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

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



Cnmmtrnfofalt!^ ai Hassafljttsttts. 



REPORT 



ATTOEISTET- QENEKAL 



Year ending January 17, 1900. 



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THE 



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18 Post ur.^^.^. 
1900. 



TABLE OF CONTENTS. 



Roster, vii 

Appropriation and Expenditures, viii 

Cases attended to by this Office, ix 

Capital Cases, x 

The Death Penalt}- xv 

Hours of Labor of Women and Minors, xvi 

Constitutional Questions before the Supreme Judicial Court, . . xviii 

Revision of Statutes, xviii 

Collateral Inheritance Tax, xix 

Distribution of Estates of Deceased Persons, xx 

Recommendations of Previous Years, xxi 

Publication of Official Oj^inions, xxi 

Opinions, 1 

Opinions upon Applications for Leave to file Informations, . . 105 

Informations at the Relation of the Treasurer, .... 109 

Informations at the Relation of the Commissioner of Corporations, 113 
Informations at the Relation of Private Persons, . . . .114 

Applications not granted, 115 

Grade Crossings, 116 

Corporate Applications for Dissolution, 125 

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

Corporations required without Suit to file Certificate of Condition, 128 

Collateral Inheritance Tax Cases, 130 

Public Charitable Trusts, 143 

Land Damage Cases arising from the Alteration of Grade Cross- 
ings, 144 

Suits conducted in Behalf of State Boards and Commissions, . . 146 

Metropolitan Park Commission, 146 

Metropolitan Sewerage Commission, 150 

Metropolitan Water Board, 151 

Massachusetts Highway Commission, . . . . . 155 

Board of Harbor and Land Commissioners, .... 155 

MisceHaneous Cases from Above Commissions, . . . 155 

State Board of Charity, . 156 

Miscellaneous Cases, 158 

Corporation Tax Collections, 169 

Miscellaneous Collections, 174 

Extradition and Interstate Rendition, 176 

Rules of Practice in Interstate Rendition, 179 



Comm0ithj£aIt!^ ai P^assar^s^tts. 



Office of the Attorney-General, 
Boston, Jan. 17, 1900. 

To the Honorable the President of the Senate. 

I have the honor to transmit herewith my report for the- 

year ending this day. 

Very respectfully, 

HOSEA M. KNOWLTON, 

Attorney- General. 



C0mm0nto^aIt^ ai gtassatl^us^tts. 



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



Attorney- General. 
HOSEA M. KNOWLTON of New Bedford. 

Assistants. 
FREDERICK E. HURD of Boston. 
Special Assignments. — Heads of Departments. 

Metropolitan Park Commission. 
Abolition of Grade Crossings. 

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

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

FRANKLIN T. HAMMOND of Cambridge. 
Special Assignments. — Metropolitan Park Commission. 

Massachusetts Highway Commission. 
State Board of Charity. 
State Board of Insanity, 
Public Charitable Trusts. 

ARTHUR W. DeGOOSH of Cambridge. 
Special Assignments — Collateral Inheritance Tax. 
Receiverships. 
Commissions and State Boards other than 

those enumerated above. 
Extradition and Interstate Rendition. 
Corporations. 
Collections. ^ 



Clerk. 
LOUIS H. FREESE of Stoneham. 



viii ATTORNEY-GENERAL'S REPORT. [Jan. 1900. 



Statement of Appropriation and Expenditures. 
Appropriation for 1899 $36,000 00 



Expenditures. 



For law library, 

For salaries of assistants, 

For additional legal services, 

For clerk and stenographers, 

For office expenses, 

For court expenses,* 

Total expenditures, 
Costs collected. 

Net expenditure, 



$926 06 

12,750 00 

2,231 96 

4,363 25 

3,122 72 

1,780 70 

$25,174 69 

824 48 

$24,350 21 



* Of this amount, $824.48 has been collected as costs of suits and paid to the 
Treasurer of the Commonwealth. 



Cnmmnnto^altl^ of Ulassarljitsrfts* 



Office of the Attorney-General, 
Boston, Jan. 17, 1900. 
To the General Court. 

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 1,378 are tabulated below : — 

Bastardy complaints, 6 

Collateral inheritance tax cases, 184 

Corporate collections made without suit, 117 

Corporation returns enforced without suit, 187 

Dissolutions of corporations, voluntary petitions for, ... 56 

Extradition and interstate rendition, 47 

Grade crossings, petitions for abolition of, 141 

Informations at the relation of the Commissioner of Corporations, 25 
Informations at the relation of private persons, .... 7 
Informations, applications for, considered and not granted, . . 5 
Informations at the relation of the Treasurer and Receiver-Gen- 
eral, 112 

Indictments for murder, 18 

Land-damage cases arising through the alteration of grade cross- 
ings, 22 

Land-damage cases arising from the taking of land by the Harbor 

and Land Commissioners, 4 

Land-damage cases arising from the taking of land by Massachu- 
setts Highway Commission, 9 

Land-damage cases arising from the taking of land by the Metro- 
politan Park Commission, 103 

Land-damage cases arising from the taking of land by the Metro- 
politan Sewerage Commission, 21 

Land-damage cases arising from the taking of land by the Metro- 
politan Water Board 84 

Miscellaneous cases arising from the work of the above-named 

commissions, 9 

Miscellaneous cases, . . 190 

Public charitable trusts, 17 

Settlement cases for support of insane paupers, .... 14 



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 : — 

John H. Chance, alias John H. Schultze, and Arthur 
Hagan, of Boston, indicted in Suifolk County, June, 1898, 
for the murder of Charles L. Russell, at Boston, April 4, 

1898. On Aug. 19, 1898, Chance was arraigned and pleaded 
not guilty. Hiram P. Harriman and G. Philip Wardner 
were assigned by the court as his counsel. Hagan was 
arraigned Oct. 14, 1898, and pleaded not guilty, and George 
R. Swasey and Florence F. Sullivan were assigned by the 
court as his counsel. On Feb. 6, 1899, both prisoners were 
tried together by a jury before Bishop and Stevens, JJ., 
a verdict of guilty of murder in the second degree was ren- 
dered against Chance, and Hagan was acquitted. Excep- 
tions were filed by counsel for Chance, and were argued 
before the Supreme Judicial Court at Boston, June 27, 

1899. The exceptions were overruled Sept. 7, 1899. On 
Sept. 11, 1899, Chance was sentenced to State Prison for 
life. The trial of the case was conducted by the Attorney- 
General, ably assisted by Michael J. Sughrue, assistant dis- 
trict attorney. 

Natlino Guliano, alias Natale Yuliano, of Spring- 
field, indicted in Hampden County, September, 1898, for 
the murder of Pietro Fazio, at Springfield, June 12, 1898. 
He was arraigned Nov. 30, 1898, and pleaded not guilty. 
S. S. Taft, Esq., and James E. Dunleavy, Esq., were as- 
signed as his counsel. May 18, 1899, 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 State Prison for life. The 
case was in charge of Charles L. Gardner, district attorney. 

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

Felix P. Canfield of Boston, indicted in Sufib k County, 
May, 1899, for the murder of Grace D. Canfield, at Boston, 



1900.] PUBLIC DOCUMENT — No. 12. xi 

March 24, 1899. He was arraigned July 8, 1899, and 
pleaded guilty of murder in the second degree. This plea 
was accepted by the Commonwealth, and he was thereupon 
sentenced to State Prison for life. The case was in charge 
of Oliver Stevens, district attorney. 

John Roberts of Lawrence, indicted in Essex County, 
May, 1899, for the murder of Maria Roberts, at Lawrence, 
March 4, 1899. He was arraigned May 18, 1899, and 
pleaded not guilty. William J. Bradley and Frederick F. 
Sherman were assigned by the court as counsel for the 
prisoner. Nov. 3, 1899, 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 there- 
upon sentenced to State Prison for life. The case was in 
charge of W. Scott Peters, district attorney. 

Peter F. King of Sturbridge, indicted in Worcester 
County, October, 1899, for the murder of Mary King, at 
Sturbridge, Sept. 12, 1899, He was arraigned Oct. 30, 
1899, and pleaded not guilty. Charles Haggerty and Jere- 
miah Kane were assigned by the court as counsel for the 
prisoner. On Oct. 30, 1899, he was tried before Sherman 
and Hopkins, JJ., and a verdict of not guilty was rendered 
by reason of insanity. The prisoner was thereupon, under 
the provisions of Pub. Sts., c. 214, § 20, committed to the 
State Asylum for Insane Criminals at Bridgewater. The 
trial of the case was conducted by Rockwood Hoar, district 
attorney. 

William Woods of Worcester, indicted in Worcester 
County, in January, 1899, for the murder of Mary A. 
Woods, at Worcester, Nov. 14, 1898. He was arraigned 
Jan. 18, 1899, and pleaded not guilty. John E. Sullivan 
and C. M. Thayer were assigned by the court as counsel for 
the prisoner. No further proceedings were taken in this 
case, the prisoner having died in Worcester jail in May, 
1899. The case was in charge of Rockwood Hoar, district 
attorney. 



xii ATTORNEY-GENERAL'S REPORT. [Jan. 

John W. Seery and Joseph E. Seery of Dedham, in- 
dicted in Norfolk County, in September, 1899, for the 
murder of Ellen Seery, at Dedham, July 2, 1899. They 
were arraigned Sept. 18, 1899, and pleaded not guilty. 
Thomas E. Grover and Edwin C. Jenney were assigned by 
the court as counsel for John W. Seery, and Asa P. French 
and Benjamin H. Greenhood as counsel for Joseph E. Seery. 
On Dec. 11, 1899, the defendants were tried by a jury before 
Braley and Sheldon, JJ., resulting, on Dec. 21, 1899, in a 
verdict of not guilty as to each. The trial of the case was 
conducted by Robert O. Harris, district attorney. 

Edwin Ray Sxow^ of Yarmouth, indicted in Barnstable 
County, October, 1899, for the murder of James T. Whitte- 
more, at Yarmouth, Sept. 13, 1899. He was arraigned 
Oct. 18, 1899, and pleaded not guilty. Thomas C. Day 
and Raymond A. Hopkins were assigned by the court as 
counsel for the prisoner. On Jan. 1, 1900, he retracted his 
plea of not guilty, and pleaded guilty of murder in the first 
degree. The plea was accepted by the Commonwealth, and 
he was thereupon sentenced to sufier the penalty of death in 
the manner provided by St. 1898, c. 326. The case was 
in charge of the Attorney-General, assisted by L. Le B. 
Holmes, district attorney. The defendant was seventeen 
years and two months of age when the murder was 
committed. In view of this fact, I recommended to the 
Governor and Council that the sentence be commuted to 
imprisonment for life. This recommendation was considered 
favorably by the Governor and Council, and on January 11 
the sentence was commuted to imprisonment for life. 

The following indictments for murder are now pending : — 

Joseph Lavey of Boston, indicted in Suffolk County, 
September, 1899, for the murder of Mary Ann Painting, at 
Boston, Aug. 16, 1899. He was arraigned Nov. 20, 1899, 
and pleaded not guilty. Thomas J. Barry and Harry J. 
Jaquith have been assigned by the court as counsel for the 
defendant. 



1900.] PUBLIC DOCUMENT — No. 12. xiii 

William H. F. Kelley of Lowell, indicted in Middle- 
sex County, October, 1899, for the murder of Theresa 
Kelley, at Lowell, June 30, 1899. On Nov. 8, 1899, he 
was arraigned, and pleaded not guilty. Nathan D. Pratt 
and eTohn J. Harvey of Lowell have been assigned by the 
court as counsel for the defendant. 

Hal a. Hollingsworth of Douglas, indicted in Worces- 
ter County, October, 1899, for the murder of Mertice Mabel 
Leonard, at Douglas, Oct. 8, 1899. He was arraigned 
Oct. 30, 1899, and pleaded not guilty. Herbert Parker and 
John E. Abbott have been assigned by the court as counsel 
for the defendant. 

Karop Kapigian of Fitchburg, indicted in Worcester 
County, October, 1899, for the murder of Nishan Harou- 
tinian, at Fitchburg, Aug. 17, 1899. On Oct. 30, 1899, he 
was arraigned, and pleaded not guilty. John H. McMahon 
and Daniel Phalen have been assigned by the court as coun- 
sel for the prisoner. The case has been assigned for trial at 
Fitchburg on the fifth day of February. 

Martha Williams of Attleborough, indicted in Bristol 
County, November, 1899, for the murder of Miletta Wil- 
liams, at Attleborough, Oct. 4, 1899. On Nov. 23, 1899, 
he was arraigned, and pleaded not guilty. Percy A. Bridg- 
ham of Boston appears for the defendant. 

Joseph A. Hill of Barnstable, indicted in Barnstable 
County, October, 1899, for the murder of Mary T. Hill, at 
Barnstable, June 16, 1899. On Oct. 18, 1899, he was ar- 
raigned, and pleaded not guilty. Henry H. Baker, Jr., and 
Charles F. Chamberlayne have been assigned by the court 
as counsel for the defendant. 

LuiGi Storti of Boston, indicted in Suffolk County, 
December, 1899, for the murder of Michele Calucci, at 
Boston, Nov. 7, 1899. The defendant has not yet been 
arraigned. 



xiv ATTORNEY-GENERAL'S REPORT. [Jan. 

William J. Young of Randolph, indicted in Norfolk 
County, December, 1899, for the murder of Benjamin F. 
Coolbroth, at Randolph, Sept. 9, 1899. On Dec. 27, 1899, 
he was arraigned, and pleaded not guilty. A. P. Worthen 
and Albert E. Avery have been assigned by the court as 
counsel for the defendant. 

Antonio Pepe, indicted in Suffolk County, March, 1899, 
for the murder of Bernardino Minichiello, at Boston, Oct. 
24, 1898. Soon after the homicide was committed Pepe 
went to Italy, where he has since remained. At the request 
of the United States he has been arrested and held for trial 
there. Depositions for that purpose have been prepared by 
Oliver Stevens, district attorney, and forwarded to the Ital- 
ian court, to be used in his trial. 

The foregoing does not include indictments against per- 
sons who have not been arrested. (Vid. Pub. Sts., c. 213, 
§12.) 

The Case of Di Blast. 

Antonio Di Blasi was indicted in Suffolk County on the 
first Monday of June, 1898, for the murder of James M. 
Ellis, in Boston, May 23, 1898. The case was not included 
in the report of indictments found during that year, for the 
reason that the defendant had not been arrested. He escaped 
from the jurisdiction, and in February, 1899, he was dis- 
covered to be living in Italy, of which country he is a 
citizen. At the request of the United States he was there 
arrested and held for the murder. After some correspond- 
ence with the Department of State and with the Ambassador 
of the United States at Rome, officers Watts and Rosatto of 
the Boston police force were sent to Italy with a formal re- 
quest from the government of the United States for his ex- 
tradition. There are no treaty stipulations requiring such 
extradition, and the Italian government finally declined to 
accede to the request, but offered to try Di Blasi in its 
own courts. 

Anticipating the possibility of such refusal and that such 
an offer might be made, the officers had also taken with 



1900.] PUBLIC DOCUMENT — No. 12. xv 

them such depositions and affidavits as, under the form of 
procedure in the courts of Italy, would be admissible to 
prove his guilt ; and upon those documents, supplemented 
by the testimony of the officers, Di Blasi was tried in Mes- 
sina, convicted of the murder, and sentenced to be impris- 
oned for a term of six years. 

The Death Penalty. 

I was led to recommend that the death sentence of Edwin 
Kay Snow, the seventeen-year-old murderer, whose case is 
reported above, be commuted to imprisonment for life, not 
because of the previous good character of the prisoner, nor 
because there were any mitigating circumstances in the 
homicide itself, but rather because I did not believe that 
public sentiment in Massachusetts would tolerate the execu- 
tion of a boy of this age, whatever his previous character and 
however grave the crime he had committed. The Council 
were unanimous in acting upon my recommendation, and, 
so far as I can learn, the sentiment of the people of the 
Commonwealth is in full accord with the result. 

If it be true that the execution of a boy of seventeen years 
would not be tolerated by the community, it is worthy of 
consideration whether the law, which, as it stands, requires 
prosecuting officers to ask for and the courts to impose sen- 
tence of death upon all persons, of whatever age, convicted 
of murder in the first degree, should not be amended, so 
that it may conform to the existing sentiment of the com- 
munity. 

While the reasons for also amending the law as to women 
stand upon different considerations, and are mostly senti- 
mental in their nature, it is nevertheless a fact that no woman 
has suffered the penalty of death in Massachusetts for many 
years, and, so far as I can learn, during the present century. 
I doubt very much whether a case could occur where the 
Executive would not commute a death sentence against a 
woman. 

It is far from probable that the people of Massachusetts 
would at present favor the total abolition of capital punish- 
ment, although there are many whose views go to that ex- 



xvi ATTORNEY-GENERAL'S REPORT. [Jan. 

tent; but as to women, and minors under the age of eigh- 
teen, I do not hesitate to recommend that the law requiring 
the punishment of death be amended, so that, upon convic- 
tion of murder in the first degree, such persons shall be 
sentenced to imprisonment for life. 



The Statutes regulating the Hours of Labor of 
Women and Minors. 

It was recently reported to me that, in consequence of 
being employed by day in one mill and in the evening in 
another mill, women and perhaps minors were being in fact 
employed in all more than fifty-eight hours in one week. 
This being a clear violation of the spirit of the statutes re- 
lating to the employment of such persons, I took active 
measures to prevent its continuance. The subject, however, 
is one of some diflSculty, and the recent practice of textile 
factories to run their mills in the evening, and the failure of 
the laws as they stand adequately to deal with such a prac- 
tice, make it, in my judgment, my duty to call the matter 
to the attention of the Legislature. 

The clear intent of the law is to limit the hours of labor 
of women and children in manufacturing establishments. It 
was undoubtedly enacted in the belief that the welfare, not 
merely of such employees, but of the community, would not 
be promoted by allowing women and children to exhaust 
their energies and endanger their health by the long days of 
labor that formerly prevailed in the Commonwealth, and still 
prevail in some States. There is no statute relating to the 
hours of labor of men, and it is doubtful whether any such 
statute would be within the jurisdiction of the Legislature. 
It happens, however, that it is not profitable to run textile 
mills unless women are employed, so that the statute oper- 
ates as a practical prohibition against the employment of 
any person, male or female, in such mills for more than 
fifty-eight hours a week ; and in seasons of prosperity, like 
that which is now being enjoyed, there is more or less res- 
tiveness among manufacturers, and in some cases even 
among employees, on account of the strict provisions of the 
statute. 



1900.] PUBLIC DOCUMENT — No. 12. xvii 

But, although the spirit of the law is the prevention of 
overwork by women and children, it does not seek to punish 
the employee, but only the employer. It only prohibits the 
latter from employing a woman or minor under the age ot 
eighteen more than fifty-eight hours in any one week. It is 
scarcely necessary to say that under this law no employer 
can be held to know whether a person employed by him 
has been employed elsewhere, so long as he himself does not 
exceed the statutory limit ; and that he cannot be prosecuted 
merely because the woman employed by him in fact works 
(including work elsewhere) more than fifty-eight hours 
during the week. 

I felt constrained so to advise the officers in charge of 
such matters. But, as the statute requires in strict terms 
the posting in each room of a printed notice stating the hours 
of labor required of women (and minors) employed in that 
room, and as the running of the mills in the evening neces- 
sitates the posting of two notices, each stating the number 
of hours of labor required of women in the room in which 
they were posted, and as the two notices together require 
much more than fifty-eight hours of labor, and as, further, 
the object of the notice is to make it easy for the officers to 
prosecute for violations of the law, it is a serious question 
in my mind whether the law contemplates or permits two 
such notices, and whether the employer may not be prose- 
cuted for employing women at all under such double notices. 
I accordingly advised the officers to make complaints there- 
for in any case where they found women were being em- 
ployed evenings who worked there or elsewhere during the 
day. I did not advise complaints against all mills running 
during the evening; for it has long been the practice for 
manufacturers in various cities of the Commonwealth to run 
their mills evenings, employing women who have not worked 
during the day, and, so far as I know, without objection or 
criticism. 

I believe the actual employment of the same women da}'" 
and evening has ceased. But the law as it stands does not 
adequately deal with the case of mills running at night, for, 
assuming that they may lawfully so run, and may employ 
women, it is difficult, if not impossible, for the officers to 



xviii ATTORNEY-GENERAL'S REPORT. [Jan. 

know whether the women so employed evenings are being 
employed in the day time. I recommend that suitable legis- 
lation be enacted to make clear the meaning of the law, and 
to remove the difficulties I have suggested. 

constitutioxal questions before the supreme judicial 

Court. 

Among the cases conducted by this office before the 
Supreme Judicial Court, two involved the constitutionality 
of acts of the General Court. One concerned the habitual 
criminal act (St. 1887, c. 435) ; the other the land registra- 
tion act, commonly called the Torrens act (St. 1898, c. 562), 
The constitutionality of both was upheld, Lathrop and 
Loring, JJ., dissenting in the latter case. Attempts have 
been made both in Ohio and Illinois to enact a land regis- 
tration law which should be effectual in its provisions. The 
law enacted by the Legislature of Ohio was declared uncon- 
stitutional. The first statute in Illinois was also held un- 
constitutional, and the second statute drawn in consequence 
of the decision of the court contains no provisions like those 
contained in the Massachusetts statute making titles good 
against all the world. It is not improbable that the Massa- 
chusetts statute will be the basis of similar legislation 
throuofhout the United States. 

The opinion of the chief justice points out some particu- 
lars in which the statute may be wisely amended. I propose 
hereafter to submit a bill tending in that direction. 

The statute regulating the height of buildings upon Copley 
Square (St. 1898, c. 452) was also declared constitutional. 
This case was conducted by counsel for the relators. 

Revision or the Statutes. 
Res. 1896, c. 87, provided for the appointment of a 
commission to revise, consolidate and arrange the Public 
Statutes. The commissioners so appointed have prosecuted 
their labors with diligence and fidelity. The work of in- 
corporating the legislation since the Public Statutes is being 
supplemented, as required under the provisions of the 
resolve authorizing the commission, by the substitution of 



1900.] PUBLIC DOCUMENT — No. 12. xix 

lucid and terse expressions for redundant and ambiguous 
language, by curing defects, by reconciling inharmonious 
provisions and by eliminating obsolete laws. This often re- 
quires minute and prolonged investigation, not only in the 
books but also in conference with the administrative officers. 
About three-quarters of the work is substantially completed, 
and I am informed that the commission will be able to pre- 
sent its full report to the Legislature of 1901. The report 
will thus cover a period of twenty years, the same as in the 
Public Statutes, and will have taken about the same time as 
was taken by the commissioners on the revision in 1836 and 
1860, who were appointed respectively in 1832 and 1855. 

The labor of the present commission covers a much larger 
and more intricate mass of material than any former revision. 
The laws embodied in the revision of 1836 were all con- 
tained, as I am informed, in volumes of 1,800 pages; in 
that of 1882 in volumes of 2,820 pages; while the legisla- 
tion since the Public Statutes covers 6,017 pages, 3,526 of 
which are included in the supplements and 2,481 in the Blue 
Books of 1896-99 inclusive. 



Collateral Inheritance Tax. 

The Supreme Judicial Court has rendered a number of 
decisions concerning the taxability under the collateral in- 
heritance tax law (St. 1891, c. 425) of the property in 
other jurisdictions of resident decedents and of the property 
in Massachusetts of non-resident decedents, and the law upon 
these matters may now be said to be fairly well settled. It 
has been decided that the personal property of a resident 
decedent, which was in fact without the Commonwealth at 
the time of the death, was nevertheless liable to the collateral 
inheritance tax. Frothing hmn y . jShaiv, 174 Mass., Decem- 
ber, 1899. It has been further held that real and personal 
estate of a non-resident decedent which was in this Com- 
monwealth at the date of his death is taxable. Callahan v. 
Woodbridge, 171 Mass. 595. Also that shares of stock in 
corporations organized under the laws of Massachusetts, 
shares of stock in national banks located in Massachusetts, 
and shares of stock in railroad corporations incorporated 



XX ATTORNEY-GENERAL'S REPORT. [Jan. 

under the laws of Massachusetts and also under the laws of 
other States, owned by non-resident decedents, are taxable 
in this Commonwealth, whether the certificates of such stock 
are in this State or elsewhere at the date of the death of the 
decedent. Greves v. Shaw, 173 Mass. 205 ; Moody v. 
Shaio, 173 Mass. 375. 

It sometimes happens, however, that shares in Massachu- 
setts corporations owned by non-resident decedents at the 
time of their death are transferred by foreign executors or 
administrators without payment of the tax to which such 
shares are liable. By the New York St. of 1896, c. 908, 
§ 228, it is provided that, if a foreign executor, administra- 
tor or trustee shall transfer stock of his decedent, which is 
liable to a collateral inheritance tax, the tax shall be paid to 
the Treasurer on such transfer ; and that no safe deposit, 
bank, nor any person, holding securities or assets of a dece- 
dent, shall deliver the same to such executor or administra- 
tor unless notice of the time and place of such intended 
transfer be served upon the Treasurer five days prior to such 
transfer ; and that the Treasurer may personally or by rep- 
resentative examine such securities or assets at the time of 
such delivery ; and that failure to serve such notice or to 
allow such examination shall render the corporation or per- 
son so negligent liable to the payment of the tax due upon 
such securities or assets. 

I recommend that similar legislation be enacted as to per- 
sons and corporations within this Commonwealth. 



Distribution of the Estates of Deceased Persons. 

St. 1899, c. 479, is an act to revise the laws relative to 
the distribution of the estates of deceased persons. It is 
not a mere codification of existing laws upon the subject, 
but introduces some provisions radically new. The act does 
not take efi'ect until April of this year. 

It can scarcely be said that the act is so clearly drawn as 
to be easily understood by the ordinary man ; or that it fully 
accomplishes its professed purpose of equalizing the rights of 
husbands and wives in the descent and distribution of prop- 
erty real and personal. The statute was enacted on the 



1900.] PUBLIC DOCUMENTING. 12. xxi 

closing day of the session, and was the last public act of the 
session. It is probable that it would not have passed, and 
perhaps would not have been approved, but for the fact that, 
as it was not to take effect until after the meeting of this 
Legislature, there would be time to revise and perfect its 
provisions before it became operative. 

Certain amendments intended to simplify and improve the 
act have been prepared by those who were instrumental in 
procuring its passage, which have been submitted to me ; 
and I recommend their enactment before the time when the 
original act takes effect. 

Recommendations in Previous Reports. 

I resubmit sundry recommendations made in previous re- 
ports of the Attorney-General, to which reports I beg to 
refer for the reasons therefor : — 

1. That exemptions from jury duty be limited to those 
whose occupations are incompatible with jury service ; and 
that the term of service of jurymen be limited to two weeks. 

2. That auditor's hearings be given the same rank as the 
trial of cases in the courts appointing such officers ; and that 
the court have power to appoint a time certain for hearing 
cases before auditors, so that when such a time is appointed 
the party neglecting to attend the hearing without just cause 
may be defaulted or nonsuited, as is the case when parties 
fail to attend at the time set for trial of a case in the court 
itself. 

3. That the statutes relating to proceedings in probate 
courts be so amended that, when questions arise in which the 
parties have the right of trial by jury, parties desiring such 
a trial shall claim the same in the Probate Court ; and that 
thereupon the Probate Court shall suspend further hearings 
on the questions involved, and frame issues for the jury to 
be tried in the higher courts, without removing the case 
itself. 

Publication of Official Opinions. 

Under the authority of Resolves of 1898, chapter 95, I 
have caused to be prepared for publication a volume con- 
taining the opinions of the office heretofore published in 



xxii ATTORNEY-GENERAL'S REPORT. [Jan. 1900. 

connection with the annual reports, from 1891 to 1898 in- 
clusive, properly indexed and digested. The volume will 
be ready for distribution in a few days. 

Annexed to this report are the principal opinions sub- 
mitted during the current year. 

Respectfully submitted, 

HOSEA M. KNOWLTON, 

Attorney- Qeneral. 



OPINIONS. 



Pauper — Dead Body — Promotion of Anatomical Science. 

By St. 1898, c. 479, an act relative to the promotion of anatomical science, 

the officials named therein must surrender to medical schools, upon 

proper application and the giving of a bond as prescribed, such bodies 

as would otherwise be buried at the public expense. 

After such application, the officials cannot bury the body at the public 

expense. 
The terms of the bond, as required by the statute, prohibit the return of 
such bodies. 

Jan. 9, 1899. 
HoLLis M. Blackstone, Esq., Superintendent, State Farm. 

Dear Sir: — Your letter of Nov. 16, 1898, submits certain 
questions touching the construction of St. 1898, c. 479, § 2, en- 
titled "An Act relative to the promotion of anatomical science." 
The statute in question is mandatory. It is in substitution of 
Pub. Sts., c. 81, which was merely a permissive act. Under the 
Public Statutes, the overseers of the poor and other officials named 
in the act might, in their discretion, deliver bodies which otherwise 
must be buried at the public expense, for the purpose of dissection, 
but they were not compelled so to do. Under the statute of 1898, 
however, upon the application of the dean or other officer of a 
medical school established by law in this Commonwealth, such 
officers are required to surrender the bodies, which otherwise would 
have been buried at the public expense, for the use of such schools, 
upon the giving of a bond as prescribed in the statute. Such ap- 
plication having been made, the overseers of the poor and other 
officials enumerated have no right to bury the body at the public 
expense or to use the public funds for that purpose, but must, 
upon the receipt of a sufficient bond, deliver the body upon the 
application. 

Your letter also inquires whether it is lawful to insist, as one of 
the conditions, that the body, after being used by the medical 
school, should be returned to those from whom it was received. 
The penal condition in the bond distinctly provides, following § 2 
of the act in question, that the body must be kept for fourteen 



2 ATTOKNEY-GENERAL'S REPORT. [Jan. 

daj^s, for purposes of identification, and that, after having been 
used for the promotion of anatomical science, " the remains shall 
be decently buried." This requirement, which is one of the con- 
ditions of the bond to be given, prohibits the return of the body. 

I enclose a form of bond which I have had printed for use of 
institutions included in the provisions of the act. It is not for 
this office to fix the amount of the bond, but I see no reason why a 
penalty of one hundred dollars for each body which, I understand, 
has been the usual sum in such cases, is not sufficient. 
Very truly yours, 

HosEA M. Knowlton, Attorney- General. 



Insurance — Agent — License — Power of Attorney, 

The authority of a person duly appointed by an insurance company, and 
licensed by the insurance department of the Commonwealth, as an in- 
surance agent, is ordinarily personal in its nature, and cannot be 
transmitted to another. 

The question whether the authorized agent of an insurance company can 
delegate to another the power of countersigning a policy, is one which 
does not concern the insurance department of the Commonwealth. 

Jan. 10, 1899. 
Hon. Frederick L. Cutting, Insurance Commissioner. 

Dear^Sir : — Your letter of Dec. 16, 1898, requests the opinion 
of the Attorney-General upon the following question : " Can the 
authority of a person duly appointed by an insurance company, 
and licensed by this department as an insurance agent, be dele- 
gated to another by power of attorney ? " 

It is impossible to answer your question generally. I can con- 
ceive of cases where the agent might act by attorney, clerk or sub- 
agent. Ordinarily, however, such an appointment is personal in 
its nature, and cannot be transmitted to another. 

The specific question in your letter, intended to illustrate your 
general question, to wit, whether an authorized agent can delegate 
to another the power of countersigning a policy, is one that does 
not concern your office. Whether the i)olicy is duly issued is a 
question for the parties, not for you. 

♦ Yours very truly, 

HosEA M. Know^ltox, Attorney -General. 



1900.] PUBLIC DOCUMENT — No. 12. 3 

County Accounts — Law Library Association — Title to Money 
from County Treasury. 

The Norfolk Bar Association was organized in January, 1898, and was 

entitled to receive the full amount appropriated under Pub. Sts., c. 40, 

§ 6, as amended by St. 1882, c. 246, on the first day of January, 1899, 

although its by-laws were not approved by the Superior Court until 

November, 1898. 

Jan. 10, 1899. 

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

Dear Sir: — Pub. Sts., c. 40, § 6, provides that "County 
treasurers shall annually pay to the Law Library Associations in 
their respective counties all sums paid into the county treasuries 
during the year by the clerks of the courts, to an amount not ex- 
ceeding fifteen hundred dollars in any year." St. 1882, c. 246, 
made the amount two thousand dollars, instead of fifteen hundred 
dollars. I am informed that this statute is so construed as to make 
the amount so appropriated payable on the first day of January. 

The Norfolk Bar Association was organized in January, 1898, 
but its by-laws were not approved by the Superior Court until 
November. It was, however, in existence, and entitled to the 
provisions of law made for its benefit, in January, 1899, and is 
entitled to the amount appropriated under the section quoted. 

The fact that it has not been in existence during the entire year 
is not, in my judgment, of consequence ; nor the fact that the 
county commissioners have, under appropriations therefor, pur- 
chased books during the year for the law library. The full amount 
provided by the statutes is nevertheless payable to the association. 
Yours very truly, 

HosEA M. Knowlton, Attorney-General. 



Pau2^er — Married Woman — Settlement. 

A woman who acquired a settlement by marriage in one town, could not 
acquire one on her own account, under St. 1879, c. 242, § 2, in another, 
so that she could become a charge upon the second town, after her 
husband's settlement and her own, acquired by marriage, in the first 
town were destroyed by St. 1898, c. 425, § 2. 

Jan. 10, 1899. 

Stephen C. Wrightington, Esq., Superintendent, State Adult Poor. 

Dear Sir: — The case stated in your letters of Oct. 1, 1898, 
and Jan. 9, 1899, is this : A man, born in Massachusetts, had a 
settlement in Leominster, acquired prior to 1860. This settle- 
ment was lost by the provisions of St. 1898, c. 425, § 2. His 
wife had acquired settlement in the same place by her marriage. 



4 ATTORNEY-GEXERAL'S REPORT. [Jan. 

Her settlement also was lost by the same statute. From 1874 to 
1882, while married, she resided in Athol, without receiving aid. 

The question submitted by your letters is, whether, assuming 
that her marriage settlement was lost by St. 1898, c. 425, § 2, her 
residence in Athol gives her a settlement under St. 1879, c. 242, 
§2. 

St. 1878, c. 190, § 1, cl. 6, re-enacting St. 1874, c. 274, § 2, 
provides that "Any woman of the age of twenty-one years, who 
resides in any place within this State for five years together, with- 
out receiving relief as a pauper, shall thereby gain a settlement in 
such place." It was held in Somerville v. Boston, 120 Mass. 574, 
that this provision applied only to unmarried women. By St. 
1879, c. 242, § 2, it was further provided that the clause quoted 
should be held to apply to married women who have not a settle- 
ment derived by marriage. 

An examination of these statutes makes it evident that a mar- 
ried woman, having a settlement derived by marriage, could ac- 
quire no settlement under the clause quoted. As to such, the 
statute never existed. 

St. 1898, c. 425, § 2, declares that all settlements acquired 
prior to 1860 are defeated, ^^ provided that, whenever a settle- 
ment acquired by marriage has been thus defeated, the former 
settlement of the wife shall be thereby revived." This provision, 
however, does not revive a settlement which never existed. As 
above stated, the residence of the married woman in Athol did 
not give her any rights to a settlement : and consequently, no set- 
tlement in Athol was ever acquired by her. 

The case is different from that stated in Fitchburg v. Ashby, 
132 Mass. 495, which dealt with a statute retroactive only in so 
far as it permitted rights under the statute to be acquired prior to 
the enactment of the statute. 

Yours very truly, 

HosEA M. Knowlton, Attorney- General. 



Militia — Commissioned Officer — Provisional Militia. 

An officer holding a commission in the active mihtia, who did not enter 
the service of the United States, in the Spanish War, but accepted an 
office in the provisional militia, authorized by St. 1898, c. 428, vacated 

.; his office in the active militia by accepting the office in the provisional. 

Jax. 10, 1899. 
Maj.-Gen. Samuel Dalton, Adjutant- Geriej-al. 

Dear Sir: — Your letter of Nov. 18, 1898, requires the opinion 
of the Attorney-General upon the following question, to wit : 



1900.] PUBLIC DOCUMENT — No. 12. 5 

** Does an officer of the militia, holding a commission in the active 
militia, who does not enter the service of the United States, and 
who accepts a commission in the provisional militia, authorized 
under the provisions of chapter 428, Acts of 1898, vacate his 
former commission on accepting the latter? " 

The provisional companies, battalions and regiments, authorized 
by St 1898, c. 428, § 6, are, in my opinion, subject to the pro- 
visions of the general militia law, St. 1893, c. 367 excepting as 
otherwise specially provided. 

Section 50 of the general militia law provides that, "When an 
officer holding a military commission is elected or appointed to 
another office in the militia, and accepts the same, such acceptance 
shall vacate the office previously held." 

This section answers your inquiry. An officer who accepts an 
election to office in the militia vacates his former commission, 
whether the new commission be in the active or in the provisional 
militia. 

Yours very truly, 

HosEA M. Knoavlton, Attorney -General. 



Northern Avenue Bridge — Northern Avenue — Right of Common- 
ivealth to build and extend. 

The right of the Commonwealth under the four-part agreement, to build 
Northern Avenue bridge and to extend Northern Avenue, is not im- 
paired by St. 1880, c. 260, or by the deed made under authority of that 
statute. 

Jan. 11, 1899. 

Hon. Woodward Emery, Chairman, Harbor and Land Commissioners, 

Dear Sir: — I have your letter of Nov. 30, 1898, submitting 
certain inquiries relating to St. 1880, c. 260. The statute author- 
ized the New York & New England Railroad Company to purchase 
the twenty-five-acre lot, so called, on the Commonwealth's flats at 
South Boston, " subject to the right of the city of Boston to lay out 
Northern Avenue over said parcel as provided in an indenture of 
four parts between the Commonwealth, the Boston & Albany Rail- 
road Company, the Boston Wharf Company and the city of Boston, 
dated the twenty-fourth day of June, eighteen hundred and seventy- 
three," for the sum of one million dollars. The statute further 
provides that upon the payment of two hundred thousand dollars 
thereof, "said New York & New England Railroad Company 
shall have all the rights of the Commonwealth under said indenture 
to build Northern Avenue bridge and extend Northern Avenue 
to some existing street on the northwesterly side of Fort Point 
Channel, for and on account of said city, and to reimbursement 



6 ATTORNEY-GENERAL'S KEPORT. [Jan. 

therefor from said city, as provided in said indenture.'* The stat- 
ute farther provides: "Said railroad company shall also have 
authority to build, at its own cost, Northern Avenue Bridge, in 
anticipation of action by the said city, subject, however, to all 
rights of said city under said indenture." 

The question submitted in your letter, in substance, is whether, 
under this statute and the deed given by authority thereof, the 
Commonwealth has parted with its rights as to the building of the 
Northern Avenue bridge under said indenture. 

The Commonwealth, at the time of the execution of the four- 
part agreement was the owner of a large tract of land situated 
easterly of Fort Point Channel, of which the twenty-five-acre lot 
referred to in the statute of 1880 was a small portion. Under the 
terms of the indenture, the city of Boston, in consideration of cer- 
tain obligations entered into by the Commonwealth and the other 
parties thereto, covenanted and agreed, upon certain conditions 
stated therein, to build, within twelve months after the request of 
the Board of Harbor and Land Commissioners, approved by the 
Governor and Council, a bridge for public travel over Fort Point 
Channel, in extension of Northern Avenue. The indenture also 
provided for the laying out of Northern Avenue over the land of 
the Commonwealth and of the Boston & Albany Railroad Company, 
which corporation was the owner of land deeded to it by the 
Commonwealth. 

The indenture further provided that, in case the city of Boston 
should fail to build Northern Avenue bridge and extend the avenue, 
the Commonwealth might build the bridge and extend the avenue ; 
and in such case the city of Boston should pay to the Commonwealth 
the cost thereof, not exceeding a specific sum. 

The building of the bridge and the extension of the avenue were 
necessary to the proper development of the land of the Common- 
wealth, not merely of the twenty-five-acre lot which was adjacent 
to the channel, but of all the other land lying to the eastward ; and 
the plain purpose of the Indenture was to secure the performance 
of the work, at the option of the Commonwealth, either by the city 
of Boston, or, by the Commonwealth, at its expense. 

St. 1880, c. 260, § 1, par. 1, provides, in terms, it is true, that 
the railroad company " shall have all the rights of the Common- 
wealth under said indenture to build Northern Avenue bridge and 
extend Northern Avenue ; " but, in view of the circumstances, which 
must have been known to the Legislature when the statute was en- 
acted, I do not think that it was the intention of the Legislature to 
give up the rights of the Commonwealth, but rather to admit the 
New York & New England Railroad Company, it being the grantee 
of a portion of the tract to be benefited, to au equal right in the 



1900.] PUBLIC DOCUMENT — No. 12. 7 

enforcement of the covenant to build the bridge and extend the 
avenue. I am of the opinion that the words " shall have all 
the rights of the Commonwealth under said indenture," are to 
be taken to mean that the raih'oad company shall share and ex- 
ercise, in common with the Commonwealth, all its rights to have 
the bridge built and the avenue extended. Such a construction 
does not unduly violate the letter of the statute, and is consistent 
with what may be supposed to have been the purpose of all parties 
in its enactment. It would be unreasonable to suppose that the 
Commonwealth, being the owner of a large tract, of which the 
twenty-five-acre lot was only a small portion, all of which alike 
would be benefited by the building of the bridge, intended, in sell- 
ing the twenty-five-acre lot to the railroad company, to part with 
the rights it had acquired under the indenture. 

It is unnecessary to consider how far action taken by the rail- 
road company under the statute would have concluded the rights 
of the Commonwealth ; for, as I am informed, no action whatever 
has been taken. The city cannot avoid its obligation by reason 
of the statute, for it has not been prejudiced or injured by its 
enactment nor by any acts done under it. The deed to the railroad 
contains no express assignment of the rights of the Commonwealth, 
under the four-part agreement, to have the bridge built and the 
avenue extended. The railroad, therefore, has no right of inter- 
ference in the matter, except under the statute, which, for the 
reasons I have stated, is not to be interpreted as taking away the 
rights of the Commonwealth. 

Upon the whole, therefore, I am of the opinion that the right 
of the Commonwealth to build Northern Avenue bridge and extend 
Northern Avenue is not impaired by St. 1880, c. 260, or by the 
deed made under the authority thereof. 
Yours very truly, 

HosEA M. Knowlton, Attorney 'General. 



Gas Company — New England Gas and Coke Company — Un- 
incorporated Voluntary Association — Eetiirns to Gas aiid Elec- 
tric Light Commissioners. 

St. 1886, c 346, § 2, providing that "manufacturing companies in which 
the manufacture of gas is a minor portion of their business shall only 
be required to keep accounts of the expenses and income of their gas 
business," was intended to exempt manufacturing corporations which 
carry on a gas business in addition to and entirely separate from their 
principal business, and does not apply to a company whose business is 
the manufacture of coal by one process into gas, col^e and other by- 
products. 



8 ATTORNEY-GENERAL'S REPORT. [Jan. 

While a gas corporation becomes subject to the jurisdiction of the Board 
of Gas and Electric Liglit Commissioners as soon as it is incorporated, 
an unincorporated' voluntary association has no greater rights and is 
subject to no greater duties or liabilities than an individual, and is 
not, therefore, subject to the jurisdiction of the Board, and is not re- 
quired to make returns to the Board until it comes into actual rela- 
tions with the gas consumers. 

Jan. 26, 1899. 

FonKEST p]. Bakkek, P^sq., Chairman, Gas and Electric Light Commis- 

sioners. 

Dear Sir : — I have the honor to acknowledge receipt of two 
communications from the Board of Gas and Electric Light Com- 
missioners, notifying the Attorney-General that the New P^ngland 
Gas and Coke Company appears to have violated the provisions of 
St. 1885, c. 314, § 7. • 

The first letter, dated Dec. 12, 1898, sets forth that the com- 
pany " has failed to make its annual return to this Board, in the 
form prescribed by this Board, on or before the second Wednes- 
day of September, A.D. 1898." 

The second letter, dated Jan. 19, 1899, states that the company 
*' has refused and neglected to furnish any statement of certain 
information required by the Board, touching the condition, man- 
agement and operations of the company, although requested so to 
do on the twelfth day of December, 1898." 

These notifications are given to the Attorney-General under the 
provisions of § 12 of said chapter, which provides that, whenever 
any gas company violates or neglects to comply with the provisions 
of the statutes, the Board shall give notice thereof, in writing, to 
such corporation and to the Attorney-General, who " shall take 
such proceedings thereon as he may deem expedient." Proceed- 
ings against the company being thus left to the discretion of the 
Attorney-General, I have deemed it my duty to consider carefully 
whether, upon the facts stated, the company has violated the pro- 
visions of the statute. As a result of my examination, I am 
clearly of the opinion that no violation of law appears, and that 
I should not institute proceedings against the company. Although 
your Board is not responsible for the action of the Attorney-Gen- 
eral, it is due to it that I state briefly the reasons which have led me 
to these conclusions. 

The section in question (St. 1885, c. 314, § 7) provides that 
" Every gas company shall annually make a return to said Board 
in a form and at a time prescribed by said Board, setting forth the 
amount of its authorized capital, its indebtedness and financial 
condition on the first day of January preceding, and a statement 
of its income and expenses during the preceding year, together 



1900.] PUBLIC DOCUMENT — No. 12. 9 

with its dividends paid or declared, and a list containing the names 
of all its salaried officers, and the amount of the annual salary paid 
to each ; and said return shall be signed and sworn to by the presi- 
dent and treasurer of said company and a majority of its directors. 
Every such company shall also at all times, on request, furnish 
any statement of information required by the Board concerning 
the condition, management and operations of the company, and 
shall comply with all lawful orders of said Board." 

The New England Gas and Coke Company is not a corporation. 
Your letter assumes, however, that the company is made subject 
to the provisions of the section quoted, by St. 1886, c. 346, § 7, 
which provides that, in the construction of the statute, the pro- 
visions of which it is alleged have been violated, " the terms ' gas 
company ' and ' corporation ' shall include all persons owning or 
operating works for the manufacture and sale of gas for heating 
or illuminating purposes within the Commonwealth." 

Before discussing what I deem to be the principal question in- 
volved, it may be well to allude briefly to one of the claims made by 
the company as a reason for not making the returns required by 
the statute. St. 1886, c. 346, § 2, after providing that the returns 
to be made by gas companies shall be made on or before the 
second Wednesday of September in each year, further provides 
"that manufacturing companies in which the manufacture of gas 
is a minor portion of their business shall only be required to keep 
accounts of the expenses and income of their gas business " I am 
informed that one of the contentions of the New England Gas and 
Coke Company is that it is not required to make returns to your 
Board, because the manufacture of gas is to be a minor portion of 
its business, and that it has submitted estimates tending to show 
that the value of the gas product will be less than that of the coke 
manufactured. I have no difficulty with this contention. It is 
conceded that in all essential respects the process of the company, 
in question is similar to that of other gas companies manufacturing 
coal gas, the only difference claimed being that by the methods de- 
signed to be employed by this company a relatively larger propor- 
tion of coke will be manufactured. When coal is treated for the 
production of gas, the resulting products include gas and coke and 
ammonia. Ordinarily, the coke is of less value than the gas. 
The New England Gas and Coke Company claims that its product 
of coke will be more valuable than the gas, although it admits that 
no separate account can be kept of the expense of manufacturing 
gas, which shall not include all the expenses of treating the coal 
employed. 

The statute upon which the company relies was intended to 



10 ATTORNEY-GENERAL'S REPORT. [Jan. 

exempt raaDufacturing corporations which carry on a gas business 
in addition to and entirely separable from their principal business, 
as to which an account of the expenses and income from such in- 
cidental business might be accurately determined. But the busi- 
ness of this company is the manufacture of coal, by one process, 
into gas, coke and other by-products. This is its principal, and, 
so far as I know, its only, business ; and it is not exempt from 
making returns merely because it may happen that the coke pro- 
duced is worth more than the gas. Both are products of one 
process of manufacturing. 

If the contention of the New England Gas and Coke Company 
were sound, any gas company would be exempt from making a 
return whenever it could show that the income from what are 
usually termed its by-products exceeded that derived from the sale 
of gas. Such a construction would make the enforcement of the 
salutary provisions of the statute, which are designed for the pro- 
tection of the gas consuming public, dependent entirely upon the 
market value of the various products of the gas retort. This, ob- 
viously, was not the intention of the Legislature, and is not a 
reasonable construction of the provisions in question. 

My principal difficulty arises from the fact that the gas company 
is not now engaged in the manufacture or sale of gas. If it were 
a gas corporation, this fact would make no difference. Such a 
corporation becomes subject to the jurisdiction of your Board as 
soon as it is incorporated. It is essentially, and by express pro- 
visions of its charter, a gas corporation. It exists as such under 
the authority and by sanction of the Legislature. It cannot plead 
to the jurisdiction of your Board that it is not engaged in the 
manufacture of gas; for it is, nevertheless, a gas corporation, sub- 
ject from its inception to all the provisions of law applicable to 
such corporations. 

The New England Gas and Coke Company, however, is not a 
corporation, but an unincorporated voluntary association. The 
title is but a designation of certain trustees holding property upon 
certain trusts set forth in a declaration of trust dated Sept. 30, 
1897. The declaration of trust provides that the trustees shall use 
the property conveyed to them in trust " in manufacturing, buy- 
ing, selling and dealing in coal, oil, coke or gas, or all the products 
thereof of every description and any business similar thereto, in- 
cluding electric business of all kinds ; " and the trustees are to 
divide the profits of the business ratably among certain persons 
called shareholders, in proportion to the number of shares held by 
them. The original shareholders, with the number of shares, are 
stated in the declaration, and it is provided that certificates of 



1900.] PUBLIC DOCUMENT — No. 12. U 

shares shall be issued to each shareholder, which certificates may 
be transferred to others whose names shall be recorded on the 
trustees' books, the transferee to be held to have assented to the 
terms of the trust by the fact of his acceptance of the transfer of 
the shares. The death of a shareholder does not determine the 
trust nor give his personal representative a right of accounting, 
but simply entitles him to a new certificate of stock, upon the 
acceptance of which he succeeds to all the rights of the deceased 
under the trust. No shareholder has the right to call for a parti- 
tion accounting or a division of the trust property. 

Upon the death or removal of any trustee, his successor is to be 
appointed by the remaining trustees or by the court, and such new 
trustee shall have the same powers and be subject to the same 
duties as an original trustee. Unless terminated by the action of 
a percentage of the stockholders, the trust is to continue for fifty 
years, unless -all of the trustees now living shall have died more 
th^n twenty-one years prior to the expiration of fifty years, in 
which case the trust is to terminate at the expiration of such 
twenty-one years. At the termination of the trust the property 
is to be divided or sold and divided among the shareholders. The 
holders of two-thirds of the shares may alter or terminate the trust 
at a properly called meeting. 

The trustees are empowered, among other things, to make cer- 
tain contracts, borrow money, give notes or other obligations, 
mortgage the trust property to secure the payment of such obliga- 
tions or notes, and, generally, to do all things necessary to execute 
the trust ; but express limitations are put upon their powers, so that 
they are not authorized to bind the shareholders personally by any 
contract or by any act, neglect or default ; and this exemption 
applies also to the trustees themselves ; but it is provided that any 
party injured shall have recourse for satisfaction solely to the trust 
estate. Every note, bond, obligation or contract shall give notice 
of these limitations on the power of the trustees by a direct refer- 
ence to the declaration of trust. 

It is plain that these provisions, while in many respects resem- 
bling those peculiar to corporations, do not constitute the New 
England Gas and Coke Company a corporation. Nothing less 
than sovereign power can create a corporation. There is no such 
thing as a corporation (excepting, perhaps, a corporation sole) at 
common law. The essential features of corporations can only 
exist by legislative authority, either under general laws authorizing 
the formation of corporations, or under special charters. The 
company in question has no special charter, and it is not con- 
tended, and cannot be claimed, that it has complied with, or 



12 ATTORNEY-GENERAL'S REPORT. [Jan. 

attempted to comply with, the general statutes authorizing the 
forming of corporations. There is in this Commonwealth no 
form of association midway between a corporation and a partner- 
ship. Although a partnership is in the form of a joint stock com- 
pany, it is held to be merely a partnership. Tappan v. Bailey^ 4 
Met. 529 ; Tyrrell \. Washburn, 6 Allen, 466 ; Edwards v. Warren 
Linoline Works, 168 Mass. 564. It is immaterial that the shares 
of the company are transferable. Phillips v. Blatchford, 137 Mass. 
510. See also Bicker v. American Loan & Trust Co., 140 Mass. 
346. 

So far, therefore, as the provisions of the statutes relating to 
gas companies are applicable only to gas corporations, they cannot 
be enforced against the New England Gas and Coke Company. 
It has clothed itself in the garb, and assumed the form and appear- 
ance of a corporation ; but it is, nevertheless, a voluntary associa- 
tion of individuals, without corporate power or authprity, and has 
no greater rights, and is subject to no greater duties or liabilities 
than any association of individuals, or even than any individual. 
For the purposes of the statutes relating to the powers of your 
Board, it is to be treated precisely as though it were an individual. 

This being so, what duty of making returns did the Legislature 
intend to impose upon an individual engaging or proposing to 
engage in the manufacture and sale of gas? A statute requiring 
from individuals engaged in business in this Commonwealth in- 
formation regarding the condition, management and operations of 
their business is one which must necessarily impose upon such 
individuals special burdens and duties not required of other classes 
in the community. The statute purporting to impose such burdens 
must, therefore, in my opinion, be strictly construed. Black on 
Interpretation of Laws, p. 300. 

In view of these principles, which are fundamental and well 
settled, I cannot believe that it was the intention of the Legislature 
to impose upon an individual any duty of making returns or of 
furnishing information as to his private business. The building 
of factories and retorts by an individual, even the making of 
executory contracts for the future sale and delivery of gas to a 
corporation, are matters of private business, so far, at least, as 
relates to the contractor. The supervision of the Commonwealth 
over the operations of an individual is only warranted when, by 
actually engaging in the business of supplying gas, he serves the 
public. There is a clear distinction in this respect between an 
individual and a gas corporation. As I have already pointed out, 
the corporation is the creation of the Commonwealth, acquires its 
rights under the laws of the Commonwealth, and, whether engaged 



1900.] PUBLIC DOCUMENT — No. 12. 13 

in business or not, is and should be subject to all the provisions 
governing such corporations. An individual, on the other hand, 
is not within the purview of the statute, and does not become sub- 
ject to the jurisdiction of your Board, by reason of any intentions 
he may have formed or any preparations he may have made, until 
he comes into actual relation with the gas consumer. 

I am of opinion, therefore, that the New England Gas and Coke 
Company, being but a voluntary association of individuals, and 
not being engaged in the manufacture or sale of gas, is not at 
present required to make returns to your Board, nor to answer 
inquiries as to its business or financial condition. 
Very truly yours, 

HosEA M. Knowlton, Attorney-General. 



Pauper — Married Woman — Domicile — Settlement. 

A woman whose husband has never had a domicile in this Commonwealth, 
and who has deserted her, may by her own separate residence acquire 
a settlement here. 

The doctrine that a married woman's domicile is that of her husband has 
no application to this case. 

That doctrine does not apply so as to give a woman who came to this 

Commonwealth from a foreign country three years after her husband, 

a constructive residence here, during the three years, which can be 

tacked on to her actual residence here, for the purpose of giving her a 

settlement. 

Feb. 2, 1899. 

Stephen C. Wrightington, Esq., Super inte^ident. State Adult Poor. 

Dear Sir: — Your letter of Dec. 3, 1898, states two cases, 
which in my opinion are governed by the same general considera- 
tions. 

First. One who is now a pauper came with his mother to this 
Commonwealth and to Worcester in 1874. He has acquired no 
Settlement in his own right. None of his ancestors except his 
mother ever lived in Massachusetts. His father and mother last 
lived together in the State of New York, in the town of Champlain, 
where he was born. His father there deserted his famil}^ and re- 
moved to Michigan, where he lived until his death, in 1896. His 
mother, after her husband's desertion, came to Worcester, where 
she resided, without receiving public aid, from 1874 to 1889. 

The question submitted by your letter is, whether the mother of 
the pauper acquired a settlement by her residence in Worcester, 
which descended to her son. The settlement of the mother is 
claimed under the provisions of St. 1874, c. 274, as amended by 
St. 1879, c. 242, providing that married women who have not a 



14 ATTORNEY-GENERAL'S REPORT. [Jan. 

settlement derived by marriage, who reside in any place within the 
State for five years, shall thereby gain a settlement in such place. 

In Stoughton v. Cambridge, 165 Mass. 251, it was held that a 
settlement was gained by a married woman in the defendant city 
because her husband's domicile was there for a period of more than 
five years, although her own domicile, excepting so far as it was 
that of her husband, did not remain constant, the court (Allen, J.) 
saying, " It still remains the law of Massachusetts that ordinarily 
a married woman's domicile is that of her husband." 

I do not think, however, that the doctrine of Stoughton v. Cain- 
bridge is applicable to the present case. The husband had no 
domicile in Massachusetts, and never had. He had deserted his 
wife in New York, and removed to another State. After the de- 
sertion, she had come to Massachusetts, and there resided. In 
my opinion, the legal fiction that wherever a wife may be actually^ 
she is constructively with her husband, does not apply to this case. 
Many exceptions have grown up to the ancient doctrine. At the 
present day, the law recognizes the wife as having a separate ex- 
istence and separate rights and separate interests ; the ancient 
unity is severed, so that the wife stands upon an equal footing 
with her husband as to property, torts, contracts and civil rights. 
He now has no more control over her than she over him, and there 
seems to be no reason why she may not acquire a separate resi- 
dence when she resides within and her husband without the State, 
and especially when he has forfeited his marital rights by his mis- 
conduct. To fix inevitably her residence with her husband would 
subvert her statutory right of voting and holding office, and would 
compel an innocent wife to make her home in whatever voting pre- 
cinct her offending husband might choose to live. Cheever v. Wil- 
son, 9 Wall. 108, 124. Shute v. Sargent, 36 Atlantic Rep. 282. 
Burtis V. Burtis, 161 Mass. 508. See also Thoinidike v. Boston, 
1 Met. 242, 245. 

Without attempting to establish any general rule applicable to 
all cases, I am clearly of the opinion that, upon the case stated, 
the mother of the pauper, by her residence in Worcester, gained 
a settlement there, notwithstanding the residence of her deserting 
husband in Michigan. 

Second. The second case stated in your letter illustrates still 
more forcibly the absurdity of the proposition that for purposes of 
settlement the wife's domicile is to be construed in all cases as that 
of her husband. 

The pauper in this case came to this country in February, 1895, 
being then about two years of age. His father, a native of Ire- 
land, lived in Springfield, Mass., from 1892 to 1898, but without 



1900.] PUBLIC DOCUMENT — No. 12. 15 

acquiring a settlement. His mother first came to this country, to 
Springfield, in 1895, where she resided for three years without re- 
ceiving aid. By tacking on to her actual residence two years of 
constructive residence, while her husband was living here and be- 
fore she ever saw this country, it is contended that she had resided 
in Massachusetts for five years. I do not think the statute can be 
construed to cover such a case, nor that the doctrine of Stonghton 
v. Cambridge applies to it. 

Very truly yours, 

HosEA M. Knowlton, Attorney- General. 



Pauper — Unmari'ied Woman — Residence — Settlement. 

The retroactive provision of St. 1874, c. 274, which gives a settlement to a 
woman by reason of residence, tliough such residence accrued before 
its enactment, does not apply to the case of an unmarried woman who 
at the time of its enactment was not a resident of Massachusetts. 

Feb. 2, 1899. 

Stephen C. Wrightington, Esq., Superintendent, State Adult Poor. 

Dear Sir: — Your letter of Oct. 28, 1898, states the following 
case : — 

A female pauper, who was born in Ireland in 1840, and who 
came to America and to the town of Winchester, Mass., in No- 
vember, 1862, and resided there as an unmarried woman from that 
date until her removal to California in May, 1868, returned from 
California to Winchester, September, 1896, and was committed to 
Danvers Insane Hospital, April 21, 1897. While in California she 
was committed to a lunatic hospital in 1872, where she remained 
until removed therefrom by her nephew in September, 1896, and 
returned, by him, to Winchester. During her prior residence in 
the town of Winchester she had received no public aid. 

Your letter requires the opinion of the Attorney-General upon 
the question whether the prior residence of the pauper in Winches- 
ter for more than five years, without receiving assistance, gives her 
a residence in Winchester, under the retroactive provisions of St. 
1874, c. 274. 

The statute provides, in § 2, that "Any woman of the age of 
twenty-one years who resides in any place within this state for five 
years together without receiving relief as a pauper shall thereby 
gain a settlement in such place ; " and in § 3, that " any unsettled 
person shall be deemed to have gained a settlement upon the com- 
pletion of the residence and taxation therein required, though the 
whole or part of the same accrues before the passage of this act." 

Her removal to California would not, of itself, operate to de- 



16 ATTORNEY-GENERAL'S REPORT. [Jan. 

feat her settlement, if the retroactive provisions of the statute 
apply to her case, so that she is deemed to have acquired a settle- 
ment prior to her removal. Wilbraham v. Sturbriilge, G Cush. 61. 
If, therefore, the statute quoted is to be interpreted as including in 
its retroactive provisions all persons, whether living within or with- 
out the State at the time of its enactment, she must be deemed to 
have acquired a settlement in Winchester by her five years' resi- 
dence in that town before removing to California. 

I am of opinion, however, that this is not a reasonable construc- 
tion of the act, and that it must be taken to refer only to unsettled 
persons residing within the Commonwealth at the time of its pas- 
sage, and for whom the Commonwealth was or might be under 
duty to provide. 

In Taunton v Boston, 131 Mass. 18, a statute containing similar 
retroactive provisions was held not to give a settlement by deriva- 
tion to the child of an unsettled person who died before its enact- 
ment. The case of Fitclihurg v. Athol, 130 Mass. 370, is more 
nearly in point. It was held in that case that the statute now un- 
der consideration was not intended to give a settlement to persons 
who voluntarily ceased to be residents of the State twenty years be- 
fore it was enacted, and, by derivation, to the descendants of such 
persons. Although neither of these cases can be said to be 
directly in point, they go far to sustain the position that the pur- 
pose of the Legislature was to deal only with persons living and 
residing within the Commonwealth at the time of the enactment 
of the statute. It having been held that the statute does not ap- 
ply to descendants of persons not living at the time of its enact- 
ment, nor to the descendants of persons who had removed from 
this Commonwealth before its enactment, the same considerations 
would logically lead to the exclusion of non-residents themselves, 
and I have no doubt that the court would so hold. 

I am of opinion, therefore, that the pauper in question is not 
settled in Winchester. 

Yours very truly, 

HosEA M. Knowlton, Attorney -General. 



Pauper — Temporary Aid to Unsettled Poor. 

St. 1898, c. 425, § 5, does not apply to persons whom the overseers of the 

poor are maintaining in their local almshouses, whose settlements are 

defeated by other sections of that act. 

Feb. 7, 1899. 

Stephen C. Wrightingtox, Esq., Supe7'intende7it, State Adult Poor. 

Dear Sir: — Your letter of Dec. 8, 1898, requests my opinion 

upon the construction of St. 1898, c. 425, § 5. Your letter states 



1000.] PUBLIC DOCUMENT — No. 12. 17 

that other sections of the same act have unsettled many persons 
now supported in almshouses in the towns in which they were 
formerly settled, and that in some cases the town authorities of 
such towns claim that they have a right to charge for the support 
of such paupers, under the provisions of the section in question. 

The section was enacted in substitution of Pub. 8ts , c. 84, § 18. 
It is apparent, from the reading of both the section under considera- 
tion and said § 18, that the purpose of the Legislature was to pro- 
vide aid for the unsettled temporarily poor and indigent in their own 
homes, and thus to prevent the sundering of family ties, which 
must have occurred had no such provision been enacted. Neither 
the former nor the present act is intended to include persons whom 
the overseers of the poor are maintaining in their almshouses, as, 
by their removal thereto, the overseers are deemed already to have 
decided that the almshouse and not their homes was the proper 
place for them to receive public aid. 
Very truly yours, 

HosEA M. Knovtlton, Attorney- General. 



County Accounts — Officers — Serving of Warrants — Fees. 

Officers serving warrants are entitled to charge for services aod expenses. 
The charge for services comprises fift}^ cents for each person upon 
whom service is made and an allowance for "travel." Expenses are 
limited to actual and necessary disbursements, and may be charged in 
addition to the item of constructive travel. 

Railroad fares are not included in " travel," and may be charged in addi- 
tion thereto. 

If an officer has charged twice for expenses, the amount may be withheld 
in any further settlement between him and the paymaster or clerk 
whose duty it is to pay him. 

If an officer knowingly charges for expenses which he did not incur, it 
constitutes the offence of obtaining money under false pretences. 

Feb. 9, 1899. 
Charles R. Prescott, Esq., Controller of County Accounts. 

Dear Sir : — Your letter of Dec. 22, 1898, submits a number of 
questions on which the opinion of the Attorney-General is desired. 
They can well be answered together, as the same considerations 
apply to all. 

Otlicers serving warrants are entitled to charge for services and 
expenses. The charges for services comprise fifty cents for each 
person on whom service is made, and an allowance, dependent 
upon the number of miles travelled, for what is called in the stat- 
ute " travel." Although so called, it is, in fact, intended as a 
sliding scale of compensation for serving warrants. These two 



18 ATTORXEY-GENERAL'S REPORT. [Jan. 

items may be charged in every case where a warrant is served, 
excepting when more than one process is served upon the same 
defendant on the same day. With this exception, officers may 
charge fifty cents for service on every defendant, and constructive 
travel upon every warrant, even though travel is thus charged more 
than once for the same journey. 

It is otherwise with expenses, which can be charged and col- 
lected but once, whether for travelling expenses, conveyance of 
prisoner or for aid. Whenever, in the service of a warrant, an 
officer incurs expense which is necessary and reasonable, he may 
charge for it. Such expenses, for example, as railroad fares, are 
not included in or covered by the items of constructive travel, and 
may be charged in addition thereto. These charges are limited to 
actual disbursements, except that, if an officer uses his own team, 
he may charge fifteen cents a mile therefor, in addition to the 
constructive travel to which he is otherwise entitled. 

If, therefore, in any case, an officer has charged twice for ex- 
penses incurred by him, it is over-payment, and the amount may 
be withheld in any further settlements between him and the pay- 
master or the clerk whose duty it is to pay him. If he has know- 
ingly charged for expenses which he did not incur, it amounts to 
the offence of obtaining money by false pretences. 

I believe the foregoing is an answer to all the questions submitted. 
Yours very truly, 

HosEA M. Knowlton, Attorney- General. 



Board of Education — Normal School Teacher — Special Services 
at Teachers' Institutes, 

Pub. Sts., c. 21, § 8, providing that no person shall at the same time receive 
more than one salary from the State treasury, does not prohibit the 
State Board of Education from employing normal school teachers, 
with fixed annual salaries, at teachers' institutes and paying them from 
the appropriation made for the use of the Board. 

The section does not apply to special services for a department or com- 
mission. 

Feb. 18, 1899. 

Frank A. Hill, Esq., Secretary, Stale Boai'd of Education, 

Dear Sir : — Your letter of January 7 states that it is proposed 
by the Board to employ normal school teachers for service in teach- 
ers' institutes, and to pay them therefor from an appropriation 
made for the use of said Board. These teachers are paid fixed 
annual salaries, and service in institute work is no part of the 
regular duties for which normal school teachers are paid. 



1900.] PUBLIC DOCUMENT — No. 12. 19 

Pub. Sts., c. 21, § 8, provides that ''No person shall at the 
same lime receive more than one salary from the state treasury." 
The question upon which you desire my opinion is, whether the 
employment of teachers for institute work, as proposed, is in viola- 
tion of the section quoted. 

The section has always been construed according to its terms, 
as referring only to salaries fixed and established by some law of 
the General Court. It does not include compensation for special 
services under the employment of a department or commission. 
An allowance for such employment is not a ''salary," within the 
meaning of the word as used in the statute. 

I am of opinion, therefore, that teachers employed as proposed 
may properly be paid from the appropriation for teachers' institutes 
at your disposal. 

Yours very truly, 

HosEA M. Knowlton, Attorney- General. 



Bastardy Complaints — Entry Fee. 

The entry fee required in civil cases must be paid upon the filing of bas- 
tardy complaints. 

Feb. 18, 1899. 

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

Dear Sir: — St. 1876, c. 227, § 5, provides that " In proceed- 
ing under the bastardy laws, the costs shall be the same as in 
civil cases, and in addition thereto, a fee . . . for receiving com- 
plaints and issuing warrants." 

St. 1897, c. 237, § 1, repeals so much of the section above 
quoted as provides for a fee for receiving complaints and issuing 
warrants in bastardy cases. Other fees remain unchanged, and it 
follows that the entry fee required to be paid in civil cases must be 
paid upon the filing of bastardy complaints. 
Yours very truly, 

HosEA M. Knowlton, Attorney -General, 



Spanish War — Termination. 

The war was not ended by the ratification of the treaty of peace by the 
Senate of the United States. 

Feb. 18, 1899. 

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

Dear Sir : — The opinion of the Attorney-General is desired 
upon the question when the present war will be at an end. The 



20 ATTORXEY-GENERAL'S REPORT. [Jan. 

opinion is required because of certain provisions in vSt. 1898, c. 561, 
relating to the payment of a monthly bounty to soldiers. 

It is sufficient to say, at the present time, that in my opinion the 
war was not ended by the ratification of the treaty of peace by 
the Senate of the United States. When peace is finally concluded 
may be a question to be discussed hereafter, and I will consider 
the matter further if you will call my attention to it again after 
the treaty has been ratified by the Spanish government. 
Yours very truly, 

HosEA M. Knowlton, Attorney- General. 



Savings Ban'ks — First Mortgage of Real Estate — Property leased 
for Ninety-nine Years. 

A lessee of land for ninety-nine years, who erects a building thereon, can- 
not give such a mortgage on the building, or tlie land, or both, as sav- 
ings banks must take under a statute allowing them to invest their 
deposits in flrst mortgages of real estate in this Commonwealth. 

March 4, 1899. 
Stakkes Whiton, Esq , Chairman, Savings Banks Commissioners. 

Dear Sir : — Your letter of February 20 states that " It is pro- 
posed by certain parties who are unable to purchase outright a 
parcel of laud to take a lease thereof for a term of ninety-nine 
years, and to erect thereon a building which may cost one million 
dollars ; " and requests the opinion of the Attorney-General upon 
the question whether it would be lawful for a Massachusetts sav- 
ings bank to loan money to the lessee, secured by a mortgage on 
the building, or land, or both. 

St. 1894, c. 317, provides, in § 21, that deposits of savings 
banks may be invested in " first mortgages of real estate situated 
in this Commonwealth." Unless the property, therefore, is real 
estate, it would not be lawful for savings banks to loan money 
upon it. A lease for any less time than one hundred years is per- 
sonal property. Pub. Sts., c. 121, § 1. Ex parte Gay, 5 Mass. 
419. The lessor may enter at any time for breach of the cove- 
nants of the lease, and recover the land free from any encumbrance 
made or suffered by the lessee. The lessee, therefore, cannot give 
a mortgage on the land leased which would be a " first mortgage 
on real estate." 

If there is no agreement in the lease as to whom the building 
shall belong, it is real estate belonging to the lessor, being neither 
a domestic nor a trade fixture. Wall v. Hinds^ 4 Gray, 256. 271. 
If, on the other hand, there is an agreement in the lease that the 



1900.] PUBLIC DOCUMENT — No. 12. 21 

building, when erected, shall belong to the lessee, it is personal 
property, which the lessee may remove while he is in possession, 
but which he may not remove after his lease has expired. Burke 
V. Ilollis, 98 Mass. 55. Moreover, in case the lessor enters and 
terminates the lease for breach of condition thereof, the lessee for- 
feits his right to remove the building, even if there is an agreement 
in the lease that it shall belong to the lessee. Kuiter v. ^mith^ 2 
Wall. 491. 

It follows, therefore, that in the case stated it would not be 
lawful for a Massachusetts savings bank to loan money to the 
lessee secured by a mortgage upon the building, or land, or both. 
Very truly yours, 

Hose A M. Knowlton, Attorney- General. 



Pauper — Settlement. 

A person who derived a settlement in Boston from his father, which pre- 
vented him from gaining a settlement there in his own right under St. 
1874, c. 274, is within the exception of St. 1898, c. 425, and his derivative 

settlement stands. 

March 4, 1899. 

Stephen C. Wrigiitington, Esq., Superintendent, Slate Adult Poor. 

Dear Sir : — Your letter of February 28 requires my opinion 
upon the settlement of a certain person named therein, the facts 
being as follows : He was born in Boston in 1829, and has always 
resided in Boston. He derived a settlement in Boston from his 
father, who died in Boston in 1876, at the age of seventy-nine 
years. His mother died in Boston, at the age of eighty- seven 
years. There was a period of five years between 1872 and 1877 
during which it is admitted that the person in question resided in 
Boston five full years without receiving public aid, and paid the 
necessary number of taxes to give him a settlement under the re- 
troactive clause of St. 1874, c. 274. 

That statute, after prescribing certain conditions of settlement, 
provides in § 3 that " No existing settlement shall be changed by 
any provision of this act unless the entire residence and taxation 
herein required accrues after its passage ; but any unsettled per- 
son shall be deemed to have gained a settlement upon the comple- 
tion of the residence and taxation herein required, though the 
whole or a part of the same accrues before the passage of this 
act." Under this statute the person in question could gain no 
settlement, inasmuch as he already had a settlement derived from 
his father and acquired prior to 18G0. His derivative settlement 



22 ATTOENEY-GENERAL'S REPORT. [Jan. 

from bis father prevented him from acquiring a settlement in his 
own right. Salein v. fyswich, 10 Cush. 517, 520. 

St. 1898, c. 425, defeats all settlements not fully acquired sub- 
sequent to May 1, 1860, " except where the existence of such 
settlement prevented a subsequent acquisition of settlement in the 
same place." The settlement of the person in question acquired 
before 1860 prevented the subsequent acquisition by him of a set- 
tlement in the same place. The case, therefore, is within the 
exception of the statute, and the original settlement stands. 

This conclusion is confirmed by the case of Adams v. Ipsivich, 
116 INIass. 570, in which the court (Wells, J.) says: *' If the 
older settlement prevented the subsequent acquisition of the more 
recent one, the former is preserved by the exception in the St. 
of 1870." The exception referred to in the opinion of the court 
is similar in its terms to that in the statute of 1898. 
Yours very truly, 

HosEA M. Knowlton, Attorney -General. 



Harbors — Selectmen — Fish Weirs. 

The selectmen of a town have no right to license fish weirs in a harbor 

bordering on the town beyond the harbor line. 

March 29, 1899. 

WooDVTARD Emery, Esq., Chairman, Harbor and Land Com,mission. 

Dear Sir : — Your letter of February 9 requires the opinion of the 
Attorney-General upon the following question, to wit: " Have the 
selectmen of Provincetown the right to license weirs in the harbor 
beyond the harbor line ? " 

The right of controlling and regulating the sea and seashores 
is in the sovereign. Under the early laws of Massachusetts, a 
structure built into the tide water by the owner of the shore might 
be declared a nuisance if it interfered with the rights of the public 
reserved to them by the Colonial Ordinance of 1641-47. To avoid 
the necessity of determining the question of nuisance in each 
particular case, the Legislature from time to time established lines 
in certain harbors beyond which no wharf or pier might be built 
into the sea. St. 1837, c. 229, fixing the harbor line of the harbor 
of Boston, was an example of this class of legislation. The 
right of the Legislature to establish such lines was sustained 
in Commomoeahh v. Alger, 7 Cush. 53, which held that a wharf 
could not be extended beyond the harbor line, even though it 
appeared that it did not obstruct navigation. 

St. 1866, c. 149, established a Board of Harbor Commissioners, 



1900.] PUBLIC DOCUMENT — No. 12. 23 

and authorized it, among other things, to prescribe harbor lines, 
beyond which no wharf, pier or other structure could be extended 
into the harbor. The lines so prescribed, however, were subject 
to the approval of the Legislature. Under the authority of this 
statute, the Harbor Commissioners prescribed lines for the harbor 
of Provincetown, which were approved by the Legislature. St. 
1867, c. 268. 

In 1869 an act was passed " to further protect the rights of the 
Commonwealth in tide waters." St. 1869, c. 432. Section 1 pro- 
vides : " All authority or license that may be hereafter granted . . . 
by the Commonwealth, to any person or corporation to build any 
structure upon ground over which the tide ebbs and flows . . . 
whether it be private property or the property of the Common- 
wealth, shall be subject to the following conditions, whether they 
be expressed in the act or resolve granting the same or not, 
namely, viz. : such license or authority shall be revocable at any 
time, at the discretion of the legislature, and shall expire at the 
end of five years from its date. . . . All things done under such 
license or authority shall be subject to the determination and 
approval of the harbor commissioners. ... If the legislature 
shall establish harbor lines within the outer line covered by such 
license or authority, then such license or authority shall be construed 
to he limited by and not to extend beyond such harbor line." 

The next general law regulating structures in tidewaters was St. 
1872, c. 236, entitled "An act to regulate the building of wharves 
and other structures in tidewaters." Section 2 of this act ex- 
pressly provided that no license for the construction of a wharf or 
other structure below high-water mark should have any effect be- 
yond a harbor line, " except in relation to a structure authorized 
by law outside such line." 

The statutes above referred to, which were re-enacted in the 
Public Statutes, show clearly that the privilege of building in the 
sea beyond low-water mark is intended to be carefully guarded, 
and that in harbors no structure can be built beyond the harbor 
line, except by express authority of the Legislature. 

It remains to be considered whether the statute authorizing the 
construction of fish weirs is to be taken as an exception to this uni- 
form course of legislation. St. 1856, c. 50, § 1, as re-enacted in Pub. 
Sts., c. 91, § 70, provides that " the selectmen of a town lying upon 
tidewater may authorize in writing any person to construct fish 
weirs in said waters within the limits of such . . . town for a term 
not exceeding five years : provided, such weirs cause no obstruction 
to navigation, and do not encroach on the rights of other persons." 
It is plain that this is not intended as an exception to the general 



24 ATTOEXEY-GENERAL'S EEPORT. [Jan. 

rule. It authorized selectmen to grant such licenses, but only in 
places where the buikliug of structures in tidewaters is not expressly 
forbidden by other provisions of law. To construe the statute 
otherwise would be to authorize the selectmen, at their discretion, 
to nullify the whole course of legislation intended to prevent the 
obstruction of the harbors of Massachusetts, and to give to the 
selectmen powers which are denied even to the harbor commis- 
sioners. 

I understand, however, that it is contended that St. 1881, c. 
196, § 1 (Pub. Sts., c. 27, § 2), extending the boundary lines 
of towns bordering on the sea to the line of the Commonwealth, 
operates to give to towns jurisdiction over tidewaters coextensive 
with such limits, or one marine league from shore. This act, how- 
ever, was not intended to take away the general jurisdiction of the 
Commonwealth over its tidewaters, nor to repeal or effect regula- 
tions established by the Commonwealth effecting the n. It did not 
give towns any property rights whatever in the sea, nor enlarge 
their rights over the sea. Its only purpose was to extend the juris- 
diction of towns for civil and criminal proceedings, so that such 
jurisdiction should be coextensive with that of the Commonwealth. 
Commomveallh v. Peters^ 12 Met. 387. Before the statute in ques- 
tion was enacted, the boundaries of counties were already coexten- 
sive with the limits of the Commonwealth, and the statute which 
extended the boundaries of towns probably merely affirmed the 
common law giving towns the same coextensive jurisdiction. In 
New York it was early decided that a similar act extending the 
limits of a town over the tidewaters did not give the town the right 
to regulate the digging of clams below low-water mark. Palmer 
V. Hicks, 6 Johns. 133. 

This statute cannot be taken to give towns any authority to con- 
struct fish weirs, where the Commonwealth, in the exercise of its 
jurisdiction over the waters, has forbidden the building of any 
structures whatever. I am of opinion, therefore, that your ques- 
tion should be answered in the negative. 
Yours very truly, 

HosEA M. Knowlton, Attorney-General. 



Militia — Provisional Militia. 

A soldier of the active militia, relieved from duty because he is unable o 
go into the United States service with his comraaml, does not forfeit 
liis standing in the active militia by enlisting in the provisional militia, 
and may be ordered by the commander-in-chief to rejoin his regular 
company on its return. 



1900.] PUBLIC DOCUMENT — No. 12. 25 

The commander of an organization would not be warranted in dlscliarging 
such a soldier because he enlisted in the provisional militia. 

Men of the provisional militia may be transferred to the active militia by 
the coinmauder-in-chief with or without their application or the con- 
sent of the company commanders from and to whom transfer is de- 
sired. 

March 30, 1899. 

Maj -Gen. Samuel Dalton, Adjutant- General. 

Dear Shi: — ^YheD, upon the declaration of war by the 
United States against Spain, many of the officers and privates of 
the Massachusetts Volunteer Militia offered their services to the 
United States, a question arose as to the continuance of their 
standing in the State militia. To settle this question, and to en- 
courage enlistments by members of the militia into the United 
States service, a statute was enacted — St. 1898, c. 428 — pro- 
viding that members so enlisting should not lose their position and 
rank in the militia ; but that the officers who so enlisted should be 
granted leave of absence, and the privates should be furloughed 
until thirty days after their discharge from the United States ser- 
vice. 

The quota of Massachusetts under the call of the President 
was filled by designating certain regiments and companies of the 
State militia, giving their members the opportunity of entering 
the service of the United States, while preserving as far as possible 
their regimental and company orgainization. Nearly all the offi- 
cers and men of the First Regiment of Heavy Artillery, of the 
Second, Plflh, Sixth, Eighth and Ninth Regiments of Infantry and 
of the Naval Brigade, entered the service of the United States 
under this call, — so many, in fact, that, by order of the commander- 
in-chief, dated May 18, 1898, those who did not enter the ser- 
vice of the United States were relieved from duty until further 
orders. 

As a consequence, the regiments and companies referred to 
were entirely depleted. They were never disbanded, however, and 
the State regimental and company organizations remained intact, 
and their officers and privates still continued to belong to them, as 
State regiments and companies. Those in the service of the 
United States were, by the provisions of the statute above re- 
ferred to, relieved from State duty until their completion of such 
service ; and those remaining at home, by the order of the com- 
mander-in-chief, were relieved from all military duty until the 
further order of the commander-in-chief. But none of them were 
discharged from the State militia. 

The same statute (St. 1898, c. 428) authorized the commander- 
in-chief to raise and organize provisional companies, to be assigned 



26 ATTORXEY-GENERAL'S REPORT. [Jan. 

to provisional battalions and regiments. Enlistments in sncli 
companies were to continue for a period not longer than thirty 
days after the declaration of peace, and the commissions of all 
officers elected or appointed for such provisional organizations 
were to expire not later than thirty days after the close of the war. 
Under the general orders above referred to, officers and men who 
bad not enlisted in the service of the United States, and who were 
relieved from duty until further orders of the commander-in-chief, 
were authorized to enter the provisional militia. This order can- 
not be taken as authorizing or requiring re-enlistment. St. 1893, 
c. 367, § 62, expressly provides that " No soldier whose term of ser- 
vice remains unexpired in one organization shall enlist in another 
organization of the volunteer militia." The officers and men in 
question, though relieved from duty, were still in the service of 
the Commonwealth in the organizations in which tliey had enlisted. 
They were not discharged from their service in such organizations 
when they entered the provisional militia. They were merely re- 
lieved from duty for the time being in their old companies, and, 
while so relieved from duty, were allowed to join the provisional 
companies. This the commander-in-chief had authority to permit. 
St. 1893, c. 367, § 149, expressly authorizes him to " make regula- 
tions for the government of the militia in accordance with exist- 
ing laws." There is no law preventing the commander-in-chief 
from relieving a man from duty in one company and permitting 
him to serve in another. This does not transfer his membership 
to the new organization, but only his service. A member of the 
volunteer militia so entering the service of the provisional militia 
by permission of the commander-in-chief, during a time when he 
is relieved from duty, nevertheless may be ordered to report for 
duty in the original organization at any time. 

The foregoing considerations dispose of the questions sub- 
mitted in your letter of February 28, and I reply to them specifi- 
cally as follows : — 

First. — " Does a soldier of the active militia, relieved from duty 
because he is unable (for reasons) to go into the United States 
service with his command, forfeit his standing in the active militia 
by enlisting in the provisional militia, and can such soldier rejoin 
bis company on its return from the Spanish war? Or must he be 
discharged from the provisional militia for re- enlistment in the 
active militia, and perhaps loose thereby his continuous service?" 

Such a soldier does not forfeit his standing in the active militia 
by entering the provisional militia, but may be ordered by the 
commander-in-chief to rejoin his regular army on its return. His 
service in the provisional militia is subordinate to his duty in the 



1900.] PUBLIC DOCUMENT — No. 12. 27 

active militia. It is not necessary as a prerequisite that be be dis- 
cbarged from tbe provisional militia. 

Second. — ^^ Would tbe commander of an organization be war- 
ranted in discbargiug a soldier relieved from duty because he could 
not accompany his company into the United States service, because 
he enlisted in a provisional company, and, perhaps, thus deprive 
him of continuous service?" 

This question must be answered in the negative. 

Third. — " Can men of the provisional militia be transferred to 
the active militia upon their application and the consent of the 
company commanders from which and to which such transfer is 
desired, as is permissible with the active militia?" 

For the reasons above stated, such men are subject to the orders 
of the commander-in-chief, and may be by him transferred to the 
active militia, either upon their application and the consent of the 
company commanders, or by the order of the commander-in-chief 
without such application. 

Yours very truly, 

HosEA M. Knowlton, Attorney- General. 



Foreign Banking Corporation — Right to File Papers with Commis- 
sioner of Corporations arid do Business in this Commonwealth. 

The Commissioner of Corporations, may, under St. 1894, c. 381, accept the 
charter of a foreign corporation, if the kind of business for which it 
is organized is one the carrying on of which is permitted to domestic 
corporations under the laws of the Commonwealtli ; and it is not nec- 
essary that the statutes of the foreign jurisdiction creating it, and de- 
fining its powers, duties and liabilities, should be the same in all 
respects as the statutes of this Commonwealth relating to the same 
subject. 

A foreign banking corporation may file its papers with the Commissioner 
of Corporations altliough the State banking act was made practically 
inoperative by the imposition of a tax of ten per cent, upon the cir- 
culation of State banks by the Federal Government. 

March 30, 1899. 

Hon. Charles ^^dicott. Commissioner of Corporations. 

Dear Sir : — Your letter of March 11, enclosing a copy of the 
charter of the Bank of Nova Scotia, which has been presented for 
filing in your office under the provisions of St. 1884, c. 330, re- 
quires the opinion of the Attorney-General whether you are author- 
ized to accept the paper, or are debarred under the provisions of 
St. 1894, c. 381. 

St. 1894, c. 381, provides in substance, in § 1, that it shall be 
unlawful for any corporation of another State or country to engage 



28 ATTORNEY-GENERAL'S REPORT. [Jan. 

or continue in the Commonwealth in any kind of business the trans- 
action of which by domestic corporations is not permitted by the 
laws of the Commonwealth ; and that the Commissioner of Corpora- 
tions shall refuse to accept or file the charter of, or accept appoint- 
ment as attorney for service for, any corporation doing business in 
this Commonwealth the transaction of which by domestic corpora- 
tions is not then permitted by the laws of the Commonwealth. 

The words " kind of business," as used in this statute, must be 
taken to signify the same general kind of business, and not that 
the statutes of the foreign jurisdiction creating it and defining its 
powers, duties and liabilities are the same, in all respects, as the 
statutes of this Commonwealth relating to the same subject. Un- 
der the latter construction, very few foreign corporations could be 
permitted to do business in the Commonwealth. It is not the duty, 
therefore, of the Commissioner to inquire how far the powers, 
duties and liabilities of the foreign corporation are in all respects 
similar to those of domestic corporation of the same character, but 
only whether the kind of business for which it is organized is one 
the carrying on of which is permitted to domestic corporations un- 
der the laws of the Commonwealth. 

The bank of Nova Scotia is subject to the banking act of Canada, 
enacted May 16, 1890. Section 64 provides as follows : " The 
bank may open branches, agencies and offices, and may engage in 
and carry on business as a dealer in gold and silver coin and bul- 
lion, and it may deal in, discount and lend money and make ad- 
vances upon the security of, and may take as collateral security 
for any loan made by it, bills of exchange, promissory notes and 
other negotiable securities, or the stock, bonds, debentures and ob- 
ligations of municipal and other corporations, whether secured by 
mortgage or otherwise, or Dominion, Provincial, British, foreign 
and other public securities, and it may engage in and carry on 
such business generally as appertains to the business of banking ; 
but, except as authorized by this act, it shall not, either directly 
or indirectly, deal in the buying, or selling, or bartering of goods, 
wares and merchandise, or engage or be engaged in any trade or 
business whatsoever; and it shall not, either directly or indirectly, 
purchase, or deal in, or lend money or make advances upon the 
security or pledge of, any share of its own capital stock, or of the 
capital stock of any bank ; and it shall not, either directly or indi- 
rectly, lend money or make advances upon the security, mortgage 
or hypothecation of any land, tenements or immovable property, 
or of any ships or other vessels, or upon the security of any goods, 
wares and merchandise." 

This enumeration makes it clear that the corporation in question 
is authorized to carry on a general banking business. This is a 



1900.] PUBLIC DOCUMENT — No. 12. 29 

business the transaction of -which by domestic corporations is per- 
mitted under the laws of the Commonwealth. Pub. Sts., c. 118, 
provides for the incorporation of State banks to do a general bank- 
ing business, and under it corporations may be formed for that 
purpose. The statute has been practically inoperative, so far as 
it authorizes the emission of bank bills for circulation, since the 
enactment of the United States statute (Rev. Sts., U. S., § 3412), 
imposing a tax of ten per cent., upon the circulation of State 
banks. But, notwithstanding this fact, the Legislature has seen 
fit to continue the State bank law in force, and it cannot be said 
that the carrying on of a general banking business is not permitted 
by the laws of the Commonwealth. 

I am of opinion, therefore, that it is your duty to accept the 
charter of the corporation in question. Whether a law should be 
permitted to continue upon our statute books which is inoperative 
so far as it relates to domestic corporations, but which may be 
taken advantage of by foreign corporations in the manner in which 
it has been by this corporation, is a question for the determination 
of the Legislature. 

Yours very truly, 

HosEA M. Knowlton, Attorney-General. 



Insurance — Single Ilazard — Reinsurance. 

The prohibition of St. 1894, c. 522, § 20, against insuring in a single hazard 
a larger sum than one-tenth of the net assets of the coiiipauy, is not 
met by reinsuring such hazard so far as to bring the net amount of the 
risk within the prescribed limit. 

Nor does it make any difference that the company taking the risk is one of 

a syndicate of companies, with the others of which it has contracts 

whereby each one of them becomes liable for its portion of the risk 

not exceeding the ten per cent, limit. Such a transaction is in fact 

reinsurance. 

March 30, 1899. 

Hon. Fkederick L. Cutting, Insurance Commissioner. 

Dear Sir: — St. 1894, c. 522, § 20, as amended by St. 1895, 
c. 59, § 1, provides that "No insurance company shall insure in 
a single hazard a larger sum than one-tenth of its net assets." 
To this provision there are certain exceptions, one of which is 
contained in the same section, and another in St. 1898, c. 537. 

Your letter of March 23 requires the opinion of the Attorney- 
General upon two questions touching the construction of the fore- 
going statute, to wit : — 

First. — " Whether a company, except as provided in the excep- 
tions above noted, violates the statute when it takes an amount 



30 ATTORNEY-GENERAL'S REPORT. [Jan. 

in excess of one-tenth of its net assets in a single hazard, if it 
immediately reinsures such portion of the risk that it does not 
retain for itself an amount in excess of the Ihnit prescribed by the 
law." 

This inquiry is fully answered by Attorney-General Pillsbury 
in an opinion submitted to your department, dated July 29, 1891 
(1 Op. Atty.-Gen. 25), in which he advised the commissioner that 
the prohibition against insuring in a single hazard a larger sum 
than one-tenth of the net assets of the company is not met by 
reinsuring such hazard so far as to bring the net amount of the 
risk within the prescribed limit. 

I see no reason to doubt the soundness of that opinion. 

Second. — '* Whether a company violates the statute in question 
when it takes an amount in excess of the ten per cent, limit, if at 
that time it has a contract with a syndicate of companies, in which 
each company agrees with each of the others to become liable for 
an equal part of the amount insured from the moment it is bound 
by either of the companies." 

It is stated in your letter, in explanation of this question, that 
the original company issues its policy for the whole amount of 
insurance, and that the share of each member of the syndicate in 
the liability would not exceed the ten per cent, limit. 

The reasons which lead to the conclusion that the prohibition of 
the statute is not met by reinsurance govern this inquiry. It is 
immaterial under what form of contract the company writing the 
policy arranges with other companies to share its liability. The 
transaction is in fact reinsurance. The company which writes the 
contract is alone liable to the insured. He has no contractual 
relations with the other companies in the syndicate. 
Yours very truly, 

HosEA M. Knowlton, Attorney- General. 



Massachusetts Reformatory — AutJiority of Superintendent to con- 
tract ivith Concord for Water Supply — Nature of a Resolve 
of the Legislature. 

The authority of the superintendent of the Massachusetts Reformatory to 
contract with the town of Concord to supply the reformatory with water 
is limited, under the provisions of Res. 1894, c. 62, to the execution of 
a single contract. 

March 30, 1899. 

J. Warren Bailey, Esq., Secretary, Commissioiiers of Prisons. 

Dear Sir : — I am unable to answer satisfactorily the first in- 
quiry in your letter of the 23d without further information as to 



1900.] PUBLIC DOCUMENT — No. 12. 31 

what took place at the termination of the contract referred to in 
St. 1884, c. 201, § 11. 

Replying to your second inquiry, I beg to say that in my opin- 
ion the authority of the superintendent of the Massachusetts Re- 
formatory to contract with the town of Concord to supply the 
reformatory with water, under the provisions of Res. 1894, c. 62, 
was exhausted when he made a contract therefor. Resolves are 
distinguished from acts by being temporary in their nature. A 
bill conferriug general authority upon the superintendent to con- 
tract for water supply would give him authority to make new 
contracts or to renew existing contracts. It is otherwise with a 
resolve. There being nothing in the resolve to indicate that the 
authority is continuing, it must be taken to give authority only for 
the execution of a single contract, and does not authorize the 
superintendent to make a new contract at the expiration thereof. 
Very truly yours, 

HosEA M. Knowlton, Attorney -General. 



Boston Gas Companies — Charters subject to Amendment, Altera- 
tion and Repeal — Consolidation — Constitutional Law. 

An act which should authorize the gas companies of Boston, whose char- 
ters are sul)ject to amendment, alteration or repeal, to consolidate, and 
provide that, unless they did consolidate before a certain date, their 
charters should be repealed on that date, would be constitutional. 

It is doubtful whether the Legislature may delegate to the courts the 
authority to annul the charters, in case the corporations should not 
consolidate within the prescribed time. 

April 26, 1899. 

Hon John L. Bates, Sj^eaker, House of Representatives. 

Dear Sir : — I have the honor to acknowledge the receipt of the 
order of the House of Representatives, adopted April 12, 1899, 
requesting my opinion upon the following questions, to wit : — 

First. — '' Whether the provisions of § 11 of the proposed act 
for the consolidation of certain gas companies in the city of Boston, 
submitted in the fourteenth annual report of the Board of Gas and 
Electric Light Commissioners (Pub. Doc. No. 35), are constitu- 
tional, and can be enforced in law or equity." 

Second. — " Whether a law requiring any two or more gas com- 
panies to consolidate without the consent of such companies can 
be enforced in law or equity." 

The corporations affected by the proposed act are the Boston 
Gas Light Company, the Brookline Gas Light Company, the Bay 
State Gas Company, the Roxbury Gas Light Company, the South 
Boston Gas Light Company, the Dorchester Gas Light Company, 



32 ATTORNEY-GENERAL'S REPORT. [Jan. 

the Jamaica Plain Gas Light Company and the Massachusetts 
Pipe Line Gas Company. 

All these corporations, excepting the Boston Gas Light Com- 
pany, were incorporated subsequent to the year 1831, and are sub- 
ject to the provisions of Pub. Sts., c. 105, § 3, which provides that 
'' Every act of incorporation passed after the eleventh day of March 
in the year 1831 shall be subject to amendment, alteration, or repeal 
at the pleasure of the General Court." The Boston. Gas Light 
Company was incorporated by St. 1822, c. 41 ; and there is no 
provision in the charter which, in terms, makes it subject to amend- 
ment or repeal at the pleasure of the Legislature, nor any pro- 
vision limiting the duration of the charter. But, by St. 1809, c. 
65, which was " An act defining the general powers and duties of 
manufacturing corporations," it was provided (§ 7) that '' the legis- 
lature may from time to time, upon due notice to any corporation, 
make further provisions, and regulations for the management of the 
business of the corporation, and for the government thereof, or 
wholly to repeal any act, or part thereof, establishing any corpora- 
tion, as shall be deemed expedient." This act was in force when 
the Boston Gas Light Company was incorporated, and, in my opin- 
ion, is to be taken as limiting the rights conferred by its charter. 
The charters of all the corporations affected by the proposed act 
are subject, therefore, to amendment, alteration or repeal at the 
pleasure of the Legislature. 

It is this power of control over its corporations which is invoked 
in the proposed act. The act provides in § 1 that the corporations 
named may unite and consolidate into one company, in the manner 
and upon the terms and conditions thereinafter set forth. By § 2 
it is provided that the terms and conditions shall be agreed upon 
by the directors of each and all of the corporations, subject to the 
approval of a majority of the stockholders of the respective cor- 
porations and of the Board of Gas and Electric Light Commis- 
sioners. . The agreement so to be executed shall determine the 
amount of the capital stock, bonds and coupon notes to be issued 
by the new corporation, and shall provide for the conveyance of 
all the real and personal estate of the constituent corporations to 
the new corporation ; and also the proportion in which the shares, 
bonds and coupon notes of the new corporation shall be distributed 
among the shareholders and creditors of the constituent corpora- 
tions. The act further provides for the organization of the new 
corporation within thirty days after the execution and approval of 
the agreement provided for in § 2, and that upon the completion 
of such organization the corporate existence of the respective con- 
stituent corporations shall continue only for the purpose of winding 



1900.] PUBLIC DOCUMENT — No. 12. 33 

up its business ; and that the new corporation shall have all the 
franchises and rights, and be subject to all the duties and restric- 
tions, of each of the constituent corporations, and of all general 
laws applicable to gas companies. Thus far the act appears to be 
permissive. Section 11, however, being the section referred to in 
the resolution of your honorable body, provides as follows: "If 

at the expiration of months from the passage of this act, any 

of the companies named in section one shall have failed or neg- 
lected to execute and complete the agreement mentioned in section 
two in the manner therein described, the board of gas and electric 
light commissioners shall proceed to determine the terms and con- 
ditions upon which such companies shall be included in the con- 
solidation provided by this act, and, for the purpose of determining 
said terms and conditions, may notify such companies to appear 
before said board, to be heard relative thereto. If such companies 
or any of them shall thereafter accept the terms and conditions 
determined by the board as aforesaid, the companies so accepting 
shall thereafter be subject to the provisions of this act in all re- 
spects as if the terms and conditions had been agreed to in the 
manner provided in section two. If such companies or any of 

them shall within days after notice thereof fail to accept the 

terms and conditions so determined, the supreme judicial court 
shall, upon petition of said board, declare the charter of the 
companies so failing to be revoked and annulled, and may issue 
such further orders and decrees relative to the property and busi- 
ness of said companies as said board may deem necessary and 
advisable." 

There can be no doubt that, if the legislative body has the right 
to repeal the charter of a corporation, it may provide that the 
repeal of the charter shall be conditional upon the happening of 
some future event. St. 1893, c. 474, is an example of such legis- 
lation. By that statute it was provided that the charter of the 
Bay State Gas Company should be revoked and annulled on the 
first day of December following the passage of the act, unless 
the corporation should, prior to said first day of December, pro- 
cure the cancellation and discharge of a certain obligation issued 
by the company and outstanding at the date of the passage of the 
act. 

A similar statute, enacted by the Legislature of Connecticut, has 
been sustained by the supreme court of that State. Lothrop v. 
Stedman, 42 Conn. 583. The statute in that case provided that 
the charter of a corporation should be repealed on a given date, 
unless before that time the corporation should receive a certificate 
that the deficiency in its assets had been supplied, with provision 



34 ATTORNEY-GENERAL'S REPORT. [Jan. 

for the determination of any disagreement as to the amount of its 
assets by the Supreme Court. Judge Shipman, in delivering the 
opinion of the court, said : " A valid statute may be passed to take 
effect upon the happening of some future event. Certain, or un- 
certain, it is a law in presently to take effect in futuro. The 
event, or change of circumstances, must be such as, in the judg- 
ment of the Legislature, affects the question of the expediency of 
the law. The Legislature in effect declares the law inexpedient if 
the event should not happen, expedient if it should happen. They 
appeal to nobody to judge of its expediency." 

These considerations, in my judgment, are decisive of the gen- 
eral inquiry submitted to me. I observe, however, that, instead 
of enacting in express terms that the charter shall be repealed, the 
section provides that the Supreme Judicial Court " shall, upon 
petition of said board, declare the charters of the companies so 
failing to be revoked and annulled." I doubt whether this lan- 
guage is sufficient. The Legislature may not, in my opinion, dele- 
gate to the court authority to annul the charter of a corporation 
for failure to perform the acts authorized by the proposed statute. 
The section should be amended so that the repeal is the act of the 
Legislature, and not of the court. It was probably intended by 
the framer to provide for a determination by the court of the exist- 
ence of the facts upon the happening of which the charters are to 
be repealed. This the Legislature may do ; but the repeal itself 
must be enacted by the Legislature in express terms. 

I therefore answer the questions of your honorable body as fol- 
lows : — 

First. — If the proposed section be so amended as to contain an 
express provision that the charters of the companies enumerated 
shall be repealed upon the contingency set forth, such a provision 
will be constitutional, and can be enforced 

Second. — A law requiring two or more gas companies to consoli- 
date, without the consent of such companies, is not within the 
constitutional power of the Legislature ; but a law providing that 
the charters of corporations shall be repealed unless they see fit to 
consolidate, will be constitutional and can be enforced. 
Very truly yours, 

HosEA M. Knowlton, Attorney- General. 



1900.] PUBLIC DOCUMENT — No. 12. 35 



Topographical Survey Commission — Boundary Liiie between Mas- 
sachusetts and Rhode Island — Prescription. 

The Topographical Survey Commission have no authority, under Res. 
1897, c. 88, to change any portion of the boundary line between 
Massachusetts and Rhode Island, as fixed by a decree of the Supreme 
Court of the United States, in compliance with the wishes of cer- 
tain adjacent inhabitants, who supposed they lived in Rhode Island, 
but who find upon the marliing of the line that they live in Massachu- 
setts. 

Quaere: Whether Rhode Island, by exercising jurisdiction over a portion 
of Massachusetts territory since the decree, and in face of the injunc- 
tion therein, could gain any prescriptive right of jurisdiction over sucli 

territory. 

April 29, 1899. 

Desmond Fitzgerald, Esq., Chairman, Topographical Survey Com- 
mission. 

Dear Sir : — Your letter of April 3, states the following facts : — 

The Topographical Survey Commissioners, acting with a special 
commission appointed for the purpose by the State of Rhode Island, 
were directed by Res. 1897, c. 88, to re-mark a portion of the 
boundary line between the two States, and to substitute in place 
of certain indeterminate contour lines a series of straight lines. 
This w^ork was carried out by the two commissioners, and stone 
bounds were set, marking the line agreed upon throughout its 
length. After this marking was completed, it was brought to the at- 
tention of the commissioners that certain houses near the boundary 
line between two portions thereof were on the Massachusetts side 
of the line, although their owners had previously supposed that 
they were on the Rhode Island side. 

So much of the resolve as is material to the present question is 
in the following words, to wit: " Resolved^ That the commission- 
ers on the topographical survey and map of Massachusetts are 
hereby authorized and directed, acting with any officer or agent 
who may be authorized or appointed for a like purpose by the state 
of Rhode Island and Providence Plantations, to locate, define and 
mark by appropriate monuments a series of straight lines along the 
jurisdictional line between the territory of the Commonwealth of 
Massachusetts and the state of Rhode Island and Providence Plan- 
tations, from the so-called ' Burnt Swamp Corner,' in Wrentham, 
southerly to the sea, said straight lines to follow as near as may 
be the line established by a decree of the supreme court of the 
United States, dated the sixteenth day of December in the year 
eighteen hundred and sixty-one." 

Your letter further states that the marking of the line as defined 
by the decree of the United States Supreme Court in 1861 was very 



36 ATTORNEY-GENERAL'S REPORT. [Jan. 

imperfect ; that at the places referred to there were no marks from 
which the inhabitants could determine the exact location of the line 
without a comparatively expensive survey ; and that certain in- 
habitants of Rhode Island have purchased land and erected houses 
there since 1861, but without taking measures to determine the ex- 
act location of the line definitely ; and that, as their previous 
political relations had been with Rhode Island, and as the public 
charges of the Rhode Island town were less than those of the 
town in Massachusetts, they had made no effort to secure a change, 
and still wish to continue their present affiliations. The Rhode 
Island town has also extended its water pipe to a point east of the 
line, and lias set a fire hydrant there, and maintains the highway 
as far as the water pipe extends. Your letter further states that, 
in view of these facts, the Rhode Island commissioners suggest that 
such action be taken as will modify the line at these points to con- 
form to the wishes of such inhabitants, and that the line decreed 
by the Supreme Court in 1861 has been modified by the action of 
these people and the authorities of the two towns. 

Your letter requests the Attorney-General to advise the commis- 
sion as to its authority in the matter, and upon the question whether 
any claim of adverse possession is valid to the extent of modifying 
the line laid down by the Supreme Court. 

It appears that the line fixed by the decree of the Supreme Court 
in the locality in question was a straight line between two fixed 
points, and that the territory in question is upon the Massachusetts 
side of such straight line. By that decree the State of Rhode 
Island was perpetually enjoined and restrained from exercising 
jurisdiction eastwardly of said line, and the State of Massachusetts 
was likewise enjoined and restrained from exercising jurisdiction 
westwardly of said line. Permanent stone monuments were ordered 
by the decree to be erected at the termini of these straight lines, 
and the decree in that respect has been complied with. 

I do not deem it necessary, for the purpose of answering your 
question, to determine whether any rule of prescription is applica- 
ble between two States, to the extent that property within the 
borders of one State can be acquired by the prescribing State. 
The question is discussed to some extent in Rhode Island v. Massa- 
chusetts, 15 Peters, 233, 273. Although that case determined only 
that the ordinary rule of prescription as between individuals does 
not apply to sovereign States, and leaves it somewhat uncertain as 
to whether there can be any such thing as obtaining territory by 
prescription in such cases, I think the reasoning adopted by the 
court leads to the conclusion that it would be difficult for a State 
to establish a claim to territory in such a way. Moreover, it may 



1900.] PUBLIC DOCUMENT — No. 12. 37 

be considered as at least doubtful whether title by prescription 
could be acquired under any circumstances, in the face of a perpetual 
injunction of the court binding upon the parties to the controversy. 

However this may be, I am clearly of the opinion that the 
resolve under which you and the other commissioners act does not 
confer upon you jurisdiction to pass upon any such question. 
The decree of the Supreme Court of the United States fixed the 
line. Tliat being so, your only duty is to determine the line so 
fixed, and to mark it by suitable bonds. If, for any reasons, the 
line in the locality in question should be changed to conform to 
the wishes of the people affected, action to that end should be 
taken by the States themselves. 

Your duties are, in some though not in all respects, analogous 
to those of selectmen of towns when perambulating lines between 
towns, whether in this State or upon the borders of another State, 
under the provisions of Pub. Sts., c. 27, §§3 and 6. It is well 
settled that in the performance of those duties selectmen have no 
authority to change the boundaries or to adjudicate upon the limits 
of towns, but only to ascertain existing lines. Gommoyiwealth v. 
Heffron, 102 Mass. 148. How far you might be authorized to 
determine a line left in doubt under the decree of the court, it is 
unnecessary to consider. The facts submitted to me show that there 
is and can be no doubt as to the line intended in the decree. 
Yours very truly, 

HosEA M. Knowlton, Attorney-General. 



Savings Banks — AutJiorized Investments — Bonds of the Chicago, 
Burlington & Quincy Railroad Company. 

In determining whether the bonds of the Chicago, Burlington & Quincy 
Raih'oad Company are investments which savings banks are author- 
ized to take by St. 1899, c. 269, payments to sinking funds and interest 
upon sinking funds are to be considered as earnings of the company. 

May 17, 1899. 
Starkes Whiton, Esq , Chairman, Commissioners of Savings Banks. 

Dear Sir: — Your letters of May 3 and May 13 require the 
opinion of the Attorney-General upon the question whether the 
bonds of the Chicago, Burlington & Quincy Railroad Company 
are, on the facts stated in your letters, investments whicli savings 
banks are authorized to take under the acts of the Legislature 
passed this year. 

The statute referred to (St. 1899, c. 269) provides that, in ad- 
dition to the investments already authorized, savings banks and 



38 ATTORNEY-GENERAL'S REPORT. [Jan. 

institutions for savings may invest their deposits and the income 
derived therefrom in the bonds of certain railroads specified in the 
act, including among them the Chicago, Burlington & Quincy Rail- 
road Company, "^)?-0'yiV/ec/, . . . that each railroad whose bonds are 
hereby authorized for investment shall have earned and paid regu- 
lar dividends on all its issues of capital stock of not less than four 
per cent, each fiscal year for the ten years next preceding such 
investment." 

It appears from your letters that the only doubt that exists is in 
relation to the net income of the railroad in question for the year 
1896. The statement for that year, as submitted in your letter of 
May 13, is as follows : — 

Net earnings from operating, $11,515,98*4 68 

Miscellaneous income, 358,740 05 

Land sales, 31,583 35 

Income from securities in siukino; funds, . . . 478,153 78 



$12,384,461 86 
Payments : — 

Interest on bonds, .... $8,252,778 08 

Rent of tracks, etc., . . . 409,275 15 8,662,053 23 



$3,722,408 63 
Dividends, 3,280,111 00 



Surplus, $442,297 63 

Although this statement shows a surplus of $443,297.63, it in- 
cludes income from securities in sinking funds to the amount of 
$478,153.78, and it does not include payments by the corporation 
to its sinking fund during the year from earnings of the road to 
the amount of 8777,784.56. The report of the directors of the 
corporation for the year 1896 includes the payments into the sink- 
ing fund among the expenses of the road, and omits the income 
from sinking fund securities, and thus shows an apparent deficit 
after the payment of a dividend of four per cent. 

The precise question proposed, therefore, is whether payments 
to sinking funds should be charged to income, and interest earned 
on sinking funds held by the company should be added thereto. If 
snch payments are to be charged to income, and the interest upon 
sinking funds is not to be included in the income, then there is a 
deficit, and the company has not brought itself within the limits of 
the proviso above quoted ; otherwise it has. 

A railroad may be said to have earned its dividend when its in- 
come from its property and business exceeds the amount of its 
fixed charges, including operating expenses and interest on its 



1900.] PUBLIC DOCUMENT — No. 12. 39 

debt, by more than the amount of the dividend. The payment, in 
whole or in part, by the company of a pre-existing debt, is no part 
of the expenses which are to be deducted in determining the ques- 
tion of its earnings for any given year. The company is neither 
better nor worse off by the payment of its debts or any portion of 
them. It might well use all its gross earnings in any given year 
for the payment of maturing bonds, and still be warranted in bor- 
rowing money temporarily to pay a dividend to its stockholders. 
It would be as well able to pay a dividend as it would have been if 
it had not paid its debts, but had used its income for the purposes 
of dividend. The debts of a railroad corporation represent, ordin- 
arily, and perhaps in all cases, that portion of the cost of the road 
which is not paid for. If a road does not earn dividends until the 
expense of the cost of the road is paid, there is probably not a road 
in the country which could properly be said to earn the dividends 
it pays from year to year. For example, if a road were built 
wholly upon credit, and earned in the first five years enough to 
pay for the cost of the road over and above its operating ex- 
penses, it would make no difference whether the amount so earned 
should be appropriated wholly to pay the debt, or in part to pay 
the debt and the balance to pay dividends. In either case it 
earned enough to pay dividends. In other words, the net earnings, 
whether of a railroad or of any other corporation, or even of an 
individual, are none the less real, whether invested in the payment 
of debts or used for other purposes. If, in the case of a corpora- 
tion, they are used to pay dividends and not debts, they are still 
earned. 

I understand this principle to be universally recognized as sound. 
It follows that the same rule should apply to payments to sinking 
funds. A sinking fund is merely a sum of money set aside to pay 
a debt. It remains the property of the company, and, although it 
may be pledged for the payment of the debt, as I understand to be 
the case here, payments to sucli fund do not weaken the earning 
capacity of the road, any more than would the payment of the 
debt itself. If, instead of being appropriated to sinking funds, 
the amount had been used for the payment of a portion of its 
bonds, the result would be the same, and would bring the case 
within the doctrine above stated. 

So, too, with earnings from sinking funds. Such earnings are 
from the property of the road, and are no less earnings than those 
which accrue from other parts of its plant. They belong to the 
credit side of the earning account, and, whether added to the sink- 
ing fund itself, or used to pay interest on a debt (as I understand 
may be the case here), are a part of the income of the road, and 



40 ATTOKNEY-GENERAL'S REPORT. [Jan. 

are to be considered in ascertaining the total amount of its net 
earnings. 

I am of opinion, therefore, upon the facts stated, that the Chi- 
cago, Burlington & Quincy Railroad Company earned and paid a 
regular dividend of four per cent, in the year 1896, within the 
meaning of the statute referred to. I am informed that no ques- 
tion arises upon any other years ; and it follows that its bonds are 
a lawful investment under the existing law for savings banks and 
institutions for savings. 

Yours very truly, 

HosEA M. Knowlton, Attorney- General. 



State Board of Health — Authority to extend Time originally fixed 
for Discharge of Seioage of Pittsfield into Housatonic River. 

The State Board of Health did not exhaust its authority under St. 1890, 

c. 357, § 1, by approving a general plan for the construction of a sj^stem 

of sewerage for the city of Pittsfield, and may entertain a petition by the 

city for an extension of the time originally fixed for the discharge of 

sewage into the Housatonic River. 

May 18, 1899. 

Henry P. Walcott, Esq., Chairman, State Board of Health. 

Dear Sir: — The city of Pittsfield has applied to the State 
Board of Health for an extension of time during which sewage may 
be discharged into the Housatonic River, and the State Board of 
Health requests the opinion of the Attorney-General upon the ques- 
tion whether it has a right to make such extension, 

St. 1890, c. 357, § 1, provides: "The city of Pittsfield, upon 
the organization of its municipal government, is hereby author- 
ized, through a board of commissioners to be elected as hereinafter 
provided, to lay out, construct and maintain a system or systems 
of sewerage and sewage disposal for said city in accordance with 
any general plans which have been or may be approved by the 
state board of health." On May 12, 1891, under the authority of 
this act, the Board of Health approved a general plan for a system 
of sewerage and sewage disposal, which provided for the perma- 
nent disposition of the sewage by intermittent filtration through 
certain areas of upland, and allowed the temporary discharge of 
the sewage into the Housatonic River during the construction 
of the works ; but provided that such discharge should not con- 
tinue after June 1, 1900. The city now desires to continue the 
discharge after that date. 

The question upon which an opinion is requested is, whether the 
Board of Health, by approving a general plan once, providing that 



1900.] PUBLIC DOCUMENT — No. 12. 41 

the temporary discbarge into the river should not continue after 
1900, thereby exhausted its authority, so that it cannot now enter- 
tain a petition by the city for an extension of the time during which 
sewage may be discharged into the river. 

If the Board had the right to authorize for any period of time the 
discharge of sewage into the Housatonic River, I have no doubt of 
its authority to authorize an extension of the time so limited. The 
statute gives to the Board authority to approve the general plans 
for the construction of a sewerage system in the city of Pittsfield. 
That authority is not, in my judgment, exhausted by a single 
act of approval. Modifications of the general plan may be shown 
to be necessary ; and I cannot believe it to be the intention of the 
act that the State Board, having once approved a plan submitted 
to it, cannot for good reasons approve a modification of the original 
plan. The act does not contemplate a single act of jurisdiction 
upon the subject, whereby the authority of the Board is exhausted, 
but a general supervision, extending as far as may be necessary 
to the accomplishment of the work proposed. 

If it may act, from time to time, in relation to the approval of 
general plans, it may, in my judgment, also act to extend the time 
approved for the temporary discharge of sewage made necessary 
by the execution of such plans. 
Very truly yours, 

HosEA M. Knowlton, Attorney -General. 



Pilots of Boston Harbor — Regulation to combine Pilot Boats 
and Pilotage Fees. 

The regulations for the pilotage of Boston harbor, annexed to St. 1862, 
c. 176, and expressly continued in force by Pub. Sts., c. 70, § 40, for- 
bid the commissioners of pilots to combine the pilot boats and earn- 
ings, so that all the Boston pilots will receive the same amount. 

May 25, 1899. 
Messrs. John C. Ross and Justus A. Bailey, Pilot Commissionei^s. 

Gentlemen : — Your letter of March 15 requires the opinion of 
the Attorney-General upon the question whether your Board has 
the right " to combine the pilot boats and earnings, so that all the 
Boston pilots will each receive the same amount." 

The regulations for the pilotage of Boston harbor, annexed to 
St. 1862, c. 176, are expressly continued in force under the pro- 
visions of Pub. Sts., c. 70, § 40. Among those regulations is the 
following: " Any commissioned pilot for the harbor of Boston, 
that may be found mating or combining, or in any way interested 



42 ATTORNEY-GENERAL'S REPORT. [Jan. 

with any other pilot in the business of pilotage, except with those 
pilots belonging to the same boat with himself, shall be liable to 
forfeit his commission." The obvious purpose of this regulation, 
in connection with the statutes (Pub. Sts., c. 70, §§ 25, 26 and 
27), which make the pilotage fees payable to the first pilot offering 
his services, is to secure the vigilance and attention to duty which 
comes of competition and rivalry. It would be otherwise if a 
combination were made, by which pilots were assured of their fees, 
whether they were diligent or not. 

Pilots, therefore, have no right to combine their earnings ; much 
less has your Board, charged with the duty of enforcing the law, 
the right to establish by regulation what would amount practically 
to a repeal of the provisions I have referred to. 
Very truly yours, 

HosEA M. Knowlton, Attorney -General. 



Public Records — Preservation of Town Records — Duty of Select- 
men. 

The duty imposed upon selectmen by St. 1897, c. 439, § 10, to provide fire- 
proof vaults for the public records of the town, is not conditioned 
upon action or appropriation by the town, and such officers may incur 
the expense of compliance with the law, and the city or town is obliged 

to reimburse them. 

May 26, 1899. 
Robert T. Swan, Esq., Commissioner of Public Records. 

Dear Sir: — The duty resting upon selectmen by St. 1897, 
c. 439, § 10, to " provide and maintain fireproof rooms, safes and 
vaults " for the keeping of the public records of their towns, is not 
conditioned upon appropriation for that purpose by the town or 
action thereto by the town in a town meeting. It rests upon the 
town officers. I have heretofore advised you, in a letter dated 
Sept. 21, 1897 (1 Op. Att-Gen., 484), that a person upon whom 
such a duty rests may incur the expense of compliance with the 
law, and that the city or town is obliged to reimburse him therefor. 
The same principle applies in the case submitted. 

If you are unable to enforce the provisions of the statutes re- 
lating to the preservation of public records, it is your duty to 
report the matter to the Attorney-General, with the facts, that he 
may take such action as he thinks proper in the premises. 
Very truly yours, 

Hosea M. Knowlton, Attorney-General. 



1900.] PUBLIC DOCUMENT — No. 12. 43 



State Highiuays — Expense of repairing when occupied by Street 
Railway Tracks. 

St. 1898, c. 578, relieves street railway companies from the duty formerly 
imposed upon them of keeping in repair a portion of the streets in 
which their tracks are located, and the Commonwealth must bear all 
the expense of repairing State highways occupied by street railway 
tracks, although the towns in which such highways are receive the tax 
which the statute of 1898 imposes upon the street railway companies 
in substitution for the duty of keeping in repair a portion of the 
streets occupied by their tracks. 

May 26, 1899. 

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

Dear Sir : — Your letter of April 17 requires the opinion of the 
Attorney-General upon the following question: "If repairs are 
necessary on or beside a street railway located on a State highway, 
on that part of the road constructed by the street railway company, 
is the street railway company, the town in which the highway lies, 
or this commission, obliged to bear the expense of making such 
repairs? " 

The inquiry discloses an apparent omission in the recent legis- 
lation touching street railways, which your commission may deem 
it proper to call to the attention of the Legislature. St. 1898, 
c. 578, radically changed the duties and obligations of street rail- 
way companies, in reference to the repair of the streets occupied 
by their tracks. Under the prior law (Pub. Sts., c. 113) it was 
the duty of the street railway company to keep in repair the por- 
tion of the highway between its tracks, and in unpaved streets a 
space of eighteen inches on each side of the portion occupied by 
its tracks. But by the later statute (St. 1898, c. 578, § 26) street 
railway companies are relieved from the duty of keeping in repair 
any portion of the streets occupied by their tracks. In substitu- 
tion therefor, provision is made in §§ 7, 8, 9 and 10, for the pay- 
ment of an annual tax by street railway companies to the cities 
and towns in which their tracks are situated. This tax is to be ap- 
plied by such cities and towns (§ 10) " towards the construction, 
repair and maintenance of the public ways, and removal of snow 
therefrom, within such cities and towns." 

The provisions of the statute of 1898, however, make no refer- 
ence to State highways. The statutes relating to such ways im- 
pose upon the Commonwealth the whole duty of keeping them in 
repair. A State highway having been laid out and constructed by 
the State Highway Commission, it is to be " kept in good repair 
and condition as a highway by said commission at the expense of 
the Commonwealth." St. 1897, c. 355, § 1. Inasmuch as the tax 



44 ATTORNEY-GENERAL'S REPORT. [Jan. 

imposed under the provisions of the statute of 1898 is for the pur- 
pose of keeping the way occupied by a railway company in repair, 
it would seem equitable that so much of the tax as represents 
those of the ways in a municipality which are State highways 
should be paid to the Commonwealth. 

The statutes do not so provide, however. On the contrary, as 
they stand, I am constrained to advise j^ou that the towns may re- 
ceive the whole tax, while the duty of repairing State highways 
rests upon the Commonwealth, without right of reimbursement 
either from the municipality or from the street railway company. 
Very truly yours, 

HosEA M. Knowlton, Attorney-General. 



Analysis of Milk Samples — Person to he dealt with — Attorney- 
General. 

The word " analysis," as used in St. 1899, c. 169, § 1, is to be interpreted 
as signifying the result of the analysis. 

That statute requires only that the result of whatever, if any, analysis is 
made by the authority of the Dairy Bureau should be communicated 
to the person from whom the sample is taken. 

The person to be dealt with by the Dairy Bureau is the person who would 
be legally responsible in the event of prosecution. 

The Attorney-General will not advise a State Board what will be the effect 
upon proceedings in court instituted by it of its compliance or non- 
compliance with certain provisions of law. It is the business of the 
Board to comply with the law. 

June 1, 1899. 

Geo. M. Whitaker, Esq., Acting Executive Officer, Dairy Bureau. 

Dear Sir : — Your letter of May 26 requires my opinion upon 
certain questions relating to the construction of St. 1899, c. 169, 
§ 1, which is as follows : — " Whenever the state board of health, 
dairy bureau, or other state or city authority obtains a sample of 
milk for inspection, by taking, purchase or otherwise, the analysis 
of said sample shall, within ten days of the procurement thereof, 
be sent to the person from whom the sample was obtained." 

The questions submitted are as follows : — 

" First. — An analysis is a process or an operation, and cannot 
be sent to any one by mail, messenger or otherwise. It was doubt- 
less the intent of the Legislature to order the sending of the state- 
ment of the result of the analysis. Is the law null and void by 
reason of requiring an impossibility, or shall we comply with what 
we assume to be its evident intent?" 

Statutes are to be construed, if possible, in such a way as to 
make them intelligible and practicable. It was obviously not the 



1900.] PUBLIC DOCUMENT — No. 12. 45 

intention of the Legislature to require the operation itself to be sent 
to the person from whom the sample was obtained. Such a con- 
struction would be absurd. The word " analysis," as used in the 
section, is to be interpreted as signifying the result of the analysis. 

Your letter further states that samples of milk taken by your 
inspectors '' are subjected to preliminary tests for the purpose of 
weeding out the samples which are above suspicion, and stopping 
further expense so far as they are concerned," and that suspicious 
samples go to the chemist, in order that the chemist may do various 
things according to circumstances ; that " he may make no analy- 
sis at all, but test the milk for the presence of preservatives ; " or 
" he may merely evaporate the water, to ascertain the percentage 
of total solids ; " or in some cases he may make further determina- 
tion of the amount of fat and of ash ; but that in no case is a com- 
plete analysis made. 

Upon these facts you inquire (second and third) whether the 
law requires you to change your practice, and make an analysis 
of every sample that comes into your possession, or will the require- 
ments of the law be met by a partial analysis of the sample, — that 
is, so much of an analysis as you would make if enforcing the laws 
against adulterated or low-standard milk. 

The law does not impose upon you the duty of complete analysis. 
It only requires you to report to the person from whom you took 
the sample the result of whatever, if any, analysis is made by au- 
thority of your Board. 

A further question contained in your letter is as follows : — 

^^ Fourth. — Are the words 'the person from whom the sample 
was taken' to be construed literally, said person being frequently 
a driver, salesman, clerk or waiter, or does the law mean the per- 
son whom we would hold legally responsible in the event of prose- 
cution, — the proprietor or manager of the business?" 

I am of the opinion that the intention of the law is carried out 
if you deal with the person who would be legally responsible in the 
event of prosecution. 

Your fifth question does not, in my judgment, call for a reply. 
It calls for my opinion upon the effect upon proceedings in court of 
compliance or non-compliance with certain provisions of the law. 
It is the business of the Board to comply with the law. It is the 
business of the courts to deal with the cases that are presented. 
How far compliance or non-compliance with a law may affect the 
decision of the courts in prosecutions instituted by you, is a matter 
for judicial determination. 

Yours truly, 

HosEA M. Knowlton, Attorney- General. 



46 ATTORNEY-GENERAL'S REPORT. [Jan. 



Retired Justice of Supreme Court — Salary. 

It was not the intention of the Letjislature to terminate b}' St. 1899, c. 310, 
the salary of a retired Justice of the Supreme Court, to which he was 
entitled hy St. 1885, c. 162. The act of 1899 is to be taken as a con- 
tinuance, and not as a repeal, of the older statute 

Such salary shall be certified as payable under the provisions of the statute 
of 1899 

June 2, 1899. 

lion. John W. Kimball, Auditor. 

Dear Sir : — The opiDion of the Attorney-General is required 
upon the question whether further legislation is necessary, in view 
of the following facts : — 

St. 1885, c. 162, provides that " Any justice of the supreme 
judicial court . . . who shall resign his office, shall during the resi- 
due of his natural life receive three-fourths of the salary which 
was by law payable to him at the time of his resignation." 

By St. 1887, c. 420, a similar provision was made for the justices 
of the Superior Court, excepting that the amount to be paid an- 
nually upon their retirement should be one-half of the salary pay- 
able at the time of such retirement. 

A justice of the Supreme Judicial Court retired while the act 
first above quoted (St. 1885, c. 162) was in force, and became en- 
titled to and has hitherto received the annual salary provided for 
in that act. 

An act of the present Legislature (St. 1899, c. 310) provides 
in the first section that " A justice of the supreme judicial court or 
of the superior court who shall resign his office, . . . shall, dur- 
ing the remainder of his natural life, receive an amount equal 
to three-fourths of the salary by law payable to him at the time 
of his resignation." The effect of this section is to increase the 
amount payable to the justices of the Superior Court, and to 
continue the existing provision for justices of the Supreme Judi- 
cial Court. Section 3 of this act expressly repeals the former 
acts, including the one under which the retired justice in question 
has hitherto been paid. 

Your question is, whether the repealing clause of the act of this 
year has taken away the authority for the payment of the salary to 
the retired justice who has hitherto been receiving a salary, the law 
authorizing such salary having been expressly repealed. 

'' It is a familiar rule of construction, that when statutes are re- 
pealed by acts w^hich substantially retain the provisions of the old 
laws, the latter are held not to have been destroyed or interrupted 
in their binding force. ' In practical operation and effect they are 
rather to be considered as a continuance and modification of old 



1900.] PUBLIC DOCUMENT — No. 12. 47 

« 
laws, than as an abrogation of those old, and the re-enactment of 

new ones.' Shaw, C. J., in Wright v. Oakly, 5 Met. 400, 406." 

United Hebrew Benevolent Association v. Benshimol, 130 Mass. 325, 

327 ; Endlich on the Interpretation of Statutes, § 490. 

The rule thus stated applies to the present case. It was not the 
intention of the Legislature, even if it were within its constitutional 
power (which may be questioned), to terminate the salary of the 
retired justice who had become entitled thereto under the law re- 
pealed. The act of this year is to be taken as a continuance, and 
not as a repeal, of the older statute. 

The salary should be certified by your office as payable under 
the provisions of the statute of this year. 
Yours truly, 

HosEA M. Knowlton, Attorney -Geiieral. 



Labor — Corporation — Coercion of Employee into Contract not to 
join Labor Organization. 

A requirement by a corporation that its employees shall agree, as a condi- 
tion of employment, not to take any action, secretly or otherwise, either 
by themselves or by joining with others, with the intent to interfere 
with the continuous running of the corporation's business, is not in viola- 
tion of St. 1894, c. 508, § 3, providing that no corporation shall coerce 
or compel any person into an agreement not to join any labor organi- 
zation, as a condition to securing employment or continuing in the 
employment of such corporation, 

JuxE 16, 1899. 

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

Dear Sir : — St. 1894, c. 508, § 3, so far as the same is material 
to the question submitted in your letter of June 9, is as follows : 
"No . . . corporation . . . shall coerce or compel any person 
or persons into any agreement, either written or verbal, not to join 
or become a member of any labor organization, as a condition 
of such person or persons securing employment or continuing in 
the employment of any such . . . corporation." In the case stated 
by you in your letter a certain corporation has caused notice to be 
posted, containing, among other things, the following : — 

The proprietors of this factory hereby announce to all who desire to 
contract for the perform a.nce of any labor therein, that after prices, 
terms and conditions of said labor are mutually agreed to, each shall 
consent in writing to the following : — 

Having agreed to labor in the factory at until Nov. 

19, 1899, upon certain prices and terms, and with full knowledge of 
conditions existing in factory, I hereby further agree that I will not, 



48 ATTORNEY-GENERAL'S REPORT. [Jan. 

« 

until Nov. 19, 1899, either by myself or joining with others, take any 
action, secretly or otherwise, with the intent to interfere with the con- 
tinuous running of the factory ; and that I will not recognize any au- 
thority which makes requests or gives orders contrary to the letter and 
spirit of this agreement. 

I am of opinion that this notice does not constitute a violation 
of the statute above quoted. It may, perhaps, be in violation of 
the intent of the framers of the act ; but penal statutes are to be 
construed strictly, and their language is not to be extended by 
implication. The prohibition of the statute is against coercing 
a person into agreeing not to join a labor organization. The 
notice provides that the person accepting employment shall not 
take any action which shall Interfere with the running of the fac- 
tory, and that he will not recognize any authority which makes re- 
quests or gives orders contrary to such agreement. Even if it be 
true that labor organizations may see fit at times to attempt inter- 
ference with the continuous running of the business of employers, 
the notice is, nevertheless, not in terms within the prohibition of 
the statute. An agreement not to do a specified thing is not, in 
construing a penal statute, equivalent to an agreement not to join 
an organization which may perhaps seek, as such an organization, 
to do the thing the employee, by accepting the employment, has 
agreed not to do. 

Yours very truly, 

HosEA M. Know^lton, Attorney-General. 



Foreign Corporation — Manufacturing and selling Intoxicating Liq- 
uors — Admission to do Business in this Commomvealth. 

A domestic corporation may, if duly licensed, sell intoxicating liquors 
within the Commonwealth. A foreign corporation, one of the pur- 
poses of which is the sale of intoxicating liquors, cannot be said to be 
carrying on a business the transaction of which by domestic corpora- 
tions is forbidden in this Commonwealth, and it is the duty of the 
Commissioner of Corporations to accept and file the papers of such 

corporation. 

June 16, 1899. 
Hon. Charles Enuicott, Commissioner of Corporations. 

Dear Sir: — Your letter of June 2 states that a foreign corpo- 
ration, organized for the purpose of manufacturing and selling in- 
toxicating liquors, has applied for permission to file its papers with 
your office, under the provisions of St. 1884, c. 330. The opinion 
of the Attorney-General is requested upon the question whether it 
is the duty of the commissioner to refuse to file such papers, as 
being prohibited by St. 1894, c. 381. 

The latter statute provides as follows: "It shall be unlawful 



1900.] PUBLIC DOCUMENT — No. 12. 49 

for any corporation, association or organization of another state 
or country, except life insurance companies as provided in chapter 
two hundred and fourteen of the acts of the year eighteen hundred 
and eighty-seven, to engage or continue in the Commonwealth in 
any kind of business the transaction of which by domestic corpo- 
rations is not permitted by the laws of the Commonwealth. The 
commissioner of corporations . . . shall refuse to accept or file 
the charter, financial statement or other papers, or accept appoint- 
ment as attorney for service for any corporation, association or 
other organization doing a business in this Commonwealth, the 
transaction of which by domestic corporations is not then per- 
mitted by the laws of the Commonwealth." 

In a letter to you dated Jan. 2, 1896 (1 Op. Atty.-Gen., 304), 
I stated it as my opinion that a corporation organized under the 
general laws may not sell intoxicating liquors in this Common- 
wealth. In the recent case, however, of Enterprise Brewing Co. 
V. Grime, 173 Mass. 252, the Supreme Judicial Court has deter- 
mined otherwise. The corporation in question in that case was 
formed for the purpose of manufacturing and selling beer, ale and 
malt liquors. But the opinion of the court proceeds upon the 
ground that a license to sell intoxicating liquor may be lawfully 
granted, under the provisions of our statutes, to a corporation. 
Yielding to the authority of that decision, I am constrained, there- 
fore, to advise you that a domestic corporation may, if duly 
licensed, sell intoxicating liquors within the Commonwealth. That 
being so, and it appearing that one of the purposes of the foreign 
corporation in question is to sell intoxicating liquors, it cannot be 
said to be carrying on a business the transaction of which by do- 
mestic corporations is forbidden in this Commonwealth. If other 
provisions of the law are duly complied with, it is your duty to file 
the papers of the corporation in question. 
Very truly yours, 

HosEA M. Knowlton, Attorney -General. 



Metropolitayi Park Commission — Authority to erect Buildings 
without Permits from Local Authorities. 

The Metropolitan Park Commission may erect buildings on metropolitan 
parli reservations within the limits of the city of Boston without ob- 
taining building permits from the local authorities. 

June 23, 1899. 

John Woodbury, Esq., Secretary, Metropolitan Park Commission. 

Dear Sir : — Your letter of June 19 states that the Metropoli- 
tan Park Commission has made arrangements for the erection of a 
building on the Charles River reservation, a tract of land owned 



50 ATTORNEY-GENERAL'S REPORT. [Jan. 

b}' the Commonwealth, and in charge of the commission. The 
opinion of the Attorney-General is requested upon the question 
whether it is necessary for the Board to obtain building permits 
of the city of Boston. 

The statutes creating the Metropolitan Park Commission give 
the Board power to erect buildings. St. 1894, c. 288, § 3 ; St. 1894, 
c. 483, § 3 ; St. 1895, c. 450, § 1. The parks are the property of 
the Commonwealth ; and the Board, in erecting buildings thereon, 
acts as the agent of the Commonwealth in exercising the authority 
of the sovereign over its own property. Its acts are the acts of 
the Commonwealth. In the exercise of the authority thus con- 
ferred upon it it is not deemed to be subject to regulations affecting 
the citizens of the Commonwealth, unless made applicable to its 
proceedings by clear intendment of the statute establishing such 
regulation. 

St. 1892, c. 419, and acts in amendment thereof, regulate the 
erection of buildings in the city of Boston. These statutes provide, 
among other things, for the establishment by the city of Boston of 
a department for the inspection of buildings, in charge of a person 
styled an inspector of buildings. The inspector shall not give a 
permit for the erection of any building until he has become satis- 
fied that the building has sufficient strength, and that the means of 
ingress and egress are sufficient. No building may be erected 
without such permit from the inspector. An applicant for a per- 
mit whose application has been refused may appeal to a board of 
appeal provided by the statute. The statutes contain other minute 
provisions relating to the strength of timber to be used, the weight 
of iron, the size of columns, and the manner of construction of 
brick work, the compliance with which may be enforced by the in- 
spector of buildings. A person violating the provisions of these 
statutes may be punished by a fine. 

It is impossible to suppose that the Legislature by these enact- 
ments intended to limit the authority of the Commonwealth over 
its own property. The statutes are designed to secure the safety 
of citizens having occasion to occupy the buildings. It is not to 
be presumed, however, that the Commonwealth will disobey its 
own laws, nor that it is necessary that a local officer should over- 
see the work of the agents of the Commonwealth in the carrying 
on of the work of the Commonwealth itself. See 1 Op. Atty.- 
Gen., 290. 

I am of opinion that the building laws relating to the city of 
Boston have no application to the erection of buildings by the 
Metropolitan Park Commission. 
Yours very truly, 

Hose A M. Knowlton, Attorney-General. 



1900.] PUBLIC DOCUMENT — No. 12. 51 



Gas Company — Business carried on beyond Limits of Common- 
wealth — Approval of Gas and Electric Light Commissioners to 
Issues of Stock and Bonds. 

A gas company organized under the general laws of this Commonwealth is 
subject to the provisions of St. 1894, c. 450, requiring the approval of 
the Board of Gas and Electric Light Commissioners to issues of stocks 
and bonds, although all its business is carried on outside the limits of 
the Commonwealth. 

Jl-ne 27, 1899. 

FoKKEST E. Bakker, Esq., Chairman, Oas a7id Electric Light Commis- 
sioners. 

Dear Sir : — The Iowa Light, Heat and Power Company was 
organized under the provisions of the general laws of Massachu- 
setts. Its purpose is stated in its articles of incorporation to be, 
among other things, that of " purchasing or constructing, holding, 
maintaining and operating plants for the production of light, heat 
and power, by means of gas, electricity, etc." The capital stock 
is fixed at $50,000. The corporation is not engaged in business in 
this Commonwealth, but owns and operates an electric light plant 
in Marion, Iowa. The corporation has requested your commission 
to approve its issue of stock and bonds, under the provisions of St. 
1894, c. 450, — one of the statutes commonly known as the anti- 
stock-watering laws. The opinion of the Attorney-General is re- 
quested upon the question whether that statute requires you to 
approve the proposed issue in the case of the corporation in ques- 
tion, in view of the fact that it carries on no business in this 
Commonwealth. 

The statute authorizing the formation of gas companies under 
general laws (Pub. Sts., c. 106) does not in terms limit the opera- 
tions of companies so formed to the Commonwealth. On the con- 
trary, § 50 of that chapter provides in terms that " Every corporation 
which is subject to this chapter may in its corporate name purchase, 
hold, and convey such real and personal estate as is necessary for 
the purposes of its organization ; may carry on its business, or so 
much thereof as is convenient, beyond the limits of the common- 
wealth, and may there purchase and hold any real or personal 
estate necessary for conducting the same." 

It is true that many of the provisions of the statutes relating to 
gas and electric light companies are obviously limited to companies 
doing business within this Commonwealth. For example, St. 1885, 
c. 314, § 9, provides that the authorities of a town in which a gas 
company is located may complain to your Board of the quality or 
price of gas delivered, and thereupon the Board, after hearing, 
may make such order in relation to price or quality as it thinks 



52 ATTORNEY-GENERAL'S REPORT. [Jan. 

proper. Section 10 of the same chapter restrains gas companies 
from digging up the streets without the consent of the mayor and 
aldermen. St. 1886, c. 346, § 5, provides that your Board may 
order a gas company to supply gas to a person petitioning therefor, 
upon such terms as may be reasonable. These and other like pro- 
visions are plainly intended to apply only to gas companies carry- 
ing on their business in this Commonwealth. It does not follow, 
however, that none of the provisions of the statutes refer to cor- 
porations doing business without the Commonwealth. Those re- 
lating to the requisites of organizing corporations, to annual returns, 
and to the liability of directors and stockholders, must be taken to 
be applicable to all corporations alike. It may in general be said 
that all provisions relating to any specific class of corporations 
are alike applicable to all such corporations, unless it is plainly 
apparent, in view of all the circumstances, that they should be 
limited to those carrying on business within the Commonwealth. 

The statute relating to the issuing of stock and bonds by gas 
companies (St. 1894, c. 450, § 1) provides in terms as follows: 
"Gas companies and electric light companies, whether such com- 
panies are organized under general laws or under special charters, 
and however authorized to issue capital stock and bonds, shall 
hereafter issue only such amounts of stock and bonds, as may from 
time to time, upon investigation by the board of gas and electric 
light commissioners be deemed and be voted by them to be reason- 
ably requisite for the purposes for which such issue of stock or 
bonds has been authorized." 

It may fairly be assumed that the principal purpose of the Legis- 
lature in enacting this statute was to protect consumers from being 
obliged to contribute to the payment of dividends upon fictitious 
or over-valued stock ; and there is no reason to suppose that there 
was any purpose of protecting consumers in other States. It is 
also true, however, that the effect of this and of other like statutes 
relating to public service corporations is to promote confidence in 
the securities of companies organized under the laws of Massachu- 
setts. In view of the high standing which Massachusetts corpora- 
tions have attained under the legislation of the Commonwealth, 
it may be doubted whether statutes whose effect is not only to pro- 
tect the public, but also to promote confidence in the securities 
of Massachusetts corporations, were intended to be applicable to 
some corporations and inapplicable to others of the same character. 
The statute in question contains no exception whatever, and is in 
terms applicable to all corporations engaged in the business of 
supplying gas or electric lighting. 

Moreover, the corporation in question may at any time engage 



1900.] PUBLIC DOCUMENT — No. 12. 53 

in business in this Commonwealth. If it should do so, the commis- 
sion could not know its true standing nor proceed intelligently in 
the approval of stock and bonds issued for that purpose, without 
a knowledge of the situation in Iowa, where it is already carrying 
on business. 

Upon the whole, therefore, I am of opinion that the corporation 
in question is subject to the provisions of St. 1894, c. 450. The 
matter of expense to the Commonwealth need not be considered, 
for, under the provisions of St. 1885, c. 314, § 6, and St. 1887, 
c. 382, § 4, such expenses are to be borne by the corporation. 
Very truly yours. 

Hose A M. Knowlton, Attorney- General. 



Paris Exposition — Monographs as Exhibits on Part of Com- 

moivwealth. 

The Board of Paris Exposition Managers is authorized by Res. 1898, c. 91, 

to publish a series of monographs on topics illustrating the relative 

importance of Massachusetts in comparison with other States, to be 

used as exhibits on the part of the Commonwealth at the Exposition 

at Paris in 1900. 

June 27, 1899. 

Walter S. Allen, Esq., Secretary, Board of Paris Exposition 

Managers. 

Dear Sir : — Your letter of June 21 states that " one of the ex- 
hibits at the Exposition at Paris in 1900 in the department of Edu- 
cation and Social Economy is to be a printed series of monographs, 
intended for limited free distribution^ based upon which will be 
exhibits illustrative of the points made in these monographs. 
Each monograph is to cover a particular topic, and of course will 
cover that topic for the whole United States. In this group fall 
nearly all the activities of the State." 

Your letter further states that the Director of Education and 
Social Economy has invited the State of Massachusetts to furnish 
a number of these monographs, to be exhibited and catalogued as 
exhibits on the part of the Commonwealth. These will include a 
description of the work of the Commonwealth itself, but will cover 
a much larger field. The question submitted by your Board is 
whether such work is within the scope of Res. 1898, c. 91, and Res. 
1899, c. 93. 

The resolve of 1898, after establishing a Board of Paris Exposi- 
tion Managers on the part of the Commonwealth, provides that 
the Board shall have charge of the interests of the Commonwealth 
and its citizens in the preparation and exhibition "of the natural 



54 ATTORNEY-GENERAL'S REPORT. [Jan. 

and industrial products of the Commonwealth, and of objects illus- 
trating its history, progress, and material welfare and development, 
and of all other matters relating to the said exposition." The re- 
solve of 1899 appropriates the sum of fifty thousand dollars " for the 
purpose of exhibiting at the . . . exposition ... the arts, indus- 
tries, institutions, resources, products and general development of 
the Commonwealth, and for distributing at said exposition infor- 
mation to all nations relative to the manufacturing and mercantile 
business of the Commonwealth, which will assist in the export of 
Massachusetts products." 

Strictly construed, the language of these resolves does not au- 
thorize the preparation of monographs, which, as stated in your 
letter, are intended to cover a topic for the whole United States, 
and will, therefore, be a history of the development of the indus- 
try treated of not only in Massachusetts, but in other States as 
well. If the scope of the work of your commission were to be 
thus strictly defined, I should feel constrained to advise you that 
you should not enter upon the work proposed. 

I am of opinion, however, that so narrow an interpretation was 
not the intent of the Legislature. It is impossible in advance to 
prescribe the limits of such a work as the preparation of exhibits 
for an international exhibition. The field is a broad one, and is 
likely to broaden still further as the time of the exhibition draws 
near. It was undoubtedly the purpose of the Legislature to see 
to it that Massachusetts, her history, development and standing, 
were fully and adequately presented at the exposition. If your 
commission think that that can be done more satisfactorily by such 
a history as will show the relative importance of Massachusetts in 
comparison with the other States of the Union, I am of opinion 
that you are not prevented from so doing by a too strict construc- 
tion of the terms of the resolves. A large discretion is confided to 
your Board. The amount of money appropriated is fixed ; but, 
farther than the fact that your duties are limited to what may not 
be improperly called an advertisement of Massachusetts, I do not 
think you are to be held so strictly that if you deem it wise to do 
80, you may not show not merely her importance, but her relative 
importance as well, among States of the Union. 

If, therefore, in your discretion the work contemplated is so 
regarded by you, I am of opinion that the language of the resolve 
is broad enough to give you authority to enter upon its per- 
formance. 

Very truly yours, 

HosEA M. Knowlton, Attorney -General. 



1900.] PUBLIC DOCUMENT — No. 12. 55 



Licensed Firemen — Coal Shovellers in a Large Boiler Plant. 

Men employed in simply putting coal under the boilers in a large boiler 
plant, subject to the orders and directions of a licensed fireman, whose 
duty it is to take care of the water for the boilers, and direct the men 
in their work, are not required, by St. 1899, c. 368, to have licenses. 

July 6, 1899. 
RuFUS R. Wade, Esq., Chief, Massachusetts District Police. 

Dear Sir : — Your letter of June 1 requires the opinion of the 
Attorney-General upon the following question, to wit: *'In a 
large boiler plant, where many men are employed simply putting 
coal under the boilers, subject to the general orders and directions 
of a licensed fireman present in the boiler room, whose duty it is 
to take care of the water for the boilers and direct the men in their 
work, are such men required to have licenses under St. 1899, 
c. 368?" 

In an opinion to you dated Sept. 29, 1897 (1 Op. Atty.- 
Gen. 485), I advised you that "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," such men were not required to be licensed, under the pro- 
visions of St. 1896, c. 546. The statute upon which that opinion 
was given made it unlawful for any person " to have charge of, or 
to operate a steam boiler or engine" (with certain exceptions), 
unless he held a license therefor. I further stated, as the reasons 
which led me to the conclusion arrived at, that the statute was 
Intended for the security of the public and those employed or hav- 
ing business in the vicinity of steam boilers, by providing that those 
who had charge of such boilers should possess the skill necessary 
for their safe operation ; and that the word " operate," as used in 
that statute, was to be taken as meaning the directing or super- 
intending of the working of the boiler, and that the statute did 
not apply to mere laborers, who had no responsibility or authority 
in the matter. 

St. 1899, c. 368, does not, in my judgment, require a modifica- 
tion of the conclusions stated in my former opinion. It provides 
in § 4 that "Licenses shall be granted according to the compe- 
tency of the applicant, and shall be distributed in the following 
classes : . . . Firemen's licenses : First, to operate any boiler or 
boilers. Second, to have charge of and operate low-pressure heat- 
ing boilers where the pressure carried is less than twenty-five 
pounds to the square inch." . . . Section 5 provides that "The 
words ' have charge,' in this act, shall be construed to designate 
the person under whose supervision a boiler or engine is operated. 



56 ATTORNEY-GENERAL'S REPORT. [Jan. 

The * person operating,' shall be understood to mean any and 
all persons actually engaged in generating steam in any power 
boiler." 

Whether, as I understand is claimed, the intention of those pro- 
curing the passage of this act was to extend the provision of ex- 
isting legislation, requiring persons operating steam boilers to be 
licensed therefor, to mere laborers, it is clear that the language 
employed fails to accomplish any such intention, even granting 
that it would be constitutional to require a mere laborer to be 
licensed. It is, to say the least, doubtful whether such a law 
would be within the provisions of the Constitution. Commonwealth 
V. Perry^ 155 Mass. 117, 121. In the broader sense of the words 
used in the statute, every person having to do with any labor con- 
nected with the operation of steam boilers, such as coal bolsters, 
shovellers, and men employed to bring coal inVheelbarrows, might 
be said to be engaged in the business of " generating steam " in a 
power boiler. 

Such a construction would obviously be absurd. I cannot be- 
lieve that it was the intention of the Legislature to require that 
every laborer who has a mere mechanical duty to perform, in rela- 
tion to the work of generating steam in a boiler, must be licensed. 
Licenses are granted to persons having special qualifications for 
the work for which the license is issued, and a construction which 
requires the issuing of a license to a person whose work requires 
no special skill and involves no danger to the public, is not to 
be favored, especially in a penal statute which is to be strictly 
construed. 

I am still of the opinion, notwithstanding the statute of this 
year, that licenses are not required for mere laborers whose duties 
require no skill and involve no responsibility. 
Very truly yours, 

HosEA. M. Knowlton, Attorney- General. 



Insurance — Foreign Company — Addition of Marine to Fire Busi- 
ness — Certificate of Admission — Insurance Commissioner. 

A foreign insurance company, authorized by its charter to do both fire and 
marine business, was admitted to do business in this Commonwealth 
in 1874, but it could then do only fire business here, as its capital was 
only 8200,000. It has since increased its capital to S300,000, and it may 
now do both fire and marine business in this Commonwealth. 

No duty devolves upon the Insurance Commissioner of granting permission 
to it now to do marine business, as there never has been any statute 
that authorized the Insurance Commissioner to state in the certificate 



1900.] PUBLIC DOCUMENT — No. 12. 57 

of admission which he gave to a foreign company any one kind of 
business it might do. So, after a company is once admitted, it may 
do any business here that its charter and the laws of tlie Common- 
wealth permit. 

July 6, 1899. 

Hon. Fkederick L. Cutting, Insurance CommisHoner. 

Dear Sir: — Your letter of June 9 requests the opinion of the 
Attorney-General upon the question whether the Security Insurance 
Company of New Haven, Conn., is authorized to do both lire and 
marine insurance business in this Commonwealth. 

The charter of the company authorizes it to do both classes of 
business. It was admitted to this Commonwealth in 1874, but it 
could then do only fire insurance business, as its capital stock was 
only $200,000. It has now increased its capital stock to $300,000, 
and claims the right to do marine insurance business, in addition 
to fire insurance business. 

St. 1872, c. 375, was in force when the company was admitted. 
Section 16 provided : " No insurance corporation or association of 
any other state or country shall be hereafter admitted to do busi- 
ness in this state, unless it has at least the amount of unimpaired 
capital stock or funds required of like corporations or associations 
hereafter organized in this state, located in the city of Boston." 
Section 2 provided : *' The capital stock of a joint stock company " 
(a domestic joint stock company) '* insuring against loss or dam- 
age by fire, or by fire and lightning only, shall not be less than 
two hundred thousand dollars if the company is located in Boston. 
... If insuring marine or inland risks, either alone or in con- 
junction with fire risks, its capital stock shall not be less than three 
hundred thousand dollars if the company is located in Boston." 

St. 1879, c. 130, provided, in § 1, that whenever a foreign in- 
surance company authorized to transact more than one kind of 
business applied for authority to transact business in this Com- 
monwealth, it should elect one kind of business which it desired to 
transact in this Commonwealth, and, if admitted, it should be re- 
stricted to that kind of business. Section 2 provided that any 
company then doing business should elect before the first day of 
the next July the one class or kind of business it would do in this 
Commonwealth thereafter. But § 3 specially exempted compa- 
nies transacting the business of marine insurance in connection 
with fire insurance. That statute, therefore, never applied to the 
Security Insurance Company. 

St. 1879, c. 130, was inserted as § 201 of the codification of the 
insurance laws in Pub. Sts., c 119. Section 196 of that chapter 
provided: "No foreign insurance company shall be admitted to 
do business in this Commonwealth unless it has at least the amount 



58 ATTORNEY-GENERAL'S REPORT. [Jan. 

of unimpaired capital stock or funds required of like companies 
hereafter organized in this Commonwealth, located in the city of 
Boston." And § 29 allowed domestic stock companies located in 
Boston, having a capital of $300,000, to do fire and marine insur- 
ance business. When the insurance laws were codified, in St. 1887, 
c. 214, it was provided, in § 29, that domestic companies could 
be formed to do fire or marine business but not to do both. It was 
also provided by § 80 that " No foreign insurance company here- 
after admitted to do business in this Commonwealth shall be 
authorized to transact more than one class or kind of insurance 
therein." That section has since remained unchanged in the stat- 
utes of the Commonwealth. See St. 1889, c. 356, § 1 ; St. 1891, 
c. 195, § 1 ; St. 1894, c. 133, § 3 ; St. 1894, c. 522, § 80. It is 
plain, however, that this provision never applied to a company 
that was already admitted. 

St. 1887, c. 214, prohibited the formation of domestic corpora- 
tions to do both marine and fire insurance business, and this pro- 
vision has been continued in St. 1894, c. 522, § 29. The same 
statutes provided that no foreign insurance company should be ad- 
mitted and authorized to do business until it had satisfied the In- 
surance Commissioner that it had a paid up and unimpaired capital 
of an amount not less than is required by similar companies formed 
under the provisions of our laws. St. 1887, c. 214, § 78 ; St. 
1894, c. 522, § 78. And by St. 1894, c. 522, § 31, domestic com- 
panies formed to do a marine insurance business must have a cap- 
ital stock of $300,000. 

It is clear, however, that none of the statutes enacted since the 
admission of the Security Insurance Company of New Haven 
apply to it. The statutes all refer to companies "hereafter ad- 
mitted," both as to the amount of capital required and the kind 
of business they may do. The Security Insurance Company has 
as much capital now as it would have been required to have in order 
to do marine insurance business in this Commonwealth when it was 
admitted, and as much as it would have been required to have if it 
had been admitted at any time previous to the enactment of St. 
1887, c. 214, § 80. It has as much capital as a domestic marine 
company formed now would be required to have, although no 
domestic company could now be formed to do marine insurance 
business and fire insurance business too. I am of opinion that 
there is nothing in the statutes which prohibits it from doing 
marine insurance business. 

Your letter further states that the company " asks to be per- 
mitted to do marine business here." As I am of the opinion that 
it is authorized to do marine business in this Commonwealth, no 



1900.] PUBLIC DOCUMENT — No. 12. 59 

duty of granting permission therefor devolves upon you. At the 
time the company was admitted there was no statute authorizing 
any form of certificate to be given to it by the Insurance Commis- 
sioner. St. 1887, c. 214, § 78, cl. 5, provided that the company 
should obtain the Insurance Commissioner's certificate that it had 
'' complied with the laws of the Commonwealth and is authorized 
to make contracts of insurance." The same provision is in St. 
1894, c. 522, § 78, cl. 5, but those sections apply only to com- 
panies admitted after they were enacted. 

This company is already admitted and is entitled to do such 
business as it is authorized to do by law, regardless of whether the 
Insurance Commissioner permits it or not. 1 Op. Atty.-Gen., 47. 
Very truly yours, 

HosEA M. Knowlton, Attorney- General. 



Corporation — Amount oj Capital of Manufacturing Corporation 
formed under General Laws. 

St. 1899, c. 199, repeals so much of Pub. Sts., c. 106, § 7, as imposed a 
maximum limit of one million dollars upon the capital of a manufactur- 
ing corporation formed under general laws. 

^ July 7, 1899. 

Hon. Charles Endicott, Commissioner of Corporations. 

Dear Sir: — Your letter of June 6 requires my opinion upon 
the question whether, in view of St. 1899, c. 199, you would be 
justified in approving a capital of a manufacturing corporation in 
excess of one million dollars. 

Pub. Sts.,c. 106, § 7, provides that corporations may be formed 
for the purpose of carrying on any manufacturing business (with 
certain exceptions) " with a capital of not less than five thousand 
nor more than one million dollars." 

St. 1899, c. 199, provides in § 1 that *' For the purpose of carry- 
ing on any mechanical or manufacturing business, . . . three or 
more persons may associate themselves together with the inten- 
tion of forming a corporation with a capital of not less than five 
thousand dollars. Such corporation shall be subject to all laws 
now or hereafter in force relating to such corporations." The 
second section of the same chapter authorizes any such corporation 
to increase its capital to such amount as may be determined by the 
stockholders. 

It was the obvious intention of the statute of this year to repeal 
the maximum limitation of one million dollars. The statute, it is 
true, does not in terms repeal any of the provisions of the Public 
Statutes, but, on the contrary, makes corporations formed under 



60 ATTORNEY-GENERAL'S REPORT. [Jan. 

it subject to all existing provisions ; which in terms would include 
the limitation of one million dollars. It may be suggested, there- 
fore, that by implication the limitation is still in force. 

If, however, such a construction were to prevail, § 1 of the act 
of this year, above quoted, would be entirely useless and superflu- 
ous, being a re-enactment, without change, of an existing statute. 
Furthermore, inasmuch as § 2 authorizes an indefinite increase of 
capital, it would follow that there is a limitation of the amount 
of original capital, but with the right forthwith to increase to 
an indefinite amount. This cannot have been the intent of the 
Legislature. 

In my judgment, the statute of this year is to be construed as 
repealing so much of the previous statute as imposed a maximum 
limit upon the amount of capital of manufacturing corporations 
formed under general laws. 

Very truly yours, 

HosEA M. Knowlton, Attoryiey- General. 



Superintendent of Schools — Tenure of Office. 

The term of office of a superintendent of schools does not expire at the 
end of the year for which he was appointed, when the school commit- 
tee fail to appoint a successor ; and he is entitled to hold the office 
until his successor is appointed. 

July 8, 1899. 

C. B. TiLLiNGHAST, Esq., Clerk, State Board of Education. 

Dear Sir: — Your letter of March 10 requests the opinion of 
the Attorney-General upon the following question: "Section 43, 
chapter 44 of the Public Statutes provides for the election of a 
superintendent of schools by a majority vote of the school com- 
mittee. In a case where a superintendent has been elected for a 
year and his term of office has expired, the school committee, by 
a tie vote, fails to make any election. Does the term of the super- 
intendent end with the year for which he was originally chosen, or 
can it be construed to continue him in office until a successor is 
chosen ? " 

Pub. Sts., c. 44, § 43, provides that " A city by ordinance, and 
a town by vote, may require the school committee annually to 
appoint a superintendent, who, under the direction and control 
of said committee, shall have the care and supervision of the pub- 
lic schools." 

I assume that there has been a vote of the town in question 
requiring the school committee to appoint a superintendent, which 
has not been rescinded and was in force at the time of the tie vote 
in question. 



1900.] PUBLIC DOCUMENT — No. 12. 61 

The members of the school committee are public officers. 
McKenna v. Kimball^ 145 Mass. 555, 556. In this case Mr. 
Justice Wm. Allen, in delivering the opinion, said : " The school 
committee is a board of public officers whose duties are prescribed 
by statute, and in the execution of its duties the members do 
not act as agents of the town, but as public officers in the 
performance of public duties." For the reasons there stated, 
it is not difficult to determine that a superintendent of schools 
chosen by the school committee under the direction of the town 
is also a public officer, and not merely the agent or employee of 
the school committee. He has important public duties to perform, 
under the direction and control of the school committee, but in the 
performance of those duties he must necessarily be left largely to 
his own discretion. 

The superintendent being a public officer, his tenure of office in 
case of the failure of the school committee to elect his successor 
depends upon general principles of law applicable to public officers. 
It has long since been settled in this Commonwealth that a public 
officer is entitled to hold office until his successor is elected. " The 
better opinion is that town officers annually chosen hold their 
offices until others are chosen and qualified in their place." Shaw, 
C. J., in Overseers of the Poor v. Sears, 22 Pick. 122, 130. " To 
guard against lapses, sometimes unavoidable, the provision is almost 
always made in terms that the officer shall hold until his successor 
is elected and qualified. But even without such a provision, the 
American courts have not adopted the strict rule of the English 
corporations which disables the mayor or chief officer from holding 
beyond the charter or election day, but rather the analogy of the 
other corporate officers who hold over until their successors are 
elected, unless the legislative intent to the contrary is manifested.'' 
Dillon, Municipal Corporations, § 219. 

It has been long expressly provided in our statutes that town 
officers should serve until others were chosen and qualified in 
their stead. Rev. Sts., c. 15, § 33 ; Gen. Sts., c. 18, § 31 ; Pub. 
Sts., c. 27, § 78. The school committee are not included in terms 
in the sections referred to, each of which enumerates the officers 
required to be chosen at the annual town meeting. The omission 
to designate the school committee among those so to be chosen is 
undoubtedly due to the fact that special provisions govern the elec- 
tion of a school committee. Pub. Sts., c. 44, § 21. There is no 
reason for supposing that the tenure of office of the school commit- 
tee was intended to be different from that of other town officers. 
The statute in question devolves upon the school committee the 
duty of electing a superintendent of schools when ordered to do 



62 ATTORNEY-GENERAL'S REPORT. [Jan. 

so by the town. It is the intention of the town, as expressed by 
its vote, that there shall be a superintendent of schools ; and it 
would be, in my judgment, unreasonable to adopt a construction 
of the statute which would enable the school committee, by a failure 
to elect at the end of the year, from whatever cause, to defeat the 
will of the town. 

Some expressions in the opinion of Kimball v. Salem, 111 Mass. 
87, may seem to be at variance with the views above stated, par- 
ticularly the following : *' The duty or authority of the school com- 
mittee, under the vote of a town or ordinance of a city, is one 
which is to be performed or exercised by them annually. The 
statute manifestly contemplates an appointment for the year ; and 
not from time to time, at the discretion of either branch of the 
municipal government." The question in that case, however, was 
whether, by repealing the ordinance providing for the election of 
a superintendent, that officer could be deprived of the right to his 
compensation for the year for which he was elected ; and the court 
held that, having been chosen for a year, he could not be deprived 
of his office by a vote repealing the ordinance. The language quoted 
must be taken to refer to that question only, and is not authority 
in favor of the proposition that, if the school committee fail to elect 
a successor, the office thereby becomes vacant. 

The recent case of Attorney- General v. John T. Clark, in the 
Supreme Judicial Court for the county of Worcester, although a 
nisi prius decision, is authority for the views I have stated. It 
was an information in the nature of a quo ivarranto by the At- 
torney-General V. John T. Clark, superintendent of schools in 
Southbridge. He was elected superintendent of schools by the 
committee under a vote of the town, for a year beginning Sept. 
1, 1896. In 1897 no superintendent was elected, but Clark assumed 
to exercise the duties of superintendent, and refused to give up 
the possession of the books and papers in his control. Holmes, J., 
in dismissing the information, said : " There is no time fixed in Pub. 
Sts , c. 44, § 43, for the election of a successor of the respondent, 
and I am of opinion that he holds over, in accordance with what 
Chief Justice Shaw pronounced the better rule in 22 Pick. 130." 

For the reasons above stated, and especially in view of the 
decision last quoted, I am constrained to advise the Board that 
the term of office of a superintendent of schools does not expire 
by reason of the failure of a school committee to elect a successor, 
but that he is entitled to hold his office until the school committee 
discharge the duty devolving upon them by the statute. 
Very truly yours, 

HosEA M. Knowlton, Attorney- General. 



1900.] PUBLIC DOCUMENT — No. 12. 63 



Eminent Domain — Appropriation for Damages — Constitutional 

Law. 

The Board of Harbor and Land Commissioners is not precluded from tak- 
ing areas in South Bay in the city of Boston, under authority of St. 
1899, c 469, because no specific sum is appropriated by tliat act to pay 
damages for such takings. The act does appropriate so much money 
as may be necessary to pay the damages which may be assessed under 

it, and it is therefore constitutional. 

July 8, 1899. 

Hon. Woodward Emery, Chairman, Board of Harbor and Land Com- 
missioners. 

Dear Sir: — Your letter of July 7, requires my opinion upon 
the following question : " Referring to chapter 469, Acts of 1899, 
which became a law July 3, I have the honor to inquire whether 
this Board is precluded from going ahead and taking areas in 
South Bay in the city of Boston, by reason that no specific appro- 
priation appears to have been made for the purpose of damages 
for such takings, or for any other reason." 

The statute above referred to amends vSt. 1898, c. 278, § 4, so 
as to read as follows: " The board of harbor and land commis- 
sioners, subject to the approval of the governor and council, is 
hereby authorized to purchase or otherwise take in fee from time 
to time, in the name and behalf of the Commonwealth, the whole 
or any portions of the area lying between the harbor lines herein- 
before established, or any rights therein. All damages sustained 
by reason of such taking as aforesaid shall be paid out of the 
treasury of the Commonwealth, and the governor is hereby author- 
ized to draw his warrant therefor. Such damages shall be agreed 
upon by said board and the person or corporation injured ; and if 
the parties cannot agree a jury in the superior court of the county 
in which the property taken is situated may be had to determine 
the same, in the same manner as a jury is had and damages are 
determined in the case of persons dissatisfied with the estimate of 
damages sustained by the laying out of ways in the city of Boston : 
provided., however^ that no suit for such damages shall be brought 
after the expiration of one year from the date of the recording of 
the taking as herein required. Within sixty days after any land, 
flats or rights therein are acquired or taken under this act, the 
board shall file and cause to be recorded in the registry of deeds 
for the county in which the property is situated, a description 
thereof sufficiently accurate for identifying the same, with a state- 
ment that tlie land, flats or rights therein are taken under the pro- 
visions of this act, in the name and behalf of the Commonwealth. 
Said description and statement shall be signed by said board or 



64 ATTORNEY-GENERAL'S REPORT. [Jan. 

a majority thereof, and certified as approved by the governor and 
council." 

In the case of Talbot v. Hudson, 16 Gray, 417, the Supreme 
Court was called upon to determine the question of the constitution- 
ality of St. 1860, c. 211. That act authorized the taking down 
and removal of a portion of a dam across the Concord River, and 
provided that any person injured in his property by the work au- 
thorized might have his damages estimated by the county commis- 
sioners in the same manner, with certain immaterial exceptions, 
as damages caused by the laying out of highways were estimated ; 
and that either the person injured or the Commonwealth, if dis- 
satisfied with the award of the county commissioners, might have 
the matter determined by a jury as in the case of highways. 

Section 3 of that act reads as follows : '' Any damages that may 
be recovered on such application, together with legal costs, shall 
be paid out of the treasury of the Commonwealth ; and the governor 
is hereby authorized to draw his warrant therefor." 

The validity of this statute was called in question in the case 
above referred to on several grounds among others, it was con- 
tended that the statute was unconstitutional, because it contained 
no reasonable, certain and adequate provision for compensation 
to those whose property might be taken and appropriated in carry 
ing out the purposes of the act. 

The court, in an opinion by Bigelow, C. J., said : '' It seems to 
us that there is an obvious and decisive answer to this objection. 
By the third section of the act, it is provided that the damages 
which may be recovered on due proceedings had by the parties 
injured shall be paid out of the treasury of the Commonwealth, 
and the Governor is authorized to draw his warrant therefor. This 
is clearly an appropriation of so much money as may be necessary 
to pay the damages which may be assessed under the act. The 
provision could not be more explicit or definite as to the amount 
appropriated. Until the damages are ascertained and adjudicated, 
the sum which will be required to pay them is necessarily uncertain. 
There is no provision of law, which makes it requisite to the va- 
lidity of an appropriation from the treasury of the Commonwealth 
that a specific sum should be named and set apart as a fund to 
meet a particular exigency. It is sufficient if by an act or resolve 
passed during the same or the preceding political year the payment 
is authorized. St. 1858, c. 1, §§ 1, 2 ; Gen. Sts., c. 15, §§ 30,31. 
That such an appropriation affords a remedy sufficiently adequate 
and certain is too clear to admit of doubt. It is a pledge of the 
faith and credit of the Commonwealth, made in the most solemn and 



1900.] PUBLIC DOCUMENT — No. 12. 65 

authentic manner, for the payment of the damages as soon as they 
are ascertained and liquidated by due process of law. Unless we 
can say that such a provision affords no reasonable guaranty that 
the persons injured will receive compensation, we cannot adjudge 
the statute to be unconstitutional. We certainly cannot assume 
that the Commonwealth will not fulfil its obligations. The pre- 
sumption is directly the other way. Indeed the plaintiffs do not 
aver in their bill that the damages which may be awarded to them 
under the act will not be duly paid. How then can it be said that 
no suitable and adequate provision is made in the act, by which 
the plaintiffs can receive the compensation to which they may be 
entitled?" 

The language of St. 1899, c. 469, so far as it relates to the 
payment of damages, is precisely similar to that contained in St. 
1860, c. 211, § 3, which section was construed in the case above 
referred to as amounting to an appropriation of so much money 
as might be necessary to pay the damages assessed under the act. 
That case has not been overruled, but, on the contrary, the lan- 
guage above quoted was referred to with approval in the case 
of Connecticut River Railroad Go. v. Comity Commissioners^ 127 
Mass. 50, 55. Since the case of Talbot v. Hudson was decided, 
no statutes have been passed which are now operative requiring 
that an appropriation from the treasury of the Commonwealth 
should be of a specific sum or in any other way affecting this 
question. No other objection to the validity of the statute re- 
ferred to in your letter appears. 

I am, therefore, of opinion that St. 1899, c. 469, is constitu- 
tional, and that, so far as the question of the validity of this 
statute is concerned, your Board is not precluded from exercising 
the powers given to it thereby. 
Yours very truly, 

HosEA M. Knowlton, Attorney-General . 



Board of Education — Westford Academy — Approval as High 
School — Constitutional Law. 

Westford Academy is a private school, and is "not under the order and 
superintendence of the authorities of the town" of Westford, and the 
State Board of Education may refuse to approve it, either for the pur- 
pose of authorizing the town of Westford to pay the tuition of children 
living therein and attending that academy, under St. 1895, c. 94, or for 
the purpose of securing to other towns reimbursement by the Com- 
monwealth of money expended for the tuition of children in that 
academy, under the provisions of St. 1898, c. 496, § 3. 



66 ATTORNEY-GENERAL'S REPORT. [Jan. 

Strictly speaking the duty of the Board is that of approval of an academy 
in respect to the grade of its work ; but as towns may not pay the tui- 
tion of pupils attending Westford Academy, the Board, in the exercise 
of its discretion, may withold its approval of it for that reason. 

July 12, 1899. 

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

Dear Sir: — Your letter of June 10 encloses a copy of an in- 
denture between the town of Westford and the trustees of the 
Westford Academy, and requests the opinion of the Attorney- 
General upon the following questions : — 

First. — " Is it legal for the State Board of Education, either 
under the provisions of St. 1895, c. 94, or under the provisions of 
that act as supplemented by the aforesaid indenture, to approve 
AVestford Academy for the purposes of said act, should it desire to 

do so ?" 

Second. — "Is it legal for the State Board of Education, either 
under the provisions of St. 1898, c. 496, § 3, or under the pro- 
visions of that section as supplemented by the aforesaid indenture, 
to approve Westford Academy for the purpose of insuring to 
towns the reimbursement of money expended for tuition in that 
academy?" 

The statute referred to in your questions (St. 1895, c. 94) pro- 
vides, in § 1, that " Any town in which a high school is not main- 
tained, but in which an academy of equal or higher grade is 
maintained, may grant and vote money to pay the tuition of chil- 
dren residing in such town and attending such academy ; provided, 
such academy is approved for that purpose by the state board of 
education." 

On March 18, 1896, in response to an order of the Senate, I 
advised that honorable body that in my opinion the statute in ques- 
tion, in so far as it purported to authorize the payment of money 
by a town to an incorporated academy not under the control of the 
town, is in violation of Art. 18 of the Amendments to the Constitu- 
tion, which provides in terms that " moneys raised by taxation in 
towns and cities for the support of public schools . . . shall be 
expended in no other schools than those which are con- 
ducted . . . under the order and superintendence of the authori- 
ties of the town or city in which the money is to be expended." 
1 Op. Atty.-Gen. 319. 

If I am correct in this opinion, it is necessary to ascertain, 
before answering your questions, whether Westford Academy is 
under the order and superintendence of the authorities of the town 
of Westford. If not, the town may not lawfully pay the tuition 
of its pupils. 

All the authority and superintendence which the authorities of the 



1900.] PUBLIC DOCUMENT — No. 12. 67 

town of Westford may exercise over Westford Academy is derived 
from the provisions of the indenture submitted with your letter. 
The only provisions affecting the question are the following : — 

" And it is further agreed that the said trustees [of the academy] 
shall provide a grade of education equal to that provided by high 
schools. 

"And it is further agreed that, in order to determine whether 
or not the grade of education provided by the said trustees is, at 
any time, up to the said required standard, there shall be a Board 
consisting of three members, hereinafter called the Supervising 
Board ; that one of these three members shall be appointed by and 
from the school committee of the said town of Westford, one by 
and from the said trustees, and the third by the two members 
appointed in the foregoing manner, and who shall not be a member 
of either said boards ; that the term of office of each member shall 
expire on the last day of June of each year ; that, in case of the 
death or resignation of any member, a successor shall be appointed 
by the same parties that appointed the said members so deceased 
or resigning, and that a new supervising board shall be appointed 
at the last of June each year. 

" And it is further agreed that the superintendent of schools of 
said town of Westford shall superintend the methods of education 
employed in said academy, and the results obtained and all matters 
appertaining in any way to his connection with the academy shall 
be reported to the said Supervising Board at his desire or their 
call, and shall also be included in his report to the town each year. 
In case of controversy, the Supervising Board to decide and ad- 
judge and fully settle all points and differences." 

It is obvious that the above provision for a Supervising Board 
consisting of three members, only one of whom is selected by the 
school committee of the town, does not give to the authorities of 
the town the order and superintendence of the school. The pro- 
vision that the town superintendent of schools shall superintend 
"the methods of education employed in said academy" also fails, 
in my opinion, to put the institution under the order and super- 
intendence of the town authorities within the meaning of that 
expression as used in the Amendment to the Constitution. The 
authority of the superintendent is limited to methods of education, 
and he may not exercise any other control over the institution, its 
management or discipline. The principal purpose of the Amend- 
ment was doubtless to prevent the use of moneys raised or appro- 
priated for the support of the public schools for the purpose of 
sustaining sectarian schools. The academy at Westford may or 
may not be sectarian in its character. There is nothing, however, 
in the agreement between the trustees and the town which pre- 



68 ATTORNEY-GENERAL'S REPORT. [JaD. 

vents it from being so, or in any way limits the character of 
religious instruction or services which may prevail in the academy. 
The arrangement between the town and the academy differs es- 
sentially from that relating to the Powers Institute in the town 
of Bernardston, which, in an opinion to you dated March 8, 1897 
(1 Op. Atty.-Gen. 427), I advised you make the academy to all 
intents and purposes a school under the control of the authorities of 
the town. In that case the trustees of the academy are elected by the 
inhabitants of the town and must be citizens of the town, and they 
are required to make an annual report to the town. Westford 
Academy, however, is wholly independent of the town, excepting 
so far as the town superintendent may exercise supervision over 
the methods of instruction. As this does not place the academy 
under the order and superintendence of the authorities of the 
town, the case, in my opinion, comes within the prohibition of 
the Amendment to the Constitution. 

Strictly speaking, the duty of the Board of Education is that of 
approval of an academy in respect to the grade of its work. The 
Board, in exercising the duties entrusted to it under St. 1895, 
c. 94, § 1, is not concerned with the question whether the town 
may or may not lawfully pay the tuition of pupils in any given 
case. But, as the towns may not pay the tuition of pupils attend- 
ing the academy, I see no reason why, in the exercise of your 
discretion you should not for that reason withhold your approval 
of the institution. 

The answer to your second question is governed by the fore- 
going considerations. Westford Academy, being a private school, 
not "under the order and superintendence of the authorities of 
the town," is therefore not a high school, and the State Board of 
Education has no authority to approve it as a high school. It 
follows that the State should not reimburse any town for the tui- 
tion of children sent to Westford Academy. 
Very truly yours, 

HosEA M. Knowlton, Attorney- General. 



Pauper — Settlement. 

A pauper could not derive a settlement from her mother, while she had one 
derived from her father, so that she could take advantage of it when 
the one derived from her father was defeated by St. 1898, c. 425, § 2. 

July 26, 1899. 
Stephen C. Wrightington, Esq., Superinteridejit, State Adult Poor. 

Dear Sir : — Upon the facts stated in your letter of July 8, the 
pauper named therein has no settlement in Lawrence or in Lynn ; 



1900.] PUBLIC DOCUMENT — No. 12. 69 

and unless, upon other facts, she has gained a settlement elsewhere, 
she is undoubtedly a State charge. 

Her father acquired a settlement in Lawrence prior to 1859, and 
she took a settlement from him by derivation. Her settlement, 
however, was defeated by St. 1898, c. 425, § 2, providing that 
'' All settlements not fully acquired subsequent to the first day of 
May eighteen hundred and sixty are hereby defeated and declared 
to be lost." 

Her father did not lose his settlement in Massachusetts by re- 
moving to Michigan. Townsend v. Billerica, 10 Mass. 411, 413. 
Canton v. Bentley, 11 Mass. 441. St. 1898, c. 425, § 2, provides 
that " All persons absent from the Commonwealth of Massachu- 
setts for ten years in succession shall lose their settlement." This 
statute, however, is new, and is not retroactive. 

Inasmuch as her father did not lose his settlement in Lawrence, 
she could not derive a settlement from her mother in Lynn. Chil- 
dren can only follow the settlement of their mother when the 
father has no settlement within the Commonwealth. Pub. Sts., 
c. 83, § 1, cl. 2. 

She could not acquire a settlement in Lynn by her residence 
there with her mother for fifteen years, because she was and is 
non compos mentis. 

Upon the facts as stated in your letter, therefore, she is an 
unsettled person, and a charge upon the Commonwealth. 
Yours very truly, 

HosEA M. Knowlton, Attorney- General. 



Superintendent of Schools — Union of Towns to employ — Article 
in Town Warrant. 

An article in the warrant of a town " to see if the town will vote to form 
a union with" another town " for the purpose of employing a super- 
intendent of schools," is sufficient to authorize the voters of that town 
to vote for such union, although St. 1898, c. 466, is not referred to in 
the article, especially as there is no other statute under which a union 
of towns for that purpose could be affected. 

Sept. 5, 1899. 

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

Dear Sir : — Your letter of September 2 states that the towns 
of Merrimac and Billerica have formed a district for the employ- 
ment of a school superintendent under the provisions of St. 1898, 
c. 466 ; and that the action of the town of Billerica was based 
upon an article in the warrant for the town meeting, which was 
as follows : — 

'* Article 2. To see if the town will vote to unite to form a 



70 ATTOENEY-GENERAL'S REPORT. [Jan. 

union with the town of Merrimac for the purpose of employing 
a superintendent of schools, or do anything in relation to the 
same." 

The question submitted by your letter is whether this article is 
sufl3cient, in view of the fact that it does not refer to the statute 
authorizing such a union. 

There is no form of union for the purpose of employing a super- 
intendent of schools possible to towns within this Commonwealth 
excepting under the provisions of the statute referred to. It is to 
be presumed, therefore, that the union referred to in the warrant 
was under that statute, and that the voters so understood, and 
that they voted with that understanding. 

The Supreme Judicial Court long since determined, as a wise 
rule of construction, that the proceedings of towns and town offi- 
cers were not to be judged with strictness, but rather to be con- 
strued with liberality. As was said by Shaw, C. J., in Strong, 
Ptr., 20 Pick. 484, 492: "From the men who usually are, and 
necessarily must be, employed to make them, great formality or 
nicety cannot be expected and should not be required." See also 
Commonwealth v. Smith, 132 Mass. 289. 

In the present case there is no manner of doubt as to what was 
intended by the warrant and as to the intention of the voters who 
acted upon it. A person learned in the law would undoubtedly 
have referred specifically to the statute authorizing the proceed- 
ings. I do not deem it necessary, however, and I have no diffi- 
culty in advising you that the vote of the town upon the warrant 
quoted sufficiently authorizes the formation of the district. 
Yours very truly, 

HosEA M. Knowlton, Attorney -General. 



Pauper — Married Woman — Settlement — Derivative Settlement of 

Son. 

A woman, whose husband died in January, 1874, without ever having 
gained a settlement in Massachusetts, lived in Boston from that time 
until her death, in 1889. She therefore gained a settlement in her own 
right, in January, 1879, which was not affected by the retroactive pro- 
visions of St. 1879, c. 242. Her son became of age before she gained 
a settlement, and therefore did not derive one from her, and, since he 
has never gained one in his own right, he is an unsettled person. 

Sept. 20, 1899. 
Stephen C. Wrightington, Esq., Superintendent^ State Adult Poor. 

Dear Sir: — Your letter of September 1 requires the opinion 
of the Attorney-General upon facts stated in the letter as to the 
settlement of a certain pauper. 



1900.] PUBLIC DOCUMENT — No. 12. 71 

Your letter states that he was born in Boston, Dec. 23, 1855, 
and consequently became of age Dec. 23, 1876. He never acquired 
a settlement in his own right. His father was born in New Hamp- 
shire, and came to Boston in 1852, where he died, Jan. 28, 1874, 
never having acquired a settlement in Massachusetts. His mother 
came to Boston with her husband in 1852, and resided in that city 
continuously as a married woman until her husband's death, in 
January, 1874, and subsequently as a widow, in the same place, 
until her death, in April, 1889. 

Upon the facts stated, the mother of the pauper was undoubtedly 
settled in Boston. If this settlement was acquired prior to 1876, 
when the pauper became of age, he would take the same settlement 
by derivation from her. If, however, she did not acquire her settle- 
ment in Boston until after 1876, he would derive no right there- 
from. It is well settled that only minors can gain a derivative 
settlement from their parents. SpringjieldY. Wilbraham, 4 Mass. 
493. The answer to your inquiry depends, therefore, upon the 
determination of the question when the mother acquired her settle- 
ment in Boston. 

St. 1874, c. 274, § 2, provides that '' Any woman of the age of 
twenty-one years who resides in any place within this state for five 
years together without receiving relief as a pauper shall thereby 
gain a settlement in such place." By § 3 of the same act it is 
provided that "any unsettled person shall be deemed to have 
gained a settlement upon the completion of the residence and 
taxation herein required, though the whole or a part of the same 
accrues before the passage of this act." It has been held that 
this statute, though general in its terms, only applies to unmarried 
women. Somerville v. Boston, 120 Mass. 574. Under this statute, 
therefore, the mother of the pauper would not have begun to acquire 
a settlement until the death of her husband, in 1874 ; but, having 
resided as a widow in Boston from that time until her death, in 
1889, she would have acquired, in January, 1879, under its pro- 
visions, a settlement in Boston, having then completed her five 
years period of residence therein as an unmarried woman. 

But, in consequence, doubtless, of the decision in Somerville v. 
Boston, above referred to, limiting the operation of the statute of 
1874 to unmarried women, a statute was enacted in 1879 (St. 1879, 
c. 242), providing that the provisions of St. 1878, c. 190, § 1, 
cl. 6 (which was a re-enactment of St. 1874, c. 274, § 2, above 
quoted) should extend to married women, and by § 2 making its 
provisions retroactive as to unsettled women. The word " un- 
settled" in this section means unsettled at the time when the act 
took effect. Worcester v. Great Barrington, 140 Mass. 243. 
Middleborough v. Flympton, 140 Mass. 325. 



72 ATTORNEY-GENERAL'S REPORT. [Jan. 

If, therefore, the mother of the pauper was an unsettled woman 
when the statute of 1879 took effect, she would, under that statute, 
be deemed to have acquired a settlement in Boston when she had 
lived with her husband in Boston for five years, or in 1857. At 
that time her son, the pauper in question, was a minor, and would, 
consequently, have a settlement in Boston by derivation from his 
mother. 

But the mother was not an unsettled woman when the statute 
of 1879 took effect. It was enacted April 22, 1879, and became 
law May 22 of the same year. The five years' residence as a 
widow, which settled her in Boston under the provisions of the 
statute of 1874, expired in January, 1879. She therefore gained 
a settlement in January, 1879, which was not affected by the 
retroactive provisions of the statute of that year. It follows that 
when the pauper, her son, became of age, in 1876, his mother 
cannot be said to have been settled in Massachusetts, and he 
derives no settlement from her. 

It has been suggested that, inasmuch as the statute of 1879 is 
in amendment of the provisions of the statute of 1878, the later 
statute is to be taken as incorporated into and made a part of the 
provisions of the statute' of 1878, so far as to be a part of the same 
statute ; and that, consequently, rights under the statute of 1878, 
as amended by the statute of 1879, would be acquired as of the 
date of the passage of the statute of 1878. There is nothing in 
this contention worthy of serious consideration. Section 2 of the 
statute of 1879 is not an amendment of the statute of 1878, in the 
sense that it re-enacts the section amended, merely adding new 
words to the language of the former section. It is an independent 
enactment, containing new provisions ; and those provisions can- 
not be law until they are enacted. " Generally, a statute speaks 
from the time it takes effect." Morton, C. J., in Worcester w. 
Great Barrington, uU supra ^ p. 245. A statute affecting settlement 
laws may be retroactive in its provisions, but it cannot be taken to 
be retroactive as to the time when it takes effect. 
Yours very truly, 

Hose A M. Knowlton, Attorney- General. 



1900.] PUBLIC DOCUMENT — No. 12. 73 



Telephone and Telegraph Poles — Damages for Removal from Land 
taken by Metropolitan Park Commission, 

The Commonwealth is not liable in damages to a telephone and telegraph 
company for the removal of its poles from land taken by the Metro- 
politan Park Commission, when the right of the company to maintain 
such poles is founded upon a mere license given by the person who 
owned the land before it w^as taken by the commission. 

Sept. 21, 1899. 
John Woodbury, Esq., Secretary, Metropolitan Park Commission. 

Dear Sir : — Your letter of July 7 requires the opinion of the 
Attorney-General upon the question whether the American Tele- 
phone and Telegraph Company have a valid claim against the Com- 
monwealth for the taking by the Metropolitan Park Commission of 
certain lands for the Blue Hills Reservation. 

Your letter states that, prior to the taking of the land by the 
commission, the owner had signed and delivered to the company 
an instrument purporting to give to the company the right to con- 
struct, operate and maintain poles and telephone lines over said 
land. The essential portions of the instrument in question are as 
follows : — 

" Received of the American Telephone and Telegraph Company 
of Massachusetts forty dollars, in consideration of which I hereby 
grant unto said company, its successors and assigns, the right to 
construct, operate and maintain its lines over and along the prop- 
erty which I own, or in which I have any interest, in the town of 
Braintree, county of Norfolk and State of Massachusetts, includ- 
ing the necessary poles and fixtures along the roads, streets or 
highways adjoining the property owned by me in said town, in full 
payment for such right, and in full satisfaction for the trimming 
of any trees along said lines necessary to keep the wires cleared 
at least eighteen inches, and with the right to set the necessary 
guy and brace poles, and attach to trees the necessary guy wires. 

*' Witness my hand and seal this fourth day of September, 1889, 
at Braintree Mass." 

The instrument was signed by the owner, but was not sealed. 

The Commonwealth is not liable, unless the instrument in ques- 
tion conveyed to the company rights in the land which would bind 
a grantee of the owner. Being unsealed, however, it has no more 
force than a mere license, which, it is well settled, is revoked when 
the estate concerning which the license is given is conveyed by the 
licensor. Fentiman v. Smithy 4 East. 107. Cook v. Stearns, 11 
Mass. 533. The right to do some act of a permanent nature on 
the land of another cannot be created by a license, even when in 



74 ATTORNEY-GENERAL'S REPORT. [Jan. 

writing, executed upon good consideration. It can only be created 
by a deed or conveyance operating as a grant. Such license is 
sufficient protection to the licensee while it lasts, but it may be 
revoked at any time, and after its revocation it cannot be used 
as protection for any further acts. White v. Manhattan Railvjay 
Co., 139 N. Y. 19. Mumford v. Whitney, 15 Wend. 380. 

A lease for a period of less than seven years may be given by 
a writing unsealed. The instrument in question, however, cannot 
be so regarded. It has none of the attributes of a lease. A con- 
veyance of a freehold interest in land, whether for life or in perpe- 
tuity, must be by an instrument under seal. The instrument in 
question being unsealed, gives the company rights only as against 
the signer thereof. These rights are lost by conveyance, or by 
taking under the right of eminent domain. 

It follows that the Commonwealth is not liable to the Company. 
Yours very truly, 

HosEA M. Knowlton, Attorney- General. 



Massachusetts Agricultural College — Rates of Tuition. 

The trustees of the Massachusetts Agricultural College may establish such 
rates of tuition aud remit them in such cases as they deem to be for 
the interests of the college. 

Sept. 21, 1899. 

To His Excellency Roger Wolcott, Governor. 

Dear Sir : — Your favor, enclosing a letter from the president 
of the Massachusetts Agricultural College, requires the opinion of 
the Attorney-General upon the question whether the trustees of that 
institution have the right, in any case, to remit the established fee 
for tuition of students. 

In general, trustees of colleges may fix such rates of tuition for 
students as they see fit. They may also require the payment of 
tuition from certain students, and not from others ; and they may 
even require no tuition fee whatever from any person. Unless 
restrained by special provision of their charters, or by limitations 
or conditions in their endowments, the whole matter of tuition is 
in their exclusive control. 

The Massachusetts Agricultural College does not differ in this 
respect from other like institutions. It was chartered by St. 1863, 
c. 220, which was amended by St. 1864, c. 223. Its charter differs 
from that of other colleges in the Commonwealth in making one 
of its objects the teaching of " such branches of learning as are 
related to agriculture and the mechanic arts, in order to promote 
the liberal and practical education of the industrial classes in the 



1900.] PUBLIC DOCUMENT — No. 12. 75 

several pursuits and professions of life ; " in providing for the 
filling of vacancies in the board of trustees by the Legislature ; 
in constituting the Governor of the Commonwealth, the secretary 
of the Board of Education and the secretary of the Board of 
Agriculture members of the corporation, ex officio, and in provid- 
ingthat the *' location, plan of organization, government and course 
of study prescribed for the college, shall be subject to the approval 
of the governor and council." The statute further appropriates 
for the building and maintaining of the college a portion of the 
proceeds of land scrip received by the Commonwealth from the 
United States, by virtue of the act of Congress approved by the 
President July 2, in the year 1862. Appropriations have also 
been made by the Legislature from time to time for the mainten- 
ance of the college. 

But there is no limitation upon the right of the trustees to 
regulate rates of tuition. In this respect they have the same 
powers as trustees of other institutions ; and they may establish 
such rates of tuition and remit them in such cases as they deem 
to be for the interests of the college. 
Yours very truly. 

Hose A M. Knovtlton, Attorney- Oeneral. 



Metropolitan Park Commission — Rules and Regulations for Use 
of Charles River — Poivers of Park Police. 

The Metropolitan Park Commission does not have the power to make rules 
and regulations for the use of portions of the Charles River bordered 
upon by the lands of the Charles River Reservation. 

The general powers of the metropolitan park police are defined by St. 1897, 

c. 221, §3. 

Sept. 23, 1899. 

John Woodbury, Esq., Secretary, Metropolitan Park Commission, 

Dear Sir : — Your letter of May 14 requires the opinion of the 
Attorney-General as to the power of the Metropolitan Park Com- 
mission to make rules and regulations for the use of those portions 
of the Charles River bordered upon by land of the Charles River 
Reservation. 

St. 1893, c. 407, § 4, authorizes the Board to '' make rules and 
regulations for the government and use of public reservations 
under their care, and for breaches thereof fix penalties," etc. 
St. 1894, c. 288, § 3, also authorizes the Board to '' make rules 
and regulations for the government and use of the roadways or 
boulevards under its care." By St. 1898, c. 463, § 1, the Board 
is authorized, " for the purpose of making rivers and ponds within 



76 ATTORNEY-GENERAL'S REPORT. [Jan. 

the metropolitan parks district more available for open spaces 
for recreation and exercise, to regulate the use of certain spaces 
around or near said rivers or ponds within said district."' 

The foregoing statutes, which comprise all that give authority to 
the commission to make penal regulations, clearly do not authorize 
the establishment by the Board of rules for the use of the Charles 
River where it is bordered upon by the lands of the Charles River 
Reservation. 

As incident to its ownership of the lands bordering upon the 
river, the Board has certain rights of control to a limited extent 
over the use of the waters, especially those portions above the 
dam at Watertown ; but these are rights which all riparian owners 
have, and do not confer upon the Board any more authority to 
make rules and regulations, punishable by fine or imprisonment, 
than have other riparian owners. Proprietors of Mills v. Com- 



mon 



wealth, 164 Mass. 229. 



Your letter also inquires "as to the powers generally of the 
metropolitan park police on the waters of the Charles River lying 
within the metropolitan parks district." 

By St. 1897, c. 121, § 3, it is provided that "The police ap- 
pointed or employed by said commission . . . shall have within 
the metropolitan parks district all the powers of police officers and 
constables of cities and towns of this Commonwealth except the 
power of serving and executing civil process." It does not occur 
to me how I can state the general powers of your police officers 
more explicitly than to refer you to the language above quoted. 
Yours very truly, 

HosEA M. Knowlton, Attorney- General. 



Internal Revenue Law — Registers of Probate and Insolvency — 
Congress — Treasurer of the Commonwealth. 

Registers of probate and insolvency are not required to pay for internal 
revenue stamps affixed to certificates and certified copies furnislied by 
them, nor is tlie Commonwealtli. When a stamp is required upon a 
document furnished by them, it must be paid for by the person for 
whose use it is issued. 

Congress has no authority to tax the States, and it is the duty of the 
Treasurer of the Commonwealth to refuse to reimburse officers of the 
Commonwealth for money expended by them for revenue stamps. 

Sept. 23, 1899. 
Hon. E. P. Shaw% Treasurer of the Commomuealth. 

Dear Sir : — Your letter of September 9, enclosing a communi- 
cation from the register of probate and insolvency for Middlesex 



1900.] PUBLIC DOCUMENT — No. 12. 77 

County, requires the opinion of the Attorney-General upon two 
questions : — 

First. — Should the Commonwealth pay for stamps affixed by 
registers of probate to certificates and certified copies ? 

Second. — Should registers of probate refuse to issue certificates 
and certified copies which it is their duty to furnish on demand, 
without payment for the revenue stamp required under the ruling 
of the internal revenue commissioner? 

The first question only concerns the performance of your duties 
as Treasurer. The second question is not one upon which you 
have occasion to require the opinion of the Attorney-General. 
For the convenience, however, of officers throughout the State, I 
submit my views upon both questions. 

If the Commonwealth were to be required to reimburse its offi- 
cers for money expended by them for United States revenue stamps 
affixed to instruments which they are by law required to furnish, 
it would amount to a tax by the United States upon the Common- 
wealth. This, it is well settled, is beyond the power of the federal 
government. Collector v. Day, 11 Wall. 113. United States v. 
Railroad Co., 17 Wall. 322. The Treasurer of the Commonwealth, 
therefore, cannot be called upon to pay for stamps so affixed ; and 
it is your duty to refuse reimbursement to officers of the Common- 
wealth therefor. 

The answer to your second inquiry is governed by the same 
considerations. It is undoubtedly the duty of registers of probate 
in many cases to furnish copies of the records and papers in their 
custody to persons interested therein. Indeed, certain copies are 
to be furnished by them free of charge. Pub. Sts., c. 156, § 40 ; 
c. 199, § 24. Congress may not impose any tax or penalty upon 
State officers for the performance of their official duties. Such 
officers are agencies of the government of the State, and are beyond 
the sphere of the taxing power of the nation. Moore v. Quirky 
105 Mass. 49. Carpenter v. Snelling, 97 Mass. 452. Clemens v. 
Conrad, 19 Mich. 170. 

Eegisters of probate and insolvency, therefore, may not be re- 
quired to pay for stamps affixed to certified copies furnished by 
them. In cases where a stamp is required to be affixed to a docu- 
ment furnished by a register of probate, it must be paid for by the 
person for whose use it is issued. See 1 Op. Atty.-Gen. 566. 

The United States Internal Revenue Act of 1898, § 6, does not 
specify whether the stamps to be affixed to an instrument shall be 
paid for by the one who issues it or by him for whose benefit and 
use it is issued. But the officer issuing the certificate cannot be 
compelled to affix a revenue stamp thereto, and he is not the agent 



78 ATTORNEY-GENERAL'S REPORT. [Jan. 

of the United States government to collect its taxes. He is not 
concerned in the question whether the person for whose use and 
benefit it is issued shall obey the law ; that is a matter between 
such person and the United States government. 
Yours very truly, 

Hose A M. Knowlton, Attorney-General. 



Board of Education — Registers for School Statistics — Private 
Educational Institutions. 

The State Board of Education may furnish registers for the keeping of 
school statistics to private educational institutions free of charge. 

Sept. 25, 1899. 
Frank A. Hill, Esq., Secretary, Slate Board of Education. 

Dear Sir: — By Pub. Sts., c. 41, § 13, it is made the duty of 
persons in charge of private educational institutions to " make a 
report in writing" to the State Board of Education "of such 
statistics as the board shall prescribe, relating to the number of 
pupils and instructors, courses of study, cost of tuition, and the 
general condition of the institution or school under their charge." 
Section 14 of the same chapter makes it the duty of the Board to 
" prepare blank forms of inquiry for such statistics," and to 
"send the same to every such institution or school on or before 
the tenth day of May in each year." 

Your letter of the 14th inst. states that the Board has prepared 
a new school register for the use of the public schools in the Com- 
monwealth. The expense of this register is authorized by St. 
1899, c. HI, which provides that " The board of education may 
spend annually a sura not exceeding one thousand dollars for the 
printing and distribution of such school registers, school blanks 
and forms for the returns of school committees as said board is 
required by law to furnish to the towns and cities of the Com- 
monwealth." The question submitted by your letter is, whether 
the Board may send these registers to the officers of private edu- 
cational institutions, for the purpose of compiling the statistics 
required. 

Inasmuch as it is the duty of your Board to prepare blank forms 
of inquiry for statistics to be furnished by private educational 
institutions, if in the judgment of the Board the school registers 
provided for the public schools are well adapted to be used for the 
purpose of obtaining statistics from private educational institutions 



1900.] PUBLIC DOCUMENT — No. 12. 79 

which the Board is required to obtain, and for which purpose it 
must provide blank forms of inquiry, I see no reason why you 
may not use the registers for that purpose. 
Yours very truly, 

Hose A M. Knowlton, Attorney-General, 



Public Records — Ink furnished to Cities^ Towns and Counties, 

St. 1899, c. 354, requiring public records of cities, towns, counties and the 
Commonwealtli to be kept in ink " furnished by the commissioner of 
public records," does not require the commissioner to furnish ink to 
cities, towns and counties free of expense. 

Sept. 25, 1899. 

Robert T. Swan, Esq., Commissioner of Public Becords. 

Dear Sir: — The act relative to inks for public records (St. 
1899, c. 354) provides that " No person having the care or custody 
of any public records in any department of the Commonwealth, or 
of any county, city or town therein, shall use or permit to be used 
upon any public record any ink . . . excepting such as is fur- 
nished by the commissioner of public records ; " and that the ink 
so furnished shall be examined by a chemist, under the commis- 
sioner's direction. This act is a revision of St. 1894, c. 378, whose 
provisions were similar, excepting that the ink was to be furnished 
by the Secretary of the Commonwealth, instead of by the Com- 
missioner of Public Records. 

The question submitted by your letter of September 8 is whether, 
under the statute referred to, it is your duty to furnish such ink to 
the officers of counties, cities and towns at the expense of the 
Commonwealth. I presume that whatever doubt you have in the 
matter arises out of the use of the word " furnished " in the statute 
referred to, which prohibits the use of any ink by officers of coun- 
ties, cities and towns excepting such as is '' furnished " by you. 
The word '' furnish,*' however, does not mean to furnish free of 
expense, but simply to provide. I do not think any inference can 
be drawn that ink is to be furnished free of expense to counties 
and municipalities, merely because the law requires that it be fur- 
nished by the Commonwealth. 

The Legislature has annually appropriated " for the purchase of 
record ink for public records a sum not exceeding five hundred 
dollars." Under this statute the Secretary of State, upon the 
advice of the Attorney-General, orally given, used the appropria- 
tion only for the payment of ink furnished to the departments of 
the Commonwealth, and for the employment of a chemist, as pro- 



80 ATTORNEY-GENERAL'S REPORT. [Jan. 

vided by the statute, to test the purity of the ink furnished. There 
is no appropriation for furnishing ink to counties, cities or towns, 
and it is plain that the Legislature have not construed the act in 
question as entailing upon the Commonwealth the expense of ink 
furnished by its officers excepting to the departments of the Com- 
monwealth. 

The purpose of the act was not to provide ink to counties and 
municipalities at the expense of the Commonwealth, but to insure 
the preservation of public records by requiring the use of ink ap- 
proved by an officer of the Commonwealth, after chemical analysis 
under his supervision. 

Yours very truly, 

HosEA M. Knowlton, Attorney- GeneraL 



Massachusetts Reformatory — Release of Prisoners — Co/nmis- 
sioners of Prisons — Rules and Regulations. 

The Commissioners of Prisons have no authority to make rules and regu- 
lations respecting the release of prisoners from the Massachusetts 
Reformatory. 

By St. 1884, c. 255, § 33, the question of whether a prisoner should be 
released is left to the discretion of the Board upon the facts in each 

case. 

Sept. 26, 1899. 

J. Warren Bailey, Esq., Secretary, Commissioners of Priso7is. 

Dear Sir : — Your letter of July 13 requires the opinion of the 
Attorney-General upon the following questions : — 

First. — Is it the duty of the Commissioners of Prisons to make 
a rule or rules which provide for the release of prisoners at the 
Massachusetts Reformatory ? 

Second. — If such rules are made by the Commissioners of 
Prisons, should they be approved by the Governor and Council? 

Third. — If such rules are made, and approved by the Governor 
and Council, have the commissioners authority to temporarily 
suspend one or more of such rules ? 

It further appears from your letter that certain rules have been 
prepared by the commissioners, and approved by the Governor 
and Council, which provide for the release of prisoners from the 
reformatory. 

The authority of your Board to make rules and regulations is 
found in St. 1884, c. 255, § 28, which provides as follows : " The 
commissioners of prisons shall have the general supervision of the 
said reformatory, and shall make all necessary rules and regu- 
lations for the government and direction of the officers in the dis- 



1900.] PUBLIC DOCUMENT — No. 12. 81 

charge of their duties, for the discipline of the prisoners and the 
custody and preservation of the property of the said reformatory. 
They shall make special provision for grading and classifying the 
prisoners and establish rules for dealing with them according to 
their behavior, industry in labor, and diligence in study. All rules 
and regulations adopted by the said commissioners shall be subject 
to the approval of the governor and council." 

It is clear that this statute does not, in express terms, require 
or even authorize the Board to make rules and regulations respect- 
ing the release of prisoners. 

On the contrary, the exercise of the power of release vested in 
your Board by the statute appears to me to be of a nature incon- 
sistent with the pre-establishment of any fixed rules upon a 
subject. It is found in St. 1884, c. 255, § 33, and is as follows : 
" When it shall appear to the commissioners of prisons that any 
person imprisoned in said reformatory has reformed, they may 
issue to him a permit to be at liberty during the remainder of his 
term of sentence, upon such conditions as they deem best ; and 
they may revoke said permit at any time previous to its ex- 
piration." 

It will be seen that the determination of the question of whether 
a person should be released under this statute is left to the dis- 
cretion of the Board upon the facts in each case. It is impossible, 
in the nature of things, for the Board to prejudge a prisoner's case, 
and determine by a series of fixed rules and regulations, previ- 
ously formulated, whether the prisoner has ''reformed," within 
the meaning of the statute. It was the obvious purpose of the 
Legislature to require the commissioners to find in each case, as it 
arises, whether, in their judgment, the prisoner has reformed, and 
to base their action upon their finding as to this fact. 

This being so, and their being nothing in the statute as above 
quoted authorizing the making of rules and regulations which 
refers in terms to the matter of release of prisoners, I am of 
opinion that it is not the duty of the commissioners to make rules 
providing in advance generally for the release of prisoners. 
Yours very truly. 

Hose A M. Knowlton, Attorney -General. 



82 ATTORNEY-GENERAL'S REPORT. [Jan. 



Insane Paupers — Jurisdiction of Board of Insanity when they are 
committed subject to Orders of Court. 

St. 1898, c. 433, § 11, does not confer upon the State Board of Insanity- 
authority to send to other States, or even to any place within this 
Commonwealth, paupers committed to a lunatic hospital, who are 
nevertheless subject to the orders of the court. 

Sept. 26, 1899. 

Owen Copp, Esq., Executive Officer, State Board of Insanity. 

Dear Sir : — St. 1898, c. 433, § 11, provides as follows : " The 
board may transfer insane pauper inmates, including those com- 
mitted under the provisions of section fifty of chapter eighty-seven 
of the Public Statutes, section fifteen of chapter two hundred and 
thirteen of the Public Statutes, sections sixteen and nineteen of 
chapter two hundred and fourteen of the Public Statutes, and sec- 
tions ten, twelve and fourteen of chapter two hundred and twenty- 
two of the Public Statutes, from any one of the state hospitals or 
asylums for the insane to another state hospital or asylum for the 
insane, and may transfer and commit inmates of the other state 
institutions to the state hospitals or asylums for the insane ; and 
it may send any such insane pauper inmates to any state or place 
where they belong when the public interest or the necessities of the 
inmates require such transfer." 

The question submitted by your letter of June 23 is whether, 
under this statute, the Board of Insanity may legally discharge 
from the institutions specified in said section any of the different 
classes of inmates therein described, and send them to any place 
without the State before the expiration of sentence or other 
restriction imposed by the court, and without a pardon by the 
Governor. 

The insane persons referred to in your letter include the fol- 
lowing : — 

Pirst. — A person who, being held in prison on a charge of hav- 
ing committed an indictable offence, is not indicted by the grand 
jury, by reason of insanity. Pub. Sts., c. 213, § 15. 

Second. — A person indicted, who at the time appointed for trial 
is found to the satisfaction of the court to be insane. Pub. Sts., 
c. 214, § 16. 

Tliird. — One who is acquitted by the traverse jury, by reason of 
insanity. Pub. Sts., c. 214, § 19. 

In all the foregoing cases it is expressly provided that the per- 
sons so found to be insane shall be committed by the court to a 
State lunatic hospital, under such limitations as may seem proper. 

Fourth. — Convicts in the State Prison or Reformatory, who, 



1900.] PUBLIC DOCUMENT — No. 12. 83 

having been found upon investigation to be insane, are", under the 
warrant of the Governor, removed therefrom to a State lunatic 
hospital. Pub. Sts., c. 222, § 10. 

Fifth. — Convicts in a house of correction or prison other than 
the State Prison, who, having been found to be insane, are trans- 
ferred by order of a judge of the Supreme Judicial or Superior 
Court to an insane hospital. Pub. Sts., c. 222, § 12. 

Sixth. — Persons held in any jail for trial or for sentence who 
appear to be insane and are committed by a judge to a lunatic hos- 
pital. Pub. Sts., c. 222, § 14. 

Persons of the three preceding classes, who have been committed 
under the provisions of the statutes to an insane hospital, are to be 
detained therein while insane ; provided, however, that, if they be- 
come again sane, they shall be returned to the jail, house of cor- 
rection or State Prison, as the case may be, there to be held under 
the original order of commitment. 

Seventh. — " Any insane person confined by legal authority in a 
jail, house of correction, or such county receptacle, who may be 
removed therefrom to a hospital by order of the governor." Pub. 
Sts., c. 87, § 50. 

From the foregoing enumeration it will be seen that, if the 
statute which is the subject of your inquiry is to be construed as 
authorizing the sending of such insane persons to any State or 
place where they belong, power is given to the Board, not alone ta 
set aside the order of the court committing the person to the hos- 
pital, but practically to exercise the power of pardoning convicts, 
which, under the Constitution, is vested exclusively in the Gov- 
ernor. No other tribunal than the Governor, not the Legislature 
even, may interfere with a sentence of the court in a criminal case 
by way of pardon, or by anything which amounts to an abrogation 
of the sentence. Opiyiion of Justices^ 14 Mass. 472. Such a con- 
struction of the statute is not to be entertained, therefore, if any 
other interpretation be possible. 

Undoubtedly the grammatical construction of the section quoted 
at the beginning of this opinion would require that the phrase 
beginning " and it may send such insane pauper inmates to any 
state," etc., should include all those mentioned in the first part of 
the section ; but, for the reasons I have already given, I think the 
Legislature did not so intend. The primary purpose of the section 
is to authorize the transfer of insane paupers, whether criminal or 
not, from one State institution to another. This may properly be 
done in the case of persons committed thereto by order of a judge, 
without interfering with the authority of the court or with the par- 
doning power of the Governor. It is not a violent strain upon the 



84 ATTORNEY-GENERAL'S REPORT. [Jan, 

language of the section to construe this as its primary object, and 
to limit the application of the last clause, authorizing the Board to 
send prisoners to their homes in other States, as applying only to 
such inmates of State hospitals as are under the complete jurisdic- 
tion of the Board itself. 

I am of opinion that this is the true construction of the section, 
and that, therefore, the section does not give your Board authority 
to send to other States, or even to any place within the State, per- 
sons committed to a lunatic hospital, but who are nevertheless 
subject to the orders of the court. 
Yours very truly, 

HosEA M. Knowlton, Attorney-General. 



Medical Examiners — Still-born Infants — Attor7iey- General. 

Medical examiners are not entitled to the opinion of the Attorney-General, 
and therefore are not bound by it. 

When a medical examiner receives notice that the dead body of a person, 
who is supposed to have come to his death by violence, has been 
found, he should not decline to view it because it is reported to him 
to be the body of a still-born infant. If upon viewing it he deter- 
mines that it is a still-born infant, there appears to be no reason why 

he should hold an autopsy. 

Sept. 26, 1899. 
F. A. Harris, M.D., Medical Examiner. 

Dear Sir : — Your letter of July 19 inquires as to the duties of 
a medical examiner in the case of still-born infants. It raises the 
question whether the bodies of infants born dead which could have 
ihad no existence independent of the mother are "dead bodies," 
within the meaning of the statute. The question is not one upon 
which the Attorney-General may give an authoritative opinion, 
for medical examiners are not entitled to his opinion, and are 
therefore not bound by it. I am very glad, however, to submit 
my views upon this very interesting question. 

The successive proceedings provided by Pub. Sts., c. 26, in the 
case of dead bodies are : first, a view ; second, an autopsy ; and 
third, an inquest. A view is to be had whenever the medical ex- 
aminer " has notice that there has been found, or is lying within his 
county, the dead body of a person who is supposed to have come 
to his death by violence." An autopsy is to be held when, having 
viewed the body, and " deeming a further examination neces- 
sary," he is authorized in writing by the district attorney or town 
officers to perform it. An inquest is to be held when he certifies 
that, in his opinion, the death was caused by violence, and so 
reports to the district attorney and to the justice of the District 
Court. 



1900.] PUBLIC DOCUMENT — No. 12. 85 

It will be seen that the question whether there shall be an 
inquest, and subsequently an autopsy, depends, so far as the 
medical examiner is concerned, upon the opinion he forms as a 
result of his view of the body, and his inquiry into the circum- 
stances ; but the view itself is to be had whenever he is notified 
that there is found the dead body of a person '* who is supposed 
to have come to his death by violence." The statute does not 
specify upon whose supposition the view is to be had. It clearly 
is not the medical examiner, for he cannot form any opinion until 
he has viewed the body. It is obvious that the intention of the 
framers of the act was to authorize any officer, or even a private 
citizen, to give information of dead bodies found or lying within 
the district, to the end of securing in all cases of doubtful death 
the official view of a medical examiner, it being deemed wise in 
all doubtful cases that a view should be had. I have on other 
occasions expressed my sense of the importance of action by 
medical examiners in all doubtful cases. They are, it is true, not 
to incur expense needlessly or wantonly. But their principal 
function is to furnish evidence for the detection of crime, and it 
is of the first importance that in every case of doubt the examiner 
should see the body, that he may know definitely whether there 
may have been crime. 

This being so, I do not think the medical examiner is called 
upon to deal with the discussion of the subtle question whether 
the dead body of a still-born infant can be deemed to be a '' dead 
body" within the meaning of the statute. It is, nevertheless, a 
human body. If the medical examiner is notified that such a body 
is found, and that the supposition exists in the minds of those 
interested that there has been violence, he is not to refrain from 
viewing the body by any consideration of the question whether the 
body of a still-born infant is scientifically the body of a person. 
Indeed, the first question to be determined is whether it is in fact 
a still-born infant. Even if, upon a view, such appears to be 
the case, there may have been a violation of law in concealing its 
death if born a bastard. Other important questions may arise 
which can only be determined accurately by the inspection of a 
skilled physician. 

If upon viewing the body he definitely determines that it is a 
still-born infant, there appears to be no reason why he should hold 
an autopsy ; but I am clearly of the opinion that, when notice is 
received by him, as provided by the statute, that there has been 
found the dead body of a person who is supposed to have come to 
his death by violence, he should not decline to view the body for 
the reason that it appears to him upon the report received to be 



SQ ATTORNEY-GENERAL'S REPORT. [Jan. 

the body of a still-born infant ; but that, on the other hand, he 
should view the body, in order to be able, among other things, to 
ascertain that fact beyond doubt. 
Yours very truly, 

HosEA M. Knowlton, Attorney- General. 



Registered Pharmacist — Revocation of Certificate — New Exam- 
ination. 

The Board of Registration in Pharmacy is not required to examine an 
applicant for a certificate as a pharmacist, if it has revoked a license 
formerly issued to him. 

Oct. 3, 1899. 

Amos K. Tilden, Esq., Secretary, Board of Registration in Pharmacy. 

Dear Sir : — Your letter of September 29 requires the opinion 
of the Attorney-General upon the following question: *' A regis- 
tered pharmacist, holding a certificate of registration in pharmacy, 
issued by this Board, the holder of said certificate having been 
notified and appearing before the Board upon a formal com- 
plaint, the nature of the evidence being of such a character as 
to warrant the revocation altogether of his certificate of registra- 
tion in pharmacy, the Board having done so under the provision 
of the pharmacy law, — has the defendant any legal right to 
compel the Board of Registration in Pharmacy to grant him an 
examination, in case the applicant should prove himself qualified 
to secure a second certificate of registration in pharmacy, thereby 
removing his disability and restoring him to his former position as 
a registered pharmacist? " 

A literal construction of the statute (St. 1896, c. 397) would 
undoubtedly require you to examine a person applying therefor, 
and to issue to him a certificate as a pharmacist, if found qualified, 
even though a license previously granted to him had been revoked 
by your Board. I cannot advise you, however, that the Legis- 
lature intended such a nullification of the provisions of its own 
statute. 

If you are authorized to revoke permanently a license granted 
to a pharmacist, as the Legislature undoubtedly intended, you 
cannot be required to examine him for a new license. 

Whether such a law is constitutional, it is not necessary now 
to consider. My only purpose is to advise you how, in my judg- 
ment, the law should be construed so as to carry out the intent of 
the Legislature. 

Yours very truly, 

HosEA M. Knowlton, Attorney -General. 



1900.] PUBLIC DOCUiMENT — No. 12. 87 

High School — Manual Training School — Tuition — Payment by 

Town. 

The Mechanic Arts High School of Springfield is not a high school within 
the meaning of St. 1898, c. 496, § 3, and the town of East Long- 
meadow is not required to pay the tuition of a child residing therein 
and attending such school. If it sees tit to pay it, it cannot ask 
reimbursement therefor from the treasury of the Commonwealth. 

Oct. 6, 1899. 

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

Dear Sir: — Your letter of September 15 requires the opinion 
of the Attorney-General upon two questions : — 

First. — "Is East Longmeadow, a town in which no high school 
or school of corresponding grade is maintained, compelled to ap- 
prove the attendance of a child at the Mechanic Arts High School 
at Springfield, and so to become responsible for the tuition of that 
child?" 

Second. — " Can the State be called upon to reimburse the town 
for such payment?" 

Upon the facts stated in a supplementary letter from you, it 
appears that the town of East Longmeadow is within the provi- 
sions of St. 1898, c. 496, § 3, which provides that " Any town of 
less than five hundred families or householders in which a public 
high school or a school of corresponding grade is not maintained 
shall pay for the tuition of any child who resides in said town and 
who attends the high school of another city or town, provided the 
approval of such attendance by the school committee of the town 
in which the child resides is first obtained." The section further 
provides for the imposition of a penalty upon any town which 
refuses to pay the tuition in such cases, and upon a member of 
the school committee who refuses to approve the attendance of a 
child residing in such town in the high school of some other town 
or city, if qualified to enter such high school. 

Section 4 of the same statute provides that " Every town and 
city of twenty thousand or more inhabitants shall maintain as a part 
of both its elementary and its high school system the teaching of 
manual training." East Longmeadow, being a town of less than 
twenty thousand inhabitants, is therefore not required to provide 
manual training for its children, either in its own schools or by 
paying tuition to towns in which manual training is required. 
The city of Springfield, being required to provide for manual 
training both in its elementary and high school system, has estab- 
lished the Mechanic Arts High School therefor. It is a school in 
which manual training is made a specialty, although other branches 



88 ATTORNEY-GENERAL'S REPORT. [Jan. 

are taught to some extent. The tuition for children attending from 
other towns is, as I am informed, the same as that required for 
attendance at the regular high school. 

I am of opinion that the term " high school" in the statute is 
used in its ordinary and well-understood acceptation, and signifies 
the school described in §§ 1 and 2 of the same statute ; that is to 
say, in which instruction is given in " such subjects designated 
in section one as it may be deemed expedient to teach in a high 
school, and in such additional subjects as may be required for the 
general purpose of training and culture, as well as for the special 
purpose of preparing pupils for admission to state normal schools, 
technical schools and colleges." The subjects designated in § 1, 
it is true, include manual training ; but I do not think a school in 
which the teaching of manual training is made the principal and 
special work is the sort of high school intended in the section re- 
quiring towns not maintaining such an institution to pay the tuition 
of scholars attending in towns where such schools are maintained. 
This is especially true in respect to such towns as East Long- 
meadow, in which manual training is not a required study. 

The answer to your second question follows from a considera- 
tion of the first question. The provision for reimbursement to 
towns for amounts expended for tuition from the treasury of the 
Commonwealth is in the same section (§ 3), and provides that 
'' all necessary sums which have actually been expended for high 
school tuition under the provisions of this section" shall be reim- 
bursed to the town within its provisions. The expression "all 
necessary sums" in my judgment refers to the sums which the 
towns are compelled to pay. If the town sees fit to expend 
money for tuition which it is not compelled to, it cannot ask 
reimbursement therefor from the treasury. 
Very truly yours, 

HosEA M. Knowlton, Attorney- General. 



State Officers — When eiititled to Opinion of Attorney -General. 

Officers of the State government are entitled to the opinion of the At- 
torney-General only upon questions necessary or incidental to the 
discharge of the duties of their office. 

Nov. 15, 1899. 

Maj.-Gen. Samuel Dalton, Adjutant-General. 

Dear Sir : — I have the honor to acknowledge your letter of 
November 2, propounding several questions for the Attorney- 
General, touching the interpretation of St. 1893, c. 367, § 33. 

Oflficers of the State government are entitled to the opinion of 



1900.] PUBLIC DOCUMENT — No. 12. 89 

the Attorney-General upon questions necessary or incidental to 
the discharge of the duties of their office. The questions stated 
in your letter are interesting and important, but I am unable at 
present to see how they in any way concern the performance of 
your duties as Adjutant-General. I must, therefore, beg to be 
excused from answering them. 
Yours very truly, 

Hose A M. Knowlton, Attorney- General. 



Boston School for the Deaf — Sectarian Institution — Approval by 
Board of Education — Constitutional Law. 

A school for the instruction of the deaf is not a public school, within the 
meaning of the eighteenth amendment to the Constitution, and the 
tuition of deaf children attending such an institution, even if it is 
maintained by a religious denomination, may be paid by the Common- 
wealth. 

The State Board of Education may approve the Boston School for the 

Deaf as an institution to which such children may be sent at the 

expense of the Commonwealth. 

Nov. 15, 1889. 

C. B. TiLLiNGHAST, Esq., Clerk, Slate Board of Educatioii. 

Dear Sir: — Your letter of October 20 requires the opinion of 
the Attorney-General upon the question whether, under the provi- 
sions of St. 1888, c. 239, the approval by the Board of Education 
of the Boston School for the Deaf would be in accordance with 
the Constitution and statutes of the Commonwealth, particularly 
with Art. 18 of the Amendments to the Constitution. 

The statute in question provides in § 1 that " Upon the request 
of the parents or guardians and with the approval of the state 
board of education, the governor may send such deaf mutes or 
deaf children as he may deem fit subjects for education, for a term 
not exceeding ten years in the case of any pupil, to the American 
Asylum at Hartford in the state of Connecticut, the Clarke In- 
stitution for Deaf Mutes at Northampton, or to the Horace Mann 
School at Boston, or to any other school for deaf mutes in the 
Commonwealth, as the parents or guardians may prefer." The 
section further provides for the payment of the expenses of such 
children from the treasury of the Commonwealth. 

Your letter states that the Boston School for the Deaf is under 
the control of a religious denomination, although it is claimed 
that the instruction given in the school is entirely non-sectarian. 
For the purposes, however, of the present inquiry, I do not deem 
it necessary to inquire whether this claim be true ; for I am of 



90 ATTORNEY-GENERAL'S REPORT. [Jan. 

opinion that no provisions of the Constitution, or amendments 
thereto, prohibit the approval by your Board of the school under 
consideration. 

The amendment in question is as follows : "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 ex- 
pended in, no other schools than those which are conducted accord- 
ing 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." This amendment 
was adopted in 1855. Its principal purpose, as appears from the 
history of the proceedings of the convention of 1853, was to insure 
permanently the expenditure of the income of the Massachusetts 
School Fund for the support of the common or public schools. 
It is sometimes said to have been adopted for the purpose of 
preventing the appropriation of public funds for the support of 
sectarian institutions of learning. Although this result undoubt- 
edly follows from the fact that the common and public schools of 
the Commonwealth are non-sectarian, such does not seem to have 
been the primary purpose of the amendment, and such, indeed, is 
not its language. Excepting in the last clause, the amendment 
contains no restriction whatever as to sect. It provides, in terms, 
that public moneys, raised for the support of public or common 
schools, shall be expended only in schools carried on under the 
supervision of the authorities of the town or city in which the 
money is to be expended. 

The meaning of the terms " common" or " public" schools, as 
used in the amendment, is well settled. In Jenkins v. Andover,^ 
103 Mass. 94, 99, speaking of public schools and common schools. 
Chief Justice Chapman said : " These are the schools to which the 
eighteenth amendment applies, — schools which towns are required 
to maintain, or authorized to maintain, though not required to do 
so, as a part of our system of common education, and which are 
open and free to all the children and youth of the towns in which 
they are situated, who are of proper age or qualifications to attend 
them, or which adjoining towns may unite to support as a part of 
the same system. . . . This class of schools does not include 
private schools which are supported and managed by individuals ; 
nor colleges or academies organized and maintained under spe- 
cial charters for promoting the higher branches of learning, and 
not specially intended for, nor limited to, the inhabitants of a 
particular locality." 



1900.] PUBLIC DOCUMENT — No. 12. 91 

Again, in Merrick v. Amherst, 12 Allen, 500,508, Chief Justice 
Bigelow said : "The phrases ' public schools' and ' common schools' 
bave acquired under the legislation and practice of this State a 
well-settled signification. They are never applied to the higher 
seminaries of learning, such as incorporated academies and col- 
leges. These, in a certain broad and comprehensive sense, are 
public institutions, because they are controlled by corporations, 
and are usually open to all persons who are willing to comply 
with the terms of admission and tuition. But the broad line of 
distinction between these and the ' public or common schools ' 
is, that the latter are supported by general taxation, that they 
are open to all free of expense, and that they are under the 
immediate control and superintendence of agents appointed by the 
voters of each town and city. That the amendment was intended 
to apply only to these schools is manifest, not only from the terms 
in which it is expressed, but also from the history of its origin 
:and adoption as a part of the organic law." 

It is to such schools that the amendment relates. But the edu- 
cation of deaf mutes is no part of the common school system of 
the Commonwealth, and has never been so regarded by the Legis- 
lature. Special provisions from time to time have been made for 
the support and training of that class of children, and for many 
years an annual appropriation has been made therefor. But the 
provisions of the 18th Amendment have no more to do with these 
matters than with any other of the great philanthropies of the 
Commonwealth . 

It is scarcely necessary to say that the last clause of the amend- 
ment, to wit: "such moneys [meaning moneys appropriated by 
the State for the support of public and common schools] shall 
never be appropriated to any religious sect for the maintenance 
exclusively of its own school," is not intended to prohibit the 
State from paying for the education and support of its mutes in 
any institution carried on for that purpose, public or private, and 
whether under the control of a religious denomination or not. 

For these reasons, I am of opinion that there is nothing in the 
Constitution of Massachusetts which prevents your Board from 
approving the Boston School for the Deaf as an institution to 
which such children may be sent at the expense of the Common- 
monwealth. 

Yours very truly, 

HosEA M. Kno>vlton, Attorney- General. 



92 ATTORNEY-GENERAL'S REPORT. [Jan. 



Massachusetts Hospital - for Epileptics — Sane Epileptics — Com- 
mitment — Constitutional Laic. 

An epileptic who is not insane cannot be committed to the Massachusetts 
Hospital for Epileptics. 

The Legislature has no constitutional authority to enact a law authorizing 
the commitment to and indefinite detention in a hospital or other place 
of detention of a sane person who has committed no crime. 

Dec. 1, 1899. 
Owen Copp, Esq., Executive Officer, State Board of Insaiiity. 

Dear Sir : — Your letter of October 13 requires the opinion of 
the Attorney-General upon the question " Whether an epileptic^ 
who is not insane, may legally be committed to the Massachusetts 
Hospital for Epileptics, in the same manner as applies to the com- 
mitment of an insane epileptic of the proper class. And whether 
such commitment conveys the same power of detention as in the 
case of an insane epileptic." 

The hospital for epileptics was established under the authority 
of St. 1895, c. 483. Section 8 of that chapter, as amended by 
St. 1899, c. 211, § 1, is as follows : "When the buildings altered 
or constructed under the provisions of this act are so far com- 
pleted that in the opinion of the trustees the admission of patients 
may properly be made thereto, said trustees shall so notify the 
governor, who shall thereupon issue his proclamation establishing 
the Massachusetts hospital for epileptics, and thereafter the trus- 
tees may receive into said hospital for care and treatment any 
person of the age of fourteen years or more, not a criminal, who 
is subject to epilepsy, provided such person be neither an idiot^ 
an inebriate or violently insane." 

By § 9 of the same chapter it is provided that " The provisions 
of the Public Statutes and amendments thereto consistent with 
this act, applicable to the state lunatic hospitals, regarding the 
commitment, detention, transfer and discharge of insane patients^ 
are hereby made applicable to the Massachusetts hospital for 
epileptics, and insane epileptics may hereafter be committed to 
the said hospital for epileptics, provided such persons are of the 
class mentioned in section eight." 

Section 10 relates to the reception and detention of persons at 
their own request, and is not material to the present inquiry. 

It will be seen that, under § 9 above quoted, only epileptics who 
are insane may be committed to the Hospital for Epileptics, in the 
same manner and under the same provisions as insane persons are 
committed to other lunatic hospitals. It is scarcely necessary to 



1900. J PUBLIC DOCUMENT — No. 12. 93 

say that, even if the statute purported to provide otherwise, it 
would be unconstitutional. The Legislature may not enact a law 
authorizing the commitment to and indefinite detention in a hos- 
pital or any other place of detention, of sane persons who have 
committed no crime. 

Yours very truly, 

HosEA M. Knowlton, Attorney-General. 



State Highway — Street Mailway — Alteration of Location — 
Assessment of Expense. 

St. 1898, c. 578, §§ 16 and 24, confer upon the Massachusetts Highway 
Commission authority to alter a location granted by the local author- 
ities to a street railway company, before the street was taken as a 
State highway, and to assess the expense thereof upon the railway 
company, or upon the Commonwealth, or upon both. An assessment 
upon the Commonwealth must be paid out of the appropriation for the 
commission. 

No part of such expense can be assessed upon abutters. 

Jurisdiction to alter a location granted after the street was taken for a 

State highway remains in the local authorities. 

Dec. 6, 1899. 

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

Dear Sir: — Your letter of July 11 requires the opinion of the 
Attorney-General upon the question "as to what proportion, if 
any, of the expense of altering the location of street railway tracks 
on State highways, when done under the orders of the Massa- 
chusetts Highway Commission, may be borne by said commission, 
under the provisions of § 16, c. 578 of the Acts of 1898; also 
what interpretation should be put upon the phrase ' such party or 
parties,' in the last sentence of said section." 

The section in question was originally enacted in St. 1864, c. 
229, § 14. So much of this section as relates to alteration of the 
location of tracks is as follows: "The location and position 
of any tracks may be altered upon application of any party inter- 
ested, by the same authority, and in the same manner, as is herein 
provided for the original location. The expense of such alteration 
shall be borne by such party as the board of aldermen or select- 
men may determine." It is obvious that the Legislature did not 
contemplate that the expense of such alteration should necessarily 
be borne in whole, or even in part, by the company. An exami- 
nation, moreover, of the proceedings which led to the enactment 
of this section, makes it clear that the Legislature had no such 
intent. An amendment was proposed in the House, the effect of 
which would be to impose the entire expense of alteration upon the 



94 ATTORNEY-GENERAL'S REPORT. [Jan. 

corporation ; but the amendment was rejected. But just who were 
intended to be included in the expression "such party," is a 
question of some difficulty. 

A change in the position of railway tracks upon a street may be 
of benefit to the railway company, to the municipality, or to the 
abutters, or even to all of them. It does not necessarily follow, 
however, that authority is given to the municipal board to assess 
the expense of alteration upon all these parties. Even if it were 
constitutional to tax abutters for such expenses, which may be 
doubtful, it is very clear that the statute does not intend that this 
should be done by the Board. Statutes authorizing assessments 
for local improvements upon estates especially benefited usually 
provide that such assessments constitute a lien which may be en- 
forced upon such estates. Furthermore, if the Legislature had 
intended that abutters should be assessed, it is probable that pro- 
vision would have been made for such assessment in the usual 
manner ; to wit, by providing some rule of proportion, based upon 
peculiar and special benefits to property, by which the local au- 
thorities should be governed. No rule of assessment is laid down, 
and the matter is left to the sole discretion of the local authorities. 
An assessment under this statute might be determined upon any 
ground which the local authorities deemed just and proper, and 
might not be founded, in any great degree, if at all, upon special 
and peculiar benefits, and might even, in any particular case, 
largely exceed such benefits. This fact would constitute no objec- 
tion to an apportionment between political sub-divisions of the 
Commonwealth. Sears v. Boston^ 173 Mass. 71. But it would 
be suflScient to render the statute unconstitutional when applied 
to the case of individuals ; for taxation by special assessment is 
constitutionally possible only when founded upon special and 
peculiar benefits to the property, on account of which the tax is 
laid, and then only to an amount not exceeding such special and 
peculiar benefits. Sears \. Street Commissioners, 173 Mass. 350; 
Seal's V. Boston, 173 Mass. 71. 

None of these objections, however, may be urged against giving 
the Board authority to assess the whole or any portion of such 
alteration upon the city or town. Cases may and undoubtedly 
do often arise where the alteration is sought solely for the con- 
venience of the public, or to make it easier and more economical 
for the municipality to keep the street in repair. In such cases it 
is not difficult to conclude that the Legislature had in mind that 
the expense of altering the tracks might be properly imposed by 
the Board ordering the alteration upon such city or town. A 
municipal corporation, it is true, may not be charged with the 



1900.] PUBLIC DOCUMENT — No. 12. 95 

burden of furnishiDg money other than for public purposes. 
Prince v. Crocker^ 166 Mass. 347, 361. Agawam v. Hampden^ 
130 Mass. 528, 536. But the expense of altering the location 
of railway tracks in a street may be an expense incurred for a 
public purpose. The original location of tracks in a public high- 
way is granted wholly for the use and benefit of the public, and 
no exclusive or private rights are granted to the corporation. A 
location is merely a license to use the public highway for a special 
method of transportation of travelers thereon, and is in fact granted 
by the municipal body only after an adjudication that it is required 
by "the interests of the public." Pub. Sts., c. 113, § 7. See 
also: Metropolitan R. R. Co. v. Quincy R. R. Co,, 12 Allen, 
262; Attorney- General v. Metropolitan R. R., 125 Mass. 515, 
517; Howe v. West End Street Ry. Co., 167 Mass. 46, 49. The 
recent legislation authorizing the building of a subway by the city 
of Boston, and the leasing of it to a street railway company, was 
upheld on the ground that the expense incurred was for public 
purposes. Prince v. Crocker, 166 Mass. 347. 

Under the authority of the case last cited, it is obvious that an 
act authorizing a city or town to lay rails for street railways and 
lease them for such use would be constitutional. This being so, 
it is no less obvious that the expense of altering the location of 
street railway tracks from their original to a new location in the 
street may be an expense incurred for a public purpose, for which 
the public may be taxed. If the alteration of a location is neces- 
sary for the convenience of the public, and improves the highway 
for ordinary travel as distinguished from street railway travel, 
the work of alteration is undoubtedly for a public use, and the 
municipality may properly be assessed therefor. 

I have no doubt, therefore, that it was the intention of the 
original act to give to the Board having jurisdiction to order 
the alteration of tracks and the assessing of the expense therefor 
the right to determine also how far such expense should be borne 
by the railway company, and whether any part of it should be 
assessed upon the municipality ; but, for the reasons above stated, 
I am of opinion that it was not the intention of the Legislature to 
authorize the assessing of any portion of such expense upon abut- 
ters, even though their estates may be benefited by such alteration. 

The section I have been considering (St. 1864, c. 229, § 14) 
was re-enacted in the Pub. Sts., c. 113, § 22, in substantially the 
same words ; but in 1898 a new statute in relation to street rail- 
ways was enacted (c. 578) and in that act some changes were 
made in the language of the section. The new section (§ 16) pro- 
vides that the expense of the alteration " shall be borne by such 



96 ATTORNEY-GENERAL'S REPORT. [Jan. 

party or parties, aad in such proportions, as the board of aldermen 
or selectmen may determine." I do not think, however, that this 
change of language can be taken to indicate any change in the 
purpose of the Legislature as to the duty of the Board having 
jurisdiction to order such alteration and to assess the expense 
thereof ; and what I have said as to the interpretation of the 
section as it was originally enacted, and as it appears in the Pub- 
lic Statutes, applies with equal force, in my opinion, to the section 
as it now stands. 

It remains to consider whether, under this section, the Com- 
monwealth, in the case of street railways located on a State 
highway, may be a party benefited in the sense that a portion 
of the expense of altering the location of such tracks may be 
assessed upon it. The legislation concerning the jurisdiction re- 
spectively of the State Board and the municipal authorities over 
street railways in State highways is by no means clear, and, to 
say the least, is somewhat inconsistent. 

The first statute relating to this question, so far as it concerns 
State highways, is St. 1896, c. 541, which provided in § 1 as 
follows : " Whenever, in the construction of a state highway it 
becomes necessary, in the opinion of the Massachusetts highway 
commission, to change the location, relay or change the grade of 
that part of any street railway located on said highway . . . said 
commission may . . . order the company owning or operating said 
railway to make such changes : provided, Jioicever, . . . the cost 
of making the same . . . shall be paid by said commission ; said 
cost with interest at a rate not exceeding four per cent, per annum 
shall be paid by said railway company to the Commonwealth in 
ten equal annual payments." By St. 1897, c. 355, § 4, the pro- 
visions of the section above quoted were made to include the 
repair of a State highway as well as the construction thereof. 

In August, 1896, the Highway Commission requested the opinion 
of the Attorney-General on the question: "Do the selectmen of 
a town lose their powers to direct a railway company to move its 
tracks or make any other changes, under Pub. Sts., c. 113, § 22, 
on the passage of St. 1896, c. 541?" The Attorney-General, in 
November, 1896, advised the commission that while a State high- 
way was in process of construction the commission had exclusive 
jurisdiction under the statute in question to determine what changes 
should be made in a street railway located on said highway ; but 
that when the highway was constructed, the jurisdiction as to such 
changes, conferred upon the local authorities by Pub. Sts., c. 113, 
§ 22, revived. 1 Op. Atty.-Gen. 392. 

The statute of 1896, above quoted, was repealed by the street 



1900.] PUBLIC DOCUMENT — No. 12. 97 

railway act of 1898. St. 1898, c. 578, § 26. St. 1897, c. 355, § 4, 
above referred to, was not in terms repealed ; but the statute of 
which it was an amendment having been repealed, such repeal 
must, in my opinion, be deemed to have repealed the amendment 
as well. By the statute of 1898 the jurisdiction of the State High- 
way Commission over railways already located in State highways 
before the taking thereof for the purpose of a State highway is 
defined by § 24 of that act, which provides that "Whenever a 
street, road, bridge or other public way in which a street railway 
location has been previously granted by the local authorities is 
laid out, taken charge of or constructed by or under authority of 
the state highway commission, said commission shall thereafter, 
so long as it has charge thereof, have and exercise with regard 
to the location and maintenance of street railways therein the 
same authority, in the same manner and subject to the same 
provisions, as is conferred by this act upon boards of aldermen 
and selectmen, such authority to be exercised in the same manner, 
subject to the same provisions, and subject to the same rights on 
the part of abutters and street railway companies, as are herein 
provided with respect to the relocation and maintenance of street 
railways in public ways not under the jurisdiction or charge of 
said commission." 

It will be seen that the effect of this section is to give to the 
Massachusetts Highway Commission, in cases where the location 
existed before the way was taken as a State road, all the authority 
as to the alteration of tracks in State highways and the assessment 
of the expense of such alterations as is conferred upon the local 
board in the case of town and county ways. In the case, however, 
of State highways, the Commonwealth, by force of the statutes 
creating your commission and authorizing the building of State 
highways, takes the place of the municipality. The whole expense 
of the construction and maintenance of State highways is borne 
by the Commonwealth. The burden resting upon municipalities 
with respect to ways within their borders is taken from them so 
far as concerns State highways, and devolves upon the Common- 
wealth. The same considerations which, in the case of ordinary 
ways, lead to the conclusion that the expense of alteration of street 
railway tracks may be assessed upon the municipality as the party 
benefited, constrain me to the opinion that, when the Common- 
wealth takes the place of the municipality, it may be subject to the 
same assessment ; particularly as the matter of assessment is in the 
hands of a commission representing the Commonwealth, charged 
with the duty of the maintenance of such ways, and which is 
granted annually an appropriation therefor. 



98 ATTORNEY-GENERAL'S REPORT. [Jan. 

This section, however, is limited in terms to the case where a 
street railway had already been constructed upon a way taken for 
the purpose of a State highway. The language of § 24 is so clear 
and unmistakable that I am unable to construe it as applying to 
street railways located upon State highways after the same have 
been constructed. The jurisdiction of the State Board over street 
railways so located is, as I have already had occasion to advise 
the Board, one of approval only. By St. 1897, c. 355, § 1, it is 
provided that " No opening shall be made in any such road, nor 
any structure placed therein, nor shall there be made any change 
or removal of structures already placed therein, except with the 
approval of and in accordance with a permit from said commis- 
sion, which shall exercise complete and permanent jurisdiction 
over state highwaj'S." I have advised the Board that this statute 
did not and was not intended to take away the jurisdiction of the 
municipal board in the matter of granting locations for street rail- 
ways in State highways. They are to pass, in the first instance, 
upon the question whether the convenience and necessity requires 
such a location, but their action, under the statute above quoted, 
is subject to the approval of your commission. See 1 Op. Atty.- 
Gen. 317, 489. 

I find no statute conferring jurisdiction upon the State Board 
in the matter of the location and alteration of location of street 
railways in State highways, locations for which have been granted 
after the construction of the same as State highways. The result 
is that, under St. 1898, c. 578, § 24, in the case of railways, 
locations for which were granted upon State highways before the 
taking of the same by the Commonwealth, the sole jurisdiction 
as to change of location is in your commission ; while, on the 
other hand, in the case of railways located upon a State highway 
after it has been constructed, the jurisdiction remains with the 
municipal board. I cannot think that this was the deliberate 
intent of the Legislature, and I submit to your Board whether 
it is not expedient to ask for additional legislation, to the end 
that this inconsistency may be removed. 

In cases, however, where your commission has jurisdiction to 
alter the location of street railway tracks, to wit, where such 
tracks have been laid before the construction of a State high- 
way, I am of opinion, for the reasons hereinbefore stated, that 
the commission may determine, in its discretion, that an altera- 
tion of the position of street railway tracks ordered by it in a 
State highway is for the benefit, in whole or in part, of the Com- 
monwealth, and may therefore direct that the expense of such 
alteration shall be paid out of the appropriation made for the 



1900.] PUBLIC DOCUMENT — No. 12. 99 

maintenance of such ways and to be expended under its direction. 
All the expenditures made by the commission for the maintenance 
of a State highway are made for the benefit of the public ; and if 
the public are benefited by the alteration of street railway tracks 
more than the company whose tracks are altered, or if the public 
alone are benefited, and no benefit whatever accrues to the street 
railway company, the commission may determine that the expense 
shall be borne, in such proportions as seem reasonable, by the 
Commonwealth and by the company ; or, in the case last supposed, 
by the Commonwealth alone. 

I have not overlooked the fact that one-fourth of the expense of 
the construction and maintenance of State highways is ultimately 
borne by the county in which such ways are located. St. 1894, 
c. 497, § 5. I am of opinion, however, that the meaning of this 
statute is that the county is to pay one-fourth of whatever ex- 
pense may be lawfully incurred by your commission ; and that 
this governs the expense of alteration of locations, so far as the 
same may be assessed upon the Commonwealth by your Board. 

Upon the whole, therefore, I am of opinion that your commis- 
sion, when it orders an alteration in the location of street railway 
tracks on a State highway, is authorized to assess the expense 
thereof upon the railway company or upon the Commonwealth 
(by payment therefor out of its appropriation) or upon both, in 
such proportions as it may determine. 
Yours very truly, 

HosEA M. Knowlton, Attorney- General. 



Inquest — Stenographer's Bill — District Court Judge — District 

Attorney, 

A justice of a district court has no authority to employ a stenographer to 
report the evidence at an inquest held by him, at the expense of the 
county, except possibly in the case of an inquest Into the conduct of 
an election, under St. 1898, c. 548, §§ 304-310. 

District attorneys, by virtue of their general powers as prosecuting officers, 
may order the testimony taken at an inquest when crime is suspected, 
and written out for their subsequent use, at the expense of the county. 

n T^ T^ ^ ^ I^EC. 16, 1899. 

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

Dear Sir : —Your letter of April 11 requires the opinion of the 
Attorney-General upon the following questions : — 

First. — " Is a county treasurer authorized to pay a stenographer's 
bill for services rendered in an inquest held by a justice of a district 



100 ATTORNEY-GENERAL'S REPORT. [Jan. 

court when such bill is endorsed as examined and approved by such 
justice?" 

Second. — "If the approval of the justice does not legalize the 
payment by the Treasurer, does the additional approval by the 
district attorney so legalize?" 

By St. 1896, c. 302, it is provided that "When a justice has 
reason to believe that an inquest to be held by him relates to the 
death by accident of a passenger or employee upon a railroad, or 
of a traveler upon a public or private way at a railroad crossing, 
or to a death by accident resulting from or connected with the 
operation of a street railway, he shall cause a verbatim report of 
the evidence given before him to be made. The accuracy of such 
report shall be sworn to by the person making the same, and the 
report and the reporter's bill for his services, after each has been 
examined and approved in writing by such justice, shall be for- 
warded without unnecessary delay to the board of railroad com- 
missioners. Bills for such services, when approved by the said 
board, shall be forwarded to the auditor of accounts, and shall 
be paid out of the treasury of the Commonwealth, and shall be 
assessed on the several corporations owning or operating the rail- 
roads or street railways on which the accidents occurred, and shall 
be collected in the manner provided in section twelve of chapter one 
hundred and twelve of the Public Statutes." 

A similar provision was first enacted as to railroad companies by 
St. 1888, c. 365 ; and afterwards as to street railway companies 
by St. 1889, c. 154. These two statutes are consolidated in St. 
1896, c. 302, above quoted. It is clear that as to such inquests a 
bill for the stenographic report of inquests is payable by the State 
Treasurer, when duly approved by the justice, and afterwards by 
the Board of Railroad Commissioners. 

St. 1898, c. 548, §§ 304-310, provide for inquests into the con- 
duct of elections in certain cases. In such cases § 307 authorizes 
the justice to employ a stenographer whenever he deems it neces- 
sary. Presumably the stenographer's bill in such cases is payable 
from the county treasury. 

There is no other statute authorizing the employment of a stenog- 
rapher by a justice holding an inquest ; and the inference is very 
strong that where the statute does not specially authorize such 
employment the justice has no right to have the testimony taken 
at the expense of the county. If the general authority confided to 
him to conduct inquests included the power of employing a stenog- 
rapher, there would be no occasion for the statutes above referred 
to. Moreover, excepting as required by the district attorney 
for his use in conducting criminal prosecutions, there is no more 



1900.] PUBLIC DOCUMENT — No. 12. 101 

occasion for the employment of a stenographer in an inquest than 
in any other trial before the justice. 

I am of opinion, therefore, that a justice holding an inquest, 
excepting in cases where it is expressly authorized by statute, has 
no power to authorize the employment of a stonographer at the 
expense of the county. 

It is otherwise with district attorneys. The duties of those 
officers are general in their nature, and may be said to comprise 
whatever in their discretion they may deem necessary for the 
prosecution of crime and the conviction of the criminal. It is 
often of the utmost importance, in cases of homicide, that the 
testimony before the justice at the inquest be accurately reported 
and preserved for future use. One of the principal purposes, 
indeed, of such inquests is to obtain evidence bearing upon the 
question of the homicide, and to secure and preserve the state- 
ments of persons who may be familiar with the circumstances, 
particularly of those who by reason of their interest in the 
defendant may later be unwilling to furnish evidence against 
him. No statute expressly authorizes the incurring of such ex- 
penses ; but it would be, in my judgment, a serious impairment 
of the usefulness of a district attorney to require him to find a 
definite statutory authority for every expense necessarily incurred 
by him in prosecuting criminals and punishing crime. He is the 
direct representative of the people, and is responsible to them for 
the efficient performance of his duty to prosecute and convict per- 
sons guilty of offences against the law. It has certainly been the 
constant practice of district attorneys to employ stenographers to 
take testimony in inquests, and have the same written out for their 
use ; and the assistance afforded by the testimony produced at the 
inquest has in many cases been of great value to the prosecution. 

I am of opinion, therefore, that in his discretion the district 
attorney may direct that the testimony taken at an inquest where 
crime is suspected be taken stenographically, and written out for 
his use in the subsequent conduct of the case. 

I do not deem it necessary to rely for this authority upon the 
provisions of Pub. Sts., c. 217, § 4, the language of which is: 
*' All legal costs and expenses arising in criminal prosecutions, 
including the fees of grand and traverse jurors for travel and 
attendance therein, unless paid by the party prosecuted, shall be 
paid by the respective counties in which they occur." I am not 
at all sure that the fair construction of this language would in- 
clude the expense in question. I prefer to rest my conclusions 
upon the general powers of district attorneys as above stated. 
Yours very truly, 

HosEA M. Knowlton, Attorney -General, 



102 ATTOKNEY-GENERAL'S REPORT. [Jan. 



Medical Examiner — Bond — Condition. 

The bond of a medical examiner must be conditioned upon the " faithful 
performance of his duties." 

Dec. 20, 1899. 

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

Dear Sir: — Pub. Sts., c. ^^^ § 5, provides that a medical ex- 
aminer, before entering upon the duties of his office, shall " give a 
bond with sureties to the treasurer of the county, in the sum of five 
thousand dollars, for the faithful performance of such duties." It 
is not possible to misunderstand or misconstrue this provision. 
The condition of the bond must be the faithful performance of the 
duties of the office of medical examiner. I am of opinion that 
you should not accept any other form of condition. See 1 Op. 
Atty.-Gen. 229. 

'The form of a fidelity company bond, referred to in your letter, 
is not in compliance with the statute. 
Very truly yours, 

HosEA M. Knoavlton, Attorney -General. 



Savings Banks — Authorized Investments — Net Indebtedness of 

Counties. 

The net indebtedness of a county is not defined in St. 1894, c. 317, § 21, 
par. 2, cl. /, but, in accordance with the ordinary construction of the 
term, in computing the net indebtedness of a county sinliing funds 
available for the payment of such indebtedness are to be deducted. 

Dec. 21, 1899. 
Hon. Starkes Whiton, 

Chairman, Board of Savings Banks Commissioners. 

Dear Sir: — Your letter of November 29 requires the opinion 

of the Attorney-General upon the proper construction of St. 1894, 

c. 317, § 21, par. 2, cl. /, the language of which is as follows: 

" The term ' net indebtedness ' in this statute shall be construed to 

denote the indebtedness of any city, town or district, omitting debt 

created for supplying the inhabitants with water, and deducting 

the amount of sinking funds available for the payment of such 

indebtedness." Paragraph 2, cl. d, of the same section authorizes 

savings banks to invest in the bonds or notes of any county in any 

of the New England States (excepting Massachusetts, as to which 

other provisions govern) whose net indebtedness does not exceed 

three per cent, of its valuation. The precise question raised by 

your letter is whether, under cl. c?, notwithstanding the omission 

of the word "county" from cl. /, the net indebtedness of a 



1900.] PUBLIC DOCUMENT — No. 12. 103 

county means the total indebtedness less sinking funds applicable 
to the payment of the same. 

Pub. Sts., c. 116, § 20, par. 2, permitted savings banks to in- 
vest their funds in " the bonds or notes ... of any city of the 
states of Maine, New Hampshire, Vermont, Rhode Island and Con- 
necticut whose net indebtedness does not exceed five per cent. . . . 
or of any county or town thereof whose net indebtedness does not 
exceed three per cent." This chapter contains no definition of the 
term " net indebtedness." By St. 1883, c. 127, it was provided 
that " The term ' net indebtedness,' used of city, town or district 
in any statute limiting or regulating the investment of sinking, 
trust and other funds of the Commonwealth, the deposits in savings 
banks and trust companies or other like funds shall be construed 
to denote the indebtedness of such city, town or district omitting 
debt created for supplying the inhabitants with water and deducting 
the amount of sinking funds available for the payment of such 
indebtedness." Whatever doubt may exist as to the determination 
of the question under consideration arises from the fact that the 
word " county" is not used in this statute ; for it is obvious that 
the word "district" is not equivalent to and does not include a 
county. It undoubtedly refers to portions of municipalities incor- 
porated for special purposes, like fire and water supply districts. 
St. 1894, c. 317, is a compilation of the existing statutes for the 
protection of savings banks ; and the statute of 1883, above quoted 
was incorporated in § 21, par. 2, cl. /. 

It is to be observed, however, that the language of the section 
incorporated into the act of 1894 is somewhat changed. The def- 
inition of " net indebtedness" in the act of 1883 was limited in 
terms to cases where that expression was used of " a city, town or 
district ;" whereas in the compilation the definition is applicable 
to all cases where the term is used in that statute. Inasmuch, 
however, as the net indebtedness of a county is mentioned in 
the statute of 1894, if cl. / refers to or includes such net 
indebtedness of a county, the literal reading of the clause 
would define the net indebtedness of a county to be " the in- 
debtedness of any city, town or district," etc. This is manifest 
absurdity. It is obviously necessary, therefore, to interpolate 
words to give to the paragraph meaning, so that it would read, 
"The term 'net indebtedness' in this statute [when used with 
reference to a city, town or district] shall be construed to denote," 
etc. If this be the correct construction of the section, it does 
not refer to the net indebtedness of counties. It thus appears 
that neither the statute of 1883 nor cl. /, where that statute is 
reenacted, is intended to refer to or define the net indebtedness of 
a county. 



104 ATTOKNEY-GENERAL'S REPORT. [Jan. 

Is there any significance in the omission of the word " county" 
from these statutes? In other words, did the Legislature intend 
that, while sinking funds applicable to the payment of debts should 
be deducted in the case of a city, town or district, they should not 
be so deducted in the case of a county? I have no hesitation in 
saying that I see no reason to suppose the Legislature so intended. 
The term " net indebtedness," as used in distinction from indebt- 
edness, necessarily means the whole indebtedness less funds on 
hand specially appropriated to the payment of such indebtedness. 
This is the popular and well-understood signification of the term. 

Why, then, was the statute of 1883 limited in terms to cities, 
towns and districts ? Clearly because the statute provided that, in 
computing the net indebtedness, debts incurred for the purposes 
of water supply were not to be reckoned. Cities, towns and dis- 
tricts may establish works for the supplying of their inhabitants 
with water, and borrow money therefor, even beyond the debt 
limit. Counties do not engage in the business of supplying water. 
The principal purpose, therefore, of the statute of 1883 was to 
provide that water debts should not be reckoned in the total net 
indebtedness ; and that part of the section which refers to the 
deduction of sinking funds is surplusage, unless it be supposed 
that the Legislature intended that, in computing the net indebted- 
ness of cities, towns and districts, water debts should be omitted 
on the one side, and sinking funds applicable to water debts should 
be omitted on the other side. 

Upon this construction of the statutes, and of the intention of 
the Legislature regarding the same, I have no difficulty in advis- 
ing you that, for the purpose of computing the net indebtedness 
of a county, sinking funds appropriated to the payment of said 
indebtedness are to be deducted. 
Yours very truly. 

Hose A M. Knowlton, Attorney- General. 



1900.] PUBLIC DOCUMENT — No. 12. 105 



Opinions upon Applications for Leave to file 
Informations in the N^ame op the Attorney- 
General. 



Attorney-General v. James E. Smith and Others. 

Information in Equity — Right to take Fish from the Sea — 
Attorney- General. 

The Attorney-General will not sign an information in equity for the 
enforcement of a penal statute. 

Nor will he sign one asking for an injunction restraining the owners of 

a steam fishing vessel from using seines and nets in talking fish in the 

vicinity of Nantucket ; for, if the right to take fish from the sea is 

common to all, it is without restriction as to the amount of fish taken 

and the methods employed. 

July 7, 1899. 

This was an application to the Attorney-General for the filing of 
an information by him against certain persons, owners of a steam 
fishing vessel, called the ''Petrel." The application charges, in 
substance, that the " Petrel," by the use of seines and sink nets, 
is rapidly exterminating the fish in the sea in the vicinity of Nan- 
tucket ; and asks for an injunction restraining them from the use 
of seines and nets for the purpose of taking fish. 

The information is certainly one of novel impression. There is 
a statute prohibiting the use of seines and nets for the purpose of 
taking fish in the waters adjacent to the Island of Nantucket. 
St. 1870, c. 284. If the information is based upon an alleged 
violation of this statute, it cannot be maintained. A bill in equity 
is not a suitable proceeding for the enforcement of penal statutes. 

See Attorney- General v. Selectmen of Wellesley, 1 Op. Atty.- 
Gen. 64.6, 647. 

Apparently, however, the information proceeds upon the propo- 
sition that the right of fishing is common to all citizens, and that, 
by reason of the methods employed by the respondents, there is 
danger that this right may be destroyed. Such right, however, if 
it exists, is without restriction as to the amount of fish taken and 
the methods employed. An information will not lie against these 
respondents because they are able to take more fish than other 



106 ATTORNEY-GENERAL'S REPORT. [Jan. 

citizens. If they were able to take all the fish that swam in the 
waters, they would still be in the exercise of the common right of 
all citizens. 

The use of the name of the Attorney-General is refused. 

HosEA M. Knowlton, Attorney-General. 

Franh M. Davis, for the petitioner. 



Attorney-General v. Charles P. Curtis, Jr. 

Public Officer — Police Commissioner of Boston — Quo Warranto 
— Attorney- General. 

When a public official, the legality of whose appointment is questioned, 
has served more than four-fifths of the term for which he was ap- 
pointed, the Attorney-General will not grant the use of his name to an 
information in the nature of a quo warranto against him, if no public 
rights are afiected by the official's continuance in office de facto. 

July 8, 1899. 

This was an application to the Attorney-General for the filing 
of an information against the respondent, alleging that he was 
unlawfully appointed to the oflSce of police commissioner, and that 
he still holds such office in violation of law. 

The statute authorizing the appointment of police commissioners 
(St. 1885, c. 323) provides that persons appointed police com- 
missioners of the city of Boston shall be " citizens of Boston, who 
shall have been residents therein two years immediately preceding 
the date of their appointment." 

It is said that the respondent had become a citizen of Boston 
about the time of or shortly before his appointment ; but I under- 
stand it to be conceded that he had not, for more than two years 
preceding that time, been a citizen of Boston, although he had 
resided in the city for a greater part of the time each year, his 
legal residence during the three years preceding his appointment 
being in Swampscott. 

He was appointed to the office of police commissioner April 23, 
1895, for a term of five years. He has since been a citizen of 
Boston, and is now, therefore, eligible for appointment to that 
office. 

The information is sought by a police officer, who was tried, 
without protest on his part, before the respondent as one of the 
police commissioners, found guilty, and sentenced to be reduced 
in rank from a sergeant to a patrolman. No objection was made 
by the police officer to the jurisdiction of the respondent until 
after adjudication adverse to him. 



1900.] PUBLIC DOCUMENT — No. 12. 107 

If an information like this had been applied for within a reason- 
able time after the appointment of the respondent, I should have 
felt it my duty to allow the use of the name of the Attorney- 
General, that the legality of the appointment might be determined 
in the courts of the Commonwealth. There is, at least, a doubt 
whether the respondent was originally eligible. Conceding him to 
have been a citizen of Boston at the time of his appointment, and 
that he had resided in Boston for the greater portion of the three 
years prior to his appointment, it is still doubtful whether the word 
" residence," in the statute, is not to be taken as synonomous with 
domicil. If so, the facts do not bring him within the terms of the 
statute. 

I do not deem it important, however, to consider this question, 
for I am of opinion, upon all the facts, that it is my duty, in the 
exercise of the discretion confided to the Attorney-General, to 
refuse the application. The respondent has served more than 
four-fifths of the term for which he was appointed. He is now 
eligible to appointment, and could be reappointed in case he were 
removed from office under a proceeding of this character. More- 
over, no public rights are affected by his continuance in the office 
de facto. The legality of his official acts cannot be inquired into 
collaterally. He is in office under color of right ; and, having 
served four years, without any attempt to question his authority 
during that time, I do not think the public interests require that 
the legality of his appointment — which, in view of all the circum- 
stances, has become little more than a moot question — should be 
brought in question now by a proceeding to which the Attorney- 
General is a party. The right to institute proceedings of this 
character, the exercise of which is confided to the discretion of the 
Attorney-General, is one which should be used only with a view 
to the public welfare. It is, indeed, important that all officers 
should be lawfully elected or appointed to the positions they hold ; 
and, if any doubt exists as to the legality of such election or ap- 
pointment, that such doubts should be promptly resolved. But 
such questions should be raised without undue delay. AYhile 
laches cannot be imputed to the public, or to its officer, the 
Attorney-General, the principles which govern the application of 
that rule to private individuals have much force when an application 
of this sort is brought so long after the act which it is attempted 
to draw in question ; and, unless some public right is affected, it is 
the duty of the Attorney-General to refuse an application which 
not only cannot serve any useful purpose, but is brought so near 
the end of the term of the office in question that it may not be 
determined finally until the term has expired. Commomoealth v. 
Allen, 128 Mass. 308. 



108 ATTORNEY-GENERAL'S REPORT. [Jan. 

These considerations have especial weight when the reason for 
the application is considered. The petitioner in this case seeks to 
impeach the title of a judge whose jurisdiction he did not challenge 
while he was on trial. He was apparently contented until the 
respondent decided against him. In similar cases in England, 
where an act of Parliament (St. 9 Anne, c. 20) authorized appli- 
cations to be made by private individuals to the court of King's 
Bench for an order directing the king's attorney to file an informa- 
tion, it has been frequently held that, when such applications were 
made by persons who had not objected to the regularity of the 
proceedings complained of until after defeat, the application would 
be denied. Rex v. Dawes, 4 Burrows, 2122. King v. Parkyn, 1 
Barnewall & Adolphus, 652. To the same effect is Dorsey v. 
Anslie, 1-2 Ga. 460; People v. Waite, 70 111. 25. 

I am clearly of the opinion that the petitioner has not shown that 
the interests of the public require the filing of this information ; and 
the name of the Attorney-General is accordingly refused. 

Hose A M. Knowlton, Attorney -Genei'al. 

William E. Cassidy, for the petitioner. 
Solomon Lincoln, for the respondent. 



1900.] PUBLIC DOCUMENT — No. 12. 109 



INFORMATIONS. 



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

(a) For the non-payment of corporation taxes for the year 
1898, informations were brought against the — 

A. M. Niles Shoe Company. Enjoined. 

A. S. Dexter & Co., Incorporated. Tax paid and information 

dismissed. 

Alexander Hill Bedding Company. Tax paid and information 
dismissed. 

Austin & Winslow Gallagher Company. Tax paid and informa- 
tion dismissed. 

B. F. Lewis & Son Company. Tax paid and information dis- 

missed. 

Bates Machine Company. Enjoined. 

Bay State Metal Works. Tax paid and information dismissed. 

Bay State Steamship Company. Enjoined. 

Berkshire Spar and Quartz Company. Tax paid and information 
dismissed. 

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

Boston Advertising Company. Tax paid and information dis- 
missed. 

Boston Traveller Company. Tax paid and information dismissed. 

Brookfield Brick Company. Tax paid and information dismissed. 

Cambridge Co-operative Society. Tax paid and information dis- 
missed. 

Cameron's Pharmacy. Tax paid and information dismissed. 

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

Charles A. Millen Company. Tax paid and information dis- 
missed. 

Chicopee Gas Light Company. Tax paid and information dis- 
missed. 

Coates Clipper Manufacturing Company. Tax paid and informa- 
tion dismissed. 



no ATTORNEY-GENERAL'S REPORT. [Jan. 

Coburn Stationery Company. Tax paid and information dis- 
missed. 

Consolidated Refrigerating Company. Tax paid and information 
dismissed. 

Co-operative Printing Society. Tax paid and information dis- 
missed. 

Cyclopaedia Publishing Company. Tax paid and information 
dismissed. 

Damon Brick Company. Tax paid and information dismissed. 

E. H. Saxton Company. Tax paid and information dismissed. 
Evening Gazette Company. Tax paid and information dismissed. 

F. P. Norton Cigar Company. Tax paid and information dis- 

missed. 

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

George P. Staples & Co., Incorporated. Tax paid and informa- 
tion dismissed. 

Grove Hall Hardware Company. Enjoined. 

Harcourt Paper Box Company. Tax paid and information dis- 
missed. 

Hardy Company. Enjoined. 

Higgins & Gifford Boat Manufacturing Company. Tax paid and 
information dismissed. 

Highland Foundry Company. Tax paid and information dis- 
missed. 

Home Guaranty Mutual Insurance Company. Tax paid and 
information dismissed. 

Horace Partridge Company. Enjoined. 

Investment Corporation. Tax paid and information dismissed. 

Kimball Brothers Company. Tax paid and information dismissed. 

L. E. Fletcher Company. Tax paid and information dismissed. 

Lexington Gas Light Company. Tax paid and information dis- 
missed. 

Lockfast Hook Company. Enjoined. 

Low Art Tile Company. Tax paid and information dismissed. 

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

M. A. Swift Sons, Incorporated. Tax paid and information 
dismissed. 

M. D. Stebbins Manufacturing Company. Enjoined. 

Mansfield Baking Company. Enjoined. 

Merrill Piano Company. Tax paid and information dismissed^ 



1900.] PUBLIC DOCUMENT — No. 12. Ill 

New England Reed Company. Tax paid and information dis- 
missed. 

O. D. Pillsbury Company. Tax paid and information dismissed. 

Phoenix Hall Company. Enjoined 

Pierce Construction Company. Enjoined. 

Puncturoid Manufacturing Company. Enjoined. 

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

Richard Manufacturing Company. Tax paid and information 
dismissed. 

Royal Millinery Company. Enjoined. 

Spring Lane Press. Tax paid and information dismissed. 

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

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

Tremont Publishing Company. Enjoined. 

Union Telephone and Telegraph Company of Massachusetts. 
Pending. 

Wade & Reed Company. Tax paid and information dismissed. 

Walter S. Cushing Company. Enjoined. 

Wellington Furniture Company. Tax paid and information dis- 
missed. 

Wellington Sash Lock Company. Enjoined. 

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

White- Wilbar Shoe Company. Tax paid and information dis- 
missed. 

William H. King Sons Company. Tax paid and information 
dismissed. 

Williams Table and Lumber Company. Tax paid and information 
dismissed. 

Woodward & Brown Piano Company. Tax paid and information 
dismissed. 

(b) For failure to file the tax return for the year 1899, re- 
quired by section 38 of chapter 13 of the Public Statutes, informa- 
tions were brought against the — 

A. W. Bryne Construction Company. Enjoined. 

Abbotts Menthol Plaster Company. Return filed and information 

dismissed. 
Alexander Hill Bedding Company. Pending. 



112 ATTORNEY-GENERAL'S REPORT. [Jan. 

Bates Macbiue Company, The. Enjoined on tax suit. 

Bay State Securit}^ Company. Pending. 

Boston Hansom Cab Company, The. Enjoined. 

Boston Transit Company. Return filed and information dis- 
missed. 

Brookfield Brick Company. Return filed and information dis- 
missed. 

C. L. Smith Company, The. Pending. ^ 

Cameron's Pharmac3^ Enjoined. 

Columbia Manufacturing Company. Pending. 

Damon Safe and Iron Works Company. Return filed and infor- 
mation dismissed. 

F. P. Norton Cigar Company. Return filed and information dis- 
missed. 

Fall River Burial Company. Return filed and information dis- 
missed. 

Fore River Company. Pending. 

Franklin Educational Company. Return filed and information 
dismissed. 

George Woodman Company, The. Return filed and information 
dismissed. 

H. W. Durgin Company. Enjoined. 

Hardy Company. Enjoined on tax suit. 

J. R. Robinson Company. Pending. 

John F. Bingham Company. Return filed and information dis- 
missed. 

Leominster Shirt Company. Return filed and information dis- 
missed. 

M. D. Stebbins Manufacturing Company. Return filed and in- 
formation dismissed. 

Maiden Mail Company, The. Return filed and information dis- 
missed. 

Maiden Stock Laundry Company, The. Pending. 

Nute-Hallett Company, Incorporated, The. Return filed and 
information dismissed. 

Peoples Baggage Transfer Express Company. Enjoined. 

Pierce Construction Company. Enjoined on tax suit. 

Quaboag Steamboat Company, The. Enjoined. 

Rockland Factory Building Association. Return filed and infor- 
mation dismissed. 

Rockland Hotel Company, The. Return filed and information 
dismissed. 

Royal Millinery Company. Enjoined on tax suit. 



1900.] PUBLIC DOCUMENT — No. 12. 113 

Spring Laoe Press. Enjoined. 

Springfield Co-operative Association, The. Enjoined. 

St. Regis Leather Company, The. Return filed and information 
dismissed. 

Standard Furniture Company, The. Return filed and information 
dismissed. 

Standard Horse Shoe Company. Return filed and information 
dismissed. 

Waltham Music Hall Company. Enjoined. 

Waltham Publishing Company. Return filed and information 
dismissed. 

Wellington Sash Lock Company. Enjoined on tax suit. 

Westport Wooden Ware Company, The. Enjoined. 

William H. King Sons Company. Enjoined. 

Woodward & Brown Piano Company. Return filed and informa- 
tion dismissed. 

2. At the Relation of the Commissioner of Corporations. 
For failure to file the certificate of condition required by section 
54 of chapter lOG of the Public Statutes — 

Amesbury Opera House Company. Pending. 

Arlantic Box Manufacturing Company. Pending. 

Boston Advertising Company. Certificate filed and information 

dismissed. 
Co-operative Printing Society. Certificate filed and information 

dismissed. 
Dudley Mills. Pending. 
Evening Gazette Company. Certificate filed and information 

dismissed. 
Fisher-Churchill Company, The. Pending. 
Foxborough Foundry and Machine Company. Pending. 
Franklin Educational Company. Pending. 
Globe Foundry Company, The. Pending. 
Hampden Watch Company. Pending. 
Hardy Company. Enjoined on tax return suit. 
Household Novelty Manufacturing Company, The. Pending. 
Knights of Labor Co-operative Boot and Shoe Association. 

Pending. 
M. D. Stebbins Manufacturing Company. Enjoined on tax 

return suit. 
Peoples Baggage Transfer Express Company. Enjoined on tax 

return suit. 



114 ATTORNEY-GENERAL'S REPORT. [Jan. 

Pierce Coustriiction Company. Enjoined on tax return suit. 

P. P. Emory Manufacturing Company. Certificate filed and in- 
formation dismissed. 

Qaaboag Steamboat Company. Enjoined on tax return suit. 

Spring Lane Press. Enjoined on tax return suit. 

Springfield Co-operative Association, The. Enjoined on tax 
return suit. 

Suspension Transportation Company. Return filed and informa- 
tion dismissed. 

Taunton Evening News. Pending. 

W. C. Young Manufacturing Company. Certificate filed and 
information dismissed. 

Xylite Lubricating Company. Pending. 

3. At the Relation of Private Persons. 

Attorney-General ex rel. v. Vineyard Grove CoQipany. 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. Henry S. Dewey appointed master. 
Pending. 

Attorney-General ex rel. Samuel E. Hull et als.^ Selectmen of 
Millbury, v. Washburn & Moen Manufacturing Company. 
Information in the nature of quo ivanxinto to abate a nuisance. 
Hearing. 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. Use of name granted. Dismissed by 
agreement of parties. 

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. Use of name granted. Decree for- 
feiting charter. 

Attorney-General v. Henry Bigelow Williams et als. Information 
to restrain the defendants from erecting Westminster Cham- 
bers, near Copley Square, Boston, above the height allowed 
by St. 1898, c. 542. Use of name granted. Defendants- 
demurred. Demurrer overruled. Reported in 55 N. E. 
Rep. 77. 



1900.] PUBLIC DOCUMENT — No. 12. 115 

Attorney-General v. Onset Bay Grove Association. Information 
in the nature of quo imrranto to abate a public nuisance. 
Use of name granted. Pending. 

Attorney-General v. William E. Oliver. Information in the nature 
of quo imrranto to try the respondent's title to the office of 
constable of the town of Avon. Hearing. Use of name 
granted. Petition dismissed. 

Applications refused and Otherwise disposed of. 
[For full text of opinions, giving reasons for refusal, see page 105.] 

Attorney-General v. Charles P. Curtis, Jr. Petition in the nature 
of quo warranto to try the respondent's title to the office of 
police commissioner of the city of Boston. Hearing. Use 
of name denied. 

Attorney-General v. James Everett et al. Petition for writ of 
injunction to restrain the respondents from fishing off the 
shores of Nantucket. Hearing. Use of name denied. 

Attorney-General v. Worcester & Webster Street Railway Com- 
pany. Bill in equity for forfeiture of charter. Hearing. 
Use of name denied. 

Attorney-General ex rel. v. Charles H. Davenport et ah. Petition 
for a writ of mandamus to compel respondents to reinstate a 
high school in South Hadley. 

Attorney- General v. Josiah F. Barrett. Petition for writ of man- 
damus to compel respondent to appoint a special sheriff. 



116 ATTORNEY-GENERAL'S REPORT. [Jan. 



GEADE CKOSSINGS. 



Notices have been served upon this department of the filing of 
the following petitions for the appointment of special commission- 
ers, 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. 

BerJcsJiire County. 

Pittsfield. Mayor and Aldermen of and Directors of Boston & 
Albany Railroad Company, petitioners. Petition for the 
abolition of Hubbard and Gates avenues and Jason Street in 
Pittsfield. Pending. 

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

West Stockbridge. New York, New Haven & Hartford Railroad 
Company, Directors of, petitioners. Petition for the aboli- 
tion of grade crossings over the West Stockbridge Railroad 
Corporation in West Stockbridge. Pending. 

West Stockbridge. Directors of the Boston & Albany Railroad, 
petitioners. Commissioners appointed. Pending. 

West Stockbridge. New York, New Haven &: Hartford Railroad 
Company, Directors of, petitioners. Petition for the abolition 
of " Potters Crossing, alias " Ty mesons Crossing," in West 
Stockbridge. Pending. 

Williamstown, Town of, petitioner. Crossings over Fitchburg 
Railroad. Commissioners appointed. Pending. 

Bristol County. 

Attleborough. Directors of Old Colony Railroad Company, peti- 
tioners. Commissioners appointed. Pending. 

Dighton. New York, New Haven & Hartford Railroad, peti- 
tioner. Pending. 



1900.] PUBLIC DOCUMENT — No. 12. 117 

Easton. Directors of the New York, New Haven & Hartford 

Railroad Company, petitioners. Pending. 
Fall River, Mayor and Aldermen of city of, petitioners. Two 

petitions consolidated. New York, New Haven & Hartford 

Railroad Company. Pending. 
New Bedford, Mayor and Aldermen of city of, petitioners. Old 

Colony Railroad and New York, New Haven & Hartford 

Railroad. Pending. 
Norton. Directors of Old Colony Railroad Company, petitioners. 

Petition for abolition of grade crossing in Norton, near 

Norton Furnace station. Pending. 
Somerset. New York, New Haven & Hartford Railroad, peti- 
tioner. Pending. 
Taunton, Mayor and Aldermen of, petitioners. Petition for the 

abolition of grade crossings across Dean, Winter, West, 

Britania and Freemont streets and Crane Avenue in Taunton. 

Pending. 
Taunton, Mayor and Aldermen of city of, petitioners. Old 

Colony Railroad. Pending. 

Essex County. 

Beverly. Directors of the Boston & Maine Railroad, petitioners. 
Pending. 

Haverhill, Mayor and Aldermen of, petitioners. Petition for the 
abolition of AVashington, Essex and Winter streets crossings 
in Haverhill. Pending. 

Ipswich. Boston & Maine Railroad Company, petitioners. Pend- 
ing. 

Manchester. Directors of the Boston & Maine Railroad Company, 
petitioners. Pending. 

Salisbury, Directors of Boston & Maine Railroad Company, peti- 
tioners. Petition for abolition of Hoks and Gerrish crossing. 
Pending. 

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

Franklin County. 
Montague. Selectmen of the town of Montague, petitioners. 

Central Vermont Railroad Company and Fitchburg Railroad 

Company. Pending. 
Northfield, Selectmen of, petitioners. Petition for the abolition of 

a grade crossing over the Connecticut River Railroad and 

Central Vermont Railroad at River Street. Pending. 



118 ATTORNEY-GENERAL'S REPORT. [Jan. 

Hampden County. 

Chester, Selectmen of, petitioners. Petition for abolition of 
"Huntington Road." Commissioners appointed. Pending. 

Chicopee, Mayor and Aldermen of, petitioners. Crossings over 
Connecticut River Railroad. Commissioners appointed. 
Pending. 

Chicopee, Mayor and Aldermen of, petitioners. Petition for the 
abolition of grade crossings over the Connecticut River Rail- 
road. Pending. 

East Longmeadow. Selectmen of East Lougmeadow, petitioners. 
Pending. 

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

Palmer. Blanchard's, Tenney's and Breckenridge's crossings. 
Boston & Albany Railroad Company, petitioners. Pending. 

Palmer, Selectmen of, petitioners. Pending. 

Palmer, Selectmen of, petitioners. Petition for the abolition of 
Burley's crossing in Palmer. Pending. 

Palmer. Boston & Albany Railroad Company, petitioners. 
Cooley's crossing. Pending. 

Springfield, Mayor and Aldermen of, petitioners. Bay Street, 
Boston Road, Wilbraham Road, Alden and Hickory streets, 
crossing the New York & New England Railroad. Commis- 
sioners appointed. Pending. 

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

Springfield, Armory Street. Mayor and Aldermen of Springfield, 
petitioners. Pending. 

Springfield, Pasco Road. Mayor and Aldermen of Springfield, 
petitioners. Pending. 

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

Westfield. Selectmen of the town of Westfield, North Elm Street. 
Pending. 

Westfield. Boston & Albany Railroad, petitioner. Cobwin and 
Morse's crossing. Commissioners appointed. Pending. 

Westfield. Selectmen of the town of Westfield, petitioners. Pend- 
ing. 
(North) Wilbraham. Depot. Boston & Albany Railroad Com- 
pany, petitioners. Pending. 



1900.] PUBLIC DOCUiMENT — No. 12. 119 

Hampshire County. 

Belchertown, Town of, petitioner. Crossings over Central Massa- 
chusetts and New London Northern Railroad. Commissioners 
appointed. Final report of auditor filed. Pending. 

Hadley, Selectmen of, petitioners. Flaherty's crossing. Pending. 

Hatfield, Selectmen of town of, petitioners. Connecticut River. 
Railroad Company and Boston & Maine Railroad Company. 
Pending. 

Ware. Selectmen of the town of Ware, petitioners. Commis- 
sioners appointed. Pending. 

Ware, Selectmen of, petitioners. Commissioners appointed. 

Pending. 

Middlesex County. 

Arlington. Selectmen of the town of Arlington, petitioners. 
Pending. 

Ashland. Directors of Boston & Albany Railroad Company, 
petitioners. Commissioners appointed. 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 
Boston & Maine Railroad, petitioner. Pending. 

Concord. Selectmen of the town of Concord and Directors of the 
Fitchburg Railroad Company, petitioners. Pending. 

Everett. Directors of Boston & Maine Railroad Company, peti- 
tioners. Petition for abolition of Broadway and Main Street 
crossings in Everett. Pending. 

Lexington. Selectmen of, petitioners. Petition for abolition of 
Grant Street crossing in Lexington. Pending. 

Lincoln. Fitchburg Railroad, petitioner. Pending. 

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

Maiden. Directors of Boston & Maine Railroad Company, peti- 
tioners. Petition of Medford, Adams and Charles streets 
grade crossing in Maiden. Pending. 

Marlborough. Mayor and Aldermen of the city of Marlborough, 
petitioners. Fitchburg Railroad Company. Pending. 

Marlborough. Old Colony Railroad, petitioner. Fisher's cross- 
ing. Pending. 

Natick. Directors of Boston & Albany Railroad, petitioners. 
Three petitions. Pending. 

Newton, Mayor and Aldermen of city of, petitioners. Boston & 
Albany Railroad. Argued before full court. Decision made 
on accounting, Sept. 1, 1898. Pending. 



120 ATTORNEY-GENERAL'S REPORT. [Jan. 

Somerville, Mayor and Aldermen of, petitioners. Petition for the 
abolition of Somerville Avenue grade crossing in Somerville. 
Pending. 

Somerville, Mayor and Aldermen of, petitioners. Pending. 

Somerville, Mayor and Aldermen of, petitioners. Petition for the 
abolition of Park, Dane and Medford streets grade crossings 
in Somerville. Pending. 

Wakefield, Selectmen of, petitioners. Petition for the abolition 
of Hanson Street grade crossing in Wakefield. Pending. 

Waltham. Mayor and Aldermen of the city of Waltham, peti- 
tioners. Fitchburg Railroad Company. Pending. 

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

Norfolk County. 

Braintree. Directors of New York, New Haven & Hartford Rail- 
road, petitioners. Pending. 

Braintree. Directors of the New York, New Haven & Hartford 
Railroad Company, petitioners. Pending. 

Canton. Selectmen of the town of Canton, petitioners. Pending. 

Dedham, Selectmen of the town of Dedham, petitioners. Pending. 

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

Foxborough, Selectmen of, petitioners. Petition for the abolition 
of North Street crossing in Foxborough. Pending. 

Hyde Park and Dedham. Three petitions consolidated. Pending. 

Medway. Selectmen of the town of Medway, petitioners. Pending. 

Milton, Selectmen of, petitioners. Petition for abolition of Cen- 
tral Avenue crossing. Pending. 

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

Stoughton. Directors of the New York, New Haven & Hartford 
Railroad Company, petitioners. Pending. 

Plymouth County. 

Abington. Directors of the New York, New Haven & Hartford 
Railroad Company, petitioners. Pending. 

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

Hingham. New York, New Haven & Hartford Railroad Com- 
pany, petitioner. Pending. 

Marshfield. Directors of New York, New Haven & Hartford 
Railroad, petitioners. Pending. 



1900.] PUBLIC DOCUMENT — No. 12. 121 

Middleborough. Selectmen of the town of Micldleborough, peti- 
tioners. Pending. 

Scituate. New York, New Haven & Hartford Railroad Company, 
directors, petitioners. Petition for the alteration of grade 
crossings at Water and Union streets. Pending. 

Scitnate. Selectmen of Scituate, petitioners. Pending. 

Suffolk County. 
Boston. Directors of Old Colony Railroad Company, petitioners. 

Tremont Street. Hearing. Pending. 
Boston. Mayor and Aldermen of, petitioners. Six petitions : — 

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

ing the tracks of the Boston & Maine Railroad. Pending. 

2. Same streets as above, crossing the tracks of the Eastern 

Railroad Company. Pending. 

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

Charlestown, crossing the tracks of the Fitchburg Rail- 
road Company. Pending. 

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

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

5. Congress Street, South Boston, crossing the tracks of the 

New York & New England Railroad Company. Pending. 

6. Dorchester Avemie, Dorchester, crossing the tracks of the 

Old Colony Railroad Company. Pending. 

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

Boston. Mayor and Aldermen of Boston, petitioners. New Eng- 
land Railroad Company. Pending. 

Boston. Mayor and Aldermen of Boston, petitioners. Pending. 

Boston. Mayor and Aldermen of Boston, petitioners. 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. 

Chelsea, Maj^or 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. 

Revere, Selectmen of, petitioners. Petition for abolition of Win- 
throp Avenue crossing in Revere. Pending. 



122 ATTORNEY-GENERAL'S REPORT. [Jan. 

Worcester County. 

Athol, Selectmen of, petitioners. Commissioners appointed. 
Pending. 

Anburn. Selectmen of Auburn, petitioners. Pending. 

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

Blackstone. Selectmen of Blackstone, petitioners. Pending. 

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

Clinton, Selectmen of, petitioners. Pending. 

Fitchburg, Mayor and Aldermen of, petitioners. Same as above, 
over Laurel Street. Pending. 

Fitchburg, Mayor and Aldermen of, petitioners. Petition for the 
abolition of grade crossings at Putnam Street in Fitchburg 
over the Vermont Central Railroad and Massachusetts Central 
Railroad. Pendiug. 

Fitchburg, Maj^or and Aldermen of, petitioners. Pending. 

Gardner. Selectmen of Gardner, petitioners. Commissioners 
appointed. Pendiug. 

Gardner. Selectmen of the town of Gardner, petitioners. Pend- 
iug. 

Gardner, Selectmen of, petitioners. Petition for change of grade 
at Union Street crossing in Gardner. Pending. 

Holden. Selectmen of Holden, petitioners. Fitchburg Railroad 
Company. Pending. 

Leicester. Directors of Boston & Albany Railroad Company, 
petitioners. Pending. 

Leominster. Selectmen of the town of Leominster, petitioners. 
Pendiug. 

Millbury. Selectmen of the town of Millbury, petitioners. Pend- 
ing. 

Milibury, Selectmen of, petitioners. Pending. 

Northbridge. Selectmen of Northbridge and Uxbridge, petition- 
ers. Pending. 

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

Northborough, Selectmen of, petitioners. Petition for the aboli- 
tion of a grade crossing near " Westborough Hospital Sta- 
tion." Pending. 

Southborough. Old Colony Railroad Company, petitioner. Pend- 
ing. 

Southborough, Selectmen of, petitioners. Petition for the aboli- 
tion of grade crossing on road to Hopkinton in Southborough. 
Pending. 



1900.] PUBLIC DOCUMENT — No. 12. 123 

Southborongh. Selectmen of Soutbborough and Directors of New 
York, New Haven & Hartford Railroad Company, petitioners. 
Pending. 

Southborongh. Directors of the New York, New Haven & Hart- 
ford Railroad Company, petitioners. Pending. 

Sutton. Selectmen of the town of Sutton, petitioners. Pending. 

Templeton, 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. 

Warren. Directors of the Boston & Albany Railroad, petitioners. 
Pending. 

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

Westborough. Selectmen of Westborough and Directors of Bos- 
ton & Albany Raih'oad 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. 
Report of commissioners confirmed. Pending. 

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

Worcester. Directors of Boston & Albany Railroad Company, 
petitioners. Pending. 

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

Worcester, Mayor and Aldermen of, petitioners. Hamilton and 
Millbrook streets. Peudino-. 

o 

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

A. M. Richards Company. 

Albertson Marble Company. 

American Dye Stuff and Chemical Company. 

Bay State Iron Company. 



124 ATTORNEY-GENERAL'S REPORT. [Jan, 

Bay State Motor Company. 

Bay State Worsted Company. 

Boit Knitting Company. 

Boston & Provincetown Steamship Company. 

Boston Music Hall Association. 

Brackett Manufacturing Company. 

Bruce-Mabon Company. 

Butterfield Printing and Binding Company. 

C. A. Cunningham Company. 

Cambridge Co-operative Drug Company. 

Chipman-Pratt Company. 

City Mills Company. 

Dedham Pottery Company. 

Electric Cigar Company. 

Equitable Marine Insurance Company. 

F. M. Blanchard Shoe Company. 

Fall River Spool and Bobbin Company. 

Family Messenger Company. 

Franklin Cotton Manufacturing Company. 

George E. Barnard Company. 

H. G. Jordan & Co., Incorporated. 

Hampshire Granite Company. 

H. H. Guinan Clothing Company. 

Haverhill Paper Company. 

Jameson & Knowles Company. 

J. S. Carr Company. 

London Harness and Saddle Company. 

Lincoln Wharf Company. 

Massachusetts Fan Company. 

Massachusetts Glove Manufacturing Company. 

Milford Pink Granite Company. 

Munroe Meat Company. 

National Box and Lumber Company. 

New England Burglary Insurance Company. 

O. D. Pillsbury Company. 

Orange Water Works. 

Rays Woolen Company. 

Rogers- Young Company. 

Russell Paper Company. 

Salisbury Beach Plank Road Company. 

Springfield Envelope Company. 

Star Blanket Manufacturing Company. 

Transcript Job Print. 



1900.] PUBLIC DOCUMENT — No. 12. 125 

Turner's Falls Shoe Company. 

United States Tabular Boiler Company. 

Victor Manufacturing Company. 

Waite Felting Compan}^ 

Warren Cotton Mills. 

Warwick Shoe Company. 

Wellfleet Marine Insurance Company. 

Westfield Gas Light Company. 

Whitcomb Envelope Company. 

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 : — 

A. G. Moore Company, The. 
Amesbury & Salisbury Gas Company. 
Amesbury Building Corporation, The. 
Amesbury Opera House Company, The. 

B. F. Lewis & Co., The. 

Baush & Harris Machine Tool Company, The. 

Bay State Bottling Company. 

Bay State Manufacturing Company. 

Beacon Manufacturing Company. 

Biddle & Smart Company, The. 

Blake Manufacturing Company. 

Boston Amusement Company. 

Boston Co-operative Press. 

Boston Paving Company. 

Boston Printing Company. 

Boston Time Table Company, The. 

Boston Traveller Company, The. 

Braintree Wood and Lumber Company. 

C. A. Bray Company, The. 

C. A. Edgarton Manufacturing Company, The. 

C. B. Cook Laundry Compan3^ 

Cambridge Co-operative Society. 

Caton Medical Specific Company. 

Charles A. Milieu Company. 

Charles River Embankment Company. 

Chase Woolen Company. 

Chelsea Express Despatch Compan}^ 

Chicopee Falls Wheel Company, The. 



126 ATTORNEY-GENERAL'S REPORT. [Jan. 

Chilcls & Kent Express Company. 
Coates Clipper Mannfacturing Company. 
Cochrane Manufacturing Company. 
Columbia Electric Company, The. 
Concord School Company. 
Co-operative Printing Society. 
Copeland, Eldridge & Co., Incorporated. 
Cottage City Gas and Electric Light Company, The. 
Cunningham Lumber Compan3^ 
Curtis Manufacturing Company. 
E. A. Drowne Company. 
E. P. Sanderson Company. 

Equity Co-operative Boot and Shoe Manufacturing Com- 
pany. 
Eureka Ruling and Binding Company. 
Fall River Merino Company, The. 
Fisher Churchill Company, The. 
Framingham Rattan Company, The. 
G. A. Gane Shirt Company, The. 
Gardner Egg Carrier Company. 
Gardner Gas Fuel and Light Company. 
George P. Staples & Co., Incorporated. 
Gilman Snow Guard Company. 
Glasgow Manufacturing Company. 
Globe Nail Company. 
Graham Shoe Company. 
Halford Sauce Company. 
Hampden Trap Rock Company. 
Harvard Stamping and Plating Company. 
Haverhill Ice Company. 
Haverhill Milling Company, The. 
Holliston Water Company. 

Hoosac Tunnel & Wilmington Railroad Company. 
Hunt-Spiller Manufacturing Company, The. 
Hurlburt Stationery Company. 
Hutchins Narrow Fabric Company. 
Hyde Park Co-operative Association, The. 
Ionic Knitting Company, The. 
J. Maddock Company, The. 
Jewett Lumber Company. 
Kelly Shoe Company, The. 
Kimball & Cary Company. 



1900.] PUBLIC DOCUMENT — No. 12. 127 

Knights of Labor Co-operative Boot and Shoe Associa- 
tion, The. 
Knowles Freeman Fish Company. 
Lakeside Manufacturing Company. 
Lamprey Boiler Furnace Mouth Protector Company. 
Lapham Woolen Company. 
Libert}^ INIasonic Association. 
Linscott & Patten Cycle Company. 
Lynn News Publishing Company. 
Lyons & Alexander Company, The. 
M. A. Swift's Sons, Incorporated 
Mansfield Baking Company. 
Marblehead Building Association. 
Marblehead Water Company. 
Marlboro Gas Light Company. 
Massachusetts Real Estate Company. 
Medfield Electric Light and Power Company. 
Morgan Company, The. 
Murray Brothers Company. 
Mutual Ice Compan3\ 
Natick Citizen Printing Company. 
New England Dredging Company. 
New England Laundry Company. 
Norfolk Telephone Company. 
Norfolk Western Street Railway Company. 
North Andover Mills. 
North Carolina Mica Company. 
Peoples Lumber and Manufacturing Company. 
Phoenix Hall Company. 
Pilgrim Iron Foundry Company. 
Pittsfield Manufacturing Company, The. 
Plymouth Rubber Company. 
Plymouth Stove Foundry Company, The. 
R. A. Day Company. 
Richard Manufacturing Company. 
Salem and South Danvers Oil Company. 
Sandy Bay Pier Company. 
Shady Hill Nursery Company. 
Shedd & Crane Leather Company. 
Simpson Brothers Corporation. 
Smith & Gardner Supply Company. 
Springfield Construction Company, The. 



128 ATTORNEY-GENERAL'S REPORT. [Jan. 

Springfield Machine Screw Company, The. 

Springfield Steam Power Company. 

Standard Brass Company. 

Standard Brick Compan}^ The. 

Sterling Worsted Company, The. 

Suffolk Brewing Company. 

T. B. Bailey Company, The. 

Taunton Evening News. 

Thomas G. Plant Company. 

Transcript Publishing Company, The. 

Traveller Publishing Company. 

Turner's Falls Lumber Company. 

Union Furniture Company. 

Union Manufacturing Company. 

Union Road Machinery Company. 

Union Pork Company. 

Vineyard Haven Marine Railway Company. 

W. C. Young Manufacturing Company. 

W. D. Wilmarth & Company. Corporation. 

W. S. Hill Electric Company. 

Wachusett Mills. 

Waite Felting Compan}'. 

Waltham Tribune Company. 

Ware River Manufacturing Company. 

Warren & Hill Coal Company. 

Westfield Brick Company. 

Weymouth Seam Face Granite Company. 

Williamstown Gas Company. 

Worcester Construction Company, The. 

Worcester Fire Appliance Company, The. 

Worcester Steam Heating Company. 

Wright & Colton Wire Cloth Company, The. 

The following corporations, reported to this department by the 
Commissioner of Corporations for delinquency in filing the certifi- 
cate of condition required by Pub. Sts., c. 106, § 54, have been 
compelled, without the necessity of suit, to comply with the 
statute : — 

American Cultivator Publishing Company. 

Arlington Co-operative Association, The. 

Blauchard Optical Company. 

Boston Blower Company. 

Boston Dental Manufacturing Company. 



1900.] PUBLIC DOCUMENT — No. 12. 129 

Boston Exploration Company. 

Brookfield Brick Company. 

Carter, Rice & Company, Corporation. 

College Athlete Society. 

Consumers Co-operative Association. 

Cottage City Gas and Electric Light Company, The. 

Cutter-Tower Company. 

Dean Whitney Elevator Company. 

Dunbar Mills Company, The. 

Eureka Ruling and Binding Company. 

F. P. Norton Cigar Company. 

George P. Staples & Co., Incorporated. 

Henry C. King Company. 

Harcourt Paper Box Company. 

Investment Corporation. 

J. P. Jordan Paper Company. 

Jewett Piano Company. 

John N. Rieger Company. 

L. E. Knott Apparatus Company. 

Lynn Ice Company, The. 

Mansfield Co-operative Furnace Company. 

Mattakessett Hall Association. 

Medway Electric Light and Power Company. 

Merrimac Paper Compan}^ 

Monarch Horse Nail Company. 

Morgan Company. 

New England Dredging Company. 

New England Rubber Company. 

Newton Machine Company. 

North And over Mills. 

Oak Grove Creamery Company, The. 

Old Colony Boot and Shoe Company. 

Peter Wood Dyeing Companj/. 

Reading Co-operative Association. 

Springfield Elevator and Pump Company, The. 

Sun Printing Company. 

Swett & Lewis Company. 

T. F. Little Oil Company, The. 

W. D. Wilmarth & Company, Corporation. 

Westfield Brick Company. 



130 ATTOKNEY-GENERAL'S REPORT. [Jan. 



Cases arising in the Pkobate Courts under 
THE Collateral Inheritance Tax Act. 



[Statutes 1891, Chapter 425.] 
Bristol Co2mty. 

Almy, Hannah T., estate of. Milton Reed, executor. Petition 
for instructions. Attorney-General waived right to be heard. 

Porter, Mary T., estate of. James S. Greves, executor. Petition 
for instructions. Answer filed. Decree that property was 
taxable. Appeal to Supreme Judicial Court. Hearing. 
Reserved for full court. Argued. Decree of Probate Court 
affirmed. See Greves v. Shaw, 173 Mass. 205. 

Sherman, Abraham, estate of. Alanson Borden, executor. Pe- 
tition for extension of time for payment of tax. Pending. 

Waring, James, estate of. Amj' A. Waring, executor. Petition 
for extension of time for payment of tax. Attorney-General 
waived right to be heard. 

Essex Couyity. 

Ames, George L., estate of. AYilliam H. Jelly, et cd., executors. 
Petition for extension of time for payment of tax. Tax paid. 

Bennett, Decatur R., estate of. Wm. E. Blunt, petitioner. Pe- 
tition for allowance of administrator's fees. Petition dis- 
missed without prejudice. 

Bohonan, Sargent, estate of. Oliver I. Kimball, executor, 
petitioner. Petition for license to receive personal estate in 
Massachusetts. Attorney-General waived right to be heard. 

Bonney, Arvilla S., estate of. Carydon R. Bonney, executor. 
Petition for license to receive personal estate in this Common- 
wealth. Decree. 

Brown, Charles C, estate of. William Morrill, et a!., executors. 
Petition for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 



1900.] PUBLIC DOCUMENT — No. 12. 131 

Brown, William H., estate of. George W. Brown, executor. 

Petition for instructions. Answer filed. Pending. 
Carleton, James H., estate of. Petition for allowance of execu- 
tors' third and fourth accounts. Pending;. 
Carleton, James H., estate of. Henry S. Howe et als., peti- 
tioners. Petition for determination of tax and extension of 
time of payment. Pending. 
Chase, Salome B., estate of. David W. Potter, executor, peti- 
tioner. Petition for license to receive personal property in 
this Commonwealth. Attorney-General waived right to be 
heard. 
Coggswell, Sarah F., estate of. Samuel W. Hopkinson, executor. 

Petition for instructions. Pendino^. 
Condon, Bobert W., estate of. James S. Condon, administrator. 
Petition for license to receive personal estate in this Common- 
wealth. Pending. 
Eaton, Sallie, estate of. John W. Eaton, executor. Petition for 
license to receive personal estate in this Commonwealth. 
Attorney-General waived right to be heard. 
Edwards, Sarah E., estate of. Sidney S. Edwards, executor. 
Petition for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 
Ferguson, Edward A., estate of. Sarah E. Ferguson, adminis- 
tratrix. Petition for license to receive personal estate in this 
Commonwealth. Attorney-General waived right to be heard. 
Frothingham, Joseph, estate of. James H. Frothingham, execu- 
tor. Petition for instructions. Decree that property was 
taxable. Appeal taken to Supreme Judicial Court. Decree 
of Probate Court affirmed. Appeal to full court. Decree 
affirmed. See Frothingham v. Shaiv, 55 N. E. Rep. 623. 
Godfrey, Priscilla H., estate of. Byron H. Wear, administrator. 
Petition for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 
Harrington, Henry, estate of. Lydia F. Harrington, executrix. 
Petition for suspension of time for payment of collateral 
inheritance tax. Attorney-General waived right to be 
heard. 
Manning, Wilham H., estate of. Cora M. Dame, executrix. 
Petition for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 
Martin, James E., estate of. John T. Bartlett, administrator. 
Petition for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 



132 ATTORNEY-GENERAL'S REPORT. [Jan. 

Moulton, Olive O., estate of. Henry M. Batcbelder, execu- 
tor. Petition for extension of time for payment of tax. 
Pending. 

Kent, David W., estate of. Chas. W. Hobbs, administrator. 
Petition for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 

Kimball, Susan J., estate of. Thomas J. Courser, administrator. 
Petition for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 

Knight, Ann, estate of. Thomas F. Bride, administrator. Peti- 
tion for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 

Purinton, Anna, estate of. Ezra Huntington et als., executors. 
Petition for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 

Sanborn, Mary A., estate of. Charles T. Brown, executor. Peti- 
tion for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 

Sawyer, Stella A., estate of William A. Sawyer, administrator. 
Petition for license to receive personal estate in Massachu- 
setts. Attorney-General waived right to be heard. 

Walton, Jonathan, estate of. Samuel S. Walton et al., peti- 
tioners. Petition for license to receive personal estate within 
the Commonwealth. Decree. 

Williams, Stephen C, estate of. Luther Adams, executor. Peti- 
tion for instructions. Appearance entered. Decree. 

Urquhart, Jennie, estate of Ebenezer Urquhart, administrator. 
Petition for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 

FranMin County. 
Mirick, George W., estate of. Orsamus Maxwell, executor. 
Petition for instructions. Decree. 

Hampden County. 

Adams, Emma C, estate of. Frederick C. Abbe, executor. Pe- 
tition for instructions. Decree. 

Alvord, Asenath, estate of. Suit upon executor's bond for bene- 
fit of Louis J. Alvord, a legatee. John Hildreth appointed 
assessor. Pending. 

Alvord, Eugenia C, estate of. Edward W. Chapin, executor. 
Petition for appraisal and instructions. Pending. 



1900.] PUBLIC DOCUMENTING. 12. 133 

Bates, Almecla N., estate of. Chas. A. Emery et als.^ executors. 
Petition for reappraisals and to fix amount of certain fees. 
Decree. 

Brewer, Cynthia A., estate of. James C. Ingersoll, executor. 
Petition for appraisal. Attorney-General waived right to be 
heard. 

Bumstead, Josiah, estate of. Edward P. Kendrick, executor. 
Petition for extension of time for payment of tax during the 
pendency of certain actions against the estate. Attorney- 
General waived right to be heard. 

Cowdry, James N., estate of. Edward A. Collins, administrator. 
Petition for license to receive personal estate in this Com- 
monwealth. Attorney-General waived right to be heard. 

Day, Sophronia B., estate of. Petition for acceptance of first 
and final account of executors. Attorney-General waived 
right to be heard. 

Draper, Mary L., estate of. Francis G. Conklin et als., petition- 
ers. Petition for reappraisal. Pending. 

Fuller, Lucy A., estate of. Edward H. Lathrop, administrator. 
Petition for extension of time for payment of tax. Pending. 

Hayes, Charles, estate of. James G. Dunning, public adminis- 
trator, petitioner. Petition for allowance of first and final 
account. Attorney-General waived right to be heard. 

Hyde, Mary F., estate of. Arthur A. Hyde, executor. Petition 
for license to receive personal estate in this Commonwealth. 
Attorney- General w^aived right to be heard. 

Kellogg, Chester, estate of. Mary A. Kellogg et a/s., administra- 
tors. Petition for instructions. Pending. 

Kellogg, Chester, estate of. Mary A. Kellogg^ petitioner. Peti- 
tion for reappraisal. Attorney- General waived right to be 
heard . 

Lyon, Nancy M., estate of Henry A. King, executor. Petition 
for appointment of appraisers. Attorney-General waived 
right to be heard. 

Ruby, Emily S., estate of. Frank E. Carpenter, executor. Peti- 
tion for extension of time for payment of tax. Attorney- 
General waived right to be heard. 

Smith, Horace, estate of. Petition for allowance of third and 
fourth accounts of trustees. Attorney-General waived right 
to be heard. 

Stebbins, Angelina, estate of. Richard W. Rice et al., executors. 
Petition for instructions. Decree that property was taxable. 
Appeal taken to Supreme Judicial Court. Pending. 



134 ATTORNEY-GENERAL'S REPORT. [Jan. 

Titus, Andrew, estate of. Stephen C. Downs, executor. Peti- 
tion to file final account without payment of tax. Decree. 

Hampshire County, 
Shumwa}^, Esther, estate of. George A. Shumwaj^, administrator. 

Petition for abatement of interest on collateral inheritance 

tax. Pending. 
Taylor, Hiram, estate of. Carrie E. Taylor, executrix. Petition 

to determine what legacies are subject to tax. Pending. 

Middlesex County. 

Abbott, Mary M., estate of. John B. Brown, executor. Petition 
for extension of time for payment of tax. Hearing. Decree. 

Ames, Mary C, estate of. George Ames, petitioner. Petition 
for reappraisal. Pending. 

Ames, MaryC, estate of. Franklin T. Hammond, administrator 
with the will annexed. Petition for instructions. Pending. 

Anderson, Minerva E., estate of. Norman C. Mallory, executor. 
Petition for license to receive personal estate in this Common- 
wealth. 

Atwood, Andrew, estate of. John H. Atwood, administrator. 
Petition for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 

Barry, Abby Y., estate of. Fanny E. Beemis, administratrix. 
Petition for reappraisal. Consented to appointment of ap- 
praisers. Pending. 

Bartlett, Elizabeth S., estate of. Rhode Island Hospital Trust 
Company, administrator. Petition for license to receive per- 
sonal estate in Massachusetts. Attorney-General waived 
right to be heard. 

Blakely, Samuel, estate of. George H. Gale, executor. Petition 
for extension of time of payment of tax. Pending. 

Bohonan, Sargent, estate of. Oliver I. Kimball, executor. Peti- 
tion for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 

Boyd, Elizabeth J., estate of. William F. Mullen, executor. 
Petition for reappraisal of real estate for purposes of deter- 
mining tax. Appraisers appointed. 

Brown, Mary L., estate of. Charles I. Brown et al., executors. 
Petition for instructions. Decree. 

Buckman, Samuel C, estate of. Charles L. Robertson et cds.^ 
executors. Petition for instructions. Decree. 



1900.] PUBLIC DOCUMENT — No. 12. 135 

Burnap, Joseph, estate of. Henry T. Burnap, administrator. 
Petition for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 

Cofran, Samuel M., estate of. Charles H. Smith, administrator. 
Settled by the payment of tax. 

Dimock, Dwight L., estate of. Samuel L. Chase, executor. 
Petition for instructions. Hearing. Pending. 

Doe, John E., estate of. Jennie F. Doe, executrix. Petition for 
license to receive personal estate in Massachusetts. Attorney- 
General waived right to be heard. 

Eaton, Cordelia L., estate of. Charles W. Eaton, petitioner. 
Petition for appraisal of that part of estate devised to the 
petitioner. Pending. 

Ellis, Jemima, estate of. Charles E. Berry, administrator. Peti- 
tion for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 

Farley, Mary E., estate of. James E. Foster, administrator. 
Petition for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 

Ferguson, Zerviah L., estate of. Charles lugalls, administrator. 
Petition for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 

Foster, Harriet A. O , estate of. George E, Bates, administrator. 
Petition for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 

French, Mehitable, estate of. Willis G. Buxton, executor. Peti- 
tion for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 

Gleason, Joanna, estate of. Charles H. Walcott, executor. Pe- 
tition for instructions. Decree. 

Grover, Chester B., estate of. Lucas B. Grover, administrator. 
Petition for reappraisal of real estate. Pending. 

Hayes, Francis B., estate of. Augustus P. Loring, executor. 
Petition for extension of time for payment of tax. 

Ham, George W., estate of. Charles W. Hobbs, executor. Pe- 
tition for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 

Heagau, Maria, estate of. Robert Killman, administrator. 
Petition for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 

Howe, Hartwell, estate of. Ann E. Golbert, only heir. Petition 
for reappraisal. Attorney-General waived right to be heard. 



136 ATTORNEY-GENERAL'S REPORT. [Jan. 

Howland, Lucinda, estate of. Luther Morrisou, administrator. 
Petition for license to receive personal estate in Massachu- 
setts. 

Hurd, Mary A., estate of. Petition of executor for license to 
receive personal estate in this Commonwealth. Pending. 

Hutchinson, Margaret A. C, estate of. William M. Townsend, 
executor. Petition to expunge an item from inventory. At- 
torney-General waived right to be heard. 

Hutchinson, Margaret A. C, estate of. Willis M. Townsend, 
executor. Petition that executor be ordered to recover cer- 
tain lands. Attorney-General waived right to be heard. 

Andrews, Elizabeth J., estate of. Edwin B. Laskell et als., 
executors. Petition for extension of time for payment 
of collateral tax. Attorney-General waived right to be 
heard. 

Kerrigan, Elizabeth, estate of. Frank J. Finning, administrator. 
Petition for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 

Kidder, Emily, estate of. David A. Starrett, administrator. 
Petition for license to receive personal estate in this Common- 
w^ealth. Pending. 

Lincoln, Sarah 8., estate of. Henry C. Weston, executor. Peti- 
tion for reappraisal. Pending. 

Lyford, Mary V., estate of. James H. Brock, administrator. 
Petition for license to receive personal estate in Massachu- 
setts. Pending. 

Lyon, Cynthia S., estate of. Augustus Berry, administrator. 
Petition for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 

Munroe, Edmund Sewall, estate of. Horace C. Deland, execu- 
tor. Petition for license to receive personal estate in 
Massachusetts. 

Quealy, John, estate of. John G. Maguire, executor. Petition 
for instructions. Decree. 

Richardson, Charlotte H., estate of. Charles H. Fox, adminis- 
trator. Petition for license to receive personal estate in this 
Commonw^ealth. Decree. 
Robbe, Lydia B., estate of. Maria Robbe, executor. Petition 
for license to receive personal estate in this Commonwealth. 
Attorney-General waived right to be heard. 
Smith, Nancy M., estate of. George W. Barton, administrator. 
Petition for license to receive personal estate in this Common- 
wealth. Decree. Appeal. 



1900.] PUBLIC DOCUMENT — No. 12. 137 

Spaulding, Myles, estate of. Mary E. M. Spaulding, executor. 
Petition for instructions. Decree. 

Stearns, Julia A., estate of. Warren P. Emory, executor. Peti- 
tion for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 

Tarbox, John, estate of. Frederick A. Cutter, petitioner. 
Petition for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 

Tilton, Harvey W., estate of. David B. Clement, petitioner. 
Petition for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 

Trull, Charles, estate of. Mary Mehitable Littlefield, devisee. 
Petition for appraisal of devise to petitioner. 

Tuttle, Elizabeth J., estate of. Walter Tuttle, administrator. 
Petition for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 

Vinal, Mary E., estate of. Quincy A. Vinal, executor. Petition 
to abate interest on tax. Answer filed. Pending. 

Whittaker, David, estate of. Willis G. Buxton, executor. Peti- 
tion for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 

Norfolk County. 

Barnett, Abby L. H., estate of. Charles H. Heath et al., execu- 
tors. Petition for instructions. Decree entered that estate 
is taxable. 

Bullard, Mary, estate of. Frederick D. Ely, executor. Petition 
for instructions. Pending. 

Hall, William H., estate of. Charles H. Harker, administrator 
with will annexed. Petition to appoint appraisers to appraise 
part of estate of John R. Hall remaining undivided at the 
death of William H. Hall. Appraisers appointed. 

Morton, Sarah B., estate of. Geo. W. Morton et al.^ executors. 
Petition for instructions. Decree. 

Morton, Sarah B., estate of. George W. Morton et al., executors. 
Petition for reappraisal for purposes of a collateral inheritance 
tax. Appraisers appointed. Return made and tax paid. 

Plymouth County. 
Latham, Lydia T., estate of. Helen E. Alden, one of next of 
kin. Petition for appointment of appraisers to determine the 
amount of tax. Consented to appointment of Paul O. Clark, 
Wm. Bassett, J. Gardner Bassett, as appraisers. 



138 ATTORNEY-GENERAL'S REPORT. [Jan. 



Sit folk County. 

Austin, Edward, estate of. Edward W. Hooper et al.^ executors. 
Petition for instructions. Decree. Appealed to Supreme 
Judicial Court. 

Binney, Rt. Rev. Hibbert, estate of. William H. Binney, admin- 
istrator. Petition for license to receive personal estate in this 
Commonwealth. Attorney-General waived right to be heard. 

Blaisdell, Charlotte O., estate of. Alfred O. Blaisdell, adminis- 
trator. Petition for license to receive personal estate in 
this Commonwealth. Attorney-General waived right to be 
heard. 

Blodgett, Charles H., estate of. Solomon A. Bolster, executor. 
Petition for instructions. Decree. 

Bourne, James J., estate of. George H. Bourne, administrator. 
Petition for license to receive personal estate in Massachu- 
setts. Attorney-General waived right to be heard. 

Bowen, Georgia A., estate of. Joshua B. Richmond, executor. 
Petition for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 

Carter, Samuel, estate of. Deloraine P. Corey, executor. Peti- 
tion for instructions. Decree. 

Carter, Samuel, estate of. Sarah A. Floyd, petitioner. Petition 
for appointment of appraisers to appraise real estate for pur- 
poses of a tax. Appraiser appointed. 

Chessman, William H., estate of. Benj. F. Brown et als.^ exec- 
utors. Petition for instructions. Pending. 

Clapp, Lyman, estate of. William O. Cornell, administrator. 
Petition for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 

Codman, Catherine E., estate of. Robt. Codman, executor. Peti- 
tion for instructions. Decree. 

Davis, George W., estate of. Linus E. Pearson, executor. Peti- 
tion for instructions. Pending. 

Day, Austin P., estate of. Mary E. Stoddard, executrix. Peti- 
tion for instructions. Decree. 

Doane, Thomas, estate of. David B. Perry et al., executors. 
Petition to determine tax on income of trust estate paid 
to Doane College. Attorney-General waived right to be 
heard. 

Doran, Margaret, estate of. John Pembroke, executor. Petition 
for license to receive personal estate in this Commonwealth. 
Attorney-General waived right to be heard. 



1900.] PUBLIC DOCUMENT — No. 12. 139 

Draper, Ada Augusta, estate of. Petition for the appointment of 
trustees under the will of deceased. Waived notice. 

Durkee, Dwight, estate of. David G. Durkee et a?., executors. 
Petition for license to receive personal estate in this Common- 
wealth. Pending. 

Edwards, Charlotte M., estate of. Maria Edwards, executor. 
Petition for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 

Eldridge, Elizabeth, estate of. Chas. F. Perry, administrator. 
dehonis 7ion with will annexed. Petition for decree that full 
amount of tax has been paid to the Commonwealth by F. V. 
Balch, executor. Attorney-General waived right to be heard. 

Foster, John, estate of. Charles U. Cutting et als.^ executors. 
Petition for instruction regarding the payment of tax. Decree. 
Not taxable. 

Freeman, Rufus G. A., estate of. George T. Moody, executor, 
petitioner. Petition for instructions. Decree that property 
is taxable. Appealed to Supreme Judicial Court. Reserved 
for full court. Argued. Decree of Probate Court afhrmed. 
See Moody v. Sliaw^ 173 Mass. 375. 

Gardner, John L., estate of. John C. Gray et al., executors. 
Petition for extension of time for payment of tax. Attorney- 
General waived right to be heard. 

Gennaro, Joseph D , estate of. Elvira D. Gennaro, petitioner. 
Petition for appointment of administrator. Pending. 

Goodwin, Julia, estate of. Chas. B. Goodwin, executor. Peti- 
tion for license to receive personal estate in Massachusetts. 
Attorney-General waived right to be heard. 

Greenfield, Charles, estate of. John Greenfield, administrator. 
Petition for license to transfer stock. Attorney-General 
waived right to be heard. 

Grover, Helen M., estate of. Albert F. Conant, executor. Peti- 
tion for instructions. Pending. 

Guild, Elizabeth Q., estate of. Charles E. Guild et aL, executors 
and trustees. Petition for extension of time for payment of 
tax. Consented to allowance of petition. 

Eliza A. Haven, estate of. Petition to the probate court. Dis- 
missed. 

Hilton, William, estate of. Henry C. Weston et al., trustees, v. 
Amesbury et al. Bill of interpleader. Attorney- General 
waived right to be heard. 

Huckins, Owen B., estate of. Mary A. Huckins, executrix. 
Petition for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 



140 ATTORNEY-GENERAL'S REPORT. [Jan. 

Hunt, John M., estate of. Mary E. Hunt, administrator. Peti- 
tion for license to transfer stock. Attorney-General waived 
right to be heard. 

Ingalls, Lucy, estate of. Jason Russell, administrator. Petition 
for license to receive personal estate in this Commonwealth. 
Attorney-General waived right to be heard. 

Johnson, Frances S. F., estate of. Charles Haigh, executor and 
trustee. Petition for extension of time for payment of tax. 
Decree. 

Johnson, James R., estate of. Mary A. Johnson, executrix. 
Petition for license to receive personal estate in Massachu- 
setts. Attorney-General waived right to be heard. 

Johnson, John M., estate of. William H. Allen et al.^ executors. 
Petition for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 

Kane, Frank, estate of. John F. Kane, administrator. Petition 
for license to receive personal estate in Massachusetts. 
Pending. 

Kelley, Jasper, estate of. W. Frederick Kimball, administrator. 
Petition for license to sell at public auction certain real estate. 
Decree. 

Knight, Elizabeth H., estate of. Henry P. Knight et al, execu- 
tors. Petition for extension of time for payment of tax. 
Attorney-General waived right to be heard. 

Kremar, Agnes, estate of. John G. Hanly, party in interest. 
Petition for reappraisal of real estate in Boston for purposes 
of tax. Attorney-General waived right to be heard on return 
of appraiser. 

Ladd, Frances W., estate of. Uriel H. Crocker, trustee under 
deed of trust. Petition for instructions. Answer filed. 
Decree that property is subject to tax. Appealed to Supreme 
Judicial Court. Decree of Probate Court affirmed. See 
Crocker v. Shaiv, 54 N. E. Rep. 549. 

Ladd, Francis W., estate of. Petition of trustee for instruction 
as to whether all taxes had been paid which w^ere due the 
Commonwealth. Attorney-General waived right to be heard. 

Mack, Thomas, estate of. Eleanor S. Mack et al, executors. 
Petition for instructions. Decree. 

Mack, Thomas, estate of. Eleanor T. Mack et ah., executors. 
Petition for extension of time for payment of tax. Attorney- 
General waived right to be heard. 

Macomber, Lizzie, estate of. Aurelion M. Brown, administrator. 
Petition for license to receive distributive share in the estate of 
Jennie M. Brown. Attorney-General waived right to be heard. 



1900.] PUBLIC DOCUMENT — No. 12. 141 

McKenzie, Catherine, estate of. Wm. H. Crawford, executor. 
Petition for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 

Parker, Ezra, estate of. Arthur G. Whittemore, administrator. 
Petition for license to receive personal estate in this Common- 
wealth. Pending. 

Parsons, Martha, estate of. Arthur Jeffery Parsons et al, ex- 
ecutors. Petition for extension of time for payment of tax. 
Attorney-General waived right to be heard. 

Phillips, Eliza, estate of. Robert Workman et al.^ executor. 
Petition for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 

Phillips, Lucinda E., estate of. Abner M. Stow, executor. Pe- 
tition to amend final account and to determine tax. Appeal 
to Supreme Judicial Court. Decree. 

Pike, Elizabeth, estate of. John C. Pike, petitioner. Petition 
for license to receive personal estate in this Commonwealth. 
Attorney-General waived right to be heard. 

Randall, Belinda L., estate of. Francis V. Balch et al.^ trustees. 
Petition for instructions. Decree that property was taxable. 
Appeal to Supreme Judicial Court. Decree that property was 
not taxable. Appeal to full court. Decree of Probate Court 
reversed. See Balch v. Attorney- General, 54 N. E. Rep. 490. 

Richards, Jesse M., estate of. Selden J. Richards et al., execu- 
tors. Petition for license to receive personal estate in this 
Commonwealth. Attorney-General waived right to be heard. 

Richardson, Thaddeus, estate of. Frederick R. Tappan et al., 
executors. Petition for instructions. Pending. 

Rotch, Arthur, estate of. William Caleb Loring et al., executors. 
Petition for extension of time for payment of tax on trust 
funds. Attorney-General waived right to be heard. 

Shaw, Charlotte R., estate of. Henry W. Swasey, administrator. 
Petition for license to transfer shares of Boston & Albany 
Railroad stock. Tax paid. Attorney-General waived right 
to be heard. 

Smith, John, estate of. J. Frank Seavey, executor. Petition for 
license to receive personal estate in this Commonwealth. 
Attorney-General waived right to be heard. 

Smith, Sarah C, estate of. George J. Lovett, administrator. 
Petition for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 

Spaulding, Clyde O., estate of- Frank T. Spaulding, executor. 
Petition for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 



142 ATTORNEY-GENERAL'S REPORT. [Jan. 

Taggard, Cyrus H., estate of. John H. Taggard, next of kin. 
Petition for reappraisal. Decree. 

Wadsworth, Mercy G., estate of. Samuel H. Eldridge, executor. 
Petition for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 

Walker, Edward C. R., estate of. Alfred Bowditch et al.^ trus- 
tees. Petition for suspension of payment of tax. Decree. 

White, Annie, estate of. Thomas White, administrator. Peti- 
tion for license to receive personal estate in this Common- 
wealth. Attorney-General waived right to be heard. 

Wolcott, Harriet Frothingham, estate of. Roger Wolcott, execu- 
tor. Petition for instructions. Pending. 

Woodward, Abijah, estate of. Greenleaf C. George, trustee. 
Petition for instructions. Pending. 

Young, Samuel N., estate of. Jas. H. Chaney et al., executors. 
Petition for license to receive personal property in this Com- 
monwealth. Attorney-General waived right to be heard. 

Worcester County. 
Beckwith, Frederick A., estate of. Edward P. Pierce, executor. 

Petition for instructions. Decree. 
Blake, Harrison G. O., estate of. Henry E. Hill, executor. Pe- 
tition for suspension of payment of tax. Decree. 
Buck, Horace B., estate of. Eliza A. Buck, executrix. Petition 

for instructions. Hearing. Pending. 
Hastings, Solon S., estate of. Moses C. Goodnow, administrator. 

Petition for instructions. Attorney-General waived right to 

be heard. 
Parker, M. Isadore, estate of Jonathan Smith, executor. Petition 

for extension of time for payment of tax. Attorney-General 

waived right to be heard. 
Raymond, George B., estate of. Henry M. Raymond et aL, 

executors. Petition for extension of time for payment of tax. 

Attorney-General waived right to be heard. 



1900.] PUBLIC DOCUMENT — No. 12. 143 



PUBLIC CHARITABLE TRUSTS. 



Essex County. 
Essex Agricultural Society v. Massachusetts General Hospital 

Corporation and the Attorney-General. Petition to sell real 

estate and to apply the doctrine of cy-pres. Service accepted. 

Petition dismissed. Petitioner appealed. Pending. 
Smith, James M., estate of. Chas. R. Batt et al., executor. 

Petition for instructions. Attorney-General waived right to 

be heard. 

Hampden County. 
Sherman, Sarah J., estate of. Henry C. Sherman, executor. 
Petition for instructions as to whether a certain bequest was 
a valid public charitable bequest. Probate Court decreed it 
valid. Appealed to Supreme Court and reserved for the full 
court. Submitted on briefs. Pending. 
Suffolk County. 

Attorney-General, petitioner. Petition 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. 

Davis, Eliza C, estate of. Bill to establish a compromise concern- 
ing a will containing a public charitable gift. Attorney-Gen- 
eral waived right to be heard. 

Holmes, Charles H., estate of. Salome D. Hood, executor. Peti- 
tion for construction of the residuary clause of the will of said 
deceased. Attorney-General waived right to be heard. 

Liversidge, Thomas, estate of. Petition for allowance of eigh- 
teenth and nineteenth accounts of trustees under the will of 
said deceased. 

Messerve, Hopley T., estate of. George H. Penderghast, execu- 
tor. Petition regarding a public charitable trust. 

Murray, Patrick, estate of. Petition for appointment of a master 
to devise a scheme for distribution of trust funds. 



144 ATTORNEY-GENERAL'S REPORT. [Jan. 

Thompson, Thomas, estate of. Minot, trustee, v. Attorney- 
General. Bill in equity to determine a public charitable 
trust. 

Tufts College Trustees v. City of Boston. Petition to sell real 
estate devised under the will of Silvanus Packard. Appear- 
ance entered. Decree. 

Trustees of Tufts College v. City of Boston et als. Petition to 
obtain consent of court for selling real estate devised by will 
of Silvanus Packard. Appearance entered. Answer filed. 
Decree. 

Worcester County. 

Brooks, Darwin, estate of. Samuel A. Pratt, trustee. Petition 
to sell real estate under will, and turn over proceeds to New 
England Christian Association. Attorney-General waived 
right to be heard. 

Curtis, William, estate of. Chas. S. Henry e^ al., trustees. Peti- 
tion for allowance of first and second accounts of trustees. 

Fyfe, William E., estate of. Mary J. Fyfe, executrix. Petition 
for decree declaring null and void a devise of real estate for 
some benevolent object. Pending. 

Sawtell, Charles F., administrator, v. the Board of Ministerial Aid 
et al. Petition for instructions. Decree. 

Tainter, Nahum, et al. v. Malcolm G. Clark et al., trustees. Bill 
in equity to declare void a trust under will of Ephraim Cope- 
land. Peudino-. 



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. 

Mary Casey v. City of Northampton et als. Superior Court, 

Hampshire County. Pending. 
Mary Simpson v. City of Northampton et als. Superior Court, 

Hampshire County. Pending. 
F. R. Ellwell V. City of Northampton et als. Superior Court, 

Hampshire County. Pending. 
Elizabeth N. Thompson v. City of Northampton et als. Superio 

Court, Hampshire County. Pending. 
John A. Partridge v. City of Northampton et als. Superior Court, 

Hampshire County. Pending. 



1900.] PUBLIC DOCUMENT — No. 12. 145 

William M. Trow v. City of Northampton et als. Superior Court, 

Hampshire County. Pending. 
Charles P. Damon v. City of Northampton et als. Superior Court, 

Hampshire County. Pending. 
John A. Kearns v. Connecticut River Railroal et als. Superior 

Court, Hampshire County. Pending. 
Arthur C. Guilford v. New Haven & Northampton Company e^ als. 

Superior Court, Hampshire County. Pending. 
William F. Kingsley v. City of Northampton et als. Superior 

Court, Hampshire County. Pending. 
Timothy Sullivan v. City of Northampton et als. Superior Court, 

Hampshire County. Pending. 
William J. Hall v. City of Northampton et als. Superior Court, 

Hampshire County. Pending. 
Robert Monsey v. City of Northampton et als. Superior Court, 

Hampshire County. Pending. 
Martha E. Dickerson v. Boston & Maine Railroad et als. Superior 

Court, Hampshire County. Pending. 
John A. Keaines v. Boston & Maine Railroad et al. Superior 

Court, Hampshire County. Pending. 
Timothy Sullivan v. City of Northampton et als. Superior Court, 

Hampshire County. Pending. 
Commonwealth of Massachusetts v. City of Boston et als. Superior 

Court, Suffolk County. Pending. 
Commonwealth of Massachusetts v. City of Boston et als. Superior 

Court, Suffolk County. Pending. 
Robert Codman et als. v. New P^ugland Railroad Company et als. 

Superior Court, Suffolk County. Pending. 
City of Boston v. Boston Wharf Company et als. Superior Court, 

Suffolk County. Pending. 
Bridget Ballentine et al. v. Town of Gardner. Superior Court, 

Worcester County. Pending. 



146 ATTORNEY-GENERAL'S REPORT. [Jan. 



Suits conducted by the Attorney-Geneeal in 
Behalf of State Boards and Commissions. 



The followiDg cases have been reported to this department by 
State boards and commissions, to be conducted b}' 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 
commission. 

Aaron D. Weld, Francis C. Welch, trustees, v. Commonwealth. 

Suffolk County. Trial by jury. Verdict for petitioner, for 

$6,080. 
George W. Fifield, administrator, et al. v. Boston, Revere Beach 

& Lynn Railroad Company. Middlesex County. This case, 

together with all suits by Fifield and McClellan v. Common- 
wealth and Boston, Revere Beach & Lynn Railroad, has been 

settled for $40,300 flat. 
George W. Fifield, administrator, v. Boston Revere Beach & Lynn 

Railroad Company. Middlesex County. Settled. 
George W. Fifield, administrator, v. Boston, Revere Beach & Lynn 

Railroad Company. Middlesex County. Settled. 
George W. Fifield, administrator, v. Boston, Revere Beach & Lynn 

Railroad Company. Middlesex County. Settled. 
George W. Fifield, administrator, v. Commonwealth. Suffolk 

County. Settled. 
Arthur D. McClellan v. Boston, Revere Beach & Lynn Railroad 

Company. Middlesex County. Settled. 
George W. Fifield, administrator, v. Commonwealth. Suffolk 

County. Settled. 
George W. Fifield, administrator, et al. v. Boston, Revere Beach 

& Lynn Railroad Company. Middlesex County. Settled. 
George W. Fifield, administrator, et al. v. Boston, Revere Beach 

& Lynn Railroad Company. Middlesex County. Settled. 
George W. Fifield, administrator, et al. v. Boston, Revere Beach 

& Lynn Railroad Company. Middlesex County. Settled. 



1900.] PUBLIC DOCUMENT — No. 12. 147 

Arthur D. McClellan v. Boston, Revere Beach & Lynn Railroad 

Company. Middlesex County. Settled. 
George S. Lee, trustee, et al. v. Boston & Maine Railroad Com- 
pany. Middlesex County. Pending. 
Charles E. Dearborn v. Commonwealth. Suffolk County. Trial 

by jury. Verdict, $5,655.50. 
President and Fellows of Harvard College v. Commonwealth. 

Suffolk County. Settled. 
John E. Cassidy v. Commonwealth. Middlesex County. Trial 

by jury. Verdict, $25,735.13. Petitioner excepted. Argued 

before Supreme Judicial Court. Exceptions overruled. 
John E. Cassidy v. Commonwealth. Middlesex County. Trial 

by jiiry* Verdict, $9,373 66. Petitioner excepted. Argued 

before Supreme Judicial Court. Exceptions overruled. 
John E. Cassidy v. Commonwealth. Suffolk County. Trial by 

jury. Verdict, $84,136.45 and costs. 
Eugene W. Graves et al. v. Commonwealth. Norfolk County. 

Trial by jury. Verdict for petitioner, $4,881.80. 
Joseph O. Bullard v. Commonwealth. Suffolk County. This case 

and one below settled for $2,000 and costs. 
Willard A. Bullard v. Commonwealth. Suffolk County. Settled. 
Ezra C. Dudley v. Commonwealth. Norfolk County. Pending. 
George W. Fifield, administrator, v. Boston, Revere Beach & Lynn 

Railroad Company. Middlesex County. Settled. 
Arthur D. McClellan v. Commonwealth. Suffolk County. Settled. 
John McMahon v. Commonwealth. Suffolk County. Settled. 
Lynn & Boston Railway Company v. Commonwealth. Suffolk 

County. Pending. 
Boston & Revere Electric Street Railway Company v. Common- 
wealth. Suffolk County. Pending. 
John B. Solari v. Commonwealth. Suffolk County. This case and 

three others, Solari v. Boston, Revere Beach & Lynn Railroad 

Company, settled for $4,500. 
Lucy V. Hayford, executrix, v. Commonwealth. Suffolk County. 

Pending. Settled by Park Commissioners. 
Alvin C. Norcross v. Commonwealth. Suffolk County. Settled 

for $500. 
Louis V. Bronsdon et als. v. Commonwealth. Norfolk County. 

Settled by Board for $400. 
Lemuel Crossman et al. v. Commonwealth. Norfolk County. 

Settled for $2,925. 
Elijah George v. Commonwealth. Norfolk County. This case 

and the following one settled for $5,000. 
Elijah George v. Commonwealth. Norfolk County. Settled. 



148 ATTORNEY-GENERAL'S REPORT. [Jan. 

James W. Broclbine v. Commonwealth. Suffolk County. Trial 
by jury. Verdict for petitioner, $11,125.00. 

John McMahou v. Commonwealth. Suffolk County. Trial by 
jury. Verdict for petitioner, $488. 

Arthur D. McClellan v. Commonwealth. Suffolk County. Settled. 

John McMahon v. Boston, Revere Beach & Lynn Railroad Com- 
pany. Middlesex County. Pending. 

Emroy W. Braman v. Commonwealth. Suffolk County. Trial by 
jury. Verdict, $14,435.00. 

Moses S. Case, trustee, v. Boston, Revere Beach & Lynn Railroad 
Company. Middlesex County. This case and one below 
settled for $2,600. 

Moses S. Case, trustee, v. Boston & Maine Railroad Company. 
Middlesex County. Settled. 

Frederick T. Hurley v. Boston, Revere Beach & Lynn Railroad 
Company. Suffolk County. Settled. 

Anna J. Derrington v. Boston, Revere Beach & Lynn Railroad 
Company. Middlesex County. Trial before county com- 
missioners. Award, $354.07. 

Saco and Biddeford Savings Institution v. Commonwealth. Nor- 
folk County. Settled, $1,325. 

Oliver Ames et al. v. City of Somerville. Middlesex County. 
Pending. 

Jane Putnam et al. v. Boston & Maine Railroad Company. Suffolk 
County. Pending. 

Jane Putnam et al. v. Boston, Revere Beach & Lynn Railroad 
Company. Suffolk County. Pending. 

Louis V. Bronsdon v. Commonwealth. Norfolk County. Settled 
for $400. 

Lemuel Crossman et al. v. Commonwealth. Norfolk County. 
Settled for $2,925. 

Washington G. Benedict v. Commonwealth. Suffolk County. 
Dismissed. 

George S. Lee et al. v. Boston, Revere Beach & Lynn Railroad 
Company. Middlesex County. Pending. 

Mary E. McCarthy, guardian, v. Commonwealth. Middlesex 
County. Settled for $2,528.70. 

A. Selwyn Lynde v. Commonwealth. Middlesex County. Pending. 

John B. Solari v. Boston, Revere Beach & Lynn Railroad Com- 
pany. Middlesex County. Settled. 

John B. Solari v. Boston, Revere Beach & Lynn Railroad Com- 
pany. Middlesex County. Settled. 

John B. Solari v. Boston, Revere Beach & Lynn Railroad Com- 
pany. Middlesex County. Settled. 



1900.] PUBLIC DOCUMENT — No. 12. 149 

George W. Chipman, assignee, v. Commonwealth. Middlesex 
County. Pending. 

Helen D. Johnson v. Commonwealth. Middlesex County. Pend- 
ing. 

William H. Wrenn v. Commonwealth. Middlesex County. Pend- 
ing. 

John P. Kuenzel v. Commonwealth. Middlesex County. Pend- 
ing. 

Mary E. Warner v. Commonwealth. Middlesex County. Pend- 
ing. 

Charles B. Wilson v. Commonwealth. Middlesex County. Pend- 
ing. 

Lorenzo Noble v. Commonwealth. Middlesex County. Pending. 

Mary A. Gill v. Commonwealth. Middlesex County. Pending. 

Boston & Maine Railroad Company v. Commonwealth. Middle- 
sex County. Settled by Park Commissioners. 

John Sheehan v. Commonwealth. Suffolk County. Pending. 

Alvin C. Norcross v. Commonwealth. Suffolk County. Settled 
for $100 flat. 

Daniel Shea v. Commonwealth. Norfolk County. Settled for 
$10,000. 

Mary E. Emerson v. Commonwealth. Middlesex County. Pend- 
ing. 

Francis J. Boss et al. v. Commonwealth. Middlesex County. 
Pending. 

George B. Bigelow, trustee, v. Commonwealth. Middlesex 
County. Pending. 

Caroline H. Conant v. Commonwealth. Middlesex County. Pend- 
ing. 

Albert Brackett v. Commonwealth. Middlesex County. Pending. 

Frances Corse v. Commonwealth et al. Middlesex County. Pend- 
ing. 

Marlaud L. Pratt v. Commonwealth. Middlesex County. Pend- 
ing. 

Louis P. Ober v. Commonwealth. Norfolk County. Pending. 

Dennis W. Mahoney et al. v. Commonwealth. Norfolk County. 
Pending. 

Henry B. Chandler v. Commonwealth. Norfolk County. Pend- 
ing. 

Adam Reinhard et al. v. Commonwealth. Middlesex County. 
Pending. 

Henry J. Alther v. Commonwealth. Middlesex County. Pending. 

Julia Alther v. Commonwealth. Middlesex County. Pending. 

Anastatia Kelly v. Commonwealth. Suffolk County. Pending. 



150 ATTORNEY-GENERAL'S REPORT. [Jan. 

Harvard College v. Commonwealth. Suffolk County. Pending. 
John R. Whitney et al., trustees, v. Commonwealth. Middlesex 

County. Pending. 
Alice F. Whitney v. Commonwealth. Middlesex County. Pend 

ing. 
Arthur E. Whitney et al. v. Commonwealth. Middlesex County 

Pending. 
William Lowe v. Commonwealth. Norfolk County. Pending. 
August Damm et al. v. Commonwealth. Middlesex County 

Pending. 
E. Munz et al. v. Commonwealth. Middlesex County. Pending 
Paul O. Kaerger et al. v. Commonwealth. Middlesex County 

Pending. 
Hannah J. Hefler et al. v. Commonwealth. Middlesex County 

Pending. 
Louis V. Bronsdon et al. v. Commonwealth. Norfolk County 

Pending. 
Charles A. Hale v. Commonwealth. Middlesex County. Pend 

ing. 
Frederick M. Crehore et al. v. Commonwealth. Middlesex County 

Pending 
James W. Brodbine v. Commonwealth. Suffolk County. Pend 

ing. 
William A. Bell, trustee, v. Commonwealth. Middlesex County 

Pending. 
Jeremiah McCarthy, heirs of, v. Commonwealth. Middlesex 

County. Pending. 
John W. Dolan -y. Commonwealth. Middlesex County. Pending. 
Alice A. Gould v. Commonwealth. Middlesex County. Pending. 
Alice A. Gould et al. v. Commonwealth. Middlesex County. 

Pending. 
Michael Shanahan v. Commonwealth. Middlesex County. Pend- 
ing. 
Edward T. Harrington et al. v. Commonwealth. Middlesex 

County. Settled for S3,500. 
Mary A. Emerson v. Commonwealth. Middlesex County. Pend- 
ing. 

2. Metropolitan Sewerage Commission. 
Petitions to the Superior Court for assessment of damages alleged 
to have been sustained by the taking of rights and easements in 
lands by said commission. 

City of Boston v. Commonwealth. Suffolk County. Pending. 
Amos Stone et al. v. Commonwealth. Suffolk County. Pending. 



1900.] PUBLIC DOCUMENT — No. 12. 151 

John Griffin v. Commonwealth. Suffolk County. Dismissed. 

Nicholas J. Penney v. Commonwealth. Middlesex County. Ver- 
dict ordered for defendant and case reported to full court. 
Verdict set aside and case ordered to stand for trial. Re- 
ported in 173 Mass. 507. Settled for $1,850. 

Joseph Stone et al, v. Commonwealth. Suffoli^ County. Pending. 

Joseph Stone et al. v. Commonwealth. Middlesex County. Pend- 
ing. 

J. Eugene Cochrane v. Commonwealth. Norfolk County. Trial 
by jury. Verdict for petitioner for $11,445. Defendant ex- 
cepted. Argued before full court. Pending. 

Boston V. Kingman et al. Suffolk County. Pending. 

Albert Brackett v. Commonwealth. Middlesex County. Settled 
by agreement for $2,250. 

John Booth et al. v. Commonwealth. Suffolk County. Trial 
before three justices of Supreme Judicial Court. Finding 
for defendant. 

Margaret Noon v. Commonwealth. Suffolk County. Pending. 

John Krug v. Commonwealth. Suffolk County. Pending. 

Annette Richards et al. v. Commonwealth. Suffolk County. 
Pending. 

John Sheehan v. Commonwealth. Suffolk County. Referred to 
an auditor. Pending. 

Association of the Evangelical Lutheran Church for Works of 
Mercy v. Commonwealth. Suffolk County. Pending. 

Joseph Stone et als. v. Commonwealth. Suffolk County. Pend- 
ing. 

Holyhood Cemetery Association v. Commonwealth. Suffolk 
County. Pending. 

Henry P. Nawn v. Commonwealth. Suffolk County. Pending. 

Boston V. Commonwealth. Suffolk County. Pending. 

Jasper W. Stone et al., administrators, v. Commonwealth. Suf- 
folk County. Pending. 

Hosea Kingman et al., petitioners. Pending. 

3. Metropolitan Water Board. 
Petitions to the Superior Court for assessment of damages alleged 
to have been sustained by the taking of rights and easements in 
lands by said commission. 

James W. McDonald, executor, and Susan M. Moore v. City of 
Boston. Worcester County. Dismissed without costs. 

Edna R. Hess and Lydia A. Rice, mortgagee, v. City of Boston. 
Worcester County. Settled by Board, 



152 ATTORNEY-GENERAL'S REPORT. [Jan. 

James W. McDonald, executor, Susan M. Moore and De Clinton 
Nichols V. City of Boston. Worcester County. Dismissed 
without costs. 

De Clinton Nichols et al. v. City of Boston. Worcester County. 
Pending. 

De Clinton Nichols et al. v. City of Boston. Worcester County. 
Pending. 

Josephine Burnett, Henry Burnett e^ aZ., trustees, v. City of Boston. 
AVorcester County. This case, including all other Burnett 
cases pending against Commonwealth and city of Boston, 
settled for $25,000. 

Josephine Burnett et al., trustees, v. City of Boston. Worcester 
County. Settled. 

Charles A. Woods v. City of Boston. Worcester County. Set- 
tled by Board. 

Josephine B. Kidder v. Commonwealth. Worcester County. Trial 
before an auditor. Finding of $25 for petitioner. Trial by 
jury. Verdict, $30, without interest. 

Harry Burnett et als. v. Commonwealth. Superior Court. Settled. 

Margaret E. Sargent v. Commonwealth. Worcester County, 
Pending. 

Hannah McAndrew v. Commonwealth. Worcester County. 
Pending. 

Joseph Burnett v. City of Boston. Worcester County. Settled. 

Ann Moran et al. v. Commonwealth. Worcester County. Dis- 
missed by agreement. 

Mary L. Ballou, trustee, v. Commonwealth. Worcester County. 
Settled for $1,385. 

John J. Clark v. Commonwealth. Worcester County. Settled. 

John L. Byard v. Commonwealth. Worcester County. Settled for 
$1,350. 

David O'Connell v. Commonwealth. Worcester County. Pending. 

DavidO'Connellv. Commonwealth. Worcester County. Pending. 

John F. Philbin v. Commonwealth. Worcester County. Dis- 
missed by agreement. 

Josephine L. Pierce v. Commonwealth. Worcester County. 
Pending. 

Timothy Fahey v. Commonwealth. Worcester County. Pending. 

Joseph H. Derosier v. Commonwealth. Worcester County. Dis- 
missed by agreement. 

Peter Goodnow v. Commonwealth. Worcester County. Pending. 

Chloe Ann Ballou v. Commonwealth. Worcester County. Pending. 

Chloe Ann Ballou v. Commonwealth. Middlesex County. Pending. 

Charles W. Felt v. Commonwealth. Worcester County. Pending. 



1900.] PUBLIC DOCUMENT — No. 12. 153 

Josephine B. Kidder v. Commonwealth. Worcester County. Trial 

before an auditor. Finding of $30 for petitioner. Trial by 

jury. Verdict, $36, without interest. 
Bridget Kittredge v. Commonwealth. Worcester County. Pending. 
Felix Nugent v. Commonwealth. Worcester County. Pending. 
Frederick W. Richardson v. Commonwealth. Worcester County. 

Settled for $340. 
John F. Philbin v. Commonwealth. Worcester County. Dis- 
missed by agreement. 
Thomas H. O'Connor v. Commonwealth. Worcester County. 

Pending. 
George Murrman v. Commonwealth. Worcester County. Settled 

for $7,250. 
Robert Cunningham et al. v. Commonwealth. Worcester County. 

Trial by jury. Verdict, $10,154.44, interest and costs. 
Hannah E. Cunningham v. Commonwealth. Worcester County. 

Settled by agreement for judgment, $1, interest and costs. 
Julia Kittredge v. Commonwealth. Worcester County. Pending. 
Thomas Connors v. Commonwealth. Middlesex County. Pending. 
Town of Southborough v. Commonwealth. Worcester County. 

Pending. 
Addison Johnson, executor, v. Commonwealth. Worcester County. 

Pending. 
Burnett et al. , trustees, v. Commonwealth. United States Supreme 

Court. Writ of error. Settled. 
Israel G. Howe v. Commonwealth. Worcester County. Pending. 
Charles L. Johnson v. Commonwealth. Worcester County. 

Pending. 
Charles F. Choate v. Commonwealth. Worcester County. Dis- 
missed by agreement. 
Josephine Burnett et als., trustees, v. Commonwealth. Worcester 

County. Settled. 
Charles B. Sawin v. Commonwealth. Worcester County. Pending. 
William H. Buck V. Commonwealth. Worcester County. Pending. 
William H. Buck v. Commonwealth. Middlesex County. Pending. 
Eliza Barnes v. Commonwealth. Worcester County. This case, 

together with another brought by same petitioner, settled for 

$950. 
Joseph Leonard v. Commonwealth. Worcester County. Tried 

before auditor. Settled for $490. 
Henry O. Sawyer et als. v. Metropolitan Water Board and the 

Commonwealth. Worcester County. Pending. 
Elizabeth S. Earle v. Commonwealth. Worcester County. 

Pendinof. 



154 ATTORNEY-GENERAL'S REPORT. [Jan. 

William A. P^arle v. Commonwealth. Worcester County. Pending. 

Robert Cunningham et al. v. Commonwealth. Worcester County. 
Pending. 

Alice Erning et al. v. Commonwealth. Worcester County. Set- 
tled for $2,600. 

Eliza Barnes v. Commonwealth. Worcester County. Settled. 

Nashua Riv^er Paper Company et al. v. Commonwealth. Middle- 
sex County. Pending. 

Nashua River Paper Company et al. v. Commonwealth. Worces- 
ter County. Pending. 

Boston & Albany Railroad Company v. Commonwealth. Suffolk 
County. Pending. 

Margaret F. Tonry v. Commonwealth. Worcester County. 
Pending. 

Michael Flaherty v. Metropolitan Water Board. Middlesex County. 
Settled by agreement for $1,000. 

Margaret M. Cain v. Commonwealth. Worcester County. 
Pending. 

Howard S. Shepard v. Commonwealth. Worcester County. 
Pending. 

Howard S. Shepard v. Commonwealth. Worcester County. 
Pending. 

Boston & Albany Railroad, petitioner. Middlesex County. 
Pending. 

Jacob M. Mason v. Medford. Suffolk County. Pending. 

Jacob M. Mason v. Commonwealth. Suffolk County. Pending. 

City of Boston v. Commonwealth. Norfolk County. Pending. 

Framingham Water Company v. Commonwealth. Middlesex 
County. Pending. 

Chas. U. Cotting et als. v. Commonwealth. Worcester County. 
Pending. 

Julia Kittredge et als. v. Commonwealth. Worcester County. 
Pending. 

Mary J. Hensbyv. Commonwealth. Middlesex County. Pending. 

John Burns v. Commonwealth. Middlesex County. Pending. 

Lillian F. PuUen v. Commonwealth. Middlesex County. Pending. 

Harriet Wilder v. Commonwealth. Worcester County. Pending. 

Thomas Grady v. Commonwealth. Worcester County. Pending. 

Guiseppe Dondero et als. v. Commonwealth. Worcester County. 
Pending. 

Timothy J. Lynch v. Commonwealth. Worcester County. 
Pending. 

Medford v. Commonwealth. Middlesex County. Pending. 
Melrose v. Commonwealth. Middlesex County. Pending. 



1900.] PUBLIC DOCUMENT — No. 12. 155 

Maiden v. Commonwealth. Middlesex County. Pending. 
Maiden, Medford, Melrose v. Commonwealth. Middlesex County. 
Pending. 

4. Massachusetts Highway Commission. 
Petitions to the Superior Court for assessment of damages alleged 
to have been sustained by the taking of land by said commission. 

Rebecca Booth v. Commonwealth. Plymouth County. Trial by 

jury. Verdict for petitioner, $135.70. 
J. B. Haveland v. Commonwealth. Suffolk County. Pending. 
George H. Ramsdell v. Ashby. Middlesex County. Entry of 

neither party. 
Charlotte E. Gould v. Commonwealth. Worcester County. 

Pending. 
Eliza S Graves e^ a?, v. Commonwealth. Essex County. Pending. 
Horace B. Taylor v. Commonwealth. Plymouth County. Pending. 
Isaac C. Wyman v. Commonwealth. Essex County. Pending. 
John E. Rice et al. v. Commonwealth. Middlesex County. 

Pending. 
Cephas Wadsworth v. Commonwealth. Norfolk County. Pending. 

5. Board of Harbor and Land Commissioners. 
Petitions to the Superior Court for assessment of damages caused 
by the taking of land by said commissioners. 

East Boston Company v. Commonwealth. Suffolk County. 

Pending. 
James H. Stark et al. v. Commonwealth. Suffolk County. 

Settled for $1,441.25. 
Anna L. Jeffries v. Commonwealth. Suffolk County. Pending, 
Thos. M. Babson et al. v. Commonwealth. Suffolk County. 

Settled for $1,625. 

6. 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. 

Mary Rohan v. Commonwealth. Petition to the Superior Court 
for Suffolk County in the nature of an action of tort for per- 
sonal injuries alleged to have been sustained in the construc- 
tion of a section of the metropolitan sewer. Pending. 



156 ATTORNEY-GENERAL'S REPORT. [Jan. 

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 from it to 
Casparis and alleged to be due from Casparis to petitioner. 
Demurrer filed. Demurrer sustained. Argued before the 
Supreme Judicial Court. Demurrer overruled. Reported in 
54 N. E. Rep. 865. 

Francis D. Newton et al. v. Henry H. Sprague et als. Petition to 
Superior Court, Suffolk County, in the nature of an action of 
tort to recover damages caused by the alleged filling up of a 
well belonging to plaintiffs. Pending. 

Elmore E. Locke v. Michael Tallent et al. and Metropolitan Park 
Commissioners, trustees. Action of contract in the Munic- 
ipal Court of Suffolk County. Trustees' answer filed. Dis- 
missed by agreement. 

H. Burr Crandall v. Charles Price, Superintendent. Action of 
tort for conversion. Superior Court, Middlesex County. 
Pending. 

William H. Bent et al. v. Woodward Emery et als. Petition to 
the Supreme Judicial Court for Suffolk County for a writ of 
injunction to restrain defendants from dredging out South 
Bay. Argued before full bench. Decree for plaintiff. 

Commonwealth v. Charles Linnehan. Middlesex County. Superior 
Court. Breach of contract growing out of construction of 
metropolitan sewer in Chelsea. Pending. 

Commonwealth v. John Sullivan. Middlesex County. Superior 
Court. Breach of contract growing out of construction of 
metropolitan sewer in Chelsea. Pending. 

7. State Board of 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 insane 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. 
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. 



1900.] PUBLIC DOCUMENT — No. 12. 157 

Same v. City of Worcester. Suffolk County. Pending. 

Same v. City of Cambridge. Suffolk County. Pending. 

Same v. City of Quincy e« 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. 

Settled for $114.21. 
Edward P. Shaw, Treasurer, v. Esau Cooper. Middlesex County. 

Pending. 
E. P. Shaw, Treasurer, v. Town of Dedham. Suffolk County. 

Pending. 

(b) Bastardy complaints brought under Pub. Sts., c. 85. 

Ellen F. Walsh v. Thomas B. Hanlon. Superior Court, Suffolk 

County. Pending. 
Jennie Harley v. William Minkle. Superior Court, Suffolk County. 

Verdict of guilty by consent. Defendant committed to jail. 

Pending. 
Mary Ann Mulligan v. William Dobbins. Roxbury District Court. 

Defendant bound over to Superior Court. Dismissed. 
Celia Harkins v. Walter Harrington. First District Court, Eastern 

Middlesex. Hearing. Defendant bound over to Superior 

Court. Pending. 



158 ATTORNEY-GENERAL'S REPORT. [Jan. 



MISCELLANEOUS CASES. 



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. 1883, 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 Builer ap- 
pointed receiver. Decree. 

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. AVilliam C. Spaulding of AYest 
Stockbridge was appointed by the court receiver in place of 
Mr. Hobbs. The new receiver has declared a dividend of 
sixteen per cent. Final decree. 

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. 



1900.] PUBLIC DOCUMENT — No. 12. 159 

Starkes Whiton et als., Board of Savings Bank Commissioners, 
petitioners, v. Globe Investment Company. Petition to the 
Supreme Judicial Court for Suffolk County, under the pro- 
visions of chapter 387 of the Acts of 1888, for an injunction 
and receiver. Injunction granted, and Henry A. Wyman 
appointed receiver. Pending. 

George S. Merrill, Insurance Commissioner, v. Patrons' Mntual 
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. Lehind, 
Esq., appointed receiver. Final decree. 

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. 

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. 

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 appoint- 
ment of a receiver. Final decree. 

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. Final 
decree. 

George S. Merrill, Insurance Commissioner, v. Guardian Life In- 
surance Company. Petition to the Supreme Judicial Court 
for Sufifolk County for an injunction and the appointment of 
a receiver. Injunction issued, and Frank D. Allen, Esq., 
appointed receiver. Pending. 



160 ATTORNEY-GENERAL'S REPORT. [Jan. 

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. Final decree. 

Richard P. O'Reily v. Samuel Dalton et ah. Petition to the Supreme 
Judicial Court for Suffolk County for a writ of certiorari, claim- 
ing 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. 

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. Final 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. 

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 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. 

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 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. 

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. Final decree. 



1900.] PUBLIC DOCUMENT — No. 12. 161 

George S. Merrill, Insurance Commissioner, v. the Old Colony 
Mutual Insurance Company. Petition to the Supreme Ju- 
dicial Court for Suffolk County for an injunction and the 
appointment of a receiver. Injunction issued, and Wil- 
liam B. French, Esq., of Boston appointed receiver. Final 
decree. 

Clara J. Sargent v. State Board of Lunacy and Charity. Superior 
Court, Essex County. Appeal on a complaint charging neg- 
lect of children under St. 1882, c. 18L 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. 

Joseph F. Scott, superintendent, 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. 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. 

Richard Graham v. Cattle Commissioners, Superior Court, Essex 
County. Petition for assessment of damages for killing 
horse. Appearance entered. Motion filed to dismiss. 
Settled for $35. 

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. Master appointed. Final decree. 

Horatio G. Herrick, Treasurer Danvers Hospital, v. Melancthorn 
Hanford et al. Action of contract to recover board at hospital. 
Settled. 

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. 



162 ATTORNEY-GENERAL'S REPORT. [Jan. 

George S. Merrill, Insurance Commissioner, v. 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. Final decree. 

Henry O. Smith et als. v. Inhabitants of Leicester and the Common- 
wealth. Bill in equity in the Superior Court for Worcester 
County to restrain town officers from raising money to pay 
expenses for damages caused by construction of State high- 
way in Leicester. Appearance filed. Pending. 

Attorney-General ex rel. Frederick L. Cutting, Insurance Com- 
missioner, 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. Final decree. 

Attorney-General ex rel. Frederick L. Cutting, Insurance Commis- 
sioner, V. Mercantile Mutual Accident Association. Petition 
to the Supreme Judicial Court for Suffolk County for an in- 
junction and receiver. Injunction granted, and C. E. Shat- 
tuck of Boston appointed receiver. Final decree. 

Attornej^-General ex rel. Frederick L. Cutting, Insurance Commis- 
sioner, V. Bay State Beneficiary Association, of Westfield. 
Petition to the Supreme Judicial Court for Suffolk County 
for an injunction and appointment of receiver. Injunction 
granted, and Henry C. Hyde, Esq., and Henry C. Bliss, 
Esq., both of West Springfield, appointed temporary receivers. 
Pending. 

Attorney-General ex rel. Frederick L. Cutting, Insurance Commis- 
sioner, V. World Accident Insurance Company. Petition to 
Supreme Judicial Court for Suffolk County for an injunction 
and a receiver. Injunction granted, and T. N. Perkins of 
Boston appointed receiver. Pending. 

Attorney-General ex rel. Frederick L. Cutting, Insurance Commis- 
sioner, V. the Massachusetts Masonic Life Association. Peti- 
tion 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. 

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 attor- 
ney. Pending. 



1900.] PUBLIC DOCUMENT — No. 12. 163 

Commonwealth v. the Boston Terminal Company. Two petitions 
to Superior Court of Suffolk County for assessment of dam- 
ages for land taken for new South Union Station. Pending. 

Attorney-General ex rel. Insurance Commissioner v. Berkshire 
Health and Accident Association. Information praying for 
an injunction and the appointment of a receiver. Injunction 
granted, and Alpheus Sanford, Esq., of Boston appointed 
receiver. Pending. 

Frederick L. Cutting, Insurance Commissioner, v. Industrial Mu- 
tual Accident Association. Petition to the Supreme Judicial 
Court for an injunction and the appointment of a receiver. 
Injunction granted. Company allowed to reinsure its risks. 

Commonwealth, by the Board of Savings Bank Commissioners, v. 
the Hampshire Savings Bank. Petition to the Supreme Judi- 
cial Court for an injunction and the appointment of a receiver. 
Injunction granted, and Richard W. Irwin, Esq., and Benja- 
min E. Cook, Jr., Esq., were appointed receivers. Pending. 

Attorney-General v. the Equitable Accident Insurance Association. 
Petition to the Supreme Judicial Court for an injunction and 
the appointment of a receiver. Injunction issued, and Wade 
Keyes, Esq., of Boston appointed receiver. Pending. 

Commonwealth v. Board of Public Works of Woburn. Violation 
of civil service rules. Referred to District Attorney Frederick 
N. Wier. Pending. 

Commonwealth v. Board of Water Commissioners of Chicopee. 
Violation of civil service rules. Referred to District Attor- 
ney Charles L. Gardner. Pending. 

Attorney-General ex rel. Insurance Commissioner v. Order of 
Fraternal Aid. Petition to the Supreme Judicial Court for an 
injunction and the appointment of a receiver. Injunction 
granted, and Winthrop H. Wade, Esq., of Boston appointed 
receiver. Pending. 

John A. MacDonald v. Commonwealth of Massachusetts. Petition 
to the Supreme Judicial Court of Suffolk County for a writ of 
error to reverse a judgment rendered for the Commonwealth 
on an indictment charging the plaintiff" with forging and utter- 
ing certain checks. Judgment affirmed. Reported in 173 
Mass. 322. Case taken to United States Supreme Court by 
writ of error. Pending. 

Frederick L. Cutting, Insurance Commissioner, v. the Greylock 
Beneficiary. Petition, under St. 1895, c. 340, for an injunc- 
tion and the appointment of a receiver. Injunction issued, 
and A. A. Folsom of Chelsea appointed receiver. Pending. 



164 ATTORNEY-GENERAL'S REPORT. [Jan. 

Selectmen of Danvers v. Trustees of Danvers Insane Hospital. 
Petition for the appointment of three commissioners under St. 
1898, c. 564, to determine the sum to be paid by the Com- 
monwealth for water provided to the Danvers Insane Hospital 
by the town of Danvers. George A. Blaney, Edwin Dresser 
and William Wheeler appointed commissioners. Pending. 

Attorney-General ex rel. Insurance Commissioner v. Ideal Benefit 
Association. Petition to the Supreme Judicial Court of Suf- 
folk Count}^ for an injunction and the appointment of a 
receiver. Injunction granted, and Alden P. AVhite of Salem 
appointed receiver. Final decree. 

Clarence Murphy v. Commonwealth. Petition to the Supreme 
Judicial Court for a writ of error. Argued before full bench. 
Decision ordering sentence to be reversed and petitioner to be 
resentenced under the law as it was prior to the passage of St. 
1895, c. 504. Reported in 172 Mass. 264. Prisoner sen- 
tenced accordingly. Exceptions taken. Argued before full 
bench. Exceptions overruled. Reported in 54 N. E. Rep. 
860. Case taken to United States Supreme Court by writ of 
error. Pending. 

Frederick L. Cutting, Insurance Commissioner, v. South Shore 
Masonic Mutual Relief Association of Massachusetts. Peti- 
tion to the Supreme Judicial Court for Suffolk County, under 
St. 1895, c. 340, for an injunction and the appointment of 
a receiver. Injunction issued, and J. H. Flint appointed 
receiver. Pending. 

Commonwealth by its Board of Savings Bank Commissioners v. 
Framingham Savings Bank. Petition to the Supreme Judicial 
Court for Suffolk County under St. 1894, c. 317, § 6, for an 
injunction and the appointment of a receiver. Injunction 
issued, and P. H. Cooney and A. V. Harrington appointed 
receivers. Pending. 

Globe Insurance Company v. Lexington. An action of contract 
in the Superior Court for Suffolk County for compensation 
for injuries alleged to have been sustained by the acts of the 
Gypsy Moth Commissioners. Trial before Bond, J. Find- 
ing for the defendant and report to the full court. Argued. 
Judgment on finding for defendant. Reported in 173 Mass. 6. 

Frederick L. Cutting, Insurance Commissioner, v. Supreme Coun- 
cil of United Fellowship. Petition to the Supreme Judicial 
Court for Suffolk County under St. 1895, c. 340, for an in- 
junction and the appointment of a receiver. Injunction issued, 
and Oliver Storer, Esq., of Boston appointed receiver. Pend- 
ing. 



1900.] PUBLIC DOCUMENT — No. 12. 165 

Attorney-General ex rel. Insurance Commissioner v. Massachusetts 
National Life Association. Petition to the Supreme Judicial 
Court for Suffolk County, under St. 1896, c. 515, § 6, for an 
injunction and the appointment of a receiver. Injunction 
issued. C Kress appointed receiver. Pending. 

Diego Le Donne, petitioner. Petition to the Supreme Judicial 
Court for Suffolk County for a writ of habeas corpus. Hear- 
ing, and case reported to the full court. Petition dismissed. 
Reported in 173 Mass. 550. 

City of Boston v. Boston Wharf Company. Petition to Superior 
Court of Suffolk County for assessment of damages for land 
taken for grade crossings on Congress Street. James R. 
Dunbar appointed auditor. 

Kaiser Hat and Cap Company. Claim for corporation tax for 
1897. Company in insolvency. Claim proved. Pending. 

Boston Enterprise Manufacturing Company. Claim for corpora- 
tion tax for 1897. Company in insolvency. Claim proved. 
Paid. 

Stiles & Winslow Leather Company. Claim for corporation tax 
for 1897. Company in insolvency. Claim proved. Pending. 

Westborough Insane Asylum v. John H. Sherburn. Claim for 
board of Fannie L. Scott at asylum. Settled by payment 
of $1,740. 

Edward F. O'Brien, petitioner. Petition to the Circuit Court of 
the United States for a writ of habeas corpus. Petition denied. 
Reported in 95 Fed. Rep. 131. 

William B. Tyler v. Judges of the Court of Registration. Peti- 
tion to the Supreme Judicial Court of Suffolk County for a 
writ of prohibition to prohibit said court from proceeding in 
the registration of a certain parcel of land. Argued before 
Supreme Judicial Court. Petition denied. 

Westborough Insane Asylum v. Alice H. Knight. Claim for board 
of pauper in hospital. Referred to N. N. Jones for collection. 

Attorney-General ex rel. v. Letter Carriers' Relief Association. 
Petition to the Supreme Judicial Court for an injunction and 
the appointment of a receiver. Injunction granted, and Ralph 
A. Stewart of Worcester appointed receiver. Final decree. 

Attorney-General ex rel. v. Avellino and Province Society. Peti- 
tion to the Supreme Judicial Court for an injunction for non- 
compliance with law. Company agreed to comply with law. 
Petition dismissed by agreement. 

Walter J. Bartlett, petitioner. Petition to the Supreme Judicial 
Court of Suffolk County for a writ of habeas corpus. Hear- 
ing. Petition denied. 



166 ATTOENEY-GENERAL'S REPORT. [Jan. 

Edward A. Brackett et al., Commissioners of luland Fisheries and 
Game, v. Lizzie B. S. Wyman. Petition to the Supreme 
Judicial Court of Suffolk County, under St. 1899, c. 103, for 
an order to compel the respondent to comply with an order 
of said commissioners. Decree entered ordering compliance 
with the statute. 

Frank S. Harrington, petitioner. Petition to the Supreme Judi- 
cial Court of Suffolk County for a writ of habeas corpus. 
Petition dismissed by agreement. 

Francis D. Corcoran, petitioner. Petition to the Supreme Judi- 
cial Court of Suffolk County for a writ of habeas corpus. 
Petition dismissed by agreement. 

Frederick' L. Cutting, Insurance Commissioner, v. Firemen's Fire 
Insurance Company. Petition to the Supreme Judicial Court 
of Suffolk County for an injunction to restrain the defendant 
from removing its books and papers from the Commonwealth, 
and the appointment of a receiver to recover its capital stock 
distributed without authority of law. Injunction issued. 
Defendant recovered its capital stock and deposited it with 
the International Trust Company, as trustee. Pending. 

Willard N. Elmer, petitioner. Petition to the Supreme Judicial 
Court of Hampden County for a writ of habeas corpus. Peti- 
tion dismissed by agreement. 

Thomas White, petitioner. Petition to the Supreme Judicial Court 
of Suffolk County for a writ of habeas corpus. Petition dis- 
missed by agreement. 

Hosea M. Kuowlton, Attorney-General, ex rel. v. Merchants and 
Manufacturers Life Association. Petition to the Superior 
Court of Suffolk County for an injunction and the appoint- 
ment of a receiver. Temporary injunction issued. Case 
reserved by Fessenden, J., for full court. Pending. 

Everett D. Wilkes, petitioner. Petition to the Supreme Judicial 
Court of Suffolk County for a writ of habeas corpus. Petition 
dismissed by agreement. 

Charles E. Lane, petitioner. Petition to the Supreme Judicial 
Court of Suffolk County for a writ of habeas corpus. Petition 
dismissed by agreement. 

Luther B. Brusie, petitioner. Petition to the Supreme Judicial 
Court of Suffolk County for a writ of habeas corpiis. Petition 
dismissed by agreement. 

Patrick C. Toohy, petitioner. Petition to the Superior Court of 
Suffolk County for discharge from Massachusetts Hospital for 
Dipsomaniacs and Inebriates, under St. 1899, c. 325. Motion 
for issue to jur}^ denied. Petition dismissed. 



1900.] PUBLIC DOCUMENT — No. 12. 167 

Philip S. Hagar, petitioner. Petition to the Supreme Judicial 
Court of Suffolk County for a writ of habeas corpus. Pend- 
ing. 

Rachel Church v. C. W. Marshall and Gypsy Moth Commissioners, 
trustees. Action of contract in District Court of Eastern 
Middlesex. Abandoned. 

Herberts. Page et al., petitioners. Petition to the Probate Court 
of Suffolk County for the appointment of a guardian for Alvin 
Page, an insane person chargeable to the State. Pending. 

Zenas S. Arnold, petitioner. Petition to the Supreme Judicial 
Court of Suffolk County for a writ of habeas corpus. Petition 
dismissed by agreement. 

New England Mutual Accident Association, petitioners. Petition 
for appointment of receiver. Thomas Weston, Esq., of Bos- 
ton, appointed receiver. Pending. 

Boston V. Commonwealth. Petition to the Supreme Court of Suf- 
folk County for transfer of William J. Taylor, an indigent 
child having no settlement, to custody of State Board of Char- 
ity. Petition dismissed. 

Boston V. Commonwealth. Petition to Supreme Court of Suffolk 
County for transfer of Hyman Gold, an indigent child having 
no settlement, to State Board of Charity. Pending. 

Civil Service Commissioners v. Street Commissioners of Boston. 
Complaint for violation of civil service rules by employment 
of John A. Kilroy as messenger. Disposed of by resignation 
of Kilroy. 

Henry W. Bragg et al. v. Commonwealth. Petition to Superior 
Court of Suffolk County for allowance of claim of auditors for 
examination into affairs of Massachusetts Benefit Life As- 
sociation. Pending. 

John F. Green, petitioner. Petition to Supreme Judicial Court of 
Suffolk County for writ of habeas corpus. Hearing, petition 
denied. 

James P. Nolan, petitioner. Petition to Supreme Judicial Court of 
Suffolk County for writ of habeas corpus. Pending. 

Lyman School for Boys v. Jay H. Morgan. Note for $50 for ser- 
vices of boy placed out. Pending. 

Worcester Lunatic Hospital v. Ralph W. Bartlett. Board of 
Nancy Sullivan in hospital. Pending. 

Commonwealth v. Fred McQuestin. Claim for tide water displace- 
ment. Pending. 

Benjamin F. Bridges v. Edward D. Bean, Municipal Court, Suf- 
folk County. Claim for goods furnished to defendant. 
Pending. 



168 ATTORNEY-GENERAL'S REPORT. [Jan. 

Commonwealth v. Waltham. Claim for board of William F. 

Murray in hospital for epileptics. Pending. 
Commonwealth v. Alexander B. Hough. Claim for board of Julia 

F. Hough at Westborough Insane Hospital. Pending. 
Commonwealth v. Henry Chadbourn. Claim for board of Mary 

L. Chadbourn at Westborough Insane Hospital. Settled by 

trustees of hospital. 
Commonwealth v. Gloucester Water Supply Company. Corpora- 
tion tax 1895. Pending. 
Commonwealth v. Central Oil and Gas Stove Company. Failure 

to file copy of its charter with Commissioner of Corporations. 

Copy of charter filed. 



1900.] 



PUBLIC DOCUMENT — No. 12. 



169 



COLLECTIONS. 



Collections have been made by this department as follows : — 

Corporation taxes for the year 1898, overdue and referred 
by the Treasurer of the Commonwealth to the Attorney- 
General for collection, $50,212 40 

Interest on same at penal rate of twelve per cent., . . 2,282 05 

Costs, 824 48 

Miscellaneous, 3,143 94 

Total, $56,462 87 

The following table shows a detailed statement of the same : — 





Collected on 








Account of 








Corporation Tax 


Interest. 


Total. 




for 1898. 






A. B. & E. L Shaw Company, 


S749 98 


$15 00 


$764 98 


A. S. Dexter & Co. Incorporated, . 


47 07 


2 82 


49 89 


Alexander Hill Bedding Company, 


47 00 


- 


47 00 


American Citizen Company, . 


78 45 


1 60 


80 05 


American Stave and Cooperage 








Company, 


331 05 


6 29 


337 34 


Andover Press (Limited), 


9 41 


17 


9 58 


Arlington Hotel Company, . 


31 38 


1 38 


32 76 


Atlantic Telegraph Company of 








Massachusetts, .... 


78 45 


1 52 


79 97 


Austin & Winslow-Gallagher Com- 








pany, 


78 45 


4 70 


83 15 


Austin Furniture Company, . 


268 06 


4 55 


272 61 


American Cultivator Publishing 








Company, 


156 90 


8 16 


165 06 


B. F. Lewis & Son Company, 


156 90 


10 04 


166 94 


B. H. Woodsum Company, . 


144 34 


6 35 


150 69 


Bates Machine Company, 


1,000 00 


- 


1,000 00 


Bay State Chair Company Incor- 








porated, 


133 36 


6 00 


139 36 


Bay State Metal Works, . 


219 66 


18 01 


237 67 


Berkshire Spar and Quartz Com- 








pany, 


413 82 


47 93 


461 75 


Blanchard Machine Company, 


133 36 


7 78 


141 14 


Block Plant Electric Light Com- 








pany 


29 81 


57 


30 38 


Bolles & Wilde Company, 


470 70 


13 02 


483 72 



170 ATTORNEY-GENERAL'S REPORT. [Jan. 





Collected on 








Account of 








Corporation Tax 


Interest. 


Total. 




for 1898. 






Boston Advertising Company, 


$75 31 


$7 15 


$82 46 


Boston and Bay State Die Company, 


156 90 


6 90 


163 80 


Boston Co-operative Buyers Asso- 








ciation, 


156 90 


7 00 


163 90 


Boston Parcel Delivery Company, . 


784 50 


40 02 


824 52 


Boston Traveller Company, . 


277 71 


29 16 


306 87 


Bracketts Market Corporation, 


137 28 


5 91 


143 19 


Brockway-Smith Corporation, 


690 36 


13 81 


704 17 


Brookfield Brick Company, . 


138 07 


13 25 


151 32 


Brooks Bank Note Company, 


701 34 


17 77 


719 11 


C. R Brewer Lumber Company, . 


62 76 


1 07 


63 83 


C. W. Mutell Manufacturing Com- 








pany, 


58 83 


3 31 


62 14 


Cambridge Co-operative Society, . 


38 09 


2 28 


40 37 


Camerons Pharmacy, 


313 80 


20 36 


334 16 


Cape Ann Granite Railroad Com- 








pany, 


313 80 


18 61 


332 41 


Carter Paper Company, . 


78 45 


1 41 


79 86 


Charles A. Millen Company, . 


109 83 


10 54 


120 37 


Charles A. White Company, . 


19 61 


96 


20 57 


Charles S. Brown Company, . 


400 09 


14 94 


415 03 


Chequasset Lumber Company, 


906 09 


39 86 


945 95 


Chicopee Gas Light Company, 


109 83 


6 40 


116 23 


Child Acme Cutter and Press Com- 








pany, 


141 21 


6 21 


147 42 


Childs & Kent Express Company, . 


211 81 


10 76 


222 57 


City Ice Company, .... 


123 95 


4 69 


128 54 


Coates Clipper Manufacturing 








Company, 


212 59 


12 33 


224 92 


Cobb-Buzzell Company, . 


862 95 


17 30 


880 25 


Coburn Stationery Company, . 


81 58 


4 90 


86 48 


Columbia Electric Engineering 








Company, ..... 


15 69 


31 


16 00 


Columbia Engraving Company, . 


112 96 


4 97 


117 93 


Composite Brake Shoe Company, . 


470 70 


19 58 


490 28 


Computing Scale Manufacturing 








Company, 


57 66 


1 10 


58 76 


Consolidated Refrigerating Com- 








pany, 


235 35 


22 36 


257 71 


Co-operative Printing Society, 


9 10 


54 


9 64 


Cunningham Lumber Company, . 


935 12 


40 52 


975 64 


Cyclopaedia Publishing Company, 


637 01 


62 65 


699 66 


Daily News Company, . 


39 22 


1 65 


40 87 


Damon Brick Company, . 


148 34 


8 60 


156 94 


DeLand Medical Company, . 


62 76 


- 


62 76 


Dorchester Building Material Com- 








pany, 


447 16 


10 56 


457 72 


Dunbar Mills Company, . 


831 57 


24 96 


856 53 


Dunne Lyceum Bureau, . 


15 69 


63 


16 32 


E. A. Drowne Company, 


156 90 


2 82 


159 72 


E. C. Manufacturing Company, 


194 55 


4 60 


199 15 


E. H. Saxton Company, . 


141 21 


7 39 


148 60 


E. P. Sanderson Company, 


779 79 


24 95 


804 74 



1900.] 



PUBLIC DOCUMENT — No. 12. 



171 





Collected on 








Account of 








Corporation Tax 


Interest. 


Total. 




for 1898. 






E. W. Noyes Company, . 


$98 06 


$4 97 


$103 03 


Eastern Printing and Engraving 








Company, 


86 29 


3 68 


89 97 


Evening Gazette Company, . 


117 67 


7 06 


124 73 


F. C. von der Heide Company, 


156 90 


6 83 


163 73 


F. P. Norton Cigar Company, 


313 80 


30 33 


344 13 


Family Messenger Company, 


78 45 


2 12 


80 57 


Fitchburg & Suburban Street Rail- 








way Company, .... 


300 62 


12 00 


312 62 


Foxborough Foundry & Machine 








Company, 


118 45 


2 25 


120 70 


Franklin Educational Company, . 


141 21 


15 31 


156 52 


Gale Lumber Company, . 


249 47 


3 99 


253 46 


Garrett Ford Company, . 


188 28 


3 80 


192 08 


Gazette Company, .... 


282 42 


11 95 


294 37 


George H. Wood Company, . 


127 08 


5 55 


132 63 


George N. Seaman Company, 


141 21 


6 21 


147 42 


George P. Staples & Co., Incorpo- 








rated, 


784 50 


47 00 


831 50 


Gilman Snow Guard Company, 


78 45 


1 96 


80 41 


Globe Foundry Company, 


101 98 


4 41 


106 39 


Granite Shoe Company, . 


251 04 


9 20 


260 24 


Gregory & Brown Company, . 


329 49 


14 49 


343 98 


H. B. Stevens Company,. 


186 31 


5 78 


192 09 


H. F. Ross Company, 


470 70 


13 34 


484 04 


Hampden Trap Rock Company, . 


100 41 


- 


100 41 


Hampshire Cycle Manufacturing 








Company, 


25 00 


- 


25 00 


Heliotype Printing Company, 


376 56 


16 19 


392 75 


Henry C. Hunt Company, 


7 84 


16 


8 00 


Henry C King Company, 


313 80 


13 70 


327 50 


Henry Woods Sons Company, 


345 18 


12 46 


357 64 


Higgins & Gifford Boat Manufact- 








uring Company, .... 


120 96 


7 06 


128 02 


Highland Foundry Company, 


1,059 07 


127 95 


1,187 02 


Hill, Whiting & Wood Company, . 


345 18 


7 25 


352 43 


Hingham Seam Face Granite Com- 








pany, 


107 94 


3 99 


111 93 


Holyoke Newspaper Publishing 








Company, 


86 29 


1 38 


87 67 


Home Guaranty Mutual Insurance 








Company, 


666 82 


38 68 


705 50 


Howe Lumber Company, 


659 29 


28 78 


688 07 


Ice Bait and Fish Company, . 


62 76 


2 51 


65 27 


Interstate Law Company, 


23 53 


94 


24 47 


Investment Corporation, 


470 70 


_ 


470 70 


J. H. Keenan Company, . 


235 35 


3 76 


239 11 


J. P. & W. H. Emond, Incorporated, 


235 35 


10 36 


245 71 


Johnson Manufacturing Company, 


2,014 59 


63 69 


2,078 28 


K & W Company, .... 


78 45 


1 49 


79 94 


Kelly Shoe Company, 


141 21 


6 21 


147 42 


Kennedy & Sullivan Manufacturing 








Company, 


566 40 


24 73 


591 13 



172 



ATTORNEY-GENERAL'S REPORT. 



[Jan. 



Collected on 

Account of 

Corporation Tax 

for 1898. 



Interest. 



Total. 



Kimball Brothers Company, . . $1,490 55 

L. E. Fletcher Company, . . 172 59 

L. H. Goodnow Foundry Company, 87 65 
Lamprey Boiler Furnace Mouth 

Protector Company, . . . 19 61 

Lang & Jacobs Company, . . 90 21 

Lexington Gas Light Company, . 135 01 

Lexington Print Works, . . 437 75 

Lovevvell Shoe Company, . • 266 73 

Low Art Tile Company, . . 235 35 

Lynn News Publishing Company, . 78 45 

Lyons Granite Company, . . 39 22 

M. S. Swift Sons, Incorporated, . 313 80 
Mansfield & Easton Street Railway 

Company, 94 14 

Mansfield & Norton Street Railway 

Company, 47 07 

Mansfield Co-operative Furnace 

Company, 8 62 

Manufacturers Gazette Publishing 

Company, 37 65 

Massachusetts Glove Manufactur- 
ing Company, .... 109 83 

Massachusetts Investment Com- 
pany, . . . . . . 15 69 

McLean Shoe Company, . . . 54 91 

Melrose Hardware Company, . 78 45 

Merrill Piano Company, " . . 784 50 

Merritt Electric Company, . . 188 28 

Milford Pink Granite Company, . 363 22 
Monson Co-operative Creamery 

Association, 15 06 

Morning Mail Corporation, . . 94 14 
Mystic Wharf and Storage Com- 
pany, 1,142 23 

Nantasket Chute Company, . . 290 46 

Natick Gas Light Company, . . 106 69 

New England Reed Company, . 80 01 

Newburyport Herald Company, . 67 46 
Norfolk Southern Street Railway 

Company 1,569 00 

Norfolk Telephone Company, . 156 90 
Norton & Attleborough Street Rail- 
way Company, . . . . j 502 08 
Norton & Taunton Street Railway 

Company, 428 33 

O. D. Pillsbury Company, . . 31 38 
Oliver & Howland Company, . 138 07 
Peoples Combination Clothing Com- 
pany, I 235 35 

Pilgrim Iron Foundry Companv, .1 64 32 

Plymouth Rubber Company, . " . ' 75 31 

Plymouth Stove Foundry Company, 121 59 



$93 73 

10 12 

1 39 

76 

3 97 

13 86 
19 25 
15 27 

14 11 

4 24 
63 

33 20 

4 14 

2 08 
28 

1 96 

5 09 

61 

2 42 

3 36 
74 74 

8 28 

11 62 

29 
1 88 

28 94 

1 70 

4 67 

2 76 

59 63 

3 10 

22 09 

18 85 
1 70 

6 00 

10 74 

1 72 

3 00 

5 39 



$1,584 28 

182 71 

39 04 

20 37 

94 18 

148 87 

457 00 

282 00 

249 46 

82 69 

39 85 

347 00 

98 28 

49 15 

8 90 

39 61 

114 92 

16 30 

57 33 

81 81 

859 24 

196 56 

374 84 

15 35 

96 02 

1,171 17 

200 46 

108 39 

84 68 

70 22 

1,628 63 
160 00 

524 17 

447 18 

33 08 

144 07 

246 09 

66 04 

78 31 

126 98 



1900.] 



PUBLIC DOCUMENT — No. 12. 



173 



Collected on 

Account of 

Corporation Tax 

for 1898. 



Interest. 



Total. 



Pocassit Hat Company, . 

Putnam Company, . 

Quaboag Steamboat Company, 

Quincy Quarry Company, 

R. H. Long Shoe Manufacturing 

Company, . . . . 
Richard Manufacturing Company 
Ridgway Furnace Company, . 
Rolfe Provision and Grocery Com- 
pany 

Samuel Enrich Company, 
Scandia Granite Works, . 
Seymour Knapp Warren Company 
Shady Hill Nursery Company, 
Shortstory Publishing Company, 
Smith Hadley Shirt Company, 
Somerville Citizen Company, 
Spring Lane Press, . 
Springfield Elevator Pump Com- 
pany 

St. Regis Leather Company, . 
Standard Horse Shoe Company, 
Stockbridge Marble Company, 
Sumner Druff and Chemical Com- 



pany, 

Swedish Razor Company, 
Telegram Publishing Company, 
Thompson & Odell Company, 
Union Loan and Trust Company, 
W. E. Rice Company, 
Wade & Reed Company, 
Walnut Publishing Company, 
Wellington Furniture Company, 
Westfield Brick Company, 
Weymouth Seam Face Granite Com 

pany, 

White Wilbur Shoe Company, 
Whittier Drug Company, 
William H. Burns Company, . 
William H. King Sons Company, 
Williams Table and Lumber Com 



pany, 

Woodward & Brown Piano Com 

pany, 

Worcester Steam Heating Company 
Ziegler Electric Company, 



$163 17 

313 80 

48 01 

926 49 

196 12 

119 24 

188 28 

78 45 

313 80 

35 30 

24 31 

549 15 

282 42 

86 29 

53 34 
58 83 

156 27 

392 25 

320 86 

73 11 

188 28 

73 74 

31 38 
274 57 
784 50 
229 85 
941 40 

78 45 

131 79 

137 25 

98 84 

100 00 

54 91 
1,856 12 

86 29 

216 52 

353 02 

32 94 

267 77 



$5 66 

14 66 

4 61 

18 53 

6 31 

6 60 

7 72 

2 35 
14 13 

1 46 
46 

23 80 

8 16 

2 58 
2 51 
2 90 

6 82 
16 61 
14 01 

1 46 



11 

1 

21 
41 



67 
37 
56 
17 

02 
10 04 
56 48 



4 

11 

5 



5 74 

2 71 

81 05 
9 06 

12 99 

39 74 

1 32 

11 78 



$168 83 

328 46 

52 62 

945 02 

202 43 
125 84 
196 00 

80 80 

327 93 

36 76 

24 77 

572 95 

290 58 

88 87 

55 85 

61 73 

163 09 
408 86 
334 87 

74 57 

199 95 

75 11 
31 94 

295 74 
825 52 
239 89 
997 88 
83 03 
143 26 
143 24 

104 58 

100 00 

57 62 

1,937 17 

95 35 

229 51 

392 76 

34 26 

279 55 



$50,212 40 



f2,282 05 



f 52,494 45 



174 



ATTORNEY-GENERAL'S REPORT. 



[Jan» 



Miscellaneous Collections. 

Amesbury & Salisbury Gas Company, penalty for existence 
of sulphuretted hydrogen in gas, 

Boston Enterprise Manufacturing Company, corporation tax 
for 1897 

William Piper, on account of merchandise bought of Massa- 
chusetts State Prison, 

Hotel Reynolds Company, fee for filing certificate of con- 
dition under St. 1891, c. 341, 

Chicopee Gas Light Company, fee for filing certificate of con- 
dition required by Pub. Sts., c. 106, § 51, . 

City of Chicopee, board of Jan Stuszyk, an insane pauper, at 
Northampton Insane Hospital, 

Evening Gazette Company, fee for filing certificate of con- 
dition required by Pub. Sts,, c. 106, § 54, 

Milford Electric Light and Power Company, penalty for 
failure to file on time report required by St. 1886, c. 346, 
§2, 

W. C. Young Manufacturing Company, fee for filing cer 
tificate of condition required by Pub. Sts., c. 106, § 54, 

Boston Advertising Company, fee for filing certificate of con- 
dition required by Pub Sts., c. 106, § 54, . 

Harcourt Paper Box Company, fee for filing certificate of 
condition required by Pub. Sts,, c. 106, § 54, 

John N. Rieger Company, fee for filing certificate of con 
dition required by Pub. Sts., c. 106, § 54, . 

James E. Donahue, board of Ann Donahue, an insane pauper 
in Danvers Insane Hospital, 

Reading Co-operative Association, fee for filing certificate of 
condition required by Pub. Sts., c. 106, § 54, 

Morgan Company, fee for filing certificate of condition re 
quired by Pub. Sts., c. 106, § 54 

Merrimac Paper Company, fee for filing certificate of con 
dition required by Pub Sts., c. 106, § 54, . 

College Athlete Society, ibid., 

F. P. Norton Cigar Company, ibid., 

Co-operative Printing Society, fee for filing certificate of con 
dition required by Pub. Sts., c. 106, § 54, . 

Lawrence, city of, for board of John Lilley in almshouse. 

North Andover Mills, fee for filing certificate of condition 
required by Pub. Sts., c. 106, § 54, .... 

P. P. Emory Manufacturing Company, ibid, (two certificates) 

American Cultivator Publishing Company, ibid , . 

Arlington Co-operative Association, The, ibid., 

Boston Blower Company, ibid., 

Boston Dental Manufacturing Company, ibid., 

Boston Exploration Company, ibid., .... 



flOO 00 


25 94 


5 00 


5 00 


5 00 


285 07 


5 00 


5 00 


5 00 


5 00 


5 00 


5 00 


130 00 


5 00 


5 00 


5 00 


5 00 


5 00 


5 00 


48 00 


5 00 


10 00 


5 00 


5 00 


5 00 


5 00 


5 00 



1900.] PUBLIC DOCUMENT — No. 12. 175 

Brookfield Brick Company, $5 00 

Carter, Rice & Co. Corporation, ibid.j 5 00 

Consumers Co-operative Association, ibid., .... 5 00 

Cottage City Gas and Electric Light Company, The, ibid.^ . 5 00 

Dunbar Mills Company, The, ibid., 6 00 

Eureka Ruling and Binding Company, ibid., .... 5 00 

George P. Staples & Co., Incorporated, ibid., .... 5 00 

Henry C. King Company, ibid., 5 00 

J. P. Jordan Paper Company, ibid., 5 00 

Jewett Piano Company, ibid., ....... 5 00 

L. E. Knott Apparatus Company, ibid., 5 00 

Lynn Ice Company, The, ibid., 5 00 

Mansfield Co-operative Furnace Company, ibid., ... 5 00 

Monarch Horse Nail Company, ibid., 5 00 

New England Dredging Company, 5 00 

New England Rubber Company, ibid., 5 00 

Newton Machine Company, ibid., 5 00 

Oak Grove Creamery Company, ibid., 5 00 

Old Colony Boot and Shoe Company, ibid., .... 5 00 

Springfield Elevator and Pump Company, The, ibid., . . 5 00 

Swett & Lewis Company, ibid, 5 00 

W. D. Wilmarth & Co. Corporation, ibid, (two certificates), . 10 00 

Westfield Brick Company, ibid., 5 00 

Blanchard Optical Company, ibid., 6 00 

Cutter Tower Company, ibid., 5 00 

Dean Whitney Elevator Company, The, ibid, .... 5 00 

Mattakessett Hall Association, ibid., ..... 5 00 

Med way Electric Light and Power Company, The, ibid., . 5 00 

Sun Printing Company, The, ibid., 5 00 

T. F. Little Oil Company, The, ibid., 5 00 

William G. Bassett v. estate of Asenath Alvord, execution, . 52 90 
Cofran, Samuel M., estate, amount of collateral inheritance 

tax, 471 00 

Investment Corporation, fee for filing certificate of condition, 5 00 

Peter Wood Dyeing Company, ibid., 5 00 

Amesbury and Salisbury Gas Company, inspector of gas and 

gas meters tax, 6 03 

Westborough Insane Hospital v. John H. Shurburn, guardian, 

board of Fannie L. Scott in hospital, 1,740 00 

Suspension Transportation Company, fee for filing certificate 

of condition, 5 00 

$3,143 94 



176 



ATTORNEY-GENERAL'S REPORT. 



[Jan, 



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1900.] 



PUBLIC DOCUMENT— No. 12. 



177 




178 



ATTORNEY-GENERAL'S REPORT. 



[Jan. 





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1900.] PUBLIC DOCUMENT — No. 12. 179 



EULES OP PEACTICE IN INTERSTATE 
EEJSfDITION. 



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. 

(6) 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. 

(h) The nature of the crime charged, with a reference, when 



180 ATTORNEY-GENERAL'S REPORT. [Jan. 

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- 
fied copies of papers, in conformity with the above rules, must be 
furnished. 



1900.] PUBLIC DOCUMENT — No. 12. 181 

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.