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

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



Coramontofalll^ of glassat^MSitts. 



REPORT 



ATTOEI^ET- G-ENEEAL 



Year ending January 16, 1901, 



BOSTON : 

WRIGHT & POTTER PRINTING CO., STATE PRINTERS, 

18 Post Office Square. 

1901. 



C0mnt0ntotaltlj a( gtassatl^wsitts. 



Office of the Attorney-General, 
Boston, Jan. 16, 1901. 

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. 



TABLE OF CONTENTS. 



PAGE 

Roster, vii 

Appropriation and Expenditures, viii 

Cases attended to by this Office, ix 

Capital Cases x 

The Office of the Attorney-General, xiii 

Cases in the Federal Courts, xiv 

Statutes relating to Costs in Criminal Cases, xv 

The Land Registration Act, xv 

The Death Penalty, xviii 

The Collateral Inheritance Tax, xix 

Enforcement of Civil Service Laws and Regulations, . . . xx 

Land Damage Cases, xx 

Opinions of the Attorney-General, xxi 

Opinions, 1 

Opinions upon Applications for Leave to file Informations, . .119 

Informations at the Relation of the Treasurer, .... 128 

Informations at the Relation of the Commissioner of Corporations, 132 

Informations at the Relation of Private Persons, .... 132 

Applications not granted, 133 

Grade Crossings, 134 

Corporate Applications for Dissolution, 143 

Corporations required without Suit to file Tax Returns, . . . 144 

Corporations required without Suit to file Certificate of Condition, 147 

Collateral Inheritance Tax Cases, 148 

Public Charitable Trusts, 165 

Land Damage Cases arising from the Alteration of Grade Crossings, 167 
Suits conducted in Behalf of State Boards and Commissions, . .169 

Metropolitan Park Commission, 169 

Metropolitan Sewerage Commission, 173 

Metropolitan Water Board, 174 

Massachusetts Highway Commission, 18(* 

Board of Harbor and Land Commissioners, . . .180 

Miscellaneous Cases from Above Commissions, . . . 181 
Cases arising under the Act limiting the Height of Buildings 

in the Vicinity of the State House, 182 

State Board of Charity, 182 

Miscellaneous Cases 184 

Corporation Tax Collections, ........ 194 

Miscellaneous Collections, 198 

Extradition and Interstate Rendition, 200 

Rules of Practice in Interstate Rendition, 203 



Commonfa^altl^ oi '^mBRd^n^dk, 



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



Attorney- General. 
ROSEA M. KNOWLTON, of New Bedford. 

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

Metropolitan Park Commission. 
Abolition of Grade Crossings. 
Criminal Cases. 

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

Metropolitan Sewerage Commission. 
Harbor and Land Commissioners. 

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. — Land Damage Cases. 

Collateral Inheritance Tax. 

FREDERICK H. NASH of Cambridge. 
Special Assignments. — Commissions and State Boards pother [than 

those enumerated above. 
Prerogative Writs. 
Extradition and Interstate Rendition. 
Receiverships. 
Corporations. 
Collections. 



Clerk. 
LOUIS H. FREESE of Chelsea. 



viii ATTORNEY-GENERAL'S REPORT. [Jan. 1901. 

Statement of Appropriation and Expenditures. 
Appropriation for 1900, $36,000 00 

Expenditures. 
For law library, 885 35 

For salaries of assistants, 14,500 00 

For additional legal services, 1,248 00 

For clerk and stenographers, 4,627 18 

For office expenses, 3,261 26 

For court expenses,* 2,959 15 

Total expenditures, f27,480 94 

-Costs collected, 851 46 

Net expenditure, $26,629 48 

* Of this amount, $851.46 has been collected as costs of suitsjand paid to the 
Treasurer of the Commonwealth. 



Commoitto^altl^ oi IStassat^s^etts^ 



Office of the Attorney-General, 
Boston, Jan. 16, 1901. 
To the Oenercd 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 1,801, are tabulated below : — 

Bastardy complaints, . . . 2 

Collateral inheritance tax cases, 247 

Corporate collections made without suit, 140 

Corporation returns enforced without suit, 119 

Dissolutions of corporations, voluntary petitions for, ... 69 

Extradition and interstate rendition, 42 

Grade crossings, petitions for abolition of, 160 

Height of buildings, limitation of, cases arising therefrom, . . 27 
Informations at the relation of the Commissioner of Corporations, 13 
Informations at the relation of private persons, .... 4 
Informations, applications for, considered and not granted, . . 5 
Informations at the relation of the Treasurer and Receiver-Gen- 
eral, 114 

Indictments for murder, 14 

Land-damage cases arising through the alteration of grade cross- 
ings, 25 

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 the Massa- 
chusetts Highway Commission, 11 

Land-damage cases arising from the taking of land by the Metro- 
politan Park Commission, 159 

Land-damage cases arising from the taking of land by the Metro- 
politan Sewerage Commission, 18 

Land-damage cases arising from the taking of land by the Metro- 
politan Water Board, 241 

Miscellaneous cases arising from the work of the above-named 

commissions, 10 

Miscellaneous cases, 342 

Public charitable trusts, 21 

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



X ATTOENEY-GENERAL'S REPORT. [Jan. 

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

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 
fled to Italy, where be has since remained. At the request 
of the United States he has been arrested and held for trial 
there. Depositions for that purpose were prepared by Oliver 
Stevens, district attorney, and forwarded to the Italian court 
to be used in his trial. He was tried there, found guilty 
and sentenced to prison for seven years. 

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. Berry and Harry J. 
Jaquith were assigned by the court as counsel for the de- 
fendant. Subsequently the district attorney entered a nolle 
pt'osequi; and an indictment was found for manslaughter, 
to which the defendant pleaded guilty, and on Feb. 21, 1900, 
was sentenced to State Prison for not less than ten nor more 
than twelve years. The case was in charge of Oliver 
Stevens, district attorney. 

William H. F. Kelley of Lowell, indicted in Middlesex 
County, October, 1899, for the murder of Theresa Kelley, 
at Lowell, June 30, 1899. On Nov. 8, 1899, he was ar- 
raigned, and pleaded not guilty. Nathan D. Pratt and John 
J. Harvey of Lowell were assigned by the court as counsel 
for the defendant. On Feb. 21, 1900, 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 Fred N. Wier, district attorney. 

Karop Kapigian of Fitchburg, indicted in Worcester 
County, October, 1899, for the murder of Nishan Harou- 



1901.] PUBLIC DOCUMENT — No. 12. xi 

tiniaD, at Fitchburg, Aug. 17, 1899. On Oct. 30, 1899, he 
was arraigued, and pleaded not guilty. John H. McMahon 
and Daniel Phalen were assigned by the court as counsel for 
the prisoner. On Feb. 5, 1900, the prisoner was tried by a 
jury before Hopkins and Bell, JJ., and a verdict of guilty 
of murder in the second degree was rendered. On Feb. 16, 
1900, the prisoner was sentenced to State Prison for life. 
The trial of the case was conducted by Rockwood Hoar, 
district attorney. 

Hal a. Hollingsavorth 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 w^ere assigned by the court as counsel for the de- 
fendant. On Oct. 31, 1900, he retracted his plea of not 
guilty, and pleaded guilty of manslaughter. The plea was 
accepted by the Commonwealth, and he was thereupon sen- 
tenced to State Prison for not less than twelve nor more than 
fifteen years. The case was in charge of Rockwood Hoar, 
district attorney. 

Martha Williams of Attleborough, indicted in Bristol 
County, November, 1899, for the murder of Meletta Wil- 
liams, at Attleborough, Oct. 4, 1899. On Nov. 23, 1899, 
she was arraigned, and pleaded not guilty. Percy A. 
Bridgam of Boston appeared for the prisoner. On March 
12, 1900, she retracted her plea of not guilty, and pleaded 
guilty of murder in the second degree. The plea was 
accepted by the Commonwealth, and she was thereupon sen- 
tenced to the house of correction for life. The case was in 
charge of L. LeB. Holmes, district attorney. 

LuiGi Storti of Boston, indicted in Sufi'olk County, 
December, 1899, for the murder of Michele Calucci, at 
Boston, Nov. 7, 1899. He was arraigned Dec. 27, 1899, 
and pleaded not guilty. Peter S. Maher and Clarence W. 
Rowley were assigned by the court as counsel for the defend- 
ant. On June 25-July 1, 1900, the defendant was tried by 
a jury before Bond and Lawton, JJ., resulting in a verdict 



xii ATTORNEY-GENERAL'S REPORT. [Jan. 

of guilty of murder in the first degree. Exceptions were 
filed by counsel for the defendant, and were argued before 
the Supreme Judicial Court at Boston, Nov. 19, 1900. The 
exceptions were overruled Jan. 2, 1901, and on the fourth 
day of January he was sentenced to death, the tiaie of 
execution being fixed, under St. 1898, c. 326, to take place 
during the week beginning April 7, 1901. The case has 
been in charge of Oliver Stevens, district attorney. 

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. Albert P. 
Worthen and Albert E. Avery were assigned by the court 
as counsel for the defendant. On April 26, 1900, he re- 
tracted his plea of not guilty, and pleaded guilty of murder 
in the second degree. The plea was accepted by the Com- 
monwealth, and he was thereupon sentenced to State Prison 
for life. The case was in charge of Robert O. Harris, dis- 
trict attorney. 

Joseph A. Hill of Barnstable, indicted in Barnstable 
County, October, 1899, for the murder of Mary T. Hill, at 
Barnstable, June 16, 1899. On Feb. 10, 1900, he was 
arraigned, and pleaded not guilty. Henry H. Baker, Jr., 
and Charles F. Chamberlayne were assigned by the court as 
counsel for the defendant. On March 7, 1900, he retracted 
his plea of not guilty, and pleaded guilty of murder in the 
second degree. The plea was accepted by the Common- 
wealth, and he was thereupon sentenced to State Prison for 
life. The case was in charge of L. LeB. Holmes, district 
attorney. 

The following indictments for murder are now pending : — 

Franciszek Umilian, indicted in Hampshire County, 
June, 1900, for the murder of Karimierz Jedrusik, at 
Granby, Dec. 31, 1899. On June 12, 1900, he was ar- 
raigned, and pleaded not guilty. John B. O'Donnell of 
Northampton was assigned by the court as counsel for the 



1901.] PUBLIC DOCUMENT — No. 12. 



xui 



defendant. On Oct. 1, 1900, the defendant was tried by a 
jury before Sherman and Stevens, JJ., resulting in a verdict 
of guilty of murder in the first degree. Exceptions were 
filed by counsel for the defendant, and allowed, which have 
not yet been argued. The trial of the case was conducted 
by John C. Hammond, district attorney. 

Charles Alberto of Holyoke, indicted in Hampden 
County, September, 1900, for the murder of Nathalie Al- 
berto, at Holyoke, Sept. 2, 1900. The defendant has not 
yet been arraigned. 

Henry E. Parsons of Boston, indicted in Sufiblk County, 
July, 1900, for the murder of William T. Hammond, at 
Boston, June 18, 1900. On Sept. 19, 1900, he was ar- 
raigned, and pleaded not guilty. James A. McGeough and 
Michael J. Dwyer have been assigned by the court as coun- 
sel for the defendant. 

Charles R. Eastman of Cambridge, indicted in Middle- 
sex County, October, 1900, for the murder of Richard H. 
Grogan, Jr., at Cambridge, July 4, 1900. He was arraigned 
Oct. 26, 1900, and pleaded not guilty. Charles W. Bartlett 
and Samuel J. Elder appear as counsel for the defendant. 

The Office of the Attorney- General. 
The business of the' office is still increasing. By way of 
comparison, I append a schedule showing the number of 
cases requiring the attention of the Attorney-General during 
each of the years in which I have had the honor to be the 
incumbent of the office. The basis of enumeration is the 
same in each year. 





Number of 




Number of 


YEAR. 


Cases. 


YEAR. 


Cases. 


1894, .... 


549 


1898, .... 


1,274 


1895, .... 


508 


1899, .... 


1,378 


1896, .... 


614 


1900, .... 


1,801 


1897, .... 


1,190 







xiv ATTORNEY-GENERAL'S REPORT. [Jan. 

The foregoing enumeration does not include oral opinions, 
which average, perhaps, from forty to fifty a week, nor 
written opinions, of which there have been prepared during 
the past year over one hundred, as against fifty -three in the 
year 1894. It has become necessary to increase the staff of 
the office, and accordingly, on the first day of October, Mr. 
Frederick H. Nash of Cambridge was, with the approval 
of the Governor and Council, appointed as an assistant. 

There have been during the year an unusual number of 
cases in the Federal courts, in which statutes of the Com- 
monwealth or doings of administrative boards under the 
statutes have been drawn in question. 

Among them were a suit to restrain the committee having 
control of the common stock of the Fitchburg Railroad 
owned by the Commonwealth from voting the stock upon the 
proposed lease of the Fitchburg Railroad, one attacking the 
proceedings of the Gas Commission in reducing the price 
of gas in Haverhill, and one to have the act relating to 
the transportation of school children by street railways 
declared unconstitutional. The first was decided in favor 
of the Commonwealth ; the last two are still pending. 

To what extent the courts of the United States have juris- 
diction to review or restrain the doings of executive officers 
of the Commonwealth, is a question which cannot be said to 
be definitely settled. There is one respect, however, in 
which the statutes of the Commonwealth might be amended 
in a way to afford at least less occasion for resorting to the 
Fedei'al courts. Some State boards have the right under the 
law to make decrees which affect directly the property rights 
of those against whom the orders are issued. Such, for 
example, is the statute giving the Gas Commission the right 
to reduce or to fix the price of gas to be charged to con- 
sumers. Under the statute, there is no right of review by 
a court or a jury upon the question of the reasonableness of 
such orders. It may be wise to provide by legislation that 
in all such cases the party claiming to be injured shall have 
the right of appeal to the courts. 

Among the more important transactions of the year was 
the settlement of the suit of the city of Boston against the 
Commonwealth for the taking of its water works, for the sum 



1901.] PUBLIC DOCUMENT — No. 12. xv 

of $12,531,000. The settlement was made with the approval 
of the Governor and Council and of the Metropolitan Water 
Board. 

Twice during the year the Governor has been summoned 
into court as a party defendant, one of the cases being 
in the Supreme Judicial Court and the other in the Circuit 
Court of the United States. In both jurisdictions the pro- 
ceedings, so far as they were directed against the Governor 
personally, were summarily dismissed. It is the better 
opinion that the supreme executive magistrate of a State 
cannot, during his term of office, be made a party defendant, 
either in the State or the Federal courts, on account of his 
doings as Governor. The consequences of attempting 
jurisdiction of his person in such cases might easily be 
serious. 

Statutes relating to Costs in Criminal Cases. 

Some complaint has been made of the operation of exist- 
ing statutes relating to costs in criminal cases. Under them 
the expenses of such prosecutions in the inferior courts are 
borne by the town in which the offence complained of was 
committed. It is claimed that this provision is unduly bur- 
densome upon small towns, which in most cases have no 
special interest in such prosecutions, as distinguished from 
the other towns in the county. 

Other statutes provide by way of recompense for the costs 
so imposed upon towns, that fines and forfeitures recovered 
in the inferior courts shall be paid to the municipality in 
which the offence was committed ; but it is asserted that this 
provision by no means amounts to an adequate offset. 

How far this complaint is well founded I am unable to 
say ; but, at the request of some of the district attorneys, I 
call the matter to the attention of the Legislature, to the 
end that the evil, if it exists, may be remedied by suitable 
legislation. 

The Land Registration Act. 
One of the most important and beneficial enactments of 
recent years is the act to establish a Court of Land Regis- 
tration (St. 1898, c. 562). The purpose of the act is, in 
brief, to do away with the cumbrous and expensive system 



xvi ATTORNEY-GENERAL'S REPORT. [Jan. 

of land transfer which has prevailed in this Commonwealth 
from the beginning. Always costly and tedious, it has 
become more and more so as transactions in real estate have 
increased in frequency, until to-day the transfer of a land 
title is a matter usually involving weeks of delay and a 
serious tax upon either the buyer or seller. 

The effect of the act will be to make the purchase and sale 
of real estate as easy and as inexpensive as transactions in 
stocks and bonds. The act has been in successful operation 
in many jurisdictions, and the results have been entirely sat- 
isfactory. 

It was not to be expected that the act would meet with 
universal favor, particularly among those directly benefited 
under the present system of land transfers. In January, 
1899, a petition was brought by one Tyler against the judges 
of the Court of Registration, seeking to prohibit them from 
proceeding in the registration of a parcel of land contiguous 
to land belonging to the petitioner. The declared purpose 
of the petition was to test the constitutionality of the statute. 
Upon a hearing before all the judges of the Supreme Judicial 
Court, its constitutionality was aflirmed, two of the seven 
judges dissenting. 

The petitioner thereupon took out a writ of error to the 
Supreme Court of the United States, alleging that the act 
was in violation of the provisions of the Federal Constitu- 
tion. The case was argued in October, 1900. The peti- 
tioner failed to show that he had a standing in the Federal 
Court, and the writ was dismissed for that reason. The 
court was divided, four out of the nine justices dissenting, 
upon the ground that the question was within the jurisdic- 
tion of the court. 

It is clear, from the opinion of the majority of the court, 
that no appeal lies to the Federal Court except by a person 
who is actually aggrieved by proceedings had in the Court 
of Registration, and of which he has not had notice. Such 
a contingency, however, is not likely to arise ; for, under the 
rules and procedure of the Court of Land Registration, it is 
extremely unlikely that any person's rights will be adversely 
affected without due notice to him. The statistics of such 
courts in other jurisdictions show that claims upon the in- 



1901.] PUBLIC DOCUMENT — No. 12. xvii 

demnity fund, provided in all acts establishing such courts, 
are rare, and that the amounts paid out as damages to per- 
sons aggrieved are very inconsiderable. 

As the act stands, it has been declared constitutional by 
the Supreme Judicial Court of this State, and an attempt to 
obtain a revision of the question of its constitutionality has 
been dismissed by the Supreme Court of the United States. 
This being so, it is wise, in my judgment, that the act grad- 
ually be made compulsory. It has recently been made 
compulsory in certain parts of London, and no complaint 
has arisen, so far as I am informed, of its successful opera- 
tion. It would scarcely be expedient, in my judgment, to 
undertake at the present time to make the act compulsory 
throughout the Commonwealth, but a beginning should be 
made. 

Investments by savings banks are and always have been 
under the exclusive control of the Legislature. They enjoy 
the franchise of the Commonwealth, and their investments 
are carefully guarded under its statutes. I recommend that 
the act be made so far compulsory, after such time as may 
seem reasonable to the Legislature, as that loans by savings 
banks upon real estate mortgages, at least for large amounts, 
shall be made only upon land the title to which has been 
registered. If such a statute should be enacted, I see no 
reason to doubt that ultimately the registration of the titles 
of real estate will be the rule throughout the Commonwealth, 
rather than the exception. 

There can be no danger that the security of the banks 
would thereby be impaired. On the contrary, they will 
have all of the security that they have now, and the security 
of a certificate of title from the State in addition. The pro- 
visions of the act do not create title. A deed in common 
form is, by the act, still essential to every transfer of real 
estate ; and by section 51 of the act the filing of such deed 
with the recorder has the same legal efiect of notice to all 
the world, that, under the old law, the recording of the in- 
strument in a registry now has. The statute only seeks to 
declare and to guarantee title. 

It is difficult to see how a person affected with notice can 
impeach the action of the Court of Registration ; and unknown 



xviii ATTORNEY-GENERAL'S REPORT. [Jan. 

claimants have at least no greater rights after registration 
than they have now. The only thing that could fail, even 
if the act were declared to be in violation of the Constitu- 
tion of the United States, would be the guaranty by the 
State, provided under a statute, based upon an official exam- 
ination of the title. The statute I recommend, therefore, 
would not impair the security of loans by savings banks. 

The Death Penalty. 

In my report of last year I recommended the abolition of 
the death penalty as to females and minors under the age of 
eighteen years. Without acting upon my recommendation, 
a bill was reported by the committee on the judiciary en- 
tirely abolishing capital punishment. After full discussion, 
it failed to pass the House by the remarkably narrow margin 
(including pairs) of 103 members in favor of the bill and 
105 against it. A vote so close can scarcely be said definitely 
to have settled the question, and it is not unlikely that the 
discussion may be renewed in the present Legislature. 

I was subjected to some criticism for not following out 
the logic of my convictions, by recommending not a partial 
but a total abolition of the death penalty. I am disposed to 
regard the criticism as just ; but I was restrained for the 
reason, as stated in my report, that I did not deem it prob- 
able that the sentiment of the people of Massachusetts was 
at that time in favor of the total abolition of capital punish- 
ment. 

The vote above referred to, however, has led me to be- 
lieve that a proposition to abolish the death penalty cannot 
at the present time properly be regarded as a radical shock 
to the sense of the community, nor as premature and there- 
fore ill-advised. I think it proper and timely, therefore, 
to contribute my views to the discussion, — views based not 
only upon a close observation of the operation of the exist- 
ing laws in this as well as in other States, but also upon an 
experience in the prosecution and trial of capital cases, 
which, possibly, may be more extensive than that of any 
other man now living in the State. 

My views, briefly stated, are : that the punishment of 



1901.] PUBLIC DOCUMENT — No. 12. xix 

murder by death does not tend to diminish or prevent that 
crime ; that a man who is so far lost to reason as to conceive 
the commission of murder with deliberate and premeditated 
malice aforethought does not enter into a discussion with 
himself of the consequences of this crime ; that the inflic- 
tion of the death penalty is not in accord with the present 
advance of civilization ; and that it is a relic of barbarism, 
which the community must surely outgrow, as it has already 
outgrown the rack, the whipping-post and the stake. 

I think I am justified in saying that the majority of those 
who have been or are engaged in the trial of capital cases 
share in these views. 

The Collateral Inheritance Tax. 

The original act (St. 1891, c. 425) provided that no estate 
should be subject to the provisions of the act "unless the 
value of the same after the payment of all debts shall exceed 
the sum of $10,000." In the case of Minot v. Winthrop, 162 
Mass. 113, it was claimed by the plaintiff that this proviso, 
by reason of unjust discrimination, ought to render the act 
unconstitutional. As an example of the alleged undue dis- 
crimination, it was said, and with truth, that under it a small 
legacy of $100 in an estate worth more than $10,000 would 
be taxable; while, on the other hand, a legacy of $9,000 in 
an estate worth less than $10,000 would not be taxable. 

The Supreme Judicial Court held that the alleged dis- 
crimination did not render the act unconstitutional. But, 
with the view of remedying the apparent injustice of the 
statute, it was amended in 1895 (St. 1895, c. 307), so that 
no legacy should be taxable unless of a value of more than 
$500. The amendment, however, did not entirely meet the 
criticism which had been made of the injustice of the pro- 
vision. Under the statute as it stands, to cite a case which 
may easily happen, one who receives a legacy of $600 from 
an estate of the value of $11,000 must pay an inheritance 
tax, while one who receives as collateral legatee the whole 
of an estate valued at $9,000 pays no tax. This is clearly 
an injustice. 

To make the law uniform in its application, the provisions 



XX ATTORNEY-GEJ^ERAL'S REPORT. [Jan. 

in the original section, limiting the tax to estates of more than 
$10,000, should be repealed, leaviog the question of the im- 
position of the tax to depend upon the amount of the legacy 
only. 

Enforcement of Civil Service Laws and Regulations. 

In my report submitted in January, 1899, I referred to 
the difficulties of enforcements of the civil service statutes 
and the rules of the commissioners, and suggested that, in 
addition to the remedy by indictment, power be given to 
the Attorney-General to bring informations against persons 
claimed to be holding public office in violation of such 
statutes and rules. The recommendation was adopted. 

The enforcement of the law, however, is still greatly im- 
paired, owing to the fact that it takes much time, whether 
proceedings are had in the criminal courts or by informa- 
tion, to obtain judgment against violators. It may even 
happen that a final decision is not reached until after the 
term of the incumbent has expired. Meanwhile, his salary 
goes on and cannot be recovered back. 

It would be a salutary provision, in my judgment, to 
withhold the payment of salary to a person charged with 
holding office in violation of civil service statutes and rules, 
until his right to the office is determined by the courts. I 
recommend that such a statute be enacted. 

Land-damage Cases. 

Notwithstanding the fact that every effort is made in the 
office of the Attorney-General to bring trials of land- 
damage cases to speedy determination, many unavoidable 
delays are continually arising. A large number have been 
settled or disposed of during the present year, but there 
were more pending at the end of the year than at the begin- 
ning. These delays, for the most part, are due to causes 
for which the Attorney-General or his assistants are not re- 
sponsible. 

Meanwhile, under existing statutes, interest on the awards 
as finally ascertained is computed at the rate of six per cent, 
per annum ; and there is good reason to believe that, in 
some cases at least, trials have been delayed by reason of 



1901.] PUBLIC DOCUMENT — No. 12. xxi 

this fact. As the law stands, a claim for damages for land 
taken is an investment yielding so large an annual income 
that some parties are not in haste to realize upon them. 

There is no reason why the Commonwealth should pay to 
such claimants a larger rate of interest than the average paid 
by it to other creditors ; and I see no constitutional objec- 
tion to a statute reducing the rate of interest to be computed 
upon awards, at least after the passage of the act. Such a 
statute would violate no right of contract, because there is 
no contract with reference to it, express or implied. It is a 
mere incident of the damages sustained by the petitioner, al- 
lowed by the Legislature in its exercise of its discretion. 

I recommend, therefore, that the statutes be so amended 
that interest upon unsettled claims for damages in conse- 
quence of the taking of land by the Commonwealth, be com- 
puted at 4 per cent, per annum instead of at the rate of 6 per 
cent, per annum, as under the existing statutes. 

Opinions of the Attorney-General. 

The edition of the oflScial opinions of the Attorney- 
General, authorized by Resolves of 1898, chapter 95, was 
published early in the year, and was distributed in accord- 
ance with the provisions of the resolve. The volume com- 
prised opinions published in the years from 1891 to 1898 
inclusive, and is entitled ** Opinions of the Attorneys-General 
of Massachusetts," Volume I. This edition having been 
exhausted, a second edition of two thousand copies was 
authorized by the Legislature, and the copies of this edition 
not already sold or distributed are in charge of the Secretary 
of the Commonwealth. 

Annexed to this report are the principal opinions prepared 
during the current year. 

Respectfully submitted, 

HOSEA M. KNOWLTON, 

Attorney- General. 



OPINIONS 



Gypsy Moth — Agent to investigate Parasites of, Outside Limits 
of Commonwealth — Governor. 

The Board of Agriculture may not send an agent to Europe to study the 
habits of the parasites of the gypsy moth, with a view to their intro- 
duction into this country. 

Tlie Governor has no authority to appoint an agent for that purpose. 

Jan. 18, 1900. 
James W. Stock well, Esq,, Secretary, State Board of Agriculture. 

Dear Sir : — Your letter of Nov. 20, 1899, requires the opinion 
of the Attorney-General upon the question whether the Board of 
Agriculture has authority to send a person to Europe to study the 
habits of the parasites of the gypsy moth, with a view to their in- 
troduction into this country for the purpose of destroying the 
gypsy moth, in case it can be done with safety. 

St. 1891, c. 210, § 1, defines the duty and authority of the State 
Board of Agriculture. It provides as follows : " The state board 
of agriculture is hereby authorized, empowered and directed to pro- 
vide and carry into execution all reasonable measures to prevent 
the spreading and to secure the extermination of the ocneria dis- 
par or gypsy moth within this Commonwealth ; and to this end this 
board shall have full authority to provide all necessary material 
and appliances, and to employ such competent persons, servants 
and agents as it shall from time to time deem necessary in the 
carrying out of this act." 

I have heretofore advised one of the commissions appointed 
by the Governor, that, in the absence of express authority, it is 
not to be presumed that the Legislature has intended that its offi- 
cers and servants should travel beyond the limits of the State. 
When such authority has been intended to be given, it has been 
conferred in express terms. 1 Op. Atty.-Gen., 382. 

I am of opinion that the reasons which led to the opinion I have 
referred to require me to answer your question in the negative. 

I know of no authority under which the Governor may appoint 
and send to Europe such an agent. 
Yours very truly, 

Hose A M. Knowlton, Attorney- General. 



ATTORNEY-GENERAL'S REPORT. [Jan. 



Civil Service — Veterans Preference Act — Original Appointments 

— Promotion. 

The provisions of St. 1896, c. 517, are applicable only to original appoint- 
ments and to employment in the labor service. The repeal of the 
words " other qualifications being equal," however, in the sixth clause 
of § 14, c. 320, St. 1884, has the effect to require the preference of 
veterans in promotion, subject to the provisions in the same section 
that such promotions shall be on the basis of ascertained merit and of 
such examination as the Civil Service Commission may.deem proper. 

Jan. 27, 1900. 
Charles Theodore Russell, Esq., 

Chairman, Civil Service Commission. 

Dear Sir : — Your letter of December 14 requires the opinion 
of the Attorney-General upon the question whether the provisions 
of the Veterans Preference Act (St. 1896, c. 517) apply to pro- 
motions ; and, if so, to what extent. 

An examination of the civil service law (St. 1884, c. 320) shows 
that it is intended to deal with three distinct subjects, to wit : (I) 
the selection of persons to fill offices in the government of the Com- 
monwealth and of the several cities thereof which are required to 
be filled by appointment; (2) the selection of persons to be em- 
ployed as laborers in the service of the Commonwealth ; and (3) 
promotions in office. In no section of the statute does the word 
" appointment" appear to be used to include promotion. 

Thus, section 2 provides that rules shall be prepared for the first 
two classes, to wit : the appointment of persons to office and the 
employment of persons as laborers. Section 14 provides that rules 
shall be made providing : — 

First. — For the classification of " the offices and employments 
to be filled ; " 

Second. — For examinations by which to test " applicants for 
office, or for employment ; " and 

Fourth. — For " promotions in office." 

The sixth clause of this section distinctly distinguishes between 
appointments and promotions. It provides for " giving prefer- 
ence in appointments to office and promotions in office " to vet- 
erans. 

Section 22 requires that the name of every person " appointed, 
employed or promoted," etc., shall be reported to the commission. 

Doubtless the expression " appointment to office " could be con- 
strued broadly enough to include promotions from one grade to 
another, if the context permitted such construction. In view, 
however, of all the provisions of the statute, some of which I have 



1901.] PUBLIC DOCUMENT — No. 12. 3 

quoted above, I have no doubt that it was the intention of the 
Legislature to use the word " appointment" as applicable only to 
the original selection of persons for office, and to distinguish be- 
tween such original selection and the promotion of persons already 
appointed to office under the civil service rules. 

The existing Veterans Preference Act (St. 1896, c. 517), as to 
which my opinion is desired, relates, in terms, solely to appoint- 
ments to office and employments in the labor service. No part of 
the law deals with promotions. I am of opinion that the word 
" appointment" is used, and is intended to be used, in the act in 
question in the same sense in which it was used in the original act. 
It follows that none of the provisions of the Veterans Preference 
Act relate to or are applicable to promotions. 

But the repealing clause of the act provides that the words 
"other qualifications being equal" shall be stricken out from 
clause 6 of section 14 of the civil service act. As originally en- 
acted, the clause was as follows : — 

'-'Sixth. — For giving preference in appointments to office and 
promotions in office (other qualifications being equal) to applicants 
who served in the army or navy of the United States in time of 
war and have been honorably discharged therefrom." 

Inasmuch as this clause deals directly with promotions, it must, 
in my judgment, be regarded as having been the intention of the 
Legislature, by the repeal of the words above quoted, so far to 
modify the original statute as to require the giving of preference 
to veterans in terms. 

The fourth clause, however, of the same section, requires that 
the commissioners shall provide in their rules " for promotions in 
office on the basis of ascertained merit and seniority in service and 
examination as may seem desirable." This clause must be con- 
strued in connection with clause 6, requiring the rules to provide 
for preference to veterans in the matter of promotions. In other 
words, it is the duty of your commission, under the authority of 
these two clauses, taken together, to provide in your rules for pro- 
motions on the basis of ascertained merit and upon such examina- 
tion as you may deem desirable, and, at the same time, to provide 
that veterans shall be preferred, whether they stand equally with 
other candidates or not. 

So construed, the rules to be made as to promotions do not differ 
materially from those required for appointments to office under 
section 2 of the Veterans Preference statute. That section per- 
mits veterans to be preferred, but only in cases where they have 
shown themselves capable of filling the office in question after 
examination. 



4 ATTORNEY-GENERAL'S REPORT. [Jan. 

Replying specifically, therefore, to the question submitted in 
your letter, I have to say that I am of the opinion that the provi- 
sions of the Veterans Preference Act (St. 1896, c. 517) are, and 
are intended to be, applicable only to original appointments and 
employments in the labor service ; but that the repeal of the words 
''other qualifications being equal," in the sixth clause of section 
14 of the original statute, has the effect to require the preference 
of veterans in promotions, subject to the provisions in the same 
section that such promotions shall be on the basis of ascertained 
merit and of such examination as your Board may deem proper. 
Yours very truly, 

HosEA M. Knowlton, Attorney- General. 



Insane Person — Escape — Duty of Superintendent of Hospital to 
Recapture — Discharge — Trustees of State Insane Hospital. 

It is the duty of the superintendent of a liospital to which an insane per- 
son has been committed by the court to retake such person if he 
escapes. 

There is no statute or rule of law which limits the time within which such 
insane person may be legally retaken. 

If the facts required by Pub. Sts., c. 87, § 40, are found to be true, a per- 
son who has been committed to the State insane hospital may be dis- 
charged by the trustees, whether he is at that time actually in custody 
or has escaped. 

Jan. 27, 1900. 

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

Dear Sir: — Your letter of January 9 requires the opinion of 
the Attorney-General upon the following questions, to wit : — 

First. — Whether an insane person who has been lawfully com- 
mitted to an insane hospital and has escaped therefrom may be 
lawfully apprehended and received back into said hospital without 
a new commitment ; 

Second. — Whether length of time affects the legality of such 
action ; and 

Third. — Whether the trustees have authority to discharge such 
insane person while his whereabouts are unknown to them. 

First. — The commitment of a person to an insane hospital by a 
court of competent jurisdiction is based upon a finding by the court 
that the person so committed should by reason of his insanity be re- 
strained of his liberty because the community would be in danger 
by reason of his being at large, or that his own welfare requires 
such commitment. The reasons which authorized the original com- 
mitment do not cease to operate because the person so committed 
has escaped ; on the other hand, in most cases they are probably 



1901.] PUBLIC DOCUMENT — No. 12. 5 

strengthened. The warrant of commitment prepared by virtue of 
St. 1898, c. 433, § 19, requires the superintendent to receive the 
patient into the hospital, *' and there safely keep according to 
law." Moreover, Pub. Sts., c. 87, § 45, provides that the "ex- 
pense of pursuing such pauper lunatics as escape" shall be, among 
other expenses, reimbursed to' the trustees of the hospital. 

I have no hesitation in advising you that it is not only the right 
of the superintendent, but his duty, to retake a person committed 
by the court, who has escaped. 

Second. — There is no statute or rule of law that limits the time 
within which an insane person who has escaped may legally be re- 
taken. 

Third. — Pub. Sts., c. 87, § 40, provides, in substance, that 
any two of the trustees of the State insane hospital "may dis- 
charge any person confined therein, if it appears that such person 
is not insane, or, if insane, will be sufficiently provided for by 
himself, his guardian, relatives, or friends, or by the city or town 
liable for his support, or that his confinement therein is not longer 
necessary for the safety of the public or his own welfare." Taken 
literally, this authorizes the discharge only of persons who are, in 
the words of the statute, " confined therein." I am of opinion, 
however, that the statute is not to be taken so literally, and that, if 
the facts required by the statute are found to be true, the person 
who has been committed may be discharged, whether at the time 
he is actually in custody or has escaped. 
Very truly yours. 

Hose A M. Knowlton, Attorney- General. 



Insurance — Foreign Insurance Company — Reinsurance — 
Resident Agent. 
A foreign insurance company doing business in this Commonwealth is not 
required, in case it desires to reinsure a risk, to take out its policy of 
reinsurance by and through an agent resident in this Commonwealth. 

Feb. 6, 1900. 
Hon. Frederick L. Cutting, Insurance Commissioner. 

Dear Sir : — St. 1894, c. 522, § 84, provides as follows : " For- 
eign companies admitted to do business in the Commonwealth 
shall make contracts of insurance upon lives, property, or interests 
therein only by lawfully constituted and licensed resident agents." 

The last clause in the same section is as follows : " Whenever 
any company negotiating insurance affects a reinsurance of any 
part thereof, otherwise than through licensed resident agents, the 



6 ATTORNEY-GENERAL'S REPORT. [Jan. 

entire tax thereon shall be paid by the original insuring company, 
and the tax commissioner shall make no deduction on account of 
such reinsurance.'* 

Your letter of December 28 requires my opinion upon the fol- 
lowing question : "If a foreign insurance company, authorized 
to do business in Massachusetts, issues a policy on property, lives, 
or interests in this Commonwealth which for any reason it desires 
to reinsure, must such company take out its policy of reinsurance 
by and through an agent resident in this Commonwealth, and must 
the policy of reinsurance be issued by such licensed resident 
agent?" 

I am of opinion that a foreign insurance company doing busi- 
ness in Massachusetts is not required, in case it desires to reinsure 
a risk, to take out its policy of reinsurance by and through an 
agent resident in this Commonwealth. I base this conclusion upon 
a number of considerations, among them the following : — 

The first clause of section 84, as above quoted, was originally 
enacted in St. 1887, c. 214, § 84. The last clause was first en- 
acted in St. 1888, c. 154, § 1. Upon the codification of the insur- 
ance laws the two clauses were put in the same section. The fact 
that the last clause was enacted after the first clause became a 
law indicates the intention of the Legislature that the first clause 
should not apply to reinsurance, as it plainly contemplates that 
contracts of reinsurance may be made "otherwise than through 
licensed resident agents.'' 

Furthermore, I am of opinion that the word " reinsurance," as 
used in the latter clause, is not intended to signify or include 
original insurance. The word "insurance" is defined in St. 
1894, c. 522, § 3, as amended by St. 1897, c. 66, as " an agree- 
ment by which one party, for a consideration, promises to pay 
money or its equivalent or to do some act of value to the insured 
for the destruction, loss or injury of something in which the other 
party has an interest." While it would be possible to hold that 
this definition covers reinsurance by one company of a risk taken 
by another, it is not necessary so to strain the definition, especially 
in view of the fact that the words " insurance " and " reinsurance " 
are both used in the same connection in the clause in question. 

The purpose for which the latter clause was enacted points to 
the same conclusion. Insurance companies were by Pub. Sts., 
c. 13, § 33, required to pay a franchise tax based upon the amount 
of premiums received by them, deducting unused notes given for 
premiums, return premiums on cancelled policies, and the sums 
actually paid to other insurance companies incorporated under the 
laws of the Commonwealth, or to the agents of foreign companies 



1901.] PUBLIC DOCUMENT — No. 12. 7 

for reinsurance. But, as it might be difficult for the taxing officer 
to verify the amounts so claimed to have been paid to a foreign 
insurance company for reinsurance, the clause in question was 
enacted as an amendment of section 33, with the obvious pur- 
pose of obviating such difficulty in case reinsurance is obtained 
otherwise than through licensed resident agents. If the reinsur- 
ance is obtained through a licensed resident agent, the amount so 
paid can be readily ascertained and deducted from the original 
premium for the purpose of the tax. If, however, companies see 
fit to reinsure directly from the home office, the tax is imposed 
upon the entire original premium, leaving the parties effecting 
such reinsurance to apportion the tax among themselves as they 
see fit. 

Very truly yours, 

HosEA M. Knowlton, Attorney- General. 



Boston & Albany Railroad Company — Lease — Corporation — 
Charter — Rights of Commonwealth to regulate Traffic and 
acquire Property of Railroad — Constitutional Law — Impair- 
ing Ohligatioyi of Contract — Interstate Commerce — Waiver — 
Assignment of Lease — Public Policy — House of Representa- 
tives — Attorney-General. 

The House of Representatives has no authority to fix a limit of time 
within which the Attorney-General shall discharge his statutory duty 
of advising the General Court, or either branch of it. 

The Boston & Albany Railroad Company, incorporated under the laws of 
both New York and Massachusetts, is, so far as the restrictions, duties 
and obligations imposed upon the Boston & Worcester Railroad Com- 
pany and the Western Railroad Company, its constituent domestic 
corporations by their charters, are concerned, within and subject to 
the jurisdiction of the Commonwealth as though it were incorporated 
wholly under the laws of Massachusetts. 

The jurisdiction of the State to regulate rates of traffic is limited to such 
traffic as begins and ends within its borders. 

The charters of the Boston & Worcester Railroad Company and the West- 
ern Railroad Company contained a contract whereby the Common- 
wealth agreed that it would not exercise its power of regulating 
rates of traffic so as to reduce the profits below ten per cent, per 
annum. The obligation of this contract subsists, notwithstanding 
the provision of Pub. Sts., c. 112, § 180, that traffic rates shall at all 
times be subject to alteration by the Legislatures, unless the corpora- 
tion has waived its right under its original charters. 

By accepting the benefit of legislation giving it additional privileges dur- 
ing the existence of general laws inconsistent with its original char- 
ters, the corporation has subjected itself to all the provisions of such 
general laws. The Commonwealth, therefore, has the right to regu- 



8 ATTORNEY-GENERAL'S REPORT. [Jan. 

late tlie rates on the Boston & Albany Railroad, although dividends are 
thereby reduced below eight per cent, per annum. 

The Legislature may reserve this right to the Commonwealth, while rati- 
fying the proposed lease of the Boston & Albany Railroad to the New 
York Central & Hudson River Railroad Company. 

The Commonwealth may acquire the property of the Boston & Albany 
Railroad either by eminent domain or by purchase. The compensa- 
tion in the first case would be the fair net cash value of the property 
taken, which would include only the property necessary to the carry- 
ing on of the railroad business ; in case of purchase, the Common- 
wealth must pay such sum as would reimburse to the road the " co.st 
of making the railroad," with a net profit thereon of ten per cent, a 
year. 

If the Commonwealth assents to the proposed lease, it does not expressly 
or by implication waive or surrender any rights reserved to it under 
existing laws. 

The sum of $5,500,000, the proceeds of property belonging to the lessor 
sold by it to the lessee, should be deducted from the damages in case 
of taking, and from the price to be paid in case of purchase. 

Questions of public policy are peculiarly within the province of the Legis- 
lature, and the Attorney-General is not authorized to express an 
opinion upon them. 

The bonds acquired by the Boston & Albany Railroad under the terms of 
the lease and agreement, when ratified by the Commonwealth, will 
become the absolute property of the corporation ; and the interest of 
the bonds may be divided among the stockholders, or the bonds may 
be sold and the proceeds divided. 

The lessee under the proposed lease has no authority to assign its lease or 
to underlet the lines of the Boston & Albany Railroad or any of the 
branches acquired by the lease. Such lease, though it may be annulled 
by the joint action of the contracting parties, cannot be modified, 
changed or amended by them without the consent of the Common- 
wealth. 

But qucBre, as to the remedy of the Commonwealth if the lessee should 
assign the lease. 

Such obligations as are now incumbent upon the Boston & Albany Railroad 
under the Public Statutes will continue in full force under the proposed 
lease. The duty of complying with the provisions of St. 1893, c. 131, 
will fall upon the lessee, and not upon the lessor. 

It is not within the jurisdiction of the House of Representatives to require 
the Attorney-General "to prepare and furnish" to it "a list of all 
the special legislation afi'ecting the Boston «& Albany Railroad," such 
order not being a question of law within the meaning of Pub. Sts., 
c. 17, § 7. 

March 16, 1900. 

Hon. James J. Myers, Speaker, House of Representatives. 

Dear Sir : — I have the honor to acknowledge the receipt of 

two orders adopted by the House of Representatives, respectively 

on the thirteenth and fourteenth days of February last, requiring 

the opinion of the Attorney-General upon certain questions therein 

stated. 



1901.] PUBLIC DOCUMENT — No. 12. 9 

The orders purport to require the Attorney-General to return his 
answers to the questions submitted on or before March 15, 1900. 
The Honorable House of Representatives is doubtless aware that 
it has no authority to fix a limit of time within which the Attorney- 
General shall discharge his statutory duty of advising the General 
Court, or either branch thereof, under the statutes of the Common- 
wealth. In deference, however, to the expressed wishes of the 
House of Representatives, as indicated by the limitation of time 
set forth in the orders, I have given such immediate consideration 
to the questions submitted as the other duties of this office have 
permitted, with a view to complying, so far as practicable, with 
the wishes of your Honorable body. 

Some general considerations affecting all the questions may 
properly be stated before proceeding to answer them in detail. 

1. The Boston & Albany Railroad Company is a corporation 
formed by the consolidation, under authority of St. 1867, c. 270, of 
the Boston & Worcester Railroad Corporation, incorporated by St. 
1831, c. 72, and the Western Railroad Corporation, incorporated by 
St. 1833, c. 116. By St. 1839, c. 461, it was further authorized 
to unite and consolidate with itself in one corporation the Albany 
& West Stockbridge Railroad Company and the Hudson & Boston 
Railroad Corporation, incorporated under authority of and exist- 
ing in the State of New York, under the name of the Boston & 
Albany Railroad Company. Legislation authorizing such a con- 
solidation was also enacted in New York (N. Y. St. 1869, c. 917). 

Under these statutes two corporations were created, one being 
the Boston & Albany Railroad Company, incorporated under 
authority of the statutes of Massachusetts, and the other being 
the Boston & Albany Railroad Company, incorporated under the 
statutes of New York. Both corporations were, and are, com- 
posed of the same persons and governed by the same officers. 
Together they acquired the ownership and control of, and have 
continued to own and control, a railway line extending from 
Boston to Albany. 

The effect of such a dual organization and the relative rights 
and jurisdiction of the several States under which it exists have 
been considered in many cases, both in the federal and State 
courts. I discussed the matter somewhat fully in an opinion given 
to the Senate and House of Representatives concerning the legality 
of the lease of the Old Colony Railroad Company to the New 
York, New Haven & Hartford Railroad Company, submitted 
March 16, 1894, in which I reached the conclusion, and so advised 
the Senate and House of Representatives, that, so far as concerned 
their relations to the sovereignty, they were two corporations ; 



10 ATTORNEY-GENERAL'S REPORT. [Jan. 

but that, so far as concerned the ownership of their propertj^ the 
carrying on of their business and their relations to the public, 
they constituted, to all intents and purposes, one corporation, each, 
nevertheless, owing allegiance to the State granting its charter and 
governed by the laws of such State in matters exclusively within 
its jurisdiction . 

It has been suggested that, in consequence of this dual incorpo- 
ration, the Commonwealth has lost some of the rights which it 
may have had over the corporations of which the consolidated cor- 
poration was coniposed. Under the New York statute, however, 
authorizing the consolidation (N. Y. St. 1869, c. 917), it was ex- 
pressly provided that " such act of consolidation shall not release 
such new corporation from any of the restrictions, disabilities or 
duties of the several corporations so consolidated." Similar pro- 
visions were contained in the Massachusetts statutes. If, there- 
fore, any such restrictions, duties or obligations were contained in 
the special acts referring to the consolidated corporations in Mas- 
sachusetts, or in general laws applicable to such corporations, I 
deem them to have been continued and to remain in force as to 
the consolidated corporation ; and am of the opinion that the con- 
solidated corporation is, so far as concerns the restrictions, duties 
and obligations imposed upon the constituent domestic corpora- 
tions by their charters, within and subject to the jurisdiction of 
the Commonwealth of Massachusetts, as though it were incorpo- 
rated only under the laws of this Commonwealth. 

2. It is to be observed, further, that, under the construction 
given by the federal courts to the commerce clause of the Con- 
stitution of the United States, and the interstate commerce laws 
enacted by Congress under authority thereof, the jurisdiction of a 
State to regulate rates of traffic is limited to such traffic as begins 
and ends within the State, and that it has no authority to regulate 
traffic beginning within the State and ending without the State, or 
vice versa, or traffic beginning and ending without the State. It 
cannot even regulate local traffic with reference to the revenues re- 
ceived by the railroad from interstate traffic, or impose upon inter- 
state traffic an undue portion of the burden of operating expenses, 
so that a loss which may be incurred by the corporation from local 
traffic is left to be made up by the profits of interstate traffic. 
Consequently, whatever is hereafter said with reference to the reg- 
ulation of rates of traffic by the Commonwealth is to be taken to 
refer to such traffic only as is within the jurisdiction of the Com- 
monwealth. 

Having in view these considerations, I beg to reply to the ques- 
tions submitted as follows : — 



1901.] PUBLIC DOCUMENT — No. 12. 11 

1 (order of February 13). "Does the Commonwealth, under 
existing laws and charters, have the right to reduce rates on the 
Boston & Albany Railroad, if thereby dividends are reduced below 
eight per cent per annum? " 

In order intelligently to consider this question, it is necessary 
to review the legislation of the Commonwealth looking to the reg- 
ulation of rates of traffic, so far as the same are applicable to the 
Boston & Albany Railroad Company. 

The charter of the Boston & Worcester Railroad Company (St. 
1831, c. 72) contained the following provision, to wit: — 

Section 5. Be it further enacted. That a toll be, and hereby is 
granted and established, for the sole benefit of said corporation, upon all 
passengers and property of all descriptions which may be conveyed or 
transported upon said road, at such rates per mile as may be agreed 
upon and established from time to time by the directors of said corpo- 
ration. The transportation of persons and property, the construction 
of wheels, the form of cars and carriages, the weight of loads, and all 
other matters and things in relation to the use of said road, shall be in 
conformity to such rules, regulations and provisions, as the directors 
shall from time to time prescribe and direct, and said road may be used 
by any persons who shall comply with such rules and regulations : iJ>ro- 
vided, however, that if, at the expiration of ten years from and after the 
completion of said road, the net income or receipts from tolls, and other 
profits, taking the ten years aforesaid as the basis of calculation, shall 
have amounted to more than ten per centum per annum upon the cost 
of the road, the legislature may take measures to alter and reduce the 
rate of tolls and other profits, in such manner as to take off the overplus 
for the next ten years, calculating the amount of transportation upon 
the road to be the same as the ten preceding years ; and at the expi- 
ration of every ten years thereafter, the same proceedings may be had ; 
provided, further, that the legislature shall not at any time, so reduce 
the tolls and other profits as to produce less than ten per centum upon 
the cost of the said railroad, without the consent of said corporation. 

This statute was enacted June 23, 1831. The charter of the 
Western Railroad Company contained a# section identical in its 
provisions with that contained in the charter of the Boston & 
Worcester Railroad Corporation above quoted. This charter was 
enacted in 1833 (St. 1833, c. 116). 

Shortly before these charters took effect, however, a general 
law was enacted (St. 1830, c. 81, approved March 11, 1831), 
which provided that *'all acts of incorporation which shall be 
passed after the passage of this act shall at all times hereafter be 
liable to be amended, altered or repealed at the pleasure of the 
legislature, and in the same manner as if express provision to that 
effect were therein contained, unless there shall have been inserted 



12 ATTORNEY-GENERAL'S REPORT. [Jan. 

in such act of incorporation an express limitation as to tlie dura- 
tion of the same." 

This provision has continued in force substantially to the pres- 
ent time, and is now section 3 of chapter 105 of the Public 
Statutes. 

The question thereupon at once arises whether this general law, 
subjecting all special charters thereafter enacted to amendment or 
repeal at the pleasure of the Legislature, is to be regarded as 
reserving to the Legislature the right to amend the provisions of 
section 5 of the charter of the railroad company, above quoted. 
There can be no doubt that as a general rule the statute above 
quoted, reserving to the Legislature the right to amend, alter or 
repeal charters, is to be regarded as being incorporated in subse- 
quent charters, governing and limiting their provisions. On the 
other hand, however, it is equally certain that the Legislature may 
grant a charter which shall not be subject to the provisions of this 
general law. No Legislature can bind its successor ; and it is 
clearly within the power of the General Court to enact a law con- 
taining an unalterable contract, notwithstanding the restraining 
provisions of a prior general statute like the one in question. A 
striking illustration of the exercise of this power is to be found in 
St. 1897, c. 500, relating to the Boston Elevated Railway Com- 
pany. 

There is much ground for the contention that the prior general 
law, reserving to the Legislature tbe right to repeal or amend all 
charters subsequently granted, is to be regarded as incorporated 
by implication into every subsequent charter, controlling it to the 
extent that, however absolute its provisions, they are enacted sub- 
ject to the right of amendment by the Legislature. The question 
has been more than once discussed by the Supreme Judicial Court, 
but never determined ; and it may be that when it becomes neces- 
sary the court may adopt the construction suggested. Should it 
be so held, there is nothing to prevent the Legislature from regu- 
lating rates of traffic upon the Boston & Albany Railroad, except- 
ing certain general constitutional restrictions upon its authority, 
which will be hereafter considered. 

Inasmuch, however, as the Honorable the House of Representa- 
tives is entitled to the opinion of the Attorney-General, however 
difficult or uncertain the question submitted, 1 am constrained to 
say that in my opinion the section relating to tolls and fares, 
above quoted, in the charter of the Boston & Worcester Railroad 
Company, was intended to constitute, and did constitute, a con- 
tract between the Commonwealth and the railroad company, which 
could not be annulled except by the waiver or consent of the com- 



1901.] PUBLIC DOCUMENT — No. 12. 13 

pany. The same is true of the similar provisions in the charter of 
the Western Railroad Company. At the time these charters were 
granted, railroad transportation was in its infancy. Experience 
furnished no guide as to the probable profits which might accrue 
from such methods of transportation. The section in question 
was obviously a declaration by the Legislature that ten per centum 
upon the cost of the road should be regarded as a reasonable com- 
pensation, and the section in question so declared. It provided, 
upon the one hand, that from time to time rates of traffic might 
be regulated so as to reduce the profits of the company to ten 
per centum, and, on the other hand, that such regulation should 
not reduce profits below that figure. In consideration, therefore, 
of the reservation of authority to regulate fares so as to reduce 
profits to the percentage named, the Commonwealth agreed that 
it would not exercise its power of regulation so as to reduce 
such profits below that amount. This, being accepted by the 
company, clearly amounted to a contract. The fact that the esti- 
mate of reasonable and proper profits was a large one, and that 
consequently the bargain turned out to be an improvident one on 
the part of the Commonwealth, does not alter the question. 
Being such a contract, the State became subject to the provisions 
of the Constitution of the United States, that no State shall pass 
any law impairing the obligation of contracts. 

The next inquiry is, whether this law has been amended or re- 
pealed by the consent, express or implied, of the corporation. 
The Revised Statutes, in chapter 39, section 83, provided substan- 
tially that the Legislature might regulate rates of toll upon any 
railroad, but with the proviso that such tolls should not be reduced 
so as to produce less than ten per centum per annum net profit to 
the corporation. The language of this section differs somewhat 
from the provisions of the charters of the railroad in question ; but 
as, in my opinion, it could not operate to repeal the provisions of 
the charters, it is unnecessary to consider it further. 

The provisions of the Revised Statutes remained substantially 
in force as the law of the Commonwealth until 1870, when in con- 
sequence of the recommendation of the Railroad Commissioners, 
it was provided (St. 1870, c. 325, § 1) that " any railroad corpora- 
tion may establish for its sole benefit fares, tolls and charges upon 
all passengers and property conveyed or transported on its rail- 
road at such rates as may be determined by the directors thereof, 
and may from time to time, by its directors, regulate the use of its 
road, provided that such rates of fares, tolls, and charges and 
regulations shall at all times be subject to revision and alteration 
by the legislature, or such officers or persons as the legislature may 



14 ATTORNEY-GENERAL'S REPORT. [Jan. 

appoint for the purpose, anything in the charter of such railroad 
corporation to the contrary notwithstanding." This section has 
continued in force as the law of the Commonwealth until the pres- 
ent time, and is incorporated in the Public Statutes as chapter 112, 
section 180. 

This was clearly an attempt by the Legislature to repeal all 
charter provisions limiting the power of the Legislature to regulate 
rates of traffic. But, for the reasons I have already stated, I am 
of opinion that it was ineffectual to repeal any such limitations as 
amounted to a contract between the Commonwealth and a corpora- 
tion, like the sections in the charters of the Boston & Worcester 
Railroad Company and the Western Railroad Company, relating 
to their right to regulate tolls, if those sections were then still in 
force. 

I have examined with some care all the provisions of the stat- 
utes, general and special, prior to the year 1870, relating not only 
to the Boston & Worcester Railroad Company and to the West- 
ern Railroad Company, but to the other corporations which, by 
consolidation with it, became the Boston & Albany Railroad Com- 
pany; and I do not find therein anything which can, in my judg- 
ment, be regarded as a waiver of the contract on the part of the 
railroad company. On the contrary, all the statutes so enacted 
appear clearly to have preserved, and to have intended to preserve, 
the special rights and contracts secured to it under its charter. 

In my opinion, therefore, the provisions limiting the authority of 
the Legislature to regulate rates of traffic on the Boston & Albany 
Railroad Company, contained in the charters of the companies 
from which it was formed, remained in force and binding upon the 
Commonwealth until the statute of 1870. 

It remains to consider whether anything has happened since 
that time to bring the corporation within the provisions of the laws 
giving to the Legislature full authority to regulate rates of traffic 
on railroads within its jurisdiction. There can be no doubt that 
the corporation may waive its right under the original charter, and 
subject itself to the provisions of the general laws. If it has 
accepted the benefit of legislation giving it important additional 
rights and privileges granted during the existence of general laws 
which are inconsistent with its original charter, the acceptance of 
such grants and privileges may well be deemed to be a consent 
that it shall be governed by such laws rather than by the terms of 
the original contract, entered into under different conditions and 
different laws. 

I find that since the year 1870 many such statutes have been 
enacted. The most striking instance of such legislation is per- 



1901.] PUBLIC DOCUMENT— No. 12. 15 

haps St. 1889, c. 163, authorizing the Boston & Albany Railroad 
Company to increase its capital stock by an amount not exceeding 
ten millions of dollars, and authorizing a capital of thirty millions 
of dollars in the whole. This act was accepted by the company, 
and its capital stock has been increased, although not to the full 
amount authorized by the act. 

What was the effect of the acceptance of this act (and other 
like acts) by the company? When it was enacted, the general 
laws of the Commonwealth (St. 1870, c. 325, § 1, re-enacted in 
St. 1874, c. 372, § 179, now Pub. Sts., c. 112, § 180) gave to 
the Commonwealth the power to regulate rates and fares without 
regard to the amount of dividends to be earned upon the capital 
stock of railroad corporations, and declared that this right should 
be reserved to the Commonwealth, anything in the charter of any 
railroad company to the contrary notwithstanding. The corpora- 
tion might have continued to stand upon its original charter and 
to adhere to the terms of its original contract ; but when, under 
general laws inconsistent with its charter, it accepted a grant of 
additional capital, it must be taken, in my judgment, to have ac- 
cepted such grant subject to the general laws applicable to the 
increased capital stock so granted. The charter of a railroad cor- 
poration is not merely the original act, but all the acts passed with 
reference to the corporation. I find no difficulty, therefore, in 
reaching the conclusion that, at least as to such additional stock, 
there existed no right to the corporation to earn upon it a ten per 
cent, dividend ; and that, as to such additional stock, the provi- 
sions of the original charter are inapplicable. 

It may be contended, however, that, even if it be conceded that 
stock issued under the authority of laws in force after 1870 must 
be taken to be subject to the general laws then in force, the rights 
of the original stockholders, for whose benefit the original charter 
was granted, are still preserved. But it is difficult if not impossi- 
ble, to separate the corporation, which has accepted the benefit of 
general laws enacted since 1870, from its stockholders or any part 
of them, or to classify those stockholders so that a portion have 
rights that others do not have. Such a distinction is not possible. 
The different issues of stock have not been kept distinct. The 
holder of a share of the Boston & Albany Railroad stock of to-day 
has no way of knowing whether the share was part of the original 
issue or of some increase ; nor would the corporation itself, if 
such a distinction should be attempted, have any method of deter- 
mining who among its shareholders are entitled to the benefits 
of its original charter, and who are subject to the provisions of 
the general laws. It would, moreover, be unreasonable to sup- 



16 ATTORNEY-GENERAL'S REPORT. [Jan. 

pose that it was the intention of the Legislature, or even the cor- 
poration, that there should be a distinction between increased 
stock, so that original stock should have the right to earn ten 
per cent, dividends, while as to stock authorized after the statute 
of 1870 the Legislature may regulate rates of traffic so that it 
could not earn that amount. Such a division of profits would be 
impracticable. 

I am of opinion, therefore, that, when the corporation accepted 
the benefit of statutes enacted in its favor by the Commonwealth, 
which were in fact amendments of original charter, it brought 
itself within the provisions of its general statutes in force at the 
time of such amendments, even though those statutes were incon- 
sistent with its original charter. 

There are no direct adjudications by the court on this question ; 
but in Attorney- General v. Old Colony Railroad, 160 Mass. 62, 
Field, C. J., in delivering the opinion of the majority of the court, 
says (p. 85) : " In view of the many changes in the charters of 
nearly all the railroad corporations of the Commonwealth occurring 
since the year 1870, which have been accepted by the corporations, 
it may well raise a doubt whether these corporations have not con- 
sented to be subject to any laws which the Legislature, under its 
general powers, may constitutionally enact concerning fares or 
tolls." In the same case, Knowlton, J., delivering the opinion of 
the minority, says (p. 95) : ^' By St. 1870, c. 325, § 1, . . . 
the Legislature terminated the right of these railroad corporations 
to go on expending money and increasing the cost of their rail- 
roads under a contract which permitted them, without the possi- 
bility of legislative interference, to charge fares which would give 
them an income of ten per cent, on the cost of the road, if such a 
right had previously existed." These extracts, while not to be 
taken as determining definitely the question under discussion, may 
yet be said to indicate clearly the views of the court in the matter ; 
and I have little doubt that, if the question were directly presented, 
the Supreme Judicial Court would have no difficulty in coming to 
the conclusions above indicated. 

Assuming, therefore, that there are no special restraining stat- 
utes now in force, the Boston & Albany Railroad Company is 
subject to the general statutes (Pub. Sts., c. 112, § 180) authoriz- 
ing the Legislature to fix tolls. There is no doubt of the consti- 
tutionality of the statute. The only limitation upon the power of 
the Legislature is that rates shall not be fixed so low as entirely 
to deprive the corporation of any profitable use of its property. 
In other words, they must be such as to permit the corporation to 
earn a reasonable profit. What is a reasonable profit must be 



1901.] PUBLIC DOCUMENT — No. 12. 17 

finally determined by the courts. It can scarcely be questioned, 
however, that a profit of something less than eight per cent, per 
annum would be a reasonable profit. 

1 am of opinion, therefore, that the Commonwealth, flnder exist- 
ing laws and charters, has the right to reduce the rates on the 
Boston & Albany Railroad, if thereby dividends are reduced below 
eight per cent, per annum. 

2 (order of February 13). "If so, would such right be in any 
way impaired by the Commonwealth's ratifying the proposed 
lease of the Boston & Albany Railroad to the New York Central 
& Hudson River Railroad Company ; and, if so, in what manner 
and to what extent? " 

In the absence of any limitation upon the consent of the Com- 
monwealth, I am of opinion that, having authorized the im- 
position of the burden of rentals equivalent to an eight per cent, 
dividend upon the stock of the Boston & Albany Railroad, subse- 
quent legislation so fixing traffic rates of the leased railroad as 
will make it impossible for the lessee to earn the amount so fixed 
would be a violation of that clause of the Fourteenth Amendment 
which forbids a State to deprive a person or corporation of prop- 
erty without due process of law, and would therefore be beyond 
the power of the Commonwealth. 

I have examined, however. House Bill No. 36, which is the bill 
with reference to which the questions submitted by the Honorable 
House of Representatives relate ; and I am of opinion that, under 
the second section of said bill, the right is reserved to the Common- 
wealth to fix rates to the extent and in the manner now enjoyed 
notwithstanding the proposed lease. Such a reservation is clearly 
within the power of the Legislature, and is binding upon the par- 
ties to the lease. 

3 (order of February 13). "By what method or methods, and 
at what probable price, under existing laws and charters, could the 
Boston & Albany Railroad be bought by the Commonwealth on 
March 1, 1900?" 

1 (order of February 14). "What are the rights of the Com- 
monwealth in the matter of taking, by purchase or otherwise, the 
property and franchises of the Boston & Albany Railroad Com- 
pany ; how much would such purchase or taking cost the Common- 
wealth ; and how and to what extent would those rights and said 
cost be changed, if at all, by the ratification of the lease as pro- 
posed in the bill now before the General Court?" 

The foregoing questions may conveniently be considered to- 
gether. 

There are two ways in which the Commonwealth may acquire 



18 ATTORNEY-GENERAL'S REPORT. [Jan. 

the property of the Boston & Albany Railroad Company, to wit, 
by taking or by purchase. 

The Commonwealth has the undoubted right to take the property 
of any individual or corporation, including a railroad corporation, 
for public uses. Under the authority of the Constitution the Com- 
monwealth may at any time take the property of the Boston & 
Albany Railroad, if the public exigencies so require, paying there- 
for a reasonable compensation. This compensation is the fair net 
cash value of the property taken. Such a taking by right of 
eminent domain would not, in my opinion, include the cash assets 
or choses in action of the corporation, but only the property 
necessary to the carrying on of the railroad business. On the 
other hand, it would not impose upon the Commonwealth any 
obligation to assume or pay the indebtedness of the corporation. 
This must be discharged by the corporation out of the damages 
recovered by it for the taking. The same rules would govern the 
compensation to be paid upon such taking as are applicable to any 
case of any taking by right of eminent domain. The cost of the 
property, its condition, its earning capacity, its prospective value, 
and perhaps other elements, would be proper matters to be con- 
sidered in arriving at its value. 

Pub. Sts., c. 112, § 8, expressly enacts that the Commonwealth 
may at any time " take and possess the road, franchise and other 
property of a railroad corporation after giving to it one year's 
notice in writing, and shall pay therefore such compensation as 
may be awarded by three commissioners to be appointed by the 
supreme judicial court, who shall be sworn to appraise the same 
justly and fairly, and shall estimate and determine all damages 
sustained by it by such taking ; and a corporation aggrieved by 
the determination of said commissioners may have its damages 
assessed by a jury of the superior court in the county of Suffolk, 
in the same manner as is provided by law with respect to damages 
sustained by reason of the laying out of ways in the city of Bos- 
ton." This section, however, is merely declaratory of the rights 
secured to the Commonwealth under the Constitution, and cannot 
be said to enlarge or diminish those rights. 

Another method by which the Commonwealth may acquire the 
property of the Boston & Albany Railroad Company is by pur- 
chase under the authority of general or special statutes. This 
right of purchase differs inherently from the constitutional author- 
ity to take property by right of eminent domain, in that it is con- 
ferred by a contract contained in the statute, may be exercised 
regardless of public exigencies, and the price to be paid is fixed 
by the statute. 



1901.] PUBLIC DOCUMENT — No. 12. 19 

The charter of the Boston & Worcester Railroad Company 
provides, in St. 1831, c. 72, § 14, as follows : " It shall be in the 
power of the government, at any time during the continuance of 
the charter hereby granted, after the expiration of twenty years 
from the opening for use of the railroad herein provided to be 
made, to purchase of the said corporation the said railroad and all 
the franchise, property, rights and privileges of the said corpora- 
tion, on paying therefor the amount expended in making said rail- 
road, and the expenses of repairs and all other expenses relating 
thereto, with interest thereon at the rate of ten per cent, per an- 
num, deducting all sums received by the corporation from tolls or 
any other source of profit, and interest at the rate of ten per cent, 
per annum thereon, that shall have been received by the stock- 
holders." By St. 1832, c. 153, relating to the same corporation, 
this right was modified in favor of the railroad corporation, so that 
the amount to be deducted from the interest to be paid on the cost 
of making the railroad should not in any event exceed ten per 
cent, per annum, the original section requiring the deduction of all 
amounts received even if the same amounted to more than ten per 
cent, per annum. 

The charter of the Western Railroad Company (St. 1833, c. 116) 
contained a provision relating to the purchase of the Western 
Railroad Company by the Commonwealth. It was similar in all 
respects to St. 1832, c. 153, above referred to, relating to the 
purchase of the Boston & AYorcester Company. A subsequent stat- 
ute superseded the provisions for purchase contained in the orig- 
inal charter. By St. 1839, c. 70, the Commonwealth authorized 
an issue of scrip to aid in the construction of the Western Railroad 
Company. Section 5 of this statute provided as follows : " The 
Commonwealth may, at any time after this act shall take effect, 
purchase of the said corporation the said Western Railroad, and 
all the franchise, property, rights and privileges of said corpora- 
tion, by paying them therefor such a sum as will reimburse them 
the amount of capital paid in, with a net profit thereon of seven 
per cent, per annum, from the times of the payment thereof by the 
stockholders, to the time of such purchase. And if, on said pur- 
chase, the Commonwealth shall have paid, or shall then pay or 
assume to pay the scrip issued by them by virtue of this act, or of 
the act passed the twenty-first day of February', in the year one 
thousand eight hundred and thirty-eight, or any part thereof, the 
amount which they shall have so paid, or shall pay or assume, 
shall not be deemed to be a part of the cost of the road, or of the 
capital paid in, for which the Commonwealth shall pay a net profit 
as above ; excepting, however, such part of said scrip as the 



20 ATTORNEY-GENERAL'S REPORT. [Jan. 

said corporation shall, at the time of such purchase, have actually 
paid." 

It is to be observed that the words relating to the price to be 
paid in the original charter were "the amount expended in mak- 
ing said railroad ; " whereas in the act of 1839 the language was 
'' the amount of capital paid in." Upon consideration, however, 
of all the provisions of section 5 above quoted, I am of opinion 
that the two expressions were intended by the Legislature to be 
identical, and to mean the amount of money actually expended by 
the stockholders in the construction of the railroad. Section 5, 
which designates the amount to be paid as " capital paid in," fur- 
ther provides that, in case the railroad is purchased by the Com- 
monwealth, and its scrip is outstanding, and is assumed by the 
Commonwealth, the amount of scrip so outstanding *' shall not 
be deemed to be a part of the cost of the road, or of the capital 
paid in, for which the Commonwealth shall pay a net profit as 
above ; excepting, however, such part of said scrip as the said 
corporation shall, at the time of such purchase, have actually 
paid." From these words it is obvious that by the use of the 
word "capital" in St. 1839, c. 70, the amount which the Com- 
monwealth was to pay for the purchase of the road was intended 
to be the actual amount expended by the stockholders either from 
the proceeds of shares issued, or in repaying the loan of the Com- 
monwealth made for that purpose. 

By St. 1867, c. 270, the Boston & Worcester Railroad Company 
and the Western Railroad Company were authorized to consoli- 
date into one corporation, the corporation so formed to be called 
the Boston & Albany Railroad Company. Section 4 of this stat- 
ute provides as follows : " If any such consolidation takes place 
as is provided in the first and third sections of this act, the corpo- 
ration so formed shall have, hold, possess and enjoy all the powers, 
privileges, rights, franchises, property, claims, demands and es- 
tates which, at the time of such union, may be held and enjoyed 
by either of the said existing corporations, and be subject to all 
the duties, restrictions, obligations, debts and liabilities to which, 
at the time of the union, either is subject in severalty." 

Section 17 of the same act provides: "The Commonwealth 
may at any time purchase of the Boston & Albany Railroad Com- 
pany its road and all its franchise, property, rights and privileges, 
by paying therefore such sum as will reimburse it the amount of 
capital paid into the several corporations composing it, and to the 
Boston & Albany Railroad Company, with a net profit thereon of 
ten per cent, a year from the times of the payment thereof by the 
stockholders of said corporations respectively, to the time of the 
purchase." 



1901.] PUBLIC DOCUMENT — No. 12. 21 

It might well be that, under the language of section 4, above 
quoted, the Commonwealth could claim the right to purchase so 
much of the consolidated company as had formerly been owned by 
the Western Railway Company, by paying it such a sum as would 
reimburse it the amount of capital paid in with a net profit thereon 
of seven per cent, interest, were it not for the special provision 
set forth in section 17, of the same act. The provisions of section 
17, however, amounted to a new contract between the consolidated 
corporation and the Commonwealth, and superseded the contract- 
ural rights previously existing between the Commonwealth and the 
defunct Boston & Worcester and Western Railroad companies. 

The language relating to the price to be paid, in the charter of 
the Boston & Worcester Railroad Company, was " the amount 
expended in making said railroad and the expense of repairs, and 
all other expenses relating thereto." In the statute of 1832, mod- 
ifying the provisions of the original charter, and in the charter of 
the Western Railroad Company, the language again was ''the 
amount expended in making said railroad." The language in 
St. 1839, c. 70, above referred to, relating to the Western Rail- 
road Company, was ''such a sum as will reimburse them" (the 
corporation) " the amount of capital paid in." Substantially the 
same phrase was used in St. 1867, c. 270, which provided for 
the payment of " such a sum as will reimburse it the amount of 
capital paid in." 

In view of the fact, as before stated, that it was contemplated 
that the roads when built should be paid for out of the capital 
stock of the company, I have no reasonable doubt that all the 
phrases quoted have substantially the same meaning ; and that it 
was the intention of the Legislature that the Commonwealth in 
the event of purchase should be required to pay to the corporations 
all moneys expended in the construction of the railroad and its 
equipment. It would be unreasonable to hold that the Common- 
wealth could acquire the property of a railroad company built in 
part by the proceeds of money borrowed therefor under authority 
of the Commonwealth, and pay only such portion of the cost as 
would be represented by the capital stock, leaving the corporation 
to discharge its own indebtedness. The words " capital paid in," 
therefore, in St. 1867, c. 270, § 17, are not to be taken as equiva- 
lent to the amount of capital stock outstanding, but signify the 
whole amount expended by the corporation in the construction and 
equipment of its railroad. 

In addition to the special legislation upon the subject, the gen- 
eral laws provide a method by which the Commonwealth may pur- 
chase any railroad within its jurisdiction. Pub. Sts., c. 112, § 7, 



22 ATTORNEY-GENERAL'S REPORT. [Jan. 

is as follows : " The Commonwealth may at any time during the 
continuance of the charter of a railroad corporation, after the 
expiration of twenty years from the opening of its road for use, 
purchase of the corporation its road and all its franchise, property, 
rights and privileges, by paying therefor such sum as will re- 
imburse to it the amount of capital paid in, with a net profit 
thereon of ten per cent, a year from the time of the payment 
thereof by the stockholders to the time of the purchase." 

This section was first enacted in substantially the same form in 
Rev. Sts., c. 39, § 84, and was practically contemporaneous with 
the early special statutes upon the subject of purchase. I am of 
opinion, therefore, for the reasons already stated, that the expres- 
sion "capital paid in" in this section does not mean simply the 
amount of capital stock outstanding, but that it is to be con- 
strued like similar expressions in the special statutes, as meaning 
the net amount expended in the construction of the road and its 
equipment, whether raised by issue of shares or by loans. This 
being so, the section of the Public Statutes under consideration 
does not differ essentially from the provisions imposed in the con- 
solidation statute of 1867 relating to the Boston & Albany Rail- 
road ; and what I have said in reference to the construction of the 
special statute applies in all respects to the general provision 
above quoted. 

The amount to be paid for the Boston & Albany Railroad in 
case of purchase may be stated, therefore, as follows : the Com- 
monwealth must pay such a sum as will reimburse the road the 
" cost of making the railroad," with a net profit thereon of ten per 
cent, a year. For the purpose of this computation, it is of no con- 
sequence whether this cost was paid from the proceeds of shares, 
or from bonds issued or loans efifected by the corporations. By 
"cost" is meant the actual amount of money expended in the 
construction of the railroad and its equipment, regardless of debts 
outstanding and regardless as well of the amount or value of the 
capital stock outstanding at the time of such purchase. 

There are doubtless many diflficult questions of detail to be met 
with in the application of these general rules. It would be im- 
possible to state, much less to meet and consider, such questions 
until they arise ; and I have not attempted in this opinion to do 
more than to set forth what in my opinion are the general rules of 
compensation to be paid in event of such purchase. 

Question 3, in the order of February 13, inquires: "At what 
probable or approximate price, under existing laws and charters, 
could the Boston & Albany Railroad be bought by the Common- 
wealth on March 1, 1900?" Question 1, in the order of February 



1901.] PUBLIC DOCUMENT— No. 12. 23 

14, inquires, referring to the taking or purchase of the road by the 
Commonwealth, "How much would such taking or purchase cost 
the Commonwealth?" 

These are not questions of law. I have set forth above the 
basis upon which the cost in either method is to be ascertained ; 
further than this I do not feel authorized or required to go. 

Question 1, in the order of February 13, above quoted, further 
inquires, relating to the taking by purchase or otherwise of the 
property of the Boston & Albany Railroad Company, "How and 
to what extent would those rights and said cost be changed, if at 
all, by the ratification of the lease as proposed in the bill now 
before the General Court?" 

The right of taking by eminent domain is based upon the Con- 
stitution, and cannot be annulled or hampered as to any Legislat- 
ure by the acts of a previous Legislature. The right, therefore, 
of taking the property for public uses under the Constitution is 
not affected by the ratification of the proposed lease. 

I am further of the opinion that the ratification of the proposed 
lease does not deprive the Commonwealth of its rights to purchase 
reserved to it in the charters of the corporations and the special 
laws above set forth. The exercise of that right is no more incon- 
sistent with the rights of the lessee than it would be with those of 
the lessor if no lease had been made. The contracting parties are 
presumed to have had in mind the existence of the rights reserved 
to the Commonwealth, and to have executed their lease subject 
thereto. If the Commonwealth assents to the lease, it does not 
expressly, or in my opinion by implication, waive or surrender any 
rights reserved to it under existing laws. 

In case the Commonwealth should exercise its rights of pur- 
chase, I do not see how the question of cost would be affected by 
the existence of the lease, excepting in respect to the property 
proposed to be purchased by the lessee for the sum of $5,500,000, 
the questions arising upon which will be considered hereafter. In 
case the property should be taken by the Commonwealth in the 
exercise of the right of eminent domain during the continuance of 
the lease, the lessee would undoubtedly have the right to recover 
the damages, if any, accruing to it by the destruction of its lease- 
hold interest. 

4 (order of February 13). "Could the Commonwealth, after 
the ratification of the proposed lease and the carrying out of 
the supplemental agreement, buy the Boston & Albany Railroad 
for as much less than before said ratification and carrying out as 
is the amount ($5,500,000 in bonds) to be paid by the New York 
Central & Hudson River Railroad Company for the property 



24 ATTORNEY-GENERAL'S REPORT. [Jan. 

excepted from the lease and described in schedule A annexed 
thereto?" 

The sum of $5,500,000 referred to in this question is the pro- 
ceeds of property belonging to the lessor sold by it to the lessee. 
Upon the consummation of the lease and sale the property will 
cease to be a part of the railroad property which would be included 
in the taking of such property by the Commonwealth in the exer- 
cise of its right of eminent domain, or in the purchase thereof 
under its statutory rights. The value of the property so sold 
should, in my opinion, be deducted from the damages in the case 
of taking, and from the price to be paid in the case of purchase. 
In the latter case, the price to be paid is the cost of making the 
railroad. Whatever sums have heretofore been expended for the 
property so sold should be credited upon this cost. This credit 
would not necessarily be the price for which the property is sold 
to the New York Central & Hudson River Railroad Company, but, 
as to the land at least, its actual cost when acquired by the rail- 
road company. If it had been acquired at a less cost than the 
said sum of $5,500,000, the railroad would be entitled to the ben- 
efit of the increase ; correspondingly, if the cost of the land was 
greater, the loss would fall upon the railroad company. 

5 (order of February 13). " Is it in accord with public policy, 
as declared in legislation of the Commonwealth and the decisions 
of its Supreme Judicial Court, that the property (and especially 
the parcel of land) included in schedule A, annexed to the proposed 
lease, and described in the first clause of the lease as ' not needed 
for the railroad purposes ' of the New York Central & Hudson 
River Railroad Company, should be sold to said company, and in 
the manner prescribed in the supplemental agreement?" 

The proposed transaction referred to in this question is the sale 
of certain property of the lessor, a domestic railroad corporation, 
to the lessee, a foreign railroad corporation. 

Upon such investigation as I have been able to make, I have 
not discovered that any such transaction has heretofore taken place 
in this Commonwealth ; and I am not aware of any case in the 
courts of the Commonwealth in which such a transaction has been 
discussed, nor of any legislation, enacted or proposed, in relation 
to such a transaction. There is, therefore, no declared policy of 
the Commonwealth upon the subject. 

The foregoing appears to answer the question proposed, so far 
as the same can be answered. I may properly add, however, that 
it is doubtful whether the question submitted is one of law, the 
duty of answering which is incumbent upon the Attorney-General. 
Questions of public policy are peculiarly within the province of the 



1901.] PUBLIC DOCUMENT — No. 12. 25 

Legislature. The term " public policy" may be defined to mean 
whatever is declared by the Legislature, within its authority under 
the Constitution, to be wise or expedient. That body is not, and 
cannot be, bound or even guided by declarations of a preceding 
Legislature. This being so, the question submitted is, in essence, 
as a matter of public policy, should the Legislature authorize the 
transaction proposed? Upon such a question it is unnecessary to 
observe that the Attorney-General would not be authorized to 
express an opinion. 

6 (order of February 13). " Under the first clause of the pro- 
posed lease, and the supplemental agreement, could the Boston & 
Albany Railroad Company distribute annually among its stock- 
holders the interest ($192,500) received from the $5,500,000 
bonds?" 

7 (order of February 13). " Under the first clause of the pro- 
posed lease, and the supplemental agreement, could the Boston & 
Albany Railroad Company sell the $5,500,000 bonds and distribute 
the proceeds among its stockholders?" 

The bonds referred to in the foregoing questions are the pro- 
ceeds of certain property to be sold by the Boston & Albany Rail- 
road Company to the New York Central Railroad Company, upon 
the execution of the proposed lease. It is declared in the first 
article of the lease that the property so sold is *' not needed for 
the railroad purposes of the lessee." It is obvious that, if the 
lease be executed, the property will not be needed for the railroad 
purposes of the lessor, and will become assets in the hands of the 
Boston & Albany Railroad Company, to be disposed of as it sees 
fit, unless restrained by some provision of law. 

The only statute bearing, even remotely, upon the subject, is 
St. 1893, c. 315, which is substantially a re-enactment of Pub. 
Sts., c. 112, § 61. The first section of the statute referred to pro- 
vides as follows : "No . . . steam railroad . . . company estab- 
lished under the laws of this Commonwealth shall declare any 
stock or scrip dividend, or divide the proceeds of the sale of stock 
or scrip among its stockholders. Nor shall any such company 
create any additional new stock, or issue certificates thereof to 
any person, unless the par value of the shares so issued is first 
paid in cash to the treasurer." 

In 1882 the Commonwealth, in accordance with the provisions 
of St. 1882, c. 121, assigned to the Boston & Albany Railroad 
Company about 24,000 shares of the capital stock of the corpora- 
tion, receiving in exchange therefor five per cent, bonds of the 
corporation. The corporation held the stock until Sept. 27, 1883, 
on which day it voted to distribute about 17,000 shares of the stock 



26 ATTORNEY-GENERAL'S REPORT. [Jan. 

so purchased from the State among its stockholders. A bill in 
equity was brought by the Attorney-General to restrain this issue. 
He relied principally upon the provisions of the statutes above re- 
ferred to. It was held by the court, however, that, although 
literally the division of the stock so purchased was a stock divi- 
dend, yet, in view of the fact that under the terms of the statute 
authorizing the sale the shares so purchased belonged to the cor- 
poration, with the right to hold and dispose of the same as its ab- 
solute property, the provisions of the Public Statutes, which, as I 
have already stated, were substantially re-enacted in the statute in 
1893, were not effectual to restrain the company from dividing 
property which it held free of all trusts among its stockholders. 
Com, V. B. & A. R.R. Co., 142 Mass. 146. 

I am of the opinion that the doctrine of this case, as well as the 
general principles of law applicable to corporations and corporate 
property, are conclusive of the questions submitted, and that 
the bonds acquired by the Boston & Albany Railroad under the 
terms of the lease and agreement, when ratified by the Common- 
wealth, will become its absolute property, and that the interest 
of the bonds may be divided among its stockholders ; and that 
it may also sell the bonds and divide the proceeds among the 
stockholders. 

8 (order of February 13). "Under the proposed lease, and 
especially the third clause thereof, could the New York Central & 
Hudson River Railroad Company assign the lease, or underlet the 
main line of the Boston & Albany Railroad or the main line of 
any of the branches of the latter, by obtaining the consent in 
writing of the latter and without obtaining the consent of the 
Commonwealth? " 

9 (order of February 13). "Under the proposed lease, and 
especially the tenth clause thereof, could the New York Central & 
Hudson River Railroad Company and the Boston & Albany Rail- 
road Company modify, change, amend, annul or cancel the lease 
by mutual agreement and without obtaining the consent of the 
Commonwealth ? " 

The third clause of the proposed lease is as follows : ' ' The 
lessee shall not assign its lease nor underlet either the main line of 
the lessor's railroad or the main line of any of its branches with- 
out the consent in writing of the lessor." 

The tenth clause is as follows : " Nothing herein contained shall 
prevent the lessor and lessee from modifying, changing, amending, 
annulling or cancelling this lease by mutual agreement." 

I am of opinion that the consent of the Commonwealth to the 
proposed lease, though containing the terms above quoted, does 



1901.] PUBLIC DOCUMENT — No. 12. 27 

not operate as a repeal of the laws of the Commonwealth in rela- 
tion to the leasing of railroad corporations. The Commonwealth 
is not a party to the lease, and does not become so in the sense 
that it is estopped from executing its own laws, excepting, of 
course, that it suspends its general prohibitions so far as to consent 
that the Boston & Albany Railroad may be leased to the lessee 
named. The stipulations in the lease itself, relating to the rights 
of the parties as to assigning, underletting, annulling or altering 
the lease, are binding upon the parties thereto. But they are 
deemed to be entered into in view of the laws of the Common- 
wealth governing these subjects, none of which is waived in favor 
of the parties by the consent of the Commonwealth to the execu- 
tion of the lease. The rights of the parties, therefore, upon this 
question, depend, so far as the Commonwealth is concerned, not 
upon the terms of the lease, but upon the laws of Massachusetts. 
It is scarcely necessary to say that the State of New York has no 
power to enact a law authorizing the leasing of a railroad in 
Massachusetts in violation of the laws of the Commonwealth. 

It is well settled in this Commonwealth that railroads within its 
jurisdiction may not be leased excepting by its consent. Railroad 
corporations cannot divest themselves of the obligations to the 
public which they assumed when they accepted their charters by 
turning over such obligations so imposed to be performed by 
others, whether by lease or otherwise. The only exception is the 
express statute provision (Pub. Sts., c. 112, § 220) authorizing a 
railroad connecting with another railroad to lease its road to the 
connecting corporation. With this exception, any contract, such 
as a lease, by which a railroad corporation undertakes to divest 
itself of the duties imposed upon it by its charter is ultra vires, 
and, consequently, void. 

These considerations govern the questions submitted. The 
underletting or sub-leasing of a railroad by a lessee is, in effect, a 
transfer of the obligations of the lessee to another party. If a 
lease is authorized by the sovereign, the lessee succeeds to the 
duties of the original company, and has no more right to divest 
itself of those duties than had the original company itself. It 
follows that the lessee in the proposed lease has no authority to 
assign its lease or to underlet the lines of the Boston & Albany 
Railroad or any of the branches acquired by the lease. 

For the same reasons, the lease cannot be modified, amended or 
changed by the contracting parties without the consent of the 
Commonwealth. Such changes, modifications or amendments 
would constitute a new lease, and the principles of law governing 
leases would be in force as to such new lease. 



28 ATTORNEY-GENERAL'S REPORT. [Jan. 

It is the inherent right of parties to a contract, in the absence 
of any statutory provisions to the contrary, and whether so 
formally expressed in the contract or not, to cancel by mutual 
agreement any contract into which they may have entered. There 
is nothing in the laws of the Commonwealth which forbids the 
annulling by the parties of a railroad lease. I am of opinion, 
therefore, that the lease proposed may at any time be annulled by 
the joint action of the parties thereto. 

Although it is not within the scope of the question submitted, I 
may further say that the question of what remedy the Common- 
wealth may have, should the lessee assign its lease, especially to 
another foreign corporation, is one of more difficulty. As I have 
before said, such an assignment of the lease would be ultra vires 
and void. I have referred, in my answer to a succeeding ques- 
tion, to the statutes conferring jurisdiction upon our courts to 
entertain a suit by the Commonwealth against the lessee for viola- 
tion of its duties to the Commonwealth. The assignee of the 
lessee, if a foreign corporation, would be subject to the provisions 
of the same statutes. The federal courts in the jurisdictions of 
the foreign corporations would also be open to the Commonwealth. 
Whether these provisions are sufficient, and whether it is wise to 
make further provisions guarding the rights of the Commonwealth 
in the case of such an attempted assignment or sub-letting, is a 
matter properly for the consideration of the Legislature rather than 
of the Attorney-General. 

2 (order of February 14). "If the property and franchises of 
the Boston & Albany Railroad Company are leased to the New 
York Central & Hudson River Railroad Company, with the assent 
of the Commonwealth, as proposed in said bill, and the law in 
regard to returns to the Board of Railroad Commissioners remains 
as it is, will either of said corporations thereafter be compelled to 
make such returns showing the receipts, expenses and profits from 
the operation of the Boston & Albany Railroad ? " 

There are two statutes relating to returns by railroad corpora- 
tions, viz.. Pub. Sts., c. 112, §§ 81 to 83, and St. 1893, c. 131. 
It does not appear that the latter statute is intended to be a repeal 
of the provisions in the Public Statutes. 

Pub. Sts., c. 112, § 81, provides, among other things, that 
every railroad corporation shall annually, on or before the first 
Wednesday of November, transmit to the Board of Railroad Com- 
missioners a report of its doings for the year ending on the thir- 
tieth day of September preceding, to be called the annual return. 
Such report shall include a detailed statement of all particulars 
respecting the railroad, its business, receipts and expenditures 



1901.] PUBLIC DOCUMENT — No. 12. 29 

during the year, in such form as shall be, from time to time, pre- 
scribed by the Board, under section 26 of the same chapter. When 
a domestic corporation leases the railroad of another domestic cor- 
poration, the returns prescribed by section 83 shall be made by the 
lessee, and during the continuance of the lease the lessor is not 
required to make such returns. The section further provides, 
however, that, '' if a railroad in this Commonwealth is leased to a 
corporation or party in another State, the lessors in this Common- 
wealth shall make the annual return." 

The clause quoted applies to the parties to the proposed lease. 
I do not think, as has been suggested, that, in case the lease is 
effected, the Boston & Albany Railroad Company will discharge 
its duty by making returns merely of the rent received under the 
lease and the payments of dividends, bond interest and organization 
expenses. Such returns are sufficient in the case of corporations 
whose roads are leased to other domestic corporations, because in 
such cases all the detailed returns of the business of the road are 
to be made by the lessee. This lease being to a foreign corporation, 
the statute imposes upon the lessor the whole burden of the annual 
returns, and I am of opinion that all the obligations now incumbent 
upon the Boston & Albany Railroad under the Public Statutes will 
continue in full force in the event of the execution of the proposed 
lease. Whether the returns provided for by the sections in ques- 
tion are sufficient to show the " receipts, expenses and profits from 
the operation of the Boston & Albany Railroad," I am not in- 
formed. If they are so now, they will none the less be so after 
ratification of the proposed lease, for they must then still be in the 
same form and must contain the same details. 

How the Boston & Albany Railroad Company may supply itself 
with information to make the returns required is not pertinent to 
the present inquiry. It appears, however, to have attempted to 
guard itself by article 6 of the lease, which provides that the les- 
see shall " furnish the lessor with such statements and accounts in 
his possession and control as are requisite to enable the lessor to 
make all returns by law required of it ; and shall permit and afford 
suitable facilities for the officers of the lessor, by themselves or by 
agents appointed by them, to examine the demised property once 
each year, so far as may be necessary to ascertain the condition 
thereof." The lease further provides, in article 9, that the con- 
tract may be annulled by the lessor upon neglect or failure of the 
lessee to perform either of the covenants of the lease. This would 
seem to give to the Boston & Albany Railroad Company full power 
to obtain all facts necessary to make the returns required of rail- 
road companies by the commissioners. 



30 ATTORNEY-GENERAL'S REPORT. [Jan. 

St. 1893, c. 131, provides as follows : " Every railroad corpora- 
tion operating a railroad within this Commonwealth shall, within 
fifty days after the expiration of each quarter of the calendar year, 
transmit to the board of railroad commissioners a quarterly state- 
ment of its business and financial condition, made up in such 
form and with such detail as said board may require ; and such 
statement shall at reasonable times be open to public inspection. 
A railroad corporation neglecting to make and transmit any such 
quarterly statement within the time above prescribed shall forfeit 
fifty dollars for each day's neglect." 

If the lease goes into effect, the New York Central & Hudson 
River Railroad Company will become the railroad corporation 
operating the railroad within the meaning of this act. The duty 
of complying with the provisions of this statute, consequently, 
will fall upon the lessee and not upon the lessor. 

A further question arises whether this statute can be enforced 
against the lessee, a foreign corporation. The penalty for neglect 
to comply with the provisions of the statute is a forfeiture of fifty 
dollars per day. By Pub. Sts., c. 217, § 2, a forfeiture accruing 
to the Commonwealth may be recovered in an action of tort. 
Such action, however, cannot be maintained in the courts of the 
Commonwealth unless jurisdiction be obtained against the foreign 
corporation, by attachment of property or by the consent of the 
corporation. 

St. 1884, c. 330, § 1, provides that every foreign corporation 
having a usual place of business in this Commonwealth shall 
appoint, in writing, the Commissioner of Corporations to be its 
attorney for the service of process, and shall agree that any 
process served on such attorney shall be of the same legal force 
and validity as if served upon the company. Section 3 of the 
same chapter provides that every officer of the corporation which 
fails to comply with the requirements of this act, and every agent 
of such corporation who transacts business as such in this Com- 
monwealth, shall, for such failure, be liable to a fine not exceed- 
ing five hundred dollars. Under this statute it will be the duty of 
the lessee corporation to appoint an attorney and enter into such 
agreements as will give the courts of this State jurisdiction to 
entertain suits against it, including, of course, actions of tort for 
failure to make returns. If it fails to appoint such attorney, every 
agent of the corporation within this State is liable to the fine 
prescribed. 

Whether these provisions of law are sufficient to enable the 
Commonwealth and its officers to secure the returns required, and 



1901. J PUBLIC DOCUMENT — No. 12. 31 

whether additional restrictions should be imposed by the Legislat- 
ure looking to an increase of the power of the Commonwealth to 
enforce the provisions of its laws as against the lessee, are 
questions peculiarly for the consideration of the Legislature, 
rather than of the Attorney-General. 

It should be further said that by the sixth article of the pro- 
posed lease the lessee expressly agrees that it will "make all 
returns by law required of it." This provision, however, enures 
to the benefit of and may be enforced by the lessor, and may 
not be availed of by the Commonwealth. 

3 (order of February 14). "Prepare and furnish to the House 
of Representatives a collection of all the special legislation affect- 
ing said railroad, or the corporations operating the same, from the 
time of and including the charters thereof." 

While entertaining the highest respect for the authority of the 
Honorable House of Representatives, I am of opinion that the 
foregoing order is not a question of law within the meaning of 
Pub. Sts., c. 17, § 7, making it the duty of the Attorney-General 
to " give his opinion upon questions of law submitted to him by 
either branch of the General Court, or by the Governor and Coun- 
cil," and that it is not within the jurisdiction of the House of Rep- 
resentatives to require of the Attorney-General the performance of 
the duty imposed by this order. 

I beg to inform the Honorable House of Representatives, how- 
ever, that for my own use in answering the questions submitted I 
have caused to be prepared elaborate and detailed schedules, not 
only of the " special legislation affecting the Boston & Albany 
Railroad, and the corporations operating the same from the time 
of and including the charters thereof," but of many of the general 
railroad laws affecting the questions submitted. These schedules 
are at the service of the House of Representatives, or of such 
committees of the Legislature as may desire to use them, and for 
that purpose are herewith transmitted. 
Respectfully submitted, 

HosEA M. Knowlton, Attorney- General. 



Medfield Insane Asylum — Appropriation. 

The appropriation of $25,000, under St. 1897, c. 205, for the use of the 
trustees of the Medfield Insane Asylum in completing the asylum, is 
not governed by the statutes relating to annual appropriations, pro- 
viding that if not expended within two years such appropriation shall 
lapse. 



32 ATTORNEY-GENERAL'S REPORT. [Jan. 

A reservation of $2,000, made by the trustees and not by the Legislature, 
becomes, when the purposes for which it was reserved are accomp- 
lished, available for use in accordance with the original purposes of 
the appropriation. 

April 4, 1900. 
W. O. Blanet, Esq., Chairman, 

Chamber of Commerce Building, Boston, Mass. 

Dear Sir: — I have your letter of the 29th, stating that after 
settling all possible claims for land damages, $2,000 of the appro- 
priation granted your commission under St. 1897, c. 205, which had 
been reserved to pay such damages, is now available ; and requiring 
my opinion upon the question whether it can be used for extending 
the water system of the asylum and supplying the stock barn. 

The statute in question appropriated the sum of $25,000 for the 
use of the trustees in completing the asylum. There is nothing in 
the act which requires you to set aside any balance for land dam- 
ages, although, of course, it was your duty to see that they were 
paid from the appropriation. The reservation of $2,000 therefore, 
being voluntary and not made by the Legislature, becomes, when 
the purposes for which you have reserved it are accomplished, 
available for use in accordance with the original purposes of the 
appropriation, and may be so expended. 

This appropriation is not governed by the statutes relating to 
annual appropriations, providing that they shall be expended 
within two years, and if not so expended shall lapse. 
Very truly yours, 

HosEA M. Knowlton, Attorney- General. 



Boston^ Cape Cod & New York Canal Company — Issue of 
Stock not representing Cost of Construction — Watered Stock. 

A bill to amend the charter of the Boston, Cape Cod & New York Canal 
Company, instead of providing for the authorization of stock and 
bonds from time to time, as the needs of construction require, and 
for the expenditure of the proceeds only in such construction, re- 
quires the joint board provided for in the charter to ascertain in 
advance the entire cost of the canal, and to authorize the issuance of 
the whole amount of stock and bonds needed to cover the cost so as- 
certained. If the actual cost of construction should be less than such 
estimate by the joint board, the balance of stock not required for 
purposes of construction would become the property of the corpora- 
tion, and, in so far as it did not stand for nor represent capital actually 
invested, would be " watered stock." 

April 6, 1900. 
Hon. George E. Smith, President of the Senate. 

Dear Sir : — I have the honor to acknowledge the receipt of a 
copy of the order adopted by the Honorable Senate April 5, 



1901.] PUBLIC DOCUMENT — No. 12. 33 

requiring the opinion of the Attorney-General upon the following 
question, to wit: " Would the enactment of House Bill No. 976, 
being an act relative to the Boston, Cape Cod & New York Canal 
Company, as amended by the House and by the Senate on April 
4, 1900, afford to the Boston, Cape Cod & New York Canal 
Company under any circumstances the opportunity in the issue 
of their securities to practice what is commonly known as stock 
watering ? " 

Inasmuch as the original charter of the company (St. 1899, 
c. 448) provides that the stock and bonds authorized therein shall 
be issued under the provisions of St. 1894, c. 462 (being what is 
commonly called the anti-stock-watering act relating to steam and 
street railways) , I assume that the purpose of the question sub- 
mitted is practically to require the opinion of the Attorney-General 
on the question whether the amendment excepting the company 
from certain of the provisions of that act so far modifies the act as 
to make it possible for the company to issue stock not representing 
capital actually invested. 

I understand stock watering to be the issuance of stock not 
based upon capital actually invested. The anti-stock-watering act, 
to which I refer (St. 1894, c. 462), is intended to prevent the 
possibility of such over-issuance. It provides, in substance, that 
railroad and street railway companies shall " hereafter issue only 
such amounts of stock and bonds as may from time to time, upon 
investigation by the board of railroad commissioners, be deemed 
and be voted by them to be reasonably requisite for the purposes 
for which such issue of stock or bonds has been authorized." The 
act further provides that the " vote of the board approving such 
issue shall specify the respective amounts of stock and bonds 
authorized to be issued for the respective purposes to which the 
proceeds thereof are to be applied." And to make it certain that 
such stock and bonds shall represent only expenditures actually 
incurred, the act further provides that " no company included in 
the terms of this act shall apply the proceeds of such stock or 
bonds to any purpose not specified in such certificate." 

The present bill amends the original charter by modifying cer- 
tain of the provisions of the anti-stock-watering act in their appli- 
cation to this company. Instead of providing for the authorization 
of stock and bonds from time to time, and only as needs of con- 
struction require, and providing that the proceeds shall be expended 
only in such construction, it requires the joint board to ascertain 
in advance the entire cost of the canal and its equipment, and to 
authorize, in the first instance, the issuance of the whole amount 
of stock and bonds which will be needed to cover the cost so ascer- 
tained. It contains no provision for cancellation of any stock 



34 ATTORNEY-GENERAL'S REPORT. [Jan. 

which shall prove not to be required, in case it shall turn out that 
the estimate of the joint board was in excess of the actual cost. 

If the joint board is able to ascertain definitely the cost of con- 
struction and equipment of the canal, there appears to be no more 
liability to stock watering in the present bill, as amended, than in 
the original charter. If, however, the actual cost of construction 
shall prove to be less than the estimate so fixed in advance by the 
joint board, the balance of stock in the hands of the State 
Treasurer not required for the purposes of construction will 
become the property of the corporation, and, in so far as it does 
not stand for nor represent the cost of construction, will be, as I 
understand the term, watered stock. 

In this aspect of the case, the question, therefore, is one of fact 
rather than of law. In case the board shall be able to estimate 
correctly the cost of the canal, and shall authorize the issuance of 
only so much stock and so many bonds as are equivalent to such 
cost, there will apparently be no opportunity for stock watering. 
But if, on the other hand, the board over-estimates the cost, there 
being no provision for cancellation of stock and bonds which 
prove to be not actually needed for the purpose of construction, 
the issuance of the whole stock having been authorized in advance, 
the result will be that the surplus stock and bonds to which the 
company may so become entitled will be stock not representing 
capital actually invested, and will come within the definition of 
what I understand to be watered stock. 

I have the honor to be, with great respect, 
Yours very truly, 

HosEA M. Knowlton, Attorney- General. 



Insurance — Reinsurance — Form of Contract. 

A contract of reinsurance is not a contract of insurance " on property " 
within the meaning of St. 1894, c. 522, § 60, and such contracts en- 
tered into by insurance companies need not be in the standard form 
required by that section. 

April 6, 1900. 
Hon. Frederick L. Cutting, Insurance Commissioner. 

Dear Sir : — Your letter of April 3 requires the opinion of the 
Attorney-General upon the question whether contracts of reinsur- 
ance entered into by insurance companies must be in the standard 
form provided by St. 1894, c. 522, § 60. 

The section in question provides that insurance companies mak- 
ing contracts of insurance "on property" must issue them in the 
standard form. A contract of reinsurance, however, is not a con- 
tract of insurance on property, within the meaning of that section. 



1901.] PUBLIC DOCUMENT — No. 12. 35 

The original policy is such an insurance upon property, but rein- 
surance is merely a contract between two companies that the rein- 
suring company will assume the whole or a portion of the risk 
taken by the original company. There is no statute, therefore, 
requiring the contract of reinsurance to be in the standard form, or 
in any other particular form. 

The law requiring contracts of insurance to be made in the 
standard form is for the benefit of insured who might otherwise 
not easily understand all the provisions contained in the policy 
which they receive. Contracts of reinsurance, however, are en- 
tered into between insurance companies who are able to protect 
themselves, and may therefore make such contracts as they see fit. 
Yours very truly, 

HosEA M. Knowlton, Attorney-General, 



Pauper — Married Woman — Domicile — Settlement. 

In Pub. Sts , c. 83, § 1, cl. 7, which provides that only such married 
women as have not a settlement "derived by marriage " may gain a 
settlement by residence, the words "derived by marriage" signify 
an existing marriage. 

Therefore, a married woman settled under a previous marriage, which has 
been terminated by the death of the husband, is not prevented from 
acquiring a new settlement by residence. Where a wife, deserted by 
her husband, remains for a period of more than twenty years where 
their joint domicile had been, she will not be debarred from gaining 
a settlement hy the fact that he has had no settled place of residence 
since the time of such desertion. 

April 6, 1900. 

J. L. Lewis, Esq., Deputy Superintendent, State Adult Poor. 

Dear Sir : — Your letter of January 1 1 requires the opinion 
of the Attorney-General as to the settlement of a female, upon 
the facts stated in a history annexed to the letter, which is sub- 
stantially as follows : — 

The female in question was born in Northampton, in 1847. 
She was married in 1868 to a man wlio had a military settlement 
in Shutesbury. This husband died in 1869. In 1871 she was 
married a second time, and removed with her husband in 1873 to 
Worcester, where she has since resided. She had aid in 1886 for 
her child by her first husband. This aid was furnished by Worces- 
ter, and for it Worcester was reimbursed by Shutesbury. 

Her second husband abandoned his family in Worcester in 1875. 
" He has not lived with his wife since, and has done nothing for 
her support. He has resided most of the time since leaving her in 
New York and Washington, D. C. He has made occasional 
visits to Massachusetts, but never to remain over two or three 



36 ATTORNEY-GENERAL'S REPORT. [Jan. 

weeks. His wife saw him in Amherst, on the street, in 1896. 
He has gained no settlement in his own right. " 

The woman in question acquired a settlement in Shutesbury 
through the military settlement of her first husband in that place. 
After his death, in 1869, she came within the retroactive provi- 
sions of Pub. Sts., c. 83, § 1, els. 6 and 7, which are as follows : 
'* Sixth, Any woman of the age of twenty-one years, who resides 
in any place within this state for five years together, shall thereby 
gain a settlement in such place. " " Seventh, the provisions of 
the preceding clause shall apply to married women who have not a 
settlement derived by marriage under the provisions of the first 
clause, and to widows ; and a settlement thereunder shall be 
deemed to have been gained by an unsettled woman upon the 
completion of the term of residence therein mentioned, although 
the whole or a part of such term has already elapsed." If she 
had remained a widow, she would have acquired a settlement in 
Worcester by her residence in that city for five years after 1873. 
Her second marriage being to a man who had no settlement, and 
from whom, consequently, she could derive no settlement' her 
right to acquire a settlement by residence was not defeated by such 
marriage. It is true the language of clause 7 makes the provisions 
of clause 6 apply to " married women who have not a settlement 
derived by marriage." These words, however, obviously are to 
be taken to signify a settlement derived by an existing marriage, 
and do not prevent married women settled under a previous mar- 
riage, which has been terminated by the death of the husband, 
from acquiring a new settlement by residence. 

Nor was she debarred from gaining a new settlement in Worces- 
ter by reason of the fact that her husband has had no settled 
place of residence since 1875. He was domiciled in Worcester 
until that time, and after his desertion of her, she remaining 
where their joint domicile had been, I am of opinion that her dom- 
icile cannot be taken to have shifted with his throughout his wan- 
derings. The former rule that a wife's domicile must, in all cases, 
be identical with her husband's, is now subject to many excep- 
tions. Attorney-General's Report, 1899, 13. See also Burtis v. 
Burtis, 161 Mass. 508. Notwithstanding his changes of residence, 
I am of opinion that she resided in Worcester within the meaning 
of that word as used in the statutes relating to settlement. 

It is scarcely necessary to say that the aid furnished to the 
child of her first marriage in 1886 does not affect the question. 
The child's settlement followed that of his father, which was in 
Shutesbury. 

Yours very truly. 

Hose A M. Knowlton, Attorney- General. 



1901.] PUBLIC DOCUMENT — No. 12. 37 



Residence — Enlistment. 

A person is, in general, a resident of Massachusetts who lives in the Com- 
monwealth with the intention of having his home there. A person so 
residing in Massachusetts, who was mustered into the regular army, 
whether naturalized or not, comes within the provisions of St. 1898, 
c. 561, § 1. 

April 12, 1900. 
Hon. Edward S. Bradford, Treasurer of the Commonwealth. 

Dear Sir : — Replying to your letter of April 4, I have to say 
that, in my opinion, the word '' residents," as used in St. 1898, 
c. 561, § 1, providing that there shall be paid " to residents of 
Massachusetts naustered into the regular army or navy or into the 
volunteer brigade of engineers of the United States during the 
present war, the sum of seven dollars per month," is not limited 
to persons who are citizens of Massachusetts. The act is remedial, 
and is to be liberally construed ; and I am clearly of the opinion 
that the inducements to enlistment held out by the act were in- 
tended to be for the benefit of all persons living in the Common- 
wealth, whether naturalized or not. 

What constitutes residence is largely a question of fact. I can 
only say, in general, that a person is a resident of Massachusetts 
who lives in the Commonwealth with the intention of having his 
home here. A person who was living in Massachusetts, making it 
his home, and while so residing was mustered into the regular 
army, comes within the provisions of the act. 

Although this general definition of residence may serve your 
purpose, it may, perhaps, be better, where the conclusions to be 
drawn from the facts seem to you to be doubtful, to refer the case 
to this office for more specific consideration. 
Yours very truly, 

HosEA M. Knowlton, Attorney- General. 



City of Holyoke — Holyoke Water Power Company — Contract — 
Annual Paymeiit by City fixed by Valuation of Property — 
Assessors. 

The approval by the Legislature of a contract between the city of Holyoke 
and the Holyoke Water Power Company, providing that the company 
shall have certain rights "subject to such provisions of the general 
laws of Massachusetts now in force " as relate to such rights, will not 
serve to exempt the company from the operation of such laws there- 
after enacted as affect any rights or duties of the company as they 
exist under the laws now in force. 

A clause in such contract which provides that the price fixed in a lease for 
the use of lighting apparatus shall be increased or decreased as the 



38 ATTORNEY-GENERAL'S REPORT. [Jan. 

values put upon the property by the assessors increase or diminish, is 
not in conflict with the general laws of the Commonwealth relating to 
taxation, since it does not bind the assessors, who are not agents of 
the city, but a board of public officials acting under the authority of 
the statutes of the Commonwealth. 

April 13, 1900. 
To the Honor able the Senate and House of Representatives. 

I have the honor to acknowledge the receipt of a copy of a joint 
order of the Legislature, adopted April 10, requiring the opinion 
of the Attorney-General upon certain questions touching the con- 
struction of a contract which has been executed between the city 
of Holyoke and the Holyoke Water Power Company, in which con- 
tract it is stipulated that it shall be in force only when approved 
by the Legislature. 

The contract provides that " the party of the second part shall 
have the right to maintain and use an overhead system of lighting, 
and the right to lay down and maintain its pipes in said highways 
for the distribution of gas, subject to such provisions of the gen- 
eral laws of Massachusetts now in force (and of the present revised 
city charter of said city of Holyoke) as relate to the erection and 
maintenance of said overhead system and the laying and maintain- 
ing of said pipes." The joint order requires the opinion of the 
Attorney-General upon the question whether '' the effect of this 
clause would not be to exempt the company from the operation of 
all general laws relating to gas pipes and overhead wires which 
may be enacted by future legislation during the period covered by 
the contract." 

I presume it may be contended that the Legislature, by approv- 
ing the contract, so far becomes a party thereto that the use of the 
expression in the contract '' general laws of Massachusetts now in 
force" binds the Commonwealth as a contracting party not to im- 
pair the obligation of its contract so created by making any changes 
in existing general laws which shall affect any rights or duties of 
the company as they exist under the laws now in force. 

I am of opinion, however, that this contention is not well 
founded. The approval of the contract in question does not 
amount to a contract between the Commonwealth and the Holyoke 
Water Power Company that it will not amend or repeal existing 
laws relating to gas pipes and overhead wires. The contract itself 
is between the city and the company, and the effect of the clause 
in question is to estop the city from objecting to the maintenance 
by the company of gas pipes and overhead systems of lighting 
such as are authorized by existing laws. As a contract, it binds 



1901.] PUBLIC DOCUMENT — No. 12. 39 

only the parties thereto. The Commonwealth, by an act approv- 
ing the contract, authorizes the parties so to bind themselves, but 
does not bind or estop itself. 

The Legislature has, under the Constitution, the right to " make, 
ordain and establish all manner of wholesome and reasonable 
orders, laws, statutes, and ordinances, directions and instructions, 
either with penalties or without ; so as the same be not repugnant 
or contrary to this constitution, as they judge to be for the good 
and welfare of this Commonwealth." Const, of Massachusetts, 
c. 1, § 1, art. 4. The power granted by this clause is frequently 
referred to as the police power of the Legislature. The clause 
itself has been considered in many cases before the Supreme 
Judicial Court, and has almost uniformly been construed liberally 
as a grant of power to the Legislature. I am of opinion that the 
approval of the existing contract cannot be construed as a re- 
straint upon the power of the Legislature granted to it by the 
article of the Constitution quoted, and that it may, at any time, 
notwithstanding this contract, enact such general laws relating to 
gas pipes and overhead wires as it deems to be for the welfare of 
the Commonwealth and its citizens. 

The second question contained in the order is whether "the 
provisions in the said contract which relate to taxation and tax 
valuation are not in conflict with the laws of the Commonwealth 
relating to these matters." 

The clause referred to in this question is as follows: "The 
foregoing prices are based upon the valuations for taxation on 
the tax list of the said city of Holyoke, for the year 1898, of the 
electric light and gas plants belonging to said Holyoke Water 
Power Company within the city of Holyoke, including the valu- 
ation of the pipes and structures within the limits of the highways. 
If any of said valuations are hereafter increased or decreased, 
with the result that the taxes to be paid by said Holyoke Water 
Power Company upon said properties are increased or decreased, 
then the gross amount to be paid annually thereafter by the city 
for said lighting shall be increased or decreased by the amount of 
said increase or decrease of said taxes : provided^ however^ that 
this clause shall not apply to any general increase in valuation for 
the purpose of taxation of property throughout the city in which 
increase the said Holyoke Water Power Company shall share pro 
rata, nor to any extensions and improvements in said gas and 
electric light plants since May 1, A. D. 1898, nor to any new 
building on said plants which shall be erected in lieu of or for the 
purpose of taking the place of present buildings connected with 



40 ATTORNEY-GENERAL'S REPORT. [Jan. 

said plants, provided such new buildings exceed in value the 
present buildings, in which case this clause shall not apply to such 
excess of value. " 

This clause is not in conflict with the general laws of the Com- 
monwealth relating to taxation. It does not modify nor affect 
them. It merely provides that the prices fixed in the lease for the 
use of lighting apparatus shall be increased or decreased as the 
values put upon the property by the assessors of Holyoke are in- 
creased or diminished. It does not and cannot bind the assessors 
in any way. They are a board of public officers, acting under the 
authority of the statutes of the Commonwealth. They are inde- 
pendent of and are not the agents of the city of Holyoke. The 
municipality, which is the only party to the contract in question, 
has nothing to do with the matter of taxation. The contract does 
not attempt to fix the valuation, but only the price as dependent 
on such valuation. 

I therefore answer both questions submitted by the order in the 

negative. 

Respectfully submitted, 

Hose A M. Knowlton, Attorney-General. 



Charitable Corporation — Boston Lying-in Hospital — Patient hav- 
ing no Settlement within the Commonwealth. 

The Boston Lying-in Hospital is not a city hospital within the meaning of 

St. 1898, c. 391. 
The State Board of Charity may approve a bill for a " reasonable expense " 

for care of a patient having no settlement within the Commonwealth. 

April 18, 1900. 
John D. Wells, Clerk, State Board of Charity. 

Dear Sir: — Your letter of April 9 requires the opinion of the 
Attorney-General upon the question whether the State Board of 
Charity is authorized to approve bills rendered by the city of Bos- 
ton for the confinement of women having no settlement in this 
State, who are sent by the city of Boston to the Boston Lying-in 
Hospital, to be treated there during their confinement. Your 
letter further states that the precise inquiry is whether the Board 
is limited under the statutes to an allowance of $5 per week in 
such cases, the hospital in question being a charitable corporation, 
receiving no support from the city of Boston except as said city 
pays for individual cases sent to it. The charges of the hospital 
are in excess of $5 per week. 

St. 1898, c. 391, which governs the case, provides that: "The 
reasonable expense incurred by a city or town under the provisions 



1901.] PUBLIC DOCUMENT — No. 12. 41 

of the preceding section . . . sliall be reimbursed by the common- 
wealth . . . and not more than five dollars per week shall be 
allowed for the support of a person in a city or town hospital." 
The Boston Lying-in Hospital is not a city hospital, within the 
meaning of that expression as used in the statute. The hospital 
was incorporated by St. 1832, c. 21. The charter gave to it the 
powers usually granted to such corporations, but made it in no 
way subject to or dependent upon the city of Boston. 

I am of opinion, therefore, that the Board of Charity may 
approve a bill for a " reasonable expense," as provided in the 
statute, and that the Commonwealth's liability is not limited to $5 
per week. 

Yours very truly. 

Hose A M. Knowlton, Attorney -General, 



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

The Board of Registration in Pharmacy may, in its discretion, grant a new 
examination to a person whose certificate of registration as a phar- 
macist has been duly revoked by tlie Board. 

Where the Board has regularly revoked a license, it has no authority to re- 
consider such decree and to grant a new license without a new exam- 
ination. 

The Board may, however, reconsider a revocation decreed through mis- 
take of fact. 

April 21, 1900. 

John Larrabee, Esq., President, Board of Registration in Pharmacy. 
Dear Sir : — Your letter of April 4 requires the opinion of the 
Attorney-General upon two questions, to wit: — 

1. Can the Board of Registration in Pharmacy lawfully grant 
an examination, as provided in Section 5, chapter 397, Acts of 
1896, to a person whose certificate of registration as a pharma- 
cist has been revoked altogether, as provided in section 9 of said 
act? 

2. When the certificate of a registered pharmacist has been 
revoked altogether, as provided in section 9, chapter 397, Acts of 
1896, can the Board reconsider, revoke, change or modify its 
decision or sentence, the same having gone into effect? 

St. 1896, c. 397, governs the action of the Board in relation to 
the examination of persons desiring to do business as pharmacists. 
The material sections are as follows : — 

Section 5 (as amended by St. 1899, c. 422) Any person desiring to 
do business as a pharmacist shall upon payment of a fee of five dollars 



42 ATTOENEY-GENEEAL'S EEPOET. [Jan. 

be entitled to examination, and if found qualified shall be registered as 
a pharmacist, and shall receive a certificate signed by the president and 
secretary of said board. Any person may be re-examined after the ex- 
piration of three months, at any regular meeting of the board, upon the 
payment of a fee of three dollars. All fees received by the board under 
this act shall be paid by the secretary of the board into the treasury of 
the Commonwealth. 

Section 9. If the full board sitting at such hearing shall find that 
the person complained against is guilty of the acts'charged against him, 
said board may suspend his registration as a pharmacist and his certifi- 
cate thereof, for such term as the board in their judgment, after due 
consideration of the facts, may deem for the best interests of the public, 
or may revoke it altogether, but the license or certificate of registration 
of a registered pharmacist shall not be suspended or revoked for a 
cause punishable by law until after conviction by a court of competent 
jurisdiction. 

In a communication to your Board, dated Oct. 3, 1899, I stated 
it as my opinion that, notwithstanding the absence of any express 
provision to the contrary, your Board could not be compelled to 
examine a person as an applicant for a certificate as pharmacist 
after you had duly revoked his license. I see no reason, however, 
why you may not, in the exercise of your discretion, grant a new 
examination to such person. The fifth section above quoted pro- 
vides, among other things, that " any person may be re-examined, 
after the expiration of three months, at any regular meeting of 
the board upon the payment of a fee of three dollars." This is 
not, in my opinion, to be construed as making it compulsory 
upon you to grant a re-examination, but to authorize you to do 
so in your discretion. 

Inasmuch as you have no right to grant a license excepting after 
examination, I am of opinion that after a license has been regu- 
larly revoked you have no authority to revoke your decree, and 
grant a new license without a new application and examination. 
The certificate of the Board is a license to the holder thereof to do 
a business which the Legislature has seen fit to regulate under its 
authority to make laws for the good and welfare of the subjects of 
the Commonwealth. The Legislature has vested in the Board the 
authority of executing those laws. No man has the right to do 
the business of a pharmacist until he has satisfied the Board that 
he is qualified. A judgment of the Board revoking his license is 
a judgment that the good and welfare of the community would be 
endangered by his continuing to do business as a pharmacist. If 
such judgment has been entered for good cause, as prescribed by 
the Legislature, and without any mistake of fact, I am of opinion 
that it is final, and that the Board has no authority to revoke it. 



1901.] PUBLIC DOCUMENT — No. 12. 43 

It should be said, however, that it is the inherent right of every 
judicial body to correct mistakes of fact. If, therefore, a revo- 
cation has been decreed through a mistake of such a character, 
and without such cause as the statute recognizes as sufficient, 
your Board may undoubtedly reconsider the revocation and correct 
its error. 

Yours very truly, 

HosEA M. Knowlton, Attorney- General. 



Insurance — Surrender of Policy — Rebate. 

Where an insurant holding an assessment policy has contributed $10 per 
$1,000 of insurance to a " safety fund," in which both the insurant and 
the insuring company have interests, a transaction by which the policy 
holder receives a new " old line" policy as of the date of his assess- 
ment policy in consideration of the surrender of the latter, and an 
allowance of $10 per $1,000 of new insurance upon his first premium 
in consideration of the surrender of his interest in the safety fund, is 
not a " rebate" within the meaning of St. 1894, c. 522, § 68. 

April 27, 1900. 
Frederick L. Cutting, Esq., Insurance Commissioner. 

Dear Sir: — The facts upon which you require my opinion, as 
stated in your letter of February 24, are substantially as follows : — 

The Hartford Life Insurance Company was organized in 1867 
as a regular stock life insurance corporation, with a paid-up capi- 
tal of $250,000. Under a special charter, granted by the State of 
Connecticut in 1880, it began operating as an assessment insurance 
corporation, continuing its stock business, however, as a separate 
and distinct department. In August, 1885, it was admitted to 
transact the business of assessment insurance in Massachusetts. 
Dec. 31, 1898, it discontinued the assessment business and applied 
for admission to do a legal reserve business under St. 1894, c. 522, 
and its certificate of authority was issued in September, 1899. 

While engaged in the business of insurance on the assessment 
plan, it devised and used what it called a " safety fund system." 
To this fund each person insured in that class contributed $10 on 
each $1,000 of insurance denoted by his policy. The provisions 
in relation to this safety fund are somewhat complicated. It is 
suflScient, however, for the purpose of your inquiry, to state that 
it is held in trust for the protection and security of insurers in the 
class contributing to the fund, and that, when the purposes set 
forth in the agreement with the trust company have been fully 
accomplished, the fund is to become the absolute property of the 
company. The agreement further provided that, when the fund 



44 ATTORNEY-GENERAL'S REPORT. [Jan. 

reached the sum of $300,000, thereafter there shall be a pro rata 
division of interest semi-annually among the policy holders of this 
class who had contributed their stipulated portion of the fund five 
years prior to the date of such division ; and that, whenever the 
fund reached the sum of $1,000,000, all payments to such fund 
thereafter should be divided like the interest. It was also provided 
that, as long as there should be a policy of this class outstanding, 
the trust fund, excepting as aforesaid, should remain intact. 

The company desires to wind up its assessment business and to 
have all those who hold policies of assessment insurance exchange 
them for regular insurance policies. To this end, the company 
proposes that, if an insured will surrender his assessment policy, 
it will issue to him an old line policy with the premium based on 
the age of original entry, talce a lien thereon, or a premium note, 
for the amount of the reserve which would have accumulated had 
the policy been written originally as an old line policy, and pay 
him $10 for each $1,000 old line insurance so taken, deducting the 
same from the first premium on this new policy. The question 
stated by your letter is, whether that transaction constitutes a 
rebate within the meaning of that word as used in St. 1894, c. 522, 
§ 68. 

The section in question is as follows : "No life insurance com- 
pany doing business in Massachusetts shall make or permit any 
distinction or discrimination in favor of individuals between 
insurants of the same class and equal expectation of life in the 
amount of payment of premiums or rates charged for policies of 
life or endowment insurance, or in the dividends or other benefits 
payable thereon, or in any other of the terms and conditions of 
the contracts it makes ; nor shall any such company or any agent 
thereof make any contract of insurance or agreement as to such 
contract other than as plainly expressed in the policy issued 
thereon ; nor shall any such company or agent pay or allow, or 
offer to pay or allow as inducement to insurance, any rebate of 
premium payable on the policy or any special favor or advantage 
in the dividends or other benefit to accrue thereon, or any valuable 
consideration or inducement whatever not specified in the policy 
contract of insurance." 

It is contended that, inasmuch as the safety fund is the property 
of the corporation, and that, as is claimed, the policy holder has no 
interest in the fund, the payment of $10 to the policy holder at the 
time of paying his first premium, by deducting it from his first 
premium, amounts to a rebate within the meaning of that word as 
used in the statute. If it were true that the policy holder had no 
interest in the fund, the proposed transaction might amount to a 



1901.] PUBLIC DOCUMENT — No. 12. 45 

rebate ; but it clearly appears, upon an examination of the trust 
agreement, that he has an interest in the safety fund, which he 
loses when he surrenders his assessment policy. As stated above, 
he is entitled to a semi-annual interest payment from the fund, 
varying in amount according to the size of the fund, so long as his 
policy remains outstanding. How long the fund will be so held 
cannot now be determined. These interest payments he loses by 
surrendering his policy ; while, on the other hand, the insurance 
company is clearly the gainer by the surrender of his policy, for 
the reason that all obligations attached to the safety fund are dis- 
charged when all such policies are surrendered, so that the fund 
will be so far the absolute property of the corporation that it may 
be divided among the stockholders or invested for their benefit. 
Even if the policy holder should not take out new insurance, it 
would be an advantageous contract for the company to offer to pay 
him the same sum proposed, as an inducement to him to surrender 
his policy. 

It follows, therefore, that the proposition of the company is not 
made, primarily at least, as an inducement to insure, but to secure 
his release of his interest in the safety fund. He has acquired, 
under his old policy, a valuable interest in that fund, which, by 
his acceptance of the offer of the company, he gives up ; while, on 
the other hand, the company, by the cancellation of his old policy, 
is relieved, so far as his policy is concerned, from the conditions 
upon which the fund is held. One of the considerations, therefore, 
for the payment of the $10 is the surrender of the old policy, and, 
by consequence, the interest of the policy holder in the safety 
fund. The mere fact that, for convenience, the amount is de- 
ducted from his first premium in the new policy, does not change 
the essential character of the transaction. 

It is true that, upon a voluntary surrender of his old policy by 
the insured, the company pays nothing for a release of his interest. 
There is no reason why it should, the surrender being voluntary 
and without consideration. It is also true that the offer is limited 
to such old policy holders as exchange them for new policies. 
Notwithstanding these facts, it remains true that the release by 
the insured of his interest in the safety fund is, in part at least, a 
consideration for the payment of the $10. 

The whole transaction is a barter between the company and one 
of its policy holders, under the terms of which the insured remains 
a policy holder, gives up certain rights which he has, and in the 
place of them acquires new rights ; while, on the other hand, the 
company pays the sum of $10, and acquires certain releases of 
value to it from him. Such a transaction, in which there are con- 



46 ATTORNEY-GENERAL'S REPORT. [Jan. 

siderations of various natures on each side, although one of them 
involves the taking out of a new policy in exchange for an old 
policy, is not, in my judgment, within the terms of the statute 
forbidding the payment of a rebate as an inducement to persons to 
take out insurance. 

It ought to be added, however, as a necessary consequence of 
the foregoing considerations, that, if the deduction of $10 is made 
from the first payment of one who formerly held an assessment 
policy, but whose policy has lapsed so that he no longer has any 
interest in the safety fund, such a deduction would be within the 
terms of the statute prohibiting rebates, unless, under the terms of 
his former policy, he has the right to have it revived. 
Very truly yours, 

HosEA M. Knowlton, Attorney- General. 



School District — Dissolution — Joint Committee. 

After a school district union, formed under St. 1888, c. 431, as amended 
by St. 1893, c. 200, has been in existence for more than three years, it 
may be dissolved by vote of any of the towns comprising it. 

The joint committee composed of the school committees of the several 
towns constituting the union have no authority either to form, to con- 
tinue or to dissolve such union. 

April 28, 1900. 
Frank A. Hill, Esq., Secretary, Board of Education. 

Dear Sir : — Your letter of March 15 requires the opinion of 
the Attorney-General upon the question whether the union of the 
towns of Provincetown and Wellfleet into a district for the employ- 
ment of a superintendent of schools, has been dissolved by the 
vote of the town of Provincetown. 

At the annual town meeting held in the town of Provincetown, 
Feb. 12, 1900, it was voted ''That the union effected with the 
town of Wellfleet for the purpose of the employment of a superin- 
tendent of schools be dissolved." This vote was duly taken upon 
an article relating thereto in the warrant for the meeting. It 
further appears that in April, 1899, the joint committee of 
Provincetown and Wellfleet had voted that the district previously 
formed between the towns be continued for a term of three years 
from date. 

The original statute (St. 1888, c. 431) contained no provision 
with reference to the dissolution of school district unions, but by 
St. 1893, c. 200, § 2, it was provided that " when such a union has 
been effected, it shall not be dissolved . . . for the period of 
three years from the date of the formation of such union, except 



1901.] PUBLIC DOCUMENT — No. 12. 47 

by a vote of the majority of the towns constituting the union." 
The necessary inference from this provision is that after the union 
has been in existence three years it may be dissolved by the vote 
of any of the towns composing it. The vote of the town of 
Provincetown, therefore, was effectual to dissolve the union if it 
had existed for three years prior to that time, unless the prior vote 
of the joint committee passed in 1899 had been effectual to con- 
tinue the union for three years. 

The joint committee, however, have no authority to form or to 
continue the union. The statute distinctly provides that such 
unions may be formed only by vote of the several towns compos- 
ing them (St. 1888, c. 431, § 1). When such a union has been 
formed by the vote of the towns composing the district, the school 
committees of the several towns shall form a joint committee, who 
shall be held to be the agents of the towns composing the union 
(St. 1888, c. 431, § 2) ; but this agency is only for the conduct of 
the business of the district ; it does not give such joint committee 
authority either to form, to dissolve or to continue the union. 
The vote of the joint committee in 1899, therefore, was not 
effectual to continue the union unless ratified by the constituent 
towns. Such ratification did not take place, but, on the contrary, 
at the first opportunity after the vote of the joint committee, the 
town of Provincetown formally voted to dissolve the union. 

The history of the union, as stated in your letter and in the 
documents accompanying the same, does not make it entirely clear 
to my mind when, if ever, it was legally formed, although there is 
no doubt upon the facts that in February, 1900, it had been 
actually in existence for more than three years. If, in forming 
it, the statutes were not complied with, it of course might be dis- 
solved at any time. If the formation was legal, or was made so 
by ratification of the towns, having been in existence three years, 
the town had authority to dissolve it without the consent of Well- 
fleet ; and, on the other hand, the joint committee had no authority 
to extend it. 

. The union, therefore, was dissolved by the vote of the town of 
Provincetown at its annual meeting in February of this year. 
Very truly yours, 

HosEA M. Knowlton, Attorney-General, 



48 ATTORNEY-GENERAL'S REPORT. [Jan. 

Residence — Evidence of Intention — Enlistment. 

A person actually living in a city within the Commonwealth, who has filed 
his primary declaration of intention to become a citizen of the United 
States, describing himself as a resident of such city, and who enlists 
therefrom, \s prima facie a resident of this Commonwealth, and Is enti- 
tled to the benefits of St. 1898, c. 561. 

The length of such residence is not material under the statute, except so 
far as it is confirmatory evidence of the intention of the party. 

May 3, 1900. 
Hon. Edward S. Bradford, Treasurer and Receiver- General. 

Dear Sir : — Your letter of May 3 requires my opinion upon 
the question whether John Kennelly, upon the facts submitted 
with your letter, was a resident of Massachusetts at the time of 
his enlistment, within the meaning of that word as used in St. 1898, 
c. 561, so as to entitle him to the benefits of the provisions of that 
chapter. 

It appears by the facts submitted that he came to this country 
from some foreign port, arriving in New York on the twenty-sec- 
ond day of June, 1898, which, as it happens, was the day on which 
the act in question was signed. He subsequently came to Spring- 
field, where, on the nineteenth day of July of the same year, he 
filed his primary declaration of intention to become a citizen of the 
United States, describing himself as a resident of Springfield. He 
enlisted on the twenty-fifth day of July. 

Prima facie he was a resident of Springfield at the time of his 
enlistment. He was there, and described himself as of that place. 
If he came there only for the purpose of enlistment, and not to 
become a resident of that city, he would not be within the act ; 
but unless you are able to show otherwise, his removal to Spring- 
field, declaration of intention and enlistment in that city are suffi- 
cient, in my opinion, to constitute him a resident and to entitle 
him to the benefits of the act in question. The length of time of 
residence is not material under the statute, excepting so far as it 
is confirmatory evidence of the intention of the party. 
Yours very truly, 

HosEA M. Knowlton, Attorney 'General. 



New England Cotton Tarn Company — Private Corporation — 
Stock Watering — Capital Stock — Commissioner of Corpora- 
tions. 

The enactment of the bill to incorporate the New England Cotton Yarn 
Company, a private corporation, would afi'ord no greater opportunity 
for the practice of " stock watering" than is given to such corpora- 
tions in the general laws of this Commonwealth. 



1901.] PUBLIC DOCUMENT — No. 12. 49 

Corporations formed for the carrying on of private business, except for 
tiie requirement tliat tliey begin such business upon a fully paid capi- 
tal, are left free under the general laws, from any supervision over 
the investment of their capital stock. 

Stock watering is the issuance of capital stock that does not represent 
full value paid in, either in cash or in property. Since the Commis- 
sioner of Corporations has the final decision upon the value of property 
taken in exchange for shares (Pub. Sts., c. 106, § 48), the issuance of 
watered stock depends upon the ability of the commissioner to deter- 
mine accurately the value of such property. 

May 4, 1900. 

Hon. James J. Myers, Speaker of the House of Bepresentatives. 

Dear Sir : — I have the honor to acknowledge the receipt of a 
copy of an order adopted by the honorable House of Represent- 
atives, April 26, 1900, requiring the opinion of the Attorney- 
General upon the following question : '' Would the enactment of 
the ' Bill to incorporate the New England Cotton Yarn Company,' 
now before the House, afford said corporation, under any circum- 
stances, the opportunity, in the issue of its securities, to practise 
what is commonly known as stock watering?" 

Massachusetts has for many years undertaken to prohibit the 
issuance of stock by corporations organized under its laws except- 
ing for equivalent value in cash or property. Pub. Sts., c. 106, 
§§ 37, 48. Before 1894 it had never attempted to regulate the 
investment or disposition of the capital stock so paid in ; but in 
that year certain statutes were enacted, commonly called the anti- 
stock-watering statutes, which undertook, as to certain public 
service corporations, to regulate not only the paying in, but, to a 
certain extent, the expenditure, as well, of the capital stock of 
such corporations. They are: St. 1894, c. 450, relating to gas 
and electric light companies ; c. 452, relating to telegraph, tele- 
phone, aqueduct and water companies ; c. 462, relating to railroad 
and street railway companies ; and c. 472, relating to the increase 
of the capital stock of the foregoing corporations. These statutes 
provide, in substance, that only so much capital stock be issued 
by such corporations as is shown to the satisfaction of the board 
having charge of such corporations to be necessary for the pur- 
poses for which it is authorized, and also that it shall not be 
expended for any other purpose. 

On the other hand, corporations formed for the carrying on of 
private business, in which citizens generally are interested only as 
possible creditors, are, under our general laws, left free from any 
supervision or interference by the Commonwealth in the conduct of 
their business. The State requires only that they begin business 
with a fully paid capital stock. How they shall expend proceeds 
of the stock so paid in is left to the officers of such corporations, 



50 ATTORNEY-GENERAL'S REPORT. [Jan. 

under the supervision of their stockholders, and with the right, 
in certain cases, of investigation by creditors if there has been 
improvidence or fraud. For example : when a cotton mill is organ- 
ized, the general laws undertake to require that the corporation 
shall not begin business until its capital stock is fully paid in ; but 
how it shall expend its money, how much it shall pay for plant, 
for supplies or for labor, are questions left wholl}' to the regulation 
of the corporation and its officers, so far as the State is concerned. 
Another example of this distinction may be found in the bill under 
consideration. Section 5 provides for the redemption, at the 
election of the corporation, of its preferred shares at a fixed value. 
This provision, however, has to do only with the expenditure of 
the capital stock and not with the original paying in of such stock. 

It is entirely possible, therefore, under our laws, for a corpora- 
tion to begin business with a capital fully paid in, and yet after- 
wards so to mismanage its affairs and misspend its capital that the 
property which its capital stock is supposed to represent disappears 
in whole or in part. But this is not stock watering, in the strict 
sense of that term, which means only the issuing of stock which 
does not represent value received, at the time it is issued. 

When, if ever, the State enters upon the difficult task of supervis- 
ing the conduct of the business of private corporations, as it already 
has of public-service corporations, and of the investment of their 
capital stock, it will undoubtedly be by general laws applicable to 
all such corporations. In view of this well-settled policy of the 
Commonwealth, I assume that the question submitted by your hon- 
orable body relates only to the paying in of the original capital 
stock and of any increase thereof, and has nothing to do with the 
possible results of the carrying on of its business, — results com- 
mon to this and to all other private corporations. So interpreted, 
the question submitted is, practically, whether the bill permits the 
corporation to issue capital stock that does not represent full value 
paid in, either in cash or in property. 

The proposed corporation is expressly made subject by the bill 
to all the duties, restrictions and liabilities contained in all general 
laws now or hereafter in force relating to such corporations, except 
as therein provided. The exceptions referred to are : first, that 
by the second section the original capital stock is fixed at one 
million dollars; whereas, under the general statutes, the capital 
stock of a manufacturing corporation is fixed by the incorporators, 
and may be any sum not less than five thousand dollars ; and, 
second, that the capital stock may be divided into preferred and 
common shares, as the corporation may determine. The general 
law contains no reference to preferred shares. The bill also 



1901.] PUBLIC DOCUMENT — No. 12. 51 

authorizes the corporation to purchase the property of the New 
England Cotton Yarn Company, a corporation organized under the 
laws of the State of New Jersey. So far as this purchase is to be 
made by the issuing of shares of stock, it is governed by the gen- 
eral provisions of law relating to the paying in of capital stock. 
None of these special provisions affect the question submitted ; 
and it is, therefore, to be determined by a consideration of the 
provisions of the general laws relating to such corporations, and 
how far they are effectual to prevent the issuance of stock for less 
than the par value thereof. 

Pub. Sts., c. 106, §46, provides, in substance, that no manu- 
facturing corporation shall commence the transaction of business 
until the whole amount of its capital stock has been paid in, and a 
certificate to that effect and of the manner in which the same has 
been paid in, and at the time of making the certificate been 
invested or voted by the corporation to be invested, signed and 
sworn to, has been filed in the office of the Secretary of the Com- 
monwealth. 

Section 48 provides that "conveyance to the corporation of 
property, real or personal, at a fair valuation, shall be deemed a 
sufficient paying in of its capital stock to the extent of such value, 
if a statement, made, signed and sworn to by its president, treas- 
urer and a majority of its directors, giving a description of such 
property and the value at which it has been taken in payment, in 
such detail as the commissioner of corporations shall require or 
approve, and endorsed with his certificate that he is satisfied that 
said valuation is fair and reasonable, is filed with the secretary of 
the Commonwealth." 

These provisions apply to the original capital stock of the pro- 
posed corporation, and, by section 4 of the bill, they govern any 
increase of capital stock which may from time to time be made by 
the corporation. It follows that both the original capital stock 
and any increase thereof must be made in cash or in property the 
equivalent of cash, at a fair valuation ; the question of such fair- 
ness being submitted to the determination of the commissioner of 
corporations, whose decision in the matter is final and binding 
upon all parties. 

Whether stock may be issued which does not represent full value 
depends in this case, as in the case of all manufacturing corpora- 
tions organized under the general law, upon the ability of the 
commissioner to determine accurately the value of the property 
taken in exchange for shares issued. If the valuation fixed by 
him is the true value of the property taken, the stock issued there- 
for will be fully paid for. If he fixes too high a value upon the 



52 ATTORNEY-GENERAL'S REPORT. [Jan. 

property conveyed, the stock issued in exchange therefor to that 
extent will be watered stock, in the sense that it does not represent 
actual equivalent property. How far the provisions I have re- 
ferred to have been found to be effectual to prevent manufacturing 
corporations from issuing watered stock, and how far they will 
operate to the same end in the case of the corporation in question, 
are questions of fact which it is not my province to determine. 
Yours very truly, 

Hose A M. Knowlton, Attorney- General. 



Metropolitan Water Board — Citizen Labor — Preference — Nine 
Hour Law — Weekly Payments. 

The word " preference," as used in St. 1895, c. 488, § 31, requires the em- 
ployment of citizens only when they can be employed upon as advan- 
tageous terms as aliens. 

Where laborers are regularly employed by contractors upon public works 
for more than nine hours per day, payment being per hour for the time 
during which they actually work, it is not a violation of St. 1899, 
c. 508, § 7. 

Even where the laborers are told that they can only be employed upon 
their agreement to work more than nine hours per day, for so much 
per hour, and they accept the employment upon such terms, it is not 
a violation of that statute. 

The statute requiring the weekly payment of employees (St. 1894, c. 508, 
§§ 51-54, amended by St. 1899, c. 247) does not include the employment 
of labor by the Commonwealth or its officers. 

May 14, 1900. 
Hon. Thomas Post, Chairman, Joint Committee, etc. 

Dear Sir: — While, under existing statutes, your committee 
has no right to the opinion of this office, the questions you 
submit relate to a matter specially committed to you by the 
Legislature, and appear to me to be fairly entitled to my consider- 
ation. 

1. '' Section 31 of chapter 488 of the Metropolitan water act 
provides that in the construction of the Metropolitan water works 
' preference in employment shall be given to citizens of this Com- 
monwealth.' If it appears that citizen labor of this Commonwealth 
can be hired in sufficient numbers at not less than $1.50 per day 
per laborer, and equally efficient alien labor at $1.35 per day, does 
the clause referred to above require that, other things being equal, 
employment shall be given by the Metropolitan Water Board in 
doing its work to citizen laborers?*' 

To this I answer No, for reasons stated in my reply to the next 
question. 



1901.] PUBLIC DOCUMENT — No. 12. 53 

2. *' Please state what is meant by the clause 'preference in 
employment shall be given to citizens of this Commonwealth.' '* 

In my judgment, the word " preference" as used in the statute 
referred to requires the employment of citizens when such labor 
can be employed upon as advantageous terms as alien labor. If 
aliens are willing to do as good work more cheaply, the duty of 
preference does not require the employment of citizens at a higher 
rate of wages. 

3. "Is the employment of laborers b}^ contractors on public 
works more than nine hours per day, regularly, a violation of the 
law, the laborers being paid so much per hour for the time during 
which they actually work?" 

To this question I answer No. St. 1894, c. 508, § 7, which 
provides that '•' Nine hours shall constitute a day's work for all 
laborers," etc., refers only to employment by the day. It does 
not and is not intended to prohibit the employment of labor by 
the hour, if the laborer is willing to be so eijiployed. 

4. '' Is such employment of laborers unlawful if the continu- 
ance of their employment is dependent upon their willingness to 
work more than nine hours per day?" 

If a laborer is told that he can only be employed upon his 
agreement to, work more than nine hours per day at a given rate 
per hour, and accepts the employment upon such terms, such 
employment is an evasion of law, but not, in my judgment, a 
violation of it. Being a penal law, it is to be construed strictly. 
A person so employed, however powerful the inducement, is, 
nevertheless, in contemplation of law, working voluntarily, and 
the case, so far as the statute is concerned, is the same as though 
no such threat were held out to him. Employment by the hour is 
not within the statute. 

5. "Is the payment by the Metropolitan Water Board of the 
persons directly employed by the Board monthly or in any other 
way than weekly, unlawful?" 

St. 1894, c. 508, §§ 51-54, as amended by St. 1899, c 247, do 
not include the employment of labor by the Commonwealth or its 
officers. 

Very truly yours, 

HosEA M. Knowlton, Attorney-General, 



54 ATTORNEY-GENEEAL'S REPORT. [Jan. 



State Highivay — Filing of Plans — Lay-out — Discontinuance — 

Errors. 

The Massachusetts Highway Commission, after a State highway has been 
laid out and the required plans and certificates have been filed in the 
oflSces of the town and county clerks, have no authority to discontinue 
such highway or any part of it. 

In general, however, mere clerical errors may at any time be corrected. 

Mat 21, 1900. 
A. B. Fletcher, Esq., Secretary, Massachusetts Highway Commission. 

Dear Sir: — Your letter of Nov. 17, 1899, requires the opinion 
of the Attorney-General as to the powers of the Massachusetts 
Highway Commission with reference to correcting errors or mak- 
ing changes in State highway lay-outs after the plans and other 
papers have been filed in the offices of the town and of the county 
clerks. 

I am informed that the specific case which gave rise to this ques- 
tion is as follows : Your commission filed a plan defining the width 
of land taken for a State highway. Since the plan was filed, the 
commission have determined that the width defined is greater than 
is necessary for the purpose of the highway ; and, as the abutters 
are willing to have the surplus width reconveyed to them, the com- 
mission are desirous, if permissible, to abandon such land as they 
find to be unnecessary for the highway. 

St. 1897, c. 355, § 1, amending St. 1894, c. 497, § 2, provides 
that " Said highway commission shall consider such petition . . . 
and if they deem that the highway should be laid out or taken 
charge of by the Commonwealth, shall file a certified copy of a 
plan thereof in the oflSce of the county commissions of the county 
in which the petitioners reside, with the petition therefor, and a cer- 
tificate that they have laid out and taken charge of said highway 
in accordance with said plan, and shall file a copy of said plan and 
location of the portion lying in each city or town in the office of 
the clerk of said city or town, and said highway shall after the 
filing of said plans be laid out as a highway by said commissioners 
at the expense of the Commonwealth." 

The plans and certificate so filed in accordance with the provi- 
sions of this section constitute the only record of the taking of the 
land b}^ the Highway Commission. They are not working plans, 
for they do not purport to give detailed information as to grade, 
etc. ; they only define the bounds of the land taken. No other 
act of taking is provided by the statutes ; and I am of opinion, 
therefore, that the filing of the plans and certificate must be 
deemed to be the act of taking by eminent domain of the lands so 



1901.] PUBLIC DOCUMENT — No. 12. 55 

defined, and that the taking is complete upon the filing of such 
plans and certificate. 

The section quoted provides in the first instance for a determina- 
tion by the commissioners that the highway should be " laid out ; " 
and, as soon as such determination is reached, for carrying it into 
effect by filing plans, and certificates therewith. The term " lay 
out " has acquired a technical meaning when used in connection 
with the highways in the legislation of this Commonwealth. '' Lay 
out is the appropriate expression for locating and establishing a 
new highway." Foster v. Commissioners^ 133 Mass. 321. In the 
same case it is said by the court that "It is unnecessary to say 
that after a way has been laid out, no additional order or adjudi- 
cation is necessary to construct it." By the use of the expression 
" lay out as a highway," the Legislature means the passage of the 
order so to do. Hitchcock v. Sjningfield^ 121 Mass. 382 (385). 
The filing of the plans, therefore, may be taken to be the techni- 
cal " laying out" of the highway by the commission. The title to 
the land is then complete and the land taken has become a State 
highway. The same section, it is true, later provides that after 
the filing of the plans the State highway is "to be laid out as a 
highway ; " but, inasmuch as no technical act of laying out is pro- 
vided thereafter wards, I am of opinion that the words " lay out as 
a highway " are to be interpreted as meaning the actual construc- 
tion of the way. Such a use of the term " lay out" is not wholly 
unknown to the statutes or to the decisions of the courts. See St. 
1871, c. 382, § 1, and Hitchcock v. Springfield, 121 Mass. 382. 

The statutes contain no provision for discontinuance of a State 
highway by the Highway Commission. In this respect the statutes 
differ from the Public Statutes relating to the laying out of ways 
by county commissioners and by town officers. These statutes 
(Pub. Sts., c. 49) contain full provisions for discontinuing county 
or other ways. It must, therefore, be taken to be the intent of the 
Legislature that your Board should have no authority to discon- 
tinue or to give up a highway under the control of the Common- 
wealth. Having no power to discontinue a State highway, you 
have no power to discontinue any portion of it. 

The question submitted inquires also as to the power of the 
commissioners to correct errors, which I understand to mean cler- 
ical or topographical errors. But upon the facts of the specific 
case submitted, it is not necessary to consider this branch of the 
question. In general, mere clerical errors may at any time be cor- 
rected, and I have little doubt of your power to do so, provided 
the substance of the original lay-out is adhered to. 
Very truly yours, 

HosEA M. Knowlton, Attorney-General. 



56 ATTORNEY-GENERAL'S REPORT. [Jan. 

State Highway — Street Railway — Alterations — Apportionment 

of Cost. 

The Massachusetts Highway Commission cannot, under St. 1898, c. 578, 
§ 16, make any apportionment of the cost of changes in location or 
alterations of street railway tracks ordered by the commission before 
the passage of that statute. 

May 21, 1900. 

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

Dear Sir: — Your letter of March 16 states that the Highway 
Commission, iu laying out a State highway in the town of Merri- 
mac, in September, 1897, ordered the tracks of a street railway 
company to be removed from the centre of the location and relaid 
at a lower grade, and that this relocation involved the building of 
a retaining wall; that, the railway company having refused to 
build the wall, the commission, under the provisions of St. 1896, 
0. 541, made a contract for the building of the wall, and trans- 
mitted to the Auditor the bill for the amount, to be collected from 
the street railway company. 

The commission now desire to know whether, acting under the pro- 
visions of St. 1898, c. 578, § 16, the commission have any authority 
to make any allowance to the street railway company on this bill. 

St. 1896, c. 541, provides that "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, or to place different material between its tracks, or 
to make any other change in the location and construction of said 
railway, said commission may, in the manner provided in section 
twenty-two of chapter one hundred and thirteen of the Public 
Statutes for making such changes by boards of aldermen and 
selectmen, order the company owning or operating said railway to 
make such changes." The section further provides that the cost 
of making such alterations, whether by the railway company or by 
the commission, shall be paid by the commission and assessed by 
the Auditor upon the railway company. The commission obviously 
followed the provisions of this statute. The matter of payment 
of the bill is now in the hands of the Auditor and the Tax Com- 
missioner, and the commission have no further responsibility, duty 
or rights in the matter. 

St. 1898, c. 578, it is true, authorizes the commission, under 
certain circumstances, to apportion the cost of such alterations as 
may seem reasonable ; but this statute is not retroactive, and does 
not affect rights and liabilities fixed before its enactment. 
Very truly yours, 

Hosea M. Knowlton, Attorney- General. 



1901.] PUBLIC DOCUMENT — No. 12. 57 

Pauper — Settlement — Repeal of Statute — Effect of Repeal on 
Liability of City or Town. 

A settlement gained under Gen. Sts., c. 69, § 1, cl. 5, and completed before 
the enactment of the repealing statute, which expressly saves " all 
acts done or rights accruing " before the repeal takes effect, is not lost 
or affected by such repeal. 

If by reason of a settlement a city or town has become liable for the sup- 
port of a pauper, such liability is not taken away nor is the right of 
another city or town, or of the Commonwealth, to enforce such 
liability, destroyed because of the repeal of the statute under which 
the settlement was gained, if such repeal is not retroactive. 

Mat 21, 1900. 
J. F. Lewis, M.D., Deputy Superintendent, State Board of Charity. 

Dear Sir : — The material facts in the New Bedford case, as to 
which your letter of April 24 requires the opinion of the Attorney- 
General, are as follows : — 

The pauper in question, at present in the Epileptic Hospital, 
was born in New Bedford March 26, 1873. He has never acquired 
a settlement in his own right. His father was born in Whately in 
1833, where he resided until 1859, then in different places, without 
acquiring a settlement in any of them, until 1865, when he re- 
moved to New Bedford, where he remained until some time after 
May 1, 1874. He only acquired a settlement, if at all, by his 
residence in New Bedford, where, from and including 1867, up to 
and including 1873, he was assessed for and paid taxes to an 
amount sufficient to bring him within the provisions of Gen. Sts., 
c. 69, §1, cl. 5, which provided that "Any person of the age of 
twenty-one years, being a citizen of this or any other of the United 
States and having an estate, the principal of which shall be set at 
two hundred dollars, or the income at twelve dollars in the valua- 
tion of estates made by assessors, and being assessed for the 
same, to state, county, city or town taxes, for five years succes- 
sively in the place where he dwells and has his home, shall thereby 
gain a settlement therein." 

The grandfather of the pauper was settled in Whately, dying in 
1863, so that no settlement could be derived from him. The 
mother of the pauper had no settlement excepting that of her 
husband. 

Upon the foregoing facts, the father of the pauper clearly 
acquired a settlement in New Bedford under the provisions of 
Gen. Sts., c. 69, §1, cl. 5, above quoted; and the pauper, not 
having acquired any settlement of his own, took by derivation the 
settlement of his father under the provisions of Pub. Sts., c. 83, 
§1, cl. 2. I understand, however, that it is claimed on behalf of 



58 ATTORNEY-GENERAL'S REPORT. [Jan. 

New Bedford that the provisions in the General Statutes, above 
referred to, under which he acquired his settlement, having been 
repealed, the settlement became void, and that, at least, whatever 
rights might have accrued to the Commonwealth against New 
Bedford under it cannot now be enforced. 

St. 1878, c. 190, which repealed the section in question, pro- 
vided in the repealing clause (section 5) for saving " all acts 
done, or rights accruing, accrued or established, or proceedings, 
doings or acts ratified or confirmed, or suits or proceedings had or 
commenced, before the repeal takes effect." This statute of 1878 
was re-enacted in the Public Statutes as chapter 83, and it is 
expressly provided, in Pub. Sts., c. 223, § 4, that ''the repeal of 
prior acts shall not affect any act done or any right accrued or 
established, etc., before the repeal takes effect." 

The settlement of the father, having been completed before the 
enactment of the statute of 1878, is, therefore, not affected or lost 
by the repeal of the section under which it was acquired. 

I am unable to understand the force of the further contention 
that, although the settlement may still exist as to the pauper, the 
Commonwealth has no means of enforcing rights under it as 
against municipalities. If a city or town has become liable for 
the support of a pauper by reason of a settlement in such city or 
town, its liability for such support is not taken away, nor is the 
right of another town or of the Commonwealth to enforce such 
liability destroyed, because of the repeal of the statute, the repeal 
not being retroactive. 

Very truly yours. 

Hose A M. Knovtlton, Attorney- General. 



State Highway — Street Railway — Alteration of Location — Re- 
quirement of Paving. 

The Massachusetts Highway Commission has no authority to require of a 
street railway, upon a relocation of its tracks ordered by the commis- 
sion, that "the space between the rails, and eighteen inches on the 
outside of each rail, shall be paved with block paving." 

May 25, 1900. 
A. B. Fletcher, Secretary, Massachusetts Highway Commission. 

Dear Sir: — Your letter of Dec. 30, 1899, encloses a copy of 
a decree issued by the commission to the Wakefield & Stoneham 
Street Railway Company, dated Nov. 10, 1899, referring to the 
location and care of its tracks on the State highway in Reading, 
which decree was amended by vote of the commission passed Dec. 



1901.] PUBLIC DOCUMENT — No. 12. 59 

1, 1899. The question submitted by your letter is whether that 
part of the decree which, as amended, provides that " Where said 
tracks cross the State highway the space between the rails and 
eighteen inches outside of each rail, for the width of twenty-one 
feet over the State highway macadam and shoulders, shall be paved 
with block paving," is within the jurisdiction of the commission. 
I am informed that a location had been granted to the railway in 
question before the way was taken in charge by the Highway 
Commission as a State highwa}-, and that its tracks had been laid 
thereon under a franchise granted by the selectmen of Reading. 
The decree in question is for a relocation of said tracks, made 
upon petition of the selectmen of the town of Reading, after due 
notice and public hearing. 

The commission undoubtedly^ has general jurisdiction to order a 
relocation of tracks which were upon a State highway before the 
same was laid out as a State highway. By St. 1898, c. 578, § 24, 
the State Highway Commission is given the same authority with 
regard to the location and maintenance of street railways located 
before the street is taken charge of by the commission as is con- 
ferred 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 relo- 
cation aod maintenance of street railways in public ways not under 
the jurisdiction or charge of said commission." The Board, there- 
fore has the power vested by the statute of 1898 in selectmen of 
towns as to street railways, but no more ; and the reply to the ques- 
tion contained in your letter is determined by a consideration of 
the powers vested in municipal boards relating to such matters. 

St. 1898, c. 578, § 16, contains the authority for the action of 
your Board, it being the section which authorizes municipal boards 
to alter the location of tracks. It authorizes the alteration of the 
location of tracks "in the manner and subject to the provisions 
contained in section fifteen." Section 15, which relates to the 
extension of street railway locations, authorizes municipal boards 
to grant such extensions, to prescribe the manner in which the 
tracks shall be laid, and the kind of rails, poles, wires and other 
appliances which shall be used. It provides, further, that " the 
board shall not impose as terms or conditions of such grant any 
obligations other than or in addition to those applying to street 
railways under the general law in force at the date of the passage 
of this act, or such as may have been imposed in the original grant 
of location to such company in such city or town subsequent to 
the passage hereof." As this location was granted prior to the 



60 ATTORNEY-GENERAL'S REPORT. [Jan. 

passage of the statute of 1898, no obligation may under this sec- 
tion be imposed upon the street railway company other than or in 
addition to those applying to all street railways as the law stood 
before the passage of the act. 

It becomes necessary, therefore, to decide whether so much of 
the order of your Board as requires that the space between the 
rails, and eighteen inches on the outside of each rail, shall be 
paved with block paving, is an obligation authorized by the 
General Statutes relating to street railways prior to 1898. I 
know of no such authority. There was nothing in the general 
street railway law (Pub. Sts., c. 113) which imposed upon street 
railway companies any duty of paving either between the rails or 
outside thereof. Section 32 required them to keep in repair the 
paving and other surface material of the portions of streets, roads 
and bridges occupied by their tracks ; and, if such tracks occupied 
unpaved streets, to keep in repair eighteen inches on each side of 
the portion so occupied by the tracks. This, however, was very 
far from imposing upon street railway companies the duty of pav- 
ing between their rails or outside of them. 

It has without doubt been commonly understood by municipal 
boards that in granting franchises under the street railway law 
they had the right to impose obligations upon the company receiv- 
ing the franchise. Many franchises have been granted in which 
the company was required to pave not only the portion of the track 
between the rails, but a part or the whole of the way outside the 
rails. Other franchises have imposed pecuniary obligations of 
various kinds. All these, however, were, in my judgment, with- 
out authority of law. In granting locations and extensions of 
locations they were authorized only to impose such restrictions as 
they deem the interest of the public might require. Pub. Sts., 
c. 113, §§ 7, 21. Regardless of what the practice has been under 
this section, I am of opinion that an obligation involving the ex- 
penditure of money or a tax in any form upon the street railway 
company is not a restriction within the meaning of that word as 
used in the sections referred to. 

In granting street railway locations under the old law, munici- 
pal boards acted solely as agents of the public. No city or town 
was ever given the authority to grant street railway franchises in 
its streets. Such streets are not the property of the cities and 
towns in which they are situated, — they belong to the public. 
They are free to all citizens, and the absolute power of authority 
over them belongs to the Commonwealth, — the only corporation 
authorized to represent the public. At first street railway loca- 
tions were made the subject of express grant by the Legislature. 



1901.] PUBLIC DOCUMENT — No. 12. 61 

Later, as they became more frequent, it was deemed expedient to 
provide for the establishment of a tribunal which would represent 
the Commonwealth, having authority to grant or to refuse loca- 
tions, as the interests of the public might require. 

The delegation of this authority to boards of aldermen in cities 
and to selectmen in towns did not confer any rights in respect to 
such grants upon cities and towns themselves. The officers so 
delegated act not as agents of the cities and towns, but as repre- 
sentatives of the Commonwealth, guarding the interests of the 
public. They had no right to bargain and sell street railway 
franchises, nor to make terms with street railway companies which 
should accrue to the financial benefit of the cities and towns in 
which the locations were given. They could not make a binding 
contract, either for a time limit of the franchise or for the payment 
of any revenue directly or indirectly to the Commonwealth or to a 
city or town. 

A comparison of the old with the new railroad law may serve to 
illustrate this distinction. Under the old law (Pub. Sts., c. 113, 
§ 7), the municipal boards were authorized to grant or refuse 
locations " under such restrictions as they deem the interests of 
the public may require." Similar language governs their action 
in respect to extensions of the original location. The present law 
(St. 1898, c. 578, § 13), on the other hand, expressly authorizes 
the municipal boards to " impose such other terms, conditions and 
obligations in addition to those applying to all street railways 
under the general provisions of law as the public interest may in 
their judgment require." The distinction between the two is 
material. The word '' restrictions," as used in the former law, 
was obviously intended to signify such limitations upon what 
otherwise would be an unrestricted grant as they might deem to be 
for the interest of the public. For example, provisions as to the 
kind of rails to be used, the time of completion of the work, 
the rates of fares to be charged, the number of cars to be run, 
and the portions of the streets in which tracks should be laid, 
would be "restrictions" for the benefit of the public, and which 
municipal boards under the old law would be authorized to impose. 

The existing law, on the other hand, was undoubtedly framed 
to give the right to municipal boards to make contracts for the 
location of franchises which should enure to the benefit of the 
cities and towns in which such locations were granted. It was 
obviously intended to legalize what had been the practice of 
municipal boards under the former law, and to allow boards, in 
granting franchises, to put such burdens upon the railway com- 
panies for the benefit of the municipalities as they deem wise. 



62 ATTORNEY-GENERAL'S REPORT. [Jan. 

It follows, therefore, that, under the law prior to the statute of 
1898, municipal boards had no authority to impose upon street 
railway companies the burden of paving any portion of the streets 
in which locations were granted to them, and that in requiring 
such an obligation your Board has exceeded its authority. By 
section 11 of the later law, whenever the tracks of a street railway 
company are altered and the surface material is thereby disturbed, 
the company must at its own expense replace the surface material 
with the same form of construction as that disturbed. No other 
duty is incumbent upon it, and no other obligation can be imposed 
relating to the surface of the way. 
Yours very truly, 

HosEA M. Knowlton, Attorney- General. 



Civil Service — Veterans Preference Act. 

The provisions of the civil service legislation relating to soldiers and sail- 
ors are limited to such soldiers and sailors as served during the civil 
war in the army or navy of the United States, and were honorably 
discharged therefrom. 

May 28, 1900. 

Charles T. Russell, Esq., Chairman, Civil Service Commission. 

Dear Sir: — St. 1896, c. 517, is a general act relating to the 
preference of veterans in the civil service. It repeals all previous 
legislation on the subject, excepting so much of the original civil 
service act (St. 1884, c. 320) as relates to such exemptions. In 
the original statute (St. 1884, c 320, § 14, cl. 6) the language 
is : " Applicants who served in the army or navy of the United 
States in time of war, and have been honorably discharged there- 
from." In the statutes of 1896 the word "veteran," which is 
used throughout the statute, is defined in the last section of the 
statute to mean " a person who served in the arm}' or navy of the 
United States in time of the war of the rebellion, and was honor- 
ably discharged therefrom." 

Your letter of May 18 submits the question whether the expres- 
sion above quoted, as used in the original statute, is to be taken to 
have the same meaning as the word " veteran" used in the statute 
of 1896 ; or whether the term is to be construed, as it may be 
literally, to include those who served in the recent war with 
Spain, and have been honorably discharged from such service. 
Your letter inquires further as to whether the existing difficulties 
in the Philippine Islands amount to war within the definition of 
that term, as used in the statute first above quoted. In view of 
the conclusions at which I have arrived upon the main proposition 
submitted, it is not necessary to consider the latter question. 



1901.] PUBLIC DOCUMENT — No. 12. 63 

The expression originally used in St. 1884, above quoted, to wit, 
" Applicants who served in the army or navy of the United States 
in time of war and have been honorably discharged therefrom," 
was used again in St. 1887, c. 437. In St. 1889, c. 473, the lan- 
guage was: " Persons . . . who have served in the army of the 
United States in time of war and been honorably discharged 
therefrom." It St. 1894, c. 519, the language is: ''No person 
who has served in the United States army or navy in time of war, 
and been honorably discharged therefrom," etc. This act is en- 
titled " An act relative to veterans employed in the civil service in 
cities." This is the first use of the word " veterans " in civil ser- 
vice legislation. 

The next statute relating to the subject was St. 1895, c. 501. 
This chapter was declared unconstitutional by the Supreme Judicial 
Court in Brown v. Russell (166 Mass., 14), but may properly be 
considered with the other acts upon the subject in ascertaining the 
intent of the Legislature. In this act the word "veteran "was 
defined in the same terms as in the statute of 1896, above quoted. 
By St. 1896, c 517, above referred to, this statute was amended 
to conform to the opinion of the court in Brown v. Russell. 

All these statutes are to be regarded as one body of legislation, 
relating to the same subject, enacted for the same purpose and for 
the benefit of the same class. 

The language originally used might be so construed as to include 
not only those who had served in the army or navy in time of war 
before the passage of the act, but any one who after its passage 
had so served, and should thus be brought within the designation 
of the act. In view, however, of all the attendant circumstances, 
this cannot be said to have been the intent of the Legislature. 
There can be no doubt that the Legislature had only in mind the 
veterans of the civil war. It is not conceivable that they were 
legislating for the future. But, even if the earlier legislation left 
this in doubt, all ambiguity is removed by the later statutes re- 
ferring to the same subject matter, enlarging the benefits of the 
earlier statutes, and being in effect a continuance of previous leg- 
islation. These expressly defined the word " veteran" in such a 
way as to make it clear that all the legislation is, and is intended 
to be, only for the benefit of the veterans of the civil war. For 
example, St. 1884, c. 320, § 14, cl. 6, speaks of " persons who 
served in the army or navy," etc., and the statute of 1896 of 
"veterans." If the first statute referred to one class of persons 
and the last statute to another, the result would be an absurdity 
which I cannot believe the Legislature could have intended. 

I am of opinion, therefore, that no part of the civil service leg- 
islation relating to soldiers and sailors is to be construed to mean 



64 ATTORNEY-GENERAL'S REPORT. [Jan. 

those who since its passage have served in the army or navy in 
time of war, but that its provisions are limited to those who served 
in the army or navy during the civil war, and were honorably dis- 
charged therefrom. 

This conclusion receives much confirmation from the fact that the 
General Court of 1899 enacted a statute extending the exemptions 
in favor of veterans in the civil service statutes to those who 
served in the Spanish war. This act was vetoed by the Governor, 
and his veto was sustained by the Legislature. Another bill to 
the same end has recently been rejected by the Legislature now in 
session. While these proceedings do not authoritatively settle the 
true construction of the earlier statutes, they are of importance, as 
strengthening the view that all the provisions of the civil service 
acts relating to the subjects had to do only with the veterans of 
the civil war. 

Very respectfully yours, 

HosEA M. Knowlton, Attorney -Geyieral. 



Parole Law — Co7ivict — Successive Sentences. 

A convict who has received successive sentences, imposed either prior to 
the expiration of, or previous to his commitment upon, his first sen- 
tence, is not entitled to the provisions of St. 1894, c. 440. 

May 29, 1900. 
J. Warren Bailey, Esq., Secretary, Commissioners of Prisons. 

Dear Sir: — Your letter of May 10 submits two questions 
touching the construction of St. 1894, c. 440, to wit : — 

^^ First. — Is a prisoner who has received two sentences, each 
of which was imposed prior to the expiration of his first sentence, 
entitled to the provisions of this act? 

" Second. — Is a prisoner who has received two sentences, each 
of which was imposed previous to his commitment upon his first 
sentence, entitled to the provisions of this act? " 

The statute in question has been amended, and the law as 
amended appears in St. 1897, c. 206, as follows : " When it shall 
appear to the commissioners of prisons that any prisoner held in 
the state prison upon his first sentence thereto has reformed, they 
may issue to him a permit to be at liberty during the remainder of 
his term of sentence, upon such terms and conditions as they deem 
best, and they may revoke said permit at any time previous to its 
expiration." 

In a letter submitted to the Prison Commissioners, dated April 
4, 1896 (1 Op. Atty.-Gen., 324), I stated it as my opinion that 



1901.] PUBLIC DOCUMENT — No. 12. 65 

the "statute is inapplicable to the first sentence, taken by itself. 
It cannot be presumed that the Legislature intended that a pris- 
oner should be at large, engaged in the business of reformation, 
for a*period of years, at the expiration of which he should return 
to enter upon a second sentence." 

The statute is in terms inapplicable to the second sentence, for 
at the time he is serving his second sentence it cannot be said that 
he is held in state prison upon his first sentence. 

I beg to repeat the suggestions contained in my former opinion, 
to wit, that '^ the matter of successive sentences seems not to have 
been considered in this law, and that there seems to be need of 
further legislation upon the subject." 
Very truly yours, 

HosEA M. Knowlton, Attorney -General. 



Trust Company — Loan to Single Individual. 

Under St. 1888, c. 413, § 17, a trust company may not loan to one individ- 
ual, whether a person, firm or corporation, more than twenty per cent, 
of the capital stock of the company, even though a portion or the 
whole of the indebtedness is secured by pledge of marketable collateral. 

May 29, 1900. 
Starkes Whiton, Esq., Chairman, 

Board of Savings Banks Commissioners. 

Dear Sir : — St. 1888, c. 413, § 17, is as follows : " The total 
liabilities to such corporation of any person, firm or corporation, 
other than cities or towns, for money borrowed, including in the 
liabilities of a company or firm the liabilities of its several mem- 
bers, shall at no time exceed one-fifth part of such amount of 
the capital stock of this corporation as is actually paid up. But 
the discount of bills of exchange drawn in good faith against 
actually existing values, and the discount of commercial or busi- 
ness paper actually owned by the person negotiating the same, 
shall not be considered as money borrowed." 

I am of the opinion that, in view of the prohibition of the sec- 
tion quoted, a trust company may not loan to one individual more 
than twenty per cent, of the capital stock of the company. Even 
if a portion or the whole of the indebtedness is secured by 
pledge of marketable collateral, it is still a liability of the person 
signing the note, within the meaning of the section. 

A loan secured by a pledge of marketable collateral is not within 
the exceptions of the section. It is not a discount of a bill of 
exchange drawn against actual existing values, or a discount of 



QQ ATTORNEY-GENERAL'S REPORT. [Jan. 

commercial paper owned by the person negotiating the same. 
Both these exceptions are well understood in commercial affairs, 
and neither of them includes ordinary loans upon collateral security. 
Yours very truly, 

HosEA M. Knowlton, Attorney- General. 



State Board of Agriculture— Tree Wardens — Designation of 
Public Shade Trees. 

St. 1899, c. 330, a codification of the laws relative to the preservation of 
shade trees, which makes it obligatory upon towns to elect a tree 
warden, supersedes the authority over such trees conferred by earlier 
statutes upon selectmen or other town officers. 

Since chapter 330 defines public shade trees as " all shade trees within the 
limits of any public way," it has the efi'ect to relieve the Board of 
Agriculture from the obligation, imposed by St. 1890, c. 196, to supply 
M-spikes to towns for the purpose of designating such shade trees as 
are to be considered public shade trees. 

June 9, 1900. 

James W. Stockavell, Esq., Secretary, State Board of Agriculture. 

Dear Sir : — St. 1899, c. 330, is entitled "An act to codify and 
amend the laws relative to the preservation of trees." The act 
itself does not follow the older and better custom of specifically 
repealing the statutes which are superseded by its provisions, nor 
even the more recent method of repealing all acts inconsistent 
therewith. But the title of an act may assist in its interpretation ; 
and I have no doubt that the intention of the Legislature is suflS- 
ciently expressed both in the body of the act and in the title, to 
enact a new and general law relating to shade trees in towns and 
thereby to supersede all previous statutes, unless they relate to 
some matter clearly not covered by the codifying statute. 

The statute in question makes it obligatory upon towns to elect 
a tree warden, and authorizes him and his deputies to have the 
entire charge of public shade trees within the limits of the town. 
It must be taken, therefore, to supersede the authority conferred 
by earlier statutes upon selectmen or other town officers. It can- 
not be supposed that the law intended conflicting jurisdiction. 

Referring specifically to the statutes mentioned in your letter : 
St. 1893, c. 78, which is an act relating to the extermination of 
insect pests, is re-enacted in section 4 of the statute of 1899. St. 
1893, c. 403, relating to and prohibiting the affixing of posters, 
labels, etc., upon public shade trees, is superseded by sections 
5, 6 and 7 of the later statute. St. 1893, c. 423, which is a 
general act relative to the powers and duties of town officers, pro- 



1901.] PUBLIC DOCUMENT — No. 12. 67 

vides, in the section relating to the duties of the superintendent of 
streets, that he shall have full charge of the care and preservation 
of shade trees. This is, of course, repealed by the codifying 
statute in question. St. 1896, c. 190, provided for the election of 
a tree warden. This obviously is no longer in force since the 
enactment of St. 1899, c. 330. The same may be said of St. 
1897, c. 428, relating to the powers of tree wardens and park 
commissioners in towns. 

On the other hand, Pub. Sts., c. 52, § 10, as amended by St. 
1885, c. 123, § 2, relates only to the cutting down of such trees 
and shrubbery, etc., as interfere with public travel. This is not 
affected by the statute of 1899, except so far as it concerns shade 
trees. 

My attention has also been called to St. 1897, c. 254, entitled 
''An act to provide for the further protection of trees and for the 
prevention of forest fires in woodlands." This act establishes the 
office of forester in towns accepting its provisions, and makes it 
his duty, among other things, to have charge of all trees within 
the limits of a public highway. In respect to such duties the act 
is superseded by the codification of 1899. The only portion of the 
act thus affected is the last part of section 1 and the whole of 
section 2. The codification does not repeal the statute in other 
respects. 

Your letter further inquires as to the effect of the codifying 
statute in question upon St. 1890, c. 196. This act authorizes the 
mayor and aldermen of cities and the selectmen of towns to desig- 
nate and preserve trees within the limits of the highways for the 
purposes of ornament and shade. It further requires the officers 
named to drive into the trees so designated a spike with a head 
with the letter M plainl}' impressed upon it. The act also pro- 
vides a penalty for interference with the spikes so affixed. 

This statute is still in force as to cities, for the statute of 1899 
refers only to towns. But I am of opinion that it is no longer 
applicable to towns. St. 1899, § 2, expressly defines shade trees 
as follows : "All shade trees within the limits of any public way 
shall be deemed to be public shade trees." There is, therefore, 
no further need of designating shade trees by any such dis- 
tinguishing mark; and, under the powers granted to the tree 
wardens, the selectmen have no longer any right of interference or 
control. I am of opinion, therefore, that you are not called upon 
to furnish M-spikes to towns, but that as to cities the law remains 
unaffected. 

Very truly yours, 

Hose A M. Knowlton, Attorney-General. 



68 ATTORNEY-GENERAL'S REPORT. [Jan. 



Board of Harbor and Land Commissioners — West's Beach Cor- 
poration — License to Construct Pier — XJltra Vires Act. 

The Board of Harbor and Land Commissioners may grant to the West's 
Beach Corporation a license to construct a pier on and over its beach 
into tide water, for the purpose of increasing the landing facilities 
for boats. 

Whether the construction of such wharf, as proposed by the corporation, 
would be ultra vires, is not a question within the scope of the duties 
of the Board. 

There would seem to be no reason, however, why the corporation may not 
if licensed by the Board, construct such wharf, its object being merely 
to facilitate the members of the corporation in their lawful occupation 
of the beach. 

June 14, 1900. 
Hon. Woodward Emery, Chairman, 

Board of Harbor and Land Commissioners. 

Dear Sir: — West's Beach Corporation was incorporated by 
St. 1852, c. 157. The object of its formation was to enable the 
holders of common rights on West's Beach to preserve their rights 
and prevent encroachment by others. Section 2 of said act pro- 
vided that: "The said corporation are hereby authorized to take 
and hold all that portion of the sea shore, beach and flats at Bev- 
erly Farms, in said town of Beverly, which is included within the 
following limits ; " a description of the territory by metes and 
bounds follows. Sections is a follows: " The members of said 
corporation may use and occupy said described portion of sea- 
shore, beach and flats for the purpose of gathering drift stuff and 
sea-weed, and of boating, as said premises have heretofore been 
used and occupied by them and their predecessors." 

The charter was amended by St. 1866, c. 131, but not in a way 
to affect the question submitted by your letter; which is, whether 
your Board has the right to grant to the corporation a license to 
construct a pier on and over its beach into tide water, for the pur- 
pose of increasing its landing facilities for boats. 

Your Board has authority to grant such a license under Pub. 
Sts., c. 19, § 9, and the provisions of that section would appear to 
dispose of the question submitted. But I understand, from state- 
ments by members of your Board, that the real question is, 
whether the construction of a wharf, as proposed by the corpora- 
tion, would be beyond the powers and privileges granted to it. 

I doubt very much whether the question of ultra vires as to the 
corporation is for the consideration of your Board. It touches the 
construction of its charter, and can properly be raised only by the 
sovereign granting the charter. The scope of the duties of your 
Board does not embrace such questions. 



1901.] PUBLIC DOCUMENT — No. 12. 69 

However, I have no hesitation in saying that I see no reason 
why, if duly licensed by your Board, the corporation may not 
build the wharf proposed ; its object being merely to facilitate the 
purpose of its incorporation, by affording better facilities of land- 
ing from row boats, sail boats and such craft as the members of 
the corporation may use in their lawful occupation of the beach. 
Yours very truly, 

HosEA M. Knowlton, Attorney- General. 



Member of Legislature — Eligibility for other Office — Inspector of 

Almshouses. 

The provisions of chapter 2, section 33, of the Public Statutes, do not 
prevent the State Board of Charity from appointing a member of the 
Legislature as its agent to inspect almshouses, in accordance with 
St. 1900, c. 215, since such office is not a public office within the 
meaning of that section. 

June 14, 1900. 
John D. Wells, Esq., Clerk, State Board of Charity. 

Dear Sir : — Pub. Sts., c. 2, § 33, is as follows : " No member 
of the senate or house shall during the term for which he is elected 
be eligible to any office under the authority of the Commonwealth 
created during such term, except an office to be filled by a vote of 
the people." 

Chapter 215 of the Acts of the present year authorizes the State 
Board of Charity to visit and inspect all almshouses maintained 
by the several cities and towns in the Commonwealth, and to 
report annually upon their condition and management, with such 
suggestions and recommendations as the Board may deem 
expedient. 

Acting under the authority of Pub. Sts., c. 79, § 2, which 
authorizes the Board to assign any of its powers or duties to agents 
appointed for the purpose, and to execute any of its functions by 
such agents, I understand that your Board desires to appoint a 
member of the General Court of this year to be inspector of alms- 
houses, — an office created by the Board, in consequence of the 
enactment of the statute of this year. 

The statute of this year creates no new office. It merely im- 
poses additional duties upon public officers already in the semce 
of the Commonwealth. Those officers had already been authorized 
by a previous statute to employ agents to assist them in the per- 
formance of their duties, but the agents so employed are not pub- 
lic officers, within the meaning of that term as used in the Public 
Statutes. Your letter states that the person to be appointed will 



70 ATTOENEY-GENERAL'S REPORT. [Jan. 

be inspector of almshouses. There is, however, no such office 
known to the statutes ; it is an office created and named by the 
Board. 

I am of opinion, therefore, that the provisions of the Public 
Statutes above quoted do not prevent the Board from appointing 
a member of the present Legislature its agent to inspect alms- 
houses, under the provisions of St. 1900, c. 215. 
Yours very truly. 

Hose A M. Knowlton, Attorney-General. 



State Highway — Cost of Maintenance — Constitutional Laiv — 
Impairment of Contract. 

The provision of St. 1893, c. 476, that the maintenance of State highways 
shall be paid for by the Commonwealth, and not by the towns through 
which the ways are located, does not constitute a contract to that 
effect between the Commonwealth and such towns, and it is compe- 
tent for a succeeding Legislature to change the burden of maintaining 
such highways in such manner as it sees fit. 

June 21, 1900. 

Hon. James J. Myers, Sj^eaker of the House of Representatives. 

Dear Sir : — I have the honor to acknowledge the receipt of a 
copy of an order adopted by the House of Representatives June 
19, requiring the opinion of the Attorney-General upon the 
question whether the Commonwealth is legally bound to maintain 
and repair State highways taken as such under the provisions of 
chapter 476 of the Acts of the year 1893, and whether the pro- 
visions of House Bill No. 1399, relative to the repair of State 
highways, would, if the bill became a law, be void or illegal as 
being in violation of any contract or obligation entered into or 
assumed by the Commonwealth for the maintenance and repair of 
State highways taken as such under the provisions of said chapter 
476 or any amendment thereof. 

Both questions depend upon the same considerations and can be 
conveniently considered together. The construction and mainten- 
ance of highways are matters of public concern, to be provided 
for by taxation in such manner under the Constitution as the 
General Court may from time to time provide. The Legislature 
of 1894, by the enactment of the statutes relating to State high- 
ways, provided that as to such ways the burden of their construc- 
tion and maintenance should be paid for by the Commonwealth, and 
not by the towns in which the ways are located. But no contract 
was thereby created between the Commonwealth and the towns 
petitioning for the location of State highways under the provisions 



1901.] PUBLIC DOCUMENT — No. 12. 71 

of the act, and it is competent for a succeeding Legislature to 
change the burden of support of State highways in such manner as 
it may see fit. There are no contractual relations in the matter 
between the Commonwealth and its various governmental divi- 
sions. It follows, of course, that the provisions of the proposed 
bill are not unconstitutional. 

Very truly yours, 

HosEA M. Knowlton, Attorney- General, 



Boston & Albany Railroad Company — Lease — Issue of Stock. 

So long as the proposed lease of the Boston & Albany Railroad Company 
may remain in force, there is no authority in any person or corpora- 
tion to issue the balance of stock provided for in St. 1889, c. 163. 

June 28, 1900. 
Hon. James J. Myers, Speaker of the House of Bejiresentatives. 

Dear Sir : — I have the honor to acknowledge the receipt of a 
copy of the order adopted by the honorable House of Representa- 
tives, June 25, as follows, to wit : — 

" Ordered^ That the Attorney-General be and hereby is requested 
to furnish the House of Representatives with an opinion as to who, 
if anybody, will have the right to issue the balance of five millions 
of the ten millions of stock authorized by chapter one hundred and 
sixty-three of the acts of the year eighteen hundred and eighty- 
nine, being ' An Act to authorize the Boston & Albany Railroad 
Company to increase its capital stock,' if the Boston & Albany 
Railroad is leased to the New York Central and Hudson River 
Railroad Company ; and if it may be issued he will give an opin- 
ion as to the conditions, regulations or terms under which such an 
issue may be made." 

The balance of stock authorized by the act referred to is to be 
issued as specified in the act : "for the improvement of the align- 
ment of its road, for the construction of additional tracks, for the 
purchase of land, for the separation of level crossings of highways 
and town ways, for the construction of new stations, and for the 
acquirement of private ways." 

Under the lease, however, all these matters are specially pro- 
vided for. All permanent improvements, the purchase of land, 
and other like matters, are to be paid for by the issuance of bonds 
of the lessor corporation, the interest on which bonds is to be paid 
by the lessee ; and there is no authority in the lease for the issuing 
of shares by the lessor corporation. The lessor corporation, there- 
fore, has no further occasion to issue shares under this act, and 



72 ATTORNEY-GENERAL'S REPORT. [Jan. 

in my opinion its authority so to do is superseded by the provi- 
sions of the lease into which, by the assent of the Commonwealth, 
it has entered. 

It is clear that the lessee corporation has no authority under the 
lease to issue stock of the lessor corporation. Although the lease 
purports to assign the " franchises" of the lessor, this cannot in 
my judgment be taken to include the franchise to issue additional 
stock. Such a franchise is inherently one belonging to the cor- 
poration alone, which it cannot assign without destroying its cor- 
porate integrity. 

I am of opinion, therefore, that there is no authority in any per- 
son or corporation to issue the balance of stock authorized by St. 
1889, c. 163, so long as the lease may remain in force. 
Yours very truly, 

HosEA M. Knowlton, Attorney-General. 



Boston & Albany Railroad Company — Legislature — Amendment 
of Lease — Consent of Commonwealth — Violation of Condi- 
tions — Revocation — Lessee Subject to General Laws — Special 
Burdens — Contract — Literstate Freight Traffic — Constitu- 
tional Laiu. 

Since the lease of the Boston & Albany Raih-oad Company is in form a 
contract between the parties, the Legislature cannot, by enactment, 
amend it. 

The consent of the Commonwealth to such lease is in the proposed statute 
conditioned not upon the performance by the lessee of the obligations 
imposed, but upon the obedience of the lessee to a decree of the Su- 
preme Judicial Court requiring such performance, which could be 
made only upon a finding that the lessee had assumed the duty for the 
neglect of which complaint is brought. No such duty having been 
assumed by the lessee, by agreement or otherwise, under this bill, the 
court would be without authority to decree its performance, and con- 
sequently the Legislature could not revoke its consent. 

If the lessee, a foreign corporation, by the consent of the Commonwealth 
enters upon the exercise of a franchise within the jurisdiction of the 
Commonwealth, it subjects itself to all such general laws as the 
Legislature may constitutionally enact regulating the conduct of such 
franchise. 

With regard to independent enactments, involving special burdens, the 
Legislature may impose conditions which accomplish the desired 
result if a contract for their performance is entered into by the lessee, 
either expressly or by implication. 

If the lessee elects, under the conditional consent of the Commonwealth, 
to become bound under the lease, it also becomes bound by implication 
to perform the conditions upon which such consent is given. 

A regulation by the Commonwealth of rates of freight from points without 
to points in and through the State is unconstitutional and void. 



1901.] PUBLIC DOCUMENT — No. 12. 73 

A private person, however, may make contracts with a railroad corpora- 
tion, with reference to freight, tliat are not in violation of any act of 
Congress; and it would seem that the Commonwealth as a party 
would have the same right that a private individual would have to 
make a contract relating to interstate freight rates, subject to the 
regulations of Congress upon the subject. 

July 2, 1900. 

Hon. James J. Myers, Speaker of the House of Representatives. 

Dear Sir : — I have the honor to acknowledge the receipt of 
copies of two orders, adopted by the honorable House of Repre- 
sentatives on June 27 and June 28, respectively, submitting cer- 
tain questions touching the construction of the bill (Senate, No. 
226, as amended) giving the consent of the Commonwealth to the 
lease of the Boston & Albany Railroad, and to reply thereto as 
follows : — 

First (order of June 27). — "Are the changes which Senate Bill, 
No. 226, has made in the original House Bill, No. 36, to be con- 
sidered in the nature of amendments to the lease which has been 
entered into between the directors of the Boston & Albany Rail- 
road and the New York Central & Hudson River Railroad ? " 

The proposed lease is in form a contract between two railway 
corporations. Such a contract cannot be amended except by fur- 
ther agreement between the parties. The Legislature, therefore, 
cannot by enactment amend the lease. 

Second (order of June 27). — "Do all the provisions of Senate 
Bill, No. 226, constitute conditions of the lease, so that a violation 
of any part of the proposed statute, if adopted by the Legislature, 
would invalidate the lease itself ? " 

By the first section of the bill the consent of the Commonwealth 
is given in absolute terms to the proposed lease. How far this 
consent is qualified by succeeding sections will be considered later. 
In section 2 the Commonwealth expressly reserves all rights of 
control over the leased road which it has or may have by general 
laws, or under the charter of the Boston & Albany Railroad. This 
section is without doubt merely declaratory of the rights of sover- 
eignty which the Commonwealth has over all franchises granted 
and exercised by its authority within its jurisdiction. Sections 3 
to 6 inclusive undertake to impose certain specific duties upon the 
lessee. They are in form independent enactments, and are not 
expressed to be conditions upon which the lease is granted. Some 
of them without doubt are merel}^ declaratory of duties which 
would be incumbent upon the lessee, whether expressly so enacted 
or not. But others of them, notably section 3, relating to inter- 
state freights, and section 5, requiring the expenditure of a large 
sum of money in East Boston, impose burdens upon the lessee 



74 ATTORNEY-GENERAL'S REPORT. [Jan. 

which, in my opinion, the lessee cannot be charged with without 
its consent. 

It is obvious that the framers of the bill had doubts of the right 
of the Legislature to impose these duties upon the lessee as inde- 
pendent enactments, and sections 8, 9 and 10 appear to have been 
drawn for the purpose of securing the performance of the duties 
so imposed. The scheme of these sections is, briefly, as follows : 
By sections 8 and 9, the Attorney-General is authorized, when 
advised by the Railroad Commissioners that these provisions, or 
any other of those contained in the bill, have been violated by the 
lessee, to institute legal proceedings to compel the observance of 
them ; and the Supreme Judicial Court of the Commonwealth is 
given jurisdiction to entertain such proceedings and to enforce the 
performance by the lessee of the provisions of the bill. Section 
10 thereupon provides as follows : " The consent and authority 
herein given by the Commonwealth is given upon condition that 
the final decrees and mandates of the supreme judicial court of 
this Commonwealth provided for in the foregoing sections of this 
act shall be complied with and observed by the lessee ; and said 
condition shall be enforceable as follows and not otherwise namely : 
upon any failure so to comply with and observe said decrees and 
mandates, notwithstanding any prior failure to observe and com- 
ply with any decree or mandate aforesaid, the consent and author- 
ity herein given may be revoked and annulled at any time by the 
general court." 

If, therefore, the duties required of the lessee by the bill are not 
performed, two remedies at least are attempted to be given to the 
Commonwealth : one is to enforce performance of such duties by 
decree of the Supreme Judicial Court ; the other is to revoke the 
consent given to the lease by the bill upon failure to obey such 
decree of the court. If the court has power to enter a decree for 
the performance of these provisions (omitting for the present any 
question of the right of removal of the proceedings to the Federal 
Court by the lessee, which will be considered later), the rights of 
the Commonwealth would seem to be sufficiently preserved. But 
the right of the court to enter such a decree must be based, not 
only upon the provisions of the bill purporting to give it jurisdic- 
tion over the lessee, but also upon the fact, if it be a fact, that the 
lessee is bound under the terms of the bill or otherwise to perform 
the duties imposed by it. The court may under the act entertain 
jurisdiction of the Attorney-General's suit, and may by proper 
process hale the lessee before it ; but the lessee will then have the 
right to claim that it never agreed to perform the duty the neglect 
of which it is charged with, and, if the court so holds, no decree 
can be entered, and the whole proceeding fails. 



1901.] PUBLIC DOCUMENT — No. 12. 75 

The vital question, therefore, is, whether the lessee is to be 
deemed to have consented to and to have agreed to perform the 
obligations imposed upon it in the bill by entering upon the 
demised premises under the lease. 

It is, to say the least, doubtful vrhether in its present form the 
bill can be so construed. It is to be observed that the consent of 
the Commonwealth is conditioned not upon the performance of the 
obligations imposed, but upon the obedience to a decree of the 
Supreme Judicial Court requiring such performance. As I have 
already remarked, the consent of the Commonwealth is given in 
absolute terms, except as to this sole condition, and the duties and 
obligations imposed upon the lessee are contained in enactments 
separate and independent, though parts of the same bill. The 
single condition attached to the consent, namely, that the lessee 
shall obey the orders of the Supreme Judicial Court, is very far 
from being equivalent to a condition that the lessee shall obey the 
provisions of the bill. If the latter be the intent of the Legislat- 
ure, it can easily be expressed in unambiguous language, rather 
than in terms which seem even to avoid indicating any such intent. 

I am of opinion, therefore, replying to the second question of 
the Honorable House of Representatives, that a violation of any 
part of the proposed statute would not invalidate the lease itself. 
Briefly, to restate my reasons therefor, they are : that under its 
terms the lease could not be invalidated by a revocation of the 
consent of the Commonwealth excepting upon non-performance by 
the lessee of a decree requiring such performance made by the 
Supreme Judicial Court; and that no such decree could be made, 
because the court would have no power to make it except upon a 
finding that the lessee had assumed the duty for the neglect of 
which the complaint was brought. No such duty having been 
assumed by the lessee, by agreement or otherwise, under this bill, 
the court would be without authority to decree its performance, 
and, consequently, the Legislature could not revoke its consent. 

Although the matter is beyond the strict scope of the questions 
submitted, I deem it proper to call the attention of the Honorable 
House of Representatives to another serious defect in the scheme 
of the bill as it stands. The right of revocation by the Legislature 
is reserved only upon non-performance of a decree of the Supreme 
Judicial Court of this Commonwealth. The lessee, however, is a 
foreign corporation. Under the statutes of the United States it 
has the undoubted right to remove any civil proceeding brought 
against it to the federal courts. After such removal the power of 
the Supreme Judicial Court of the Commonwealth to make a decree 
would be taken away, and a decree entered in the Federal Court 
would not give to the Commonwealth the right of revocation, 



76 ATTORNEY-GENERAL'S REPORT. [Jan. 

because such right by the terms of the bill is only created by 
disobedience of a decree of the State court. This, however, is a 
matter which can be taken care of by an amendment to the bill. 

Assuming that the Legislature desires to bind the lessee to the 
performance of the obligations contained in the bill, it may be 
desirable for the Attorney-General to submit his views as to how 
such a result may be accomplished. The lessee is a foreign cor- 
poration. If by the consent of the Commonwealth it enters upon 
the exercise of a franchise, like the operation of a railway, within 
the jurisdiction of the Commonwealth, it undoubtedly subjects 
itself to all such general laws as the Legislature may constitution- 
ally enact regulating the conduct of such franchise. But it is 
doubtful, to say the least, whether independent enactments, 
involving special burdens, the right to impose which does not 
arise from the police power of the Commonwealth, — such, for 
instance, as the provision regulating interstate freight rates, or 
the provision requiring the expenditure of a large sum of money 
in the construction of docks and terminal facilities, — are within 
the jurisdiction of the Commonwealth. 

But, whether they are or not, the desired result is surely accom- 
plished if a contract for their performance be entered into by the 
lessee. If, upon sufficient consideration, the lessee agrees with 
the Commonwealth that it will perform these duties, such an 
agreement, whether made in express terms or arising by implica- 
tion from circumstances (not considering at this time any questions 
arising under the commerce laws of the United States Constitu- 
tion), may be enforced in any court having jurisdiction of the 
parties and of the subject matter. 

How may such a contract be made? The most obvious and 
certain method is to require the express assent of the lessee to the 
conditions imposed by the Commonwealth. So far as the condi- 
tions imposed are constitutional, such an expressed assent would 
bind the lessee beyond peradventure ; and it is the clear duty 
of counsel to discharge himself of responsibility for results by 
advising a client, who has a choice of methods, to select that 
which leaves no room for doubt. 

But it is also incumbent upon me to say that a method less 
certain, though probably adequate to bind the lessee, would be so 
to frame the bill as to create an implied contract on the part of 
the lessee by the act of entry upon the demised premises. 

The parties have seen fit to make the lease operative only when 
the Commonwealth has ratified it, and until such ratification 
neither party is bound by any terms of the contract, and if such 
ratification is withheld there is no contract. And if the ratification 



1901.] PUBLIC DOCUMENT — No. 12. 77 

be conditioned upon terms which either party is not willing to 
accept, the lease is not binding upon such party, and may be 
treated as no lease. The Commonwealth has granted to the 
Boston & Albany Railroad Company a valuable franchise. It was 
a franchise, however, which the corporation has no right to sur- 
render or assign. Permission by the Commonwealth to transfer 
to another corporation the franchise so granted is in itself a 
franchise valuable to the party receiving it, and for the granting 
of which the Commonwealth may properly demand and receive 
compensation. That the Commonwealth may barter its franchises 
is well settled. An illustration of this proposition is to be found 
in the statutes relating to the granting of franchises to street rail- 
way corporations, under which terms, in the discretion of the 
municipal body, acting as the agent of the Commonwealth, may 
be imposed as a condition of the grant. The Commonwealth, 
therefore, has the right to impose upon the parties, or either of 
them, seeking to have the franchise transferred, such terms and 
conditions as it may see fit to impose ; and it may provide that its 
consent to such transfer shall be conditioned only upon the 
acceptance of such conditions by the parties, or by the party upon 
whom the burden of such conditions is imposed, and its agreement 
to observe and perform them. Express assent, however, is not 
always necessary. It may be implied from acts. If the consent 
of the Commonwealth is clearly expressed to be upon condition of 
the performance of certain specific duties by the lessee, and it is 
further provided in express terms in the act granting the consent 
that the entry by the lessee upon the demised premises and into 
the enjoyment of the franchise so granted shall be taken and 
deemed to be an assent to the conditions imposed and an agree- 
ment to perform them, and thereupon the lessee does so enter, I 
am of the opinion that it thereby agrees by implication to perform 
the duties so imposed, and that such agreement may be enforced 
in the courts. 

If the consent of the Commonwealth is qualified by conditions 
which must be accepted before the consent becomes effectual, the 
lessee may thereupon elect to treat the lease as void. But if it 
elects under such consent to become bound by the lease, it also 
becomes bound by implication, in my opinion, to perform the con- 
ditions upon which such consent was given. A new contract in 
addition to the contract of the lease is thus made between the 
Commonwealth and the lessee, the consideration of which is the 
consent by the Commonwealth to the transfer of the franchise 
theretofore enjoyed by the lessor. 

Third (order of June 27) — " Would the power of the Common- 



78 ATTORNEY-GENERAL'S REPORT. [Jan. 

wealth to enforce against a foreign corporation, like the New York 
Central & Hudson River Railroad Company, the provisions of the 
act authorizing the lease, be as complete as if the lessee were a 
domestic corporation ? " 

Inasmuch as, in my reply to the second question as above sub- 
mitted, I have advised the Honorable House of Representatives 
that what are probably regarded as the most vital of the provisions 
of the bill as it stands cannot be enforced at all against the lessee, 
it seems unnecessary to reply specially to this question. 

The order of June 28 requires the opinion of the Attorney-Gen- 
eral upon the question, substantially, whether section 3 of the bill 
in question is in violation of Article 1, section 8, of the Constitu- 
tion of the United States, granting to Congress the power to regu- 
late commerce among the several States. It is well settled that 
under this clause of the Federal Constitution the sole power to 
regulate interstate freight rates is in the Congress of the United 
States, and that it is of no consequence whether in any given case 
Congress has seen fit to exercise its power, or not. Failure to 
regulate rates is taken as an indication tliat Congress determines 
that there shall be no such regulation, and whether there has been 
such regulation or not by Congress, the State is powerless to pass 
any laws upon the subject. I am of the opinion, therefore, that 
section 3 of the Senate bill, considered as a regulation by the State 
of Massachusetts of the rates of freight from points without the 
State to points in or through the State, is unconstitutional and 
void, and cannot be enforced. 

If, however, a contract, express or implied, is made between the 
Commonwealth and the lessee relating to the rates of freight, a 
very different question arises, and one upon which much can be 
said upon both sides. If such a provision be made, not as a legis- 
lative enactment but as one of the terms upon which the consent 
of the Commonwealth is granted, and such terms are assented to 
by the lessee, the result is a contract between the Commonwealth 
and lessee, under which the latter is limited in the amount it may 
charge for freights of the description named in the section. Assum- 
ing that such a contract were made, and assuming, further, that 
its provisions were so drawn as to leave the lessee subject to any 
regulations which might be made upon the subject by Congress, 
would such a contract be void? 

With some hesitation I am inclined to the opinion that the 
Commonwealth as a party has the same right to make a contract 
relating to interstate freight rates, subject always to any regula- 
tions upon the subject that may be made by Congress, as a private 
individual might make with the same railroad. Obviously, the 



1901.] PUBLIC DOCUMENT — No. 12. 79 

provisions of the Federal Constitution are not to be taken as 
restraining the power of the raih-oad corporation to make contracts 
with reference to freight that are not in violation of the provisions 
of any act of Congress. I see no sound reason to distinguish 
between such contracts with private persons and a contract upon 
sufficient consideration between the State and a railroad corpora- 
tion. Such a contract would not be a legislative enactment, deriv- 
ing its authority from the sovereignity of the Commonwealth, but 
would be the act of a State as a party parting with rights, and 
receiving the agreement of the railroad in consideration therefor. 
The question, however, in view of the decisions of the Supreme 
Court of the United States, is not one free from doubt, and can 
only be finally determined when directly presented to that tribunal. 
Yours very truly, 

HosEA M. Knowlton, Attorney-General. 



Boston & Albany Railroad Company — Lease — Conseyit of Com- 
monwealth — Conditions — Acceptance by Lessee — Modification 
of Lease — Foreign Corporation — Financial Affairs. 

A provision in the proposed statute to ratify the lease of the Boston & 
Albany Railroad Company, stipulating that the consent of the Com- 
mon^vealth is not to take effect until the conditions imposed by the 
Commonwealth are accepted by the lessee by a corporate vote, is the 
most effectual way to insure the performance of the conditions by 
the lessee, and to reserve the right of revocation by the Common- 
wealth upon the failure of such performance. 

The lease itself cannot be cancelled, amended or modified by the parties 
without the further consent of the Commonwealth. 

The lessee, being a foreign corporation, is subject to the paramount 
authority of the State granting its charter, and its financial affairs 
cannot be made subject to direct legislation by this Commonwealth. 

July 6, 1900. 
Hon. James J. Myers, Speaker, House of Representatives. 

Dear Sir : — I have the honor to acknowledge the receipt of a 
copy of an order adopted by the Honorable House of Representa- 
tives on the fifth day of July inst., requiring the opinion of the 
Attorney-General upon certain questions therein submitted, and to 
reply thereto as follows, to wit : — 

First. — " Would the passage of the bill now printed as House 
Document No. 1456, insure the permanent right of the General 
Court to terminate the lease of the Boston & Albany Railroad to 
the New York Central & Hudson River Railroad Company, if any 
provision in said Document No. 1456 were violated?" 



80 ATTORNEY-GENERAL'S REPORT. [Jan. 

Second. — "If said House Document, No. 1456, does not insure 
said rights to the General Court in all of its provisions, please 
name those portions of the proposed law whose violation would 
not cause a termination of the lease." 

Sixth. — "Can the lease of the Boston & Albany Railroad to 
the New York Central & Hudson River Railroad Company be now 
ratified under House Document, No. 1456, without the subsequent 
votes of the stockholders of the two railroad corporations herein- 
before mentioned accepting all of the provisions of said House 
Document, No. 1456?" 

Seventh. — "If it is not necessary to have the stockholders' 
votes of both railroad companies upon all of the provisions of 
House Bill, No. 1456, please mention those provisions of the bill 
upon which such votes of acceptance upon the part of the stock- 
holders of either railroad company would not be necessary." 

The foregoing questions were fully considered and answered, so 
far as I am able to answer them, in an opinion which I had the 
honor to submit to the Honorable House of Representatives on the 
second day of July inst. ; but, for the convenience of the House, 
I now restate the conclusions therein submitted. 
■ A provision in the bill, stipulating that the consent of the Com- 
monwealth should not take effect until the conditions imposed by 
the Commonwealth be accepted by the lessee by a corporate vote, 
insures the performance of the conditions by the lessee, and 
reserves the right of revocation by the Commonwealth upon the 
failure of such performance, in the most effectual way in which 
such result can be attained. 

The bill as it stands declares that such acceptance by the lessee 
is to be deemed to have been made by entry upon the demised 
premises and enjoyment of the franchise assigned to it. Such an 
acceptance, in my opinion, is binding upon the lessee. But I am 
QOt prepared to say that the rights of the Commonwealth are 
msured thereby so effectually as by a corporate vote. No counsel 
can assure his client that the court of last resort will determine 
questions of law in accordance with his opinions. His duty is 
discharged when he points out the various methods in which the 
desired result can be attained, with the contingencies that arise as 
to each method, leaving it to the client to determine which method 
shall be employed. 

These observations apply alike to all the provisions of House 
Bill, No. 1456, excepting that, as I have already had occasion to 
inform the Honorable House of Representatives, I am of opinion 
that sections 7 and 8, and probably section 5, are binding upon 
the parties to the lease, whether accepted by them or not. If they 



1901.] PUBLIC DOCUMENT — No. 12. 81 

are not so binding, they stand upon the same footing as the other 
provisions of the bill. 

Third. — "Does the tenth provision of the lease printed as 
Senate Document, No. 236, if once ratified by the General Court, 
permit the Boston & Albany Railroad Company and the New 
Tork Central & Hudson River Railroad Company to make further 
modifications and amendments to the lease without the necessity 
of further ratification of the General Court?" 

Fourth. — "Are there any provisions of the lease, as printed in 
Senate Document, No. 236, which would be equivalent to a con- 
sent on the part of the Commonwealth to future modifications of 
the lease without further legislation, or to the release of the Bos- 
ton & Albany Railroad Company from any of the restrictions of 
Massachusetts laws to which the railroad is now subject ? " 

The foregoing questions are fully considered and answered in 
the opinion submitted to the Honorable House of Representatives, 
March 16, 1900. In that communication I stated it as my opinion 
to which I still adhere, that the lease cannot be cancelled, amended 
or modified by the parties without the further consent of the Com- 
monwealth. The same observations, however, which I have 
already made hereinbefore as to the first and second questions 
apply with equal force to these questions. All doubt upon the 
subject can be removed by a provision in the bill prohibiting such 
cancellation, modification or amendment, which provision is made 
a condition upon which the consent of the Commonwealth is 
granted, with the further provision that such condition be accepted 
by a vote of the corporation. 

Fifth. — "Do the words ' so far as the operation of said railroad 
is concerned,' in section 5 of House Document, No. 1456, limit the 
application of that section to the operating department of the Bos- 
ton & Albany Railroad, so that the section may not apply to the 
financial affairs of the lessor?" 

None of the provisions of the lease or of the proposed bill affect 
in any way the financial affairs of the lessor. They remain subject 
to the general provisions of law applicable to domestic railroad 
corporations, and to whatever special provisions, if any, are in 
force applicable to the lessor. 

I cannot believe, however, that it was the intention of the Hon- 
orable House of Representatives to submit any questions with 
regard to the financial affairs of the lessor, and I feel sure that 
the intention was to inquire as to the effect of the bill upon the 
financial affairs of the lessee. 

Assuming such to be the question intended, I beg to answer as 
follows : The expression " financial affairs of the lessee," as used 



82 ATTORNEY-GENERAL'S REPORT. [Jan. 

in connection with legislation, I understand to mean the issuance 
of stock and bonds and the payment of dividends upon the stock 
of the corporation. As to these matters, the lessee, being a for- 
eign corporation, is subject to the paramount authority of the State 
granting its charter. Its financial affairs cannot be made subject 
to direct regulation by this Commonwealth. If statutes were 
enacted in relation to such matters by Massachusetts contrary to 
the provisions of the statutes of New York, it would still be the 
duty of the lessee to obey the laws of the latter State. 
Very truly yours. 

Hose A M. Knowlton, Attorney -General, 



Firemen — Alloiva7ice in Case of Death — Acting Members of Reg- 
ular Fire Department. 

Persons who have been impressed into the service of a regular, organized 
fire department of a city or town, and are performing actual and 
necessary duties as acting members, are, for the time being, " firemen 
belonging to the regular organized force " of such city or town, within 
the meaning of St. 1899, c. 417. 

July 13, 1900. 
Hon. John W. Kimball, Auditor. 

Dear Sir : — The widows of Arthur A. Josselyn and Joseph E. 
Watkins claim allowances under the provisions of St. 1899, c. 417, 
■the claims being for the sum of one thousand dollars each, on 
•account of the death of said men while performing duty at a fire 
in Foxborough. 

The chief engineers, in their report to you state that, " at the 
time they (the men in question) received their injuries, they were 
acting members of said fire department, having been impressed 
into the service the morning of the fire, to fill places of absent 
regular members of our company." 

As originally enacted (St. 1893, c. 401), I should have had 
some doubt whether it was the intention of the Legislature to 
include cases of this character. That statute, so far as it relates 
to the question at issue, was as follows: "When any fireman 
belonging to the regular organized force of any city or town of 
this Commonwealth is killed." It would be at least questionable 
whether acting members of a fire department could be said to be, 
within the meaning of the statute, "men belonging to a regular 
organized force." 

But, as amended in 1899, the intention of the Legislature 
appears to me to be clear to include all persons rightfully doing 
duty at a fire, either by order or request of the authorities, or as 



1901.] PUBLIC DOCUMENT— No. 12. 83 

members, regular or temporary, of a fire department. I cannot 
believe that the Legislature intended to pay the representatives of 
persons killed who were simply *' doing fire duty at the request or 
upon the order of the authorities of any town having no organized 
fire department, or any person performing the duties of a fireman 
in a town having no organized fire department," and to refuse 
payment to the representatives of those who, under a similar 
request or order, had become, for the time being, members of a 
fire department engaged in fire duty. 

Under this interpretation, the men in question for the time 
being belonged to a fire department ; they had been impressed into 
the service, and were doing their duty as such acting members. 
I do not think it strains the intention of the law to allow these 
claims. On the contrary, I think they could be disallowed only 
upon a technical and narrow interpretation of the language of the 
statute, which was never intended by the Legislature. 
Yours very truly, 

HosEA M. Knowlton, Attorney 'General. 



County Accounts — Police Officers and Constables — Fees — 

District. 

A district is a distinct geographical division, established by the sover- 
eignty for the purpose of taxation, and therefore the receipt of a salary 
from such district does not, under St. 1890, c. 440, preclude an officer 
who in the service of a warrant acts, not as a district, but as a town 
officer, from charging his fees therefor. 

July 13, 1900. 
Charles R. Prescott, Esq., Controller of County Accounts. 

Dear Sir : — Your letter of March 22 submits the question 
whether public officers or constables appointed by the town of 
Easton, without salary, who, as such constables or police officers, 
serve criminal process, are entitled to fees for such service, not- 
withstanding the fact that they are paid a salary by the North 
Easton Improvement District. 

The question arises under the provisions of St. 1890, c. 440, § 1, 
which is as follows : " Except as specially provided in this act, no 
officer in attendance on any court, and no sheriff, deputy sheriff, 
jailer, constable, city marshal, or other police officer who receives 
a salary or an allowance by the day or hour from the Common- 
wealth, or from any county, city or town, for his official services, 
shall be paid any fee or extra compensation whatever for any 
special services rendered or performed by him in any criminal case 
in which the Commonwealth or any county, city or town is a party 



84 ATTORNEY-GENERAL'S REPORT. [Jan. 

interested. ..." It is well understood that under this act con- 
stables and police officers receiving a salary from the city or town 
by which they are employed cannot charge fees for service of 
criminal process. 

There can be no doubt that the intention of the Legislature was 
to include all salaried officers ; but I think this is a case where the 
letter of the law must govern, rather than the presumed intent of 
the Legislature. The North Easton Improvement District is not 
a town, but only a small portion of one. The word " district," 
when used in the legislation of the Commonwealth, has a special 
and well-understood signification. It includes, among others, fire 
districts, school districts and watch districts. Its revenue is pro- 
vided for by taxation of its inhabitants. It is a distinct geograph- 
ical division, established by the sovereignty for the purpose of 
taxation, — as much so as a county, a city or a town. These facts 
must have been in the mind of the Legislature when the act in 
question was framed. That being so, I am unable to read the 
word " district" into the act whose terms are so clear, or to con- 
strue '* town " to include '' district." 

"Whether the omission was by accident or by design, I am of 
opinion that the receipt of a salary from a district does not pre- 
clude an officer who, in the service of a warrant, acts not as a 
district, but as a town officer, from charging his fees therefor. 
Very truly yours, 

HosEA M. Knowlton, Attorney -General. 



County Accounts — Fees and Expenses Before Trial Justices — 
Constructive Repeal. 

Since it was the intention of the Legislature, in St. 1891, c. 325, to make 
proceedings before trial justices in all respects like those before the 
inferior courts of record, a provision in St. 1890, c. 440, which is at 
variance with such intention, is constructively repealed. 

July 13, 1900. 
Charles R. Prescott, Esq., Controller of County Accounts. 

Dear Sir: — St. 1890, c. 440, entitled "An act relating to fees 
of salaried officers, to expenses of criminal cases, of inquests and 
of commitment of the insane," changed radically the system before 
then in force relating to expenses of criminal cases and the dis- 
position of fines and costs. Formerly, in police, district or 
municipal courts the fees and expenses of officers were paid by the 
county, and all fines, forfeitures and costs recovered in such courts 
were paid into the county treasury. The statute in question 



1901.] PUBLIC DOCUMENT— No. 12. 85 

changed this by providing that such fees and expenses shall be 
paid by the city or town in which the offence is committed, and 
that the fines and forfeitures recovered shall be paid to the same 
city or town ; thus imposing upon cities and towns the expenses of 
prosecutions for petty offences, and giving to them the revenue by 
way of fines and forfeitures recovered from such prosecutions. 
The act contains no reference to trial justices, except in section 
2, the last clause of which provides that in cases before trial jus- 
tices the fees and expenses of officers, if not paid by defendants, 
shall be paid by the county where the trial is had. 

St. 1891, c. 325, § 1, is as follows : '' The provisions of chap- 
ter 440, acts of the year 1890, which relate to police, district and 
municipal courts, shall apply, with equal force and effect, to trial 
justices and proceedings before them." 

The question submitted by your letter of March 22 is whether 
the section last quoted is intended to repeal the last clause of 
section 2 of chapter 440, so that, in cases before trial justices, 
officers' fees, instead of being paid by the county, as provided in 
the former act, shall be paid by the city or town where the offence 
was committed, as in cases before police, district and municipal 
courts. 

Upon the general principles of construction applicable to such 
cases, it might fairly be contended that the special provision with 
relation to trial justices in the former act was intended to be left 
unchanged by the later act. The expression " the provisions . . . 
[in the former act] which relate to police, district and municipal 
courts," in the statute of 1891, would not ordinarily include a 
special provision in the former act not relating to police, district 
and municipal courts, but to trial justices, unless, from other 
provisions of the act, the intention of the Legislature appears to 
be inconsistent with such a construction. 

Upon consideration, however, of the whole act, I am of opinion 
that the intention of the Legislature was that all its provisions, 
including those relating to the payment of officers' fees, were 
intended to be applicable to trial justices ; and that these tribunals 
were to be put upon the same footing in all respects with police, 
municipal and district courts. For example: by section 5, fines 
and forfeitures recovered in police, district and municipal courts 
are payable to the town or city in which the offence was committed. 
This provision is clearly made applicable to trial justices by the 
later act. It is not to be presumed that the Legislature intended 
that such towns and cities should have the financial benefits of 
such prosecutions, and at the same time not be liable for the 
expenses incurred. Section 8 provides that the disbursing officers 



86 ATTORNEY-GENERAL'S REPORT. [Jan. 

in district courts shall pay the fees and expenses at the end of the 
trial, if they have in their hands sufficient funds payable to the 
city or town liable therefor ; if they do not have such funds, 
the fees are to be certified to the treasurer of the city or town 
liable, who shall pay them. This section cannot apply to pro- 
ceedings before trial justices, if the clause in question in the 
former act is not repealed by the later act. 

I do not think that such inconsistencies were intended, but that 
the purpose of the Legislature was to make proceedings before 
trial justices in all respects like proceedings before the inferior 
courts of record ; and that the provision in the act of 1890, that, 
in cases before trial justices, the fees and expenses of officers are 
to be paid by the county, is constructively repealed by the act 
of 1891. 

Very truly yours. 

Hose A M. Knowlton, Attorney -General. 



Insurance — Fraternal Beneficiary Corporations — Form of Con- 
tract — Benefit Certificate — Reserve Fund, 

St. 1899, c. 442, relating to fraternal beneficiary corporations, regulates 
the form of the contract between the company and the certificate 
holder, by providing that such contract shall specify that the latter 
shall only receive the amount collectable by an assessment upon the 
members, regardless of the amount named in the certificate, except 
that when the corporation has, at the time when the certificate is pay- 
able,, a reserve fund upon which it has the right to draw, the whole 
amount may be paid. 

July 19, 1900. 

Hon. Frederick L. Cutting, Insurance Commissioner. 

Dear Sir: — St. 1899, c. 442, relating to fraternal beneficiary 
corporations, provides in section 11 as follows : " The benefit cer- 
tificate shall, in effect, provide that if the death of the member 
therein named shall occur when one full assessment on each mem- 
ber would not amount to the face sum of the maximum certificate 
of such corporation, then the amount paid the beneficiary there- 
under shall not exceed the amount of such full assessment or the 
proportionate part thereof which said face sum named in such cer- 
tificate bears to such maximum certificate ; but this restriction shall 
not apply to a corporation which confines its membership to the 
permanent employees of towns, cities, the Commonwealth, or the 
federal government, nor to a corporation having an emergency or 
reserve fund until such fund shall have been exhausted." 

Your letter of May 9 submits the question whether a corporation 
which has a reserve fund need insert the proviso in question in its 



1901.] PUBLIC DOCUMENT — No. 12. 87 

benefit certificates, so long as any portion of such reserve fund 
remains in the possession of the corporation. 

Taken literally, the language quoted does not require the inser- 
tion of the proviso until the reserve fund has been exhausted. But 
such a construction is manifestly absurd. The fund is exhausted 
not by the issuance of certificates, but by payments under them ; 
and it is impossible to determine in advance whether the reserve 
fund will be sufficient to make good the amount insured when the 
certificate shall become payable. If, therefore, the section be con- 
strued according to its literal terms, it has no useful meaning and 
serves no purpose. 

Although the language of the section is not in all respects hap- 
pily chosen, the intention of the Legislature undoubtedly was to 
regulate the form of the contract between the company and the 
certificate holder, by providing that it shall specify that the latter 
shall only receive the amount collectable from an assessment upon 
the members, regardless of the amount named in the certificate^ 
excepting that if, when the certificate is payable, the association 
has a reserve fund upon which it has the right to draw to make up 
the deficiency, the whole amount may be paid. If the contract be 
so worded, the beneficiary is not misled and the purpose of the 
statute is carried out. 

I am of opinion, therefore, that such is the construction to 
be given to the statute, and that certificates are to be worded 
accordingly. 

Yours very truly, 

HosEA M. Knowlton, Attorney-General. 



Fraternal Beneficiary Association — Foreign Assessment Insurance 
Company — Employment of Paid Agents, 

The features of fraternal beneficiary associations which distinguish them 
from assessment insurance companies are the non-employment of 
paid agents and the conduct of business upon the lodge system. Any 
insurance company, therefore, which elsewhere than in this State 
employs paid agents to solicit business, is not a fraternal beneficiary 
association within the meaning of the term as used in the statutes of 
Massachusetts, even though such agents are not employed in Massa- 
chusetts, but is, in effect, an assessment insurance company, and, as 
such, is not entitled to do business within this Commonwealth. 

July 20, 1900. 
Frederick L. Cutting, Esq., Insurance Commissioner. 

Dear Sir: — Your letter of May 9 submits the question 
whether a foreign assessment insurance company, which in other 
States employs paid agents in soliciting business, may do business 



88 ATTORNEY-GENERAL'S REPORT. [Jan. 

in this State under the provisions of St. 1899, c. 442, if it does 
not employ such paid agents in this Commonwealth. 

The Legislature of this State has recognized three general 
classes of life and disability insurance, to wit : first, what may, 
for convenience, be termed " old line" insurance; second, assess- 
ment insurance conducted as a business enterprise ; and third, 
fraternal benefit insurance, being that form of insurance which is 
provided by membership in fraternal and benevolent associations. 

In the General Statutes enacted in 1860 there is no reference 
whatever to any other than "old line" insurance. The first 
appearance in legislation of assessment insurance in any form was 
in St. 1877, c. 204, which provided that associations incorporated 
for educational, benevolent and religious purposes might, " for the 
purpose of assisting the widows, orphans or other descendants of 
deceased members, provide in their by-laws for the payment by 
each member of a fixed sum, to be held by the association until 
the death of a member occurs, then to be forthwith paid to the 
person or persons entitled thereto." It was further provided that 
the provisions of general insurance laws should not be applicable 
to such beneficiary insurance corporations. 

Although the clear intent of this statute was to authorize only 
the payment of death benefits to the representatives of deceased 
members of benevolent and fraternal associations, an extensive 
assessment insurance business grew up, the companies transacting 
which, while claiming to be authorized by this statute, were in fact 
doing business illegally. 1 Op. Atty.-Gen., 468. They were 
using a statute intended for charitable purposes to carry on an 
assessment insurance business. See Bliss et al. v. Parks et al.^ 
175 Mass. 539. 

The attention of the Legislature was called to these practices, 
but, instead of prohibiting them, they were legalized by St. 1885, 
c. 183, which was the first of a long series of statutes authorizing 
the formation of corporations for the carrying on of assessment 
insurance. The statute of 1885, which regulated the assessment 
insurance business, expressly exempted fraternal benefit companies 
from its provisions, and they remained without special legislative 
regulation until St. 1888, c. 429, which was entitled "An act 
relating to fraternal beneficiary organizations." With the enact- 
ment of that statute all three classes of insurance were recognized, 
and were regulated by statutes relating to each class. 

It is not always easy to draw the line between a charitable 
association and an ordinary assessment insurance company. Both 
provide for the payment of benefits to the representatives of 
deceased certificate holders, the funds for which are derived from 



1901.] PUBLIC DOCUMENT — No. 12. 89 

assessments upon other certificate holders. In this respect both 
are equally engaged in the business of assessment insurance. 

The Legislature, however, in 1899 (c. 229, §§ 5, 6), prohibited 
the further carrying on of the business of assessment insurance, 
and repealed all legislation authorizing such business. Fraternal 
insurance associations were not included in this prohibition. It 
becomes necessary, therefore, to ascertain the legislative distinction 
between the two forms of insurance. In the first statute relating 
to fraternal beneficiary associations (St. 1888, c. 429, § 5), after 
regulating the formation of such corporations, it was provided in 
section 8 as follows: "Any corporation duly organized as afore- 
said, and which does not employ paid agents in soliciting or 
procuring business, other than in the preliminary organization of 
local branches, and which conducts its business as a fraternal 
society on the lodge system, or limits its certificate holders to a 
particular order, class or fraternity, or to the employees of a 
particular town or city, designated firm, business house or corpo- 
ration, may provide in its by-laws," etc. These words, in my 
opinion, define fraternal beneficiary associations as distinguished 
from assessment insurance companies. The same language is used 
in St. 1894, c. 367, which was a revision of existing statutes 
relating to beneficiary associations. In subsequent revisions 
(St. 1898, c. 474 ; St. 1899, c. 442) the provision with relation to 
the employment of paid agents is omitted from the section, a part of 
which I have quoted above, but is re-enacted in a separate section. 

From these provisions it sufficiently appears that in all the legis- 
lation relating to fraternal beneficiary associations the Legislature 
has made the non-employment of paid agents and the conduct of 
business on the lodge system the distinctive features of such asso- 
ciations, as distinguished from assessment companies. It has thus 
carefully drawn the line between enterprises in their nature chari- 
table and those which are entered into merely for the purposes of 
gain, and has declared that one of the distinguishing characteristics 
of an association purely benevolent is the fact that it does not 
employ paid agents to solicit business. 

I am of opinion, therefore, that any insurance company which 
elsewhere than in this State employs paid agents to solicit business 
is not a fraternal beneficiary association within the meaning of 
that term as used in our statute, even though it does not employ 
paid agents in this State ; but is, rather, in effect an assessment 
assurance company, and, as such, cannot do business within this 
Commonwealth. 

The provision in the later statute relating to fraternal benefi- 
ciary associations (St. 1899, c 442, § 21), that "no corporation 



90 ATTORNEY-GENERAL'S REPORT. [Jan. 

organized or transacting business under this act shall employ paid 
agents in soliciting or procuring business," is not a mere local 
regulation. If it were, it would be in force only in this Common- 
wealth, and would not apply to foreign corporations. But, in 
view of the history of fraternal beneficiary associations and of 
their distinctive character as defined in the legislation of the Com- 
monwealth, the prohibition of section 21, above quoted, is more 
than a mere local regulation. It is declaratory of the character of 
the association, and as such applies equally well to foreign and 
domestic companies. 

The result of holding otherwise would be that, while no domestic 
company can carry on assessment insurance business in this Com- 
monwealth, any such company from abroad can come within the 
Commonwealth, and, by omitting to employ paid agents here, 
enjoy all the advantages of assessment insurance business denied 
to local companies. 

I cannot believe the Legislature so intended. On the other 
hand, I am of o[)inion that it is your duty, when you are satisfied 
that an assessment insurance company is conducting business 
through paid agents, to deny it admission to this Commonwealth. 
It is not a fraternal beneficiary association within the meaning of 
that term as used in the legislation of this State. 
Yours very truly, 

HosEA M. Knowlton, Attorney -General. 



Flats — Erection of Structures — Solid Filling — Displacement of 

Tide Water. 

A decree of court requiring the erection of certain structures in tide 
water, by the city of Boston, and directing that ''the first approach 
. . . shall be filled solid with suitable filling," does not require the 
city to make a structure impervious to water. 

The word "solid," when used with reference to a structure to be erected 
in tide waters, is, unless words are used which clearly require such 
structure to be water-tight, to be taken to mean a structure built up 
solidly from the bottom, in contradistinction to one supported on piles. 

The compensation to be paid, under Pub. Sts., c. 19, §14, by the party 
erecting in tide waters a structure impervious to water, which lessens 
the amount of flow not only upon the flats covered by it, but also over 
adjacent flats, should be ascertained upon the basis of all the tide 
water which such structure displaces. 

July 21, 1900. 
Hon. Woodward Emery, Chairman, 

Board of Harbor and Land Commissioners. 

Dear Sir: — Your letter of June 6 submits the question 

whether, upon the facts stated in the documents accompanying the 

letter, the Boston Electric Light Company should be required to 



1901.] PUBLIC DOCUMENT — No. 12. 91 

make compensation for tide water displaced by the filling of flats 
under a license from your Board. The facts, as far as they are 
material to the questions raised, appear to be substantially as 
follows : — 

By a decree of the Superior Court, duly entered upon a petition 
for the abolition of certain grade crossings on Congress Street, the 
city of Boston was directed, among other things, to build upon 
certain flats, a part of which at that time belonged to the Boston 
Electric Light Company, a way, being a part of what is now Dor- 
chester Avenue extension. The terms of that part of the decree 
relating to this way were as follows : " Tenth. The first approach 
leading from Atlantic Avenue to said new street shall be filled 
solid with suitable filling, supported where necessary, by a sea- 
wall, and shall have a roadway paved and curbed with granite 60 
feet wide, with a sidewalk on each side 10 feet wide, paved with 
brick." 

As this work was required to be built over tide waters, the city 
of Boston applied to your Board for a license therefor. Their 
petition was filed in May, 1897, and was for a license to build " a 
sea-wall on the pier-head line, between Summer Street and Con- 
gress Street, and along the line of widening of Congress Street, and 
to fill back of said wall." In September, 1897, your Board issued 
a license authorizing the city of Boston "to build a sea-wall on the 
pier-head line between the northerly side line of Summer Street 
extension and the northerly side line of Congress Street as widened 
to 80 feet, and on said northerly side line of Congress Street as 
widened, from said pier-head line to the sea-wall of the Boston 
Eeal Estate Trust ; also to fill solid back of said sea-wall, in con- 
formity with the accompanying plan No. 2043." In conformity 
to these decrees the city of Boston has built, or is building, a solid 
structure. It has, however, constructed viaducts in said structure, 
through which the tide ebbs and flows upon the flats in the rear 
thereof. These flats belong to the Boston Electric Light Com- 
pany. 

The precise question submitted by your letter is whether the 
displacement of tide water which will be occasioned when the flats 
of the Boston Electric Light Company are filled should be paid for 
by the city of Boston or by the Boston Electric Light Company. 
The contention of the latter company is that, inasmuch as both the 
decree of the Superior Court and the license of your Board specify 
a sea-wall and a solid filling for the structure to be erected by the 
city of Boston, the land in the rear must necessarily be thereby 
cut off from the ebb and flow of the tide, so that there would be 
no longer any displacement of tide water caused by the filling of 
the flats of the company ; and that the city of Boston should pay 



92 ATTORNEY-GENERAL'S REPORT. [Jan. 

for all the tide water which would be displaced by the structure 
built by it as a solid structure, impervious to the flow of the tide. 

There can, of course, be no question that, if such a structure 
were built under license from your Board which would cut off all 
the land in the rear from the ebb and flow of the tide, the dis- 
placement to be paid for by the party erecting such a structure 
would include not merely the territory covered by the structure, 
but all the flats in the rear so separated from the ebb and flow of 
the tide. The language of the statute (Pub. Sts., c. 19, § 14) is 
as follows : " The amount of tide water displaced in tide water 
below high-water mark, or by any filling of flats," etc. The 
section further provides that the annual income from all fees for 
compensation for tide water displaced shall be expended by your 
Board for the improvement of the harbor. The purpose of the 
section was clearly to require persons lessening the volume of 
tidal flow over flats adjacent to a harbor to contribute in proportion 
to the amount of such lessening to a fund for the improvement of 
the harbor. A solid structure, impervious to water, would lessen 
the amount of flow, not only upon the portion of the flats covered 
by the structure, but upon all the flats from which the water was 
thereby kept ; and the compensation to be paid by the party 
building such a structure should be ascertained in view of all such 
displacement. 

The difficulty with the contention of the Boston Electric Light 
Company is, that it interprets the words ^' filled solid," which 
occur several times in the decree, and are used in the license of 
your Board, to mean a filling which is effectual to shut off the flow 
of water. Unless the word "solid" necessarily imports such a 
meaning, this interpretation is not warranted by the language of 
any part of the decree or of the license. On the contrary, referring 
to another part of the work, the decree requires the building of a 
wall of stone laid in cement, which obviously would be a water- 
tight structure. It does not follow that a sea-wall, or even a solid 
structure is impervious to the ebb and flow of the tide. On the 
contrary, it is a matter of common knowledge that in the case of 
loosely built stone walls the water flows through almost as readily 
as through a pile structure. 

The language used both by the court and by your Board, in my 
opinion, has reference, not to the question of imperviousness to 
water, but rather to the character of the structure for the purposes 
for which it is to be used. Two kinds of structures are in common 
use in tide waters : one is a solid filling, the other a structure 
supported by piles. When the term " solid " is used with reference 
to a structure to be constructed in tide waters, it is, unless words 



1901.] PUBLIC DOCUMENT— No. 12. 93 

are used which clearly require a water-tight structure, to be taken 
to mean a structure built up solid from the bottom, in contradis- 
tinction to a pile structure. 

There was nothing either in the decree of the court or in the 
license of your Board which required the city of Boston to make 
its structure impervious to water ; and unless, for reasons which 
have no reference to the case of the Boston Electric Light Com- 
pany, your Board saw fit to direct otherwise, it might properly 
provide for the passage of tide water through the sea-wall and 
filled roadway without disobeying the essential terms of the decree 
or of your license. 

But, however this may be the situation as to the Boston Electric 
Light Company, so far as it concerns its obligations under the 
law, is very simple. It is in possession of flats over which the 
tide water ebbs and flows. It seeks permission to fill those flats 
and thereby to displace a corresponding amount of tide water 
which actually flows upon its premises. It is not a party to any 
questions which may arise between your Board and the city of 
Boston, or between the court and the city, and cannot set up the 
city's acts to support its claim that it should not pay for the dis- 
placement which its filling actually causes. 

For these reasons, I am of the opinion that your Board may 
properly determine that the Boston Electric Light Company should 
pay for the amount of tide water actually displaced by it by filling 
its flats. 

Yours very truly, 

HosEA M. Knowlton, Attorney- General. 



Foreign Corporations — Express Companies — Appointment of 
Agent for Service — Unincorporated Associations. 

So much of Pub. Sts , c. 73, § 3, which provides that every corporation 
not organized in, or every association of persons not inhabitauts of, 
this Commonwealth, which does an express business, shall appoint an 
agent resident in Massachusetts, upon whom processes against such 
corporation or association may be served, as relates to incorporated 
express companies, is superseded by St. 1884, c. 330; the provisions 
regarding voluntary associations composed of inhabitants of other 
States are, however, still in force. 

Aug. 14, 1900. 
Hon. Edward S. Bradford, Treasurer of the Commonwealth. 

Dear Sir: — Your letter of July 16 requires the opinion of the 
Attorney-General upon the question whether Pub. Sts., c. 73, § 3, 
has been superseded by St. 1884, c. 330. 



94 ATTORNEY-GENEEAL'S REPORT. [Jan. 

The chapter of the Public Statutes referred to relates to common 
carriers and express companies. Sections 1 and 2 are intended to 
prohibit discriminations in the charges for express business. 
Section 3 is, in part, as follows: "Every corporation not 
organized in this Commonwealth and every association of persons 
not inhabitants thereof which does an express business in the 
Commonwealth shall, in writing, appoint a person who is a citizen 
thereof and a resident therein to be a general agent upon whom all 
lawful processes against such corporation or persons may be 
served with like effect as if served on said corporation or persons ; 
and said writing, or power of attorney, shall contain an agreement 
on the part of the corporation or persons making the same that 
the service of any lawful process against it or them on said general 
agent shall be of the same legal force and validity as such service 
on said corporation or persons, or any of them." The section 
further provides that the power of attorney shall be filed in the 
office of the Secretary of the Commonwealth, and that the agency 
thus created shall continue as long as such express business is 
done in this Commonwealth. 

Section 4 provides that the agent so appointed shall give a bond 
to the Treasurer of the Commonwealth, with the condition that he 
will accept service of all lawful processes against his principal. 
Section 5 imposes a penalty upon every person doing business as 
an agent of a foreign express company or association unless the 
provisions above referred to have been complied with. Section 
6 relates to other matters. 

At the time this statute was enacted, the only provision relating 
to service of process upon corporations generally was in Pub. Sts., 
c. 105, § 28, which provided that corporations created by any 
other State having property in this Commonwealth should be 
liable to be sued in like manner as residents of other States having 
property in the Commonwealth are liable to be sued. In addition 
to this general provision, there was a special provision relating to 
insurance corporations. Pub. Sts., c. 119, § 202. 

The first general law requiring all foreign corporations to 
appoint a domestic agent was St. 1884, c. 330. Section 1 is as 
follows: " Every corporation established under the laws of any 
other state or foreign country and hereafter having a usual place 
of business in this Commonwealth shall, before doing business in 
this Commonwealth, appoint in writing the commissioner of corpo- 
rations or his successor in office to be its true and lawful attorney 
upon whom all lawful processes in any action or proceeding against 
it may be served, and in such writing shall agree that any lawful 
process against it which is served on said attorney shall be of the 



1901.] PUBLIC DOCUMENT — No. 12. 95 

same legal force and validity as if served on the company, and 
that the authority shall continue in force so long as any liability 
remains outstanding against the company in this Commonwealth. 
A copy of the writing, duly certified and authenticated, shall be 
filed in the office of the said commissioner, and copies certified by 
him shall be deemed suflScient evidence thereof. Service upon 
such attorney shall be deemed sufficient service upon the principal." 
It will be seen that this section is similar in its provisions to Pub. 
Sts., c. 73, § 3, above quoted, excepting that the agent to be 
appointed by the foreign corporation must be the Insurance 
Commissioner, who, being a public officer, is not required to give 
bond as such agent. 

Of course no useful purpose can be subserved by requiring 
foreign express corporations to comply with both statutes, although 
I am informed that this has been done since the statute of 1884 in 
a number of cases. Under the general rules of construction 
applicable to such cases, the later law, being general in its terms 
and covering the whole field, repeals the prior special law. Under 
this rule, foreign corporations carrying on express business in this 
Commonwealth, so far as the appointment of agents is concerned, 
are now within the provisions of the statute of 1884, and are no 
longer required to appoint a private person as agent, under the 
provisions of Pub. Sts., c. 73, § 3. 

Inasmuch, however, as chapter 73 includes unincorporated 
associations not inhabitants of the Commonwealth, while the 
statute of 1884 refers only to the foreign corporations, the section 
of the Public Statutes cannot be regarded as wholly repealed by 
the statute of 1884 ; but, on the other hand, it is still in force so 
far as regards voluntary associations composed of inhabitants of 
other States. 

It follows that, in so far as Pub. Sts., c. 73, § 3, relates to 
foreign express companies, it is superseded by the statute of 1884. 
Although this construction of the two statutes is somewhat 
awkward, it is the only possible one which, consistently, can be 
adopted. It is to be observed that insurance companies, which, 
like express companies, had heretofore been governed by special 
provisions, are expressly exempted from the general provisions of 
the statute of 1884. This strengthens the conclusion that express 
companies were intended to be included in the general law. 
Very truly yours, 

HosEA M. Knowlton, Attorney -General. 



ATTORNEY-GENERAL'S REPORT. [Jan. 



Commissioners of Inland Fisheries — Great Ponds — Public Right 

of Fishing, 

Since great ponds are the property of the Commonwealth, and fishing in 
them is free to the public excepting when otherwise provided by the 
Legislature, a statute which limits the right of citizens to fish in great 
ponds is derogative of the rights of citizens generally, and is to be 
strictly construed. 

When a great pond has been stocked and the fishing therein regulated for 
a period "not exceeding three years," under St. 1897, c. 208, the Board 
of Commissioners of Inland Fisheries cannot, after the expiration of 
such term, again stock and regulate the fishing in such pond under the 
provisions of that statute. 

Aug. 21, 1900. 

J. W. Collins, Esq., Chairman^ Commissioners of Inland Fisheries. 

Dear Sir : — Great ponds, meaning by that term ponds of more 
than twenty acres in area, are in this State the property of the 
Commonwealth, and fishing in them is free to the public excepting 
when otherwise provided by the Legislature. A statute, therefore, 
which limits the right of citizens to fish in great ponds is to be 
strictly construed, being derogatory to the rights of citizens 
generally. 

By Pub. Sts., c. 91, § 12, the Commissioners of Inland Fish- 
eries were authorized to lease a great pond for the purpose of cul- 
tivating useful fisheries, for such time as they might see fit. This 
section, however, was repealed in 1885. St. 1885, c. 109. 

Section 17 of the same chapter (Pub. Sts., c. 91) authorized the 
commissioners to occupy, manage and control not exceeding six 
great ponds for the purpose of cultivating useful fisheries. This 
statute is still in force, and, taken in connection with the repeal 
of section 12, authorizing the leasing of great ponds, clearly indi- 
cates the intent of the Legislature, to limit the number of ponds, 
public rights in which may be indefinitely restricted, to six in 
number. 

St. 1897, c. 208, provides as follows : — 

Section 1. The commissioners of inland fisheries and game, upon 
petition of thirty or more inhabitants of a city or town, within whose 
limits a great pond or portion thereof is situated, or upon petition of the 
mayor and aldermen of such city or of the selectmen of such town, shall 
cause the waters of suclf pond to be stocked with such food fish, if any, 
as they may judge to be best suited to the waters in which the fish are 
to be placed. 

Section 2. Said commissioners shall thereupon prescribe, for a 
period not exceeding three years, such reasonable regulations relative 
to the fishing in such pond or ponds and their tributaries, with such 



1901.] PUBLIC DOCUMENT — No. 12. 97 

penalties, not exceeding twenty dollars for any one offence, as they may 
deem for the best interests of the public, and shall cause such regula- 
tions to be enforced. 

The question submitted in your letter of July 28 is whether, 
when a great pond has been stocked and the fishing therein regu- 
lated for a period '' not exceeding three years," under the statute 
last quoted, your Board may, after the expiration of such term, 
again stock and regulate the fishing in said pond under the provi- 
sions of said statute. 

Clearly not. If the law could be so construed, the power of the 
commission to diminish public rights in great ponds might be 
indefinitely extended, both as to time and as to number. Such a 
construction is not to be favored, and was evidently not intended 
by the Legislature. 

Yours very truly. 

Hose A M. Knowlton, Attorney -General. 



Secretary of the Commo7iivealth — Convention — Nomination of 
Candidates — Official Ballot. 

A convention cannot divest Itself of its duty to nominate candidates by 
delegating that duty to any person or committee, unless the action of 
such delegated person or committee is ratified by the convention itself. 
The Secretary of the Commonwealth cannot, therefore, place upon the 
official ballot the name of a candidate upon which the convention has 
not itself acted in some form. 

Sept. 1, 1900. 
Hon. William M. Olin, Secretary of the Commonwealth. 

Dear Sir : — Your inquiry of September 1 in substance is 
whether, in my opinion, a political convention may by a vote 
authorize its officers or a committee to nominate such candidates 
as it is authorized to nominate, instead of making delegate nomi- 
nations. I assume that the purpose of the inquiry is to enable 
you to determine whether you have a right to place upon the 
Australian ballot the name of a candidate nominated in the way 
suggested. 

There are many complex and precise provisions as to the con- 
duct of caucuses, but the Legislature has seen fit to leave political 
conventions unhampered by any specific rules. The only law 
applicable to them, therefore, is such as would be applicable to 
any deliberative assembly. 

Delegates to conventions are selected and commissioned to 
nominate candidates. They are unhampered as to their method of 
nominating candidates. They can do so by acclamation, by vote, 



98 ATTORNEY-GENERAL'S REPORT. [Jan. 

by the adoption of the recommendation of a committee, or by 
lot, even, if the result be adopted by the convention ; but the 
nomination, when made, must be the work of the convention, and 
not of a body delegated by them. This is the general rule appli- 
cable to all delegated authority. 

In my opinion, a convention cannot divest itself of its duty to 
nominate candidates by devolving that duty upon any other 
person or committee, unless the action of such delegated person 
or committee is ratified by the convention itself. I cannot advise 
you to receive the name of a candidate upon which the convention 
has not itself acted in some form. 
Yours very truly, 

HosEA M. Knovtlton, Attorney-General. 



Unpaid Taxes — Rate of Interest — Legislative Intent — Repeal. 

St. 1900, c. 398, repeals so much of Pub. Sts., c. 13, § 54, as fixes the rate 
of interest on unpaid taxes due the Commonwealth. 

Oct. 16, 1900. 
Charles W. Clifford, Esq., 

Of the Commission on Revision of Statutes. 

Dear Sir : — Whatever may have been the intent of the framers 
of St. 1900, c. 398, 1 am constrained to believe that the legislative 
intent deducible from this amendment must be taken to be the 
repeal of so much of Pub. Sts., c. 13, § 54, as fixes the rate of 
interest on unpaid taxes due the Commonwealth. 

The older statute provides that, upon suit brought by the 
Treasurer, he may recover the taxes " with interest at the rate of 
twelve per cent, per annum until the same are paid." St. 1900 
provides that all corporations neglecting to pay taxes shall pay 
** interest at the rate of six per cent, per annum on the amount so 
certified, from the time when such taxes become due until they 
are paid." 

These are obviously inconsistent provisions as to rate, and 
perhaps as to the duration of time during which interest runs. I 
cannot believe that it was the intention of the Legislature to 
impose a different rate of interest where suits are brought from 
those paid without suit. There is no such provision, so far as I 
know, in any other department of the law ; and there seems to be 
no good reason for supposing the Legislature so to have intended. 
Respectfully yours, 

Hosea M. Knovtlton, Attorney-Oeneral, 



1901.] PUBLIC DOCUMENT — No. 12. 99 



Petition for Appoiyitment of Supervisors for State Election — 
Time of Filing. 

A petition for the appointment of supervisors for the State election, 
received at the executive department at 5.05 p.m. on the twenty-first 
day before such election, was seasonably filed. 

It is not material that the petition was filed at an hour after the poll was 
closed. 

Oct. 17, 1900. 
To His Excellency W. Murray Crane, Governor. 

Dear Sir : — St. 1898, c. 548, § 182, provides that applications 
for the appointment of supervisors shall be made " at least twenty- 
one days before the election." Your letter of the 17th inst. states 
that the petition was received at the executive department at 5.05 
P.M., October 16, and requires the opinion of this office as to 
whether the petitioners have complied with the law. 

The petition was seasonably filed. It is well settled that the 
expression in the statute, " twenty-one days before the election," 
is to be construed as meaning the twenty-first day before election, 
which is October 16. Butler v. Fessenden^ 12 Gush. 78. Sundays 
are not excluded in the reckoning, when the time is more than a 
week. Thayer v. Felt, 4 Pick. 354. 

The fact that the petition was filed at an hour after the poll was 
closed is not of consequence, for the law does not reckon fractions 
of a day. Hannum v. Tourtellett, 10 Allen, 494. 
Very truly yours, 

HosEA M. Knowlton, Attorney- Geiieral. 



Insurance — Nature of Contract, 

An agreement by which a corporation, in consideration of a weekly pay- 
ment, undertakes to furnish medical attendance to the person with 
whom the contract was made, and to have filled and furnished pre- 
scriptions for medicine that may be prescribed by the physician, it 
being stipulated that the corporation furnishes the physician, is not a 
contract of insurance. 

Oct. 17, 1900. 

Frederick L. Cutting, Esq., Insurance Commissioner. 

Dear Sir : — The opinion of the Attorney-General is required 
by you upon the question whether the form of agreement submitted 
to me of the American Medical Protective Society, a New Jersey 
corporation, will, if executed in this Commonwealth, amount to a 
contract of insurance. 

The contract, a form of which is submitted, is in substance an 
agreement by which the corporation, in consideration of a weekly 



100 ATTORNEY-GENERAL'S REPORT. [Jan. 

payment, undertakes to furnish medical attendance to the person 
with whom the contract was made, and to have filled and furnished 
prescriptions for medicine that may be prescribed by the physician, 
it being stipulated that the corporation furnishes the physician. 
This is not a contract of insurance. 1 Op. Atty.-Gen., 545, 547. 
Very truly yours. 

Hose A M. Knowlton, Attorney- General. 



Pauper — Settlement — Military Service — United States Records. 

Where a pauper is enrolled upon the records of the United States as having 
been honorably discharged from the military service thereof, that fact 
is conclusive evidence of such discharge upon a question of settle- 
ment. 

Oct. 19, 1900. 
J. r. Lewis, M.D., Superintendent, State Adult Poor. 

Dear Sir: — Your letter of May 24, touching the question of 
the settlement of Frank Alonzo Sherman, who died at the Worces- 
ter Insane Hospital, was duly considered at the time, but, unfor- 
tunately, was mislaid. 

If I understand the facts, Sherman had probably been absent 
without leave from his post of duty, and had not returned to be 
mustered out ; thereupon he was at first taken to have been a 
deserter. 

Acting under the authority of chapter 390 of the Acts of the 
second session of the fiftieth Congress (U. S. Rev. Sts. at Large, 
Vol. 25, p. 869), the charge of desertion was removed by the Sec- 
retary of War, and he was enrolled upon the records of the United 
States as being honorably discharged. Similar proceedings took 
place in this Commonwealth ; but, in view of what I deem to be 
the law, I do not regard the Massachusetts proceedings as of 
consequence. 

If I understand the purport of the decision of the court in 
Fitcliburg v. Lunenburg., 102 Mass. 358, questions of fact as to 
discharge, desertion, absence from leave, etc., arising upon settle- 
ment cases between two municipalities, must be governed by the 
oflScial records of the military authorities of the United States. 
This case appears to come within the purview of that decision ; 
and, if it can be shown that the man in question appears upon the 
records of the United States as having been honorably discharged, 
that fact is conclusive upon the question of settlement. 
Very truly yours, 

HosEA M. Knowlton, Attorney- General. 



1901.] PUBLIC DOCUMENTING. 12. 101 



Pauper — Insane Person — Transfer to State Almshouse — Notice. 

Where an insane person, who has been duly committed to and is a legal 
inmate of an insane hospital, is transferred by the State Board of 
Charity, by authority of St. 1888, c. 69, to the insane ward of the State 
Almshouse, notice of such transfer to the town liable for his support 
is not required. 

Nor is the father of such person pauperized by his detention in the State 
Almshouse, his status being that of an insane person and not that of a 
pauper. 

Nov. 10, 1900. 
J. F. Lewis, M.D , Superintendent, State Adult Poor. 

Dear Sir: — Your letter of October 18 requires the opinion of 
the Attorney-General upon the question whether the town of 
Royalston is liable for the support of Simeon Quigley, an inmate 
of the insane ward of the State Almshouse at Tewksbury. Quigley 
has been an imbecile from childhood, and never acquired a settle- 
ment except through his father. The town of Royalston concedes 
that the father, by reason of residence and payment of taxes, 
became settled in that town, but disputes liability, for two 
reasons : — 

1. That no notice was sent to the town, in accordance with the 
provisions of Pub. Sts., c. S^^ § 35. 

2. That, inasmuch as Quigley has become an inmate of the 
almshouse, the father is pauperized by his presence there, and 
does not benefit by the provisions of Pub. Sts., c. 83, § 3. 

Pub. Sts., c. 86, § 35, provides as follows: "If a pauper 
having a legal settlement in any place becomes an inmate of the 
almshouse, such place shall be liable to the Commonwealth for 
the expense incurred for him, in like manner as one town is liable 
to another in like cases ; and the trustees and the state board 
shall adopt the same measures in regard to notifying towns so 
liable, the removal of the pauper, and the recovery from towns of 
expenses incurred for him, as are prescribed for towns in like 
cases." 

This section is intended to apply to the ordinary case of a sane 
person becoming, by reason of poverty, a pauper charge and 
admitted to the State Almshouse, and is intended to give season- 
able notice to the town liable for his support, to the end that the 
town may take such measures for the support of the pauper as it ' 
deems proper, including his removal from the almshouse, if it so 
desires. 

In my opinion, however, it has no application to the case of an 
insane person, who, having been duly committed to an insane 
hospital by proper proceedings therefor, and being a lawful inmate 



102 ATTOENEY-GENERAL'S REPOE^T. [Jan. 

of such insane hospital, is transferred by the State Board of 
Charity to the insane ward of the almshouse. He does not thereby 
become the less a ward of the State, and notice would be of no 
benefit to the town, for it could take no measures for his removal 
or support outside the almshouse. The insane person is trans- 
ferred to the insane ward of the almshouse, not as a pauper, but 
because the public interest requires such a transfer. St. 1888, 
c. 69. Notwithstanding such removal, he is still in the class of 
insane persons rather than that of paupers, and the laws applicable 
to insane persons still regulate his status in the insane ward of the 
almshouse. 

The same considerations dispose of the second objection of the 
town. Pub. Sts., c. 83, § 3, relied upon by the town, provides 
" that no person who actually supports himself and a family shall 
be deemed to be a pauper by reason of the commitment of his 
wife, child, or other relative to a lunatic hospital or other institu- 
tion of charity, reform, or correction by order of a court or 
magistrate, and of his inability to maintain such wife, child, or 
relative therein ; but nothing herein contained shall be construed 
to release him from liability for such maintenance." 

Quigley's son is still in a ward of an insane hospital, and is 
detained there as an insane person, not as a pauper. 
Yours very truly, 

HosEA M. Knowlton, Attorney -General. 



Corporation — Election of Officers — By-Laws — Attorney. 

The election of the officers of a corporation is a corporate function, which 
cannot be delegated without express statutory authority. 

The statutes do not contain such authority, but, on the contrary, by clear 
intendment require that such officers shall be elected by the members 
of the corporation; and a by-law which delegates to the board of 
directors of a co-operative bank the election or selection of the secre- 
tary, treasurer or other officers of the bank is therefore illegal. 

An attorney is not an officer of the corporation, and cannot be made one 
by the by-laws. 

Nov. 10, 1900. 

Starkes Whiton, Esq., Chairman, Board Savings Banks Commission. 

Dear Sir: — Your letter of October 13 requires the opinion of 
the Attorney-General upon the question whether "it is legal for 
the shareholders of a co-operative bank to incorporate in its by- 
laws one that delegates to its board of directors the selection or 
election of a secretary, treasurer or other officer of the bank." 

The election of officers is a corporate function, and one that 
cannot be delegated, except by express statutory authority. I 
find no such authority. On the contrary, the statutes by clear 



1901.] PUBLIC DOCUMENT — No. 12. 103 

indication require that the officers of a corporation shall be elected 
by the members of the corporation. 

Pub. Sts., c. 117, § 6, provides that "The number, title, duties, 
and compensation of the officers of the corporation, their terms of 
office, the time of their election, as well as the qualification of 
electors, and the time of each periodical meeting of the officers 
and members, shall be determined by the by-laws ; but no member 
shall be entitled to more than one vote at any election. All officers 
shall continue in office until their successors are duly elected, and 
no corporation shall expire from neglect on its part to elect officers 
at the time prescribed by the by-laws." 

There is nothing in this section which can be construed to 
authorize the delegation by the corporation to its directors of the 
corporate duty of electing its officers. On the contrary, the last 
sentence appears to recognize that they are to be elected by the 
corporation, in providing that "no corporation shall expire from 
neglect on its part to elect officers." 

Moreover, Pub. Sts., c. 105, § 1, extends the provisions of that 
chapter to all corporations organized under the laws of the Com- 
monwealth, excepting so far as they are inconsistent with special 
provisions. Section 4 of that chapter provides that " every cor- 
poration, where no other provision is specially made, shall . . . 
elect, in such manner as it may determine, all necessary officers." 
Section 5 contains further provisions relating to the manner of 
calling and conducting meetings of the corporation, the number of 
members that shall constitute a quorum, the number of shares that 
shall entitle members to votes, and other like provisions relating 
to corporate action. This section plainly contemplates that offi- 
cers of a corporation shall be elected by the corporation itself. 

Whether those who are called officers of the corporation are in 
fact such, or are merely agents, may be a more difficult question, 
but as to the so-called officers, referred to in your inquiry, there is 
no difficulty. The secretary and treasurer are expressly recognized 
by the statutes as corporate officers, for it is provided in St. 1885, 
c. 121, § 1, that these offices may be held by one and the same 
person. See also St. 1898, c. 247, § 1. The secretary and treas- 
urer are, therefore, clearly officers of the corporation. 

On the other hand, an attorney is not necessarily an officer of 
the corporation, and is not made such an officer by providing in 
the by-laws that he shall be. 

In general, it may be said that the officers of a corporation are 
such officers as are necessary to the carrying on of its corporate 
existence. This definition does not include an attorney'. 
Very truly yours, 

HosEA M. Knowlton, Attorney-General. 



104 ATTORNEY-GENERAL'S REPORT. [Jan, 



Citizenship — Student. 

A student at an institution of learning in this Commonwealth may, if he is 
of age, and free to choose, become a citizen of the town in which such 
institution is located. 

Nov. 27, 1900. 
To His Excellency W. Murray Crane, Oovernor. 

Dear Sir : — Replying to your inquiry with reference to the 
right of a student in the Massachusetts Agricultural College to 
become a citizen of Massachusetts, I have to say as follows : — 

Citizenship is a question of fact, to be determined upon all the 
circumstances, including, as an important factor, the intention of 
the person in question. Ordinarily, a student at an institution of 
learning does not by mere attendance at such institution become a 
citizen of the town in which the institution is located ; but if he is 
of age, and free to choose, there is nothing to prevent him from 
becoming such a citizen. The necessary steps are such as any 
person coming from another jurisdiction is required to take in 
order to acquire domicile in this State. 
Yours very truly, 

HosEA M. Knowlton, Attorney-General. 



Great Ponds — Public Rights — Harbor and Land Commissioners 
— Approval of Structures. 

A statute which gives to a town the exclusive and unlimited right to use 
the waters of a great pond as a source of water supply, does not 
further diminish the rights of the public in such pond. 

The public is, therefore, still interested in the pond, and, since the purpose 
of requiring the approval of the Board of Harbor and Land Com- 
missioners for structures upon and changes in great ponds is the 
protection of public rights therein, it follows that the town must sub- 
mit to the Board, for its approval, plans contemplating work of that 
nature. 

Nov. 27, 1900. 
Woodward Emery, Esq., Chairman, 

Board of Harbor and Land Commissioners. 

Dear Sir : — Your letter of August 3 states that the town of 
Lincoln desires to make certain changes in the arrangement of its 
pumping station on the shores of Sandy Pond in Lincoln, and 
to straighten and otherwise improve the shore line ; and requires 
the opinion of the Attorney-General whether the approval of your 
Board is necessary therefor. 

By St. 1888, c. 318, great ponds were put under the control of 
the Harbor and Land Commissioners ; and it was provided in 



1901.] PUBLIC DOCUMENT — No. 12. 105 

section 2 that " except as authorized by the general court and 
provided in this act, no structure shall hereafter be built or 
extended, or piles driven, or land filled, or other obstruction or 
encroachment made, in, over or upon the waters of the same." 

Section 3 further provides as follows: "All persons that are 
or may be authorized by the general court to build or extend any 
structure or do any other work aforesaid, and who have not begun 
the same, shall, before beginning it, give written notice and submit 
plans of the work they intend to do to the board of harbor and 
land commissioners ; and the provisions of section eight of chapter 
nineteen of the Public Statutes shall apply to all such works and 
to the plans therefor, and to the approval thereof by said board." 

The statute under which the town of Lincoln is authorized to 
erect structures upon and make changes in the shore of Sandy 
Pond was enacted in 1872, many years before the statute above 
quoted giving jurisdiction to your Board over great ponds ; but it 
is to be observed that the provisions of section 3 of the great pond 
act, above quoted, include not only structures to be hereafter 
authorized by the General Court, but also those which had been 
authorized by some provision of the Legislature before the enact- 
ment of the statute. This is clearly within the power of the 
Legislature. The statute of 1872, in giving to the town the power 
to take land and water rights for a public use, did not give it an 
absolute right the exercise of which the Legislature could not 
afterwards supervise. Nor is the statute of 1872 a contract with 
the town. The statute of 1888, therefore, does not take any 
property right from the town or impair the obligation of a con- 
tract. The town of Lincoln must, therefore, submit its plans to 
your Board for approval, unless there is some provision of the 
statute which exempts it therefrom. 

This act of 1872, c. 188, relating to Sandy Pond, provides, in 
section 2, as follows : " Said town, for the purposes aforesaid, 
may take and hold the waters of Sandy pond, so called, in the 
town of Lincoln, and the waters which flow into and from the 
same, and may also take and hold, by purchase or otherwise, all 
necessary lands for raising, flowing, holding, diverting, conducting, 
purifying and preserving such waters, and may erect thereon 
proper dams, reservoirs, buildings, fixtures and other structures, 
and make excavations and embankments, and procure and run 
machinery therefor." 

This section gives to the town the exclusive and unlimited right 
to use the waters of Sandy Pond for the purposes of a water 
supply, but it does not otherwise take away the rights of the public 
in the pond. It still remains a public pond, open to the public for 



106 ATTORNEY-GENERAL'S REPORT. [Jan. 

all purposes for which it may lawfully use the great ponds of the 
Commonwealth, subject only to the right of the town to draw off 
the water for the purposes of a water supply. 'Bockport v. Web- 
ster-, 174 Mass. 385. 

The public, therefore, is still interested in the pond ; and the 
purpose of requiring the approval of your Board for structures 
upon and changes in great ponds is the protection of the public 
rights in such ponds. The case does not differ from that presented 
by the statute authorizing the construction of the terminal station 
over tide water, in which I advised your Board that all plans 
therefor must be approved by the Board. 1 Op. Atty.-Gen., 480. 

I am of opinion, therefore, that the approval of the Board is 
necessary for the work proposed by the town of Lincoln. 
Very truly yours, 

HosEA M. Knowlton, Attorney-General. 



Towns — Streets — Commonwealth's Land. 

A town has no authority to lay out a street over land held in fee by the 
Commonwealth, without the consent of the Legislature. 

Nov. 27, 1900. 
His Excellency W. Murray Crane, Governor. 

Dear Sir : — It is not entirely certain whether a town may take 
land held by the Commonwealth in fee, for the purpose of con- 
structing or widening a street. My opinion is strongly against it. 

I do not forget that Pub. Sts., c. 54, § 15, contains an express 
prohibition against the taking by a town of land of a public insti- 
tution belonging to the Commonwealth. It might be inferred from 
this prohibition that the Legislature at least were of opinion that, 
but for such a prohibition, such land could be taken. It is well 
known, however, that statutes are frequently declaratory of the 
common law, and may be so construed, instead of being regarded 
as exceptions thereto. 

St. 1900, c. 382, relating to the State House park, provides 
that the Governor and Council may " waive any or all grade dam- 
ages or claims for land taken for improvement of streets." This, 
too, would appear to recognize the right of the city to widen a 
street by taking land of the park, by authorizing the Governor 
and Council to waive land damages therefor. 

But, notwithstanding this indirect authorization, I am still of the 
opinion that a street may not be laid out over land owned by the 
Commonwealth and used by it for public purposes, without the 
consent of the Legislature. If this be so, and it is desired to 



1901.] PUBLIC DOCUMENT — No. 12. 107 

widen Bowdoin Street, I think, in order to remove all doubt, the 
Legislature should be asked to pass a resolve authorizing such 
action by the city of Boston. 

Very truly yours, 

HosEA M. Knowlton, Attorney -General. 



State Highway Commission — Alteration of Location of Tracks of 
Street Railway in Highway — Changes in Grade — Apportion- 
ment of Expense. 

The State Highway Commission, in altering tlie location of the tracks of 
a street railway located on a State highway, under St. 1898, c. 578, 
§ 16, has authority to order changes in grade as well as in horizontal 
position. 

The commission may also assess upon the railway such portion of the 
expense of the relocation as it deems proper. 

Nov. 27, 1900. 

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

Dear Sir: — Your letter of October 12 requires the opinion of 
the Attorney-General upon the question whether the Massachusetts 
Highway Commission has the right " to order changes in grade as 
well as in the horizontal position of the tracks of a street railway 
company on the State highway under section 16 of chapter 578, 
Acts of 1898 ; " and also if it has the right to insert in its decrees 
a provision that the railway companies shall pay the damages 
occasioned to abutting property by the relocation of its tracks. 

St. 1898, c. 578, § 24, provides that the Massachusetts Highway 
Commission shall in certain cases have the same jurisdiction with 
regard to the location and maintenance of street railways as is con- 
ferred upon municipal officers with regard to ordinary town ways. 

The authority of town and city officers is contained in section 16 
in the same act, which is as follows : '' The board of aldermen of 
a city or the selectmen of a town, upon the petition of the direc- 
tors of a street railway company ... or upon the petition of 
any interested party, . . . may alter the location of tracks of 
said company in the manner and subject to the provisions con- 
tained in section fifteen of this act. Such alterations shall be 
made by the company within such time, and the expense thereof 
shall be borne by such party or parties, and in such proportions as 
the board of aldermen or selectmen may determine." 

The word " location," as used in the section above quoted, 
doubtless includes grade as well as position. If the authorities 
had no control over the grade, the consequences might be disastrous. 

The statute quoted expressly provides that " the expense thereof 
shall be borne by such party or parties and in such proportions as 



108 ATTORNEY-GENERAL'S REPORT. [Jan. 

the board of aldermen or selectmen shall determine." This clearly 
gives your Board the right to apportion such part of the expense 
as it deems proper upon the railroad company whenever it orders 
a change in location. 

Yours truly, 

HosEA M. Knowlton, Attorney- General. 



Harbor and Land Commissioners — Assignment of Lease — Cove- 
nants. 

When a lease is assigned and the assignee enters under it, he becomes 

tenant of the lessor and is bound by all the covenants of the lease 

which are not personal to the lessee. 
When, therefore, a lessee of the Harbor and Land Commissioners assigns 

his lease, an agreement to perform the covenants of the lease by the 

assignee is unnecessary. 

Nov. 27, 1900. 
Woodward Emery, Esq., Chairman, 

Board of Harbor and Land Commissioners. 

Dear Sir: — Your letter of November 26 states that a lessee 
from your Board of certain lands in the city of Boston desires to 
assign his lease to a third person ; that your Board is ready to 
approve the assignment, but desires to know whether *'it would 
not be wise to have an acceptance of the assignment and an 
agreement to perform the covenants of the lease over the signature 
of the assignee." 

No such agreement by the assignee is necessary. When a lease 
is assigned and the assignee enters under it, he becomes tenant of 
the lessor. He is bound by all the covenants of the lease which 
are not personal to the lessee. Wells, J"., in Sanders v. Partridge, 
108 Mass. 556 ; Breiuer v. Dyer, 7 Cush. 337. 
Very truly yours, 

HosEA M. Knowlton, Attorney- General. 



Bounty — Enlistment to satisfy Specific Order of Commander-in- 
Chief. 
A vote of a city council, promising a bounty " to such persons, residents 
of the city, as may hereafter enlist as volunteers ... in accordance 
with the order of the Commander-in-Chief," includes such persons 
only as enlisted in accordance with a specific order of the Com- 
mander-in-Chief. 

Nov. 30, 1900. 
Hon. William M. Olin, Secretary of the Commonwealth. 

Dear Sir: — Your letter of May 14, written in behalf of the 
commission appointed to act upon claims for unpaid bounties, 
requires the opinion of this office upon the question whether 



1901.] PUBLIC DOCUMENT — No. 12. 109 

William H. Carney, formerly of Company C, Fifty-fourth Massa- 
chusetts Volunteers, a claimant for unpaid bounty said to have 
been promised by the city of New Bedford, is entitled to have his 
claim certified by your commission. 

The applicant enlisted in New Bedford, Feb 17, 1863, being at 
that time a citizen of that city. He claims a bounty under the 
provisions of a vote of the city council of New Bedford, passed 
Aug. 18, 1862, which was as follows : — 

Ordered, That the sum of one hundred and fifty dollars be and the 
same is hereby appropriated (in addition to the bounty heretofore 
appropriated by the city council), to be paid such persons, residents of 
New Bedford, as may hereafter enlist as volunteers to be mustered into 
the service of the United States for the term of three years, or until the 
close of the war, in accordance with the order of the Commander-in-Chief. 

The precise question presented is, whether the order above 
quoted includes all persons who enlisted subsequent to that date, 
or only such as enlisted and were mustered in in accordance with 
some specific "order of the Commander-in-Chief." I have given 
the matter some attention, both for the reason that the case of the 
claimant is a strong one in equity, and also for the reason that, as 
I am informed, a number of other claims rest upon the same facts, 
and must be governed by your decision in this case. 

I regret to be obliged to say that in my opinion this claimant 
does not bring himself within the terms of the statute under which 
your commission acts. That statute provides (St. 1898, c. 525, 
§ 1) for the allowance of claims made by veterans who were 
** promised a bounty for military or naval service by a vote of any 
city or town in this Commonwealth prior to the ninth day of 
April, 1865." The records are somewhat confused as to details, 
but the}^ establish clearly the fact that the whole quota of New 
Bedford called for by the Commander-in-Chief was filled on or 
before Nov. 24, 1862, at which time the city had paid bounties in 
accordance with its votes to 1,041 men, that being the amount of 
the quota fixed by the Commander-in-Chief by his order dated 
Oct. 1, 1862. 

The particular vote of August 18 above quoted, upon which 
this claimant relies, appears to have been passed in consequence 
of a special order of the Commander-in-Chief, dated August 16, 
authorizing the mayor to raise a three-years company on or before 
Thursday, August 21. This call was complied with, and the 
number .of men so required were duly enlisted before the date 
named, and received the bounty promised. This enlistment and 
payment of bounty seems to have exhausted the obligations of the 
city under that order. 



110 ATTORNEY-GENERAL'S REPORT. [Jan. 

But, whether this was so or not, the fact remains that at the 
time of the enlistment of this claimant, in February, 1863, there 
was no unfilled call from the Commander-in-Chief. Inasmuch as 
the order above quoted, and all the orders to which my attention 
has been called, are limited in terms to such volunteers as were 
enlisted in accordance with " the order of the Commander-in- 
Chief," I am constrained to find that no bounty was promised him 
by any vote of the city of New Bedford for his enlistment. 

As I have already stated, however, the claim seems to be a 
meritorious one, which you may properly recommend to the Gen- 
eral Court for recognition by special legislation. 
Yours very truly, 

HosEA M. Knovtlton, Attorney- General. 



Educational Institution — Petition for Authority to grant Degrees — 
Secretary of State Board of Education. 

The secretary of the State Board of Education is not under St. 1896, c. 
381, required to take any action upon a petition to the Legislature for 
authority to grant degrees in engineering, presented by a corporation 
chartered under the laws of the State of Maine. 

Dec. 5, 1900. 
Frank A. Hill, Esq., Secretary, Slate Board of Education. 

Dear Sir: — Your letter of November 13 requires the opinion 
of the Attorney-General as to whether the secretary of the State 
Board of Education is required to take any action upon the petition of 
the Boston Engineering School to the Legislature of Massachusetts. 
St. 1896, c. 381, provides that whoever intends to present to 
the General Court a petition for the incorporation of an educa- 
tional institution with power to grant degrees, or for an amend- 
ment to the charter of an existing educational institution, so that 
it may have power to grant degrees, shall give notice of such 
petition by publication in such newspapers as the secretary of the 
State Board of Education may direct. 

The petition is for authority to grant degrees in engineering. 
The school in question is chartered by the State of Maine, and has 
no charter in Massachusetts. The petition, therefore, is not for 
incorporation, nor is it a petition for an amendment to a charter, 
for that part of the statute providing for amendments of a charter 
obviously refers only to corporations incorporated within this 
Commonwealth. 

It follows that no action is required by you under the statutes. 
Very truly yours, 

HosEA M. Knowlton, Attorney-General. 



1901.] PUBLIC DOCUMENT — No, 12. Ill 

Town — Use of Great Pond as Source of Water Supply — Public 
Bights — Fishing. 

A statute authorizing a town to take and hold the waters of a great pond 
for the purposes of a water supply, does not take away any public 
rights therein except so far as they are necessarily lost in the exer- 
cise of the right conferred upon the town to use the waters of the 
pond as a source of water supply. 

It follows that the town has no right to obstruct the passage of fish to and 
from such pond, unless its waters are thereby rendered unsuitable for 
drinking purposes. 

Dec. 6, 1900. 

Joseph W. Collins, Esq., Chairman^ Commission of Inland Fisheries. 

Dear Sir : — Your letter of July 28 states that a conflict of 
jurisdiction has arisen between the water commissioners of Rock- 
port and your Board as to the right of your Board to maintain 
fishways for the entrance of ale wives into Cape Pond. 

St. 1894, c. 7-8, authorized the town of Rockport to take and 
hold the waters of Cape Pond, so called, and the water rights and 
water sources connected therewith, and all lands, rights of way and 
easements necessary for holding and preserving such water and for 
conveying the same to any part of the town of Rockport. 

Acting under this statute, the town took Cape Pond, and now 
holds it. I understand from your letter that the pond is and 
for time immemorial has been a pond resorted to by alewives dur- 
ing the spawning season, which enter through a stream called 
Alewife Brook. 

Your letter further states that recently the source of the brook 
has been obstructed by a wire screen, which prevents alewives 
from entering the pond during their spring migration from the sea, 
the result being the destruction of the fishery in the brook and in 
the pond. The obstruction was placed by officers of the town. 

It is well settled that the statute authorizing the town to take 
Cape Pond does not take away any public rights in said pond, 
excepting so far as they are necessarily lost in the exercise of the 
right conferred upon the town to use the waters of the pond as 
a source of water supply. The right of fishing remains unim- 
paired, as well as all other public rights, subject to the limitations 
I have stated. Rockport v. Webster^ 174 Mass. 385. 

It follows that the town has no right to obstruct the passage of 
fish, unless it can show that the waters of the pond are thereby 
rendered unsuitable for drinking purposes. The burden of show- 
ing this fact is upon the town, and, in the absence of any proof to 
that efifect, the passage of fish into the pond may not lawfully be 
obstructed. 



112 ATTORNEY-GENERAL'S REPORT. [Jan. 

Inasmuch as the rights of all parties are derived from the Gen- 
eral Court, I beg to suggest that, if it is found impossible to obtain 
an amicable adjustment of the question, the Legislature should be 
called upon to take such action as may be deemed necessary to 
secure the rights of the public, as well as the rights of the town. 
Very truly yours, 

Hose A M. Knowlton, Attorney-General. 



Massachusetts School Fund — Payment for Benefit of Teachers, 

It was not the inteution of the Legislature that the payment for the benefit 
of teachers, provided for in St. 1896, c. 408, should be deducted from 
the half of the school fund set apart by St. 1891, c. 177, for the sup- 
port of the public schools. 

The amount required to carry out the purposes of the statute of 1896 is 
clearly included within the class of expenditures for " other educa- 
tional purposes," to which the other half of such fund is appropriated. 

Dec. 28, 1900. 
Hon. John W. Kimball, Auditor. 

Dear Sir : — The division and appropriation of the Massachu- 
setts school fund was regulated by St. 1891, c. 177. This statute 
provided that " One half of the annual income of the school fund 
of the Commonwealth shall be apportioned and distributed [among 
the small towns of the Commonwealth] without a specific appropria- 
tion for the support of the public schools." After specifying in 
detail the proportions to be paid to the several towns of the 
Commonwealth, the section thereupon provides that ''AH money 
appropriated for other educational purposes, unless otherwise 
specially provided, shall be paid from the other half of said 
income. If the income in any year exceeds such appropriations, 
the surplus shall be added to the principal of said fund." 

Various statutes make appropriations for educational purposes 
from the other half of the income. Among them are the salary of 
the secretary, the support of normal schools, teachers' institutes, 
county teachers' associations, and the Massachusetts Teachers' 
Association. 

St. 1896, c. 408, is as follows: "With the approval of the 
state board of education there may be paid from the income of the 
school fund, to any town having a valuation of less than two 
hundred and fifty thousand dollars, a sum not exceeding two 
dollars per week for the actual time of service of each teacher, 
approved by the school committee of said town after special 
examination as to exceptional ability, employed in the public 
schools of said town, which sum shall be added to the salary of 



1901.] PUBLIC DOCUMENT — No. 12. 113 

each teacher." Although in terms the payment authorized by this 
statute is made to the towns of the Commonwealth, it is in fact for 
the benefit of public school teachers as rewards for meritorious 
service, and does not benefit the tax payers of the town. The 
half of the school fund, on the other hand, appropriated by the stat- 
ute of 1891 to small towns, goes to the treasury of such towns, 
and is intended to assist them in maintaining their schools. 

The question submitted by your letter of the 12th inst. is 
whether the payment for the benefit of teachers, provided for by 
the statute of 1896, is to be deducted from the whole fund before 
division ; and, if not, whether it is to be paid from the half to be 
" distributed without specific appropriation for the support of 
public schools," or whether it shall be paid from the other half of 
the income " appropriated for other educational purposes." 

I see no reason to doubt that it was the intention of the Legis- 
lature, in enacting the statute of 1891, to give to small towns 
one-half of the gross income of the school fund, leaving it to 
future Legislatures to provide, from time to time, for the expendi- 
ture of the remaining half for educational purposes, other than the 
support of the public schools. The amount required to carry out 
the purposes of the statute of 1896 should not, therefore, be 
deducted, in whole or in part, from the half of the school fund set 
apart for the support of public schools. It is clearly included in 
the class of expenditures for "other educational purposes" to 
which the other half is to be appropriated. The inducement to 
good work, held out to teachers by the terms of the statute, is an 
educational purpose, quite distinct from the mere support of public 
schools. 

Very truly yours, 

HosEA M. Knowlton, Attorney- Genei-al. 



Massachusetts Highivay Commission — Public Shade Trees — Tree 

Wardens. 

Tree wardens, elected in accordance with St. 1899, c. 330, may not inter- 
fere with or overrule the authority of the Massachusetts Highway 
Commission, but, subject to such authority, their duty of police 
jurisdiction over shade trees in State highways is the same as that 
with relation to other public shade trees in towns. 

Jan. 5, 1901. 
A. B. Fletcher, Esq., Secretary, Massachusetts Highivay Commissioii. 
Dear Sir: — Your letter of November 30 requires the opinion 
of the Attorney-General upon the question whether the Massachu- 
setts Highway Commission have control over trees located on the 



114 ATTORNEY-GENERAL'S REPORT. [Jan. 

State highways. I assume that the question refers principally to 
shade trees, for there can be no question of your exclusive juris- 
diction over other trees. 

St. 1899, c. 330, is an act to codify and amend the laws relative 
to the preservation of trees. This act provides for the election, 
in every town, of a tree warden. His duties are thus defined : 
" He shall have the care and control of all public shade trees 
in the town. He shall expend all funds appropriated for the 
setting out and maintenance of such trees. He may prescribe 
such regulations for the care and preservation of such trees, 
enforced by suitable fines and forfeitures, ... as he may deem 
just and expedient. ... It shall be his duty to enforce all 
provisions of law for the preservation of such trees." 

Another section makes it the duty of the tree warden to plant 
shade trees in the public ways when money therefor has been ap- 
propriated by the town. Section 3 forbids the cutting or removal 
of a shade tree, excepting after notice and a hearing. 

This act is general in its terms, and applies to all public shade 
trees. I am of the opinion that it includes shade trees upon State 
highways, and that tree wardens have jurisdiction over such trees, 
excepting so far as the statutes defining the duties of the Highway 
Commission are inconsistent therewith. 

The authority of the commission over trees located on State 
highways is set forth in the following acts and parts of acts : — 

St. 1893, c. 476, § 14, provides that no trees shall be planted or 
removed upon the State highway '* except by the written consent 
of the superintendent of streets or by the road commissioners of a 
city or town approved by the highway commission, and then only 
in accordance with the rules and regulations of said commission." 

St. 1894, c. 497, § 7, is as follows: "Said commission shall 
keep all state roads reasonably clear of brush, and shall cause 
suitable shade trees to be set along said highways when possible, 
and shall renew the same when necessary." 

These provisions, relating to the authority and duties of the 
Highway Commission, are not repealed by the tree warden act 
above referred to. On the other hand, they do not operate to take 
away all jurisdiction of the tree warden in State highways. He 
may not interfere with or overrule the authority of the Massachu- 
setts Highway Commission, but, subject to their rights, his duty 
of police jurisdiction over shade trees in State highways is the 
same as that with relation to other public shade trees in the town. 
Very truly yours, 

HosEA M. Knowlton, Attorney-General. 



1901.] PUBLIC DOCUMENT — No. 12. 115 



State Officers — Presidential Electors — Oath of Office. 

Since the duty of presidential electors is to the State, their function being 
to cast the vote of the State in its behalf and as its agents, they are 
State officers, and must take and subscribe the oaths required thereof 
by the Constitution. 

The provisions of the Constitution of the United States relating to such 
electors merely establish a method by which the States may exercise 
their right of voting in proportion to their population. 

Jan. 9, 1901. 
Hon. William M. Olin, Secretary of the Commonwealth. 

Dear Sir : — I am informed that the opinion of the Attorney- 
General is requested upon the question whether presidential electors 
should take and subscribe the oaths required by the Constitution 
of Massachusetts, c. 6, Art. 1, as amended by Art. 6 of the 
Amendments. These articles provide, in substance, that the oaths 
as set forth therein " shall be taken and subscribed by every per- 
son chosen or appointed to any office, civil or military, under the 
government of this Commonwealth, before he shall enter on the 
duties of his office." The precise question, therefore, is, whether 
presidential electors are officers under the government of this Com- 
monwealth within the meaning of the language quoted. 

The office of presidential elector is created by the Constitution 
of the United States, which provides, in Art. 2, § 1, as follows: 
''Each state shall appoint, in such manner as the legislature 
thereof may direct, a number of electors, equal to the whole num- 
ber of senators and representatives to which the state may be 
entitled in the congress." 

Under the authority of this article, the State of Massachusetts 
has by legislative enactment (Pub. Sts., c. 9, §§ 9-18) provided 
that electors shall be chosen by the people of the Commonwealth 
at the time of the annual election in November. It by no means 
follows, however, that, because they are chosen by the people of 
the Commonwealth under the provisions of a State statute, they 
are State officers. Representatives to the Congress of the United 
States are also so chosen ; but it would scarcely be contended that 
the latter are State officers, or that they are required to take the 
oaths prescribed by the Constitution of Massachusetts for such 
officers. On the other hand, it does not necessarily follow that, 
because the authority for the choice of presidential electors is 
found in the Constitution of the United States, they are, therefore, 
Federal officers. 

I apprehend that the true criterion is this : Do they perform a 
State or a Federal duty? An examination of the provisions of 
the Constitution of the United States, relating to the election of 
President and Vice-President, makes it plain that it was the intent 



116 ATTORNEY-GENERAL'S REPORT. [Jan. 

of the framers of that instrument that the President and Vice- 
President should be elected by the States of the Union, rather 
than by a national popular vote. It is not necessary, even, that 
there be a popular vote in each State, for, as is well known, 
electors, in one State at least, were for many years chosen by its 
Legislature. 

The provisions relating to presidential electors merely establish 
a method by which the States in proportion to their population 
shall exercise their right of voting. The function of the electors 
is to cast the vote of the State in its behalf and as its agents. 
Their duty is to the State, and is performed for the State. The 
only duty they owe to the Federal government is to report the re- 
sult of their action to the Congress of the United States. They 
are, therefore. State officers. 

Other provisions of the Constitution confirm this view. The ar- 
ticle above quoted provides that electors shall not '' hold any 
office of trust or profit under the United States." If the framers 
of the Constitution had regarded electors as Federal officers, the 
language undoubtedly would have been "shall hold no other 
office," etc. There is no other provision relating to the qualifica- 
tions of electors. Futhermore, there is no provision in the Con- 
stitution for payment for their services from the treasury of the 
United States, nor is there any reservation of any right by Con- 
gress to control the manner of their election. The only right re- 
served to Congress in that respect is to determine the time of 
choosing the electors and the day on which they shall give their 
votes. U. S. Const., Art. 2, § 1. 

On the other hand, representatives to Congress must be chosen 
" by the people of the several states " (Art. 1, § 2), and at such 
time and in such place and manner as may " be prescribed in 
each state by the legislature thereof" (Art. 1, § 4) ; but the latter 
article further provides that Congress may at any time by law 
make or alter such regulations. The qualifications of representa- 
tives are fixed by the Constitution, and section 6 of Article 1 pro- 
vides that they shall receive compensation for their services, to be 
ascertained by law and paid out of the treasury of the United 
States. 

For these reasons I am of the opinion that presidential electors 
are within the description of those officers who are required under 
the Constitution of Massachusetts to take and subscribe the oaths 
therein specified.^ 

Very truly yours, 

HosEA M. Knowlton, Attorney- General, 

1 But see State v. Bowen, 8 So. Car. 490. 



1901.] PUBLIC DOCUMENT — No. 12. 117 



Public Boxing Matches. 

St. 1896, c. 422, provides penalties against two classes of offenders : first, 
those who engage in public boxing matches of all kinds; and, second, 
those who engage in professional boxing in public or private. 

In the construction of statutes a limiting clause is to be restrained to the 
last antecedent, unless the subject matter requires a different construc- 
tion. 

Jan. 9, 1901. 
Hon. W. S. Peters, District Attorney, Eastern District. 

Dear Sir : — Replying to your oral inquiry of this morning, I 
beg to say that in my opinion St. 1896, c. 422, provides penalties 
against two classes of offenders, to wit (using the language of the 
statute) : first, "whoever engages in or gives or promotes a public 
boxing match or sparring exhibition," and, second, whoever, "en- 
gages in a private boxing match or sparring exhibition for which 
the contestants have received or have been promised any pecuniary 
reward, remuneration or consideration whatsoever, either directly 
or indirectly." In other words, the two evils aimed at by the 
Legislature were public boxing matches of all kinds, and profes- 
sional boxing in public or in private. 

Several reasons lead me to this conclusion : — 

1. The history of the act, as appears by the Legislative Journal, 
shows that the bill first introduced and referred to the committee 
upon the judiciary (House Doc. No. 16) was a bill to prohibit 
public boxing matches. It provided, in substance, that whoever 
should engage in a public boxing match or sparring exhibition 
should be punished, etc. The clause relating to private boxing 
matches, in which parties contested for pay, was inserted by the 
committee who reported the bill back to the House in substantially 
the form in which it now appears. 

2. It is a general rule of law that in the construction of statutes 
a limiting clause is to be restrained to the last antecedent, unless 
the subject matter requires a different construction. Cushing 
V. Warivick^ 9 Gray, 362. Vid. also Commonwealth v. Kelley, 
S. J. C, Dec, 1900 (58 N. E. Rep. 691). The rule so laid down 
governs this statute, unless the plain language of the statute 
requires otherwise. 

3. The evil sought to be remedied by the Legislature was that 
of public boxing matches. If such exhibitions are injurious to 
public morals, as the Legislature seems to have considered, they 
are equally so, whether the contestants are paid or not. Such a 
match would be conducted in precisely the same manner and with 
the same results, whether the boxers were fighting for money or 
not, excepting, perhaps, that in the former case they might con- 



118 ATTORNEY-GENERAL'S REPORT. [Jan. 

test with more zeal, although that does not necessarily follow. 
The clause relating to private exhibitions was obviously designed 
to permit athletic clubs to further the presumed purposes of their 
organization by allowing their members and other persons to spar 
before members of the club and their guests, provided the sparring 
contest did not become a prize fight because of professionalism. 
Very truly yours, 

HosEA M. Knowlton, Attorney -General. 



1901.] PUBLIC DOCUMENT — No. 12. 119 



Opinions upon Applications por Leave to file 

Informations in the Name of the 

Attorney-General. 



Attorney- General ex rel. Samuel Kason et al. v. Daniel J. 

KiLEY. 

City Council — Organization — Ratification of Irregularities — 
Information — Acts of de facto Official — Attorney-General. 

The Attorney-General has authority to file an information where the appli- 
cation for the filing of such information alleges that the respondent 
was unlawfully appointed to a public office and holds it in violation 
of law. 

It is not necessary that the Attorney-General should be satisfied that the 
information which he is called upon to sign can be maintained, if the 
questions raised by it are doubtful, and the matter is one of public 
importance which cannot otherwise be determined. 

When at a first meeting of the members-elect of the common council of 
the city of Boston the senior member took the chair, and, after calling 
the council to order, entertained and declared carried a motion to 
adjourn, and immediately left the chair, refusing to entertain a doubt 
of the vote expressed by one of the members, the rights of the mem- 
bers-elect were not concluded by such adjournment, and they might 
select some other person to take the chair, and proceed with the 
organization of the council. 

When a presiding officer of the common council is elected under proceed- 
ings of doubtful validity, the records of which, duly made and signed 
by the clerk, are approved at a subsequent meeting, such approval is 
a ratification of whatever irregularities existed in the original election, 
notwithstanding the fact that such record was not read, and that the 
clerk was a de facto official, holding over from the previous year. 

The acts of a de facto clerk have all the force of those of a clerk de jure 
until they are directly impeached by a proceeding brought to test the 
legality of his office. 

Jan. 27, 1900. 

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 office of president of the common 
council, and that he holds such office in violation of law. 

There is no doubt of the authority of the Attorney-General to 
file such an information. Dillon on Municipal Corporations^ 4th 
ed., § 272. Attorney- General v. Sullivan, 163 Mass. 446. The 



120 ATTORNEY-GENERAL'S REPORT. [Jan. 

office of the president of the common council, which is created by 
the city charter (St. 1854, c. 448, § 34), the incumbent of which 
may, under the circumstances, become acting mayor (St. 1882, 
c. 182), is undoubtedly a public office, the title to which can prop- 
erly be tried by quo warranto. 

The information alleges, and the relators offered before me to 
prove : — 

First. — That at the first meeting of the members-elect the 
senior member took the chair, and, after calling the council to 
order, entertained and declared carried a motion to adjourn, after 
which no proceedings of the council could be had excepting upon 
a new summons. 

Second. — That, after such adjournment, the respondent, with- 
out election or right, assumed the chair and directed the roll to be 
called for the election of a president, to which roll call but twenty- 
seven members responded, a quorum being thirty-eight. 

Third. — That such pretended election was void, less than a 
quorum being present, notwithstanding the fact that the respon- 
dent announced that other members-elect were present in the room 
sufficient to constitute a quorum of the whole council. 

If the above propositions were the only ones to be considered, I 
should feel it my duty to sign the information. It is not neces- 
sary that the Attorney-General should be satisfied that the infor- 
mation which he is called upon to sign can be maintained. If the 
questions raised by it are doubtful, and the matter is one of public 
importance, it is his duty to sign the information, even though he 
may be of opinion that it cannot be maintained, for the reason that 
the questions involved cannot otherwise be determined. I am of 
opinion that, but for other considerations to which I shall here- 
after refer, one of the questions submitted by the information 
would be of sufficient public importance, and so doubtful, as to 
make it a fit subject for judicial determination. 

I do not think the rights of the members-elect were concluded 
by the alleged adjournment declared by the senior member. The 
undisputed facts are, that, having called the council to order, he 
entertained a motion to adjourn, put it to vote, without count 
declared it carried, and, although at once and seasonably the result 
of the vote was doubted by one of the members, he refused to 
entertain the doubt, and left the chair. I think this proceeding 
was in violation of one of the first principles of parliamentary law, 
which requires sufficient verification of a vote. A member disput- 
ing the result of the uncounted vote could not be heard to doubt 
the result of such a vote until it bad been declared. He had the 
right seasonably to express such doubt, and to insist that there be 



1901.] PUBLIC DOCUMENT — No. 12. 121 

a count. No such opportunity was given, for the presiding oflScer 
left the chair immediately, and refused to act upon the request. 

Moreover, it was the business of the council to organize. The 
member who assumed the chair had no greater rights in the matter 
than any other member. It is only by courtesy that the senior 
member presides at an organization. If he abandons that duty, 
the members have a right to select some other person to take the 
chair and complete the business for which the council is met. The 
rights of the council did not cease by the abdication of the person 
who had assumed the chair; and, whatever may be said of the 
propriety and good taste of the respondent in assuming the chair 
and proceeding with the organization of the council, I have no 
doubt of his legal right so to do ; at least, until he was displaced 
by the election of some other person as temporary presiding 
officer. 

The proceedings, however, under which he claims to have been 
elected, were, to say the least, of doubtful validity. St. 1899, 
c. 170, requires that the election of the president of the common 
council shall be a vioa voce vote, ''each member who is present 
answering to his name when it is called ... or declining to vote, 
as the case may be." More than a majority of the members-elect 
failed to respond to their names, and the number who voted, all 
votes being for the respondent, was much less than a quorum. 
Such an election would be valid if a quorum were in fact present, 
the number of votes cast being more than one-half of all who were 
present ; but the only evidence of such quorum was the statement 
of the respondent, while occupying the chair, that there were 
present in the room enough members, in addition to those who 
voted, to make a quorum. That this was so is strenuously denied 
by the relators ; and, if this were the only question in the case, I 
should certainly feel it my duty to permit the question to be tried 
by this information. 

In a case somewhat similar in its circumstances, in the national 
House of Representatives, the presiding officer named the persons 
whom he declared to be present, and thus made their presence a 
matter of record. It is, at least, questionable whether, without 
such a record, it would be competent for a presiding officer to 
declare the presence of a quorum, and make his declaration con- 
clusive evidence of the fact of a quorum. 

But it appeared at the hearing that a subsequent meeting of the 
council was called by the mayor on the eleventh day of January. 
At this meeting a yea and nay vote was passed, approving the 
records of the previous meeting. These records were made and 
duly signed by one O'Kane, who had been the duly elected clerk 



122 ATTORNEY-GENERAL'S REPORT. [Jan. 

of the previous common council, and who, it is claimed, under the 
ordinances of the city, held over until the election of a new clerk. 

The records were approved without reading. I do not deem 
this of importance, however, for it was the right of any member 
to have the records read, and failure to do so must be taken to 
impute knowledge of whatever they contained to the members who 
voted to approve the same. More than a quorum of the whole 
number of members of the common council voted to approve the 
records of the first meeting. The records so approved set forth 
the yea and nay vote under which the respondent claims to have 
been elected, and the declaration of the presiding officer that other 
members were present sufficient to make a quorum of the whole 
council. The respondent has since acted as president of the 
council without further objection, and measures of financial 
importance have been passed by the body so organized. 

I am of opinion that this vote must be taken as a ratification of 
whatever irregularities existed in the original election. The ulti- 
mate purpose of all parliamentary regulations is to ascertain and 
register the will of the majority. In whatever manner that will is 
conclusively ascertained, the result, in my judgment, must be 
taken to be the act of the entire body. 

It is claimed, however, that St. 1899, c. 170, requires a viva 
voce vote, and that it does not appear, even by the records 
approved, that such a vote was taken at a meeting when a quorum 
was present. But this statute relates only to the manner of 
voting, and does not touch the other questions raised. A majority 
of the council, by their approval of the records declaring a quorum 
present, have said that such a quorum was present. This being 
so, and the vote having been taken in accordance with the pro- 
visions of the statute, the purpose of the statute has been fulfilled. 

It is also contended that O'Kane could not hold over, and was 
not authorized to act as clerk until election by the council of 1900. 
Without discussing the merits of this question, it is sufficient to 
say that he was de facto clerk, and was recognized as such ; and, 
under the familiar principles of law applicable to such subjects, his 
acts have all the force of a clerk de jure until they are directly 
impeached by a proceeding brought to test the legality of his 
office. This is not such a proceeding ; for it is aimed, not at the 
legality of his election, but at that of an officer claiming to have 
been elected at the meetings in which he was acting as clerk de 
facto. 

No public purpose can be served by this information. A clear 
majority of the common council have expressed, in the most con- 
clusive way, their desire that the respondent shall continue to act 



1901.] PUBLIC DOCUMENT — No. 12. 123 

as president of the council. There is no other claimant to the 
office whose rights are lost by failure to file this information. On 
the contrary, I assume that, even in case the information should 
accomplish its purpose of ousting the respondent, he would 
immediately be re-elected. There is no cloud thrown upon the 
proceedings of the council by reason of his incumbency of the 
office, for it is well settled that the acts of an officer de facto are 
binding and effectual until he is ousted by judgment of a court of 
competent jurisdiction. 

For the foregoing reasons, I am of opinion that it is my duty to 
refuse the application. 

HosEA M. Knowlton, Attorney- General. 

Charles T. Eussell, for the relators. 
Thomas M. Babson, for the respondent. 



HosEA M. Knowlton, Attorney- General, ex rel. Edward 
Everett v. Tay Edwards. 

Statute — Specific Remedy for Violation — Attorney- General. 

The Attorney-General will not sign an information to restrain a respondent 
from violating the provisions of a statute, where the Legislature has 
provided a specific form of remedy for such violations. 

Where such specific form of remedy is provided, it is to be followed to 
the exclusion of all other forms. 

July 23, 1900. 

This was a petition requesting the Attorney-General to sign an 
information against the respondent, restraining him from construct- 
ing and erecting a building on Malcolm Street in the city of Bos- 
ton, in violation of the provisions of St. 1894, c. 443, § 9. 

The statute in question is an amendment of St. 1892, c. 419, 
relating to the construction and repair of buildings in the city of 
Boston. Both the original statute (section 25) and the amended 
statute (section 9) limit the height of buildings to be erected upon 
public streets or private ways. The information alleges that the 
building proposed to be erected by the respondent is to be higher 
than is allowed by the amended law. 

The statutes in question contain, in addition to regulations as to 
the height of buildings, many other provisions relating to their 
construction, including sections relating to the materials to be used, 
the character of the brick work, thickness of the walls, the con- 
struction of chimneys, gutters and floor beams, the pitch of roofs, 
sky lights, leaders, etc. In the original act the enforcement of 
these provisions devolved upon the inspector of public buildings ; 



124 ATTORNEY-GENERAL'S REPORT. [Jan. 

but by St. 1894, c. 257, it was provided that *' The supreme judi- 
cial court, or any justice thereof, and the superior court, or any 
justice thereof, in term time or vacation, shall, on the application 
of the city of Boston, by its attorney, have jurisdiction in equity 
to enforce or prevent the violation of the provisions of the acts 
relating to the erection or alteration of buildings or other structures 
in the city of Boston, and may, on such application, restrain the 
erection, alteration, use or occupation of any such building or 
structure which is being or has been erected or altered in violation 
of any of the provisions of said acts." 

The statute last quoted was enacted before the amended statute 
above referred to ; but, under the plain rules of construction appli- 
cable to such cases, the latter act being but a continuation of the 
former act, the statute of 1894, above quoted, was as applicable 
to the amended statute as to the original enactment. 

It is well settled that when the Legislature has provided a spe- 
cific form of remedy for violations of the provisions of a statute, 
such remedy is to be followed to the exclusion of all other forms. 
When a statute provides a remedy for violations of it, the remedy 
is generally exclusive ; but if it provides no remed}', relief from 
wrongs against it is to be sought at common law. Attorney- 
General V. Williams^ 174 Mass. 476-484. In the case cited, the 
court, after reciting in full the statute of 1894, above quoted, 
relating to the remedy for violations of the building laws in the 
city of Boston, said : " It was passed in reference to the elaborate 
statutes then in force enacted under the police power of the Legis- 
lature for the regulation of the erection of buildings in the city of 
Boston ; " and the opinion clearly intimates that the remedy pro- 
vided by the statute is exclusive, so far as concerns cases arising 
under the building laws of the city of Boston. 

This being so, it is not the duty of the Attorney-General to 
interfere. Without determining whether in any case an injury to 
the public might exist, of sufficient gravity and importance to war- 
rant his interference, it is sufficient to say that no such case is 
presented here. The party aggrieved should seek his remedy in 
the method prescribed by the statute. 

HosEA M. Knowlton, Attorney- General. 

James A. Tirrell^ for the relators. 

Edward W. Eutchins and Henry Wheeler^ for the respondent. 



1901.] PUBLIC DOCUMENT — No. 12. 125 



Attorney-General v, George P. Sanger et al., Ballot 
Commissioners of the City of Boston. 

Australian Ballot Law — Illegal Nominations — Certiorari — 
Attorney- General, 

It does not appear to be the intent of the laws regulating the Australian 
ballot that the nomination of candidates shall be delegated by the con- 
vention to a committee who are empowered to select candidates and 
to present their names to the Ballot Commissioners as the nominees of 
the convention ; and if an application for a writ of certiorari to declare 
illegal the nominations so made should be presented by a member of 
the convention or by any considerable number of the voters of the 
party, it would be the duty of the Attorney-General to permit the use 
of his name, in order that the question of the legality of such nomi- 
nations might be determined by the court. 

But where the only protest is made by a candidate of another party whose 
name appears upon the official ballot, and the delay incidental to the 
determination of the question by the court will endanger the legality 
of the whole election, the Attorney-General will, in the exercise of the 
discretion entrusted to him, refuse to sign an information, if it 
appears that neither the candidate seeking that proceeding nor the 
voters suffer substantial injury thereby. 

Dec. 5, 1900. 

This was an application to the Attorney-General for the use of 
his name in a petition for certiorari against the respondents, 
Ballot Commissioners of the city of Boston, alleging in substance 
that they had wrongfully ordered the names of six men, the 
nominees of the Democratic party, to appear upon the official 
ballot at the coming election, as candidates for the office of school 
committee. 

The information was sought by Alfred S. Hayes, whose name is 
to appear upon the ballot as an independent candidate for the 
same office. 

The grounds upon which the petition is based are that the 
Democratic convention for the nomination of candidates, instead 
of nominating candidates for school committee, referred the whole 
matter to a committee of twenty-six, with full power to select 
candidates and to present their names to the Ballot Commissioners 
as the nominees of the convention. It is claimed that this action 
is contrary to the laws regulating the Australian ballot and that 
the commissioners should not have allowed their names to go upon 
the ballot. 

I am very strongly inclined to the opinion that the nomination 
was irregular. It appears to be the intent of the statutes that 
candidates shall be nominated by a convention duly called and 
held for tliat purpose, and it is very doubtful whether a nomination 



126 ATTORNEY-GENERAL'S REPORT. [Jan. 

by a committee appointed by the convention, without subsequent 
ratification by the convention itself, is a compliance with the law. 
It was stated at the hearing that this practice had existed for 
many years before the enactment of the Australian ballot laws, 
and is still in force to a large extent in the Democratic party. 
Custom, however, cannot in this case make law. 

If the application were seasonably made, by a member of the 
convention or by any considerable number of the voters of the 
party, for a writ of certiorari to declare such nominations illegal, I 
should deem it my duty to permit the use of the name of the 
Attorney-General, in order that the question of the legality of 
such a method of nomination might be presented to the court for a 
decision. 

But this is no such case. It was stated at the hearing that no 
member of the convention protested at the time of the holding of 
the convention or has since protested to the candidates of the 
convention. So far as acquiescence can be presumed from these 
facts, the candidates in question may be said to be the accepted 
candidates of the party whose nominees they claim to be. This 
petition is promoted by one whose name will also appear upon the 
official ballot. Whether in law his rights are affected by the 
addition upon the same ballot of unauthorized names, it is not 
necessary to determine. It is certain, however, that no one who 
desires to vote for him is misled or deprived of his opportunity so 
to vote by reason of the appearance of the names in question. 

Moreover, it was stated at the hearing, and not controverted, 
that, in view of the nearness of the election and the enormous labor 
incident to the printing of the official ballot for all the precincts in 
the city, if the determination of the question raised were postponed 
for even a short time, it would endanger the legality of the city 
election. It was claimed, indeed, that, if the question were 
brought before the court and not determined to-day, it would be 
doubtful whether the sample ballots and the regular ballots could 
be prepared within the time prescribed by law. 

An application to strike names of candidates from the Austra- 
lian ballot, and thus inconvenience voters desiring to vote for such 
candidates, is not to be received with favor. The clear intent of 
the statutes relating to the Australian ballot is, while requiring 
certain necessary forms to be observed in making nominations, to 
give every voter the fullest opportunity to express his choice by 
the ballot, without unnecessary inconvenience. But if, on the 
other hand, by reason of any technicality, a candidate whose elec- 
tion is desired by any considerable number of voters should be 
refused a place upon the ballot, not only he, but those desiring to 



1901.] PUBLIC DOCUMENT — No. 12. 127 

vote for him, would be put to burdensome and unnecessary incon- 
venience. Such a course should only be sustained upon the 
clearest warrant of law. 

The Election Commissioners, to whom questions of this character 
are committed under the statutes, have fully considered this case, 
and, after a hearing of the parties, have determined that the names 
of the candidates in question should appear upon the ballot. As 
no substantial injury appears to result from the decision of the 
commissioners, either to the candidate seeking this proceeding or 
to the voter, and as the legality of the city election may be imper- 
illed if legal proceedings are taken at this late day, I am clearly of 
the opinion that, in the exercise of the discretion entrusted to the 
Attorney-General, I should not sign the information. 

HosEA M. Knowlton, Attorney-General. 

George W. Anderson^ for the relator. 

Thomas M. Babson, city solicitor, for the respondents. 



128 ATTORNEY-GENERAL'S REPORT. [Jan 



INFORMATIOlSrS. 



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

(a) For the non-payment of corporation taxes for the year 
1899, informations were brought against the — 

Arlington Hotel Company. Tax paid and information dismissed. 

Bay State Lumber Company. Enjoined. 

Bay State Manufacturing Company. Enjoined. 

Bay State Metal Works. Tax paid and information dismissed. 

Boston Co-operative Press. Enjoined. 

Boston Steel and Iron Company. Tax paid and information dis- 
missed. 

Boston Time Table Company. Enjoined. 

Boston Traveler Company, The. Tax paid and information dis- 
missed. 

Bracketts Market Corporation. Tax paid and information dis- 
missed. 

Cape Ann Granite Railroad Company. Tax paid and information 
dismissed. 

Chelsea Express Despatch Company. Tax paid and information 
dismissed. 

Childs & Kent Express Company. Tax paid and information 
dismissed. 

Columbia Electric Company. Tax paid and information dismissed. 

Cunningham Lumber Company. Tax paid and information dis- 
missed. 

Cyclopaedia Publishing Company. Tax paid and information 
dismissed. 

Daily News Company. Tax paid and information dismissed. 

Damon Brick Company. Tax paid and information dismissed. 

Deerfield Manufacturing Company. Enjoined. 

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

F. P. Norton Cigar Company. Enjoined. 

Fall River Burial Company. Enjoined. 

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



1901.] PUBLIC DOCUMENT — No. 12. 129 

George P. Staples & Co., incorporated. Tax paid and information 
dismissed. 

Globe Foundry Company, The. Enjoined. 

H. B. Stevens Company. Tax paid and information dismissed. 

H. F. Ross Company. Tax paid and information dismissed. 

Halford Sauce Company. Enjoined. 

Harcourt Paper Box Company. Tax paid and information dis- 
missed. 

Holyoke Newspaper Publishing Company, The. Tax paid and 
information dismissed. 

Investment Corporation, The. Tax paid and information dis- 
missed. 

J. P. & W. H. Emond, incorporated. Tax paid and information 
dismissed. 

L. E. Fletcher Company, The. Tax paid and information dis- 
missed. 

Lang & Jacobs Company. Tax paid and information dismissed. 

Lapham Woolen Company. Enjoined. 

M. A. Swift Sons, incorporated. Tax paid and information dis- 
missed. 

Massachusetts Construction Company, The. Tax paid and infor- 
mation dismissed. 

Massachusetts Guarantee Company. Enjoined. 

Massachusetts Pipe Line Gas Company (1898 tax). Pending. 

Medway Electric Light and Power Company. Tax paid and 
information dismissed. 

Miles F. Brennan Company. Tax paid and information dismissed. 

Monarch Horse Nail Company. Tax paid and information dis- 
missed. 

Moore-Coombs Company. Enjoined. 

Morgan Company, The. Tax paid and information dismissed. 

Morrill Brothers Company. Tax paid and information dismissed. 

Murphy Knitting Company. Tax paid and information dismissed. 

Mystic Wharf and Storage Company. Tax paid and information 
dismissed. 

New England Clothing Company. Enjoined. 

New England Laundry Company. Tax paid and information 
dismissed. 

New England Merchandise Company. Enjoined. 

Pean Medical Company. Tax paid and information dismissed. 

People's Provision Company. Enjoined. 

Pilgrim Iron Foundry Company. Tax paid and information dis- 
missed. 

Pittsfield Coal Company. Enjoined. 



130 ATTORNEY-GENERAL'S REPORT. [Jan. 

Plum Island Electric Street Railway Company, The. Tax paid 
and information dismissed. 

Quincy & Nantasket Steamboat Company. Tax paid and infor- 
mation dismissed. 

Raudall-Faichney Company. Tax paid and information dismissed. 

Samuel Enrich Company. Tax paid and information dismissed. 

Scandia Granite Works. Tax paid and information dismissed. 

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

T. F. Little Oil Company, The. Tax paid and information dis- 
missed. 

Union Telephone and Telegraph Company of Massachusetts. 
Pending. 

Wade & Reed Company. Tax paid and information dismissed. 

Walnut Publishing Company. Tax paid and information dis- 
missed. 

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

William N. Irving Company. Enjoined. 

Williams Table and Lumber Company, The. Enjoined. 

Woodward & Brown Piano Company. Tax paid and information 
dismissed. 

Ziegler Electric Company. Tax paid and information dismissed. 

(b) For failure to file the tax return for the year 1900, re- 
quired by section 38 of chapter 13 of the Public Statutes, informa- 
tions were brought against the — 

Alexander Hill Bedding Company. Enjoined. 

Bay State Security Company. Enjoined. 

Berkeley House Company. Return filed and information dismissed. 

Bowler Gridley Compan}^ Pending. 

Burnett Paint Company. Return filed and information dismissed. 

C. H. Black Company. Pending. 

C. L. Smith Company, The. Enjoined. 

Charles A. Millen Company. Return filed and information dis- 
missed. 

Church Publication Company, The. Pending. 

Coates Clipper Manufacturing Company. Return filed and infor- 
mation dismissed. 

Columbia Manufacturing Company. Enjoined. 

Columbia Stoker Company. Enjoined. 

Co-operative Printing Society. Return filed and information 
dismissed. 



1901.] PUBLIC DOCUMENT — No. 12. 131 

Davenport & Hersey Company. Return filed and information 
dismissed. 

Dorchester Building Material Company. Eeturn filed and infor- 
mation dismissed. 

Equity Co-operative Boot and Shoe Manufacturing Company. 
Return filed and information dismissed. 

Fore River Company. Return filed and information dismissed. 

Forest Grove Company. Return filed and information dismissed. 

Franklin Educational Company. Return filed and information 
dismissed. 

Frost Remedy Company. Return filed and information dismissed. 

Grafton, Upton & Milford Street Railway Company. Return 
filed and information dismissed. 

Groton Co-operative Creamery Company, The. Return filed and 
information dismissed. 

H. M. White Company. Enjoined. 

Hamilton Separator Company. Return filed and information 
dismissed. 

Hampden Trap Rock Company. Return filed and information 
dismissed. 

Harcourt Paper Box Company. Enjoined. 

Home Telephone and Telegraph Company, The. Return filed and 
information dismissed. 

Hoxie Mineral Soap Corporation. Pending. 

Hunt Spiller Manufacturing Company, The. Return filed and 
information dismissed. 

Hutchinson & Smith Company, The. Return filed and informa- 
tion dismissed. 

J. F. Puffer & Son Company, The. Enjoined. 

J. R. Robinson Company. Enjoined. 

John F. Bingham Company. Return filed and information dis- 
missed. 

Maiden Stock Laundry Company, The. Enjoined. 

North Andover Mills. Return filed and information dismissed- 

Peet Valve Company. Return filed and information dismissed. 

People's Gas and Electric Company of Stoneham. Return filed 
and information dismissed. 

St. Regis Leather Company. Return filed and information dis- 
missed. 

Standard Furniture Company, The. Enjoined. 

Swedish Razor Company. Return filed and information dis- 
missed. 

T. A. Norris Machine Company. Return filed and information 
dismissed. 



132 ATTORNEY-GENERAL'S REPORT. [Jan. 

Weymouth Seam Face Granite Company. Return filed and infor- 
mation dismissed. 

William H. King Sons Company. Enjoined. 

Woodward & Brown Piano Company. Return filed and informa- 
tion dismissed. 

Worcester Gazette Company, The. Return filed and information 
dismissed. 

Xylite Lubricating Company. Return filed and information dis- 
missed. 

2. At the Relation of the Commissioner of Corporations. 
For failure to file the certificate of condition required by section 
54 of chapter 106 of the Public Statutes — 

Amesbury Opera House Company. Certificate filed and informa- 
tion dismissed. 

Atlantic Box Manufacturing Company. Certificate filed and infor- 
mation dismissed. 

Dudley Mills. Certificate filed and information dismissed. 

Fisher-Churchill Company, The. Certificate filed and informa- 
tion dismissed. 

Foxborough Foundry and Machine Company. Enjoined. 

Franklin Educational Company. Certificate filed and information 
dismissed. 

Globe Foundry Company, The. Enjoined. 

Hampden Watch Company. Certificate filed and information dis- 
missed. 

Hub Express Company. Certificate filed and information dis- 
missed. 

Household Novelty Manufacturing Company, The. Enjoined. 

Knights of Labor Co-operative Boot and Shoe Association. En- 
joined. 

Taunton Evening News. Certificate filed and information dis- 
missed. 

Xylite Lubricating Company. Certificate filed and information 
dismissed. 

3. At the Relation of Private Persons. 
Attorney-General ex rel. v. Vineyard Grove Company. Petition 
for use of name in an information for an injunction restrain- 
ing the said company from an alleged interference with the 
rights of the public in a sea beach, and ordering the removal 
of structures causing such alleged interference. Hearing. 
Use of name granted. Henry S. Dewey appointed master. 
Pending. 



1901.] PUBLIC DOCUMENT — No. 12. 133 

Attorney-General ex rel. Samuel E. Hull et als.^ Selectmen of 
Millbury, v. Washburn & Moen Manufacturing Company. 
Information in the nature of quo ivarranto to abate a nuisance. 
Hearing. Use of name granted. Pending. 

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 174 Mass. 476. 
Pending. 

Attorney-General v. Onset Bay Grove Association. Information 
in the nature of quo warranto to abate a public nuisance. 
Use of name granted. Referred to Warren A. Reed, auditor. 
Pending. 

Applications Refused. 

[For full text of opinions, giving reasons for refusal, see page 119.] 

Attorney-General ex rel. v. Daniel J. Kiley. Petition for quo war- 
ranto to try title to office of president of common council of 
the city of Boston. 

Attorney-General ex rel. v. State Board of Bar Examiners. Peti- 
tion for a prerogative writ against bar examiners. 

Attorney-General ex rel. v. Tay Edwards. Petition for informa- 
• tion to restrain defendant from erecting a building on Mal- 
colm Street, Boston. 

Attorney-General ex rel. v. Nelson H. Bearse. Petition for an 
information to restrain the selectmen of Barnstable from 
erecting certain structures in Barnstable. 

Attorney-General ex rel. v. Geo. P. Sanger et al., Ballot Law 
Commissioners of Boston. Petition for writ of certiorari. 



134 ATTORNEY-GENERAL'S REPORT. [Jan. 



GRADE CROSSINGS. 



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 Coimty. 

Bourne, Selectmen of, petitioners. Commissioners appointed. 

Pending. 
Harwich. New York, New Haven & Hartford Railroad Company, 

petitioner. Pending. 
Harwich, Selectmen of, petitioners. Pending. 

Berkshire County. 

Hinsdale, Selectmen of, and Directors of Boston & Albany Rail- 
road Company, petitioners. Petition for alteration of Bul- 
lard's. Church Street and Pierce's grade crossings in Hinsdale. 
Thomas W. Kenefick, William Sullivan and C. M. Ludden 
appointed commissioners. Pending. 

Pittsfield, Mayor and Aldermen of, petitioners. Petition for 
alteration of Holmes road crossing in Pittsfield. Pending. 

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. Directors of New York, New Haven & Hart- 
ford Railroad Company, petitioners. Petition for the aboli- 
tion of grade crossings over the West Stockbridge Railroad 
Corporation in West Stockbridge. Pending. 

West Stockbridge. Directors of Boston & Albany Railroad, peti- 
tioners. Commissioners appointed. Pending. 

West Stockbridge. Directors of New York, New Haven & Hart- 
ford Railroad Company, petitioners. Petition for the abolition 
of *' Potters Crossing," alias " Tymesons Crossing," in West 
Stockbridge. Pending. 

Williamstown, Town of, petitioner. Crossings over Fitchburg 
Railroad. Commissioners appointed. Pending. 



1901.] PUBLIC DOCUMENT — No. 12. 135 



Bristol County. 

Attleborough, Selectmen of, petitioners. Petition for the aboli- 
tion of crossings at Deanville, North Main, Bank, etc., streets. 
Pending. 

Attleborough. Directors of Old Colony Railroad Company, peti- 
tioners. Commissioners appointed. Pending. 

Dighton. New York, New Haven & Hartford Railroad, peti- 
tioner. Pending. 

Dighton. Directors of New York, New Haven and Hartford 
Railroad, petitioners. Petition for the abolition of crossings 
at Railroad and Main streets. Discontinued by agreement. 

Easton. Directors of New York, New Haven and Hartford Rail- 
road Company, petitioners. Pending. 

Fall River, Mayor and Aldermen of, petitioners. Two petitions 
consolidated. New York, New Haven & Hartford Railroad 
Company. Pending. 

New Bedford, Mayor and Aldermen 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, 
Britannia and Freemont streets, and Crane Avenue in Taun- 
ton. Pending. 

Taunton, Mayor and Aldermen of, petitioners. Old Colony Rail- 



road. Pending. 
Taunton, Mayor and Aldermen of, petitioners. Petition for the 
abolition of Chase crossing on Middleborough and Rich- 
mond streets. (This petition consolidated with the two pre- 
ceding petitions.) 

Essex County. 

Beverly. Directors of Boston & Maine Railroad Company, peti- 
tioners. Pending. 

Haverhill, Mayor and Aldermen of, petitioners. Petition for the 
abolition of Washington, Essex and Winter streets crossings 
in Haverhill. Pending. 

Ipswich. Boston & Maine Railroad Company, petitioners. 
Pending. 



136 ATTORNEY-GENERAL'S REPORT. [Jan. 

Manchester. Directors of Boston & Maine Railroad Company, 
petitioners. Pending. 

Salisbur}^ Directors of Boston & Maine Railroad Company, 
petitioners. Petition for abolition of Hoks and Gerrish cross- 
ing. Pending. 

Swampscott, Selectmen of, petitioners. Commissioners appointed. 
Hearing. Report partially confirmed. Pending. 

Franklin County. 

Montague, Selectmen of, 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. 

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, petitioners. Petition for the abo- 
lition of Robeson's crossing in East Longmeadow. Pending. 

East Longmeadow, Selectmen of, petitioners. Pending. 

Monson. Boston & Albany Railroad Company, petitioner. Hast- 
ings', Butler'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. 

Palmer, Selectmen of, petitioners. Petition for abolition of 
Springfield road crossing in Palmer. 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. 



1901.] PUBLIC DOCUMENT — No. 12. 137 

Springfield. Directors of Boston & Albany Railroad Company, 

petitioners. Pasco Road. Pending. 
Springfield, Mayor and Aldermen of, petitioners. Armory Street. 

Pending. 
Springfield, Mayor and Aldermen of, petitioners. Pasco Road. 

Pending. 
Springfield, Mayor and Aldermen of, petitioners. Petition for 

alteration of grade crossing on street leading from South 

Street to South End bridge. Pending. 
West Springfield, Selectmen of, petitioners. Baldwin and Cold 

Spring streets. Hearings. Report of commissioners filed. 

Pending. 
Westfield, Selectmen of, petitioners. North Elm Street. Pend- 
ing. 
Westfield. Boston & Albany Railroad Company, petitioner. 

Cobwin and Morse's crossing. Commissioners appointed. 

Pending. 
Westfield, Selectmen of, petitioners. Pending. 
Westfield, Selectmen of, petitioners. Petition for raising of Elm 

Street bridge in Westfield. Pending. 
Westfield, Selectmen of, petitioners. Petition for the raising of 

North Elm Street bridge. Pending. 
(North) Wilbraham. Depot. Boston & Albany Railroad Com- 
pany, petitioners. Pending. 

Hampshire County. 

Belchertown, Selectmen of, petitioners. Petition for the alteration 
of the ''Holyoke Road" crossing in Belchertown. George 
W. Wiggin, E. K. Turner and Fred D. Stanley appointed 
commissioners. Pending. 

Hatfield, Selectmen of, petitioners. Connecticut River Railroad 
Company and Boston & Maine Railroad Company. Pending. 

Northampton, Mayor and Aldermen of, petitioners. Petition for 
alteration of Laurel Park station grade crossing in Northamp- 
ton. George W. Wiggin, E. K. Turner and Fred D. Stanley 
appointed commissioners. Pending. 

Northampton and Easthampton. Directors of Connecticut River 
Railroad Company, petitioners. Petition for alteration of 
East Street and Lyman's crossings in Northampton and 
Easthampton. George W. Wiggin, E. K. Turner and Fred 
D. Stanley, commissioners. Pending. 

Northampton, Mayor and Aldermen of, petitioners. Petition for 
the alteration of crossings on Grove and Earle streets. 
Pending. 



138 ATTORNEY-GENERAL'S REPORT. [Jan. 

Ware, Selectmen of, petitioners. Commissioners appointed. 

Pending. 
"Ware, Selectmen of, petitioners. Commissioners appointed. 

Pending. 

Middlesex County. 

Acton, Selectmen of, petitioners. Petition for the abolition of 
crossing known as " Great Road." Pending. 

Arlington. Selectmen of the town of Arlington, petitioners. 
Pending. 

Ashland. Directors of Boston & Albany Railroad Company, 
petitioners. Commissioners appointed. Pendmg. 

Ayer, Selectmen of, and Directors of Fitchburg Railroad Com- 
pany, petitioners. Pending. 

Bedford, Selectmen of, petitioners. Petition for the abolition of 
the Concord road crossing in Bedford. Fred D. Stanley, H, 
R. Coffin and Edmund K. Turner, commissioners. Pending. 

Cambridge. Boston & Lowell Railroad Company, by its lessee 
the Boston & Maine Railroad Company, petitioner. Pending. 

Concord, Selectmen of, 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 Company, petitioner. Pending. 

Lowell, Maj^or 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, petitioners. Fitchburg 
Railroad Company. Pending. 

Marlborough. Old Colony Railroad Company, petitioner. Fisher's 
crossing. Pending. 

Natick. Directors of Boston & Albany Railroad Company, peti- 
tioners. Three petitions. Pending. 

Newton, Mayor and Aldermen of, petitioners. Boston & Albany 
Railroad Company. Argued before full court. Decision 
made on accounting, Sept. 1, 1898. Pending. 

Newton, Mayor and Aldermen of, petitioners. Petition for the 
abolition of Glenn Avenue, Langley Road, Institution Ave- 
nue, Cypress, Centre, Rogers, Hyde, Walnut, Boylston and 
Cook streets in Newton. Pending. 



1901.] PUBLIC DOCUMENT — No. 12. 139 

Newton, Mayor and Aldermen of, petitioners. Petition for the 
abolition of Oak, Linden and Mecham streets crossings in 
Newton. Pending. 

Newton, Mayor and Aldermen of, petitioners. Petition for the 
abolition of Concord Street and Pine Grove Avenue crossings 
in Newton. Pending. 

North Reading, Selectmen of, petitioners. Petition for the aboli- 
tion of Main Street crossing. Pending. 

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, petitioners. Fitchburg Rail- 
road Company. Pending. 

Watertown, Selectmen of, petitioners. Commissioners appointed. 
Pending. 

Norfolk County. 

Braintree. Directors of New York, New Haven & Hartford Rail- 
road Company, petitioners. Pending. 

Braintree. Directors of New York, New Haven & Hartford Rail- 
road Company, petitioners. Pending. 

Canton, Selectmen of, petitioners. Pending. 

Dedham, Selectmen of, 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. Pend- 
ing. 

Medway, Selectmen of, petitioners. Pending. 

Milton, Selectmen of, petitioners. Petition for abolition of Cen- 
tral Avenue crossing. Pending. 

Needham, Selectmen of, petitioners. Petition for alteration of 
Charles River Street crossing in Needham. Pending. 

Norwood, Selectmen of, and New York & New England Railroad 
Company, petitioners. Washington, Chapel and Guild streets 
and Railroad Avenue. Hearings. Pending. 

Sharon, Selectmen of, petitioners. Petition for the abolition of 
Depot Street crossing in Sharon. Pending. 



140 ATTORNEY-GENERAL'S REPORT. [Jan. 

Stoughton. Directors of New York, New Haven & Hartford 

Railroad Company, petitioners. Pending. 
Walpole, Selectmen of, petitioners. Petition for the abolition of 

crossings at Oak, Main, Elm, etc., streets. Pending. 

Plymouth County. 

Abington. Directors of New York, New Haven & Hartford Rail- 
road 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. 

Middleborough, Selectmen of, petitioners. Pending. 

Scituate. Directors of New York, New Haven & Hartford Rail- 
road Company, petitioners. Petition for the alteration of 
grade crossings at Water and Union streets. Pending. 

Scituate, Selectmen of, 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 Company. 
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 Railroad 
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 Avenue, 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, petitioners. New England Rail- 
road Company. Pending. 

Boston, Mayor and Aldermen of, petitioners. Pending. 



1901.] PUBLIC DOCUMENT — No. 12. 141 

Boston, Mayor and Aldermen of, petitioners. Pending. 

Dorchester Avenue, Boston. Directors of 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 & 
Albany 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. 

Worcester County. 
Athol, Selectmen of, petitioners. Commissioners appointed. 

Pending. 
Auburn, Selectmen of, petitioners. Pending. 
Auburn. Directors of Boston & Albany Railroad Company, peti- 
tioners. Pending. 
Blackstone, Selectmen of, 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. Pending. 
Fitchburg, Mayor and Aldermen of, petitioners. Pending. 
Gardner, Selectmen of, petitioners. Commissioners appointed. 

Pending. 
Gardner, Selectmen of, petitioners. Pending. 
Gardner, Selectmen of, petitioners. Petition for change of grade 

at Union Street crossing in Gardner. Pending. 
Holden, Selectmen of, petitioners. Fitchburg Railroad Company. 

Pending. 
Holden, Selectmen of, petitioners. Petition for abolition of 

Dawson's, Cedar Swamp, Wachusett Street and Blake Road 

crossings in Holden. Chas. A. Allen, Arthur P. Rugg and 

Henry G. Taft, Commissioners. 
Leicester. Directors of Boston & Albany Railroad Company, 

petitioners. Pending. 



142 ATTORNEY-GENERAL'S REPORT. [Jan. 

Leominster, Selectmen of, petitioners. Pending. 

Millbury, Selectmen of, petitioners. Pending. 

Millbury, 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. 
Pending. 

Southborough, Selectmen of, petitioners. Petition for the abolition 
of a grade crossing on road to Hopkinton in Southborough. 
Pending. 

Southborough, Selectmen of, and Directors of New York, New 
Haven & Hartford Railroad Company, petitioners. Pending. 

Southborough. Directors of the New York, New Haven & 
Hartford Railroad Company, petitioners. Pending. 

Sutton, Selectmen of, petitioners. Pending. 

Templeton, Selectmen of, petitioners. Pending. 

Uxbridge. Directors of New York, New Haven & Hartford Rail- 
road Company, as lessee of the Providence & Worcester Rail- 
road Company, petitioners. Pending. 

Warren. Directors of Boston & Albany Railroad Company, 
petitioners. Pending. 

Warren. Directors of Boston & Albany Railroad Company, peti- 
tioners. Pending. 

Westborough, Selectmen of, and Directors of Boston & Albany 
Railroad Company, petitioners. (In this case a controversy 
arose between the town and the Commonwealth as to the 
respective amounts to be paid in the construction of the pro- 
posed alterations. The case was argued before the commis- 
sioners, 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. Pending. 



1901.] PUBLIC DOCUMENT — No. 12. 143 

Worcester, Mayor and Aldermen of, petitioners. Petition for the 
alteration of crossings on Grafton, Green, Washington, Plym- 
outh, Hammond, Gardner, Grand, Southgate and Cambridge 
streets, and alteration of Union Station. Pending. 

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 right to 
be heard : — 

American Quilt Company. 

American Shoe Company. 

Appleton Shoe Company. 

Athol Realty Company. 

Austin C. Wellington Coal Company. 

Bay State Magnetic Motor Company. 

Bay State Reversible Window Company. 

Bogle Brothers Company. 

Boston Fibre Company. 

Bower & Bartlett Company. 

Blanchard Optical Company. 

Bridgewater Box Manufacturing Company. 

C. I. W. Maynard Company. 

Chapman Manufacturing Company. 

Chester Paper Company. 

Chesterfield Co-operative Pearl Button Company. 

Coburn Metallic Bed and Pneumatic Tube Mattress 

Company. 
Computing Scale Manufacturing Company. 
G. K. Baird Paper Company. 
Gilbert Loom Company. 
Hampshire Cycle Manufacturing Company. 
Hatch- Wall Flashing Company. 
Highland Club Association of West Roxbury. 
Industrial Co-operative Association. 
James Skinner Leather Company. 
Jesse Eddy Manufacturing Company. 
Leicester Hotel Company. 
M. Collins Woolen Manufacturing Company. 
M. Robson Leather Company. 
Maiden Odd Fellows Hall Association. 
Massasoit Paper Manufacturing Company. 
Medway Lumber Company. 



144 ATTORNEY-GENERAL'S REPORT. [Jan. 

Mellay Last Company. 

Middlesex Leather Company. 

Millers River Building Company. 

Murphy Knitting Company. 

National Shoe and Leather Exchange. 

Norfolk Telephone Company. 

Oneeko Mills Corporation. 

P. Blodgett Company. 

Peabody Mills. 

Plymouth County Co-operative Creamery Association. 

Plymouth Woolen Company. 

Pomero}^ Mining Company. 

Rapid Eyeleting Machine Company. 

Reliable Electric Manufacturing Company. 

Rollstone Granite & Construction Company. 

Samuel Enrich Company. 

Seymour Cutlery Company. 

South Sea Cranberry Company. 

Southbridge Manufacturing Company. 

Standard Envelope Company. 

Stanley Electric Manufacturing Company. 

Stephen Door Company. 

Sumner Drug and Chemical Company. 

Taylor Manufacturing Company. 

Turner's Falls Driving Association. 

Taylor & Tapley Manufacturing Company. 

The Kimball Factory. 

Union Wharf Company. 

United States Envelope Machine Company. 

Victoria Mills Corporation. 

Waldorf Traveller Shoe Company. 

Wellesley Free Library. 

Whitman Co-operative Store. 

Wilbraham Woolen Company. 

Wilder & Clark Shoe Company. 

Worcester Excursion Company. 

Worcester Manufacturing 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 ; — 

Albemarle Slate Company. 
Altamont Springs Company. 



1901.] PUBLIC DOCUMENT -No. 12. 145 

American Company, The. 

Arlington Co-operative Association. 

Asliland Leather Board Company. 

Atlantic Telegraph Company of Mass. 

Bay State Coal Company. 

Bennett's Information Company. 

Boston Advertising Company. 

Boston Cycle Company. 

Boston Electric Company. 

Boston Excursion Steamship Company. 

Boston Paving Company. 

Boston Printing Company. 

Bradley Fertilizer Company. 

Burbank ^Produce Company. 

C. B. Cook Laundry Company. 

C. W. Tappan Shoe Company. 

Cape Ann Printing Company. 

Childs & Kent Express Company. 

City Warehouse and Storage Company, The. 

Cold Process Company. 

Concord School Company. 

Consolidation Steamboat Company, The. 

Crompton & Knowles Loom Company. 

Crosby Brothers Company. 

D. S. McDonald Company. 

Damon Safe and Iron Works Company, The. 

De Silva Morine Company. 

Drivers Union Ice Company, The. 

Drury Manufacturing Company. 

Eastern Printing and Engraving Company. 

Easton Street Railway Company. 

F. C. Von Der Heide Company, The. 

Fall River Merino Company, The. 

Fiske Rubber Company. 

Framingham Electric Company. 

Fuller Company, The. 

Gardner Egg Carrier Company. 

George F. Quigley Company. 

George P. Staples & Co., incorporated. 

Gilman Snow Guard Company. 

Gloucester Net and Twine Company. 

Guyer Hat Company, The. 

Hamilton Dry Goods Company. 

Haynes-Piper Company. 



146 ATTORNEY-GENERAL'S REPORT. [Jan. 

Hero Cough Syrup Company, The. 

Home Guaranty Mutual Insurance Company. 

Hoosac Tunnel & Wilmington Railroad Company. 

International Copper Syndicate, The. 

Interstate Law Company. 

Investor Publishing Company. 

Iroquois Manufacturing Company. 

Kelly Shoe Company, The. 

Kimball Brothers Company. 

L. W. & H. F. Morse Company. 

L. W. Pond Machine Company. 

Lakeside Manufacturing Company. 

Lamprey Boiler Furnace Mouth Protector Company. 

Liberty Masonic Association. 

Lynn News Publishing Company. 

Marshal Engine Company. 

Massachusetts Real Estate Company. 

Mather Launch and Canoe Company. 

McLean Shoe Company. 

Medfield & Medway Street Railway Company, The. 

Medfield Electric Light and Power Company, The. 

Medway Electric Light and Power Company, The. 

Merrimac Valley Steamboat Company. 

Miles F. Brennan Company. 

Monarch Horse Nail Company. 

Morgan Company, The. 

Murphy Knitting Company. 

New England Dredging Company. 

Newport Transfer P^xpress Company. 

Nipmuck Paper Box Company. 

Norwood, Canton & Sharon Street Railway Company, 

The. 
Nute-Hallett Company, incorporated. The. 
Oak Grove Creamery Company, The. 
Old Colony Rubber Company. 
People's Lumber and Manufacturing Company. 
Pearsons Manufacturing Company, The. 
Pigeon Hill Granite Company. 
Pilgrim Iron Foundry Company. 
Portsmouth Mill Company. 
Pratt Manufacturing Company. 
R. H. Long Shoe Manufacturing Company. 
Rockland P'actory Building Association. 
Rollstone Granite and Construction Company. 



1901.] PUBLIC DOCUMENT — No. 12. 147 

Rounds & Dennison Corporation. 

Shedd & Crane Leather Company. 

South Shore & Biston Street Railway Company. 

Springfield Construction Company, The. 

Springfield Elevator and Pump Corporation, The. 

Standard Horse Shoe Company. 

Stoughton & Randolph Street Railway Company. 

Suburban Gas and Electric Company. 

Taunton Evening News. 

Teeling Baking Company, The. 

Thompson Milling Company. 

Union Cycle Manufacturing Company. 

Union Manufacturing Company. 

United States Cord Company. 

Vineyard Haven Marine Railway Company, The. 

W. C. Young Manufacturing Company. 

W. D. Wilmarth & Co. 

W. E. Rice Company, The. 

Wachusett Mills. 

Walnut Publishing Company. 

Ware Street Railway Company. 

Warren & Hill Coal Company. 

Western Union Telegraph Company. 

Westfield Brick Company. 

Whitall Manufacturing Company. 

Whiting Manufacturing Company. 

William C. Norcross Company. 

Worcester Construction Company, The. 

Ziegler Electric Company. 

The following corporation, 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, has been 
compelled, without the necessity of suit, to comply with the 
statute : — 

New England Laundry Company. 



148 ATTORNEY-GENERAL'S REPORT. [Jan. 



Cases arising in the Probate Courts under 
THE Collateral Inheritance Tax Act. 



[Statutes 1891, Chapter 425.] 

Barnstable County. 
Chase, Henry M., estate of. Randall Chase, executor. Petition 
for extension of time for payment of collateral inheritance tax. 
Consented to extension. 

Bristol County. 

Bassett, George W., estate of. Samuel P. Gates, trustee. Peti- 
tion for license to receive personal estate. Attorney-General 
waived right to be heard. 

Beauvais, Joseph A., estate of. Charles W. Clifford, executor. 
Petition for postponement of the time for payment of collat- 
eral inheritance tax. Decree. 

Carleton, Eliza D., estate of. Cyrus Carleton et al.^ executors. 
Petition for license to receive personal estate. Attorney- 
General waived right to be heard. 

Cartwright, Nancy G., estate of. Alma C. Coffin, executrix. 
Petition for license to receive personal estate in Massachusetts. 
Pending. 

Cory, Seabury, estate of. George S. Homer et als., executors. 
Petition for appraisal. Pending. 

Easterbrooks, Mary, estate of. Thomas W. Easterbrooks, executor. 
Petition for license to receive personal estate. Attorney- 
General waived right to be heard. 

Francis, Pardon R., estate of. Gertrude L. Goodwin, executrix. 
Petition for license to receive personal estate in Massachusetts. 
Attorney-General waived right to be heard. 

Kennicutt, Augusta, estate of. Daniel S. Bushee, administrator. 
Petition for license to receive personal estate. Pending. 

Kennicutt, Robert, estate of. Daniel S. Bushee, administrator. 
Petition for license to receive personal estate. Pending. 

Manchester, Harriet 0., estate of. C. F. Seabory, executor. 
Petition for license to receive personal estate in Massachusetts. 
Attorney-General waived right to be heard. 



1901.] PUBLIC DOCUMENT — No. 12. 149 

Peck, Nancy B., estate of. Henry W. Peck, executor. Petition 

for license to receive personal estate. Attorney-General 

waived right to be heard. 
Reis, John G., estate of. Mary E. Perry, petitioner. Petition for 

distribution of estate to widow, there being no next of kin. 

Attorney-General waived right to be heard. 
Simmons, Robert F., estate of. Joseph L. Sweet et al., executors. 

Petition for instructions. Decree. 

Essex County. 

Ames, George L., estate of. W. H. Jelly et al., executors. Peti- 
tion for extension of time for payment of collateral inheritance 
tax. Attorney-General waived right to be heard. 

Bassett, Miranda S., estate of. Helen M. Walker, executrix. 
Petition for license to receive personal estate. Attorney- 
General waived right to be heard. 

Breed, Annie S., estate of. L. H. Farr, administrator. Petition 
for license to receive personal estate in Massachusetts. 
Attorney-General waived right to be heard. 

Calder, Robert A., estate of. Elizabeth S. Perry, executrix. 
Petition for license to receive personal estate. Attorney- 
General waived right to be heard. 

Canney, John, estate of. Henry F. Abbott et al., executors. 
Petition for license to receive personal estate in Massachusetts. 
Collateral inheritance tax to the amount of $28.71 collected. 
Attorney-General waived right to be heard. 

Carleton, James H., estate of. Henry S. Howe et als., petitioners. 
Petition of determination of tax and extension of time of 
payment. Decree. Appeal taken to Supreme Judicial Court. 

Carleton, James H., estate of. Petition for allowance of execu- 
tors' third and fourth accounts. Pending. 

Coggswell, Sarah F., estate of. Samuel W. Hopkinson, executor. 
Petition for instructions. Pending. 

Condon, Robert W., estate of. James S. Condon, administrator. 
Petition for license to receive personal estate in this Com- 
monwealth. Pending. 

Creedon, John A., estate of. Mary Creedon, administratrix. 
Petition for license to receive personal estate in Massachu- 
setts. Attorney-General waived right to be heard. 

Dow, Eben C, estate of. Irving Dow, administrator. Petition 
for license to receive personal estate. Attorney-General 
waived right to be heard. 

Duncan, Caroline, estate of. John D. Bryant, executor. Claim 
for inheritance tax and interest on several legacies, amount- 
ing to $4,300. Pending. 



150 ATTORNEY-GENERAL'S REPORT. [Jan. 

Durgin, George S., estate of. George W. Durgin et al., execu- 
tors. Petition for license to receive personal estate in Massa- 
chusetts. Attorney-General waived right to be heard. 

Eaton, Clarissa, estate of. Sevilla Fellows, petitioner. Petition 
for license to receive personal estate in Massachusetts. 
Attorney- General waived right to be heard. 

Follansbee, Ann M., estate of. James L. Rackleff, executor. 
Petition for license to receive personal estate. Pending. 

Heath, Hannah, estate of. Charles N. Heath, executor. Peti- 
tion for license to receive personal estate. Attorney-General 
waived right to be heard. 

Ingalls, Mary C, estate of. Arthur H. Wilcomb, administrator. 
Petition for license to receive personal estate. Pending. 

Kennard, Benjamin, estate of. Oliver Prime, executor. Peti- 
tion for instructions. Attorney-General waived right to be 
heard on payment of $1,362.77 tax and interest. 

Lazenby, William, estate of. Dennis W. Quill, executor. Peti- 
tion for instructions. Attorney-General waived right to be 
heard. 

Leavitt, George W., estate of. Jack Sanborn, executor. Peti- 
tion for license to receive personal estate. Attorney-General 
waived right to be heard. 

Marble, Mary G., estate of. Justin E. Varney, executor. Peti- 
tion for instructions. Attorney-General waived right to be 
heard. 

Moulton, Olive O., estate of. Henry M. Batchelder, executor. 
Petition for extension of time for payment of tax. Pend- 
ing. 

Nay, John, estate of. J. Frank Farnam, administrator. Peti- 
tion for license to receive personal estate in Massachusetts. 
Attorney-General waived right to be heard. 

Page, Abigail L., estate of. Mary A. Page, et al.^ executors. 
Petition for license to receive personal estate. Pending. 

Roberts, Grace A., estate of. Alfred Taggard, administrator. 
Petition for license to receive personal estate. Attorney- 
General waived right to be heard. 

Roberts, Lydia E., estate of. John Tuttle, administrator. Peti- 
tion for license to receive personal estate. Pending. 

Roberts, Horatio G., estate of. John Tuttle, administrator. 
Petition for license to receive personal estate in Massachu- 
setts. Pending. 

Rowe, Sylvester B., estate of. Hannah E. Rowe, administratrix. 
Petition for license to receive personal estate in Massachu- 
setts. Attorney-General waived right to be heard. 



1901.] PUBLIC DOCUMENT — No. 12. 151 

Sanborn, Charles H., estate of. Frank D. Sanborn, administrator. 
Petition for license to receive personal estate in Massachu- 
setts. Pending. 

Shute, Isaac S., estate of. John N. Thompson et al., executors. 
Petition for license to receive personal estate. Attorney- 
General waived right to be heard. 

Smith, Alfred, estate of. Arthur H. Wilcomb, administrator. 
Petition for license to receive personal estate. Pending. 

Smith, Mary T., estate of. John S. Galley, administrator. Peti- 
tion for license to receive personal estate. Attorney-General 
waived right to be heard. 

Smith, Reuben J., estate of. David L. Bartlett, executor. Peti- 
tion for leave to compromise claim of Annie G. Blake and 
Mary E. Mirse. Attorney-General waived right to be heard. 

Twiss, Nancy M., estate of. Albert E. Simpson, executor. Peti- 
tion for license to receive personal estate in Massachusetts. 
Pending. 

Vaughan, Eliza B., estate of. Henry C. Whipple, administrator. 
Petition for license to receive personal estate in Massachusetts. 
Attorney-General waived right to be heard. 

Worthen, Walter, estate of. Maria D. Worthen, executrix. Pe- 
tition for license to receive personal estate. Attorney-General 
waived right to be heard. 

Hampden County. 

Alvord, Eugenia C, estate of. Edward W. Chapin, executor. 
Petition for appraisal and instructions. Pending. 

Clapp, Harriet S., estate of. George I. Clapp, administrator. 
Petition for license to receive personal estate. Attorney-Gen- 
eral waived right to be heard. 

Hosmer, William O,, estate of. Jacob H. Marsh, executor. Pe- 
tition for license to receive personal estate in Massachusetts. 
Attorney-General waived right to be heard. 

Howell, John, estate of. James G. Dunning, public adminis- 
trator. Petition to determine the amount which may be paid 
for a monument at the grave of the deceased. Attorney- 
General waived right to be heard. 

Kellogg, Chester, estate of. Mary A. Kellogg et als., adminis- 
trators. Petition for instructions. Pending. 

Lyon, Nancy M., estate of. Henry A. King, executor. Petition 
for instructions. Pending. 

Merriman, Roswell S., estate of. Henry Fuller et al., executors. 
Petition for instructions and postponement of the time for 
payment of collateral inheritance tax. Decree. 



152 ATTORNEY-GENERAL'S REPORT. [Jan. 

Renney, William, estate of. Niles Searls, executor. Petition 
for license to receive personal estate. Pending. 

Reynolds, Theodore, estate of. E. F. Harris, executor. Petition 
for instructions and extension of time for payment of collat- 
eral inheritance tax. (This petition never entered in court.) 

Reynolds, Theodore, estate of. Frank H. King, legatee. Peti- 
tion for appointment of appraisers. Pending. 

Sherman, Sarah J., estate of. Henry L. Sherman, executor. 
Petition for instructions. Decree. Appealed to Supreme 
Judicial Court. Decree of Probate Court affirmed. 

Sherwin, Laura A., estate of. William L. Sadler, executor. 
Petition for instructions. Consented to postponement of 
time for payment of collateral inheritance tax. 

Smith, Horace, estate of. Henry S. Lee et al., trustees. Petition 
for allowance of trustees' fifth account. 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. Decree of Probate 
Court reversed. 

Whitcomb, William E., estate of. Will A. Whitcomb, executor. 
Petition for license to receive personal estate. Attorney- 
General waived right to be heard . 

Hampshire County. 

Hare, Robert W., estate of. Ella J. Hare, executrix. Petition 
for license to receive personal estate in Massachusetts. At- 
torney-General waived right to be heard. 

Hughes, Asa S., estate of. Jane Hughes, executrix. Petition 
for license to receive personal estate in Massachusetts. At- 
torney-General waived right to be heard. 

Shumway, Esther, estate of. George A. Shumway, 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, Clarissa B., estate of. Reuben Abbott, administrator. 
Petition for license to receive personal estate. Attorney- 
General waived right to be heard. 

Ames, Mary C, estate of. Franklin T. Hammond, administrator 
with the will annexed. Petition for instructions. Pending. 



1901.] PUBLIC DOCUMENT — No. 12. 153 

Ames, Mary C, estate of. George Ames, petitioner. Petition 
for reappraisal. Pending. 

Bannigan, Rose, estate of. Hugh J. Bannigan, administrator. 
Petition for license to receive personal estate in Massachu- 
setts. Attorney-General waived right to be heard. 

Berry, Abby V., estate of. Fanny E. Beemis, administratrix. 
Petition for reappraisal. Consented to appointment of ap- 
praisers. Attorney-General waived right to be heard on 
report of appraisers. 

Berry, Augustus, estate of. Mary C. Berry, executrix. Petition 
for license to receive personal estate in Massachusetts. At- 
torney-General waived right to be heard. 

Blakely, Samuel, estate of. George H. Gale, executor. Petition 
for extension of time of payment of tax. Pending. 

Boyd. Elizabeth .J., estate of. William F. Mullen, executor. 
Petition for reappraisal of real estate for purposes of deter- 
mining tax. Appraisers appointed. 

Bridges, Daniel T., estate of. Louise W. M. Bridges, devisee, 
petitioner. Petition for reappraisal. Agreed to appointment 
of Fred E. Ely, George F. Taft and Wade Keyes as apprais- 
ers. Attorney-General waived right to be heard on return of 
appraisers. 

Burke, Catherine E., estate of. Edward N. Burke, executor. 
Petition for license to receive personal estate in Massachu- 
setts. Attorney-General waived right to be heard. 

Canney, John, estate of. Henry F. Abbott, executor. Petition 
to receive personal estate in Massachusetts. Collateral in- 
heritance tax amounting to S54.03 collected. Attorney- 
General waived right to be heard. 

Conway, Mary, estate of. William Knight, administrator. Peti- 
tion for license to receive personal estate in Massachusetts. 
Pending. 

Cottle, Nancy W., estate of. Charles W. Hobbs, administrator. 
Petition for license to receive personal estate. Attorney- 
General waived right to be heard. 

Crudden, Sarah, estate of. Richard Owen etal.^ executors. Peti- 
tion for license to receive personal estate in Massachusetts. 
Pending. 

Curtice, Mary P., estate of. Georgia Bishop et als., executors. 
Petition for license to receive personal estate. Attorney- 
General waived right to be heard. 

Davis, Catherine Z., estate of. Abbie F. Davis et al., executors. 
Petition for extension of time for payment of collateral in- 
heritance tax. Attorney-General waived right to be heard. 



154 ATTORNEY-GENERAL'S REPORT. [Jan. 

Dimock, Dwight L., estate of. Samuel L. Chase, executor. 
Petition for instructions. Decree. 

Emery, Noah, estate of. Alvia H. Harding, administratrix. 
Petition for license to receive personal estate in Massachu- 
setts. Attorney-General waived right to be heard. 

Ferry, Frank A., estate of. Eugene H. Ferry, administrator. 
Petition for license to receive personal estate in Massachu- 
setts. Pending. 

Goddard, Mary T., estate of. T. G. Frothingham et al.^ exec- 
utors. Petition for instructions. Pending. 

Hall, Lewis, estate of. Lewis A. Hall et al., executors. Petition 
for instructions. Pending. 

Harrington, Charles A., estate of. Charles H. Nelson et al., 
executors. Petition for postponement of time for payment of 
collateral inheritance tax. Attorney-General waived right to 
be heard. 

Hazen, Julia H. B., estate of. Daniel G. Brockway, adminis- 
trator. Petition for license to receive personal estate in 
Massachusetts. Pending. 

Horsford, Phoebe G., estate of. Cornelia C. F. Horsford, execu- 
trix. ^Petition for instructions. Decree. 

Hosmer, William O., estate of. Jacob H. Marsh, executor. Peti- 
tion for license to receive personal estate in Massachusetts. 
Attorney General waived right to be heard. 

Howland, Lucinda, estate of. Luther Morrison, administrator. 
Petition for license to receive personal estate in Massachu- 
setts. Pending. 

Hurd, Mary A., estate of. Petition of executor for license to 
receive personal estate in this Commonwealth. 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- 
wealth. Attorney-General waived right to be heard. 

Knight, Margaret C, estate of. Estella A. Clark, executrix. 
Petition for license to receive personal estate. Pending. 

Lind, Nodiah, estate of. William H. Robinson, executor. Peti- 
tion for appointment of appraisers to reappraise estate for 
purposes of a collateral inheritance tax. Agreed to appoint- 
ment of appraisers. 

Lyford, Mary V., estate of. James H. Brock, administrator. 
Petition for license to receive personal estate in Massachu- 
setts. Pending. 

Moore, Cristiana, estate of. John E. Foster, executor. Petition 
for license to receive personal estate. Attorney-General 
waived right to be heard. 



1901.] PUBLIC DOCUMENT — No. 12. 155 

Munroe, Edmund Sewall, estate of. Horace C. Deland, executor. 
Petition for license to receive personal estate in Massachu- 
setts. Attorney-General waived riglit to be heard. 

Nickerson, Jonas C, estate of. James P. Parmenter, adminis- 
trator. Petition for instructions. Pending. 

O'Malley, Catherine T., estate of. Mary E. O'Malley, petitioner. 
Petition regarding payment of collateral inheritance tax. 
Attorney-General waived right to be heard. 

Robinson, William S., estate of. Abbott W. Robinson, executor. 
Petition for license to receive personal estate in Massachu- 
setts. Attorney-General waived right to be heard. 

Sargent, Simeon, estate of. Enoch A. Sargent, executor. Peti- 
tion for license to receive personal estate. Attorney-General 
waived right to be heard on payment of $13.08 tax. 

Searls, Solomon, estate of. Daniel F. Runnels, administrator. 
Petition for license to receive personal estate. Pending. 

Shepard, Henry, estate of. Frederick A. Holmes, administrator. 
Petition for license to receive personal estate in Massachu- 
setts. Attorney-General waived right to be heard on pay- 
ment of collateral inheritance tax amounting to $113.78 
collated. 

Simpson, Samuel A., estate of. M. Gilbert Perkins, adminis- 
trator. Petition for license to receive personal estate. At- 
torney-General waived right to be heard. 

Stiles, Lucius, estate of. Dudley P. Ladd, executor. Petition 
for reappraisal for purposes of collateral inheritance tax. 
Attorney-General waived right to be heard. 

Stone, Zina E., estate of . Alfred P. Sawyer, executor. Petition 
for instructions as to payment of collateral inheritance tax. 
Pending. 

Tewksbury, George N., estate of. Helen M. Tewksbury, execu- 
trix. Petition for license to receive personal estate. At- 
torney-General waived right to be heard. 

Townsend, Elizabeth, estate of. C. F. French, administrator 
with the will annexed. Petition for instructions. Pend- 
ing. 

Twiss, Nancy M., estate of. Albert E. Simpson, executor. 
Petition for license to receive personal estate. Pending. 

Wheeler, Horatio Q., estate of. Harriet M. Wheeler, admin- 
istratrix. Petition for license to receive personal estate 
in Massachusetts. Attorney-General waived right to be 
heard . 

Whitcomb, William E., estate of. Will A. Whitcomb, executor. 
Petition for license to receive personal estate in Massachusetts. 
Pending. 



156 ATTORNEY-GENERAL'S REPORT. [Jan. 

Wight, James, estate of. Adelaide M. Sheak et als., executors. 
Petition for extension of time for payment of inheritance tax. 
Pending. 

Wilcox, Brias D., estate of. T. W. D. Worthen, administrator. 
Petition for license to receive personal estate in Massachusetts. 
Attorney-General waived right to be heard. 

Winn, Mary Louise, estate of. James P. Parmenter, executor. 
Petition for allowance of final account of executor. Attorney- 
General waived right to be heard. 

Nantucket County, 
Wyer, James, estate of. Andrew M. Myrick, executor. Petition 
for extension of time for payment of collateral inheritance 
tax. Consented to extension of time. 

Norfolk County. 

Beck, Alice S., estate of. Sally E. P. Briggs, executrix. Peti- 
tion for postponement of time for payment of inheritance tax. 
Decree postponing payment. 

Bullard, Mary, estate of. Frederick D. Ely, executor. Petition 
for instructions. Pending. 

Cotton, Nathan Davis, estate of. George W. Burrage, executor. 
Petition for extension of time for payment of collateral inher- 
itance tax. Attorney-General waived right to be heard. 

Hawes, Lucy C, estate of. S. E. Chamberlain, administrator. 
Petition for extension of time for payment of collateral inher- 
itance tax. Attorney-General waived right to be heard. 

Leighton, John W., estate of. Anaretta T. Leighton et al., exec- 
utors. Petition for postponement of time for payment of 
legacy tax. Attorney-General waived right to be heard. 

Noyes, Augusta S., estate of. Nathaniel U. Walker, administra- 
tor de bonis non. Petition for extension of time for payment 
of collateral inheritance tax. Attorney-General waived right 
to be heard. 

Pratt, Harriet Eustis, estate of. James Longley, executor and 
trustee. Petition for extension of time for payment of certain 
taxes and for the determination of all other taxes. Consented 
to allowance of petition. 

Rhines, Helen M., estate of. John B. Rhines, executor. Peti- 
tion for extension of time of payment of collateral inheritance 
tax. Pending. 



1901.] PUBLIC DOCUMENT — No. 12. 157 

Plymouth County. 

Chapman, James H., estate of. Imogene C. Hamilton, adminis- 
tratrix. Petition for license to receive personal estate. 
Pending. 

Sweeney, William, estate of. George W. Folsom, Jr., executor. 
Petition for instructions. Pending. 

Suffolk County. 

Ames, Mary T., estate of. Frank A. Sayles, administrator. 
Petition for license to receive personal estate in Massachu- 
setts. Attorney-General waived right to be heard. 

Austin, Edward, estate of. Edward William Hooper et al.^ 
executors. Petition for instructions. Decree. Appealed to 
Supreme Judicial Court. Pending. 

Batchelder, Nathaniel P., estate of. Francis M. Hughes, adminis- 
trator. Petition for license to receive personal estate in 
Massachusetts. Pending. 

Billings, Julia M., estate of. Petition for extension of time for 
payment of inheritance tax. Attorney-General waived right 
to be heard. 

Blair, Lemuel C, estate of. Isaac B. Auten, administrator. 
Petition for license to receive personal estate in Massachu- 
setts. Attorney-General waived right to be heard. 

Blanchard, Ernest L. C, estate of. Charles H. T. J. Southard, 
executor. Petition for license to receive personal estate in 
Massachusetts. Pending. 

Brown, Abby, estate of. Clara B. Brown, administratrix. Peti- 
tion for license to receive personal estate in Massachusetts. 
Pending. 

Burgess, Albion K. P., estate of. Charles H. Barker, adminis- 
trator. Petition for license to receive personal estate in 
Massachusetts. Attorney-General waived right to be heard. 

Campbell, James C, estate of. Jonathan D. S. Smith, adminis- 
trator. Petition for license to receive personal estate. At- 
torney-General waived right to be heard. 

Bosworth, N. Elisha, estate of. Libby Bosworth et al., executors. 
Petition for license to receive personal estate in Massachu- 
setts. Attorney-General waived right to be heard. 

Brown, Stayley, estate of. Charles F. Brown et al.^ adminis- 
trators, with the will annexed. Petition for license to receive 
personal estate in Massachusetts. Attorney-General waived 
right to be heard. 



158 ATTORNEY-GENERAL'S REPORT. [Jan. 

Brown, Susan A., estate of. Charles P. Chase, executor. Peti- 
tion for license to receive personal estate. Pending. 

Bunce, Joshua E., estate of. Chester E. Bunce, administrator. 
Petition for license to receive personal estate. Attorney- 
General waived right to be heard. 

Charles, Frank L., estate of. Ada J. Charles, administratrix. 
Petition for license to receive personal estate in Massachu- 
setts. Attorney-General waived right to be heard. 

Chessman, William H., estate of. Benj. F. Brown et als., exec- 
utors. Petition for instructions. Pending. 

Cofran, Thomas M., estate of. Millie E. Cofran, administratrix. 
Petition for license to receive personal estate in Massachu- 
setts. Attorney-General waived right to be heard. 

Coit, Sarah Lloyd, estate of. Francis C. Welch, executor. Peti- 
tion for license to receive personal estate in Massachusetts. 
Attorney-General waived right to be heard. 

Coleman, Michael M., estate of. Lizzie E. Coleman, administra- 
trix. Petition for license to receive personal estate in Massa- 
chusetts. Pending. 

Collins, Anna L., estate of. Charles S. Collins, administrator. 
Petition for license to receive personal estate. Attorney- 
General waived right to be heard. 

Coolidge, Anna T., estate of. John T. Coolidge et al., executors. 
Petition for postponement of payment of legacy tax. Attor- 
ney-General waived right to be heard. 

Cushing, George W., estate of. Henrietta C. Maynard, adminis- 
tratrix. Petition for reappraisal of portion of estate and 
original appraisal of other portions. W. B. Denison, special 
appraiser. Assented to acceptance of appraisal made by 
special appraiser. 

Cutter, Edward P., estate of. Leslie C. Cornish, administrator. 
Petition for license to receive personal estate. Attorney- 
General waived right to be heard. 

Dixon, Benjamin Homer, estate of. Toronto Central Trust Cor- 
poration, petitioner. Petition for license to receive personal 
estate in Massachusetts. Attorney-General waived right to 
be heard. 

Dockum, George G., estate of. Charles A. Ross, petitioner. 
Petition for license to receive personal estate in Massachu- 
setts. Attorney-General waived right to be heard. 

Dorr, Ann, estate of. Petition to take deposition of Ann Dorr, 
who is infirm, to perpetuate certain testimony regarding the 
deposits in savings banks which may be subject to collateral 
inheritance tax. Attorney-General waived right to be heard. 



1901.] PUBLIC DOCUMENT — No. 12. 159 

Durkee, Dwight, estate of. David G. Durkee et al.^ executors. 
Petition for license to receive personal estate in this Common- 
wealth. Decree. 

Dwight, Edmund, estate of. Elizabeth Cabot, executrix. Petition 
for extension of time for payment of inheritance tax. Decree 
extending time. 

Dyer, Benjamin, estate of. Orren W. Bates, administrator. 
Petition for license to receive personal estate in Massachu- 
setts. Attorney-General waived right to be heard. 

Ellis, Victoria E., estate of. E. D. Humphresy et al.^ executors. 
Petition for license to receive personal estate in Massachu- 
setts. Attorney-General waived right to be heard. 

Emery, Mary Ellen, estate of. Samuel F. Humphrey, executor. 
Petition for license to receive personal estate in Massachu- 
setts. Attorney-General waived right to be heard. 

Flagg, Elizabeth C, estate of. Petition for proof of will, there 
being no next of kin or heirs at law. Attorney-General 
waived right to be heard. 

Fry, Eachel E., estate of. Lewis L. Angell, administrator. Peti- 
tion for license to receive personal estate in Massachusetts. 
Collateral inheritance tax amounting to $134.38 collected. 

Gennaro, Joseph D., estate of. Elvira D. Gennaro, petitioner. 
Petition for appointment of administrator. Pending. 

Grady, Mary, estate of. Joseph Grady, administrator. Petition 
for license to receive personal estate in Massachusetts. 
Attorney-General waived right to be heard. 

Grant, Ann, estate of. Frances W. Grant, executrix. Petition 
for license to receive personal estate in Massachusetts. 
Attorney-General waived right to be heard. 

Grover, Helen M., estate of. Albert F. Conant, executor. Peti- 
tion for instructions. Pending. 

Haven, Eliza A., estate of. William H. Rollins et al., executors. 
Petition for license to receive personal estate in Massachu- 
setts. Attorney-General waived right to be heard. 

Hawkins, Charles W., estate of. Laura P. Hawkins, administra- 
trix. Petition for license to receive personal estate in Massa- 
chusetts. Pending. 

Hayes, Elizabeth A., estate of. Joseph H. Hayes, administrator. 
Petition for license to receive personal estate. Attorney- 
General waived right to be heard. 

Hubbard, Charlotte R., estate of. William H. Burrows et al.^ 
executors. Petition for license to receive personal estate 
in Massachusetts. Attorney-General waived right to be 
heard. 



160 ATTORNEY-GENERAL'S REPORT. [Jan. 

Hutcbins, Aurelia, estate of. Albert E. Hutchins, administrator 
with the will annexed. Petition for license to receive personal 
estate. Attorney-G-eneral waived right to be heard. 

Hyde, Sarah B., estate of. Andreas Blume et aL, petitioners. 
Petition for instructions. Pending. 

Jaclard, Augustus P., estate of. James E. French, administrator. 
Petition for license to receive personal estate. Attorney- 
General waived right to be heard. 

Jeffries, Anna Lloyd, estate of. William A. Jeffries, executor. 
Petition for extension of time for payment of collateral 
inheritance tax. Attorney-General waived right to be heard. 

Johnson, Nathan, estate of. Addison E. Cud worth, executor. 
Petition for license to receive personal estate in Massachu- 
setts. Attorney-General waived right to be heard. 

Johnson, Susan L., estate of. Lucy L. Hale, executrix. Petition 
for license to receive personal estate in Massachusetts. 
Attorney-General waived right to be heard. 

Kane, Frank, estate of. John F. Kane, administrator. Petition 
for license to receive personal estate in Massachusetts. 
Decree. 

Kiley, Ellen, estate of. Johanna Brown et al.^ administrators. 
Petition for license to receive personal estate. Attorney- 
General waived right to be heard. 

Kingsbury, Jesse, estate of. William E. Smith, trustee. Petition 
regarding the destitute children of Warren Baptist Church. 
Attorney-General waived right to be heard. 

Long, Helen L., estate of. Abraham Long, executor. Petition 
for license to receive personal estate in Massachusetts. At- 
torney-General waived right to be heard. 

Lowell, Eliza, estate of. George A. Safford et al.^ executors. 
Petition for license to receive personal estate in Massachu- 
setts. Pending. 

Mills, John F., estate of. Mary B. Mills, guardian. Petition for 
license to receive the share of Harold P. Mills in the estate of 
John F. Mills. Attorney-General waived right to be heard. 

McDougall, Elizabeth H., estate of. Hannah T. Pendleton, ad- 
ministratrix. Petition for license to receive personal estate 
in Massachusetts. Pending, 

Morse, Joseph, estate of. George E. Bales, administrator. Pe- 
tition for license to receive personal estate in Massachusetts. 
Collateral inheritance tax collected amounting to $110.28. 

Newcomb, Fred H., estate of. Geo. W. Clyde, administrator. 
Petition for license to receive personal estate in Massachu- 
setts. Attorney-General waived right to be heard. 



1901.] PUBLIC DOCUMENT — No. 12. 161 

Noyes, Edwin, estate of. D. H. Luce et al.^ executors. Petition 
for license to receive personal estate. Pending. 

Noyes, Edward, estate of. D. H. Luce et al., trustees. Petition 
for license to receive personal estate in Massachusetts. At- 
torney-General waived right to be heard. 

Parker, Mary D., estate of. Thomas P. Blake, executor. Peti- 
tion for license to receive personal estate in Massachusetts. 
Attorney-General waived right to be heard. 

Patterson, Mary, estate of. Daniel W. Lord, administrator. 
Petition for license to receive personal estate in Massachu- 
setts. Attorney-General waived right to be heard. 

Perkins, Sarah, estate of. Sarah L. Cox, administratrix. Peti- 
tion for license to receive personal estate. Attorney-General 
waived right to be heard. 

Pierce, Ephraim P., estate of. Susan H. Pierce, executrix. Peti- 
tion for license to receive personal estate in Massachusetts. 
Attorney-General waived right to be heard. 

Pierce, Ephraim P., estate of. Susan H. Pierce, executrix. Pe- 
tition for license to receive personal estate in Massachusetts. 
Attorney-General waived right to be heard. 

Pitts, Meta T. W., estate of. William P. Wilson, executor. Pe- 
tition for postponement of the time for payment of collateral 
inheritance tax. Attorney-General waived right to be heard. 

Preston, Susan A., estate of. Lillian S. Plummer, executrix. 
Petition for license to receive personal estate in Massachu- 
setts. Attorney-General waived right to be heard. 

Prosser, Levi, estate of. Augustus E. Scott et al., executors. 
Petition for postponement of the time for payment of collat- 
eral inheritance tax. Decree. 

Prosser, Levi, estate of. Augustus E. Scott et al., trustees. 
Petition for extension of time for payment of collateral in- 
heritance tax. Attorney-General waived right to be heard. 

Richards, Louise S., estate of. Charles S. Richards, administra- 
tor. Petition for license to receive personal estate in Massa- 
chusetts. Pending. 

Richardson, Thaddeus, estate of. Frederick R. Tappan et al., 
executors. Petition for instructions. Decree. 

Riestle, Oscar, estate of. Emma E. S. Grofesik, administratrix. 
Petition for license to receive personal estate. Attorney- 
General waived right to be heard. 

Risk, Thomas, estate of. Thomas Francis Risk, executor. Peti- 
tion for license to receive personal estate. Pending. 

Sackett, Nancy Parks, estate of. Petition for license to receive 
personal estate in Massachusetts. Pending. 



162 ATTORNEY-GENERAL'S REPORT. [Jan. 

Sanford, Elliott, estate of. Charles W. West et als.^ executors. 
Petition for license to receive personal estate. Attorney- 
General waived right to be heard. 

Scarlett, Joseph, estate of. Virginia J. Moore, petitioner. Peti- 
tion for appointment of appraisers. Pending. 

Shepard, Mabelle A., estate of. Frank E. Shepard, administra- 
tor. Petition for license to receive personal estate. Attor- 
ney-General waived right to be heard. 

Shute, Isaac S., estate of. John M. Thompson, administrator. 
Petition for license to receive personal estate in Massachu- 
setts. Attorney-General waived right to be heard. 

Simpson, Lydia, estate of. Geo. S. Frost, trustee. Petition for 
license to receive personal estate in Massachusetts. Attorney- 
General waived right to be heard. 

Smith, Charlotte E., estate of. Eben Byron Smith, adminis- 
trator. Petition for license to receive personal estate. At- 
torney-General waived right to be heard. 

Smith, Elizabeth Lee, estate of. Henry King Smith, admin- 
istrator. Petition for license to receive personal estate 
in Massachusetts. Attorney-General waived right to be 
heard. 

Smith, Harriet C, estate of. Joseph P. Smith, administrator. 
Petition for license to receive personal estate. Attorney- 
General waived right to be heard. 

Snelling, Jane Lambert, estate of. Pennsylvania Company for 
Insurance on Lives and Granting Annuities, administrators. 
Petition for license to receive personal estate. Attorney- 
General waived right to be heard. 

Spaulding, Elizabeth S., estate of. F. H. McLaughlin, executor. 
Petition for license to receive personal estate in Massachu- 
setts. Attorney-General waived right to be heard. 

Spencer, Abby Anna, estate of. Frederick E. Burlingame, execu- 
tor. Petition for license to receive personal estate. Attorney- 
General waived right to be heard. 

Stackpole, Frederick D., estate of. Catherine C. Stackpole, 
executrix. Petition for extension of time for payment of 
collateral inheritance tax. Attorney-General waived right to 
be heard. 

Stebbins, Charles, estate of. Frances E. Stebbins, executrix. 
Petition for license to receive personal estate. Attorney- 
General waived right to be heard. 

Stetson, Charles T., estate of. Anne S. Stetson et al.^ adminis- 
trators. Petition for license to receive personal estate. At- 
torney-General waived right to be heard. 



1901.] PUBLIC DOCUMENT — No. 12. 163 

Storrow, James J. , estate of. Robert H. Gardiner et al. , executors. 
Petition for extension of time for payment of collateral inheri- 
tance tax. Attorney-General waived right to be heard. 

Sutton, Anne H., estate of. David Sutton, executor. Petition 
for license to receive personal estate. Pending. 

Sweeney, Ellen Towle, estate of. Henry L. Sweeney, executor. 
Petition for license to receive personal estate. Pending. 

Sweet, Hannah J. W., estate of. Frederick Baylies Allen et al., 
executors. Petition for the extension of time for the payment 
of collateral inheritance tax. Attorney-General waived right 
to be heard. 

Thompson, Elizabeth, estate of. George P. Powell, administra- 
tor. Petition for license to receive personal estate in Massa- 
chusetts. Attorney-General waived right to be heard. 

Van Arsdale, William Waldo, estate of. Henry Van Arsdale, 
executor. Petition for license to receive personal estate. 
Attorney-General waived right to be heard. 

Walton, Jennie M., estate of. Alfred P. Walton, administrator. 
Petition for license to receive personal estate. Attorney-Gen- 
eral waived right to be heard. 

Wentworth, Helen E., estate of. Clara E. Me Wain, executrix. 
Petition for license to receive personal estate. Attorney- 
General waived right to be heard. 

White, James, estate of. Anna F. White, administratrix de bonis 
non. Petition for license to receive personal estate in Massa- 
chusetts. Attorney-General waived right to be heard. 

Wilcox, Frederick, estate of. Samuel T. Camp, executor. Peti- 
tion for license to receive personal estate. Attorney-General 
waived right to be heard. 

Wilson, Kimball K., estate of. Luthera M. Wilson, executrix. 
Petition for license to receive personal estate. Attorney- 
General waived right to be heard. 

Wolcott, Harriet Frothingham, estate of. Roger Wolcott, execu- 
tor. Petition for instructions. Pending. 

Woodbury, R. Atilda, estate of. Elijah M. Shaw et al., execu- 
tors. Petition for license to receive personal estate. Attor- 
ney-General waived right to be heard. 

Woodward, Abijah, estate of. Greenleaf C. George, trustee. 
Petition for instructions. Pending. 

Worcester County. 
Barnes, Erastus W., estate of. Amasa S. Barnes, executor. Pe- 
tition for license to receive personal estate. Attorney-General 
waived right to be heard. 



164 ATTORNEY-GENERAL'S REPORT. [Jan. 

Buck, Horace B., estate of. Eliza A. Buck, executrix. Petition 
for instructions. Hearing. Pending. 

Field, Anna E. D., estate of. Wynant Vanderpool, executrix. 
Petition for license to receive personal estate. Attorney-Gen- 
eral waived right to be heard. 

Gilson, Harriet M., estate of. Amanda B. Russell, executor. 
Petition for license to receive personal estate in Massachu- 
setts. Attorney-General waived right to be heard. 

Hartshorn, George M., estate of. Lizzie E. Hartshorn Ward, 
administratrix. Petition for license to receive personal estate. 
Attorney-General waived right to be heard. 

Healey, John B., estate of. Leonard H. Healey, executor. Peti- 
tion for license to receive personal estate. Attorney-General 
waived right to be heard. 

Keyes, Israel N., estate of. Petition of executor for acceptance 
of return of appraisers appointed to fix fees. Attorney-Gen- 
eral waived right to be heard. 

Kinsman, Alcey A., estate of. Petition for license to receive per- 
sonal estate in Massachusetts. Attorney-General waived 
right to be heard. 

Learned, Walter N., estate of. Harriet A. Learned, administra- 
trix. Petition for license to receive personal estate. Attor- 
ney-General waived right to be heard. 

Newton, Harvey, estate of. Charles J. Hooper et al., executors. 
Petition for instructions and appraisal. Pending. 

Parker, M. Isadore, estate of. Evelyn L. Murdock Ward, peti- 
tioner. Petition to declare appraisal void and ordering 
reappraisal. Pending. 

Parker, M. Isadore, estate of. Jonathan Smith, executor. Peti- 
tion for extension of time for payment of collateral inheritance 
tax. Attorney-General waived right to be heard. 

Sawin, Carrie L., estate of. Farwell L. Sawin, petitioner. Peti- 
tion for license to receive personal estate. Attorney -General 
waived right to be heard. 

Taylor, Letty J., estate of. Stilman Clark, executor. Petition 
for license to receive personal estate. Attorney-General 
waived right to be heard. 

Whitcomb, Martha A., estate of. Wright Whitcomb, administra- 
tor. Petition for license to receive personal estate. Attorney- 
General waived right to be heard. 



1901.] PUBLIC DOCUMENT — No. 12. 165 



PUBLIC CHAEITABLE TRUSTS. 



Berkshire County. 
Owen, Charles M., estate of. James M. Barker et al.^ trustees. 
Petition for instructions. Attorney-General waived right to 
be heard. 

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. 

Hampden County. 

Fiske, George D., estate of. William H. Chapman, administrator. 
Petition for leave to sell real estate to pay debts. Attorney- 
General waived right to be heard. 

Fiske, George D., estate of. Eliza B. Fiske, petitioner. Petition 
to have an estate not exceeding the value of $5,000 set off to 
the petitioner. Attorney-General waived right to be heard. 

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 Judicial Court. See 176 Mass. 
349. 

Winkley, William P., estate of. Alonzo Winkley et al., execu- 
tors. Petition for instructions. Attorney-General waived 
right to be heard. 

Middlesex Comity. 

Warner, James P., estate of. C. T. Warner, administrator. 
Petition for license to receive personal estate. Attorney- 
General waived right to be heard. 

Norfolk County. 
Amory, Jeanne Philomene, Francis I. Amory et al. v. Attorney- 
General et al. Bill in equity relating to a public charity. 
Decree. 



166 ATTORNEY-GENERAL'S REPORT. [Jan. 

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. 

Crane, Zenas H., estate of. Massachusetts Charitable Eye and 
Ear Infirmary v. Attorney-General et al. Attorney-General 
waived right to be heard. 

Jackson, Charles E., estate of. Charles A. Jackson et al.y 
trustees. Petition for license to sell real estate subject to 
charitable trust. Attorney-General waived right to be heard. 

Messerve, Hopley T., estate of. George H. Penderghast, 
executor. 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. 

Smith, James, estate of. William Taylor, petitioner. Petition 
for appointment of trustee. Pending. 

Thompson, Thomas, estate of. Minot, trustee, v. Attorney- 
General. Bill in equity regarding a public charitable trust. 
Pending. 

Watterson, Robert C, estate of. Robert W. Lord, trustee. 
Public charitable trust. Petition for leave to distribute a 
portion of the estate. Pending. 

Whitney, Mary T., estate of. George E. BuUard et al., trustees. 
Petition for leave to sell real estate under terms of public 
charitable trust. Attorney-General waived right to be heard. 

Worcester County. 

Eames, Mary R., estate of. Harry J. Dudley, executor. Petition 
for instructions as to payment of legacy left for charitable 
purposes. Decree. 

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. 

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. Decree. 

Washburn, Ichabod, estate. Worcester Missionary Society v. 
Memorial Church et al. Petition for instructions relating to 
a charitable trust. Attorney-General waived right to be 
heard. 



1901.] PUBLIC DOCUMENT — No. 12. 167 

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. EUwell V. City of Northampton et als. Superior Court, 

Hampshire County. Pending. 
Elizabeth N. Thompson v. City of Northampton et als. Superior 

Court, Hampshire County. Pending. 
John A. Partridge v. City of Northampton et als. Superior Court, 

Hampshire County. Pending. 
William M. Trow v. City of Northampton et als. Superior Coutr, 

Hampshire County. Pending. 
Charles P. Damon v. City of Northampton et als. Superior Court, 

Hampshire County. Pending. 
John A. Kearns v. Connecticut River Railroad et als. Superior 

Court, Hampshire County. Pending. 
Arthur C. Guilford v. New Haven & Northampton Company et 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 Mousey 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 England Railroad Company et als, 

Superior Court, Suffolk County. Pending. 



168 ATTORNEY-GENERAL'S REPORT. [Jan. 

City of Boston v. Boston Wharf Company et als. Superior Courts 
Suffolk County. Pending. 

Bridget Ballentine et al. v. Town of Gardner. Superior Court, 
Worcester County. Pending. 

George H. Sprague v. Fitchburg. Superior Court, Worcester 
County. 

Putnam Machine Company v. Fitchburg. Superior Court, Worces- 
ter County. 

Levi W. Phelps v, Fitchburg Railroad. Superior Court, Middlesex 
County. 

Susan C. Dickinson et al. v. Fitchburg. Superior Court, Worces- 
ter County. 



1901.] PUBLIC DOCUMENT — No. 12. 169 



Suits conducted by the Attorney-General in 
Behale of State Boards and Commissions. 



The following cases have been reported to this department by 
State boards and commissions, to be conducted by the Attorney- 
General or under his direction, pursuant to the provisions of St. 
1896, c. 490: — 

1. Metropolitan Park Commission. 
Petitions to the Superior Court for assessment of damage& 
alleged to have been sustained by the taking of land by the said 
commission. 

Middlesex County. 

Alther, Henry J., v. Commonwealth. Pending. 

Alther, Julia, v. Commonwealth. Pending. 

Bell, William A., trustee, v. Commonwealth. Settled. 

Bigelow, George B., trustee, v. Commonwealth. Pending. 

Billings, Mary Martina, v. Commonwealth. Pending. 

Billings, Mary Martina, v. Commonwealth. Pending. 

Blank, Philip J., v. Commonwealth. Pending. 

Brackett, Albert, v. Commonwealth. Pending. 

Brigham, Mary, et al.^ v. Commonwealth. Pending. 

Brusendorff, Victor, et al., v. Commonwealth. Pending. 

Case, Moses, trustee, v. Boston & Maine Railroad Company^ 

Pending. Trial by jury. Reserved for full court. 
Case, Moses, trustee, v. Boston, Revere Beach & Lynn Railroad* 

Trial by jury. 
Chase, Edward M., v. Commonwealth. Pending. 
Chipman, George W., assignee, v. Commonwealth. Pending. 
Conant, Caroline M., v. Commonwealth. Settled. 
Corey, Henriette E., v. Commonwealth. Pending. 
Corse, Frances, v. Commonwealth et al. Settled. 
Craig, Isabel, v. Commonwealth. Pending. 
Crehore, Frederick M., et al., v. Commonwealth. Pending. 
Damm, August, et at., v. Commonwealth. Pending. 
Dowd, Martha A., v. Commonwealth. Pending. 
Dolan, John W., v. Commonwealth. Pending. 
Dwyer, William, v. Commonwealth. Pending. 



170 ATTORNEY-GENERAL'S REPORT. [Jan. 

Early, James A., v. Commonwealth. Pending. 

Emerson, Mary A., v. Commonwealth. Trial by jury. 

Emerson, Mary E., v. Commonwealth. Settled. 

Gill, Mary A., v. Commonwealth. Settled. 

Gould, Alice A., v. Commonwealth. Pending. 

Gould, Alice A., et al., v. Commonwealth. Pending. 

Hadley, Benj,, et al.,, v. Commonwealth. Pending. 

Hadle}^, Benj., et al.^ v. Commonwealth. Pending. 

Hadley, Benj., v. Commonwealth. Pending. 

Hadley, Benj., v. Commonwealth. Pending. 

Hale, Charles A., v. Commonwealth. Pending. 

Hall, Charles A., v. Commonwealth. Pending. 

Harrington, John A., v. Commonwealth. Pending. 

Hefler, Hannah J., et aL, v. Commonwealth. Pending. 

Hemenway, Alfred, v. Commonwealth. Pending. 

Hodges, Arthur J., v. Commonwealth. Pending. 

Johnson, Helen D., v. Commonwealth. Settled. 

Kaerger, Paul O., et al.^ v. Commonwealth. Pending. 

Kuenzel, John P., v. Commonwealth. Settled. 

Lee, George S., trustee, et al., v. Boston & Maine Railroad Com- 
pany. Settled. 

Lee, George S., et al., v. Boston, Revere Beach & Lynn Railroad 
Company. Settled. 

Lynde, A., Selwyn, v. Commonwealth. Settled. 

McCarthy, Jeremiah, heirs of, v. Commonwealth. Pending. 

McLaughlin, James, v. Commonwealth. Settled. 

McMahon, John, v. Boston, Revere Beach & Lynn Railroad Com- 
pany. Settled. 

McMahon, Rose A., v. Commonwealth. Pending. 

Mead, Charles E., et al., v. Commonwealth. Settled. 

Mead, Charles S., et als., v. Commonwealth. Settled. 

Minton, Alexander G., v. Commonwealth. Settled. 

Munz, E., et al., v. Commonwealth. Pending. 

Newton Street Railway Company v. Commonwealth. Settled. 

Niles, Sullivan, et al., v. Commonwealth. Pending. 

Noble, Lorenzo, v. Commonwealth. Middlesex County. Settled. 

O'Riorden, Patrick, v. Commonwealth. Pending. 

O'Riorden, Patrick, v. Commonwealth. Pending. 

Peterson, Jacob J. S., v. Commonwealth. Pending. 

Pratt, Marland L., v. Commonwealth. Pending. 

Preston, Marion W., v. Commonwealth. Pending. 

Quimby, Alfred W., v. Commonwealth. Pending. 

Rand, Arnold A., et als., v. Commonwealth (three cases). Pend- 
ing. 



1901.] PUBLIC DOCUMENT — No. 12. 171 

Reinhard, Adam, et al., v. Commonwealth. Pending. 

Rich, Frederick L., v. Commonwealth. Pending. 

Rich, Mabel C, v. Commonwealth. Pending. 

Ross, Frances J., et al., v. Commonwealth. Pending. 

Seaver, Ephraim Parker, et als.^ v. Commonwealth. Pending. 

Seaverns, Susan P., et al., v. Commonwealth. Pending. 

Shanahan, Michael, v. Commonwealth. Pending. 

Shepard, Allen G., v. Boston, Revere Beach & Lynn Railroad. 
Trial before county commissioners. 

Snow, Edward L., v. Commonwealth. Pending. 

Stark, Annie M., v. Commonwealth. Pending. 

Stewart, Martha P., v. Commonwealth. Pending. 

Stewart, Martha P., v. Commonwealth. Pending. 

Stone, Joseph, et al.^ v. Commonwealth. Pending. 

Sullivan, Daniel P., etal., v. Commonwealth. Pending. 

Thurston, Laura C, v. Commonwealth. Settled. 

Travers, Michael, v. Commonwealth. Pending. 

Waltham Co-operative Bank v. Commonwealth. Settled. 

Waltham Gas Light Company v. Commonwealth. Pending. 

Warner, Mary E., v. Commonwealth. Settled. 

Warren, Daniel, v. Commonwealth. Pending. 

Warren Institution for Savings et al. v. Commonwealth. Pend- 
ing. 

Wells, Edwin H., et als., v. Commonwealth. Pending. 

Whitney, Alice F., v. Commonwealth. Pending. 

Whitney, Arthur E., et al., v. Commonwealth. Pending. 

Whitney, John R., et al., trustees, v. Commonwealth. Pending. 

Wilson, Charles B., v. Commonwealth. Settled. 

Woodworth, Sarah A., v. Commonwealth. Pending. 

Wrenn, William H., v. Commonwealth. Settled. 

Norfolk County. 
Alexander, Ebenezer, trustee, v. Commonwealth. Settled. 
Bronsdon, Louis V., et al., v. Commonwealth. Pending. 
Beals, Nellie M., v. Commonwealth. Trial by jury. 
Chandler, Henry B., v. Commonwealth. Settled. 
Chase, Elvira N., v. Commonwealth. Pending. 
Curry, Frank, v. Commonwealth. Settled. 
Lowe, William, v. Commonwealth. Trial by jury. 
Mahoney, Dennis W., et al., v. Commonwealth. Pending. 
McGrath, Thomas, v. Commonwealth. Pending. 
Meston, Catherine A., v. Commonwealth. Settled. 
Miller, Grace M., v. Commonwealth. Trial by jury. 
Freefield, William H., et al, v. Commonwealth. Trial by jury. 



172 ATTORNEY-GENEEAL'S REPORT. [Jan. 

Freefield, William H., et al., trustees, v. Commonwealth. Trial by 
jury. 

Granite Railway Company v. Commonwealth. Trial by jury. 

Gray, Thomas H., v. Commonwealth. Pending. 

Healey, Timothy E., v. Commonwealth. Settled. 

Kappler, Meinrad, v. Commonwealth. Trial by jury. 

Kerivan, John, v. Commonwealth. Settled. 

Kilmain, John, v. Commonwealth. Settled. 

Klous, Seman, v. Commonwealth. Pending. 

Morse, Oliver, v. Commonwealth. Settled. 

Morse, Oliver, et al.^ v. Commonwealth. Settled. 

New England Trotting Horse Breeders' Association v. Common- 
wealth. Pending. 

Pierce, Frederick L., v. Commonwealth. Pending. 

Pieno, James C, v. Commonwealth. Pending. 

Reardon, Ellen, v. Commonwealth. Pending. 

Rice, Clifford H., et al., v. Commonwealth. Pending. 

Riley, Thomas, et al., v. Commonwealth. Trial by jury. 

Seyter, William G., v. Commonwealth. Pending. 

Weil, Albert, v. Commonwealth. Pending. 

White, Frances M. E., executrix. Pending. 

Ober, Louis P., v. Commonwealth. Pending. 

Plymouth County. 
Grimes, George, v. Commonwealth. Pending. 
Kelly, Maria, v. Commonwealth. Settled. 

Suffolk County. 
Adams, Adoniram J., v. Commonwealth. Pending. 
Atkins, Florence R., v. Commonwealth. Pending. 
Boston & Revere Electric Street Railway Company v. Common- 
wealth. Pending. 
Brodbine, James W., v. Commonwealth. Trial by jury. 
Clark, Theodore E., v. Commonwealth et at. Pending. 
Conness, John, v. Commonwealth. Pending. 
Donnelly, James J., v. Commonwealth. Pending. 
Dresser, Mary A. P., v. Commonwealth. Pending. 
Dresser, William R., v. Commonwealth. Pending. 
Emerson, Catherine, trustee, v. Commonwealth. Pending. 
Harvard College v. Commonwealth. Pending. 
Hincke, Maria Anna, v. Commonwealth. Pending. 
Jessop, Ann Elizabeth, v. Commonwealth. Pending. 
Jones, Alfred E., v. Commonwealth. Pending. 
Jones, Alfred E., v. Commonwealth. Pending. 



1901.] PUBLIC DOCUMENT — No. 12. 173 

Jones, Charles A., v. Commonwealth. Pending. 

Jones, Charles A., v. Commonwealth. Pending. 

Jones, Francis A., v. Commonwealth. Pending. 

Jones, Francis A., v. Commonwealth. Pending. 

Jones, George H., et al.^ v. Commonwealth. Pending. 

Jones, Robert J., v. Commonwealth. Pending. 

Jones, Robert J., v. Commonwealth. Pending. 

Jones, Sarah E., v. Commonwealth. Pending. 

Jones, Sarah E., v. Commonwealth. Pending. 

Kelly, Anastatia, v. Commonwealth. Settled. 

Lynn & Boston Railway Company v. Commonwealth. Pending. 

Martine, AbbaM., v. Commonwealth. Pending. 

McVicar, Peter A., et al.^ v. Commonwealth. Pending. 

Putnam, Jane, et al., v. Boston, Revere Beach & Lynn Railroad 

Company. Pending. 
Putnam, Jane, et al.^ v. Boston & Maine Railroad Company. 

Pending. 
Rogers, Mary E., v. Commonwealth. Pending. 
Sheehan, John, v. Commonwealth. Trial by jury. 
Singleton, Mary E., v. Commonwealth. Pending. 
"Wright, George F., et als., v. Commonwealth. Pending. 

2. Metropolitan Sewerage Commission. 
Petitions to the Superior Court for assessment of damages alleged 
to have been sustained by the taking of rights and easements in 
lands by said commission. 

Middlesex County, 
Stone, Joseph, et aL, v. Commonwealth. Pending. 

Norfolk County, 
Cochrane, J. Eugene, v. Commonwealth. Trial by jury. De- 
fendant excepted. Argued before full bench of the Supreme 
Judicial Court. Exceptions overruled. 

Suffolk County. 
Boston V. Commonwealth. Pending. 
Boston V. Commonwealth. Pending. 
Boston V. Kingman et al. Pending. 
Association of the Evangelical Lutheran Church for Works of 

Mercy v. Commonwealth. Pending. 
GriflSn, John, v. Commonwealth. Dismissed. 
Holyhood Cemetery Association v. Commonwealth. Pending. 
Krug, John, v. Commonwealth. Pending. 



174 ATTORNEY-GENERAL'S REPORT. [Jan. 

Nawn, Henry P., v. Commonwealth. Pending. 

Noon, Margaret, v. Commonwealth. Pending. 

Richards, Annette, et al., v. Commonwealth. Pending. 

Sheehan, John, v. Commonwealth. Referred to an auditor. 

Pending. 
Stone, Amos, et al.^ v. Commonwealth. Pending. 
Stone, Jasper W., et al.^ administrators, v. Commonwealth. 

Pending. 
Stone, Joseph, et aL,v. Commonwealth. Pending. 
Stone, Joseph, et als., v. Commonwealth. Pending. 
Tattle, Clarence E., et al., v. Commonwealth. 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. 

Middlesex County. 
Ballou, Chloe Ann, v. Commonwealth. Pending. 
Boston & Albany Railroad, petitioner. Pending. 
Buck, William H., v. Commonwealth. Pending. 
Burns, John, v. Commonwealth. Trial by jury. 
Connors, Thomas, v. Commonwealth. Settled. 
Framingham Water Company v. Commonwealth. Pending. 
Hensby, Mary J., v. Commonwealth. Trial by jury. 
Maiden v. Commonwealth. Pending. 

Maiden, Medford and Melrose v. Commonwealth. Pending. 
Medford v. Commonwealth. Pending. 
Melrose v. Commonwealth. Pending. 

Nashua River Paper Company et al. v. Commonwealth. Pending. 
PuUen, Lillian F., v. Commonwealth. Trial by jury. 

Norfolk County. 
Boston V. Commonwealth. Settled for $12,531,000, with interest 
from Nov. 1, 1900. 

Suffolk County. 
Boston & Albany Railroad Company -y. Commonwealth. Pending. 
Mason, Jacob M., v. Commonwealth. Pending. 
Wright, Francis, v. Commonwealth. Settled. 

Worcestei' County. 
Ayer, Eliza A., v. Commonwealth. Pending. 
Bacon, Emory A., v. Commonwealth. Pending. 
Bacon, Marinna, v. Commonwealth. Pending. 



1901.] PUBLIC DOCUMENT — No. 12. 175- 

Ballou, Chloe Ann, v. Commonwealth. Pending. 

Ballon, Chloe A., v. Commonwealth. Pending. 

Bathrick, Dorothy P., v. Commonwealth. Pending. 

Berlin, Andrew, v. Commonwealth. Pending. 

Bigelow Carpet Company v. Commonwealth. Pending. 

Bigelow Carpet Company v. Commonwealth. Pending. 

Bigelow Carpet Company v. Commonwealth. Pending. 

Bigelow Carpet Company v. Commonwealth. Pending. 

Bigelow, Joseph M., v. Commonwealth. Pending. 

Bigelow, Joseph M., v. Commonwealth. Pending. 

Bond, Ellen, v. Commonwealth. Pending. 

Bond Louis, v. Commonwealth. Pending. 

Bosworth, Effie M., v. Commonwealth. Pending. 

Boyd, Andrew, v. Commonwealth. Pending. 

Boynton, Abigail, v. Commonwealth. Pending. 

Boynton, Henry A., v. Commonwealth. Pending. 

Blunt, Isabelle M., v. Commonwealth. Pending. 

Brigham, Eunice F., et aL, v. Commonwealth. Pending. 

Bruce, William M., v. Commonwealth. Pending. 

Buck, William H., v. Commonwealth. Pending. 

BuUard, Abigail S., v. Commonwealth. Dismissed. 

Bullard, Charles P., v. Commonwealth. Dismissed. 

Bullard, Charles P., v. Commonwealth. Dismissed. 

Burnham, Ella L., v. Commonwealth. Pending. 

Cain, Margaret M., v. Commonwealth. Trial by jury. 

Cather, William J., v. Commonwealth. Pending. 

Chapman et al. v. Commonwealth. Pending. 

Chapman, Sarah, v. Commonwealth. Pending. 

Chapman, Walter E., v. Commonwealth. Pending. 

Chapman, Walter E., v. Commonwealth. Pending. 

Chase, Bela T., v. Commonwealth. Dismissed. 

Chase, Bela T., v. Commonwealth. Dismissed. 

Chase, Frances H., administratrix, v. Commonwealth. Pending. 

Chever, Alberta F., v. Commonwealth. Settled. 

Cook, Mary E., v. Commonwealth. Dismissed. 

Coolidge, William F., v. Commonwealth. Pending. 

Cooper, Joseph, v. Commonwealth. Pending. 

Cotting, Chas. U., et als., v. Commonwealth. Pending. 

Cowee, Edward A., v. Metropolitan Water Board and Common- 
wealth. Pending. 

Cowee, Edward A., v. Metropolitan Water Board and Common- 
wealth. Pending. 

Cowee, Edward A., v. Metropolitan Water Board and Common- 
wealth, Pendins:. 



176 ATTORNEY-GENERAL'S REPORT. [Jan. 

Cowee, Edward A., v. Metropolitan Water Board and Common- 
wealth. Pending. 

Cowee, Edward A., v. Metropolitan Water Board and Common- 
wealth. Pending. 

Cowee, Hattie L., v. Metropolitan Water Board and Common- 
wealth. Pending. 

Crooker, Ansel F., v. Commonwealth. Pending. 

Cunningham, Robert, et al., v. Commonwealth. Pending. 

Cunliffe, John, v. Commonwealth. Pending. 

Cutting, Louis, v. Commonwealth. Dismissed. 

Cutting, Mary F., v. Commonwealth. Pending. 

Dee, John, v. Commonwealth. Pending. 

Dolan, Catherine, v. Commonwealth. Pending. 

Dolan, Catherine, v. Commonwealth. Pending. 

Dondero, Guiseppe, et als., v. Commonwealth. Trial by jury. 

Dorr, James, v. Commonwealth. Pending. 

Dorr, James, v. Commonwealth. Pending. 

Dorr, James, v. Commonwealth. Pending. 

Dusoe, Charles, v. Commonwealth. Pending. 

Earle, Elizabeth iS., v. Commonwealth. Dismissed. 

Earle, Elizabeth S., v. Commonwealth. Dismissed. 

Earle, William A., v. Commonwealth. Pending. 

Fahey, Timothy, v. Commonwealth. Pending, 

Fairbanks, Edwin C, v. Commonwealth. Pending. 

Felt, Charles W., v. Commonwealth. Pending. 

Fiske, George A., v. Commonwealth. Pending. 

Flagg, Geo. A., v. Commonwealth. Pending. 

Fletcher, Elizabeth R., v. Commonwealth. Pending. 

Fowle, Waldo, v. Commonwealth. Pending. 

Frye, John A., v. Commonwealth. Pending. 

Garfield, Silas, v. Commonwealth. Pending. 

George, Nathan D., v. Commonwealth. Pending. 

Goodale, Aaron, v. Commonwealth. Pending. 

Goodale, Francis W. M., v. Commonwealth. Pending. 

Goodale, Mary, v. Commonwealth. Pending. 

Goodnow, Peter, v. Commonwealth. Settled. 

Grady, Thomas, v. Commonwealth. Settled. 

Hagar, Olive A., v. Commonwealth. Dismissed. 

Harper, Edward A., v. Commonwealth. Pending. 

Harper, Edward A., v. Commonwealth. Pending. 

Harrington, H. Josephine, v. Commonwealth. Settled. 

Harris, Charles M., v. Commonwealth. Pending. 

Harris, Melissa, v. Commonwealth. Pending. 

Haskell, John C, v. Commonwealth. Pending. 



1901.] PUBLIC DOCUMENT — No. 12. 177 

Haskell, Maria A., v. Commonwealth. Pending. 

Hastings et al. v. Commonwealth. Pending. 

Hastings, John C, v. Commonwealth. Pending. 

Hastings, John C, et al., v. Commonwealth. Pending. 

Hastings, Mary Lizzie, v. Commonwealth. Pending. 

Hawes, Frederick A., v. Commonwealth. Pending. 

Heighway, George A., v. Commonwealth. Pending. 

Holmes, George H., v. Commonwealth. Pending. 

Holmes, George H., v. Commonwealth. Pending. 

Houghton, Myron W.,^. Commonwealth. Pending. 

Howe, Israel G.,v. Commonwealth. Pending. 

Howe, Waldo B., v. Commonwealth. Dismissed. 

Hudson, George C. F., v. Commonwealth. Pending. 

Hyde, George L., v. Commonwealth. Pending. 

Jefts, Asis S., V. Commonwealth. Pending. 

Johnson, Addison, executor, v. Commonwealth. Pending. 

Johnson, Charles L., v. Commonwealth. Pending. 

Johnson, Edward S., et aZ., v. Commonwealth. Pending. 

Johnson, Edwin S., v. Commonwealth. Pending. 

Johnson, William O., v. Commonwealth. Pending. 

Johnson, William 0., v. Metropolitan Water Board. Pending. 

Kendall, George, v. Commonwealth. Pending. 

Kershaw, James H., v. Commonwealth. Pending. 

Keyes, George H., v. Commonwealth. Pending. 

Keyes, Jonathan M., v. Commonwealth. Pending. 

Kittredge, Bridget, v. Commonwealth. Settled. 

Kittredge, Julia, et ah., v. Commonwealth. Pending. 

Kittredge, Julia, v. Commonwealth. Pending. 

Knight, Henry G., v. Commonwealth. Pending. 

Lafrade, Peter, v. Commonwealth. Pending. 

Lafyette, Louisa, v. Commonwealth. Pending. 

Lawrence, Emma, v. Commonwealth. Pending. 

Lawrence, George D., v. Commonwealth. Pending. 

Lawrence, Lucretia, v. Commonwealth. Pending. 

Laythe, Sarah A., v. Commonwealth. Pending. 

Laythe, Sarah A., v. Commonwealth. Pending. 

Levi, Sarah, v. Commonwealth. Pending. 

Liberty, Pascal, v. Commonwealth. Pending. 

Longley, George H., ?;. Commonwealth. Pending. 

Lord, Joseph M., v. Commonwealth. Pending. 

Lord, Joseph M., v. Commonwealth. Pending. 

Lovell, Alfred, v. Commonwealth. Pending. 

Lovell, Angelina E., et al., v. Commonwealth. Pending. 

Lovell, David B., v. Commonwealth. Pending. 



178 ATTORNEY-GENERAL'S REPORT. [Jan. 

Lovell, Portland, v. Commonwealth. Pending. 

Lowe, Horace H., v. Commonwealth. Pending. 

Lozeau, Delia, v. Commonwealth. Pending. 

Lucius, Jeremiah, v. Commonwealth. Pending. 

Lundren, Per Arvid, v. Commonwealth. Pending. 

Lynch, Timothy J., v. Commonwealth. Settled. 

March, Harry E., v. Commonwealth. Pending. 

McAndrew, Hannah, v. Commonwealth. Pending. 

Merrill, Elizabeth A., v. Commonwealth. Pending. 

Moore, Nellie F., v. Commonwealth. Pending. 

Moran, James, v. Commonwealth. Pending. 

Morse, Amanda, v. Commonwealth. Pending. 

Morse, Lucretia, v. Commonwealth. Dismissed. 

Muzzy, Jonas, v. Commonwealth. Pending. 

Muzzy, Jonas, v. Commonwealth. Pending. 

Nashua River Paper Company et al. v. Commonwealth. Pending, 

Nault, David, v. Commonwealth. Pending. 

Newton, George B., v. Commonwealth. Pending. 

Newton, Silas, v. Commonwealth. Pending. 

Nichols, DeClinton, et al.^ v. City of Boston. Settled. 

Nichols, DeClinton, et al., v. City of Boston. Settled. 

Nichols, Luke H., et al.^ v. Commonwealth. Pending. 

Nugent, Felix,f'y. Commonwealth. Trial by jury. 

O'Connell, David, v. Commonwealth. Dismissed. 

0*Connell, David, v. Commonwealth. Dismissed. 

O'Connor, Thomas H., v. Commonwealth. Pending. 

Ovenden, William C, v. Commonwealth. Pending. 

Padden, Margaret, v. Commonwealth. Pending. 

Phelps, Sarah A., v. Commonwealth. Pending. 

Pierce,|Caroline, et al., v. Commonwealth. Pending. 

Pierce, 'Henry, v. Commonwealth. Pending. 

Pierce, Josephine L., v. Commonwealth. Settled. 

Potter, Jeremiah, v. Commonwealth. Pending. 

Prescott, John B. F., v. Commonwealth. Pending. 

Prescott, Martha E., v. Commonwealth. Pending. 

Redding, George L., et al., v. Commonwealth. Pending. 

Reed et al. v. Commonwealth. Pending. 

Reed, Alice N., v. Commonwealth. Pending. 

Reed, Charles H., 'y. Commonwealth. Pending. 

Reed, Charles H., v. Commonwealth. Pending. 

Rice, Almira F., v. Commonwealth. Pending. 

Russell, Ann Elizabeth, v. Commonwealth. Pending. 

Russell, Samuel S., v. Commonwealth. Pending, 

Ryan, Michael H.. v. Commonwealth. Pending. 



1901.] PUBLIC DOCUMENT — No. 12. 179 

Ryan, Michael S., v. Commonwealth. Pending. 

Sargent, Margaret E., v. Commonwealth. Pending. 

Sawin, Charles B., v. Commonwealth. Pending. 

Sawyer, Henry O., et als.^ v. Metropolitan Water Board and the 

Commonwealth. Pending before Supreme Judicial Court. 
Sawyer, Louise M., v. Commonwealth. Pending. 
Schmidt, Christian, v. Commonwealth. Pending. 
Sears, Joshua M., v. Commonwealth. Pending. 
Sheldon, Augustus V., v. Commonwealth. Pending. 
Shepard, Howard S., v. Commonwealth. Dismissed. 
Shepard, Howard S., v. Commonwealth. Dismissed. 
Shepard, John, v. Commonwealth. Pending. 
Short, Harriett, v. Commonwealth. Pending. 
Smith, Alice M., v. Commonwealth. Pending. 
Smith, Artemas C, v. Commonwealth. Pending. 
Smith, Charles E., v. Commonwealth. Pending. 
Smith, Walter H., v. Commonwealth. Dismissed. 
Snow, Antoine, v. Commonwealth. Pending. 
Snow Brothers, v. Commonwealth. Pending. 
Southborough, town of, v. Commonwealth. Settled. 
Spooner, Stephen H., v. Commonwealth. Dismissed. 
Staples, William H., v. Commonwealth. Pending. 
Staples, William H., et al., v. Commonwealth. Pending. 
Storms, William E., v. Commonwealth. Pending. 
Stott, James R., v. Commonwealth. Pending. 
Tatro, George, v. Commonwealth. Pending. 
Thomas, A. Mason, v. Commonwealth. Pending. 
Tobin, Mary A., v. Commonwealth. Pending. 
Tonry, Margaret F., v. Commonwealth. Pending. 
Toombs, Joseph E., v. Commonwealth. Pending. 
Toomey, John, v. Commonwealth. Pending. 
Toomey, John, v. Commonwealth. Pending. 
Waite, David P., v. Commonwealth. Pending. 
Waite, David P., v. Commonwealth. Pending. 
Warfield, Samuel R., v. Commonwealth. Pending. 
Warfield, Samuel R., v. Commonwealth. Pending. 
Warner, Mary J., v. Commonwealth. Pending. 
Warner, Mary J., v. Commonwealth. Pending. 
West Boylston Manufacturing Company v. Metropolitan Water 

Board. Pending. 
Wheeler, Samuel M., v. Commonwealth. Pending. 
Whitaker, C. Wayland, v. Commonwealth. Pending. 
White, Lucy, v. Commonwealth. Pending. 
Whiting, Alfred N., v. Commonwealth. Pending. 



180 ATTORNEr-GENERAL'S REPORT. [Jan. 

Whittemore, John M., v. Commonwealth. Pending. 
Wilder, Francis A., et al., v. Commonwealth. Pending. 
Wilder, Francis A., v. Commonwealth. Pending. 
Wilder, Harriet, v. Commonwealth. Pending. 
Wilson, James, v. Commonwealth. Pending. 
Wood, Ashley H., v. Commonwealth. Pending. 
Wood, Willie B., v. Commonwealth. Pending. 
Woods, James H., v. Commonwealth. 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. 

Barnstable County. 
Crowell, Thomas H., v. Commonwealth. Pending. 

Essex County. 
Graves, Eliza S., et al., v. Commonwealth. Trial by jury. 
Wyman, Isaac C, v. Commonwealth. Pending. 

Franklin County. 
Massamet Yarn Mills v. Commonwealth. Pending. 

Middlesex County. 
Rice, John E., et al., v. Commonwealth. Settled. 
Rice, JohnE., et al.^ v. Commonwealth. Pending. 

Norfolk County. 
Wadsworth, Cephas, v. Commonwealth. Trial by jury. 

Plymouth County. 
Taylor, Horace B., v. Commonwealth. Pending. 

Suffolk County. 
Haveland, J. B., v. Commonwealth. Pending. 

Worcester County. 
Cunningham, James, v. Commonwealth. Settled. 
Gould, Charlotte E., v. Commonwealth. 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. 



1901.] PUBLIC DOCUMENT — No. 12. 181 

Suffolk County. 
Bent, "William H., et aZ., v. Commonwealth. Pending. 
East Boston Company v. Commonwealth. Pending. 
Jeffries, Anna L., v. Commonwealth. Pending. 
Roxbury Central Wharf v. Commonwealth. Pending. 

6. Miscellaneous Cases from Above Commissions. 
Middlesex County. 

Crandall, H. Burr, v. Charles Price (superintendent) . Action of 
tort for conversion. Pending. 

Linnehan, Charles, Commonwealth v. Breach of contract grow- 
ing out of construction of metropolitan sewer in Chelsea. 
Settled. 

Sullivan, John, et al.^ Commonwealth v. Breach of contract 
growing out of construction of metropolitan sewer in Chelsea. 
Settled. 

Suffolk County. 

Bent, William H., et al.^ v. Henry W. Swift et al. Pending. 

Connolly, Mary E., v. Charles G. Craib. Action of tort to 
recover damages for personal injuries alleged to have been 
sustained by an employee of the contractor in the construc- 
tion of the metropolitan sewer, the defendant being the 
inspector employed by the Metropolitan Sewerage Commis- 
sioners. Pending. 

Hanscom, Hervey A., et al., Cambridge v. Action of tort 
growing out of accident caused by laying water pipes by 
Metropolitan Water Board in Cambridge. Pending. 

Hanscom, Hervey A., et, al., Commonwealth v. Action of con- 
tract growing out of accident caused by laying water pipes by 
Metropolitan Water Board in Cambridge. Pending. 

Metropolitan Park Commissioners, petitioners. Petition for the 
appointment of a commission to apportion the cost of main- 
tenance of the parks system among the various cities and 
towns within the metropolitan parks district. Charles Francis 
Adams, John C. Hammond and Thomas M. Stetson ap- 
pointed commissioners. Pending before Supreme Judicial 
Court on report of commissioners. 

Newton, Francis D., et al., v. Henry H. Sprague et als. Petition 
in the nature of an action of tort to recover damages caused 
by the alleged filling up of a well belonging to plaintiffs. 
Pending. 



182 ATTORNEY-GENERAL'S REPORT. [Jan. 

Rohan, Mary, v. Commonwealth. Petition in the nature of an 
action of tort for personal injuries alleged to have been 
sustained in the construction of a section of the metropolitan 
sewer. Pending. 

7. Cases arising under St. 1899, c. 457, "An Act to limit 
THE Height of Buildings in the Vicinity of the State 
House." 

Abbott, Edwin H., v. Commonwealth. Pending. 

Beebe, E. Pierson, etaL, v. Commonwealth. Pending. 

Binney, Amos, et al., v. Commonwealth. Pending. 

Binney, Arthur, v. Commonwealth. Pending. 

Binney, Henry P., v. Commonwealth. Pending. 

Brinton, Ferree, et al., v. Commonwealth. Pending before the 
Supreme Judicial Court. 

Cabot, Susan B., v. Commonwealth. Pending. 

Croft, Arthur, et al.^v. Commonwealth. Pending. 

Earl, Maria B., et al.^ v. Commonwealth. Pending. 

Endicott, William, v. Commonwealth. Pending. 

Forbes, J. Malcom, et al.^ v. Commonwealth. Pending. 

Goddard, George A., v. Commonwealth. Pending. 

Gray, Francis C, et al., v. Commonwealth. Pending. 

Heard, J. Theodore, et al., v. Commonwealth. Pending. 

HoUingsworth, Polly R., v. Commonwealth. Pending. 

Lewis, Elizabeth, v. Commonwealth. Pending. 

Paine, Robert Treat, v. Commonwealth. Pending. 

Paine, Robert Treat, et als., v. Commonwealth. Pending. 

Parker, Charles H., et al., v. Commonwealth. Pending 'before the 
Supreme Judicial Court. 

Parkman, George F., v. Commonwealth. Pending before the Su- 
preme Judicial Court. 

Perry, Emily G., v. Commonwealth. Pending. 

Read, Elise H., v. Commonwealth. Pending. 

Read, John, et al,, trustees and executors, v. Commonwealth. 
Pending. 

Ritchie, Rosa G., v. Commonwealth. Pending. 

Ruggles, Henry S., v. Commonwealth. Pending. 

Warren, Fiske, v. Commonwealth. Pending. 

Way, Charles G., v. Commonwealth. Pending. 

8. State Board of Charity. 
(a) Actions of contract pending in the Superior Court to re- 
cover charges for the support of insane paupers in State insane 
hospitals, under the provisions of Pub. Sts., c. 87, § 32. 



1901.] PUBLIC DOCUMENT — No. 12. 183 

Middlesex County. 
Cooper, Esau, Shaw, Treasurer, v. Pending. 

Suffolk County, 
Boston, city of, Phillips, Treasurer, v. Pending. 
Cambridge, city of, Marden, Treasurer, v. Settled. 
Same v. Same. Settled. 
Same v. Same. Settled. 
Same v. Same. Settled. 

Cambridge, city of, Phillips, Treasurer, v. Pending. 
Dedham, town of, Shaw, Treasurer, v. Discontinued. 
Peabody, town of, Marden, Treasurer, v. Pending. 
Reading, town of, Phillips, Treasurer, v. Pending. 
Stow, town of, Phillips, Treasurer, v. Pending. 
Waltham, city of, Bradford, Treasurer, v. Pending. 
Waltham, city of, Marden, Treasurer, v. Pending. 
Worcester, city of, Phillips, Treasurer, v. Pending. 

(6) Bastardy complaints brought under Pub. Sts., c. 85. 

Middlesex County. 
Harkins, Celia, v. Walter Harrington. Pending. 
Walsh, Ellen F., v. Thomas B. Hanlon. Settled. 



184 ATTORNEY-GENERAL'S REPORT. [Jan. 



MISCELLANEOUS CASES. 



Ahem, Maurice, v. Newton & Boston Street Railway Company. 
Bill in equity in the Circuit Court of the United States to 
restrain the defendant from complying with the provisions of 
St. 1900, c. 197, relative to the transportation of scholars in 
the public schools by street railway companies. Pending. 

Amesbury & Salisbury Gas Light Company. Penalty for exist- 
ence of sulphuretted hydrogen in its gas. Pending. 

Atlas Insurance Company (Jacob M. Newburger, manager) v. 
Commonwealth et al. Bill in equity in the Supreme Judicial 
Court for Suffolk County to require the State Treasurer to 
pay over to trustees in New York funds deposited with him. 
Decree accordingly. 

Ayer Light, Heat and Power Company. Failure to file with the 
Gas Light Commissioners the return required by St. 1886, 
0. 346, § 2, as extended by St. 1887, c. 382, § 2. Pending. 

Bay State Beneficiary Association, Attorney-General ex rel. Insur- 
ance Commissioner v. Petition to the Supreme Judicial 
Court for Suffolk County for an injunction and appointment 
of a receiver. Injunction issued, and Henry C. Hyde, Esq., 
and Henry C. Bliss, Esq., both of West Springfield, were 
appointed temporary receivers. Pending. 

Bay State Mutual Fire Insurance Company, Insurance Commis- 
sioner V. Petition to the Supreme Judicial Court for Suffolk 
County for an injunction and the appointment of a receiver. 
Injunction issued, and Herbert Parker, Esq., appointed re- 
ceiver. Pending. 

Berkshire Health and Accident Association, Attorney-General ex 
rel. Insurance Commissioner v. Petition for an injunction and 
the appointment of a receiver. Injunction issued, and Alpheus 
Sanford, Esq., of Boston, appointed receiver. Pending. 

Boston V. Commonwealth. Petition for transfer of Herbert A. 
Hector and Harry O. Hector, indigent children. Pending. 

Same v. Same. Sewer assessment on Rutherford Avenue, Charles- 
town. Pending. 

Same v. Same. Petition for the transfer of Hyman Gold, an in- 
digent child, having no settlement, to State Board of Charity. 
Pending. 



1901.] PUBLIC DOCUMENT — No. 12. 185 

Boston Terminal Company, Commonwealth v. Two petitions in 
the Superior Court for Suffolk County for assessment of 
damages for land taken for new South Union Station. Pend- 
ing. 

Boston V. Boston Wharf Company. Petition to Superior Court 
for Suffolk County for assessment of damages for land taken 
for grade crossing purposes on Congress Street. James R. 
Dunbar, Esq., appointed auditor. Pending. 

Bragg, Henry W., et al., v. Commonwealth. Petition to Superior 
Court for Suffolk County for allowance of claim of auditors 
for examination into affairs of Massachusetts Benefit Life 
Association. Pending. 

Brookfield Savings Bank, Savings Bank Commissioners v. Petition 
to the Supreme Judicial Court for Suffolk County for an 
injunction and the appointment of a receiver. Injunction 
issued, and George W. Johnson appointed receiver. Pend- 
ing. 

Bridges, Benjamin F. (Warden Massachusetts State Prison), v. 
Edward D. Bean. Claim for goods furnished to the defend- 
ant. Pending. 

Cambria Mining Company, Commissioner of Corporations v. Fail- 
ure to comply with the requirements of St. 1884, c. 330. 
Report filed. 

Carleton, Charles H., alias Charles E. Leavitt. Petition to the Su- 
preme Judicial Court for Suffolk County for writ of habeas 
corpus. Petition dismissed. 

Catholic Society of Santa Maria of the Letters of Messina, In- 
surance Commissioner v. Failure to make annual report to 
Insurance Commissioner required by St. 1899, c. 442, § 19. 
Report filed. 

Chaffee, Clara. Claim against the city of Newton for board at 
Worcester Insane Hospital. Pending. 

Chicopee, Water Commissioners of. Claim of violation of civil 
service rules. Referred to District Attorney, Charles L. 
Gardner. Pending. 

Clinton Gas Light Company, Attorney-General v. Petition to the 
Supreme Judicial Court for Suffolk County for dissolution 
and the appointment of a receiver under St. 1894, c. 476. 
Pending. 

Commonwealth Mutual Fire Insurance Company, Insurance Com- 
missioner V. 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 
William B. Stevens, Esq., appointed receiver. Pending. 



186 ATTORNEY-GENERAL'S REPORT. [Jan. 

Danvers v. Trustees of Dauvers Insane Hospital. Petition for 
the appointment of three commissioners under St. 1898, c. 
564, to determine the sum to be paid by the Commonwealth 
for water provided to the Danvers Insane Hospital by the 
town of Danvers. George A. Blaney, Edwin Dresser and 
William Wheeler appointed commissioners. Pending. 

Dearborn, Frank Elmer, v. Trustees of Danvers Insane Hospital. 
Bill in equity in Supreme Judicial Court for Suffolk County 
praying for discharge from Danvers Hospital. Bill dismissed, 

Deutscher Unterstuetzungs Verein von Boston, Insurance Com- 
missioner V. Failure to make annual report to Insurance 
Commissioner required by St. 1899, c. 442, § 19. Report 
filed. 

Donaghue, James E., et al., Herrick v. Action of contract in 
Superior Court for Essex County for board of Ann Donaghue 
in Danvers Insane Hospital. Settled. 

Draper, Eben S., et al., v. Attorney-General et al. Bill in equity 
in Supreme Judicial Court for Suffolk County praying for 
approval of scheme for spending the residue of money de- 
posited with Massachusetts Volunteer Aid Association during 
Spanish-American war. Attorney-General waived right to 
be heard. 

Eagle Mutual Fire Insurance Company, Insurance Commissioner 
V. Petition to the Supreme Judicial Court for Suffolk County 
for an injunction and the appointment of a receiver. Injunc- 
tion issued, and R. D. Weston-Smith, Esq., of Boston, ap- 
pointed receiver. Pending. 

Ellis, George H., Attorney-General ex rel. Harbor and Land Com- 
missioners V. Information in the Supreme Judicial Court for 
Middlesex County to protect the waters of a great pond under 
St. 1888, c. 318. Referred to a master. Pending. 

Equitable Accident Insurance Association, Attorney-General v. 
Petition to the Supreme Judicial Court for Suffolk County for 
an injunction and the appointment of a receiver. Injunction 
issued, and Wade Keyes, Esq., of Boston, appointed receiver. 
Pending. 

Firemen's Fire Insurance Company, Insurance Commissioner v. 
Petition to the Supreme Judicial Court for Suffolk County for 
an injunction to restrain the defendant from removing its 
books and papers from the Commonwealth, and the appoint- 
ment of a receiver to recover its capital stock distributed with- 
out authority of law. Injunction issued. Defendant recovered 
its capital stock and deposited it with the International Trust 
Company, as trustee. Pending. 



1901.] PUBLIC DOCUMENT — No. 12. 187 

Firemen's Mutual Relief Association of Taunton, Insurance Com- 
missioner V. Failure to make annual report to Insurance 
Commissioner required b}^ St. 1899, c. 442, § 19. Request 
for action withdrawn. 

Framinghara Savings Bank, Savings Bank Commissioners v. Pe- 
tition 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. 

Franklin Mutual Fire Insurance Company, Insurance Commis- 
sioner V, Petition to the Supreme Judicial Court for Suf- 
folk County for an injunction and the appointment of a 
receiver. Pending. 

Same v. Same. Failure to file annual statement for 1899 required 
by St. 1894, c. 522, § 96. Statement filed. 

Fraternal Aid, Order of, Attorney-General ex rel. Insurance 
Commissioner v. Petition to the Supreme Judicial Court for 
Suffolk County for an injunction and the appointment of a 
receiver. Injunction issued, and Winthrop H. Wade, Esq., 
of Boston, appointed receiver. Pending. 

Globe Investment Company, Savings Bank Commissioners v. 
Petition to the Supreme Judicial Court for Suffolk County, 
under St. 1888, c. 387, for an injunction and the appointment 
of a receiver. Injunction granted, and Henry A. Wyman 
appointed receiver. Pending. 

Gloucester Water Supply Company, Commonwealth v. Corpora- 
tion tax for 1895. Pending. 

Greylock Beneficiary Association, Insurance Commissioner v. 
Petition 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 A. A. Folsom of Chel- 
sea appointed receiver. Pending. 

Guardian Life Insurance Company, Insurance Commissioner v. 
Petition to the Supreme Judicial Court for Suffolk County for 
an injunction and the appointment of a receiver. Injunction 
issued, and Frank D. Allen, Esq., appointed receiver. Pending. 

Hagar, Philip S., petitioner. Petition to the Supreme Judicial 
Court for Suffolk County for a writ of habeas corpus. Peti- 
tion dismissed. 

Hampshire Savings Bank, Savings Bank Commissioners v. Peti- 
tion to the Supreme Judicial Court for Suffolk County for an 
injunction and the appointment of a receiver. Injunction 
issued, and Richard W. Irwin, Esq., and Benjamin E. Cook, 
Esq., appointed receivers. Pending. 



188 ATTORNEY-GENERAL'S REPORT. [Jan. 

Harmon, William P., v. Cattle Commissioners. Petition to the 
Superior Court for Essex County for damages. Pending. 

Haverhill Gas Light Company v. Gas and Electric Light Commis- 
sioners et al. Bill in equity in the Circuit Court of the United 
States to restrain the Board from carrying out an order to 
decrease the price of gas in Haverhill. Pending. 

Hebrew Fraternal Aid Association, Insurance Commissioner v. 
Failure to make annual report to Insurance Commissioner 
required by St. 1899, c. 442, § 19. Report filed. 

Hilton, James Manter, v. Joseph R. Leeson et als. Bill in equity 
in Supreme Judicial Court for Suffolk County, for an injunc- 
tion to restrain the Governor, Lieutenant-Governor and State 
directors of the Fitchburg Railroad Company from voting on 
the stock owned by the State in the matter of the lease to the 
Boston & Maine Railroad. Bill dismissed. Appeal taken 
to full bench. Disposed of. 

Hough, Alexander B., Commonwealth v. Claim for board of 
Julia F. Hough at Worcester Insane Hospital. Pending. 

Humbert First Artillery Mutual Benefit Association, Insurance 
Commissioner v. Failure to make annual report to Insurance 
Commissioner required by St. 1899, c. 442, § 19. Pending. 

Independent Order Sons of Abraham, Insurance Commissioner v. 
Failure to file report required by St. 1899, c. 442, § 19. 
Report filed. 

Italian Associates of Fall River, Insurance Commissioner v. 
Failure to make annual report to Insurance Commissioner 
required by St. 1899, c. 442, § 19. Pending. 

Jablochkoff Electric Lighting Company of New England, Com- 
missioner of Corporations v. Petition to the Supreme Judicial 
Court for Suffolk County for dissolution under Pub. Sts., 
c. 106, § 65. Pending. 

Jordan, Robert A., v. George P. Sanger et al., Election Commis- 
sioners of the city of Boston. Petition to the Supreme 
Judicial Court for Suffolk County for a writ of mandamus. 
Dismissed. 

Kaiser Hat and Cap Company. Claim for corporation tax for 
1897. Company in insolvency. Claim proved. Pending. 

Kimball, John F. Petition to the Supreme Judicial Court for 
Suffolk County for a writ of habeas corpus. Granted. 

Knight, Alice H., Westborough Insane Asylum v. Claim for 
board of insane patient in hospital. Referred to N. N. Jone& 
of Newbury port for collection. Pending. 

Knights of Justice, Order of. Insurance Commissioner v. Failure 
to make annual report to Insurance Commissioner required by 
St. 1899, c. 442, § 19. Pending. 



1901.] PUBLIC DOCUMENT — No. 12. 189 

L'Union Saint Joseph, Insurance Commissioner v. Failure to 
make annual report to Insurance Commissioner required by 
St. 1899, c. 442, § 19. Report filed. 

Logan, John P., v. Charles Rice and the Commonwealth. Action 
of contract. Superior Court for Franklin County. Pend- 
ing. 

MacDonald, John A., v. Commonwealth. Petition to the Supreme 
Judicial Court for Suffolk County for a writ of error to reverse 
a judgment rendered for the Commonwealth on an indictment 
charging the plaintiff with forging and uttering certain checks. 
Judgment affirmed. Reported in 173 Mass. 322. Case taken 
to United States Supreme Court by writ of error. Pending. 

Maguire, John F., petitioner. Petition to the Supreme Judicial 
Court for Suffolk County for a writ of habeas corpus. Peti- 
tioner admitted to bail. 

Massachusetts Benefit Life Association, Attorney-General ex rel. 
Insurance Commissioner v. Petition to the Supreme Judicial 
Court for Suffolk County for an injunction and the appoint- 
ment of a receiver. Injunction issued, and Arthur Lord, 
Esq., and Alfred S. Wood worth, Esq., both of Boston, 
appointed receivers. Pending. 

Massachusetts Masonic Life Association, Attorney-General ex rel. 
Insurance Commissioner v. Petition to the Supreme Judicial 
Court for Suffolk County for an injunction and a receiver 
under St. 1896, c. 515, § 6. Injunction issued, and Jonathan 
Varnes, Esq., of Springfield, appointed receiver. Pending. 

Massachusetts National Life Association, Attorney-General ex rel. 
Insurance Commissioner v. 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, and George Kress appointed receiver. Pending. 

McDowell, J. F., claim against, for merchandise furnished by 
State Prison. Pending. 

McQuestin, Fred, Commonwealth v. Action in Superior Court 
for Suffolk County for damages caused by tide-water displace- 
ment in Boston harbor. Pending. 

Medway Electric Light and Power Company. Failure to file with 
Gas Light Commissioners the return required by St. 1886, 
c. 346, § 2, as extended by St. 1887, c. 387, § 2. Pend- 
ing. 

Melrose Mutual Fire Insurance Company, Insurance Commis- 
sioner V. 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 re- 
ceiver. Pending. 



190 ATTORNEY-GENERAL'S REPORT. [Jan. 

Merchants and Manufacturers Life Association, Attorney-General 
ex rel. Insurance Commissioner v. Petition to the Superior 
Court for Suffolk County for an injunction and the appoint- 
ment of a receiver. Temporary injunction issued. Case re- 
served by E'essenden, J., for Supreme Judicial Court. Petition 
dismissed. 

Middleborough v. New York, New Haven & Hartford Railroad 
Company and the Commonwealth. Petition for damages in 
the Superior Court for Plymouth County, growing out of tak- 
ing of land for the purpose of abolishing grade crossings in 
Middleborough. Pending. 

Milford Electric Light and Power Company, Attorney-General v. 
Petition to the Supreme Judicial Court for Suffolk County for 
dissolution and the appointment of a receiver, under St. 1894, 
c. 476. Pending. 

Miners Savings Bank, Savings Bank Commissioners v. Petition 
to the Supreme Judicial Court for Suffolk County for an in- 
junction and the appointment of a receiver under the provi- 
sions of St. 1894, c. 317, § 6. Injunction issued. Pend- 
ing. 

Minnesota Savings Fund Investment Company v. Treasurer of the 
Commonwealth. Bill in equity in Superior Court for Suffolk 
County, asking for distribution of certain funds in the hands 
of the State Treasurer. Marshal P. Thompson appointed 
master. 

Morgan, Jay H., Lyman School for Boys v. Action of contract 
for services of boy placed out by trustees. Pending. 

Murphy, Clarence, 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. 

New England Mutual Accident Association, petitioners. Petition 
for appointment of receiver. Thomas Weston, Esq., of Bos- 
ton, appointed receiver. Pending. 

Newburyport & Amesbury Horse Railroad Company. Railroad 
Commissioners' tax, 1899. Pending. 

Nolan, James P., petitioner. Petition to Supreme Judicial Court 
for Suffolk County for a writ of habeas corpus. Petition 
dismissed. 



1901.] PUBLIC DOCUMENT — No. 12. 191 

Northern Mutual Relief Association, Attorney-General ex reL 
Insurance Commissioner v. Petition to the Supreme Judicial 
Court for Suffolk County for an injunction and the appoint- 
ment of a receiver. Injunction granted, and Samuel H. Hud- 
son of Boston appointed receiver. Pending. 

Nutting, Charles H.,'y. Commonwealth. Writ of error in Supreme 
Court of the United States. Pending. 

O'Reily, Richard P., v. Samuel Dalton et als. Petition to the 
Supreme Judicial Court for Suffolk County for a writ of cer- 
tiorari^ claiming want of jurisdiction by the board appointed 
under St. 1893, c. 367, § 65, in the matter of the reorganiza- 
tion of the Eighth Regiment of Infantry, M. V. M. Pending. 

Page, Herbert S., et al.^ petitioners. Petition to the Probate 
Court for Suffolk County for the appointment of a guardian 
for Alvin Page, an insane person chargeable to the State. 
Pending. 

Peare, George R., v. Socialist Labor Party. Petition to the Mu- 
nicipal Court for Suffolk County for an inquest, under St. 
1898, c. 548, § 305. Pending. 

Pentila, Andrew, v. Bekkila Helgias and Joseph H. Scott (super- 
intendent of the Massachusetts Reformatory) . An action of 
tort in the District Court for Middlesex County. Pending. 

Phoenix Rattan Company et al., Joseph F. Scott (superintendent) -u. 
Action of contract in the Superior Court for 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. 

Razor, Paul Edwin (manager Magdeburg Fire Insurance Com- 
pany), V. Commonwealth et al. Petition to the Supreme 
Judicial Court for Suffolk County to recover money deposited 
by said company with the State Treasurer. Decree in favor 
of the plaintiff. 

Security Savings Bank, Board of Savings Bank Commissioners v. 
Petition to the Supreme Judicial Court for Suffolk County for 
an injunction and the appointment of a receiver. Injunction 
granted. Pending. 

Smith, Henry 0., ei als., v. Inhabitants of Leicester and the Com- 
monwealth. Bill in equity in the Superior Court for Worcester 
County to restrain town officers from raising money to pay 
expenses for damages caused by construction of State high- 
way in Leicester. Pending. 

Society of St. Michael the Archangel, Insurance Commissioner v. 
Failure to make annual report to Insurance Commissioner 
required by St. 1899, c. 442, § 19. Report filed. 



192 ATTORNEY-GENERAL'S REPORT. [Jan. 

South Shore Masonic Mutual Relief Association of Massachusetts, 
Insurance Commissioner v. 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 J. H. Flint appointed receiver. Pending. 

Stiles & Winslow Leather Company. Claim for corporation tax 
of 1897. Claim proved in insolvency. Tax paid. 

Suffolk Mutual Accident Association, Insurance Commissioner v. 
Petition to the Supreme Judicial Court for Suffolk County for 
an injunction and the appointment of a receiver, under the 
provisions of St. 1896, c. 515, § 6. Injunction issued, and 
George S. Merrill appointed receiver. Pending. 

Suffolk Masonic Mutual Relief Association, Attorney-General v. 
Petition to the Supreme Judicial Court for Suffolk County for 
an injunction and the appointment of a receiver, under St. 
1899, c. 442, § 24. Injunction granted, and Edward T. 
Pigeon, Esq., secretary of the association, appointed receiver. 
Pending. 

Suffolk Mutual Fire Insurance Company, Insurance Commissioner 
V, Petition to the Supreme Judicial Court for Suffolk County 
for an injunction and the appointment of a receiver, under the 
provisions of St. 1894, c. 522, § 7. Injunction issued, and 
James C. Davis, Esq., appointed receiver. Pending. 

Supreme Council of United Fellowship, Insurance Commissioner -v. 
Petition 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 Oliver Storer, Esq., of 
Boston appointed receiver. Pending. 

Titcomb, George H., v. Cape Cod Ship Canal Company, George 
A. Marden, 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. 
Pending. 

Trehy, John W., Attorney -General ex rel. Board of Civil Service 
Commissioners v. Information in the nature of quo warranto 
to try the respondent's title to the office of almoner of the 
city of Chicopee. Reserved for the Supreme Judicial Court. 
Pending. 

Tyler, William B., v. Court of Registration. Writ of error, 
United States Supreme Court. Writ dismissed for want of 
jurisdiction. 

Underhill, William H,, v. Board of Registration in Pharmacy. 
Petition to the Supreme Judicial Court for Suffolk County 
for a writ of certiorari. Disposed of. 



1901.] PUBLIC DOCUMENT — No. 12. 193 

Ware, Trustees of Worcester Lunatic Hospital v. Action of 
contract for the board of Hiram L. Wood, a patient in said 
hospital. Referred to the district attorney. Pending. 

Webb, W. Seward, et al.^ v. Boston & Maine Railroad Company 
et al. Bill in equity in the Circuit Court of the United States 
to restrain the Governor, Lieutenant-Governor and Treasurer 
from voting on stock of the Fitchburg Railroad Company 
owned by the State in the matter of the lease of the Fitch- 
burg Railroad to the Boston & Maine Railroad Company. 
Bill dismissed. 

White, Etta W., petitioner. Petition to the Supreme Judicial 
Court for Suffolk County for release from the Westborough 
Insane Asylum. Remanded to asylum. Reported to Supreme 
Judicial Court. 

Wildey Casualty Company, Attorney-General ex rel. Insurance 
Commissioner v. Petition to the Supreme Judicial Court for 
Suffolk County for an injunction and the appointment of a 
receiver. Injunction granted, and Archie N. Frost, Esq., 
of Lawrence appointed receiver. Pending. 

Woburn, Board of Public Works of, Commonwealth v. Viola- 
tion of civil service rules. Referred to the district attorney. 
Pending. 

Wolf, Herman, v. Boston Municipal Court for Suffolk County. 
Damage to horse, caused by cave-in of street during the lay- 
ing of pipes by the Metropolitan Water Board. Pending. 

Woodbine, Mark, et al., Commonwealth v. Bill in equity in Su- 
perior Court for Suffolk County to restrain trespass on real 
estate belonging to Medfield Insane Asylum. Injunction 
issued. 

World Accident Insurance Company, Attorney-General ex rel. 
Insurance Commissioner v. Petition to the Supreme Judi- 
cial Court for Suffolk County for an injunction and the ap- 
pointment of a receiver. Injunction issued, and Thomas N. 
Perkins of Boston appointed receiver. Pending. 



194 



ATTORNEY-GENERAL'S REPORT. 



[Jan. 



COLLECTIONS. 



Collections have been made by this department as follows : — 

Corporation taxes for the year 1899, overdue and referred 
by the Treasurer of the Commonwealth to the Attorney- 
General for collection, f 49,039 92 

Interest on same at penal rate of twelve per cent., . . 1,746 15 

Costs, 851 46 

Miscellaneous, 6,518 17 

Total, $58,155 70 

The following table shows a detailed statement of the same : — 





Collected on 








Account of 








Corporation Tax 


Interest. 


Total. 




for 1899. 






A. B. & E. L. Shaw Company, 


$754 28 


$21 86 


$776 14 


Abram French Company, 


6,312 00 


195 68 


6,507 68 


American Cultivator Publishing 








Company, 


157 80 


6 32 


164 12 


American Lineage Publishing Com- 








pany, 


78 90 


2 52 


81 42 


Andover Press Limited, The, . 


9 46 


17 


9 63 


Arlington Hotel Company, The, . 


31 56 


1 26 


32 82 


B. H. Woodsum Company, . 


145 17 


4 93 


150 10 


Bay State Chair Company, incor- 








porated, ..... 


137 28 


3 84 


141 12 


Bay State Metal Works, 


205 14 


13 33 


218 47 


Belisle Printing and Publishing 








Company 


47 34 


1 42 


48 76 


Bolles & Wilde Company, The, . 


497 07 


15 40 


512 47 


Boston Advertising Company, 


37 87 


1 51 


39 38 


Boston Book Binding Company, . 


315 60 


5 58 


321 18 


Boston Book Company, . 


1,183 50 


24 86 


1,208 36 


Boston Cycle Company, 


142 02 


9 26 


151 28 


Boston Parcel Delivery Company, 


789 00 


23 67 


812 67 


Boston Regalia Company, 


157 80 


4 26 


162 06 


Boston Steel and Iron Company, . 


157 80 


4 26 


162 06 


Boston Stitching and Plaiting Com- 








pany, 


78 90 


95 


79 85 


Boston Traveler Company, . 


783 47 


38 40 


821 87 



1901.] 



PUBLIC DOCUMENT — No. 12. 



195 



Collected on 

Account of 

Corporation Tax 

for 1899. 



Interest. 



Total. 



Brackett's Market Corporation, 

Brockway Smith Corporation, 

Brookfield Brick Company, . 

C. W. Mutell Manufacturing Com 
pany, 

Cape Ann Granite Railway Com 
pany, 

Chelsea Express Despatch Com- 
pany, 

Chequasset Lumber Company, 

Childs & Kent Express Company 

City Ice Company, . 

Coates Clipper Manufacturing 
Company, .... 

Coburn Stationery Company, 

Columbia Electric Company, 

Columbia Engraving Company, 

Composite Brake Shoe Company, 

Co-operative Printing Society, 

Craig & Craig Company, 

Cunningham Lumber Company, 

Curtis & Pope Lumber Company, 

Cyclopaedia Publishing Company, 

Daily News Company, . 

Damon Brick Company, . 

David Myers Company, . 

Dover Stamping Company, . 

Drury Manufacturing Company, 

Dunbar Mills Company (balance) 

Dunne Lyceum Bureau, . 

E. C. Manufacturing Company, 

E. D. Shadduck Company, 

E. H. Saxton Company, . 

E. P. Sanderson Company, 

E. T. Cowdrey Company, 

E. W. Noyes Company, . 

Eastern Printing and Engraving 
Company, .... 

Evening Gazette Company, . 

Fitchburg & Suburban Street Rail- 
way Company, . 

Fitchburg Steel Ball Company, 

Frank H. Hall Company, 

Franklin Educational Company, 

Garratt-Ford Company, . 

George H. Wood Company, . 

George P. Staples & Co., incorpo 
rated, 

Gilman Snow Guard Company, 

H. B. Stevens Company, 

H. F. Ross Company, 

Hampden Trap Rock Company, 

Harcourt Paper Box Company, 



$138 07 
646 98 

137 28 

23 67 

315 60 

126 24 
711 67 
213 03 

138 86 

213 81 
34 71 

142 02 
113 61 
197 25 

6 46 

236 70 

416 59 

1,756 31 

800 67 

39 45 

143 67 
78 90 

618 57 

78 90 

150 00 

15 78 

199 61 

104 14 

149 91 

867 90 

512 85 

98 62 

102 57 
118 35 

702 21 
394 50 
73 37 
142 02 
189 36 
135 70 

789 00 
47 34 
311 81 
473 40 
100 99 
31 56 



$4 14 

14 88 
2 04 

72 

15 14 

8 07 
25 62 
12 23 
11 16 

8 55 
1 14 

6 10 
5 45 

10 38 
26 

7 10 
28 04 
55 03 
41 63 

1 97 

9 19 

2 28 
21 86 



1 
2 

5 
2 
2 
23 
9 
3 



4 08 
3 86 

19 66 
14 59 



38 68 

1 42 

18 08 

20 84 

3 12 

1 54 



$142 21 
661 86 
139 32 

24 39 

330 74 

134 31 

737 29 
225 26 
160 02 

222 36 

35 85 

148 12 

119 06 

207 63 

6 72 

243 80 

444 63 

1,811 34 

842 30 

41 42 

152 86 

81 18 
640 43 

80 35 

152 70 

16 28 

205 60 

106 53 

152 76 

891 04 

522 08 

101 87 

106 65 
122 21 

721 87 
409 09 
75 57 
148 97 
195 80 
139 77 

827 68 
48 76 
329 89 
494 24 
104 11 
33 10 



196 



ATTORNEY-GENERAL'S REPORT. 



rJan. 



Collected on 

Account of 

Corporation Tax 

for 1899. 



Interest. 



Total. 



Heliotype Printing Company, 
Henry Woods Sons Company, 
Higgins & Gififord Boat Manufact 

uring Company, . 
Holyoke Newspaper Publishing 

Company, 
Home Guaranty Mutual Insurance 

Company, .... 
Investment Corporation, 
J. A. Cummiugs Printing Com 

pany, 

J. A. Glass Company, . 

J. H. Keenan Company, 

J. P. & W. H. Emond, incorpo 

rated, 

John Cavanagh & Son Building 

Moving Company, 
Johnson Manufacturing Company 

(balance), .... 
Johnson Mercantile Company, 
Kelly Shoe Company, . 
Kimball Brothers Company, . 
L. E. Fletcher Company, 
Lang & Jacobs Company, 
Lapham Woolen Company, . 
Lawrence Equitable Co-operative 

Society 

Lexington Print Works, 
Lynn News Publishing Company, 
M. A. Swift Sons, incorporated, 
Massachusetts Construction Com 



pany, 

McLean Shoe Company, 
Medway Electric Light and Power 

Company, .... 
Mellish & Byfield Company, incor 

porated, .... 
Merrill Piano Company, 
Miles F. Brennan Company, . 
Miller Brothers Company, incor- 
porated, .... 
Monarch Horse Nail Company, 
Morgan Envelope Company, . 
Morrill Brothers Company, . 
Murphy Knitting Company, . 
Mystic Wharf and Storage Com- 
pany 

N. M. Jewett Lumber Company, 
Nantucket Electric Company, 
New England Laundry Company 
New England Motor Company, 
New England Reed Company, 



1378 72 
299 82 

40 08 

15 78 

473 40 
394 50 

88 36 

157 80 

88 36 

260 37 

295 87 

1,200 00 

47 34 

165 69 

1,341 30 

173 58 

90 73 

80 00 

135 86 

624 88 

47 34 

315 60 

2,209 20 
55 23 

172 00 

457 62 
236 70 
301 39 

631 20 

130 97 

1,071 30 

50 00 

55 23 

1,145 62 

78 90 
138 07 
12 62 
78 90 
67 37 



^3 26 
6 90 

1 20 

77 

12 62 
25 64 

2 30 
5 04 
2 47 

12 23 

5 92 



29 
1 
5 



48 28 
7 61 
3 53 



4 21 

18 95 
2 59 

16 09 

99 41 

1 70 

6 88 

14 18 
8 10 

19 28 

20 18 
6 41 

30 35 

2 21 

74 46 
2 13 



72 
79 
18 
29 



$391 98 
306 72 

41 28 

16 55 

486 02 
420 14 

90 66 

162 84 

90 83 

272 60 

301 79 

1,229 11 

48 43 
170 82 

1,389 58 

181 19 

94 26 

80 00 

140 07 
643 83 

49 93 
331 69 

2,308 61 
66 93 

178 88 



471 
244 



320 67 

651 38 

137 38 

1,101 65 

50 00 

57 44 

1,220 08 
81 03 
142 79 
13 41 
81 08 
69 66 



1901.] PUBLIC DOCUMENT — No. 12. 



197 





Collected on 








Account of 








Corporation Tax 


Interest. 


Total. 




for 1899. 






Newbmyport Herald Company, . 


$67 85 


$2 14 


$69 99 


Newport Transfer Express Com- 








pany, 


118 35 


3 54 


121 89 


Nipmack Paper Box Company, 


48 91 


1 56 


50 47 


Parlor Pride Manufacturing Com- 








pany, 


228 81 


4 04 


232 85 


Pean Medical Company, 


78 90 


3 15 


82 05 


People's Combination Clothing 








Company, 


236 70 


8 04 


244 74 


Pilgrim Iron Foundry Company, . 


64 69 


3 04 


67 73 


Plum Island Electric Street Rail- 








way Company, .... 


508 11 


25 06 


533 17 


Plymouth Stove Foundry Com- 








pany, 


168 05 


5 49 


173 54 


Portsmouth Mill Company, . 


40 47 


73 


41 20 


Putnam Company, .... 


315 60 


9 47 


325 07 


Pythian Bowling Alley Company, 


23 67 


71 


24 38 


Quincy & Nantasket Steamboat 








Company, 


135 13 


16 31 


151 44 


R. H. Long Shoe Manufacturing 








Company, 


236 70 


7 59 


244 29 


Randall Faichney Company, . 


142 84 


7 28 


150 12 


Rawson & Morrison Manufacturing 








Company, 


1,140 89 


22 82 


1,163 71 


Reliable Electric Manufacturing 








Company, 


64 69 


1 94 


66 63 


Robbins Spring Water Company, . 


539 10 


17 01 


556 11 


Rolf Provision and Grocery Com- 








pany, 


78 90 


2 36 


81 26 


Samuel Enrich Company, 


362 94 


18 14 


381 08 


Scandia Granite Works, 


35 50 


2 93 


38 43 


Shady Hill Nursery Company, 


710 10 


46 15 


756 25 


Sheldon Brothers Company, . 


33 92 


1 05 


34 97 


Springfield Construction Company, 


138 86 


4 44 


143 30 


Springfield Elevator and Pump 








Company, 


157 16 


5 34 


162 50 


Spy Company, .... 


78 90 


2 36 


81 26 


Suffolk Engraving Company, 


71 01 


1 86 


72 87 


Sumner Drug and Chemical Com- 








pany, 


189 36 


5 55 


194 91 


Swedish Publishing Company, 


29 98 


87 


30 85 


Swedish Razor Company, 


42 60 


1 28 


43 88 


Swett & Lewis Company, 


78 90 


2 20 


81 10 


T. F. Little Oil Company, 


48 12 


2 35 


50 47 


Taunton Evening News, 


31 56 


58 


32 14 


Telegram Publishing Company, . 


31 56 


57 


32 13 


Thomas F. Phillips Company, 


142 02 


4 26 


146 28 


Union Cycle Manufacturing Com- 








pany, 


197 25 


6 31 


203 56 


W. E. Rice Company, . 


231 96 


7 90 


239 86 


Wade & Reed Company, 


946 80 


66 28 


1,013 08 


Walnut Publishing Company, 


157 80 


6 46 


164 26 



198 



ATTORNEY-GENERAL'S REPORT. 



Jan. 





Collected on 

Account of 

Corporation Tax 

for 1899. 


Interest. 


Total. 


Westfield Brick Company, 

Weymouth Seam Face Granite 
Company, 

Woodward & Brown Piano Com- 
pany, 

Ziegler Electric Company, . 


$154 61 

99 41 

94 68 
320 74 


$4 64 

6 36 

4 64 
11 65 


$159 25 

105 77 

99 32 
332 39 




$47,293 77 


$1,746 15 


f49,039 92 



Miscellaneous Collections 

Amesbmy Opera House Company, fee for filing certificate of 
condition required by Pub. Sts., c. 106, § 54, 

Athol Gas and Electric Company, penalty for existence of 
sulphuretted hydrogen in gas, 

Atlantic Box Manufacturing Company, fee for filing certifi- 
cate of condition required by Pub. Sts., c, 106, § 54, . 

Bartlett, Ralph W., board of Nancy Sullivan in Worcester 
Insane Hospital, 

Bassett, Miranda S., estate of, inheritance tax. 

Bean, Edward D., account of claim for goods bought of Mas- 
sachusetts State Prison, 

Brockton Gas Light Company, penalty for existence of sul 
phuretted hydrogen in gas, 

Canney, John, estate of, collateral inheritance tax, 

Cotton and Woollen Manufacturers Mutual Insurance Com- 
pany, penalty for violation of St. 1894, c. 522, § 18, by 
printing financial statements, 

Donaghue, James, claim against, for board of Ann Donaghue 
in Danvers Insane Hospital, 

Donaghue, James E., balance due for support of Ann Dona- 
ghue in Danvers Insane Hospital, .... 

Dudley Mills, fee for filing certificate of condition required 
by Pub. Sts., c. 106, § 54, 

Fisher-Churchill Company, ibid.^ 

Franklin Educational Company, fee for filing certificate of 
condition required by Pub. Sts., c. 106, § 54, 

Fry, Rachael E., estate of, collateral inheritance tax, 

George H. Prouty Company, corporation tax, 1897, and 
interest, . 

Hampden Watch Company, fee for filing certificate of condi 
tion required by Pub. Sts., c. 106, § 54, 

Hub Express Company, failure to file certificate of condition 
required by Pub. Sts., c. 106, § 54, 

Hubbard, Charlotte R., estate of, collateral inheritance tax 



$5 00 


100 00 


5 00 


240 00 


41 62 



20 00 



100 00 


28 71 


100 00 


92 05 


84 43 


5 00 


5 00 


5 00 


134 38 


163 28 


5 00 


5 00 


76 25 



1901.] PUBLIC DOCUMENT — No. 12. 199 

Industrial Mutual Insurance Company, penalty for violation 

of St 1894, c. 522, § 18, by printing financial statements, . $100 00 
Kennard, Benj., estate of, inheritance tax and interest, . . 1,424 09 
Massachusetts National Life Association, care and custody of 

trust deposits, 98 

Merchants and Manufacturers Life Association, care and cus- 
tody of trust deposits, 2 81 

Morse, Joseph, estate of, collateral inheritance tax, . . 110 28 
New England Laundry Company, failure to file certificate of 

condition, 5 00 

Pittsfield Coal Gas Company, penalty for failure to file with 
Gas Light Commissioners the return required by St. 1886, 

c. 346, § 2, 5 00 

Sawyer, Simeon A., estate of, inheritance tax and interest, . 13 08 

Shepard, Henry E., estate of, collateral inheritance tax, . 113 78 

Shute, Isaac S., estate of, collateral inheritance tax, . . 1,050 38 
Simpson, Lydia, estate of, collateral inheritance tax, . . 929 10 
Springfield Mutual Life Association, care and custody of trust 

deposits, 3 60 

Stiles & Winslow Leather Company, corporation tax, 1897, 

and interest, 911 69 

Suburban Light and Power Company, penalty for failure to 
file with Gas Light Commissioners the return required by 

St. 1886, c. 346, § 2, 10 00 

Taunton Evening News, fee for filing certificate of condition 

required by Pub. Sts., c. 106, § 54, 5 00 

Taunton Gas Light Company, penalty for existence of sul- 
phuretted hydrogen in gas, 100 00 

United States Fire Insurance Company, penalt}' for violation 

of St. 1894, c. 522, § 20, by incurring in a single hazard a 

larger sum than one-tenth of its net assets, . . . 500 00 

Warner, James P., estate of, collateral inheritance tax, . . 2 67 

Weymouth Light and Power Company, penalty for failure to 

file with Gas Light Commissioners the return required by 

St. 1886, c. 346, § 2, 10 00 

Whiting Mutual Insurance Company, penalty for violation of 

St. 1894, c. 522, § 18, by printing financial statements, . 100 00 
Xylite Lubricating Company, fee for filing certificate of con- 
dition required by Pub. Sts., c. 106, § 54, . . . . 5 00 

$6,518 17 



200 



ATTORNEY-GENERAL'S REPORT. [Jan. 



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PUBLIC DOCUMENT — No. 12. 



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202 



ATTORNEY-GENERAL'S REPORT. [Jan. 



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1901.] PUBLIC DOCUMENT — No. 12. 203 



RULES OF PRACTICE IN INTERSTATE 
RENDITION. 



Every application to the Governor for a requisition upon the ex- 
ecutive authority of any other State or Territory, for the delivery 
up and return of any offender who has fled from the justice of this 
Commonwealth, must be made by the district or prosecuting attor- 
ney for the county or district in which the offence was committed, 
and must be in duplicate original papers, or certified copies thereof. 

The following must appear by the certificate of the district or 
prosecuting attorney : — 

(a) The full name of the person for whom extradition is asked, 
together with the name of the agent proposed, to be properly 
spelled. 

(&) 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 
request, together with the date of such application, as near as may 
be. 

(/) If the fugitive is known to be under either civil or criminal 
arrest in the State or Territory to which he is alleged to have fled, 
the fact of such arrest and the nature of the proceedings on which 
it is based must be stated. 

(g) That the application is not made for the purpose of 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. 

(/i) The nature of the crime charged, with a reference, when 
practicable, to the particular statute defining and punishing the 
same. 



204 ATTORNEY-GENERAL'S REPORT. [Jan. 

(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 
requested to be made, must be given. The fact that the alleged 
criminal was in the State where the alleged crime was committed 
at the time of the commission thereof, and is found in the State 
upon which the requisition was made, shall be sufficient evidence, 
in the absence of other proof, that he is a fugitive from justice. 

3. If an indictment has been found, certified copies, in 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. 

7. In the case of any person who has been convicted of any 
crime, and escapes after conviction, or while serving his sentence, 



1901.] PUBLIC DOCUMENT — No. 12. 205 

the application may be made by the jailer, sheriff or other officer 
having him in custody, and shall be accompanied by certified 
copies of the indictment or information, record of conviction and 
sentence upon which the person is held, with the affidavit of such 
person having him in custody, showing such escape, with the cir- 
cumstances attending the same. 

8. No requisition will be made for the extradition of any fugi- 
tive except in compliance with these rules.