■I'':
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PUBLIC DOCUMENT .... .... No. 12.
(Kommoniw^altlj oi S^assac^us^tts.
ANNUAL REPORT
ATTOENET- GEI^ER AL
Year Ending January 20, 1892.
BOSTON :
WRIGHT & POTTER PRINTING CO., STATE PRINTERS,
18 Post Office Square.
1892.
STATEf^^5!]7nr^'''--7:
STATE HOUbL
..u 1
i uH.
Commnnto^alt^ d "^ixs^uthixBtttB.
Attobnet-General's Depaetment,
Commonwealth Buildixo, Bostox, Jan. 21, 1892.
lo the Honorabh the Speaker of the House of Representatives.
I transmit herewith to the General Court the report of
this department for the year ending Jan. 20, 1892.
Very respectfully, your obedient servant,
ALBERT E. PILLSBURY,
Attorney- General.
(!i;0mm0nt"ocitltlj jof Ulassaxkisrfts.
Attokney-General's Department,
Commonwealth BiaLPiNO, Boston, Jan. 21, 1892.
To the Honorable the General Court.
In compliance with section 9 of chapter 17 of Public Stat-
utes, I submit the report of this department for the year end-
ing Jan. 20, 1892.
Cases requiring the attention of the department during the
year, to the number of 810, are taluilated below : —
Indictments for murder,
Exceptions and reiiorts in criminal eases, ....
Informations u2)on relation of public oiRcers,
Informations upon relation of private persons,
Writs of error,
Petitions for habeas corpus,
Petitions for abolition of grade crossings, ....
Requisitions for fugitives from justice,
Proceedings for dissolution of corporations loi- failure to make
returns,
Voluntary proceedings for dissolution of corporations, .
Tax returns of corporations enforced without suit,
Condition returns of corporations enforced without suit,
Other returns of corporations aforesaid not classified above,
Collections made without suit, .......
Proceedings now pending to enforce corporation taxes or returns
Delinquent corporation taxes for 1891, transmitted by Treasurer
December 22,
Public charitable trusts, .......
Old cases examined and found to have been disposed of,
Miscellaneous suits and proceedings not otherwise classified,
Total,
15
114
112
8
6
8
42
7d
5
3.5
81
45
21
82
20
71
21
13
29
810
In some reports of previous years, matters- which might
eventually require the filing of an information were classified
as informations, whether proceedings in court had actually
been begun or not. In the foregoing table the statement is
limited to informations actually filed ; and the other cases
6 ATTORNEY-GENERAL'S REPORT. [Jan.
formerly so described are classified under other heads, in
accordance with the facts. It is only a statement of cases,
and does not include a large amount of miscellaneous
business which is difficult of classification. The work of
the department is steadily increasing, especially by the
addition of new subjects, such, for example, as the grade-
crossing cases and a variety of other matters with which it
is charged from year to year under particular statutes, by
the multiplying number of corporations wdiich require offi-
cial supervision, and by the growing demand of the State
departments and commissions for legal advice and assistance.
Capital Cases.
Indictments for murder pending at the time of the last
report of this department have been disposed of as follows : —
In the case of John Bessette of Ludlow, indicted in
Hampden, May 3, 1890, for the murder of his wife, at Lud-
low, Dec. 26, 1885), William H. Brooks, Esq., of Holyoke,
originall}^ assigned as counsel for the defence, was excused
at his own request, and Stephen S. Taft, Esq., of Palmer,
was appointed in his place. There was doubt of the pris-
oner's sanity at the time of the commission of the crime,
and during his detention in jail dementia became so far
advanced that he evidently was unfit to be tried. Accord-
ingly, at the time appointed for the trial of Costello, April
G, upon a hearing by the court he was found to be insane
and was committed to the State Lunatic Hospital at
Worcester, in accordance with the statute. The indictment
remains on file.
In the case of Edw^ard F. Costello of Paliiier, indicted
in Hampden, Sept. 24, 1890, for the murder of his child at
Palmer, June 11, 1890, Frederick II. Gillett, Esq., assigned
as senior counsel for the defence, was excused at his own
request, and Edwin F. Lyford, Esq., was assigned as junior
counsel with Charles II. Barrows, Esq. Costello was tried
at Springfield, April G-9, before justices Knowlton and
Lathrop. The act was admitted, and the only defence was
insanity. He was convicted of murder in the second
degree, and was sentenced April 9, and connnitted to the
State Prison for life.
1892.] PUBLIC DOCUMENT — No. 12. 7
BE>HrAMiN F. Taylor of Boston, indicted in Suffolk,
Dec. 8, 1890, for the murder of Wilder F. Hutchings at
Boston, Nov. 15, 1890, was arraigned January 29, and
pleaded not guilty, and Messrs. William W. Doherty and
William R. Trask of Boston were assigned as counsel for
the defence. Subsequently Mr. Doherty was excused at his
own request, and Hon. Everett C. Bumpus of Boston was
appointed in his place. Upon investigation of the case,
Taylor was allowed to retract his plea of not guilty, and
pleaded guilty of murder in the second degree, and there-
upon. May 14, he was sentenced and committed to the State
Prison for life.
Jonathan Brigham Davis of Enfield, indicted in Hamp-
shire, Dec. 19, 1890, for the murder of Eva M. Holden at
Amherst, Sept. 20, 1890, was arraigned at Northampton,
January 26, and pleaded not guilty, and Messrs. Timothy
G. Spaulding of Northampton and Frank E. Paige of
Amherst were assigned as counsel for the defence. Davis
was of low mental powers, and I became satisfied that the
plea of guilty of murder in the second degree, subse-
quently tendered by his counsel, would meet the purposes
of justice. He accordingly pleaded guilt}-^ of that offence
April 21, and was thereupon sentenced and committed to the
State Prison for life.
Daniel H. Wilson of Boston, indicted in Suffolk, Dec.
9, 1890, for the murder of Annie C. Wilson at Boston, Oct.
18, 1890, was arraigned January 29, and pleaded not guilty ;
and Messrs. Bordman Hall of Boston and William M. Butler
of New Bedford were assigned as counsel for the defence.
The trial of Wilson has been prevented by the state of his
health and by the insanity of a principal government witness,
of whose recovery so as to be able to testify I am advised
that there is reasonable expectation. This is the last indict-
ment for murder remaining in the supreme court.
Indictments for murder found during the year have been
disposed of as follows : —
Michael J. Callahan of Peabody was indicted in Essex,
Pel). 2, 1891, for the murder of James W. Lane, at Salem,
Dec. 13, 1890. I received the indictment Feb. 4, 1891.
Callahan was arraigned at Salem, March 13, and pleaded not
guilty ; and Messrs. Henry P. Moulton and Joseph F. Quinn
8 ATTORNEY-GENERAL'S REPORT. [Jan.
were assigned as counsel for the defence. Subsequently his
trial was appointed for May 5. In the mean time his coun-
sel tendered the plea of guilty of manslaughter ; and, as the
homicide occurred in a drunken affray, under circumstances
which would have fully warranted a jury in finding the lesser
offence, I accepted the plea, and on the day appointed for
trial Callahan was sentenced, and committed to the State
Prison for seven years.
Charles J. Tighe of Boston was indicted in Bristol, June
19, 1891, for the murder of Peter E. Johnson, at Fairhaven,
June 8, 1891. The indictment was received June, 21, 1891.
Tighe was arraigned June 29, and pleaded not guilty ; and
Messrs. Timothy W. Coakley of Boston and Fred JN'. Wier
of Lowell were assigned as counsel for the defence. Trial
at New Bedford, October 13-23, before justices Morton and
Barker.
This was in some respects a remarkable case, depending
upon circumstantial evidence. Tighe, Johnson, the mur-
dered man, who was a Gay Head Indian, well known in that
part of the State as one of the crew of the life-boat which
brought ofi' the survivors from the wrecked " City of Colum-
bus " at Gay Head in January, 1884, and George W. Fletcher
of New Bedford, a colored man,- started down New Bedford
harbor in Johnson's boat, all more or less intoxicated, about
half-past six p.m. on Monday, June 8. On the following
morning a fisherman rowing bj^ Egg Island, ofl:' the Fairha-
ven shore, was hailed bj^ Tighe from the island to take him
ashore to Fairhaven which the fisherman did. Rowing back
to the island, the fisherman found Johnson's boat aground,
with his murdered body lying alongside. Information was
at once given to the police, and Tighe was pursued and taken
at Taunton about midnight. On the following Sunday, June
14, the body of Fletcher was found floating in the harbor,
dead by drowning. Tighe was skilfully defended by Messrs.
Coakley and Wier, in a trial which occupied ten days, and
involved the examination of nearly a hundred witnesses, on
the ground that Fletcher committed the nmrder ; and an
attempt was made to show that he had at various times mani-
fested symptoms of insanity, of a homicidal character. The
belief of the prosecution was that the homicide was the result
of a drunken aftray, in which all three were involved. The
189 2. J PUBLIC DOCUMENT — No. 12. 9
jury apparently adopted this view, and convicted Tiglie of
manslaugbter. Numerous exceptions were taken, whicli
were subsequently waived, and October 31 he was sentenced,
and committed to State Prison for seven years.
I have been ably assisted in all these cases by the district
attorneys of the respective districts in which they arose, and
especially in the trial of Costello by District- Attorney Hibbard,
and in the trial of Tighe by District-Attorney Knowlton.
The following indictments for murder are pending in the
superior court, being the first to be tried in that court under
chapter 379 of the Acts of 1891. Under this statute, the
preliminary proceedings in capital cases are left to the dis-
trict attorneys, as attorneys for the Commonwealth in all
cases in the superior court. I report the proceedings so
far as I am advised of them.
Samuel Alexander of Chicopee was indicted in Hamp-
den, Sept. 30, 1891, for the murder of James Nesbitt of
Chicopee, July 22, 1891.
Raffaele Scorpio of Fall River, indicted in Bristol,
Nov. 9, 1891, for the murder of Matthew Cullen at Fall
River, June 28, 1891, was arraigned Nov. 23, 1891, and
pleaded not guilty, and Messrs. John W. Cummings and
Edward Higginson were assigned as his counsel.
Anna Makepeace of Avon, indicted in Norfolk, Dec.
11, 1891, for the murder of her husband, Clarenoe Make-
peace, at Avon, Sept. 25, 1891, was arraigned Jan. 1, 1892,
and pleaded not guilty, and Messrs. James E. Cotter and
John W. McAnarney were assigned as her counsel.
Wallace W. Holmes of Chicopee was indicted in Hamp-
den, Dec. 24, 1891, for the murder of his wife, Nellie F.
Holmes, at Chicopee, Sept. 1, 1891.
William Coy was indicted in Berkshire at January term,
1892, for the murder of John Whalen at Washington, Aug.
30, 1891.
John H. Steadman of Boston, indicted in Suffolk,
Jan. 8, 1892, for the murder of James H. Gallagher at
Boston, Dec. 19, 1891, was arraigned January 18, and
pleaded not guilty.
Roger T. Scannell of Boston was indicted in Suffolk,
10 ATTORNEY-GENERAL'S REPORT. [Jan.
Jan. 8, 1892, for the murder of Josephine Brown at Boston,
Dec. 24, 1891.
I am given to understand that the transfer of the trial of
capital crimes to the superior court will so far add to its
work, that, to avoid undue delays and the inconvenience
which may result from interfering with other assignments,
it will proljably be necessary to make an addition to the
numl)er of judges.
Argument of Criminal Appeals.
I am satisfied that the questions of law arising in most of
the criminal and other Commonwealth cases in the superior
court should be argued before the full court by the district
attorneys in charge of the cases in which they arise. After
the re-establishment of the office of Attorney-General in
1849, the district attorneys continued to argue many of the
criminal appeals : but in the course of time the practice
grew up of having them argued by the Attorney-General.
The constantly increasing pressure of business upon this
department now makes it necessary to leave the prepara-
tion and argument of these cases largely to the assistants.
Every lawyer will appreciate that, as a rule, a question of
law may be best presented to the full court by the counsel
who tried the case below. The present system of argument
of the criminal appeals by counsel who know nothing of the
case or of the trial except what can be gathered from the
record or l)ill of exceptions, is anomalous and unsatisfac-
tory. Another reason^n favor of the change is, in my
opinion, that it will be likely to materially reduce the num-
ber of cases in which appeals and exceptions are taken for
delay, only to be waived when reached for argument. In
all these cases, under the present system, the Common-
"wealth is obliged to prepare for argument and print briefs,
at much labor and expense, which turn out to be wasted.
This difficulty ma}^ be in part avoided if the cases remain in
charge of the district attorneys, who are familiar with all the
facts, and who are on the spot and in contact with the counsel
and the parties. I am confirmed in my opinion of the expedi-
ency of this change by that of three-fourths of the district attor-
neys at present in office, who express themselves to me
1892.] PUBLIC DOCUMENT — No. 12. 11
unequivocally in its favor, and of several of the most experi-
enced judges and ex-judges and former prosecuting officers,
with whom I have conferred, and who without exception
approve it.
I do not think the proposed change of system necessarily
requites any change in the law, as an appeal or bill of
exceptions does not transfer the case to the appellate court,
and should logically be followed to that court by the counsel
in charge of the case below ; but it may be deemed better
to effect it by direct enactment.
Discharge of Juvenile Offendeks on Writ of Error.
During the year several persons under conviction and
sentence have been discharged by the suprem,e judicial court
on writ of error, for the reason that it appeared, on the
hearing in error, that they were under seventeen years of
age when convicted ; while the record did not disclose com-
pliance by the lower court with the requirement of section
20 of chapter 89 of the Public Statutes, to summon the
parent or guardian of the offender. The source of the diffi-
culty was that the lower court was uninformed or was
deceived as to the age of the oflender, having treated him
as above the limited age of juvenile offenders ; and it being
held permissible to prove on writ of error that he was under
that age, on the ground that this fact was not in issue below
and so was not concluded by the record, the proceedings
were held to have been without jurisdiction. As the actual
age of the offender is always within his own knowledge or
that of his friends, and as the only purpose of concealing or
misstating it must be to escape punishment, it may be expe-
dient to provide by statute that evidence that the offender'
was within the prescribed age at the time of conviction shall
not be admitted on writ of error or other proceeding subse-
quent to the conviction, to affect the validity of the
proceedings.
Detention of Witnesses in Criminal Cases.
It was ruled in Suffolk in June, by a justice of the
supreme judicial court, in the case of Phillip Hoffman on
habeas corpus, in effect, that under existing statutes a wit-
12 ATTORNEY-GENERAL'S REPORT. [Jan.
ness in a criminal case cannot lawfully be detained in cus-
tody if the person charged with the crime is not also in
custody. This is contrary to the understanding and prac-
tice which have heretofore prevailed, and is liable in some
cases to defeat the ends of justice ; as a necessary govern-
ment witness may disappear while the criminal is being pur-
sued and taken. I recommend such legislation as will put
beyond doubt the power to hold a witness for a reasonable
time in any case of felony.
Jurisdiction of Trial Justices over Drunkenness.
There is reason to believe that chapter 427 of the Acts of
1891, probably by inadvertence, deprived trial justices of
any power to punish the offence of drunkenness except by
imprisonment in the Massachusetts Reformatory ; as the
penalty established by section 5 is imprisonment in jail for
not more than one year, which seems to put the offence
beyond the jurisdiction of these magistrates to punish except
by imprisonment in the reformatory, which they have the
power to do under another statute. In consequence of this
view of the effect of the statute, many cases have occurred
during the year of the detention of persons charged with
this offence to await the action of the grand jury. I recom-
mend that the power of which trial justices were thus
deprived be restored to them.
Personal Replevin.
Clarietta Johnson, who was held in the Reformatory
Prison for Women at Sherborn under conviction and sen-
tence by the district court of the United States for an oftence
against the laws of the United States, was taken from the
prison May 15, 1891, on a writ of replevin under Public
Statutes, chapter 185, sections 40-47, and set at liberty, on
giving the bond therein provided for. She was immediately
rearrested and recommitted to the prison by the author-
ities of the United States, who deny that this process prop-
erly applies to a Federal prisoner held in our prisons
under sentence of a Federal court ; and it was only with
some difficulty that the case was prevented from being a
subject of controversy between the authorities of the State
and of the United States. I suggest the expediency of
1892.] PUBLIC DOCUMENT — No. 12. 13
some amendment of this statute, for which section 39 of
chapter 185 may furnish a precedent, to prevent in the
future the conflict of authority which may arise under its
present form.
The Lobby Law.
Under chapter 456 of the Acts of 1890, as amended by
chapter 223 of 1891, the secretary of the Commonwealth
transmitted to me, August 11, the legislative dockets and
papers relating thereto, with a list of sixty-seven persons,
firms, corporations or associations, whose returns of expenses
under section 6 of the act of 1890 had not been filed within
thirty days after the prorogation of the General Court, or were
supposed to be defective. In the cases of eight of them no
returns had been filed when the information was transmitted
to me ; in the cases of twenty-eight others the returns had
been filed after the limited period, birt before August 11 ;
and in the cases of the remaining thirty-one the returns,
though seasonably filed, were supposed to be defective.
The penalty of the statute for violation of its provisions is a
fine of not less than one hundred nor more than one thousand
dollars, on indictment by the grand jury. I gave immediate
personal attention to the subject, and, while there appeared
to me upon examination of the facts, to be no case in which
the grand jury would be likely to return an indictment, I
deemed it proper to submit the evidence to that body ; and
accordingly I caused it to be presented to the grand jury of
Suffolk County at its next session, on the first Monday of
September. No indictments w^ere returned. I concur with
the able and experienced district attorney of Sufiolk, in the
opinion that no prosecutions were necessary to the ends of
justice in these cases. With three exceptions every return
required by law had been filed when the information was
transmitted to me (as of the eight which were wanting, five
were not required by the law), and these three were filed
with the secretary immediately thereafter. The thirty-one
returns which were supposed to be defective, appeared upon
examination to be sufficient, and the delay in filing the returns
within the prescribed time appeared in every case to be due
either to some accident or inadvertence, or to want of actual
knowledge of this requirement of the law. There was in no
case any reason to suppose that the failure to file the return
14 ATTORNEY-GENERAL'S REPORT. [Jan.
within the proper time was wilful, or any indication of a
purpose to evade or disregard the law.
I have made some sugarestions to the sersreant-at-arms
Co O
upon the form of keeping the dockets, so as to secure a
more complete and accurate disclosure of the information
called for by the statute, which is essential to its enforcement.
The Short Term Endowment Orders.
Early in the year my attention was directed to the conduct
of several of the so-called short term endowment orders.
The legislation under which these corporations were organ-
ized is peculiar, in omitting the principal safeguards usually
provided by law for the regulation of any business of this
character. Even the few provisions which are apparently
designed to secure the proper conduct of the business are so
vague and inaccurate of expression as to be in many cases
difficult of construction and practically incapable of enforce-
ment. The only remedy or penalty provided for violation
of the most important requirements of the law is by fine not
exceeding $200 upon the corporation and its oflScers and
agents ; and while this has been enforced in the few cases
to which it could be made to apply, it is plainly inadequate
to the efficient regulation of the system. No power is given
to the Attorney-General to interfere under any circumstances,
and in the absence of statutory authority the powers of this
office extend only to the protection of public interests and
the redress of public wrongs. The funds and other property
of these corporations belong to their members alone. The
public has no legal interest in them, and no legal concern
with them, except under such circumstances as amount in
law to a violation of public right. No case has come to
my knowledge in which, under the present form of the stat-
utes on this subject, sufficient legal grounds existed to
support proceedings by the Attorney-General, or in which
the very authority granted by the Legislature to the corpora-
tion would not have been a defence to such proceedings.
Constitutional (Questions, etc.
An unusual number of cases involving important constitu-
tional questions have been argued or determined during the
1892.] PUBLIC DOCUMENT — No. 12. 15
year. The constitutionality of the act for the regulation of
the fisheries, chapter 192 of the Acts of 1886, has been
affirmed by the supreme court of the United States, in the
case of Manchester v. Massachusetts, 139 U. S. 240, referred
to in the last report of this department. In the case of
Hosea Kingman et als., petitioners, 153 Mass. 56(), the
supreme judicial court sustains the constitutionality of the
act establishing the Metropolitan system of sewerage, chap-
ter 439 of the Acts of 1889. The weavers' fines act of the
last Legislature, chapter 125 of the Acts of 1891, was held
unconstitutional by a majority of the court, in Common-
wealth V. Perry, Worcester, and Commonwealth v. Potomska
Mills, Bristol. The habitual criminals act, chapter 435 of
1887, was sustained, in Commonwealth v. Graves, Suffolk.
The constitutionality of the oleomargarine law, chapter, 58
of the Acts of 1891, was argued in SuflTolk in November,
in the cases of Benjamin A. Plumley, petitioner for habeas
corpus, and Commonwealth v. Russell Huntley et al.,
which are awaiting decision.
The tax suits against the AVestern Union Telegraph Com-
pany, in th6 supreme court of the United States, and the
suit against the Algonquin Club to enforce the Back Bay
restrictions, pending at the time of the last report, have been
decided in favor of the Commonwealth ; and the telegraph
company has paid the amount of the judgment, $70,285.72
and $157.95 costs.
In the case of the Commonwealth v. The Fitchburg Rail-
road Company, for rentals of the Southern Vermont Railroad,
pending on exceptions at the time of the last report, the
exceptions were waived in consideration that the Common-
wealth would agree to accept payment of the judgment
awarded in the superior court, and the rentals subsequently
accrued, in the four per cent, bonds of the company at par,
which was don6 by an order of the Governor and Council of
March 18, 1891, and payment was made accordingly by
delivery to th^ treasurer of such bonds of the par value of
$99,000, and $533.35 in cash, the amount of the judgment
and subsequent rentals, with interest, being $99,533.35.
The settlement of the Western Union and Fitchburg Rail-
road cases carries the collections of the year to the sum of
16 ATTORNEY-GENERAL'S REPORT. [Jan.
244,117.79 dollars, largely exceeding the collections of any
former year.
Abolition or Grade Crossings.
The abolition of grade crossings, under chapter 428 of
the Acts of 1890, is progressing reasonably, though not so
rapidly as may have been anticipated. The principal duty
of the counsel for the Commonwealth in these cases is to
secure the appointment of commissioners who are free from
local interest or influence, and to see that the scheme adopted
is not unnecessarily expensive, in which the railroads generally
co-operate, and to prevent the assessment upon the Common-
wealth of more than the twenty-five per cent, of the cost,
which is its minimum proportion under the statute. The
cities and towns are generally willing to pay the ten per
cent, which is their maximum, as they ought to be. The
Legislature dealt so liberally with them in limiting their
proportion of the cost to ten per cent, in any case, that no
part of this amount should be charged upon the Common-
wealth except for the plainest and most conclusive reasons,
in cases of obvious hardship, which will rarely arise. The
commissioners seem generally to have acted upon this view.
Penalties upon Delinquent Corporations.
By Public Statutes, chapter 13, section 54, a corporation
which neglects to make its tax return is liable to a forfeiture
of two per cent, upon the par value of its capital stock ; and
by chapter 106, section 81, a corporation which fails to file
the return required b}' section 54 is liable to forfeit two hun-
dred dollars, and its officers are jointly liable to the same
penalty. A large number of corporations are delinquent in
each year under these provisions. It has never been the
practice, however, to exact the i)rescribed penalties, which
in most cases would be regarded as oppressive, if the return
is made when called for or proceeded for. At the same time,
it seems that a corporation which is so delinquent in these
particulars as to require the Commonwealth to go into court
to compel the making of the return, should be subject to
some penalty beyond the taxable costs of the case. I sug-
gest the question whether it may be expedient to reduce the
1892.] PUBLIC DOCUMENT — No. 12. 17
amount of these penalties to a point at which they may be
uniformly enforced without injustice or undue severity.
By chapter 330 of the Acts of 1884, all foreign corpora-
tions having a usual place of business in this Commonwealth
are required to appoint the commissioner of corporations
their attorney for service of process, under penalty of a fine
not exceeding five hundred dollars upon the officers or agents
of the corporation. This penalty is often difficult or impos-
sible of enforcement, for the very reasons w^hich led to the
enactment of the statute. The statute may reasonably be
extended to all foreign cor})orations doing or carrying on
business in this Commonwealth, whether they have a " usual
place of business" here or not'; and there should be a more
effective remedy for violation of this requirement, by in-
junction, on information at the relation of the commissioner
of corporations, as in the similar statute concerning foreign
vessels, chapter 393 of 1889. I make this suggestion in
view of actual cases in which the statute in its present form
has been found inadequate to cure the mischief against which
it is directed.
Advising Public Officers, etc.
I respectfully renew the recommendation of my predeces-
sors that the right to consult this department be extended
to the several State boards, commissioners and principal
officers not included in section 8 of chapter 17 of the Public
Statutes, or some other statute. I have advised them,
unofficially, whenever requested ; but the practice is un-
satisfactory, and I know no reason w^hy the several boards
and officers should not be put upon the same footing in this
respect.
I suggest, also, the expediency of authorizing the Attorney-
General to advise, within reasonable limits, upon general
questions of election law arising in the cities .and towns,
for which there is a great and constant demand upon this
department which cannot be complied with under the statute
or consistently with the establislied practice.
18 ATTORXEY-GENERAL'S REPORT. [Jan.
Opinions.
The frequent inquiry which is made for the official opinions
of the Attorney-General, and the difficulty of procuring them
even from the tiles of this department, in which they can be
found if at all only by searching through voluminous corre-
spondence, and other reasons which need not be stated, lead
me to believe that we may adopt with advantage the custom
of other States to print such part of them as may be of ])ub-
lic interest or importance or useful for future reference ; and
I have according!}^ appended copies of such to this report.
Publication of Capital Tpjals.
The pressure of the business of the office lias left me without
time to examine or revise for publication the report of any
capital trial, as authorized by chapter 214 of the Acts of
1886 ; and I respectfully recommend that the appropriation
of the year 1891 be kept on foot or renewed, so as to remain
available for this purpose, if needed, and that the annual
appropriation be continued.
Extradition Cases.
I respectfully recall the attention of the Legishiture to the
recommendation of my predecessors that some further regu-
lation be provided by law concerning the taking from the
Commonwealth of alleged fugitives from justice without
extradition or some similar proceeding. This is often done
with the consent of the alleged fugitive, and occasionally, I
presume, without express consent if he does not object or
resist. This avoids delay and expense, but the question of
his consent is sometimes in dispute, and the regularity of
the taking ought not to depend on a question of veracity
between the officer and the prisoner. For cases in which
the fugitive is willing to go without the formality and delay
of a requisition, it may be sufficient to provide that he shall
declare his willingness before the Executive or a judge or
prosecuting officer; and in any legislation on this subject a
distinction may properly be made between persons who are
merely charged with an offence, and escaped convicts.
1892.] PUBLIC DOCUMENT — No. 12. 19
The rules for the regulation of applications for requisitions
upon other States for fugitives from justice, framed by the
Inter-State Extradition Conference in New York in 1887,
adopted for this Commonwealth by Executive order, and
printed in the report of this department for that year, are
of increasing importance in view of the nmnber and character
of these applications, and should be in the hands of all the
prosecuting officers, heads of police departments and the
inferior courts ; and as I find that they have not become so
widely known or distributed as they should be, some even
of the district attorneys having no copies of them, they are
annexed hereto for republication.
Assistants.
Charles N. Harris of Cambridge was appointed Jan. 21,
1891, to the vacancy in the office of Second Assistant Attor-
ney-General ; and upon the resignation of First Assistant
Attorney-General Henry C. Bliss, March 14, George C.
Travis of Newton was appointed in his place. I am indebted
to Mr. Bliss for the preparation and argument before the full
court of the important case of Commonwealth v. Williams-
town, which had been in his charge while he was serving
with my. predecessor ; and to Messrs. Travis and Harris for
efficient service during the year in their respective positions.
ALBERT E. PILLSBURY,
Attorney- General.
20 ATTORNEY-GENERAL'S REPORT. [Jan.
OPINIONS
[A company chartered by another State to transact insurance and
other business may be admitted to transact insurance in Mas-
sachusetts, though transacting in other States business not
permitted here as insurance.]
Attorney-General's Department,
Commonwealth Building, Boston, Feb. 5, 1891.
Hon. George S. Merrill, Insurance Commissioner.
Sir: — I have considered your communication of January 24,
submitting .the question whether a corporation chartered by
another State to transact the business of insurance and other busi-
ness recognized as insurance by the laws of its own State, and
other business which is not insurance, is entitled to admission to
Massachusetts to transact here a class of business recognized b}'
our law as insurance, while it is transacting in other States busi-
ness not permitted here as insurance.
Confining the inquiry, as I presume you intended, to the legal
question whether such a company as you describe can lawfully be
admitted to do business in Massachusetts as above stated, or, in
other words, whether the Insurance Commissioner has power under
the statutes to admit such a company to do such business, it must,
in my opinion, be answered in the aftlrmative.
Very respectfully, your obedient servant,
A. E. PiLLSBURY, Attorney-General.
[Deposit of reserve fund of fraternal beneficiary corporations.
Treasurer may receive lawful money in certain cases.]
Attorney-General's Department,
Boston, Feb. 27, 1891.
Hon. George A. Harden, Treasurer.
Sir : — The statute referred to in your inquiry of the 26th inst.,
concerning the deposit of the reserve fund of certain fraternal
beneficiary organizations (Acts of 1890, chapter 341, section 18),
must be taken as designed to insure to the members of these
associations an income upon their funds, as well as safety in their
1892.] PUBLIC DOCUMENT — No. 12. 21
investment ; and so to require their investment in the specified
interest-bearing securities, so far as possible. But in such a case
as you describe, in which a deposit must be drawn upon so soon
that its conversion into the prescribed securities and their recon-
version into cash would be difficult or impracticable, the necessity
of the case seems to require some modification of the rule ; and by
a reasonable construction of the statute you are, in my opinion,
authorized to receive such deposit in lawful money, but not in a
certificate of deposit, even of a State depositary, unless you
choose to take it at your own risk. So far as I am aware, these
are depositaries only of "the public moneys." (Public Statutes,
chapter 16, section 55.) The funds here in question do not seem
to be " public moneys " in the sense of the statute. They belong
to the members of these associations, and are held by you in trust
for them ; and as j^ou are authorized to receive money only from
the necessity of the case, and only so far as the necessity extends,
if you take a certificate of deposit you may be held to account for
it as money in any event.
Very respectfully, your obedient servant,
A. E. PiLLSBURY, Attorney- General,
[Right to vote upon Commonwealth's stock in Fitchburg' Railroad.
Governor and council, or their committee, may exercise the
power to vote on State stock in railroad companies.]
Attorney-General's Department,
Boston, March 20, 1S91.
To His Excellency the Giyvernor.
In reply to your inquiry concerning the voting power upon the
stock of the Fitchburg Railroad held by the Commonwealth I have
to say, that the right is limited by article five of the Articles of
Consolidation of the Fitchburg Railroad Company and the Troy &
Greenfield Railroad and Hoosac Tunnel, dated Jan. 5, 1887, of
which a copy is printed in the annual report of the Fitchburg
Railroad Company, ending Sept. 30, 1887, a copy of which article
five is as follows : —
Article 5. The common stock sliall have no voting power until it
shall have received dividends for two consecutive years amounting to
not less than four per cent, per annum, excepting that it shall have the
right to vote on an equality with the preferred stock upon any question
of issuing more preferred or common stock, and also upon any question
of leasing any part of the consolidated road, or of hiring or uniting with
any other road
22 ATTORNEY-GENERAL'S REPORT. [Jan.
The voting power upon any railroad stocks held by the Com-
monwealth may properly be exercised by the Governor and Council,
or such committee as they may appoint ; and I understand that
this has been the usual custom.
Very respectfully, your obedient servant,
A. E. PiLLSBURY, Attorney-General.
[Director of Boston & Maine Railroad may be State director of
Fitchburg Railroad Company.]
Attornkt-Genebal's Department,
Boston, March 25, 1891.
To His Excellency the Governor.
In reply to your inquiry under date of March 24, I have to say
that in my opinion there is no legal incompatibility between the
offices of director of the Boston & Maine Railroad and State
director of the Fitchburg Railroad Company.
Very respectfully, your obedient servant,
A. E. PiLLSBURY, Attorney-General.
[Australian Ballot Law. Validity of vote in various cases. Powers
of House of Representatives.]
Attornet-Generai,'s Department,
Commonwealth Building, Boston, March 31, 1891.
To the Honorable the Speaker of the House of Bepresentatives.
In compliance with the request of the honorable House of Rep-
resentatives in its order of March -23, I return my opinion upon
the ten questions of law submitted in the order : —
First. A voter can legally "insert" or " fill in," in the space
left at the end of the list of candidates on the official ballot, the
name of the candidate for whom he would vote, by pasting thereon
a printed slip bearing the name of such candidate and making the
X mark in the space to the right of such name so pasted on the
official ballot, and such ballot should be counted for the candidate
whose printed name is thus pasted on. The blank space is as
appropriate to the reception of a pasted slip as of a written name,
and the language of the statute, to "insert" or "fill in" the
name, applies as well to the one case as to the other ; and it must
be presumed that the Legislature was aware of the general use of
" pasters," so called, and did not intend to forbid their use by
provisions which, taken as they read, clearly permit it.
1892.] PUBLIC DOCUMENT— No. 12. 23
Second. At a special election for Representative to the General
Court, where the official ballot bears only one name, and some
official ballots are cast bearing such name and none other, but
without any X or other mark on such ballot, the ballot so cast can
be counted for such candidate. In such a case, which would very
rarely arise, there is no " choice " of the voter, in the sense of the
statute, to be indicated by the statutory mark. " Choice" implies
a selection of one out of two or more names ; and if the ballot
bears but one name there is nothing upon which this right of
choice is to be exercised. Any other construction would deprive
the act of the voter in such a case of all significance or legal
effect, and this result is to be avoided if possible. But in my
opinion, as will appear below, this applies only to a ballot bearing
but a single name.
Third. At a special election for Representative to the General
Court, where ' the official ballot bore only the name of one candi-
date, and the printed name of another candidate had been pasted
in the blank space left at the end of the list of candidates, but
without an X mark or other mark in the space at the right of
either name (or elsewhere upon the ballot, as I understand the
question), such ballot cannot be counted for either candidate.
This involves the important and difficult question how far the
statutory requirement of the mark, as the means of designating
the voter's choice, is mandatory. The form of the provision
(Acts of 1889, chapter 413, section 23), that the voter "shall
prepare his ballot by marking in the appropriate margin or place
a cross (X) opposite the name of the candidate of his choice,"
does not settle the question ; as such language, though in form
mandatory, may be and often is construed as directory, and doubt-
less is to be so construed in various other provisions of this act.
But there are other general considerations which seem to determine
the matter. The great purpose of the act is, unquestionably, to
promote the purity of the ballot, by insuring a free and intelli-
gent expression of the voter's choice, in secret and on the spot ;
and the intent of the act, so far as it concerns the question now
under consideration, seems clearly to be that he shall indicate his
choice by the affirmative act of marking the ballot, under the cir-
cumstances of secrecy and security against interference or moles-
tation with which the act surrounds him at the polls ; and, while
it is a general rule of election law that statutes in derogation of
the right to vote are ordinarily to be construed liberally in favor
of the exercise of the right, it is also a settled rule that a statute
is to be construed, so far as may be, in the light and in the direc-
tion of its leading and obvious purposes. It is to be observed
24 ATTORNEY-GENERAL'S REPORT. [Jan.
also that the act imposes many other express restrictions upon the
right to vote which are obviously peremptory, and which, though
in derogation of the right, the Legislature must be supposed to
have considered essential to the main purposes of the act. There
is no direct judicial authority, so far as I am aware, upon the
question whether the requirement of the mark is mandatory ; but
in the cases in our House of Representatives, in the English cases
under the ballot act of 1872 the material provisions of which are
substantially like our own, in the Scotch aud Canadian cases,
and all others which have come to my notice, it seems to be
assumed that the requirement of a mark of some sort, sufficient
to indicate the voter's choice, is a peremptory requirement, though
there is considerable liberality of construction as to the position
aud character of the mark. An argument to the contrary may
perhaps be drawn from section 26, which contains the only express
prohibitions in the act against counting ballots, araon'g which it is
provided that, " if a voter marks more names than there are per-
sons to be elected to an office, or if for any reason it is impossible
to determine the voter's choice for any office to be filled, his ballot
shall not be counted for such office." It might be said that this
makes the possibility of determining the voter's choice, by any
means, a test of the validity of the vote ; but this construction
would open the door to many irregularities which the act seems
carefully designed and intended to prevent and to forbid ; and
under an act of this general character it does not necessarily
follow, aud it does not seem a reasonable construction, that every
vote shall be counted if it is possible by any method to determine
the voter's choice, for the single reason that the statute forbids a
vote to be counted if it is impossible to determine the voter's
choice ; especially as there are many other cases to which this
language may be applied consistently with the strict observance
of the requirement to mark the ballot. And the argument from
section 26 appears to me to be met by the provision of section 23,
that even when a voter inserts the name of a candidate which is
not printed upon the ballot, thereby, as it would seem, indicating
unmistakably his choice for that office, the X mark is still to be
made opposite the name so inserted. From this it is clear that
the act does not make or intend to make the possibility of deter-
mining the voter's choice the sole or sufficient test of the validity
of the vote. It appears to me a more reasonable construction,
keeping in view the general intent of the act, to hold that this
provision was intended to mean onl}' that the vote is not to be
counted if it is impossible to determine the voter's choice by the
means and in accordance witii the methods prescribed by the act
1892.] PUBLIC DOCUMENT — No. 12. 25
Fourth. At a special election for Representative to the General
Court, where the official ballot bears only one name, and some bal-
lots are cast bearing such name and none other, and there is no X
mark in the proper place but X marks are made in various other
places on the face of the ballot, such ballots so marked can be
counted for such candidate, for the reasons above stated in answer
to the second question ; as in such a case the person whose name
alone is on the ballot must be taken to be the voter's choice, irre-
spective of any mark. I understand this to cover also the second
branch of the fourth question. But of a marli on the back or out-
side of a ballot it is sufficient to say that such mark is not a mark
upon the ballot in the sense of the act, nor is it easy to see how
such a mark can possibly determine the voter's choice.
Fifth. At a special election for Representative to the General
Court, where the official ballot bears only one name, and the
printed name of another candidate is pasted, not in the space
at the end of the list of candidates, but in the space where the
name of the regularly nominated candidate is printed ou the offi-
cial ballot but not covering such name, and the X mark is placed
in the space to the right of both names, such ballots can be
counted for either candidate, according to the voter's clioice, if it is
possible to determine his choice ; and it is a settled rule of elec-
tion law that the writing or otherwise inserting or affixing a name
to or upon a ballot is competent evidence to show that the voter
intended to vote for the person whose name is so inserted or
affixed.
Sixth. At a special election for Representative to the General
Court, where the official ballot bears only one name, and the
printed name of another candidate is pasted, not in the space at
the end of the list of candidates, but over the name of the regu-
larly nominated candidate, with the X mark in the proper space,
such ballot can be counted for the candidate whose name is thus
affixed to such ballot, under the circumstances and for the reasons
above stated in the answers to the first and fifth questions.
• Seventh. At a special election for Representative to the General
Court, where the official ballot bore only the name of one candi-
date, and the printed name of another candidate is pasted, not in
the space at the end of the list of candidates, but in the space
wherein the name of the regularly nominated candidate appears,
and such name of such regularly nominated candidate has been
thereby partially obliterated, but the X mark is in the proper space,
such ballot can be counted for the candidate of the voter's choice,
if that can be determined, under the circumstances and for the
reasons last above stated.
26 ATTORNEY-GENERAL'S REPORT. [Jan.
Eighth. Tlie provision of law with reference to the marking of
the ballot by the voter is so far mandatory as to require some
mark upon the face of the ballot sufficient to make it possible to
determine the voter's choice among several candidates for the office
in question. This follows from the answer to the third question.
The provision as to "insertion" or "filling in" of the name of
any candidate whose name is not upon the official ballot for whom
the voter wishes to cast his ballot, in the blank space at the end
of the list of candidates, is not mandatory. The blank space is
provided for the convenience of the voter ; and there is no express
requirement of the act, and in my opinion there is none to be
derived from it by construction, making the use of the blank space
compulsory in such a case.
Ninth. The House of Representatives, or its election commit-
tee, subject to' the approval of the House, has power to determine
the evident intent of the voter from an inspection of the ballot,
where the strict letter of the law as to affixing or filling in the
name or marking the ballot has not been complied with ; as by
the constitution, chapter 1, section 3, article 10, the House of
Representatives " shall be the judge of the returns, elections and
qualifications of its own members ; " which provision is held to
give the House absolute power over the subject. But it may be
proper to add that the House of Representatives of Massachusetts
has been accustomed in such cases to follow the rules of law.
Tenth. The House of Representatives, or its election commit-
tee, subject to the approval of the House in the exercise of its
constitutional power, can connt ballots found in the ballot box
and marked " cancelled," when it appears from the marks npon
the ballots that they have been through the official registering
ballot box. But, if the question is intended to be whether such
ballots can lawfully be counted without resort to the arbitrary
powers of the House under the constitution, it calls for further
answer. I assume that the question refers only to ballots which
would be entitled to be counted except for the mark " cancelled."
There is no express prohibition in the act against counting a ballot
marked " cancelled," but this mark indicates some irregularity
about the ballot which should make it a subject of further inquiry.
It is a settled rule of election law that mistake or fraud of the
election officers shall not invalidate a vote lawfully and regularly
cast ; and this is a salutary rule, in the interest of the public no
less than of the voter. As it is difficidt to suppose that the mark
" cancelled" would be put upon the ballot by the voter himself,
and as the reasonable inference, therefore, is that, if the ballot
was regularly cast, the mark was placed upon it by the mistake
1892.] PUBLIC DOCUMENT — No. 12. 27
or fraud of some election officer, in which case it is entitled to be
counted, the case calls for further investigation into the regularity
of the ballot, and the circumstances under which the mark of can-
cellation was placed upon it.
Very respectfully, your obedient servant,
A. E. PiLLSBURY, Attorneii-General.
[Commutation of sentence for different terms, in different institu-
tions, under Public Statutes, chapter 22, section 20, may be on
the basis of the aggregate of the terms.]
Attorney-General's Department,
Commonwealth Building, Boston, April 17, 1891.
To His Excellency the Governor.
In compliance with the request of your Excellency and the
honorable Council for my opinion upon the questions submitted
in the vote of April 15, I have the honor to say that in my opinion
the sentence of a prisoner in a house of correction, who is, upon
the expiration of the sentence he is then serving, to be committed
to another institution to serve an additional sentence, can be com-
muted upon the basis of the aggregate of the sentences ; and that
the same is true of a sentence to a house of correction awarded by
the court to take effect on and after the expiration of a previous
sentence to another institution. The language of section 20 of
chapter 222 of the Public Statutes is broad enough to include the
case of sentences to different institutions ; and the reason of the
statute seems to apply with as much force to that case as to
the case of several sentences to the same institution ; and the his-
tory of the legislation on the subject indicates that the provision
was intended to apply to both.
Very respectfully, your obedient servant,
A. E. PiLLSBURY, Attorney-General.
[Hours of labor. Statute 1890, chapter 375, does not prohibit the
employment by the hour of "laborers, w^orkmen and me-
chanics," in State ii^stitutions for more than nine hours a day.
Who are " laborers, workmen and mechanics."]
Attorney-General's Department,
Boston, April 24, 1891.
To His Excellency the Governor.
In compliance with the request of your Excellenc}' and the hon-
orable Council in the vote of April 22, I return my opinion upon
the three questions therein submitted : —
28 ATTORNEY-GENERAL'S REPORT. [Jan.
First. Chapter 375 of the Acts of 1890 does not prohibit the
employment of labor in State institutions for more than nine hours
a day, if such labor is contracted for and paid for by the hour.
An examination of all the legislation upon this and kindred topics
leads to the conclusion that the purpose and effect of this statute
are to make nine hours' labor in a day by the persons therein
named a compliance with an ordinary contract for labor by. the
day or by longer periods. This conclusion is strengthened by the
fact that the statute contains no express prohibition against em-
ployment or service for more than nine hours a day under any cir-
cumstances, such as is found in other recent statutes relating to
the hours of labor ; and that it can have comparatively little appli-
cation to women or minors, to whom alone this prohibitory legisla-
tion has thus far been applied.
Second. Persons employed in instructing boys or girls, educa-
tionally or industrially, do not come under the act. They are
teachers, and a teacher is neither a laborer, workman nor mechanic, .
in the sense in which these words are used in the statute.
Third. Upon such inferences as I can draw from the form of
this question as to the actual employment and duties of the various
officers or employees referred to therein, it seems clear that the
statute does not apply to any of them, except possibly to the car-
penter, engineer, watchman and assistant farmer. They are all
styled "officers;" and if they are in fact officers of the institu-
tion, having powers or duties of an official character distinct from
ordinary employment or service, the statute does not apply to any
of them, as it clearly is intended to apply to labor rather than to
official service. But, if the carpenter is employed merely as a
working mechanic, the statute, in ray opinion, applies to him.
The engineer I take to be the man in charge of an engine, and not
a professional civil engineer. If the latter, the statute clearly
does not apply to him ; nor, in my opinion, does it apply to him
in the former capacit}' ; nor, for the same reasons, to the watch-
man. If the assistant farmer is, as I presume, the deputy of the
head farmer, having in his absence or by delegation from him or
otherwise, duties of supervision, oversight or control, and is not
merely a farm hand, the statute does not apply to him. The
words "laborers, workmen and mechanfcs" have acquired to a
certain extent in recent legislation a technical meaning ; and while
all persons engaged in any kind of labor may broadly be called
laborers, and all persons engaged in mechanical labor mechanics,
and while any mechanic is in this broad sense a workman and a
workman a laborer, it is clear that the words were used in the
1892.] PUBLIC DOCUMENT — No. 12.' 29
statute in a more restricted sense, to distinguish these particular
classes from each other and from other classes of labor ; and that
the statute should not be construed to apply to persons rendering
service which does not naturally fall within the description of the
words so used.
It may be added, also, that any other construction would be
likely to lead to practical difficulties in the ap[)lication of the
statute, which the Legislature probably did not intend.
Very respectfully, your obedient servant,
A. E. PiLLSBUKY, Attorney- General.
Attornbt-Gknebal's Dbpaktment,
Commonwealth Building, Boston, May 20, 1891.
To His Excellency the Governor.
In compliance with the request of your Excellency and the
honorable Council, I return my opinion upon the various questions
submitted to me, arising out of the claim of Theodore E. Davis
upon the Commonwealth for a compensation of two per centum of
the amount received by the Commonwealth from the United States
as repayment of the direct tax imposed upon Massachusetts by the
United States under the act of Congress of Aug. 5, 1861.
The first question submitted is whether, under chapter 39 of
the Resolves of 1888, and the contract in pursuance thereof made
between the Governor and Council and the claimant Feb. 5, 1890,
the auditor has a right to allow and the Governor and Council to
approve the payment of the claim except out of the amount
received by the Commonwealth from the United States.
The resolve provided that the " Governor and Council are hereby
authorized to employ the agent of the Commonwealth for the
prosecution of war claims against the United States, to prosecute
also the claim of the Commonwealth for a refund of the direct tax
paid under act of Congress, approved August 5, in the year 1861,"
and of certain other claims, " also to fix his compensation, which
shall be paid out of any amount received therefrom." Under the
authority of this resolve the Governor and Council, under date
of Feb. 5, 1890, passed the following order : —
" Ordered., That Theodore E. Davis of Washington, D. C, agent
of the Commonwealth for the prosecution of war claims against
the United States, be and he is hereby authorized to prosecute also
the claim of the Commonwealth for a refund of the direct tax.
30 ATTORNEY-GENERAL'S REPORT. [Jan.
paid under act of Congress approved Aug. 5, in the year 1861 ;
and that his compensation be two per centum of any amount he
may collect, which shall be paid out of the proceeds received
therefrom and paid into the treasury of the Commonwealth, the
same to be in full for compensation and expenses on account of
said claim. This order is adopted under the authority of chapter
39 of the Resolves of 1888."
As the resolve contemplates, and the contract provides, that
the compensation of the claimant shall be paid out of the proceeds
of the claim of the Commonwealth against the United States, and
as the Legislature has made no other provision for payment of his
compensation, I am of opinion that, in the present state of the
case, the auditor has no right to allow or the Governor and
Council to approve the payment except out of the amount received
by the Commonwealth from the United States.
The next inquiry is, "whether such payment is not expressly
forbidden by the trusts imposed by the act of Congress, and
accepted by the Commonwealth in its resolve of 1891 ; and
whether, therefore, if the claim of Davis is to be paid, it does not
require an appropriation or further action by the Legislature."
The act of Congress referred to is the act of March 2, 1891,
refunding to the States the amount of the direct tax ; which
provides in section 3 that "where the sums or any part thereof
credited to an}' State, Territory or the District of Columbia have
been collected by the United States from the citizens or inhabitants
thereof, or any other person, either directly or by sale of property,
such sums shall be held in trust by said State, Territory or the
District of Columbia for the benefit of those persons or inhabitants
from whom they were collected, or their legal representatives."
It further provides that the money shall not be paid to any State
until its Legislature shall have accepted by resolution " the sums
herein appropriated and the trusts imposed," in satisfaction of its
claims against the United States on account of the tax, " and shall
have authorized the Governor to receive said money for the use
and purposes aforesaid ; " and that " claims under the trust hereby
created shall be filed with the Governor of such State or Teri'itor}',
and the commissioners of the District of Columbia respectively,
within six years after the passage of this act ; and all claims not
so filed shall be forever barred, and the money attributable thereto
shall belong to such State, Territory or the District of Columbia,
respectively ; " and, further, that " no part of the money shall be
paid out by the Governor of any State or Territory, or any other
person, to any attorney or agent under any contract for services
now existing or heretofore made between the representative of any
1892.] PUBLIC DOCUMENT — No. 12. 31
State or Territory and any attorney or agent." Tlie Coniniou-
wealth received the payment under a resolve of April 8, 1891,
providing that " the Commonwealth further accepts all trusts
imposed upon it by the provisions of said act, and the Governor is
hereby authorized to receive the money for the use and purposes
aforesaid."
The direct tax was imposed by the act of Congress of Aug.
5, 1861, upon real estate in the several States, for the purpose
of raising the sum of $20,000,000 for the use of the government ;
and the act provided for a system of assessment and collection of
the tax by officers of the United States, for which purpose each
State was to be divided into assessment and collection districts,
and the real estates therein were to be valued and the tax appor-
tioned, assessed, collected and paid into the treasury of the United
States directly by officers of the United States to be appointed
under the act ; which apportioned to Massachusetts as its share of
the tax the sum of $824,581.33.
But the act never had this operation in Massachusetts. By
chapter 98 of the Resolves of 1862, the Legislature appropriated
out of the treasury the entire amount due from Massachusetts
under the act of Congress, and paid it directly to the United States
in commutation of the tax imposed upon the real estate in the
Commonwealth ; so that the individual owners of real estate in
Massachusetts were never assessed the tax under the act, and
never had occasion to pay and never paid it.
It is clear, therefore, that the trust imposed upon the States by
the act of Congress of March 2, 1891, to hold the money in trust
for the citizens or inhabitants who paid the tax, and their repre-
sentatives, for the term of six years, during which they might file
with the Governor their respective claims therefor, does not
attach to this fund. The Commonwealth, having paid the entire
tax out of the public treasurj^, received the repayment and holds
it to its own use. The act of Congress expressly provides that
an}^ part of the fund not absorbed by claims of citizens shall
belong to the State. And it seems that the Legislature entertains
this view of the subject, as, by chapter 335 of the Acts of 1890,
the Legislature appropriated to the school fund any moneys there-
after to be received from the United States "the disposition of
which is not otherwise provided for ; " and, while this act was
passed in advance and of course without knowledge of the terms
of the act of Congress, March 2, 1891, the Legislature has taken
no action toward any other disposition of the money ; and it is
not suggested in any quarter, so far as I am aware, that any other
disposition is necessary, or that there is any doubt of the right of
32 ATTORNEY-GENERAL'S REPORT. [Jau.
the Commoawealth to allow it to Staud appropriated to tlie school
fund, as provided by the act of ISiJU.
It remains to consider whether payment of the claim is for-
bidden by the provision of the act of Congress above quoted, that
no part of the money shall be paid to any attorney or agent. In
considering this, it is to be observed in the outset that " the use
and purposes aforesaid," for which the act of Congress provided
that the money shall be paid, and for which the Governor shall
receive it and has received it under the act and our resolve of 1891,
are only the reimbursement of the direct tax to the States, and
the satisfaction of all claims upon the government on account of
it ; and, therefore, that the payment of any part of it to an attor-
ney or agent, or any other disposition which the Commonwealth
may make of it consistent with the satisfaction of its claims and
the claims of its citizens upon the government, is entirely con-
sistent with the express uses to which the United States paid and
the Commonwealth received the money.
It is, to say the least, doubtful whether this provision is one of
" the trusts imposed " by the act under which, the Commonwealth
accepted the payment ; as this expression naturally refers to the
express trusts imposed upon the fund for the benefit of the citizens
and inhabitants who paid the tax, as above stated. The provision
forbidding payment to any attorney or agent is not, in form, a
trust, nor appropriate to create a trust ; and, if Congress is to be
taken as having meant to include this provision as one of " the
trusts imposed," it may well be for the single reason that, as the
fund was repaid for the benefit of the citizens who originally paid
it, and as their claims might absorb the entire fund, no part of
it should be devoted to any other purpose unless and until the
claims of the citizens were first fully satisfied. But, inasmuch
as there are no citizens of Massachusetts who have any clann upon
it, and as, therefore, there is no trust in the fund for their benefit,
as pointed out above,, this purpose of the provision forbidding-
payment to any attorney or agent is as fully satisfied as the pur-
pose of the express trust imposed upon the fund for the benefit
of the citizens. I do not think the act of Congress should be con-
strued to interfere with the disposition of the fund in the posses-
sion of the States further than is reasonably necessary to the
purpose for which it was repaid to them ; and, whetlier or not
the provision against payment to any attorney or agent may
be deemed to lay any moral obligation upon the Commonwealth,
which is not for me to determine, it has, in my opinion, no legal
effect, under the circumstances of this case, to forbid or prevent
any disposition of any part of the fund which the Commonwealth
1892.] PUBLIC DOCUMENT — No. 12. 33
sees fit to make. I am informed that other States have already
put this coustruetion upon it, and have paid their agents out of
the fund without doubt or question. And, as the resolve of 1888,
under which the contract with the claimant was made, and the
contract itself, expressly provide that his compensation shall be
paid out of the proceeds of the collection ; and as the Legislature,
in appropriating the money to the school fund by chapter 335 of
189U, expressly reserved any amounts "otherwise provided for,"
I am of opinion that the payment of the claim does not require
any further appropriation or action by the Legislature.
It becomes necessary, therefore, to inquire into the validity
of the contract with the claimant and the legality of his claim,
which is the subject of the other inquiry submitted by your
Excellency and the Council. It is suggested that the contract is or
may be void for champerty. It is by no means certain that the
rule against champerty can be or ought to be applied to the con-
tract of a sovereign State, which clearly is not witljin the mischief
against which the rule is directed. But I do not deem it necessary
to consider this question, as in my opinion the rule does not apply
to a contract for the prosecution of such a demand as that of the
Commonwealth against the United States in this case. The
offences of champerty and the maintenance of suits are of ancient
origin, and are correlative to each other ; and the principle out of
which they arise is that it is contrary to public policy, as tending
to speculation and to vexation and oppression of debtors, that
litigation should be maintained or promoted for a share of the
proceeds, by those who have no other interest in it. But this
relates to suits in court ; and an examination of the multitude of
reported English and American cases on the subject shows that
the doctrine has been applied only to judicial litigation, and dis-
closes no case in which it has been applied to the prosecution of a
claim of such character as that which was the subject of this con-
tract. Here there was no suit, and no prospect or possibility of a
suit. The tax was laid and collected by the United States in the
exercise of its sovereign power, and no legal claim resulted to any
person or to any state for the repayment of it. The distinction,
between claims which are or may be the subject of litigation and.
other claims, is well recognized in the champerty cases ; and it
is held that claims which are not and are not to be the subject of
litigation, or of suit in court, are not within the rule against cham-
perty, and that contracts for the prosecution of such claims are not ,
open to this objection.
The further question is raised whether the contract between the
Commonwealth and the claimant may not be unlawful and void, or
34 ATTORNEY-GENERAL'S REPORT. [Jan.
his claim invalid, within the doctrine of Tristi;. Child, 21 Wallace,
441, as contemplating or involving services in the nature of lobby-
ing. It is a novel suggestion that the agent and representative of
a sovereign State, appointed by her highest executive authority,
in pursuance of an act of the Legislature passed for this sole pur-
pose, to look after her interests before the Congress of the United
States, is under any circumstances to be regarded as a lobbyist.
But, without considering whether he can be so regarded, or whether
tliere is any warrant for the imputation which the suggestion puts
upon the Legislature which authorized this contract, or the Gov-
ernor and Council who made it, it will be sufficient to state the law
applicable to the contract here in question. It is recognized in all
intelligent discussion of the subject, in the courts and elsewhere,
that the mischief involved in the operations of a legislative lobby
is the bringing to bear upon members of the Legislature of
personal, secret, sinister or corrupt influences or inducements, to
control or affect their official conduct. This is against public
policy, and a contract or claim for such services cannot be
enforced at law. It need not be said that this rule rests on the
highest considerations of the public welfare, for the protection of
the public against corruption of the sources of law ; and it is to be
maintained and enforced. But it is equally well recognized and
settled that the proper prosecution of a claim or other legitimate
interest before a legislative body is neither improper nor unlawful.
It requires but little power of discrimination to distinguish between
the open and proper communication of legitimate information
respecting subjects of legislation, by those whose character and
relation to the subject are fully disclosed, which must often be
essential to intelligent action, and the influencing of legislation by
personal appeal on personal grounds, or by deceit, or by other
secret, sinister or corrupt influences. The judicial decisions that
go furthest in support of the rule that a contract for lobbying
services is unlawful and cannot be enforced, including the cases of
Trist V. Child, and Frost v. Belmont, 6 Allen, 152, expressly
recognize the propriety and legality of the proper prosecution of
claims before Congress or other legislative bodies, and the validity
of a contract therefor ; and the result of the cases seems to be
that the test of the validity of the contract and the legality of the
service, in any case, is in the methods pursued or contracted for.
The contract of the Commonwealth with the claimant, who is
«aid to be a member of the bar, and who was then and had been
for several years the accredited agent of the Commonwealth at
Washington for the prosecution of its claims against the United
States, was " to prosecute also the claim of the Commonwealth
1892.] PUBLIC DOCUMENT — No. 12. 35
for a refund of the direct tax paid under act of Congress approved
August 5, in the year 1801." It cannot be said that the prosecu-
tion of this claim by proper and legitimate means was unlawful,
and therefore it cannot be said that the contract, upon its face, is
invalid. If the claimant exceeded or departed from his contract,
and resorted, in the prosecution of the claim, to any of the
methods or practices justly stigmatized by the law as contrary to
public policy and illegal, he cannot enforce his claim to compen-
sation. But the questions of fact which may affect the validity of
the claim are not for me to consider, nor do the papers submitted
to me by your Excellency appear to furnish sufflcient materials for
a correct determination of them.
Very respectfully, your obedient servant,
A. E. PiLLSBURY, Attorney-General.
[Insurance Statute of 1891, chapter 195, does not require a life
insurance company to increase its capital on engaging in acci-
dent insurance, if its capital equals or exceeds the sum of the
capitals required in each business.]
Attorney-General's Department,
Boston, May 25, 1891.
Hon. Geohge S. Meriull, Insurance Commissioner.
Sir: — I reply to your inquiry as to the effect of chapter
195 of the Acts of 1891 upon the application of the ^tna Insur-
ance Company for authority to engage in the business of accident
insurance, at more length than would otherwise be necessary, in
view of some expressions of two of my predecessors upon a similar,
though not the same, question.
The act of 1891, so far as material to the present case, re-enacts
section 80 of chapter 214 of 1887, forbidding a foreign insurance
company to do more than one kind of business within the Common-
wealth, and chapter 3.56 of the Acts of 1889, providing that a
foreign or domestic accident insurance company may take up
employers' liability insurance "by increasing its capital to the
amount now required by law as the capital of such employers'
liability insurance company ; " and adds a new provision, that any
foreign or domestic company doing only life insurance within the
Commonwealth may take up accident insurance " by increasing its
capital to the amount now required of two separate companies
engaged in either one of these two classes of business ; " and
re-enacts the concluding provision of the act of 1889, that " no
company now or hereafter admitted shall be allowed to transact
3() ATTORXEY-GEXERAL'S REPORT. [Jan.
any two of such classes of business, unless it possesses an aggre-
gate capital equal to that required of two separate companies
engaged in either of these classes of business."
The i)resent question is, whether a life company, having at the
time of its application a capital equal to or exceeding the sum of
the two capitals required in its original business, and in the busi-
ness of accident insurance wiiich it desires to add, respectively,
must actually increase its capital upon taking up the new business,
or whether the law is satisfied by its original possession of a capital
equal to the sum of the two separate capitals, so that no actual
increase is necessary.
Taking the provision for increase of capital literally, it cannot
be intelligibly applied to the case of a company having at the time
of its application a capital equal to or exceeding the sum of the
two capitals required in the two classes of business respectively.
The requirement is that the capital shall be increased " to the
amount now required of two separate companies engaged in either
one of these two classes of business ; " and this requirement can-
not be applied to the company in question, as it needs no increase
of its capital to carry it up " to the amount now required of two
separate companies," etc., and any increase of its capital would
necessarily carry it beyond that amount. Another difficulty is
immediately encountered in undertaking to apply the requirement
to such a company, as the statute gives no measure of the required
increase of capital, except that it shall be " to the amount now
required of two separate companies," etc., which plainly calls for
no increase at all by a company having already a capital equal to the
sum of the two separate capitals. If it must necessarily increase
its capital at all, there is no means of knowing w^hat amount should
be added. If it were possible to read the requirement thus, " by
increasing its capital hy the amount now required of the two sep-
arate companies," etc., as in my opinion it is not, but which would
have to be done in order to get at any measure of the required
increase in such a case, we should be involved in the difficulty,
which amounts to an absurdity, of requiring a company having at
the time of its application a sufficient capital for the one class of
business, to add on taking up the other class the amount required
of both. That is to say, a life company having a capital of
$200,000, upon taking up accident insurance, for which the
requirement is $200,000, would have to add $400,000, making it
necessary for such a company to have a capital of $600,000, to do
the business which two separate companies can do upon an aggre-
gate capital of $400,000. This is not a reasonable construction,
and is not to be adopted if another reasonable construction is
1892.] PUBLIC DOCUMENT — No. 12. 37
open ; and the concluding provision of the Acts of 1889 and 1891
clearly indicates the purpose of the Legislature to require only
that a company transacting the two classes of business shall
possess a capital equivalent to the sum of the two capitals required
for each respectively. This concluding provision of the two acts
is designed to require the companies to keep up permanently the
amount of capital which they are required by the previous provi-
sions of the two acts to have, or to acquire, on taking up the addi-
tional business ; and it seems sufficiently clear, from this provision
and from the considerations suggested above, that the purpose of
the Legislature was, and the effect of the act is, only to reqtiire
the possession of the aggregate capital at the time of beginning
and throughout the continuance of the new business, and not to
require an actual increase by a company possessing a capital
equivalent to the two capitals at the time of its application. The
other construction would give the statute a very unequal opera-
tion, as illustrated above; and it maybe still further illustrated
by the case of the present applicant, whose capital is $1,250,000,
but which would be required, if it must actually increase its capi-
tal, to have a permanent capital in excess of that amount, as a
condition of doing the business which other companies may do
upon a capital of 3400,000.
The only suggestion which has been made or has occurred to
me which even appears to be inconsistent with this construction, is
that the Legislature may have considered that a company engaged
iu one kind of business, with the capital required for that busi-
ness, may have or is liable to have outstanding as many risks of
that class as ought to be carried against that amount of capital,
and so must be taken to have required an actual addition to the
capital upon taking up a new class of business. But this sugges-
tion appears to me to be fully met by the fact that there is no
necessary legal relation or proportion between the amount of capi-
tal and the amount of risks, and that all insurance companies,
doing whatsoever business, are required to have and to keep up a
reserve or guaranty fund, whatever it may be called, which must
bear a definite proportion to the risks, and which must be increased
as the risks increase, and which is really the fund relied on by
the law to meet liabilities.
You have called my attention to the fact that in 1879 Attorney-
General Marstou ruled that, under chapter 182 of the Acts of
1873, a fire company desiring to add marine insurance must actu-
ally increase its capital. I must take that ruling as made only in
view of the particular case then in question, the facts of which
are not disclosed ; as Mr. Marston says in the same opinion that
38 ATTOENEY-GENERAL'S REPORT. [Jan.
the requirement of the act of 1873 does not apply to companies
whose capital was originally fixed at $300,000 or more, which was
the amoun't of the increased capital required by that act ; and this
statement indicates that he would have taken the same view of
the statute now in question as that which 1 have stated above. If
the opinion of Attorney-General Waterman, of Jan. 29, 1890, is
to be taken as indicating a contrary view, which is not clear, I
cannot follow it.
All the reasons of the statute appear to be satisfied by constru-
ing it to require only that a company doing the two kinds of busi-
ness., shall possess an aggregate capital equal to the sum of the
two capitals required by the two kinds of business respectivel}' ;
and, as this construction is more readily open upon the terms of
the statute itself, and furnishes an intelligible and uniform rule,
aud as any other would lead to great practical difficulties and ine-
qualities of operation, I am of opinion that it is to be so construed,
and that the company whose application is now in question is not
required to increase its capital in order to engage in the business
of accident insurance.
The history of the legislation on the subject confirms this con-
clusion. The earlier statute of 1873 was undoubtedly drawn in
contemplation of the fact that, by chapter 375 of 1872, to which
it referred, the required capital of a fire company was less than
the required capital of a marine company ; and it was, therefore,
natural to use the expression " shall have increased its capital" in
providing in 1873 for the addition of marine business to fire busi-
ness, and this expression has probably been borrowed from the
earlier statute in the Acts of 1889 and 1891, without much thought
of its necessity or appropriateness to the purpose in view. But it
is clear that the act of 1873 intended to require nothing more
than that a company doing marine business should possess the
larger capital required for that business as a condition of entering
upon it, whether it was doing also a fire business or not, as the
act of 1872 permitted any company to do both kinds of business,
if it possessed the larger capital necessary to marine business.
Very respectfully, your obedient servant,
A. E. PiLLSBURY, Attorney- General.
1892.] PUBLIC DOCUMENT — No. 12. 39
[Municipal indebtedness act, Public Statutes, chapter 29. Requi-
sites to validity of loan.]
Attokney-General's Department,
Boston, July 21, 1891.
Hon. George A. Marden, Treasurer.
Sir : — Upon your request to be advised upon the appli-
cation of the city of Holyoke for a loan, it does not appear
to me that you have such information as you need. The munici-
pal indebtedness act (Public Statutes, chapter 29) prohibits the
incurring of any debts by cities and towns " except in the manner
of voting and within the limits as to amount and time of payment "
therein prescribed. Section 8 limits the time within which certain
municipal debts shall be payable, and I understand that this case
is within the ten-year class. It is reasonably evident, from the
second clause of section 14, from section 23, and from other pro-
visions of the act, that the limitation is intended to run from the
original contraction of the debt, and not to be extended by
renewal. The copy of the order sent you by the treasurer does
not show that it was adopted by " two-thirds of all the members of
each branch," or that it was approved by the mayor, as required
by section 7 ; and, while it shows upon its face that the new notes
are or may be issued in renewal of former notes, it does not show
for what purposes or in what amounts or at what times the
original indebtedness was incurred. And it does not seem to me,
for several reasons, that the letter of the treasurer is sufficient to
meet this difficulty.
It is provided by section 16 that "the restrictions of the pre-
ceding sections shall not exempt a city or town from liability to
pay debts contracted for purposes for which it may lawfully
expend money." But the debt now sought to be contracted is a
debt for borrowed money ; and, under the very strict construc-
tion put upon the act by the supreme court in the case of Agawam
Bank v. South Hadley, 128 Mass. 503, it seems to be necessary to
the validity of such a debt that all the requisites to the borrowing
power established by the act be strictly complied with ; and this
view seems to be affirmed in the later case of Smith v. Dedham,
144 Mass., page 179. If it is not absolutely necessary, it is cer-
tainly desirable, that it shall appear on the face of the order that
they have been complied with ; and it is unsafe to make a loan
under circumstances which indicate, as in this case, that some of
the requirements may not have been fulfilled.
If the new notes are renewals of former loans, it is not clear
that they are within the prescribed limit of time. If they are new
40 ATTOENEY-GENEEAL'S EEPOET. [Jan.
debts, as iudicated by Abbott v. North Andover, 145 Mass. 484,
all the conditions of the borrowing power must be strictly fulfilled,
to make the lender safe under the doctrine of the court. And it
is legally possible that they may be subject to the requirements
applicable to both.
It is hardly necessary to say that these suggestions do not imply
any doubt of the good faith of the city in this case, or any doubt
that the city will pay any money which it may borrow from the
Commonwealth ; but, proceeding as you must under the law with-
out reference to any such considerations, it does not seem to me
that you have the information which you ought to require before
making the loan. ^
Very respectfully, your obedient servant,
A. E. PiLLSBURY, Attorney- General.
[Insurance of a single hazard not reduced by re-insurance. Stat-
utes 1887, chapter 214, section 20.1
Attornet-Genehal's Department,
Commonwealth Building, Boston, July 29, 1891.
Hon. Gkoijge S. Mekkill, Insurance Commissioner.
Sir: — Upon the question arising, under section 20 of the
insurance act of 1887, whether the prohibition against insuring in
a single hazard a larger sum than one-tenth of the net assets of a
company is met by reinsuring such hazard so far as to bring the
net amount at risk within the prescribed limit, I have heard, at
their request, the representatives of the company in whose case
it arises. It is urged that the general understanding and practice
of insurers are that the amount may be so reduced ; that the
insurance department treats reinsurance as reducing the amount
of insurance of any particular company for the purpose of taxa-
tion ; and also that, in the similar prohibition in section oG, the
Legislature expressly recognizes and permits reinsurance as reduc-
ing the amount of insurance to the prescribed limit. But it is
competent to permit this reduction for one purpose or for various
purposes, while refusing or omitting to allow it for other purposes ;
and it may be said of section 56, with perhaps equal force, that,
as the Legislature has allowed reinsurance to reduce the amount
of insurance for the purposes of that section, but has not expressly
extended the same privilege to the case provided for by section
20, it has thereby iudicated its purpose not to permit it in the
latter case ; and it is to be obseived also that, in the last expres-
18i)2.] PUBLIC DOCUMENT — No. 12. 41
sion of the Legislature upon the subject, in chaptei- 368 of the
Acts of 1891, the Legislature, while dealing with the subject of
reinsurance, has re-enacted the prohibition of section 20 without
any express qualification.
The history of this provision sheds some light upon its con-
struction. From the act of 1817, chapter 120, in which it seems
to have originated, through several re-enactments down to the
insurance act of 1887, the prohibition was that a company
should " never take" or "hold" (the latter word also appearing
in the act of 1856, chapter 252, section 15) more than the limited
amount in one risk. This is somewhat stronger against the claim
of reduction by reinsurance than the language in which the pro-
vision was re-enacted in the act of 1887; and in view of section
112 of that act, and as there is no apparent reason to suppose
that any modification or change of legal effect was intended in
adopting the word "insure" in the re-enactment in place of the
words "take " or " hold," I do not think it is to be inferred that
any such change was intended, but that the re-enactment is to be
taken as a continuation of the original prohibition. In view of
these considerations, it is open to construe the clause of section
20 literally, as an absolute prohibition against insuring more than
the limited amount in one hazard, regardless of reinsurance. This
is the safer construction, for the security both of the public and
the insurance companies ; and it conforms to the ordinary rule of
construing a grant of corporate power strictly as against the
grantee. Another reason of some weight for following it now is,
as I understand, that, in the only cases hitherto known to your
department of violation of this provision so construed, a fine has
been imposed and paid ; so that a contrary construction would
reverse the rule of the department, so far as any rule is estab-
lished, and lead to inequality of treatment and apparent injustice,
as between the various companies involved.
Very respectfully, your obedient servant,
A. E. PiLLSBURY, Attorney-General.
[Bertillon system of measurement of prisoners, Statutes 1890, chap-
ter 316, applies to United States prisoners in the Massachusetts
Reformatory.]
Attorney-Genbral'8 Department,
Boston, Aug. 18, 1S91.
To His EyceUi-ncy the Gov-rnor.
In reply to your request for my opinion upon the question
whether United States prisoners at the Massachusetts Reformatory
42 ATTORNEY-GENERAL'S REPORT. [Jan.
are included in the requirement for measurement by the Bertillon
system, under chapter 316 of the Acts of 1890, I have the honor
to say that, as the Legislature undoubtedly has power to apply
the requirement to such prisoners, and as they are not expressly
excepted from the operation of the act, and as I fjud nothing in it
to indicate any purpose of the Legislature that they should be
excepted, it is, in my opinion, to be applied to them. This con-
clusion is strengthened by the fact that, in other statutes bearing
upon the confinement of United States prisoners in our prisons,
they have sometimes been made the subject of express exception,
and the absence of any such expression in this case has some ten-
dency to indicate the purpose of the Legislature to make no such
exception.
Very respectfully, your obedient servant,
A. E. PiLLSBURY, Attorney-General.
[Military aid, under Statutes 1889, chapter 279, may be paid to a
person who served in and was honorably discharged from a
Massachusetts regiment dtiring the war, notwithstanding he
had previously been dishonorably discharged from a Rhode
Island regiment]
Attorney-General's Department,
IJosTON, Aug. 18, 1891.
Hon. William D. T. Tkekry, Auditor.
Sir : — In reply to your inquiry as to the legality of the
payment of military aid to a man enlisted in Rhode Island in
tlie war of the rebellion and dishonorably discharged, and there-
after re-enlisted in Massachusetts and honorably discharged, I
have to say that, as the re-enlistment was not unlawful, and was
regarded by the War Department as permissible, as I am informed,
an honorable discharge from the service under such re-enlistment
in my opinion satisfies the requirement of the third paragraph of
section 2 of chapter 279 of the Acts of 1889 ; and the fact that
the applicant was dishonorably discharged from the Rhode Island
regiment does not disqualify him to receive aid under the statute.
Very respectfully, your obedient servant,
A. E. PiLLSBUuY, Attorney-General.
1892.1 PUBLIC DOCUMENT — No. 12. 43
[Lagacy tax act, Statutes 1891, chapter 425, applies only to cases
arising after it takes effect.]
Attorney-General's Department,
Boston, Sept. 2, 1891.
Hon. Gi:oiiGE A. Mvuhex, Treasurer.
Sir : — lu reply to your request to be advised upon the question
wlietber chapter 425 of the Acts of 1891, imposing a tax on col-
lateral legacies and successions, applies to cases pending at the
time of its taking effect, I have to say that, in my opinion, it is
not to be applied in such cases, but only to eases in which the
death of the decedent occurs thereafter. The language of the act
appears to be capable of either construction, and there seems to
have been no judicial determination of the question under the
English statutes or those of other States. But, in view of some
expressions which indicate the understanding, if not the actual
purpose, of the Legislature, that it was not to apply to pending
cases, and in view of the practical inconvenience of applying it to
such cases, which application would raise numerous doubtful
questions, and would be likely to lead to inequality and inequity
among different persons or classes of persons taking from the
same estate, I am led to the conclusion above stated, — that the
act should be construed to begin with cases arising after the time
of its taking effect.
Very respectfully, your obedient servant,
A. E. PiLLSBURY, Attorney- General.
[Status of enlisted man in the militia not changed by his election to
a commissioned oflace until he is actually commissioned.]
Attorney-General's Department,
Boston, Sept. 2, 1891.
Major-Geiieral Samuel Daltox, Adjutant-General.
8iR : — In reply to your inquiry under date of the 1st instant,
concerning the status of an enlisted member of the militia
who is elected a commissioned officer, during the interval be-
tween such election and his assignment to duty, and whether
such officer-elect during such interval is liable to duty and eligible
to participate in regimental competitions and continues to be a
member of his company, I have to say that, in my opinion, the
status of an enlisted man is not changed merely by his election to
a commissioned office, but that until be is actually commissioned
in pursuance of such election, and no longer, he continues liable
to the duties and entitled to the privileges of his original position.
44 ATTORNEY-GENERAL'S REPORT. [Jan.
It seems extraordinary, unless there are sufficient military or
other reasons for it, that the statute sliould require an elected
officer to be commissioned before his qualifications for the office
are ascertained, and before it can be known whether he can ever
lawfully exercise it ; and this apparent anomaly renders the
statute more difficult of construction than it might otherwise be ;
but, in my opinion, the proper construction under the circum-
stances is that above stated.
Very respectfully, your obedient servant,
A. E. PiLLSBURY, Attorney- General.
[Commander-in-Chief not required to take further action in the case
of an officer discharged from the militia under Statutes 1887,
chapter 411, section 64. Constitutionality of that Statute.]
Attorney-General's Departmext,
Boston, Oct. 12, 1891.
To His Excellency the. Gonrnor.
In reply to your request for my opinion whether the law
requires any further action on your part in the case of Capt. S.
Thomas Kirk, and upon the constitutional question said to be
raised in Captain Kirk's letter to your Excellency, I have the
honor to say that, in my opinion, the law does not require any
further action in the case on the part of the commander-in-chief,
unless he chooses in his discretion to make further inquiry ; and
that there is, in my opinion, no doubt of the power of the Legis-
lature, under article 4 of the amendments to the constitution, to
enact the Statute of 1887, chapter 411, section 64, under which
he appears to have been discharged. As to the regularity or
validity in other respects of the proceedings which led to his dis-
charge, I can say nothing further than that, upon the papers
transmitted to me by your Excellency, I see no reason to doubt
their validity.
Very respectfully, your obedient servant,
A. E. PiLLSBURY, Attorney -General.
[Legacy tax act, Statutes 1891, chapter 425. Executor's duty to col-
lect taxes on specific bequests. Tax on specific property be-
' queathed to two or more in common to be paid by each in
proportion to his interest. Duty of State Treasurer.]
Attorney-General's Department,
Boston, Oct. 29, 1891.
Hon. George A. Harden, Treasurer.
Sir : — In reply to your inquiries as to your duly under tlie leg-
acy tax act, chapter 425 of 1891, I have to say tliat, in my opiu-
1892.] PUBLIC DOCUMENT — No. 12. 45
ion, it is plain from section 5 that in the case of articles of personal
property specifically devised, it is the duty of the administrator,
executor or trustee to collect the tax, based on the appraisal pro-
vided for by section 9 or section 13, before delivering the article
to the legatee ; and that, in the case of such a specific legacy in
common to two or more persons, the tax is to be collected from
each in proportion to their respective interests. I see no reason
why this rule should not apply to every such case, and why you
should not so inform any person having occasion to ask.
As to your duty to make special inquiry, etc., in my opinion,
the statute intends that sufficient information as to estates subject
to the tax, or the existence of such estates, will reach you through
the provisions of sections 9, 10 and 11, and the other provisions
of the act ; and that it does not require you to institute inquiry as
to the existence of such estates. The Legislature seems to have
proceeded upon the assumption that all deceased estates pass
through the probate courts, and to have assumed that sufficient
information for your purposes will reach you through that channel
under the provisions of the act. If any other case should come
to your knowledge, you have power under section 15 to apply for
administration ; and in any case in which the original appraisal of
the property is not satisfactory to you, you have power to secure
a special appraisal under section 13 ; but, in the absence of any-
thing tending to show that the original appraisal is erroneous, you
are, in my opinion, justified in resting upon it.
Very respectfully, your obedient servant,
A. E. PiLLSBURY, Attorney-General.
[Insurance Commissioner not required, to try title of oflBcers of
endow^ment orders.]
Attorney-General's Department,
Boston, Oct. 30, 1891.
Hon. George S. Merrill, Insurance Commissioner.
Sir : — In reply to your inquiries under date of 24th inst., as to
the title of the officers of the Mutual One Year Benefit Order, and
under date of 27th inst., as to the title of the officers of the Order
of the Fraternal Circle, I have to say that, in the former case,
upon the statement presented, I see no reason to doubt that the
officers are properly qualified, and in the latter case, that the indi-
cations are to the contrary ; but that this case will probably be so
46 ATTORNEY-GENERAL'S REPORT. [Jan.
disposed of as to give you no further trouble, under a suggestion
made by me to the counsel of the corporation, who has called upon
me in reference to this question.
The facts submitted by you are insufficient to determine the
validity of the title of the officers in either case, a correct deter-
mination of which might involve a critical examination of all the
proceedings of the respective organizations from their beginning ;
and, in my opinion, the statute does not require you to determine
the legal title of these officers. It would in many cases be prac-
tically impossible for you to do it with the means at your command.
If their title is in question, and is so doubtful that you do not feel
justified in endorsing a requisition, you are justified in declining
to endorse it ; leaving the parties in interest to proceed against
you or to have the title of the officers tried and settled in court,
where alone it can be conclusively determined, with full protec-
tion in the mean time to all the interests involved.
Very respectfully, your obedient servant,
A. E. PiLLSBURY, Attorney- General.
[Legacy tax act, Statutes 1891, chapter 425, does not apply to estate
of testator who died before it took effect, though his will was
not proved until after it took effect.]
Attoknet-General's Department,
Boston, Nov. 14, 18'J1.
Hon. George A. Harden, Treasurer.
Sir : — In reply to your inquiry whether chapter 425 of the Acts
of 1891, imposing a tax upon collateral legacies and successions,
applies to a case in wliich the testator died before tlie act took
effect, though his will was not admitted to probate until after it
took effect, I have to say that such a case is within my former
opinion, and the statute does not apply to it. A will takes effect
in law as of the time of the testator's death, and such a case as
you describe was pending, in contemplation of law, at the time
when the statute took effect; and therefore, in my opinion, as
formerly given you, is not affected by it.
Very respectfully, your obedient servant,
A. E. PiLLSBURY, Attorney- General.
1892.] PUBLIC DOCUMENT — No. 12. 47
[Deposit of securities with State treasurer under chapter 341 of
1890. Treasurer not required to receive securities of doubtful
or questionable value or character.]
Attorney-General's Department,
Boston, Nov. 30, 1891.
Hon. George A. Makden, Treasurer.
Sir: — In reply to your inquiry of this date, relating to certain
mortgages assigned to you in trust under chapter 341 of the Acts
of 1890, I have to say that, in ray opinion, you are not required
to accept under that statute a mortgage given wholly or in part
to secure future advances. While such a mortgage is a valid
security for the sums actually advanced in the absence of any
intervening lien or incumbrance, it is not valid, as against any
such intervening lien or incumbrance, as to any advances there-
after made. Under such a mortgage, therefore, the amount for
which it is actually a valid and enforceable security is always an
open question, and this is a question on which you might fre-
quently be unable to ascertain the facts, and which you ought not
to be required, and, in my opinion, are not required, to determine.
The fact that the date of a mortgage note does not correspond
with the date of the mortgage, does not invalidate the security,
if the note actually represents the debt which the mortgage was
given to secure; but such a discrepancy, as in the other case,
raises a question of fact which you would have to determine
before you could safely accept the mortgage, and which might
be a subject of dispute thereafter ; and, in my opinion, you are
not required to accept a note and mortgage between which such
a discrepancy appears.
There is, indeed, room for doubt whether the Legislature, with
the exceeding liberality which has characterized its action on the
subject of this statute, has not authorized these corporations to
unload upon you anything which they claim to be within the
description of the statute as " securities in which insurance com-
panies are allowed by law to invest their capital ; " and whether
it has authorized you to make any examination of the securities,
or given you any power to determine what shall be received. But
the statute expressly gives you power to determine the " value
and character " of any of the securities which may be exchanged
or offered in excliange ; and, in view of this provision, I think it
reasonable to construe the statute as not requiring you to accept
originally any security, the value and character of which may be
open to questions which you might find it difficult or impossible to
determine.
Very respectfully, your obedient servant,
A. E. PiLLSiiuuY, AUorney General.
48 ATTORNEY-GENERAL'S REPORT. [Jan.
[Unauthorized life insurance. (Advertisement by a newspaper to
pay i?250 to the next of kin of any person dying by accident
with a copy of the paper on his person.)]
Attorney-General's Department,
Boston, L)ec. 2, 1891.
Hon Gkorge S. Meuiull, Insurance Commissioner.
Sir : — I see no reason to doubt that a contract made under and
according to the terms of the advertisement transmitted to me in
your letter of November 30 would be a contract of insurance,
within the description of section 3 of chapter 214 of the Acts of
1887.
Very respectfully, your obedient servant,
A. E. PiLLSBUKY, Attorney-General.
[Po^wer of appointment of assistant clerk of municipal court of Rox-
bury Is not with the Executive.]
Attorney-General's Department,
Boston, Dec. 3", 1891.
To His Excellency the Governor.
I acknowledge receipt of your request for my opinion as to
your power to appoint an assistant clerk of the municipal court of
the Roxbury district ; and I have no doubt of the correctness of
your view that the power of appointment to that office does not
lie With the Executive.
Very respectfully, your obedient servant,
A. E. PiLLSBURY, Attorney- General.
[Fire insurance. Promise of policy, in case of explosion followed by
flre, to pay value of property before explosion, may be lawful,
but not in the Massachusetts standard policy.]
Attorney-General's Department,
Boston, Dec. 18, 1891.
Hon. Gkokge S. Mkuuill, Insurance Commissioner.
Sir : — In my opinion, there is nothing in the statutes, or in the
general principles or policy of the insurance law, to forbid com-
panies authorized to insure against fire in Massachusetts from
inserting in their policies a clause providing that, " in the event
of an explosion, fire ensuing, the company shall pay the loss on
the portion so injured by fire at the value thereof before the
1892.] PUBLIC DOCUMENT — No. 12. 49
explosion." Jt involves no violation of section 57 of the insurance
act of 1887, if the policy is originally issued for an amount which,
together with existing insurance, does not exceed the fair value of
the property insured at that time ; and, while such a clause is
undoubtedly inconsistent with the prescribed stipulation of the
Massachusetts standard policy tliat the liability of the company is
" not to include loss or damage caused by explosion of any kind
unless fire ensues, and then to include that caused by fire only,''
the seventh excepting-clause of section 60 of the insurance act
expressly permits the insertion in policies of insurance, under cer-
tain conditions therein prescribed, of " provisions adding to or
modifying those contained in the standard form."
But the whole course of legislation concerning the Massachu-
setts standard policy, from its establishment by chapter 331 of
1873 through the successive additions to and re-enactments of
that statute in chapter 175 of 1880, 166 of 1881, Public Statutes,
chapter 111), sections 139, 140, and the insurance act of 1887,
section 60, clearly indicates the purpose of the Legislature that
the standard policy shall contain no provisions in addition to or
materially different from those prescribed in the statutory form,
except such as are expressly permitted by the first, second, third,
fourth and fifth excepting-clauses of section 60. The only oae of
these clauses which could be deemed to cover the provision here in
question is the fourth, and that does not appear to me to cover it.
It is designed rather to permit the insertion of such information
and such formal statements, not likely to materially affect the sub-
stance of the contract, as the charter of the company, or the laws
under which it is established, may expressly permit or require to
be inserted. The only authority for the insertion of material
provisions in addition to or materially different from thoSe of the
standard form seems to be in the seventh excepting-clause of sec-
tion 60 ; and it is to be done only in the manner and upon the
conditions therein prescribed ; and a policy issued under this
clause is not the Massachusetts standard policy.
I am, therefore, of opinion that the clause in question cannot
lawfully be inserted in the Massachusetts standard policy, and
that a policy which contains it, while lawful and permissible if it
is inserted in the manner prescribed in the seventh clause of sec-
tion 60, is not the Massachusetts standard policy, and is not to
be so designated.
Very respectfully, your obedient servant,
A. E. PiLLSBURY, Attorney- General .
50 ATTORNEY-GENERAL'S REPORT. iJun.
RULES OF PRACTICE IJST REQUISITION
CASES.
Every application to the Governor for a requisition upon
the executive authority of any other State or Territor}^ for
the delivery up and return of any offender who has fled from
the justice of this State, must be made by the district or
prosecuting attorney for the county or district in which the
offence was committed, and must be in duplicate original
papers, or certified copies thereof.
The following must appear by the certificate of the district
or prosecuting attorney : —
(«) The full name of the person for whom extradition
is asked, together with the name of the agent proposed, to
be properly spelled.
(b) That, in his opinion, the ends of public justice
require that the alleged criminal l)e brought to this State for
trial, at the public expense.
(c) That he believes he has sufEcient evidence to secure
the conviction of the fugitive.
(J) That the person named as agent is a proper person,
and that he has no private interest in the arrest of the fugi-
tive.
(e) If there has been any former application for a requi-
sition for the same person, growing out of the same transac-
tion it must be so stated, with an explanation of the reasons
for a second request, together with the date of such applica-
tion, as near as may be.
(f) If the fugitive is known to be under either civil or
criminal arrest in the State or Territory to wdiich he is
alleged to have fled, the fact of such arrest and the nature of
the proceedings on which it is l)ased must be stated.
((/) That the application is not made for the purpose of
enforcing the collection of a debt, or for any private purpose
1892.] PUBLIC DOCUMENT — No. 12. 51
whatever ; and that, if the requisition applied for be granted,
the criminal proceedings shall not be used for any of said
objects.
(A) The nature of the crime charged, with a reference,
when practicable, to the particular statute defining and pun-
ishing the same.
(^) If the offence charged is not of recent occurrence,
a satisliictory reason must be given for the delay in making
the application.
1. In all cases of fraud, false pretences, embezzlement
or forgery, when made a crime by the common law, or any
penal code or statute, the affidavit of the principal complain-
ing witness or informant that the application is made in good
faith, for the sole purpose of punishing the accused, and
that he does not desire or expect to use the prosecution for
the purpose of collecting a debt, or for any private purpose,
and will not directl}^ or indirectly use the same for any of
said purposes, shall be required, or a sufficient reason given
for the absence of such affidavit.
2. Proof by affidavit of facts and circumstances satisfy-
ing the Executive that the alleged criminal has fled from the
justice of the State, and is in the State on whose Executive
the demand is requested to be made, must be given. The
fact that the alleged criminal was in the State where the
alleged crime was committed at the time of the commission
thereof, and is found in the State upon which the requisition
was made, shall be sufficient evidence, in the absence of
other proof, that he is a fugitive from justice.
3. If an indictment has been found, certified copies, in
duplicate, must accompany the application.
4. If an indictment has not been found by a grand jury,
the facts and circumstances showing the commission of the
crime charged, and that the accused perpetrated the same,
must be shown by affidavits taken before a magistrate.
(A notary public is not a magistrate within the meaning of
the Statutes.) It must also be shown that a complaint has
been made, copies of which must accompany the requisition,
such complaint to be accompanied by afiidavits to the facts
constituting the offence charged by persons having actual
knowledge thereofy and that a warrant has been issued, and
52 ATTORNEY-GENERAL'S REPORT. [Jan.
duplicate certitied copies of the same, together with the
returns thereto, if any, must be furnished upon an appli-
cation.
5. The official character of the officer taking the affidavits
or depositions, and of the officer who issued the warrant
must be duly certified.
6. Upon the renewal of an application, — for example,
on the ground that the fugitive has tied to another State,
not having been found in the State on which the first was
granted, — new or certified copies of papers, in conformity
with the above rules, must be furnished.
7. In the case of any person who has been convicted of
any crime, and escapes after conviction, or while serving his
sentence, the application may be made by the jailer, sheriff
or other officer having him in custody, and shall be accom-
panied by certified copies of the indictment or information,
record of conviction and sentence upon which the person is
held, with the affidavit of such person having him in custody,
showing such escape, with the circumstances attending the
same.
8. No requisition will be made for the extradition of any
fugitive except in compliance with these rules.
1892.] PUBLIC DOCUMENT — No. 12. 53
INFORMATIONS.
I.
At the Relation of the Treasurer and Receiver-General.
1. For the non-paymeut of the corporation taxes for 1800
against the —
Allen & Rowell Company. Taxes paid. Information dismissed.
Bee Newspaper Company. In insolvency. Enjoined.
Black Rocks and Salisbury Street Railroad Company. Taxes
paid. Information dismissed.
Boston Advertising Company. Taxes paid. Information dis-
missed.
Boston Lighterage and Towing Company. Taxes paid. Informa-
tion dismissed.
Boston Macaroni Manufacturing Company. Taxes paid. Infor-
mation dismissed.
Brockton Gazette Company. Pending.
Chas. W. Copeland Manufacturing Company. Taxes unpaid.
' Enjoined.
Coburn Shuttle Company. Taxes paid. Information dismissed.
Co-operative Workingmen's Corporation. Taxes unpaid. En-
joined.
Crystal Emery Wheel Company. Taxes paid. Information dis-
missed.
Duralite Manufacturing Company. Taxes unpaid. Enjoined.
Gardner Gas Light Company. Pending.
Hampden Envelope Company. Taxes paid. Information dis-
missed.
Hancock Inspirator Company. Taxes paid. Information dis-
missed.
Lewis Engraving Company. Taxes paid. Information dismissed.
Longley Machine Company. Taxes unpaid. Enjoined.
Lord «Sc Gale Manufacturing Company. Taxes unpaid. Enjoined.
Low Art Tile Company. Taxes paid. Information dismissed.
Lynn Ice Company. Taxes paid. Information dismissed.
Massachusetts and Southern Construction Companj'. Pending.
Massasoit Worsted Company. Taxes paid. Information dis-
missed.
54 ATTORNEY-GENERAL'S REPORT. [Jan.
Naumkcag Street Railroad Company. Taxes paid. Informa-
tion dismissed.
Nevvburyport Herald. Pending.
Old Spain Co-operative Society. Taxes paid. Information dis-
missed.
Palmer Carpet Company. Taxes paid. Information dismissed.
People's Line. Taxes paid. Information dismissed.
Plum Island Street Railroad Company. Taxes paid. Informa-
tion dismissed.
Prang PMucational Company. Taxes paid. Information dis-
missed.
Pranker Manufacturing Company. Taxes paid. Information
dismissed.
Reading Water Company. Taxes paid. Information dismissed.
Rex Liquid Stove Polish Company. In insolvency. Enjoined.
Security Associates. Pending.
Suburban Light and Power Company. Taxes paid. Informa-
tion dismissed.
Traveller Newspaper Company. Taxes paid. Information dis-
missed.
Union Desk Company. Taxes paid. Information dismissed.
Wain Wright Manufacturing Company. Taxes paid. Information
dismissed.
Weutworth Carpet Lining Company. Taxes unpaid. Pending.
Western Union Telegraph Company. Taxes paid. Information
dismissed.
2. For failure to make the tax returns required by Public Stat-
utes, chapter 13, section 38, against the —
Boston Car Spring Company. Pending.
Citizens' Gas Light Company of Quincy. Return filed. Infor-
mation dismissed.
Consolidated Folding Bed Company. Pending.
Co-operative Workingmen's Corporation. Pending.
Daily News Company. Return filed. Information dismissed.
Damon Narrow Fabric Company. Return filed. Information
dismissed.
Dorchester Chemical Company. Return filed. Information dis-
missed.
Duralite Manufacturing Company. Pending.
E. A. Bliss Company. Information dismissed.
East Douglas Co-operative Association. Return filed. Informa-
tion dismissed.
181)2.] PUBLIC DOCUMENT — No. 12. 55
Freemau Manufacturing Company. Pending.
International Cigar Makers' Co-operative Association. Pending.
Lougley Machine Company. Pending.
Martha's Vineyard Railroad Company. Returned liled. Informa-
tion dismissed.
Martha's Vineyard Street Railroad Company. Pending.
Mechanical, Electric, Scientific and Railroad News Bureau. Return
filed. Information dismissed.
Morley Paper Company. Pending.
News Publishing Company. Pending.
Oriental Coal Oil Company. Return filed. Information dismissed.
Porter Manufacturing Company. Information dismissed.
Rex Liquid Stove Polish Company. Pending.
Standard Electric Supply Company. Pending.
Stoneham and Wakefield Electric Power Company. Pending.
Swan, Holt Company. Pending.
Wentworth Carpet Lining Company. Pending.
Weymouth Light and Power Company. Pending.
Worcester Steel Works. Insolvent. Return excused by Com-
missioner.
3. For the salary and expenses of the Commissioner of Foreign
Mortgage Corporations against the —
Dakota Loan and Trust Company. Tax paid. Information dis-
missed.
4. For the salary and expenses of the Railroad Commissioners
against the —
Martha's Vineyard Railroad Company. Paid. Information dis-
missed.
II.
At the Relation of the Commissioner of Cokpouations.
1 . For failure to make return of the certificate of condition
required by Public Statutes, chapter 106, section 54, against the —
Agawam Manufacturing Company. Pending.
Atherton Machine Company. Pending.
Baltimore and Ohio Telegraph Company. Pending.
Boston Car Spring Company. Pending.
Burleigh Rock Drill Company. Pending.
Ba}' State Gold IMining Company. Pending.
Baker's Pond and Drain Fishing Company. Pending.
56 ATTORNEY-GENERAL'S REPORT. [Jan.
Boston AVool Company. Return filed. Information dismissed.
Charles River P^lectric Light and Power Company. Pending.
Duralite Manufacturing Company. Pending.
Day Cordage Company. Pending.
Uamon Narrow Fabric Company. Return filed. Information
dismissed.
Dorchester Chemical Company. Return filed. Information dis-
missed.
Evening Mail Company. Pending.
Elwell Heddle Company. Pending.
Foxborough Manufacturing Company. Pending.
Freeman Manufacturing Company. Pending.
Fall River Daily Herald Publishing Company. Pending.
Falmouth Local Publishing and Printing Company. Pending.
J. B. Parker Machine Company. Return filed. Information dis-
missed.
Lancaster Water Company. Pending.
Longley Machine Company. Pending.
Messinger Manufacturing Company. Pending.
Miller's River Gas Light Company. Pending.
New England Dredging Company. Return made. Information
dismissed.
Old Spain Co-operative Society. Pending.
Paquoig Soapstone Company. Company insolvent. Information
dismissed.
(^uaboag Steamboat Company. Pending.
Springfield Pump and Manufacturing Company. Pending.
Silica Mining Company. Pending.
Thomas B. Adams Company. Pending.
Westfield Brick Company. Pending.
AVorcester Fire Pail Company- Pending.
Williston Mills. Return filed. Information dismissed.
2. For non-payment of fee required by Public Statutes, chapter
lOG, section 84, against the —
Chas. W. Copelaud Manufacturing Company. Unpaid. Enjoined.
Cosmopathic Medical Institute and Sanitarium Association.
Pending.
Hotel Rebate Association. Unpaid. Enjoined.
Lord & Cale Manufacturing Company. Un[)aid. Enjoined.
Miller's River Gas Light Company. Unpaid, To be dissolved.
1892.] PUBLIC DOCUMENT — No. 12. 57
APPEALS, EXCEPTIO:^rS AND REPORTS
IN CRIMINAL CASES
For the Year ending Jan. 20, 1892.
Barnstable Count>j.
Commonwealth v. Erastas Crowell. Unlicensed itinerant vendor
of clothing (St. 1890, c. 448). Report. Not yet heard.
Berkshire County.
Commonwealth v. John Purcell. Liquor nuisance. Exceptions
to evidence, and appeal from order overruling motion in arrest
of judgment. Overruled.
Bristol County.
Commonwealth v. Richard J. Dunleay. False pretences. Excep-
tions to rulings. Sustained. Argued in October, 1890, but
not decided till February, 1891.
Commonwealth v. Charles Gagne. Illegal keeping of intoxicating
liquors. Exceptions to rulings. Overruled. Argued in
October, 1890. Decided in February, 1891.
Commonwealth v. Annie E. Galligan. Liquor nuisance. Excep-
tions to evidence. Overruled.
Commonwealth v. Barney F. Galligan. Illegal keeping of intoxi-
cating liquors. F^xceptions to rulings. Waived.
Commonwealth v. Barney F. Galligan. Liquor nuisance. Illegal
sale of intoxicating liquor. Exceptions to evidence and rulings.
Overruled.
Commonwealth v. Matthew Hyland. Liquor nuisance. P^xcep
tions to rulings. Overruled.
Commonwealth v. James H. Kelle}'. Li(iuor nuisance. Appeal
from judgment sustaining demurrer to plea. Waived.
Commonwealth o. Julius Marchand. Carrying intoxicating liquor
into Westport with intent unlawfully to sell the same. Report
on question of sentence of fine and imprisonment. Both
imposed.
/)8 ATTORNEY-GENERAL'S REPORT. [J.in.
Coiuinonwealth v. Patrick McShaue. Idle and disoidedy person.
Appeal from order overruling motion in arrest of judgment.
Appeal waived.
Conimonwealtli v. John O'Hanlon. Illegal sale of intoxicating
liquor. I^xceptions to evidence. Overruled.
Commonwealth v. Potomska Mills Corporation. Fining employee
for imperfect weaving in violation of St. 1891, chapter 125.
Verdict, guilty. Report. Verdict set aside.
Commonwealth v. Horence J. Riordan. Illegal sale of intoxi-
cating liquor. Exceptions to instructions. Defendant's death
suggested.
Commonwealth v. Florence J. Riordan. Illegal keeping of in-
toxicating liquor. Exception to rulings. Defendant's death
suggested.
Commonwealth v. Daniel H. Sullivan. Illegal keeping and ex-
posing intoxicating liquor. Exceptions to rulings. AVaived.
Commonwealth v. James C. Taber. Liquor nuisance. Illegal sale
of intoxicating liquor. Exceptions to rulings. Overruled.
Commonwealth v. James C. Taber. Illegal keeping of intoxi-
cating liquor. Exceptions to evidence and rulings. Motion
in arrest of judgment. Overruled.
Essex County.
Commonwealth v. George A. Andrews. Malicious burning of
a building adjoining a dwelling-house, and burning of
defendant's goods with intent to defraud an insurance com-
pany. Exceptions to instructions. Overruled.
Commonwealth v. Charles I. Bickum (two cases). Liquor
nuisance and illegal sale. Exceptions to ruling. Sustained.
Commonwealth v. Daniel Calhane. Liquor nuisance. "Original
package." Report. Verdict, guilty. Judgment on the
verdict.
Commonwealth v. Itlisha Chandler. Illegal sale of intoxi-
cating liquor. Exceptions to rulings. Overruled.
Commonwealth v. James E. Connor. Illegal keeping of in-
toxicating liquor with intent to sell. Motion to dismiss.
Dismissed.
Commonwealth v. Michael F. Connor. Illegal keeping of in-
toxicating liquors with intent to sell. Exceptions to order
overruling motion to quash. Overruled for want of prosecu-
tion.
Commonwealth v. Patrick Devine et al. Perjury and accessor^'
before fact. Exceptions to order overruling motion to quash.
Overruled.
Commonwealth v. John R. Dunlap. Liquor nuisance. Excep-
tions to rulings. Continued under Public Statutes, chapter
150, section 9.
1892.] PUBLIC DOCUMENT — No. 12. 59
Coiuinon wealth v. Thomas F. Hogan. Having possession of
short lobsters in violation of St. 1887, chapter 314.
Exceptions to rulings. Waived.
Commonwealth v. John Homer. Abortion. Report. Argued in
November, 1890. Decided February, 1891. Verdict set aside.
Commonwealth v. Stephen Jewett. Illegal keeping of intoxi-
cating liquors for sale. Exceptions to evidence. Overruled
for want of prosecution.
Commonwealth v. Augustus F. Mead. Illegal keeping of in-
toxicating liquor and liquor nuisance. Exceptions to evi-
dence. Overruled.
Commonwealth v. James Welch. Liquor nuisance. Exceptions
to evidence and rulings. Waived.
Hampshire County.
Commonwealth v. Joseph La Fleur. Illegal keeping of intoxi-
cating liquor with intent to sell. Exceptions to rulings.
Waived.
Commonwealth v. Margaret Lj'nn.
Same v. Same. Illegal keeping of intoxicating liquors with in-
tent to sell. Exceptions to rulings. Overruled.
Commonwealth v. Cornelius Halloran and John J. Ryan. Robbery.
Exceptions to rulings. Overruled.
Middlesex County.
Commonwealth v. Charles E. Brown, Frank S. Bennett, Frank
M. Merrill. Action on a recognizance. Exception to ruling.
Waived.
Commonwealth v. Henry S. Brown. Carrying intoxicating liquors
into Lowell for the purpose of unlawful sale. I^xceptions
to instructions. Ov^erruled.
Commonwealth v. John Callahan, Jr. Illegal keeping of intoxi-
cating liquor with intent to sell. Exceptions to evidence.
Not yet decided.
Commonwealth v. James E. Carney. Illegal keeping of intoxi-
cating liquors with intent to sell. Exceptions. Motion in
arrest. Argued in November, 1890. Decided April, 1891.
Exceptions overruled. Order overruling motion in arrest
affirmed.
Commonwealth 'O. John B. Clancy. Illegal keeping of intoxi-
cating liquor with intent to sell. Exceptions to rulings.
Defendant defaulted.
Commonwealth v. Henry Cossebooni. Assault upon and carnal
abuse of female child. Exceptions to evidence and rulings.
Overruled.
Commonwealth v. Lawrence G. Costello. Embezzlement. I^x-
ceptious to rulings. Waived.
60 ATTORNEY-GENERAL'S REPORT. [Jan.
Commonwealth v. James W. Doherty. Liquor nuisance. Chal-
lenge to array. Not yet heard.
Commonwealth v. William Gay (two cases.) Liquor nuisance.
Motion to quash. Exceptions to rulings. Overruled.
Commonwealth v. Dean S. Jones. Illegal keeping of intoxicating
liquor with intent to sell. Overruled.
Commonwealth v. Patrick Lannan. Liquor nuisance. Exceptions
to evidence and rulings. Sustained.
Commonwealth v. Henry M. Leach. Abortion. Exceptions to
evidence and rulings. Argued but not yet decided.
Commonwealth v. Patrick Lynch. Liquor nuisance. Exceptions
to rulings. Waived.
Commonwealth v. John Marble. Liquor nuisance. Exceptions
to order overruling motion to dismiss. Defendant defaulted.
Commonwealth v. Michael McCauley. Illegal keeping of intoxi-
cating liquor. Motion to set aside verdict and for new trial.
Not yet heard.
Commonwealth v. Jeremiah Meaney. Liquor nuisance. Appeal
from order overruling motion in arrest of judgment. Defend-*
ant defaulted.
Commonwealth v. Patrick Mulcahoy. No record transmitted to
this department. Defendant defaulted.
Commonwealth v. James Munn. Liquor nuisance. Motion in
arrest of judgment. Not yet heard.
Commonwealth v. James O'Neil. Illegal keeping and exposing
intoxicating liquors with intent to sell. Exceptions to rulings.
Overruled.
Commonwealth v. Thomas Parks and William H. Riley. Com-
plaint for violation of city ordinance. Exceptions to rulings.
Not yet heard.
Commonwealth on scire facias v. Mary E. Parton el ah. Scire
facias against bail. Exceptions to rulings. Waived.
Commonwealth v. Joseph W. Purcell. Illegal sales of intoxicat-
ing liquors. Exceptions to evidence. Defendant's death
suggested.
Commonwealth v. Michael (^uirk. Liquor nuisance. Exceptions
to rulings. Overruled.
Commonwealth r. Frank E. Shaw. Illegal keeping of intoxicating
liquors with intent to sell. Exceptions to rulings. Over-
ruled. Argued in October, 1890, and decided the following
November with Commonwealth v. Francis, 152 Mass. 508.
Commonwealth v. Andrew C. Stevens. Illegal sale of intoxicat-
ing liquor to minor by agent. Exceptions to instructions.
Sustained.
Commonwealth r. Andrew C. Stevens. Illegal sales of intoxi-
cating liquor to minor by agent. Exceptions to evidence
and rulings. Overruled.
1892.] PUBLIC DOCUMENT — No. 12. (U
Norfolk County.
Commonwealth v. Catherine Fitzpatrick. Liquor nuisance. Ex-
ceptions to evidence. Defendant defaulted.
Commonwealth v. Henry C. Fredericks. Larceny. Plxeeptions
to rulings. Overruled.
Commonwealth /'. Charles L. Prescott et al. Taking smelts in
violation of Public statutes, chapter 91, section 58. Appeal
from order of superior court overruling motion in arrest of
judgment. Order affirmed.
Plymouth County.
Commonwealth v. William Cutler. Sale of mortgaged personal
property. Exceptions to rulings. Overruled. Argued Octo-
ber, 1890. Decided February, 1891.
Commonwealth c. Lewis S. M. Gliddeu. Liquor nuisance. Excep-
tions to rulings. Waived.
Commonwealth?;. Rosanna Hagan. Liquor nuisance. Exceptions
to evidence. Sustained. Argued October, 1890. Decided
Jan. 6, 1891.
Commonwealths. JohnS. Hughes. Liquor nuisance. Exceptions
to rulings. Overruled.
Commonwealth v. John McCarty. Perjury. Exceptions to evi-
dence and rulings. Overruled.
Commonwealth v. William Mclntee. Liquor nuisance. Excep-
tions. Waived.
Commonwealth v. Moritz Schindler (two cases). Illegal keeping
of intoxicating liquor with intent to sell. Exceptions to
rulings. Waived.
Commonwealth v. John Quinlan. Liquor nuisance. Exceptions
to rulings. Overruled.
Suffolk County.
Commonwealth V. Henry Abrahams. Violation of park ordinance.
Not yet heard.
Commonwealth v. Charles Bailey. Registering bets and selling
pools in violation of St. 1885, chapter 342. Motion to quash.
Exceptions to rulings. Overruled for want of prosecution.
Commonwealth v. Mary Bailey. Liquor nuisance. Exceptions to
rulings. Overruled for want of prosecution.
Commonwealth v. PMward E. Baker. Common nuisance for
illegal gaming. Motion to quash and exceptions to rulings.
Overruled.
Commonwealth v. Catherine Callahan. Illegal keeping of in-
» toxicating liquor with intent to sell. Exceptions to evidence.
Overruled for want of prosecution.
62 ATTORNEY-GENERAL'S REPORT. [Jan.
Commonwealth ik Patrick Clancy. vSelling pools and registering
bets in violation of St. 1885, chapter 342,, section 1.
P^xceptions to evidence and rulings. Overruled.
Commonwealth v. Joseph Conley. Registering bets and selling
pools in violation of St. 188.3, chapter 342. Exceptions to
evidence, to refusals to rule, and to order overruling motion to
quash. Overruled for want of prosecution.
Commonwealth v. John Cronan. Stealing from the person. Ex-
ception to rulings. Overruled.
Commonwealth v. Leonard R. Cutter. Violation of city ordi-
nance. Exceptions to rulings. Not yet heard.
Commonwealth v. Silas S. Drew. Obtaining goods under false
pretence of carrying on business in violation of Public
Statutes, chapter 203, section 60. Exceptions to evidence.
Overruled.
Commonwealth r. Sherman FoUansbee. Procuring an abortion.
Exceptions to evidence and ruUngs. Overruled.
Commonwealth v. Frank M. Frost. Liquor nuisance. Sale by
druggist. Exceptions to ruling. Overruled.
Commonwealth v. Gaming Implements, Horan Brothers, claim-
ants. Proceedings for forfeiture. Exceptions to rulings.
Sustained.
Commonwealth v. Frank E. Gillis. Burning a building. Motion
to quash. Exceptions to rulings. Waived.
Commonwealth v. Eugene Graves, alias La Fosse. Procuring an
abortion. Exceptions to evidence and instructions. Over-
ruled.
Commonwealth v. Etta W. Harris, alias Ludgate. Procuring an
abortion. Exceptions to evidence and rulings. Defendant's
death suggested. P^xceptions dismissed.
Commonwealth v. Julia Hayes. Illegal keeping of intoxicating
liquor. Exceptions to evidence. Waived.
Commonwealth v. Russell Huntley et al. Exposing oleomargarine
for sale in violation of St. 1891, chapter o8. Report. Argued
but not yet decided.
Commonwealth v. Dennis H. Lannan. Larceny. Exceptions to
rulings. Overruled.
Commonwealth v. Bridget Lydon. Liquor nuisance. Exceptions
to rulings. Waived.
Commonwealth v. George W. Meserve et al. Conspiracy to
obtain goods by means of false pretences. Exceptions to
evidence and to instructions. Overruled.
1892.] PUBLIC DOCUMENT — No. 12. 63
John Murphy, alias McCarty, petitioaer to prove exceptions. As-
sault with intent to rob, not being armed. Exceptions to
evidence. Dismissed.
Commonwealth v. Timothy Murphy. Illegal keeping of intoxi-
cating liquors with intent to sell. .Exceptions to evidence.
Overruled.
Commonwealth v. Walter F. Murphy. Illegal sale of intoxicating
liquor to minor. Motion to quash. Exceptions to instructions.
Overruled.
Commonwealth v. James A. Nickerson. Common nuisance resorted
to for illegal gaming. Exceptions to rulings. Waived.
Commonwealth v. Daniel E. Page, Jr., et al. Using hackney
carriage without license. Verdict, guilty. Report. Judg-
ment on the verdict.
In re Benjamin A. Plumley on habeas corpus. Sale of oleo-
margarine in violation of St. 1891, chapter 58. Argued but
not yet decided.
Commonwealth v. Mercy F. Roberts. Complaint for insufficient
water-closets in violation of St. 188.5, chapter 382, section 2,
and St. 1889, chapter 450, section 2. Verdict of guilty.
Report. Judgment on the verdict.
Commonwealth v. Joseph H. Ryan. Embezzlement. Exceptions
to rulings. Pending.'
Commonwealth v. John W. Savage. Possession of short lobsters
in violation of St. 1887, chapter 314. Exceptions to rulings.
Overruled.
Commonwealth v. John Sullivan. Illegal keeping and expos-
ing for sale of intoxicating liquors. Exceptions to evidence
and rulings. Overruled for want of prosecution.
Commonwealth v. Patrick Tangney. Illegal keeping and exposing
for sale of intoxicating liquors. Motion in arrest of judg-
ment. Overruled for want of prosecution.
Commonwealth v. Henry Taylor. Robbery. Exceptions to evi-
dence and rulings. Waived.
Commonwealth v. Albert Trenholm. Illegally exposing and keep-
ing for sale intoxicating liquors. Exceptions to instructions
and motion to dismiss. Defendant defaulted. Exceptions
overruled for want of prosecution.
Commonwealth v. Henry P. Vieth. Sale by agent in restaurant of
milk not of standard quality. Elxceptions to rulings. Over-
ruled.
Commonwealth v. Thomas Watson. Selling pools in violation of
St. 1885, chapter 342, section 1. Exceptions to instructions
and to order overruling motion to quash. Overruled.
64
ATTORNEY-GENERAL'S REPORT.
[Jan.
Worcester Cowdi/.
Commonwealth v. Henry W. Goodnow. Illegal keeping of intoxi-
cating liquor with intent to sell. P^xceptions to evidence.
Overruled.
Commonwealth v. Frank A. Lavoie. Illegal keeping of intoxi-
cating liquors with intent to sell. Exceptions to rulings.
Waived.
(^'ommonwealth v. Josiah Perry. Violation of St. 1891, chapter
12o, forbidding the imposition of tines for imperfect weaving.
Exceptions to rulings. Sustained. New trial granted.
TABLE
Skowing the Number of Criminal Cases pending on Questions of
Laiv in the Supreme Judicial Court during the Year ending Jan.
20^ 1892, and the Disposition thereof by Counties.
COUNTIES.
1
5
6
i
a
il
Is
a o
■c c
■SS
15
1
1
1
1
.ill
m
111
1
1
1. Barnstable,
2. Berkshire, .
3. Bristol,
4. Essex,
5 Hampshire,
6. Middlesex,
7. Norfolk, .
8. Plymouth, .
9. Suffolk, .
10. Worcester,
Totals, .
1
1
16
14
4
27
3
9
36
3
114
1
8
3
10
2
3
23
1
58
2
4
2
1
1
1
11
4
1
5
2
1
2
5
4
2
1
3
5
5
1
21
1
5
2
8
1
2
2
2
4
18*)2.]
PUBLIC DOCUMENT — No. 12.
65
Table showing the Numher and Character of Griniinal Cases inndincj
on Questions of Law in the Supreme Judicial Court during the
Year ending Jan. 20^ 1892, and the Disposition thereof.
OFFENCES.
5
Is
1'
li
f
1
1
1
1
1
5
III
t- = c
■il-2
1.
'A
6
Abortion,
Accessory before the fact to perjury,
Assault with intent to rob,
Burning goods to defraud insurance
comjjanj,
Burning building, ....
ConsiMraey to obtain goods by false
pretences,
Embezzlement,
Felonious assault, ....
Finingweaver for imperfect weaving,
Gaming, unlawful, ....
Gaming implements, forfeiture of, .
Hackney carriage, use of, without
licensee, . . .
Idle and disorderly person.
Intoxicating liquor, common nui-
sance,
Intoxicating liquor, illegal keejiing,
Intoxicating liquor, illegal sale of.
Intoxicating liquor, illegal transpor-
tation of,
Larceny,
Lobsters, possession of short, .
Milk, adulterated, sale of.
Obtaining goods under false pre-
tences, . '
Obtaining goods under false pre-
tence of carrying on business,
Oleomargarine colored in imitation
of yellow butter, sale of, in viola-
tion of St. 1891, 0. .58, .
Perjury
Recognizance, suit on.
Robbery,
Sale of mortgaged property, .
Scire facias against bail, .
Selling pools,
Smelts, taking, in violation of Pub
Sts c. 91, § 58, .
Stealing from the person.
Unlicensed itinerant vendor, .
Violation of city ordinances, .
Water-closets, insufficient, in viola-
lation of Sts. 188.5, c. 382, and 1889,
c. 450,
Case in which no record, .
Totals,
0
1
1
1
1
\
•1
2
•
1
1
29
29
7
9
2
1
1
1
2
1
1
2
1
\
1
1
1
o
1
1
114
2
1
1
1
1
1
1
12
17
4
2
2
1
1
1
1
1
1
4
]
1
1
58
1
2
1
4
1
1
1
11
1
1
1
1
(I
1
1
1
1
21
_
1
_
~_
1
5
1
1
1
2
5
?,
1
1
3
8
1
-
_
1
2
-
-
1
1
2
06 ATTORNEY-GENERAL'S REPORT. [Jan.
Habeas Corpus.
Tlie following applications for the writ of habeas corpus were
made during the year ending .Jan. 20, 1892 : —
1. Bratton, Wm. L., petitioner, on behalf of son Lawrence. Suf-
folk. Hearing, July 17, 1891. Petition dismissed.
2. Hoffman, Philip, petitioner. Held as a witness. Hearing,
July 23, 1891, in Suffolk. Writ ordered to issue. Prisoner
discharged.
3. Holloran, James ; Barry, John ; Owens, James, petitioners.
Fine for drunkenness. Nov. 18, 1891. Prisoners discharged.
4. George W. Meserve, petitioner. Petition denied Dec. 31,
1891.
5. Monahan, William, petitioner. Suffolk. Hearing, Oct. 19,
1891. Sentenced for drunkenness. Petition denied.
6. Monahan, Lucy, petitioner. Suffolk. Hearing, Dec. 1, 1891.
Sentenced for drunkenness. Petition denied.
7. Plumlev, Benj. A., petitioner. Sale of oleomargarine. Suf-
folk. ^ Hearing, Oct. 29. 1891. Reported to full court Nov.
24 and 25, 1891. Argued, but not yet decided.
8. Sullivan, Timothy, petitioner, Suffolk. Hearing, Oct. 13,
1891. Sentenced for drunkenness. Petition denied. Oct.
17, -1891, petition for rehearing denied.
Wurrs OF Ekhor.
Brown, John F., in error, v. Commonwealth. Jurisdiction of
court. See 150 Mass. 334. Pending in Supreme Court of
United States.
Kuskingski, Morris, alias Hariis Simon v. Commonwealth.
Juvenile offender. Error from Municipal Court. Suffolk.
Scire facias. Sept. 18, 1891. Hearing and judgment
reversed.
Manchester, Arthur, u. Commonwealth. Violation of St. 1886,
chapter 192, relating to the menhaden fishery. Writ of error.
Judgment of State Court affirmed. See 152 Mass. 230 and
139 U. S. 240.
McFall, James, v. Commonwealth. Juvenile offender. Error
from Municii)al Court, Dorchester District. Suffolk. June
15, 1891. Hearing and judgment reversed.
Monahan, Lucy, v. Commonwealth. Suffolk. Pending.
Sturtevant, Frederick, v. Commonwealth. Habitual criminal act.
Suffolk. To Superior Court. Pending.
1892.]
PUBLIC DOCUMENT — No. 12.
67
O s
be S
Lawful and in proper form.
io'l
Berkshire,
Suffolk,
Suffolk,
Norfolk,
Suffolk,
Suffolk,
Middlesex,
Essex,
Norfolk,
i
1
a
•£
o
Escaped prisoner convicted of drunkenness, .
Larceny,
Unlawfully and forcibly, and without consent, carry-
ing and sending one Phillips without the State.
Embezzlement,
Rape
Forgery and uttering a forged order for money and
a promissory note.
Forgery of an order for money and uttering the
same. Embezzlement and larceny.
Assault with dangerous weapon, with inteuttoescape
from House of Correction.
Embezzlement
Lewd and lascivious cohabitation
Common nuisance,
Larceny, .
Embezzlement,
1
1
3
s
<
O
Charlts Collins
AlbertH.Hurd,«it"a.sHenryA.Hurd,
Preston B. Sibley, ....
Charles Simons, alias Charles Sim-
mons.
Antonio Scarano
Samuel Udell
George H. Watson, ....
Charles H. Willard, alias Charles
Mason.
Robert A. Stanton, ....
Lester S.Smith
Francis Bartlett
Cornelius Keating
Cornelius Shea, . . . .
Richard Myers, ...
-gl
11
=•5
II
Connecticut,
Georgia, .
Illinois, .
Maryland, .
Minnesota,
Montana, .
New Hampshire
New Jersey,
a °3 g
^s f, ^ s - s -" -" s s s - - g
Is i g g^ ^-^i-g ^^2 t 'i
68
ATTORNEY-GEN KRAL'S REPORT. [Ja
1
Lawful and in proper form.
o 1
H
i:
Suffolk,
Berkshire,
Suffolk,
Suffolk,
Suffolk,
Suffolk,
Hampden,
Suffolk,
Franklin,
Suffolk,
Suffolk,
Suffolk,
Hampden,
Suffolk,
1
o
Unlawfully selling intoxicating liquors, .
Embezzlement
Larceny and receiving stolen goods, ....
Concealing personal property held upon a conditional
Larceny,
Conspiracy, with intent to defraud insurance company.
Polygamy,
Larceny in building
Receiving stolen goods,
Larceny from person,
Prizefighting,
Forgery and uttering forged order for money, .
Forgery and uttering forged order for money, .
Larceny and receiving stolen goods
Breaking and entering, with intent to commit larceny.
Larceny iu building
Breaking and entering a building with intent to
steal.
1
3
<
1
Peter Barry
Cesar Cesano,
Frank Collins, alias Francis Collins,
George 8. Eaton, ....
Joseph Ford
John J. King,
John W. Lyman
William J. Morse, Jr
Dennis A. Mountain,
Dennis F. Murray, ....
William O'Neil
Joseph A.Phillips, . . . .
Thomas J. Thompson
Henry Wellington and Carrie La
Fortune, aliun Carrie Wellington.
George Wells
Edward Whalen
Richard Tate, aHai Frederick You-
man, John Dixon, and Isaac Liss-
ner, alian Ike Lissner.
o
•S a
is
c it
!l
If
New York,
Date
of
Refer-
ence.
^?, ^ '°' S "=" ^ ^" S^" '=" S' ?f S" §5 S S 2 ^^
ti a t = i i i i i ^ i ^ i i i t li
1892. J
PUBLIC DOCUMENT — No. 12.
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PUBLIC DOCUMENT — No. 12.
71
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72 ATTORNEY-GENERAL'S REPORT. [Jan.
GEADE CEOSSINGS.
[A.]
The subjoined table shows the petitions for abolition of grade
crossings under St. 1890, chapter 428, pending Jan. 21, 1801,
the proceedings had, and disposition thereof.
Franklin County.
Greenfield, Selectmen of, petitioners. Crossing of Clay Hill Street
over Fitchburg & Connecticut River Railroads. Hearings
June 19 and July 8. Feuding.
Hampden County.
Mouson, Boston & Albany Railroad, petitioner. Hastings',
Butler's, Morau's and Silver Street crossings. Hearing
July 25. Fending.
North Wilbraham, Boston & Albany Eailroad, petitioner. Decree.
Palmer, Boston & Albany Railroad, petitioner. Cooley's cross-
ing. Decree.
Springfield, Mayor and Aldermen of, petitioners. Armory Street.
Report of Commissioners filed. Fending.
Westfield, Selectmen of, petitioners. Decree March 7, 1891.
West Springfield, Selectmen of, petitioners. Baldwin and Cold
Spring streets. Hearings. Report of Commissioners filed.
Wilbraham. See Monson.
Hampshire County.
Northampton, Mayor and Aldermen of , petitioners. King, North,
Main, Holyoke, Fleasant (2 crossings) and South streets.
Hearings July 27, September 29, October 1, 2 and 24.
Report of Commissioners filed. Fending.
Middlesex County.
Ashland, Boston & Albany Railroad Company, petitioner.
Decree.
Marlborough, Old Colony Railroad, petitioner. Fisher's cross-
ing. Fending.
Natick, Boston & Albany Railioad Company, petitioner. Hear-
ing-. Decree.
1892.] PUBLIC DOCUMENT — No. 12. 73
Norfolk County.
Braintree, Old Colony Railroad, petitioner. Hearings March 7
and 23. Petition discontinued.
Brookline, Boston & Albany Railroad, petitioner. St. Mary's
Street. Pending.
Norwood, Selectmen of, and New York & New England Railroad,
petitioners. Washington, Chapel and Guild streets and Rail-
road Avenue. Hearings. Pending.
Plymouth County.
Brockton, Old Colony Railroad Company, petitioner. Howard
Street. Hearings. Decree.
Marshfield, Old Colony Railroad, petitioner. Hearings. Decree.
Suffolk County.
Boston, Boston & Albany Railroad Company, petitioner. Everett
Street, Brighton District. Decree.
Boston, Old Colony Raih'oad Company, petitioner. Tremont
Street. Hearings. Pending.
Boston, Old Colony Railroad Company, petitioner. Washington
« Street. Pending.
Worcester County.
Auburn, Boston & Albany Railroad Company, petitioner. Cha-
pin's crossing. Hearing April 11. Pending.
Brookfield, Boston & Albany Railroad, petitioner. Hearings.
Decree.
Charlton, Boston & Albany Railroad, petitioner. Report of
Commissioners filed.
Southborough, Old Colony Railroad Company, petitioner. Hear-
ings. Decree.
Warren, Boston & Albany Railroad Company, petitioner. Decree.
West Brookfield, Boston & Albany Railroad Company. Hearings.
Decree.
Westborough, Old Colony Railroad Company, petitioner. Pend-
ing.
Worcester, Boston & Albany Railroad, petitioner. Ludlow,
Heard and Webster streets and Sutton Lane. Pending.
Worcester, Mayor and Aldermen of, petitioners. Grafton, Green,
Washington and Plymouth streets. Pending.
Worcester, Mayor and Aldermen of, petitioners. Milbrook, Gar-
den, Lincoln, Market, School, Thomas, Central, Exchange,
Summer and Shrewsbury streets. Pending.
74 ATTORNEY-GENERAL'S REPORT. [Jan.
NEW petitio:n^s.
[B.]
Notice has been served upon this Department of the filing
of the following petitions for the appointment of special com-
missioners under St. 1890, chapter 428, relating to the abolition
of grade crossings.
Berkshire County.
Richmond, Town of, petitioner. Crossings over Boston & Albany
Railroad.
Richmond, Town of, and West Stockbridge, Town of, joint peti-
tioners. Crossings over Boston & Albany Railroad.
Williamstown, Town of, petitioner. Crossings over Fitchburg
Railroad.
Hampden County. ■
Chicopee, Town of, petitioner. Crossings over Connecticut River
Railroad.
Palmer, Town of, Boston & Albany Railroad, petitioner. Cross-
ings over Boston & Albany Railroad.
Hampshire County.
Belchertown, Town of, petitioner. Crossings over Central Massa-
chusetts & New London Northern Railroad.
Middlesex County.
Lincoln, Htchburg Railroad, petitioner.
Lowell, City of, petitioner. Crossings over Boston & Lowell Rail-
road and Nashua & Lowell Railroad.
Plymouth County.
Brockton, City of, petitioner. Crossings over Old Colony Rail-
road.
East Bridgewater, Old Colony Railroad, petitioner. Crossings
over Old Colony Railroad.
Warehara. Old Colony Railroad, petitioner. Crossings over Old
Colony Railroad.
Suffolk County.
Boston, Citv of, petitioner. Crossings over New York & New
P^ngland Railroad.
Worcester County.
Athol, Town of, petitioner. Crossings over Vermont & Massa-
chusetts Railroad.
Boylston, Town of, petitioner. Crossings over Central Massa-
chusetts Railroad.
Clinton, Town of, petitioner. Crossings over Boston & Maine
and Old Colony Railroad.
Templeton, Town of, petitioner. Crossings over Vermont &
Massachusetts Railroad.
1892.]
PUBLIC DOCUMENT — No. 12.
75
COLLECTIONS.
[A.]
The subjoined table shows the collections which have been
made by this Department during the year ending Jan. 20,
1892, the nature of the claims, and the Departments from
which they were received : —
l.—From the Treasurer and Receiver-General.
Nature of Claim.
Allen & Rowell Co
American Fire Hose Co.,
Black Rocks & Salisbury Beach Street
Railroad
Boston Advertising Co.,
Boston Lighterage and Towing Co.,
Boston Macaroni M'f g Co., .
Boston Times Co
Boston Wall Paper Co., .
Braintree W^ater Supply Co.,
Central Tow Boat Co., .
Chase's Patent Elevator Co.,
Corporation tax
Interest, .
Corporation tax
Interest, .
Corporation tax
Interest, .
Corporation tax
Interest, .
Corporation tax
Interest, .
Corporation tax
Interest, .
Corporation tax for 1S90,
for 1890,
for 1890,
for 1890
for 1890
for 1890
for 1890,
for 1890,
Corporation tax :
Interest,
Coburn Shuttle Co.
Consolidated Edge and Heel Trimmer
Co
Crystal Emery Wheel Co., .
Duncan Leather M'f'g Co , .
Fall River Herald Co., .
Fall River Tribune Pub. Co.,
Corporation lax
Interest, .
Corporation tax
Interest, .
Corporation tax
Interest, .
Corporation tax
Interest, .
Corporation tax
Interest, .
for 1890
for 1890,
for 1890
for 1890
for 1890
for 1890
for 1890
Corporation tax
Interest, .
Corporation tax for 1S90,
Corporation tax for 1890
Interest, .
$761 40
37 53
$769 45
43 09
$445 20
10 22
$445 20
14 54
$207 76
6 51
$148 55
5 20
$28 94
1 59
$1,210 94
40 78
$44 52
$261 18
15 77
$771 16
812 54
62 59
455 42
55 05
356 16
306 40
459 74
214 27
153 75
568 08
228 61
30 53
1,251 72
44 52
76
ATTORNEY-GENERAL'S REPORT. [Jan.
1. — From the Treasurer and Receiver- General — Continued.
Debtor.
Nature of Claim.
Foxboro' Foundry and Machine Co.,
Hampden Envelope Co.,
Hancock Inspirator Co.,
Hero Cough Syrup Co., .
LewiH Engraving Co.,
Low Art Tile Co
Lynn Bell Line Street R. R. Co.,
Lynn Ice Co
Magneso-Calcite Fire Proof Co.,
Massasoit Worsted Co.,
Nantucket Railroad Co.,
National Fire Works Co.,
National Mortgage and Debenture Co.,
National Plaster Co.,
Naumkeag Street Railroad Co.
New York and Boston Inland R.R,
Newburyport Herald,
Old Spain Co-operative Society,
Palmer Carpet Co., .
People's Line, The,
Plum Island Street R. R. Co.,
Prang Educational Co., .
Pranker Manufacturing Co.,
Raymond Skate Co.,
Reading Water Co.,
Sanford Woolen Co.,
Security Associates,
Corporation tax
Interest, .
Corporation tax
Interest, .
Corporation tax
Interest, .
Corporation tax
Interest, .
Corporation tax for 1890,
for 1890,
Corporation tax
Interest, .
Corporation tax
Interest, .
Corporation tax
Corporation tax
Interest, .
Corporation tax
Interest, .
Corporation tax for 1890,
for 1890,
for]
for 1890,
for 1890,
for 1890,
for 1890,
for 1890,
for 1890,
for 1890,
Corporation tax
Interest,
Corporation tax
Interest, .
for 1890,
for 1890
Corporation tax for 1890,
Corporation tax for 1890,
Interest, . . . ,
Corporation tax for 1890,
for
Corporation tax
Interest,
Corporation tax
Interest, .
Corporation tax
Interest, .
Corporation tax
Interest, .
Corporation tax
Corporation tax
for 1890
for 1890
for 1890,
for 1890
for 1890,
tor 1889
for 1899
$204 79
11 80
$207 76
12 47
$44 .52
1 18
$3,071 88
184 31
$217 41
$46 75
$207 76
8 72
$163 24
3 26
47
$115 00
$298 28
16 70
$667
$337 27
18 54
$11 87
65
$191 38
$300 00
$216 59
220 23
406 67
45 70
32 20
3,256 19
166 08
217 41
216 48
1,000 00
166 50
4,433 60
12 30
115 00
183 27
78 34
314 98
704 53
355 81
402 56
12 52
191 36
300 00
1892.] PUBLIC DOCUMENT — No. 12.
1 — From the Treasurer mid Beceiver- General — Continued.
77
Debtor.
Nature of Claim.
SimoDds Rolling Machine Co.,
Suburban Light and Power Co.,
Traveller Newspaper Co.,
Union Desk Co
Union Electric Light Co.,
Wainwright Manufacturing Co.,
Walter Heywood Chair M'f'g Co,
WeBtern Union Telegraph Co.,
Western Union Telegraph Co.,
Western Union Telegraph Co.,
Western Union Telegraph Co.,
Western Union Telegraph Co.,
Williamstown Gas Co., .
Winehip Daniels Co.,
Woburn Electric Light Co., .
Corporation tax
Interest, .
Corporation tax
Interest, .
Corporation tax
Interest, .
Corporation tax
Intel est, .
Corporation tax
Interest, .
Corporation tax
Interest, .
Corporation tax for 1889,
for 18S6
for 1890,
for 1889;
for 1889,
fori
for]
for 1890,
Corporation tax
Interest, .
Corporation tax
Interest, .
Corporation tax
Interest, .
Corporation tax
Interest, .
Corporation tax
Interest, .
Corporation tax
Interest, .
Corporation tax
Interest, .
Corporation tax
Interest, .
for 1887;
for 1888;
for 1889
for 1890
for 1890
for 1890,
for 1890,
$5,631 63
135 15
$371 00
20 01
$678 93
40 06
$5,294 74
2,530 12
$8,042 73
$18,562 94
3,129 99
$228 .54
3 44
$1,082 73
66 30
$5,766 78
710 52
361 61
391 04
36 33
718 99
187 66
7,824 86
11,768 27
9,942 47
21,692 93
19,157 19
65 90
231 98
1,139 03
Dakota Loan and Trust Co. Salary and Expenses of the Commissioner of
Foreign Mortgage Corporations,
Amesbury and Salisbury Gas Co. Salary and expenses of the Inspector of Gas,
Miller's River Gas Light Co Salary and expenses of the Inspector of Gas,
Martha's Vineyard R R. Co. Salary and expenses of Railroad Commissioners,
Total
$174 56
7 48
42
3 35
$185 81
Debtor.
Nature of Claim.
Amount.
A. M. Gardner Hardware Co.,
Amesbury & Salisbury Gas Co., .
Corporation tax for 1891,
Interest, ....
Corporation tax for 1891,
Interest, ....
$725 00
13 99
$738 99
$294 35
6 24
300 59
78 ATTORNEV-GEXERAL'S REPORT. [Jan.
1 — From the Treasurer and Receiver- General — Continued.
Debtob.
Nature of Claim.
Amount.
Alherton Machine Co
Bacon Paper Co., . . . . ' .
Berkshire Railroad Co., . . . .
Boston & Revere Elec. St. R. R. Co., .
Boston Times Co.,
Child's Acme Press and Cutter Co., .
Choate Drug and Chemical Co., .
Cobb Aldrich Cigar Co.,
Cottage City Water Co
Corporation
Interest, .
Corporation
Interest, .
Corporation
Interest, .
Corporation
Interest, .
tax for 1891
tax for 1891
tax for 1891
tax for 1891
Cutter Tower Co.
East Cambridge Land Co., .
Educational Supply Co.,
Electric and Machine Co.,
Essex Leather Co.,
Foundry Supply Co., . . . .
Foxborough Foundry and Machine Co.,
Gardner Gas Light Co.
Harwood Manufacturing Co.,
Haverhill Ice Co.,
Haydenville Manufacturing Co., .
Hero Cough Syrup Co., ....
HoUiston Water Co., ....
Loring & Blake Organ Co
Lynn Belt Line Street R. R Co., .
Marlborough Street Railroad Co., .
Mass. Guaranty Co.,
Corporation
Interest, .
Corporation
Interest, .
Corporation
Interest, .
Corporation
Interest, .
Corporation
Interest, .
Corporation
Corporation
Corporation
Interest, .
Corporation
Interest, .
Corporation
Interest, .
Corporation
Interest, .
Corporation
Interest, .
Corporation
Interest, .
Corporation
Interest, .
Corporation
Interest, .
Corporation
Interest, .
Corporation
Interest, .
Corporation
Interest, .
Corporation
Interest, .
Corporation
Interest, .
Corporation
Interest, .
Corporation
Interest, .
tax for 1S91
tax for 1891
tax for 1891
tax for 1891,
tax for 1891
tax for 1891
tax for 1891
tax for 1891
tax for 1891
tax for 1891
tax for 1891
tax for 1891
tax for 1891
tax for 1891
tax for 1891,
tax for 1891
tax for 1891
tax for 1891
tax for 1891
tax for 1891
tax for 1891
tax for 1891
$667 00
12 84
$1,087 50
21 04
$174 00
3 8.3
$290 00
6 09
$362 50
7 50
$430 29
9 69
$291) 00
$70 25
$145 00
$88 45
1 70
$S17 OS
16 83
$S8 45
1 70
$1,087 50
24 30
47
$4 35
$679 84
1,108 54
9,751 83
211 72
296 09
370 00
355 54
439 98
290 00
70 25
148 38
97 80
90 15
36 97
204 10
61 60
833 91
90 15
1,111 80
22 22
4 43
631 30
396 60
74_,18
1892.] PUBLIC DOCUMENT— No. 12. 79
1. —From the Treasurer and Receiver- General — Concluded.
Debtor. Nature of Claim. I Amount.
Naumkeag Street Railroad Co.,
New England Morocco Works, .
New England Printing Tel. Co., .
Newburyport& Araesbury H. R.R.Co.,
Newton Rubber Co.
Orange Electric Light Co.,
Tutnam Nail Co
Reading Water Co.,
Robert M. Diaz Co
Sovereign Co-op. Assoc, Webster,
Standard Furniture Co.,
Stockbridge and Pittsfield R. R. Co., .
Suburban Parcel Delivery Co.,
Turner's Falls Lumber Co., .
W. A. Sturdy Manufacturing Co.,
Wainwright Manufacturing Co., .
Wiley Hardware Co., .
Woodward & Brown Piano Co., .
Total
Corporation tax for 1891
Interest, .
Corporation tax for 1S91
Interest, .
Corporation tax for 1891
Interest, .
Corporation tax for 1891
Interest, .
Corporation tax for 1891
Interest. .
Corporation tax for 1891
Interest, .
Corporation lax for
Interest, .
Corporation tax for 1891
Interest, .
Corporation tax for 1891
Interest, .
Corporation tax for 1891
Interest, .
Corporation tax for 1891
Interest, .
Corporation tax for
Interest, .
Corporation tax
Interest, .
Corporation tax
Interest, .
Corporation tax for 1891
Interest, .
Corporation tax
Interest, .
Corporation tax
Interest, .
Corporation tax
Interest, .
for 1891
for 1891
for 1891
for 1891
for 1891
$4,0.57 S3
83 86
$217 50
4 21
$82 65
1 60
$253 75
5 58
$6,119 00
$725 00
14 00
$7,156 77
135 98
$259 04
5 18
$290 00
6 18
$1,075 90
21 52
$4,141 69
44 36
221 71
84 25
226 52
259 33
6,241 38
5 90
147 80
69 06
739 00
7,292 75
295 85
264 22
150 44
296 18
,097 42
80
ATTORNEY-GENERAL'S REPORT.
[Jan.
2. — From the CommisHoncr of Corporations.
Bartlett Automatic Elevator Gate Co., . Fee under Piib. Sis., c. IOC), §§ 54 ami 81, . $.') 00
Oenturj' Manufacturing Co " .... .. .< .5 00
National Card and Paper Co., ..." .< k <> •< _ 5 qq
Old Spain Co-operative Society, . . " " " " " . 5 00
Vineyard Ilaveu Gas and Electric Co., . " " " " " . 5 00
Total $25 00
3. — From the Insurcmce Commissioner.
Anglo-Nevada Assurance Corpo-
ration Penalty for violation of St. 1887, c. 214, § 20, . $500 00
Commercial Union Assurance
Co., limited, of London, . . Penalty for violation of St. 18S7, c. 214, § 20, . 500 00
Total $1,000 00
Commonwealth ». Fitchbiirg R. R., $99,5.33 35
Costs collected, • . . . 575 97
Total $244,117 79
[B.]
The subjoined table shows the condition and disposition
of such other chiims as have been transmitted to this Dc})art-
ment.
1. — From the Treasurer and Receiver- General.
Chamberlain Manufacturing Co., . . Tax for 1890, . $89 04. Pending.
Chas. W. Copeland Manufacturing Co., " " . 18 55. Enjoined.
Co-operative Workingmen's Corpora-
tion " " . 8 46. "
Durante Manufacturing Co., . . . " " . 37 10. "
Eureka Silk Manufacturing Co., . . " " 3,080 78. Insolvent.
Gardner Gas Light Co " " .288 64. Pending.
Longley Machine Co •• •< . 148 40. Enjoined.
Lord & Gale Manufacturing Co., . . " " . 103 88.
Massachusetts and Southern Construc-
tion Co " " 1,855 00. Pending.
Potter, Lovell Co .1 «. 5,936 00. Insolvent.
Rex Liquid Stove Polish Co., . . " " . 22 26. Insolvent. Enjoined.
Security Associates <• .296 80. Pending.
Wentworth Carpet Lining Co., . . " " . 148 40. Information filed to enjoin.
Union Investment Co., .... Salary and expenses of Commissioner of Foreign
Mortgage Corporations. Insolvent.
2. — From the Commissioner of Corporations.
Cosmopathic Medical Institute and Sanitarium Association, Fee
under Pub. St8.,c. 106, §§54 and 81
Mclver Bros. Machine Co., Fee under Pub. Sts., c. 106, §§ 54 and 81,
Chas. W. Copeland Manufacturing Co., Fee und-^r Pub. Sts., c.
106, §§ 54 and 81, 5 00. Enjoined
Hotel Rebate Association, Fee under Pub. Sts., c. 100, §§ 54 and 81, 5 00.
Lord & Gale Manufacturing Co., Fee under Pub. Sts., c. 106, §§ .54
and 81 6 00.
Miller's River Gas Light Co., Fee under Pub. Sts., c. 106, §§ and 81, 5 00.
Times Newspaper Co., Fee under Pub. Sts., c. 106, §§ 54 and 81, . 5 00,
5 00. Pending.
5 00. Insolvent.
To be dissolved
Insolvent.
1892. j PUBLIC DOCUMENT — No. 12. 81
PUBLIC CHAEITABLE TRUSTS.
Babbidge et a/., executors, v. Vittum et al. Construction of will.
Heard before single judge. Pending.
In re estates of Adin and Lucy H. Ballou, Worcester. Public
charitable trust. Petition to probate court for instructions.
Final decree.
In re trust of Margaret Brom field Blanchard, Worcester. Leave
to sell realty at private sale.
George E. Bullard et als., trustees, v. Attorney-General, Town
of Shirley et al. Suffolk. Two bills for instructions. Opinion
of Court, 153 Mass. 249.
Crawford, George A., et al. Petition for appointment of trustees.
Suffolk. S.J.C. Begun March, 1890. Answer of Attorney-
General filed. Final decree Oct. 8, 1891.
George R. Dary, administrator with will annexed of estate of
Abby W. Baker, petitioner, v. Annie R. Foster et aZs., Suffolk.
Petition to Probate Court for instructions as to payment of
legacies. Pending.
David Davis et al. v. Inhabitants of Barnstable, Barnstable. Bill
in equity. Instructions for construction of will. Decided
June 27, 1891. 28 No. E. Rep'r, 165.
William N. Drury, executor, v. Harrison Moore et al., Worces-
ter. Bill for instructions to S. J. C. for instructions as to
construction of will. Decision of court October, 1891, sus-
taining public charitable trust for the benefit of freedmen.
Holmes et al. v. Coates. Construction of will. Answer of Attor-
ney-General filed. Pending.
In re estate of Eli Kilburn, Worcester. Petition to Probate
Court for instructions as to construction of will. Decree
of court establishing trust in favor of Boston Young Men's
Christian Union.
In re estate of Helen C. Knowles, Worcester. Petition of executors
• to transfer fund to St. Walstan Society. Assented to.
In re estate of Mary Marsterson, Byron A. Osgood, Trustee, Suf-
folk. Petition to release possible rights in real estate. Petition
granted.
Thomas Niles et als., Attorney-General et als., Suffolk. Bill
in equity for instructions as to existence of public charitable
trust. Answer of Attorney-General filed. Pending.
82 ATTORNEY-GENERAL'S REPORT. [Jan.
Ill re estate of Reuben Noble. Eliza C. Noble et als.^ executors,
petitioners. Petition to corapromise appeal from probate of
will. Hampden S. J. C. Petition granted.
Phineas B. Smith et al., executors and trustees, v. Sarah A.
Bradley et als., guardians, Suffolk S. J. C. Petition for
instructions under will of Henry A. Walker. Hearing before
single judge. Decree. Settled.
Phiueas B. Smith, executor and trustee, v. Harriet F. D. Walker
et ah. Suffolk. Petition for instructions, under will of
Henry A. Walker, as to existence of public charity. Pend-
ing.
In re estate of John Snow. Petition of El. F. Powers, executor,
for compromise of will. Petition granted.
St. Paul's Church, Wardens and Vestry of, v. Attorney-General
et als.^ Suffolk. Bill for instructions as to construction of
will. Answer of Attorney-General filed. Pending.
Trustees of Hortou Fund of Second Presbyterian Society of New-
buryport v. Attorney-General. Construction of will. Peti-
tion to sell real estate. Answer of Attorney-General filed.
Final decree Dec. 6, 1890.
Trustees of Tuft's College v. Boston et al., Suffolk. Petition to
sell real estate and re-invest proceeds. Attorney-General's
answer filed. Interlocutory decree July 25, 1891. Pending.
In re estate of Mary D. Whitney, Suffolk. Petition of trustees
to sell real estate. Petition granted.
Wright et als., trustees, Middlesex. Petition for leave to convey
trust property. Compromise modified and approved.
1892.] PUBLIC DOCUMENT — No. 12. 83
CASES
Coming under the Supervision of the Attorney- General, hut in
Charge of Private Counsel.
Attorney-General ex rel. Harbor and Land Commissioners v.
Algonquin Club. Information for removal or alteration of
portions of the defendants' club-house erected in violation of
restrictions in the deed from the Commonwealth under which
the defendant derived its title. Hearing before single justice.
Reported to full court. Decree for complaint. Appeal from
decree of single justice ordering the removal of the projections.
Decree affirmed.
Attorney-General e.T reZ. A. B. Curtis et al. v. Samuel S. Pratt,
April 26, 1891. Hearing and use of name granted. Pending.
Argued to full court but not decided.
Attorney-General v. County Commissioners of Hampshire. March
25, 1891. Heard and proceedings suspended.
Attorney-General v. Inhabitants of Brookline, April 16, 1891.
Heard, and use of name refused.
Attorney-General ex rel. Inhabitants of Fairhiiven v. George A.
Briggs et al. Bill to settle public charity. Construction of
clause in will of Abner Pease. Use of name granted.
Pending.
Attorney-General ex rel. Selectmen of the town of Attleborough v.
Old Colony Railroad Company. Petition for an information
to restrain erection of depot. Suffolk S. J. C. Begun July
3, 1890. Pending.
Attorney-General ex'rel. Inhabitants of Attleborough v. Old Colony
Railroad Company. Petition for injunction to restrain obstruc-
tion of street. Use of name granted. Pending.
Attorney-General ex rel. v. William B. Washburn et al. Middle-
sex, ss. Trust. Begun in 1883. Final decree Oct. 23, 1891.
Attorney-General v. Proprietors of Rowe's Wharf. Suffolk, S. J. C.
Begun in 1882. Information for injunction. Injunction j>e?i-
dente lite granted. Pending.
Attorney-General v. Day Cordage Company. Information for
injunction. Dismissed March 31, 1891.
84 ATTORNEY-GENERAL'S REPORT. [Jan.
The following corporations were reported by the Tax Commis-
sioner as delinquent in making their tax returns under Public
Statutes, chapter 13, section 38, and upon notification from this
department complied with the law : —
^Etna Rubber Mills.
Allen Gymnasium.
Allen and Rowell Company.
Alta Manufacturing Company.
Atherton Machine Company.
Bee Newspaper Company.
Border City Hotel Company.
Boston Oakum Company.
Boston Sand and Gravel Company.
Brockton Gazette Company.
Brookfield Brick Company.
Burleigh Rock Drill Company.
Byfield Manufacturing Company.
Cambridge Safe Deposit Trust Company.
Chamberlain Manufacturing Company.
Clinton Market Company.
Columbia Rubber Company.
Draper Manufacturing Company.
Duncan Leather Manufacturing Company.
Eagle Mill Company.
East Cambridge Land Company.
Fall River Loan and Trust Company.
Falmouth Local Publishing and Printing Company.
Gardner Gas Light Company.
Geo. E. Read Furniture Company.
George H. Wood Company.
H. A. Lothrop Manufacturing Company.
Hampden Watch Company.
Haverhill Ice Company.
Haverhill Iron Works.
Haverhill Paper Company.
Haverhill Safe Deposit and Trust Company.
Holyoke Hydrant and Iron Works.
1892.] PUBLIC DOCUMENT — No. 12. 85
Home Supply Company.
Indian Orchard Company.
J. G. Cupples Company.
Kensett Lath Company.
Kuro Medicine Company.
L. A. May Company.
L. L. Brown Paper Company.
Lancaster Water Company.
Liberty Masonic Association.
Lynn Press Publisliing Company.
Marblehead Building Association.
Middleborough Electric Light and Power Company.
Middleborough Gas and Electric Company.
Middlesex Land Company.
Nantucket Electric Light Company.
Nantucket Electric Street Railroad Company.
National Plaster Company.
Naumkeag Street Railroad Company.
New England Telephone Company.
Northampton Creamery Company.
Orange Electric Light Company.
Pard Co-operative Shoe Company.
Plymouth Electric Light Company.
Quincy Co-operative Granite Company.
Quincy Market Cold Storage Company.
Quinsigamond Lake Improvement Compan3\
Roxbury Certtral Wharf Company.
Rubber Step Manufacturing Company.
Singapore Rattan Company.
South Boston Iron Works.
Springfield Steam Power Company.
Standish Mills.
Suffolk Iron Works.
Syms and Dudley Paper Company.
Traveller Newspaper Publishing Company.
Union Electric Light Company.
Union Marine Railway.
United Manufacturing Company.
86 ATTORNEY-GENERAL'S REPORT. [Jan.
Villa Paint and Ornamental Company.
Wamesit Power Company.
Ware River Manufacturing Company.
Western Union Telegraph Company.
Whitman Electric Company.
Williamstown Gas Company.
Woburn Electric Light Company.
Woonsocket Street Railroad Company.
Worcester Fire Pail Company.
Worcester Wall Paper Company.
The following corporations, after having been reported by the
Tax Commissioner to this Department as delinquent in their tax
returns, were afterwards shown to be in insolvency or to be worth-
less : —
Nantasket Electric Light and Power Company.
Onward Cigar Makers' Co-operative Association.
Standard Pulp Company.
Union Paper Manufacturing Company.
Winona Paper Company.
The following corporations were reported by the Commissioner
of Corporations as delinquent in making return of their certificates
of condition as required by Public Statutes, chapter 106, section
54, and upon notification from this Department complied with
the law : —
A. S. Rogers Shoe Company.
American Cultivator Company.
Athol Electric Lighting and Power Company.
Arlington Co-operative Association.
Boston Multiplex Company.
Budget Publishing Company.
Boston Sand and Gravel Company.
Brockton Gazette Company.
Beverly Farms Boot and Shoe Company.
Cultivator Publishing Company.
Chamberlain Manufacturing Company.
Columbia Rubber Company.
1892.] PUBLIC DOCUMENT — No. 12. 87 |
Diamond Safety Razor Company.
Dedham Water Company.
Ellenville Tanning Company.
Ellerton Fishing Corporation. I
Foster's Wharf Company. j
Fall River Merino Company.
Geo. F. Blake Manufacturing Company.
Haverhill Iron Works. ■
H. A. Williams Manufacturing Company.
Hall Typewiiter Company.
J. Barker & Bros. Manufacturing Company.
Knowles Freeman Fish Company. ■
Leominster Electric Light and Power Company. ;
Lynn Ice Company. j
Marlborough Times Publisiiing Company. "I
Mansfield Co-operative Furnace Company.
Mayall Rubber Company. |
May all Patent Company. ]
North Shore Electric Company.
Otter River Company. "
Owen Paper Company.
Pilgrim Fathers' Hall Association.
Pittsfield Illuminating Company.
Pittsfield Coal Gas Company.
Post Publishing Company. '
Quincy Co-operative Granite Company. i
Riverside Lumber Company.
Readville Rubber Company. ,
Roxbury Stone Company. ]
Syms & Dudley Paper Company.
Villa Paint and Ornamental Company.
Vineyard Haven Marine Railway Company.
Vineyard Haven Watch Company.
The following corporations, having been reported by tiie Com- ^
missioner as delinquent in the returns of condition, were after-
wards shown to be in insolvency, the stock to be worthless, or
the affairs to be in process of winding up : —
88 ATTORNEY-GENERAL'S REPORT. [Jan.
Monson Woolen Company.
New England Wiring and Construction Company.
New England Steam Cooperage Company.
Standard Spindle Company.
Worcester Steel Works.
Proceedings against the following corporations were requested
by the Board of Gas and Ellectric Light Commissioners for failure
to make the returns required by St. 1885, chapter 314, sec-
tion 2 : —
Citizens' Gas Light Company of Quincy. Return made.
Electric Light and Patent Flooring Company. Return made.
Framingham Electric Company. Return made.
Gardner Gas Light Company. Return made.
Milford Electric Light and Power Company. Return made.
Nantucket Electric Light CoInpan^^ Proceedings pending.
Natick Electric Company. Return made.
Natick Gas Light Company. Return made.
Suburban Light and Power Company. Proceedings pending.
The following corporations, having made voluntary application
to the Supreme Judicial Court for dissolution, and having given
the Attorney-General due notice of their petition and the Tax
Commissioner having certified that they were not indebted to
the Commonwealth, the Attorney-General waived the right to be
heard : —
Athol Co-operative Furniture Company.
A. W. Mitchell Company.
Abbot Spinner Company.
Boston Lead Company.
Braintree Lyceum.
Carriage Drivers' Union Association.
Charles Arms Manufacturing Company.
Cambridge Wharf Company.
Dorchester Athenaeum.
Eureka Spindle Company.
Gould & Watson Company.
1892.] PUBLIC DOCUMENT — No. 12. 89
Glendon Company.
Gordon Shoe Manufacturing Company.
J. W. Woodbury Company.
Lamsj^u Store Service Supply.
Lawrence Coffee House Company.
Mclndoe & Strieder Manufacturing Company.
Merrimac Spinning Company.
Norfolk Street Railroad Company.
Northampton Paper Company.
National Sugarine Refining Company.
National Hot Water Heater Company.
New Jersey Bottle Company.
Orange Power Company.
Ober Steam Pipe Jacket Company.
Providence Extractor Company.
Ryder Grate Company.
Republic Mills.
Standard Spindle Company.
Shepard Elwell Company.
Suffolk Agency Company.
Union Gas Light Company.
Union Shuttle Company.
Ware Electric Light Company.
Worcester Co-operative Boot and Shoe Association.
The following corporations, having failed for two successive
years to make the annual statement required by Public Statutes,
chapter 106, section 54, application was made at the suit of the
Commissioner of Corporations to the Supreme Judicial Court for
their dissolution, according to the provisions of Public Statutes,
chapter 106, section 55 : —
American Co-operative Boot and Shoe Company. Pending.
Brown Manufacturing Company. Dissolved July 21, 1891.
Metallic Splice Manufacturing Company. Pending.
Miller's River Gas Light Company. Pending.
Pilgrim Wharf Company. Dissolved Oct. 13, 1891.
90 ATTORNEY-GENERAL'S REPORT. [Jan.
miscella:n^eous cases.
Requiring the Attention of this Department during the Year eyiding
Jan. 20, 1892.
Adams, James K., v. Commonwealth (Cattle Commissioners).
Petition for compensation for care, killing and burial of cer-
tain swine infected with disease. Superior Court, Suffolk
County. Pending.
Anderson, Charles O., et als. v. Mutual One Year Benefit Order
et als. Bill in equity. Temporary injunction. Injunction
dissolved. Suits settled by agreement of parties.
Attorney-General ex.rel. Insurance Commissioner v. Anglo Nevada
Assurance Corporation. Violation of St. 1887, chapter 214^
section 20. Fine of $500. Paid.
Attorney-General ex rel. Treasurer v. Boston Heating Company,
Information for non-payment of coi'poration tax for 1889.
Pending.
Attorney-General ex rel. Commissioner of Corporations v. Boston
Macaroni Manufacturing Company. Non-payment of fee
required by Public Statutes, chapter 106, section 84. Pend-
ing.
Attorney-General v. Lovejoy Store Service Company. Middlesex.
Quo warranto. Pending.
Attorney-General ex rel. Treasurer v. Meigs Elevated Railroad
Company. Information for non-payment of corporation tax
for 1889. Pending.
Attorney-General ex rel. Treasurer v. Meigs Elevated Railroad
Construction Company. Information for non-payment of cor-
poration tax for 1889. Pending.
Attorney-General ex rel. Treasurer v. Mudie Librarj' Compan}^.
Information for non-payment of corporation tax for 1889. In
insolvency. Claim filed.
Attorney-General ex rel. Treasurer v. Norton Manufacturing Com-
pany. Information for non-payment of corporation tax for
1889. In insolvency. Claim filed.
Attorney-General ex rel. Treasurer v. Security Associates. Infor-
mation for non-payment of corporation tax for 1889. Pending.
1892.] PUBLIC DOCUMENT — No. 12. \n
Attorney-General ex rel. Board of Gas and Electric Light Com-
missioners V. Walworth Light and Power Company. Viola-
tion of St. 1887, chapter 382, section 3. Hearing before
single justice. Pending.
Attorney-General ex reJ. Treasurer v. Western Union Telegraph
Company. Information for non-payment of corporation taxes
for 1889. Removed by defendant to Circuit Court of United
States. Tax and interest paid. Information dismissed.
Boston & Albany Railroad Company, petitioner. Suffolk S. J. C.
Petition for recovery of taxes alleged to be illegally paid.
Demurrer. Pending.
Commonwealth v. Fitchburg Railroad Company. Action for rent
under lease of Central Vermont Railroad. Trial in Superior
Court. Exceptions alleged. Settled in favor of Common-
wealth.
Commonwealth v. North Middlesex Savings Bank. Petition for
injunction. Granted Feb. 18, 1891. Injunction dissolved.
Commonwealth ex rel. George S. Merrill, Insurance Commissioner,
V. Pioneer Life and Casualty Insurance Company. Suffolk.
Petition for injunction and receiver, under St. 1890, chapter
421, Injunction made perpetual. Homer Albers appointed
receiver.
Commonwealth ex rel. Savings Bank Commissioners v. Stock-
bridge Savings Bank. Petition for injunction and appoint-
ment of a receiver. Injunction issued, and F. A. Hobbs
appointed receiver. First dividend of thirty-three and one-
third per cent. paid. Second dividend of sixteen and two-
thirds per cent, decreed by the court. Pending.
Commonwealth by Board of Commissioners of Savings Bank v.
Suffolk Trust Company. Petition for injunction and receiver.
Granted. J. Haskell Butler, Esq., appointed receiver.
Commonwealth v. Inhabitants of Williamstown. Action to re-
cover interest on scrip or certificates of indebtedness issued
by said town in payment of its subscription to the capital
stock of the Troy & Greenfield Railroad. Trial in Superior
Court, and judgment for Commonwealth. Carried to full
court on exceptions and report. Argued but not decided.
Connors, Thomas, Estate of. Deceased intestate. Commonwealth
disclaims right to property by escheat.
Employers' Liability Insurance Company, Limited, v. George S.
Merrill, Insurance Commissioner. Petition to Supreme Ju-
dicial Court to determine validity of policies issued by the
petitioner, a foreign insurance company, indemnifying owners
of passenger elevators against loss occasioned by injuries to
passengers using said elevators, and indemnifying owners of
horses and vehicles from loss by reason of injuries to persons
using them under St. 1890, chapter 304, and also policies of
general or public liability. Heard before single justice, and
reported. Argued before full court and decided in favor of
the petitioner.
92 ATTORNEY-GENERAL'S REPORT. [Jan.
Fogg, George, et ah. v. Golden Lion et al., and Treasurer of Com-
monwealth. Petition in equity. Petition dismissed.
Kingman, Hosea, et als., petitioners. Petition for the appoint-
ment of commissioners to determine the proportions which the
several cities are to pay to defray the expense of the system
of sewerage established by St. 1889, chapter 439. Hearing
in Supreme Judicial Court before single judge and reported
to the full court. Petition granted. Commissioners ap-
pointed and their report made.
Massachusetts Agricultural College v. George A. Marden, Treas-
urer. Petition for mandamus to compel the treasurer of the
Commonwealth to pay to the petitioner certain moneys alleged
to be due to it under the provisions of Acts of Congress.
Rule to parties interested to show .cause. In charge of
private counsel. Argued but not decided.
Massasoit Medical Company, in re. Violation of St. 1884, chapter
330. Referred to district attorney for Suffolk district, Dec.
14, 1891. Return filed and complaint of commissioner of
corporations withdrawn.
Merchants' Electric Light Company, petitioner, v. Board of Gas
and Electric Light Commissioners. Petition for mandamus.
Pending.
Moore, Mary J., et als., petitioners, v. Commonwealth. Suffolk
S. J. C. Begun in 1885. Damages for flats taken by the
Harbor and Land Commissioners. Pending.
Mutual One Year Benefit Order v. George S. Merrill, Insurance
Commissioner. Petition for mandamus to compel respondent
to endorse requisition upon treasurer of the Commonwealth
for the payment of money. Hearing before single justice.
Reported to the full court, and the report discharged and the
petition dismissed.
Postal Telegraph Cable Company. Complaint against by com-
missioner of corporations for failure to file certificate as
required by St. 1884, chapter 330. Pending.
Robertson, George J., et als. v. Mutual One Year Benefit Order,
and George A. Marden, Treasurer, et als. Petition for
injunction. Granted. Suit settled by agreement of parties.
Injunction dissolved.
Russell, P^dward J., warden, v. Tucker Manufacturing Company.
S. J. C. Action of contract for prison labor. Defendant in
the hands of a receiver, and the State secured by special
bond. Pending.
Tantum, James D., et als. v. Progressive Benefit Order, Treasurer
of Commonwealth et als. Circuit Court of United States.
Pending.
Titcomb, George II., v. Cape Cod Ship Canal Company, George A.
Marden, treasurer, et al. Petition for injunction to restrain
the Treasurer of the Commonwealth from the payment of
money under St. 1883, chapter 259, and St. 1891, chapter
397. Answer filed. Pending.
1892.] PUBLIC DOCUMENT — No. 12. U
The following-named eases, which appeared as pending in the
last annual report of this Department, have been disposed of as
follows : —
William H. Pratt, petitioner, v. Commonwealth. Petition for a
jury to assess damages for the taking of land at Sherborn
and Framingham. Middlesex. Referred to district attorney.
Tried and verdict for petitioner.
A. H, Ordway, petitioner, v. Commonwealth. Petition for a jury
to assess damages for the taking of land at Sherborn and
Framingham. Middlesex. Same as above.
James Daisley, petitioner, v. Commonwealth. Petition for a jury
to assess damages for the taking of land at Sherborn and
Framingham. Middlesex. Same as above.
Petition of city of Boston for assessment of damages for land
taken by Metropolitan Sewerage Commissioners. Referred
to district attorney of Suffolk County. Pending.
The Treasurer of the Commonwealth v. H. Burr Crandall, guardian
of Margaret Crawford. Suit for board of ward in Northamp-
ton Lunatic Hospital. In charge of district attorney for
Suffolk. Pending.
Treasurer of the Commonwealth v. Joseph H. Sears. Suit for
board of Rosa F. Sears in Dauvers Lunatic Hospital. Set-
tled.
Treasurer of the Commonwealth v. Town of Peru. Suit for board
of pauper. Settled.
Treasurer of the Commonwealth v. City of Springfield. Suit for
board of pauper in Northampton Hospital. Settled.
Treasurer of the Commonwealth v. Town of Buckland. Suit for
board of pauper in Northampton Hospital. In charge of the
district attorney for North-western District. Pending.
Treasurer of the Commonwealth v. Town of Ludlow. Suit for
board of pauper in Northampton Hospital. In charge of
district attorney for Western District. Pending.
Treasurer of the Commonwealth v. City of Cambridge. Suit for
board of pauper in Worcester Hospital. In charge of district
attorney for Northern District. Pending.
Treasurer of the Commonwealth v. City of Newburyport. Suit
for board of pauper in School for the Feeble-minded. Set-
tled.
The Attorney-General ex rel. Insurance Commissioner v. Massa-
chusetts Standard Benefit Company. S. J. C. Violation of
St. 1885, c. 183. Injunction issued. Receiver and master
appointed. First account filed. Final decree Aprir27, 1891.
Treasurer of the Commonwealth v. Town of Canton. Suit for
board of pauper in Taunton Hospital. Settled.
94 ATTORNEY-GENERAL'S REPORT. [Jan.
Treasurer of the Commonwealth v. Town of South Hadley. Suit
for board of pauper in Northampton Hospital. In charge of
district attorney for North-western District. Pending.
Treasurer of the Commonwealth v. Town of Westford. Suit for
board of pauper in Taunton Hospital. Argued before the full
court and decided in favor of the Commonwealth.
Treasurer of the Commonwealth v. Town of Peabody. Suit for
board of pauper in Worcester Hospital. In charge of the
district attorney for the Eastern District. Pending.
Petition of Leonard R. Cutter for damages for property taken at
19 Mt. Vernon Street, under St. 1888, chapter 449. Supe-
rior Court, Suffolk. In charge of the district attorney,
Suffolk County.
Francis W. Lawrence, petitioner v. Commonwealth. Petition for
jury to assess damages for the taking of land by the Metro-
politan Sewerage Commissioners. In charge of the district
attorney for the South-eastern District. Pending.
Francis W. Lawrence, et al., trustees, petitioners, v. Common-
wealth. Petition for jury to assess damages for the taking of
land by the Metropolitan Sewerage Commissioners. Same as
above.
George Wheatland, Jr., petitioner, v. Commonwealth. Petition
for jury to assess damages for the taking of laud by the Met-
ropolitan Sewerage Commissioners. Same as above.
The Attorney-General ex rel. Insurance Commissioner v. United
States Mutual Relief Association. Petition for appointment
of receiver. E. H. Moore appointed. J. F. Colby appointed
master. Reports filed and accepted. Dividends paid. Final
decree 1891.
Hannah B. Hall, administratrix of the estate of George M. Hall,
V. A. W, Locke et al. managers Troy & Greenfield Railroad
and Hoosac Tunnel. Action for damage for personal injuries.
Begun in 1885. In charge of the counsel for the Fitchburg
Railroad Company, which has assumed the defence of the case.
Hannah B. Hall, administratrix of the estate of Agnes M. Hall,
V. Augustus W. Locke et al. managers, etc. Same as above.
Charles E. Stevens et al., Commissioners of Dudley Indians, v.
Commonwealth. S, J, C, Action for money alleged to be
held in trust by the State. Settled. See Resolves 1890,
chapter 69.
The following-named cases under the supervision of tlie Attor-
ney-General, but conducted by i)rivate counsel, which appeared as
pending in the last annual report of this department are found to
have been previously disposed of as follows : —
Attorney-General ex rel. Hannori Aid rich et al. v. Perkins Street
Baptist Society. Suffolk, Nov, 20, 1890. Defendant's
demurrer sustained, and final decree.
18^2.] PUBLIC DOCUMENT — No. 12. 95
Attorney-General ex rel. v. William B. Washburne et al. Franklin.
Charitable trust. Dismissed Sept. 5, 1883.
Attorney-General ex rel. Hawes Place Congregational Church and
the Second Hawes Congregational Society v. Trustees of the
Hawes Fund of Boston. Begun in 1886. Not entered in
court.
West Parish in Barnstable et al. v. Inhabitants of Barnstable
et al. and Attorney-General. Begun in 1886. Dismissed in
May, 1888.
Attorney-General ex rel. Samuel Patch et al. v. Henry P. Sherman
et al. Commissioners of public buildings. Quo warranto to
try title. Begun in 1885. Dismissed March 9, 1886.
Francis J. Stratton et al. v. Attorney-General, Physio-Medical
College et als. Suffolk. Charitable trust. Decree for plain-
tiffs June 20, 1888. See 149 Mass. 505.
George White et al., executors, v. City of Boston, et al. Suffolk.
Begun in 1885. Final decree April 7, 1887.
In re Estate of William Hale. Suffolk. Probate Court. Claim
of next of kin. Begun in 1885. Settled by decree in 1887.
In re Society for promoting Christian knowledge. Petition for
transfer of funds. Begun in 1887. Final decree Nov.
21, 1888.
In re Estate of Sarah T. Chaplin. Middlesex. Probate Court.
Petition for interpretation of legacy to Old Ladies' Home,
Cambridge. Begun in 1887. Decree for Cambridge Home
for Aged People Jan. 3, 1888.
Attorney-General ex rel. Charles L. Ayer et al. v. Fiskdale Mills.
Worcester. Information for injunction to prevent the draw-
ing of water from Alum Pond. Begun Oct. 12, 1888. Dis-
missed Dec. 11, 1890.
Trustees of William Appleton estate. Probate Court. Petition
for instructions as to change in investment of funds. Settled.
Petition of John .J Williams for leave to sell real estate in Lowell.
Middlesex. S. -J. C. Begun in 1888. Dismissed without
costs May 7, 1890.
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