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 Me 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 ua 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 alreadj7 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 wrhen 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 bjT 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 UA 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. Answrer 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. AnswTer 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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PUBLIC DOCUMENT — No 12.
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PUBLIC DOCUMENT — No. 12,
173
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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.
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