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

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



dommoittealtlj of Utassacljusftts. 



REPORT 



ATTOKNEY-GEKEKAL 



Year ending January 19, 1898. 



Compliments of the 



ATTORNEY-GENERAL. 



BOSTON : 

WRIGHT & POTTER PRINTING CO., STATE PRINTERS. 

18 Post Office Square. 

1898. 



TABLE OP CONTENTS. 



PAGE 



Cases attended to by this Department, ix 

Capital Cases, x 

Cases Other than Capital, xv 

The Office of the Attorney-General, xvi 

Recommendations, xvi 

Opinions, xxv 

Opinions, 1 

Opinions upon Application for Leave to tile Informations, . , 102 

Informations at the Relation of the Treasurer, .... 106 

Informations at the Relation of the Commissioner of Corporations, 113 

Informations at the Relation of Private Persons, .... 113 

Applications not granted, 116 

Grade Crossings, 117 

Corporate Applications for Dissolution, 123 

Corporations required without Suit to file Tax Returns, . . 125 

Corporations required without Suit to file Certificate of Condition, 127 

Collateral Inheritance Tax Cases, 128 

Public Charitable Trusts, 134 

Land-damage Cases arising from the Alteration of Grade Cross- 
ings, 137 

Suits conducted in Behalf of State Boards and Commissions : — 

Metropolitan Park Commission, 140 

Metropolitan Sewerage Commission, 147 

Metropolitan Water Board, 148 

Miscellaneous Cases from Above Commissions, . . . 149 

State Board of Lunacy and Charity, 150 

Miscellaneous Cases, 152 

Corporation Tax Collections, 164 

Miscellaneous Collections, 167 

Extradition and Interstate Rendition, 169 

Rules of Practice in Interstate Rendition, 174 



Cmnman:bttalt|j ai IPassatjrasttts 



Office of the Attorney-General, 
Boston, Jan. 19, 1898. 

To the Honorable the President of the Senate. 

I have the honor to transmit herewith my report for the 
year ending this day. 

Very respectfully, 

HOSEA M e KNOWLTON, 

Attorney -General. 



Commonlwaltlj of IHassaxImsstts. 



OFFICE OF THE ATTORNEY-GENERAL, 
Rooms 225 and 226, State House. 



A ttorney- General. 
HOSEA M. KNOWLTON of New Bedford. 

Assistants. 
GEORGE C. TRAVIS of Newton. 
Special Assignments. — Heads of Departments. 

Metropolitan Park Commission. 

JAMES MOTT HALLOWELL of Medford. 
Special Assignments. — Metropolitan Water Board. 

Metropolitan Sewerage Commission. 
Massachusetts Highway Commission. 
Harbor and Land Commissioners. 
Prerogative Writs. 

FRANKLIN T. HAMMOND of Cambridge. 
Special Assignments. — State Board of Lunacy and Charity. 
Cattle Commission. 
Public Charitable Trusts. 
Abolition of Grade Crossings. 
Collateral Inheritance Tax. 
Receiverships. 

ARTHUR W. DeGOOSH of Boston. 
Special Assignments. — Commissions and State Boards, other than those enumer- 
ated above. 
Extradition and Interstate Rendition. 
Corporations. 
Collections. 



Expenditures. 
Total appropriation for 1897, including salary of Attorney-General, . $41,000 00 
For salaries (including that of Attorney-General), . . $16,158 34 

For office expenses, 5,129 82 

For court expenses,* . 7,597 31 

Balance (unexpended), 12,114 53 

$41,000 00 

Total expenditures $28,885 47 

Less costs collected, 1,537 93 

Net expenditure, $27,347 54 

* Of this amount $1,537.93 has been collected as costs of suits and paid to the Treasurer of 
the Commonwealth. 



(fommatttoltfj of ]$Jiu<&nt\*u$rtt$. 



Office of the Attorney-General, 
Boston, Jan. 19, 1898. 

To'the Ge?ieral Court of Massachusetts. 

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

The cases requiring the attention of the office during the 
year to the number of 1,190 are tabulated below : — 

Indictments for murder, 14 

Extradition and interstate rendition, 69 

Informations at the relation of the Treasurer and Receiver-General, 198 

Informations at the relation of the Commissioner of Corporations, 6 

Informations at the relation of private persons, .... 24 

Applications for informations considered and not granted, . . 2 

Petitions for abolition of grade crossings, 120 

Voluntary proceedings for dissolution of corporations, . . 40 

Public charitable trusts, 35 

Collateral legacy tax cases, 62 

Land-damage cases arising through the alteration of grade 

crossings, . 48 

Land-damage cases arising from the taking of land by the Met- 
ropolitan Park Commission, 150 

Land-damage cases arising from the taking of land by the Met- 
ropolitan Water Board, 24 

Land-damage cases arising from the taking of land by the Met- 
ropolitan Sewerage Commission, 13 

Miscellaneous cases arising from the work of the above-named 

commissions, 12 

Settlement cases for supporting insane paupers, .... 13 

Bastardy complaints, 7 

Miscellaneous cases, 108 

Tax returns of corporations enforced without suit, ... 83 

Other corporation returns enforced without suit, .... 6 

Collections made without suit, 154 

1,190 



x ATTORNEY-GENERAL'S REPORT. [Jan. 

Capital Cases. 

Indictments for murder, pending at the date of the last 
annual report, have been disposed of as follows : — 

Herbert A. Willis of Taunton, indicted in Bristol 
County, Nov. 7, 1896, for the murder of Fred Strange at 
Taunton, June 22, 1896. Henry J. Fuller and Frederick 
V. Fuller were assigned as his counsel. On Feb. 1, 1897, 
he retracted his former plea of not guilty and pleaded guilty 
of murder in the second degree. The plea was accepted by 
the Commonwealth, and he was thereupon sentenced to the 
State Prison for life. The case was in charge of District- 
Attorney Andrew J. Jennings. 

In August last the prisoner was killed in a desperate at- 
tempt to escape from the State Prison. 

Isaac F. Sawyer of Boston, indicted in Suffolk County, 
December, 1896, for the murder of an unnamed infant child 
at Boston, Jan. 6, 1896. He was arraigned Dec. 17, 1896, 
and pleaded not guilty. On Jan. 28, 1897, he was dis- 
charged on his personal recognizance, the evidence in the 
possession of the Commonwealth being deemed insufficient 
to warrant a conviction. The case was in charge of District- 
Attorney Oliver Stevens. 

Henry Stewart, alias Harry Stewart, alias Henry 
Sweeney, of Chicopee, indicted in Hampden County, 
December, 1896, for the murder of Patrick J. Murray at 
Chicopee, Nov. 14, 1896. On Feb. 16, 1897, he was 
arraigned and pleaded not guilty, and S. S. Taft of Spring- 
field and James H. Loomis of Chicopee were assigned by 
the court as his counsel. On May 3, 1897, he retracted his 
former plea of not guilty, and pleaded guilty of murder in 
the second degree. The plea was accepted by the Com- 
monwealth, and he was thereupon sentenced to the State 
Prison for life. The case was in charge of District- Attorney 
Charles L. Gardner. 

Sylvester Roundtree of Boston, indicted in Suffolk 
County, January, 1897, for the murder of Anna White, 



1898.] PUBLIC DOCUMENT — No. 12. xi 

alias Annie White, alias Betty White, at Boston, Dec. 
12, 1896. On Jan. 26, 1897, he was arraigned and pleaded 
not guilty, and E. G. Walker of Boston was assigned as his 
counsel. On April 22, 1897, he retracted his former plea 
of not guilty, and pleaded guilty of murder in the second 
degree. This plea was accepted by the Commonwealth, and 
he was thereupon sentenced to the State Prison for life. 
The case was in charge of District- Attorney Oliver Stevens. 

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

Samuel Whittaker of Cambridge, indicted in Middlesex 
County, February, 1897, for the murder of Catherine 
Whittaker at Cambridge, Jan. 1, 1897, was arraigned Feb. 
18, 1897, and pleaded not guilty. Henry H. Winslow and 
Addison C. Burnham were assigned by the court as his 
counsel. On April 12, 1897, he retracted his plea of not 
guilty and pleaded guilty of murder in the second degree. 
The plea was accepted by the Commonwealth, and he was 
thereupon sentenced to the State Prison for life. The case 
was in charge of District- Attorney Frederick N. Wier. 

Lorenzo W. Barnes of Maynard, indicted in Middlesex 
County, February, 1897, for the murder of John Dean of 
Maynard, Dec. 17, 1896, was arraigned Feb. 23, 1897, and 
pleaded not guilty. J. C. Burke and J. L. O'Neil were 
assigned as his counsel. On May 7, 1897, he was tried by 
a jury before Blodgett and Dewey, J.J., and a verdict was 
rendered of guilty of murder in the first degree. Exceptions 
were filed by counsel for the prisoner, which were after- 
wards waived. On Dec. 21, 1897, he was sentenced to 
death, sentence to be executed March 4, 1898. The case 
was in charge of District- Attorney Frederick N. Wier. 

John O'Neil of Buckland, indicted in Franklin County, 
March, 1897, for the murder of Hattie Evelyn McCloud at 
Buckland, Jan. 8, 1897, was arraigned March 20, 1897, and 
pleaded not guilty. On July 19, 1897, he was tried by a 
jury before Mason, C.J., and Fessenden and Sheldon, J.J., 
and a verdict was rendered of guilty of murder in the first 



xii ATTORNEY-GENERAL'S REPORT. Man. 



degree. Exceptions were filed by counsel for the prisoner, 
and were argued before the Supreme Judicial Court in Spring- 
field in October. The exceptions were overruled, Nov. 13, 
1897. On Nov. 24, 1897, he was sentenced to death, and 
sentence was executed Jan. 7, 1898. Charles J. Parkhurst, 
Enoch H. Beer and Fred F. Dowlin were counsel for the 
prisoner. The trial of the case was conducted by the Attor- 
ney-General, ably assisted by District-Attorney John C. 
Hammond, and also by Frederick L. Greene in the prepara- 
tion of the case. 

This was a case of peculiar atrocity. The victim was a 
woman of high character, a widow, well known and uni- 
versally respected in the community. She lived with her 
daughter at the summit of a high hill in the suburbs of 
Shelburne Falls. She was assaulted in the early part of 
the evening, while travelling up the steep hill in the direc- 
tion of her home. Her body was discovered the next morn- 
ing, in the woods near the road, and it was apparent, even 
without medical evidence, that she had been outraged, 
robbed and murdered. Few cases in recent years have ex- 
cited more universal indignation ; and yet, from the first 
discovery of the crime, that respect for the orderly proceed- 
ings of the law which is content to abide by the results 
reached by the investigations of prosecuting officers and the 
judgment of the courts has honorably characterized even 
those most deeply affected by the crime. 

The trial occupied eight days. The prisoner was ably 
defended, but the mass of evidence, both direct and circum- 
stantial, which the diligence of the officers charged with the 
investigation of the case had accumulated, left no room for 
reasonable doubt of the guilt of the prisoner. 

In view of the wide-spread interest in the matter and the 
many important and interesting questions of law and evidence 
raised during the trial, I have asked and received the ap- 
proval of the Governor and Council for the publication of 
the case, and ask that an appropriation be made therefor. 

Dominique Krathofski, alias Dominique Kfiotoski, of 
Springfield, indicted in Hampden County, May, 1897, for 
the murder of Victoria Pinkos at Springfield, Jan. 17, 1897. 



1898.] PUBLIC DOCUMENT — No. 12. xiii 

On May 24, 1897, he was arraigned and pleaded not guilty. 
Thomas W. Kenefic and John T. Moriarty were assigned by 
the court as his counsel. On Jan. 5, 1898, he was tried by 
a jury before Dewey and Maynard, J. J., and a verdict was 
rendered of guilty of murder in the first degree. Certain 
exceptions taken by counsel for the prisoner are now pend- 
ing. The trial was conducted by District-Attorney Charles 
L. Gardner, and the case is in his charge. 

Minnie Mooney, alias Minnie Doherty, alias Minnie 
Jennings, of New Bedford, indicted in Bristol County, June, 
1897, for the murder of her infant child at Fairhaven, March 
18, 1897. She was arraigned June 25, 1897, and pleaded 
not guilty. Frank A. Milliken and Robert F. Raymond 
were assigned by the court as her counsel. On Nov. 1, 1897, 
she retracted her plea of not guilty, and pleaded guilty of 
murder in the second degree. The plea was accepted by the 
Commonwealth, and she was thereupon sentenced to the 
House of Correction at New Bedford for life. The case was 
in charge of District-Attorney Andrew J. Jennings. 

John M. Harris of Concord, indicted in Middlesex 
County, October, 1897, for the murder of Emma F. Butters 
at Concord, Sept. 4, 1897. On Dec. 17, 1897, he was 
arraigned and pleaded not guilty. Melvin O. Adams and 
Henry S. Milton were assigned by the court as counsel for 
the prisoner. On Jan. 8, 1898, he retracted his plea of not 
guilty, and pleaded guilty of murder in the second degree. 
The plea was accepted by the Commonwealth, and he was 
thereupon sentenced to the State Prison for life. The case 
was in charge of the Attorney-General, assisted by District- 
Attorney Frederick N. Wier. 

The plea of guilty of murder in the second degree was 
accepted by the Commonwealth after careful investigation of 
the circumstances attending the homicide, and upon the belief 
that a trial would result in the rendering of such a verdict 
by the jury. The prisoner had been using intoxicating 
liquors to excess not only on the day of the murder but for 
several days previously. At the time of the murder he also 
attempted to kill the son of Mrs. Butters, and also himself. 



xiv ATTORNEY-GENERAL'S REPORT. [Jan. 

He was seriously wounded, and for a time recovery was un- 
certain. There was nothing in the case to show that the act 
was deliberately premeditated. On the contrary, all the 
evidence indicated that the prisoner was acting upon a sud- 
den impulse. 

The following indictments for murder are now pending : — 

Gilbert Peters of Winchendon, indicted in Worcester 
County, August, 1897, for the murder of Bell Rollins of 
Royal ston, June 18, 1897. On. Aug. 12, 1897, he was 
arraigned and pleaded not guilty. Charles F. Baker and 
Sydney P. Smith were assigned by the court as his counsel. 
The case is in charge of District-Attorney Herbert Parker. 

Alfred C. Williams of Lynnfield, indicted in Essex 
County, September, 1897, for the murder of John Gallo at 
Lynnfield. On October 4 he was arraigned and pleaded not 
guilty. Charles A. Sayward and Nathaniel N. Jones were 
assigned by the court as counsel for the prisoner. This case 
has been assigned for trial on Feb. 7, 1898. The case is in 
charge of District- Attorney Alden P. White. 

Jeremiah Maxchester, Jr., of Westport, indicted in 
Bristol County, November, 1897, for the murder of Holder 
A. Tripp at Westport, July 11, 1897. On Nov. 19, 1897, 
he was arraigned and pleaded not guilty. Edward Higgin- 
son and Charles R. Cummings were assigned by the court as 
counsel for the prisoner. The date for trial has not been 
fixed. The case is in charge of District-Attorney Andrew 
J. Jennings. 

Fraxcis McLaughlix of Boston, indicted in Suffolk 
County, December, 1897, for the murder of Margaret Mc- 
Laughlin at Boston, Nov. 15, 1897. On Dec. 23, 1897, he 
was arraigned and pleaded not guilty. William X. Sullivan 
of Boston was assigned by the court as counsel for the pris- 
oner. The date for trial has not been fixed. The case is 
in charge of District- Attorney Oliver Stevens. 

The number of capital cases requiring the attention of this 
office, or of the district attorneys, though greater than in the 



1898.] 



PUBLIC DOCUMENT — No. 12. 



xv 



two years next preceding, is less than the average of recent 
years. The assertion has often been made that the crime of 
murder is increasing in this Commonwealth. I believe that 
statistics show this to be untrue ; and I append herewith for 
reference a table showing the number of cases requiring the 
attention of the law department during each year since 1875. 
This table shows that the number of indictments for murder 
in proportion to the population of the Commonwealth has 
decreased rather than increased during that time, and that 
the record of the past year is not exceptional. 



YEAR. 


Number. 


YEAR. 


Number. 


1875, .... 


28 


1887, .... 


26 


1876, 






24 


1888, 










24 


1877, 




, 


20 


1889, 










23 


1878, 






21 


1890, 










11 


1879, 




. , 


21 


1891, 










15 


1880, 




, , 


22 


1892, 










14 


1881, 






27 


1893, 










17 


1882, 






20 


1894, 










18 


1883, • 




, , 


20 


1895, 










9 


1884, 






18 


1896, 










8 


1885, 






16 


1897, 










14 


1886, 






23 







Cases Other than Capital. 

The tables herewith submitted show the cases argued, tried 
or conducted by the Attorney-General, or by his assistants, 
in the supreme judicial and superior courts during the year. 
The number of civil cases of all kinds conducted by this 
office, in which there was an actual trial or argument, is 
probably much greater than in any previous year. 

It would be impracticable to report in detail other than by 
the accompanying tables the work done in the various depart- 
ments in charge of this office. A fair illustration may be 
furnished by a brief statement of the cases arising from the 
taking of land by the Metropolitan Park Commission. These 
cases have been in charge of Mr. Travis. On Jan. 20, 1897, 
there were pending in court thirty-six petitions against the 
Commonwealth for damages caused by taking of land, or 
rights in land, by the Metropolitan Park Commission ; and 



xvi ATTORNEY-GENERAL'S REPORT. [Jan. 

during the past year one hundred and fourteen additional 
petitions have been entered in court, making a total of one 
hundred and fifty. Of this number, seventeen have been 
disposed of by trial and fifty-three by agreement of parties. 
There are now pending in court eighty cases. 

The Office of the Attorney-General. 

The wisdom of the Legislature in providing that the law 
business of the Commonwealth be done by the Attorney- 
General, or under his direction, has been sufficiently demon- 
strated. The saving to the Commonwealth has been consid- 
erable, and the law department has been so organized that 
the work is done to much better advantage. Before the 
passage of the statute (St. 1896, c. 490) special counsel 
were retained by the several commissions and boards, who, 
though competent and able, were not expected to give the 
interests of the Commonwealth their exclusive attention, nor 
to co-operate each with the other nor with the Attorney-Gen- 
eral. Under the present system, the business formerly thus 
distributed and scattered, at the expense both of harmony 
and economy, is now entrusted to assistants acting under the 
immediate direction of the Attorney-General, who give prac- 
tically their entire attention to the interests of the Common- 
wealth. It is but simple justice to say that the success of 
the present system is largely due to their energy, fidelity 
and ability in the discharge of the duties devolved upon 
them. 

In consequence of the growth of the business of the office, 
it was found necessary to increase the number of assistants ; 
and accordingly on the first day of July, 1897, Mr. Arthur 
W. DeGoosh of Boston was added to the force already em- 
ployed. Elsewhere I have given a table showing the assist- 
ants employed and the duties specially assigned to each. 
These assignments do not comprise all of the work devolv- 
ing upon them, but such only as can be conveniently classi- 
fied. 

Recommendations . 

Under the authority of Public Statutes, chapter 17, sec- 
tion 7, providing for a report by the Attorney-General, and 



1898.] PUBLIC DOCUMENT— No. 12. xvii 

in accordance with the usage that has prevailed, under which 
Attorneys- General have been accustomed in their reports to 
consider questions relating both to the judicial department 
and to practice and proceedings in courts, I submit the fol- 
lowing recommendations : — 

Larceny, Embezzlement and Cheating. — These offences 
may well be consolidated into the single crime of larceny. 
The technical distinctions between larceny by trick and false 
pretences on the one hand, and between larceny and em- 
bezzlement on the other, turning, as they do in many 
instances, upon exceedingly technical questions of title and 
possession, result sometimes in a miscarriage of justice, to 
the scandal of the law. There is no good reason why these 
distinctions should not be abolished. A commission ap- 
pointed by the Governor under the authority of the Legislat- 
ure is now engaged in the investigation of the subject of 
criminal pleadings, and is preparing a schedule of forms. 
The consolidation I suggest would tend to simplify their work 
in this department of criminal law. 

Privacy of Trials involving Indecent Matter. — It has been 
the wise policy of Massachusetts to provide that the proceed- 
ings of her courts should be open to the public without dis- 
crimination. The fulness, however, with which trials of gen- 
eral interest have come to be reported has resulted in some 
cases in the publication of matter so indecent that, if it were 
not protected by the fact of being the report of proceedings 
in open court, it would be indictable under the statute pro- 
hibiting the publication of matter manifestly tending to the 
corruption of the morals of youth. There should be a law 
authorizing the presiding justice in his discretion to exclude 
from the trial of cases involving such matter all persons ex- 
cepting those directly interested therein. An existing statute 
(Pub. Sts., c. 160, § 16) gives this discretion to courts in 
the case of minors; and there is no constitutional objection, 
that I am aware of, which prevents the Legislature from 
extending its provisions to all persons not interested in the 
proceedings, whenever the interests of public morals so 
require. 



xviii ATTORNEY-GENERAL'S REPORT. [Jan. 

Enforcement of the Law against Illegal Seining in Buz- 
zard's Bay. — Seining for fish is prohibited in the waters of 
Buzzard's Bay by St. 1886, c. 192. The statute in question 
provides that apparatus used in illegal seining shall be for- 
feited, and that upon being seized it rna} r be detained and 
libelled ; and a steamer has been provided for the use of the 
District Police in enforcing its provisions. The law as it 
stands is reasonably capable of enforcement against inhabi- 
tants of this Commonwealth. It happens, however, that the 
principal violaters are residents of other States, who come 
into the bay in swift steamers equipped for the taking of men- 
haden in large quantities. Those in charge of such illegal 
expeditions, however, often escape from the jurisdiction with- 
out seizure, and, inasmuch as the statute does not author- 
ize a libel for forfeiture excepting against a vessel already 
seized, the steamers so engaged which escape may return with 
impunity. If it is desired to make the law effective, a pro- 
vision should be made authorizing the filing of a libel for 
forfeiture, whether the vessel and apparatus have been seized 
or not, and the issuing of a warrant upon such libel for the 
seizure of such vessels and apparatus whenever and wherever 
found within the jurisdiction. 

Declarations of Deceased Persons as Evidence. — Nearly 
every lawyer in the course of his practice has been annoyed, 
and his client been indignant, at the rule which forbids the 
admission as evidence of declarations of deceased persons, 
especially parties in interest, made in good faith before the 
beginning of litigation. Thus the accident of death has 
sometimes resulted in failure of justice by the exclusion of 
evidence vital to the isue. The rule is in conflict with the 
modern tendency, which is to produce before the court and 
jury everything which tends to assist in the discovery of the 
truth. This tendency long ago led to the repeal of the law 
excluding the testimony of parties and of witnesses interested 
in the result of the cause, and prohibiting the defendant in a 
criminal case from testifying in his own behalf. The rule I 
have referred to has been so far modified by the court as 
to make competent in any case evidence of what a deceased 
witness testified to at a former trial of the same issue between 



1898.] PUBLIC DOCUMENT — No. 12. xix 

the same parties. Yale v. Comstock, 112 Mass. 267. St. 
1896, c. 445, has also created another exception to the gen- 
eral rule. This statute provides that, in the trial of an 
action against an executor or administrator, the evidence of 
statements made by the deceased shall, under certain cir- 
cumstances, be admissible. 

The latter statute has now been in operation nearly two 
years. The main criticism that can be made of it is that it 
does not go far enough. If that statute was a wise provision 
there seems to be no good reason why the law should not be 
extended so far as to admit as evidence all declarations of 
deceased persons made before the beginning of the suit, if 
they appear to the satisfaction of the presiding justice to 
have been made upon the personal knowledge of the de- 
clarant. In Sugden v. Lord St. Leonards, L. R. 1 P. D. 
154, 250 (1876), Lord Justice Mellish said: "If I was 
asked what I think it would be desirable should be evidence, 
I have not the least hesitation in saying that I think it would 
be a highly desirable improvement in the law if the rule was 
that all statements made by persons who are dead respecting 
matters of which they had a personal knowledge, and made 
ante litem ?notam, should be admissible." I am informed 
that such is now the law of Scotland. If a statute should 
be enacted permitting declarations of deceased persons to 
be used in evidence, limited in its provisions to declarations 
made in good faith before the bringing of the suit, and to 
those made upon the personal knowledge of the declarant, 
I believe that it would tend to promote that discovery of 
truth which is the main purpose for which judicial tribunals 
are established. 

Arrest on Mesne Process. — It is a singular fact that there 
is no statute authorizing the court to reduce an excessive 
ad damnum in writs authorizing arrest on mesne process. 
Writs of attachment on mesne process are carefully guarded 
by statute, authorizing the courts to reduce, or even to dis- 
charge, excessive or unreasonable attachments. St. 1897, 
c. 460. If, however, a person is arrested on mesne pro- 
cess, he is required to give bail to an amount equal to the 
damages claimed, and can only obtain relief from unreason- 



xx ATTORNEY-GENERAL'S REPORT. [Jan. 

able abuse of process by the cumbersome process of a writ 
of habeas corpus. Writs authorizing arrest and writs of 
attachment should be put upon the same footing in this 
respect. 

Under existing statutes an arrest cannot be made after 
sunset, except by special authority of a magistrate. This 
provision is probably accounted for by the fact that a per- 
son arrested after sunset is likely to experience much diffi- 
culty in finding a magistrate authorized to discharge him 
from arrest by taking bail. The same reasoning would 
apply to a provision prohibiting, except by special author- 
ity, arrests after business hours on Saturdays. The custom 
of a Saturday half-holiday has become so fully established 
that, in cities especially, it is often difficult to find a magis- 
trate at his place of business Saturday afternoons authorized 
to take bail. The same considerations apply to arrests made 
on legal holidays. 

I understand that both these matters were presented to 
the Legislature of last year, and were postponed for the con- 
sideration of the next General Court. I recommend the 
subject to the consideration of the present Legislature. 

Compelling the Testimony of Witnesses before Magistrates 
upon the Taking of Depositions. — Under the existing law 
(Pub. Sts., c. 169, §§ 1-6), such magistrates have the 
power to summon witnesses and to commit for contempt in 
case of their failure to attend. Although a witness can thus 
be forced to attend, however, there appears to be no pro- 
vision for forcing him to testify after he has attended. St. 
1883, c. 195, has conferred this power upon the court in the 
case of tribunals which do not have the power to compel 
the attendance of witnesses. I see no reason why this should 
not be extended to magistrates and tribunals who do have 
the power to compel the attendance of witnesses. In fact, 
the difficulty in the existing system seems to be a mere 
oversight, as the power to compel the attendance necessarily 
implies the purpose to compel their testimony. I do not 
favor vesting this power in the magistrates themselves, but 
recommend an act upon the same lines as the statute of 
1883, giving the power to the court to compel the testimony 
upon application. 



1898.] PUBLIC DOCUMENT — No. 12. xxi 

Expert Testimony. — There is undoubtedly a feeling in 
the community that the use of expert testimony both in 
criminal and in civil cases should be limited and regulated. 
Witnesses called merely for the purpose of giving their 
opinions as experts upon hypothetical or agreed facts are 
very likely to have their views affected, consciously or even 
unconsciously, by reason of their employment. As a re- 
sult, it often happens that two sets of experts are called to 
testify, both of equal ability and honesty, but whose testi- 
mony differs diametrically. Such disagreements, especially 
when induced by partisan bias, tend to confuse the issue and 
to throw discredit upon the value of this kind of testimony. 
It has been suggested that a statute might be enacted, 
authorizing the court, upon application of either party, 
where expert testimony is pertinent, to appoint an impar- 
tial expert to examine the facts and make report of his 
opinion, to be used in the trial of the case with like effect as 
the report of an auditor ; giving perhaps the right to either 
party to call him as a witness for examination or cross-ex- 
amination. Another suggestion is that the number of ex- 
perts to be called on either side upon any given issue be 
limited. There is no doubt that the court has power so to 
limit the number of witnesses whose testimony is merely 
cumulative, but it is a power that is rarely exercised, and, 
while an act authorizing such a limitation of the number of 
experts would be merely declaratory, it would assist the 
court in reducing the expense and length of trials involving 
such testimony. I recommend the matter for the considera- 
tion of the Legislature. 

Proceedings in Probate Courts. — Under existing statutes, 
re-trials of all issues both of fact and law heard in the 
probate court may be had in the appellate court. The 
result is that in many cases trials of questions of fact in 
probate courts are entered into for the mere purpose of ob- 
taining the evidence of the opposing party, and without seek- 
ing in good faith for the judgment of that court. It is an 
evil which ought to be, and in part at least can be, remedied 
by appropriate legislation. To occupy the time of judges of 
the probate courts for the purpose I have indicated is deroga- 



xxii ATTORNEY-GENERAL'S REPORT. [Jan. 

tory to the dignity of the court, and is a needless and im- 
proper expense both to the parties and to the county. 

I see no reason why, in cases where the right of trial by 
jury exists, parties desiring such trial may not be required 
to file their claims therefor seasonably in the probate court. 
Thereupon the probate court may suspend further hearings 
on questions of fact involved, and frame issues for a jury 
to be tried in the supreme judicial or superior courts with- 
out removing the case itself. This proposition was urged 
last year, but no action was taken. I desire to call it again 
to the attention of the Legislature. 

Such a statute, however, should not limit the right of exam- 
ination of the witnesses to wills by any party interested. The 
law having provided for the attestation of wills by three dis- 
interested witnesses, all persons having rights under a will, 
or whose rights of inheritance are cut off thereby, ought to 
be allowed to examine those witnesses without being limited 
thereby as to their subsequent proceedings. 

Another amendment which has been suggested is, to pro- 
vide by law that decisions of the probate court upon ques- 
tions of fact shall be final ; giving, however, either party 
the right to remove the issue before trial into the supreme 
court. It is obvious that serious objections might be urged 
against such a statute. I feel warranted, however, in calling 
the attention of the Legislature to the question of how far the 
procedure in probate courts may be reformed in the direction 
I have indicated. 

Under the present laws a guardian cannot be appointed to 
care for the property of an aged person, feeble in body and 
mind, however much he may desire it, without placing upon 
him the stigma of legal insanity, — a stigma which may not 
only affect his own previous acts, but imperil, also, those of 
his posterity. It is practicable to provide by legislation 
that a guardian may be appointed whenever a person by rea- 
son of extreme age or physical infirmities so desires, or when 
his mind is so greatly weakened by age or disease that he 
needs a guardian to care for his estate, though not in a con- 
dition that may properly be characterized as insanity. 
Similar legislation exists in other States. 

Probate courts are empowered by law to appoint auditors 



1898.] PUBLIC DOCUMENT— No. 12. xxiii 

to hear disputed accounts. Courts of insolvency should 
have similar powers regarding disputed claims and accounts 
of assignees. 

Under Pub. Sts., c. 141, § 27, as amended, and St. 1891, 
c. 415, § 1, probate courts are given jurisdiction in equity, 
concurrently, with any other court having jurisdiction of 
proceedings in equity, of all cases and matters relating to 
the administration of estates of deceased persons, or to wills 
or other written instruments and trusts created by either. I 
recommend that those powers in equity be extended so as to 
embrace matters relating to guardianship. 

Answers of Persons summoned by Trustee Process. — A 
person summoned in a trustee writ as having goods, effects 
or credits of the plaintiff in his possession, is required to 
answer under oath in all cases with one exception. In 
police, municipal and district courts an answer that he has 
no funds in his possession may be made not under oath. I 
see no reason for the distinction, and recommend that the 
law may be made uniform in this respect. 

Judicial Salaries. — The salaries of the justices of the 
higher courts of the Commonwealth are inadequate to the 
amount of work required and to the dignity and importance 
of their offices. Every intelligent lawyer has long known 
this ; and I think it is due, not only to the court, but to the 
bar, that the Attorney-General should call the attention of 
the Legislature to the matter. The fact that, notwithstanding 
the present scale of salaries, the Executive has been fortunate 
thus far in having been able to obtain the services of com- 
petent and able men for judicial positions, does not dispose 
of nor affect the question. If the present inadequate salaries 
are continued, it is doubtful if such good fortune may be 
expected in future appointments. There has been mani- 
fested, already, considerable reluctance to accept positions 
on the bench on account of the salary of the office. This 
should not be. The acceptance of judicial appointment 
ought not to involve a serious pecuniary sacrifice. Com- 
parisons are not always legitimate as arguments ; but it is 
a fact that the salaries paid the justices of our higher courts 



xxiv ATTORNEY-GENERAL'S REPORT. [Jan. 

average much less than those paid in other States of equal 
rank and population ; and the salaries of many subordinate 
offices in this State very nearly equal the salaries estab- 
lished for the judges of the superior court. Justice to an 
important and honorable department of the government of 
the Commonwealth, as well as wise economy, demands that 
the compensation of those holding high judicial positions 
be made more nearly commensurate with the value of their 
services. 

Report of the Attorney- General. — The statute requiring 
a report to the General Court by the Attorney-General pro- 
vides (Pub. Sts., c. 17, § 9) that he shall include in his re- 
port " such . . . information in relation to the criminal 
laws, and such observations and statements as in his opinion 
the criminal jurisprudence and the proper and economical 
administration of the criminal law may warrant and require." 
It will be observed that this section limits his report to mat- 
ters relating to criminal law and procedure. It was enacted 
at a time when the principal business of the Attorney-Gen- 
eral was with capital and other criminal cases. I have 
already referred to the fact, however, that it has been the 
custom of attorneys-general to include in their report sugges- 
tions relating to practice and procedure in both civil and 
criminal cases. The reason for this undoubtedly is that the 
judiciary has no proper avenue of communication with the 
Legislature, and no department of government is charged 
with the duty of reporting suggestions relating to the busi- 
ness of the courts. In view of the fact that criminal cases, 
while still the most important, are by no means the princi- 
pal business of the office of the Attorney- General, there is 
no good reason why the limitation to matters relating to the 
criminal side of the courts should longer be retained in the 
statute. I recommend that the section be redrafted to con- 
form to the existing custom ; and that the Attorney-General 
may be formally authorized to include in his report sugges- 
tions and recommendations relating to the judiciary, and to 
practice and procedure in the courts of the Commonwealth. 



1898.] PUBLIC DOCUMENT — No. 12. xxv 

Opinions. 

I append to this report copies of such opinions as may be 
of public interest or of importance for future reference. 
The custom of printing official opinions was begun by Attor- 
ney-General Pillsbury in 1891. In his report for that year 
he gave, as a reason therefor, "the frequent inquiry which 
is made for the official opinions of the Attorney-General and 
the difficulty of procuring them even from the files of this 
department." The same reasons warrant me in recommend- 
ing that the opinions already published be collected into a 
single volume, properly indexed and digested. The num- 
ber so far published, including those of this year, is sufficient 
to make a book of the ordinary size of the Massachusetts 
reports. Inquiry for opinions of previous years is often 
made, and it frequently requires a search through several 
annual reports to find the one desired. I recommend that a 
resolve be enacted providing for collecting in a single volume 
the opinions heretofore published. 

HOSEA M. KNOWLTON, 

Attorney- General. 



OPINIONS. 



An act providing that any town in which a high school is not maintained 
may grant and vote money to pay the tuition of children residing in 
said town and attending an academy situated in the town, but not 
under the control of the town authorities, is unconstitutional. 

For the same reason it is unconstitutional for a town to grant and vote 
money to pay the tuition of children attending such an academy out- 
side of the said town. 

March 18, 1896. 

Hon. George P. Lawrence, President of the Senate.* 

Dear Sir : — I have the honor to acknowledge the receipt of a 
copy of an order adopted Feb. 18, 1896, requesting the u opinion 
of the Attorney-General upon the following important questions 
of law : — 

14 1. Is it constitutional for a town to grant and vote money 
to pay the tuition of children attending an academy in said town 
in accordance with chapter 94 of the Acts of 1895? 

44 2. Is it constitutional for a town to grant and vote money to 
pay the tuition of children attending an academy outside of said 
town?" 

1. The act referred to in the first question (St. 1895, c. 94) 
is as follows : " Section 1. Any town in which a high school is 
not maintained, but in which an academy of equal or higher grade 
is maintained, may grant and vote money to pay the tuition of 
children residing in such town and attending such academy : 
provided, such academy is approved for that purpose by the state 
board of education." 

So far as this act is in the exercise of the general power con- 
ferred by the legislative department to raise money by taxation 
for public purposes, there is no reason to doubt that it is within 
the authority of the Legislature. The education of the young has 
been from the earliest times regarded as one of the highest and 
most useful public purposes for which taxes may be levied But 
the method by which money raised and appropriated for educa- 
tional purposes may be expended was regulated and limited by 

* This opinion and the one following were omitted inadvertently from the report 
for 1896. 



2 ATTORNEY-GENERAL'S REPORT. [Jan. 

Art. XVIII. of the Amendments to the Constitution, which is as 
follows: "Art. XVIII. All moneys raised by taxation in the 
towns and cities for the support of public schools, and all moneys 
which may be appropriated by the state for the support of 
common schools, shall be applied to, and expended in, no other 
schools than those which are conducted according to law, under 
the order and superintendence of the authorities of the town or 
city in which the money is to be expended ; and such moneys shall 
never be appropriated to any religious sect for the maintenance, 
exclusively, of its own school." 

I am of opinion that the statute in question purports to author- 
ize the expenditure of money raised by taxation in a manner pro- 
hibited by this article, and is therefore unconstitutional. 

I assume that by the word " academy " is meant a school, incor- 
porated or otherwise, which is not under the control of the munic- 
ipal authorities. If the control is vested in the town to such an 
extent that it is " conducted according to law, under the order and 
superintendence of the authorities of the town," then it becomes a 
public school, and tuition may not be collected from the children 
of the town in whose control it is vested ; but if the control of the 
school is not vested in the authorities of the town, it is a private 
school, against which the prohibition of the constitutional amend- 
ment was plainly directed. 

Pub. Sts., c. 44, § 2, provides that " every town may, and every 
town containing five hundred families or householders, according 
to the last public census taken by the authority either of the 
Commonwealth or of the United States, shall, besides the schools 
prescribed in the preceding section, maintain a high school," etc. 
It has been held by the Supreme Judicial Court (Jenkins v. 
Andover, 103 Mass. 94, 97, 98) that high schools are a part of 
the system of public schools which the towns of the State may 
be required to provide for and maintain. The Legislature, how- 
ever, has seen fit not to require of certain small towns the duty of 
maintaining high schools. The obvious purpose of St. 1895, c. 
94, is to provide a means of high-school education for the children 
of such towns. This purpose is accomplished by authorizing 
the payment of money raised by taxation for the high-school 
education of the children in any such town in a private educa- 
tional institution of equal or higher grade, which is approved by 
the State Board of Education. 

The academy so approved, therefore, becomes in such a town a 
part of the system of education of the children of the town. It 
takes the place of the high school. For all practical purposes it is 
the high school of the town, supported, so far as the pupils of the 



1898.] PUBLIC DOCUMENT — No. 12. 3 

town are concerned, by money raised by taxation. But it is still 
a school which is not "under the order and superintendence of 
the authorities of the town or city in which the money is to be 
expended." 

It is of no consequence that the tuition of such pupils may not 
be paid from money especially appropriated by the town for the 
support of its public schools. The question is not one of mere 
appropriation. The purpose of the constitutional amendment was 
to prohibit the use of public funds for the education of the 
children of the Commonwealth in any institution, however con- 
ducted, and whether sectarian or not, the control of which is not 
in the municipal authorities. If the expenditure be for the pur- 
pose of the education of the children of the town, it is within the 
spirit of the prohibition of the amendment. Jenkins v. Andover, 
103 Mass. 94. 

Undoubtedly the statute in question may be in some cases of 
great benefit to the children of small towns, and, incidentally, to 
the tax payers of the towns, who are thus relieved from the dis- 
proportionate expense of maintaining a high school established for 
the benefit of a few pupils. The question, however, is not to be 
determined by considerations of mere convenience in special 
cases. If this statute is allowed to stand, the policy of paying 
the tuition of school children may be further extended, and it 
might even be possible to provide for the education of all the chil- 
dren of a town in sectarian schools and at the public expense ; a 
proposition which the people of the Commonwealth would be slow, 
I apprehend, to accept, and against which, indeed, the amendment 
in question may be said to have been principally directed. 

2. For the reasons already stated, I am of opinion that it 
would be unconstitutional for a town to grant and vote money to 
pay the tuition of children attending an academy outside of said 
town. 

Very respectfully yours, 

Hosea M. Knowlton, Attorney- General. 



A bill conferring authority upon a cemetery association to take land by 
right of eminent domain, said association being subject to § 3, c. 82, 
Pub. Sts. , is unconstitutional. 

Mat 5, 1896. 

Hon. George v. L. Meyer, Speaker of the House of Representatives. 

Dear Sir : — At the request to the committee on rules, I have 
examined the bill entitled "An Act to enable the Central Cemetery 
Association of Randolph to take and hold additional real estate." 



4 ATTORNEY-GENERAL'S REPORT. [Jan. 

This is a bill authorizing the selectmen of the town of Ran- 
dolph, upon the request of the directors of the Central Cemetery 
Association, to take a tract of land by right of eminent domain, 
to be used by the cemeteiy association as a part of its burial 
ground. I understand the question upon which you request my 
opinion is as to the constitutionality of the bill. 

The Central Cemetery Association was incorporated by St. 
1878, c. 96, which provides that the corporation shall " have all 
the powers and be subject to all the duties, restrictions and lia- 
bilities set forth in all general laws which now are ... in force 
applicable to similar corporations." Pub. Sts., c. 82, relates to 
cemetery corporations. It provides that ten or more persons who 
are desirous of establishing a cemetery, or the majority of the 
proprietors of an existing cemetery, may organize as a corpora- 
tion. Section 2 provides that every such corporation may take 
and hold real and personal estate, such as may be necessary for 
the objects of the corporation, " may lay out such real estate into 
lots ; and upon such terms, conditions, and regulations as it shall 
prescribe, may grant and convey the exclusive right of burial in 
and of erecting tombs or cenotaphs upon any lot, and of orna- 
menting the same." Section 3 provides that such lots shall be held 
indivisible, and upon the decease of a proprietor his heirs or 
devisees shall succeed to his privileges. 

It follows, therefore, that, if the Central Cemetery Association 
is permitted to take land for the purposes of a cemetery, the land 
so taken will be its property, within its exclusive control, and 
which it may hold or grant to such individuals as it pleases for 
their own exclusive use, and under such restrictions as it may im- 
pose. There is no public right of burial in its cemetery. 

I understand that it is claimed that this association has adopted 
a policy under which all persons, without discrimination, have the 
right to purchase burial lots. But the question of public use can- 
not thus be determined. The rights of the public cannot depend 
upon the liberality of individuals or of corporations. However 
generous the policy may be, it still remains a use by the public as 
matter of grace and not of right. If, under its charter and the 
laws applicable thereto, it may, if it sees fit, discriminate, there is 
no right of public use. 

The right of eminent domain can only be exercised for the ben- 
efit of the public. The Declaration of Rights, Art. X., expressly 
limits the right of taking the property of private citizens to cases 
where it is appropriated " to public uses." For example, it has 
been held that under the authority of the Legislature land may be 



1898.] PUBLIC DOCUMENT— No. 12. 5 

taken for a railroad, a sewer, a school-house, a highway, a post- 
office, a park or for water works, or the abatement of a nuisance. 
In each class of cases enumerated, and in all others in which the 
right of eminent domain has been upheld, the taking is for a use 
in which all citizens have the right, under reasonable conditions, to 
share, aud the benefits of which they may enjoy. This is the con- 
dition of the right of taking the land of a private citizen. This 
test has always been applied when the attempt has been made to 
invade the rights of private property. 

Pub. Sts., c. 82, §§ 10-14, provide that " when there is a 
necessity for a new burial-ground in a town, or for the enlarge- 
ment of a burial-ground already existing in and belonging to a 
town," the land of a private citizen may be taken therefor. But 
these sections relate wholly, as will be seen, to cemeteries belong- 
ing to a town, and which, therefore, are for the use of all citizens 
of a town. This statute has been upheld by the court as within 
the authority of the Legislature. But there is no statute authoriz- 
ing the taking of land by the right of eminent domain by a ceme- 
tery association, nor is there any decision of the court indicating 
that such authority would be upheld as constitutional. 

Some confusion of thought has arisen over the peculiar status 
of burial grounds, and the sacredness with which they are prop- 
erly regarded. The customs of civilized society not only sanc- 
tion, but require, the burial of the dead. The same customs 
forbid that land which has been so appropriated, shall afterwards 
be used for any other purpose ; and it has been uniformly held that 
there is no authority but an act of the Legislature that can author- 
ize an encroachment for other purposes upon a tract of land which 
has been dedicated to burial purposes. Once used as a cemetery, 
the land so used is perpetually devoted to the purposes of burial, 
and cannot be sold or appropriated to other uses. Mt. Auburn 
Cemetery Association v. Cambridge, 150 Mass. 12, 17. 

In Evergreen Cemetery Association v. City of New Haven, 43 
Ct. 234, it was held that land which had been appropriated to the 
purposes of burial could not be taken for a public street, under the 
general power given to towns and cities to take land for such a 
purpose, but that there must be authority specially granted by the 
Legislature. In this case it was said by the court (on page 241) 
that " the use of land for a burial ground is a public use, and for 
such purpose it may be taken, if need be, under the right of emi- 
nent domain." But the sentence quoted was not necessary to the 
decision, and must be regarded as obiter dictum. All that the 
decision of the court required was the position that the sanctity of 



6 ATTORNEY-GENERAL'S REPORT. [Jan. 

burial grounds could not be invaded for other uses, public or pri- 
vate, without the direct authority of the Legislature. And in a 
subsequent suit between the same parties (53 Ct. 552), in which 
the corporation, apparently relying upon the dictum in the former 
opinion, undertook to acquire the land of the defendant by right 
of eminent domain, it was clearly held that no such right could be 
given to a corporation unless the cemetery was one in which there 
was a public right, to the extent, at least, that " all persons have 
the same measure of right for the same measure of money." 

But this dedication of land for burial purposes to the extent that 
it must thereafterwards be used only for such purposes and for no 
other is very far from being a " public use," as that expression is 
used with reference to the taking of land by the right of eminent 
domain. It may well be that, however dedicated, whether by pub- 
lic or private act, land once appropriated to the purposes of burial 
must be regarded as sacred, and not to be used for any other pur- 
pose whatever, excepting by authority of the Legislature. This, 
however, is not because it has been devoted to public uses, but 
from the peculiar nature of the use to which the land has been 
applied. 

It cannot be said that a cemetery, the use of which is controlled 
by an individual or a corporation, rights of burial in which may be 
limited or prohibited at the pleasure of the corporation owning 
the land, or of the owners of lots therein whose rights have been 
obtained from the original proprietors, is devoted to a public use. 
It is still private in its nature. The public have no rights in it 
whatever. The use of it may be confined to persons of a par- 
ticular religious faith, or even to the original incorporators. It is 
not a public use, because the right of burial is not vested in the 
public, or in the public authorities. In re Deansville Cemetery 
Assn. 66 N. Y. 569. 

In my opinion, therefore, the Legislature has not the authority 
to grant to a cemetery association, however deserving, or however 
liberal the policy of its management, the right to take the land 
of private citizens without their consent. I am aware that such 
acts have been passed by the Legislature heretofore, and my atten- 
tion has been expressly called to Sts. 1888, c. 185, which was an 
act similar in its purposes to the present bill. But I am not aware 
that the question now presented has been raised or passed upon. 
Very truly yours, 

Hosea M. Knowlton, Attorney- General. 



1898.] PUBLIC DOCUMENT — No. 12. 7 

The aids employed by the State Fire Marshal are not entitled to witness 
fees while attending the trial of a criminal case. 

Jan. 9, 1897. 
Charles W. Whitcomb, Esq., Fire Marshal. 

Dear Sir: — Pub. Sts., c. 199, § 36, provides that "no per- 
son employed as a district police officer, and no officer of the State 
whose salary is fixed by law, shall be entitled to a witness fee 
before any court or trial justice of this Commonwealth in a cause 
where the Commonwealth is a party." In some cases the word 
"officer," as used in the penal statutes, includes only officers 
authorized to serve process ; but, in my opinion, the section the 
language of which I have quoted gives to the word a broader sig- 
nification, and is to be construed according to the usual and 
obvious signification of the words used. 

The salaries of your aids are fixed by St. 1895, c. 452, § 1. 
They are officers of the State, because the positions are created 
by the Legislature and their compensation is payable from the 
treasury of the Commonwealth. They are, therefore, not entitled 
to witness fees. 

Yours very truly, 

Hosea M. Knowlton, Attorney- General. 



Under the provisions of Pub. Sts., c. 89, § 22, a court or magistrate is not 
authorized to place juvenile offenders in the custody of the State 
Board of Lunacy and Charity except upon its request. 

Jan. 11, 1897. 
S. C. Wrightington, Esq., Superintenderit. 

Dear Sir : — Confirming my oral opinion to you given this day 
in reply to the question contained in your letter of the 8th, I have 
to say that in my opinion Pub. Sts., c. 89, § 22, which provides 
that the court or magistrate before whom a boy or girl is brought 
"upon request of the state board may authorize said board to 
take and indenture . . . such boy or girl," does not authorize 
such courts to place juvenile offenders in the custody of the State 
Board of Lunacy and Charity excepting upon its request. The 
object of the statute is to authorize the Board to become practi- 
cally guardians of such offenders whenever in its judgement their 
welfare will be thereby promoted. The discretion as to whether it 
shall assume such duties is vested in the first instance in the 
Board, and if it does not desire to assume the charge of the boy or 
girl, the court has no right to impose the duty. 
Yours very truly, 

Hosea M. Knowlton, Attorney-General. 



ATTORNEY-GENERAL'S REPORT. [Jan. 



At a meeting of the Hampden Agricultural Society, at which proceedings 
were held for the election of a member of the State Board of Agricult- 
ure, the balloting resulted as follows : the whole number of votes 
cast was 46, of which B had 41, F 4 and PI. Of the votes cast for 
B, 39 were cast by proxy. 

There being no provision in the charter or by-laws of the society regulat- 
ing the mode of voting by proxy, or conferring the right so to vote, 
no member had such right; and, since no quorum voted, the votes cast 
by proxy being thrown out, no person was duly elected by said society 
as a member of the State Board of Agriculture. 

Jan. 16, 1897. 
Hon. William R. Sessions, Secretary. 

My Dear Sir : — In obedience to your request for my opinion 
upon the legality of the proceedings of the Hampden Agricultural 
Society in electing a member of the State Board of Agriculture, I 
beg leave to reply as follows : — 

Pub. Sts., c. 20, § 1, provides that certain other persons and 
"one person appointed from and by each agricultural society" 
shall constitute the State Board of Agriculture. 

The Hampden County Agricultural Society is one of those 
described in Pub. Sts., c. 114, § 1. Section 9 of the same act 
provides that it " shall admit as members, upon equal terms, 
citizens of every town in the county in which it is located." 

The Hampden Count} 7 Agricultural Society was incorporated by 
a special act, St. 1844, c. 56. It is not a stock company, and 
there is no capital stock. The constitution provides in Art. 3 that 
u any male may become a member of this society by paying to its 
treasurer the sum of five dollars ; females by the payment of two 
and fifty one-hundredths dollars." Art. 4 provides that ten mem- 
bers shall constitute a quorum. Art. 5 provides for the election 
of officers, and further provides as follows : "all of whom shall be 
elected by ballot or otherwise, as the society shall direct, at the 
annual meeting." There is no provision with regard to the mode 
of election of the member of the State Board. By-laws, Art. 8, 
provide that the delegate to the State Board of Agriculture shall 
be a member ex officio of the board of directors. 

The annual meeting of this society was duly called and held 
Nov. 18, 1896. The records do not show the number present. 
The presiding officer states that a quorum was in fact present. 
The election of president was first had, and the records show whole 
number of ballots cast 49, of which Abbe had 42 and Sanford 7. 
At this stage of the proceeding the tellers reported that, of the 49 
ballots cast, 39 of them were represented by proxies, which were 
placed on file. Abbe was declared elected. Ballot for two vice- 



1898.] PUBLIC DOCUMENT — No. 12. 9 

presidents was recorded as follows : whole number of votes cast, 
including 39 proxies, 48 ; Hawkins and Wright each had 42, Porter 
had 5, Smith had 4, 2 scattering. The first two were declared 
elected. The treasurer was chosen by viva voce vote, also the 
secretary, without opposition. Balloting for the member of the 
State Board resulted as follows : whole number of ballots cast, in- 
cluding 39 proxies, 46 ; Bernie had 41, Fowler 4, William H. Por- 
ter 1. Bernie was declared elected. 

No protest against the use of proxies was made until the close 
of the meeting, when Mr. Clark of Wilbraham said that he be- 
lieved the proceedings were illegal and void ; that proxies had never 
been used before to his knowledge in the election of officers ; and 
he entered his protest. 

An examination of the proxies shows that they were written for 
the most part on forms usually used for stockholders of corpora- 
tions, signed and witnessed, and were made to George H. Gould, 
who voted upon them in each instance for the person declared 
elected. 

The general rule is that, in the case of elections in public and 
municipal corporations and in all other elections of a public nature, 
every vote must be personally given ; but in the case of moneyed 
corporations, instituted for private purposes, it has been held that 
the right of voting by proxy may be delegated by the by-laws of 
the ~ institution where the charter is silent. 2 Kent Com. 294, 
295. By another eminent authority it is held that the members of 
the corporation must vote personally, and cannot lawfully vote 
by proxy unless the right to vote by proxy is expressly conferred 
by the company's charter or by-laws. 1 Morawetz on Private 
Corporations, 2d ed. sec. 486. 

I know of no express authority on the subject in Massachusetts ; 
but Pub. Sts., c. 105, § 5, provides that " every corporation may 
by its by-laws, where no other provision is especially made, deter- 
mine the mode of voting by proxy." In section 1 of the same 
chapter it is said that " the provisions of this chapter, unless ex- 
pressly limited in their application, shall apply to all corporations 
organized under or by the laws of this Commonwealth." 

The provisions of section 1 are sufficient to include such a cor- 
poration as the Hamden Agricultural Society. It is, therefore, 
bound by the provisions of section 5. No by-laws have been made 
which regulate the mode of voting by proxy, or which confer the 
right so to vote. In the absence of such by-law it is clear that 
under the statutes no member has the right to vote by proxy. 
This is also in accordance with the general principles of law as 
above stated. 



10 ATTORNEY-GENERAL'S REPORT. [Jan. 

The person who was elected at the annual meeting of the society 
by proxy votes was, therefore, not duly chosen. 

It would seem further that no one was chosen, for, if the proxies 
be thrown out, no quorum seems to have voted. 

It follows that no person was duly elected a member of the 
State Board of Agriculture. 

This opinion does not deal with the duties of the State Board in 
the premises. Upon this question different considerations may 
arise, which need not be at present discussed. 
Yours very truly, 

Hosea M. Knowlton, Attorney- General. 



Veteran. — Honorably discharged soldier. — Funeral expenses. — Sts. 
1896, c. 279. 

A person having enlisted and served in the United States army during the 
war of the rebellion, and having been honorably discharged therefrom, 
enlisted again before the end of the war and deserted. 

Such a person does not come within the provisions of Sts. 1896, c. 279, 
providing that certain persons having served in the war of the rebel- 
lion shall be buried at the public expense. 

Jan. 16, 1897. 
Maj. Gen. Samuel Dalton, Adjutant- General 

Dear Sir: — St. 1896, c. 279, provides that "any honorably 
discharged soldier, sailor or marine, who served in the army or 
navy of the United States during the war of the rebellion," who 
dies without leaving sufficient means to defray his funeral 
expenses, shall be buried at the public expense. This statute is 
one of a series of acts passed by the Legislature in recognition of 
the services of veterans in the war of the rebellion. Other 
statutes have provided that veterans shall be preferred in appoint- 
ments to office. All these acts without doubt have in mind the 
same class of persons, and are based upon the same considera- 
tions. St. 1896, c. 517, which is an act relative to the employ- 
ment of veterans in the public service, defines in section 1 the 
word "veteran" as meaning "a person who served in the army 
or navy of the United States in the time of the war of the rebel- 
lion, and was honorably discharged therefrom." The language 
used in this definition of the word veteran is equivalent to that 
employed to designate the persons who may be buried at the 
public expense. 

The plain intent of these acts, including that in relation to the 
burial of veterans, is to recognize the debt of gratitude due to 
those who served in the army in the war of the rebellion faithfully 
and honorably, and deserved well of their country. Opinion of 



1898.] PUBLIC DOCUMENT — No. 12. 11 

the Justices, 166 Mass. 589, 595. None of them were intended 
to include those who served dishonorably, or who failed in the 
performance of their duty. The words " honorably discharged " 
are used to restrict the recognition accorded by these statutes to 
soldiers who performed their duty, and whose honorable discharge 
is therefore to be taken as evidence of that fact. 

This being so, the words ''honorably discharged" can only 
fulfil the intent of the Legislature when they are taken to mean 
"(finally) honorably discharged." One who enlisted for a term 
of service and was honorably discharged therefrom, and who then 
enlisted again and deserted, was not finally honorably discharged, 
and is not within the class of persons whom the Legislature 
intended to recognize and reward. He was not faithful to his 
duty. The literal meaning of the words of the act undoubtedly 
apply to his case, for he was a soldier in the war of the rebellion 
and was honorably discharged. Statutes, however, are not 
always to be construed literally, especially when such construction 
is plainly against the intent of the Legislature. The honorable 
discharge in the case put was before the whole term of service in 
the war of rebellion was complete. Before the completion of that 
entire term he failed in the performance of his duty, and is not 
therefore within the class entitled to be rewarded. 

I am of opinion, therefore, that in the case you put, to wit, of a 
man who enlisted and was honorably discharged, and before the 
end of the war enlisted again and deserted, does not come within 
the provisions of St. 1896, c. 279. 
Yours very truly, 

Hosea M. Knowlton, Attorney- General. 



Expenditure by counties. — Power of county treasurer. —Bills incurred 

in one year, but paid after the expiration thereof. 
Bills for any specific county purpose incurred during a given year may be 

paid out of the appropriation for that year, whether before or after 

the 1st of January of the succeeding year. 

Jan. 16, 1897. 

Charles R. Prescott, Esq., Controller of County Accounts. 

Dear Sir : — The question stated in your letter of January 9 is 
this. A certain sum of money is appropriated for a specific 
county purpose for the year 1896. Can the county treasurer, on 
the order of the county commissioners, after Jan. 1, 1897, law- 
fully pay a bill incurred for that purpose during the year 1896 out 
of the appropriation for that year? The second question is the 



12 ATTORNEY-GENERAL'S REPORT. [Jan. 

same in effect, although it assumes that the books of the treasurer 
have been closed before the bill is ordered paid. 

There can be no possible doubt that bills for any specific county 
purpose incurred during a given year may be paid out of the 
appropriation made for that year, whether before or after the 1st 
of January of the succeeding year, and whether before or after the 
closing of the books of the treasurer. While the law limits the 
incurring of the expenditure to the year for which the appropria- 
tion is made, it does not limit the time of payment. If money 
remains in the hands of the treasurer out of the appropriation, he 
may pay the bill upon the order of the commissioners out of that 
appropriation whenever it comes in, provided the expenditure was 
incurred during the year of the appropriation. 

In view of the above, your third question does not require to be 
answered. 

Yours very truly, 

Hosea M. Knowlton, Attorney -General. 



Fraternal beneficiary corporation. — Right of member to vote by proxy. — 

By-laws providing for voting by proxy. St. 1894, c. 367. 
The members of a fraternal beneficiary corporation may not vote at its 

meetings by proxy, in the absence of any by-law of the corporation to 

that effect. 
Such corporation may, however, by its by-laws determine the mode of 

voting by proxy. 

Jan. 23, 1897. 
Hon. George S. Merrill, Insurance Commissioner. 

Dear Sir: — Your letter of Jan. 20 requests my opinion as to 
whether, under St. 1894, c. 367, members of a fraternal benefi- 
ciary corporation can vote at the meetings of the corporation by 
proxy. 

In the absence of any by-law to that effect, proxies cannot be 
used. But I understand from an oral interview that you further 
desire to know whether such companies may establish by-laws 
which shall provide for voting by proxy. 

I have recently considered the subject of proxy voting in an 
opinion to the Board of Agriculture (p. 8). The statutes of the 
Commonwealth clearly recognize the right of voting by proxy, 
under certain conditions. As to many corporations it is either 
specifically authorized or specifically limited as to the number of 
proxies. Vid. as to manufacturing corporations, Pub. Sts., c. 
106, § 27; as to railroad corporations, Pub. Sts., c. 112, § 54; 
street railway corporations, Pub. Sts., c. 113, § 12; as to banks, 



1898.] PUBLIC DOCUMENT — No. 12. 13 

Pub. Sts., c. 118, §10; as to stock insurance companies, Acts 
1894, c. 522, § 32 ; and as to mutual companies, Acts 1894, c. 
522, §§ 40 and 74. 

There is nothing in the statute concerning the incorporation of 
fraternal beneficiary organizations (Sts. 1894, c. 367) which 
authorizes voting by proxy; but Pub. Sts., c. 105, " of certain 
powers, duties and liabilities of corporations," is declared in sec- 
tion 1 to be applicable " to all corporations organized under or by 
the laws of this Commonwealth, except so far as they are incon- 
sistent with other provisions of these statutes concerning particu- 
lar classes of corporations." Section 5 of this chapter provides 
that " every corporation may, by its by-laws, where no other 
provision is specially made, determine . . . the mode of voting 
by proxy." 

Inasmuch as the provisions of this chapter are applicable to all 
corporations organized under the laws of Massachusetts, they must 
be taken to be applicable to fraternal beneficiary organizations. 
Such corporations may, therefore, by their by-laws determine the 
mode of voting by proxy. 

Yours very truly, 

Hosea M. Knowlton, Attorney-General. 



License to fill flats. — Transfer of license. — Rights in sea-shore. — Tide 
waters. — History of legislation. — Pub. Sts., c. 19. 

A license to fill flats in tide water, granted by the Board of Harbor and 
Land Commissioners under the provisions of Pub. Sts., c. 19, is not 
a personal trust, but the rights conferred by it pass with the property 
to which it relates, and are not terminated by the death of the licensee 
or the transfer of the property. 

Jan. 25, 1897. 
Hon. Woodward Emery, 

Chairman Board of Harbor and Land Commissioners. 

Dear Sir : — Your letter of December 4 requests my opinion 
upon the following question, to wit: " When a license to fill upon 
flats in tide water within certain bounds has been granted to a 
person under the provisions of Pub. Sts., c. 19, does the death 
of the licensee or the transfer of the property terminate the 
license? Would the purchaser of the land have a right to fill 
under that license, in the absence of any attempt to assign the 
license to the purchaser and an assent thereto by the Board ? " 

By the common law of England the soil of the shore between 
high and low water marks, and all arms of the sea, coves and 
creeks, where the tide ebbs and flows, are the property of the 



14 ATTORNEY-GENERAL'S REPORT. [Jan. 

sovereign, unless appropriated to a private person by grant or 
prescription. 

The company which undertook the settlement of Massachusetts 
was made a body politic by the letters-patent and charter of 
Charles I., having absolute property in the land within the limits 
of the charter, the power of making laws for the government of the 
colony, and full dominion over all ports, rivers, creeks and havens, 
in as full and ample a manner as they had before been held by the 
crown of England. 

Among the earliest acts of legislation in Massachusetts was an 
exercise of sovereignty with respect to the shore or flats of coves, 
etc., occasioned by the desire and necessity for wharves, quays 
and piers. To encourage the building of such structures, the 
government, by the Colony ordinance of 1641-47, transferred its 
property in the shore of all creeks, coves and other places upon 
the salt water where the sea ebbs and flows to the proprietors of 
the upland, giving to them in fee the property of the soil to low- 
water mark not exceeding one hundred rods. But by this grant 
those who acquired this property were restricted from such use of 
it as would impair the public right of passing over the water in 
boats, and other vessels through any sea, creeks or coves, to other 
men's houses or lands. Under this statute the owner of flats 
could lawfully erect nothing on them which would obstruct or 
hinder such passage, though he might build wharves toward the 
sea, if he did not thereby straighten or interrupt the passage over 
the water so as to constitute a public nuisance. Shaw, C. J., 
in Com. v. Alger, 7 Cush. 77, quoting Com. v. Charlestown, 1 
Pick. 180. 

This ordinance vested the property of the flats in the owners of 
the upland in fee, to be held subject to a general right of the 
public for navigation until built upon or enclosed ; and subject 
also to the reservation that it should not be built upon or enclosed 
in such manner as to impede the public right of way over it for 
boats and vessels. Shaw, C. J., ibid., p. 79. 

The rights of the owners of flats are limited by and subservient 
to the general rights of the public, to have control over the shores 
of the sea and navigable waters, for the security and protection of 
rights of navigation. These rights, held by the king before the 
revolution, in trust for the public, and relinquished after the 
Declaration of Independence, vested in the several States, to be 
exercised by their respective Legislatures. They are founded on 
the consideration that all real estate derived from the government 
is subject to certain restraints for the general good, and that sea- 
shore estate, though held in fee by the riparian proprietors, is yet, 



1898.] PUBLIC DOCUMENT — No. 12. 15 

on account of the peculiar nature and character, position and rela- 
tion of the estate, and the great public interests associated with it, 
especially subject to the exercise of the rights of the public. 
Shaw, C. J., in Com. v. Alger, 7 Cush. 95. To declare and 
protect these rights the Legislature has power by a general law 
affecting all riparian proprietors to make reasonable regulations, 
declaring the public right, and providing for its preservation by 
reasonable retraints, and to enforce these restraints by reasonable 
penalties. Henry v. Newburyport, 149 Mass. 582, at p. 585; 
Attorney-General v. B. & L. R.R., 118 Mass. 348. 

Before the passage of the statute requiring a license to be pro- 
cured for the filling of flats in tide waters the owner of flats might, 
unless prohibited by the Legislature, reclaim them by building 
wharves or otherwise so as to exclude navigation, provided he did 
not wholly cut off his neighbors' access to their houses or lands. 
Note to Com. v. Roxbury, 9 Gray, 451, 519, and cases cited; 
Shively v. Bowlby, 152 U. S. 1, 18, et seq. For a case where flats 
were so filled upon by the owner apparently without a license or 
other authority from the Legislature, vid. Henshaw v. Hunting, 
1 Gray, 203 (1854) ; vid. also Kean v. Stetson, 5 Pick. 492, 495. 

The first general statute abridging this right to fill upon flats, 
or erect structures on soil beneath tide waters owned by private 
persons, was St. 1866, c. 149. It is true that by an earlier stat- 
ute, Res. 1859, c. 103, it was provided that riparian owners desir- 
ing to use their property by extending wharves or otherwise might 
buy from the Commonwealth the right so to do ; but no express 
prohibition was placed upon filling upon flats, etc., without buy- 
ing such right or without license. Apparently any one so filling 
upon flats did so at his peril, and was liable to indictment if the 
work interfered with the means of access to other persons' lands. 
This statute of 1866 provided for the appointment of five persons, 
to constitute a Board of Harbor Commissioners, to have " the gen- 
eral care and supervision of all the harbors and tide waters, and 
of all the flats and lands flowed thereby within the Commonwealth 
... in order to prevent and remove unauthorized encroachments 
and causes . . . liable to interfere with the full navigation of said 
harbors ... or cause any reduction of their tide waters." 

The Board was also empowered to prescribe harbor lines, — an 
authority previously granted to another commission, Res. 1864, 
c. 46. By section 4 it was enacted that all persons that might 
have been or might be authorized by the Legislature to build over 
tide waters any bridge, etc., or to fill upon any flats, should notify 
the Board of the plan of work they proposed to adopt, and no such 
work should be begun until the said plan was approved by a 



16 ATTORNEY-GENERAL'S REPORT. [Jan. 

majority of the Board. By section 5 of the said statute all erec- 
tions and works made after the enactment of the act without 
authority from the Legislature, or in any manner not sanctioned 
by the Board where their direction was required, within tide waters 
flowing into or through any harbor, were declared a public nui- 
sance and liable to indictment. 

The obvious reasons for the enactment of this statute were the 
growth of commerce, the tendency to fill upon flats and erect 
wharves, as had been the custom, without the authority of the 
Legislature, and the necessity of protecting the waters of harbors. 
Attorney-General v. B. & L. R.R., 118 Mass. 348-9. The right 
upon which the Legislature acted in passing the statute was 
undoubtedly the right mentioned above, viz., that of regulating the 
use and control of the shores of navigable waters for the protection 
of public interests depending upon free and uninterrupted oppor- 
tunities for navigation. This statute required the procuring of a 
license from the Legislature for filling upon flats, whether or not 
such filling would cut off other persons' access to their houses or 
lands. To require the action of the Legislature must have been 
felt to be an inconvenience which was remedied b} T St. 1872, c. 
236, § 1, referred to later. 

The next statute relating to this subject is St. 1869, c. 432, 
which prescribed certain conditions to be attached to all licenses 
thereafter granted to fill upon flats ; among others, that they should 
be revocable by the Legislature at any time, and should expire at 
the end of five years from their date, except where valuable struct- 
ures had actually been built. 

St. 1872, c. 236, § 1, was enacted apparently to relieve the Leg- 
islature of the duty of granting licenses to fill upon flats, etc., in 
tide waters, and to impose such duties upon the Harbor Commis- 
sioners. Section 1 of this statute provided that " any person may 
build or extend a wharf, or construct a pier, dam, sea-wall, road, 
bridge or other structure, fill land or flats, or drive piles in or over 
tide water below high-water mark, within the line of riparian 
ownership, on any shore, and within whatever harbor lines there 
may be at the time established by law along such shore ; provided, 
the license of the board of harbor commissioners is first obtained 
in a manner provided by the fourth section of chapter one hundred 
and forty-nine of the acts of the year eighteen hundred and sixty- 
six." The statute further provided (section 2) for the granting 
of licenses to fill upon flats, etc., beyond the line of riparian own- 
ership where harbor lines had been established, the license to set 
forth the terms and specify the limits, etc., of the work to be per- 
formed. The power to grant such licenses beyond the line of 



1898.] PUBLIC DOCUMENT — No. 12. 17 

riparian ownership where no harbor line had been established, was 
also given to the said board by St. 1874, c. 347, subject to cer- 
tain restrictions. 

The later statutes relating to this subject are St. 1877, c. 213, 
changing the organization of the Board of Harbor Commissioners, 
but making no change in their powers and duties; St. 1879, c. 
263, again changing the organization, consolidating the boards of 
Harbor and of Land Commissioners into one Board, to exercise the 
powers conferred upon each Board, and to be called the Board of 
Harbor and Land Commissioners ; and St. 1878, c. 74, requiring 
the amount of tide water displaced by filling upon flats, etc., to be 
ascertained and compensation to be made. 

In the Public Statutes the acts referred to above appear as fol- 
lows : — 

St. 1866, c. 149, § 2, defining the general powers of the com- 
mission, substantially corresponds to Pub. Sts., c. 19, § 6 ; section 
3 of said statute to Pub. Sts., c. 19, § 7 ; section 4 (first half) to 
Pub. Sts., c. 19, § 8. Pub. Sts., c. 19, § 9, is constructed from 
St. 1872, c. 236, §§ 1 and 2, and St. 1874, c. 347. 

I have thus reviewed the history of legislation respecting tide 
waters and flats between high and low water marks, for the reason 
that it has, in my judgment, an important bearing in the deter- 
mination of the question proposed. At common law a license, so 
far as the word concerns real estate, is an authority to do a partic- 
ular act upon land of another without acquiring any estate therein, 
and is terminated at the death either of the licensor or licensee, 
and may not be assigned without the assent of the licensor. Cook 
v. Stearns, 11 Mass. 533 ; Johnson v. Carter, 16 Mass. 443 ; Rug- 
gles v. Lesure, 24 Pick. 187 ; Hodgkins v. Farrington, 150 Mass. 
19. The statutes of Massachusetts, however, provide for the 
granting of many classes of licenses, as to some of which the act 
licensed is regarded as a personal trust and therefore unassignable, 
while as to others it has been held that the right to do the act for 
which the license is granted may be assigned without the assent of 
the authority granting the license. Examples of the first class are 
licenses to sell intoxicating liquor, and to carry on the business of 
an innholder. As to such cases, it is obvious that the principal 
thing to be considered in the granting of the license is the charac- 
ter of the person to whom the trust is committed. As to these the 
rules of common law prevail, and they may not be assigned with- 
out consent. 

On the other hand, it has been held that a license to set up and 
run a stationary steam engine may be assigned at the will of the 
licensee. Quinn u.j Middlesex Electric Light Co., 140 Mass. 



18 ATTORNEY-GENERAL'S REPORT. [Jan. 

109. The opinion in the case quoted is brief, and the reasons of 
the decision reached are not given. But it is obvious that the rea- 
son for requiring a license for the running of a steam engine in 
thickly populated places is that those living near the place where 
the engine is established, as well as the general public, are con- 
cerned in the question whether the setting up and maintaining of a 
steam engine is hazardous. The license is granted not as a per- 
sonal trust, but upon consideration of the fact that it is deemed by 
the licensing authority not to be dangerous to the community to 
operate a steam engine in the locality for which the license is 
granted. 

Applying these distinctions to the question proposed, it is 
obvious that licenses to fill upon flats between high and low water 
marks belonging to that class where the principal consideration is 
the rights of the public, rather than the character of the licensee. 
As has already been shown by the history of the legislation upon 
the subject, the purpose of committing to your Board the jurisdic- 
tion of granting or refusing such licenses is so to regulate the 
filling upon flats by riparian proprietors that the rights of the pub- 
lic, and of adjoining riparian owners, may be preserved. Gray, 
C. J., in Attorney-General v. Boston & Lowell R. R., 118 Mass. 
348, 349 ; Attorney-General v. Cambridge, 119 Mass. 518; Attor- 
ney-General v. Woods, 108 Mass. 436, 440. A license to fill 
upon flats is not granted upon any consideration affecting the 
character of the licensee, or as a personal trust to him, but be- 
cause your Board, upon consideration of all the circumstances, is 
of opinion that the acts licensed will not materially interfere with 
the rights of the public or with adjoining riparian owners. Such 
a license is in the nature of a regulation of the use of flats by the 
riparian owner. The statute requires that the extent of the flats 
to be filled upon must be described by metes and bounds, and that 
the method of filling must be determined upon beforehand, and a 
plan filed with the commissioners and recorded in the registry of 
deeds. The period during which the acts licensed may be done is 
limited to five years, and is revocable only by the Legislature. All 
these provisions add to the force of the proposition that the rights 
granted by the license have no necessary connection with the per- 
sonality of the licensee, but are granted as appurtenant to the 
ownership of the soil. For these reasons I am of opinion that the 
license is not to be regarded as a personal trust, but that the rights 
conferred by it pass with the property, and are not terminated by 
the death of the licensee or by the transfer of the property. 
Yours very truly, 

Hosea M. Knowlton, Attorney-General. 



1898.] PUBLIC DOCUMENT— No. 12. 19 



Authority of town to substitute new notes for notes already issued. — St. 
1889, c. 424. 

The town of North Brookfleld, having- issued notes under the authority 
conferred upon it by St. 1889, c. 424, for the purpose of paying the 
expenses incurred under said statute in supplying said town with 
water, has no authority, even with the assent of the Commonwealth, 
the holder of the said notes, to issue new notes in substitution for 
those already existing. 

Feb. 11, 1897. 

Hon. Edward P. Shaw, Treasurer and Receiver- General. 

Dear Sir: — St. 1889, c. 424, is an act to supply the town of 
North Brookfleld with pure water. Section 5 of said chapter 
provides that, for the purpose of paying the expenses and liabil- 
ities incurred under the act, the town may issue from time to time 
notes to an amount not exceeding in the aggregate $100,000. By 
Sts. 1893, c. 326, this amount is increased to $150,000. Said 
section provides for the creation of a sinking fund ; but under sec- 
tion 6, instead of establishing a sinking fund the town may " at 
the time of authorizing said loan, provide for the payment thereof 
in such annual payments as will in the aggregate extinguish the 
same within the time prescribed in this act ; and when such vote 
has been passed, the amount required shall without further vote be 
assessed by the assessors of said town in each year thereafter until 
the debt incurred by said loan shall be extinguished." 

I understand by your letter that the town may desire to substi- 
tute for those notes other notes, so that the annual charge upon 
the town should be less ; and your letter requires my opinion as to 
whether, with the assent of the Commonwealth, which holds said 
notes, such substitution may be made. 

I am of opinion that the town has exhausted the authority to 
borrow money given it by said act. New notes cannot be issued 
without vote of the town ; and there is no authority for the town to 
vote to issue such new notes. The town having exercised the 
authority given by the act to issue its notes, it has thereupon 
become the duty of the assessors to assess the amounts due upon 
said notes each year. No different arrangement can be made 
which will be binding upon the town excepting by authority of the 
Legislature. 

Ordinarily, a debtor and creditor may agree between themselves 
to postpone payment of a debt, and to substitute new notes, or 
evidences of indebtedness, in place of those existing ; but a town 
can only issue its notes in pursuance of legislative authority. Its 
authority in respect to the expenses incurred by the introduction 
of pure water has been exhausted. Notes to the full amount of 



20 ATTORNEY-GENERAL'S REPORT. [Jan. 

such expenses have been issued, by vote of the town, and the pay- 
ment of them has been provided for. Only the Legislature, 
which created, has power to alter the situation. 
Yours very truly, 

Hose a M. Knowlton, Attorney -General. 



Authority of savings bank to spend money for bank building. — St. 1894, 
c. 317, § 21, par. 8. 

The provisions of St. 1894, c. 317, § 21, par. 8, authorizing a savings 
bank to invest five per cent, of its deposits, but not exceeding 
$200,000, in a suitable site and building for the transaction of its 
business, limit the amount which such a bank may spend for such 
purpose, but do not prohibit it from providing for stores, halls, 
business offices, etc., in the structure which it is then authorized to 
erect. 

Feb. 26, 1897. 

Hon. Starkes Whiton, Chairman, 

Board of Savings Bank Commissioners. 

Dear Sir : — I do not think that the St. 1894, c. 317, §21, par. 
8, relating to savings banks, which provides that tw five per cent, 
of the deposits of any such corporation, but not exceeding two 
hundred thousand dollars, may be invested in the purchase of a 
suitable site and the erection or preparation of a suitable building 
for the convenient transaction of its business," is to be con- 
strued as so limiting the bank that it may not provide for stores, 
halls, business offices, etc., in the structure which it is authorized 
to erect under said statute. 

The intent of the statute is to limit the expenditure, not the 
method of occupancy. In many, if not in most cases, it would be 
better judgment to construct a building, part of which could be 

rented. 

Yours truly, 

Hosea M. Knowlton, Attorney -General. 



State paupers. — Pest house. — Expense of nursing. — Keimbursement to 
towns. — St. 1891, c. 153. 

A city or town should be reimbursed by the Commonwealth for all reason- 
able expenses of caring for State paupers sick with dangerous dis- 
eases in a pest-house, and the amount of such reimbursement is not 
limited by the proviso contained in St. 1891, c. 153, to a sum not 
exceeding five dollars per week. 

Feb. 26, 1897. 
Stale Board of Lunacy and Charity. 

Gentlemen : — Your letter of February 9 requests my opinion 
as to whether a hospital for small-pox patients, established under 



1898.] PUBLIC DOCUMENT — No. 12. 21 

the provisions of Pub. Sts., c. 80, §§ 70-83, is u a hospital main- 
tained for the care of the sick," in the sense in which those words 
are used in St. 1891, cT 153. Under the provisions of the sec- 
tions of the Public Statutes above referred to, a town may estab- 
lish within its limits " one or more hospitals for the reception of 
persons having a disease dangerous to the public health." Pro- 
vision is made for the conduct and regulation of such hospitals in 
such way as to prevent the spread of small-pox or other dangerous 
disease. Section 83 provides that " all reasonable expenses . . . 
incurred by the board of health of a city or town, in making the 
provision required by law for a person infected with small-pox or 
other disease dangerous to public health, shall be paid by the 
person himself if able, otherwise ... if he has no settlement, by 
the Commonwealth." Chapter 86, relating to State paupers and 
their removal to the State Almshouse, provides in section 25 that 
no city or town officer shall " send to the (State) almshouse any 
person infected with small-pox or other disease dangerous to the 
public health, or any other sick person whose health would be 
endangered by removal ; but all such persons liable to be main- 
tained by the Commonwealth shall be supported during their sick- 
ness by the city or town in which they are taken sick." Section 26 
of the same chapter as it stood in the Public Statutes provided that 
the expense incurred by maintaining a person under the provisions 
of section 25 should be reimbursed by the Commonwealth. 

Section 26 above referred to was amended by St. 1891, c. 153, 
by the addition of the following proviso, to wit: "provided, that 
when any person liable to be supported by the Commonwealth 
shall have received assistance in a hospital maintained for the care 
of the sick, the entire expense incurred by any city or town for 
said hospital aid, not to exceed five dollars per week, shall be 
reimbursed to said city or town by the Commonwealth in the 
manner herein provided." 

A pest house (as a hospital maintained under Pub. Sts., c. 80, 
§§ 70-83, is commonly called) is undoubtedly " a hospital main- 
tained for the care of the sick." But, if it were the intention of the 
proviso under consideration to modify or limit the provisions in 
Pub. Sts., c. 80, § 83, that " all reasonable expenses . . . incurred 
by the board of health in making the provision required by law for 
a person infected with small-pox" shall be paid by the Common- 
wealth, the language of the proviso is singularly ill chosen. It 
limits the expense of five dollars to cases where the person to be 
supported " shall have received assistance in a hospital maintained 
for the care of the sick," and authorizes the reimbursement to the 
city or town of a sum not exceeding five dollars for the " expense 



22 ATTORNEY-GENERAL'S REPORT. [Jan. 

incurred by any city for said hospital aid." The plain intention of 
this proviso is that when a person afflicted with a dangerous dis- 
ease, or whose condition is such that he cannot be removed, is in 
a hospital, the city or town shall be reimbursed for the hospital 
charges incurred thereby ; but, inasmuch as hospital charges are 
often considerable, no greater sum than five dollars shall be 
allowed. The expression in the proviso, " shall have received 
assistance in a hospital," and " incurred by any city or town for 
such hospital aid," plainly refer to hospitals not maintained by 
the city, but to public or charitable hospitals where a charge is 
made to the city or town for patients placed therein. 

The language of the proviso is not applicable to the case of a 
pest house, where the city does not incur the expense for "hos- 
pital aid," as contemplated in the proviso, but assumes the entire 
charge and expense of caring for the person infected. The stat- 
utes relating to the establishment of pest houses make special and 
extraordinaiy provisions for the care and sequestration of persons 
afflicted with small-pox or other dangerous diseases. They are to 
be cared for, and sequestrated under established regulations from 
possible contact with the community, the Commonwealth under- 
taking to pay the entire expense of such care and sequestration in 
the case of State paupers. The expense of such care and seques- 
tration would ordinarily be very much more than five dollars a 
week ; and the mere cost of maintaining the pest house would be 
but a small portion of the whole charge for nursing and medical 
attendance. If the Legislature of 1891 had intended to limit the 
amount of such expense, apt language would have been employed 
for the purpose. The language of the proviso is not apt for that 
purpose ; but, upon consideration of the language of the proviso 
itself, and taking it in connection with the provisions of Pub. Sts., 
c. 80, it obviously refers to cases where the patient is committed to 
a hospital not maintained by a town, to be supported there at the 
expense of the town. 

This view is strengthened by consideration of section 75 of Pub. 
Sts., c. 80, under which, where diseases like the small-pox break out 
in a town, the board of health therein are obliged " immediately" 
to provide a hospital for the reception and care of persons so 
afflicted ; and when the condition of patients is such that they can- 
not be removed, the house in which they are to be sick is to be 
considered a "hospital," and subject to all the regulations pre- 
scribed for pest houses. Having thus imposed so extraordinary 
and imperative a duty upon the municipality, and practically 
required every patient to be put in a special and necessarily 
expensive hospital, and having declared that all expenses of pro- 



1898.] PUBLIC DOCUMENT— No. 12. 23 

viding for such cases shall be borne by the Commonwealth, in case 
of State paupers, it is unreasonable to suppose that, by the 
proviso above quoted, it was intended to relieve the Common- 
wealth of a great portion of the expenses so directed to be 
incurred. 

I am of opinion, therefore, that a city or town is to be reim- 
bursed for all the reasonable expenses of caring for persons sick 
with dangerous diseases in a pest house, and is not limited by the 
proviso of St. 1891, c. 153, to an amount not exceeding five dol- 
lars per week. 

Yours very truly, 

Hosea M. Knowlton, Attorney-General. 



Insurance company of foreign country. — Evidence of authority of resi- 
dent manager. — Power to make annual statement. 

An attested copy of a document executed by an insurance company of a 
foreign country, appointing a resident manager in this country, is not 
the best evidence of such appointment, and in court proceedings would 
be subject to the limitations relating to the use of secondary evidence. 

A duplicate of a document executed by an insurance company of a foreign 
country, appointing a resident manager in this country, is not a copy, 
but an original document, and may properly be received by the Insur- 
ance Commissioner as evidence of the authority of the person named 
therein. 

In proving by documentary evidence alone the appointment of a resident 
manager in this country by an insurance company of a foreign country, 
acting through an executive officer, upon whom authority to make 
such appointment was conferred by vote of the directors, such vote 
shall be proved by producing the books of the company containing the 
record thereof, and an attested copy of the record of such vote would 
be subject to the limitations relating to the use of secondary evidence. 

Under the powers conferred upon the resident manager in this country of 
the London Assurance by a certain power of attorney, he has power 
to make the annual statement to the insurance department required by 
St. 1894, c. 522, § 96. 

Feb. 26, 1897. 
Hon. George S. Merrill, Insurance Commissioner. 

Dear Sir: — I have your letter of February 1, requesting my 
opinion upon four questions relating to a power of attorney 
executed by the London Assurance, conferring upon one William 
W. Travell authority to carry on and manage a branch office of 
the said corporation in New York for the purpose of transacting 
the business of marine insurance. The first question asked is, 
whether an attested copy of this document should be received by 
the insurance department as evidence for its own use and for 



24 ATTORNEY-GENERAL'S REPORT. [Jan. 

possible use in the courts that Mr. Travell was duly appointed 
United States manager for the company. 

So far as concerns the question of what your department shall 
regard as sufficient evidence of the authority of Mr. Travell, it is 
of no consequence whether the original or a copy is deposited in 
your office. Mere inspection of the document may be sufficient, if 
thereby you are satisfied with his authority. But the question of 
what proof you may require in case his agency be put in issue in 
court proceedings, should such be instituted against him or the 
corporation, is a more serious one. 

A copy of the paper, however attested, would not be such evi- 
dence. Where a power of attorney is contained in a document 
the instrument itself is the best evidence of that power. To prove 
the contents of such an instrument in a court of law it would in 
most instances be necessary to produce it before the court. In 
certain cases, however, such proof might be had by secondary 
evidence, as by a copy, but these cases are limited in number and 
clearly defined. They are: (1) when the original writing is de- 
stroyed or lost; (2) when its production is physically impossible, 
or when at least highly inconvenient, as in the case of inscriptions 
on walls, surveyors' marks, etc., documents deposited in a foreign 
country the laws of which do not permit their removal, and 
records of a judicial court, or entries in any other public books or 
registers ; (3) when the document is in the possession of the 
adverse party, who refuses, after notice, or in some cases without 
notice, to produce it; (4) when it is in the hands of a third party 
who is not compellable by law to produce it, and, being called as 
a witness with a subpoena duces tecum, relies upon his right to 
withhold it; (5) when the law raises a strong presumption in favor 
of the existence of the document, — e.g., the appointment of a 
person to a public office may be proved by showing that he has 
acted in fact in such a capacity, without showing the written 
appointment; (6) when the papers are voluminous, and it is only 
necessary to prove their general results ; (7) when the question 
arises upon the examination of a witness on the voire dire, an 
almost obsolete process. Taylor on Evidence, § 428. 

Before such secondary evidence is admitted, the foundation for 
introducing it must be laid by showing facts sufficient to bring the 
case within the exceptions above stated. 

The question asked must be decided by the rules of common 
law. There are many statutes of this Commonwealth making 
what would otherwise be secondary evidence admissible equally 
with the original of which they are copies. Pub. Sts., c. 106, § 



1898.] PUBLIC DOCUMENT— No. 12. 25 

22, — certificates of incorporation; Pub. Sts., c. 169, § 70, — 
books, papers, etc., in the departments of the Commonwealth; 
Pub. Sts., c. 73, § 3, — power creating a resident agent of a 
foreign express company to receive service of process ; St. 1894, 
c. 522, § 78, — instrument appointing the Insurance Commissioner 
attorney to receive service of process for foreign insurance com- 
panies. But there is no statute making admissible a copy of a 
power executed by a foreign insurance company to its resident 
manager. 

The use of an attested copy of this document in court proceed- 
ings would be subject to the limitations named above. It is not 
the best evidence of the facts to be proved. 

The second question is, whether a duplicate of this document 
from the home office of the company would be a proper paper for 
the Insurance Commissioner to receive as evidence of the authority 
of Mr. Travell to act as manager. 

A duplicate would not be a copy, but another original docu- 
ment, containing the original evidence of the action of the com- 
pany, and it would have all the efficacy of the original now in your 
possession. 

The third question is, would an attested copy of the records of 
the company, whereby the directors give authority to an executive 
officer or some other person to appoint a United States manager, 
be a necessary document to complete the evidence ? 

If the fact of the appointment by the company of a United States 
manager is desired to be proved by documentary evidence alone, 
it would be necessary to show that any executive officer purporting 
to make the appointment had power so to do, either under the char- 
ter and by-laws of the company, or by special authority conferred 
upon him by the board of directors, who are presumed to have 
the usual powers of directors to attend to the active management 
of the company's affairs. But it would often be more conven- 
ient to prove the fact of appointment by showing the exercise of 
the powers and authority of such office openly, with the consent 
of the company. If documentary evidence were relied on, the 
actual record of any vote of the directors empowering an executive 
officer to appoint a United States manager would be required to be 
shown by producing the books of the company. An attested copy 
of the records of the company would be secondary evidence of their 
contents, and as such would be subject to the limitations men- 
tioned above, if it were desired to be used in court. 

The last question asked is, whether, under the powers conferred 
upon the manager as evidenced by the document above referred to, 



26 ATTORNEY-GENERAL'S REPORT. [Jan. 

he has authority to collect and collate returns for the annual state- 
ment of the United States branch of the company to the insurance 
department, and to make oath to the same. 

The annual statement referred to is that required to be made 
under the provisions of St. 1894, c. 522, § 96, for the purpose of 
exhibiting its financial condition. The said section provides that 
" the annual statement of a company of a foreign country shall 
embrace only its business and condition in the United States, and 
shall be subscribed and sworn to by its resident manager or 
principal representative in charge of its American business." 

The document referred to above, after reciting that the Lon- 
don Assurance have appointed William W. Travell " to be their 
manager or general agent for the transaction of the business of 
marine insurance in the State of New York, and have authorized 
him to appoint such other agents for the said corporation in the 
State of New York as he may deem necessary for the purpose of 
transacting the business of marine insurance in the said State, and 
. . . the said corporation are desirous of conferring on the said 
. . . Travell special and further powers," proceeds to author- 
ize the said Travell "to institute, carry on, and manage in New 
York a branch office of the said corporation to carry on the business 
of a marine insurance . . . and for the purposes aforesaid in the 
name of and on behalf of the said corporation . . . ", in con- 
formity with directions to do any or all of certain specified acts. 
These powers are such as are necessary to carry on the business of 
marine insurance at the company's branch office in New York. In 
the fifth clause the language used is as follows : "for any of the 
purposes aforesaid, to sign, or sign, seal and deliver any deeds and 
instruments, and to do any other acts whatsoever which may be 
necessary or proper in reference thereto." The filing of the annual 
statement of the company with the insurance department is an im- 
portant part of its business. If this duty is neglected, the trans- 
action of any new business by the company is declared unlawful 
(St. 1894, c. 522, § 96) ; and the authority of such company may 
be revoked (§ 82). It is clear that the document referred to was 
intended to give power broad enough to enable the United States 
business of the company to be managed by the said Travell. I am 
of opinion, therefore, that he has power, under the document, to 
make the return referred to. 

Yours very truly, 

Hose a M. Knowlton, Attorney -General. 



1898.] PUBLIC DOCUMENT — No. 12. 27 



Powers Institute of Bernardston. — Children living in one town, attending 
high school in another. — Tuition expenses. — State reimbursement. 
St. 1895, c. 212; St. 1894, c. 436. 

The Powers Institute in the town of Bernardston is a school conducted 
according to law under the order and superintendence of the authori- 
ties of said town within the meaning of the eighteenth article of 
amendment of the Constitution of the Commonwealth, and may be 
approved by the State Board of Education as a high school under the 
provisions of St. 1895, c. 212, providing for the repayment to towns by 
the Commonwealth of the expenses for the tuition of scholars 
attending therein. 

Mar. 8, 1897. 

Frank A. Hill, Esq., Secretary State Board of Education. 

Dear Sir : — The questions stated in your communications of 
March 1 and 4 relate to the authority of your Board to approve the 
Powers Institute in Bernardston as a high school, within the mean- 
ing of that term as used in St. 1895, c. 212, § 2. By St. 1894, 
c. 436, a town in which no high school is maintained shall, under 
certain conditions, pay the tuition of children living in that town 
and attending the high school of another town or city. By St. 
1895, c. 212, when the valuation of such town does not exceed 
$500,000, the expenses of such tuition shall be repaid from the 
treasury of the Commonwealth, provided (in section 2) that such 
repayment shall not be made excepting when such high school 
shall have been approved by the State Board of Education. 

I had the honor to advise the Senate in an opinion transmitted 
March 18, 1896, that it would be unconstitutional for a town to 
pay the tuition of children living in a town and attending a 
private academy, either in the same or any other town, for the 
reason that such payment would be in violation of the provisions 
of the eighteenth amendment of the Constitution. I understand 
your question to be whether the Powers Institute is such a pri- 
vate institution, or whether it is " conducted according to law, 
under the order and superintendence of the authorities of the 
town." If the latter, then it is such a school as may be approved 
by the Board of Education, and one to which children may be sent 
by towns having no high school, at the expense of the town. 

For convenience of reference I quote the article of the Con- 
stitution in question: "All moneys raised by taxation in the 
towns and cities for the support of public schools, and all moneys 
which may be appropriated by the state for the support of common 
schools, shall be applied to, and expended in, no other schools 
than those which are conducted according to law, under the order 
and superintendence of the authorities of the town or city in which 



28 ATTORNEY-GENERAL'S REPORT. [Jan. 

the money is to be expended ; and such money shall never be ap- 
propriated to any religious sect for the maintenance, exclusively, 
of its own school." 

The spirit of this amendment is undoubtedly to be drawn from 
the concluding sentence. It was the intention of the constitutional 
convention to prevent the appropriation of public moneys to the 
support, directly or indirectly, of sectarian schools, and to require 
that schools supported by taxation should be under the control of 
the authorities of the town. It is not of the essence of the con- 
stitutional provision that such schools shall be in all respects 
identical in name or management with the different grades of pub- 
lic schools established by law. 

Upon the facts submitted to me, the Powers Institute, although 
nominally an academy, and founded and largely supported by 
private charitable bequests, is, nevertheless, for all purposes in 
fact a town school. By the will of Mr. Powers the bequest which 
founded the school was given to the town of Bernardston " to 
maintain and support a grammar or high school." The legac} r 
was accepted by the town by vote. The money was paid to the 
authorities of the town, and a part of it was expended for a school 
building. The organization of the academy was created by vote 
of the town. It provided for a board of trustees to be elected by 
the inhabitants of the town, and who were required to make annual 
report to the town. Under the original vote of the town it was pro- 
vided that a minority of the trustees should be chosen from the 
inhabitants of adjoining towns ; although as I am informed, no trus- 
tees have in fact been chosen excepting inhabitants of Bernard- 
ston. Whether this fact would be important or not is not now of 
consequence, as I am informed by your second letter that a vote 
has been passed providing that the trustees shall all be chosen 
from the inhabitants of Bernardston. I am of opinion, upon these 
facts, that the Powers Institute is a school " conducted according 
to law, under the order and superintendence of the authorities of 
the town " of Bernardston, and as such is a high school within the 
meaning of the statutes relating to the payment of tuition by 
towns for scholars attending therein. 
Yours very truly, 

Hosea M. Knowlton, Attorney-General. 



1898.] PUBLIC DOCUMENT — No. 12. 29 



Use of public property for sectarian religious purposes. — Effect of pro- 
posed amendment to the Constitution. 

The proposed article of amendment to the Constitution, set forth in House 
Document No. 428 of 1897, prohibiting sectarian legislation and the 
support of sectarian institutions from public funds, would prevent 
cities or towns from allowing a school-house or school-houses therein 
to be used from time to time for the purpose of religious worship by 
religious sects or denominations, even if the permission to use the 
same for the said purpose were granted without discrimination to the 
various different religious denominations and sects applying therefor. 

April 2, 1897. 
To the Honorable the House of Representatives. 

I have the honor to acknowledge the receipt of a copy of an 
order of the House of Representatives, adopted March 11, 1897, 
requesting the opinion of the Attorney-General in writing upon 
the question " whether the proposed article of amendment to the 
Constitution, set forth in House Document number four hundred 
and twenty-eight of the present session, would prevent cities or 
towns, or the authorities of cities or towns, from allowing a school- 
house or school-houses therein to be used from time to time for the 
purposes of religious worship, provided the permission to use 
the same for said purpose were granted without discrimination to 
the various different religious denominations and sects applying 
therefor." 

Although the question submitted, in terms, relates to the use of 
a school-house " for purposes of religious worship," I assume it is 
intended to be limited to the right of such use by religious denom- 
inations and sects. I do not understand that I am called upon to 
consider whether the use of a school-house for religious worship 
not conducted or controlled by any religious denomination of sect 
would be forbidden by the proposed amendment, but whether the 
amendment prohibits the use of public property for sectarian 
religious purposes, even when such use is granted indiscriminately 
to all sects and denominations applying therefor. 

The plain purpose of the proposed amendment is to prevent the 
use of public property for sectarian religious purposes. Rejecting 
words which have no reference to the question submitted, the pro- 
posed amendment provides, specifically, that no city or town shall 
authorize its property to be used for the purpose of aiding in any 
manner any church, religious denomination or religious society 
which is under sectarian control. This language is broad enough 
to include the use of a public building as a place of worship by a 
religious sect. Such a use would be aiding a religious organiza- 
tion for religious services, for a church society or organization 



30 ATTORNEY-GENERAL'S REPORT. [Jan. 

cannot well be conducted without a place provided for such a pur- 
pose. To provide a place of worship for a religious sect is to aid 
it materially. 

The question submitted supposes a case where public property 
is granted without discrimination to the various different religious 
denominations and sects applying therefor. The proposed amend- 
ment, however, is not directed against discrimination in favor of 
one sect as against any particular sect, but is intended to prevent 
any sectarian religious use whatever of public property. The use 
of such property by all sects who apply therefor would be as 
clearly in violation of the spirit of the amendment as would be 
the exclusive use by any particular sect. 

Replying, therefore, specifically to the question submitted as I 
understand it to be intended, I am of opinion that the proposed 
article of amendment would prevent cities or towns from allowing 
a school-house or school-houses therein to be used from time to 
time for the purpose of religious worship by religious sects or 
denominations, even if the permission to use the same for said 
purpose were granted without discrimination to the various differ- 
ent religious denominations and sects applying therefor. 
Yours very truly, 

Hose a M. Knowlton, Attorney -General. 



Fire insurance. — Limitations as to business of. — Insurance against loss 
by explosion. — Slips or riders attached to policies. 

A fire insurance company may not add to its policies a slip or rider con- 
taining an agreement that in consideration of the payment of an addi- 
tional premium the policies shall cover loss or damage by explosion to 
the property thereby insured, whether fire ensues or not. 

April 3, 1897. 
Hon. George S. Merrill, Insurance Commissioner. 

Dear Sir: — Your letter of March 15 submits the following 
question. Certain insurance companies are proceeding to add to 
the standard form of policy provided by the Massachusetts statutes 
a slip or rider, a copy of which is contained in your letter, by 
which it is agreed in substance that in consideration of an addi- 
tional premium the policy shall cover " loss or damage by ex- 
plosion to the property hereby insured, whether fire ensues or 
not ; " may such a slip or rider be lawfully attached to such fire 
policies ? 

The Massachusetts insurance act (St. 1894, c. 522) provides in- 
section 60 that " no fire insurance companies shall issue fire in- 
surance policies on property in this Commonwealth, other than 



1898. j PUBLIC DOCUMENT — No. 12. 31 

those of the standard form herein set forth," except in certain 
cases stated in the seven following clauses. Of these, clause 7 
provides that " a company may write upon the margin or across 
the face of a policy, or write or print in type not smaller than long 
primer, upon separate slips or riders to be attached thereto, pro- 
visions adding to or modifying those contained in the standard 
form ..." 

It is apparent that these regulations are meant to control merely 
the form of the contract of fire insurance, not the substance, and 
to protect the public from becoming bound by stipulations in these 
contracts difficult to discover, in the absence of such regulations, 
except by careful examination, and the existence of which would 
often escape detection. Such stipulations, if inserted in the con- 
tract of insurance in the manner provided by clause 7, above 
quoted, would at once attract the attention of persons desiring to 
take out policies. It cannot be said, however, that section 60, 
above quoted, was intended to limit or define the contracts which 
fire insurance companies may make, or to prescribe that no terms 
inconsistent with those contained in the standard form of policy 
should be incorporated in contracts of insurance made by such 
companies. If this were the meaning of the section, it would be 
impossible to give any effect to the seventh clause, allowing addi- 
tions or modifications to be made to the provisions contained in 
the standard form. Whatever limitations fire insurance companies 
are subject to, so far as concerns the kind of business in which 
they are allowed to engage and the substance of the contracts 
which they make, must arise from the terms of their charters and 
the provisions of the statutes. Notwithstanding the fact, there- 
fore, that the standard form of policy contains the clause that the 
amount insured against is "not to include loss or damage caused 
by explosions of any kind unless fire ensues, and then to include 
that caused by fire only," this fact is not to be taken as deter- 
mining the present question, although it may have some bearing 
upon it. 

St. 1894, c. 522, § 3, as amended by St. 1897, c. 66, provides that 
"it shall be unlawful for any company to make any contract of 
insurance upon or concerning any property ... in this Common- 
wealth, or with any resident thereof, or for any person as insur- 
ance agent or insurance broker to make, negotiate, solicit, or in 
any manner aid in the transaction of such insurance, unless and 
except as authorized under the provisions of this act ..." 

It is furthermore provided by St. 1894, c. 522, § 29, which as 
finally amended appears in St. 1896, 447, § 1, that insurance com- 
panies may be formed as provided in the following section for any 



32 ATTORNEY-GENERAL'S REPORT. [Jan. 

one of certain purposes enumerated in the nine following clauses. 
Of these, the first reads as follows: "To insure against loss or 
damage to property by fire, lightning or tempest on land, upon the 
stock or mutual plan." Section 30 of St. 1894, c. 522, prescribes 
the procedure for organizing such a corporation ; and section 31 
of the same chapter, as finally amended by St. 1896, c. 447, § 2, 
provides that " no corporation so formed shall transact any other 
business than that specified in its charter and articles of asso- 
ciation." 

The slip or rider in question purports to incorporate into a con- 
tract of fire insurance a clause insuring property against " loss or 
damage by explosion, . . . whether fire ensues or not." It is 
nowhere provided in the statutes of this Commonwealth that such 
a contract of insurance may be made. Loss or damage caused by 
explosion of steam boilers may be insured against (St. 1896, c. 
447) ; also loss caused by accident other than by fire to apparatus 
used for extinguishing fires, among which causes of damage ex- 
plosion might and probably would be included. But insurance 
companies can be organized only for any one of certain purposes 
defined by law ; they cannot combine the business of several 
kinds of insurance. St. 1894, c. 522, § 29. It is clear, there- 
fore, that a fire insurance company must confine itself strictly to 
the business purposes set forth in its charter, viz., insurance 
against loss or damage by fire, and may not go outside of this 
limit in issuing its policies insuring against loss by explosion with- 
out violating the provisions of St. 1894, c. 522, § 31, as amended 
by St. 1896, c. 447, § 2. I am of opinion, therefore, that fire 
insurance companies may not add to their policies slips like that 
above mentioned. 

Yours very truly, 

Hose a M. Knowlton, Attorney- General. 



Savings banks. — Investments authorized by law. — First mortgage of 
real estate. — Meaning of phrase in statute. — Bonds secured by mort- 
gage on real estate executed to trustee for benefit Of bondholders. 

A savings bank may not purchase bonds which are a portion of a larger 
number secured by a first mortgage of real estate executed by the 
obligor to a third person as trustee for the benefit of bondholders. 

Apkil 8, 1897. 
Hon. Starkes Whiton, 

Chairman Board oj Savings Bank Commissioners. 

Dear Sir : — Your letter of the 17th ult. submits the following- 
question, to wit: ''The owners of a tract of land with buildings 



1898.] PUBLIC DOCUMENT — No. 12. 33 

thereon in Boston, propose to mortgage the premises to a trust 
company as trustee to secure an issue of bonds made by the owners 
of the property amounting in the whole to less than 60 per cent, of 
the value of the property. Is it lawful for a savings bank to 
invest in some of these bonds ? " 

St. 1894, c. 317, § 21, provides that " Deposits and the income 
derived therefrom shall be invested only as follows : First. On 
first mortgages of real estate, situated in this Commonwealth, to an 
amount not to exceed 60 per cent." The question submitted, 
therefore, is, whether the purchase by a savings bank of bonds 
which are secured by a first mortgage of real estate of the obligor, 
executed to a trust company as trustee for the security of the 
bondholders, is a loan " on a first mortgage of real estate," with- 
in the meaning of the section quoted. 

The restrictions as to the investments of savings bank deposits, 
so far as they relate to mortgage loans, were first enacted in the 
form in which they now appear in St. 1876, c. 203, when mort- 
gages of real estate to trustees to secure bonds issued by the 
owners thereof were comparatively unknown. It is very probable 
that the question of investments by savings banks in such bonds 
was not considered by the Legislature at that time. It does not 
follow, however, even if such investments were not known when 
the law was enacted, that its language may not be broad enough 
to include loans of the character in question. It not infrequently 
happens that statutes enacted in view of existing facts are found 
to be comprehensive of new conditions as they arise in the growth 
of business. The question submitted by your letter, therefore, 
requires me to consider whether a form of investment which may 
be assumed not to have been within the contemplation of the 
Legislature when the provisions now in force were enacted, is 
included within the intent and meaning of such provisions. The 
question is one of importance, for the increase in the number of 
great business enterprises has made it frequently necessary to 
resort to the form of bonds in question for the purpose of negoti- 
ating large loans. Many enterprises require the use of more 
capital than can be supplied by any one individual or corporation, 
and by making a mortgage to a trustee to secure bonds, and then 
selling the bonds indiscriminately, larger loans can be floated than 
would be practicable under a mortgage made directly to the per- 
son loaning the money. 

I am of opinion, however, that the purchase of bonds by a 
savings bank, which are a portion of a larger number secured by a 
mortgage given by the obligor to a third person as trustee for the 
benefit of bondholders, is not a " loan upon mortgage," within the 



34 ATTORNEY-GENERAL'S REPORT. [Jan. 

meaning of the statutes relating to savings banks. Those statutes 
deal with various classes of loans, and the language employed is 
that used by business men in commercial transactions. In certain 
cases loans may be made upon bonds or notes not secured by a 
mortgage ; upon mortgage bonds ; upon notes secured by collat- 
eral ; upon personal notes ; and upon mortgages of real estate. A 
bond of the character in question would not ordinarily be termed 
a mortgage, but a bond ; and the holder thereof would not be a 
mortgagee, but a bondholder. It is in this sense that the language 
of the section quoted is to be taken. " Loans upon first mort- 
gages of real estate," as that expression is used in the statute, are 
loans made to an individual or a corporation upon the security of 
a mortgage given by the borrower to the savings bank. Certain 
rights attach to the holder of a mortgage which do not appertain 
to the holder of a bond secured by a mortgage in the hands of a 
trustee. It was, in my opinion, the intention of the statute to 
authorize savings banks to loan upon mortgages only when the 
full and unrestricted rights of mortgagees are conferred upon the 
bank, to the end that the entire control and custody should be in 
the hands of the bank. 

But in the case of the purchase of bonds this would not be so. 
For example, in the particular instance upon which the question 
arises, in which a copy of the mortgage and declaration of trust 
have been submitted to me, the trustee has the discretion to fore- 
close or not, as he deems best. A bondholder cannot act except 
in concert -with a certain percentage of the bondholders. The 
trustee, before foreclosing, may require reasonable indemnity from 
the bondholders. The trustee has a prior lien upon the property 
for his charges, and may act by agents and shall not be held re- 
sponsible for the negligence or wrong-doing of such as may be 
selected with due care. It is further provided that where doubts 
arise as to the authority of the trustee the holders of a majority 
of the outstanding bonds may instruct the trustee. 

These provisions and limitations are certainly not equivalent to 
the absolute control conferred by a mortgage upon a mortgagee. 
The holders of bonds so secured, as was stated by Mr. Justice 
Morton in Knight v. Boston, 159 Mass. 555, "cannot release, 
assign or foreclose the mortgage, nor do any of the other things 
that mortgagees may do. They are bondholders, and not mortga- 
gees. The bonds do not constitute a loan on mortgage by the 
petitioners, in the ordinary acceptation of those words." The 
quotation, it is true, is from a dissenting opinion, but the majority 
opinion in the case proceeds upon grounds which clearly distinguish 



1898.] PUBLIC DOCUMENT — No. 12. 35 

it from the present question, and to which I will hereafter call 
attention. 

The savings bank statute looks to the absolute protection of 
depositors in savings banks, and doubts as to the meaning of the 
language used are, when practicable, to be resolved in favor of 
the depositors. When a savings bank loans money and takes a 
mortgage, it has the right of release, assignment and foreclosure, 
limited only by the conditions of the mortgage. It may also pur- 
chase the property at the foreclosure sale (St. 1894, c. 317, §§ 21, 
cl. 9). It has immediate, absolute, and practically unlimited, 
right of action whenever necessary to protect its interests. It was 
this form of loan in which the Legislature intended savings banks 
might invest 60 per cent, of the money of their depositors. The 
purchase of a bond, although secured by a mortgage of real estate, 
the holding of which gives only an equitable interest in the 
mortgage, and the right only upon certain conditions to call upon 
the mortgagee to act for the protection of the bondholders, is not 
an equivalent security, as matter of law, nor necessarily so in fact. 
In my opinion, it is not within the intent and scope of the pro- 
vision in question. 

I am aware that in the case of Knight v. Boston, above cited, 
it was held by a majority of the court that for the purposes of 
taxation such bonds were to be regarded as loans upon mortgage, 
and consequently to be exempt from taxation. This decision, 
however, proceeds upon the ground that the statutes exempting 
loans upon mortgages from taxation were enacted for the pur- 
pose of preventing double taxation. As the law stood before 
the exemption was made, the real estate was taxed to the owner, 
and the mortgage loan to the mortgagee. The result of this 
was that in many cases the same property was twice taxed. It 
was for this reason that loans upon mortgages were by statute 
exempted from taxation. The reason of this exemption, however, 
would apply with equal force to loans made upon bonds secured 
by a mortgage to a trustee. 

The decision, therefore, cannot be regarded as authority, for the 
contention that for the purposes of investment of deposits by sav- 
ings banks such bonds are to be regarded as loans upon mortgage 
of real estate. On the contrary, as I have attempted to show, the 
purpose of the limitations provided for savings bank investments 
clearly point to the opposite conclusion. 

Whether, as is suggested in the able brief submitted by counsel 
upon the subject, the bonds in question would be a safe and pru- 
dent investment for savings banks, and would have practically all 



36 ATTORNEY-GENERAL'S REPORT. [Jan. 

the safeguards which attach to mortgage loans, is for the con- 
sideration of the Legislature rather than for your Board. If, as is 
stated, such forms of loans are becoming more frequent, and are a 
desirable investment for savings banks, it may be that the Legis- 
lature will authorize savings banks to purchase them. But the 
question I am called upon to consider is whether they are included 
within the plain meaning and intent of the statutes now in force. 
For the reasons above stated I am of opinion that they are not. 
Very truly yours, 

Hosea M. Knowlton, Attorney -General. 



Support of Law Library Association. — Fees of clerks of courts. — Natu- 
ralization fees. — Worcester County Law Library Association. 

The county treasurer of Worcester County may not pay to the County 
Law Library Association either the fees received from clerks of 
courts or those received in naturalization cases, but he is authorized 
to pay, on account of county law libraries, only a sum not exceeding 
two thousand dollars, the amount named in Res. 1897, c. 40. 

May 12, 1897. 
Charles R. Prescott, Esq., Controller of County Accounts. 

Dear Sir : — The question submitted in your letter of April 26 
relates to the construction of certain statutes and resolves of the 
Commonwealth which are apparently inconsistent, unless the 
earlier statutes are to be regarded as repealed by the later 
statutes. 

Under the provisions of Pub. Sts., c. 40, § 6, as amended by 
St. 1882, c. 246, county treasurers were required annually to 
pa}' to law library associations in their respective counties for the 
maintenance of law libraries, all money paid into the treasury 
during the year by clerks of courts, to an amount not exceeding 
two thousand dollars in any one year, and also such further sums 
as the county commissioners might deem necessary and proper. 
It was further provided by St. 1885, c. 345, § 6, that all fees 
received by clerks of courts in the Commonwealth in naturaliza- 
tion cases should be paid to the county treasurers, to be paid by 
them in turn to the treasurers of county law libraries, which sums 
were stated to be "in addition to the sums which said associations 
are now entitled to receive by law." St. 1897, c. 153, after pro- 
viding that the expenditure of money by counties shall be author- 
ized by the General Court by appropriation, annual or special, 
declares in section 9 that " no county expenditure shall be made, 
nor liability incurred, nor bill paid for any purpose, in excess of 



1898.] PUBLIC DOCUMENT— No. 12. 37 

the amount appropriated therefor, except as hereinafter pro- 
vided." Under the resolve granting a county tax for the county 
of Worcester (Res. 1897, c. 40) there is appropriated "for law 
libraries a sum not exceeding two thousand dollars." 

The question in your letter is, whether the county treasurer 
should pay to the Law Library Association the fees received from 
clerks of courts, including naturalization fees, which in the county 
of Worcester exceeds the sum of two thousand dollars ; or whether 
the amount to be paid over to the Law Library Association is 
limited to the sum of two thousand dollars appropriated by the 
resolve. 

The law libraries in the several counties substantially belong to 
and are maintained by such counties. St. 1842, c. 94, was the 
first act in relation to law library associations. Under this act the 
practising attorneys in the several counties were constituted cor- 
porations to hold and manage the law libraries belonging to the 
counties, and the act provided a method of organizing such cor- 
poration within a certain time, which was extended by St. 1844, 
c. 157. It was not until St. 1856, c. 71, that any express provi- 
sion was made for the maintenance and enlargement of such 
libraries. That act authorized the county commissioners to pay 
from the county treasuries to the treasurers of the law library 
associations for their maintenance such sums as they might deem 
necessary and proper, not exceeding the amount paid into such 
treasuries by clerks of courts. St. 1859, c. 172, required the 
county treasurers to pay on January 1 of each year to the treas- 
urers of the library associations one-quarter of the amount received 
from the clerks of the courts during the preceding year, not 
exceeding one thousand dollars ; but this act expressly declared 
that it should not be construed to prevent county commissioners 
from authorizing other payments from the county treasuries under 
St. 1856, c. 71. No change was made in the law relating to this 
subject in the General Statutes. Gen. Sts., c. 33, § 6. By St. 
1863, c. 215, the whole amount received by county treasurers 
from clerks of courts was to be paid to the law libraries up to the 
amount of four hundred dollars, and one-quarter of the surplus in 
addition, the whole amount paid not to exceed one thousand 
dollars. St. 1874, c. 156, repealed St. 1863, c. 215, and pro- 
vided that the law libraries should receive the whole amount 
received from the clerks of courts up to the amount of one thou- 
sand dollars, and one-quarter of the surplus in addition, the whole 
amount not to exceed two thousand dollars. St. 1881, c. 89, 
gave to the law library associations all sums paid to county treas- 



38 ATTORNEY-GENERAL'S REPORT. [Jan. 

urers by clerks of courts, not exceeding fifteen hundred dollars, 
and authorized the payment of such further sums as the county 
commissioners might deem necessary and proper. In this form 
the statute appears in the Public Statutes (Pub. Sts. c. 40, § 6). 
The only other changes in the statutes relating to this subject 
have been quoted above. 

During the time covered by the statutes cited relating to law- 
library associations, there was no definite policy of legislative 
control over county finances. The amount to be expended for 
different purposes rested largely in the discretion of the county 
commissioners. But, by St. 1895, c. 482, the policy was adopted 
of bringing the management of the finances of the counties within 
the control of the Legislature. This policy has been extended 
by later statutes, to wit: St. 1896, c. 357, and St. 1897, c. 153. 
By St. 1895, c. 482, it was provided that the expenditure 
of money by the several counties should be authorized annually 
by law, that the purposes for which such expenditure might 
be made should be specified in detail, and that no expendi- 
ture for any purpose should be made in excess of the amount 
specified except as therein provided. The act allowed the county 
commissioners, when they thought it proper, to spend money in 
excess of the amount appropriated, by permitting them to transfer 
from one appropriation to another, or to make the expenditure out 
of any unappropriated money in the treasury ; but in all such cases 
the commissioners were obliged to cause the reasons for such 
transfer or expenditure to be placed upon their records. The 
commissioners by the said act were further authorized to incur 
debts, after the close of the financial year, and before the making 
of the next annual appropriation by the Legislature, to an amount 
not exceeding the debts incurred in the previous year for the same 
period and purpose. 

The next statute relating to this subject — St. 1896, c. 357, 
which, though it expressly repealed St. 1895, re-enacted its essen- 
tial provisions — still further restricted the power of county com- 
missioners. By this act the expenditure of money by counties in 
excess of the amounts appropriated, instead of being within the 
discretion of the county commissioners, was authorized only for 
certain well-defined purposes. St. 1896 was followed by St. 1897, 
c. 153. This act provides that the county treasurers of each 
county, except Suffolk, shall annually publish a report of county 
receipts and expenses for the previous year, in detail, which shall 
contain a table showing the appropriation made by the Legislature 
for each specific object, the amount expended out of each appro- 



1898.] PUBLIC DOCUMENT — No. 12. 39 

priation, the unexpended balance of each such appropriation, and, 
if payments have exceeded the appropriation, the amount of the 
excess. It further provides that the county commissioners shall 
annually prepare estimates of county receipts and expenditures for 
the next year, which are to be reported to the Legislature. By 
section 7 the expenditure of money for the several counties, ex- 
cept Suffolk, is to be authorized by the Legislature by appropria- 
tions. The appropriations are to be of two kinds, annual and 
special. A separate appropriation is to be made for each head of 
expenditure. 

By section 8 it is provided that the amount to be levied as the 
county tax shall be authorized annually by the Legislature, and 
shall be computed by adding together the amounts of the annual 
and of the new special appropriations, if any (so far as the money 
therefor was to be raised by taxation, and not by borrowing), and 
then, by deducting " so much of the probable receipts from all 
sources, except loans, and of the unappropriated balance in the 
county treasury at the closing of the treasurer's books for the 
previous financial year, as may be deemed by the General Court 
advisable." 

Section 9 is as follows : " No county expenditure shall be made 
nor liability incurred, nor bill paid for any purpose, in excess of 
the amount appropriated therefor, except as hereinafter provided." 

Section 10 authorizes the making of any expenditure required 
by law in excess of the appropriation out of any money in the 
treasury; and section 11 provides for the payment of bills to a 
certain amount, incurred after the close of the financial year, and 
before the making of the regular annual appropriations by the 
Legislature. 

I am of opinion that the statutes last referred to, to wit, those 
of 1895, 1896 and 1897, must be taken to have repealed all provi- 
sions in relation to county expenditures inconsistent therewith. It 
follows that the provisions of the earlier statutes, which required 
the payment by the county treasurers to law library associations 
of fees received from clerks of courts, including naturalization fees, 
are no longer in force. They were a part of the system of legisla- 
tion which prevailed at the time such laws were enacted, and under 
which the control of the expenditure of money was vested in the 
county commissioners with certain limitations, of which the acts in 
question were an instance, all of which are superseded by the Sts. 
of 1895, 1896 and 1897. The policy of county expenditures has 
been radically changed. The Legislature has undertaken to limit 
by annual appropriation the amount which may be expended by 



40 ATTORNEY-GENERAL'S REPORT. [Jan. 

counties for any specific purpose. The method of computing the 
amount to be levied annually as the county tax illustrates this 
change. Such computations are made substantially by taking the 
difference between the amounts appropriated and so much of the 
probable receipts, together with the unappropriated balance in 
the treasury, as the Legislature shall deem advisable. The re- 
ceipts referred to are to be " from all sources." St. 1897, c. 
153, § 8. No exception is made of receipts from clerks of courts 
or receipts on account of naturalization fees, and no such excep- 
tion is intended. The purpose of the Legislature to define the sums 
to be expended for all purposes, including law library associations, 
is clearly manifest. 

Your question relates specifically to the resolve (Res. 1897, c. 
40) granting a tax for Worcester County. By that resolve cer- 
tain sums are appropriated for the expenses of the county of 
Worcester for 1897, among which is an item of "a sum not 
exceeding two thousand dollars for law libraries ; " and the county 
commissioners of that county are authorized to levy a certain sum 
as county tax, to be expended, as the resolve says, " together with 
the cash balance on hand and the receipts from other sources, for 
the above purposes." This resolve is in conformity with existing 
statutes. All receipts, from whatever source, including, of course, 
the fees of clerks of courts and naturalization fees, together with 
the amount raised as county tax, are to be expended for the pur- 
poses specified in the resolve, and the amount to be expended is 
clearly limited by the terms of the resolve. It is not to be pre- 
sumed, and the statutes clearly forbid such an assumption, that an 
implied exception was made in favor of the receipts from clerks of 
courts, and in naturalization cases, which under the former stat- 
utes were to be paid to law library associations. 

I am of opinion, therefore, that, in accordance with the provi- 
sions of St. 1897, c. 153, § 9, the county treasurer of Worcester 
County may not pay to the Couuty Law Library Association either 
the fees received from the clerks of courts or those received in 
naturalization cases, but that he is authorized to pay on account 
of county law libraries only a sum not exceeding the amount 
named in Res. 1897, c. 40, to wit, two thousand dollars. 
Yours very truly, 

Hosea M. Knowlton, Attorney- General. 



1808.] PUBLIC DOCUMENT — No. 12. 41 

Persons employed to put probate records and flies in order. — Mode of 
payment. — St 1891, c. 225. 

Persons employed to put probate records and files in order, pursuant to 
the provisions of St. 1891, c. 225, should be paid for their services 
upon their vouchers and directly from the county treasury. 

May 13, 1897. 

Charles R. Phescott, Esq., Controller of County Accounts. 

Dear Sir: — St. 1801, c. 225, provides that the county com- 
missioners in each county are authorized to cause the files and 
records of the probate court therein to be rearranged, indexed 
and docketed, dockets worn or defaced to be renewed, and the in- 
dexes to be consolidated, under the direction and supervision of 
the registers of said court, when in the judgment of said commis- 
sioners public convenience demands it. 

Action having been taken under this statute in certain counties 
the question arises whether the persons so employed are to be paid 
by the register from funds supplied to him for that purpose by the 
treasurer, or by the county treasurer. 

It is claimed that, inasmuch as clerks employed under statutes 
authorizing registers to employ extra clerical assistance in the 
performance of their duties are paid by the registers, persons 
employed under this statute should follow the same rule, and be 
placed on the register's pay roll. The analogy, however, is not 
good. The statute authorizing extra clerical assistance for regis- 
ters, like Pub. Sts., c. 158, § 24, St. 1887, c. 39, and St. 1889, 
c. 209, are intended to provide for clerical assistance to the 
registers in the performance of the duties imposed upon them by 
the statutes defining such duties. The question whether such 
persons should be paid by the registers in the first instance, or 
by the county treasurer, is not raised and need not be considered. 
But the work provided for by the statute of 1891, above quoted, 
is no part of the duty of the register as prescribed by Pub. Sts., 
c. 158, or by any other statute. It is no part of his duties to 
cause the files and records to be rearranged, or to have worn 
dockets renewed, or indexes consolidated. It is special work 
which the Legislature has seen fit to authorize to be done under 
the direction of the county commissioners. Although the work is 
done under the direction and supervision of the register, it is still 
done under the employment of the county commissioners, and is 
to be paid as other expenses incurred by the county commissioners 
are paid, to wit, from the county treasury to the persons em- 
ployed to do the work, and upon their vouchers. 
Yours very truly, 

Hosea M. Knowlton, Attorney -General. 



42 ATTORNEY-GENERAL'S REPORT. [Jan, 



Authority to solemnize marriages. — Clergyman or rabbi. — Place where 

ceremony may be performed. — St. 1894, c. 409, § 5. 
A clergyman or rabbi, duly authorized as such to solemnize a marriage in 
this Commonwealth, may perform the marriage ceremony anywhere 
within the Commonwealth, regardless of the place of his residence or 
of that of the contracting parties. 

May 19, 1897. 
Hon. William M. Olin, Secretary of the Commonwealth. 

Dear Sir : — The question upon which you desire the opinion 
of the Attorney-General is as to the construction of St. 1894, 
c. 409, § 5. 

Pub. Sts., c. 145, § 22, provides that " every marriage shall be 
solemnized in the city or town in which the person solemnizing it 
resides, or in which one or both of the persons to be married 
reside." The statute in question (St. 1894, c. 409, § 5) provides 
that " any clergyman or rabbi duly authorized to solemnize a 
marriage in this Commonwealth may perform the ceremony any- 
where within the same." The question you suggest is, whether 
the latter statute authorizes such a clergyman or rabbi to perform 
the marriage ceremony anywhere within the Commonwealth, with- 
out regard to the place of residence of himself or either of the 
persons to be married. 

If the question be answered in the negative, then it is not difficult to 
see that no change has been made in pre-existing laws by St. 1894, 
c. 409, § 5 ; and the section in question means nothing whatever. 
Such a construction is not to be favored. Statutes are not to be 
construed, unless the terms plainly require such a construction, so 
as to render their provisions absurd or meaningless. This is 
especially true in regard to remedial statutes, like this in relation 
to mairiages. It is the polic} 7 of our legislation to favor marriages 
rather than to hamper them by limitations and restrictions. This 
principle is carried so far that a marriage ceremony performed by 
a person whom the parties supposed to be authorized to solemnize 
marriages shall be regarded as valid, although the magistrate had 
no jurisdiction in fact. The regulations relating to contracting 
and solemnization of marriages are, for the most part, to be con- 
strued, not as conditions precedent to the validity of the marriage 
ceremony, but rather as penal statutes affecting the officials con- 
cerned in such marriages. It is the policy of the law to make it 
easy for persons to get married, and to confirm and establish a 
marriage, however contracted, if in good faith, rather than to 
throw doubt upon it. 

The statute in question is to be taken as intending to further 
this policy. Literally construed, it authorizes a clergyman or rabbi 



1898.] PUBLIC DOCUMENT — No. 12. 43 

to perform marriages anywhere within the Commonwealth, regard- 
less of the residence of the contracting parties. Before the 
passage of the statute a clergyman duly authorized to solemnize 
marriages could perform the ceremony in the place of residence of 
the parties or either of them. This statute must be taken to have 
given him larger license, and to authorize him to perform the 
duties of his office wherever he may be found within the Common- 
wealth. Any other construction leaves the law precisely as it 
existed before the statute was enacted. 

The act applies, of course, only to clergymen authorized to 
solemnize marriages ; that is, to a minister of the gospel, ordained 
according to the usages of his denomination, residing in the Com- 
monwealth and continuing to perform the functions of his office ; 
and to a duly licensed rabbi of an Israelitish congregation, who 
has filed with the clerk of the town or city where he resides a cer- 
tificate relating to his official position, and a certificate of the 
establishment of the synagogue of which he is rabbi, and the term 
of his engagement, as required by St. 1896, c. 306. 

I am of opinion, therefore, that St. 1894, c. 409, § 5, is to be 
construed as authorizing a clergyman or rabbi, duly authorized to 
solemnize a marriage in this Commonwealth, ordained according to 
the usages of his denomination, who resides in the Commonwealth 
and continues to perform the functions of his office, to perform 
the marriage ceremony anywhere within the Commonwealth, re- 
gardless of the place of his own residence or of that of the con- 
tracting parties. 

Yours very truly, 

Hosea M. Knowlton, Attorney- General. 



Expense of metropolitan sewerage system. — Assessment upon cities and 
towns. — Right to assess, for current year, amounts required in that 
and previous years. 

The amount which should have been assessed in 1896 upon the cities and 
towns included in the metropolitan sewerage district on account of 
the expenses of the metropolitan sewerage system was not assessed 
in that year, because the commission appointed according to law to 
apportion the amount of such assessments for the five years beginning 
in 1896 did not report until too late for such assessment to be made. 

It is both the right and the duty of the Auditor of the Commonwealth to 
assess upon the cities and towns included in the metropolitan sewerage 
district, for the year 1897, the whole amount of the assessments re- 
quired for both the years 1896 and 1897. 

May 20, 1897. 

Hon. John W. Kimball, Auditor. 

Dear Sir : — In your letter of May 13, you state that the amount 
which should have been assessed upon the towns in the district on 



U ATTORNEY-GENERAL'S REPORT. [Jan. 

account of the metropolitan sewerage system for 1896 was $307,. 

000 ; that the commission appointed under the provisions of St. 
1889, c. 439, § 14, to apportion the amount of said assessment for 
the five years beginning in 1896, did not report until too late to 
assess the towns during that year, and that consequently no assess- 
ment was made in that year. The question submitted by your 
letter is, whether you have the right now to assess upon said towns 
the amount of the assessment for 1896 and 1897, both to be paid 
this year. 

The general scheme of metropolitan sewerage provides for the 
construction of a system of sewers by a commission acting under 
the authority of the Commonwealth, and whose expenses and 
disbursements are to be paid out of the treasury of the Common- 
wealth from the proceeds of loans made therefor. Provision is 
made for a sinking fund sufficient to take care of the loans when 
they mature. Eventually the whole expense is to be borne by the 
cities and towns included in the system, in the following manner : 
the amount of money required each year to meet the interest 
charges, the requirements of the sinking fund, and the expenses 
of maintenance, are to be assessed upon the cities and towns 
within the district served. This assessment is to be apportioned 
by a commission appointed every five years by the governor and 
council, to determine the amount of the apportionment for the suc- 
ceeding five years. The report of this commission when accepted 
by the court is binding upon all parties. 

Under section 13 of the act quoted a commission was appointed 
to assess the expenses for the first five years. The report of this 
commission having been accepted by the court, assessments were 
made for this five years and collected from the several cities 
and towns. 

Section 14 of the same act provides that before the expiration 
of said term of five years another commission shall be appointed 
to make the apportionment for the next period of five years ; 
which apportionment is in like manner binding upon all parties. 
But inasmuch as this commission failed to make its report sea- 
sonably, no assessment could be collected during the year 1896. 

Assuming that it is constitutional to collect the expenses of 
the sewerage system from the cities and towns within the district, 

1 do not think that it is unlawful to collect from such cities and 
towns the amount required each year, even if by reason of cir- 
cumstances not within the control of the treasurer it becomes 
necessary to collect assessments for two years in one year. The 
purpose of the act is to impose all the expenses of the system upon 
the cities and towns within the district. The charges are so dis- 



1898.] PUBLIC DOCUMENT — No. 12. 45 

tributecl as to be annual, but there is no express provision in 
the statute that the assessments are necessarily to be annual It 
is, of course, the duty of the treasurer to make the assessments 
as soon as he may lawfully do so ; and to compute the amount 
required for a given year, together with the deficiency in the 
assessment of the previous year, and to make his assessment in 
accordance with the apportionment fixed by the commission. 
The fact that he was prevented from doing this in the year 1896 
does not relieve the cities and towns in the district from the obli- 
gation to pay the assessment due for the year 1896. They are 
charged with no additional burden if the amount which should 
have been assessed in 1896 is added to the amount to be assessed 
for 1897, and both assessments collected together. The law is not 
to be construed so that the burden of any year shall for any reason 
fall upon the Commonwealth. The towns and cities under the 
act owe the Commonwealth the expenses incurred under the scheme 
of the act for the year 1896. The fact that you were unable to 
collect the tax for that year does not discharge the debt. 

Whether the Legislature shall deem it equitable to require pay- 
ment of the expenses of two years in one year is not for your 
consideration. If no provision is made for the relief of the towns, 
I am of opinion that it is your duty to assess for the current 
year the whole amount required both for 1896 and 1897, and 
that you may lawfully do so. 
Yours very truly, 

Hosea M. Knowlton, Attorney -General. 



Constitutionality of bill (Senate Bill No. 188 of 1897). — Brigadiers-gen- 
eral. — Terra of office. 

Senate Bill No. 188 of 1897, entitled " An act relative to the term of office 
of brigadiers-general in the militia," is not in violation of any pro- 
vision of the Constitution of Massachusetts or of the United States. 

Mat 26, 1897. 
To His Excellency Roger Wolcott, Governor. 

Dear Sir: — In response to your verbal request I have ex- 
amined the bill entitled " An Act relative to the term of office of 
brigadiers-general in the militia" (Senate Bill No. 188), upon the 
question of its constitutionality. 

It has been suggested that the bill is unconstitutional for the 
reason that it is in violation of the prerogatives of the commander- 
in-chief, who, it is claimed, has the exclusive right under the con- 
stitution of discharge of officers of the militia. 

In my opinion, this objection is not well taken. 



46 ATTORNEY-GENERAL'S REPORT. [Jan. 

The office of brigadier is recognized in the Constitution of 
Massachusetts. Chapter II, sec. I, art. X, provides for the manner 
of election of brigadiers ; and a subsequent paragraph in the same 
article further provides that, having been elected and commis- 
sioned, they shall not be removed from office but by the address 
of both houses to the governor, or by fair trial and court martial. 
This portion of the article relating to removal, however, was re- 
pealed by article IV of the amendments, which provides that " all 
officers commissioned to command in the militia may be removed 
from office in such manner as the legislature may, by law, pre- 
scribe." Conceding that the words in the amendment " by law" 
are to be interpreted as limiting the Legislature to general laws 
upon the subject, and not as authorizing special acts of removal 
directed against individuals, I cannot yet interpret the amendment 
otherwise than as authorizing the Legislature to make such general 
laws relating to the removal of officers of the militia as in its wis- 
dom it deems expedient. The amendment confers the power of 
removal upon the Legislature, to be exercised in such manner as 
it may provide. 

I am aware that by chapter II, sec. I, art. VII, of the Constitu- 
tion the governor is made commander-in-chief of the militia, with 
all the powers and duties incident thereto. If this provision stood 
alone, it might be construed as giving the governor the right of re- 
moval of officers of the militia. But to hold that no officer of the 
militia can be removed excepting by act of the governor, is to deny 
any meaning or effect to the amendment of the constitution above 
quoted. The plain intent of the amendment was to confer upon 
the Legislature the right to provide for removal of officers of the 
militia. This may be done by a general law fixing a time limit, by 
a general law retiring officers at any given time or age, or in such 
manner as the Legislature may prescribe. It is well settled that 
the Legislature has the power to shorten the term of office of any 
officer the tenure of whose office is not fixed by the constitution. 
Taft v. Adams, 3 Gray 126. 

The bill in question provides, substantially, that all brigadiers, 
who, on the first day of August, 1897, shall have held their posi- 
tions for seven years or more, shall be placed on the retired list on 
that day. The bill is general in its terms, and applies to all of a 
class of officers created by the Constitution. The fact that there 
are but two brigadiers in commission, and that both of them 
happen to have been in commission for more than seven years, 
does not make the bill special in its character. Special legislation 
is that which operates to deprive individuals specifically of their 
rights, privileges and immunities, discriminating between them 



1898.] PUBLIC DOCUMENT — No. 12. 47 

and others in the same situation. Legislation which applies 
equally to all of a class is not made special by the fact that the 
number in the class is limited. 

It has further been suggested that under St. 1893, c. 367, § 63, 
a method of discharge was provided, and that this bill is in viola- 
tion of the provisions of that act. It scarcely need be said, in 
reply to this objection, that, in so far as the bill in question is in- 
consistent with the provisions of the statute of 1893, it operates as 
a repeal of that statute. 

The bill in question does not differ essentially from St. 1876, 
c. 204, § 3, by which all the general and field officers were removed 
from office. No serious question was ever made of the constitu- 
tionality of this act. Moreover, it was discussed in an opinion of 
the Justices of the Supreme Judicial Court, given to the Governor 
and Council and printed in 132 Mass., 600. The section discharg- 
ing the line officers was referred to without criticism. 

It is further suggested that the bill is in violation of article I, 
sec. 9 of the Constitution of the United States, providing that no 
bill of attainder shall be passed ; and also of article XII of the 
Declaration of Rights, providing that no subject shall be " de- 
prived of his property, immunities or privileges, etc., but by the 
judgment of his peers or the law of the land." 

It is claimed that the bill is in effect judgment passed upon the 
present brigadiers-general, convicting them of inefficiency, and re- 
moving them from office therefor. If this were so, it would 
undoubtedly be in conflict, for that reason, both with the Consti- 
tution of the United States and the Constitution of Massachusetts. 
It may well be added that the Legislature could make charges 
against an officer, try him therefor, and punish him by removing 
him from office and making him ineligible for re-election. 

But this objection takes into account rather the causes which may 
have led to the passage of the bill than to the language of the 
bill itself. Its constitutionality is to be determined not by its his- 
tory, but by its provisions. The courts have no right to infer that 
the reason which animated the Legislature in passing the bill in 
question was to punish certain officers of the militia for previous 
acts or omissions by them. 

The bill is in terms a declaration by the Legislature that the term 
of office of brigadiers-general should be limited to seven years. 
This limitation is fixed thereupon not only for those who shall 
hereafter be elected to the office, but for those who are now in office 
for an indefinite tenure. As already stated, it has been held that 
the Legislature had the right to abridge the term of office of any 
officer whose tenure is not fixed by the Constitution. Moreover, 



48 ATTORNEY-GENERAL'S REPORT. [Jan. 

as I have already stated, the Legislature has the power under the 
Constitution to provide for the removal of the officers of the mil- 
itia. It is to be presumed that this bill is passed in exercise of 
the right so conferred upon the Legislature. Indeed, the idea of 
punishment or attainder is clearly negative, by reason of the fact 
that the bill is general in its terms, and applies to officers hereafter 
elected. Those who are removed from office by the provisions of 
section 2 may not justly complain that their removal is in the nature 
of censure or punishment, but rather in the exercise of a policy con- 
cerning the tenure of offices of the militia established by the bill. 

It remains to consider another objection to the bill, which to my 
mind presents far greater difficulties than those heretofore consid- 
ered. Section 2 provides that the officers who cease to hold office 
on the first day of August shall be ineligible for re-election ; and 
the same ineligibility is imposed upon all future brigadiers-general 
after one term of service. It is claimed that this is in violation of 
article IX of the Declaration of Rights, which is as follows : " All 
elections ought to be free ; and all the inhabitants of this Com- 
monwealth, having such qualifications as they shall establish by 
their frame of government, have an equal right to elect officers, 
and to be elected, for public employments." 

I have no doubt that the clear purpose of this article is to confer 
upon every citizen, having the qualifications prescribed by the Con- 
stitution, the right to vote for offices of the government and the 
further right to be elected to such offices. It has uniformly been 
held that the Legislature has no authority to limit the right of suf- 
frage by imposing qualifications in addition to those fixed by the 
Constitution. On the other hand, I do not know of any instance 
where the right of every citizen to be a candidate for all offices of 
government has been attempted to be abridged or limited by impos- 
ing qualifications or restrictions not found in the Constitution. 
For example, chapter II, section I, article II of the Constitution 
provides that no person shall be eligible to the office of governor 
unless at the time of his election he shall have been an inhabitant 
of this Commonwealth for seven years next preceding. It would, 
in my opinion, be unconstitutional to add to that provision by 
enacting that the term of residence must be ten years, or any 
term longer than seven years. For the same reasons, an act which 
should attempt to limit the number of times to which a citizen 
could be elected to the office of governor, or to fix an age limit 
between which he could not be elected, would be in violation of the 
spirit if not the letter of article IX of the Declaration of Rights 
above quoted. The purpose of the article was to give every citi- 
zen possessing the constitutional qualifications the right to be a 



1898.] PUBLIC DOCUMENT — No. 12. 49 

candidate for office. To say that one could not bold the office of 
governor if over a given age, or if he had been governor a certain 
number of years, would be to deprive that citizen of the right 
assured to him by the article quoted. 

In discussing this article, Chief Justice Field, in Brown v. Rus- 
sell, 166 Mass. 14, at page 21, says that " the article, so far as it 
extends, does declare the principle that all persons having the 
requisite qualifications have an equal right to elect and to be elected 
to public office." 

If, therefore, the office of brigadier-general is included within 
the scope of this article, the bill in question cannot stand. No 
qualifications limiting the eligibility of citizens to the office of 
brigadier are found in the Constitution. If, therefore, every 
citizen has the constitutional right to be a candidate for the office 
of brigadier-general, the bill in question takes away that right by 
denying to those who have held the office for seven years the right 
to be a candidate for election thereto. 

The political rights of citizens are not lost by any number of 
elections to office. One who is elected to the office of governor 
has still the same right to be a candidate for re-election. So one 
who may be a candidate for the office of brigadier-general under 
the Constitution may be a candidate again, and his right in this 
respect cannot be abrogated by the Legislature. 

But, upon such consideration of the subject as I have been able 
to give in the limited time allowed me, I am unable to reach the 
conclusion that the provisions of article IX of the Declaration of 
Rights apply to officers of the militia. It is true that they are 
recognized in the Constitution. The manner of their election is 
provided, as well as the manner of their removal from office ; but 
they are not officers of the civil government, to which primarily, 
at least, the tk Declaration of Rights and Frame of Government " 
was intended to apply. That instrument was declared in the 
preamble to be the forming of "a new constitution of civil 
government." 

The election of military officers is not such an election as is 
referred to in article IX, which declares that " all elections ought 
to be free." The electors of officers of the militia are by the 
Constitution " the members of the trained band and alarm list," 
who alone have the right to elect captains and subalterns ; the 
latter being the electors of the field officers, who themselves elect 
the brigadiers. It may be assumed that the members of the 
Massachusetts volunteer militia, an organization differing essen- 
tially from the enrolled militia, constitute what is termed in the 
Constitution as " the trained band and alarm list; " and therefore 



50 ATTORNEY-GENERAL'S REPORT. [Jan. 

the Constitution has observed it by placing the election of militia 
officers in their hands. But every citizen has not the right to be a 
member of the active militia. Numerous qualifications for enlist- 
ment has-e been enacted by the Legislature, and the policy has long 
since beeu adopted of permitting companies to choose their own 
members. There is scarcely any analogy between the militia and 
the departments of the civil government. While the Constitution 
clearly recognizes the militia, it by no means makes the holding 
of office therein a political right. On the contrary, while, as I 
have alreadj 7 said, no attempt has ever been made to impose quali- 
fications upon the rights of citizens to be elected to civil office, 
the Legislature has from time to time prescribed the qualifications 
of those who should be elected to the offices of brigadier. Vid. 
Gen. Sts., c. 13, § 36 ; Pub. Sts., c. 14, § 33 ; St. 1893, c. 367, § 
32. If an office in the militia is to be regarded as one which every 
citizen has the constitutional right to be elected to, then the quali- 
fications imposed by the statutes referred to are unconstitutional. 
That it has not been so considered is obvious upon consideration 
of the history of legislation in regard to the militia. If the Legis- 
lature may prescribe that a person under conviction of crime, or a 
common drunkard, a pauper, or a person disqualified by law from 
enrolment in the militia shall be ineligible to military office, it 
certainly has the right to affix other qualifications ; as, for ex- 
ample, that the candidate shall be taken from the ranks of the 
militia, or that he shall be below a given age, or, as in the case of 
the bill in question, that he shall not have held office for a certain 
number of years. 

It may well be doubted, therefore, whether article IX of the 
Declaration of Rights applies to officers of the militia ; and 
whether it should not be construed as referring only to civil and 
political offices. This view is much strengthened, as I have 
already stated, by the fact that it has been so uniformily con- 
strued by the Legislature. While, therefore, I am unable to say 
that the question is free from doubt, I am yet of opinion that the 
presumption of constitutionality which attaches to legislative acts 
is to be invoked in favor of the bill. 

Upon consideration, therefore, of all the objections which have 
been suggested against the bill, I am constrained to advise your 
Excellency that it is not in violation of any provisions of the 
Constitution of Massachusetts or of the United States. 
Yours very truly, 

Hosea M. Knowlton, Attorney -General. 



1898.] PUBLIC DOCUMENT — No. 12. 51 



Nature of assessment insurance. — Particular policy defined. — Agreement 
by foreign corporations as to nature of business. — Admission to do 
business in Massachusetts. 
A contract of insurance, providing for the payment of a fixed sum for an- 
nual dues to cover expenses and limiting the maximum number of 
assessments of a fixed amount that may be levied per month to cover 
losses, is not a contract of insurance upon the assessment plan, under 
St. 1890, c. 421. 
A foreign insurance company, that writes contracts on that plan in other 
States, should not be admitted to do business in this State, although 
it agrees to write contracts in this State, on the assessment plan, ac- 
cording to our law ; because, the policies issued in Massachusetts 
being payable out of the receipts of the company generally, are 
payable, in part at least, from other sources than the premiums 
received " by assessment upon other persons holding similar con- 
tracts." 

May 28, 1897. 
Hon. George S. Merrill, Insurance Commissioner. 

Dear Sir : — Your letter of April 1 requires my opinion upon 
two questions ; first, whether the form of limited term policy, 
with the limitations provided therein, a copy of which is submitted 
with your letter, is a level premium or an assessment contract ; 
and, second, whether a foreign corporation can properly be ad- 
mitted upon its agreement not to issue contracts in Massachusetts 
which it issues to members elsewhere. 

The form of policy submitted with your letter is that issued by 
the Knights Templars and Masons Life Indemnity Company of 
Chicago, a foreign corporation. The company professes to issue 
policies upon the assessment plan, so-called. The object of the 
company is stated in its constitution to be " to furnish life indem- 
nity or pecuniary benefits to the widows, orphans, heirs, relatives, 
devisees or legatees of deceased members, or to members physi- 
cally disabled." Article 4, section 4, of the constitution provides 
that "upon the death of any member an assessment, increasing 
with age, shall be made upon the surviving members, provided an 
assessment is needed, according to the following table of rates." 
There is also provision for annual dues to cover expenses, of one 
dollar per one thousand dollars. The board of directors are 
further authorized to issue limited term policies of insurance, such 
limited term not to exceed five years, on such conditions as the 
Board of Directors shall deem for the best interests of the com- 
pany. The form of policy submitted is conditioned upon the 
payment by the insured of " all dues and assessments made upon 
him as such member, in pursuance of the constitution and by-laws 
of the company." 



52 ATTORNEY-GENERAL'S REPORT. [Jan. 

So far the plan of assessment insurance is followed. But in 
the form submitted with your letter there is a further contract that 
" the said member shall pay only one assessment per month, ac- 
cording to the table printed on the back of this policy, in addition 
to the annual due of one dollar per thousand, as hereinafter pro- 
vided, unless such an emergency should arise that the said one 
assessment per month would not be sufficient to pay his proportion 
of the losses of the company on policies that are not over five 
years old ; in which event extra assessments may be levied for a 
sufficient sum to comply with the law of the State of Illinois." 
This provision is in effect a contract limiting the maximum number 
of assessments for losses arising under a certain class of policies 
to one per month. 

This contract of limitation of the number of assessments is 
plainly a departure from the plan of assessment insurance. The 
essential difference between the sor-called ''level premium" and 
''assessment" forms of insurance, is that in "level premium" 
insurance, the company, whether mutual or stock, makes its own 
computations as to the probable amount required of the insured to 
enable it to fulfil its contract with him, and establishes a rate of 
premium based upon such calculation. The insured takes no re- 
sponsibility of the accuracy of the computation. He is entitled to 
have the amount of his policy paid upon the fulfilment of the event 
insured against, whether the premiums are sufficient to pay it or 
not. If they are in excess of the amount required, the company, 
unless there is some statutory or contract provision to the contrary, 
may retain the excess ; and, on the other hand, if they fall short, 
the company must make up the deficiency. 

Assessment insurance proceeds upon a basis essentially different. 
The company attempts no computation. It agrees with the insured 
that w r hen a death or disability happens, under which a policy 
becomes payable, it will make an assessment upon all other per- 
sons insured in the company for the purpose of paying the loss. 
By the statutes oi Massachusetts, it is authorized to make a con- 
tract limiting the amount of each assessment, but may not make a 
contract limiting the number of assessments. Under the operation 
of this form of insurance no premiums are payable by the insured 
until a death happens ; consequently, in the earlier years of such a 
company the amount of assessments called for may be expected to 
be comparatively inconsiderable; while, on the other hand, as 
members grow old, and mortality increases, the number of assess- 
ments will proportionately increase, so that eventually the aggre- 
gate of assessments in any given year will greatly exceed the 



1898.] PUBLIC DOCUMENT — No. 12. 53 

amount which would have beeu payable under a level-premium 
contract. The company under the form of its establishment, as 
well as by its contract of the insured, should have no other re- 
sources to pay losses, excepting assessments. It is claimed that 
this method is more equitable, inasmuch as the insured pays the 
exact cost of insurance and not an arbitrary sum fixed by contract, 
as in the case of a level-premium insurance. 

It is obvious, therefore, that when a company makes contracts 
containing a provision like that submitted with your letter, in 
which it agrees to a limitation of the maximum number of assess- 
ments, it is no longer insurance upon the assessment plan. The 
company is not a mere agent to collect assessment as losses occur, 
which is the theoretical position of an assessment company. It 
goes further, and agrees that a limited number of assessments will 
be sufficient to pay all losses. This being so, one of two things 
must happen. Either it must make its assessments larger than 
the amount actually required to pay death losses as they occur so 
that it may be able to provide for the contingency of more than 
one death per month, or it incurs the risk of being unable to pay 
all the losses that may occur. 

Whether such a contract is in all respects a level-premium con- 
tract, it is not necessary to consider. It is sufficient for the pur- 
poses of your inquiry to say that it is certainly not a contract upon 
the assessment plan. It is not within the terms of the definition 
given to assessment insurance by St. 1890, c. 421, in which it is 
said that " every contract whereby a benefit is to accrue to a 
party . . . named therein, which benefit is conditioned not upon 
fixed payments but upon the collection from time to time of an 
assessment upon persons holding similar contracts, shall be deemed 
a contract of insurance upon the assessment plan." 

For these reasons, I am of opinion that the form of policy sub- 
mitted with your letter is not an " assessment" contract, within 
the meaning of that word as used in the statutes of the Common- 
wealth relating to insurance. 

Your letter further states that the company will waive the issu- 
ance of this form of insurance in Massachusetts, and confine 
itself here to the business of insurance upon the assessment plan. 
Your second question is, whether it may properly be admitted to 
do business in Massachusetts upon such an agreement. 

The difficulty with this proposition is that the company is still 
at liberty, and presumably will continue, to issue policies in other 
States in the form prohibited here. The losses incurred on policies 
issued in Massachusetts will be paid out of the assessments received 



54 ATTORNEY-GENERAL'S REPORT. [Jan. 

by the company, including those received on such term policies. 
I have already stated the reasons which lead me to the conclusion 
that such term policies are not contracts of insurance upon the 
assessment plan. It follows that the benefits accruing to the 
policies issued upon the assessment plan in Massachusetts are not 
conditioned upon the " collection of assessments upon persons 
holding similar contracts." 

If one form of policy is issued in Massachusetts, and another 
is issued elsewhere, those issued in Massachusetts, being payable 
out of the receipts of the company generally, are payable, in part 
at least, from other sources than the premiums received " by 
assessment upon persons holding similar contracts." The Massa- 
chusetts policies, therefore, cease to be policies upon the assess- 
ment plan, within the statutory definition given above. That 
being so, they should not be authorized in this Commonwealth. 
Yours very truly, 

Hosea M. Knowlton, Attorney- General. 



Vagrant. — State Farm. — Authority to commit. 

Vagrants other than those committed in accordance with the provisions of 
Pub. Sts., c. 88, § 5, may not lawfully be sentenced to the State Farm 
for a period of less than six months, unless transferred thereto as 
authorized by law ; but a person committed as a vagrant to the State 
Farm by a court of competent jurisdiction for a period less than six 
months may be lawfully held therein ; and is not entitled to be dis- 
charged therefrom on habeas corpus. 

May 29, 1897. 
H. M. Blackstone, Esq., Superintendent State Farm. 

Dear Sir : — Your letter of May 4 requires my opinion upon the 
question whether you may legally hold a vagrant committed to the 
State Farm for less than six months, other than one committed in 
accordance with the provisions of Pub. Sts., c. 88, § 5. 

St. 1884, c. 258, § 1, which is the only statute authorizing the 
direct commitment of vagrants to the State Farm, provides that 
they may be sentenced to the State Workhouse (now the State 
Farm) for not less than six months nor more than two years. Pub. 
Sts., c. 207, § 42, provides that vagrants may be sentenced to the 
workhouse for a term not exceeding six months. But the word 
" workhouse " in this statute obviously refers to the local, and not 
to the State, workhouse. The section is a re-enactment of St. 
1866, c. 235, § 3, under which vagrants " shall be committed for a 
term not exceeding six months to the house of correction for the 



1898.] PUBLIC DOCUMENT — No. 12. 55 

county, or the house of industry or workhouse, where the convic- 
tion is had." 

Under the system of transfers authorized by the statutes of the 
Commonwealth a vagrant transferred to the State Farm may be 
held there for the remainder of the term of his sentence, whether 
that is for less than six months or not. Male vagrants committed 
to a house of correction may be removed therefrom by the Com- 
missioners of Prisons to the State Farm (St. 1885, c. 35, § 1), 
" there to be kept during the remainder of the sentence, in the same 
manner as if such person had been originally committed thereto." 
Pub. Sts., c. 219, § 6. Male vagrants may also be punished 
by imprisonment in the Massachusetts Reformatory under St. 
1886, c. 323, § 5, and may then be transferred to the State Farm, 
there to serve the remainder of their original terms of sentence. 
St. 1887, c. 292. 

It follows that, unless transferred under the provisions of the 
statutes quoted in the preceding section, vagrants cannot lawfully 
be sentenced to the State Farm for a period of less than six 
months. 

It does not follow, however, that you may not legally hold a 
vagrant committed for less than six months. I assume that the 
person so committed was sentenced by a court having jurisdiction 
of the person and of the offence charged ; the only irregularity 
being that the sentence was for a less time than the minimum sen- 
tence to the State Farm. This is error, which may be corrected 
by the court on writ of error by increasing the sentence to the min- 
imum period if the person imprisoned so desires. Lane v. Com- 
monwealth, 161 Mass. 120. But he is not entitled to relief from 
sentence on habeas corpus, nor to recover damages from the com- 
mitting officer or from the keeper of the State Farm, because there 
is error in his sentence. Inasmuch as the court has jurisdiction of 
the offence, his only remedy is, as I have indicated, by suing out a 
writ of error, the result of which will be that his sentence will be 
corrected, as authorized by Pub. Sts., c. 187, § 13. Sennott's 
Case, 146 Mass. 489. 

Yours very truly, 

Hosea M. Knowlton, Attorney- General. 



56 ATTORNEY-GENERAL'S REPORT. [Jan, 



Massachusetts Benefit Life Association. — Commission of investigation. 
— Employees of commission. — Compensation. — St. 1896, c. 515, and 
St. 1897, c. 415. 

The agents, examiners, experts and counsel employed by the special com- 
mission appointed under the authority of St. 1896, c. 515, to investi- 
gate the affairs of the Massachusetts Benefit Life Association have no 
valid claim upon such association for their compensation. 

Such commissioners do not incur any personal liability in employing 
agents, examiners, experts and counsel under the authority of St. 
1896, c. 515, if such employment is made and expressed to be made in 
accordance with the provisions of the said statute. 

St. 1896, c. 515, authorizing such commissioners to employ agents, ex- 
aminers, experts and counsel, and providing for the payment by the 
said association of the expenses and compensation of the commis- 
sioners and of persons so employed, furnishes no certain means of col- 
lecting the same from the said association. 

It is the business of the Attorney-General to deal with questions of law 
only, and he is not called upon to answer the inquiry whether it is the 
duty of each commission to continue its investigation without certain 
and adequate means being provided to pay for its services and expenses. 

St. 1897, c. 415, does not relieve the special commission appointed under 
the authority of St. 1896, c. 515, of any duties imposed upon it by the 
latter statute, but simply imposes a limitation of time upon it regard- 
ing the performance of such duties. 

June 3, 1897. 

To His Excellency Roger Wolcott, Governor. 

Dear Sir : — I have the honor to acknowledge the receipt of the 
letter of Hon. H. W. Bragg, chairman of the special commission 
appointed to investigate the affairs of the Massachusetts Benefit 
Life Association, addressed to your Excellency, and referred to 
me for reply. 

St. 1896, c. 515, provides in section 3 that the commission 
shall have the power to employ agents, examiners, experts and 
counsel. The provision as to their compensation is as follows : 
" The reasonable compensation of and expenses incurred by such 
commission for such examination, including the payment of ex- 
penses and compensation of all persons employed by said com- 
mission, shall be paid by the company or association, after the 
same have been first approved by the governor and council." 

The first question contained in the letter is, whether the agents, 
examiners, etc., employed by the commission "have any valid 
claim for their compensation upon the association." Clearly not. 
Their contract is with the commissioners and not with the associa- 
tion, and they would have no privity to maintain suit against the 
association thereon. If the association refuses to pay the com- 
missioners' bills, they having been approved by the governor and 
council, whatever remedy, if any, exists by reason of such neglect 



1898.] PUBLIC DOCUMENT — No. 12. 57 

is by suit by the Commonwealth, under whose authority the com- 
mission acts. This matter will be further discussed in my answer 
to your third question. 

The second question contained in said letter is whether the com- 
missioners " incur any personal liability in so employing such 
persons." Not if the employment is made and expressed to be 
made under the provisions of St. 1896, c. 515. 

The third question is as follows : " Does the act provide any cer- 
tain and adequate means for paying such persons so employed ?" 
The practice of collecting from Massachusetts corporations expenses 
of supervision and investigation is not new. Pub. Sts.,c. 112, § 12, 
provides that the expenses of the Board of Railroad Commissioners 
shall be borne by the several railroad corporations according to their 
gross earnings, and to be apportioned by the Tax Commissioner, 
who shall assess such expenses due from each upon said corporation, 
" and such assessments shall be collected in the manner provided 
by law for the collection of taxes upon corporations." There is 
also a provision in St. 1894, c. 522, § 6, paragraph 3, under which 
the expenses of examination of any foreign insurance company by 
the Insurance Commissioner shall be paid by the company. No 
provision for the enforcement of this assessment is made, but, as 
the admission of the company is within the control of the Insur- 
ance Commissioner, none is needed. 

I know of no certain and adequate means of collecting the ex- 
penses and services of the commission from the Massachusetts 
Benefit Life Association, and herein is the principal defect in St. 
1896, c. 515. 

The fourth question inquires whether it is the duty of the com- 
mission to continue its investigation without certain and adequate 
means being provided to pay its expenses and services. I do not 
think the Attorney-General is called upon to answer this inquiry. 
His business is to deal with questions of law only. How far the 
commission may feel authorized to abstain from performing the 
work assigned to it by the statute in consequence of the lack of 
effective provision for payment of its services, may be a question 
for the consideration of your Excellency, under whom the com- 
mission exists, but not of the law officer. 

The fifth and last question contained in the letter submitted in- 
quires whether St. 1897, c. 415, relieves the commission from the 
provisions of St. 1896, c. 515. I can see no reason for answer- 
ing this question in the affirmative. The last-named statute simply 
imposes a limitation of time, but no limitation of duty. 
Yours very truly, 

Hosea. M. Knowlton, Attorney -General. 



58 ATTORNEY-GENERAL'S REPORT. [Jan. 

Support of poor in towns. — St. 1897, c. 374, construed and its limits 
defined. — Duties of overseers of the poor. 

The provisions of St. 1897, c. 37-1, entitled " An act relative to the sup- 
port of the poor in towns," apply to towns only, and not to cities. 

Pub. Sts., c. 28, § 2, which enacts that all laws relating to towns shall 
apply to cities so far as they are not inconsistent with the general or 
special provisions relating thereto, was not intended to provide that in 
all statutes in which duties were imposed upon towns the word " town " 
should include cities, but only in such general laws as relate to towns 
themselves considered as municipalities. 

The provisions of St. 1897, c. 374, are applicable to such children as come 
within the meaning of the word " paupers." 

The provisions of St. 1897, c. 374, do not apply to inmates of the State 
institutions for the insane supported therein bj T cities and towns. 

The provisions of St. 1897, c. 374, are not applicable to persons who are 
assisted to a greater or less extent by the overseers of the poor, on 
account of their partial inability to care for themselves. 

The provisions of St. 1897, c. 374, are not applicable to paupers provided 
for at the State Farm or State Almshouse. 

Under the provisions of St. 1897, c. 374, each overseer of the poor in a 
town is required to visit each place where the town paupers are pro- 
vided for, in person, and may not make such visits through an agent. 

June 14, 1897. 
John D. Wells, Esq., Clerk, State Board of Lunacy and Charity. 

Dear Sir : — Your letter of May 24 submits a number of ques- 
tions relating to the interpretation of St. 1897, c. 374, to which I 
beg to reply specifically as follows : — 

1. "Do the provisions of the law apply to the cities of the 
Commonwealth, as well as to its towns?" 

The statute is entitled " An act relative to the support of the 
poor in towns." It provides that " In towns where paupers are 
provided for otherwise than in the workhouse or almshouse the 
overseers of the poor shall investigate each place where the town 
paupers are to be supported, and shall make such contract for the 
support of town paupers as in the judgment of the overseers of the 
poor will secure proper care and maintenance for such paupers." 
It further provides for a record of each case, containing the terms 
and conditions of the support agreed upon ; and for a certificate to 
be made by a majority of the overseers of the poor that an inves- 
tigation has been made, and that they are satisfied that the poor 
of the town will be well and properly cared for. In terms the act 
applies to towns, and I am of opinion that it is intended to apply 
to towns only, and not to cities. 

The only possible doubt arises from the provisions of the Public 
Statutes, one of which is chapter 3, section 3, clause 23, declaring 
that " the word l town' may be construed to include cities ; " the 



1898.] PUBLIC DOCUMENT — No. 12. 59 

other is chapter 28, section 2, to wit: " Chapter 27 and all other 
laws relating to towns shall apply to cities so far as they are not 
inconsistent with the general or special provisions relating there- 
to." It is to be observed, however, that the chapter of the Pub- 
lic Statutes relating to the support of paupers (chapter 84) 
makes repeated use of the expression " cities and towns." That, 
being in the same statutes as the two provisions referred to 
(making the word " town " inclusive of cities) , is significant. Un- 
less we are to conclude that the Public Statutes were carelessly 
drawn, there must have been in the minds of the legislators some 
reason for making the statutes relating to the support of poor 
apply in terms to cities as well as to towns ; for otherwise the gen- 
eral provisions of chapter 27 would have rendered it unnecessary 
to repeat so often the expression " cities and towns." It is clear, 
therefore, that the word "town" does not include cities in all 
the statutes which have to do directly or indirectly with towns. 
The distinction may be thus stated. Chapter 27, in which it is 
provided that the word "town" should include cities, deals di- 
rectly with privileges, duties and obligations of towns as munici- 
palities. Chapter 84 of the Public Statutes, on the other hand, 
deals principally with the support of paupers, and the mere fact 
that paupers must be supported by towns does make it in terms 
an act " relating to towns." It is an act relating to a specific 
matter of legislation, to wit : the support of paupers, and as to 
which it may, and in fact does, happen that the duties imposed 
upon towns and upon cities are different. In my opinion, there- 
fore, it was not the purpose of Pub. Sts., c. 28, § 2, to provide 
that in all statutes in which duties were imposed upon towns 
the word "town" should include cities, but only such general 
laws as related to towns themselves considered as municipalities. 

The act under consideration is binding upon towns, but the 
subject of legislation with which it deals is indicated by its title, 
to wit : " An act relating to the support of poor in towns." The 
words " in towns " limit what otherwise would have been the gen- 
eral scope of the act, and make it applicable not to cities, but 
to towns only. 

2. " Does the word ' paupers ' in the law include children as 
well as adults ? " 

The word "paupers" in the third article of the amendment to 
the Constitution of the Commonwealth was defined, in the Opinion 
of the Justices, 11 Pick. 539 (Feb. 14, 1832), to mean "persons 
claiming assistance for themselves or families from the provisions 
made by law for the poor." It was there said that the word had 
acquired a precise and technical meaning. See also Opinion of 



60 ATTORNEY-GENERAL'S REPORT. [Jan. 

the Justices, 124 Mass. 596 ; Sturbridge v. Holland, 11 Pick. 459 ; 
Fiske v. Lincoln, 19 Pick. 473 ; Com. v. Cambridge, 20 Pick. 267. 

Such meaning, therefore, is to be given to the word paupers in 
the act of 1897. Pub. Sts., c. 3, § 3, cl. 3. But " paupers " is a 
word broad enough to include children, even taking its meaning 
to be as technical as is above stated. Provision is made by law 
for the settlement of children under the pauper laws. The pro- 
visions of the statute in question are certainly as important in 
their application to children as to adults ; perhaps even more so. 
I can see no reasonable ground to suppose that the act does not 
include such children as come within the meaning of the word 
" paupers." 

3. "Do the provisions of the law apply to inmates of the State 
institutions for the insane supported therein by the cities and 
towns ? " 

The purpose of the laws is to take precaution (1) against pau- 
pers being supported in improper places by providing for investi- 
gation by the overseers of each place where such paupers are 
supported, and for compulsory periodical visits by the overseers to 
such places, and by allowing the State Board permission to visit 
such places ; and (2) against paupers being placed out upon terms 
and conditions not conducive to their proper care and mainten- 
ance, by compelling the overseers to keep a full record of all cases 
" where paupers are provided for otherwise than in a workhouse 
or almshouse," and to certify upon the records that they have 
made investigation in each case, and are satisfied that the paupers 
will be well and properly cared for ; and furthermore by allowing 
the State Board to determine in what manner overseers of the poor 
shall contract for the support of town paupers. 

In the case of paupers supported in the State lunatic institu- 
tions, it is clear that, though such persons may be technically 
within the letter of the act of 1897 as being provided for " other- 
wise than in a workhouse or almshouse," yet the spirit of the law 
does not apply to them. None of the precautions provided for by 
the act is necessary in such cases. Ample provision is made by 
law to secure the proper management of these institutions (Pub. 
Sts., c. 87, §§ 6, 7, 9), and to provide for the payment of the 
expenses of the support of inmates (Pub. Sts., c. 87, § 31). 
Where the language of the statute in its ordinary meaning leads 
to a manifest inconvenience or absurdity, other words may be in- 
terpolated ; and when the real intent of the Legislature is plain, 
the language of the statute must be given such a construction as 
will carry that intent into effect. The absurdity of requiring over- 



1898.] PUBLIC DOCUMENT — No. 12. 61 

seers of the poor, under pain of a fine of one hundred dollars, 
to investigate and visit State lunatic hospitals once every three 
months, if any town pauper happens to be there, is apparent, and 
cannot have been intended by the Legislature. 

4. " Does the law apply to paupers partially supported, as well 
as to those fully supported?" 

I assume that this question refers to cases where persons are 
assisted to a greater or less extent by the overseers of the poor, on 
account of their partial inability to care for themselves. In these 
cases the town takes no responsibility of their surroundings, or of 
the proper care and attention given to them. They still remain in 
the control of their own affairs, free to live where and how they 
please. The act does not in terms include such persons, and in 
my opinion is not intended to include them. 

5. " Do the words ' workhouse or almshouse,' in section 1, ex- 
clude the State Farm, as well as the State Almshouse, from the 
operation of the law ? " 

It is clear that the words "otherwise than in a workhouse or 
almshouse " are sufficiently comprehensive to exclude the State 
Farm and the State Almshouse from the operation of the statute. 
Before the passage of St. 1887, c. 264, the State Farm was called 
the State Workhouse. Pub. Sts., c. 88. The reason, moreover, 
which I have suggested for excluding State lunatic hospitals from 
the scope of the statute, applies with equal force to the State Farm 
and to the State Almshouse. 

6. " Are the overseers of the poor required by the law to make 
visits in person, or can such visits be made by an agent appointed 
by them?" 

I am of opinion that the duty imposed by the statute is personal, 
and is imposed upon each overseer ; that is to say, each overseer 
of the poor in the town is required, once at least in three months, 
to visit each place where the town paupers are provided for, and 
to make a record of his visit and of the condition of the paupers 
visited. 

Yours very truly, 

Hosea M. Knowlton, Attorney- General. 



62 ATTORNEY-GENERAL'S REPORT. [Jan, 



Assistant clerks of courts appointed under Pub. Sts., c. 159, § 9. — 

Compensation. 
The salary of an assistant clerk of courts appointed by the clerk of courts 
under authority of Pub. Sts., c. 159, § 9, must be paid by the latter, 
and cannot legally be paid from the county treasury under the pro- 
visions of Pub. Sts., c. 159, § 33, making an allowance to clerks of 
courts for extra clerical assistance. 

June 18, 1897. 
Charles R. Prescott, Esq., Controller of County Accounts. 

Dear Sir : — The clerk of courts for the county of Berkshire 
may, under Pub. Sts., c. 159, § 9, appoint an assistant clerk pro 
tern. ; but the same section expressly provides that the compensa- 
tion of such assistant shall be paid by the clerk. 

This express provision is not controlled by section 33 of the 
same chapter. The assistant so appointed does not come within 
the classification of extra clerical assistance, referred to in the 
latter section. The duties and authority of an assistant clerk are 
much more extensive than those of a person rendering extra cleri- 
cal assistance. He may perform all the duties of a clerk. Pub. 
Sts., c. 159, § 9. Unless the Legislature specially authorizes the 
payment of the salary of an assistant clerk, the clerk making the 
appointment must pay it himself. 
Yours very truly, 

Hosea M. Knowlton, Attorney -General. 



Massachusetts Benefit Life Association. — Policies illegally issued. — Ex- 
pense fund. — Right of action by the Commonwealth. 

Policies of insurance, issued to persons other than the original incorpora- 
tors, and those whom they voted to associate with them, by the Mas- 
sachusetts Benefit Life Association, a corporation organized under St. 
1874, c. 375, as amended by St. 1877, c. 204, the company having 
repealed the by-law making each policy holder a member thereof 
before it issued any policies, were issued illegally till the enactment of 
St. 1885, c. 183, which ratified what had been done by the company, 
and authorized the continuance of just such business. 

Policies first issued described the holders thereof as members. These 
were recalled and new policies substituted, describing the holders as 
" benefit members." There is no such thing in the law as a " benefit 
member " of a corporation, and they were not members ; yet it cannot 
be said that the legal rights of the policy holders were infringed by 
the change. 

All the policies issued by the company, after providing for the collection 
of an annual assessment for expenses, stipulated that the expense 
fund should be "at the sole disposal of the officers of the association ;" 
and, although the assessments were largely in excess of the expenses, 



1898.] PUBLIC DOCUMENT — No. 12. 63 

yet the levying of them cannot in law be said to be an infringement of 
the rights of the policy holders. 
The statutes of the Commonwealth provide for the making of annual 
returns by the company to the Insurance Commissioner. Since the 
business of the company was legalized by St. 1885, c. 183, the Com- 
monwealth has no right of action against the company unless its annual 
returns were untrue ; if untrue, the remedy is by indictment. 

June 29, 1897. 
To His Excellency Roger VVolcott, Governor. 

Dear Sir : — Your letter of April 30, 1897, requests the opinion 
of the Attorney-General upon two questions, to wit : — 

First. — Whether the rights of the policy holders in the Massa- 
chusetts Benefit Life Association have been improperly infringed 
upon ; and 

Second. — If so, whether any remedy exists for such condition of 
affairs under our law. 

In view of the fact that the report of the commission referred to 
in your letter was not the final report of that body, I have delayed 
replying in order that I might have the benefit of all the facts 
stated in its final report. 

The company was organized Feb. 8, 1878, under the provi- 
sions of St. 1874, c. 375, as amended by St. 1877, c. 204. The 
former statute is entitled "An act concerning associations for 
charitable, educational and other purposes," and is substantially 
re-enacted in Pub. Sts., c. 115, §§ 1-10. This statute authorizes 
seven or more persons to form a corporation for various educa- 
tional, benevolent and religious purposes. It contained no refer- 
ence to the business of insurance of any kind. St. 1877, c. 204, 
provided that associations organized under St. 1874 might, " for 
the purpose of assisting the widows, orphans or other dependents 
of deceased members, provide in their by-laws for the payment by 
each member of a fixed sum, to be held by the association until the 
death of a member occurs, then to be forthwith paid to the person 
or persons entitled thereto." It was further provided that the pro- 
visions of the general insurance laws should not be applicable to 
such beneficiary corporations. The company in question derived 
its authority from the statute above quoted. Its purpose, as stated 
in its articles of association, was to " assist the widows, orphans, 
or other dependents of deceased members by providing for the 
payment by each member of a fixed sum to be held until the death 
of a member, then to be paid to the person or persons entitled 
thereto." 

The association began to issue policies to other than members of 
the corporation in October, 1879. All the policies so issued, from 



64 ATTORNEY-GENERAL'S REPORT. [Jan. 

that time till the enactment of St. 1885, c. 183, relating to insur- 
ance upon the assessment plan, were illegal. Only seven persons 
were named in the articles of association as members of the cor- 
poration. The original by-laws submitted to the Commissioner of 
Corporations provided that each policy holder should be a member 
of the corporation. This by-law, however, was repealed before 
any policies were issued, and there never were any other members 
of the corporation (until the change in the by-laws procured by the 
special commission appointed by the policy holders in 1896) ex- 
cepting the seven original incorporators, and those whom they 
voted to associate with them. 

Membership in a corporation is confined to the persons named 
in the charter, and those whom they associate with themselves 
under the by-laws or by their votes. Mutual fire and life insur- 
ance companies are by statute made an exception to this general 
rule. In those companies, under the provisions of the statutes, 
every policy holder thereby becomes a member, and is entitled to 
receive notice of meetings of the corporation. There was no such 
law applicable to associations of this kind ; and by the repeal of 
the by-law above referred to the membership was limited and re- 
mained limited to the original incorporators and their associates. 

The repeal of this by-law, by virtue of which incorporation was 
obtained, constituted the first infringement, not only upon the 
rights of the policy holders, but upon the laws of the Common- 
wealth. When that by-law was repealed the association had no 
authority to issue policies excepting to the seven incorporators. 
The pretext devised of calling policy holders " benefit members " 
did not avail to cure the mischief. There is no such thing known 
to the laws of Massachusetts as a " benefit member." It is a mis- 
leading term. Its only possible effect is to deceive the policy 
holder, on the one hand, into the supposition that in some way he 
is a member of the corporation ; or, on the other hand, to evade 
the laws of the Commonwealth providing that policies of insurance 
in associations of this character should be issued only to members 
of the association. 

The business of the association in issuing policies to " benefit 
members" could, and undoubtedly would, have been enjoined by 
the Commonwealth, but for the fact that the by-laws submitted to 
the Commissioner of Corporations had provided otherwise, and no 
notice of any change such as was made was given. 

Notwithstanding the repeal of this by-law, the first twelve 
hundred policies issued described the holders as members of the 
corporation. Such description did not constitute them members, 
and the association must have known that it did not, for they had 



1898.] PUBLIC DOCUMENT — No. 12. 65 

repealed the by-law which would make that statement effectual. 
Here again the rights of the policy holders were infringed upon, 
for a representation was made to them in their policies which was 
not true, and which must have been known to the association not 
to be true. 

Fearing that trouble might come from this description of policy 
holders as members, it was determined by the association that the 
policies should be recalled. Advantage was taken of the fact that 
it became expedient to change the policies in another respect, to 
wit : in relation to the payment of the amount secured by the 
policy in case of the death of the beneficiary, by the substitution 
of the word "heirs" instead of the word "representatives." 
Having secured an opinion of the Insurance Commissioner that 
this change was advisable, the association issued a circular to the 
policy holders, calling attention to the letter of the commissioner, 
and asking them to return their policies, to have them changed to 
conform to the suggestions made by the Insurance Commissioner. 

This invitation was accepted, and, relying upon the recom- 
mendation of the Insurance Commissioner, all the original policies 
were returned to the association to be changed. New policies 
were thereupon issued, making the change for which the return 
had been asked. At the same time the inaccurate description of the 
policy holders as members was also changed, and in the new poli- 
cies they were described as " benefit members," — an expression 
having no useful purpose except so far as it was misleading. 
Nothing was said in the circular inviting the return of the policies 
about this change, and it is probable that few of the policy holders 
knew that such a change was to be made. 

In my view of the law of membership in corporations, as above 
stated, this change did not constitute in law an infringement upon 
the rights of the policy holders, for they never had any rights of 
membership. But to ask the return of the policies for the purpose 
of making a specified change in them, intending at the same time 
to make another change which was not disclosed in the invitation, 
was a breach of good faith to the policy holders, especially in view 
of the fact that the official sanction of the Insurance Commissioner 
was obtained to procure the return of the policies. 

The policies first issued, as well as all that have been subse- 
quently issued, provided in express terms for the collection of an 
annual assessment for expenses ; and it was stipulated in the 
policy that the proceeds of these assessments should be at the sole 
disposal of the officers of the association. Inasmuch as the 
officers were practically the members and owners of the corpora- 
tion, this was an indirect way of notifying the policy holders that 



66 ATTORNEY-GENERAL'S REPORT. [Jan. 

the proceeds of this assessment belonged to the corporation, and 
that they as " benefit members " had no right thereto. The collec- 
tion of this annual assessment for expenses has continued from 
the beginning down to the present time, and under it large sums 
have been received from the policy holders ; much larger, I am in- 
formed, than the actual and legitimate expenses of conducting the 
association, the excess above such expenses having been divided 
from time to time among the members of the association. 

It cannot be said, however, that this assessment was in law an 
infringement of the rights of the policy holders. They may have 
been, and undoubtedly were, in most instances misled by the 
indirect language used in their contracts. They were described as 
" benefit members," and were not told that the expression meant 
nothing, excepting that they were not members ; and they were 
also led to believe that the assessment was for actual expenses, 
and not for the profit of the real members. Yet if they had taken 
the trouble, which most people do not take, to read their policies, 
they would have learned that it was therein provided that the ex- 
pense fund "is at the sole disposal of the officers of the associa- 
tion." This was in their contracts, and, however misled they 
may have been by the fact that the corporation assumed to be a 
" fraternal benefit association," organized under the law authoriz- 
ing the forming of corporations for "charitable" purposes, and 
by the statement that they were " benefit members," they could 
nevertheless, easily have learned that the assessments for expenses 
which they agreed to pay might be used by the members of the 
association for their own profit, if any remained after paying the 
expenses. 

Moreover, they were so told, so far as the Commonwealth could 
tell them. Insurance Commissioner John K. Tarbox took occa- 
sion from time to time to inform the Legislature in his annual re- 
ports of the true character of this and other like associations. In 
his report for 1884, speaking of such associations, he said: 
" Others are simply close corporations, with a very limited 
membership, and organized and carried on for profit by a few 
stockholders or individuals who constitute the corporation. The 
insured pay to the corporation certain fees and dues, which pro- 
duce the expense fund, and whatever is left of it after the pay- 
ment of expenses is divided between the corporators as profits 
... I find no warrant in the law for corporations of this sort. 
The statute authorizes the forming of associations for the purpose 
of rendering assistance to its members and their dependents. It 
does not authorize corporations to make contracts of assessment 
insurance with persons other than members, and the persons in- 



1898.] PUBLIC DOCUMENT — No. 12. 67 

sured by the corporations referred to are not members, in the 
sense of the statute." Undoubtedly, if Mr. Tarbox had had the 
statutory power to do so, he would have instructed the Attorney- 
General to cause such corporations conducting illegal business to 
be enjoined and dissolved. He had no such authority, however, 
and could only report the situation to the Legislature, which he 
did in unmistakeable terms. 

Instead, however, of providing for the wiping out of such 
unlawful associations, the Legislature proceeded to enact, in 1885 
(St. 1885, c. 183), a statute which not only authorized the forma- 
tion of corporations to carry on the very business which the com- 
missioner had condemned, but which even went further, and in 
section 3 provided that any corporation engaged in the transaction 
of life or casualty insurance on the assessment plan might " con- 
tinue to exercise all the rights, powers and privileges" conferred 
by that chapter. 

So, therefore, what had been illegal was thus ratified and made 
valid by this act. The practices condemned by the commissioner 
were authorized to continue and increase by the Legislature. It 
was the very condition of things which now is most vehemently 
complained of against this association, to wit: the association of 
a limited number of persons as an insurance corporation, without 
capital, without responsibility, without effectual supervision, with- 
out any laws restraining them as to the character of their contracts, 
without even a guarantee of permanency, and authorized to con- 
tract with the insured for the payment of money under the guise 
of expenses which they might divide among themselves as profits. 
If this is bad business, as it now seems to be, no more blame can 
be attached to the members of this corporation than to the Com- 
monwealth which permitted it. 

Subsequent statutes went even further. By St. 1890, c. 421, 
§ 20, it is provided that expenses incurred in investigating and 
contesting cases believed to be fraudulent may be considered as a 
part of the mortuary expenses ; in other words, that all such 
expenses could be deducted from the amount of the assessment 
collected for the payment of death and disability benefits. The 
direct result of this provision is to saddle a portion of the expenses 
of these companies upon the mortuary assessments, thus reducing 
the amount to be paid from the proceeds of assessments for 
expenses, and thereby increasing the profits to be divided out of 
such assessments for expenses. The Massachusetts Benefit Life 
Association took advantage of this provision, and, although ex- 
penses for contesting disputed claims were first paid out of the 
expense fund, transfers to cover such expenses were made from 



68 ATTORNEY-GENERAL'S REPORT. [Jan. 

time to time from the amount held for the purpose of paying death 
benefits. 

The facts may be thus summarized. Under the form and guise 
of an association for charitable and benevolent purposes, seven 
persons formed a corporation for the purpose of carrying on busi- 
ness for profit. They obtained a charter under by-laws which 
they proceeded forthwith to change in a way which, if known, 
would have prevented them from obtaining a charter. They invited 
the co-operation of the public in this so-called charitable enterprise, 
first by describing the policy holders as members, which was un- 
true, and afterwards as " benefit members," which was misleading. 
Despite the protestations of the Insurance Commissioner they con- 
tinued to carry on this business until it was legalized by the Legis- 
lature in 1885. It is impossible to believe that the policy holders 
knew how profitable the business was in the corporation ; and it 
is entirely probable that the members of the corporation under- 
stood the ignorance of their policy holders, and took no pains to 
inform them. And when, subsequently, the burden of assessments 
was likely to increase, instead of reducing their profits, they took 
advantage of a permissive statute to draw upon the fund available 
for death benefits in a way which still further enlarged their profits. 

Thus far I have considered your Excellency's first question, as 
to how far the rights of the policy holders had been infringed 
upon. It remains as to this portion of the history of the company 
to consider the question whether the laws afford any remedy. For 
the reasons I have heretofore stated there appears to be no remedy 
to recover for the benefit of the policy holders the sums so col- 
lected and distributed among the members of the corporation as 
profits. The illegality of the business of the company prior to 
1885 seems to have been ratified and legalized by the Legislature. 
Whether any remedy exists for the old policy holders, of whom I 
am informed there are some remaining, it is unnecessary to con- 
sider, as that is a matter exclusively for the policy holders them- 
selves, and in respect to which the Commonwealth has neither 
duties nor rights. The Commonwealth has never undertaken to 
settle matters of private difference arising upon the contracts of 
its corporations. 

I have recently been informed by the present officers of the cor- 
poration that upon investigation they learn that "there is due a 
large accumulation of unpaid death claims pending against the 
association, these claims being over and above the current death 
claims which are to be met out of the proceeds of current assess- 
ments ; " and that this accumulation has been going on since 
1890. They further state that the purpose of the former man- 



1898.] PUBLIC DOCUMENT — No. 12. 69 

agenient in thus postponing the payment of this large accumulation 
of death claims must have been to keep clown assessments, regard- 
less of future consequences ; and that, if assessments in the past 
had been made at the proper time large enough to meet such 
claims, the situation would now be much more encouraging. 

I am informed that this situation has been made known to the 
Insurance Commissioner for his consideration, and that the asso- 
ciation has voted an assessment upon the policy holders large 
enough to meet this deficit, and has submitted the same to the 
Insurance Commissioner for his approval. With his duties in 
the matter the present opinion is not concerned. 

If this method of conducting the business of the association 
has obtained, it has been a serious infringement upon the rights 
of the policy holders. They had the right to suppose that the 
assessments being levied from time to time were sufficient to meet 
death claims, and to make their arrangements accordingly. It 
was unjust to the beneficiaries to withhold payment of their claims, 
for under the statutes such claims are absolutely due at the time 
expressed in the policies ; and it was unfair to the policy holders 
to postpone the levying of assessments, the result being to neces- 
sitate inordinate assessments in the future. 

If this course of business was pursued, it was in plain violation 
of law. It was the duty of the corporation to keep the assess- 
ments up to a parity with the accumulation of death claims. 
Moreover, St. 1890, c. 421, § 15, provides that the officers of a 
corporation who shall refuse or neglect to levy an assessment for 
a space of sixty days after the filing of satisfactory proof of the 
death of a certificate or policy holder, where the same so received 
is not disputed on account of fraud or want of validity, and where 
the death or emergency fund is not sufficient to pay the claim, 
shall thereby become liable to the beneficiary under said certificate 
or policy to the amount of the claim. This remedy is solely in the 
hands of the beneficiary, and cannot be enforced for him by the 
Commonwealth. 

It is further made the duty of the Insurance Commissioner, by 
section 10 of the same chapter, when he is satisfied that the cor- 
poration has refused or failed to pay a death claim for thirty days 
after it becomes due and after proper demand, to notify the cor- 
poration to suspend business until the claim is paid, and to proceed 
forthwith to make such an examination of the affairs of the cor- 
poration as will satisfy him whether it is able to pay its accrued 
indebtedness in full. 

Since 1885 the Insurance Commissioner has been vested with 
powers of visitation and examination into the affairs of these cor- 



70 ATTORNEY-GENERAL'S REPORT. [Jan. 

porations. St. 188"), c. 183, § 13, provided that the commissioner 
in person or by his deputy should have " the powers of visitation 
of and examination into the affairs of any such corporation [assess- 
ment insurance company] which are conferred upon him in the 
case of life insurance companies by chapter 119 of the Public 
Statutes." That chapter makes it the duty of the commissioner to 
visit each domestic company at least once in three years, and 
whenever he deems it necessary for the protection of the policy 
holders, and thoroughly to inspect and examine all its affairs, and 
especially its financial condition and ability to fulfil its obligations, 
and to ascertain whether it has complied with all provisions of law 
applicable to it and to its transactions. This statute remained in 
force until St. 1890, c. 421, in which it is provided (section 22) that 
" The insurance commissioner may personally or by his deputy or 
chief clerk visit each domestic insurance corporation doing business 
on the assessment plan whenever he shall deem it necessary, and 
thoroughly inspect and examine its affairs, especially as to its 
financial condition and ability to fulfil its obligations, and whether 
it has complied with the laws." Under both statutes he was fur- 
ther authorized, whenever upon investigation he became satisfied 
that any such corporation had exceeded its powers or failed to 
comply with any provision of law, to report the fact to the Attor- 
ney-General for the purpose of having the corporation restrained 
from the further prosecution of its business. Whether the exercise 
of these powers by the Insurance Commissioner would have 
enabled him to learn the condition of the company which the pres- 
ent officers now report, I have no means of knowing. If they were 
insufficient, then the remedy is by additional legislation which will 
enable the officers of the Commonwealth to know what is going on 
in corporations carrying on business under the shield of its pro- 
tection. 

The statute further provides (St. 1890, c. 421, § 22) that the 
officers of the corporation shall annually return to the Insurance 
Commissioner, in such manner and form, and including such 
information as he may require, a sworn statement of the 
affairs of the year ending on the preceding thirty-first day of 
December. Returns were made by this association to the Insur- 
ance Commissioner, as required by law. Whether these returns 
truly stated the accumulation of unpaid death claims, which are 
now reported to me by the officers of the association, I have no 
reason of knowing. If not, the remedy is by iudictment. 
Yours very truly, 

Hosea M. Knowlton, Attorney -General. 



1898.] PUBLIC DOCUMENT— No. 12. 71 



Feathers of certain birds for dress or ornament. — St. 1897, c. 524. 

St. 1897, c. 524, does not prohibit the having in possession or the wearing 
of the body or feathers of birds taken or killed without the Common- 
wealth. 

Aug. 10, 1897. 

Rufus R. Wade, Esq., Chief of the District Police. 

Dear Sir: — Your letter of the 9th inst. requires my opinion 
upon the question whether, under the provisions of St. 1897, 
c. 524, it is unlawful for a person in Massachusetts to have in 
his possession the body or feathers of any bird whose taking or 
killing is prohibited by St. 1886, c. 276, § 4, provided the bird 
itself was taken or killed outside the Commonwealth of Massa- 
chusetts. 

The words of the statute, as far as they effect this question, are 
as follows : " Whoever has in his possession the body or feathers 
of any bird whose taking or killing is prohibited by section 4 of 
chapter 276 of the Acts of the year 1886, or wears such feathers 
for the purpose of dress or ornament, shall be punished as pro- 
vided in said section " St. 1886, c. 276, § 4, to which this 
statute refers, provides that "Whoever takes or kills any wild 
or undomesticated [with certain exceptions] shall be punished by 
a fine of ten dollars." Taken together, these statutes prohibit 
the killing of certain birds, and the possession of the bodies or 
feathers of the birds whose taking is so prohibited. 

Penal statutes are to be construed strictly, and their scope is 
not to be enlarged. The statutes in question in terms prohibit 
the possession of the bodies and feathers, only, of birds whose 
killing is prohibited. There is, and obviously could be, no pro- 
hibition against killing birds without the limits of the Common- 
wealth. It follows, under a strict construction of the statutes, 
that the possession of the bodies and feathers of such birds, whose 
killing is not prohibited, is, itself, not prohibited. 

There is nothing in the legislative purpose, so far as it can be 
gathered from the act, which necessarily requires a broader con- 
struction. The earlier statute is aimed against the killing of birds 
in this Commonwealth. The later statute is further intended to 
discourage such killing by destroying the market for bodies and 
feathers of birds unlawfully killed. This purpose is fully accom- 
plished, without the necessity of supposing that the Legislature 
intended to include birds killed elsewhere. The fact that the 
narrower construction makes the law more difficult of enforcement 
does not concern the question. 

St. 1879, chap. 209, § 1, was a penal statute of similar charac- 
ter. It provided that whoever in this Commonwealth takes or 



72 ATTORNEY-GENERAL'S REPORT. [Jan. 

kills any woodcock, or other specified birds, during certain por- 
tions of the year, " or within the respective times aforesaid sells, 
buys, or has in his possession, or offers for sale, any of said birds, 
shall be punished," etc. 

This statute was construed in Com. v. Hall, 128 Mass. 410, as 
a prohibition against having possession of the birds named in the 
statute only when killed in this Commonwealth. It was claimed 
in that case by the Attorney-General that the intention of the 
statute was to prohibit the buying, selling or having in possession 
such birds which had been lawfully killed in another State. This 
construction was not sustained. Gray, C. J., in the opinion said 
that " To adopt such a conclusion, when not imperatively required 
by the language of the act, would be inconsistent with the ordinary 
rules of construction of penal statutes." The doctrine of that case 
applies to the statute in question. 

It is interesting to observe that after this decision the statute 
quoted was amended by the addition of the words '* whether taken 
within this Commonwealth or elsewhere." The absence of these 
words in the statute of 1897 is significant, and leads to the conclu- 
sion that it was not the intention of the Legislature to prohibit the 
having in possession or the wearing of the body or feathers of 
birds which were not killed in violation of the laws of this Com- 
monwealth. 

I am of opinion, therefore, that St. 1897, c. 524, is not to be 
construed as prohibiting the having in possession, or the wearing 
of the body or feathers of birds taken or killed without the Com- 
monwealth. 

Yours very truly, 

Hosea M. Knowlton, Attorney-General. 



Boston Terminal Company. — Harbor and Land Commissioners. — Li- 
cense.— St. 1896, c. 516. —Pub. Sts., c. 19. 

The St. 1896, c. 516, authorizes the Boston Terminal Company to take 
land in fee within certain limits aud to do whatever is necessary for 
the building of a union station within the limits of the lands taken by 
it for that purpose, whether above or below high-water mark. 

The sanction of the Board of Harbor and Land Commissioners is required, 
under the provisions of Pub. Sts., c. 19, § 8, — not under § 9. Pub. 
Sts., c. 19, § 16, does not apply to the work of the Boston Terminal 
Company. 

Aug. 30, 1897. 
Hon. Woodward Emekt, Chairman. 

Dear Sir : — Your letter of June 25 submits a series of ques- 
tions relating to the Boston Terminal Company, which can best be 



1898.] PUBLIC DOCUMENT — No. 12. 73 

answered by a consideration of the general policy of the Legislat- 
ure in regard to that company, and the relation which its act of 
incorporation bears to pre-existing statutes. 

The Boston Terminal Company was incorporated by St. 1896, 
c. 516. It is authorized by that act to take land in Boston with- 
in certain limits, including lands over which the tide ebbs and 
flows, and to build a passenger station thereon. In pursuance of 
the authority conveyed by this act, it has taken a tract which in- 
cludes land over which the tide ebbs and flows, and has applied 
to your Board for its approval of the plans which have been formed 
for filling solid the tide-water lands taken. 

The lands taken by the Terminal Company under the authority 
of its charter were, before the passage of St. 1896, c. 516, sub- 
ject to the public rights of navigation. That statute is, therefore, 
a grant of power to take for one public use land already appropri- 
ated to another public use. This form of legislation has been 
frequent in this Commonwealth, and is clearly within the powers 
of the Legislature. Springfield v. Connecticut River R.R. Co., 
4 Cush. 63; Commissioners v. Holyoke Water Power Co., 104 
Mass. 446 ; Commonwealth v. O. C. & F. R.R., 14 Gray, 93. 

The charter of the company, therefore, gives it the right to take 
in fee lands covered by tide water, even though belonging to the 
Commonwealth, and to occupy the same for the purposes of its 
act. It does not follow, however, that this grant is so far abso- 
lute as to give the company the right to ignore the general 
provisions of the Public Statutes relating to the filling or improve- 
ment of lands upon which tide waters ebb and flow. These 
provisions are contained in Pub. Sts., c. 19. Section 8 of chapter 
19 provides that "All persons that are or may be authorized by 
the General Court to build over tide waters a bridge, wharf, pier, 
or dam, or to fill flats, or drive piles below high-water mark " shall 
before beginning work give written notice to the Board of Harbor 
and Land Commissioners of the work they intend to do, and shall 
submit plans of any proposed structure, and of flats to be filled, 
and of the mode in which the work is to be performed, for the 
approval of the Board. Jurisdiction is given to the Board to alter 
such plans in their discretion and to prescribe " to any extent that 
does not diminish or control the legislative grant" the direction, 
limits and mode of building the wharves and others structures. 
Section 9 provides for the issuing of a license by the Board to any 
person to build a structure in tide water, or to fill land or flats, 
or to drive piles in or over tide water below high- water mark, upon 
such terms as may be approved by the Board. 



74 ATTORNEY-GENERAL'S REPORT. [Jan. 

I am of opinion that section 8, a portion of which I have quoted, 
is applicable to the present case, and that it was not intended by 
the Legislature that the supervision of the work of filling, occupy- 
ing or improving tide-water lands by the Boston Terminal Com- 
pany, given by this section to your Board, should be taken away. 
The section is general in its terms, and applies to all work done 
below high-water mark, authorized by legislative grant. The 
obvious intention of the section was to confer upon your Board 
the jurisdiction so far to supervise and control the performance 
of the work for which legislative grant had been made as to pre- 
vent damage to tide waters outside of the limits of the grant, and 
to insure the efficiency of navigable waters and public water ways. 

I am aware that in the case of Attorney-General v. Cambridge, 
119 Mass. 518, it was held that the defendant city, which had been 
authorized by St. 1866, c. 149, § 5, to fill a portion of Miller's 
River, was not required to submit its plans for the approval of 
the Board of Harbor Commissioners. The decision was based 
upon two propositions : first, that the work required by the stat- 
ute was to be done not by private individuals for their own bene- 
fit, but under the direction of the boards of mayor and aldermen of 
two cities for the abatement of a nuisance ; and, second, that the 
work contemplated was but the carrying out of a plan which had 
been devised by the Board of Harbor Commissioners, acting 
jointly with the State Board of Health. It is doubtful if the 
first ground would warrant the decision arrived at by the court. 
However that may be, the second ground stated clearly distin- 
guishes it from the present case. 

Your Board have not the power in any way " to diminish or con- 
trol the legislative grant," but within that limit have the right to 
pass upon the plans submitted, and to require plans of the work 
to be done, whether of filling, driving piles or building structures, 
to be submitted to your Board for its .approval. 

St. 1896, c. 516, does not, it is true, in terms authorize the 
driving of piles, the filling of flats or the building of a bridge, 
wharf, pier or dam, these being the classes of work for which the 
approval of your Board is required. This is not, however, in my 
opinion, of importance, for the act authorizes the building of a 
union station, and therefore is authority for the doing of whatever 
work is necessary to the building of such a station, including any 
or all of the classes of work specified in section 8, for the doing of 
which plans are required to be submitted to your Board. 

Pub. Sts., c. 19, § 16, does not apply to the present case. That 
section provides that " When an authority or license is granted by 



1898.] PUBLIC DOCUMENT - No. 12. 75 

the General Court or by said board to any person or corporation to 
build a wharf or other structure upon, or to fill or otherwise occupy 
land in tide water, where the title to such land is in the Common- 
wealth, such person or corporation shall," etc. The section obvi- 
ously refers to those cases where license is granted either by the 
Legislature or your Board to occupy lands of the Commonwealth 
below tide water, the fee remaining in the Commonwealth. The 
charter of the Boston Terminal Company, on the other hand, 
authorizes the taking of land in fee, including lands of the Com- 
monwealth below tide water ; and the company should be restrained 
from occupying any flats or deep-water lands that it has not first 
taken in fee, in accordance with the provisions of its act. 

The foregoing considerations answer the various questions con- 
tained in your letter. For the sake of clearness, however, I reply 
to them specifically, as follows, to wit : — 

1. Assuming that filling in tide water under the rights con- 
ferred by c. 516, St. 1896, required approval under Pub. Sts., c. 
19, should the license be framed under section 9, and has section 
16 any application? 

The license should be framed under section 8. 

2. Does c. 516, Sts. 1896, authorize the Boston Terminal Com- 
pany to build over tide waters a bridge, wharf, pier or dam, or to 
fill flats or drive piles below high-water mark ? 

The statute authorizes the Boston Terminal Company to do 
whatever is necessary for the building of a union station within 
the limits of the lands taken by it for that purpose, whether above 
or below high-water mark. 

3. If it does, is it authorized so to do without the sanction 
provided in Pub. Sts., c. 19? 

4. If the sanction of the Board of Harbor and Land Commis- 
sioners is required before the Boston Terminal Company can fill in 
tide waters, should it be granted under the provisions of Pub. Sts., 
§ 8, or § 9 ? 

The sanction of the Board of Harbor and Land Commissioners 
is required under the provisions of section 8, but not under the 
provisions of section 9. 

5. Is the authority granted by c. 516, Sts. 1896, subject to the 
requirements of Pub. Sts., c. 19, § 16? 

This section does not apply to the work of the Boston Terminal 
Company. 

Very truly yours, 

Hosea M. Knowlton, Attorney- General. 



76 ATTORNEY-GENERAL'S REPORT. [Jan, 



Public Records. — Custodian. — Repair. — Expense. 

St. 1897, c. 439, § 6, requires every person having the custody of the public 
records of a county, city or town, to keep them in repair, and such 
county, city or town must bear the expense, whether it has appro- 
priated monej^ for that purpose or not. 

Sept. 21, 1897. 
Robert T. Swan, Esq., Commissioner of Public Records. 

Dear Sir: — I have your letter of the 7th, inquiring whether, 
under St. 1897, c. 439, § 6, any person having the custody of 
any public records can lawfully incur expense which a county, 
city or town will be obliged to pay, unless an appropriation for 
the purpose has previously been made by the county, city or town. 

The statute in question provides that " Every person having the 
custody of any public records of a county, city or town, consisting of 
written or printed books, shall, at the expense of the county, city 
or town, have all such books properly and substantially bound," 
etc. This statute makes the duty of the custodian imperative, 
whether an appropriation is made by the county, city or town, or 
not, and even if no such appropriation be made. He must obey 
the law. Failure to perform this duty by him is punishable under 
the provisions of section 12 of the same act. 

The liability of the count)', city or town for the expense so in- 
curred does not arise from any act of the corporation itself, but 
exists by virtue of the statute provision. It is plainly the duty 
of the county, city or town to appropriate money for the purpose 
specified in the act ; but if it fails to perform its duty it does not 
thereby escape its liability therefor. 
Yours truly, 

Hose a M. Knowlton, Attorney -General. 



Steam boilers. — Licenses. — Classes of licenses. — 

St. 1896, c. 546, § 1, making it unlawful for any person to have charge of 

or operate a steam boiler or engine without a license, does not require 

men employed merely as coal shovellers to be licensed. 
Examiners of engineers have authority to issue firemen's licenses for such 

class of boilers as they find the applicant qualified to take charge of or 

operate. 

Sept. 29, 1897. 

Rufus R. Wade, Esq., Chief Massachusetts District Police. 

Dear Sir : — Your letter of August 12 requires my opinion upon 
a number of questions touching the interpretation of St. 1895, 
c. 471, and St. 1896, c. 546. 



1898.] PUBLIC DOCUMENT — No. 12. 77 

1. In a large boiler plant, where many men are employed as 
firemen, simply putting coal under the boilers, with a fireman in 
charge to take care of the water for the boilers, whether these men 
are required to have licenses under the statutes. 

St. 1896, c. 546, § 1, makes it unlawful for any person "to 
have charge of, or to operate a steam boiler or engine " (with certain 
exceptions) unless he holds a license therefor, as provided in said 
chapter. The statute is intended for the security of the public, 
and those employed or having business in the vicinity of steam 
boilers, by providing that those who have charge of such boilers 
shall possess the skill necessary for their safe operation. The 
word " operate," as used in the statute quoted, is to be taken as 
meaning the directing or superintending of the working of the 
boiler. It does not apply to mere laborers, who have no responsi- 
bility or authority in the matter. Men who are employed as coal 
shovellers cannot be said to be in charge of or to be operating a 
boiler. They are not required to be licensed. 

The foregoing considerations make it unnecessary to reply to 
the second and third questions in your letter. 

4. Have the examiners the authority to issue firemen's licenses 
for low-pressure boilers only, marked, " Good only for low-pres- 
sure heating boilers ? " 

St. 1895, c. 471, § 2, provides that "Any person desiring to 
act as engineer or fireman shall make application to so act to an 
examiner of engineers . . . and if upon examination the applicant 
is found trustworthy and competent a license shall be granted to 
said applicant to have charge of or to operate such steam plants as 
the examiner may find him qualified to have in keeping." Section 
3 of the same act provides for three classes of engineers' licenses, 
and further provides that U A fireman's license shall be issued to 
any person who, after having passed an examination, as hereinafter 
provided, shall have been found competent to take charge of or to 
operate any steam boiler or boilers." If in the provision last 
quoted " any steam boiler or boilers" is equivalent to all boilers, 
then these provisions are inconsistent with the provisions of sec- 
tion 2, which authorizes the granting of a license to a fireman 
"to operate such steam plants as the examiner may find him 
qualified to have in keeping." This being so, I am of opinion 
that the expression " any steam boiler or boilers" is not to be 
taken as meaning all steam boilers, but rather " any steam boiler 
or boilers " which the examiners find the applicant competent to 
operate. Under this construction of the statute it follows that the 
examiners have authority to issue a fireman's license for such class 
of boilers as they find the applicant qualified to have charge of ; 



78 ATTORNEY-GENERAL'S REPORT. [Jan. 

and if they find him qualified to have charge of low-pressure heat- 
ing boilers, they may issue a license accordingly. There is nothing 
in the provisions of St. 1896, c. 546, inconsistent with this 
interpretation. 

Yours very truly, 

Hosea M. Knowlton, Attorney-General. 



The Massachusetts Highway Commission has no power to impose penal- 
ties for the infringement of its rules. 

Sept. 29, 1897. 
A. B Fletcher, Esq., Secretary, Massachusetts Highway Commission. 

Dear Sir: — Authority is given to the Massachusetts Highway 
Commission, by St. 1892, c. 338, § 3, to establish rules for the 
conduct of its business. The question submitted by your letter of 
September 20 is, whether the commission has the right to impose 
penalties for the infringement of said rules. 

Your commission has no power to impose penalties. That can 
only be done under direct and explicit authority from the Legis- 
lature. 

Yours very truly, 

Hosea M. Knowlton, Attorney -General. 



The Massachusetts Hospital for Dipsomaniacs and Inebriates has au- 
thority, under St. 1897, c. 474, "to finally discharge" a patient who 
is absent from the hospital, as well as one who is present. 

Oct. 4, 1897. 
Warren F. Spalding, Esq., 

Secretary, Massachusetts Hospital for Dipsomaniacs and Inebriates. 
Dear Sir: — I have your letter of the 30th ult., asking my 
opinion upon the question whether the trustees have the authority, 
under the provisions of St. 1897, c. 474, " to finally discharge" a 
patient who is in fact absent from the hospital on a permit to be 
at liberty, issued in accordance with the provisions of St. 1889, 
c. 414, § 8, or who is absent by elopement. 

I see no reason why a final discharge may not be issued to a 
patient who has been committed or admitted to the hospital, and 
whose connection with such hospital has not been formally termi- 
nated, whether he is in fact at the hospital at the time of the final 
discharge or not. 

Yours very truly, 

Hosea M. Knowlton, Attorney- General. 



1898.] PUBLIC DOCUMENT — No. 12. 79 



Commissioners of Prisons. — Vacancy. — Parole. 

Pub. Sts., c. 219, § 1, provides that there shall be five Commissioners of 
Prisons ; but if for any reason a vacancy occurs, it is still a lawful 
Board, and has a right to parole a prisoner from the State Prison, 
under St. 1897, c. 206, § 1. 

Oct. 4, 1897. 

Herbert D. Ward, Esq., Commissioner of Prisons. 

Dear Sir : — Your letter of the 2d inst. requests my opinion 
upon the question whether the present Board has the right to 
parole a prisoner from the State Prison, under the provisions 
of St. 1897, c. 206, § 1, there being a vacancy in the Board. 

Under the provisions of St. 1894, c. 440, as amended by St. 
1895, c. 252, a prisoner in the State Prison could be paroled 
by the Commissioners of Prisons. Unanimous action by the 
Board was not in terms required, but it was necessary to have 
the approval of the Governor and Council thereto. 

The existing statute (St. 1897, c. 206, § 1) dispenses with 
the approval of the Governor and Council, and in place there- 
of requires that the parole be granted ' w by the unanimous vote of 
all the members of the Board." 

The Board at present consists of but four members. It is 
still, however, the Board of Prison Commissioners, and has all 
the rights, powers and duties of the Board of Prison Commis- 
sioners. It may, therefore, by a u unanimous vote of all the 
members of the Board " issue a parole to a prisoner in the 
State Prison. Pub. Sts., c. 219, § 1, provides, it is true, that 
there shall be five Commissioners of Prisons. This, however, is 
a directory provision merely ; and if for any reason the Board is 
composed of four, it is still a lawful Board of Prison Commission- 
ers. The act of all the present members of the Board is the 
unanimous act of the Board and of all its members, as required by 
the statute. 

Yours very truly, 

Hosea M. Knowlton, Attorney -General. 



Massachusetts Highway Commission. — Saugus River. —Bridge. 

The Sauuus River being navigable tide water, the Massachusetts Highway 

Commission has no authority to construct a bridge over it without 

special authority from the Legislature. 

Oct. 5, 1897. 

A. B. Fletcher, Esq., Secretary Massachusetts Highway Commission. 

Dear Sir: — Your letter of September 24 requires my opinion 

upon the following question : " Has the Highway Commission, 



80 ATTORNEY-GENERAL'S REPORT. [Jan. 

under the authority given it in general statute law, the right to 
construct a bridge across the Saugus River below the lower bridge 
already existing there, with or without permission from the Harbor 
and Land Commissioners, or is a special act of the Legislature 
necessary before the commission can build such bridge?" 

The Saugus River, being navigable tide water, is a public high- 
way, subject to the public right of navigation. This right is not 
to be taken away or diminished without clear legislative authority. 
A bridge may be built over tide water above an existing bridge by 
license from the Harbor Commissioners, under certain conditions ; 
but there is no general law specifically authorizing the construction 
of a bridge over navigable waters below the limit of existing 
encumbrances. 

The authority of your commission to lay out and construct pub- 
lic highways (St. 1894, c. 497), does not give your Board broader 
powers than those already delegated to county and municipal 
boards. It has been held that such boards are not authorized to 
lay out a way across a navigable river. Boston v. Brookline, 156 
Mass. 172, 175 ; Com. v. Coombs, 2 Mass. 488. In the latter 
case it was held that the general authority given to the court of 
general sessions to lay out highways does not extend to the laying 
out of a highway over a navigable river, so as to obstruct the same 
by a bridge ; and that a general authority to lay out a new high- 
way is not to be extended so as to give the power to obstruct an 
open highway already in the use of the public. Vicl. also Arundel 
v. McCullock, 10 Mass. 70 ; Kean v. Stetson, 5 Pick. 492. 

I am of opinion, therefore, that your commission has not the 
authority to construct the bridge in question without special 
authority from the Legislature. 
Yours very truly, 

Hosea M. Knowlton, Attorney -General. 



Street Railways. — State highways. — Construction. 

Municipal boards have the discretion of determining, under Pub. Sts., c. 
113, §§ 7, 21 and 22, whether public convenience requires the construc- 
tion of street railways in State highways; but under St. 1897, c. 355, 
their grants are subject to the veto of the Massachusetts Highway 
Commission. 

Oct. 5, 1897. 

A. B. Fletcher, Esq., Secretary, Massachusetts Highway Commission. 

Dear Sir : — In your letter of September 24 you require my 
opinion as to how far St. 1897, c. 355, amending St. 1894, c. 
497, § 2, affects the opinion heretofore given to the Board, dated 
Nov. 16, 1896. 



1898.] PUBLIC DOCUMENT — No. 12. 81 

In that communication, and for reasons therein set forth, I stated 
it to be my opinion that the statutes authorizing the construction 
of State highways did not operate to repeal the provisions of Pub. 
Sts., c. 113, §§ 7, 21 and 22. These sections delegated to munic- 
ipal boards the discretion of determining, after due notice and 
hearing, whether necessity and public convenience requires the 
construction of street railways in highways. I do not think this 
jurisdiction is affected by St. 1897, c. 355. 

In my former opinion, however, I suggested, without deciding, 
that it would probably be necessary to obtain not only a grant from 
the municipal board, but a permit from the Massachusetts High- 
way Commission, before constructing street railways in the State 
highways or altering tracks therein. The effect of St. 1897, c. 
355, is to remove all doubt upon that subject, and to require the 
approval of and a permit from your commission before construct- 
ing or altering a street railway in a State highway. The authority, 
powers and duties of municipal boards in respect to street railways 
remain unchanged, but their grants are subject to the veto of your 

Board. 

Yours very truly, 

Hosea M. Knowlton, Attorney-General. 



Insane paupers. — Transfer. — Regularity of commitment papers. 
The State Board of Lunacy and Charity has authority to transfer pauper 
inmates from any institution devoted to the care of insane persons to 
any other of like character. 
Under St. 1895, c. 286, superintendents or other officers of insane hos- 
pitals have no authority to pass upon the regularity of commitment 
papers which accompany the order of commitment issued by the 
court; that is a question for the courts alone. 

Oct. 15, 1897. 
Charles E. Woodbury, M.D., Inspector of Institutions. 

Dear Sir : — Your letter of the 4th inst. requires my opinion 
upon two questions, to wit : — 

First. — Has the Board (of Lunacy and Charity) authority to 
transfer insane paupers from the State Asylum for Insane Crimi- 
nals at Bridgewater to the Meclfield Insane Asylum? 

Among the powers originally given to the Board of State 
Charities, which was created by St. 1863, c. 240, was that of 
transferring pauper inmates " from one charitable institution or 
lunatic hospital to another." The Board of State Charities was 
superseded in 1879 (St. 1879, c. 291) by the Board of Health, 
Lunacy and Charity ; and in 1886, when the State Board of Health 
was re-established, the name of the Board was changed, and was 



82 ATTORNEY-GENERAL'S REPORT. [Jan. 

thereafterwards denominated the State Board of Lunacy and 
Charity. But the right of transfer of pauper inmates of charitable 
institutions and lunatic hospitals has been continued in the same 
terms until the present time. 

At the time of the original enactment (St. 1863, c. 240) there 
were but three receptacles provided by the State for the reception 
of insane persons, all of which were called lunatic hospitals. The 
term ' k lunatic hospital," therefore, as originally used was intended 
to cover all receptacles for the insane under the State's charge. 
It was undoubtedly the intention of the Legislature, in creating 
the Board of State Charities, to give full authority to the Board 
to classify, divide and separate paupers, whether insane or not, 
under the control of the State, wherever they were kept or main- 
tained. Since the first use of the words "lunatic hospital" in 
connection with the right conferred upon the Board as to transfer 
of paupers, other institutions for the reception of insane persons 
have been created, some of which are not called lunatic hospitals, 
to wit, the Worcester Insane Asylum, the Medfield Insane Asy- 
lum and the State Asylum for Insane Criminals. But all of these 
are institutions established for the care and maintenance of insane 
persons ; and I am unable to discover any essential distinction, so 
far as this question is concerned, between those State institutions 
which are called lunatic hospitals and those which are called 
insane hospitals, insane asylums and asylums for insane criminals. 
All of them are charitable institutions, and are alike under the 
supervision of the State Board. 

I am of opinion, therefore, that the provisions of Pub. Sts., c. 
79, § 9, authorizing the transfer of pauper inmates by the State 
Board from one charitable institution or lunatic hospital to another, 
are intended to be general in their nature, applicable to all the in- 
stitutions under the State Board, and to authorize the transfer of 
pauper inmates from any institution devoted to the care of insane 
persons to another of like character. 

The foregoing considerations dispose of the question submitted, 
unless there is something in the statutes specially relating to the 
Medfield Insane Asylum or to the State Asylum for Insane Crim- 
inals, which limits this general authority. The charter of the 
Medfield Insane Asylum (St. 1892, c. 425, § 4) provides that 
" all the laws relative to State lunatic hospitals, and to persons 
committed thereto on the ground of insanity, so far as they may 
be applicable, shall apply to said asylum and to the persons com- 
mitted thereto : provided, that no patient shall be admitted to said 
asylum except as transferred thereto by the State Board of Lunacy 
and Charity from one of the State lunatic hospitals or the Worcester 



1898.] PUBLIC DOCUMENT — No. 12. 83 

Insane Asylum." These provisions clearly put the Medfield Insane 
Asylum into the class of existing lunatic hospitals, excepting that 
it is not intended as a place of original commitment, but only of 
transfer from other institutions. The provision in relation to such 
transfer was not intended to be a limitation of the powers of trans- 
fer already existing in the State Board, but rather a confirmation 
and extension of them to the asylum thus created. 

The act establishing the State Asylum for Insane Criminals 
(St. 1895, c. 390) contains sundry provisions relating to the 
commitment and transfer of insane criminals to said asylum ; but 
there is nothing in the act which seems intended to limit the gen- 
eral authority already existing in the State Board to transfer insane 
paupers from one charitable institution or lunatic hospital to 
another. 

I am of opinion, therefore, that the State Board has authority to 
transfer insane paupers from the State Asylum for Insane Criminals 
to the Medfield Insane Asylum. 

Second. — How far have officers of insane hospitals the authority 
to pass upon the regularity of commitment papers, particularly the 
physicians' certificates which accompany the order of commitment 
issued by the court? 

St. 1895, c. 286, regulates the commitment of persons to lunatic 
hospitals. It provides that no one shall make a certificate to the 
court of the insanity of a person unless he shall state under oath 
that he is a graduate of a legally chartered school, that he has been 
in practice for three years, and that he is duly registered. The 
physician making the certificate must have examined the person 
alleged to be insane within five days of his signing the certificate, 
and shall state in the certificate that in his opinion said person is 
insane, and shall specify the facts on which his opinion is founded. 
It is further provided that a copy of this certificate, attested by 
the judge, shall be delivered by the officer making the commitment 
to the superintendent of the hospital, to be filed with the order of 
commitment. The statute further provides a form of certificate 
which ' k shall be deemed sufficient if substantially followed ; " but 
it does not prohibit the use of other suitable forms containing the 
required statements of fact. 

These provisions are intended for the guidance and control of 
the committing magistrate. They specify and limit the character 
of the evidence to be submitted for his adjudication. His deter- 
mination of the sufficiency of the evidence or the certificate sub- 
mitted is final and binding upon committing officers and keepers 
of State institutions, to whom his precepts are directed. They are 



84 ATTORNEY-GENERAL'S REPORT. [Jan. 

not called upon, nor have they the right, to question his adjudi- 
cation in the matter. They are not judicial officers. 

The provisions requiring a copy of the certificate to be filed are 
obviously for the benefit of the person committed, and are not 
intended to require the determination of the superintendent as to its 
sufficiency before obeying the order of commitment. 
Yours very truly, 

Hosea M. Knowlton, Attorney -General, 



Veterans' bounties. — Promises of towns and cities to pay bounties during 
the war. — St. 1897, c. 179. 

Sts. 1897, c. 179, applies only to such promises of bounty as were made to 
induce enlistment, and which in fact wholly or in part did induce 
enlistment ; it, therefore, does not apply to drafted men or their sub- 
stitutes. 

It is immaterial whether the promise to pay a bounty in consideration of 
enlistment was for a cash payment at the beginning or at the end of 
the service, or whether it was the promise of monthly or periodical 
payment, or was a valid promise in law when made or not. 

Oct. 20, 1897. 
Edwin B. Robbins, Esq., Secretary. 

Dear Sir : — Your letter of September 9 requires my opinion as 
to the construction of St. 1897, c. 179, entitled "An act to pro- 
vide for the payment of bounties to Massachusetts soldiers from 
the treasury of the Commonwealth in certain cases." The specific 
questions submitted can better be answered by a consideration of 
the scope and purpose of the act. 

The duty of the commission is to investigate claims for unpaid 
bounties presented by veterans of the late war for the suppression 
of the rebellion. The act provides that when the commission finds 
that the veteran in whose name the claim is presented " was prom- 
ised a bounty for military or naval service by any city or town in 
this Commonwealth, that said veteran afterwards duly complied 
with the conditions under which said bounty was to be paid, and 
that said bounty has not been paid," it may certify the claim for 
payment from the treasury of the Commonwealth. 

The language quoted defines and limits the class of claims 
included within the provisions of the act. They are claims in 
which (1) the veteran was promised a bounty by a city or town in 
the Commonwealth, (2) the promise was made in consideration 
of military or naval service, (3) the service was rendered in con- 
sideration of which the bounty was promised, and (4) the bounty 
has not been paid. 



1898.] PUBLIC DOCUMENT — No. 12. 85 

The statute intended to include cases only in which the promise of 
bounty was made in consideration of military or naval service to be 
rendered by the person to whom the bounty was promised. The 
word "consideration" is not used; but a promise of a bounty 
" for military or naval service " is a promise in consideration of 
such service. In the recent case of Brown v. Russell, 166 Mass. 
14, Article VI of the Declaration of Rights, which provides that 
" No man, nor corporation, or association of men, have any other 
title to obtain advantages . . . distinct from those of the com- 
munity, than from what arises from the consideration of services 
rendered to the public," was considered by the court ; and it was 
held that the words "consideration of services rendered to the 
public" did not mean or include services which had been rendered 
to the public in the past, but services to be rendered. I think a 
similar interpretation is to be given to the words of the act in ques- 
tion, and that a promise of a bounty for military or naval service, 
in the absence of any explicit declaration to the contrary, is to be 
taken to mean a promise in consideration of military or naval ser- 
vice to be rendered. This view is strengthened by the subsequent 
expression in the statute, to wit, " that said veteran afterwards 
duly complied with the conditions under which said bounty was to 
be paid." The word " afterwards," taken in connection with all 
of the words used, makes it plain that the Legislature had in mind 
only such promises of bounty as were made to induce enlistment, 
and which in fact wholly or in part induced such enlistment. 

The act expresses the purpose of the Commonwealth to fulfil 
such promises as were made by the cities and towns of the State 
to induce persons to enter the service of the United States ; but 
which promises, for any reason, have not been fulfilled. Cases 
where the promise was not the consideration of entering the ser- 
vice are not included within the provisions of the act. It cannot 
properly be said that a soldier, to whom a bounty was voted by a 
city or town after his enlistment, made a contract with a town 
under which he went into service, or that any promise was made 
him as a consideration of such service. The language used points 
clearly to a promise made upon consideration of service to be per- 
formed, and not to a gratuity voted or promised which was not an 
inducement to the soldier or sailor to enter the service. 

This being so, it is the duty of the commission to disallow all 
claims for bounty where the vote of the town was not the induce- 
ment to service. The promise of a bounty to a man already in 
the field, and not in consideration of enlistment, or made after the 
expiration of service, is not such a promise as is included in the 
meaning: of the act. 



86 ATTORNEY-GENERAL'S REPORT. [Jan. 

The foregoing conclusions are reached without considering 
whether it would be constitutional for the Commonwealth to 
assume the payment of bounties not promised as a consideration 
for enlistment, but voted as a gratuity to men in the service. 
Brown v. Russell, 166 Mass. 14 ; Meade v. Acton, 139 Mass. 
341. It is not necessary to determine how far, in view of the 
decision of the court in Brown v. Russell, ubi supra, the Legisla- 
ture may constitutionally go in the way of gratuities to men who 
have served honorably the State, but whose service has long since 
ended ; for by this act, in my opinion, for the reasons stated above, 
the Legislature did not intend the payment of such gratuities, but 
rather the fulfilment of executory promises, which, for any cause, 
have not been performed. 

For the same reasons I am of opinion that a vote of a town to 
pay a bounty to men drafted into the service and credited to the 
town, or to those whom they should employ as substitutes, is not 
within the intent of the act. A conscript could not make a con- 
tract for service with the town. He served, or furnished a sub- 
stitute, because he was compelled to by reason of the draft made 
upon him, and any promise in consideration of such service to be 
rendered was without consideration. It cannot be said that one 
who was drafted rendered military or naval service in considera- 
tion of a promise made by the city or town to which he was cred- 
ited that he should be paid a bounty. The language of the act in 
question does not include this class of persons. The same is true 
of substitutes. His contract was with the man whose place he 
filled. He was hired to take the place of a man who could make 
no contract with the town, and he could not stand in any better 
situation than the man whom he represented. 

The word " bounty" has been defined by Chief Justice Bigelow, 
in Fowler v. Danvers, 8 Allen 80, 84, as signifying " money paid 
or a premium offered to encourage or promote an object, or 
procure a particular act or thing to be done." This definition 
agrees with the meaning given to the word in dictionaries of 
approved authority. There is nothing in the history of the legis- 
lation relating to bounties, or in the act now under consideration, 
tending to show that this is not the meaning to be given to the 
word in this statute. It is immaterial whether bounty promised 
in consideration of enlistment was in the nature of a cash payment 
at the beginning or at the end of the service, or whether it was 
a monthly gratuity in the form of wages. If the city or town, 
not being under obligation to pay wages, promised as a considera- 
tion for enlistment that it would pay a monthly sura either to the 
soldier or to his family, in addition to the wages paid him by the 



1898.] PUBLIC DOCUMENT — No. 12. 87 

government of the United States, and this promise was made as a 
consideration of and before enlistment, and the enlistment was 
induced wholly or in part by such promise, the monthly or periodi- 
cal payment so promised must be regarded as a bounty within the 
meaning of the act. 

In James v. Scituate, 11 Allen 93, a promise made by the town 
" to pay to each volunteer soldier raised in this town and being an 
inhabitant therein and mustered into the service of the United 
States, . . . and having a family, fifteen dollars per month in 
addition to the sum allowed by the United States per month and 
during such service, and to each soldier not having a family the 
sum of ten dollars per month for like service," was held by the 
court to be a bounty. Mr. Justice Gray, in delivering the 
opinion, speaking of this promise, said : " The town offered him 
a bounty if he would volunteer and be mustered in. He ac- 
cepted the offer by entering into an organization of militia which 
was liable to be called into the national service." 

I am of opinion that, whenever a volunteer was promised, as 
an inducement to his enlistment, a gratuity of a fixed sum per 
month, during his service, or for any other time, such promise 
was the promise of a bounty, and is within the spirit of the act in 
question. 

Whether the promise of a bounty referred to in the act is 
intended to include every promise made by a town or city, even 
though unlawful, or is limited only to such promises as the town 
had the right under existing laws to make, or which were ratified by 
subsequent legislation, is a question of much difficulty. In some 
cases promises were made by towns without authority, or even 
against express prohibition by the Commonwealth. Promises to 
pay monthly wages during the term of service were by subsequent 
ligislation ratified for a period of ninety days, and declared to 
terminate at the end of that period. St. 1861, c. 222, § 2. 
If the intention of the Legislature in passing the act in question 
was to obligate the Commonwealth to the fulfilment of such void 
or prohibited promise, it is unfortunate that such intention was not 
more clearly expressed, for ordinarily the word " promise " used 
in a statute would be taken to mean only a lawful promise. 

On the other hand, it is not to be presumed that the cities and 
towns were not ready to fulfil, and did not when requested fulfil, 
all promises for bounty which they had lawfully made. I am not 
informed that any such attempt at repudiation was made by any 
of the municipalities in the Commonwealth. Indeed, if it had 
been attempted, the promises made might have been enforced in 
the courts. It has been repeatedly held that a lawful promise to 



88 ATTORNEY-GENERAL'S REPORT. [Jan. 

pay a bounty could be enforced in an action of contract against 
the town. Grover v. Inhabitants of Pembroke, 11 Allen 88 ; Carr 
v. Warren, 98 Mass. 329. 

If, therefore, the scope of the act be limited only to such 
promises as the town could lawfully make, or which were ratified 
by subsequent legislation, the number of persons benefited under 
the act would be very limited. It would include only those who 
had for any reason failed to seasonably present their claim. Such 
a construction of the statute would practically make it merely an 
act for the relief of veterans whose claims are barred by the 
statutes of limitations. Such a narrow and limited construction 
is not to be presumed, unless clearly made necessary. 

On the contrary, the history of legislation upon the matter of 
unpaid bounties points to a more liberal construction of the act. 
From time to time special acts have been passed giving bounties 
to certain soldiers whose claims against their towns or cities were 
for any reason void. For example, in Marsh v. Scituate, 153 
Mass. 34, judgment was rendered for the defendant upon four 
actions to recover bounty money, upon the ground that the promise 
of the town relied upon was void. Thereupon, by Res. 1895, c. 
125, the plaintiffs in said suits, together with twenty-three other 
persons, were voted a sum to be paid out of the treasury of the 
Commonwealth equivalent to the bounty promised them by the vote 
of the town, which had been adjudged illegal. There are many 
similar resolves upon the statute books. Vid. Res. 1895, cc. 123, 
124, 126 ; Res. 1896, cc 103, 104, 106, 107, 108, 109, 110, 115, 
117. Many, if not all, of these special resolves were for the 
payment of bounties to soldiers, promised by votes of cities or 
towns which were void under the statutes of the Commonwealth. 
Other like claims were presented to the Legislature of 1897, which 
passed the act in question. 

It is to be presumed that the Legislature, in the enactment of a 
general law providing for the payment of bounties from the treas- 
ury of the Commonwealth to veterans who had enlisted under 
promises made by towns and cities, had in mind the numerous 
special acts upon the same subject which had been passed by 
previous Legislatures, and the petitions for further grants of the 
same character which were then pending before it. It is a familiar 
principle of the construction of statutes that the history and gen- 
eral system of legislation upon any given subject may be taken 
into consideration in order to aid the construction of a statute 
relating to the same subject. Church v. Crocker, 3 Mass. 21. 
In view of the numerous special acts granting bounties to veterans 
of the civil war in cases where promises made to them by the 



1898.] PUBLIC DOCUMENT — No. 12. 89 

towns were unauthorized and therefore void, it is beyond doubt 
that the purpose of the act in question was to pass a general law 
covering the whole subject matter by the appointment of a com- 
mission to adjudicate and pass upon all such claims. 

I am of opinion, therefore, that it is not the duty of your com- 
mission to determine whether the promises of the towns were valid 
in law, or not. If a bounty was promised by a town or city, and 
the service was performed in consideration of such promise, the 
veteran is entitled to be reimbursed from the Commonwealth, if 
for any reason the bounty has not been paid by the town. 
Yours very truly, 

Hosea M. Knowlton, Attorney-General. 



Registered pharmacist. — Selling liquor. — Plea of guilty. — Conviction. 
A plea of guilty in the superior court by a registered pharmacist charged 
with selling liquor in violation of the terms of his license is a " con- 
viction" within the meaning of St. 1896, c. 397, § 9, and the Board of 
Registration in Pharmacy has authority to revoke or suspend his license 
after clue hearing. 

Nov. 10, 1897. 
H. M. Whitney, President, Board of Registration in Pharmacy. 

Dear Sir: — St. 1896, c. 397, provides, in section 7, that 
your Board shall hear all complaints made to them against any 
person registered as a pharmacist, charging him with suffering 
or permitting the use of his name or certificate of registration in 
the conduct of the business of pharmacy when he himself is not the 
owner and actively engaged in such business ; or engaging in, aiding 
or abetting the violation, or, in his business as a pharmacist, vio- 
lating any of the laws of the Commonwealth now under the super- 
vision of the Board of Registration in Pharmacy, and especially 
the laws relating to the sale of intoxicating liquor. Section 9 
provides that, if the Board find the person complained against to 
be guilty of the charges, they may suspend or revoke his registra- 
tion, " but the license or certificate of registration of a registered 
pharmacist shall not be suspended or revoked for a cause punishable 
by law until after conviction by a court of competent jurisdiction." 

The question stated in your letter of October 28 is whether a 
plea of guilty made by a person complained against in the superior 
court is a " conviction," within the meaning of that word as used 
in section 9, the material words of which are quoted above. 

It is well settled that in its ordinary legal sense of the word 
" conviction," as used in the statutes of the Commonwealth, signi- 
fies that the defendant has pleaded guilty, or has been found guilty 



90 ATTORNEY-GENERAL'S REPORT. [Jan. 

by the verdict of a jury. The exhaustive opinion of Chief Justice 
Gray, in Com. v. Lockwood, 109 Mass. 323, leaves no doubt that 
such was the meaning of the word " conviction," not only in the 
common law, but as it was used in the Constitution, and, for the 
most part, in the statutes of the Commonwealth. Moreover, it is 
expressly provided, in Pub. Sts , c. 200, § 5, that " No person in- 
dicted for an offence shall be convicted thereof, unless by confess- 
ing his guilt in open court, by admitting the truth of the charge 
against him by his plea or demurrer, or by the verdict of the jury 
accepted and recorded by the court." 

In some statutes, however, the word is used as implying the 
judgment and sentence of the court upon a verdict or confession 
of guilt. For example, the provisions of the statutes (Pub. Sts., 
c. 169, § 19), that the conviction of a witness of crime may be 
shown to affect his credibility, has been held to be limited to cases 
where final judgment has been entered upon the verdict. Com. 
v. Gorham, 99 Mass. 420. So also in case of the plea of autrefois 
convict. Com. v. Lockwood, 109 Mass. 323, 329. These and 
other cases in which the word "conviction" is used in a more 
comprehensive sense as implying a judgment may be regarded, 
however, as exceptions to the general rule, arising in most in- 
stances from the fact that the record of the judgment is to be used 
as evidence in some other proceeding. 

If in the statute under consideration the word " conviction " is 
to be taken to mean final judgment, it must be because of some 
special reason taking the case out of the general rule, as above 
stated. Elsewhere in the statute (section 16) the word " convic- 
tion " is used in its ordinary signification ; and it is not to be pre- 
sumed that the same word would be used in two senses in the same 
statute, unless there is some manifest reason therefor. 

The purpose of the Legislature in the provision under consider- 
ation is not wholly clear. The conviction itself is not made 
evidence for the consideration of the Board, as in the case in Pub. 
Sts., c. 100, § 18, where the conviction operates as a forfeiture of 
license, and where, presumably, the word is used in the more com- 
prehensive sense. The provision in question was probably intended 
to prevent the Board from trying the question of the guilt of the 
person complained of before he had had opportunity to defend 
himself before a jury. If this is so, there is no reason why the 
Board should be required to wait until judgment be entered before 
taking jurisdiction. If a person has confessed guilt in open court, 
or has been found guilty by a jury, it cannot properly be said that 
the Board are prejudicing his right to a fair trial in court by pro- 
ceeding to try a complaint pending before them charging the same 



1898.] PUBLIC DOCUMENT — No. 12. 91 

offence as that to which he has pleaded guilty, or upon which he 
has been found guilty by a jury. If it were otherwise, it would be 
in the power of the court or the district attorney to prevent in- 
definitely the revocation of the license of one who has violated the 
provisions of the statute. This, obviously, the Legislature did 
not contemplate, for the sole jurisdiction over pharmacists' licenses, 
and over the granting and revoking of them, is in the Board. 

It is to be observed that the statute does not make the convic- 
tion of the person complained of a conclusive or adequate cause 
for revocation of his license by the Board, as doubtless would 
have been the case if the word " conviction " implied a final judg- 
ment. Notwithstanding the proceedings in court, the Board must 
still proceed to hear the case, and find for themselves, upon the 
evidence before them, that " the person is guilty of the acts 
charged against him." 

I am of opinion, therefore, that after plea or verdict of guilty 
rendered against the complainant the Board have jurisdiction to 
suspend or revoke the license of the person complained against, 
upon due hearing as provided in the statutes. 
Yours very truly, 

Hosea M. Knowlton, Attorney-General. 



Member of Legislature. — Contract in which State is interested. — Pay- 
ment. 

A contract made by the trustees of the Massachusetts Hospital for Epilep- 
tics with a member of the Legislature for the installation of a boiler 
and other heating apparatus in the hospital subjects the member to a 
tine, under Pub. Sts., c. 205, § 12, is illegal, and the member cannot 
recover upon it in an action at law ; yet, the work under it having 
been nearly completed before either party knew of the provision of 
the statute forbidding the member from making it, the trustees may 
waive the right to insist upon the defence of illegality, and pay to the 
contractor the amount they find equitably due him on the contract. 

Nov. 17, 1897. 
William N. Bullard, M.D., 

Chairman of Trustees of Massachusetts Hospital for Epileptics. 

Dear Sir : — Your letter of November 11 discloses the following 
facts. Acting under the authority of St. 1895, c. 483, § 2, the 
trustees of the Massachusetts Hospital for Epileptics, having duly 
advertised for proposals, made a contract with the lowest responsi- 
ble bidder for the installation of a boiler and other heating appara- 
tus for the hospital being erected under the supervision of the 
Board, the contract price being about $1,600. The contract was 
awarded to the lowest responsible bidder, after due investigation 



92 ATTORNEY-GENERAL'S REPORT. [Jan. 

of his ability. He has practically completed the work in accord- 
ance with the terms of the contract, and to the satisfaction of the 
Board. It thus appears that all the requirements of the statute 
binding upon the trustees have been complied with, and that the 
contractor would be entitled to receive his money unless prevented 
by the following facts. 

The contractor is a member of the Legislature of 1897, and 
under the provisions of Pub. Sts., c. 205, § 12, the making of 
such a contract was prohibited to him. The section substantially 
provides that if a member of the Legislature is personally in- 
terested in a contract in which the State is a party interested, 
which is made by a State commission or by authority derived 
therefrom, he is liable to punishment by fine or imprisonment. I 
am informed that when the contract was signed, and until within 
a short time before the completion of the work, neither the con- 
tractor nor the trustees were aware of this provision ; and that 
when the matter was called to the contractor's attention he imme- 
diately ceased work. This, however, was not until the contract 
was substantially performed. 

It is well settled that no recovery can be had in law upon an 
illegal contract. Miller v. Post, 1 Allen 434 ; Goddard v. Raw- 
son, 130 Mass. 97. This is true not only in a suit upon the 
contract, but also upon open account for the value of services or 
materials furnished. In other words, the contractor or purchaser 
may retain the proceeds of an illegal contract, and cannot be sued 
for the price thereof by a person who in making the contract was 
guilty of a violation of law. One who is benefited by a contract 
made upon the Lord's day could not be held liable in a suit brought 
upon such contract, even though the fruits of the contract remained 
in his hands. Ladd v. Rogers, 11 Allen, 209 ; Cardoze v. Swift, 
113 Mass. 250. The trustees, therefore, may retain the results 
of the work done under the contract, and defend the Common- 
wealth against any suit brought therefor in whatever form by the 
contractor. 

But this is a matter of defence only. The trustees have com- 
mitted no offence, the prohibition being against a member of the 
Legislature only. It is not illegal for one who has received the 
proceeds of a contract which is so prohibited to pay the price 
agreed upon. He may waive his rights in law, and treat the con- 
tract as subsisting. For example, one who buys coal which was 
not duly weighed by a sworn weigher, might, prior to a statute 
altering the principles of the common law, keep the coal and 
successfully defend a suit for the price of the same. But if the 
person receiving the benefit of such a prohibited or illegal contract 



1898.] PUBLIC DOCUMENT — No. 12. 93 

sees fit to pay the price of what he has received, he commits no 
offence, and is not guilty of violating any statute. 

The trustees, having complied with all the provisions of the 
statute applicable to them, have the right in their discretion to 
pay to the contractor the amount which they find equitably due 
him thereon, waving their right to insist upon any defences that 
would be open to them by reason of the illegality of the contract 
on his part. 

Yours very truly, 

Hosea M. Knowlton, Attorney -General. 



Foreign insurance company. — Reinsurance of Massachusetts risks. 

An insurance company organized under the laws of another state or gov- 
ernment, and admitted to do business in this Commonwealth, has no 
authority to effect reinsurance on risks taken by it in Massachusetts 
in companies not authorized to do business in this Commonwealth. 

Dec. 1, 1897. 
Hon. Frederick L. Cutting, Insurance Commissioner. 

Dear Sir: — Your letter of Nov. 4, 1897, requires my opinion 
upon the following question : Have insurance corporations, or- 
ganized under the laws of another state or government, and duly 
admitted to do business in this state, authority to effect reinsur- 
ance on Massachusetts risks in corporations not authorized to do 
business in this Commonwealth? 

St. 1894, c. 522, § 84, provides in terms that " no company of 
another state or government shall directly or indirectly contract 
for or effect reinsurance on any risk in Massachusetts with any 
company not authorized to do business therein." If this provision 
is not modified by any other statute, it furnishes a conclusive an- 
swer to your question. 

It is probable that your question was suggested by the appar- 
ently contradictory provision of section 20 of the same statute 
from which the above provision is quoted. That section is as fol- 
lows : "If any company authorized to transact the business of 
insurance in this Commonwealth shall directly or indirectly con- 
tract for or effect any reinsurance of any risk or part thereof taken 
by it, it shall make a sworn report thereof to the Insurance Com- 
missioner at the time of filing its annual statement, or at such 
other time as he may request; and such reinsurance, except so far 
as it is in companies authorized to do business in this Common- 
wealth, shall not reduce the reserve required of it or the taxes to 
be paid by it, or increase the amount it is authorized to have at 



94 ATTORNEY-GENERAL'S REPORT. [Jan. 

risk in any town or fire insurance district." Inasmuch as this 
provision seems to recognize reinsurance with companies not 
authorized to do business in this Commonwealth, there is an ap- 
parent contradiction between the two provisions. 

It is to be observed, however, that the section last quoted is 
not limited to insurance in Massachusetts. I am of opinion, 
therefore, that the provision in section 84 above quoted is to be 
construed as a proviso or limitation of the general provisions in 
section 20. Taking the two sections thus together, they amount 
to a requirement that in all cases of reinsurance by a company of 
any risk, whether within or without the Commonwealth, a sworn 
report thereof shall be made to the Insurance Commissioner ; and 
that such reinsurance (excepting in companies authorized to do 
business in the Commonwealth) shall not reduce the reserve re- 
quired or the taxes to be paid ; provided, that no reinsurance by 
a foreign insurance company of any risk in Massachusetts shall 
be made with any company not authorized to do business in the 
Commonwealth. Thus construed, the provisions are not incon- 
sistent. 

Your question is, therefore, to be answered in the negative. 
Yours very truly, 

Hosea M. Knowlton, Attorney- General. 



Assessment insurance. — Sick-benefit business. — St. 1890, c. 421. 

St. 1890, c. 421, does not allow the Berkshire Health and Accident 
Association, an assessment insurance company, to continue to con- 
tract to pay benefits for disability caused by illness, although its char- 
ter and previous statutes did allow it to make such contracts. 

Dec. 4, 1897. 
Hon. Frederick L. Cutting, Insurance Commissioner. 

Dear Sir: — Your letter of the 1st inst., requires my opinion 
upon the question whether the Berkshire Health and Accident 
Association, a Massachusetts corporation, is authorized to contract 
for the paying of weekly benefits for disability caused by illness. 

The Berkshire Health and Accident Association was incorporated 
Jan. 18, 1885, under the provisions of Pub. Sts., c. 115, as 
amended and enlarged by St. 1882, c. 195. The purpose of the 
organization as set forth in its articles of association was the 
" providing a weekly benefit for its members in case of total dis- 
ability from accident or illness." This purpose was a legal one 
under the provisions of statutes then in force, and under which it 
was incorporated. 



1898.] PUBLIC DOCUMENT — No. 12. 95 

By St. 1885, c. 183, assessment insurance was defined and reg- 
ulated, and all companies carrying on the business of assessment 
insurance were declared to be subject to the provisions of that 
statute, excepting only the so-called fraternal beneficiary corpo- 
rations. This corporation is not, and never was, a fraternal bene- 
ficiary corporation. The statute of 1885, c. 183, in section 1 
provided that 4t Every contract whereby a benefit is to accrue to a 
party or parties named therein upon the death or physical disability 
of a person, which benefit is in any degree or manner conditioned 
upon the collection of an assessment upon persons holding similar 
contracts, shall be deemed a contract of insurance on the assess- 
ment plan." The act further provided that the business involving 
the issuance of such contracts should be carried on only by duly 
organized corporations, subject to the provisions and requirements 
of said act. The same section further provided as follows : " If 
the benefit is to accrue through the death of the insured person, 
the contract shall be of life insurance ; if through the accidental 
death only, or the physical disability from accident or sickness of 
the insured, it shall be casualty insurance." Under these provi- 
sions the corporation in question could lawfully provide for the 
payment of benefits to persons disabled by illness. 

St. 1890, c. 421, was another general law relating to assess- 
ment insurance superseding the statutes of 1885, and all other 
laws, theretofore passed upon the subject of assessment insurance. 
This statute, which is practically the existing law relating to 
assessment insurance, contained an important modification of the 
provisions of the previous law upon the subject (St. 1885, c. 183), 
the provisions of which I have quoted above. This modification 
consisted in the elimination of contracts for benefits to be paid in 
consequence of physical disability arising from sickness. The 
exact words of section 1 are as follows : u If the benefit is to 
accrue through the death of the insured person, the contract shall 
be of life insurance ; if through the accidental death only, or the 
physical disability from accident of the insured, it shall be of 
casualty insurance." The words " or sickness " contained in the 
statute of 1885 are omitted in the statute of 1890. The omission 
of these words plainly indicated that the Legislature did not intend 
longer to authorize the making of contracts of insurance providing 
for the payment of benefits to persons disabled by illness. The 
reasons for thus omitting what are commonly called " sick benefits " 
it is not necessary now to consider, although they seem sufficiently 
obvious. 

It remains to consider whether the statute of 1890 has made any 
exceptions in favor of existing companies like the one in question, 



96 ATTORNEY-GENERAL'S REPORT. [Jan. 

which by their original charters were authorized to pay benefits to 
persons disabled by illness. Upon this question the provisions of 
St. of 1890 seem to be sufficiently explicit. Section 1, after defining 
assessment insurance, provides in terms that " the business in- 
volving the issuance of such contracts (to wit, contracts of insur- 
ance upon the assessment plan) shall be carried on in this 
Commonwealth only by duly organized corporations subject to the 
provisions and requirements of this act." Then, after providing 
for two forms of contracts, to wit : first, where benefit accrues from 
the death of the insured person, and : second, where it accrues 
through accidental death or disability from accident of the insured, 
the section provides that " such business shall be lawful only as 
defined and permitted by this act." The eight following sections 
provide for the formation of corporations to transact the business 
of life or casualty insurance, arising from accident or death, on 
the assessment plan; and section 9 provides that " Corporations 
so organized may transact the business of life or casualty insur- 
ance arising from accident, or both, on the assessment plan." 
Section 25 of the same act is as follows : " Any corporation exist- 
ing under the laws of this Commonwealth and now engaged in 
transacting the business of insurance on the assessment plan, may 
re-incorporate under the provisions of this act : provided, that noth- 
ing in this act contaiued shall be construed as requiring or making 
it obligatory upon any such corporation to re-incorporate, and any 
such corporation may continue to exercise all the rights, powers 
and privileges conferred by this act, or its articles of incorporation 
not inconsistent hereivith, and shall be subject to the requirements 
and penalties of this act the same as if re-incorporated hereunder." 

Taking these and the other provisions of St. 1890 together, it 
is plain that the Legislature intended to authorize the business of 
assessment insurance to be carried on only in the two ways speci- 
fied in section 1, viz., life insurance and casualty insurance ; mean- 
ing by casualty insurance contracts for the payment of benefits in 
cases of accidental death, or of disability arising from accident. 
No other forms of assessment insurance were intended to be rec- 
ognized or authorized. Corporations thereafterwards organized 
could carry on either or both of the specified classes of assessment 
insurance. Corporations already in existence and carrying on 
assessment insurance business of any kind could reincorporate 
under the act, or could continue their business, exercising all the 
rights conferred by their articles of incorporation not inconsistent 
with the provisions of the statutes of 1890. 

While it is undoubtedly true that the purpose of the Legislature 
to prohibit the business carried on under the common designation 



1898.] PUBLIC DOCUMENT — No. 12. 97 

of " sick benefits " could have been more plainly expressed, its 
purpose, upon consideration of all the provisions of the act, is 
sufficiently clear and unmistakable. 

I am of opinion, therefore, that the corporation in question may 
not make contracts providing for the paying of benefits for dis- 
ability caused by illness. 

Yours very truly, 

Hosea M. Knowlton, Attorney- General. 



Armories. — Use — Fair for charity. 

Armories provided for the militia, under St. 1888, c. 384, may not be used 

by a regiment for the purpose of holding a fair for the benefit of a 

charitable society. 

Dec. 6, 1897. 
Maj.-Gen. Samuel Dalton, Adjutant-General. 

Dear Sir : — -Your letter of the 3d requires my opinion upon 
the question whether troops located in armories provided under 
St. 1888, c. 384, may " use the armories for the benefit of out- 
side charities." Your letter further states that in the specific case 
upon which the question arises it is proposed by a regiment of 
volunteer militia to hold a fair for the benefit of a charitable 
society, to wit : the Home for Consumptives. 

St. 1895, c. 465, § 5, provides as follows : " Armories pro- 
vided for the militia under the provisions of chapter three hundred 
and eighty-four of the acts of the year eighteen hundred and 
eighty-eight shall not be used except by the active militia of this 
Commonwealth, and they shall not be loaned or let to any one ex- 
cept for a proper military purpose, and then only when the appli- 
cation is approved by the commander-in-chief and intermediate 
commanders." 

The plain purpose of this statute is to forbid the use of armories 
provided for the militia excepting by the active militia, and for 
proper military purposes. Your question must be answered in the 
negative. 

Yours very truly, 

Hosea M. Knowlton, Attorney-General. 



98 ATTORNEY-GENERAL'S REPORT. [Jan, 



Expenses of jails. — Appropriation. — County treasurer. — St. 1897, c. 
153, § 10. 

Salaries of jailers, masters and assistants, and expenses incurred for the 
support of prisoners in jails and houses of correction, are expenditures 
"required by law," and the appropriation for them having been used 
before the end of the financial year, the county treasurer may pay 
them for the remainder of the year, under St. 1897, c. 153, § 10, out 
of any money in the county treasury. 

Dec. 20, 1897. 

Charles R Prescott, Esq., Controller of County Accounts. 

Dear Sir: — St. 1897, c. 153, § 10, is adapted to meet the 
difficulties suggested in your letter of December 6. The facts you 
state are that, in the county in question, the appropriations have 
proved not to be sufficient to pay the expenses incurred for 
" salaries of jailers, masters and assistants, and the support of 
prisoners in jails and houses of correction ; " and that the amount, 
owing to unforeseen contingencies, was all expended in eleven 
months of the financial year. 

The expenditures referred to are "required bylaw," and are 
therefore within the provisions of section 10, above referred to, 
which provides in terms that " Whenever the appropriation for any 
purpose is insufficient to meet any expenditure required by law 
the county treasurer may, on the order of the county commissioners, 
make payment for such legally required purpose out of any money 
in the county treasury." The salaries of the persons named are 
fixed by law, and the prisoners must be supported. It is not al- 
ways possible to foresee the amount required for such purposes, 
particularly the support of prisoners. It was the obvious intention 
of the Legislature to provide for just such contingencies by the 
section referred to. 

Yours very truly, 

Hose a M. Knowlton, Attorney- General. 



Tender. —Surety. —St. 1887, c. 438. — St. 1890, c. 215. 

Moneys paid to clerks of municipal or district courts as " tender" and as 
" surety" in lieu of bond on appeal, in civil cases, are included in the 
provisions of St. 1887, c. 438, §§ 3, 4 and 6, and the Controller of 
County Accounts has the right to require an accounting of them. 

The same moneys, if, for any reason, they remain in the hands of clerks, 
come within the provisions of St. 1890, c. 215, and should be deposited 
in a national bank. 

Dec. 20, 1897. 

Charles R. Prescott, Controller of County Accounts. 

Dear Sir : — Your letter of November 18 requires my opinion 
upon the following questions, to wit : — 



1898.] PUBLIC DOCUMENT — No. 12. 99 

1. Are moneys paid to the clerk of a municipal or district 
court as " tender," in civil cases, included in the funds or moneys 
described in and included in the provisions of St. 1887, c. 438, 
§§ 3, 4 and 6? 

2. Are moneys paid into court as " surety," in lieu of bond on 
appeal in civil cases, so included? 

3. Are the moneys above designated included in and covered 
by the provisions of St. 1890, c. 215? 

The first two questions may be properly considered together. 

St. of 1887, c. 438, § 3, provides that the controller " shall visit 
... at least once a year . . . all . . . clerks of police, munic- 
ipal or district courts . . . and at such times shall make an ex- 
amination of the books, accounts and vouchers of the aforesaid 
officers, ascertaining in detail the various items of receipts and ex- 
penditures ; and said controller shall ascertain the actual amount 
of cash or money on hand in any of the aforesaid departments or 
with any of said officers." Section 4 of the same chapter provides 
that it shall be " the duty of all such officers ... to make re- 
turns and exhibits under oath to said controller in such form and 
at such time or times as he shall prescribe." Section 6 provides 
that the said officers shall " keep an accurate record of ... all 
sums of money which have in any way been charged or received 
by them or to their use by reason or on account of their offices or 
in their official capacity." 

By St. 1890, c. 216, § 2, it is further provided that the officers 
named in section 3 (above quoted) who " shall neglect or refuse 
to record or cause to be recorded in the cash book prescribed by 
the controller of county accounts an accurate classification of all 
moneys received and expended or paid out by them in their official 
capacity, or by reason or on account of the same," shall be guilty 
of a misdemeanor. 

I understand that it is claimed by some of the clerks of such 
courts that moneys paid as "tender " or " surety " are not within 
the provisions of the above statutes, and therefore are not in- 
cluded in the funds which the clerks are required to keep an 
account of, subject to the examination of the controller ; and that 
consequently the controller cannot by right demand to see the ac- 
counts or statements of receipts and disbursements of money so 
derived, nor to see vouchers of payments so made, nor to know or 
verify the actual balance on hand belonging to either account. 
This contention is based upon the fact that moneys paid as " ten- 
der " and as " surety " are not public funds. They are moneys in 
which neither the county nor the municipality is interested, but 
only the parties to the suit. The controller, being a public officer, 



100 ATTORNEY-GENERAL'S REPORT. [Jan. 

is not concerned, it is claimed, in such moneys, and consequently 
lias no right to examine the accounts of them. 

The difficulty with this contention lies in the fact that the 
language of the statute is explicit and comprehensive. Money 
paid as " tender " or as " surety," though not paid for the use of 
the public, is, nevertheless, paid to the clerk as a public officer, 
and received, held and paid out by him as such. The statute 
expressly includes " all moneys which have in any way been 
charged or received by them or to their use by reason or on ac- 
count of their said offices or in their official capacity." I am of 
opiuion that this language cannot be so limited as to exclude 
money received or paid for any purpose by clerks in their official 
capacity. 

The purpose of the statute, moreover, clearly looks to an exami- 
nation of all funds received by such officers, whether on public or 
on private account. If a clerk had money in his hands as clerk, 
which he was not required to keep and exhibit an account of to 
the controller, that officer would be unable to verify his accounts 
accurately, or to know with the certainty which the statute intends, 
the actual state of his cash. Money not required to be kept in 
the accounts exhibited to the controller could be transferred to the 
moneys so required to be kept in such a way that the accounts 
would appear to be correct, even when there was in fact an actual 
deficit. The only way in which the controller can keep fully in- 
formed of the facts is by requiring accounts to be kept of all 
moneys received by clerks in their official capacity. If that is 
done, the controller can check up the items of receipts and pay- 
ments, an.d ascertain if the cash on hand corresponds thereto. 

St. 1888, c. 275, which, in reference to the duties of the con- 
troller, uses the expression k ' public funds," does not, in my 
opinion, affect the question. That statute provides that the con- 
troller shall in his annual report make such suggestions and rec- 
ommendations to the General Court as, in his judgment, will tend 
to simple, uniform and economical method of accounting for pub- 
lic funds. Whatever that statute may mean, it relates to the 
duties of the controller, but does not modify the provisions of the 
statutes fixing the duties of clerks. 

I am of opinion, therefore, that the first two questions must be 
answered in the affirmative. 

The third question is, whether moneys paid to a clerk as " ten- 
der" or as " surety" are included in the provisions of St. 1890, c. 
215. That statute provides that " clerks of police, district and 
municipal courts, having cash funds in their hands as such officers 
beyond what is required for immediate use, shall make deposit 



1898.] PUBLIC DOCUMENT — No. 12. 101 

thereof as trustees in some national bank located in the county in 
which said officers serve." 

I am of opinion that the reasons stated above, which require an 
affirmative answer to your first two questions, are as well applica- 
ble to the determination of this question. Both classes of funds 
referred to by your question are in the hands of the clerks as pub- 
lic officers, and are not required for immediate use. If they are 
deposited as required by this statute, the controller is enabled, as 
already stated, to check up and verify the accounts of the clerks. 

It has been claimed that money paid as " tender " should be 
kept in specie, for the reason that it is said to be important for 
the parties to know whether the tender to the defendant by the 
plaintiff was made in lawful money. But the fact that lawful 
money is paid to the clerk is not evidence that money of that 
character was originally tendered. Bad money might have been 
offered to the plaintiff, and good money brought into court. 

It is of no consequence what sort of money is paid to the clerk, 
if he accepts it for the amount intended to be paid. Many techni- 
calities surrounded the subject of tender under the common law ; 
among them that only certain classes of money, to wit, gold and 
silver, or paper money declared by the government to be legal 
tender, should be used, thus excluding even bills of national 
banks. There could be no tender at common law after suit 
brought. This was cured by statute ; and it is provided (Pub. 
Sts., c. 168, § 24, et seq.) that a tender may be made, in certain 
cases, after action brought, and be availed of in defence if the 
amount tendered be paid into court. The words of the statute 
are, " bringing into court the amount so tendered for costs, as 
well as for the debt or damage." It is not the " money " tendered 
that must be delivered to the clerk, but the " amount." There is, 
therefore, no obligation on the part of the clerk to keep it separate. 
It follows that the amount so paid becomes funds in his hands 
as a public officer, and subject to the provisions of the statute 
referred to. 

Money paid as " surety " stands upon the same principle. The 
statute makes it the duty of clerks of inferior courts receiving 
money in lieu of bond to " transmit the same with the papers to 
the clerk of the superior court to which the appeal is taken." If 
the money received is transmitted forthwith, there is of course no 
reason for depositing it in a national bank ; but if for any reason 
it remains in the hands of the clerk, it comes within the provisions 
of the statute. 

Yours very truly, 

Hosea M. Knowlton, Attorney -General. 



102 ATTORNEY-GENERAL'S REPORT. [Jan, 



Opinions upon Applications for Leave to file 

Informations in the Name of the 

Atto rne y- General . 

Attorney-General v. Selectmen of Wellesley. 

An information for a writ of mandamus will not be signed by the attorney- 
general when upon the facts shown it is clear that the duty for the 
neglect of which mandamus is sought will be performed by the re- 
spondents before the case can be heard by the court. 

Oct. 29, 1897. 

This was an application by the Democratic committee of the 
town of Wellesley for an information against the selectmen of that 
town. 

The information set forth that John H. Sheridan and Charles M. 
Eaton, who were appointed upon the board of registrars of said 
town of Wellesley as Democrats, had ceased to act with the 
Democratic party, and were not entitled to serve as the Democratic 
members of the board of registration; that the town committee 
had notified the selectmen that Sheridan and Eaton had so ceased 
to act with the Democratic party ; and that on the eleventh clay of 
October they filed with the selectmen a written complaint setting 
forth the facts, and requesting the removal of Sheridan and Eaton. 

The prayer of the information was for a writ of mandamus to the 
selectmen, commanding them to remove the said Sheridan and 
Eaton from their offices as registrars of voters, and to appoint 
members of the Democratic party in their places. 

St. 1893, c. 417, after providing for a board of registration, 
which shall represent the two leading political parties, further pro- 
vides, in section 29, that " Whenever, upon written complaint 
... to the selectmen of a town, and after notice and hearing, it 
shall appear that a registrar of voters, other than the . . . town 
clerk, has ceased to act with the political party which he was ap- 
pointed to represent, the . . . selectmen . . . shall remove such 
registrar from office." Under this statute the jurisdiction of de- 
termining whether a registrar " has ceased to act with the political 
party which he was appointed to represent " is given to the select- 
men. It is the duty of that board, when complaint is made, to 
give notice to the party complained against, and to hear and de- 
termine the question. If they refuse to give such a hearing. 



1898.] PUBLIC DOCUMENT — No. 12. 103 

mandamus lies to compel them so to do. If, therefore, there were 
no other facts than those stated in the petition, I should deem it 
my duty to sign the information, to the end that the complaint of 
the Democratic town committee might be duly heard and de- 
termined. 

But it appeared at the hearing before me that about the time 
the information was presented in this office the selectmen had 
ordered a hearing upon the complaint of the Democratic commit- 
tee, to be had November 16. The only result, therefore, which 
could come from the filing of this petition, would be a writ of 
mandamus to compel the board to perform a duty which will have 
been performed before the case can be heard by the court. Under 
these circumstances, I am opinion that the use of the name of the 
Attorney-General should not be granted to the information. 

It was strenuously urged at the hearing that by reason of the 
neglect of the selectmen the party which the petitioners represent 
has lost the right of being represented in the registration for the 
pending election. Whether this is so or not it is not necessary to 
determine, for, even if it be so, mandamus will not remedy the 
wrong. If through any neglect or failure of duty on the part of 
the selectmen the petitioners have lost rights, their remedy is by 
indictment. Mandamus does not lie to punish violations of the 
criminal law. 

Hosea M. Knowlton, Attorney- General. 



Attorney-General ex rel v. Richard Bray. 

An information in the nature of quo warranto will not be signed by the 
attorney-general excepting in cases where the question of the con- 
struction of a law affecting the Commonwealth generally is involved, 
or when the Commonwealth as such is for any reason interested in the 
doctrine of the question, or where no other remedy is open to the 
relator. When the question involved is purely local, and one in which 
the Commonwealth has no interest, mandamus is the more proper 
remedy. 

Dec. 20, 1897. 

This was an application to the Attorney-General for the filing 
of an information in the nature of quo warranto against the re- 
spondent to try his title to the office of superintendent of public 
buildings in Lowell. At the hearing it appeared that the respond- 
ent was holding the office lawfully, unless he had been removed 
therefrom by the election of the relator. The relator had been 
elected to the office by the common council, and the question upon 
concurring in the election came before the board of aldermen in 



104 ATTORNEY-GENERAL'S REPORT. [Jan. 

due course. A dispute occurred between the mayor, who presided 
at the meeting of the board of aldermen, and one of the board, as 
to the proper disposition of certain alleged dilatory motions. 
Finally one of the aldermen assumed charge of the meeting, en- 
tertained and put certain motions, which resulted in the election of 
the relator. The mayor and a minority of the board denied the 
right of the alderman in question so to do. The sole question 
raised by the information is whether the proceedings in the board 
of aldermen, by which it is alleged that the relator was elected to 
the office, were legally conducted. 

There is no question of the power of the Attorney-General to 
file an information in the nature of quo warranto against a person 
intruding upon a public office. This proceeding is a proper remedy 
to try the title between rival claimants to such office. 1 Spilling's 
Extraordinary Relief, § 620 ; 2 Spilling's Extraordinary Relief, 
§ 1374. If, therefore, the position of superintendent of public 
buildings in Lowell is a public office, the Attorney-General may 
bring an information against the person usurping the office. 

I do not deem it necessary, however, to determine the question 
whether the office of superintendent of public buildings is a public 
office, being of the opinion, upon other grounds, that it is my duty 
to refuse to sign the information. 

The case in question presents no question of the consideration 
of a law of the Commonwealth. If a public office, it is not one 
which is of importance to the citizens of the Commonwealth gen- 
erally. It has no connection with any department of the Com- 
monwealth, nor with the expenditure of its money. It is a purely 
local question. While, technically, assuming it to be a public 
office, it is one the wrongful holding of which may be inquired into 
upon information by the Attorney-General representing the public, 
it is obviously not one of the class of cases for which the remedy 
of quo zuarranto was principally designed. 

If an information by the Attorney-General were the only remedy 
open to the relator, the case might stand differently ; but the Su- 
preme Judicial Court has declared, in express terms, in a case 
similar in all respects to this, that a writ of mandamus "affords 
the speediest and best method of settling the dispute of rival 
claimants to a municipal office." Keough v. Holyoke, 156 Mass. 
403. Vid. also Russell v. Wellington, 157 Mass. 100, 106. This 
remedy, which has thus been approved by the judgment of the 
Supreme Judicial Court, is open to the relator. 

The practice of this office in respect to the filing of informations 
in the nature of quo warranto has not been uniform, even during 
the administration of the present incumbent. In view, however, 



1898.] PUBLIC DOCUMENT— No. 12. 105 

of the increasing frequency of such applications, in cases where 
only minor or purely municipal officers are involved, I am of 
opinion that a defiuite rule should be adopted in the matter, and 
that the use of the name of the Attorney-General should be in- 
voked only in cases of the character I have indicated. When a 
question of the construction of a law affecting the Commonwealth 
generally is involved, or when the Commonwealth, as such, is, for 
any reason, interested in the determination of the question, the 
information may, with propriety, be filed by the Attorney-General, 
regardless of the importance of the office. But when the question 
is purely local, and one in which the Commonwealth is in no way 
interested, excepting so far as the issue involved is technically, 
only, a public one, I am of opinion that the parties should be rel- 
egated to the use of the writ of mandamus, if that remedy be open 
to them. 

For the foregoing reasons I decline to sign the information. 
Hosea M. Knowlton, Attorney- General. 



106 ATTORNEY-GENERAL'S REPORT. [Jan. 



INFORMATIONS. 



1. At the Relation of the Treasurer and Receiver-General. 

(a) For the non-payment of corporation taxes for the year 

1896, informations were brought against the — 

A. M. Gardner Hardware Company. Tax paid and information 
dismissed. 

A. M. Richards Lumber Company. Tax paid and information 
dismissed. 

Adams Power Company. Enjoined. 

Arthur C. King Company. Tax paid and information dismissed. 

Bay State Metal Works. Tax paid and information dismissed. 

Bay State Packing Company. Tax paid and information dis- 
missed. 

Berlin Falls Fibre Company. Enjoined. 

Blanchard Machine Company. Tax paid and information dis- 
missed. 

Blackstone Valley Street Railway Company. Tax paid and infor- 
mation dismissed. 

Boston Advertising Company. Tax paid and information dimissed. 

Boston & Suburban Express Company. Tax paid and information 
dismissed. 

Boston Calendar Manufacturing Company. Enjoined. 

Boston Engraving Mclndoe Printing Company. Pending. 

Boston Market (corporation). Enjoined. 

Boylston Pharmacy (incorporated). Enjoined. 

Brookfield Brick Company. Tax paid and information dismissed. 

Brooks Bank Note Company. Tax paid and information dis- 
missed. 

C. W. Mutelle Manufacturing Company. Tax paid and informa- 
tion dismissed. 

Campbell Chemical Company. Tax paid and information dis- 
missed. 
Cape Ann Granite Railroad Company. Tax paid and information 

dismissed. 
Chas. A. Millen Company. Tax paid and information dismissed. 



1898.] PUBLIC DOCUMENT — No. 12. 107 

Chicopee Falls Wheel Company. Tax paid and information dis- 
missed. 

Childs & Kent Express Company. Tax paid and information dis- 
missed. 

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

Dunbar Mills Company. Tax paid and information dismissed. 

Evening Gazette Company. Tax paid and information dismissed. 

Foxboro Foundry and Machine Company. Tax paid and informa- 
tion dismissed. 

Franklin Educational Company. Tax paid and information dis- 
missed. 

George P. Staples & Co. (incorporated). Tax paid and informa- 
tion dismissed. 

Havenner & Davis (incorporated). Pending. 

Healey & Lovell Company. Tax paid and information dismissed. 

Henry C. Hunt Company. Tax paid and information dismissed. 

Highlaud Foundry Company. Pending. 

Howe Lumber Company. Tax paid and information dismissed. 

Johnson Manufacturing Company. Tax paid and information 
dismissed. 

Lamprey Boiler Furnace Mouth Protector Company. Tax paid 
and information dismissed. 

Manufacturers' Shoe Company. Enjoined. 

Massachusetts Car Company. Pending. 

Medway Water Company. Tax paid and information dismissed. 

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

Morrell Bros. Company. Tax paid and information dismissed. 

Monroe Boot and Shoe Company. Enjoined. 

New England Printing Telegraph Company of Mass. Tax paid 
and information dismissed. 

North Shore Lumber Company. Pending. 

Paul Askenasy Company. Tax paid and information dismissed. 

Pearson Box and Moulding Company. Tax paid and information 
dismissed. 

Pranker Manufacturing Company. Tax paid and information 
dismissed. 

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

Shady Hill Nursery Company. Tax paid and information dis- 
missed. 

Standard Grip Testing Machine Company of New England. 
Enjoined. 



108 ATTORNEY-GENERAL'S REPORT. [Jan. 

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

Taunton Evening News. Tax paid and information dismissed. 

Taunton Herald Company. Tax paid and information dismissed. 

Thompson & Odell Company. Tax paid and information dis- 
missed. 

Tremont Publishing Company. Pending 

Union Loan and Trust Company. Tax paid and information 
dismissed. 

W. F. Adams Company. Pending. 

Wade & Reed Company. Tax paid and information dismissed. 

Weymouth Seam Face Granite Company. Tax paid and informa- 
tion dismissed. 

Whittier Cotton Mills. Tax paid and information dismissed. 

Willey Company. Pending. 

Wm. H. King Sons Company. Tax paid and information dis- 
missed. 

Woodin Jewelry Company. Enjoined on tax return suit. 

Worcester Gas Radiator Company. Enjoined. 

Worcester Marble and Granite Company. Tax paid and informa- 
tion dismissed. 

Worcester Reed Chair Company. Tax paid and information 
dismissed. 

(b) For failure to file the tax return for the year 1896, required 
by section 38 of chapter 13 of the Public Statutes, informations 
were brought against the — 

Alpha Cycle Company. Pending. 

A. M. Niles Shoe Company. Return filed. Information dis- 

missed. 

American Camera Company. Return filed. Information dis- 
missed. 

American Publishing Company, The. Return filed. Information 
dismissed. 

American Transmission Rope Company. Enjoined. 

Arlington Hotel Company. Return filed. Information dismissed. 

Arnold Print Works. Return filed. Information dismissed. 

Arthur C. King Company. Return filed. Information dismissed. 

B. W. Fellows Machine Company. Return filed. Information 

dismissed. 
Babb Williams Douglass Company. Enjoined. 
Ballardvale Manufacturing Company. Return filed. Information 

dismissed. 



1898.] PUBLIC DOCUMENT— No. 12. 109 

Barnaby Manufacturing Company. Return filed. Information 
dismissed. 

Bay State Chair Company (incorporated), The. Return filed. 
Information dismissed. 

Blanchard Machine Company. Return filed. Information dis- 
missed. 

Boston Advertising Company. Return filed. Information dis- 
missed. 

Boston Calendar Company. Return filed. Information dismissed. 

Boston Clock Company. Return filed. Information dismissed. 

Boston Engraving and Mclndoe Printing Company. Return filed. 
Information dismissed. 

Boston Ice Cream Company. Return filed. Information dismissed. 

Boston Market (corporation). Enjoined on tax suit. 

Boston Specialty and Toy Company. Return filed. Information 
dismissed. 

Boston Stock and Grain Exchange. Return filed. Information 
dismissed. 

Boston Trading and Export Company, The. Return filed. Infor- 
mation dismissed. 

Boylston Pharmacy (incorporated). Return filed. Information 
dismissed. 

Bradley Fertilizer Company. Return filed. Information dis- 
missed. 

Bridgewater Electric Company. Return filed. Information dis- 
missed. 

Brooks Bank Note Company. Return filed. Information dis- 
missed. 

Burke Heel Company. Return filed. Information dismissed. 

Burnett Paint Company. Return filed. Information dismissed. 

C. A. Edgarton Manufacturing Company. Returned filed. In- 
formation dismissed. 

Central Plating Works, The. Return filed. Information dis- 
missed. 

Charles Perry Manufacturing Company. Return filed. Informa- 
tion dismissed. 

Chestnut Hill Real Estate Association of Marlborough. Return 
filed. Information dismissed. 

Childs & Kent Express Company. Return filed. Information 
dismissed, 

Claflin & Kimball (incorporated). Return filed. Information 
dismissed. 

Clark W. Bryan Company, The. Return filed. Information 
dismissed. 



110 ATTORNEY-GENERAL'S REPORT. [Jan. 

Coates Clipper Manufacturing Company. Return filed. Infor- 
mation dismissed. 

Columbia Rubber Company. Return filed. Information dis- 
missed. 

Co-operative Foundry Company. Pending. 

Damon Safe and Iron Works Company, The. Return filed. In- 
formation dismissed. 

Dean Whitney Elevator Company, The. Return filed. Informa- 
tion dismissed. 

Dorchester Safe Deposit and Trust Company. Enjoined. 

E. B. Tinkham Shoe Company. Return filed. Information dis- 
missed. 

E. M. Slayton Freezer Company. Return filed. Information 

dismissed. 
Eastman Clock Company. Previously enjoined by this department. 
Elastic Box Toe Co-operative Association, The. Return filed. 

Information dismissed. 

F. Knight & Son Corporation. Return filed. Information dis- 

missed. 

Fall River Electric Freight Railway Company. Return filed. 
Information dismissed. 

Fifield Tool Company. Return filed. Information dismissed. 

Fiske Wharf and Warehouse Company. Return filed. Informa- 
tion dismissed. 

Garrett-Ford Company. Return filed. Information dismissed. 

General Construction Company. Enjoined. 

Geo. P. Staples & Company (incorporated). Return filed. In- 
formation dismissed. 

Gilman Snow Guard Company. Return filed. Information dis- 
missed. 

Gloucester Tow Boat Company, The. Return filed. Information 
dismissed. 

Greyhound Bicycle Manufacturing Company. Return filed. In- 
formation dismissed. 

Hanover Water Company. Pending. 

Hampden Watch Company. Return filed. Information dis- 
missed. 

Havenner & Davis (incorporated). Return filed. Information 
dismissed. 

Haverhill Roller Toboggan Company. Pending. 

Healy & Lovell Company. Enjoined. 

Herdic Phaeton Company. Return filed. Information dismissed. 

Hygienic Closet Company. Enjoined. 

Interstate Law Company. Return filed. Information dismissed. 



1898.] PUBLIC DOCUMENT — No. 12. Ill 

Ionic Knitting Company. Return filed. Information dismissed. 

Isham's Waters of Life Company. Enjoined. 

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

Jewett Piano Company. Return filed. Information dismissed. 

Johnson Manufacturing Company. Return filed. Information 
dismissed. 

King Shoe Company, The. Return filed. Information dismissed. 

Knowles Loom Works. Return filed. Information dismissed. 

La Societe de Publicationes Francaises des Etats Unis. Enjoined. 

Lakeside Manufacturing Company. Return filed. Information 
dismissed. 

Lambeth Rope Company. Return filed. Information dismissed. 

Lamprey Boiler Furnace Mouth Protector Company. Return 
filed. Information dismissed. 

Lewis-Robinson Company, The. Return filed. Information dis- 
missed. 

Lowell Ice Company. Return filed. Information dismissed. 

London Harness and Saddle Company. Return filed. Informa- 
tion dismissed. 

Lynn Express Company. Previously enjoined by this depart- 
ment. 

Marshall Paper Company. Return filed. Information dismissed. 

Massachusetts Heating and Ventilating Company. Return filed. 
Information dismissed. 

Massachusetts Real Estate Company. Return filed. Information 
dismissed. 

Merrick & Kellogg Company. Return filed. Information dis- 
missed. 

Metropolitan Stock Exchange. Return filed. Information dis- 
missed. 

Middleby Oven Company. Return filed. Information dismissed. 

Milford Steam, Heat, Power and Refrigeration Company. Return 
filed. Information dismissed. 

Millbury Woolen Mills Company. Return filed. Information 
dismissed. 

Nathaniel Tufts Meter Company. Enjoined. 

Natick Gas and Electric Company. Return filed. Information 
dismissed. 

Natick Gas Light Company. Return filed. Information dismissed. 

Neponset Reservoir Company. Return filed. Information dis- 
missed. 

New Bedford Street Transportation Company. Return filed. In- 
formation dismissed. 

North Shore Lumber Company. Pending. 



112 ATTORNEY-GENERAL'S REPORT. [Jan. 

Oak Island Grove Company. Return filed. Information dis- 
missed. 

O'Neill Shoe Company. Enjoined. 

P. P. Emory Manufacturing Company. Return filed. Information 
dismissed. 

Pigeon Hill Co-operative Paving Company, The. Return filed. 
Information dismissed. 

Pilgrim Iron Foundry Company. Return filed. Information dis- 
missed. 

R. H. Long Shoe Manufacturing Company. Return filed. In- 
formation dismissed. 

Riley- Warring Company. Enjoined. 

Rogers-Young Company, The. Return filed. Information dis- 
missed. 

Sawyer Box Company. Pending. 

Sheldon Brothers Company. Return filed. Information dismissed. 

Slater Woolen Company. Return filed. Information dismissed. 

Springfield Machine Screw Company, The. Return filed. In- 
formation dismissed. 

Standard Brass Company. Return filed. Information dismissed. 

Standard Furniture Company, The. Return filed. Information 
dismissed. 

Standard Grip Testing Machine Company of New England. 
Return filed. Information dismissed. 

Standard Horse Shoe Company. Return filed. Information dis- 
missed. 

Stoneham Gas and Electric Company. Enjoined. 

Taunton Herald Company. Return filed. Information dismissed. 

Trench Lamp Company. Return filed. Information dismissed. 

Union Glue Company, The. Enjoined. 

Union Loan and Trust Company. Return filed. Information 
dismissed. 

University Press, John Wilson & Son (incorporated). Return 
filed. Information dismissed. 

Vikings Co-operative Store Company, The. Return filed. In- 
formation dismissed. 

Voorhees Electric Company. Return filed. Information dismissed. 

W. F. Adams Company. Return filed. Information dismissed. 

Warwick Cycle Manufacturing Company. Return filed. In- 
formation dismissed. 

Watertown Machine Company. Return filed. Information dis- 
missed. 

Whittier Shoe Company. Enjoined. 

Willey Company. Return filed. Information dismissed. 



1898.] PUBLIC DOCUMENT — No. 12. 113 

William H. King & Sons Company. Return filed. Information 

dismissed. 
William J. Dinsmore Corporation. Pending. 
Williamsburg Co-operative Creamery Association, The. Return 

filed. Information dismissed. 
Woburn Light, Heat and Power Company. Return filed. In- 
formation dismissed. 
Woodin Jewelry Company, The. Enjoined. 
Woodward & Brown Piano Company. Return filed. Information 

dismissed. 
Worcester & Marlborough Street Railway Company. Return 

filed. Information dismissed. 
Worcester Gas Radiator Company. Enjoined on suit for taxes. 
Worcester Reed Chair Company. Return filed. Information 

dismissed. 
Woronoco Park Association, The. Return filed. Information 

dismissed. 

2.. At the Relation of the Commissioner of Corporations. 

(a) For failure to file the certificate of condition required by 
section 54 of chapter 106 of the Public Statutes — 

N. W. Turner Company. Pending. 

Johnson Manufacturing Company. Certificate filed. Information 

dismissed. 
Parker, Sampson & Adams Co. Certificate filed. Information 

dismissed. 
New England Dredging Company. Certificate filed. Information 

dismissed. 
Geo. W. Prouty Company. Pending. 

(b) For failure to file statement required by St. 1891, c. 341, 
and St. 1894, c. 541 — 

Cape Ann Granite Company. Statement filed. Marked case off 
list. 

3. At the Relation of Private Persons. 

Attorney-GeDeral ex rel. Charles G. Rutter, mayor of Lawrence, 
v. Town of Methuen. Information for exceeding corporate 
powers. Hearing, and use of name granted. Petition amended 
to bill in equity. Bill dismissed. 

Attorney-General ex rel. Frank McAnally v. William C. Barrie. 
Information to try title of respondent to office of clerk of the 
overseers of the poor of the city of Lawrence. Hearing, and 
use of name granted. Information dismissed. 



114 ATTORNEY-GENERAL'S REPORT. [Jan. 

Attorney-General ex rel. Andrew B. Lattimore et al. v. William H. 
Clark et al. Information to reform abuse of public charity. 
Hearing, and use of name granted. Case argued before a 
single justice. Decree affirmed. See 167 Mass. 201. 

Attorney-General ex rel. F. Elliot Cabbot et al. v. Ellerton P. 
Whitney et al., water commissioners of Milton. Information 
in the nature of quo ivarranto. Hearing, and use of name 
granted. Case not entered in court. 

Attorney-General ex rel. Lowell Institution for Savings et al. v. 
Warren Sherburne. Information to prevent building on public 
way and square. Hearing, and use of name granted. Infor- 
mation dismissed. 

Attorney-General ex rel. Mathew H. dishing et al. v. Mathew H. 
Cushing. Information to appoint trustees under a public 
charity. Hearing, and use of name granted. This case was 
never entered in court. 

Attorney-General ex rel. Frank A. Gardner v. Town of Nantucket. 
Information to abate public nuisance. Hearing, and use of 
name granted. Information dismissed. 

Attorney-General ex rel. Inhabitants of Petersham v. Adonai 
Shomo. Information to forfeit charter for abuse of public 
charity. Hearing, and use of name granted. Information 
dismissed. See 167 Mass. 424. 

Attorney-General ex rel. Elvira Willis et al. v. Albert R. Wade 
et al. Information to try the title of the relators to certain 
offices in a corporation by the name of the Wales Home. 
Hearing, and use of name granted. Information dismissed. 

Attorney- General ex rel. Aldermen of Boston v. Brookline Gas 
Company. Information to abate public nuisance. Hearing, 
and use of name granted. Information dismissed. 

Attorney-General ex rel. Dorchester Historical Society and North 
Dorchester Improvement Society v. City of Boston. Infor- 
mation for abuse of public charity. Hearing, and use of name 
granted. Information dismissed. 

Attorney-General ex rel. v. Vineyard Grove Company. Petition 
for use of name in an information for an injunction restrain- 
ing the said company from an alleged interference with the 
rights of the public in a sea beach, and ordering the removal 
of structures causing such alleged interference. Hearing. 
Use of name granted. Pending. 

Attorney-General ex rel. Richard Bray v. Charles F. Varnum. 
Petition for use of name to compel the respondent to show by 
what warrant he claims to hold the office of superintendent of 
public buildings. Hearing, and use of name granted. Judg- 
ment of ouster. See 167 Mass. 477. 



1898.] PUBLIC DOCUMENT — No. 12. 115 

Attorney-General ex rel. Henry J. Conch v. Fred Patch. Informa- 
tion to try the title to the office of license commissioner of 
Lawrence. Hearing, and use of name granted. Hearing 
before Supreme Judicial Court. Information dismissed. 

Attorney-General ex rel. Charles A. Cheney et al. v. Nathaniel Dole 
et al. Information to try title to office of selectmen of West 
Newbury. Hearing, and use of name granted. Petition dis- 
missed. See 168 Mass. 562. 

Attorney-General ex rel. v. Charles Callahan. Information to try 
title to office of city solicitor of Lowell. Hearing, and use of 
name granted. Judgment of ouster. 

Attorney-General ex rel. v. Daniel J. Donahoe. Information to 
try title to office of city messenger of Lowell. Hearing, and 
use of name granted. Judgment of ouster. 

Attorney-General ex rel. v. James H. Cahill. Information to try 
title to the office of superintendent of streets of Lowell. 
Hearing, and use of name granted. Judgment of ouster. 

Attorney-General ex rel. John E. Curtis et als. v. John Drohan 
et als. Information in the nature of quo warranto to try title 
to membership in Democratic city committee of Boston. 
Hearing, and use of name granted. Decree. See Banker and 
Tradesman, Dec. 1, 1897. 

Attorney-General ex rel. Samuel E. Hull et als., Selectmen of 
Millbury, v. Washburn & Moen Manufacturing Company. 
Information in the nature of quo tuarranto to abate a nuisance. 
Hearing, and use of name granted. Pending. 

Attorney-General ex rel. Andrew J. Bartholomew et als., members 
of the school committee of Southbridge, v. John T. Clark, 
superintendent of schools. Information in the nature of quo 
warranto to try respondent's title to office of superintendent 
of schools. Hearing, and use of name granted. Pending. 

Attorney-General ex rel. George S. Winslow et als. v. New Eng- 
land Railroad Company. Information to compel the re- 
spondent to obey the order of the Railroad Commissioners, 
requiring it to abandon the two stations in Norwood and erect 
a new one. Hearing, and use of name granted. Pending. 

Attorney-General ex rel. Otis Freeman, Jr., v. John F. Colquhoun. 
Petition to the Supreme Judicial Court for use of name in an 
information in the nature of quo warranto to try defendant's 
title to the office of superintendent of the poor farm in Law- 
rence. Hearing, and use of name granted. Pending. 

Attorney-General v. Medway Water Company. Petition to the 
Supreme Judicial Court for use of name in an information to 
forfeit the defendant's charter for non-user and violation of 
statute. Hearing, and use of name granted. Pending. 



116 ATTORNEY-GENERAL'S REPORT. [Jan 



Applications refused and Otherwise disposed of. 

[For full text of opinions, giving reasons for refusal, see page 102.] 

Attorney-General ex rel. Daniel Warren et al. v. Selectmen of 
Wellesley. Information praying for mandamus to selectmen 
of Wellesley commanding them to remove registrar of voters. 
Hearing, and use of name denied. 

Attorney-General ex rel. George T. Woodward v. Richard Bray. 
Petition to the Supreme Judicial Court for use of name in an 
information in the nature of quo warranto to try defendant's 
title to the office of superintendent of public buildings in 
Lowell. Hearing, and use of name denied. 



1898.] PUBLIC DOCUMENT— No. 12. 117 



GEADE CKOSSHSTGS. 



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

Barnstable County. 

Bourne. Selectmen of Bourne, petitioners. Commissioners ap- 
pointed. Pending. 

Harwich. New York, New Haven & Hartford Railroad Company, 
petitioner. Pending. 

Harwich. Selectmen of Harwich, petitioners. Pending. 

Berkshire County. 

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

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

Williamstown, Town of, petitioner. Crossings over Fitchburg 
Railroad. Commissioners appointed. Pending. 

Richmond. Directors of Boston & Albany Railroad Company, 
petitioners. Final decree. 

Lee, Selectmen of town of, petitioners. New York, New Haven 
& Hartford Railroad. Decree. 

West Stockbridge. Directors of the Boston & Albany Railroad, 
petitioners. Commissioners appointed. Pending. 

Bristol County. 

Attle borough. Directors of Old Colony Railroad Company, peti- 
tioners. Commissioners appointed. Pending. 

New Bedford, Mayor and Aldermen of city of, petitioners. Old 
Colony Railroad and New York, New Haven & Hartford 
Railroad. Pending. 

Taunton, Mayor and Aldermen of city of, petitioners. Old 
Colony Railroad. Pending. 

Fall River, Mayor and Aldermen of city of, petitioners, New 
York, New Haven & Hartford Railroad Company. Pending. 



118 ATTORNEY-GEENRAL'S REPORT. [Jan. 

Somerset. New York, New Haven & Hartford Railroad, peti- 
tioner. Pending. 

Dighton. New York, New Haven & Hartford Railroad-, peti- 
tioner. Pending. 

Fall River. Mayor and Aldermen of city of Fall River, petition- 
ers. New York, New Haven & Hartford Railroad. Pending. 

Easton. Directors of the New York, New Haven & Hartford 
Railroad Company, petitioners. Pending. 

Essex County. 

Swampscott, Selectmen of, petitioners. Commissioners appointed. 

Hearing. Report partially confirmed. Pending. 
Manchester. Directors of the Boston & Maine Railroad Company, 

petitioners. Pending. 
Beverly. Directors of the Boston & Maine Railroad, petitioners. 

Pending. 

Franklin County. 

Montague. Selectmen of the town of Montague, petitioners. 
Central Vermont Railroad Company and Fitchburg Railroad 
Company. Pending. 

Hampden County. 

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

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

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

Palmer, Selectmen of, petitioners. Pending. 

Springfield, Mayor and Aldermen of, petitioners. Bay Street, 
Boston Road, Wilbraham Road, Alden and Hickory streets, 
crossing the New York & New England Railroad. Pending. 

Springfield, Pasco Road, Directors of the Boston & Albany Rail- 
road Company, petitioners. Pending. 

Springfield. Mayor and Aldermen of Springfield and directors of 
the Boston & Albany Railroad Company, petitioners. Pend- 
ing. 

Westfield. Selectmen of the town of Westfield, petitioners. Pend- 
ing. 



1898.] PUBLIC DOCUMENT — No. 12. 119 

Springfield. Mayor and Aldermen of Springfield, petitioners. 

Pending. 
East Longmeadow. Selectmen of East Longmeadow, petitioners. 

Pending. 

Hampshire County. 

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

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

Ware, Selectmen of, petitioners. Commissioners appointed. 
Decree. 

Ware. Selectmen of the town of Ware, petitioners. Commis- 
sioners appointed. Pending. 

Hatfield, Selectmen of Town of, petitioners, Connecticut River 
Railroad Company and Boston & Maine Railroad Company. 
Pending. 

Middlesex County. 

Lincoln. Fitchburg Railroad, petitioner. Pending. 

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

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

Natick. Directors of Boston & Albany Railroad Company, peti- 
tioners. Commissioners appointed. Decree. 

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

Somerville, Mayor and Aldermen of, petitioners. Pending. 

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

Natick. Directors of Boston & Albany Railroad, petitioners. 
Pending. 

Newton, Mayor and Aldermen of city of, petitioners. Boston & 
Albany Railroad. Argued before full court. Not yet de- 
cided. Pending. 

Waltham. Mayor and Aldermen of the city of Waltham, peti- 
tioners. Fitchburg Railroad Company. Pending. 



120 ATTORNEY-GENERAL'S REPORT. [Jan. 

Marlborough. Mayor and Aldermen of the city of Marlborough, 
petitioners. Fitchburg Railroad Company. Pending. 

Arlington. Selectmen of the town of Arlington, petitioners. 
Pending. 

Ayer. Selectmen of the town of Ayer and Directors of the Fitch- 
burg Railroad Company, petitioners. Pending. 

Cambridge. The Boston & Lowell Railroad, by its lessee the Bos- 
ton & Maine Railroad, petitioner. Pending. 

Concord. Selectmen of the town of Concord and Directors of the 
Fitchburg Railroad Company, petitioners. Pending. 

Norfolk County. 

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

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

Braintree. Directors of the New York, New Haven & Hartford 
Railroad Company, petitioners. Pending. 

Dedham. Selectmen of the town of Dedham, petitioners. Pend- 
ing. 

Stoughton. Directors of the New York, New Haven & Hartford 
Railroad Company, petitioners. Pending. 

Dedham, Selectmen of town of, petitioners. Boston & Albany 
Railroad. Pending. 

Braintree. Directors of New York, New Haven & Hartford Rail- 
road, petitioners. Pending. 

Dedham. New York, New Haven & Hartford Railroad Company, 
petitioner. Pending. 

Hyde Park. New York, New Haven & Hartford Railroad Com- 
pany, petitioner. Pending. 

Hyde Park. New England Railroad Company, petitioner. Pend- 
ing. (This case and the two preceding were consolidated.) 

Medway. Selectmen of the town of Medway, petitioners. Pending. 

Canton. Selectmen of the town of Canton, petitioners. Pending. 

Abington. Directors of the New York, New Haven & Hartford 
Railroad Company, petitioners. Pending. 

Plymouth County. 

Brockton, Mayor and Aldermen of, petitioners. Commissioners 

appointed. Pending. 
East Bridgewater. Directors of Old Colony Railroad Company, 

petitioners. Commissioners appointed. Pending. 



1898.] PUBLIC DOCUMENT— No. 12. 121 

Wareham. Directors of New York, New Haven & Hartford Rail- 
road, petitioners. Pending. 

Marshfield. Directors of New York, New Haven & Hartford Rail- 
road, petitioners. Pending. 

Hingham. New York, New Haven & Hartford Railroad Com- 
pany, petitioner. Pending. 

Middleborough. Selectmen of the town of Middleborough, peti- 
tioners. Pending. 

Scituate. Selectmen of Scituate, petitioners. Pending. 



Suffolk County. 

Boston. Directors of Old Colony Railroad Company, petitioners. 

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

Washington Street. Petition dismissed. 
Boston, Mayor and Aldermen of, petitioners. Crossing of Dudley 

Street, over New York & New England Railroad Company. 

Case stricken from docket. 
Boston, Mayor and Aldermen of, petitioners. Eleven petitions : 

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

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

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

Albany Railroad Company. Dismissed. 

3. Causeway and Travers streets, Boston, crossing the tracks 

of the Boston & Maine Railroad. Dismissed. 

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

ing the tracks of the Boston & Maine Railroad. Pending. 

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

Railroad Company. Pending. 

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

Charlestown, crossing the tracks of the Fitchburg Rail- 
road Company. Pending. 

7. Rutherford Avenue, Main Street and Chelsea Street, 

Charlestown, crossing the tracks of the Boston & Lowell 
Railroad Company. Pending. 

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

First Street, South Boston, crossing the tracks of the 
New York & New England Railroad Company. Dis- 
missed. 

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

New York & New England Railroad Company. Pending. 



122 ATTORNEY-GENERAL'S REPORT. [Jan. 

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

crossing the tracks of the Old Colony Railroad Company. 
Decree. 

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

Old Colony Railroad Company. Pending. 

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

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

Dorchester Avenue, Boston. Directors of the New York, New 
Haven & Hartford Railroad Company, petitioners. Pending. 

East Boston. Mayor and Aldermen of the city of Boston, peti- 
tioners. Boston & Maine Railroad Company, Boston & Al- 
bany Railroad Company, and Boston, Revere Beach & Lynn 
Railroad Company. Pending. 

Boston. Mayor and Aldermen of Boston, petitioners. Pending. 

Boston. Mayor and Aldermen of Boston, petitioners, New Eng- 
land Railroad Company. Pending. 

Boston. Mayor and Aldermen of Boston, petitioners. Pending. 



Worcester County, 

Athol, Selectmen of, petitioners. Commissioners appointed. 
Pending. 

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

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

Clinton, Selectmen of, petitioners. Pending. 

Templeton, Selectmen of, petitioners. Pending. 

Westborough. Old Colony Railroad Company, petitioner. Pend- 
ing. 

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

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

Fitchburg, Mayor and Aldermen of, petitioners. Pending. 

Leicester. Directors of Boston & Albany Railroad Company, 
petitioners. Pending. 

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



1898.] PUBLIC DOCUMENT — No. 12. 123 

Worcester. Directors of Boston & Albany Railroad Company, 
petitioners. Pending. 

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

Millbury, Selectmen of, petitioners. Pending. 

Uxbridge. Directors of New York, New Haven & Hartford Rail- 
road Company, as lessee of the Providence and Worcester 
Railroad Company, petitioners. Pending. 

Worcester, Mayor and Aldermen of, petitioners. Hamilton and 
Millbrook streets. Pending. 

Warren. Directors of Boston & Albany Railroad, petitioners. 
Pending. 

Holden. Selectmen of Holden, petitioners. Fitchburg Railroad 
Company. Pending. 

Westborough. Selectmen of Westborough and Directors of Bos- 
ton & Albany Railroad Company, petitioners. (In this case 
a controversy arose between the town and the Commonwealth 
as to the respective amounts to be paid in the construction of 
the proposed alterations. The case was argued before the 
commissioners, and a decision rendered in favor of the claim 
made by the Commonwealth.) Argued before full court. Re- 
port of commissioners confirmed. Pending. 

Southborough. Directors of the New York, New Haven & Hart- 
ford Railroad Company, petitioners. Pending. 

Blackstone. Selectmen of Blackstone, petitioners. Pending. 

Gardner. Selectmen of the town of Gardner, petitioners. Pend- 
ing. 

Leominster. Selectmen of the town of Leominster, petitioners. 
Pending. 

Millbury. Selectmen of the town of Millbury, petitioners. Pend- 
ing. 

Sutton. Selectmen of the town of Sutton, petitioners. Pend- 
ing. 

Northbridge. Selectmen of Northbridge and Uxbridge, petition- 
ers. Pending. 

Gardner. Selectmen of Gardner, petitioners. Commissioners 
appointed. Pending. 

Auburn. Selectmen of Auburn, petitioners. Pending. 

Southborough. Selectmen of Southborough and Directors of New 
York, New Haven & Hartford Railroad Company, petitioners. 
Pending. 

The following corporations having made voluntary application to 
the supreme judicial court for dissolution, and having given the 
Attorney-General due notice of that petition, and the Tax Com- 



124 ATTORNEY-GENERAL'S REPORT. [Jan. 

missioner herein certified that they were not indebted to the 
Commonwealth for taxes, the Attorney-General waived the right 
to be heard : — 

Adams & Odell (incorporated). 

Bradford Firemen's Relief Association, The. 

Bigelow Lithographic Company. 

Butchers' Rendering Association (co-operative) . 

Boston Flint Paper Company, The. 

B. W. Fellows Machine Company. 

Casino Art Company. 

Crompton Loom Works. 

Crocker Harness Company. 

D. Webster King Glue Company. 

Danvers Co-operative Union Society. 

Davis Coast Wrecking Corporation. 

Eliot Insurance Company. 

F. M. Whiting Company. 

Fall River & New Bedford Street Railway Company. 

Fall River & Providence Steamboat Company. 

Foster, Langdon & Co. (incorporated). 

Greenfield Power Company. 

Holyoke Hydrant and Iron Works. 

Hub Webbing Company. 

Hurley Shoe Company. 

India Drug Company. 

J. C. Lockett Crimping Machine Company. 

Jamaica Pond Ice Company. 

Knowles Loom Works. 

Lexington Building Association. 

Lowell Iron Company. 

Manufacturer's Gas Light Company. 

Merchants Woollen Company. 

Nahant Steamboat Express Company. 

New York Shoe Manufacturing Company, Corporation. 

Quincy Water Company. 

Royal Manufacturing Company, The. 

Southbridge, Sturbriclge & Brookfield Railroad Company. 

Standard Thermometer Company. 

Sutton Manufacturing Company. 

Upton Felting Mills. 

Waverly Magazine Company. 

Westport Point Hotel Company. 

Worcester Dry Goods Company. 



1898.] PUBLIC DOCUMENT — No. 12. 125 

The following corporations, reported to this department by the 
Tax Commissioner for delinquency in making their tax returns 
under Pub. Sts., c. 13, § 38, have been compelled, without the 
necessity of a suit at law, to comply with the statute : — 

The A. L. Blackmer (incorporated). 

A. W. Brine Construction Company. 

American Bedstead Company. 

Atlantic Telegraph Company of Massachusetts. 

Ball Bearing Company. 

Berlin Falls Fibre Company, The. 

Boston and Bay State Die Company. 

Boston Dental Manufacturing Company. 

Brophy Brothers Shoe Company. 

C. B. Cook Laundry Company. 

Cambridge Co-operative Society. 

Campbell Chemical Company. 

Cape Ann Printing Company. 

Cascade Power Company, The. 

Casino Art Company, The. 

Charles S. Brown Company. 

Clicquot Club Bottling and Extract Company. 

Co-operative Printing Society. 

Daily News Company, The. 

De L. Sheplie Company. 

Dorchester Building Material Company. 

E. H. Saxton Company. 

E. Stebbins Manufacturing Company. 
East Douglass Co-operative Association. 
Edwards Grain Company. 

Empire Laundry Machine Company. 
Essex Leather Company. 

F. E. Young Company, The. 
Fairfield Ice Company, The. 
Faulkner Manufacturing Company. 
Framingham Electric Company. 
George F. Hewett Company. 
Globe Yarn Mills, The. 

Greylock Co-operative Creamery Association. 

Haverhill Ice Company, The. 

Haverhill Milling Company, The. 

Hoosac Tunnel & Wilmington Railroad Company. 

Hopkinton Lithia Spring Water Company, The. 

Horace Partridge Company, The. 



126 ATTORNEY-GENERAL'S REPORT. [Jan, 

Horn and Supply Company, The. 

Howe's Mill Lumber Company. 

Hoxie Mineral Soap Corporation. 

Hyde Park Co-operative Association. 

J. H. Conant Company. 

James Hunter Machine Company, The. 

James Russell Boiler Works Company. 

Jewett Lumber Company. 

John F. Fowkes Manufacturing Company. 

L. H. Beals & Son Company, The. 

M. E. Kanaly Company, The. 

Marlborough Gas Light Company. 

Merrimac Paper Company. 

Monson Co-operative Creamery Association. 

National Plaster Company, The. 

North Dighton Cotton Company. 

Oak Grove Creamery Company, The. 

Old Corner Drug Store, The. 

Parmenter Manufacturing Company, The. 

Peoples' Lumber and Manufacturing Company. 

Pittsfield Coal Company. 

Pittsfield Electric Company. 

Plymouth Shoe Company. 

Point of Pines Company. 

Review Publishing Company. 

Rockland Hotel Company, The. 

Rockport Gas Company. 

Shady Hill Nursery Company. 

Standard Crockery and House Furnishing Company, The. 

Taunton Evening News. 

Thomas G. Plant Company. 

Tyler & Moulton Shoe Company. 

Union Desk Company. 

United Manufacturing Company. 

W. D. Wilmarth & Co. Corporation. 

Wade & Reed Company. 

Wakefield Water Company. 

Walnut Publishing Company. 

Western Union Telegraph Company. 

Weymouth Seam-face Granite Company. 

Wire Goods Company, The 

Worcester Arcade Corporation. 

Worcester Envelope Company. 

Ziegler Electric Company. 



1898.] PUBLIC DOCUMENT — No. 12. 127 

The following corporations, reported to this department by the 
Commissioner of Corporations for delinquency in filing the certi- 
ficate of condition required by Pub. Sts., c. 106, § 54, have been 
compelled, without the L necessity of suit, to comply with the 
statute : — 

Paul Askanasy Company. 

Watertown Water Supply Company. 

Boston Blower Company. 

Natick Gas and Electric Company. 

Methyl Dental Company. 

Milton Light^and Power Company. 



128 ATTORNEY-GENERAL'S REPORT. [Jan. 



CASES ARISING UNDER THE COLLAT- 
ERAL INHERITANCE TAX ACT. 



[Statutes 1891, Chapter 425.] 

Joseph Stone, executor of the will of Phineas J. Stone, petitioner, 
v. the Treasurer of the Commonwealth et al. Petition to the 
probate court of Suffolk County. Answer. Decree. 

Spencer W. Richardson, executor of the will of Mary F. Swift, 
petitioner, v. the Treasurer of the Commonwealth et al. Peti- 
tion to the probate court of Norfolk County. Decree. 

Lewis S. Dabney, executor of the will of Theodore Chase, peti- 
tioner, v. the Treasurer of the Commonwealth. Petition to 
the probate court of Suffolk County. Decree. 

Sabin P. Sanger et a?., executors of the will of Samuel Gould, 
petitioners, v. the Treasurer of the Commonwealth et al. 
Petition to the probate court of Suffolk County. Answer. 
Decree. 

Eliza C. Cleaveland et al., executors of the will of Sarah P. 
Cleaveland, petitioners, v. the Treasurer of the Common- 
wealth. Petition to the probate court of Suffolk County. 
Answer of the Attorney-Generalclaiming tax. Decree. 

Charles A. Merriam, executor of the will of Sarah N. Trowbridge, 
petitioner, v. the Treasurer of the Commonwealth. Petition 
to the probate court of Suffolk County. Pending. 

James H. Callahan, executor of the will of James A. Winslow, 
petitioner. Petition to the probate court of Suffolk County. 
Answer filed. Decree. 

Mary E. Wilson et als., executors of the will of Sally A. Dwight, 
petitioners, v. the Treasurer of the Commonwealth. Petition to 
the probate court of Suffolk County. Answer filed. Pending. 

Lorenzo White, executor of the will of Charles F. Stoddard, peti- 
tioner, v. the Treasurer of the Commonwealth. Petition to 
the probate court of Suffolk County. Service accepted. 
Settled by payment of tax. 

James H. Frothingham, executor of the will of Joseph Frothing- 
ham, petitioner, v. the Treasurer of the Commonwealth. 
Petition to the probate court of Essex county. Answer filed. 
Decree. Appeal taken. Pending. 



1898.] PUBLIC DOCUMENT -No. 12. 129 

J. J. Sullivan, executor of the will of Catherine A. Kelly, peti- 
tioner, v. the Treasurer of the Commonwealth. Petition to 
the probate court of Middlesex County. Answer filed. 
Waived right to be heard. 
William H. Spooner, executor of the will of Mary E. Curtis, peti- 
tioner, v. E. P. Shaw, Treasurer of the Commonwealth. 
Petition to the probate court of Suffolk County. Right to 
hearing waived. 
Henry B. Terry, executor of the will of Henry C. Stark, v. E. P. 
Shaw, Treasurer of the Commonwealth. Petition to the 
probate court of Norfolk County. Right to hearing waived. 
Eugene V. R. Thayer, one of the executors of the will of Cornelia 
V. R. Thayer, v. E. P. Shaw, Treasurer of the Common- 
wealth. Petition to the probate court of Worcester County. 
Answer filed. Decree. 
Edward C. Rogers, executor of the will of Joseph L. Shipley, v. 
E. P. Shaw, Treasurer of the Commonwealth. Petition to the 
probate court of Hampden County. Answer filed. Decree. 
Frederick C. Abbe, executor of the will of Emma C. Adams, v. 
E. P. Shaw, Treasurer of the Commonwealth. Petition to the 
probate court of Hampden County. Answer filed. Pending. 
James S. Greves, executor of the will of Mary T. Porter, v. E. P. 
Shaw, Treasurer of the Commonwealth. Petition to the 
probate court of Bristol County. Answer filed. Decree. 
Nathaniel H. Emmons et aZ., executors of the will of George W. 
Wales, v. E. P. Shaw, Treasurer of the Commonwealth. Pe- 
tition to the probate court of Suffolk County. Answer filed. 
Case submitted on briefs. Decree. 
James Murphy, executor of the will of Thomas Leland, v. E. P. 
Shaw, Treasurer of the Commonwealth, et al. Petition to the 
probate court of Middlesex County. Answ r er filed. Decree. 
Sophia A. Merrill, executrix of the will of J. L. Merrill, v. E. P. 
Shaw, Treasurer of the Commonwealth, et al. Petition to the 
probate court of Essex County. Answ T er filed. Decree. 
William O'Brien, legatee and devisee under will of Mary E. Flynn, 
petitioner, v. E. P. Shaw, Treasurer of the Commonwealth. 
Petition to the probate court of Middlesex County. Hearing 
waived. 
George W. Brown, executor of the will of William H. Brown, v. 
E. P. Shaw, Treasurer of the Commonwealth, et al. Petition 
to the probate court of Essex County. Answer filed. Pend- 
ing. 
Francis E. Bennett, legatee under the will of George W. Coffin, 
v. E. P. Shaw, Treasurer of the Commonwealth, et al. Peti- 
tion to the probate court of Suffolk County. Hearing waived. 



130 ATTORNEY-GENERAL'S REPORT. [Jan. 

Frank O. Woods, executor of the will of Hanna M. Rounds, v. 
E. P. Shaw, Treasurer of the Commonwealth. Petition to 
the probate court of Essex County. Hearing. Decree. 

Juliet Porter, residuary devisee under will of Julia A. Parker, v. 
E. P. Shaw, Treasurer of the Commonwealth. Petition to 
the probate court of Suffolk County. Right to hearing waived. 

Burnside E. Sawyer et aL, heirs of Sylvanus Sawyer, petitioners, 
v. E. P. Shaw, Treasurer of the Commonwealth. Petition to 
the probate court of Worcester County. Hearing waived. 

Francis Bartlett, executor of the will of Louisa C. Palfrey, v. E. 
P. Shaw, Treasurer of the Commonwealth. Petition to the 
probate court of Suffolk County. Hearing waived. 

Samuel P. Hadley et al., executors of the will of Lucinda R. Par- 
ker, v. E. P. Shaw, Treasurer of the Commonwealth. Peti- 
tion to the probate court of Middlesex County. Answer 
filed. Pending. 

Thomas C. Greene, executor of the will of Charles W. Parsons, v. 
E. P. Shaw, Treasurer of the Commonwealth. Petition to 
the probate court of Suffolk County. Appearance entered. 
Decree. 

Walter P. Winsor, executor of the will of Mary B. Tolman, v. E. 
P. Shaw, Treasurer of the Commonwealth. Petition to the 
probate court of Bristol County. Appearance entered. 
Decree. 

Harriet E. Lillie v. E. P. Shaw, Treasurer of the Commonwealth. 
Petition to the probate court of Suffolk County. Hearing- 
waived. 

A. McL. Goodspeed, executor of the estate of Frank W. Pierce, 
v. E. P. Shaw, Treasurer of the Commonwealth. Petition to 
the probate court of Dukes County. Answer filed. Decree. 

Congregational Home Missionary Society v. E. P. Shaw, Treas- 
urer of the Commonwealth. Petition to the probate court 
of Middlesex County. Service accepted and appraisers ap- 
pointed. Pending. 

Estate of Martha H. Skinner. Petition to the probate court for 
Bristol County for suspension of collateral inheritance tax. 
Consented to allowance of petition. 

Francis Norton, executor and trustee under the will of James A. 
Baldwin, v. E. P. Shaw, Treasurer. Petition to the probate 
court for Hampden County for instructions. Appearance 
entered. Pending. 

William Minot et al., executors of the will of Chas. W. Kennard, 
v. E. P. Shaw, Treasurer. Petition to the probate court for 
Suffolk County for instructions. Decree. 



1898.] PUBLIC DOCUMENT— No. 12. 131 

Sarah A. McFarland et als. v. E. P. Shaw, Treasurer. Petition to 
the probate court for Suffolk County for appointment of ap- 
praisers to reappraise estate of Mary Adams. Waived right 
to be heard. 

Sarah A. McFarland et als. v. E. P. Shaw, Treasurer. Petition to 
the probate court for Suffolk County for appointment of ap- 
praisers to reappraise the estate of George A. Adams. 
Waived right to be heard. 

Francis V. Balch et al., trustees under the will of Belinda L. Ran- 
dall, v. Attorney-General et al. Petition to the probate court 
for Suffolk County for instructions. Appearance entered. 
Answer filed. Pending. 

Odiorne Swain, executor of the will of Frederick H. Odiorne, 
petitioner. Petition to the probate court for Middlesex 
County for instructions. Appearance entered. Answer filed. 
Pending. 

John B. Brown, executor of the will of Mary M. Abbott, v. E. P. 
Shaw, Treasurer. Petition for extention of time under St. 
1891, c. 425. Hearing. Pending. 

Uriel H. Crocker, trustee under a deed of trust of Alfred Ladd 
et al., v. E. P. Shaw, Treasurer. Petition for instructions as 
to amount of collateral inheritance tax. Answer filed. Pend- 
ing. 

Mary E. Stoddard, executrix of the will of Austin P. Day, v. E. 
P. Shaw, Treasurer of the Commonwealth. Petition to the 
probate court for Suffolk County. Appearance entered. 
Pending. 

Caroline B. Warren et als., legatees of Elizabeth Torrey, v. E. P. 
Shaw, Treasurer of the Commonwealth. Petition to the 
probate court for Middlesex County for reappraisal. Pend- 
ing. 

Louis P. Fisher, interested in the succession to the estate of 
Maria L. Hawes, v. E. P. Shaw, Treasurer of the Common- 
wealth. Petition to the probate court for Suffolk County for 
appraisal to determine the amount of collateral inheritance 
tax. Attorney-General waived right to be heard. 

Francis P. Southwick, administrator of the estate of Amos W. 
Southwick, petitioner. Petition to the probate court for 
Suffolk County to abate interest on collateral inheritance tax. 
Appearance entered. Decree. 

Ella J. Crittenden, petitioner, v. E. P. Shaw, Treasurer of the 
Commonwealth. Petition to the probate court for Hampden 
County for reappraisal. Attorney-General waived right to be 
heard. 



132 ATTORNEY-GENERALS REPORT. [Jan. 

Fisher Ames, executor of the will of Mary Ames Armstrong, v. 
Treasurer of the Commonwealth. Petition to the probate 
court for Middlesex County to determine collateral inheri- 
tance tax and extend time for payment. Waived right to be 
heard. 
Charles M. Cumston, executor of the will of John S. H. Fogg, v. 
Treasurer of the Commonwealth. Petition to the probate 
court for Middlesex County. Appearance entered. Pending. 
Charles H. Chapman, executor of the will of Walter Parkhurst, v. 
Treasurer of the Commonwealth. Petition to the probate 
court of Middlesex County for reappraisal. Pending. 
Charles M. Cumston, executor of the estate of John S. H. Fogg, 
v. E. P. Shaw, Treasurer of the Commonwealth. Petition to 
the probate court for Suffolk County. Attorney-General 
waived right to be heard. 
George W. Lord, interested in the succession to the estate of 
William C. Lord, v. E. P. Shaw, Treasurer of the Common- 
wealth. Petition to the probate court for Suffolk County for 
reappraisal. Attorney-General waived right to be heard. 
John Kingsbury, executor and devisee under the will of Lauren 
Kingsbury, v. E. P. Shaw, Treasurer of the Commonwealth. 
Petition to the probate court for Norfolk County. Attorney- 
General waived right to be heard. 
Joseph H. White et al., trustees under the will of Ralph Hunt- 
ingdon, v. E. P. Shaw, Treasurer of the Commouwealth. 
Petition to the probate court for Suffolk County. Pending. 
Daisy E. Thurston et al., devisees under the will of John Spink, 
v. E. P. Shaw, Treasurer of the Commonwealth. Petition to 
the probate court for Bristol County for reappraisal. Pend- 
ing. 
Mary G. Fogg, interested in the succession to the estate of John 
S. H. Fogg, v. E. P. Shaw, Treasurer of the Commonwealth. 
Petition to the probate court for Suffolk County for re- 
appraisal. Attorney-General waived right to be heard. 
Frank W. Bryant et al., executors of the will of Nathan E. 
Bryant, v. E. P. Shaw, Treasurer of the Commonwealth. 
Petition to the probate court for Middlesex County for re- 
mittance of interest on collateral inheritance tax. Attorney- 
General waived right to be heard. 
Luther Adams, one of the executors of the will of Stephen C. 
Williams, v. E. P. Shaw, Treasurer of the Commonwealth 
et al. Petition to the probate court of Essex County. Ap- 
pearance entered. Pending. 



1898.] PUBLIC DOCUMENT — No. 12. 133 

William Warren et al., executors of the will of Elizabeth Torrey, 
v. E. P. Shaw, Treasurer of the Commonwealth. Petition to 
the probate court of Middlesex County for acceptance of re- 
turn of appraisers and to fix their fees. Order of notice 
waived and bill of appraisers approved. 

Franklin T. Hammond, administrator with the will annexed of 
Mary C. Ames, v. E. P. Shaw, Treasurer of the Common- 
wealth, et als. Petition to the probate court of Middlesex 
County. Appearance entered. Pending. 

George Ames, petitioner. Petition to the probate court of Mid- 
dlesex County for reappraisal. Pending. 

Arthur Lincoln, executor and trustee under the will of Sarah J. 
Fearing, v. E. P. Shaw, Treasurer of the Commonwealth. 
Petition to the probate court of Plymouth County for an ex- 
tension of time for payment of collateral inheritance tax. 
Waived right to be heard. 



134 ATTORNEY-GENERAL'S REPORT. [Jan. 



PUBLIC CHARITABLE TRUSTS. 



Niles, Thomas, et al., v. Attorney-General et al. Decree. 

John Oscar Teele, trustee, v. Bishop of Derry et al. Bill in equity 
in supreme judicial court of Essex. Answer filed. Decree. 

Edward N. Fenno et al., executors of the will of J. Brooks Fenno, 
v. the Attorney-General et al. Bill in equity in the supreme 
judicial court for Suffolk County to transfer a trust fund. 
Decree. 

Joseph B. F. Osgood et al., executors of the will of Caroline A. 
Lord, petitioners, v. the Attorney-General et al. Petition to 
the probate court of Essex County upon the declination of the 
trustee to carry out a trust. Pending. 

St. Walston Society v. Attorney-General et al. Petition to the 
supreme judicial court of Worcester County to reconvey land. 
Answer. Pending. 

Essex Agricultural Society v. Massachusetts General Hospital 
Corporation and the Attorney-General. Petition to the 
supreme judicial court of Essex County to sell real estate 
and to apply the doctrine of cypres. Service accepted. 
Pending. 

John K. Warren, petitioner, v. Attorney-General et als. Petition 
to the probate court of Worcester County to convey real 
estate to carry out a public charitable trust. Service ac- 
cepted. Decree. 

Charles H. Goulding et als., School Committee of Peabody, peti- 
tioners. Bill in equity in the supreme judicial court of Essex 
County, praying for a decree declaring a certain fund a public 
charitable gift. Service accepted. Pending. 

George White and Francis C. Welch, trustees of the will of Ann 
White Vose, v. Attorney-General et al. Bill in equity in the 
supreme judicial court of Suffolk County for instructions in 
carrying out a public charitable trust. Answer filed. Attor- 
ney-General waived right to be heard. 

William B. Bacon et als. v. Augustus Hemenway, 2d, fourteen 
others and the Attorney-General. Petition to the supreme 
judicial court of Suffolk County for a decree determining to 
whom certain money in the hands of trustees under the will of 
Augustus Hemenway should be distributed. Decree. 



1898.] PUBLIC DOCUMENT — No. 12. 135 

Patrick A. Collins, trustee under the will of Mary Kelly, v. 
Thomas McCabe and John J. Williams. Petition to the pro- 
bate court of Suffolk County for a decree declaring trust ter- 
minated and ordering payment. Attorney-General waived 
right to be heard. 

Jeremiah J. Sullivan, executor of the will of Catherine A. Kelly 
and as trustee thereunder, petitioner. Petition to the probate 
court for Middlesex County for instructions in carrying out a 
public charitable trust. Attorney-General waived the right 
to be heard. 

Isabelle C. Devine, petitioner. Petition to the probate court for 
Hampden County for confirmation of license to sell estate for 
payment of debts. Appearance entered. Decree. 

John C. Ropes et al., trustees under the will of Charles H. Joy, v. 
C Redington Joy et als. Petition to the probate court for 
Middlesex County for construction of a will and for instruc- 
tions as to the disposition of a portion of a trust fund. 
Attorney-General waived right to be heard. 

Attorney-General, petitioner. Petition to the probate court for 
Suffolk County for the appointment of trustees under the will 
of Benjamin Franklin. Appearance entered. Hearing. 
Henry L. Higginson, Francis C. Welch, A. Shuman, Chas. 
T. Gallagher, Rev. Chas. W. Duane, Stopford Brooke and 
Alexander K. McLennan appointed trustees. Pending. 

Trustees of Tufts College v. City of Boston et ah. Petition to 
the supreme judicial court for Suffolk County to obtain con- 
sent of court for selling real estate devised by will of Silvanus 
Packard. Appearance entered. Answer filed. Pending. 

George O. Sawyer, petitioner. Petition to the probate court for 
Norfolk County to be appointed trustee under the will of 
J. Sullivan Warren. Attorney-General waived right to be 
heard. 

Boston Training School for Nurses v. Massachusetts General Hos- 
pital and Attorney-General. Petition to the supreme judicial 
court for Suffolk County to obtain leave to transfer a trust 
fund. Attorney-General waived right to be heard. 

American Bible Society, petitioner. Petition to the supreme judi- 
cial court for Suffolk County concerning a public charitable 
trust. Attorney-General waived the right to be heard. 

M. B. Warner, administrator de bonis cum testamento annexo of 
the estate of Sophia Burgess, v. Hosea M. Knowlton, Attor- 
ney-General, et als. Petition to the probate court for Berk- 
shire County for construction of will. Appearance entered. 
Attorney-General waived right to be heard. 



136 ATTORNEY-GENERAL'S REPORT. [Jan. 

Albert G. Brock, executor of the will of Washington W. Chase, 
v. Attorney-General et als. Petition to the probate court for 
Nantucket County for construction of the will of Washington 
W. Chase. Appearance entered. Decree. 

Alfred C. Webster et al., trustees under the will of Moses G. 
Wilson, v. Attorney-General et als. Petition to the probate 
court for Essex County for instructions as to payment of trust 
fund. Attorney-General waived right to be heard. 

Gorham Rogers et als., trustees of the Fellows Athenaeum et als., 
v. Attorney-General et al. Petition to the supreme judicial 
court for Suffolk County for transfer of trust property and 
dissolution of corporation. Appearance entered. Answer 
filed. Decree. 

In re estate of Horace Smith. Petition to the probate court for 
Hampden County for allowance of first and second accounts 
of Henry S. Lee et als., trustees under the will of Horace 
Smith. Attorney-General waived right to be heard. 

Evangelical Baptist Benevolent and Missionary Society v. the 
Attorney-General. Petition to the supreme judicial court for 
Suffolk County for interpretation of the terms of the will of 
Jane D. Royce. Attorney-General waived right to be heard. 

Charles F. Sawtell, administrator, v. the Board of Ministerial Aid 
et al. Petition to the superior court for Worcester County 
for instructions. Pending. 

Tufts College Trustees v. City of Boston. Petition to the supreme 
judicial court for Suffolk County to sell real estate devised 
under the will of Silvanus Packard. Appearance entered. 
Pending. 

St. Thomas School Society, petitioner. Petition to the probate 
court for Suffolk County for leave to mortgage real estate on 
St. Thomas Street, Roxbury. Attorney-General waived right 
to be heard. 

President and Fellows of Harvard College v. Attorney-General. 
Petition to the supreme judicial court for Suffolk County for 
permission to make certain improvements on land left to the 
college under the will of Benjamin Buzzey. Attorney-Gen- 
eral waived right to be heard. 

Augustus P. Loring and Wm. A. Hayes, trustees under indenture 
of trust made by Francis B. Hayes, v. Augustus P. Loring, 
executor of the will of F. B. Hayes, Massachusetts Horticult- 
ural Society, and Attorney-General. Petition to the supreme 
judicial court for Suffolk County. Case argued for instruc- 
tions concerning public charity. Decree. 



1898.] PUBLIC DOCUMENT— No. 12. 137 

Hiram V. Gould et als., petitioners. Petition to the probate court 
for Suffolk County to be appointed trustees for the Society of 
Friends in Boston. Attorney-General waived right to be 
heard. 

Charles H. Barrows and James EL Pynchon, executors of the will 
of Phineas P. Mason, v. Treasurer of the Commonwealth. 
Petition to the probate court for Hampden County to authorize 
conveyance to a charitable use. Attorney-General waived 
right to be heard. 

Estate of John H. Dix. Petition of William A. Jeffries to the 
probate court for Suffolk County for the appointment of 
William A. Jeffries, trustee of public charity fund estab- 
lished by the will of John H. Dix, in place of John Jeffries, 
deceased. Attorney-General waived right to be heard. 

Augustus P. Loring, executor, v. Harold Hayes, appellant. Ap- 
peal from allowance of a will of Francis B. Hayes. Attorney- 
General assented to settlement. 

P. F. Hall and J. A. Green, executors of the will of Thomas 
Downing, petitioners. Petition to the probate court for Mid- 
dlesex County for construction of a will. Attorney-General 
waived right to be heard. 



The following cases have been brought for alleged land damages 
incurred in the alteration of grade crossings. The Commonwealth, 
being obliged under the statutes to pay at least twenty-five per 
cent, of the expenses incurred in the alteration of all grade cross- 
ings, has in all cases been made a party thereto. 

Isabel H. Waters et al. v. Town of Millbury. Superior court, 

Worcester County. 
Patrick Brick et al. v. City of Northampton et als. Superior court, 

Hampshire County. 
Mar} 7 Casey v. City of Northampton et als. Superior court, 

Hampshire County. 
Mary Simpson v. City of Northampton et als. Superior court, 

Hampshire County. 
F. P. Ellwell v. City of Northampton et als. Superior court, 

Hampshire County. 
Elizabeth N. Thompson v. City of Northampton et als. Superior 

court, Hampshire County. 
Melvin L. Graves et al. v. City of Northampton et als. Superior 

court, Hampshire County. 



138 ATTORNEY-GENERAL'S REPORT. [Jan. 

Sarah Delano v. City of Northampton et als. Superior court, 

Hampshire County. 
John A. Sullivan v. City of Northampton et als. Superior court, 

Hampshire County. 
Charles S. Crouch v. City of Northampton et als. Superior court, 

Hampshire County. 
Dwight A. Horton v. City of Northampton et als. Superior court, 

Hampshire County. 
John A. Partridge v. City of Northampton et als. Superior court, 

Hampshire County. 
William M. Trow v. City of Northampton et als. Superior court, 

Hampshire County. 
Charles P. Damon v. City of Northampton et als. Superior court, 

Hampshire County. 
William H. Clapp et al. v. City of Northampton et als. Superior 

court, Hampshire County. 
William H. Clapp, trustee, v. City of Northampton et als. Superior 

court, Hampshire County. 
John A. Sullivan et al. v. City of Northampton et als. Superior 

court, Hampshire County. 
John A. Kearns v. Connecticut River Railroad et als. Superior 

court, Hampshire County. 
Arthur C. Guilford v. New Haven & Northampton Company et als. 

Superior court, Hampshire County. 
Lizzie E. Orcutt et al. v. New Haven & Northampton Company. 

Superior court, Hampshire County. 
Martha H. Shuman v. City of Northampton et als. Superior 

court, Hampshire County. 
Maria Graves v. City of Northampton et als. Superior court, 

Hampshire County. 
Lovina S. Harlow v. City of Northampton et als. Superior court, 

Hampshire County. 
William F. Kingsley v. City of Northampton et als. Superior 

court, Hampshire County. 
John Casey v. City of Northampton et als. Superior court, Hamp- 
shire County. 
Timothy Sullivan v. City of Northampton et als. Superior court, 

Hampshire County. 
John Sullivan v. City of Northampton et als. Superior court, 

Hampshire County. 
Timothy Sullivan et al. v. City of Northampton et als. Superior 

court, Hampshire County. 
Michael J. Reardon v. City of Northampton et als. Superior court, 

Hampshire County. 



1898.] PUBLIC DOCUMENT — No. 12. 139 

Patrick Sullivan v. City of Northampton et als. Superior court, 

Hampshire County. 
William J. Hall v. City of Northampton et als. Superior court, 

Hampshire County. 
Catherine Keating v. City of Northampton et als. Superior court, 

Hampshire County. 
Sophia C. Pittsinger v. City of Northampton et als. Superior 

court, Hampshire County. 
Robert Mousey v. City of Northampton et als. Superior court, 

Hampshire County. 
Addie Goodchild v. City of Northampton et als. Superior court, 

Hampshire County. 
Patrick McCarthy v. Boston & Maine Railroad et als. Superior 

court, Hampshire County. 
Margaret Harris v. City of Northampton et als. Superior court, 

Hampshire County. 
Martha E. Dickerson v. Boston & Maine Railroad et als. Superior 

court, Hampshire County. 
Thomas D. Beaven v. City of Northampton et als. Superior 

court, Hampshire County. 
Martin Finn et al. v. City of Northampton et als. Superior court, 

Hampshire County. 
John Rourke et al. v. Boston & Maine Railroad et als. Superior 

court, Hampshire County. 
John A. Keaines v. Boston & Maine Railroad et al. Superior 

court, Hampshire County. 
Daniel Finn v. Boston & Maine Railroad et als. Superior court, 

Hampshire County. 
Elizabeth C. Guilford v. City of Northampton et als. Superior 

court, Hampshire County. 
James M. Meade v. City of Northampton et als. Superior court, 

Hampshire County. 
Timothy Sullivan v. City of Northampton et als. Superior court, 

Hampshire County. 
Michael J. Reardon v. City of Northampton et als. Superior 

court, Hampshire County. 
Edmund O'Keefe v. City of Northampton et als. Superior court, 

Hampshire County. 



140 ATTORNEY-GENERAL'S REPORT. [Jan, 



Suits Conducted by the Attorney-General in 
Behalf of State Boards and Commissions. 



The following cases have been reported to this department by 
State boards and commissions, to be conducted by the Attorney- 
General or under his direction, pursuant to the provisions of St. 
1896, c. 490: — 

1. Metropolitan Park Commission. 

Petitions to the superior court for assessment of damages alleged 
to have been sustained by the taking of land by the said commis- 
sion : — 

Henry P. Nawn v. Commonwealth. Suffolk County. Settled by 
agreement for $10,000, without interest and without costs. 

Laura W. Parker, wife of Charles Henry Parker, v. Common- 
wealth. Norfolk County. Settled by the Metropolitan Park 
Commissioners. 

Aaron D. Weld, Francis C. Welch, trustees, v. Commonwealth. 
Suffolk County. Pending. 

Horace T. Stearns, Ellen M. Hollis, v. Commonwealth. Middle- 
sex County. Trial by jury. Verdict for the petitioners for 
$800 and interest from Dec. 1, 1893. 

Henry S. Grew et al. v. Commonwealth. Suffolk County. Pend- 
ing. 

Henry S. Grew et al. v. Commonwealth. Norfolk County. Pend- 
ing. 

Alonzo V. Lynde v. Commonwealth. Middlesex County. Settled 
by agreement for $31,000. 

A. Cutter Sibley v. Commonwealth. Middlesex County. Settled 
by agreement for $750, without interest or costs. 

Middlesex Fells Spring Company v. Commonwealth. Middlesex 
County. Settled by agreement, entry of " judgment for the 
defendant and judgment satisfied." 

Sarah A. Bacon v. Commonwealth. Middlesex County. Settled 
by agreement for $4,400, without interest or costs. 



1898.] PUBLIC DOCUMENT — No. 12. 141 

Richard Dexter et al. v. Commonwealth. Middlesex County. 
Settled by Metropolitan Park Commissioners. 

Richard A. Lewis, trustee, and eleven others, v. Commonwealth. 
Norfolk County. Trial by jury. Verdict for petitioner for 
$4,411.40. 

George S. Hale et al., executors of Radcliffe College, v. Common- 
wealth. Norfolk County. Pending. 

Benjamin F. Dutton v. Commonwealth. Middlesex County. Trial 
before auditors. Award for the petitioner for $20,000 and 
interest from Feb. 2, 1894. 

Inhabitants of Hyde Park v. Commonwealth. Norfolk County. 
Pending. 

Aaron D. Weld et al., trustees, v. Commonwealth. Norfolk 
County. Pending. 

Charles A. White v. Commonwealth. Suffolk County. Settled 
by agreement for $2,600. 

Washington G. Benedict et als. v. Commonwealth. Suffolk County. 
Pending. 

Annie Crowley v. Commonwealth. Suffolk County. Trial by 
jury. Verdict for petitioner for $19,194.24. 

James H. Stark et al., trustees, v. Commonwealth. Suffolk County. 
Settled by agreement for $853.95. 

Jacob W. Seaver v. Commonwealth. Norfolk County. Pending. 

Henry S. Benton, trustee, v. Commonwealth. Norfolk County. 
Pending. 

Robert Bleakie v. Commonwealth. Norfolk County. Pending. 

Saco and Biddeford Savings Institution v. Commonwealth. Nor- 
folk County. Pending. 

Real Estate and Building Company v. Commonwealth. Norfolk 
County. Pending. 

John C. Lincoln v. Commonwealth. Norfolk County. Pending. 

George S. Lee, trustee, Andrew Webster et ah, trustees, v. Com- 
monwealth. Suffolk County. Pending. 

George S. Lee, trustee, A. G. Webster et al., trustees, v. Com- 
monwealth. Norfolk County. Pending. 

Charles H. Crummett v. Commonwealth. Norfolk County. Pend- 
ing. 

Frank B. Homans, administrator, v. Commonwealth. Norfolk 
County. Pending. 

Frank B. Homans v. Commonwealth. Norfolk County. Pending. 

President and Fellows of Harvard College v. Commonwealth. 
Suffolk County. Pending. 

J. Thomas Baldwin v. Commonwealth. Suffolk County. Filed 
plea of abandonment. 



142 ATTORNEY-GENERAL'S REPORT. [Jan. 

George Putnam et aZ., trustees, v. Commonwealth. Suffolk County. 
Trial by jury. Verdict for petitioners for $12,472.42. 

Roxanna M. Chapman v. Commonwealth. Middlesex County. 
Settled. Entry in court of " judgment for the defendant 
and judgment satisfied." 

James H. Page, trustee, v. Commonwealth. Settled by agreement 
for $4,500. 

Sarah J. O'Keefe v. Boston, Revere Beach & Lynn Railroad 
Company. Middlesex County. Settled by the Metropolitan 
Park Commissioners for $14,500. 

Benjamin Shurtleff et als. v. Boston, Revere Beach & Lynn Rail- 
road Company. Middlesex County. Trial by county com- 
missioners. Award for petitioners of $3,055, with interest 
from date of taking. 

Daniel Holland v. Boston, Revere Beach & Lynn Railroad Com- 
pany. Middlesex County. Trial before county commission- 
ers. Award for petitioner of $1,555, with interest from date 
of taking. 

Jane Putnam et als. v. Boston, Revere Beach & Lynn Railroad 
Company. Middlesex County. Trial before county com- 
missioners. Award for petitioners of $1,980, with interest 
from date of taking. 

Lynn & Boston Railway Company v. Boston, Revere Beach & 
Lynn Railroad Company. Middlesex County. Settled by 
agreement for $4,000, without costs. 

George W. Fifield, administrator, et al. v. Boston, Revere Beach 
& Lynn Railroad Company. Middlesex County. Pending. 

George W. Fifield, administrator, v. Boston, Revere Beach & 
Lynn Railroad Company. Middlesex County. Settled by 
agreement for $2,000 and interest. 

George W. Fifield, administrator, v. Boston, Revere Beach & 
Lynn Railroad Company. Middlesex County. Pending. 

George W. Fifield, administrator, v. Boston, Revere Beach & 
Lynn Railroad Company. Middlesex County. Pending. 

George W. Fifield, administrator, v. Boston, Revere Beach & 
Lynn Railroad Company. Middlesex County. Settled by 
agreement for $9,240 and interest. 

George W. Fifield, administrator, v. Boston, Revere Beach & 
Lynn Railroad Company. Middlesex County. Pending. 

George W. Fifield, administrator, et al. v. Commonwealth. Suf- 
folk County. Settled by agreement for $992 and interest. 

George W. Fifield, administrator, et al. v. Commonwealth. Suf- 
folk County. Pending. 



1898.] PUBLIC DOCUMENT — No. 12. 143 

George W. Fifield, administrator, et al. v. Commonwealth. Suf- 
folk County. Pending. 

George W. Fifield, administrator, et als. v. Commonwealth. Suf- 
folk County. Pending. 

George W. Fifield, administrator, et als. v. Commonwealth. 
Suffolk County. Pending. 

Arthur D. McClellan v. Commonwealth. Suffolk County. Pend- 
ing. 

George W. Fifield, administrator, v. Commonwealth. Suffolk 
County. Pending. 

George W. Fifield, administrator, v. Commonwealth. Suffolk 
County. Settled by agreement for $8,576. 

George W. Fifield, administrator, v. Commonwealth. Suffolk 
County. Settled by agreement for $14,364, interest and 
costs. 

George W. Fifield, administrator, v. Commonwealth. Suffolk 
County. Pending. 

George W. Fifield, administrator, v. Commonwealth. Suffolk 
County. Pending. 

George W. Fifield, administrator, v. Commonwealth. Suffolk 
County. Settled by agreement for $992 and interest. 

George W. Fifield, administrator, v. Commonwealth. Suffolk 
County. Pending. 

George W. Fifield, administrator, v. Commonwealth. Suffolk 
County. Pending. 

Arthur D. McClellan v. Boston, Revere Beach & Lynn Railroad 
Company. Middlesex County. Pending. 

George W. Fifield, administrator, v. Boston, Revere Beach & 
Lynn Railroad. Middlesex County. Settled by exchange of 
land. 

George W. Fifield, administrator, v. Boston, Revere Beach & 
Lynn Railroad (2 cases). Middlesex County. Settled by 
agreement for $4,500, interest and costs. 

George W. Fifield, administrator, v. Commonwealth. Suffolk 
County. Pending. 

George W. Fifield, administrator of Charles S. Fifield, v. Com- 
monwealth. Suffolk County. Pending. 

George W. Fifield, administrator, et al. v. Boston, Revere Beach 
& Lynn Railroad Company. Middlesex County. Pending. 

George W. Fifield, administrator, et al. v. Boston, Revere Beach 
& Lynn Railroad Company. Middlesex County. Pending. 

George W. Fifield, administrator, et al. v. Boston, Revere Beach 
& Lynn Railroad Company. Middlesex County. Settled by 
agreement for $44,386.25, with interest from date of taking. 



144 ATTORNEY-GENERAL'S REPORT. [Jan. 

George W. Fi field, administrator, et al. v. Boston, Revere Beach 
& Lynn Railroad Company. Middlesex County. Pending. 

Arthur D. McClellan v. Boston, Revere Beach & Lynn Railroad 
Company. Middlesex County. Pending. 

George S. Lee, trustee, et al. v. Boston & Maine Railroad Com- 
pany. Middlesex County. Pending. 

Robert Gilespie v. Commonwealth. Suffolk County. Settled by 
agreement for $40,000 and interest at 5 per cent, from Jan. 
1, 1897. 

Johanna Sullivan v. Commonwealth. Middlesex County. Settled 
by agreement for $1,300. 

Wheelwright Scientific School v. Commonwealth. Middlesex 
County. Pending. 

George A. Gibson v. Commonwealth. Middlesex County. Pend- 
ing. 

Louisa J. Govan v. Boston & Maine Railroad Company. Middle- 
sex County. Trial before county commissioners. Award for 
petitioner of $650.70, with interest and costs. 

Louisa J. Govan v. Boston, Revere Beach & Lynn Railroad Com- 
pany. Middlesex County. Trial before county commis- 
sioners. Award for petitioner of $749.30, with interest and 
costs. 

Leopold Morse Home for Infirm Hebrews and Orphanage v. Com- 
monwealth. Norfolk County. Pending. 

John Williams v. Commonwealth. Middlesex County. Settled. 

Patrick J. and Jeremiah J. Kennelly v. Commonwealth. Middlesex 
County. Settled for $150. 

Charles E. Willard v. Commonwealth. Suffolk County. Pending. 

Charles E. Dearborn v. Commonwealth. Suffolk County. Pend- 
ing. 

Edward Symmes v. Commonwealth. Middlesex County. Settled 
by agreement for $1,762.80, with interest from date of taking. 

Margaret E. Reed, guardian, v. Commonwealth. Norfolk County. 
Settled by agreement. Entry of " judgment for the defend- 
ant and judgment satisfied." 

Charles F. Hail, administrator, v. Commonwealth. Norfolk 
County. Settled by agreement. Entry of " judgment for the 
defendant and judgment satisfied." 

Daniel A. Hart et al. v. Commonwealth. Middlesex County. Trial 
by jury. Verdict for petitioners for $647.27. 

Charles E. Chenery et ah. v. Commonwealth. Middlesex County. 
Trial by jury. Verdict for petitioners for $1,109.60. 

Edward J. Coolidge v. Commonwealth. Middlesex Couuty. Trial 
by jury. Verdict for petitioner for $2,026.75. 



1898.] PUBLIC DOCUMENT- No. 12. 145 

Charles Long et als. v. Commonwealth. Middlesex County. Trial 
by jury. Verdict for petitioners for $485.45. 

Edward J. Coolidge et als. v. Commonwealth. Middlesex County. 
Settled by agreement for $19,000. 

John Norris v. Commonwealth. Suffolk County. Pending. 

John Norris v. Boston, Revere Beach & Lynn Railroad. Middle- 
sex County. Pending. 

Theresa C. Airola v. Boston, Revere Beach & Lynn Railroad 
Company. Middlesex County. Trial before county commis- 
sioners. Award for the petitioner of $550, with interest. 

Frank E. Nichols v. Boston, Revere Beach & Lynn Railroad. 
Middlesex County. Trial before county commissioners. 
Award for the petitioner of $300, with interest. 

J. Arthur Heaton v. Commonwealth. Suffolk County. Pending. 

Maria Frances Whitten v. Commonwealth. Suffolk County. 
Settled by Metropolitan Park Commissioners. 

Josiah H, Stickney et als. v. Commonwealth. Middlesex County. 
Pending. 

Sarah A. Bacon v. Commonwealth. Middlesex County. Pending. 

Henry P. Walcott v. Commonwealth. Suffolk County. Pending. 

Ann Bacon v. Commonwealth. Middlesex County. Settled by 
Metropolitan Park Commissioners. 

President and Fellows of Harvard College v. Commonwealth. 
Suffolk County. Pending. 

Estella L. Lancaster v. Commonwealth. Suffolk County. Settled 
by agreement for $3,500. 

City of Boston v. Commonwealth. Middlesex County. Settled 
by Metropolitan Park Commissioners. 

Daniel McClond v. Commonwealth. Middlesex County. Settled 
for $2,000, without interest or costs. 

Caroline E. Ricker and George A. Wilson v. Commonwealth. 
Suffolk County. Pending. 

Eugene A. Ayer v. Commonwealth. Middlesex County. Settled 
by agreement for $6,500, with interest. 

John E. Cassidy v. Commonwealth. Middlesex County. Pending. 

John E. Cassidy v. Commonwealth. Middlesex County. Pending. 

John E. Cassidy v. Commonwealth. Middlesex County. Pending. 

James H. Stark and Frederick J. Stark, trustees, v. Common- 
wealth. Suffolk County. Settled by agreement for $446.05. 

Frederick H. Rindge v. Commonwealth. Suffolk County. Pending. 

John Rennison v. Commonwealth. Middlesex County. Settled 
by agreement for $5,500. 

George O. Foster et als. v. Commonwealth. Middlesex County. 
Settled by agreement for $4,000. 



146 ATTORNEY-GENERAL'S REPORT. [Jan. 

Mary A. Russell v. Commonwealth. Middlesex County. Pending. 

William I. Palmer v. Commonwealth. Middlesex County. Pend- 
ing. 

William I. Palmer et al. v. Commonwealth. Middlesex County. 
Pending. 

Eugene W. Graves et al. v. Commonwealth. Norfolk County. 
Pending. 

Leopold Morse Home for Infirm Hebrews and Orphanage v. Com- 
monwealth. Norfolk County. Pending. 

Joseph O. Bullard v. Commonwealth. Suffolk County. Pending. 

Willard A. Bullard v. Commonwealth. Suffolk County. Pending. 

George W. Fifield, administrator, et al. v. Commonwealth. 
Suffolk County. Settled by exchange of land. 

George W. Fifield, administrator, et al. v. Commonwealth. 
Suffolk County. Pending. 

George W. Fifield, administrator, v. Commonwealth. Suffolk 
County. Settled by exchange of land. 

George W. Fifield, administrator, et al. v. Commonwealth. Suffolk 
County. Settled by exchange of land. 

Boston, Revere Beach & Lynn Railroad v. Commonwealth. Suf- 
folk County. Settled by the Metropolitan Park Commis- 
sioners. 

Michael Maloney v. Commonwealth. Suffolk County. Pending. 

Laura S. Fontarive v. Commonwealth. Suffolk County. Settled 
by agreement. 

The Proprietors of the Baptist Meeting House v. Commonwealth. 
Middlesex County. Settled by Metropolitan Park Commis- 
sioners. 

Ezra C. Dudley v. Commonwealth. Norfolk County. Pending. 

George W. Fifield, administrator, v. Boston, Revere Beach & Lynn 
Railroad Company. Middlesex County. Pending. 

Arthur D. McClellan v. Commonwealth. Suffolk County. Pend- 
ing. 

John McMahon v Commonwealth. Suffolk County. Pending. 

Lynn & Boston Railway Company v. Commonwealth. Suffolk 
County. Pending. 

Boston & Revere Electric Street Railway Company v. Common- 
wealth. Suffolk County. Pending. 

Benjamin Shurtleff et als. v. Commonwealth. Suffolk County. 
Settled by agreemeut for $9,500. 

Jane Putnam et als. v. Commonwealth. Suffolk County. Settled 
by agreement for $5,000. 

Daniel Holland et als. v. Commonwealth. Suffolk County. Settled 
by the Metropolitan Park Commissioners. 



1898.] PUBLIC DOCUMENT — No. 12. 147 

John B. Solari v. Commonwealth. Suffolk County. Pending. 
Lucy A. Hayward, executrix, v. Commonwealth. Suffolk County. 

Pending. 
Alvin C. Norcross v. Commonwealth. Suffolk County. Pending. 
Lewis V. Bronsden et als. v. Commonwealth. Norfolk County. 

Pending. 
James Manning v. Commonwealth. Suffolk County. Pending. 
Samuel H. Seager v. Commonwealth. Essex County. Pending. 
Lemuel Grossman et al. v. Commonwealth. Norfolk County. 

Pending. 
Gib Bodreau v. Commonwealth. Essex County. Settled by 

agreement. 
Stephen W. Watts v. Commonwealth. Essex County. Pending. 
Ann Bacon v. Commonwealth. Middlesex County. Settled by 

Metropolitan Park Commissioners. 
William Dwyer et al. v. Commonwealth. Middlesex County. 

Pending. 
William Dwyer v. Commonwealth. Middlesex County. Pending. 



2. Metropolitan Sewerage Commission. 
Petitions to the superior court for assessment of damages 
alleged to have been sustained by the taking of rights and ease- 
ments in lands by said commission. 

Butchers' Slaughtering and Melting Association v. Commonwealth. 
Suffolk County. Trial by jury and verdict for the petitioner 
for $1. Motion for new trial overruled. Exceptions taken 
and overruled. See Mass. Law Rep. Oct. 6, 1897, s. c. 169 
Mass. 

City of Boston v. Commonwealth. Suffolk County. Pending. 

Amos Stone et al. v. Commonwealth, Suffolk County. Pending. 

John Griffin v. Commonwealth. Suffolk County. Pending. 

City of Chelsea v. Commonwealth. Suffolk County. Agreement 
of " neither party " entered. 

Nicholas J. Penney v. Commonwealth. Middlesex County. Ver- 
dict for defendant. Plaintiff's exceptions now pending before 
supreme judicial court. 

John Cochrane, Jr., v. Commonwealth. Middlesex County. Trial 
by jury. Verdict for the petitioner for $1,283. 

Cochrane Carpet Company v. Commonwealth. Middlesex County. 
Trial by jury. Verdict for the petitioner, for $9,729.41. 

Lucretia T. Carr et al. v. Commonwealth. Middlesex County. 
Trial by jury. Jury disagreed. Pending. 



148 ATTORNEY-GENERAL'S REPORT. [Jan. 

Elizabeth J. C. Mann v. Commonwealth. Middlesex County. 
Trial before referees. Award for the petitioner of $600, 
with interest and costs. 

Joseph Stone et al. v. Commonwealth. Suffolk County. Pending. 

Joseph Stone etal. v. Commonwealth. Middlesex County. Pend- 
ing. 

J. Eugene Cochrane v. Commonwealth. Norfolk County. Pend- 
ing. 

3. Metropolitan Water Board. 

Petitions to the superior court for assessment of damages 
alleged to have been sustained by the taking of rights and ease- 
ments in lands by said commission. 

James W. McDonald, executor, Susan M. Moore and De Clinton 
Nichols v. City of Boston. Worcester County. Pending. 

James W. McDonald, executor, v. City of Boston. Worcester 
County. Pending. 

Selina N. Rice v. City of Boston. Worcester County. Pending. 

James W. McDonald, executor, and Susan M. Moore v. City of 
Boston. Worcester County. Pending. 

Dennis Sweeney v. City of Boston. Middlesex County. Settled. 

Edna R. Hess and Lydia A. Rice, mortgagee, v. City of Boston. 
Worcester County. Pending. 

Sarah F. and Carrie L. Williams v. City of Boston. Worcester 
County. Settled by Metropolitan Water Board for $10,250. 

Josephine B. Kidder v. City of Boston. Worcester County. 
Pending. 

Carrie L. Williams, administratrix of Henry C. Williams, v. City 
of Boston. Worcester County. Pending. 

Nahum Brewer v. City of Boston, Worcester County. Settled. 

De Clinton Nichols et al. v. City of Boston. Worcester County. 
Pending. 

De Clinton Nichols et al. v. City of Boston. Worcester County. 
Pending. 

De Clinton Nichols v. City of Boston. Worcester County. Pend- 
ing. 

Amelia Howe et al. v. City of Boston. Middlesex County. Set- 
tled for $1,300. 

Eliza H. Reed et als. v. City of Boston. Worcester County. Pend- 
ing. 

Marshall Whittemore v. City of Boston. Worcester County. 
Settled for $2,754. 

Town of Southborough v. City of Boston. Worcester County. 
Settled for $1,125. 



1898.] PUBLIC DOCUMENT — No. 12. 149 

Elsie J. Miller et al. v. Commonwealth. Worcester County. 
Settled by Metropolitan Water Board. 

Josephine Burnett, Henry Burnett et al., trustees, v. City of Bos- 
ton. Worcester County. Pending. 

Josephine Burnett et al., trustees, v. City of Boston. Worcester 
County. Pending. 

Charles A. Woods v. City of Boston. Worcester County. Pend- 
ing. 

Josephine B. Kidder v. Commonwealth. Worcester County. 
Pending. 

Harry Burnett et als. v. Commonwealth. Superior court. Pend- 
ing. 

Miscellaneous Cases from Above Commissions. 

Mary E. Connolly v. Charles G. Craib. Action of tort in the 
superior court, Suffolk County, to recover damages for per- 
sonal injuries alleged to have been sustained by an employee 
of the contractor in the construction of the metropolitan 
sewer, the defendant being the inspector employed by the 
Metropolitan Sewerage Commissioners. Pending. 

Hosea Kingman et al., petitioners. Petition to the supreme judi- 
cial court for Suffolk County for the appointment of commis- 
sioners to apportion the costs of construction of the Mystic 
and Charles River valley system and the Neponset River 
valley system (two petitions consolidated) of the metropolitan 
sewer. E. H. Bennett, John E. Sanford and E. C. Bumpus 
appointed commissioners. Report of commissioners accepted 
and final decree entered. Town of Milton has appealed. 
Decree affirmed. See Banker and Tradesman of Jan. 12, 1898. 

Mary Rohan v. Commonwealth. Petition to the superior court for 
Suffolk County in the nature of an action of tort for personal 
injuries alleged to have been sustained in the construction of 
a section of the metropolitan sewer. Pending. 

Josephine Burnett et al. v. Commonwealth of Massachusetts and 
Metropolitan Water Board. Bill in equity in the superior 
court for Worcester County to enjoin defendants from enjoy- 
ing certain easements taken in plaintiffs' property. Hearing 
before single justice. Appeal and exceptions. Argued 
before full court. Bill dismissed. See 169 Mass. 

Commonwealth of Massachusetts v. Jesse Moulton and Michael 
O'Mahoney. Bill in equity, asking for injunction to restrain 
defendants from continuing work on a portion of the Nashua 
River aqueduct. Injunction granted. Injunction dissolved 
by agreement of parties. 



150 ATTORNEY-GENERAL'S REPORT. [Jan. 

Andrew W. Fitzgerald v. Town of Southborough. Action of tort 
in the superior court, Worcester County, for personal injuries 
alleged to have resulted from a defect in a town way dug up 
in the course of the work of the Metropolitan Water Board. 
By St. 1895, c. 488, § 12, the said board is required to save 
cities and towns harmless against all damages for such in- 
juries. Trial by jury. Verdict for defendant. 

Andrew Chalmers v. Town of Southborough. Same cause of action 
as preceding case. Superior court, Worcester County. Trial 
by jury. Verdict for defendant. 

City of Chelsea v. the Metropolitan Construction Company and 
Metropolitan Sewerage Commissioners. Action of tort, supe- 
rior court, Suffolk County. Appearance entered. Settled. 

Chas. B. Sawin et al. v. Richard A. Malone et a/., Henry H. Sprague 
etals., trustees. Municipal court, Suffolk County. Action 
of contract. Settled by the Metropolitan Board. 

Sarah J. O'Keefe v. Boston, Revere Beach & Lynn Railroad Com- 
pany. Petition to the Middlesex County Commissioners for an 
assessment of damages alleged to be caused by widening the 
location of defendant's railroad. Hearing. Settled by 
Metropolitan Park Commissioners, together with other claims 
on which no petitions were brought, for $14,500. 

Willard G. Nash v. Commonwealth and S. Casparis. Bill in equity 
in the superior court for Suffolk County to compel the Com- 
monwealth to pay petitioner certain moneys due to Casparis 
from the Commonwealth and alleged to be due from him to 
petitioner. Demurrer tiled. Pending. 

John P. Sullivan et als. v. Metropolitan Construction Company 
and Metropolitan Sewerage Commissioners. Action of tort 
in the municipal court for the city of Boston for injury caused 
by construction of metropolitan sewer in Chelsea. Appear- 
ance entered. Pending. 



4. State Board of Lunacy and Charity. 

(a.) Actions of contract pending in the superior court for Suf- 
folk County to recover charges for the support of insane paupers 
in State lunatic hospitals, under the provisions of Pub. Sts., c. 
87, § 32. 

Geo. A. Marden, Treasurer, v. City of Cambridge. Suffolk 

County. Pending. 
Same v. Same. Suffolk County. Pending. 
Same v. Same. Suffolk County. Pending. 



1898.] PUBLIC DOCUMENT— No. 12. 151 

Same v. Same. Suffolk County. Pending. 

Same v. Town of Peabody. Suffolk County. Pending. 

Same v. City of Waltham. Suffolk County. Pending. 

Henry M. Phillips, Treasurer, v. Town of Reading. Suffolk 

County. Pending. 
Same v. City of Worcester. Suffolk County. Pending. 
Same v. City of Cambridge. Suffolk County. Pending. 
Same v. City of Quincy et al. Suffolk County. Pending. (This 

case has been discontinued against Quincy, and now stands 

against the city of Boston.) 
Same v. Town of Stow. Suffolk County. Pending. 
Edward P. Shaw, Treasurer, v. City of Boston. Suffolk County. 

Pending. 
Edward P. Shaw, Treasurer, v. Esau Cooper. Middlesex County. 

Pending. 

(b.) Bastardy complaints brought under Pub. Sts., c. 85. 

Esther E. Bronner v. Charles E. Fox. Superior court, Suffolk 

County. Trial by jury. Verdict for the defendant. 
Margaret M. Fennessey v. Michael McCarthy. Suffolk County. 

Entry of agreement of " neither party." 
Bridget Crotty v. Michael Welch. Superior court, Middlesex 

County. Plaintiff non-suited. 
Ellen F. Walsh v. Thomas B. Hanlon. Superior court, Suffolk 

County. Pending. 
Augusta W. Thurlin v. John Peters. Superior court, Suffolk 

County. Parties married. Defendant discharged. 
Mary Learey v. Alfred Thornley. Municipal court for the city of 

Boston. Hearing. Defendant bound over to the superior 

court. Pending. 
Jennie Harley v. William Minkle. Superior court, Suffolk County. 

Pending. 



152 ATTORNEY-GEXERAL'S REPORT. [Jan. 



MISCELLANEOUS CASES. 



The American Ballot Box Association v. the Commonwealth. 
Petition to the superior court of Suffolk County for the price 
of ballot boxes. Pending. 

Henry J. Winde, executor, v. Suffolk Savings Bank and Common- 
wealth et al. Bill in equity, Suffolk supreme judicial court. 
T. H. Tynclale, public administrator, has become a party to 
the suit. A hearing has been had before a justice of the 
supreme judicial court. Decree. 

George H. Titcomb v. Cape Cod Ship Canal Company, George 
A. Harden, Treasurer, et al. Petition for injunction to re- 
strain the Treasurer of the Commonwealth from the payment 
of money under St. l'883, c. 259, and St. 1891, c. 397. 
Answer filed. Pending. 

Commonwealth, by Board of Commissioners of Savings Banks, v. 
Suffolk Trust Company. Petition for injunction and appoint- 
ment of receiver. Injunction issued. J. Haskell Butler ap- 
pointed receiver. Pending. 

Commonwealth ex rel. Savings Bank Commissioners v. Stockbridge 
Savings Bank. Petition for injunction and appointment of 
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. F. A. Hobbs was removed from the 
office of receiver by the court, and after a hearing was 
sentenced to six months' imprisonment in jail at Boston for 
contempt of court. He is now under bond to answer to an 
indictment for embezzlement found against him by the grand 
jury of Berkshire County. William C. Spaulding of West 
Stockbridge was appointed by the court receiver in place of 
Mr. Hobbs. The new receiver has declared a dividend of 
sixteen per cent. Pending. 

Falmouth National Bank v. Cape Cod Ship Canal Company et al. 
Bill in equity in the supreme judicial court of Suffolk. Answer 
filed. Hearing. Application for receiver denied. This case 
has been argued before the full court. Decree affirmed. See 
166 Mass. 550. 



1898.] PUBLIC DOCUxMENT — No. 12. 153 

William F. Davis, plaintiff in error, v. the Commonwealth. Writ 
of error from the United States supreme court to the superior 
court of Suffolk County. Judgment affirmed See 167 U. S. 43. 

George S. Merrill, Insurance Commissioner, v. the Commonwealth 
Mutual Fire Insurance Company. Petition to the supreme 
judicial court for Suffolk County for an injunction and a re- 
ceiver under the provisions of section 7 of chapter 522 of the 
Acts of 1894. Injunction issued, and William B. Stevens, 
Esq., appointed receiver. Pending. 

George S. Merrill, Insurance Commissioner, v. the Suffolk Mutual 
Fire Insurance Company. Petition to the supreme judicial 
court for Suffolk County for an injunction and appointment 
of a receiver, under the provisions of section 7 of chapter 522 
of the Acts of 1894. Injunction issued, and James C. Davis, 
Esq., appointed receiver. Pending. 

Frederick W. Brown, petitioner for writ of mandamus, v. Charles 
Theodore Russell et a?s., Civil Service Commissioners. Peti- 
tion to the supreme judicial court for Suffolk County to test 
the constitutionality of the veterans' preference act so-called, 
chapter 501 of the Acts of the year 1895. Argued before the 
full court. Writ issued. See 167 Mass. 14. 

Mary G. Fiske et al., petitioners, v. the Commonwealth. Petition 
to the superior court for Suffolk County to determine the 
petitioner's title to flats on the Charles River, south of the 
West Boston Bridge, under the Resolves of 1895, chapter 49. 
Appearance for the Commonwealth entered. Decree, April 
10, 1896. 

Starkes Whiton et a?s., Board of Savings Bank Commissioners, 
petitioners, v. Globe Investment Company. Petition to the 
supreme judicial court for Suffolk County, under the provisions 
of chapter 387 of the Acts of 1888, for an injunction and re- 
ceiver. Injunction granted, and Henry A. Wyman appointed 
receiver. Pending. 

Forrest E. Barker et al., Board of Gas and Electric Light Com- 
missioners, v. the Woonsocket Electric Machine and Power 
Company. Bill in equity in the supreme judicial court for 
Worcester County, under the provisions of chapter 314 of the 
Acts of 1885, chapter 346 of the Acts of 1886 and chapter 
382 of the Acts of 1887, to compel the defendant to comply 
with the orders of the commissioners. Dismissed. 

George S. Merrill, Insurance Commissioner, v. Patrons' Mutual 
Fire Insurance Company. Petition to the supreme judicial 
court for Suffolk County for an injunction and the appoint- 
ment of a receiver. Injunction issued, and Robert H. Leland, 
Esq., appointed receiver. Pending. 



154 ATTORNEY-GENERAL'S REPORT. [Jan. 

George S. Merrill, Insurance Commissioner, v. the Melrose Mutual 
Fire Insurance Company. Petition to the supreme judicial 
court for Suffolk County for an injunction and the appoint- 
ment of a receiver. Injunction issued, and Alpheus Sanford, 
Esq., appointed receiver. Pending. 

George S. Merrill, Insurance Commissioner, v. Elm Mutual Benefit 
Society. 

Same v. Supreme Lodge Chevaliers of Pythias. 

Same v. Supreme Lodge Ancient Order of Columbus. 

Same v. The Supreme Lodge of the Order of Fraternity. 

Same v. Supreme Temple Independent Chevaliers and Ladies of 
Industry. 

Same v. Supreme Assembly of the Order of Sons and Daughters 
of the Maritime Provinces. 

Same v. Club Lafayette Corporation. 

Same v. Kurland Brotherhood. 

Same v. Society of St. John the Baptiste. 

Same v. Society de Secours Mutuels St. Joseph. 

These cases were petitions to the supreme judicial court for 
Suffolk County for injunctions and the appointment of receivers, 
under the provisions of chapter 340 of the Acts of the year 1895. 
Injunctions issued, and George S. Merrill was appointed receiver. 

Commonwealth, by the Board of Savings Bank Commissioners, v. 
Brookfield Savings Bank. Petition to the supreme judicial 
court for Suffolk County for an injunction and the appoint- 
ment of a receiver. Injunction issued, and George W. John- 
son appointed receiver. Pending. 

Selectmen of the Town of Bourne, petitioners for the changing of 
a bridge on the New York, New Haven & Hartford Railroad. 
Pub. Sts., c. 112, § 130. Pending. 

George S. Merrill, Insurance Commissioner, v. Bay State Mutual 
Fire Insurance Company. Petition to the supreme judicial 
court for Suffolk County for an injunction and the appoint- 
ment of a receiver. Injunction issued, and Herbert Parker, 
Esq., appointed receiver. Pending. 

George S. Merrill, Insurance Commissioner, v. Colonial Mutual 
Fire Insurance Company. Petition to the supreme judicial 
court for Suffolk County for an injunction and appointment 
of a receiver. Injunction issued, and W. O. Underwood, Esq., 
appointed receiver. Pending. 

S. Homer Woodbridge v. Joseph A. Moore and Rufus R. Wade. 
Petition to the superior court for Suffolk County to test the 



1898.] PUBLIC DOCUMENT — No. 12. 155 

powers of the respondent Moore as inspector, acting under 
the authority of chapter 481 of the Acts of 1894, Appear- 
ance of the Attorney-General entered. Pending. 

James E. O'Neil, plaintiff in error, v. Commonwealth. Writ of 
error in the supreme judicial court in Essex County for an 
alleged illegal sentence by the superior court in said county. 
Judgment affirmed. 

Commonwealth, by the Board of Savings Bank Commissioners, v. 
the Millis Savings Bank. Petition to the supreme judicial 
court in Suffolk County for an injunction and the appointment 
of a receiver. Preliminary injunction granted. Pending. 

George S. Merrill, Insurance Commissioner, v. Right Arm Masonic 
Mutual Relief Association. Petition (St. 1895, c. 340) to the 
supreme judicial court for Suffolk County to have a receiver 
appointed and association dissolved. Injunction issued, and 
Geo. H. Snow of Harwich appointed receiver. Final decree. 

George S. Merrill, Insurance Commissioner, v. Standard Mutual 
Fire Insurance Company. Petition to the supreme judicial 
court for Suffolk County for an injunction and receiver under 
the provisions of St. 1894, c. 522, § 7. Injunction issued, 
and R. D. Weston-Smith, Esq., appointed receiver. Pending. 

George S. Merrill, Insurance Commissioner, v. Central Mutual Fire 
Insurance Company. Petition to the supreme judicial court 
for Suffolk County for an injunction and a receiver under the 
provisions of St. 1894, c. 522 § 7. Injunction issued, and R. 
D. Weston-Smith, Esq., appointed receiver. Pending. 

George S. Merrill, Insurance Commissioner, v. Wachusett Mutual 
Fire Insurance Company. Petition to the supreme judicial 
court for Suffolk County for an injunction and a receiver 
under the provisions of St. 1894, c. 522, § 7. Injunction 
issued, and Henry W. Ware, Esq., appointed receiver. 
Pending. 

George S. Merrill, Insurance Commissioner, v. Milford Mutual 
Fire Insurance Company. Petition to the supreme judicial 
court for Suffolk County for an injunction and a receiver 
under the provisions of St. 1894, c. 522, § 7. Injunction 
issued, and Wendell Williams, Esq., appointed receiver. 
Pending. 
George S. Merrill, Insurance Commissioner, v. Excelsior Mutual 
Fire Insurance Company. Petition to the supreme judicial 
court for Suffolk County for an injunction and a receiver 
under the provisions of St. 1894, c. 522, § 7. Injunction 
issued, and Edward I. Baker, Esq., appointed receiver. 
Pending. 



156 ATTORNEY-GENERAL'S REPORT. [Jan. 

George S. Merrill, Insurance Commissioner, v. Commerce Mutual 
Fire Insurance Company. Petition to the supreme judicial 
court for Suffolk County for an injunction and the appoint- 
ment of a receiver. Injunction issued, and Godfrey Morse, 
Esq., appointed receiver. Pending. 

New York, New Haven & Hartford Railroad Company and Provi- 
dence & Worcester Railroad Company v. John E. Sanford 
et aZs., Board of Railroad Commissioners. Petition to the 
supreme judicial court for Suffolk County for a writ of 
certiorari. Dismissed by agreement. 

George S. Merrill, Insurance Commissioner, v. Guardian Life In- 
surance Company. Petition to the supreme judicial court for 
Suffolk County for an injunction and the appointment of a 
receiver. Injunction issued, and Frank D. Allen, Esq., 
appointed receiver. Pending. 

Charles Ziemann v. Board of Registration in Medicine. Petition 
to the supreme judicial court for Suffolk County for a writ of 
mandamus to compel respondent to register the petitioner in 
accordance with St. 1894, c. 458. Demurrer. Demurrer 
overruled. Hearing on the merits. Petition dismissed. 

George S. Merrill, Insurance Commissioner, v. Security Live Stock 
Insurance Company. Petition to the supreme judicial court 
for Suffolk County for an injunction and the appointment of 
a receiver. Injunction issued, and Alpheus Sanford, Esq., 
appointed receiver. Pending. 

Richard P. O'Reily v. Samuel Dalton et als. Petition to the su- 
preme judicial court for Suffolk County for a writ of certiorari, 
claiming want of jurisdiction by the board appointed under 
St. 1893, c. 367, § 65, in the matter of the reorganization 
of the Eighth Regiment of Infantry, M. V. M. Answer. 
Pending. 

Guarantor's Liability Indemnity Company of Pennsylvania v. 
George S. Merrill, Insurance Commissioner. Bill in equity 
in the supreme judicial court for Suffolk County to restrain 
defendant from examining company and revoking license. 
Demurrer. Demurrer sustained. Bill dismissed. 

H. Burr Crandall v. Charles Price, superintendent. Action of tort 
in the superior court for Middlesex County for conversion. 
Pending. 

Commonwealth, by the Board of Savings Bank Commissioners, v. 
the Union Loan and Trust Company. Petition to the supreme 
judicial court for Suffolk County for an injunction and the 
appointment of a receiver. Injunction granted, and Hon. 
Samuel W. McCall appointed temporary receiver. Interloc- 
utory decree. Pending. 



1898.] PUBLIC DOCUMENT — No. 12. 157 

Warren A. Cornell and Mary Leahy, petitioners. Petition to the 
probate court for Middlesex County for the appointment of a 
guardian for Susan Cornell. Appearance entered. Attorney- 
General waived right to be heard. 

Trustees of the Massachusetts Hospital for Consumptives and 
Tubercular Patients v. Delia A. Armitage, George Armitage 
and Robert J. Stevenson. Bill in equity in the superior court 
for Worcester County for specific performance of an alleged 
agreement to convey land. Decree. 

Commonwealth, by the Board of Savings Bank Commissioners, v. 
The Miners' Savings Bank. Petition to the supreme judicial 
court for Suffolk County for an injunction and the appoint- 
ment of a receiver under the provisions of St. 1894, c. 317, 
§ 6. Injunction issued and served. Pending. 

Louis Fink, petitioner. Petition to the supreme judicial court for 
Suffolk County for a writ of habeas corpus. Petition dis- 
missed. 

Catherine Drury, petitioner, v. Commonwealth et al. Petition to 
the superior court for Worcester County for assessment of 
damages to land abutting on the State highway in Leicester 
alleged to have been caused by changing grade of the street. 
Appearance entered. Pending. 

Jonathan M. Swift et al. v. Commonwealth. Petition to the 
superior court of Plymouth County for a jury to assess 
damages for change of grade along petitioner's land caused 
by the construction of State highway. Trial by jury. Ver- 
dict for petitioner for $112.50. 

Charlotte E. Gould v. Commonwealth. Petition to the superior 
court of Worcester County for land damages caused by taking 
of land for State highway. Appearance entered. Pending. 

Jacob L. Williams v. Commonwealth. Supplemental petition to 
the superior court for Suffolk County in the original petition of 
Jacob L. Williams v. Commonwealth to assess damages for 
land taken by the State House Construction Commission. 
Judgment for respondent on agreed statement of facts. Peti- 
tioner appeals. Judgment affirmed. See 168 Mass. 364. 

Attorney-General ex rel. Board of Harbor and Land Commission- 
ers v. George H. Ellis. Information in the supreme judicial 
court for Middlesex County to protect the waters of a great 
pond under St. 1888, c. 318. Answer. Case referred to a 
master to find facts, etc., and report. Pending. 

George B. Foster, petitioner to the probate court for Essex County 
to be appointed trustee of the will of J. T. Barker of a cer- 
tain estate to establish a free school in Boxford. Hearing 
waived. Pending. 



158 ATTORNEY-GENERAL'S REPORT. [Jan. 

Henry Weeks v. Town of Hoklen. Petition to the superior court 
of Worcester County for assessment of damages caused by 
abolition of tannery crossing in Holden. Referees' finding 
confirmed. Damages, $1,039.50. 

Nellie E. Moore v. the Town of Holden. Petition to the superior 
court of Worcester County for jury to assess damages caused 
by alteration of Tannery crossing in Holden. Referees' find- 
ing confirmed. Damages, $111.82. 

Martin C. Jewett v. Massachusetts Highway Commission. Supe- 
rior court, Franklin County. Petition for assessment of 
damages alleged to have been caused by the construction of 
the State highway. Answer filed. Pending. 

James P. Dillon v. Commonwealth. Supreme judicial court of 
Suffolk County. Writ of error, assigning error in record of 
superior court for Suffolk County in the trial of Common- 
wealth v. James P. Dillon. Motion to dismiss allowed. 

George S. Merrill, Insurance Commissioner, v. Eastern Mutual 
Fire Insurance Company. Petition to the supreme judicial 
court for Suffolk County for an injunction and the appoint- 
ment of a receiver. Injunction issued, and Fred H. Kidder, 
Esq., appointed receiver. Pending. 

Annie M. Dupont, petitioner. Petition to the supreme judicial 
court for Suffolk County for a writ of habeas corpus. Answer 
filed. Hearing. Petition dismissed. 

Henry W. Warren et als. v. the Town of Holden. Petition to the 
superior court for Worcester County for assessment of dam- 
ages to land caused by the alteration of Main Street at the 
tannery crossing in Holden. Pending. 

George S. Merrill, Insurance Commissioner, v. Suffolk Mutual 
Accident Association. Petition to the supreme judicial court 
for Suffolk County for an injunction and a receiver under the 
provisions of St. 1896, c. 515, § 6. Injunction issued, and 
George S. Merrill, Insurance Commissioner, appointed re- 
ceiver. Pending. 

George S. Merrill, Insurance Commissioner, v. the Boston Frater- 
nity League. Petition to the supreme judicial court for 
Suffolk County for an injunction and the appointment of a 
receiver under St. 1895, c. 340, § 1. Injunction issued, and 
J. N. Shattuck, appointed receiver. Pending. 

George S. Merrill, Insurance Commissioner, v. Franklin Mutual 
Fire Insurance Company. Petition to the supreme judicial 
court for Suffolk County for an injunction and the appoint- 
ment of a receiver. Pending. 



1898.] PUBLIC DOCUMENT — No. 12. 159 

Aaron Barton v. Massachusetts Benefit Life Association. Peti- 
tion to the supreme judicial court for Suffolk County for a 
receiver under St. 1896, c. 515. Petition dismissed. 

George S. Merrill, Insurance Commissioner, v. Odd Fellows Mu- 
tual Benefit Association. Petition to the supreme judicial 
court for Suffolk County for an injunction and the appoint- 
ment of a receiver. Injunction issued, and Sam. Chapin, 
Esq., of Lowell, appointed receiver. Pending. 

George S. Merrill, Insurance Commissioner, v. Continental Mutual 
Fire Insurance Company. Petition to the supreme judicial 
court for Suffolk County for an injunction and the appoint- 
ment of a receiver. Injunction issued, and Edward I. Baker, 
Esq., of Boston, appointed receiver. Pending. 

George S. Merrill, Insurance Commissioner, v. the Old Colony 
Mutual Insurance Company. Petition to the supreme judicial 
court for Suffolk County for an injunction and the appoint- 
ment of a receiver. Injunction issued, and William B. 
French, Esq., of Boston appointed receiver. Pending. 

Clara J. Sargent v. State Board of Lunacy and Charity. Superior 
court, Essex County. Appeal on a complaint charging 
neglect of children under St. 1882, c. 181. Appearance 
entered. Pending. 

George S. Merrill, Insurance Commissioner, v. Eagle Mutual Fire 
Insurance Company. Petition to the supreme judicial court 
for Suffolk County for an injunction and the appointment of 
a receiver. R. D. Weston Smith, Esq., of Boston appointed 
receiver. Pending. 

Silas H. Loring v. the Town of Holden. Superior court, Wor- 
cester County. Petition for assessment of damages to land 
by alterations of the tannery crossing in Holden. Appear- 
ance entered. Pending. 

Joseph F. Scott, superintendent, v. Phoenix Rattan Company and 
Eben D. Jordan et aZ, trustees. Action of contract, superior 
court, Suffolk County. Company petitioned into insolvency 
after entry of writ. Claim proved. Pending. 

Benjamin F. Bridges, warden, v. Phoenix Rattan Company and 
Eben D. Jordan et al, trustees. Action of contract, superior 
court, Suffolk County. Company petitioned into insolvency 
after entry of writ. Edgar N. Hill, Esq., of Boston, and 
Joseph F. Scott, Esq., of Concord, appointed assignees. 
Claim proved. Pending. 

George H. Ramsdell v. the Town of Ashby. Superior court, 
Middlesex County. Action of tort. Appearance entered. 
Pending. 



160 ATTORNEY-GENERAL'S REPORT. [Jan. 

Richard Cotter v. Board of Cattle Commissioners. Petition for 
assessment of damages for killing of two condemned cows. 
Superior court, Plymouth County. Appearance entered. An- 
swer filed. Pending. 

Richard Graham v. Cattle Commissioners. Superior court, Essex 
County. Petition for assessment of damages for killing horse. 
Appearance entered. Motion filed to dismiss. Pending. 

James Dowdell, petitioner. Petition to the supreme judicial court 
for Suffolk County for writ of habeas corpus to be released 
from the Westborougb. Insane Hospital. Petition dismissed 
by Lathrop, J. Case reported to the full court on a question 
of constitutionality of Pub. Sts., c. 87, §§12 and 13, and 
amendments. Argued before full bench. Petition dismissed. 
See 169 Mass., s. c. 47 N. E. Rep. 1033. 

Annie Johnson, petitioner. Petition to the supreme judicial court 
for Suffolk County for a writ of habeas corpus. Hearing. 
Petition dismissed. 

Attorney-general ex rel. Geo. S. Merrill, Insurance Commissioner, 
v. Massachusetts Benefit Life Association. Petition to the 
supreme judicial court for Suffolk County for an injunction 
and the appointment of a receiver. Injunction issued, and 
Arthur Lord, Esq., and Alfred S. Woodworth, Esq., both of 
Boston, appointed permanent receivers. Pending. 

Frank O. Twitchell v. the Security Savings and Loan Association 
and Edward P. Shaw, Treasurer. Superior court, Suffolk 
County. Pending. 

Horatio G. Herrick, Treasurer Danvers Hospital, v. Melancthorn 
Hanford et al. Action of contract to recover board at hospital. 
Pending. 

Samuel Wade, petitioner. Petition to the supreme judicial court 
for Bristol County for a writ of habeas corpus to be released 
from dipsomaniac hospital. Hearing. Petition dismissed. 

Michael Nolan v. Board of Registration in Medicine. Petition to 
supreme judicial court for Essex County for a writ of man- 
damus to compel the Board to register the petitioner. Hearing. 
Petition dismissed. 

Rebecca Booth v. Commonwealth. Petition to the superior court 
for Plymouth County for assessment of damages to land 
caused by construction of State highway. Appearance 
entered. Answer filed. Pending. 

Charles Endicott, Commissioner of Corporations, v. Jablochkoff 
Electric Lighting Company of New England. Petition to the 
supreme judicial court for Suffolk County for dissolution under 
Pub. Sts., c. 106, § 55. Pending. 



1898.] PUBLIC DOCUMENT — No. 12. 161 

Edward P. Shaw, Treasurer of the Commonwealth, v. Hampden 
Watch Company. Superior court, Suffolk County. Action 
of contract for taxes for the year 1895. Settled for $817.46. 
J. B. Haviland v. Commonwealth. Petition to the superior court 
for Suffolk County for services alleged to have been per- 
formed for Highway Commission. Pending. 
George S. Merrill, Insurance Commissioner,'?;. New England 
Mutual Fire Insurance Company. Petition to the supreme 
judicial court for Suffolk County for an injunction and the 
appointment of a receiver. Injunction issued, and Henry A. 
Wyman, Esq., of Boston, appointed receiver. Pending. 

Edwin R. Smith v. Mary O'Brien et als. Petition to the superior 
court for Suffolk County to affirm the judgment of the munic- 
ipal court of the city of Boston, appeal to superior court not 
having been entered. Judgment affirmed by decree. 

George A. Devlin v. Samuel Dalton, Adjutant-General, et al., 
Board of Examiners. Petition to the supreme judicial court 
for Suffolk County for a writ of certiorari. Return filed. 
Hearing. Petition dismissed. On motion of petitioner re- 
ported to full court. Pending. 

Henry O. Smith et als. v. Inhabitants of Leicester and the Com- 
monwealth. Bill in equity in the superior court for Worcester 
County to restrain town officers from raising money to pay ex- 
penses for damages caused by construction of State highway 
in Leicester. Appearance filed. Pending. 

Hosea M. Knowlton, Attorney-General, ex rel. Frederick L. Cut- 
ting, Insurance Commissioner, v. New England Live Stock 
Insurance Company. Petition to the supreme judicial court 
for Suffolk County for an injunction and the appointment of a 
receiver. Injunction issued, and Charles Walcott, Esq., of 
Cambridge, appointed receiver. Pending. 

Horatio G. Herrick, treasurer of Danvers Lunatic Hospital, v. 
Frederick L. Torrey. Action of contract in the superior 
court for Middlesex County for board of patient in Danvers 
Lunatic Hospital. Pending. 

Frances A. Hitchcock, widow of Dexter B. Hitchcock, petitioner. 
Petition to the supreme judicial court for Hampden County 
for appointment of trustees to convey real estate subject to a 
contingent and vested remainder. Attorney-General waived 
right to be heard. 

Attorney-General ex rel. Frederick L. Cutting, Insurance Commis- 
sioner, v. Mercantile Mutual Accident Association. Peti- 
tion to the supreme judicial court for Suffolk County for an 
injunction and receiver. Injunction granted. Pending. 



162 ATTORNEY-GENERAL'S REPORT. [Jan. 

Robert Codman et al. v. the Justices of the Superior Court. Peti- 
tion to the supreme judicial court for Suffolk County for a 
writ of certiorari to quash proceedings of superior court con- 
firming that part of the decree of the commissioners on 
the Congress Street grade crossing which relates to the taking 
of the plaintiff's land, on the ground that the commissioners 
had no authority to take the land, and that the court had no 
jurisdiction to confirm the decree. Pending. 

Hosea M. Knowlton, Attorney-General, ex rel. Frederick L. Cut- 
ting, Insurance Commissioner, v. Bay State Beneficiary Asso- 
ciation, of Westfield. Petition to the supreme judicial court 
for Suffolk County for an injunction and appointment of re- 
ceiver. Injunction granted, and Henry C. Hyde, Esq., and 
Henry C. Bliss, Esq., both of West Springfield, appointed 
temporary receivers. Pending. 

Hosea M. Knowlton, Attorney-General, ex rel. Frederick L. Cut- 
ting, Insurance Commissioner, v. World Accident Insurance 
Company. Petition to supreme judicial court for Suffolk 
County for an injunction and a receiver. Injunction granted. 
Pending. 

Hosea M. Knowlton, Attorney-General, ex rel. Frederick L. 
Cutting, Insurance Commissioner, v. The Massachusetts Ma- 
sonic Life Association. Petition to the supreme judicial court 
of Suffolk County for an injunction and receiver under St. 
1896, c. 515, § 6. Injunction granted, and Jonathan Barnes, 
Esq., of Springfield, appointed receiver. Pending. 

Commonwealth v. The Boston Terminal Company. Petition to 
superior court of Suffolk County for assessment of damages 
for land taken for new South Union Station. Pending. 

E. P. Shaw, Treasurer of the Commonwealth, v. Reliable Under- 
wear Company. Corporation tax for 1897. Company in 
insolvency in Worcester County. Claim proved. 

E. P. Shaw, Treasurer of the Commonwealth, v. Massachusetts 
Manufacturing and Electrical Company. Corporation tax 
for 1897. Company made common law assignment. Claim 
allowed. 

Trustees of the Worcester Lunatic Hospital v. Town of Ware. 
Action of contract for the board of Hiram L. Wood, a patient in 
said hospital. Referred to Herbert Parker, district attorney. 

E. P. Shaw, treasurer for the Worcester Lunatic Hospital, v. 
Catherine Crowe. Action of contract for board of patient at 
said hospital. Referred to Herbert Parker, district attorney. 

Benjamin F. Bridges, Warden, v. Albert H. D. French. Middle- 
sex County. Claim for $339.41. Defendant in insolvency. 
Claim proved. 



1898.] 



PUBLIC DOCUMENT — No. 12. 



163 



COLLECTIONS. 



Collections have been made by this department as follows : — 

Corporation taxes for the year 1896, overdue and referred by 
the Treasurer of the Commonwealth to the Attorney-Gen- 
eral for collection $62,098 47 

Interest on same at penal rate of twelve per cent., . . . 2,966 82 

Costs, 1,537 93 

Miscellaneous, 7,750 09 

Total, $74,353 31 

The following tables show a detailed statement of the same : — 



Collected on 
Account of Cor- 
poration Tax 
for 1896. 



Interest, 



Total. 



A. M. Gardner Hardware Company, 
A. M. Richards Building Moving 
Company, .... 

A. M. Richards Lumber Com 
pany, 

Adams Marble Company, 
American Bedstead Company, 
American Cultivator Publishing 

Company, .... 
American Mica Company, 
American Publishing Company, 
Arlington Hotel Company, . 
Appleton Shoe Company, 
Arthur C. King Company, 

B. W. Fellows Machine Company, 
Bay State Chair Company (incor- 
porated), .... 

Bay State Gas Company, 
Bay State Metal Works, 
Bay State Packing Company, 
Blackstone Valley Street Railw 

Company, .... 
Blake Manufacturing Company, 
Blanchard Machine Company, 
Boston Advertising Company, 



$751 98 

11 32 

50 00 
286 90 
163 84 

151 00 

647 18 

30 20 

30 20 

175 53 

105 70 

67 95 

135 90 

5,700 25 

181 20 

302 00 

500 00 
18 87 

135 90 
90 60 



$78 94 



6 98 



6 94 
17 23 

2 40 

4 92 

13 50 

2 36 

11 96 

131 10 

23 52 

17 86 



56 
14 52 

9 06 



$830 92 

12 00 

50 00 
293 88 
163 84 

157 94 

664 41 

30 20 

32 60 

180 45 

119 20 

70 31 

147 86 

5,831 35 

2i>4 72 

319 86 

500 00 
19 43 

150 42 
99 66 



164 



ATTORNEY-GENERAL'S REPORT. 



[Jan. 





Collected on 








Account of Cor- 








poration Tax 


Interest. 


Total. 




for 1896. 






Boston and Bay State Die Com- 








pany, 


$151 00 


$4 22 


$155 22 


Boston and Suburban Express Com- 








pany, 


151 00 


18 87 


169 87 


Boston Book Company, . 


1,132 50 


- 


1,132 50 


Boston Engraving and Mclndoe 








Printing Company, 


226 50 


- 


226 50 


Boston Gas Light Company, . 


495 28 


10 74 


506 02 


Boston Parcel Delivery Company, 


755 00 


22 65 


777 65 


Boylston Pharmacy (incorporated), 


15 00 


- 


15 00 


Bracketts Market Corporation, 


179 31 


4 12 


183 43 


Brookfield Brick Company, . 


128 35 


13 50 


141 85 


Brooks Bank Note Company, 


634 20 


75 00 


709 20 


CD. Morse Manufacturing Com- 








pany, . .... 


264 93 


- 


264 93 


C. W. Mutelle Manufacturing Com- 








pany, 


56 62 


6 79 


63 41 


Campbell Chemical Company, 


152 51 


11 44 


163 95 


Cape Ann Granite Railroad Com- 








pany, 


302 00 


34 13 


336 13 


Chandler Adjustable Chair and 








Desk Company, .... 


212 15 


12 02 


224 17 


Charles A. Millen Company, . 


327 67 


31 50 


359 17 


Charles A. White Company, . 


15 10 


39 


15 49 


Charles S. Brown Company, . 


906 00 


28 09 


934 09 


Boston Paving Company, 


302 00 


10 76 


312 76 


Chelsea Express Despatch Company, 


15 10 


48 


15 58 


Chicopee Falls Wheel Company, . 


211 40 


4 11 


215 51 


Child Acme Cutter and Press Com- 








pan}% 


203 85 


6 12 


209 97 


Childs & Kent Express Company, 


203 85 


21 00 


224 85 


Choate Drug and Chemical Com- 








pany, 


75 50 


7 50 


83 00 


Climax Bell Company, . 


151 00 


13 00 


164 00 


Coates Clipper Manufacturing Com- 








pany, 


179 69 


5 62 


185 31 


Coburn Stationery Company, 


105 70 


5 26 


110 96 


Commercial Reference Bureau Cor- 








poration, 


15 10 


82 


15 92 


Cyclopasdia Publishing Company, 


417 33 


14 50 


431 83 


Damon Brick Company, 


142 77 


4 28 


147 05 


Damon Safe and Iron Works Com- 








pany, 


188 75 


5 48 


194 23 


Dorchester Gas Light Company, . 


3,971 30 


92 69 


4,063 99 


Dunbar Mills Company, 


1,177 86 


84 35 


1,262 21 


E. Howard Watch and Clock Com- 








pany, 


1,292 93 


34 48 


1,327 41 


E. P. Sanderson Company, . 


226 50 


6 80 


233 30 


E. W. Noyes Company, . 


60 00 


- 


50 00 


East Douglass Co-operative Asso- 








ciation, 


18 12 


48 


18 60 


Eureka Ruling and Binding Com- 








pany, 


14 34 


— 


14 34 



1898.] PUBLIC DOCUMENT — No. 12. 


165 




Collected on 








Account of Cor- 








poration Tax 


Interest. 


Total. 




for 1896. 






Evening Gazette Company, . 


$453 00 


$45 30 


$498 30 


Everett Cycle Company, 


483 20 


15 00 


498 20 


F. E. Young Company, . 


196 30 


5 73 


2<)2 03 


Fairfield Ice Corporation, 


75 50 


2 68 


78 18 


Fifield Tool Company, . 


999 62 


21 32 


1,020 94 


Foxborough Foundry and Machine 








Company, 


151 60 


15 16 


166 76 


Frank Keene Company, . 


604 00 


16 10 


620 10 


Franklin Educational Company, . 


135 90 


17 52 


153 42 


Gallagher Express Company, 


75 50 


2 78 


78 28 


Garrett-Ford Company, . 


181 20 


5 08 


186 28 


Geo. P. Staples & Co. (incorporated), 


755 00 


75 50 


830 50 


Globe Worsted Mills, . 


483 20 


12 56 


495 76 


Gregory & Brown Company, 


302 00 


6 10 


308 10 


Greyhound Bicycle Manufacturing 








Company, 


53 45 


- 


53 45 


H. F. Ross Company, 


415 25 


11 49 


426 74 


Haydenville Manufacturing Com- 








pany, 


1,132 50 


45 30 


1,177 80 


Heliotype Printing Company, 


362 40 


8 08 


370 48 


Henry C. Hunt Company, 


83 05 


8 30 


91 35 


Henry F. Miller & Sons Piano Com- 








pany, 


951 30 


- 


951 30 


Highland Foundry Company, 


1,019 25 


68 00 


1,087 25 


Horace Partridge Company, . 


3,020 00 


220 40 


3,240 40 


Horton Manufacturing Company, . 


128 35 


3 20 


131 55 


Howe Lumber Company, 


627 55 


62 75 


690 30 


Hub Webbing Company, 


45 30 


1 20 


46 50 


Interstate Law Company, 


22 65 


67 


23 32 


J. B. Parker Machine Company, . 


135 90 


- 


135 90 


Johnson Manufacturing Company, 


4,566 24 


508 76 


5,075 00 


Kennedy & Sullivan Manufacturing 








Com pan} 7 , 


225 65 


4 38 


230 03 


Kimball Brothers Company, . 


1,510 00 


49 83 


1,559 83 


Lamprey Boiler Furnace Mouth 








Protector Company, . 


188 75 


24 78 


213 53 


Lang & Jacobs Company, 


83 05 


2 11 


85 16 


Lovell Ice Company, 


304 41 


8 21 


312 62 


Lowell Iron Company, . 


226 50 


12 87 


239 37 


Lyman & Kellogg Company, 


200 00 


- 


200 00 


Lyons Granite Company, 


205 36 


5 48 


210 84 


Manufacturers' Gazette Publishing 








Company, 


36 24 


1 66 


37 90 


Medway Water Company, 


22 65 


2 26 


24 91 


Methyl Dental Company, 


15 10 


40 


15 50 


Model Manufacturing Company, . 


211 40 


21 25 


232 65 


Morrill Brothers Company, . 


302 00 


30 20 


332 20 


N. C. Boutelle Furniture Company, 


84 56 


2 36 


86 92 


Natick Gas Light Company, . 


273 31 


23 78 


297 09 










Company of Massachusetts, 


66 06 


6 18 


72 24 


New York Shoe Manufacturing 








Company (corporation), 


755 00 


17 37 


772 37 



166 



ATTORNEY-GENERAL'S REPORT. 



[Jan. 





Collected on 








Account of Cor- 








poration Tax 


Interest. 


Total. 




for 1896. 






Newburyport & Amesbury Horse 








Railroad Company, 


$554 17 


§ 15 52 


$569 69 


Norton Iron Company, . 


906 00 


22 95 


928 95 


Old Corner Wall Paper Company, 


226 50 


11 64 


238 14 


CNeill Shoe ComjDan} 7 , . 


75 50 


2 41 


77 91 


Oriental Coffee House Company, . 


166 10 


3 60 


169 70 


Parker Brothers Company, . 


543 60 


- 


543 60 


Paul Askenasy Company, 


75 50 


8 10 


83 60 


Pearson Box and Moulding Com- 








pany, 


79 27 


8 00 


87 27 


Prauker Manufacturing Company, 


181 20 


18 52 


199 72 


Putnam Company, .... 


226 50 


7 26 


233 76 


Quaboag Steamboat Company, 


46 20 


4 85 


51 05 


Quincy Cycle Company, 


60 00 


- 


60 00 


Quinsigamond Lake Steamboat 








Company, 


34 38 


1 00 


35 38 


Quincy Shoe Company, . 


181 20 


3 65 


184 85 


R H. Long Shoe Manufacturing 








Company, 


75 50 


2 81 


78 31 


Roxbury Gas Light Company, 


99 66 


2 17 


101 83 


Salem Gazette Company, 


60 40 


2 42 


62 82 


Shady Hill Nursery Company, 


578 33 


57 87 


636 20 


Simpson Spring Company, 


403 72 


28 26 


431 98 


Smith and Gardner Supply Com- 








pany, 


75 50 


1 81 


77 31 


Smith-Carleton Iron Company, 


1,140 05 


28 88 


1,168 93 


South Boston Gas Light Company, 


149 49 


3 23 


152 72 


Southbridge Water Supply Com- 








pany 


839 56 


8 39 


847 95 


Springfield Elevator and Pump 








Company, 


1,026 80 


33 53 


1,060 33 


Stiles & Winslow Leather Company, 


868 25 


8 68 


876 93 


Standard Horse Shoe Company, . 


299 73 


8 09 


307 82 


Sumner Drug and Chemical Com- 








pany, 


181 20 


23 55 


204 75 


Taunton Evening News, 


37 75 


3 77 


41 52 


Taunton Herald Company, . 


26 42 


2 00 


28 42 


Thomas Manufacturing Company, 


166 10 


- 


166 10 


Thompson & Odell Company, 


347 30 


44 12 


391 42 


Turner's Falls Lumber Company, . 


417 13 


13 62 


430 75 


Tyler & Moulton Shoe Company, . 


257 20 


- 


257 20 


Union Furniture Company, . 


68 70 


68 


69 38 


Union Loan and Trust Company, . 


755 00 


- 


755 00 


University Press, John Wilson & 








Sons (incorporated), . 


201 58 


5 38 


206 96 


Voorhees Electric Company, . 


75 50 


2 27 


77 77 


W. C. Young Manufacturing Com- 








pany 


251 41 


6 70 


258 11 


W. S. Hill Electric Company, 


220 88 


6 26 


227 14 


Wade & Reed Company, 


1,510 00 


177 50 


1,687 50 


Westfield Brick Company, 


64 14 


1 70 


65 84 


Weymouth Seam-face Granite Com- 








pany, 


98 90 


9 89 


108 79 



1898.] 



PUBLIC DOCUMENT — No. 12, 



167 



Collected on 
Account of Cor- 
poration Tax 
for 1896. 



Whittemore Woodbury Company 
Whittier Cotton Mills, . 
William H. King Sons Company, 
William J. Dinsmore Corporation 
Woodward & Brown Piano Com 



pany, 

Worcester Marble and Granite 

Company, .... 
Worcester Reed Chair Company, 
Wright Company, . 
Ziegler Electric Company, . 



$90 60 

400 00 

83 05 

151 00 

339 75 

98 15 

45 30 

192 52 

271 80 



$3 35 

10 80 
4 53 

9 96 

10 20 
4 30 

6 78 



$93 95 

400 00 

93 85 

155 53 

349 71 

108 35 

49 60 
192 52 
278 58 



$62,098 47 



$2,966 82 



$55,065 29 



Miscellaneous Collections. 

Bay State Gas Company, inspector of gas and gas meter tax 

1896, interest and costs, . 
Boston Gas Light Company, ibid., 
Dorchester Gas Light Company, ibid. 
Natick Gas Light Company, ibid., 
Roxbury Gas Light Company, ibid., 
South Boston Gas Light Company, ibid., 
Parker Brothers Company, tax, 1895, interest 
Allen Fan Company, tax for 1895, interest, 
Progressive Co-operative Association, tax, 1895, interest, 
A. W. Warren Company, fee required upon filing of certificate 

of condition under Pub. Sts c. 106, § 54, . 
Atlantic Telegraph Company, ibid., 
Blanchard Machine Company, ibid., . 
The Boston and Sandwich Glass Company, ibid 
Boylston Pharmacy (Incorporated), ibid., . 
Fairfield Ice Corporation, ibid., . 
Johnson Manufacturing Company, 
New England Dredging Company, 
Parker, Sampson & Adams Company, . 
Paul Askanasy Company, .... 
Watertown Water Supply Company, . 
Boston Blower Company, .... 
Natick Gas and Electric Company, 
Milton Light and Power Company, 
Methyl Dental Company, ibid., . 

Douglas Mills, ibid., 

Sutherland Drug and Medicine Company, ibid., 
United States Compound Oxygen Company, ibid 



$276 68 


905 93 


116 65 


4 90 


130 27 


78 17 


653 25 


103 78 


68 68 


5 00 


5 00 


10 00 


5 00 


5 00 


5 00 


5 00 


5 00 


5 00 


5 00 


5 00 


5 00 


5 00 


5 00 


10 00 


5 00 


5 00 


5 00 



168 



ATTORNEY-GENERAL'S REPORT. 



[Jan. 



772 


50 


,563 57 


216 96 


16 


95 


266 


34 


136 89 


17 


91 


1 


50 



123 36 



A. M. Niles Shoe Company, ibid., $5 00 

Bay State Gas Company, tax, 1896, interest and costs, on account 
of expenses of Gas and Electric Light Commissioners, 

Boston Gas Light Company, ibid., 

Dorchester Gas Light Company, ibid., 

Milton Light and Power Company, ibid., 

Roxbury Gas Light Company, ibid., . 

South Boston Gas Light Company, ibid., 

Worcester & Shrewsbury Railroad Company, tax, 1896, on ac 
count of Railroad Commissioners' expenses, . 

Worcester & Shrewsbury Street Railway Company, ibid., . 

Continental Mutual Fire Insurance Company, failure to pay in 
surance tax for 1896, 

Adams Gas Light Company, penalty for failure to file annual 
report for 1896, required by Sts., 1886, c. 346, § 2, . 

Amesbury and Salisbury Gas Company, ibid., 

Brookline Gas Light Company, ibid., .... 

Chicopee Gas Company, ibid., 

Edison Electric Illuminating Company of Brockton, ibid 

Milton Light and Power Company, ibid , . 

Northampton Electric Lighting Company, ibid., . 

Suburban Light and Power Company, ibid., 

Winchendon Electric Light and Power Company, ibid., 

Isaiah Reed, over-payment by Treasurer of the Commonwealth, 

Summit Knitting Company of Philmont, N.Y., claim of Massa- 
chusetts Reformatory for goods sold to company, . 

Edwards & Co. of New York, ibid., 

Amherst Gas Compan} T , penalty for violation of Pub. Sts., c. 61, 
§ 14 (this penalty was collected by District Attorney Hammond 
and turned over to the town of Amherst, as the statute pro- 
vides), 100 00 

Hampden Watch Company, tax, 1895, 817 46 



25 00 


10 00 


480 00 


5 00 


10 00 


145 00 


5 00 


10 00 


5 00 


35 00 


500 00 


43 34 



$7,750 09 



1898.] 



PUBLIC DOCUMENT — No. 12. 



169 





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170 



ATTORNEY-GENERAL'S REPORT. 



[Jan. 



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1898.] 



PUBLIC DOCUMENT — No 12. 



171 





























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174 ATTORNEY-GENERAL'S REPORT. [Jan. 



RULES OF PRACTICE IN INTERSTATE 
RENDITION. 



Every application to the governor for a requisition upon the ex- 
ecutive authority of any other State or Territory, for the delivery 
up and return of any offender who has fled from the justice of this 
Commonwealth, must be made by the district or prosecuting attor- 
ney for the county or district in which the offence was committed, 
and must be in duplicate original papers, or certified copies thereof. 

The following must appear by the certificate of the district or 
prosecuting attorney : — 

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

{b) That, in his opinion, the ends of public justice require that 
the alleged criminal be brought to this Commonwealth 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 re- 
quest, 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 enforc- 
ing 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. 



1898.] PUBLIC DOCUMENT — No. 12. 175 

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

(i) If the offence charged is not of recent occurrence, a satis- 
factory reason must be given for the delay in making the applica- 
tion. 

1. In all cases of fraud, false pretences, embezzlement or for- 
gery, when made a crime by the common law, or any penal code 
or statute, the affidavit of the principal complaining witness or in- 
formant, that the application is made in good faith, for the sole 
purpose of punishing the accused, and that he does not desire or 
expect to use the prosecution for the purpose of collecting a debt, 
or for any private purpose, and will not 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 re- 
quested 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 dupli- 
cate, 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 accompa- 
nied 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 appli- 
cation. 

5. The official character of the officer taking the affidavits or 
depositions, and of the officer who issued the warrant, must be 
duly certified. 

6. Upon the renewal of an application, — for example, on the 
ground that the fugitive has fled to another State, not having been 
found in the State on which the first was granted, — new or certi- 



176 ATTORNEY-GENERAL'S REPORT. [Jan. '98. 

fied copies of papers, in conformity with the above rules, must be 
furnished. 

7. In the case of any person who has been convicted of any 
crime, and escapes after conviction, or while serving his sentence, 
the application may be made by the jailor, 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 cir- 
cumstances attending the same. 

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