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

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



Commontaitjj of glassacljusetts. 



ANNUAL REPOllT 






ATTORNEY- GENERAL 



Year Ending January 17, 189L 



BOSTON : 

WRIGHT & POTTER PRINTING CO., STATE PRINTERS, 

18 Post Office Square. 

1894. 



dUwm0ntox;ilt{j of IHassHtljitsrffs. 



Attorxey-General's Department, 
Commonwealth Building, Bosto.v, Jan. 17, 1894. 



To the Honorable the President of the Senate. 

I transmit herewith the annual report of this department for 
the year ending this day. 

Very respectfully, your obedient servant, 

ALBERT E. PILLSBURY, 

Attorney- General. 



C0inm0ixtoxaltlj ai llfassatjjustfis. 



Attorney-General's Department, 
Commonwealth Building, Boston, Jan. 17, 1894. 

To the Honorable Senate and House of Rejyresentalives. 

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

Cases requiring the attention of the department during the 
year, to the number of 489, are tabulated below : — 

Indictments for murder, 17 

Exceptions and reports in criminal cases, 19 

Informations ex officio, 6 

Informations upon relation of public officers, 76 

Application for grant of informations upon the relation of private 

persons, ............ 2 

Writ of error, 1 

Petitions for abolition of grade crossings, 9 

Requisitions for fugitives from justice, ...... 47 

Voluntary proceedings for dissolution of corporations, ... 31 

Tax returns of corporations enforced without suit, .... 185 

Collections made without suit, 57 

Public charitable trusts and collateral legacy taxes, .... 20 

Miscellaneous cases, 21 

491 
Indictments for Murder. 

William Coy, convicted March 26, 1892, of the murder 
of John Whalen, Aug. 30, 1891 (Messrs. H. C. Joyner 
and C. J. Parkhurst, counsel), at the time of the last report 
was awaiting execution, of which a respite was granted from 
Jan. 27 to Feb. 23, 1893. Feb. 18, 1893, a motion for a 
new trial was heard and overruled, and exceptions were 
taken. Feb. 21, 1893, a petition for a writ of error was 
filed in the Supreme Judicial court, and was heard on the 
same day by the full court, at Boston, and denied; Feb. 
23, 1893, a further respite of one week was granted. Feb. 
27, at a hearing before the Superior court on allowance of 



6 ATTORNEY-GENERAL'S REPORT. [Jan. 

the exceptions to the ruling on the motion for new trial, 
the exceptions were disallowed, and sentence of death was 
executed March 3, 1893. 

Wallace W. Holmes of Chicopee, convicted June 30, 
1892, of the murder of his wife Nellie F. Holmes, Sept. 1, 
1891 (Messrs. A. L. Green and M. F. Druce, counsel, with 
whom on the motion for new trial was Henry C. Bliss, Esq.), 
was at the date of the last report awaiting execution of the 
sentence of death. On Jan. 19, 1893, application to the 
governor and council for commutation of sentence was made 
and refused. A motion for a new trial was heard at Spring- 
field, Jan. 31, 1893, and denied. Sentence was executed 
Feb. 3, 1893. 

August Langner of Dedham, indicted Sept. 12, 1891, for 
the murder of Mary Emerson, at Dedham, June 2, 1891 ; 
apprehended in October, 1892; arraigned Oct. 28, 1892 
(Messrs. Henry E. Fales and C. C. Mellen assigned as 
counsel), was tried at Dedham Dec. 4-7, 1893, before 
Blodgett, Sherman and Fessenden, J J. The trial was con- 
ducted for the Commonwealth by District Attorney Robert 
O. Harris. The prisoner was convicted of murder in the 
second degree, and was thereupon sentenced and committed 
to the State Prison for life. 

Charles Abraham of Clarksburg, 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, and Isaac Be- 
noit, otherwise called Isaac Joseph Benoit, otherwise called 
Joseph Benoit, of Clarksburg, separately indicted at the same 
time as accessory before the fact to the same homicide, 
arraigned July 22, 1892 (Messrs. M. E. Couch and C. J. 
Parkhurst assigned as counsel), were severally released on 
their own recognizance July 10, 1893, the evidence at that 
time being deemed insufficient to convict. The indictments 
remain on file. In charge of District Attorney Charles L. 
Gardner. 

Ellex M. Gloster of "Weymouth, indicted in Norfolk, 
Sept. 9, 1892, for the murder of her infant child at Wey- 



1894.] PUBLIC DOCUMENT — No. 12. 7 

mouth, March 5, 1892, arraigned Dec. 28, 1892 (Messrs. 
Edward Avery and Albert P. Worthen assigned as counsel), 
was tried at Dedham April 10-14, 1893, before Mason, 
C.J., and Dunbar and Corcoran, J J. ; the trial was con- 
ducted for the Commonwealth by District Attorneys Harris, 
and William H. Moody, of the Essex district. The result 
was an acquittal. 

Richard Powell of Somerville, indicted in Middlesex, 
Oct. 17, 1892, for the murder of George W. Brawn, at 
Somerville, Dec. 22, 1889, arraigned Nov. 1, 1892 (John 
B. Goodrich, Esq., assigned as counsel), withdrew his plea 
of not guilty June 28, 1893, and offered a plea of guilty of 
murder in the second degree, which was accepted, and he 
was sentenced and committed to the State Prison for life. 
District Attorney Fred N. Wier assisted in this case. 

Edward Beauregard, otherwise called Edward Begor, 
otherwise called Ed. Begor, of Orange, indicted in Franklin, 
Nov. 15, 1892, for the murder of Abigail Rogers, at Wen- 
dell, Sept. 4, 1892, arraigned Nov. 22, 1892 (Messrs. J. A. 
Titus and E. Bicknell assigned as counsel), withdrew his 
plea of not guilty April 20, 1893, and offered a plea of 
guilty of murder in the second degree, which was accepted, 
and he was sentenced and committed to the State Prison for 
life. In charge of District Attorney John A. Aiken. 

Lizzie Andrew Borden, indicted in Bristol, Dec. 2, 
1892, for the murder of Andrew Jackson Borden and Abby 
Durfee Borden, at Fall River, Aug. 4, 1892, was arraigned 
May 8, 1893, and pleaded not guilty. No formal assign- 
ment of counsel was requested or made. Messrs. George D. 
Robinson, Melvin O. Adams and Andrew J. Jennings were 
retained as counsel and conduced the defence. Trial at New 
Bedford, June 5-20, 1893, before Mason, C.J., and Blodgett 
and Dewey, J J. The trial was conducted for the Common- 
wealth by District Attorneys Hosea M. Knowlton and William 
H. Moody. The result was an acquittal. 

This case attracted the public attention to a degree unpre- 
cedented for many years, and was the subject of extended 
and heated discussion and comment, much of which was in 



8 ATTORNEY-GENERAL'S REPORT. [Jan. 

the last degree ill-informed, intemperate and calculated to 
prejudice both the Commonwealth and the accused. There 
are indications that the public discussion of the matter, and 
the resulting popular excitement, affected the conduct as well 
as the result of the trial. The history of the case furnishes 
abundant evidence that reckless and undiscriminating comment 
publicly made on the merits of a pending judicial proceeding, 
of which the whole truth is rarely if ever known to the public, 
affects the integrity of the judicial system and is inconsistent 
with the proper administration of the laws. It will serve to 
awaken the attention of the courts, in whose hands is the only 
practicable remedy, to the necessity of protecting themselves 
so far as possible against exterior influences calculated to 
pervert the course of justice, which are as likely to be in- 
voked in behalf of the guilty as of the innocent, and which, 
if they protect a victim of mistaken accusation to-day, may 
destroy another to-morrow. 

The experience of this case has led to the suggestion that it 
may become expedient to provide for a right of exception 
by the Commonwealth in criminal cases. It has been doubted 
whether this can be done consistently with the rule that a 
person shall not be twice put in jeopardy for the same offence. 
But there is no such prohibition in our Constitution, and the 
provision of the Constitution of the United States to this 
effect does not apply to the States. I am not yet convinced, 
however, of the necessity of so important and radical a change 
in our criminal procedure, especially as I doubt if it would 
prove to be of practical value; though there is some reason to 
believe that the criminal law may be warped out of the right 
line by the marked and perhaps natural inclination to rule 
doubtful points in a capital trial, however important, in favor 
of the accused. 

James Albert Trefetiien, indicted with William H. 
Smith in Middlesex, Feb. 12, 1892, for the murder of Deltena 
J. Davis, at Medford, Dec. 23, 1891 (Messrs. John D. Long 
and Marcellus Coggan assigned as counsel), convicted of 
murder in the first degree May 4, 1892, which conviction 
was set aside on exceptions Sept. 0, 1892, was again tried at 
Cambridge, Sept. 18-29, 1893, before Sherman, Dunbar and 
Braley, JJ. The Commonwealth had at the trial the valuable 



1894.] PUBLIC DOCUMENT — No. 12. 9 

assistance of ex-District Attorney P. H. Cooney, in whose 
term of office the indictment was found and first tried, and 
William Schofield, Esq., participated in the defence, with 
Messrs. Long and Coggan, the counsel assigned. The result 
was an acquittal. 

The vicissitudes of this case are worth noting, especially 
as it marks a turning-point in our criminal procedure. From 
the adoption of the Constitution until chapter 19(5 of the Acts 
of 1859, the law required all capital cases to be tried before 
a quorum of the full bench of the Supreme Judicial court. 
This statute transferred them to the Superior court ; but at the 
extra session of the legislature held in the latter part 
of that year, and before any cases were tried in the Superior 
court, they were remanded by chapter 282 of that year to the 
Supreme Judicial court, to be tried as theretofore by a 
quorum of all the judges, with a right of exception on ques- 
tions of law. This continued until by chapter 232 of 1872 the 
required number of judges was reduced to two; and this con- 
tinued until by chapter 379 of 1891 they were again trans- 
ferred to the Superior court. The reports show that during 
this period twenty capital cases tried in the Supreme Judicial 
court were by exceptions or otherwise before the full bench 
of that court on questions of law, and in every case the con- 
viction was affirmed. Trefethen's case was the first capital 
conviction in the Superior court which came before the Su- 
preme Judicial court for review, and, so far as the reports 
disclose, is the first capital conviction ever set aside in the 
Commonwealth. The ground of decision was the exclusion 
by the Superior court, at the trial, of the evidence of Sarah 
L. Hubert, a trance medium, offered by the defence, to the 
effect that on the day before the alleged murder a young 
woman, whom the witness said she recognized by a photo- 
graph as Deltena Davis, came to her place of business in 
Boston, said she was pregnant, etc., and in the course of 
the conversation said she was going to drown herself. In 
the state of the law as it was at the time of the trial, this state- 
ment was inadmissible as hearsay. The Superior court, in 
excluding it, followed the case of Commonwealth v. Felch, 
132 Mass. 22, wdiich is overruled by the present decision. At 
the second trial the evidence of Hubert was put in, but was so 



10 ATTORNEY-GENERAL'S REPORT. [Jan. 

met by the government that it was practically abandoned by 
the defence and could not have been believed by the jury ; 
and while some other new evidence was offered, it was hardly 
ot a character to materially influence the verdict. The result 
is that Trefethen was convicted by the first jury of murder 
in the first degree, the conviction was set aside for a ruling 
which was in accordance with the declared state of the law at 
the time of the trial, and at the second trial he was acquitted, 
upon substantially the same evidence. 

Indictments for murder found since the date of the last annual 
report have been disposed of as follows : — 

Amos L. Morse of Boston, indicted in Suffolk, July 8, 
1893, for the murder of William T. S. Wardwell, at Boston, 
June 24, 1893. The prisoner having been proved to be 
insane, he was ordered to be committed to the State Lunatic 
Hospital at Taunton, there to be kept to await the further order 
of the court. In charge of District Attorney Oliver Stevens. 

Jose Carrea de Mello of Fall River was indicted in 
Bristol, July 24, 1803, for the murder of Bertha M. Man- 
chester, at Fall River, May 30, 1893. He was arraigned 
Sept. 18, 1893, and pleaded not guilty. On Jan. 8, 1894, 
he retracted his former plea, and pleaded guilty of murder in 
the second degree, and was sentenced and committed to the 
State Prison for life. Marcus G. B. Swift, Esq., appeared as 
counsel for the defendant. In charge of District Attorney 
Knowlton. 

Sandy W. Bryant of Boston was indicted in Suffolk, 
Dec. 9, 1893, for the murder of James A. Sullivan, at Boston, 
Nov. 25, 1893. He was arraigned Dec. 19, 1893, and pleaded 
not guilty, and on Dec. 26, 1893, he retracted his plea of not 
guilty and pleaded guilty of manslaughter, and was sentenced 
and committed to the State Prison for five years. In charge 
of District Attorney Stevens. 

The following indictments for murder are pending : — 

Thomas A. Brown of Boston, indicted in Suffolk, May 6, 
1 S < ) ; ', , for the murder of Catherine Brown, otherwise called 
Catherine O'Mealley, at Boston, April 4, 1893, was arraigned 



1894.] PUBLIC DOCUMENT — No. 12. 11 

May 22, 1893, and pleaded not guilty, and Messrs. Horace G. 
Allen and Michael J. Creed were assigned as counsel. After- 
ward, on June 23, 1893, a second indictment was found, on 
which he has not yet been arraigned. In charge of District 
Attorney Stevens. 

Richard Haley of West Stockbridge was indicted in Berk- 
shire, July 12, 1893, for the murder of Thomas O'Brien, at 
West Stockbridge, March 19, 1893. Charles E. Hibbard, 
Esq , appears as counsel for the defendant. In charge of 
District Attorney Gardner. 

Edward Cunningham of Holden was indicted in Worces- 
ter, Aug. 17, 1893, for the murder of William Baxter, at 
Holden, July 6, 1893. He was arraigned Nov. 4, 1893, and 
pleaded not guilty, and on Dec. 11, 1893, he retracted his 
former plea, and pleaded guilty of manslaughter, and is now 
held awaiting sentence. Messrs. John E. Thayer and Arthur 
P. Rugg appeared as counsel for the defendant. In charge of 
District Attorney Francis A. Gaskill. 

Jose Vieira Sarmento of New Bedford was indicted in 
Bristol, Nov. 11, 1893, for the murder of Maria das Candeias, 
otherwise called Maria das Candeias de Mello, at New Bed- 
ford, June 9, 1893. He was arraigned Nov. 22, 1893, and 
pleaded not guilty, and J. L. Gillingham, Esq., was assigned 
as counsel. In charge of District Attorney Knowlton. 

Daniel M. Robertson of New Bedford was indicted in 
Bristol, Nov. 11, 1893, for the murder of Mary Robertson, 
at New Bedford, Sept. 9, 1893. He was arraigned Nov. 
22, 1893, and pleaded not guilty. Timothy W. Coakley, 
Esq., appeared as counsel. In charge of District Attorney 
Knowlton. 

John Mackie was indicted in Suffolk, Jan. 6, 1894, for the 
murder of Mercy L. Randall, at Boston, Nov. 21, 1893. 

The changes in procedure which the Legislature has made 
at my suggestion, putting the criminal appeals in charge of 
the district attorneys, and giving the attorney-general a dis- 
cretion as to participating in capital trials, are working well, 



12 ATTORNEY-GENERAL'S REPORT. [Jan. 

and are likely to be still further approved by experience. 
So far as I am informed this is the view of the district attor- 
ne}^s now in office, and of others best qualified to judge. 
The number of criminal appeals is already diminishing. I 
have been unavoidably prevented during the past year from 
participating in two capital trials in which I should otherwise 
have deemed it my duty to engage, but they were ably and 
satisfactorily conducted for the Commonwealth by the dis- 
trict attorneys. There is no reason to doubt that under the 
new system that officer will always have the assistance of 
the attorney-general when he needs or desires it and circum- 
stances permit. 

Infanticide. 

One of the capital cases tried during the year illustrates 
anew the difficulty of securing the conviction of a woman 
charged with the murder of her infant child. Under the exist- 
ing law the grand jury and the prosecuting officer, though 
having the power to indict for manslaughter, are logically 
and morally bound to indict and try such cases, if appearing 
to be malicious, as for murder, which leads upon conviction to 
the penalty of death or imprisonment for life. This is liable 
to result in a failure of justice which might be avoided if the 
penalty were less severe. Some of these cases are of great 
hardship and appeal strongly to the sympathies of the jury, 
as, for example, when the mother has been seduced and aban- 
doned by the father of the child ; and in many of them, even 
in the absence of extenuating circumstances, the evidence is 
not of such a character as to procure a conviction of murder, 
though there may be no substantial doubt of the guilt of the 
accused. There is also high medical authority for the belief 
that some of these homicides are due to the mental disturbance 
which sometimes accompanies childbirth, rendering the mother 
more or less irresponsible for her conduct. For these and 
other reasons, both of justice and humanity, I suggest the 
expediency of providing that such homicide, even if appearing 
to be done with legal malice, may in the discretion of the grand 
jury and the prosecuting officer be indicted as manslaughter 
instead of murder. 



1894.] 



PUBLIC DOCUMENT — No. 12. 



13 



Statistics of Murder in Massachusetts. 

The subjoined table is from an article on "Murder in 
Massachusetts," in the quarterly publication of the American 
Statistical Association for September, 1893, in which the con- 
clusion is reached by the writer, Mr. Waldo L. Cook, that the 
number of homicides in Massachusetts is decreasing, as appears 
by this comparison of the number of indictments for the period 
of 1871-1881 with those of the period of 1882-1892 ; and that 
the cities and more thickly populated parts of the Common- 
wealth compare favorably in this respect with the rural dis- 
tricts, the record of the western counties being least favorable. 





Indictments. 


Convictions. 
First and Second Degree. 


Counties. 


1871-18S1. 


1882-1892. 


Total. 


1871-1881. 


1882-1892. 


Total. 


Barnstable, 








1 


- 


1 


- 


- 


- 


Berkshire, . 








7 


6 


13 


4 


1 


5 


Bristol, 








7 


5 


12 


4 


- 


4 


Dukes, 








- 


- 


- 


- 


- 


- 


Essex, 








2 


14 


16 


1 


7 


8 


Franklin, . 








4 


3 


7 


4 


1 


5 


Hampden, . 








8 


8 


16 


3 


3 


6 


Hampshire, 








4 


6 


10 


2 


2 


4 


Middlesex, 








13 


14 


27 


6 


6 


12 


Nantucket, . 








- 


- 


- 


- 


- 


- 


Norfolk, . 








11 


4 


15 


4 


- 


4 


Plymouth, . 








4 


2 


6 


3 


2 


5 


Suffolk, 








48 


19 


67 


20 


6 


26 


Worcester, . 








11 


8 


19 


5 


5 


10 


Total, . 


120 


89 


209 


56 


33 


89 



14 ATTORNEY-GENERAL'S REPORT. [Jan. 

Supreme Judicial Court. 
The attention of the legislature, has heretofore been called 
to the expediency of dispensing with the sessions of the full 
court in certain counties in which it is now required to 
attend. It is believed that the general convenience may be 
promoted by providing for sessions of the full court at Worces- 
ter and Springfield twice in each year, and that all cases 
from the eastern counties may be conveniently heard at the 
sessions in Boston. 

Superior Court. 

Notwithstanding recent additions to the number of justices 
of the Superior court, there is not adequate provision for 
the constantly increasing volume of its business. The re- 
peated transfers of work from the Supreme Judicial court 
and the normal increase from the growth of the Common- 
wealth have required much extension of the time allotted to 
sittings in all the larger counties. Further transfers which 
may become necessary or expedient to give the Supreme Ju- 
dicial court opportunity for its appellate work may make the 
demand upon the Superior court still heavier. There are 
serious objections to further additions to the number of justices, 
and the weight of opinion with the court and with the best 
informed members of the bar is believed to be that the num- 
ber is now as large as efficiency in a court of general jurisdic- 
tion will permit, unless it can be organized in divisions with 
reference to the several classes of its work ; and this may be 
considered undesirable or impracticable. Various methods of 
effecting the object in view have been considered, among them 
the establishment in Suffolk County of a separate court for the 
criminal jury business, with such civil jurisdiction also as may 
be deemed expedient. It is believed that the desired relief 
may be best secured by providing for final disposition of 
minor causes in local courts. 

Uniformity in the organization and jurisdiction of local 
courts is important in securing unity in administration of the 
law throughout the Commonwealth, and great gain in this 
respect has been made ; but there are practical difficulties in 



1894.] PUBLIC DOCUMENT — No. 12. 15 

putting.juries into the smaller district courts, as the experiment 
has proved. It is believed that there are no insuperable 
obstacles to securing jury trials with both economy and 
efficiency in local courts at the larger centres. Such courts 
in their jury work may be given county jurisdiction, or in 
counties having more than one shire town the court at each 
shire m:iy be given jurisdiction of a district having convenient 
access thereto. The plan here suggested may well be intro- 
duced tentatively, it" at all, beginning at the largest centre 
where conditions are most favorable to its success and extend- 
ing it gradually if found to work satisfactorily. 

It may reasonably be required also that criminal defendants 
claim jury trial, if desired, before trial in the court of original 
jurisdiction. There is no sufficient reason why a person 
charged with crime should be entitled to two trials. While to 
require such election would materially reduce the number of 
trials, it is probable that its immediate effect would be to 
increase the number of trials by jury, and unless and until such 
trials can be had in local courts the change may not be desirable 
or practicable. 

Another measure which would operate at once to materially 
relieve both the Superior and Supreme Judicial courts, and, what 
is of greater moment, promote the efficiency of criminal jus- 
tice without endangering the rights of persons accused, would 
be the withdrawal of the right of exception or appeal in matter 
of law in all trials for misdemeanor ; leaving the right of the 
presiding justice to report a question, as now provided by 
law, when in his opinion it is so doubtful or important as to 
require its determination by the Supreme Judicial court. A 
large proportion of the exceptions taken in such cases are of 
no practical importance in the determination of the case. Many 
of them have been repeatedly adjudicated, and not a few are 
taken solely for delay. 

In this connection I recommend that the requirement of 
Statute of 1891, chapter 379, section 2, be so modified that 
capital indictments may be tried before one judge or more, 
leaving it to the court to provide for the attendance of more 
than one judge if necessary. In most of the States capital 
cases are tried, like other criminal cases, before a single judge. 



16 ATTORNEY-GENERAL'S REPORT. [Jan. 

There is ordinarily no sufficient reason why several judges 
should be taken from their work to sit iu a trial for murder 
unless it is likely to be of unusual importance or difficulty. 
This will materially relieve the Superior court, the sessions 
of which have sometimes to be interrupted to furnish a com- 
plement of judges for capital trials. My own belief, con- 
firmed by observation and experience in this office, is that 
the procedure in capital cases should be put as nearly as may 
be upon the same footing as in other crimes ; and that the 
exaltation of murder which has heretofore characterized our 
system renders it more difficult to convict the guilty and is in 
no wise essential to the protection of the rights of the accused 
in any case. 



The Intekchangeable Mileage Ticket Cases. 

In the cases against the Boston & Albany and Old Colony 
Railroad companies, being two of the informations brought 
against the principal railroad corporations of the state to en- 
force chapter 389 of the Acts of 1892 as reported by me last 
year, which were taken to the full court with an agreement as 
to the others that they should abide the result, the statute was 
held unconstitutional, by a majority of the court. Several of 
the grounds of defence relied on were disposed of adversely to 
the defendants, and the decision seems to leave the way open 
to a new enactment which may perhaps be so framed as to 
avoid the present objections. It was held that the statute is 
not in violation of the commerce clause of the Constitution of 
the United States ; that it is immaterial that some roads in the 
Commonwealth may not be financially responsible for the re- 
demption of the tickets; that it is within the power of the leg- 
islature to fix railroad rates, the question of the reasonableness 
of the rates fixed not arising here; that it is immaterial that 
some roads may be exempted or excluded from the operation 
of the act ; and that it involves no unconstitutional delegation 
of power to the Railroad Commissioners. It was also inti- 
mated, though not decided, that the Old Colony Company has 
no longer the benefit of certain special provisions of its charters 
as to rates of fare ; and assumed, though not decided, that it is 



1894.] PUBLIC DOCUMENT - No. 12. 17 

not always necessary for a passenger to pay his fare in advance, 
and held that if not, the statute is not in violation of the legal 
tender clause of the Constitution of the United States. In the 
opinion delivered by the Chief Justice, apparently in behalf of 
himself and two associates, the statute is held unconstitutional 
on the grounds that it authorizes a railroad to impose con- 
ditions on the carriage of passengers by other roads, and that 
it provides no adequate security for payment for the service. 
At the end of this opinion it is stated that two other justices, 
" without expressing an opinion upon the other matters dis- 
cussed in this opinion," agree that the statute is void as in 
effect a taking of private property for a public use without due 
provision for compensation. The other two justices dissent, 
holding the statute constitutional. 

This decision is noticeable, as indicating a tendency to depart 
from the fundamental rule that a statute shall not be held 
unconstitutional if there is any ground on which, in any view, 
it can be sustained, and also on account of the position of the 
court in making it. Three justices hold the statute unconsti- 
tutional on two specific grounds ; two other justices hold it 
unconstitutional on another ground ; and two justices hold it 
constitutional. Thus the statute is set aside for reasons no one 
of wdiich commands the open assent even of a majority of the 
court. It may therefore properly be inferred that the majority 
is against each of the reasons assigned. If the same process is 
carried a little farther, the validity of the most deliberate and 
important acts of the legislature may turn upon the opinion of 
a single judge in which no other judge concurs, and they may 
be declared void by force of a reason existing in the mind of a 
single judge which all the other judges agree is no reason. It 
is not too much to say that such an exercise of the high power 
to overrule the acts of the legislative branch of the govern- 
ment, within its proper limits a most valuable safeguard of the 
rights secured by the Constitution, would endanger its existence. 

In this connection it is to be remarked that the number of 
decisions in this Commonwealth against the constitutionality 
of statutes is much greater in recent years than it formerly was. 
From a careful examination of the reported cases it appears 
that from the adoption of the Constitution to the present 
time, the constitutionality of two hundred and forty-seven 



18 ATTORNEY-GENERAL'S REPORT. [Jan. 

statutes has been considered by the full court, of which forty- 
one have been set aside. Down to 1860, out of sixty-two 
statutes drawn in question, ten were held unconstitutional; 
from 18(50 to 1870, out of forty questioned, four were held 
unconstitutional ; from 1870 to 1880, out of sixty-three ques- 
tioned, thirteen were held unconstitutional ; from 1880 to 1890, 
out of thirty-five questioned, eight were held unconstitutional, 
and from 1890 to the present time, out of twenty questioned, 
six were held unconstitutional. The proportion of statutes set 
aside to the whole number drawn in question was, prior to 
18(50, less than one in six; from 1860 to 1870, one in ten; 
from 1870 to 1880, a little more than one in five ; from 1880 to 
1890, a little less than one in four; and since 1890, a little less 
than one in three. Within the last four years more statutes 
have been declared unconstitutional than in the first seventy 
years under the Constitution. 

While this statement does not conclusively prove any- 
thing, a tendency so unmistakable can hardly be accounted 
for on any theory of chances. It indicates an increasing 
liability of the legislature to exceed its constitutional power, 
or a growing disposition of the court to restrain its exercise. 
The legislature cannot be unmindful of its own responsibility 
to guard against unconstitutional enactments ; a responsibility 
which cannot be devolved upon the judiciary and ought not to 
be shared with it. On the other hand, an eminent judge long 
ago said, foreseeing the absolute importance of preserving the 
right equipoise of power between the different departments 
of the government, " The interference of the judiciary with 
legislative acts, if frequent or on dubious grounds, might 
occasion so great a jealousy of this power and so general a 
prejudice against it as to lead to measures ending in the total 
overthrow of the independence of the judges, and so of the 
best preservative of the Constitution. The validity of a law 
ought not, then, to be questioned unless it is so obviously re- 
pugnant to the Constitution that when pointed out by the 
judges, all men of sense and reflection in the community may 
perceive the repugnancy. By such a cautious exercise of this 
judicial check, no jealousy of it will be excited, the public 
confidence in it will be promoted, and its salutary effects be 
justly and fully appreciated." 



1894.] PUBLIC DOCUMENT — No. 12. 19 

The Lobby Law. 
All the returns required by section 6 of this law, chapter 
456 of the Acts of 1890, were filed in proper form and in most 
cases seasonably. The few returns which were late appeared, 
with one exception, to have been delayed by some accident or 
mistake and not wilfully. In the excepted case, the corpora- 
tion in question disputed its obligation to make a return, on 
the ground that the payments to be returned were for services 
and expenses incurred upon an order of investigation into the 
conduct of certain railroads, and that this was not "legisla- 
tion." Being of opinion that an order of investigation can be 
construed to be legislation, in the sense and for the purposes 
of the statute, and that in order to make the law effective it 
should be so construed, at least until the courts determine the 
contrary, I notified the corporation that a prosecution would 
be commenced, whereupon the return was immediately filed. 

Abolition of Grade Crossings. 
The number of applications under the Statute of 1890 for 
abolition of grade crossings of railroads has decreased during 
the year, perhaps in consequence of the present financial strin- 
gency. The number of new cases has been but nine, as com- 
pared with thirty in 1890, sixteen in 1891 and twenty in 1892. 
The amount drawn from the treasury on this account during 
the past year, out of the limited annual appropriation of 
$500,000, was $9(3,141.97, as compared with $87,056.29 in 
1892, prior to which time no payments from the treasury were 
called for. 

The Oleomargarine Cases. 
Upon application to the Supreme Court of the United States, 
the cases of Huntley and Plumley, in error, vs. The Common- 
wealth (156 Mass. 236) have been advanced for argument on 
the first Monday of March next. They are likely then to be 
argued, and a decision of the important questions which they 
involve, especially of the power of the State to forbid the sale 
by the importer in the original package of oleomargarine 
brought from other States, may in the ordinary course be 
looked for within two or three months from that time. 



20 ATTORNEY-GENERAL'S REPORT. [Jan. '94. 

Opinions. 

Appended are copies of such of the opinions given during 
the year as may be of use for future reference. 

The practice of publishing the opinions, which I adopted for 
the convenience of this department and the state officers, has 
led to an increased demand for copies of the annual report, 
which the edition now provided by the statute is inadequate to 
supply. I respectfully suggest the expediency of increasing 
the number from twelve hundred and fifty, as now established, 
to fifteen hundred. 

In taking leave of this office it gives me pleasure to acknowl- 
edge the attention which the legislature has paid to my recom- 
mendations, and to express my continued belief that the changes 
thus effected, in the duties of this office and in the general laws, 
are in the public interest and will be further approved by 
experience. 

Messrs. George C. Travis and Charles N. Harris have 
continued in office as first and second assistant attorney- 
general, respectively. 

ALBERT E. PILLSBURY, 

AUorney General. 



OPIKIOKS 



[It is not the duty of the treasurer, under the Legacy Tax Act, to 
determine whether, in the case of a bequest in trust for a sister- 
in-law of the testator during life, with remainder upon her death 
to nieces of the testator, it is proper for the executors to have 
the life estate appraised and the amount of the tax thereon paid 
by the sister-in-law, and this amount deducted from the whole 
tax, the balance to be paid on the remainder, but this question 
must be settled by the court in accordance with the statute.] 

Attorney-General's Department, 
Boston, Feb. 13, 1893. 
Hon. George A. Marden, Treasurer. 

Sir : — In reply to your inquiry under the Legacy Tax Act, chap- 
ter 425 of the Acts of 1891, whether, in the case of a bequest in trust 
for a sister-in-law of the testator during life, with remainder upon 
her death to nieces of the testator, it is proper for the executors to 
have the life estate appraised and the amount of the tax thereon paid 
by the sister-in-law and this amount deducted from the whole tax, 
the balance to be paid on the remainder, I have to say that in my 
opinion your duty does not require you to determine nor to concern 
yourself with this question. The executors and trustees must settle 
it with the court, in accordance with the statute, and I see no reason 
why it should be your duty, or how you have any authority, to give 
them any directions upon it. Even in the case provided for by sec- 
tion 2 of the statute, of a bequest to a direct heir for life or years 
with remainder to a collateral heir, it is, in the first instance, at least, 
the duty of the executor or trustee, and not the duty of the treasurer 
of the Commonwealth, to see that the life estate is properly appraised 
and the tax paid. Inasmuch as in the present case the whole legacy 
is taxable, and as you have under section 1 a remedy against the 
executors or trustees for the whole tax, and as the statute makes it 
the duty of the executors or trustees in all cases to have the proper 
appraisal made and to deduct and pay over the tax before settlement 
of their final account, I see no reason why questions of the time or 
method of appraisal, division or pa} r ment, should be cast upon you 
to determine. They must ultimately be determined by the court in 



22 ATTORNEY-GENERAL'S REPORT. [Jan. 

any case, and the executors or trustees can go to the court at any 
proper time for determination of such questions, if they are unable to 
determine them without assistance. 

Very respectfully, your obedient servant, 

A. E. Pillsbury, Attorney-General. 



[The offer of a newspaper to pay a certain amount to a certain class 
of advertisers in case of death or disabling accident is, in effect, 
a contract of insurance, and unlawful.] 

Attorney-General's Depabtm ent, 
Boston, April 26, 1893. 

Hon. George S. Merrill, Insurance Commissioner. 

Sir : — Upon your inquiry concerning the legality of an offer of a 
newspaper to pay a certain amount to a certain class of advertisers 
in case of death or disabling accident, I see no reason to doubt that 
the case is covered by my opinion given you under date of December 
2, 1891, in a similar case, that the transaction is in effect a contract 
of insurance and is unlawful. 

Very respectfully, your obedient servant, 

A. E. Pillsbury, Attorney -General. 



[It is not the duty of the surveyor-general of lumber or his deputies 
to determine the question of the liabilty of a person not a sworn 
officer, who measures and marks lumber, and gives an account 
of the same for settlement under section 19 of chapter 63 of the 
Public Statutes.] 

Attorney-General's Department, 
Boston, May 3, 1893. 
His Excellency William E. Russell. 

Sir: — There appears under the statute to be no duty of the sur- 
veyor-general of lumber, or his deputies, which requires them to de- 
termine such a question as that submitted to you by him under section 
19 of chapter 63 of the Public Statutes ; and while it is probable that 
a person acting as described in his letter would render himself liable 
to the penalty, the proper way to raise and determine the question is 
to apply to the district attorney of the district in which any such sup- 
posed olfence is committed, to prosecute it under the statute. 
Very respectfully, your obedient servant, 

A. E. Pillsbury, Attorney-General. 



1894.] PUBLIC DOCUMENT — No. 12. 23 



[Legislature. Attempted exercise of judicial power. Legislature, in 
properly terminating the business of certain corporations by 
repeal of the legislative authority under which it is transacted, 
cannot determine in advance the rights of all parties in the 
property of the corporations and require it to be so distributed 
among them. This is a judicial duty. Doubted whether the 
legislature can provide that any person who may be appointed 
by an executive officer to examine books and accounts of corpo- 
rations shall have power to summon and examine under oath 
any officer or agent of such corporation and any other person.] 

Attorney-General's Department, 
Boston, May 9, 1893. 
To His Excellency the Governor. 

la compliance with your request for my opinion of the constitution- 
ality of the bill entitled "An Act to terminate the endowment busi- 
ness of fraternal beneficiary corporations," I have examined the bill, 
and notwithstanding the presumptions in favor of legislative acts, I 
am unable to avoid the conclusion that some of its provisions are in 
conflict with the Constitution. 

There is no doubt of the power of the Legislature to put an end to 
the endowment business of these corporations, by withdrawing the 
legislative authority under which it is done. If the bill, after doing 
this, had provided for the winding up of the business by the courts in 
accordance with the rights of the various parties in interest under the 
law, it would be free of any constitutional objection. The stoppage 
of the business will leave the corporations with certain funds in their 
possession, some of them applicable to general, and others, it may 
be, only to special uses, and with a variety of contracts of different 
classes upon their hands, which presumably they will be unable to 
fulfil. The rights of all the parties when the business stops are fixed 
by law. The inquiry into and determination of these various and 
perhaps conflicting rights and the distribution of the assets among 
the various claimants, is essentially and necessarily a judicial duty, 
which must be left to the courts, proceeding according to the rules of 
law. But the bill, in sections 3 and 4, provides for the appointment 
of a receiver to take possession of all the moneys and properties of 
the corporation, of which one common fund is to be made, without 
regard to particular rights in special funds, or to particular uses to 
which alone they may be held, and from this common fund to pay, 
first, the expenses of winding up the business ; second, the debts of 
the corporation contracted in the endowment business, in full, and 
third, to distribute the balance among the certificate holders or their 
beneficiaries in proportion tp the amount of their claims at the passage 
of the act, on the basis of the amount paid by each in assessments. 



24 ATTORNEY-GENERAL'S REPORT. [Jan. 

The bill thus undertakes to determine in advance what the rights 
of each class of claimants shall be, and what disposition shall be 
made of the assets among them. This, in my opinion, is in effect an 
exercise of judicial rather than legislative powers, and is not within 
the province of the legislature. It is possible, though not likely, 
that the bill may deal with the rights of the various claimants and 
dispose of the assets among them exactly as the court would do upon 
proper judicial proceedings. But this does not avoid the difficulty. 
The legislature has no more power to do a judicial act correctly than 
to do it incorrectly. And unless the bill in fact deals with all the 
claimants and disposes of all the assets exactly as they would be 
dealt with and disposed of in court in accordance with law, or, in 
other words, if under the operation of the bill any money would go 
to one claimant which the courts, dealing with the subject in accord- 
ance with the established rules, might determine to belong to another, 
it is plain that such operation, which must to some extent be antici- 
pated, would amount to undue interference with vested rights, if not 
also to the impairment of the obligation of contracts and deprivation 
of property without due process of law. 

There are other minor difficulties, especially in section 2. If the 
legislature can confer the extraordinary powers therein specified, to 
examine books and papers and summon and examine witnesses under 
oath, etc., upon a sworn and responsible executive officer, I doubt 
whether they can be conferred in advance upon any person to be 
appointed by him for the purpose, as the bill provides, without any 
official sanction or responsibility. 

Very respectfully, your obedient servant, 

A. E. Pillsbury, Attorney-General. 



[Obstruction of street by electric wire. General rule that attorney- 
general will not interfere if there is a remedy in hands of local 
authorities, or if the violation of the public right is not serious, 
or if his interference is sought chiefly for protection of private 
interests.] 

Attorney-General'* Department, 
Boston, June 8, 1893. 

To the Honorable the Board of Gas and Electric Light Commissioners. 

I have your communication relating to the complaint of the select- 
men of Braintree to your Board, that certain persons have erected 
electric lighting wires in the streets of Braintree without authority. 

If these wires constitute an obstruction of the streets in the sense 
of the law, or if they materially affect or impair the public safety and 
convenience in travel, I know of no reason to doubt that it is within 



1894.] PUBLIC DOCUMENT — No. 12. 25 

the powers of the local surveyors of highways to remove them ; and 
there are expressions in some of the later decisions of the court indi- 
cating that electric lighting wires may be so regarded. It is a general 
rule of law, applicable to these cases, that the court will not interfere 
if there is an adequate remedy in the hands of the local authorities ; 
and as a rule, therefore, it is held inexpedient by the occupants of 
this office to proceed in such a case. And if this were not so, I doubt 
if any attorney-general would regard the unlawful erection of an 
electric lighting wire in any part of the State as a sufficient violation 
of the public right to call for his interference by proceedings in court. 
So far as it is desired to remove these wires for the purpose of prevent- 
ing or avoiding competition with an existing electric lighting com- 
pany, it clearly is not the duty of the attorney-general to interfere ex 
officio. If the case is within chapter 382 of the Acts of 1887, as 
amended by chapter 274 of the Acts of 1892, your Board, as you are 
aware, is at liberty to proceed in it if it is considered of sufficient im- 
portance to make it your duty so to do, but from your present com- 
munication I do not infer that you have so determined the matter. 
Very respectfully, your obedient servant, 

A. E. Pillsbury, Attorney-General. 



[Gas Commission. Unauthorized opening of streets by a gas 
company is an irregularity in the exercise of its franchise which 
may properly be reported to the attorney-general under ch. 
314 of 1885, though it may not call for proceedings by quo war- 
ranto for forfeiture of the charter. Powers of the board of alder- 
men and superintendent of streets of Boston in such case. 
General rule that attorney-general will not interfere by infor- 
mation to restrain public nuisance by obstruction of street if 
there is a remedy in the hands of local authorities or if there 
are other remedies. Construction of statute not to be favored 
which requires attorney-general to interfere solely or princi- 
pally for protection of private interests.] 

Attorney-General's Department, 
Boston, June 16, 1892. 

To the Honorable Board of Gas and Electric Light Commissioners : 

At the request of the Brookliue Gas Light Company and others 
having an interest in the subject of your report to me that the Brook- 
line company is violating the provisions of its charter and of the Pub- 
lic Statutes by digging up the streets of Boston for the purpose of 
laying gas-pipes therein without the consent of the board of alder- 
men, I have heard them and their counsel upon the questions in- 
volved, and it is proper for me to inform you of my conclusion. 



26 ATTORNEY-GENERAL'S REPORT. [Jan. 

It was objected that the case is not within the Gas Commission 
Act, chapter 314 of the Acts of 1885, and that your B>ard has no 
concern with it, as you are not charged with the care of the streets of 
Boston. While the statute literally includes all violations of law by 
a gas company, there are doubtless some offences to which it is not 
to be applied. If, for example, a gas company should publish a libel, 
I do not suppose the statute requires your Board or the attorney-gen- 
eral to interfere. But if the Brookline company has opened the 
streets of Boston without the consent of the board of aldermen or 
some equivalent authority, it is an irregular or improper exercise of 
its franchise, which, in my opinion, you are justified in noticing and 
reporting to the attorney-general for such proceedings as, in the lan- 
guage of the statute, he may deem expedient. Such proceedings, 
however, must be at common law, as there is no express statutory 
remedy in this case ; and the question arises whether any remedy is 
applicable or is likely to be maintained. 

The principal question of law involved is of the validity of the per- 
mits issued by the superintendent of streets of Boston, which con- 
stitute the only authority the Brookline company has or claims to 
have for opening the streets. There is much reason for the view 
which you seem to have adopted, that it does not rest with the super- 
intendent of streets to determine whether one gas company or several 
shall supply the people of Boston, and while it may be for this execu- 
tive officer to say when, where, or how particular streets shall be 
opened by a company having authority, it is not for him to say 
whether they shall be opened at all by any particular company. On 
the other hand, it is argued with force that as the Brookline company 
has authority under its charter to supply gas in Boston, it needs 
nothing more except leave to open the streets here and there, as its 
operations may require ; and that to grant this leave is an executive 
or administrative act, to be performed, under the charter amendments 
of 1885, by the executive officer having charge of the streets. The 
true view may be that it is, in the first instance, an executive act within 
the power of the superintendent of streets, unless and until the board 
of aldermen sees fit to interfere. In this view, the permits are not 
void, though voidable bj r the action of the aldermen. But I do not 
find it necessary to come to a definite conclusion upon the correctness 
of either of these views, as there are other considerations which, 
under the circumstances, determine the question whether I ought to 
proceed. 

The supposed violation of law by the Brookline company consists, 
first, in an irregular or improper exercise of its franchise ; and second, 
in creating a nuisance by obstructing the public streets. As to the 
first point, the facts do not present a case which calls for the extreme 



1894.] PUBLIC DOCUMENT — No. 12. 27 

remedy of quo ^varranto for forfeiture of the charter ; and apart from 
the nuisance, there seems to be no sufficiently clear and serious in- 
vasion of the public right to call for the intervention of the attorney- 
general, in view of other circumstances. 

As to the alleged nuisance created by opening the streets, the at- 
titude of the local authorities is important to be considered. The 
executive branch of the city government is promoting the work, 
having made the contract under which it is being done. The board 
of aldermen does not attempt to interfere, and has yet taken no 
action either way. If the permits are void, the whole matter is in 
the hands and control of that Board. And whether they are void or 
not, it appears to me that under section 4 of the Brookline company's 
charter of 1854, or section 77 of chapter 106 of the Public Statutes, 
or in the exercise of the general legislative, or judicial powers which 
they still retain, the aldermen have authority to prevent the opening 
of the streets by the Brookline company, unless they are now debarred 
from exercising it by the contract made with the company by the 
mayor ; and if the obligation of the contract puts the matter beyond 
their reach, it puts it also beyond mine. The aldermen may yet con- 
sent to the operations of the Brookline company, or affirm the action 
of the superintendent of streets ; and this would at once put an end 
to any proceedings in court. The court will not ordinarily interfere 
to abate or prevent a nuisance upon information of the attorney- 
general while there is an adequate remedy in the hands of the local 
authorities, nor unless the invasion of the public right is of a sub- 
stantial character and is clearly established and there is no other 
adequate and sufficient remedy. In this case there are other reme- 
dies besides that in the hands of the local authorities, by indictment, 
or action for trespass, or perhaps under section 17 of chapter 186 of 
the Public Statutes ; though doubtless none of these are so efficient 
as a proceeding by the attorney-general if maintainable. If all these 
rules should not be strictly applied to this case, they at least make it 
uncertain whether, in the present position of the matter and in view 
of the attitude of the board of aldermen, any proceeding in court can 
be maintained or will even enable the court to reach and determine 
the question of the validity of the permits or any other important 
question. If the local authorities appeared to be wilfully disregard- 
ing the public interests, or consenting to a serious violation of the 
public right which clearly ought not to be permitted, the court would 
doubtless be more willing to interfere, but the circumstances do not 
appear to present such a case. 

It is contended by a competing company that the Brookline com- 
pany can lawfully enter those parts of the city covered by the contract 
only under section 10 of the Gas Commission Act, after a public 



28 ATTORNEY-GENERAL'S REPORT. [Jan. 

hearing before the board of aldermen, with a right of appeal to your 
Board on the part of any other company aggrieved by the decision ; 
and that I ought to interfere, as otherwise competing companies will 
be deprived of this right. It may be possible to so construe this 
section, but you evidently do not so construe it, as your report is not 
put upon this ground, and it clearly is not necessary ; and a con- 
struction is not to be favored which requires the intervention of the 
law officer of the Commonwealth solely or principally for the pro- 
tection of the private interests of a business corporation. 
Very respectfully, your obedient servant, 

A. E. Pillsburv, Attorney -General. 



[Legacy Tax Act. Treasurer of Commonwealth has no power to 
determine nor duty to advise in advance upon the question 
■whether a particular legacy is taxable, or as to the amount of 
a tax, or when it becomes payable, or any other similar ques- 
tion.] 

Attorney-General's Department, 
Boston, June 19, 1893. 
Hon. George A. Marden, Treasurer. 

Sir : — It is clear that under the Legacy Tax Act the treasurer of 
the Commonwealth has neither the power to determine nor the duty 
to advise in advance in any case as to whether a particular legacy is 
taxable, or for how much it is taxable, or when the tax shall be paid, 
or any other such question. The statute makes it the duty of execu- 
tors, administrators and trustees to ascertain, or cause to be ascer- 
tained, the amount of all taxes due the Commonwealth, and to pay 
them within a prescribed period, and makes it the duty of the court 
to find that all such taxes have been paid before allowing settlement 
of the accounts. The probate court is the only place in which such 
questions can be determined, and is undoubtedly the only place in 
which the legislature intended to have them determined. There is 
no reason to believe that the legislature intended to cast this duty or 
any part of it upon the treasurer of the Commonwealth, and much 
less upon the county treasurers, to whom in any case the tax may be 
paid. I think it is clearly the duty of the several probate courts to 
take care of the interests of the Commonwealth in respect of this tax, 
in the settlement of the accounts of executors, administrators and 
trustees, as it is their duty to take care of the interests of all parties 
concerned, whether represented before the court by counsel or not; 
and I presume there is no doubt or difference of opinion upon this 
among the judges of probate. The provisions of the statute which 
require notice to the treasurer of all taxable cases, by a copy of the 



1894.] PUBLIC DOCUMENT — No. 12. 29 

inventory or otherwise, and which give him power to proceed for ad- 
ministration, to have a special appraisal made in certain cases, and 
other like provisions, are intended to give and do give him a sufficient 
standing in court to work out the rights of the Commonwealth in all 
cases ; but they neither authorize nor require him to deal with these 
cases out of court. 

I think, therefore, that you are warranted in saying, and to avoid 
difficulty will be obliged to say, in substance, in reply to all such in- 
quiries, that you cannot undertake to answer or advise upon them, 
but that you claim in each case the maximum amount which may be 
due the Commonwealth under any construction of the statute ; and 
that executors, administrators and trustees must proceed upon this 
assumption, and must deduct and pay such amount unless and until 
the court determines otherwise. 

Very respectfully, your obedient servant, 

A. E. Pillsbury, Attorney-General. 



[Muskets or rifles are "firearms" in the sense of sec. 124 of chapter 
367 of 1893, though defective or disabled for firing.] 

Attorney-General's Department, 
Boston, June 26, 1893. 

Major-General Samuel Dai/ton, Adjutant-General. 

Sut : — I have your request for my opinion whether under section 
124 of chapter 376 of the Acts of 1893, a percussion muzzle-loading 
Springfield or other musket or rifle, the nipple of which is removed or 
plugged, or a breech-loading rifle of any pattern, of which the firing 
mechanism is removed, is to be considered a firearm in the sense of 
that section. 

In my opinion there can be but one answer to this question. It is 
plain that a firearm is none the less a firearm because it may be tem- 
porarily disabled for effective use. Nobody would doubt or dispute 
that in the common understanding such arms as you describe are fire- 
arms, notwithstanding their temporary defects. It is clear also that 
the reasons of the legislation against the organization or parade of 
unauthorized bodies with firearms are not met or avoided by the cir- 
cumstances stated in your inquiry. Such firearms as you describe 
must, therefore, be taken to be within both the language and the in- 
tent of the statute. 

Very respectfully, your obedient servant, 

A. E. Pillsbury, Attorney -General. 



30 ATTORNEY-GENERAL'S REPORT. [Jan. 



[A sum of money appropriated to Joseph Tilton may be paid to Josiah 
H. Tilton if he is in fact the person for whom the appropriation 
is intended, and is identified as such by the description of him in 

the Resolve.] 

Attorney-General's Department, 
Boston, June 26, 1893. 

To His Excellency the Governor and the Honorable Executive Council. 

I have your request for my opinion whether under chapter 36 of 
the Resolves of 1893 the payment therein directed to be made to 
Joseph Tilton can lawfully be made to Josiah H. Tilton, for whom it 
was in fact intended. I understand that Josiah H. Tilton is in fact 
the only survivor of the men who attempted to rescue the crew of the 
" Aquatic ; " that the name Joseph Tilton was inserted in the resolve 
with the intent to describe the sole survivor, and in the belief that 
his name was Joseph Tilton ; and that there is in fact no such per- 
son as Joseph Tilton having any connection with the matter. Under 
these circumstances I think the recipient of the payment is sufficiently 
identified by being described in the resolve as the survivor of the men 
who attempted the rescue ; and that, in view of this and the other 
facts, the mistake in the name may be disregarded, and the payment 
made to Josiah H. Tilton. 

Very respectfully, your obedient servant, 

A. E. Pillsburt, Attorney-General. 



[Private freight railroad track owned and operated by a copartner- 
ship is not within ch. 365 of 1888 so as to authorize payment by 
the Commonwealth of a stenographer's bill for taking evidence 
at an inquest on a death by accident on such road.] 

Attorney-General's Department, 
Boston, June 27, 1893. 
Hon. John W. Kimball, Auditor. 

Sir : — In reply to your inquiry arising under chapter 365 of the 
Acts of 1888, I have to say that in my opinion this statute cannot be 
construed to require payment by the Commonwealth of a bill for re- 
porting the evidence at an inquest upon the death of an employee 
killed by accident upon a private freight railroad track owned and 
operated by a copartnership. Very likely the legislature would have 
included such cases if they had been thought of ; but the purpose of 
the statute evidently is to put these bills upon the same footing as 
the expenses of the Board of Railroad Commissioners, and to require 
payment of them by the Commonwealth only so far as they can be 
assessed upon and collected of the railroad corporations. No part of 
the expenses of the Commissioners has ever been assessed upon or 
collected of the individual owners of private freight railroad tracks, 
and under the existing statutes I do not think they can be ; and the 



1804.] PUBLIC DOCUMENT — No. 12. 31 

case appears to be the same as to these bills incurred under the Act 
of 1888. 

Very respectfully, your obedient servant, 

A. E. Pillsbury, Attorney-General. 



[Caucuses for the nomination of town officers and delegates to con- 
ventions — how called ] 

Attornet-Genebal's Department, 
Boston, Sept. 6, 1893. 
Hon. William M. Olin, Secretary. 

Sir : — I reply as below to your inquiries under date of August 29 
as to the holding of caucuses : — 

First. Iu any town in which ballots for town officers are provided 
at the expense of the town, under section 293 of Election Act of 
1893, a caucus for the nomination of any town officers who are re- 
quired to be elected by ballot must be called and held under the pro- 
visions of the caucus act, sections 71-74 of the Election Act ; but a 
caucus for the nomination of any officer not required to be elected by 
ballot need not be so called and held. In any town in which ballots 
for town officers are not provided at the expense of the town as above, 
a caucus for the nomination of any town officer need not be so called 
and held. 

Second. A caucus for nominating delegates to a convention can- 
not be called and held otherwise than under and according to the pro- 
visions of sections 71-74. The prohibition at the end of section 71 
appears to be general, and to apply to the selection of all delegates 
to all conventions. 

Very respectfully, your obedient servant, 

A. E. Pillsbury, Attorney -General. 



[It was not the intention of the legislature that the attorney-general 
should go into court against the unauthorized erection of elec- 
tric lighting wires in violation of section 3 of chapter 382 of the 
Acts of 1887, as amended by chapter 274 of the Acts of 1892, 
under any and all circumstances, in any part of the Common- 
wealth, but that, as a rule, he should act in such cases only under 
circumstances involving a substantial violation of the public 
right and interest which the local authorities are unable or 

unwilling to prevent.] 

Attorney-General's Department, 
Boston, Sept. 6, 1893. 

To the Honorable Bjard of Gas and Electric Light Commissioners. 

Gentlemen : — So far as I can judge from the statement of facts 
accompanying your report of a violation, by Alonzo W. Perry of 
Boston, of section 3 of chapter 382 of the Acts of 1887, as amended 



32 ATTORNEY-GENERAL'S REPORT. [Jan. 

by chapter 274 of the Acts of 1892, the case is such as to come 
within the intimation given you in my communication of June 16, 
1893, that as a rule the attorney-general ought not to be required to 
go into court solely or principally for the prevention of business com- 
petition ; and it may also be a case in which it is within the power of 
the local authorities to control the matter and prevent the violation 
of law, if any. If the wires constitute an obstruction of the public 
streets, they are within the reach of the surveyors of highways. 
Under these circumstances it does not appear to me at present that I 
am called upon to interfere. I do not think the legislature ever in- 
tended the attorney-general to go into court against the unauthorized 
erection of any and every electric lighting wire, under auy and all 
circumstances, in any part of the Commonwealth ; and it appears to 
me that he should, as a rule, act in such cases only under circum- 
stances involving a substantial violation of the public right and interest, 
which the local authorities are unable or unwilling to prevent. 

I know no reason why the legislature should not give a remedy 
directly to any person or corporation aggrieved in such a case as this 
appears to be. This would be much more convenient to the parties, 
who need not and ought not to be compelled to rely upon the inter- 
vention of the attorney-general. If a change in or addition to the ex- 
isting law is necessary for this purpose, as it may be, I have little doubt 
that the legislature will make it, if attention is called to the subject. 

If the case in hand is one in which your Board may lawfully pro- 
ceed under section 13 of chapter 314 of the Acts of 1885, and if you 
desire so to do, you will of course be furnished with the necessary 
legal assistance from this office. Whether you may so proceed is 
not entirely clear, but from chapter 314 of 1885 and chapter 382 of 
1887, taken together, there is at least an implication that the Board 
may proceed under section 13 of the former act to enforce section 3 
of the latter. 

Very respectfully, your obedient servant, 

A. E. Pillsbury, Attorney-General. 



[Sections 10 and 16 of chapter 314 of the Acts of 1885 do not confer 
upon the Board of Gas and Electric Light Commissioners the 
authority to adjudicate upon the questions presented by the ap- 
peals of the Boston Gas Light Company from the granting of 
permits to the Brookline Gas Light Company by the superin- 
tendent of streets of Boston.] 

Attorney-General's Department, 
Boston, Sept. 7, 1893. 

To the Honorable Board of Gas and Electric Light Commissioners. 

I reply as below to your inquiry of August 3, whether sections 10 
and 16 of chapter 314 of the Acts of 1885 apply to the appeals of the 



1894.] PUBLIC DOCUMENT — No. 12. 33 

Boston Gas Light Company and others from the granting of per- 
mits to the Brookline Gas Light Company by the superintendent of 
streets of Boston, so as to confer upon your Board authority to adju- 
dicate upon the questions presented by the appeals. My reply has been 
delayed in order to give parties in interest an opportunity to be heard. 

The only right of appeal to your Board conferred by sections 10 
and 16 is from the decision of the mayor and aldermen of a city, or 
selectmen of a town, after a public hearing before them. There has 
been in this case no action of the mayor and aldermen of Boston, and 
the action appealed from is that of the superintendent of streets. If 
the powers of the mayor and aldermen in such cases have been trans- 
ferred by the charter of Boston to the superintendent of streets, as 
has been claimed, it may be that his action will support an appeal. 
But this is, in my opinion, doubtful, and it is clear that, taking the 
statute as it reads, there has been no such action as to form the foun- 
dation of an appeal. 

But apart from this, it appears to me upon the facts stated that 
the Brookline Company must be considered as existing in active oper- 
ation in the city of Boston, in the sense of the statute, at the time of 
its application for and the granting of the permits appealed from. If 
this view is correct it disposes of the question, as the requirement of a 
public hearing with the right of appeal does not apply to such a company. 

I am of opinion, therefore, that these sections of the statute do 
not confer upon your Board the authority to adjudicate upon the ques- 
tions presented by these appeals. 

Very respectfully, your obedient servant, 

A. E. Pillsbury, Attorney-General. 



[Board of Agriculture. Right of agricultural society to representation, 
in any year depends on its title to receive bounty that year. 
Title to bounty and to representation are to be determined by 
the societies' returns between January 10 and the first Wednes- 
day of February each year. Society not entitled to bounty in any 
year unless it has awarded and paid premiums to same amount 
preceding year. Application of bounty to general encouragement 
or improvement of agriculture or manufactures does not by itself 
entitle society to bounty or to representation in the Board. Re- 
quirement of $1,000 invested capital in order to be entitled to bounty 
applies to all societies and means an actually existing invested 
capital. Title of society to representation in the Board accrues 
year by year, and membership of a representative of a society 
terminates when his society ceases to be entitled to representa- 
tion, though within three years from the time when he took his 
seat, subject to reinstatement when the society again acquires the 
right to representation.] 

Attorney-General's Department, 
Boston, Oct. 3, 1893. 

To His Excellency the Governor. 

I have to reply as below to your request for my opinion upon the 
questions raised in relation to the rights of representation of certain 



34 ATTORNEY-GENERAL'S REPORT. [Jan. 

agricultural societies in the Board of Agriculture. The statutes 
bearing upon the subject are more or less complicated and confused 
and are difficult of construction, but upon careful consideration I am 
satisfied that the conclusions stated below embody the only practi- 
cable and intelligible construction which can be put upon them. I 
will state the matter somewhat more fully than might otherwise be 
necessary, in order, if possible, that the whole case may be fully 
understood, with a view to any changes in the law which may be 
thought necessary or desirable. I do not understand that section 11 
of chapter 114 of the Public Statutes is material in the case of either 
of the societies now in question, and I have dealt with the matter 
only in view of such provisions as seem to be applicable to them 
upon the statement of facts presented by you, which of course I 
assume to be correct and sufficiently full for the purpose. 

By sections 1 and G of chapter 114 of the Public Statutes, the 
right of any society to receive any bounty in a particular year 
depends upon its having awarded and paid the same amount in 
premiums, and complied with all the requirements of law and the 
regulations of the Board, during the preceding year. The right of 
any society to representation in the Board in a particular year 
depends upon its title to receive bounty in that year. Section 2, as 
now amended, and section 5, require each society to make the proper 
return on or before the 10th of January in each year, of the facts 
which show whether it is or is not entitled to a payment of bounty 
in the following October ; and the theory of the law undoubtedly is 
that between the 10th of January, when these returns are supposed 
to be in, and the first Wednesday of February, when new members 
take their seats in the Board, the title to representation in the Board 
shall be determined, by and upon the returns. 

It thus appears that the right of each society to representation in 
the Board must be determined at the time when the new members 
take their seats on the first Wednesday of February, according to 
what the society has done or omitted to do during the preceding year, 
as shown by its returns. And as the provision of section 1, that no 
society shall receive any larger bounty in any year than it has 
awarded and paid in premiums during the preceding year, and of sec- 
tion 6, that a society which neglects in any year to comply with the 
requirements of law or regulations of the Board shall not be entitled 
to bounty, are expressed in prohibitory language, I think they must 
be construed as peremptory conditions of representation in the Board, 
failure to comply with any of which forfeits the right of repre- 
sentation. 

The question has been raised whether the application of the bounty 
or its equivalent for the general purpose of the encouragement 



1894.] PUBLIC DOCUMENT — No. 12. 35 

or improvement of agriculture or manufactures, under the permis- 
sion of section 7, is not an equivalent for the earning of bounty, so as 
by itself to entitle a society to representation. I do not think the 
statute can be so construed. The provision that no society shall re- 
ceive a larger bounty than it has awarded and paid in premiums 
during the preceding year was a special enactment, by chapter 258 of 
the Acts of 1870, passed while substantially all the other provisions 
of the law were and had been in force at least for some years ; and 
this clearly indicates the purpose of the legislature that the right to 
bounty shall depend absolutely upon the award and payment of pre- 
miums during the preceding year, and, as has already appeared, the 
right of representation in the Board depends upon the right to bounty. 
The requirement of section 7, to apply the bounty to the general en- 
couragement or improvement of agriculture or manufactures if it is 
not offered in premiums, is undoubtedly binding upon every society ; 
but while compliance with it fulfils the obligation of that section, it 
does not necessarily entitle a society to representation in the Board, 
as the bounty is not received, and therefore cannot be expended until 
October, while the right of the society to representation in that year 
depends upon its having offered and paid in premiums during the 
preceding year an amount equivalent to the bounty. In other words 
under section 7 a society may apply a bounty either in premiums or 
to the general encouragement or improvement of agriculture or manu 
factures ; but the latter application of it would not entitle the so 
cietv to representation in the Board during the succeeding year 
while the former application of it would, if the other requirements 
were fulfilled. 

The question is raised also whether the requirement of section 1 of 
chapter 114, of an invested capital of one thousand dollars, is satisfied 
if a society has ever had and invested a capital equivalent to that 
amount. Section 1 provides that two classes of societies shall be en- 
titled to bounty upon complying with the other requirements, namely : 
societies which were entitled to bounty before May, 1866, of which 
one thousand dollars capital was then as now a condition, and other 
societies whose grounds are not within twelve miles of any others, 
which have raised and invested the same capital. As by section 1 the 
bounty is to a certain extent measured by the capital, and as the 
reasons for requiring a capital seem to apply alike to all societies, it 
appears to me that this requirement applies to all. I think the 
reason of this provision, if not the language, can be satisfied only 
by an actually existing investment of capital of that amount at the 
time when the question of the right of the society to representation 
arises ; and that a previous investment of such capital, which has 
been expended or lost, does not fulfil this requirement ; the purpose 



36 ATTORNEY-GENERAL'S REPORT. [Jan. 

of which seems clearly to be to require an existing and invested 
capital of at least one thousand dollars as a sort of guaranty that 
the society is doing or is prepared to do some actual work in the 
cause of agriculture. 

I understand also that the question is raised whether a member 
taking his seat in the Board on the first Wednesday of February by 
virtue of what his society has done and returned during the preceding 
year, is entitled to serve during the full term of three years, or 
whether his membership may be terminated during that time by the 
failure of his society to continue entitled to bounty ; and that I am 
desired to express an opinion upon this question. Section 2 of chap- 
ter 20 of the Public Statutes provides that persons appointed shall 
hold their offices for three years, and provides for the filling of 
vacancies "in the same manner," namely: by the governor and 
council, or by the societies. As the right to bounty in any year 
depends on what the society has done during the preceding year, and 
as the right to membership in any year depends upon the title of the 
society to bounty in that year, and as the title both to bounty and 
to membership accrues year by year if it accrues at all, and has to 
be shown by the returns of the society on or before the 10th of 
January in each year, I am of the opinion that a society which does 
not show by its returns on or before January 10 that it is entitled to 
a payment of bounty in the following October, is not entitled to 
representation in the Board on or after the first Wednesday of Feb- 
ruary following ; and therefore that the membership of a representa- 
tive of a society which does not show by its returns on or before the 
10th of January that it is entitled to a payment of bounty in the 
following October ceases on the first Wednesday of February follow- 
ing the making of or the omission to make the return ; subject, how- 
ever, to be reinstated within the period of three years, if the society 
within that time acquires the right to bounty in accordance with the 
requirements of the law as here stated. 

Applying these conclusions to the particular cases now in question, 
as they appear by the statement of facts furnished me, I am of 
opinion that the Massachusetts Society for Promoting Agriculture is 
not at present entitled to representation in the Board, as it did not 
offer or pay any premiums last year, nor make any returns as 
required by law ; that the Bay State Agricultural Society and the 
Middlesex Agricultural Society are not at present entitled to repre- 
sentation, as they awarded and paid no premiums last year, and 
therefore did not become entitled to receive any bounty tins year, 
and as their returns do not show the requisite capital. As to the 
Hampden Society, its return fails to show the requisite capital. The 



1894.] PUBLIC DOCUMENT — No. 12. 37 

returns of the Hampshire, the Hampshire Franklin and Hampden 
and the Highland societies show the necessary capital. 

This disposes of all the questions raised in any case on the state- 
ment of facts before me. 

Very respectfully, your obedient servant, 

A. E. Pillsbury, Attorney-General. 



[Where cities and towns have incurred penalties for failure to make 
pauper returns under chapter 84 of the Public Statutes it seems 
to be the better practice for the Board of Lunacy and Charity to 
certify to the treasurer the amount of the reimbursement, if any, 
due for relief, from the Commonwealth to the cities or towns, 
and the penalty in each case, leaving the adjustment to be made 
by the treasurer by whom the settlement must eventually be 

made.] 

Attorney-General's Depaktment, 
Boston, Oct. 4, 1893. 
Hon. George A. Marden, Treasurer. 

Sir : — I acknowledge the receipt of your inquiry, whether it is the 
duty of your department to enforce penalties imposed on cities and 
towns for failure to make pauper returns under chapter 84 of the 
Public Statutes, by making them part of the account in the regular 
settlements with the Commonwealth, or whether the officers charged 
with the making up of the accounts against cities and towns for the 
support of paupers should include the penalties therein. 

The statute does not seem to determine the matter either way, and 
it must therefore be determined on such general considerations of 
convenience and expediency as apply to it. There seem to be two 
classes of these cases : First, cases in which reimbursement for relief 
is due from the Commonwealth to the city or town, against which 
the penalty may be set off ; and second, cases in which the city or 
town has incurred the penalty and nothing is due it for reimburse- 
ment, or, if anything, a less sum than the amount of the penalty. In 
the latter case the Board of Lunacy and Charity cannot work out the 
proper result in their accounts, but must report the penalty to you 
for collection ; and in the former case, while the Board may set off 
the penalty and deduct it from the amount due for reimbursement, 
reporting only the latter to you, I am given to understand that this 
practice would deprive the auditor's office of the detailed information 
as to the whole amount of the receipts and disbursements of the Com- 
monwealth on the pauper account, which it is necessary for the auditor 
to have in order to the proper discharge of his duty. As all collec- 
tions and disbursements in both classes must be made by }'Our de- 
partment, this seems to be an additional reason for ascertaining the 



38 ATTORNEY-GENERAL'S REPORT. [Jan. 

balance therein in all cases, and for dealing with all cases by one 
uniform rule. I assume of course that you are always properly in- 
formed by the Board as to the exact amount due the city or town for 
reimbursement, as well as the amount of the penalty, so that you can 
first set off the penalty against the amounts due for reimbursement, 
if any, and if nothing is due for reimbursement, against any other 
moneys due the city or town, as required by section 37 of chapter 84 
of the Public Statutes. 

Upon such information as I have, it seems to me for these reasons 
the better practice for the Board of Lunacy and Charity to certify to 
your department the amount of the reimbursement and penalty in 
each case, leaving the adjustment to be made in your department 
where the settlement must eventually be made. 

Very respectfully, your obedient servant, 

A. E. Pillsbury, Attorney-General. 



[It is the duty of the trustees of the State Primary and Reform 
Schools to exercise a general oversight and supervision of all 
children committed to the Lyman School for Boys and the State 
Industrial School for Girls during their minority, or until their 
discharge in some manner provided by law.] 

Attorney-General's Department, 
Boston, Oct. 25, 1893. 
To His Excellency the Governor : 

I have your request for my opinion upon the question submitted by 
the trustees of the State Primary and Reform Schools, whether it is 
their duty to supervise during minority children committed to the 
Lyman School for Boys and the State Industrial School for Girls. 

I am not sure that I understand precisely what the trustees desire 
to learn, nor what their idea is of the meaning of the word " super- 
vise," as used in the statute. It is without doubt their duty to exer- 
cise such supervision as the statute prescribes over the inmates of 
these schools while they remain inmates thereof. And I incline to the 
opinion that while the system of apprenticeship established by sec- 
tions 38-44 of chapter 80 of the Public Statutes was in use, it was 
their duty to exercise such supervision over boys or girls so appren- 
ticed or bound out as to keep themselves reasonably informed of the 
condition of the child, with a view to continuing or terminating the 
apprenticeship as the interest of the child might require. This is 
clear as to girls, from section 46, and is at least implied as to both 
sexes, by section 40. I understand, however, that this system has 
gone entirely out of use, and that the inmates of these schools are 



1894.] PUBLIC DOCUMENT — No. 12. 39 

now placed ou probation with families as opportunity offers, without 
formal indentures. There seems to be no express authority for this 
practice iu the statute, but perhaps sufficient authority is implied by 
the apparent recognition in sections 53-56 that inmates of such insti- 
tutions may be placed "in charge of" a person, as distinguished 
from the formal binding out by indenture as an apprentice or ser- 
vant. The provisions of sections 53 and 54, requiring the State 
Board to look after children in this situation, do not necessarily con- 
flict with the duty of the trustees to do the same, nor necessarily re- 
lieve them from that duty. There is also in section 47 a provision 
for the transfer of girls to the Reformatory Prison for Women, but it 
is also provided that upon application of the trustees of the school a 
girl so transferred may be returned to the school ; which seems to 
imply that it is the duty of the trustees to keep themselves informed 
of her condition and progress even while in the Reformatory. 

On the whole, I am of opinion that it is the duty of the trustees ot 
the State Primary and Reform Schools to exercise a general oversight 
and supervision of all children committed to these schools during 
their minority or until their discharge in some manner provided 
by law. 

Very respectfully, your obedient servant, 

A. E. Pillsbury, Attorney- General. 



[Under chapter 474 of the Acts of 1893 it does not appear to be neces- 
sary or material for the Commissioner of Corporations, or for the 
attorney-general to determine the regularity or validity of the pro- 
ceedings of the Bay State Gas Company in effecting or attempt- 
ing to effect the cancellation or surrender of the note given by it 
for $4,500,000. The Commissioner of Corporations under the 
statute appears to have no power or duty but to take what the 
Company offers without admission or acknowledgment of any- 
thing.] 

Aitorney-General's Department, 
Bostox, Nov. 27, 1893. 

Hon. Charles Endicott, Commissioner of Corporations. 

Sir : — In compliance with your request I have examined the papers 
presented to me by Mr. Chandler in behalf of the Bay State Gas 
Company, relating to the cancellation and surrender of the $4,500,- 
000 note under chapter 474 of the Acts of 1893. 

I observe in them several things which might affect the validity of 
the proceedings as a sufficient compliance with the statute, namely : 
the meeting of the Bay State Gas Company of Delaware at which the 
surrender was voted appears by the copy of the record to have been 



40 ATTORNEY-GENERAL'S REPORT. [Jan. 

held November 21st, 1893, while the assignment executed in pursu- 
ance of that vote refers to it as a meeting held November 18th, 1893 ; 
the vote authorizes the president of the Delaware company to assign 
and deliver the note to the Mercantile Trust Company for cancel- 
lation and surrender, while the assignment produced is in form the 
act of the company and not of the president ; and it does not clearly 
appear whether Mr. Dening, the secretary of the Mercantile Trust 
Company, has sufficient authority to execute the power to cancel and 
surrender the note, which was voted by the gas company to the trust 
company and not to its secretary or other officer. There may be 
other like irregularities, or seeming irregularities, though I at present 
notice no others ; and I express no opinion as to the effect of these. 
It does not appear to me to be necessary or material for you, nor 
therefore for me, to determine the effect of these omissions or the 
regularity or validity of the proceedings of the gas company in effect- 
ing or attempting to effect the cancellation and surrender of the note. 
Under the statute you appear to have no power and no duty in the 
premises but to take what the company offers, without admission or 
acknowledgment of anything, which I thiuk you are not required to 
make and which probably would not bind the Commonwealth if made. 
The company, under the statute, must see to it that a legal and effect- 
ual cancellation and surrender of the note is made before December 
1, 1893 ; — failing which, its charter stands repealed. It appears to 
me, therefore, that all questions of the regularity and sufficiency of 
the proceedings to effect the cancellation and surrender in accordance 
with the statute, are their questions and not yours. 

I have called Mr. Chandler's attention to the points above noted, 
and understand from him that steps will be taken to properly cover 
them and any others which may be discovered, if any, before filing 
the papers. But in my opinion your position and duty in the case, 
now and hereafter, are only as I have above stated. 

Very respectfully, your obedient servant, 

A. E. Pillsbury, Attorney- General. 



[Chapter 413 of the Acts of 1893 applies to new editions of histories 
originally published before the passage of the act, if such new 
edition contains a substantial amount of new and valuable 
matter, and if it also fulfils the other requirements of the act.] 

Attorney-Genehai/s Pei-autment, 
Boston, Dec. 6, 1893. 
Hon. William M. Olin, Secretary. 

Sir : — In compliance with the request of the Executive Council to 
lie advised upon the question whether chapter 413 of the Acts of 1893, 



1894.] PUBLIC DOCUMENT — No. 12. 41 

entitled " An Act to authorize the purchase of historical works rela- 
tive to the services of Massachusetts volunteers during the late civil 
war," applies to new editions of histories originally published before 
the passage of the act, I have to say that, in my opinion, the act 
may be construed to include a new edition of a previously published 
history, if such new edition contains a substantial account of new and 
valuable matter, and if it also fulfils the other requirements of the act. 
The purchase of copies by the Commonwealth is in every case within 
the control of the governor and council and the secretary, who are to 
determine whether the history in question fulfils all the requirements 
of the act, without which the purchase is uot to be made. 
Very respectfully, your obedient servant, 

A. E. Pillsbury, Attorney -General. 



[A label or trade-mark may be filed and recorded under ch. 443 of 
1893, notwithstanding it consists of several words or devices on 
separate pieces of paper, or is described as a " label and trade- 
mark." Rules, regulations and forms prescribed by Secretary 
under sec 6 relate only to the filing, and not to the form of label, 
etc. Duty of Secretary to see that label etc. as presented is not in 
such form as to be mistaken for one previously recorded. Rights 
of parties as to the form of labels etc. to be determined by the 
courts.] 

Attorney-Geneeal's Department, 
Boston, Dec 20, 1893. 

Hon. William M. Olin, Secretary. 

Sir : — I have your request to be advised, upon an application for 
filing certain labels or trade-marks, under chapter 443 of the Acts of 
1893, whether, in the case of a label or trade-mark consisting of two 
or more distinct parts, on separate pieces of paper, each part must be 
treated as a separate label or trade-mark, and whether a paper de- 
scribed by the applicant as a " label and trade-mark " should under 
the law be described either as a label or as a trade-mark and not as 
both. 

1. In my opinion the secretary of the Commonwealth has neither 
the duty nor the power to prescribe, nor, with a single exception men- 
tioned below, to interfere with the form of the label or trade-mark 
itself. He is to take it as presented by the applicant, who must take 
the risk of filing the labels, etc., in such form as may be proper and 
sufficient in the judgment of the courts, which must eventually deter- 
mine the matter if any question is raised, to secure the protection of 
the law. The applicant may have a right to treat a combination of 
several words or devices on separate pieces of paper, to be affixed to 
one bottle, box or package, as one label or trade-mark, although the 



42 ATTORNEY-GENERAL'S REPORT. [Jan. 

word or device on either piece of paper by itself might be incapable 
of forming a valid label or trade-mark under the law. It must be 
left to the courts to determine such rights. The secretary can neither 
enlarge nor abridge them by any rule or regulation of his office. The 
rules, regulations and forms which the secretary is authorized by sec- 
tiou (5 to prescribe are only "for the filing" of the labels, trade- 
marks, etc., and canuot extend so far as to interfere with or control, 
the form of the labels, etc., themselves as the parties choose to pre- 
sent them. The duty of the secretary appears to be only to see that 
such rules, regulations and forms as he may prescribe " for the tiling " 
are complied with, and that the label, trademark or advertisement 
offered for filing conforms to all the requirements of section 4. 

The exception above referred to is this : By the last clause of sec- 
tion 4 it is clearly the duty of the secretary to pass upon the question 
whether the label, trade-mark or advertisement offered for record 
might reasonably be mistaken for one previously recorded. This 
question he must determine in the first instance, leaving the applicant, 
if aggrieved by his decision, to such remedy as the courts may afford. 

The statute appears to be similar in some respects to the patent 
laws of the United States ; under which an applicant files such descrip- 
tion, specifications, etc., as he chooses, and the courts eventually de- 
termine, as they must here, whether and how far he has secured the 
protection of the law. 

2. As to the second question, in my opinion the secretary cannot 
assume that the same paper may not properly be described as both 
a label and trade-mark, nor require it to be described either as the 
one or the other, if the applicant chooses to describe it as both, as he 
may have a right to do under the law. 

Very respectfully, your obedient servant, 

A. E. Pillsbcry, Attorney- General. 



[Metropolitan Park Commission. Expenses specified in sees. 1 and 2 
of ch. 407 of 1893 may be appropriated under that Act, and are to 
be charged upon the fund of $1,000,000 thereby provided.] 

Attorn et-G en e uai.'s ] ) epartm ent, 
Boston, Dec. 21, 1893. 
Hon. John W. Kimball, Auditor. 

Sir : — In reply to your request for my opinion whether an appro- 
priation is authorized by chapter 407 of the Acts of 1893 for the 
salaries, office expenses and travelling expenses of the Metropolitan 
Park Commission for the ensuing year, estimated at $10,000 ; and if 
so, whether it is to be paid from the loan of $1,000,000 authorized by 
that act, or from other funds in the treasury, I have to say that if the 



1894.] PUBLIC DOCUMENT — No. 12. 43 

estimate includes only such expenses as are expressly allowed by 
sections one and two, it is authorized by the act, and is to be charged 
upon the fund of $1,000,000 thereby provided. It is, of course, 
within the power of the legislature to make a special appropriation 
for the purpose, but the fund of $1 ,000,000 is expressly provided " to 
meet the expenses incurred under the provisions of this act," of 
which the expenses of the commission are a part ; and other pro- 
visions of the act have some tendency to indicate the intention of 
the legislature that tbey should be charged upon this fund. A like 
provision in other recent legislation of similar character has received 
the same construction. The fact that these expenses were met by 
special appropriation last year has, under the circumstances, no ten- 
dency to indicate a purpose of the legislature that they are not to be 
charged upon the general fund. The special appropriation of last 
year covered all purposes for which money was required under the 
act, and was undoubtedly made only for the reason that the general 
fund had not then become available. 

Very respectfully, your obedient servant, 

A. E. Pillsbury, Attorney -General. 



[Under the Civil Service Act, the rules may be niade to include per- 
sons doing ordinary clerical work by the piece or quantity Pres- 
ent rules may be construed to include such case if an attempt 
to evade the law. J 

Attorney-General's Department. 
Boston, Dec. 22, 1893. 
To the Civil Service Commissioners. 

Gentlemen : — I have your request for my opinion whether a clerk 
in the water income department of Boston, whose duty is to make out 
and mail bills for water rates for a compensation of one cent each, 
agreed on with the head of the department, by which he earns about 
three dollars per day, is within the classified service, or whether the 
agreement for his services and the manner of compensation take the 
case out of the Civil Service Act and the rules. 

As to your suggestion of the claim that "the personal service 
rendered by the clerk under an agreement to pay by the piece, is not 
an employment, within the meaning of the Civil Service Act and 
rules, but a contract engagement outside of the rules," I do not think 
such a distinction between an "employment" and a "contract 
engagement" can be maintained, at least in the present case. I have 
already said or intimated to the Commissioners that in my opinion a 
case which the law intends to include is not to be taken out of it, nor 
taken from the class in which it belongs and put into another, merely 



44 ATTORXEY-GENERAL'S REPORT. [Jan. 

by the form under which the person may be selected or engaged for 
the service, especially if such form is adopted for the purpose of 
evading the law. The position of this clerk is a position of employ- 
ment, in the sense of the statute, and the precise form of the contract 
of employment is immaterial. The case turns on the question 
whether a person working by the piece, whose compensation depends 
on the amount of work done, as distinguished from one who receives 
a fixed salary or compensation measured by time, is within the 
operation of the system. 

I see no reason to doubt that the statute is broad enough to cover 
such cases, or that under it the rules may be extended, with the ex- 
ceptions expressed in section 15, to all positions required to be filled 
by appointment, and all positions of employment, for labor or other 
service. The express exception of certain cases indicates the purpose 
of the legislature to include all which are not so excepted. 

But the statute also provides that the rules may be made from 
time to time, and may be given a general or limited application ; and 
the question here is whether the present rules extend far enough to 
include this case ; and this depends on the question whether the clerk 
is included within the description of Schedule A, class one or class 
two, as a " person whose annual compensation is at a rate less than 
$800" or "a person whose annual compensation is at the rate of 
$800 and over." 

This description might be construed to include a person regularly 
working by the piece, at least if his annual compensation could be so 
nearly determined beforehand as to make it certain whether he belongs 
in class one or class two ; and in a case of palpable evasion or attempt 
to evade the rules, perhaps it ought to be so construed. But I am 
informed that the rules have not heretofore been generally understood 
as extending to persons working by the piece or quantity ; and as it 
is within the power of the Commissioners to so extend them, if 
necessary or expedient, by an amendment, making it clear not only 
that such cases are included but so defining them that there will be 
no difficulty in applying the rules to any particular case and no room 
for evasion, I think it is better to bring them within the system in 
this way if at all, rather than by a construction of the present rules 
which might be regarded as doubtful. 

I conclude, therefore, that unless the Commissioners are satisfied 
that the form of employment in this case is in fact an attempt to 
evade the law, it should not be treated as within the present rules. 
Very respectfully, your obedient servant. 

A. E. Pillsbuky, Attorney- General. 



1894.] PUBLIC DOCUMENT — No. 12. 45 



[It is lawful to modify the Massachusetts Standard Policy by the 
addition, in the manner prescribed in the seventh excepting 
clause of section 60 of the Insurance Act, of provisions differing 
from the standard form ; but a policy so modified ceases to be and 
is not to be called the Massachusetts Standard Policy,] 

Attorney-General's Department, 
Boston, Dec. 23, 1893. 

Hon. George S. Merrill, Insurance Commissioner. 

Sir : — Mr. Atkinson's inquiry whether it is permissible to modify 
the Massachusetts Standard fire insurance policy by the addition of a 
signed slip insuring against fire occasioned by riot or civil commotion, 
upon which you request my opinion, appears to be substantially 
covered by the opinion which I gave you under date of December 18, 
1891 ; and much that was there said need not be repeated. 

It is clear that under the seventh excepting clause of section 60 of 
the Insurance Act of 1887, additions to or modifications of the Stan- 
dard Policy may be made, by a signed slip or rider or otherwise as 
therein prescribed ; and I see no reason to doubt that this permits the 
addition of a provision insuring against fire originating in riot or 
civil commotion. The obvious and only purpose of this clause is to 
authorize the insertion in fire policies of provisions more or less incon- 
sistent with those of the standard form. But the policy so modified 
ceases to be the Massachusetts Standard Policy, and is not to be so 
designated. 

The purpose and effect of the legislation concerning the Standard 
Policy, as now embodied in section 60, is to establish a standard form 
as therein set out, to be known as the Massachusetts Standard Pol- 
icy, which shall contain nothing more nor less than the statutory 
form includes, except as permitted by the first five excepting clauses 
of that section. The addition of anything permitted by these five 
clauses still leaves it the Massachusetts Standard Policy, and by the 
express provision of the sixth clause it may be so called. The 
seventh excepting clause is designed to permit such other modifica- 
tions of the standard form as may be permissible on general princi- 
ples of law ; but the modifications must be made in the manner 
therein prescribed, and a policy so modified is not and is not to be 
described as the Massachusetts Standard Policy. 

Very respectfully, your obedient servant, 

A. E. Pillsbury, Attorney- General. 



46 ATTORNEY-GENERAL'S REPORT. [Jan. 



[Acceptance of Statute by Corporation. Provision of Statute passed 
March 26, 1891, that it shall take effect April 14, 1891, if accepted 
by the Corporation, is an implied limitation of the time for accept, 
ance, and an acceptance voted by the Corporation Oct. 14, 1892, 

is ineffectual ] 

Attouney-Geneiial's Department, 
Boston, Jan. 4, 1894. 
Hon. William M. Olin, Secretary. 

Sir: — I have your request to be advised whether chapter 118 of 
the Acts of 1891, approved March 26th, 1891, amendiugthe charter 
of the Worcester Natural History Society, took effect upon its accept- 
ance by the Society, at a meeting held October 14th, 1892, and has 
become a law by virtue of such acceptance ; section 3 of the act 
providing that '' this act shall take effect on the 14th day of April in 
the year 1891, provided that a majority of the members of said 
association present and voting thereon at a meeting duly called for 
the purpose shall vote to accept its provisions." As the question 
may be of importance to the Society I sent them notice of your 
request, to which they have made no response. 

The question is whether this section raises an implied limitation of 
the time within which the act could be effectually accepted and take 
effect. In view of the familiar rule that a statutory grant is to be 
construed strictly as against the grantee, and of the doubts and dif- 
ficulties which might arise if, under such a provision, it should be 
considered that the act could be accepted at any time after its passage, 
at the convenience of the corporation, I think it must be held that 
section 3 had the effect to limit the time within which the act could be 
accepted to April 14th, 1891 ; and that the acceptance voted by the 
corporation October 14th, 1892, was ineffectual, and therefore that 
the act has never taken effect and is not in force as a law. 

The form of this provision is objectionable, as opening the way to 
uncertainty which can easily be avoided by prescribing definitely in 
the statute the time within which it shall be accepted, if at all, which 
is usually done in recent legislation of this character. It ought not 
to be left in doubt for a long period whether an act of the legislature 
has taken effect as a law. Chapter 100 of the Acts of 1883 is in- 
tended to prevent this result, and it indicates the policy of the legis- 
lature to prevent it; and I think it tends to confirm my conclusion in 
the present case. 

Very respectfully, your obedient servant, 

A. E. Pillsbuiiy, Attorney-General. 



1894.] PUBLIC DOCUMENT — No. 12. 47 



APPEALS, EXCEPTIONS AND REPORTS 

In Criminal Cases in Charge of this Department 
For the Year Ending January 16, 1894. 



Barnstable County. 

Commonwealth v. Sylvanus S. Dill and Lucinda Higgins (two cases). 
Indictment for lewd and lascivious cohabitation under Pub. 
Sts., c. 207, § 6. Exceptions to rulings and evidence. Over- 
ruled. Motion in arrest. Denied. Appeal to full court. Order 
affirmed. 

Middlesex County. 

Commonwealth v. Henry C Brothers. Illegal sales of intoxicating 
liquor. Exceptions to rulings. Overruled. 

Commonwealth v. Leslie E. De Voe. Negotiating sales of land on 
the Lord's Day. Exceptions to rulings. Overruled. 

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

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

Commonwealth v. William McKenna. Exposing and keeping intox- 
icating liquor for sale. Exceptions to rulings and evidence. 
Overruled. 

Norfolk County. 

Commonwealth v. John Colligau. Assault on an officer. Exceptions 
to rulings. Overruled. 

Commonwealth v. Thomas F. Sheedy. Lottery. Exceptions to 
rulings. Sustained. 

Suffolk County. 

Commonwealth v. Charles W. Bingham. Forgery of a deed. Excep- 
tions to evidence and rulings. Overruled. 

Commonwealth v. Samuel F. Brown (two cases). Exposing and 
keeping intoxicating liquor for sale. Exceptions to rulings. 
Defaulted. Appeal from order denying motion in arrest. Order 
affirmed. 



48 ATTORNEY-GENERAL'S REPORT. [Jan. 

Commonwealth v. Patrick Canny. Exposing intoxicating liquor with 
intent to sell. Exceptions to rulings. Overruled. 

Commonwealth v. Sidney S. Kelley. Sale of oleomargarine in viola- 
tion of St. 1891, c. 58, § 1. Exceptions to rulings. Pending. 

Commonwealth v. James Lowrey. Motion in arrest. Appeal. 
Motion in arrest overruled, and judgment of conviction affirmed. 

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

Commonwealth v. John Stewart. Furnishing butterine to a guest at 
a hotel without notice. Exceptions to rulings. Overruled. 

Commonwealth v. Sophia C. Thompson. Abortion. Exceptions to 
rulings and evidence. Overruled. 

Commonwealth v. Alexander Byrnes. Exposing oleomargarine for 
sale in imitation of butter in violation of St. 1891, c. 53, §1. 
Report. Verdict set aside. 

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. Verdict 
to stand. 

Commonwealth v. John "W. Gordon. Sale of adulterated milk in 
violation of Pub. Sts., c. 57, §5. Exceptions to rulings. Over- 
ruled. 



1894.] PUBLIC DOCUMENT -No. 12. 49 



APPEALS, EXCEPTIONS AND REPORTS 

In Criminal Cases in Charge of the District Attorneys, 

Under the Provisions of St. 1893, C. 345, 
Fon the Year ending January lfi, 1894. 



Berkshire County. 

Commonwealth v. John W. Reed. Sales of cider contrary to law. 
Exceptions to rulings. Pending. 

Bristol County. 

Commonwealth v. Sewell P. Ellis. Non-support of minor child. 
Exceptions to rulings. Overruled. 

Commonwealths. Telesphore Vigneault. Liquor nuisance. Excep- 
tions to rulings. Waived. 

• Essex County. 
Commonwealth v. Marshall H. Abbot. Failure to connect buildings 
with the public sewer. Report. Pending. 

Commonwealth v. Michael Ahearn. Unlawful keeping of intoxicat- 
ing liquor. Exceptions. Pending. 

Commonwealth v. Thomas F. Brennan. Unlawful keeping of in- 
toxicating liquor. Exceptions. Overruled. 

Commonwealth v. Mary Francis. Larceny. Exceptions. Pending. 

Commonwealth v. James P. Lynch. Liquor nuisance. Report. 
Pending. 

Commonwealth v. Robert T. Lyons. Liquor nuisance. Exceptions. 
Overruled. 

Commonwealth v. Mary E. Mead. Embezzlement. Exceptions. 
Pending. 

Commonwealth v. Edward Ryan. Unlawful keeping of intoxicating 
liquor. Overruled. 

Hampden County. 

Commonwealth v. Harrison Crowell. Liquor nuisance. Exceptions 
waived. 



50 ATTORNEY-GENERAL'S REPORT. [Jan. 

Commonwealth v. Pardon H. Derby. Obstructing sidewalk in viola- 
tion of city ordinance. Pending. 

Commonwealth v. Frank 8. Gardner. Cruelty to animals. Excep- 
tions waived. 

Middlesex County. 

Commonwealth v. Edward Brelsford. Liquor nuisance. Exceptions 
to rulings. Not yet heard. 

Commonwealth v. Michael J. Early (three cases) : (1) Liquor nui- 
sance. Exceptions to evidence and rulings. Not yet heard. 
(2) Liquor keeping with intent to sell. Exceptions to evidence 
and rulings. Not yet heard. (3) Liquor selling. Exceptions 
to evidence and rulings. Not yet heard. 

Commonwealth v. John, alias Skip Farrell. Felonious assault. Ex- 
ceptions to rulings. Not yet heard. 

Commonwealth v. Thomas II. Gavin. Liquor nuisance. Exceptions 
to rulings. Not yet heard. 

Commonwealth v. Henry M. Leach. Procuring abortion. Excep- 
tions to evidence and rulings. Not yet heard. 

Commonwealth v. Joseph Logue. Embezzlement. Exceptions to 
rulings. Not yet heard. 

Commonwealth v. James McDonald and Peter E. Finnegan. Liquor 
nuisance. Exceptions to rulings. Not yet heard. 

Commonwealth v. Edward T. McManus. Illegal keeping of intoxi- 
cating liquor for sale. Exceptions to evidence. Not yet heard. 

Commonwealth v. William T. Murphy. Liquor nuisance. Excep- 
tions to evidence. Not yet heard. 

Commonwealth v. Michael J. O'Boyle. Assault and battery. Excep- 
tions to ridings. Not yet heard. 

Commonwealth v. John Rogers. Exposing and keeping intoxicating 
liquor for sale. Exceptions waived. 

Commonwealth v. Lizzie Sullivan. Larceny. Exceptions to rulings 
and to evidence. Not yet heard. 

Commonwealth v. Matthew Travers, alias Miah Shorter, alias Rever- 
end Felix Lomax. Cheating. Exceptions to rulings and evi- 
dence. Not yet heard. 

Norfolk Count y. 

Commonwealth v. Martin Healey. Illegal keeping of intoxicating 
lit I nor. Exceptions to evidence. Pending. 

Plymouth County. 

Commonwealth v. Walter L. Gilbert. Violation of trout law. 
Report. Judgment affirmed. 

Commonwealth v. Auastase Goulet. Illegal keeping of intoxicating 
liquor. Exceptions to rulings. Report. Pending. 



1894.] PUBLIC DOCUMENT — No. 12. 51 

Commonwealth v. James Tobin. Liquor nuisance. Exceptions to 
evidence. Overruled. 

Commonwealth v. Catharine Vincent. Illegal keeping of intoxicating 
liquor. Appeal from order overruling motion to dismiss. 
Pending. 

Suffolk County. 

Commonwealth v. Charles C. Adams. Being present where gaming 
implements were found. Exceptions. Pending. 

Commonwealth v. Rufus L. Dill. Commission of an unnatural 
offence. Appeal. Pending. 

Commonwealth v. Rosa Doherty. Liquor nuisance. Exceptions to 
evidence and rulings. Waived. 

Commonwealth v. Luigi Guecco. Assault with intent to murder. 
Appeal waived. 

Commonwealth v. Terrance F. Kennedy. Boarding vessel without a 
license. Exceptions to rulings. Overruled. 

Commonwealth v. Russ. G. Mellville. Retailing drugs not being a 
registered pharmacist. Exceptions to rulings. Judgment 
affirmed. 

Commonwealth v. Alfred Swain. Registering bets. Exceptions 
overruled. 

Commonwealth v. Hannah Troy. Keeping and exposing intoxicating 
liquor for sale. Exceptious to rulings. Waived. 

Worcester County. 

Commonwealth v. John T. Fitzpatrick. Keeping liquor with intent 
to sell. Exceptions to evidence. Overruled. 

Commonwealth v. Patrick H. Hurley. Illegal keeping of intoxicat- 
ing liquor. Exceptions to rulings. Overruled. 

Commonwealth v. John Neylou. Keeping liquor with intent to sell. 
Exceptions to evidence. Overruled. 

Commonwealth v. Frank H. Roberts. Neglect to send child to 
school. Exceptions to exclusion of evidence involving con- 
struction and constitutionality of statute. Exceptions sus- 
tained. 

Commonwealth v. William S. Russell. Unlawful keeping of intoxi- 
cating liquors. Exceptions to evidence. Overruled. 

Commonwealth v. Michael J. Shea. Unlawful keeping of intoxicat- 
ing liquor with intent to sell. Overruled. 



52 



ATTORNEY-GENERAL'S REPORT. 



[J, 



Table showing the number of Criminal Cases pending on Questions of 
Law in the Supreme Judicial Court during the Year ending Jan. 
16, 1894, arid the Disposition thereof by Counties. 



COUNTIES. 


o 

a 

a 

to 


8 

,2 * 

■§ g 
1 a 




1 i 
a I 

"5 a 

•S a 

•a o 


> 
1 


■3 
c 


Barnstable, 














1 


l 


- 


- 


- 


Berkshire, 














1 


- 


- 


- 


1 


Bristol, . 














2 


1 


- 


1 


- 


Essex, . 














8 


3 


- 


- 


5 


Hampden, 














3 


- 


- 


2 


1 


Middlesex, 














20 


5 


- 


- 


15 


Norfolk, 














3 


1 


1 


- 


1 


Plymouth, 














4 


2 


- 


- 


2 


Suffolk, . 














19 


9 


1 


3 


6 


Worcester, 














6 


5 


1 


- 


- 
















67 


27 


3 


6 


31 



1894.] 



PUBLIC DOCUMENT — No. 12. 



53 



Table showing the Number and Character of Criminal Cases pending 
on Questions of Law in the Supreme Judicial Court during the Tear 
ending Jan. 16, 1894, and the Disposition thereof. 



OFFENCES. 



Abortion, ........ 

Assault and battery, 

Assault on officer, 

Assault with intent to murder, . 

Being present where gaming implements were 

found, 

Boarding vessel without a license, 

Breaking and entering with intent to commit 

larceny, 

Butterine, furnishing to guest without notice, 

Cheating, 

Cider, unlawful sale of, 

Cruelty to animals, 

Embezzlement, 

Failure to connect house with sewer, 

Felonious assault, 

Forgery of deed, 

Intoxicating liquor, exposing and keeping, . 
nuisance, . 

sales of, 

transportation of, illegally, . 
Larceny, ....... 

Lewd and lascivious cohabitation, .... 

Lord's Day, violation of, 

Lottery, 

Milk, sale of adulterated, 

Neglecting to send child to school, 

Non-support of minor child, 

Obstructing sidewalk, 

Oleomargarine, exposing for sale, .... 
omission of signs, .... 
sale of , . 

Registering bets, 

Retailing drugs, not being registered pharmacist, 
Trout law, violation of, . 
Unnatural crime, commission of, . 



07 



1 




1 


- 


1 


- 


11 


_ 


2 


- 


1 


_ 


1 


_ 


1 


_ 


1 


_ 


1 


- 


- 


1 


1 


_ 


- 


1 


1 


- 


_ 


1 


1 


— 


1 


- 


27 


3 



- 2 



54 ATTORNEY-GENERAL'S REPORT. [Jan. 



INFORMATIONS EX-OFFICIO. 



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. Petition dismissed. 

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. 



1894.] PUBLIC DOCUMENT — No. 12. 55 



INFOKMATIONS. 



1. At the Relation of the Treasurer and Receiver-Gen- 
eral. 

(a.) For the non-payment of corporation taxes for the year 1892 
were brought against the — 

Beacon Cycle Manufacturing Company. Tax paid and information 
dismissed. 

Brookfleld Brick Company. Tax paid and information dismissed. 

Burt Chace Company. Enjoined. 

C. W. Mutell Manufacturing Company. Tax paid and information 

dismissed. 

Chelsea Wire Fabric Rubber Company. Tax paid and information 

dismissed. 

Choate Drug and Chemical Company. Tax paid and information 
dismissed. 

Commonwealth Jewelry Company. Tax paid and information dis- 
missed. 

Commonwealth Publishing Company. Tax paid and information dis- 
missed. 

Edwards Grain Company. Tax paid and information dismissed. 

Engraver & Printer Company. Tax paid and information dis- 
missed. 

H. A. Williams Manufacturing Company. Tax paid and informa- 
tion dismissed. 

Hull Street Railroad Company. Pending. 

J. G. Cupples Company. Tax paid and information dismissed. 

Jamesville Manufacturing Company. Tax paid and information dis- 
missed. 

Lamprey Boiler Furnace Mouth, etc. Company. Tax paid and in- 
formation dismissed. 

Leach & Grant Company. Enjoined. 

Little Giant Hussar Wrecking Company. Enjoined. 

Lynn Press Publishing Company. Tax paid and information dis- 
missed. 



56 ATTORNEY-GENERAL'S REPORT. [Jan. 

Neograph Publishing Company. Tax paid and information dis- 
missed. 

New York & Boston Inland Railroad Company. Tax paid and infor- 
mation dismissed. 

Old Spain Co-operative Society. Tax paid and information dis- 
missed. 

Owen Paper Company. Company in insolvency. Claim proved. 
Pending. 

Quaboag Steamboat Company. Tax paid and information dis- 
missed. 

Security Associates. Pending. 

Traveller Publishing Company. Tax paid and information dis- 
missed. 

W. M. Colby Company. Tax paid and information dismissed. 

West End Supply Company. Tax paid and information dismissed. 

(b.) For the failure to file the returns required by Pub. Sts., c. 
13, § 38, were brought against the — 

Andover Co-operative Creamery Association. Return filed. Infor- 
mation dismissed. 

Atherton Machine Company. Return filed. Information dismissed. 

Austin Bros. Company. Return filed. Information dismissed. 

Beacon Cycle Manufacturing Company. Pending. 

Border City Hotel Company. Return filed. Information dismissed. 

Boston Co-operative Company. Return filed. Information dis- 
missed. 

Boston Last Manufacturing Company. Pending. 

Brookfield Brick Company. Return filed. Information dismissed. 

Bufford Sons Lithographic Company. Enjoined. 

Choate Drug and Chemical Company. Return filed. Information 
dismissed. 

Columbia Trust Company. Return filed. Information dismissed. 

Commercial Pottery Company. Pending. 

Consolidated Folding Bed Company. Pending. 

Dorchester Chemical Company. Enjoined. Return filed. Informa- 
tion dismissed 

Dunbar Mills Company. Return filed. Information dismissed. 

Fall River Lithograph Company. Return filed. Information dis- 
missed. 

Fred X. Allen Company. Return filed. Information dismissed. 

Gardner Gas Light Company. Pending. 



1894.] . PUBLIC DOCUMENT — No. 12. 57 

Haydenville Manufacturing Company. Return filed. Information 
dismissed. 

Henry Woods Company. Return filed. Information dismissed. 

Hingbam Dairy Association. Return filed. Information dismissed. 

Hopkinton Electric Compamy. Enjoined. 

Imperial Metal Card Company. Enjoined. 

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

Leach & Grant Company. Return filed. Information dismissed. 

Light Publishing Company. Pending. 

Little Giant Hussar Wrecking Company. Enjoined. 

Lynn Press Publishing Company. Return filed. Information dis- 
missed. 

Maiden & Melrose Railroad Company. Return filed. Information 
dismissed. 

Mayall Rubber Company. Return filed. Information dismissed. 

Merrimac Electric Company. Enjoined. 

Mitchell Fish Company. Pending. 

Morse Manufacturing Company. Enjoined. 

Nantucket Electric Street Railroad Company. Enjoined. 

People's Steamboat Company. Return filed. Information dismissed. 

Quaboag Steamboat Company. Return filed. Information dismissed. 

Robinson Printing Company. Return filed. Information dismissed. 

Salem Press Publishing and Printing Company. Enjoined. 

Suffolk Iron Works. Return filed. Information dismissed. 

Thorp & Adams Manufacturing Company. Return filed. Informa- 
tion dismissed. 

Thorp & Martin Manufacturing Company. Return filed. Informa- 
tion dismissed. 

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

West Lynn Trust Company. Return filed. Information dismissed. 

Winthrop Gas and Electric Company. Enjoined. 

Woburn Power Company. Return filed. Information dismissed. 

(c.) At the relation of the Commissioner of Foreign Mortgage 
Corporation, against the — 

Lombard Investment Company to restrain it from the further trans- 
action of business in this State. Pending. Before the cause 
came to a hearing receivers were appointed in another State, and 
the company ceased to do business in this State. 



58 ATTORNEY-GENERAL'S REPORT. [Jan. 

(cL) At the relation of the Commissioner of Corporations, against 
the — 

Stonemetz Printers' Machinery Company. Failure to file return re- 
quired by Pub. Sts., c. 106, §54. Return filed and information 
dismissed. 

Woburn Electric Light Company. Same as preceding. Return filed 
and information dismissed. 

(e.) At the relation of Private Persons : — 

Attorney-General ex rel. Arthur Whittaker et al. v. New York & New 
England Railroad Company. Bill to restrain the obstruction of 
a way in Needham. Heard and use, of name granted. 

Attorney-General ex rel. the City of Cambridge v. Asa P. Morse. 
Information in equity. Heard and use of name granted. 

Writ of Error. 
Emory E. Lane v. Commonwealth. To Superior court. Pending. 



1894.] PUBLIC DOCUMENT — No. 12. 59 



GRADE CROSSINGS. 



Since the date of the last annual report notice has been served upon 
the Attorney-General 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 : — 

Hampden County. 

Springfield, Pasco Road, Directors of the Boston & Albany Railroad 
Company, petitioners. Pending. 

Middlesex County. 

Lowell, Mayor and aldermen of, petitioners. Pawtucket and Church 
streets. Pending. 

Norfolk County. 

Dedhain, Directors of Old Colony Railroad Company, petitioners. 
Decree. 

Worcester County. 

Northbridge, Selectmen of, petitioners (two petitions). Pending. 

Millbnry, Selectmen of, petitioners. Pending. 

Uxbridge, Directors of New York, New Haven & Hartford Railroad 
Company, as lessees of the Providence and Worcester Railroad 
Company, petitioners. 

Worcester, Mayor and aldermen of, petitioners. Hamilton and Mill 
Brook streets. Pending. 



60 



ATTORNEY-GENERAL'S REPORT. 



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1894.] PUBLIC DOCUMENT — No. 12. 03 

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

A. C. White Coal Company. 

Adamanta Manufacturing Company. 

Allston Boot and Shoe Company. 

Athol Reed and Rattan Company. 

Boston Ice Company. 

Boston Macaroni Manufacturing Company. 

Cambridge Safety Vaults Company. 

Central Tow Boat Company. 

Ellenville Tanning Company. 

Elliot Hickory Cycle Company. 

Essex County Masonic Mutual Relief Association. 

Farren Hotel Company. 

F. P. Baker Moulding Manufacturing Company. 

Hub Cement Company. 

J. C. Cupples Company. 

Johnson Leather Coat Company. 

Lincoln Hall Association. 

Lynn Co-operative Supply Company. 

Metropolitan Cab Company. 

Milford Springs Company. 

National Tube Works Company. 

Noyes Lumber Drying Company. 

Plymouth Lapboard Company. 

Readville Rubber Company. 

Robert M. Diaz Company. 

S. A. Beals Company. 

Springfield Collar Company. 

Tabernacle Young Men's Institute. 

Walpole Woolen Mills. 

White field Mills. 

Whitinsville Street Railroad Company. 



64 ATTORNEY-GENERAL'S REPORT. [Jan. 

The following corporations reported by the Tax Commissioner as 
delinquent in making their tax returns under Public Statutes, chapter 
13, section 38, have since their reference to this department complied 
with the law : — 

A. M. Gardner Hardware Company. 
Advertiser Newspaper Company. 
Allerton Building Company. 

Alpha Co-operative Manufacturing Company, The. 
Andover Co-operative Creamery Association. 
Atherton Machine Company. 
Austin Brothers Company. 

B. F. Sturtevant Company, The. 
Barnaby Manufacturing Company. 
Bartlett Automatic Elevator Gate Company. 
Bed Rock Emery Wheel Company. 
Beverly Farms Boot and Shoe Company. 
Border City Hotel Company. 

Boston Advertising Company. 

Boston Base Ball Association. 

Boston Coffee and Cereal Manufacturing Company. 

Boston Co-operative Company. 

Boston Cordage Company. 

Boston Cyclorama Company. 

Boston Ice Company, The. 

Boston Ice Company, The. 

Boston Lighterage and Towing Company. 

Boston Macaroni Manufacturing Company. 

Boston Wool Company. 

Brockton Publishing Company. 

Brookfield Brick Company. 

Brophy Brothers Shoe Company. 

Brown Hotel Company. 

Bunker Hill Furniture Company. 

C. A. Edgarton Manufacturing Company. 
Cape Ann Granite Company. 

Casino Art Company. 
Chelsea Cordage Company. 



1894.] PUBLIC DOCUMENT — No. 12. H5 

Chelsea Odd Felloes' Hall. 

Chisel Edge Nut Lock Company. 

Choate Drug and Chemical Company. 

Citizens' Steam and Gas Light Company of Lynn. 

Clark W. Bryan Company, The. 

Coburn' Shuttle Company. 

Cockrane Carpet Company. 

Columbia Trust Company. 

Commercial Union Telegraph Company. 

Commonwealth Publishing Company. 

Cornelius Callahan Company. 

Criterion Knitting Company. 

D. C. Storr Furniture Company. 

Dunbar Mills Company. 

Duncan Leather Manufacturing Company. 

Eagle Mill Company. 

East Boston Furniture Company. 

East Cambridge Land Company. 
Educational Supply Company. 

Elliot Falls Electric Light Company. 

Ellerton Fishing Corporation. 

Emerson Low and Barber Company. 

Engraver and Printer Company Corporation. 

Equitable Water Meter Company. 

Fairchild Paper Company. 

Fall River Lithograph Company. 

Fall River Loan and Trust Company. 

Fall River Merino Company. 

Fall River Mill Supply Company. 

Fall River Spool and Bobbin Company. 

Falmouth Local Publishing and Printing Company. 

Frankton Mills. 

Fred H. Allen Company. 

Globe Worsted Mills. 

Goddard Machine Company. 

Granite Trust Company. 

H. A. Lathrop Manufacturing Company. 

Hare Commercial College, incorporated. 



66 ATTORNEY-GENERAL'S REPORT. [Jj 

Hall Type Writer Company. 

Hancock Inspirator Company. 

Haverhill & Amesbury Street Railway Company. 

Haverhill Gazette Company. 

Haverhill Ice Company. 

Haverhill Paper Company. 

Haverhill Roller Toboggan Company. 

Haydenville Manufacturing Company. 

Henry Wood's Sons Company. 

Hingham Dairy Association. 

Holyoke Bar Company. 

Horn Pond Branch Railroad Company. 

Hub Cement Company. 

Hull Street Railway Company. 

Hunt Manufacturing Company. 

Hunt Spillar Manufacturing Company. 

J. B. Parker Machine Company. 

J. C. Lockett Crimping Machine Company. 

J. G. Cupples Company. 

J. H. Conant Company. 

J. L. & T. D. Peck Manufacturing Company. 

James Hunter Machine Company. 

James Russell Boiler Works Company. 

Jewett Lumber Company. 

John Pilling Shoe Company. 

Keating Wheel Company. 

Knott Refrigerator, Limited. 

Knowles Freeman Fish Company. 

L. A. May Company. 

Lancaster Water Company. 

Leach & Grant Company. 

Leonard Perkins & Pierce Company. 

Liberty Masonic Association. 

Lincoln Hall Association. 

Loring & Blake Organ Company. 

Lowell Co-operative Association. 

Lowell Courier Publishing Company. 

Lynn Co-operative Supply Company. 



PUBLIC DOCUMENT — No. 12. 67 

Lynn Express Company. 

Lynn Press Publishing Company. 

Maiden & Melrose Railroad Company. 

Manufacturers Gas Light Company. 

Mason Regulator Company. 

Massachusetts Dredging Company. 

Mayall Rubber Company. 

Metropolitan Cab Company. 

Middleby Oven Company. 

Middlesex Land Company. 

Milford Pink Granite Company. 

Milbury Electric Company 

Morgan Construction Company 

Morley Paper Company. 

Mt. Tom Sulphite Pulp Company. 

Mt. Washington Glass Company. 

Murray Bros. Company. 

Nantucket Electric Light Company. 

National Fireworks Company. 

National Laundry Company. 

National Papeterie Company. 

New Bedford Cordage Company. 

New England Morocco Works Company. 

New England Provision and Grocery Company. 

Norton lion Company. 

Oriental Coal Oil Company. 

Osborn Mills. 

People's Steamboat Company. 

People's Street Railway Company. 

Pidgeon Hill Granite Company. 

Plymouth County Railroad Company. 

Prudential Fire Insurance Company. 

Quincy Market Cold Storage Company. 

Quiucy Water Company. 

Raymond Skate Company. 

Reading Water Company. 

Revere Water Company. 

Robinson Printing Company. 



68 ATTORNEY-GENERAL'S REPORT. [Jan. 

Rodney Hunt Machine Company. 

Roxbury Central Wharf Company. 

Roxbury Real Estate Association of Boston. 

Salem, Beverly & Danvers Tow Boat Company. 

Salem Waste Company. 

South Boston Ice Company. 

South Reading Ice Company. 

South Wellfleet Cranberry Association. 

Standard Cordage Company. 

Standish Mills. 

Springfield Lumber Company. 

Strange Forged Twist Drill Company. 

Suffolk Company. 

Suffolk Iron Works. 

Syms & Dudley Paper Company. 

Taber Art Company. 

Thorp & Adams Manufacturing Compauy. 

Thorp & Martin Manufacturing Company. 

Town Neck Land Improvement Company of Sandwich. 

Trench Lamp Company. 

Union Loan and Trust Company. 

Union Maine Railroad Company. 

United States Fireworks Company. 

Villa Paint and Ornamental Company. 

W. H. Doble Company. 

Wachusett Milk Company. 

Wakefield Water Company. 

Wamesit Power Company. 

Webster Electric Company. 

West Chop Steamboat Company. 

West Lynn Trust Company. 

Western Union Telegraph Company. 

Whitman Electric Company. 

Woburn Electric Light Company. 

Woburn Power Company. 

Woodward & Brown Piano Company. 

Wrought Iron Casting Company. 



1894. J 



PUBLIC DOCUMENT — No. 12. 



69 



COLLECTIONS. 



The following table shows the collections made by this department 
during the year ending Jan. 16, 1894 : — 



Debtor. 


Corporation 
Tax for 1892. 


Interest. 


Total. 


A. L. Tribble Company, 


$520 80 


$20 83 


$541 63 


A M. Gardner Hardware Company, 


818 40 


24 00 


842 40 


American Confectionery Company, 


37 20 


1 00 


38 20 


Attleborougli etc. Street Railroad Company, 


1,182 96 


41 40 


1,224 36 


Beacon Cycle Manufacturing Company, 


2,648 64 


190 70 


2,839 34 


Black Rocks & Salisbury Street Railroad Com- 


1,136 83 


32 21 


1,169 04 


Blair Camera Company, 


3,434 30 


100 74 


3,535 04 


Boston Advertising Company, .... 


59 52 


1 97 


61 49 


Brookrield Brick Company, 


113 09 


8 48 


121 57 


C. W. Mutell Manufacturing Company, 


223 20 


15 62 


238 82 


Chelsea Express Despatch Company, . 


148 80 


5 46 


154 26 


Chelsea Wire Fabric Rubber Company, 


586 27 


35 17 


621 44 


Child Acme Cutter and Press Company, 


446 40 


11 16 


457 56 


Childs & Kent Express Company, 


334 80 


9 04 


343 84 


Choate Drug & Chemical Company, 


372 00 


42 78 


414 78 


Commonwealth Jewelry Company, 


119 04 


12 50 


131 54 


Commonwealth Publishing Company, . 


189 72 


15 68 


205 40 


Davis Company, 


169 45 


3 62 


173 07 


Engraver and Printer Company, .... 


74 40 


5 20 


79 60 


Essex Electric Street Railroad Company, 


379 44 


10 11 


389 55 


Essex Leather Company, 


90 77 


2 90 


93 67 


Evening Gazette Company 


2,008 80 


80 35 


2,089 15 


Framingham Union Street Railroad Company, . 


654 72 


19 65 


674 37 


Frank E. Sargent Company, 


595 20 


15 84 


611 04 


Franklin Educational Company, .... 


558 00 


12 28 


570 28 


Goddard Machine Company, 




61 


24 46 


H. A. Williams Manufacturing Company, . 


11 01 


1 47 


12 48 


Harvard Printing Company, 


22 32 


78 


23 10 



70 



ATTORNEY-GENERAL'S REPORT. 



[Jan. 



Corporatior 
Tax for 189 



Hull Electric Light and Power Company 

Hydraulic Manufacturing Company, . 

J. G, Cupples Company, 

Jamesville Manufacturing Company, . 

Lamprey Boiler etc. Company, 

Loring & Blake Organ Company, . 

Lynn Ice Company, .... 

Lynn Tress Publishing Company, 

Magneso Calcite Fire Proof Company, . 

Manet Street Railroad Company, . 

National Mortgage etc. Company, . 

Naumkeag Street Railroad Company, . 

Neograph Publishing Company, . 

New York and Boston Inland Railroad Company 

Newburyport Herald Company, . 

Norton Iron Company, .... 

Old Spain Co-operative Society, 

Parmenter Manufacturing Company, . 

Quaboag Steamboat Company, 

Standard Furniture Compan3 T , 

Suspension Transportation Company, . 

Thorp & Adams Manufacturing Company, 

Traveller Publishing Company, 

Villa Paint and Ornamental Company, . 

W. M. Colby Company, .... 

Wakefield Water Company, . 

Walt ham Watch Tool Company, . 

Watchman Publishing Company, . 

West Chop Steamboat Company, . 

West End Supply Company, . 

Wheelman Company, .... 

Winkle}' & Maddox Ice Company, 



$74 40 
13 39 
74 40 
736 56 
186 00 
635 38 
470 21 
223 20 
161 15 
487 30 

192 62 
4,074 89 

74 40 

71 72 

63 98 

186 00 

22 32 

1,041 60 

68 30 

744 00 

372 00 

178 56 

267 84 

31 25 

148 80 

746 98 

193 44 
446 40 

59 52 
52 08 
111 60 
223 20 



$1 94 
32 

4 24 
54 49 
11 90 

7 95 

18 80 
29 91 

5 89 
14 62 

3 56 
109 80 

4 24 
9 68 
1 60 
3 85 
1 56 

27 62 

5 12 

17 86 
9 33 
3 57 

19 10 

63 

10 41 

18 82 
5 06 

11 16 

1 61 

3 60 

2 34 

4 91 



1894.] 



PUBLIC DOCUMENT — No. 12. 



71 



MISCELLANEOUS COLLECTIONS. 



Potter Lovell Company, taxes for 1890, 

Suffolk Trust Compaq, taxes for 1891, 

Westborongh Electric Light and Power Company, 

Alta Manufacturing Company, . 

American Security and Trust Company, 

Brooks Bank Note Company, 

Hudson and Chester Granite Company, 

United States Postage Stamp Delivery Company, 

Economic Accident Insm-anee Company, 

Fraternal Association of America, 

Woburn Electric Light Company, 

Brophy Bros. Shoe Company, 

Advertiser Newspaper Company, 

Arthur Treat Company, .... 

Somerville Desk Company, .... 

Salem Waste Company, .... 

Downing Morocco Company, 

Economic Accident Insurance Company, 

Fraternal Association of America, 



Taxes, 
Costs, 



$1 



,978 67 


701 64 


25 00 


5 00 


5 00 


5 00 


5 00 


5 00 


30 00 


33 00 


5 00 


5 00 


5 00 


5 00 


5 00 


5 00 


5 00 


30 


33 



Total, 



$2,828 94 

30,544 47 

538 43 

$33,911 84 



PUBLIC CHARITABLE TRUSTS. 



Shaw Asylum for Mariners' Children. Petition for instructions. S. 
J. C, Eq., Suffolk. Notice acknowledged, and right to hear- 
ing waived. 

John J. Williams, trustee. Petition for permission to mortgage real 
estate. Probate Court, Essex. Notice acknowledged, and right 
to hearing waived. 

West Boston Society v. Attorney-General. Petition for instructions 
as to disposition of charitable funds. S. J. C, Eq., Suffolk. 
Notice acknowledged, and right to hearing waived. 



72 ATTORNEY-GENERAL'S REPORT. [Jan. 

Stephen 0. Benton et als. v. Heirs of Seth Sprague et als. Bill in 
equity for leave to sell real estate. Superior Court, Bristol. 
Notice acknowledged, and right to hearing waived. 

Quincy, City of, v. Attorney-General. Bill in equity for instructions* 
Suffolk S. J. C. Notice acknowledged, appearance and answer 
pending before the full court. 

Jonathan Mann, estate of. John F. Brown et al., petitioners. Peti- 
tion for the compromise of a will. Norfolk S. J. C. Notice 
acknowledged, and right to hearing waived. 

John J. Williams, petitioner. Petition for leave to sell real estate. 
Probate Court, Suffolk. Notice acknowledged, and right to 
hearing waived. 

Eckley, Frances A., estate of. Petition for the appointment of a 
trustee. Probate Court, Suffolk. Notice acknowledged, and 
right to hearing waived. 

George McAlister v. Benjamin F. Burgess, executor. Suffolk S. 
J. C. Notice acknowledged, and right to hearing waived. 

Daniel Steel et aZ., petitioners. Petition for appointment of receiver 
of Faith Missions at Home and Abroad. Notice acknowledged, 
and right to hearing waived. 

Charles F. Aldrich, public administrator of the estate of Adeline 
M. Lawrence. Petition for leave to sell real estate, and for 
payment of debts. Probate Court, Worcester. Notice ac- 
knowledged, and right to hearing waived. 

John J. AYilliams, trustee, petitioner. Petition for leave to sell real 
estate. Probate Court, Norfolk. Notice acknowledged, and 
right to be heard waived. 

Henry EL Sears et al., administrators, v. Sally E. Chapman et als. 
Bill for instructions. Decree. See 158 Mass. 400. 

Holmes et al. v. Coates. Construction of will. Answer of attorney- 
general filed. Decree. 

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. Pending. 

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. 

Cases Arising Under the Legact Tax Act. 

[St. 1891, c. 425.] 

William G. Preston, executor of the will of Emily Webb Preston, 
petitioner. Petition for instructions. Probate Court, Suffolk. 
Answer. Decree. 



1894.] PUBLIC DOCUMENT — No. 12. 73 

Elizabeth T. Eeed, estate of. Petition for construction of will. 
Probate Court, Worcester. Answer. Decree. 

Francis V. Balch, trustee under the will of J. Sophronia B. Little. 
Petition for allowance of trustee's account. Probate Court, 
Essex. Pending. 

William C. Endicott, executor of the will of R. D. Rogers, petitioner. 
Petition for instructions. Probate Court, Essex. Pending. 

Jonathan P. Dana, administrator of the estate of Mary Hunt, peti- 
tioner. Petition for instructions. Probate Court, Worcester. 
Answer. Pending. 

John W. Frothingham et al., executors of the will of Lydia Froth- 
ingham, petitioners. Petition for instructions. Essex Pro- 
bate Court. Pending. 

Charles W. Cook et al., executors of the will of Caroline P. Adams. 
Petition for instructions. Probate Court, Middlesex. Answer. 
Hearing and decree for Treasurer of Commonwealth. Appeal to 
Supreme Judicial Court by executors and trustees. Pending. 

William Minot et als., executors of will of Cornelia A. G. Winthrop, 
petitioners. Petition for instructions as to construction of will. 
Probate Court, Norfolk. Pending. 



74 ATTORNEY-GENERAL'S REPORT. [Jan. 



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. 
Judgment for the plaintiff by agreement. 

Gateley, Ellen, petitioner, v. Commonwealth. Petition for assess 
ment of damages for land taken by the Board of Metropolitan 
Sewerage Commissioners. Middlesex Superior Court. Referred 
to the district attorney for the Northern district. 

Magee Furnace Company, petitioner, v. Commonwealth. Same as 
preceding. Referred to the district attorney for the Suffolk 
district. 

Griffin, John, petitioner, v. Commonwealth. Same as preceding. 

Norcross, Orlando W., et als., petitioners, v. Commonwealth. Same 
as preceding. Referred to the district attorney for the Northern 
district. 

Rice, William B., petitioner, v. Commonwealth. Same as preceding. 
Referred to the district attorney for the Northern district. 

Welch, Francis C, et als., v. Commonwealth. Same as preceding. 

Merrill, George S., Insurance Commissioner, petitioner, v. Abra- 
ham Lincoln Benefit Association. Petition under St. 1893, ch. 
418, to the Supreme Judicial Court, for the appointment of a re- 
ceiver. Thomas Milligan appointed receiver. 

Same v. American Friendly Society. Same as above. Henry A. 
Wyman appointed receiver. 

Same v. American Mutual Relief Association. Same as preceding. 
Same v. Order of Franklin. Same as preceding. 

Same v. National Fraternal and Beneficial Union. Same as pre- 
ceding. 

Same v. United Order of Equity. Same as preceding. Petition dis- 
missed without costs, and without prejudice, another receiver 
having been appointed by the Superior Court. 

Miner, Alouzo A., petitioner for certiorari, v. William M. Olin, Sec- 
retary of the Commonwealth. Suffolk S. J. C. Heard and re- 
served for the full court. Heard by full court and petition dis- 
missed. 



1894.] PUBLIC DOCUMENT — No. 12. 75 

Same, petitioner for mandamus, v. William M. Olin, Secretary of the 
Commouwealth. Suffolk S. J. C. Heard and reserved for the 
full court. Heard by full court and petition dismissed. 

Commonwealth, by Board of Commissioners of Savings Banks, v. 
New Bedford Trust Company. Petition for an injunction and 
the appointment of a receiver. Injunction granted and after- 
wards dissolved. 

Larcom, George T., v. William M. Olin, Secretary of the Common- 
wealth. Bill in equity for an injunction to restrain tbe respond- 
ent from issuing a charter as a city to the town of Beverly. 
Heard and reserved for the full court. Bill dismissed by the 
full court. 

Same v. Same. Petition for a writ of mandamus to prohibit the 
respondent from issuing articles of government as a city to the 
town of Beverly. Rule for parties interested to show cause. 
Heard and reserved for the full court. Writ ordered to issue by 
the full court. 

American Ballot Box Association v. Commonwealth. Petition to the 
Superior Court for the price of ballot boxes furnished to the 
Commonwealth. Suffolk. Pending. 

Henry J. Winde, executor, v. Suffolk Savings Bank, the Common- 
wealth et al. Bill in equity. Suffolk S. J. C. Pending. 

Joseph N. Friedman et al. v. Charles Harrington. Circuit Court of 
the United States. District of Massachusetts. In equity. Bill 
to restrain the respondent as milk inspector of the city of Bos- 
ton from enforcing the provisions of St. 1891, c. 58, against the 
complainants. Continued to await the decision in re Plumley 
pending in the Supreme Court of the United States. 



The following cases reported as pending at the date of the last 
annual report have since been disposed of or are still pending as 
indicated below : — 

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. 
Settled by agreement of parties. 

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 warranto. Pending. 

Attorney-General ex rel. Treasurer v. Meigs Elevated Railroad 
Company. Information for non-payment of corporation tax for 
1889. Pending. 

Attorney-General ex rel. Treasurer v. Meigs Elevated Railroad Con- 
struction Company. Information for non-payment of corpora- 
tion tax for 1889. Pending. 



76 ATTORNEY-GENERAL'S REPORT. [Jan. '94. 

Titcomb, George H., v. Cape Cod Ship Canal Company, George 
A. Harden, 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. 

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 Bank, v. 
Suffolk Trust Company. Petition for injunction and receiver. 
Granted. J. Haskell Butler, Esq., appointed receiver. Pend- 
ing. 



EULES OF PRACTICE IN REQUISITION 

CASES. 



Every application to the Governor for a requisition upon the executive 
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 be in duplicate original papers, or certi- 
fied copies thereof. 

The following must appear by the certificate of the district or prosecu- 
ting attorney : — 

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

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

(c) That he believes he has sufficient evidence to secure the conviction 
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. 

(g) 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 proceedings shall not be 
used for any of said objects. 

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



78 ATTORNEY-GENERAL'S REPORT. [Jan. 

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

1. In all cases of fraud, false pretences, embezzlement or forgery, 
when made a crime by the common law, or any penal code or statute, the 
affidavit of the principal complaining witness or informant that the appli- 
cation is made in good faith, for the sole purpose of punishing the accused, 
and that he does not desire or expect to use the prosecution for the purpose 
of collecting a debt, or for any private purpose, and will not directly or 
indirectly use the same for any of said purposes, shall be required, or a 
sufficient reason given for the absence of such affidavit. 

2. Proof by affidavit of facts and circumstances 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 requisition was made, shall be sufficient 
evidence, in the absence of other proof, that he is a fugitive from justice. 

3. If an indictment has been found, certified copies, in duplicate, must 
accompany the application. 

4. If an indictment has not been found by a grand jury, the facts and 
circumstances showing the commission of the crime charged, and that the 
accused perpetrated the same, must be shown by affidavits taken before a 
magistrate. (A notary public is not a magistrate within the meaning of 
the Statutes.) It must also be shown that a complaint has been made, 
copies of which must accompany the requisition, such complaint to be 
accompanied by 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 depositions, 
and of the officer who issued the warrant must be duly certified. 

6. Upon the renewal of an application,— for example, on the ground 
that the fugitive has fled to another State, not having been found in the 
State on which the first was gran ted,— new or certified copies of papers, 
in conformity with the above rules, must be furnished. 



1894.] , . PUBLIC DOCUMENT— No. 12. 79 

7. In the ease of any person who has been convicted of any crime, and 
escapes after conviction, or while serving his sentence, the application may 
be made by the jailer, sheriff or other officer having him in custody, and 
shall be accompanied by certified copies of the indictment or information, 
record of conviction and sentence upon which the person is held, with the 
affidavit of such person having him in custody, showing such escape, with 
the circumstances attending the same. 

8. No requisition will be made for the extradition of any fugitive except 
in compliance with these rules.