PUBLIC DOCUMENT .... .... No. 12,
Cnmmtrnfofalt!^ ai Hassafljttsttts.
REPORT
ATTOEISTET- QENEKAL
Year ending January 17, 1900.
^°^^LmE^,^3 op
THE
""^°««HV^OB«,«,
L.
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.
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PUBLIC DOCUMENT— No. 12.
177
178
ATTORNEY-GENERAL'S REPORT.
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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.
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