no peculiar 
rights in the waters or in the land under them, except by 
grant of the Legislature or by prescription from which a 
grant is to be implied. Subject to those exceptions, there 
are no private rights of property in great ponds. Hittinger 
V. Eames, 121 Mass. 539, 546; Gage v. Steinkrauss, 131 
Mass. 222; Watuppa Reservoir Co. v. Fall River, 147 Mass. 
548, 557. 

Prescription did not run against the king except by 



JAY R. BENTON, ATTORNEY-GENERAL. 265 

statute, and this rule of common law prevailed in Massa- 
chusetts until the enactment of the Revised Statutes in 1835, 
chapter 119, section 12. Under that statute a title by 
disseizin could be acquired against the Commonwealth as 
readily as against a private person, and prescriptive rights 
in the real estate of the Commonwealth, including great 
ponds, could be acquired. But by St. 1867, c. 275, now 
G. L., c. 260, § 31, it was provided that the statute of 
limitations on real actions brought by the Commonwealth 
should not apply to "any property, right, title or interest 
of the commonwealth below high water mark or in the 
great ponds." Since the statute of 1867 the statute of 
limitations cannot be set up in bar of a real action brought 
by the Commonwealth to recover a great pond, unless 
the defendant had acquired a title by disseizin after the 
passage of the Revised Statutes in 1835, chapter 119, section 
12, and prior to the enactment of St. 1867, c. 275. Attorney 
General v. Revere Copper Co., 152 Mass. 444, 452; Sklaroff 
V. Commonwealth, 236 Mass. 87, 88. 

Both the Commonwealth and the public may, however, 
by prescription acquire rights in ponds which are privately 
owned, and rights of way to ponds, but the possession which 
operates such a result must be not only actual but open, 
adverse, exclusive and uninterrupted. Coolidge v. Learned, 
8 Pick. 504; Deerfield v. Connecticut River R.R., 144 Mass. 
325; Attorneij General v. Ahhott, 154 Mass. 323, 328; At- 
torney General v. Vineyard Grove Co., 181 Mass. 507; At- 
torney General v. Ellis, 198 Mass. 91, 98. If the use upon 
which the claim to a prescriptive right is based was with 
the permission, express or implied, of the successive owners 
of the land or pond, and was not adverse and under a claim 
of right, no rights by prescription are acquired. Slater v. 
Gunn, 170 Mass. 509, 511. If a right of way is claimed 
by dedication, it must be shown that there was an intention 
on the part of the owner to dedicate the roadway to the 
public, and an acceptance on the part of the public author- 



266 OPINIONS OF THE ATTORNEY-GENERAL. 

ities. Hay den v. Stone, 112 Mass. 346, 350; Common- 
wealth V. Coupe, 128 Mass. 63; Slater v. Gunn, supra, p. 511. 

The control of great ponds, in the pubHc interest, is in 
the Legislature, which represents the public. It may 
regulate and change these public rights, or take them away 
altogether, to serve some paramount pubhc interest. It 
may by a proper grant make them the subject of private 
property. Commonwealth v. Alger, 7 Cush. 53; Hittinger 
V. Eames, 121 Mass. 539; Gage v. Steinkrauss, 131 Mass. 
222; Sprague v. Minon, 195 Mass. 581, 583; Lynnfield v. 
Peabody, 219 Mass. 322, 329. 

In Watuppa Reservoir Co. v. Fall River, 147 Mass. 548, 
555, the court said : — 

These rights and powers, both the jus yrivatum and the jus publicum, 
to the extent to which they existed either in the king or Parhament, vested 
in the Colonial and Provincial government, and after the Revolution 
vested in the Commonwealth, including all the prerogatives and rights 
of the crown, and powers of regulation which had at any time previously 
been held and exercised by the government of England. 

And at page 557 of that case the court said : — 

The power of the Legislature to regulate the rights of fishing, and other 
public rights, is very broad. Thus it may regulate the time and manner 
of fishing in the sea within its limits, and may grant exclusive rights of 
fishing. Instances of the exercise of this power in regard to the great 
ponds are found in the various statutes leasing such ponds to individuals, 
which have been held to be valid, although they grant exclusive rights 
to individuals and exclude others from the exercise of rights to the use of 
the ponds to which they were before entitled. Commonwealth v. Vincent, 
108 Mass. 441. Commonwealth v. Tiffany, 119 Mass. 300. Cole v. 
Eastham, 133 Mass. 65. 

When the legislature grants certain rights it makes sub- 
ordinate all other public rights which are inconsistent with 
the exercise of the rights granted. Fay v. Salem cfe Danvers 
Aqueduct Co., Ill Mass. 27; Attorney General v. Revere 
Copper Co., 152 Mass. 444; Rockport v. Webster, 174 Mass. 
385; Gardner Water Co. v. Gardner, 185 Mass. 190, 194. 



JAY R. BENTON, ATTORNEY-GENERAL. 267 

It is a well established rule that, in determining the scope 
and effect of such grants from the government to the subject, 
the terms of the grant are to be taken most strongly against 
the grantee and in favor of the grantor, reversing the common 
rule as between individuals. Cleaveland v. Norton, 6 Cush. 
380, 383; Commonwealth v. Roxbury, 9 Gray, 451, 492; 
Martin v. Waddell, 16 Pet. 367, 411. 

Acting under this power, the Legislature restricted the 
public right of fishing in great ponds. G. L., c. 130, § 24 
(formerly St. 1869, c. 384, § 8), provides: — 

The fishery of a pond, the area of which is more than twenty acres, 
shall be public, except as hereinafter provided; and aU persons shall, for 
the purpose of fishing, be allowed reasonable means of access thereto. 

G. L., c. 130, § 32 (formerly St. 1869, c. 384, § 7, and R. L., 
c. 91, § 23), provides: — 

The riparian proprietors of any pond, other than a great pond, and the 
proprietors of any pond or parts of a pond created by artificial flowing 
shall have exclusive control of the fisheries therein. 

G. L., c. 130, § 33 (formerly St. 1869, c. 384, § 13, and 
R. L., c. 91, § 24), provides: — 

A pond other than a great pond, bounded in part by land belonging to 
the commonwealth or to a county, city or town shall become the exclusive 
property of the other proprietors as to the fisheries therein only upon 
payment to the state treasurer, or county, city or town treasurer of a just 
compensation for their respective rights therein, to be determined . . . 
(in a prescribed manner). 

St. 1869, c. 384, §§ 7 and 13, and R. L., c. 91, §§ 23 and 
24, apply to "any pond the area of which is not more than 
twenty acres." Though G. L., c. 130, §§ 32 and 33, seem 
to apply to any pond other than a great pond, they must 
be construed in the light of section 24 of that act and in the 
light of the previous enactments. So construed, these two 
sections apply to ponds which are not more than twenty 
acres in area. Were this not so and were it held that these 



2(58 OPINIONS OF THE ATTORNEY-GENERAL. 

provisions apply only to ponds which are not great ponds, 
thereby meaning ponds ten acres or less in area, the pro- 
visions of these two sections would be of no effect, because 
the public, even in the absence of statutes, has no rights 
in ponds which are not great ponds. The effect of G. L., 
c. 130, §§ 24, 32 and 33, is to cut off the right of the pubhc 
to fish in great ponds which are twenty acres or less in area 
where the pond is entirely surrounded by land of private 
riparian proprietors, and also in ponds twenty acres or less 
in area where the surrounding land is owned by individuals 
and the Commonwealth or a county, city or town, and 
compensation has been paid in accordance with the pro- 
visions of G. L., c. 130, § 33. See also IV Op. Atty. Gen. 
639, 641. These sections do not diminish the fishing rights 
of the public in great ponds of more than twenty acres in 
area. Neither do they curtail other public rights in great 
ponds of less than twenty acres in area, nor in any way affect 
the conception of a great pond as one containing in its 
natural state more than ten acres. See G. L., c. 91, § 35. 

G. L., c. 130, § 24, provides that, /or the purpose of fishing 
all persons shall be allowed "reasonable means of access 
to ponds more than twenty acres in area." What constitutes 
"reasonable means of access" is a question of fact. The 
right to "reasonable means" was first granted by St. 1869, 
c. 384. Prior to that act the means of access to great ponds 
for the purpose of fishing was, and the right of access at the 
present time for the purpose of exercising other public rights, 
is, such as were granted by the Colonial Ordinance, which 
provided that the public "may pass and repass on foot 
through any man's propriety ... so they trespass not 
upon any man's corn or meadow." 

In Commonwealth v. Alger, 7 Cush. 53, 70, the court said: — 

The word "propriety" is nearly, if not precise!}', equivalent to "prop- 
erty." It imports not an easement, an incorporeal right, license, or 
privilege, but a jus in re, a real or proprietary title to, and interest in, 
the soil itself, in contra-distinction to a usufruct, or an uncertain and 
precarious interest. 



JAY R. BENTON, ATTORNEY-GENERAL. 269 

lii Slater v. Gunn, 170 Mass. 509, 512, the court said: — 

The question whether the pubhc may cross private lands and if so to 
what extent, for the purpose of gaining access to them, does not seem to 
have been passed upon, though there are various dicta in our decisions 
in regard to it which tend to show that the right of access is Umited to 
cases where it can be exercised without trespassing on the lands of others. 
Coolidge v. Williatns, 4 Mass. 140, 144. West Roxbury v. Stoddard, 7 
Allen, 158, 171. Paine v. Woods, 108 Mass. 160, 173. Rowell v. Doyle, 
131 Mass. 474. 

At pages 514-516 the court said: — 

At the tune when the ordinances were adopted the territory to which 
they applied was ahnost wholly a wilderness. There naturally would be 
few public ways leading to great ponds. If there was any common land 
upon them it might be remote and inconvenient. The population was 
small and scattered. Many, if not most, of the ponds would be sur- 
rounded ^vith wild lands. No harm would be done by permitting persons 
to cross these lands for the purpose of gaining access to the ponds for 
fishing and fowling, which were the uses for which they were principally 
resorted to. In view of all these circumstances, it was provided by the 
ordinance of 1649 that any man who desired to gain access to the ponds 
for these purposes should be free to "pass and repass on foot through any 
man's propriety for that end, so they trespass not upon any man's corn 
or meadow." This, we think, was intended to limit the passing and re- 
passing to unimproved and unenclosed lands lying on the ponds, and is to 
be construed with reference to the condition of things existing when the 
ordinance was adopted. It did not create a right of way over such lands 
on the part of the public, but relieved persons crossing them in the manner 
and for the purposes named from liability as trespassers, to the end that 
the public reservation should in no case altogether fail. If it is regarded 
as establishing a rule of property, the rule is not an inflexible and un- 
varying one, but it is to be applied with a due regard to existing conditions. 
As public means of access to the ponds multiply, and the land about the 
ponds becomes more valuable, it may well be held that a rule which 
was adapted to earlier and different conditions should suffer a correspond- 
ing modification in its application. In cases where there are no convenient 
means of access, fishermen and hunters, and possibly others, may still 
pass and repass on foot through wild lands lying upon them for the pur- 
pose of gaining access to great ponds. But it hardly could have been 
intended, we thinlc, that as the uses of the ponds increased the right to 
cross and recross the unimproved and unenclosed lands lying upon them 



270 OPINIONS OF THE ATTORNEY-GENERAL. 

should increase also, and that such land should be liable to be subjected 
to a constantly increasing burden. As the ponds became more valuable 
for the public use, and were resorted to more by the public, means of 
access naturally would be provided by the public authorities, and there 
would be less instead of more necessity for crossing private lands. . . . 
the Legislature has provided . . . that all persons shall be allowed reason- 
able means of access to great ponds of more than twenty acres for the 
purpose of fishing without rendering themselves liable as trespassers. . . . 
If it had been understood that under the ordinance the public had a right 
of access to great ponds over private lands, this legislation would have 
been unnecessary, except so far as it related to the size of the ponds. 

The case of Slater v. Gunn, supra, appears to be the only 
case decided in Massachusetts which deals directly with the 
question of the means of access to great ponds. That case 
holds that "in cases where there are no convenient means 
of access, fishermen and hunters, and possibly others, may 
still pass and repass on foot through wild lands lying upon 
them, for the purpose of gaining access to great ponds." 

I am accordingly of the opinion that the public, in order 
to gain access to great ponds for the purpose of exercising 
the right of fowling, and possibly some other rights which 
reasonably may be supposed to have been contemplated 
at the time of the adoption of the Colonial Ordinance, may, 
where there are no public lands or public roads or rights of 
way acquired by eminent domain, purchase, dedication or 
prescription, pass and repass on foot over unimproved and 
unenclosed lands without rendering themselves liable as 
trespassers. With respect to fishing in ponds of more than 
twenty acres, the public is by statute afforded a reasonable 
means of access. Where there are no means of access over 
unimproved and unenclosed lands and no public lands, 
public ways or acquired rights of way, persons may in a 
reasonable manner pass over other lands of proprietors 
bordering on such ponds, for the purpose of gaining access 
thereto for fishing, without rendering themselves liable as 
trespassers. The Commonwealth or any municipality 
may, of course, by eminent domain take sufficient land to 
lay out a public way to any great pond. Except for the 



JAY R. BENTON, ATTORNEY-GENERAL. 271 

foregoing, the public has no right of access across private 
lands for the purpose of exercising public rights in great 
ponds. 

To summarize: 

(1) Great ponds are ponds created by the natural forma- 
tion of the land at a particular place, containing, in their 
natural condition, more than ten acres. 

(2) Title to great ponds which had not before the year 
1647 been granted to a town or been appropriated to private 
persons is in the Commonwealth for the benefit of the 
public. 

(3) Public rights in great ponds which are not appropri- 
ated to private persons are not limited to those mentioned 
in the Colonial Ordinance. Such ponds are devoted to such 
public uses as the progress of civilization and the increasing 
wants of the community properly demand, 

(4) The public rights are common to all persons. 

(5) Except during the period from 1835 to 1867, pre- 
scriptive rights in great ponds could not be acquired against 
the Conmionwealth. 

(6) The Commonwealth and the public may acquire 
prescriptive rights in ponds which are privately owned. 

(7) The control of great ponds is in the Legislature, which 
may regulate and change the public rights or take them away 
altogether. 

(8) There is now no public right to fish in ponds containing 
twenty acres or less, where such ponds are entirely sur- 
rounded by land of private riparian owners, or where the 
surrounding land is owned by private persons and the 
Commonwealth or a county, city or town, and compensation 
has been paid by the private owners in accordance with the 
statutory provisions. 

(9) The other public rights in great ponds, whether more 
or less than twenty acres in area, are not affected by the 
statute relative to fishing and exist in full force, except as 
they have otherwise been restricted by the Legislature. 

(10) In ponds containing more than twenty acres in area, 



272 



OPINIONS OF THE ATTORNEY-GENERAL. 



the public, in addition to such rights as it has in the pond 
itself, has a right to reasonable means of access to such 
ponds for the purpose of fishing. 

(11) In exercising the foregoing right the public may, 
where there are no means of access over unimproved and 
unenclosed land and no public lands or public roads or rights 
of way, pass in a reasonable manner over other lands of 
proprietors bordering on such ponds. 

(12) The public, in order to gain access to great ponds 
for the purpose of exercising the right of fowling, and 
possibly some other rights which reasonably may be sup- 
posed to have been contemplated at the time of the adoption 
of the Colonial Ordinance, may, where there are no public 
lands, public roads or rights of way, pass and repass on foot 
over unimproved and unenclosed lands without rendering 
themselves liable as trespassers. 



Commissioner of Public Works — Registrar of 
Motor Vehicles — Approval of Increases in 
Salaries of Motor Vehicle Investigators. 

The approval of the Commissioner of Public Works should follow the determi- 
nation of increases in salaries of investigators and examiners appointed by 
the Registrar of Motor Vehicles before such increases are finally determined. 



To the Com- 
mission on Ad- 
niiniatration ' 
and Finance. 

1923 
October 25. 



You have requested my opinion as to whether or not the 
approval of the Commissioner of Public Works is necessary 
in the matter of certain proposed increases in the salaries 
of motor vehicle investigators, which have been submitted 
to you by the Registrar of Motor Vehicles. 

G. L., c. 16, § 4, provides as follows: — 



The commissioner shall be the executive and administrative head of the 
department. He shall approve all contracts made bj^ either division, and 
may require any of the expenditures of either division to be submitted to 
him for approval. He may appoint, assign to divisions, transfer and re- 
move such officials and employees as tlie work of the department may re- 
quire, and fix their compensations. 



JAY K. BENTON, ATTORNEY-GENERAL. 273 

G. L., c. 90, § 29, reads as follows: — 

The registrar shall appoint competent persons to act as investigators 
and examiners, may remove them for cause, and may determine their 
compensation and terms of service and define their duties. . . . 

In order to arrive at a determination of your question, 
which is raised because of the apparent conflict between 
the two statutory provisions quoted above, it is necessary 
to examine the history and language of the statutes which 
created the Department of Pubhc Works in its present 
form, and which passed on to the Registrar of Motor 
Vehicles the powers and duties of the former Massachusetts 
Highway Commission. 

By adopting Mass. Const. Amend. LXVI the people of 
the State provided that — 

On or before Januaiy first, nineteen hundred twenty-one, the executive 
and administrative work of the commonwealth shall be organized in not 
more than twenty departments, in one of which every executive and ad- 
ministrative office, board and commission, except those officers serving 
directly under the governor or the council, shall be placed. Such depart- 
ments shall be under such supervision and regulation as the general court 
may from time to time prescribe by law. 

Pursuant to this mandate, the General Court passed an 
act in 1919 to organize in departments the executive and 
administrative functions of the Commonwealth, and this 
act, sometimes referred to as the "consolidation act," was 
Gen. St. 1919, c. 350. 

By section 111 the Massachusetts Highway Commission 
and the Commission on Waterways and Public Lands were 
abolished and were succeeded by the Department of Public 
Works. G. L., c. 16, § 1, the instant statute, provides: — 

There shall be a department of public works, consisting of a division of 
highways and a division of waterways and public lands. 

Section 2 provides for the appointment of a commissioner 
and four associates to supervise and control the department. 



274 OPINIONS OF THE ATTORNEY-GENERAL. 

Section 3 provides that the Governor shall appoint two of 
the associate commissioners to have charge of the Division 
of Highways, and the other two to have charge of the 
Division of Waterways and Public Lands. 

By virtue of this statute, which was orginally enacted as 
Gen. St. 1919, c. 350, pt. Ill, the commission formerly 
known as the Massachusetts Highway Commission was 
merged in the new department, and, as the act of 1919 
specifically stated, all its rights, duties, powers and ob- 
Ugations were transferred to and are to be exercised by the 
Department of Public Works. The provisions of G. L., 
c. 16, are merely a codification of the original act of 1919 
creating such Department of Public Works. In like manner 
the provisions for the creation and appointment of a Regis- 
trar of Motor Vehicles, to be appointed by the Commissioner 
of Public Works, were first enacted in the same chapter. 
Gen. St. 1919, c. 350, and are there in the identical words of 
G. L., c. 16, § 4, except that the powers and duties of the 
Registrar are described and fixed in these words in section 
115 of Gen. St. 1919, c. 350: — 

The registrar of motor vehicles shall have, exercise and perform all 
the rights, powers, duties and obligations of the Massachusetts highway 
commission relative to motor vehicles and to the operation thereof, as 
defined by chapter five hundred and thirty-four of the acts of nineteen 
hundred and nine, and acts in amendment thereof and addition thereto. 
Any person aggrieved by a regulation, ruUng or decision of said registrar 
may, within ten days thereafter, appeal ... to the commissioners of 
the division of highways . . . 

Provisions similar to those in the earlier act, for appeal 
from rulings and regulations made by the Registrar to the 
commissioners of the Division of Highways, appear in 
various sections of G. L., c. 90. 

This same act which abolished the former jurisdiction 
of the Massachusetts Highway Commission over motor 
vehicles created the office of Registrar, created the Depart- 
ment of Public Works, gave the Commissioner of Public 
Works the power to fix the compensation of officials and 



JAY E. BENTON, ATTORNEY-GENERAL. 275 

employees of the division, as well as to remove and to 
transfer from one division to another any of such employees 
(Gen. St. 1919, c. 350, § 114), and this in addition to the 
power given him to appoint and remove the Registrar. 
The Registrar, though given broad powers under the act 
of 1919, was subject to a review of his decisions by the new 
Division of Highways, as he still is under G. L., c. 90. His 
powers and duties are defined to be those of the former 
Massachusetts Highway Commission. Since the enactment 
of the statute of 1919 creating the Department of Public 
Works, the Registrar has been in practice treated as a sub- 
division of the Division of Highways. 

If we seek to construe the law concerning the jurisdiction 
of the Commissioner of Pubhc Works over the salaries of 
the employees of the Registrar, in view of the fact that the 
provisions relating thereto were originally all part of the 
same act, and not, as now, codified into separate chapters, 
we may more easily arrive at a determination of the legis- 
lative intention in framing the clauses under discussion. 

The original act of 1919, which created both the Com- 
missioner of Public Works and the Registrar, gave to the 
Registrar the powers of the former Highway Commission 
under St. 1909, c. 534, as amended by subsequent legislation. 
It is true that St. 1909, c. 534, gave to the Highway Com- 
missioners the power to appoint and remove investigators 
and examiners and to fix their compensation in essentially 
the same language as is used in G. L., c. 90, § 29, and their 
fixation of compensation was not then reviewable by any 
other official, nor had it become so by later enactments. 
However, the very act which transferred their powers to 
the Registrar embodied within itself the creation of the new 
Department of Public Works, two new divisions and the 
new office of Registrar, all manifestly intended to be under 
the Commissioner's supervision as regards the expenditures 
of their offices and the compensation of their employees. 
It is obvious from an inspection of Gen. St. 1919, c. 350, 
pt. Ill, division 18, that the power to supervise salaries 



276 OPINIONS OF THE ATTORNEY-GENERAL. 

was given to the Commissioner as to both the divisions 
of his department, and that the office of Registrar, also 
created by division 18, was not intended by the Legislature 
to be an office wholly separate and distinct from the newly 
created Department of Public Works, but was intended 
to be limited by the other provisions of division 18, and to 
be subject, in the exercise of powers relative to employees' 
salaries, to the general provision of the division of the 
statute, in section 115, giving to the Commissioner the 
general oversight of and right to approve all matters per- 
taining to the compensation of the employees of the various 
officials mentioned in division 18 of the statute. 

While it is true that the former Massachusetts Highway 
Commission had the power to fix the compensation of their 
employees, nevertheless, in view of the fact that the act 
of 1919, which conferred their power upon the Registrar, 
created a supervisory official who had authority to oversee 
matters of compensation relative to employees, it seems 
that it is necessary to construe the act of 1919 as by its 
very terms withholding from the Registrar this particular 
power which the Highway Commission previously had, but 
which, under the intention of the new act, neither their 
successor, the Highway Division, nor the Waterways 
Division was to possess any longer. The fact that in process 
of codifying the laws the subject-matter of the act of 1919 
was separated into two distinct chapters is responsible 
for the apparent conflict; but when read together, as they 
were originallj^ written, the meaning and intent of the 
Legislature are plain. 

To construe the statute as establishing one office, among 
all those created by the statute, which alone should be 
above the authority of the executive head with respect to 
salaries, would seem to subvert the manifest intention 
of the Legislature in passing this act, which was to centralize 
in the hands of one responsible official, the Commissioner, 
the ultimate authority over all the other officials and em- 
ployees mentioned in this division of the statute, for the 



JAY R. BENTON, ATTORNEY-GENERAL. 277 

purpose of bringing the whole group into harmony as respects 
salaries and duties, correlative to each other. The power 
of the Commissioner indicated in the act of 1919 in this 
respect is generally to be exercised by a power of change 
or veto over the acts of the subordinate executives, leaving 
them, as in the case of the Registrar, power of initial move- 
ment in the matter. 

A study of the history of the enactment of the so-called 
"consohdation act" and its codification in the General Laws 
clearly indicates that it was the conception of both the 
joint committee on administration and commissions, which 
prepared the reorganization act, and the General Court, 
which enacted it, to secure centralization of responsibility. 
"What was required was a scheme for the establishment 
of better order in the administration of the affairs of 
the executive branch of the State government, leaving the 
correction of mistaken details to the future. Upon the 
Governor rests the duty to select the proper personnel, 
and upon the officials he appoints the duty to see that the 
machinery which the Legislature has provided is intelligently 
operated." A very thorough statement of the history of 
the consolidation act is to be found in the August, 1919, 
number of the Massachusetts Law Quarterly, at page 366, 
prepared by Fitz-Henry Smith, Jr., Esq., House chairman 
of the joint committee on administration and commissions, 
which prepared the reorganization bill. 

In view of the foregoing, in my judgment, the approval 
of the Conmiissioner of Public Works should follow the 
determination of compensation of investigators and ex- 
aminers appointed by the Registrar of Motor Vehicles. 

In connection with this opinion I might add that it was 
clear to the Legislature that matters might arise, after the 
statute was placed upon the books, where certain provisions 
were in apparent conflict, and therefore it was provided by 
Gen. St. 1919, c. 350, § 10, that — 

In all cases where a question arises between departments or officers or 
boards thereof as to their respective jurisdiction or powers, or where 



278 



OPINIONS OF THE ATTORNEY-GENERAL. 



departments, or officers or boards thereof, issue conflicting orders or make 
conflicting rules and regulations, the governor and council shall, on appeal 
of any such department or any person affected thereby, have jurisdiction 
to determine the question, and to order any such order, rule or regulation 
amended or annulled; provided, that nothing herein contained shall be 
construed to deprive any person of the right to pursue any other lawful 
remedy. The time within which such appeal may be taken shall be fixed 
by the governor and council. 

In the codification this provision was changed to read as 
follows (G. L., c. 30, § 5) : — 

In all cases where a question arises between executive or administrative 
departments, or officers or boards thereof, as to their respective juris- 
dictions or powers, or where such departments, or officers or boards 
thereof, issue conflicting orders or make conflicting rules and regulations, 
the governor and council may, on appeal by any such department or 
by any person affected thereby, determine the question, and order any 
such order, rule or regulation amended or annulled; provided, that this 
section shall not deprive any person of the right to pursue any other lawful 
remedy. The time within which such appeal may be taken shall be fixed 
by the governor and council. 



Metropolitan District Commission — Land bordering 
ON Mystic Lakes — Easement. 

By a continuous uninterrupted user an easement by prescription has been acquired 
in land bordering on the Mystic Lakes for the maintenance of a structure 
used as a boat club, and a right of way thereto. 



To the Metro- 
politan District 
Commission. 

1923 
October 27. 



You have requested my opinion upon certain matters 
relative to land under the control of the Metropolitan 
District Commission bordering on the Mystic Lakes in 
Medford. 

It appears from your letter that the city of Charlestown, 
by virtue of St. 1860, c. 217, entitled "An Act for supplying 
the city of Charlestown with pure water," in consideration 
of the payment of a certain sum of money, acquired from 
the owners of land bordering the upper Mystic Lake, and 
lying between the two lakes, an easement of flowing the land 



JAY R. BENTON, ATTORNEY-GENERAL. 279 

of the owners by a certain dam, and an easement providing 
for a right of way over the land and the occupancy of the 
land, limited to a right of way and occupancy for the specific 
purposes of the said act, and a further right of way over 
another strip of the owner's land near by, limited so as to 
be "only for the purpose of enabling said city to make 
necessary repaiis upon the said conduit (then upon said 
land or to be placed there), and to such acts as may be 
necessary for the preservation, examination and use and 
reconstruction thereof (that is, of the conduit), and for no 
other purposes whatever," — the words in parentheses 
not being in the indenture. The owners expressly retain 
in the indenture their own rights in the land and the lake 
for all purposes not in conflict with the Commonwealth's 
use, and their rights to use the pond for boating and other 
purposes. It was also provided in the indenture that if 
the grantee did not maintain the aqueduct for the purposes 
of the act, or if the aqueduct and the water works were 
discontinued or not maintained, then, that easement should 
cease and determine. The rights acquired under this in- 
denture have vested in the MetropoUtan District Com- 
mission by the operation of various subsequent statutes, and 
takings of these easements thereunder, and have been so 
vested since 1895. The mere fact that water from the lakes 
has not actually been used for some years for water supply 
purposes, and is not at the present time in a condition to 
be used, is not of itself such a discontinuance of the main- 
tenance of the aqueduct and water works as would work an 
abandonment thereof so as to determine the easements. 
The actual easements which vested in the Commission 
in 1895 were limited in their scope to the purposes of the act 
of 1860, and the repair and general maintenance of the 
conduit referred to in the indenture. The purposes for 
which land might be taken and held were described by the 
act. The city of Boston was authorized to "take and hold 
by purchase, or otherwise, lands and real estate necessary 
for the erecting, laying and maintaining, and may erect. 



280 OPINIONS OF THE ATTORNEY-GENERAL. 

lay and maintain, such aqueducts, pipes, reservoirs, em- 
bankments, water-ways, drains or other structures as may 
be necessary or convenient to convey said water into, and 
for the use of, the said city of Charlestown." And the 
general purpose of the act was described as being "the 
supplying of the city of Charlestown with pure water." 
In other words, the easements acquired under the indenture 
could be used only for purposes connected with supplying 
water for Charlestown.' 

The grantee of the easements, and its successors, did not 
acquire any right, as against the owner of the fee, to erect 
or maintain structures for purposes unconnected with 
supplying water to Charlestown. It did not acquire bj^ the 
indenture the right to maintain or to permit others to main- 
tain a structure for use as a boat club on the land or in the 
lake, or to occupy the land or lake for boating, nor did it 
acquire by the indenture any right of way over the lands 
for itself or for others, to pass and repass to a structure 
maintained as a boat club, or for any other purpose uncon- 
nected with the use of the lake as a source of water supply. 
It did not acquire under the indenture any right to park 
automobiles, or to .permit others so to do, on the lands, 
except in necessary connection with the maintenance of 
the water supply. 

It follows, then, that in 1900 the Commission did not 
have such an easement under the indenture that they could 
use any building on the land for boating or permit others 
to use such a building for such a purpose. I assume, from 
the facts stated in your letter, that the use made of the 
structure, of the land and of the pond and of the right of 
way, for the purposes of the boat club, was without the 
permission of the owner of the fee at all times subsequent 
to 1900. If the fact be otherwise, and these uses were 
permissive, and not, as your letter indicates, adverse to 
the owner of the servient tenement, the Commission and 
the Commonwealth are in no better position than they were 
in 1900. Assuming the uses to have been adverse, then the 



JAY R. BENTON, ATTORNEY-GENERAL. 281 

owners of the fee could have prevented, by a resort to equity, 
the exercise by the Ucensees of the permission given to them 
by the Commission in its letter of 1900, and could have 
prevented the remodeling and use of the building by the 
Commission's licensees under the permission given in the 
letters of the Commission of May 18, 1900, May 4, 1904, 
and March 7, 1907, and might have prohibited the passage 
of automobiles and their parking upon the lands, as was 
subsequently the usage after the letters of the Commission 
of May 4, 1904, and March 7, 1907, and the vote of the 
Commission of September 29, 1920. All the acts which 
were then done relative to the boat club, and the use of the 
land by automobiles going to and from the boat club, were 
plainly in excess of any easement which had been acquired 
over the servient tenement, were adverse to the owner of 
the fee, and were not within the rights vested in the Com- 
mission by the indenture or the subsequent taking. The 
Commission could not itself so use the land, nor could it 
give or transfer to any licensee any right so to use the land. 

The use made of the land for the purpose of maintaining 
a boat club, beginning with the year 1900, was open and 
continuous. Such use as was made at that time by the 
permission of the Commission of a right of way over the 
land for the purposes of the boat club was also open, and 
has been continuous and, in the same manner, adverse to 
the owner of the fee. I am of the opinion that, since these 
uses have continued uninterrupted by the owner of the fee 
during the period since 1900, the Commonwealth or the 
boat club, or both, have acquired an easement by pre- 
scription, as against the owner of the fee, to use the land and 
the pond and to maintain a structure for the purposes of 
a boating club, and to pass and repass over the land for 
purposes of access to the boat club, to the general extent 
which such passing was practiced in 1900. Attorney General 
V. Ellis, 198 Mass. 91. If any use of the land or passage 
over the land has been made within the past twenty years 
which has unposed a materially different or heavier burden 



282 OPINIONS OF THE ATTORNEY-GENERAL. 

upon the servient tenement than did the usages in practice 
twenty years ago, such materially different or heavier 
usage has not yet given rise to any prescriptive right, and 
the Commonwealth and its licensees are continuing such 
usage adversely to the owner of the fee, and, under the terms 
of the indenture, the owner of the fee may prohibit them. 

Whether or not the Commonwealth has, as against the 
owners of the fee, acquired easements in the land, the 
Commission has authority, as a commission, to permit the 
use of the lands for any lawful purpose not necessarily in- 
consistent with the maintenance of the aqueduct, the water 
works and the existence of the lakes as a possible water 
supply, subject to its determination by the owner of the 
fee if such use exceed any easement in such lands which 
the Commonwealth has acquired by actual grant or by 
prescription. 

The fact that a greater use of the servient tenement is 
made than is authorized by the easement, unless necessarily 
destructive of the character of the easement itself, does not 
determine or lessen the easement which was originally 
actually granted. The excessive use may be prohibited 
by injunction by the owner of the fee, but the excessive 
use will not destroy the easement as originally granted. 
Mendell v. Delano, 7 Met. 176; Cowell v. Thayer, 5 Met. 
253; Roby v. New York Central R.R., 142 N. Y. 176. The 
adverse user described in your letter does not appear to have 
been of a character which would affect the existence of the 
easement which was originally granted by the indenture. 

The propositions above set forth answer the first two 
questions in your letter to this department. 

Your third question is: 'Tf the Commission has authority 
to continue the present use by the boat club, can it accept 
such a bond as is suggested?" (That is, a bond from the 
boat club, which occupies a portion of the land under a 
license so to occupy from the Commission, to indemnify 
the Commission or the Commonwealth for any liability 
on the part of the Commission or the Commonwealth to 



JAY E. BENTON, ATTORNEY-GENERAL. 283 

persons passing or repassing over the lands in question for 
the purpose of using the boat club.) 

You do not state in your letter whether any road has been 
laid out on the existing embankment or elsewhere by the 
Commission, giving access to the boat club or to the land. 
It is impossible for this department, therefore, to determine 
what, if any, liability would rest upon the Commission or 
the Commonwealth relative to persons driving along the 
embankment to which you refer in your letter. If no way 
has been laid out by the Commission, it is highly improbable 
that there would be any liability to persons entering upon 
the land to go to the boat club. If the Commission has laid 
out a highway, liabiHty would be governed by the provisions 
of G. L., c. 81, § 18, and there would be no liability on the 
part of the Commission or the Commonwealth for injury 
due to the absence of a railing. The taking of a bond of 
indemnity from the Commission's licensee could not, in any 
event, be an admission of any duty or liability upon the 
part of the Commonwealth; and, as a protection from 
expense of litigation, as well as more serious obUgations, if 
any there be, the acceptance of an indemnity bond from 
the boat club would seem to be within the authority of the 
Commission. 

If, however, in the opinion of the Commission the way 
in question, whatever its character may be, is not safe 
for the use of automobiles without a railing, the acceptance 
of a bond, without insistence upon the erection of such a 
railing by the Commission's licensee, although relieving 
against possible liability on the part of the Commission or 
the Commonwealth, does not tend to ensure the safety 
of the public traveling over such way. 



284 opinions of the attorney-general. 

Certified Milk — Foreign Supervision — Medical 
Milk Commissions. 

Certification of milk by a foreign corporation or board is not a sufficient com- 
pliance with the requirements of G. L., c. 180, §§ 20-25, as amended. 

m?ssk)nE°S" You request my opinion as to whether or not a certain 

^"'^1923^'''"' proposed plan for the certification of milk complies with the 
November 1. provisloiis of G. L., c. 180, §§ 20-25, as amended. 

You state that it has been suggested to you that a certain 
citizen of New Hampshire be permitted to sell "certified 
milk" in Boston. It is said that "the milk is supervised 
by the Cheshire County Medical Commission" (not a 
Massachusetts corporation), and it is apparently proposed 
that this milk should be sold in Boston under a certification 
made by this foreign commission and "approved by the 
Boston Medical Milk Commission." Whether it is in- 
tended that the Boston Medical Milk Commission shall 
also certify the milk is not plain from your communication, 
but unless they did so certify it themselves its sale as 
"certified milk" would be unlawful in any event. 

G. L., c. 180, §§20 and 21, provide for the creation of 
corporations composed of physicians and members of boards 
of health, to be known as medical milk commissions, and 
the purpose of such bodies is said by the statute to be: 
"for the purpose of supervising the production of milk." 
By section 23, as amended by St. 1923, c. 252, such corpo- 
rations may enter into written agreements with dairymen 
for the production of milk under their supervision, of at 
least a minimum prescribed standard, under conditions 
prescribed by the corporations. The conditions prescribed 
are to be approved by the Department of Public Health. 
By section 24 the working methods of the corporations and 
the dairies with which they make contracts are to be subject 
to investigation by the department. The corporations 
may certify milk produced under their supervision, which 
may be sold as "certified milk," so called. 

It is not the intent of the statute that milk certified by 



JAY R. BENTON, ATTORNEY-GENERAL. 285 

a foreign corporation, not subject to the provisions of 
chapter 180, should be sold in this State as "certified milk," 
norisit the intent of the statute that the corporations formed 
under its provisions should act merely as registrants of 
the acts of a foreign commission. The intent of the statute 
is that milk of the quality known as "certified" should be 
produced under the supervision of these Massachusetts 
corporations, called medical milk commissions, through 
contracts made by them with dairymen, which prescribe 
the particular conditions under which the milk should be 
produced, these conditions to have the approval of the 
Department of Public Health of this State. 

To permit these medical milk commissions to forego the 
making of contracts with dairymen for the production of 
milk under conditions approved by the State Department 
of Health, and in lieu thereof to accept a certificate of the 
quality of the milk made by officials of another State, would 
be entirely contrary to the purpose and intent of the statute. 
The commissions cannot substitute for their own supervision 
and regulation of the dairies which are the source of their 
milk supply the supervision of a commission of another 
State. 

I am of the opinion that the proposed plan for certification 
of milk does not conform to the statutory requirements. 



Prisoners — State Prison — Successive Sentences. 

A second sentence of a person serving a sentence at the State prison begins to run 
. upon the expiration of the minimum term of the first sentence. 

The first sentence of sucli prisoner is not terminated by the taking effect of the 
second sentence. 

After the second sentence of such prisoner takes effect, both sentences run con- 
currently. 

You state that a man was sentenced to the State prison m^gsionfr^of" 
on December 16, 1920, to serve not more than five and not "^""fg'ir 
less than three years; that he escaped from the prison 
on May 11, 1921, and was returned thereto on September 



November 10. 



286 OPINIONS OF THE ATTORNEY-GENERAL. 

11, 1921; that for the crime of escape he was sentenced to 
the State prison for not more than one and one-half years 
and not less than one year, said sentence to take effect from 
and after the expiration of his first sentence. You request 
my opinion upon the following questions : — 

1. Assuming that no parole is granted to the prisoner, and assuming 
that he has not been punished or broken the rules of the prison, upon 
what day would he be entitled to release upon these two sentences? 

2. Assuming no parole is granted him on the first sentence, upon what 
day will the second sentence begin to run? In other words, is the 4- 
months' period which he spent outside the prison automatically deducted 
from his term? 

G. L., c. 279, § 24, provides, in part: — 

If a convict sentenced to the state prison receives an additional 
sentence thereto, it shall take effect upon the expiration of the minimum 
term of the preceding sentence. 

This second sentence, accordingly, will begin to run upon 
the expiration of the minimum term of the first sentence. 

The convict was at large for four months, and this period 
should manifestly not be considered as time served under 
his sentence. The minimum term of his first sentence will 
therefore expire three years and four months after December 
16, 1920, and his second term will then begin to run. 

The first sentence is not, however, in my opinion, termi- 
nated by the taking effect of the second. The convict 
is under sentence during the whole of the maximum term 
of the first sentence. A sentence for a minimum and 
maximum term is, in effect, a sentence for the maximum 
fixed by the court. Commonwealth v. Brown, 167 Mass. 
144, 146; Oliver v. Oliver, 169 Mass. 592, 594; Ex parte 
Spencer, 228 U. S. 652, 661; Adams v. Russell, 229 U. S. 
353, 368. It necessarily follows that after the second 
sentence takes effect both sentences run concurrently. 

The maximum period of time during which the prisoner 
may be confined under both sentences is five years, since 



JAY R. BENTON, ATTORNEY-GENERAL. 287 

his second sentence will have completely expired before the 
maximum of his first sentence expires. Assuming that no 
parole is granted to him, and assuming that he has not been 
punished or broken the rules of the prison, he is entitled, 
under the provisions of G. L., c. 127, § 133, to a permit to 
be at liberty upon such terms and conditions as the Board 
of Parole may prescribe when he has served four years. 
If the record shows that he has violated the rules of the 
prison, he is not entitled to be released until he has served 
five years. 



November 20. 



Construction of St. 1922, c. 462 — Directory or 

Mandatory. 

A statute directing a public official to do a certain act within a certain time is 
generally construed as being directory rather than mandatory, and not as 
limiting his authority to do the act after the expiration of the time. 

St. 1922, c. 462, directing the Division of Waterways and Public Lands to determine 
the location where it is advisable to build a public terminal for the Cape Cod 
Canal, and authorizing the Division thereafter to build such terminal, does 
not require the Division to determine the location within definite limits of 
time. 

You ask me to advise you with reference to St. 1922, c. m?ssionS°<^' 
462, if, in my opinion, the Division of Waterways and Public Public works. 
Lands is required, within definite limits of time, to determine 
the location along the line of the Cape Cod Canal or else- 
where in the town of Bourne or Sandwich, where, in its 
opinion, it is advisable to build a public terminal. 

St. 1922, c. 462, is, in part, as follows: — 

Section 1. The division of waterways and public lands of the depart- 
ment of public works, hereinafter called the division, is hei'eby authorized 
and directed to determine, after public hearings to be held in one or more 
places in each of the counties of Barnstable and Plymouth, and after such 
examination as it may deem necessary, the location along the line of the 
Cape Cod canal or elsewhere in the town of Bourne or Sandwich, where, 
in its opinion, it is advisable to build a public terminal which shall include 
a pier and approaches, and such equipment, appliances and rail con- 
nections as it deems necessary, and to do such other work as may be 
necessary and advisable to carry out the purposes of this act. 



288 OPINIONS OF THE ATTORNEY-GENERAL. 

SfiCTIon 2. When the location of the proposed terminal has been so 
determined, the division may purchase, or take by eminent domain under 
chapter seventy-nine of the General Laws, such lands and flats and rights 
and interests therein as may be necessary, and may build such terminal; 
provided however, that no expense shall be incurred until contributions 
towards the cost of said terminal amounting to seventy-five thousand 
dollars have been made by the counties of Barnstable and Plymouth and 
paid into the state treasury. . . , The division may expend the total sum 
so contributed, together with a further sum, not exceeding seventy-five 
thousand dollars, out of the annual appropriation or appropriations for 
the improvement of rivers and harbors, when such siun and the l^otal 
sum contributed as aforesaid are made available for the purposes of this 
act. 



In effect the statute authorizes and directs the Division 
to determine, after pubUc hearings and examination, the 
location along the hne of the Gape Cod Canal or elsewhere 
in the town of Bourne or Sandwich, where, in its opinion, 
it is advisable to build a public terminal; and further pro- 
vides that when the location of the proposed terminal has 
been so determined the Division may purchase or take by 
eminent domain such lands and interests therein as may 
be necessary, and may build such terminal; but shall incur 
no expense until contributions towards its cost have been 
made by the counties of Barnstable and Plymouth. No 
definite time is stated in the act when the determination 
shall be made. 

A statute authorizing and directing a public official to do 
a certain act within a certain time is generally construed 
as being directory rather than mandatory, and not as 
limiting his authority to do the act after the expiration 
of the time. Pond v. Negus, 3 Mass. 230, 232; Clemens 
Electrical Mfg. Co. v. Walton, 168 Mass. 304, 307, 308; 
Rutter V. White, 204 Mass. 59, 61, 62. The cases also some- 
times go further in interpreting a positive direction, in the 
light of the statute as a whole, as importing only power or 
authority. The word "shall," used in that connection, 
lias been construed to mean ''may." Suburban Light & 



JAY R. BENTON, ATTORNEY-GENERAL. 

Power Co. v. Boston, 153 Mass. 200, 202; Rea v. Aldermen 
of Everett, 217 Mass. 427; Ashley v. Three Justices of Superior 
Court, 228 Mass. 63, 69, 70. 

The act doe^ not direct the Division to proceed with the 
construction of the terminal at any time. You will note 
that section 1 provides that the Division is to determine 
the location, after public hearings, and "after such exami- 
nation as it may deem necessary." This language clearly 
indicates that it is within the Division's discretion as to how 
extensive an examination shall be made. You are not 
limited as to time. Further, if your Division should de- 
termine that for a proper examination certain expenses 
should be incurred, you are precluded from proceeding until 
contributions have been made by the counties of Barnstable 
and Plymouth and paid into the State treasury. This is a 
condition precedent to your incurring expense. This is, 
of course, collateral to your main question, which has been 
answered above to the effect that your Division is not re- 
quired to determine the location within definite limits of 
time. 



289 



Department of Public Health — Aberjona River — 
Regulations — Sewage. 

The word "sewage" as used in St. 1911, c. 291, includes filth from manufactories 

as well as from dwellings. 
The Department of Public Health may prevent the discharge of sewage into the 

Aberjona River and its tributaries as well as the creation of a nuisance therein. 

You have asked my opinion relative to several matters TotheCom- 

'' ■*■ missioner of 

connected with drainage into the Aberjona River and its Public Health. 

tributaries. November 27. 

Your first question is as follows: — "Is the word sewage 
in chapter 291, Acts of 1911, to be interpreted to include 
all manufacturing filth or refuse, even if free from human 
excreta or household wastes?" 

I am of the opinion that the word "sewage" in the statute 
under consideration is not limited to household wastes and 



290 OPINIONS OF THE ATTORNEY-GENERAL. 

human excreta, but includes filth and refuse from manu- 
factories as well as from dwellings. 

No precise definition of the word "sewage," applicable 
to all conditions, is given in the decisions of our Supreme 
Court or in the statutes. The connotation of the word 
varies with regard to the context of the particular act under 
consideration, but it is not in any event limited so as to 
apply only to what is sometimes called "house slops." As 
used in the present statute the essential character of the thing 
designated as sewage is that it is something carried into 
the river through a sewer. The entrance into the river of 
other noxious substances which might be carried by flow, 
percolation or surface drainage into the stream is taken 
care of by the last clause of the section. The word "sewage" 
has been defined in various decisions along these general 
lines : — 

The refuse and foul matter, solid or liquid, carried through a sewer by 
the water flowing therein. (Wendell v. Waukesa, 110 Wis. 101.) 

The refuse and foul matter, solid or liquid, which a sewer carries off. 
(Morgan v. Danbury, 67 Conn. 484.) 

The matter which passes through sewers; excreted and waste matter, 
solid and liquid, carried off in sewers. (Century Dictionary.) 

Sewerage is a system of drainage by means of sewers, and sewage is 
sometimes used to denote the water flowing in or carried off by sewers and 
sometimes the system of sewers for carrying off filth or superfluous water. 
(Wilson V. Chicago Sanitary Dist., 133 111. 443.) 

Excrement, waste stuff or dye material washed into a river by the sur- 
face drainage and not conducted there by a system of pipes is not sewage. 
(Durham v. Eno Mills, 144 N. C. 705.) 

Your second question is as follows: — "In the opinion of 
the Attorney General is St. 1911, c. 291, to be interpreted 
to mean that the department is to prohibit the discharge 
of sewage into the Aberjona River or its tributaries, even 
though the quantity of sewage now being discharged into 
said river or tributaries is insufficient to create a nuisance 
or cause injury to the public health?" 

Under the act in question your department has the power 



JAY R. BENTON, ATTORNEY-GENERAL. 291 

to prevent the discharge of any sewage into the Aberjona 
River. 

Your third question is as follows: — "Is it the duty of the 
department to prohibit the discharge of both sewage and 
manufacturing wastes into the Aberjona River or its tribu- 
taries, even though neither sewage nor such waste is now 
being discharged there in such quantities as to cause the 
condition of the river to be injurious to public health or to 
create a public nuisance?" 

As I have said in my answer to your second inquiry, your 
department has the power to prohibit the discharge of any 
sewage into the river. It also has the power to prohibit 
the discharge into the river of any substance which cannot 
be said to be included in the term ''sewage" and which is 
or may be injurious to public health or creates or has a 
tendency to create a public nuisance. In regard to these 
substances other than sewage, the department's power to 
prohibit their entrance into the river exists only if they may 
reasonably be said to create or to be likely to create the 
conditions mentioned, that is, injury to public health or 
formation of a public nuisance. 

As regards sewage, no previous determination of the 
department as to the conditions which may be created by 
the sewage is necessary. I am of the opinion, however, 
that it is left to the discretion of the department to exercise 
its power of prohibition, both as to sewage and as to other 
substances, in a reasonable manner, with due regard to 
the public welfare. The department is not required by 
the terms of the act to prohibit the entrance of all sewage. 
It is its duty, however, to prohibit the entrance of any 
sewage which it finds injurious or likely to be injurious to 
the public. It is its duty to deal with "other substances" 
in like manner, and it may prohibit the entrance of sewage 
altogether. 

That the words "authorized and directed," as used by 
the Legislature in this statute, are not, strictly speaking, 
mandatory, but do so far compel the department to action 



292 OPINIONS OF THE ATTORNEY-GENERAL. 

that it cannot arbitrarily or capriciously refuse to act, but is 
permitted to use a wise discretion as to when it shall proceed 
to prohibit, seems to be indicated by the provisions of section 
2, which directs the department to use persuasion and advice 
as a means of remedying pollution which may be occurring 
or likely to occur. Whether the department should or 
should not exercise its authority to prohibit discharges into 
the river in any particular instance depends upon a determi- 
nation of the facts relative thereto and an application of 
the principles of law suggested. 

Upon the questions of fact involved this office cannot pass. 
It is for the department to say whether the public interest 
requires it to act to prohibit the discharge of sewage or 
other substances into the river. In the absence of any 
injury to the public or individuals, or the likelihood of any 
such injury arising from a given set of conditions, it would 
not appear to be obligatory on the department to take any 
steps under the provisions of the act. 

Your fourth question is as follows: — "Can the depart- 
ment, in case it should find that a nuisance exists in a tribu- 
tary stream which disappears before reaching the main 
stream, prohibit the entrance or discharge of sewage, etc., 
into the tributary only, or must any order under this act 
cover the entire stream and its tributaries?" 

In my opinion, the provisions of the act under consider- 
ation permit the department, in the reasonable exercise 
of its discretion, to prohibit the discharge of sewage into 
the river or into any of its tributaries, as such, and the 
prohibition may be enforced as to the whole river system 
or as to any of its parts. 



jay r. benton, attorney-general. 293 

License to maintain Garage and keep Gasoline — 
License Commissioners of Cambridge — State 
Fire Marshal — Commissioner of Public Safety 
— Right of Appeal — Matters for Consideration. 

Under G. L., c. 148, § 45, an appeal lies to the State Fire Marshal from a decision 
of the board of license commissioners of Cambridge in granting a license to 
conduct or maintain a garage of the first class and to keep inflammable liquid 
in connection therewith, and, under G. L., c. 147, § 5, to the Commissioner 
of Public Safety from a decision of the State Fire Marshal confirming such 
grant. 

The State Fire Marshal and the Commissioner of Public Safety, in making decisions 
on such appeals, have the right to consider not only fire hazard but the in- 
convenience and annoyance of persons affected and the general good order 
and welfare of the community. 

You have requested my opinion on three questions of law m?9sipnM°S' 
arising out of the following situation : — "^ 1923 ^^*^" 

November 28. 

On May 23, 1923, , Street, Cambridge, 

petitioned the board of license commissioners of Cambridge for a license 
to conduct or maintain a garage of the first class for eight cars additional, 
and keeping or storing volatile inflammable liquid in connection therewith 
in tanks of cars only. 

After due notice and hearing held on June 19, 1923, said license was 
granted. 

On August 9, 1923, appeal was made to the State Fire Marshal, re- 
questing that the State Fire Marshal give a hearing in the case. On 
August 20, 1923, the State Fire Marshal granted a hearing and made the 
following decision: 

"The decision of the Board of License Commissioners granting a license 
to conduct or maintain a garage of the first class for eight cars and to keej) 
volatile inflammable liquid in connection therewith, in tanks of cars only, 

at No. Street, in the city of Cambridge, is liereby 

confirmed." 

An appeal from the decision of the State Fire Marshal to the Com- 
missioner of Public Safety was taken, and on October 29, 1923, the Com- 
missioner of Public Safety granted a hearing on this appeal. 

Your first question is : Does a right of appeal lie from the 
board of license commissioners of Cambridge to the State 
Fu-e Marshal? 

The answer is "Yes." G. L., c. 148, § 45, specifically 
provides for such an appeal. 



294 OPINIONS OF THE ATTORNEY-GENERAL. 

Your second question is : Does an appeal lie from the State 
Fire Marshal's decision to the Commissioner of Public 
Safety? 

The answer to this question is also in the affirmative. 
See G. L., c. 147, § 5; also, V Op. Atty. Gen. 718. 

Your third question is as follows : What facts can legally 
be considered by the State Fire Marshal and the Com- 
missioner of Public Safety in arriving at a decision on this 
case? Should this opinion be based entirely on the fire 
hazard or may any and all facts relative to such matter, 
and which might rightfully be considered by the board of 
license commissioners of Cambridge, be considered by the 
Fire Marshal and the Commissioner of Public Safety in 
arriving at a decision? 

First, it is to be pointed out that the powers of the State 
Fire Marshal and, in turn, the Commissioner are not affected 
by Spec. St. 1919, c. 83, or St. 1922, c. 95, as both acts 
specifically provided that "nothing herein contained shall 
affect the authority of the state fire marshal." For the 
purposes of this decision, St. 1894, c. 399, contained prac- 
tically the same provisions as are now found in G. L., c. 148, 
§ 14, which section provides, in brief, that no building shall 
be used for the keeping, storage, etc., of inflammable articles 
unless licensed. In construing this act the Supreme Judicial 
Court, in the case of Commonwealth v. Packard, 185 Mass. 
64, 67, held that the tribunal designated to pass upon and 
determine whether a license should be issued might give 
due consideration to those who might be inconvenienced 
and annoyed, and also have a proper regard for the general 
good order and welfare of the community. While G. L., 
c. 148, § 14, applies outside of the metropolitan fire pre- 
vention district, yet by section 30 the Marshal is given, 
within the metropolitan district, the powers given by said 
section 14; so that the decision of the court applies here: 
with the result, that the State Fire Marshal had, and the 
Commissioner of Public Safety has, on the appeal now 
l)efore him, the right not only to consider the fire hazard 



JAY R. BENTON, ATTORNEY-GENERAL. 295 

but, as the court pointed out, the right to give consideration 
to those who may be inconvenienced and annoyed, and to 
have a proper regard for the general good order and welfare 
of the community. 



November 30. 



Registrar of Motor Vehicles — Records in Certain 
Criminal Cases. 

It is the duty of courts and trial justices to send to the Registrar of Motor Vehicles 
abstracts of records of cases in which persons are charged with violations of 
the automobile laws, when such cases have been disposed of. 

Courts and trial justices are not bound to send to the Registrar of Motor Vehicles 
abstracts of cases which have been continued but not disposed of. 

You request my opinion as to whether the courts are '^^isl^oiS'S' 
required to send to the Registrar of Motor Vehicles abstracts ^^t.^}^^^''''^- 
of certain records of cases in which persons are charged with 
violation of any of the provisions of G. L., c. 90. 

G. L., c. 90, § 27, provides, in part: — 

A full record shall be kept by every court and trial justice of every case 
in which a person is charged with a violation of any provision of this 
chapter, and an abstract of such record shall be sent forthwith b}^ the 
court or trial justice to the registrar. Said abstracts shall be made upon 
forms prepared by the registrar, and shall include all necessary infor- 
mation as to the parties to the case, the nature of the offence, the date of 
the hearing, the plea, the judgment and the result; and every such abstract 
shall be certified by the clerk of the court or by the trial justice as a true 
abstract of the record of the court. 

It is the clear intent of the statute that abstracts of records 
of cases that are disposed of, regardless of the manner 
of disposition, shall be sent forthwith to the Registrar of 
Motor Vehicles. I am therefore of the opinion that it is 
the duty of courts and trial justices in all cases in which 
persons are charged with a violation of any provision of 
G. L., c. 90, to send forthwith to the Registrar abstracts of 
records of such cases as have been disposed of. This 
includes cases where there has been an acquittal, a con- 



296 



OPINIONS OF THE ATTORNEY-GENERAL. 



viction and fine, or the defendant placed on probation, or 
where a plea of nolo has been accepted and the case placed 
on file. Courts and trial justices are not bound to send to 
the Registrar abstracts of cases which have been continued 
from time to time but have not been disposed of. 



State House Grounds — Traffic and Parking Regu- 
lations — Authority of Superintendent of Build- 
ings. 

Pursuant to statutory authority, the title to the ways within the State House 
grounds has been acquired by the Commonwealth, and the streets formerly 
located therein have been discontinued. 

Under G. L., c. 8, §§ 4, 9 and 12, and c. 85, § 23, the Superintendent of Buildings, 
with the approval of the Governor and Council, may make traffic and parking 
regulations applicable to ways within the State House grounds, and may 
enforce such regulations through watchmen appointed by him. 



To the Super- 
intendent of 
Buildings. 

1923 
December 5. 



You ask me to give you my opinion as to the following 
points : — 

1. As to the authority of the Superintendent of Buildings to make 
traffic regulations and enforce the same. 

2. As to the authority of the Superintendent of Buildings to make 
l^arking regulations and enforce the same. 

3. As to the jurisdiction of the Superintendent of Buildings over Mt. 
Vernon Street between Bowdoin and Hancock streets with reference to 
parking and traffic. 

4. As to the jurisdiction of the Superintendent of Buildings over the 
driveway within the State House yard, from a point opposite the end of 
Ashburton Place to the junction of the driveway with Mt. Vernon Street, 
as to parking and traffic. 

5. If you find that the Superintendent of Buildings has authority and 
jurisdiction in the above matters, can he vest that authority in the watch- 
men in his department who act as traffic officers? 

By St. 1888, c. 349, and several succeeding statutes, a 
taking was authorized by purchase or otherwise, in the name 
and behalf of the Commonwealth, of land adjacent to or 
near the State House, including that portion of Mt. Vernon 
Street as now extended from Hancock Street to Bowdoin 



JAY R. BENTON, ATTORNEY-GENERAL. 297 

Street and the driveway from a point opposite the end of 
Ashburton Place to its junction with Mt. Vernon Street. 
Said succeeding statutes are St. 1892, c. 404; St. 1893, 
c. 450; St. 1894, c. 532; and St. 1901, c. 525. St. 1888, c. 
349, § 6, also authorized the discontinuance of Temple 
Street, between Mt. Vernon Street and Derne Street, and 
any other avenue or way on the land acquired or taken 
under the act; and St. 1901, c. 525, authorized the closing 
of Mt. Vernon Street from Beacon Street to the State House 
Arch. 

Pursuant to the authority so granted, the land described 
in these statutes has been acquired by the Commonwealth 
and title is vested in the Commonwealth, in fee, and Temple 
Street, from Derne Street to Mt. Vernon Street, and Mt. 
Vernon Street, from Hancock Street to Beacon Street, have 
been discontinued, by takings duly recorded with Suffolk 
Deeds (Lib. 1849, fol. 225; Lib. 2076, fol. 245; Lib. 2124, 
fol. 507), and by order of the Governor and Council, July 
24, 1901. The order of the Governor and Council is as 
follows : — 

Ordered: That the Governor and Council actmg under chapter 525 of 
the acts of the current year and under every other power and authority 
hereto enabUng, hereby close Mt. Vernon street from Beacon street to 
the State House Arch, and lay out for use as a park, with driveways, 
walks, grass-plots, curbing and railing, with new approaches to the State 
House from Bowdoin street and from Beacon street, that tract of land 
lying easterly of the State House and westerly of Bowdoin street as 
widened and established by an order of the Governor and Council of 
even date herewith, in accordance with Plan No. 1717-15, made by 
Ernest W. Bowditch, Landscape Engineer, Boston, Mass., July 2, 1901, 
and on file with the records of the councU. 

Plan No. 1717-15, referred to in said order, shows the 
driveway from a point opposite the end of Ashburton Place 
to its junction with Mt. Vernon Street substantially as 
it now is. 

The powers and duties of the Superintendent of Buildings 
are defined in G. L., c. 8. Sections 4, 9 and 12 of that 
chapter contain the following provisions : — 



298 OPINIONS OF THE ATTORNEY-GENERAL. 

Section 4. He may appoint such clerks, engineers, electricians, fire- 
men, oilers, mechanics, watchmen, elevator operators, porters, cleaners 
and other persons as may be necessary to enable him to perform his duties. 

Section 9. The superintendent shall, under the supervision of the 
governor and council, have charge of the care and operation of the state 
house and its appurtenances . . . 

Section 12. The superintendent shall take proper care to prevent 
any trespass on, or injury to, the state house or its appurtenances, or 
any other building or part thereof in Boston owned by or leased to the 
commonwealth for public offices; and if any such trespass or injury is 
connnitted, he shall cause the offender to be prosecuted therefor. For 
any criminal offence committed in any part of the state house or the 
grounds appurtenant thereto, or in any other building in Boston owned 
by or leased to the commonwealth, the superintendent and his watch- 
men shall have the same power to make arrests as the police officers of 
Boston. 

G. L., c. 85, § 23, is as follows: — 

The governor, with the advice and consent of the council, may make 
l)y-laws for the regulation of travel on ways belonging to the common- 
wealth. Whoever violates any such by-law shall be punished by a fine 
of not more than fifty dollars. 

In my opinion, these provisions contain a sufficient grant 
of autliority to the Superintendent of Buildings to make 
traffic and parking regulations appUcable to the ways 
referred to in your inquiry, which should be approved by 
the Governor and Council, and to enforce such regulations 
through the watchmen appointed by him. See Common- 
wealth V. Brooks, 109 Mass. 355; Commonwealth v. Mulhall, 
162 Mass. 496; Commonwealth v. Newhall, 205 Mass. 344. 



jay r. benton, attorney-general. 299 

Taxation — Domestic Business Corporation — De- 
duction ON Account of Leasehold Interest. 

The purpose of the deductions in the corporation tax law is to avoid double taxation. 

Leaseholds are not real estate subject to local taxation, and therefore are not de- 
ductible, under G. L., c. 63, §30, par. 3, (a) and (c), whether the property is 
within or outside the Commonwealth. 

Since buildings on land are taxable with the land as real estate, although by agree- 
ment, as against the owner, they may be considered as personal property, a 
lessee corporation is not entitled to a deduction on account of a building erected 
by it on the land of another. 

You ask my opinion upon various questions concerning m?ssionS°^" 
the right of a domestic business corporation owning a lease- anFxIxation. 
hold interest in real estate to a deduction under G. L., c. December lo. 
63, § 30, par. 3, (a) and (c), on account of such leasehold 
interest. Said provisions are as follows : — 

3. "Corporate excess," in the case of a domestic business corporation, 
the fair cash value of all the shares constituting the capital stock of a 
corporation on the first day of April when the return called for by section 
thirty-five is due, less the value of the following: 

(a) The works, structures, real estate, machinery, poles, underground 
conduits, wires and pipes owned by it within the commonwealth subject 
to local taxation, except such part of said real estate as represents the 
interest of a mortgagee. 

(c) Its real estate, machinery, merchandise and other tangible property 
situated in another state or country, except such part thereof as represents 
the interest of a mortgagee. 

Apart from statute a lease of land is, in a general sense, 
personal estate. It is, however, an interest in land, and 
is called a chattel real. Moulton v. Commissioner of Corpo- 
rations and Taxation, 243 Mass. 129. In Massachusetts 
it is provided by statute (G. L., c. 4, § 7) that "in construing 
statutes the following words shall have the meanings herein 
given, unless a contrary intention clearly appears: . . . 
Seventeenth, 'Land,' 'lands' and 'real estate' shall include 
lands, tenements and hereditaments, and all rights thereto 
and interests therein"; and our court has said that ''these 
words are broad enough to comprehend leases." Moulton 



300 OPINIONS OF THE ATTORNEY-GENERAL. 

V. Commissioner of Corporations and Taxation, supra, 132. 
If, therefore, the question were simply whether the words 
"real estate," occurring in G. L., c. G3, § 30, par. 3, (a) and 
(c), should be construed to include leaseholds, without 
taking into account their context and the history of their 
use in that connection, the answer would not be free from 
doubt. Consequently, your inquiry requires some ex- 
amination of the history and purpose of the corporation 
tax laws of Massachusetts. 

The first statute providing for a franchise tax on corpo- 
rations was St. 1864, c. 208. Under that act an excise 
was levied upon the franchise of domestic corporations, 
based upon the total value of their capital stock after de- 
ducting the value of their real estate and machinery for 
which they were actually locally taxed. Commonwealth 
V. Hamilton Mfg. Co., 12 Allen, 298; New England, etc., 
S. S. Co. V. Commonwealth, 195 Mass. 385; Simplex Elec. 
Heating Co. v. Commonwealth, 227 Mass. 225. Sections 
1 and 5 of the act were as follows : — 

Section 1 . The assessors of the several cities and towns shall annually, 
on or before the first Monday of August, return to the treasurer of the 
Commonwealth the names of all corporations having a capital stock 
divided into shares, chartered by this Commonwealth or organized under 
the general laws and established in their respective cities and towns, or 
owning real estate therein, and the value of the real estate and machinery 
for which each was taxed in such cities and towns on the first day of May 
preceding. 

Section 5. The treasurer and the auditor of the Commonwealth shall 
be a board of commissioners wlio shall, excepting in the cases of telegraph, 
coal and mining companies, and such railroad companies as own lines of 
railroad extending beyond the limits of the state, ascertain from the returns 
or otherwise, the excess of the market value of all the capital stock of 
each corporation or banking association not exempted from taxation, 
state and municipal, by the laws of the United States, over the value of 
its real estate and machinery, if any, as returned under the first section 
of this act, and shall annually, on or before the first Monday of October, 
notify its cashier or treasurer respectively, of the excess thus ascertained ; 
and every such corporation or banking association shall annually, on or 



JAY R. BENTON, ATTORNEY-GENERAL. 

before the first Monday of November, pay to the treasurer of the Common- 
wealth a tax of one and one-sixth per cent, upon such excess. Nothing 
in this section shall affect the liability of any bank, insurance company, 
or any other corporation for any other tax imposed upon it, and payable 
to the treasurer of the Commonwealth under other existing laws. 

By St. 1865, c. 283, it was provided that the Tax Com- 
missioner should determine the value and amount of all real 
estate and machinery owned by each corporation and subject 
to local taxation, instead of merely taking the local assessors' 
figures, the rate was changed from one and one-sixth per 
cent to the average tax rate of all the cities and towns, and 
the deduction was extended to include the value of real estate 
and machinery wherever situated. Sections 1, 4 and 5 
of that act were, in part, as follows : — 

Section 1 . The assessors of the several cities and towns shall annually, 
on or before the first Monday of August, return to the tax commissioner 
hereinafter named, the names of all corporations, except banks of issue and 
deposit, having a capital stock divided into shares, chartered by this Com- 
monwealth or organized under the general laws, for purposes of business or 
profit, and established in their respective cities and towns, or owning real 
estate therein, and a statement in detail of the works, structures, real 
estate and machinery owned by each of said corporations, and situated 
in such city or town, with the value thereof, on the first day of May 
preceding, and the amount at which the same is assessed in said city or 
town for the then current year. They shall also, at the same time, return 
to said tax commissioner the amount of taxes laid, or voted to be laid, 
within said city or to^\^l, for the then current year, for state, county and 
town purposes, including highway taxes. 

Section 4. The tax commissioner shall ascertain, from the returns or 
otherwise, the true market value of the shares of each corporation included 
in the provisions of section three, and shall estimate therefrom the fair 
cash valuation of all of said shares constituting the capital stock of such 
corporation on the first day of May next preceding, which shall be taken 
as the true value of its corporate franchise for the purposes of this act. 

He shall also ascertain and determine the value and amount of all real 
estate and machinery owned by each corporation, and subject to local 
taxation, and to the deductions hereinafter provided; and for this purpose 
he may take the amount or value at which such real estate and machinery 
are assessed at the place where the same are located as the true amount 



301 



302 OPINIONS OF THE ATTORNEY-GENERAL. 

or value; but such local assessment shall not be conclusive of the true 
amount or value thereof. 

Section 5. Every corporation embraced in section three shall annually 
pay a tax upon its corporate franchise at a valuation thereof equal to the 
aggregate value of the shares in its capital stock, as determined in the 
preceding section, after making the deductions provided for in this section, 
at a rate determined by an apportionment of the whole amount of money 
to be raised by taxation upon property in the Commonwealth during the 
same current year, as returned by the assessors of the several cities and 
towns under section one, upon the aggregate valuation of all the cities and 
towns in the Commonwealth for the preceding year, as returned under 
chapter one hundred and sixty-seven of the acts of the year eighteen 
hundred and sixty-one, and acts in addition thereto: . . . From the 
valuation, ascertained and determined as aforesaid, there shall be de- 
ducted, — . . . Second, in case of other corporations, included in section 
three, an amount equal to the value, as determined by the tax com- 
missioner, of their real estate and machinery, subject to local taxation, 
wherever situated. 

The system thus established was substantially continued 
down to the enactment of St. 1903, c. 437. New England, 
etc., S. S. Co. V. Commonwealth, 195 Mass. 385, 387. In 
that statute additional deductions were allowed of the value 
of securities which, if owned by a natural person resident 
in the Commonwealth, would not be liable to taxation, and 
of property generally (instead of real estate and machinery 
only) situated in another state or country and subject to 
taxation therein. It was held that the word "property," 
there used, meant tangible property, such as real estate, 
merchandise, machinery and animals. Bellows Falls Power 
Co. V. Commonwealth, 222 Mass. 51 ; Simplex Elec. Heating 
Co. V. Commonwealth, 227 Mass. 225. See Nichols, Tax- 
ation in Massachusetts, 2nd ed., p. 542. In 1902 under- 
ground conduits, wires and pipes were made locally tax- 
able, and their value was deducted from the corporate 
franchise tax. St. 1902, c. 342. Poles were treated in 
the same way in 1909. St. 1909, c. 439. See St. 1909, 
c. 490, pt. Ill, § 41; Nichols, Taxation in Massachusetts, 
2nd ed., p. 539. As thus modified, the franchise tax law 
was continued without modification important to this 



JAY R. BENTON, ATTORNEY-GENERAL. 303 

discussion until 1919. In that year the structure of the 
corporation tax law was materially changed and a tax 
on income was added as an additional factor of the tax. 
Gen. St. 1919, c. 355; codified in G. L., c. 63, §§ 30-52. 
The provisions of the old law for determining the value of 
the corporate franchise were then carried over and applied 
to the determination of the ''corporate excess" which forms 
the basis of one factor of the present excise tax. 

The reason for the deduction allowed for real estate and 
machinery in the acts of 1864 and 1865 was to avoid double 
taxation, the real estate and machinery of corporations 
being subject to local taxation in the towns where they 
were situated. Commonwealth v. Hamilton Mfg. Co., 12 
Allen, 298, 305, 306; F tremens Ins. Co. v. Commonwealth, 
137 Mass. 80, 83. The deductions were extended when it 
was found that in some other respects the system resulted in 
double taxation of corporations. Farr Alpaca Co. v. Co7n- 
monwealth, 212 Mass. 156, 159, 160. But a corporation 
was entitled to deductions only so far as deductions were 
allowed by the statute. Commonwealth v. New England 
Slate & Tile Co., 13 Allen, 391 ; Simplex Elec. Heating Co. 
V. Commonwealth, 227 Mass. 225, 229. 

By St. 1881, c. 304, §§ 1-3, the local tax law was amended 
by making provision for taxing separately as real estate the 
interest of a mortgagee (see G. L., c. 59, §§ 12-14). In 
Firemens Ins. Co. v. Commonwealth, 137 Mass. 80, 83, it 
was held that this statute made the interest of a mortgagee, 
for all purposes of taxation, real estate subject to local 
taxation, and thus brought such interest within the words of 
the corporation franchise tax law, requiring the Tax Com- 
missioner to deduct an amount equal to the value "of their 
real estate and machinery, subject to local taxation, wherever 
situated." The rule thus declared prevailed until Gen. 
St. 1919, c. 332, which amended the previous law by ex- 
cepting from the deductions allowed "that part of the said 
value which, as matter of law, may be deemed to be real 
estate and is represented by a mortgage debt." This was 



304 OPINIONS OF THE ATTORNEY-GENERAL. 

to prevent the amount of a mortgage from being deducted 
twice. Nichols, Taxation in Massachusetts, 2nd ed., pp. 
539, 540. This exception is carried over into G. L., c. 63, 
§ 30, par. 3, (a) and (c). 

Leaseholds are not, for purposes of taxation, real estate 
subject to local taxation. "Taxes on real estate shall be 
assessed, in the town where it lies, to the person who is 
either the owner or in possession thereof on April first." 
G. L., c. 59, § 11. Except for the separate tax on the interest 
of a mortgagee, a real estate tax is a tax on the land as a whole 
and not merely on the interest of the person taxed, although 
the tax may be assessed either to the owner or to the person 
in possession of the land. Parker v. Baxter, 2 Gray, 185, 
189; Worcester v. Boston, 179 Mass. 41, 48; Donovan v. 
Haverhill, 247 Mass. 69. 

It is obvious, therefore, that a domestic corporation 
owning a leasehold interest in Massachusetts real estate is 
not entitled, under G. L., c. 63, § 30, par. 3 (a), to a deduction 
of the value of that interest. It is only the value of "real 
estate . . . subject to local taxation" which may be de- 
ducted. "Real estate," for the purpose of the deduction 
provided by G. L., c. 63, § 30, par. 3 (a), as well as for the 
purpose of assessment under G. L., c. 59, § 11, is the entire 
estate, and not some lesser interest therein. This de- 
duction, by the terms of the statute, is allowed to a corpo- 
ration only when it owns estate in the sense described. 
It is not allowed to a corporation which owns a lease merely, 
or even a mortgage interest. It is not allowed to a lessee 
corporation even if the land is assessed to the lessee as 
occupant, but the lessee may recover the tax of his landlord 
unless there is a different agreement between them. G. L., 
c. 59, § 15. See Nichols, Taxation in Massachusetts, 2nd 
ed., p. 540. 

Prior to Gen. St. 1919, c. 332, the provision for a deduction 
of the value of real estate and certain other kinds of property 
outside the jurisdiction, first authorized by St. 1865, c. 283, 
and extended by St. 1903, c. 437, § 72, was limited by the 



JAY R. BENTON, ATTORNEY-GENERAL. 305 

phrase "subject to local taxation," or, in the language of the 
act of 1903, "subject to taxation therein." That phrase 
was omitted in Gen. St. 1919, c. 332, and in the corresponding 
provision of Gen. St. 1919, c. 355, pt. I, § 1, because it was 
found that corporations were being taxed in many states by 
excise or income taxes on their local business rather than by 
taxes directly on their property in the jurisdiction, and that 
they were consequently suffering from the effects of a con- 
siderable amount of double taxation. See report of joint 
special committee on taxation. Senate Document No. 313 
of 1919. Thereafter a corporation was entitled to a de- 
duction on account of the value of real estate and other 
tangible property outside the Commonwealth, whether 
or not the property was directly subject to taxation where 
it was situated. The purpose of the change was to exempt 
from an indirect tax by the Commonwealth property, 
situated elsewhere, which was indirectly, but not directly, 
taxed where it was situated. This was in accordance with 
the "progressive tendency" of our statutes, referred to in 
Farr Alpaca Co. v. Commonwealth, 212 Mass. 156, 159, 160, 
"to prevent the technical distinction between excises and 
property taxes from resulting in double taxation." The 
words "real estate," as used in clause (c), were not intended, 
in my judgment, to have a different and broader meaning 
from that which they have in clause (a), i. e., the land itself, 
although in clause (c) they are not qualified by the words 
"subject to local taxation." This view is to some extent 
supported by the correlation of the words "other tangible 
property." CJ. Bellows Falls Power Co. v. Commonwealth, 
222 Mass. 51 ; Simplex Elec. Heating Co. v. Commonwealth, 
227 Mass. 225. It is my opinion, therefore, that a domestic 
corporation is not entitled to a deduction for a leasehold 
interest in real estate outside the Commonwealth. 

You also ask to what deduction, if any, a lessee corporation 
is entitled on account of a building erected by it on the land 
of another. 

A building may be considered as personal property 



306 OPINIONS OF THE ATTORNEY-GENERAL. 

belonging to a person other than the owner of the land to 
which it is affixed, as against the owner of the land and others 
having notice, if at the time it was annexed there was an 
agreement, express or implied, that it should be so held. 
First Parish in Sudbury v. Jones, 8 Cush. 184, 189, 190; 
Gibhs V. Estey, 15 Gray, 587; Howard v. Fessenden, 14 Allen, 
124, 128; Hunt v. Bay State Iron Co., 97 Mass. 279; Madigan 
V. McCarthy, 108 Mass. 376; Trask v. Little, 182 Mass. 8. 
But ''buildings affixed to land are in their nature real 
property, and they are only considered as personal property 
between the parties to an agreement making them such and 
those who purchase the land with knowledge of the agree- 
ment; they pass as a part of the land to a puchaser for value 
without notice." McGee v. Salem, 149 Mass. 238, 240. 
The tax law makes no provision for taxing buildings sepa- 
rately from the land. On the contrary, G. L., c. 59, § 3, 
provides : — 

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. . . . 

Accordingly, it has been held that all buildings on land 
are taxable with the land as real estate. Phinney v. Foster, 
189 Mass. 182, 187. See also Milligan v. Drury, 130 Mass. 
428; McGee v. Salem, 149 Mass. 238. 

By St. 1909, c. 490, pt. Ill, § 41, cl. 3rd, the provision 
giving to domestic business corporations a deduction of 
the value of certain property within the Commonwealth 
subject to local taxation was changed by inserting the words 
"works" and ''structures." These words would seem to 
be superfluous. The reason for their inclusion is stated in 
the report of the commission on taxation for the year 1908, 
in the following note, at page 205 : — 

By the provisions of section 40 (Revised Laws, chapter 14, section 37; 
Acts of the year 1906, chapter 463, part II, section 211, part III, section 
125; chapter 516, section 14), corporations are required, among other 



JAY R. BENTON, ATTORNEY-GENERAL. 307 

things, to make return of their works, structures, real estate and ma- 
chinery. This requirement is clearly for the purpose of giving to the 
Tax Commissioner such information as will aid him in making the de- 
ductions provided for in this section. While it may be doubtful that 
anything can be included in the words "works, structures" that could not 
fairly be embraced within the meaning of real estate and machinery, the 
commission has thought it proper to employ the same phraseology in the 
deduction as in the return section; and therefore has added the words 
"works, structures," omitted in Revised Laws, chapter 14, section 38, 
in this and other sections where a corresponding omission occurs. 

Clearly, in my opinion, they do not serve to extend to a 
lessee corporation a right to deduct the value of a building 
which, as between itself and its lessor, is personal property 
belonging to the lessee, since such a structure is taxable to 
the lessor as real estate. 



State Retirement Association — Workmen's Com- 
pensation — Injured Employee — Retirement. 

Payments made in accordance with the requirements of the Workmen's Compen- 
sation Act are not to be construed by the Board of Retirement as salary or 
wages. 

If a member of the Retirement Association above the age of seventy years applies 
for retirement because of age and service and not because of any disability, 
his retirement allowance should be figured from the date on which he should 
have automatically been removed from the service at the age of seventy years, 
in accordance with the statute [G. L., c. 32, § 2, par. (4)]. 

I acknowledge the receipt of your communication wherein t° jiie Board 

^ 1- ^ of Retirement. 

you state as follows: Because of an injury received on July oecimb^eria. 
20, 1918, a member of the Retirement Association was "7" 
awarded, by agreement between the Industrial Accident 
Board and the Metropolitan Water and Sewerage Board, 
now the Metropolitan District Commission, weekly pay- 
ments of workmen's compensation. These weekly payments 
to him continued until September 27, 1923, when the In- 
dustrial Accident Board approved an agreement to redeem 
liability by the payment of $1,100 in a lump sum. 

During the time the workmen's compensation payments 



308 OPINIONS OF THE ATTOENEY-GENERAL. 

were being made to this beneficiary he retained his member- 
ship in the Retirement Association, because at the time of 
his injury he^iad reached sixty years of age and had com- 
pleted at least fifteen years of service. This member has 
now applied for retirement under the provisions of the general 
contributory law, because of his age and service and not 
because of any disability for which the workmen's com- 
pensation payments were paid to him. He has submitted 
proof that he is older than he has always claimed to be, so 
that if he had not been injured and had remained in the 
service, this proof of age would have required his retire- 
ment four years ago, at age seventy, the compulsory retire- 
ment age. 

You request my opinion upon the following questions 
based on the above facts : 

1. Has the Board of Retirement the right now to retire the aforesaid 
member? 

2. If the answer to question 1 is in the affirmative, from what date shall 
the payment of the retirement allowance be figured — (a) the date the 
application for retirement was made, or (b) the date the aforesaid member 
would have been automatically removed from the service at the age of 
seventy years? 

G. L., c. 32, § 2 (4), provides as follows: — 

Any member who reaches the age of sixty and has been in the con- 
tinuous service of the commonwealth for a period of fifteen years immedi- 
ately preceding may retire or be retired by the board upon recommend- 
ation ol the head of the department in which he is employed, or, in case 
^ of members appointed by the governor, upon recommendation of the 

governor and council, and any member who reaches the age of seventj' 
must so retire. 

G. L., c. 32, § 5 (2) A (a), provides as follows: — 

Should a member of the association enter a position in the service of 
the commonwealth not covered by sections one to five, inclusive, or cease 
to be an employee of the commonwealth for any cause other than death, 
or for the purpose of entering the service of the public schools as defined 



JAY R. BENTON, ATTORNEY-GENERAL. 309 

in section six, before becoming entitled to a pension, there shall be re- 
funded to him all the money paid in by him under section four (2) A, with 
such interest as shall have been earned thereon. 

In an opinion of a former Attorney General (V Op. Atty. 
Gen. 192) it was held that, — 

The phrase "before becoming entitled to a pension" must be interpreted 
as meaning before having become entitled to retire as a matter of right. 
It thus i-estricts refunds to persons who have not yet acquired voluntary 
retirement rights. 

The member in question, having retained his membership 
in the Retirement Association, is now entitled to retirement, 
and your board has the right to retire him under the pro- 
visions of G. L., c. 32, § 2 (4), and I so answer your first 
question. 

In an opinion of a former Attorney General to the 
Treasurer and Receiver General, dated December 21, 1914, 
it was decided that payments made in accordance with the 
requirements of the Workmen's Compensation Act are not 
to be construed by the Board of Retirement as salary or 
wages. This is in conformity with the decision of the 
Supreme Judicial Court in King v. Viscoloid Co., 219 Mass. 
420, wherein the court says (p. 425) : — 

It has been suggested that the statutory compensation given to an . . . 
employee is really a payment of wages . . . But this is not so. The 
qvMntiim of the compensation is measured by the amount of the wages; 
but the payment is in place of all the rights of action that belong to the 
injured employee, and covers suffering and temporary or permanent dis- 
ability as well as loss of wages. 

G. L., c. 152, § 69, provides as follows: — 

The commonwealth and any county, city, town or district having the 
power of taxation which has accepted chapter eight hundred and seven 
of the acts of nineteen hundred and thirteen shall pay to laborers, work- 
men and mechanics employed by it who receive injuries arising out of and 
in the course of their emplojonent, or, in case of death resulting from such 
injury, to the persons entitled thereto, the compensation required by 



310 OPINIONS OF THE ATTORNEY-GENEKAL. 

this chapter. Sections sixty-nine to seventy-five, inclusive, shall apply 
to the connnonwealth and to any county, city, town or district having the 
power of taxation which has accepted said chapter eight hundred and seven 
of the acts of nineteen hundred and thirteen. 

G. L., c. 152, § 73, provides as follows: — 

Any person entitled to receive compensation as provided by section 
sixty-nine from the commonwealth or from such county, city, town or 
district, who is also entitled to a pension by reason of the same injury, 
shall elect whether he will receive such compensation or such pension, 
and shall not receive both. If a person entitled to such compensation 
from the commonwealth or from such county, city, town or district 
receives by special act a pension for the same injury, he shall forfeit all 
claim for compensation; and any compensation received by him or paid 
by the commonwealth or by such county, city, town or district which 
employs him for medical or hospital services rendered to him may be 
recovered back in an action at law. No further payment shall be awarded 
by vote or otherwise to any person who has clauned and received com- 
pensation under sections sixty-nine to seventy-five, inclusive. 

G. L., c. 32, § 2 (4), provides, in part, as follows: — 

. . . and any member who reaches the age of seventy must so retire. 

This provision is explicit. I am accordingly of the opinion 
that inasmuch as the member in question applied for retire- 
ment because of age and service and not because of any 
disability, his retirement allowance should be figured from 
the date on which he should have automatically been re- 
moved from the service at the age of seventy years, in 
accordance with the statute [G. L., c. 32, § 2^(4)]. 



December 20. 



jay r. benton, attorney-general. 311 

Hawkers and Pedlers — Agents — License. 

Under the provisions of G. L., c. 101, §§ 13, 14 and 18, no one may peddle under 
a license except the person named therein. Accordingly, if a sale ia made 
by an agent or representative, he and not his principal must be licensed to 
make such sale. 

You request my opinion on the following question : — Si88k)nS°^" 

Labor and 

Industries. 

Is there any statutory provision which would permit any person to oecembei 
peddle under a hawker's and pedler's license other than the one to whom 
such license has been issued or transferred? 

G. L.,c. 101, § 13, defines hawkers and pedlers as follows: — 

Except as hereinafter expressly provided, the terms "hawker" and 
"pedler" as used in this chapter shall mean and include any person, either 
principal or agent, who goes from town to town or from place to place in 
the same town selling or bartering, or carrjang for sale or barter or ex- 
posing therefor, any goods, wares or merchandise, either on foot, on or 
from any animal or vehicle. 

G. L., c. 101, § 14, provides: — 

A hawker or pedler who sells or barters or carries for sale or barter or 
exposes therefor any goods, wares or merchandise, except as permitted 
by this chapter, shall forfeit not more than two hundred dollars, to be 
equally divided between the commonwealth and the town in which the 
offence was committed. 

G. L., c. 101, § 18, provides: — 

Articles other than those the sale of which is licensed, or permitted 
without a license, under the preceding section, and not prohibited by 
section sixteen, shall not be sold by hawkers or pedlers unless duly licensed 
as hereinafter provided. 

Any person who attempts to sell under a license "which 
has not been issued or transferred to him, or has in his 
possession another's license with intent to use the same" 
shall be punished as provided in section 31. 

The authority to grant hawker's and pedler's licenses is 



312 OPINIONS OF THE ATTORNEY-GENERAL. 

vested in the Director of Standards, in accordance with the 
provisions of G. L., c. 101, § 22, which is, in part, as follows: 

The director may grant a license to go about carrying for sale or barter, 
exposing therefor and seUing or bartering any goods, wares or merchan- 
dise, the sale of which is not prohibited by section sixteen, to any person 
who files in his office a certificate signed by the mayor or by a majoritj'' 
of the selectmen, stating that to the best of his or their knowledge and 
belief the applicant therein named is of good repute as to morals and 
integrity, and is, or has declared his intention to become, a citizen of the 
United States. 

This section discloses the safeguards employed in the 
selection of those individuals who are to be entrusted with 
such licenses. 

I am of the opinion that your question is answered by the 
express provisions of G. L., c. 101, § 13, wherein the Legis- 
lature, in defining hawker and pedler, has expressly in- 
cluded ''any person, either principal or agent." The 
intent of the Legislature to forbid any person to peddle 
under a hawker's and pedler's license other than the one 
to whom such license has been issued or transferred is 
clearly disclosed. G. L., c. 101, § 31. 

In Commonwealth v. Hana, 195 Mass. 262, at page 265, 
the court says : — 

The business of peddling furnishes such opportunities for the practice of 
fraud that it is a proper subject for legislative regulation. 

The language employed in the statute is unquestionably 
chosen in order to emphasize the fact that no one may peddle 
under a license except the person named therein. Accord- 
ingly, if a sale is made by an agent or representative, he 
and not his principal must be Hcensed to make such sale. 
See Commonwealth v. Reid, 175 Mass. 325; Commonwealth 
V. Ober, 12 Gush. 493. 

I accordingly answer your question m the negative. 



December 31. 



jay r. benton, attorney-general. 313 

Banks and Banking — Trust Companies — Increase 
OF Capital Stock — Amendment of Original 
Charter. 

a trust company incorporated prior to 1888 may, by adopting G. L., c. 172, §18, 
as provided in G. L., c. 172, § 3, increase its capital stock to any amount 
approved by the Commissioner of Banks, without the necessity of amending 
its original charter, even though that charter prohibited any increase of 
capital stock beyond $500,000. 

You request my opinion in regard to the B. M. C. Durfee ^°s8iJ,nfr°^' 
Trust Company of Fall River, Mass. You state that this ^''"1923 
trust company was incorporated under the provisions of St. 
1887, c. 85, and that it is now desirous of increasing its 
capital stock beyond the hmit of $500,000 imposed by section 
15 of that act. You request my opinion as to whether the 
adoption by this trust company of section 18 of G. L., c. 
172, as provided by section 3 of G. L., c. 172, will be sufficient 
to enable it to increase its capital stock beyond $500,000 
without the necessity of petitioning the Legislature for an 
amendment to its charter permitting this increase. 

The original general act for the regulation of safe deposit, 
loan and trust companies, St. 1888, c. 413, contained no 
provision by which trust companies incorporated previous 
to its passage might adopt the provisions contained therein. 
St. 1890, c. 315, § 2, however, provided: — 

Any incorporated trust company, or safe deposit and trust company, 
now transacting business in this Commonwealth and chartered by the 
legislature of this Commonwealth prior to the passage of chapter four 
hundred and thirteen of the acts of the year eighteen hundred and eighty- 
eight, may by vote of the majority of the stock represented at a special 
meeting of the stockholders legally called for the purpose accept and 
adopt as a part of their charters all the provisions of any one section or 
all the sections of said chapter four hundred and thirteen of the acts of 
the year eighteen hundred and eighty-eight; and thereafter shall have 
aU the powers and privileges and be subject to all the duties, liabilities 
and restrictions set forth in such section or sections as may be thus 
accepted and adopted: provided, that a certificate signed and sworn to 
by the clerk of such trust company, or safe deposit and trust company, 
setting forth the fact of such acceptance and adoption shall be filed with 



314 OPINIONS OF THE ATTORNEY-GENERAL. 

the secretary of the Commonwealth and with the board of commissioners 
of saving banks within ten days from the date of such special meeting. 

It is to be noted that this act provides that after adoption 
the trust company "thereafter shall have all the powers and 
privileges ... set forth in such sections as may be thus 
accepted and adopted." 

The language of St. 1890, c. 315, § 2, was considerably 
shortened at the time of its incorporation into the Revised 
Laws as section 2 of chapter 116, and later into the General 
Laws as section 3 of chapter 172. G. L., c. 172, § 3, reads 
as follows : — 

A trust company chartered before May twenty-eight, eighteen hundred 
and eighty-eight, transacting business in the commonwealth may adopt 
as a part of its chapter, or any provision thereof which under the pre- 
ceding section it may adopt, by a majority vote of the stock represented 
at a special meeting called for the purpose and by filing, within ten days 
from the date of such meeting, with the state secretary and with the 
commissioner a certificate sworn to bj'' the clerk of such corporation and 
stating such adoption. 

Despite this change of language, there seems, however, 
no reason to believe that any intention existed to change 
the force of St. 1890, c. 315, § 2, as regards the acquisition 
by a trust company, after adoption, of ''all the powers 
and privileges" set forth in the adopted sections. 

G. L., c. 172, § 18, is based upon R. L., c. 116, § 5, as 
modified by St. 1905, c. 189, and Gen. St. 1916, c. 37, and 
subsequent amendments thereto. R. L., c. 116, § 5, pro- 
vided that the capital stock of trust companies should not 
be more than one million dollars; St. 1905, c. 189, permitted 
a trust company, subject to the approval of the Board of 
Commissioners of Savings Banks, to increase its capital stock 
up to that maximum in the manner provided for business 
corporations; and Gen. St. 1916, c. 37, did away with the 
maximum limitation and provided that trust companies, 
subject to the approval of the Bank Commissioner, could 
increase their capital stock up to any amount by the same 



JAY R. BENTON, ATTORNEY-GENERAL. 315 

method as that authorized in St. 1905, c. 189. The pro- 
visions of G. L., c. 172, § 18, are as follows: — 

The capital stock of such corporation shall be not less than two hundred 
thousand dollars, except that in a city or town whose population numbers 
not more than one hundred thousand the capital stock may be not less 
than one hundred thousand dollars, divided into shares of the par value 
of one hundred dollars each; and except also that in towns whose popu- 
lation is not more than ten thousand the capital stock may be not less 
than fifty thousand dollars divided into shares of the par value of one 
hundred dollars each; and no business shall be transacted by the corpo- 
ration until the whole amount of its capital stock is subscribed for and 
actually paid in. Any such corporation may, subject to the approval 
of the commissioner, increase its capital stock in the manner provided 
by sections forty-one and forty-four of chapter one hundred and fifty- 
six. No stock shall be issued by any such corporation until the par value 
thereof shall be fully paid in in cash. Any such corporation may, subject 
to the approval of the commissioner, decrease its capital stock in the 
manner provided by said section forty-one and the first sentence of section 
forty-five of said chapter; provided, that the capital stock as so reduced 
shall not be less than the amount required by this section. 

It appears to me, from the above, that G. L., c. 172, § 3, 
read in the light of St. 1890, c. 315, § 2, permits a trust 
company incorporated prior to 1888 to secure the powers 
and privileges set forth in G. L., c. 172, § 18, even though 
inconsistent with a restriction contained in the original 
act of incorporation of such a trust company; that between 
1905 and 1916 one of the privileges and powers thus acquir- 
able would have been the power, subject to the approval of 
the Board of Commissioners of Saving Banks, to increase 
its capital stock up to one million dollars by the method 
provided for business corporations (now G. L., c. 156, §§41 
and 44) ; and that today one of those powers and privileges 
is the power to increase its capital stock by a similar method 
to any amount approved by the Commissioner of Banks. 

I am therefore led to the conclusion that the B. M. C. 
Durfee Trust Company can avoid the necessity of petitioning 
the Legislature for an amendment to its charter by the 
adoption of G. L., c. 172, § 18, as provided in G. L., c. 172, 
§ 3, and I accordingly answer your inquiry in the affirmative. 



316 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Com- 
missioner of 
Public Works. 

1924 
January 3. 



Structures in Great Ponds — License. 

A license is not required for a structure built in the waters of a great pond unless 
it is below the natural high-water mark. 

You request my opinion whether a Hcense is required for 
the erection of a structure in the waters of a great pond, 
the height of which has been raised several feet and the area 
of which has been increased by the lawful construction of 
a dam, the structure being above the natural high-water 
mark of the pond but below the maximum flow hne caused 
by the dam. 

G. L., c. 91, § 13, provides, in part: — 

The division may license any person ... to build and extend a wharf, 
pier or shore wall beloxo high water mark in said river, or to build or extend 
a wharf, pier, dam, wall, road, bridge or other structure, or to drive piles, 
fill land or excavate in or over the waters of any great pond below natural 
high water mark, or at or upon any outlet thereof, upon such terms as 
the division prescribes; . . . 

Section 19 of the act provides, in part: — 

Except as authorized by the general court and as provided in this 
chapter, no structure shall be built or extended, or piles driven or land 
filled, or other obstruction or encroachment made, in, over or upon the 
waters of any great pond below the natural high water mark; . . . 

The basis of this legislation is found in St. 1888, c. 318, 
§ 4, which provides that a Hcense may be issued to build a 
structure, etc., in any great pond ''below high-water mark," 
and in St. 1888, c. 318, § 2, which provides that except as 
authorized in the act no structure, etc., shall be built in any 
great pond "below the high-water mark thereof." 

In R. L., c. 96, §§ 15 and 18, which reenact St. 1888, c. 
318, §§ 2 and 4, the word "natural" was inserted, so that the 
law then read and now reads "below the natural high- 
water mark." That the insertion of the word "natural" 
was deliberate and not accidental is shown by the fact that 
both G. L., c. 91, § 13, and R. L., c. 96, § 18, which provide 



JAY R. BENTON, ATTORNEY-GENERAL. 317 

for licenses for structures in great ponds below the natural 
high-water mark, also provide for licenses for structures in 
the Connecticut River "below high-water mark." The 
original statute with respect to licenses for structures in 
the Connecticut River (St. 1885, c. 344, § 3) read ''below 
high-water mark," and this language has not been changed or 
amended. It is conceivable that the Legislature, in en- 
acting the sections referred to in the General Laws and 
Revised Laws, would, in the same sections, have inserted 
the word ''natural" with respect to great ponds and have 
failed to make the insertion with respect to the Connecticut 
River unless the insertion was deliberate and designed to 
change the existing law. 

I am therefore of the opinion that a license is not required 
for a structure built in the waters of a great pond unless it is 
below the natural high-water mark. 



Savings Banks — Sale of Travelers' Checks and 
Letters of Credit. 

A travelers' cheek or letter of credit is not a transmission of money or the equivalent 
thereof within the meaning of G. L., c. 168, § 33A. 

You request my opinion as to whether G. L., c. 168, § 33A, ^9 t^e com- 

^ "^ -^ ; 7 o 7 rnissioner of 

should be so construed as to permit the sale of travelers' ^^^24 
checks and letters of credit. Said section reads as follows : — • ■^'"^1^^ ^• 

Savings baiilcs may, under regulations made by the commissioner, re- 
ceive money for the purpose of transmitting the same, or equivalent 
thereof, to another state or country. 

In the broadest sense, and a sense often used by the courts, 
a letter of credit is any letter whereby the writer arranges 
for some other persons to obtain credit. 35 Harvard Law 
Review, 542. Daniel on Negotiable Instruments, vol. 2, 
6th ed., § 1790, says: — 

A letter of credit may be defined to be a letter of request whereby one 
person requests some other person to advance monej'^ or give credit to a 



318 OPINIONS OF THE ATTORNEY-GENERAL. 

third person, and promises that he will repay or guarantee the same to 
the person making the advancement, or accept bills drawn upon himself 
for the like amount. 

See also Leggett v. Levy, 233 Mo. 590; Krakauer v. Chapman, 
16 App. Div. 115. 

The primary purpose of the commercial letter of credit 
is to enable the shipper to receive his money upon shipment ; 
to enable the buyer to postpone actual payment until the 
goods have been received and resold; to enable a bank 
to lend its credit and not its funds; to utilize the goods as 
security in the meantime. 

A travelers' letter of credit is similar in principle to a 
commercial letter, but is made use of for facilitating a 
supply of money required by one going to a distance or 
abroad, and avoiding the risk and trouble of carrying specie 
or buying bills to a greater amount than may be required. 

A letter of credit is not drawn against any fund ; it is not 
payable absolutely but only in the event that the letter 
bearer may use it; it is optional with him. It is, as viewed 
from the standpoint of the bank, simply the lending of the 
bank's credit and not of its funds. 

Travelers' checks are used almost exclusively by travelers. 
They are generally for specific sums, and are in fact letters 
of credit which a banking house gives a traveler, and which 
are made available on presentation to any of the agents 
or correspondents of the house in a long list of names, the 
names both of the places and of the agents in them being 
usually stated in the instrument itself. They may be cashed 
only upon being countersigned by the person to whom they 
were issued, and ordinarily only in the presence of the person 
to whom they are presented for payment. It is the counter- 
signature by which the holder is identified in a strange 
place. If they are lost they are refunded. Like letters 
of credit, they may not be used; that is optional with the 
holder. He may return unused ones and be reimbursed. 
The check is simply a promise of the bank to pay in the 
event that it is presented and properly countersigned. 



JAY R. BENTON, ATTORNEY-GENERAL. 319 

James Sullivan v. Wilheim Kanuth, 220 N. Y. 216; Samburg 
V. American Express Co., 136 Mich. 639. 

In my opinion, a travelers' check or letter of credit is not 
a transmission of money or the equivalent thereof, within 
the meaning of the statute. 



Abolition of Grade Crossings — Right of Towns to 
A Refund from the Commonwealth for Interest 

PAID. 

St. 1914, c. 18, § 1, did not take away, as to grade crossing debts incurred prior 
thereto, the right of a town under St. 1908, c. 390, § 2, to a refund from the 
Commonwealth of the excess of the amount of interest paid by the town over 
the actual cost to the Commonwealth for money borrowed for the abolition 
of grade crossings. 

You have brought to my attention a communication T^eSurerand 
received by you from the treasurer and collector of taxes olnerai 
of the city of Somerville in regard to a claim of the city Januarys. 
of Somerville for refund of interest on account of grade 
crossing debts. 

You state that this claim is based upon the fact that the 
city of Somerville has paid interest at 4 per cent upon 
grade crossing debts incurred under St. 1908, c. 390, § 2, 
prior to the passage of St. 1914, c. 18, § 1, amounting in all 
to $18,774.95. This sum represents interest payments 
made since as well as before 1914, as the rate of 4 per cent 
was maintained unchanged even after 1914 as to all grade 
crossing debts incurred prior to that date. The city of 
Somerville now claims a refund, as provided for in St. 1908, 
c. 390, § 2, equal to the difference between the amount of 
interest at 4 per cent paid by it and ''the actual interest 
cost to the Commonwealth for money borrowed for the 
abolition of grade crossings. ..." 

Upon the above facts you request my opinion as to whether 
the city of Somerville has a valid claim at this time for a 
refund of overpayment of interest, and if so, "to what date 
shall the interest be figured." 

St. 1908, c. 390, § 2, reads, in part, as follows: — 



320 OPINIONS OF THE ATTORNEY-GENERAL. 

The court shall, from time to time, issue its decrees for payments on 
the part of the railroad corporation and on the part of any street railway 
company, not exceeding the amounts apportioned to them respectively 
by said auditor in his report, and for the payment by the commonwealth 
of a sum not exceeding the amounts apportioned to it and to the city or 
town; and such city or town shall repay to the commonwealth the amount 
apportioned to it, with interest thereon, payable annually at the rate of 
four per cent from the date of the acceptance of the report of the auditor. 
Such repayment of the principal shall be made annually in such amounts 
as the auditor of the commonwealth may designate; and the amount of 
payment designated for the year, with the interest due on the outstanding 
principal, shall be included by the treasurer and receiver general in the 
amount charged to such city or town, and shall be assessed upon it in the 
apportionment and assessment of its annual state tax. The treasurer 
and receiver general shall in each year notify such city or town of the 
amount of such assessment, which shall be paid by it into the treasury 
of the commonwealth as a part of, and at the time required for, the pay- 
ment of its state tax. When the final assessment on a city or town has 
been paid by it, the treasurer arid receiver general shall repay to it, in 
reduction of said final payment, the amount of interest, if any, which 
has been assessed to and paid by it in excess of the actual interest cost 
to the commonwealth for money borrowed for the abolition of grade 
crossings previous to the payment of said final assessment. 

St. 1914, c. 18, § 1, reads, in part, as follows: — 

Section thirty-nine of Part I of chapter four hundred and sixty-three 
of the acts of the year nineteen hundred and six, as amended by section 
two of chapter three hundred and ninety of the acts of the year nineteen 
hundred and eight, is hereby further amended by striking out the words 
"of four per cent," in the thirty-fifth line, and inserting in place thereof 
the words: — of interest determined by the auditor of the commonwealth 
as approximately that paid by the commonwealth on the last money 
borrowed for the abolition of grade crossings, — and by striking out the 
last sentence, so as to read as follows: — Section 39. . . . The court shall, 
from time to time, issue its decrees for payments on the part of the rail- 
road corporation and on the part of any street railway company, not ex- 
ceeding the amounts apportioned to them respectively, by said auditor 
in his report, and for the payment by the commonwealth of a sum not 
exceeding the amounts apportioned to it and to the city or town; and 
such city or town shall repay to the connnonwealth the amount appor- 
tioned to it, with interest thereon, payable annually at the rate of interest 
determined by the auditor of the commonwealth as approximately that 



JAY R. BENTON, ATTORNEY-GENERAL. 321 

paid by the commonwealth on the last money borrowed for the abolition 
of grade crossings, from the date of the acceptance of the report of the 
auditor. Such repayment of the principal shall be made annually in such 
amounts as the auditor of the commonwealth may designate; and the 
amount of payment designated for the year, with the interest due on 
the outstanding principal, shall be included by the treasurer and receiver 
general in the amount charged to such city or town, and shall be assessed 
upon it in the apportionment and assessment of its annual state tax. 
The treasurer and receiver general shall in each year notify such city or 
town of the amount of such assessment, which shall be paid by it into 
the treasury of the commonwealth as a part of, and at the time required 
for, the payment of its state tax. 

The effect of the amendment of 1914 was to repeal by 
imphcation so much of the former act as provided that the 
rate of interest to be paid by a city or town should be 4 
per cent, and that the excess of interest paid over actual 
interest cost should finally be refunded. Wilson v. Head, 
184 Mass. 515. The question is whether the amendment 
is applicable to grade crossing debts incurred prior to 
its enactment, on which interest was paid at the rate of 
4 per cent not only before but after 1914. 

Where a right to recover money is purely statutory it 
has been held to be extinguished by the repeal, without 
a saving clause, of that portion of the act which created it. 
Wilson V. Head, supra. There are analogous cases in the 
criminal law. Commonwealth v. Marshall, 11 Pick. 350. 
But the amendment we are considering struck out not only 
the right to repayment but also the requirement that the 
rate of interest to be paid should be 4 per cent. The 
substantial change made was to do away with the necessity 
of repayment by providing that the rate to be paid by the 
cities and towns should be determined by an approximation 
to that which the Commonwealth was obliged to pay. 
The natural inference is that the amendment was intended 
to apply only in cases where the rate of interest was to be 
determined as provided in the amendment, and was not 
intended to take away the right of refund where interest 
was paid under the prior statute at the flat 4 per cent rate. 



322 OPINIONS OF THE ATTORNEY-GENERAL. 

Furthermore, it seems that the amending act has consist- 
ently in practice been construed by those charged with the 
duty of carrying its provisions into effect as appUcable only 
to grade crossing debts incurred subsequent to its passage, 
since interest at the 4 per cent rate has uniformly been 
collected on debts which arose previously. This could 
only have been done on the theory that to such debts the 
amendment was not applicable. Commonwealth v. Parker, 
2 Pick. 550, 557; Tyler v. Treasurer and Receiver General, 
226 Mass. 306. It would seem, therefore, that the mutual 
obligations imposed upon the Commonwealth, on the one 
hand, and the towns, on the other, by St. 1908, c. 390, § 2, 
should be held to have survived the partial repeal of that 
act in 1914, provided this conclusion involves no violation 
of sound legal theory. 

When the town's share of a given grade crossing assess- 
ment was paid by the State under the provisions of St. 1908, 
c. 390, § 2, there arose a definite obligation, contractual 
in its nature, which, if not a true contract, was at least one 
of those obligations created either by the common law, 
under the impulse of equitable principles, or by statute, 
which are grouped under the generic name of quasi con- 
tractual obligations. This quasi debt, if it may be so 
termed, contained within itself the definition of its own 
incidents, namely, the duration, interest rate and rebate 
feature provided for in the statute. The right to a refund 
was no less inherent in it than any other feature. In 
fact, strictly, the interest rate may be said to have been 
"4 per cent minus a certain unascertained future rebate," 
rather than simply "4 per cent." In the absence, at least, 
of any expression of legislative intent to the contrary, there 
seems no reason why such a quasi debt, being an existing, 
definite obligation, should not survive the repeal of the 
statute under which it originally arose. 

In Steamship Co. v. Joliffe, 2 Wall. 450, the Supreme Court 
of the United States, in considering the right of a pilot to 
the compensation provided for in a statute that had been 



JAY R. BENTON, ATTORNEY-GENERAL. 323 

repealed after the performance of the services in question, 
said : — 

If the services are accepted, a contract is created between the master 
or owner of the vessel and the pUot, the terms of which, it is true, are 
fixed by the statute; but the transaction is not less a contract on that 
account. If the services tendered are declined, the half fees allowed are 
by way of compensation for the exertions and labor made by the pilot, 
. . . The transaction, in this latter case, between the pilot and the mas- 
ter or owner, cannot be strictly termed a contract, but it is a transaction 
to which the law attaches similar consequences; it is a guasi contract. . . . 

The claim of the plaintiff below for half-pilotage fees, resting upon a 
transaction regarded by the law as a quasi contract, there is no just ground 
for the position that it fell with the repeal of the statute under which the 
transaction was had. When a right has arisen upon a contract, or a 
transaction in the nature of a contract authorized by statute, and has 
been so far perfected that nothing remains to be done by the party as- 
serting it, the repeal of the statute does not affect it, or an action for its 
enforcement. It has become a vested right which stands independent 
of the statute. And such is the position of the claim of the plaintiff 
below in the present action: the pilotage services had been tendered by 
him; his claim to the compensation prescribed by the statute was then 
perfect, and the liability of the master or owner of the vessel had become 
fixed. 

And it is clear that the legislature did not intend by the repealing clause 
in the act of 1864, to impair the right to fees, which had arisen under the 
original act of 1861. 

In my opinion, this language is applicable to the present 
case; and in view of what I have already stated I believe 
to be the proper inference of legislative intent to be drawn 
from St. 1914, c. 18, § 1, I am of the opinion that the city 
of Somerville has a valid claim at this time for a refund of 
overpayment of interest, and that the amount due should 
be figured to the date of the payment by the city of Somer- 
ville of the final assessment. 



324 opinions of the attorney-general. 

Public Records — Certification of Copies — Secre- 
tary OF THE Commonwealth. 

Under G. L., c. 9, § 11, the precise form in which copies of public records shall 
be certified is within the discretion of the certifying officer, but the copies 
must be full, exact and literal: authentication by seal is impliedly authorized. 

Secretary. You pequest iiiy opinion as to whether you "have the right 

January 4. to Certify, Substantially in accordance with the form attached 
to your request, to a birth, marriage or death." 

G. L., c. 46, deals with the "Return and Registry of Births, 
Marriages and Deaths." Section 1 imposes upon each city 
or town clerk the duty "to receive or obtain and record" 
certain specified facts "relative to births, marriages and 
deaths in his town." Section 17 requires that certified 
copies of such records of births, marriages and deaths be 
transmitted periodically to the State Secretary. Section 
18 reads: — 

The state secretary shall require . . . copies transmitted under the 
preceding section to be written in a legible hand. 

Section 21 reads: — 

The state secretary shall cause the copies received by him for each 
year to be bound, with indexes thereto. He shall prepare from said 
copies such statistical tables as will be of practical utihty, and make 
annual report thereof to the general court. 

G. L., c. 66, deals with "Public Records." Public records 
are defined, in so far as is pertinent to the present inquiry, 
as follows : — 

Any written or printed book or paper . . . which any officer ... of 
the commonwealth or of a county, city or town ... is required to re- 
ceive for filing. — G. L., c. 4, § 7, par. 2Gth. 

Section 10 of G. L., c. 66, provides: — 

Every person having custody of any public records shall, at reasonable 
times, permit them to be inspected and examined by any person, under 



JAY R. BENTON, ATTORNEY-GENERAL. 325 

his supervision, and shall furnish copies thereof on payment of a reasonable 
fee. In towns such inspection and furnishing of copies may be regulated 
by ordinance or by-law. 

Section 7 of G. L., c. 66, reads, in part, as follows: — 

The state secretary, clerks of the county commissioners and city or 
town clerks shall respectively have the custody of all other public records 
of the commonwealth or of their respective counties, cities or towns, if 
no other disposition of such records is made by law or ordinance, and 
shall certify copies thereof. 

Finally, G. L., c. 9, § 11, provides: — 

The state secretary shall have the custody of the great seal of the com- 
monwealth; and copies of records and papers in his department, certified 
by him and authenticated by said seal, shall be evidence like the originals. 

It follows from the above : — • 

1. That the certified copies of the records of births, 
marriages and deaths filed pursuant to G. L., c. 46, with the 
State Secretary are public documents; 

2. That he is authorized to ''certify copies thereof"; and 

3. That such copies, when authenticated by the great seal 
of the Commonwealth, "shall be evidence hke the originals." 

In my opinion, the phrase "shall certify copies thereof" 
means shall make or cause to be made a full, exact and 
literal copy of the record in his possession, and shall append 
thereto a statement to the effect that such document is in 
fact a full, exact and literal copy of the original record. 
It is unnecessary to determine whether the phrase also 
connotes, as an additional requirement, the authentication 
of the document by affixing thereunto the official seal of the 
certifying officer; that is, in the case of the State Secretary, 
the seal of the Commonwealth. See Hartford Fire Ins. 
Co. V. Becton & Terrell, 103 Tex. 236; 125 S. W. 883. In 
any event, such authentication is not only sanctioned by 
well-nigh universal practice, but is impliedly authorized 
by the provision in G. L., c. 9, § 11, quoted above, as to the 
effect of such authentication by the State Secretary. 



326 



OPINIONS OF THE ATTORNEY-GENERAL. 



Within the hmits of the requirements set forth in the 
preceding paragraph, the precise form in which copies of 
public records shall be certified is within the discretion of 
the certifying officer. I see no reason to criticize adversely 
the form attached by you to your request, nor to doubt 
that you "have the right to certify, substantially in accord- 
ance with the form attached, to a birth, marriage or death." 
I accordingly answer your inquiry in the affirmative. 



Witness Fee — Expert Witnesses — Compulsory Pro- 
cess — State Officers and Employees — Compen- 
sation. 

The term "witness fee" applies to any sum of money paid to persons subject to 
compulsory process as compensation for testimony given at the trial of causes. 

Expert witnesses may in all cases be compelled to appear and testify to such opin- 
ions as they may have. Such witnesses cannot be compelled to make a previ- 
ous study of the case or of other testimony. 

State police officers and officers and employees of the Commonwealth receiving 
regular compensation therefrom may not receive any compensation for testi- 
fying in a cause in which the Commonwealth is a party. 

Such persons may receive from counties compensation for services which they 
are not by law compelled to render. 

Such persons may not receive from the Commonwealth compensation for special 
services unless such services are performed outside of usual working hours 
and are not required in the performance of their duties. 



To the District 
Attorney for 
the Eastern 
District. 
1924 
January 24. 



You request my opinion whether any of the persons des- 
ignated in G. L., c. 262, § 56, when called by the Common- 
wealth to give an expert opinion in the trial of cases upon 
matters outside their regular duties, may receive an expert 
fee from the county. 

G. L., c. 262, § 56, provides, in part: — 

A state police officer or an officer of the commonwealth whose salary 
is fixed by law, or any employee of the commonwealth receiving regular 
compensation therefrom, shall not he entitled to a witness fee before any 
court or trial justice in a cause in which the commonwealth is a party. . . . 

The act, in its scope and intent, is designed to prevent the 
payment of witness fees, when the Commonwealth is a 



JAY R. BENTON, ATTORNEY-GENERAL. 327 

party, to persons therein designated whose attendance 
and testimony at the trial of such causes can be secured by 
compulsory process. The term "witness fee," as there 
used, is not restricted to the statutory witness fee. It 
applies to any amount of money, whether less or more 
than the statutory fee, paid as compensation for, or in 
consideration of, testimony given at the trial of causes 
by persons who are subject to compulsory process. Any 
other construction would enable one to evade the law by 
the simple device of paying a sum in excess of the statutory 
witness fee. 

The answer to your inquiry depends upon the question 
whether persons who have no knowledge of the facts per- 
taining to the issues of a case and who have had no con- 
nection with it, but who, by reason of their special knowl- 
edge and training, may give an expert opinion based upon 
hypothetical questions, can be compelled to appear and 
testify. If compulsory process may issue for such persons, 
then the amount paid them for testifying is a witness fee 
within the purview of G. L., c. 266, § 56, and the persons 
designated in that section may not lawfully receive any 
compensation for so testifying. If, however, experts may 
not be compelled to appear and give expert opinions, the 
compensation paid them is not a witness fee. 

Authorities are divided upon the question whether 
experts, so called, are subject to compulsory process. Some 
of the earlier cases and some English cases hold that the 
special knowledge of a person is his property, which may 
not be taken from him without reasonable compensation, 
and that experts may therefore not be compelled to testify 
as to their opinions. See Webb v. Page, 1 Car. & K. 23 
(Eng.) ; Clark v. Gill, 1 Kay & J. 19 (Eng.) ; Beits v. Clifford, 
Warwick Lent Assizes, 1858 (Eng.); Re Working Men's 
Mut. Soc, L. R.,'21 Ch. Div. 831; In the Matter of Roelker, 
Fed. Cas. No. 11,995; United States v. Howe, Fed. Cas. No. 
15,404a; Buchman v. State, 59 Ind. 1; Dills v. State, 59 
Ind. 15. In Pennsylvania the rule seems to be that experts 



328 OPINIONS OF THE ATTORNEY-HENERAL. 

are subject to compulsory process in cases where the govern- 
ment is a party but not in causes between private Htigants. 
Pa. Co. for Insurances v. Philadelphia, 262 Pa. 439. The 
weight of authority, however, inchnes to the view that 
experts are treated Hke ordinary witnesses, that they can be 
compelled to appear in all cases and testify as to such 
opinions as they have, and that such compulsion is not 
a taking of their property. Barms v. Phaneuf, 166 Mass. 
123, 124; Stevens v. Worcester, 196 Mass. 45, 56; Ex Parte 
Dement, 53 Ala. 389, 393; Flinn v. Prairie County, 60 Ark. 
204, 227; People v. Conte, 17 Cal. App. 771, 784; Cotmty 
Com. V. Lee, 3 Colo. App. 177, 180; Dixon v. The State, 12 
Ga. App. 17; Dixon v. People, 168 111. 179; O'Day v. Crabb, 
269 111. 123, 132; Burnett v. Freeman, 125 Mo. App. 683; 
State V. Bell 212 Mo. Ill, 126; State v. Teipner, 36 Minn. 
535; Mai7i v. Sherman Co., 74 Neb. 155; People v. Mont- 
gomery, 13 Abb. Pr. Rep. (N. S.) 207, 238; Summers v. 
State, 5 Tex. App. 365, 377; Philler v. Waukesha Co., 139 
Wis. 211; Wigmore on Evidence (2nd ed.). Vol. IV, § 2203; 
Rogers on Expert Testimony (2nd ed.), § 188; 2 A. L. R. 
1576. 

In Stevens v. Worcester, 196 Mass. 45, 56, the court, in 
holding that a witness who had already testified to facts 
within his knowledge could be compelled to express an 
expert opinion, if he had one, said: — 

The auditor rightly ruled that the witness Eddy, being upon the stand, 
could be required to express an opinion, if he had one, and that he could 
not be compelled to study the case or perform labor in order to qualify 
him to express an opinion. As the witness had formed an opinion which 
he had committed to a paper which he had with him on the stand, the 
requirement that he should take the paper in his hand and examine it, 
to refresh his recollection, was not different in substance or legal effect 
from a requirement that he should use his mental faculties in listening 
to a question and in reflecting upon it, in order to give a proper answer. 
... It was not like a requirement that he should study a treatise on a 
scientific subject. 



JAY R. BENTON, ATTORNEY-GENERAL. 329 

In Barrus v. Phaneuf, 166 Mass. 123, 124, 125, the court, 
strongly intimating that it had power to compel attendance 
of expert witnesses, said : — 

We should be slow to admit that the court would be without power 
to require the attendance of a professional or skilled witness, upon a 
summons duly served, and with payment of the statutory fees, although 
he was unacquainted with the facts, and coukl testify only to opinions; 
but sucli power would hardly be exercised unless, in the opinion of the 
court, it was necessary for the purposes of justice. . . . Even in such 
case the court would probably be without the power to compel the wit- 
ness to make a study of the case beforehand, or to pay attention to the 
body of evidence introduced by the parties with a view to forming an 
opinion thereon. It would seem that one who is summoned as an expert 
would perform all that the court could require of him if he should hold 
himself in readiness to be called upon to testify to such opinions as he 
might have, when his turn should come. 

I am therefore of the opinion, in the light of the author- 
ities, that in this Commonwealth professional or skilled 
witnesses may, in the trial of all causes, be compelled to 
appear and give their expert opinions, if they have anj^, 
even though they have no knowledge of the facts pertaining 
to the issue involved and have had no connection with the 
case. It follows that State police officers, officers of the 
Commonwealth whose salaries are fixed by law, and em- 
ployees of the Commonwealth receiving regular compen- 
sation therefrom, may not receive any fee or compensation 
for testifying before any court or trial justice in a cause in 
which the Commonwealth is a party. 

In many cases, however, the testimony of an expert would 
be valueless if his opinion were not based upon some study 
of the case beforehand or upon some previous examination 
or observation of the defendant. In many cases where 
the defence is based upon insanity the prosecuting officer 
requires the assistance of a psychiatrist in the preparation 
of the case and in the examination of witnesses. Though 
an expert can be compelled to testify to such opinions as 
he may have when he is called to the stand, he cannot be 



330 OPINIONS OF THE ATTORNEY-GENERAL. 

compelled to make any previous study of the case or to 
render any assistance or even to listen to other testimony. 
In cases, therefore, which require preparation or prior 
study, or where assistance other than the mere testimony 
of the witness is desired, officers and employees of the 
Commonwealth designated in G. L., c. 262, § 56, may receive 
from counties compensation for services which they are 
not by law compelled to render. Such compensation is 
not a "witness fee" within the meaning of the act. 

Where such services are to be paid for from the treasury 
of the Commonwealth a different situation arises. G. L., 
c. 29, § 31, provides, in part, that "salaries payable by the 
commonwealth . . . shall be in full for all services rendered 
to the commonwealth by the persons to whom they are 
paid." That act prohibits a person, receiving a salary 
from the Commonwealth, from accepting any other com- 
pensation from the Commonwealth for any services rendered 
during the usual hours of employment in the salaried 
position which he occupies. Such person may not accept 
another salaried position from the Commonwealth, even 
though the work of the second office might be done outside 
of the usual hours of employment of the first office. See 
G. L., c. 30, § 21. He may, however, receive from the 
Commonwealth additional compensation for special services 
performed outside of the usual working hours of his position 
and not required in the performance of the duties of his 
position. See also, II Op. Atty. Gen. 21 and 309; V Op. 
Atty. Gen. 697, 698. 

Persons receiving salaries from the Commonwealth may, 
therefore, not receive any additional compensation from the 
treasury of the Commonwealth for special services rendered 
as experts, unless such services are performed outside of 
the usual working hours of their employment and are not 
required in the performance of the duties of the positions 
which they hold. 



jay r. benton, attorney-general. 331 

Constitutional Law — Liberty of Contract — Equal 
Protection of the Laws • — Boston Elevated Rail- 
way Company — Eastern ^Massachusetts Street 
Railway Company. 

Legislative power to secure the public safetj', health and morals canuot be con- 
tracted awaj\ 

Certain bills, if enacted, would be unconstitutional, for reasons stated. 

A bill forbidding the emplojonent of aliens by the Boston Elevated Railway Com- 
pany, if enacted, would be an infringement of libertj' of contract and arbi- 
trarily discriminatory and would therefore be unconstitutional. 

A bill requiring the Eastern Massachusetts Street Railway Company to maintain 
and keep in repair the portion of highways occupied by its tracks, if enacted, 
would be arbitrarily discriminatory, and therefore unconstitutional. 



resentatives. 

1924 
Januarv 25. 



On behalf of the committee on rules you have asked my HoiSe of Rep- 
opinion as to the constitutionaUty of several bills, now ""^TgH' 
pending before the committee, relating to the Boston 
Elevated Railway Company or to the Eastern IVIassa- 
chusetts Street Railwaj^ Company. 

In recent years the opinion of the Attorney-General has 
on several occasions been required on questions concerning 
the constitutionality of proposed laws relating to the man- 
agement and operation of those companies, and involving 
a consideration of the appUcation and effect of Spec. St. 
1918, c. 159, and Spec. St. 1918, c. 188. See VI Op. Atty. 
Gen., 146, 396; VII Op. 11. In these opinions the Attorney- 
General rules that the provisions in each of those statutes 
giving to the trustees the right to regulate and fix fares 
and to determine the character and extent of the service 
and facilities to be furnished constituted contracts between 
the Commonwealth and the companies concerned which 
could not be unpaired without violating their constitutional 
rights, and that a number of the bills submitted would, 
if enacted into law, be unconstitutional because they 
contained pro^dsions which would directly impair the 
contractual rights given by the two special statutes of 1918. 

With respect to Spec. St. 1918, c. 159, the court has held, 
in Boston v. Treasurer and Receiver General, 237 Mass. 403, 
413, that the statute, having been accepted by the Boston 



332 OPINIONS OF THE ATTORNEY-GENERAL. 

Elevated Railway Company, constitutes a binding agree- 
ment between the company and the Commonwealth, 
according to its terms, and that it is constitutional. The 
court points out that the terms of the act are contractual 
in their nature, as is plain not only from the general scope 
of the act but from the express provision, in section 18, that 
"the provisions which define the terms and conditions 
under which, during the period of public management and 
operation, the property owned, leased or operated by the 
Boston Elevated Railway Company shall be managed and 
operated by the said trustees, and the provisions of section 
thirteen, . . . shall constitute a contract binding upon 
the Commonwealth." 

But the right of the companies to insist that the con- 
tractual obligations of the Commonwealth with respect 
to the powers and duties of the trustees shall not be im- 
paired by new legislation is not violated by the legitimate 
exercise of legislative power in securing the public safety, 
health and morals, since the governmental power of self- 
protection cannot be contracted away. Neiv York & New 
England R.R. Co. v. Bristol, 151 U. S. 556, 567. The limits 
of this power of which the Legislature cannot divest itself 
are not clearly defined. It is not co-extensive with the 
pohce power of the State. The right to regulate fares of 
transportation companies may be affected by contract with 
the State. Stone v. Farmers' Loan & Trust Co., 116 U. S. 
307, 325; Minneapolis v. Minneapolis St. Ry. Co., 215 U. S. 
417; III Op. Atty. Gen. 396. An instructive discussion 
of the subject appears in New Orleans Gas Co. v. Louisiana 
Light Co., 115 U. S. 650, 660-673. 

I will now state my opinion in regard to the specific bills 
which you have submitted. 

1. Petition that the Boston Elevated Railway Company be 
prohibited from employing aliens while under the period of 
public management and control. 

The bill accompanying the petition is as follows : — 



JAY R. BENTON, ATTORNEY-GENERAL. 333 

An Act forbidding the Employment of Aliens by the Boston 
Elevated Railway Company. 

Section 1. No person shall be employed by the Boston Elevated 
Railway Company during the period while under the public management 
and control provided by chapter one hundred and fifty-nine of the Special 
Acts of nineteen hundred and eighteen, who is not a citizen of the United 
States. 

Section 2. This act shall not apply to the emplojanent of anj^ alien 
who at the time of its passage is in the service of such company, provided 
that such alien makes the primary declaration of intention to become a 
citizen of the United States within ninety days thereafter. 

The right to purchase or to sell labor is part of the liberty 
of contract protected by the Fourteenth Amendment to 
the Constitution of the United States, which cannot be 
interfered with by a State beyond the limits of reasonable 
regulation, in the exercise of its police power. The amend- 
ment protects the right of the employer as well as of the 
employee, and the employer is equally entitled to rely upon 
its provisions. Lochner v. New York, 198 U. S. 45, 53; 
Adair v. United States, 208 U. S. 161, 173-175; Coppacje v. 
Kansas, 236 U. S. 1, 14; Adkins v. Children's Hospital, 261 
U. S. 525, 545; Opinion of the Justices, 208 Mass. 619; 
Opinion of the Justices, 220 Mass. 627; Commomvealih v. 
Boston & Maine R.R., 222 Mass. 206; Bogni v. Perotti, 
224 Mass. 152. 

A statute prohibiting the employment of aliens in common 
occupations has been held to be repugnant to the Fourteenth 
Amendment, under which an alien who is lawfully an in- 
habitant of a State is entitled to the equal protection of its 
laws. Truax v. Raich, 239 U. S. 33; cf. Opinion of the 
Justices, 207 Mass. 601. 

Statutes providing for the giving of preference to citizens 
of States and for discrimination against aliens in employ- 
ment on public works by a State or a political subdivision 
thereof have been held to be constitutional, by application 
of the principle that a State, having control of its own 
affairs, has the right to prescribe the conditions upon which 
it will permit public work to be done on its behalf or on 



334 OPINIONS OF THE ATTORNEY-GENERAL. 

behalf of its municipalities. Heim v. McCall, 239 U. S. 
175, 191-193; Crane v. New York, 239 U. S. 195; Lee v. 
Lynn, 223 Mass. 109. 

The Boston Elevated Railway Company, however, is not 
a governmental subdivision of the State; it is only a public 
service corporation. To such corporations the protection 
of the Fourteenth Amendment in respect to the employment 
of labor was extended in several of the cases cited above. 
It is my opinion that the proposed law, if enacted, would be 
unconstitutional because it would deprive the railway com- 
pany, and aliens employed or seeking employment by it, 
of that liberty of contract with respect to labor, which is 
protected by the Fourteenth Amendment. 

The proposed law, in my judgment, is objectionable, also, 
because it applies to the Boston Elevated Railway Company 
alone, and is arbitrarily discriminatory, and denies to that 
corporation the equal protection of the laws, in violation of 
the Fourteenth Amendment. Legislation applicable to a par- 
ticular class will be sustained if a reasonable basis for the 
distinction can be found; but it will not be sustained where 
the distinction or discrimination is purely arbitrary. Classi- 
fications and distinctions must be based upon some sound 
reason. Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 
558-560; Interriational Harvester Co. v. Missouri, 234 U. S. 
199,210-215; Truax v. Raich, 239 V. S. S^, 39^3; Tanner 
V. Little, 240 U. S. 369; Hall v. Geiger-Jones Co., 242 U. S. 
539, 555-557; Buchanan v. Warley, 245 U. S. 60, 73-81; 
Commonwealth v. Interstate, etc., St. Ry. Co., 187 Mass. 436, 
438, 439; Commonwealth v. Hana, 195 Mass. 262, 266-268; 
Commonwealth v. Titcomb, 229 Mass. 14; Massachusetts 
General Hospital v. Belmont, 233 Mass. 190, 200-202; 
V Op. Atty. Gen. 56. Where a statute is directed against 
a particular corporation it may still be justified as founded 
upon a reasonable classification, and so not in violation 
of the right to equal protection of the laws. Railroad Co. 
V. Richmond, 96 U. S. 521, 529. It is sometimes supported 
as an exercise of the power to amend the charter of the 



JAY R. BENTON, ATTORNEY-GENERAL, 335 

corporation. New York & New England R.R. Co. v. Bristol, 
151 U. S. 556, 567; Selectmen of Brookline, petitioners, 236 
Mass. 260, 270-272; of. Prudential Ins. Co. v. Cheek, 259 
U. S. 530, 536, 544. But such a statute will be held to be 
unconstitutional if the selection is arbitrary and unreason- 
able. Cotting v. Kansas City Stock Yards Co., 183 U. S. 
79, 102-112. See, also, McLean v. Arkansas, 211 U. S. 
539, 551. In my opinion, to single out the Boston Elevated 
Railway Company and apply to it a regulation prohibiting 
the employment of aliens would, on its face, be unfair and 
arbitrary, and would violate the company's constitutional 
rights. 

The measure seems to be objectionable for the additional 
reason that it is an impairment of the company's con- 
tractual right, given by Spec. St. 1918, c. 159, to have its 
property managed and operated by the trustees, not justified 
as a reasonable exercise of the power of the State to secure 
the health, morals or safety of its people. Proper man- 
agement and operation of the road might be seriously 
interfered with by such a regulation. On this account, 
also, I must hold the proposed law to be unconstitutional. 

2. Petition that the board of trustees of the Boston Elevated 
Railway Company be required to advertise for bids on certain 
contracts. 

The bill accompanying the petition is as follows : — 

An Act requiring the Board of Trustees of the Boston Elevated 

Railway Company to publicly advertise for Bids on Certain 

Contracts. 

The board of trustees of the Boston Elevated Railway Company shall 

advertise in two or more daily newspapers published in Boston for sealed 

proposals for all construction work or materials involving an expense of 

more than . . . dollars, stating the time and place for opening such 

proposals ,and reserving the right to reject any and all proposals. At 

the time and place advertised for the opening of proposals all bona fide 

bidders shall be admitted. 

Whether a general statute requiring street railway com- 
panies to advertise for bids for construction work or materials 



336 OPINIONS OF THE ATTORNEY-GENERAL. 

would be unconstitutional, as an unwarranted interference 
with the right of such corporations to make contracts and 
carry on their business, as formulated and defined in cases 
already cited, need not now be determined. See Prudential 
Ins. Co. V. Cheek, 259 U. S. 530. In my opinion, the pro- 
posed law would be unconstitutional because in its particular 
application to the Boston Elevated Railway Company it 
imposes upon that corporation a burden not borne by other 
corporations of a similar class, and therefore denies to it 
the equal protection of the laws; and also because such a 
provision would be in violation of the contractual right, 
with respect to the management and operation of the com- 
pany's property, established by Spec. St. 1918, c. 159. 

3. Petition that the Boston Elevated Railway Company be 
directed to remove the subway entrances and exits at Scollay 
Square and Adams Square in the city of Boston. 

The bill accompanjdng the petition is as follows: — 

An Act to compel the Boston Elevated Railway Company to 

abolish the present entrances and exits to the scollay 

Square and Adams Square Subway Stations. 

The Boston elevated railway company is hei'eby directed to remove 

on or before January 1, 1925, the present subway entrances and exits 

at Scollay Square and Adams Square in the city of Boston. 

This legislation is apparently proposed as an exercise 
of the power to enforce regulations to secure the public 
safety, which in other cases has been held valid. New York 
& New England R.R. Co. v. Bristol, 151 U. S. 556; Baltimore 
V. Baltimore Trust Co., 166 U. S. 673; New Orleans Gas Co. 
V. Drainage Commission, 197 U. S. 453; Northern Pacific 
Ry. Co. V. Duluth, 208 U. S. 583; Denver & R. G. R.R. Co. 
V. Denver, 250 U. S. 241. Whether it is required for that 
reason is for the General Court to determine. If, however, 
the Boston Elevated Railway Company has no title or 
right in the premises giving it the power to remove the sub- 
way entrances and exits referred to in the bill, obviously 
it cannot be compelled by the Legislature to effect such 



JAY R. BENTON, ATTORNEY-GENERAL. 337 

removal. I had supposed that the title to these entrances 
and exists was in the city of Boston, and that the Boston 
Elevated Railway Company had no right which would 
entitle it to act. As to that question I am not sufficiently 
advised to give an authoritative opinion. 

4. Petition that the Boston Elevated Railway Company 
he directed to maintain toilets in the stations of the company. 

The bill accompanying the petition is as follows : — 

An Act directing the Boston Elevated Railway Company to main- 
tain Toilets in the Stations of the Company. 
The Boston elevated railway company shall keep and maintain reason- 
able toilet facilities for both men and women on all stations maintained 
by said railway company which shall be kept open at all times, that said 
railway station is kept open, for the convenience of its patrons. 

The questions presented by this bill are similar to those 
presented by the bill last considered. Some' such pro- 
vision may be supported as a health measure, the need for 
which may be found by the General Court to justify the 
regulation. Whether the company has sufficient control 
of the premises occupied by its stations to be able to carry 
out the requirements of the bill is a matter about which I 
am not advised. I would suggest, also, that the meaning 
of the word ''station" is somewhat indefinite, and that it 
might be construed to extend to any structure maintained 
for the protection of passengers while waiting for the com- 
pany's cars. 

5. Petition that the Eastern Massachusetts Street Railway 
Company be compelled to maintain a^id keep in repair the 
portion of highways occupied by its tracks. 

The bill accompanying the petition is as follows : — 

An Act to compel the Eastern Massachusetts Street Railway 
Company to maintain and keep in Repair the Portion of High- 
ways OCCUPIED BY ITS TRACKS. 

Section 1. During the period of public operation of the Eastern 
Massachusetts Street Railway Company under the provisions of chapter 
one hundred and eighty-eight of the Special Acts of nineteen hundred 



338 OPINIONS OF THE ATTORNEY-GENERAL. 

and eighteen and acts in amendment thereof and supplementary thereto, 
the Eastern Massachusetts Street Railway Company shall keep in repair 
to the satisfaction of the superintendent of streets, street commissioners, 
' road commissioners or surveyors of highways, or the division of highways 

of the department of public works, in the case of state highways, or the 
metropolitan district commission, in the case of metropolitan boulevards, 
the paving, upper planking or other surface material of the portions of 
streets, roads and bridges occupied by its tracks; and if such tracks occupy 
unpaved streets or roads, shall, in addition, so keep in repair eighteen 
inches on each side of the portion occupied by its tracks, and shall be 
liable for any loss or injury that any person may sustain by reason of the 
carelessness, negligence, management and use of its tracks. 

Section 2. When a party upon the trial of an action recovers dam- 
ages of the commonwealth or of a city or town for an injury caused to his 
person or property by a defect in a street, highway or bridge occupied 
by the tracks of said company, if said company is liable for such damages, 
and has had reasonable notice to defend the action, the commonwealth, 
city or town may recover of the said company, in addition to the damages, 
all costs of both plaintiff and defendant in the action. 

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

My opinion was asked last year regarding the consti- 
tutionality of a measure, in some respects similar, relating 
to the Boston Elevated Railway Company. (VII Op. 
Atty. Gen. 11.) In response to that request I stated my 
opinion to be that the bill, if enacted into law, would be 
constitutional, and an act was passed (St. 1923, c. 358) 
substantially identical with the bill which was referred to 
me. 

As I pointed out in that opinion, St. 1897, c. 500, amending 
the charter of the Boston Elevated Railway Company, 
contained in section 10 a provision, in substance, that for 
a period of twenty-five years the company should not be 
subjected to taxes or excises not then in fact imposed upon 
street railways, with an exception not now material, nor 
any other burden, duty or obligation not imposed by general 
law on all street railway companies, but during that period 
should pay taxes imposed by general law as if it were a 
street railway company, and also an additional tax; and 
this provision was always regarded as a contract between 



JAY R. BENTON, ATTORNEY-GENERAL. 339 

the State and the company. At the time this statute was 
enacted street railway companies were required to keep 
in repair the portions of streets and bridges occupied by 
their tracks; but in the following year, by St. 1898, c. 578 
(see G. L., c. 63, §§ 61-66), that obligation was discontinued, 
and the companies were required instead to pay an additional 
excise tax for the benefit of municipalities in which they 
were operating, to be applied to the construction, repair 
and maintenance of public ways. The Boston Elevated 
Railway Company was excepted from the operation of the 
act, doubtless because of the contract contained in St. 
1897, c. 500, § 10, relieving it, for the period named, of the 
burden of taxes imposed by subsequent legislation. The 
proposed law seemed to me to violate no right given or 
protected by Spec. St. 1918, c. 159, and to be otherwise 
free from constitutional objection, because it merely con- 
tinued the obligation under which the Boston Elevated 
Railway Company had operated for many years, and 
continued, also, the exemption of that company from 
liability to pay those taxes which in the case of other com- 
panies had been substituted for the obligation to keep in 
repair. 

The Eastern Massachusetts Street Railway Company was 
organized under Spec. St. 1918, c. 188, with all the powers 
and privileges of a street railway company organized under 
general laws, so far as applicable. Section 20 of said act 
provides, in part, as follows : — 



The new company, during the continuance of the war and for a period 
of two years thereafter, shall not be required, except with the express 
approval of the pubhc service commission after a hearing, to pay any 
part of the expense of the construction, alteration, maintenance or repair 
of any street, highway or bridge or any structure maintained or placed 
therein or thereon, or of the abolition of any grade crossing or the re- 
moval of wires from the surface of any street or highway to an under- 
ground conduit or other receptacle, and shall not, without such approval, 
be required directly or indirectly to make any payment or incur any ex- 
pense whatsoever for or in connection with the construction, alteration, 



340 OPINIONS OF THE ATTORNEY-GENERAL. 

maintenance or repair of any street, highway or bridge, or the abolition 
of any grade crossing or the removal of wires: . . . 

In my opinion of last year I stated my view to be that the 
law then under consideration violated no rights given or 
protected by Spec. St. 1918, c. 159. In my judgment, 
it is even more clear that the proposed law, as to which you 
have asked my opinion, violates no rights given or protected 
by Spec. St. 1918, c. 188. There is, however, a much more 
serious question whether the proposed law, if enacted, 
would not be so arbitrarily and unreasonably discriminatory 
as to violate the company's constitutional rights. The 
Eastern Massachusetts Street Railway Company has always 
been and now is subject to the excise tax first laid by St. 
1898, c. 578, the object of which is to recompense mu- 
nicipalities, either wholly or in part, for the expense of the 
construction, maintenance and repair of public ways through 
which their hues run. The bill does not purport to free 
the Eastern Massachusetts Street Railway Company from 
that burden; but that company is singled out as one which 
is to be required not only to pay the tax imposed for the 
purpose of providing funds for the repair of roads, as I 
have explained, but also to keep in repair a portion of those 
ways. Unless there is some reasonable basis for this 
discrimination the bill cannot be sustained. No reasonable 
ground is apparent to me. On the face of the bill as it 
appears before me I must therefore advise you that, in my 
opinion, it would be unconstitutional if enacted. 



jay r. benton, attorney-general. 341 

Veteran — Settlement — "Actually resided." 

Under St. 1922, c. 177, the place of settlement of a person inducted into the mili- 
tary forces of the United States under the Federal Selective Service Act is 
the place where he "actually resided" or was living at the time of his induc- 
tion, as distinguished from the place of legal residence or domicil. 

You request my opinion in regard to the legal settlement m?ssioner°of 
of a discharged veteran of the World War upon the basis Pensions. ^" 

. . . 1924 

of the following facts: A man who had a derivative settle- January 25. 
ment in Lynn, through his mother, moved with his family 
to Marlborough on December 29, 1915. In 1917 he deserted 
his family and w^ent to West Springfield Street, Boston, to 
live. While living at 232 West Springfield Street, Boston, 
he enrolled for the draft and was inducted at Boston, July 
22, 1918, giving at that time as his residence 573 Essex 
Street, Lynn, Mass. For three or four days prior to his 
induction he was visiting his brother in Lynn at that address. 
On July 18, 1918, four days prior to the date of his induction, 
he was living (according to the statement of the Marlborough 
overseers) in Boston. On November 23, 1918, he was 
honorably discharged from the service. His family have 
remained at all times in Marlborough. 

On the basis of the above facts you request my opinion 
as to whether, under St. 1922, c. 177, he acquired a military 
settlement at: 

(1) The place at which he was visiting his brother at the 
time of his induction into the military service, and which 
he gave as his residence at that time, i.e., Lynn; or 

(2) The place of residence of his wife and children since 
1915, i.e., Marlborough; 

(3) ''The actual place of his residence at the time of en- 
rollment for the draft and . . . from which he was in- 
ducted," i.e., Boston. 

That portion of St. 1922, c. 177, appUcable to the present 
situation reads as follows : — 

Any person who was inducted into the military or naval forces of the 
United States under the federal selective service act, . . . whether he 
served as a part of the quota of the commonwealth or not, . . . shall be 



342 OPINIONS OF THE ATTORNEY-GENERAL. 

deemed to have acquired a settlement in the place where he actually 
resided in this commonwealth at the time of his induction or enlistment. 

The settlement of the soldier in question was, therefore, 
the "place where he actually resided in this commonwealth 
at the time of his induction." The question presented is 
as to the proper construction of the words ''actually resided." 

It is well settled that the word "resided," as used in 
statutes relative to the acquisition of a settlement in this 
Commonwealth, means, "domiciled." Stoughton v. Cam- 
bridge, 165 Mass. 251; Palmer v. Hampden, 182 Mass. 511; 
Whately v. Hatfield, 196 Mass. 393. 

In my opinion, however, the phrase "actually resided" 
connotes something different from legal residence, in the 
strict sense of domicil. 

The phrase "actually resided" first appears in the present 
connection in St. 1870, c. 392, § 3. St. 1865, c. 230, conferred 
a settlement upon a soldier who had been enlisted and 
mustered as a part of the quota of a town, who was an in- 
habitant of that town and had resided therein six months 
before his enlistment. St. 1868, c. 328, struck out the 
requirement that the soldier should have been a resident 
of the town for six months. St. 1870, c. 392, § 3, struck out 
the requirement that the soldier should have been an in- 
habitant of the town of whose quota he formed a part. 
Section 5 of the same act provided that any person who 
would otherwise be entitled to a settlement under the third 
section of the act, but who was not a part of the quota of 
any city or town, should, if he served as a part of the quota 
of the Commonwealth, "be deemed to have acquired a 
settlement in the city or town where he actually resided 
at the time of his enlistment." As is pointed out in Brockton 
v. Uxbridge, 138 Mass. 292, 296, in striking out the need for 
inhabitancy in the town of whose quota the soldier formed 
a part, section 3 of St. 1870, c. 392, proceeded upon the 
theory that the town received the benefit of his military 
services and should therefore bear the burden of his military 



JAY R. BENTON, ATTORNEY-GENERAL. 343 

settlement, even though he was not an inhabitant; that is, 
even though he was not legally domiciled in that town or, 
presumably, even within the Commonwealth. By similar 
reasoning the fifth section of the act may be presumed to 
have gone on the theory that if the Commonwealth received 
the benefit of his military services some town within the 
Commonwealth should bear the burden of his military 
settlement, even though he was legally domiciled outside 
of Massachusetts; and that the proper town upon which 
to impose this burden was the one in which the soldier had 
"actually resided" at the time of his enlistment. 

In 1919 the Legislature inserted into the law as it then 
stood a provision in regard to the military settlement of 
soldiers inducted into the military service of the United 
States during the World War (Gen. St. 1919, c. 333, § 5). 
In so doing, the phrase "actually resided" was again em- 
ployed. It is to be presumed that that phrase, as applied 
in the act of 1919 to soldiers inducted under the draft, had 
the same significance that it had in the existing law as ap- 
plied to soldiers who voluntarily enlisted. The provision as 
to the settlement of soldiers inducted under the draft during 
the World War was re-enacted, with minor modifications, 
as G. L., c. 116, § 1, par. 5; and finally as St. 1922, c. 177. 
As has been stated above, it is the true meaning of the phrase 
"actually resided," in this act, that is the subject of the 
present inquiry. 

In addition to the reason, supplied by a study of its legis- 
lative history, for believing that the phrase "actually 
resided" means something other than "was domiciled," 
that belief is supported by a number of cases which dis- 
tinguish between the conception of "actual residence," 
on the one hand, and "legal residence" or "domicil," on 
the other. Bradley v. Frazer, 54 la. 289 ; Tipton v. Tipton, 
87 Ky. 243; Fitzgerald v. Arel, 63 la. 104; In re Brannock, 
131 Fed. 819; Michael v. Michael, 34 Tex. Civil App. 630. 
See, also, Martin v. Gardner, 240 Mass. 350, and cases cited 
at the foot of page 353. 



344 OPINIONS OF THE ATTORNEY-GENERAL. 

In my opinion, "actually resided" is used in St. 1922, c. 
177, in contrast, on the one hand, to legal residence, i.e., 
domicil; and on the other, to the situation suggested by 
such phrases as "temporarily sojourning," "merely visiting," 
etc., i.e., mere physical presence. It means the place in 
which at the time of his enlistment the soldier was actually 
living, in contradistinction to the place in which he merely 
happened to be; and apart from any question of his in- 
tentions as to the future. 

Applying this interpretation of the phrase "actually 
resided" to the facts supplied by you, it seems clear that the 
soldier in question acquired a legal settlement in Boston 
at the time of his induction into the military service. The 
question is, of course, purely one of fact in each instance. 
Treating, however, as I must, the case put by you as one to 
be determined upon the facts as stated, no other conclusion 
seems possible in view of the statements that the soldier 
"went to West Springfield Street, Boston, to live"; that 
"while living at 232 West Springfield Street, Boston, he 
enrolled for the draft and was inducted at Boston, July 22, 
1918"; that he was merely "visiting his brother ... in 
Lynn three or four days prior to his induction"; and that 
"Boston (was) the actual place of his residence at the time 
of enrollment for draft." 



Savings Banks — Dividends. 

A savings bank is not required, even if its earnings are sufficient, to pay a regular 
dividend of five per cent. 

mtsskTnM"^" You request my opinion on this question: Should not a 

"^"1924 savings bank be obliged to pay regular dividends out of 

— ^ ■ current earnings for a period of twelve months, up to the 

five per cent limitation, before it can pay an extra dividend 

or permit the profit and loss and guaranty fund to exceed 

ten and one-quarter per cent? 

G. L., c. 168, § 47, provides :— 



JAY R. BENTON, ATTORNEY-GENERAL. 345 

The income of such corporation, after deducting the reasonable ex- 
penses incurred in the management thereof, the taxes paid, and the 
amount set apart for the guaranty fund, shall be divided among its de- 
positors, or their legal representatives, at times fixed by its by-laws, in 
the following manner: an ordinary dividend shall be declared every six 
months from income which has been earned, and which has been collected 
during the six months next preceding the date of the dividend, except 
that there may be appropriated from the earnings remaining undivided 
after declaration of the preceding semi-annual dividend an amount suffi- 
cient to declare an ordinary dividend at a rate not in excess thereof; but 
the total dividends declared during any twelve months shall not exceed 
the net income of the corporation actually collected during such period, 
except upon written approval of the commissioner. Dividends may be 
declared oftener than every six months as provided in section seventeen 
of chapter one hundred and sixty-seven. . . . Ordinary dividends shall 
not exceed the rate of five per cent a year. No ordinary dividend shall 
be declared or paid except as above provided, . . . 

G. L., c. 168, § 50, provides: — 

Whenever the guaranty fund and undivided net profits together 
amount to ten and one quarter per cent of the deposits after an ordinary 
dividend is declared, an extra dividend of not less than one quarter of 
one per cent shall be declared on all amounts which have been on deposit 
for the six months, or not less than one eighth of one per cent on all 
amounts which have been on deposit, for the three months, preceding 
the date of such dividend, and such extra dividend shall be paid on the 
day on which the ordinary dividend is paid; but in no case shall the 
payment of an extra dividend as herein provided reduce the guaranty 
fund and undivided profits together to less than ten per cent of the de- 
posits. 

In my opinion, the meaning of these two sections, so far 
as pertinent to your inquiry, is as follows: A savings bank 
may not declare an "extra" dividend in addition to an 
"ordinary" dividend unless its guaranty fund plus its un- 
divided net profits, after deducting the amount of the 
ordinary dividend, amounts at least to ten and one-quarter 
per cent, and exceeds ten per cent by at least the amount 
of the proposed extra dividend. In other words, a savings 
bank is not authorized to declare a one-half per cent extra 
dividend unless, after deducting the amount of the "ordi- 



346 OPINIONS OF THE ATTORNEY-GENERAL. 

nary" dividend declared by it, its guaranty fund plus un- 
divided net profits equals ten and one-half per cent of its 
deposits. 

There is nothing in the various changes and modifications 
of G. S., c. 57, § 147, and St. 1876, c. 203, §§ 14 and 16, 
which have resulted in G. L., c. 168, §§ 47 and 50, nor in 
the present wording of that act, to suggest that a savings 
bank which, for example, in a given period has made a net 
profit of four and one-half per cent, and which has on hand 
its full five per cent guaranty fund and five per cent net 
profits in addition, is compelled to declare a four and one- 
half per cent "ordinary" dividend or is prohibited from 
declaring instead an ''ordinary" dividend of four per cent 
followed by an "extra" dividend of one-half per cent. 

I am therefore constrained to answer the question pro- 
pounded by you in the negative. 



School Pupils — Transportation — Classification of 
Pupils entitled to Reduced Fare on Street Rail- 
ways. 

With the exception of pupils in private schools and colleges which furnish a more 
advanced form of education than the equivalent of a public high school course, 
and pupils of a single class conducted independently without reference to 
other groups or classes having a common management, pupils who attend the 
public schools or private schools whose curriculum is similarly limited and 
pupils of vocational schools subject to G. L., c. 74, are entitled to the special 
rate of fare on street or elevated railways provided by G. L., c. 161, § 108. 

mi8sU)n^r°.^' You rcquest my opinion upon certain matters relating 

Education. ^^ ^-^Q trausportatlou of school pupils under the provisions 

January 31. of G. L., C. 161, § 108. 

Under the provisions of the statutes prior to St. 1906, c. 
479, the requirement of a half fare rate on street railways 
had been applied by the Legislature only as to pupils of 
the public schools. This was extended by the said chapter 
to include the pupils of private schools as well. 

In the case of Commonwealth v. Connecticut Valley St. Ry. 



JAY R. BENTON, ATTORNEY-GENERAL. 347 

Co., 196 Mass. 309, decided in 1907, the Supreme Court 
construed the meaning of the word "pupils," as used in the 
statute of 1906, with relation to other provisions of the laws 
then in force, and determined that the meaning of the 
word "pupils," as used in the statute, with relation to public 
and private schools, was confined to the children and youths 
who attended the public day schools, including the high 
schools, set forth in R. L., c. 42, §§ 1, 2, 4 and 8 (now G. L., 
c. 71, §§ 1-5), and private schools which corresponded in 
their educational scope with such public day and high 
schools. Colleges, technical and professional schools of 
more advanced learning were said by the court not to be 
within the contemplation of the act. 

The limitations upon the subjects to be taught in the 
most advanced of the public schools are set forth now in 
G. L., c. 71, §§ 1-5, substantially as they were at the time 
of the court's decision as to R. L., c. 42, § 1, and only private 
schools whose curriculum is similarly limited come within 
the purview of G. L., c. 161, § 108. If a private secondary 
school furnishes no more advanced educational facilities 
than those which are substantially the equivalent of the 
training provided by the public high schools, its pupils 
will be entitled to the lower rate of fare set forth in the 
statute. The pupils of a college, which presumably furnishes 
a more advanced form of education than the equivalent 
of a high school course, will not be entitled to the lower 
rate of fare. 

St. 1910, c. 567, added to the school pupils enumerated 
in preceding statutes, who were to be carried at a lower 
rate of fare than other passengers, those of "industrial day 
or evening schools organized under the provisions of chapter 
five hundred and five of the acts of the year nineteen hundred 
and six and acts in amendment thereof," and the present 
act has substituted for this latter designation that of pupils 
of "vocational schools subject to chapter seventy-four of 
the General Laws." 

Chapter 74, under the heading "Vocational Schools," 



348 OPINIONS OF THE ATTORNEY-GENERAL. 

section 1, defines "vocational education" as "education of 
which the primary purpose is to fit pupils for profitable 
employment." It further defines "agricultural education," 
"industrial education" and "household arts education" as 
forms of vocational education. It would follow, then, that 
a pupil in any school provided for by chapter 74 and devoted 
to agricultural, industrial or household arts education, 
was a pupil of a vocational school within the meaning of 
G. L., c. 161, § 108, and was entitled to the advantages of 
the requirement as to lower fares. 

An "independent household arts school," provided for 
by chapter 74, is defined in the first section of the chapter as 
"a vocational school," and its pupils are likewise to be in- 
cluded in the terms of G. L., c. 161, § 108. 

A "part time class," provided for by chapter 74, is defined 
by the first section of the chapter as "a vocational class in 
an industrial, agricultural or household arts schools," and 
the pupils attending such a class are clearly entitled to the 
benefit of the reduced fare. 

An "independent industrial, agricultural or household 
arts school," provided for by chapter 74, is defined in the 
first section as being for all the types of vocational training 
defined in the section, and its pupils are clearly within the 
terms of G. L., c. 161, § 108. The same considerations appl}^ 
to an independent agricultural school mentioned in chapter 
74. 

Under the heading of "Vocational Schools," section 1 
of chapter 74 defines "evening class," in an industrial school, 
a class giving instruction for pupils employed during the 
working day, and which, to be called vocational, must 
deal with and relate to the day employment. ..." Even 
if the instruction which the pupil receives in the class is not, 
by reason of its failure to relate to the pupil's day employ- 
ment, such as to be called "vocational," nevertheless, as 
the class itself is conducted in an industrial school, a school 
which by the definitions of the statute is engaged in the 



JAY R. BENTON, ATTORNEY-GENERAL. 349 

general course of giving vocational education, the pupils 
may fairly be said to be pupils of a vocational school and so 
be entitled to the benefits of the statute. 

A "practical art class," provided for by this chapter, is 
defined as "a separate day or a separate evening class in 
household and other practical arts." A "household arts 
education" has already been defined in the first section of 
the chapter as a form of vocational training, and if such 
practical art class be held in connection with one of the 
schools connected with the arts already referred to, the 
pupil is entitled to the benefit of the statute. If such a 
class, however, provided for by section 14 of chapter 74, 
be formed and conducted independently of any of the schools 
mentioned in the chapter, the attendants upon such classes 
can hardly be said to be "pupils of vocational schools," 
and in such case would not be entitled to the benefits of the 
statute. A single class conducted without reference to 
other groups or classes having a common management is 
not the equivalant of a "school." 

Schools such as are mentioned in section 15 of chapter 74 
would seem to fall within the classification of vocational 
schools if their primary purpose be to give education to 
fit pupils for profitable employment. If such be not the 
primary purpose of any one of such schools, then such 
school cannot be said to be a "vocational school" within the 
meaning of chapter 161 and its pupils would not be entitled 
to the lower fare. 

These instances appear to cover the various kinds of 
schools and classes which may be formed or maintained 
under the provisions of chapter 74, with the exception of 
those schools which are expressly referred to by name in the 
statute and explicitly declared to be "vocational." As 
to the status of pupils of such schools, there can be no doubt 
but that they are entitled to the reduced fare. 

With the exception of the two instances above noted, 
the various types of pupils comprehended by the act would 



350 



OPINIONS OF THE ATTORNEY-GENERAL. 



seem to fall fairly under the designation of pupils of vo- 
cational schools, and as such to be entitled to the lower rate 
of fare. 



To the Joint 
Committee on 
Elections. 

1924 
February 6. 



Constitutional Law — Membership in Political Com- 
mittees — Police Power. 

Membership in a political committee belonging to a political party is not a public 

office, and may properly be regulated by the Legislature in the exercise of the 

police power. 
A bill providing that State committees shall consist of one committeeman and one 

committeewoman from each senatorial district and a number of members at 

large, would be constitutional, if enacted. 

I have the honor to acknowledge receipt of your commu- 
nication in behalf of the joint committee on election laws, 
requesting my opinion whether or not House Bill No. 473, 
if enacted into law, would be constitutional. 

Section 1 of the bill, which presents the constitutional 
question to which your inquiry relates, amends section 1 
of G. L., c. 52, relative to political committees, by striking 
out, in the fifth line, the word "member" and inserting the 
words "committeeman and one committeewoman," so 
that the first paragraph will read as follows : — 

Each political party shall, at the primaries before each biennial state 
election, elect a state committee, the members of which shall hold office 
for two years from January first next following their election and until 
their successors shall have organized. Said committee shall consist of 
one committeeman and one committeewoman from each senatorial dis- 
trict, to be elected at the state primaries by plurality vote of the members 
of his party in the district, and such number of members at large as may 
be fixed by the committee, to be elected at the state convention. 

By section 2 of the bill, G. L., c. 53, § 34, as amended, 
relative to the form of ballots to be used at primaries, is 
further amended by adding a provision that names of 
candidates for State committeemen and for State committee- 
women shall be arranged alphabetically under separate 
designations. 

If membership in a political committee were a public 



JAY R. BENTON, ATTORNEY-GENERAL. 351 

office we should be confronted at the outset by the grave con- 
stitutional question whether the provision requiring the 
election of one committeeman and one committeewoman 
from each senatorial district did not violate article IX of 
the Bill of Rights, by which it is declared that "all the in- 
habitants of this commonwealth, having such qualifications 
as they shall establish by their frame of government, have 
an equal right to elect officers, and to be elected, for public 
employments." Since the adoption of the Nineteenth 
Amendment to the United States Constitution this pro- 
vision assures to both men and women, otherwise qualified, 
an equal right to hold public office as well as to vote. "Now 
that the word 'male' as a limitation upon the right to vote 
has been eliminated from the Constitution of Massa- 
chusetts, and the suffrage is thrown open to all citizens, all 
express limitation upon eligibility for office founded upon 
sex, created or recognized by the Constitution, disappears." 
Opinion of the Justices, 240 Mass. 601, 608, 609. A require- 
ment as to particular public offices, that they shall be filled 
according to a sex distinction, although resulting in a division 
of offices of a certain class between men and women equally, 
or by any method of apportionment, would seem to be 
wholly inconsistent with the rule thus enunciated; but 
as to this I am not called upon to express a formal opinion. 
It is, however, settled that membership in a political com- 
mittee belonging to a political party is not a public office. 
The duties of the position do not involve in their performance 
the exercise of any portion of the sovereign power. "The 
fact that the Legislature has deemed it expedient to regulate 
by statute the election and conduct of political committees 
does not make the office a public one. The members of 
them continue to be, as before, the officers of the party 
which elects them, and their duties are confined to matters 
pertaining to the party to which they belong, and which 
alone is interested in their proper performance." Attorney 
General v. Drohan, 169 Mass. 534, 536; V Op. Atty. Gen. 
614. 



352 OPINIONS OF THE ATTORNEY-GENERAL. 

The Constitutions both of the United States and of the 
Commonwealth contain no mention of poHtical parties or 
of political committees thereof. No peculiar constitutional 
safeguards surround such organizations or persons connected 
with them. The validity of legislation affecting them 
depends upon ordinary constitutional principles. Political 
committees may properly be regulated by the Legislature 
in the exercise of the police power; and any such regulation 
will be valid unless it trenches upon the political rights 
of voters secured by the Constitution of Massachusetts, 
or unless, because it is arbitrary or unreasonable, it offends 
against the fundamental constitutional guaranties of due 
process of law and equal protection of the laws contained in 
the Fourteenth Amendment to the United States Con- 
stitution and corresponding provisions of our State Con- 
stitution. Cole V. Tucker, 164 Mass. 486; Jaquit v. Welles- 
ley, 171 Mass. 138, 143; Commonwealth v. Rogers, 181 
Mass. 184, 186, 187; Wyethv. Cambridge Board of Health, 
200 Mass. 474, 478; V Op. Atty. Gen. 614. The Legislature 
has a wide discretion in the enactment of laws for the pro- 
motion of the general welfare. They are invalid only if 
they are arbitrary or inappropriate to the end in view or 
contain some classification or discrimination which is un- 
reasonable. Commonwealth v. Interstate, etc., St. Ry. Co., 
187 Mass. 436; Coinmonwealth v. Strauss, 191 Mass. 545, 
553 ; Wijeth v. Cambridge Board of Health, 200 Mass. 474, 
478; Cominonwealth v. I Abbey, 216 Mass. 356; Commonwealth 
V. Tiicomb, 229 Mass. 14; Laivton v. Steele, 152 U. S. 133, 
137; Tanner v. Little, 240 U. S. 369. Every rational pre- 
sumption must be made in favor of the validity of such 
legislation, if enacted. Perkins v. Westwood, 226 Mass. 
268; Attorney General v. Pelletier, 240 Mass. 264, 298, 299. 

We come now to the specific question whether the pro- 
vision that a State committee shall consist of one committee- 
man and one committeewoman from each senatorial district 
is unconstitutional. 

The statute today provides for the election of one member 



JAY R. BENTON, ATTORNEY-GENERAL. 353 

from each senatorial district. The proposed law provides 
for the election of a committeeman and a committeewoman 
from each senatorial district. The regulation does not affect 
the right to hold public office or the right to vote for public 
officers. The distinction which it makes creates no political 
inequality, nor does it seem to interfere with the legal rights 
of any person in such a way as to deny to him the equal 
protection of the laws. An analogy may be found in laws 
requiring the separation of white and colored persons in 
matters unconnected with the right to hold public office 
or vote for public officers. Such laws, when the distinction 
is a reasonable one, in view of the purpose contemplated, 
have been held not to violate the Fourteenth Amendment, 
because it was not intended by that amendment to prohibit 
all distinctions based upon color. Plessy v. Ferguson, 
163 U. S. 537, 544; Pace v. Alabama, 106 U. S. 583; Berea 
College v. Kentucky, 211 U. S. 45. See also, Ciml Rights 
Cases, 109 U. S. 3. The proposed act provides for an 
equal proportion of men and women to be elected to the 
State committee from each senatorial district. This, it 
ma}" be presumed, corresponds roughly to the proportion 
of men and women qualified to vote for delegates. It 
cannot be said as a matter of law, in my judgment, that if 
the Legislature, in its discretion, deems that it is expedient 
so to regulate by statute the election of political com- 
mittees, this regulation would be arbitrary and unreasonable. 
My opinion, therefore, is that the bill, if enacted, would be 
constitutional. 



354 opinions of the attorney-general. 

State Armories — Armorers and Assistant Armorers 
— Appointment as Special Police. 

There appears to be no provision of law authorizing the appointment of armorers 
and assistant armorers in State armories as special police officers. 

^nt Genemf You Fcquest my opinion "as to the method of procedure 

Februity 9. for securing the appointment of armorers and assistant 
armorers as special pohce officers," and I assume that you 
mean to inquire as to the possibiUty of such appointment. 
I am unaware of any provision in the General Laws or 
amendments thereto, with certain exceptions not here 
applicable, which authorizes such appointment. Special 
statutes for specific municipalities have from time to time 
been enacted authorizing the appointment of special police 
officers under certain circumstances and for certain purposes. 
Whether armorers may be appointed as special police officers 
in a given community depends upon the special act applicable 
to that community. 

As a guide to an interpretation of some of the special 
acts relating to special police officers I refer to the legislation 
affecting the city of Boston. There the Police Com- 
missioner may appoint special police officers only under 
St. 1898, c. 282, § 2, and amendments thereof, which pro- 
vides : — 

Said board may, if it deems it expedient, on the application of any cor- 
poration or person that said board may deem responsible, appoint special 
police officers to serve without pay from said city, and the corporation 
or person applying for an appointment under this section shall be liable 
for the official misconduct of the officer appointed on such application, 
as for the torts of any servant or agent in the employ of such corporation 
or person. 

The "corporation or person" referred to in the act is the 
corporation or person employing the individual sought to 
be appointed as a special police officer. It seems apparent 
that an armorer may not be appointed a special police 
officer in Boston, since the Commonwealth is neither a 



JAY R. BENTON, ATTORNEY-GENERAL. 355 

corporation nor a person, within the meaning of the act, and 
no officer of the Commonwealth can by such appHcation 
impose any Hability upon it for the armorer's misconduct. 
As a further guide to a consideration of the effect of other 
special acts I refer also to St. 1898, c. 282, § 3. That section 
provides, in part : — 

Every special police officer appointed under the pro\asions of this act 
. . . shall have the power of police officers to preserve order and to en- 
force the laws and ordinances of the city in and about any park, public 
ground, place of amusement, place of public worship, wharf, manufactory 
or other locality specified in the application. . . . 

In the matter of making arrests a special police officer 
is confined strictly to the powers given by the statutes 
creating his position and relating thereto. Hull v. Boston 
& Maine R.R., 210 Mass. 159. Section 3 does not give 
a special police officer the full powers enjoyed by the regular 
police force of Boston. His powers thereunder are limited 
to the preservation of order and the enforcement of the laws 
and ordinances of the city. They could not, except with 
respect to the preservation of order, be exercised in armories, 
since armories are specifically placed under the care and 
control of officers of the Commonwealth and are not subject 
to local regulation. I Op. Atty. Gen. 290; II Op. Atty. 
Gen. 399; IV Op. Atty. Gen. 537. 

I refrain from considering at this time what would be 
the respective powers of a special police officer and a com- 
manding officer under G. L., c. 33, § 51. Such consideration 
may not be necessary under any existing law. I do not pass 
on the desirability of uniting civil and military authority 
in the same person, as that is beyond my province. 



356 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Com- 
niissioner of 
Insurance. 

1924 
February 12. 



Insurance — Right of Domestic Mutual Companies 
TO transact Lawful Forms of Business in Addition 

TO THOSE specified IN THEIR CHARTERS AUTHORITY 

OF Commissioner of Insurance. 

The Commissioner of Insurance does not possess a discretion as to issuing or with- 
holding an express license to a domestic mutual company to transact a lawful 
form of insurance business in addition to those specified in its charter and 
additional to those mentioned in G. L., c. 175, § 47. If the proposed form of 
insurance business is lawful, and the terms and conditions for its transaction, 
laid down by the Commissioner, are complied with, the company is entitled 
to such express license a-s a matter of right. 

You have asked my opinion whether you have discretion 
either to grant or to refuse a license to a domestic mutual 
company to transact the business of insuring against loss 
of use and occupancy caused by strikes and sabotage, 
which is a kind of business not specified in its charter or 
agreement of association and not included among the pur- 
poses for which an insurance company may be incorporated ; 
or whether you are Umited in your discretion to the determi- 
nation of the terms and conditions under which such busi- 
ness shall be carried on. 

G. L., c. 175, § 47, enumerates the kinds of business for 
the doing of which companies may be incorporated under 
the Massachusetts insurance law. Section 54 provides : — 

No domestic mutual company shall transact any other kind of busi- 
ness than is specified in its charter or agreement of association, except 
that it may in addition transact the kinds of business specified below by 
reference to the several clauses of section forty-seven, as follows: 

ig) Any form of insurance not inchided in the provisions of section 
forty-seven; provided, that such form of insurance is not contrary to 
law and shall be transacted only upon express license of the commissioner 
and upon such terms and conditions as he may from time to time pre- 
scribe. 



The question is whether the right given to a domestic 
mutual compan}^ by G. L., c. 175, § 54, {g), to transact, in 
addition to the kinds of business specified in its charter 



JAY R. BENTON, ATTORNEY-GENERAL. 357 

or agreement of association, ''any form of insurance not 
included in the provisions of section forty-seven," is so 
limited by the proviso that it shall be transacted only 
upon express license of the Commissioner as to depend 
upon the exercise of the Commissioner's discretion whether 
he will grant or refuse a license, or whether the Com- 
missioner's power is restricted to determining whether the 
proposed business is lawful and prescribing the terms and 
conditions under which such business may be transacted. 
In determining this question we must consider what author- 
ity was intended to be conferred on the Commissioner of 
Insurance by G. L., c. 175, § 54, {g). 

The kinds of business which a domestic insurance com- 
pany might be organized to do were prescribed by statute 
in 1872, and have been defined and limited since that time. 
The Legislature during this period always reserved to itself 
the power to pass on the advisabihty of the kinds of insurance 
that should be written, and enacted laws with appropriate 
restrictions. This policy was followed until 1920, at which 
time there were left but a few relatively unimportant kinds 
of insurance, with the result that the Legislature enacted a 
blanket clause, St. 1920, c. 327, § 2, now found in two places, 
to wit, G. L., c. 175, § 51, [g], and § 54, {g). To interpret 
these clauses as giving tlie Conmiissioner of Insm-ance an 
absolute discretion, from which no appeal may be taken, 
to determine what kinds of business insurance companies 
may transact would be saying that the Commissioner has 
complete authority to determine the extent of an insurance 
company's corporate powers. If it had been the intention 
of the Legislature to vest such an absolute discretion in the 
Commissioner, and to depart from its long-established 
policy, it would have said so in plain and unmistakable 
language. The language of the act seems to indicate a 
contrary intention. In my opinion, G. L., c. 175, § 54, 
{g), confers upon domestic mutual companies the right, 
subject to certain conditions, to transact any form of in- 
surance not included in the provisions of section 47 which is 



358 OPINIONS OF THE ATTORNEY-GENERAL. 

not contrary to law, and this right may not be taken away 
from them by the Commissioner even in the exercise of a 
sound and reasonable discretion. 

I am accordingly of the opinion that the Commissioner 
of Insurance has no discretion either to grant or to refuse 
a license for forms of insurance which are not contrary to 
law, and that his discretion is restricted to determining 
whether the proposed business is lawful and to prescribing 
the terms and conditions under which such business may be 
transacted. 

Plant Pest Control — Nurseries — Abatement of 

Nuisance. 

The director of the Division of Plant Pest Control has no authority to abate a 
nuisance caused by the presence of gypsy or brown tail moths in land separated 
from a nursery by a public highway, but has such authority when the nuisance 
is caused by the presence of other serious insect pests. 

To the Com- You rcQuest my opinion whether the director of the 

missioner of i ./ i 

Agricuhure. Divisiou of Plaut Pest Control has any authority to act 
February 14. ^^^^^^^ q^ ^^ ^ -^28, §§ 24 and 28, iu a case where land 
immediately across the road from land occupied by a nursery 
is badly infested with injurious insects, especially gypsy 
moths. I assume that you use the word "nursery" as 
synonymous with a place ''where nursery stock is grown." 
G. L., c. 128, § 24, provides, in part, that "the director, 
either personally or through his assistants, may inspect 
any orchard, field, garden, roadside or other place where 
trees, shrubs or other plants exist, whether on public or 
private property, which he may know or have reason to 
suspect is infested with the San Jose scale or any serious 
insect pests or plant disease, when in his judgment such 
pests or disease are hkely to cause loss to adjoining owners," 
and may take steps to abate the nuisance. 
Section 28 of the act provides : — 

Sections sixteen to twenty-seven, inclusive, twenty-nine and tliirty, 
shall not apply to gypsy or brown tail nu)ths in any stage of development 



JAY R. BENTON, ATTORNEY-GENERAL. 359 

except upon places where nursery stock is grown and upon property 
immediately adjoining the same. 

The determination of your question depends upon the 
meaning of the words "adjoining" and "immediately ad- 
joining" as used in the act. The prime meaning of the 
word "adjoining" is to He next to or to be in contact with, 
excluding the idea of any intervening space. Yard v. Ocean 
Beach Association, 49 N. J. Eq. 306; Century Dictionary; 
Standard Dictionary. The word "adjoining" is, however, 
also used in the sense of adjacent, along, fronting, near, close 
by, and similar words. Mathews v. Kirnball, 70 Ark. 451 ; 
Alexander v. Big Rapids, 76 Mich. 282; Akers v. United 
New Jersey R.R., 43 N. J. L. 110; Northern Pacific Ry. Co. v. 
Douglas County, 145 Wis. 288. Wlien the word is used in 
statutes relating to particular acts or circumstances the 
meaning must often be gathered from the context and the 
general intention of the particular statute in which it is used, 
and if property is the general subject of the enactment the 
situation and nature of the property sought to be included 
or excluded by the use of the word must be taken into ac- 
count. Spaulding v. S77iith, 162 Mass. 543; Devoe v. Co7n- 
monwealth, 3 Met. 316; St. Mary's Woolen Mfg. Co. v. Brad- 
ford Co., 14 Ohio C. Ct. 522; State v. Downes, 59 N. H. 320. 

The substance of G. L., c. 128, § 24, first appeared in St. 
1907, c. 321, § 4, which was made applicable to trees, shrubs 
or other plants "close by." The word "adjoining" appeared 
for the first time in St. 1909, c. 444, and was continued in 
the General Laws. The title of the 1909 act is, in part, 
"to provide for the protection of trees and shrubs from in- 
jurious insects and diseases." It seems clear both from the 
context and the title of the 1909 act that the Legislature 
did not intend to narrow the power conferred in the 1907 act, 
and that it used the word "adjoining" in the sense of "close 
by," as used in the 1907 statute. If the word "adjoining" 
in section 24 were given its primary meaning of "being in 
contact with," no effect could be given to the word "im- 



360 OPINIONS OF THE ATTORNEY-GENERAL. 

mediately" in section 28, yet it is plain that the Legislature 
did not regard the words "immediately adjoining," in section 
28, as synonymous with ''adjoining" in section 24. 

Taking into consideration, therefore, the purpose sought 
to be accomplished and the intent of the Legislature as 
shown by the title of the act and by the use of the words 
''adjoining" and "immediately adjoining" in the same 
statute, I am of the opinion that the word "adjoining" 
as used in section 24 means adjacent, close by or near, and 
that the words "immediately adjoining" as used in section 
28 mean touching at some point. I am accordingly of 
the opinion that the director has authority, under G. L., 
c. 128, § 24, to take action with respect to plant disease 
or insect pests, other than gypsy or brown tail moths, 
when in his judgment the disease or pests are hkely to cause 
loss to owners close by, even though the respective lands 
do not touch at any point, and that with respect to gypsy 
or brown tail moths he has no authority to act except 
upon places where nursery stock is grown or upon property 
immediately touching a nursery at some point. 

You do not advise me as to the precise nature of the road 
which lies between the nursery and the infested land, but 
I assume that it is a public highway. Even though the fee 
of both owners may extend to the middle of the road and 
the nursery and the infested land thus legally touch one 
another, I am of the opinion that this is not the sort of 
contact contemplated by section 28. See Spaulding v. 
Smith, 162 Mass. 543. 

Your question should therefore be answered in the negative 
so far as g3T)sy or brown tail moths are concerned, and in 
the affirmative with respect to other injurious insects. 



jay r. benton, attorney-general. 361 

Forfeiture of Club Charter — Intoxicating Liquors 
— "Conviction." 

a charter of a club may be declared void l)y the Secretary of the Commonwealth 
only after conviction of a person for exposing and keeping for sale or selling 
intoxicating liquor on the club premises. 

Only a final judgment is such conviction. 

A plea of guilty and the placing of the case on file does not constitute such con- 
viction. 

A charter of a club may not be declared void upon conviction for maintaining a 
common liquor nuisance. 

You request my opinion whether, under the provisions se°cr^tary. 
of G. L., c. 138, § 76, you have authority to declare void Februfrt' 19. 
the charter of a club described in G. L., c. 180, § 2, when its 
manager pleaded guilty to keeping and exposing intox- 
icating liquor for sale on the premises occupied by it and 
his case was placed on file, and he further pleaded guilty 
to maintaining a common liquor nuisance on its premises 
and was fined $100, which he paid. 

G. L., c. 138, § 76, provides, in part: — 

If any person is convicted of exposing and keeping for sale or selling 
intoxicating liquor on the premises occupied by any club or organization 
described in section two of chapter one hundred and eighty . . . the 
selectmen of the town, or the aldermen of the city, in which such club or 
organization is situated, except Boston, and in Boston, the licensing 
board, shall immediately notify the state secretary, and he shall, upon 
receipt of such notice, declare the charter of said club void, . . . 

The term "conviction" has been used in two different 
senses in our statutes. In one use it signifies a plea of guilty 
or a finding by the jury that the defendant is guilty. In 
another use it signifies a final judgment and sentence of 
the court upon a verdict or confession of guilt. Attorney 
General v. Pelletier, 240 Mass. 264, 310; Munkley v. Hoyt, 
179 Mass. 108, 109; Commonwealth v. Kiley, 150 Mass. 
325, 326; Commonwealth v. Lockwood, 109 Mass. 323; Com- 
monwealth V. Gorham, 99 Mass. 420, 422. 

Where the statute provided that the conviction of a person 
licensed to sell intoxicating liquors shall of itself make the 



362 OPINIONS OF THE ATTORNEY-GENERAL. 

license void, the court, in holding that a final judgment 
was necessary, said, in Commonwealth v. Kiley, 150 Mass. 
325, 326: — 

Under this provision, the effect of a conviction of the kind named is 
to deprive the defendant of a valuable right, without an opportunity for 
further trial or investigation. We are of opinion that nothing less than 
a final judgment, conclusively establishing guilt, will satisfy the meaning 
of the word "conviction" as here used. 

Two of my predecessors have held that the term "con- 
viction," in statutes providing that licenses shall be void 
upon conviction, meant a final judgment. IV Op. Atty. 
Gen. 157; V Op. Atty. Gen. 401. 

I am of the opinion that the instant case is governed by 
the rule laid down in Commonwealth v. Kiley, supra, and 
expressed in the opinions referred to, and that the charter 
of a corporation may be declared void under the provisions 
of G. L., c. 138, § 76, only after final judgment. The plea 
of guilty to the charge of keeping and exposing intoxicating 
liquors for sale and the placing of the case on file do not 
constitute a final judgment, and are not, in my opinion, a 
conviction within the meaning of section 76. 

The corporation's manager pleaded guilty to maintaining 
a common liquor nuisance and paid a fine upon that plea. 
This constituted a final judgment, but is not one of the 
offences enumerated in section 76 as a basis for declaring 
the charter of the club void. A person may be guilty of 
that offence without exposing and keeping for sale or selhng 
intoxicating liquor. See G. L., c. 138, § 82. 

I therefore advise you that you have no authority under 
G. L., c. 138, § 76, to declare the charter of the club void. 



February 20. 



jay r. benton, attorney-general. 363 

Boston Elevated Railway Company — Public Control 
— Dividends "earned and paid." 

Payments by the Commonwealth to the Boston Elevated Railway Company under 
Spec. St. 1918, c. 159, § 11, are to be treated as earnings in determining whether 
said railway company has "earned and paid" dividends within the meaning 
of G. L., c. 168, § 54, cl. 4th. 

You ask to be advised whether or not the Boston Elevated Department of 
Raihvay Company, in receiving the amounts due to it PubUc^utihties. 
under the provisions of Spec. St. 1918, c. 159, and in paying 
therefrom and from its other receipts dividends to its stock- 
holders, as provided by that act, has "earned and paid" 
such dividends, within the meaning of that phrase in G. L., 
c. 168, § 54, cl. 4th. 

The first two paragraphs of G. L., c. 168, § 54, cl. 4th, 
read as follows : — 



Section 54. Deposits and the income derived tlierefroni shall be in- 
vested only as follows; 

Fourth. In the bonds of any street railway company incorporated in 
this commonwealth, the railway of which is located wholly or in part 
therein, and which has earned and paid in dividends in cash an amount 
equal to at least five per cent upon all its outstanding capital stock in 
each of the five years last preceding the certification hereinafter provided 
for by the department of public utilities or its predecessors except the 
six months' period beginning July first and ending December thirty-first, 
nineteen hundred and sixteen. No such investment shall be made unless 
said company appears from returns made by it to the said department to 
have properly paid said dividends without impairment of assets or capital 
stock, and said department shall annually on or before June fifteenth 
certify and transmit to the commissioner a list of such street railway 
companies. 

Di\'idends paid by way of rental to stockholders of a leased street 
railway company shall be deemed to have been earned and paid by said 
company within the meaning of this clause, provided that said company 
shall have annually earned, and properly paid in dividends in cash, with- 
out impairment of assets or capital stock, an amount equal to at least 
five per cent upon all its outstanding capital stock in each of the five 
fiscal years preceding the date of the lease thereof. 



364 OPINIONS OF THE ATTORNEY-GENERAL. 

These two paragraphs of G. L., c. 168, § 54, cl. 4th, re- 
enacted, without alteration pertinent to the present inquiry, 
the first and second paragraphs of St. 1908, c. 59, cl. 5th. 
These, in turn, were based upon St. 1902, c. 483, §§1 and 2, 
which read as follows : — 

Section 1. In addition to the investments authorized by section 
twenty-six of chapter one hundred and thirteen of the Revised Laws, 
savings banks and institutions for savings may invest their deposits and 
the income derived therefrom in the bonds, approved by the board of 
commissioners of savings banks, as hereinafter provided for, of any street 
railwaj^ company incorporated in this Commonwealth, the railway of 
which is situated wholly or partly therein, and which has earned and 
paid annually for the five years last preceding the certification hereinafter 
provided for, of the board of railroad commissioners, dividends of not 
less than five per cent per annum upon all of its outstanding capital 
stock. In any case where two or more companies have been consoli- 
dated by purchase or otherwise during the five years prior to the certifi- 
cation aforesaid the payment severalh'^ from the earnings of each year of 
dividends equivalent in the aggregate to a dividend of five per cent upon 
the aggregate capital stocks of the several companies during the years 
preceding such consolidation, shall be sufficient for the purpose. of this 
act. Dividends paid to the stockholders of the West End Street Railway 
Company by way of rental shall be deemed to have been earned and paid 
by said West End Street Railway Company within the meaning of this 
section. 

Section 2. The board of railroad connnissioners shall on or before 
the fifteenth day of January of each year transmit to the board of com- 
missioners of savings banks a list of all street railway companies which 
appear from the returns made by said companies to have properly paid, 
without impairment of assets or capital stock, the dividends required by 
the preceding section. 

Prior to 1902, bonds of street railway companies were not 
legal investments for saving banks. 

The change in the phraseology of the original act, St. 
1902, c. 483, §§ 1 and 2, which was made in 1908, followed 
the recommendation of a legislative committee appointed 
in 1907 and charged with the duty of suggesting changes in 
the existing savings bank law. On page 27 of the report 
of this committee (House Document No. 1280) there 
appears the following paragraph : — 



JAY R. BENTON, ATTORNEY-GENERAL. 365 

Street Railway Bonds. 
The committee have recommended no change in the paragraph relating 
to investments in street railway bonds, but in conformity with the plan 
followed under the paragraph relating to railroad bonds, they have 
eliminated the name of the West End Street Railway from the present 
law, and have provided in general terms for the situation which required 
its mention. 

Such expressions of legislative intent may be considered in 
construing the act to which they relate. Binns v. United 
States, 194 U. S. 486, 495; Holy Trinity Church v. United 
States, 143 U. S. 457, 464. 

The precise legal effect upon the position of the Boston 
Elevated Railway Company of the so-called ''control act" 
of 1908, Spec. St. 1918, c. 159, has not as yet been definitely 
determined. The important provisions of that act in 
regard to the payment of dividends by the Boston Elevated 
Railway Company are as follows : — 

Section 6. The trustees shall from time to time, in the manner here- 
inafter provided, fix such rates of fare as will reasonably insure sufficient 
income to meet the cost of the service, which shall include operating ex- 
penses, taxes, rentals, interest on all indebtedness, such allowance as they 
may deem necessary or advisable, for depreciation of property and for 
obsolescence and losses in respect to property sold, destroyed, or aban- 
doned, all other expenditures and charges which under the laws of the 
commonwealth now or hereafter in effect may be properly chargeable 
against income or surplus, fixed dividends on all preferred stock of the 
company from time to time outstanding, and dividends on the common 
stock of the company from time to time outstanding at the rate of five 
per cent per annum on the par value thereof during the first two years, 
five and one half per cent per annum on the par value thereof during the 
next two years and six per cent per annum on the par value thereof during 
the balance of the period of public operation. Dividends upon the com- 
mon shares shall be payable quarterly, but no dividends shall be paid 
upon such common shares in excess of the rates herein specified. The 
first payment shall be made at the expiration of six months from the com- 
mencement of public operation, and the total of the first three quarterly 
dividend pajmients shall be five per cent on the par value of the common 
stock. 



366 OPINIONS OF THE ATTORNEY-GENERAL. 

Section 9. Whenever the income of the company is insufficient to 
meet the cost of the service as herein defined, the reserve fund shall be 
used as far as necessary to make up such deficiency, . . . 

Section 11. If, as of the last day of June in the year nineteen hundred 
and nineteen, or the last day of any December or June thereafter, the 
amount remaining in the reserve fund shall be insufficient to meet the 
deficiency mentioned in section nine, it shall be the duty of the trustees 
to notify the treasurer and receiver general of the commonwealth of the 
amount of such deficiency, less the amount, if any, in the reserve fund 
applicable thereto, and the commonwealth shall thereupon pay over to 
the company the amount so ascertained. Pending such payment it shall 
be the duty of the trustees to borrow such amount of money as may be 
necessary to enable them to make all payments, including dividend pay- 
ments, as they become due. . . . 



Spec. St. 1918, c. 159, amounted either to a lease of the 
railway property to the Commonwealth or to a contract 
for public operation upon stipulated terms. Boston v. 
Treasurer and Receiver General, 237 Mass. 403, 416. Prob- 
ably the former view is the more satisfactory. Boston v. 
Jackson, 260 U. S. 309, 314. See, also, Opinion of the 
Justices, 231 Mass. 603; V Op. Atty. Gen. 320. In either 
case, however, in my opinion, the phrase "earned and paid," 
in the first paragraph of G. L., c. 168, § 54, cl. 4th, quoted 
above, is broad enough to include both receipts from oper- 
ation and payments, if any, by the Commonwealth under 
section 11 of the control act. 

The word ''earned" is not to be restricted to the dimes 
and nickels actually collected from passengers. Unquestion- 
ably it would include money received under advertising 
contracts and the like, or under leases of superfluous land 
or rolling stock. If payments by the Commonwealth 
under section 11 be regarded as receipts under a contract 
to make good possible deficiencies, they would seem, there- 
fore, to be included within the meaning of the word "earned." 
Nor does there seem any sound reason for so restricting 



JAY R. BENTON, ATTORNEY-GENERAL. 367 

that meaning as to exclude them, even though looked upon 
as rental from a lease of the enth'e system. 

Two considerations fortify me in this conclusion. R. L., 
c. 113, § 26, to which St. 1902, c. 483, was in fact, though 
not in form, an amendment, permitted savings banks to 
invest in the bonds of railroad corporations which complied 
with certain requirements. The first paragraph of the third 
clause of that section was as follows : — 

Third, a. In the first mortgage bonds of a railroad company incor- 
porated in any of the New England states and whose road is located 
wholly or in part in the same, whether such corporation is in possession 
of and is operating its own road or has leased it to another railroad cor- 
poration, and has earned and paid regular dividends of not less than 
three per cent per annum on all its issues of capital stock for the two years 
last preceding such investment. 

Originally {i.e., down to P. S., c. 116, § 20, cl. 3rd), this 
paragraph read : — 

In the first mortgage bonds of any railroad company . . . which is in 
possession of and operating its own road, and has earned and paid regular 
dividends . . . 

Prior to 1902, however, it had been amended by St. 1889, 
c. 305, so as to include railroad corporations which ''earned 
and paid regular dividends . . .," whether such corporation 
operated its own road or had leased it to another railroad 
corporation. The fact that, at the time of the adoption 
of St. 1902, c. 483, the law governing the legality of rail- 
road bonds as savings bank investments had evolved to 
this point, indicates to my mind that the Legislature, in 
omitting in the first paragraph of that act any reference to 
the distinction between leased and operated street railways, 
intended the test of legality thereby established to apply 
equally to both. 

My opinion is further fortified by the last sentence of St. 
1902, c. 483, § 1 (now the second paragraph of G. L., c. 168, 
4,§ 5 cl. 4th), providing that "dividends paid to the stock- 



36S OPINIONS OF THE ATTORNEY-GENERAL. 

holders of the West End Street Railway Company by way 
of rental shall be deemed to have been earned and paid by 
said West End Street Railway Company within the meaning 
of this section." The existence of this final sentence, which 
was added to the original act as an eleventh hour amend- 
ment, is explained by the fact that, under the provisions 
of the lease of the West End Street Railway to the Boston 
Elevated Railway Company, the Boston Elevated, on 
stipulated dates in each year, paid directly to the stock- 
holders of the West End Street Railway Company certain 
stipulated sums per share held. See West End St. Ry. 
Co. V. M alley, 246 Fed. 625, 626. Under such an arrange- 
ment it might well have been open to question whether the 
West End Street Railway Company earned and paid any 
dividends whatsoever. The amendment was undoubtedly 
introduced to take care of that situation; and it is to that 
situation that we must look in interpreting the phrase 
"dividends paid by way of rental" in St. 1902, c. 483, and 
also, in view of the intention expressed in 1908 to effect 
no change in existing law, in interpreting that phrase in 
the second paragraph of G. L., c. 168, § 54, cl. 4th. 

The fact, therefore, that the Legislature, in 1902, ex- 
pressly included a particular leased line among those street 
railway companies to which S. 1902, c. 483, was applicable, 
not as an exception to a general rule excluding leased lines, 
but in order that that particular leased line should not be 
debarred from the privilege accorded to leased hues in 
general, because of the short cut method adopted by it 
for distributing to its stockholders the profits of its lease, 
seems to me a further indication of the legislative intent that 
the test of legality established should apply equally to 
leased and to operated lines. In fact, had St. 1902, c. 483, 
included operated lines only and excluded in general all 
leased lines, a provision extending to a particular leased line 
the privilege denied to all others might well have been 
open to serious constitutional objections. 

It is true that the control act contemplates that the 



JAY R. BENTON, ATTORNEY-GENERAL. 369 

Boston Elevated Railway Company shall ultimately repay 
any money paid to it by the Commonwealth. It is to do 
so, however, only when, and if, its earnings from operation, 
in addition to covering all operating expenses and dividends, 
have built up a new surplus exceeding by thirty per cent 
or more the one million dollar reserve fund originally 
estabhshed. Spec. St. 1918, c. 159, § 11. This provision, 
therefore, is independent of the Commonwealth's obligation 
to meet possible deficiencies. It does not in any sense 
render a payment by the Commonwealth under section 
11a mere loan. Upon such a payment the Boston Elevated 
Railway Company does not become indebted to the Com- 
monwealth for the amount paid over to it. True, at some 
future date the Boston Elevated Railway Company may be 
operating so successfully that it will be required by section 
11 to reimburse the Commonwealth. But it is equally 
true that this desirable condition may never come to pass. 
Whether it does or not will depend upon the working of the 
law of demand and supply under new conditions of increased 
rates of fare. Despite the provision for possible future 
reimbursments, therefore, whether the consolidation act 
be looked upon as lease or a contract, payments to the 
Boston Elevated Railway Company under section 11 
properly may be regarded as money "earned" by it. 

Accordingly, in my opinion, if the Boston Elevated Rail- 
way Company, pursuant to Spec. St. 1918, c. 159, has paid 
dividends of at least five per cent on all its outstanding 
capital stock in the years 1919 to 1923, inclusive, and if in 
each of these years its receipts, including therein both earn- 
ings by operation and payments, if any, by the Common- 
wealth under section 11, have amounted to at least five 
per cent of the total outstanding capital stock, it has "earned 
and paid" such dividends during that period, within the 
meaning of G. L., c. 168, § 54, cl. 4th. 



370 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Com- 
missioner of 
Public Health. 

1924 
February 21. 



Vaccination — Unvaccinated Child — Admission to 
Public Schools — Proof of Vaccination. 

Vaccination, in its statutory meaning, ia the operation known as vaccination 
properly performed. A successful operation is not required to constitute 
vaccination. 

An unvaccinated child, within the purview of the statute, is a child upon whom 
the operation known as vaccination has not been properly performed. 

Visible evidence that vaccination has been successfully performed is not a neces- 
sary requirement for the admission of a child to a public school. 

Proof that a child has been properly vaccinated may be required before admission 
to a public school. 

Mere verbal changes in the revision of a statute do not alter its meaning. 

You have requested my opinion on the following questions : 

(!) What constitutes vaccination within the meaning of G. L., c. 76, 
§ 15? 

(2) Is it necessary, legally, to have visible evidence that vaccination 
has been successfully performed? 

(3) Inasmuch as the "Goodall" metliod may or may not produce an 
immunity, would a certificate from a physician stating that he had vac- 
cinated a child of school age by this method, admit the child as a vacci- 
nated pupil to school? 

G. L., c. 76, § 15, provides, in part: — 

An unvaccinated child shall not be admitted to a public school except 
upon presentation of a certificate like the physician's certificate required 
by section one hundred and eighty-three of chapter one hundred and 
eleven. . . . 



G. L., c. Ill, § 183, is, in part, as follows: — 

. . . any child presenting a certificate, signed by a registered physician 
designated by the parent or guardian, that the physician has at the time 
of giving the certificate personally examined the child and that he is of 
the opinion that the physical condition of the child is such that his health 
will be endangered by vaccination, shall not, while such condition con- 
tinues, be subject to the two preceding sections. 

Section 181 provides, in part: — 

Boards of health, if in their opinion it is necessary for public health or 
safety, shall require and enforce the vaccination and revaccination of 



JAY R. BENTON, ATTORNEY-GENERAL. 371 

all the inhabitants of their towns, and sluill provide them with tlie means 
of free vaccination. ... 

Section 182 provides for the vaccination of inmates of 
certain establishments and institutions. 

The requirement that children must be vaccinated before 
they may be admitted to the public schools first appears 
in St. 1855, c. 414, § 2, which provides that "the school 
committee of the several towns and cities, shall not allow 
any child to be admitted to or connected with the public 
schools who has not been duly vaccinated." 

Section 4 of that chapter provided for the enforcement 
of re-vaccination in cities and towns when the public health 
required it, with the following proviso : — 

. . . provided, that none shall Ije required to be re-vaccinated who shall 
prove, to the satisfaction of said selectmen, or mayor and aldermen, that 
they have been successfully vaccinated, or re-vaccinated, within five 
years next preceding; . . . 

Section 5 of the act provided that inmates of certain 
establishments and institutions should be "properly" 
vaccinated. 

The requirement making vaccination a condition pre- 
cedent to the right of a child to attend the public schools 
was modified by St. 1898, c. 496, § 11, which added the words 
"except upon presentation of a certificate signed by a regular 
practicing physician that such child is an unfit subject for 
vaccination." This excepting clause was changed from 
time to time thereafter until it reached its present form. 

The primary definition of the word "vaccination" is "in- 
oculation with vaccine, or the virus of cowpox, as a pre- 
ventive of smallpox." Century Dictionary; New Inter- 
national Encyclopedia. 

"Vaccination" is also defined as "a method of protective 
inoculation against smallpox, consisting in the intentional 
transference to thejhuman being of the eruptive disease 
of cattle, called cowpox." Encyclopedia Britannica. 



372 OPINIONS OF THE ATTORNEY-GENERAL. 

It is further defined as "a process of transmitting by in- 
oculation a specific disease, known as vaccinia, cowpox or 
modified smallpox, from one susceptible reagent to another." 
Encyclopedia Americana. 

The word '^un vaccinated" is defined as "not vaccinated; 
specifically, having never been successfully vaccinated." 
Century Dictionary. 

"Inoculation" is defined as "the introduction of a specific 
animal poison into the tissue by puncture or other contact 
with a wounded surface." Century Dictionary. 

In Commonwealth v. Jacohson, 183 Mass. 242, the defend- 
ant made an offer of proof, of which, as appears from the 
record, the ninth proposition was as follows : — 

Ninth. That vaccination consists in inoculating the human system 
with a specific disease, known as cowpox, by means of the insertion into 
the human body — by incision and absorption — of various kinds of 
virus, commonly known as matter or pus, generally obtained from cow- 
pox sores upon the bodies of calves (sometimes other animals) which 
have been infected with this disease for the purpose of generating this 
viinis, pus or matter. 

The court said, concerning this proposition, at page 246 : — 

The ninth of the propositions which he offered to prove, as to what 
vaccination consists of, is nothing more than a fact of common knowl- 
edge, upon which the statute is founded, and proof of it was unnecessary 
and immaterial. 

The decision was affirmed and the above remark was 
quoted with approval in Jacohsoii v. Massachusetts, 197 
U. S. 11, 23. 

In Lee v. Marsh, 230 Penn. 351, the following definition 
was applied in construing a statute of Pennsylvania : — 

The ordinary and usual meaning of "vaccination," and the sense in 
which it must be supposed to have been used by the legislature, is inocu- 
lation with the virus of cowpox for the purpose of communicating that 
disease as a prophylactic against smallpox. It indicates an operation, 
and not a result. If a person should take cowpox by milking cows, or 



JAY R. BENTON, ATTORNEY-GENERAL. 373 

otherwise, or from other contact with the disease he could not be said to 
have been vaccinated. The operation is comparatively old, having been 
in use for over 100 j^ears, and during that time has always consisted of 
inoculating the body, that is, grafting upon it the disease, by inserting 
the virus under the skin, and the test of its success has always been con- 
sidered to be the appearance of the symptoms of the disease, including 
those which manifest themselves on the skin. 

In the medical sense, an "un vaccinated" child is generally 
understood to mean either a child upon whom the operation 
known as vaccination has never been performed or upon 
whom it has been performed unsuccessfully. 

It thus appears that the word 'Vaccinated," as generally 
used, may apply either to the operation itself, whether 
successful or not, or to the successful operation. 

The meaning of the words "vaccinated" or unvacci- 
nated," as used in the statute, must be determined from 
the context, the general intention of the Legislature and 
the purpose to be accomplished. Commonwealth v. Nicker- 
son, 236 Mass. 281, 290; Hammond v. Hyde Park, 195 Mass. 
29, 30; Chapin v. Lowell, 194 Mass. 486, 488; Toupin v. 
Peahody, 162 Mass. 473, 476; Sweetser v. Emerson, 236 
Fed. 161, 162. 

The original act, St. 1855, c. 414, contains the words 
"vaccinated," "duly vaccinated," "successfully vaccinated," 
"properly vaccinated," and "re-vaccinated." 

The word "duly" means "in a fit manner; properly; 
in accordance with what is required or suitable." Words 
and Phrases, vol. 3, p. 2259. 

The terms of the act show that the Legislature under- 
stood and appreciated the double meaning of the word 
"vaccinated," and that vaccination did not furnish im- 
munity for life but that re-vaccination might be required 
at times for the protection of public health. In some 
instances, I am informed, children, because of natural in- 
susceptibility, can never be successfully vaccinated. An 
interpretation of the word "vaccinated" as "successfully 



374 OPINIONS OF THE ATTORNEY-GENERAL. 

vaccinated" would prevent such children from ever at- 
tending a public school. 

Where the vaccine used is fresh and the operation is 
properly performed, vaccination, I am informed, will be 
unsuccessful in a comparatively small number of cases. 

Taking all of the foregoing factors into consideration, I 
am of the opinion that the Legislature, by the use of the 
words "duly vaccinated," meant the operation known as 
vaccination properly performed, and did not mean the 
operation successfully performed. 

The words "duly vaccinated" appeared in the statutes 
from 1855 to the Revised Laws of 1902, when in the codifica- 
tion the word "duly" was omitted. It is also omitted in 
the General Laws. The requirement of proper vaccination 
as a condition precedent to admission to a public school 
nevertheless continues. The general rule is well settled 
that mere verbal changes in the revision of a statute do 
not alter its meaning, and the Legislature will not be pre- 
sumed to have intended to alter the law unless their language 
plainly requires that construction. Commonwealth v. N. Y. 
C. & H. R. R.R. Co., 206 Mass. 417, 419; Great Barrington 
V. Gibbons, 199 Mass. 527, 529; Tilton v. Tilton, 196 Mass. 
562, 564; Savage v. Shaw, 195 Mass. 571; Electric Welding 
Co. V. Prince, 195 Mass. 242, 259. 

Neither the language of the Revised Laws nor of the 
General Laws requires a construction that the Legislature 
intended to alter the law. 

I am therefore of the opinion that an "unvaccinated 
child," within the meaning of G. L., c. 76, § 15, is a child 
upon whom the operation known as vaccination has not been 
properly performed. 

My answer to your second question is in the negative. 

You state that recently a new method of vaccination 
has been introduced, known as the "Goodall" method, 
which consists of a hypodermic injection of the virus, 
leaving no evidence that the operation has been performed. 
Whether or not such method is vaccination properly per- 



JAY R. BENTON, ATTORNEY-GENERAL. 375 

formed is a question of fact which is not within my province 
to determine. The question whether in a given case a child 
has been properly vaccinated is a question of fact, as to 
which the proper authorities may require proof. 

G. L., c. 76, § 15, states a condition precedent, the non- 
fulfilment of which is an absolute bar to the right of a child 
to attend the public schools. But this is not the only 
statutory provision under which school children may be 
required to be vaccinated for the protection of the public 
health. Under the provisions of G. L., c. Ill, §§ 181 and 
183, boards of health may require and enforce the vacci- 
nation and re-vaccination of all the inhabitants of their 
towns, with the proviso, already referred to, exempting the 
child presenting a physician's certificate. In addition 
to this provision there is also the provision in G. L., c. 76, 
§ 5, as follows : — 

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 qualifications 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. . . . 

It has been held that by virtue of this provision school 
committees may adopt regulations imposing further require- 
ments with respect to vaccination. Hammond v. Hyde 
Park, 195 Mass. 29; Spofford v. Carleton, 238 Mass. 528. 
With respect to the character of such regulations the only 
requirement imposed by the statute is that they shall be 
"reasonable." Whether regulations prescribing methods 
of vaccination or the submission of proof of successful 
vaccination would be reasonable I do not undertake to 
determine. 



376 opinions of the attorney-general. 

Elections — Presidential Primaries — Candidates for 
Delegates to National Party Conventions — 

Preferences. 

A nomination paper of a candidate for delegate to a national party convention at 
a presidential primary sufficiently states the preference of the candidate in 
accordance with G. L., c. 53, § 68, if it bears the words "pledged to . . ." 

se° ratify. You rcquGst my opinion on a question arising out of the 

February 25. performaiice of your official duties in preparing the official 

ballot for use in the coming presidential primaries, at which 

delegates to the national conventions of political parties 

are to be elected. 

G. L., c. 53, § 68, provides, in part, that — 

The ballot shall also contain a statement of the preference, if any, of 
each candidate for delegate as to a candidate for nomination for presi- 
dent, provided that such statement appears in his nomination papers; . . . 

You state that nomination papers are now in circulation 
bearing the words "pledged to . . ." 

You ask to be advised as to whether or not the use of the 
statement in this form is permissible. 

The statement is unambiguous, and the words clearly 
and unmistakably indicate the candidate's preference and 
choice as to a candidate for nomination for president. 
In my judgment, the use of such a statement is, as a matter 
of law, permissible, and a candidate is entitled to have 
placed upon the ballot such a statement of his preference, 
upon his complying with the other provisions of said section 
68. It is not necessary that the word "preference" shall be 
used upon a nomination paper if a "statement" unmistaka- 
bly connoting the same meaning is used. 



jay r. benton, attorney-general. 377 

Constitutional Law — Rearrangement of the Con- 
stitution — Adoption of Rearranged Constitution. 

Under the Constitution an amendment may be made by initiative petition, by 

legislative substitute and by legislative amendment. 
The Legislature has no power to initiate a new or revised constitution. 
The proposed rearrangement of the Constitution is not an amendment but a re- 

\-ision, and cannot, under the Constitution, be submitted to the voters by the 

Legislature. 

You have submitted to me Senate Resolve No. 54 of 1924, coramittee"on 

,, 11 .. /icii> j_- Constitutional 

and have asked my opmion upon the loUowmg questions Law. 
of law in relation thereto : — March 4. 

1. Is it constitutionally competent for the General Court to act upon 
the "Resolve to provide that the Rearrangement of the Constitution 
adopted by the voters in November, nineteen hundred and nineteen, 
amended to conform to existing law, shall be the Constitution of the 
Commonwealth" (Senate No. 54), under the provisions of article XLVIII 
of the amendments to the Constitution or under any other provision of 
the Constitution? 

2. Would the adoption of a revised or rearranged constitution l)e an 
amendment of the Constitution of the Commonwealth, within the mean- 
ing of article XIjVIII of the amendments to said Constitution? 

3. May a revised or rearranged constitution be constitutionally adopted 
in any other manner than through the instrumentality of a constitutional 
convention? 

It is the official duty of the Attorney-General to advise a 
committee of the Legislature only with respect to such bills 
as may be actually pending before it. Ill Op. Atty. Gen. 
Ill; VI Op. Atty. Gen. 147. Cf. G. L., c.l2, § 9. The 
justices of the Supreme Judicial Court, in rendering opinions 
under Mass. Const., pt. 2d, c. Ill, art. II, follow a similar 
rule. Opinions of the Justices, 122 Mass. 600; 226 Mass. 
607, 612. Your first question relates directly to a measure 
pending before you, and hence requires full consideration. 
Your second and third questions are general in form, but 
you state that they are asked in connection with the pending 
resolve. For that reason, I shall treat them as incidental 
to the main inquiry in your first question. 

Furthermore, I assume that your questions refer solely 



378 OPINIONS OF THE ATTORNEY-GENERAL. 

to the authority of the General Court under the existing Con- 
stitution and to the operation and effect of that instrument. 
In response to an inquiry concerning possible methods of 
amending the Constitution, the justices of the Supreme 
Judicial Court, in an opinion rendered in 1833 (Opinion of 
the Justices, 6 Cush. 573, 574), said: — 

The court do not understand, that it was the intention of the house 
of representatives, to request their opinion upon the natural right of the 
people in cases of great emergency, or upon the obvious failure of their 
existing constitution to accomplish the objects for which it was designed, 
to provide for the amendment or alteration of their fundamental laws; 
nor what would be the effect of any change and alteration of their con- 
stitution, made under such circumstances and sanctioned by the assent 
of the people. Such a view of the subject would involve the general 
question of natural rights, and the inherent and fundamental principles 
upon which civil society is founded, rather than any question upon the 
nature, construction, or operation of the existing constitution of the com- 
monwealth, and the laws made under it. We presume, therefore, that 
the opinion requested applies to the existing constitution and laws of the 
commonwealth, and the rights and powers derived from and under them. 

Accordingly, I discard from consideration all question 
of the validity of legislative action under altered con- 
stitutional conditions, or of the possible efficacy of un- 
authorized legislative action by virtue of hypothetical 
future happenings. 

I also assume, from the form of your questions and the 
caption of the resolve, which purports to provide that the 
rearrangement "shall be the Constitution of the Common- 
wealth," that the very essence of the proposed measure is 
the substitution of a new for an existing constitution, and 
that the term "revised or rearranged constitution," as you 
use it, means such a substituted constitution. 

What are the provisions in the existing Constitution for 
its amendment, revision or rearrangement? 

In the Constitution originally adopted there are two 
references to possible changes. The first is in article VII 
of the Bill of Rights, providing that — 



JAY R. BENTON, ATTORNEY-GENERAL. 379 

Therefore the people alone have an incontestable, unalienable, and in- 
defeasible right to institute government; and to reform, alter, or totally 
change the same, when their protection, safety, prosperity, and happiness 
require it. 

The second is in chapter VI, article X, of the Frame of 
Government, which provides that — 

In order the more effectually to adhere to the principles of the consti- 
tution, and to correct those violations which by any means may be made 
therein, as well as to form such alterations as from experience shall be 
found necessary, — 

the General Court in 1795 shall take steps for the calling 
of a constitutional convention to consider revising or 
amending the Constitution. 

No convention was called in 1795, as directed by that 
provision, but in 1820 a convention was held which sub- 
mitted to the people a number of amendments, of which 
nine were adopted, becoming the first nine articles of 
amendment to the Constitution. The ninth amendment 
provided for amendments to the Constitution, in the 
following terms : — 

If, at an> time hereafter, any specific and particular amendment or 
amendments to the constitution be proposed in the general court, and 
agreed to by a majority of the senators and two- thirds of the members 
of the house of representatives present and voting thereon, such proposed 
amendment or amendments shall be entered on the journals of the two 
houses, with the yeas and nays taken thereon, and referred to the general 
court then next to be chosen, and shall be published; and if, in the general 
court next chosen as aforesaid, such proposed amendment or amendments 
shall be agreed to by a majority of the senators and two-thirds of the 
members of the house of representatives present and voting thereon, then 
it shall be the duty of the general court to submit such proposed amend- 
ment or amendments to the people; and if they shall be approved and 
ratified by a majority of the qualified voters voting thereon, at meetings 
legally warned and holden for that purpose, they shall become part of 
the constitution of this commonwealth. 

Articles X to XLIV, inclusive, of the amendments were 
adopted under the provisions for amendment made by 
article IX. 



380 OPINIONS OF THE ATTORNEY-GENERAL. 

Another constitutional convention was held in 1853. 
This convention submitted to the people a revised con- 
stitution, which was rejected by them. 

Articles XLV to LXVI, inclusive, of the amendments 
were submitted to the people by the Constitutional Con- 
vention of 1917, and were adopted at subsequent elections 
in 1917 and 1918. The forty-eighth amendment repealed 
the ninth amendment, substituting therefor provisions for 
amendment by initiative petition as well as by proposals 
introduced in the Legislature. The sixtj-'-seventh and 
last amendment was submitted to the people under the 
provisions for amendment contained in the forty-eighth 
amendment, and was approved in 1922. 

The forty-eighth amendment is known as the Initiative 
and Referendum Amendment. It begins with the following 
declaration of principle : — 

Legislative power shall continue to be vested in the general court; 
but the people reserve to themselves the popular initiative, which is the 
power of a specified number of voters to submit constitutional amend- 
ments and laws to the people for approval or rejection; and the popular 
referendum, which is the power of a specified number of voters to submit 
laws, enacted by the general court, to the people for their ratification or 
rejection. 

Then follow provisions which are grouped under three 
general headings: ''The Initiative," ''The Referendum" 
and "General Provisions." The provisions relating to 
constitutional amendments are contained under the heading 
"The Initiative." 

Subdivision II of that heading states the requirements 
with respect to the contents and mode of originating initi- 
ative petitions and their transmission to the General 
Court, providing that certain excluded matters specified 
in section 2 shall not be proposed by such a petition. Sub- 
division III, section 2, provides for the submission to the 
people of a legislative substitute for any measure introduced 
by initiative petition. The measures proposed by initiative 
petitions may be either constitutional amendments or laws. 



JAY R. BENTON, ATTORNEY-GENERAL. 381 

Subdivision IV is entitled "Legislative Action on Proposed 
Constitutional Amendments." The provisions of that 
subdivision are as follows : — 

Section 1 . Definition . — A proposal for ameudmeut to the constitu- 
tion introduced into the general court by initiative petition shall be desig- 
nated an initiative amendment, and an amendment introduced by a 
member of either house shall be designated a legislative substitute or a 
legislative amendment. 

Section 2. Joint Session. — If a proposal for a specific amendment of 
the constitution is introduced into the general court by initiative petition 
signed by not less than twentj^-five thousand qualified voters, or if in 
case of a proposal for amendment introduced into the general court by 
a member of either house, consideration thereof in joint session is called 
for by vote of either house, such proposal shall, not later than the second 
Wednesday in June, be laid before a joint session of the two houses, at 
which the president of the senate shall preside; and if the two houses 
fail to agree upon a time for holding any joint session hereby required, 
or fail to continue the same from time to time until final action has been 
taken upon all amendments pending, the governor shall call such joint 
session or continuance thereof. 

Section 3. Amendment of Proposed Ameyidments. — A proposal for 
an amendment to the constitution introduced bj^ initiative petition shall 
be voted upon in the form in which it was introduced, unless such amend- 
ment is amended by vote of three-fourths of the members voting thereon, 
in joint session, which vote shall be taken by call of the yeas and nays if 
called for by any member. 

Section 4. Legislative Action. — Final legislative action in the joint 
session upon any amendment shall be taken only by call of the yeas and 
nays, which shall be entered upon the journals of the two houses; and 
an unfavorable vote at any stage preceding final action shall be verified 
by call of the yeas and nays, to be entered in like manner. At such joint 
.session a legislative amendment receiving the affirmative votes of a ma- 
jority of all the members elected, or an initiative amendment receiving 
the affirmative votes of not less than one-fourth of all the members elected, 
shall be referred to the next general court. 

Section 5. Submission to the People. — If in the next general court a 
legislative amendment shall again be agreed to in joint session by a 
majority of all the members elected, or if an initiative amendment or a 
legislative substitute shall again receive the affirmative votes of at least 
one-fourth of all the members elected, such fact shall be certified by the 
clerk of such joint session to the secretary of the commonwealth, who shall 
submit the amendment to the people at the next state election. Such 



382 OPINIONS OF THE ATTORNEY-GENERAL. 

amendment shall become part of the constitution if approved, in the case 
of a legislative amendment, by a majority of the voters voting thereon, 
or if approved, in the case of an initiative amendment or a legislative 
substitute, by voters equal in number to at least thirty per cent of the 
total number of ballots cast at such state election and also by a majority 
of the voters voting on such amendment. 

By subdivision VIII under the heading "General Pro- 
visions" article IX of the amendments to the Constitution 
is annulled. 

By the terms of the provisions quoted above it will be 
seen that a constitutional amendment may be made in 
one of three ways, — (1) by initiative petition; (2) by 
legislative substitute; and (3) by legislative amendment. 
When the requirements governing the methods of proposal 
have been complied with, and when the amendment has 
been approved by the people in accordance with the pro- 
visions of section 5, "such amendment shall become part 
of the constitution." 

Aside from the provision in article VII of the Bill of Rights, 
declaring the right of the people to reform, alter or totally 
change their government, the only provisions contained 
in the existing Constitution for making changes therein 
are in the forty-eighth amendment. This amendment 
speals only of amendments to the Constitution. If, then, 
a "revision" or a "rearrangement" of the Constitution means 
something different from an amendment, there is no pro- 
vision in the forty-eighth amendment for such a change. 

The meaning of the words "rearrangement" and "revision" 
received careful consideration in Opinion of the Justices, 
233 Mass. 603, and in Loring v. Young, 239 Mass. 349. 
According to the views there expressed, "rearrangement" 
means a change in form without change in substance, while 
"revision" means a change in substance as well as form 
and contemplates the substitution of the new for the 
old. The word "amendment," on the other hand, what- 
ever else it may connote, at least implies that one thing 
is to be altered or added to by another. It presupposes 



JAY R. BENTON, ATTORNEY-GENERAL. 383 

an existing structure. Shields v. Barrow, 17 How. 130, 
144; Gagnon v. United States, 193 U. S. 451, 457. It 
contemplates that, upon adoption, the thing so designated 
shall become a part of that pre-existing structure. An 
amendment is not a self-supporting entity. It must be 
an amendment to something. It is incapable of existing 
in vacuo. 

Both a revision and a rearrangement which substitute 
a new constitution for the old are essentially different from 
an amendment. This was the conclusion of the justices 
in Opinion of the Justices, 233 Mass. 603, 609, and in both 
majority and minority opinions in Loring v. Young, 239 
Mass. 349, 373, 375, 380, 400. In chapter VI, article X, 
of the original Constitution the words "revision" and 
"amendment" are used disjunctively, and in Gen. St. 1916, 
c. 98, relative to the calling and holding of a constitutional 
convention, the purpose of the proposed convention is 
stated to be "to revise, alter or amend the constitution of 
the commonwealth," and the delegates were authorized 
to "take into consideration the propriety and expediency 
of revising the present constitution of the commonwealth, 
or making alterations or amendments thereof." 

I conclude, therefore, that the power to amend the Con- 
stitution is different from the power to establish a new 
constitution superseding and replacing the old. The 
power to amend the Constitution is the power to add to 
or alter, but not to supersede. That the power conferred 
upon the General Court by the forty-eighth amendment 
to the Constitution is the power to initiate amendments 
to the Constitution, not to initiate a revision of that Con- 
stitution, seems to me beyond question. Amendments 
are to be submitted to the voters; and such amendments 
are to "become part of the Constitution if approved." 

Senate Resolve No. 54 is entitled "Resolve to provide 
that the Rearrangement of the Constitution adopted by the 
voters in November, nineteen hundred and nineteen, 
amended to conform to existing law, shall be the Con- 



384 OPINIONS OF THE ATTORNEY-GENERAL. 

stitution of the Commonwealth"; and purports to propose 
''articles of amendment" providing that ''the Constitution 
or form of government of the Commonwealth of Massa- 
chusetts, adopted in seventeen hundred and eighty, and 
the sixty-seven articles of amendment thereto, are hereby 
deemed and taken to be revised, altered and amended 
by the Rearrangement of the Constitution adopted by the 
voters at the State election in November, nineteen hundred 
and nineteen, which is hereby declared to be the Con- 
stitution of the Commonwealth of Massachusetts," with 
certain specified amendments thereto; and that "the 
Constitution or form of government for the Common- 
wealth of Massachusetts will then be as follows." 

The court held in Loring v. Young, 239 Mass. 349, that 
the Rearrangement of the Constitution submitted to the 
voters in 1919 contained changes in substance as compared 
with the Constitution of 1780 and its amendments, that the 
Rearrangement, however, provided that in case of conflict 
the old Constitution and its amendments should prevail, 
that the voters did not intend to adopt a new form of govern- 
ment, and that, accordingly, the old Constitution and its 
amendments was still the fundamental law. It is this 
very Rearrangement, set out anew in Senate Resolve 
No. 54, with some amendments introducing further changes 
in substance, as to which my opinion is now required. 

The proposed resolve is, in my opinion, open to the 
objection that it is a revision of the Constitution rather 
than an amendment. Such is the plain purport of the 
provisions that the so-called "Rearrangement" "is hereby 
declared to be the Constitution of the Commonwealth of 
Massachusetts" and that "the Constitution or form of 
government for the Commonwealth of Massachusetts will 
then be as follows." It proposes to substitute a new con- 
stitution for the old. In my opinion, therefore, this "Re- 
arrangement" is not within the terms of the amending 
power, as defined in the forty-eighth amendment. 

As I have said, the Constitution provides no method for 



JAY R. BENTON, ATTORNEY-GENERAL. 385 

making changes in it, except as set out in the forty-eighth 
amendment, unless such provision is to be found in the 
seventh article of the Bill of Rights. By virtue of this 
declaration, the court has intimated that "the people of 
the Commonwealth have under the Constitution the right 
to alter their frame of government according to orderly 
methods as provided by law, and through the medium of 
an act of the Legislature," and that therefore the calling 
of a constitutional convention may be sanctioned by the 
Constitution. Opinion of the Justices, 226 Mass. 607, 610. 
See also Opinion of the Justices, 6 Cush. 573. 

But this does not mean that the Legislature may initiate 
a revision of the Constitution. It has no inherent power 
to submit to the people for ratification a new constitution, 
nor can such a proceeding be supported either by custom 
or as an orderly method provided by law. See Jameson 
on Constitutional Conventions, 4th ed., §§ 570 and 574 h. 
The proposing of constitutional amendments or of new 
constitutions is hardly to be deemed a normal exercise of 
legislative function, authority for which may be sought and 
found in the general grant of legislative power under the 
Constitution. 1 Deb. Mass. Conv. 1820, pp. 405, 407. 
See Jameson on Constitutional Conventions, 4th ed., §§ 549 
and 55L A suggestion has been made that the Legislature, 
in passing a legislative amendment, should be regarded as 
a constitutional convention, because the proposal must 
be acted upon in a joint session of the Legislature. But 
the distinction between a joint session of the Legislature 
and a constitutional convention is, to my mind, both clear 
and fundamental. A constitutional convention is perhaps 
the most solemn, deliberate and highest assembly which 
can be convened in this Commonwealth. Sproule v. 
Fredericks, 69 Miss. 898. Constitutional conventions have 
been held only three times since the adoption of the Con- 
stitution in 1780. Delegates are elected to a constitutional 
convention for the sole purpose of determining whether the 
Constitution shall be revised, altered or amended. Legis- 



386 OPINIONS OF THE ATTORNEY-GENERAL. 

lative sessions are held annually. Members of the Legis- 
lature are elected for the important purpose of enacting 
all manner of wholesome and reasonable laws for the general 
welfare of the people. It was never contemplated that the 
duties of the two bodies should be merged in the General 
Court, or that the Legislature, of its own initiative, should 
have the right to submit a new constitution to the people. 
My answer to your first question is therefore in the 
negative. Reiterating, to avoid the possibility of mis- 
understanding, that I interpret your questions as referring 
to the existing Constitution and to the rights and powers 
derived therefrom, and that by a "revised or rearranged 
constitution" you mean a new constitution substituted in 
place of and superseding the constitution now in force, what 
I have already said covers your second and third questions. 



1924 
March 22 



Constitutional Law — Taxation of Legacies and 
Successions — Uniting Interests passing to 
One Beneficiary. 

a statute amending G. L., c. 65, § 1, as amended, so as to provide that all interests 
in property passing or accruing to the same beneficiary, by any of the methods 
therein specified, shall be united and treated as a single interest for the pur- 
pose of determining the tax thereunder, would be constitutional. 

Governor. You have transmitted to me for examination and report 

House Bill No. 146, entitled "An Act providing for uniting 
interests in connection with the taxation of legacies and 
successions" and reading as follows: — 

Section one of chapter sixty-five of the General Laws, as amended by- 
chapter three hundred and forty-seven and by section one of chapter four 
hundred and three both of the acts of nineteen hundred and twenty-two, 
is hereby further amended by adding at the end thereof the following 
new paragraph : — All property and interests therein which shall pass 
from a decedent to the same beneficiary by any one or more of the methods 
hereinbefore specified and all beneficial interests which shall accrue in 
the manner hereinbefore provided to such beneficiary on account of the 
death of such decedent shall be united and treated as a single interest for 
the purpose of determining the tax hereunder. 



JAY R. BENTON, ATTORNEY-GENERAL. 387 

G. L., c. 65, § 1, as amended by St. 1922, c. 347 and c. 
403, § 1, omitting the table of rates, is as follows: — 

All property within the jurisdiction of the commonwealth, corporeal 
or incorporeal, and any interest therein, belonging to inhabitants of the 
commonwealth, and all real estate within the commonwealth or any in- 
terest therein and all stock in any national bank situated in this common- 
wealth or in any corporation organized under the laws of this common- 
wealth belonging to persons who are not inhabitants of the commonwealth, 
which shall pass by will, or by laws regulating interstate succession, or 
by deed, grant or gift, except in cases of a bona fide purchase for full con- 
sideration in money or money's worth, made in contemplation of the 
death of the grantor or donor or made or intended to take effect in pos- 
session or enjoyment after his death, ajid any beneficial interest therein 
which shall arise or accrue by survivorship in any form of joint owner- 
ship in which the decedent joint owner contributed during his life any 
part of the property held in such joint ownership or of the purchase price 
thereof, to any person, absolutely or in trust, except to or for the use of 
charitable, educational or religious societies or institutions, the property 
of which is by the laws of the commonwealth exempt from taxation, or 
for or upon trust for any charitable purposes to be carried out within the 
commonwealth, or to or for the use of the commonwealth or any town 
therein for public purposes, shall be subject to a tax at the percentage 
rates fixed by the following table: 

Provided, however, that no property or interest therein, which shall 
pass or accrue to or for the use of a person in Class A, except a grandchild 
of the deceased, unless its value exceeds ten thousand dollars, and no 
other property or interest therein, unless its value exceeds one thousand 
dollars, shall be subject to the tax imposed by this chapter, and no tax 
shall be exacted upon any property or interest so passing or accruing 
which shall reduce the value of such property or interest below said 
amounts. 

The table of rates gives different percentages, from one 
per cent to twelve per cent, varying with the value of the 
property or interest and with the class of relationship. 

This section imposes a legacy and succession tax on 
property and interests therein, subject to the limitations and 
exceptions therein provided, passing or accruing either (1) 
by will, or (2) by laws regulating intestate succession, or 



388 OPINIONS OF THE ATTORNEY-GENERAL. 

(3) by deed, grant or gift made in contemplation of the death 
of the grantor or donor, or (4) by deed, grant or gift made 
or intended to take effect in possession or enjoyment after 
his death, or (5) by sm-vivorship in any form of joint owner- 
ship to which the decedent contributed. 

In cases which have been before the court the Com- 
missioner of Corporations and Taxation has assessed taxes 
on property and interests therein passing or accruing to 
a single person by more than one of the methods specified 
in section 1, treating the different interests as a whole for 
the purpose of determining the rate and amount of the 
tax and the exemption. In Marble v. Treasurer and Receiver 
General, 245 Mass. 504, taxes so assessed upon property 
passing under a will and an interest in joint savings bank 
deposits were held to be vahd; and in Pratt v. Dean, 246 
Mass. 300, taxes so assessed upon property passing by will 
and beneficial interests in trusts created during the testator's 
lifetime, taking effect in enjoyment after his death, were 
sustained by the court. In these cases the court intimates 
that the rule would be different in the case of an interest 
vesting in enjoyment or possession independently of the 
death of the donor or testator. Therefore, as the statute 
now stands it would be doubtful whether a gift made in 
contemplation of death could be united with property 
passing in the other ways described in section 1 , for the pur- 
pose of assessing the tax thereunder. Apparently, also, it 
would be doubtful whether a future interest could be so 
united; although in Moors v. Treasurer and Receiver General, 
237 Mass. 254, taxes which seem to have been assessed in 
that way were approved. The proposed amendment 
relieves the uncertainty and provides a uniform rule ap- 
plicable to all the cases specified in section 1. 

In my opinion, the proposed law, if enacted, would be 
constitutional. 



jay r. benton, attorney-general. 

Pilots — Suspension — Revocation of Commission — 
"Active Service." 

Under the statutes, a commissioner of pilots may suspend a pilot whom he finds 
to be guilty of misconduct, carelessness or neglect of duty, and he may revoke 
the pilot's commission only with the concurrence of the trustees of the Boston 
Marine Society. 

Under the rules and regulations for pilotage for the Fourth Pilot District a pilot 
holding a commission for service there may not be suspended except for mis- 
conduct, carelessness or neglect of duty. 

Such a pilot, if not under suspension or leave of absence, is in active service, and 
should be assigned to pilotage duty. 



389 



To the Com- 



You ask my opinion regarding the extent of your powers ,a?ssioner°" 
under St. 1923, c. 390, to suspend or revoke the commissions }924' 
of pilots in your district and to assign them to duty. -^ ' 

St. 1923, c. 390, made many important changes in the 
previous law as to pilots, contained in G. L., c. 103. Section 
1 of said chapter 390 strikes out the first fourteen sections 
of said chapter 103 and substitutes therefor six sections, which 
provide, among other things, in substance, for the division 
of the shore line of the Commonwealth into four districts, 
the appointment of commissioners and deputy commissioners 
of pilots therefor, the formulation of rules and regulations 
for pilotage and establishment of rates, the granting of 
commissions to pilots, their suspension, and the revocation 
of their commissions. 

Under the previous law pilots, except for the harbor of 
Boston, might be removed only by the Governor and 
Council. G. L., c. 103, §§ 6-11, 13. This provision was 
changed by the statute of 1923. G. L., c. 103, § 3, as thus 
amended, is as follows : — 

The commissioners, subject to the approval of the trustees of said 
society, shall formulate rules and regulations for pilotage and establish 
rates within their respective districts, . . . The commissioners also, in 
accordance with such rules and regulations, shall grant commissions as 
pilots for their districts or for special locations therein, to such persons 
as they consider competent; provided that for district one such persons 
shall first be approved by said trustees. The commissioners may, upon 
satisfactory evidence of his misconduct, carelessness or neglect of duty, 
suspend any such pilot until the next meeting of said trustees and may 



390 OPINIONS OF THE ATTORNEY-GENERAL. 

thereafter continue such suspension until the close of the next stated 
meeting of said trustees, but no longer for the same offense. If said 
trustees decide at either of said meetings that the commission of such 
pilot ought to be revoked, the commissioners may revoke it at any- 
time after said decision is rendered and before it is reversed. The com- 
missioners shall cause the laws and regulations for pilotage within their 
district to be duly observed and executed, and shall receive, hear and 
determine complaints by and against pilots for said district. 

The society therein referred to is the Boston Marine Society, 
and the trustees are the trustees of that society. 

On the subject of commissions of pilots St. 1923, c. 390, 
§ 6, further provides : — 

. . . But nothing herein contained shall affect the commissions of 
pilots of any kind, except that after this act takes effect they may be 
removed for the causes specified and in the manner provided in section 
three of said chapter one hundred and three, as amended by this act. . . . 

These provisions make it clear that the pilots in your 
district may be removed and their commissions revoked 
by the Commissioner in the way, and only in the way, 
provided by section 3, quoted above. The Commissioner 
may, upon satisfactory evidence of the misconduct, care- 
lessness or neglect of duty of a pilot, suspend such pilot 
until the next meeting of the trustees of the Boston Marine 
Society, and may continue such suspension thereafter until 
the close of the next stated meeting of the trustees. If the 
trustees decide at either of those meetings that the com- 
mission of the pilot ought to be revoked, the Commissioner 
may then revoke it. The Commissioner's power, there- 
fore, is limited to suspending, in the first instance, a pilot 
whom he finds to be guilty of misconduct, carelessness or 
neglect of duty, and he may revoke the pilot's conmiission 
only after the trustees of the Boston Marine Society have 
decided that the commission ought to be revoked. He has 
no power to suspend a pilot except upon such a finding. 

In the case of Lunt v. Damson, 104 Mass. 498, 502, the 
meaning of the words "misconduct, carelessness or neglect 



JAY R. BENTON, ATTORNEY-GENERAL. 391 

of duty," as used in a similar statute, was considered by the 
court, and the court said : — 

The causes of removal are very general and indefinite, — "misconduct, 
carelessness or neglect of duty." It is only requisite that the evidence 
of either of these should be satisfactory to the commissioners. From the 
nature of the case, this involves not merely the credibility and sufficiency 
of the proof of the facts relating to the conduct of the pilot, but also the 
question whether the facts so proved furnish satisfactory evidence of 
misconduct, carelessness or neglect of duty. The propriety of the con- 
duct of a pilot, in the performance of his official duties, as observed by 
the commissioners or shown by evidence brought to them, can be judged 
of best by men having constant familiarity with the circumstances and 
requirements of the service. If from neglect, inattention, or any want 
of faithfulness, the service of a pilot should fall short of that which is due 
to the responsibilities of the position, we think the terms of the statute 
would authorize the commissioners to regard that deficiency as satis- 
factory evidence of carelessness or neglect of duty, although no specific 
act of misconduct should be alleged. 

You have submitted to me a copy of rules and regulations 
for pilotage for the Fourth Pilot District, formulated and 
approved as required by said section 3. Rules 1, 23 and 
24 are as follows : — 

1. All pilots shall hold themselves in readiness for pilotage service at 
all times, provided, however, that the Commissioner may grant permis- 
sion for leave of absence from such duty in his discretion. 

23. All pilots in active service shall be assigned to pilotage duty by the 
Commissioner. The work shall be apportioned equally among said 
pilots, and all income from said pilotage, after deducting the necessary 
expenses incident to the work of pilotage, shall be equally divided among 
said pilots every thirty days. 

24. Any pilot proven to have violated these regulations, or the state 
laws which accompany them, except for reasons which meet with appro- 
bation of the Commissioner, shall be liable to suspension. 

The words "in active service," as used in rule 23 with 
reference to pilots, naturally designate all pilots not under 
suspension or leave of absence as provided by rule 1, and 



392 OPINIONS OF THE ATTORNEY-GENEEAL. 

in the absence of information as to a different practical 
construction I so construe them. It is my judgment that 
a pilot holding a commission for service in your district 
may not be suspended by you except for misconduct, 
carelessness or neglect of duty, and that, since the passage 
of the statute of 1923 and the adoption of the rules and 
regulations, such a pilot, if he is not under suspension or 
leave of absence, is in active service within the meaning 
of those words as used in rule 23, and should be assigned 
by you to pilotage duty. 

You also ask with respect to a pilot who has been out of 
active service in local waters for some period of time, 
whether you have the power to assign him to go along with 
another pilot of experience, and under his guidance, for a 
number of trips sufficient to enable him to familiarize 
himself with any changes which may have occurred in those 
waters since the time of his last service. 

Rule 23 requires you to assign all pilots in active service 
to pilotage duty. The words "pilotage duty," as used in 
rule 23, plainly mean the duty of acting as pilot for vessels 
entering or leaving the waters within the district. See 
State V. Turner, 34 Ore. 173; Maclachlan's Law of Merchant 
Shipping, 6th ed., p. 207. For performing this service a 
pilot is entitled to receive pilotage fees. It is no part of 
the duty of a pilot either to instruct or to receive instruction 
from another pilot. The powers and duties of pilots and of 
the Commissioner are determined by the statutes and the 
rules and regulations, but they contain no provision for the 
instruction of pilots. I am therefore of the opinion that 
you have no power to assign the pilot you refer to to serve 
with and under the guidance of another pilot. 

I do not, of course, intimate that the pilot you mention 
has no duty in the premises. He is by statute made liable 
for all damages accruing from his negligence, unskilfulness 
or unfaithfulness. G. L., c. 103, § 18. If, owing to absence, 
he has become unfamiliar with the waters in his district, 
it would seem a natural precaution that he should make 



JAY R. BENTON, ATTORNEY-GENERAL. 393 

himself familiar with them. This duty is well stated in 
Atlee V. Packet Co., 21 Wall. 839, 396, 397, as follows: — 

In the active life and changes made by the hand of man or the action 
of the elements in the path of his vessel, a year's absence from the scene 
impairs his capacity, his skilled knowledge, very seriously in the course 
of a long voyage. He should make a few of the first "trips," as they are 
called, after his return, in company with other pilots more recently fa- 
miliar with the river. 



District Attorneys — Traveling Expenses — Other 

Expenses. 

Except in Suffolk County, traveling expenses of district attorneys and assistant 
district attorneys, necessarily incurred in the performance of their official 
duties, are to be paid by the Commonwealth and not by the county. 

All other expenses necessarily incurred are to be paid by the county for the benefit 
of which they were contracted. 

You request my opinion whether traveling expenses of ^"Jjo^n^"^" 
district attorneys and assistant district attorneys are to and'xaxaHon. 
be paid by the Commonwealth or by the county for the ipriir. 
benefit of which they were contracted. 

G. L., c. 12, § 23, pro\ddes: — 

Except in the Suffolk district, district attorneys and assistant district 
attorneys shall receive for traveling expenses necessarily incurred in the 
performance of their official duties such sums as shall be approved by a 
justice of the superior court, to be paid by the commonwealth. 

Section 24 of the act provides : — 

A district attorney, in the name of any county in his district, may 
contract such bills for stationery, experts, travel outside of the common- 
wealth by witnesses required by the commonwealth in the prosecution of 
cases, for necessary expenses incurred by officers under his direction in 
going outside of the commonwealth for the purpose of searching for or 
bringing back for trial persons under indictment in said county, and for 
such other expenses as may in his opinion be necessary for the proper 
conduct of his office in the investigation of or preparation and trial of 
criminal causes; and all such bills shall be paid by the county for the 
benefit of which they were contracted upon a certificate by the district 



394 OPINIONS OF THE ATTORNEY-GENERAL. 

attorney that they were necessarily incurred in the proper performance 
of his duty, and upon approval of the auditor of Suffolk county if the 
bills were incurred for said county, otherwise upon the approval of the 
county commissioners or of a justice of the superior court. 

The two sections must be read together. So read, they 
clearly differentiate between traveling expenses of district 
attorneys and assistant district attorneys and other ex- 
penses incurred by such officers. Accordingly I am of the 
opinion that, except in Suffolk County, traveling expenses 
of district attorneys and assistant district attorneys neces- 
sarily incurred in the performance of their official duties 
are to be paid by the Commonwealth and not by the county. 
All other expenses incurred by the district attorney, which 
in his opinion are necessary for the proper conduct of his 
office in the investigation of or preparation and trial of 
criminal causes, are to be paid by the county for the benefit 
of which they were contracted. 



Board of Registration in Pharmacy — Agent — Powers 
— Inspection of Drug Stores — Right to use 
Force — Taking of Samples. 

The inspection of drug stores, which an agent of the Board of Registration in 
Pharmacy may make, must be reasonable, with a view to accomplishing the 
purpose of the statute. 

Opening closets, pulling out drawers and examining the contents of cans, jugs and 
other containers is a reasonable mode of inspection. 

Such agent may probably not use force to gain entry to a drug store for the pur- 
pose of making an inspection. 

If peaceable entry is obtained, an inspection may probably be made against the 
owner's will. 

Right to take samples is not incidental to or part of the right to inspect. 

The agent of the Board of Registration in Pharmacy may not take samples with- 
out the consent of the person in charge of the store. 

Department of ^^ behalf of the Board of Registration in Pharmacy you 
'^iga/®''"'"'®- ask my opinion on questions of law relative to the powers 
of the agent of that board appointed under G. L., c. 13, § 25, 
as amended by St. 1922, c. 441 . That act reads as follows : — 



April 8. 



JAY R. BENTON, ATTORNEY-GENERAL. 395 

The board (of registration in pharmacy) shall appoint and fix the com- 
pensation, with the approval of the governor and council, of an agent 
who shall be allowed his necessary traveling expenses. He shall inspect 
drug stores and make a daily report of his doings pertaining thereto, and 
report all violations of the laws relating to pharmacy . 

Your first question is as follows : 

Has the agent the power to open closets, pull out drawers, examine 
contents of cans, jugs and other containers in a drug store which he is 
engaged in inspecting? 

An inspection is "a strict or prying examination; a close 
or careful scrutiny; a critical examination; a formal or 
official inquiry by actual observation into the state, ef- 
ficiency, safety, quality, etc., of something of special moment, 
as drugs." Century Dictionary; 32 C.J. 930. 

In People v. Compagnie Generale Transatlantique, 107 
U. S. 59, 62, the court said: — 

What is an inspection? Something which can be accomplished by 
looking at or weighing or measuring the thing to be inspected, or apply- 
ing to it at once some crucial test. 

An inspection may be very general or it may be very 
minute. 32 C. J. 930. The manner in which an inspection 
shall be made depends entirely upon the requirements of 
the statute and the nature of the merchandise to be in- 
spected. 22 Cyc. 1366. It must be reasonable, of such a 
nature as to be of value and must have a rational connection 
with the end to be accomplished. Commonwealth v. Moore, 
214 Mass. 19. 

The statute in question provides that an agent of the 
Board of Registration in Pharmacy shall inspect drug stores 
and report all violations of the laws relating to pharmacy. 
The language of the act is comprehensive; its object is 
to protect and promote pubhc health. It is manifestly 
within the police power of the State. Commonwealth v. 
Moore, 214 Mass. 19; Commonwealth v. Wheeler, 205 Mass. 



396 OPINIONS OF THE ATTORNEY-GENERAL. 

384; Commonwealth v. Carter, 132 Mass. 12; Pittsburg & 
Southern Coal Co. v. Louisiana, 156 U. S. 590, 599. The 
inspection which may be made by the agent of the board 
must be reasonable, with a view to accompUshing the 
purpose of the statute. 

Taking into consideration the foregoing factors, I am of 
the opinion that opening closets, pulling out drawers and 
examining the contents of cans, jugs and other containers 
is a reasonable mode of inspection. Accordingly, I am of 
the opinion that your first question should be answered in 
the affirmative. 

The agent may, however, probably not use force to gain 
entry to a drug store for the purpose of making an in- 
spection. The cases sustaining the right of officers author- 
ized by statute to make entry for the purpose of inspection 
refer to peaceable entry. They do not hold that entry 
may be made by force against the will of the owner or 
occupant. Whether such entry would be lawful is left 
in doubt. See VI Op. Atty. Gen. 288. If, however, peace- 
able entry to the drug store has been obtained, the court 
seems to intimate that an inspection can be made even 
against the will of the owner. Commonwealth v. Smith, 
141 Mass. 135, 139. This question, however, is not free 
from doubt. 

Your second question is as follows : 

Can the agent take a sample of suspected illegal liquor for analysis, 
for presentation as evidence before the Board of Registration in Phar- 
macy, without the consent of the person in charge at the store? 

The right to take samples is not, in the absence of express 
authority, incidental to or part of the right to inspect. 
In Commonwealth v. Smith, 141 Mass. 135, 139, the court 
said : — 

The right to take samples of milk against the will of the owner can 
only be justified by an act of the Legislature regulating a business which 
otherwise might become injurious to the communit^^ 



JAY R. BENTON, ATTORNEY-GENERAL, 397 

This right cannot be extended beyond its express scope. 
Dunn V. Lowe, 203 Mass. 516; CommonxDealth v. Smith, 
141 Mass. 135, 139. Wherever in this Commonwealth 
samples may be taken by inspectors, the right has been ex- 
pressly conferred by statute. G. L., c. 94, § 304, specifically 
provides for the furnishing of samples of drugs to an officer 
or agent of the Department of Public Health upon tender 
of the value thereof. 

G. L., c. 13, § 25, as amended, does not authorize the 
taking of samples. I am therefore of the opinion that, in 
the absence of specific authorization, the agent of the board 
may not take samples, and that your second question should 
be answered in the negative. 



Plumbers — Apprentice — Journeyman — Probation- 
ary License. 

a person learning the business of plumbing may not lawfully be sent out to do the 
work of a journeyman plumber unless he is registered or has been licensed tvs 
required by G. L., e. 142, § 3, except that a person who has worked as an 
apprentice or under a verbal agreement for instruction, for not less than three 
years, and has complied with the requirements of G. L., c. 142, § 4, may have 
issued to him a probationary license under which he may be sent out to do 
the work of a journeyman. 

You request my opinion on questions of law arising out Exam?n!rs of 
of R. L., c. 103, § 9, and St. 1909, c. 536, § 2. ""i;^^^'''- 

The Revised Laws were supplanted by the General Laws, 
which took effect from and after December 31, 1920. G. L., 
c. 282, expressly repeals both R. L., c. 103, § 9, and St. 1909, 
c. 536, § 2. It is clear that it would serve no useful purpose 
to discuss questions of law involving the interpretation of 
statutes that have been repealed. I am, however, going 
to take the liberty of discussing the questions raised by you 
in the light of the provisions of the statutes that exist 
today in our General Laws. 

Your first question, revised, would read as follows: Does 



April 8. 



398 OPINIONS OF THE ATTOKNEY-GENERAL. 

G. L., c. 142, § 14, prohibit an apprentice or learner from 
working without a Ucense? 

Said section 14 reads as follows : — 

Sections one to sixteen, inclusive, shall apply to all persons learning 
the business of plumbing when they are sent out to do the work of a 
journeyman. 

Therefore, section 3 of said chapter 142 applies to persons 
learning the business of plumbing when they are sent out 
to do the work of a journeyman plumber. Said section 
3 prohibits any person from engaging in the business of 
working as a journeyman plumber unless he is lawfully 
registered or has been licensed by the examiners, as provided 
in this chapter; so that, answering your first question, a 
person learning the business of plumbing may not be sent 
out to do the work of a journeyman plumber unless he is 
lawfully registered or has been licensed. 

Your second question, revised, would read as follows: 
Does the probationary license, as described in and issued 
under G. L., c. 142, § 4, fill any gap left in G. L., c. 142, 
§14? 

So far as is pertinent to your inquiry said section 4 reads 
as follows : — 

The examiners may, without payment of any fee, issue a probationary 
license in force for six months to a person who, having worked as an 
apprentice, or under a verbal agreement for instruction, for not less than 
three years, presents an application therefor with the signed endorse- 
ment of his employer agreeing to be responsible for all work done under 
the license and to have the licensee, at the expiration of the license, pre- 
sent himself for examination as a journeyman. 

Consequently, as the law stands today, a person, having 
worked as an apprentice or under a verbal agreement for 
instruction, for not less than three years, and complying 
with the other requirements set forth above, may have 
issued to him a probationary Ucense under which he may 
be sent out to do the work of a journeyman. 



April 9. 



jay r. benton, attorney-general. 399 

Metropolitan Police Officer — Expenses as Witness 
— Reimbursement. 

a metropolitan police officer who attends as a witness in a criminal case at a place 
other than his residence, and whose attendance is not in the performance of 
the duties for which he is paid a salary, is entitled to a witness fee. 

In all other cases, with certain minor exceptions, the expenses of such officer, 
necessarily and actually disbursed by him for testifying in a cruuinal case 
in the Superior Court, should be paid by the county. If the case is tried in 
a district court or before a trial justice, such expenses should be paid by the 
town where the crime was committed. 

You request my opinion whether a metropolitan district po^utan ofstrict 
police officer who, by the order of the district attorney, i°J|^^"''°"' 
appeared as a witness in the Superior Court held at Brockton 
at the trial of a person charged with crime, and who incurred 
expenses in so appearing, is entitled to be reimbursed by the 
county where the trial was held. 

G. L., c 262, § 50, provides, in part: — 

No . . . 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 com- 
pensation ... for testifying as a witness in a criminal case during the 
time for which he received such salary or allowance; . . . but his ex- 
penses, necessarilj^ 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 . . . 

Section 52 provides : — 

Except in Suffolk county, the fees and expenses of officers in the appre- 
hension, trial or commitment of a person arrested or tried as a tramp or 
vagrant shall be paid by the county where the offence was committed. 

Section 53 provides, 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 wit- 
ness fee in the court or before the trial justice where he testifies. . . . 

In my opinion a metropolitan district police officer is 
included in the class of persons enumerated in section 50. 
Sections 56 and 57 have no application to such officer. 



400 



OPINIONS OF THE ATTORNEY-GENERAL. 



In construing R. L., c. 204, §§42 and 44, now G. L., c. 
262, §§ 50, 53, above referred to, the court said, in Sackett 
V. Sanborn, 205 Mass. 110, 112: — 

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 re- 
ceive further compensation by way of witness fees, but that any expenses 
necessarily 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 residence, then, . . . 
instead of their expenses they are to be allowed witness fees. 

I am accordingly of the opinion that if a metropolitan 
district police officer attends as a witness at a place other 
than his residence, and his attendance is not in the per- 
formance of the duties for which he is paid a salary or 
allowance, he is entitled to a witness fee in the court or before 
the trial justice where he testifies. In all other cases, with 
the exception of the cases referred to in G. L., c. 262, § 52, 
the expenses of such officer, necessarily and actually in- 
curred and actually disbursed by him for testifying as a 
witness in a criminal case tried in the Superior Court, 
should be paid by the county where the trial is held; and 
if the case is tried in a district court or before a trial justice, 
such expenses should be paid by the town where the crime 
was committed. 



To the House 
Committee on 
Bills in the 
Third Reading. 

1924 
April 10. 



Constitutional Law — Undertakers — Licenses — 
Registered Embalmers. 

a statute limiting the is.suance of undertakers' licenses to registered erabalmers 

would be unconstitutional. 
The presumption of constitutionalty does not attach to a bill not yet enacted into 

law. 

You request my opinion as to whether House Bill No. 615, 
with certain changes indicated by you, would be con- 
stitutional if enacted into law. 

House Bill No. 615 is entitled "An Act to require mider- 



JAY R. BENTON, ATTORNEY-GENERAL. 401 

takers to be registered embalmers," and, with the changes 
specified in your letter, would read as follows : — 

Chapter one hundred and fourteen of the General Laws is hereby 
amended by striking out section forty-nine and inserting in place thereof 
the following: — Section Jf9. Boards of health shall annually, on or 
before May first, license a suitable numljer of undertakers who can read 
and write the English language and who shall be registered embalmers. 
Such license shall be issued upon such terms and conditions as the board 
of health maj^ prescribe, and may be revoked at any time by the board 
if its terms or conditions or any requirements of law relative thereto have 
been violated by the undertaker. An undertaker so licensed may act 
in any town. Nothing herein contained shall prevent such board from 
granting a license to any person licensed as an undertaker prior to June 
first, nineteen hundred and twentj^-four. 

In Wyeth v. Board of Health of the City of Cambridge, 200 
Mass. 474, decided in 1919, the Supreme Judicial Court 
held that a regulation of the Board of Registration in Em- 
balming, requiring all undertakers to be licensed embalmers, 
was unconstitutional, and that the refusal of the respondents 
to grant to an applicant a license as an undertaker, solely 
upon the ground that the applicant was not a licensed 
embalmer, was an invasion of a constitutional immunity, 
to redress which a writ of mandamus would issue. In the 
course of the opinion Knowlton, C. J., speaking for the court, 
said : — 

We can see no such connection between requiring all undertakers to 
be licensed embalmers and the promotion of the public health as to bring 
the making of this regulation by the board of registration in embalming, 
or the refusal of a license bj'' the board of health on account of the regu- 
lation within the exercise of the police power by the State. If such a 
regulation had been made by an act of the Legislature, with all the strong 
presumptions of constitutionality which attach to legislative action, we 
should hesitate to affirm the constitutionality of the act. But action 
by such a board, under mere general authorit}^ to make rules and regu- 
lations, does not carry -ndth it these strong presumptions. We consider 
this action without foundation in law or reason, and in \dolation of the 
constitutional rights of our citizens. 

A statute of New York, which provided, among other things, that no 
person should engage in the business of undertaking unless he had been 



402 OPINIONS OF THE ATTORNEY-GENERAL. 

duly licensed as an embalmer, was held unconstitutional by a unanimous 
decision in the appellate division of the Supreme Court of that State. 
People V. Ringe, 125 App. Div. (N. Y.) 592. 

In the face of so clear an intimation of the opinion of 
the Supreme Judicial Court there appears little room for 
speculation in the present case. Further, the "strong pre- 
sumptions of constitutionality which attach to legislative 
action," referred to in the opinion, are inapplicable to a bill 
not yet enacted into law. The presumption is justified 
by the belief that the enactment of a law presupposes that 
the Legislature, in the light of its own knowledge and of the 
best legal advice available to it, has determined that author- 
ity to pass such a law is included within the powers delegated 
to it by the Constitution. To invoke the presumption 
during the consideration of a proposed enactment would 
be to destroy the very foundation upon which that pre- 
sumption rests. 

I am accordingly constrained to advise you that, in my 
opinion. House Bill No. 615, with the changes specified by 
you, if enacted into law would be unconstitutional. 



Highways — State Highways — Layout. 

Under St. 1922, c. 501, as amended by St. 1923, c. 481, providing for the laying 
out and construction, by the Division of Highways, of a highway in the city 
of Revere, the city cannot be required to make the layout, and no part of 
the cost may be assessed upon the county. 

A way does not become a State highway, under G. L., c. 61, until it has been "laid 
out and taken charge of" by the division in behalf of the Commonwealth. 

Since St. 1922, c. 501, as amended, does not require the division to take charge 
of the proposed highway, it was not intended to provide that the highway 
should be a State highway. 

m?ssionS''of" You request my opinion as to the proper procedure in 

PubHc Works. j^y.^g ^^^ ^^^ highway authorized by St. 1922, c. 501; 

^^^' and put the three following questions : — 

1. Shall it be laid out as a State highway under the provisions of G. L., 
c. 81? 

2. May the division require the city of Revere to make the layout? 



JAY R. BENTON, ATTORNEY-GENERAL. 403 

3. If laid out as a State highway, can 25 per cent of the cost be as- 
sessed upon the county, under the provisions of G. L., c. 81, § 9, as 
amended by St. 1921, c. 112, § 2, and St. 1923, c. 362, § 63? 

St. 1922, c. 501, as amended by St. 1923, c. 481, reads as 
follows : — 

Section 1. The division of highways of the department of public 
works is hereby authorized and directed to lay out and construct a high- 
way in the city of Revere beginning at the Maiden line on or near the 
present way leading from Revere to that part of the city of Maiden known 
as Linden and extending to Broadway in said city of Revere. The route 
of such layout and construction may be along existing public or private 
ways or over private land; provided that no work shall be done on the 
construction of said highway until satisfactory releases have been ob- 
tained from the owners for all land to be used for said highway without 
expense and that the city of Maiden shall have made the necessary ap- 
propriations and undertaken the construction of connections satisfactory 
to said division, said connection in Maiden to run from the Revere line 
through Linden square, Beach and Salem streets and over private labd 
to the Newburyport Turnpike. 

Section 2. For the purposes of this act, the division may expend a 
sum not exceeding one hundred thousand dollars. Of the total amount 
expended, one haU shall be assessed upon the metropolitan parks dis- 
trict and the balance shall be paid by the commonwealth from item num- 
ber six hundred and thirty-one of the general appropriation act of the 
current year. 

Section 2 was superseded by St. 1923, c. 494, item 623 b, 
which provides as follows : — 

For the construction of a highway in the city of Revere, as 
authorized by chapter five hundred and one of the acts of 
nineteen hundred and twenty- two, as amended by chapter 
four hundred and eighty-one of the acts of the present year, 
at a cost not exceeding one hundred thousand dollars, one 
half of which shall be assessed upon the metropolitan parks 
district, and the balance of fifty thousand dollars shall be 
paid from Motor Vehicle Fees Fund . . . .$50,000.00 

G. L., c. 81, entitled "State Highways," provides, in 
sections 4 to 12 inclusive, for the laying out of State high- 



404 OPINIONS OF THE ATTORNEY-GENERAL. 

ways by petition by county commissioners, aldermen or 
selectmen to the Division of Highways, determination by 
the division that public necessity and convenience require 
that the proposed way should be laid out and taken charge 
of by the Commonwealth, and the filing of a plan and 
certificate showing that the division has laid out and taken 
charge of the way in accordance with the plan. Provisions 
prescribing the method to be followed are contained in 
sections 4 and 5 as follows : — 

Section 4. If county commissioners, aldermen or selectmen adjudge 
that public necessity and convenience require that the commonwealth 
lay out and take charge of a new or existing way as a highway in whole 
or in part, in their county, city or town, they may apply, by a written 
petition, to the division, requesting that said way be laid out and taken 
charge of by the commonwealth. 

Section 5. If the division determines that public necessity and con- 
venience require that such way should be laid out or be taken charge of 
by the commonwealth, it shall file in the office 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 certifi- 
cate that it has laid out and taken charge of said way in accordance 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 high- 
way in accordance with said plan . . . 

Section 5 provides that "thereafter said way shall be a State 
highway, and shall be constructed by the division at the 
expense of the Commonwealth." 
Section 24 provides as follows : — 

The division may, whenever any money is appropriated by the general 
court for its use in the construction or improvement of any particular 
way, expend such money in constructing or improving the whole or such 
part of said way as it deems best, either upon the location of the existing 
way or upon any new location that may be established by the count}^ 
commissioners or the selectmen, and no part of the way so improved 
shall thereby become a state highway or be maintained as such. The 
division may, however, lay out the whole or any part of any such way as 
a state highway. 



JAY R. BENTON, ATTORNEY-GENERAL. 405 

Section 13 provides that "state highways shall be main- 
tained and kept in good repair and condition by the division 
at the expense of the Commonwealth," and section 18 pro- 
vides that "the Commonwealth shall be liable for injuries 
sustained by persons while traveling on state highways, 
if the same are caused by defects within the limits of the 
constructed traveled roadway, in the manner and subject 
to the limitations, conditions and restrictions specified in 
sections fifteen, eighteen and nineteen of chapter eighty- 
four," with certain exceptions therein specified. G. L., 
c. 84, § 1, provides that "highways and town ways shall, 
unless otherwise provided, be kept in repair at the expense 
of the town in which they are situated"; and section 15 
provides that the "county, city, town or person by law- 
obliged to repair the same" shall be liable in damages for 
injuries from defects therein. 

In view of the plain provisions in St. 1922, c. 501, as 
amended, authorizing and directing the Division of High- 
ways to lay out and construct the highway in question, 
and providing for payment of the cost of construction, 
one-half by the metropolitan parks district and the balance 
from the motor vehicle fees fund, it is my opinion that the 
division may not require the city of Revere to make the 
layout, and that no part of the cost may be assessed upon 
the county. I therefore answer your second and third 
questions in the negative. 

Your first question, whether the highway shall be laid 
out as a State highway under the provisions of G. L., c. 
81, depends upon the proper construction of St. 1922, c. 
501, as amended, in the light of general statutorj^ provisions. 
The answer requires consideration of the legislative intention 
with respect to the burden of maintenance and liability 
for injuries due to defects — whether it was intended that 
those obligations should be borne by the Commonwealth 
or by the local communities. If the former, then clearly 
the way is to be laid out as a State highway; otherwise not. 

The direction to the division is "to lay out and construct 



406 OPINIONS OF THE ATTORNEY-GENERAL. 

a highway, etc." The highway is not designated as a 
State highway, and the statute contains no direction to 
the division requiring it to take charge of the highway. In 
those respects the statute differs from other statutes pro- 
viding for the construction of other particular highways. 
See, for example, St. 1907, c. 574, providing that "the 
Massachusetts highway commission shall lay out, take 
charge of and construct as a state highway" a part of 
Washington Street in the West Roxbury district of Boston. 
The words "lay out," when used in statutes with reference 
to highways, mean locating and establishing a new highway. 
The imposition upon certain public authorities of the duty 
of laying out a highway does not necessarily carry with it 
the right of control by them and the further duty of main- 
taining that way when laid out and constructed. Foster 
V. Park Commissioners, 133 Mass. 321, 329, 333; Leahy v. 
Street Commissioners, 209 Mass. 316, 317. For that reason 
the words "take charge of" are used in G. L., c. 61, in con- 
junction with "lay out," and a way does not become a 
State highway under that chapter until it has been "laid 
out and taken charge of" by the division in behalf of the 
Commonwealth. I Op. Atty. Gen. 284. 

It is my opinion that the Legislature, in providing that 
the division shall lay out and construct the proposed high- 
way, did not intend to require the division also to take 
charge of and maintain the highways or to impose on the 
Commonwealth liability for injuries from defects therein, 
and that therefore it did not intend to provide that the 
highway so laid out and constructed should be a State 
highway. I therefore answer your first question in the 
negative. 



jay r. benton, attorney-general. 407 

Constitutional Law — Police Power — Restriction of 
Importation of Cattle. 

State laws requiring inspection of property intended for domestio use, passed for 
the protection of the public health, morals or safety, or to guard the public 
from fraud, are not open to attack as in contravention of the commerce clause 
of the Constitution of the United States unless they directly discriminate 
against interstate commerce or are inconsistent with Federal legislation under 
the commerce clause. 

A statute providing that no cattle which react to the tuberculin test shall be shipped 
into the Commonwealth would be in direct conflict with national legislation 
contained in the Act of February 2, 1903, c. 349, § 1 (32 Stat. 791), and would 
therefore be invalid. 

You have asked my opinion as to the constitutionaUty to the House 

•^ ^ •/ Committee on 

of House Bill No. 382, entitled "An Act to prevent the ^UJ^ciReading. 
shipment into the Commonwealth of diseased cattle." aSI\6. 
The bill provides for the amendment of G. L., c. 129, § 27, 
by adding at the end thereof the following : — 

No cattle to be used for dairy purposes shall be shipped into the com- 
monwealth unless such cattle have been given a tuberculin test, and 
declared to be free from dangerous diseases, by a competent veterinary 
surgeon, approved by the director. No cattle which react to the tuber- 
culin test shall be shipped into the commonwealth. 

The proposed law, if valid, evidently must be supported 
as a proper exercise of the State police power. If it is 
invalid, the objection to it must be that it is an unlawful 
interference with interstate commerce. State laws requiring 
inspection of property intended for domestic use, passed 
for the protection of the public health, morals or safety, or 
to guard the public from fraud, are not open to attack as 
in contravention of the commerce clause of the Constitution 
of the United States unless they directly discriminate 
against interstate commerce or are inconsistent with 
Federal legislation under the commerce clause. Plumley 
V. Massachusetts, 155 U.S. 461; Patapsco Guano Co. v. North 
Carolina, 171 U. S. 345; Savage v. Jones, 225 U. S. 501. 

The United States Supreme Court has held uncon- 
stitutional a statute restraining the importation of cattle 
into a State in such a way as to prevent the bringing in 



408 OPINIONS OF THE ATTORNEY-GENERAL. 

of cattle which are healthy as well as those that are diseased, 
on the ground that such legislation was in conflict with the 
commerce clause. Railroad Co. v. Husen, 95 U. S. 465. 
So, also, statutes in the guise of inspection laws employed 
to exclude the products and merchandise of other States 
have been held unconstitutional because they discriminated 
against interstate commerce. Minnesota v. Barber, 136 
U. S. 313; Voight v. Wright, 141 U. S. 62. On the other 
hand, it has held that a statute prohibiting transportation 
of cattle into a State without inspection by State or national 
officials was constitutional, such legislation not being in 
conflict with any act of Congress. Reid v. Colorado, 187 
U. S. 137; Ashell v. Kansas, 209 U. S. 251. 

I am of the opinion that the proposed law is in conflict 
with national legislation, to which it must yield. In the 
Act of February 2, 1903, c. 349, § 1 (32 Stat. 791), it is en- 
acted that when an inspector of the Bureau of Animal In- 
dustry has issued a certificate that he has inspected cattle 
or other livestock and found them free from infectious, con- 
tagious or communicable disease, ''such animals, so inspected 
and certified, may be shipped, driven, or transported . . . 
into . . . any state or Territory . . . without further 
inspection or the exaction of fees of any kind, except such 
as may at any time be ordered or exacted by the Secretary 
of Agriculture." Concerning this very statute the court 
said, in Asbell v. Kansas, supra, 258 : — 

There can be no doubt that this is the supreme law, and if the state 
law conflicts with it the state law must yield. 

The provision in the proposed law that "no cattle which 
react to the tuberculin test shall be shipped into the com- 
monwealth" appears to be in direct conflict with this pro- 
vision. 

In my opinion, therefore, the bill would not be valid if 
enacted, because of the superior authority of the Federal 
statute. 



jay r. benton, attorney-general. 409 

Hunting and Fishing — Certificate of Registration 
— Violation of Fish and Game Laws. 

Every certificate to hunt, trap and fish issued under G. L., c. 131, §§ 3-14, as 
amended, becomes void upon the conviction of the holder thereof of any 
violation of the fish and game laws, and no such certificate may be given to 
any person so convicted during the period of one year from the date of his 
conviction. 

You request my opinion on the following questions l^J^^^^,^"^!' 
relative to the granting and revocation of fishing and conservation. 
hunting certificates : — ApnM?. 

1. Under G. L., c. 131, § 14, would a person convicted of any violation 
of any section or any provision of a section of G. L., cc. 130 and 131, 
forfeit any fishing or hunting certificate he may possess? 

2. Would a conviction of a violation of a fish law or of a game law pre- 
vent a person from securing both a hunting and a fishing certificate dur- 
ing the period of one year following the conviction? 

3. Would a person who did not hold either a hunting or a fishing cer- 
tificate and who was convicted of a violation of any provision of chapters 
130 and 131 forfeit his right to secure a certificate for a period of one 
year from the date of his conviction? 

G. L., c. 131, §§ 3-14, as amended by St. 1921, c. 467, 
provide for three classes of certificates of registration, 
namely, a combination certificate to hunt, trap and fish, 
a certificate to hunt and trap, and a certificate to fish. 
Section 14, as amended by St. 1921, c. 467, § 8, provides, 
in part : — 

. . . Every certificate issued under sections three to fourteen, inclu- 
sive, held by any person convicted of a violation of the fish and game 
laws or of any provision of said sections, shall be void, and shall immedi- 
ately be surrendered to the officer securing such conviction. The officer 
shall forthwith forward the certificates to tlie director, who shall cancel 
the same, and notify the clerk issuing them of the cancellation thereof. 
No person shall be given a certificate under authority of said sections 
during the period of one year from the date of his conviction as afore- 
said. Any such certificate issued to a person within one year of his con- 
viction as aforesaid shall be void, and shall be surrendered on demand 
of any officer authorized to enforce the fish and game laws. . . . 



410 OPINIONS OF THE ATTORNEY-GENERAL. 

It is plain that under the statute every certificate issued 
under G. L., c. 131, §§ 3-14, as amended, becomes void 
upon the conviction of the holder thereof of any violation 
of the fish and game laws, and that no certificate of any class 
may under these sections be given to any person so convicted 
during the period of one year from the date of his con- 
viction. 

I am accordingly of the opinion that all of your questions 
should be answered in the affirmative. 



Tuberculosis Hospitals — Apportionment of Cost. 

In providing for an apportionment of the cost of a public undertaking among cities 
and towns or other political subdivisions of the Commonwealth benefited 
thereby, and also in shifting the burden thereof, the Legislature has a large 
measure of discretion, the exercise of which is not subject to judicial control, 
on constitutional grounds, unless it is purely arbitrary. 

A statute changing the previous law by including in the district served by the 
Essex County Tuberculosis Hospital cities previously exempted, and requir- 
ing them to bear a part of the burden of the cost of its construction and main- 
tenance, apportioned in a way which, under all the circumstances, would be 
fair and reasonable, would be constitutional. 

s^nSl You have submitted to me Senate Bill No. 468, entitled 

Ma^y 1 "An Act to enlarge the present tuberculosis hospital district 

within the county of Essex and to apportion certain costs 

incident thereto." and have requested my opinion on the 

following questions relative to said bill : — 

(1) Inasmuch as the cities in Essex county now exempt from the pro- 
visions of section seventy-eight to ninety of chapter one hundred and 
eleven of the General Laws have a majority of the registered voters who 
elect the trustees of the tuberculosis hospital for said county, does not 
such control constitute said cities actual parties in interest with respect 
to the financial cost and administration of said hospital? 

(2) Has the General Court the constitutional right to add to the Essex 
county tuberculosis hospital district, established under said sections 
seventy-eight to ninety, said cities now exempt, in the manner provided 
in the bill printed as Senate document number four hundred and sixty- 
eight? 



JAY R. BENTON, ATTORNEY-GENERAL. 411 

Sections 78 to 90, inclusive, of G. L., c. Ill, as amended 
by St. 1922, c. 393, contain provisions requiring the county 
commissioners of certain counties, including Essex, to 
provide tuberculosis hospitals for cities and towns having 
a population of less than fifty thousand which do not already 
have adequate hospital provision. It is provided that the 
county commissioners, subject to the approval of the 
Department of Public Health, shall erect one or more 
hospitals, with an exception in the case of counties having 
a total population of less than fifty thousand; that they 
shall apportion the cost to the several towns liable, in 
accordance with their valuation used in assessing county 
taxes; that they shall also apportion the cost of main- 
tenance of such hospitals in the same manner; that all sums 
collected shall be paid into the county treasury; and that 
the county commissioners shall be trustees of the hospitals 
so erected. Section 91 provides: — 

Cities having more than fifty thousand inhabitants, and also cities and 
towns having less than fifty thousand inhabitants and already possessing 
and continuing to furnish adequate tuberculosis hospital provision, shall 
be exempt from the provisions of sections seventy-eight to ninety, in- 
clusive. 

St. 1923, c. 429, entitled '^An Act authorizing the ap- 
portionment of the expense incurred by the county of 
Essex for a tuberculosis hospital within said county," 
contains provisions relative to the apportionment of ex- 
penses already incurred and the total cost of the tuberculosis 
hospital constructed in the county of Essex under the 
provisions of G. L., c. Ill, §§ 78-91, to the cities and towns 
in said county, except the cities of Haverhill, Lawrence, 
Lynn, Newburyport and Salem, and the collection of sums 
so apportioned in conformity with the corresponding pro- 
visions in said chapter. 

By your first question I understand you intend to ask 
whether, under existing law, the cities in Essex County 
now exempt are under any liability for the cost of con- 



412 OPINIONS OF THE ATTORNEY-GENERAL. 

struction and maintenance of the tuberculosis hospital for 
Essex County. Since the statutes referred to impose the 
whole burden of construction and maintenance on the 
remaining cities and towns, for the benefit of whose in- 
habitants the hospital was erected, and expressly exempt 
the five cities enumerated, I see no ground upon which 
it can be said that the exempted cities are under any ob- 
ligation whatever in the matter. I therefore answer your 
first question in the negative. 

The fundamental inquiry presented by your second 
question is whether a part of the cost of construction and 
maintenance of the tuberculosis hospital for Essex County 
may be assessed upon the five cities in said county exempted 
by the provisions of previous enactments. 

In providing for an apportionment of the cost of a public 
undertaking among cities and towns or other political sub- 
divisions of the Commonwealth benefited thereby, and also 
in shifting the burden thereof, the Legislature has a large 
measure of discretion, the exercise of which is not subject 
to judicial control, on constitutional grounds, unless it is 
purely arbitrary. It is not essential that the burden should 
be imposed in proportion to the benefits received. The 
expense may properly be assessed with regard to other 
considerations as well, such as population, extent of territory 
and ability to bear the burden. The subject was carefully 
reviewed in Opinion of the Justices, 234 Mass. 612, in which 
the justices advised the Senate that in their opinion a statute 
changing a previous apportionment of the cost of the bridge 
across the Connecticut River between Springfield and West 
Springfield, confirmed by final decree of court, and pro- 
viding for a new apportionment among the county and 
certain towns therein by fixed percentages, would be con- 
stitutional. See also Nonvich v. County Commissioners, 
13 Pick, 60; Scituate v. WeymoutJi, 108 Mass. 128; Agawam 
V. Hampden, 130 Mass. 528; Kingman, petitioner, 153 Mass. 
566; Kingman, petitioner, 170 Mass. Ill; Boston, petitioner, 
221 Mass. 468. 



JAY K. BENTON, ATTORNEY-GENERAL. 413 

It is my opinion that a statute changing the previous 
law by inchiding in the district served by the Essex County 
tuberculosis hospital the five cities previously exempted, 
and requiring them to bear a part of the burden of the cost 
of its construction and maintenance, apportioned in a way 
which, under all the circumstances, would be fair and 
reasonable, would be constitutional. Without information 
as to the basis of the assessments on the five cities provided 
by the bill, the amounts already assessed to and collected 
from the remaining cities and towns, the comparative 
valuations of all cities and towns in the county, the extent 
and condition of hospital facilities now provided by the 
five cities, and other pertinent facts, I cannot answer more 
definitely your question whether the bill as drawn would be 
constitutional. 



May 5. 



Insurance — Accident Insurance — Group Policies. 

Group or blanket policies against loss resulting from accidental injuries are not 
authorized under the pro\dsions of the statutes, except such as are within the 
provisions of G. L., c. 175, §§ 110 and 133, as amended. 

You have asked my opinion upon three questions relative '^^^^ll'^„^°^' 
to accident insurance, two of them concerning forms of ^"904"''^^ 
policies which you have attached to your letter. 

Your questions are as follows : — 

1. May the commissioner lawfully approve either or both of these 
forms as complying with G. L., c. 175, §§ 108 and 109? 

2. May a company lawfully issue these forms of policies, assuming 
that they each contain the provisions required by said section 108? 

3. Do the provisions of said section 108 require or contemplate the 
issuance of individual policies to individual insureds? 

The forms of policies which you have transmitted plainly 
come within the type of policy known s the "group" 
policy, which in certain of its forms is sometimes referred 
to as a ''general" or "blanket" poUcy, as in G. L., c. 175, 
§ 110. The apparent purpose of each of these forms of 



414 OPINIONS OF THE ATTORNEY-GENERAL. 

policies transmitted is to insure a group of persons, as and 
while they are members of a designated club or association, 
against loss resulting from accidental injuries. In each 
form it is recited that the required premium is paid by the 
club or association, and that the members of the club 
or association at any given time, whose names appear in a 
schedule of members attached to the pohcy, are the insureds. 
Persons ceasing to be members cease to be insured, and new 
members may be added to the schedule. From the nature 
of the insurance itself it is manifest that the club or asso- 
ciation is not a beneficiary and secures for itself no protection 
under the policy. It is plain that the relation of employer 
and employees does not exist between the club, in the one 
instance, and the association, in the other, and their re- 
spective members. 

G. L., c. 175, § 3, provides that — 

No company shall make a contract of insurance upon or relative to 
any property or interests or lives in the commonwealth, . . . except as 
authorized by this chapter or chapters one hundred and seventy-six and 
one hundred and seventy-seven. 

There is no specific authority given by chapter 175 to 
issue any general, blanket or group poUcy other than group 
life insurance pohcies, defined by G. L., c. 175, § 133, as 
amended by St. 1921, c. 141, and those mentioned in G. L., 
c. 175, § 110, as amended by St. 1921, c. 136. The forms 
of pohcies under consideration do not come within the 
terms of either of these last mentioned enactments, whose 
provisions relate to groups in which the relation of em- 
ployer and employees exists as between the one paying the 
premium and the insureds. 

In my opinion, general, blanket or group accident in- 
surance policies of the character of those transmitted with 
your letter may not be lawfully written, in view of the 
wording of G. L., c. 175, § 3, and of the fact that there is 
no specific statutory authorization for such forms of pohcies. 

I therefore answer your first two questions in the negative. 



JAY R. BENTON, ATTORNEY-GENERAL. 415 

I answer your third question to the effect that G. L., c. 175, 
§ 108, construed in connection with the said chapter as a 
whole, requires and contemplates the issuance of individual 
policies to individual insureds as opposed to general, blanket 
or group policies. « 



Inspector of Animals — Nomination — Approval by 
Director of Animal Industry — Board of Select- 
men — Term of Office. 

No nominee for the position of inspector of animals can be appointed until approved 
by the Director of Animal Industry. 

A nomination made by a board of selectmen may be withdrawn by a new board 
of selectmen and another nominee named if no action has in the meantime 
been taken by the Director of Animal Industry with respect to the first nomi- 
nation. 

A former appointee holds over and can legally perform the duties of inspector of 
animals until the approval by the Director of Animal Industry of one nomi- 
nated as his successor. 



You request my opinion as follows : — 



To the Com- 
missioner of 
Conservation. 
1924 

In the town of Bedford the regular annual election of a member of the May 9. 
board of selectmen took place during the first week in March. A man 
by the name of Kelley was said to have been elected by two votes. A 
recount was asked for and the election for selectman was declared a tie. 

On March 22 the board of selectmen, under G. L., c. 129, § 15, sent in 
the nomination of Dr. Chester L. Blakely as inspector of animals for the 
year ending March 31, 1925. This nomination, however, did not bear 
the signature of the newly elected (?) Kelley, but did bear the name of 
Duane F. Carpenter, whom Kelley (if elected) was to succeed. 

The Director of Animal Industry was interviewed by a representative 
of the losing side at the regular town election, whose candidate was 
Claude A. Palmer, and was asked to hold up the matter of approval of 
the nomination of Dr. Blakely. 

The Director of Animal Industry desires an opinion by the Attorney 
General as to whether this nomination of Dr. Blakely is properly before 
him for action. 

A special town election was held March 31, 1924, and Kelley was de- 
feated by Claude A. Palmer by six votes. Directly thereafter, on March 
31, a meeting of the new board of selectmen was held, and a majority of 
the board. Palmer and another, drafted a letter to the director nominating 
as inspector of animals Dr. Immanuel Pfeiffer. 



416 OPINIONS OF THE ATTORNEY-GENERAL. 

The Director of Animal Industry desires the opinion of the Attorney- 
General as to whether this nomination of Dr. Immanuel Pfeiffer to the 
position of inspector of animals is properly before him for action. 

If in the opinion of the Attorney-General both nominations are properly 
before the director for action, does the decision rest with him as to which 
nomination shall be approved, assuming that, in his opinion, both nomi- 
nees possess the proper qualifications for the position? 

The opinion of the Attorney-General is requested as to whether, in 
case no action is taken by the director, the appointee of last year (1923) 
holds over, and can he legally perform the duties of the position? 

G. L., c. 129, § 15, provides as follows: — 

The mayor in cities, except Boston, and the selectmen in towns shall 
annually, in March, nominate one or more inspectors of animals, and 
before April first shall send to the director the name, address and occu- 
pation of each nominee. Such nominee shall not be appointed until 
approved by the director. In cities at least one such inspector shall be 
a registered veterinary surgeon. 

Under this section no nominee can be appointed until 
approved by the Director of Animal Industry. Under the 
facts submitted by you it does not appear that the director 
approved or took any action respecting the nomination 
of Dr. Chester L. Blakely as inspector of animals, which 
nomination was forwarded to the director on March 22, 
1924. Subsequently, on March 31, 1924, a meeting of 
the new board of selectmen was held and a majority of 
said board drafted and forwarded to the Director of Animal 
Industry a communication wherein it is stated that the 
director is "respectfully requested to disregard the nomi- 
nation of Dr. Chester L. Blakely of Lexington, as made on 
or about March 22, 1924, and to consider instead the ap- 
pointment of Dr. Immanuel Pfeiffer." 

Where an authority is conferred on a board in relation 
to public business it may be exercised by a majority and all 
need not join. Codrnan v. Crocker, 203 Mass. 146, Cooley 
V. 0'Con?ior, 12 Wall. 391. 

The board of selectmen is a continuing body, and, as 
such, acted within its rights when it withdrew a nomination 



JAY R. BENTON, ATTORNEY-GENERAL. 417 

which had not been acted upon and substituted therefor 
a new nomination. It accordingly follows that the nomi- 
nation of March 31st is the nomination now before the 
Director of Animal Industry for his approval or disapproval, 
and I so answer your first, second and third questions. 

The general rule is that, unless otherwise provided, an 
officer continues to hold office until the appointment or 
election and qualification of his successor. See. G. L., c. 
41, § 2. Boston v. Sears, 22 Pick. 122, 130. In accord- 
ance with this rule I am of the opinion that the appointee 
of last year (1923) holds over and can legally perform the 
duties of the position of inspector of animals until the 
approval of a nominee by the Director of Animal Industry, 
and I so answer your foiu'th and last question. 



Hawkers and Pedlers — License — Alien. 

A local ordinanoe or regulation iiroviding for the licensing of hawkers and pedlers 
of fish, fruit and vegetables, passed under authority of G. L., c. 101, § 17, is 
void if it purported to authorize the granting of a license to an alien who has 
not declared his intention of becoming a citizen of the United States. 

You have requested my opinion as to whether or not a ^issJjfnfr°of' 
licensing board or other officer of any city where there is {"nduftHe^. 
an ordinance or regulation providing for the licensing of ivuyls. 
hawkers and pedlers of fish, fruits and vegetables, may 
grant such a license to an alien who has not declared his 
intention of becoming a citizen of the United States. 

First, I think I ought to point out that the Attorney- 
General does not give authoritative opinions to municipal 
officers, it having been held many times that they are not 
entitled to such an opinion, and therefore are not bound 
by it. There was some intimation that this opinion con- 
cerned a local situation in New Bedford; but I am proceed- 
ing upon the ground that the question is asked because the 
information is necessary in the discharge of the duties of 
the Division of Standards under G. L., c. 101, and par- 
ticularly section 32. 



418 OPINIONS OF THE ATTORNEY-GENERAL. 

Coming now to your specific question. G. L., c. 101, 
§ 17, is based upon R. L., c. 65, § 15. This section of the 
Revised Laws was the subject of numerous amendments. 
In 1916, as a result of Gen. St. 1916, c. 242, § 3, the pertinent 
provisions read as follows : — 

Cities and towns may by ordinance or by by-law, not inconsistent 
with the provisions of this chapter, regulate the sale and exposing for 
sale by hawkers and pedlers of said articles without the payment of any 
fee, and may affix penalties for the violation of such regulations. Cities 
and towns may require hawkers and pedlers of fish, fruit and vegetables 
to be licensed, provided that the license fee does not exceed that prescribed 
by section nineteen of this chapter, as amended, for a license embracing 
the same territorial limits. 

The next amendment, Gen. St. 1918, c. 257, § 261, changed 
the form of this part of section 15 so as to read as follows: — 

Cities and towns may by ordinance or by-law, not inconsistent with 
the provisions of this chapter, regulate the sale or barter, and the carrying 
for sale or barter or exposing therefor, by hawkers and pedlers, of said 
articles without the payment of any fee; may in like manner require 
hawkers and pedlers of fish, fruit and vegetables to be licensed, provided, 
that the license fee does not exceed that prescribed by section nineteen 
of this chapter, and acts in amendment thereof and in addition thereto, 
for a license embracing the same territorial limits; and also may in like 
manner affix penalties for the violation of such regulations, ordinances 
and by-laws. 

The final change to date was by St. 1923, c. 285. The 
pertinent provision of the statute with which we are now 
concerned reads as follows : — 

The aldermen or selectmen may by regulations, not inconsistent with 
this chapter, regulate the sale or barter, and the carrying for sale or 
barter or exposing therefor, by hawkers and pedlers, of said articles with- 
out the payment of any fee; may in like manner require hawkers and 
pedlers of fish, fruit and vegetables to be licensed except as otherwise 
provided, and may make regulations governing the same, provided that 
the license fee does not exceed that prescribed by section twenty-two for 
a license embracing the same territorial limits; and may in like manner 



JAY R. BENTON, ATTORNEY-GENERAL. 419 

affix penalties for violations of such regulations not to exceed the sum of 
twenty dollars for each such violation. A hawker and pedler of fish, 
fruit and vegetables licensed under this section need not be Ucensed under 
section twenty- two. 

The insertion by this amendment of the phrase ''in like 
manner" discloses, in my opinion, a legislative intent 
that the aldermen or selectmen may require hawkers and 
pedlers of fish, fruit and vegetables to be licensed, etc., 
only by regulations not inconsistent with the other pro- 
visions of G. L., c. 101. G. L., c. 101, § 22, clearly indicates 
an intention that hawkers and pedlers shall be licensed to 
sell fish, fruit and vegetables only if they are citizens of the 
United States or have declared an intention to become 
citizens of the United States. I am therefore of the opinion 
that a city ordinance which purported to authorize the 
granting of a hawker's and pedler's license for the sale of 
fish, fruit and vegetables to an alien who had not declared 
his intention of becoming a citizen of the United States 
would exceed the authority granted by G. L., c. 101, § 17, 
and would be void. 

A further practical argument in favor of this view is found 
in the last sentence of G. L., c. 101, § 17, which provides 
that "a hawker and pedler of fish, fruit and vegetables 
licensed under this section need not be licensed under 
section twenty-two." This provision was added by an 
amendment subsequent to Gen. St. 1918, c. 257, § 261, 
quoted above, and I do not, therefore, rest my opinion 
upon it. It would, however, seem a further indication 
of a legislative intent that only those hawkers and pedlers 
who could be licensed under section 22 should be eligible 
for a license under section 17. 



420 opinions of the attorney-general. 

Eminent Domain — Extent of Taking — Fixtures. 

Floats used by a yacht club, and not attached to the land otherwise than by moor- 
ings, are personal property, and are not included in a taking of realty. 

i!i?iifan Distric't You have asked my opinion as to whether certain floats, 

omnussion. formerly the property of the Savin Hill Yacht Club, were 

-^' at the time of the taking of land of the Savin Hill Yacht 

Club by the Board of Metropolitan Park Commissioners, 

on or about December 23, 1914, real or personal property. 

A taking was made by the board, recorded in Suffolk 

Deeds, book 3856, page 241, of "all lands and rights in land, 

all easements, privileges and appurtenances of every name 

and nature thereto belonging," among other parcels, of 

"land and lands of the Savin Hill Yacht Club" (bounded 

and described) "and flats above or under water in Dorchester 

Bay and Savin Hill Cove and creeks and streams flowing 

into said cove." 

I am informed that at the time of the taking there was 
a building on the land, firmly affixed to the soil, with an 
elevated platform leading from the building, which was 
used as a yacht club, to a runway, which in turn led to the 
floats in question. The upper end of the runway was affixed 
to the platform and its lower end rested upon the float 
nearest shore, but was not affixed thereto otherwise than 
by its weight. The floats in question, of which there were 
several, during the season when sailing for pleasure was 
practicable, floated on the surface of the water and were 
kept from drifting away or out of alignment by chains, 
which were run through rings or holes made for the purpose 
in the floats and were then fastened to piles driven into the 
mud in a line extending out from the shore. The floats 
were not attached to these piles by any rigid connections. 
They rose and fell with the tide. They were the ordinary 
type of float used for landings for small boats, and were 
capable of being towed from place to place, and might be 
used in connection with other landing places. They were 
easily unloosed from their moorings to the piles. During 



JAY R. BENTON, ATTORNEY-GENERAL. 421 

the seasons when sailing near the club was not practicable 
they were often unmoored from the pilings and dragged 
upon the beach, where they were left without any per- 
manent fixation to the land until again required for use, 
when they were once more placed in the water and moored 
to the piles. I am also informed that these floats, when 
detached from their moorings, can be sold and used by pur- 
chasers in other places of a similar character to which they 
can be towed. 

If these floats had been so attached to the land by the 
previous owners of the soil as to become fixtures, they would 
have become real property as between the Commonwealth 
and the Yacht Club, and title to them would be vested in 
the Commonwealth under the terms of the taking. 

In determining whether articles which in their original 
condition were personal property, as were these floats, 
have become fixtures, a variety of tests have to be taken 
into consideration. These tests, as between vendor and 
vendee of the land upon which the property is situated, 
and for the purpose of determining the question here in- 
volved, wherein the Commonwealth and the Yacht Club 
are to be treated substantially as vendor and vendee, have 
been laid down by our courts as follows: The nature of 
the article, the object, the effect and the mode of its an- 
nexation. Smith V. Bay State Saimigs Bank, 202 Mass. 
482; Houle v. Ahramson, 210 Mass. 83. Neither of these 
tests is of itself sufficient. 

The floats in question are, in their general nature, person- 
alty. Thej^ are capable of being moved from place to place 
and of being used effectively in other locations than this 
particular estate. Their bulk is not an insuperable obstacle 
to their transportation by land, and they can easily be moved 
by water. There is nothing about their general form or 
design which tends to show any particular object or motive 
in the minds of the owners relative to a particular or un- 
usual relation between them and the realty with which 
they were connected, nor were they of such a character 



422 OPINIONS OF THE ATTORNEY-GENERAL. 

or construction as to have in themselves any pecuUar 
relation to the surrounding land which might enhance its 
value or usefulness more than any other articles of a similar 
type. They were not annexed to the piles or to the land 
in any manner or by any means which prevented them 
from being easily separated therefrom. 

Taking all these facts into consideration, I am of the 
opinion that the floats at the time of the taking were not 
fixtures in such a sense that they had become part of the 
realty, and that they were personal property, title to which 
remained in the owner notwithstanding the taking. 



Labor — Children — Regulation of Employment. 

The provisions of G. L., c. 149, §§ 61, 62 and 65, regulating the employment of 
minors, are applicable to minors when employed in co-operating factories, 
manufacturing, mechanical or mercantile establishments or workshops, unless 
such employment is in the course of receiving manual training or industrial 
education in an approved school, under G. L., c. 149, § 85. 

A child between the ages of fourteen and sixteen employed in anj' such establish- 
ment is required by G. L., c. 149, § 80, to secure a special certificate. 

To the Com- You reouest my opinion on the following questions : — 

missioner of -i ^ x o -i 

Labor and 

Industries. 

1924 1. Do the regulations relating to hours of employment and night 

work for minors under sixteen apply to such minors when employed in 

a co-operating factory, manufacturing, mechanical or mercantile estab- 
lishment or workshop; or may such minors be employed in such estab- 
lishments for more than eight hours in any one day or for more than 
forty-eight hours in any one week? 

2. May such minors be employed in co-operating establishments at 
the occupations and processes listed in G. L., c. 149, §§ 61 and 62, as 
prohibited employments for minors under sixteen years of age and minors 
under eighteen years of age? 

Provisions regulating the employment of children of 
various ages are contained in G. L,, c. 149, §§60 to 83, 
inclusive, some of which were amended by St. 1921, cc. 
351 and 410. Special reference should be made to the 
following sections: 



J 



JAY R. BENTON, ATTORNEY-GENERAL. 423 

Section 60, as amended by St. 1921, c. 410, § 2, prohibits 
the employment of minors under fourteen in any factory, 
workshop, manufacturing, mechanical or mercantile estab- 
lishment or in certain specified occupations, and regulates 
their hours of labor. 

Sections 61 and 62 prohibit the employment of minors 
under sixteen and eighteen, respectively, in certain specified 
hazardous occupations. 

Section 65, as amended by St. 1921, c. 351, § 1, and c. 
410, § 3, regulates the hours of labor of children under 
sixteen. It is as follows : — 

No person shall employ a minor under sixteen or permit him to work 
in, about or in connection with any establishment or occupation named 
in section sixty, or for which an employment certificate is required, for 
more than six days in any one week, or more than forty-eight hours in 
any one week, or more than eight hours in any one day, or, except as 
provided in section sixty-nine, before half past six o'clock in the morning, 
or after six o'clock in the evening. The time spent by such a minor in 
a continuation school or course of instruction as required by section 
twenty-two of chapter seventy-one shall be reckoned as a part of the 
time he is permitted to work. 

Section 69, as amended by St. 1921, c. 410, § 1, regulates 
the employment of children in so-called street trades. 

Section 85 contains certain limitations upon the applica- 
tion of sections 60 to 83, inclusive. It is as follows : — 

Sections sixty to eighty-three, inclusive, shall not apply to the juvenile 
reformatories, other than the Massachusetts reformatory, or prevent 
minors of any age from receiving manual training or industrial education 
in or in connection with any school which has duly been approved by the 
school committee or by the department of education. 

Section 86, as amended by St. 1921, c. 351, § 2, requires 
employees of children between fourteen and sixteen in any 
factory, workshop, manufacturing, mechanical or mercan- 
tile establishment, or in any industrial employment, to 
procure and keep employment certificates, with the fol- 
lowing proviso : — 



424 OPINIONS OF THE ATTORNEY-GENERAL. 

. . . provided, that pupils in co-operative courses in public schools 
may be employed by any co-operating factory, manufacturing, mechani- 
cal or mercantile establishment or workshop, or any employment as de- 
fined in section one, upon securing from the superintendent of schools a 
special certificate covering this type of employment. . . . 

It requires also special certificates covering the employment 
of children between fourteen and sixteen in private domestic 
service or service on farms. 

The inquiry made by your questions is : How far do section 
85 and the proviso in section 86 limit the application of 
the preceding sections? 

The proviso in section 86, in my opinion, is merely an 
exception to the preceding provision in that section. It 
relates to the employment of pupils in co-operative courses 
in public schools. The term "co-operative courses" is 
defined in G. L., c. 149, § 1, as meaning "courses approved 
as such by the department of education and conducted in 
public schools where technical or related instruction is given 
in conjunction with practical experience by employment 
in co-operating factories, manufacturing, mechanical or 
mercantile establishments or workshops." Such pupils 
may be so employed upon securing a special certificate 
instead of the employment certificate otherwise required. 

Section 85 contains two different provisions with respect 
to sections 60 to 83, inclusive: first, that they shall not 
apply to juvenile reformatories other than the Massa- 
chusetts Reformatory; and secondly, that they shall not 
"prevent minors of any age from receiving manual training 
or industrial education in or in connection with any school 
which has duly been approved by the school committee 
or by the department of education." I interpret this to 
mean that courses of instruction in manual training or 
industrial education may be given in approved schools 
although they involve employments and hours of labor which 
are contrary to the provisions of sections 60, 61, 62 or 65, 
and that schools giving courses of instruction inconsistent 
with the terms of those sections may be approved by the 



JAY R. BENTON, ATTORNEY-GENERAL. 425 

school committee or by the Department of Education. 
Of course, the statutory regulations are not to be lightly 
disregarded; they should be followed as far as possible 
consistently with the educational object sought to be 
achieved. 

It may be suggested that so far as concerns sections 60 
and 65, section 85 is imphedly repealed by St. 1921, c. 410. 
That act amended G. L., c. 149, § 69, by adding a provision 
permitting boys over twelve to engage in certain street 
trades under certain circumstances. It also amended G. L., 
c. 149, §§ 60, 65, in substance, by inserting the words 
''except as provided in section sixty-nine" before certain 
substantive provisions of those sections. In my opinion, 
the Legislature did not mean, by expressing this exception, 
to exclude the exception expressed in section 85. They 
observed a possible inconsistency between section 69, with 
which they were principally dealing, and some portions of 
sections 60 and 65; and so they provided that in case of 
conflict section 69 should prevail. 

My answer to your questions, specifically, is that the 
regulations of sections 61, 62 and 65 are apphcable to minors 
when employed in co-operating factories, manufacturing, 
mechanical or mercantile estabhshments or workshops, 
unless such employment is in the course of receiving manual 
training or industrial education in connection with an 
approved school, under G. L., c. 149, § 85. In that case 
those regulations will not prevent the giving of such in- 
struction to minors of any age. A child between fourteen 
and sixteen employed in any such establishment is required 
by section 86 to secure a special certificate covering that 
type of employment. 



426 opinions of the attorney-general. 

Insurance — Laundry Insurance — Bond — Rebate. 

A foreign insurance company not authorized to transact the kinds of business 
specified in the first, second or eighth clauses of G. L., c. 175, § 47, cannot 
insure a laundry company against hazards necessarily incidental to such kinds 
of business, but may, under section 105, execute, as surety, a bond to protect 
the customers against the default of the laundry company to pay losses from 
such hazards. 

A retention of a portion of the service charge made by the laundry company for 
the payment of premiums does not, under certain circumstances, constitute 
an unlawful rebate. 

m?ssionS°^' You havG requested my opinion upon certain questions 

inMu-ance. pclative to a transaction between an insurance company- 
May 27. J 1 J 

— and a laundry company. 

The facts connected with this transaction, as set forth 
in your letter, differ materially from those which existed 
in two cases concerning transactions between insurance 
companies and laundry companies upon which I rendered 
opinions to your department on June 29, 1923. (Not 
published.) You state in your letter: — 

Some further question is now raised as to the legality of the proposition 
presently employed by this company. This company is a foreign insur- 
ance company licensed to transact in this Commonwealth the classes of 
business specified in the fourth, fifth, sixth, seventh and twelfth clauses of 
section 47 of said chapter 175. It cannot, under sections 51 and 152 
of said chapter, lawfully transact the kinds of business specified in the 
first, second or eighth clauses of said section 47. 

The laundry company enters into an agreement with the insurance 
company. The laundry company executes as principal what purports 
to be a bond, which is also executed by the insurance company as surety, 
guaranteeing the performance of said agreement. 

It appears from a letter written on behalf of the insurance company 
that the agreement is apparently intended to cover loss or damage caused 
by fire, stealing, burglary or, in fact, any hazard. 

The particular laundry company referred to in the documents attached 
to my letter, I am informed, retains fifty per cent of the premiums which 
it collects, remitting the balance to the insurance company. Twenty per 
cent of the premiums retained by this laundry company is for a reserve 
fund out of which it may pay claims of its customers, not exceeding $100. 
The remainder it retains ostensibly for other costs. It apparently makes 



JAY R. BENTON, ATTORNEY-GENERAL. 427 

no express written contract with its clients, but collects from them one 
cent for each bundle of laundry and specifically charges said sum to the 
client upon its bill. 

I respectfully request your opinion on the following questions: 

(1) Is the said agreement one which the insurance company may 
lawfully make under said chapter 175? 

(2) Is the said agreement or bond in efifect a contract of insurance 
made by this insurance company against loss or damage by fire or any 
of the other hazards specified in the first, second or eighth clause of said 
section 47? 

(3) Does said agreement or bond constitute an insurance contract by 
this insurance company against the hazards specified in more than one 
of the clauses of said section 47, and is it, therefore, contrary to section 
52 of said chapter 175? 

(4) If the preceding question is answered in the affirmative, may the 
commissioner lawfully approve said agreement or said bond under said 
section 52? 

(5) Is the said bond an obligation upon which the said insurance com- 
pany may lawfully act as surety under section 105 of said chapter 175? 

(6) Does the allowance to a laundryman by the insurance company 
of a portion of the premiums collected by him constitute a rebate in vio- 
lation of sections 182 to 184 of said chapter 175, (a) if used in whole or 
in part by the laundryman to pay claims of his customers; (6) if used in 
part to pay such claims and in part to defray expenses in connection with 
the operation of the plan; and (c) if retained entirely by the laundryman 
for his personal use? 

In the case presented by your letter and the documents 
annexed thereto it appears that a surety bond in which a 
laundry company is named as principal and certain of its 
customers severally appear to be obligees, with an insurance 
company designated as surety, has been executed by the 
laundry company and the insurance company. In this 
bond it is recited that the laundry company has voluntarily 
waived its legal defenses to any claim of its customers 
for any bundle of laundry delivered to the laundry com- 
pany and not returned by it in like good order, ordinary 
laundry wear excepted, and that the laundry company is 
desirous of giving further assurance to its customers that 
their claims will be promptly adjusted. The laundry 
company binds itself, to each of its customers who shall 



428 OPINIONS OF THE ATTORNEY-GENERAL. 

pay a service charge, that it will pay promptly, as liquidated 
daniages, to any one of them in settlement of any claim 
made by any of them for any bundle delivered to the laundry 
company and not returned in like good order, ordinary 
laundry wear excepted, as that in which it was received, 
the fair value of the goods; provided that the claim is not 
in excess of a stated amount and is made within thirty days. 
And the insurance company obligates itself to pay to any of 
such customers the amount so due upon any claims against 
the laundry company, in the event that the laundry com- 
pany fails to make payment. 

I am informed that the laundry company sends to each 
of its customers a slip, of which the following is a copy : 

A New Service. 

Do 3^ou know that a laundry is not legally responsible for the customer's 
goods unless the laundry is proven negligent? While we try to use all 
reasonable care, accidents do happen from many causes, causing substan- 
tial loss. We prefer to adjust such matters promptly and to avoid the 
delay, friction and expense of litigation, in order to give our customers the 
most complete service. We, therefore, voluntarily waive our legal de- 
fenses to any claim made for any bundle delivered to us and not returned 
in lOvC good order, ordinary laundry wear excepted, and we have taken a 
surety company bond to secure prompt payment to you, as liquidated 
damages in settlement of any such claim, the fair value of the goods, but 
not exceeding twenty times the laundry charge. 

The charge for this service is one cent per bundle to defray the expense 
of the service and of the surety company bond. We will arrange for this 
service with our next deliveiy. 

It is to be noted that in this slip the laundry company 
states : 

We, therefore, voluntarily waive our legal defenses to any claim made 
for any bundle delivered to us and not returned in like good order . . . 
and we ha^'e taken a suretj'' company bond to secure prompt paj'^ment to 
you, as liquidated damages in settlement of any such claim, the fair 
value of the goods, but not exceeding twenty times the laundry charge. 

Concurrently with the execution of the bond the insurance 
company and the laundry company execute an "agreement." 
Clause 8 of this agreement reads as follows : — - 



JAY R. BENTON, ATTORNEY-GENERAL. 429 

The laundry may settle, and charge to the account of the corporation, 
clarnis other than those enumerated in paragraph 3 above; provided that 
settlements so made and charged shall not exceed 10% per 100 bundles, 
delivered or returned to customers, in any calendar month, except with 
the consent of the corporation. If and when such settlements for any 
calendar month exceed 10c per 100 bundles, the corporation will pay the 
excess. 

The laundrj"- shall promptly furnish to the corporation such infor- 
mation as may be required by it in reference to claims paid or filed, and 
the corporation shall have the option of adjusting the pending claim di- 
rect with the customer. 

In event claim for any one or more of several bundles, resulting from 
any one event, be settled for less than the maximum limit per bundle 
fixed in paragraph 2, the difference maj^ be applied to settlement for the 
other bundles for which the laundry deems it necessary to paj' more than 
the agreed limit; provided that the maximum liability of the corporation 
be not thereby increased. 

The purport and intent of the agreement are to provide 
for the payment to the laundry company by the msurance 
company of the amount of all losses which the former may 
sustain by reason of damage to the contents of the laundry 
bundles of its customers while in its possession. The 
agreement permits the adjustment and payment of claims 
in the first instance by the laundry company, but reserves 
to the insurance company the right, at its option, of making 
any particular adjustment with the customer direct. The 
agreement is in effect a policy of insurance by the insurance 
company against loss which the laundry company may 
sustain by damage from all causes or hazards to the property 
of its customers, of which it is the bailee. The liability 
of the insurance company upon this agreement is in addition 
to its liability as surety upon the bond, and is of a different 
character. The voluntary waiver by the laundry com- 
pany of defenses, and acceptance of a certain mode for the 
purpose of determining liquidated damages, does not affect 
the nature of its agreement with the insurance company. 
Upon its bond the insurance company is liable to the 
laundry company's claimants upon the default of the 
laundry company in paying their just claim for damages. 



430 OPINIONS OF THE ATTORNEY-GENERAL. 

Upon the agreement the insurance company is liable to 
the laundry company for the amount of the latter's losses 
upon such claims. 

You inform me in your letter that this insurance com- 
pany cannot lawfully transact the kind of business specified 
in the first, second, or eighth clauses of G. L., c. 175, § 47. 
The agreement which the insurance company enters into 
with the laundry company is in effect a contract of in- 
surance against losses to property in the possession of the 
laundry company from any and all causes or hazards. 
Many of such causes or hazards, against which the agree- 
ment purports to protect the laundry company, are those 
specifically mentioned in the first, second and eighth clauses 
of section 47. As business relative to insurance against 
such causes cannot lawfully be transacted by this insurance 
company, this agreement, which purports to insure against 
damage from such causes, among others, is not one which 
this company may lawfully make. I therefore answer 
your first question in the negative. 

I answer your second question, so far as it relates to the 
agreement, in the affirmative, but in the negative as it 
relates to the bond. 

I answer your third question, in so far as it relates to the 
agreement, in the affirmative, and, in so far as it relates to 
the bond, in the negative. 

I answer your fourth question to the effect that the bond 
is not a contract of insurance and does not require the 
approval of the Commissioner under the provisions of G. L., 
c. 175, § 52. So far as your question relates to the agree- 
ment, I answer that in its present form, for the reason that 
it covers losses from causes as to which this insurance com- 
pany is not authorized to transact business, the Com- 
missioner may not lawfully approve it. 

I answer your fifth question in the affirmative. 

Construing the terms of the particular agreement now 
before me, I am of the opinion that the retention of money 
arising from the service charge mentioned in paragraph 4 



JAY R. BENTON, ATTORNEY-GENERAL. 

of the agreement by the laundry company does not con- 
stitute a rebate in violation of G. L., c. 175, §§ 182-184, 
under any of the conditions mentioned in your question as 
(a), (b) and (c). A particular arrangement not provided 
for in the agreement, by which a particular assured was 
permitted to retain a portion of the premium mentioned 
in paragraph 7 for any purpose other than the payment 
of claims upon which the insurance company was to in- 
demnify the laundry company, would be unlawful under 
the terms of sections 182-184. 



431 



May 27. 



Insurance — Investment of Funds of Domestic Life 
Companies — Securities of Equipment Trusts. 

G. L., c. 175, § 66, does not prohibit a domestic life insurance company from invest- 
ing one-quarter of its reserve in the notes of an equipment trust not a corpora- 
tion, the owners of whose stock or evidences of indebtedness may be liable to 
an assessment except for taxes. 

Section 66 does not prohibit a domestic life company from investing three-quarters 
of its reserve in equipment trust notes which comply with paragraph 6 of 
section 63, nor does it forbid investment of one-quarter of the reserve in an 
unincorporated business or its securities, provided that such investment be 
secured by collateral. 

You have asked my opinion regarding various matters ^°J,^onS°^' 
connected with the investment of certain funds of domestic ^Ygir*"^ 
life insurance companies under G. L., c. 175, as amended. 

Your first question is : — 

Does G. L., c. 175, § 66, as amended, prohibit any domestic life com- 
pany from investing one-quarter of its resei*ve in equipment trust notes 
not complying with the provisions of paragraph 6 of section 63? 

St. 1923, c. 297, amends G. L., c. 175, as previously 
amended by St. 1921, c. 215, by striking out sections 63 
and 66 and inserting in place thereof two new sections, 
numbered 63 and 66, respectively. 

Section 63 now provides, in part : — 

The capital of any domestic company, other than life, and three fourths 
of the reserve of any domestic stock or mutual life company, shall be in- 
vested only as follows : — ... 



432 OPINIONS OF THE ATTORNEY-GENERAL. 

6. In the notes of any equipment trust created in behalf of any rail- 
road coming within the terms of paragraph four or five, provided that the 
plan of such trust, in case of any railroad coming within the terms of 
paragraph four, includes an initial cash payment of at least twenty-five 
per cent, and, in case of any railroad coming within the terms of para- 
graph five, of at least forty per cent, and that such notes mature not 
later than fifteen years from the date of issue. 

Section 66, as now amended, provides, in part : — 

Except as hereinbefore authorized, no domestic life company shall in- 
vest any of its funds in any unincorporated business or enterprise or in 
the stocks or evidence of indebtedness of any corporation the owners or 
holders of which stock or evidence of indebtedness may in any event be 
or become liable on account thereof to any assessment except for tajes, 
nor shall such life company invest any of its funds in its own stock or in 
the stock of any other company. No such company shall invest in, 
acquire or hold directly or indirectly more than ten per cent of the capital 
stock of any corporation, nor shall more than ten per cent of its capital 
and surplus be invested in the stock of any one corporation. No such 
company shall subscribe to or participate in any underwriting of the 
purchase or sale of securities or property, or enter into any transaction 
for such purchase or sale on account of said company jointly with any 
other person nor shall any such company enter into any agreement to 
withhold from sale any of its property, but the disposition of its property 
shall be at all times within the control of its board of directors. 

Nothing in this section or in section sixty-three shall prevent such 
company from investing or loaning any funds, not required to be invested 
as provided in section sixty-three, in any manner that the directors may 
determine; provided, that such funds shall not be invested in the pur- 
chase of stock or evidence of indebtedness prohibited by the preceding 
paragraph, and provided that no loan of such funds shall be made to an 
individual or firm unless it is secured by collateral security. 

The manner in which a domestic Hfe insurance compan}^ 
shall deal with the investment of three-fourths of its reserve 
is governed by said sections 63 and 66. The manner in 
which it shall deal with the remaining one-fourth of its 
reserve is governed by the second paragraph of said section 
66. As regards the investment of one-fourth of its reserve, 
the directors are free to make any reasonable investments, 
subject only to prohibitions against investment in stocks 



JAY R. BENTON, ATTORNEY-GENERAL. 433 

or evidence of indebtedness forbidden by the first paragraph 
of section 66, and unsecured loans to individuals. The 
second paragraph of section 66 does not contain any pro- 
hibition against the purchase of notes of equipment trusts 
not complying with the provisions of paragraphs 4 or 5 
of section 63. The second paragraph of section 66, by 
reference to the first paragraph, does contain a direct pro- 
hibition against the investment of any funds of such a com- 
pany "in the stocks or evidence of indebtedness of any 
corporation the owners or holders of which stock or evidence 
of indebtedness may in any event be or become liable on 
account thereof to any assessment except for taxes." This 
prohibition is binding upon the directors of the company 
as to their investment of the one-fourth part of the reserve 
under consideration. 

I therefore answer your question to the effect that, if 
an equipment trust is not a corporation, the owners of 
whose stock or evidences of indebtedness may be liable 
to an assessment except for taxes, then the provisions of 
section 66 do not prohibit a domestic life insurance com- 
pany from investing one-quarter of its reserve in the notes 
of such an equipment trust. 

Your second question is as follows: — 

Does said section 66 permit a domestic life company to invest three- 
quarters of its reserve in equipment trust notes which comply with the 
provisions of said paragraph 6, (a) if the trustee is not a corporation, and 
(b) if the trustee is a corporation? 

The investment of three-quarters of the reserve of a 
domestic life insurance company is governed primarily 
by section 63. Section 66 sets forth certain prohibitions 
relative to the investment of the funds of domestic life in- 
surance companies, but these prohibitions are effective 
only if preceding sections of the chapter have not authorized 
the acts which the terms of section 66 purport to prohibit. 
Section 66 begins with the words "except as hereinbefore 
authorized." Section 63 specifically authorizes, in para- 



434 OPINIONS OF THE ATTORNEY-GENERAL. 

graph 6, the notes of equipment trusts which comply with 
the provisions therein set forth for investment of three- 
fourths of the reserve of a domestic hfe insurance com- 
pany, and makes no hmitation relative to such investment 
based upon the trustee being a corporation or unincorpo- 
rated. 

The prohibition contained in section 66, concerning in- 
vestments in unincorporated enterprises, does not apply 
to investments in the equipment trusts mentioned in section 
63, because as to these the investment has, in the language 
of section 66, "hereinbefore been authorized." Accordingly, 
I answer your question, both as to subsections (a) and (b), 
in the affirmative. 

Your third question is as follows : — 

Does said section 66 prohibit a domestic life company from investing 
one-quarter of its resei*ve in any unincorporated business or enterprise or 
in any securities excepting stocks or evidence of indebtedness of any 
corporation, the owners or holders of which stock or evidence of indebted- 
ness may in any event be or become liable on account thereof to any 
assessment except for taxes? 

I answer this question in the negative, adding that section 
66 forbids the making of a loan to a firm or individual with- 
out securing such loan by collateral security. 

Your fourth question is as follows : — 

Is a domestic life insurance company owning notes or certificates of 
an equipment trust described in paragraph 6 of said section 63 a creditor 
of the trust? 

The word "certificates" is not used in section 63. In 
the ordinary acceptance of the word, a "note" is a promise 
to pay money, which creates as between the maker and 
the payee the relation of debtor and creditor. 

I am informed that these equipment trust notes are 
commonly called, also, participation certificates, and that 
in the form in which they are sometimes issued they are 
in realty certificates of part ownership in physical property, 



JAY R. BENTON, ATTORNEY-GENERAL. 435 

the title to which is held by the trustee for the benefit of 
all the owners of such certificates. When so issued they 
are not in the nature of promises to pay to the holder by 
the trust, and the relation of creditor and debtor does not 
exist. Whether or not the holder of one of these notes or 
certificates issued by an equipment trust in any given 
instance can be termed a creditor of the trust, depends upon 
the form and wording of the instrument which is purchased 
from the trust. 



Insurance — Single Premium Deferred Annuity 
Policy — Cash Value. 

The cash value of "a single premium deferred annuity policy," called a "deferred 
income bond," to be paid at the death of the insured, is to be computed under 
the provisions of G. L., c. 175, §§ 132, 142. 

You have asked my opinion relative to certain provisions to the com- 

^ ^ '■ missioner of 

of "a single premium deferred annuity policy." In your insurance. 
letter you state : — ^^*- 

One of our domestic life companies has submitted to this department 
for approval a single premium deferred annuity policy which the com- 
pany has designated "deferred income bond," which contains a provision 

that: "In case the said bondholder should die before the day 

of one thousand nine hundred and , no income pay- 
ment will be made under this contract, but if the contract is in force at 
the death of the bondholder, the cash vahie of this contract at the end 
of the contract year in which death occurs, less any indebtedness to the 
company hereunder shall, upon receipt of due proof of such death, be 
paid to the executors or administrators of the bondholder, unless other- 
wise provided." 

On a policy of this kind with a single premium of $1,000, the cash 
value of the policy at the end of thirty years is $2,680, the addition $1,680 
representing accumulated interest on the original single premium of 
$1,000. 

In view of the fact that the statute requires annuity policies to contain 
in substance all of the provisions required of life and endowment policies 
unless the refund on the death of the annuitant is limited to a' 'sum not 
exceeding the premiums paid thereon," I desire your opinion as to whether 



436 OPINIONS OF THE ATTORNEY-GENERAL. 

or not the statute permits such refund to include any or all of the interest 
accretions from said premiums. 

If the words "any sum not exceeding the premiums paid thereon" are 
construed as including interest accretions, what is the maximum rate of 
interest which should be allowed? (See G. L., c. 175, § 9.) 

It is apparent from the terms of the policy as set forth 
in your communication that the payee, at the death of 
the insured, would receive the cash value of the policy 
at the end of the year in which the death occurs, and that 
this cash value would be greater than the amount of the 
premium paid for the policy. The policy is therefore not 
one of the annuity or endowment policies which, under 
the terms of G. L., c. 175, § 132, are excepted from the 
general requirement that policies shall not be issued unless 
they contain in substance the provisions of section 132, 
clauses 8 to 12, so far as applicable to single premium con- 
tracts. The words "sum not exceeding the premiums 
paid thereon," limiting the class of policies which are not 
required to contain the other provisions of the statute, 
do not include in their connotation accretions by way of 
interest to such premiums, but are limited to the amount 
of the actual premiums paid. What the payee will receive 
on this policy is stated to be "the cash value of this con- 
tract at the end of the contract year." As the policy must 
contain the other provisions of section 132, the cash value 
of the policy which is to be paid at the death will be com- 
puted as indicated therein and in the general mode of making 
such compjutations as set forth in section 142. The reserve 
of the insurance company may not be unduly entrenched 
upon for the benefit of policy holders of this particular con- 
tract by a mode of computing cash value or reckoning in- 
terest, which shall be peculiarly favorable to them, and so 
work a diminution of the funds to the detriment of other 
classes of insureds. 

In view of the opinion which I have expressed herein, 
the question contained in the last paragraph of your letter 
does not require a further answer. 



June 2. 



jay r. benton, attorney-general. 437 

State Retirement System — Salary or Wages. 

Extra compensation for special services out of office hours is not "salary," within 
the meaning of G. L., c. 30, § 21. 

Under G. L., c. 32, § 1, as amended by St. 1922, c. 341, § 1, additional compensa- 
tion for discontinuous employment out of office hours is not "salary or wages," 
and should not be considered in computing a pension payable under G. L., 
c. 32, § 5, par. (2) C (6). 

You have requested my opinion as to the meaning of BCard^oT'**^ 
the words "salary or wages," defined by G. L., c. 32, § 1, Kjegf^e"'""* 
as amended by St. 1922, c. 341, § 1, as applied to the case 
stated by your letter. You state that a member of the State 
Retirement Association created by G. L., c. 32, who has 
been employed continuously since November 28, 1902, 
in the Department of Conservation, Division of Animal 
Industry, must now be retired from the service on account 
of age. You further state that the member, in addition 
to the regular salary received by him from the Department 
of Conservation, acted as a member of three separate boards 
of civil service examiners, as provided by G. L., c. 13, § 6, 
and received for this additional service, as compensation 
for marking the examination papers, a sum amounting 
to $500 or $600 per year. Upon the basis of these facts 
you ask w^hether such compensation received by the member, 
in addition to the amount paid him for the work performed 
in regular office hours as an employee of the Department 
of Conservation, should be deemed by you "salary or 
wages" in determining the amount of pension payable under 
G. L., c. 32, § 5, par. (2) c (6). You further ask whether 
similar compensation received by an employee of one 
department from a department other than the one in which 
he is required to give full time should be considered ir- 
regular compensation and not subject to annuity deductions. 

G. L., c. 32, § 1, as amended by St. 1922, c. 341, § 1, 
defines the words "salary or wages" as follows: — 

"Salary or wages," cash received fur regular services together with 
such allowance for other compensation not paid in cash as may be here- 
inafter provided. 



438 OPINIONS OF THE ATTORNEY-GENERAL. 

Section 4 of G. L., c. 32, provides for the creation of an 
annuity and pension fund from deposits by members and 
contributions by the Commonwealth. Section 5 pro- 
vides for the administration of annuity and pension funds 
by the payment to members, upon retirement, of annuities 
from employees' deposits [par. (2) B], and pensions derived 
from contributions by the Commonwealth [par. (2) C]. 
These pensions are divided into two classes, — (a) pensions 
based upon service subsequent to June 1, 1912, and (6) 
pensions based upon service prior to that date. 

G. L., c. 32, § 5, par. (2) C (6), provides, in part, as 
follows : — 

Pensions based upon prior service. Any member of the association 
who reaches the age of sixty and has been in the continuous service of 
the commonwealth for fifteen years or more immediately preceding and 
then or thereafter retires or is retired, and any member who completes 
thirty-five years of continuous service and then or thereafter retires or 
is retired, shall receive, in addition to the annuity and pension provided 
for by paragraphs (2) B and (2) C (a) of this section, an extra pension for 
life as large as the amount of the annuity and pension to which he might 
have acquired a claim if the retirement system had been in operation at 
the time when he entered the service of the commonwealth, and if ac- 
cordingly he had paid regular contributions from that date to June first, 
nineteen hundred and twelve, at the same rate as that first adopted by 
the board, and if such deductions had been accumulated with regular 
interest. 

In order to compute the pension to which a retiring 
member is entitled, in accordance with the above pro- 
vision, it is accordingly necessary to estimate the amount 
of the annuity and pension to which, if the retirement 
system had been in operation at the time when he entered 
the service of the Commonwealth, he might have acquired 
a claim under the provisions of paragraph (2) B and (2) 
C (a) of section 5. 

Paragraph {2) C (a) of section 5 provides that a retiring 
member shall receive a pension equivalent to the annuity 
to which he is entitled under paragraph (2) B; and paragraph 
{2) B provides as follows : — 



JAY R. BENTON, ATTORNEY-GENERAL. 

Annuities from Employees' Deposits. — Any member who reaches the 
age of sixty and has been in the continuous service of the commonwealth 
for fifteen years immediately preceding and then or thereafter retires or 
is retired, . . . shall receive an annuity to which the sum of his deposits 
under section four (2) A, with such interest as shall have been earned 
thereon, shall entitle him, . . . 

It follows that the amount both of pensions based upon 
subsequent service and of pensions based upon prior service 
depends upon the size of the annuity from employees' 
deposits, to which the . retiring member is entitled under 
section 5, paragraph (2) B; and that the size of this annuity, 
in turn, depends upon the amount of the deposits which 
the member was required to make by section 4, paragraph 
{2) A. 

Section 4, paragraph {2) A, reads as follows: — 

Deposits by Members. — Each member shall deposit in this fund from 
his salary or wages, as often as the same are payable, not less than one 
nor more than five per cent thereof, . . . 

The question asked by you resolves itself, therefore, 
into an inquiry as to the meaning of the phrase "from his 
salary or wages" in the above provision. 

Had G. L., c. 32, contained no definition of the phrase 
''salary or wages," I am of the opinion that that phrase 
would not include such additional and irregular com- 
pensation for special work, performed out of regular office 
hours, as that set forth by *you in your letter. It has been 
determined by this department repeatedly that such extra 
compensation for special services out of office hours is not 
"salary," within the meaning of G. L., c. 30, § 21, which 
provides that no person shall at the same time receive more 
than one salary from the treasury of the Commonwealth. 
See II Op. Atty. Gen. 21, 309; V Op. Atty. Gen. 697, 
699. As stated in the last opinion cited above, the word 
"salary" is normally limited to "compensation established 
on an annual or periodical basis and paid usually in instal- 



439 



440 



OPINIONS OF THE ATTOENEY-GENERAL. 



ments, at stated intervals, upon the stipulated per annum 
compensation." 

Tn any event, the definition of "salary or wages" in- 
troduced into the act by the amendment of 1922 would 
seem conclusive on this point. In my opinion, additional 
compensation for discontinuous employment out of office 
hours cannot be considered "cash received for regular 
services"; and it is, I think, obvious that the last phrase 
of the definition, "together with such allowance for other 
compensation not paid in cash as may be hereinafter pro- 
vided," has no application to the case put by you. 

I am accordingly of the opinion that upon the facts 
stated in your letter additional compensation of the kind 
in question would not be subject to annuity deductions 
under G. L., c. 32, § 4, par. (2) A; and should therefore, 
of course, not be considered in computing a pension payable 
under section 5, paragraph (2) C (b). I therefore answer 
your first question in the negative, and your second question 
also in the negative so far as it is applicable to the case which 
you have presented. 



State Retirement Association — Membership — Age. 

The State Board of Retirement would not be justified in retiring a person who pur- 
ported to join the association after June 1, 1912, at the supposed age of fifty- 
three years but who, in fact, at that time had passed the age of fifty-five years, 
such person not being a member of the association, and accordingly not en- 
titled to retirement. * 



To the State 
Board of 
Retirement. 

1924 
June 3. 



You have requested my opinion as to whether G. L., c. 
32, § 2, par. (1), qualifies St. 1911, c. 532, § 3, par. (2), so 
that the board would be justified in retiring a person who 
purported to join the association in 1912 at the supposed 
age of fifty-three years, but who, in fact, at that time had 
passed the age of fifty-five years. I assume that the person 
in question was not in the service of the Commonwealth 
on or prior to June 1, 1912, which is referred to as the date 



JAY R. BENTON, ATTORNEY-GENERAL. 441 

on which the State Retirement xissociation was estabHshed. 
G. L., c. 32, §2, par. (1). 

G. L., c. 32, § 2 par. (1), reads as follows: — 

All persons who are now members of the state retirement association 
estabHshed on June first, nineteen hundred and twelve, shall be members 
thereof. 

St. 1911, c. 532, § 3, par. (2), reads as follows: — 

All employees who enter the service of the commonwealth after the 
date when the retirement sj-stem is established, except persons who have 
already passed the age of fifty-five years, shall upon completing thirty 
days of service become thereby members of the association. Persons 
over fifty-five years of age who enter the service of the commonwealth 
after the establishment of the retirement system shall not be allowed to 
become members of the association, and no such employee shall remain 
in the service of the commonwealth after reaching the age of seventy 
years. 

G. L., c. 32, § 2, par. (1), corresponds to and is substituted 
for St. 1911, c. 532, § 3, par. (1). This latter section reads 
as follows : — 

All employees of the commonwealth, on the date when the retirement 
system is established, may become members of the association. On the 
expiration of thirty days from said date every such employee shall be 
considered to have elected to become, and shall thereby become, a mem- 
ber, unless he shall have within that period, sent notice in writing to the 
state insurance commissioner that he does not wish to join the association. 

The difference in phraseology is due to the fact that in 1911 
the association had not come into existence, whereas, at 
the time when the General Laws were drafted the association 
was established. There seems to be nothing in G. L., 
c. 32, § 2, par. (1), which can be construed as indicating 
an intent to change in any way the qualifications of member- 
ship in the association; or to confirm membership in any 
who may previously have been improperly regarded as 
members. 



442 OPINIONS OF THE ATTORNEY-GENERAL. 

I am of the opinion that G. L., c. 32, § 2, par. (1), does not 
make the person referred to a member of the association 
and thereby entitled to retirement under G. L., c. 32, § 2, 
par. (9), as amended. 



Constitutional Law — Theatres — Regulation of Re- 
sale OF Tickets. 

Dealers in the resale of tickets to places of amusement may be required to be 

licensed. 
The original price of such tickets may be required to be printed upon the face 

thereof. 
The resale price of such tickets may be restricted to an advance of not over fifty 

cents above the original price. 

Gove^rnor. ^ have the honor to acknowledge the submission to me 

june*5. for examination and report of Senate Bill No. 510, entitled 

"An Act to regulate the sale and resale of tickets to theatres 
and other places of public amusement, as a matter affected 
with a public interest, in order to prevent fraud, extortion 
and other abuses." 

Proposed legislation, having marked fundamental simi- 
larities to the provisions embodied in this bill, has been at 
various times before this office for examination, and it 
has been the uniform opinion of my predecessors in office 
that those various items of legislation were unconstitutional. 
Opinions to this effect are found in III Op. Atty. Gen. 491 ; 
IV Op. Atty. Gen. 519; VI Op. Atty. Gen. 445. 

It will perhaps not be serviceable, in view of the recent 
opinion of the justices of the Supreme Judicial Court, to 
consider in detail whether the present bill can be dis- 
tinguished as to its constitutionality from those earlier 
proposed measures. 

By Senate order under date of March 28, 1924, in con- 
nection with the consideration of House Bill No. 1038, the 
opinion of the justices of the Supreme Judicial Court was 
required upon a series of questions bearing upon the validity 
of regulations of ticket speculation. The opinion of the 



JAY R. BENTON, ATTORNEY-GENERAL. 443 

justices in response to that order is found in 247 Mass. 
583. It answers in the affirmative subdivisions (A), (C), 
(D), (E) and (F) of question (1), and in the negative sub- 
division (B), and continues 

Although we do not observe any unconstitutional provision in the 
proposed bill, we respectfully ask to be excused from answering question 
(2) touching its constitutionality in all its provisions. 

A textual comparison of the present bill with House Bill 
No. 1038, as then submitted to the consideration of the 
justices, does not disclose the addition of any provisions 
which affect adversely the constitutionality of the bill. 
On the contrary, certain features of House Bill No. 1038 
have been eliminated; perhaps the most significant elimi- 
nation, from the point of view of constitutionality, is that 
which makes the proposed section 185 (A) of chapter 140 
of the General Laws, as found in the present bill, deal only • 
with the business of reselling tickets, whereas the cor- 
responding section in House Bill No. 1038 dealt also with 
any and every resale, however casual. 

The proposed section 182 (A), as found in the present 
bill, seems clearly covered as to its constitutionality by 
the answer made by the justices to question 1 (A). Sections 
185 (A), (B), (C), (E), and some aspects of (F), as found 
in the present bill, are similarly covered by the answer 
made by the justices to questions 1 (C) and 1 (D). Any 
claim that the statute as now drawn gives to the Com- 
missioner of Public Safety powers so broadly expressed as 
to be conceivably susceptible to abuse through arbitrary 
action is probably answered by Douglas v. Noble, 261 U. S. 
165. Section 185 (D) and some aspects of section 185 
(F) are similarly covered by the answer of the justices to 
question 1 (F). Section 185 (G) in the present bill does not 
seem to establish any unreasonable classifications. 

The Court of Appeals of New York, in People v. Weller, 
237 N. Y. 316, has also held constitutional a statute of that 
State quite similar to the present bill. The court points 



444 OPINIONS OF THE ATTORNEY-GENERAL. 

out the fact that theatres and other places of amusement 
are in numerous aspects the unquestioned subject of police 
power regulation, that there are certain tendencies to mo- 
nopoly occurring in the business of reselling tickets, and 
that the business of speculating in theatre tickets is one 
''through which the general public is compelled to pay a 
group of men for services which, at least in part, are not 
desired by the public." The reasoning of the justices in 
the opinion rendered to the Senate relies largely upon the 
ground that "the maintenance of theatres and other places 
of amusement is for the use of the public and affected with 
a public interest." 

The three main features of the statute are the require- 
ment of printing the price on the tickets, the licensing of 
dealers in tickets, and the restricting of the profits which 
such dealers may make upon resales. If the price-fixing 
aspect should be taken as the central feature of the statute 
the other provisions would be reasonably calculated to 
aid in its enforcement, and might be constitutional for 
that reason, if for no other, if the price-fixing provision 
is constitutional. Assuming, however, that these three 
main divisions of the bill are separable, there would still 
probably be little difficulty in holding constitutional the 
parts relating to the printing of the price and to licensing, 
as measures for the prevention of frauds. 

The constitutionality of fixing the resale price is in- 
trinsically a much more doubtful question, upon which 
differences of opinion are not merely likely but inevitable. 
I feel constrained, in the light of the opinion of the justices 
referred to above, to say that the proposed bill will, if en- 
acted, be constitutional. 

I would respectfully call attention to the form of proposed 
section 185 (G). As that section now stands, the words 
"the six preceding sections" would seem to mean the six 
sections preceding section 182 (A) of chapter 140 of the 
General Laws; whereas, it is plain that the reference was 
meant to be to the six sections, 185 (A) to (F), inclusive, 



JAY R. BENTON, ATTORNEY-GENERAL. 445 

which in the proposed bill immediately precede section 
185 (G). There might also be some question as to what 
terms are modified and governed by the words "reUgious, 
educational or charitabl