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

OFFICIAL OPINIONS 



OF THE 



ATTORNEY-GENERAL 



OF 



PUBLISHED BY THE 

ATTORNEY-GENERAL 



Volume VIII 

1926-1929 



lm-H-'30. No. 467 



THIS VOLUME CONTAINS 
THE OPINIONS OF ATTORNEYS-GENERAL 

JAY R. BENTON, 

ARTHUR K. READING, 

JOSEPH E. WARNER, 

1926-1929 

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 
1930, chapter 426, section 227b. 

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, 

Attorjiey-General. 

Boston, January, 1931. 



Table of Statutes Cited or Referred to in this 

Volume. 



Acts of Congress. 



40 Stat. (U. S.), 550 . 

(U. S.), 595 . 

1912, Aug. 20, 37 Stat. 315, c. 308 
1917, Mar. 4, 39 Stat. 1165, c. 179 



United States Compiled Statutes. 



8574-8 



PAGE 

. 455 

. 455 

. 238 

. 238 

PAGE 

. 43 



United States Revised Statutes 
U. S. Stat. 24 at 1. 440; 34 ibid. 63; 43 ibid. 970 

§ 1994 

§ 5219 

§ 5219, 1, (c) 

§ 5263 



PAGE 
. 191 

. 622 

323, 324, 325 

. 322 

3 



United States Constitution. 



Art. I, § 8 



Constitution of Commonwealth 
Const., pt. 1, art. XIX 

pt. 2, c. I, § I, art. I 

§ I, art. II . 

§ II, art. VIII 

§ III, art. VI 

c. II, § I, art. VIII 

§ I, art. IX 

c. VI, art. II 

Mass. Const. Amend., VIII 

XVII 

— XXI 

XXXVII 

XXXIX 

XLVII 

XLVIII 

pt. IV 

XLVIII The Referendum, pt 



The Initiative II 

LVII 

LXIII 

LXIV 

§1 . 

art. LXVI 



. 3, § II 
Initiative Petitions, § IV 



PAGE 

. 166, 167 

PAGE 

. 507 
. 169 
. 102 
. 435 
. 435 
6, 327 
. 363 

. 512, 634 
. 634 

. 519, 520 
. 125 
. 363 
103, 104, 105 
. 141 
101, 169, 170 
. 70 
. 333 
, 639 
. 449 
. 193 
. 619 
. 512 
64, 68 



VUl 



STATUTES CITED. 



Statutes of the Commonwealth. 



1784, 
1797, 
1806, 
1822, 
1834, 
1851, 
1854, 
1855, 
1863, 

1864, 
1865, 
1866, 



c. 32 
c. 9 
c. 18 
c. 32, i 
c. 190, 
c. 26 
c. 454 
c. 294 
c. 175, 
c. 220 
c. 268 
c. 285, 
c. 149 



10 

§7 



2, c. 234 



1869, c. 380 

c. 432 

1872, c. 236 

1874, c. 284 

c. 347 

1876, c. 203, 

1877. c. 144 

c. 224 

1884, c. 320 

1885, c. 294 

1887, c. 18 

c. 212 

c. 234, 

1888, c. 309, 

c. 334 

1890, c. 153 

c. 421 

c. 440, 

1891, c. 420 

1893, c. 364 

1894, c. 288 

c. 444, 

1895, c. 151 
1899, c. 229 

1902, c. 315 

c. 495, 

1903, c. 417 

c. 465 

c. 473, 



§11 



§3 

§9 



§ 14 
§5 



§1 



§4 

§4 
§5 



§4 
§ 15 



PAGE 

. 34 
. 35 

281, 282, 283, 285, 286 
17, 18 
.470, 471 
. 284 
. 286 

470, 471 
. 471 

433, 602 
. 562 
. 176 
. 218 
. 218 
. 562 

218, 219 

218, 221 
. 223 

219, 220 
. 219 
. 472 
. 562 
. 287 
. 186 
. 573 
. 562 
. 566 
. 480 
. 192 
. 644 
. 493 
. 187 
. 51 
. 330 

329, 330, 331 

. 478 

. 457 

. 563 

. 215 

. 176 

. 400 

. 329 

. 330 

. 59 

. 369 

. 238 

. 61 

. 233 

234, 236 

. 369 



1904, 

1905, 
1906. 



c. 243 
c. 370, 

c. 280, 
c. 421 
c. 243 
c. 330 
c. 422 



§2 

1907, c. 576, §§ 79, 80 
§§80, 122 



1908, 
1909, 



c. 584 
c. 447 
c. 601 
c. 524 

c. 534 



§5 



1910, 



1911, 



1912, 
1913, 



§2 

— §17 
c. 536, § 2 

§3 

c. 582, § 1 
c. 583, § 2 
c. 597, § 2 
c. 468 
c. 532 
c. 669 
c. 673 
c. 518 
c. 694 
c. 138 
c. 519, § 
c. 577 



1914, 



c. 700, § 
c. 741 
c. 832. § 
c. 814 
c. 835. § 
c. 119 
c. 217 
c. 795 



§ 1. 2 

§ 1, 2 
§3, 4 

6 (1) 

SO 



§3 

1915 (Gen.) c. 60 
c. 76 



1916, 
1916 
1918 



c. 138 . 

(Gen.) c. 
(Gen.) c. 



138 
262 



§3 
§5 



PAGE 

457 
626 
176 
176 
61 
457 
192 
61 
61 
488 
487 
57, 58 
19, 523 
. 548 
. 232 
. 233 
. 370 
. 118 
. 59 
. 245 
. 295 
. 233 
. 234 
. 295 
632, 633 
. 548 
. 612 
. 579 
. 295, 
. 481 
. 401 
429, 430 
. 133 
. 173 
562, 564 
. 234 
121, 122 
352, 354 
. 593 
133, 174 
397, 399 
. 627 
. 264 
397, 398 
. 187 
. 264 
265, 266 
68, 192, 602 
. 193 
194, 434 



STATUTES CITED. 



IX 



Statutes of the Commonwealth — Con. 



1918 (Gen.) 

1917, c. 233, 

1918, c. 257 

1918 (Spec.) 

1919 (Gen.) 
1919 (Gen.) 



1919 (Spec.) 
1920, c. 70 



e. 291, § 22 
c. 362, § 5 

§2 . 

§ 113 . 
c. 159 . 

§§2, 

c. 150 . 

§5 

c. 252, §§ 2, 
c. 283 . 

§3 

c. 350, §§ 1, 

§43 

pt. 3, 

§99 

§ 123 

c. 369 
c. 83 



§§56, 




20, 22 



20, 21 



PAGE 

632, 633 
. 433 
. 121 
. 122 
14, 77, 274 
75,77 
. 136 
. 137 
. 550 
. 71 
. 72 
. 67 
. 430 
58 69, 192 
. 628 
. 233 
. 14 
. 80 
. 265 
263, 266 
. 592 
. 262 
. 261 
. 593 
. 457 
. 603 
. 215 
. 645 
. 432 
. 130 
347, 348 
210, 211 
. 276 
. 603 
376, 377 
578, 579 
183, 184 
, 306, 307, 308 
. 250 
171, 385 
276 
173 
174 
176 
46 

379, 380, 381 
584 
394 
554 
186 



1922, 



1923, 



e. 95 

c. 176 . 
c. 221 . 
e. 231 . 
c. 330 . 
c. 341 . 

§1 

c. 349 . 
c. 377, § 1 
c. 383 . 
c. 488, § 1 

§2 ' 

§3 

c. 520, § 7 
c. 545, § 1 
c. 130 . 
0. 329 . 
c. 338 . 
c. 348 . 

§2 

c. 362, § 10 

§92 



§§45, 48, 52 
§54 



1924, 



1925, 



c. 363 . 
0. 377 . 

§§1,2, 
c. 381, § 3 
c. 399 . 
c. 457 . 

§7 

c. 464, §§ 4, 6 
c. 480 . 

§§ 2, 4, 

c. 53 

c. 93, § 3 
c. 180 . 
c. 219 . 
e. 251, § 1 

§2 

c. 257 . 
c. 281, § 2 
c. 327 . 
c. 334 . 
c. 354 . 
c. 465 . 

§ 112 

c. 500, § 2 

c. 12 
c. 18 



17 



5, 14 



PAGE 

80, 81 

142, 144 
. 260 
. 309 
. 307 
. 304 
20, 21, 637 

197, 355 
. 405 
380, 381, 382 
. 312 
. 312 
, 312 
. 467 
. 195 

387, 388 
. 526 
. 497 
. 355 
. 355 
. 574 
. 195 
. 434 

299, 300 
. 348 

359, 360 
. 357 
. 95 
. 516 

251, 252 
. 197 

575, 576 
14, 75 
76,78 

171, 172 
. 197 
. 211 
. 129 
. 96 
97, 98, 99 
. 139 
89, 110 
. 24 
. 23 
. 516 
. 128 
. 129 
. 407 
22, 638, 639 
. 95 



96 



STATUTES CITED. 



Statutes of the Commonwealth — Con. 



1925, c. 90 
c. 97 



c. 101, § 1 
c. 165 . 
c. 180, § 1 
c. 228 . 
c. 244 . 
c. 249 . 
c. 253 . 
c. 281, § 2 
c. 288, § 1 
c. 335 . 
§1 
c. 336, § 2 
c. 339, § 3 
c. 343, § 1 
c. 345 . 
§2 



c. 206 . 
c. 212 . 
c. 215 . 
c. 239 . 
c. 267, § 1 
c. 281 . 
c. 343, § 7 
c. 363 . 



c. 368 



§2 
§1 



§ 10 

c. 369, § 2 



1906, c. 49 
1908, c. 127 
1911, c. 103 
1921, c. 5 



c. 36, § 78 







PAGE 










page 




. 97 


1926, c. 


375 . 




. 614 


490, 


493, 508 


c. 


391, § 4 . 




. 127 




. 504 


c. 


393, § 5 . 




. 197 






. 585 


c. 


395, §§ 123, 131A 




159, 160 






. 551 


1927, c. 


72 . . . 




550. 629 






. 321 


c. 


131 . 




398, 399 






. 249 


c. 


135 . 




. 476 






. 518 


c. 


147 . 


384, 502, 503 






. 192 


c. 


148 . 438, 439 


440,441,443, 






390, 581 








466, 467 






. 8,9 


c. 


173 . 


607, 608, 609 






173, 175 


c. 


194 




350, 351, 352 






. 45 


c. 


198 . 






331, 334 






83, 85 


c. 


267, § 2 






. 576 






. 644 


c. 


274, § 2 




590, 591, 592 


322, 


445, 446 


c. 


289, § 1 






. 641 




. 112 


c. 


301 . 






352, 353 


112 


113, 117 


c. 


321, §§4.7, 


12 424 


425, 426, 427 


112 


113, 161 


c. 


327 . 






364, 365 




. 636 


1928, c. 


40, § 1 






. 554 






. 205 


c. 


128. § 1 






448, 449 






. 373 





— §§1.2 






445, 447 






. 248 


c. 


205 . 






. 487 






. 260 


c. 


215 . 






517, 518 






. 555 


c. 


269 . 






. 475 






. 578 


c. 


274 . 






. 506 






427. 428 


c. 


320 . 






499, 500 






578, 579 


c. 


357 . 






. 522 






. 268 


c. 


360. § 2 






. 588 






270, 391 


c. 


384 . 






. 516 






. 146 


c. 


406 . 






. 530 






. 202 


1929. c. 


313 . 






629, 630 






162, 202 


c. 


351 . 






. 643 






. 163 




— §4 






. 646 






. 453 


c. 


383, §§ 2. 12 




647, 648 




Resoi 


uVE3. 










PAGE 








page 




. 401 


1927, c. 


25 . . . 




. 465 




. 59 


c. 


30 . . . 




. 344 




. 241 


1928, c. 


13 . . . 




. 465 




. 464 


1929, c. 


43 . . . 




. 586 




Revised i 


Statutes 










PAGE 








PAGE 






. 470 


c. 83, 


§7 . 






. 11 



STATUTES CITED. 



XI 







Public Statutes. 








PAGE 


PAOE 


c. 


19, §§ 6-18 


. 219 c. 217, §1 
Revised Laws. 


. 478 






PAGE 




PAOB 


c. 


18. § 1 


. 275 


c. 90, § 12 . 


. 571 


c. 


19, § 21 . 


. 136, 138 


§28 . 


. 560 




— §37 . 


. 632, 633 


c. 96, §§ 21, 22, 23 . 


. 222, 223 


c. 


80, § 1, cl. 2nd . 


. 612 


c. 103, §§ 1, 2 . 


. 246. 247 


c. 


81, §21 . 


. 598 


c. 118, § 76 . 


. 486, 487 



General Laws. 







PAGE 






PAGE 


c. 4, 


§1 


. 102 


0. 32, 


§§ 2 (4) 


, 3 (3) . . .22 




§4 . 


. 529, 530 




§2(3) 


. 21 




§6 . 


. 591 




§6 


. 321 




§ 6, cl. 4th 


. 552 




§7 


.607 


c. 6, 


§ 10 


. 196 




§§ 8 (4) 


, 10 (3) . . 123 


c. 4 


§ 7, cl. 26th 


11, 12 




§9 (2) 


. 124 




§ 7, par. 36 


. 514 




§ 10 (1) 


. 122 


c. 7, 


§9 . 


. 195 




§ 10 (3) 


. 124 


c. 8, 


§9 . 


. 574 




§ 10 (3) 


. (4), (5) . . . 123 


c. 10, 


§12 . 


. 520 




§ 10 (5) 


. 320 


c. 12, 


§3 . 


. 125 




§ 11 (4) 


. 122 




§9 . 


70, 75 




§ 11 (4) 


. 120, 121 




§ 18 . 


. 393 




§20 


. 110 


c. 14, 


§§4,8. 


. 307 




§§20-2 


5 . .89, 90, 91 




§ 14 . 


. 304 




§21 


. 93 


c. 15, 


§4 


. 64 




§22 


. 93 




§§1.4. 


68, 69 




§33 


. 123 




§§4, 19 


. 433 




§§46-4 


8 . . 547, 548 




§5 . 


634, 635, 636 




§§ 80, 8 


5 . .420 




§ 19 . 


. 192 


c. 33 




. 128 




§20 


. 25 




§52 


. 139 


c. 30, 


§ 10 . 


. 275 




§ 136 


. 345 




§21 . 


. 605 


c. 34, 


§5 


. 365, 366 


c. 31, 


§3 . 


572, 637, 638 




§12 


. 126 




§5 


. 389 


c. 35. 


§4 


. 407 




§§ 10, 15, 23 


. 593 




§45 


. 270 




§17 . 


. 188 


c. 38, 


§6 


. 143 




§23 . 


. 136, 137 




§§2, 16 


. 594 




§24 . 


135, 136, 137 




§7 


. 144 




§26 . 


. 603 


c. 40, 


§§1.5 


. 155 




§43 . 


. 49 




§5 


. 496 


c. 32, 


§2(4) . 


. 527 




§9 


. 156 




§2 . 


. 637 




§41 


404, 405, 510, 511 




§§ 1-5 . 


. 304, 305. 307 


0. 42, 


§1 


. 507 




§ 2 (2) and (3 


), 46-48 . . 549 


c. 43, 


§18 


. 452 




§§2,3. 


. 20 




§§ 52, 5 


4 . . . .463 



Xll 



STATUTES CITED. 



General Laws — Con. 



n 79-92 
!§ 90, 91 



c. 54, 



c. 62, 



c. 63, 



71, 



c. 79 



PAGE 

569, 570 

571 

496 

498 

142, 582, 601 

583 

130 

345 

420 

474, 475 

622 

507 

508 

69 

503 

530 

125, 126 

243 

513, 514 

31 

319 

317 

307 

324, 325, 448 

242 

30 

38 

325 

37 

40 

37 

539 

595 

12 

368 

302 

349 

304 

. 310, 311 

302, 468, 469 

. 310 

68. 69 

. 192 

. 602 

. 193 

25, 26 

. 433 

. 454 

. 189, 190 

. 346, 347 



c. 80 



c. 81, 



c. 89, 
c. 90 



§§1.2. 
§§4. 13 
§4 
§6 

§§4, 5, 6 
§22 



§1 

§ 2 .88, 89, 

§§10,22,23 

§ 18 . 

§ 19 . 

§24 . 

§28 

§34 . 

§34a . 

§ 34e . 

c. 91, § 14 . 

§§ 14, 15, 22, 23 

§17 . 

§22 . 

§ 22, 23 

§29 . 
§30 . 



c. 93 
c. 94 



c. 101, 
c. 107, 
c. 110, 
c. Ill, 



}35 . 

j78 . 

j§ 104-111 

! 110 . 

!§ 110, 114 

!§ 112, 113, 

!§ 118-128 

!§ 126, 128 

! 128 

! 187 

il 

(208 

(5 

18 

J48 

J78 

!87 

i 119 

j 121 

) 122 



c. 112, § 8 



§24 

§§ 44-53 



114 



PAGE 

. 252, 254, 455 

360, 361, 356, 362 

. 251 

182, 185 

. 249 

. 183 

. 190 

18, 19, 20, 74 

. 403 

368, 369, 370, 402 

118, 151, 337, 429 

. 577, 578 

18, 19, 58, 59, 60 

. 551 

. 437 

. 58 

8 

147, 148, 149, 150 
. 161 
. 225 
. 219 
. 282 
. 284 
. 216 
. 24 
10, 23, 24 
. 166 
. 382 
. 553 
. 43 
. 167 
. 168 
. 169 
. 279 
570, 571 
. 279 
. 684 
. 504 
. 106 
. 516 
494, 495 
. 145 
364, 365 
. 366 
. 601 
456, 457 
. 212 
. 613 
. 173 
386, 387 



STATUTES CITED. 



XUl 



General Laws. 



Con. 



112, § 

— § 

114, § 

115, § 

116, § 

117, § 
119. § 
123 



45 . 

87e . 

45 

§ 17, 18 

1, cl. 3rd 

22 . 

16 . 



§§ 88-94 

§96 

§§ 101, 102. 

c. 125, § 7 

§39 



103 



126 
127, 



128, 
129, 



130, 
131. 
138. 
140, 



141, 
142 



376 



§§95,96 

§§ 109, 128-131 

§§ 128-150 

§ 133 . 

§ 152 . 

§§ 156, 157 

§§ 16-31 

§2 . 

§ 15 . 

§ 15-17 280, 

§2 

§§ 17-19 

§2 

§67 . 

§64 . 

§71 . 

§96 . 

§§96-114 

§ 183a . 

§ 183b . 

§ 183c . 

§4 



143, 
146, 



147, 
148, 



§§ 1, 2, 3, 6. 
§4 . 
§6 . 
§§6,7. 
§3 . 
§34 . 
§46 

§§ 32-51 
§ 14 . 
§§ 10. 24 
§§10. 14. 30. 
§§ 10, 30 
§§ 14, 31 



8.9 



31 



PAGE 

259, 277, 502 
. 515 
. 142 
. 267 
. 612 
596, 597, 598 
. 200 
. 619 
. 329 
. 339 
. 328 
. 456 
457, 641 
. 241 
. 200 
. 456 
7 
. 206 
6, 7,8 
. 7,8 
. 238 
558, 559, 560 
279, 570. 571 
377, 378, 444. 445 
. 560 
. 485 
. 560 
. 351 
. 44 
. 526 
. 642 
. 529 
. 501 
. 500 
. 501 
. 341 
. 246, 247 
294, 295, 296 
. 245 
. 244 
. 340, 341 
. 626, 628 
368, 370, 371. 561 
273. 274 
. 256 
45, 57, 80 
. 450 
. 81 
. 627 
552, 553 



c. 148, §§ 14, 15, 28, 30, 31 

§28 . 

§§ 28, 30 

§30 . 

§§30.31 

§§30,31.45 

§§30.31,51 

§39 . 

§45 . 

c. 149, § 26 . 

§ 1, 6. 13. 106 

§38 . 

§§ 47. 48, 50 

§ 148 . 

§§ 148, 150 

c. 155, § 20 . 
c. 156, §§ 6, 11 

§11 . 

§ 12 . 

§§41,44 



c. 158 
c. 159 
c. 160 
c. 164 
c. 166 



§ 12, 33 
§48 . 
§§93.94 
§21 . 

§§ 21. 22. 25 

c. 167. § 14 . 

§24 . 

c. 168 . 

c. 170 



§ 54, cl. 7th 



§ 12 . 

§§ 12, 26 

c. 172, § 18 . 

§24 . 

§§ 24, 25 

§§ 49, 52-54 

10 . 



c. 174 
c. 175 



§2 . 

§ 47, cl. 4 

§ 47, cl. 4th (b) 

§ 47, cl. 6th 

§ 47. cl. 11th 

§49 . 

§80 . 

§83 

§ 113a . 

§ 113b . 

§123 . 



147 



page 
. 133 
. 506 
. 177 
. 264 
46, 82, 174 
263, 265, 266 

624. 625 
. 626 

263. 489 
. 227 

523, 524 

504. 505 
. 278 
. 105 

106, 109 
. 557 

409, 410 
. 181 
. 181 

555, 557 
. 313 
. 543 
84, 87 
. 62 

224, 225 
. 1, 2 

535. 537 

13, 314. 315 

. 537 

469. 470 
. 286 
. 287 
. 290 
. 557 
. 313 
314, 315, 316 

531, 532 

. 453 

. 545 

42, 482 

112, 113 

152, 154 

411, 412 
. 408 

409, 410 
. 413 
. 412 
148, 149, 150 
112 
483 



31.' 



XIV 



STATUTES CITED. 



General Laws — Con. 



c. 175, 



§ 132, cl. 2 
§ 133 . 
§ 133, 134 
§§ 143, 145 
§ 152 . 
§ 162, 172 
§§ 181-185 
§§ 182-184 
§ 192 . 



c. 176 




PAGE 






PAGE 


614, 615, 618 


c. 233, 


§§ 12, 13 


478, 479, 480 


. 434 


c. 252 




. 252, 355 


458, 459, 460 




§13 . '. '. 


. 253 


. 488 




§§13,14 . 356,358,359,360, 


. 152 






361, 362 


. 297 


c. 253 




. 485 


. 413 


c. 258 




. 474 


. 521 


c. 259, 


§ 6 ; 


86, 87 


. 149, 616 


c. 262, 


§50 . 


. 406 


. 610, 612 


c. 265. 


§2 . 


. 640, 641 


. 414 


c. 266, 


§30 . 


. 199 


373, 374, 375 




§89 . 


54, 55 


. 545, 546 


c. 268, 


§16 . 


. 158 


. 431 


c. 272, 


§ 16 . 


. 343 


. 355 


c. 273, 


§20 . 


. 339 


. 428 


c. 274, 


§1 . 


. 157, 343 


. 582 


c. 279 




. 342 


. 600 




§ 16 . 


. 157 


. 201, 202 




§§ 16, 18 


. 201 


. 338, 339 




§ 18 . 


. 344 


. 11 




§19 . 


. 157 


. 333 




§36 . 


597, 598, 599 


. 268, 269 




§44 . 


. 641 


. 645 


c. 280, 


§2 


. 479 


. 169 


c. 281, 


§2 . 


. 598 


. 21 


c. 282 




245, 246. 247 


. 108 









CASES CITED. 



XV 



Table of Cases Cited in this Volume. 



PAGE 
55 

102 



Ackerman v. Green, 201 Mo. 231 
Adams v. Adams, 211 Mass. 198 
Express Co. r. Ohio, 166 U. S. 

185, 223-225 .... 

Air-Way Corporation v. Day, 266 

U. S. 71 

American Bridge Co. of New York v. 

Boston, 202 Mass. 374, 375 . 
Ansin v. Mutual Life Ins. Co., 241 

Mass. 107, 111 .... 
Anzalone v. Metropolitan District 

Commission, 257 Mass. 32, 36 
Ashby V. Eastern R. R. Co., 5 Met. 368, 285 
Atlantic National Bank, petitioner, 261 

Mass. 217, 219 . 
Tel. Co. V. Philadelphia, 190 

U. S. 160, 163 ... . 

Attorney-General v. Apportionment 

Commissioners, 224 Mass. 598 
V. Boston & Albany R. R. Co., 

233 Mass. 460 . 
V. Boston & Lowell R. R. Co., 118 

Mass. 345 ..... 

V. Cambridge, 16 Gray, 247 

V. Drohan, 169 Mass. 534 . 21, 308 

V. Electric Storage Battery Co., 

188 Mass. 239 . . . 5, 92 
II. Haverhill Gas Light Co., 215 

Mass. 394 2 

V. Methuen, 236 Mass. 564, 578, 

579 

V. Pelletier, 240 Mass. 264 . 

V. Revere Copper Co., 152 

Mass.»444 ..... 5 

V. Tillinghast, 203 Mass. 539 21, 308 

V. Trehy, 178 Mass. 186, 188 . 48 

V. Tufts, 239 Mass. 458, 480 92, 435 

Ayers v. Hatch, 175 Mass. 489 . . 603 

Bacon v. Boston Elevated Ry. Co., 

256 Mass. 30 ... . 

Baltic Mining Co. v. Commonwealth 

207 Mass. 381, 390 
V. Massachusetts, 231 U. S. 68 . 



38 



38 



108 



107 



216 



533 



38 



400 



15 



220 
566 



5 

435 



337 



Ban V. Columbia Southern Ry. Co., 117 
Fed. 21, 30 

Bancroft v. Cambridge, 126 Mass. 438 

Barnard v. Graves, 16 Pick. 41 . 

Barrett v. Mead, 10 Allen, 337 . 

Barrows v. Farnum's Stage Lines Inc., 
254 Mass. 240 . 

Bass, Ratcliff &Gretton, Ltd., v. State 
Tax Commission, 266 U. S. 271 

39, 447 

Bates V. Selectmen of Westfield, 222 
Mass. 296 

Beauchamp v. Snider, 170 Ky. 220 . 

Beers v. Glynn, 211 U. S. 477, 484 . 

Bell's Gap R. R. Co. v. Pennsylvania, 
134 U. S. 232, 237 .. . 

Bennett v. Wellesley, 189 Mass. 308 . 

Bigelow V. Bemis, 2 Allen, 496 . 

V. City Council of Worcester, 169 

Mass. 390 

Blair v. Birkenstock, 271 U. S. 348, 

350-1 

Affirming S. C, 6 Fed. (2d) 679 (ct. 
of Ap. D. C.) 

Blandford v. Gibbs, 2 Cush. 39 . .62 

BHss V. Bliss, 221 Mass. 201 . . 79 

V. Deerfield, 13 Pick. 102 . 183, 250 

Boettcher v. Lancaster County, 74 
Neb. 148 270 

Bogigian v. Commissioner of Corpora- 
tions and Taxation, 248 Mass. 545, 
548 

Bogni V. Perotti, 224 Mass. 152 . 

Boston, petitioner, 221 Mass. 468 

V. Chelsea, 212 Mass. 127 . 

V. Treasurer and Receiver Gen- 
eral, 237 Mass. 403, 413 . 14, 62 

Electric Light Co. v. Boston Ter- 
minal Co., 184 Mass. 566 . . 481 

Molasses Co. v. Commonwealth, 

193 Mass. 387 ... . 474 

Boutlier v. Maiden, 226 Mass. 479 . 339 

Bradford v. McQuesten, 182 Mass. 80 . 220 



223 

27 

107 

86 



38, 



603 

156 

39 

39 
250 

428 

250 
444 



. 441 

48, 419 

. 566 

. 79 



XVI 



CASES CITED. 



Brick V. Barney, 183 Mass. 133, 137 . 106 
Brightman's Case, 220 Mass. 17 . . 395 

Brightman v. Bates, 175 Mass. 105 . 318 
Broadbine v. Revere, 182 Mass. 598, 

600 79 

Brooks V. Fitchburg & Leominster St. 

Ry. Co., 200 Mass. 8 . . 378, 599 

Brown v. Boston & Maine R. R., 233 

Mass. 502, 512 . . . .85 

V. Russell, 166 Mass. 14 . 48, 94 

Brushaber v. Union Pacific R. R. Co., 

240 U. S. 1, 20 . . . . 30 
Bryant v. Rich's Grill, 216 Mass. 344 479 
Bucher v. Fitchburg R. R. Co., 131 

Mass. 156 428 

Buck V. Kuykendall, 267 U. S. 307 . 5 
Bulkeley v. New York, New Haven & 

Hartford R. R. Co., 216 Mass. 432, 

433. 434, 440 .. . 85, 87 

Bullard v. Randall, 1 Gray, 605, 606 . 106 
Bullivant v. First National Bank of 

Boston, 246 Mass. 324, 334 . 
Burrage v. County of Bristol, 210 Mass. 

299, 301 

Burrill v. Locomobile Co., 258 U. S. 

34 

Byfield v. Newton, 247 Mass. 46 . 
Cambridge v. Lexington, 17 Pick. 22 . 
Campbell v. Commissioner of Banks, 

241 Mass. 262, 265 .. . 
Catholic Order of Foresters v. Com- 
missioner of Insurance, 256 Mass. 
502 

Cary Library v. Bliss, 151 Mass. 

364 . . . 17,28,34,36,568 

Cavender v. Cavender, 10 Fed. 828 . 270 
Charlotte Harbor Ry. v. Welles, 260 

U.S. 8 

Chase v. Sutton Mfg. Co., 4 Cush. 152 
Chase National Bank v. United States, 

278U. S. 327 .... 

Citizen's Telephone Co. v. Fuller, 229 

U. S. 322 

Clallam County v. United States, 263 

U. S. 341 

Clark V. Gaskarth, 8 Taunt. 431 . 
& Murrell v. Port of Mobile, 67 

Ala. 217 

Clemens Electric Mfg. Co. v. Walton, 

168 Mass. 304 . 
Clement v. Putnam, 68 Vt. 285 . 
Cleveland v. State, 7 Ga. App. 622 



534 

222 

31 
140 
566 

533 



415 



95 

27 

539 

40 

455 
224 

79 

270 
223 
423 



542 



421 



461 



403 

28 



485 



63 



314 



PAGE 

Cline V. Frink Dairy Co., 274 U. S. 445, 

457 

Codman v. Crocker, 203 Mass. 146, 

149 

Coleman v. New England Mutual Life 

Ins. Co., 236 Mass. 552, 554 . 
Collector of Taxes v. New England 

Trust Co., 221 Mass. 384 . 
Collins V. Greenfield, 172 Mass. 78 . 

Mfg. Co. V. Wickwire Co., 14 

Fed. (2d) 871 ... . 

Commercial National Bank v. Wein- 

hard, 192 U. S. 243, 249 . 
Commissioner of Banks v. Cosmopoli- 
tan Trust Co., 253 Mass. 205, 226 . 

V. Prudential Trust Co., 242 

Mass. 78, 86 . . . . 314 

Commonwealth v. Acker, 197 Mass. 91 423 

V. Boston, 97 Mass. 555 . . 2 

V. Boston & Albany R. R. Co., 

150 Mass. 174 . . . . 183 

V. Boston & Maine R. R., 222 

Mass. 206 . . . . 418, 419 

V. Certain Intoxicating Liquors, 

253 Mass. 581 . . . .44 

V. Gile, 217 Mass. 18 . . .19 

V. Grifiith, 204 Mass. 18, 21 . 195 

V. Gussman, 215 Mass. 349 . 167 

V. Hana, 195 Mass. 262 . 48, 94 

V. Interstate, etc., St. Ry. Co., 187 

Mass. 436, 438, 439 . . 48, 94 

V. Kozlowsky, 238 Mass. 379, 386, 

387 70, 122 

V. Lavery, 188 Mass. 13 . .2 

V. Lowell Gas Light Co., 12 Allen, 

75, 77 224 

V. Mack, 187 Mass. 441 . . 257 

V. McCarthy, 225 Mass. 192 . 246 

V. Nebo Cons. Coal & Coking Co., 

141 Ky. 493 .... 423 

V. NewhaU, 205 Mass. 344 . 19, 59 

V. Nickerson, 236 Mass. 281 .213 

V. Packard, 185 Mass. 64, 67 . 58 

V. Riley, 210 Mass. 387, 395, 396 195 

V. Sacco, 255 Mass. 369, 444 . 393 

V. Smith, 10 Allen, 448, 455, 456 1 

V. Strauss, 191 Mass. 545, 550-1 . 419 

V. United States Worsted Co., 

220 Mass. 183 ... . 588 
V. Worcester, 3 Pick. 462, 474 . 421 



CASES CITED. 



XVll 



PAGE 

Commonwealth-Atlantic National 

Bank, petitioner, 249 Mass. 440, 

447-448 .... 533, 534 
Cones V. Benton County, 137 Ind. 404 184 
Connally v. General Construction Co., 

269 U. S. 385, 391 . .542 

Connecticut Valley St. Ry. Co. v. North- 
ampton, 213 Mass. 54, 63, 64 . 220 
Connolly v. Union Sewer Pipe Co., 184 

U. S. 540, 558-563 . . 48, 94 

Cook V. Mills, 5 Allen, 36, 37 . . 108 

Corliss V. Civil Service Commissioners, 

242 Mass. 61 . . . .136 

Cotting V. Kansas City Stock Yards 

Co., 183 U. S. 79, 102-112 . 48, 94 
Crawford v. Nies, 224 Mass. 474, 488 17 
Crompton v. Williams, 216 Mass. 184 

118, 516 
Crutcher v. Kentucky, 141 U. S. 47 . 4 
Cudahy Packing Co. v. Minnesota, 246 

U.S. 450, 453 . . . .38 

Cunningham v. Commissioner of Banks, 

249 Mass. 401, 426 .. . 314 
V. Mayor of Cambridge, 222 Mass. 

574, 577 

Cushman v. Libbey, 15 Gray, 358, 361 
Cutter V. Middlesex Factory Co., 14 

Pick. 483, 484 
Dahnke-Walker Co. v. Bondurant, 257 

U. S. 282, 290, 291 
Davis V. Anchor Mutual Fire Ins. Co., 

96 la. 70 

V. Boston, 190 Mass. 194 . 

V. Chilmark, 199 Mass. 112 

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

Mass. 258 .... 

V. Rockport, 213 Mass. 279 

Delano v. Butler, 118 U. S. 634 . 
Derenza's Case, 229 Mass. 435, 442 . 
Detroit v. Detroit Citizens' St. Ry. 

Co., 184 U. S. 368, 382 . 
Dexter v. Phillips, 121 Mass. 178, 180 . 
Diamond Match Co. v. Ontonagon, 188 

U.S. 82 

Dingley v. Boston, 100 Mass. 544 
Donaghy v. Macy, 167 Mass. 178 
Doyle V. Continental Ins. Co., 94 U. S. 

535, 540, 541 ... . 

Ducey v. Inhabitants of Webster, 237 

Mass. 497 ..... 
Duggan V. Peabody, 187 Mass. 349 . 



452 
107 



108 



44 

28 

469 

288 

27 

315 

122 

62 
123 

168 
27 
92 



156 

28 



15 



448 
475 



526 



PAGE 

Dupee V. Boston Water Power Co., 114 
Mass. 37, 43 . . . . 86 

Durfee v. Old Colony & Fall River 
R. R. Co., 5 Allen, 230 . 

Eaton, Crane & Pike Co. v. Common- 
wealth, 237 Mass. 523, 527 

Eidman v. Martinez, 184 U. S. 578 . 

E. J. Fitzwilliam Co., Inc., v. Common 
wealth, 258 Mass. 103, 107 . 

Employer's Liability Ass. Co. v. Com- 
missioner of Insurance, 64 Mich. 614 476 

Essex V. New England Tel. Co., 239 
U. S. 313 . . . . 3, 226 

Fairbanks v. Kemp, 226 Mass. 75 . 337 

Fargo V. Hart, 193 U. S. 490 . . 38 

Feinberg v. Levine, 237 Mass. 185, 187 107 

First National Bank v. Anderson, 269 
U. S. 341, 347 ... . 

V. Watkins, 154 Mass. 385, 387 . 

First National Bank of Hartford v. 
Hartford, 273 U. S. 548 

First National Bank in St. Louis v. 
Buder, 8 Fed. (2d) 883, 885 . 

Fisher's Case, 220 Mass. 581 . 

Fitchburg R. R. Co. v. Boston & Maine 
R. R., 3 Cush. 58, 87 . . . 

Flanagan v. F. W. Carlin Const. Co., 
134 App. Div. 236 ... 

Fogg V. Order of the Golden Lion, 159 
Mass. 9 .... . 

Forbes v. Willamette Falls Electric 
Co., 19 Or. 61 . 

Forbes Boat Line v. Board of Commis- 
sioners, 258 U. S. 338 . . 30, 95 

Foss V. Wexler, 242 Mass. 277, 279 

57, 174, 552 

French v. Jones, 191 Mass. 522 . . 2 

Fuller V. Andrew, 230 Mass. 139, 145 . 223 

Garfield v. Bemis, 2 Allen, 445 . . 428 

General Baking Co. v. Street Commis- 
sioners, 242 Mass. 194, 196 . 133, 145 

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

V. Lewis, 233 U. S. 389 

Getchell v. Chase, 124 Mass. 366 

Giant Powder Co. v. Oregon Pac. Ry. 
Co., 42 Fed. 470 . 

Gilson V. Cambridge Savings Bank, 
180 Mass. 444 . 

Gleason v. Inhabitants of West Boyls- 
ton, 136 Mass. 489 ... 328 



323 
106 



323 



242 
395 



220 



223 



374 



223 



113 
463 
107 

223 

291 



XVUl 



CASES CITED. 



Glickman v. Commonwealth, 244 Mass 

148 

Goddard v. Chaffee, 2 Allen, 395 . 
Golding's Petition, 57 N. H. 146 
Goldthwait v. Day, 149 Mass. 185, 187 108 
Goodwin v. Mass. Loan, etc., Co., 152 

Mass. 189 107 

Graham v. Roberts, 200 Mass. 152, 156, 

157 92, 93 

Grand Rapids v. Braudy, 105 Mich. 

670, 678 

Great Southern Life Ins. Co. v. Russ 

14 Fed. (2d) 27 ... . 

Gulf, Colorado & Santa Fe Ry. Co. v. 

Ellis, 165 U. S. 150, 155, 165 . 48, 94 

Guinan v. Famous Players-Lasky 

Corporation, Mass. adv. sh. (1929), 

1297, 1305 

Haley v. Boston, 191 Mass. 291 . 
Hamann v. Heekin, 88 Ohio St. 

207; 12C. J. 1117 
Hanley v. Cook, 245 Mass. 563, 565 . 
V. Eastern S. S. Corpn.. 221 

Mass. 125 ..... 
Hanscom v. Maiden & Melrose Gas 

Light Co., 220 Mass. 1 . . 441, 500 

Hawkins v. Bare & Carter, 63 W. Va. 

431 

Higginson v. Turner, 171 Mass. 586, 

591 

Hill V. Boston, 122 Mass. 344, 357 

V. Fuller, 188 Mass. 195, 200 

Hitchcock V. State, 34 So. Dak. 124 . 
Hobart v. Plymouth, 100 Mass. 159, 

163 

Holden v. James, 11 Mass. 396 . 
Hollingsworth & Vose Co. v. Recorder 

of the Land Court, 262 Mass. 45 . 
Houston, etc., R. R. v. Inman, 63 Tex. 

Civ. App. 556 .... 
Hubbard v. City of Taunton, 140 Mass. 

467 

Hunter v. Wetsell, 17 Hun. N. Y. 135 . 
Interstate Amusement Co. v. Albert, 

239 U. S. 560 
In re Price, 168 Mich. 527 . 
In re Rahrer, 140 U. S. 545 
International Paper Co. v. Common- 
wealth, 232 Mass. 7 . . . 
IsbeU V. Greylock Mills, 231 Mass. 233 485 
J. Doherty, 207 Fed. 997, 999, 1000 . 224 
Jackson v. Stevenson, 156 Mass. 496 . 431 



526 

402 
450 



221 



462 



625 
451 



48 
174 



403 



55 

421 
421 
106 
156 

183 

48 

441 

475 

155 
107 

5 
423 
241 

31 



PAGE 
156 

55 

291 
108 



James v. Seattle, 22 Wash. 654 . 
Jersey City v. Hall, 79 N. J. L. 559 . 
Jewett V. West Somerville Co-opera^ 
tive Bank, 173 Mass. 54 

V. Winship, 42 Vt. 204 

Johnson v. Wyman, 9 Gray, 186, 189 . 250 
Jones V. Broadway Co., 136 Wis. 595 . 55 

V. Robbins, 8 Gray, 329 . .157 

Juggins V. Executive Council, 257 Mass. 

386 327 

Keefe v. Lexington & Boston St. Ry. 

Co., 185 Mass. 183 . .221 

Kelly V. Owen, 7 Wall, 496, 498 . 622 

Kennedy's Case, 135 Mass. 48, 51 6, 327 
Kennedy v. Commissioner of Corpora- 
tions and Taxation, 256 Mass. 426, 

429 449 

V. Palmer, 6 Gray, 316 . . 102 

Kentucky Union Co. v. Kentucky, 219 

U. S. 140, 152 . . . .30 

Keystone Grape Co. v. Hustis, 232 

Mass. 162, 165 . . . . 107 

Kilgour V. Gratto, 224 Mass. 78 . . 626 

Kinsman v. Cambridge, 121 Mass. 558 428 
League v. Texas, 184 U. S. 156, 161 . 

443, 467 
Le Donne, petitioner, 173 Mass. 550 . 328 
Lee V. Osceola, etc., Improvement Dis- 
trict, 268 U. S. 643 ... 455 
Leonard v. Draper, 187 Mass. 536 . 86 

V. Middleborough, 198 Mass. 221 496 

Lever Bros. Co. v. Commonwealth, 232 

Mass. 22 31 

Lewis V. Webb, 3 Me. 326 . . . 48 

Little V. Holyoke, 177 Mass. 114 .28 

Loring v. Young, 239 Mass. 349, 368 . 65 
Lowell V. Archambault, 189 Mass. 70 

146, 340 

V. Boston, 111 Mass. 454, 461, 462 104 

Louisiana, etc., Ry. Co. v. State, 85 Ark. 

12 423 

Madisonville Traction Co. v. St. Ber- 
nard Mining Co., 196 U. S. 239 
Marble v. Treasurer and Receiver Gen- 
eral, 245 Mass. 504 
Marcus v. Board of Street Commis- 
sioners, 252 Mass. 331, 335 

V. Commissioner of Public Safety, 

255 Mass. 5 . . . . 

Marlett v. Jackman, 3 Allen, 287 
Mass. Agricultural College v. Marden, 
156 Mass. 150, 156 .. . 193 



16 



537 



174 



133 
337 



CASES CITED. 



XIX 



PAGE 

Mass. General Hospital v. Belmont, 233 

Mass. 190, 200-202 . . 32, 94 
V. Weston Union Telegraph Co., 

141 U. S. 40, 45 . . . . 38 

Matter of Hermance, 71 N. Y. 481, 486, 

487 224 

McCulloch V. Maryland, 4 Wheat. 316 . 455 
McPherson v. Street Commissioners, 

251 Mass. 34, 38 . . . 174 

McLaughlin v. Newark, 57 N. J. L. 298 102 
Mercantile Bank v. New York, 121, 

U. S. 138, 161 . . . . 324 

Merchants National Bank v. Richmond, 

256 U. S. 635 . . . . 323 

Metropolitan District Commission v. 

Cataldo, 257 Mass. 38, 42 . .216 

Metropolitan Home Tel. Co. v. Em- 
erson, 202 Mass. 402 . 2, 220, 225 
Michigan Central R. R. v. Powers, 

201 U. S. 245, 293 ... 40 

Miller v. Lacy, 33 Tex. 351 . 106 

Milton V. Bangor Railway & Electric 

Co., 103 Me. 218 . . . .48 

Minneapolis v. Minneapolis St. Ry. 

Co., 215 U. S. 417, 426, 430, 431 . 62 
Minnesota v. First National Bank of St. 

Paul, 273 U. S. 561 .. . 323 

Minnesota Rate Cases, 230 U. S. 352 . 5 
Minot V. Russ., 156 Mass. 458, 459 106, 107 
Missouri Pacific R. R. Co. v. Boone 

270 U. S. 466 . . . . 242 

Moloney v. Selectmen of Milford, 253 

Mass. 400, 403-404 . . .530 

Montana Co. v. St. Louis Mining & 

Milling Co., 152 U. S. 160, 167 . 346 
Moore v. Graves, 3 N. H. 408 . . 450 

V. Stoddard, 206 Mass. 395, 399 . 10 

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

130 448 

V. Commonwealth, 215 Mass. 525, 

527 157, 598 

Mount Hope Cemetery v. Boston, 158 

Mass. 509, 521 ... . 565 

Mutual Life Ins. Co. of New York v. 

Hurni Packing Co., 263 U. S. 167 . 461 
Mutual Loan Co. v. Martell, 200 Mass. 

482, 485 109 

N. Ward Co. v. Street Commissioners, 

217 Mass. 381,385 . . .223 

Nash V. Commonwealth, 174 Mass. 335 

57, 223 



Nash V. 

376 . 
Nashua R. R. 

U. S. 356, 384 



PAGE 

United States, 229 U. S. 373, 

542 

Lowell R. R., 136 

62, 63 



Natick, 175 



Natick Gas Light Co 

Mass. 246 

National Wholesale Grocery Co. v. 
Mann, 251 Mass. 238, 250 . 

Neff V. Wellesley, 148 Mass. 487 

Nelson v. Ewell, 2 Swan (Tenn.), 271 . 

New England Tel. & Tel. Co. v. Bos- 
ton Terminal Co., 182 Mass. 397 . 

New England Trust Co. v. Abbott, 
162 Mass. 148, 152 . 

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

New Orleans Gas Co. v. Louisiana 
Light Co., 115 U. S. 650, 660-673 . 

New York Life Ins. Co. v. Renault, 11 
Fed. (2d) 281 ... . 

New York, N. H. & H. R. R. Co. v. 
New Haven, 70 Conn. 390 . 

Northern Life Ins. Co. v. Schwartz, 19 
Fed. (2d) 142 ... . 

Northwestern Life Ins. Co. v. Wis- 
consin, 247 U. S. 132 . 

Northwestern Trust Co. v. Bradbury, 
117 Minn. 83, 91 . 

O'Connell v. Retirement Board of the 
City of Boston, 254 Mass. 404, 406 

21, 92 

Oklahoma v. Kansas Nat. Gas. Co., 221 
U.S. 229, 262 .... 

Oliver v. Worcester, 102 Mass. 489, 499 

Opinion of the Justices, 3 Mass. 567 . 

117 Mass. 603 . 

138 Mass. 601 . 

145 Mass. 587, 690 

148 Mass. 623 . 

150 Mass. 586 . 

155 Mass. 598 . 

163 Mass. 589 . 

166 Mass. 589 . 

167 Mass. 599 . 

182 Mass. 605 . 

190 Mass. 611, 616, 621 

204 Mass. 607 

208 Mass. 614 

210 Mass. 609, 610, 611 

211 Mass. 608, 624 

216 Mass. 605 . 



481 

107 

28 

479 

481 

86 



354 



62 



462 



223 



462 



40 



315 



5 
28 
102 
. 92 
48, 93 
. 48 
. 75 
. 449 
. 140 
. 418 
48,94 
. 436 
. 140 

6, 100 
. 140 
. 75 

7, 327 
32, 140 

. 92 



XX 



CASES CITED. 



PAGE 

Opinion of the Justices, 217 Mass. 

607 75 

220 Mass. 627 . . . . 418 

234 Mass. 612, 616 . . . 566 

237 Mass. 613, 618, 619, 622 

34, 52, 568 

239 Mass. 606, 610, 612 . . 79 

240 Mass. 616 . . . . 100 

250 Mass. 591, 601 . . . 369 

251, Mass. 569 . . . . 463 

262 Mass. 603 . . . 491, 493 

Oregon-Washington Railroad & Navi- 
gation Co. V. State of Washington, 

270 U. S. 87 239 

Orr V. Keith, 245 Mass. 35, 39 . . 134 

Paraboschi v. Shaw, 258 Mass. 531 . 441 
Paracamph Co. v. Commonwealth, 33 

Ky. Law Rep. 981 .. . 423 

Paul V. Virginia, 8 Wall. 168 . .5 

Peck's Case, 250 Mass. 261, 268 . 407 

Pembina Mining Co. v. Pennsylvania, 

125 U. S. 181 . . . .5 

Penn. v. W. Virginia, 262 U. S. 553, 596, 

597 4 

Pennsylvania R. R. Co. v. Knight, 192 

U. S. 21 5 

Pensacola Tel. Co. v. Western Union 

Tel. Co., 96 U. S. 1 . . .3 

People V. Black, 122 Cal. 73 . . 475 

V. Davis, 269 111. 256 . . 423 

V. Fire Association of Phila- 
delphia, 92 N. Y. 311 . . .79 

V. New York, etc., Ry. Co., 84 

N. Y. 565, 568, 569 .. . 224 

V. Potts, 264 111. 522, 531 . 152, 153 

V. Quigley, 134 N. Y. S. 953 . 423 

Phillips, V. Metropolitan Park Com- 
mission, 215 Mass. 502 . . .138 
Pierce v. Drew, 136 Mass. 75 . 2, 220 
Piatt V. Commonwealth, 256 Mass. 539, 

543 343, 599 

Postal Telegraph Co. v. Adams, 155 

U.S. 688 38 

Postal Telegraph Cable Co. v. Chicopee, 
207 Mass. 341, 343 . . . 2, 4 

V. Richmond, 249 U. S. 252, 3, 226 

Pratt V. American Bell Telephone Co., 

141 Mass. 225 . . . 86, 87 

Quinn v. Middlesex Electric Light Co., 

140 Mass. 109 . . . .2 
Railway Co. v. Allerton, 18 Wall. 233, 
235 63 



PAGE 

Ransom v. Boston, 192 Mass. 299, 

304 48, 138 

Reed v. Tarbell, 4 Met. 93, 101 . . 224 

Renick v. Boyd, 99 Pa. St. 555 . . 224 

Reynolds v. Supreme Council Royal 

Arcanum, 192 Mass. 150 . . 375 

Richardson v. Sibley, 11 Allen, 65 . 1, 2 
Rich V. Mayor of Maiden, 252 Mass. 

213 308 

Richmond v. Southern Bell Tel. Co., 

174 U. S. 761, 770-773 . . . 4, 5 

Roach V. Sturdy, 250 Mass. 357 . . 485 

Robertson v. Commissioner of Civil 

Service, Mass. Ad. Sh. (1927), p. 963 389 

V. Coughlin, 196 Mass. 539 . . 646 

Royal Arcanum v. Green, 237 U. S. 531 375 
Royster Guano Co. v. Virginia, 253 

U. S. 412, 415 . . . 39, 94 

Russ. V. Great Southern Life Ins. Co., 

6 Fed. (2d) 940 . . . . 462 

Salisbury Land & Improvement Co. v. 

Commonwealth, 215 Mass. 371, 374 

16, 27 
Saltonstall v. New York Central R. R. 

Co., 237 Mass. 391, 394. 395 . . 104 

Same v. Same, 11 Fed. (2d) 476 . . 455 

Sands v. Lyon, 18 Conn. 18 . . 108 

Schwuchow V. Chicago, 68 111. 444 . 221 
Scituate v. Weymouth, 108 Mass. 126, 

131 566 

Selectmen of Brookline, petitioners, 

236 Mass. 260 . . . .566 
V. Clinton v. Worcester, etc., St. 

Ry. Co., 199 Mass. 279, 285 . . 221 

Shea V. Manhattan Life Ins. Co., 224 

Mass. 112 107 

Sheibley v. Dixon County, 61 Neb. 409 270 
Shreveport Case, 234 U. S. 342 . .5 

Simonds v. Simonds, 103 Mass. 572 . 48 
Small V. Franklin Mining Co., 99 

Mass. 277 107 

Southern Ry. Co., v. Greene, 216 U. S. 

400, 417 ... . 48, 94 

V. Kentucky, 274, U. S. 76 . . 447 

Spaulding v. Nourse, 143 Mass. 490 . 102 
Spector V. Milton, 250 Mass. 63, 71 . 499 
Springfield v. Springfield St. Ry. Co., 

182 Mass. 41, 47, 48 . . 1, 220 

State V. Brewster, 87 N. J. L. 75, 89 

N. J. L. 658 . . . 479 

V. DUlon, 1 Head (Tenn.), 389 450 

V. Dvorack, 140 Iowa, 266 . . 423 



CASES CITED. 



XXI 



PAGE 

270 

55 

479 

422 



Col. 



15() 



State V. Gideon 158 Mo. 327 . 

V. Johnson, 170 N. C. 685 . 

V. Scott, 89 N. J. L. 726 . 

V. Yocum. 182 Ind. 481 

Stevens v. Sedgwick County, 5 

App. 115 . 
V. Stanton Construction Co., 153 

App. Div. 82 . . . 57, 223 

St. Louis r. Western Union Tel. Co., 148 

U. S. 92. 104, 105 . . . .3 

Stockdale v. Insurance Companies, 20 

Wall. 323, 331, 332 . . 30, 95 

Storer v. Downey, 215 Mass. 273 . 626 

Stratton v. Mount Hermon Boys' 

School, 216 Mass. 83 . 
SulHvan v. Borden, 163 Mass. 470 
Sweet V. Rechel, 159 U. S. 380 . 
Taft V. Adams, 3 Gray. 126, 130 
V. Bridgeton Worsted Co., 237 

Mass. 385, 388-389; S. C. 246 Mass. 

444 

Tappan v. Boston Water Power Co., 

157 Mass. 24 ... . 

Taylor v. Wilson, 11 Met. 44. 51 . 
Tinker v. Russell, 14 Pick. 279 . 
Torrey v. Baker, 1 Allen, 120 . 
Town V. Trow, 24 Pick. 168 
Treasurer and Receiver General v. 

Revere Sugar Refinery, 247 Mass. 

483, 489 ... . 220, 221 

Tremont & Suffolk Mills v. Lowell, 165 

Mass. 265 441 

Truax v. Corrigan, 257 U. S. 312, 332- 

339 48, 94 

V. Raich, 239 U. S. 33 . 48. 94 

Turners Falls Fire District v. Millers 

Falls Water Supply District. 189 

Mass. 265 566 

Tyler v. Treasurer and Receiver Gen- 
eral. 226 Mass. 306, 310 . . 222. 539 
Union Institution for Savings v. Bos- 
ton. 224 Mass. 286 ... 220 
Union St. Ry. Co. v. New Bedford. 253 

Mass. 314. 317 . . . .448 

Union Tank Line Co. v. Wright, 249 

U. S. 275 38 

United States v. Bixby, 9 Fed. 78 . 450 
V. City of New Brunswick. 1 Fed. 

(2d) 741 

V. Heinszen & Co.. 206 U. S. 370 . 

ex. rel. Patton v. Tod. 297 Fed. 

385 

V. Wilson, 7 Pet. 150, 160 . 



485 

500 

27 

92 



485 

285 
107 
183 
204 
108 



455 
95 



621 

7 



PAGE 

Van Heusen v. Commissioner of Cor- 
porations and Taxation, 257 Mass. 

488 319 

W. & J. Sloane v. Commonwealth. 253 

Mass. 529 30 

Wallace v. Hines. 253 U. S. 66 . . 38 

Ware v. Fitchburg, 200 Mass. 61 34. 569 
Waters v. Bonvouloir. 172 Mass. 286 . 156 
Weddigen v. Boston Elastic Fibre Co.. 

100 Mass. 422 . . . 107 

Weld V. Gas & Electric Light Commis- 
sioners, 197 Mass. 556 ... 2 
Wellington v. Cambridge, 214 Mass. 35 223 
Western Union Tel. Co. v. Kansas, 216 

U. S. 1. 33-37 .... 4 

V. Mass. 125 U. S. 530, 548, 554 3. 38 

V. Penn. R. R. Co., 195 U. S. 540 3 

V. Richmond. 224 U. S. 160. 169. 

170 3, 222 

Weston V. Sampson. 8 Cush. 347 . 555 
Wheelwright v. Tax Commissioner. 235 

Mass. 584 93 

Whittaker v. Salem, 216 Mass. 483. 484, 

485 155 

Wiggin. Admr., v. Swett.B Met. 194.202 123 
WilHams College v. Williamstown, 219 

Mass. 46. 48 
Wilson V. Head. 184 Mass. 515 . 
Winnisimmet Co. v. Grueby. 209 

Mass. 1 .... . 

Winslow V. Gifford, 6 Cush. 327 . 
Wisconsin v. Pelican Insurance Co., 

127 U. S. 265, 297 . 
Wisconsin R. R. Comm. v. Chicago. 

Burlington & Quincy R. R. Co., 

257 U. S. 563 
Witherington v. Nickerson, 256 Mass. 

351. 357 

Wood V. Farmer, 200 Mass. 209, 215 
Woods V. Sheldon, 69 N. W. 602 . 
Worcester County National Bank, 

petitioner, 263 Mass. 444 . 533. 534 
Worden v. New Bedford, 131 Mass. 23 27 
Wright V. Oakley. 5 Met. 400 . . 428 

V. Walcott. 238 Mass. 432. 434 16. 27 

Wyman v. County Commissioners. 157 

Mass. 55. 57 . . . . 223 

Wynne v. United States, 217 U. S. 234 475 
Wyoming Agricultural College v. Irvine, 

206 U. S. 278, 283 . . 192. 193 

Yick Wo. V. Hopkins, 118 U. S. 356. 369- 

374 48, 94 

Zinn V. Germantown. etc., Ins. Co., 132 

Wis. 86 412 



496 
93 



27 
345 



68 



534 

86 
213 



OPINIONS 

OF 

JAY R. BENTON, ATTORNEY-GENERAL 



Constitutional Law — Authority of a Telephone 
Company to transfer its Locations — Right of a 
Foreign Telephone or Telegraph Company to do 
Business in Massachusetts. 

In the absence of special enactment, one telephone or telegraph company may 
assign to another the right to use its locations. 

The right of a foreign telegraph company to operate lines within the State is estab- 
lished by act of Congress, but the State may impose reasonable restrictions 
and regulations. 

The State may not deny to a foreign telephone company desiring to construct 
lines in Massachusetts the same right to use public ways which is given to 
domestic companies, provided the use is for interstate communication. 

You ask my opinion as to the authority of a Massachusetts ^"^^/^^^ 
telephone company to permit a foreign telephone company j^nua^ry 7. 
to use its locations, and what authority a foreign telephone 
company has to construct and operate equipment on the 
locations of a domestic company. 

The right to construct lines for the transmission of elec- 
tricity, including telephone and telegraph lines, is given to 
companies incorporated for the purpose by G. L., c. 166, 
§ 21, originally enacted in St. 1849, c. 93. Under this statute 
(§ § 22 and 25) locations in public ways may be granted by 
the cities and towns through which the lines are to pass. 

A telephone company is a public service corporation, 
dealing in a public utility. Such a corporation cannot, 
without legislative authority, part with its property, fran- 
chises and privileges, including locations in pubhc streets, 
so as to disable itself from performing its public duties. 
Commonwealth v. Smith, 10 Allen, 448, 455, 456; Richardson 



OPINIONS OF THE ATTORNEY-GENERAL. 

V. Sibley, 11 Allen, 65; Pierce v. Drew, 136 Mass. 75; French 
V. Jones, 191 Mass. 522; Weld v. Gas & Electric Light Com- 
missioners, 197 Mass. 556; Attorney-General v. Haverhill 
Gas Light Co., 215 Mass. 394. Locations given to public 
service corporations in public streets by cities and towns 
are not contracts or franchises, but are in the nature of 
permits or licenses which are subject to revocation. Spring- 
field V. Springfield St. Ry .Co., 182 Mass. 41, 47, 48; Metro- 
politan Home Tel. Co. v. Emerson, 202 Mass. 402. Where a 
license is required by statute the question whether it is trans- 
ferable depends upon the legislative intent. Quinn v. 
Middlesex Electric Light Co., 140 Mass. 109; Commonwealth 
v. Lavery, 188 Mass. 13. 

Your questions involve a consideration, first, of the right 
of a foreign corporation to engage in the transmission of 
intelhgence by telephone in Massachusetts, and, secondly, 
of the transferability of rights in locations. As to the latter 
question, there is nothing in the general statutes of the 
Commonwealth indicating an intention to make locations 
granted under G. L., c. 166, § § 22 and 25, personal to the 
immediate grantee; and in Postal Telegraph Cable Co. v. 
Chicopee, 207 Mass. 341, 343, it was said that such rights 
passed by assignment to the plaintiff from its predecessors. 
In the absence of some special enactment, therefore, limiting 
the right of transfer with respect to some particular com- 
pany, the granting by one company to another of permission 
to use its locations, so long as it does not thereby disable 
itself from doing business, and the use of such locations by 
the other company, otherwise qualified to do business in 
the Commonwealth, would seem to be without legal objec- 
tion. 

But the question of the right of a foreign telephone com- 
pany to exercise the franchise of carrying on its business in 
Massachusetts is more doubtful. It has been held that the 
authority given by G. L., c. 166, § 21, is limited to domestic 
companies only. Commonwealth v. Boston, 97 Mass. 555. 
But in Postal Telegraph Cable Co. v. Chicopee, supra, the 



JAY R. BENTON, ATTORNEY-GENERAL. 

court expressed the view that under the Federal law, and 
under the Massachusetts statutes as well, a foreign tele- 
graph company, the plaintiff's predecessor in title, had a 
right to construct and maintain a telegraph line in this State 
which was part of an interstate system. This question, 
therefore, cannot be answered with certainty in the light of 
the decisions of our court alone. It involves a considera- 
tion of Federal law applicable to the subject. 

The right of telegraph companies to operate lines within 
the State, regardless of any franchise from the State, seems 
to be established by the Act of Congress approved July 24, 
1866 (14 Stat. 221, c. 230, Rev. Stat. § 5263, et seq.), and a 
series of decisions interpreting the act. That act was an 
exercise of the power of Congress over interstate commerce 
and over military and post roads. Its effect was to deny 
to a State the authority to say that a telegraph company 
may not operate lines constructed over postal routes within 
its borders; limiting the right of the State to the imposing of 
reasonable restrictions and regulations. Pensacola Tel. 
Co. V. Western Union Tel. Co., 96 U. S. 1; Western Union 
Tel. Co. V. Massachusetts, 125 U. S. 530, 548, 554; St. Louis 
V. Western Union Tel. Co., 148 U. S. 92, 104, 105; Western 
Union Tel. Co. v. Penn. R. R. Co., 195 U. S. 540; Western 
Union Tel. Co. v. Richmond, 224 U. S. 160, 169, 170; Essex 
v. New England Tel. Co., 239 U. S. 313; Postal Telegraph- 
Cable Co. V. Richmond, 249 U. S. 252, 259. 

In Western Union Tel. Co. v. Richmond, the court said : — 

The act of Congress of course conveyed no title and did not attempt 
to found one by delegating the power to take by eminent domain. . . . 
It made the erection of telegraph lines free to all submitting to its 
conditions, as against an attempt by a State to exclude them because 
they were foreign corporations, or because of its wish to erect a monopoly 
of its own. ... It has been held to prevent a State from stopping the 
operation of lines within the act by injunction for failure to pay taxes. 
. . . But except in this negative sense the statute is only permissive, 
not a source of positive rights. The inability of the State to prohibit 
the appellant from getting a foothold within its territory, both because 
of the statute and of its carrying on of commerce among the States, 



OPINIONS OF THE ATTORNEY-GENERAL. 

gives the appellant no right to use the soil of the streets, even though 
postroads, as against private owners or as against the city or State 
where it owns the land. 



In Essex v. New England Tel. Co., supra, it was said that 
"a, city may not arbitrarily exclude the wires and poles of a 
telegraph company from its streets, but may impose rea- 
sonable restrictions and regulations"; and in Postal Tele- 
graph-Cable Co. V. Richmond, supra, it was assumed that 
"the occupation of its streets by a telegraph company 
engaged in interstate commerce, which has accepted the act 
of Congress of 1866, cannot be denied by a city." In the 
Essex case the town authorities had permitted the company, 
a Massachusetts corporation, to locate and construct its 
lines along the highways of the town, and for many years 
had acquiesced in their maintenance and operation. Conse- 
quently, the town was said to be estopped from asserting 
that locations had not been formally granted, and the com- 
pany was held, under the circumstances, to have acquired 
the right to maintain those lines under the Federal law. 
Postal Telegraph-Cable Co. v. Chicopee, 207 Mass. 341, 343, 
referred to above, was cited with approval. 

Telephone companies, however, are not within the pur- 
view of the Federal act. Richmond v. Southern Bell Tel. 
Co., 174 U. S. 761, 773-777. But even though Congress 
has not acted, a State is not permitted to interfere directly 
or by discrimination in the domain of power confided to the 
Federal government by the Constitution ; and so it may not 
impose a direct burden on interstate commerce or discrimi- 
nate against foreign corporations engaged therein. Crutcher 
V. Kentucky, 141 U. S. 47; Western Union Tel. Co. v. Kansas, 
216 U. S. 1, 33-37; Dahnke-Walker Co. v. Bondurant, 257 
U. S. 282, 290, 291; Pennsylvania v. West Virginia, 262 
U. S. 553, 596, 597. Accordingly, the United States Su- 
preme Court has held that where a State grants the use of its 
highways to domestic corporations engaged in intrastate 
transportation of a commodity (natural gas), the denying of 



JAY R. BENTON, ATTORNEY-GENERAL. 

that right to foreign corporations engaged in interstate 
commerce in the same commodity is a discrimination against 
interstate commerce which the court will restrain. Oklahoma 
V. Kansas Nat. Gas Co., 221 U. S. 229, 262. See also Buck v. 
Kuykendall, 267 U. S. 307. 

Following the reasoning of the Oklahoma case, in my 
opinion the Massachusetts statute must be construed as 
giving to foreign telephone companies desiring to construct 
lines in Massachusetts for the purpose of interstate com- 
munication the same right to use the public ways for that 
purpose which is accorded to domestic companies. They 
can have, however, no greater right, and are equally bound 
to make application for locations to the proper authorities. 
Richmond v. Southern Bell Tel. Co., 174 U. S. 761, 770-773. 
Moreover, this right is limited to the use of such ways in 
interstate commerce. The power of a State to exclude a 
foreign corporation from doing a local business within its 
borders, separate from its interstate business, where Congress 
has not acted, is undoubted. Paul v. Virginia, 8 Wall. 168; 
Pembina Mining Co. v. Pennsylvania, 125 U. S. 181 ; Pennsyl- 
vania R. R. Co. V. Knight, 192 U. S. 21; The Minnesota 
Rate Cases, 230 U. S. 352; Baltic Mining Co. v. Massa- 
chusetts, 231 U. S. 68; The Shreveport Case, 234 U. S. 342; 
Interstate Amusement Co. v. Albert, 239 U. S. 560; Wisconsin 
R. R. Comm. v. Chicago, Burlington & Quincy R. R. Co., 257 
U. S. 563; Attorney -General v. Electric Storage Battery Co., 
188 Mass. 239; Barrows v. Farnum's Stage Lines, Inc., 
254 Mass. 240. In my opinion, this power of the State 
extends over franchises in public ways for use in intrastate 
commerce although they are post roads, in the absence of 
action by Congress. Nor should the fact that such use has 
heretofore been made without objection estop the Common- 
wealth from asserting that power if it chooses so to do. At- 
torney-General V. Methuen, 236 Mass. 564, 578, 579; Attorney- 
General V. Revere Copper Co., 152 Mass. 444; Doyle v. Con- 
tinental Ins. Co., 94 U. S. 535, 540, 541. 



b opinions of the attorney-general. 

Pardons — Commutation of Sentence — Report sub- 
mitted TO the Legislature by the Governor. 

A pardon, as generally known, secures the release of the convict with or without 

conditions attached to such release. 
If there are conditions attached, it is the duty of the Governor and Council to order 

the convict remanded for the unexpired term if they find that he has violated 

the conditions. 
A commutation of sentence is an exercise of the pardoning power. 
Under G. L., c. 127, § 152, the Governor should report to the Legislature every 

exercise of the pardoning power. 

cZvernoT Yo\i Fequest my opinion whether you should include in the 

janliSy?. list of pardons submitted by you to the General Court the 

case of a prisoner whose sentence was commuted by you, 

with the advice and consent of the Council. 
G. L., c. 127, § 152, provides, in part: — 

The governor shall annually transmit to the general court a list 
of the pardons granted by him with the advice and consent of the 
council during the preceding year. 

Mass. Const., pt. 2nd, c. II, § I, art. VIII, provides, in 
part : — 

The power of pardoning offences, except such as persons may be 
convicted of before the senate by an impeachment of the house, shall 
be in the governor, by and with the advice of council; . . . 

In Kennedy's Case, 135 Mass. 48, 51, the court said: — 

The power of pardoning offences, as conferred on the executive 
authority by the Constitution of the Commonwealth, is exceedingly 
comprehensive, extending to all offences except those of conviction by 
the Senate upon impeachment. It is only limited in its exercise by 
the provision that pardons shall not be granted before conviction. Per- 
kins V. Stevens, 24 Pick. 277. This power includes that of mitigating 
the sentence, as by diminishing its duration where imprisonment has 
been ordered, or by commutation, so that a milder punishment is in- 
flicted. It includes also the right to grant conditional pardons, either 
to take effect upon the performance of some precedent condition, or 
to become void by a failure to comply with some subsequent condition. 

In Opinion of the Justices, 190 Mass. 616, 621, the justices 
said : — 



JAY R. BENTON, ATTORNEY-GENERAL. 

The commutation of a sentence is a pardon upon condition that 
the convict voluntarily submits to a lighter punishment. 

In Opinion of the Justices, 210 Mass. 609, 610, 611, the 
justices said: — 

The words "the power of pardoning offences" are comprehensive. 
They include not only that absolute release from the penalty which 
is referred to commonly as a pardon, but those lesser exercises of clem- 
ency which are described as conditional pardon, commutation of sentence 
and respite of sentence. . . . 

... A commutation of sentence, which is the substitution of a 
lighter for a more severe punishment, is an exercise of the pardoning 
power and must be in accordance with the Constitution. 

See also United States v. Wilson, 7 Pet. 150, 160. 

It is thus clear that a commutation of sentence is an 
exercise of the pardoning power and is a pardon upon condi- 
tion. It is not, however, commonly referred to as a pardon. 
The effect of the act which is conmionly known as a pardon 
is to secure the release of the convict, with or without con- 
ditions attached to such release. If there are conditions 
imposed and they are violated, the duty is placed upon the 
Governor and Council by G. L., c. 127, § 156, to ascertain 
the facts and to order the convict to be remanded and con- 
fined for the unexpired term of the sentence, if it appears 
that he has violated the conditions of his pardon. A com- 
mutation of sentence does not necessarily involve the release 
of the prisoner. It may merely make the prisoner eligible 
for parole, and his release is left to the discretion of the 
parole authority, which is not the Governor and Council, 
acting in accordance with the statutes governing the situa- 
tion. If the prisoner is paroled and he violates the terms of 
the parole, the parole authority is empowered to ascertain 
the facts and to order the convict to be confined. See G. L., 
c. 127, §§ 128-150. 

There is thus a sharp difference in effect between a com- 
mutation of sentence and what is commonly known as a 
pardon. Does the word "pardons" as used in G. L., c. 127, 



OPINIONS OF THE ATTORNEY-GENERAL. 

§ 152, include commutations of sentences? The section 
appears in the General Laws under the heading "Pardons." 
But sections 154 and 157 refer to a pardon or commutation 
of sentence. Taking everything into consideration, I am 
constrained to the view that the General Court by the 
enactment of section 152 intended to require the Governor 
to report to it every exercise of the pardoning power, and 
that the answer to your question should be in the affirmative. 
I suggest for your consideration, so that the Legislature 
might be fully advised as to the manner in which the pardon- 
ing power was exercised by you, the advisability of heading 
your report with the caption, "Exercise of the Pardoning 
Power," and of so listing the cases thereunder as to show the 
number of absolute pardons, pardons with conditions as 
commonly understood, commutations of sentences and 
respites of sentences. 



Accrediting of State Treasury Receipts — General 
Revenue and Special Funds. 

Contributions and assessments for repairing, improving and constructing ways, 
paid by cities and towns in 1925 to the State Treasurer after the passage of St. 
1925, c. 288, providing for crediting contributions to Highway Fund, are to 
be accredited to general revenue, as having been estimated in the anticipated 
revenue, subject to appropriation in the budget and supplemental budget of 
1925 (St. 1925. CO. 211 and 347). 



T9 the Com- 
mission on 
Administra- 
tion and Fi- 
nance. 

1926 
January 12. 



You request my opinion as to whether or not the con- 
tributions and assessments paid into the State treasury by 
cities, towns and counties during the fiscal year 1925, for 
maintaining, repairing, improving and constructing ways, 
should have been credited to the general fund in the treasury 
of the Commonwealth or to the Highway Fund created by 
St. 1925, c. 288. 

Prior to the passage of St. 1925, c. 288, referred to above, 
G. L., c. 90, § 34, as amended, provided that the fees and 
fines received by the Registrar of Motor Vehicles should be 



JAY E. BENTON, ATTORNEY-GENERAL. 

paid into the Treasury of the Commonwealth to be expended, 
if appropriated, as therein directed. 

St. 1925, c. 288, § 1, struck out said section 34, and inserted 
in place thereof the following : — 

The fees and fines received under the preceding sections, together 
with all other fees received by the registrar or any other person under 
the laws of the commonwealth relating to the use and operation of 
motor vehicles, shall be paid by the registrar or by the person collecting 
the same into the treasury of the commonwealth, and said fees and 
fines, together with all contributions and assessments paid into the state 
treasury by cities, towns or counties for maintaining, repairing, improv- 
ing and constructing ways, whether before or after the work is completed, 
and all refunds and rebates made on account of expenditures on ways 
by the division, shall be credited on the books of the commonwealth 
to a fund to be known as the Highway Fund. Said Highway Fund, 
subject to appropriation, shall be used as follows: 



The remainder of said section 1 specified the purposes for 
which the fund was to be used. The act was approved on 
April 29, 1925, and took effect ninety days thereafter. 

I am informed that the contributions and assessments 
for the year 1925 from cities, towns and counties for main- 
taining, repairing, improving and constructing ways had not 
been received when this act took effect, but it is represented 
to me that the estimated amount of such contributions and 
assessments to be received during the entire fiscal year of 
1925 was used as a part of the bases for the budget and the 
supplemental budget of 1925, and was appropriated by the 
general appropriation act (St. 1925, c. 211) and the sup- 
plemental appropriation act (St. 1925, c. 347), by which all 
the estimated revenue, including these contributions and 
assessments from cities, towns and counties for the year, 
was totally exhausted. The supplemental appropriation 
act, approved May 1, 1925, contains items of specific ap- 
propriation from the Highway Fund (items 216, 600a, 
641a and 303a, totalling $153,503.61). There was at that 
time a balance of receipts from motor vehicle fees and fines 



10 



OPINIONS OF THE ATTORNEY-GENERAL. 



on hand which was more than sufficient to meet these specific 
appropriations. 

The answer to your question requires the Attorney-General 
to ascertain the intention of the Legislature, and that inten- 
tion, when found, must be given effect. "The manifest 
intention of the Legislature, as gathered from its language, 
considered in connection with the existing situation and the 
object aimed at, is to be carried out." Moore v. Stoddard, 
206 Mass. 395, 399; VI Op. Atty. Gen.'s, 209. 

In view of the action of the Legislature in appropriating 
anticipated revenue from the contributions and assessments 
referred to, without reference to the Highway Fund, it is 
my judgment that the Legislature could not have intended 
that those contributions and assessments should be placed 
in the Highway Fund, where they would be unavailable 
to meet the requirements of the two appropriation acts. 
I am of the opinion, however, that it was the Legislature's 
intention that the balance of the receipts from motor vehicle 
fees and fines then on hand, that is, the day that chapter 288 
took effect, and fees and fines subsequently received should 
be placed in the Highway Fund, these fees and fines being 
more than sufficient to meet the appropriations made 
specifically therefrom, to wit: items 216, 600a, 641a and 303a 
of the supplemental appropriation act. 



To the Com- 
missioner of 
Administra- 
tion and Fi- 
nance. 

1926 
January 21. 



Registry of Probate — Record — Photostatic 
Copies. 

The permanent records of the Probate Courts kept by the registers as required 
by G. L., c. 215, § 36, may lawfully take the form of bound volumes of photo- 
static copies, provided that it is practicable to use therefor paper of the dort 
required by G. L., c. 66, § 3, and the requisite durability can be achieved. 

You have requested my opinion whether the use of photo- 
static copies of decrees, orders, wills and like matters would 
satisfy the requirements of existing laws with respect to the 
permanent records which are to be kept by the various 
registries of probate. 



JAY R. BENTON, ATTORNEY-GENERAL. 11 

The provisions of G. L., c. 215, § 36, are as follows: — 

Decrees and orders of probate courts shall be in writing, and the 
registers shall record in books kept therefor all such decrees and orders, 
all wills proved in the court, with the probate thereof, all letters tes- 
tamentary and of administration, all warrants, returns, reports, accounts 
and bonds, and all other acts and proceedings required to be recorded 
by the rules of the court or by order of the judge. 

These words are far from prescribing in detail and with 
exactness the method of recording. The word "record" 
looks more to the end to be achieved, namely, the preserving 
in durable and intelligible form of the acts and proceedings 
in question. There is no satisfactory ground for assuming 
that R. S., c. 83, § 7, the earliest of the predecessors of 
G. L., c. 215, § 36, was intended to restrict the methods of 
recording to those made available by the progress of inven- 
tion to the year 1836. I am of the opinion that a series of 
photostatic copies, properly arranged and bound into a 
permanent volume, constitutes a compliance with the fair 
meaning of the duty imposed upon the registers to "record 
in books kept therefor" the various matters which by G. L., 
c. 215, § 36, are required to be recorded. 

The provisions of G. L., c. 4, § 7, cl. 26th, are as follows: — 

"Public records" shall mean any written or printed book or paper, 
any map or plan of the commonwealth, or of any county, city or town 
which is the property thereof, and in or on which any entry has been 
made or is required to be made by law, or which any officer or employee 
of the commonwealth or of a county, city or town has received or is 
required to receive for filing, and any book, paper, record or copy 
mentioned in sections five to eight, inclusive, and sixteen of chapter 
sixty-six. 

There can be no doubt that these permanent records of 
the Probate Courts are intended to be public records, and 
that any construction of G. L., c. 215, § 36, that authorizes 
a method of recording which would withdraw these records 
from the definition given in the section last quoted above 
would be subject to grave doubt. 



12 OPINIONS OF THE ATTORNEY-GENERAL. 

The word "print," in its primary significance, imports 
the use of pressure, the physical striking on to the paper or 
other material of the letters or designs. In that sense a 
photostatic copy is not a written or printed book or paper 
but is a copy made through photographic processes of a 
written or printed book or paper. The word ''print," 
however, has its place in the language of photographers. 
*'To print a positive picture from a negative" is the expres- 
sion which is customarily used, and there is perhaps no other 
word than "print" which has been taken aptly to describe 
the process. With some hesitancy it is my view that a 
photostatic copy would be deemed "printed" within the 
meaning of G. L., c. 4, § 7, cl. 26th, and that the interpreta- 
tion of G. L., c. 215, § 36, is therefore not varied thereby. 

I direct your attention, however, to G. L., c. 66, § 3, which 
is as follows : — 

The word "record" in this chapter shall mean any written or printed 
book, paper, map or plan. All public records other than maps and 
plans shall be entered or recorded on paper made of linen rags and new 
cotton clippings, well sized with animal sizing and well finished, and 
preference shall be given to paper of American manufacture marked 
in water line with the name of the manufacturer. 

This provision, which is intended to secure durability to 
public records, would have to be complied with, whatever 
method of recording be selected. It is not for me, however, 
to pass upon the practical question whether the kind of 
paper which this section requires is suitable to be used in 
making photostatic copies or records. 

Assuming that there is, as I have said above, a consider- 
able degree of discretion which may be exercised in the choice 
of the method of recording, and that that discretion may be 
exercised in favor of the use of photostatic copies, I do not 
understand you to ask, and I do not answer the question, 
to what person or body of persons that discretion is by law 
entrusted. The inquiry which is answered above appears 
to bear such a reasonable relation to the duties of your office 
as to permit the rendering of an opinion with respect thereto. 



February 1. 



jay r. benton, attorney-general. 13 

Constitutional Law — Boston Elevated Railway Com- 
pany — Sale of Elevated Structures. 

A bill authorizing the trustees of the Boston Elevated Railway Company, with the 
consent of the directors, to execute contracts for the purchase by governmental 
agencies of the elevated structures of the company and for the lease to the 
company of the property so acquired, not to become effective until accepted 
by vote of a majority of the company's stockholders, would be constitutional, 
if enacted. 

You ask my opinion as to the constitutionality of a bill J°R^pr^senta- 
entitled "An Act relative to the purchase by the city of ^'''^1926 
Boston and conveyance by the Boston Elevated Railway 
Company of elevated structures within the limits of said 
city." The bill contains the following provisions, with 
many details which it is not necessary now to state : — 

First: The transit department of the city of Boston is 
authorized to execute with the company, with the consent 
of the directors, a contract for the purchase by the city of 
the elevated structures within the city, at a price to be de- 
termined, to be paid from the proceeds of an issue of bonds 
of the city, and another contract for the lease of the property 
so acquired, for a term ending with the termination of the 
present leases of tunnels and subways in the city, at a rental 
as therein provided. 

Second: The Department of PubUc Utilities is similarly 
authorized to execute with the company, with the consent 
of the directors, a contract for the purchase by the Com- 
monwealth of the elevated structures outside the city, at a 
price to be determined, to be paid from the proceeds of an 
issue of bonds of the Commonwealth, and another contract 
for the lease of the property so acquired, for a term ending 
with the termination of the present lease of the Cambridge 
subway, at a rental as therein provided; and it is provided 
that any excess or deficiency of revenues as compared with 
interest and sinking fund requirements shall be apportioned 
among the cities and towns constituting a district to be 
created. 

Third: The company is required to use the amounts paid 



14 OPINIONS OF THE ATTORNEY-GENERAL. 

to it by the city and by the Commonwealth, for the property 
conveyed, to restore and maintain the reserve fund created 
by Spec. St. 1918, c. 159, to reimburse the Commonwealth 
for amounts paid to the company under that act for distribu- 
tion among the cities and towns, and to use the balance for 
capital purposes. 

Fourth: Upon the execution of the contracts with the city 
referred to above the transit department is required to extend 
the Washington Street tunnel to Sullivan Square, and is 
authorized to execute with the company, with the consent 
of the directors, a contract for the lease of the extension, 
for a term ending with the termination of the present lease 
of the tunnel, at a rental as therein provided ; and there are 
suitable provisions for acquiring land or interests therein by 
eminent domain or otherwise, and for paying the cost of the 
extension from an issue of bonds of the city. 

Fifth: Upon the completion of the extension, the inter- 
vening elevated structure is to be removed and the company 
to be relieved of all rental obligations with respect thereto. 

Sixth: It is provided that the act is to take effect upon its 
acceptance by the city of Boston and other cities in the 
district and by a majority vote of the stockholders of the 
company. 

Most of the provisions of this bill are similar to provisions 
to be found in Gen. St. 1919, c. 369, providing for the pur- 
chase by the Commonwealth of the Cambridge subway, 
or in St. 1923, c. 480, providing for the extension of the 
Dorchester tunnel. So far as these provisions fall within 
the scope of Spec. St. 1918, c. 159, they are consistent with 
its terms. The proposed act does not become effective 
until accepted by a vote of a majority of its stockholders. 
Under those conditions the trustees of the company, with 
the consent of the directors, may clearly, in my opinion, 
contract to sell the elevated structures of the company in 
accordance with the provisions of the bill without violating 
the constitutional rights of any dissenting stockholders. 
See Boston v. Treasurer & Receiver General, 237 Mass. 403; 



JAY R. BENTON, ATTORNEY-GENERAL. 15 

Durfee v. Old Colony & Fall River R. R. Co., 5 Allen, 230; 
Attorney-General v. Boston & Albany R. R. Co., 233 Mass. 
460; V Op. Atty. Gen. 320; opinion to Joint Special Com- 
mittee on Boston Elevated and Metropolitan Transporta- 
tion District, September 28, 1925. Without passing upon 
matters of detail, I observe no constitutional defect in the 
main provisions of the proposed measure as outlined above. 



Constitutional Law — Eminent Domain — Power of 
THE Legislature to grant Authority to lease 
Property. 

An act which authorizes a town to acquire by purchase or to take by eminent 
domain certain property, and to maintain and operate the same as a wharf 
or "to lease said property, in whole or in part for any purpose," is uncon- 
stitutional. 

You have transmitted to me a copy of the engrossed J^.t^rnor. 
bill of House 1058, entitled ''An Act authorizing the town of Febmary4. 
Fairhaven to acquire the Union Wharf property in said 
town." 

The substance of this bill is that the town of Fairhaven 
is authorized to purchase, for an amount not exceeding 
$25,000, or, in the alternative, to take by eminent domain, 
a wharf property in Fairhaven knownj'as Union Wharf; 
and is further authorized to maintain and operate the same 
as a wharf or "to lease said property, in whole or in part, for 
any purpose.'^ 

After an examination of the authorities I am constrained 
to advise you that, in my judgment, this bill is unconstitu- 
tional, for the following reasons. 

It is true that a statute which authorizes a taking may 
also provide that the municipal authorities may sell the 
lands taken at a later date, whenever they determine that 
such property is no longer needed for pubUc use. But such 
a power, which is latent in every taking, is very different 
from a power to take land with a contemporaneous knowl- 



16 OPINIONS OF THE ATTORNEY-GENERAL. 

edge and purpose that a definite and separable part thereof 
is not then necessary for the pubhc use. 

The words of the statute which authorize the town authori- 
ties of Fairhaven, after the wharf has been taken, to lease 
said property, in whole or in part, for any purpose, are not 
restricted as to time. These words form an integral part of 
the act, and are to operate contemporaneously with all its 
other provisions. There is nothing to require a determina- 
tion that by reason of changed conditions the wharf, deemed 
necessary at the time of the taking, is no longer needed. 
The invalidity of such a statutory enactment is conclusively 
shown by the decision in the case of Salisbury Land & Im- 
provement Co. V. Commonwealth, 215 Mass. 371, 374, et seq. 

It was said by the Supreme Court of the United States, 
speaking through Mr. Justice Harlan, in Madisonville Trac- 
tion Co. V. St. Bernard Mining Co., 196 U. S. 239, 251 : — 

It is fundamental in American jurisprudence that private property 
cannot be taken by the government, national or state, except for pur- 
poses which are of a pubHc character, although such taking be accom- 
panied by compensation to the owner. That principle . . . grows out 
of the essential nature of all free governments. 

In Salisbury Land & Improvement Co. v. Commonwealth, 
supra, the court said, at page 377 : — 

Private property cannot be taken directly or indirectly for a private 
end. It cannot be seized ostensibly for a public use and then diverted 
to a private use. Legislation which is designed or which is so framed 
that it may be utilized to accomplish the ultimate result of placing 
property in the hands of one individual for private enjoyment after 
it has been taken from another individual avowedly for a public pur- 
pose is unconstitutional. It would enable that to be achieved by indi- 
rection which by plain statement would be impossible. These princi- 
ples have been expounded at length in early decisions and recent opinions 
of this court with affluent citation of authorities. 

These fundamental principles, too well settled to be open 
to question, are also stated in the case of Wright v. Walcott, 
238 Mass. 432, 434, as follows: — 



JAY R. BENTON, ATTORNEY-GENERAL. 17 

There are certain fundamental principles too well settled to be open 
to question. Moneys raised by taxation and all public funds can be 
expended only for public purposes. Private property cannot be taken 
by eminent domain or by contract of purchase except for a public use. 
It cannot be so taken or purchased from one person or set of persons 
with the design of handing it over directly or indirectly to another person 
or set of persons for their private advantage. The taking of private 
property except for ends which are of a public nature, even though 
accompanied by full compensation to the owner is contrary to funda- 
mental principles of American jurisprudence and violative of the essential 
character of a free government. Legislation designed or framed to 
accomplish the ultimate 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 use, 
is unconstitutional. Salisbury Land & Improvement Co. v. Common- 
wealth, 215 Mass. 371, and cases there reviewed and collected. Riverbank 
Improvement Co. v. Chadwick, 228 Mass. 242. Opinion of the Justices, 
237 Mass. 597, 608, 609, and cases there collected. Ltjnch v. Forbes, 
161 Mass. 302, 309. Wheelovk v. Lowell, 196 Mass. 220, 225. Madison- 
ville Traction Co. v. St. Bernard Mining Co., 196 U. S. 239, 251. Hair- 
ston V. Danville & Western Railway, 208 U. S. 598, 606. 



Constitutional Law — Power of Legislature over 
Charitable Foundations. 

A statute purporting to authorize an application of funds held upon a charitable 
trust to distinct and foreign purposes is unconstitutional. 

You have asked mv opinion whether a bill for legislation Jp the House 

•^ -^ ^ Committee on 

authorizing the trustees of the Haverhill Congregational ^"'^fgae 
Ministerial Fund to dispose of said fund would, if enacted, February e. 
be constitutional. 

''It is not within the power of the Legislature to terminate 
a charitable trust, to change its administration on grounds 
of expediency, or to seek to control its disposition under the 
doctrine of cy pres. Gary Library v. Bliss, 151 Mass. 364. 
Crawford v. Nies, 224 Mass. 474, 488." {Opinion of the 
Justices, 237 Mass. 613, 617.) 

The trustees of the Haverhill Congregational Ministerial 
Fund are a corporation established by St. 1822, c. 32, for the 



18 



OPINIONS OF THE ATTORNEY-GENERAL. 



purpose of holding in trust donations which might be made 
to the said trustees for the support and maintenance of the 
gospel ministry in the First Parish (Congregational) in the 
town of Haverhill. All funds so given are unequivocally 
devoted to the support of a regular, ordained, gospel minister, 
except that the surplus income over and above the sum of 
$600 per annum may be applied "for other parochial pur- 
poses, if said parish, at a legal meeting holden for that pur- 
pose, so direct." St. 1822, c. 32, § 10. The purport of the 
present bill is to authorize a thorough deviation from those 
purposes. In my opinion, it will, if enacted, be unconstitu- 
tional. 



City of Boston — Authority of the Street Com- 
missioners TO REGULATE TRAFFIC — BoULEVARD StOP 

Regulation. 

The authority to regulate street traffic in the city of Boston is vested in the street 
commissioners by St. 1908, c. 447. 

The provisions of G. L., c. 89, § 8, and G. L., c. 90, § 18, do not cut down the au- 
thority given by St. 1908, c. 447, except in so far as regulations adopted there- 
under may be inconsistent with those pro\'isions. 

The so-called boulevard stop regulation for the highways of Boston would not 
necessarily be inconsistent with the provisions of G. L., c. 89, § 8, or of G. L., 
c. 90, § 18. 



To the Police 
Commissioner 
of Boston. 

1926 
February 10. 



You ask my opinion whether city officials can establish 
the so-called boulevard stop regulation for the highways 
of Boston without G. L., c. 89, § 8, having first been repealed, 
and without obtaining the approval of the Registrar of 
Motor Vehicles in accordance with G. L., c. 90, § 18. 

The authority to regulate street traffic in the city of Bos- 
ton is vested in the street commissioners by St. 1908, c. 447, 
which authorized the commissioners "to pass, and to amend 
or change from time to time, all regulations for such pur- 
pose, not inconsistent with law, which they shall deem 
needful to prevent the congestion and delay of traffic, and 
for other purposes." Under the authority of this statute a 



JAY R. BENTON, ATTORNEY-GENERAL. 19 

comprehensive code of street traffic regulations and rules 
for driving has been established. 

G. L., c. 89, on the law of the road, provides in section 8 
as follows : — 

Every driver of a motor or other vehicle approaching an intersecting 
way, as defined in section one of chapter ninety, shall grant the right of 
way, at the point of intersection to vehicles approaching from his right, 
provided that such vehicles are arriving at the point of intersection at 
approximately the same instant; except that whenever traffic officers 
are standing at such intersection they shall have the right to regulate 
traffic thereat. 

G. L., c. 90, regulating the use of motor vehicles, provides 
in section 18, in part, as follows. — 

The city council or the selectmen and park commissioners, on ways 
within their control, may make special regulations as to the speed of 
motor vehicles and as to the use of such vehicles upon particular ways, 
and may prohibit the use of such vehicles altogether on certain ways; 
provided, that no such special regulation shall be effective unless it 
shall have been published in one or more newspapers, if there be any, 
published in the town in which the way is situated, otherwise in one 
or more newspapers published in the county in which the town is situated ; 
nor unless notice of the same is posted conspicuously by the town or 
park commissioners making the regulation at points where any way 
affected thereby joins other ways; nor until after the registrar shall have 
certified in writing, after a public hearing, that such regulation is con- 
sistent with the public interests; . . . 

The provisions in these sections do not cut down the 
authority given by St. 1908, c. 447, except in so far as regula- 
tions adopted thereunder may be inconsistent with the 
provisions of these sections. Commonwealth v. Newhall, 
205 Mass. 344; Commonwealth v. Gile, 217 Mass. 18. G. L., 
c. 90, § 18, provides for special regulations as to the speed of 
motor vehicles and as to the use of such vehicles on particu- 
lar ways, including the prohibition of such use. The regula- 
tion about which you inquire seems to be of a different sort, 
and therefore it is my opinion that section 18 would not be 
applicable to it. The proposed regulation, however, must 



20 



OPINIONS OF THE ATTORNEY-GENERAL. 



not be inconsistent with the provisions of G. L., c. 89, § 8. 
Without a draft of the proposed regulation I cannot tell 
whether there is any inconsistency between the two. I 
do not see that such inconsistency is necessarily involved. 



Clerk of the Supreme Judicial Court — Retirement 
Association — Compulsory Membership — Tem- 
porary Employment. 

The clerk of the Supreme Judicial Court for the Commonwealth is a public officer 

and not an employee. 
He cannot be required to become a member of the Retirement Association of the 

Commonwealth. 
There is no provision of law prohibiting the temporary employment of a person 

over seventy years of age. 
A person employed on several successive temporary requisitions is not eligible to 

membership in the Retirement Association. 



To the Board 
of Retirement 

1926 
February 10. 



You request my opinion whether the clerk of the Supreme 
Judicial Court for the Commonwealth is a compulsory 
member of the Retirement Association of the Common- 
wealth. 

G. L., c. 32, § 2, provides that "there shall be a retirement 
association for the employees of the commonwealth." 
Section 1, as amended by St. 1922, c. 341, § 1, defines "em- 
ployees" as "persons permanently and regularly employed 
in the direct service of the commonwealth or in the service 
of the metropolitan district commission, whose sole or 
principal employment is in such service." 

G. L., c. 32, § 2 (3), as amended by St. 1921, c. 439, § 1, 
provides, in part : — 



An official under fifty-five years of age when appointed or reappointed 
by the governor for a fixed term of years, may, if his sole employment is 
in the service of the commonwealth, become a member of the association 
by making written application for membership within one year from the 
date of his original appointment or subsequent reappointment to the 
same office. 



JAY R. BENTON, ATTORNEY-GENERAL. 21 

The clerk of the Supreme Judicial Court for the Common- 
wealth is appointed by the justices of that court for a term of 
five years and may be removed by them. G. L., c. 221, § 1. 
The duties of the clerk are defined in the subsequent sections 
of that act. 

In O'Connell v. Retirement Board of the City of Boston, 254 
Mass. 404, 406, the court held that the clerk of the Munici- 
pal Court of the Roxbury District of the City of Boston "is 
not an employee but is a public officer clothed with official 
functions of a highly important nature." See also V Op. 
Atty. Gen. 547. It seems clear upon the authorities that the 
clerk of the Supreme Judicial Court for the Commonwealth 
is a public officer and not an employee, in the sense in which 
that term is usually used. 

Does the term "employee," as defined in G. L., c. 32, § 1, 
as amended by St. 1922, c. 341, § 1, include public officers? 
The use of the phrase "persons permanently and regularly 
employed" in place of the phrase "permanent and regular 
employees" does not in and of itself warrant the construction 
that public officers are included in the term "employees." 
The distinction between a public office and a public employ- 
ment has been so sharply recognized as to require, in my opin- 
ion, clear and unmistakable language to warrant the inclu- 
sion of public officers in the term "employees." See At- 
torney-General V. Drohan, 169 Mass. 534; Attorney-General 
V. Tillinghast, 203 Mass. 539. Moreover, section 1 of 
chapter 32, as amended, should be read in the light of sec- 
tion 2 (3) of that act, as amended by St. 1921, c. 439, § 1, 
which permits officials appointed by the Governor for a fixed 
term of years to become members of the Retirement Asso- 
ciation, but does not require them to become members. 
Yet such officials are "persons" in the service of the Com- 
monwealth. 

I am therefore of the opinion that the clerk of the Supreme 
Judicial Court for the Commonwealth cannot be required 
to become a member of the Retirement Association of the 
Commonwealth. 



22 OPINIONS OF THE ATTORNEY-GENERAL. 

Your next question is as follows : — 

May a person who is a temporary employee, whose employment was 
authorized for a definite time, be employed after reaching seventy years 
of age — 

(a) In a regular State department; 

(6) By a temporary commission created by an act of the Legislature 
to report upon a special subject? 

G. L., c. 32, § 2 (4), as amended by St. 1925, c. 12, provides 
for the retirement of any "member" who reaches the age of 
seventy. I know of no provision of law which prohibits the 
temporary employment of a person who has passed the age 
of seventy. I therefore answer this question in the affirma- 
tive. 

Your next question reads as follows : — 

May a person who has been employed on a temporary requisition 
for three months' service, followed by another temporary requisition 
for a like length of service, and who has worked for several months under 
several such appointments, be considered an employee for the purposes 
of membership in the Retirement Association? 

Would it be consistent with the law for the Board of Retirement to 
adopt a by-law to include such persons as "permanently and regularly 
employed" after a reasonable length of continuous service? 

G. L., c. 32, applies to persons "permanently and regularly 
employed." Section 3 (3) provides that "the board may 
make by-laws and regulations consistent with law." A 
person who is employed on several successive temporary 
requisitions is not, by the very terms of the requisition, 
"permanently and regularly employed." Such person is 
therefore not eligible to membership in the Retirement 
Association. The board cannot by a regulation or by-law 
treat a temporary employment as a permanent one. I 
therefore answer this question in the negative. 

You further inquire whether there are any classes of offi- 
cials exempt from membership in the Retirement Associa- 
tion in addition to those appointed by the Governor and 
Council and those elected by popular vote. Your question 



JAY R. BENTON, ATTORNEY-GENERAL. 23 

does not refer to any specific officials or any specific officers. 
The Attorney-General will not undertake to determine in 
advance of any inquiry directed toward specific officers 
all possible problems which may arise. I therefore respect- 
fully ask to be excused from answering that question. 



Department of Public Works — Regulation of Bill- 
boards — Signs advertising Persons occupying 
OR Business done on the Premises. 

Under G. L., c. 93, § 30, as amended by St. 1924, c. 334, advertising devices other- 
wise lawful, indicating the person occupying the premises or the business done 
thereon, need not conform to the regulations of the Department of Public 
Works. 

What signs advertise the business transacted on the premises is a question of fact, 
and the rule is, in general, broad enough to allow devices which indicate the 
manufacturer of goods sold on the premises. 

You have asked my opinion upon certain questions re- m?ssione?of' 
specting the interpretation and effect of G. L., c. 93, § 30, P"bi|works. 
relating to the regulation of billboards and other advertis- ^''^l^^'^y ^^• 
ing devices, as amended by St. 1924, c. 334. The provisions 
of that section are as follows : — 

No person, firm, association or corporation shall post, erect, display 
or maintain on any public way or on private property within public 
view from any highway, public park or reservation any billboard or 
other advertising device, whether erected before August twenty-fifth, 
nineteen hundred and twenty, or not, which advertises or calls atten- 
tion to any business, article, substance or any other thing, unless such 
billboard or device conforms to the rules and regulations and ordinances 
or by-laws established under the preceding section; provided, that this 
section shall not apply to signs or other devices erected and maintained 
in conformity with law and which advertise or indicate either the per- 
son occupying the premises in question or the business transacted thereon, 
or advertise the property itself or any part thereof as for sale or to let 
and which contain no other advertising matter. 

1. You ask whether the words ''erected and maintained 
in conformity with law," as found in G. L., c. 93, § 30, 
amended by St. 1924, c. 334, include within their signifi- 
cance conformity with the rules and regulations made by 



24 OPINIONS OF THE ATTORNEY-GENERAL. 

the Division of Highways under the authority of G. L., c. 
93, § 29, as amended by St. 1924, c. 327. I think that they 
do not. Any other conclusion than this would take away 
from this portion of G. L., c. 93, § 30, all force and effect 
whatever. 

2. You also ask whether the words "or the business trans- 
acted thereon," found in said section 30, permit the erec- 
tion of advertising devices which advertise the manufacturer 
of articles or products sold on the premises. What is the 
business transacted upon given premises, is a question of 
fact in each case. What devices advertise or indicate such 
business is a further question of fact in each case. In my 
opinion, this provision is broad enough to permit not only 
a device stating the general nature of the business but also 
a device which advertises or indicates a particular detail of 
the business which may be thought reasonably calculated 
to attract custom. The advertising of a particular com- 
modity as exposed for sale upon the premises may well in- 
clude matter indicating the manufacturer of the commodity. 
The proprietor of the business may consider that the man- 
ufacturer's name constitutes an additional recommendation 
of the particular product. It is difficult to answer cate- 
gorically a question which so largely involves varying con- 
siderations of fact, but so far as it is possible I answer your 
question in the affirmative. There will be, however, a line 
in fact between devices which, as an incident to the adver- 
tising or indicating of the business done on the premises, 
also advertise the manufacturer of an article sold thereon 
and devices which only advertise the manufacturer and 
ignore the business. The latter type of device does not 
come within the scope of the permission. 



jay r. benton, attorney-general. 25 

Massachusetts Agricultural College — Trustees — 
President — Acceptance of Gift. 

The president of the Massachusetts Agricultural College is without authority to 
accept gifts for the college ; such power lies in the board of trustees. 

You have asked my opinion upon the following matter : — 

The president of the Massachusetts Agricultural College informs 
me that a group of farmers wish to present a Ford truck to the college 
for the use of the Cranberry Station. He wishes me to ascertain whether 
or not he can legally accept the gift of the truck. 

The Massachusetts Agricultural College is a State institu- ^^^s^on JnAd- 
tion, managed and administered on behalf of the Common- ^'S Finance. 
wealth by a board of trustees appointed under G. L., c. 15, Febma?y le. 
§ 20. The president of the college is elected by the trustees, 
who define his duties. G. L., c. 75, § 13. I am of the opin- 
ion that the president of the college has no authority to 
accept gifts for the use of the institution, but that the trus- 
tees are empowered so to do. 

The college is not for all purposes an independent entity, 
but functions within the Department of Education as one of 
the many forms of the Commonwealth's activities. 

The physical property which the college uses has its title 
vested in the Commonwealth, and gifts to the college are in 
effect gifts to the Commonwealth. The Commonwealth 
alone has power to accept or reject donations offered to it. 
Such power may, however, be delegated by the Common- 
wealth through the Legislature to its administrative sub- 
divisions. 

G. L., c. 75, § 7, provides: — 

The trustees shall administer property held in accordance with special 
trusts, and shall also administer grants or devises of land and gifts or 
bequests of personal property made to the commonwealth for the use 
of the college, . . . 

The board of trustees, as constituted under G. L., c. 15, 
§ 20, is a branch of the administrative government of the 
Commonwealth, and in view of the powers specifically con- 



26 



OPINIONS OF THE ATTORNEY-GENERAL. 



f erred upon it by G. L., c. 75, it may be inferred that it has 
the power to receive unconditionally gifts of personal prop- 
erty, such as an automobile truck, for the use of the college, 
title to which vests in the Commonwealth. VI Op. Atty. 
Gen. 636. 

The president of the college is elected by the trustees, 
and his duties are defined by them. The Legislature has 
conferred upon him no powers with relation to holding or 
administering property. The office itself carries with it no 
implied power to place the Commonwealth in the position of 
a donee of a preferred gift, and there is no legislative enact- 
ment indicating any intent to confer such authority upon 
him. He is not such an administrative officer of the Com- 
monwealth as may accept gifts upon its behalf, and a gift 
to the college is in effect a gift to the Commonwealth. 



Constitutional Law — Maintenance of Athletic 
Field by a City — Admission Fee. 

A bill which provides that the director of the department of public property of the 
city of Lawrence, under the direction of its city council, may maintain an 
athletic field in said city and may permit the use of said field for athletic 
games and other entertainments of a public nature, at which an admission 
fee may be charged, but which does not provide that such field is to be used 
exclusively for rental purposes, would be constitutional. 



To the Senate 
Committee on 
Cities. 

1926 
February 19. 



You have requested my opinion as to the constitutionality 
and legality of Senate Bill No. 179, now before your com- 
mittee, entitled "An Act relative to the maintenance of an 
athletic field in the city of Lawrence." This act provides 
as follows : — 

Section 1. The director of the department of public property of 
the city of Lawrence, under the direction of its city council, may main- 
tain an athletic field, with suitable equipment, on land on Osgood Street 
and Winthrop Avenue, owned by the city and now known as Memorial 
Park, and may permit the use of said field for athletic games and other 
entertainments of a public nature, at which an admission fee may be 
charged, to such person or persons and upon such conditions as may be 
fixed by the said director, with the approval of the city council. 



JAY R. BENTON, ATTORNEY-GENERAL. 27 

It does not appear in what manner this land was acquired 
by the city of Lawrence, whether by a taking under the right 
of eminent domain, purchase or gift. 

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

Land acquired by a city or town by eminent domain or through 
expenditure of pubhc 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 
pubUc 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, 239 U. S. 14, 16. 

The Legislature may, under our Constitution, authorize 
the sale or lease of land held for a public purpose when the 
public purpose designated has been completely 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 public purpose for which 
the land was acquired. Chase v. Sutton Mfg. Co., 4 Cush. 
152; Winnisimmet Co. v. Grueby, 209 Mass. 1; Bancroft v. 
Cambridge, 126 Mass. 438; Worden v. New Bedford, 131 
Mass. 23; Dingley v. Boston, 100 Mass. 544; Davis v. Rock- 
port, 213 Mass. 279; Wright v. Walcott, supra; Sweet v. 
Rechel, 159 U. S. 380. But legislation designed or framed 
to accomplish the ultimate object of placing property under 
the control 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 uncon- 
stitutional. Wright V. Walcott, supra; Salisbury Land & 
Improvement Co. v. Commonwealth, 215 Mass. 371. 

In the absence of any evidence that Memorial Park, 
referred to in the bill under consideration, was given to the 
city of Lawrence by devise, grant, bequest, in trust or upon 



28 OPINIONS OF THE ATTORNEY-GENERAL. 

condition, I assume that it was purchased or taken by emi- 
nent domain for park purposes. If the park is already 
under the control and management of park commissioners, 
so that the result of the bill is to work simply a change of 
control of said park land by taking it from one official 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 constitutional objection. To such a 
situation the case of Gary Library v. Bliss, 151 Mass. 364, 
seems applicable. 

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 use of 
said land for athletic games and other entertainments of a 
public nature, at which an admission fee may be charged, 
to such person or persons and upon such conditions as may 
be fixed by the director of the department of public property 
of the city of Lawrence, with the approval of the city council. 

The law seems settled in this Commonwealth that while a 
municipality cannot purchase or take land and buildings or 
erect buildings for business or speculative purposes, neverthe- 
less, having such land and buildings, acquired in good faith 
for proper municipal purposes, it has the right to allow it 
to be used incidentally for other purposes, either gratuitously 
or for a compensation. Such a use is within its legal author- 
ity and is in fact common in many cities and towns. For 
example, operating a ferry, see Davies v. Boston, 190 Mass. 
194; letting a public hall for profit, Little v. Holyoke, 177 
Mass. 114, Oliver v. Worcester, 102 Mass. 489, 499; manag- 
ing a farm, partly for the support of its poor, partly for the 
maintenance of its highway department and partly for the 
production of income, Nejf v. Wellesley, 148 Mass. 487; 
operating a stone crusher for profit, Duggan v. Peabody, 
187 Mass. 349, Collins v. Greenfield, 172 Mass. 78. In such 
cases, where the city does not devote the property exclusively 
to public purposes but lets it, or a part of it, for its own ad- 



JAY R. BENTON, ATTORNEY-GENERAL. 29 

vantage and emolument by receiving rents or otherwise, 
it is of course liable, while it is so let, in the same manner 
as a private owner would be. See Davis v. Rockport, supra. 
In practically all of the deciding cases the property was held 
and administered for some purely public purpose, the use of 
unneeded or unused portions of it for the profit of the 
municipality being merely incidental and a minor use. 

The bill under consideration, while it does not in terms 
provide that the park referred to shall be used exclusively 
for income purposes, nevertheless, as it reads, that would 
seem to be the major purpose, and the money for the mainte- 
nance and equipment of the athletic field apparently is to 
be raised by general taxation. These features should be 
carefully considered, as they make the bill clearly distin- 
guishable from the adjudicated cases. The difficulty lies 
not in the statement of the governing pi:inciples of law but 
in their application to particular facts. With some hesi- 
tancy I arrive at the conclusion that inasmuch as the bill 
does not provide that the said athletic field is to be used 
exclusively for rental purposes, and apparently may be used 
also for municipal purposes for the benefit of all the citizens, 
the use for profit may well be considered to be merely inci- 
dental. Under this view of the question I believe the bill is 
constitutional. 



Constitutional Law — Retroactive Tax Laws. 

A statute reviving a liability to tax under a prior law, while retroactive, is not for 

that reason unconstitutional. 
Bills amending G. L., c. 63, § 52, and St. 1925, c. 343, § 13, examined and held to 

be free from constitutional defect. 

You ask me to advise your committee relative to the to the House 

^ Committee on 

form and constitutionality of House Bills Nos. 1085 and 1086, ^^l^^""^ 
and at the same time to give the committee any suggestions February 19. 
that may occur to me as to the merit or demerit of the pro- 
posed legislation. 



30 OPINIONS OF THE ATTORNEY-GENERAL. 

House Bill No. 1085 amends G. L., c. 63, § 52, which was 
under consideration by the court in the recent case of W. & 
J. Shane v. Commonwealth, 253 Mass. 529. Section 52 
provides, in substance, that if the excise imposed by section 
32 on domestic business corporations, or that imposed by 
section 39 on foreign corporations, is declared unconstitu- 
tional by the Supreme Court of the United States or the 
Supreme Judicial Court of the Commonwealth, the whole 
corporation excise tax law enacted in 1919 shall be null and 
void and the prior law shall be revived, that all taxes which 
have become due under such prior law shall be assessed 
forthwith, and that the time for making such assessment 
and for applying to the court for abatement of taxes under 
section 32 or section 39 shall be extended for six months 
from the date of the determination. 

The proposed substitute provides separately for the excise 
imposed by section 32 and that imposed by section 39. 
It revives the prior law only for the period beginning with the 
calendar year prior to the determination of the court. It 
extends the time for assessing taxes and enforcing rights 
for a period of a year instead of six months, and it provides 
that excises paid under the law declared unconstitutional 
shall be credited against taxes assessed under the prior law. 

The liability to tax under prior law revived and made 
applicable for a period already passed by section 52, as it 
now is and in the proposed amended form, is, of course, 
retroactive; but that feature does not make it unconstitu- 
tional. "Laws of a retroactive nature, imposing taxes or 
providing remedies for their assessment and collection and 
not impairing vested rights, are not forbidden by the 
Federal Constitution." Kentucky Union Co. v. Kentucky, 
219 U. S. 140, 152. See also Stockdale v. Insurance Com- 
panies, 20 Wall. 323, 331, 332; Brushaber v. Union Pacific 
R. R. Co., 240 U. S. 1, 20; Forbes Boat Line v. Board of Com- 
missioners, 258 U. S. 338. The limitation of the right to 
recover taxes assessed under the law held unconstitutional 
to the period beginning with the calendar year prior to the 



JAY R. BENTON, ATTORNEY-GENERAL. 31 

decision does not affect the constitutional rights of the tax- 
payer, which, as the court has several times held, are suffi- 
ciently protected by section 77. W. & J. Shane v. Com- 
monwealth, supra; International Paper Co. v. Common- 
wealth, 232 Mass. 7; Lever Brothers Co. v. Commonwealth, 
232 Mass. 22; Burrill v. Locomobile Co., 258 U. S. 34. 

House Bill No. 1086 amends St. 1925, c. 343, § 13, which 
contains provisions similar to section 52 made applicable 
to the tax imposed on banks and trust companies. The 
proposed amendment is similar in form to the amendment 
made by House Bill No. 1085, except that taxes under the 
prior law, when revived, are to be assessed for the year 1926 
and subsequent years instead of from and after the calendar 
year preceding the date of the decision, and taxes assessed 
under the invalid law are to be credited for a corresponding 
period. 

In my opinion, these bills, if enacted, would be constitu- 
tional, and they seem to me to be in proper form and rea- 
sonably adapted to cure defects and difficulties which be- 
came apparent in connection with the proceedings instituted 
by W. & J. Sloane. 



Taxation — Exemption of Veterans. 

A statute amending G. L., c. 59, § 5, cl. 23rd, adding to the class of veterans thereby 
given a partial exemption from local property taxation, would be constitutional, 
if enacted. 

You have transmitted to me for examination and report Govwnor. 
Senate Bill No. 172, entitled "An Act granting to certain Febmi?y24. 
veterans a partial exemption from local property taxation." 

This bill proposes to amend G. L., c. 59, § 5, cl. 23rd, 
exempting soldiers and sailors who served in the War of the 
Rebellion from payment of a poll tax and to the amount of 
one thousand dollars from taxation of their property and the 
property of their wives or widows if they are not entitled 
to exemption under clause 22nd, with certain provisos. 



32 OPINIONS OF THE ATTORNEY-GENERAL. 

The amendment includes in the class of persons entitled to 
the one thousand dollar exemption "soldiers and sailors who 
served in the military or naval service of the United States 
in the Spanish war or in the Philippine insurrection or the 
China relief expedition and were honorably discharged or 
honorably released therefrom." 

"Reasonable classification so far as concerns taxation or 
exemption from taxation may be made by the Legislature." 
Massachusetts General Hospital v. Belmont, 233 Mass. 190, 
201. The payment of military aid out of State funds to 
persons who have served in the army or navy of the United 
States is a public use justifying such expenditure. Opinion 
of the Justices, 211 Mass. 608. Partial exemption from taxa- 
tion has been granted to soldiers and sailors, under our 
statutes, since 1894. The proposed amendment merely 
adds to the class of soldiers and sailors entitled to the benefits 
of one of the exemptions provided. 

In my opinion, the bill, if enacted into law, would be con- 
stitutional. 



jay r. benton, attorney-general. 33 

Constitutional Law — Power of Legislature over 
Charitable Foundations — Change of Name of 
School — Validation of Acts of Charitable Cor- 
poration — Alteration of Number and Qualifica- 
tions OF Trustees — Contract Clause — State 
Legislation prior to the United States Constitu- 
tion — Power of Donor to release Conditions. 

Charitable trusts held by municipalities are, in the absence of express restriction 

on the gift, subject to a certain amount of statutory regulation with respect 

to the mode of administration. 
Statutes purporting to vary the substance or express administrative provisions of 

a charitable trust are ordinarily unconstitutional. 
A statute purporting to change the name of a school founded by a private donor, 

who expressly provided for its name, var>-ing the apparent purpose of the school 

from "agricultural" to "vocational" is unconstitutional. 
A statute changing the name of such a school, so as to include the word "academy" 

rather than "school," may not, under given circumstances, be unconstitutional. 
The charter of a corporation established in 1784, without reservation of right to 

amend, cannot be altered without the consent of the corporation. 
A statute purporting to "validate" the acts of a charitable corporation done under 

a name other than the corporate name is at least valid as a release of any right 

of the Commonwealth to complain thereof. 
Where, prior to the adoption of the United States Constitution, the Legislature 

altered a charitable foundation by an act changing the number of trustees 

from that provided for by the donor, the Legislature may now, with the 

corporation's consent, further alter the number of trustees. 
Where, under such circumstances, the original donor had by his will requested the 

abolition of a requirement as to the residence of the trustees, the Legislature 

may, with the consent of the corporation, alter the charter to comply with such 

request. 



To the House 
Committee on 



March 2. 



You have asked my opinion whether House Bill No. 301 
and House Bill No. 351, §§ 1 and 2, both relating to certain ^%7t"- 
charitable foundations, would, if enacted into law, violate 
the conditions of the original gifts. I assume that your 
ultimate question is whether the bills, if enacted, would be 
constitutional. 

I take up first House Bill No. 301. This purports to 
authorize the change of name of Smith's Agricultural School, 
an institution carried on by the city of Northampton, under 
the will of Oliver Smith, to Smith Vocational School. The 
will, the provisions of which were accepted by the then town 
of Northampton in 1847, is emphatic in providing that the 



34 OPINIONS OF THE ATTORNEY-GENERAL. 

name of the institution, for the establishment of which a 
substantial sum of money was given, should be ''Smith's 
Agricultural School." Although it provides for the estab- 
lishment, "on the premises," of a "School of Industry," 
the dominant emphasis of the relevant portion of the will is 
upon the "Art and Science of Husbandry and Agriculture." 
The name reflects, and was intended to reflect, this domi- 
nance. 

Whether or not changed circumstances, coming with the 
passage of time, now would warrant a court of equity in 
making the change which this bill seeks to effectuate, is not 
the present question. It is whether the Legislature can do 
it. The power of the General Court over charitable trusts 
held by municipalities is considerable. Opinion of the 
Justices, 237 Mass. 613, 618. In respect to the mechanics 
of administration, the donor who confides his trust to a city 
or town without express restrictions subjects it to a certain 
amount of regulation flowing from the general power of the 
Legislature over the public affairs of the trustee of his selec- 
tion. Ware v. Fitchhurg, 200 Mass. 61. But a measure 
which undertakes to vary the substance of the trust, or even 
an administrative provision which is express and unequivo- 
cal, will ordinarily pass the bounds of this power. Cary 
Library v. Bliss, 151 Mass. 364. In my opinion, this bill is 
of such a character, and, if enacted, will be unconstitutional. 
Opinion of the Justices, supra, 617. 

House Bill No. 351 purports to alter the charter of a cor- 
poration established in 1784, St. 1784, c. 32. This cannot 
be done without the consent of the corporation. Opinion 
of the Justices, 237 Mass. 619, 622. The bill is deficient in 
that it is not made conditional upon such consent. As, 
however, this may be remedied by amendment, I will give 
my opinion upon its various provisions as if such amendment 
had been made. 

1. The bill purports to change the name of the corporation 
from "The Trustees of Derby School" to the "Trustees of 
Derby Academy." The difference between the words 



JAY E. BENTON, ATTORNEY-GENERAL. 35 

"school" and ''academy" is not a wide one, and the former 
word is not more appropriate to the expressed purposes of 
the particular institution. The deed by which the school 
was founded did not directly provide for the name of 
"Derby School" but rather that the trustees should secure 
an act of incorporation under the name of the "Trustees 
of Derby School," a condition which has been fulfilled. 
The change from a school to an academy, whatever the 
significance of such a change may be thought to have been, 
was undertaken by St. 1797, c. 9. Under these circum- 
stances, I should hesitate to say that the change of the 
corporate name now contemplated would violate the obliga- 
tion of any contract between the original donor and the 
trustees or corporation, or would so modify the charity 
itself as to amount to a usurpation of judicial power. 

2. The bill purports to validate all acts of the corporation 
done under the name of the Trustees of Derby Academy 
after June 17, 1797, to the same extent as if done under the 
name of the Trustees of Derby School, and to confirm as the 
property of the corporation, the Trustees of Derby Academy, 
all property, real and personal, now standing in the name of 
the Trustees of Derby School or the Trustees of Derby 
Academy. These provisions can be construed as intended 
merely to release whatever rights the Commonwealth 
might otherwise have to complain of the business of the 
corporation having been done under an erroneous name, and 
to authorize specifically the future dealing with the corporate 
property under the name which the bill confers. Thus 
construed, they would be constitutional. It is therefore 
unnecessary to consider whether, given some broader con- 
struction calculated to affect the rights of third persons, 
they would be unconstitutional. 

3. There is a provision in the bill changing the number of 
trustees, and removing a limitation hitherto existing as to 
the residence of the trustees. There was no express provi- 
sion in the original deed as to the number of trustees, al- 
though the conveyance was in fact to ten named persons and 



36 OPINIONS OF THE ATTORNEY-GENERAL. 

contained provision for the filling of vacancies. The 
Legislature, in the charter of 1784, undertook to deal com- 
prehensively with the subject, and provided for a board of 
not more than eleven nor less than nine, of whom five should 
constitute a quorum. The provision superseded the implica- 
tions of the deed at a time when the Constitution of the 
United States had not been adopted. It cannot, therefore, 
be attacked upon the ground of the Contract Clause. It 
furnished a new starting point for the future, creating a 
contract with the corporation, in the sense in which a charter 
is a contract, but creating no contract in any sense with the 
original donor. I have not been advised of the existence of 
any subsequent donors. In my opinion, this administrative 
feature is now subject to further change by the Legislature, 
with the consent of the corporation. As to the removal of 
the limitation respecting the residence of the trustees, this 
comes in response to the specific request of the founder, in 
the codicil to her will, which request must release, if any- 
thing can release, her personal right to have the charity 
conducted, in this respect, upon the original terms. See 
Gary Library v. Bliss, 151 Mass. 364, 379. 

Upon the facts which have been presented, although 
several aspects of House Bill No. 351, §§ 1 and 2, are not 
free from doubt, I am not prepared to say that the measure, 
if enacted, will not be held constitutional. 



jay r. benton, attorney-general. 37 

Constitutional Law — Taxation — Corporate Fran- 
chise Tax — Foreign Telephone Company. 

The tax imposed by G. L., c. 63, § 56A, on foreign telephone companies is sufficiently 
definite so that it is not open to the objection that legislative power is unlaw- 
fully delegated to the Commissioner. 

There is not such discrimination in the tax imposed, by reason of its application 
to foreign telephone companies only, as to constitute a denial of the equal 
protection of the laws. 

You have requested my opinion as to the constitutionaUty TotheSenate. 
of G. L., c. 63, § 56A, inserted in said chapter by St. 1923, March_i5. 
c. 310. The section is as follows: — 

A foreign telephone company carrying on part of its business out- 
side of the commonwealth may, within the time when its franchise 
tax return under this chapter is due to be filed, request determination 
of the value of its corporate franchise subject to taxation in the com- 
monwealth by a method other than that hereinbefore provided and 
hereinafter referred to as "the statutory method." Such a foreign tele- 
phone company shall within thirty days thereafter file with the com- 
missioner, under oath of its treasurer, a statement showing in detail 
the value of its corporate franchise as aforesaid, and such other informa- 
tion as the commissioner shall require for assessment of the tax. The 
commissioner shall in such case ascertain the value of such franchise as 
aforesaid and to that end may determine such value by a method other 
than "the statutory method" but nothing herein contained shall be 
construed to prevent the application of "the statutory method" in case 
the commissioner shall deem such method equitable. 

G. L., c. 63, §§ 53-58, impose a tax upon the corporate 
franchise of certain corporations, not taxable under the cor- 
poration excise tax law, including foreign telephone, tele- 
graph, railroad, street railway and electric railroad cor- 
porations. The tax is measured by the value of the cor- 
porate franchise less certain deductions, which are different 
in the cases of different classes of corporations, specified in 
section 55. In the case of a foreign telephone company the 
deductions allowed are "so much of the value of its capital 
stock as is proportional to the number of telephones used 
or controlled by it, or under any letters patent owned or con- 
trolled by it, without the commonwealth"; and "the value 



38 OPINIONS OF THE ATTORNEY-GENERAL. 

of its works, structures, real estate, machinery, poles, under- 
ground conduits, wires and pipes subject to local taxation 
within the commonwealth" (clauses third and fourth). 
The tax so imposed is a tax upon the corporation on account 
of property owned and used by it within the State. West- 
ern Union Telegraph Co. v. Massachusetts, 125 U. S. 530, 
552; Massachusetts v. Western Union Telegraph Co., 141 
U. S. 40, 45. In enacting section 56A the Legislature no 
doubt had in mind that a tax levied on a foreign telephone 
company under section 55 and clauses third and fourth might 
result in an unconstitutional burden on such a corporation. 
Fargo v. Hart, 193 U. S. 490; Union Tank Line Co. v. Wright, 
249 U. S. 275; Wallace v. Hines, 253 U. S. 66. A somewhat 
similar alternative method for determining value for the 
purpose of laying excise taxes on foreign business corpora- 
tions is to be found in G. L., c. 63, § 42. 

In considering the question of the constitutionality of 
section 56A there appear to be two possible lines of inquiry: 

First, whether the tax imposed is so defined that it may 
not be open to the criticism that legislative power is dele- 
gated to the Commissioner; and 

Secondly, whether, in applying the provision to foreign 
telephone companies alone, there is some unconstitutional 
discrimination in favor of or against such corporations. 

I interpret the term ''value of its corporate franchise 
subject to taxation in the commonwealth," which by section 
56A is to be ascertained by the Commissioner, to mean 
value of its corporate franchise employed within the Com- 
monwealth. So interpreted, the tax is imposed upon 
property subject to taxation by the Commonwealth. West- 
ern Union Telegraph Co. v, Massachusetts, 125 U. S. 530; 
Postal Telegraph Co. v. Adams, 155 U. S. 688; Adams 
Express Co. v. Ohio, 166 U. S. 185, 223-225; Atlantic, etc., 
Tel. Co. V. Philadelphia, 190 U. S. 160, 163; Cudahy Packing 
Co. V. Minnesota, 246 U. S. 450, 453; Union Tank Line v. 
Wright, 249 U. S. 275; Air-Way Corporation v. Day, 266 
U. S. 71; Bass, Ratcliff & Gretton, Ltd., v. State Tax Com- 



JAY R. BENTON, ATTORNEY-GENERAL. 39 

mission, 266 U. S. 271. In my opinion, the tax imposed 
by the statute is sufficiently definite so as not to be open to 
the objection of an unlawful delegation of legislative power. 
The New York tax law for many years imposed an annual 
franchise tax upon foreign and domestic corporations to be 
computed upon the basis of the amount of its capital stock 
employed within the State, without further defining the 
method by which the value of the stock so employed was to 
be determined. Laws of New York, 1880, c. 542; Tax Law, 
§ 182. I conclude, therefore, that so far as the first question 
is concerned the section is not unconstitutional. 

The second inquiry is whether there is such discrimination 
in the tax by reason of its application to a foreign telephone 
company only as to constitute a denial of the equal protec- 
tion of the laws under the United States Constitution. 
Concerning this question the Supreme Court of the United 
States has recently said : — 

It is unnecessary to say that the "equal protection of the laws" re- 
quired by the Fourteenth Amendment does not prevent the States from 
resorting to classification for the purposes of legislation. Numerous 
and familiar decisions of this court establish that they have a wide range 
of discretion in that regard. But the classification must be reasonable, 
not arbitrary, and must rest upon some ground of difference having a 
fair and substantial relation to the object of the legislation, so that all 
persons similarly circumstanced shall be treated alike. The latitude of 
discretion is notably wide in the classification of property for purposes 
of taxation and the granting of partial or total exemptions upon grounds 
of policy. 

Royster Guano Co. v. Virginia, 253 U. S. 412, 415. In 
Beers v. Glynn, 211 U. S. 477, 484, the court said: — 

The power of the State in respect to the matter of taxation is very 
broad, at least so far as the Federal Constitution is concerned. ... It 
may tax one class of property by one method of procedure and another 
by a different method. 

See also Bell's Gap R. R. Co. v. Pennsylvania, 134 U. S. 232, 
237. Tax laws classifying foreign corporations and impos- 



40 OPINIONS OF THE ATTORNEY-GENERAL. 

ing a particular tax different from other taxes upon foreign 
corporations of a certain class have several times been 
upheld. Michigan Central R. R. v. Powers, 201 U. S. 245, 
293; Citizens' Telephone Co. v. Fuller, 229 U. S. 322; North- 
western Life Insurance Co. v. Wisconsin, 247 U. S. 132. It 
is my opinion that in this aspect, while the question may be 
open to some doubt, section 56A is not unconstitutional. 

I therefore advise you in response to your request that, in 
my opinion, G. L,, c. 63, § 56A, is constitutional. 



March 15. 



Insurance — Contracts — Service Agreements 

A contract to make repairs caused by accident may be a contract of insurance and 
not a service agreement when the element of hazard enters into the terms 
of the undertaking. 

To the Com- You have requested my opinion as to whether or not 

missioncr of t. ^ r- 

^°7926°*'' ^^ agreement issued by the Eastern Auto Body Service Cor- 
poration, which you have submitted to me for examination, 
is a contract of insurance within the meaning of G. L., 
c. 175, § 2. 

By the foregoing statute a contract of insurance is defined 
to be — 

An agreement by which one party for a consideration promises to 
pay money or its equivalent, or to do an act valuable to the insured, 
upon the destruction, loss or injury of something in which the other 
party has an interest. 

The instant agreement recites in its provisions that it is 
not a policy of insurance but is a ''service agreement." 
Its true character, however, must be determined from 
analysis of its terms. Various contracts of a similar nature 
have been considered by me and by my predecessors in 
office, and the general principles applicable to the distinction 
between contracts to render service and contracts of insur- 
ance have been set forth at length in many opinions (VI 
Op. Atty. Gen. 150; VII Op. Atty. Gen., p. 139, and others 
there cited). 



JAY R. BENTON, ATTORNEY-GENERAL. 41 

An essential element of a contract of insurance is hazard. 
An insured receives indemnity from loss by reason of the 
happening of events without his control or the control of 
the insurer. If a contract be merely an agreement to per- 
form work for another at the option of the latter, or to 
make ordinary repairs upon an instrumentality of another 
as they may become necessary by the usual operation of 
such instrumentality, and not when created by accident 
resulting from the intervention of some cause foreign to 
the usual operation, it is not a contract of insurance. I Op. 
Atty. Gen. 544, 547. If, however, a contract calls for 
indemnity in money or the making of repairs, in the event 
of damage to an instrumentality of one of the contracting 
parties, which can only be made necessary by the happening 
of an accident, the contract may be one of insurance. 

The service contracts which have been the subject of 
previous opinions by the Attorney-General and his prede- 
cessors, and have been said not to be contracts of insurance, 
have lacked the element of hazard and have differed in 
their terms from the instant agreement in important par- 
ticulars. 

In the agreement submitted to me the Eastern Auto 
Body Service Corporation promises, in consideration of the 
payment of a sum of money, to make certain enumerated 
kinds of repairs during one year to a designated automobile 
of the other party to the contract, and to make such repairs 
regardless of the cause thereof, whether accident, collision, 
negligence or of whatever character. A large proportion of 
the enumerated kinds of repairs which the corporation 
agrees to make are of a sort which more commonly are made 
necessary by damage caused by the accidental application 
of external violence than by the ordinary operation of an 
automobile. The removal of dents in the body, in the 
metal part of the top, in the doors, in the hood, in the 
fenders, on the gasoline tank and brackets, which are 
enumerated repairs required by the contract, are, as a 
matter of common knowledge, more likely to result from 



42 OPINIONS OF THE ATTORNEY-GENERAL, 

accident than from the ordinary wear and tear of the mere 
operation of an automobile. The replacement of glass in 
an automobile, "that may be broken, resulting from any 
act, event or fact whatsoever other than wilful destruction," 
which is one of the enumerated repairs that the corporation 
agrees to make, is a form of repair which almost invariably 
is made necessary by damage resulting from force acci- 
dentally applied to a car, rather than from its usual opera- 
tion. Clause (3) of the instant agreement, relative to 
towing, provides for the rendering of service not merely 
at the option of the assured but when the car is disabled, 
whether by causes incident to its ordinary operation or by 
accident or collision." 

In view of the intimate connection between accidental 
violence and the kinds of damage as to which the corpora- 
tion is to make the holder of the agreement whole by per- 
forming the necessary and stipulated repairs, I am con- 
strained to say that such an element of hazard enters into 
the contract that it is plainly distinguishable from other 
service contracts which have been held, by reason of the 
lack of this characteristic, not to be contracts of insurance. 
The agreement under consideration provides for virtual 
reimbursement for loss to the other contracting party by the 
performance of acts valuable to him, namely, the making of 
repairs. It is supported by a valid consideration. Al- 
though possibly it is somewhat broader in its scope, pro- 
viding, as it perhaps does, for repairs made necessary by 
ordinary usage as well as by accident, yet, read as an entirety, 
it is virtually a contract of insurance not unlike the type 
commonly known as collision sustained, except that it 
provides only for the making of certain repairs instead of 
for the payment of money to the insured. 

I am of the opinion that the contract which you have 
submitted to me is one of insurance, within the meaning of 
G. L., c. 175, § 2. 



March 16. 



jay r. benton, attorney-general. 43 

Agriculture — Inspection of Apples — Foreign Law. 

An inspector of apples from another State is without authority to inspect apples 
grown in such State when stored within the Commonwealth. 

You request my opinion as to the authority of an in- to the Com- 

^- 'J ^ •- missioner of 

spector representing the New Hampshire Department of ^^y^^^*^'^^- 
Agriculture to make inspection of New Hampshire apples 
in market and storage houses within this Commonwealth. 
I am unaware of any statute of Massachusetts or of the 
United States which confers such authority upon inspectors 
of the New Hampshire Department of Agricultm*e. No 
such power is given by G. L., c. 94, §§ 104-111, as amended, 
nor by U. S. Compiled Statutes of 1918, §§ 8574-8, com- 
monly known as the United States Apple Grading Law. 
In the absence of specific statutory authority, no foreign 
inspector possesses any such power as you refer to in your 
letter. Such an inspector might have access to local market 
and storage houses and might inspect apples therein law- 
fully if permission so to do were given by the owners of the 
buildings and of the apples. 



Motor Vehicle — Transportation of Intoxicating 
Liquor — Forfeiture. 

a motor vehicle conveying intoxicating liquor in bottles or other receptacles is not 
a "vessel" under G. L., c. 138, § 64, but may be an "implement of sale" there- 
under. 

You request my opinion upon the following questions : — mL*ione?°™f 

Public Safety. 

May an automobile used for the transportation or sale of liquors, March is. 
contrary to the laws of the Commonwealth, be deemed, within the ' 

meaning of the law, an implement for the sale of such liquors or a con- 
tainer thereof, and therefore subject to forfeiture and disposition as an 
implement or container? 

Or may an automobile when especially equipped for the transpor- 
tation or sale of liquors, contrary to the laws of the Commonwealth, 
be deemed, within the meaning of the law, an implement for the sale 
of such liquors or a container thereof, and therefore subject to forfeiture 
and disposition as an implement or container? 



44 OPINIONS OF THE ATTORNEY-GENEEAL. 

G. L., c. 138, § 64, provides: — 

The officer to whom the warrant is committed shall search the premises 
and seize the liquor described in the warrant, the casks or other vessels 
in which it is contained, and all implements of sale and furniture used or 
kept and provided to be used in the illegal keeping or sale of such liquor, 
if they are found in or upon said premises, and shall convey the same to 
some place of security, where he shall keep the liquor and vessels until 
final action is had thereon. 

I will take up first the question whether a motor vehicle 
may be considered a "vessel," under the provisions of the 
above statute. A vessel is "a hollow receptacle of any form 
or material, but especially one capable of holding a liquid, 
as a pitcher, bottle, vase, kettle, or cup." Standard 
Dictionary. 

The bottles, cans, containers or other receptacles in which 
the liquor is held are the ''vessels in which it is contained." 
Intoxicating liquor found in receptacles in or upon a motor 
vehicle will not transform such a vehicle into a vessel in 
which said liquor is contained, under the meaning of the 
statute. 

It is conceivable, however, that a motor vehicle might be 
constructed or equipped with tanks or other receptacles, 
as part thereof, capable of holding liquor in volume, in which 
case such a vehicle could "be found to be an implement of 
sale or container," or vessel, within the intendment of the 
statute. Commonwealth v. Certain Intoxicating Liquors, 
253 Mass. 581. 

Whether motor vehicles may be "implements of sale 
. . . used or kept and provided to be used in the illegal 
keeping or sale of . . . liquor," is the other part of the 
inquiry under consideration. 

An implement is defined as "an instrument used in work." 
Standard Dictionary. Also, "that which fulfils a want or 
use." Davis v. Anchor Mutual Fire Ins. Co., 96 la. 70. 

Whether a motor vehicle is an implement of sale or vessel 
used in the illegal keeping or sale of intoxicating liquors is a 
question of fact for the court or jury, upon all the evidence 



JAY R. BENTON, ATTORNEY-GENERAL. 45 

in the particular case. Commonwealth v. Certain Intoxi- 
cating Liquors, supra. 

A succinct statement of the law on the points raised in 
your letter is found in the language of the court in the 
opinion just cited above. He stated as follows: — 

The various provisions of the statute plainly show that this is a pro- 
ceeding in rem; it relates to the liquors, containers and implements of 
sale. The question in issue was whether the truck was used as an imple- 
ment of sale or container used in the illegal keeping or sale of intoxicating 
liquor. . . . 

The contention that the truck could not be found to be an imple- 
ment of sale or a container cannot be sustained. The evidence before 
the jury is not before us and we are unable to say that it did not justify 
the finding. 



March 18. 



License — Storage of Gasoline — State Fire Marshal. 

Where notice of a hearing on an application for a license to store gasoline in the 
city of Boston was not given as required by G. L., c. 148, § 14, as amended by 
St. 1925, c. 335, § 1, the State Fire Marshal has authority, under G. L., c. 148, 
§§ 30, 31 and 45, on appeal from an order of the board of street commissioners 
granting the license, to rescind the action of the board because of the want of 
proper notice. 

You ask my opinion in regard to a petition filed by the nji'Jione?°'{^f 
Jenney Manufacturing Company with the board of street ^"%'^l^^^^y- 
commissioners of Boston for a license to keep and store 
gasoline in a structure within the city limits. The pro- 
visions for granting such a license are contained in G. L., 
c. 148, § 14, as amended by St. 1925, c. 335, § 1, which 
provides, in part, as follows : — 

No building or other structure shall, except as provided in section 
fifteen, be used for the keeping, storage, manufacture or sale of any of 
the articles named in section ten, except fireworks, firecrackers and 
torpedoes, unless the aldermen or selectmen shall have granted a license 
therefor for one year from the date thereof, after a public hearing, held 
in the case of cities by the aldermen or any committee thereof designated 
by them, notice of the time and place of which hearing shall have been 
given, at the expense of the applicant, by the clerk of the city or by the 



46 OPINIONS OF THE ATTORNEY-GENERAL. 

selectmen, by publication, not less than seven days prior thereto, in a 
newspaper pubhshed in the representative district, if any, otherwise in 
the city or town, wherein the land on which such license is to be exercised 
is situated, and also by the applicant by registered mail, not less than 
seven days prior to such hearing, to all owners of real estate abutting 
on said land, and unless a permit shall have been granted therefor by the 
marshal or by some official designated by him for the purpose; . . . 

G. L., c. 148, § 30, gives to the State Fire Marshal, within 
the MetropoHtan District, the powers given by section 14 
and other specified sections with respect to the granting of 
licenses and permits. Section 31, as amended by St. 1921, 
c. 485, § 5, authorizes the Marshal to delegate the granting 
and issuing of licenses or permits to other designated officers. 
Section 45 authorizes the Marshal to hear and determine 
all appeals from acts and decisions of persons acting or 
purporting to act under his authority. I understand that 
in the city of Boston the board of street commissioners is 
authorized to act under authority delegated to them in 
accordance with the provisions of section 31. 

You state that the board of street commissioners ordered 
that notice be issued for a hearing on the petition on October 
26, 1925, that the Commonwealth, through the Department 
of Public Works, owns real estate adjoining the property 
with respect to which the license was sought, and that notice 
was not given by the applicant by registered mail not less 
than seven days prior to the hearing, as required by the 
statute. The board of street commissioners granted the 
license and an appeal was taken to you. You ask whether 
you have authority on the appeal to rescind the order of the 
board of street commissioners granting the license, because 
of non-compliance by the applicant with the requirement 
for giving notice by registered mail to abutting owners. 

In my opinion, your authority to rescind the action of 
the board for the reason assigned cannot be questioned, 
and I so advise you. See V Op. Atty. Gen. 718; VI Op. 
Atty. Gen. 329; VII Op. Atty. Gen. 293, 450. 



jay r. benton, attorney-general. 

Constitutional Law — Arbitrary Discrimination — Ex- 
emption OF Individual from Operation of General 
Law. 

a statute conferring on an individual the privilege of exemption from the operation 
of a general law is unconstitutional, because of arbitrary discrimination. 

A bill exempting a named individual from the operation of the civil service law and 
rules would be unconstitutional, if enacted. 



47 



To tho 



You have referred to me for examination and report Governor. 
House Bill No. 798, entitled "An Act providing for the March 20. 
appointment of Dennis J. O'Donnell, Junior, as a member 
of the regular police force of the city of Newton." 

The bill purports to authorize the city of Newton "to 
appoint Dennis J. O'Donnell, Junior, a member of its regular 
police force without civil service examination, notwith- 
standing any provision of the civil service laws and the 
rules and regulations made thereunder." 

It is a settled principle of constitutional law that a statute 
conferring on a particular individual the privilege of exemp- 
tion from the operation of a general law applicable to other 
persons similarly situated is unconstitutional. Such a 
statute violates the fundamental principle that the law must 
apply equally to all and that there shall be no arbitrary 
discrimination between different classes of persons. It is 
in violation of the principles underlying the system of 
government established by the Constitution of the Common- 
wealth as proclaimed in the Declaration of Rights, more 
particularly in the following provisions : — 

Article VL No man, nor corporation, or association of men, have 
any other title to obtain advantages, or particular and exclusive privi- 
leges, distinct from those of the community, than what arises from 
the consideration of services rendered to the public ; . . . 

Article VIL Government is instituted for the common good; for 
the protection, safety, prosperity, and happiness of the people; and 
not for the profit, honor, or private interest of any one man, family, 
or class of men: . . . 

Article X. Each individual of the society has a right to be pro- 
tected by it in the enjoyment of his life, liberty, and property, according 
to standing laws. . . . 



48 OPINIONS OF THE ATTORNEY-GENERAL. 

Holden v. James, 11 Mass. 396; Simonds v. Simonds, 103 
Mass. 572; Brown v. Russell, 166 Mass. 14, 21-25; Com- 
monwealth V. Hana, 195 Mass. 262, 266, 267; Bogni v. 
Perotti, 224 Mass. 152, 156, 157; VII Op. Atty. Gen. 331; 
cf. Opinion of the Justices, 166 Mass. 589. See also Lewis 
V. Webb, 3 Me. 326; Milton v. Bangor Railway & Electric 
Co., 103 Me. 218; Hamann v. Heekin, 88 Ohio St. 207; 
12 C. J. 1117. It is also in violation of the provision in the 
Fourteenth Amendment to the Constitution of the United 
States guaranteeing to all persons the equal protection of 
the laws. Yick Wo v. Hopkins, 118 U. S. 356, 369-374; 
Gulf, Colorado & Santa Fe Ry. Co. v. Ellis, 165 U. S. 150, 
155, 165; Cotting v. Kansas City Stock Yards Co., 183 U. S. 
79, 102-112; Connolly v. Union Sewer Pipe Co., 184 U. S. 
540, 558-563; Southern Ry. Co. v. Greene, 216 U. S. 400, 
417; Truax v. Raich, 239 U. S. 33; Truax v. Corrigan, 257 
U. S. 312, 332-339. See also Commonwealth v. Interstate, 
etc., St. Ry. Co., 187 Mass. 436, 438. 

The proposed act is a special act purporting to exempt 
the individual named from the operation of the civil service 
laws and rules. The civil service rules have the force of 
laws. Opinion of the Justices, 138 Mass. 601; Opinion of 
the Justices, 145 Mass. 587, 590; Attorney General v. Trehy, 
178 Mass. 186, 188; Ransom v. Boston, 192 Mass. 299, 304. 
In my opinion, it is beyond the constitutional authority of 
the Legislature to grant to any individual exemption from 
the operation of the law, and the rules and regulations of 
the Commissioner which have the force of law, respecting 
the civil service. 



March 22. 



jay r. benton, attorney-general. 49 

Civil Service — Suspension — Separation from the 

Service. 

Where a fireman was not suspended indefinitely but his suspension was expressly 
made for a definite period, w4th loss of pay, he is not actually separated from 
the service, within the meaning of the Civil Service Rules. 

You request my opinion as to whether or not a civil m?83ione?°'?f 
service employee who was suspended for a definite period of ^""igf """"'■ 
time, in accordance with G. L., c. 31, § 43, is thereby 
actually separated from the service. You state that a 
permanent member of the Cambridge fire department was 
suspended under G. L., c. 31, § 43, from November 9, 1925, 
until April 1, 1926, with loss of pay, for the reason that he 
was intoxicated while on duty. The chief of the fire depart- 
ment has now requested his reinstatement, and you desire 
to know whether or not you can properly consider that 
when the fireman was suspended he was separated from the 
service, and therefore, under Civil Service Rule 23, section 
3, you are given a discretion either to allow or to refuse such 
reinstatement. 

G. L., c. 31, § 43, provides, in part, as follows: 

Except as otherwise provided in this chapter, every person holding 
office or employment in the classified public service of the commonwealth, 
or of any county, city or town thereof, shall hold such office or employ- 
ment and shall not be removed therefrom, lowered in rank or compensa- 
tion or suspended, or without his consent transferred from such office or 
employment to any other, except for just cause, and for reasons specifically 
given him in writing within twenty-four hours after such removal, sus- 
pension, transfer or lowering in rank or compensation. 

It is to be noted that this statute uses the words 
"removed ... or suspended," showing clearly that the 
Legislature did not intend the two terms to be synonymous. 
To "suspend" merely means, according to Bouvier, a tem- 
porary stop for a time, and accordingly "suspended" is 
defined as temporarily inactive or inoperative, held in 
abeyance, caused to cease for a time. 



50 OPINIONS OF THE ATTORNEY-GENERAL. 

Civil Service Rule 23, section 3, provides as follows: — 

With the consent of the Commissioner, upon good cause shown, 
an appointing officer may reinstate in the same position or in a position 
in the same class and grade any person who has been separated from the 
service; provided, however, that the Commissioner shall not allow rein- 
statement of a person discharged for cause. 

This expressly refers only to a person who has been 
"separated" from the service. 

In the case under consideration the fireman was not 
suspended indefinitely, but his suspension was expressly 
made from November 9, 1925, until April 1, 1926, with loss of 
pay. Had he been indefinitely suspended, the question 
might present more difficulty ; but in view of the fact that 
his suspension was for a definite period, I am of the opinion 
that he is not actually separated from the service within the 
meaning of the civil service rule above quoted, and that 
therefore you have no discretion either to allow or to refuse 
his reinstatement solely on the ground that he was separated 
from the service. 



jay r. benton, attorney-general. 51 

Constitutional Law — Power of Legislature over 
Charitable Foundations — Enlargement of 
Powers of Charitable Corporations as to the 
Holding of Property — Enlargement of Purposes 
OF Such Corporations. 

There is no constitutional objection, ordinarily, to a statute enlarging the capacity 
of a charitable corporation to hold property. 

A charter granted in 1890 may be altered without the consent of the corporation, 
except as to matters infringing upon the terms of the charitable foundation or 
invading the judicial province with respect to administration cy pres. 

Where the founder of a school which later obtained an act of incorporation, pre- 
scribed with some particularity as to the characteristics of the school, it may 
be observed with respect to a statute purporting to authorize the corporation 
to run a school having additional and different characteristics — 

(a) That as a mere enlargement of the corporate powers, it may be constitutional, 
but that this construction is of questionable soundness; 

(b) That as anything further, authorizing the conducting of a single school in 
such way as to affect materially the characteristics prescribed for the institu- 
tion by the donor, it would be unconstitutional. 

On behalf of the House committee on rules, you have cCmlStt^ron 
asked my opinion relative to the constitutionality, if enacted, ^"'1926 
of a proposed measure amending the charter of the Tabor ^^'^^22. 
Academy, a corporation chartered by St. 1890, c. 153. 
There has been submitted with your request a bill accom- 
panying a "petition of Donald W. Nicholson relative to 
the powers of the corporation known as The Tabor 
Academy," and also what purports to be an alternative 
draft of suggested changes in the charter. I assume that 
you desire my opinion upon both these proposals. There 
has also been provided a copy of the will and codicil of the 
founder. 

Each suggested amendment contemplates an increase 
in the amount of property which may be held by the cor- 
poration to a sum which is apparently left wholly indefi- 
nite and unlimited. Viewing this feature entirely apart 
from the other aspects of the proposals, I perceive no con- 
stitutional objection. The circumstance that such un- 
limited authority is comparatively unusual commends itself 
only to considerations of policy. 

In view of the date at which this institution was incor- 



52 OPINIONS OF THE ATTORNEY-GENERAL. 

porated, there is no objection to be raised under U. S. Const., 
art. I, § 10, to the alteration of its charter, within the limits 
of the proposed amendments by legislative enactment and 
without the consent of the corporation, unless those amend- 
ments infringe upon the provisions made by the donor of 
the charity or invade the exclusive province of the court to 
administer charitable funds cy pres. See VI Op. Atty. 
Gen. 66; Opinion of the Justices, 237 Mass. 613. 

Mrs. Tabor's will manifests an intention to found and 
endow an academy for the education of both sexes, which 
should be available to the young people of her native village 
of Marion Lower Village, reasonably meeting the wants 
"of all classes of the community amid which it is located," 
and which also should gradually enlarge to draw as students 
"youth of all portions of the country who may desire to 
participate in its advantages." To these ends she in- 
vested the trustees, whom she required to procure an act 
of incorporation, with wide discretionary powers. The 
charter, granted in 1890, conforms with fair accuracy to the 
will and codicil. 

The codicil provides that no tuition fee shall be required 
of any of the inhabitants of the town of Marion, "it being 
my will that as to them the advantages of said school shall 
be free to all pupils having the requisite qualifications for 
entering it." One of the principal objects of the proposed 
amendments manifestly is to enable the corporation to hold 
property received by it in the future free of this provision — 
unless otherwise specified by the donors of such future 
property — and thus conduct an institution which will be 
free to inhabitants of the town of Marion only to the extent 
that the present property of the corporation can be said 
to support the privilege. The amendments made by the 
bill which has been submitted are in the following terms: — 

And said corporation is authorized to take and hold any other and 
further estate, real or personal, in addition to the amount stated in 
this section, which may be acquired by said corporation by gift or other- 
wise together with all accumulations of the same and to appropriate 



JAY R. BENTON, ATTORNEY-GENERAL. 53 

the same and the income thereof (1) for purposes of education in con- 
nection with an institution of learning or other educational foundation 
in accordance with all the restrictions imposed upon said property when 
received by said corporation or (2) for the use and benefit of the Tabor 
Academy, or either the boys' or girls' department thereof, when thus 
designated by the donor and any property received by said corporation 
and so designated to be for the use of Tabor Academy, or any department 
thereof, shall be held by said corporation and applied for the benefit of 
said academy, or the specified department thereof, the same to be, unless 
the contrary is declared in the gift, free from any preferences in the will 
of Elizabeth Tabor favoring the town of Marion or its inhabitants. 

The alternative draft of changes is along the same general 
lines but in some respects more drastic. 

I would not wish to say, upon what I have before me, that 
upon the production of proper evidence a case could not 
be made out warranting a court of equity in permitting the 
trustees to do some, if not all, of the things which these 
measures contemplate. That is, however, a judicial 
question, to be decided in a cause to which the Attorney- 
General may well be an active party charged with the 
usual duties pertaining to his office with respect to charitable 
trusts. It seems unwise to anticipate to any great extent 
in this opinion the issues of such a cause. It seems unlikely 
that the trustees, with or without the enactment of these 
amendments, will deem it safe to proceed along such lines 
without obtaining the instructions of a court of competent 
jurisdiction. I therefore indicate my views upon these 
amendments as follows: 

If they can be construed as merely enlarging the corporate 
purposes so as to make the proposed conduct not ultra vires 
of the corporation, they may be constitutional. Grave 
doubt, however, is cast upon the correctness of such a con- 
struction by the circumstance that, as a practical matter, 
it will be difficult, if not impossible, to take steps pursuant 
to such enlarged powers without materially affecting the 
characteristics of the institution which Mrs. Tabor founded 
and which this corporation administers. If they are to be 
construed as purporting fully and directly to authorize 



54 



OPINIONS OF THE ATTORNEY-GENERAL. 



the trustees to act along the lines indicated, it seems to me 
that, upon the whole, they either authorize action which 
might be permitted by a court of equity under the cy pres 
doctrine or else go further and attempt to vary material 
features of the trust in a way which would lie beyond the 
power of the court, and in either event are unconstitutional. 
There is one other possibility, that they can somehow be 
construed as authorizing conduct which is already within 
the general implications of the will and codicil, but in that 
case they are unnecessary. 



Constitutional Law — Power of the Legislature — 
Special Law — Colleges. 

A special law giving to an institution the right to use the word "college" when 
such institution has not the power to confer degrees is in contravention of 
G. L., c. 266, § 89, and unconstitutional under the Fourteenth Amendment 
to the Constitution of the United States. 



To the House 
Committee on 
Education. 

1926 
March 23. 



The committee on education has requested my opinion 
as to the constitutionality of House Bill No. 1224, if enacted, 
and has called my attention specifically to G. L., c. 266, § 89, 
in connection therewith. 

The proposed act is entitled "An Act authorizing the 
Congregation of the Sisters of St. Joseph, of Boston, to 
establish the Regis College for Young Women." 

It is in its nature a special and not a general law. It 
provides that the Congregation of the Sisters of St. Joseph, 
a religious and educational corporation, is authorized to 
conduct and maintain a school for the higher education 
of young women, to be called Regis College for Young 
Women. The directors of the corporation are authorized 
to establish courses in instruction, but they are not em- 
powered to grant degrees. 

G. L., c. 266, § 89, a general law, provides in the last 
sentence thereof as follows: — 



JAY K. BENTON, ATTORNEY-GENERAL. 55 

Any individual, school, association, corporation or institution of 
learning, not having power to confer degrees under a special act of the 
general court, using the designation of "university" 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 hun- 
dred and nineteen, included the word "university" or "college." 

We have no constitutional provision in this Common- 
wealth which prohibits the enactment of special laws 
of the character of the proposed act. It is a principle of 
statutory interpretation that a special law directly in con- 
travention of the provisions of a general law is to be treated 
as creating an exception to the terms of the general law. 
Ackerman v. Green, 201 Mo. 231; Jones v. Broadway Co., 
136 Wis. 595; State v. Johnson, 170 N. C. 685; Jersey City 
V. Hall, 79 N. J. L. 559; Hawkins v. Bare & Carter, 63 W. 
Va. 431. Such a mode of interpretation applied to the 
proposed act would, in my opinion, have the effect of making 
inapplicable to the college authorized therein, or to the 
corporation, the prohibitory and penal provisions of G. L., 
c. 266, § 89, even although the intent of the Legislature in 
this respect is capable of expression in a more definite form. 

The Fourteenth Amendment to the Constitution of the 
United States provides that no State shall "deny to any 
person within its jurisdiction the equal protection of the 
laws." Corporations have been held to be ''persons" 
within the meaning of the amendment, and it is a denial 
of the equal protection of the laws to discriminate in legis- 
lation between corporations of the same class. A denial 
of the equal protection of the laws exists both as to privileges 
conferred and as to liabilities imposed, the effect of privileges 
given to some being the same in relation to others of the 
class as burdens placed upon designated individuals. 

As regards the granting or withholding of charter powers, 
the Legislature may discriminate between corporations 
of the same class as much as it will, but when the effect of 
such discrimination be to grant to a corporation a privilege, 
exception or immunity from the operation of a general law 



56 OPINIONS OF THE ATTORNEY-GENERAL. 

enacted under the police power and applicable to all other 
corporations of the same class, the Legislature is violating 
the constitutional provisions as to equal protection of the 
laws. 

Corporations as to which a reasonable difference exists 
in character or situation may be dealt with differently, 
and the Legislature has broad powers in making classi- 
fications based on such difference for the purpose of providing 
different treatment. There is nothing, however, in the 
proposed act itself which indicates an attempt at reasonable 
classification whereby the particular corporation therein 
referred to should be segregated in a class by itself to receive 
the privilege of exception from a general penal statute 
applicable to all other corporations. If no reasonable 
ground for such classification exists, the constitutionality 
of the proposed bill, if enacted, could not be sustained. 

The Legislature could relieve the corporation in question 
from the prohibitions of chapter 266 by giving to it in the 
act the power to confer degrees, but I am of the opinion 
that without the grant of such power the instant bill, if 
enacted, would violate the constitutional provisions of the 
Fourteenth Amendment. 



License for the Sale of Gasoline — Public Ways — 

Curb Pumps. 

a curb pump is a structure used for the sale of gasoline, and its use must be licensed 

under St. 1925. c. 335. 
A license issued by the street commissioners of the city of Boston permitting the 

use of part of a public street for the storage and sale of merchandise is distinct 

from the license required by St. 1925, c. 335, and the issuing of one does not 

preclude the necessity of obtaining the other. 

To the Com- Yqu ask my advice on questions regarding the power of 

missioner of '' '■ o o r- 

^"i926^*^''*^' ^^6 State Fire Marshal, or persons designated by him, to 
license the use of curb pumps for the storage or sale of 
gasoline within the lines of public ways. 

You ask whether a curb pump is subject to the restrictions 



March 26. 



JAY R. BENTON, ATTORNEY-GENERAL. 57 

of St. 1925, c. 335, amending G. L., c. 148, § 14, as a "build- 
ing or other structure . . . used for the keeping, storage, 
manufacture or sale" of gasoline if the only gasoline con- 
tained in it is that which may remain in the pipes of the 
pump when not in operation or such as flows through the 
pipes in delivery of gasoline to a purchaser. The word 
"structure" is defined broadly as any production or piece 
of work artificially built up, or composed of parts joined 
together in some definite manner. Century Dictionary. 
Stevens v. Stanton Construction Co., 153 App. Div. 82; 
Nash V. Commonwealth, 174 Mass. 335. While such a 
pump may not be used, strictly speaking, for the keeping 
or storage of gasoline, it seems clearly to be used for the sale 
of gasoline, and therefore, in my opinion, its use must be 
licensed under St. 1925, c. 335. 

You ask whether a person holding a license issued to him 
by the street commissioners of the city of Boston under 
St. 1907, c. 584, to use duly specified parts of a public street 
in that city for the storage and sale of merchandise, including 
gasoline, may lawfully store or sell gasoline in or from ap- 
pliances or structures suitable for such storage or sale within 
such specified spaces without a license or permit therefor 
under the provisions of St. 1925, c. 335. The Attorney- 
General has heretofore on several occasions pointed out that 
the requirement of a license for the erection and maintenance 
of a garage and the requirement of a license for the storage 
of gasoline are separate and distinct, and that the issuing 
of one does not preclude the necessity of obtaining the 
other. V Op. Atty. Gen. 718; VI Op. Atty. Gen. 329, 580. 
See also Foss v. Wexler, 242 Mass. 277. For the same reasons 
the license required by St. 1907, c. 584, is distinct from the 
license required by St. 1925, c. 335. My answer to this 
question is therefore in the negative. 

The answer just given largely disposes of your remaining 
question: whether the Fire Marshal, or persons designated 
by him, may lawfully issue a license or permit to the owner 
of the soil underlying a public way for the use within the 



58 OPINIONS OF THE ATTORNEY-GENERAL. 

limits of such way of a curb pump for the storage or sale 
of gasoline. Such a license may properly be granted, but it 
will not authorize the obstruction of the way or obviate the 
necessity of obtaining a license under St. 1907, c. 584, for 
the use of parts of public streets in the city of Boston for 
the storage and sale of merchandise. Cf. Commonwealth 
V. Packard, 185 Mass. 64, 67; VII Op. Atty. Gen. 293. 



Regulation of Traffic by Cities and Towns — Ap- 
proval BY Registrar of Motor Vehicles. 

A regulation of a city providing that no vehicle should go upon certain streets 
between 8 a.m. and 2.30 p.m. when public schools are in session does not require 
the approval of the Registrar of Motor Vehicles, under the provisions of G. L., 
c. 90. § 18. 

mi'ssione?°'^f ^oVi ask my opinion arising out of the following situation. 

Puwicworks. j^ appears that the board of aldermen of the city of 

March^26. Ncwtou receutly made a regulation providing that no vehicle 

of any description should go upon certain streets in that 

city between 8 a.m. and 2.30 p.m. on any day that the public 

schools of said city are in session. 

Thereafter, this regulation was submitted to a deputy 
registrar of motor vehicles for certification in writing, after 
a public hearing, that this regulation was consistent with the 
public interests. The deputy, apparently thinking .that the 
provisions of G. L., c. 90, § 18, apphed to the making of this 
regulation, gave his approval. 

From this decision a citizen of Newton has appealed to 
the Division of Highways for an annulment of this decision, 
under G. L., c. 90, § 28. 

You ask my opinion as to whether or not it was necessary, 
before this regulation excluding all vehicles from a certain 
street in Newton should become effective, to obtain the 
certificate of the Registrar of Motor Vehicles, in writing, 
after a public hearing, that the regulation was consistent 
with the public interests. 



JAY R. BENTON, ATTORNEY-GENERAL. 59 

It appears that you have on file in your department an 
opinion of the Attorney-General which answers the question 
raised by you. IV Op. Atty. Gen. 7. 

I also call your attention to the case of Commonwealth v. 
Newhall, 205 Mass. 344, in which, in an exhaustive opinion, 
Mr. Justice Hammond reviews the statutes regarding the 
operation of automobiles in this Commonwealth and their 
relation to other statutes that have to do with the regulation 
of street traffic regulations and rules for driving in general. 

Soon after the general appearance of automobiles upon 
the pubhc ways of the Commonwealth it became apparent 
that, by reason of their great speed, danger was likely to 
arise, and the Legislature began to act. The first statute 
is found in St. 1902, c. 315. In 1908, the Legislature, 
thinking that the laws as to automobiles and motor cycles 
should be codified, directed the Highway Commission, with 
the assistance of the Attorney-General, to perform the work 
and report to the then next Legislature. Res. 1908, c. 127. 
The resolve called for a complete consolidation and arrange- 
ment of the laws of the Commonwealth relating to auto- 
mobiles and motor cycles, so that the same might be concise, 
plain and intelligible. This commission made its report 
to the Legislature of 1909, and thereafter St. 1909, c. 534, 
was passed. Section 17 of that chapter was practically 
the same as it now appears in G. L., c. 90, § 18. The 
present law, so far as is pertinent to your inquiry, reads as 
follows: — 

The city council . . . , on ways within their control, may make 
special regulations as to the speed of motor vehicles and as to the use of 
such vehicles upon particular ways, and may prohibit the use of such 
vehicles altogether on certain ways; provided, that no such special 
regulation shall be effective . . . until after the registrar shall have 
certified in writing, after a public hearing, that such regulation is con- 
sistent with the public interests; . . . 

The original law, as passed in 1909, was exactly the same, 
except that the words "the Massachusetts highway com- 
mission" appeared in place of the word "registrar." 



60 OPINIONS OF THE ATTORNEY-GENERAL. 

Mr. Justice Hammond, in his opinion, points out that 
there existed, not only this new codification of the law, 
which related specifically to the regulation of automobiles 
and motor cycles, but also various statutes which authorized 
the municipal authorities to pass ordinances, by laws 
and regulations relative to street traffic or to the movement, 
stopping and standing of all vehicles. These two groups 
of statutes are separate and distinct. 

In the opinion of the Attorney-General already referred 
to (IV Op. Atty. Gen. 7), the facts were practically the same 
as those presented at this time. The city of Lawrence 
passed an ordinance regulating the use of streets and high- 
ways in that city, and it related to vehicles of all kinds. 
The city authorities then referred the matter to the High- 
way Commission, and the question arose as to whether or 
not the approval of the Commission was required by St. 
1909, c. 534, § 17 (now G. L., c. 90, § 18). In conclusion, 
the Attorney-General ruled as follows : — 

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

I concur in this finding, and therefore advise you that the 
approval of the Registrar was not necessary to make the 
Newton regulation effective, and that the pending appeal 
is not properly before you. 



jay r. benton, attorney-general. 61 

Constitutional Law — Impairment of Contract — 
Boston Consolidated Gas Company. 

Changes in the purpose and object of a corporation or in its capital stock cannot 
be made without the express or implied consent of the stockholders. 

A bill which proposes merely to repeal provisions of an earlier statute fixing a maxi- 
mum limit as to the price to be charged for gas and the rate of dividends, if 
enacted, would be constitutional. 



You have referred to me for examination and report J,''^^^^ , 
House Bill No. 493, entitled "An Act repealing a certain aItiA. 
act regulating the price of gas in the city of Boston and 
certain neighboring municipalities." Section 1 repeals 
St. 1906, c. 422, and provides that the Boston Consolidated 
Gas Company shall thereafter be subject to the provisions 
of the general law as to all matters theretofore regulated by 
that chapter. Section 2 provides that the act shall not take 
effect unless and until its provisions are accepted by vote 
of the board of directors of that corporation and an attested 
copy of such vote is filed with the State Secretary. 

The Boston Consolidated Gas Company was organized 
in accordance with St. 1903, c. 417, providing for the con- 
solidation of certain existing gas companies through the 
incorporation of the Boston Consolidated Gas Company, 
which was authorized to acquire their properties and stock. 
The provisions of this act were accepted by the incorporators, 
and the corporation was organized under date of December 
10, 1903. By St. 1905, c. 421, the act of 1903 was amended, 
and the Boston Consolidated Gas Company was further 
required to file with the Board of Gas and Electric Light 
Commissioners an agreement to reduce the maximum price 
of gas to be charged by it to ninety cents per thousand 
cubic feet. 

St. 1906, c. 422, fixed the standard price to be charged by 
the Boston Consolidated Gas Company for gas supplied 
to its customers at ninety cents per thousand feet and the 
standard rate of dividends to be paid by the company to 
its stockholders at seven per cent per annum,[and provided 
that the price and rate so fixed should not be increased 



62 OPINIONS OF THE ATTORNEY-GENERAL. 

except as therein provided. The act further provided that 
if during any year the maximum net price was less than the 
standard price, the company might during the following 
year pay dividends exceeding the standard rate, in a specified 
ratio. At the end of ten years it was provided that the 
Board of Gas and Electric Light Commissioners should 
have authority, upon the petition of the company or of city 
or town officials, to lower or raise the standard price to such 
extent as might justly be required. The act was to be void 
unless the corporation should accept its provisions by 
authority of its board of directors. I understand that this 
act was duly accepted by the board of directors. 

G. L., c. 164, §§93 and 94, authorize the Department of 
Public Utilities, upon complaint of city or town officials 
or customers or upon petition of a gas company, and after 
public hearing, to fix the price of gas. 

For the purposes of this discussion it may be assumed that 
the act of 1906 constituted a contract between the corpo- 
ration and the Commonwealth in regard to the price of gas 
and the rate to be paid on its stock. Boston v. Treasurer 
and Receiver General, 237 Mass. 403, 413; New Orleans Gas 
Co. V. Louisiana Light Co., 115 U. S. 650, 660-673; Detroit 
V. Detroit Citizens' St. Ry. Co., 184 U. S. 368, 382; Min- 
neapolis V. Minneapolis St. Ry. Co., 215 U. S. 417, 426, 430, 
431; II Op. Atty. Gen. 261; III Op. Atty. Gen. 400; VII 
Op. Atty. Gen. 331. If the nature of the contract was such 
that the directors alone, without ratification by the stock- 
holders, could not bind the corporation to comply with its 
terms {Nashua R. R. v. Lowell R. R., 136 U. S. 356, 384), 
the contract at any rate became valid by subsequent acqui- 
escence. Blandford v. Gibbs, 2 Cush. 39. 

With respect to the bill which you have referred to me 
there may be a possible question whether it constitutes an 
attempt to abrogate a contract involving rights of the stock- 
holders of the corporation, which the directors would not 
have power to approve, and which therefore, in order 
to be valid, must be approved by the stockholders. The rule 



JAY R. BENTON, ATTORNEY-GENERAL. 63 

has been stated to be that "changes in the purpose and object 
of an association, or in the extent of its constituency or 
membership, involving the amount of its capital stock, are 
necessarily fundamental in their character, and cannot, 
on general principles, be made without the express or implied 
consent of the members," i.e., the stockholders of the 
corporation. Railway Co. v. Allerton, 18 Wall. 233, 235. 
Acts of such nature are beyond the power of the directors 
alone. Nashua R. R. v. Lowell R. R., 136 U. S. 356, 384; 
Commercial National Bank v. Weinhard, 192 U. S. 243, 249; 
VI Op. Atty. Gen. 396. The act before me, however, 
proposes merely to repeal provisions of the earlier statute, 
which, in so far as they fix the maximum limit of the price 
of gas and of the rate of dividends, were a burden on the 
corporation, and which, in so far as they conferred a possible 
benefit by permitting the corporation to petition the Board of 
Gas and Electric Light Commissioners to raise the standard 
price of gas, are contained in the general laws, to which by 
the proposed act the corporation is made subject. To agree 
to provisions of that kind must be clearly within the power 
of the directors. 

It is my opinion, therefore, that the bill, if enacted, will 
be constitutional. 



64 opinions of the attorney-general. 

Constitutional Law — Mass. Const. Amend. LXVI — 
Massachusetts Agricultural College. 

The intention of Mass. Const. Amend. LXVI was to systematize the administration 
of the State's business by placing the activities in not more than twenty de- 
partments, and to give the General Court full power to work out the scheme of 
organization. 

A bill amending G. L., c. 15, § 4, by adding a provision that "nothing in this chapter 
shall be construed as affecting the powers and duties of the trustees of the 
Massachusetts Agricultural College as set forth in chapter seventy-five," is 
not in conflict with the terms of Mass. Const. Amend. LXVI, properly inter- 
preted. 

m^tteJ" S""' Yo^ have asked my opinion as to the constitutionality, 
m'in^istr^uo'n. 1^ view of Mass. Const. Amend. LXVI, of a proposed act 
Ai^rffa. amending G. L., c. 15, § 4, defining certain of the powers 

and duties of the Commissioner of Education. The pro- 
posed act is as follows: — 

Nothing in this chapter shall be construed as affecting the powers 
and duties of the trustees of the Massachusetts Agricultural College 
as set forth in chapter seventy-five. 

Chapter 15 relates to the Department of Education, and 
chapter 75 relates to the Massachusetts Agricultural College. 
Mass. Const. Amend. LXVI is as follows: — 

On or before January first, nineteen hundred twenty-one, the execu- 
tive and administrative work of the commonwealth shall be organized 
in not more than twenty departments, in one of which every executive 
and administrative office, board and commission, except those officers 
serving directly under the governor or the council, shall be placed. Such 
departments shall be under such supervision and regulation as the general 
court may from time to time prescribe by law. 

This provision contains three requirements. The first 
relates to the process of organizing the executive and ad- 
ministrative work of the Commonwealth, which was to be 
done by establishing not more than twenty departments 
and which had to be completed by January 1, 1921. The 
second requirement is that every executive and adminis- 
trative office, board and commission, except officers serving 



JAY R. BENTON, ATTORNEY-GENERAL. 65 

directly under the Governor or the Governor and Council, 
must be placed in some one of those departments. The 
third requirement is that those departments shall be subject 
to the supervision and regulation of the General Court 
through its legislative acts. 

In discovering the meaning of a constitutional provision 
adopted in convention, the proper interpretation of which 
is in doubt, the debates in the convention on the adoption 
of the provision may be an important source of information, 
and the record of such debates may properly be examined 
for the purpose of understanding how it came into existence 
and how it appears then to have been received and under- 
stood by the convention. Loving v. Young, 239 Mass. 349, 
368. An examination of the debate in the convention on 
the subject of the sixty-sixth amendment will afTord some 
illumination as to the understanding of the convention 
concerning the object to be accomplished by that amend- 
ment. 

The committee having in charge the administration of 
the State's business reported a resolution for the adoption 
of an amendment in three sections, as follows : — 

1. The executive branch of the government of the Commonwealth 
shall include all executive and administrative functions, offices, boards 
and commissions. The appointment of executive or administrative offi- 
cers shall be classed as an executive function. The executive and adminis- 
trative work of the Commonwealth shall be organized in not less than 
seven nor more than fifteen executive departments as herein provided. 
Every executive and administrative office, board and commission now 
or hereafter established, excepting the Civil Service Commission and 
offices coming directly under the Governor or the Council, shall be 
placed in one of such departments. 

2. The Governor shall recommend to the General Court for the year 
nineteen hundred and nineteen, a plan for organizing such departments 
in accordance herewith; such plan may include the abolition or con- 
solidation of any such offices, boards or commissions, except constitu- 
tional offices, or any changes in the powers or duties thereof, and shall 
include the establishment of an office, board or commission as the head 
of each department, with such powers as the General Court may provide. 
Such head, unless his election is provided for by the Constitution, shall 



66 OPINIONS OF THE ATTORNEY-GENERAL. 

be appointed by the Governor with the consent of the Council, and shall 
be removable in such manner as may be provided by law. The General 
Court shall thereupon provide by law for organization of the executive 
departments in any manner consistent with the provisions hereof: pro- 
vided, that if the General Court fails to pass such a law at its first session 
after the adoption of this amendment an organization in conformity 
herewith shall be established by an order passed by the Governor and 
Council, which shall have the effect of law. The organization of depart- 
ments hereunder may from time to time be changed by law. 

3. Heads of such executive departments shall upon request made 
to the Governor by either branch of the General Court attend such 
branch in person and furnish information on departmental matters 
as requested, unless the Governor shall state in writing that he deems 
it incompatible with the public interest that such information be given. 
(Ill Debates in the Constitutional Convention, p. 1021.) 

In explaining the proposed amendment it was stated that 
the committee intended to leave to the General Court the de- 
termination of the powers of heads of departments, whether 
they should be responsible for the finances of the department 
and whether they should have general supervision over it, 
and that the General Court might want to make one provi- 
sion for one department and another for another, particu- 
larly where there were quasi judicial powers to be exercised. 
It was stated as the opinion of the committee that all the 
details of the plan should rest with the General Court. It 
was further stated that the object was simply to prohibit 
in the Constitution the countless establishment of various 
commissions. The primary purpose was said to be to reduce 
the number of commissions, to provide for their supervision 
and regulation, to put a constitutional limit on the number 
of departments, and to systematize the business of the 
Commonwealth. Ill Debates, pp. 1029, 1086, 1099-1105. 
There was much discussion of the matter and a great di- 
versity of opinions. Several amendments were offered, 
including one to strike out the second and third sections. 
The amendments were all rejected and then the resolution 
itself was rejected by the convention. On the following 
day the convention voted to reconsider, and a substitute 



JAY R. BENTON, ATTORNEY-GENERAL. 67 

resolution containing the substance of section 1 was pro- 
posed and passed. Ill Debates, pp. 1095, 1102, 1103, 1106. 
Following the ratification of this amendment by the people 
in 1918, the Legislature of 1919, in compliance with its 
mandate, passed an act entitled ''An Act to organize in 
departments the executive and administrative functions 
of the Commonwealth." Gen. St. 1919, c. 350. By section 
1 of this statute fifteen new departments were established, 
together with the Metropolitan District Commission, and 
it was provided that "all executive and administrative 
offices, boards, commissions and other governmental organ- 
izations and agencies, except those now or by virtue of this 
act serving directly under the governor or the governor 
and council, are hereby placed in the said departments and 
said commission, as hereinafter provided." It was provided 
in section 8 that reports required by law to be made by 
agencies affected by the act should be made by the head of 
the department in which the agency was placed. In part 
III the executive and administrative departments, including 
these new departments, were dealt with in turn, some ex- 
isting offices, boards and commissions were abolished, 
and some were placed in one or another of the departments, 
with differing provisions as to their relations and their 
control in the departments. Some of the departments 
were placed in charge of a commissioner and some in charge 
of a board of commissioners. In some an advisory board 
was provided and in many the work of the department was 
subdivided into different divisions. The Department of 
Banking and Insurance was organized with three separate 
divisions, each in charge of an independent commissioner, 
and the Department of Civil Service and Registration was 
placed in charge of two independent officers. Many sub- 
ordinate activities were incorporated in the different depart- 
ments, with explicit provision for their supervision. As 
to others, the only provision was that they were placed in 
some department. Such was the provision regarding the 
trustees of the Massachusetts Agricultural College. Section 



68 OPINIONS OF THE ATTORNEY-GENERAL. 

56 provided that they and other boards and commissions 
"are hereby placed in and shall hereafter serve in the said 
department (of education)." Sections 57 and 58 (now G. L., 
c. 15, §§ 1 and 4) defined the powers and duties of the com- 
missioner under whose supervision and control the depart- 
ment was placed. By section 60 (now G. L., c. 15, § 5) it 
was provided that the cormnissioner might also appoint 
agents, clerks and other assistants, with certain exceptions 
which in the consolidation of the provision in the General 
Laws were made to include the institutions under the 
department. 

A strict construction of Mass. Const. Amend. LXVI 
would be satisfied by a mere grouping of the various govern- 
mental agencies under departmental titles. While doubtless 
the amendment is not to be construed so narrowly, in my 
opinion it was not intended by its adoption to provide that 
all agencies combined in the different departments should 
necessarily lose their independence and be subject to the 
supervision of the heads of those departments. The in- 
tention, as I conceive it, was to systematize the adminis- 
stration of the State's business by placing the activities 
in a limited number of departments, and to give the General 
Court full power to work out the scheme of organization. 
This view is borne out, it seems to me, both by the debates 
in the convention and by the action of the Legislature in 
fulfilling the constitutional mandate, which may properly 
be regarded as "contemporaneous and weighty evidence 
of its true meaning." Wisconsin v. Pelican Insurance Co., 
127 U. S. 265, 297. See also Mass. Law Quarterly, vol. 
IV, p. 366; Report of Commission on State Administration 
and Expenditures, 1922, House Document No. 800. 

The Massachusetts Agricultural College was made a State 
institution by Gen. St. 1918, c. 262, and the trustees of the 
corporation were made the trustees of the State institution 
with the powers and duties which they had before held. 
In the consolidation of the laws this act was carried over 
into G. L., c. 75, which contains provisions empowering 



JAY R. BENTON, ATTORNEY-GENERAL. 69 

the trustees to manage and administer the college and its 
property, and provides that they shall direct expenditures 
and make a complete accounting of receipts and expendi- 
tures. 

As I have stated, Gen. St. 1919, c. 350, pt. Ill, § 56, 
provided that the trustees of the Massachusetts Agricultural 
College, with other boards and commissions, should be 
placed and should serve in the Department of Education. 
Section 57 provided that the department should be under 
the supervision and control of the Commissioner of Edu- 
cation and the Advisory Board, and section 58 provided 
that the Commissioner should be the executive and ad- 
ministrative head of the department (G. L., c. 15, §§ 1, 4). 
These latter provisions may present a seeming inconsistency 
with the provisions of G. L., c. 75, conferring on the trustees 
the power to manage the college. If so, the difficulty would 
be solved by the passage of the proposed legislation. In 
my opinion, the provisions of the bill as to which you have 
asked my advice are not in conflict with the terms of Mass. 
Const. Amend. LXVI as it should properly be interpreted, 
and the bill, if enacted, would be constitutional. 



Initiative and Referendum — Additional Information 
TO Voters as to Measures submitted. 

The Legislature has authority to provide that the Attorney-General shall prepare 
for the Secretary of the Commonwealth a brief statement of information on 
measures submitted to the people under the initiative and referendum. 

You have requested me to consider House Bill No. 1178, Tothe 

'■ ... Governor. 

entitled "An Act relative to supplying additional informa- j^^^^f^ 
tion to voters as to measures submitted under the initiative 
and referendum." 

This bill amends G. L., c. 54, § 53, which section provides 
that the election commissioners and registrars of voters, 
within a certain specified time before the biennial State 
elections, shall send to the Secretary of the Commonwealth 



70 OPINIONS OF THE ATTORNEY-GENERAL. 

revised mailing lists of voters, and the Secretary shall send 
to each voter, with copies of the measures, arguments for 
and against measures to be submitted under Mass. Const. 
Amend. XLVIII, which amendment refers to the initiative 
and referendum. The amendment proposed under the act 
which is being considered provides that the Attorney- 
General shall prepare brief statements of the proposed 
measures. 

Mass. Const. Amend. XLVIII, General Provisions, pt. 
IV, provides that the Secretary of the Commonwealth shall 
cause to be printed and sent to each registered voter the 
full text of every measure to be submitted to the people, 
''and shall, in such manner as may be provided by law, 
cause to be prepared and sent to the voters other informa- 
tion and arguments for and against the measures." 

In G. L., c. 12, § 9, it is provided that "he (the Attorney- 
General) shall, when required by either branch of the gen- 
eral court, attend during its sessions and give his aid and 
advice in the arrangement and preparation of legislative 
documents and business.^' 

The only question for consideration, therefore, is: Has 
the Legislature the right to add new duties to the already 
many duties of the Attorney-General? 

In Commonwealth v. Kozlowsky, 238 Mass. 379, 386, the 
court said : — 

Its (Attorney-General's) powers and duties continued as a part of the 
common law of the Commonwealth save as changes have been made by 
the General Court and ij). the customs of the Commonwealth. ... It 
often has been recognized that the powers of the Attorney-General are 
not circumscribed by any statute, but that he is clothed with certain 
common law faculties appurtenant to the office. 

It is evident that in the act under consideration the 
Attorney-General's duties are not circumscribed but are 
added to. The Attorney-General has often by acts of the 
Legislature served as a member of a board or commission, 
and has been requested to perform certain acts and duties 
by the Legislature. It is apparent from the decisions that 



JAY R. BENTON, ATTORNEY-GENERAL. 71 

the Legislature has the right to add to the specific duties of 
the Attorney-General. It is evident that it is proper for 
the Legislature to make provision so that the voters shall 
receive desired information on all measures that go on the 
ballot. 

Therefore, in my opinion, the proposed bill, if enacted, 
would be constitutional. 



Constitutional Law — Power of the Legislature — 
Payment to One who stood in Loco Parentis to a 
Deceased Soldier. 

The Legislature may not lawfuly authorize the payment of a sum of money to 
one who stood in loco parentis to a deceased soldier when it cannot be said that 
the Legislature, in the exercise of a reasonable judgment, could have deter- 
mined that the payment was for the purpose of discharging a moral obligation 
on the part of the Commonwealth. 

You have submitted to me for examination and report ^othe 

'^ Governor. 

House Bill No. 906, entitled "Resolve in favor of Mary ^^p^f^ 
Leahan of Boston." 

The object of this resolve is to pay the sum of 1100 to a 
woman, after an appropriation has been made, for the pur- 
pose, as the bill recites, of discharging the moral obligation 
of the Commonwealth. The resolve sets forth the essential 
facts which the Legislature has deemed to constitute the 
moral obligation, namely, that the beneficiary supported 
and educated one Edward H. Leahan, who died in the 
military service October 4, 1918. The relationship, if any, 
between the beneficiary and the deceased is not recited, 
but the payment is stated to be in lieu of the State bonus 
on account of the deceased's military service, to which the 
beneficiary would have been entitled had she legally adopted 
the deceased. The precise character of the deceased's 
military service is not set forth, but it may be presumed that 
it was of such a character as to have entitled him to the 
benefit of the bonus under Gen. St. 1919, c. 283, as amended. 



72 OPINIONS OF THE ATTORNEY-GENERAL. 

It may likewise be assumed that the beneficiary stood in loco 
parentis to the deceased during his Hfe. 

Under those principles of constitutional law which vali- 
date the original soldiers' bonus act it would not have been 
unreasonable for the Legislature to have included in such 
act, among those persons who were to be entitled to the 
bonus upon a soldier's death, persons who had in fact occu- 
pied the position and discharged the duties of a parent to 
the soldier, and it cannot be said that it is now unreasonable 
for the Legislature to say that there is a moral obligation 
upon the part of the Commonwealth to pay such bonus 
to such a person after the soldier's death, if he left no de- 
pendent nor heir at law. 

It does not, however, appear by the terms of the instant 
resolve that the deceased soldier left none of the dependent 
relatives who, by the provisions of Gen. St. 1919, c. 283, 
§ 3, are entitled to the amount of the bonus, nor does it 
appear that he left no heirs at law who by the terms of the 
said act are entitled to the amount of the unpaid bonus when 
the soldier dies without such dependents. In the absence 
of a statement of facts relative to the non-existence of such 
dependents and heirs at law, it cannot be said that the pro- 
nouncement of the Legislature as to the existence of a moral 
obligation on the part of the Commonwealth, in this par- 
ticular instance, is a reasonable one. 

If any such dependents or heirs at law are living, they 
have a valid legal claim against the Commonwealth for the 
amount of the bonus. If a payment were made under the 
instant resolve to the named beneficiary, unless the intent 
of the bill be to prevent any further payments, and then, 
if one or more of the persons entitled by existing law to a 
like amount were to present a claim, it would have to be 
honored, and, together with the sum disbursed by virtue of 
the instant resolve, it would make the payment a total 
amount of $200 as bonuses for the military service of this 
particular soldier, as against $100 in all cases following the 
terms of the original act. Gen. St. 1919, c. 283, as amended, 



JAY R. BENTON, ATTORNEY-GENERAL. 73 

is a law of general application. To vary the beneficiaries 
under such a law by special legislation, such as the instant 
bill, so as to cut off those otherwise entitled, by paying the 
bonus of $100 to a person outside the classes mentioned in 
the general act and to no other, if that be the meaning of 
the instant bill, would work such a denial of the equal pro- 
tection of the laws required by the Fourteenth Amendment 
to the United States Constitution as to be manifestly un- 
constitutional. The same result — unequal protection of 
the laws — is produced under either mode of interpreting 
the legislative will as to the aggregate amount to be paid 
out. No moral obligation can reasonably be said to exist 
in such a situation. Since the recitals of the resolve do 
not indicate that a pronouncement of the existence of a moral 
obligation on the part of the Commonwealth toward this 
beneficiary or to any other person can reasonably be made, 
the payment would appear to be in the nature of a gratuity 
such as may not be given from the public treasury, and I 
am constrained to express the opinion that the instant 
resolve, if enacted, would not be constitutional. 



City of Boston — Highways — Boulevard Stop 
Regulation. 

A regulation of the street commissioners of the city of Boston requiring every 
vehicle and street car, except emergency vehicles, to be brought to a full and 
complete stop before entering or crossing certain streets is not inconsistent 
with G. L., c. 89, § 8, regarding right of way at an intersecting way. 

You have called my attention to an opinion rendered Toti.ePoiice 

-' f ^ Commissionei 

you on February 10, 1926 (VIII Op. Atty. Gen. 18), rela- iJ|r°°- 
tive to the so-called boulevard stop regulation for highways ■'^]^^- 
in Boston, and enclosed a copy of the proposed regulation, 
which is as follows: — 

Every vehicle and street car except emergency vehicles shall be brought 
to a full and complete stop before entering or crossing these streets, pro- 
vided, however, that when the intersection is controlled by a police 



74 OPINIONS OF THE ATTORNEY-GENERAL. 

officer or by a signalling device, all vehicles shall comply with orders or 
directions of such officer or device. 

You ask whether, in my opinion, this regulation is in- 
consistent with G. L., c. 89, § 8, which provides as follows: — 

Every driver of a motor or other vehicle approaching an intersecting 
way, as defined in section one of chapter ninety, shall grant the right of 
way, at the point of intersection to vehicles approaching from his right, 
provided that such vehicles are arriving at the point of intersection at 
approximately the same instant; except that whenever traffic officers 
are standing at such intersection they shall have the right to regulate 
traffic thereat. 

In my opinion, the regulation is not inconsistent with the 
statute. The requirement that vehicles shall be brought to 
a full and complete stop before entering or crossing a boule- 
vard may be enforced without diminishing the effect of the 
statutory requirement, which would still be applicable to 
vehicles traveling on boulevards, that they shall grant the 
right of way at cross streets to vehicles approaching from 
the right. 



jay r. benton, attorney-general. 75 

Constitutional Law — Impairment of Contract — 
Boston Elevated Railway Company. 

It is the duty of the Attorney-General to deal with questions of law only, and it is 
not within his province to determine questions of fact. 

The duty of the Attorney-General to advise a committee of the Legislature is limited 
by statute to the consideration of the legal effect of proposed legislation pend- 
ing before such committee. 

The requirement in St. 1923, c. 480, § 2, that reasonable and adequate passenger 
service over a certain branch shall be furnished by the Boston Elevated Rail- 
way Company cannot be construed as diminishing the right of the trustees 
to determine the character and extent of the service to be furnished, under 
Spec. St. 1918, c. 159, § 2. 

A bill requiring the Boston Elevated Railway Company to construct a street rail- 
way station would violate the provisions of Spec. St. 1918, c. 159, and would 
impair the obligation of the contract executed under St. 1923, c. 480, § 5, 
and for both reasons would be unconstitutional. 

You have called to my attention certain provisions of comm1u°is''on 
St. 1923, c. 480, providing for the extension of rapid transit iffSnd^" 
facilities in the Dorchester district of Boston, and House way.f ^^'"'" 
Bill No. 251, purporting to amend that statute by provid- aphis. 
ing for a station at or near Harrison Square, and you have 
propounded certain questions concerning the existence of 
an obligation to furnish such a station. 

The scope of your questions requires me to state that it 
is the duty of the Attorney-General to deal with questions 
of law only, and that it is not within his province to deter- 
mine questions of fact (I Op. Atty. Gen. 275 and 462; II 
Op. Atty. Gen. 153 and 405); and furthermore, that the 
duty of the Attorney-General to advise a committee of the 
Legislature is limited by statute to the consideration of the 
legal effect of proposed legislation pending before such 
committee. G. L., c. 12, § 9; III Op. Atty. Gen. Ill; 
VI Op. Atty. Gen. 147; c/. Opinion of the Justices, 148 Mass. 
623; ihid., 208 Mass. 614; ibid., 217 Mass. 607. 

Spec. St. 1918, c. 159, § 2, provides, in part: — 

They (the board of trustees) shall have the right to regulate and 
fix fares, including the issue, granting and withdrawal of transfers, and 
the imposition of charges therefor, and shall determine the character and 
extent of the service and facilities to be furnished, and in these respects their 



76 OPINIONS OF THE ATTORNEY-GENERAL. 

authority shall be exclusive and shall not be subject to the approval, 
control or direction of any other state board or commission. 

St. 1923, c. 480, contains the following provisions: — 

Section 2 requires the transit department of the city of 
Boston to extend the Dorchester tunnel, bringing the tunnel 
to the surface on the westerly side of the tracks of the New 
York, New Haven and Hartford Railroad Company at a 
point between Dorchester Avenue and Columbia Road, and 
to construct a line of surface railway parallel to the location 
of the railroad tracks to the Harrison Square station, and 
from that point along the location of the Shawmut branch 
to Mattapan. The department is also required to "lay out 
and construct suitable areas, enclosed or otherwise, stations 
and shelters at or near Columbia road. Savin Hill avenue 
and at such other points as may be agreed upon between the 
company (Boston Elevated Railway Company) and the 
department." After the completion of the line of surface 
railway, it is provided that "thereupon reasonable and 
adequate passenger service over said Shawmut branch shall 
be furnished by the lessee of the premises." 

Section 4 requires the department to prepare and file a 
plan showing the proposed route, with stations, etc., and 
provides that after the execution of the contract with the 
company, referred to in section 5, no changes shall be made 
without the written consent of the company. 

Section 5 authorizes the department to execute a contract 
with the company, upon the terms and conditions prescribed 
therein, for the use of the premises and equipment by the 
company, for a term extending to the termination of the 
present lease of the Dorchester tunnel, at a rental of 43/2 
per cent on the fair and reasonable cost of the premises 
and equipment as determined by the Department of Public 
Utilities, with a certain proviso. 

Section 14 provides that the provisions of the act, except 
section 4, shall take effect upon its acceptance by the city 
and by the company by vote of its Board of Directors. 



JAY R. BENTON, ATTORNEY-GENERAL. 77 

On several different occasions the Attorney-General has 
ruled that the provisions of Spec. St. 1918, c. 159, quoted 
above, constitute a contract between the company and the 
Commonwealth. VI Op. Atty. Gen. 396; VII Op. Atty. 
Gen. 11, and 331. 

The obligations of the company imder St. 1923, c. 480, 
in my opinion, are enlarged only and are governed by the 
contract authorized by section 5, which I understand has 
now been executed. Provision was made in section 14 
for acceptance of the act by the directors because of the 
provision in Spec. St. 1918, c. 159, § 3, that- no contracts for 
the operation or lease of additional lines involving the pay- 
ment of rental beyond the period of pubhc control should 
be made without their consent. The requirement in sec- 
tion 2 that "thereupon reasonable and adequate passenger 
service over said Shawmut branch shall be furnished by 
the lessee of the premises," cannot be construed as diminish- 
ing the right of the trustees to "determine the character 
and extent of the service and facilities to be furnished," 
granted by Spec. St. 1918, c. 159, § 2. I am informed that 
no station at or near Harrison Square was agreed upon be- 
tween the company and the department, that the plan filed 
by the department did not show the location of a proposed 
station at that point, that the company has not consented 
to such a change in the plan, and that the Department of 
Pubhc Utilities has determined the fair and reasonable 
cost of the premises and equipment without including 
therein the cost of such station. 

You ask whether House Bill No. 251, if enacted into law, 
would require the construction and maintenance of a street 
railway station at Harrison Square. Such seems to be the 
purport of the provisions of this bill. It is my opinion, 
however, that in that respect the bill is unconstitutional, 
both because it violates the provisions of Spec. St. 1918, 
c. 159, giving to the trustees the right to determine the 
character and extent of the service facihty to be furnished, 
and the provisions giving to the directors a right to pass on 



78 OPINIONS OF THE ATTORNEY-GENERAL. 

contracts for operation or lease of additional lines involving 
the payment of rental beyond the period of public control, 
and because it impairs the obligation of the contract which, 
I am informed, has been executed between the company 
and the department in accordance with the authority given 
by St. 1923, c. 480, § 5. 



Constitutional Law — Estate Tax — Federal 

Statute. 

While a tax law must prescribe the rule under which the tax is to be laid, it may- 
be measured by a standard fixed by some other law or under its authority. 

An act imposing a tax on the transfer of the estate of deceased residents, equal to 
the amount by which eighty per cent of the estate tax payable to the United 
States under the Federal Revenue Act of 1926 exceeds the aggregate amount 
of all estate, inheritance, legacy and succession taxes paid to the several States 
in respect to the decedent's property, would be constitutional. 

SmmiueeTn ^ou aslv my opluiou as to the constitutionality of pro- 
Means'"''* visions contained in section 7 of House Bill No. 1363. This 
Ap^nf 12. bill is entitled "An Act to establish an estate tax," and it pro- 

poses, by section 1, to impose a tax on the transfer of the 
estate of deceased residents of the Commonwealth, the 
amount of which shall be the amount by which eighty per 
cent of the estate tax payable to the United States under the 
Federal Revenue Act of 1926 exceeds the aggregate amount 
of all estate, inheritance, legacy and succession taxes paid to 
the several States in respect to the decedent's property. 

Title III of the Federal act, in section 301 (a), imposes a 
graduated tax on the transfer of the net estate of deced- 
ents; and in clause (b) provides that the tax so imposed 
shall be credited with the amount of any estate, inheritance, 
legacy or succession taxes actually paid to any State or 
Territory or the District of Columbia, in respect to the 
decedent's property, not exceeding 80 per cent of the 
Federal tax. 

Section 7 of the proposed act provides that the act shall 
be null and void in respect to persons dying subsequently, 
upon the repeal of the provision in the Federal act for a 



JAY R. BENTON, ATTORNEY-GENERAL. 79 

credit of taxes paid to the States not exceeding 80 per cent 
of the Federal tax, and that it shall be null and void, and 
all taxes paid thereunder shall be refunded, if that pro- 
vision of the Federal act is declared void. 

I see no constitutional objection to section 7. If the 
Federal provision is repealed or held invalid, no tax would 
be payable under section 1, and the act would have no 
practical future effect, regardless of section 7. If the 
Federal provision were held to be unconstitutional, I see no 
ground of invalidity in the provision for refunding taxes 
already paid. The meaning of the words "shall be declared 
void" might be more definite if the words "by the Supreme 
Court of the United States" were added. 

There is, however, a question as to the constitutional 
validity of the tax imposed by section 1 which should not 
be overlooked, and I assume that your inquiry will permit 
me to offer a statement of my views thereon. 

The Legislature is the sole repository, under the Con- 
stitution, of the power to make laws, and it cannot delegate 
that power to any other body. Brodhine v. Revere, 182 
Mass. 598, 600; Boston v. Chelsea, 212 Mass. 127. For 
that reason, it cannot constitutionally provide that the 
substantive law of the Commonwealth shall change auto- 
matically so as to conform to prospective Federal enact- 
ments and official regulations. Opinion of the Justices, 239 
Mass. 606, 610; VI Op. Atty. Gen. 179. For that reason, 
again, a tax law must prescribe the rule under which the 
tax is to be laid, though it need not prescribe the details. 
Cooley on Taxation, p. 50; Nichols, Taxation in Massa- 
chusetts, 2d ed., p. 16, But the Legislature may by enact- 
ment adopt a standard fix-ed by some other law or under its 
authority. Opinion of the Justices, 239 Mass. 606, 612. 
In Clark & Murrell v. Port of Mobile, 67 Ala. 217, a tax the 
amount of which was made to depend on foreign legislation 
was held invalid, but the weight of authority seems to hold 
the contrary. People v. Fire Association of Philadelphia, 
92 N. Y. 311; cf. Bliss v. Bliss, 221 Mass. 201. 



80 OPINIONS OF THE ATTORNEY-GENERAL. 

The tax imposed by the proposed act is measured by a 
standard fixed by Congress. In accordance with the 
authority cited above, it is my opinion that the bill, if 
enacted, would be constitutional. I express no opinion on 
the constitutionality of the Federal statute, as against the 
objection that it is lacking in geographical uniformity or 
that its apparent object is not to raise revenue for the pur- 
poses of the Federal government but to enforce throughout 
the country a uniform policy of taxation of the passing of 
property by devolution. 



License — Storage of Gasoline — Board of License 
Commissioners in the City of Cambridge — State 

Fire Marshal. 

• 

The authority given to the board of license commissioners in the city of Cambridge 
by St. 1922, c. 95, to grant, suspend or revoke licenses was not intended to 
include the authority to disapprove the granting of a license by the Fire Mar- 
shal, given to the city council of a city or the selectmen of a town by G. L., 
c. 148, § 30. 

'^iJtolS'^'Tf You ask my opinion in regard to the effect of St. 1922, 

puWic Safety. ^^ g^^ rclatlve to the Board of License Commissioners in the 

-^ ■ city of Cambridge, upon the authority of the State Fire 

Marshal to issue licenses under G. L., c. 148, § 14, as 

amended. 

St. 1922, c. 95, amends Spec. St. 1919, c. 83, estabUshing 

a board of License Commissioners in the city of Cambridge. 

It contains the following provisions : — 

The authority now vested by law in cities or towns, or in the city of 
Cambridge or any official thereof, to grant, suspend or revoke any of the 
licenses hereinafter mentioned, shall upon its organization be exercised 
in said city by said board exclusively, except that nothing herein con- 
tained shall affect the authority of the state fire marshal in respect to the 
performance of his duties pertaining to the metropolitan fire prevention 
district. 

Among the licenses named are licenses to use a building or 
other structure for the keeping, storage, manufacture or sale 



JAY R. BENTON, ATTORNEY-GENERAL. 81 

of articles named in G. L., c. 148, § 10, except fireworks, 
firecrackers and torpedoes. 

G. L., c. 148, § 30, gives to the Fire Marshal, within the 
Metropolitan District, the powers given by section 14 and 
other sections to license persons or premises and to grant 
permits for the storage and sale of the articles named in 
section 10. Thus by section 30 the powers given by section 
14 to aldermen and selectmen to grant licenses for the use of 
a building or other structure for the keeping, storage, manu- 
facture or sale of any of the articles named in section 10, 
except fireworks, firecrackers and torpedoes, are, within the 
Metropolitan District, to be exercised by the Fire Marshal; 
and by the express provision of St. 1922, c. 95, his authority 
in that respect is not affected by the terms of that act. 

G. L., c. 148, § 30, contains the following provision: — 

Provided, that the city council of a city or the selectmen of a town 
may disapprove the granting of such a hcense or permit, and upon such 
disapproval the permit or hcense shall be refused. 

You ask my opinion whether this provision of section 30 
is applicable to the action of the Board of License Com- 
missioners in the city of Cambridge in refusing a license for 
the construction and maintenance of a garage in that city. 
I am informed that the Fire Marshal has delegated to the 
Board of License Commissioners in the city of Cambridge, 
under G. L., c. 148, § 31, the power to grant licenses and 
permits in that city reposed in him by section 30, and that 
an appeal is pending before him upon their refusal to grant 
the license referred to in your inquiry. I assume that the 
action of the board may be interpreted as a refusal to 
exercise the delegated authority conferred by sections 30 
and 31. 

I am of the opinion that the authority. given to the Board 
of License Commissioners in the city of Cambridge by St. 
1922, c. 95, "to grant, suspend or revoke any of the licenses 
hereinafter mentioned" was not intended to include the 
authority to disapprove the granting of a license or permit 



82 OPINIONS OF THE ATTORNEY-GENERAL. 

by the Fire Marshal, given to the City Council of a city or 
the selectmen of a town by G. L., c. 148, § 30, both because 
the words used in their natural sense are not sufficiently 
broad, and because it is expressly provided that the authority 
of the Fire Marshal shall not be affected thereby. I think 
that the action of the board in refusing to grant a license is 
to be construed not as an attempt to express such disap- 
proval but as an exercise of the delegated power of the Fire 
Marshal under sections 30 and 31. 

I therefore advise you that the Fire Marshal is authorized 
to hear the appeal and to grant a license under section 30 
unless the City Council should pass an order disapproving 
such grant. 



Boston and Maine Railroad — Issue of Convertible 
Bonds — Department of Public Utilities. 

Convertible bonds of a railroad corporation cannot be issued without the approval 
of the Department of Public Utilities, and such approval cannot be given 
unless the issue is authorized by statute. 

The authority given by St. 1925, c. 336, § 2, to the Boston & Maine Railroad to 
issue convertible bonds and additional stock may be construed to include 
authority to deliver in exchange for such bonds stock already issued. 

An agreement to deliver stock not then owned by the corporation in exchange for 
a bond, or to pay the conversion value of the bond in the alternative, is not 
illegal under the stock-jobbing act (G. L., c. 259, § 6). 

pa°rtmen?^of ^^'^ have subnutted to me a draft of an agreement be- 
Pubiic utih- tween the Boston and Maine Railroad and trustees for the 
April 22. benefit of bondholders, relative to mortgage bonds which 

the railroad proposes to issue, and containing provisions 
for the conversion of those bonds into prior preference stock 
or the payment of the conversion value thereof. The 
material portion of said agreement is as follows : — 

(2) The Railroad agrees (except as otherwise expressly provided 
in this agreement) that if the holder of any bond herein referred to shall 
deposit said bond with the Corporate Trustee on and after January 1, 
1930, and before January 1, 1940, accompanied by a written request for 
the conversion of said bond into stock as herein provided, the Railroad 



JAY R. BENTON, ATTORNEY-GENERAL. 83 

will thereupon, if it shall then be lawful for the Railroad to do so under 
the provisions of State and Federal legislation then in force, issue in the 
name of such holder and deliver to the Corporate Trustee for such holder 
in exchange for the bond so deposited new and additional shares not 
previously issued of the seven per cent prior preference stock of the Rail- 
road at the rate of Five (5) shares of such stock for each Five Hundred 
(500) Dollars in principal amount of bonds so deposited, said shares to 
be dehvered forthwith by the Corporate Trustee to said holder. The 
Railroad further agrees that it will use its best efforts to obtain such 
further legislation and such approval by State and/or Federal authorities 
as may be necessary in order to make lawful as aforesaid the conversion 
of bonds into stock as aforesaid. The Railroad further agrees (except 
as otherwise expressly provided in this agreement) that if at the time of 
the deposit of any bond as aforesaid it shall not be lawful as aforesaid 
for the Railroad to issue shares in exchange therefor as aforesaid the 
Railroad will then within thirty (30) days after the deposit of said bond 
either 

(a) deliver to the Corporate Trustee for such holder in exchange for 
said bond, at the rate aforesaid, shares of said prior preference stock 
previously issued, said shares to be delivered forthwith by the Corporate 
Trustee to said holder; 

or at the option of the Railroad 

(b) pay to the Corporate Trustee for the benefit of such holder a sum 
of money equal to the then conversion value of said bond determined 
as hereinafter provided, said sum to be paid and said bond then to be 
returned forthwith by the Corporate Trustee to said holder. 

This proposed agreement follows St. 1925, c. 336, en- 
titled ''An Act authorizing the Boston and Maine Railroad 
to issue preferred stock and to make certain of its bonds con- 
vertible and relative to extending the maturity of certain 
outstanding bonds." Section 1 authorizes the issue of a 
new class of preferred stock, having an annual cumulative 
dividend rate not exceeding seven per cent, and callable and 
redeemable at not exceeding $110 a share, the issuance and 
terms all being subject to the approval of the Department 
of Public Utilities. This stock, I understand, is the prior 
preference stock referred to in the agreement. Section 2 of 
the act is as follows : — 

"Said Boston and Maine Railroad may also by vote of a majority 
of all its outstanding stock, with the approval of said department and 



84 OPINIONS OF THE ATTORNEY-GENERAL. 

by appropriate agreement with the holders of all or any part of any 
bonds of said corporation heretofore or hereafter issued provide and 
agree that such bonds shall be convertible at par at a future time at the 
option of such holders into shares of the new class of preferred stock 
hereby authorized upon such terms and conditions as may be fixed in 
such vote with the approval of said department, and upon the decision 
of said department approving such provision and agreement the shares 
of such preferred stock required for the conversion of said bonds shall be 
a part of the authorized capital stock of said corporation, and may be 
issued from time to time thereafter for the conversion of said bonds, but 
not otherwise, without any further authorization, order, or decree by 
said department. 

You state that the agreement, in so far as it provides for 
the conversion of bonds into stock to be afterwards issued, 
is, you think, an appropriate agreement. It appears, 
however, that the authority of the Federal government and 
of other States in which the Boston and Maine Railroad is 
incorporated, to issue new stock for the purpose of conver- 
sion into bonds, has not been obtained, and in order to cover 
the contingency that such authority may not be obtained 
the agreement contains the supplemental provisions that, 
in that event, the railroad may dehver in exchange for 
bonds presented for conversion either (a) prior preference 
stock previously issued, or at the option of the railroad (6) 
a sum of money equal to the conversion value of such bonds. 
You ask my opinion whether the department may legally 
approve the agreement containing these supplemental 
features. 

Under G. L., c. 160, § 48, the bonds referred to in the 
agreement cannot be issued without the approval of the 
Department of Public Utilities. The provision requiring 
such approval is as follows : — 

Before any railroad corporation shall issue any shares of capital stock 
or any bonds, notes or other evidences of indebtedness payable at periods 
of more than one year after the date thereof, it shall apply to the depart- 
ment for its approval of the proposed issue to such amount as the depart- 
ment shall determine to be reasonable and proper . . . Any order of 
the department approving any such issue of stock, bonds, notes or other 



JAY R. BENTON, ATTORNEY-GENERAL. 85 

evidences of indebtedness may provide for the application of the proceeds 
thereof to such particular uses as the department shall by that order or 
by some subsequent order specify, and the corporation shall not apply 
such proceeds otherwise than as thus specified in such orders. The deci- 
sion of the department as to the amount of stock reasonably necessary 
for the purpose for which such stock is proposed to be issued shall be 
based upon the price at which such stock is to be issued, and the depart- 
ment shall refuse to approve any particular issue of stock, if, in its opinion, 
the price at which it is proposed to be issued is so low as to be inconsistent 
with the public interest. 

It has been held that the approval so required goes not 
merely to the amount but to the issue itself, and that such 
approval cannot be given to an issue of convertible bonds 
unless the issue is authorized by statute. Bulkeley v. New 
York, New Haven & Hartford R.R. Co., 216 Mass. 432, 433, 
434, 440. Cf. Brown v. Boston & Maine R.R., 233 Mass. 
502, 512. 

Accordingly, the provision made in clause (a) for the 
delivery in exchange for bonds of shares of prior preference 
stock previously issued, in my opinion, cannot be approved 
unless it is authorized by St. 1925, c. 336. Section 2 of that 
act, quoted above, provides for two things: first, the issu- 
ance of bonds which may be converted into shares of prior 
preference stock; and secondly, the issuance of additional 
shares of such stock required for the conversion of the bonds. 
The agreement with the bondholders for the issuance of 
convertible bonds may contain such terms and conditions 
as may be fixed by vote of a majority of the stockholders, 
with the approval of the Department of Public Utilities. 

While the exchange of these bonds for stock already issued 
seems not to have been contemplated, nevertheless, as I 
read the wording of section 2 such a provision is not con- 
trary either to the Uteral meaning of the section or to its 
spirit. The earlier part of section 2, authorizing the issu- 
ance of convertible bonds, contains the limitation only that 
the conversion shall be "at par at a future time at the option 
of such holders into shares of the new class of preferred stock 
hereby authorized (i.e., in section 1)," and it also, as I have 



86 OPINIONS OF THE ATTORNEY-GENERAL. 

said, permits the terms and conditions of the agreement 
with the bondholders to be fixed by the stockholders, with 
the approval of the department. The latter part of section 
2 provides simply for the issuance of such shares of the pre- 
ferred stock not already issued as may be required for the 
conversion of the bonds, and provides that such shares may 
thereafter be issued for the purpose of conversion, but not 
otherwise. It is my opinion that the statutory authority 
contained in section 2 may properly be construed to include 
the making of an agreement such as that contained in 
clause (a). 

The fact that the corporation, in order that it may pro- 
ceed under clause (a), must purchase, hold and then deliver 
its own stock, in my opinion, does not introduce into the 
agreement any element of illegality. The rule is well 
established that a corporation under its general powers may 
purchase its own stock unless there is some positive provision 
of law to the contrary. The rule seems to be equally appli- 
cable to corporations engaged in public service and to cor- 
porations having the power to take by eminent domain, as 
well as to other corporations. Dupee v. Boston Water 
Power Co., 114 Mass. 37, 43; New England Trust Co. v. 
Ahhott, 162 Mass. 148, 152; Leonard v. Draper, 187 Mass. 
536. Furthermore, the agreement in clause (a), in my 
judgment, is not open to attack under the stock-jobbing 
act (G. L., c. 259, § 6), because the stock the delivery of 
which is there provided for was not owned by the corpora- 
tion at the time of the agreement. While the result might 
be otherwise if the corporation were bound by the agree- 
ment to deliver stock which at the time of the making of the 
agreement it did not own, in this case the presence of the 
alternative option would seem to remove any objection 
under the statute referred to. See Pratt v. American Bell 
Telephone Co., 141 Mass. 225; Barrett v. Mead, 10 Allen, 
337; Wood v. Farmer, 200 Mass. 209, 215. 

The alternative agreement contained in paragraph (6), 
it seems to me, may properly be regarded as one of the 



JAY R. BENTON, ATTORNEY-GENERAL. 87 

"terms and conditions" which, when fixed by the vote of 
stockholders, may receive the approval of the department. 
In this connection it should be observed that this prior 
preference stock is callable and redeemable at a price which 
cannot exceed $110 a share. 

As to the alternative provisions contained in clauses (a) 
and (h) it should be observed that the question arises only 
on the authority of the department to approve an issue of 
convertible bonds which the department is authorized to 
approve upon terms and conditions fixed by the stock- 
holders, and that there is no statutory limitation contained 
in G. L., c. 160, § 48, or elsewhere, upon the rate of interest 
which bonds requiring such approval shall carry or the price 
at which they may be issued or redeemed. The objection 
stated in Bulkeley v. New York, New Haven & Hartford R.R. 
Co., 216 Mass. 432, 439, to an obligation requiring the ap- 
proval of the department which has in it an inherent element 
of uncertainty and speculation is met by the fact that the 
convertible feature has already received the approval of the 
Legislature. There is no objection to the performance of 
the agreements set out in clauses (a) and (b) which is not 
inherent in the performance of the contract to convert bonds 
into stock. I therefore conclude that it is within the power 
of the Department of Public Utilities to approve the form 
of agreement submitted, and I so advise you. 



Motor Vehicle — Sale of Business by Dealer, Manu- 
facturer OR Repair Man — Rebate — Registra- 
tion Fee. 

A dealer, manufacturer or repair man who sells his business, and with it the motor 
vehicle registered under his distinguishing number, is entitled to a rebate under 
G. L., c. 90, § 2. 

You have requested my opinion upon the following ^•'ss*one?*'™f 
question: Can a rebate be legally paid to a dealer, manu- ruW'e^"'"'"^* 
facturer or repair man who sells out his business and with ^^^'^- 



88 OPINIONS OF THE ATTORNEY-GENERAL. 

it all the vehicles registered under his distinguishing number, 
in the same manner that a rebate is paid to an individual 
selling a car under the provisions of G. L., c. 90, § 2? The 
material part of G. L., c. 90, § 2, applicable to the question 
under consideration provides : — 

A person who before the first day of August in any year transfers 
the ownership or loses possession of any vehicle registered in his name, 
and who applies for the registration of another vehicle of less horse power 
or carrying capacity than that of the vehicle so transferred or lost, shall 
be entitled, upon payment of the proper fee set forth in section thirty- 
three, to a rebate equivalent to one half the difference between the fee 
for the higher and the fee for the lower horse power or carrying capacity; 
and a person under like conditions who does not apply for the registration 
of another vehicle, but who, on or before the first day of September in the 
same year, files in the ofiice of the registrar a written appUcation for a 
rebate shall be entitled to a rebate of one half the fee paid for the regis- 
tration of such vehicle; . . . 

G. L., c. 90, § 1, provides that the word "persons" shall 
have the following meaning unless a different meaning is 
clearly apparent from the language or context, or unless 
such construction is inconsistent with the manifest intention 
of the Legislature : — 

"Persons," wherever used in connection with the registration of a 
motor vehicle, all persons who own or control such vehicles as owners, 
or for the purpose of sale, or for renting, as agents, salesmen or otherwise. 

It is clear that, by the definition quoted, dealers, manu- 
facturers or repair men are included within its scope, and 
that they may be persons "who own or control such vehicles 
. . . for the purpose of sale ... or otherwise J ^ I find 
nothing in the enactment which would indicate a legisla- 
tive intent to make a distinction in the matter of a "rebate" 
between "an individual selling a car" and "a dealer, manu- 
facturer or repair man who sells out his business and with it 
all the vehicles registered under his distinguishing number." 

I am therefore of the opinion that a "dealer, manufac- 



JAY R. BENTON, ATTORNEY-GENERAL. 89 

turer or repair man" who "transfers the ownership or loses 
possession of any vehicle (or vehicles) registered in his 
name" is entitled to a rebate, in accordance with the pro- 
visions of G. L., c. 90, § 2. 



Constitutional Law — County and Boston 
Retirement Systems. 

An act requiring the retirement at seventy years of age of all employees, including 
public officers, except judges, would be constitutional. 

Legislation applicable to a particular class will be sustained if there is a reasonable 
basis for the distinction, but not where it results in an arbitrary discrimination 
between classes. 

Discrimination between public officers who have been treated as members of a 
retirement association, although they were not legally such, and other public 
officers, giving to the former the right to become members and excluding the 
latter, is arbitrary', and a bill making such discrimination would be uncon- 
stitutional. 



To the Senate. 



You request my opinion as to the constitutionality, if 1926 
enacted into law, of two engrossed bills relative, respectively, -^ ' 
to county retirement systems and to the Boston retirement 
system, being, respectively, Senate Bill No. 307 and Senate 
Bill No. 317, as passed to be enacted by the House and 
Senate. 

Senate Bill No. 307 is entitled ''An Act establishing the 
status of certain officials and public officers in respect to 
certain county retirement systems." This bill proposes 
certain changes in the county retirement systems authorized 
by G. L., c. 32, §§ 20-25. It will be convenient to state 
some of the important provisions of the law on that subject 
as it now is. 

Section 20, as amended by St. 1924, c. 281, § 2, defines 
the meaning of certain words. The word ''employees" 
is defined as follows : — 

"Employees," permanent and regular employees in the direct service 
of the county whose sole or principal employment is in such service, 
except teachers employed in any day school conducted under sections 
twenty-five to thirty-seven, inclusive, of chapter seventy-four. 



90 OPINIONS OF THE ATTORNEY-GENERAL. 

Section 22 as is as follows : — 

Whenever a county shall have voted to establish a retirement system 
under section twenty-one, or corresponding provisions of earlier laws, 
a retirement association shall be organized as follows: 

(1) All employees of the county on the date when the retirement 
system is declared established by the issue of the certificate under section 
twenty-one may become members of the association. On the expiration 
of thirty days after said date, every such employee shall thereby become 
a member unless he shall have, within that period, sent notice in writing 
to the county commissioners or officers performing like duties that he 
does not wish to join the association. 

(2) All employees who enter the service of the county after the date 
when the system is declared established, except persons who have already 
passed the age of fifty-five shall, upon completing ninety days of service, 
thereby become members. Persons over fifty-five who enter the service 
of the county after the establishment of the system shall not be allowed 
to become members, and no such employee shall remain in the service 
of the county after reaching the age of seventy. 

(3) No officer elected by popular vote, except in Worcester county, 
nor any employee who is or will be entitled to a pension from any county 
for any reason other than membership in the association may become a 
member. 

(4) Any member who reaches the age of sixty and has been in the 
continuous service of the county for fifteen years immediately preceding 
may retire, or be retired by the board upon recommendation of the head 
of the department in which he is employed, and any member who reaches 
the age of seventy shall so retire. 

(5) Any member who has completed thirty-five years of continuous 
service may retire, or be retired upon recommendation of the head of 
the department in which he is employed, if such action be deemed ad- 
visable for the good of the service. 

Section 24, in subsection (2), provides for deposits in the 
retirement fund by members from their wages or salary, 
and contributions by the county. Section 25, in subsection 
(2), provides for the payment of annuity and pension funds 
to members of a county retirement system. These pay- 
ments are of three classes: first, (A) refunds to members 
ceasing to be employees before becoming entitled to the 
benefits given upon retirement ; secondly, (B) annuities from 
employees' deposits upon retirement; and thirdly, (C) 



JAY R. BENTON, ATTORNEY-GENERAL. 91 

pensions derived from contributions by the county upon 
retirement, based upon subsequent service, and also pensions 
based upon prior service, allowing a credit in certain in- 
stances for service before the system was estabhshed. 

Under the retirement system thus authorized, all em- 
ployees are required to leave the service after reaching the 
age of seventy, and employees who are members of the 
system upon their retirement receive the benefits provided 
by the statute, including, in certain instances, credit for 
prior service. As to membership, it is provided that all 
employees of the county on the date of the establishment 
of the system may become members, and shall unless written 
notice is given to the contrary ; that all employees who enter 
the service of the county thereafter, except persons then 
over fifty-five, shall become members; that persons over 
fifty-five so entering shall not become members; and that no 
officer elected by popular vote, except in Worcester County, 
and no employee who is or will be entitled to any other 
pension from a county may become a member. 

Section 1 of the proposed act amends section 20, as pre- 
viously amended, in substance, by adding to the definition 
of "employees" the following: "Any officials or public 
officers whose compensation is paid by the county, whether 
employed or appointed for a stated term or otherwise, 
except, in counties other than Worcester, an official or 
public officer elected by the people." 

Section 2 of the proposed act purports to validate the 
membership in any county retirement association of every 
person who "presumptively entered any such system," 
in so far as such membership was illegal or invalid because 
of his being an official or a public officer, and also to ratify 
all acts done by any such association or any officer thereof 
in connection with any such presumptive evidence, as if the 
amendment introduced by section 1 of the proposed act 
had been in effect at the time. 

Regarding the general effect of the proposed changes, 
it should be observed that they are of considerable im- 



92 OPINIONS OF THE ATTORNEY-GENERAL. 

portance. Whereas, under the decision of our court in 
O'Connell v. Retirement Board of the City of Boston, 254 
Mass. 404, the term "employees," as used in a similar 
retirement act, did not include public officials, now, with 
respect to county retirement systems, such officials, whether 
employed or appointed for a stated term or otherwise, are 
to be included. No person over seventy years of age, if 
the bill is enacted into law, hereafter may be employed by 
a county for any sort of service unless (except in Worcester) 
he is elected by the people. All persons so employed must 
retire on reaching the age of seventy. But, with the ex- 
ception hereafter stated, this presents no feature of un- 
constitutionality. It is settled that the occupant of a public 
office may be deprived of that office by act of the Legislature 
changing its tenure, in the absence of constitutional re- 
striction, and that he has no cause of action on that account. 
Taft V. Adams, 3 Gray, 126, 130; Opinion of the Justices, 117 
Mass. 603; Donaghy v. Macy, 167 Mass. 178; Graham v. 
Roberts, 200 Mass. 152, 157; Opinion of the Justices, 216 
Mass. 605; Attorney General v. Tufts, 239 Mass. 458, 480. 

Justices of district courts are paid by the counties, and 
therefore come within the terms of the provisions of the bill. 
As to them, the provisions are plainly unconstitutional, 
being in direct violation of Mass. Const., pt. 2nd, c. Ill, art. 
I. If the bill were enacted in its present form, however, 
it would not be held to be wholly invalid on that account, 
but the court would, in my judgment, apply the principle 
that the statute must be interpreted as intended to apply 
only to that class of persons to whom it would be consti- 
tutionally applicable. Attorney General v. Electric Storage 
Battery Co., 188 Mass. 239; Baltic Mining Co. v. Common- 
wealth, 207 Mass. 381, 390. The bill, however, must, I 
think, be regarded as defective for this reason. 

The observation should also be made that, while by the 
original statute the establishment of a county retirement 
system was made to depend upon the acceptance of such a 
system by the voters of the county (St. 1911, c. 634, § 2, 



JAY R, BENTON, ATTORNEY-GENERAL. 93 

G. L., c. 32, § 21), no opportunity is given them to vote 
upon the proposed amendment. To this feature of the bill 
I find, however, no constitutional objection. Opinion of the 
Justices, 138 Mass. 601, 603; Graham v. Roberts, 200 Mass. 
152, 156. 

The language of section 2 of the bill is somewhat obscure. 
It seems inapt to describe persons who could not lawfully 
become members of a retirement system as having "pre- 
sumptively" entered that system. The natural presump- 
tion would seem to be that the members of the system were 
those who were legally entitled to become members. I 
infer, however, that the intention is to describe those persons 
who, although they were public officers and therefore, under 
the decision in the O'Connell case, were not authorized to 
join, nevertheless did not give notice in writing of their 
unwillingness to join, have paid their contributions and have 
been treated as members. 

A distinction is thus drawn between pubhc officers who 
have been treated as members and those who have not. 
The membership of the former is validated, so that they are 
entitled to all the benefits thereof from the beginning, in- 
cluding credit for prior service. But no provision is made 
for the latter class whereby they may have any of the 
benefits of membership, or even the privilege of becoming 
members thereafter. G. L., c. 32, § 22, providing that 
membership shall begin with the establishment of the sys- 
tem or the entry of the employee into service, cannot give 
them that privilege, since those provisions cannot be appli- 
cable to a person already in the service who now becomes 
an employee by definition. Wilson v. Head, 184 Mass. 515; 
Wheelwright v. Tax Commissioner, 235 Mass. 584. The 
possible presumption of a legislative intent that public 
officers who have not been treated as members are now to 
be regarded as having been members from the time of the 
establishment of the system or their entry into service, is 
rebutted by the fact that the Legislature has made that 
provision only for persons who are presumptively members. 



94 OPINIONS OF THE ATTORNEY-GENERAL. 

Legislation applicable to a particular class, thereby dis- 
tinguishing that class from other classes, will be sustained 
if a reasonable basis for the distinction can be found; but 
it will not be sustained where the distinction results in an 
arbitrary discrimination between classes. Classifications 
and distinctions must be based upon some sound reason, 
in order to avoid the objection that they are violative of the 
Fourteenth Amendment to the Constitution of the United 
States, guaranteeing to all persons the equal protection of 
the laws. Yick Wo v. Hopkins, 118 U. S. 356, 369-374; 
Gulf, Colorado & Santa Fe Ry. Co. v. Ellis, 165 U. S. 150, 
155, 165; Cotting v. Kansas City Stock Yards Co., 183 U. S. 
79, 102-112; Connolly v. Union Sewer Pipe Co., 184 U. S. 
540, 558-563; Southern Ry. Co. v. Greene, 216 U. S. 400, 
417; Truax v. Raich, 239 U. S. 33; Royster Guano Co. v. 
Virginia, 253 U. S. 412, 415; Truax v. Corrigan, 257 U. S. 
312, 332-339; Brown v. Russell, 166 Mass. 14; Opinion of 
the Justices, 166 Mass. 589; Commonwealth v. Interstate, 
etc., St. Ry. Co. 187 Mass. 436, 438, 439; Commonwealth v. 
Hana, 195 Mass. 262, 266; Massachusetts General Hospital 
V. Belmont, 233 Mass. 190, 200-202; V Op. Atty. Gen. 56; 
VII Op. Atty. Gen. 331. 

In my opinion, the discrimination contained in section 2 
between those public officers who made deposits and were 
treated as members of the association and other public 
officers, whereby the former are given a right to the benefits 
of membership as if they had been members from the be- 
ginning, while the latter are not given that right and ap- 
parently have not even the privilege of becoming members 
hereafter, cannot be based on any sound and reasonable 
ground justifying such a distinction between persons none 
of whom, as the court has held, have hitherto been legally 
members. For this reason, the bill in its present form, if 
enacted, would, in my opinion, be unconstitutional, within 
the principle of the decisions cited above. 

In giving this opinion I am assuming that there are 
public officers, paid by counties, who fall within the latter 



JAY R. BENTON, ATTORNEY-GENERAL. 95 

of the two classes. If in fact there are not, the bill, while it 
might perhaps be better phrased to avoid the appearance of 
discrimination, would not be open to the objection of un- 
constitutionality on that account. 

Section 2 also purports to ratify and confirm acts done by 
a county retirement association in connection with the pre- 
sumptive entrance of a public official into membership. 
The general principle is that a Legislatiu-e may by statute 
ratify the doing of an act which it could have authorized 
at the time, unless vested rights are impaired thereby. 
Stockdale v. Insurance Companies, 20 Wall. 323, 331, 332; 
United States v. Heinszen & Co., 206 U. S. 370; Forbes Boat 
Line v. Board of Commissioners, 258 U. S. 338; Charlotte 
Harbor Ry. v. Welles, 260 U. S. 8. VI Op. Atty. Gen. 175. 
I see no constitutional objection to this provision. 

Senate Bill No. 317 is entitled "An Act estabhshing the 
status of officials and pubhc officers paid by the City of 
Boston or the County of Suffolk or both in respect to the 
Boston retirement system, and relative to the retirement 
from the service of said city or county by certain officers 
thereof." This bill proposes certain changes in the Boston 
retirement system. It amends sections 2 and 9 of St. 1922, 
c. 521, as previously amended, establishing that system, 
and contains other provisions affecting it. Before sum- 
marizing the provisions of the bill it will be convenient to 
refer to the prior law. 

Section 2 of St. 1922, c. 521, as amended by St. 1923, 
c. 381, § 3, and by St. 1925, c. 18, defines the meaning of 
certain words and phrases used in the act. The word 
"employee" is defined as follows: — 

"Employee" shall mean any regular and permanent employee of the 
city of Boston or county of Suffolk (except teachers who, on September 
first, nineteen hundred and twenty-three, are employed by the city of 
Boston and are members of the state teachers' retirement association) 
whose employment is such as to require that his time be devoted to the 
service of the city or county, or both, in each year during one half or 
more of the ordinaiy working hours of a city employee, or any regular 



96 OPINIONS OF THE ATTORNEY-GENERAL. 

and permanent employee of this commonwealth whose compensation is 
wholly paid by the city of Boston or by the county of Suffolk, and the 
working superintendent and his employees of the index commissioners 
of the county of Suffolk. 

Section 3 requires the retirement system to be established 
on February 1, 1923. 

Section 5 provides for membership in the retirement 
system, and terminates the services of an employee who is 
not a member at the age of seventy. Following are sig- 
nificant portions of that section : — 

All persons who are employees on the date when this retirement 
system is established may become members of the system. Every 
employee in service on said date, except an employee then covered by any 
other pension or retirement law of this commonwealth, shall, on the 
expiration of sixty days from said date, be considered to have become 
a member of this retirement system unless within that period he shall 
have sent notice in writing to the retirement board that he does not 
wish to join the system. Employees declining to join this retirement 
system within sixty days from the establishment of the system may 
thereafter be admitted to membership but no employee shall receive 
credit for prior service unless he applies for membership or becomes 
a member of the retirement system within one year from the date of 
the establishment of the system. 

On and after January first, nineteen hundred and twenty-six, the 
services of an employee, not a veteran of the Civil war, of the Spanish 
war or Philippine insurrection or the World war as defined in section 
fifty-six of chapter thirty-two of the General Laws, or not a member of 
the judiciary or not a teacher, who attains or has attained the age of 
seventy and who is not a member of this system, shall terminate forth- 
with. 

Section 6, as amended by St. 1924, c. 251, § 1, creates 
certain funds, made up from deductions from the com- 
pensation of members and contributions by the city. 

Section 9, as amended by St. 1924, c. 251, § 2, provides 
for the retirement of members of the system. It contains 
the following provision : — 

A member of this retirement system who shall have attained age 
seventy shall be retired for superannuation within thirty days, except 



JAY R. BENTON, ATTORNEY-GENERAL. 97 

members of the judiciary, heads of departments and members of boards 
in charge of departments, and except that a school teacher shall be 
retired on the thirty-first day of August following his attaining the age 
of seventy. 

Section 10, as amended by St. 1924, c. 251, § 3, provides 
for a retirement allowance for members of the retirement 
system, consisting of an annuity, a pension and an addi- 
tional pension, with certain minimum and maximum pro- 
visions. The provisions establishing the annuity, pension 
and additional pension are as follows : — 

(a) An annuity which shall be the actuarial equivalent of his accumu- 
lated deductions at the time of his retirement, and 

(6) A pension equal to the annuity, and 

(c) If a member was an employee at the time the system was estab- 
lished and became a member within one year thereafter and has not 
since become a new entrant, an additional pension having an actuarial 
value equivalent to twice the contributions which he would have made 
during his prior service had the system then been in operation, together 
with regular interest thereon. 

By the terms of clause (c) it will be observed that any 
employee who became a member of the system on or before 
February 1, 1924, is entitled to receive an additional pen- 
sion based on the length of his prior service. This privilege 
was extended by St. 1924, c. 251, § 4, which permitted heads 
of city departments and members of boards in charge of 
city departments to become members on written application 
within sixty days after the act took effect, and provided 
that, after being so admitted, they should receive credit for 
prior service, notwithstanding any provision of St. 1922, c. 
521. I am informed that June 22, 1924, the date men- 
tioned in section 3 of Senate Bill No. 317, was sixty days 
after the effective date of the 1924 statute. The privilege 
was again extended by St. 1925, c. 90, which permitted 
employees who had not previously joined to become mem- 
bers by making written apphcation for such membership 
within ninety days of the effective date of the act, and pro- 
vided that an employee so becoming a member of the retire- 



98 OPINIONS OF THE ATTORNEY-GENERAL. 

ment system should receive credit for prior service, not- 
withstanding any provision of St. 1922, c. 521. 

Section 1 of the proposed act amends St. 1922, c. 521, 
§ 2 (6), defining the word "employee," so as to include in 
the class of employees ''any official or public officer whose 
compensation is paid by said city or county or both, whether 
employed or appointed for a stated term or otherwise," 
except persons elected by the people, court officers of the 
Supreme Judicial and Superior Courts appointed prior to 
February 1, 1923, and teachers who, on September 1, 1923, 
were employed by the city of Boston and were members 
of the State Teachers' Retirement Association. 

Section 2 of the proposed act amends St. 1922, c. 521, 
§ 9, so as to include in the class of members of the retirement 
system not subject to retirement for superannuation at 
seventy officials and public officers originally appointed 
prior to February 1, 1923, by the Governor, with the advice 
and consent of the Council, whose salaries are paid by the 
County of Suffolk or by the city of Boston, or by both, and 
members of the system who were originally appointed prior 
to that date by the justices of the Supreme Judicial or 
Superior Courts, and whose salaries are paid in like manner. 

Section 3 of the proposed act purports to vaUdate the 
membership in the retirement system of every person who 
"purportedly entered said system," either at any time by 
reason of becoming a "new entrant," or, prior to June 22, 
1924, by any other method, whose membership was invalid 
by reason of the fact that he was at the time an official or a 
public officer. For the purpose of such validation the 
provisions of section 1 are made retroactive as if they had 
been in effect on and after February 1, 1923. 

Section 4 of the proposed act permits persons appointed 
by the Governor, with or without the advice and consent of 
the Council, whose membership in the system is made legal 
and valid by sections 1 and 3, to withdraw from membership 
on written notice. 

Section 5 provides that the act shall take effect upon its 



JAY R. BENTON, ATTORNEY-GENERAL. 99 

passage, differing in that respect from St. 1922, c. 521, St. 
1924, c. 251, and St. 1925, c. 90, which provided for sub- 
mission to the city council for acceptance. 

The result of this bill, if enacted, will be that public 
officers whose compensation is paid by the city or county 
(with the enumerated exceptions), now for the first time 
made employees by definition, and hence subject to retire- 
ment for superannuation at seventy, will be entitled to the 
benefits of the retirement system if they attempted to do 
an act which they could not legally do by purporting to 
become members of that system, either as new entrants, or, 
prior to February 1, 1924, under St. 1922, c. 521, § 5, or, 
prior to June 22, 1924, under St. 1924, c. 251, § 4; but that 
persons who did not make the attempt to do that invalid 
act and persons who did make the attempt under St. 1925, 
c. 90, will not be entitled to receive those benefits. Among 
the benefits so conferred are the right to a pension and to 
credit for prior service, as explained above, and the right 
not to be retired for superannuation at seventy, if the person 
is of the class of public officers described in section 2 of the 
bill. 

Because of this apparently arbitrary discrimination be- 
tween classes, and for the reasons stated in discussing 
Senate Bill No. 307, it is my opinion that this bill in its 
present form, if enacted into law, would be unconstitutional. 



Constitutional Law — Power of the Legislature — 
Payment to the Family of a Deceased Member of 
the House of Representatives. 

The Legislature may lawfully authorize the payment of the balance of a yearly 
salary to the family of a deceased member of the House of Representatives if, 
in the exercise of its reasonable judgment, it determines that such payment is 
for a purpose which will promote the general public welfare. 

You have submitted to me for examination and report ^othe 

^ Governor. 

House Bill No. 1485, entitled "Resolve in favor of the estate ^i^^^% 
of the late Frederick A. Warren." — 



100 OPINIONS OF THE ATTORNEY-GENERAL. 

The purpose of this resolve is to authorize the payment 
to the estate of a deceased member of the present House of 
Representatives the balance of his salary for the current 
year. 

Payment of the nature authorized by this legislation is a 
pure gratuity and may not be made by the Legislature if 
it is merely an appropriation of public moneys for a private 
purpose. A gratuity of this nature may be, and often is, 
made for a purpose which can fairly be considered as serving 
the public good, and for this latter purpose the General 
Court has the right to grant money, and the distinction as 
to what are and what are not public purposes must in a 
large measure be left to the conscientious decision of the 
Legislature itself. Opinion of the Justices, 190 Mass. 611. 
If the public purpose to be served by the appropriation is 
not clear, the Legislature is bound to recite in the instrument 
of appropriation such words as will indicate the existence 
of facts and of a legislative reason for the determination 
that the purpose is in a true sense public and not private. 
Unless it can fairly be said that the judgment of the General 
Court in the premises was manifestly unreasonable, their 
expressed finding that the public good will be promoted by 
the payment authorized in their enactment in connection 
with certain facts therein set forth, the measure cannot be 
said to be unconstitutional. Opinion of the Justices, 240 
Mass. 616. 

In the instant resolve it is clearly stated that the payment 
authorized therein is made for the purpose of promoting 
the pubhc good, and that the services of the deceased in the 
General Court were long and meritorious. There is a 
declaration of legislative purpose. Facts relating to it in 
connection with the deceased and his services are specified, 
although meagerly, and are presumably matters of public 
knowledge. It is therefore plain, and does not need merely 
to be inferred from the language of the bill, as was the case 
in the matter before the court in Opinion of the Justices, 
240 Mass. 616, that these considerations actuated the 



JAY R. BENTON, ATTORNEY-GENERAL. 101 

Legislature in reaching a conclusion that the public good 
would be promoted by an "unstipulated reward" for the 
deceased's services. 

In my opinion, the proposed resolve, if enacted, would be 
constitutional. 



Governor. 

1926 
May 21. 



Constitutional Law — Time of Taking Effect of a 

Statute. 

The Legislature has not the constitutional power to provide that an act shall take 
effect as of a date prior to its passage, although the act might be made to 
operate retroactively. 

You have submitted to me for examination and report a oovi'r^r 
Senate bill printed as House Bill No. 1479, entitled "An 
Act authorizing annual allowances to commissioned officers 
of the National Guard for uniforms." 

The purpose of this bill is to provide for the payment, as 
of April first in each year, of an allowance, to each com- 
missioned officer in the National Guard who served for the 
year preceding, of a maximum of thirty-five dollars for 
uniforms. The bill is of such a character that a retroactive 
effect given to its terms by general provisions would not 
make it unconstitutional. The bill, however, provides 
specifically in section 2: "This act shall take effect as of 
April first of the current j^ear." It was not passed to be 
enacted until May 19th. It has an emergency preamble 
declaring it to be an emergency law, necessary for the 
immediate preservation of the public convenience. 

It is provided in Mass. Const. Amend. XLVIII, under the 
heading The Referendum, I, that — 

No law passed by the general court shall take effect earlier than ninety- 
days after it has become a law, excepting laws declared to be emergency 
laws and laws which may not be made the subject of a referendum petition. 

The plain implication of the provisions under the heading 
// Emergency Measures is that such laws are to take effect 



102 OPINIONS OF THE ATTORNEY-GENERAL. 

upon their passage. Furthermore, Mass. Const., pt. 2nd, 
c. I, § I, art. II, provides: — 

No bill or resolve of the senate or house of representatives shall become 
a law, and have force as such, until it shall have been laid before the 
governor for his revisal. 

It further provides that if he approves he shall signify his 
approbation by signing it, and if not, then if two-thirds of 
both branches of the Legislature upon reconsideration so 
vote, it "shall have the force of a law." See also G. L., 
c. 4, § 1; Opinion of the Justices, 3 Mass. 567; ibid., 3 Gray, 
601, 606, 607; Kennedy v. Palmer, 6 Gray, 316; McLaughlin 
V. Newark, 57 N. J. L. 298. 

Because of its inconsistency with the constitutional pro- 
visions cited above, I am of the opinion that, irrespective 
of the question whether the Legislature has the power to 
declare that a bill shall take effect as of a date prior to its 
passage, the enacting clause of the instant bill is beyond the 
power of the Legislature. The difficulty is, however, one 
which may readily be cured by amendment, since, as I have 
said, the nature of the bill is such that it may properly be 
made to operate retroactively. Spaulding v. Nourse, 143 
Mass. 490; Adams v. Adams, 211 Mass. 198. 



Constitutional Law — Eminent Domain — "Taking." 

The word "taking" as used in Mass. Const. Amend. XXXIX, may be construed in 
a comprehensive sense as including acquisition of private property for a public 
use by purchase as well as by eminent domain. 

To the You have referred to me for examination and report 

(jovernor. ^ 

M^fk. House Bill No. 1480, entitled "An Act relative to the widen- 

ing of Bridge Street in the city of Haverhill." 

This bill, in section 1, authorizes and directs the county 
commissioners of the County of Essex to lay out, widen and 
construct Bridge Street in the city of Haverhill, and pro- 
vides that for that purpose they may "take in fee by eminent 



JAY R. BENTON, ATTORNEY-GENERAL. 103 

domain under chapter seventy-nine of the General Laws by 
one or more takings, or by purchase or otherwise, the land 
and property" therein specified and described, the same 
being stated to be more land and property than are needed 
for the actual construction of the street, and no more in 
extent than would be sufficient for suitable building lots on 
the street; and it is also provided that after appropriating 
for the street so much of the specified and described land 
and^ property as is needed therefor, the county commis- 
sioners may sell the remainder. Provision is made in the 
following sections for payment of the costs and expenses, not 
to exceed fifty thousand dollars, assessment upon and pay- 
ment by the city of Haverhill of two-thirds of the cost, pay- 
ment of the remaining cost by the county, and the issuing 
of bonds and notes by the county and the city. Section 5 
provides that the act shall take effect upon its acceptance 
by the county commissioners, provided that such acceptance 
occurs during the current year. 

Mass. Const. Amend. XXXIX makes the following pro- 
vision : — 

The legislature may by special acts for the purpose of laying out, 
widening or relocating highways or streets, authorize the taking in fee 
by the Commonwealth, or by a county, city or town, of more land and 
propertj^ than are needed for the actual construction of such highway 
or street: provided, however, that the land and property authorized to be 
taken are specified in the act and are no more in extent than would be 
sufficient for suitable building lots on both sides of such highway or 
street, and after so much of the land or property has been appropriated 
for such highway or street as is needed therefor, may authorize the sale 
of the remainder for value with or without suitable restrictions. 

The provision in section 1 authorizing the county com- 
missioners to take in fee by eminent domain, or by purchase 
or otherwise, the land and property specified, which is 
stated to be more than is needed for the actual construction 
of the street, since the property which is not needed for the 
street is not to be acquired for a public purpose, is beyond 
the power of the Legislature unless it is authorized by Mass. 



104 OPINIONS OF THE ATTORNEY-GENERAL. 

Const. Amend. XXXIX; and it is not so authorized unless 
it is a "taking in fee," within the meaning of the words as 
used in the amendment. The meaning of the word ''tak- 
ing," as used in a statute authorizing a railroad to "purchase 
or otherwise take in fee" land for a station, was carefully 
considered by the court in Saltonstall v. New York Central 
R.R. Co., 237 Mass. 391, 394, 395, in which the court indi- 
cated its view to be that the word "taking," used in its 
comprehensive sense, may include acquisition of private 
property for a public use either by purchase through private 
negotiation or by seizure through the exercise of eminent 
domain. The court there pointed out that an agreement 
of parties for purchase, effected under the terms of statutory 
language similar to that used in section 1 of this bill, must 
have been made in view of knowledge by all concerned that 
the right to exercise eminent domain was present as an 
element to be taken into account in the bargaining, and that 
the right to acquire title to property for public use by nego- 
tiation rather than by resort to a formal taking relates to 
the means rather than the end, and does not affect the use 
to which the property is to be put when acquired nor the 
rights of others arising from such use. 

Mass. Const. Amend. XXXIX amends Mass. Const., pt. 
1st, art. X, which provides expressly that "whenever the 
public exigencies require that the property of any individual 
should be appropriated to public uses, he shall receive a 
reasonable compensation therefor," and contains other 
provisions which are regarded as a source of the rule that 
the expenditure of public money must be for a public pur- 
pose. Lowell V. Boston, 111 Mass. 454, 461, 462. The 
effect of Mass. Const. Amend. XXXIX necessarily is to 
make an exception to each of these constitutional principles. 
I see no reason for limiting the exception to the rule which 
requires the expenditure of public funds to be for public 
uses to those cases only where land is taken rather than 
acquired by agreement with the owner. The primary pur- 
pose of Mass. Const. Amend. XXXIX was to do away with 



JAY E. BENTON, ATTORNEY-GENERAL. 105 

all constitutional obstacles to the acquisition of property by 
public authority under the circumstances to which the 
amendment relates. The accomplishment of such acquisi- 
tion by negotiation rather than by a formal taking, as the 
court has stated, relates to the means rather than the end. 
In my opinion, therefore, while the question cannot be free 
from doubt, the word "taking," as used in Mass. Const. 
Amend. XXXIX, may properly be construed in a compre- 
hensive sense as including all forms of acquisition. 



Labor and In- 
dustries. 



Weekly Wages paid by Check — Valid Set-off under 
G. L., c. 149, § 150. 

Payment of weekly wages by check, if the employee assents thereto, is permitted 
under G. L., c. 149, § 148. It is not a valid set-off under G. L., c. 149, § 150. 

You state that a railroad company to which the provi- '^iJ^^l^^'^ 
sions of G. L., c. 149, § 148, as amended, are applicable has 
announced its intention to discontinue payment of wages of u^ylr 
employees in currency and to make payment by check. 
You inform me that "some of the employees reside in re- 
mote townships of the State, where, it is alleged, it will not 
be possible for them to be paid according to these require- 
ments of the statute, and others, because of the nature of 
their duties, may not be able to reach the banks with which 
arrangements have been made by the railroad company 
for the cashing of pay checks, within the period fixed by 
law." You request my opinion upon the following ques- 
tions : — 

1. If payment of wages by check is tendered to employees on seventh 
day after wages are earned and facihties are not available to cash the 
check, or nature of employment prevents this from being done until the 
eighth or ninth day after they are earned, is it a violation of G. L., c. 149, 
§ 148? 

2. Is payment of wages by check permitted by this statute? 

3. Is payment by check a "valid set-off" as alluded to in G. L., c. 149, 
§ 150? 



k 



106 OPINIONS OF THE ATTORNEY-GENERAL. 

G. L., c. 149, § 148 (as amended by St. 1921, c. 51, St. 
1923, c. 36, St. 1924, c. 145, and St. 1925, c. 165) and § 150, 
in those portions applicable, provide as follows : — 

Section 148. Every person engaged in carrying on . . . within the 
commonwealth a , , . railroad . . . shall pay weekly each employee 
engaged in his business, . . . the wages earned by him to within six 
days of the date of said payment if employed for six days in a week or to 
within seven days of the date of said payment if employed seven days 
in the week, . . . No person shall by a special contract with an employee 
or by any other means exempt himself from this section. . . . 

Section 150. . . . On the trial (on complaint of the Department of 
Labor and Industries for violation of § 148) no defence for failure to pay 
as required, other than the attachment of such wages by trustee process 
or a valid assignment thereof or a valid set-off against the same, or the 
absence of the employee from his regular place of labor at the time of 
payment, or an actual tender to such employee at the time of the payment 
of the wages so earned by him, shall be valid. 

Section 148 does not specifically require the payment of 
wages in cash or forbid the issuance of checks in payment 
thereof. 

In its legal import, the term "payment" means the full 
satisfaction of a debt by money, but that is payment which 
the parties contract shall be accepted as payment. First 
National Bank v. Watkins, 154 Mass. 385, 387; Hill v. 
Fuller, 188 Mass. 195, 200. 

When a debt is payable in dollars, it is payable in what- 
ever the laws of the United States declare to be legal tender. 
Miller v. Lacy, 33 Tex. 351. A check on a bank, handed 
by the debtor to the creditor and deposited by the creditor 
in his bank, is not cash payment. Breck v. Barney, 183 
Mass. 133, 137. 

A check is not in itself money. It is an order for the 
payment of money. G. L., c. 107, § 208. Bullard v. 
Randall, 1 Gray, 605, 606; Minot v. Russ, 156 Mass. 458, 
459. If taken, treated and received in payment as money, 
it may be regarded as the equivalent of a money payment 



JAY R. BENTON, ATTORNEY-GENERAL. 107 

{Wall V. Lakin, 13 Met. 167; Cushman v. Libbey, 15 Gray, 
358, 361); but not otherwise {Dennie v. Hart, 2 Pick. 204). 

A check is merely evidence of a debt due from the drawer, 
and its mere receipt is not payment of the debt for which it 
is dehvered. Taylor v. Wilson, 11 Met. 44, 51; Feinberg v. 
Levine, 237 Mass. 185, 187; National Wholesale Grocery Co. 
V. Mann, 251 Mass. 238, 250; Keystone Grape Co. v. Hustis, 
232 Mass. 162, 165; Ansin v. Mutual Life Ins. Co., 241 
Mass. 107, 111; Shea v. Manhattan Life Ins. Co., 224 Mass. 
112. It is only conditional payment. Weddigen v. Boston 
Elastic Fibre Co., 100 Mass. 422; Houghton v. Boston, 159 
Mass. 138; Goodwin v. Mass. Loan etc. Co., 152 Mass. 189, 
201. A certified check, if certified for the benefit of the 
drawer, is not payment. Minot v. Russ, 156 Mass. 458. 

The acceptance of a check implies an undertaking to use 
due diligence in presenting it for payment {Houghton v. 
Boston, 159 Mass. 138, 142; G. L., c. 107, § 209) and in 
giving notice of dishonor; and if the party for whom it is 
received sustains loss by want of such diligence, it will be 
held to operate as actual payment. Taylor v. Wilson, 11 
Met. 44; Small v. Franklin Mining Co., 99 Mass. 277. If 
a check is given and received by agreement of the parties, 
in settlement of a debt, it is payment. Barnard v. Graves, 
16 Pick. 41 ; Getchell v. Chase, 124 Mass. 366. 

Presentment for payment and receipt of the amount would 
be evidence of acceptance upon the terms on which it was 
given {Illus. Card & Nov. Co. v. Dolan, 208 Mass. 53, 54), 
and payment on presentation would relate back to the date 
when the check was given {Hunter v. Wetsell, 17 Hun 
[N.Y.], 135). 

Whether a check is payment, and is to be considered as 
money, depends upon the understanding of the parties to 
the transaction. If an employee declines to accept the 
check at the time payment is due under the statute, the 
check is not a payment. 

Section 150, pertaining to trials for violation of section 
148, forbids any defense other than those therein recited, 



108 OPINIONS OF THE ATTORNEY-GENERAL. 

namely, an attachment by trustee process, a valid assign- 
ment, a valid set-off against the same, absence of employee 
from regular place of labor at time of payment, or an actual 
tender to the employee at time of payment. 

A set-off is a cross claim or demand which a defendant 
holds in his own right against a plaintiff, recoverable in an 
action of contract, which, because so unconnected with the 
plaintiff's claim, could not be shown at common law in 
payment or reduction of the amount due. The right to 
set-off exists only by statute. Cook v. Mills, 5 Allen, 36, 
37; American Bridge Co. of New York v. Boston, 202 Mass. 
374, 375. The nature of such a claim is described in G. L., 
c. 232, §§ 1-11, as a claim, express or implied, for property 
sold, for money paid, for money had and received, for ser- 
vices performed, and for an amount which is liquidated or 
may be ascertained by calculation. It is substantially a 
cross action; an independent claim. Cutter v. Middlesex 
Factory Co., 14 Pick. 483, 484; Goldthwait v. Day, 149 Mass. 
185, 187. Payment is not ground for set-off, and is available 
only by way of plea. Jewett v. Winship, 42 Vt. 204. De- 
livery of a check as payment, therefore, is not a claim in set-off. 

A tender is the offer of everything which the creditor is 
entitled to receive in satisfaction of a debt, so that the 
creditor may reduce it to possession. Sands v. Lyon, 18 
Conn. 18. The debtor cannot require the creditor to call 
upon a third party for the money any more than the creditor 
can compel the debtor to make a tender to a person whom 
he should appoint, instead of himself. By depositing the 
money in the hands of a stakeholder who agrees to perform 
the service, the debtor does not reheve himself of respon- 
sibility on account of the debt. The debt is not extin- 
guished by the tender. Town v. Trow, 24 Pick. 168. The 
general rule is, that an offer of a bank check for the amount 
due is not a good tender (38 Cyc. 146), nor a deposit in a 
bank, if the obligation is not payable at such depositary 
(p. 152). A tender of a check, therefore, if not agreed to, 
is not a tender of payment of wages at the time of payment. 



JAY R. BENTON, ATTORNEY-GENERAL. 109 

In describing the requirement of a weekly payment of 
wages, the court said, in Mutual Loan Co. v. Martell, 200 
Mass. 482, 485, that "it has been deemed important that 
they be received by the employee regularly and promptly 
after they are earned." Insomuch as this may be said to be 
an expression of one of the intents of the statute, the en- 
forced acceptance of a check in payment of weekly wages is 
in opposition to the principle of the statute, in that it sub- 
jects the employee to certain legal responsibilities with 
respect to the presentation of the check and to delay in the 
prompt receipt of money for wages earned, where facilities 
for cashing the check are unavailable or where the nature 
of the employment prevents presentation. 

Although there is no obligation to pay in lawful money 
if the employee is willing to accept a check, the use of a 
check, instead of currency, gives rise to the question whether, 
in each instance, depending upon the intention and conduct 
of the parties, the check was given and received as payment, 
within the meaning of the statute. The employee, in my 
opinion, is entitled to be paid his wages in cash unless he 
agrees to be paid in some other medium. 

Answering your interrogatories, I am of the opinion, 
therefore, that payment of wages by check, if accepted in 
payment, tendered at time of payment and cashed on a 
later date, is not a violation of G. L., c. 149, § 148; if not 
so accepted and cashed, it is; that payment of wages by 
check is permitted under the provisions of G. L., c. 149, 
§ 148, if the employee assents thereto; that payment by 
check is not a "valid set-off" under the provisions of G. L., 
c. 149, § 150. 



110 opinions of the attorney-general. 

Constitutional Law — County Retirement Systems. 

A bill amending G. L., c. 32, § 20, as amended by St. 1924, c. 281, § 2, by including 
public officers in the definition of employees, validating the membership in 
any county retirement system of public officers who had theretofore presump- 
tively entered the system, and giving to other public officers the opportunity 
to become members, would be constitutional, if enacted. 



To the 
Governor. 



You have referred to me for examination and report 
Mayls. Senate Bill No. 307, entitled ''An Act establishing the 

status of certain officials and public officers in respect to 
certain county retirement systems." 

This bill, in section 1, amends G. L., c. 32, § 20, as amended 
by St. 1924, c. 281, § 2, in its definition of the word "em- 
ployees" by substituting the following definition: — 

"Employees," any persons permanently and regularly employed in 
the direct service of the county whose sole or principal employment is in 
such service, except teachers employed in any day school conducted 
under sections twenty-five to thirty-seven, inclusive, of chapter seventy- 
four, and also any officials or public officers whose compensation is paid 
by the county, whether employed or appointed for a stated term or 
otherwise, except, in counties other than Worcester, an official or public 
officer elected by the people. 

Section 2 validates the membership in any county retire- 
ment association of every person who "presumptively" 
entered the system in so far as such membership was invalid 
by reason of his being a public officer, and ratifies the acts 
of any county retirement association in connection there- 
with. Section 3 provides that any public officer who has 
not presumptively entered such system shall be admitted 
to membership on request, if otherwise eligible, and there- 
upon shall, upon retirement, be entitled to pension benefits 
for prior service. 

Senate Bill No. 307 as originally passed to be enacted was 
returned by Your Excellency at the request of the Senate, 
and my opinion was requested as to its constitutionality. 
In response to that request I stated my opinion to be that 
the bill was defective because, literally interpreted, it in- 
cluded justices of district courts within its terms requiring 



JAY R. BENTON, ATTORNEY-GENERAL. Ill 

retirement at the age of seventy, and was unconstitutional 
because of certain discriminations made between public 
officers who have heretofore been treated as members of the 
retirement association and other public officers. The bill 
as originally passed to be enacted has since been amended 
by adding section 3, which, in my opinion, removes the 
objection based on unconstitutional discrimination, but 
no change has been made in the definition of the word 
"employees," which, as I have stated, if literally inter- 
preted must include justices of district courts. 

As I stated in my opinion to the Senate, the bill, if en- 
acted with such a definition of the word "employees," 
would not be held to be wholly invalid on that account, but 
the court would, in my judgment, apply the principle that 
the statute must be interpreted as intended to apply only 
to that class of persons to whom it would be constitutionally 
applicable. This principle of construction is well estab- 
lished, and the bill, if enacted, therefore, would necessarily 
receive the construction that justices of district courts are 
not included within the definition of the word "employees." 
Apparently this is in accordance with the intention of the 
Legislature. I see no urgent reason, therefore, why the 
bill in its present form should not receive Yoiu* Excellency's 
approval. 



112 opinions of the attorney-general. 

Compulsory Automobile Liability Security — Com- 
missioner OF Insurance — Classification of 
Owners of Motor Vehicles for Purposes of 
Liability Insurance — Rates for Policies and 
Bonds. 

Fleet rates, so called, may not be established. 

Classification based upon the locality in which a motor vehicle is kept is not neces- 
sarily unreasonable. 

Classification based upon a merit rating plan, so called, is not necessarily unreason- 
able if suflScient data is available to the Commissioner to enable him to estab- 
lish such classification with reasonable accuracy and certainty. 

The Commissioner of Insurance is not required to e.stablish schedules of charges 
for premiums on bonds differing in amount from those established for policies. 

m°ss^ne?o?' You havG asked my opinion upon certain questions rela- 

^T926*°''''' tive to the duties imposed upon you by law to establish 

junej. classifications of motor vehicle liabiHty insurance risks and 

a schedule of premium charges, under the provisions of 

St. 1925, c. 345, and G. L., c. 175, § 113B. 

Such classifications and schedule are to be used and 
charged by all companies authorized to transact liability 
insurance on motor vehicles or to transact a surety business, 
under G. L., c. 175, § 47, cl. 4, and § 105, which propose to 
issue bonds for the owners of motor vehicles, under St. 
1925, c. 346, commonly known as the Compulsory Auto- 
mobile Insurance Law. 

1. The first set of facts to which you direct my attention 
and your question as to the law applicable thereto are as 
follows : — 

(a) It is now the practice of some of the liability insurance companies 
to issue automobile habihty policies at what is termed a "fleet" rate; 
that is, a given insured owning a certain number of motor vehicles re- 
ceives automobile liability insurance at a lesser rate or for a lesser premium 
in the aggregate than an insured who owns only one car. 

(1) Under the provisions of the said statutes may the Commissioner 
lawfully approve "fleet" rates, as outlined in (a), supra? 

St. 1925, c. 345, § 2, provides, in part: — 

The said commissioner shall examine said classifications and pre- 
mium charges to determine whether such classifications are fair and 



JAY R. BENTON, ATTORNEY-GENERAL. 113 

reasonable and such premium charges are adequate, just, reasonable 
and non-discriminatory. 

He shall, after a full hearing and due investigation, establish such 
classifications of risks as shall be fair and reasonable and such schedule 
of premium charges as shall be adequate, just, reasonable and non- 
discriminatory which shall be used and charged by all such companies 
for such motor vehicle liability policies and bonds issued or executed 
in connection with the registration of motor vehicles or trailers for the 
first year to which section one A of said chapter ninety shall apply, 
and shall be in force until modified, altered or revised by the said com- 
missioner under section one hundred and thirteen B of chapter one 
hundred and seventy-five of the General Laws or, in the event of a petition 
for review under section three, until otherwise ordered by the court. 

The terms of the various sections of St. 1925, c. 346, 
which by amendments to G. L., c. 175, deal with the same 
classifications and schedule that the Commissioner is re- 
quired to make under St. 1925, c. 345, § 2, do not alter, 
but confirm in specific language, the character of the clas- 
sification and schedule which he is to establish under the 
former statute. The classification of risks is to be "fair and 
reasonable," and the schedule of rates or premium charges 
is to be "adequate, just, reasonable and non-discrimina- 
tory." These provisions are in harmony with the general 
principles of law governing classification for proper purposes 
by legislative authority. When established by the Com- 
missioner, the classification is, by the terms of the statute, 
to be used and the rates made are to be charged by all 
companies for motor vehicle liability poUcies and bonds 
until changed or modified by the Conmiissioner. 

Apart from the particular statutes under consideration, 
rate fixing for premium charges on insurance poUcies and 
necessary classification for that purpose have been held a 
proper exercise of the general police powers inherent in a 
State Legislature. The classification must not be unreason- 
able nor arbitrary and must rest on a real difference in 
subject-matter, having some relation to the classification 
made and the objects sought to be obtained by the legisla- 
tion. German Alliance Ins. Co. v. Kansas, 233 U. S. 389. 



114 OPINIONS OF THE ATTORNEY-GENEEAL. 

An administrative board or commissioner, acting under 
legislative authority, may exercise the power given to them 
or him to make classifications, but only within the same 
limitations as apply to the Legislature. St. 1925, cc. 345 
and 346, which to a certain extent must be read together in 
determining the legislative intent of each, expressly set 
out, in terms aptly stating the general principles of law, 
the mode in which the Commissioner is to use his authority 
in connection with the powers of rate fixing which have been 
entrusted to him. An application of these principles of 
law determines the answer to your first question. 

It has been held in previous opinions of Attorneys- 
General that the practice of insurance companies in charg- 
ing premiums to insurants of the same general class, based 
solely on the amount of business furnished by the insureds, 
was an improper one, because a discrimination was made 
upon no reasonable basis and was in violation of statutes 
forbidding the giving of special favors by companies to 
insureds or prospective buyers of policies. V Op. Atty. 
Gen. 543; VII Op. 214. I assume, from the facts stated 
in your letter, that a "fleet" rate, so called, discriminates 
between insurants of the same class, and permits the pay- 
ment of a smaller premium charge per car to such insureds 
as take out a pohcy or policies covering more than one car 
than is exacted from the owner of a single car, solely by 
reason of the difference in the number of cars insured. The 
duty of determining the facts in regard to the various situa- 
tions arising from the sale of poHcies rests upon you, but I 
am of the opinion that the establishment of a rate for pre- 
mium charges of a lower amount than that allowed for a 
single car of the same general class, based solely upon the 
fact that one insured had more cars covered than did the 
other, would not, as a matter of law, be ''reasonable," 
within the meaning of the statute. 

I answer your first question in the negative. 

2. Your second statement of facts and the question based 
thereon are — 



JAY R. BENTON, ATTORNEY-GENERAL. 115 

(6) The premium rates now charged for automobile liability insurance 
are fixed not only with reference to the type of motor vehicle but also 
with reference to the locality in which the vehicle is usually kept. 

(2) Do the said statutes require as a matter of law that the premium 
charges be uniform throughout the Commonwealth for a given classi- 
fication or may the rates be established with respect to the territory in 
which the vehicle is usually kept, assuming that the Commissioner finds 
that there is a reasonable basis in fact for territorial rating? 

It cannot be said that a mode of classification of risks 
based upon the locality in which a motor vehicle is kept 
would necessarily be unreasonable. It may be that the 
customary keeping of a motor vehicle in a rural district has 
a tendency to make the hazard of its use less great than one 
habitually kept in a city. Such a mode of classification 
is not prohibited by the statutes. 

3. Your third statement of fact and question are — 

(c) Some companies grant automobile liability insurance to a par- 
ticular insured at a reduced rate or premium under what is called a 
"merit rating plan"; that is, to an insured who has what the company 
considers a favorable record for careful operation of a motor vehicle. 

(3) Under the said statutes may the Commissioner lawfully estab- 
lish premium charges which will be subject to variation at the option 
of the companies if in their judgment the insured qualifies under a "merit 
rating plan," as described in (c), supra? 

If, as a matter of fact, it be possible to ascertain with 
reasonable accuracy from sufficiently reliable data that 
motor vehicle operators possessing certain well defined 
attainments, experience and demonstrated skill in opera- 
tion are, to a clearly defined extent, less hazardous risks 
than other operators, it could not well be said that a classi- 
fication and schedule of premium charges, lower than for 
others, established by the Commissioner for cars driven solely 
by such operators, would be unreasonable or discriminatory. 

If, however, as a matter of fact, in the judgment of the 
Commissioner data is not available or experience is not 
tabulated in sufficient quantities to demonstrate with 
reasonable certainty the lessening in hazard to the insurer 
by the driving of cars by such persons instead of others, 



116 OPINIONS OF THE ATTORNEY-GENERAL. 

the adoption of such a classification, with incidental lower 
premium charges, would be unfair, unreasonable and dis- 
criminatory. 

To adopt a classification based merely upon the so-called 
merit rating plan of individual companies, not of general 
use or recognition, would not be a fair, reasonable or non- 
discriminatory mode of procedure on the part of the Com- 
missioner. To establish a classification on a so-called merit 
rating basis which was not itself prescribed by the Com- 
missioner but was an adoption by him of a system used by 
individual companies, resting only upon the judgment of 
such companies as to what did or did not constitute conduct 
or ability entitling an insured to the lower rate, could not 
be said to be fair, reasonable or non-discriminatory, within 
the meaning of the statute. Obviously, such an adoption of 
a merit rating plan set up and controlled by companies 
themselves would be open to great abuse, and would in 
reality substitute the opinion of others for the exercise of 
the judgment or discretion vested in the Commissioner by 
the statutes. 

As your third question is worded I answer it in the 
negative. 

4. Your fourth statement of fact and question based 
thereon are — 

(d) At the present time, I understand, no corporate surety company 
executes a bond as surety conditioned on the satisfaction by the principal 
of judgments rendered against him arising out of the operation of a 
motor vehicle. The condition of the bond and the coverage of the policy 
required of appUcants for registration by said chapter 346 are substantially 
the same. The question has been raised whether under the provisions 
of said sections the Commissioner may lawfully establish premium charges 
to be paid to a corporate surety company for executing a bond which are 
less than those established by t^e Commissioner for policies issued by an 
insurance company, having in mind the common practice of corporate 
surety companies ordinarily not to execute a bond as surety unless the 
principal deposits with it approved collateral or furnishes it with suitable 
indemnity agreements. 

(4) Do the said statutes require as a matter of law that the premium 
charges must be identical for policies and bonds, or may the Commis- 



JAY R. BENTON, ATTORNEY-GENERAL. 117 

sioner establish one rate of coverage under a policy in respect to a certain 
classification and a different rate for coverage under a bond executed in 
respect to a motor vehicle falling within the same classification? 

Although the facts which you set forth indicate that the 
practice relative to the execution of surety bonds is not the 
same as that which prevails in relation to the issuing of 
policies of insurance, in that the person covered by the bond 
is required to deposit collateral while the insured is not, I 
am of the opinion that the intent of the Legislature, as 
indicated by the language used in St. 1925, cc. 345 and 346, 
was that there should be a single schedule of premium 
charges applicable alike to companies issuing policies and 
those executing bonds, for the purposes of the Compulsory 
Automobile Insurance Law, so called. The condition of a 
bond and the provision of a policy issued for such purposes 
are, as you state, not dissimilar. The existence of the com- 
mon practice of surety companies, to which you refer, was 
doubtless not unknown to the Legislature, and I am inclined 
to the view that, had the Legislature desired that different 
premium charges for similar risks under identical classifica- 
tions should be created by the Commissioner, it would have 
so stated in the statutes under consideration. 

The language employed by the Legislature in both statutes 
appears to indicate that it was not intended that insurance 
companies and surety companies should be treated differ- 
ently in respect to the establishment of premium charges 
for the same kinds of risks, as to which the ultimate duty 
of payment by both sorts of companies is virtually the same. 
No explicit authorization is given to the Commissioner to 
differentiate between the two types of companies in regard 
to the premium charges for identical risks, and I am of the 
opinion that no implied authority inheres in the Commis- 
sioner in this respect from the statutes as they stand. In- 
surance companies and surety companies described in St. 
1925, c. 345, § 1, are referred to together in section 2 as 
"such companies," and the classification and charges 
established are provided to "be used and charged by all 



118 OPINIONS OF THE ATTORNEY-GENERAL. 

such companies for such motor vehicle Habihty policies and 
bonds issued or executed in connection with the registration 
of motor vehicles." The words "policies or bonds" are 
repeatedly used throughout both statutes as if their pre- 
miums were to stand upon the same basis. 

I answer your fourth question to the effect that the 
statutes do not contemplate different schedules of charges 
for premiums on bonds from those on policies. 



Registration of Motor Vehicles — Partnerships — 

Application. 

Under G. L., c. 90, § 2, the signing of an application for registration of a motor 
vehicle owned by a partnership may be in the partnership name by one of the 
partners, when the partnership has a usual firm name; but if no firm name is 
in use, all the partners must sign. 



To the Com 
missioner 



June 14. 



'^f You have asked my opinion relative to the legality of 
Public Works. ^ practice prevailing in the Registry of Motor Vehicles in 
regard to the registration of motor vehicles owned by part- 
nerships. Your statement of the practice is as follows : — 

It has been the custom of the Registry to allow either or any partner 
in a co-partnership to sign the apphcation, provided, of course, the 
co-partnership name is given in answer to question 13 on the registration 
blank. In case of a joint ownership botli owners are required to sign. 

G. L., c. 90, § 2, provides: — 

Application for the registration of motor vehicles and trailers may be 
made by the owner thereof. The application shall contain ... a 
statement of the name, place of residence and address of the applicant. 

No specific provision is made with relation to owners who 
are partnerships. 

In Crompton v. Williams, 216 Mass. 184, the Supreme 
Judicial Court, in construing the requirement that an appli- 
cation for registration shall contain the name, place of 
residence and address of the applicant, under St. 1909, 
c. 534, § 2, held that an individual's use, in good faith, of the 
recognized trade name under which he did business, in his 



JAY R. BENTON, ATTORNEY-GENERAL. 119 

application and registration was a compliance with the 
statute. The court said : — 

A corporation, a partnership or an individual may adopt a trade 
name under which business can be transacted, actions instituted, or 
defended, and the title to property acquired and transmitted. . . . 
The plaintiff's application and the registration followed the name in 
which he did business. 

The court went on to say that the use of a fictitious name 
for the purpose of concealing identity would not be a com- 
pliance with the statute "because the record would not 
show, nor the certificate contain, a descriptive statement by 
which the true owner could be ascertained." 

Partnerships are commonly operated under a firm name. 
When the ownership of the vehicle is in a partnership which 
adopts and uses a partnership name, the signing of the appli- 
cation for registration with the partnership name by one 
of the partners is a sufficient compliance with the provisions 
of law relative to registration. When no such partnership 
name is in fact adopted and used by the firm, the names of 
all the partners should be signed to the application. 

I am of the opinion that the practice, as described in your 
letter, which you are now pursuing is a proper one. 



120 opinions of the attorney-general. 

Teachers' Retirement Association — Effect on Pay- 
ments OF Death of Applicant for Retirement 

OCCURRING before AcTION TAKEN UPON APPLICATION 

— Apportionment of Instalments. 

The retirement of a member unqualifiedly eligible to retire because of age takes 
effect at the date fixed in his application, and requires no action of the retire- 
ment board in order to become effective; it is therefore not affected by the fact 
that the applicant for retirement dies before action by the board is taken upon 
such application. 

The estate of such a member who dies after the date for retirement fixed by his 
application is not entitled to receive the member's assessments under G. L., 
c. 32, § 11 (4). 

The estate, under such circumstances, the member having elected to receive an 
annuity under G. L., c. 32, § 10 (3) (o), is only entitled to the ratable propor- 
tion of the allowance for the period between the dates of retirement and death, 
with any sum held by the board in excess of the amount usable to found an 
annuity. 

Under circumstances otherwise similar, but where the member had elected an 
annuity under G. L., c. 32, § 10 (3) (h), the estate would be entitled, in addi- 
tion, to the sum used to purchase the annuity less the portion of any accrued 
instalment of the allowance which was derived from the annuity. 

To the Com- You have asked my opinion upon certain questions re- 

missioner of ./ i j. , , . 

Ed'^'^^^gtion. lating to retirement allowances under the teachers retire- 
junejs. ment system. The first two questions, which concern a 

single situation, are as follows : — 

If a member of the Retirement Association sixty years of age or over 
filed with the office of the retirement board a written application for 
retirement, on the form provided by the board, stating in the appUcation 
a definite date on which retirement was to take effect, and died subse- 
quent to that date but death taking place before the retirement board 
had taken any action on the application or established the retiring allow- 
ance to which the member was entitled, what amount is due the estate 
if the member elected an annuity to be paid in accordance with the 
provisions of G. L., c. 32, § 10 (3) (a)? 

Shall the retirement board, after the death of the member, determine 
the retiring allowance to which the member was entitled on the retirement 
date designated by him and pay the estate a pro rata amount due for the 
period from that date to the date of death, or shall the retirement board 
return the member's contributions and interest and make no payment 
of pension to the estate? 

It is provided by G. L., c. 32, § 11 (4), that "if a member 
who is not receiving payments under paragraph (1) or (2) 



JAY R. BENTON, ATTORNEY-GENERAL. 121 

of this section" (which the member now in question was 
not) "dies before retirement, the full amount of his assess- 
ments, with regular interest thereon, shall be paid to his 
estate." It is therefore necessary to ascertain whether at 
the date of his death the member had been retired. 

The board, according to your statement of facts, had taken 
no action whatever upon the application for retirement. 
If some action on the part of the board is, by the terms of 
the statute, a necessary step precedent to retirement, the 
member had not, therefore, been retired, and his estate is 
entitled to the benefit of G. L., c. 32, § 11 (4). The member 
was, however, eligible to retire, and had evidenced by his 
application an election to retire at a date selected by him. 
He died subsequently to that date, and if those facts, with- 
out any action by the board, had already brought about a 
retirement at that date, his death before the taking of such 
action did not vacate the retirement, and his estate is not 
entitled to payment under G. L., c. 32, § 11 (4). I am of 
the opinion that the latter view is correct. 

In the original law, St. 1913, c. 832, there were provisions 
for retirement under several difTerent sets of circumstances. 
Thus it was provided that any member on attaining the 
age of sixty years "may retire," section 6 (1); that any 
member at any time after reaching the age of sixty, if in- 
capable of rendering satisfactory service, "may, with the 
approval of the retirement board, be retired" by the em- 
ploying school committee, section 6 (1); and that any 
member on attaining the age of seventy years "shall be 
retired," section 6 (2). St. 1917, c. 233, § 2, added a pro- 
vision that a member, under certain conditions, who before 
reaching the age of sixty, becomes disabled physically or 
mentally, "may, with the approval of the retirement board, 
be retired" by the employing school committee. 

Nowhere in the law as it existed prior to the General 
Laws is to be found any further requirement of action by 
the retirement board to make retirement effective. The 
approval of the board was a condition precedent to retire- 



122 OPINIONS OF THE ATTORNEY-GENERAL. 

ment for disability; but retirement at age seventy was 
compelled by the direct force of the statute, and retirement 
at age sixty was a right of the member which his choice alone 
sufficed to put into operation. 

The present case is governed by that portion of G. L., 
c. 32, § 10 (1), which is as follows: — 

Any member of the association shall, on written application to the 
board, be retired from service in the pubhc schools on attaining the age 
of sixty, or at any time thereafter. 

It will be noticed that the words "shall, on written applica- 
tion to the board, be retired," stand in substitution for the 
words "may retire" which were to be found in St. 1913, 
c. 832, § 6 (1). Presumptively, this change, occurring for 
the first time in the codification of the General Laws, was 
not intended to work a change in the nature of the right to 
retire. Cf. Derinza's case, 229 Mass. 435, 442; Common- 
wealth V. Kozlowsky, 238 Mass. 379, 387. Doubtless the 
commissioners considered it advisable to compel the teacher 
to manifest in writing his election to retire, and for that 
purpose altered the language so as to make such writing a 
prerequisite to retirement. But this conferred no added 
power upon the board. There was an important substan- 
tive change in G. L., c. 32, § 10 (1), traceable through the 
preliminary report of commissioners to consolidate and 
arrange the General Laws, vol. I, pp. 166-7, St. 1918, c. 
257, § 113, and the statutes by which the operation of the 
last cited act was deferred; but it did not affect the aspect 
of this section now under consideration. 

The member's retirement became effective at the date 
fixed in his application, and was not affected by his subse- 
quent death. Had he lived, his allowance would have been 
computed as of that date, and upon the basis of his then 
age. His estate can take nothing under G. L., c. 32, § 11 
(4) . Any other course would, in the long run, bring results 
in contradiction of any mortality table which might be used 



JAY E, BENTON, ATTORNEY-GENERAL. 123 

as the basis of computing annuities under G. L., e. 32, §§8 
(4) and 10 (3). 

If any quarterly instalment of the retirement allowance, 
under G. L., c. 32, § 10 (3) (4) and (5), had accrued prior 
to the member's death, it is now payable to his estate, in 
accordance with G. L., c. 32, § 33. Whether any proportion 
of a quarterly instalment, corresponding to a period of less 
than a quarter, can be paid is a question of more difficulty. 
The statute, by making express provision for quarterly 
payments, has made the annuity, viewed strictly as an 
annual sum, apportionable to that extent. See Wiggin, 
Admr. v. Swett, 6 Met. 194, 202. But there is no express 
provision for the payment, pro rata, of part of a quarterly 
instalment upon the death of a member between quarter 
days; and at common law annuities and like payments are 
not apportionable. Wiggin, Admr. v. Swett, supra; Dexter 
V. Phillips, 121 Mass. 178, 180. 

The general policy of this Commonwealth with respect 
to apportionment is now expressed in G. L., c. 197, § 27 
(see report of the Jomt Special Committee on Consolidating 
and Arranging the General Laws, vol. II, p. 1846, Note), 
as follows : — 

A person entitled to an annuity, rent, interest or income, or his repre- 
sentative, shall have the same apportioned if his right or estate therein 
terminates between the days upon which it is payable unless otherwise 
provided in the will or instrument by which it was created; but no action 
shall be brought therefor until the expiration of the period for which the 
apportionment is made. 

Whether or not this provision is directly applicable to a 
retirement allowance may be a question, but it would prob- 
ably dominate the interpretation of the statute which we are 
considering. One of my predecessors rendered an opinion 
to that effect with respect to the pension of a retired county 
employee. The conclusion is perhaps more easily reached 
because of the consideration that these allowances are plainly 
intended for the daily support of the recipients. See 
Dexter v. Phillips, supra, 180. 



124 OPINIONS OF THE ATTORNEY-GENERAL. 

I am of the opinion that the member's estate is entitled 
to receive the ratable proportion of the allowance for the 
period between the date of retirement and the date of death. 
Also, of course, any sum held by the board in excess of the 
maximum amount which could be used to found an annuity. 
See G. L., c. 32, § 9 (2). 

Your third and fourth questions also concern a single 
situation : — 

In case of the death of the member under conditions exactly as stated 
above, except that the member elected an annuity to be paid in accordance 
with the provisions of G. L., c. 32, § 10 (3) (6), what amount is due the 
estate? 

Shall the retirement board determine the retiring allowance to which 
the member was entitled and pay a pro rata amount of pension due to 
the date of death and also the contributions with interest of the member 
which were used to purchase the annuity, or shall the retirement board 
make no payment of pension but return to the estate the contributions 
with interest? 

As stated above, the member is to be considered retired 
from the date fixed in the application. His estate is entitled 
to receive any sum held in excess of the maximum which 
could be used to found an annuity; a pro rata amount of 
the retirement allowance for the period between retirement 
and death; and the difference between the portion thereof 
which is paid by way of annuity and the whole sum used to 
purchase the annuity. G. L., c. 32, § 10 (3). 

It follows, of course, that the board must determine the 
retirement allowance in each case. 



jay r. benton, attorney-general. 125 

Attorney-General — Advice to County Commissioners 
— Representative Districts — Organization of 
Commissioners for the Purpose of Redistricting. 

It is doubtful whether county commissioners are entitled to seek opinions of the 
Attorney-General, but when they are acting in connection with the division 
of the State into representative districts he may properly render a personal 
opinion with respect thereto. 

Mode of organization of county commissioners, including the filling of vacancies, 
and of proceedings for the purpose of establishing representative districts, 
discussed. 

You request my opinion as to the manner in which your to the county 

^ '' ■* '^ Commissioners 

board should be organized for the purpose of dividing count^^'^*'" 
Hampden County into representative districts. There is j^^^l^^ 
serious doubt whether county commissioners fall within that 
class of "state departments, officers and commissions" to 
whom the Attorney-General is the duly constituted legal 
advisor. See G. L., c. 12, § 3. However, inasmuch as in 
this instance you are, while acting only within your county, 
participating, nevertheless, in the constitutional process 
whereby the entire State is divided into districts for the 
election of representatives, who are State officers, it seems 
to me that I may properly express to you my personal views, 
for such weight as you may see fit to ascribe to them. Cf. 
V Op. Atty. Gen. 9, 12. 

Mass. Const. Amend. XXI assigns the first Tuesday of 
August, next, as the date at which the county commis- 
sioners are to assemble and proceed to make the apportion- 
ment. Whatever action you may take prior to that date 
will be unofficial, preliminary and without any legal sig- 
nificance. It is the board of commissioners as it may be 
constituted when it assembles on that date which will 
exercise the power delegated by the Constitution. 

You state that there are at present two commissioners 
and two associate commissioners, there being a vacancy, 
created by death, in the office of one commissioner. If, 
prior to the first Tuesday of August, you see fit to fill that 
vacancy in the manner authorized by G. L., c. 54, § 144, a 
different state of affairs will then exist from that upon which 



126 OPINIONS OF THE ATTORNEY-GENERAL. 

your present questions are predicated. It is therefore not 
possible to give at this time an unquaHfied reply to your 
inquiry. 

G. L., c. 34, § 12, provides as follows: — 

In case of a vacancy, inability to attend, or interest in a question 
before the commissioners, or if any part of a highway relative to which 
they are to act lies within the town where a commissioner resides, the 
members qualified to act shall give notice to one or both the associate 
commissioners, as the case may be, who shall then act as commissioners. 
They may, however, receive a petition, issue an order of notice thereon, 
or take a recognizance, whenever two members are competent to act. 
If they cannot otherwise organize, residence shall not disqualify. 

It is my understanding of the legislative intent that the 
board should, whenever it assembles, be composed of three 
members present and participating in its dehberations. 
When there is an associate commissioner able to attend and 
not disqualified, no two commissioners should undertake 
alone to organize and act. If there is a single vacancy, 
within the meaning of the above section, among the com- 
missioners, the remaining two commissioners should summon 
one of the associate commissioners to attend, and, assuming 
that both associate commissioners are able to attend and 
not disqualified, have absolute power to choose which one 
to call in attendance. The board should never be composed 
of more than three persons. Only in case there is only one 
commissioner able to act, should both associate commis- 
sioners act as commissioners. 

The foregoing will perhaps cover most of the contin- 
gencies as to membership which are likely to arise. I ought 
perhaps to say, in addition, that while the remaining com- 
missioners may perhaps feel that, in view of the importance 
of their duties with respect to redistricting, they ought to 
take the necessary steps to elect a third commissioner under 
G. L., c. 54, § 144, I nevertheless find nothing in the Con- 
stitution or statutes which leads me to believe that they are 
any more bound to do so than they would be if confronted 
only by the ordinary routine duties of their office. 



July 2. 



jay r. benton, attorney-general. 127 

Commissioner of Public Health — Duties in Relation 
TO Buildings of the Norfolk State Hospital. 

Lender St. 1926, c. 391, the Commissioner of Public Health is empowered to con- 
dition and equip the Norfolk State Hospital but not to erect new buildings. 

You request my opinion as to whether or not, under the mtstn^°"^'i 
provisions of St. 1926, c. 391, § 4, you are hmited to the 1926*' 
repair and equipment of existing buildings at the Norfolk 
State Hospital, or whether you are allowed to make addi- 
tions. 

Said section 4 reads as follows : — 

For the purpose of providing immediate care and treatment for persons 
suffering from cancer, the department is hereby authorized to make use 
of the Norfolk state hospital and may suitably condition and equip the 
same. Subject to appropriation, there may be expended for the purposes 
of this section during the current fiscal year a sum not exceeding one 
hundred thousand dollars. 

It is my opinion that by this section the Legislature did 
not intend that you should proceed to erect any new build- 
ings, but that you should proceed to use the buildings as 
they now exist at the hospital. However, I do not beheve 
that you are precluded from connecting the administration 
building with one of the pavilions if it is a fact, found by 
you after study, that this is necessary in order suitably to 
condition and equip the hospital properly to care for and 
treat persons suffering from cancer. 



128 opinions of the attorney-general. 

National Guard — Band — Civilian Function — 
Uniform — Payment. 

The commanding officer of a battalion has no right to "order" its band to play at 
a civilian function. But if such band has received special permission of its 
company commander or other competent authority, it may play at a civilian 
function wearing the uniform of the National Guard, provided such service 
is rendered by the personnel of said band upon their own voluntary venture 
and enterprise and not by virtue of an official order or command; and provided 
further, that compensation for such service, if any, is not to be paid from any 
State or Federal fund or appropriation. 

unt GetS" Y^^ request my opinion as to the right of the command- 
ji?y 8. i^g officer of a battahon of infantry to order the band of said 

battahon to play at a civihan function, wearing the uniform 
of the National Guard. You state that the particular 
question applies to the band of the 372nd Infantry, which 
does not rate a band, but certain members of the head- 
quarters company who are musicians have provided their 
own instruments and have volunteered to act as a band for 
the battalion. These men are regularly enlisted men in 
the headquarters company and are not rated as bandsmen. 
The law of this Commonwealth governing the organiza- 
tion and duties of the militia is found in G. L., c. 33, as 
amended by St. 1924, c. 465. Section 15 vests in the com- 
mander-in-chief the authority to prescribe in orders the 
organization of the Massachusetts Volunteer Militia, the 
designation and location of all units, and the numbers, 
titles, grades and duties of all officers and enlisted men, as 
he deems the interest of the service demands; provided, 
that the organization shall not conffict with the laws of the 
United States relating to the organized militia. Section 
79 (6) provides : — 

The national guard of Massachusetts shall consist of such regiments, 
corps or other units as the commander-in-chief may from time to time 
authorize to be formed, all to be organized in accordance with the laws 
of the United States affecting the national guard and the regulations 
issued by the secretary of war. 

In the absence of an order of the commander-in-chief or 
of a regulation of the Secretary of War designating the play- 



JAY R, BENTON, ATTORNEY-GENERAL. 129 

ing at civilian functions as a part of the duty of militia 
bands or bands of the National Guard, I am of the opinion 
that the commanding officer of the battalion has no right 
to "order" the band in question to play at a civilian function. 

There remains to be considered the question as to whether 
or not this band can lawfully play at a civilian function 
voluntarily while wearing the uniform of the National 
Guard. The use of the uniform of the United States army, 
navy, marine corps, revenue cutter service, coast guard and 
national guard is strictly regulated. See St. 1924, c. 219. 
St. 1924, c. 465, § 112, provides that the uniforms, arms, 
equipments and other property provided by the Common- 
wealth shall be used only for military purposes, under regu- 
lations prescribed by the commander-in-chief, who shall 
provide how and where such property shall be kept and used, 
and shall be returned when ordered by the commander-in- 
chief. Playing at civilian functions cannot ordinarily be 
said to be "military purposes," but section 119 provides 
that "no soldier shall wear or use, except upon military duty 
or by special permission of his company commander or 
other competent authority, any uniform or other article of 
military property belonging to the commonwealth." Sec- 
tion 112 must be construed and interpreted in the fight of 
section 119. It is a general principle of statutory construc- 
tion that a body of laws enacted at one time is to be con- 
strued so as to constitute, so far as practicable, an 
harmonious entity. 

I am accordingly of the opinion that if the band in ques- 
tion has received special permission of its company com- 
mander or other competent authority it may play at a 
civilian function, wearing the uniform of the National 
Guard, provided such service is rendered by the personnel 
of said band upon their own voluntary venture and enter- 
prise and not by virtue of an official order or command ; and 
provided further, that compensation for such service, if any, 
is not to be paid from any State or Federal fund or appro- 
priation. 



130 opinions of the attorney-general. 

Forest Warden — Dismissal. 

A forest warden appointed by a board of selectmen of a town, which appointment 
has been approved by the State Forester, maj' be removed or dismissed at 
any time at the pleasure of the board of selectmen which appointed him. 
The board of selectmen can thereafter appoint another person as forest warden, 
but such appointment will not be effective unless approved by the State 
Forester. 

m?s8*ione?°™f ^^'^ requGst my opinion as to whether or not a forest 
*^i926^^**"^''" warden is subject to dismissal at any time at the pleasure of 
Juiyj.2. ^j^^ board of selectmen which appoints him. 

G. L., c. 48, § 8, as amended by St. 1921, c. 274, provides 
as follows : — 

The mayor in cities and, except as provided in section forty-three, 
the selectmen in towns shall annually, in January, appoint a forest 
warden, and forthwith give notice thereof to the state forester, in this 
chapter called the forester. Such appointment shall not take effect 
unless approved by the forester. When so approved notice of the ap- 
pointment shall be given by the mayor or selectmen to the person so 
appointed. Whoever having been duly appointed fails within seven 
days after receipt of such notice to file with the city or town clerk his 
acceptance or refusal of the office shall, unless excused by the mayor or 
selectmen, forfeit ten dollars. The same person may hold the offices of 
tree warden, selectman, chief of fire department and forest warden. 
Upon the failure of the mayor of a city or the selectmen of a town to 
make such appointment in the month of January, the forester shall 
notify the mayor or selectmen so to do, and if the mayor or selectmen fail 
to comply within fourteen days after receipt of such notice, the forester 
may appoint as forest warden in such city or town a suitable person, who 
shall be a resident thereof. 

Under this statute the power of appointment of the forest 
warden is vested in the board of selectmen in towns, but 
such appointment does not become effective unless approved 
by the State Forester. The power of removal is incident 
to the power of appointment. The general rule is, that 
where a power of appointment is conferred in general terms 
and without restriction the power of removal in the discre- 
tion and at the will of the appointing power, and without 
notice or a hearing, is implied and always exists, unless 



JAY R. BENTON, ATTORNEY-GENERAL. 131 

restrained and limited by some other provision of law or 
by appointment for a fixed term. 

If the exercise of the power of appointment is subject to 
the approval of another board or officer, this does not invest 
the officer or board whose approval is required wdth the 
power to appoint or make it or him responsible for the acts 
of the appointee, and such board or officer, by virtue of the 
requirement of its approval of appointment, is not vested 
with any power to remove. The power of removal remains 
with the appointing power, in this case the board of select- 
men. 

The statute does not provide for a fixed term for forest 
wardens, nor is there any express limitation upon the power 
of removal of such appointee, nor is there any evidence that 
the forest warden is a civil service appointee. I am accord- 
ingly of the opinion that a forest warden appointed by a 
board of selectmen of a town, which appointment has been 
approved by the State Forester, may be removed or dis- 
missed at any time at the pleasure of the board of select- 
men which appointed him. The board of selectmen could 
thereafter appoint another person as forest warden. Such 
appointment, however, would not be effective unless ap- 
proved by the State Forester. 



132 opinions of the attorney-general. 

License to maintain Garage and keep Gasoline — 
Street Commissioners of Boston — State Fire 
Marshal — Appeals — Time for Appeal. 

No appeal to the State Fire Marshal lies from the granting of a garage permit by 
the street commissioners of the city of Boston, under St. 1913, c. 577, and St. 
1914, c. 119. 

Appeals to the State Fire Marshal from the granting of gasoline licenses under 
authority delegated by the Marshal must be taken within a reasonable time. 

What constitutes a reasonable time is ordinarily a question of fact, but may under 
some circumstances be dealt with as a question of law. A delay of a month 
and a half after the issuance of the license, of ten days after the commencement 
of the work, and of seven days after actual notice to the appellant, may not be 
unreasonable. 

Fi^re^MarsibaL You havG requBstcd my opinion as to the extent of your 
July 23. authority to entertain and decide an appeal from a decision 

of the board of street commissioners of the city of Boston 
granting a permit to erect a pubhc garage and to keep, store 
and sell three thousand gallons of gasoline in an under- 
ground tank upon the garage premises, under the following 
circumstances : 

The hearing before the street commissioners upon the 
petition for the permit was duly held. The charitable 
corporations which now appeal from the granting of the 
permit, having their premises upon the opposite side of the 
street and therefore not being abutters {Foss v. Wexler, 242 
Mass. 277, 281), were given no notice of the pendency of the 
application for the permit. The permit was granted May 
15, 1926. Work on the premises, pursuant to the permit, 
was begun June 21, 1926, and on June 24, 1926, an officer 
of one of the appellants for the first time received actual 
information that the building activities which had been 
begun contemplated the erection of a public garage. After 
communications back and forth between various officers of 
the appellants and conferences between the appellants and 
their attorney, the appeal was filed at the office of the Fire 
Marshal on July 1, 1926. Between the dates of June 21st 
and July 1st the permittee incurred expense in excess of 
$2,000, of which $1,124.40 represented the cost of surveying, 



JAY R. BENTON, ATTORNEY-GENERAL. 133 

labor and the work of carpenters, and the balance repre- 
sented a commission paid upon the negotiation of a con- 
struction loan. (1 find nothing either in your letter or in 
the testimony making certain beyond all doubt whether 
the construction loan was dependent upon the work actually 
going through, and whether this commission is or is not an 
amount which the permittee will be out of pocket even if 
the permit is finally refused.) 

Although but a single permit was granted by the street 
commissioners and a single appeal therefrom was filed, the 
appeal comes before you in contemplation of law as though 
two separate permits had been granted, one for the erection 
and maintenance of a garage and one for the storage and 
sale of gasohne; the first such permit being founded upon 
the authority of St. 1913, c. 577, as amended by St. 1914, 
c. 119, and the second being founded upon the authority 
delegated to the street commissioners by the Fire Marshal, 
pursuant to G. L., c. 148, §§ 14, 15, 28, 30 and 31. 

As to so much of the permit as is founded upon the 1913 
statute, the authority of the board of street commissioners 
is "directly and exclusively vested in them" (Foss v. Wexler, 
supra, 279), and you have, in my opinion, no authority to 
entertain an appeal therefrom. There is nothing in your 
letter to indicate that the premises are located in a resi- 
dential district, and that you therefore have the appellate 
power conferred by the Boston zoning act. Section 3, sub- 
section 9. See Marcus v. Commissioner of Public Safety, 
255 Mass. 5. It follows that although the decision of 
General Baking Co. v. Street Commissioners, 242 Mass. 194, 
is entirely applicable to this aspect of the permit, it is not 
really necessary to invoke the doctrine of that case, for the 
more fundamental reason that no appeal to the Fire Mar- 
shal from the decision of the street commissioners is author- 
ized, expressly or impliedly, by St. 1913, c. 577, as amended. 
Indeed, the decision in the General Baking Company case, 
even though possibly reaching the same result, would have 
had to have been based on somewhat different reasons if 



134 OPINIONS OF THE ATTORNEY-GENERAL. 

it had been thought that the decision of the street commis- 
sioners was subject to review upon an appeal. 

As to so much of the permit, however, as relates to the 
keeping and storing of gasohne, your authority to review 
upon appeal is unquestioned (G. L., c. 148, § 45), and I 
assume that the appellants come reasonably within the 
description of persons "aggrieved." Neither in the general 
laws nor in any rules or regulations promulgated by your 
department is to be found any provision regulating the time 
within which an appeal under this section must be taken. 
It must, therefore, be taken within a reasonable time, and, 
if taken within a reasonable time, it is, in my opinion, a 
matter of indifference whether between the date of the per- 
mit and the date of the appeal actual expense of construc- 
tion has been incurred by the permittee. The holder of 
the permit has no absolute right to rely, in incurring such 
expense, upon the permit until the time for appeal is passed. 

What constitutes a reasonable time is ordinarily a question 
of fact, but may be dealt with as a question of law where no 
room for dispute remains. Orr v. Keith, 245 Mass. 35, 39. 
In the present case the appeal was filed a month and a half 
after the issuance of the permit, but within ten days after 
the beginning of actual work on the ground and within seven 
days after actual knowledge of the nature of the work was 
brought home to a responsible representative of one of the 
appellants. While the primary question is not the amount 
of expenditure made by the holder of the permit in pur- 
ported reliance upon his permit, but rather what was a 
reasonable time within which the appellant should act under 
all the circumstances, the fact that no obvious, elaborate 
and expensive construction was being carried on by the 
holder of the permit may be considered as one of the cir- 
cumstances under which the reasonableness of the appel- 
lant's conduct is to be determined. I cannot advise you 
that, as matter of law, the appeal was or was not filed within 
a reasonable time. This question remains a question of 
fact for your determination, and if you determine that the 



JAY R. BENTON, ATTORNEY-GENERAL. 135 

appeal was seasonably filed, you then have authority to 
decide whether or not so much of the permit as relates to 
the storage and sale of gasoline should be denied. 



Civil Service — Veteran — Extent of Preference in 
Appointment — Extent of Preference as to Con- 
tinuous Employment or Reinstatement. 

A veteran of the Civil War is entitled to absolute preference in appointment over 

all persons not veterans. 
Other veterans are entitled only to preference in certification upon the eligible list 

for appointment. 
When men are laid off, for lack of work or other temporary cause, a veteran is not 

entitled to preference in reinstatement ahead of others similarly laid off. 

You ask my opinion upon certain questions relative to ^°s4one?°'^f 
the extent of the preference given to veterans by G. L., ^^Jig^'^^^''^- 
c. 31, § 24, and related provisions. "^"J^*^- 

A draft of a reply to these questions was prepared shortly 
after receiving your letter. It seemed to me, however, that 
if the pending suit to which your letter refers, brought by 
Alphonse Bois against the officials of Fall River, were to be 
decided speedily by the full bench of the Supreme Judicial 
Court, I ought not to seek to anticipate by an opinion the 
outcome of that case, with its manifest bearing upon your 
questions. Upon making inquiry of the clerk of courts at 
Taunton I find that the bill of exceptions of the defendants 
in that case, filed after the decision of a single justice that 
the writ of mandamus should issue in accordance with the 
veteran's contention, was filed one day late. What effect 
this may have upon the progress of the case and whether 
it may prevent its being heard and decided by the full bench, 
I do not undertake to predict. But it is apparent that it will 
be some time before any such decision is rendered, and that 
in the meantime you may require my advice upon these 
questions for its bearing upon your own duties. The sit- 
uation is in this respect different from that which is referred 
to in the opinion of my predecessor (VI Op. Atty. Gen. 438) 



136 OPINIONS OF THE ATTORNEY-GENERAL. 

declining to give an opinion upon a controversy pending in 
the courts between third parties, where the inquiry bore 
no direct relation to the duties of the officer by whom it was 
made. 

You will perceive that the answers to your questions are 
not in accord with the views which your letter attributes 
to various justices of the Supreme Judicial Court sitting at 
nisi prius. I do not feel that I can adhere to those views 
in the absence of a compelling decision by the full court. 
I must leave to you the question of what weight you will 
give to this advice under these circumstances. 

1. You ask whether a veteran, within the meaning of 
G. L., c. 31, § 24, is entitled to a preference in appointment 
or employment in the service. 

In Corliss v. Civil Service Commissioners, 242 Mass. 61, 
it was held that under G. L., c. 31, § 23, applying to posi- 
tions classified under the civil service, the preference given 
to veterans extends only to priority upon the eligible lists, 
and does not entitle a veteran to preference in appointment, 
except so far as the position of the veteran upon the eligible 
list may of itself tend to effectuate such preference.. The 
court said, at page 64 : — 

It is obvious that the statute contains no provision which compels 
the appointment and employment of a veteran. While he is given 
preference on the certified lists submitted by the civil service commis- 
sion, it seems apparent that the statute leaves to the appointing power 
the right to exercise his discretion in selecting an appointee therefrom. 

The conclusion reached in the decision from which these 
words are quoted flows naturally from the fact that the 
Legislature omitted from Gen. St. 1919, c. 150, and from the 
corresponding provisions of the General Laws relating to 
veterans' preference, all expressions which might be thought 
to confer a right to preferential appointment or employ- 
ment. The veterans to whom R. L., c. 19, § 21, had applied 
had been given by the express words of that section a right 
to be ''preferred in appointment or emplojonent to all per- 



JAY R. BENTON, ATTORNEY-GENERAL. 137 

sons not veterans." The preference thus given to veterans 
of the Civil War was expressly preserved by Gen. St. 1919, 
c. 150, § 5. See Corliss v. Civil Service Commissioners, 
supra, p. 64. 

G. L., c. 31, § 23, was amended by St. 1922, c. 463, en- 
titled "An Act providing a preference to disabled veterans 
in civil service appointments." That act provided expressly 
that "a disabled veteran shall be appointed and employed 
in preference to all other persons, including veterans," 
while leaving unchanged the words of section 23 as applying 
to veterans not disabled. Another illustration is thus 
furnished of the fact that whenever it has been intended to 
confer a direct right to preference in appointment the 
Legislature has used words plainly calculated to bring about 
that result. 

The provisions of G. L., c. 31, § 24, relating to the labor 
service of the Commonwealth and of cities and towns, differ 
in no presently significant respect from the provisions of 
G. L., c. 31, § 23, relating to positions classified under the 
civil service. The name of the veteran is to be placed on 
the eligible list for the place for which he registers ahead of 
all other applicants. "The names of ehgible veterans shall 
be certified for labor service in preference to other persons 
eligible according to the method of certification prescribed 
by the civil service rules applying to civilians." If, as was 
the case in Corliss v. Civil Service Commissioners, supra, 
there are certified, pursuant to the civil service rules, names 
to a greater number than the number of vacancies, I am of 
the opinion that the person whose duty it is to employ the 
men called for may select for employment any of the men 
whose names are so certified. He is not required to give 
preference to any veteran. 

2. You ask whether a veteran is entitled to a preference in 
reinstatement, when laid off for lack of work or any other 
temporary cause, such as the lack of money. 

The answer to this question is governed in spirit by the 
answer given to the foregoing question. The statutes con- 



138 OPINIONS OF THE ATTORNEY-GENERAL. 

tain no language dealing expressly with this problem. 
There seems, however, to be no good reason for assuming 
that the Legislature meant to confer an absolute right to 
preference as to continuous employment upon men to whom 
it gave no absolute right to preference as to initial employ- 
ment. Statutes extending special privileges are to be 
strictly construed. Phillips v. Metropolitan Park Com- 
mission, 215 Mass. 502. 

In Ransom v. Boston, 193 Mass. 537, it was held that a 
veteran of the Civil War employed in the labor service of 
the city of Boston, who had been refused further employ- 
ment although there was work to be done which he was able 
and ready to do, was entitled to the issuance of a writ of 
mandamus to ''compel the respondents to perform the 
public duty to continue his employment which rests upon 
them." There is language in the decision in that case and 
in the case of Ransom v. Boston, 192 Mass. 299, indicating 
that the court considered that the veteran was entitled to 
preference as to continuous employment. It is to be borne 
in mind, however, that the evidence of the legislative intent 
to confer such a preference was to be found in the express 
words of R. L., c. 19, § 21 — ''shall be preferred in the 
appointment and employment"; words which are not to 
be found in the present law, and the omission of which it 
may be assumed was intentional and advised. 

It is therefore my opinion that a veteran is not entitled 
to a preference under the circumstances referred to in your 
second question. 



jay r. benton, attorney-general. 139 

Armory — Use of Armory Land for raising Money. 

Under existing law pertaining to armories, military authorities in charge have no 
right to permit the use of armory land for the purpose of regularly engaging 
in the business of parking automobiles for hire, even though the purpose 
is to raise funds for the benefit of the military units stationed in the armory. 

You request my opinion as to the right of the military ^^^nt Ge^raL 
authorities to permit the use of Commonwealth land adjoin- jJiy^ls. 
ing an armory for the purpose of raising money for the 
company funds of the units stationed in the armory. You 
state that the specific instance is the use of the large field 
owned by the State, adjoining the Commonwealth Armory, 
for parking purposes, with the object of raising funds as 
aforesaid. It does not appear to what use such funds are 
to be put; that is, whether they are to be devoted to 
"public" or "private" purposes. 

G. L., c. 33, § 52, as amended by St. 1924, c. 257, provides, 
in part, as follows : — 

Armories provided for the militia shall be used by the militia for the 
mihtary purposes or purposes incidental thereto designated by the 
commander-in-chief. 

The statute permits military units stationed in an armory 
to use the armory, without charge, for social activities or 
athletics, subject to the rules and regulations promulgated 
by the military custodian of such armory and approved by 
the Governor and Council, provided such use does not 
interfere with its military use. The statute expressly sets 
forth the purposes for which armories may be used tem- 
porarily, all of which purposes are public in their nature. 
The use of an armory as a parking place for privately owned 
vehicles, for hire, does not appear among the uses expressly 
permitted. 

Armories are provided from funds raised by taxation, and 
are to be used for public purposes only. Any use other than 
for the military purpose for which they are created should 
be closely scrutinized to determine whether such use is 
public. If the principal purpose of the use of an armory is 



140 OPINIONS OF THE ATTORNEY-GENERAL. 

private, an incidental benefit to the public will not alter 
the fact that the use is for private rather than for public 
purposes and hence is not authorized by the statute. 

There can be no distinction between the armory building 
itself and the land to which it belongs. The term "build- 
ing" includes the real estate on which it is situated, unless 
the general meaning is modified by the language of the 
context. Accordingly, the same rule must be applied to 
the "armory land" adjoining the armory as pertains to 
the structure itself. 

The question, in its last analysis, is one of taxation. The 
principle of law is definitely established that taxes can only 
be laid for pubhc purposes. The power to tax is based upon 
and derived from the inherent purposes of the State as a 
social organization that is to exist for the benefit of all. It 
accordingly follows that in the absence of constitutional 
permission to the contrary, taxation must be for public 
as distinguished from private purposes. Accordingly, a 
serious question is presented as to whether or not the State 
may engage in any enterprise of a private nature, especially 
if the carrying on thereof involves the use of public funds 
or other public property. Attempted legislation expressly 
authorizing the use of public funds in the carrying on of 
enterprises of a private nature or in assisting private busi- 
ness has generally been held invalid. See Lowell v. Boston, 
111 Mass. 454; Opinion of the Justices, 155 Mass. 598; 
ibid., 182 Mass. 605; ibid., 204 Mass. 607; ibid., 211 Mass. 
624; Byfield v. Newton, 247 Mass. 46, and cases cited. 

It has been quite generally recognized that it would be a 
perversion of the function of government for the State to 
enter as a competitor into the field of industrial enterprise 
with a view to profit, it being obvious that in such case the 
private competitor would be compelled to pay taxes for the 
establishment and maintenance of a rival. This is con- 
trary to our theory of government. Public money can only 
be used for a pubhc purpose. In time of war, public exi- 
gency, emergency or distress the providing of food and 



JAY R. BENTON, ATTORNEY-GENERAL. 141 

other common necessaries of life is a public function. See 
Mass. Const. Amend. XLVIL Even the pohce power of 
the State to regulate a business does not include the power 
to engage in carrying it on. 

Obviously, the facts presented in your question are to be 
differentiated from the right of the Commonwealth or a 
municipality to sell or lease property no longer needed for 
the public purpose for which it was acquired. 

The statute under consideration does not authorize 
armories to be used for any private purpose whatever. See 
VI Op. Atty. Gen. 72. 

I am accordingly of the opinion that under the existing 
law pertaining to armories the military authorities have no 
right to permit the use of armory land for the purpose of 
regularly engaging in the business of parking automobiles 
for hire, even though the purpose is to raise funds for the 
benefit of the military units stationed in the armory. 



Burial Permit — Death Certificate — Medical 
Examiners. 

When a death certificate does not comply with the requirements set forth in G. L., 
c. 114, § 45, as amended by St. 1922, c. 176, in that it does not properly state 
the cause of death, a town clerk or board of health may properly refuse to issue 
a burial permit. The same requirements apply to certificates of medical 
examiners in this regard as are required of other officials. 

The medical examiner can certify as to the cause and manner of death to the best of 
his knowledge and belief. 

A medical examiner has no right to delay filing the certificate until judicial inquiries 
have been concluded and certified. 

You request my opinion as follows : — to the secre 

1926 

1. Can a town clerk or board of health refuse to issue a burial permit Juiy^9- 
as provided in G. L., c. 114, § 45, as amended by St. 1922, c. 176, when 

the death certificate does not properly state the cause of death? 

2. Are medical examiners any exception to the provisions of law which 
require a death certificate to be filed before a burial permit is issued, 
which contains a statement of the cause of death, so stated that it may 
be classified in accordance with the International Classification of Causes 
of Death, as required by G. L., c. 46, § 9, and c. 38, § 7? 



142 OPINIONS OF THE ATTORNEY-GENERAL. 

3. Does the cause of death required by G. L., c. 38, § 7, mean anything 
more than what, in the opinion of the medical examiner, is the cause 
and manner of death, or can he delaj'- filing the certificate referred to until 
the judicial inquiries have been concluded and certified. 

1. G. L., c. 46, § 1, provides that each town clerk shall 
receive or obtain and record in separate columns the fol- 
lowing facts relative to . . . deaths in his town : — 

In the records of death, date of record, date of death, name of deceased, 
sex, color, condition (whether single, widowed, married or divorced), 
supposed age, residence, occupation, place of death, place of birth, names 
and places of birth of the parents, maiden name of the mother, disease 
or cause of death, defined so that it can be classified under the inter- 
national classification of causes of death, place of burial, name of the 
cemetery, if any, and if deceased was a married or divorced woman or a 
widow, her maiden name and the name of her husband. 

The above provisions of law are mandatory. Section 9 
requires a physician or registered hospital medical officer 
forthwith, after the death of a person whom he has attended 
during his last illness, at the request of an undertaker or 
other authorized person or of any member of the family 
of the deceased, to furnish for registration a standard cer- 
tificate of death, stating to the best of his knowledge and 
belief the name of the deceased, his supposed age, the disease 
of which he died, defined as required by section 1, where the 
disease was contracted, the duration of his last illness, when 
last seen alive by the physician or officer and the date of his 
death. A penalty of fifty dollars is imposed upon any 
physician or any such officer neglecting or refusing to make 
such certificate or making a false statement therein. 

G. L., c. 114, § 45, as amended by St. 1922, c. 176, pro- 
vides that no undertaker or other person shall bury or other- 
wise dispose of a human body in a town until he has received 
a permit from the board of health or its agent appointed 
to issue such permits, or, if there is no such board, from the 
clerk of the town where the person died. It is expressly 
provided that : — 



JAY K. BENTON, ATTORNEY-GENERAL. 143 

No such permit shall be issued until there shall have been delivered 
to such board, agent or clerk, as the case may be, a satisfactory written 
statement containing the facts required by law to be returned and re- 
corded, which shall be accompanied, in case of an original interment, 
by a satisfactory certificate of the attending physician, if any, as required 
by law, or in lieu thereof a certificate as hereinafter provided. If there 
is no attending physician, or if, for sufficient reasons, his certificate can- 
not be obtained early enough for the purpose, or is insufficient, a physician 
who is a member of the board of health, or employed by it or by the 
selectmen for the purpose, shall upon application make the certificate 
required of the attending physician. If death is caused by violence, the 
medical examiner shall make such certificate. The board of health or its 
agent, upon receipt of such statement and certificate, shall forthwith 
countersign it and transmit it to the clerk of the town for registration. 
The person to whom the permit is so given and the physician certifying 
the cause of death shall thereafter furnish for registration any other 
necessary information which can be obtained as to the deceased, or as to 
the manner or cause of the death, which the clerk or registrar may require. 

It is to be noted that the town clerk or board of health is 
expressly required not to issue a burial permit unless a 
"satisfactory" written statement "containing the facts 
required by law to be returned and recorded," accompanied 
by a "satisfactory" certificate of the attending physician, 
if any, as required by law, has been delivered to such board, 
agent or clerk, as the case may be. I am accordingly of the 
opinion that when the death certificate does not comply 
with these requirements, in that it does not properly state 
the cause of death, a town clerk or board of health may 
properly refuse to issue a burial permit, and I so answer 
your first question. 

2. The duties of medical examiners are set forth in G. L., 
c. 38, § 6. It is therein provided that "medical examiners 
shall make examination upon the view of the dead bodies 
of only such persons as are supposed to have died by vio- 
lence." Section 7 requires that medical examiners "shall 
in all cases certify to the town clerk or registrar in the place 
where the deceased died his name and residence, if known; 
otherwise a description as full as may be, with the cause and 
manner of death." G. L., c. 114, § 45, as amended by St. 



144 OPINIONS OF THE ATTORNEY-GENERAL. 

1922, c. 176, governing the issuance of burial permits, 
expressly provides that "if death is caused by violence, the 
medical examiner shall make such certificate." It accord- 
ingly follows that the same requirements apply to certifi- 
cates of medical examiners in this regard as are required of 
other physicians, and I so answer your second question. 

3. G. L., c. 38, § 7, requires that the medical examiner in 
making his certificate to the town clerk or registrar, as 
therein required, shall certify "the cause and manner of 
death." I am of the opinion that this cannot be construed 
to mean anything more than that the medical examiner 
certifies the cause and manner of death to the best of his 
knowledge and belief. Obviously, he can do no more than 
that at the time. Further investigation may disclose that 
the cause and manner of death were different. The law 
provides the proceedings governing inquests and what is 
required in connection therewith (G. L., c. 38, §§ 8-13, as 
amended by St. 1923, c. 362, § 53). I am accordingly of 
the opinion that a medical examiner has no right to delay 
filing the certificate referred to until judicial inquiries have 
been concluded and certified, and I so answer your third 
question. 



Local Boards of Health — Bakeries — Revocation of 
Approval of Building Plans and Equipment — 
Appeal. 

Under G. L., c. Ill, § 48, no appeal lies to the Department of Public Health or to 
the Superior Court unless a permit has been refused. 

The health department of the city of Boston cannot revoke its approval of a new 
bakery, granted under G. L., c. Ill, § 48, if the owner or licensee has acted 
upon the strength of the permit and in good faith has incurred expense there- 
under, where it does not appear he has violated the laws of the Commonwealth, 

m?ssk)ne^°"f ^^^ rcquest my opinion as to whether or not the health 
^1926"^"'^^" department of a city, having approved the building plans 
and equipment proposed to be used in the establishment of 
a new bakery, may subsequently revoke such approval if 



July 31. 



JAY R. BENTON, ATTORNEY-GENERAL. 145 

construction work has commenced between the time of 
granting such approval and revoking the same. 
G. L., c. Ill, § 48, provides: — 

No new bakeries shall be established unless the building plans and 
equipment proposed to be used have been approved by the local board 
of health. The board shall refuse a permit for such bakery if the build- 
ing and equipment do not comply with sections thirty-nine to forty-five, 
inclusive, and sections two to six, inclusive, of chapter ninety-four and 
rules and regulations made thereunder, provided that any party in inter- 
est may appeal to the department or to the superior court. Said depart- 
ment or court may affirm, reject or modify the findings of the board, and 
the said board shall thereupon proceed in accordance with the order of 
the court or department. 

It would seem that under said section no appeal would 
lie to the Department of Public Health or to the Superior 
Court unless a permit was "refused." It was evidently 
the intention of the Legislature that if the plans and equip- 
ment proposed to be used met with the approval of the 
local board of health, a permit should be granted. The 
board is only empowered to refuse a permit for a new 
bakery if the building and equipment do not comply with 
sections 39 to 45, inclusive, and sections 2 to 6, inclusive, of 
chapter 94, and rules and regulations made thereunder. 
There is no provision in the statute authorizing the board 
to revoke such a permit if it has been granted and acted 
upon. Where such power exists, it is usually conferred in 
express terms. 

While permits respecting purely personal privilege or 
dependent upon governmental permission may be revoked 
for sufficient legal reason, even where the power to revoke 
is not expressly conferred, yet where, as in the present case, 
a regulation of the right of ownership and use of land is 
involved, a permit lawfully granted and acted upon cannot 
be revoked unless the power so to do is conferred in express 
terms. 

In General Baking Co. v. Street Commissioners, 242 Mass. 
194, 196, the Supreme Judicial Court of this Common- 
wealth says, at pages 196-7: — 



146 



OPINIONS OF THE ATTORNEY-GENERAL. 



The erection and use of buildings for innocuous purposes cannot 
ordinarily be left to the untrammeled and unregulated discretion of 
local officers. By analogy of reasoning the taking away of a permit 
once granted to make valuable and expensive improvements upon land, 
without hearing and without the statement of any grounds, in the absence 
of express statutory authority transcends the power of local boards. . . . 
When permission is obtained, the landowner reasonably may infer that, 
so long as he complies with the requirements under which the privilege 
has been granted, he may claim protection until further legislation im- 
pairs his rights. It follows that a permit of this nature lawfully granted 
and acted upon by the landowner cannot be revoked. 

See also Lowell v. Archambault, 189 Mass. 70, and cases 
cited. 

This statement of the law applies with equal force to the 
present case, and I am accordingly of the opinion that the 
health department of the city of Boston cannot revoke its 
approval of a new bakery granted under G. L., c. Ill, § 48, 
if the owner or licensee has acted upon the strength of the 
permit and in good faith has incurred expense thereunder, 
where it does not appear that he has violated the laws of the 
Commonwealth. 



Compulsory Automobile Liability Security — Insur- 
ance Policies, Binders and Endorsements. 

A definite basic form of liability insurance policy is required by G. L., c. 90, § 34A, 
but to this endorsements of more extended coverage may be added. 

The issuance of both a policy of liability insurance and a binder which together 
cover the total period of registration of a motor vehicle may constitute a com- 
pliance with the provisions of St. 1925, c. 346, as amended. 



To the Com- 
missioner of 
Insurance. 

1926 
August 19. 



You have requested my opinion upon certain questions 
relative to motor vehicle liability insurance under the pro- 
visions of St. 1925, c. 346, as amended by St. 1926, c. 368, 
and of the General Laws. 

1. Your first question is as follows: — 

iClay the Commissioner lawfully approve a form of motor vehicle 
liability policy under G. L., c. 175, § 113A, which covers against liability 
for death or personal injuries arising out of the operation of a motor 



JAY R. BENTON, ATTORNEY-GENERAL. 147 

vehicle on the ways of this Commonwealth, and which also covers against 
liability for death or personal injury occurring elsewhere, and/or against 
liability for damage to another's property and/or against loss to the 
insured car caused by collision, assuming that the limited coverage 
demanded by St. 1925, c. 346, is separately stated in the policy and is 
granted at the rate determined by the Commissioner under St. 1925, 
c. 345, and that the premium therefor is separately stated in the policy? 

A motor vehicle liability policy is defined by G. L., c. 90, 
§ 34A (enacted by St. 1925, c. 346, § 2, as amended), its 
requisite provisions enumerated and a definite basic form 
of policy is set forth. No policy whose coverage is less in 
extent or whose terms are less favorable than the minimum 
requirements of the section can be approved, but it does 
not appear to have been the intention of the Legislature to 
prohibit the combination in one policy of the required pro- 
visions with other lawful ones more extensive in character, 
when no confusion with the required provisions of the 
statutory "motor vehicle liability policy" arises. G. L., 
c. 175, § 113A (enacted by St. 1925, c. 346, § 4, as amended), 
provides that the motor vehicle liability policy may contain 
other provisions than those required by the section, when 
the same are not inconsistent with the terms of the chapter 
or with G. L., c. 90, § 34A, and are approved by the Com- 
missioner. 

I answer your first question in the affirmative. 

2. Your second question is: — 

May the Commissioner lawfully approve a form of rider or endorse- 
ment under said section 113A or 192 to be attached to a motor vehicle 
liability policy covering only against liability for death or personal 
injuries arising out of the operation of a motor vehicle on the ways of the 
Commonwealth, which form of rider or endorsement extends the coverage 
of the policy to liability for death or personal injuries arising from such 
operation elsewhere than on said ways and/or liability for damage to 
another's property and/or against loss or damage by collision? 

To extend the coverage of a motor vehicle liability policy 
by adding, by way of a rider or endorsement, new terms as 
to additional coverage of a lawful character not inconsistent 
with the required statutory provisions, and not in such a 



148 OPINIONS OF THE ATTORNEY-GENERAL. 

form as to be confused therewith, does not appear to be 
prohibited by the terms of the statutes. The same con- 
siderations as to legislative intent apply in relation to the 
extension of coverage by endorsement upon the statutory 
motor vehicle liability policy as are applicable to extended 
coverage in an original policy, raised by your first question. 
Riders are permitted to be used with the motor vehicle 
liability policy when not in conflict with the provisions of 
G. L., c. 175, and c. 90, § 34 A. An extended coverage, such 
as is indicated in your question, is not of such a character 
as to be in conflict with such statutory provisions. 

I answer your second question in the affirmative. 

3. Your third question is: — 

May the Commissioner lawfully approve under said section 113A, as 
a "form" of "motor vehicle liability policy," a form of automobile lia- 
bility policy not containing the provisions required by said section, but 
bearing a form of rider or endorsement which incorporates therein the 
said provisions, or does said section and St. 1925, c. 345, § 4, contemplate 
and require that only a distinct basic form of policy — as distinguished 
from a form of policy bearing an amendatory rider or endorsement — 
containing said provisions shall be approved by the Commissioner? 

I am of the opinion that it was the legislative intent, as 
manifested in the provisions of St. 1925, c. 345, as amended, 
to require a definite and distinct policy form embodying in 
itself the terms set forth in the definition of "motor vehicle 
liability policy" in G. L., c. 90, § 34A (enacted by St. 1925, 
c. 346, § 2, as amended), that such an original basic form 
of pohcy is referred to in G. L., c. 175, § 113 A (enacted by 
St. 1925, c. 346, § 4, as amended), and that a pohcy form 
originally containing other provisions brought within the 
statutory terms by a rider is not such a form of policy 
as the Commissioner is empowered to approve. The word 
"pohcy," as used by the Legislature quite generally through- 
out St. 1925, c. 346, as amended, appears to have a definite 
and limited meaning, referring specifically to the pohcy or 
binder forms themselves rather than to the contract of 
insurance as such, evidenced thereby. G. L., c. 175, 



JAY R. BENTON, ATTORNEY-GENERAL. 149 

§113A, refers to a specific form of basic policy defined in 
G. L., c. 90, § 34 A, and its language as used is not broad 
enough to cover a contract of insurance prepared, as your 
question indicates, by a modification of an older form of 
policy, not the defined "motor vehicle Hability poHcy," 
by an endorsement which creates new terms similar to those 
of the new statutory type. 

I answer your third question to the effect that the approval 
by the Commissioner of Insurance, as a form of motor 
vehicle liability policy, of a policy and an endorsement such 
as you describe in the question is not within the powers 
vested in him by the statutes. 

4. Your fourth question is as follows : — 

May the Commissioner lawfully approve under said section 113A 
or 192, a form of rider or endorsement designed to be attached to the 
present form of automobile liability policies issued in 1926 and to incor- 
porate therein the provisions required by said section 113A, or, has he 
no authority to approve such a rider or endorsement on the ground that 
it is not to be attached to a "motor vehicle liability policy" as defined in 
said chapter 346, and that the provisions of said section 192 relative to 
riders and endorsements apply only to riders and endorsements to be 
attached to policies, the form of which the Commissioner is by law re- 
quired to approve? 

I am of the opinion that the provisions of G. L., c. 175, 
§ 192, do not apply to the approval of endorsements to be 
attached to policies which themselves do not require ap- 
proval. As stated in my answer to your third question, 
the approval of an old policy bearing an endorsement 
couched in the language of the motor vehicle liabiUty policy 
and modifying the original policy terms may not be ap- 
proved by the Commissioner as a "motor vehicle liability 
pohcy." 

5. Your fifth question, which is in three parts, is as 
follows : — 

(a) If in your opinion the Commissioner may lawfully approve a form 
of rider or endorsement as stated in question 4, may a company attach 
to an automobile liability policy issued in 1926 and expiring in 1927 



150 OPINIONS OF THE ATTORNEY-GENERAL. 

before December 31st, an approved form of rider or endorsement amend- 
ing the contract to incorporate therein the provisions required by said 
section 113A, and concurrently with the attaching of such rider or en- 
dorsement may it issue to the applicant for registration a binder on a 
form approved under said section 113A, insuring him in respect to the 
operation of the motor vehicle from the date of expiration of said policy 
in 1927 to December 31, 1927? 

(6) May a company lawfully issue to an applicant for registration 
for the year 1927 a motor vehicle liability poHcy expiring in 1928 before 
December 31st, and in connection with the registration for the year 1928 
may it issue to the appKcant a binder under said section 113A, insuring 
him in respect to the operation of the car until December 31, 1928, from 
the date of expiration of the policy? 

(c) Or, does said section 34A permit or require the issuance of a cer- 
tificate in respect to a policy or a binder, and not in respect to both, and 
should therefore any such amendatory rider or endorsement referred to 
in (a) supra, extend the term of the poHcy issued in 1926 to expire on 
December 31, 1927? 

(a) My answer to your fourth question precludes an 
affirmative answer to this question. 

ih) and (c) In so far as these questions relate to policies 
of a later date than 1926, which latter are covered by my 
answer to your fourth question, I am of the opinion that the 
issuance of both a policy and a binder covering the period 
for which registration is desired is lawful. The effect of a 
policy and a binder issued as you describe is the creation of 
coverage for the whole period of the registration. The 
purpose of the act is carried out by such a form of coverage, 
and G. L., c. 90, § 34A, gives to the words ''motor vehicle 
liability policy" two specific meanings, the second of which 
is "binder," and the issuance of binders is provided for in 
G. L., c. 175, § 113A. The certificate to be issued by the 
insurance company, wJiich is to be accepted by the Registrar 
(G. L., c. 90, §§ 34 A, 34B), is defined as a certificate stating 
that a motor vehicle liability policy running for a period at 
least coterminous with the registration has been issued or a 
binder executed. Since ''motor vehicle Uability policy" 
is given, by section 34A, either the meaning of pohcy or 
binder, it would seem that, where the policy and the binder 



JAY R. BENTON, ATTORNEY-GENERAL. 151 

supplement each other as to coverage and are together 
coterminous with the period of registration, the require- 
ments for the certificate were fulfilled by the issuance of 
both, and that under the statutory definition the certificate 
might state that coverage was by a "motor vehicle UabiHty 
policy." It may have been assumed by the Legislature, 
when enacting chapter 346, that policies would be issued for 
exact calendar years, but an intent to forbid the use of 
policies and binders in the manner indicated by your ques- 
tion cannot be gathered from the language of the statute, 
more particularly in view of the phraseology and definitions 
contained in section 34A. 

6. Your sixth question is as follows: — 

If in your opinion the company may lawfully amend an existing policy 
issued in 1926 and may lawfully issue a binder theremth, as stated in 
question 5 (a), or if in your opinion it may lawfully issue a motor vehicle 
liability policy and a binder, as stated in question 5 (b) supra, should the 
certificate issued by it under section 34A for filing with the Registrar of 
Motor Vehicles — 

(a) recite that it has issued a motor vehicle liability policy running 
for a period at least coterminous with that of the registration; or, 

(6) should it state that it has issued such a policy expiring on a certain 
date in 1927 and that it has also executed a binder running from said 
date of expiry until December 31, 1927, pending the issue of a policy; or, 

(c) should it, or may it, issue two certificates, one in respect to the 
policy and one in respect to the binder? 

Inasmuch as by the terms of G. L., c. 90, § 2, the words 
"motor vehicle liability policy" mean either policy or 
binder, it would not seem to be improper or unlawful for an 
insurance company, issuing both to cover a period of 
registration, to certify to the issuance of "a motor vehicle 
liability policy" running for a period coterminous with the 
registration. 



152 opinions of the attorney-general. 

Insurance — Guaranty Insurance — Foreign Company. 

A foreign insurance company authorized by its charter to write policies gtiaranteeing 
the fidelity of individuals and to transact other descriptions of ordinary 
guaranty business is empowered to act as surety on official bonds. 



To the Com- 
missioner of 



You have asked my opinion as to whether a foreign cor- 
insurance. poration engaged in the business of writing policies of insur- 
August^28. ^^^^ ^^^ guaranty of various sorts, and authorized by its 
charter to issue "pohcies guaranteeing the fidehty of in- 
dividuals filling or about to fill situations of trust or con- 
fidence, and such other descriptions of ordinary guaranty 
business as the company may from time to time think fit to 
conduct," may be licensed by you to transact the kind of 
business specified in G. L., c. 175, § 47, cl. 4th (6), which is 
described in said clause 4th (6) as acting "as surety on official 
bonds and for the performance of other obligations." 

G. L., c. 175, § 152, as amended, provides that "no 
foreign (insurance) company shall transact in this common- 
wealth any kind of business not specified in its charter," 
and section 107 makes the foregoing section applicable to 
companies becoming sureties on bonds. 

The business of guaranty insurance, as conducted today, 
commonly embraces the writing of a wide variety of con- 
tracts, and the words "guaranty insurance" are not ordi- 
narily used with any hard and fast meaning and have been 
said to be generic in scope and substance. People v. Potts, 
264 111. 522. The business frequently covers a variety of 
somewhat similar types or forms of insurance, which are 
described generally by the use of the words "guaranty 
insurance," and more specifically by particular titles, such 
as, "fidelity guarantee insurance" or "fidelity insurance," 
which terms accurately denote the type of business author- 
ized by said section 47, clause 4th (a), and the form of busi- 
ness which the charter under consideration in the first part 
of its section 2 (d) empowers the foreign corporation to 
transact. In the second part of section 2 (d) of the com- 
pany's charter, joined to the first part by the conjunction 



JAY R. BENTON, ATTORNEY-GENERAL. 153 

and, the corporation is given a wider power, which embraces, 
in addition to that of writing fideUty guarantee insurance, 
that of transacting such other description of "guaranty 
business" as the company may desire to carry on, and, in 
my opinion, the power to act as surety on official bonds and 
for the performance of other obhgations, as used in said 
section 47, clause 4th (6), is comprehended in this broad 
power given to the corporation by this second part of 
section 2 (d) of its charter. 

The exact distinction which exists between contracts of 
suretyship and guaranty is not always carefully preserved 
either in statutes or in common usage, and the words are 
often used as though synonymous. Accurately used, 
guaranty insurance is a contract to indemnify against loss 
from the breach of an agreement, real or implied. Accu- 
rately used, "to act as surety" means to become collaterally 
liable for payment or performance by another. The 
obligations of the surety and the guarantor are very similar, 
but the latter's are greater in extent and comprehend in 
their scope all the advantages which flow to others from the 
contract of the surety. Guarantor and surety, as descrip- 
tive of an obligor, and corresponding adjectives describing 
a business corporation or the kind of business to be under- 
taken by a company, are not infrequently used interchange- 
ably. 

A surety company has been defined as "a corporation in- 
corporated for the purpose of making, guaranteeing or 
becoming a surety upon bonds or undertakings required or 
authorized by law." (32 Cyc. 303.) 

The statement has been made that guaranty insurance 
may be regarded as merely a mode of compensated surety- 
ship. 2 May on Insurance, § 540. "Surety insurance" has 
been said to be a synonym for guaranty insurance as com- 
monly used in the business world. People v. Potts, 264 111. 
522, 531. The business of guaranty insurance or guaranty 
business, as the words are used in the charter under con- 
sideration, cannot, without too narrow an interpretation of 



154 



OPINIONS OF THE ATTORNEY-GENERAL. 



words, be said not to include the power to act as surety, it- 
self a position similar to and less onerous than that of a 
guarantor. 

The general laws (as amended) of the State of Connecti- 
cut, whose Legislature, by a special act, granted the instant 
charter, contain no specific differentiation between the 
formation of corporations for the purpose of guaranteeing 
the fidelity of persons and their formation for the purpose of 
acting as surety on bonds, as does G. L., c. 175, § 47, cl. 4, 
in respect to domestic corporations. In the absence of such 
differentiation in the laws of the State of incorporation, it 
cannot be said that the foreign corporation under considera- 
tion is not organized for the purpose of transacting both 
kinds of business specified in section 47. 

Accordingly, I answer your question in the affirmative. 



Municipalities — Expenditure of Money for the 
Purpose of Entertaining Conventions. 

The authority of a town to appropriate and expend money raised by taxation is 
derived from the statutes of the Commonwealth, and such money can be ex- 
pended only for public purposes sanctioned by law. 

In the absence of a statute permitting municipalities to expend public moneys for 
the purpose of entertaining conventions, municipalities have no power to do so. 



To the Com- 
missioner of 
Corporations 
and Taxation. 

1926 
October 6. 



You request my opinion as to whether or not munici- 
palities may legally expend sums of money for the purpose 
of entertaining conventions. I assume that by this question 
you mean to ask whether or not municipalities may law- 
fully pay out of the public treasury for the board, lodging, 
banqueting, transportation and entertainment of delegates 
and other members of such conventions while the conven- 
tions are being held within the municipality. 

The law is well settled and laid down in numerous decisions 
in this Commonwealth that municipalities are creatures of 
the Legislature, existing solely to aid in the administration 
of government. Their powers respecting raising and expend- 
ing money are strictly limited to the public purposes for 



JAY R. BENTON, ATTORNEY-GENERAL. 155 

which they are created. The money they expend is raised 
through taxation. Such money can be expended only 
for a purely public purpose. To permit it to be spent 
otherwise would be taking private property for a private 
use, which is illegal. 

In the case of Whittaker v. Salem, 216 Mass. 483, 484, 
485, the court said : — 

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 by 
taxation cannot be appropriated for it. 

There is no simple and merely logical test by which the limit 
can be fixed. It must be determined by practical considera- 
tions. The question is one of degree. See Hubbard v. 
City of Taunton, 140 Mass. 467. 

The authority of a town to appropriate and expend 
money raised by taxation is derived from the statutes of the 
Commonwealth, and it can be expended only for public 
purposes sanctioned by law. It accordingly follows that 
in the absence of a statute permitting municipalities to 
expend public moneys for the purpose of entertaining con- 
ventions, municipalities have no power to do so. 

G. L., c. 40, outlines the powers and duties of cities and 
towns. Section 1 provides that, except as otherwise ex- 
pressly 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 laws, and all laws relative 
to towns shall apply to cities. Section 5 contains the pur- 
poses for which towns may appropriate money. Clause 26 
permits the appropriation of money for public band con- 
certs or for music furnished for public celebrations, not 
exceeding $500. Clause 27 permits towns to appropriate 
money for the celebration of the Fourth of July, or for the 
observance of an old home week or day, during which the 
town may conduct appropriate celebrations in honor of 
returning residents and other invited guests and hold 



156 OPINIONS OF THE ATTORNEY-GENERAL. 

exercises of historical interest, and for the celebration of the 
anniversary of its settlement or incorporation at the end of 
a period of fifty or any multiple of fifty years therefrom, 
and for publishing the proceedings thereof. G. L., c. 40, 
§ 9, authorizes cities to appropriate money for the celebra- 
tion of holidays. This is apparently as far as the Legisla- 
ture has permitted municipalities to expend public money 
for entertainment. 

In Waters v. Bonvouloir, 172 Mass. 286, the Supreme 
Court of this Commonwealth held that an appropriation of 
money to defray the expenses of a committee composed of 
certain officers of the city to attend a convention of American 
municipalities in another State was unauthorized either by 
the general laws or by the charter of the city, and that the 
city treasurer might be enjoined from the payment of the 
money. See also Ducey v. Inhabitants of Webster, 237 Mass. 
497. The decisions of other States are in accord with this 
principle. Stevens v. Sedgwick County, 5 Col. App. 115; 
Beauchamp v. Snider, 170 Ky. 220; Hitchcock v. State, 34 
So. Dak. 124; James v. Seattle, 22 Wash. 654. If it is 
unlawful to expend public money to pay the expenses of 
the members of a city government to attend a convention 
elsewhere, it would seem that it is likewise illegal for a 
municipality to pay the expenses for entertaining delegates 
from other places while visiting such municipality. The 
principle of law involved is the same in both cases. 

I am accordingly of the opinion that, in the absence of a 
statute expressly permitting municipalities to appropriate 
money raised by taxation for the purpose of entertaining 
conventions, such expenditures are illegal. 



jay r. benton, attorney-general. 157 

Escape from Reformatory for Women — Felony or 

Misdemeanor. 

An attempt to escape from the Reformatory for Women may be a felony or a mis- 
demeanor. 

The Reformatory for Women being an institution where women may be sentenced 
for a felony or a misdemeanor, the original sentence should be the controlling 
factor in deciding whether an escape from the Reformatory is a felony or a 
misdemeanor. 



Correction. 

1926 
October 6. 



You have requested my opinion as to whether or not an '^^J^l^°'^] 
attempt to escape from the Reformatory for Women is a 
felony or a misdemeanor. 

At the present time the definition of a felony has almost 
lost its significance. In Jones v. Rohhins, 8 Gray, 329, it 
was decided that a definition of a felony or a misdemeanor 
depended upon the institution to which the criminal must 
be sent and not upon the nature of the crime. Under the 
recent statutes, prisoners may be sent to reformatories, 
training schools, prison camps, etc., for the commission of 
felonies, and this complicates the issue considerably. It is 
very difficult today to make a distinct classification in 
defining a felony or misdemeanor. 

G. L., c. 274, § 1, defines a felony as "a crime punishable 
by death or imprisonment in the state prison," and a mis- 
demeanor as any other crime. The statutes providing that 
persons may be sent to a reformatory for felonies, however, 
complicate this issue. G. L., c. 279, § 19, provides that a 
woman convicted of a felony shall be sent to the Reforma- 
tory for Women. In Moulton v. Commonwealth, 215 Mass. 
525, the court held that a woman felon may be sent nowhere 
but to the Reformatory for Women. In G. L., c. 279, § 16, 
it is provided that : — 

A female, convicted of a crime punishable by imprisonment in a jail 
or house of correction, may be sentenced to the reformatory for women. 

The statutes have provided for a separate prison for women. 

In view of the statutes and the cases, the definition of a 

felony or a misdemeanor will be controlled by the place 



158 * OPINIONS OF THE ATTORNEY-GENERAL. 

where the prisoner is to serve his sentence. The statutes 
provide that for a misdemeanor persons may be sentenced 
to the reformatory for an indeterminate term. The mider- 
lying principle is, of course, to give the prisoner an oppor- 
tunity to reform and become a useful citizen of the com- 
munity, and that that reform cannot be obtained unless 
there is an indeterminate sentence so that the necessary 
moral and educational training be accomplished. 

In the case in issue we have a woman sentenced to the 
reformatory for fornication, and on her attempt to escape 
she is resentenced to the reformatory. There is nothing in 
our statutes which specifically states that escape from an 
institution is a felony. G. L., c. 268, § 16, provides that 
the penalty for escaping or attempting to escape from a 
penal institution shall be punishment by imprisonment in 
the institution to which he was originally sentenced for a 
term not exceeding five years. 

The original sentence was for a misdemeanor, and the 
prisoner was given an indeterminate sentence. Her at- 
teihpt to escape is not any greater crime than her original 
crime, in view of the statute requiring the return to the 
"same institution." A felony being a crime that is punish- 
able by imprisonment in State Prison and not the sentence 
itself, the institution to which a person may be sentenced 
being the controlling factor in deciding what is a felony or a 
misdemeanor, and the Reformatory for Women being an 
institution where a woman may be sentenced for a felony 
and a misdemeanor, and, further, there being nothing in the 
statutes classifying escapes from institutions, it seems to me 
to be equitable and fair that the original sentence should 
be the controlUng factor in deciding whether escape is a 
felony or a misdemeanor. I cannot see how any other 
conclusion can be reached, where the statutes are silent in 
regard to classifying or distinctly stating whether an escape 
from an institution is a felony or a misdemeanor. 

It is my opinion, therefore, that the escape from the 
Reformatory for Women in the case in issue was a mis- 



JAY R. BENTON, ATTORNEY-GENERAL. 159 

demeanor, and that consideration of escapes from the Re- 
formatory for Women should be governed by the original 
sentence given for the crime which was originally com- 
mitted. 



Sale, Rental and Leasing of Firearms — Non- 
resident — License. 

A non-resident of Massachusetts must oVjtain a permit to purchase, rent or lease 
firearms, as provided by St. 1926, c. 395, §§ 131A and 123. 

You request my opinion whether a non-resident of ZVtlS°^'f 
Massachusetts must obtain a permit to purchase firearms, Pubii||afety. 
as provided by St. 1926, c. 395, § 131 A, and whether a non- oct_ober6. 
resident must comply with the other provisions of the law 
as set forth in St. 1926, c. 395, more specifically section 123 
of said act. 

St. 1926, c. 395, § 123, is an act regulating the sale, rental 
and leasing of certain firearms and prohibiting loans of 
money thereon. The second condition of said section reads 
as follows : — 

That every licensee shall before delivery of a firearm make or cause 
to be made a true entry in a sales record book to be furnished by the 
licensing authorities and to be kept for that purpose, specifying the 
description of the firearm, the make, number, whether single barrel, 
magazine, revolver, pin, rim or central fire, whether sold, rented or 
leased, the date and hour of such delivery, and shall, before delivery 
as aforesaid, require the purchaser, renter or lessee personally to write 
in said sales record book his full name, sex, residence and occupation. 
The said book shall be open at all times to the inspection of the licensing 
authorities and of the police. 

The eighth condition of said section provides : — 

That no firearm shall be sold, rented or leased to a person who has not 
a permit, then in force, to purchase, rent or lease a pistol or revolver 
issued under section one hundred and thirty-one A. 



160 OPINIONS OF THE ATTORNEY-GENERAL. 

The ninth condition provides : — 

That upon a sale, rental or lease of a firearm, the licensee . . . shall 
take up such permit and shall endorse upon it the time and place of said 
sale, rental or lease, and shall forthwith transmit the same to the com- 
missioner of public safety. 

St. 1926, c. 395, § 131A, provides: — 

A licensing authority under the preceding section, upon the appli- 
cation of a person qualified to be granted a license thereunder by such 
authority, may grant to such a person, other than a minor, a permit to 
purchase, rent or lease a pistol or revolver if it appears that such purchase, 
rental or lease is for a proper purpose, and may reVoke such permit at 
will. Such permits shall be issued on forms furnished by the commis- 
sioner of public safety, shall be valid for not more than ten days after 
issue, and a copy of every such permit so issued shall within one week 
thereafter be sent to the said commissioner. Whoever issues a permit 
in violation of this section shall be punished by imprisomnent for not less 
than six months nor more than two years in a jail or house of correction. 

There is nothing in this law which makes any distinction 
relating to residents or non-residents of this State. The 
act reads that "persons" shall do or shall be prohibited from 
doing. It is very apparent that by the precise language 
used whoever purchases a firearm in Massachusetts must 
comply with the provisions of this act. This act is a pro- 
hibition to sellers, and makes it mandatory that full knowl- 
edge and information be given to the proper authorities 
before a person can purchase a revolver or a firearm. The 
purpose and scope is to prevent the promiscuous sale, rental 
or lease of firearms to irresponsible persons or criminals. 
The purpose is that the traffic of firearms shall be exposed 
to the scrutiny of the proper authorities and that criminals 
and irresponsible persons shall be unable to obtain firearms 
easily. This law makes it mandatory that records be kept, 
that persons purchasing, leasing or renting firearms must 
sign personally, in a book kept for that purpose, their name, 
residence, sex, etc., and must first show good reason why a 
permit should be issued to them for the purchase, rental 



JAY R. BENTON, ATTORNEY-GENERAL. 161 

or lease of firearms. It is very apparent, therefore, that the 
act was intended to apply to all persons. 

In my opinion, this act applies to all persons who purchase, 
rent or lease a firearm in Massachusetts, whether resident 
or non-resident. 



Compulsory Automobile Liability Security — Division 
OF Highways — Deposits by Owners of Motor 
Vehicles. 

Savings bankbooks may be accepted as deposits under G. L., c. 90, § 34E. 
Securities deposited should be so prepared as to be immediately available for sale 

when necessary. 
Liability for loss of deposits might arise by reason of negligence. 
All deposits are to be held for at least one year after expiration of registration of 

motor vehicles. 



To the Coin- 



October 22. 



You have asked my opinion in regard to seven questions m^ssioner^of 
connected with the practical operation of St. 1925, c. 346, " me "'^ ^' 
as amended, commonly called the Massachusetts Compul- 
sory Automobile Liability Security Act. The principal 
portion of the law applicable to a consideration of all these 
questions is now set forth in G. L., c. 90, § 34E. 

Your first question is as follows : — 

Should the Division of Highways accept properly transferred savings 
bank account books as cash or security? 

Savings bank account books are evidences of indebtedness 
such as are included in the words of said section 34E, in 
which the applicant for registration is authorized to deposit 
with the Division, in lieu of cash, ''bonds, stocks or other 
evidences of indebtedness satisfactory to the division, of 
the market value of not less than five thousand dollars, as 
security." If such books are properly transferred so that 
they can be disposed of in the manner provided by the 
statute, if it becomes necessary to liquidate them, and are 
of the prescribed value, it is within the discretion of the 
Commission to accept them as security. 



162 OPINIONS OF THE ATTORNEY-GENERAL. 

Your second question is as follows : — 

Where registered bonds, stock, etc., are deposited with the Division, 
is it necessary that the depositor cause the ownership to be transferred 
on the company's books? 

Said section 34E provides a mode of turning the securities 
deposited with the Commission into money when necessary 
to liquidate, the mode being a sale by public auction. 
Bonds, stocks and other evidences of indebtedness deposited 
with the Division should be transferred on the company's 
books, or such other action should be taken in regard to them 
as will make the right to possession and control, for the 
purposes of the statute, in the Commission apparent and 
the securities immediately available for sale by the Commis- 
sion at any time when it may become necessary to liquidate, 
without the necessity of any further steps being taken by 
the depositor. 

Your third question is as follows : — 

In case of loss by theft, or otherwise, of deposit, is the Division of 
Highways, or any member thereof, Hable in any way for the amount lost? 

The individual members of the Division of Highways 
might be liable for loss of securities deposited with them, 
either by theft or otherwise, if such loss was due to the 
negligence of any member or members of the Commission, 
respectively, in regard to securing the reasonable safety 
of the same. 

Your fourth question is as follows : — 

Should all deposits be held by the Division for one year after expiration 
of registration term? 

G. L., c. 90, as amended by St. 1926, c. 368, § 2, provides, 
in section 34G, that the Division shall retain cash or securi- 
ties deposited with them, and shall not deliver the same or 
the balance thereof to the registrant, the depositor, or his 
order, until the expiration of the time within which actions, 
the payment of judgments in which are secured by such 
deposits, may be brought. 



JAY R. BENTON, ATTORNEY-GENERAL. 163 

G. L., c. 260, § 4, as amended by St. 1926, c. 368, § 10, 
provides that "actions of tort for bodily injuries or for 
death, the payment of judgments in which is required to be 
secured by chapter ninety, . . . shall be commenced only 
within one year next after the cause of action accrues." 

These sections make necessary the retention by the 
Division of securities for at least one year after the expira- 
tion of the registration term. Nor, where written notice 
is filed with the Division stating that an action has been 
brought against the registrant, may the securities be re- 
turned to the depositor until such action is finally disposed 
of, as provided in said section 34G. 

Your fifth question is as follows : — * 

If a deposit is made to cover registration of motor vehicle, and the 
owner during the fiscal year sells or exchanges said motor vehicle, pro- 
curing a new motor vehicle in place of the previously registered vehicle, 
is it necessary that additional cash or securities be deposited for the new 
vehicle, holding the previous deposit for one year after the date of disposal 
of the first vehicle? 

The intention of the Legislature, as disclosed in the stat- 
utes under consideration, is to provide that the prescribed 
amount of security shall be provided with relation to each 
motor vehicle registered. It would therefore be necessary, 
under the circumstances described in your question, that 
the deposit made to cover the motor vehicle originally 
registered should be held for at least one year after the 
expiration of the registration upon that particular car, and 
that a new deposit should be made to cover a second motor 
vehicle registered thereafter. 

Your sixth question is as follows : — 

In case a certified check is deposited, should the check be converted 
to cash by the Division and reinvested in savings banks, or should it 
be held as a check in trust of the Division? 

A certified check is not evidence of indebtedness, within 
the meaning of said section 34E, and should be converted 
into money, and in the latter form retained and deposited 



164 OPINIONS OF THE ATTORNEY-GENERAL. 

by the Commission in accordance with the provisions of 
said section. 

Your seventh question is as follows : — 

If a deposit is made to cover registration of a motor vehicle and the 
owner takes out liabiUty insurance before the expiration of the year 
covered by the registration, can the deposit be returned when the insur- 
ance becomes effective, or must it be held, and for how long? 

The liability insurance policy taken out by the owner of 
the motor vehicle, as described in your seventh question, 
would not afford coverage to such owner for accidents 
which might have occurred prior to the taking out of the 
policy, and it would therefore be necessary for the Division 
to retain the deposited security for a period of at least a 
year from the time when such pohcy was taken out, to 
protect persons who might have suffered injury due to the 
operation of the motor vehicle during such period. 



jay r. benton, attorney-general. 165 

United States Apple Grading Law — Massachusetts 
Apple Grading Law — Interstate Commerce. 

The United States Apple Grading Law refers to apples packed in barrels only, 
and does not apply to apples packed or repacked in this Commonwealth in 
boxes. The Massachusetts Apple Grading Law applies to apples packed in 
boxes, even though they purport to be branded in accordance with the United 
States Apple Grading Law. 

The powers of the Commissioner of Agriculture under the Massachusetts Apple 
Grading Law can be exercised only while the apples are still within the jurisdic- 
tion of the Commonwealth of Massachusetts and have not been shipped in 
interstate or foreign commerce. Exportation is generally held not to begin 
until the product is committed to a carrier for transportation out of the State 
to the State of destination, or has actually started on its ultimate passage to 
that State. Until then it is reasonable to regard the product as not only within 
the State of its origin but as a part of the general mass of property of that State, 
and subject to its jurisdiction. 

Apple inspectors, in performing thfeir duties under the Massachusetts Apple Grad- 
ing Law, are limited to apples packed or repacked in this Commonwealth 
but not in process of actual shipment out of the State. Violations of such law 
may be prosecuted by complaint entered in the municipal, district or police 
court or in the Superior Court of the Commonwealth. 

You request my opinion on the following questions : — to the com- 

^ 'J i^ o -1 missioner of 

Agriculture. 

1. Does the "United States Apple Grading Law" apply to apples ^^ is^s 
packed or repacked in the Commonwealth in boxes, when the Federal 
law specifically provides for barrel containers? 

2. In the event that the "United States Apple Grading Law" does 
not apply to apples packed or repacked in the Commonwealth because 
of failure to pack or repack in containers authorized by the Federal law, 
does the Massachusetts Apple Grading Law apply to apples packed or 
repacked in boxes branded in accordance with the "United States Apple 
Grading Law"? 

3. How far would the activities of the apple inspectors of the Depart- 
ment of Agriculture, under G. L., c. 94, § 110, be restricted where apples 
packed or repacked in the Commonwealth and marked or branded in 
accordance with the "United States Apple Grading Law" but failing to 
comply with this law in respect to containers or packages, are shipped in 
foreign commerce and the consignor has a receipt from a foreign steam- 
ship company for said shipment of apples? 

4. Does G. L., c. 94, § 114, refer only to apples that have actually 
commenced their final movement for transportation from the State of 
their origin to that of their destination? 

5. Does G. L., c. 94, § 110, apply to apples packed or repacked in the 
Commonwealth and packed and branded in accordance with the "United 
States Apple Grading Law" but not actually in their final movement for 
transportation from the State of their origin to that of their destination? 



November 4. 



166 OPINIONS OF THE ATTORNEY-GENERAL. 

6. If G. L., c. 94, § 114, refers only to apples that have commenced their 
final movement from the State of their origin to that of their destination, 
and if apple inspectors of the Commonwealth may inspect and take 
samples from "barreled apples" marked or branded in accordance with 
the "United States Apple Grading Law" but not in the process of actual 
shipment out of the State, in what court or courts should alleged violations 
under said act be prosecuted? 

1. U. S. Const., art. I, § 8, vests in Congress the power 
to "fix the standard of weights and measures." Acting 
under this power, Congress has enacted the United States 
Apple Grading Law, known as the Sulzer Bill (Pubhc, No. 
252, 61st Congress, H. R. 21480, approved August 3, 1912), 
which is an act to establish a standard barrel and standard 
grades for apples when packed in barrels. Section 1 of said 
act establishes the dimensions of the standard barrel for 
apples. Section 2 provides the standard grades for apples 
"when packed in barrels which shall be shipped or delivered 
for shipment in interstate or foreign commerce, or which 
shall be sold or offered for sale within the District of Colum- 
bia or the Territories of the United States." Said act refers 
to apples packed in barrels only, and does not provide grades 
for apples packed in boxes. It accordingly follows that the 
United States Apple Grading Law does not apply to apples 
packed or repacked in this Commonwealth in boxes, and I 
so answer your first question. 

2. The Commonwealth of Massachusetts has an apple 
grading law which regulates the grading, packing, marking, 
shipping and sale of all apples packed or repacked in Mas- 
sachusetts and intended for sale either within or without 
the Commonwealth. This act is found in G. L., c. 94. 
Section 100 provides the dimensions of the standard barrel 
and the standard box for apples. Section 101 provides the 
requirements of the standard grades of apples when packed 
or repacked in closed packages within the Commonwealth. 
While the United States Apple Grading Law does not apply 
to apples packed or repacked in the Commonwealth in boxes, 
the Massachusetts Apple Grading Law specifically does 



JAY R. BENTON, ATTORNEY-GENERAL. 167 

apply to apples packed or repacked in boxes, and I am 
accordingly of the opinion that the Massachusetts Apple 
Grading Law applies to such boxes even though they pur- 
port to be branded in accordance with the United States 
Apple Grading Law. 

3. Under G. L,, c. 94, § 110, the Commissioner of Agricul- 
ture is empowered to make and modify rules and regulations 
for enforcing the specified provisions of the Massachusetts 
Apple Grading Law, and is authorized, either in person or 
by his assistant, to have free access at all reasonable hours 
to each building or other place where apples are packed, 
stored, sold, or offered or exposed for sale, and further, may 
in person or by his assistant, open each box, barrel or other 
container, and upon tendering the market price may take 
samples therefrom. This power can, of course, be only 
exercised over such apples while they are still within the 
jurisdiction of the Commonwealth of Massachusetts and 
have not been shipped in interstate or foreign commerce, 
over which Congress has control. U. S. Const., art. I, § 8. 
Until said product has actually been "shipped" in inter- 
state commerce, the Massachusetts Apple Grading Law 
apphes thereto, and the powers and activities of the apple 
inspectors thereby granted may be fully exercised. The 
Massachusetts Apple Grading Law is not and cannot be 
a direct regulation of interstate or foreign commerce. It 
does not affect interstate or foreign commerce in any way 
and imposes no burden upon it. The statute is an attempt 
to protect the pubhc against fraud in the sale of apples, and 
to insure to all hke measure and grade when buying the 
same. See Commonwealth v. Gussman, 215 Mass. 349. 

There is a point of time when goods cease to be governed 
exclusively by State law and begin to be governed and pro- 
tected by the national law of commercial regulation, and 
that moment has been defined as the one in which they 
commence their final movement for transportation from the 
State of their origin to that of their destination. When 
a consignor has delivered his goods to a foreign steamship 



168 OPINIONS OF THE ATTORNEY-GENERAL. 

company and holds a receipt therefor, he has completed the 
last step in their final movement for transportation, and the 
goods themselves have become subject to the laws relating 
to foreign commerce. It accordingly follows that the activ- 
ities of the apple inspectors under G. L., c. 94, § 110, cannot 
be exercised over such apples, and I so answer question 3. 

4. G. L., c. 94, § 114, provides as follows: — 

Apples shipped in the course of interstate commerce and packed and 
branded in accordance with the act of congress approved August third, 
nineteen hundred and twelve, and known as "The United States Apple 
Grading Law," shall be exempt from sections one hundred and one to 
one hundred and seven, inclusive, one hundred and nine, one hundred and 
ten, one hundred and twelve and one hundred and thirteen. 

By its terms this section applies only to apples actually 
"shipped in the course of interstate commerce," and I am 
accordingly of the opinion that it refers only to apples that 
have actually commenced their final movement for trans- 
portation from the State of their origin to that of their 
destination, and I so answer your fourth question. 

5. It follows from my answer to question 3, that G. L., 
c. 94, § 110, applies only to apples packed or repacked in the 
Commonwealth but not actually in their final movement for 
transportation from the State of their origin to that of their 
destination, and, in my opinion, this is true regardless of 
the fact that said apples purport to be branded in accord- 
ance with the United States Apple Grading Law, inasmuch 
as under such circumstances such apples are not yet exports 
nor are they in process of exportation. Exportation is 
generally held not to begin until the product is committed 
to a carrier for transportation out of the State to the State 
of destination, or has actually started on its ultimate passage 
to that State. Until then it is reasonable to regard the 
product as not only within the State of its origin but as a 
part of the general mass of property of that State and sub- 
ject to its jurisdiction. See Diamond Match Co. v. Ontona- 
gon, 188 U. S. 82, and cases cited; Commonwealth v. Guss- 
man, supra. 



JAY R. BENTON, ATTORNEY-GENERAL. 169 

6. Inasmuch as it is my opinion that G. L., c. 94, § 114, 
refers only to apples that have commenced their final move- 
ment from the State of their origin to that of their destina- 
tion, and have accordingly become objects of interstate 
commerce, apple inspectors, in performing their duties 
under the Massachusetts Apple Grading Law, are limited to 
apples packed or repacked in this Commonwealth but not in 
process of actual shipment out of the State, If in the course 
of their duties alleged violations of the law of this Common- 
wealth are discovered, such violations may properly be 
prosecuted by a complaint entered in the municipal, dis- 
trict or police court, or, if preferred, in the Superior Court 
of the Commonwealth, within whose jurisdiction the offense 
occurred, and, if found guilty, the offender is subject to the 
punishment provided by G. L., c. 94, §§ 112 and 113, and 
I so answer your sixth and last question. See G. L., c. 218, 
§§ 26-37. 



Constitutional Law — Biennial Sessions. 

The Constitution provides that the General Court shall assemble every year on the 

first Wednesday of January. 
A change to biennial sessions can be made only by amendment to the Constitution 

under Mass. Const. Amend. XLVIII. 

You have asked me to advise you what would be the 2°4mor. 
procedure in order to give the people an opportunity of November n. 
voting on the question of biennial sessions, providing the 
Legislature refuses to put it on the ballot. 

The Constitution provides that "the general court shall 
assemble every year on the first Wednesday in January." 
See Mass. Const., pt. 2nd, c. I, § I, art. I; Mass. Const. 
Amends. X and LXIV. 

The only provision for amendment to the Constitution is 
contained in Mass. Const. Amend. XLVIII, under which a 
constitutional amendment may be made in one of three 
ways: (1) by initiative petition; (2) by legislative substi- 
tute; and (3) by legislative amendment. See VII Op. 



170 



OPINIONS OF THE ATTORNEY-GENERAL. 



Atty. Gen. 377. In order to be brought before the people, 
a proposal for amendment must first be introduced into the 
General Court, either by a member or by an initiative 
petition signed by not less than 25,000 quahfied voters. 
Subsequent proceedings are governed by the provisions of 
Mass. Const. Amend. XLVIII. 



Board of Registration in Pharmacy — Applicant for 
Examination — Conviction of Violation of any 
OF THE Laws of the Commonwealth — Assistant 
Pharmacist. 

The Board of Registration in Pharmacy cannot properly refuse to examine an 
applicant for registration as a pharmacist or as an assistant pharmacist, al- 
though such applicant has been convicted of a violation of any of the laws of 
the Commonwealth, if such applicant has furnished satisfactory evidence 
complying with the law and regulations of the Board as to age, drug store 
experience and citizenship; but the Board may withhold for a time or refuse 
registration as a pharmacist or as an assistant pharmacist to an applicant 
who has been examined and who has obtained a passing mark, if it appears 
to the Board that he has been recently convicted of a violation of any laws of 
the Commonwealth which have such bearing on the practice of the business of 
a pharmacist as in the opinion of the Board would disqualify him from registra- 
tion. 

A registered assistant pharmacist desiring to do business as a pharmacist shall, 
upon payment of five dollars to the Board of Registration in Pharmacy, be 
entitled to examination, and, if found qualified, shall be registered as a pharma- 
cist and receive a certificate signed by the president and secretary of the Board. 



To the Board 
of Registration 
in Pharmacy. 

1926 
November 15. 



You request my opinion on the following questions : — 

First. — Can the Board of Registration in Pharmacy refuse to ex- 
amine an applicant for registration as a pharmacist or as an assistant 
pharmacist who has been convicted of a violation of any of the laws 
of the Commonwealth, the applicant having furnished satisfactory 
evidence complying with the law and the regulations of the Board as to 
age, drug store experience and citizenship? 

Second. — Can the Board of Registration in Pharmacy withhold for 
a time or refuse registration as a pharmacist or as an assistant phar- 
macist to an a'pplicant who has been examined and who has obtained 
a passing mark, because of court conviction of a violation of any laws 
of the Commonwealth? 

Third. — An applicant for registration as an assistant pharmacist 



JAY R. BENTON, ATTORNEY-GENERAL. 171 

has been examined and registered as an assistant pharmacist; is it neces- 
sary under the statute that this appHcant should wait for the expiration 
of three months before he may be examined for registration as a phar- 
macist? 

I answer your questions in the order submitted. 

First. — The law governing the examination of appli- 
cants for registration as pharmacists is contained in G. L., 
c. 112, § 24, as amended by St. 1924, c. 53. Section 27 
empowers the Board of Registration in Pharmacy to hear 
all complaints made to it, against any person registered as a 
pharmacist, charging him in his business as a pharmacist 
with violating any laws of the Commonwealth. Section 28 
empowers the full Board, sitting at such hearing, to suspend 
the effect of the certificate of registration as a pharmacist 
for such term as it fixes, if it finds such person guilty. 
Section 61, as amended by St. 1921, c. 478, authorizes the 
Board of Registration in Pharmacy, after a hearing, by a 
majority vote of the whole Board, to suspend, revoke or 
cancel any certificate, registration, license or authority 
issued by it, if it appears to the Board that the holder thereof 
is insane, or is guilty of deceit, malpractice, gross mis- 
conduct in the practice of his profession, or of any offense 
against the laws of the Commonwealth relating thereto. 

It is to be noted that the power of the Board of Registra- 
tion in Pharmacy, with respect to pharmacists convicted 
of violation of laws of the Commonwealth, is limited to 
registered pharmacists, not to applicants for registration as 
pharmacists. I am of the opinion that under the express 
language of G. L., c. 112, § 24, any person who desires to 
do business as a pharmacist shall, upon payment of five 
dollars to the Board of Registration in Pharmacy, be en- 
titled to examination. It accordingly follows that the 
Board of Registration in Pharmacy cannot properly refuse 
to examine an applicant for registration as a pharmacist or 
as an assistant pharmacist, although such applicant has 
been convicted of a violation of any of the laws of the 
Commonwealth, if such applicant has furnished satisfactory 



172 OPINIONS OF THE ATTORNEY-GENERAL. 

evidence complying with the law and regulations of the 
Board as to age, drug store experience and citizenship, and 
I so answer your first question. 

Second. — A literal construction of St. 1924, c. 53, un- 
doubtedly requires the Board of Registration in Pharmacy 
to examine any person applying therefor, upon payment of 
five dollars, and to issue to him a certificate as a pharmacist 
"if found qualified." While the qualification apparently 
refers to the examination, nevertheless I am of the opinion 
that the Board of Registration in Pharmacy is vested with 
some discretion in order to prevent the registration of unfit 
persons as pharmacists. The certificate of the Board of 
Registration in Pharmacy is a Ucense to the holder thereof 
to do a business which the Legislature has seen fit to regu- 
late, under its authority to make laws for the welfare and 
good of the citizens of the Commonwealth, and to a large 
extent the Legislature has vested in the Board of Registra- 
tion in Pharmacy the authority of executing those laws. 
No man has the right to conduct the business of a pharmacist 
or assistant pharmacist until he has satisfied the Board that 
he is "qualified." 

You do not state just what laws of the Commonwealth 
have been violated by the apphcant. Obviously, minor 
infractions of the law which have no reference or bearing 
upon the fitness of an applicant to engage in the business 
of a pharmacist would not be sufficient to cause the Board 
of Registration in Pharmacy to refuse registration, if such 
applicant has successfully passed his examination. Again, 
you do not state how long ago such convictions occurred, 
which might well have an important bearing upon the 
question. I am of the opinion, however, that the matter is 
entirely within the sound discretion of the Board of Regis- 
tration in Pharmacy. 

It accordingly follows that the Board of Registration in 
Pharmacy may withhold for a time or refuse registration as 
a pharmacist or as an assistant pharmacist to an applicant 
who has been examined and who has obtained a passing 



JAY R. BENTON, ATTORNEY-GENERAL. 173 

mark, if it appears to the Board that he has been recently 
convicted of a violation of any laws of the Commonwealth 
which have such bearing on the practice of the business of 
a pharmacist as, in the opinion of the Board, would dis- 
qualify him from registration. 

Third. — G. L., c. 112, § 24, authorizes the Board of 
Registration in Pharmacy to grant certificates of registra- 
tion as assistants, after examination, upon the same terms 
as are required for registration as pharmacists. The obli- 
gation to wait three months before taking an examination 
apphes only to a person faihng to pass an examination. It 
accordingly follows that a registered assistant pharmacist 
desiring to do business as a pharmacist shall, upon payment 
of five dollars to the Board of Registration in Pharmacy, 
be entitled to examination, and, if found qualified, shall be 
registered as a pharmacist and shall receive a certificate 
signed by the president and secretary of the Board. 



License to keep Gasoline — Procedure upon Appli- 
cations — Board of Street Commissioners of Boston. 

The board of street commissioners of the city of Boston, on application for Hcenses 
to keep gasoline, addressed to them as persons designated by the State Fire 
Marshal, under G. L., c. 148, § 31, as amended by St. 1921, c. 485, § 1, to grant 
such licenses, proceeds under the provisions of G. L., c. 148, § 14, as amended, 
and not under the provisions of St. 191.3, c. 577, §§1 and 2. 

You state that the board of street commissioners of the '^^°JtlS°'^'i 
city of Boston has been designated by the State Fire Mar- ^^^'S' *''• 
shal, under the provisions of G. L., c. 148, § 31, as amended 
by St. 1921, c. 485, § 1, to grant licenses for the keeping, 
storage and sale of gasoline. You request my opinion as 
to whether, in giving notice of the time and place of hear- 
ings upon application for such licenses, the board of street 
commissioners proceeds according to the provisions of G. L., 
c. 148, § 14, as amended by St. 1925, c. 335, or according to 
the provisions of St. 1913, c. 577, §§1 and 2. 

The provisions of St. 1913, c. 577, as amended by St. 



November 22. 



174 OPINIONS OF THE ATTORNEY-GENERAL. 

1914, c. 119, relate to the regulation of the erection and 
maintenance of buildings as garages for the storage, keeping 
or care of automobiles in the city of Boston. They do not 
describe the motive power of the automobiles to be stored, 
kept or cared for. They require the issuance of a permit 
from the board of street commissioners before a building 
may be erected and maintained for such use. They regu- 
late construction. They designate the authorization for 
such use a "permit," not a "license." They specify the 
details to be observed in application for and issuance of 
the permit, compliance with which details affects the 
jurisdiction of the board. See Marcus v. Board of Street 
Commissioners, 252 Mass. 331, 335. They vest authority 
to issue such permits in the street commissioners exclu- 
sively. Foss V. Wexler, 242 Mass. 277, 279. The permit, 
when granted, partakes of a personal privilege and grant 
which attaches to the land whereon the building is to be so 
erected and maintained. Hartley v. Cook, 245 Mass. 563, 
565. 

The authority of the board of street comiriissioners is 
entirely distinct from the authority of the Fire Marshal, 
in him vested by G. L., c. 148, § 30 (formerly St. 1914, 
c. 795, § 3), and exercised by the board on delegation to it 
by him under the provisions of G. L., c. 148, § 31. V Op. 
Atty. Gen. 718. VI Op. Atty. Gen. 329, 580. See also 
McPherson v. Street Commissioners, 251 Mass. 34, 38. 

It follows, therefore, that, in the exercise of powers of the 
Fire Marshal, delegated to it by him, under the provisions 
of G. L., c. 148, § 31, as amended by St. 1921, c. 485, § 1, 
to grant licenses for the keeping, storage and sale of gasoline, 
the board of street commissioners should proceed according 
to the provisions of G. L., c. 148, § 14, as amended by St. 
1921, c. 485, § 3, St. 1924, c. 254, and St. 1925, c. 335, § 1, 
relating to such licenses, authority for the grant of which 
in the Metropolitan District is vested in the Fire Marshal 
by G. L., c. 148, § 10 (as amended by St. 1921, c. 273 and 
c. 485, § 2) and § 30. 



jay r. benton, attorney-general. 175 

Permit to keep Gasoline — State Fire Marshal — 
Consideration of Welfare of a Community. 

In determining the grant of a permit to keep gasoline, under G. L., c. 148, § 14, 
outside the Metropolitan District, the State Fire Marshal has not the same 
right to consider the inconvenience and annoyance of persons affected and the 
general order and welfare of the community, as well as fire hazard, as in making 
a decision upon an appeal to him, under G. L., c. 148, § 45, from a decision of 
a board issuing a license to conduct or maintain a garage within the district. 

In the given case, where the sole objection to the granting by the State Fire Marshal 
of a permit to keep gasoline, under G. L., c. 148, § 14, outside the Metropolitan 
District, is danger to school children, anticipated to be occasioned by persons 
or vehicles in passing to, from or upon the site of the purposed keeping, the 
State Fire Marshal is confined to consideration of fire hazard. 

You inform me that the board of selectmen of Needham '^JtlS'^'^'i 
has granted a hcense for the keeping, storage and sale of Pubiic^safety. 
gasoline, acting mider the statutory authority of G. L., c. November 22. 
148, § 14, and not under any delegated authority of the 
Fire Marshal; that application was made to the Fire 
Marshal for a permit required by G. L., c. 148, § 14; that 
at the hearing upon the application the sole objection was 
that of danger to school children, and that the Marshal has 
the application under advisement. You request my opinion 
whether the State Fire Marshal, in determining the issuance 
of a permit, has the same right to consider not only fire 
hazard but the inconvenience and annoyance to persons 
affected and the general good order and welfare of the com- 
munity, as the Attorney-General advised him, in an opinion 
dated November 28, 1923, he had in making a decision upon 
an appeal from the action of the board of license commis- 
sioners of Cambridge in granting a license to conduct or 
maintain a garage and to keep or store volatile inflammable 
fluids in connection therewith. 

G. L., c. 148, § 14, as amended by St. 1925, c. 335, pro- 
vides, in part, as follows: — 

No building or other structure shall ... be used for the keeping, 
storage, manufacture or sale of any of the articles named in section ten 
(inflammable fluids, etc.) . . . unless the . . . selectmen shall have 
granted a license therefor . . . after a public hearing, . . . and unless a 



176 OPINIONS OF THE ATTORNEY-GENERAL. 

permit shall have been granted therefor by the marshal or by some 
official designated by him for the purpose; . . . 

There are two distinct prerequisites for the use of a build- 
ing or other structure for the keeping of inflammables. One 
is a license; the other is a permit. Though the words are 
frequently employed as synonyms, the statute makes a 
distinction between them by differing appellations. One is 
issued by a local tribunal; the other is granted by an official 
at the State House, or by some local officer designated by 
him. G. L., c. 148, § 19, as amended by St. 1921, c. 485, 
§ 4. One is determined by a power vested in an agency, the 
personnel of which is several; the other, by a power vested 
in an agency which is single. Thus, in the process of deter- 
mination of one, opportunities, enabling more embracing 
consideration, are more immediate both for the determining 
power and the general public; in the other, they are more 
remote. A public hearing and attendant formalities are 
prescribed antecedents to the determination of one, but not 
to the other. Thus, the issuance of one is statutorily 
premised upon an inquiry compulsory and comprehensive; 
in the grant of the other it is not. 

The requirement of a license by the mayor and aldermen 
or selectmen for the storage and keeping in any city or town 
appears first in St. 1865, c. 285, § 1; the requirement of a 
permit by the State Fire Marshal in St. 1904, c. 370, § 3, 
which office was created by St. 1894, c. 444, § 1, with duties 
relating to investigations of causes and circumstances of 
fires occurring in the Commonwealth (§2). By St. 1905, 
c. 280, § 3, power to issue permits was vested in the Chief 
of the District PoHce. By Gen. St. 1919, c. 350, pt. Ill, all 
powers of the District Police were transferred to the Depart- 
ment of Public Safety, to be exercised, in certain respects 
relating to fire prevention, by the State Fire Marshal 
(§§ 99-104). Historically, therefore, they are distinct, in 
that the exercise of the power to grant permits for keeping 
and storage of inflammables in localities outside the Metro- 
poHtan District has been vested in appointive officials whose 



JAY R. BENTON, ATTORNEY-GENERAL. 177 

functions have related to police protection and fire preven- 
tion, and the power to issue licenses has been vested in 
officials, elected by the localities, whose functions related 
to the administration of general municipal business. 

In cities and towns in the Metropolitan District the Fire 
Marshal has the power of selectmen to license persons or 
premises. G. L., c. 148, § 30. The power to issue a license 
and the power to grant a permit are vested therein in one and 
the same official. In the determination of issuance and 
grant the Fire Marshal may entertain considerations which 
the powers peculiarly vested in him in the district require 
for their exercise. In the exercise in the district of the 
powers of local tribunals to pass upon and determine whether 
a license should be issued, you were advised, in an opinion 
dated November 28, 1923, relating to the issuance of a 
license in the city of Cambridge, that the Fire Marshal had 
the right to consider the general good order and welfare of 
the community. (VII Op. Atty. Gen. 293.) 

Cambridge is included in the Metropolitan District; 
Needham is not. G. L., c. 148, § 28. 

In the pending application for the grant of a permit in a 
locality outside the district, wherein the exercise by the 
Fire Marshal of the power of issuance of a license is not 
invoked, I am of opinion that the Fire Marshal may con- 
sider the fire hazard only. 



178 



OPINIONS OF THE ATTORNEY-GENERAL. 



Corporations 



Articles of Organization 
Corporate Purposes. 



Illegal 



To the Com- 
missioner of 
Corporations 
and Taxation. 

1926 
November 24. 



The purpose of carrying on the business of wine and liquor dealers is not a lawful 
one which may be included in the powers of a corporation organized to carry 
on the business of hotel and innkeeper. 

The Commissioner of Corporations is not required to perform any duty in regard 
to articles of organization containing an illegal purpose, after their return to 
him by the Secretary of the Commonwealth without the issuance of a certifi- 
cate of organization by the latter. 

The act of filing articles of organization with the Secretary of the Commonwealth 
does not of itself give corporate life to the body to which they relate, if they 
contain illegal purposes. 

You have asked my opinion relative to your official actions 
in relation to the organization or attempted organization of 
a certain corporation. 

You state that the purposes for which the corporation was 
to be formed, as originally contained in the articles of 
organization, were as follows : — 

To carry on the business of hotel and innkeepers, restaurant keepers, 
caterers, keepers of liveiy stables and garages for horse-less conveyances 
and motor vehicles of all kinds, warehousemen, tobacconists, dealers in 
provisions, wine and liquor dealers, barbers and hair dressers, news 
dealers and proprietors or managers of theaters, opera houses and other 
places of public entertainment. 

To purchase, lease, hire or otherwise acquire, to hold, own, maintain, 
improve, alter and to sell, convey, mortgage or otherwise dispose of real 
estate and personal property, and any interest therein, in or out of this 
state, and in any state in the United States or any foreign country, inci- 
dental to the purposes of the corporation. 

To acquire use and to dispose of any real or personal property which 
may be deemed useful and convenient in the carrying out of the main 
purposes for which the corporation is formed and organized and in general 
to do things which may be necessary and desirable for the carrying on of 
a hotel business. 

You have advised me that the last sentence of such pur- 
poses, as it appears on the first page of your letter, was in 
fact added to the original description of purposes, contained 
in the articles of organization to which you gave your 
approval October 4, 1926, and transmitted to the Secretary 
of the Commonwealth on the same day, after the return 



JAY R. BENTON, ATTORNEY-GENERAL. 179 

to you, on October 19th, by the Secretary of the Common- 
wealth of such articles of organization. You have advised 
me that the addition of such sentence was made by you 
personally to the original articles of association, with the 
approval of some of the subscribers thereto but without 
any action on their part; that the articles of organization 
with the said sentence so written in by you, but without 
any action in relation thereto having been taken by the 
subscribers or any new endorsement of approval of the 
articles having been made by you, were again transmitted 
by you to the Secretary on or about October 19th; and that 
on November 4th the Secretary again returned the articles 
to you and declined to issue a certificate of incorporation. 

The sentence added by you to the purposes contained in 
the original articles of organization, made subsequent to 
your approval of and after the transmission of such articles 
to the Secretary, was not properly a part of the articles of 
organization which were transmitted to the Secretary for 
filing, and a consideration of the effect of such additional 
sentence upon the purposes of the organization is not, 
under the circumstances, essential in answering the ques- 
tions in your letter. The added sentence as given in your 
communication reads thus: "The business of dealing in 
wines and liquors prohibited under the laws is to be carried 
on only outside the United States and its possessions or de- 
pendencies." 

The specific questions which you ask me in your letter 
are: — 

1. Have I approved corporation purposes which are 
contrary to law? 

2. If not, shall I hand to the Secretary of the Common- 
wealth these articles of organization? 

3. If I have approved articles of organization contrary 
to the law, and it appears that corporate existence begins 
on the filing with the Secretary of the articles of organiza- 
tion, what action shall I take as regards these articles of 
organization? 



180 OPINIONS OF THE ATTORNEY-GENERAL. 

1. The main purpose of the proposed corporation, as 
described in the articles of organization, is "to carry on the 
business of hotel and innkeepers," All the other purposes 
are obviously intended, from the context, to be exercised in 
connection therewith. To carry on the business of "wine 
and liquor dealers," more particularly in relation to the 
general business of an hotel or innkeeper, is not, in my 
opinion, a lawful purpose for which a corporation may be 
organized in this Commonwealth. 

The ordinary meaning attaching to the words "the busi- 
ness of wine and liquor dealers," without hmiting or qualify- 
ing adjectives in relation to them, is not that of dealers in 
non-intoxicating beverages alone. The words in their 
natural use have not so limited a meaning but at least 
include, if, indeed, they do not invariably mean solely, 
dealers in intoxicating wines and liquors. All the modes of 
business which a "dealer" in such intoxicating beverages 
commonly carries on are made specifically unlawful by 
statute in this Commonwealth. 

There is nothing in the articles of organization concerning 
the purposes of the proposed corporation which tends so to 
qualify or limit the words "the business of wine and liquor 
dealers" as to bring the proposed power within any of the 
existing exceptions to the illegality under our laws of dealing 
in wines and liquors. It is possible that under some cir- 
cumstances a corporation might be organized for the 
purpose of carrying on the business of wine and liquor 
dealers, where, by a proper use of words in the articles of 
organization, it was made plain that the power given in this 
respect was so limited as to authorize the doing of nothing 
contrary to the laws of the State of incorporation or to those 
of any place where the corporation might seek to do business. 

I answer your first question in the affirmative. 

2. As to your second question, inasmuch as your ap- 
proval has been given to articles of organization containing 
an illegal purpose, you are not required to perform any 



JAY R. BENTON, ATTORNEY-GENERAL. 181 

further duty in regard to such articles, now that they have 
been returned to you by the Secretary. 

3. As to your third question: G. L., c. 156, § 11, is as 
follows : — 

The articles of organization, the agreement of association, and the 
record of the first meeting of the incorporators, including the by-laws, 
shall be submitted to the commissioner, who shall examine them and 
who may require such amendment thereof or such additional informa- 
tion as he deems necessary. If he finds that the provisions of law rela- 
tive to the organization of the corporation have been complied with, he 
shall endorse his approval on the articles. Thereupon, the articles shall, 
upon pajmient of the fee provided by section fifty-three, be filed in the 
office of the state secretary, who shall cause them and the endorsement 
thereon to be recorded. 

G. L., c. 156, § 12, is, in part, as follows: — 

Upon the approval and fifing as above provided of the articles of 
organization of a corporation organized under general laws, the state 
secretary shall issue a certificate of incorporation in the following form: 

If such corporation is organized with capital stock without par value, 
the form of said certificate may be modified to conform thereto. 

The state secretary shall sign the certificate of incorporation and 
cause the great seal of the commonwealth to be thereto affixed, and such 
certificate shall have the force and effect of a special charter. The 
existence of every corporation organized under general laws shall begin 
upon the fifing of the articles of organization in the office of the state 
secretary. The state secretary shall also cause a record of the certificate 
of incorporation to be made, and such certificate, or such record, or a 
certified copy thereof, shall be conclusive evidence of the existence of 
such corporation. 

Although section 12 states that "the organization of 
every corporation organized under general laws shall begin 
upon the filing of the articles of organization in the office of 
the state secretary," it does not follow that a body organized 
for an illegal purpose, among others, gains a corporate 
existence by the apparent performance of the acts required 
by the law as prehminary to incorporation. Where pur- 
poses are illegal a body has not been organized under general 
laws into a corporation, within the meaning of sections 6 



182 OPINIONS OF THE ATTORNEY-GENERAL. 

and 12, and the act of filing articles with the Secretary, 
even when the articles have been approved by you, does not 
give corporate life to the body nor fix the date upon which 
its existence begins, more particularly in the absence of a 
certificate of incorporation. 

I am not advised that the subscribers of the articles of 
agreement under consideration intend to attempt to exer- 
cise corporate powers without the certificate of incorpora- 
tion which has been refused them. It rather appears from 
the letter of the Secretary to you of November 4th that 
they do not intend so to do, but, rather, plan to seek to 
incorporate under new articles which shall not contain 
mention of an illegal purpose. I am of the opinion that at 
the present time you are not required to take any action 
relative to the articles of organization. 



Division of Highways — Alteration of State Highway 
— Abandonment. 

Upon an abandonment of any part of a State highway, formerly an existing town 
way, title to the land so abandoned is in the former owners, free of any ease- 
ment in favor of a town for purposes of a way. 



To the Com- 
missioner of 
Public Works •• . 

1926 tion : 

December 6. 



You have asked my opinion upon the following ques- 



"Wli ether or not, in cases where new cut-off lines are laid out and 
built by the Division of Highways and the existing State highway for 
which the cut-off line is substituted is abandoned by the Division of 
Highways, such abandonment causes the title in the old State highway 
to revert to the abutting owners, or does it revert in part to the abutting 
owners and in part to the town, the portion reverting to the town being 
that portion which was a town way before the State highway was originally 
laid out? 

I assume that the question relates to an "alteration" of a 
State highway which has been laid out in part over an old 
town way, upon a petition made under the provisions of 
G. L., c. 81, § 4, or earlier statutes of similar import. 



JAY R. BENTON, ATTOENEY-GENERAL. 183 

It is provided by G. L., c. 81, § 5, as amended by St. 
1921, c. 427, that, after the Division of Highways has acted 
upon such petition and has duly laid out and taken charge 
of the way referred to therein, "thereafter said way shall be 
a state highway." 

I am of the opinion that the laying out and taking charge 
of an existing town way as a State highway, or the laying 
out and taking charge of a new way which follows to such 
an extent the hnes of an existing town way as practically to 
supersede it, although not following its lines exactly at all 
places, as a State highway, under G. L., c. 81, § 4, and § 5 
as amended, works a discontinuance of any easement which 
a town may have acquired by an earlier taking by eminent 
domain for such a town way; and that upon the abandon- 
ment by the Division of Highways while acting under 
section 6 of any part of the land formerly used as such a 
town way, title to such land is then in the former owners or 
their legal representatives, free of any easement in favor of 
the town for purposes of a way. 

It is an estabhshed principle of law that the public lose 
their right to a highway by discontinuance, where they have 
abandoned it and accepted another in its stead under pro- 
visions of law {Commonwealth v. Boston & Albany R.R. Co., 
150 Mass. 174; Bliss v. Deerfield, 13 Pick. 102; Hobart v. 
Plymouth, 100 Mass. 159, 163), and the acts done under 
sections 4 and 5 afford ample evidence of the abandonment 
of an old and the acceptance of a new way in place thereof 
on the part of the inhabitants of a town formerly having the 
old way. See also Tinker v. Russell, 14 Pick. 279. The 
intent of the Legislature that the petition for and the laying 
out of the State highway should, by force of the statute, 
work a complete discontinuance of the rights of municipal 
bodies in old ways superseded and physically converted into 
a new highway, appears to be expressed in G. L., c. 81, and 
in the earlier statutes upon the subject, particularly by 
the use of the words "and thereafter said way shall be a 
state highway." The Legislature has full control over public 



184 OPINIONS OF THE ATTORNEY-GENEEAL. 

ways, and they may be discontinued by direct enactment or 
through such instrumentahties as the Legislature may 
designate. Cones v. Benton County, 137 Ind. 404. 

The complete incorporation of identity of the older way 
in the new highway and the extinguishment of any existing 
rights therein when the new highway took the place of the 
existing way is also indicated to some degree by the fact 
that prior to St. 1921, c. 427, in which specific power to dis- 
continue a State highway was given, the Division was with- 
out authority to discontinue any part of a State highway 
once the same had been laid out under the provisions of 
G. L., c. 81, and earlier statutes of similar import. II Op. 
Atty. Gen. 378; III ibid. 113. In I Op. Atty. Gen. 284, 
it was said by one of my predecessors in office, in considering 
one of such earlier statutes : — 

I am of the opinion that these proceedings constitute a taking of the 
highway by the Commonwealth analogous to the taking of land for the 
purposes of a highway by county commissioners and by municipal boards; 
and that . . . the way, if an existing town or county way, ceases to be 
such and becomes a State highway. If it is a new way, then it is by such 
proceedings established as a State highway, in the same sense that a new 
way is established by the proceedings of local boards. It follows that the 
liability of the town to keep the road is determined by these acts; when 
the commission "takes charge" of the highway, the town is discharged. 

It is to be noted that although provisions for the alteration 
of a State highway are set forth in G. L., c. 81, § 6, and 
provisions for the abandonment of land or rights taken for 
such highway were contained in G. L., c. 81, § 12, and are 
now embodied in section 12, as amended by said St. 1921, 
c. 427, in which it is stated that after such an abandonment 
title to the land or rights given up shall revest "in the per- 
sons in whom it was vested at the time of the taking, or 
their heirs and assigns," it was held in an opinion of one of 
my predecessors in office (III Op. Atty. Gen. 113), with 
which I concur, that these provisions for revesting title 
relate only to that portion of an existing location which is 
not to be incorporated into the highway as finally con- 



JAY R. BENTON, ATTORNEY-GENERAL. 185 

structed for use, and hence have no appHcabihty to the 
facts which you set forth and upon the existence of which 
your question is predicated. 

If, however, the highway which was laid out by the 
Division was not "an existing way" within the meaning of 
G. L., c. 81, § 4, and does not follow to such an extent the 
lines of an old town way as practically to supersede it, 
then I am of the opinion that as to any land abandoned by 
the Division which was part of such old way the same is 
charged after such abandonment with an easement as 
against the abutting owners for the purposes of a way, if 
acquired by a previous taking of a town by eminent domain 
(Neiv England Tel & Tel. Co. v. Boston Terminal Co., 182 
Mass. 397; Perley v. Chandler, 6 Mass. 455); but if the 
town previously acquired the fee in the land occupied by 
such way by deed, then the abutting owners would not have 
rights other than easements therein. 



Civil Service — Laborer — Retention in Employment. 

The fact that a laborer in the employ of the Commonwealth was convicted of keep- 
ing and exposing intoxicating liquor for sale does not of itself warrant the 
Department of Civil Service and Registration in refusing to allow his reten- 
tion in the service of the Commonwealth, under G. L., c. 31, § 17. 

You state that a certain man has been properly employed |Ji°ssJj,nfr°^' 
under civil service as a laborer in the public works depart- '^'"''jg^^g^'^''^- 
ment of Boston for over ten years. On May 7, 1926, at the ^'''''^'^■ 
request of the public works department, his temporary 
employment as an inspector was authorized for three 
months, and was extended for three months on August 11, 
1926. He was employed as inspector only in cases of 
emergency, and has continued at all times on the payroll as 
a laborer, at laborer's wages. On February 17, 1926, he 
was convicted of keeping and exposing liquor for sale and 
was fined fifty dollars. On receipt of notice of this record 
of conviction on October 27, 1926, and acting under G. L., 
c. 31, § 17, you immediately revoked the authorization for 



186 OPINIONS OF THE ATTORNEY-GENERAL. 

his appointment as inspector and refused to allow his further 
employment either as laborer or inspector and withheld the 
payment of compensation to him. You further state that 
the case has been appealed to the full board of Civil Service 
Conmaissioners, which board has requested you to obtain 
my opinion on the following question: Does the provision 
in G. L., c. 31, § 17, apply to this case on the facts presented? 
G. L., c. 31, § 17, as amended by St. 1922, c. 36, provides 
as follows : — 

No person habitually using intoxicating liquors to excess shall be 
appointed, employed or retained in any position to which this chapter 
applies, nor shall any person be appointed or employed in any such posi- 
tion within one year after his conviction of any crime against the laws of 
the commonwealth; provided, that the commissioner may in his discre- 
tion authorize the appointment or employment, within said year, of a 
person convicted of a violation of any rule or regulation made under 
section thirty-one of chapter ninety or of any of the provisions of said 
chapter ninety relating to motor vehicles except those of sections twenty- 
three to twenty-five, inclusive. 

It is significant that the first part of said section, referring 
to persons habitually using intoxicating liquors to excess, 
provides that no such person shall be appointed, employed 
"or retained" in any position, while the provision referring 
to a person convicted of any crime against the laws of the 
Commonwealth provides that no such person shall "be 
appointed or employed," the word "retained" being omitted 
in this instance. An examination of the history of said 
section 17 discloses that this omission was intentional on the 
part of the Legislature. 

St. 1884, c. 320, is entitled "An Act to improve the civil 
service of the Commonwealth and the cities thereof." 
Section 3 of said chapter provides : — 

No person habitually using intoxicating beverages to excess, shall be 
appointed to, or retained in any office, appointment or employment to 
which the provisions of this act are applicable; nor shall any vendor of 
intoxicating liquor be so appointed or retained. 



JAY R. BENTON, ATTORNEY-GENERAL. ' 187 

Section 4 provides : — 

No person shall be appointed to or employed in any office to which 
the provisions of this act are applicable within one year after his convic- 
tion of any offence against the laws of this Commonwealth; and if any 
person holding such an appointment or in any such employment shall be 
convicted of the violation of any such law, he shall be immediately dis- 
charged from such appointment or employment. 

In the third annual report of the board of poHce for the 
city of Boston (December, 1887), at page 5, is the following 
recommendation : — 

The Board recommends that chapter 320, Acts of 1884, entitled "An 
Act to improve the Civil Service of the Commonwealth and the cities 
thereof," be amended by striking out all the words in section 4 after the 
semi-colon, to wit, "and if any person holding such an appointment or 
in any such employment shall be convicted of the violation of any such 
law, he shall be immediately discharged from such appointment or em- 
ployment." This provision is a constant menace to the police force and 
has a tendency to materially affect its efficiency. 

Presumably as a result of this recommendation, the Legis- 
lature in the following year enacted St. 1888, c. 334, amend- 
ing St. 1884, c. 320, § 4, by striking out the last clause thereof, 
so that, as amended, said section should read as follows : — 

No person shall be appointed to, or employed in, any office to which 
the provisions of this act are applicable, within one year after his con- 
viction of any offence against the laws of this commonwealth. 

In this form the law in this particular was carried into the 
Revised Laws (c. 19, § 17), section 16 referring to persons 
habitually using intoxicating liquors to excess and to vendors 
of intoxicating liquors. 

Gen. St. 1915, c. 76, entitled "An Act exempting vendors 
of intoxicating liquors from certain disqualifying provisions 
of the civil service laws," amended R. L., c. 19, § 16, by 
striking out said section and inserting in place thereof the 
following : — 

No person habitually using intoxicating liquors to excess shall be 
appointed to or retained in any office, appointment or employment to 
which the provisions of this chapter apply. 



188 OPINIONS OF THE ATTORNEY-GENERAL. 

In the General Laws, R. L., c. 19, §§ 16 and 17, as 
amended, are combined in one section, to wit, G. L., c. 31, 
§17. 

The history of this legislation and also the phraseology 
of section 17 clearly indicate that the provision therein, 
"nor shall any person be appointed or employed in any such 
position within one year after his conviction of any crime 
against the laws of the commonwealth," applies solely to 
applicants for appointment or employment and not to 
appointees or employees, while no person habitually using 
intoxicating liquors to excess shall be appointed, employed 
"or retained" in any position to which said chapter applies. 

There are many crimes against the laws of the Common- 
wealth, both felonies and misdemeanors. Some of the 
latter are mala prohibita and do not involve any degree of 
moral turpitude or even criminal intent. It is obvious that 
the Legislature never intended that one holding a civil 
service position should lose such position and not again be 
appointed or employed under civil service within one year 
after his conviction of each and every crime against the 
laws of the Commonwealth. 

In the case to which you have directed my attention you 
state that the person referred to was convicted of the crime 
of keeping and exposing liquor for sale. I am accordingly 
of the opinion that in the absence of any allegation that 
said person habitually used intoxicating liquors to excess, 
G. L., c. 31, § 17, does not apply to the case under con- 
sideration, and that, on the facts presented, the Department 
of Civil Service and Registration is not authorized to refuse 
to allow his further employment as laborer or to withhold 
the payment of compensation to him. 



jay r. benton, attorney-general. 189 

Division of Highways — Removal of Buildings from 
Land taken — Procedure. 

Three modes of procedure are available to the Division of Highways to effect the 
removal of buildings from land taken for the widening of a State highway. 



You have asked my advice relative to the following 



To the Com- 
missioner of 
Public Works. 



matter set forth in your letter to me : — "" 1926 

December 11. 

Early this year the Division of Highways widened the State highway 
in Weymouth and made takings for the widening under the provisions of 
G. L., c. 79. There are two buildings the owners of which have not con- 
formed with the orders of the Division to remove the same, and it is desired 
to know just what procedure to take in order to get the buildings removed. 
(See G. L., c. 79, § 13.) 

The following modes of procedure to effect the removal of 
the buildings, which I assume stand upon land taken for 
the purposes described in the paragraph quoted above from 
your letter, but which were not themselves taken, are open 
to the Division of Highways: 

(1) If a time for the removal of such buildings was speci- 
fied in the order of taking, and has now elapsed, the Divi- 
sion may proceed under G. L., c. 79, § 13, to sell the buildings 
at public auction. If at the sale no one bids for them, under 
the terms of section 13 the owner will be taken to have re- 
Unquished his right in them, and the Division may remove 
them or deal with them in such manner as is deemed best 
to reUeve the highway from obstruction occasioned by them. 
The Division will have such impUed authority by virtue 
of the provisions of section 13 as will enable it to go upon 
the adjoining land of the owner for the purpose of making 
such removal. If the buildings are purchased at such sale 
and the new owner fails to remove them after reasonable 
notice in writing from the Division, he will be held to have 
relinquished his right therein, under the concluding sen- 
tence of section 13, and they may be removed. By virtue 
of the taking and of the sale under the authority of the 
statute, the buildings are to be considered as so severed 
from the realty as to have become personal property, 



190 OPINIONS OF THE ATTORNEY-GENERAL. 

within the meaning of the last sentence of the section, and 
therefore by failure to remove in accordance with the pro- 
visions of such sentence the right of the owner acquired by 
the sale will be taken as relinquished to the body who 
acquired the land by eminent domain. If notice to remove 
was not embodied in the original order of taking, this pro- 
cedure will not be open to you. 

(2) A further method of proceeding is available to the 
Division, irrespective of the mode provided for in G. L., 
c. 79, § 13. Under the provisions of G, L., c. 81, § 22, the 
Division of Highways may give the owner or occupant of 
the buildings written notice to remove them forthwith from 
the highway. If he fails to comply with the order, the 
Division may remove the buildings to the adjoining land 
of the owner or occupant. For the purpose of removing 
the buildings to such adjoining land, the Division has im- 
plied authority, under the terms of section 22, to enter upon 
the adjoining land for all purposes necessary to effect such 
removal. The Division has no authority under this section 
to cut a building in parts, if only a portion protrudes into 
the highway, and remove one part of the building alone. 

(3) If procedure under G. L., c. 79, § 13, cannot be 
adopted, and if it is in fact impossible by reason of lack of 
sufficient space in the adjoining land to remove the buildings 
to such land (or further back upon such land if the neces- 
sities of the case require only the latter form of removal), 
then recourse is to be had to the courts to compel the owner 
or occupant of the building to abate a pubUc nuisance caused 
by the obstruction of the highway by so much of the build- 
ing as projects therein, and the owner may be required by a 
court to make such abatement, either by cutting off the 
portion of the building which so projects or by some other 
feasible mode, at his own expense. 



jay r. benton, attorney-general. 191 

Massachusetts Agricultural College — Expenditure 
OF Funds from Federal Government — Commission 
ON Administration and Finance. 

Employees of the Massachusetts Agricultural College are State employees 
even if their salaries are paid out of funds provided by the Federal government; 
and money received from the sale of products raised at the college is the prop- 
erty of the Commonwealth even if such products are produced by the aid of 
funds provided by the Federal government. 

The Commission on Administration and Finance has authority to approve publica- 
tions of the Experiment Station of said college, paid for out of money provided 
by the Federal government, but has no authority to approve or disapprove of 
expenditures for travel paid for out of money so provided. 

You have asked my opinion upon certain questions relating mtl-'on?!"^' 
to the administration of funds received by the Massachusetts ^'^"^fg^ie"' 
Agricultural College from the Federal government for the °*'''!^'' ^^• 
use of the Agricultural Experiment Station from appro- 
priations made under the Acts of March 2, 1887, March 16, 
1906, and February 24, 1925; 24 U. S. Stat, at L. 440; 
34: ibid. 63; 43 ibid. 970. 

The first of these acts, known as the Hatch Act, provided 
for the establishment of agricultural experiment stations 
under the direction of the land grant colleges created in 
accordance with the Act of July 2, 1862 (12 U. S. Stat, at 
L. 503). It was declared to be the object and duty of those 
experiment stations to conduct researches and experiments 
relative to plants, animals, soils, etc., and bearing on the 
agricultural industry of the United States; and annually 
to make to the governor of the State a full and detailed 
report of its operations, including a statement of receipts 
and expenditures, copies of which were to be sent to the 
Secretary of Agriculture and the Secretary of the Treasury. 
For the purpose of paying the expenses of conducting such 
researches and experiments and publishing the results an 
annual sum of money was appropriated to each State, to be 
paid "to the treasurer or other officer duly appointed by the 
governing boards of said colleges to receive the same." It 
was further provided that nothing in the act should be con- 
strued to impair or modify the legal relation existing between 



192 OPINIONS OF THE ATTORNEY-GENERAL. 

the colleges and the State governments; and the grants of 
money authorized were made subject to the legislative 
assent of the several States. The two later acts, known re- 
spectively as the Adams Act and the Purnell Act, made 
additional appropriations "for the more complete endowment 
and maintenance" of said agricultural and experiment 
stations. It was further provided in those two acts that the 
officers receiving the funds should make detailed statements 
to the Secretary of Agriculture of the amount so received 
and of its disbursement. These acts and the grants of 
money therein provided were each severally accepted by 
the Legislature of Massachusetts. St. 1887, c. 212; St. 
1906, c. 330; St. 1925, c. 253. In the act of 1906 it was 
further provided that "the Massachusetts Agricultural 
College is hereby authorized and designated to receive said 
grant of moneys," and in the act of 1925 it was provided 
that "the trustees of the Massachusetts Agricultural College, 
in charge of the Massachusetts agricultural experiment 
station, are hereby authorized to receive the funds granted 
by said act and to use and expend the same in furtherance 
of the purposes and objects therein set forth." 

The Massachusetts Agricultural College was incorporated, 
pursuant to the Federal act of 1862, by act of the Massa- 
chusetts Legislature (St. 1863, c. 220) as a pubhc charitable 
corporation. See III Op. Atty. Gen. 308. By Gen. St. 
1918, c. 262, the corporation was dissolved, and it was pro- 
vided that thereafter the college should be maintained as a 
State institution under the same name, and that all em- 
ployees of the institution should be considered State em- 
ployees. Gen. St. 1919, c. 350, § 56, provided that the 
trustees of the college should serve in the Department of 
Education. See G. L., c. 75, § 1; c. 15, § 19. 

The grant made by the act of 1862 was to the several 
States for the purposes therein mentioned. It has been 
conclusively determined that this grant was to the States 
and not to the institutions established by the State pur- 
suant to the statute. Wyoming Agricultural College v. 



JAY R, BENTON, ATTORNEY-GENERAL. 193 

Irvine, 206 U. S. 278, 283; Massachusetts Agricultural 
College v. Harden, 156 Mass. 150, 156; VI Op. Atty. Gen. 
105. But the provisions in the acts estabHshing and endow- 
ing agricultural experiment stations are different, in that, 
while the appropriation is to the State, payment is required 
to be made directly to the officers of the institution. With 
reference to the Hatch Act the coiu-t said in Wyoming 
Agricultural College v. Irvine, supra: — 

By the Act of March 2, 1S87 (24 Stat. 440), Congress directed that 
a certain sum should be annually appropriated "to each State" for the 
support of agricultural experiment stations at the institutions established 
under the Act of 1862. The law provides that the appropriation shall be 
paid to the treasurer of the institution where the experiment station is 
established, and no money has come or will come into the hands of the 
state treasurer. It is, therefore, unnecessary to consider further the 
provisions of this act. 

Gen. St. 1918, c. 262, § 3, provided that the trustees of 
the Massachusetts Agricultural College "shall manage and 
administer any grant or devise of land, and any gift or 
bequest of money or other personal property, made to the 
Commonwealth for the use of said institution, and shall 
carry out said trusts." See G. L., c. 75, § 7. With respect 
to these Federal funds the same authority is given to the 
trustees and duty imposed on them by the acts of the Legis- 
lature accepting the Federal grants, and, as I have shown, 
the 1925 statute expressly directs the trustees "to use and 
expend the same in furtherance of the purposes and objects 
therein set forth." In my opinion, accordingly, these funds 
are received by authority of the Legislature under a trust 
or charge that they shall be administered and expended 
in accordance with the provisions of the Federal statutes. 

It may be questioned whether, since the adoption of 
Mass. Const. Amend. LXIII, section 1 of that amendment 
does not require the trustees or the treasurer of the Massa- 
chusetts Agricultural College receiving these Federal funds 
to pay them into the State treasury. Section 1 is as follows : 



194 OPINIONS OF THE ATTORNEY-GENERAL. 

Collection of Revenue. — All money received on account of the common- 
wealth from any source whatsoever shall be paid into the treasury thereof. 

In my opinion, this provision is applicable only to the 
revenues of the State, which, under the amendment, must 
be paid into the treasury and can be paid out under the 
Constitution (pt. 2nd, c. II, § I, art. XI) only by legislative 
act, and does not apply to trust funds which are required to 
be expended in a particular manner. This department 
has previously held that while a gift to a branch of the State 
government must be paid into the treasury, gifts upon 
conditions which constitute a trust may be accepted by 
State officers or departments if authorized by statute so to 
do. VI Op. Atty. Gen. 636; 643. 

The questions which you have asked I am at liberty to 
answer only in so far as they concern the performance of 
the duties of your department. As a former Attorney 
General has stated (II Op. Atty. Gen. 100): — 

Officers of the State government are entitled to the opinion of the At- 
torney-General upon questions necessary or incidental to the discharge of 
the duties of their office. 

1. Are employees of the College who receive full pay from 
one or more of these funds (Purnell, Adams or Hatch) State 
employees? 

By section 13 of G. L., c. 75, the trustees are required to 
elect officers of the College, fix their salaries and define the 
duties and tenure of office, and by section 18 they are 
required to appoint a director of the Massachusetts Agri- 
cultural Experiment Station, a chemist and necessary 
assistants. Section 16 provides that the Experiment Sta- 
tion shall be a part of the College. It was provided in 
Gen. St. 1918, c. 262, § 5, that "all employees of the insti- 
tution shall be considered state employees," but this pro- 
vision was omitted in the General Laws (G. L., c. 75, § 24), 
apparently for the reason that the commissioners regarded it 
as unnecessary. 

An employee is a servant, agent or representative, and 



JAY R. BENTON, ATTORNEY-GENERAL. 195 

the payment of compensation as such is not a necessary 
element of employment. Commonwealth v. Griffith, 204 
Mass. 18, 21 ; Commonwealth v. Riley, 210 Mass. 387, 395, 
396. The employees you speak of are, in my opinion, 
clearly State employees. See VI Op. At1}y. Gen. 105. 

2. Are such employees ehgible to and required to take 
membership in the State Retirement Association? 

The salaries received by the employees you refer to are 
not paid by the Commonwealth, since they are paid out of 
the Federal funds and not by appropriation from the State. 
See VI Op. Atty. Gen. 105. Whether or not such em- 
ployees are or should be members in the State Retirement 
Association, it seems to me, is not a question necessary or 
incidental to the discharge of the duties of the officers in 
your department, and therefore not one on which I should 
express an opinion. 

3. Is publication under the terms of these bills subject to 
the approval of the Commission on Administration and 
Finance? 

The duties and powers conferred by G. L., c. 7, § 9, upon 
the Supervisor of Administration have been transferred to 
the Commission on Administration and Finance. St. 
1922, c. 545, § 1; St. 1923, c. 362, § 92. G. L., c. 7, § 9, 
required the approval of the Supervisor of Administration 
of any publication issued by or on behalf of the Common- 
wealth, except pubhcations "issued by the officers of either 
branch of the General Court, or issued under special author- 
ity given by the General Court," with certain other excep- 
tions not here material. In my opinion, the publications 
of the Experiment Station, although founded upon and paid 
for out of the various Federal appropriations, are issued 
"by or on behalf of the commonwealth" and are none the 
less subject to the approval of the Commission on Adminis- 
tration and Finance by reason of their being issued under 
the terms of the Federal statutes. 

4. Is out-of-state travel on any of these funds subject to 
the approval of the Commission? 



196 OPINIONS OF THE ATTORNEY-GENERAL. 

The Commission on Administration and Finance has no 
statutory authority to deal with the question of out-of-state 
travel. By G. L., c. 6, § 10, it is provided that "no officer 
or employee of the commonwealth shall travel outside the 
commonwealth at public expense unless he has previously 
been authorized by the governor to leave the common- 
wealth. ..." The statutory limitation relates only to 
travel at "public expense." In my opinion, travel the 
expense of which is paid out of these Federal funds is not 
travel at public expense requiring the authorization of the 
Governor. 

5. Do receipts from the sale of products which may be 
produced on these funds revert to the State . 

There is nothing in the acts themselves which reserves to 
the Federal government any right to the products resulting 
from the performance of the duties imposed by the acts. 
The purposes of the acts are completely accomplished when 
the funds are expended as therein provided and the other 
duties imposed are performed. There is therefore no trust 
property which can be traced in to the products. In my 
opinion, all such products are the property of the Common- 
wealth, and any funds therefrom are the property of the 
Commonwealth. I should assume, however, that such 
proceeds should be accounted for in the "full and detailed 
report" made to the Governor, a copy of which is sent to the 
Commissioner of Agriculture and to the Secretary of the 
Treasury, which report is to include a statement of receipts 
and expenditures, and is, under the Hatch Act, to be made 
the basis of the determination of the Secretary of the Treas- 
ury whether any portion of the preceding annual appro- 
priation remains unexpended. 



December 14. 



jay r. benton, attorney-general. 197 

State Reclamation Board — Reclamation District — 
Assessment Roll — Correction of Error. 

There is no authority in the State Reclamation Board or in reclamation district 
commissioners to change or modify the determination of such commissioners 
as to an item in an assessment roll, made under G. L., c. 252, as amended, 
if no objection thereto is filed within fifteen days. 

You request my opinion with regard to the power of the mUton?"T{' 
State Reclamation Board or the district commissioners to ^^"me'^' 
correct an error in the following matter. It appears that 
in the Green Harbor Reclamation District, on an "assess- 
ment roll as printed and sent to the individual proprietors 
Mrs. Cadigan is charged with owning lots 13 and 14 of the 
Beach Meadow subdivision, but in acreage owned and 
charged for she was charged for three lots instead of two. 
Reference to the papers from which this official roll was 
made out shows Mrs. Cadigan also owning lot 85 of the 
same subdivision. The assessment roll that went out was 
therefore incorrect as to the numbers of the lots with which 
she was charged, but correct as to the acreage and cor- 
responding money charged. That is as far as information 
was available at the time the roll was made up. This 
information came from the registry of deeds and the town 
assessors' lists." 

G. L., c. 252, as amended by St. 1922, c. 349, St. 1923, 
c. 457, § 7, St. 1924, c. 93, § 3, and St. 1926, c. 393, § 5, 
provides as follows : — • 

As soon as the district shall have been organized under the provisions 
of the preceding section the commissioners shall, under the direction of the 
board, cause the necessary surveys and investigations to be made and shall 
prepare a plan showing in detail the boundaries of the district and the 
improvements to be effected. On the basis of such surveys and investi- 
gations the commissioners shall prepare an estimate of the total expense 
of the proposed improvements and shall determine the percentage of such 
expense to be paid by each proprietor, based on the estimated special 
benefit to his land in excess of the damage thereto by the use thereof for 
the proposed improvements. If such damage to the land of any proprietor 
exceeds the special benefit thereto they shall award him damages for such 
excess. They shall report their plan, estimate and determination to the 



198 OPINIONS OF THE ATTORNEY-GENERAL. 

board, which shall approve, disapprove or modify such plan and estimate. 
The commissioners shall also notify each proprietor of such determination 
by delivering a copy thereof at his residence or by sending the same by 
registered mail to his last known address and shall certify to the board the 
date on which such notice is given. If any proprietor is aggrieved by the 
determination of the commissioners he may, within fifteen days after 
notice thereof, file with the board his objections thereto and if no such 
objections are filed by any proprietor within the fifteen days above speci- 
fied then the determination of the commissioners shall be final. 

The information upon which "the determination" of 
the district commissioners was based was procured from 
pubhc records. The acreage credited to the proprietors was 
obtained from said records, and the percentage to be paid 
by said proprietor was properly based thereon. The assess- 
ment roll received by the proprietor made reference to a 
plan and a sub-plan of all the lots in the district. These 
plans were accessible to her, and therefore further informa- 
tion with regard to ownership of the lots was available had 
she desired to obtain the same. It further appears that 
''the assessment roll that went out was . . . correct as to 
the acreage and corresponding money charged." It there-' 
fore seems that the proprietor was sufficiently informed as 
to the determination of the district commissioners, even 
though the number of a particular lot was omitted from the 
assessment roll. The proprietor not having filed with the 
State Reclamation Board her objections to the determina- 
tion "within fifteen days after notice thereof," the determi- 
nation must be considered final. The limitation placed 
upon the time for filing objections is reasonable and neces- 
sary to prevent delay in carrying out the proposed improve- 
ments in the district. 

I find no authority vested in the district commissioners 
or in the State Reclamation Board to change or modify 
the determination of the commissioners if no objection is 
filed thereto within the prescribed period of fifteen days. 
I am therefore of the opinion that the assessment as deter- 
mined must continue upon your records. 



jay e. benton, attorney-general. 199 

Commission on Probation — Adoption — Illegitimate 

Child. 

The consent of the mother of an illegitimate infant is a prerequisite to its adoption, 
even though such mother has been committed to the Reformatory for Women, 
and the Commission on Probation has no authority to effect an adoption with- 
out such consent. 



You request my opinion on the following case: There is 



To the Com- 
mission on 
Probation. 



December 20. 



before the Superior Court for trial the appeal of a man J° tgfs 
charged with bastardy, the appeal being taken from the 
adjudication of the Municipal Court of the City of Boston 
in September, 1926. The complainant in the case was 
committed to the Reformatory for Women at Sherborn 
from the Municipal Court on August 5, 1926, on a charge of 
larceny. The child in question was born July 7, 1926, and 
the presiding justice of the Municipal Court ordered the 
child to be committed to the Reformatory with her mother. 
A lump sum in settlement of the bastardy case has been 
suggested, and arrangements have apparently been made 
for the permanent care and ultimate adoption of said child. 
You state that this is for the best interests of the child, 
as the mother has no hking whatsoever for it and it is her 
intention when released from the Reformatory to give the 
child up to any one who will take it. You further state that 
in view of this arrangement preparations were made to 
carry out said plan, when you learned of the child's com- 
mitment to the Reformatory for Women with the mother. 
You request my opinion as to what right your department 
or the mother of said child has to sign away the mother's 
right in the child at the present time. 

The mother, having been found guilty of the crime of 
larceny under G. L., c. 266, § 30, was committed to the 
Massachusetts Reformatory for Women, the mittimus 
reading, in part, as follows : — 

For which offence the said defendant is sentenced by said Court to 
be committed to the said Reformatory for Women, — there to be kept 
imprisoned, employed and detained according to the rules of the same. 

And to take, convey and to deUver to said Superintendent an infant 



200 OPINIONS OF THE ATTORNEY-GENERAL. 

child under the age of eighteen months and you said Superintendent in the 
name of this Commonwealth aforesaid are hereby commanded to receive 
the said defendant into your custody in said Reformatory for Women. 

And you said Superintendent are hereby further commanded to receive 
said child (and place it in the care and custody of said ... its mother) . 

In committing the child to the Reformatory with the 
mother the court acted under the authority conferred by 
G. L., c. 127, § 95, which provides as follows: — 

If the mother of a child under eighteen months is imprisoned in a 
jail, house of correction, workhouse or other place of confinement and is 
capable and desirous of taking care of it, the keeper shall, upon the order 
of the court or magistrate committing her, or of any overseer of the poor, 
receive the child and place it under the care and custody of its mother. 

The mother and child are being held at said Reformatory 
in accordance with this mittimus. 

Under such circumstances the method provided by 
statute for removal of a child from the institution is con- 
tained in G. L., c. 127, § 96, which provides as follows: — 

If the officers having charge of such institution are of opinion that the 
health and comfort of such child require its removal, or that it is expedient 
that it should be removed, they shall give notice to the father or other 
kindred thereof, or, if no kindred can be fou.nd to receive it, to the over- 
seers of the poor of the town where it has a legal settlement, who shall 
receive it. If it has no settlement in the commonwealth, it shall be sent 
to the state infirmary, as is provided in the case of alien paupers. 

Your specific question, however, concerns the right of the 
Commission on Probation or the mother to sign away the 
mother's right in the child at the present time. 

G. L., c. 119, § 16, provides as follows: — 

The mother of an illegitimate infant under two years of age who is a 
resident of this commonwealth may, in writing signed by her and with 
the consent of the department, give up such infant to it for adoption; 
and if it deems such action for the public interest, the department may, 
in its discretion and on such conditions as it imposes, receive such infant 
and provide therefor. Such surrender by the mother shall operate as a 
consent by her to any adoption subsequently approved by the department. 



JAY R. BENTON, ATTORNEY-GENERAL. 201 

The department mentioned in said section is the Depart- 
ment of PubUc Welfare. 

G. L., c. 210, § 3, provides, in part, as follows: — 

A giving up in \vriting of a child, for the purpose of adoption, to an 
incorporated charitable institution shall operate as a consent to any 
adoption subsequently approved by such institution. 

G. L., c. 210, § 1, provides that a person of full age may 
petition the Probate Court in the county where he resides 
for leave to adopt as his child another person younger than 
himself. Section 2 provides that a decree for such adoption 
shall not be made, except as hereinafter provided, without 
the written consent "of the mother only of the child, if 
illegitimate." Section 3 provides that the consent of the 
persons named in the preceding section (§ 2) shall not be 
required if such person "is imprisoned in the state prison 
or in a house of correction in this commonwealth under 
sentence for a term of which more than three years remain 
unexpired at the date of the petition." 

It appears that the mother in the instant case was found 
guilty of a charge of larceny of chattels of the value of 
approximately fifteen dollars. Under G. L., c. 266, § 30, 
"if the value of the property stolen does not exceed one 
hundred dollars" the punishment is "by imprisonment in 
jail for not more than one year or by a fine of not more than 
three hundred dollars." 

The sentence to the Reformatory for Women was in 
accord with G. L., c. 279, § 16, which provides: — 

A female, convicted of a crime punishable by imprisonment in a jail 
or house of correction, may be sentenced to the reformatory for women. 

The duration of her imprisonment is governed by G. L., 
c. 279, § 18, which provides as follows: — 

A female sentenced to the reformatory 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; if sentenced to said reformatory for any other offence, she 
may be held therein for not more than two years. 



202 OPINIONS OF THE ATTORNEY-GENERAL. 

As the mother in the case before me was not imprisoned 
"in the state prison or in a house of correction," the excep- 
tion to the requirement of the consent of the mother of an 
illegitimate child to its adoption under G. L., c. 210, § 3, 
does not apply. 

I find no authority vested in the Commission on Proba- 
tion to sign away this mother's rights in her child. In 
my opinion, under the existing circumstances, a giving up 
or adoption of said child can only be made with the mother's 
consent first obtained. 



December 21. 



Motor Vehicles — Registration — Private 
Charitable Hospital. 

A private charitable hospital may not register a motor veliicle unless such hospital 
complies with the provisions of the statutes relative to compulsory automobile 
liability insurance. 

m°ssiOT?r°.^" Yon have asked me for my opinion upon the following 

^"^Yg^"'"''''- matter: ''As to whether or not a hospital which is not 
liable in tort for the negligence of its servants will be com- 
pelled to present to the Registrar of Motor Vehicles a 
certificate from an insurance company before he can register 
its motor vehicle." 

I assume that the hospital which you describe is elee- 
mosynary in character and is not an institution conducted 
by the Commonwealth or one of its subdivisions. 

I am of the opinion that a motor vehicle owned by such 
a hospital may not be registered unless the application for 
registration is accompanied by a certificate as defined in 
G. L., c. 90, § 34A (as amended by St. 1926, c. 368, § 2). 
Such a hospital is not mentioned in the statute as one of the 
exceptions to the general provisions relative to owners of 
motor vehicles and the requirement that they shall produce 
a certificate as a prerequisite to registration of such vehicles 
and trailers. G. L., c. 90, § lA (as amended by St. 1926, 
c. 368, § 1). No intent to include such a hospital within 



JAY R. BENTON, ATTORNEY-GENERAL. 203 

the exceptions to the general provisions can be inferred 
from the character or scope of the statutes relative to 
registration. The coverage of the policy, bond or deposit 
required by statute with relation to a registered motor 
vehicle extends not only to the liability of the owner and 
his or its employees but to that of any person responsible 
for its operation, maintenance, control or use with the 
express or implied consent of the owner. It cannot be 
said to be beyond the power of the Legislature to require 
such a hospital to provide security for liability on the part 
of such others as are designated by the statute when operat- 
ing, maintaining, controlling or using its motor vehicle with 
its express or implied consent, even though its own liability 
for negligence be limited by familiar principles of law. 



Insurance — Mutual Ll\bility Company — By-Laws — 
Issuance of Policies. 

If existing by-laws of a mutual liability insurance company provide that amend- 
ments to the same are to be made at stated annual meetings, such amendments 
may not be made at a special meeting. 

The filing of agreements to take policies in a mutual liability insurance company 
upon condition that they should be executed on or before a day certain is in- 
sufficient compliance with G. L., c. 175, § 73, as amended, if the certificate of 
the Commissioner permitting the issuance of policies was granted not more 
than thirty days previous to such filing. 

1. You have submitted to me the following statement of 

facts: — 

The by-laws of one of the mutual HabiUty insurance companies re- ^i'ssirafr"^' 
cently incorporated but which has not been authorized to issue policies ^'^^^jqgfi^- 
provide that "Amendments to these by-laws may be made at any annual December 23. 
meeting by vote of a majority of those present, ten days' notice of such 
amendment having been given." The by-laws provide that "An annual 
meeting of the members of the company shall be held at two p.m. on the 
second Tuesday of January of each year. 

At a special meeting of the Company, all of the incorporators being 
present, it was voted unanimously to amend one of the articles of the by- 
laws. This amendment increases the contingent liability of the members 



204 OPINIONS OF THE ATTORNEY-GENERAL. 

from an amount equal to and in addition to the cash premium written in 
the poUcy to double said amount. 

You have asked my opinion upon a question of law relative 
thereto as follows : — 

I request your opinion on the question whether the company has au- 
thority to amend its by-laws by a unanimous vote of the incorporators at a 
meeting at which all are present, but not an annual meeting. 

I answer your question to the effect that the company 
described by you, under the statement of facts which you 
set forth in your communication, was without authority to 
amend its by-laws in the manner which you have detailed. 

The general inherent power which a corporation possesses 
to amend its by-laws is subject to such limitations as have 
been placed upon the exercise of the power in the by-laws 
already adopted. An amendment cannot be effected except 
by substantial compliance with the rules governing the 
making of amendments in the by-laws as they exist. Where, 
as in the instant case, existing by-laws provide for amend- 
ments to be made at annual meetings, with ten days' notice, 
such meetings to be held on the second Tuesday of January, 
the adoption of an amendment to the by-laws at a special 
meeting of the incorporators prior to the annual meeting 
is not a substantial compliance with the existing by-laws. 
See Torrey v. Baker, 1 Allen, 120. It is obvious that the 
adoption of an amendment such as you have set forth, 
increasing the contingent liability of members of a mutual 
liability insurance company in a manner and at a time not 
provided for in the existing by-laws might be prejudicial 
to the interests of persons not then members of the com- 
pany; as, for example, persons who had subscribed for 
policies on the basis of the contingent liability as established 
in the by-laws as originally drawn, and in reliance upon the 
provisions of the by-laws that there should be no amend- 
ment thereof prior to the annual meeting on the second 
Tuesday of January, which date might be subsequent to 



JAY R. BENTON, ATTORNEY-GENERAL. 205 

the time when they would have taken their policies under 
the terms of their subscriptions. 

2. You have also submitted to me the following statement 
of facts relative to a mutual liability insurance corporation : — 

The company submitted to the department applications for insurance 
in which an agreement was made to take the insurance appHed for on or 
before a specified date. In a large percentage of these applications the 
agreement was made to take the insurance on or before December 31, 
1926. 

You have asked my opinion relative thereto as follows : — 

I request your further opinion on the question whether, assuming all 
other requirements of the statute were complied with, and the license 
issued on some date not more than thirty days previous to said December 
31st, the filing of said agreements would be a compliance with the require- 
ments of the statute. 

The insurance company, in relation to its right to begin 
issuing policies, is governed by G. L., c. 175, § 73, as amended 
by St. 1926, c. 53, which provides that no policy may be 
issued — 

until a list of the subscribers for insurance, with such other information 
as he may require, shall have been filed with the commissioner, nor until 
the president and secretary of the company shall have certified on oath 
that every subscription for insurance in the list so filed is genuine and 
made with an agreement with every subscriber for insurance that he will 
take the policies subscribed for by him within thirty days of the granting 
by the commissioner of a certificate to issue policies as provided by section 
thirty-two. 

I am of the opinion that, although subscriptions for insur- 
ance in the instant case were, as you state, made upon con- 
dition that they should be executed before a day certain 
rather than within a period described by the language of the 
statute, yet, if in fact the required certificate was granted 
prior to such date certain, and not more than thirty days 
previous thereto, then the agreements of the subscriptions 
as written would be in substantial compliance with the 
terms of the statute, and their fiUng and verification in the 
manner provided for in section 73 would fulfill the require- 



206 OPINIONS OF THE ATTORNEY-GENERAL. 

ments thereof. Much the same principle of law as governs 
conditional subscriptions for stock, which are held to be 
binding upon the fulfillment of the conditions before the 
time set for the execution of such subscriptions {Central 
Turnpike Corp. v. Valentine, 10 Pick. 142), is applicable 
to the state of facts set forth by you. 



December 23. 



Board of Parole — Terms and Conditions of Parole — 
Time for granting Parole. 

Prisoners eligible for permits to be at liberty may not be held beyond the term of 
their minimum sentence unless they refuse to assent to lawful and reasonable 
terms and conditions for parole, seasonably presented to them in wTiting. 

To the Com- You reouest my opinion upon the following questions : — 

nussioner of ^\ j r- sr o i 

^°"i926" 1- When and under what circumstances may prisoners 

who have not been punished be held beyond the term of their 
minimum sentence? 

2. May the Board of Parole impose terms and conditions 
upon an inmate? 

3. May the Board of Parole withhold the issuance of the 
permit if at the time set for release those terms and condi- 
tions precedent have not been complied with? 

4. Must such terms and conditions be in writing, or what 
other formalities should be gone through with? 

I answer your questions in the order submitted. 
■ First. — G. L., c. 127, § 133, provides: — 

If the record of a prisoner sentenced to the state prison for a crime 
committed on or after the first day of January in the year eighteen hun- 
dred and ninety-six shows that he has faithfully observed all the rules of 
the prison and has not been subjected to punishment, the board of parole 
shall, upon the expiration of his minimum term of sentence, grant him a 
permit to be at liberty therefrom during the unexpired portion of the 
maximum term of his sentence, upon such terms and conditions as it shall 
prescribe. If the record shows that he has violated the rules of the prison, 
he may be given a like permit at such time after the expiration of the 
minknum term of his sentence as the board shall determine. If the pris- 
oner is held in the prison upon two or more sentences, he shall be entitled 



JAY R. BENTON, ATTORNEY-GENERAL. 207 

to receive such permit when he has served a term equal to the aggregate 
of the minimum terms of the several sentences, and he shall be subject 
to all the provisions of this section until the expiration of a term equal to 
the aggregate of the maximum terms of said sentences. 

This statute expressly states that the Board of Parole 
"shall" grant such prisoner a permit to be at liberty during 
the unexpired portion of the maximum term of his sentence, 
"upon such terms and conditions as it shall prescribe." 

In an opinion of one of my predecessors to the Board of 
Parole, dated July 17, 1918 (V Op. Atty. Gen. 235), this 
section of the statute (then R. L., c. 225, § 115) was con- 
strued as follows : — 

In my opinion, the section in question imposes upon your Board two 
duties. It first must determine whether the record of a prisoner who 
comes within its terms "shows that he has faithfully observed all the rules 
of the prison and has not been subjected to punishment." If this deter- 
mination is made in favor of the prisoner, it becomes the duty of the 
Board to "issue to him a permit to be at liberty therefrom during the un- 
expired portion of the maximum term of his sentence, upon such terms 
and conditions as they shall prescribe." This plainly imposes a second 
duty upon your Board of determining what shall be the terms and condi- 
tions under which the permit to be at liberty is to be issued. It seems to 
be within the discretion of your Board to impose any reasonable terms 
and conditions upon such a permit which are not inconsistent with any 
other provisions of this section or of the statutes in general. In my judg- 
ment, therefore, under the terms of this section the warden of the State 
Prison is not authorized to release any prisoner except upon a permit 
to be at liberty duly granted by your Board, after an investigation of the 
matter by you. If the terms and conditions imposed by your Board in 
connection with the issuance of such a permit require the assent or accept- 
ance of the prisoner, the permit cannot be issued or the prisoner released 
until he has indicated his assent or acceptance. 

In my opinion, if the Board of Parole ascertains that a 
prisoner who comes within the terms of the statute has 
faithfully observed all the rules of the prison and has not 
been subjected to punishment, it is the duty of the Board 
of Parole formally to prepare forthwith express terms and 
conditions upon which a permit to be at liberty shall be 



208 OPINIONS OF THE ATTORNEY-GENERAL. 

issued. Such terms and conditions must, of course, be 
reasonable and must not violate any provision of law. 
They will of necessity vary somewhat in accordance with 
the facts of each particular case and the objects to be 
accomplished. But the Board must formulate authori- 
tative, definite and express "terms and conditions," which 
should be presented to the prisoner at the time when under 
the statute he becomes eligible for a permit to be at liberty. 
It seems obvious that when that time comes, in view of the 
mandatory language of the statute, a prisoner cannot 
properly be held in confinement thereafter simply because 
the Board of Parole has not formulated "terms and con- 
ditions" governing his permit to be at hberty. Such a 
construction would, in my opinion, defeat the main purpose 
of the statute. It is obviously not merely the right but 
the duty of the Board of Parole to prepare the terms and 
conditions so that they will be available at that time. 

One of the terms and conditions imposed by the Board of 
Parole may properly be that the assent to or acceptance 
of such terms and conditions by the prisoner is required as 
a condition precedent to the granting of the permit to be 
at hberty. If in such case the prisoner refuses so to assent 
the Board may properly refuse to issue to him a permit to 
be at hberty until he has indicated his assent or acceptance. 

I accordingly answer your first question that prisoners 
ehgible under the statute for permits to be at hberty cannot 
properly be held beyond the term of their minimum sen- 
tence unless at the expiration of such minimum term such 
prisoners have definitely refused to assent to lawful and 
reasonable terms and conditions prepared by the Board of 
Parole and formally presented to such prisoners for their 
acceptance or rejection at that time. 

Second. — I have already answered your second question 
in my answer to your first question. 

Third. — It is reasonable to suppose that many of the 
terms and conditions imposed upon such prisoners are 
aimed to govern their movements after release, and accord- 



JAY R. BENTON, ATTORNEY-GENERAL. 209 

ingly the prisoners cannot be said to have broken them 
until their conduct after release so demonstrates. But as 
I stated in my answer to your first question, it is my opinion 
that one of the terms and conditions may be that the 
prisoner shall signify his assent to all or some of the terms 
and conditions imposed in his particular case before he 
receives his permit to be at liberty. If he refuses so to 
assent the Board may properly refuse him such permit, at 
least until he does so assent. 

Fourth. — The statute does not expressly require the 
terms and conditions therein referred to be in writing, and 
accordingly I cannot say that they must be; but from the 
use of the word "prescribe," such an intention may properly 
be inferred. In my opinion, a matter of such importance 
should require the practice of preparing such terms and 
conditions in writing in order that no controversy, mis- 
understanding or ambiguity should arise in relation thereto. 
Such terms and conditions may be few or many, as the 
Board of Parole may decide, according to the particular 
facts of each case, and in all fairness it seems to me that the 
prisoner should be furnished with a copy at the time his 
permit is granted, and that they should be clearly explained 
to him. If thus always available to him and clearly ex- 
pressed, no prisoner can thereafter plead ignorance or 
misunderstanding of them. A copy should also be pre- 
served with the records pertaining to said prisoner. I 
understand that this is substantially the custom in such 
cases. 



210 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Com- 
missioner of 
Public Health. 

1926 
December 24. 



Department of Public Health — Quarantine — 
Typhoid Carrier. 

The Department of Public Health has no authority to establish quarantine regula- 
tions for, or forcibly to restrain, typhoid carriers, in the absence of reasonable 
regulations with relation to such carriers made by local boards. 

You have asked my opinion relative to the following 
matter : — 

The Department is faced with the problem of control of a typhoid 
carrier who has repeatedly been the cause of sickness, not only in this State 
but elsewhere. The difficulty of control is that he moves from one com- 
munity to another and may be outside a local jurisdiction at the time the 
sickness is recognized. Under G. L., c. Ill, § 7, the Department is given 
"co-ordinate powers as a board of health, in every town, with the board of 
health thereof." 

In your opinion, is it within the power of the Department to establish 
quarantine regulations in this particular case and to cause the arrest and 
forcible restraint of this individual if the regulations are broken? 

The duties of the Department of Public Health are con- 
tained in G. L., c. 111. Section 5, as amended by St. 1921, 
c. 322, provides as follows : — 

The department shall take cognizance of the interests of health and life 
among the citizens of the commonwealth, make sanitary investigations and 
inquiries relative to the causes of disease, and especially of epidemics, the 
sources of mortality and the effects of localities, employments, conditions 
and circumstances on the public health, and relative to the sale of drugs 
and food and adulterations thereof; and shall gather such information 
relating thereto as it considers proper for diffusion among the people. It 
shall advise the government concerning the location and other sanitary 
condition of any public institution; and shall have oversight of inland 
waters, sources of water supply and vaccine. institutions; and may, for 
the use of the people of the commonwealth, produce and distribute anti- 
toxin and vaccine lymph and such specific material for protective inocula- 
tion, diagnosis or treatment against typhoid fever and other diseases as 
said department may from time to time deem it advisable to produce and 
distribute; and may sell, under such rules, regulations or restrictions as the 
council may establish, such amounts of the various biologic products 
prepared or manufactured in the laboratories of the department, as con- 
stitute an excess over the amounts required for the diagnosis, prevention 
and treatment of infectious diseases within the commonwealth. It shall 



JAY R. BENTON, ATTORNEY-GENERAL. 211 

annually examine all main outlets of sewers and drainage of towns of the 
commonwealth, and the effect of sewage disposal. 

Section 6 authorizes the Department of Public Health to 
define what diseases shall be deemed to be dangerous to the 
public health. Section 7 provides as follows: ^ — 

If smallpox or any other contagious or infectious disease declared by 
the department to be dangerous to the public health exists or is likely to 
exist in any place within the commonwealth, the department shall make an 
investigation thereof and of the means of preventing the spread of the 
disease, and shall consult thereon with the local authorities. It shall have 
co-ordinate powers as a board of health, in every town, with the board of 
health thereof. It may require the officers in charge of any city or state 
institution, charitable institution, public or private hospital, dispensary 
or lying-in hospital, or any board of health, or the physicians in any town 
to give notice of cases of any disease declared by the said department to 
be dangerous to the public health. Such notice shall be given in such 
manner as the department may deem advisable. If any such officer, 
board or physician refuses or neglects to give such notice, he or they shall 
forfeit not less than fifty nor more than two hundred dollars. 

City and town boards of health are expressly given power 
to make reasonable health regulations. G. L., c. Ill, § 31, 
as amended by St. 1924, c. 180. 

By G. L., c. Ill, § 92, each city, except Brockton, shall, 
and each town may, and upon request of the Department 
shall, estabhsh and maintain constantly within its limits 
one or more hospitals for the reception of persons having 
smallpox, diphtheria, scarlet fever, tuberculosis or other 
diseases dangerous to the public health as defined by the 
Department, unless there already exists therein a hospital 
satisfactory to the Department for the reception of persons 
ill with such diseases, or unless some arrangement satis- 
factory to the Department is made between neighboring 
municipalities for the care of such persons. Section 95 
provides as follows : — 

If a disease dangerous to the public health breaks out in a town, or if 
a person is mfected or lately has been mfected therewith, the board of 
health shall immediately provide such hospital or place of reception and 
such nurses and other assistance and necessaries as is judged best for his 



212 OPINIONS OF THE ATTORNEY-GENERAL. 

accommodation and for the safety of the inhabitants, and the same shall 
be subject to the regulations of the board. The board may cause any sick 
or infected person to be removed to such hospital or place, if it can be done 
without danger to his health; otherwise the house or place in which he 
remains shall be considered as a hospital, and all persons residing in or in 
any way connected therewith shall be subject to the regulations of the 
board, and, if necessary, persons in the neighborhood may be removed. 
When the board of health of a town shall deem it necessary, in the interest 
of the public health, to require a resident wage earner to remain within 
such house or place or otherwise to interfere with the following of his em- 
ployment, he shall receive from such town during the period of his restraint 
compensation to the extent of three-fourths of his regular wages; provided, 
that the amount so received shall not exceed two dollars for each working 
day. 

Local boards of health are vested with drastic powers 
relative to nuisances and causes of sickness. G. L., c. Ill, 
§ 122, provides as follows : — 

The board of health shall examine into all nuisances, sources of filth 
and causes of sickness within its town, or on board of vessels within the 
harbor of such town, which may, in its opinion, be injurious to the public 
health, shall destroy, remove or prevent the same as the case may require, 
and shall make regulations for the public health and safety relative thereto 
and to articles capable of containing or conveying infection or contagion 
or of creating sickness brought into or conveyed from the town or into or 
from any vessel. Whoever violates any such regulation shall forfeit not 
more than one hundred dollars. 

The power of the Department of Public Health to make 
rules and regulations is limited to certain specified objects, 
while the power of local boards of health to make reasonable 
health regulations is broad and embracing, disclosing the 
intention of the Legislature to vest control largely in local 
boards rather than in the Commonwealth through the 
Department of Public Health. 

In the absence of express power vested in the Department 
of Public Health to establish quarantine regulations in the 
case of a person who has been found to be a typhoid carrier, 
such right does not exist unless it can be implied from the 
sentence in G. L., c. Ill, § 7, providing that the Department 
''shall have co-ordinate powers as a board of health, in every 



JAY R. BENTON, ATTORNEY-GENERAL. 213 

town, with the board of health thereof." The word "co- 
ordinate" is usually defined as "existing or occurring to- 
gether in equal degree or similar relation" or "to place in 
harmonious or reciprocal relation; combine or adjust for 
action or for any end," Standard Dictionary. For ex- 
ample, the word "co-ordinate," whenever used with 
reference to the three departments of state, impUes equahty 
and rank, importance, independence and dignity. Woods 
V. Sheldon, 69 N. W. 602. It is not the same as "con- 
current." See Commonwealth v. Nickerson, 236 Mass. 281. 
In an opinion to the State Board of Health (III Op. 
Atty. Gen. 81), defining R. L., c. 75, § 8, now G. L., c. Ill, 
§ 7, it was said : — 

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

The strong reason for assuming that the powers referred to are con- 
ferred only where contagious disease exists or is likely to exist is the fact 
that they are mentioned in a section which purports to treat only of 
contagious or infectious diseases. 

In my opinion, if a local board of health has estabHshed 
reasonable health regulations it may be that the Depart- 
ment of Public Health has "co-ordinate powers" as a board 
of health in every town with the board of health thereof 
with respect to their enforcement, but in the absence of such 
health regulations, duly enacted by a local board of health, 
it is my opinion that it is not within the power of the Depart- 
ment of Public Health to establish quarantine regulations 
under the facts contained in your letter, or to cause the 
arrest and forcible restraint of the person referred to, imder 
the law as it now exists. 



214 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Metro- 
politan District 
Commission. 

1926 
December 31. 



Right of Access to Land taken for Park Purposes — 
Abutting Owners — Gasoline Filling Station. 

The fact that land is taken for a public park does not necessarily give the abutting 
owners a right of access to such land. The abutting owners may have a right 
of access to such land used as a parkway, by virtue of and governed by the 
terms of a deed, given by their predecessor in title, to a city. 

You request my opinion as to the right of the Beacon 
Oil Company, owner of land abutting on Memorial Drive 
in Cambridge, to access to said drive in connection with a 
gasoUne filUng station maintained or to be maintained on the 
owner's premises. You ask specifically : — 

1. Does the fact that the land was taken for a pubHc 
park give the abutting owners a common-law right of access 
such as was given in the Anzalone case? 

2. Do the present owners of the abutting land have a 
right of access by virtue of the provisions of the deed referred 
to? 

You state : — 

This land was taken by the city of Cambridge for park purposes 
under the provisions of St. 1892, c. 341, and St. 1893, c. 337. In March, 
1897, the then owner of the land to which the Beacon Oil Company 
petitions for these driveway entrances and of land taken for the park in 
front, now incorporated in Memorial Drive, conveyed to the city of 
Cambridge the land included in the taking by a stereotyped form of 
deed then in use by the city, which contained, among others, the fol- 
lowing provision, in substance: 

"And for the above-named consideration and the further consideration 
that said City of Cambridge shall construct along the boundary line of 
said park, within said parcel of land, a roadway and walk to which we 
and our heirs and assigns, owners or occupants of adjoining lands of 
grantor, shall have free access, with the right to use the same for the 
purposes of a way, subject to such reasonable rules and regulations as may 
from time to time be made by the Park Commissioners of said City or by 
any other board or department having for the time being the control and 
management of said park, we hereby, for ourselves and our heirs, execu- 
tors and administrators, covenant with the said City of Cambridge that 
we and our heirs and assigns will hold our remaining land abutting upon 
said park and to a distance of one hundred feet therefrom, subject to the 
following restrictions, which shall be inserted or referred to in any con- 



JAY R. BENTON, ATTORNEY-GENERAL. 215 

veyance hereafter made by us or them of the whole or any part of said 
restricted land: 

1. No building erected or placed upon said premises shall be used for 
a livery or public stable or for any mechanical, mercantile or manu- 
facturing purposes. . . ." 

Then followed a provision, in substance, that the restrictions above 
set forth shall continue in force so long as such roadway and walk shall 
be maintained by said city of Cambridge, and the grantor, his heirs and 
assigns, owners or occupants of the grantor's adjoining land, shall have 
free access thereto and liberty to use the same for the purposes of a way 
subject to the rules and regulations aforesaid. 

It is my understanding that the land described as Me- 
morial Drive became the property of the Commonwealth 
and came under the control of the Metropolitan District 
Commission by virtue of St. 1920, c. 509. Section 2 of said 
act reads as follows : — 

Upon the conveyance of the said lands as provided in section one, 
the metropolitan district commission shall have all the powers and duties 
in respect thereto conferred upon the metropolitan park commission by 
chapter four hundred and seven of the acts of eighteen hundred and ninety- 
three and acts in addition thereto and in amendment thereof. 

I answer your first question in the negative. 

In an opinion given by me to your Commission under 
date of September 19, 1923 (VII Op. Atty. Gen. 259), it 
is said : — 

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 provisions of G. L., c. 92, § 33, formerly St. 
1893, c. 407, and 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 Com- 
mission, 232 Mass. 389) ; and in the absence of an easement given by the 
Commonwealth to some adjoining landowner, the adjoining landowner 
will not have any right of way from his land to such road. 

The roadway involved in the Anzalone case to which you 
refer {Anzalone v. Metropolitan District Commission, 257 
Mass. 32) was constructed under St. 1894, c. 288. 



216 OPINIONS OF THE ATTORNEY-GENERAL. 

I answer your second question in the affirmative. 

Under the reasoning in the Anzalone case the abutting 
owner has a right of access under the provisions of the deed 
above referred to. Anzalone v. Metropolitan District Com- 
mission, 257 Mass. 32, 36. I assume that the landowner 
is not violating the restrictions set forth in the deed. Also, 
it is settled by the decision in the Anzalone case and in the 
case of Metropolitan District Commission v. Cataldo, 257 
Mass. 38, that the right of access is "subject to reasonable 
restrictions and requirements as to location, construction, 
and use deemed by the Commissioners to be necessary for 
the public safety and convenience." Metropolitan District 
Commission v. Cataldo, 257 Mass. 38, 42. 



Land in Tidewater — Compensation for Rights 
THEREIN — Licenses. 

The Governor and Council may determine the compensation to be paid for rights 
relative to the placing of structures granted in land of the Commonwealth in 
tidewater; but if only a revocable license to build structures thereon is granted 
by the Division of Waterways and Public Lands, no compensation is required 
by the statute to be paid. 

To the Com- You ask my opinion whether charges can be made by 

missioner of ./a <-' 

Pub'J^ Works, ti^g Governor and Council under G. L., c. 91, § 22, or other- 
january4. ^'g^^ ^g compeusatiou for rights granted in land of the 
Commonwealth by licenses to place cables, wires, pipes and 
similar structures upon such land in tidewater. You ask 
me also whether G. L., c. 91, requires a license from the 
Division of Waterways and Public Lands for the placing of 
cables and wires in the tidewaters of the Commonwealth, 
whether the Governor and Council may determine the com- 
pensation to be paid irrespective of any license, whether 
such structures may be declared a public nuisance under 
section 23 if unlicensed or if compensation has not been 
paid, and whether if compensation is paid permanent rights 
are acquired that can be revoked only by legislative act or 



JAY R. BENTON, ATTORNEY-GENERAL. 217 

repayment of compensation, notwithstanding the insertion 
of a revocable clause in the license. 

Your inquiry requires first an analysis of the statutory 
provisions governing the issuing of licenses for structures 
in tidewater and the interpretation of those provisions by 
the court and by the Attorney-General. In the General 
Laws these provisions appear in chapter 91, and so far as 
material to this inquiry are as follows : — 

Section 14. The division may license and prescribe the terms for 
the construction or extension of a wharf, pier, dam, sea wall, road, bridge 
or other structure, or for the filling of land or fiats, or the driving of piles 
in tide water below high water mark, but not, except as to a structure 
authorized by law, beyond any established harbor line, nor, unless with 
the approval of the governor and council, beyond the line of riparian 
ownership. . . . 

Section 15. Every authority or license granted since eighteen hun- 
dred and sixty-eight or hereafter granted by the commonwealth to any 
person to buUd a structure or do other work . . . upon ground over which 
the tide ebbs and flows, except Boston harbor, or to fill up or to enclose 
the same, whether such ground is above or below low water mark, or within 
or beyond one hundred rods from high water mark, or whether private 
property or property of the commonwealth, shall be subject to the follow- 
ing conditions, whether expressed in the act, resolve or license granting 
the same or not: such authority or license shaU be revocable at the dis- 
cretion of the general court and shall expire in five years from its date, 
except as to valuable structures, fillings or enclosures actually and in 
good faith built or made under the authority or license during the term 
thereof; but if compensation has been paid to the commonwealth under 
section twenty-two or under any similar provision of law, the rights and 
privileges for which it has been paid shall not so terminate or bo revoked 
unless provision is made for repajmient of such compensation. 

Section S2. If authority or a license is granted by the general court 
or by the division to a person to build a wharf or other structure upon, 
or to fill or otherwise occupy, land in tide water, or to build or extend 
any structure or drive piles, fill land or make any obstruction, encroach- 
ment or excavation in, over or upon the waters of any great pond, he shall, 
before the work is begun, pay to the commonwealth such compensation 
for the rights granted in any land the title to which is in the commonwealth 
as shall be determined by the governor and council. . . . 

Section 23. Every erection made and all work done within tide water, 
. . . not authorized by the general court or by the division, or made or 



218 OPINIONS OF THE ATTORNEY-GENERAL. 

done in a manner not sanctioned by the division, if a license is required 
as hereinbefore provided, shall be considered a public nuisance. . . . 

Legislation regulating erections and works in tidewaters 
was first enacted in St. 1866, c. 149, establishing the Board 
of Harbor Commissioners and giving to them the general 
care and supervision of all the harbors and tidewaters and of 
all the fiats and lands flowed thereby within the Common- 
wealth, except the Back Bay lands, in order to prevent and 
remove unauthorized encroachments. By section 4 of the 
act the commissioners were given power to supervise the 
building of certain structures and the filling of fiats in tide- 
waters authorized by the Legislature, and were required to 
ascertain the amount of tidewater displaced, for which com- 
pensation was to be paid to the Commonwealth. Section 5 
declared unauthorized erections and works within tide- 
waters to be a public nuisance. 

St. 1869, c. 432, provided that all authority or license 
granted during that session of the Legislature, or that might 
be thereafter granted by the Commonwealth, to build any 
structure upon ground over which the tide ebbs and flows, 
or to fill up or enclose the same, should be subject to the 
condition that such license or authority should be revocable 
at any time at the discretion of the Legislature and should 
expire at the end of five years from its date, except where 
and so far as valuable structures, fillings or enclosures should 
have been actually and in good faith built or made under 
the same. 

St. 1872, c. 236, in section 1, provided that ''any person 
may build or extend a wharf or construct a pier, dam, sea- 
wall, road, bridge or other structure, fill land or flats, or drive 
piles in or over tidewater below high-water mark within the 
line of riparian ownership, on any shore and within whatever 
harbor Hues there may be at the time estabhshed by law 
along such shore : provided the license of the board of harbor 
commissioners is first obtained in the manner provided by" 
St. 1866, c. 149, § 4. Section 2 provided that the Board of 
Harbor Commissioners might grant licenses to build or ex- 



JAY R. BENTON, ATTORNEY-GENERAL. 219 

tend such structures or fill land or flats in or over tidewater 
below high water mark and beyond the line of riparian 
ownership, upon such terms as they might prescribe, with the 
provisos that no such license beyond the line of riparian 
ownership should be valid unless approved by the Governor 
and Council or except where a harbor line had been estab- 
Hshed, and that no such license should have effect beyond 
such harbor hne except in relation to a structure authorized 
by law outside such hne. The power to grant such licenses 
beyond the line of riparian ownership where no harbor line 
had been estabhshed was given to the board by St. 1874, 
c. 347, subject to certain restrictions. 

St. 1874, c. 284, provided that whenever any authority 
or license was thereafter granted by the Legislature or by 
the Board of Harbor Commissioners, with the approval of 
the Governor and Council, to build any wharf or other 
structure or to fill or otherwise occupy land in tidewater 
below low water mark, the person so authorized should pay 
to the Commonwealth such compensation for the rights and 
privileges granted in such land as should be determined by 
the Governor and Council to be just and equitable; and it 
also provided that when such compensation had been paid 
the rights and privileges so granted should not, under St. 
1869, c. 432, terminate in five years, and should not be rev- 
ocable unless provision was made in such revocation for 
repayment by the Commonwealth of the amount thereof. 

The provisions of these acts were combined in P. S., c. 19, 
§§ 6-18, the Board of Harbor and Land Commissioners 
having then replaced the previous Board of Harbor Com- 
missioners. By subsequent enactments the powers of that 
board were transferred to the Commission on Waterways 
and Public Lands and finally to the Division of Waterways 
and Public Lands. G. L., c. 91, §§ 14, 15, 22 and 23, are 
substantially continuations, with an exception referred to 
later, of P. S., c. 19, §§ 9, 12, 16 and 17. 

An account of the history of this legislation is given in 



220 OPINIONS OF THE ATTORNEY-GENERAL. 

I Op. Atty. Gen. 412, and in Attorney General v. Boston & 
Lowell R.R. Co., 118 Mass. 345. 

Licenses granted by the General Court to build structures 
in tidewater prior to St. 1869, c. 432, have generally been 
construed to be irrevocable. The court has said that it 
was the common understanding that they operated as grants 
and not as mere revocable licenses. Fitchburg R.R. Co. v. 
Boston & Maine R.R., 3 Gush. 58, 87; Bradford v. Mc- 
Questen, 182 Mass. 80; Treasurer and Receiver General v. 
Revere Sugar Refinery, 247 Mass. 483, 489. In that respect 
they differ fundamentally from locations granted to public 
service corporations to occupy the public streets. Pierce 
V. Drew, 136 Mass. 75; Springfield v. Springfield St. Ry. 
Co., 182 Mass. 41, 47, 48; Metropolitan Home Tel. Co. v. 
Emerson, 202 Mass. 402; Connecticut Valley St. Ry. Co. v. 
Northampton, 213 Mass. 54, 63, 64; Union Institution for 
Savings v. Boston, 224 Mass. 286. This rule of construction 
is, of course, a rule for determining the legislative intention 
in granting such licenses. It would therefore not prevail 
as against an expressed purpose that a license should be 
temporary or revocable. 

St. 1869, c. 432, as amended by St. 1874, c. 284 (G. L., 
c. 91, § 15), provided, in substance, that such licenses, 
granted by the Commonwealth after 1868, should expire in 
five years or might be sooner revoked by the General Court 
unless in the meantime valuable structures, filhngs or en- 
closures were built or made under the license, and with the 
further proviso that if compensation had been paid to the 
Commonwealth for the rights granted the license should 
not terminate or be revoked unless provision was made for 
repayment of that compensation. In effect, all licenses 
thereafter granted, irrespective of other terms and conditions, 
were made subject in any event to forfeiture for non-user of 
the rights granted, with the exception in case compensation 
had been paid. Cf. Treasurer and Receiver General v. Revere 
Sugar Refinery, 247 Mass. 483, 489. Manifestly it could not 
and was not intended to curtail the power of future legisla- 



JAY R. BENTON, ATTORNEY-GENERAL. 221 

tures to grant licenses subject to other conditions as to 
expiration or revocation. 

By St. 1872, c. 236 (G. L., c. 91, § 14), the Legislature, as 
we have seen, authorized the Harbor Commissioners to 
license and prescribe the terms for the construction or exten- 
tion of structures, the filling of lands or flats, and the driving 
of piles in tidewater below high water mark. The purpose 
of this statute was doubtless to relieve the Legislature of the 
burden of granting such hcenses by special act. I Op. Atty. 
Gen. 412, 415. While the grant of power to prescribe the 
terms of licenses is without express limitation, it is, of course, 
subject to such limitations as may be found in the statutes 
as well as to the general requirement that the terms must be 
reasonable. Keefe v. Lexington & Boston St. Ry. Co., 185 
Mass. 183; Selectmen of Clinton v. Worcester, etc., St. Ry. Co., 
199 Mass. 279, 285; Treasurer and Receiver General v. Revere 
Sugar Refinery, 247 Mass. 483, 491 ; Grand Rapids v. Braudy, 
105 Mich. 670, 678; Schwuchow v. Chicago, 68 111. 444. 

The only statutory provision which for our purposes needs 
to be considered here as containing possible limitations on 
the general power to prescribe terms is St. 1869, c. 432, as 
amended (G. L., c. 91, § 15), providing for the expiration 
or revocation by the General Court of licenses under which 
action has not been taken. 

Whether this statute should be construed as governing the 
subject of revocation so as to preclude the Division from 
prescribing as a term of any license any provision with regard 
to the revocabihty thereof different from that contained in 
the statute, might, if it were a new question, be a matter of 
some doubt. But I am informed that it has been the prac- 
tice of the Board of Harbor Commissioners and its succes- 
sors, since 1872, to grant hcenses for the erection of tempo- 
rary structures upon condition that they shall be removed 
at the request of the Board and that the licenses so granted 
may be revoked or modified, that many such licenses have 
been issued from that time on, and that the authority to do 
so has not been questioned. It is a general rule in the inter- 



222 OPINIONS OF THE ATTORNEY-GENERAL. 

pretation of statutes that the practical construction put 
upon a legislative act by those charged with its enforcement 
is entitled to considerable weight. Burrage v. County of 
Bristol, 210 Mass. 299, 301; Tyler v. Treasurer and Receiver 
General, 226 Mass. 306, 310. 

Again, the Board of Harbor and Land Commissioners was 
advised by former Attorney-General Herbert Parker, in an 
opinion dated January 15, 1906 (not published), that the 
Board had the right in granting a Ucense to reserve expressly 
the right to revoke it for some reasonable cause, and that the 
provisions of R, L., c. 96, § 21 (G. L., c. 91, § 15), were not 
in conflict. As to those provisions he said : — 

The Legislature has limited the time in which a man may act under a 
license to five years from the date thereof, and has made such license 
revocable at its discretion. But that the Legislature has seen fit to place 
a maximum limit upon the length of time during which a license shall 
remain in force, and has retained the power to put an end to it sooner, 
is not an adequate reason for the position that the Board may not still 
further limit the existence of the license by virtue of its right to prescribe 
terms. 

On the whole, therefore, it is my opinion that the Division 
has the power to prescribe as a term of a Ucense that it shall 
be revocable and that structures built thereunder shall be 
removed upon such revocation if, under the circumstances 
of the particular case, such requirement is a reasonable one. 
But the last clause in the act of 1869, as amended, does con- 
tain a clear limitation of authority in the cases to which it 
relates. By virtue of that proviso the Division would not 
have power to prescribe as a term of a license for which com- 
pensation had been paid that it should terminate or be rev- 
ocable without making adequate provision for repayment 
of such compensation. 

The duty imposed upon the Governor and Council by 
section 22 is to determine the compensation to be paid for 
rights granted in land of the Commonwealth. Where the 
license given by the Division is a revocable one, no right in 



JAY R. BENTON, ATTORNEY-GENERAL. 223 

land of the Commonwealth is granted, and therefore no 
compensation is required to be paid by section 22. 

Section 23 provides that "every erection made and all 
work done within tide water, . . . not authorized by the 
general court or by the division, ... if a license is required 
as hereinbefore provided, shall be considered a public 
nuisance." While in the General Laws there is no specific 
provision requiring a license from the Division or from the 
General Court for the erection of a structure, such require- 
ment is doubtless a plain inference. In that connection 
the provision in St. 1872, c. 236, § 1, requiring a license for 
the building or extension of the structures described in 
section 2 (G. L., c. 91, § 14) should be observed. The court 
has said that structures cannot be placed in tidewater with- 
out a license from public authority. Wyman v. County 
Commissioners, 157 Mass. 55, 57; N. Ward Co. v. Street 
Commissioners, 217 Mass. 381, 385; and the absence of a 
license has been said to be sufficient evidence that a structure 
is a public nuisance. Fuller v. Andrew, 230 Mass. 139, 145. 

Whether cables, wires and pipes are structures, within the 
meaning of section 14, is a question of considerable doubt. 
The word "structure" is defined broadly as any production 
or piece of work artificially built up, or composed of parts 
joined together in some definite manner. See Stevens v. 
Stanton Construction Co., 153 App. Div. 82; Nash v. Com- 
monwealth, 174 Mass. 335. Railroad tracks have fre- 
quently been held to be structures. Giant-Powder Co. v. 
Oregon Pac. Ry. Co., 42 Fed. 470; Ban v. Columbia Southern 
Ry. Co., 117 Fed. 21, 30; New York, N. H. & H. R.R. Co. 
V. New Haven, 70 Conn. 390; Flanagan v. F. W. Carlin . 
Const. Co., 134 App. Div. 236. Filling was held to be a 
structure in Clement v. Putnam, 68 Vt. 285, and so were 
poles and wires in Forbes v. Willamette Falls Electric Co., 
19 Or. 61. 

The objects and purposes for which licenses may be 
granted by the Division are described in section 14 as "for 
the construction or extension of a wharf, pier, dam, sea wall, 



224 OPINIONS OF THE ATTORNEY-GENERAL. 

road, bridge or other structure, or for the filhng of land or 
flats, or the driving of piles in tide water below high water 
mark." The words "or other structure" are used in con- 
junction with words describing things which are not merely 
laid on the land but are constructed thereon. The filling of 
land and the driving of piles are separately described. In 
the interpretation of statutes the principle of ejusdem generis 
or noscitur a sociis requires that the application of general 
words should be confined to things of similar import with 
more particular words preceding. Commonwealth v. Lowell 
Gas Light Co., 12 Allen, 75, 77; Clark v. Gaskarth, 8 Taunt. 
431; Renick v. Boyd, 99 Pa. St. 555; Matter of Hermance, 
71 N. Y. 481, 486, 487; People v. New York, etc., Ry. Co., 
84 N. Y. 565, 568, 569; The J. Doherty, 207 Fed. 997, 999, 
1000; Endlich, Interpretation of Statutes, §§ 405, 406; 
cf. Reed v. Tarbell, 4 Met. 93, 101. 

In determining the extent of the authority granted to the 
Division by section 14, so far as concerns cables and wires, 
the effect of G. L., c. 166, § 21, authorizing the construction 
of lines for transmitting electricity in public ways and 
waters of the Commonwealth, must also be considered. 
The Legislature has there expressly authorized the con- 
struction of such lines across and under any waters in the 
Commonwealth so long as navigation is not endangered or 
interrupted. G. L., c. 166, § 21, is as follows: — 

A company incorporated for the transmission of intelligence by elec- 
tricity or by telephone, whether by electricity or otherwise, or for the 
transmission of electricity for lighting, heating or power, or for the con- 
struction and operation of a street railway or an electric railroad, may, 
under this chapter, construct lines for such transmission upon, along, 
under and across the public ways and across and under any waters in 
the commonwealth, by the erection or construction of the poles, piers, 
abutments, conduits and other fixtures, except bridges, which may be 
necessary to sustain or protect the wires of its lines; but such company 
shall not incommode the public use of public ways or endanger or interrupt 
navigation. 

The succeeding sections in that chapter contain provisions 
for the granting of locations in public ways, but there are 



JAY R. BENTON, ATTORNEY-GENERAL. 225 

no such provisions with respect to the granting of locations 
across or under the waters in the Commonwealth. The 
court has held that the general subject of the construction 
of lines for transmitting electricity is regulated by G. L., 
c. 166, and that it was intended to govern and be a code for 
the whole subject. Metropolitan Home Tel. Co. v. Emerson, 
202 Mass. 402, 406, 407. 

On the other hand, I am informed that for many years it 
has been the custom of the Board of Harbor and Land 
Commissioners to grant licenses to lay cables and wires in 
tidewater, reserving the right to require the removal or 
change in location of such cables and wires. 

Notwithstanding this practical construction of the statute 
as giving authority to the Board to grant licenses in such 
cases, it is my opinion that it cannot prevail as against the 
plain language of chapter 166, as interpreted by the court, 
by which authority is given to companies duly incorporated 
to construct lines for transmitting electricity across and 
under any waters in the Commonwealth, that cables and 
wires, especially if used for transmitting electricity, are not 
structures within the meaning of G. L., c. 91, § 14, that the 
Division is not authorized to grant licenses to place them in 
tidewater, and that the placing of such cables and wires 
in tidewater cannot be a public nuisance under section 23, 
since no license is required. 

As to water pipes, gas pipes and sewers, while the question 
whether they are structures within the meaning of sections 
14 and 23 is doubtful, I am inclined to hold that they are 
and that the Division has full authority with respect to them. 

My answers to your questions more specifically are as 
follows : — 

I think that the present practice of the Division as to 
cables and wires is wrong in the respects which I have pointed 
out, and that charges for compensation as to them cannot 
be made by the Governor and Council. Cables and wires 
authorized under G. L., c. 166, § 21, require no license 
from the Division, are not subject to payment of compensa- 



226 OPINIONS OF THE ATTORNEY-GENERAL. 

tion, and are not a public nuisance unless they endanger or 
interrupt navigation. As to pipes, I think, as I have said, 
that they are structures for which licenses may be issued by 
the Division and compensation charged if rights in land 
of the Commonwealth are granted. 

You state that the Postal Telegraph-Cable Company has 
taken the position that, being authorized by the Post Road 
Act of July 24, 1866 (14 U. S. Stat. 221, Rev. Stat., § 5263, 
et seq.), to lay lines under, over and across any and all 
navigable waters of the United States, it may construct 
and operate such hues without any permit from the State. 
That, however, is not an accurate statement of the law. 
The effect of the Federal statute was to deny to a State the 
authority to say that a telegraph company may not operate 
lines constructed over postal roads within its borders; but 
the State has, nevertheless, the right to impose reasonable 
restrictions and regulations. See Western Union Tel. Co. 
V. Richmond, 224 U. S. 160, 169, 170; Essex v. New England 
Tel. Co., 239 U. S. 313; Postal Telegraph-Cable Co. v. 
Richmond, 249 U. S. 252, 259; VIII Op. Atty. Gen. 1. 

In my opinion, the State has the power to require the 
granting of licenses for the construction of interstate lines 
under its waters, and may delegate the power to supervise 
such construction. I do not find, however, that it has done 
so. 

Statutory provisions for the regulation of structures and 
works in tidewater have remained substantially unaltered 
for fifty years. In several important respects the power of 
the Division to grant licenses, to prescribe their terms and 
to supervise works in tidewater needs definition and, it 
may be, enlargement. This is a matter which you may 
think it wise to bring to the attention of the General Court. 



jay r. benton, attorney-general. 227 

State Employees — Mechanics' and Tradesmen's Pay 
— Permanent Employees. 

The Commonwealth is not required by G. L., c. 149, § 26, to pay mechanics and 
tradesmen, permanently in its employ on an annual and full time basis, the 
customary and prevailing rate of wages. 

You request my opinion as to whether or not the Com- mi'sskTn^n'Ad- 
monwealth is by law required to pay mechanics and trades- ^nd'Fiifance. 
men not less than the customary and prevailing rate of January is. 
wages for a day's work in the same trade or occupation in 
the locality where public works are under construction if 
such mechanics and tradesmen are on the regular main- 
tenance payroll and are part of the permanent force of 
employees maintained by the various State institutions. 

You state that the various State institutions maintain a 
permanent force of employees, such as carpenters, masons, 
plumbers, steamfitters and like skilled tradesmen, who are 
paid on an annual basis and employed full time throughout 
the year. In fixing the compensation of such employees 
the factors of permanency and year-round employment are 
taken into consideration and balanced against the going 
rates for intermittent employment in such trades under 
private employers. 

The answer to your question depends upon the construc- 
tion of G. L., c. 149, § 26, which provides as follows: • — 

In the emplojinent of mechanics, teamsters and laborers in the con- 
struction of public works by the commonwealth, or by a county, town or 
district, or by persons contracting therewith for such construction, prefer- 
ence shall first be given to citizens of the commonwealth who have served 
in the army or navy of the United States in time of war and have been 
honorably discharged therefrom or released from active duty therein, and 
who are qualified to perform the work to which the employment relates; 
and secondly, to citizens of the commonwealth generally, and, if they can- 
not be obtained in sufficient numbers, then to citizens of the United States; 
and every contract for such work shall contain a provision to this effect. 
The wages for a day's work paid to mechanics and teamsters employed in 
the construction of public works as aforesaid shall be not less than the 
customary and prevailing rate of wages for a day's work in the same trade 
or occupation in the locality where such public works are constructed; 



228 



OPINIONS OF THE ATTORNEY-GENERAL. 



provided, that no town in the construction of pubUc works shall be re- 
quired to give preference to veterans not residents of such town, over 
citizens thereof. Any contractor who knowingly and wilfully violates this 
section shall be punished by a fine of not more than one hundred dollars. 

In my opinion, this section does not apply to the perma- 
nent force of State employees, who are paid on an annual 
basis and employed full time throughout the year. Such 
permanent employees are not paid "wages for a day's 
work" but are paid compensation for regular services 
throughout the year, in the fixing of which compensation 
the factors of permanency and year-round employment are 
taken into consideration. A per diem employee may 
usually recover wages only on proof of actual work on a 
particular job, while a permanent employee who is paid 
on an annual basis and employed full time throughout the 
year usually receives his compensation at the rate fixed by 
his contract, regardless of the particular job he is called 
upon to do from day to day within the scope of his employ- 
ment. 



Soldier — Dishonorable Discharge — World War. 

A soldier who received a "bad conduct" discharge from the service prior to the 
expiration of his fuli term of enlistment is not entitled to the benefits of Gen. 
St. 1919, c. 283, even though such discharge was subsequent to the close of 
the World War and the enlistment prior thereto. 



To the Treas- 
urer and Re- 
ceiver General. 

1927 
January 18. 



You request my opinion as follows : — 

Under date of October 9, 1919, Hon. Henry A. Wyman advised this 
department that Gen. St. 1919, c. 283, § 5, should be construed to exclude 
from the benefit of the act all persons discharged for causes other than 
honorable. This section provides, in part, as follows: — 

"No person shall be eligible for any benefit accruing under this act who 
. . . shall have received a dishonorable discharge from the service of the 
United States." 

Does this opinion refer to those persons discharged prior to November 
11, 1918, or does it include those discharged subsequent to that date for 
causes other than honorable? 

This specific case before me is that of a man who enlisted for four years 



JAY R. BENTON, ATTORNEY-GENERAL. 229 

in December, 1917, performed honorable service until June, 1919, subse- 
quent to which his conduct became so bad as to necessitate a "bad con- 
duct" discharge in August, 1920. 

In the opinion to which you refer (V Op. Atty. Gen. 405), 
my predecessor, in considering Gen. St. 1919, c. 283, § 5, 
said : — 

In my judgment, this provision, when read in the light of the purpose 
of the act as declared in section 1, must not be strictly construed as refer- 
ring only to persons who receive discharges expressly declared by their 
terms to be dishonorable. It should, rather, in my judgment, be given a 
broader construction and be held to exclude from the benefits of the act 
all persons who did not receive an honorable discharge. It was the purpose 
of the statute, as declared in section 1, to recognize all services rendered 
in the army or navy by citizens of Massachusetts "to the full extent of 
the demands made upon them and of their opportunity." I cannot per- 
suade myself that the services rendered by a man who so conducted 
himself as a member of the army of the United States that it became 
necessary to discharge him therefrom for misconduct were services of the 
character intended to be recognized. I am unwilling to assume that the 
General Court intended thus to reward any man who so failed to perform 
his duties that he was discharged for misconduct. 

In the specific case you mention the term of enlistment 
was for four years, to wit, from December, 1917, to Decem- 
ber, 1921. Before this term expired, the soldier received a 
"bad conduct" discharge, to wit, in August, 1920. 

It accordingly follows that the soldier in question did not 
render the service his term of enhstment called for, "to the 
full extent of the demands made upon him and of his 
opportunity." 

The opinion does not refer only to those persons dis- 
charged prior to November 11, 1918, but includes those 
who actually entered the official service during the period 
specified in the statute, but who were discharged subsequent 
to that date for causes other than honorable. 



230 



OPINIONS OF THE ATTORNEY-GENERAL. 



OPINIONS 



OF 



ARTHUR K. READING, ATTORNEY-GENERAL 



Metropolitan District Commission — Charles River 
Basin — Private Canal — Repairs. 

The Metropolitan District Commission has no authority to compel the owners of 
land abutting on the private canal known as Broad Canal to make repairs to 
walls and wharves thereon. 



To the Metro- 
politan Dis- 
trict Com- 
mission. 
1927 
January 31, 



You have requested my opinion as to the authority of 
the Metropohtan District Commission to require owners 
of lands abutting on Broad Canal, East Cambridge, on the 
west bank of the Charles River Basin, to remedy conditions 
on their premises which threaten to cause obstructions to 
the canal and expense to the Commonwealth in removing 
the same in order to maintain certain depths of water re- 
quired by statute. 

You have also submitted to me a letter from the Boston 
Sand & Gravel Company, which, assuming the facts therein 
stated to be accurate, tends to show that certain buildings 
and bulkheads situated on lands formerly owned by the 
Mead-Morrison Company, title to which is now in the 
Holland System Company, are in such condition that they 
are Ukely to fall into the canal and obstruct the passage of 
boats. I am informed that the Boston Sand & Gravel 
Company is the owner of land bordering on said canal and 
maintains thereon a wharf for unloading boats which come 
up Broad Canal from the Charles River Basin; that the 
land of the Holland System Company, 31-45 Main Street, 
Cambridge, to which attention has been particularly di- 



ARTHUR K. READING, ATTORNEY-GENERAL. 231 

rected, also borders the canal between the property of the 
Boston Sand & Gravel Company, 77-89 Main Street, and 
the entrance to the canal. 

Broad Canal, on the westerly side of the Charles River, 
did not exist prior to 1806, when steps towards its con- 
struction were taken by private owners of flats who desired 
suitable access to the river from their lots by boat. By an 
agreement and deed dated July 8, 1806, recorded Middle- 
sex South District Deeds, January 11, 1808, book 172, 
page 496, all the owners of the land over which Broad Canal 
was to be laid out entered into an agreement among them- 
selves for the construction of such canal, and jointly con- 
veyed to each other all the land over which the canal was 
to be laid in designated undivided proportions, and by 
agreement provided for the payment of the expenses incident 
to the construction of the canal, by an allocation of such 
expenses to each of such owners, based apparently upon the 
frontage of lots owned by them severally on the proposed 
canal. This agreement and deed does not appear to have 
been signed by one of the named grantors, Josiah Mason, 
Jr., from whom both the Holland System Company and the 
Boston Sand & Gravel Company derive title to their respec- 
tive lots, but the projected canal was laid out immediately 
after the execution of the deed, according to a plan dated 
May 31, 1806, and recorded with Middlesex South District 
Deeds, record book 166, at end, and said Mason accepted 
the benefits of the canal as laid out, and after his death in 
1839 subsequent holders of the title to the land which had 
been his referred to it in the descriptions in their convey- 
ances of all portions sold as being bounded by the canal. 
The other owners whose parcels at the present time now 
abut on the canal derive their titles from Mason or from 
others named as grantors in the agreement of 1806. 

The canal was laid out and constructed and has been 
maintained since 1808 as private property, the title in the 
fee of the strip of land in which the canal was dug resting 



232 OPINIONS OF THE ATTORNEY-GENERAL. 

in the owners of the adjoining lands or in the heirs of the 
original parties to the agreement. 

Prior to the enactment of the statutes hereinafter referred 
to no action had been taken by the Commonwealth with 
relation to the canal, nor was anything done by any sub- 
division thereof which disturbed or in any way tended to 
abrogate private ownership of the canal, its walls or wharves, 
and it is operated at the present time as a private canal, 
title to which is in individuals, above described. Before 
the enactment in 1903 of legislation providing for the Charles 
River Basin and its dam along its present lines, a report was 
made to the Legislature by a committee appointed under 
chapter 105 of the Resolves of 1901, in which it was stated 
as follows : — 

The Broad Canal is owned by the proprietors of the banks as tenants 
in common under an agreement dated in 1806, by which they are author- 
ized to maintain a Canal at a depth of 9 feet, and they undoubtedly have 
certain riparian rights of access to tidewater. Any act authorizing the 
building of a dam should contain a provision that the owners of private 
property above the dam should recover damages for any injury occasioned 
to their property by reason of the construction of a dam and the conse- 
quent reduction of the water level. 

It is apparent, then, that the Legislature, in enacting 
the statutes relative to the Charles River Basin, herein- 
after referred to, had in mind the fact of private ownership 
of Broad Canal. In subsequent statutes the Legislature 
provided against the reduction of the water level in the 
canal, and thereby prevented an occasion for the recovery 
of damages. 

In 1903, under chapter 465 of the acts of that year (and 
subsequent amendments), the Charles River Basin Com- 
mission was appointed and constructed a dam across the 
Charles River below Broad Canal, forming a basin above 
the dam. St. 1909, c. 524, transferred all the powers, 
rights, duties and habihties of the Charles River Basin 
Commission to the Metropolitan Park Commission, and 
the Charles River Basin Commission was abolished. By 



ARTHUR K. READING, ATTORNEY-GENERAL. 233 

Gen. St. 1919, c. 350, § 123, the Metropolitan Park Com- 
mission was abolished and all its rights, powers, duties and 
obligations were transferred to the Metropolitan District 
Commission. 

In this connection it may be noted that another canal, 
constructed and situated much as is Broad Canal, leading 
from the Charles River between the dam and Broad Canal, 
is referred to by the Supreme Judicial Court in Wellington 
V. Cambridge, 214 Mass. 35, and is there held to be private 
property. It is also to be noted that the Charles River 
Basin Commission, before proceeding under the terms of 
St. 1903, c. 465, at the beginning of the work to dredge 
and to strengthen the walls and wharves in Broad Canal, 
took a release from the owners of the parcels abutting on 
the canal discharging the Commonwealth from liability 
for all claims for damages which might accrue to the owners 
through the acts of the Commission in doing such work, 
the parties to the release apparently recognizing by its 
execution the fact that there had been no appropriation of 
any of the property in question to a public use. It follows 
from these considerations that Broad Canal and its walls 
and wharves are private property. As it lies over fiats 
situated within the line of private ownership and not within 
the lines of the Charles River Basin, the Commission, in 
the absence of specific statutory authority, could have had 
no obUgation to prevent the filling up of such canal nor any 
duty relative to its maintenance. 

The situation of the Commission in its relation to Broad 
Canal is not affected by St. 1909, c. 524, § 5, as amended by 
St. 1910, c. 582, § 1, which authorizes the Commission to 
make reasonable rules and regulations "for the care, main- 
tenance, protection and policing of the Charles River Basin 
as herein defined," since the definition of the word "basin" 
in said chapter 524, while it includes the Charles River, 
the water thereof, pubhc navigable arms, tributaries and 
inlets, does not mention the canals which open thereon. 

The relation of the Commission to Broad Canal is not 



234 OPINIONS OF THE ATTORNEY-GENERAL. 

affected by St. 1913, c. 741, wherein the Commission is 
required to rebuild the wall on the premises of the estate of 
John J. Horgan, the predecessor in title to the property 
of the Boston Sand & Gravel Company, because this act is 
entirely special in its application, requiring the then land- 
owner to pay one-third of the cost and to sign an agreement 
holding the Commonwealth harmless on account of the 
work which it might do on such wall, and providing further 
that no repairs or rebuilding of such wall thereafter should 
be required to be done by the Commonwealth. The special 
requirement made by the Legislature for repairs to this 
particular piece of wall bordering the canal, referred to in 
the statute as a sea wall on the estate of Horgan, tends to 
show that in the legislative mind, in 1913, there was still 
no intent to treat Broad Canal or the walls along its borders 
as anything other than private property. 

The only statutory provision which has been made relative 
to this canal, from which it might conceivably be said that a 
duty relative to the maintenance of its walls rested upon the 
Commission, hes in St. 1910, c. 583, § 2, amending St. 1909, 
c. 524, § 6, and is as follows : — 

The metropolitan park commission throughout the year shall operate 
the locks and any drawbridges connected with said dam, without charge, 
and shall maintain said locks and the channels and canals authorized by 
section four of said chapter four hundred and sixty-five, at the depths 
provided for in said act and clear of obstructions caused by natural shoal- 
ing or incident to the building of said dam, and shall maintain the water 
in the basin at such level, and the locks, channels and canals sufficiently 
clear of obstructions by ice, so that any vessel ready to pass through the 
lock, and requiring no more depth of water than is provided for by said 
section four, can pass through to the wharves therein mentioned. 

St. 1903, c. 465, § 4, referred to in said section 6, reads as 
follows : — 

The commission shall dredge navigable channels in the basin from the 
lock to the wharves between the dam and Cambridge bridge, to Broad 
canal and to Lechmere canal, the channel to be not less than one hundred 
feet in width and eighteen feet in depth; shall dredge Broad canal to such 
depths as will afford to and at the wharves thereon not less than seven- 



ARTHUR K. READING, ATTORNEY-GENERAL. 235 

teen feet of water up to the Third Street draw, not less than thirteen feet 
of water from the Third Street draw to the Sixth Street draw, and not 
less than eleven feet of water from the Sixth Street draw to the railroad 
draw, and not less than nine feet of water for one hundred and twenty- 
five feet above the railroad draw; shall dredge Lechmere canal to such 
depths as will afford to and at the wharves thereon not less than seven- 
teen feet of water up to and including Sawyer's lumber wharf, and not 
less than thirteen feet of water from said wharf up to the head of the 
canal at Bent Street; all depths aforesaid to be measured from the water 
level to be maintained in the basin. 

The commission shall do all such dredging and all strengthening of 
the walls of the canals and of the basin where dredging is done by the 
driving of prime oak piles two feet on centres along the front of said 
wharves or walls, and all removing and relocating of pipes and conduits 
made necessary by such dredging, so that vessels requiring a depth of 
water not exceeding the respective depths above prescribed can lie along- 
side of, and in contact with, the wharves; and this work shall be done in 
such manner as to cause the least possible inconvenience to abutters, 
and shall be finished on or before the completion of the dam; and after 
the walls or wharves have been so strengthened, all repairs on or rebuilding 
of the walls and wharves shall be done by the abutters. 

It is apparent that the duty placed upon the Commission 
by said section 6 relates only to maintaining water at a 
certain level in the canal, keeping the canal clear of obstruc- 
tions caused by natural shoaling or incident to the building 
of said dam (which latter contingency is now a thing of the 
past), and keeping the canal clear of obstructions by ice, 
which duties I understand your Commission discharges. 
No other provision relative to duties connected with the 
canal after the completion of the work of constructing the 
basin is provided by any statute. 

As the Commission is not now charged with the duty of 
removing from the canal obstructions caused by other 
means than natural shoaling and ice, a cave-in of the walls 
of the canal or the wharves would not necessarily add to 
the burdens of the Commission in discharging their duties. 
The requisite depth of water in the canal might be main- 
tained notwithstanding obstructions therein not resultant 
from natural causes, and the Commission, as has been 



236 OPINIONS OF THE ATTORNEY-GENERAL. 

pointed out, has no duty placed upon it to remove such 
obstructions. 

St. 1903, c. 465, does not purport to take from the owners 
of the land bordering Broad Canal any of their real property 
nor any of the rights or easements which they possessed 
with relation thereto, nor has there ever been any such 
taking by any subdivision of the Commonwealth. In pro- 
viding, by the provisions of the various statutes noted, for 
the doing of work of the various sorts mentioned, upon and 
about the canal by the commissions charged with the con- 
trol of the basin, it may be assumed that the Legislature 
had determined that the doing of such work, which imme- 
diately benefited and still benefits the owners of this private 
property, ultimately inures to the benefit of the pubUc as a 
necessary part of the general scheme for the creation and 
maintenance of the basin as a whole. To construe the act 
otherwise would render its constitutionality in such parts 
as deal with the canals extremely doubtful, as providing in 
effect for the application of money to a purely private 
purpose, namely, the benefit of the private owners of the 
canals and their walls and wharves. Moreover, since there 
has been no taking from the owners of the canal and they 
are left in possession of their private property, the Legisla- 
ture could not impose upon them without compensation a 
duty to perform work upon their own property by repairing, 
rebuilding or otherwise. To do so would exceed the con- 
stitutional power of the Legislature, and would amount, in 
effect, to a taking of rights without compensation. The 
words of St. 1903, c. 465, § 4, to the effect that "after the 
walls and wharves have been so strengthened (by the 
original commission) all repairs on or rebuilding of the walls 
and wharves shall be done by the abutters," must be con- 
strued as limiting the duties of the Commission to the doing 
of the original work, and as making it plain that no duty of 
repairing from time to time rested upon such body, rather 
than as a mandatory provision requiring the owners to make 
repairs upon their own private property. 



ARTHUR K. READING, ATTORNEY-GENERAL. 237 

I am of the opinion, therefore, that your Commission has 
no authority to compel the owners to make repairs upon 
their private property abutting on the private canal known 
as Broad Canal. Doubtless, as between themselves, rights 
to unobstructed usage of the canal exist by virtue of the 
agreement of 1806 in the various owners of the canal and 
adjoining land, which they may be able to enforce by appro- 
priate proceedings in the courts, but the Commission is not 
the possessor or holder of such rights and cannot enforce 
them as between the owners or on its own behalf. 

Your Commission is charged with the performance of 
certain specific duties with relation to the canal by the 
statutes, which have been already cited. These consist 
in freeing the canal of natural accumulations therein, of 
removing ice therefrom and of maintaining the depth of 
the water at a designated level. No contractual obhga- 
tions exist on the part of the owners with the Common- 
wealth to do or to refrain from doing any acts upon their 
own property, and none arise under the circumstances from 
the provisions of the statutes. If a situation should occur 
by reason of failure to make repairs on the part of the owners 
whereby the canal became filled with obstructions not 
arising from natural causes but from the acts or omissions 
to act of such owners, so that it became physically impossible 
to perform the duties with relation to the canal which have 
been placed upon your Commission, then, inasmuch as at 
the present time it would seem that the performance of such 
duties benefits the private owners chiefly, at least in the 
first instance, the Commission might appropriately seek for 
relief in connection with such duties from the Legislature. 



238 opinions of the attorney-general. 

Constitutional Law — Interstate Commerce — 
Quarantine on Plants. 

G. L., c. 128, §§ 16-31, the Massachusetts Nursery Inspection Law, is effective as 
regards plants in interstate commerce, by reason of a joint resolution of Con- 
gress, approved by the President on April 13, 1926. 



To the Com 
missioner of 



I have your letter of January 11, 1927, in which, in view 

Agriculture. ^£ ^j^^ circumstances recited therein, you ask for a recon- 

e ruary . gideratiou by this department of the question whether 

or not it will be necessary for the General Court to reenact 

certain sections of the Massachusetts Nursery Inspection 

Law, which is now G. L., c. 128, §§ 16-31. 

The sections in question seem to be sections 20 and 27. 
They may be briefly summarized as follows : — 

Section 20 provides that no nursery stock shall be brought 
into the Commonwealth unless it bears an unexpired cer- 
tificate of inspection. Section 27 provides that the Director 
of the Division of Plant Pest Control may, after a public 
hearing, prohibit the delivery within the Commonwealth 
of nursery stock from outside thereof, under certain cir- 
cumstances. 

In view of the opinion I have reached, I do not deem it 
necessary to make any more elaborate summary of the act 
and of its 1923, 1925 and 1926 amendments. 

Section 20 was first enacted by the General Court as 
St. 1902, c. 495, § 5. Section 27 was first enacted by the 
General Court as chapter 103 of the Resolves of 1911, and 
took effect in June of that year. 

By the Act of Congress of August 20, 1912, 37 Stat. 315, 
c. 308, the Federal Congress forbade the shipment from one 
State to another of any nursery stock imported into the 
United States without notifying the Secretary of Agricul- 
ture. By the Act of Congress of March 4, 1917, 39 Stat. 
1165, c. 179, the Federal Congress authorized the Secretary 
of Agriculture to quarantine any State when he should 
determine that such quarantine is necessary to prevent the 
spread of a dangerous plant disease or insect infestation 



ARTHUR K. READING, ATTORNEY-GENERAL. 239 

new to or not already widely prevalent or distributed within 
and tlii'oughout the United States. 

On March 1, 1926, the Supreme Court of the United States 
decided the case of Oregon-Washington Railroad & Naviga- 
tion Co. V. State of Washington, 270 U. S. 87. That action 
was a suit in equity begun by the State of Washington 
against the Oregon- Washington Company to restrain that 
company from transporting infected alfalfa from Idaho 
into Washington in violation of a quarantine established on 
September 17, 1921, by the Washington Director of Agri- 
culture under a Washington statute passed in 1921. The 
company defended the suit on the ground that the quaran- 
tine and the Washington statute were in contravention of 
the interstate commerce clause of the Federal Constitution 
and in conflict with the acts of Congress stated above. A 
majority of the court, in an opinion by Chief Justice Taft, 
decided, as I read the opinion in that case, the following 
points : — 

1. In the absence of action by Congress a State may, in 
the exercise of its police power, establish quarantines against 
infected plants or trees, in spite of the fact that such quar- 
antines necessarily affect interstate commerce. 

2. That the Washington statute and the action of the 
Director of Agriculture of that State created a genuine 
quarantine. 

3. That the exercise by a State of its pohce power of 
quarantine, in spite of its interfering with interstate com- 
merce, is permissible under the interstate commerce clause 
of the Federal Constitution, "subject to the paramount 
authority of Congress if it decides to assume control." 

4. That it is impossible to read the Act of Congress of 
August 20, 1912, as amended by the Act of March 4, 1917, 
without attributing to Congress the intention to take over 
to the Agricultural Department of the Federal government 
the care of the horticulture and agriculture of the States, 
so far as these may be affected injuriously by the transpor- 
tation in foreign and interstate commerce of anything which 



240 OPINIONS OF THE ATTORNEY-GENERAL. 

by reason of its character can convey disease to and injure 
trees, plants and crops. 

5. That in the relation of the States to the regulation of 
interstate commerce by Congress there are two fields : — 

(a) One in which the State cannot interfere at all, even 
in the silence of Congress ; and 

(b) One in which the State may exercise its poUce power 
until Congress has by affirmative legislation occupied the 
field by regulating interstate commerce and so necessarily 
has excluded State action. Quarantine is in the latter field. 

6. That when Congress has acted and occupied the field, 
as it has here, the power of the States to act is prevented or 
suspended. 

7. That pending the existing legislation of Congress as 
to quarantine, the statute of Washington on the subject 
cannot be given application. 

8. That the States may not act even in the absence of any 
action by the Secretary of Agriculture. 

9. That with the Federal law in force, State action is 
illegal and unwarranted. 

On April 13, 1926, the President approved a joint reso- 
lution of Congress further amending the Act of August 20, 
1912, as already amended by the Act of March 4, 1917, by 
providing that, until the Secretary of Agriculture shall have 
duly estabhshed a quarantine, nothing in the act shall be 
construed to prevent any State "from promulgating, enact- 
ing and enforcing" any quarantine prohibiting or restricting 
the transportation of any class of nursery stock, etc., into 
or through such State, and providing further that any 
nursery stock, etc., a quarantine with respect to which shall 
have been established by the Secretary of Agriculture, shall 
when transported into any State, in violation of such quar- 
antine, be subject to the operation and effect of the laws of 
that State enacted in the exercise of its poHce powers to 
the same extent and in the same manner as though it had 
been produced in that State. 

On the above facts I am of opinion that it will not be 



ARTHUR K. READING, ATTORNEY-GENERAL. 241 

necessary for the General Court to reenact the above- 
described sections of G. L., c. 126, and I will give you 
briefly my reasons. 

It was unquestionably within the poHce power of this 
Commonwealth to enact chapter 103 of the Resolves of 
1911 at the time it was enacted. Up to that time Congress 
had not occupied the field of plant quarantine with respect 
to interstate commerce. When, in 1917, the Congress did 
occupy that field the efficacy of the State law was sus- 
pended, and action by State officials under it was prevented, 
and if taken would have been illegal and unwarranted. 
But I do not think that the State statute was, by the Federal 
act of 1917, nullified. The facts and decision in the case 
of In Re Rahrer, 140 U. S. 545^ are of assistance in this 
connection. In the Rahrer case the Kansas Legislature had 
passed an act prohibiting the sale of intoxicating liquor, 
which by its terms was broad enough to apply to sales of 
imported liquor in original packages. At that time the 
Federal law was that a State could not interfere with sales 
of imported Hquor in original packages. On August 8, • 
1890, there went into effect an Act of Congress which pro- 
vided, in substance, that intoxicating liquor transported 
into a State should, upon arrival therein, become subject 
to the operation and effect of the laws of that State as though 
it had been produced there, even though it was still in the 
original package. In July, 1890, a carload of intoxicating 
Hquor was shipped from Missouri to Rahrer in Kansas. 
On August 9, 1890, Rahrer sold a part of that Hquor, still 
in the original package. For that sale he was arrested by 
a Kansas sheriff, and he applied to a Federal court for a 
writ of habeas corpus. By appeal his case went to the 
Supreme Court, which, by a majority decision written by 
Chief Justice Fuller, decided adversely to Rahrer. In the 
course of the opinion the court used the following language : — ■ 

This (the Kansas prohibitory statute) is not a case of a law enacted in 
the unauthorized exercise of a power exclusively confided to Congress, 
but of a law which it was competent for the state to pass, but which could 



242 



OPINIONS OF THE ATTORNEY-GENERAL. 



not operate upon articles occupying a certain situation until the passage 
of the act of Congress. That act in terms removed the obstacle, and we 
perceive no adequate ground for adjudging that a reenactment of the 
state law was required before it could have the effect upon imported 
which it had always had upon domestic property. 

In Re Rahrer has been followed in First National Bank in 
St. Louis V. Buder, 8 Fed. (2d) 883, 885, and in Missouri 
Pacific R.R. Co. v. Boone, 270 U. S. 466. 

On the approval, on April 13, 1926, by the President of 
the joint resolution of Congress, the Federal obstacle to the 
efficacy of a Massachusetts quarantine on plants in inter- 
state commerce was removed, and thereupon the Massa- 
chusetts statute (and the powers of Massachusetts officials 
to act under it) became again in full force and effect. 



Taxation — Corporate Excess — Excise. 

Classification of corporations for the purpose of taxation may not be made in an 
unreasonable manner. 



To the Joint 
Committee on 
Taxation. 

1927 
February 3. 



You have asked my opinion as to the legality and con- 
stitutionality, if enacted into law, of House Bill No. 506, 
entitled '^An Act relative to the taxation of business cor- 
porations." 

This act, by amendment of G, L., c. 63, as previously 
amended, makes certain changes in the manner of ascer- 
taining and determining the "corporate excess" of business 
corporations for the purpose of taxation and the levying of 
excise taxes upon such corporations. 

These changes, in brief, consist for the most part in pro- 
viding that such corporate excess shall be the fair value of 
capital stock on the last day of the taxable year, as deter- 
mined by G. L., c. 63, § 30, par. 6, instead of on the first 
day of April, and in determining that the surplus and un- 
divided profits shall be included when estimating the value 
of the capital stock. This manner of estimating is rather a 
declaration of the manner as substantially in use at the 



ARTHUR K. READING, ATTORNEY-GENERAL. 243 

present time, rather than an adoption of any radical de- 
parture from the existing practice. These changes and 
others, such as that made in G. L., c. 57, bring the provisions 
of the statute into harmony, and as to these there does not 
appear to be any illegaUty or unconstitutionaHty. 

A change of a different character is made in the existing 
law by the clause placed by the proposed act at the end of 
section 31, namely: 

No debt shall be considered which arises or is allowed to remain as a 
medium whereby the parent or affiliated corporation supplies any such 
corporation with the capital reasonably necessary to carry on or continue 
business. 

The practical application of this provision, applied as an 
exception to the general deductions to be made from the 
corporate excess of a domestic or foreign corporation for 
the purpose of determining the amount of a tax, would 
result in such a distinction being made between corporations 
of the same general class as would work an improper and 
unreasonable discrimination among them. For example, 
one corporation might borrow money from an individual or 
from a bank for the purpose of enabling it to continue in 
business without the necessity of a sale of capital stock, and 
such corporation would be entitled to have the amount of 
such debt deducted from the fair value of its capital stock 
in determining the amount of its tax, whereas another 
corporation borrowing a similar amount of money for a 
similar purpose from a parent or affiliated corporation 
would not be entitled to a hke deduction. A classification 
of corporations, for the purpose of ascertaining the amount of 
a tax, into those which borrow from parent or affiliated 
corporations and those which borrow from individuals, 
partnerships or unaffiliated corporations is not a reasonable 
mode of classification. 

While the Legislature possesses a very wide measure of 
discretion in making classifications of individuals and cor- 
porations for purposes of taxation, nevertheless, such 



244 OPINIONS OF THE ATTORNEY-GENERAL. 

classifications must not be arbitrary or unreasonable, and 
discriminations may not be made in tax statutes between 
persons or corporations in substantially like situations. 

Though taxation is to a very great degree a matter of 
pubhc poUcy and the determinations of the Legislature with 
relation thereto not to be lightly treated, yet the principle 
of equality of protection of the law cannot constitutionally 
be disregarded. While the matter is not entirely free from 
doubt, I am of the opinion that the enactment into law of 
the proposed clause of section 31 under consideration would 
be unconstitutional, as a violation of the Fourteenth Amend- 
ment to the Constitution of the United States. 



Board of Examiners of Plumbers — Licenses — Rules. 

If the holder of a license as a master plumber does not renew it on or before May 1st 

in any year, a renewal thereof may not issue subsequently. 
The approval of rules of the Board by the Department of Public Health is essential 

to their validity, but the rules may be revised without such approval, upon 

petition of a local board of health. 
A master plumber's license may not be loaned to another by the person to whom it is 

issued. 
A duly licensed journeyman plumber may engage in the plumbing business if he 

does not employ other journeyman plumbers to assist him. 
A corporation may not have as one of its employees, for the purpose of enabling 

it to receive plumbing permits, a master plumber. 

tor o^ R^gls-''" ^' Yo\i have asked my opinion as to whether it is illegal 
*'"'**J927 for the Board of Examiners of Plumbers to issue a renewal 

February 17. liceusc on May 2nd, and if so, whether another examination 
is required. 

G. L., c. 142, § 6, provides: — 

Licenses shall be issued for one year and may be renewed annually 
on or before May first upon payment of the required fee. 

A Ucense under the above chapter is a permit to engage in 
the plumbing business only during the term of the license 
(which must be for one year) and renewals thereof. There 
is no authority permitting an extension of the original 
license except in so far as the statute states that it may be 



ARTHUR K. READING, ATTORNEY-GENERAL. 245 

renewed annually on or before May 1st upon payment of 
the required fee. If the holder of the license does not renew 
it on or before that date, it is my opinion that the Board 
may not issue a renewal thereof subsequent to that date. 

I am further of the opinion that if a person holding a 
license under this chapter and the amendments thereto does 
not procure a renewal thereof on or before May 1st, he must 
be treated as a new applicant and submit to the same 
requirements and examinations as a person who has never 
had a license. 

2. In the third question of your letter you ask whether 
or not St. 1909, c. 536, § 2, has been repealed, whereby it is 
not necessary to have the approval of the State Board of 
Health (now the Department of Public Health) of such 
rules as are made by the Examiners under the authority 
of that section. 

This section has been repealed by G. L., c. 282. G. L., 
c. 142, § 4, however, provides : — 

The examiners may make such rules as they deem necessary for the 
proper performance of their duties, which shall take effect when approved 
by the department of public health. 

In my opinion, therefore, the approval by the Depart- 
ment of Public Health is necessary to the validity of any 
rule made by the Examiners. 

3. In the sixth question of your letter you ask whether 
or not a master plumber's license can be loaned to another 
to conduct a plumbing business, and if not, how this prac- 
tice can be stopped. 

A master plumber's hcense is a permit issued by the State 
Examiners of Plumbers authorizing the licensee to engage 
in the business of a master plumber. Such license is issued 
only to applicants who successfully pass an examination as 
prescribed by G. L., c. 142, § 4. Pubhc safety and health 
require that only such persons as are competent to perform 
the work secure a license, and obviously it can be exercised 
only by those persons who meet the standard and require- 



246 OPINIONS OF THE ATTORNEY-GENERAL. 

merits of the Examiners. It is the clear intent of the Legis- 
lature that such a permit or hcense shall be used and exer- 
cised only by the Hcensee, and shall not be loaned or in any 
way transferred to another person. Unless this were so, 
the very evils and perils which the Legislature sought to 
avert by subjecting the applicant to an examination before 
granting him a license would still persist. I am of the 
opinion, therefore, that a master plumber's license may not 
be loaned to another to conduct a plumbing business. 

As to how this practice, if it is prevalent, can be stopped, 
I respectfully suggest that this is a matter for your depart- 
ment to regulate and control. It seems to have the char- 
acter and aspect of an administrative problem rather than 
of a legal problem, and I do not believe that it is within the 
scope of this Department to make recommendations or 
suggestions of this character. 

4. In the seventh question of your letter you ask whether 
or not a journeyman plumber may engage in the business of 
plumbing and advertise as such. 

I am of the opinion that a duly licensed journeyman 
plumber may engage in the business of plumbing to the 
extent that he has the right to work for himself and to take 
contracts for, or to do by his own labor, plumbing on build- 
ings, but under the statutes he has no right to employ other 
journeyman plumbers to assist him in doing such work. 
Commonwealth v. McCarthy, 225 Mass. 192. I am of the 
opinion that he may lawfully advertise to the same extent 
that he may perform. 

5. In the eighth question of your letter you ask whether 
a corporation or company can employ a master plumber to 
enable it to receive plumbing permits. 

R. L., c. 103, §§1 and 2, provided for the issuance of such 
a license to a corporation, and stated that a license issued 
to the manager of a corporation was sufficient compliance 
with that chapter. R. L., c. 103, §§ 1 and 2, are expressly 
repealed by G. L., c. 282. The present law, G. L., c. 142, 
makes no provision for a license to a corporation except in 



ARTHUR K. READING, ATTORNEY-GENERAL. 247 

SO far as the word "person" applies to corporations as well 
as to individuals. That part of R. L., c. 103, which pro- 
vides that a Ucense issued to a manager of a corporation 
satisfies the requirements of the chapter is also omitted from 
G. L., c. 142, These omissions are significant in that the 
present act not only fails to provide for the issuing of a 
Ucense to a corporation but also fails to indicate what 
member of the corporation shall take the examination and 
receive the license. 

There is, therefore, no method under the present law 
whereby a corporation may engage in the plumbing busi- 
ness, and it follows, in my opinion, that a corporation may 
not have as one of its employees a master plumber for the 
purpose of enabling it to receive plumbing permits. 

6. In the twelfth question of your letter you ask whether 
your Board can change or amend plumbing rules made 
under the provisions of St. 1909, c. 536, § 5, and if so, 
whether they must be approved by any one. 

St. 1909, c. 536, § 5, was repealed by G. L., c. 282. G. L., 
c. 142, § 8, provides : — 

Upon petition of the board of health of any town which has not pre- 
scribed regulations relative to plumbing under section thirteen or cor- 
responding provisions of earher laws, the examiners shall formulate 
rules relative to the construction, alteration, repair and inspection of all 
plumbing work within such town, which rules, when approved by the 
department of public health and accepted by the said board of health 
and published once a week for three consecutive weeks in some news- 
paper published in said town, shall have the force of law. Such rules 
may be revised by the examiners upon the petition of the board of health. 

Under this section it is clear that the Examiners may 
revise the rules described therein, and it is my opinion that 
the approval of the Department of PubUc Health is not 
necessary to such revision. The approval of the Depart- 
ment of Public Health is necessary to such rules as are 
formulated by the Examiners, but as to such rules as are 
revised no approval is necessary. 

It may be difficult in some cases to determine whether a 



248 



OPINIONS OF THE ATTORNEY-GENERAL. 



purported revision is in fact a revision of an existing rule 
or a formulating of a new rule, but each case as it arises 
must be governed and determined by the particular cir- 
cumstances surrounding it. 



State Teachers' Retirement Association 
MENT Fund — Beneficiaries. 



Retire- 



A regulation of the Teachers' Retirement Board prohibiting members from designat- 
ing beneficiaries who are to receive a payment only in the event of the death of 
other named beneficiaries is not improper. 



You have asked my opinion as to whether or not your 



To the Teach- 
ers Retirement 

®°^it27 Board had the right to make the following regulation, which 

e ruajy 24. ^^^ have prcvlously established : — 



A member shall not be permitted to provide that the amount due his 
estate from the retirement fund shall be divided and paid to two or more 
beneficiaries, nor shall a member be permitted to provide for payment to 
one beneficiary, with the additional provision that in the event of the death 
of the named beneficiary, the payment shall be made to a second bene- 
ficiary. 

You advise me that your request for my opinion had the 
sanction, and was made at the request, of the Commissioner 
of Education, who is at the present time away from the city 
on official business, and for that reason the letter of request 
was not signed by him but by the secretary of your Board. 
Under these peculiar circumstances I am complying with 
your request and give my opinion to your Board. 

G. L., c. 32, § 11, as amended by other acts and by St. 
1926, c. 212, provides: — 

(5) All sums due the estate of a deceased member from the annuity 
and pension funds of the association shall be paid to such beneficiary as he 
shall have named in writing on a form furnished by the board and filed 
with the board, properly executed, prior to his death, and such payment 
shall be a bar to recovery by any other person; provided, that if there be 
no named beneficiary surviving the deceased member, the amount due the 
estate shall be paid in accordance with section thirty-three. A member 
may at any time revoke or change the designation of a beneficiary by a 



ARTHUR K. READING, ATTORNEY-GENERAL. 249 

written instrument duly executed by him and filed with the board prior 
to his death, the form for this purpose to be furnished by the board. 

The language of the foregoing statute does not indicate 
any intention on the part of the Legislature that a member 
of the State Teachers' Retirement Association should be 
entitled to the privilege of naming more than a single bene- 
ficiary to receive the benefits accruing by virtue of his 
membership in the retirement system after his death. 
Changes in the beneficiary are permissible, but not more 
than one person at any given time may stand in such relation 
to a member and to the association. The words used in the 
statute relative to the beneficiary referred to therein are 
such as indicate provision for only one individual at a time 
in such capacity. My opinion in this respect is confirmed 
by reference to other parts of G. L., c. 32, as amended, more 
particularly section 5, as amended by St. 1925, c. 244, where 
a similar intent to limit the privilege of naming beneficiaries 
of other classes of persons subject to the terms of the same 
statute is plainly shown. Your Board has authority to 
make regulations for the management of the teachers' re- 
tirement system not inconsistent with law, and I am of the 
opinion that the regulation which you have laid before me 
is such as may be established within the authority of the 
Board. 



Division of Highways — Alteration — "Cut-off" Line. 

An alteration in a State highway is the substitution of one way for another, and its 
character is not necessarily changed by the fact that it calls for the construc- 
tion of a "cut-off" line one and one-half miles in length. 

You request my opinion as to whether your department TotheCom- 

*^ ./J. missioner of 

has power to proceed under G. L., c. 81, § 6 (St. 1921, c. 446), Pubii^c works 
in straightening an existing State highway by constructing a February 25. 
"cut-off" line running practically one and one-half miles in 
length and at a variable distance of about 500 feet from the 
old line. 



250 OPINIONS OF THE ATTORNEY-GENERAL. 

G. L., c. 81, § 6, as amended by St. 1921, c. 446, reads as 
follows: — 

The division may alter the location of a state highway in a city or town 
by filing a plan thereof and a certificate that the division has laid out and 
taken charge of said state highway, as altered in accordance with said 
plan, in the office of the county commissioners for the county where said 
highway is situated, and by filing a copy of the plan or location as altered 
in the office of the clerk of such city or town. 

I understand that the proposed new line will be merely 
a part of the same highway of which the present line forms 
a part, that when constructed it will be used in substitution 
for the old Hne, which will be abandoned, and that both the 
old and the proposed new hne lie wholly within one town. 

The doubt in the matter arises from the fact that the 
proposed change involves the highway hne to a rather great 
extent. Must the making of such a change be held to be 
something more than to "alter" the location of the high- 
way? 

In my opinion, the department has power to proceed 
under the section of the statute above quoted. The ques- 
tion does not, I think, depend upon the number of feet 
involved in the change. "An 'alteration' ex vi termini 
means a change or substitution of one thing for another." 
Johnson v. Wyman, 9 Gray, 186, 189. "A technical altera- 
tion is the substitution of one way for another." Bigelow 
V. City Council of Worcester, 169 Mass. 390. See, also. Bliss 
V. Deerfield, 13 Pick. 102; Bennett v. Wellesley, 189 Mass. 
308; III Op. Atty. Gen. 113. 



To the Com- 
missioner of 
Agriculture. 

1927 
February 26. 



Reclamation Districts — Towns — Assessments. 

'Towns are not underwriters of the assessments of reclamation districts, and may 
not borrow money for the advance payment of such assessments. 

You have asked my opinion in connection with two 
matters pertaining to the reclamation service. 

1. In relation to the first matter referred to in your 



ARTHUR K. READING, ATTORNEY-GENERAL. 251 

communication, namely, the authority of towns to borrow 
money for the purpose of paying, in advance of collection, 
amounts assessed upon certain proprietors of land within 
their boundaries for the financing of the improvements of a 
reclamation district, governed by St. 1923, c. 457, as 
amended, I am constrained to advise you that towns possess 
no authority to borrow money for such a purpose. 

There is no specific authority given by any statute to 
towns to negotiate loans for such an object as that described 
in your communication. The creation of a reclamation 
district and the assessment upon individual proprietors 
therein of their proportionate shares of the expense incident 
thereto does not of itself create any debt upon the part of a 
town wherein such proprietors' land may lie, such as the 
town is required by legal obligation to discharge. It is pro- 
vided by St. 1923, c. 457, that towns shall collect the sums 
assessed upon individual proprietors and pay over the same 
to the district's treasurer. The manner of collecting the 
assessment is to be the same as that provided for the collec- 
tion of the town tax (G. L., c. 252, § 11, as amended by St. 
1923, c. 457, § 1), and it is to be noted that by G. L., c. 80, 
§ 4, it is provided "that the owners of the land assessed shall 
not be personally liable for the assessment thereon," but 
the relation of the town to the reclamation district, under the 
statute, is merely that of an agency for the purpose of effect- 
ing the necessary collection. The statute does not make the 
towns underwriters or insurers of the amount of the total 
assessment or of any part thereof. 

It follows as a necessary corollary of the foregoing con- 
siderations that a town is without power to borrow money 
to carry out such a scheme for the advance payment of the 
assessments made by the district as you have outlined in 
your communication. The duty of the towns is to collect 
the assessments certified to them, respectively, and to pay 
over such collections to the district. If the payments of 
the assessments are spread over a term of years by virtue of 
G. L., c. 80, § 13, the obligation of the town still remains 



252 OPINIONS OF THE ATTORNEY-GENERAL. 

the same, to collect by its collector of taxes the assessments 
when due and to pay such collections to the district. The 
duty of the town does not include the borrowing of money 
to pay advancements thereon to the district. 

2. The second matter set forth in your communication 
concerns the administration of a district established under 
G. L., c. 252, before its amendment. The statutory provi- 
sions with relation to such a district and the towns lying 
therein differ from those affecting towns in St. 1923, c. 457, 
as amended, hereinbefore considered, and are not subject 
thereto (St. 1923, c. 457, § 1). 

Under G. L., c. 252, the expense of contemplated improve- 
ments is to be apportioned by commissioners to, and paid 
for by, those towns, respectively, in which any of the land 
in the district which is to be improved may lie. Each town 
is required to pay the sum ascertained to be due from it, 
by its treasurer to the county wherein it hes, in equal annual 
installments, these installments to be collected by the town 
from its inhabitants in the same manner as town taxes, but 
by section 14 the amount to be paid to the town is to be 
divided by the assessors among the owners of the various 
parcels of land in the town actually benefited by the improve- 
ments of the district, and these owners, and not the tax- 
payers generally, are the ones from whom the collection 
is to be made by the town. These payments by the owners 
of the land beneficially affected are to be assessed as better- 
ments, under G. L., c. 80, and such payments may be ap- 
portioned or spread over a given succession of equal annual 
installments, and the payment by the town is likewise to be 
spread over a given number of years (G. L., c. 252, § 13). 
The particular questions upon which you desire my opinion 
in regard to this second matter are set forth in your com- 
munication as follows : — 

(a) Since only one town is concerned, can the district commissioners 
omit the hearing called for in the first sentence of section 13? This hear- 
ing is to determine only the portion to be paid by each town when more 
than one town is involved. 



ARTHUR K. READING, ATTORNEY-GENERAL. 253 

(b) Will there be any legal obstacle to prevent the assessors requesting 
the land owners to pay before March 31, and the town treasurer paying 
the amount so collected to the county? 

(c) Can the additional interest paid by the county on sums uncollected 
after March 31, as noted in (6), be charged against the owner who elects 
to wait for the regular fall assessment before paying? 

(d) Or will it be necessary to include in the assessment, interest on the 
county note from March 31 to December 31, and to abate for those pay- 
ing before March 31 their proportion of this interest? 

It is required by G. L., c. 252, § 13, that the commissioners 
shall determine what portions of the total expenses of the 
improvement are to be paid by each town in which any of 
the land lies, and the commissioners are required to return 
their award as to this to the drainage board, which in turn 
transmits copies to the towns, and any town aggrieved has 
an appeal to the courts. I am of the opinion that the above- 
noted provisions of section 13 are to be observed and should 
be complied with even if only a single town appears likely 
to be affected, and I therefore answer your question (a) in 
the negative. 

It is provided by said chapter 252 that the county com- 
missioners may vote to pay, in the first instance, the total 
expense of the proposed improvement, except such as is 
borne by the Commonwealth, and the county may borrow 
money for such purpose. The total expense incurred by the 
county, including the money advanced to the district and the 
interest or cost of borrowing the same, is ultimately to be 
repaid to the county by the towns where the improved land 
lies. The money may be collected by the towns from the 
individuals benefited, in the same manner as other similar 
betterments are assessed and collected. 

If the county commissioners have made a loan which 
expires on March 31, it might be advantageous if money 
were paid to them by the several towns, and, as a necessary 
preliminary, paid to the towns by the individuals ultimately 
benefited, on or before March 31. There can be no objec- 
tion to proper requests for such payments being made. I 
therefore answer your question (6) in the afl&rmative. 



254 OPINIONS OF THE ATTORNEY-GENERAL. 

Nevertheless, the assessments due the town from the indi- 
viduals in this matter are to be collected in the ordinary 
manner under the provisions of G. L., c. 80, § 4, and, as I 
assume from such facts as are set forth in your communica- 
tion that assessments of this character, like town taxes, are 
not required by vote or by-law of the town to be paid prior 
to October 15 (see G. L., c. 59, § 57), I am of the opinion that 
their collection by the town cannot be enforced prior to 
March 31, nor can individuals paying before March 31 
receive any benefit by reason thereof over other individuals 
who pay later but at a proper time, nor can such individuals 
so paying later be penalized for thus doing. If, therefore, 
the amount necessary to discharge the obligation of the 
county on March 31 is not voluntarily paid prior to that 
date, whatever new loan is necessary to be obtained by the 
county should be negotiated, and the expense or interest 
thereon added to the expense or interest of the original loan 
plus the amount of the principal will be the total expense 
which is to be paid by the towns, and by them collected 
from the individual proprietors by assessments made and 
collected in the usual course, so that the burden of the entire 
sum will fall equally upon all such proprietors by a proper 
allocation of the same. I therefore answer your questions 
(c) and (d) in the negative. 



Constitutional Law — Governor — Pardoning 
Power. 

Under the Constitution of the Commonwealth the power of pardoning cannot be 
shared with the Governor by the courts. 

Gove^rnor ^<^^ Tcqucst my opinlou as to the advisabiHty of a con- 

Febma^ry27. stltutloual amendment affecting the pardoning power of 

the Governor, as recommended in your address of this year 

to the two branches of the Legislature. 

Your recommendation is in the following form : — 



ARTHUR K. READING, ATTORNEY-GENERAL. 255 

Authority to Grant Respites. 

At present it occasionally happens in capital cases, after the courts have 
set the period within which the sentence pronounced by them shall be 
carried out, that hearings on exceptions or other court proceedings neces- 
sitate postponing the execution of the sentence. Strangely enough, the 
courts themselves have no power of postponement in such cases, and were 
it not for the intervention of the Governor the accused might be executed 
before the courts had finally determined the questions of law presented. 
The Governor has nothing to do with court proceedings, and the state of 
the law which requires his intervention under these circumstances should 
not continue. The power of respite should at such times belong to the 
courts. I am informed that the necessary change can be brought about 
only by an amendment to the Constitution, 

I recommend that the necessary proceedings be instituted to place the 
courts in complete control of this matter. 

I believe that by statute the courts could be given addi- 
tional powers relative to staying and modifying sentences; 
and so far as the court should see fit to exercise such powers, 
if granted, the Governor would be reheved of the burden of 
passing upon petitions for respite. Such a statute might 
provide, in effect, that when, after sentence has been im- 
posed in a capital case, a motion for a new trial is made within 
the time allowed by law, the court which imposed sentence 
shall have power, in its discretion, until said motion is 
finally disposed of, to suspend and modify said sentence 
from time to time by refixing the date set for the execution 
thereof. But, without an amendment to the Constitution, 
by which the pardoning power is vested in the Governor, 
it is impossible "to place the courts in complete control of 
this matter." In my opinion, a constitutional amendment 
would be inadvisable. The people of this Commonwealth 
have for generations regarded the pardoning power of the 
Governor as a safeguard. An amendment impairing this 
power probably could not, and I think should not, be ob- 
tained. Moreover, as is stated in your address, the situation 
referred to occurs only "occasionally," and the question then 
presented, namely, whether respite should be granted 
pending the disposal of proceedings in court brought after 



256 OPINIONS OF THE ATTORNEY-GENERAL. 

sentence, is one regarding which the Governor might well 
rely largely upon the advice of the judges and the Attorney- 
General, and is one which in most cases should not be 
difficult of solution. 



March 3. 



State Boxing Commission — Licenses — Boxing 
Matches and Exhibitions. 

The State Boxing Commission is not required to perform the duties laid upon it 
by G. L., M. 147, except as to matches or exhibitions which are required to be 
hcensed. 

To the Com- You havc askcd my opinion as to the jurisdiction of the 

missioner oi ^ i o 

^"i927'^^*''*^' State Boxing Commission, which serves in the Department 
of Public Safety and of which the Commissioner of the said 
Department is, ex officio, chairman. You have directed my 
attention in particular to boxing matches held in clubs. 

G. L., c. 147, §§ 32-51, provide, in substance: (1) that no 
boxing or sparring match or exhibition for a prize or purse 
shall take place or be conducted, except a license therefor be 
granted by the State Boxing Commission; (2) that no box- 
ing or sparring match or exhibition at which an admission 
fee is charged shall take place or be conducted, except a 
Hcense therefor be granted by said Boxing Commission. 
A fee, to be established by the Commission within certain 
amounts and upon a basis set forth in section 32, is to ac- 
company the application for the license as to both classes, 
and there are provisions as to the giving of a bond. 

(1) The necessity for a license as a prerequisite to holding 
a boxing or sparring match or exhibition for a prize or purse 
under all conditions, irrespective of whether admission is or 
is not charged to spectators of the same, is absolute and with- 
out exception. Certain exceptions to the requirements 
relative to the prescribed license, which are set forth in the 
statute and which will be dealt wdth hereafter, are not 
apphcable to this class of matches or exhibitions. Whether 
a given event is a match or exhibition, whether it consists of 



ARTHUR K. READING, ATTORNEY-GENERAL. 257 

boxing or sparring, whether it is for a prize or purse are 
questions of fact, to be determined in the first instance by the 
Commission. 

(2) As to the second class of events for which a license is a 
prerequisite, they must, as a matter of fact, be matches or 
exhibitions, they must consist of boxing or sparring, and they 
must be ones at which an admission fee is charged. 

Section 32 provides, in substance, that the admission fee 
charged will be such as to bring the match within the re- 
quirement of the statute for a license, if it be charged "di- 
rectly or indirectly, in the form of dues or otherwise." 

The fee referred to in the statute is by its terms one for 
admission to a match. No evasion of the terms of the statute 
can be successfully accomphshed, as a matter of law, by call- 
ing, levying or applying the particular admission fee as dues 
to a club or organization. If, as a matter of fact, charges 
made to individuals attending are for admission to a match 
or exhibition, the bout falls within the class for which a 
license is necessary. Questions of fact, difficult of solution, 
may arise under various circumstances, but if payments, 
under whatever name, are made as a charge for admission 
to a match, that match is one requiring a license. 

Conditions under which club dues were charged specifi- 
cally upon members attending a match, for the purpose of 
giving them admission thereto, are described in some detail 
in Commonwealth v. Mack, 187 Mass. 441. In a case where 
a match is held by a club, for members only, as an unusual 
form of entertainment, dues being payable annually and 
without any relation to such match, it might be said, as a 
matter of fact, that no admission fee to the match is charged, 
either directly or indirectly in the form of dues or otherwise. 
In another instance members might pay annual dues to a 
club purporting to hold boxing matches from time to time, 
for club members only, with the understanding that the 
payment of such dues would entitle them to admission to 
matches to be held, and with that prospect as the compelling 
motive in joining the club and paying the dues, under cir- 



258 OPINIONS OF THE ATTORNEY-GENERAL. 

cumstances which, as a matter of fact, might make such 
dues constitute an indirect payment of an admission fee to 
a match or matches subsequently held; such match or 
matches would then be of such a character as to fall within 
the second class mentioned above, and would require to be 
licensed. The view that dues which are capable of classifica- 
tion under the provisions of section 32 must of necessity be 
dues paid with relation to an allocation to a particular match 
or matches and not as annual dues to a club or organization 
covering in general a variety of privileges, to which a match 
is only an occasional and unspecified addition, is confirmed 
by the provisions of section 40 with relation to payments to 
the State Treasurer from gross receipts of matches by li- 
censees. These provisions are obviously intended to relate 
to admission charges capable of allocation by reason of 
their manner of payment, even though indirect, to a particu- 
lar match. 

It is to be noted that by the last sentence of section 32 an 
exception is made among licensees conducting matches or 
exhibitions where admission is charged, in favor of those 
conducting amateur bouts. A special license without the 
requirement of a bond may be issued to them, whereas a 
bond is required of other licensees of this class. A special 
provision is made in section 46 permitting the granting of 
special permits to certain exhibitions of boxing where no 
decision is to be made, when provision is made for such 
permit by the rules and regulations of the Commission. 

Your request does not call for an expression of opinion 
as to the manner of performance of the various duties laid 
upon the State Boxing Commission by the pertinent sec- 
tions of chapter 147. Such duties are to be performed in 
connection with all boxing or sparring matches or exhibitions 
which by the terms of the statute are required to receive 
any of the kinds of licenses specified therein, in the manner 
and to the extent prescribed in sections 32 to 51, but the 
Commission is not required to perform such duties with 



ARTHUR K. READING, ATTORNEY-GENERAL. 259 

relation to any events other than those which must be 
hcensed, all of which have been noted herein. 

A boxing or sparring match or exhibition which is not for 
a prize or purse and for which no admission fee is charged, 
within the meaning of the phrase as outlined above, whether 
it be for a decision or not, does not require the grant of a 
license as a prerequisite to its being held, and the authority 
of the Commission does not extend to such a match or exhi- 
bition, nor do the provisions of sections 32 to 51 apply 
thereto. In the absence of rules and regulations made by 
the Commission under section 46, which I am advised do 
not exist, no license is required for the particular form of 
boxing exhibition described in its provisions. 



March 7. 



Board of Dental Examiners — Graduates of Dental 
Colleges — Examinations. 

The Board of Dental Examiners is required to examine graduates of foreign dental 

colleges. 

You have asked my opinion as to whether the Board of toro^R^gis-' 
Dental Examiners is required, under G. L., c. 112, § 45, to *™i92?' 
examine graduates of all reputable dental colleges, whether 
within the United States or of foreign countries, with par- 
ticular reference to graduates of dental colleges of foreign 
countries which refuse to examine graduates of reputable 
dental colleges within the United States. 

If an applicant otherwise satisfies and conforms to the 
provisions of G. L., c. 112, and amendments thereto, the 
mere fact that he is a graduate of a reputable dental college 
of a foreign country which refuses to examine graduates of 
reputable dental colleges of the United States does not 
justify the Board in refusing to examine him. Section 45 
of said chapter states : — 

Any such applicant twenty-one years or over and of good moral charac- 
ter who shall furnish the board with satisfactory proof that he has received 
a diploma from the faculty of a reputable dental college as defined in the 



260 OPINIONS OF THE ATTORNEY-GENERAL. 

following section shall, upon payment of twenty-five dollars, be entitled 
to be examined by the board. 

Section 46 of said chapter, as amended by St. 1926, c. 215, 
sets no limitation or restriction based upon the location of 
the dental college. 

G. L., c. 112, § 48, provides for the registration without 
examination of a dentist who has been lawfully in practice 
for at least five years in another State, provided that such 
other State shall require a degree of competency equal to 
that required of applicants registered in this Common- 
wealth. This section is amended by St. 1922, c. 221, which 
adds a further proviso that the dentist must have practiced 
in a State which extends a hke courtesy to dentists registered 
in this Commonwealth. 

In view of the fact that the language in sections 45 and 
46, above referred to, is mandatory and makes no excep- 
tions based upon the location of the dental college, and in 
view of the fact that the Legislature, by the amendment to 
section 48 above referred to, added a proviso restricting the 
application of that section to such States as extend a hke 
courtesy to dentists registered in this Commonwealth, but 
did not so restrict or limit section 45, I am of the opinion 
that the Board of Dental Examiners is required to examine 
graduates of all reputable dental colleges, whether within 
the United States or of foreign countries, provided such 
applicants otherwise comply with, and conform to, the 
requirements of the law. 



arthur k. reading, attorney-general. 261 

Secretary of the Commonwealth — Ballot — 
Question for Voters. 

If a question proper to be submitted to voters of a city at a certain annual election 
is not placed upon the ballot at such election, it may not be submitted at a 
later time. 

You have submitted to me copies of certain correspond- Jecreury. 
ence had between your office and certain officials and others Ma?ch^i2. 
in the city of Lowell, and you request my opinion upon the 
question whether the official ballot for use in the city of 
Lowell at the annual State election held November 2, 1920, 
should have had placed upon it the question of the accept- 
ance by that city of St. 1920, c. 166, entitled "An Act to 
provide for one day off in every eight days for certain poUce 
officers." 

This act, the tenor of which is for present purposes suffi- 
ciently indicated by its title, contained the following pro- 
visions with respect to its application to the various cities 
and towns and with respect to its submission to the voters 
in such cities and towns for acceptance. 

St. 1920, c. 166, §§ 4 and 5, are as follows: — 

Section 4. This act shall not apply to the police force of the city of 
Boston nor to the police force of the metropolitan district commission, nor 
to any city or town already granting one day off in eight to the members of 
its police department. 

Section 5. This act shall be submitted to the voters of every city and 
town to which it is applicable at the annual state election in the current 
year, and shall take effect in any such city or town upon its acceptance by a 
majority of the voters voting thereon; otherwise it shall not take effect. 
The act shall be submitted in the form of the following question to be 
placed upon the official ballot: — "Shall chapter of the 

acts of nineteen hundred and twenty which authorizes the granting of 
one day off in every eight days to police officers without loss of pay, be 
accepted by this city (or town)?" 

As I gather the situation from the correspondence sub- 
mitted by you, your predecessor in office refrained from 
placing this question upon the ballot for use in the city of 
Lowell because of a communication received by him from 



262 OPINIONS OF THE ATTORNEY-GENERAL. 

the city clerk, advising him that on September 30, 1920, 
which date was subsequent to the passage of the statute 
but prior to the annual State election of that year, the coun- 
cil of the city of Lowell voted to direct the commissioner of 
public safety to grant the members of the Lowell poUce 
department one day off in eight. Apparently he assumed 
that the exemption from the operation of the act given by 
section 4 to cities and towns "already" granting one day 
off in eight to the members of its police department was 
available to any city or town which should grant this 
privilege to its police force at any time prior to the date 
when the preparation of the ballots had finally to be com- 
pleted. 

The language in St. 1920, c. 166, itself, seems to cast 
considerable doubt upon the soundness of this construction. 
The word "already" is found in that portion of the statute 
under which the cities and towns in which the act is to be 
submitted for acceptance are determined, and is, therefore, 
in the portion of the statute which takes effect without 
acceptance, and speaks from the date of such taking effect. 
The vote of the city council was passed a number of months 
after the statute, in this aspect, went into effect. To speak 
of a state of affairs created by a vote had at a subsequent 
date as having been "already" in existence at a prior date 
is not in accordance with the common use of the language. 

However that may be, it seems to me clear that the 
annual State election in 1920 having -gone by without the 
submission of this act to the voters in the city of Lowell for 
acceptance, there is no authority for a late submission, and 
that the question whether the judgment of your predecessor 
was sound is not a question upon which any practical con- 
sequences in the administration of your office now attend. 
I therefore do not feel that it is a question upon which I 
am called upon to arrive at a definite conclusion. 



arthur k. reading, attorney-general. 263 

State' Fire Marshal — Storage of Gasoline — Appeal. 

The State Fire Marshal has authority to entertain an appeal from a decision of the 
board of license commissioners of Quincy refusing a license for the storage of 



You have requested my opinion whether the State Fire m?8si fneA"^' 
Marshal may, under G. L., c. 148, § 45, entertain an appeal 1927 

'' ' ' 707 X r- March 15. 

from a decision of the board of Ucense commissioners of — 
Quincy refusing a Hcense for the keeping, storage and sale 
of gasohne. 

The board of license commissioners of the city of Quincy 
was estabhshed by St. 1920, c. 70, sections 1, 2 and 4 of 
which are as follows : — 

Section 1 . There is hereby estabhshed in the city of Quincy a board 
of Ucense commissioners to consist of the city clerk of the city and the chiefs 
of the police and fire departments all of whom shall serve without extra 
compensation. 

Section 2. All authority to grant licenses and permits and, except 
as is hereinafter provided, to suspend and revoke the same, now or here- 
after vested by law in the mayor and city council of said city or in the 
mayors and city councils and boards of aldermen of cities of the common- 
wealth, except the authority to grant licenses for the sale and transporta- 
tion of intoxicating liquors and permits to public service corporations for 
locations in the streets and ways of the city for any purpose, shall here- 
after be exercised exclusively by said board of license commissioners: 
provided, that nothing herein shall affect the authority of the director of 
the division of fire prevention of the department of public safety succeed- 
ing to the powers of the fire prevention commissioner for the metropolitan 
district. 

Section 4. The city council of said city shall retain all authority 
which it now possesses or which is hereafter granted to it, or to cities gen- 
erally, to establish ordinances relating to the manner in which the holder 
of any such license or permit may exercise the rights granted thereunder. 
The board of license commissioners shall not estabUsh any rules or regula- 
tions relating to licenses or permits inconsistent with the provisions of 
any law of the commonwealth or any ordinance of the city of Quincy. 

The powers of the Fire Marshal in the premises are 
derived from G. L., c. 148, §§ 30, 31 and 45, which are as 
follows: — 



264 OPINIONS OF THE ATTORNEY-GENERAL. 

Section 30. The marshal shall have within the metropolitan district 
the powers given by sections ten, thirteen, fourteen, twenty, twenty-one 
and twenty-two to license persons or premises, or to grant permits for, or 
to inspect or regulate, the keeping, storage, use, manufacture, sale, han- 
dling, transportation or other disposition of gunpowder, dynamite, nitro- 
glycerine, camphine or any similar fluids or compounds, crude petroleum 
or any of its products, or any explosive or inflammable fluids or compounds, 
tablets, torpedoes, rockets, toy pistols, fireworks, firecrackers, or any other 
explosives, and the use of engines and furnaces as described in section one 
hundred and fifteen of chapter one hundred and forty; provided, that the 
city council of a city or the selectmen of a town may disapprove the grant- 
ing of such a license or permit, and upon such disapproval the permit or 
license shall be refused. In Boston certificates of renewal of licenses as 
provided in section fourteen shall be filed annually for registration with 
the fire commissioner, accompanied by a fee of one dollar. 

Section 31. The marshal may delegate the granting and issuing of 
any licenses or permits authorized by sections thirty to fifty-one, inclusive, 
or the carrying out of any lawful rule, order or regulation of the depart- 
ment, or any inspection required under said sections, to the head of the 
fire department or to any other designated ofl&cer in any city or town in 
the metropolitan district. 

Section 45. The marshal shall hear and determine all appeals from 
the acts and decisions of the heads of fire departments and other persons 
acting or purporting to act under his authorit}^, done or made or purport- 
ing to be done or made under the provisions of section thirty to fifty-one, 
inclusive, and shall make all necessary and proper orders thereon. Any 
person aggrieved by any such action of the head of a fire department or 
other person may appeal to the marshal. 

The powers given to the Fire Marshal within the metro- 
pohtan district by G. L., c. 148, § 30, were originally taken 
away from the local authorities in the cities and towns 
and vested in the Fire Prevention Commissioner for the 
metropohtan district by St. 1914, c. 795, § 3. For a time 
thereafter local officers had no control over the granting of 
gasoline licenses, except as they might, by delegation under 
St. 1914, c. 795, § 4, exercise in the first instance the powers 
of the Fire Prevention Commissioner. By St. 1916, c. 138, 
however, a proviso was added as follows : — 



ARTHUR K. READING, ATTORNEY-GENERAL. 265 

Provided, however, that the mayor and city council of a city or the 
board of selectmen of a town may disapprove the granting of such a li- 
cense or permit, and upon such disapproval the permit or license shall be 
refused. 

This proviso is now found in G. L., c. 148, § 30. 

Prior to March 31, 1920, the outstanding delegation of 
power under what is now G. L., c. 148, § 31, was a delegation 
by the Fire Prevention Commissioner to the mayor and city 
council of Quincy of the power to grant or refuse gasoUne 
licenses. After March 31, 1920, there was in force a similar 
delegation running from the State Fire Marshal to the board 
of Ucense commissioners. 

If the effect of St. 1920, c. 70, was to transfer to the board 
of license commissioners the power of disapproval thereto- 
fore vested by Gen. St. 1916, c. 138, in the mayor and city 
council, the license commissioners, when they acted upon 
the license now in question, may be considered as having 
exercised two separate powers emanating from two distinct 
sources, — the power to grant or refuse, delegated to them 
by the Marshal, and the power to "disapprove," derived 
directly from the authority of the statutes. 

It is to be noted that these two powers differ with respect 
to the possibility of appeal. The exercise of the delegated 
power is always subject to appeal to the Fire Marshal under 
G. L., c. 148, § 45, while the exercise of the power of dis- 
approval, being a veto power intended as a local check upon 
the action of the Fire Marshal, is never subject to such an 
appeal. 

Strictly, it would be a sufficient answer to your question 
to say that the decision of the board of hcense commis- 
sioners, in its aspect as an exercise of the delegated power, is 
always subject to appeal, and that the Fire Marshal may 
entertain an appeal therefrom. But your inquiry is, as I 
understand it, really directed to the further question whether, 
upon such an appeal, the Marshal will not be bound by the 
decision of the local board if that decision, in another 
aspect, was a vaUd exercise of the power of "disapproval" 



266 OPINIONS OF THE ATTORNEY-GENERAL. 

under G. L., c. 148, such "disapproval" by the express 
words of the law compelUng the refusal of the hcense. 

It is therefore necessary to examine the provisions of St. 
1920, c. 70, quoted above, and upon such examination it is 
not wholly clear whether the power of "disapproval" was 
thereby transferred from the mayor and city council to the 
board of license commissioners or not. 

The authority which is purported to be transferred by 
St. 1920, c. 70, § 2, is the authority to "grant," "suspend" 
and "revoke," none of which terms appropriately describe 
the power of disapproval, which is a power to veto the 
granting of a license by that body in whom the power to 
"grant, suspend or revoke" is vested. 

In the second place, it is provided by that same section 
that — 

nothing herein shall affect the authority of the director of the division 
of fire prevention of the department of public safety succeeding to the 
powers of the fire prevention commissioner for the metropolitan district. 

This proviso clearly excludes from the operation of the act 
the authority derived by delegation from the Fire Preven- 
tion Commissioner (and later from the Fire Marshal) ; but 
it is also capable of being construed as excluding from the 
operation of the act the "authority" of the officer succeeding 
to the powers of the Fire Prevention Commissioner, in every 
aspect of that authority, including the limitation placed 
upon that authority by Gen. St. 1916, c. 138, conferring the 
power of disapproval upon the mayor and city council. 

It is true that it appears from St. 1920, c. 70, § 4, that 
the legislature adverted to the question of what powers, if 
any, were to be retained by the council, and, nevertheless, 
made no express provision that the power of disapproval 
should be so retained. Such a provision, however, might 
well have been deemed unnecessary after the proviso of 
section 2. 

On this state of things I am of the opinion that the power 
of disapproval under Gen. St. 1916, c. 138, and G. L., c. 148, 



ARTHUR K. REJADING, ATTORNEY-GENERAL. 267 

§ 30, remains in the city council of Quincy, and that the 
decision of the board of hcense commissioners cannot be 
deemed an exercise of that power. Consequently, not only 
has the Fire Marshal jurisdiction to entertain the appeal, 
but there is no outstanding disapproval of the granting of 
the license by any competent authority, so far as the deci- 
sion of the board goes or your letter discloses. 



Commissioner of State Aid and Pensions — Soldiers' 
Relief — Widow — Conflict of Laws. 

It is the duty of the Commissioner of State Aid and Pensions to recognize as valid a 
foreign divorce, in the absence of a judicial determination thereon in this 
Commonwealth. 

You have asked my opinion relative to the performance mLskTnfr"™" 
of your duties under G. L., c. 115, §§ 17 and 18, in connec- len'fioM'^ ^"'^ 
tion with the pajonent of soldiers' relief to a certain person iviirch^ie. 
claiming to be the widow of an officer in the Army of the 
United States in the World War. You have submitted to 
me certain statements of fact and the findings of a justice 
of the Superior Court made in a suit in equity, wherein 
the claimant was a party. You do not advise me whether 
an appeal is pending from such findings. The findings of 
the justice contain a determination of a great number of 
facts relative to the status of the claimant, and certain rul- 
ings of law applicable to her status under the laws of this 
Commonwealth. 

It is not the province of the Attorney-General to pass 
upon questions of fact. For the purpose of this opinion I 
assume that the facts relative to the status of the claimant, 
as found by the justice of the Superior Court, are true. I 
also assume from the statements in the letters submitted to 
me that the claimant has a legal settlement in the city of 
Fitchburg. I am also advised by the communications sub- 
mitted that another woman is at the present time receiving 
State aid or soldiers' relief and adjusted compensation from 
the United States as the widow of the deceased soldier. 



268 



OPINIONS OF THE ATTORNEY-GENERAL. 



Although upon the facts placed before me, as aforesaid, 
it may well be that the courts of this Commonwealth, in a 
proceeding before them where the direct issue as to the status 
of the claimant as the widow of the deceased soldier was 
presented for adjudication, would determine that she was 
such widow, yet, a divorce obtained from her by her husband 
in the State of Washington still stands. It does not devolve 
upon you, as an administrative official, to refuse to recognize 
such divorce as valid, and to treat the claimant as the 
deceased's widow for the purposes of soldiers' relief, as 
against the other woman who married the deceased subse- 
quent to such divorce, whom you have heretofore dealt 
with as the true widow and who is now, under your ruhngs, 
in receipt of aid. Pending a final decision by a court of this 
Commonwealth in a proceeding to determine the right of 
the claimant to the rehef which she seeks, you are justified 
in continuing to recognize the other woman as the widow of 
the deceased and in making no recommendation to the city 
of Fitchburg for soldiers' rehef for the claimant. 



Treasurer and Receiver General 
Probate — Fees. 



Registers of 



It is the duty of the Treasurer and Receiver General to institute proceedings against 
registers of probate to collect from them for the Commonwealth the amount 
of fees which have been collected by such registers, or which they were required 
by law to collect, from persons filing certain papers with them. 



To the Treas- 
urer and Re- 
ceiver Gen- 
eral. 

1927 
March 17. 



You have asked my opinion regarding your duties in 
relation to fees collected by registers of probate, which are 
required by law to be paid to you by such registers under 
St. 1926, c. 363. 

It is provided by G. L., c. 217, § 20, that — 

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



ARTHUR K. READING, ATTORNEY-GENERAL. 269 

Inasmuch as there are reciprocal duties upon the register of 
probate and yourself, on the part of the former to account 
for and pay over and on your part to receive the accounting 
and the payment of sums due from the register as designated 
by the statutes, it is proper for you to ascertain whether 
such accounts and payments are correct and are the full 
payments required to be made by the register to you, and if 
the payments are not correct the duty rests upon you, as 
the direct representative of the Commonwealth, which is 
the ultimate recipient of such payments, to institute proper 
proceedings to enforce full and complete payments by the 
register of the money due from him to the Commonwealth. 

By G. L., c. 217, § 12, registers of probate, upon their 
induction into office, are required to give bond to the 
Treasurer and Receiver General for the faithful performance 
of official duties, with sureties. This bond runs directly to 
you in your capacity as Treasurer, and may be sued upon 
by you as well as by your predecessors. If a register of pro- 
bate fails to pay over to you funds which he has actually 
collected as fees, you may bring an action against him upon 
his bond, in your own name for the benefit of the Com- 
monwealth, to recover the sums which he has illegally with- 
held. Furthermore, in a suit upon this bond, which is for 
the faithful performance of his duties, you may also seek to 
recover the amount of fees which a register should have 
collected from litigants, under the provisions of the appli- 
cable statutes, but which he refused or neglected so to col- 
lect and failed to indemnify the Commonwealth therefor. 

A register or clerk of courts who neglects or refuses to 
collect fees inuring to the benefit of the county or State, 
collection being required by law, or who extends credit to 
litigants for fees which they are required by law to pay, 
does so at his own peril as far as regards his liability for the 
amount of such fees to the sovereign body to which he is 
required himself to make payment, and a suit against a 
register upon his official bond, which in the instant case runs 
to you as Treasurer, is an appropriate mode of collecting 



270 OPINIONS OF THE ATTORNEY-GENERAL. 

sums so due. State v. Gideon, 158 Mo. 327; Sheibley v. 
Dixon County, 61 Neb. 409; Boettcher v. Lancaster County, 
74 Neb. 148; Cavender v. Cavender, 10 Fed. 828. See 
Clemens Electric Mfg. Co. v. Walton, 168 Mass. 304. 

It is not necessary that a public officer be specifically 
authorized by statute to bring suit upon a bond given to 
him by another officer, for he has an implied authority, 
as incident to his office, to bring all suits which the proper 
and faithful discharge of his official duties require. There 
may be other remedies open to you, but the suit upon the 
bond given by the register, which runs to you, would seem 
to be a simple and direct mode of procedure with which to 
obtain judicial determination of the questions involved 
and to seek the collection of funds which should have been 
paid over to you. By G. L., c. 35, § 45, provision is made 
for the examination of accounts and vouchers of registers 
of probate by the Director of Accounts of the Department 
of Corporations and Taxation, but whatever procedure 
may be open to such director against a register of probate 
whose accounts are incorrect, such procedure does not 
supersede your right to proceed by suit upon the register's 
bond. 

It then becomes necessary to consider, for your guidance, 
whether or not, upon the facts stated in your letter, such a 
default can be said to exist upon the part of a register of 
probate, in the collection of fees required to be made by 
him, as would justify the institution by you of a suit against 
him upon his bond. It is to be borne in mind that it is not 
part of the duty of the Attorney-General to advise registers 
of probate, and that they are not bound by his opinion. 
Moreover, ultimate judicial interpretation must give the 
conclusive answer as to the question of precisely what 
fees are to be collected by registers of probate under St. 
1926, c. 363, § 2, amending G. L., c. 262, § 40, which reads 
as f oUows : — 



ARTHUR K. READING, ATTORNEY-GENERAL. 271 

The fees of registers of probate and insolvency, payable in advance 
by the petitioner or libellant, shall be as follows: — 

For the entry of a libel for divorce or for affirming or annulling marriage, 
five dollars. 

For the entry of a petition for the probate of a will, for administration 
on the estate of a person deceased intestate, of a petition under section 
thirty-five or thirty-six of chapter two hundred and nine by a husband or 
wife for authority to convey land as if sole, of a petition for partition, of 
a petition for change of name, of a petition for leave to carry on the busi- 
ness of the deceased, and for filing a representation of insolvency, and, 
except when the petition is certified by the register or assistant register to be 
incidental to proceedings already pending in the same county, for the entry 
of a petition for the appointment of a special administrator, conservator, 
trustee, receiver of the estate of an absentee, or of a guardian except when 
the petitioner certifies that the ward's estate does not exceed one hundred 
dollars, three dollars. 

For each certificate issued by the register, fifty cents. 

For copies of records or other papers in the charge of said registers at 
the rate of forty cents a page, except as otherwise provided by law. 

You direct my attention in your letter particularly to 
the clause in the third paragraph providing that "except 
when the petition is certified by the register or assistant 
register to be incidental to proceedings already pending in 
the same county," and have specifically requested my 
opinion relative to an interpretation thereof. Your ques- 
tions referring to this statutory exception are as follows : — 

First. — Does the exception apply to the entry of a petition for the 
appointment of a special administrator alone, or does it apply to all the 
other petitions thereafter mentioned? 

Second. — If it does apply to special administrators and all others 
thereafter, what is meant by the word "incideutal" used in the exception? 

Third. — If in any of these petitions, a previous petition has been filed 
upon which an entry fee has been paid and an appointment has been made, 
but the appointee has failed to qualify and another petition is filed, should 
there be a fee collected on the second petition? 

1. I answer your first question to the effect that the excep- 
tion referred to apphes to each and all of the petitions 
mentioned after the words "pending in the same county," 
in the third paragraph of said section 40, as amended. 

2. I answer your second question to the effect that the 



272 OPINIONS OF THE ATTORNEY-GENERAL. 

word "incidental" as used in said third paragraph means 
arising out of or in connection with the subject matter of 
another probate petition or proceeding previously com- 
menced in the same county. In other words, when a peti- 
tion for the appointment of a special administrator or a 
petition for the appointment of any one of the other officials 
mentioned thereafter in the third paragraph of section 40 
is filed, the duty devolves upon the register to determine 
whether or not such petition is incidental to some other 
probate proceeding already begun in the same county, and 
if he determines that it is so incidental, and certifies that 
to be the fact, no entry fee is to be paid; if he determines 
that it is not so incidental, a fee of three dollars is to be paid 
to him. 

The act of certifying is a ministerial act imposed on the 
register by law; it is not judicial or quasi-judicial in char- 
acter. It involves no employment of discretion but calls 
only for an examination of the files and a statement, under 
a correct interpretation of the law, as to existing conditions 
disclosed therein. 

3. Although the matter is not without some doubt, I am 
of the opinion that, under the facts stated in your third 
question, a second petition is so incidental to the proceed- 
ings already begun that a fee for the fifing thereof ought 
not to be exacted. Rule I of the Probate Court, to the effect 
that "each petition shall be considered a separate proceed- 
ing," does not affect a determination by the register under 
the provisions of the statute as to whether one of the desig- 
nated petitions is incidental to proceedings already pending. 
I am of the opinion that no right of appeal from the determi- 
nation of the register relative to certification of a petition 
as incident to a pending proceeding is vested in the State 
Treasurer, as such, but that, as I have pointed out, he may 
have recourse to a suit upon the register's bond, in a proper 
case, to recover from him the amount of moneys collected 
or which should have been collected as fees under said 
section 40 by the register. 



March 23. 



aethur k. reading, attorney-general. 273 

Motor Vehicles — Locomotive — Steam Shovel. 

A certain machine used as a steam shovel, self propelled and mounted on a railroad 
car, is neither a locomotive nor a motor vehicle, within the meaning of G. L., 
c. 146, § 46. 

You request my opinion as to whether or not, under i^ssiJ,n?r°^' 
G. L., c. 146, § 46, a certain machine and boiler may be ^^j^^^^^'^'y- 
classified as a locomotive or motor vehicle, and the facts 
which you give me are as follows: "A machine is under 
consideration at the present time, being a steam shovel 
mounted on a standard gauge railroad car and self propelled." 
In response to a request from this department for further 
information you add the following facts: ''Upon making 
inquiry as to whether or not this machine can continue for 
any great distance self propelled, I find that the machine 
is used solely to move under its own power for a short dis- 
tance while being used for purposes of excavation. When 
moved from one location to another, it is drawn away by a 
locomotive or other transportation." You then ask: "Is 
this machine to be considered a locomotive or a motor 
vehicle within the meaning of G. L., c. 146, § 46?" 

G. L., c. 146, § 46, provides: — 

No person shall have charge of or operate a steam boiler or engine or its 
appurtenances, except boilers and engines upon locomotives, motor ve- 
hicles, . . . unless he holds a license as hereinafter provided. 

R. L., c. 102, § 78, as amended, contained the same pro- 
vision as the above quotation, except that the words 
"motor road vehicles" were used instead of "motor vehicles." 

In an opinion of a former Attorney-General (IV Op. 
Atty. Gen. 19) with reference to R. L., c. 102, § 78, it was 
said : — 

Whether a person operating a boiler or engine is within the exception 
of the statute depends, by its very wording, upon whether it is upon a 
locomotive. There is no restriction as to the use of a locomotive in the 
enactment. The question whether it is a locomotive or not is determined 
by its design and its potentiality rather than by any use to which it may be 
temporarily applied. 



274 OPINIONS OF THE ATTORNEY-GENERAL. 

The term "motor vehicle" is defined by the statute (G. L., 
c. 90, § 1) as follows — 

"Motor vehicles," automobiles, motor cycles and all other vehicles pro- 
pelled by power other than muscular power, except railroad and railway 
cars and motor vehicles running only upon rails or tracks. 

In view of the facts which you have submitted to me, I 
am of the opinion that under G. L., c. 146, § 46, the machine 
you describe is neither a locomotive nor a motor vehicle. 



Boston Elevated Railway Company — Trustees — 
Term of Office. 

At the expiration of the ten-year period designated in Spec. St. 1918, c. 159, the 
Governor may appoint a board of trustees for the Boston Elevated Railway 
Company composed entirely of new members. 

Governor. You have asked my opinion "as to whether the terms of 

April 1. the trustees of the Boston Elevated Railway Company, or 

their successors, appointed by the Governor of the Com- 
monwealth under the provisions of Spec. St. 1918, c. 159, 
commonly called the Public Control Act, expire at the end 
of the ten-year period designated in the act, and if he then 
can appoint an entire new board of trustees." 

The pertinent portions of chapter 159, relating to the 
appointment and terms of office of such trustees, are as 
follows : — 

Section 1. The board of trustees of the Boston Elevated Railway 
Company is hereby created, to consist of five persons to be appointed by 
the governor, with the advice and consent of the council. The persons so 
appointed shall be sworn before entering upon the performance of their 
duties ; shall own no stock or other securities of the Boston Elevated Rail- 
way Company or of any company owned, leased or operated by it; shall 
serve for the term of ten years from the date when they assume the 
management of the company as hereinafter provided, and until their suc- 
cessors are duly appointed and qualified. ... In case of any vacancy 
in said board by reason of death, resignation or otherwise, the governor, 
by and with the consent of the council, shall fill the vacancy. The board 
shall designate one of the trustees so appointed to serve as chairman. 



ARTHUR K. READING, ATTORNEY-GENERAL. 275 

Any member of the board may be removed for cause by the governor, with 
the advice and consent of the council. 

If the pubUc management and operation of the railway system of the 
Boston Elevated Railway Company shall continue beyond the original 
period of ten years the governor shall, with the advice and consent of the 
council, at the expiration of each ten-year period during the continuance 
of public management and operation, appoint five successor trustees to 
serve for a period of ten years and until their successors are appointed and 
qualified, but not exceeding the period of public management and opera- 
tion. Said trustees shall assume the management and operation of the 
company's property on the first day of the month next following their ap- 
pointment and qualification. 

The term for which the original trustees were appointed 
was ten years from the date when they assumed the man- 
agement of the company. 

As regards persons appointed to fill vacancies in the board, 
there is no provision in the statute relative to such appoint- 
ments which prevents the application of the statutory rule 
embodied in R. L., c. 18, § 1, now in G. L., c. 30, § 10, that 
vacancies in the office of a member of a board shall be 
filled for the unexpired term. The terms of the last para- 
graph of section 1 indicate that there was no legislative 
intent to have vacancies in the board filled in any other 
manner, for it is expressly provided therein that at the 
expiration of each ten years of public management of the 
road the Governor shall appoint five successor trustees, the 
entire membership of the board being five. 

I am of the opinion that at the end of the ten-year period 
designated in the statute the Governor can appoint a board 
composed entirely of newly appointed trustees. 



276 opinions of the attorney-general. 

Board of Dental Examiners — Registration — 
Examination. 

The Board of Dental Examiners, with relation to registration and examination of 
applicants, can act only in accordance with statutory provisions and the rules 
and regulations prescribed for the proper conduct of its duties. 

To the Com- You ask i "Whether or not the Board of Dental Exam- 

missioner of 

^W27^*"^^''"'' iners has the right to suspend or revoke the Hcense of prac- 
Apni^s. ticing dentists of this Commonwealth, and if so, for what 

causes?" This is covered by G. L., c. 112, § 61, as amended 
by St. 1921, c. 478, § 1, wherein power is given to the Board 
of Dental Examiners to suspend or revoke licenses for 
causes which are set out at length therein; that is to say, 
if ''the holder of such certificate, registration, license or 
authority, is insane, or is guilty of deceit, malpractice, 
gross misconduct in the practise of his profession, or of any 
offence against the laws of the commonwealth relating 
thereto." 

You further ask: "Would it be illegal for the secretary 
of the Board of Dental Examiners to issue interne certi- 
ficates to candidates who are eligible to take the dental 
examination without calling a meeting of the full Board?" 
G. L., c. 112, as amended by St. 1921, c. 365, provides that 
"an applicant for limited registration" is required to "furnish 
the board with proof entitling him to be examined for 
registration," and that he may, "upon payment of five 
dollars, be registered by the board as a dental interne." 
It is further provided that "limited registration under this 
section may be revoked at any time by the board." From 
the wording of this section (G. L., c. 112, § 45A) it is evident 
that the Board must act, and its action be, in accordance 
with the regular practice under the laws of this Common- 
wealth and the rules and regulations for the proper conduct 
of its duties, prescribed by G. L., c. 112, § 43. The secre- 
tary of the Board of Dental Examiners would have no 
authority to issue such certificate except as the result of 
action taken by the Board. 

You fiuther ask: "Would it be illegal for the Board of 



ARTHUR K. READING, ATTORNEY-GENERAL. 277 

Dental Examiners to give an unofficial examination to a 
candidate who is within a short period of the legal age for 
examination, the Board withholding the certificate of 
registration until the candidate reaches the legal age?" 
G. L., c. 112, §45, states: 

Applications for registration hereunder shall be in writing upon blanks 
furnished by the board, which shall be signed and sworn to by the appli- 
cant, presenting proof of the requirements herein specified. Any such 
applicant twenty-one years or over and of good moral character who shall 
furnish the board with satisfactory proof that he has received a diploma 
from the faculty of a reputable dental college as defined in the following 
section, shall, upon payment of twenty-five dollars, be entitled to be 
examined by the board. 

There is no exception in said section whereby a person 
less than twenty-one years of age may be examined. 

Since an applicant for registration must be twenty-one 
years of age before he is entitled to file an application, and 
since an examination of said applicant, according to the 
terms of said section, is to be granted upon certain proof 
set out in said application, it follows that an applicant is 
not entitled under the law to an examination by said Board 
prior to arriving at the age when he is entitled to file an 
application. The Board of Dental Examiners, therefore, 
would be acting outside the scope of its powers in giving an 
unofficial examination of a candidate prior to his reaching 
the age which entitles him to apply for registration. 



Hours of Labor — Sunday Employment — Paper Mill. 

An employee whose duties do not specifically include work on Sunday other than 
caring for machinery in a manufacturing establishment may be employed on 
Sunday in duties designated by G. L., c. 149, § 50, even if this necessitates his 
working seven days a week. 

You have asked my opinion as to whether an employee TotheCom- 

^ '^ J- ./ missioner of 

in a paper mill may lawfully perform on Sunday the work du^rLr'^ '"' 
of' caring for machinery in an establishment, provided he Airif27. 
works therein on the other six days of the week. The 



278 OPINIONS OF THE ATTORNEY-GENERAL. 

statutes in question are sections 48 and 50 of G. L., c. 149. 
Section 47 of said chapter is not applicable to manufacturing 
or mercantile establishments. 

Section 48 of said chapter states : — 

Every employer of labor engaged in carrying on any manufacturing 
or mercantile establishment in the commonwealth shall allow every 
person, except those specified in section fifty, employed in such manu- 
facturing or mercantile establishment at least twenty-four consecutive 
hours of rest in every seven consecutive days. No employer shall operate 
any such manufacturing or mercantile establishment on Sunday unless 
he has complied with section fifty-one. Whoever violates this section 
shall be punished by a fine of fifty dollars. 

Section 50 states that section 48 shall not apply to 
employees whose duties include no work on Sunday other 
than caring for machinery. (There are other exceptions 
enumerated in this section which are not material to the 
issue presented.) 

Section 48, allowing twenty-four consecutive hours of 
rest in every seven consecutive days, by its own terms and 
by the terms of section 50, does not affect persons whose 
duties include no work on Sundays other than caring for 
machinery. It follows, therefore, clearly, in my opinion, 
that such an employee may work on Sunday at any of the 
duties set forth in section 50 without violating the law, even 
though he also works all other days of the week in the 
establishment. However, an employee who works in the 
establishment the other six days of the week may not do 
any work on Sunday, other than that specified in section 50, 
unless he is granted twenty-four consecutive hours of rest 
in every seven consecutive days. 



April 27. 



arthur k. reading, attorney-general. 279 

Public Health — Inspectors — Slaughtering. 

In cities, at least one inspector of animals should be a registered veterinary surgeon, 
but it is not necessary that one inspector of slaughtering in every city should 
be such a surgeon. 

You have asked my opinion as to whether the provision mi'ssioner"^' 
contained in G. L., c. 129, § 15, in relation to inspectors of .J927 "* 
animals, that "in cities at least one such inspector shall be a 
registered veterinary surgeon," apphes to inspectors of 
slaughtering, provided for by G. L., c. 94, § 128. 

G. L., c. 94, § 128, provides that inspectors of 
slaughtering — 

shall be appointed and compensated, and may be removed in the manner 
provided for inspectors of animals, under sections fifteen to seventeen, 
inclusive, of chapter one hundred and twenty-nine, except that with re- 
spect to such first named inspectors, local boards of health and the de- 
partment of public health shall perform the duties and exercise the au- 
thority imposed by said sections upon the aldermen or selectmen and 
upon the director of animal industry, respectively, as to inspectors of 
animals. 

G. L., c. 129, § 15, reads 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 ap- 
proved by the director. In cities at least one such inspector shall be a 
registered veterinary surgeon. 

This latter section deals specifically with inspectors of 
animals, a type of inspector whose duties are to some 
extent set forth in said chapter 129, and a different kind of 
inspector from the inspectors of slaughtering, whose duties 
are to a certain extent set forth in G. L., c. 94, §§ 118-128. 
That there is a distinction made in the statutes between 
the two classes of inspectors is apparent from the wording 
of said section 128, wherein inspectors of slaughtering are 
referred to as "said inspectors" and inspectors of animals 
are referred to specifically by name. 



280 OPINIONS OF THE ATTORNEY-GENERAL. 

While the inspectors of slaughtering are to be appointed, 
compensated and removed in the manner provided for 
inspectors of animals under G. L., c. 129, §§ 15-17, it does 
not follow that all the provisions of said section 15 are 
applicable to inspectors of slaughtering. The provision in 
section 15 that "one such inspector shall be a registered 
veterinary surgeon" applies specifically to the inspectors 
of animals mentioned by name in section 15, and the re- 
quirement as to one of their mmiber being a registered 
veterinary surgeon was not intended by the Legislature to 
be made applicable to inspectors of slaughtering by virtue 
of the provision for the appointment, compensation and 
removal of the latter kind of inspectors by reference to 
section 15. 

In brief, then, the provisions of the statutes require that 
in cities at least one inspector of animals, such as is provided 
for under said chapter 129, is to be a registered veterinary 
surgeon, and that it is not necessary that one inspector of 
slaughtering in every city where an appointment is made 
shall be a registered veterinary surgeon. 



Structures in Tidewater — Acushnet River — 
Licenses 

The provisions of G. L., c. 91, § 21, granting authority to exact compensation for 
tidewater displacement, are not limited by St. 1806, c. 18, relative to riparian 
owners on the Acushnet River. The boundary Une of the grant given to such 
owners by St. 1806, c. 18, is at the present time to be taken as the existing low- 
water mark. 

mLskfnS-"^" You have requested my opinion upon several questions 

PuHic Works. ^£ j^^ arising in connection with a certain petition for a 
-^ ■ license to construct bulkheads and make solid fillings in and 

over the tidewaters of Acushnet River in the city of New 
Bedford. You have transmitted to me with your com- 
munication various documents and data bearing upon 
the petitioner's title to riparian land, and relating to various 



ARTHUR K. READING, ATTORNEY-GENERAL. 281 

facts bearing upon the matter, and you have stated further 
facts in your letter. 

The specific questions which you ask in your communica- 
tion are as follows: 

1. Has the city of New Bedford, owing to the extension of North 
Street, any rights in the land under water. If so, can the Division issue 
a license for a structure which would cut off the city from its right of ap- 
proach to the harbor line? (G. L., c. 91, § 17.) 

2. If the rights in the land under water, 40 feet wide, in the continua- 
tion of North Street, do not belong to the city, do they belong to the 
owners of the adjoining piers, or do they remain in the Commonwealth? 

3. Do the provisions of the statute of 1806 prohibit the Division from 
making a charge for the displacement of tidewater under G. L., c. 91, § 21? 

4. Do the provisions of the statute of 1806 prevent the Governor and 
Council from fixing the proper compensation for the rights granted by the 
License in the lands of the Commonwealth under G. L., c. 91, § 22? 

You state that the petitioner, claiming to be a riparian 
proprietor on the tidewaters of the Acushnet River, asks 
for a license to erect a structure described in your letter, 
which on the facts as stated is, in my opinion, a pier or 
wharf and is not to be considered filled land on which 
structures may be erected. 

By virtue of St. 1806, c. 18, riparian owners on the tide- 
waters of the Acushnet River are authorized to erect wharves 
extending from their lots "to the channel of said river." 
St. 1806, c. 18, is to be considered in the nature of a grant of 
the right to erect wharves to the riparian owners, but this 
right is confined to areas directly in front of the riparian 
owner's land, and before such a license can be issued by the 
Commission it must be apparent that the petitioner for such 
license is the owner of the fee of the land in question. It 
appears from the data which you have submitted and from 
the facts as you have set them forth in your letter that the 
city of New Bedford, on or about September 8, 1787, laid 
out a way to the then high-water mark, and by later pro- 
ceedings extended the same to the present high-water mark 
over land which is now claimed by the petitioner. It can- 
not be ascertained with accuracy from such data whether 



282 OPINIONS OF THE ATTORNEY-GENERAL. 

the city, which was a town in 1787, acquired a fee in the 
strip so taken as a way, or whether it acquired merely an 
easement for highway purposes. It is probable that the 
latter right was all that was acquired by the city, and if so, 
it would not become a riparian owner within the meaning of 
St. 1806, c. 18, and the Commission would not be acting in 
derogation of any rights of the city in granting a license to 
the owner of the fee of the land over which the way was laid 
out. If, however, the city acquired a fee in the portion of 
land taken for the way, it would become a riparian pro- 
prietor and the Commission could not, under the provisions 
of G. L., c. 91, § 17, read in connection with St. 1806, c. 18, 
issue a license to any individual for the erection of a struc- 
ture which would be a continuation of the line of the city's 
taking. It would seem as if the establishment of the 
petitioner's title as against the city of New Bedford would 
be a matter to be determined judicially before action was 
taken upon the petition by the Commission. 

You also advise me that a claim is made by the owner of 
the land adjoining that of the petitioner, who has erected 
a wharf under license in front of its land, of a prescriptive 
right to use the waters on the side of its wharf toward the 
land claimed by the petitioner so freely as to exclude the 
petitioner from erecting a wharf in front of the land claimed 
by the petitioner, which is stated to be within a few feet of 
the existing wharf. I am of the opinion that no such pre- 
scriptive right has been acquired by the owner of the land 
adjoining that claimed by the petitioner which would pre- 
vent the licensing by the Commission of a wharf to be 
erected as specified in the petition. 

Assuming that title to the land occupied by the way is 
not in the city, it appeals from the facts stated in your letter 
and the data submitted, and from statements made to this 
Department by counsel for both owners, that the owner of 
the land adjoining that claimed by the petitioner, over 
which the said way extends, claims title to so much of said 
land as is occupied by the way extended, or a portion thereof, 



ARTHUR K. READING, ATTORNEY-GENERAL. 283 

as against the petitioner. It is impossible to ascertain from 
the facts stated, the data submitted or the statements of 
counsel which of these two owners, if either, actually has title 
to the fee in that portion of the land occupied by the way, 
as extended. As a prerequisite to a license to erect a wharf 
in front of so much of the land claimed by the petitioner as 
is disputed with relation to ownership, the petitioner is 
bound to establish a good title. It would seem that in the 
existing situation the question as to the ownership of the 
land in question was one for judicial determination, and 
that until it has been determined by some competent judicial 
tribunal that the petitioner is the sole owner thereof no li- 
cense in relation to a wharf to be erected in front of such 
land should be issued to it by the Commission. 

I think that the foregoing statements constitute a com- 
plete answer, so far as one may be given, to your first and 
second questions. 

Your third and fourth questions, in view of the foregoing 
answer to the first two questions, do not require an answer 
at the present time as far as they relate to land the title to 
which is not established as being in the petitioner, but they 
require an answer in view of the possibility of the issuance 
of a license by your Commission for a wharf in front of other 
riparian land of the petitioner adjoining the said way, as 
to which you state that the petitioner's title to the fee is 
not in dispute. 

In relation to your third question, St. 1806, c. 18, provides 
as follows: 

Section 1. That the owners and proprietors of lots of land adjoining 
Acushnet River, in the town of New Bedford, in the county of Bristol, 
between Clark's Point, so called, and the head of navigation in said river, 
their heirs and assigns, shall be, and hereby are authorized and empowered 
to erect, continue and maintain, wharves parallel with the line of their 
several lots, as they abut upon said river; said wharves to extend to the 
channel of said river, if the owners of said lots think proper; and each 
owner of said lot shall have authority to provide docks, or erect wharves, 
as aforesaid on the aforesaid extended portion of his said lot, in such way 



284 OPINIONS OF THE ATTORNEY-GENERAL. 

and manner as he may think proper, not exceeding the limits of said 
channel of said river. 

Section 2. That if at any time hereafter, it shall be made to appear 
to the satisfaction of the General Court of the Commonwealth of Massa- 
chusetts, that the erection, maintaining, or continuing said wharves or 
docks, mentioned in the first section of this act, operates any obstruction 
to the navigation of said river, or to the right of taking shell or other fish 
in said river, in that case the said General Court shall have a right, not- 
withstanding this act, to make such provisions respecting the naviga- 
tion of said river, and the right of taking said fish, as they may think the 
public interest requires. 

While the statute is to be construed as an irrevocable 
grant to the riparian owners of the right to erect wharves 
within the lines established by the statute (Bradford v. 
McQuesten, 182 Mass. 80; Hamlin v, Pairpoint Mfg. Co., 
141 Mass. 51), a reservation in the grant is contained in 
section 2, whereby the grant is made subject to future re- 
strictions which may be imposed by the Legislature "respect- 
ing the navigation of said river, ... as they (the General 
Court) may think the public interest requires." 

The provision of G. L., c. 91, § 21, granting authority to 
exact compensation for tidewater displacement, is a provi- 
sion which falls within the meaning of the reservation in 
the statute of 1806, relative to future restrictions respecting 
navigation of the river. The reservations embodied in 
section 2 make inapplicable to the instant case the opinion 
in Bradford v. McQuesten, supra, in so far as that opinion 
held that such compensation could not be exacted from the 
riparian proprietor whose rights were considered therein, 
for that owner's rights were established by St. 1851, c. 26, 
which did not contain any such reservations as does the 
statute of 1806. I therefore answer your third question in 
the negative. 

In relation to your fourth question, G. L., c. 91, § 22, 
provides for the payment of compensation to the Com- 
monwealth for the right granted under a license to drive 
piles or to fill land in tidal waters, the title to which land is 
in the Commonwealth. The compensation required to be 



ARTHUR K. READING, ATTORNEY-GENERAL. 285 

paid by this statute for the use of tidewater lands is not of 
a similar character to the compensation required by section 
21 for tidewater displacements. It does not bear such 
relation to the navigation of the river as to bring it within the 
reservation contained in St. 1806, c. 18, § 2. Compensation 
for tidewater displacement, in lieu of earlier provisions of 
law for excavation, is an enactment directly in respect to 
navigation, whereas compensation for the exercise of a license 
to drive piles or to fill land is not made directly in respect to 
navigation, and it cannot be imposed upon licensees driving 
piles or filhng land within the boundaries of the grant made 
them by St. 1806, c. 18. It becomes necessary, therefore, 
in this connection to determine what are the boundaries of 
the grant provided for in St. 1806, c. 18. It is provided in 
said chapter 18 that the riparian owners may "erect, con- 
tinue and maintain, wharves parallel with the line of their 
several lots, as they abut upon said river; said wharves to 
extend to the channel of said river." It has been held in a 
number of opinions of the Supreme Judicial Court that a 
conveyance to or a boundary by the channel line in flats 
over which the tide rises and falls and through which a tidal 
stream runs is in effect a boundary by the low-water mark. 
Ashby V. Eastern R.R. Co., 5 Met. 368; Tappan v. Boston 
Water Power Co., 157 Mass. 24. In the latter case the court, 
after reviewing earlier decisions, says : — 

There is no suggestion in these cases that a tidal channel, from which 
the tide ebbs and through which a fresh-water stream flows at low tide, 
will constitute a boundary to flats. . . . And we think it plain that a chan- 
nel to be a boundary to flats must be one from which the tide does not ebb 
at low water. 

Although an examination of the circumstances which 
surrounded the enactment of the statute of 1806 tends in 
some degree to show that in the use of the word "channel" 
in said statute the Legislature may have intended to signify 
the tidal channel itself rather than the low-water mark, yet 
such considerations are not sufficient to require an interpreta- 
tion of the words as used by the Legislature in this statute 



286 OPINIONS OF THE ATTORNEY-GENERAL. 

as having other than the meaning attached to such words 
in similar statutes by the court; and it follows that today 
the boundary line of the grant given to the riparian owners 
under St. 1806, c. 18, is low-water mark as it now exists. 
It will not be proper to fix compensation for use of the Com- 
monwealth's lands inside the present low-water mark, but 
such compensation may be fixed for the use of such lands 
beyond low-water mark, and I answer your fourth question 
in this manner. 



Banking — Co-operative Banks — Loans — Share- 
holders. 

The authority of a co-operative bank in respect to loans is limited by G. L., c. 170, 
170, § 12, and in making loans otherwise than in accordance with such limita- 
tions the officers of a co-operative bank are performing acts outside the scope 
of their authority which are not capable of ratification. 

To the Com- You have asked my opinion upon various questions, all 

imssioner of ^ x- r- i 7 

^f927^' of which relate to certain practices of co-operative banks in 

^^^^' connection with loans to shareholders. 

There are certain general considerations in connection 
with the law relating to co-operative banks, contained in 
G. L., c. 170, as amended, which must underlie the answers 
to your several questions. It is apparent from the language 
of G. L., c. 170, as amended, and the earlier statutes deal- 
ing with co-operative banking, that it was the intent of the 
Legislature, in providing for this form of banking, that it 
should not be conducted in the manner in which general 
commercial banking is carried on nor in the manner in which 
institutions for savings operate. The statute originally 
authorizing the formation of corporations to do a co-opera- 
tive form of banking, St. 1854, c. 454, provided in section 1 
that the purpose of the organization should be — 

Accumulating a fund to be lent on real estate security, or divided^among 
its members. 



ARTHUR K. READING, ATTORNEY-GENERAL. 287 

Section 4 provided : — 

Every such corporation shall lend its funds on real estate security only 
. . . and no loan shall be made to any person not a member. 

St. 1877, c. 224, and all subsequent statutes have stated 
the purposes of the corporation to be substantially those 
now set forth in G. L., c. 170, namely: — 

Accumulating the savings of its members in fixed periodical install- 
ments and loaning such accumulations — 

and every statute has Umited the number of shares in the 
banking association which any one individual might hold, 
and has limited the amount which might be loaned upon 
real estate security, to a given amount for each share held 
by a member of the corporation or association. 

It is apparent from the provisions of the statute that it 
was the intent of the Legislature, in so hmiting the number 
of shares which a member might hold and in limiting the 
amount which a member might borrow, to provide a form of 
banking which would encourage saving by persons of rela- 
tively small means, and would extend this privilege and the 
privilege of obtaining moderate-sized loans widely through- 
out the community among a class of persons not ordinarily 
engaging in large financial transactions. 

It has been said of co-operative banks by the Supreme 
Judicial Court : — 

They are not authorized to do a general banking business and their 
rights and powers are strictly limited for the protection and benefit of 
their members. 

G. L., c. 170, § 12, as amended, now provides as to a co- 
operative bank as follows : — 

The capital . . . shall be divided into shares of the ultimate value of 
two hundred dollars each; . . . No person shall hold more than forty 
unmatured shares, ten matured and ten paid-up shares in any one bank 
at the same time. 



288 OPINIONS OF THE ATTORNEY-GENERAL. 

Sections 22 and 26 are as follows : — 

Section 22. Any person whose application is accepted shall be 
entitled, upon proper security, to receive a real estate loan of a sum not 
exceeding two hundred dollars for each unpledged share held by him. . . . 

Section 26. For every loan made upon real estate a note shall be 
given, accompanied by a transfer and pledge of the requisite number of 
shares standing in the name of the borrower, and secured by a mortgage 
of real estate situated in the commonwealth, the title to which is in the 
name of the borrower. . . . No loan upon one parcel of real estate shall 
exceed eight thousand dollars. . . . 

There are other provisions relative to shares owned jointly 
and by trustees, but their terms in no way modify the general 
intent of the statute in respect to the matters as to which 
you have inquired. 

It is plain that the authority of the bank and its officers 
in respect to loans is limited to making them to shareholders, 
not in excess of S200 for each unpledged share held by a 
member, upon the security of real estate, the title to which 
is in the borrower. Such limits upon the authority of the 
co-operative bank in this respect were intended to carry 
out the general purpose of the institution, already referred 
to. It was not the intention of the Legislature, in enacting 
the statute, to provide a system of banking whereby a single 
shareholder or a small group of shareholders might borrow 
all or any very large part of the working capital. Loans 
made otherwise than in accordance with the limitations 
imposed by the statute are unauthorized, and in making 
them the officers of the bank are performing acts outside 
the scope of their authority which are not capable of ratifica- 
tion by the bank, its directors, or its shareholders. Share- 
holders dealing with the bank are bound to take notice of 
the statutory limitations of its authority to make loans. 
Davis V. Old Colony R.R. Co., 131 Mass. 258. 

Of the three cases which you advise me that you have 
before you and which you have submitted to me for con- 
sideration upon facts stated, the first two involve situations 



ARTHUR K. READING, ATTORNEY-GENERAL. 289 

in which a shareholder of a co-operative bank, for the pur- 
pose of obtaining for his own benefit a loan greater in amount 
than the bank is authorized to make to one person upon the 
number of shares actually held by the particular share- 
holder, which I assume in each instance, from the facts as 
you state them, to be the maximum number of shares which 
one individual is entitled to hold, or loans on a single parcel 
owned by him in excess of $8,000, resorts to a scheme which 
results in his obtaining such a loan. In the third case a 
similar result is achieved, but as a result of circumstances 
arising after the making of a proper loan by the bank to a 
shareholder and without intent to evade the provisions 
of the statute. 

I. The first case which you have stated and your question 
of law based thereon are as follows : — 

A is the owner of record of several parcels of real estate, each of suf- 
ficient value to warrant a co-operative bank loan thereon of $8,000. He 
obtains in the usual manner a loan of that amount on one parcel, but in 
order to obtain loans on the other parcels, he deeds them to various 
admittedly fictitious owners, commonly called "straws." Each of these 
"straws" applies to the same co-operative bank for a loan secured by the 
property placed in his name, the applications are accepted and the loans 
are made, the notes and mortgage deeds being signed by the "straws" and 
recorded. After the mortgages are recorded each "straw" owner re- trans- 
fers his parcel to A, and these deeds in turn are recorded. Thus the books 
of the bank reflect several apparently separate and distinct loans to as 
many individuals, but the proceeds of each loan went to A, who in the end 
is still owner of record of each parcel of real estate involved in the trans- 
action. He makes payment of all monthly dues and interest. The in- 
surance policies held by the bank show that the insurance equities are 
payable to A. 

The question arising from transactions of this nature is, — 
If the officers of the co-operative bank have knowledge of the circum- 
stances of the transaction, have they violated or permitted the violation 
of G. L., c. 170, §§ 12 and/or 26? 

The facts set forth in relation to case number I indicate 
the formation by the shareholder of a scheme to accomplish 
by indirection what the statute expressly prevents him from 
doing directly. The bank and its officers are without 



290 OPINIONS OF THE ATTORNEY-GENERAL. 

authority to make him, as an individual shareholder, such a 
loan as he desires to obtain. Such a scheme, if successfully 
carried into effect, might enable a single shareholder to 
borrow for himself all the working capital of the bank, and 
it might also enable him to borrow for himself upon a single 
piece of property a like sum. If, knowing the facts relative 
to the expedient which he is adopting to obtain such a loan, 
the officials of the bank connive with him to make a loan 
of the funds of the bank in the manner indicated, they have 
violated and permitted the violation of G. L., c. 170, §§12 
and 26. I answer your question in the affirmative. 

II. The second case and the question relating thereto 
which you set forth in your letter are as follows : — 

This case is similar to case number I, except that after the title to 
the property is transferred to the "straw" owner it remains in his name 
and is not re-transferred to A. In some cases A holds unrecorded deeds 
executed by the "straw" owner, in order that he may place them on record, 
should any attempt be made by the "straw" owner to benefit by having 
the property in his name. As in case number I, A makes pajonent of all 
monthly dues and interest. 

The question arising from such transactions is, — 
If the title to each of the various parcels involved is allowed to stand 
in the name of the "straw" to whom the loan ostensibly was made, have 
the provisions of G. L., c. 170, §§12 and/or 26, been violated? 

I assume that in this case, as well as under the facts 
stated in case number I, the officials of the bank have knowl- 
edge relative to the intent of the shareholder to obtain 
loans, by means of such "go-betweens," which he would not 
otherwise be able to negotiate. It is immaterial in what 
manner the scheme is carried out. Its purpose is to accom- 
plish a result not permissible under the statutes. 

The powers of the bank and its officers are defined by the 
statute. It was not the intent of the Legislature as ex- 
pressed in the statutes, that they should have authority to 
negotiate a loan in any other manner or to any greater 
extent than is indicated by the terms of the statute. The 
intentional negotiation by them of a loan in any other 
manner or to any greater extent than that specified by the 



ARTHUR K. READING, ATTORNEY-GENERAL. 291 

statute is ultra vires, being outside the objects for which 
the corporation was created and beyond the powers ex- 
pressly conferred to attain such objects. See Jewett v. 
West Somerville Co-operative Bank, 173 Mass. 54. Where 
the officials of a co-operative bank know that a loan in 
excess of the amount permitted by the statute to a single 
shareholder, or upon a single piece of property, is in fact 
being made to one shareholder, or upon the security of one 
piece of property, their authority is not enlarged by a 
colorable scheme, devised with their knowledge, by which 
it is made to appear of record as if the loan were being made 
to several shareholders or upon several pieces of property. 
Their acts are no less idtra vires in the latter instance than 
in the former. All persons dealing with co-operative banks, 
as with savings banks, are bound to take notice of the limi- 
tations of the powers of the institution and its officers (see 
Gilson V. Cambridge Savings Bank, 180 Mass. 444), and the 
borrower who has manipulated such a scheme as that out- 
Uned in the latter instance stands in pari delicto with the 
corporation. Whether or not an individual has the right 
in any given instance to attack the validity of the trans- 
actions of a co-operative banking corporation as ultra vires, 
the State may make them the basis of a direct proceeding 
against the corporation. Ample authority is given to the 
Commissioner of Banks by the statutes to have set in motion 
appropriate proceedings against a co-operative bank which, 
through the acts of its officers, has exceeded its authority. 

I answer your second question in the affirmative. 

Under case number II you also ask the following 
question : — 

With respect to cases numbers I and II, are the officers who invest the 
funds of the bank charged with the duty of obtaining such information 
concerning appHcants for loans, which may be available on a reasonable 
inquiry, as would enable them to prevent the obtaining of loans by such 
subterfuge or deception? 



292 * OPINIONS OF THE ATTORNEY-GENERAL. 

I answer this question in the affirmative. 
III. The facts and questions relative to the third case 
which you lay before me are as follows : — 

A and B, the owners of record of two separate and distinct parcels 
of real estate, have been granted thereon, properly and at different times, 
by the same co-operative bank, loans of $8,000 each. At a later date B, 
by bona fide sale conveys his parcel to A, subject to the co-operative 
bank mortgage, and assigns to A the value of his unmatured shares 
pledged under the mortgage. If the bank on its books transfers to A 
these assigned shares he becomes thereby the holder of eighty unmatured 
shares, twice the maximum number of shares permitted under the pro- 
visions of G. L., c. 170, § 12. The general practice, however, is for A 
to hold the assignment of B's unmatured shares without requesting that 
they be transferred to his name on the books of the bank, the assumption 
being that violation of the provisions of section 12 is thereby avoided. 

The question in this instance is, — 

(a) If the officers of the bank have knowledge of the sale 
of the mortgaged property and the assignment of the un- 
matured shares pledged under the mortgage, can they 
legally permit both loans and shares to stand unchanged in 
the name of A and B, respectively, when both parcels of 
real estate stand of record in the name of A and monthly 
payments of dues and interest are made by him and he holds 
an assignment of B's interest in the shares? 

(6) This also raises the question — What is the duty of 
the officers of the bank upon being notified either through 
a change in the person to whom insurance equities are 
payable, or otherwise, of the transfer of property upon which 
the bank holds a first mortgage? 

(c) If in any of the transactions outlined above there has 
been a violation of the statutes relating to co-operative 
banks but no breach of the conditions of the mortgage, is it 
thereby within the power of a co-operative bank to demand 
payment of the loan? 

From the facts as you state them, it does not appear that 
there is involved in the third question any scheme or design 
on the part of any shareholder to obtain from the bank 
any loans which it was not specifically authorized by 



ARTHUR K. READING, ATTORNEY-GENERAL. 293 

statute to make. This case presents a different aspect 
from that of the two foregoing situations. The loan in 
question has been duly made by the bank's officers, acting 
within their authority, and the question of a colorable 
design in relation to negotiations of the bank does not here 
appear. 

Transfer of shares in a co-operative bank is permitted 
by section 39, but inasmuch as there is a prohibition in 
section 12 on the holding of more than forty unmatured 
shares by a single individual, the bank has no legal authority 
to make a transfer which will bring one of the shareholders 
into a position where he owns on the books of the company 
more than the limited number. As the possession of the 
two parcels of real estate mentioned in case number III 
has come into the hands of a single shareholder subsequent 
to the making of a bona fide loan, although the situation 
created is not one contemplated by the statute, there is no 
specific provision which calls for action on the part of officers 
of the bank. I answer your question 3 (a) in the affirmative. 

I answer your question 3 (6) to the efi"ect that there are 
no duties incumbent upon the officers of a co-operative bank 
under the circumstances described in your question, pro- 
vided such information reaches them subsequent to a bona 
fide loan made within their specific authority under the 
statute. 

I answer your question 3 (c) in the negative. 



294 opinions of the attorney-general. 

Master Plumber — License — Registration. 

A master plumber in a town to which the statues relative to the plumbing business 
apply is not entitled to a certificate of registration or a license without an 
examination. 

Neither certificates of registration of plumbers nor licenses to those duly registered 
need be renewed annually, under the provisions of the General Laws. 
• In towns to which G. L., c. 142, § 3, is applicable, registration or license is a prereq- 

uisite to engaging in the plumbing business, and a regular place of business is 
essential to being a master plumber. 

tor of R?gi8*tra- ^ou havG lequested my opinion as to whether or not a 
*T927 person engaged in the plumbing business in a town to which 

^'^^- the plumbing acts hitherto have not been applicable is 

entitled to a certificate of registration as a master plumber 
or to a master plumber's license without an examination 
when his town properly accepts the rules relative to plumb- 
ing formulated by the Examiners under G. L., c. 142, 
§§ 8 and 9. 

In my opinion, he is not so entitled but must subject him- 
self to the examination. This is so, even though he was 
engaged in the plumbing business prior to July 10, 1893. 
When his town accepts the Examiners' rules, G. L., c. 142, 
• §§1 and 3 (among others), becomes binding upon his town, 
and these sections prohibit him from engaging in the busi- 
ness of a master plumber unless he is lawfully registered or 
duly licensed by the Examiners. He may not be licensed 
until he has successfully passed the examination, as provided 
in said chapter 142. He is not lawfully registered unless 
he has been registered in accordance with that part of 
section 1 of said chapter 142 which defines the word 
"registered." This part of section 1 states that "registered" 
means a person who has been registered under certain named 
acts, which provided for the issuing of certificates of regis- 
tration as master plumbers to persons already registered 
as such on September 1, 1894. None of these acts con- 
templated the issuing of certificates of registration to per- 
sons who would subsequently come under the operation of 
the act, but they were designed to exempt from examination 
those persons who already were engaged in the plumbing 



ARTHUR K. READING, ATTORNEY-GENERAL. 295 

business in towns to which the original act of 1894, when 
passed, applied. 

All of the acts, including the original plumbing act 
(St. 1894, c. 455), contemplated the issuing of certificates 
of registration only to such persons who were duly registered 
on or before September 1, 1894, and there is no provision 
to be found in the law which allows any other person to 
engage in the business of a master plumber unless he is 
duly licensed after an examination. 

You have also asked my opinion as to whether or not 
holders of certificates of registration must renew annually 
and pay a renewal fee. In my opinion, it is not necessary 
to renew these certificates annually, as the act of 1894 and 
acts supplementary thereto provided for the issuance of a 
certificate to certain plumbers, with no Umitation as to its 
duration. 

With reference to hcenses, G. L., c. 142, § 6, specifically 
provides that such licenses shall be issued for one year and 
may be renewed annually upon the payment of the required 
fee. In the event that a person became registered properly, 
it is my opinion that the Legislature did not intend that he 
should pay any further fee or be required to renew annually. 
Certain specific acts, such as St. 1910, c. 597, § 2, St. 1909, 
c. 536, § 3, and St. 1912, c. 518, provided for the re-registra- 
tion of holders of certificates on or before a certain date, but 
none of these acts contemplated that such persons should 
renew the certificates except on the one occasion prescribed 
by the particular act. 

You ask whether or not a person who has never been 
licensed by the Board may advertise as a plumber or engage 
in the business of plumbing. G. L., c. 142, § 3 provides: — 

No person shall engage in the business of a master plumber or work 
as a journeyman unless he is lawfully registered, or has been licensed by 
the examiners as provided in this chapter. 

It follows, therefore, clearly, that no person may engage 
in the business of a master plumber or work as a journey- 



296 OPINIONS OF THE ATTORNEY-GENERAL. 

man, as these are defined in section 1 of said chapter 142, 
unless he is lawfully registered or duly licensed by the 
Examiners. 

It is to be borne in mind, however, that these sections 
apply only to certain cities and towns, as set forth in section 
2 of said chapter 142. In those towns to which this act is 
not applicable, a person may engage in the business of 
plumbing and advertise as a plumber without being regis- 
tered or licensed. 

With reference to your question as to whether or not a 
person may advertise as a plumber, I am of the opinion that 
he may advertise to the same extent as he may lawfully 
' perform plumbing work. 

You further ask my opinion as to whether or not a master 
plumber must have a regular place of business, and also you 
ask what constitutes a regular place of business. 

In my opinion, a master plumber must have a regular 
place of business. The definition of "master plumber," 
as contained in G. L., c. 142, § 1, is as follows: ''A plumber 
having a regular place of business and who, by himself or 
journeymen plumbers in his employ, performs plumbing 
work." This definition clearly requires that a person must 
have a regular place of business in order to be a master 
plumber. 

However, it is to be noted that a person need not have a 
regular place of business in order to secure a master plumber's 
license. The license is merely a permit to do legally those 
things which when done would constitute him a master 
plumber, and which would be contrary to law if done by an 
unlicensed person. It is therefore possible for a man legally 
and properly to hold a master plumber's license and at the 
same time not be a master plumber. The license does not 
create the status of master plumber but gives to the licensee 
the right to do those things which when done cause that 
status to arise by operation of law. 



May 12. 



arthur k. reading, attorney-general. 297 

Insurance — Adjusters of Fire Losses — Solicitation 
OF Business. 

An unlicensed adjuster of fire losses may not solicit employment as the representa- 
tive of an insured in the settlement of a loss, but the statutes do not prohibit 
him from soliciting business from insurers. 

You have asked me certain questions relative to advertise- missloner^ff' 
ments and solicitations by persons who are not licensed as ^''^21'''"'' 
adjusters of fire losses, in accordance with G. L., c. 175, § 162. 

An adjuster of fire losses is defined by G. L., c. 175, § 162, 
as follows : — 

Whoever, for compensation, not being an attorney at law ... or a 
trustee or agent . . . directly or indirectly solicits from the insured or his 
representative the settlement of a loss under a fire insurance policy shall 
be an adjuster of fire losses. 

Section 172 requires that such adjusters of fire losses shall 
be licensed. 

Section 175 provides: — 

Whoever, not being duly licensed as an insurance agent or broker or as 
an adjuster of fire losses, represents or holds himself out to the public as 
being such an agent, broker or adjuster, or as being engaged in the insur- 
ance business, by means of advertisements, cards, circulars, letterheads, 
signs or other methods, or whoever, being duly licensed as such agent, 
broker or adjuster, advertises as aforesaid or carries on such business in 
any other name than that stated in his license, shall be punished by a fine 
of not less than ten nor more than one hundred dollars. 

You advise me of certain types of advertising cards which 
various unlicensed adjusters of fire losses have caused to be 
inserted in a certain insurance journal. It is largely a ques- 
tion of fact as to whether any or all of these cards, appearing 
in connection with other matter on an advertising page of 
an insurance journal, are of such a character as to constitute 
a representation to the public by the persons inserting them 
that such persons, respectively, are adjusters of fire losses. 
The Attorney-General does not pass upon questions of fact, 
but I think it would not be unreasonable to say that all of 
the advertising cards, with the possible exception of the 



298 OPINIONS OF THE ATTORNEY-GENERAL. 

fifth, read in connection with their place in an insurance 
journal, were intended as soUcitations to insureds who had 
sustained fire losses to avail themselves of the services of 
those whose names were set forth on the cards. So regarded, 
the advertiser causing such cards to be published would 
plainly be soliciting the business of adjusting fire losses 
from insureds. In this respect it would be immaterial 
whether or not such solicitation was successful. 

I answer your first question, both as to (a) and (6), in the 
affirmative. 

As to your second question, it is of the nature of a solicita- 
tion that it be intended in some way to be made to or to 
reach the person from whom something is sought. It may 
be made otherwise than face to face or by direct communica- 
tion — a third person may be made the agent of the soHci- 
tor's plea. The statute uses the words "directly or indi- 
rectly." With this proviso, I answer your second question 
in the negative. 

I answer your third question in the affirmative. 

The answer to your fourth question is, I think, fully com- 
prised in what I have already written. 

The prohibition of section 175 applies to any person, not 
licensed as an adjuster of fire losses, who solicits the settle- 
ment of a fire loss from an insured; that is, solicits employ- 
ment by the insured as the latter's representative. It has 
no application to one who does not desire to act for insureds 
and holds himself out only as the representative of an in- 
surance company. If, as a matter of fact, any card to which 
you have called my attention reasonably indicates the 
status of the advertiser as one who does not desire by his 
card to gain employment from insureds, as to which I 
express no opinion, then the advertiser would not be within 
the prohibition of section 175. 



arthur k. reading, attorney-general. 299 

Comptroller — Firemen's Relief — Allowance to 
Families of Deceased Firemen. 

It is the duty of the Comptroller, before certifying for payment a claim under 
G. L., c. 48, § 83, as amended, to the family of a deceased fireman, to satisfy 
himself as to the existence of all the conditions specified in said section which 
are necessary prerequisites to obtaining the relief provided by the statute. 

You have asked my opinion relative to your authority J^oi^Jj" ^°™P' 
to act upon a certain claim presented to you under the iv/ay^i2. 
provisions of G. L., c. 48, § 83, as amended by St. 1923, c. 
362, § 54, and you have submitted to me certain documents 
bearing on the said claim which have been presented to you. 
The section of the instant statute falls under the heading 
"Firemen's Relief," and deals with an allowance to families 
of firemen killed or fatally injured while "in the perform- 
ance of their duty at a fire or in going thereto or returning 
therefrom, or while engaged in company drills, when such 
drills are ordered by the chief, acting chief or board of en- 
gineers of the fire department, or required by city ordinance 
or town by-laws." G. L., c. 48, § 81. Section 83 reads 
as follows : — 

If a person entitled under either of the two preceding sections to the 
benefits provided in section eighty-one is killed, or dies within sixty days 
from injuries received, while in the performance of duties entitling him to 
such benefits, and his death is certified to the comptroller by the town 
clerk and the attending physician or medical examiner, the comptroller 
shall certify for payment to the executor or administrator of such person, 
out of the appropriation annually made for the purpose, the sum of twenty- 
five hundred dollars for the use equally of his widow and minor children; 
or if there are minor children but no widow, to their use; or if there is no 
minor child, to the use of the widow; and if there is no widow or minor 
child, to the use of the next of kin if dependent on such deceased person 
for support. A child of full age dependent upon such person for support 
shall be regarded as a minor child. 

You advise me that a claim for $2,500 has been presented 
by the administratrix of the estate of a deceased fireman 
who would have been entitled to relief under section 81. 

Your duty under section 83 consists in certifying for 
payment the sum of $2,500 designated by the statute. Your 



300 OPINIONS OF THE ATTORNEY-GENERAL. 

authority, however, so to certify depends upon the exist- 
ence of four sets of facts which the statute sets forth as prereq- 
uisites to the right of the administratrix to have such pay- 
ment made to her. These facts are as follows : — 

1. The administratrix' intestate must be a person entitled 
under section 81 or section 82 to receive benefits. 

2. Such person must have deceased within sixty days 
from receiving injuries which are claimed to be the cause of 
his death. 

3. He must have received such injuries while in the per- 
formance of duties entitling him to such benefits as are 
enumerated in section 81 or section 82. 

4. The injuries which such person received while in the 
performance of his duties must have been the cause of his 
death. 

In relation to each of these sets of facts you must be satis- 
fied that they exist before you can rightly exercise your 
authority to certify payment. It is not the province of the 
Attorney-General to pass upon questions of fact. The 
determination of these issues of fact rests with you. There 
are, however, certain considerations which I will indicate 
for your guidance in making your determination. 

1. I assume from the statements in your letter that you 
are satisfied that the deceased was a person entitled to receive 
benefits under section 81, and consequently a person for 
whose death an allowance might be paid under section 83. 

2. The statute provides that the fact of death shall be 
proved by the submission to you of a certificate made by 
the town clerk and the attending physician or medical 
examiner. You have submitted to me a sworn certificate 
of death within sixty days of the time when it is claimed by 
the administratrix that the injury occurred, made by the 
city clerk of Lynn, and a similar statement as to the fact 
and time of death made by a person whom I assume to be a 
physician. It is immaterial that this latter statement is 
unsworn. It would seem that this certificate and this 
statement furnish you with evidence of the death and the 



ARTHUR K. READING, ATTORNEY-GENERAL. 301 

time when it took place, in accordance with the mode de- 
scribed for determining these facts by the statute. 

3. The physician's statement, which has been filed with 
you and which you have submitted to me, does not appear 
of itself to set forth facts from which it can be ascertained 
with reasonable certainty whether a cold, which it is said the 
deceased contracted sixty days before his death while in 
the performance of his duties, was the cause of his death. 
The facts set forth in such statement fall short of furnishing 
such definite proof of the causal connection between the 
immediate injurious results said to have arisen from the 
performance of duty and the subsequent death as was 
furnished by the facts submitted in a somewhat similar case 
in which an opinion was rendered by a former Attorney- 
General (IV Op. Atty. Gen. 427). In addition to the state- 
ments made by the physician, you have before you and have 
submitted to me an affidavit by the administratrix of the 
estate which contains certain statements relative to the 
history of the deceased's injury and illness. These state- 
ments, read in connection with those made by the physician, 
do not necessarily establish such connection between the 
injury and the death as would make it necessary to determine 
such fact in favor of the claimant's contention. The word 
"injury" as used in connection with the deceased's disability 
is sufficiently broad to include illness or a cold received while 
in the course of duty, as was determined in IV Op. Atty. 
Gen. 427. 

The statute does not specify the precise mode or manner 
in which the causal connection between the injury and the 
death is to be proved. It may be proved in a variety of 
ways, but it must be so proved that you can make a determi- 
nation that death was caused by an injury received while 
the deceased was in the performance of his duties. 

4. There is no direct proof in the documents which you 
have submitted to me and which are before you that the 
deceased did not leave a widow or minor children. If such 
be the fact, a dependent next of kin, if any is living, would 



302 OPINIONS OF THE ATTORNEY-GENERAL. 

be the designated beneficiary under the statute. Among 
these documents is a statement signed by the administratrix 
tending to show that the deceased's mother was such a 
dependent relative. 

If a finding upon these various questions of fact which I 
have outhned is to be made by you upon adequate proof, 
you are to be satisfied as to the existence of each requisite 
set of facts before certifjang this claim for payment. 



Department of Education — School Children — 
Towns — Transportation. 

If a town has not made an appropriation for the free transportation of school 
children, a denial of a request for such transportation by the school committee, 
on the ground of lack of funds, is such a declination that the Department of 
Education may, upon a proper appeal therefrom, require the town to furnish 
such transportation. 

m°ss\one?or' You have asked my opinion upon two questions relative 

Education. ^^ |.]^g powers of your Department concerning the trans- 

MajMG. portation of school children by a town in which the children's 

residences are more than two miles from the high school of 

the town, which they are entitled to attend, which I assume 

is maintained under authority ofG. L., c. 71, §§4 and 5. 

G. L., c. 71, § 68, is as follows: — 

Every town shall provide and maintain a sufficient number of school- 
houses, properly furnished and conveniently situated for the accommo- 
dation of all children therein entitled to attend the public schools. If 
the distance between a child's residence and the school he is entitled to 
attend exceeds two miles, and the school committee declines to furnish 
transportation, the department, upon appeal of the parent or guardian 
of the child, may require the town to furnish the same for a part or for 
all of the distance. If said distance exceeds three miles, and the distance 
between the child's residence and a school in an adjoining town giving 
substantially equivalent instruction is less than three miles, and the 
school committee declines to pay for tuition in such nearer school, and 
for transportation in case the distance thereto exceeds two miles, the 
department, upon like appeal, may require the town of residence to pay 
for tuition in, and if necessary provide for transportation for a part or 
for the whole of said distance to, such nearer school. The school commit- 



ARTHUR K. READING, ATTORNEY-GENERAL. 303 

tee, unless the town otherwise directs, shall have general charge and 
superintendence of the schoolhouses, shall keep them in good order, and 
shall, at the expense of the town, procure a suitable place for the schools, 
if there is no schoolhouse, and provide fuel and all other things necessary 
for the comfort of the pupils. 

You have advised me that in response to a petition by 
ten residents of a town, some of whom, I assume, are parents 
of children entitled to attend the high school maintained 
by the town, the school committee answered the petitioners 
as follows : — 

Inasmuch as its request for an appropriation for the purpose of trans- 
porting pupils to the high school had been refused at town meeting, the 
committee could not grant the request for transportation of pupils to 
high school because it had no funds which could be used for this purpose. 

I assume that this answer was an official communication 
from the school committee, as such. 

You have also advised me that the inhabitants of the town, 
in town meeting, refused to make an appropriation for the 
transportation which was the subject of the school com- 
mittee's communication; and you have further advised 
me that four of the residents of the town have appealed 
from the declination of the school committee to your De- 
partment. I assume that at least one of these applicants is 
a parent or guardian of a school child entitled to attend the 
town high school. 

Your questions are as follows : — 

1. Has the school committee declined to furnish transportation ac- 
cording to G. L., c. 71, §68? 

2. In case the Department decides to require the town to furnish 
transportation for a part or for all of the distance, to what official or board 
should its communication, making this requirement, be addressed? 

Upon the assumptions which I have made from the facts 
stated in your letter, I answer your first question in the 
affirmative. 

The statute specifically provides that upon appeal to your 
Department by a parent or guardian of a child for whom the 
school committee has declined to furnish transportation your 



304 OPINIONS OF THE ATTOKNEY-GENERAL. 

Department may require the town to furnish the same. 
Any communications from your Department requiring the 
town to furnish transportation should be addressed to the 

Inhabitants of the Town of , and should be served on 

the board of selectmen. A penalty for failure to comply 
with your requirement in this respect is provided as against 
the town by G. L., c. 71, § 34. 



State Retirement Association — Income Tax Assessors 
— State Employees. 

Income tax assessors are not exempt from compulsory membership in the Retire- 
ment Association, with all the consequences which flow therefrom. 

Board*' of^ReT- You havc rcquestcd my opinion as to whether income 
*'?92r*' tax assessors, appointed under G. L., c. 14, § 4, are exempt 

May^s. from the provisions of G. L., c. 32, §§ 1-5. It has been the 

practice of this office to be somewhat reluctant to give 
opinions in response to general inquiries, for the reason that 
in so doing, while the answers given may, in general, be 
correct, some feature or qualification may be overlooked 
which upon the particular facts of some particular situation 
might be determinative. I am undertaking to answer your 
question, however, in such manner as I think will cover 
most of the situations which are likely to arise under the 
law as it now exists. 

In G. L., c. 32, § 1, the term "employees" was defined as — 

permanent and regular employees in the direct service of the common- 
wealth or in the service of the metropolitan district commission, whose 
sole or principal employment is in such service. 

While this definition stood thus, it was ruled by one of my 
predecessors that the commissioners composing the Depart- 
ment of Pubhc Works, appointed by the Governor, with the 
advice and consent of the Council, for short and definite 
terms of years, were not employees within that definition. 
By St. 1922, c. 341, the definition of "employees" was 
altered to read as follows : — 



ARTHUR K. READING, ATTORNEY-GENERAL. 305 

Persons permanently and regularly employed in the direct service of 
the commonwealth or in the service of the metropolitan district commis- 
sion, whose sole or principal employment is in such service. 

Thereafter, another of my predecessors ruled that the clerk 
of the Supreme Judicial Court, appointed by the justices 
of that court for a term of five years, was not an employee 
within this definition. 

In the first of those opinions it was pointed out that the 
persons concerned were the holders of public office and not 
in public employment, in a technical or restricted sense, and 
that by reason of their limited tenure, at least, they were 
not within the spirit of the retirement act and not within 
the definition of "employees." In the second of those 
opinions emphasis was principally laid upon the fact that 
the clerk was the holder of a public office. 

G. L., c. 32, § 2, reads, in part, as follows: — 

There shall be a retirement association for the employees of the com- 
monwealth, . . . organized as follows: 

(1) All persons who are now members of the state retirement associa- 
tion established on June first, nineteen hundred and twelve, shall be 
members thereof. 

(2) All persons who are members of the teachers' retirement association 
at the time of entering the service of the commonwealth, and persons 
who were or are in the employment of a department or institution formerly 
administered by a city, county or corporation when taken over by the com- 
monwealth shall become members of the association, irrespective of age, 
but no such person shall remain in the service of the commonwealth after 
reaching the age of seventy. Except as provided in paragraph (3) all 
other persons who enter the service of the commonwealth hereafter shall, 
upon completing ninety days of service, become thereby members of the 
association, except that such persons over fifty-five shall not be allowed 
to become members of the association, and no such person shall remain 
in the service of the commonwealth after reaching the age of seventy. 

(3) No officer elected by popular vote shall be a member of the asso- 
ciation, nor any employee who is or will be entitled to a non-contributory 
pension from the commonwealth; but if such employee leaves a position 
for which such a pension is provided, before becoming entitled thereto, 
and takes a position to which this section applies, he shall thereupon 
become a member of the association. 



306 OPINIONS OF THE ATTORNEY-GENERAL. 

St. 1921, c. 439, § 1, added at the end of the provision last 
quoted above the following : — 

An official under fifty-five years of age when appointed or reappointed 
by the governor for a fixed term of years, may, if his sole emplojmient is 
in the service of the commonwealth, become a member of the association 
by making written appUcation for membership within one year from the 
date of his original appointment or subsequent reappointment to the same 
office. An official who is a member of the association shall not receive 
credit for any period of service which he may have rendered as an official 
from June first, nineteen hundred and twelve, to the date of his appoint- 
ment or reappointment which immediately preceded his membership in 
the association. 

By section 2 of the same act it was further provided as 
follows : — 

Officials in the service of the commonwealth who are members of the 
state retirement association when this act takes effect, may, upon wi'itten 
application to the state board of retirement within six months after said 
date, withdraw their membership and their accounts in the association. 

It seems fairly clear that the purpose of St. 1921, c. 439, 
was to settle the status, with respect to the retirement laws, 
of the group of superior public officers holding office for 
specified limited terms of years. That it did not refer to 
all public officers whatever, but rather to those of superior 
grade and limited tenure, is, it seems to me, shown by the 
use of the word "official" and by the fact that the permis- 
sion of section 1 is extended only to officials "when appointed 
or reappointed by the governor for a fixed term of years." 
It recognizes that there might be officers of this grade, not 
members of the Retirement Association, who would like to 
become such, and also officials, already members of the 
association, at least de facto, who might desire to withdraw 
therefrom; and it afforded to the persons in each group a 
limited opportunity to carry out their desires in this regard. 
The words "officials in the service of the Commonwealth," 
in section 2, would thus have reference to officials of the 
type referred to in section 1, namely, those deriving their 



ARTHUR K. READING, ATTORNEY-GENERAL. 307 

office by appointment of the Governor for a fixed term of 
years. 

That some persons who were technically public officers, 
and not merely servants or agents, were intended to be 
brought into the retirement system is shown by the fact that 
in paragraph 3 of G. L., c. 32, § 2, quoted above, it was 
thought necessary to provide that "no officer elected by 
popular vote shall be a member of the association." As the 
law now stands, therefore, the provisions of the retirement 
act apply, so far as they can be spoken of in general terms, 
to public officers whose sole or principal work consists in 
the performance of their official duties, and whose tenure 
of office may be deemed "permanent," as that word is used 
in G. L., c. 32, § 1, as amended. They apply, in addition, 
to such public officers as hold superior posts by appointment 
of the Governor for a fixed term of years, and who, under 
the provisions of St. 1921, c. 439, shall have elected to 
remain or to become members. They do not apply, how- 
ever, to officials who, being entitled to exercise the choice 
afforded by St. 1921, c. 439, have elected to be or remain 
outside the association; nor to other public officials whose 
tenure cannot fairly be described as permanent. 

Income tax assessors are appointed by the Commissioner 
of Corporations and Taxation, with the advice and consent 
of the Governor and Council, for terms of indefinite duration ; 
and they may be removed in the same way. G. L., c. 14, 
§ 4, as amended by St. 1922, c. 330. They have such duties 
and powers, consistent with G. L., c. 62, as the Commis- 
sioner may prescribe. G. L., c. 14, § 8. It is contemplated 
that they shall have subordinates. G. L., c. 14, § 4, as 
amended. They are expected to have offices within their 
several districts, at which offices returns may be filed and 
taxes paid. See G. L., c. 62, §§ 24, 32 and 39. There is 
a strong implication that they receive taxes paid to them in 
an independent capacity, somewhat like that of the col- 
lector of local taxes, for which they may be personally 
accountable to the Commissioner. See G. L., c. 62, § 40. 



308 OPINIONS OF THE ATTORNEY-GENERAL. 

In my opinion, income tax assessors are public officers as 
distinguished from employees, in the technical sense. 
Brown v. Russell, 166 Mass. 14; Attorney General v. Drohan, 
169 Mass. 534; Attorney-General v. Tillinghast, 203 Mass. 
539; Rich v. Mayor of Maiden, 252 Mass. 213. 

They do not, however, fall within the class of officials to 
whom the right of choice given by St. 1921, c. 439, is ex- 
tended, for they are not appointed by the Governor but by 
the Commissioner. Neither is there anything temporary 
about their tenure of office. They are not appointed for 
definite terms of years but for terms of indefinite duration 
which may extend for a lifetime. They are not removable 
solely at the will of the Commissioner, but only "with the 
advice and consent of the governor and council." Their 
time in office may therefore be expected to extend beyond 
the term of any particular commissioner. They are thus 
about as nearly permanently and regularly employed as any 
employee of the Commonwealth who is not under civil 
service. I am assuming, without further inquiry, that their 
sole or principal employment is in the service of the Com- 
monwealth. 

It follows that these officers are not exempt from com- 
pulsory membership in the Retirement Association, with all 
of the consequences which flow therefrom, and that if upon 
their appointment they fail to become members of the 
association by reason of being over the age of fifty-five, they 
are, nevertheless, subject to the provision that they may not 
remain in the service of the Commonwealth after reaching 
the age of seventy. 



arthur k. reading, attorney-general. 309 

Department of Educaton — School Committees — 
Special Classes. 

The Department of Education may provide by regulation for an appropriate 
examination of pupils by school committees with relation to the formation of 
special classes for those of retarded mental development, and attendance 
at such classes may be compelled as in other public school classes. 

Regulations of the Department relative to the type of child to be required to attend 
such special classes are binding upon school committees. 

You have asked my opinion upon three questions relative Jj°^!;|'o'ne°™f" 
to the power of school committees of towns, under G. L., ^icjof'"'"' 
c. 71, § 46, as amended, in connection with special classes ^^'^• 
for the instruction of children of retarded mental develop- 
ment, but not with relation to any particular case or to any 
set of facts before you for determination. It has been the 
practice of this office to be somewhat reluctant to give 
opinions in response to general inquiries upon questions of 
law or of statutory interpretation, for the reason that in so 
doing, while the answers given may be correct in their 
appUcation to the general inquiry, some feature or qualifica- 
tion may not be stated which upon the particular facts of an 
existing situation might be determinative. Inasmuch, 
however, as you advise me that my opinion is desired to 
aid your Department in the preparation of regulations 
applicable to the enforcement of the law, I answer your 
questions with a view to affording you an interpretation of 
such portions of the statute as you inquire about and to 
assist you in determining the scope of the regulations which 
you are authorized to establish. 

G. L., c. 71, § 46, as amended by St. 1922, c. 231, to which 
you direct my attenton, reads as follows : — 

The school committee of every town shall annually ascertain, under 
regulations prescribed by the department and the commissioner of mental 
diseases, the number of children three years or more retarded in mental 
development in attendance upon its public schools, or of school age and 
resident therein. At the beginning of each school year, the committee 
of every town where there are ten or more such children shall establish 
special classes for their instruction according to their mental attain- 
ments, under regulations prescribed by the department. No child under 



310 OPINIONS OF THE ATTORNEY-GENERAL. 

the control of the department of public welfare or of the child welfare 
division of the institutions department of the city of Boston who is three 
years or more retarded in mental development within the meaning of 
this section, shall, after complaint made by the school committee to 
the department of public welfare or said division, be placed in a town 
which is not required to maintain a special class as provided for in this 
section. 

You have addressed to me the following questions : — 

1. Can the school committee require that any child of school age 
shall be examined in order to ascertain the number of children who are 
mentally retarded? 

2. Can the school committee compel the attendance at the special 
classes established under this section of children who are found to be 
three or more years mentally retarded? 

3. Must the school committee require all children who are found to be 
three or more years retarded to attend such classes or may they use 
their discretion? 

1. The character of the examination to which you refer 
in your first question is, I assume, of a different and some- 
what more extended form than the medical examinations 
of school children provided for by G. L., c. 71, §§ 54-59, as 
amended, and seeks data not readily to be obtained by the 
requirements for the registration of minors of school age 
under G. L., c. 72, as amended. Nevertheless, the examina- 
tion for which you desire to provide by regulations is, I 
assume, though different in form and in degree of thorough- 
ness, not different in kind from the examination by a school 
doctor or from such examination as is necessary to obtain 
the data for the registration of minors of school age. Its 
purpose, as it appears from the provisions of the instant 
statute, is in a general way the same as that of the others 
heretofore referred to. Like them, it seeks to make avail- 
able knowledge of the condition of the school child, with a 
view to providing for his well-being, physically and mentally, 
in the most appropriate way under the general provisions 
of our laws for education. A regulation of your Depart- 
ment providing for such an appropriate examination, under 
G. L., c. 71, § 46, could not necessarily be said to be un- 



ARTHUR K. READING, ATTORNEY-GENERAL. 311 

reasonable or arbitrary, and in ascertaining the number of 
mentally retarded children of school age a school committee 
would be bound to follow such a regulation of your Depart- 
ment, and the committee's requirement that a child should 
be so examined under your regulations would not, in my 
opinion, be unlawful. 

2. As to your second question: The special classes for 
school children of retarded mental development, established 
under G. L., c. 71, § 46, as amended, appear from the pro- 
visions of that statute to be a regular part of the school 
system as much as other classes or grades to which children 
in the schools may be assigned, and I am of the opinion that 
attendance at these special classes may be compelled in the 
same manner as is provided for the attendance of school 
children in other classes of the public schools. 

3. As to your third question: The regulations of your 
Department relative to the establishment, for school children 
of the retarded mental development specified in the instant 
statute, of "special classes for their instruction according to 
their mental attainments," in so far as such regulations 
cover the field of requirements as to what children shall be 
required to attend such classes, are binding upon a school 
committee, and it cannot exercise discretion as to requiring 
attendance within such field. If there are individual cases 
which are not covered by your regulation, a school committee 
may exercise discretion, within the requirements of the 
statute, in determining the form of instruction suited to the 
attainments of the mentally retarded children under its care. 



312 opinions of the attorney-general. 

Banking — Commissioner of Banks — Trust Company 

— Assessments. 

The Commissioner of Banks may require trust companies to levy assessments upon 
stockholders whenever and as often as he deems the capital stock to be im- 
paired. 

m?s*si'o^n?°^f" You have requested my opinion upon the following ques- 

tion : — 



Banks. 

1927 

May 27 



If the Commissioner of Banks has levied, under the provisions of G. L., 
c. 172, § 25, as amended by St. 1922, c. 488, § 3, and the stockholders of 
a trust company have paid, an assessment or assessments aggregating 
100% of the capital stock, has he (the Commissioner) authority to levy 
and enforce the collection of further assessments in the event that the 
capital subsequently becomes impaired? 

It is necessary to consider three sections of the General 
Laws in answering the above question. 

G. L., c. 172, § 24, as amended by St. 1922, c. 488, § 2, is 
as follows : — 

The stockholders of such corporation shall be personally liable, 
equally and ratably and not one for another, for all contracts, debts and 
engagements of the corporation, to the amount of their stock therein at 
the par value thereof, in addition to the amount invested in such shares, 
and no stockholder shall be allowed to set off any claim as a depositor in 
or creditor of either the commercial or savings departments against such 
liability. Sections forty-six to fifty-four, inclusive, of chapter one hun- 
dred and fifty-eight shall apply to and regulate the enforcement of such 
liability by creditors of the corporation. 

G. L., c. 167, § 24, as amended by St. 1922, c. 488, § 1, 
provides, among other things, that the Commissioner of 
Banks, after he has properly taken possession of the property 
and business of a trust company, may, if he deems it neces- 
sary to enforce the liabiUty of stockholders described in 
G. L., c. 172, § 24, file a bill in equity against all persons who 
were stockholders therein at the time of such taking pos- 
session to enforce such individual liability. 

G. L., c. 172, § 25, as amended by St. 1922, c. 488, § 3, is 
as follows: 



ARTHUR K. READING, ATTORNEY-GENERAL. 313 

Any such corporation whose capital stock has, in the opinion of the 
commissioner, become impaired by losses or otherwise, shall, within 
three months after receiving notice from the commissioner, pay the de- 
ficiency in the capital stock by assessment upon the stockholders pro 
rata to the shares held by each. If such corporation shall fail to pay such 
deficiency in its capital stock for three months after receiving such notice, 
the commissioner may apply to the supreme judicial court for an injunc- 
tion; and if a stockholder of such corporation neglects or refuses, after 
three months' notice, to pay the assessment as provided in this section, the 
board of directors shall cause an amount of his stock sufficient to make 
good his assessment to be sold by public auction, after thirty days' notice 
given by posting such notice in the office of the corporation and by pub- 
lishing it in a newspaper of the city or town where the corporation is lo- 
cated or in a newspaper published nearest thereto; and the balance, if 
any, shall be returned to such delinquent stockholder. This section shall 
not take away the right of creditors to enforce the liability of stockholders 
in such corporations, as provided in the preceding section, or the right 
of the commissioner to enforce such liability as provided in section twenty- 
four of chapter one hundred and sixty-seven, nor increase the general 
liability of such stockholders. 

G. L., c. 172, § 24, creates liability on the part of such 
stockholders for all contracts, debts and engagements of the 
corporation, to the amount of their stock therein at the par 
value thereof, in addition to the amount invested in such 
shares. This section also, by reference to G. L., c. 158, 
prescribes the method of enforcing this liability by the 
creditors. This liability is solely a creature of statute and 
was unknown to the common law. Cosmopolitan Trust Co. 
V. Cohen, 244 Mass. 128. Both the Habihty on the part of 
the stockholders and the method of enforcing this liability 
are created and defined by this section, which confers rights 
to creditors only. 

G. L., c. 167, § 24, as amended, provides that after the 
Commissioner has taken possession of such a bank, he may 
(among other powers), if he deems it necessary to enforce 
the liability of stockholders as described in the first sentence 
of G. L., c. 172, § 24, file a bill in equity against all persons 
who were stockholders therein at the time of taking posses- 
sion. His determination that this liability should be en- 



314 OPINIONS OF THE ATTORNEY-GENERAL. 

forced is final. Cunningham v. Commissioner of Banks, 
249 Mass. 401, 426. 

Clearly, this section does not create a new liability on the 
part of the stockholders of trust companies but simply pro- 
vides that the Commissioner, after he has properly taken 
possession, may also enforce this liability. In so enforcing 
this liability he is governed by the procedure and regulations 
set forth in G. L., c. 172, § 24. Cosmopolitan Trust Co. v. 
Cohen, 244 Mass. 128. The Commissioner of Banks in en- 
forcing this liability is not exercising a different right from 
that given to creditors under G. L., c. 172, § 24, but acts for 
them in a representative capacity. Commissioner of Banks 
V. Cosmopolitan Trust Co., 253 Mass. 205, 226. The stock- 
holders, in my opinion, could not be subjected to liabiUty 
by the creditors acting under G. L., c. 172, § 24, and by the 
Commissioner of Banks acting under G. L., c. 167, § 24. 

Coming now to G. L., c. 172, § 25, it is there provided that 
if, in the opinion of the Commissioner, the capital stock of a 
trust company has become impaired, the Commissioner may 
call upon the corporation to pay the deficiency by assess- 
ment upon the stockholders; and further, that if a stock- 
holder neglects or refuses to pay such assessment, after 
notice, the board of directors shall sell, at public auction, a 
sufficient amount of his stock to make good his assessment. 
It is also provided that this section shall not take away 
either the right of the creditors to enforce the stockholders' 
liability under G. L., c. 172, § 24, or the right of the Com- 
missioner to enforce the same under G. L., c. 167, § 24. It 
is further provided that the general liability of the stock- 
holders shall not be increased by this section. 

Apparently this section has not been passed upon by our 
courts, the only reference thereto being contained in the 
case of Commissioner of Banks v. Prudential Trust Co., 242 
Mass. 78, 86, where the court said : — 

The present suit is not grounded on G. L., c. 172, § 25. That relates 
to a different matter from that here involved. 



ARTHUR K. READING, ATTORNEY-GENERAL. 315 

That case was a proceeding by the Commissioner of Banks 
under G. L., c. 167, § 24, and the court, in the opinion, 
stated that the action was not related to proceedings institu- 
ted under G. L., c. 172, § 25. The inference is strong 
that the court meant that the actions under G. L., c. 172, 
§ 24, and G. L., c. 167, § 24, on the one hand, are separate 
and distinct from action under G. L., c. 172, § 25, and are 
cumulative rather than alternative measures. Delano v. 
Butler, 118 U. S. 634; Northwestern Trust Co. v. Bradbury, 
117 Minn. 83, 91. 

Section 25 expressly states that the rights of creditors 
under G. L., c. 172, § 24, and of the Commissioner under 
G. L., c. 167, § 24, shall not be taken away by that section. 
It also adds that the general liability of stockholders shall 
not be increased by this section. 

The precise question asked by you is whether or not the 
Commissioner, after having caused to be collected an assess- 
ment of one hundred per cent from the stockholders, under 
section 25, could levy and enforce the collection of a further 
assessment in the event that the capital stock subsequently 
becomes impaired. I am of the opinion that he may take 
the steps outlined in section 25 as often as he deems it neces- 
sary to do so for the purpose of restoring the impaired capital 
stock. Does this increase the stockholders' general Hability? 
This section does not create any personal hability upon the 
stockholders. A stockholder may refuse to pay the assess- 
ment, and the only remedy available is a sale of the stock 
of such stockholder by the board of directors for the purpose 
of raising the amount assessed to him. No personal action 
can be had against him by any one under this section, and it 
therefore seems to be clear that the section does not increase 
his ''general liabihty," or, indeed, any liability. Further, 
the "general liability" which may not be increased seems to 
refer to such liabihty as is defined and imposed elsewhere 
than in this section, which, as we have said, creates no habil- 
ity at all, or at the most a very special hability. 

The section, obviously, is of a regulatory and protective 



316 OPINIONS OF THE ATTORNEY-GENERAL. 

character. Its purpose is not to benefit creditors or any 
other particular group or class, but rather to protect the 
general public from the manifest dangers of dealing with a 
bank which is not in a proper condition to carry on the 
important business of banking, which vitally affects the 
interests of those who directly or indirectly deal with it. 
The Commissioner, in the exercise of his discretion, is the 
sole judge of the necessity of proceeding under this section, 
and his duty to act is just as clear and as necessary to the 
public welfare upon the second or third occasion of impair- 
ment of capital as upon the first. It could not have been 
the legislative intent to limit the exercise of this power of 
the Commissioner to one occasion, when, obviously, at a 
subsequent time the identical need for its exercise might 
arise. 

The words of section 25 seem also to indicate that no limi- 
tation is to be put upon the number of times that the Com- 
missioner may exercise this power. That statute says : 

Any such corporation whose capital stock has, in the opinion of the 
commissioner, become impaired . . . shall, . . . pay the deficiency. 

These words not only suggest no limitation as to the number 
of times the Commissioner may exercise this power but 
seem to imply that the Commissioner shall act whenever 
and as often as the capital stock has, in his opinion, become 
impaired. 

I therefore answer your question in the affirmative. 



arthur k. reading, attorney-general. 317 

Taxation — Stockholders — Voting Trust — 
Taxable Gain. 

A deposit of shares in a voting trust of limited powers does not of itself create a 
taxable gain under G. L., c. 62, § 5, as amended, nor is such a trust one of the 
bodies designated in G. L., c. 62, §§1 and 5. 

You request my opinion as to whether a taxable gain TotheCom- 

i ^ ^ c missioner of 

under G. L., c. 62, § 5, par. (c), as amended, is reahzed by andTaxation. 
stockholders in an association, trust or corporation when jin^Y 
such stockholders deposit their shares with the trustees 
under a voting trust of the type employed in the ''Share 
Trust Agreement" of North Boston Lighting Properties 
dated March 15, 1927, and in the "Stock Trust Agreement" 
of the Fitchburg Gas and Electric Light Company dated 
January 2, 1926. You further ask whether, in my opinion, 
such a voting trust constitutes a "partnership, association or 
trust, the beneficial interest in which is represented by trans- 
ferable shares," within the meaning of G. L., c. 62, §§1 
and 5. 

G. L., c. 62, § 5, provides, in part: — 

Income of the following classes received by any inhabitant of the com- 
monwealth during the preceding calendar year shall be taxed as follows : 

(c) The excess of the gains over the losses received by the taxpayer from 
purchases or sales of intangible personal property, whether or not said 
taxpayer is engaged in the business of deaUng in such property, shall be 
taxed at the rate of three per cent per annum. Any trustee or other fidu- 
ciary may charge any taxes paid under this paragraph against principal 
in any accounting which he makes as such trustee. If, in any exchange of 
shares upon the reorganization of one or more corporations or of one or 
more partnerships, associations or trusts, the beneficial interest in which 
is represented by transferable shares, the new shares received in exchange 
for the shares surrendered represent the same interest in the same assets, 
no gain or loss shall be deemed to accrue from the transaction until a sale 
or further exchange of such new shares is made. 

The trusts created by voting agreements such as those 
which you have submitted to me for examination are for a 
very limited purpose. Briefly stated, the machinery of the 
trusts consists of : — 



318 OPINIONS OF THE ATTORNEY-GENERAL. 

(1) The deposit of shares with trustees, giving the trustees 
the power to vote the shares deposited during the term of 
the trust, to transfer the shares for convenience into their 
own name, and to sell all, but not less than all, of the shares 
at not less than a stated price. 

(2) The issuing by the trustees or depositaries to the 
depositor stockholders of certificates stating the number of 
shares deposited; in effect a negotiable receipt (subject to 
the terms of the agreement) for the shares. 

(3) The payment to the stockholder, either directly or 
through the trustees (in the event that the shares are trans- 
ferred to the trustees' names on the company books), of the 
dividends upon the precise shares of stock deposited during 
the term of the trust, or until all the shares are sold accord- 
ing to the agreement. 

(4) If all the shares are not sold before the date named in 
the agreement, the retransfer of the deposited shares to their 
original owners. 

(5) In the event of a stock dividend during the term of the 
trust, the receipt by the depositor of the dividend stock, 
which must be deposited with his shares already subject to 
the agreement. 

(6) The payment to the stockholder by the trustees or 
the depositaries of the amount received by them from the 
sale of the deposited stock, in the event of such a sale ac- 
cording to the terms of the voting agreement. 

At the most, such an agreement creates a bare trust of 
specific property with named powers as to that property 
vesting in trustees for Hmited purposes. Strictly speaking, 
for a time the stockholder technically exchanges legal owner- 
ship of the shares for an equitable interest in the same 
shares. Practically speaking, he hmits by contract the jus 
disponendi of his property for the common benefit of himself 
and the other stockholders joining in the agreement by 
giving to the trustees or depositaries power to act for him 
in certain particulars. See Brightman v. Bates, 175 Mass. 
105. By the deposit he clearly gains no interest in any new 



ARTHUR K. READING, ATTORNEY-GENERAL. 319 

property. He receives nothing but a receipt for precisely 
the same shares which he had before. It cannot be said that 
there is any such accession of wealth to him by the trans- 
action as will constitute a realized gain. The reasoning in 
Van Heusen v. Commissioner of Corporations and Taxation, 
257 Mass. 488, is applicable, and no taxable gain is recog- 
nizable until the deposited shares or the voting trust certifi- 
cates representing the deposited shares are themselves sold 
or exchanged for money or other property having a fair 
market value, at which time a taxable gain, if gain there be, 
accrues to the depositor stockholder, measured by the tax 
cost basis of the stock to him. 

In my opinion, a voting trust is not a "partnership, 
association or trust, the beneficial interest in which is repre- 
sented by transferable shares," within the meaning of G. L., 
c. 62, §§ 1 and 5. The purposes of the deposit under the 
voting trust are extremely limited, and the transaction, in 
substance, is little more than an irrevocable agency for sale, 
under which, until the sale, the depositor retains nearly all 
of the incidents of ownership. The Legislature unques- 
tionably intended to include within the category quoted 
above "Massachusetts trusts" of the usual business type, 
partnerships and unincorporated associations issuing shares 
reasonably comparable to shares of corporate stock. The 
situation under a voting trust for the limited purpose of sale 
of the specific stock deposited is so different from that under 
any of the types of association actually engaged in active 
business which are included within the statutory provision, 
that it seems highly unlikely that the Legislature intended 
to place both groups within the same classification. 



320 opinions of the attorney-general. 

Teachers' Retirement Association — Teacher of 
Music ■ — Term of Service in Public Schools. 

A period of service in the public schools by a teacher of music for two years and 
three months, even though such service during such period was given on only 
one day a week, should be counted as two years and three months in determin- 
ing whether such teacher has served in the public schools for fifteen years. 

mrssi'on^rTf' ^ou havG asked my opinion as to whether or not service 

Edji«ition q£ Qj^g ^^y ^ week in the pubUc schools of the Conunon- 
^^^- wealth by an instructor of music for a period of two years 

and three months should be counted as two years and three 
months of service in determining whether or not this teacher 
"has served fifteen years or more in the public schools," 
so as to entitle him to receive a pension under G. L., c. 32, 
§ 10 (5). This paragraph is as follows: 

Any member who served as a regular teacher in the pubHc 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: . . . 

This man is admittedly a member of the Association; he 
has served as a regular teacher in the public schools prior 
to July 1, 1914; he will have served as a teacher in the 
public schools for more than five consecutive years imme- 
diately preceding July 1, 1927, the date upon which he must 
retire. The only remaining question is whether he will have 
served fifteen years or more in the public schools so that he 
may be eligible for the pension provided by G. L., c. 32, 
§ 10 (5). 

Of the necessary fifteen years of service he will have had 
to his credit on July first, next, thirteen years, four and one- 
half months of regular employment as a teacher, dating 
from February 15, 1914, to July 1, 1927. He also served as 
teacher of music in the town of Hamilton for a period of 
two years and three months beginning in September, 1898, 
during which time he served one day a week while school 
was in session. The school committee of Hamilton duly 



ARTHUR K. READING, ATTORNEY-GENERAL. 321 

elected him to this position and he was paid a yearly com- 
pensation. The above constitutes the entire service of this 
man as a teacher in the public schools of the Commonwealth. 

I am of the opinion that this service should be included, so 
that he will have served fifteen years, seven and one-half 
months on July 1, 1927, and thereby be entitled to the pen- 
sion set forth in paragraph (5) of section 10. That the time 
spent in teaching music was not full time does not alter the 
situation. 'Tubhc school" is defined in G. L., c. 32, § 6, 
as ''any day school conducted under the superintendence of 
a duly elected school committee." I assume that the schools 
of Hamilton conform to this definition. Nothing is said in 
paragraph (5) of section 10 as to full time or part time, and 
as long as the teacher is regularly employed it seems that the 
service should be counted. 

This view is strengthened by the change made by St. 
1925, c. 228, which amends the definition of "teacher" con- 
tained in G. L., c. 32, § 6, by adding (among other things) 
that a person to be a teacher within the meaning of the act 
must be employed on a full time basis. The inference 
is strong that until this act was passed a person could be a 
teacher without being employed on a full time basis. 
Further, this act of 1925 stated that it should not be con- 
strued to affect the rights of any person then enrolled as a 
member of the State Teachers' Retirement Association. 
Similarly, it seems that the words "who has served fifteen 
years or more in the public schools" do not import full time 
service. These words, as contained in paragraph (5) of 
section 10, have not been amended, and in so far as the 
question arises as to whether they import full time service 
it is fair to assume that they would be construed to have the 
same meaning as that which was given to the word "teacher" 
prior to the passage of St. 1925, c. 228. 



322 



OPINIONS OF THE ATTORNEY-GENERAL. 



Taxation — Banks — Rate of Taxation. 

The rate at which bank taxes are to be levied is to be determined in a manner con- 
sistent with U. S. Rev. Sts., § 5219. 



You have requested my opinion on certain questions 
with respect to fixing a rate to be appHed in levying bank 



To the Com- 
missioner of 
Corporations 
and Taxation. 

jjne^is. taxes under G. L., c. 63, § 2, as amended by St. 1925, c. 343, 

§ 1, reading as follows: — 

Every bank shall pay annually a tax measured by its net income, as 
defined in section one, at the rate assessed upon other financial corpora- 
tions; provided, that such rate shall not be higher than the highest of 
the rates assessed under this chapter upon mercantile, manufacturing 
and business corporations doing business in the commonwealth. The 
commissioner shall determine the rate on or before July first of each 
year after giving a hearing thereon and shall seasonably notify the banks 
of his determination. Appeal by a bank from the determination of the 
commissioner may be taken to the board of appeal from decisions of the 
commissioner of corporations and taxation, in sections five and six called 
the board of appeal, within ten days after the giving of such notice. 

Under this section the rate at which bank taxes are to be 
levied is the rate assessed upon other financial corporations. 
There is no classification of corporations as "financial 
corporations" in the General Laws or amendments thereto, 
but the wording of section 2, above quoted, is that used in 
U. S. Rev. Stat,, § 5219, 1 (c). It is a matter of historical 
fact that section 2 of G. L., c. 63, as amended, was enacted 
in the light of U. S. Rev. Stat., § 5219, although enacted 
prior to the amendment to section 5219 contained in the 
subsection of that statute numbered 1 (c). It is necessary, 
therefore, for us to adopt a construction of section 2 of G. L., 
c. 63, which will not conflict with Rev. Stat., § 5219. 

The definition of "banks," contained in G. L., c. 63, § 1, 
as amended, includes banks "existing by authority of the 
United States" as well as banks organized under the laws 
of this Commonwealth. It is fundamental that national 
banks may be taxed under State authority only in so far as 
Congress consents to such taxation, and only in conformity 
with the restrictions attached to the consent of Congress. 



ARTHUR K. READING, ATTORNEY-GENERAL. 323 

First National Bank of Hartford v. Hartford, 273 U. S. 548; 
First National Bank v. Anderson, 269 U. S. 341, 347. The 
words "at the rate assessed upon other financial corpora- 
tions," therefore, must be taken to have the same meaning 
as those words when used in Rev. Stat., § 5219. 

Subsection 1 (c) of Rev. Stat., § 5219, has not yet been 
given judicial construction. From the debates in Congress 
at the time this section was amended by the addition of 
subsection 1 (c) (Act of March 25, 1926, 44 Stat, at L. 223), 
it is clear that what was desired by the amendment was to 
provide an additional way by which the States might tax 
national banks without discriminating against them [Con- 
gressional Record, vol. 67, pt. VI, pp. 5760, 5822, 6082- 
6089, 69th Congress, 1st ses. (1926)], and it is apparent 
from these debates that no greater discrimination against 
national banks in the matter of taxation was to be per- 
mitted under subsection 1 (c) than under any other methods 
provided by Rev. Stat., § 5219, by which the State might 
tax national banks. 

In construing the provisions of section 5219 enacted prior 
to the amendment of March 25, 1926, it has always been 
held that national banks may not be taxed by any method 
in a way which would discriminate against them and in 
favor of moneyed capital in the hands of institutions or 
persons, other than national banks, employed in substantial 
competition with any of the direct or incidental activities 
of national banks. First National Bank of Hartford v. 
Hartford, supra; Minnesota v. First National Bank of St. 
Paul, 273 U. S. 561; First National Bank v. Anderson, 
supra; Merchants National Bank v. Richfuond, 256 U. S. 635. 

The excise tax permitted by subsection 1 (c) of Rev. 
Stat. § 5219, specifically protects national banks only from 
discrimination by State taxation in favor of "other financial 
corporations." It does not, as, for instance, does subsection 
1 (6) of section 5219, protect national banks from discrimi- 
nation by taxation in favor of moneyed capital in the hands 
of individual citizens. What is meant by "other financial 



324 OPINIONS OF THE ATTORNEY-GENERAL. 

corporations" in subsection (c) is therefore unquestionably 
corporations employing moneyed capital in substantial 
competition with any phase of the business of national 
banks, including not only State banks and private banks 
but also corporations engaged substantially in conducting 
the loan and investment features of banking in making 
investments by way of loan, discount, or otherwise in notes, 
bonds, or other securities with a view to sale or repayment 
and investment. See First National Bank v. Anderson, 
supra, 348. 

It was decided in Mercantile Bank v. New York, 121 
U. S. 138, 161, that savings banks were not engaged in 
substantial competition with national banks. The decision 
is broad enough to include insurance companies, co-operative 
banks and credit unions in the same classification. Al- 
though it is an open question whether this decision would 
now be followed, because of the growth of the activities of 
national banks, it must be deemed to be law until expressly 
overruled, and it is the duty of the Commissioner to fix 
the rate, under G. L., c. 63, § 2, as amended, according to 
the method hereinafter indicated, excluding from considera- 
tion as "other financial corporations" co-operative banks, 
savings banks and insurance companies. 

Rev. Stat., § 5219, requires that the burden upon national 
banks of any tax assessed must not be greater than the 
burden upon ''other financial corporations" of a similar 
tax imposed upon them nor greater than the burden of the 
highest similar tax imposed upon mercantile, manufac- 
turing and business corporations doing business within the 
Commonwealth. First should be determined the total net 
income (i'n the case of corporations doing business outside 
the Commonwealth that allocable to Massachusetts) of 
corporations coming within the definition of "other financial 
corporations." Then should be found the amount of tax, 
not including interest or penalties, actually paid under 
chapter 63 by such "other financial corporations," exclusive 
of any compensation or adjustment for credits or deductions. 



ARTHUR K. READING, ATTORNEY-GENERAL. 325 

In my opinion, the rate of tax under section 2 of G. L., c. 63, 
is the percentage which the net tax thus determined is of 
the total net income, as above determined. 

The burden of the tax on the corporation is the amount 
which the corporation actually has to pay out on account of 
the tax assessed under the chapter, and the rate is the rela- 
tion of that amount to the basis or measure of the tax, the 
total net income. A penalty for late payment, or interest 
because of late payment, is not part of the tax burden but 
is imposed for some other reason, and should not be taken 
into account in determining what the rate of tax burden is, 
despite the provisions of G. L., c. 63, § 49. For the same 
reason, deductions made in determining the basis of the tax 
should not be added to the amount of the net tax in deter- 
mining the rate, for they decrease the burden of the tax 
(in computing which they are allowed), and it is by that 
burden that the rate, within the meaning of Rev. Stat., 
§ 5219, is to be measured. 

It is also provided both by Rev. Stat., § 5219, and by 
G. L., c. 63, § 2, as amended, that the rate assessed on banks, 
namely, that assessed on other financial corporations, shall 
not be higher than the highest of the rates assessed under 
chapter 63 upon mercantile, manufacturing and business 
corporations. The only clear classification drawn by the 
Legislature among mercantile, manufacturing and business 
corporations as to the rate of tax under chapter 63 is between 
domestic and foreign corporations. I do not agree with 
the proposition that, because of the deduction from net 
income under section 38A of machinery used in manu- 
facturing, there is a separate classification of manufacturing 
corporations, or that there is a separate classification because 
of the provisions of section 32A. These provisions of the 
statute merely provide for a compensating variation from 
the general situation under the chapter, which is too slight 
to indicate any legislative intent to classify certain types of 
corporations separately. Therefore, grouping together all 
domestic corporations coming within the group of "business 



326 OPINIONS OF THE ATTOENEY-GENERAL. 

corporations" as classified by chapter 63, and grouping to- 
gether all foreign business corporations, the rate for each 
group should be determined as in the case of "other financial 
corporations," according to the method outlined above, 
the total net tax actually paid being taken without any 
addition to its total amount because of deductions in the 
basis of the tax, of dividend credits against the tax, or of 
penalties or interest. If the higher of these two rates thus 
determined is lower than the rate determined for "other 
financial corporations" by the method indicated above, that 
higher business corporation rate should be taken as the rate 
for the assessment of the bank tax under section 2 of G. L., c. 
63; otherwise the rate already determined for "other finan- 
cial corporations" will prevail. 

In your request for an opinion you ask what figures for 
what years shall be taken in fixing the rates according to 
the method outhned above. You have informed me that it 
is impractical to take the tax figures for the year in which 
the tax is assessed, because of their incompleteness. In 
my opinion, the figures taken in determining the rate should 
be the most recent available statistics which are substantially 
complete, making adjustment wherever possible in these 
figures for any changes which may have become apparent 
from more recent data not entirely complete. In most 
cases, however, I beheve that any such adjustment will be 
impractical, and the general rule to follow would be to take 
the figures for the most recent year in which the returns are 
complete. 



arthur k. reading, attorney-general. 327 

Constitutional Law — Governor — Pardons — 
Insane Person. 

The power to pardon does not in itself contain authority to release one committed 

as insane. 



You have asked my opinion as to whether Your Excel- oovemoi 
lency may grant a pardon to a man confined in an insane june 21. 
institution. With your request for an opinion you transmit 
the petition, reports and letters in the specific case of a per- 
son who was convicted of murder in the second degree and 
sentenced to the State Prison in 1911, but was transferred 
to the Bridgewater State Hospital in 1915 as an insane 
person, and is still confined there as such. 

I assume that your request intended to include the specific 
case, and my opinion is rendered accordingly. 

Mass. Const., pt. 2nd, c. II, § I, art. VIII, provides: — 

The power of pardoning offences, except such as persons may be con- 
victed of before the senate by an impeachment of the house, shall be in 
the governor, by and with the advice of council: but no charter of pardon, 
granted by the governor, with advice of the council before conviction, 
shall avail the party pleading the same, notwithstanding any general or 
particular expressions contained therein, descriptive of the offence or 
offences intended to be pardoned. 

This is the only warrant in the Constitution enabling the 
Executive to mitigate or remit sentences imposed by the 
courts as penalty for crime. 

The words of the Constitution contain a grant of authority 
which is clear in its terms, and which has long been recog- 
nized by the courts as an executive prerogative. Kennedy's 
Case, 135 Mass. 48; Opinion of the Justices, 210 Mass. 609; 
Juggins v. Executive Council, 257 Mass. 386. 

It follows, therefore, that, unless in the specific case the 
original status of the petitioner has been changed by his 
commitment to the Bridgewater State Hospital and his 
continued confinement there. Your Excellency may pardon 
him. 

This is not a case in which a defendant has been com- 



328 OPINIONS OF THE ATTORNEY-GENERAL. 

mitted to an insane hospital because of an acquittal by the 
jury by reason of insanity, after trial on an indictment for 
murder or manslaughter. In such instances, whether a 
defendant be sane or insane, the test of the extent of the 
power of the Executive, with the advice and consent of the 
Council, hinges upon the question whether, after investiga- 
tion by the Department of Mental Diseases, his discharge 
will cause danger to others. G. L., c. 123, § 101; Gleason v. 
Inhabitants of West Boylston, 136 Mass. 489. 

The present case presents the duofold aspect of a person 
under sentence of life imprisonment and, in addition, legally 
insane. 

G. L., c. 123, § 102, provides: — 

The department shall designate two persons, experts in insanity, to 
examine prisoners in the state prison, the Massachusetts reformatory, 
the prison camp and hospital or the reformatory for women, alleged to 
be insane. If any such prisoner appears to be insane, the warden or super- 
intendent shall notify one or both of said experts, who shall, with the 
physician of such penal institution, examine the prisoner and report the 
result of their investigation to the superior court of the county where 
such penal institution is situated or to the appropriate district court 
mentioned in the following section. 

G. L., c. 123, § 103, provides: — 

The superior court upon a report under the preceding section, if it 
considers the prisoner to be insane and his removal expedient, shall issue 
a warrant, directed to the warden or superintendent, authorizing him to 
cause the prisoner, if a male, to be removed to the Bridgewater state 
hospital, and, if a female, to be removed to one of the state hospitals for 
the insane, there to be kept until, in the judgment of the superintendent 
and the trustees of the institution to which the prisoner has been com- 
mitted, he should be returned to priso7i. 

Were the sentence for a term of years, the period of con- 
finement in the State hospital would be credited to the de- 
fendant, and if he recovered before his sentence expired he 
would be returned to the prison from which he was removed, 
in order that he might serve out the remainder of his sen- 
tence. Le Donne, petitioner, 173 Mass. 550. 



ARTHUR K. READING, ATTORNEY-GENERAL. 329 

In order to justify a defendant's return to prison and the 
credit to him of the period of time during which he was 
receiving treatment in a hospital, it is reasonable to conclude 
that the original sentence has always been in effect. 

Consequently, the Governor, with the advice and consent 
of the Council, could pardon the defendant. Such a pardon 
would remove from him the onus of the sentence of life 
imprisonment imposed after his conviction for murder in 
the second degree, but would not serve to release him from 
the Bridgewater State Hospital. 

A comphance with G. L., c. 123, §§ 88-94, would accom- 
pUsh this latter result. These sections in no way relate to 
the power of the Executive. 



June 21. 



Treasurer and Receiver General — Deposit — 
Insurance — Trust Fund. 

A deposit made, under provisions of law, with the Treasurer and Receiver 
General as an emergency fund by an assessment insurance company consti- 
tutes a trust for the benefit of the policyholders of such company, as existing 
at the time of the deposit, and may not be applied, upon the transformation 
of the company into an ordinary life insurance company, for the benefit of new 
policyholders of the company as reorganized. 

You have asked my opinion as to whether certain secu- Jr'Vn'dRe-''*"'^' 
rities held by your Department in trust may be withdrawn, ceivercenerai. 

I am advised that the securities in question, amounting 
to $50,000, or others for which they have been exchanged 
from time to time, were set apart as an emergency fund by 
the Boston Mutual Life Association, an assessment insur- 
ance company, under the provisions of St. 1890, c. 421, § 14, 
that under the provisions of St. 1899, c. 229, permitting life 
associations to transact business as life companies, the 
Mutual Life Association became the Boston Mutual Life 
Insurance Company; and that some of the pohcyholders of 
the old association did not exchange their old policies for 
new ones of the life company, and have been for the most 
part carried by the life company on the plan of renewable 



330 OPINIONS OF THE ATTORNEY-GENERAL. 

term insurance, under St. 1899, c. 299, § 4, with increasing 
yearly cost to the insured. 

The fund as originally established, under the name of an 
emergency fund, constituted a trust for the payment of death 
and disability claims for the benefit of the policyholders of 
the assessment company, some of whom, I am informed, 
are still living, and are carried as a separate group by the 
new life company into which the assessment company was 
changed. The fund is still charged with the purposes of 
the trust so established, one of which is the application of a 
designated excess of the minimum amount required to be 
held in the trust fund to the reduction of assessments upon 
the old policyholders. Sums to be so applied to the fore- 
going or other purposes of the trust, all of which are similar 
in character, may be drawn by a requisition upon the Treas- 
urer and Receiver General signed by two-thirds of the direc- 
tors and indorsed by the Commissioner of Insurance, setting 
forth that such sums are to be used for the purposes of the 
trust. 

St. 1899, c. 229, provided for the transaction of the business 
of the old assessment life company to be carried on as a 
general life insurance business under the statute appli- 
cable to life insurance companies. The act specifically au- 
thorized the company, under the new scheme, "to carry 
out in good faith its contracts heretofore made with its 
members," and repealed the provisions of St. 1890, c. 421. 

The fund created by the old Boston Mutual Life Asso- 
ciation for the benefit of its members paying upon the 
assessment system is stiU charged with the trust established 
in connection therewith under the terms of St. 1890, c. 421, 
§ 14, and the directors of the new company may deal with it 
only in the manner and for the purposes which the directors 
of the old association might have dealt with it. Its surplus 
above the necessary minimum, which is required to be kept 
while any of the old members are still carried on the renew- 
able term basis, may be drawn from the treasury of the 
Commonwealth and applied to the purposes mentioned in 



ARTHUR K. READING, ATTORNEY-GENERAL. 331 

St. 1890, c. 421, § 14, but to no others. If, as was stated in 
a communication to you by the insurance company, which 
you have submitted to me, "the pohcies of the association 
now in force are continued on the plan of renewable term 
insurance with increasing yearly cost to the insured," some 
portion of the surplus might well be drawn and appUed to 
lessening such yearly cost. 

The specific fund held by you, as to which you inquire, 
may not at the present time be withdrawn except in the 
manner and form and to the extent described in St. 1890, c. 
421, § 14, which, though now repealed, estabUshed the trust, 
its terms and uses. 



Referendum — Appointment of Assistant Registers 
OF Probate for Middlesex County. 

A law is either excluded from, or is subject to, the referendum in its entirety. 

A law which in any way deals with the powers of courts is not subject to the refer- 
endum. 

A law is not excluded from the operation of the referendum for the reason that its 
operation is restricted to a particular town, city or other political subdivision, 
unless the operation of the entire act is so restricted. 

A law conferring upon the judges of probate for Middlesex County the power to 
appoint a third and a fourth assistant register for said county relates to the 
powers of courts, and is not subject to the referendum. 

You have asked my opinion as to whether St. 1927, c. 198, 7r°|\J'^ ^"'"P" 
may be the subject of a referendum petition, in order that j^^^-'^o. 
you may determine the time at which the salary of the fourth 
assistant register of probate for the County of Middlesex, 
appointed under the statute, commences. 

St. 1927, c. 198, reads as follows: — 

An Act to Provide an Additional Assistant Register of 
Probate for the County of Middlesex. 
Section 1. Section twenty-five of chapter two hundred and seven- 
teen of the General Laws, as amended by section three of cliapter one 
hundred and sixty-four of the acts of nineteen hundred and twenty-three, 
is hereby further amended by inserting after the word "third" in the 
second line the words: — and a fourth, — and by striking out, in the fourth 



332 OPINIONS OF THE ATTORNEY-GENERAL. 

line, the word "He" and inserting in place thereof the word: — They, — 
so as to read as follows: — Section 25. The judges of probate for Middle- 
sex county may appoint a third and a fourth assistant register for said 
county, who shall hold office for three years unless sooner removed by the 
judges. They shall be subject to the laws relative to assistant registers. 

Section 2. Section thirty-five of said chapter two hundred and 
seventeen, as amended by section two of chapter three hundred and 
eighty of the acts of nineteen hundred and twenty-six, is hereby further 
amended by striking out the last paragraph and inserting in place thereof 
the following new paragraph : — Second, third and fourth assistant 
registers, sixty, fifty-five and fifty per cent, respectively, of the salaries 
paid their respective registers, — so as to read as follows: — Section 35. 
The salaries of registers and all assistant registers shall be paid by the 
commonwealth, and, except in Suffolk county, shall be as follows : 

Registers, seventy-five per cent of the salaries paid the judges of their 
respective counties. 

Assistant registers, sixty-six and two thirds per cent of the salaries 
paid their respective registers, except that in a county in which there is 
more than one judge of probate the salaries of assistant registers shall be 
seventy-five per cent of the salary of the register. 

Second, third and fourth assistant registers, sixty, fifty-five and fifty 
per cent., respectively, of the salaries paid their respective registers. 

Section 2 of this act makes no change in the lav^ existing 
at the passage of the act except in so far as it provides for 
the salaries of fourth assistant registers. 

The act was approved April 1, 1927. After the expira- 
tion of thirty days from that date the judges of probate 
for Middlesex County appointed a fourth assistant register 
of probate for that county, who has since performed the 
duties of his office. 

The question presented is whether or not the fourth 
assistant register so appointed is legally competent to act 
as an assistant register prior to the expiration of the ninety- 
day period which must elapse before a law subject to the 
referendum becomes effective. If the act is subject to the 
referendum it does not become effective until after the 
expiration of ninety days from its passage. If, on the other 
hand, it is not subject to the referendum it becomes effective 
after the expiration of thirty days from its passage. If 
subject to the referendum it does not become effective prior 



ARTHUR K. READING, ATTORNEY-GENERAL. 333 

to July 1, 1927, and therefore the appointment may not 
legally be made until that date. Under the provisions of 
G. L., c. 215, § 61, which state that "no court shall be held 
by adjournment or otherwise unless the register, assistant 
register or a temporary register is present," it would seem 
that any session of the Probate Court held for Middlesex 
County prior to July 1, 1927, at which no register or assist- 
ant register except the fourth assistant register appointed 
by the judges under this act was present would not have 
been a proper session of the court, and that its decrees 
and orders rendered during such session would be void and ' 
of no effect if St. 1927, c. 198, is subject to the referendum. 
It is necessary, therefore, to determine whether the act is 
subject to, or excluded from, the referendum. 

Mass. Const. Amend. XLVIII, The Referendum, pt. Ill, 
§ 2, is as follows : — 

Section 2. Excluded Matters. — No law that relates to religion, 
religious practices or religious institutions; or to the appointment, quali- 
fication, tenure, removal or compensation of judges; or to the powers, 
creation or abolition of courts; or the operation of which is restricted to 
a particular town, city or other political division or to particular districts 
or localities of the commonwealth; or that appropriates money for the 
current or ordinary expenses of the commonwealth or for any of its de- 
partments, boards, commissions or institutions shall be the subject of a 
referendum petition. 

The only pertinent clauses of the amendment which might 
exclude the act from the referendum are, — "no law that 
relates ... to the powers, creation or abolition of courts" 
and "no law . . . the operation of which is restricted to a 
particular town, city or other political division or to par- 
ticular districts or localities of the commonwealth." 

It may be well to consider first the question as to whether 
a part of a law may be subject to the referendum and an- 
other part not so subject. The word "law" as used in the 
amendment connotes an act of the Legislature, approved 
by the Governor, regarded as an entity. The word has 
no application to a single part or section of such an act 



334 OPINIONS OF THE ATTORNEY-GENERAL. 

taken by itself. That the word is to be so construed is 
made clear by an examination of the proceedings of the 
Constitutional Convention, by which the initiative and 
referendum provisions were framed. It follows that a 
particular section of an act may not of itself be the subject 
of a referendum. 

As to the first section of St. 1927, c. 198, it seems that 
such portion thereof as authorizes the judges to appoint a 
fourth assistant register clearly deals with "the powers 
... of courts," and such portion, if it stood alone, would 
• be excluded from the referendum. That part of section 1 
which prescribes the tenure and powers of the fourth assist- 
ant register does not, in my opinion, deal with powers of 
courts and therefore, if it stood alone, would not be excluded 
on that ground. I do not think that matters relating to 
the tenure, powers and compensation of registers of probate 
may properly be included in the phrase "powers ... of 
courts," within the meaning of these words as used in the 
amendment. 

The whole of section 1, if it stood alone, would be ex- 
cluded from the operation of the referendum for the reason 
that its operation is restricted to a particular political divi- 
sion of the Commonwealth, namely, Middlesex County. 

Section 2, in my opinion, if it stood alone, would be sub- 
ject to the referendum. It re-enacts the earlier provisions 
of law as to salaries of registers, assistant registers, and 
second and third assistant registers and adds only the 
salary of fourth assistant registers. Its effect is not con- 
fined to the fourth assistant register of Middlesex County 
but is of general application to all fourth assistant registers 
in the entire Commonwealth with the exception of Suffolk 
County, for which county there is special legislation on this 
matter. It is true that there are at present no other fourth 
assistant registers in the Commonwealth, except in Suffolk, 
and that therefore the act affects no one at this time but 
the fourth assistant register provided for therein. On the 
other hand, the section fixing his salary is general in its 



ARTHUR K. READING, ATTORNEY-GENERAL. 335 

terms, and would apply to such other fourth assistant 
registers as may in the future be appointed in any county 
in the Commonwealth, except Suffolk. It is impossible, 
therefore, to construe section 2 as being "restricted to a 
particular town, city or other political division or to par- 
ticular districts or locahties of the conmionwealth." 

We have, therefore, section 1, a part of which, if standing 
alone, would be excluded from the referendum on one 
ground and all of which, if standing alone, would be ex- 
cluded on another ground. We have also section 2, which, 
if standing alone, clearly would be subject to the referendum. 
In view of the fact that a law in its entirety is either ex- 
cluded from, or subject to, the referendum, it becomes 
necessary to determine whether the excluded portion will 
exclude the entire act from the referendum or whether the 
included portion will render the whole act subject to the 
referendum. 

No authoritative decision on this question has been 
called to my attention, and the amendment must be inter- 
preted on broad and general principles. It states that no 
law that "relates to powers ... of courts" shall be the 
subject of a referendum petition. It is not expressly stated 
whether the law must "relate" entirely to powers of courts 
or merely in part. In my opinion, if the law deals with 
powers of courts then it is such a law as is excluded from 
the referendum. One purpose of the insertion of "Section 
2. Excluded Matters" in the amendment was to preserve 
laws with reference to the powers of courts immune from 
the referendum, and the act in question is clearly concerned 
with the power of the court to appoint a fourth assistant 
register. The title of the act, as stated above, tends to 
indicate that this was the intent of the Legislature. 

It cannot well be said that the second possible ground of 
exemption would of itself exclude the act from the referen- 
dum. The amendment states that "no law . . . the opera- 
tion of which is restricted to a particular town, city or other 
political division . . . shall be the subject of a referendum 



336 OPINIONS OF THE ATTOENEY-GENERAL. 

petition." The words "the operation of which is restricted 
to" seem to imply that the entire scope of the law must be 
so restricted. "Restricted" differs from the word "relates" 
in this respect, in that the word "relates" does not neces- 
sarily compel an inference that every part of the act must 
be concerned with the powers of courts, whereas the words 
"the operation of which is restricted to" imply that the 
entire act must be so limited. 

My opinion, therefore, is that the act is not subject to 
the referendum, for the reason that it relates to an excluded 
matter, namely, the powers of courts. 



Motor Vehicles — Registration — Partnership. 

Upon dissolution of a partnership by the death of one of the partners and the 
purchase of all outstanding interests by the surviving partner, the latter may 
not operate a motor vehicle which was the property of the partnership unless he 
re-registers it in his own name. 



m?ssionerTf" You ask my opinion as to whether one Antonio 0. Pajer 

Public W 

1927 
July 13. 



1927 "'^ ^' may continue to operate certain motor busses without 



re-registering them. 

I understand the facts to be that for some indefinite 
period prior to 1927 Pajer and one Harvey H. Colhns were 
co-partners doing business under the firm name and style of 
Springfield-New London Coach Company, with places of 
business in New London, Connecticut, and Springfield, 
Massachusetts. January 1, 1927, these two men registered 
three motor busses with the Registrar of Motor Vehicles 
under the name "Springfield-New London Coach Company 
by Antonio O. Pajer." Since that date Colhns has died and 
Pajer has bought Collins' interest in the firm from Collins' 
estate and is continuing the business under the firm name 
as sole owner. 

At the time of the original registration of the vehicles by 
the partnership it was not improper for the application for 
registration to be made under the partnership name, signed 
by one only of the partners, the fact that the owners were a 



ARTHUR K. READING, ATTORNEY-GENERAL. 337 

co-partnership being made plain in accordance witli the 
customary form of apphcation used by the Registry of 
Motor Vehicles. See VIII Op. Atty. Gen. 1 1 8. The partner- 
ship no longer exists. Death of a partner dissolves the 
existence of a co-partnership except under unusual terms 
in the partnership agreement, which I assume did not exist 
in the instant case and which would be rendered immaterial, 
as you advise me that the surviving partner has purchased 
all rights in the partnership which may have existed in the 
deceased's representatives. Marlett v. Jackman, 3 Allen, 
287. The fact that the present owner was the member of 
the former partnership who signed the application for 
registration by such co-partnership gives no information 
to the public that he is now the sole owner of the vehicles. 
Indeed, the application and registration as they now stand 
furnish an entirely erroneous statement as to the present 
ownership. One purpose of the statute, G. L., c. 90, was 
to give persons injured by a motor vehicle redress by en- 
abling them to ascertain easily the name of the owner of 
such a vehicle. Fairbanks v. Kemp, 226 Mass. 75; Bacon 
V. Boston Elevated Ry. Co., 256 Mass. 30. 

G. L., c. 90, § 2, as amended, in its fourth paragraph 
provides, in part : — 

Upon the transfer of ownership of any motor vehicle or trailer its 
registration shall expire, and the person in whose name such motor vehicle 
or trailer is registered shall forthwith return the certificate of registration 
to the registrar with a written notice containing the date of the transfer 
of ownership and the name, place of residence and address of the new 
owner. 

The proviso added to the fourth paragraph of section 
2 by St. 1924, c. 427, continuing the registration for a period 
after the death of an owner, even if it were applicable with 
relation to the death of a member of a co-partnership, is 
immaterial in the instant case, for the surviving partner, 
by purchase of all outstanding interests of the deceased 
partner, is now the sole owner, and there has been' such 



338 OPINIONS OF THE ATTORNEY-GENERAL. 

transfer of ownership of the vehicles as has caused the 
registration to expire, and the present owner, Mr. Pajer, 
may not operate until he has received a new registration. 



Parent and Child — Adoption — Duty to support 
Natural Parent. 

Adoption of a minor abrogates the latter's duty to pay for the support of its natural 
father under G. L., c. 273, § 20. 

m?ss\one?°.^' ^^^ request my opinion as to whether a daughter is 
Mental Dis- legally liable for the support of her father, duly committed 
jii\y^i4. to a State institution and confined there as an insane person, 

such daughter having been legally adopted by a maternal 
uncle when she was a young child. In my opinion, a daugh- 
ter thus adopted as a child is in no way responsible for the 
support of her actual parent. 
G. L., c. 210, § 6, provides: — 

If the court is satisfied of the identity and relations of the persons, 
and that the petitioner is of sufficient ability to bring up the child and 
provide suitable support and education for it, and that the child should be 
adopted, it shall make a decree, by which, except as regards succession to 
property, all rights, duties and other legal consequences of the natural 
relation of child and parent shall thereafter exist between the child and 
the petitioner and his kindred, and such rights, duties and legal conse- 
quences shall, except as regards marriage, incest or cohabitation, termi- 
nate between the child so adopted and his natural parents and kindred 
or any previous adopting parent; but such decree shall not place the 
adopting parent or adopted child in any relation to any person, except 
each other, different from that before existing as regards marriage, or as 
regards rape, incest or other sexual crime committed by either or both. 
The court may also decree such change of name as the petitioner may 
request. If the person so adopted is of full age, he shall not be freed by 
such decree from the obligations imposed by section six of chapter one 
hundred and seventeen and section twenty of chapter two hundred and 
seventy-three. 

This section has always been construed as putting an 
adopted child, for all legal purposes, with certain specified 
exceptions mentioned in the section, in the place of an actual 



ARTHUR K. READING, ATTORNEY-GENERAL. 339 

child with respect to the adoptive parent, and as terminat- 
ing between the child so adopted and his natural parents 
and kindred all legal consequences, except those specially 
mentioned. See Boutlier v. Maiden, 226 Mass. 479, 484, 
and cases therein cited. 

The only exception under section 6 which could in any 
way be construed to impose upon a child thus adopted the 
obhgation to support its natural parent is contained in the 
last sentence of section G. This exception, however, applies 
only "if the person so adopted is of full age," and only in 
that event is the adopted child not freed by the decree of 
court allowing the adoption from the obligations of G. L., 
c. 273, § 20. In the case you state the child adopted was 
not of full age at the time of the adoption, and therefore, 
the case not coming within the strict terms of the exception, 
the child is in no way liable for the support of her natural 
parents. 

It is, of course, clear that the liabihty imposed by G. L., 
c. 123, § 96, upon certain relatives of inmates of State in- 
stitutions, including children of such inmates, is not one of 
the consequences of the relation of child and parent within 
any of the exceptions contained in G. L., c. 210, § 6, and 
hence that liability is abrogated by the decree of adoption. 



State Examiners of Plumbers — Revocation of 

Licenses. 

The State Examiners of Plumbers may not revoke or suspend plumbing licenses 

except as provided in G. L., c. 142, §§ 6 and 7. 
G. L., c. 142, § 4, which authorizes the State Examiners of Plumbers to make such 

rules and regulations as they deem necessary for the proper performance of 

their duties, does not confer upon them the power to revoke or suspend such 

licenses. 

You have asked my opinion as to whether or not the State to the 

Director of Reg- 

Examiners of Plumbers may properly adopt the following '^'/J^g?""" 
rules: — J"'y ^»- 

1. Any master plumber who the Board finds has loaned, transferred 
or assigned his license to any other party with the intent that that party 



340 OPINIONS OF THE ATTORNEY-GENERAL. 

to whom such license was loaned could function as a master plumber or 
work as a journeyman plumber under that license, may have said license 
suspended for a period of thirty days for the first offense, for a period of 
three months for a second offense, and in the event of a third offense said 
license may be revoked permanently. 

2. In case the holder of a license or certificate violates any statute, 
ordinance, by-law, rule or regulation, relative to plumbing, on the request 
of the inspector of buildings or board of health of the town where such 
violation is committed, the Board of Examiners of Plumbers may revoke 
the license of the plumber, in accordance with G. L., c. 142, § 7. 

I am of the opinion that the Examiners have not the power 
to adopt the first of the above rules. The power to suspend 
or revoke licenses of this character must be expressly or im- 
pliedly given to the particular board by statute. Lowell v. 
Archambault, 189 Mass. 70. Except for sections 6 and 7 
there is nothing in the plumbing statute, G. L., c. 142, which 
can be construed as giving tliis power to the Examiners, 
unless it be found in section 4, wliich provides as follows : — 

The examiners may make such rules as they deem necessary for the 
proper performance of their duties, which shall take effect when approved 
by the department of public health. 

The balance of tliis section deals with the duties of the Ex- 
aminers with reference to the giving of examinations and the 
issuing of licenses. 

I am of the opinion that the power to make rules and regu- 
lations given by this section does not include the power to 
make rules and regulations concerning the revocation or 
suspension of licenses after they are issued. This view is 
strengthened by the fact that section 6 of said chapter 142 
provides expressly that the Examiners, after notice and hear- 
ing, may revoke the license of a licensee violating any regula- 
tion relative to plumbing who has previously been convicted 
of a like offense. This section restricts the right to revoke 
to violation of "regulations relative to plumbing," which 
words, in my opinion, connote regulations which have to do 
with the actual physical work of plumbing and have no rela- 
tion to the general conduct of plumbers. It is to be noted 



ARTHUR K. READING, ATTORNEY-GENERAL. 341 

that the Board may not revoke a Hcense under this section 
unless it also appears that the licensee has been previously 
convicted of a like offense. 

Section 7 of said chapter 142 provides as follows : — 

If in the opinion of such inspector of buildings, if any, otherwise of 
the board of health, of a town, the holder of a license or certificate violates 
any statute, ordinance, by-law, rule or regulation relative to plumbing, 
the said inspector or board of health of the town where such violation is 
committed may request the examiners to forbid such holder, for not more 
than thirty days, to engage in business in such town as a master plumber 
or to work as a journeyman. After notice and hearing both parties, the 
examiners may so forbid such holder and shall give notice of their decision 
to each of the parties interested. 

It may be seen, therefore, that the Legislature has ex- 
pressly provided for revocation under section 6 in certain 
cases and for a limited suspension under section 7. The right 
to revoke or suspend under these sections is closely limited 
and confined to certain enumerated circumstances. It is 
also to be noted that in many instances the Legislature has 
specifically given a general power to revoke to boards and 
departments similar in character to the State Examiners of 
Plumbers. A notable example of this may be found in G. L., 
c. 141, § 4, which section gives to the State Examiners of 
Electricians the right to revoke certificates for any sufficient 
cause. The absence of such a general power of revocation 
in chapter 142 and the fact that the chapter specifically pro- 
vides in sections 6 and 7 for revocation or temporary suspen- 
sion in certain limited cases, indicate that it was not the 
intent of the Legislature to confer the right to adopt such a 
rule as rule number 1 above. I am therefore of the opinion 
that the State Examiners of Plumbers under existing law 
have no power to issue rule number 1 . 

What has been said concerning the first rule covers the 
second rule submitted in your request. The Examiners 
must limit their action under section 7 to the words of the 
section, and may not adopt a rule except in so far as conforms 
strictly to said section. 



342 opinions of the attorney-general. 

Reformatory for Women — Sentence. 

A female convicted of a crime punishable by imprisonment in the State Prison may 
be held in the Reformatory for Women for a period of five years, irrespective 
of the existence of a lesser alternative sentence. 

S^ParoS""*^ You have asked my opinion as to whether a certain 
Jiiy^is. woman committed to the Reformatory for Women can be 

legally held for a five-year indefinite sentence, or if she may 
be held for two years only. 

You have submitted to me a letter written to your Board, 
which you state "very plainly sets the case out," and which I 
assume correctly states all facts necessary to a proper con- 
sideration of the subject matter. These facts are as fol- 
lows : — 

According to the records of the Roxbury Court a woman was com- 
mitted to the Reformatory for Women on the 9th day of July, 1926. The 
record does not indicate any term of service and apparently was imposed 
under the provisions of G. L., c. 272, § 16. The Roxbury Court enter- 
tains jurisdiction in accordance with the provisions of G. L., c. 218, § 26, 
and, having entertained jurisdiction, its power to impose penalties were 
circumscribed by the provisions of G. L., c. 218, § 27, to the effect that 
"they (Roxbury Court) may not impose a sentence to a jail or house of 
correction for a longer term than two years or to the State Prison for 
any term." 

G. L., c. 279, reads, in part, as follows: — 

Section 16, A female, convicted of a crime punishable by imprison- 
ment in a jail or house of correction, may be sentenced to the reformatory 
for women. 

Section 17. The court or trial justice, imposing a sentence to the 
reformatory for women, shall not prescribe the limit of the sentence 
unless it is for more than five years. 

Section 18. A female sentenced to the reformatory 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; if sentenced to said reformatory for any 
other offence, she may be held therein for not more than two years. 

Section 19. The sentence to imprisonment of a female convicted of 
a felony shall be executed in the reformatory for women; or the court 
imposing sentence in such a case may impose the sentence in a jail or 



ARTHUR K. READING, ATTORNEY-GENERAL. 343 

house of correction provided by law in the case of male prisoners if it does 
not exceed two and one half years. 

It is plain from the provisions of section 18 that a female 
sentenced to the Reformatory for Women for a felony may 
be held for not more than five years, but if she be so sentenced 
for a misdemeanor other than larceny, she may not be held 
for more than two years. Accordingly, it becomes neces- 
sary to determine whether the sentence in the instant case 
was for a misdemeanor or a felony. 

A felony is defined by G. L., c. 274, § 1, to be "a crime 
punishable by death or imprisonment in the state prison." 

According to the statement of facts presented to me, this 
woman was convicted of an offense under G. L., c. 272, § 16, 
the punishment for which may be by imprisonment in the 
State Prison. Her offense, then, comes within the class of 
crimes declared to be felonies by G. L., c. 274, § 1. The 
fact that the statutes provide that a lesser penalty may be 
imposed for the offense does not remove it from the class of 
crimes defined by the Legislature as felonies, because the 
punishment for the offense may be imprisonment in the 
State Prison. The fact that jurisdiction of the case was 
exercised by a district or municipal court judge, who has no 
authority to commit to State Prison but must fix one of the 
lesser forms of punishment which are prescribed as an 
alternative to imprisonment in the State Prison, does not 
affect the nature of the crime, which falls within the statu- 
tory definition of a felony. The judges of the district courts 
are given by the statute concurrent jurisdiction with the 
Superior Court over many felonies, with the provision that 
if they elect to assume such jurisdiction they may not im- 
pose the sentence of imprisonment in the State Prison. 
G. L., c. 218, § 26. Their election to exercise such jurisdic- 
tion, rather than merely to hold the defendant for the Grand 
Jury, does not affect the nature of the defendant's crime and 
make an offense which is defined by statute as a felony a 
misdemeanor. 

The opinion in Piatt v. Commonwealth, 256 Mass. 539, is 



344 OPINIONS OF THE ATTORNEY-GENERAL. 

to the effect that a sentence to the Reformatory for Women 
for a misdemeanor may be for the period of two years, under 
G. L., c. 279, § 18, even though such period is longer than 
the punitive term provided for the offense by the statute, 
and it would seem to be entirely consistent with the proposi- 
tion that a sentence to the Reformatory for Women for a 
felony may be for a longer period than that which a district 
court or other judge may impose as a punitive term. 

It follows from the foregoing that this defendant, who has 
been convicted of a crime which was punishable by im- 
prisonment in the State Prison, although such sentence was 
not actually imposed, is nevertheless "a female sentenced 
to the reformatory for women for a felony," and "may be 
held therein for a period of not more than five years." 



Department of Public Health — Tests for Water 
Supply — Trespass — Damage 

Members of the Department of Public Health and its agents may enter upon private 
land for the purpose of driving wells and making reasonable tests contemplated 
by the Resolves of 1927, c. 30, without rendering themselves liable for any 
action of trespass. 

If actual damage results, proceedings may lie against the Commonwealth, under 
G. L., c. 79, § 10. 

To the Com- You have called my attention to Resolves of 1927, chapter 

missioner of 

^1927 "''^'*^- 30, under which your Department is authorized and directed 
juiy^g. ^Q investigate and determine the best method of supplying 

with water the municipalities in the valley of the Merri- 
mack River, and especially to make such investigations as 
your Department may deem necessary, including pumping 
tests, to determine the practicability of securing an ad- 
ditional water supply in a certain area, described in the 
resolve, in the town of Chelmsford. You desire my opinion 
upon the following question : — 

Is the Department authorized to enter upon any private land for the 
purposes of driving wells and making the tests contemplated by the re- 
solve, the doing of which may include some damage to shrubs, trees and 



ARTHUR K. READING, ATTORNEY-GENERAL. 345 

grass, so that the members of the Department and its agents shall not 
render themselves liable for any action for trespass to any individual 
landowner upon whose land they may enter? 

Such action as you contemplate is clearly authorized by 
the said resolve, which reads, in part, as follows : — 

Said department (of public health) shall also make such investigations 
as it may deem necessary, including pumping tests, to determine the prac- 
ticability of securing an additional water supply for the city of Lowell 
and the North Chelmsford fire district . . . from the ground in the 
neighborhood of said (Merrimack) river on the north side adjacent to the 
present well fields of said city or from the ground in the area within that 
portion of the town of Chelmsford which lies between the Boston and 
Maine railroad and the southerly bank of said river northwest of the 
point where Stony brook joins said river and within approximately one 
mile of said junction. 

It is true that acts which would constitute trespass unless 
duly authorized by the Legislature will necessarily be com- 
mitted by your acting under this resolve, according to the 
common and the statutory law (particularly G. L., c. 266, 
§ 113). It is also true that the resolve does not expressly 
provide that the members of the Department and its agents 
shall not be liable for trespass, as has been provided in other 
somewhat similar statutes of this Commonwealth. G. L., 
c. 48, § 27 (forest wardens) ; G. L., c. 33, § 136 (mihtia). 

It is my opinion, however, that such acts on your part are 
justified by the authority given to the Department by the 
resolve and that this justification is a good defense to any 
action, civil or criminal, which may be brought against the 
members of the Department and its agents, while acting 
thereunder, on account of trespass. A statute such as this 
resolve clearly grants powers incidental to the carrying out 
of its provisions. 

In the case of Winslow v. Gifford, 6 Gush. 327, it was held 
that there was no trespass where certain commissioners, 
under authority of a statute, entered upon the lands of the 
plaintiff and made certain surveys with the view of ascer- 
taining the boundaries of a tract of land devoted to public 



346 OPINIONS OF THE ATTOKNEY-GENERAL. 

purposes, no compensation being provided for such apparent 
trespass. That case has been approved several times in 
Massachusetts and has been cited at length and with ap- 
proval by the United States Supreme Court in Montana 
Co. V. St. Louis Mining & Milling Co., 152 U. S. 160, 167. 

Other cases show it to be well settled in this Common- 
wealth that general rights in property have certain limita- 
tions, in that entry upon private property may be made 
under various circumstances by individuals and by public 
officers for the. protection of the pubUc welfare. When a 
general survey or exploration is made there is not neces- 
sarily an exercise of the right of eminent domain, nor perma- 
nent appropriation of property to the exclusive use of 
another. The entry may be made for a piu-pose deter- 
mined by the General Court to be for the public welfare, 
and is subject only to the limitations as expressed in the case 
of Winslow V. Gifford, supra, that it ''is reasonably neces- 
sary and that it is but a temporary one and accompanied 
with no unnecessary damage." 

My answer to your question, therefore, is in the affirma- 
tive as long as the acts which would otherwise constitute 
trespass are a reasonable carrying out of the purpose of the 
resolve. I am advised, moreover, that your Department 
has secured releases, under seal, from the landowner upon 
whose property most of the tests or acts set forth in the 
resolve are to be made by you. This fact would seem to 
render the question upon which you seek my opinion an 
academic one as to the land of such owner. 

It should be added, however, that the acts of the Depart- 
ment contemplated by the resolve are likely to go further 
than such as would be, if unauthorized, mere trespass, and 
that there may be actual and substantial damage to the 
lands entered upon by reason of the making of borings and 
weUs. In my opinion, the Commonwealth, but not the 
members of the Department, would be liable for such dam- 
ages, under G. L., c. 79, § 10. The resolve is a proper exer- 
cise of the sovereign power of the State to provide for and 



ARTHUR K. READING, ATTORNEY-GENERAL. 347 

regulate the water supply of its inhabitants, but private 
property may not be actually damaged without compensa- 
tion. While the members of the Department and its 
agents will not render themselves liable to any individual 
landowner upon whose land they perform the acts required 
by the resolve, proceedings by the owner may lie against 
the Commonwealth by virtue of G. L., c. 79, § 10, for any 
actual damage that may result. 



High Schools — Towns — Payment for Board of 
Pupils in Lieu of Transportation. 

Towns which do not maintain high schools may be required to make payments 
toward the board of their school children attending high schools in other towns, 
irrespective of the financial ability of the children or their parents. 

You have asked my opinion upon the two following TotheCom- 

missioner of 

questions relative to the application of G. L., c. 71, §§ 6 Education. 
and 7, as amended. Your questions are as follows: — Juiy2i. 

1. A boy living in the town of Dana, Massachusetts, which does not 
maintain a high school, attends the New Salem Academy, a public high 
school in the adjoining town of New Salem. As he lives more than three 
miles from this school and there is no public conveyance between his 
home and the school, it is convenient for him to board at the academy. 
He pays his board by working at the school. 

May the town of Dana, under these circumstances, pay to the parent 
or guardian of the boy money for board in lieu of transportation, under 
G. L.,c. 71, § 6 and § 7 as amended by St. 1923, c. 363, and be legally 
reimbursed by the State for the money expended for said board? 

2. If a pupil from Dana attends New Salem Academy under conditions 
similar to those already described, and pays his board at the academy in 
whole or in part by work done in a grocery store in New Salem, may the 
town of Dana, under these conditions, pay to the parent or guardian of 
the boy money for board in lieu of transportation and be legally reimbursed 
by the State for the money expended for said board? 

G. L., c. 71, § 6, as amended by St. 1921, c. 296, § 1, reads 
as follows : — 



348 OPINIONS OF THE ATTORNEY-GENERAL. 

If a town of less than five hundred families or householders, according 
to such census, does not maintain a public high school offering four years 
of instruction, it shall pay the tuition of any pupil who resides therein 
and obtains from its school committee a certificate to attend a high school 
of another town included in the list of high schools approved for this pur- 
pose by the department. Such a town shall also, through its school com- 
mittee, provide, when necessary, for the transportation of such a pupil 
at cost up to forty cents for each day of actual attendance, and it may 
expend more than said amount. The department shall approve the high 
schools which may be attended by such pupils, and it may, for this pur- 
pose, approve a public high school in an adjoining state. Whenever, in 
the judgment of the department, it is expedient that such a pupil should 
board in the town of attendance the town of residence may, through its 
school committee, pay toward such board, in lieu of transportation, such 
sum as the said committee may fix. 

If the school committee refuses to issue a certificate as aforesaid, appli- 
cation may be made to the department, which, if it finds that the educa- 
tional needs of the pupil in question are not reasonably provided for, 
may issue a certificate having the same force and effect as if issued by the 
said committee. The application shall be filed with the superintendent 
of schools of the town of residence, and by him transmitted forthwith to 
the department with a report of the facts relative thereto. 

G. L., c. 71, § 7, as now amended by said St. 1921, c. 296, 
§ 2, and St. 1923, c. 363, reads as follows: — 

If the expenditure per thousand dollars valuation from the proceeds 
of local taxation for the support of pubUc schools, made by any town of 
less than five hundred families or householders for the three town fiscal 
years preceding any school year, averaged more than four and not more 
than five dollars, the commonwealth shall reimburse the town for one 
half the amount paid by it during said school year for transportation or 
board in accordance with the preceding section. If said average was more 
than five and not more than six dollars, the reunbursement shall be for 
three fourths of said amount, or if said average was more than six dollars, 
the reimbursement shall be for the entire sum. Such reimbursement shall 
not be based on the excess of any amount above forty cents for each day 
of actual attendance of any pupil. If, however, in order to reach the 
high school, a pupil must travel three or more miles in some manner other 
than by steam or electric railroad, or other public conveyance, then the 
town shall be reimbursed three fourths of the excess, if any, that it expends 
for such pupil's transportation or board, or both, above forty cents, but 
not above eighty cents, for each day of actual attendance. Said excess 
reimbursement shall be paid only to towns in which said average expendi- 



ARTHUR K. READING, ATTORNEY-GENERAL. 349 

ture per thousand dollars valuation was more than five dollars. All 
expenditures for which reimbursement is claimed shall be subject to 
approval by the department. 

It has always been the poHcy of the Commonwealth to 
maintain a system of free education available to the children 
within its jurisdiction, and this general policy, as is obvious 
from G. L., c. 71, as amended, now includes free high school 
education. 

When a town which, under provisions of law, might or- 
dinarily be required to maintain a high school does not so 
maintain one, it is called upon to pay the tuition of such of 
its children as are certified and approved by the proper 
authorities as fit subjects for high school education at a 
high school in another town approved by your Department. 
Moreover, when it is deemed expedient by your Depart- 
ment that such children, or any of them, should board in 
the town where they are in fact attending high school, the 
town of residence is to pay toward such board, in lieu of 
transportation, to the other town such sum as the school 
committee may fix. Further provision is made for reim- 
bursement to the town of a portion of the money so expended 
for transportation or board. 

There is nothing in the statute which indicates that a dis- 
tinction is to be made between school children who are able 
to and do pay for their board in the high school outside 
their own town and those who are not able to or do not do 
so. To have so provided would have been to create a dis- 
crimination based upon wealth or earning capacity on the 
part of children, a discrimination entirely repugnant to the 
spirit of our laws and to the provisions of the particular 
chapter under consideration. It is not provided in G. L., 
c. 71, §§ 6 and 7, that the town must necessarily pay the 
money which it is required to expend for the benefit of a 
child in lieu of transportation directly to the child or to its 
parent. It may, and very properly might, make arrange- 
ments to pay the sum which it is called upon to disburse 
towards the child's board directly to the person to whom 



350 OPINIONS OF THE ATTORNEY-GENERAL. 

it is due. To the amount of such sum so paid by the town of 
residence, the mode of determining the amount thereof 
being estabhshed by the statute, the child or its parents will 
be relieved to the extent that the payments now made by 
the child, either by money or its equivalent, are released 
for some other purpose, presumably a purpose connected 
with the child's welfare. It is not the intent of the statute 
that towns shall be relieved from the duty to make pay- 
ments for the benefit of a high school child by reason of the 
personal labor of the child himself. Provisions are made 
in the statute for a mode of reimbursing a town in part for 
the disbursements it may make in this connection. 
I answer both of your questions in the affirmative. 



July 25. 



Director of Fisheries and Game — Deer — Damage. 

The Director of Fisheries and Game has no authority to pass upon claims for 
damage done by wild deer, approved by local authorities prior to June 28, 
1927. 

To the Com- You havB asked my opinion as to whether the Director 

missioner of ^ ± 

Conservation, ^f Fishcries aud Game has jurisdiction to approve or pass 
upon claims for damage caused by wild deer in the following 
cases : 

1. In cases where the damage was caused prior to June 28, 
1927, and where the claim was formally approved by the 
chairman of the board of selectmen and two disinterested 
appraisers, as well as by the county commissioners, prior 
to that date. 

2. In cases where the damage was caused prior to June 28, 
1927, and where the claim was not approved by the chair- 
man of the board of selectmen and two disinterested ap- 
praisers, as well as by the county commissioners, prior to 
that date. 

The date June 28, 1927, is of importance for the reason 
that St. 1927, c. 194, amending G. L., c. 131, § 67, and 
amendments thereto, became effective on that date. 



ARTHUR K. READING?, ATTORNEY-GENERAL. 351 

G. L., c. 131, § 67, as amended, provided as follows: — 

Whosoever suffers loss by the eating, browsing or trampling of his fruit 
or ornamental trees, vegetables, produce or crops by wild deer or wild 
moose, if the damage is done in a city may inform the officer of police 
thereof, who shall be designated to receive such information by the mayor, 
and if the damage is done in a town may inform the chairman of the 
selectmen of the town where the damage was done, who shall proceed to 
the premises and determine whether the damage was inflicted by such 
deer or moose, and, if so, appraise the amount thereof if it does not ex- 
ceed twenty dollars. If, in the opinion of the officer or chairman, the 
amount of said damage exceeds twenty dollars, he shall appoint two dis- 
interested persons, who, with himself, shall appraise, under oath, the 
amount thereof. The officer or chairman shall return a certificate of the 
damages found, except in Suffolk county, to the treasurer of the county 
in which the damage is done, within ten days after such appraisal is 
made. The treasurer shall thereupon submit the same to the county 
commissioners, who, within thirty days, shall examine all bills for dam- 
ages, and if any doubt exists, may summon the appraisers and all parties 
interested and make such examination as they may think proper. The 
bills properly approved with the cost of appraisal shall be sent by the 
county treasurer to the state auditor, and they shall be paid by' the com- 
monwealth. In Suffolk county the certificate of damages shall be re- 
turned to the treasurer of the town where the damage is done, who shall 
exercise and perform the rights and duties hereby conferred and imposed 
upon the county commissioners in other counties. The appraisers shall 
receive from the commonwealth one dollar each for every such examina- 
tion made by them, and shall receive twenty cents a mile, one way, for 
their necessary travel. 

St. 1927, c. 194, amends this act by providing that the 
bills, after approval by the county commissioners, shall be 
sent to the Director, who shall examine the same and, if 
found by him to be proper, shall endorse his approval 
thereon and transmit them to the Comptroller, whereupon 
they shall be paid by the Commonwealth. 

In my opinion, the Director has no authority to pass upon 
the claims in the first case. While undoubtedly St. 1927, c. 
194, is retrospective in its operation and appUes to pending 
cases, I do not think that it applies to a case where all the 
substantial steps in enforcing the remedy have been com- 
pleted. In the first case all steps had been completed before 



352 OPINIONS OF THE ATTORNEY-GENERAL. 

the new law went into effect, except that the approved 
bill had not been sent to the State Auditor or to his suc- 
cessor, the Comptroller, and had not been paid by the 
Commonwealth. No appeal from the finding of the county 
commissioners was provided for by the law, and at the 
time it was rendered the finding of the county commis- 
sioners was final; nothing remained to be done but the 
purely ministerial act of sending the bills to the State 
Auditor and the actual paying of the money by the Com- 
monwealth. Neither of these acts involved any discre- 
tionary action on the part of any one. The action was not 
a pending action at the time the new law went into effect, 
and I therefore am of the opinion that the Director has no 
power to act in this case. 

In the second case the actions were pending at the time 
the new law went into effect, and under the familiar rule 
that remedial and procedural laws are retrospective as to 
pending cases, I am of the opinion that the provisions of 
St. 1927, c. 194, apply to such cases, so that the Director must 
approve such bills before they are paid. 



Metropolitan District Commission — Beaver Dam 
Brook — Construction of Statutes. 

St. 1927, c. 301, is so repugnant in its terms to St. 1913, c. 814, that it impliedly 
repeals the latter, and deprives the Metropolitan District Commission of the 
authority to deal with Beaver Dam Brook given it by St. 1913, c. 814. 

To the Metro- YouT Commissiou has asked my opinion relative to the 

politan Dis- *^ -^ 



l^ssiJn."" effect of St. 1927, c. 301, upon the authority given to your 
ju\y^29. Board, or its predecessor in office, by St. 1913, c. 814. 

The statute of 1913 authorized the Metropohtan Water 
and Sewerage Board to widen, straighten and deepen the 
channel of Beaver Dam Brook in the towns of Ashland, 
Framingham, Sherborn and Natick. The Board was 
authorized to take by eminent domain, or otherwise, lands 
and water rights in relation to such work for the metropoli- 



ARTHUR K. READING, ATTORNEY-GENERAL. 353 

tan water works, the title to the property so taken to vest 
in the Commonwealth. Damages were to be determined 
by the Board, and in the absence of an agreement relative 
to such determination by a jury in the Superior Court. 
The Board was given authority to assess betterments. 
The expense incurred in carrying out the provisions of the 
act was to be paid out of the treasury of the Commonwealth 
and an issue of bonds therefor was authorized, and a third 
of the expense was to be repaid to the Commonwealth by the 
town of Framingham and an issue of bonds for such purpose, 
to be made by the town, was authorized. 

St. 1927, c. 301, provides that the town of Framingham 
may widen, straighten and deepen the channel of Beaver 
Dam Brook in the towns of Ashland, Framingham and 
Natick, with other provisions relative to the brook similar 
to those contained in section 1 of chapter 814 with the 
exception of any mention of the town of Sherborn in the 
statute of 1927. I am advised that the part of the town 
of Sherborn which is in any way affected by the widening 
of the brook has, since 1913, been annexed to the town of 
Framingham. 

St. 1927, c. 301, authorizes the town of Framingham to 
perform the same and some additional work in relation to 
the channel of Beaver Dam Brook as was given to the Board 
under the earlier act, and authorizes the town to take by 
eminent domain or purchase the land and water rights, and 
provides that damages recovered for such takings shall be 
paid by the town. The town is also given authority to 
make betterment assessments, and it is provided in this 
statute (§ 5) that from and after the completion of the work 
authorized by this act said Beaver Dam Brook shall be 
maintained, controlled and kept in good condition by the 
said town of Framingham. 

Undoubtedly, as a matter of law, the repeal of a statute 
or a part thereof by implication is not favored, but a later 
statute containing provisions plainly repugnant to those 
of a former statute has been held to repeal the earlier one 



354 OPINIONS OF THE ATTORNEY-GENERAL. 

in so far as the two were repugnant to each other. New 
London Northern R.R. Co. v. Boston & Albany R.R. Co., 102 
Mass. 386, and cases there cited. In the case of New London 
Northern R.R. Co. v. Boston & Albany R.R. Co., supra, 
powers and duties previously conferred and imposed upon 
commissioners appointed by the court were by a statute 
vested in a board of railroad commissioners, and the court 
held that all provisions of law which authorized commis- 
sioners appointed by the court to exercise such powers and 
perform such duties or the court to appoint such commis- 
sioners or to adjudicate upon their report were, in view of 
the statutory creation of a new commission, impliedly 
repealed. 

The statute of 1927 is repugnant to the statute of 1913. 
It relates to the same subject matter; it is not affirmative, 
cumulative or auxiliary, but grants authority to a new board 
to perform the acts which were formerly authorized to be 
performed by the Metropolitan Water and Sewerage Board ; 
and it authorizes the new body, the town, which is to go 
forward with the work, to assess betterments, to make 
takings and to do all the other necessary acts relative to the 
completion of precisely the same public improvement which 
was mentioned in the earlier statute. An attempted exer- 
cise of its power under the statute of 1913 by the Metro- 
politan District Commission, as successor to the Metro- 
politan Water and Sewerage Board, would bring it into 
direct collision with the authority vested by the statute 
of 1927 in the town of Framingham; and while the statute 
of 1927 does not in terms refer to or directly repeal the 
statute of 1913, it must, in my opinion, be said to be so 
repugnant to, and so obviously intended by the Legislature 
as a substitute for, the other as impliedly to repeal the pro- 
visions of St. 1913, c. 814, and I am of the opinion that the 
authority to proceed with the public work relative to the 
channel of Beaver Dam Brook now rests with the town of 
Framingham and is not within the authority of your Com- 
mission, under the statutes as they now stand. 



arthur k. reading, attorney-general. 355 

Illegitimate Child — Legitimation — Acknowledgment. 

Marriage of the parents of an illegitimate child without an acknowledgment of 
the parentage of the child by the father is not sufficient to make such child 
legitimate. 

You submit to me the inquiry of the Secretary of State GoveAior. 
of the United States as to whether, under the laws of Mas- August^ 29. 
sachusetts, the subsequent marriage of the parents of a 
child born out of wedlock has the effect of legitimating their 
child. 

G. L., c. 190, § 7, provides as follows: — 

An illegitimate child whose parents have intermarried and whose father 
has acknowledged him as his child shall be deemed legitimate. 

Acknowledgment by the father is, therefore, requisite 
in addition to intermarriage to legitimate a child born out 
of wedlock. 



Drainage District — Assessments — Recording. 

The provisions of G. L., c. 80, § 2, that no betterments for improvements shall be 
assessed unless the order therefor is recorded, do not apply to the assessing in a 
town within a drainage district organized under G. L., c. 252, as amended, of 
expenses of an improvement determined under said chapter 252. 

You inform me that the Weweantic River Drainage to the com- 

" missioner of 

District, having been organized under the provisions of ^ericuHure. 
G. L., c. 252, and never having been reorganized under the September!. 
provisions of St. 1923, c. 348, § 2, is subject to the provisions 
of G. L., c. 252, as amended by St. 1922, c. 349, and is not 
subject to the provisions of St. 1923, c. 348, as amended 
by St. 1926, c. 393, in which form G. L., c. 252, §§ 1-14B, 
as so amended now appear. 

You inform me that the commissioners of the said dis- 
trict have made an award determining the proportion of 
the total expense of the improvement of certain low lands 
in said district to be paid by the town of Carver, and that 
the sum due from such town has been ascertained in accord- 



356 OPINIONS OF THE ATTORNEY-GENERAL. 

ance with the provisions of G. L,, c. 252, § 13; and that 
neither the award nor a plan of the area expected to receive 
advantage from the improvement nor an estimate of the 
amounts to be assessed upon each parcel of land within 
such area was recorded, within thirty days from adoption 
of the award, in the registry of deeds of the district in which 
the area so improved is situated, as is required under the 
provisions of G. L., c. 80, §§ 1 and 2, to be done before 
assessing betterments for an improvement receivable by 
an area by reason of an order adopted by a board of officers 
of the Commonwealth stating that betterments are to be 
assessed for the improvement. 

You request my opinion whether the provisions of G. L., 
c. 80, §§1 and 2, relating to assessment of betterments for 
an improvement consequent to an order of a board of officers 
of the Commonwealth for such an improvement, stating 
that betterments are to be assessed, and especially the 
provision in section 2 that ''no betterments shall be assessed 
for such improvement unless the order . . . (is) recorded," 
so apply to the assessing by assessors of the town of Carver, 
under the provisions of G. L., c. 252, § 14, of the divisions 
of the sum ascertained to be due from the town of Carver 
under G. L., c. 252, § 13, and especially under the provision 
therein that ''the assessors . . . shall assess the same in the 
same manner as betterments are assessed under chapter 
eighty," as to preclude assessing land for divisions of the 
sum so ascertained, unless the award for such improvement, 
together with plan and estimate, is first recorded in the 
registry of deeds of the district within thirty days from its 
adoption. 

G. L., c. 252, § 14, is as follows: — 

The assessors of each such town shall divide the sum ascertained to be 
due from their town under the preceding section, among the various 
parcels of land therein which are within the drainage district and are 
benefited by the improvement in proportion to the special benefit received 
by each such parcel therefrom and shall assess the same in the same 
manner as betterments are assessed under chapter eighty. The provi- 



ARTHUR K. READING, ATTORNEY-GENERAL. 357 

sions of said chapter relative to the apportionment, division, reassessment, 
abatement and collection of assessments for betterments, and to interest, 
shall apply to assessments made under this section, except that such as- 
sessments shall be apportioned in twenty equal annual instalments or in 
such lesser number as the assessors may determine. 

The first sentence sets forth a direction to assessors to 
perform certain functions, namely, to divide an ascer- 
tained sum and to assess the same. The amount which 
is to be assessed upon each parcel of land is a divisional 
of an ascertained sum, and the sum which is to be divided 
is a sum as ascertained in section 13. The functions of 
division and of assessing relate to a sum definitely described, 
and ascertained under definite procedure. In so far as the 
provisions of G. L., c. 80, relate to the function of assessing 
betterments thereunder, section 14 provides that such 
provisions shall apply to the function of assessing land for 
the divisions made by the assessors, pursuant to section 14, 
of the sum ascertained under section 13. 

G. L., c. 80, § 1, as amended by St. 1923, c. 377, §§ 1, 2 
and 17, relating to assessing betterments, are as follows: — 

Section 1. Whenever a limited and determinable area receives 
benefit or advantage, other than the general advantage to the community, 
from a public improvement made by or in accordance with the formal 
vote or order of a board of officers of the commonwealth or of a county, 
city, town or district, and such order states that betterments are to be as- 
sessed for the improvement, such board shall within six months after the 
completion of the improvement determine the value of such benefit or 
advantage to the land within such area and assess upon each parcel thereof 
a proportionate share of the cost of such improvement, and shall include 
in such cost all damages awarded therefor under chapter seventy-nine; 
but no such assessment shall exceed the amount of such adjudged benefit 
or advantage. The board shall in the order of assessment designate as the 
owner of each parcel the person who was liable to assessment therefor on 
the preceding April first under the provisions of chapter fifty-nine. 

Section 2. An order under section one which states that betterments 
are to be assessed for the improvement shall contain a description suf- 
ficiently accurate for identification of the area which it is expected will 
receive benefit or advantage, other than the general advantage to the 
community, from such improvement, and shall refer to a plan of such 
area, and shall contain an estimate of the betterments that will be as- 



358 OPINIONS OF THE ATTORNEY-GENERAL. 

sessed upon each parcel of land within such area; and such order, plan 
and estimate shall be recorded, within thirty days from the adoption of 
the order, in the registry of deeds of every county or district in which the 
benefited area is situated. No betterments shall be assessed for such 
improvement unless the order, plan and estimate are recorded as herein 
provided, nor upon any parcel of land not within such area, nor for a 
greater amount than such estimate. 

Section 17. Whenever a formal vote or order for the laying out or 
construction of a public improvement, or for the taking of land therefor, 
states that betterments are to be assessed, no betterments shall be as- 
sessed except under this chapter, and all proceedings relating to such 
betterments shall be as herein provided, notwithstanding any special act 
hitherto enacted. 

These provisions are directory to a board, by whose order, 
stating that betterments are to be assessed, an area receives 
improvement, as to the function of assessing betterments 
(§1) and as to a function relative to such order (§2). 
Though the exercise of the function relative to such order 
(§2) is therein made requisite to the exercise of the func- 
tion of assessing in the operation of perfecting an assess- 
ment, the manner of the exercise of the latter function is 
clearly distinguishable, namely, to ''assess upon each parcel 
thereof a proportionate share of the cost of such improve- 
ment, and shall include in such cost all damages awarded 
therefor under chapter seventy-nine ; but no such assessment 
shall exceed the amount of such adjudged benefit or ad- 
vantage." 

Examination of these provisions is sufficient for the con- 
clusion that the provisions of section 14 bear instruction 
to assessors in the function of assessing only and of an 
amount as ascertained under G. L., c. 252, only, independent 
of instructions to other officials or of acts or omissions to 
sect pursuant to such instructions, made requisite elsewhere 
in the full process of accomplishing any assessment. 

G. L., c. 252, particularly provides in detail for procedure 
as to manner and form of the improvement of low land and 
swamps by drainage thereof (§§ 1-14); for the financing of 



ARTHUR K. READING, ATTORNEY-GENERAL. 359 

the same, namely, by payment of certain expenses by cer- 
tain counties (§§ 7, 8 and 11); for the payment thereof to 
such counties by certain towns (§ 13); and for the collec- 
tion by such towns of the amounts so repaid (§14). The 
provisions of section 13 delineate the mode of ascertain- 
ment of the amount to be repaid by any town to any county, 
namely, determination by an award, the procedure as to 
which (in making, notice to any town, appeal by any town 
aggrieved, and the finality thereof) is set forth in detail 
therein, as follows : — 

The commissioners shall, after due notice and a hearing, determine 
what proportion of the total expense of the improvement, of the cost of 
maintenance of drains and ditches and of the payment for works or struc- 
tures taken or otherwise acquired in connection therewith, except, such 
as is to be paid by the commonwealth, shall be paid by each town where 
any of the land improved lies, and shall return their award to the board, 
which shall, upon acceptance thereof, send a copy thereof to each such 
town. Any such town aggrieved by such award may, by petition joining 
all the other such towns as party respondents, appeal to the superior 
court for the county where the greater part of the land improved lies; 
provided, that such petition is entered not later than the next return day 
after the expiration of thirty days from its receipt of said copy. Questions 
of fact shall, upon motion of either party, be tried by jury in such manner 
as the court orders. The court may affirm, reverse or alter the award, 
and the decision of the court shall take effect as an original award. The 
board shall forthwith send to the county commissioners of the county 
where the greater part of the land lies a copy of the award as finally de- 
termined. The sum so ascertained to be due from any such town shall 
be paid by the treasurer thereof to said county in not exceeding twenty 
equal annual instalments to be collected in the same manner as taxes. 

The provisions of section 14, as herein set forth, delineate 
the method of collecting, in towns, sums ascertained to be 
due from the same under the provisions of section 13. 

G. L., c. 80, as amended by St. 1923, c. 377, particularly 
relates to betterments from a public improvement when 
made by vote or order of a board of public officials and when 
such order states that betterments are to be assessed for the 
improvement, and delineates the mode of assessment (§§1 
and 2), collection (§§12 and 14), abatement (§§ 5, 6, 7, 8, 9 



360 OPINIONS OF THE ATTORNEY-GENERAL. 

and 10), apportionment (§§13 and 14 [repealed]), division 
(§15) and reassessment (§ 16) of the same. The provisions 
of sections 1 and 2 relate particularly to assessments, and 
require that the same shall be made by the board adopting 
the order for the improvement and assessment; that the 
order shall designate owners of land liable to assessment 
(§1), and that no betterments shall be assessed unless the 
order, plan of area benefited and estimate of betterments 
to be assessed on each parcel have in fact been recorded in 
the registry of deeds where the benefited area is situated, 
within thirty days after the adoption of the order ( § 2) . 

If G. L., c. 80, §§1 and 2, in so far as they relate to incor- 
poration, in the order, of a designation of owner of each 
parcel liable to assessment, of a description sufficiently 
accurate for identification of areas benefited, of plans of 
such area and an estimate of benefits, and the recording of 
such order, plan and estimate, as prerequisites to assessing 
betterments, apply to the manner and form of making an 
award and for the ascertainment of sums due under G. L., 
c. 252, § 13, as prerequisite to assessing sums ascertained 
through procedure, of which such award is a part, it is 
obvious that such provisions of G. L., c. 80, §§ 1 and 2, are 
in addition to the provision of G. L., c. 252, in delineating 
further procedure for making an award by district commis- 
sioners or by a drainage board, and for ascertainment of 
sums due, assuming that such award is an order of a board 
of officers for a public improvement, stating that better- 
ments are to be assessed, to which, when of such character, 
G. L., c. 80, §§1 and 2, are generally applicable, and impose 
upon said commissioners or drainage board, additional and 
similar in purport to duties owed solely to towns and to 
county commissioners, for their information and protection, 
as recited in G. L., c. 252, § 13, duties to owners of each 
parcel of land to be assessed within the towns, for whose 
like information and protection as to betterments, designa- 
tion of ownership, description of area benefited and record- 



ARTHUR K. READING, ATTORNEY-GENERAL. 361 

ing or order, plan and estimate are ostensibly provided in 
G. L., c. 80. 

G. L., c. 80, § 2, requires that the order shall be recorded 
within thirty days after the adoption of such order. G. L., 
c. 252, § 13, provides that after the award is made, the dis- 
trict commissioners shall return the same to the drainage 
board (now State Reclamation Board, St. 1923, c. 457) for 
its acceptance; that any town aggrieved by the award, so 
accepted, may appeal to the court, the decision of which 
shall take effect as an original award ; and that the drainage 
board shall send to the county commissioners a copy of the 
award as finally determined. If G. L., c. 80, §§1 and 2, in 
so far as they relate to the recording of an order for improve- 
ment and assessment of betterments, within thirty days 
after its adoption, apply to an award under G. L., c. 252, 
§ 13, they require determination of the date of the adoption 
of the award, as among the dates of its making, of return to 
drainage board for acceptance, of acceptance by the board, 
of receipt of copy by any town from the drainage board, of 
expiration of period, after receipt, for appeal by a town 
aggrieved, of decision of court on appeal as an original 
award, of receipt by county commissioners from the drain- 
age board of copy of award as finally determined, as recited 
in section 13, in procedure to be had, with respect to such an 
award, for the ascertainment of the sums to be divided and 
assessed by the assessors under section 14. 

If G. L., c. 80, §§1 and 2, in so far as they provide that no 
betterments shall be assessed for such improvements unless 
the order, plan and estimate are so recorded, apply, under 
the provisions of G. L., c. 252, § 14, to the assessing of land 
in a town for the sum due from such town, then, in the ab- 
sence of such record within thirty days after adoption of the 
award, the provision of section 14 that the assessors shall 
divide the sum due from any town as ascertained under 
section 13, and shall assess the same, is nullified, and the 
amount due from any town, though having been determined, 
ascertained and paid by a county treasurer in strict com- 



362 OPINIONS OF THE ATTORNEY-GENERAL. 

pliance with the provisions of section 13, cannot be col- 
lected because of preclusion for its assessment. 

It is evident, therefore, by recitation of but a few involve- 
ments, occasioned by construing all the provisions of G. L., 
c. 80, for perfecting assessment of betterments as an integral 
* part of the procedure for perfecting assessments under 

G. L., c. 252, that the two chapters are incompatible, except 
in so far as the provisions of G. L., c. 80, relate to the isolated 
function of assessing. 

Moreover, by recitation in G. L., c. 252, § 14, of the several 
aspects, relating to betterments, to which the provisions of 
G. L., c. 80, are expressly made applicable and in which 
recitation ''assessments," as accomplishments had after 
adherence to the procedure delineated therein, are not enu- 
merated, it becomes more evident that it was the intent of 
the Legislature to establish the procedure set forth in G. L., 
c. 252, § 13, as sufficient prerequisite to the operation of 
assessing by assessors, and that the provisions of G. L., c. 
80, are applicable only in so far as they mannerize such 
operation; and that as to the manner of accomplishing an 
assessment to pay a town's share of expense of a drainage 
improvement other than the operation of assessing, the 
provisions of G. L., c. 252, are substitute for the provisions 
of G. L., c. 80. 

I therefore answer your interrogatory in the negative. 



Constitutional Law — Notaries — Justices of the 

Peace. 

Appointments to the offices of notary public and justice of the peace rest in the dis- 
cretion of the Governor and Council, who may pass upon the qualifications of 
applicants for such offices. 

Governor ^^^ requcst my opinion as to the intent of the framers 

^""^ ?927°"'' of the Constitution in regard to the appointment of notaries 
September 14. p^^^jjg ^^^^ justices of the pcace in the Commonwealth. 

"Was it originally contemplated," you ask, "that appoint- 



ARTHUR K. READING, ATTORNEY-GENERAL. 363 

ments should be made indiscriminately, as indicated in the 
petition herein enclosed?" The petition referred to is that 
of a salesman of bonded whiskey, who petitions for appoint- 
ment to the office of notary public for the Commonwealth 
of Massachusetts. 

Mass. Const. Amend. IV provides that notaries shall be 
appointed by the Governor in the same manner as judi- 
cial officers are appointed. Mass. Const. Amend. XXXVII 
provides that the Governor, with the consent of the Council, 
may remove justices of the peace and notaries public. 

In my opinion, there is nothing in the language used by 
the framers of the Constitution to indicate that appoint- 
ments to the offices above mentioned should be made indis- 
criminately. 

In the original Constitution of the Commonwealth, justices 
of the peace were to be nominated and appointed by the 
Governor, by and with the advice and consent of the Council, 
being judicial officers {Opinion of the Justices, 107 Mass. 
604) within the meaning of Mass. Const., pt. 2nd, c. II, 
§ I, art. IX, which provides: — 

All judicial officers, the attorney-general, the soUcitor-general, all 
sheriifs, coroners, and registers of probate, shall be nominated and ap- 
pointed by the governor, by and with the advice and consent of the coun- 
cil; and every such nomination shall be made by the governor, and made 
at least seven days prior to such appointment. 

Notaries public, on the other hand, were to be elected by the 
Legislature. Mass. Const., pt. 2nd, c. II, § IV, art. I, was 
as follows : — 

The secretaiy, treasurer and receiver-general, and the commissary- 
general, notaries public, and naval officers, shall be chosen annually, by 
joint ballot of the senators and representatives in one room. . . . 

But, as has already been stated, article IV of the amend- 
ments brought notaries also within the appointing power of 
the Governor and Council : — 

Notaries public shall be appointed by the governor in the same manner 
as judicial officers are appointed, and shall hold their offices during seven 



364 



OPINIONS OF THE ATTORNEY-GENERAL. 



years, unless sooner removed by the governor with the consent of the 
council, upon the address of both houses of the legislature. 

The mere fact that the offices of notaries pubhc and jus- 
tices of the peace are appointive offices indicates that the 
Governor and Council are to use their discretion in the 
matter of the nomination and appointment of these officers. 
This discretion, of course, must not be arbitrarily exercised, 
but the Governor can refuse to appoint for any vaUd reason. 

The Governor and Council, using their discretionary 
power, might determine, after inquiring into the personal 
qualifications of applicants or into the reasons for which 
they seek appointment, that such applicants are not proper 
persons to receive commissions, or that the reasons which 
they give for desiring such appointments are not sufficient 
to justify appointment, or that the public welfare does not 
require an increase in the number of such officers. 

A former Attorney-General, in an opinion to Your Excel- 
lency and the Honorable Council (VII Op. Atty. Gen. 580), 
with which opinion I concur, states : — 

It is my opinion that, except for limitations of the type mentioned in 
the preceding paragraph, all questions relating to the number of justices 
of the peace and notaries public which it may be thought desirable to 
have, or relating to the personal qualifications for appointment to these 
offices, or relating to the reasons for which such officers once appointed 
should be removed, are for the determination of the Governor and Council, 
in the exercise of their sound discretion. 



To the Com- 
missioner of 
Corporations 
and Taxation. 

1927 
October 3. 



County Commissioners — Trustees of County Tuber- 
culosis Hospital — Compensation. 

County commissioners may not award to themselves or to trustees of a tuberculosis 
hospital salary or compensation for services. 

You request my opinion as to whether, under the pro- 
visions of G. L., c. 34, § 5, as amended by St. 1927, c. 327, 
relating to schedules and salaries of county commissioners, 
and of G. L., c. Ill, and amendments thereof, in those 
sections relating to county tuberculosis hospitals, an item 



ARTHUR K. READING, ATTORNEY-GENERAL. 365 

in certain county accounts for compensation to county 
commissioners for attendance at meetings of the trustees of 
the tuberculosis hospital maintained by the county of the 
said commissioners, and an item for salary voted by the 
trustees of a county tuberculosis hospital to the county 
commissioners of the same county for services as trustees, 
are items which the Director of Accounts, under the provi- 
sions of G. L., c. 35, § 44, et seq., and amendments thereof, 
relating to supervision of county accounts, may certify as 
correct. 

G. L., c. Ill, § 78, etseq., and amendments thereof, provide 
for the erection, care, maintenance and repair of county 
tuberculosis hospitals. Section 87 provides that the "county 
commissioners shall be trustees of the hospitals erected." 

G. L., c. 34, § 5, is as follows: — 

To establish the salaries of county commissioners, the counties, except 
Suffolk and Nantucket, are divided into eight classes, based upon popula- 
tion, according to the following schedule, and said salaries, in full for all 
services performed by said commissioners, except as otherwise provided, 
shall be as follows: — . . . 

A schedule is then set forth, which schedule was amended 
by St. 1927, c. 327. 

It is therefore specifically provided that the salary sched- 
uled to any given class shall be "in full for all services per- 
formed by said commissioners, except as otherwise pro- 
vided," and that performance of service of trusteeship of a 
county tuberculosis hospital is imposed upon the county 
commissioners of such county. 

As to the first item, compensation for services of county 
commissioners for attendance as county commissioners at 
meetings of themselves as trustees, the service of attendance 
is a service represented by the county commissioners to have 
been performed in their capacity as county commissioners; 
and it follows, therefore, that such service is included in 
those services, for "all" of which, under the provisions of 
G. L., c. 34, § 5, salary is established in full, unless payment 



366 OPINIONS OF THE ATTORNEY-GENERAL. 

of compensation for such service shall be elsewhere provided 
by statute. I do not find such a statute. 

As to the second item, salary voted by county commis- 
sioners to themselves in their capacity as trustees of a 
county hospital, for services rendered by them as such trus- 
tees while at the same time receiving a salary for their office 
as county commissioners, by virtue of which they are trus- 
tees, the service of trusteeship is a service "performed" by 
the commissioners pursuant to the provisions of G. L., c. 
Ill, § 87, whether or not performed by them in their capacity 
as county commissioners in their capacity as such or as 
trustees, for which, as one of "all services performed by said 
commissioners," under the provisions of G. L., c. 34, § 5, 
salary is established in full, unless payment of salary for 
such service is elsewhere provided. If the service of trustee- 
ship is performed by them as county commissioners, by 
reason of incumbency in such office, it is a service in their 
capacity as county commissioners included in those services 
for all of which the salary, established by G. L., c. 34, § 5, 
as amended, is in full. If the service of trusteeship is per- 
formed by them in their capacity as trustees, apart and dis- 
tinct from their capacity as county commissioners, enable- 
ment of payment by the trustees of salary for such service 
must be found in some provisions pertaining thereto in 
statutes relating to such trustees. I do not find any such 
provision. 

It follows, therefore, that there is no authorization for the 
payment of compensation to county commissioners for at- 
tendance of themselves, as county commissioners, at meet- 
ings of trustees of county tuberculosis hospitals, nor for 
salary to them, as county commissioners, as trustees of 
such hospitals, other than the salary to such county com- 
missioners established for all services performed by county 
commissioners, nor for payment of a salary to any trustees 
of county tuberculosis hospitals ; and, in my opinion, neither 
item is proper for certification by the Director of Accounts. 



arthur k. reading, attorney-general. 367 

Public Schools — Textbooks — Transportation of 

Pupils. 

Public funds may not be expended to provide free textbooks or free transportation 
for pupils attending private schools. 

You have requested my opinion upon the two following ^"ssionMTf' 

.• r 1 Education. 

questions oi law : — 1927 

November 2. 

1. Whether the town of Ashburnhani, under the "anti-aid" amend- 
ment, can furnish textbooks out of pubUc funds to pupils attending a 
private schooL 

2. Can the town, from public funds, pay the transportation of pupils 
to a private school? 

You have set forth the facts relative to the situation in 
Ashburnhani, to which you direct my attention, as follows: 

The town of Ashburnham is exempted by the Department from 
maintaining a high school because high school opportunities are made 
available to the pupils of the town at Gushing Academy in Ashburnham. 
The tuition of these pupils is paid from a private fund which has been 
raised by the citizens of the town. The town itself has been supplying 
these pupils with textbooks. The question of transporting pupils to 
Gushing Academy has never been raised, but a member of the school 
committee states that should it occur the transportation would be paid 
by the town out of public funds. 

It is apparent from the foregoing facts and from an in- 
spection of a written contract between the school committee 
of Ashburnham and the trustees of Gushing Academy, 
which you have submitted to me, that Gushing Academy 
is an entirely private school. It is completely under private 
management. Public officials exercise no control what- 
soever over it. No question exists as to its status in this 
respect, such as was considered with relation to the Pun- 
chard School in an opinion rendered to you on August 6, 
1924 (VII Op. Atty. Gen. 500). The fact that the avail- 
ability of Gushing Academy as a place where Ashburnham 
children of high school age might receive training may have 
been a large or controlling factor in leading you, in the 
exercise of your discretion, to exempt the town from main- 



368 OPINIONS OF THE ATTORNEY-GENERAL. 

taining a high school, under the authority given you by 
G. L., c. 71, § 4, does not change the status of the academy 
from that of a private to a pubhc school. The expenditure 
of public funds for the purchase of school books for pupils 
who receive their education in institutions other than those 
public schools embraced in our general public school system 
is not authorized by the statutes (G. L., c. 71, §§48 and 49), 
and would constitute an expenditure of money for a purpose 
which cannot be termed public, in the absence of a specific 
legislative determination to that effect. 

The same considerations are applicable to the payment of 
public funds for the transportation of Ashburnham children 
to the private school, Gushing Academy, and I am of the 
opinion that the town cannot expend public moneys to buy 
textbooks for, or to transport, pupils attending the academy, 
under the facts as you have set them forth. 



November 3. 



Motor Vehicles — Steam Road Roller — Storing of 
Compressed Air. 

a steam road roller capable of being propelled by its own power is a motor vehicle 
within the provisions of G. L., c. 146, § 34. 

mL^ono^'^'of You have requested my opinion as to whether, under 
pubi^c^&afety Q L., c. 146, § 34, a steam road roller is a motor vehicle. 
G. L., c. 146, § 34, provides: — 

No person shall install or use, or cause to be installed or used, any 
tank or other receptacle, except when attached to locomotives, street or 
railway cars, vessels or motor vehicles, for the storing of compressed air 
at any pressure exceeding fifty pounds per square inch, for use in operat- 
ing pneumatic machinery, unless the owner or user thereof shall hold a 
certificate of inspection, issued by the division. 

G. L., c. 90, § 1, provides: — 

The following words used in this chapter shall have the following 
meanings, unless a different meaning is clearly apparent from the Ian- 



ARTHUR K. READING, ATTORNEY-GENERAL. 369 

guage or context, or unless such construction is inconsistent with the 
manifest intention of the legislature: 

"Motor vehicles," automobiles, motor cycles and all other vehicles 
propelled by power other than muscular power, except raUroad and rail- 
way cars and motor vehicles running only upon rails or tracks, ambu- 
lances, fire engines and apparatus, police patrol wagons and other vehi- 
cles used by the police department of any city or town or park board 
solely for the official business of such department or board, road rollers 
and street sprinklers. 

In commenting upon G. L., c. 90, the justices of the 
Supreme Judicial Court have said, in Opinion of the Justices, 
250 Mass. 591, 601: — 

The dominant aim of the statute is to regulate the use of motor vehicles 
upon highways. That is a proper field for the exercise of the police power. 
The enactment of G. L., c. 90, in its main features is an exercise of the 
police power. 

It is evident, therefore, that G. L., c. 90, has a limited 
application. Further, it is to be noted that section 1 of 
said chapter begins, "the following words used in this 
chapter shall have the following meanings," and that 
consequently the definitions, including that of the term 
"motor vehicles," have an application limited to the pur- 
poses of that chapter. 

The first law enacted in this Commonwealth to regulate 
the operation of automobiles and motor vehicles on ways 
is found in St. 1902, c. 315. Section 4 of that chapter is as 
follows: — 

The term "motor vehicle" in tliis act shall include all vehicles propelled 
by any power other than muscular power, excepting railroad and railway 
cars and motor vehicles running only upon rails or tracks. 

It is to be noted that in that section the definition of the 
term "motor vehicle" was limited to "this act" and that 
the Legislature recognized that there existed motor vehicles 
other than those sought to be regulated by the act of 1902. 

This chapter was subsequently repealed in 1903 by St. 
1903, c. 473, § 15. In that act automobiles and motor 



370 OPINIONS OF THE ATTORNEY-GENERAL. . 

cycles were the only motor vehicles the use of which was 
regulated, yet the Legislature evidently considered steam 
road rollers to be motor vehicles as such. In that chapter 
the Legislature enacted as follows : — 

The terms "automobile" and "motor cycle" as used in this act shall 
include all vehicles propelled by power other than muscular power, except- 
ing railroad and railway cars and motor vehicles running only upon rails or 
tracks, and steam road rollers. 

Later on, by St. 1909, c. 534, the prior motor vehicle laws 
were repealed. In section 1 of that chapter ''motor vehicle" 
is defined, with the exception of two words — "shall include" 
after the words "motor vehicle" — in the identical language 
found in the definition of the same words in G. L., c. 90, § 1. 

It is evident, therefore, that the term "motor vehicle" 
as used in G. L., c. 90, § 1, is limited in its application to 
the sections embodied in that chapter, and that in order to 
determine whether or not a steam road roller is a motor 
vehicle under G. L., c. 146, § 34, it is necessary to consider 
what the term "motor vehicle" means, without regard to 
the provisions of G. L., c. 90. 

The word "motor" is defined by the Century Dictionary 
as follows : — 

That which imparts motion; a source or originator of mechanical 
power; a moving power, as water, steam, etc. In inach. a prime mover; 
a contrivance for developing and applying mechanically some natural 
force, as heat, pressure, weight, the tide, or the wind; a machine which 
transforms the energy of water, steam, or electricity into mechanical 
energy; as an electric motor. 

The word "vehicle" is defined by the Century Dictionary 
as follows : — 

Any carriage moving on land, either on wheels or on runners; a con- 
veyance. That which is used as an instrument of conveyance, trans- 
mission or communication. 

The words "motor vehicle," as found in the Encyclopedia 
Americana, 1905, are defined as follows: — 



ARTHUR K. READING, ATTORNEY-GENERAL. 371 

Denoting a vehicle moved by inanimate power of any description, 
generated or stored within it, and intended for the transportation of either 
goods or persons on common highways. As an adjective the word denotes 
broadly some relation to mechanically driven vehicles. 

Definitions of the terms "motor" and "vehicle" in other 
dictionaries commonly accepted as standards coincide with 
the definitions quoted above. Judicial definitions of the 
term "motor vehicle" in its broader sense are almost en- 
tirely lacking. 

It is my opinion that a steam road roller, that is, a road 
roller operated by steam and capable of being propelled 
by its own power, is a motor vehicle within the terms of 
G. L., c. 146, § 34. 



Insurance — Fraternal Benefit Society — Distribu- 
tion OF Surplus. 

A distribution of the surplus of a fraternal benefit society to its members is not an 
equitable distribution if it is made upon a basis of a per capita division or of a 
percentage of present annual assessments alone. 

You have asked my opinion relative to a proposed dis- ^salifn^Tf" 
tribution of surplus to be made by a fraternal benefit ^"""ga?*"- 

..... 1 Novembers. 

society to its members. — 

You have advised me that the report of the society which 
has been adopted by vote of its officers having, I assume, 
the power of directors, relative to such distribution, is as 
follows : - — 

In the valuation of our condition as of December 31, 1926, $1,400,000 
was set aside for contingencies and $600,000 for dividend purposes. After 
setting aside these two sums, our valuation shows a percentage of 105 
plus and the executive committee recommends that a dividend be paid 
of 83^ per cent of the annual assessment of each member, to all members 
in good standing June 30, 1927, who have completed two full years mem- 
bership on December 31, 1926, with the exception of members on the Table 
of Regular Rates under 65 years, the dividend to be paid by checks through 
the collectors of subordinate councils, and on list of members supplied 
from the office of the supreme secretary. 



372 OPINIONS OF THE ATTOKNEY-GENERAL. 

You have informed me that the $1,400,000 reserve of 
this society, referred to in the foregoing order, from the 
statutory surplus of which the proposed distribution is to 
be paid, has been built up by the payments of beneficiaries 
upon their assessments made to provide for their prospective 
benefits under the rules of the organization, with the excep- 
tion of those members under sixty-five years, specifically 
referred to in said order. You also have advised me that 
the amounts which have been paid in by respective bene- 
ficiaries differ greatly. Accordingly, the proportionate 
interests in the reserve funds of the society, including the 
surplus, which the various members have built up for them- 
selves individually, differ greatly among such members in 
like manner as their respective payments have differed. 

It is obvious that under the plan adopted for distribution 
one who has been a member for only a short period, whose 
payments would necessarily have been much less than those 
of a member of longer standing paying at the same rate, 
would receive the same amount of repayment from the 
surplus as would the latter member, although the latter's 
contribution to such surplus, and his consequent interest 
therein, would be far the larger. 

It is immaterial whether the fund from which the dividend 
be paid is said to be derived from a reserve, a contingency, 
a surplus reserve or an emergency fund, as each is built up 
by the payments of the members, which are not aHke for all 
at any given period. It is immaterial that the sum to be 
repaid to each member equals the amount of a periodical 
contribution. The repayment purports to be a payment of 
a portion of the surplus directly to the members and not a 
reduction of the periodical contributions of its members. 
The number or amount of such contributions themselves 
is not, in fact, lessened or reduced by the vote of the officers, 
though a member might, if he so chose, use the funds re- 
ceived in the future payment of a contribution. Moreover, 
the same principle of equitable apportionment is applicable 
to a distribution by either the method of direct payment or 



ARTHUR K. READING, ATTORNEY-GENERAL. 373 

the reduction of contributions. It is likewise immaterial 
that the amount of the respective repayments is stated in 
terms of a percentage of the annual assessment. 

G. L., c. 176, § 17, as amended by St. 1926, c. 206, to the 
terms of which this proposed mode of distribution must 
conform, reads as follows: — 

Whenever the actual assets of a society exceed its liabilities, including 
in liabilities the net value of its outstanding contracts computed on the 
basis specified in the preceding section, by an amount equal to five per 
cent of said net value, such society may make an equitable distribution of 
any surplus in excess of said five per cent by a reduction of the periodical 
contributions of its members, or may pay back to its several members an 
equitable portion of such surplus in such manner as may be determined 
by vote of the officers of the society having the powers of directors. 

Prior to the passage of St. 1926, c. 206, the only statutory 
manner of equitable distribution of the specified amount 
of surplus was by a reduction of the periodical contribu- 
tions. A second manner, direct payment to beneficiaries, 
such as this society is following, is now authorized by said 
chapter 206. The intention of the statute as to either form 
of distribution is plain. It must be made equitably; that 
is, without discrimination among the several members, in 
accordance with the equitable as well as legal rights which 
such members severally have in the fund which is to be the 
subject of division. "Equitable distribution" and "equi- 
table portion," as used in the statute, denote, respectively, 
a distribution made in accordance with the foregoing prin- 
ciples and a portion received by means of such a distribution. 
The word "equitable" as used in the instant statute does 
not describe the total sum which is to be distributed in its 
relation to other moneys of the society. 

The reserves and surplus of the society have been built 
up by the contributions of the members, and as to such 
surplus and reserve each member has an interest in such 
part as is represented by the proportion which the member's 
contributions to such surplus and reserve fairly bear to the 
total amount thereof. In other words, a member by his 



374 OPINIONS OF THE ATTORNEY-GENERAL. 

payments is continually building up a part of the reserve 
of the whole society, which part may fairly be described 
as the reserve on his particular certificate, and in any fair 
division of such reserve, or a surplus part of it, the portion 
thereof which can be allocated to his particular certificate 
should be returned to him. As such individual portions of 
the reserve so built up by various members through their 
own contributions will naturally differ widely in amount 
with variations in length of membership or rates of payment, 
any method of dividing up the total reserve or surplus, or 
any part of either, which ignores these variations in the 
amount of the particular reserves built up by the individuals 
and attempts a division per capita or by a percentage of 
present annual assessments is obviously unfair, regardless 
of the equitable rights of the several members in the whole 
fund, and cannot be termed either an equitable distribution 
nor be said to pay to the members equitable portions. An 
assessment based upon a percentage of the annual assess- 
ment of each member, while varying in amount with the 
size of the respective assessments of the members, does 
not necessarily reflect in the same proportions the varia- 
tions which exist in the contributions to the fund to be 
distributed, which the members have respectively made. 

Apart from G. L., c. 176, § 17, as amended, it has been 
held in this Commonwealth that in a distribution of a 
reserve fund justice requires that it be carried out by pay- 
ments to certificate holders in proportion to the amounts 
paid in to such fund by each respectively. Fogg v. Order of 
the Golden Lion, 159 Mass. 9. 

Because amounts of payments to beneficiaries are to be 
equal it does not follow that they will be just or equitable. 
Indeed, the very fact that they are equal is what may make 
them inequitable. The scheme under which this society 
is about to make payments, totally disregarding, as it does, 
the varying proportions in which the beneficiaries have 
contributed to the fund which is to be returned in part to 
those who created it, is plainly inequitable. 



ARTHUR K. READING, ATTORNEY-GENERAL. 375 

I am not unmindful of the difference which exists between 
the character of the relation of members of a fraternal 
beneficiary society to the society itself and that of an assured 
with an insurance company, but I am of the opinion that 
the specific language of G. L., c. 176, § 17, as amended, 
clearly indicates an intent on the part of the Legislature to 
recognize and protect, to the extent of his contributions, an 
interest of the individual member in the accumulated funds 
of such a society when a distribution of surplus permitted 
by the statute is made. The decisions in Reynolds v. 
Supreme Council, Royal Arcanum, 192 Mass. 150, and Royal 
Arcanum v. Green, 237 U. S. 531, are not inconsistent with 
the opinions which I have expressed. 

Although the statute authorizes the officers of the society 
who have the powers of directors to determine the manner 
in which the equitable distribution is to be paid, they are 
not authorized to make any distribution other than an 
equitable one. While their determination in regard to the 
manner of carrying out the distribution (whether by direct 
payments or by a system of credits, for example) is within 
their authority, and while their determination in this respect 
may be binding upon the members of the society, yet they 
have no authority whatsoever to establish an inequitable 
scheme for distribution, and their determination, by adop- 
tion or otherwise, of the propriety of a given plan of dis- 
tribution as being equitable is not binding upon the mem- 
bers of the society nor upon the Commissioner of Insurance, 
and if it be not an equitable plan the courts will grant relief 
against it. Such relief would probably be granted upon 
the suit of an aggrieved member of the society without the 
necessity for the intervention of the Commissioner of Insur- 
ance. The Commissioner has ample powers under the 
statutes to invoke the aid of the courts to prevent the 
carrying out of a proposed inequitable scheme of distribu- 
tion if, in his judgment, consideration of the public good 
requires him so to act in any given case, for the protection 
of beneficiaries or for other good cause. 



376 OPINIONS OF THE ATTORNEY-GENERAL. 

The answers to the questions which you have propounded 
in your letter are, I think, fully indicated in the foregoing 
considerations and do not require to be set forth seriatim. 
In order that there may be no possibility of misunder- 
standing the effect of the opinions which I have expressed 
herein, I answer your fourth question, in view of the facts 
before me, categorically in the negative. 



Inspector of Animals — City of Lowell — Approval 
OF Appointment. 

The appointment of an inspector of animals for the city of Lowell under St. 1921, c. 
383, §§ 20-23, is subject to the approval of the Director of Animal Industry. 

mi'ssfonS'Sf You have requested my opinion relative to an interpre- 

conservation. ^^^-^^ ^^ ^-^^ provislous of St. 1921, c. 383, §§ 20 and 22, 
ovemj^r . ^j^^.]^ y^^ suggest are in conflict with G. L., c. 129, §§15 
and 16, concerning the appointment of an inspector of ani- 
mals for the city of Lowell. 

I am of the opinion that there is not such repugnancy 
between the statute of 1921 and G. L., c. 129, §§ 15, 16, 17 
and 18, as works an implied repeal of all of such sections or 
renders them entirely inapplicable to the city of Lowell. 

The statute of 1921 is special in its nature and limited to 
the city of Lowell, but is cumulative or auxihary to the above 
provisions of the General Laws as they affect the appoint- 
ment of inspectors of animals under the said sections, rather 
than contrary and opposed to them, in the main. St. 1921, 
c. 383, § 20, provides that in the city of Lowell there shall be 
certain administrative officers, among whom shall be an 
inspector of animals, and by section 22 it is provided that the 
inspector of animals, among others of such officers, shall be 
nominated by the mayor, subject to confirmation by a ma- 
jority vote of all the members of the city council, for the 
term of two years, the first term to begin the first Monday of 
January, 1922. I am advised in the communication which 
you forwarded that such nominations to the office of inspec- 



ARTHUR K. READING, ATTORNEY-GENERAL. 377 

tor of animals have been duly made at regular intervals of 
two years since January 1, 1922, and that the present in- 
cumbent of the office of inspector of animals for the city of 
Lowell was so appointed in January, 1926. 

While it is true that the precise mode and manner by 
which the mayor of Lowell is to nominate an inspector of 
animals differ in detail from the general provision relative to 
other cities (G. L., c. 129, § 15), both as to date and as to the 
length of the term of the office, and confirmation by the city 
council of such nomination, yet such differences as exist do 
not appear to be material variations from the procedure 
outlined in G. L., c. 129, § 15. In any event, the mayor's 
act with relation to the inspector is treated as a nomination 
in the newer statute as in the older, and such nomination is 
spoken of as confirmed by the city council; yet it would 
seem that even after the council has acted upon the mayor's 
nomination there has not yet been an appointment, and 
G. L., c. 129, provides that the appointment is subject to 
the approval of the Director of Animal Industry. Because 
the Legislature has changed the mode of nominating the 
officer it does not follow that the statute shows a legislative 
intent to remove the final approval from the Common- 
wealth's own official. 'St. 1921, c. 383, does not create a 
new office of inspector of animals. It merely provides for 
his appointment, with a possible enlargement of his duties, 
but the inspector is still subject to the orders and directions 
of the Director of Animal Industry (G. L., c. 129, § 18), 
and other duties to be presumed under G. L., c. 129, rest 
upon him. His work appears to be an integral part of an 
orderly scheme laid out by the Commonwealth, under the 
control of the Director. It is hardly to be supposed, without 
the use of explicit words indicating such an intention, that 
the Legislature intended to make inapplicable to this official 
the existing requirement of approval by the Director of 
Animal Industry, under whom his work is largely to be car- 
ried on and to whom his duties require him to be responsi- 
ble as well as to the city. It cannot well be said that the 



378 OPINIONS OF THE ATTORNEY-GENEEAL. 

enactment of the statute of 1921, silent as to repeal of any- 
general laws, was intended by the Legislature to make inap- 
plicable to the inspector of animals in Lowell the provisions 
of G. L., c. 129, §§ 16, 17, 18, 19 and 24, or the vital provi- 
sions of section 15 for the approval of his nomination by the 
Director, the latter requirement being in no sense inconsist- 
ent with the powers of nomination and confirmation thereof 
givenl^by the statute of 1921 to the mayor and council. 

In Brooks v. Fitchburg & Leominster St. Ry. Co., 200 Mass. 
8, it was stated by Rugg, J. : — 

The principle of interpretation is well established, that statutes alleged 
to be inconsistent with each other, in whole or in part, must be so con- 
strued as to give reasonable effect to both, unless there be some positive 
repugnancy between them. 

And see, also, III Op. Atty. Gen. 296; 593. 

Accordingly, I am of the opinion that the statute of 1921 
has not repealed or altered, as far as the city of Lowell is 
concerned, the provisions of G. L., c. 129, § 15, except in so 
far as the manner and date of choosing the inspector of 
animals and the time of reporting the choice is necessarily 
varied, and that the other provisions of section 15 apply; 
that the name of the city appointee to the office of inspector 
of animals should be made known to you by the mayor of 
Lowell before the first of April in the year in which he is 
nominated, with the address and occupation of such in- 
spector; that his nomination does not become effective as 
an appointment until approved by the Director of Animal 
Industry; and that if more than one inspector is nominated 
and appointed one must be a registered veterinary surgeon. 



November 4. 



arthur k. reading, attorney-general. 379 

Director of Accounts — County Accounts — Expen- 
ditures. 

Postdating a voucher for the purpose of confirming an account of a county treasurer 
in its representation as an item of expenditure for a current year renders such 
account so incorrect that the Director of Accounts may refuse to certify it 
under G. L., c. 35, § 44, as amended. 

A county treasurer's account which contains an item of expenditure in excess of 
$800, not made in compHance with G. L., c. 34, § 17, as amended, may not 
properly be certified by the Director of Accounts. 

You request my opinion as to whether, under the provi- TotheCom- 

^ ^ ^ ' A rmssioner of 

sions of G. L., c. 35, § 44, the Director of Accounts may ^nd^Taxa-"^ 
rightly dechne to certify, and may rightly notify the Attor- *'°°i927 
ney-General of, an account in certain county accounts for 
allowance of payment, out of appropriations for the current 
year, of expenditures actually incurred in a preceding year 
for requirements of said year, though the voucher accom- 
panying such account confirms and sustains on its face the 
representation of the account, that the indebtedness is one 
incurred in and for the current year, and corresponds in 
every detail of its items with detail of the items of the ac- 
count, and states such details sufficiently. 

G. L., c. 35, § 44, as amended by St. 1921, c. 486, § 2, 
provides, in part, as follows : — 

The director of accounts . , . shall . . . examine the books and 
accounts of each county treasurer and aU original vouchers . . . , and if 
the same are correct, and if the accounts are accompanied by sufficient 
vouchers stating in detail the items thereof, and if such vouchers confirm 
and sustain the same, ... he shall so certify on the treasurer's cash book. 
... If such accounts are incorrect or not accompanied by sufficient vou- 
chers, the director shall, unless the irregularity is promptly rectified, notify 
in writing the . . . attorney general. 

In my opinion, the word "correct" in the foregoing provi- 
sions, descriptive of the character of the books, accounts and 
vouchers, as to which the Director is authorized to certify, 
is not restricted to a description of such books, accounts 
and vouchers as that of being correct in the sense of suffi- 
cient itemization in each and of complete accuracy in cor- 
respondence of one with another as to such itemization. 



380 OPINIONS OF THE ATTORNEY-GENERAL. 

Postdating a voucher for the purpose of confirming and sus- 
taining an account in its representation as an item of expendi- 
ture incurred in and for the current year, which in fact is 
an expenditure for the requirements of a preceding year, is 
contrary to the general purposes of the statutes regulating 
county finances with respect to their purposed regulation 
for orderly and accurate allocation of expenditure, and such 
accounts appearing in books, accounts and vouchers, though 
correct in the sense that they are in accurate correspondence 
with and in confirmation and sustainment of one another, 
are not "correct" in the sense that they are accurate and true 
accounts of the facts which they purport to represent. 

You are advised, therefore, that the Director of Accounts 
may rightly decline to certify such an account as "correct" 
unless such irregularity is rectified. 

You also request my opinion as to whether, under the 
provisions of G. L., c. 34, § 17, as amended by St. 1922, c. 
383, requiring the advertising of certain contracts by the 
county commissioners for the purchase of supplies in excess 
of $800, and under the provisions of G. L., c. 35, § 44, as 
amended by St. 1921, c. 486, § 2, authorizing the Director of 
Accounts to certify accounts "if in case of all payments in 
excess of eight hundred dollars section seventeen of chapter 
thirty-four has been complied with," an item for the allow- 
ance of payment of a bill of $1,160 for printing of booklets 
entitled "Fees, Forms and Rules," contracted for by a regis- 
ter of probate without having been advertised, is a proper 
item for certification by the Director of Accounts. 

G. L., c. 34, § 17, as amended by St. 1922, c. 383, is, in 
part, as follows : — 

All contracts exceeding eight hundred dollars in amount made by the 
(county) commissioners for building, altering, furnishing or repairing pub- 
lic buildings, or for the construction or repair of pubUc works, or for the 
purchase of supplies, . . . shall be made after notice inviting bids therefor 
has been posted . . . and has been advertised ... No contract made in 
violation of this section shall be valid against the county, and no pay- 
ment thereunder shall be made. 



ARTHUR K. READING, ATTORNEY-GENERAL. 381 

The booklet is entitled "Fees, Forms and Rules," and 
pertains to probate court practice. My attention has not 
been directed to any statutory provision authorizing incur- 
rence by a register of probate of any indebtedness through 
contract for labor or materials chargeable to a county. 

The provisions of G. L., c. 34, relating to the general 
powers of county commissioners, of G. L., c. 35, relating to 
county finances, of G. L,, c. 215, §§ 30-56, relating to pro- 
bate courts and to duties of county commissioners with 
respect to such courts, and of G. L., c. 217, relating to the 
powers and duties of registers of probate, indicate that 
indebtedness of a county for and in behalf of the probate 
court for the county, through contracts, shall be incurred 
by or on approval of the county commissioners. 

Under the provisions of G. L., c. 34, § 17, a county in- 
debtedness in excess of $800, if arising by reason of a con- 
tract by the county commissioners for the purchase of sup- 
plies, may not be paid unless such contract is advertised. 
Though all the other types of contract enumerated in the 
statute, to which its provisions are applicable, relate to 
public buildings and public works of the county, with re- 
spect to construction, alteration, furnishing and repair 
thereof, in my opinion the word "supplies" is not thereby 
restricted to a designation of a contract only for suppUes 
for alteration, furnishing and repair of public buildings, but 
comprehends all supplies which county commissioners are 
authorized to provide as incidental to the orderly transaction 
of probate court proceedings, of which a printed publication 
for information of the public as to rules, fees and forms of 
such court may be one. 

G. L., c. 35, § 44, provides, in part, as follows: — 

The director of accounts . . . shall examine the . . . accounts of 
each county treasurer, . . . and if in case of all payments in excess of 
eight hundred dollars section seventeen of chapter thirty-four has been 
complied with, he shall so certify on the treasurer's cash book. 

These provisions are applicable to all payments in excess 
of $800 appearing on the books of a county treasurer, and 



382 OPINIONS OF THE ATTORNEY-GENERAL. 

require that as to every payment in excess of $800 the provi- 
sions of G. L., c. 34, § 17, must be .complied with as a condi- 
tion precedent to certification thereof by the Director of 
Accounts. 

As the account about which you inquire is for allowance 
of a payment in excess of $800 and a payment for supplies 
for a county, furnished under the terms of a contract, and as 
the register of probate was without authority to make such 
a contract, apart from any action of the county commis- 
sioners thereon, and as the provisions of G. L., c. 34, § 17, 
were not complied with, in that the contract for such sup- 
plies, if interpretable as a contract of the commissioners, 
was not advertised by the county commissioners, you are 
advised that said account is not a proper one for certification 
by the Director of Accounts. 



November 10. 



Department of Public Health — Inspection of 
Milk — Interstate Commerce. 

An entry into a railroad car for the purpose of taking samples of milk therein may 
not be made by an inspector of the Department of Public Health if such car 
is in the control of a carrier who has operated it for the purpose of an interstate 
shipment of the milk, even if such car be at or near the consignee's unloading 
platform. 

^ssiw°^' You have asked my opinion as to "the rights of the in- 

PubUc^Heaith. gpectors" of the Department of Public Health "to enter 
milk cars on railroads in this State and take samples of 
milk consigned to persons engaged in the milk business in 
this State." 

My answer to your question is that your inspectors may 
enter milk cars on railroads for the purpose of taking samples 
of milk only when the milk is not being carried as a subject 
of interstate commerce. 

G. L., c. 94, § 35, authorizes an entry, for the purpose of 
taking samples, into vehicles used for the conveyance of 
milk, but in the last sentence of said section it is specifically 
provided that "this section shall not apply to milk in the 



ARTHUR K. READING, ATTORNEY-GENERAL. 383 

course of interstate commerce." The phrase "in the course 
of interstate commerce," as used in the instant statute, 
indicates a period covering at least the time between the 
consignment of the commodity to a carrier for interstate 
shipment and its dehvery at the point of destination to the 
consignee. The time when the deUvery to the consignee is 
made is to be determined in any given instance by a con- 
sideration of all the facts in relation thereto. As a general 
proposition, milk is "in the course of interstate commerce," 
within the meaning of the statute, when it is in a railroad 
car of the interstate carrier, over which such carrier still 
properly retains control through its servants, even though 
the car be at or near the consignee's establishment or his 
unloading platform. It is possible that there may be such 
a delivery of the loaded car to the consignee at his private 
platform, with such a complete abandonment and surrender 
of the control thereof by the carrier, as will constitute a 
termination of the course of interstate commerce, but until 
there has been such an abandonment of control of the car it 
cannot be said that final delivery to the consignee, which 
would break the course of interstate commerce with relation 
to the milk, has taken place until the commodity has at least 
been unloaded. 



Board of Dental Examiners — Practice of Dentistry 
— Registration — Married Woman. 

Only dentists practicing within the Commonwealth are required to pay an annual 
license. 

The power of the Board of Dental Examiners to revoke, cancel or suspend a certifi- 
cate of registration is limited by G. I-., c. 112, § 61, as amended. 

A woman dentist who marries must obtain a certificate in her married name. 

You have asked my opinion upon the following questions : — ^° o'f^i^'^is-' 

tration. 

1. Would St. 1927, c. 147, require dentists who are registered in ,, 1927 

, , , , ..... , „ ? November 16. 

Massachusetts but practicing dentistry in another State to register annu- 

ally in Massachusetts and pay a fee, in order to maintain their standing 
as legally authorized practitioners of dentistry in Massachusetts? Should 



384 OPINIONS OF THE ATTORNEY-GENERAL. 

dentists who are registered in Massachusetts but practicing dentistry in 
the army or navy and regularly enlisted in the United States service, be 
required to register annually with and pay a fee to the Massachusetts 
Board of Dental Examiners in order to maintain their standing as legally 
authorized practitioners of dentistry of Massachusetts? 

2. What action, if any, should the Board of Dental Examiners take 
with dentists who are convicted of a misdemeanor by the courts and pay 
the penalty of their crime? Has the Board the power to penalize them 
further by suspension or revocation of their licenses to practice dentistry? 

3. Is it necessary for duly registered women dentists of Massachu- 
setts who marry to have new certificates engrossed in their married name 
in order legally to practice dentistry in Massachusetts? 

1. St. 1927, c. 147, amending G. L., c. 112, § 44, is as 
follows : — 

Every registered dentist when he begins practice, either by himself 
or associated with or in the employ of another, shall forthwith notify the 
board of his office address or addresses, and every registered dentist 
practicing as aforesaid shall annually, before April first, pay to the board 
a license fee of two dollars. Every registered dentist shall also promptly 
notify the board of any change in his office address or addresses and shall 
furnish such other information as the board may require. The board may 
suspend the authority of any registered dentist to practice dentistry for 
failure to comply with any of the foregoing requirements. The board 
shall publish annually complete lists of the names and office addresses of 
all dentists registered and practicing in the commonwealth, arranged 
alphabetically by name and also by the towns where their offices are situ- 
ated. Every registered dentist shall exhibit his full name in plain readable 
letters in each office or room where his business is transacted. 

This act requires that every registered dentist who is 
practicing by himself, or who is associated with or in the 
employ of another, shall annually pay to the Board a license 
fee of two dollars. I am of the opinion that this provision 
appUes only to such dentists as are practicing within this 
Commonwealth. The act further provides that the Board 
shall publish annually a list of all registered dentists who are 
practicing in the Commonwealth, which provision indicates 
that it was the intention of the Legislature to limit the ap- 
pHcation of this section to such dentists. The duty to pay 
a license fee under this act is predicated upon actual prac- 



ARTHUR K. READING, ATTORNEY-GENERAL. 385 

ticing of dentistry, differing in this respect from certain other 
Hcense fees which are due and payable regardless of whether 
the licensee actually is performing the work required to be 
licensed. I therefore answer the first part of your first 
question in the negative. 

With reference to those registered dentists who are in 
the United States service practicing dentistry in the army 
or navy, I advise you that they are not required to pay the 
annual license fee unless they are engaged in private prac- 
tice in this Commonwealth apart from their official duties 
in the army or navy. 

2. With reference to your second question, the law in 
question is found in G. L., c. 112, § 61, as amended by St. 
1921, c. 478, which is as follows: — 

Except as othenvise provided by law, each board of registration in 
the division of registration of the department of civil service and regis- 
tration, after a hearing, may, by a majority vote of the whole board, 
suspend, revoke or cancel any certificate, registration, license or authority 
issued by it, if it appears to the board that the holder of such certificate, 
registration, license or authority, is insane, or is guilty of deceit, mal- 
practice, gross misconduct in the practise of his profession, or of any 
ofTence against the laws of the commonwealth relating thereto. Any 
person whose certificate, registration, license or authority is suspended 
or revoked hereunder shall also be liable to such other punishment as 
may be provided by law. The said boards may make such rules and 
regulations as they deem proper for the filing of charges and the conduct 
of hearings. 

The above section applies to the Board of Dental Ex- 
aminers, and clearly sets forth its duties and powers. 
Assuming that a case arises in which the Board, under the 
above statute, has the power to revoke, cancel or suspend, 
the exercise of this power in the particular case is a matter 
for the judgment and discretion of the Board. The Board 
may not suspend, revoke or cancel a certificate of registra- 
tion for the reason that it appears to the Board that the 
holder thereof is guilty of an offense against the laws of the 
United States relating to the practice of his profession. It 
is confined solely to the reasons set forth in the act above 



386 OPINIONS OF THE ATTORNEY-GENERAL. 

cited. With reference to the particular cases mentioned 
in your letter, the Board may not act by reason of the 
violation of the Federal laws, but if it appears to the Board 
that either of the persons mentioned is guilty of deceit, 
malpractice or gross misconduct in the practice of his pro- 
fession, it may suspend, revoke or cancel the certificate. 

Under the act the Board clearly has the power to revoke, 
suspend or cancel if it appears to it that the holder of a 
certificate is guilty of an offense against the laws of the 
Commonwealth relating to the practice of his profession, 
but here also the exercise of this power in any given case lies 
within the sound discretion of the Board. 

It is also to be noted that under the authority of St. 1927, 
c. 147, the Board may suspend the authority of any regis- 
tered dentist to practice dentistry for failure to comply 
with certain provisions of that act. 

3. The statutes applicable to your third question are as 
follows : — 

G. L., c. 112, § 44, as amended, states, in part: — 

Every registered dentist shall also promptly notify the board of any 
change in his office address or addresses and shall furnish such other 
information as the board may require. 

G. L., c. 112, § 45, provides: — 

In proof of this right the certificate or a duplicate shall be kept in his 
office in plain view of his patients, and, on application, shall be shown to 
any member or agent of the board. 

G. L., c. 112, § 49, provides: — 

No person shall conduct a dental office under any name other than 
that of the dentist actually owning the practice, or a corporate name con- 
taining the name of such dentist. 

G. L., c. 112, § 52, provides a penalty for any violation 
of the provisions of sections 43 to 53, inclusive, of said 
chapter for which no other penalty is provided. 

The statutes above cited indicate clearly that the correct 
name of the dentist shall be exhibited in each office or room 



ARTHUR K. READING, ATTORNEY-GENERAL, 387 

where his business is transacted, and that he shall keep in 
his office in plain view his certificate, or a duplicate, and 
shall show such certificate or duplicate to the Board on 
application. This necessarily implies that the certificate 
shall bear the correct legal name of the dentist, and it follows 
that a married woman who does not have a new certificate 
bearing her married name is violating section 45, for the 
reason that she has not a proper certificate in plain view 
of her patients and which she can show to the proper 
authorities. 

Further, it is to be noted that a married woman violates 
section 44, as amended, unless she exhibits her correct 
name in her offices: she also violates section 49 if she con- 
ducts a dental office under any name other than her correct 
name. I therefore answer your third question in the 
affirmative. 



Civil Service — Agent of Soldiers' and Sailors' Relief 
OF Fall River — Officer. 

The agent of soldiers' and sailors' relief of Fall River is not the head of a "prin- 
cipal department" nor an "officer" within the meaning of G. L., c 31, § 5, as 
amended. 

You request my opinion as to whether the agent of TotheCom- 

•^ -^ '-' missioner of 

soldiers' and sailors' rehef of Fall River is the head of a '-^'"''^llT'*'^- 
principal department within the meaning of G. L., c. 31, November 25. 
§ 5, as amended by St. 1923, c. 130. 

The following facts appear as to the position : The duties 
of the agent are not fixed by charter or ordinance and there 
is no department of soldiers' and sailors' relief in the fist 
of departments and officers created by the charter and 
ordinances of the city of Fall River. The affairs of the 
soldiers' and sailors' rehef are administered by a committee 
of the board of aldermen in that city, to whom the agent 
reports his activities. The committee in turn reports to 
the full board of aldermen. The duties of the agent are to 



388 OPINIONS OF THE ATTORNEY-GENERAL. 

investigate and report upon cases within the field of sol- 
diers' and sailors' relief. The agent deals with no officer of 
the city government except the chairman of the committee 
of the board of aldermen referred to above, and has himself 
no authority to disburse cash relief, which is paid by the 
city treasurer only on the order of the board of aldermen. 
He has authority to give orders for fuel, groceries and other 
necessaries, subject to later ratification by the board of 
aldermen, which ratification has always been given. The 
only written instructions given to the agent in the per- 
formance of his duties are those contained in pamphlets 
issued by the Division of State Aid and Pensions. The 
agent, as a matter of practice, receives no instructions 
directly from the mayor of the city, either orally or in 
writing. An assistant to the agent has been appointed, 
who deals only with the agent, but who, because of the 
division of work between the agent and assistant, receives 
no directions or orders from the agent. 

In view of the fact that there is no department of soldiers' 
and sailors' relief provided for in the charter or ordinances 
of the city of Fafi River, it cannot be said that the agent of 
soldiers' and sailors' rehef is the head of a department of 
the city. A fortiori it cannot be said that he is the head 
of a principal department within the meaning of the pro- 
visions of G. L., c. 31, § 5, as amended by St. 1923, c. 130, 
which reads as follows : — 

No rule made by the board shall apply to the selection or appointment 
of any of the following : 

Judicial officers; officers elected by the people or, except as otherwise 
expressly provided in this chapter, by a city council; officers whose ap- 
pointment is subject to confirmation by the executive council, or by the 
city council of any city; officers whose appointment is subject to the 
approval of the governor and council; officers elected by either branch of 
the general court and the appointees of such officers; heads of principal 
departments of the commonwealth or of a city except as otherwise pro- 
vided by the preceding section; directors of divisions authorized by law 
in the departments of the commonwealth; employees of the state treas- 
urer appointed under section five of chapter ten, employees of the commis- 



ARTHUR K. READING, ATTORNEY-GENERAL. 389 

sioner of banks, and of the treasurer and collector of taxes of any city; 
two employees of the city clerk of any city; public school teachers; sec- 
retaries and confidential stenographers of the governor, or of the mayor 
of any city; clerical employees in the registries of probate of all the coun- 
ties; police and fire commissioners and chief marshals or chiefs of police 
and of fire departments, except as provided in section forty-nine; and 
such others as are by law exempt from the operation of this chapter. 

This section of the statute has been construed recently 
by the Supreme Judicial Court in Robertson v. Commis- 
sioner of Civil Service, Mass. Adv. Sh. (1927), p. 963. The 
language of that case, at page 965, makes it abundantly 
certain that only the positions of heads of departments 
which are clearly designated as principal departments by 
the charter and possibly by the ordinances of a city can be 
considered heads of principal departments within the mean- 
ing of the statute. The nature of the duties of the agent 
also strengthens the view that the incumbent of the position 
cannot be described as the head of a principal department. 

I must therefore advise you that the position of agent 
of soldiers' and sailors' relief is not that of the head of a 
principal department. I am also of the opinion, upon the 
authority of the Robertson case above cited, that the in- 
cumbent of the position, in view of the nature of the duties 
of the position, is not an "officer" within the meaning of 
G. L., c. 31, § 5, as amended. 



Change of Name — Birth Records — Town Clerk. 

A record of birth may not be amended by a town clerk so as to insert in place of 
the person's name, as originally recorded, a new name which he has become 
entitled to use by virtue of a decree of a Probate Court. 

You have asked my opinion as to whether a record of J°J}^„ 
birth, which was correctly recorded some time ago, may be 
amended or changed so as to insert therein the person's 
new name, which was properly changed by a decree of the 
Probate Court. The pertinent provisions of law are as 
follows : — 



Secretary. 
1927 
December 22. 



390 OPINIONS OF THE ATTORNEY-GENERAL. 

G. L., c. 46, § 5, provides: — 

When necessary to supply deficiencies in the birth records, he (the 
town clerk) may enter therein any written information obtained by him 
but he shall not change facts already recorded except as provided in 
section thirteen or except to correct errors in copying from notices, reports 
or certificates on file in his office. 

G. L., c. 46, § 13, as amended by St. 1925, c. 281, § 2, 
provides : — 

If the record relating to a birth, marriage or death does not contain 
all the required facts, or if it is claimed that the facts are not correctly 
stated therein, the town clerk shall receive an affidavit containing the 
facts required for record, if made by a person required by law to furnish 
the information for the original record, or, at the discretion of the town 
clerk, by credible persons having knowledge of the case. . . . He shall 
file any affidavit submitted under this section and record it in a separate 
book kept therefor, with the name and residence of the deponent and the 
date of the original record, and shall thereupon draw a line through any 
incorrect statement, or statements, sought to be amended in the original 
record, without erasing them, shall enter upon the original record the facts 
required to correct, amend or supplement the same and forthwith, if a 
copy of the record has been sent to the state secretary, shall forward to 
the state secretary a certified copy of the corrected, amended or supple- 
mented record upon blanks to be provided by him, and the state secretary 
shall thereupon correct, amend or supplement the record in his office. 

Section 5, quoted above, specifically states that the town 
clerk shall not change facts already recorded. This state- 
ment is modified by providing for two exceptions; one of 
these is not pertinent to the present case and the other 
provides for a change only in accordance with section 13. 
As section 13 is an exception to the general rule, it must be 
construed strictly. 

Section 13 provided only for such amendments or changes 
as were necessary to render the facts recorded therein 
correct at the time of the recording, and, in my opinion, 
did not contemplate that subsequent events, such as a 
change of name, should be entered into the record by way of 
correction or amendment. This section was amended by 
St. 1925, c. 281, § 2, by providing for the amendment of 



ARTHUR K. READING, ATTORNEY-GENERAL. 391 

the record in cases where illegitimate children were subse- 
quently legitimatized so that the record would read as if 
the person had been born to its parents in lawful wedlock. 
No provision was made as to amending the record in cases 
where the name as recorded was subsequently changed. 
The law governing this question, therefore, stands as it 
did prior to this amendment, and it is my opinion that the 
change of name may not be entered upon the record. In 
this connection I call your attention to VI Op. Atty. Gen. 
619. 



Probate Courts — Petitions for Administration 
DE Bonis non with the Will annexed — Fees. 

Upon a petition for administration de bonis non with the will annexed no entry fee 
should be required if a fee has already been paid upon an original petition or 
if an original petition was entered prior to the effective date of St. 1926, c. 363. 



To the Treas- 



You have asked my opinion whether a fee is collectible ur°erandRe-' 

ceiver Genera 

1927 
December 29. 



by registers of probate under St. 1926, c. 363, § 2, (1) upon "'"''"'1^27'^''''^ ■ 



a petition for administration de bonis non with the will 
annexed in a case where a fee has already been paid at the 
entry of the petition for the probate of the will, and (2) 
upon a petition for administration de bonis non in an estate 
where the original petition for administration was filed 
before the said statute was passed, so that this subsequent 
petition is incidental to a proceeding upon which no fee was 
required to be paid. 

In my opinion, no fee should be charged upon either of 
these petitions. It is of no consequence that the original 
petition in an estate was filed before the said statute was 
passed. The purpose of the statute was to charge a fee 
upon certain kinds of petitions filed after the effective date 
of the statute. There is no retroactive provision as to 
petitions filed before the statute was passed. 

The relevant portion of G. L., c. 262, § 40, as amended 
by St. 1926, c. 363, § 2, is as follows:— . 



392 OPINIONS OF THE ATTORNEY-GENERAL. 

The fees of registers of probate and insolvency, payable in advance 
by the petitioner or libellant, shall be as follows : — 

For the entry of a petition for the probate of a will, for administration 
on the estate of a person deceased intestate, . . . and, except when the 
petition is certified by the register or assistant register to be incidental to 
proceedings already pending in the same county, for the entry of a peti- 
tion for the appointment of a special administrator, conservator, trustee, 
receiver of the estate of an absentee, or of a guardian . . . three dollars. 

A petition for administration de bonis non with the will 
annexed is clearly not within the provisions of this statute. 
It is plain that a petition for administration de bonis non 
with the will annexed is not a petition for the probate of a 
will, but presupposes a prior and successful petition for 
probate. It is equally clear that it is not a petition for 
administration on the estate of a person deceased intestate, 
but presupposes the existence of a valid will. The first 
petition regarding which you ask my opinion is therefore 
not subject to a fee, because it is not within the words of the 
statute. 

The answer to your second inquiry is more difficult. A 
petition for administration de bonis non is clearly within 
the literal wording of the statute, to wit, "for administration 
on the estate of a person deceased intestate." It is my 
opinion, however, that the fee in question was intended to 
be charged only upon original petitions for probate and 
original petitions for administration. The intent of the 
statute, as shown by its exclusion of a petition for adminis- 
tration de bonis non with the will annexed, and by its excep- 
tion when the petition in certain proceedings is certified 
by the register to be incidental to proceedings already 
pending in the same county, seems pretty clearly to be to 
exclude all except original petitions, on an analogy to 
entry fees in our other courts. 



arthur k. reading, attorney-general. 393 

District Attorney for the Northern District — 
Special Assistants. 

A justice of the Superior Court may not appoint a special assistant district attorney 
for the Northern District if there be an assistant district attorney in office. 

You request my opinion upon the following question: ^°ptMu.rney 

for the North- 
Can a justice of the Superior Court, upon the request of the District ''''" j^!^^''''^*- 
Attorney for the Northern District, appoint a special assistant district January 25. 
attorney under the provisions of G. L., c. 12, § 18, when there are reg- 
ular assistants in office? 

G. L., c. 12, § 18, reads as follows: — 

If there is no assistant district attorney, the court may allow a reason- 
able sum, payable from the county treasury, for the services of a clerk 
to aid the district attorney; and in the northern, eastern, middle and 
southeastern districts, the court may appoint, for the sitting at which 
the appointment is made, a competent person to act as an assistant to 
the district attorney and his compensation, not exceeding six hundred 
dollars in one year, shall be paid from the county treasury. 

In the recent case of Commonwealth v. Sacco, 255 Mass. 
369, 444, the court held that there can be no appointment of 
a special assistant district attorney if there be in office an 
assistant district attorney who has been duly appointed. 

The restriction applies only in the case of appointments 
in the Northern, Eastern, Middle and Southeastern districts. 

I therefore answer your question in the negative. 



Board of Retirement — Death of Employee — 
Widow's Pension. 

If the Board of Retirement finds as a fact that work performed by an employee 
of the Commonwealth was done in the performance of his duties, and that 
such work contributed to his death, it may award a pension to his widow. 

You have asked my opinion as to two questions in refer- ^l^^^^f 
ence to certain facts which are briefly summarized herein : — ^''*'J^^;^'"°'- 

An employee of the Metropolitan Sewerage Division, ^^^^'^ys- 
who was suffering from organic valvular disease of the heart, 



394 OPINIONS OF THE ATTORNEY-GENERAL. 

was engaged in carrying a heavy pipe, with the aid of 
another man, from one room at the East Boston Pumping 
Station to the basement thereof. Immediately after reach- 
ing the basement he dropped to the floor and shortly there- 
after died, the death certificate giving as the cause of his 
death organic valvular heart disease. Nothing unusual 
occurred while the employee was engaged in this work, nor 
was there anything requiring extra exertion on his part. 
Your questions are as follows : — 

1. Would it be proper and according to the facts in this case to rule 
that there were no "injuries" according to paragraph (9) or (10) but that 
death resulted from a pre-existing ordinary disability of heart disease? 

2. Has our Board the legal authority to find that the acceleration of a 
pre-existing disability of heart disease, without any accidental force being 
present, but nevertheless causing death in the course of employment, is 
sufficient "injuries" for the compensation to be awarded to the widow 
under paragraph (10) of section 2? 

As the answer to each question deals directly with the 
answer to the other, both are considered together. 

The pertinent law is contained in G. L., c. 32, § 2, par. 
(10), as amended by St. 1921, c. 487, § 5, and is as follows: — 

If any member is found by the board to have died from injuries re- 
ceived while in the discharge of his duty, and leaves a widow, or if no 
widow any child or children under the age of sixteen, a pension equal to 
the retirement allowance to which such member would have been entitled 
under paragraph (9) had he been permanently incapacitated shall be paid 
to such widow so long as she remains unmarried, or for the benefit of such 
child or children so long as he or any one of them continues under the 
age of sixteen. A person receiving a pension under this paragraph shall 
not receive from the commonwealth any other sum by way of annuity, 
pension or compensation. 

Paragraph (9), referred to herein, does not affect the 
action of the Board in this case except in so far as the 
amount of the pension is concerned, and it follows that the 
provisions of paragraph (9), to the effect that the injuries 
must be sustained through no fault of the employee, are not 
appUcable in death cases under paragraph (10). 

The mere fact that the employee had been suffering from 



ARTHUR K. READING, ATTORNEY-GENERAL. 395 

heart trouble for some time prior to his death does not of 
itself take his case out of the provisions of the act. Even 
if he was so suffering, his widow is entitled to the pension if 
his death was accelerated or hastened by the work done. 
Under decisions of the Supreme Judicial Court in somewhat 
similar cases it has been decided that lifting and other 
physical effort which causes death to a person afflicted with 
heart trouble may be an "injury" if it in any way is a con- 
tributing cause of the death, and even though it would not 
have caused death except for the defective heart condition. 
Brightman's Case, 220 Mass. 17; Fisher's Case, 220 Mass. 
581. Nor, in my opinion, is it of importance that the work 
in which the employee was engaged was not unusual or of 
the type requiring extra exertion. If the work was done in 
the performance of his duties and if it contributed to his 
death, the Board may well find that the employee died from 
injuries received while in the discharge of his duty. Whether 
or not the work done by the employee in this case was a 
contributing cause of death is a fact to be found by the 
Board, and if the Board finds that it was such a cause, the 
widow is entitled to the pension. This, in my opinion, 
is the whole crux of the case, and it is the duty of the Board, 
upon all the evidence, to ascertain this fact. 

Specifically referring to your first question, I repeat that 
you can find that there were no injuries, within the meaning 
of the act, only if upon all the evidence the work done did 
not contribute to the employee's death, and this is a ques- 
tion of fact which must be determined by the Board. 

Assuming the facts stated in your second question to be 
true, I answer it in the affirmative. 



396 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the 
House Com- 
mittee on Bills 
in the Third 
Reading. 
1928 
February 7. 



Constitutional Law — Municipalities — Shellfish. 

Municipalities may be authorized by the Legislature to establish plants for the 
purifying of shellfish taken therein. 

You have asked my opinion as to the constitutionahty 
of House Bill No. 945, which is as follows: — 

A city or town may establish and maintain a plant for the purpose 
of purifying shellfish taken in such city or town. Such plant shall be 
established and maintained under the direction of the mayor or board 
of selectmen or a person designated by said mayor or board. Said maj'^or 
or board shall also establish fees sufficient to cover the cost of maintain- 
ing and operating the plant, which shall be collected for service rendered 
thereby. 

It is true that ordinarily cities and towns may not 
engage in a private business, even though such business 
would be of advantage to its inhabitants. The present act, 
however, to my mind, obviously contemplates a public 
purpose, as it is closely connected with the important 
public purpose of protecting the health of the public. It is 
a well-known fact that shellfish may constitute a serious 
menace to the health and well-being of a community, and 
any reasonable measure contemplated to check or eliminate 
this menace is consistent with the power of the Legislature. 
I therefore advise you that, in my opinion, the law, if 
enacted, will be constitutional. 



To the Com- 
missioner of 
Labor and 
Industries. 

1928 
February 8. 



Municipalities — Employees — Vacations. 

Action by a city council, under Gen. St. 1915, c. 60, is a prerequisite to the right of 
a municipal laborer to receive a vacation by virtue of said statute. 

A municipal laborer is entitled to a vacation, under the provisions of St. 1914, 
c. 217, and St. 1927, c. 131, only while he is upon the pay roil. 

You have asked my opinion upon the following questions: 

1. In the case of a city or town which accepted St. 1914, c. 217, is a 
laborer who is otherwise qualified as required by statute, entitled to a 
vacation if the city council has taken no action under Gen. St. 1915, c. 60? 

2. Is a laborer who worked thirty-two weeks in the aggregate during 



ARTHUR K. READING, ATTORNEY-GENERAL. 397 

the preceding calendar year, and who is discharged at some period in the 
ensuing year before he has received his vacation, entitled to a vacation? 

3. Is a laborer who has worked thirty-two weeks in the aggregate in 
the course of a calendar year, and who is discharged on the last day of 
that year, entitled to a vacation in the ensuing year? 

4. The act provides that the Department of Labor and Industries 
shall have all the necessary powers to enforce this statute. Since no 
penalty is provided for violations of the statute and no prosecution can 
be instituted against the person violating the statute, what other powers 
has the Department of Labor and Industries to enforce this law? 

1. In answer to your first question, I am of the opinion 
that a laborer who is employed by a city and who is other- 
wise qualified is not entitled to a vacation under this chapter 
unless the city council has taken the action described therein. 
St. 1914, c. 217, provided as follows: — 

Section L All persons classified as laborers, or doing the work of 
laborers, and regularly employed by cities or towns for more than one 
year, shall be granted a vacation of not less than two weeks during each 
year of their employment, without loss of pay. 

Section 2. This act shall be submitted to the voters of each of the 
cities and towns of the commonwealth at the next annual state election 
for their acceptance or rejection, and shall take effect in any city or town 
upon its acceptance by a majority of the voters voting thereon in the 
affirmative. 

This statute was affected by Gen. St. 1915, c. 60, which 
provided as follows : — 

Any city in which a majority of the voters at the last state election 
voted to accept the provisions of chapter two hundred and seventeen 
of the acts of the year nineteen hundred and fourteen may by vote of the 
city council, approved by the mayor, or by vote of the commission in 
any city under a commission form of government, require the heads of 
the executive departments to grant a vacation of two weeks without loss 
of pay to any person regularly employed by such city who is classified 
as a common laborer, skilled laborer, mechanic or craftsman in the labor 
service, as classified by the civil service commission, under regulations 
established by said commission for cities to which the labor rules adopted 
by the civil service commission are or may become applicable. If such 
vacations are authorized, they shall be granted by the heads of the execu- 
tive departments, and shall begin at such times as in the opinion of the 



398 OPINIONS OF THE ATTORNEY-GENERAL. 

heads of the executive departments will cause the least interference with 
the performance of the regular work of the city. 

There were several other acts, between this latter act and 
the effective date of the General Laws, affecting this ques- 
tion. The General Laws repealed all of these acts but one, 
and that one was in substance re-enacted by the General 
Laws. Several changes, not affecting the answer to your 
first question, were made subsequently, culminating in 
St. 1927, c. 131, which provides as follows: — 

In any town which accepted chapter two hundred and seventeen of 
the acts of nineteen hundred and fourteen, all persons classified as laborers, 
or doing the work of laborers, regularly employed by such town, shall be 
granted a vacation of not less than two weeks during each year of their 
employment, without loss of pay. In any city which accepted said 
chapter the city council may determine that a vacation of two weeks 
without loss of pay shall be granted to every person regularly employed 
by such city as a common laborer, skilled laborer, mechanic or craftsman. 
If such vacations are authorized, they shall be granted by the heads of 
the executive departments of the city at such times as in their opinion 
will cause the least interference with the performance of the regular work 
of the city. A person shall be deemed to be regularly employed, within 
the meaning of this section, if he has actually worked for the city or town 
for thirty-two weeks in the aggregate during the preceding calendar 
year. The department of labor and industries shall enforce this section, 
and shall have all necessary powers therefor. 

Under this act it follows that in cities the city council 
must act before a laborer is entitled to any vacation. This 
has been the law at all times since the effective date of Gen. 
St. 1915, c. 60. In towns no action by the selectmen or 
any other body ever has been or is now necessary. A 
laborer employed by a town is entitled to his vacation, if 
otherwise qualified, without any action on the part of the 
selectmen. 

2. As to your second question, I am of the opinion that a 
laborer who worked thirty-two weeks in the aggregate in 
the preceding calendar year, and who is discharged at some 
period in the ensuing year before he has received his vaca- 
tion, is not entitled to a vacation. The word "vacation" 



ARTHUR K. READING, ATTORNEY-GENERAL. 399 

implies a period of rest between periods of employment, and 
may not properly be used in reference to a period of rest after 
employment ceases. It contemplates that a person should 
be employed at the time it commences. The act states 
that a person shall be deemed to be regularly employed, 
within the meaning of the section, if he has actually worked 
for the city or town for thirty-two weeks in the aggregate 
during the preceding calendar year. This, however, does 
not mean that a person qualifies for a vacation even though 
he is not at the time in the employ of the city or town. The 
definition purports to define the word "regularly" only, 
leaving the word "employed" to its ordinary common-sense 
meaning. Any other construction of the act would be 
unreasonable and not in accord with the intent of the 
Legislature. 

The above is obviously true with reference to a town which 
has accepted the provisions of St. 1914, c. 217. St. 1927, 
c. 131, states that in such a town laborers shall be granted a 
vacation "during each year of their employment." These 
words tend to indicate that the person must be employed 
at the time the vacation is to commence. It is further to 
be noted that in both cities and towns the vacation is to be 
given "without loss of pay." These words also imply that 
the person to whom the vacation is given is on the pay roll 
at the time the vacation commences. If this were not so, 
the money paid would be in the nature of a bonus or gift 
rather than pay. 

If a man is discharged arbitrarily, for the sole purpose of 
depriving him of a vacation, it may well be that the above 
statement of the law would not be applicable, and I express 
no opinion as to the law covering such a case. 

3. What has been said in reference to the second question 
applies also to your third question. 

4. No penalty is provided for violation of St. 1927, c. 131. 
The duties prescribed by the act fall upon officers of cities 
and towns, and in most cases these men will conform to the 
law even though no penalty is prescribed. In my opinion. 



400 



OPINIONS OF THE ATTORNEY-GENERAL. 



a petition for mandamus could be successfully maintained 
by the person entitled to the vacation, in the event that his 
rights under this chapter were denied or abridged. Under 
the principle laid down in Attorney General v. Apportionment 
Commissioners, 224 Mass. 598, it is possible that the Attor- 
ney-General might institute a petition for mandamus to 
vindicate the public right, on the theory that rights con- 
ferred by this act benefit not only the laborer but also 
indirectly inure to the benefit of the public at large. 



Sewer 



Massachusetts Reformatory — Apportion- 
ment OF Expense. 



St. 1913, c. 138, as amended, requires the Commonwealth to pay a part of the 
expense of the Concord sewerage system, with which the Massachusetts 
Reformatory is authorized to connect its sewers. 



To the Com- 
missioner of 
Correction. 

1928 
February 10. 



You request my opinion on the following questions 
relative to the expense of construction of the main sewer 
line from Concord to Concord Junction : — 

1 . Is the statute of 1895 still in effect? 

2. To what extent was it modified by the law of 1906 authorizing an 
alternative sewerage system at the Massachusetts Reformatory? 

3. Was the 1895 law revived by the trivial amendments passed in 1913? 

4. To what extent is the Commonwealth obligated under the law, as 
it now stands, to contribute to the expense of this improvement, the 
Commonwealth's share of which, it is stated, will be in the vicinity of 
$50,000? 

I assume, although you do not so state in your letter, 
that the main sewer line in question was constructed by 
the town of Concord under the authority of St. 1895, c. 151. 
This act authorized but did not require the town of Concord 
to construct and maintain a sewerage system, provided the 
act was accepted by vote of the town within three years. I 
am advised that it was so accepted. 

The act further provided that whenever the said system 
should be established the sewers of the Massachusetts 



ARTHUR K. READING, ATTORNEY-GENERAL. 401 

Reformatory and other property of the Commonwealth in 
Concord should be connected with the main sewer line of 
the town. 

The statute in question, not having been definitely limited 
in time by its terms or expressly repealed by any subsequent 
act of the Legislature, has been efTective and in force since 
its passage. I accordingly answer your first question in 
the affirmative. 

Resolves of 1906, c. 49, merely authorized the expenditure 
of a certain sum in order to provide additional means for 
the disposal of sewage at the Massachusetts Reformatory. 
It makes no specific reference to St. 1895, c. 151, and is not 
inconsistent with it. It therefore does not, either speci- 
fically or by implication, modify the latter statute, although 
the results achieved by works established under it may be a 
factor to be considered in ascertaining the extent of any 
obhgation on the part of the Commonwealth to compen- 
sate the town of Concord for the use of the latter's sewage 
disposal facilities. 

St. 1913, c. 138, amending St. 1895, c. 151, § 8, indicates 
the intent of the Legislature to treat the earlier act as still 
in force at that time. The shght verbal changes made by 
the amendment of the earlier statute do not alter its mani- 
fest purpose. Under the law the Commonwealth is obligated 
to pay for the privileges conferred and benefits received 
such part or percentage of the construction cost and operat- 
ing expense of the Concord sewerage system established 
under St. 1913, c. 138, as amended, as may be agreed upon 
with the said town, and, in the event of failure to reach an 
agreement, such compensation is to be determined by three 
commissioners to be appointed by the Supreme Judicial 
Court. 



402 



OPINIONS OF THE ATTORNEY-GENERAL. 



To the Com- 
missioner of 
Public Works. 

1928 
February 10. 



Motor Vehicles — Registration — Non-Residents. 

A person living in another State, who works regularly as an employee in a factory 
within the Commonwealth for a period of more than thirty days in the year, 
is not a non-resident, as that term is defined in G. Ij., c. 90, § 1. 

You have asked my opinion relative to the meaning of a 
clause of G. L., c. 90, § 1, in the following language: — 

Under the provisions of G. L., c. 90, § 1, a "non-resident" is defined 
as "any resident of any state or country who has no regular place of abode 
or business in the commonwealth for a period of more than thirty days 
in the year." Along the border of our State many residents of other 
States own automobiles properly registered in the States in which they 
live, which they operate every day or practically every day into the 
State of Massachusetts to places where they are employed. For instance, 
many of them come from Rhode Island to their place of employment in 
the jewelry factories in Attleboro. 

In such cases is the factory where the resident of the other State works 
a place of business within the definition above quoted in G. L., c. 90, § 1? 

I am of the opinion that if a person living in another State 
works regularly as an employee in a factory within the 
Commonwealth for a period of more than thirty days in the 
year he is not a "non-resident" within the terms of the 
definition set forth in said section 1. 

Whether or not in any given instance such employment 
is regular and in excess of the prescribed period is primarily 
a question of fact, for the determination of your Depart- 
ment or some division or officer thereof. 

The word "business" and the phrase "place of business," 
when used in statutory enactments, may have, respectively, 
more than one meaning, depending largely upon the con- 
text and the purpose and design of the statutes wherein 
they occur, as the latter throw hght upon the legislative 
intent in employing the words. In its general or broadest 
sense the word "business" denotes the employment or 
occupation in which a person is engaged to procure a living, 
and that irrespective of whether such person be in the service 
of another or not. Goddard v. Chaffee, 2 Allen, 395. Such 
general meaning should be given to the word as used in the 



ARTHUR K. READING, ATTORNEY-GENERAL. 403 

phrase "place of business" unless the context or the design 
of the statute wherein it occurs indicates that the word is 
to be interpreted in a more restricted sense, so as to exclude 
"trade or calling" or "place of employment," as embraced 
within the use of the word "business" or "place of business," 
respectively. Hanley v. Eastern S.S. Corpn., 221 Mass. 
125 (and cases there cited); Collector of Taxes v. New 
England Trust Co., 221 Mass. 384. 

One of the purposes or designs of the instant statute, in 
regard to the registration of motor vehicles and the licensing 
of operators thereof, appears to be to require such regis- 
tration and licensing of all vehicles and operators, respec- 
tively, as will render their regulation and identification easy 
of accomplishment by registration and licensing through the 
officials of this Commonwealth. Certain exceptions to the 
strict requirements of the general law in this respect are 
afforded to owners of vehicles registered or persons licensed 
in other States, obviously upon the theory that such vehicles 
and such persons will not be upon the roads of the Com- 
monwealth to the same extent as cars owned by residents 
or operators who are residents. A person who has a regular 
place of business in the Commonwealth, in the sense that 
he has a place where he carries on a trade for hire, is not 
likely to use the roads of Massachusetts less than one who 
has a place for the transaction of a business which is some- 
thing other than a trade or calling. The intent or design 
of G. L., c. 90, furnishes no ground for asserting that the 
phrase "place of business," in the clause under consideration, 
was intended by the Legislature to be interpreted in its 
narrow sense, so as to exclude places wherein a trade, 
employment or calling was regularly practiced by an in- 
dividual, thereby permitting such individual to be deemed 
a "non-resident" and within the exceptions to the general 
design of the law. 

Those persons who are to have the benefit of the excep- 
tions from the general law in this respect are entitled "non- 
residents," and the meaning of "non-residents," for the 



404 OPINIONS OF THE ATTORNEY-GENERAL. 

purpose of the statute, is carefully defined. The definition 
should be construed so as to give effect to the general 
design of the statute, which is Massachusetts registration 
and licensing for cars and operators. By the terms of the def- 
inition, owners and operators who come regularly into this 
State are, by reason of their presumably frequent use of 
our roads, excluded from the class of "non-resident." 
Presumable frequency of the use of our roads appears to 
be the test as to those residents of other States who may 
avail themselves of the privilege of exception from the 
general law as to local registration and license. The form 
of business which a person regularly carries on at a place 
within the Commonwealth would seem to bear no relation 
to the frequency of his use of our roads. There appears to 
be no good reason for differentiating in this respect between 
a class of persons whose regular business, carried on at a 
definite place in the Commonwealth, is a trade or calling 
and those whose business, carried on likewise at such a 
definite place, is of another type. Both classes may, and 
probably will, use our roads to the same extent in coming 
to and returning from their work to a place of abode outside 
Massachusetts. I do not think that the Legislature, in 
making this definition, intended to place in one class the 
man who labors at a bench or in a counting room and in 
another the man who works in his own executive office, 
and to make exceptions to the general law applicable to one 
and not to the other. 



Department of Public Health — Water Supply — 

Hearing. 

The Department of Public Health has no authority to reopen a hearing held under 
G. L., c. 40, § 41, after it has given its approval to a proposed taking for water 
supply thereunder. 

T9 the Com- You have asked my opinion as to whether the Depart- 

missioner of ./ ± 

PubHcjeaith. nient of Public Health has authority to reopen a hearing 
February 14. j^gj^j uuder the provlslous of G. L., c. 40, § 41, after it has 



ARTHUR K. READING, ATTORNEY-GENERAL. 405 

given its approval, subsequent to such hearing, to the 
purchase or taking of land by a city for a source of water 
supply; and whether or not, if it has such authority, it must 
grant such a rehearing. 

In regard to the particular matter before you, as to which 
your question is propounded, you advise me that the owner 
of land involved in the proposed taking was notified of the 
hearing and that a period of three months was given him, 
upon his request for delay, in which to appear and state 
his objections, which he did not do; that the hearing was 
duly held and notice of approval of the purchase or taking 
formally conveyed to the interested city, which thereafter 
did in fact take land in accordance with such approval; 
that subsequent to such taking the said owner filed with 
you a petition for a rehearing. 

I am not aware of any provision of the statutes which 
specifically authorizes a rehearing of the matters brought 
before your Department under G. L., c. 40, § 41; and after 
its approval has been acted upon by a municipality and a 
taking made in rehance thereon, it has not, in my opinion, 
authority to rehear such matters. 



County Accounts — Deputy Sheriff — Fees. 

Fees of a deputy sheriff who is a salaried chief of police may be allowed for services 
outside the town in which he serves as such chief. 

You request my opinion as to whether, under the pro- cCmmissioner 
visions of G. L., c. 262, § 50, as amended by St. 1922, c. 377, £^PBF'' 
§ 1, forbidding extra payments for "official services per- ^'^''^gSg' 
formed in any criminal case" to "a deputy sheriff, city ^'^ 'l^ ^^■ 
marshal or other police officer who receives a salary," an 
item in certain county accounts for allowance of payment 
of fees to a deputy sheriff, not the recipient of a salary or 
allowance in payment for services therefor, who is a salaried 
chief of police of a town, for serving criminal process in and 
for towns which maintain no regular police department. 



406 OPINIONS OF THE ATTORNEY-GENEEAL. 

for violations of law therein, is proper for approval by the 
Director of Accounts. 

G. L., c. 262, § 50, provides, in part, as follows: — 

No . . . deputy sheriff, . . . city marshal or other police officer 
who receives a salary or an allowance by the day or hour from the com- 
monwealth or from a county, city or town, shall, except as otherwise 
hereinafter provided, be paid any fee or extra compensation for official 
services performed by him in any criminal case; ... or for testifying 
as a witness in a criminal case during the tinie for which he receives such 
salary or allowance; . . . but his expenses, necessarily and actually 
incurred, and actually disbursed by him . . . shall ... be paid . . . 
■ in a criminal case tried in a district court ... by the town where the 
crime was committed. 

The statute first recites seriatim the officials, by title, to 
whom its provisions, purposing prevention of receipt by 
salaried officers of double compensation for the same working 
time, and prohibition of their interest in fees, are applicable. 
Incumbency of office, receipt of salary or allowance and 
performance of an official service in any criminal case, by 
any one of the officials recited, are the circumstances by 
which the provisions operate, in any given case, to preclude 
extra payment for "official services." Though the "official 
services" include any and all services in any criminal case 
incident to the services required of any one of the officers, 
they relate to those services, performed by any one of the 
officials recited, which are incident and peculiar to the 
services required of such official in the capacity for which 
he receives a salary or a daily or hourly allowance. 

In my opinion, the receipt of a salary for official services 
as a chief of pohce of a town, by a person who is also a 
deputy sheriff, does not, under the circumstances you recite, 
preclude payment of fees to such person for official services 
as a deputy sheriff in serving criminal process in and for 
other towns for violations of law therein, and you are there- 
fore advised that the item as to which you inquire is a 
proper one for approval by the Director of Accounts. 



arthur k. reading, attorney-general. 407 

County Treasurer — County Tuberculosis Hospital 
Treasurer — Salary. 

A county treasurer serving as treasurer of a county tuberculosis hospital may 
receive compensation for the work of both offices, in the absence of a statute 
making the duties of the latter position part of those of the former. 

You request my opinion whether a county treasurer, in commissioner 
the event he serves as treasurer of a county tuberculosis tions'fnl"' 
hospital by appointment of the county commissioners, '^'"i928' 
may receive compensation for such service in addition to his " "^^^ 
salary as county treasurer. 

G. L., c. 35, § 4, estabhshes the basis of salaries payable 
to treasurers of certain counties *'in full for all services 
performed by them." 

The services, obviously, are those required to be per- 
formed by an encumbent as part of or incident to duties 
as a treasurer of a county, as prescribed by statute. 

G. L., c. Ill, § 81, as amended by St. 1924, c. 500, § 2, 
provides for the erection of hospitals in counties by county 
commissioners for hospital care of certain persons in certain 
municipalities in the counties. Sections 83 and 85 provide 
for apportionment and collection of amount for erection 
and maintenance of the same from the municipalities served. 

Such municipalities comprise districts as entities separate 
from the counties. A hospital so erected for such service 
to municipahties is therefore a county district hospital. 
The treasurer of such a hospital is therefore not an employee 
of the county, as such. Peck's Case, 250 Mass. 261, 268. 

G. L., c. Ill, § 87, authorizes appointment by the county 
commissioners of officers and employees necessary for the 
proper conduct of said hospitals. 

In the absence of any statute requiring treasurership 
of a county district tuberculosis hospital as part of the 
duties of a county treasurer, as such, in any particular 
county, the services of the former are not included in the 
services of a county treasurer, for the performance of all 
of which G. L., c. 35, § 4, prescribes a salary in full, and, in 



408 



OPINIONS OF THE ATTORNEY-GENERAL. 



the event that the county commissioners appoint a county 
treasurer to serve as treasurer of such a hospital, he may, 
in my opinion, receive compensation therefor in addition 
to his salary as county treasurer. 



Insurance 



Title Insurance Company 
signer of Insurance. 



COMMIS- 



The Commissioner of Insurance, in reviewing the articles of a proposed title 
insurance company, may consider with relation thereto the purposes of the 
corporation in the light of G. L., c. 175, § 47, cl. 11th. 



To the Com- 
missioner of 
Insurance. 

1928 
February 23. 



You have requested my opinion upon several questions 
relative to the incorporation of a title insurance company, 
and have set forth the statement of the purposes for which 
such company is formed, as contained in its articles of 
organization submitted to you for your approval. 

Your questions are as follows : — 

1. May the Commissioner in reviewing said articles consider the 
purposes contained in the second to fifth paragraphs above quoted? 

2. May the Commissioner under said section 49 lawfully approve the 
purposes set forth in the second, third, fourth or fifth paragraphs above 
quoted? 

3. Do the provisions of said section 49 restrict the purposes to be set 
forth in the articles of a domestic insurance company to those contained 
in one or more of the several clauses of section 47 of said chapter, and 
may the Commissioner lawfully refuse to approve articles containing any 
purposes other than those set forth in said section 47 as aforesaid? 

4. May a domestic insurance company formed to transact business 
under said clause eleventh exercise all of the powers specified in the said 
second to fifth paragraphs, and if not, what powers of those so specified 
may it exercise? 

1. I answer your first question in the affirmative. 

A distinction is to be drawn between the purposes and 
the powers of a corporation. G. L., c. 175, § 47, cl. 11th, 
sets forth the only lawful purposes for which a corporation 
of the character indicated by the instant articles of organiza- 
tion may be organized. A corporation organized for such 



ARTHUR K. READING, ATTORNEY-GENERAL. 409 

purposes has by implication of law certain powers necessary 
or convenient to enable it to carry out such purposes. 
Paragraphs two to five of the articles of organization sub- 
mitted to you do not purport to set forth any other purposes 
than those to which such a corporation is hmited by the 
stated statutory clause. Such paragraphs merely purport 
to define the powers which the corporation may exercise 
in effectuating such purposes. The incorporators may not 
by the inclusion, in such defined powers, of powers not 
necessary or convenient to the carrying out of its designated 
purposes, but calculated, if exercised, to add to such pur- 
poses, evade the limitations of clause 11th and create an 
organization virtually having purposes additional to those 
allowed by the statute. The Commissioner is therefore 
bound to examine all the paragraphs of the articles of 
organization, with a view to determining whether the powers 
of the corporation, as therein set forth, are in excess of those 
which may properly be exercised by a company which may 
be formed only to effectuate the limited purposes designated 
in said clause 11th. 

Moreover, G. L., c. 175, § 49, as amended, provides: — 

The company shall be formed in the manner described in and be 
subject to section nine of chapter one hundred and fifty-five, and sec- 
tions six and eight to twelve, inclusive, of chapter one hundred and 
fifty-six . . . 

. . . the articles of organization . . . shall, with the records and 
by-laws of the company, be submitted to the commissioner (of insur- 
ance) instead of to the commissioner of corporations and taxation, > 
and he shall have the powers and perform the duties relative thereto 
specified in section eleven of said chapter one hundred and fifty-six. 

G. L., c. 156, § 6, to which the formation of the corpora- 
tion is to be subject, provides that the agreement of asso- 
ciation shall state, among other matters, — 

(h) Any other lawful provisions for the conduct and regulation of the 
business of the corporation, for its voluntary dissolution, or for limiting, 
defining or regulating the powers of the corporation, or of its directors or 
stockholders, or of any class of stockholders. 



410 OPINIONS OF THE ATTORNEY-GENERAL. 

Under this statutory provision the incorporators have a 
right in their articles of organization to set forth provisions 
which define the powers of the corporation. This they have 
done in paragraphs two to five, as set forth in your com- 
munication. 

The duties and powers with relation to the articles of 
organization which are vested in the Commissioner of 
Corporations and Taxation by G. L., c. 156, § 11, and which 
by virtue of G. L., c. 175, § 49, the Commissioner of Insur- 
ance is to exercise with relation to the corporation now 
under consideration, are as follows : — 

The articles of organization, the agreement of association, and the 
record of the first meeting of the incorporators, including the by-laws, 
shall be submitted to the commissioner, who shall examine them and who 
may require such amendment thereof or such additional information as 
he deemed necessary. If he finds that the provisions of law relative to the 
organization of the corporation have been complied with, he shall endorse 
his approval on the articles. Thereupon, the articles shall, upon payment 
of the fee provided by section fifty-three, be filed in the office of the 
state secretary, who shall cause them and the endorsement thereon to be 
recorded. 

Since the incorporators may set forth in their articles of 
organization such definitions of the powers of the corpora- 
tion as they may deem best to provide for specifically, it 
becomes the duty of the Commissioner of Insurance, exer- 
cising similar powers to those given to the Commissioner 
of Corporations and Taxation in other instances, to examine 
the articles to determine whether such provisions by way 
of definition are lawful. 

2. I answer your second question in the affirmative with 
relation to the provisions as to the powers of the corporation. 
No purposes additional to those set forth in the first para- 
graph of the articles, as quoted in your letter, appear in the 
following paragraphs of the articles. I do not perceive any 
powers defined in such latter paragraphs which are either 
not incidental to or unconnected with the carrying out of the 
purposes of the corporation, which purposes are set forth 



ARTHUR K. READING, ATTORNEY-GENERAL. 411 

in the articles in the language of clause 11th of section 47 
of the statute. The powers set forth are so defined with 
relation to applicable statutory enactments that it cannot 
be said that the provisions of law relative to the organization 
of the corporation have not been complied with. 

3. I answer both inquiries contained in your third ques- 
tion, as written, in the affirmative. 

Section 49 is to be read in connection with section 47, 
and as complementary and not in opposition thereto. See 
VII Op. Atty. Gen. 532, 536. 

4. I answer your fourth question to the effect that, with 
relation to the specific case to which you have directed my 
attention, all the powers as they are defined in the particular 
articles of organization laid before me may be exercised by 
this corporation to which they pertain, when its formation 
has been duly completed. 



Insurance — Mutual Liability Insurance Company — 

Dividends. 

a mutual liability insurance company may agree to pay, and may disburse, to 
policyholders whose policies have expired a share in the profits, such as may 
be fairly allocated to them for the time during which their policies were in 
force. 

You have advised me to the effect that a domestic mutual l'^3l?°^' 
insurance company doing business under G. L., c. 175, ^°^''[92r' 
§ 47, cl. 6th, as amended, issuing "motor vehicle hability ^''''^^^''^ 
policies" solely, and subject to the provisions of G. L., c. 175, 
§ 80, as amended — 

proposes to issue to persons insured by it during the year 1927, a cer- 
tificate entitled "Participating Dividend Warrant" which reads: — 
"(Name of Company.) 

No. 

This is to certify that John Doe, a poUcyholder or member for the year 
1927, and continuously thereafter, of the Insurance 

Company, will be entitled upon surrender of this certificate (when called 
for surrender by the Board of Directors of such Company) to such divi- 



412 OPINIONS OF THE ATTORNEY-GENERAL. 

dend, if any, as may be declared by the Board of Directors but in no event 
to be in excess of 20% of the insurance premium paid by such policy- 
holder or member in the year 1927 — the same to be payable out of the 
profits or earnings of such Company declared on business written during 
such policy year. 

This certificate is transferable only at the home office of the Com- 
pany in such manner and at such times as shall be determined by the 
Board of Directors." 

The purpose of this certificate is to meet competition in that this com- 
pany has not declared a dividend to persons insured by it during 1927. 

You have asked my opinion upon the following questions 
relative to the foregoing facts : — 

1. May a mutual company lawfully issue a certificate in the form 
above set forth? 

2. Do the words "may by vote fix and determine the percentages of 
dividend ... to be paid on expiring policies," occurring in said section 
80, permit a company to declare and pay dividends on policies which 
have expired in contradistinction to policies which have not expired, at 
the time the declaration is made, or more specifically, may a company, 
v.g., lawfully declare and pay, in 1930, a dividend in respect to a policy 
which expired on December 31, 1927? 

1. I answer your first question in the affirmative. It has 
been the policy of this Commonwealth, as evidenced by a 
long line of enactments, to provide for the payment to 
holders of policies in mutual insurance companies of such 
share in the profits of those companies as might fairly be 
allocated to them for the time in which their policies were 
in force. It is made clear by the language of the statutes 
that they are not to be deprived of such benefits by the 
expiration of their policies. Doubtless, in the absence of 
such enactments, it might have been said that only such 
persons as continued to hold effective policies in a mutual 
company could be entitled to participate in its benefits or 
be Hable for any part of its losses. Zinn v. Germantown etc. 
Ins. Co., 132 Wis. 86. Liability to assessment for loss for 
a designated period after policy lapsing has been placed 
upon those insured in mutual companies by a series of stat- 
utes, now embodied in G. L., c. 175, § 83. 



ARTHUR K. READING, ATTORNEY-GENERAL. 413 

G. L., c. 175, § 80, provides that the directors may fix the 
percentages of dividends "from time to time.'' Even if it 
be assumed that the duty of the directors requires them to 
make such fixation during each calendar year, the fact that 
they have not done so in regard to any particular year 
does not deprive the policyholder of the right which is given 
by the statute to participate in any dividend which may be 
declared as of the year in which his policy expired. A 
declaration of a deferred dividend applicable to a pre- 
ceding year, deferred perhaps because impossible of ascer- 
tainment at an earlier date, or for any other reason, is not 
specifically forbidden by the statute, and I perceive nothing 
inherently illegal in it. 

The certificate or "warrant" to which you have called 
my attention does not appear to me to create any liability 
upon the insurance company which did not previously 
exist. It seems to be a mere declaration that the company 
will fulfill its obligation to the holder of a 1927 policy with 
relation to any portion of a dividend for such year, when 
and if the same be properly fixed and determined, which 
might rightly be allocated to him. 

I note that the certificate refers to the policyholder of 
1927 as one "continuously thereafter" a policyholder or 
member of the company. It is obvious that if a dividend 
for 1927 be declared at a later period, all persons whose 
policies expired in that year would be equally entitled to 
their proportion of the benefit thereof, irrespective of 
whether or not they continued to be members of the com- 
pany, by virtue of the provisions of said section 80. As the 
so-called warrant does not, as I have said, give rise to new 
obhgations on the part of the company as to policyholders 
of 1927, the delivery of the warrant, even with this par- 
ticular clause therein, to continuing members only does not 
give to the latter any special favor or advantage in the 
dividends or any other valuable consideration not open to 
non-continuing policyholders, and for that reason cannot 
be said to be in violation of G. L., c. 175, §§ 181-185. 



414 



OPINIONS OF THE ATTORNEY-GENERAL. 



2. I assume that the dividend which you refer to in your 
second question is one which might properly have been 
declared in 1927 if it had been possible at that time to make 
the necessary computations, and upon that assumption 
I ^answer your second question in the affirmative. 



Insurance — Fraternal Benefit 

Fund. 



Society — Death 



To the Com- 
missioner of 
Insurance. 

1928 
February 27. 



Money applicable only to death fund purposes may not lawfully be diverted to 
the payment of expenses. 

You have laid before me the following facts: — 

A certain fraternal society is licensed to transact business in this 
Commonwealth under the provisions of G. L., c. 176. 

During the year 1926, its board of directors allocated to the expense 
fund of the society the sum of $100,000 out of the interest and dividends 
paid to the society on all of the stocks and bonds owned by it. This sum 
was, therefore, apparently taken from the accretions of the death fund 
of the society. 

\The society contends that it has a right to use any portion of the accre- 
tions to its death fund in excess of three and one-half per cent, the rate 
of interest assumption on its reserve, because its by-laws so provide. 

You have asked my opinion upon the two following 
questions as they relate to the foregoing facts : — 

1. Did the transfer of the said fund of $100,000 constitute a violation 
ofG. L., c. 176, § 14. 

2. May a society lawfully provide in its by-laws that the accretions 
to its death fund in excess of the interest assumption on its reserve may 
be used for expenses? 

G. L., c. 176, § 14, with relation to a fraternal benefit 
society, provides : — 

Every provision of the by-laws of the society for payment by members 
of such society, in whatever form made, shall distinctly state the pur- 
poses 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. 



ARTHUR K. READING, ATTORNEY-GENERAL. 415 

The legislative intent as expressed in this section is plain. 
It is to the effect that none of the accretions which have in 
fact actually enured to the mortuary or disability funds 
shall be used for expenses. It is immaterial that the society 
by its by-laws may have estabhshed some other rule as to 
the accretions. It is immaterial that the society may 
have provided for using more than a designated percentage 
of the accretions for expenses. "Net accretions" to the 
fund, as those words are used in the instant statute, do not 
mean such sums as the society may itself determine to leave 
in its death fund from the profits thereof. It is immaterial 
whether the sums which the society has determined to leave 
in its death fund are, in the judgment of the society or in 
fact, sufficient to secure its actuarial solvency or to provide 
an adequate reserve. The Legislature has determined that 
all such sums must be left in the death fund. No other 
measure of the necessary size of the death fund can be 
substituted for that adopted by the Legislature, namely, 
the payments of the members plus the actual or net accre- 
tions. 

If it be of importance to consider the meaning of the 
words "net accretions" as distinguished from gross accre- 
tions, the same is made clear in that part of the opinion of 
the Supreme Judicial Court in Catholic Order of Foresters v. 
Commissioner of Insurance, 256 Mass. 502, wherein certain 
peculiar expenditures from the gross receipts of the death 
fund were held to be properly chargeable as against such 
fund itself, "as in effect a payment of death claims" rather 
than payable as expenses, within the ordinary use of that 
word, from the expense fund. In such case the difference 
between the total of accretions and the authorized payment 
would clearly be net accretions, within the meaning of the 
statute. 

The words "net accretions" do not mean that portion of 
the total accretions of the mortuary fund which the society 
has itself under a by-law permitted to be added to the fund. 
This society, by means of its by-laws, has attempted by a 



416 



OPINIONS OF THE ATTORNEY-GENERAL. 



colorable division of the money paid by the members for 
mortuary purposes into different funds to divert to the 
payment of expenses sums applicable only to death fund 
uses, in much the same manner as did the plaintiff in the 
case of Catholic Order of Foresters v. Commissioner of In- 
surance, supra, — a practice held there improper by the 
court. 

I answer your first question in the affirmative and your 
second in the negative. 



Constitutional Law — Contracts between Certain 
Employers and Employees. 

a proposed statute prohibiting the making of contracts for the purchase of stock, 
between employers and employees engaged in hand labor or machine operation, 
would not, if enacted, be constitutional. 



To the 
Senate Com- 
mittee on 
Labor and 
Industries. 

1928 
February 29. 



Your committee has asked my opinion as to the consti- 
tutionality of Senate Bill No. 131 and House Bill No. 673, 
if enacted into law. 

The purpose of both the proposed measures appears to 
be to prohibit the making of certain contracts between 
employers and employees, and between those who are about 
to enter into such relationship to each other. By their 
terms the proposed measures relate only to such employees 
as engage in hand labor or machine operation. 

It is not clear whether section 1 of this act is intended to 
require all contracts therein included to be in writing, or 
whether it merely intends to require copies of such con- 
tracts as may be in writing to be delivered to employee or 
prospective employee. This matter should be clarified 
by amendment. The answer to the first question herein- 
after set forth is based upon the assumption that the first 
section does not compel such contracts to be in writing, but 
intends to affect only such contracts as may be in writing. 

Such provisions of these bills, set forth in their first 
sections, respectively, as are intended to require the giving 



ARTHUE K. READING, ATTORNEY-GENERAL. 417 

of signed copies of written agreements which have been 
entered into with relation to terms of employment to the 
contracting employee, are, in my opinion, constitutional, 
as a valid exercise of the police power in a field wherein 
fraudulent practices may not unreasonably be determined 
by the Legislature to be likely of occurrence, even though 
the requirements are limited to a particular class of con- 
tracting parties. 

The provisions of the proposed measures, such as are 
embodied in the second sections thereof, respectively, 
declare null and void contracts of employment which in 
effect require purchase of the capital stock of the employer 
by the employee. The provisions obviously are intended 
to apply only to corporations, on the one hand, and are 
specifically limited by their terms to workers who perform 
hand labor or operate machines, on the other. The bills 
as drawn not only impliedly prohibit the requirement of 
purchase of stock as a prerequisite to the obtaining or 
retaining of employment, which might conceivably be 
regarded as such a coercive measure on the part of an 
employing corporation as to warrant legislative enactment 
to protect the workman, but go much farther and render 
void contracts made between those as to whom the relation 
of employer and employee actually exists, relative to per- 
formance of the designated forms of labor, if such con- 
tracts contain as a condition or consideration the purchase 
of stock by the employee. 

It is not a matter of common knowledge that the purchase 
of stock in corporations by their employees is contrary to 
the public welfare. The practice is not an uncommon one 
and it is not impossible that it may be of benefit to em- 
ployees. It is not plain that hand laborers and machine 
operators form a special group as to which such forms of 
contract may not be beneficial. To single out this particular 
class of workmen and to deny to them and their employers 
the right to make binding contracts of this character does 
not, on its face, appear to be a reasonable mode of classi- 



418 OPINIONS OF THE ATTORNEY-GENERAL. 

fication, but, rather, to be an arbitrary one. There is 
nothing in the phraseology of the bills which tends to show 
that the subject matter of the enactment bears a relation 
to any of the forms of public welfare for the protection of 
which contracts may be the subject of regulation by the 
police power inherent in the Legislature. 

Much the same considerations are applicable to the third 
sections of the proposed bills. It may well be that some 
provisions of employment contracts "restricting the liberty 
of action" of the designated classes of employees are void 
under our existing laws. It does not necessarily follow, 
however, that provisions restricting the liberty of former 
employees in all forms of action are necessarily so oppres- 
sive and subversive of the general good of the community 
as to permit an interference with the right of contract by 
the Legislature under the guise of the police power. It is 
not apparent that the conditions of employment with 
regard to the special class of employers who may desire 
the benefits of such contracts, namely, those hiring hand 
laborers or machine operators, is such as to make their 
classification as a particular group which may not make 
contracts permitted to others a reasonable rather than an 
arbitrary one. 

The character of the business to which this legislation 
relates appears to be a private one, not one necessarily 
charged with a public use. The Legislature, however, 
even in relation to business not charged with a pubhc use, 
may to some extent regulate contracts between employer 
and employee in order to protect the safety, health, morals 
or, in a limited sense, the general welfare of the public, but 
unless the public welfare is so adversely affected the Legis- 
lature has no authority, under the guise of the police power 
or otherwise, to prescribe the conditions or regulate the 
contracts under which labor shall be performed by men of 
full age. Opinion of the Justices, 163 Mass. 589; V Op. 
Atty. Gen. 484; Holcomhe v. Creamer, 231 Mass. 99; Opinio7i 
of the Justices, 220 Mass. 627; Commonwealth v. Boston & 



ARTHUR K. READING, ATTORNEY-GENERAL. 419 

Maine R.R., 222 Mass. 206; Bogni v. Perotti, 224 Mass. 
152, 157; Commonwealth v, Strauss, 191 Mass. 545, 550-1; 
and cases cited in the foregoing. 

For the foregoing considerations I am constrained to 
advise you that, in my opinion, the bills to which you have 
directed my attention would not, if enacted, be consti- 
tutional. 



Municipality — Fire Department — Fire Chief. 

A chief of a fire department of a town, who makes the duties of his office his voca- 
tion, is a permanent member of such department, within the meaning of 
G. L., c. 32, § 85; and the provisions of said section, once accepted by a town, 
apply after the town has become a city. 

You have asked my opinion upon two questions involved committee"on 
in your consideration of Senate Bill No. 237, entitled "An fhe Third 
Act relative to the retirement and pensioning of the chief T928^' 

March 1 

of the fire department of the city of Gardner." — 

Your questions are these : — 

(1) Is the chief of the fire department of a town which has accepted 
the provisions of G. L., c. 32, § 85, or corresponding provisions of earUer 
laws, who holds said office under civil service or other form of unlimited 
tenure or by election or appointment for a stated term, a "permanent 
member of the fire department," within the meaning of said section 85? 

(2) Do the provisions of said section 85, if accepted by a town, continue 
to apply to permanent members of its fire department after it has become 
a city? 

1. The words "permanent member of the fire department" 
or "permanent fireman," as used in our statutes for many 
years, have a somewhat technical meaning. They connote 
a man whose occupation is that of a fireman attached to 
some regularly constituted fire-fighting department, in 
contradistinction to a "call" fireman, who, though a member 
of such a department, renders his service to it only upon 
specific calls therefor, and who does not make fire fighting 
his vocation. As used in legislative enactments in this 
Commonwealth the word "permanent," as applied to a 



420 OPINIONS OF THE ATTORNEY-GENERAL. 

fireman, denotes nothing as to his tenure of office, with 
relation to its being unlimited or hmited, or to the manner 
in which he is chosen for such office. The application of 
the words "permanent" and ''call" to describe two different 
types of firemen, classified according to the mode in which 
they render service, is to be seen throughout G. L., c. 48, 
as amended, and a similar meaning is to be given to the 
words as used in G. L., c. 32, as amended, 

A chief of a fire department appointed under the pro- 
visions of G. L., c. 48, § 42, would appear to be intended by 
the Legislature to be a "permanent fireman," from the very 
nature of the duties which he is called upon to perform. In 
any given instance it would appear to be a question of fact 
as to whether a particular fireman was to be deemed a 
permanent or a call member of a department, the deter- 
mination of that fact depending solely upon a consideration 
of the character of the service which he was obliged to 
render and in no way upon the manner of his appointment 
or the term of his office. A chief of a fire department who 
was not required to perform the duties of such office merely 
upon specific "call" would be a permanent member of his 
department and affected by all pension laws pertaining to 
permanent members, irrespective of the fact that he was 
' subject "to appointment at stated intervals by the muni- 

cipal authorities," in the language of Senate Bill No. 237. 
See Moffatt v. Lowell, 215 Mass. 92. 

Accordingly, I answer your first question in the affirma- 
tive, assuming that a chief of a fire department, as a matter 
of fact, makes the duties of his office his vocation. See 
IV Op. Atty. Gen. 151; V ibid. 469. 

2. I answer your second question in the affirmative. 

The provisions of G. L., c. 32, § 85, relative to pensions 
for firemen in towns, are identical in purpose and intent 
with those of G. L., c. 32, § 80, which apphes to firemen 
in cities. Although the establishment by a city of a system 
of pensions for firemen is dependent upon its acceptance by 
vote of a city council, nevertheless, the same system, in 



ARTHUR K. READING, ATTORNEY-GENERAL. 421 

effect, has, under the terms of your question, already been 
accepted by the municipal body, which is now a city. To 
hold that mere change in the form of government nullifies 
the effect of the adoption of the system by the town would 
be to place a strained construction upon two sections of 
the same chapter which accomplish identical results. 
Minor details with reference to the carrying out of the 
system, which necessarily involve changes therein, such as 
the performance of the duties of the old town officials by the 
corresponding new city officers, do not render the old system 
in opposition to the powers, rights and duties of the city as 
such. The city succeeds the town, and it and its officials 
are to carry out the obligations of the old body in so far 
as these are not in opposition to the new city charter. See 
Codman v. Crocker, 203 Mass. 146, 149; Higginson v. 
Turner, 171 Mass. 586, 591; Hill v. Bosto7i, 122 Mass. 
344, 357. A change in the form of government of a com- 
munity does not ipso facto abrogate pre-existing law appli- 
cable thereto. An act of incorporation does not necessarily 
annul the rights and privileges of a town; it rather confers 
on the town a new name with additional powers. Common- 
wealth V. Worcester, 3 Pick. 462, 474. 

Moreover, it is expressly provided by our statutes 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 estab- 
lishing them and in the acts relating thereto. Except as otherwise ex- 
pressly provided, cities shall have all the powers of towns and such addi- 
tional 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. (G. L., c. 
40, § 1.) 

Except as otherwise provided by law, city councils shall have the 
powers of towns; boards of aldermen shall have the powers, perform the 
duties and be subject to the liabilities of selectmen, except with respect 
to appointments, and the mayor shall have the powers, perform the 
duties and be subject to the liabilities of selectmen with respect to appoint- 
ments, but all his appointments shall be subject to confirmation and 
rejection by the aldermen, and upon the rejection of a person so appointed 



422 OPINIONS OF THE ATTORNEY-GENERAL. 

the mayor shall within one month thereafter make another appointment. 
In cities having a single legislative board other than a board of aldermen, 
such board shall, so far as appropriate and not inconsistent with the 
express'provisions of any general or special law, have the powers, perform 
the duties and be subject to the liabilities of the board of aldermen. 
(G. L., c. 39, § 1.) 



March 1. 



Department of Conservation — Venue of Prosecution 
— Game Laws. 

A person who, after killing a pheasant, fails to make a report to the Department, 
as required by its rules and regulations, may be prosecuted in Suffolk County 
irrespective of the place of such killing. 

m°8sk)n^r°S" ^ovL have asked my opinion as to the local jurisdiction 

^Tgir'^*'"" ill which a person who has failed to make a report to your 
Department within twenty-four hours after killing a pheas- 
ant may be prosecuted. You have not submitted a copy 
of the rules and regulations which you advise me require 
such a report, but I assume, for the purposes of this opinion, 
that they are in proper form and have such effect by law 
that failure to comply with their terms in the respect 
indicated authorizes a criminal prosecution and the im- 
position of a penalty. 

The precise point which you raise relative to the venue 
of such a prosecution has not been passed upon by the 
Supreme Judicial Court of this Commonwealth, and its 
ultimate determination is one for judicial decision. I am of 
the opinion, however, that proper venue for prosecution of 
the offense which you have described is in the County of 
Suffolk, irrespective of the situs of the killing or the residence 
of its perpetrator. Crimes of omission are ordinarily 
regarded as committed at the place where the required act 
should have been performed, and the courts at such place 
have jurisdiction of the offender even if he has not been 
personally present at any time therein. The general prin- 
ciple has been stated by the Supreme Court of Indiana, in 
State V. Yocum, 182 Ind. 481, as follows: — 



ARTHUR K. READING, ATTORNEY-GENERAL. 423 

Personal presence is not an indispensable element in the locality of 
crime. A neglect to do an act is punishable in the county where the act 
should have been done. ... As a general rule, an offense which involves 
an act of commission is committed where the act is done, while an offense 
involving an act of omission is committed where the act should have been 
done. 

This principle has been applied to cases involving neglect 
to support or abandonment of a wife or children, the offense 
in such instances being treated as having been committed 
at the place where the dependents were when failure to 
support or to maintain existed as a fact, even though the 
husband or father was not in the same judicial jurisdiction 
as the dependents. State v. Dvoracek, 140 Iowa, 266; 
Cleveland v. State, 7 Ga. App. 622; State v. Yocum, supra; 
In re Price, 168 Mich. 527; People v. Quigley, 134 N. Y. S. 
953. It is also significant that the Supreme Judicial Court 
has sub silentio passed upon a similar situation in the case of 
Commonwealth v. Acker, 197 Mass. 91. 

So a failure by a railroad corporation, having its usual 
place of business in one county, to construct a station, as 
required by law, in another county has been held to give 
jurisdiction to the courts of the latter county, in which the 
prescribed act should have been performed. Louisiana etc. 
Ry. Co. V. State, 85 Ark. 12. 

So the venue of an indictment charging embezzlement for 
failure to account has been held properly laid in the county 
where the defendant's duty required him to account. 
People V. Davis, 269 111. 256. 

So the prosecution of a corporation for failure to place 
the word ''incorporated" after its name in an advertisement, 
in violation of a statute, was held properly to be in the 
county where the corporation had its place of business and 
not in the county where it pubhshed the advertisement in 
a local newspaper. Paracamph Co. v. Commonwealth, 
33 Ky. Law Rep. 981; Commonwealth v. Neho Cons. Coal 
& Coking Co., 141 Ky. 493. 

Under your regulations, as you have described them in 



424 



OPINIONS OF THE ATTORNEY-GENERAL. 



your letter, the killer of a pheasant was required to make a 
written report to the office of your Department in the State 
House at Boston. The failure to make the report at such 
place where it was due, within a certain time, constitutes 
such an omission as will give jurisdiction to the courts 
sitting in Suffolk County for the determination of criminal 
cases. The offense might be prosecuted by indictment in 
the Superior Court or by information in the Municipal 
Court of the City of Boston. 



Notaries Public — Justices of the Peace — Com- 
missions — Expirations. 

Commissions of notaries public and justices of the peace appointed on February 
29, 1928, for the term of seven years, expire on February 28, 1935. 



To the 
Secretary. 

1928 
March 7. 



You inquire whether commissions of notaries public and 
justices of the peace who were appointed on February 29, 
1928, for the term of seven years, would expire on February 
28 or March 1, 1935. It is my opinion that such commis- 
sions will expire on February 28, 1935. 



Metropolitan District Water Supply Commission — 
Power to acquire Real Property owned by a Town. 

The Commission, under St. 1927, c. 321, may acquire by purchase lands owned 
by a town, but it may not enter into an agreement for purchase of lands owned 
by a town under a plan for compensation by which the Commonwealth will 
become the debtor of the town for a period of unlimited duration. 



To the Met- 
ropolitan Dis- 
trict Water 
Supply Com- 
mission. 
1928 
March 13. 



You request my opinion on two questions relating to 
proposed action by your Commission in pursuance of its 
duties and powers as expressed in St. 1927, c. 321. Sections 
4 and 12 of said act, to which reference is hereby made, are 
not herein quoted because of their length. 

The first question upon which you request my opinion 
is whether or not the Commission, in behalf of the Com- 



ARTHUR K. READING, ATTORNEY-GENERAL. 425 

monwealth, may acquire certain land and buildings owned 
by the town of Dana in its corporate capacity. 

I assume from your request that the takings contemplated 
are reasonable and necessary for the successful and proper 
completion of the project authorized by St. 1927, c. 321. 
The language of section 4 is clearly broad and inclusive 
enough to authorize the purchase of lands or of any interest 
therein owned by the town of Dana in its corporate capacity. 
That the powers of the Commission extend thus far is also 
clearly shown by the fact that section 12 gives a specific 
remedy at law for a taking of such property. In view of 
the broad authorization of acquisition by purchase, con- 
tained in section 4, it cannot be said that the remedy by 
suit, contained in section 12, is the exclusive method by 
which compensation for the taking of such lands may be 
obtained. In my opinion, section 4 of the act authorizes the 
acquisition by purchase of the lands in question. Your 
attention is also called to the inclusive provisions of section 
7 of said act. 

The second question upon which my opinio^n is required 
is whether the Commission may enter into an agreement for 
the purchase of certain buildings in the town of Dana under 
a contract the terms of which are substantially those set 
forth in a memorandum accompanying your request. In 
substance, the memorandum of the contract proposes com- 
pensation for the taking of certain specified property of and 
in the town of Dana by — 

(a) an agreement of the Commonwealth to take over and 
assume the payment of certain notes made by the town of 
Dana; 

(6) an agreement that the Commonwealth shall permit 
the town to have the free use of the buildings taken, until 
the said buildings must actually be removed by the Com- 
mission for the execution of the Swift River project; and 

(c) the estabhshment by the Commonwealth of a credit 
balance in the State treasury in favor of the town of Dana, 
against which the town may draw, in certain specified 



426 OPINIONS OF THE ATTORNEY-GENERAL. 

amounts, and upon the unpaid amount of which balance 
the Commonwealth shall pay to the town, semi-annually, 
interest at the rate of five per cent per annum. 

The contract is not described with sufficient accuracy 
or in such detail in the memorandum attached to your 
request as to enable me to pass finally upon the validity of 
its provisions in detail. Upon broad, general principles I 
am, however, of the opinion that the agreements described 
in paragraphs (a) and (6), being in substance the equivalent 
of the present payment of compensation in money or the 
grant of privileges in diminution of damages, are valid and 
within the general authority of the Commission as set 
forth in St. 1927, c. 321, § 4, and by the express terms of 
section 7, which gives the Commission the broadest possible 
powers of settlement. Said section 7 provides as follows: — 

The commission may either before a taking or afterward make such 
settlements as it may deem for the best interests of the commonwealth 
with any person or corporation having a vahd claim under this act. 

Whether or not the provision for a credit balance in favor 
of the town of Dana, described above in paragraph (c), is a 
proper exercise of the power of purchase under the provi- 
sions of St. 1927, c. 321, §§4 and 7, is a more difficult ques- 
tion. If the portion of the contract establishing this credit 
balance provides merely for the postponement of the pay- 
ment of the principal sum to be paid by way of settlement, 
I am of the opinion that the provision is proper. The 
powers of the Commission with respect to purchases of land 
are at all places in St. 1927, c. 321, of the broadest possible 
scope, leaving to the Commission free play for the exercise 
of a sound discretion. I am of the opinion that the broad 
powers given to the Commission to make settlements include 
not only the power to settle a taking claim by the spot 
payment of the principal sum of damages, but also, with the 
assent of the landowner, to pay the principal sum of dam- 
ages at a future day or to make the payment of such prin- 



ARTHUR K. READING, ATTORNEY-GENERAL. 427 

cipal sum subject to such reasonable conditions as may be 
agreed upon by the parties to the settlement. 

On the other hand, if the provisions for the establishment 
of a credit balance in favor of the town of Dana are intended 
to constitute the Commission or the Treasurer and Receiver 
General either a trustee for the town or, in substance, a 
borrower from the town, I am of the opinion that such 
provisions are not reasonable conditions of a settlement 
contract under section 7, quoted above. The suggested 
provision for the payment of interest would indicate that 
the Commonwealth was planning formally to become the 
debtor of the town under a contract unlimited in duration. 
Such a provision, in my opinion, is beyond the powers of 
the Commission, since it is inconsistent with the general 
practice of settlement of land taking controversies, in force 
when the General Court enacted St. 1927, c. 321, in that it 
does not provide for payment for the taking by a form of 
compensation which is either a liquidated amount or the 
substantial equivalent of a liquidated sirni of money. 

In rendering this opinion, because of the fact that no 
specific contract is submitted to me in final form for approval, 
I express only my opinion as to the general powers of the 
Commission with respect to certain phases of contracts 
such as that described indefinitely in the memorandum 
accompanying the request for an opinion. 



Department of Mental Diseases — Support of In- 
mates OF State Hospitals — Statute of Limitations. 

St. 1926, c. 281, does not operate to remove the bar of the statute of limitations 
fixed by G. L., c. 260, § 2, with relation to causes of action to recover for the 
support of inmates of State hospitals which accrued at least six years before 
the effective date of said St. 1926, c. 281. 

You have asked my opinion as to whether the provisions m?3sion?r°^" 

of St. 1926, c. 281, amending G. L., c. 260, by adding to the 1211'° 

latter a clause which permits actions to recover for the mSn. 
support of inmates in State institutions to be brought within 



428 OPINIONS OF THE ATTORNEY-GENERAL. 

twenty years next after the cause of action accrues, are to 
be construed as retroactive. 

Prior to the enactment of said St. 1926, c. 281, such 
actions, hke other actions of contract, might be com- 
menced only within a period of six years from the time they 
accrued. G. L., c. 260, §§ 2 and 18. 

The construction of a legislative measure as retroactive, 
so as to remove the bar of a statute of limitations which has 
heretofore, by its force through the passage of time, vested 
persons with a legal defense, is not favored by the courts of 
the Commonwealth. Although there may be forms of 
remedies, lost by operation of a statute imposing limitations 
upon the time in which they may be instituted, that the 
Legislature may revive (Dunbar v. Boston & Providence 
R.R. Corpn., 181 Mass. 383, 386; Danforth v. Groton Water 
Co., 178 Mass. 472), yet in the absence of specific language 
in a statute, which in effect removes the bar of a statute of 
limitations, indicating a legislative intent that the measure 
should have a retroactive effect, such a statute is not to be 
interpreted so as to permit the bringing of actions upon 
causes which have already been barred by the passage of 
time, under the terms of an earlier enactment. Wright 
V. Oakley, 5 Met. 400; Bigeloiv v. Bemis, 2 Allen, 496; 
Kinsrnan v. Cambridge, 121 Mass. 558; Garfield v. Bemis, 
2 Allen, 445; Bucher v. Fitchburg R.R. Co., 131 Mass. 156. 

The language of St. 1926, c. 281, does not necessarily 
import that it is to act retroactively, and I advise you that 
it does not operate to remove the bar of the statute of limi- 
tations as fixed by G. L., c. 206, § 2, with relation to such 
causes of action as had accrued at least six years before the 
effective date of said St. 1926, c. 281. 



arthur k. reading, attorney-general. 429 

Motor Vehicles — Registration — Applications. 

The Registrar of Motor Vehicles may, in the exercise of a reasonable discretion, 
waive answers to certain questions on applications for registration of motor 
vehicles. 

You have requested my opinion as to the right of the cCmmissioner 
Registrar of Motor Vehicles to waive answers to certain w^ks^*" 
questions on appHcations for registration of motor vehicles. March 29. 

I am of the opinion that the Registrar may, in the exercise 
of a reasonable discretion, waive answers to any questions 
which may be contained on a printed form of application, 
such as you have annexed to your letter, provided that all 
the information which is specifically required by G. L., 
c. 90, § 2, to be contained in such an application is in fact 
set forth therein. 



Department of Conservation — Permit — Fishing. 

No official has power to authorize the taking of fish by the vise of torches. 

You have asked my opinion as to whether or not the TotheCom- 

*^ ^ missioner of 

Director of the Division of Fisheries and Game, or any conservation. 
other official of the Department of Conservation, has the ^Y^' 
right to exercise the rights conferred by St. 1913, c. 519, 
upon the Commissioners of Fisheries and Game. Said 
chapter 519 provides as follows: — 

Section 1. It shall be unlawful for any person to display torches or 
other light designed or used for the purpose of taking herring in so much 
of the waters of Boston harbor as lies within the Hniits of the city of 
Boston inside of a line drawn from Moon Island to Point Shirley: ino- 
vided, however, that the commissioners on fisheries and game may grant 
permits for the display of torches or other lights for the purpose afore- 
said, but only on the waters aforesaid, with such restrictions as in their 
judgment will prevent the same from constituting a nuisance; and said 
commissioners may at any time revoke any such permit. 

Section 2 provides a penalty for the violation of section 1. 
This chapter has never been repealed or amended. 



430 



OPINIONS OF THE ATTORNEY-GENERAL. 



Gen. St. 1919, c. 350, § 43, provided, in part, as follows: — 

The director of the division of fisheries and game shall exercise the 
functions of the board of commissioners on fisheries and game under 
chapter ninety-one of the Revised Laws and acts in amendment thereof 
and in addition thereto. 

This section, which stated that the Director of the Divi- 
sion of Fisheries and Game should exercise all the powers of 
the Commissioners on Fisheries and Game, was expressly 
repealed by G. L., c. 282. There is no re-enactment of said 
section 43 to be found in the General Laws or in the laws 
passed subsequent thereto, nor am I able to find any existing 
law which confers upon the Director or upon any other 
person the authority to issue the permits specified in said 
chapter 519. 

It follows that in the present state of the law it is con- 
trary to law to use a torch in the manner and place specified 
in said chapter 519, and that no person or department has 
power or authority to issue permits for this purpose. 



Constitutional Law — Restrictions — Release. 

A proposed statute to remove restrictions on land on Newbury Street, Boston, 
would be constitutional if it purported to release only rights of the Common- 
wealth therein. 



To the 
Senate Com- 
mittee on 
Ways and 
Means. 
1928 
April 10. 



You have asked my opinion as to the legality and pro- 
priety of legislation relative to removing certain restrictions 
on land on Newbury Street in Boston, as contained in 
Senate Bill No. 234. Said bill provides as follows : — 

For the purpose of enabling the city of Boston to widen Newbury 
street between ArUngton street and Massachusetts avenue in said city, 
the commonwealth hereby releases any lands situated on said street from 
the operation and effect of any restriction or stipulation imposed by it or 
for its benefit which would prevent said lands from being used for high- 
way, street and sidewalk purposes. 

In 1850 the Back Bay district, which includes that part 
of Newbury Street described in the bill, was owned by the 



ARTHUR K. READING, ATTORNEY-GENERAL. 431 

Commonwealth. The Commonwealth filled in the land, 
which consisted of tidal flats, laid out streets and lots, and 
sold the lots to various purchasers. These sales covered 
the period between 1857 and 1879. The deeds by which 
the lots on Newbury Street were conveyed contained, 
among others, a restriction to the effect that buildings 
thereon should be set back twenty-two feet from the street, 
and this is the restriction which the present bill seeks to 
release. 

The sale of the lots in the Back Bay district, including 
those on Newbury Street, together with the restrictions 
thereon, was in furtherance of a general scheme for the 
development of a desirable residential district, and, con- 
sequently, each purchaser of a lot acquired the right to 
compel the observance by all other purchasers of the re- 
strictions common to all the lots. This right, being appur- 
tenant to the land, passed to the heirs and assigns of the 
original purchasers. It is to be noted that the thirty-year 
limitation imposed by G. L., c. 184, § 23, upon the duration 
of such restrictions does not apply in this case, as the statute 
makes an exception if the restrictions were imposed prior 
to its passage or if they are imposed in a deed given by the 
Commonwealth. 

It should be clearly stated in the bill that the release of 
the restriction is subject to the rights, if there be any, of 
parties other than the Commonwealth. The Common- 
wealth cannot by its own act release the rights of other 
property owners in the Back Bay district (Allen v. Mass. 
Bonding & Ins. Co., 248 Mass. 378), and, as stated above, 
these owners unquestionably have the right to compel the 
observance of the restrictions. If the character of the 
neighborhood affected by the restrictions has so changed 
as to render the restrictions useless and of no avail, then, 
under the principle laid down in the case of Jackson v. 
Stevenson, 156 Mass. 496, the restrictions would cease to 
operate or to have any legal effect. The determination of 
this question is for the courts, in appropriate proceedings, 



432 OPINIONS OF THE ATTORNEY-GENERAL. 

and may not be determined by the Legislature. In the 
case of Allen v. Mass. Bonding & Ins. Co., supra, at page 
385, decided in 1924, the court said: — 

When the extent of the area included within the scheme of Back 
Bay development is considered, plainly the general character of the 
district has not been changed. 

It is further suggested that the bill clearly state that 
nothing therein contained shall be construed to operate as a 
release by the Commonwealth for any purpose other than 
that set forth in the bill. 

The result is that the bill would be constitutional if it 
purports to release only the rights of the Commonwealth, 
but if it purports to affect rights of other persons it is in- 
valid. As suggested above, the insertion of a clause to the 
effect that the release is subject to the rights, if there be 
any, of parties other than the Commonwealth, will render 
the bill valid. 



Insurance — Group Insurance — Massachusetts Agri- 
cultural College. 

Neither the Massachusetts Agricultural College nor its hoard of trustees is the 
employer of its professional staff, within the meaning of G. L., c. 175, § 133. 

To the Com- You have asked my opinion upon the following question : 

TumrTnce" jg the Massachusetts Agricultural College or its board of 
April 10- trustees the "employer" of the members of the professional 

staff of said college, within the purview of G. L., c. 175, 

§ 133? 
G. L., c. 175, § 133, as amended by St. 1921, c. 141, defines 

group life insurance, and reads as follows : — 

Group life insurance is hereby defined to be that form of life insurance 
covering not less than fifty employees, with or without medical exam- 
ination, written under a poUcy issued to the employer, the premium on 
which is to be paid by the employer or by the employer and employees 
jointly, and insuring only all of his employees, or all of any class or classes 
thereof determined by conditions pertaining to the employment, or by 



ARTHUR K. READING, ATTORNEY-GENERAL. 433 

duration of service in which case no employee shall be excluded if he 
has been for one year or more in the employ of the person taking out the 
policy, for amounts of insurance based upon some plan precluding indi- 
vidual selection, and for the benefit of persons other than the employer: 
provided, that when the premium is to be paid by the employer and 
employee jointly and the benefits of the policy are offered to all eligible 
employees, not less than seventy-five per cent of such employees may be 
so insured ; or not less than forty per cent if each employee belonging to 
the insured group has been medically examined and found acceptable for 
ordinary insurance by an individual policy. 

The Massachusetts Agricultural College was incorporated 
by St. 1863, c. 220. By Gen. St. 1918, c. 262, the corpora- 
tion was dissolved, and it was provided that the college 
should be maintained under the same name as a State 
institution. 

Section 5 of said chapter 262 provided : — 

All employees of the institution shall be considered state employees, 
but shall not be subject to the civil service laws and regulations. 

G. L., c. 15, § 19, provides that the trustees of the college 
shall serve in the Department of Education. 

G. L., c. 15, § 4, provided that the Commissioner of Educa- 
tion should be the executive and administrative head of said 
Department, but by an amendment of said section 4 (St. 
1926, c. 322) it was further provided that nothing in said 
chapter 15 shall be construed as affecting the powers and 
duties of the trustees of the college as set forth in G. L., c. 75. 

G. L., c. 75, § 13, provides, in part: — 

The trustees shall elect the president, necessary professors, tutors, 
instructors and other officers of the college and fix their salaries and 
define the duties and tenure of office. 

Similar provisions relative to salaries of various employees 
of the Commonwealth in other departments and institu- 
tions are to be found in the General Laws. 

In the codification of the General Laws said section 5 of 
Gen. St. 1918, c. 262, was not embodied in G. L., c. 75, as 
were some of the sections of the former statute. The 
salaries of the professional staff of said college are paid in 



434 OPINIONS OF THE ATTORNEY-GENERAL. 

full by appropriations made by the Legislature annually, 
except as to some of such staff who, I am advised, receive 
at least a part of their salaries from the Federal government. 
The salaries paid by the Commonwealth, though fixed by 
the trustees, are subject to rules and regulations of the 
Division of Personnel of the Department of Administration 
and Finance. St. 1923, c. 362, §§ 45, 48 and 52. Such of 
the staff as receive part of their pay from Federal sources 
have been said to be joint employees of the Commonwealth 
and the Federal government, and those whose salaries are 
paid solely by the Commonwealth to be employees of the 
latter. VI Op. Atty. Gen. 105. 

In view of the language of Gen. St. 1918, c. 262, § 5, it 
cannot well be said that the board of trustees of the college 
or the college occupies the position of employer as regards 
the professional staff of the college. No special powers 
have been given by the statutes to the trustees which would 
tend to indicate, even in the absence of said section 5, that 
they occupied any relation to persons serving under them 
which is not the relation held toward persons similarly 
placed by the heads of other divisions, boards and institu- 
tions of the Commonwealth. Such relation is not that of 
employer and employee. The Commonwealth holds that 
relation to all persons in its service, irrespective of which 
of its many divisions, boards or institutions exercises im- 
mediate control over them. 

The word "employer" as used in G. L., c. 175, § 133, with 
relation to group insurance has no peculiar significance 
which would make it possible to construe it as applicable 
to any department, division, board or institution created 
by the Commonwealth which is not in fact or law the 
employer of the persons who work under its immediate 
supervision. 

Accordingly, I answer your question in the negative. 



arthur k. reading, attorney-general. 435 

Constitutional Law — Mayors of Cities — Removal. 

A proposed statute authorizing the removal of mayors by a judicial determination 
would not be unconstitutional. 

You have asked my opinion as to the constitutionality Spu^^e^com- 
of House Bill No. 1183, entitled "An Act providing for the BmsTn°" 
removal of mayors of cities by the justices of the Supreme Reading. 
Judicial Court in certain cases," which provides as follows: — Aprujs. 

Section four of chapter two hundred and eleven of the General Laws 
is hereby amended by striking out, in the seventh Hne, the word "or" and 
inserting in place thereof a comma and by inserting after the word "at- 
torney" in the same line the words: — or mayor of a city, — so as to 
read as follows: — Section 4- A majority of the justices may, if in their 
judgment the public good so requires, remove from office a clerk of the 
courts or of their own court; and if sufficient cause is shown therefor 
and it appears that the public good so requires, may, upon a bill, petition 
or other process, upon a summary hearing or otherwise, remove a clerk 
of the superior court in Suffolk county, or of a district court, a county 
commissioner, sheriff, register of probate and insolvency, district attorney 
or mayor of a city. 

The cases of Attorney General v. Tufts, 239 Mass. 458, and 
Attorney General v. Pelletier, 240 Mass. 264, were brought 
under said section 4. It was there held that district attor- 
neys were not "officers of the Commonwealth," within the 
meaning of Mass. Const., pt. 2nd, c. I, § II, art. VIII. 

Mass. Const., pt. 2nd, c. I, § III, art. VI, provides as 
follows : — 

The house of representatives shall be the grand inquest of this com- 
monwealth; and all impeachments made by them shall be heard and 
tried by the senate. 

Chapter I, section II, article VIII, provides: — 

The senate shall be a court with full authority to hear and determine 
all impeachments made by the house of representatives, against any 
officer or officers of the commonwealth, for misconduct and maladminis- 
tration in their offices. 

If a mayor is an officer of the Commonwealth within the 
meaning of this section he may be removed by impeach- 



436 OPINIONS OF THE ATTORNEY-GENEEAL. 

ment only, and the Legislature may not provide for his 
removal in any other manner. In Attorney General v. 
Tufts, supra, at page 479, the court, quoting from Opinion 
of the Justices, 167 Mass. 599, said: — 

On the one hand, it seems to us that the various officers of cities or 
towns do not fall within the class of officers of the Commonwealth, in the 
sense in which these words are used in this provision of the Constitution. 
... It seems to us that the better construction of the constitutional 
provision is that the county commissioners are not subject to impeach- 
ment as officers of the Commonwealth. 

There seems to be no reason to doubt that the court 
would apply any other law to the office of mayor of a city. 
It follows, in my opinion, that a mayor is not an officer of the 
Commonwealth, within the meaning of the constitutional 
provision, and that there is no objection to the bill under 
the section of the Constitution set forth above. 

There is no conflict with article XXX of the Declaration 
of Rights. The jurisdiction given to the court is purely 
judicial in character and establishes a procedure consti- 
tutionally appropriate for judicial determination. 

Other constitutional objections to this law, in so far as 
district-attorneys are concerned, were considered and dis- 
posed of in the decisions in the two cases above cited, and 
I am of the opinion that the principles of law there laid 
down are applicable to the office of mayor as well as to the 
office of district-attorney. 



arthur k. reading, attorney-general. 437 

Registrar of Motor Vehicles — Revocation of License 
— Judicial Recommendation. 

A recommendation that the license of an operator of a motor vehicle be not sus- 
pended by the Registrar, if communicated to him by a court before actual 
revocation, though after transmission of a report of a conviction, may be 
acted upon by the Registrar; but if received by him after the license has been 
in fact revoked, it is without effect in connection with such revocation. 

You have asked my opinion concerning the correct inter- ^•'gsionJr''^" 
pretation of a portion of G. L., c. 90, § 24, as amended, as Pg>h\; works. 
it relates to the two following questions : — 



May 4. 



1. Can a recommendation of the court referred to above be accepted 
after the receipt of the court record in the case referred to? 

2. Can such a recommendation of the court be accepted after the 
Registrar has revoked the hcense of the party referred to in the recom- 
mendation? 

G. L., c. 90, § 24, as amended, defines certain offenses in 
connection with the operation of motor vehicles, and es- 
tablishes penalties therefor. It then sets forth the follow- 
ing provision, as to which in your letter you direct my 
attention : — 

A conviction of a violation of this section shall be reported forthwith 
by the court or magistrate to the registrar, who may in any event and 
shall, unless the court or magistrate recommends othei-wise, revoke 
immediately the license of the person so convicted, and no appeal from 
the judgment shall operate to stay the revocation of the license. 

It is obvious from the language of the statute that it is 
mandatory upon the Registrar to revoke the license of a 
person convicted under the statute immediately upon 
receipt of the designated report of conviction. It is con- 
ceivable that between the time of the Registrar's receipt of 
such report and his revocation of the license the statutory 
recommendation might be received by him. There is no 
specific requirement of the statute that the report and the 
recommendation shall be transmitted as one document or 
even simultaneously. In the event of such an unusual 
occurrence as the receipt of the recommendation after the 
transmission of the report but before the actual revocation, 



438 



OPINIONS OF THE ATTORNEY-GENERAL. 



the Registrar could not well refuse to accept the recommen- 
dation, and might act in accordance therewith. 

There is no specific provision of the statutes relative to 
the duties of the Registrar in relation to the acceptance of a 
recommendation. It is immaterial whether he does or does 
not physically accept the recommendation. If a recom- 
mendation reaches the Registrar after he has performed 
the duty of immediately revoking a license upon notice of 
conviction, he has completed the act required of him, the 
license stands revoked and the subsequently received recom- 
mendation is without effect, as the contemplated act has 
already been accomplished. 

The Registrar, however, has power under the same sec- 
tion, in his discretion, in accordance with certain statutory 
regulations, to issue new licenses to persons who have been 
convicted, and it may well be that a recommendation of a 
court or magistrate which purported to be made under 
the statutory provision referred to in your letter, although 
received too late to be considered in relation to the revoca- 
tion of the license, would aid the Registrar in making a 
decision as to the propriety of issuing a new license. 

The foregoing statements of my opinion as to the law 
answer both your questions fully. 



Taxation — Corporations — Change in Federal Net 
Income — Interest on Abatement of Tax with 
Respect to Such Change. 

After the effective date of St. 1927, c. 148, a corporation receiving an abatement 
of an excise assessed under G. L., c. 63, § 32, as amended, is entitled to interest 
upon the amount of tax refunded, where the refund is based upon a reduction 
in Federal net income. 



To the 

Commissioner 
of Corpora- 
tions and 
Taxation. 

1928 
May 5. 



You request my opinion as to your duty upon the following 
facts: Prior to the date upon which St. 1927, c. 148, became 
effective, a domestic business corporation seasonably re- 
ported, in comphance with G. L., c. 63, § 36, a reduction 



ARTHUR K. READING, ATTORNEY-GENERAL. 439 

in its net income for a previous calendar year, as determined 
by the Federal taxing authorities. Subsequently, after 
the date upon which St. 1927, c. 148, became effective, you 
certified to the Treasurer and Receiver General that the 
corporation had overpaid its excise tax for the year follow- 
ing the calendar year above mentioned by an amount equal 
to the tax due upon the difference between the amount of 
net income originally returned by the corporation to the 
Federal government for the calendar year in question and 
the amount of net income upon which the Federal govern- 
ment finally assessed a tax for that year. You did not, 
however, certify to the Treasurer and Receiver General 
that the corporation was entitled to a repayment of the 
amount of the tax thus overpaid, with interest from the date 
of payment to the date of repayment of the tax overpaid. 
If the provisions of St. 1927, c. 148, apply to this repayment, 
then the corporation is entitled to a repayment of the over- 
paid tax with interest for the period above mentioned. 

G. L., c. 63, § 36, prior to the effective date of St. 1927, 
c. 148, read as follows: — 

If the assessment made by the federal government is based upon a 
net income greater or less than the net income returned by said corpora- 
tion, or if an additional assessment is at any time made on the ground 
that the net income was incorrectly returned in the first instance, or if, 
after the tax as assessed is paid to the federal government, any part of 
such tax is refunded, the corporation, within ten days after the receipt of 
such notice of said fact, shall make return on oath to the commissioner of 
the amount by which the net income originally returned differs from the 
net income on which the tax was computed by the federal government 
upon the latest determination by it of the proper tax, and of the facts 
giving rise to the difference. If upon such facts an additional tax is due 
the commonwealth, the commissioner shall assess the additional tax, and 
the corporation shall, within thirty days after receipt of notice from the 
commissioner of the amount thereof, pay such additional tax. If upon 
said facts a less tax is due the commonwealth than that paid by the cor- 
poration, the state treasurer shall, upon certification of the commissioner, 
repay within thirty days such difference without any further statutory 
appropriation therefor. 



440 OPINIONS OF THE ATTORNEY-GENERAL. 

St. 1927, c. 148, reads: — 

Chapter sixty-three of the General Laws is hereby amended by strik- 
ing out section thirty-six and inserting in place thereof the following: — 
Section 36. If the assessment made by the federal government is based 
upon a net income greater or less than the net income returned by said 
corporation, or if an additional assessment is at any time made on the 
ground that the net income was incorrectly returned in the first instance, 
or if, after the tax as assessed is paid to the federal government, any part 
of such tax is refunded, the corporation, within seventy days after the 
receipt of notice of said fact, shall make return on oath to the commis- 
sioner of the amount by which the net income originally returned differs 
from the net income on which the tax was computed by the federal gov- 
ernment upon the latest determination by it of the proper tax, and of 
the facts giving rise to the difference; provided that in case the corpora- 
tion appeals from a decision of the commissioner of internal revenue or 
from a decision of the United States board of tax appeals, the return 
required by this section shall be made within thirty days after notice of 
the final determination on such appeal. If upon such facts an additional 
tax is due the commonwealth, the commissioner shall assess the addi- 
tional tax, and the corporation shall, within thirty days after receipt of 
notice from the commissioner of the amount thereof, pay such additional 
tax with interest at six per cent from October twentieth of the year in 
which the original return of the corporation was due to be filed. If upon 
said facts a less tax is due the commonwealth than that paid by the 
corporation, the state treasurer shall, upon certification of the commis- 
sioner, repay within thirty days such difference with interest at the rate 
of six per cent from the date of the overpayment without any further 
statutory appropriation therefor. The provisions of this section shall 
not be construed to authorize the commissioner to make any assessment, 
the time for making which has by law expired, except assessment, with 
interest as aforesaid, of such amount of additional tax as is incident to 
the increase in federal net income, nor to authorize refund in excess of 
the amount of tax paid with respect to the difference in net income deter- 
mined by the federal reduction, with interest as aforesaid. 

The statute (St. 1927, c. 148) does not clearly indicate 
whether it was intended to apply to proceedings pending at 
the time of its effective date or merely to those Federal 
tax refunds reported to the Commissioner after the date 
when the amendment became operative. Some indica- 
tions there are in the statute itself that the amendment was 
intended to apply to all overpayments certified and all 



ARTHUR K. READING, ATTORNEY-GENERAL. 441 

assessments made (where the Federal net income taxed 
was increased by the Federal taxing authorities) after the 
date when the statute became effective. Both from the 
sentence dealing with additional assessments and from the 
sentence dealing with refunds of overpayments it must be 
deduced that the obligation to pay interest, imposed upon 
the taxpayer and upon the Treasurer and Receiver General, 
respectively, arises upon the date of assessment or the date 
of certification of the overpayment by the Commissioner 
rather than at the earlier date upon which the Federal 
change is reported to the Commissioner. If this be so, then, 
unless the imposition of a duty to pay interest changes 
some substantive right of the taxpayer, the amendment 
would apply to all cases where the date of assessment or 
the date of certification followed the effective date of St. 
1927, c. 148. 

It is familiar law that statutes relating to remedy and 
procedure apply to pending cases equally with those arising 
after their enactment. Hollingsworth & Vose Co. v. Re- 
corder of the Land Court, 262 Mass. 45, and cases cited. 
See Bogigian v. Commissioner of Corporations and Taxation, 
248 Mass. 545, 548. Where, however, a statute regulates 
the substantive rights of the parties, a retroactive con- 
struction of that statute is avoided by the courts; and the 
statute will not be held applicable to cases pending. Para- 
hoschi V. Shaw, 258 Mass. 531, 533, and cases cited, especially 
Hanscom v. Maiden & Melrose Gas Light Co., 220 Mass. 1, 
3-5, where the authorities are reviewed at length. 

The determination of the question involved in this case 
depends on an analysis of the nature of a provision for the 
payment of interest in a statute otherwise solely remedial. 
Does such a provision change the substantive rights of the 
parties or is it merely remedial in its nature . 

In Tremont & Suffolk Mills v. Lowell, 165 Mass. 265, 
the statute there construed provided that "in every judg- 
ment which shall hereafter be rendered for the amount of 
an abatement of taxes" under St. 1890, c. 127, "there shall 



442 OPINIONS OF THE ATTORNEY-GENERAL. 

be included all charges and also interest on the amount 
of the abatement made from the date of payment of the 
tax." It was held that the statute, because of its precise 
language, applied to judgments rendered after the effective 
date of the statute. The court does not decide whether a 
provision for interest is purely remedial or whether it affects 
substantive rights, for the opinion closes with the following 
words (at pp. 266-267) : — 

As the only parties against whom such judgments can be rendered 
are municipal corporations, no question of vested rights arises, and no 
contention is made by the respondent that it was not within the power 
of the Legislature to enact that interest should be allowed in pending 
cases. 

The decision thus plainly is not conclusive of the present 
discussion, and no case closer to the situation presented for 
consideration has been found in the Massachusetts reports. 
Resort, therefore, must be had to general principles. It 
has been stated that "the general rule at law is that interest 
is allowed upon the ground of contract either expressed or 
implied for its payment, or by way of damages where money 
is detained, or for breach in the performance of a contract 
where some duty has been violated." (Mr. Justice Braley 
in Goldman v. Worcester, 236 Mass. 319, 320, 321.) In- 
terest, if payable by the Treasurer and Receiver General 
upon the facts now under consideration, is payable because 
of the statutory provision which imposes an obligation to 
pay interest "by way of damages where money" due for 
taxes has been wrongfully detained. There is, of course, 
no contractual basis to the interest obligation, if any such 
obHgation there be. The obhgation, therefore, is in a real 
sense distinct from the primary tax liability of the taxpayer 
or the obligation of the State to repay excessive taxes. It 
is in the nature of compensation for the delay in withholding 
money the use of which the Commonwealth should have 
had for a period of years, in the case of an underpayment 
by the taxpayer; and in the case of an overpayment of 
taxes, the interest, if allowed, is to compensate the taxpayer 



ARTHXJR K. READING, ATTORNEY-GENERAL. 443 

for the wrongful detention of his money by the Common- 
wealth. The overcollection of the tax is one wrong; the 
withholding of the money is a separate and distinct wrong. 
The gravamen of the taxpayer's complaint is the over- 
assessment of the tax, with its subsequent collection; the 
injury done to him by depriving him of the use of his money 
is but an incidental consequence of the over-collection. 
Similarly, interest upon taxes unpaid by the taxpayer is 
based upon a liabihty separate from the original liability 
to pay taxes, and it has been held permissible, under the 
Federal Constitution, for a State to provide that taxes 
which have already become delinquent shall bear interest 
from the time the delinquency began. League v. Texas, 
184 U. S. 156, 161. 

The language of that case indicates that interest, although 
not precisely on the same basis as court costs as an incident 
to the remedy provided for the collection of overdue taxes, 
is in its nature remedial rather than a part of the substantive 
tax obligation itself. This view is alike consistent with the 
language and general nature of St. 1927, c. 148, and with 
the result in the decision in Tremont & Suffolk Mills v. 
Lowell, supra. I am of the opinion, therefore, that the 
provision in St. 1927, c. 148, for the payment of interest 
is purely remedial, as are the other provisions of the section, 
and that the section applies to all abatements and repay- 
ments certified to the Treasurer and Receiver General after 
the date when the section, as amended, became effective. 

One further consideration leads me to this conclusion. 
By St. 1927, c. 148, G. L., c. 63, § 36, as it then stood, was 
stricken out and a new section inserted in its place. After 
the effective date of St. 1927, c. 148, the Commissioner was 
authorized to certify that tax repayments were due only in 
accordance with the provisions of the section as thus 
amended, calling for the repayment of excessive taxes, with 
interest. In a similar situation, the Federal courts have held 
that interest is computed to the date of the authorization 
of the tax refund, that, even as to pending petitions for 



444 OPINIONS OF THE ATTORNEY-GENERAL. 

refund, the statute in force at the date of the authorization 
of the refund controls the allowance of interest, and that 
only under that statute are the officials of the Government 
authorized to act. Blair v. Birkenstock, 271 U. S. 348, 
350-1, affirming S. C. 6 Fed. (2d) 679 (Ct. of Ap. D. C). 

I advise you, therefore, that you should certify to the 
Treasurer and Receiver General that interest is due, from 
the date of overpayment to the date of refund of the over- 
payment, upon the amount of the refund in the case which 
you stated to me in asking my opinion. 



Inspector of Animals — Appointment — Continuance 
IN Office until Appointment of Successor. 

An inspector of animals, appointed under G. L., c. 129, §§15 and 16, holds over, 
after the expiration of his term, imtil his successor is appointed. 

S'sskTnfr"™' ^^^ have asked my opinion as to whether or not a duly 

S°92"''^**°°' appointed inspector of animals, who was not reappointed 
^JZJ' in March as required under G. L., c. 129, § 15, holds over 

until a successor has been appointed. Said section 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. 

Section 16 of said chapter 129 provides as follows: — 

A town shall, for each refusal or neglect of its officers to comply with 
the requirements of the preceding section, forfeit not more than five hun- 
dred dollars. The director may appoint one or more inspectors for such 
town, and may remove an inspector who refuses or neglects to be sworn 
or who, in the opinion of the director, does not properly perform the 
duties of his office and may appoint another inspector for the residue of 
his term. 



ARTHUR K. READING, ATTORNEY-GENERAL. 445 

Section 15 places an afRrmative duty upon mayors and 
selectmen to nominate inspectors, and provides that the 
nominee shall not be appointed until approved by the Di- 
rector of Animal Industry. If an inspector is duly ap- 
pointed, it is my opinion that, for the purposes of carrying 
out the duties assigned by law to him, he holds office until 
his successor is appointed. It could not be the intent of 
the Legislature that the important duties assigned to this 
officer should not be carried out if it should happen that 
no new appointment was made. It is true that section 16 
gives to the Director the power to appoint one or more 
inspectors for such city or town as fails to comply with 
section 15, but unless and until this is done, it is my opinion 
that the old officer can legally perform the functions of the 
office. 

It may well be that such officer who holds over is not 
entitled to compensation, but, for the purposes of performing 
the duties of his office, his powers are of the same dignity as 
if he had been duly nominated and appointed. 

This question is not free from doubt, but all uncertainty 
would be removed if the statute provided that the inspector 
should hold office until a successor was duly appointed. 



Taxation — Foreign Banking Associations and Cor- 
porations — Constitutional Law — Foreign Banks 
AS Fiduciaries. 

No provision of the existing statute law of this Commonwealth imposes an excise 
upon foreign banking corporations or associations doing business within this 
Commonwealth as fiduciaries, as authorized by St. 1928, c. 128, with respect 
to the doing of such business. 

You request my opinion as to whether you have the power, commission r 

under the provisions of St. 1928, c. 128, and the provisions tfoMln°d*" 

of G. L., c. 63, § 2, as amended by St. 1925, c. 343, § 1, to '^lif'^- 

impose an excise tax upon such foreign banking associations ^*^^- 
and corporations as obtain a certificate under the provisions 
of St. 1928, c. 128, with respect to the activities of such 



446 OPINIONS OF THE ATTORNEY-GENERAL. 

associations and corporations under the authority of such a 
certificate. 
St. 1928, c. 128, § 1, reads, in part, as follows: — 

Chapter one hundred and sixty-seven of the General Laws is hereby 
amended by inserting after section forty-five the following new section: — 
Section 45 A. The board of bank incorporation may, subject to such con- 
ditions as the commissioner may prescribe, grant to a banking association 
or corporation whose principal office is in another state, a certificate 
authorizing it to act in a fiduciary capacity under the provisions, so far as 
applicable, of sections fifty-two to fifty-nine, inclusive, of chapter one 
hundred and seventy-two; . . . Any such banking association or cor- 
poration holding a certificate as aforesaid and appointed a fiduciary shall 
be subject to the provisions of general law with respect to the appointment 
of agents by foreign fiduciaries and to the same taxes, obligations and 
penalties, with respect to its activities as such fiduciary and the activities 
of itself and the property held by it in its fiduciary capacity, as like asso- 
ciations or corporations having their principal office in this commonwealth, 
and no such certificate shall be issued to any such banking association or 
corporation until it has filed with the said board of bank incorporation 
an agreement in writing in which it binds itself to perform said obliga- 
tions and pay any such taxes and penalties as aforesaid as may be levied 
or imposed upon it in this commonwealth. 

G. L., c. 63, § 2, as amended by St. 1925, c. 343, § 1, reads 
as follows : — 

Every bank shall pay annually a tax measured by its net income, 
as defined in section one, at the rate assessed upon other financial cor- 
porations; provided, that such rate shall not be higher than the highest 
of the rates assessed under this chapter upon mercantile, manufacturing 
and business corporations doing business in the commonwealth. The 
commissioner shall determine the rate on or before July first of each 
year after giving a hearing thereon and shall seasonably notify the banks 
of his determination. Appeal by a bank from the determination of the 
commissioner may be taken to the board of appeal from decisions of the 
commissioner of corporations and taxation, in sections five and six called 
the board of appeal, within ten days after the giving of such notice. 

The provisions of this section refer back to the definitions 
of "bank" and "net income" as contained in G. L., c. 63, 
§ 1, as amended by St. 1925, c. 343, § 1, which section reads, 
in part, as follows : — 



ARTHUR K. READING, ATTORNEY-GENERAL. 447 

"Bank," Any bank, banking association or trust company doing busi- 
ness within the commonwealth, whether of issue or not, existing by au- 
thority of the United States or of a foreign country, or of any law of the 
commonwealth not contained in chapters one hundred and sixty-eight to 
one hundred and seventy-one, inclusive, and chapters one hundred and 
seventy-three and one hundred and seventy-four. 

"Net income," The net income for the taxable year as required to be 
returned by the bank to the federal government under the federal revenue 
act applicable for the period, adding thereto any net losses, as defined 
in said federal revenue act, that have been deducted and all interest and 
dividends not so required to be returned as net income except dividends 
on shares of stock of corporations organized under the laws of the com- 
monwealth and dividends in liquidation paid from capital. 

It is obvious that G. L., c. 63, § 2, as thus amended, does 
not afford any authority to tax a "banking association or 
corporation whose principal office is in another state," 
apart from the language of St. 1928, c. 128, § 1, subjecting 
such banking corporation "to the same taxes . . . with re- 
spect to . . . the activities of itself ... as like associations 
. . . having their principal office in this commonwealth." 
"Bank" is defined in G. L., c. 63, § 1, as thus amended, in 
such a way as to exclude trust companies organized under 
the laws of other States, and the tax in G. L., c. 63, § 2, 
as thus amended, is limited to a tax on "banks" as thus 
defined in section 1. Furthermore, even if these corpora- 
tions holding certificates be held to be included witliin the 
provisions of the tax imposed by section 2, the only tax 
imposed by that section is an excise with respect to the 
whole "net income" of the bank, as defined in section 1 of 
the chapter. Clearly, such a tax, measured by net income 
wherever earned, upon foreign trust companies doing only 
an incidental portion of their whole business within the 
Commonwealth would be unconstitutional. See Southern 
Ry. Co. V. Kentucky, 274 U. S. 76; c/. Bass, Ratdiff & 
Gretton, Ltd. v. State Tax Commission, 266 U. S. 271. 

The Legislature cannot be presumed to have intended to 
enact an obviously unconstitutional tax statute, and the 
purposes of the General Court must be gathered in part from 



448 OPINIONS OF THE ATTORNEY-GENERAL. 

the powers possessed by it. Eaton, Crane & Pike Co. v. 
Commonwealth, 237 Mass. 523, 527. No provision of G. L., 
c. 63, authorizes the Commissioner of Corporations and 
Taxation to allocate the net income of any bank taxed 
under section 2 of the chapter in such a way as to determine 
the proportion of the net income attributable to corporate 
activities within Massachusetts and to assess a tax only with 
respect to such allocated net income — an excise which 
would probably avoid constitutional pitfalls. In the 
absence of statutory provision for such allocation, you, as 
Commissioner of Corporations and Taxation, cannot assess 
a vaUd excise with respect to the income earned in Massa- 
chusetts of foreign trust companies holding a certificate 
under St. 1928, c. 128. It is well settled that tax laws are 
to be construed strictly, and that the power to tax must 
be conferred in unequivocal terms and cannot be extended 
by implication. Union St. Ry Co. v. New Bedford, 253 
Mass. 314, 317; Moulton v. Commissioner of Corporations 
and Taxation, 243 Mass. 129, 130. 

The language of St. 1928, c. 128, § 1, in and of itself 
imposes no tax and merely subjects foreign banks acting 
under a certificate granted under the chapter to the taxes 
imposed upon similar banks having their principal office in 
Massachusetts, with respect to their activities. The state 
of the law at the time of the passage of St. 1928, c. 128, was 
such that there was no tax imposed on those banks acting 
as fiduciaries and having their principal office in Massachu- 
setts which could constitutionally be imposed upon foreign 
companies acting under a certificate under St. 1928, c. 128, 
and I can see no warrant in law, as the statutes are now 
framed, for the imposition of an excise upon such foreign 
companies. 

It may be suggested that the language of St. 1928, c. 128, 
in no event contemplated the imposition of any excise or 
tax upon banks operating under certificates granted pur- 
suant to that act with respect to the activities of those 
banks or measured by the profits made by those banks from 



ARTHUR K. READING, ATTORNEY-GENERAL. 449 

their Massachusetts business. The distinction made in 
St. 1928, c. 128, § 1, between the "activities as such fidu- 
ciary" and the "activities of itself" would indicate a legis- 
lative intent to subject these banks not only to the taxes 
payable by the bank as a fiduciary on behalf of the bene- 
ficiaries of their trusts or upon property held by them as 
trustees, but also to the payment of taxes on their own 
behalf for such privileges as they might exercise within 
Massachusetts. It is a general canon of statutory con- 
struction not to regard any word found in a statute as super- 
fluous or redundant, but to give each word some meaning. 
Kennedy v. Commissioner of Corporations and Taxation, 256 
Mass. 426, 429. 



Notary Public — Appointment — Age. 

The appointment of a notary public who is a minor is not necessarily invalid. 



To the 
overnor. 
1928 



Your Excellency has asked whether an appointment ^ 
previously made, by a former Governor, of a woman twenty mS^h. 
years of age as a notary public was valid, and as to whether 
the official acts of such appointee are themselves valid. 

Neither the Constitution nor the statutes of the Com- 
monwealth contain any provisions as to the age which a man 
or woman must have attained in order to be eligible to 
appointment as a notary public. 

The origin, history and duties of the office of notary 
public are considered at length in Opinion of the Justices, 150 
Mass. 586. The duties of such office have not substantially 
changed in character since the date of such opinion. The 
office still remains, as pointed out by the justices, not judi- 
cial in character. Since said opinion was rendered, by 
virtue of Mass. Const. Amend. LVII women have been made 
eligible to appointment as notaries public. 

It is a general principle of the common law that minors, 
though not eligible to offices which are judicial in character, 
may be eligible to offices which are ministerial, requiring 



450 OPINIONS OF THE ATTORNEY-GENERAL. 

skill and diligence in their administration rather than ex- 
perience or the exercise of grave discretion. Golding's 
Petition, 57 N. H. 146; Moore v. Graves, 3 N. H. 408; State 
V. Dillon, 1 Head (Tenn.), 389. The office of notary public 
is of the latter type. It has been held that a minor may be 
validly appointed to the office. United States v. Bixhy, 
9 Fed. 78. 

Accordingly, I advise you that the appointment of the 
notary pubhc concerning whom you inquire in your letter 
was not invalid because of her age at the date of appoint- 
ment, and that her acts done by virtue of such appointment 
are not invalidated by reason of the fact that she was less 
than twenty-one years old at the time of her appointment. 



Municipal Employee — Blasting — Permit — Bond. 

An employee of a municipality, engaged in the work of blasting carried on by such 
municipality, is not required to have a permit or to furnish a bond. 

To the You have asked my opinion as to whether an emplovee 

Commissioner ^ j. j. •• 

slfety^*" of a city or town can be required to give a bond, under 

Miy^iQ. ^' L., c. 148, § 24, before receiving a permit under said 

section to do blasting for the city or town which employs 
him, and you have set forth certain facts relative to experi- 
ence in the past in connection with a blasting operation. 
G. L., c. 148, § 24, is as follows: — 

Before the issue of a permit to use an explosive in the blasting of 
rock or any other substance as prescribed by the department, the appli- 
cant for the permit shall file with the clerk of the city or town where the 
blasting is to be done a bond running to the city or town, with sureties 
approved by the treasurer thereof, for such penal sum, not exceeding ten 
thousand dollars, as the marshal or the officer granting the permit shall 
determine to be necessary in order to cover the risk of damage that might 
ensue from the blasting; provided, that the marshal or the officer granting 
the permit may determine that a single and blanket bond in a penal sum 
not exceeding fifteen thousand dollars is sufficient to cover the risk of 
damage from all blasting operations of the applicant, either under the 
permit so issued or under future permits to use explosives in blasting 



ARTHUR K. READING, ATTORNEY-GENERAL. 451 

operations. The bond shall be conditioned upon the payment of any 
loss, damage or injury resulting to persons or property by reason of the 
use of keeping of said explosive. 

It is the apparent intention of the Legislature, as expressed 
in the language of said section 24, that under rules and 
regulations made by your department, under G. L., c. 148, 
§ 10, a permit should be required as a prerequisite to blast- 
ing. It is obvious, however, that if a municipality is itself, 
through its own agents, as distinguished from pubUc officers 
elected or appointed by the city or town to perform statu- 
tory duties with relation to the ways, about to perform the 
work of blasting, the provisions of said section 24 are not 
apphcable to such municipality. The provisions of said 
section 24 do not apply to a municipality; for a munici- 
pality, like an individual, cannot be both the obligor and 
the obligee of a bond. It follows, then, that from the lan- 
guage of said section 24 it must be held that it was not the 
intent of the Legislature that the provisions for a permit 
and a bond as prerequisite to blasting should apply to a 
municipality performing such act through its own agents. 

It has been said by our Supreme Judicial Court that if 
a municipality "has chosen to take the work of repairing or 
constructing a street or bridge out of the charge of the 
officers designated by law, and itself to assume direct control 
of the work, it may be held liable for the negligence of the 
servants or agents whom it employs for that purpose." 
Haley v. Boston, 191 Mass. 291; and see cases there cited. 

It may well have been felt by the Legislature that when 
liability for blasting might rest upon a municipality, as 
such, the financial stability of such a body furnished ample 
security for the payment of damages which might be in- 
curred, without the necessity of a bond with sureties further 
to ensure payraent thereof; and it is not contemplated by 
said section 24 that a permit shall be issued to, or a bond 
exacted from, a mere employee of a municipality when 
blasting is in fact being carried on by the latter. 



452 opinions of the attorney-general. 

Municipalities — City Clerk — Appointment and 

Removal. 

A city clerk is not the head of a department, under G. L., c. 43, §§ 60 and 61. 
A city clerk under Plan A, G. L., c. 43, may not be removed in the manner set 
forth in section 18 of said chapter. 

Com^ttee The Committee on Cities has requested my opinion as 

°'i928^^' to whether, under Plan B for the government of cities, set 

^^^" forth in G. L., c. 43, the city clerk is to be regarded as a 

head of a department subject to appointment and re- 
moval by the mayor, subject to confirmation in the first 
instance by the city council, and in the second by the 
approval of a majority of the council. 

You have not advised me as to any measure before you 
for your consideration as to which your question is addressed, 
but I assume that your inquiry is made to me for the pur- 
pose of aiding you in the consideration of some legislative 
matter. 

G. L., c. 43, sets forth several plans or forms of charters 
for city government. Whichever plan may be accepted by 
a municipality is intended to be complete in itself, but its 
particular provisions are governed and controlled by certain 
sections of the chapter which are common to all the plans 
and operative upon all. Cunningham v. Mayor of Cam- 
bridge, 222 Mass. 574, 577. Section 18 is such a section 
common to all the plans, and operative as to Plan B. 

With relation to the office of city clerk section 18 pro- 
vides : — 

3. The council shall, by a majority vote, elect a city clerk to hold 
office for three years and until his successor is qualified. He shall have 
such powers and perform such duties as the council may prescribe, in 
addition to such duties as may be prescribed by law. He shall keep the 
records of the meetings of the council. 

The person holding the office of city clerk at the time when any of the 
plans set forth in this chapter has been adopted by such city shall continue 
to hold office for the term for which he was elected and until his successor 
is qualified. 



ARTHUR K. READING, ATTORNEY-GENERAL. 453 

These provisions as to the election of a city clerk are con- 
trolling and are not abrogated by sections 60 and 61, relative 
to appointments and removal of heads of departments. The 
office of city clerk was not intended by the Legislature to be 
comprehended by the term "heads of departments," as 
those words are used in said sections 60 and 61. 

You have also asked my opinion relative to the appoint- 
ment and removal of city clerks under Plan A, G. L., c. 43, 
§§52 and 54. These sections, like sections 60 and 61, do 
not change the effect of said section 18, and city clerks are 
not to be appointed and removed in the manner set forth 
in sections 52 and 54. That the intention of the Legislature 
was to provide a specific mode for the appointment of city 
clerks, applicable in all instances, irrespective of the manner 
provided for the appointment and removal of other officials 
under the four charter plans, is further indicated by section 
54, which requires that the notice of removal of a head of a 
department by the mayor shall be filed with the city clerk, 
and that the official so removed may file an answer to the 
reasons for his removal, set forth by the mayor, with the 
city clerk. Such a provision is obviously inconsistent with 
a legislative intent that the provisions of said section 18, 
relative to the city clerk, should be nullified by later sections 
of the same chapter in which it occurs. 



Corporations - — Securities — Default. 

Under G. L., c. 174, § 10, neither the seller's commissions nor his overhead expense 
shall be charged against the purchaser of a corporate security. 

You have asked my opinion as to whether the words commissioner 
"amount paid by said corporation on account thereof," as "Mfs*"^' 
used in G. L., c. 174, § 10, should be construed to include 
payments by way of commissions to a salesman or should 
be limited to payments made to a bond or certificate holder. 

The material part of G. L., c. 174, § 10, reads as follows: — 



May 21. 



454 OPINIONS OF THE ATTORNEY-GENERAL. 

Every corporation subject to this chapter shall provide in every 
bond, certificate or contract issued by it that, after one fourth of the 
total amount of instalments therein required has been paid and in any 
event after instalments for two full years have been paid thereon, in 
case of default in the payment of any subsequent instalment a paid-up 
bond shall be given to the holder of said bond, certificate or contract of 
not less than the full amount paid thereon less any amount paid by said 
corporation on account thereof, said paid-up bond to mature at the same 
date as the original bond, certificate or contract. 

The intention of the Legislature as expressed in this 
section, read in conjunction with the provisions of the entire 
chapter, is that the holder of a security, in case of default in 
his payments thereon, shall receive a paid-up bond equal to 
the difference in amount between the sum of his payments 
and the purchase price of the security which he had intended 
to buy. It was not contemplated that the seller's com- 
missions nor any part of the latter's overhead or other 
expense should be passed on to the purchaser. 



Betterments — Land devoted to a Public Use. 

Under St. 1925, c. 330, as amended, betterments relative to the Southern Artery 
may not be assessed against the United States Housing Corporation. 

To the Com- You have informed me that the Department of Public 

missioner of -^ 

P^jbH^, Works. Works, under St. 1925, c. 330, as amended by St. 1926, 
May^2. ^ ggg^ assessed betterments in connection with the con- 

struction of the Southern Artery, so called, among other 
parcels, upon three lots standing in the name of the United 
States Housing Corporation, and have asked me to advise 
you as to the powers of the Department relative to the 
assessments upon said three lots, I assume from the word- 
ing of your letter that title to said three lots was in the said 
corporation at the time of the making of the assessment. 

By said St. 1925, c. 330, as amended by St. 1926, c. 369, 
§ 2, the Division of Highways of the Department of PubHc 
Works was authorized to take by eminent domain, under 
G. L., c. 79, lands deemed necessary for the purpose of 



ARTHUR K. READING, ATTORNEY-GENERAL. 455 

carrying out the purpose of the statute by the construction 
of the said Southern Artery, and was required to assess 
betterments therefor under the provisions of G. L., c. 80; 
and it was further provided that "no awards and payments 
shall be made because of any taking of cemetery land or of 
any other land devoted to a public use, except as required by 
the Constitution, and no betterments shall be assessed on any 
such land." 

Land belonging to the United States Housing Corporation 
is land devoted to a public use. It is immaterial whether 
such devotion to a pubUc use arises from Federal or State 
law. The words as employed in the instant statute apply 
in either event. That land acquired by the United States 
Housing Corporation is for a public use is manifest from 
the Act of Congress, 40 Stat. (U. S.) 550, authorizing the 
acquisition of land for housing in connection with the prose- 
cution of the World War, and from the Act of Congress, 
40 Stat. (U. S.) 595, authorizing the creation of a corpora- 
tion to hold such land, and from the formation of the United 
States Housing Corporation to carry out such purpose. See 
United States v. City of New Brunswick, 1 Fed. (2d) 741, and 
Same v. Same, 11 Fed. (2d) 476. 

It is not necessary to enter upon a consideration of the 
nature of such a corporation as an agency of the Federal 
government, nor the extent of its immunity from taxation 
upon its property in the form of betterment assessments 
by a State. See M'Culloch v. Maryland, 4 Wheat. 316; 
Clallam County v. United States, 263 U. S. 341 ; Lee v. Osceola 
etc. Improvernent District, 268 U. S. 643; United States v. 
City of New Brunswick, supra. The provisions of the in- 
stant statute itself do not authorize the imposition of such 
an assessment as has been made upon the three parcels of 
land belonging to the United States Housing Corporation. 



456 opinions of the attorney-geneeal. 

Constitutional Law — Pardon — Parole. 

The Governor may pardon a prisoner and the Board of Parole may issue a permit 
to be at liberty to a prisoner, but neither will necessarily free him from the 
form of restraint specified in the second sentence of G. L., c. Ill, § 121. 

To the You have transmitted to me the following communi- 

Board of ° 

%°28 cation: — 

May 24. 

A man was sentenced on March 24, 1922, to serve eighteen to twenty- 
years at the Massachusetts State Prison for manslaughter. On May 10, 
1926, he was transferred to the Prison Camp and Hospital, as he was 
found to be suffering from tuberculosis. 

May I have a ruling as to whether or not it would be possible, under 
G. L., c. Ill, § 121, for His Excellency the Governor to grant a pardon 
or the Board of Parole to release a man on parole when he had served 
two-thirds of his minimum sentence, if the disease is active. 

The Governor, in the exercise of the power vested in him 
by the Constitution (pt. 2nd, c. II, § I, art. VIII), may 
pardon the prisoner to whom you refer. If the pardon is 
unconditional it will operate so as to cause "the expira- 
tion of his sentence," within the meaning of G. L., c. Ill, 
§ 121, forthwith (see VIII Op. Atty. Gen. 327). Likewise, 
under the statutory authority of G. L., c. 127, §§ 128-131, 
as amended, the Board of Parole has authority to act and 
may grant a special permit to be at liberty to the said 
prisoner at the time indicated in your communication. 
When such a permit has been issued, the date of its becom- 
ing effective may also be construed as "the expiration of 
sentence," within the meaning of said section 121. The 
confinement of the prisoner in the Prison Camp and Hospi- 
tal, under G. L., c. 127, § 109, does not withdraw him from 
the jurisdiction of the Board, vested in it by G. L., c. 125, 
§ 7, and specifically made applicable to inmates of the Prison 
Camp and Hospital by G. L., c. 127, §§ 128 and 129, as 
would a commitment of a prisoner to a State hospital for 
the insane (see V Op. Atty. Gen. 141), nor does such con- 
finement prevent the exercise of the power of pardon by the 
Governor, as does a commitment to a State hospital of one 



ARTHUR K. READING, ATTORNEY-GENERAL. 457 

found not guilty of murder on account of insanity (see V 
Op. Atty. Gen. 591). 

Nevertheless, the granting of a pardon or the issuance of 
a permit to be at liberty may not operate of itself to free a 
prisoner, such as you have described, from the form of 
restraint specified in the second sentence of said G. L., 
c. Ill, § 121. This restraint is not imposed as a punishment, 
nor because of the existence of any effective sentence of a 
court, but solely as a means of protecting the general public 
health. The determination of the necessity for its imposi- 
tion and the length thereof are placed by the Legislature in 
the sound discretion of the attending physician of the insti- 
tution where the prisoner has been confined. 

Said section 121, in substantially the form in which it 
stands today but not including pulmonary tuberculosis, 
which was added by St. 1920, c, 306, was enacted by St. 
1891, c. 420, which antedated the original enactment of 
G. L., c. 127, § 129, in so far as it relates to paroles for in- 
mates at the Prison Camp and Hospital, by St. 1904, c. 243, 
and St. 1906, c. 243, and antedates G. L., c. 125, § 39, con- 
cerning the Prison Camp and Hospital, in its original form, 
St. 1898, c. 393. It does not appear that any of the statutes 
relative to parole contemplate the working of a repeal of 
the provisions of restraint for persons suffering from diseases 
set forth in G. L., c. Ill, § 121. Since the provisions relative 
to such restraint, in the second sentence of said section 121, 
are not operative until after the expiration of sentence, it 
is obvious that a pardon, which may be said to cause a 
sentence to expire, does not have the further effect of pre- 
venting the enforcement of the restraint made necessary by 
disease. 

The provisions of G. L., c. Ill, § 121, have been on our 
statute books in substantially their present form for over 
thirty-five years. It does not appear that their consti- 
tutionality has been questioned. They purport to be such 
an interference with the liberty of a certain class of persons 
as may be justified as a health measure under the general 



458 OPINIONS OF THE ATTORNEY-GENERAL. 

doctrine of the police power inherent in the sovereign, and 
in the absence of authoritative judicial decision to the 
contrary should be regarded as binding by all executive 
and administrative officials. 



Insurance — Group Policies — Fraternal Benefit 

Association. 

Membership in a benefit association is not a condition pertaining to employment, 
under G. L., c. 175, § 133, as amended, which makes possible the insurance 
of the members of such an association in a policy of group insurance to the 
exclusion of fellow employees not members. 

Commissioner You have Stated in a communication to me as follows : — 

of Insurance. 
1928 

May 24. It has come to my attention that certain policies of group life insur- 

ance have been issued to employers in this Commonwealth covering the 
lives of such of their employees as are members of a mutual or fraternal 
benefit association composed of their employees and operated for their 
benefit. 

And you have asked my opinion upon the following question 
relative thereto : — 

Is membership in such a mutual or fraternal benefit association "a 
condition pertaining to the employment," within the meaning of G. L., 
c. 175, § 133, or may a life insurance company lawfully issue such a policy 
insuring only such employees as belong to such an association? 

I answer your question in the negative. It is plain from 
the terms of G. L., c. 175, § 133, as amended, that the legis- 
lative intent was that all employees of a given employer, 
or at least all those engaged in the same general type or kind 
of work for such employer, should constitute a distinct 
group for the purpose of receiving the benefits of insurance. 
It is possible that there may be conditions growing out of 
the employment, such as locality or time of work, which 
may likewise permit the formation of distinct groups for 
the purpose of insurance. Nevertheless, membership in a 
benefit association is not one of "the conditions of employ- 



ARTHUR K. READING, ATTORNEY-GENERAL. 459 

ment," as those words are used in said section 133, even 
though membership in such association is limited to em- 
ployees of the employer seeking group life insurance. To 
create a special group within a larger class, a