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Full text of "Report of the attorney general for the year ending .."

PUBLIC DOCUMENT . . . . 



CommontocaUb of Utassacbustfts. 

ANNUAL REPORT 



ATTOEISTET- GEISTER AL 



Yeak Ending Jaxuaky 17, 1893. 



teoSTON : 

WRIGHT & POTTER PltlNTING CO., STATE PPvINTERS, 

18 Post Office Square. 

1893. 



PUBLIC DOCUMENT .... .... No. 12. I 



Commonlucaltlj uf glassacljits^tts* 



ANNUAL EEPORT 



ATTOEl^ET- aENEE AL 



Year E^^ding January 17, 1893. 



BOSTON : 

WRIGHT & POTTER PRINTING CO., STATE PRINTERS, 

18 Post Office Square. 

1893. 

c 



Dii 



Commautoealtb of llkssacbusetts, 



Attornbt-Gteneral's Department, 

Commonwealth Building, Boston. 

To the Honorable the Speaker of the House of Representatives. 

I transmit herewith to the General Court the report of 
this department for the year ending Jan. 17, 1893. 

Very respectfully, your obedient servant, 

ALBERT E. PILLSBURY, 

Attorney- General. 



Ct0nTmontomItl3 ai ||kssatljusetts. 



Attohney-General's Department, 
Commonwealth Building, Boston, Jan. 18, 1893. 

To the Honorable the General Court. 

In compliance with section 9 of chapter 17 of the Public 
Statutes, I submit the report of this department for the year 
ending Jan. 17, 1893. 

Cases requiring the attention of the department during the 
year, to the number of 619, are tabulated below : — 

Indictments for murder, 14 

Exceptions and reports in criminal cases, 86 

Informations ex oflScio, 7 

Informations upon relation of public officers, 94 

Applications for grant of informations upon relation of private 

persons, 3 

Writs of error, 3 

Petitions for habeas corpus, 8 

Petitions for abolition of grade crossings, 28 

Requisitions for fugitives from justice, ...... 51 

Voluntary jH-oceedings for dissolution of corporations, ... 33 

Tax returns of corporations enforced without suit, .... 106 

Informations for corporation taxes for 1892, ..... 73 

Informations for other returns not classified, 6 

Collections made without suit, 44 

Public charitable trusts and collateral legacy taxes, .... 15 

Miscellaneous cases, 15 

Claims for penalties against gas comjjanies filing late returns, . . 33 

619 

The reduction in the number of proceedings against delinquent 
corporations in 1892, as compared with 1891 and the last pre- 
ceding years, is due to the enforcement and collection, in and 
since 1891, of the full costs of these proceedings, instead of a 
nominal charge of $3 in lieu of costs, as had been the custom; 
which stimulated the making of the returns and reduced the 
number of delinquents. 



vi ATTORNEY-GENERAL'S REPORT. [Jan. 

Indictments for Murder. 

Indictments for murder pending at the date of the last an- 
nual report have been disi30sed of as follows : — 

Samuel Alexander of Chicopee, indicted in Hampden, 
Sept. 30, 1891, for the murder of James Nesbitt, July 22, 
1891, was arraigned May 12, 1892, and Messrs. W. H. Brooks 
and W. Hamilton were assigned as counsel. On the 30th of 
June, 1892, upon an inquest held on motion of the Common- 
wealth, he was adjudged insane, and committed to the State 
Lunatic Hospital at Worcester. The indictment remains on 
file. 

Raffaele Scorpio of Fall River, indicted in Bristol for the 
murder of Matthew Cullen at Fall River, June 28, 1891, with- 
drew his plea of not guilty, and pleaded guilty of manslaughter 
Feb. 10, 1892, which plea w'as accepted on condition that the 
maximum penalty would be taken without objection, and the 
defendant was sentenced by Braley, J., and committed to the 
State Prison for twenty years. 

Anna Makepeace of Avon, indicted in Norfolk, Dec. 11, 
1891, for the murder of her husband, Clarence Makepeace, at 
Avon, Sept. 25, 1891, was afterward indicted for manslaughter 
for the same offence, whereupon the indictment for murder 
was nol. pros'd. 

Wallace W. Holmes of Chicopee, indicted in Hampden, 
Dec. 24, 1891, for the murder of his wife, Nellie F. Holmes, 
at Chicopee, Sept. 1, 1891, was arraigned May 10, 1892, and 
pleaded not guilty, and Messrs. A. L. Green and M. F. Druce 
were assigned as counsel. He was tried at Springfield, June 
27-30, 1892, before Mason, C. J., Dewey and Hopkins, JJ., 
and was convicted of murder in the first degree. A motion 
tor a new trial was heard and overruled. Exceptions were 
taken and argued Sept. 27, 1892, and were overruled Oct. 20, 
1892 ; and on the 28th of October Holmes was sentenced to 
death, to be executed Feb. 3, 1893. 



1893.] PUBLIC DOCUMENT — No. 12. vii 

William Cor of Westfield, indicted in Berkshire, Jan. 16, 
1892, for the murder of John Whalen of Washington, Aug. 30, 

1891, was arraigned March 4, 1892, and pleaded not guilty, 
and Messrs. H. C. Joyner and C. J. Parkhurst were assigned 
as counsel. He was tried at Pittsfield, March 21-26, 1892, 
before Mason, C. J., Aldrich and Hammond, JJ., and was 
convicted of murder in the first degree. Exceptions were taken, 
which were argued September 13, and overruled Oct. 20, 

1892. On the 28th of October, 1892, Coy was sentenced to 
death, to be executed Jan. 27, 1893. On application to the 
governor and council commutation of sentence was refused, 
and a respite to February 24, 1893, granted. 

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 Jan. 18, 1892, and M. O. Adams, 
Esq., was assigned as counsel. Steadman withdrew his plea 
of not guilty, April 18, 1892, and pleaded guilty of man- 
slaughter, which was accepted, and he was sentenced by 
Fessenden, J., and committed to the State Prison for seven 
years. 

Roger F. Scannell of Boston, indicted in Suffolk, Jan. 8, 
1892, for the murder of Josephine Brown, at Boston, Dec. 24, 
1891, disappeared upon the commission of the crime, and has 
never been apprehended. 

Daniel H. Wilson of Boston, indicted in Suffolk, Dec. 6, 
1890, for the murder of Annie C. Wilson, at Boston, Oct. 18, 
1890, was held in jail awaiting trial, in the expectation of the 
recovery of a witness whose testimony was essential and who 
had become insane, until Sept. 28, 1892, when, upon the 
application of counsel, there being no near prospect of the 
recovery of the witness so as to be able to testify, Wilson was 
discharged from custody by the court, under the statute, upon 
his own recognizance. The indictment remains on file and 
liable to be tried if the insane witness should recover. 

Guy Koswell Brown of Newburyport was indicted in 
Essex, Jan. 30, 1892, for the murder of David B. Sanborn 



viii ATTORNEY-GENERAL'S REPORT. [Jan. 

of Salisbury, Jan. 14, 1892. He was arraigned Feb. 10, 1892, 
and pleaded not guilty, and Messrs. Henry P. Moulton of 
Salem and H. G. Johnson of Newburyport were assigned as 
counsel. Upon further investigation of the case, a new indict- 
ment was returned against him May 2, 1892, as accessory 
before the fact to the same murder, and May 10, 1892, he 
pleaded guilty in the second degree to this indictment, and was 
sentenced and committed to the State Prison for life ; and 
thereupon the original indictment was nol. pros'd. 

James Albert Trefethen and William H. Smith of 
Medford were indicted in Middlesex, Feb. 12, 1892, for the 
murder of Deltena J. Davis, at Medford, Dec. 23, 1891. 
They were arraigned Feb. 24, 1892, and pleaded not guilty, 
and Messrs. John D. Long and Marcellus Coggan were 
assigned as counsel. Trial at Cambridge, before Mason, C. 
J., Blodgett and Hammond, JJ., April 25-May 4, 1892. 
Smith was acquitted and Trefethen was convicted of murder 
in the first degree. A motion for a new trial was heard and 
overruled. Exceptions taken by the defendant Trefethen were 
argued in the supreme judicial court for the Commonwealth at 
Boston, Sept. 6, 1892, and were sustained, and the verdict 
against Trefethen set aside. This case calls for further com- 
ment, which must be deferred until it is finally disposed of. 

James McDougall, Jr., of Fall River, was indicted in Bris- 
tol, June 9, 1892, for the murder of James McDougall, Sr., 
at Fall River, Jan. 29, 1892. He was arraigned June 20, 
1892, and refused to plead. By direction of the court a plea 
of not guilty was entered, and Messrs. J. W. Cummings and 
E. Higginson were assigned as counsel. On Oct. 31, 1892, 
the plea of not guilty was withdrawn and a plea of manslaughter 
accepted, and the defendant was sentenced by Hammond, J., 
and committed to the State Prison for ten years. 

In this case the death of the senior McDougall did not occur 
until June. In the mean time McDougall, Jr., had pleaded 
guilty of assault with intent to kill, and been sentenced and 
committed to the reformatory for six years, where he was 
serving at the time of his father's death and the finding of the 
indictment for murder. 



1893.] PUBLIC DOCUMENT — No. 12. ix 

William E. Cunningham of Cambridge was indicted in 
Middlesex, June 10, 1892, for the murder of Margaret Wil- 
liams, otherwise called Maggie Williams, at Cambridge, April 
25, 1892. He was arraigned June 29, 1892, and pleaded not 
guilty, and Messrs. T. J. Gargan and W. A. Morse were as- 
signed as counsel. On Oct. 22, 1892, the plea of not guilty 
was withdrawn and a plea of guilty of murder in the second 
degree accepted, and he was sentenced and committed to the 
State Prison for life. 

Daniel Cahill of Hatfield was indicted in Hampshire, June 
29, 1892, for the murder of Ann Larkin of Hadley, June 16, 
1892. He was arraigned July 1, 1892, and pleaded not guilty, 
and Messrs. J. B. O'Donnell and J. T. Keatino: were assig^ned 
as counsel. He was tried at Northampton, Dec. 19-22, 1892, 
before Mason, C. J., Hopkins and Maynard, JJ. I was dis- 
abled by illness early in the trial, which thereafter was ably con- 
ducted on the part of the Commonwealth by District Attorney 
Aiken. The defence, which rested principally on Cahill's own 
testimony, was that the homicide was accidental. The result 
was an acquittal. 

Martino Casina, otherwise called Martin Casina, of Great 
Barrington, was indicted in Berkshire, July 11, 1892, for the 
murder of John Dellia, at Great Barrington, July 4, 1892. He 
was arraigned July 22, 1892, and pleaded not guilty, and 
Messrs. H. C. Joyner and C. J. Parkhurst were assigned as 
counsel. On Nov. 28, 1892, before Dewey, J., the plea of 
not guilty was withdrawn and a plea of manslaughter accepted, 
and he was sentenced and committed to the State Prison for 
four years. 

Charles E. Adams, otherwise called Charles Augustus 
Edwards, of Lenox, was indicted in Berkshire, July 11, 1892, 
for the murder of Louis Lussier, at Lenox, Jan. 16, 1892. 
He was arraigned July 22, 1892, and pleaded not guilty, and 
Messrs. H. C. Joyner and C. J. Parkhurst were assigned as 
counsel. On Nov. 28, 1892, before Dewey, J., the plea of 
not guilty was withdrawn and a plea of manslaughter accepted, 
and he was sentenced and committed to the State Prison for 
twelve years. 



X ATTORNEY-GENERAL'S REPORT. [Jan. 

Massimino Repucci of Boston was indicted in Sufiblk, Aug. 
6, 1892, for tine murder of Luigi Del'Orfano, at Boston, July 
11, 1892. He was arraigned Sept. 20, 1892, and pleaded not 
guilty, and Messrs. J. R. Smith and E. R. Anderson were as- 
signed as counsel. Nov. 9, 1892, the plea of not guilty was 
withdrawn and a plea of guilty of murder in the second degree 
accepted, and he was sentenced and committed to the State 
Prison for life. 

The following indictments for murder are pending: — 

August Langner of Dedham was indicted Sept. 12, 1891, 
for the murder of Mary Emerson, at Dedham, June 2, 1891. 
He disappeared immediately after the homicide, but was ap- 
prehended in New York in October, 1892. He was arraigned 
Oct. 28, 1892, and pleaded not guilty, and Messrs. Henry E. 
Fales and C. C. Mellen were assigned as counsel. 

Charles Abraham of Clarksburg was indicted in Berkshire, 
July 11, 1892, for the murder of Augustine Abraham, other- 
wise called Augustina Abraham, otherwise called Christina 
Abraham, at Clarksburg, June 17, 1892. 

Isaac Benoit, otherwise called Isaac Joseph Benoit, other- 
wise called Joseph Benoit, of Clarksburg, was separately in- 
dicted at the same time as accessory before the fact to the same 
homicide. They were arraigned July 22, 1892, and pleaded 
not guilty, and Messrs. M. E. Couch and C. J. Parkhurst were 
assigned as counsel. Trial was appointed for Nov. 28, 1892, 
but had to be deferred on account of death in the family of one 
of the counsel. 

Ellen M. Gloster of Weymouth was indicted in Norfolk, 
Sept. 9, 1892, for the murder of her infant child at AVeymouth, 
March 5, 1892. She was arraigned Dec. 28, 1892, and pleaded 
not guilty, and Messrs. Edward Avery and Albert P. Worthen 
were assigned as counsel. 

Richard Powell of Somerville was indicted in Middlesex, 
Oct. 17, 1892, for the murder of George W. Brawn, at Somer- 
ville, Dec. 22, 1889. He was arraigned Nov. 1, 1892, and 



1893.] PUBLIC DOCUMENT — No. 12. xi 

pleaded not guilty, and John B. Goodrich, Esq., was assigned 
as counsel. 

Edward Beauregard, otherwise called Edward Begor, 
otherwise called Ed. Begor, of Orange, was indicted in Frank- 
lin, Nov. 14, 1^92, for the murder of Abigail Rogers, at Wen- 
dell, Sept. 4, 1892. He was arraigned Nov. 22, 1892, and 
pleaded not guilty, and Messrs. J. A. Titus and E. Bicknell 
were assigned as counsel. 

Lizzie Andrew Borden was indicted in Bristol, Dec. 2, 
1892, for the murder of Andrew Jackson Borden and Abby 
Durfee Borden, at Fall River, Aug. 4, 1892. 

This case, in its earliest stage, has been the subject of public 
discussion and comment, in the newspapers and elsewhere, to 
an unprecedented extent, and with a degree of license calculated 
to prejudice the case and pervert the course of justice. The 
gross impropriety of some of the public statements relating to 
the case may very properly lead to action of the Court or of 
the Legislature. 

Capital Trials and Criminal Appeals. 
The transfer to the Superior court of the trial of capital 
crimes, which was regarded by many as a doubtful if not 
dangerous experiment, has now been tested, and I think 
approved, by a year's experience. In the thirteen capital cases 
tried or otherwise disposed of in that court during the past 
year, the decorum of the proceedings has been as effectually 
maintained and the rights of the accused as carefully guarded 
as under the former system ; while, with a single exception 
for which that court is not responsible, the results indicate that 
the efficiency of this most important branch of criminal justice 
has been promoted by the change. The transfer of these cases 
to the Superior court puts them into the charge of the district 
attorneys, who represent the Commonwealth in that court ; but 
the statute still requires the attorney-general to appear in the 
trial. This requirement is now anomalous, and may well be 
dispensed with, as neither essential to nor in harmou}' with the 
present system. There are other reasons for dispensing with 
it. The business of this department is now such, in amount 
and character, that the efficient discharge of the more important 



xii ATTORNEY-GENERAL'S REPORT. [Jan. 

duties of the attorney-genenil, which cannot properly be dele- 
gated to assistants, requires that he be relieved at least of the 
compulsory trial of capital cases, leaving it to the district 
attorneys to invoke his assistance, if needed, in cases of unusual 
difficulty or importance when his other duties will permit him 
to attend. There are, I believe, but four States in the Union in 
which the attorney-general is required, either by law or by cus- 
tom, to try capital cases to the jury. It has been so practised in 
Massachusetts principally, I presume, because these trials have 
heretofore been held in the Supreme court, where the attorney- 
general ordinarily represents the Commonwealth. The civil 
business of this office has more than quadrupled within ten years, 
and not only has it become impracticable for the attorney- 
general to give any attention to private business, as he is sup- 
posed and has been accustomed to do, but it is no longer within 
the capacity of a single man, without overwork, to perform, with 
a reasonable degree of fidelity and efficiency, that part of the 
civil duties of the office which ought to be attended to by the 
attorney-general in person, with the additional and constantlj' 
increasing burden of the capital cases. 

It is a logical incident of the transfer of these cases to the 
Superior court to leave their entire management to the district 
attorneys. It is desirable also in order to avoid an embarrassing 
and ot)jectionable division of responsibility ; and we have the 
experience of 1843-1849, when the office of attorney-general 
did not exist, to prove that the whole criminal business of the 
State may safely be left to the local prosecutors. I believe, 
too, that the superstitious deference which we have paid to 
murder, by putting it into the highest court for trial, before 
two or more judges, by juries specially summoned, under the 
management of the principal law-officer of the State, thus 
investing the accused with a dignity and importance above the 
level of common criminals, is wholly unnecessary to the pro- 
tection of the innocent, and adds to the difficulty of convicting 
the guilty ; and that it will facilitate the punishment of murder 
without danger to any rights, to put the prosecution of it upon 
the same footing as that of other crimes. 

In my last report I recommended, for reasons there stated, 
that the criminal appeals should hereafter be argued by the 



1893.] PUBLIC DOCUMENT — No. 12. xiii 

district attorneys. Although no action was taken upon the 
recommendation, a majority of the district attorneys then in 
otBce voluntarily undertook this duty. I have no doubt that 
time and experience will approve the practice, and that under 
it the number of appeals actually prosecuted will be much 
reduced, and that they will be better argued and with less 
labor. But as much of this work can be and usually has been 
left to the assistants of the attorney-general, while the trial 
of capital cases cannot be, the call to be relieved of the latter 
is more imperative. I am satisfied, however, that the time is 
near, if it has not already come, when it will be expedient 
to relieve this department of all criminal business. 

Time of Capital Trials. 
The increasing number of indictments for murder, and the 
inconvenience necessarily involved in arranging for their trial, 
make it advisable to provide that section 38 of chapter 213 of 
the Public Statutes shall not apply to capital cases, leaving the 
time of trial to be governed by section 4 of chapter 379 of the 
Acts of 1891. It is not certain, indeed, that this section of 
the Public Statutes applies to capital cases, as the other pro- 
vision may possibly be construed to be exclusive ; but the 
question should not be open to doubt. 

Improper Disclosure of Criminal Evidence. 
Recent occurrences indicate the need of legislation to pre- 
vent the premature or unwarrantable disclosure, by officers or 
agents of the government engaged in the prosecution of crime, 
of evidence or information in their possession for that purpose, 
or the procuring or attempting to procure such disclosure. 
These offences are becoming common, and they not only dis- 
turb the course of justice but are liable in extreme cases to 
defeat the prosecution and punishment especially of the more 
notorious crimes. 

The Oleomargarine Law. 
In the cases of Plumley, petitioner for habeas corpus, and 
Commonwealth v. Huntley et al., which were awaiting decision 
at the time of my last report, the constitutionality of the oleo- 
margarine law, chapter 58 of the Acts of 1891, has been 



xiv ATTORNEY-GENERAL'S REPORT. [Jan. 

affirmed by the supreme judicial court, and the prosecutions 
sustained. A writ of error has been taken by the defendants 
in each case to the supreme court of the United States, where 
the cases are now awaiting argument ; and I hope to have them 
advanced so that they can be heard and determined at the 
present term of the court. The oleomargarine interests have 
also sought, by a bill in equity in the circuit court of the 
United States in this district, to enjoin the inspector of milk in 
Boston from enforcing the oleomargarine law, on alleged con- 
stitutional and other grounds ; in which case I have appeared 
for the Commonwealth and shall ask to be heard in support of 
the law. 

The Mileage Ticket Law. 

Under chapter 389 of the Acts of 1892, which has not been 
complied with by an}'^ railroad in the Commonwealth, I filed 
informations in the supreme judicial court, as soon as the 
purpose to disregard the statute became apparent, against the 
Boston & Albany, Old Colony, Boston & Maine, Fitchburg, 
New York & New England and Connecticut River Railroad 
Corporations, to compel obedience to the law. The constitu- 
tionality of the act is contested by the railroads upon several 
grounds ; among others, that it is in violation of the legal 
tender clause, the commerce clause, and the fourteenth amend- 
ment, of the Constitution of the United States. I endeavored, 
but by reason of illness was unable, to get these cases into 
position for argument before the full bench at the January ses- 
sion. I now hope to have them ready and advanced for argu- 
ment at the beginning of the March session ; in which case a 
decision may possibly be had in season for action by the Legis- 
lature should any further action be deemed necessary or 
desirable. 

The Lobby Law. 

In all the cases reported to me by the Secretary of the Com- 
monwealth as delinquent under section H of chapter 45^5 of the 
Acts of 1890 as amended by chapter 223 of 1891, it appeared 
upon investigation that the failure to make the return was due 
only to some inability or inadvertence and was in no case 
wilful ; and as it was furnished in each case as soon as practi- 



1893.] PUBLIC DOCUMENT — No. 12. xv 

cable under the circumstances, no prosecutions were called for 
or were instituted. The weakness of the law is more in the 
omission to register than in the unwillingness of those who 
register to make the required returns. 

The Lobster Law. 
In view of the recent decision under chapter 212 of the Acts 
of 1884, in Commonwealth v. Wright, in Barnstable, that an 
officer has no authority to arrest without warrant, upon view 
of the offence, for any violation of the law which does not 
involve an actual breach of the peace, I recommend, as essen- 
tial to the enforcement of the law and as conforming to many 
precedents in legislation upon similar subjects, that such 
authority be conferred upon all officers qualified to serve crimi- 
nal process. 

Delinquent Corporations. 
I respectfully renew my recommendation of last year that 
chapter 330 of the Acts of 1884 be supplemented by such leg- 
islation as is necessary to make it effective to compel the per- 
formance of the acts thereby required of foreign corporations ; 
against some of which it has been found to be difficult or 
impossible to enforce the statute in its present form. 

Opinions. 
I annex hereto copies of such of the written opinions of the 
year as may properly be made public, and may be of interest 
or useful for future reference. 

Messrs. George C. Travis and Charles N. Harris continue to 
serve efficiently as first and second assistant attorney-general, 
respectively. 

ALBERT E. PILLSBURY, 

Attorney- Oeneral. 



OPINIONS 



[Service medals, etc., in the railitia, under Statute 1891, chapter 232, 
section 3 ; — only for continuous uninterrupted service of nine or 
more years.] 

Attorney-General's Department, 
Boston, Jan. 26, 1892. 

Major-General Samuel Dalton, Adjutant-General. 

Sir; — In reply to your request to be advised of the proper 
construction of section 3 of chapter 232 of the Acts of 1891, re- 
lating to service medals, I have to say that in my opinion the 
"nine years' continuous honorable service," which is to be re- 
warded with a medal, must be construed as nine consecutive 
years of service without interruption ; and that the " additional 
five years' like service," which is rewarded with a bar or clasp, 
must also be five consecutive years of service without interrup- 
tion, and must immediately precede or follow, without interrup- 
tion, the period of nine years. The statute must be taken as 
designed to confer a distinction for continuous honorable service 
of not less than nine years ; and the bar or clasp is not intended 
as a distinction to be conferred for five years' service by itself, 
but for that period of continuous service in addition to the other 
period. 

Very respectfully, your obedient servant, 

A. E. PiLLSBURY, Attorney-Geoii'.ral. 



[Quorum of each branch of the legislature under the 33d amend- 
ment of the Constitution consists of a majority of the whole 
membership. Permanent organization requires a quorum. A 
less number may organize temporarily.] 

Attorney-Gkneral's Department, 
Boston, Feb. 1, 1892. 

To the Honorable the Speaker of the House of Representatives. 

In compliance with the order of the honorable House of Rep- 
resentatives of January 27, requesting my opinion " with reasons 
therefor" upon certain questions of the construction of amend- 
ment xxxiii. of the Constitution, establishing the quorum of 



2 ATTORNEY-GENERAL'S REPORT. [Jan. 

the two branches of the legislature, I respectfully submit the 
followiug : — 

First. The words "a majority of the members" mean, in 
my opinion, a majority of the whole membership established by 
the Constitution. The weight of authorit}' as to bodies composed 
of a fixed number of members, especially legislative bodies, is in 
favor of this construction. The judicial decisions are compara- 
tively few, but they are generally in this direction. Under the 
provision of the Constitution of the United States that a major- 
ity of each house of Congress shall constitute a quorum, it was 
there held almost without exception, from the foundation of the 
government, that a quorum consists of a majority of the entire 
Senate and House, until the pressure of public necessity at a 
icritical period of the war led to a temporary departure from this 
rule. The writers of highest authority on parliamentary law 
express the same view. There are other reasons for it, of equal 
-force, arising both from principle and convenience. It is im- 
portant that the quorum be a fixed and certain number. If any 
'Other construction is adopted, the quorum varies from time to 
time according to a multitude of circumstances, depending on 
the chances of death, resignation, declination, ineligibility, fail- 
•'Ure to elect, or failure to qualify. It is not to be supposed that 
•;the legislatures and the people, who enacted this change in the 
Ifuudamental law, intended to introduce into it such elements of 
uncertainty and confusion, or to leave the number which may 
constitute a quorum at any particular time to depend upon 
questions of fact which may be doubtful or in dispute, and 
which it may often be difficult or impossible to correctly deter- 
mine. 

The constitutional amendment was drawn and enacted in view 
of the cominon rule that in the absence of any express provision 
a quorum consists of a majority of all the members constituting 
the body in question ; which is often expressed in the language 
of this amendment. If it had been intended to change this rule, 
and to leave the quorum a variable number, depending on some 
or all of the contingencies above suggested, I think this intention 
would have been more clearly expressed ; and that it is not to be 
inferred from the use of language which ma}^ be and is frequently, 
if not universally, taken to mean a majority of the whole mem- 
bership. 

It is worth remarking, also, that the reason commonly assigned 
for the requirement of a majority as a quorum is to prevent the 
existence at the same time of two bodies, each claiming to be 
the rightful body ; and this reason of the rule can be absolutely 



1893.] PUBLIC DOCUMENT— No. 12. 3 

satisfied only by construing a majority of the members to mean 
a majority of tlie whole membership. 

It follows that, in my opinion, the second, third, fourth and 
fifth questions submitted by the honorable House must be an- 
swered in the negative. 

Sixth. To the inquiry what constitutes a legal quorum, under 
tlie Constitution, for the organization of the House, I have to 
say that in my opinion such quorum for permanent organiza- 
tion, under the present constitution, consists of one hundred and 
twenty-one members. The permanent organization of the House 
is, literally at least, "the transaction of business," and it seems 
to be so regarded both in the former constitutional provision and 
in the recent amendiuent ; and as the amendment does not per- 
mit " the transaction 6i business " by a less number than a quo- 
rum, the effect of it is to require the constitutional quorum for 
permanent organization. But with reference to temporary 
organization the case is different. Prior to the adoption of the 
amendment, the constitutional provision was that " not less than 
one hundred members of the House of Representatives shall con- 
stitute a quorum for doing business, but a less number may 
organize temporarily, adjourn from day to day, and compel the 
attendance of absent members." The language of the amend- 
ment is, "a majority of the members of each branch of the 
General Court shall constitute a quorum for the transaction of 
business, but a less number may adjourn from day to day, and 
compel the attendance of absent members. All the provisions 
of the existing Constitution inconsistent with the provisions 
herein contained are hereby annulled." It is difficult to believe 
that this amendment was drawn without reference to the former 
provision, or that the words " organize temporarily " were omitted 
by inadvertence. The amendment, therefore, seems at first sight 
to deprive a number less than a quorum of the power which it 
formerly had to organize even temporarily. But some sort of 
temporary organization is necessary to the exercise of the other 
powers which are expressly granted to a less number than a 
quorum, to " adjourn from day to day and compel the attendance 
of absent members " ; and, in my opinion, from the necessity of 
the case, a less number than a quorum may effect such tempo- 
rary organization as may be required for the exercise of the 
other powers expressly conferred. 

I have submitted these reasons for my opinion, out of defer- 
ence to the honorable House of Representatives, in compliance 
with the terms of its order. But I respectfully call the attention 
of the honorable House to the fact that the statute does not 



4 ATTORNEY-GENERAL'S REPORT. [Jan. 

require the Attorney-General to state the reasons of his opinion ; 
and that in some cases such a statement may be inconsistent 
with the public interests. 

Very respectfully, your obedient servant, 

A. E. PiLLSBURY, Attorney-General. 



[Prison Labor. Manufacture of harnesses not a classified, industry in 
the census of 18H0. Employment of 82 men in that industry in 
the State Prison not in violation of law.] 

Attorney-Geneual's DEI'ARTMENT, 
Boston, Feb. 13, 1892. 
To His Excellency the Governor. 

The answer to your inquiry whether the employment of eighty- 
two inmates of the State Prison in harness-making is in excess 
of the number allowed by law, depends upon the question whether 
the enumeration in the census of 1880 of persons engaged in the 
" saddlery and harness " industry is a sufficient classification of 
" the manufacture of harnesses " within the meaning and for the 
purposes of section 2 of chapter 403 of the Acts of 1888. 

I understand that my predecessor expressed to the Governor 
and to a Legislative Committee the opinion that harness-making 
cannot be considered as classified in that census, and that this 
view has been acted upon by the legislature and the prison 
authorities. Under these circumstances there is, in my opinion, 
no sufficient occasion to depart from the rule thus established. 
Doubtless " saddlery " may be and sometimes is taken to cover 
and include harnesses and harness-making. But it is equally 
true that the manufacture of harnesses is, to some extent at least, 
a separate and distinct industry, as it is in the prisons ; and the 
census does not disclose how many are engaged in this separate 
industry. If we assume that all the persons classified under the 
" saddlery and harness " head are engaged or are to be considered 
as engaged in harness-making, this assumption may lead us into 
the very difficulty which the statute is designed to prevent, which 
is the competition of prison labor with free labor, in the same 
industry, in any greater proportion than one-twentieth. Suppose 
the number classified under " saddlery and harness " to be three 
thousand, of whom but two thousand are in fact engaged in har- 
ness-making. If we assume this to be a classification of harness- 
making, it permits the employment in the prison of one hundred 
and fifty men in harness-making ; which is more than one-twen- 
tieth of those so actually engaged outside. For this and other 



1893.] PUBLIC DOCUMENT— No. 12. 5 

reasons the employment of eighty-two men in harness-making in 
the State Prison cannot, in my opinion, be said to be in excess of 
the number allowed by law. 

Very respectfull}-, your obedient servant, 

A. E. PiLLSBURY, Attorney-Gene'ral. 



[Under the Legacy Tax Act an executor, administrator, or trustee is 
required to file in the Probate Court an inventory of the whole 
estate, and not merely of that part subject to the tax.] 

Attoesey-Genekal's Department, 
Boston, Feb. 18, 1892. 
Hon. Geokge A. Mabden, Treasurer. 

Sir : — In reply to your inquiry whether under the legacy tax 
act, chapter 425 of the Acts of 1891, an executor, administrator, 
or trustee is obliged to file in the Probate Court an inventory of 
the whole estate, or whether he may file an inventory only of 
such part as is subject to the tax, I have to say that, in my opin- 
ion, the act requires him to file an inventory of the whole. This 
is evident from the express provisions of sections 9 and 10 : and 
from the further consideration that the statute cannot reason- 
ably be taken to intend that tiie executor, administrator, or trus- 
tee shall determine for himself what part of the estate is subject 
to the tax. It must be taken to require hiiu, as the language 
^iearly implies, to disclose the whole, for the examination of any 
party in interest and the action of the court upon any question 
which may arise. 

Very respectfully, your obedient servant, 

A. E. PiLLSBURT, Attorney-General. 



[Title Insurance Companies may buy mortgages of real estate as an 
investment of their capital or guaranty fund, and may sell such 
mortgages when their interest requires, and may charge for ex- 
amination of title thereto; and they may add to their original 
business the buying and selling of such mortgages, as brokers 
merely, for a commission, without being th^eby debarred from 
the business of title insurance ; but they cannot add or engage in 
the business of buying and selling mortgages as dealers therein 
or carry them as a stock in trade.] 

Attorney-General's Department, 
Boston, Feb. 18, 1892. 

Hon. George S. jyiEKRiLL, Insurance Commissioner, 

Sir: — In reply to your inquiries of 15th inst., relating to the 
powers of Title Insurance Companies, I have to say : — 



6 ATTORNEY-GENERAL-S REPORT. [Jan. 

First, in my opinion Title Insurance Companies organized 
under the general laws cannot engage in the business of buying 
and selling mortgages of real estate for the purpose of profit 
either by commissions thereon, or by increasing their business by 
examination of the titles to the mortgaged estates. But they 
may invest their capital or guaranty fund in mortgages of real 
estate, and of course they may sell any mortgage purchased for 
this purpose when their interest requires. The practical result 
is that, while they cannot engage in the business of buying and 
selling mortgages as an independent business, they may buy and 
sell mortgages up to the amount of their capital and guaranty 
fund, if such mortgages are actually purchased and held for and 
as part of these funds. And there is nothing to forbid them 
from making a proper charge for examination of the title to 
the mortgaged estates, as the practice is among savings banks 
and like institutions, if the parties in interest are willing to 
pay it. 

Second, as Title Insurance Companies under section 62 of the 
Insurance Act, chapter 214 of 1887, have the privileges of other 
corporations under chapter 106 of the Public Statutes, and as one 
of these privileges, under section 51 of chapter 106, is the addi- 
tion of any lawful business for which they could originally organ- 
ize under that chapter, they may, in my opinion, by the proper 
proceedings under the statute, add to the business for which they 
were originally organized the business of buying and selling 
mortgages of real estate as brokers, for the purpose of earning a 
commission upon such transactions, or of increasing their regular 
business by the examination of titles. The business of buying 
and selling securities as brokers merely has always been con- 
sidered and treated by the department having charge of the 
organization of corporations, so far as I am informed, as a " law- 
ful business " within the sense of section 14 of chapter 106, 
for which a corporation may be organized under the general law. 
But this will not permit them to buy and sell mortgages as dealers 
therein, or to carry mortgages as a stock in trade. Such dealing 
in negotiable securities has always been regarded and treated by 
the corporation department as a branch of banking, for which a 
corporation cannot be organized under the general law. If the 
construction of the word "banking " in the corporation act were 
a new question, it might require futher consideration to deter- 
mine exactly what it includes, but at present I see no occasion to 
depart from the rule established by tlie practice of the corpora- 
tion department. 

Third, in my opinion, a Title Insurance Company, by making 



1893.] PUBLIC DOCUiMENT — No. 12. 7 

such addition to its original business under chapter 106, within 
the limits above indicated, is not thereby debarred from pursu- 
ing the business of title insurance. 

Very respectfully, your obedient servant, 

A. E. PiLLSBURY, Attorney- GeneraL 



[Savings-bank act. Commissioners may justify taking by our banks 
of such of the Chicago Exposition bonds as are issued within 
the debt-limit.] 

Attorney-General's Department, 
Boston, Feb. 20, 1892. 
To His Excellency the Governor. 

I acknowledge the receipt of your request for my opinion upon 
the construction of chapter 90 of the Acts of the year 1888, as 
amended by chapter 369 of the Acts of 1890, with special refer- 
ence to the meaning of the phrase " in the legally authorized 
bonds for municipal purposes " therein ; and upon the question 
whether the bonds of the City of Chicago in aid of the Columbian 
Exposition are issued for municipal purposes within the meaning 
of the act, so that savings banks may invest their deposits 
therein. 

I gather from the papers accompanying your request, and 
understand it to be assumed, that an issue of bonds to the amount 
of $5,000,000 was voted for this purpose by the City of Chi- 
cago under authority of a constitutional amendment expressly 
adopted for the purpose, of which but $3,000,000 have been 
issued ; that the issue of the entire $5,000,000 would be beyond 
the debt-limit established by our statute, but that the issue of 
$3,000,000 is within the limit ; and the statement is made that 
no more will be issued unless and until an increase in the valua- 
tion of Chicago shall warrant such further issue, and then no 
more than are within the limit of our statute. This makes the 
identity of the particular bonds offered an important question, as 
it is clear that only those actually issued within the limit can be 
lawfully taken by our savings banks, in any view of the subject. 
I mention this by way of caution, as I am not informed whether 
there is or may be any sufficient means of identifying any bonds 
which may be offered here as properly issued within the statutory 
limit. 

These bonds are peculiar in several features, not only in the 
circumstances under which but in the purpose in aid of which 
they are issued ; and the precise question which they present is 
not likely to arise again. Por this reason I do not consider it 



8 ATTORNEY-GENERAL'S REPORT. [Jan. 

expedient or necessary for the purposes of this ease to put a 
iixed construction which may be applied to all cases, upon this 
important provision of the savings bank act. I am not prepared 
to say that bonds issued for a purpose of this character can 
always be regarded as issued for municipal purposes, in the sense 
of our law. But on full consideration of the special circum- 
stances, both of law and fact, under which these bonds are issued, 
there are, in my opinion, sufficient grounds on which the commis- 
sioners of savings banks may justify the taking of such of the 
bonds as are properly issued within the debt-limit, if they are so 
disposed. 

Very respectfully, your obedient servant, 

A. E. PiLLSBURY, Attorney-General. 



[Legislature. Travelling expenses. Allowance of $2 per mile not in 
violation of 4tli clause of article 2, section 3, chapter 1 of Consti- 
tution. 

Doubt as to Constitutionality of single provision of act of legislature 
does not require executive to interpose, if other independent 
provisions not open to question.] 

Attounky-Genekal's DkI'AHTMKNT, 
Boston, March 12, 1S92. 
To Ills Excellency the Governor. 

In compliance with your request for my view of the constitu- 
tionality of section 4 of the legislative bill entitled " An Act 
concerning the use of railroad passes, and the compensation of 
members of the legislature," I have the honor to say that, in my 
opinion, it is not in violation of the Constitution. 

The first three sections of the bill are directed to prohibit the 
use of railroad passes by members of the legislature and certain 
other public officers. Section 4 relates to the compensation of 
members of the legislature, and provides that each member shall 
receive $750 for the session, "and two dollars for every mile of 
ordinary travelling distance from his place of abode to the place 
of the sitting of the General Court." The question is whether 
this latter provision is in violation of the fourth clause of article 
2, section 3, chapter 1 of the Constitution, providing, as to mem- 
bers of the House of Kepresentatives only, that " the expenses of 
travelling to the General Assembly and returning home once in 
every session, and no more, shall be paid by the government out 
of the public treasury to every member who shall attend as 
seasonably as he can, in the judgment of the House, and does not 
depart without leave." 



1893.] PUBLIC DOCUMENT — No. 12. 9 

Upon a casual view of these provisions, they might appear to 
be inconsistent with each other. But upon further examination 
I am satisfied that the true purpose and effect of the constitu- 
tional provision are quite different from what they might at lirst 
sight appear to be, and that the present bill is not in conflict 
with it. 

Under the original constitution the Senate and House were 
bodies of widely different character. The senatorial representa- 
tion was based upon taxable property, instead of population. 
The senators were chosen to be " councillors and senators," and 
the members of the Executive Council were selected from their 
aiumber. They were elected by counties, and were required to 
have a property qualification of 300 pounds real or 600 pounds 
personal estate. On the other hand, the House of Representa- 
tives was made a popular body. It was declared to be " a repre- 
sentation of the people, founded upon the principle of equality." 
The basis of representation had reference only to population, and 
•not to property. Every town of 150 polls was given a represen- 
tative, and the property qualification required of representatives 
was much less than that of senators. No compensation for 
rservices is provided for either branch. 

It was, in my opinion, in view of and with reference to this 
■different character of the two branches of the legislature, that 
the Constitution provided for the allowance of the travelling 
expenses of members of the House, while making no such allow- 
ance to members of the Senate. It was designed to promote the 
.attendance of the representatives. The next clause of the Con- 
stitution preceding that which provides for the travelling 
expenses of members of the House, empowers the House to 
impose a fine upon towns which neglect to send representatives. 
The position and connection of these two clauses are significant. 
The purpose clearly was to promote the election and secure the 
attendance of a full representative body of the people ; to which 
end, it was deemed reasonable and expedient to provide for the 
payment of their travelling expenses out of the public treasury, 
so that representatives would be less likely to be prevented from 
attending by lack of means. The history of the period in which 
the Constitution was framed, and our historical knowledge of the 
situation and opinions of the men who made it, strengthen this 
■conclusion. 

In this view of the constitutional provision, it is clear that it 
must be taken as designed to ensure the allowance for travel; 
and not to limit the amount of it, except that, when fixed, it can 
be paid but once in each session ; and that the true meaning is, 



10 ATTORNEY-GENERAL'S REPORT. [Jan. 

that the expenses of travelling and returning home, as ascertained 
or fixed by the legislature, shall be allowed to each member of 
the House once, and no more than once, in each session. 

There are other reasons on which the constitutionality of the 
bill may bo supported. The legislature has undoubted power to 
provide for the compensation of its members, and if it sees fit to 
fix their compensation wholly or partially with reference to the 
distance which they are- obliged to travel, this, in my opinion, 
cannot be said to be beyond its power. And while the allowance 
of two dollars per mile seems to be an allowance for or in lieu of 
travelling expenses, the section is legally capable of the other 
construction, namely: — that the legislature designed to fix a 
variable rate of compensation of members, with some reference 
to the distance of their homes from the place of session. This in 
effect, though in a different form, has been done before. See 
Statute 1858, chapter 2, sections 1, 2, and Resolves of 1859, 
chapter 130. But if the allowance of two dollars per mile 
is taken strictly as designed to provide for the travelling ex- 
penses referred to in the Constitution, it cannot be declared 
in excess of the legislative power. The " expenses of trav- 
elling" provided for by the Constitution must be ascertained 
and fixed by somebody, and there is no doubt that the legislature 
may fix them for itself ; and I see no reason to doubt that it may 
fix them in advance and in its own way. It is common knowl- 
edge that two dollars per mile is now much more than the ordi- 
nary cost of travel in Massachusetts, but the allowance seems 
never to have been limited to the actual cost of transportation. 
See Resolve of Oct. 19, 1781, chapter 243. Resolve of Feb. 
23, 1795, chapter 74. Resolve of June 11, 1795, chapter 18. 
Resolve of 1857, chapter 68 ; since which there has been no 
change in the allowance for travel. It is to be remembered that 
all the legal presumptions are in favor of the propriety of the 
exercise of the legislative power, and all doubts are to be resolved, 
so far as possible, in its favor. 

Perhaps I should also direct the attention of yonr Excellency 
to another view of the bill. The first three sections, relating to 
railroad passes, are not affected by the constitutional question, 
and they are entirely separable and distinct from the fourth sec- 
tion. It is a familiar rule that even if some provisions of an act 
of the legislature are unconstitutional, other distinct and independ- 
ent provisions may stand. There may be cases in which a single 
clearly unconstitutional provision in an act of the legislature 
would call upon the Executive to withhold his approval from the 
act ; but a doubt of the constitutionality of a single provision 



1893.] PUBLIC DOCUMENT — No. 12. 11 

does not necessarily i-equire the Executive to interpose against a 
bill containing other independent provisions which are not open 
to question. 

Very respectfully, your obedient servant, 

A. E, PiLLSBURY, Attorney- General. 



[Militia, Election of field officer. The authority of the electing 
body terminates upon failure to elect after two successive ad- 
journments of an Election held under section 45 of the Militia 
act, chapter 411 of 1887, or upon its dissolution after one ad- 
journment ; and it thereupon becomes the duty of the Governor 
to fill the vacancy by appointment.] 

Attokney-General's Department, 
Boston, March 16, 1892. 

Major-General Samuel Dalton, Adjutant-General. 

Sir : — I have your communication of this date requesting my 
opinion upon this question : If, after one adjournment of an 
election of a field officer, under section 45 of the militia act, 
chapter 411 of 1887, there is a failure to elect, and the presiding 
officer without any further adjournment declares the election 
dissolved and orders a new election, must the Governor appoint 
to the vacancy, or can the electing body be again called together, 
under such new order, for an election ? 

I find no authority in the law for a new election under these 
circumstances. In my opinion the dissolution of the meeting at 
the first adjournment, without any further adjournment, deter- 
mines the authority of the electing body, and leaves the case in 
the same position as upon neglect or refusal to elect after a 
second adjournment; whereupon it becomes the duty of the 
Governor, under section 51, to appoint a suitable person to the 
vacancy. 

In the General Statutes of 1860, chapter 13, section 45, and 
prior thereto, it was provided that the division commander 
might, if necessary, order a new election under such circum- 
stances, unless notified by the Commander-in-Chief of his inten- 
tion to make an appointment. The omission of this provision in 
the later re-enactments of the militia law in 1878, in the Public 
Statutes of 1882, and in 1887, indicates the purpose of the Legis- 
lature to require that the Commander-in-Chief shall appoint to 
any vacancy which the electing body neglects or refuses to fill at 



12 ATTORNEY-GENERAL'S REPORT. [Jan. 

ai: election held in accordance with the provisions of section 45; 

and under that section the authority of the electing body is 

limited to two successive adjournments of the original election. 

Very respectfully, your obedient servant, 

A. E. PiLLSBURY, Attorney- General. 



[Corporation. Husband and wife cannot be parties to Agreement 
of Association under general laws.] 

Attorney-General's Department, 
Boston, March 19, 1892. 

Hon. Charles Endicott, Commissioner of Corporations. 

Sir : — Upon your reference to me of the question whether a 
husband and wife can lawfully join in an Agreement of Associa- 
tion for the purpose of forming a corporation, under the general 
laws. I have to say that I see no sufficient reason for changing 
what I understand to have been the uniform practice of your 
department, to decline to accept a husband and wife toward 
making up the necessary number of associates ; on the ground 
that the agreement is a contract between each subscriber and all 
the others, and that a husband and wife cannot lawfully make 
such a contract with each other. 

Very respectfully, your obedient servant, 

A. E. PiLLSBURY, Attorney- General. 



[Foreign Insurance Company, duly admitted to this Commonwealth 
and quali-fled under our laws to do marine as well as fire insur- 
ance, may do marine business here, notwithstanding its cer- 
tificate and licenses mention only fire insuran«^e.] 

Ati'orney-Genkral's Department, 
Boston, April 1, 1892. 

Hon. George S. Mpjkrill, Insurance Commissioner. 

Sir : — I acknowledge the receipt of your inquiry whether the 

St. Paul Pire and Marine Insm-ance Company, admitted in 

October, 1872, to transact fire insurance in Massachusetts, and 

now and ever since doing that business here under licenses which 

mention only fire insurance, can now add to that business the 

business of marine insurance in this Commonwealth; or, if it 

cannot add the business of marine insurance under its present 

authority, whether, in this state of things, it can demand licenses 

to transact marine as well as fire insurance. I assume, of course, 

that the company possesses the qualifications required by our law 

for both classes of business. 



1893.] PUBLIC DOCUMENT — No. 12. 13 

The provision of section 80 of the Insurance Act, chapter 214 
of 1887, that no foreign insurance company hereafter admitted 
to the Commonwealth shall be authorized to transact more than 
one class of insurance therein, does not apply to this company; 
as it was admitted before the original enactment of that provis- 
ion, in the statute of 1879, chapter ICO. It is plain that this 
statute recognized the fact that there were then foreign com- 
panies doing or authorized to do more than one class of business 
here, and that the restriction to one class was not intended to 
apply to foreign companies already established here. 

The only question, therefore, of the authority of this company 
to do marine business, arises out of the form of its licenses, 
which mention only fire insurance. While it would doubtless be 
better, for some reasons, that the certificate or license should in 
every case express the class or classes of business which a for- 
eign company is authorized to do here, the statute, in my opinion, 
does not warrant the exclusion of a duly admitted company, 
whatever may be the form of its certificate or licenses, from a 
clas= i)f business which it is qualified and may lawfully be 
autnorized to do. The statute which provides for the certificate 
of admission (Insurance Act of 1887, section 78, 5th clause), 
describes it as a certificate that the company "has complied with 
the laws of the Commonwealth, and is authorized to make con- 
tracts of insurance." In the case, at least, of a company which 
is not confined to one class or kind of insurance, the statute does 
not require the certificate to express the class or classes of insur- 
ance which it may do. The provisions for licenses to agents are 
substantially the same in this respect. The statute, therefore, 
affords no express authority to restrict to a single class of busi- 
ness, by the form of the certificate or license, a company which 
may lawfully be authorized to do more than one class. I think 
the certificate and the licenses are designed to furnish evidence 
of the right of the company and its agents to transact the busi- 
ness of insurance in the Commonwealth ; leaving the class or 
classes of insurance which may be transacted thereunder to be 
determined by the law, according to the qualifications of the 
company. 

Accordingly, I am of opinion that the company in question, 
under its present authority, may add to the business of fire 
insurance the business of marine insurance in this Common- 
wealth. 

Very respectfully, your obedient servant, 

A. E. PiLLSBURY, Attornei I- General. 



14 ATTORNEY-GENERAL'S REPORT. [Jan. 



[State aid. Jurisdiction of Commissioners as board of Appeal limited 
to cases of ' ' invalid pensioners." Under section 7 and 8 of chap- 
ter 301 of 1889, commissioners may inquire into all questions 
on which legality of any payment of state aid may depend. 
Whether a woman whose husband has not been heard from for 
many years is "widowed," in the sense of the act, is a question 
of fact, which the commissioners may determine on evidence. 
Oath of applicant not conclusive.] 

Attorn'ky-Genkkal's Department, 
Boston, April 14, 1892. 
Hon. John vV. Kimball, Auditor. 

Sir: — I have your request for my opinion upon the question 
now before the Commissioners of State Aid, upon appeal from 
an adverse decision of the municipal authorities of Salem, 
whether the mother of a deceased soldier, whose husband, the 
father of the soldier, went to California about forty years ago 
and has never been heard from since that time or about that 
time and is supposed to be dead, can be regarded as a "widowed 
mother," in the sense of section 1 of the State Aid Act, chapter 
301 of 1889, so as to be entitled to aid thereunder. 

I am of opinion that the commissioners have no jurisdiction 
of tlie appeal, and that for this reason the question is not at 
present before them for determination. By section 7 of the act 
the powers of the commissioners as a board of appeal seem to be 
limited to the case of "invalid pensioners," who under the act 
are a class by themselves, to which class the present applicant 
does not belong. 

But under section 7 and 8 the commissioners have power to 
investigate all jDayments of state aid to claimants of any class, 
as preliminary to their allowance by the auditor ; and if the au- 
thorities of Salem should see fit to allow and pay the aid in this 
case, it would then be within the power of the commissioners, 
upon the certificate of such payment, to inquire into its legality, 
and to determine any question upon which its legality may 
depend, including the question whether the applicant is a "wid- 
owed mother," in the sense of the act. This is a question of 
fact, to be determined upon such evidence as may be had ; and 
in determining it various circumstances are material to be con- 
sidered, such as the circumstances under which the husband 
disappeared or was last heard of, the distance and facilities of 
communication with the place where he was last known to be, 
his age and state of health, the length of time since he was last 
heard from, and any other material circumstances. The oath of 
the applicant, or the absence of such oath, is not conclusive 



1893.] PUBLIC DOCUMENT — No. 12. 15 

proof either that the man is or is not dead. The board may 
also consider the legal presumption that a man is dead if absent 
and unheard of by his nearest friends or relatives for more than 
seven years. And if upon all the evidence they are reasonably 
satisfied that the missing man is in fact dead, they are at liberty 
to regard the applicant as a " widowed mother," iu the sense of 
the statute, and to allow the payment. 

Very respectfully, your obedient servant, 

A. E, PiLLSBURY, Attorney- General. 



Attorney-General's Department, 
Commonwealth Building, Boston, May .3, 1892. 

To His Excellency the Governor. 

I acknowledge the receipt of your request for my opinion 
upon the constitutionality and other features of House Bill No. 
334, entitled " An Act authorizing the reimbursement of ex- 
penses incurred by certain towns in the maintenance of the 
insane.-' I regret that I am obliged to answer it in the midst of 
a capital trial, which necessarily engrosses my time, but upon 
such examination as I am able to make I see no reason to seri- 
ously doubt the constitutionality of the bill. 

As to the other questions raised, it is clear that, under the 
bill, the Governor and Council must determine whether a town 
is entitled to reimbursement ; in order to which they must first 
find that the taxable valuation of the town is less than $500,000, 
and that the town is lawfully charged with the maintenance of 
the person in question, by reason of his having a legal settle- 
ment in the town. As the bill stands, the Governor and Council 
must also determine whether the reimbursement shall be in whole 
or in part. The act contemplates the reimbursement without 
any further legislation, and it provides no other tribunal for 
determining this question. In this particular, and also upon the 
question of what discretion, if any, is vested in the Governor 
and Council as to ordering the reimbursement in any case, the 
bill might be made clearer by amendment. As it stands it must, 
T think, be construed as I have stated above. 

Very respectfully, your obedient servant, 

A. E. PiLLSBURY, Attorney-General. 



16 ATTORNEY-GENERAL'S REPORT. [J; 



[Rapid Transit Commission established by chapter 365, of 1891. Ex- 
penses necessarily or reasonably incidental to completion of 
final report as early as possible may be allowed, though in- 
curred after expiration of prescribed time ; but nothing beyond 
this. General rule that board charged with single duty expires 
with discharge of that duty.] 

ATTOUNEY-GENEnAL'S DEPARTMENT, 

Boston, May 11, 1S92. 
Hon. John W. Kimball, Auditor. 

Sir : — I have your request for my opinion upon the question 
whether you can allow for payment any expenses of the Eapicl 
Transit Commission, established by chapter 365 of the Acts of 
1891, incurred after the first Wednesday in April, 1892, the date 
to which the time for the final report of the Commission was 
extended by chapter 107 of the resolves of 1891. 

The act and resolve need not be construed as absolutely jDut- 
ting an end to all authority of the Commission on the first Wed- 
nesday in April, 1892. If the Commission had been for any 
reason unable to complete and present its final report within that 
time, there would be, I presume, no doubt of its duty or authority 
to complete and present it as soon thereafter as might be, and 
the legislature would undoubtedly have received it when so com- 
pleted and presented. In that case, the expenses of the Com- 
mission might reasonably be allowed and paid, to the completion 
and presentation of its report. On the other hand, the act and 
resolve are not to be construed to continue the Commission in 
office, with authority to incur expenses, for an indefinite time. 
Tlie general rule is that when a board is charged with a single 
specific duty, its official character and functions end with the 
performance of the duty. This rule may properly be applied to 
the present case. I understand that the official report of the 
Commission was completed and presented within the prescribed 
time, but that an additional or supplemental report of the engi- 
neer has been completed and presented within the past few days, 
and since the first Wednesday in April. I am not informed 
whether this supplemental report can be considered as part of 
the report of the Commission, or as necessarily incidental to the 
completeness or completion of that report. If, as incidental to 
the completion and presentation of the final report of the Com- 
mission within the prescribed time, or even beyond. that time, 
the Commission has necessarily or reasonably incurred expenses 
since the first Wednesday of April, such expenses may. in my 
opinion, be certified for payment ; but only such as are reason- 
ably necessary to the completion and presentation of the final 



1893.], PUBLIC DOCUMENT — No. 12. 17 

report of the Cominissiou within the limited time or as soon 
thereafter as possible. Beyond this limit the Commission has, 
in my opinion, no authority to incur expenses to be charged upon 
the treasury. 

Very respectfully, your obedient servant. 

A. E. PiLLSBUBY, Attorney-General. 



[Legacy Tax act. State Treasurer has no legal authority to consent 
to omission of executor to file inventory of entire estate, and 
such consent is of no legal effect.] 

Attorney-General's Department, 
Commonwealth Building, Boston, May 11, 1892. 

Hon. Geokge a. Marden, Treasurer. 

Sir : — I have your request to be advised whether you have 
legal authority to consent in advance to the omission by an execu- 
tor to file an inventory of an entire estate of which a part is tax- 
able under the legacy tax act of 1892. I advised you under date 
of February 18, 1892, that the law requires an inventory of the 
entire estate to be filed. The statute gives the treasurer no ex- 
press power or discretion to dispense with this requirement ; on 
the contrary, it expressly requires him to prosecute for the pen- 
alty upon neglect or refusal to comply with it. In my opinion 
you have no legal authority to dispense with it ; and your con- 
sent to the omission, or even a promise of immunity for it, would 
be of no legal effect to bind your successors, or to bar a prosecu- 
tion for the penalty. 

Very respectfully, your obedient servant, 

A. E. PiLLSBURY, Attorney- General. 



[Province lands in Provincetown. Duties of State agent are as pre- 
scribed in Statute 1869, chapter 218. Questions relating to as- 
sertion or defence of title of the Commonwealth or its grantees 
are for the Legislature.] 

Attorney-General's Department, 
Boston, May 12, 1802. 

Jo His Excellency the Governor and the Honorable Executire Council. 

I acknowledge the receipt of the Order in Council of April 27, 
referring to me the communication of David Ryder, agent of the 
Province lands, in Provincetown, and requesting that I advise 
with him as to his duty. 



18 ATTORNEY-GENERAL'S REPORT. [Jan. 

The duties of the agent are prescribed by chapter 218 of the 
Acts of 1869, but these are so plain that they cannot be misun- 
derstood ; and I presume that what Mr. Eyder wishes to know 
is whether he has any duty in respect of the title of the Com- 
monwealth, or its grantees, in the Province lands, or in relation 
to the defence of such title when drawn in question. In my 
opinion he has no such duty. The writ of entry to which he 
refers has been tried and disposed of, if I am correctly informed, 
and it is now too late to intervene in that case, if there were any 
occasion to intervene. I am informed also that the tenant in 
that action does not intend to prosecute his exceptions ; and I 
know of no reason to suppose that the Commonwealth has any 
right to take the defence of the action out of his hands, or to 
interfere with his conduct of it. 

The Province lauds in Provincetown have been the subject of 
legislation from the earliest times. The title to them is under- 
stood to be still in the Commonwealth, and they are expressly 
excepted from Public Statutes, chapter 196, section 11, relating 
to the limitation of real actions by or against the Commonwealth. 
See also General Statutes, chapter 154, section 12 ; Statute 1854, 
chapter 261 ; Statute 1838, chapter 151 ; Provincial Statutes, 
1714, chapter 7, section 2 ; Provincial Statutes 1727, chapter 11 ; 
Provincial Statutes 1779, chapter 18 ; Provincial Statutes, 1740, 
chapter 15 ; Acts and Resolves, Massachusetts, Provincial, vol- 
ume 3, pp. 219, 220 ; Statutes 1786, chapter 12 ; Statute 1806, 
chapter '21 ; Statute 1807, chapter 79 ; Statute 1811, chapter 
92 ; Statute 1826, chapter 80 ; Statute 1833, chapter 143 ; Stat- 
ute 1835, chapter 125; Statute 1838, chapter 151 ; Statute 1853, 
chapter 306 ; Statute 1864, chapter 77. 

The question what, if anything, should be done toward assert- 
ing or defending the title of the Commonwealth or its grantees 
in these lands, is, in my opinion, a question of legislative jjolicy ; 
and uutil further action of the legislature the State agent has no 
duty in the premises, except the duties prescribed by the statute 
of 1869 above referred to. 

Very respectfully, your obedient servant, 

A. E. PiiiLSBURY, Attorney-General. 



1893.1 PUBLIC DOCUMENT — No. 12. 19 



[Fraternal Beneficiary (Endo^wment) Societies. The public has no 
legal interest in the funds of these societies, or in a controversy 
over them ; and the attorney general is neither required nor au- 
thorized to appear in court therein.] 

Attokney-General's Department, 
Commonwealth Building, Boston, May 17, 1892. 

Hon. Geokge S. Merkill, Insurance Commissioner. 

Sir : — I acknowledge the receipt of your letter of 14th inst., 
referring to the question raised upon the report of the receiver 
to the Superior Court, in the case of the Order of the Eoyal Ark. 

In my opinion there is no public interest involved, in the legal 
sense, which calls for or authorizes my appearance in the case. 
The " general interests of the public " are not in question. The 
controversy is either between members of the corporation as 
among themselves, or between the members and various claim- 
ants of the funds. The public has no legal interest in the funds, 
and for this reason has no legal interest in the controversy which 
I can properly represent. 

Very respectfully, your obedient servant, 

A. E. PiLLSBURY, Attorney-General. 



[Constitutionality ol act regulating registration of voters. Legisla- 
ture can impose no qualifications beyond those of Constitution, 
but may make reasonable and uniform regulations for registra- 
tion. Question whether regulation is reasonable is largely for 
judgment of legislature. Act favoring, in convenience of regis- 
tration, those who have paid a tax, but leaving all free to regis- 
ter without reference to taxation, cannot be declared unconsti- 
tutional on its face.] 

Attorney-General's Department, 
Commonwealth Building, Boston, May 24, 1892. 

To the Honorable the President of the Senate. 

In compliance with the request, of the honorable Senate in its 
order of May 18, I return my opinion upon the constitution- 
ality of Senate Bill No. 216, entitled " An act relating to the 
registration of voters." I assume that the provisions of the bill 
which are principally in question, are those of sections 14 and 
15, and of sections 7, 8, 10 and 11 so far as they are incidental 
to the purposes of sections 14 and 15. 

The legislature cannot impose upon the voter any qualifica- 
tion throughout as a condition of the right to vote, beyond those 



^0 ATTORNEY-GENERAL'S REPORT. [Jan. 

expressly prescribed by the Constitution. But it may provide, by 
reasonable and uniform regulations, for the registration of voters 
in advance of the election, and for the exclusion from the right to 
vote of any not so registered. The present bill does not impose, 
or attempt to impose, any additional qualifications upon the 
voter. The sections in question relate only to registration and 
to the ascertainment of the qualifications of the voter, for the 
purpose of registration ; and the only question is Avhether they 
are reasonable and uniform regulations for this purpose. 

The doubtful provision is that which requires the registrars 
to carry over to the register of the current year from that of the 
preceding year, without farther inquiry, the names of all who 
paid a tax in the preceding year and are assessed for a poll tax 
in the current year, if identified. This has the effect to favor, 
in the convenience or facility of registration, those who are as- 
sessed and have paid a tax, although assessment and payment of 
a tax have ceased to be a qualification of the voter. Such a reg- 
ulation can be sustained only if it is a necessary or reasonable 
regulation for the purpose in view ; and this is largely a question 
for the judgment of the legislature. 

The legislature may consider that different cases arising in 
registration may be or must be differently dealt with ; that more 
evidence may reasonably be required of one voter than of another 
of whom more is known : that one who has paid a tax may rea- 
sonably be favored, to some extent, in the convenience of regis- 
tration ; that one of whom certain facts tending to establish citi- 
zenship appear by the public records, may reasonably be excused 
from presenting himself before the registrars, while another, of 
whom these facts do not appear, may reasonably be required to 
establish his right ; that the fact of assessment and payment of 
a tax will aid the registrars, as evidence, in determining the 
identity and the domicile of the voter, which they must deter- 
mine ; or even that these facts may reasonably be declared to be 
sufficient prima facie evidence to warrant the keeping of a name 
upon the register, in the absence of objection. This is in line 
with section 23, which expressly provides that the registrars 
may receive a tax bill or collector's notice, or a certificate of 
assessment, as prima facie evidence of residence in the place and 
for the time required by law of a voter. The legislature may 
also consider that between the two extreme courses of carrying 
over the entire list from one year to the next, or wiping out the 
entire list at the end of each year, either of which it may regard 
as objectionable but one of Avhich must be done if all are to be 
treated exactly alike, there may be some middle ground on which 



1893.] PUBLIC DOCUMENT — No. 12. 21 

the registrars may be reasonably required to go in determining 
what names shall be carried over ; and it may consider that the 
rule prescribed by the bill is a convenient and reasonable rule. 
All these questions are for the consideration and judgment of 
the legislature, but the legislative judgment must be reasonably 
exercised. It is to be remembered that some difference in the 
mode of dealing with different cases does not necessarily amount 
to discrimination, or violate the requirement of uniformity, in 
the legal sense. It is to be observed, also, that the bill does not 
make the assessment or payment of a tax a condition of the right 
to be registered, which would be clearly objectionable. It leaves 
any voter free to present himself and establish his right to be 
registered, without any evidence of or reference to taxation. 

The provision which makes the payment of a tax an essential 
part of the evidence for keeping a voter upon the list, must be 
said to approach, if it does not reach, the line of objectionable 
discrimination. But taking the question as a bare question of 
legislative power, apart from any question of expediency, and 
with all presumptions in favor of the bill which the law requires 
to be made in favor of the acts of the legislature, it cannot be 
declared in advance that these provisions for the regulation of 
registration are clearly in violation of the Constitution ; or, in 
view of the latitude which is permitted to legislative discretion, 
that they are clearly beyond the power of the legislature to enact. 
Very respectfully, your obedient servant, 

A. E. PiLLSBURY, Attorney- General. 



[Endowment Order. Insurance Commissioner may endorse requi- 
sition for withdrawal of funds in possession of Treasurer of 
Commonwealth if the corporation is being wound up by any 
lawful method, although the full period of the certificates has 
not expired.] 

Attornev-Gexekal's Department, 
Commonwealth Building, Boston, June 4, 1892. 

Hon. Geokge S. Meekill, Insurance Commissioner. 

SiE : — In reply to your inquiry Avhether you are authorized 
to endorse a requisition of the officers of the Industrial Benefit 
Order for the withdrawal of the funds in the hands of the Treas- 
urer of the Commonwealth for payment of matured certificates, 
the certificates liaving been issued for a term of five years which 
has not yet expired, I have to say that, in my opinion, the stat- 
ute does not absolutely forbid the making of such requisition 



22 ATTORNEY-GENERAL'S REPORT. [Jan. 

under any circumstances until the maturity of the certificates 
by expiration of the period specified. If the statute should be 
so construed, it might make it impossible to wind up the corpora- 
tion, or liquidate its liabilities, within that time. I believe the 
funds of several of these orders have already been withdrawn, 
without question, to be applied, wholly or partially, to payment 
of certificates not matured by lapse of time. There are other 
events beside the expiration of the specified period, which, in 
my opinion, are fully within the reasons of the statute, and may 
be taken, for the purposes of a requisition upon the Treasurer, 
as equivalent to the maturity of the certificate. If the corpora- 
tion is being properly wound up by any legal method, I see no 
reason why the funds may not be drawn for payment' of the 
certificates, notwithstanding the period of the certificates has not 
expired. 

The statute requires the requisition to set forth that the funds 
withdrawn are " to be used for the purposes of the trust " ; which 
is broad enough to cover all purposes lawfully consistent with the 
uses to which the funds are held, and any event or state of 
things which may be taken as equivalent, for purposes of pay- 
ment, to the maturity of the certificates by expiration of the full 
period. I find also, on looking at one of the certificates issued by 
the Order in question, that there is ground for regarding it as a 
matured certificate, in the sense of the statute, at least so far as 
the present inquiry is concerned. 

Very respectfully, your obedient servant, 

A. E. PiLLSBUKY, Attorney- General. 



[Power of legislature over railroad Corporations. Bill requiring all 
railroads to accept for passage over their own lines the mileage 
tickets of other railroads cannot upon its face be declared un- 
constitutional.] 

Attorney-Genekal's Depaktmext, 
Commonwealth Building, Boston, June 8, 1892. 

To the Honorable the President of the Senate. 

As requested by the Order of the honorable Senate, I respect- 
fully submit my opinion of the constitutionality of the Bill 
entitled, " An act to require railroad corporations to provide 
mileage tickets which shall be accepted for passage and fare 
upon all railroad lines in this Commonwealth." 

So far as I am informed, no provision of the bill is questioned 



1893.] PUBLIC DOCUMENT — No. 12. 23 

except that wliicli requires each railroad corporation to accept, 
for passage upon its line, the mileage tickets of other roads. 

It has been the law of Massachusetts since 1831 that all acts 
of incorporation shall at all times be liable to amendment, alter- 
ation or repeal, at the pleasure of the legislature. It' is no longer 
open to doubt that under this reserved power, if not independ- 
ently of it, the legislature may impose conditions or restrictions 
upon the exercise of a railroad franchise, within certain limits, 
which are broad enough to include the reasonable regulation of 
charges for the carriage of passengers, and the manner in which 
they may be enforced and collected. It has " the right to make 
any reasonable amendments regulating the mode in which the 
franchise granted shall be used and enjoyed, which do not defeat 
or essentially impair the object of the grant, or take away any 
property or rights which have become vested under a legitimate 
exercise of the powers granted." It is settled that, in the ex- 
ercise of this power, the legislature may subject the corpora- 
tion to additional burdens or expenses, 'without making or pro- 
viding compensation for its reduced profits or the impaired value 
of its franchise. 

The power does not extend so far as to include the absolute 
taking or destruction of property without compensation ; nor 
does it extend so far as to require the corporation to serve the 
public without reasonable compensation. In determining what 
regulations or restrictions are reasonable, under particular cir- 
cumstances, much is left to the discretion of the legislature, 
with which, if reasonably exercised, the courts will not inter- 
fere. 

If the requirement to carry passengers at a uniform rate of 
two cents per mile was in question, the validity of such a re- 
quirement might depend upon many facts which would be a 
subject of legislative inquiry. Such a requirement is, in my 
opinion, within the power of the legislature if two cents per mile 
is a reasonable rate under all the circumstances. I understand, 
however, that most, if not all, of the corporations to which the 
bill applies, are now and for some time past have been voluntarily 
issuing and selling mileage tickets at the price of twenty dollars 
for one thousand miles, and that the question at issue is only of 
the power of the legislature to require each corporation to accept 
all these tickets for passage over its own line. 

It is possible that this might in some cases result in compelling 
a corporation to carry passengers on the receipt of the tickets of 
another corporation which may be unable to redeem them, or 
whose credit or financial responsibility may be impaired ; but it 



24 ATTORNEY-GENERAL\S REPORT. [Jan. 

must be assumed that the legislature has considered this, with 
the other circumstances of the case, and it may have become 
satisfied that neither this' nor any other injury to the railroads is 
likely to result from the bill. I do not think it is to be assumed 
in advance that any such result will follow. Upon this point, as 
bearing upon the reasonableness of the requirement, the courts 
may properly consider the other provisions of the bill which are 
designed to protect the railroads against such consequences. The 
constitutionality of a legislative act is not necessarily to be 
tested by the most extreme case, nor is it necessarily unconstitu- 
tional because it might, in some possible contingency, subject a 
corporation to some unusual burden or disadvantage. If this is a 
reasonable requirement, in the public interest and for the public 
benefit, under the circumstances which affect the case, it is not, 
in m}^ opinion, beyond the power of tlie legislature. I conclude, 
therefore, that upon its face the bill cannot be declared unconsti- 
tutional. 

Very respectfully, your obedient servant, 

A. E. PiLLSBURY, Attorney-General. 



[Constitutionality of bill relating to deduction of wages for imper- 
fect work. Legislature has power to prohibit direct imposition 
of fines, but not to prevent employer from protecting himself by 
contract against liability to pay as much for imperfect as for 
perfect work, howsoever the imperfections arise.] 

Attornky-General's Department, 
Boston, June 9, 1892. 

To the Honorable the Speaker of the House of Representatives. 

As requested by the honorable House, in its order of 7th inst., 
I respectfully submit my opinion of the constitutionality of 
House Bill No. 510, entitled, " An Act to prohibit the deduction 
of the wages of employees engaged at weaving," with the 
pending amendments. 

In the light of the recent decision of the Supreme Court, 
under chapter 125 of the Acts of 1891, in Com. v. Perry 155 
Mass. 117, it may be assumed that it is within the power of the 
legislature to prohibit the direct imposition of a fine by an em- 
ployer for imperfect work, and that it is beyond the legislative 
power to prevent an employer from protecting himself by con- 
tract against the liability to pay as much for imperfect as for 
perfect work. 

Section 1 of the present bill appears to consist of three sepa- 
rate, or separable, propositions : First, the grading system 



1893.] PUBLIC DOCUMENT — No. 12. 25 

shall not aft'ect or lessen the weaver's wages unless the imperfec- 
tion arises from his carelessness or wilful neglect; second, in no 
case shall the weaver's wages be affected, by fine or otherwise, 
unless the alleged imperfection is pointed out to him ; and third, 
no fine shall be imposed for imperfect weaving, unless the above 
provisions are complied with. 

The first of these propositions is broad enough to forbid, and 
seems designed to forbid, any reduction or diminution of the 
weaver's wages, by contract or otherwise, except for imperfec- 
tions due to his carelessness or wilful neglect. I find no ground 
in the recent decision of the court on which a distinction can be 
maintained between imperfections due to the weaver's careless- 
ness or neglect, and those that may arise without carelessness or 
neglect. The court seems to hold that it is beyond the power 
•of the legislature to prevent the employer from protecting him- 
self by contract against the requirement or the liability to pay 
for imperfect work the price of good work, without reference to 
the question how the defects in the work arise. 

The second clause of the bill, taken by itself, does not inter- 
fere with the power of the employer to reduce or withhold the 
wages of the weaver, by fine or otherwise, except by annexing to 
its exercise the condition that the alleged imperfections in the 
work shall be pointed out to the weaver. This is merely a regu- 
lation, and apparently a reasonable regulation, of the exercise of 
the right of the employer to protect himself against the conse- 
quences of imperfect work. 

The third clause, that no fine shall be imposed except under 
certain circumstances, appears to me to be free of doubt as to its 
constitutionality, as the legislature may apparently prohibit the 
imposition of a fine under any circumstances. 

In my opinion, therefore, that part of the bill which provides 
that the grading system shall not affect or lessen the wages of 
the weaver except in case of imperfections arising from his care- 
lessness or wilful neglect, must now be regarded as open to objec- 
tion on constitutional grounds. Except to this extent, I do not 
think the bill can be said to exceed the power of the legislature. 
Very respectfull}^, your obedient servant, 

A. E. PiLLSBURY, Attorney- General. 



26 ATTORNEY-GENERAL'S REPORT. 



[In a special Act of the legislature, authorizing the taking by a 
church of the tombs and rights of burial therein, a provision that 
the measure of damages for the taking shall be the cost of a 
lot and tomb in a particular cemetery with the expense of 
removal of bodies and reinterment therein, is unconstitutional.] 

Attoknev-Genekal's Depaktment, 
Boston, June H, 1892, 

To the Honorable the Speaker of the House of Eepresentatives. 

I am requested by the order of this date of the honorable 
House to give my opinion of the constitutionality of the bill 
entitled, "An Act to authorize the Park Street Congregational 
Society in Boston to acquire all tombs and rights of interment 
under the meeting-house of said society, and to prohibit further 
interments therein." I understand that the question arises out 
of that part of section 1 which provides that in the appraisal of 
the damages for the taking of the tombs and rights of interment 
by the society the measure of damages shall be the cost of a 
burial lot and tomb in Forest Hills or Mount Auburn cemetery, 
with the expense of the removal and reinterment of bodies 
therein. 

In this, as in all cases of the taking of private property for 
a public use, or upon grounds of the public benefit, the property- 
owner is entitled to a trial by jury of the question of his 
damages. By express provision of Article X, of the Bill of 
Rights he is entitled to "reasonable compensation," and by the 
general rule of law which governs the assessment of damages in 
such cases, he is entitled to the fair value of the property taken ; 
and he is entitled to have this ascertained by and according to 
the judgment of the jury, under the rules of law. Otherwise he 
has only the form, without the substance, of trial by jury. The 
necessary effect of the bill, if allowed to operate, is to confine 
the jury, in assessing the damages for the taking of the property, 
to the cost of another piece of property, which is apparently 
treated by the bill as a substitute and equivalent for the rights 
and property taken, but which may be more or less. If the bill 
can be taken only as' prescribing a rule for the assessment of 
damages, it prescribes a special rule for a single case, which 
of itself is objectionable. In my opinion, the provision in 
question must be regarded as an impairment of the constitu- 
tional right of trial by jury, if it is not also a violation of the 
uniformity required in such legislation, and an invasion by the 
legislature of the province of the judiciary. 

Very respectfully, your obedient servant, 

A. E. PiLLSBURY, AttorneTj-GeneraL 



1893.] PUBLIC DOCUMENT — No. 12. 27 



[Under the Militia Act, chapter 411 of 1887, section 90, cities and towns 
are required to furnish, with the grounds or places for target 
practice, such targets and other structures as are reasonably 
necessary to the use of the place for that purpose.] 

Attoi;n'ey-Gexekal's Depaktjient. 
Commonwealth Building, Boston, July 2, 1892. 

To His Excellency the Governor. 

Upon the question raised by the coaimunication of Major 
William A, Pew, Jr., to the Adjutant-General, referred to me by 
your Excellency, I have to say that, in my opinion, cities and 
towns are required by section 90 of the revised militia act, chap- 
ter 411 of the Acts of 1887 (formerly Public Statutes, chapter 
14, section 92), to provide, with the grounds or places for target 
practice which that section requires them to furnish for the 
militia belonging within their respective limits, such targets and 
other structures as are reasonably necessary to the use of the 
place for that purpose. The policy of this section of the act is 
to make the local accommodation of the militia a local charge. 
The words " grounds or places for the parade, drill, and target 
practice of the militia," may be construed to include such struc- 
tures or other appurtenances as are necessary to the use of the 
grounds or places for the purposes for which they are provided ; 
and, in my opinion, in view of the intent and purpose of the 
statute, they are to be so construed. 

Very respectfully, your obedient servant, 

A. E. PiLLSBURY, Attorney-General. 



Attorney-Genekal's Department, 
Boston, July 23, 1892. 

To His Excellency the Governor, and the Honorable Council. 

I return herewith the petition of the members of the Passa- 
maquoddy tribe of Indians. The substance of the petition seems 
to be that the State of Maine has interfered with the hunting 
and fishing rights of the petitioners, in supposed violation of the 
obligations assumed by Maine under the Act of Separation ; that 
the courts of Maine deny or disregard these rights, and two of 
the tribe are now under conviction of some offence not specified, 
but committed, I presume, in the alleged exercise of some right 
which has been denied by the courts of Maine, which conviction 
is supposed to be reviewable by the Supreme Court of the United 
States. And the petition is that the Executive Department of 



28 ATTORNEY-GENERAL'S REPORT. [Jan. 

]\Iassacliusetts interveue and remove the case by writ of error to 
that court, in behalf of the persons so convicted. 

It is, of course, to be presumed that any judgment which the 
courts of Maine have rendered is in accordance with the laws of 
that State. If the laws of Maine are unjust to the petitioners, 
they should go to the legislature of Maine for redress. If the 
judgment of the Maine courts is in disregard of rights which be- 
long to the petitioners under the Act of Separation or otherwise, 
or operates to deprive the petitioners of such rights, it is possi- 
ble that it may be reviewable by the Supreme Court of the United 
States. But I see no reason to suppose that Massachusetts is 
under any obligation to the petitioners. The petition, at least, 
does not disclose enough to show any such obligation ; and it 
appears to me also that if Massachusetts is under any obliga- 
tion to interfere, or would be warranted in interfering, the case 
ought to be a subject of legislative action before any action of the 
Executive Department. It may be that a further presentation 
of facts would modify this view, but this is all that can be said 
upon the facts set out in the petition. 

Very respectfully, your obedient servant, 

A. E. PiLLSBURY, Attorney-General. 



[Under the Municipal Indebtedness Act, in ascertaining the indebt- 
edness of a city or town as affecting its borrowing power, its obli- 
gations for ordinary current expenses are excluded, and tem- 
porary loans in anticipation of taxes are included.] 

Attorney-Generai/s Department, 
Commonwealth Building, Boston, July 23, 1892. 

Hon. Geokge A. Makden, Treasurer. 

Sir: — I acknowledge the receipt of your inquiry whether, in 
considering the limit of municipal indebtedness as affecting the 
borrowing power, current obligations of the municipality for all 
purposes, such as bills due for various purposes, and loans made 
in anticipation of taxes, are to be included. 

It is practically settled that the Municipal Indebtedness Act 
does not apply to contracts for ordinary and lawful current 
expenses (144 Mass. 177) ; and if they are not within the act, 
they are not to be included in ascertaining the amount of 
indebtedness. The legislature doubtless considered that, in the 
ordinary course, these would not amount to a very large sura ; 
and that it might be difficult or impossible to ascertain the 
amount of them at any given time; and while they are not 



1893.] PUBLIC DOCUMENT — No. 12. 29 

expressly excepted, the court seems to consider that they are 
excluded by implication. 

But debts for temporary loans in anticipation of taxes are 
debts for borrowed money; and the principal, if not the sole 
purpose of the act was to restrain the borrowing power. These 
debts are fully within the language of the prohibitions of sec- 
tions 1 and 4, and are not within any of the express exceptions 
of the act ; and many, at least, of the reasons on which the act 
is based apply to such debts equally with any other. The only 
distinction in the act between temporary loans in anticipation of 
taxes and other debts for borrowed money is, that the former 
may be incurred by ordinary vote, and must be paid out of the 
taxes of the year (Statute 1885, chapter 312), while the latter 
require a two-thirds vote, and may be payable on longer periods. 
It is evident, I think, from the form in which the original Muni- 
cipal Indebtedness Act (chapter 209 of 1875) was re-enacted in 
1882 in chapter 29 of the Public Statutes, that the commissioners 
on revision, and the legislature understood that temporary loans 
in anticipation of taxes were not an exception to the act, but 
were included within it. The opposite construction, if it were 
possible under the language of the act, would open the way to 
evade it, and would be liable to lead to the very results which it 
was designed to prevent. I understand that a different view has 
been adopted in the practice of some cities, but it does not seem 
to me permissible, under the present form of the act. 

I am of opinion, therefore, that in ascertaining the amount of 
indebtedness of a city or town, as affecting its borrowing power, 
its obligations for ordinary current expenses are not to be in- 
cluded : but that debts for temporary loans in anticipation of 
taxes are to be included. 

Very respectfully, your obedient servant, 

A. E. PiLLSBURY, Attorney- General. 



Attoknky-General's Department, 
Commonwealth Building, Boston, Aug. 29, 1892. 

To His Excellency the Governor. 

I respectfully reply as below to your Excellency's request to 
be advised as to your authority, under chapter 101 of the 
Eesolves of 1892, to make the 400th anniversary of the discov- 
ery of America a day of thanksgiving, for the purposes of Public 
Statutes, chapter 77, section 8. 



30 ATTORNEY-GENERAL'S REPORT. [Jan. 

The statutes do not define what a legal public holiday is, nor 
what days shall be legal public holidays, except as to Labor Day 
(Acts of 1887, chapter 263), the Monday following Christmas, 
when that occurs on Sunday (Acts of 1882, chapter 49), and Me- 
morial Day (Acts of 1881, chapter 71) ; as to which it is provided 
only that each of these days shall be "A legal public lioliday to 
all intents and purposes in the same manner as Thanksgiving, 
Fast, and Christmas Days, the 22d of February, the 30th day of 
j\lay and the 4th day of July are now by law made public holi- 
days."' As to these days, the statutes provide only that the Gen- 
eral Court shall not sit, nor the public offices be open (Public 
Statutes, chapter 2, section 34) ; and that commercial paper, etc., 
falling due shall be payable on the preceding day (chapter 77, 
section 8) ; and that the courts shall not be opened except for 
certain necessary business (chapter 160, section 4). 

In my opinion, while the Resolve does not indicate the pur- 
pose of the legislature to make the day in question a legal pub- 
lic holiday, there is a sufficient implication, from section 8 of 
chapter 77, of authority in the Governor to appoint a day of 
fasting or thanksgiving at his discretion ; and under this implied 
authority you may, if you see fit, proclaim the anniversary 
referred to in the Resolve a day of thanksgiving, so as to bring 
it within the provisions of section 8. Your Excellency Avill 
naturally consider whether it is expedient to do this, in view of 
the fact that the legislature has acted upon the subject, and has 
confined itself to requesting " a due observance " of the anniver- 
sary, without declaring, or directing it to be declared, a legal 
public holiday. 

Very respectfully, your obedient servant, 

A. E. PiLLSBURY, Attorney- General. 



[GuardiansMp. The provision of Public Statutes, chapter 79, section 
13, for the consent of the guardian of an insane person to his 
transfer by the State Board from one asylum to another does 
not operate to prevent the transfer of one who has no guardian.] 

Attorxey-Genehal's Department, 
Commonwealth Building, Boston, Sept. 9, 1802. 

Hon. George W. Johnson, Chairman of Committee. 

Sir: — The questions submitted to me by order of the State 
Board of Lunacy and Charity, as to the construction of the last 
clause of section 13 of chapter 79 of the Public Statutes, as 
stated in your letter of 7th inst., are in my opinion to be 
answered as follows : — 



1893.] PUBLIC DOCUMENT — No. 12. 31 

1. There is no natural guardian of a person of full age. The 
natural guardian of a minor is his father; and if he has no 
father, his mother. 

2. Natural guardianship of an insane minor does not continue 
after the minor arrives at the age of majority. 

3. In my opinion the transfer of an insane person from one 
asylum to another, provided for by the final clause of section 13, 
is not limited to those who have a legal or natural guardian. It 
is possible to suppose either that the legislature intended to 
make the consent of the guardian an absolute limitation upon 
the power of transfer, so that it cannot be exercised in any case 
in which there is no guardian ; or that the purpose was only to 
provide that the transfer shall not be made without the consent 
of the guardian, if the insane person has a guardian. If the 
legislature had intended the former purpose, it would have been 
likely, I think, to express it in somewhat different language. 
The latter construction makes the statute more effective, by 
allowing it to operate upon all members of the class to which it 
applies, and is more consistent with its general purpose and 
object, which is the care and management of the insane by the 
Board, to which the consent of the guardian in the particular 
case is only an incident. This construction is somewhat strength- 
ened by the history of the clause in question. (Statute of 1880, 
chapter 250, section 4 ; Statute of 1881, chapter 183.) 

Very respectfully, your obedient servant, 

A. E. PiLLSBURY, Attorney -General. 



[Tenure of office of trustees of Hospital Cottages for Children, 
appointed by Governor under chapter 354 of 1890, terminates 
upon appointment of trustees under Statute 1892, chapter 407, 
if not upon the passage of the latter statute.] 

Attorney-General's Department, 
Commonwealth Building, Boston, Sept. 20, 1892. 

To His Excellency the Governor. 

In reply to your request to be advised as to the effect of 
chapter 407 of the Acts of 1892 upon the tenure of office of the 
eleven trustees of the Hospital Cottages for Children, appointed 
by the Governor under chapter 354 of the Acts of 1890, I have 
the honor to say that, in my opinion, the later act supersedes the 
forjner, and that it is now your duty to appoint five trustees as 
therein provided ; and that upon such appointment the tenure 
of office of the trustees appointed under the Act of 1890 will 



32 ATTORNEY-GENERAL'S REPORT. [Jan. 

terminate, if indeed it did not terminate with the passage of 
the Act of 1892. 

There is no doubt of the power of the legislature to put an 
end to the term of office of the first board of trustees ; and the 
general rule is that a statute which repeals, without any saving 
words, a former statute creating a special tribunal, puts an end 
to the tenure and authority of the tribunal, unless that is 
secured by constitutional provision or by other legislation which 
is obviously unaffected by the new act. I see nothing in the 
present statute to take it out of the operation of this rule. The 
purpose of the legislature seems to have been to change the 
scheme of management of the hospital by substituting five 
trustees for the eleven provided for by the Act of 1890 ; and 
this construction of the statute is very much strengthened by 
the express repeal of all that part of the former statute relating 
to the appointment of trustees. 

Very respectfully, your obedient servant, 

A. E. PiLLSBURY, Attorney-General. 



[Registration of Voters. Under the 30th Constitutional Amendment 
and Statute 1891, chapter 351, section 4, a voter who removes 
from one place to another within the Commonwealth during- the 
six months next preceding the election, may be registered and 
vote in the place where he resided on the first day of the six 
months' period, which day, when the election occurs November 
8th, is May 8th. If he removes after May 1st but on or before the 
first day of the six months, and remains until election in the 
place to which he so removes, he may be registered and vote in 
that place.] 

Attorney-Gexekal's Department, 
Commonwealth Building, Boston, Oct. 7, 1892. 

Hon. WiLiviAM M. Olin, Secretary of the Commonioenlth. 

SiK : — I reply as below to your request for my opinion upon 
certain questions arising under section 4 of chapter 351 of the 
Acts of 1892, relating to the right to vote of a person who 
removes from one place to another within the Commonwealth 
during the six months next preceding the election, which you 
state as follows : — 

1. A voter resided in A. jNIay 1, and removed to B. ]\ray 4, 
where he remains. In which of these places is he entitled to be 
registered and to vote ? 

2. A voter resided in A. May 1, removed to B. May 4, and 
from B. to C. August 1. In whicli of these three places is he 
entitled to be re<?istered and to vote ? 



1893.] PUBLIC DOCUMENT — No. 12. 33 

111 view of the general importance and interest of the subject, 
I waive the question whether you are required, by the statute of 
1891 or otherwise, to give any directions to town ofi&cers upon 
sucli a point. 

As the Constitution and laws stood prior to the adoption of 
the thirtieth constitutional amendment, in November, 1890, six 
months' continuous residence in one place next preceding the 
election was essential to the right to vote. The purpose of the 
amendment, and of section 4 of the Act of 1892 (originally sec- 
tion 1 of chapter 286 of the Acts of 1891) is to relieve a voter 
who removed during this period from the loss of his vote. They 
are to be liberally construed to this end, so far as may be. 

If a voter resides continuously in the same place for six 
months next preceding the election, he is not aiTected by the 
constitutional amendment or the legislation under it, but derives 
his right to vote from tliis period of residence, as lie did prior to 
the adoption of the amendment. Therefore, as the election this 
year occurs November 8, if he removed after May 1, and on 
or before May- 8, which is the first day of the period of six 
months next preceding the election, and remains in the place to 
which he thus removed until the election, he acquires the right 
to vote there. 

But if he removed after May 8, he ceases to be entitled to 
vote anywhere by virtue of six months' continuous residence 
next preceding the election, and comes within the operation of 
the amendment and the Act of 1892. In such case, he may vote 
in the place where lie would have been entitled to vote if he had 
not removed therefrom ; that is, in the place where he resided 
May 8. 

It follows that, in each of the cases stated by you, the voter is 
entitled to be registered and to vote in B. 

Very respectfully, your obedient servant, 

A. E. PiLLSBURY, Attorney -General. 



[Civil Service. Superintendent of Water Inspectors of Boston is not 

within the rules] 

AXTOKNEV-GliNlCKAL'S DEPAUTJIENT, 
COMMOXWEALTH BUILDING, BOSTON, Oct. 12, 1802. 

CiiAKLES Theodoris Russell, Ji{., Esq., 

Chairman Civil Service Commission. 
Sir : — In compliance with the request of the Commission for 
my opinion whether the position of Superintendent of Water 
Inspectors of the city of Boston is within the Civil Service rules, 



34 ATTORNEY-GENERAL'S REPORT. [Jan. 

I have to say that I do not find in the papers submitted to me 
sufficient reason to overrule the views of the Corporation Coun- 
sel and Water Registrar. The statement does not disclose that 
nis ordinary duties are in any part clerical, in the sense of the 
rules, and indicates the contrary ; so that, upon this statement, 
he cannot be included in class 3 of schedule A. The description 
of his duties in the statement of the Registrar would make it 
possible to bring him within the language of class 7 of schedule 
B, as a person "doing inspection service " ; but upon considera- 
tion of the entire law and system of rules, I think these words 
should not be construed to include him. Such inspection service 
as he has to do seems to be only of a supervisory character, and 
to be done as a superintendent rather than as an inspector. 
Without undertaking to lay down any rule of construction appli- 
cable to all cases, or any precise rule applicable to this case, it 
appears to me that the Civil Service act and the rules should, in 
general, be so construed as to distinguish between positions of 
routine, so to speak, which ordinarily do not involve administra- 
tive or discretionary powers, on the one hand ; and, on the 
other, positions which involve the exercise of judgment, discre- 
tion, authority, and responsibility ; and that the general scheme 
is to include the former and not to include the latter class 
within the system. The officer in question, so far as his duties 
are described to nie, seems to be within the latter class. 
Very respectfully, your obedient servant, 

A. E. PiLLSBUEY, Attorney-General. 



[Civil Service Act. Distinction between " oflace " and "employment." 
An oflQcer, in the sense of the law, is one who exercises some 
part of the power of government, or whose powers or duties are 
of an oflBcial character as distinguished from mere employment. 
The appointing board of a city cannot make an employee an 
"elective oflQcer " in the sense of section 15 of the act, nor take 
him out of the operation of the Civil Service rules, by going 
through the form of electing him ; and an appointment so made, 
without requisition or certification, is illegal.] 

ATXORNKY-GliNERAL'S DEPARTMENT, 

UOSTON, Nov. 21, 1892. 
To the Civil Service Commissioners. 

In compliance with your request, I submit my opinion upon 

the legality of the recent election of a female clerk by the 

Hoard of Overseers of the Poor of the City of Lawrence without 



1893.] PUBLIC DOCUMENT — No. 12. 35 

requisition upon the Civil Service board or certification of the 
person elected. It appears by your statement of the facts that 
" the position calls merely for clerical service and assistance to 
the chief clerk, for which the occupant receives about a dollar 
and a half a day ; " and that the Board of Overseers justifies its 
action upon the ground that the occupant was elected to the 
place, and so is an " elective officer," in the sense of section 15 
of the Civil Service Act; conceding, I presume, that she is 
within the Civil Service rules unless the fact that she was 
elected instead of being appointed takes her out of their oper- 
ation. 

The case appears to me to turn upon a different point. There 
is a recognized distinction between an office and an employmeiit 
under the government; and the Civil Service Act recognizes and 
affirms this distinction, by providing in one clause for 'Hhe selec- 
tion of persons to fill offices in the government of the Common- 
wealth, and of the several cities thereof," and in another for 
" the selection of persons to be employed as laborers or otherwise 
in the service of the Commonwealth, and the several cities 
thereof." The same distinction has often been recognized by the 
courts, and it has been judicially declared that an office, as dis- 
tinguished from an employment, involves " a delegation of a 
portion of the sovereign power to, and possession of it by, the 
person filling the office." 

The question whetlier this clerk is an officer or an employee 
of the city of Lawrence is easily answered, and the answer dis- 
poses of the case. She does not appear to have any part in the 
government of the city, or any powers or duties of an official 
character. On the contrary, her duties are plainly such as are 
properly described by the word " employment," as used in the 
statute. 

Under these circumstances, the method of selection is imma- 
terial, although other cases might turn upon it. The appointing 
board, by going through the form of an election, cannot make 
her an officer who obviously is only an employee. Nobody 
would contend that laborers on the streets or sewers, for example, 
can be made "elective officers " of the city by calling them so, or 
by electing them by ballot. The decisive question is whetiier 
the real character and functions of the place in question make it 
an office or an employment, in the sense of the law and in view 
of the distinction thereby established. It may be difficult in 
some cases to determine whether it is on the one side of the 
line or the other, but in the present case I see no room for 
doubt. 



36 ATTORNEY-GENERAL'S REPORT. [Jan. 

Upon your statement the clerk is not an " elective officer," in 
the sense of the law, and for this reason I am of opinion that 
the appointment, as made, is illegal. 

Very respectfully, your obedient servant, 

A. E. PiLLSBURY, Attorncij-General. 



[Prosecution of delinquent assessors.] 

Attornky-Gkneral's Department, 

CoMMONWEAI/rH BUILDING, BOSTON, Nov. liO, 1892. 

Hon. William M. Olin, Secretary. 

Sir: — In reply to j^our inquiry as to the proper proceedings 
to be taken for the enforcement of the returns of assessors, under 
section 56 of chapter 11 of the Public Statutes, I have to say that 
the penalty therein provided is to be enforced by action of tort, 
or indictment in the Superior Court ; and it will be proper for 
you to put the names and residences of the delinquents, with the 
particulars of the case, before the District Attorney of the dis- 
trict in which they reside, requesting liim to proceed for enforce- 
ment (jf the penalty. 

Very respectfully, your obedient servant, 

A. E. PiLLSBURY, Attorney-General . 



[Inspection of Cattle. The penalty provided by section 14 of chap- 
ter 252 of the Acts of 1887, cannot he enforced upon a city or 
town for failing to appoint inspectors as required by chapter 
432 of 1892.] 

Attouney-Geneual's Department, 

COJIMONWEAI/ril BUILDINCr, BOSTON, Dcc. 1, 1892. 

To Ills Excellency the Governor. 

In reply to your inquiry, in behalf of the Board of Cattle Com- 
missioners, whether section 14 of chapter 252 of the Acts of 1887, 
for the suppression of contagious diseases among domestic ani- 
mals, laying a penalty upon any person who fails to comply with 
a regulation made or order given by the Commissioners in the 
discharge of their duty, applies to the failure of a city or town 
to appoint inspectors as required by chapter 432 of the Acts of 
1892, so that a delinquent city or town thereby becomes liable 
to the penalty, I have the honor to say that, in my opinion, tlie 
penalty in question cannot be applied to such a case. 
Very respectfully, your obedient servant, 

A. E. PiLLSBUBY, Attorneij-Gencrat. 



1893.] PUBLIC DOCUMENT — No. 12. 37 

I Accident Insurance. It seems that the insurance laws do not forbid 
the purchase from a licensed broker or agent of policies of a 
foreign company, lawfully transacting business here, and the 
giving away of such policies by the purchaser as an advertise- 
ment of his business; but this cannot be lawfully done unless 
the purchaser^and distributor of the policies is duly licensed as 
an insurance agent or broker.] 

Attokney-Genei;.\i,'s Dkpautment, 
Boston, Dec. .•?, 1892. 

lion. Gkorge S. Mrrrill, Insurance Commissioner. 

Sir: — I have your letter of inquiry whether accident insur- 
ance policies of a foreign company, lawfully transacting business 
here, can be purchased by wholesale from a licensed agent or 
broker here, and given away by the purchaser as an advertise- 
ment of his own business or as otherwise stimulating his trade; 
and whether, in such case, the purchaser and distributor of the 
policies must be licensed as an insurance agent or broker, in 
order to lawfully transact this portion of the business. 

As to the first inquiry, whatever may be said of the policy or 
expediency of such a practice, and howsoever it might be re- 
garded by the courts in an action against the company on such a 
policy. I find nothing in the law to forbid it, either expressly or by 
necessary implication, and no penalty which can be applied to it. 

As to the second inquiry, it is plain that the purchaser and dis- 
tributor of the policies, under the circumstances stated, if not a 
duly licensed insurance broker, must be deemed an insurance 
agent, within the description of section 87 of the Insurance Act. 
He transmits for persons other than himself policies of insurance 
from the company, and offers and assumes to act in the negotia- 
tion of such insurance. Under the form of policy submitted with 
your statement, there is no completed contract until the auto- 
graph signature of the insured is affixed to the policy. The pur- 
chaser and distributor is the person who brings the insured to 
the company, or brings him to the making of a contract with the 
company ; and the contract is made, presumably, upon his sugges- 
tion or invitation to or solicitation of the person to be insured, 
and is presumably made and delivered in his place of business, 
and under his supervision ; and he is the only person who comes 
in contact with the insured in the negotiation or completion of 
the contract. 

I am of opinion, therefore, that such business cannot be law- 
fully transacted by any person not duly licensed as an insurance 
broker, or hav.ing a proper certificate of authority as an insur- 
ance agent. Very respectfully, your obedient servant, 

A. E. PiLLSBURY, Attorney-General. 



38 ATTORNEY-GENERAL'S REPORT. [Jan. 



Attorney -General's Department, 
Commonwealth Buildino, Boston, Dec 16, 1892. 

To His Excellency the Governor and the Honorable Council. 

Upon reviewing the case of the Passamaquoddy Indians, as 
presented in their petition, I find nothing to modify the view 
which I expressed to yon nnder date of July 23, 1892. It is 
clear that the Commonwealth of Massachusetts is under no legal 
obligation to the Passamaquoddy Indians. If it is under any 
moral obligation to them, it can hardly extend any farther than 
to see that they are not subjected to any injustice for which 
Massachusetts is in any degree responsible. They cannot be 
said to be unjustly dealt with under the judgment of the Supreme 
Court of Maine if that judgment is right; and I see no occasion 
to doubt that it is, and no reason to suppose that it can be or 
would be reversed if carried to the Supreme Court of the United 
States, as the petitioners desire. Nor, so far as I can see, is 
Massachusetts in the least degree responsible for the position, 
however unfortunate, in which the Indians now find themselves. 
At all events, the question whether Massachusetts sliould inter- 
fere in the case is a question for the legislative rather than the 
executive branch ; which, in my opinion, is not called upon to 
act unless it cliooses to bring the subject to the attention of the 
Legislature. The expediency of doing even this is, to say the 
least, open to question. 

Very respectfuWy, your obedient servant, 

A. E. PiLLSBUKY, Attorney-General. 



[Legacy Tax Act. Legacies to " literary, benevolent, charitable, and 
scientific institutions" incorporated in Massachusetts, are 
exempt from the tax. A legacy to such an institution incorpo- 
rated in another State and exempt from taxation there, is subject 
to the tax. Real estate in another State or country is originally 
exempt. Personal estate held in trust by a resident of Massa- 
chusetts for the benefit of a resident of another State for life, 
with a power or duty in the trustee thereafter to dispose of it by 
his own will, which he does, is thereupon subject to the tax.] 

Attorney-General's Department, 
(;():mai ON WEALTH Buildino, Boston, Dec. 17, 1892. 

Hon. GicoRGE A. Maiidkn, Treasurer. 

Siu : — I reply as below to your request to be advised as to tlie 
application of the Legacy Tax Act to certain bequests under the 



1803.] PUBLIC DOCUMENT — No. 12. 39 

will of George A. Stevens, late of Essex County, where the will 
was proved. 

First. If the National Sailors' Home and the Boston Marine 
Society come within the description of "literary, benevolent, 
charitable, and scientific institutions incorporated within this 
Commonwealth," they are exempt from taxation, and the legacies 
to them are not subject to the legacy tax. 

Secojid. In my opinion the legacy to the Marine General 
Hospital of Portland, Me., is subject to the tax. The exemp- 
tion of section 1 of the Legacy Tax Act extends, I think, only 
to such institutions whose property is exempted from taxation 
by our own law. And the fact that such an institution of another 
State may be exempted from taxation by the law of that State 
does not, in my opinion, bring it within the exemption of sec- 
tion 1. 

Third. Real estate in a foreign state or country, at least 
unless converted into personalty by the operation of the will, 
which is not the case here, is not "property within the jurisdic- 
tion of the Commonwealth," in the sense of section 1. The 
real estate in Calais, Me., is, therefore, not subject to the tax. 

Fourth. The fund of $4,293.39 held in trust by the testator 
under the will of his wife for the benefit of a resident of Maine 
for her life, and thereafter to be disposed of by the testator 
in the manner requested by his wife in her will, is property 
Avithin the jurisdiction of the Commonwealth and passed by the 
will of the testator, and is, therefore, within the description of 
section 1, and is subject to the tax. 

Very respectfully, your obedient servant, 

A. E. PiLLSBURY, Attorney- General. 



40 



ATTORNEY-GENERAL'S REPORT. 



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1893.] PUBLIC DOCUMENT — No. 12. 41 



APPEALS, EXCEPTIONS AND EEPORTS IN 
CRIMINAL CASES 

For the Year Ending Jan. 17, 1893. 



Barnstable Cou7ity. 



Commonwealth v. Sylvanus S. Dill and Lucincla Higgins (two cases). 
Indictment for lewd and lascivious cohabitation under Pub. Sts., 
c. 207, §6. Exceptions to rulings and evidence. Overruled. 
Motion in arrest. Appeal to full court. Not yet heard. 

Berkshire County. 

Commonwealth v. William Coy. Murder in the first degree. Excep- 
tions to rulings and evidence. Overruled. 

Bristol County. 

Commonwealth v. Francis X. Blanchette. Obtaining goods under a 
false pretence of carrying on business. Pub. Sts., c. 203, §G0. 
Exceptions to rulings. Overruled. 

Commonwealth v. Richard J. Dunleay. Publishing and uttering a 
forged application for insurance. Appeal and exceptions from 
order overruling motion to quash. Exceptions sustained. 

Commonwealth v. Frank H. Gould. Illegal sales of intoxicating 
liquor. Exceptions to rulings and evidence. Argued, but not 
yet decided. 

Commonwealth v. Henry Hawkins. Assault with a dangerous 
weapon. Exceptions to rulings. Overruled. 

Commonwealth v. Charles S. Joslin. Illegal sales of intoxicating 
liquor. Exceptions to rulings and evidence. Argued but not 
yet decided. 

Commonwealth v. Hungerford Lutton. Peddling oleomargarine 
without a license, in violation of Pub. Sts., c. 68, §16. Excep- 
tions to rulings. Sustained. 

Commonwealth v. Michael McDonnell et al. Possession of oleomar- 
garine, not properly marked, with intent to sell. Exceptions to 
rulings. Sustained. 

Commonwealth v. Thomas H. Mills. Same as Commonwealth v. 
McDonnell. Exceptions sustained. 



42 ATTORNEY-GENERAL'S REPORT. [Jan. 

Commonwealth v. Edward Morrissey. Drunkenness, in violation of 
St. ISyi, c. 427. Exceptions to rulings. Overruled. 

Commonwealth v. Arthur Poisson. Exposing and keeping intoxicat- 
ing liquors for sale, and disorderly house. P^xceptions to rulings 
and evidence. Overruled. 

Commonwealth v. Holder A. Tripp. Liquor nuisance. Exceptions 
to rulings. Overruled. 

Commonwealth v. Thomas S. Vose. Abortion. Exceptions to evi- 
dence. Overruled. 

Commonwealth v. John Ward. Assault. Exceptions to rulings. 
Overruled. 

Commonwealth v. Willard F. Woodward. Soliciting another to com- 
mit murder. Appeal from order sustaining demurrer to a special 
plea. Conviction to stand. 

County of Dukes County. 

Commonwealth v. John D. Wright et al. Assault. Exceptions to 
rulings. Argued but not yet decided. 

Essex County. 

Commonwealth v. John Fagan. Having parts of uncooked lobsters 
in possession. Appeal from order overruling motion to quash. 
Waived. 

Commonwealth v. John Hussey and Agatha Shaw. Adultery. Ex- 
ceptions to rulings. Argued by the district attorney for the 
Eastern district. Exceptions overruled. 

Commonwealth v. Frank H. Rea, Possession of milk below standard 
quality, with intent to sell. Exceptions waived. 

Commonwealth v. Richard Ruggles. Adultery. Exceptions to evi- 
dence. Waived. 

Commonwealth v. James E. Sails. Possession of milk not of stan- 
dard quality. Exceptions to rulings. Waived. 

Franklin County. 

Commonwealth v. John Nagle. Sales of intoxicating liquor to a 
minor. Argued by the district attorney for the north-western 
district. Overruled. 

Hampden County. 

Commonwealth v. Wallace W. Holmes. Murder in the first degree. 
Exceptions to rulings and evidence. Overruled. 

Middlesex County. 

Commonwealth v. Benjamin O. Banks. Illegal sale of intoxicating 
liquor. Exceptions to rulings. Overruled. 

Commonwealth v. Henry C. Brothers. Illegal sales of intoxicating 
liquor. Exceptions to rulings. Not yet heard. 



1893.] PUBLIC DOCUMENT — No. 12. 43 

Commonwealth v. James W. Doherty. Liquor nuisance. Excep- 
tions to rulings. Defaulted. 

Commonwealth v. William B. Fletcher. Liquor nuisance. Excep- 
tions to rulings. Overruled. 

Commonwealth v. Theodore E. Graham. Non-support of wife. St. 
1885, c. 176. Exceptions to rulings. Overruled. 

Commonwealth v. Foster Ham. Non-support of wife. St. 1885, c. 
176. Exceptions to rulings and evidence. Overruled. 

Commonwealth v. Bridget Hurley. Exposing and keeping intoxicat- 
ing liquors for sale. Exceptions to rulings. Not yet heard. 

Commonwealth v. John F. Igo. Illegal transportation of liquor into 
a town where intoxicating liquors are not licensed to be sold. 
Exceptions to rulings. Not yet heard. 

Commonwealth v. Nathan B. Laphara. Bribery of a milk inspector. 
Exceptions to rulings and evidence. Overruled. 

Commonwealth v. Michael McCauley. Illegal keeping of intoxicat- 
ing liquors. Exceptions to rulings. Overruled. 

Commonwealth v. William McKenna. Exposing and keeping intox- 
icating liquor for sale. Exceptions to rulings and evidence. 
Not yet heard. 

Commonwealth v. John McNeese. Exposing and keeping intoxicat- 
ing liquors for sale. Exceptions to rulings. Overruled. 

Commonwealth v. James Munn. Illegal keeping of intoxicating 
liquors for sale. Exceptions to rulings. Overruled. 

Commonwealth v. Thomas Parks and William H. Riley. Violation 
of city ordinance prohibiting blasting without consent of board 
of aldermen. Exceptions to rulings. Overruled. 

Commonwealth v. James H. Riley. Illegal keeping of intoxicating 
liquor. Exceptions to rulings. Overruled. 

Commonwealth v. James Albert Trefethen. Murder in the first de- 
gree. Exceptions to rulings and evidence. Verdict set aside. 

Nantucket County. 

Commonwealth v. Charles H. Cox. Cruelly overdriving a horse. 
Exceptions to rulings. Waived. 

Norfolk County. 

Commonwealth v. Dominic Caponi. Polygamy. Exceptions to rul- 
ings and evidence. Overruled. 

Commonwealth v. John Colligan. Assault on an officer. Exceptions 
to rulings. Not yet heard. 

Commonwealth v. Fergus Conn. Liquor nuisance. Exceptions to 
rulings and evidence. Waived. 

Commonwealth v. Mary Cough) in. Illegal sales of liquor. Excep- 
tions to order overruling motion to quash. Defaulted. 



44 ATTORNEY-GENERAL'S REPORT. [Jan. 

Commonwealth v. Peter Dixon, Having sliort lobsters in possession. 
Exceptions to rulings. Waived. 

Commonwealth v. Edward H. Galligan (two cases). 1. Illegal 
keeping of intoxicating liquors. Exceptions to evidence and 
rulings. Overruled. 2. Liquor nuisance. Exceptions to 
rulings and evidence. Sustained. 

Commonwealth v. Thomas Hicks. Illegal sales of intoxicating 
liquor. Exceptions to evidence. Defaulted. 

Commonwealth v. Emory Lane. Surbornation of perjury. Appeal 
from order overruling motion to quash. Judgment affirmed. 

Commonwealth v. Andrew Peterson. Having short lobsters in pos- 
session. Exceptions to rulings. Waived. 

Commonwealth v. George H. Stackpole (two cases) . Wilful and 
malicious burning a barn in the night time.. Exceptions to evi- 
dence. Defaulted. 

Commonwealth v. Thomas F. Sheedy. Lottery. Exceptions to 
rulings. Not yet heard. 

Commonwealth v. Thomas J. Sullivan. Liquor nuisance. Excep- 
tions to evidence and rulings. Overruled. 

Commonwealth v. Thomas J. Sullivan. Liquor nuisance. Excep- 
tions to evidence. Overruled. 

Commonwealth v John E. Welch et als. Assault and battery. Ex- 
ceptions to rulings. Defaulted. 

Plymouth County. 

Commonwealth v. William H. Barry. Breaking and entering with 
intent to commit larceny. Waived. 

Commonwealth v. Elizabeth A. Tibbetts. Administering medicine, 
with intent to procure abortion, and advertising such business. 
Exceptions to evidence and rulings. Overruled. 

Commonwealth v. Thomas M. Lucas. Polygamy. Exceptions to 
evidence and rulings. Sustained. 

Suffolk County. 

Commonwealth v. James Armstrong. Robbery. Exceptions to evi- 
dence. Overruled. 

Commonwealth v. Charles W. Bingham. Forgery of a deed. Excep- 
tions to evidence and rulings. Not yet heard. 

Commonwealth v. Samuel F. Brown (two cases). Exposing and 

keeping intoxicating liquor for sale. Exceptions to rulings. 

Defaulted. Appeal from order overruling motion in arrest. Not 

yet heard. 
Commonwealth v. Patrick Canny. Exposing intoxicating liquor 

with intent to sell. Exceptions to rulings. Not yet heard. 



1893.] PUBLIC DOCUMENT — No. 12. 45 

Commonwealth v. John F. Coleman. Sale of milk not of standard 
quality. Exceptions to rulings. Overruled. 

Commonwealth v. Leonard R. Cutter. Violation of city ordinance 
relating to removal of filth from passageway. Exceptions to 
rulings. Overruled. 

Commonwealth v. Jerome W. Ellis. Selling flowers on street in 
violation of city ordinance. Argued but not yet decided. 

Commonwealth v. Frank Healey et al. Registering bets and selling 
pools. Exceptions to rulings and evidence. Overruled. 

Commonwealth v. Lawrence Kane. Exposing and keeping intox- 
icating liquor for sale. Exceptions to rulings. Defaulted. 

Commonwealth v. James Lowrey et al. Breaking and entering in the 
night time with intent to commit larceny. Exceptions to 
rulings. Overruled. 

Commonwealth v. George W. Meserve (two cases). 1. Exceptions 
to rulings on motion to fix time for sentence. Overruled. 2. 
Exceptions to rulings, and to exclusion of evidence on motion 
for a new trial. Overruled. 

Commonwealth v. Terrence F. McHugh. Assault upon an oflScer. 
Exceptions to rulings. Overruled. 

Commonwealth v. James Morgan, alias Shang Campbell. Larceny. 
Exceptions to rulings and evidence. Sustained. 

Commonwealth v. John Odenweller. Keeping a barking dog in vio- 
lation of city ordinance. Exceptions to rulings. Overruled. 

Commonwealth v. Charles H. Russell. Forgery. Exceptions to 
rulings and evidence. Overruled. 

Commonwealth v. Austin R. Smith. Accessory before fact to 
forgery of a deed. Exceptions to rulings and evidence. De- 
faulted. 

Commonwealth v. John Stewart. Furnishing butterine to a guest at 
a hotel without notice. Exceptions to rulings. Not yet heard. 

Commonwealth v. Sophia C. Thompson. Abortion. Exceptions to 
rulings and evidence. Not yet heard. 

Commonwealth v. Alexander Byrnes. Exposing oleomargarine for 
sale in imitation of butter in violation of St. 1891, c. 58, §1. 
Report. Not yet heard. 

Commonwealth v. Charles F. Crane. Violation of St. 1891, c. 412, 
§4, in failure to have placarded upon the outside of his vehicle 
the words, " Licensed to sell oleomargarine." Report. Not 
yet heard. 

Commonwealth v. John W. Gordon. Sale of adulterated milk in 
violation of Pub. Sts., c. /)7, §5. Exceptions to rulings. Not 
yet heard. 



46 



ATTOENEY-GENERAL'S REPORT. 



[Jan. 



Worcester County. 

Commonwealth v. Moore. Illegal keeping of intoxicating liquor. 
Exceptions to rulings and evidence. Overruled. Argued by 
the district attorney for the middle district. 

Commonwealth v. Michael J. Ryan. Alteration of a ballot cast for i 

the office of governor. St. 181)0, c. 423, §131. Exceptions to \ 

evidence. Overruled. Argued by the district attorney for the j 

middle district. i 



Table showing the yrumber of Criminal Cases pending on Questions of 
Law in the Supreme Judicial Court during the Year ending Jan. 
17, 1893, and the Disposition thereof by Counties. 



COUNTIES. 


1 

1 
i 


B 

s 

ll 


1 


i 
1 


1 

1 


1 

1 


i 
1 


Barnstable, 


2 


1 


- 


_ 


- 


1 


- 


Berkshire, 


1 


1 


- 


- 


- 


- 


- 


Bristol, 


U 


8 


4 


- 


- 


- 


2 


County of Dukes County, 


1 


- 


- 


- 


- 


- 


1 


Essex, 


5 


1 


- 


- 


4 


_ 


- 


Franklin, 


1 


1 


_ 


- 


- 




- 


Hampden, 


1 


1 




- 




~ 


- 


Middlesex, 


16 


10 


1 


1 


- 


4 


- 


Nantucket, 


1 


- 


- 


- 


1 


- 


- 


Norfolk 


16 


5 


1 


5 


3 


2 


- 


Plymouth, 


3 


1 


1 


- 


1 


- 


- 


Suffolk, 


23 


10 


1 


3 


- 


8 


1 


Worcester, 


2 


2 


_ 


_ 


_ 


_ 


- 


Total, 


86 


41 


8 


9 


9 


15 


4 



1893.] 



PUBLIC DOCUMENT— No. 12. 



47 



Table showing the Number and Character of Criminal Cases pending 
on Questions of Law in the Supreme Judicial Court during the 
Tear ending Jan. 17, 1893, and the Disp)osition thereof. 



OFFENCES. 



i 


a 
5 

11 

1' 


c S 

1^ 


1 
1 


3 


cbOS 

IP 
III 


3 


2 








1 


1 


_ 


_ 


_ 


1 




2 




_ 


1 




_ 


1 




- 


- 


1 


- 


2 
1 






- 


- 


1 


2 

1 
2 




- 


1 


_ 


_ 


- 


- 


- 


2 


- 


1 


_ 


_ 


_ 


_ 


1 


4 


3 


- 


- 


- 




2 


2 


_ 


_ 






1 


1 


. 


_ 


_ 


_ 


3 


1 


1 


_ 


_ 


1 


8 


2 


- 


_ 


2 


4 


5 


5 


- 


- 


_ 


_ 


7 


4 


1 


1 


1 


_ 


7 


2 


_ 


_ 


2 


1 


1 


- 


_ 


_ 


_ 


1 


1 


- 


1 


_ 


_ 




2 


1 


_ 


_ 


_ 


1 


3 


- 


_ 


3 


_ 


_ 


1 


_ 


_ 


_ 


_ 


1 


4 


1 


_ 


2 


_ 


1 


3 


2 


1 




_ 




2 


2 


_ 


_ 


_ 


_ 


1 


1 


- 


_ 


_ 


_ 


1 


- 


- 


~ 


_ 


1 


1 




1 


_ 


_ 


_ 


2 

1 
1 


- 


2 


- 


- 


1 


_ 


_ 


1 


_ 


2 
1 
1 


1 
1 
1 


1 


- 


~ 


"" 


1 
1 


1 
1 


- 


- 


- 


- 


86 


41 


8 


9 


9 


15 



Abortion, 

Accessory before fact to forgery, 

Adultery, 

Assault, 

Assault with dangerous weapon, 
Assault upon officer in the discharge of 

his duty, 

Ballot, alteration of, 

Breaking and entering with intent to com- 
mit larceny, 

Bribery, ....... 

Burning barn in night time, 
Butterine, furnishing to guests without 
notice, ....... 

City ordinance, violation of, . 
Conspiracy to obtain goods by false pre- 
tences, 

Drunkenness, 

Forgery, 

Intoxicating liquors, exposing and keeping, 

keeping, illegal, .... 

nuisance, 

sale of, illegal, 

transportation, illegal. 

Larceny, 

Lewd and lascivious cohabitation, . 
Lobster's, violations of laws protecting, . 

Lottery, 

Milk,violations of laws regulating sales of, 

Murder, 

Non-support of wife, .... 

Obtaining goods under false pretences, . 
Oleomargarine, exposing imitation, . 

peddling without license, . 

possession of not marked, . 

selling from vehicle not marked, . . 

Overdriving horse, 

Polygamy, 

Registering bets and selling pools, . 
Robbery, ....... 

Soliciting to murder, .... 

Subornation of perjury, .... 



48 ATTORNEY-GENERAL'S REPORT. [Jan. 



mrORMATIONS EX-OFFICIO. 



Attorney-General v. Selectmen of Westborough, Worcester, ss. 
Application for mandamus to compel the respondents to grant a 
druggist's license. Suspended. 

Attorney-General v. Boston & Albany Railroad Company. Appli- 
cation for mandamus to compel the respondent to provide mileage 
tickets which shall be accepted for passage and fare upon all 
railroad lines in this Commonwealth, as provided by St. 1892, c. 
389. Pending. 

Attorney-General v. Boston & Maine Railroad. Same as above. 

Attorney-General v. Old Colony Railroad Company. Same as above. 

Attorney-General v. Fitchburg Railroad Company. Same as above. 

Attorney-General v. New York & New England Railroad Company. 
Same as above. 

Attorney-General v. Connecticut River Railroad Company. Same as 
above. 



1893.] PUBLIC DOCUMENT — No. 12. 49 



INFOKMATIONS. 



At the Relation of the Treasurer and Receiver-General. 

1. For the non-payment of corporation taxes for the year 1891 
against the — 

Abbott Slipper Company. Enjoined. Tax afterward paid. 

Aeworth Manufacturing Company. Paid. Information dismissed. 

Allen & Rowell Company. Paid. Information dismissed. 

Alta Manufacturing Company. Enjoined. 

Bartlett Automatic Elevator Company. Paid. Information dis- 
missed. 

Blair Camera Company. Paid. Information dismissed. 

Boston Advertising Company. Paid. Information dismissed. 

Boston Ball Club. Enjoined. 

Boston Oakum Company. Enjoined. 

Boston Wall Paper Company. Paid. Information dismissed. 

Brockton Gazette. Pending. 

Brookfield Brick Company. Paid. Information dismissed. 

C. AV. Mutell Manufacturing Company. Paid. Information dis- 
missed. 

Chas. W. Copeland Manufacturing Company. Unpaid. Dissolved 
by St. 1892, c. 75. 

Chelsea Express Despatch Company. Paid. Information dismissed. 

Chelsea Wire Fabric Company. Paid. Information dismissed. 

Coburn Shuttle Company. Paid. Information dismissed. 

Commercial Pottery Company. Enjoined. 

Cosmopathic Medical Institute, etc. Enjoined. 

Damon Narrow Fabric Company. Paid. Information dismissed. 

Foote Refrigerator Company. Enjoined. 

George E. Read Furniture Company. Paid. Information dismissed. 

H. A. Williams Manufacturing Company. Paid. Information dis- 
missed. 

Haverhill Roller Toboggan Company. Enjoined. 



50 ATTORNEY-GENERAL'S REPORT. [Jan. 

Haydenville Manufacturing Company. Paid. Information dis- 
missed. 

Hull Street Railroad Company. Paid. Information dismissed. 

Hydraulic Manufacturing Company, Paid. Information dismissed. 

L. A. May Company. Paid. Information dismissed. 

Massachusetts & Southern Construction Company. Enjoined. 

Massachusetts Dredging Company. Paid. Information dismissed. 

McDonnell Bros. Printing and Publishing Company. Enjoined. 

Middleborough Gas and P^lectric Company. Abated. Information 
dismissed. 

Morse Manufacturing Company. Paid. Information dismissed. 

Nantucket Electric Street Railroad Company. P^n joined. 

National Fire Works Company. Paid. Information dismissed. 

National Mortgage and Debenture Company. Paid. Information 
dismissed. 

National Plaster Company. Paid. Information dismissed. 

New P^nglaud Wire Goods Company. Enjoined. 

New York & Boston Inland Railroad Company. Paid. Information 
dismissed. 

Owen Paper Company, Paid. Information dismissed. 

Pard Co-operative Shoe Company. Enjoined. 

Quaboag Steamboat Company. Paid. Information dismissed. 

Queen Hotel Company. Paid. Information dismissed. 

Raymond Skate Company. Paid. Information dismissed. 

S. C. Devlin Company. Abated. Information dismissed. 

Salem Press Publishing and Printing Company. Enjoined. Tax 
afterward paid. 

Security Associates. Pending. 

Southbridge Co-operative Grocery Company. Paid. Information 
dismissed. 

Union Publishing Company. Paid. Information dismissed. 

Waltham Watch Tool Manufacturing Company of Springfield. Paid. 
Information dismissed. 

Winship Daniels Company. Paid. Information dismissed. 

Woburn Electric Light Company. Paid. Information dismissed. 



2. For failure to make returns as required by Pub. Sts. , c. 13, §38 : — 

Atherton Machine Company. Return filed. Information dismissed. 
Baker Telegraph Index Tablet Company. Pending. 



181>3.] PUBLIC DOCUMENT — No. 12. 51 

Bay State Leather Coat Mauufacturing Company. Pending. 

Boston Furniture Company. Return filed. Information dismissed. 

Boston Oakum Company. Pending. 

Burleigh Hock Drill Company. Return filed. Information dis- 
missed. 

Byfield Mauufacturing Company. Return filed. Information dis- 
missed. 

Cedar Street Co-operative Association. Statement filed. Informa- 
tion dismissed. 

Central Tow Boat Company. Return filed. Information dismissed. 

Chicopee Electric Light Company. Return filed. Information dis- 
missed. 

Damon Narrow Fabric Compan3^ Return filed. Information 
dismissed. 

Diamond Safety Razor Company. Return filed. Information 
dismissed. 

Dorchester Chemical Company. Pending. 

Draper Manufacturing Company. Return filed. Information dis- 
missed. 

Excelsior Umbrella Manufacturing Company. Pending. 

Forest Avenue Street Railroad Company. Return filed. Informa- 
tion dismissed. 

Gardner Gas Light Company. Pending. 

George H. Wood Company. Return filed. Information dismissed. 

Hampden Watch Company. Return filed. Information dismissed. 

Haverhill Iron Works. Return filed. Information dismissed. 

Interstate Street Railroad Company. Information discontinued. 

J. G. Cupples Company. Return filed. Information dismissed. 

L. A. May Company. Return filed. Information dismissed. 

Le National Publishing Company. Pending. 

Merrimack Valley Felt and Woolen Company. Statement filed. 
Information dismissed. 

N. Rich Fish Weir Company. Pending. 

Nantucket Electric Street Railroad Company. Pending. 

Nashua, Acton & Boston Railroad Company. Pending. 

New England Trade Association. Statement filed. Information 
dismissed. 

Old Colony Machine Company. Statement filed. Information dis- 
missed. 

Owen Paper Company. Return filed. Information dismissed. 



52 ATTOKNEY-GENERAL'S REPORT. [Jan. 

Pequaig Soapstoue Compauy. Pending. 

Post Printing Company, Return filed. Information dismissed. 

Monson Woolen Company. Return filed. Infoi'mation dismissed. 

Morley Paper Company. Return filed. Information dismissed. 

Raymond Skate Company. Pending. 

Riverside Manufacturing Company. Return filed. Information 
dismissed. 

Sewing Machine Supplies Company. Return filed. Information 
dismissed. 

Somerville Trust Company. Pending. 

Springfield Brass Company. Return filed. Information dismissed. 

Union Loan and Trust Company. Pending. 

Weymouth Light and Power Company. Pending. 



At the Relation of Private Persons. 

Attorney-General ex rel. Levi L. Hammond et al. v. County Com- 
missioners of Worcester. Alleged wrongful discontinuance of grade 
crossing over Boston & Albany Railroad in Charlton. March 11, 
1892. Heard, and use of name refused. 

Attorney-General ex rel. Oscar N. Kenerson et al. v. Samuel S. 
Pratt. Information in nature of quo ivarranto against a Selectman 
of Revere. March 29, 1892. Heard, and use of name granted. 

Attorney-General ex rel. A. C. Slater et als. v. William C. Rust 
et al. Application for information in nature of quo ivarranto. July 
15, 1892. Hearing, and proceedings suspended. 

Writs of Error. 

The following petitions for writs of error were brought during the 
year ending Jan. 17, 1893 : — 

Benson, William T., v. Commonwealth. To superior court. Pend- 
ing before the full court. 
Gavin, John H., -y. Commonwealth. To superior court. Pending. 
Sturtevant, Frederick, v. Commonwealth. To superior court. Pend- 



ing before full court. 



Habeas Cori'I' 



The following applications for the writ of habeas corpus were 
made during the year ending Jan. 17, 189.3. All the cases were heard 
and disposed of in the supreme judicial court in Suffolk : — 



1893.] PUBLIC DOCUMENT — No. 12. 53 

Benson, William T., petitioner. July 29, 1892. Hearing before 
Morton, J., and writ denied. 

Dowd, J. J., petitioner, on behalf of Mary, Ann, John and Williani 
McSweeney, for release from State Primary School. Nov. 25, 
1892. Hearing before Lathrop, J. Writ issued. 

Gavin, John H., petitioner. March 2, 1892. Hearing before Allen, 
J. March 4, 1892. Writ denied. 

Goodroad, John, petitioner. May 17, 1892. Hearing before Lath- 
rop, J. Writ denied. 

Goldmann, Barnet, petitioner, on behalf of Moses Goldmann, for 
release from State Almshouse at Tewksbury. Nov. 25, 1892. 
Hearing before Lathrop, J. Writ issued. 

Kailiher, Jeremiah, petitioner. March 1, 1892. Hearing before 
Allen, J. Writ denied. 

Preston, James, petitioner. Application for reduction of bail. 
Hearing before Lathrop, J. Application refused. 

O'Brien, Patrick, petitioner. March 23, 1892. Hearing before 
Allen, J. Writ denied. 



54 ATTOENEY-GENERAL'S EEPORT. [Jan. 



GKADE CROSSINGS. 



Notice has been served upon this department of the filing of the 
following petitions for the appointment of special commissioners, 
under St. 1890, c. 428, relating to the abolition of grade crossings. 

Berkshire County. 

Richmond, Directors of Boston & Albany Railroad Company, peti- 
tioners. Pending. 

Bristol County. 

Attleborough, Directors of Old Colony Railroad Company, petitioners. 
Commissioners appointed. Hearing. 

Essex County. 

Swampscott, Selectmen of, petitioners. Commissioners appointed. 
Hearing. Report partially confirmed. 

Hampden County. 
Palmer, Selectmen of, petitioners. Pending. 

Springfield, Mayor and Aldermen of, petitioners. Bay Street, Bos- 
ton Road, Wilbraham Road, Alden and Hickory streets, cross- 
ing the New York & New England Railroad. Pending. 

Hamx>sliire County. 
"Ware, Selectmen of, petitioners. Commissioners appointed. 

Middlesex County. 

Ashland, Directors of Boston & Albany Railroad Company, peti- 
tioners. Commissioners appointed. Hearing. 

Natick, Directors of Boston & Albany Railroad Company, petitioners. 
Commissioners appointed. Hearing. 

Watertown, Selectmen of, petitioners. Commissioners appointed. 
Hearing. 

Somerville, Mayor and Aldermen of, petitioners. Pending. 



1893.] PUBLIC DOCUMENT — No. 12. 55 

Snjfolk County. 
Boston, Mayor and Aldermen of, petitioners. Eleven petitions : — 

1. Clyde, Marginal, Webster, Sumner, Maverick, Prescott, Ben- 

nington, Saratoga, Curtis and Decatur streets. East Boston, 
across tracks of Eastern Railroad Company. 

2. Same streets as above, crossing the tracks of the Boston & 

Albany Railroad Company. 

3. Causeway and Travers streets, Boston, ci'ossing the tracks of 

the Boston & Maine Railroad. 

4. Austin, Cambridge and Perkins streets, Charlestown, cross- 

ing the tracks of the Boston & Maine Railroad. 

5. Same streets as above, crossing the tracks of the Eastern Rail- 

road Company. 

6. Austin Street, Warren Avenue and Charles River Avenue, 

Charlestown, crossing the tracks of the Fitchburg Railroad 
Company. 

7. Rutherford Avenue, Main Street and Chelsea Street, Charles- 

town, crossing the tracks of the Boston & Lowell Railroad 
Company. 

8. A Street, Congress Street, Northern Avenue and West First 

Street, South Boston, crossing the tracks of the New York 
& New England Railroad Company. 

9. Congress Street, South Boston, crossing the tracks of the New 

York & New England Railroad Company. 

10. Dorchester Avenue and West Fourth Street, South Boston, 

crossing the tracks of the Old Colony Railroad Company. 

11. Dorchester Avenue, Dorchester, crossing the tracks of the Old 

Colony Railroad Company. 

Boston, Directors of Old Colony Railroad Company, petitioners. 
West Fourth Street. Commissioners appointed. Hearing. Decree. 

Boston, Directors of Old Colony Railroad Company, petitioners. 
Codman Street, Boston. Pending. 

Chelsea, Mayor and Aldermen of, petitioners. Crossings on Chelsea 
bridge and Chelsea Bridge Avenue, over Boston & Maine Rail- 
road. Under St. 1892, c. 374, Commissioners appointed. 
Hearing. 

Worcester County. 

Fitchburg, Mayor and Aldermen of, petitioners. Pending. 

Leicester, Directors of Boston & Albany Railroad Company, peti- 
tioners. Pending. 

Warren, Directors of Boston & Albany Railroad Company, petition- 
ers. Pending. 

Worcester, Directors of Boston & Albany Railroad Company, peti- 
tioners. Pending;. 



56 



ATTORNEY-GENERAL'S REPORT. 



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ATTORNEY-GENERAL'S REPORT. 



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PUBLIC DOCUMENT — No. 12. 



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60 ATTORNEY-GENERAL'S REPORT. [Jan. 

The foUowiug corporatious, having made voluutary application to 
the Supreme Judicial Court for dissolution, and having given the 
Attorney-General due notice of their petition, and the Tax Commis- 
sioner having certified that they were not indebted to the Common- 
wealth for taxes, the Attorney-General waived the right to be 
heard : — 

American Molded Collar Company. 

American Tack Company. 

Boston and Sandwich Glass Company. 

Boston Steam Fitters' Association. 

Boston Stock Transfer Company. 

Cambridge Kolling Mills. 

Charles River Towing Company. 

Diamond Tack and Narl Company. 

Evening Mail Company (Fitchburg) . 

Franconia Iron and Steel Works. 

George E. Read Furniture Company. 

Huntington Storage Warehouse Company. 

Ideal Coffee Company. 

J. S. Allen »fe Shaw Shoe Company. 

Maine Manufacturing Company. 

Messinger Manufacturing Company. 

Middleborough Electric Light and Power Company. 

Mill Owners' Mutual Fire Insurance Company. 

Mutual Union Co-Operative Association of New Bedford. 

National Card and Paper Company. 

Norway Steel and Iron Company. 

Onsiet Street Railroad Company. 

Otter River Company. 

Scandia Shoe Company. 

Sovereign Co-Operative Association of Worcester. 

South Bay Teaming Company. 

Springfield Wood Working Company. 

Stone Carpet and Knitting Company. 

The Glassine Company. 

Union Newspaper Company of Springfield. 



1893.] PUBLIC DOCUMENT — No. 12. 61 

Woburn Agricultural and Mechanic Association. 

Woolson Machine Company. 

Wright Manufacturing and Perfumery Company. 

The following corporations were reported by the Tax Commissioner 
as delinquent in making their tax returns under Public Statutes, 
chapter 13, section 38, and upon notification from this department 
complied with the law : — 
A. Storrs & Bement Company. 
Acworth Manufacturing Company. 
Adamanta Manufacturing Company. 

iEtna Rubber Mills. * 

Alpha Co-operative Manufacturing Company. 
American Shoe Company. 
Amesbury Forging Company. 
Baruaby Manufacturing Company. 
Beacon Cycle Manufacturing Company. 
Beaver Knitting Company. 
Border City Hotel Company. 
Boston Clock Company. 
Boston Last Manufacturing Company. 
Boston Steamboat and Pier Company. 
Bradford Water Company. 
Brookfield Brick Company. 
Brophy Bros. Shoe Company. 
C. A. Nichols Company. 
Cape Ann Granite Company 
Cassino Art Company. 
Clinton Market Company. 
Clinton Printing Company. 
Columbian Rubber Company. 
Commercial Pottery Company. 
Commonwealth Jewelry Company. 
Criterion Knitting Company. 
East Cambridge Land Company. 
Essex Electric Street Railroad Company. 
Essex Leather Company. 
Fairfield Paper Company. 



62 ATTORNEY-GENERAL'S REPORT. [Jan. 

Fall River Spool and Bobbin Company. 

Foundry Supply Company. 

Glencove Granite Company. 

Globe Worsted Mills. 

H. A. Williams Manufacturing Company. 

Hancock Inspirator Company. 

Hanover Water Company. 

Haverhill Ice Company. 

Haverhill Paper Company. 

Haverhill Roller Toboggan Company. 

HoUiston Gas and Electric Company. 

Hopkinton Electric Company, 

Hull Street Railroad Company. 

I. A. Beal Company. 

J. Barker & Bros. Manufacturing Company. 

John Davrog Company. 

Keating Wheel Company. 

Kensett Lath Company. 

L. L. Brown Paper Manufacturing Company. 

Liberty Masonic Association. 

Lincoln Hall Association. 

Loring & Blake Organ Company. 

Lowell, Lawrence & Haverhill Street Railroad Company. 

Lugrin Door Company. 

Massasoit Manufacturing Company. 

Meadow Company. 

Merchants' Woollen Company. 

Merrimac Electric Company. 

Milton Light and Power Company. 

Monson Gas and Electric Company. 

Murray Bros. Company. 

Naumkeag Street Railroad Company. 

Needham Electric Company. 

New England Steam Cooperage Company. 

New England Wire Goods Company. 

New^s Publishing Company. 

Northfield Hotel Company. 



1893.] PUBLIC DOCUMENT — No. 12. 63 

Odd Fellows Hall Association. 

Old Spain Co-operative Society. 

People's Street Railroad Company. 

Pomeroy Mining Company. 

Providence & Springfield Railroad Company. 

Quaboag Steamboat Company. 

Quincy Market Cold Storage Company. 

Quinsigamond Electric Light and Power Company. 

Rodney Hunt Machine Company. 

Roxbury Central Wharf. 

Salem Press Publishing and Printing Company. 

South Weymouth Shoe Company. 

Speirs Manufacturing Company. 

Suffolk Iron Works. 

Suffolk Trust Company. 

Sutton Cranberry Company, 

Swansea Dye Works. 

Syms & Dudley Paper Company. 

T. A. Newhall Coal Company. 

Thomas B. Adams Company. 

Traveller Publishing Company. 

Turner's Falls Lumber Company. 

U. S. Druggists Supply Company. 

Victor Manufacturing Company. 

Villa Paint and Ornamental Company. 

Wakefield Water Company. 

Walpole Woollen Mills. 

Warren Electric Company. 

Wellesley Electric Company. 

West Chop Steamboat Company. 

AVheeler Cotton Mills. 

Whitmore Manufacturing Company. 

Winkley & Maddox Ice Company. 

Winthrop Loan and Trust Company. 

Woburn Electric Light Company. 

Woodward & Brown Piano Company. 

Worcester & Shrewsbury Railroad Company. 

Worcester Elevator Company. 



64 



ATTORNEY-GENERAL'S REPORT. 



[Jan. 



The Treasurer of the Commonwealth has transmitted to this 
department for collection claims for corporation taxes for the 
year 1892 from the following companies : — 



A. L. Tribble Company, 

A. M. Gardner Hardware Company, 

Acwortli Manufacturing Company, . 

American Confectionery Company, . 

Attleborough, No. A. & W. St. R.R. Company 

Beacon Cycle Manufacturing Company, . 

Black Rocks & Salisbury Beach St. R. R. Company 

Blair Camera Company, .... 

Boston Advertising Company, 

Brookfield Brick Company, 

Bunker Hill Furniture Company, 

Burt Chace Company, .... 

C. W. Mutell Manufacturing Company, . 

Chelsea Express Despatch Company, 

Chelsea Wire Fabric Rubber Company, . 

Child Acme Cutter and Press Company, . 

Child & Kent Express Company, 

Choate Drug and Chemical Company, 

Commonwealth Jewelry Company, . 

Commonwealth Publishing Company, 

Davis Company, The, .... 

Edwards Grain Company, 

Engraving and Printing Company, Corporation 

Essex Electric St. R.R. Company, . 

Essex Leather Company, . 

Evening Gazette Company, 

Framingham Union St. R.R. Company, . 

Frank E. Sargent Company, . 

Franklin Educational Company, 

Goddard Machine Company, The, . 

H. A. Williams Manufacturing Company, 

Harvard Printing Company, . 

Haverhill Aqueduct Company, 

Hull Electric Light and Power Company, 

Hull St. R.R. Company, 



Amount of Tax. 

$520 80 

818 40 

741 77 

37 20 

1,182 96 

2,648 64 

1,136 83 

3,434 30 

59 52 

113 09 

223 20 

14 88 

223 20 

148 80 

586 27 

446 40 

334 80 

372 00 

119 04 

189 72 

169 45 

22 32 
74 40 

379 44 
90 77 
2,008 80 
654 72 
595 20 
558 00 

23 81 
763 64 

22 32 

4,910 40 

74 40 

179 45 



181^3.] 



PUBLIC DOCUMENT — No. 12. 



85 



Hydraulic Manufactiuiug Company, 

J. G. Cupples Company, .... 

Janesville Manufacturing Company, 

Lamprey Boiler Furnace Mouth Protector Company 

Leach & Grant Company, .... 

Little Giant Hussar Wrecking Company, 

Loring & Blake Organ Company, 

Lynn Ice Company, ..... 

Ljnm Press Publishing Company, . 

Magneso Calcite Fire Proof Company, 

Manet St. R.R. Company, . . . 

National Mortgage and Debenture Company, . 

Naumkeag St. R.R. Company, 

Neograph Publishing Company, 

New England Building and Manufacturing Company 

New York & Boston Inland R.R. Company 

Newburyport Herald Company, 

Norton Iron Company, . 

Old Spain Co-operative Society, 

Owen Paper Company, . 

Parmenter Manufacturing Company, 

Pike Manufacturing Company, 

Quaboag Steamboat Company, 

Security Associates, 

Standard Furniture Company, 

Suspension Transportation Company, 

Thorp & Adams Manufacturing Company, 

Traveller Publishing Company, 

U. S. Druggists' Supply Company, . 

Villa Paint and Ornamental Company, 

W. M. Colby Company, 

Wakefield Water Company, 

Waltham Watch Tool Company, 

Watchman Publishing Company, 

West Chop Steamboat Company, 

West End Supply Company, . 

Wheelman Company, 

Winkley & Maddox Ice Company, . 



mount of Tax. 


$13 


39 


74 


40 


736 


56 


186 


00 


474 


97 


148 


80 


635 38 


470 


21 


223 


20 


161 


15 


487 


30 


192 


62 


4,074 


89 


74 


40 


148 


80 


71 


72 


63 


98 


186 


00 


22 


32 


1,630 


10 


1,041 


60 


1,116 


00 


68 


30 


74 


40 


744 


00 


372 


00 


178 


56 


267 


84 


148 


80 


31 


25 


148 


80 


746 


98 


193 


44 


446 


40 


59 


52 


52 


08 


111 


60 


223 


20 



66 



ATTORNEY-GENERAL'S REPORT. 



[Jan. 



MISCELLANEOUS EETURNS. 



Haverhill Hat Company. Certificate of condition required by Pub. 
Sts., c. 106, §54. Filed. 

Somerville Electric Light Company. Same as above. Filed. 

Foundry Supply Company. Same as above. Filed. 

Morley Paper Company. Same as above. Pending. 

Old Spain Co-operative Society. Same as above. Filed. 

Boston Blower Company. Same as above. Filed. 



COLLECTIONS. 



The following table shows the collections made by this department 
during the year ending Jan. 17, 1893 : — 



Debtor. 



Corporation 
Tax for 1891, 



Total. 



Abbott Slipper Company, 

Acworth Manufacturing Company, 

Allen & Bowell Company, . 

Bartlett Automatic Elevator Company, 

Bay State Watch Case Company, 

Black Rocks & Salisbury Beach Street ] 

pany. 
Blair Camera Company, 



Railroad Com 



Boston Advertising Company, 
BoBton Wall Paper Company, 
Brookfield Brick Company, . 
C. W. Mutell Manufacturing Company, 
Cedar Street Co-operative Association, 
Central Tow Boat Company, 



$108 75 
723 55 
2-46 50 
72 50 
841 00 
1,549 33 
2,958 00 
58 00 
290 00 
no 20 
217 50 
44 23 
203 00 



$9 02 
31 35 
9 86 
2 90 
16 82 
46 48 
118 32 
2 32 
11 60 
4 30 
9 50 



$117 77 

754 90 

256 36 

75 40 

857 82 

1,595 81 

3,076 32 

60 32 

301 60 

114 50 

227 00 

44 23 

207 67 



1893. j 



PUBLIC DOCUMENT — No. 12. 



67 



Debtor. 


Corporation 
Tax for 1891. 


Interest. 


Total. 


Chelsea Express Despatch Company 


$145 00 


$12 46 


$157 46 


Chelsea Wire Fabric Rubber Company, 


643 80 


25 75 


669 59 


Chestnut Hill Real Estate Association, 


253 75 


5 84 


259 59 


Citizens' Gas Light Company of Reading, etc., . 


111 80 


2 59 


114 39 


Coburn Shuttle Company, 


290 00 


12 18 


302 18 


Damon Narrow Fabric Company, .... 


87 00 


- 


87 00 


D. C. Storr Furniture Company, 


36 25 


70 


36 95 


Fall River Daily Herald Publishing Company, . 


43 50 


1 31 


44 81 


Framingham Union Street Railroad Company, . 


507 50 


15 23 


522 73 


George E. Read Furniture Company 


145 00 


5 80 


150 80 


H. A. Williams Manufacturing Company, . 


684 40 


27 81 


712 21 


Hull Street Railroad Company 


29 00 


1 02 


30 02 


Hydraulic Manufacturing Company 


30 45 


1 20 


31 65 


L. A. May Company 


507 50 


58 85 


566 35 


Lynn Ice Company 


643 08 


19 29 


662 37 


Lynn Press Publishing Company, .... 


217 50 


6 52 


224 02 


Massachusetts Dredging Company 


145 00 


12 33 


157 33 


Morse Manufacturing Company 


217 50 


21 51 


239 01 


National Fire Works Company 


136 30 


6 45 


142 75 


National Mortgage and Debenture Company, 


145 33 


12 35 


157 68 


National Plaster Company 


108 75 


4 02 


112 77 


New England Wire Goods Company, .... 


72 50 


- 


72 50 


New York & Boston Inland Railroad Company, 


69 89 


3 84 


73 73 


Old Spain Co-operative Society 


21 75 


65 


22 40 


Owen Paper Company 


1,762 48 


70 50 


1,832 98 


People's Line, The 


72 50 


2 18 


74 68 


Quaboag Steamboat Company 


66 56 


2 66 


69 22 


Queen Hotel Company 


54 38 


2 17 


56 55 


Raymond Skate Company, 


413 25 


20 36 


433 61 


Salem Press Publishing and Printing Company, 


34 44 


2 76 


37 20 


Security Associates 


290 00 


- 


290 00 


Southbridge Co-operative Grocery Company, . 


22 48 


86 


23 34 


Union Electric Light Company 


34 80 


66 


35 46 


Union Publishing Company 


24 65 


99 


25 64 


Waltham Watch Tool Company of Springfield, 


253 75 


10 14 


263 89 


Whitman Electric Company, 


87 00 


1 65 


88 65 


Winship Daniels Company 


42 05 


1 82 


43 87 


Woburn Electric Light Company, .... 


250 13 


10 00 


260 13 




$16,775 21 









68 



ATTOKNEY-GENERAL'S REPORT. 



[Jan. 



MISCELLANEOUS C0LLECTI0:N^S. 



Eureka Silk Manufacturing Company. Tax for 1890,* 
Gardner Gas Light Com25any. Tax for 1890,* . 
Rex Liquid Stove Polish Company. Tax for 1890, 
Security Associates. Tax for 1890. On account, 



Gardner Gas Light Company. Gas Commissioner's tax, . 
Athol Gas and Electric Company. Gas Light Company's tax 
Gardner Gas Light Company. Gas Light Company's tax. 
Commercial Insurance Company of California. Penalty for 

violation of St. 1887, c. 214, §20, 

Foundry Supply Company. Fee under P. S., c. 106, §84, . 
Chemical Hand Fire Extinguisher Company. Fee under P. S 

c. 106, §84, 



$1,500 00 


68 10 


22 26 


164 58 


$1,754 94 


17 12 


4 37 


2 91 


600 00 


5 00 



5 00 



$524 40 



H. & J. A. Wellington. Tide disjjlacement in Boston Harlwr, . 
Joel F. Sheppard. Tide displacement in Boston Harbor, . 
Boston Electric Light Company. Tide displacement in Boston 

Harbor, 

George L. Damon. Tide displacement in Boston Harbor, . 



Dedham Electric Company. Gas Commissioners' tax, 

Worcester & Shrewsbuiy Railroad Company. Railroad Com- 
missioners' tax, 

Hoosac Valley Street Railroad Company. Railroad Commis- 
sioners' tax, .......... 

Hull Street Railroad Company. Railroad Commissioners' tax, . 

Lynn Belt Line Street Railroad Company, 



$250 


00 


151 


75 


819 


75 


195 


00 


1,416 


50 


$17 


23 



22 11 

14 70 

2 76 

31 54 

$88 34 



■ Balance of tax abated by Board of Appeal. 



1893.] PUBLIC DOCUMENT — No. 12. 69 

Penalties for failure to file annual return before the second 
Wednesday in September, under St. 1892, c. 263 : — 

Lowell Electric Light Corporation $5 00 

Haverhill Gas Light Company, 5 00 

Great Barrington Electric Street Company, .... 5 00 

Chicopee Gas Works, 5 00 

Greenfield Electric Light and Power Company, .... 5 00 

Waltham Gas Light Company, 6 00 

Walworth Light & Power Company, 10 00 

Pittsfield Coal Gas Company, . 10 00 

Quincy Electric Light and Power Company, .... 25 00 

Edison Electric Illuminating Company, 75 00 

$150 00 
Costs collected in civil cases, $944 79 

Total, $21,654 18 



PUBLIC CHARITABLE TRUSTS, 

And Cases arising under the Legacy Tax Act. 



Trustees of Donations of Protestant Episcopal Church. Petition for 
leave to sell real estate at 26 Chestnut Street, Boston. April 21, 
1892. Notice acknowledged, and waiver of right to be heard. 

Edward Clark et al., executors estate Mary Ann Morse v. Charles 
Underwood et als. Middlesex. S. J. C. Petition for leave to 
compromise under will of Mary Ann Morse. May 10, 1892. 
Attorney-General waives hearing. 

Drown, Richard W., estate of. A. W. Greenleaf, executor. Essex. 
Probate Court. Petition for leave to sell real estate. May 10, 
1892. Attorney-General waives hearing. 

Ward, Lyman, estate of. Samuel Little, trustee, petitioner. Nor- 
folk. Probate Court. Petition for disposition of trust fund for 
benefit of school district in Athol, the latter having been 
abolished. June 8, 1892. Attorney-General waives hearing. 



70 ATTORNEY-GENERAL'S REPORT. [Jan. 

Sears, Jacob, estate of. Henry H. Sears et als., admiuistrators, de 
bonis non with the will annexed, v. Sally E. Chapman et als. 
Barnstable. S. J. C. Nov. 3, 1892. Hearing before Lathrop, 
J., and case reserved. Pending before full court. 

O'Driscoll, Mary, estate of. Frank Morrison et al., petitioners. 
Public Charity. Lapsed legacy. AVorcester. Probate Court. 
June 20, 1892. Appearance of Attorney-General entered. 

Belcher, Geo. C, v. Lemira Ann Drake et al. Petition in equity to 
establish a compromise. Bristol. S. J. C. July 1, 1892. 
Attorney-General answered and consented to compromise. 

Holmes, Mary A., estate of. Wm. B. Durant, administrator, with 
the will annexed, v. Edwin M. Smith et als. Bill for instruc- 
tions. Suffolk. S. J. C. Oct. 4, 1892. Attorney-General 
waives hearing. 

American College and Education Society v. John A. Hamilton et al., 
administrators. Public Charitable Trust. Suffolk. S. J. C. 
Pending. 

Pearson, Henry B., estate of. Alonzo A. Miner, trustee, petitioner. 
Public Charitable Trust. Suffolk. S. J. C. Pending. 

Rotch, William J., et al., trustees. Petition for leave to convey real 
estate. Bristol. Probate Court. Dec. 21, 1892. Answer filed 
and further hearing waived. 



Cases Arising Under the Legacy Tax Act. 

[St. 1891, c. 425.] 

Swasey, B. Connor, estate of, Henry Wardwell, executor, v. George 
A. Marden, treasurer. Essex. Probate Court. Nov. 2, 1892. 
Answer filed and hearing waived. 

Robertson, J. W., estate of, Clarke et als., petitioners. Norfolk. 
Probate Court. Nov. 2, 1892. Answer filed. Further hearing 
waived. 

Clark, James W., estate of, Edmund S. Clark et als., executors. 
Citation to ascertain liability of estate to taxation. Middlesex. 
Probate Court. Dec. 10, 1892. Answer filed and further hear- 
ing waived. 

Milton, Amelia, estate, Thomas P. Proctor, administrator, with will 
annexed. Suffolk. Probate Court. Aug. 18, 1892. Answer 
filed and further hearing waived. 



1893.] 



PUBLIC DOCUMENT — No. 12. 



71 



The following companies having failed to file their annual return 
with the Board of Gas and Electric Light Commissioners on or before 
the second Wednesday of September, as provided by St. 1892, c. 
263, have become liable to a forfeiture, as provided in said statute. 
The cases were referred to this department Dec. 26, 1892, and are 
still pending : — 

Millbury Electric Company, 

North Shore Electric Company, . 

Leominster Electric Light and Power Company, 

Palmer Electric Company, .... 

Union Electric Light Company, . 

Otis Company of Ware, .... 

Edison Electric Illuminating Company of Fall River, 

Plymouth Electric Light Company, 

Whitman Electric Company, 

Chicopee Electric Company, 

Milford Electric and Power Company, 

United Electric Light Company, 

Hyde Park Electric Light Company, . 

Dedham Electric Company, 

Woburn Electric Light Company, 

Westborough Electric and Power Company, 

Maiden Electric Company, 

Weymouth Light and Power Company, 

Ipswich Gas Light Company, 

Newton and Watertown Gas Light Company, 

Gloucester Electric Company, . 

Norwood Gas Light Company, . 

Arlington Gas Light Company, . 

Fitchburg Gas Company, .... 

Gardner Gas Light Company, . 

Haverhill Electric Company, 

Athol Gas and Electric Company, 

Gardner Gas Light Company, Mrs. Ruggles, 

Marlborough Gas Light Company, 

Nantucket Electric Company, 

Milton Light and Power Company, 

Leicester Electric Company, 

Electric and Power Company of Abington and Rockland, 





$5 00 




5 00 




5 00 




5 00 




5 00 




5 00 


liver. 


10 00 




10 00 




10 00 




10 00 




15 00 




25 00 




. 25 00 




25 00 




25 00 




25 00 




30 00 




30 00 




30 00 




30 00 




40 00 




60 00 




60 00 




65 00 




75 00 




125 00 




125 00 




145 00 




195 00 




235 00 




. 385 00 




. 700 00 


Rockland, 


. 970 00 



72 ATTORNEY-GENERAL'S REPORT. [Jan. 



miscella:n^eous cases. 



Joseph N. Friedman et al. v. Charles Harrington. Circuit Court of ^ 

the United States. District of Massachusetts. In equity. Bill j 

to restrain the respondent as milk inspector of the city of Bos- j 

ton from enforcing the provisions of St. 1891, c. 58, against the 
complainants. Pending. 

Orray A. Taft, petitioner, v. Commonwealth. Petition for assessment 
of damages for the taking of land under St. 1889, c. 439, by 
the Metropolitan Sewerage Commissioners. Pending before the 
full court. 

Eben D. Jordan, petitioner, v. Commonwealth. Same as above. 
Referred to the district attorney for the Suffolk district. 

Boston and Albany Railroad Company, petitioner, v. Common- 
wealth. Same as above. 

Chelsea Dye House and Laundry Company, petitioner, v. Common- 
wealth. Suffolk. Petition for assessment of damages for diver- 
sion of water supply by land taken by Metropolitan Sewerage ; 
Commissioners. Referred to the district attorney for the Suffolk 
district. 

Miller's River Gas Light Company. Gas Commissioners' tax, $12. 6G. i 

Abated. | 

Colorado Farm Loan Compan3^ Tax for salary and expenses of 

Commissioner of Foreign Mortgage Corporations, $6.49. Uncol- ' 

lectible. 

Continental Land and Security Company, $97.76. Same as above. | 

Kansas City Investment Company, $121.80. Same as above. ' 

New England Investment Company, $126.91. Same as above. 

Sioux City Valley Land Company, $161.05. Same as above. | 

Western Farm Mortgage Trust Company, $126.71, Same as above. 

Citizens' Insurance Company of Cincinnati, $123.54. Pending. 

Albin M. Richards. Tide displacement in Boston harbor, $475.10. 
Pending. 



1893.] PUBLIC DOCUMENT — No. 12. 73 

The following matters, reported as pending in the last annual 
report of this department, have been disposed of as follows, except 
as otherwise noted : — 

1. Informations at the relation of the Treasurer of the Common- 
wealth for the non-payment of corporation taxes for 1890 against 
the — 

Brockton Gazette Company. Pending. 

Gardner Gas Light Company. Enjoined. Tax afterward paid. 

Massachusetts and Southern Construction Company. Enjoined. 

Newburyport Herald. Tax paid. Information dismissed. 

Security Associates. Enjoined. Tax afterward paid. 

Wentworth Carpet Lining Company. Pending. Company out of 
business. 

Eureka Silk Manufacturing Company. Tax paid in part. Abated 
as to balance. 

2. For failure to comply with Pub. Sts., c. 13, §38, relating to 
tax returns against the — 

Boston Car Spring Company. Enjoined. 

Consolidated Folding Bed Company. Return filed. Information 

dismissed. 

Co-operative Workingmen's Corporation. Enjoined. Company dis- 
solved by St. 1892, c. 75. 

Duralite Manufacturing Company. Enjoined. Company dissolved 
by St. 1892, c. 75. 

Freeman Manufacturing Company. Pending. 

International Cigar Makers' Co-operative Association. Enjoined. 

Longley Machine Company. Enjoined. Dissolved by St. 1892, c. 75. 

Martha's Vineyard Street Railway Company. Information dismissed. 

Morley Paper Company. Enjoined. 

News Publishing Company. Enjoined. Return afterward filed. 

Rex Liquid Stove Polish Company. Enjoined. 

Standard Electric Supply Company. Information dismissed. 

Stoneham and Wakefield Electric Power Company. 

Swan Holt Company. Enjoined. Return afterward filed. 

Wentworth Carpet Lining Company. Information dismissed. 

Weymouth Light and Power Company. Return filed. Information 
dismissed. 



74 ATTORNEY-GENERAL'S REPORT. [Jan. 

3. Informations at the relation of the Commissioner of Corpora- 
tions for failure to comply with Pub. Sts., c. 106, §54, relating to re- 
turns of condition against the — 

Agawam Manufacturing Company. Return filed. Information dis- 
missed. 

Atherton Machine Company. Return filed. Information dismissed. 

Baltimore and Ohio Telegraph Company. Return filed. Informa- 
tion dismissed. 

Boston Car Spring Company. Company insolvent, and return 
accordingly. 

Burleigh Rock Drill Company. Return filed. Information dis- 
missed. 

Bay State Gold Mining Company. Return filed. Information dis- 
missed. 

Baker's Pond and Drain Fishing Company. Return filed. Informa- 
tion dismissed. 

Charles River Electric Light and Power Company. Enjoined. 

Duralite Manufacturing Company. Enjoined. Company dissolved 
by St. 1892, c. 75. 

Day Cordage Company. Statement filed. Information dismissed. 

Evening Mail Company. Return filed. Information dismissed. 

Elwell Heddle Company. Return filed. Information dismissed. 

Foxborough Manufacturing Company. Return filed. Information 
dismissed. 

Freeman Manufacturing Company. Pending. 

Fall River Daily Herald Publishing Company. Enjoined. 

Falmouth Local Publishing and Printing Company. Return filed. 
Information dismissed. 

Lancaster Water Company. Return filed. Information dismissed. 

Longley Machine Company. Enjoined. Company dissolved by St. 
1892, c 75. 

Messenger Manufacturing Company. Return excused by Commis- 
sioner. Information dismissed. 

Miller's River Gas Light Company. Company dissolved by St. 1892, 
c. 75. Information dismissed. 

Old Spain Co-operative Society. Return filed. Information dis- 
missed. 

Quaboag Steamboat Company. Return filed. Information dis- 
missed. 

Springfield Pump and Manufacturing Company. Returned filed. 
Information dismissed. 



1893.] PUBLIC DOCUMENT — No. 12. 75 

Silica Mining Company. Statement filed. Information dismissed. 

Thomas B. Adams Company. Return filed. Information dismissed. 

Westfield Brick Company. Return filed. Information dismissed. 

Worcester Fire Pail Company. Return filed. Information dis- 
missed. 



4. For non-payment of the fee required by Pub. Sts., c. 106, §84, 
against the — 

Cosmopathic Medical Institute and Sanitarium Association. En- 
joined. 

5. Application for the writ of habeas corpus : — 

Plumley, Benjamin A., petitioner. Sale of oleomargarine. Suffolk. 
Hearing Oct. 29, 1891. Reported to full court Nov. 25, 1891. 
Prisoner remanded May 7, 1892. 

6. Writs of error: — 

Brown, John F., in error, v. The Commonwealth. See Com. v. 
Brown, 334. Carried to the Supreme Court of the United 
States. Writ dismissed for want of jurisdiction, April 18, 
1892. See Brown v. Massachusetts, 144 Mass. 573. 

Monahan, Lucy, v. Commonwealth, Suffolk. To the municipal 
court for the Charlestown district, Boston. Imprisonment for 
drunkenness. Hearing Jan. 29, 1892. Judgment affirmed. 

Sturtevant, Frederick, v. The Commonwealth. Suffolk. To supe- 
rior court. Habitual criminal act. Discontinued Oct. 22, 1892. 



7. Public Charitable Trusts : — 

Babbidge et al., executors, v. Vittum et al. Construction of will. 
Decree. Case reported 30 North Eastern Reporter, 77. 

Dary, George R., administrator, with the will annexed, of estate of 
Abby W. Baker, petitioner, v. Annie R. Foster et als. Suffolk. 
Petition to probate court for instructions as to payment of lega- 
cies. Decree. 

Holmes et al. v. Coates. Construction of will. Answer of Attorney- 
General filed. Pending before full court. 

Niles, Thomas, et als., v. Attorney-General et als. Suffolk. Bill in 
equity for instructions as to existence of public charitable trust. 
Answer of Attorney-General filed. Pending. 

Smith, Phineas B., executor and trustee, v. Harriet F. D. Walker et 
als. Petition for instructions under will of Henry A. Walker as 
to existence of public charity. 



76 ATTORNEY-GENERAL'S REPORT. [Jan. 

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. 

Tuft's College, trustees of, v. Boston et al. Suffolk. Petition to sell 
real estate and reinvest proceeds. Answer of Attorney-General 
filed. Interlocutory decree, July 25, 1891. 

8. Cases coming under the supervision of the Attorney-General, 
but in charge of private counsel : — 

Attorney-General ex rel. 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. March 2, 1892, rescript. 
Information dismissed without costs by consent of parties. 

Attorney-General ex rel. Inhabitants of Fairhaven 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 v. Proprietors of Rowe's Wharf. Suffolk. S. J. C. 
Begun in 1882. Information for injunction. Injunction ^^eu- 
dente lite granted. Pending. 



9. Appeals, exceptions and reports in criminal cases argued but 
not then decided : — 

Commonwealth v. Crowell. Judgment on the verdict. 
Commonwealth v. John Callahan, Jr. Waived. 
Commonwealth v. James W. Doherty. Waived. 
Commonwealth v. Henry M. Leach. Exceptions sustained. 
Commonwealth v. Michael McCauley. Exceptions overruled. 
Commonwealth v. James Munn. Exceptions overruled. 
Commonwealth v. Parks & Riley. Exceptions overruled. 
Commonwealth v. Henry Abrahams. Exceptions overruled. 
Commonwealth v. Leonard R. Cutter, Exceptions overruled. 
Commonwealth v. Russell Huntley. Judgment affirmed. 
Commonwealth v. Joseph F. Ryan. Exceptions overruled. 



1893.] PUBLIC DOCUMENT — No. 12. 77 

10. Miscellaneous cases : — 

Adams, James K., v. Commonwealth (Cattle Commissioners) . Peti- 
tion for compensation for care, killing and burial of certain 
swine infected with disease. Superior Court, Suffolk County. 
Pending. 

Attorney-General ex rel. Treasurer v. Boston Heating Company. 
Information for non-payment of corporation tax for 1889. 
Enjoined. 

Attorney-General ex rel. Commissioner of Corporations v. Boston 
Macaroni Manufacturing Company. Non-payment of fee re- 
quired by Public Statutes, chapter 106, section 84. Pending. 

Attorney-General v. Lovejoy Store Service Company. Middlesex. 
Quo loarranto. 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 Con- 
struction Company. Information for non-payment of corpora- 
tion tax for 1889. Pending. 

Attorney-General ex rel. Treasurer v. Security Associates. Infor- 
mation for non-payment of corporation tax for 1889. Paid 
■ Feb. 2, 1892. 

Attorney-General ex rel. Board of Gas and Electric Light Commis- 
sioners V. Walworth Light and Power Company. Violation of 
St. 1887, chapter 382, section 3. Enjoined. Case reported 31 
North Eastern Reporter, 482. 

Boston & Albany Railroad Company, petitioner. Suffolk. S. J. C. 
Petition for recovery of taxes alleged to be illegally paid. 
Demurrer. Overruled. Appealed to full court. Judgment 
affirmed. Case reported in 31 North Eastern Reporter, 696. 

Commonwealth ex rel. Savings Bank Commissioners v. Stockbridge 
Savings Bank. Petition for injunction and appointment of a 
receiver. Injunction issued and F. A. Hobbs appointed re- 
ceiver. 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 Banks v. 
Suffolk Trust Company. Petition for injunction and receiver. 
Granted. J. Haskell Butler, Esq., appointed receiver. Pend- 
ing. 

Commonwealth v. Inhabitants of Williamstown. Action to recover 
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 excep- 
tions and report. Judgment for the Commonwealth on the 
finding. Case reported in the 30 North I^astern Reporter, 472. 



78 ATTORNEY-GENERAL'S REPORT. [Jan. 

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. Petition dismissed. Case reported in the 30 North 
Eastern Reporter, ooo. 

Merchants' Electric Light Company, petitioner, v. Board of Gas and 
Electric Light Commissioners. Petition for mandamus. Pend- 
ing. 

Moore, Mary J., et als., petitioners, v. Commonwealth. Suffolk 
Supreme Judicial Court. Begun in 1885. Damages for flats 
taken by the Harbor and Land Commissioners. Settled by 
agreement of parties. 

Russell, Edward 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. 

Tan turn, .James D., et aZs., -y. Progressive Benefit Order, Treasurer 
of Commonwealth et als. Circuit Court of the United States. 
Discontinued. 

Titcomb, George H., v. Cape Cod Sliip 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. 



11. Petitions under St. 1890, c. 428, for the abolition of grade 
crossings reported as pending Jan. 20, 1892, and the disposition 
thereof : — 

BerksJiire County. 

Richmond, Town of, petitioner. Crossings over Boston & Albany 
Railroad. Commissioners appointed. Hearing. Pending. 

Richmond, Town of, and West Stockbridge, Town of, joint peti- 
tioners. Crossings over Boston & Albany Railroad. Pending. 

Williarastown, Town of, petitioner. Crossings over Fitchburg 
Railroad. Commissioners appointed. Hearings. 

Franklin County. 

Greenfield, Selectmen of, jietitioners. Crossing of Clay Hill Street 
over Fitchburg and Connecticut River Railroads. Hearings 
June 19 and July 8. Decree. 

Hampden County. 

Chicopee, Town of, petitioner. Crossings over Connecticut River 
Railroad. Commissioners appointed. Hearing. 



1893.] PUBLIC DOCUMENT — No. 12. 79 

Monson, Boston & Albany Railroad, petitioner. Hastings', But- 
ler's, Moran's and Silver Street crossings. Hearing July 25. 
Decree as to first and the last two crossings. Disagreement as 
to second. Recommitted. 

Palmer, Town of, Boston & Albany Railroad, petitioner. Crossings 
over Boston & Albany Railroad. Commissioners appointed. 
Hearing. Decree. 

Springfield, Mayor and Aldermen of, petitioners. Armory Street. 
Report of Commissioners filed. Decree. 

West Springfield. Selectmen of, petitioners. Baldwin and Cold 
Spring streets. Hearings. Report of Commissioners filed. 

Harnjyshire County. 

Belchertown, Town of, petitioner. Crossings over Central Massa- 
chusetts & New London Northern Railroad. Commissioners 
appointed. 

Northampton, Mayor and Aldermen of, petitioners. King, North, 
Main, Holyoke, Pleasant (2 crossings) and South streets. 
Hearings July 27, September 29, October 1, 2 and 24. Report 
of Commissioners filed. Decree confirming Commissioners' 
report as to King, Edwards, Main and Upper and Lower Pleas- 
ant streets, but rejecting it as to Holyoke Street. Pending 
before full court on report. 

Middlesex County. 

Lincoln, Fitchburg Railroad, petitioner. Pending. 

Lowell, City of, petitioner. Crossings over Boston & Lowell Rail- 
road and Nashua & Lowell Railroad. Petition discontinued. 

Marlborough, Old Colony Railroad, petitioner. Fisher's crossing. 
Pending. 

Norfolk County. 

Brookline, Boston & Albany Railroad, petitioner. St. Mary's Street. 
Commissioners appointed. Hearing. 

Norwood, Selectmen of, and New York & New England Railroad, 
petitioners. Washington, Chapel and Guild streets and Rail- 
road Avenue. Hearings. Pending. 

Plymouth County. 

Brockton, Mayor and Aldermen of, petitioners. Commissioners 
appointed. 

East Bridgewater, Directors of Old Colony Railroad Company, 
petitioners. Commissioners appointed. Hearings. 

Wai'eham, Directors of Old Colony Railroad Company, petitioners. 
Commissioners appointed. Hearing. Decree. 



80 ATTORNEY-GENERAL'S REPORT. [Jan. '93. 



Suffolk County. 

Boston, Directors of Old Colony Railroad Company, petitioners. 
Tremont Street. Hearing. Pending. 

Boston, Directors of Old Colony Railroad Company, petitioners. 
Washington Street. Pending. 

Boston, Mayor and Aldermen of, petitioner. Crossing of Dudley 
Street, over New York & New England Railroad Company, 
Pending. 

Worcester County. 

Athol, Selectmen of, petitioners. Commissioners appointed. Hear- 
ings. 

Auburn, Directors of Boston & Albany Railroad Company, peti- 
tioners. Pending. 

Boylston, Selectmen of, petitioners. Commissioners appointed. 
Hearing. 

Charlton, Dii'eetors of Boston & Albany Railroad Company, peti- 
tioners. Decree. 

Clinton, Selectmen of, petitioners. Pending. 

Templeton, Selectmen of, petitioners. Pending. 

Westborough, Old Colony Railroad Company, petitioner. Pending. 

Worcester, Boston & Albany Railroad, petitioner. Ludlow, Heard 
and Webster streets and Sutton Lane. Decree. 

Worcester, Mayor and Aldermen of, petitioners. Grafton, Green, 
Wasliington and Plymouth streets. Pending. 

AVorcester, Mayor and Aldermen of, petitioners. Millbrook, Gar- 
den, Lincoln, Market, School, Thomas, Central, Exchange, 
Summer and Shrewsbury streets. Pending. 



RULES OF PRACTICE m REQUISITION 

CASES. 



Every application to the Governor for a requisition upon the execu- 
tive authority of any other State or Territory, 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 ])e in dupli- 
cate original papers, or certified copies thereof. 

The following must appear by the certificate of the district or prose- 
cuting attorney : — 

(a) The full name of the person for whom extradition is asked, 
together with the name of the agent proposed, to be properly spelled. 

(6) That, in his opinion, the ends of public justice require that 
the alleged criminal be brought to this State for trial, at the public 
expense. 

(c) That he believes he has sufficient evidence to secure the con- 
viction of the fugitive. 

(d) That the person named as agent is a proper person, and that 
he has no private interest in the arrest of the fugitive. 

(e) If there has been any former application for a requisition for 
the same person, growing out of the same transaction, it must be so 
stated, with an explanation of the reasons for a second request, 
together with the date of such application, as near as may be. 

(/) If the fugitive is known to be under either civil or criminal 
arrest in the State or Territory to which he is alleged to have fled, the 
fact of such arrest and the nature of the proceedings on which it is 
based must be stated. 

ig) That the application is not made for the purpose of enforcing 
the collection of a debt, or for any private purpose whatever ; and 
that, if the requisition applied for be granted, the criminal proceed- 
ings shall not be used for any of said objects. 

(h) The nature of the crime charged, with a reference, when prac- 
ticable, to the particular statute defining and punishing the same. 

(t) If the offence charged is not of recent occurrence, a satisfac- 
tory reason must be given for the delay in making the application. 



82 ATTORNEY-GENERAL'S REPORT. [Jan. 

1. In all cases of fraud, false pretences, embezzlement or forgery, 
Avhen made a crime by the common law, or any penal code or statute, 
the affidavit of the principal complaining 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 prosecu- 
tion for the purpose of collecting a debt, or for any private purpose, 
and will not directly or indirectly use the same for any of said pur- 
poses, shall be required, or a sufficient reason given for the absence 
of such affidavit. 

2. Proof by affidavit of facts and circumstances satisfying 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 requi- 
sition 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 requi- 
sition, such complaint to be accompanied by affidavits to the facts 
constituting the offence charged by persons having actual knowledge 
thereof, and that a warrant has been issued, and duplicate certified 
copies of the same, together with the returns thereto, if any, must be 
furnished upon an application. 

5. The official character of the officer taking the affidavits or depo- 
sitions, and of the officer who issued the waiiant must be duly cer- 
tified. 

6. Upon the renewal of an application, — for example, on the 
ground that the fugitive has fled 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 fur- 
nished. 



1893.] PUBLIC DOCUMENT — No. 12. 83 

7. In the case of any person who has been convicted of any crime, 
and escapes after conviction, or while serving his sentence, the appli- 
cation may be made by the jailer, sheriff or other ofiacer having him 
in custody, and shall be accompanied by certified copies of the indict- 
ment 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. 



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