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}rment, 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 bjr 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
0
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
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PUBLIC DOCUMENT — No. 12.
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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 Compan3T,
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
0 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.
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